"Maybe it was wrong, maybe it was too much, but it was not a fraud." David Bernick, dapper and compact, paused and looked at the jury, gauging us with penetrating dark eyes for perhaps the last time. After seven weeks of testimonies, he was summing up, talking once more about the public relations campaigns waged over the years by American tobacco companies: Beginning with their 1954 "Frank Statement" pledging to make public health their highest priority, Bernick said, the tobacco companies had tried to "push back on political pressure, regulatory pressure." They had claimed they would conduct research on tobacco and disease, yet were soon doing little more than denying a material link between smoking and disease.
Had this constituted fraud? Had this industry, perhaps the most vilified in American history, criminally led people to smoke more and longer, adding to the suffering of millions? Bernick, representing Brown & Williamson and leading the team of tobacco-industry lawyers, had coordinated the difficult task of convincing us that they had not.
A wiry, black-haired man, Bernick, from the
According to Edward Westbrook, the Trust's lead lawyer (and nearly as good in the courtroom as Bernick), the lawsuit was brought because the tobacco companies should "pay their fair share" for disease caused by the particularly deadly combination of tobacco and asbestos. The Trust had taken on responsibility to pay for asbestos-related disease resulting from Manville products. Because cigarette smoking exacerbates such disease, the Trust felt that the tobacco companies should shoulder at least a part of the burden -- and so had brought suit.
Thirty-five days earlier, at the start of the trial, my sympathies had been completely on the side of the plaintiff. I had accepted the conventional wisdom that the tobacco companies, by digging in their heels about the relation between tobacco and disease, had increased the amount of disease. I had also believed that tobacco companies had acted against the public interest in much more nefarious ways. I saw Bernick as nothing more than a callous corporate lawyer obsessed with money and protecting his client. I imagined Westbrook as a representative of the angels, suing to insure justice.
Westbrook's law firm, Ness, Motley Loadholt, Richardson & Poole of
From the time of their "Frank Statement," Westbrook said, the tobacco companies had combined to fraudulently impede the growth of public knowledge concerning the dangers of smoking. The "Frank Statement" itself, Westbrook told us, was essentially a set of lies, something the tobacco companies had never planned to follow. The main points of the "Frank Statement," signed by all of the major tobacco companies except Liggett & Meyers (now Liggett Group, Inc.) and published as an advertisement in hundreds of newspapers, were these:
|We accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business.|
|We believe the products we make are not injurious to health.|
|We always have and always will cooperate closely with those whose task it is to safeguard the public health. Frank Statement to Cigarette Smokers|
Speaking directly of lung cancer, the "Frank Statement" also said:
|That medical research of recent years indicates many possible causes of lung cancer.|
|That there is no agreement among the authorities regarding what the cause is.|
|That there is no proof that cigarette smoking is one of the causes.|
|That statistics purporting to link cigarette smoking with the disease could apply with equal force to any one of many other aspects of modern life. Indeed the validity of the statistics themselves is questioned by numerous scientists.|
Though they had knowledge and evidence to the contrary, Westbrook argued, the tobacco industry stuck to this argument for over forty years. It was not until the late 1990s that the tobacco companies finally admitted that a real link between cigarette smoking and lung cancer exists. The "Frank Statement," he told us, had been the start of the pattern of deceit that built to become the fraud that sparked this suit.
Over the course of the trial, Westbrook showed us all sorts of deceit, including the use of smoking machines which "proved" that "light" and "low-tar" cigarettes were better for smokers' lungs. The machines, as Westbrook made clear, did not smoke as people did, did not change the way they inhaled when they changed types of cigarettes. That people do this is something I knew from experience: I smoked a Camel straight much differently than I did a Vantage. That deceit, though, wasn't a major part of this particular case. Westbrook brought it up only because it helped establish a pattern. The fraud that concerned the Trust didn't rest on what type of cigarette had been smoked, only that more people had been conned into smoking longer.
"Pay your fair share." That was the first phrase Westbrook had written on his large display pad, and he had repeated it and emphasized it all the way through to his closing. But the case, as it evolved, had proven much more than an attempt to get the tobacco companies to pay for care of lung disease their products helped cause. "Pay your fair share" was only the tip of a gigantic iceberg.
The day after the summations, Judge Weinstein read the charge, giving us, for the first time, the heart of the case. Did the tobacco companies commit fraud and acts of racketeering that inflicted actual damage on the Manville Trust? That's what we jurors, he told us, had to decide. Not whether tobacco contributed to what the Manville Trust was paying for. Not whether or not it would be "right" for the tobacco companies to pay their fair share.
Before that day, throughout the weeks of the plaintiff's case, Westbrook and his team had provided us with a history of almost every aspect of the tobacco industry. As Bernick later described it in court:
What we were shown by Westbrook was not pleasant. At best, the industry had hunkered down into a blindered attitude of "if there's no material proof of causation of disease, then there's no disease." At worst, the industry actively attempted to deceive the population and the government in order to keep people smoking.This deception would be the fraud the Trust was trying to prove. As Bernick put it:
If the Trust could show deliberate deception on the part of the tobacco industry that had misled it and had materially hurt it, then a case could be made that the tobacco companies should compensate the Trust.
Bernick, through his defense and the tobacco company witnesses, had consistently argued that what the tobacco companies had done did not amount to fraud:
If it weren't fraud, he contended, then the tobacco companies couldn't be held responsible for anything at all connected with the Trust. And it was the Trust, after all, which had brought the suit. Not claimants against it, not sufferers of lung disease. The case was brought solely by the Trust due to damage it felt had been inflicted on it by the tobacco industry.
The Manville Trust had opened its doors in 1988, having been created out of the bankruptcy proceedings of Manville Corporation that began in 1982. As the Trust's website describes it:
Why should this Trust sue the tobacco industry? Where, specifically, were they hurt by the tobacco companies? According to a statement by the Alliance for a Fair Tobacco Settlement to the House Judiciary Committee on 2/5/98, they should sue because:
The '10 cents on the dollar' paid continued to be true for the Manville Trust.
Steven Kazan, a lawyer with the firm of Kazan, McClain, Edises, Simon & Abrams of Oakland, California and a long-time representative for asbestos victims, testified at the same hearing that:
Thus, the argument that the plaintiff presented goes, the tobacco companies should take up some of the burden for the disease that the asbestos trusts are shouldering, especially since they had participated in a decades-long pattern of deception.
The defense countered with evidence that the Manville Trust had accounted for tobacco damage (and had never paid for it) in setting up its various payment schedules over the years of its existence. Furthermore, the purpose of the Trust was to pay for that portion of lung disease caused by Manville products only, not that caused by other asbestos companies, not that caused by tobacco. Bernick asked:
If the Trust was paying only ten percent of what it had determined was the Manville share of lung disease, Bernick further inquired, then where had they paid for tobacco? And why should tobacco companies, then, pay the Trust?
Furthermore, Bernick continued, what had the tobacco industry done that had had a direct impact on the Trust? In his summation, Bernick quoted testimony by David Austern, formerly chief counsel for the Trust:
For the Trust to prove its case, then, it would have to show that the tobacco industry damaged it through something other than direct contact. The argument that the tobacco companies had acted fraudulently and that there were, in Westbrook's words, 'more and sicker claimants' as a result would prove to be the heart of their case.
None of us on the jury had any idea what would happen as the trial began on December 4, 2000. The judge had warned us that the case would last for eight weeks, and the survey we had filled out ran to more than thirty pages, but we had no comprehension of what we would face. We knew that this was a case against big tobacco and I, for one, was hoping for something that could allow us to force the tobacco companies to pay for at least a little more of the damage I believed they have done to our society. Though we had all promised to put aside our personal prejudices and judge fairly -- and I felt I could do that -- I am sure any number of the others waiting with me were hoping with me, too.
Only nine of us had taken chairs in the jury room an hour after we had been told to arrive that first day. The man who had complained loudly the day before that he would lose his job was gone, as were two others. A lot of replacements needed, I thought. But no: a Long Island Railroad train had killed someone on the tracks. Two jurors, delayed by the investigation, arrived a few minutes later, quickly followed by a replacement.
All there, we were ushered into the large, high-ceilinged courtroom, rather drab though once, possibly, spare and elegant. Now it was cluttered with computers, easels, and a variety of high-tech gee-gaws.The judge's bench, to our left as we entered, raised him higher even than we were in the two-tiered box. The witnesses would be lower than he and to his right. Two rows of tables stabled the lawyers, that nearest to the judge being for the plaintiff's. Separate lighting over the gallery kept the audience in gloom compared to the bright overhead fluorescents above the rest of us. Lots and lots of electronic cables connected devices all over the room, including new flat computer screens, the best one for the judge, one lesser model for the witness, and two or three on each set of lawyer tables. A huge screen (back projection) faced the jurors with two small speakers sitting on the floor right before it. The screen, we would soon discover, was too large to provide good definition, especially for video testimony. A replacement for the old overhead projectors, an "elmo," sat in front, to the judge's side of the screen. It ran through the laptop computers set up at the far end of the plaintiff's lawyer's tables and, in the first row of the gallery, for the defense.
Judge Weinstein told us, as we filed in and stood before our chairs, that we could sit, that everyone else was standing as a courtesy to us. We did, keeping our eyes on the judge. A tall man in his seventies with little hair but bushy brows, he looked like a hungry bird of prey draped with an expensive suit that did not hang well. Though he would keep his courtroom firmly in control throughout the trial, he didn't mind, we soon discovered, closing his eyes. On the rare occasion when he might have dropped off for a second and might have woken thinking he had missed something important, he asked for it again, or had it read back by the court reporter. Through the long weeks of testimony, everyone, not just the judge, but all the jurors and all the lawyers (except for Bernick, who never lost his intensity, no matter what was happening, and Westbrook, who was too controlled and careful to let it happen), sometimes had to fight off sleep. Sitting, not moving, just listening, we learned, can be extremely fatiguing.
That first day, as we tried to make ourselves comfortable in our swivel chairs, we all noticed how intently the lawyers were watching us. Thereafter, at least a couple of the dozen and more pairs of legal eyes were always upon us. We got used to this, eventually, but it could be disconcerting. Though they had found as much out about us as they could, we were still an unknown quantity to them, and would be, until the end of the case. In a very real sense, we scared them, for so much of what they were doing depended on us, this unpredictable gathering of twelve.
We were a diverse group, ranging in schooling from a Ph.D. to no education at all, in income from a banker on down to nothing. In race we were descended from the Middle East, Africa, the Caribbean, Mexico and Europe. Who amongst us, the lawyers were asking themselves, would have influence on whom? How did we feel at the start? Could we change our opinions? Could we, ultimately, be trusted to act fairly and impartially?
Over the course of the trial, we heard a great deal of testimony, both live and on videotape. Among the live witnesses were Julius Richmond, a former Surgeon General of the
Because we had been instructed not to talk about the case, we spent our time in the jury room analyzing the ties the various lawyers wore and imitating their personality quirks. We made jokes about witnesses and squabbled about who had ordered what for lunch. Still, attitudes toward the case seeped out.
By the second week of the trial, it had become apparent where most of us stood, even though we said nothing directly about the case. Juror 2, an ex-Marine about my age at the time (late 40s), was most clearly leaning toward acquittal. Juror 7, a man of Iranian background, tilted toward the plaintiff, as I did. As, I suspect, did most of the others. I expected that, once deliberations started, we would have quite a split, and I looked forward to the argument. Each day I waited and listened, hoping the plaintiff's lawyers would give me the ammunition I would need at my side during the forthcoming debate.
About the experts, after introduction via their bona fides, the judge would intone, "He [or she] may give his [or her] opinion." The importance of expert testimony to a court of law, we were discovering, is extremely high. The judge later commented upon this in the charge:
Most of the testimony in the case came from such witnesses, a long list of whom talked to us for one side or the other, most of whom had testified in numerous other cases. The lawyers loved taking them through their credentials, and, where they could, loved deriding the credentials of opposing experts, hinting, about some, that they were more professional witnesses than they were experts.
One reason they talk so much about credentials, one lawyer later told me, is that the jurors too often never get beyond the credentials and dismiss what the witness says when they find the expert's credentials discredited. Or credit what they say because of credentials.
One witness for the Trust, for example, a professor at Harvard Law School named Jon Hanson, was sneered at by the defense because he had never taken the bar exam and, therefore, had never practiced law. He was also criticized because he had never presented his "Behavioralist" views in peer-reviewed journals and had no formal scientific or statistical training.