Cornered: Big Tobacco at the Bar of Justice

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In New Orleans, the widow of an attorney who died of lung cancer vowed to avenge his death by suing the tobacco companies. In Clarksdale, Mississippi, an outraged country lawyer discovered the cost of lung cancer care as his secretary's mother lay dying. In Washington, D.C., a young pediatrician became the first FDA administrator in ninety years to decide nicotine should be regulated as a drug. All three were warned: Don't mess with Big Tobacco. Then a $9-an-hour law clerk in Louisville, Kentucky, stole thousands...
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Overview

In New Orleans, the widow of an attorney who died of lung cancer vowed to avenge his death by suing the tobacco companies. In Clarksdale, Mississippi, an outraged country lawyer discovered the cost of lung cancer care as his secretary's mother lay dying. In Washington, D.C., a young pediatrician became the first FDA administrator in ninety years to decide nicotine should be regulated as a drug. All three were warned: Don't mess with Big Tobacco. Then a $9-an-hour law clerk in Louisville, Kentucky, stole thousands of incriminating tobacco company documents. Suddenly, an untouchable industry was under siege. In the vanguard of the attack were the nation's toughest liability lawyers. Thirty-nine states would ultimately join the battle, seeking billions of Medicaid dollars spent on tobacco-related diseases. The costliest civil litigation in history had begun. The $50 billion tobacco industry had finally met its match. Motivated as much by anger as by greed, liability lawyers with noms de guerre like "the Asbestos Avenger" and "the Master of Disaster" outflanked and outsmarted the once invincible legal armies of Big Tobacco. In 1994, sixty of these lawyers came together, pooling their talents, their time, and their war chests to launch a ferocious nationwide assault. At the same time, they provided the legal muscle behind the state suits. Three years later, they had forced the industry to the negotiating table. The result is a $368 billion deal that will eventually change the way Big Tobacco does business. Cornered is the first full account of this unprecedented legal battle. It uses confidential memos to explain how the companies avoided government regulation and legal redress for so many years. It moves from the early skirmishes in rural Mississippi to strategy sessions in the back rooms of New Orleans restaurants, from a warehouse in England stuffed with 9 million company documents to the corridors of power in the nation's capital. It follows the whistle-blowers
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Editorial Reviews

Publishers Weekly - Publisher's Weekly
Taking a classic David and Goliath story, veteran newspaper reporter Pringle turns in a superb piece of reporting written with all the texture, detail and intrigue of a fine legal thriller. Pringle sees a hero in the events that led to the landmark legal settlement that compels top U.S. tobacco companies to pay $369 billion over 25 years to help the states pay for cigarette-related health care costs. Multimillionaire lawyer Wendell Gauthier of New Orleans dared to weld a coalition of the nation's leading liability lawyers, who, allied with public health activists, took on Big Tobacco. The dramatic events that led to the settlement make for a remarkable story, and Pringle gets the human details just right. His riveting canvas is peopled with dying cancer patients, angry "tobacco widows," smugly overconfident tobacco industry lawyers, compromised scientists, mendacious public relations executives and courageous whistle-blowers. He searchingly delves into the motives of the anti-tobacco lawyerssome driven by social conscience, others by guilt, still others by a religious conviction that their crusade involved doing God's work. His hard-hitting report is strewn with juicy tidbits, like this 1972 memo from a Philip Morris psychologist: "Think of the cigarette as a dispenser for a dose unit of nicotine." Not merely a thumb-wagging expos of corporate venality, this is an exceedingly well-wrought account of legal sparring and the slow awakening of federal and state government to a public health issue. Photos not seen by PW. (Feb.)
Library Journal
This book picks up where Stanton Glantz's The Cigarette Papers and Richard Kluger's Ashes to Ashes both reviewed in LJ 6/15/96 left off, telling the story of the historic $369 billion tobacco industry settlement reached in 1997the largest liability settlement in American history. While the first two books focused on the industry's suppression of internal research documenting the health consequences of smoking, Pringle's new work follows the three-year legal battle that involved over 500 law firms and thousands of lawyers. It is meticulously researched yet reads like a novelone can hardly put it down. Pringle, a journalist who has worked for the London Sunday Times and the Independent, provides vast amounts of background, behind-the-scenes information that I had missed even after following the case in the news. Written for a popular audience, this title is essential for all public and college libraries. [Previewed in Prepub Alert, LJ 6/1/97.]Eris Weaver, Marin Inst. for the Prevention of Alcohol & Other Drug Problems, San Rafael, CA
Library Journal
Pringle puts a human face on the internecine struggles to bring the tobacco interests to court--struggles that will set precedents for generations. The last decade has seen new evidence come to light but also brilliant new strategies from liability lawyers. Pringle conveys it all in a clear and concise story without either portraying the protagonists as evil capitalists and vengeful zealots or losing the narrative amid millions of factoids. LJ 3/1/98
Booknews
Follows the legal machinations of both sides of the court battles concerned with the liability of the tobacco companies for the health problems caused by tobacco addiction. From the 1987 suit brought by a fifty year old Mississippi carpenter against the American Tobacco Company to the reactions to the June 1997 deal brokered between liability lawyers and the companies, the author discusses the stolen documents, the public relations battles, and the reactions of the government and Wall Street to the unfolding drama. Annotation c. by Book News, Inc., Portland, Or.
Nicholas Lemann
. . .a lively, funny account of the events leading up to the 1997 tobacco settlement. . . .[Pringle] has done what must have been a difficult job of making a simple, coherent story out of an immensely complicated mass of technical legal and scientific material and of winnowing a cast of hundreds of characters down to a manageable number.
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Product Details

  • ISBN-13: 9780805042924
  • Publisher: Holt, Henry & Company, Inc.
  • Publication date: 1/28/1997
  • Edition description: REV
  • Edition number: 1
  • Pages: 352
  • Product dimensions: 6.34 (w) x 9.32 (h) x 1.30 (d)

Read an Excerpt

OBSERVATION
"MR. ROSS: I feel that in time an objective study should be made into ... cigarette smoking ... to make certain that people who use [cigarettes] do not place an overdue burden on the others that do not use them and that the payment they make should be equal to the costs they create.

MR. SATTERFIELD: That is a novel observation, I must confess."

--An exchange in 1969 between Arthur Ross, then chairman of the Franklin National Bank, and Congressman David Satterfield of Virginia during hearings to ban cigarette advertising on television

Holmes County, Mississippi, is depressingly poor--fifth from the bottom on the federal poverty scale. One reason is the land. The county lies sixty miles to the north of Jackson, the state capital, on the edge of the Mississippi Delta. But, in contrast to the Delta's fertile floodplain, Holmes County's red clay is unworkable and barren. Small landowners raise a few cattle and a hog or two, but in high summer the land is abandoned, blanketed in great cascading sculptures of kudzu. The county seat is Lexington, a tiny town of 20,600 built around a central square. It has a handsome redbrick courthouse with a clock tower, a thirty-foot-high Civil War statue, and several stores doing a brisk trade in secondhand goods with advertisements such as "Used Tires Guaranteed 3 Months." A mobile-home factory provides employment for the lucky few, the size of their wage packet being dependent to a large extent on the damage wrought to the Gulf Coast during hurricane season. A few miles outside Lexington, you could be in rural Central America. Poorly dressed children play in dirtybackyards with underfed dogs.

Into this southern backwater in the fall of 1987 rolled the frontline legal forces of the American Tobacco Company, maker of Lucky Strikes, Pall Malls, Tareytons, and Carltons. They were preparing to spend millions of dollars from the company's $1.5 billion in annual tobacco sales to defend a lawsuit brought by a black carpenter named Nathan Horton. Aged fifty, Horton had smoked two packs of Pall Malls a day for more than thirty years, and he blamed the American Tobacco Company for his inoperable lung cancer. The image of this huge international tobacco company descending on tiny Lexington to squash the claim of a dying carpenter was the best, and the worst, example of what those plaintiffs' lawyers who had been through a tobacco lawsuit and survived to tell the tale called "the Wall of Flesh"--a legal machine made up of hundreds of attorneys, paralegals, researchers, scientific advisers, and private investigators, not to mention public relations consultants, that form the defense team when any U.S. tobacco company is challenged in the courts. The American Tobacco Company was then owned by American Brands, which, like other tobacco giants, had diversified over the previous decade and also owned life insurance companies, a liquor company that included Jim Beam whiskey and Gilbey's gin, and various other manufacturing enterprises, including makers of office products, padlocks, and golf clubs. Nathan Horton was a self-employed carpenter who had served in the navy, where he'd begun smoking two packs a day. He'd saved enough money to build his own house for his second wife and their six children, a step up from trailers and cement-block duplexes.

In 1986, Horton was hired by a sharp-witted, personable local lawyer named Don Barrett to help build a duck-hunting camp on the nearby Yazoo River. Barrett runs a family firm known as the Barrett Law Offices across the road from the courthouse and if Lexington had a squire, it would be Don Barrett. His home is only a short walk from the courthouse square, past the police station and the county jail. It is a Southern mansion set in a salient of prosperity amid live oaks, neat lawns, and well-groomed family pets. A great Shumard oak, said to 350 years old, guards the main entrance to Barrett's house. The law practice was started in 1933 by his father, Pat, who still works there. Don Barrett is a graduate of the University of Mississippi Law School, class of '69. He started specializing in toxic waste cases and personal injury law in the seventies and became chairman of the toxic torts section of the Mississippi Trial Lawyers Association.

Like many of his colleagues in the torts business, he kept looking for a chance to take on the tobacco companies. Horton, then fifty years old, had been told by his doctor that he had two years to live. Barrett offered to represent him on a contingency fee.

To Barrett, Horton looked like a good case, perhaps the best opportunity in a while to confront the industry. Mississippi was one of ten states in the union with a tort statute of "pure" comparative fault, which means that a plaintiff can win damages if a jury decides the maker of the product bore even a fraction of the blame for an injury. In almost all the other states, a plaintiff could not recover damages unless the defendants were found to be more than 50 percent responsible. In Mississippi, in theory, a manufacturer who was held just 1 percent responsible for Horton's condition would be liable for a proportionate share of the actual damages awarded.

Horton's suit was unusual in another respect. He claimed that the tobacco company had knowingly sold cigarettes contaminated with pesticides. Barrett had obtained an American Tobacco internal memo from 1976 stating that residues of the bug killer known as DDVP were present in cigarettes, in some cases in amounts more than four times higher than the federal maximum permitted in foods. A second memo a year later reported that American Tobacco was still "exposing unprotected finished cigarettes and little cigars as well as open bulks of tobacco and wrapping materials to DDVP aerosols." The memo also said that the way the company was spraying DDVP was not in compliance with directions from the Environmental Protection Agency. It was not exactly a winning weapon, but Barrett was looking forward to using it in court.

Still another reason for Barrett's confidence was that Lexington is one of the worst places for a large, wealthy corporation to defend a case against an aggrieved individual--especially a tobacco company against a local black smoker. It takes nine of twelve jurors to decide such a case in Mississippi. Holmes County is 75 percent black and an all-black, anti-big business jury was anticipated. Mississippi is also a nontobacco state where the tobacco companies were seen as symbols of big-city corporate culture, white-run businesses manipulating poor blacks from afar. Barrett could also count on some resentment of tobacco company marketing practices. Of late, the tobacco companies had been increasing their advertising targeted to blacks, a group disproportionately affected by smoking-related diseases. Cigarette consumption was falling among whites but it had increased among blacks, with young black females accounting for the fastest growing group of new customers. Black men had a 58 percent higher incidence of lung cancer than white men and blacks lost twice as many years of life, 8.1 compared to 3.8, because of smoking-related disease. Even so, R. J. Reynolds was preparing to market a cigarette targeted at blacks directly. Called "Uptown," it was so roundly condemned by black leaders and doctors that it was eventually scrapped.

After looking at the American Tobacco Company's finances, Barrett decided to demand one of the largest-ever sums for Nathan Horton's illness: $2 million in actual damages and $15 million in exemplary or punitive damages, those intended to make an example of a company's wrongdoing. Adding together Mississippi's favorable law, the sympathy Horton could command from his peers, and the determination of Barrett and his colleagues, observers of tobacco litigation thought Barrett had the best chance yet. The veteran antitobacco campaigner Dick Daynard, of Northeastern University Law School in Boston, commented, "In Holmes County you have people who are not immediately going to assume the beneficence of established American institutions like tobacco companies."

Wall Street was taking the case seriously, too. Tobacco stocks were already heavily discounted--that is, undervalued compared with other blue-chip stocks--because of pending lawsuits. Stock analysis, intent on sending back instant reports, were preparing to descend on the little Lexington courthouse with its one public pay phone. Some analysts were predicting possible drops of 15 percent, which in the case of the biggest company, Philip Morris, meant several billion dollars of lost value.

Even as Barrett prepared the case for trial, Horton's lung cancer was steadily sapping his strength. Once a robust six feet, one and 185 pounds, he was now down to 137 pounds. He was bent and weak of voice, preserved by blood transfusions and dependent on powerful painkillers and other medications. It became clear he would not survive to take part in the trial. Late in January, Morton Mintz of The Washington Post interviewed him at home. They talked about his son, who had studied pharmacy at Ole Miss, and about fishing, but also about death. Horton said, "I have some good days, and I have some days when I cry all day. Some nights," he said, he was "scared to go to sleep, because this will be the end of it." Other times, he had "nightmares about cigarettes. I get to dream about them, craving. If it were so that cigarettes did give me cancer, I wish people would know it. I would hate for anyone to be in the position that I'm in right now." He died a few days later. He was buried in a tiny cemetery down the dirt road from his house. The Veterans Administration picked up the bill for the funeral and gave him a military headstone. His wife, Ella, took up the case on his behalf.

The first sign of American Tobacco's extraordinary commitment to its defense in the Horton case came that fall. At the courthouse in Lexington, a team of private investigators arrived, having come all the way from Los Angeles to carry out a thorough examination of the five hundred names on the jury register and make background files on all of them. The staff at the courthouse was aghast. Earline Hart, a young black woman who was the deputy circuit clerk when the L.A. team arrived, particularly remembers a handsome surfer type named Steve. She never knew his surname. "They went through all the court dockets, civil and criminal," she recalled, "Including copies of marriage records or any liens against property. When they were finished with our records, they went to the Tax Collector's Office to find out if they were property owners, and then they went to the Justice Court to see if they had any misdemeanors filed against them." The courthouse had never witnessed this kind of pretrial investigation.

The company also hired "consultants": local leaders of the community who could advise the defense lawyers on reactions of the jury members once the trial began. Their job was to sit in the courtroom each day and act as a "shadow jury." Earline Hart called them the "fan club" because they would turn up each day and sit on the tobacco company's side of the court. The courtroom, which holds about 150 people comfortably, had up to 300 spectators each day. Local people stood in line to be sure of getting a seat. About fifteen or twenty were members of the "fan club," and anyone who sat in one of "their" seats was promptly asked to move elsewhere. Dick Daynard, who came down from Boston to observe the trial, put his briefcase on one of the reserved seats, and went to get a drink of water. When he came back, his briefcase had been moved to the other side of the courtroom. He was told that this was where the defendant's trial consultants sat. The effect was to let the jury know they were being watched by community leaders who had control over the welfare and economy of the county. "They always began the day shaking hands with the defense lawyers in full view of the jury," he recalls. "I've been in lots of courtrooms in my life and nobody's ever moved my briefcase from one bench to another." Although the tobacco company never admitted paying them, some of the consultants received $50 an hour, more than many workers in Holmes County made in a week.

American Tobacco hired five Mississippi law firms to help defend the case. The leader of the team was James Upshaw of nearby Greenwood. The company's New York lawyers were also present in force. They rented a wing of the local morel and sectioned it off with security guards. Room service meals were provided by the restaurant next door. The out-of-state lawyers quickly discovered that Holmes County is dry and the only local liquor store in Lexington was the Beveridge Shop. For years, the store's supply of Bombay gin had been gathering dust on the shelves, since the locals preferred whiskey. Soon after the tobacco lawyers hit town, the gin disappeared. There also seemed no end to the company's expense account. In Lexington, the defense team rented a house to serve as office space. The Federal Express delivery man made frequent visits there. On his last trip after the trial, he picked up a load of 1,500 pounds of documents bound for New York, at a cost of $5,000.

Barrett's funds, by contrast, were severely limited and his operation was local. It included Fred Clark, a black lawyer from Greenwood, and Charles McTeer, another black lawyer, from Greenville. Clark had graduated from Ole Miss law school ten years earlier and had worked with Barrett on toxic waste cases. McTeer had graduated from Rutgers in 1972 and was a well-known civil rights lawyer.

To bolster his case, Barrett had deposed the company's former chairman and CEO, Robert Heimann. During two hours of examination about his twenty-five years with the company, Heimann showed himself to be arrogant and uncaring. Among several arresting observations, Heimann claimed that the idea that smoking was hazardous to health had never occurred to him or to anyone else in the company and he could not recall his board of directors ever discussing the issue. Asked whether it had ever occurred to the company that one day researchers would establish that smoking was hazardous to health, Mr. Heimann simply said, "No." Although he had never studied medicine and was not a statistician, the former chairman claimed that he was more qualified than a medical doctor to pronounce on epidemiological findings. The 1964 Surgeon General's report that was the first to establish a causal link between lung cancer and smoking was based on "spurious statistics" and had been advocated in "a reprehensible propaganda campaign," he said. Asked whether the Surgeon General was more qualified than he to determine if smoking is hazardous to health, Heimann replied, "No." He said, "Most physicians have little or no knowledge of statistical nuances and would be easily taken in and misguided by their improper use."

"So, is it your opinion that you are more qualified than a medical doctor?" he was asked.

"In that area, yes," replied Heimann.

"Did any senior executive [of the company] ever consult with any professional medical association ... to determine if there were health, hazards associated with smoking?"

"Not that I know of," answered Heimann.

Nearly a year after Horton's death, the trial began on January 5, 1988. Barrett put up a brave front. "It won't be long," he said of the tobacco industry, "before the house of cards comes tumbling down ... or we slink back into our little holes, never to be heard from again." In his opening remarks, Barrett told the jury of the toxic cocktail of substances in cigarette smoke--from radioactive polonium-210 to high-phosphate fertilizers, residues of pesticides, and even microscopic particles "similar to asbestos." How could Nathan Horton possibly have known all this? he asked. And, therefore, how could he be said to have accepted all the risks? Defusing the personal responsibility factor, Barrett admitted Horton had to some extent been negligent in smoking Pall Mall cigarettes. But so had the company for selling them. "We accept our responsibility. The American Tobacco Company refuses to accept theirs, and that's what this lawsuit is all about." The company's defense ran to the usual argument. Horton was a strong-willed man totally in control of his life. If he chose to smoke and continued despite the 1966 warnings on the cigarette packs, advice from his family, his friends, and even his high school football coach--whom the company had tracked down--then that was his decision.

For almost a month the arguments went back and forth. All the while, the "fan club" dutifully turned up and made their observations for the defense lawyers: the jury was clearly confused by some of the medical evidence, and the word around town was that some of them thought that Barrett had asked far too much in damages. It was an amount of money only dreamed of in Lexington. In its closing speeches, the company charged that the medical experts who testified for Horton were suspect because they were zealots on a crusade against the company and that the plaintiffs' lawyers were out to make big bucks from the industry and out of the controversy over smoking and health. Barrett retorted that he was "proud to be on a crusade to clean up the tobacco industry."

The jury retired on January 28 with a key instruction from the judge that the company could not be held responsible in comparative fault unless the jury agreed it had been selling cigarettes it knew to contain harmful contaminants. As to the $15 million punitive award, the judge told the members of the jury--eleven blacks and one white--that they would have to find that the company had a reckless disregard for the public health in failing to test their cigarettes properly if they wanted to award punitive damages.

On the first day of deliberations, the jury deadlocked, eight in favor of the plaintiff and four for the company. Agreement seemed a long way off, and they were sequestered for the night in a motel in Greenwood, fifteen miles away. By the afternoon of the next day, the jurors were split seven to five in favor of the company and told the judge they couldn't agree. The judge declared a mistrial. The company declared victory, and the plaintiffs cried foul.

Barrett tried to open a judicial inquiry into whether the company's consultants had tampered with the jury. The judge's finding was that one of the consultants had made an improper call to two of the jurors but there was no criminal wrongdoing. The judge also blocked Barrett's efforts to subpoena all the consultants to determine exactly why they had been hired and how much they had been paid. Such a process, the judge ruled, could have a "chilling effect" on their future efforts to take on consultant work--a job that was perfectly legitimate. The two sides dispersed--American Tobacco with a legal bill estimated to be around $10 million and the Barrett Law Offices with a debt of $260,000 in out-of-pocket expenses and $2 million in billable time. Don Barrett had taken out a second mortgage on his house to cover the costs, but he vowed to fight on. "We came so close," he said, "once you slap the bully in the bar ... you're in for the whole fight." But he could not have imagined where that fight would eventually lead him. The retrial was moved to Oxford, the site of Ole Miss, his alma mater, because, the judge ruled there had been so much publicity and so much public sniping between the two sides that a new Lexington jury would be prejudiced. After hearing eleven days of evidence in the Oxford trial, the jury decided that cigarette smoking had caused Nathan Horton's lung cancer but refused to award damages, saying both the company and Horton were at fault. Each side put its own spin on the verdict. Barrett claimed victory because the jury had found Pall Malls were dangerous and Horton had not been fully aware of the risks. A lawyer for the tobacco companies said that when a jury awards no damages the tort isn't complete, and he claimed victory, too.

Don Barrett had never smoked but during the Horton trial he developed what he called his "cigarette habit"; he became addicted to suing the tobacco companies. He was bitter about the $2 million he had lost on the trial and wanted revenge. But he also wanted justice. If you live in Lexington, Mississippi, you have a worm's-eye view of the capitalist state whatever your politics. Barrett is a mixture of Southern populist, traditional Republican, and devout Methodist. He had seen who was smoking cigarettes and who was being harmed by them, mostly poor working people. He believed the tobacco companies should be forced to be more socially responsible. Beating them up in court was one way to make them do their public duty.

The strength of his commitment to tobacco litigation was as sturdy as his roots in Lexington. One summer's day in 1996, Barrett and I were driving out of town to visit Ella Horton. When the kudzu vines are at their peak in high summer, the landscape is stifling and you long for the open plain of the Delta, and the cotton fields. I asked Barrett why someone such as himself, who was relatively wealthy, despite his loss to American Tobacco, would stay in tiny Lexington. He replied that he had never had any plans to leave. As Faulkner had said of his treasured native state, "You don't love because; you love despite." But there was something else. Barrett said he had come to believe that he was doing God's work. He thanked the Lord that he had been given this opportunity to fight the wrongdoings of the tobacco companies, he was a crusader, just as the tobacco company lawyers had painted him in the Horton trial. He didn't want to put the tobacco companies out of business; he wanted to hurt them--as they had hurt Nathan Horton, and as they had hurt him.

The image he portrayed was oddly out of place with the picture of the unscrupulous courtroom brawler that most often comes to mind when thinking of personal-injury trial lawyers. A similar religious fervor could be found in two other Mississippi lawyers who would join Barrett in his campaign against Big Tobacco and eventually become the prime movers in bringing the tobacco industry chiefs to the negotiating table in the spring of 1997.

One was Mike Moore, Mississippi's attorney general, whose youthful good looks and instant charm belie the rough and tumble politics of his office. The other was Dick Scruggs, a courtly, bespectacled country lawyer with a ready smile, who had been a navy pilot, otherwise living most of his fifty years in the port town of Pascagoula, on Mississippi's Gulf coast. Scruggs and Moore had grown up in Pascagoula, but six years apart. Scruggs, whose parents were divorced and whose mother was a secretary at the Ingalls Shipbuilding Company, learned early the meaning of money; the shipyards were booming in the '60s making vessels for the navy, and the owners were very rich. As a teenager, Scruggs would spend many days hanging out at one of their grand antebellum houses on the beachfront, which had been converted into a club for families of shipyard employees. When he later made his own fortune through asbestos lawsuits, Scruggs would buy two of those houses. He had wanted to turn one into a reception hall for the town, but the neighbors opposed the idea. "Some of them are concerned the bubbas will be down there peeing in the flower beds," Scruggs would tell American Lawyer in his first big media interview in the spring of 1996.

Mike Moore grew up in a strong Catholic family in a comfortable middle-class neighborhood. One small setback he mentions in an otherwise easy childhood was that it took him longer than most to grow to his full height of five feet, eleven inches. He was only five feet, three inches when he graduated from high school, with the result that he was pushed around by his peers more than he would have liked. The suggestion is that this in part accounts for his congeniality and his reluctance to say no to people; and that it also left him with an uncontrollable ambition to succeed and an irrepressible desire to look after the "little guy." Certainly, he has been a great cheerleader for his small state. When he talked about "li'l ole Mississippa takin' on Big Tobacca," it was said with deep feeling--from a Southerner who was determined to make his mark on the Northern Establishment and, if possible, on the rest of the world.

In 1974, Scruggs and Moore met at the law school of Ole Miss. Moore was a keyboard player in a rock band and a Little League coach. Scruggs, six years older and straight off the flight deck, was more mature. He never had much time for nonacademic pursuits. He continued to fly in the navy reserve to help pay his tuition. Of Moore in those days, he says, "We were friends, but not close." After law school they went their separate ways, Scruggs to a law office in Jackson, the state capital; Moore home to Pascagoula. Still only twenty-seven, Moore became a district attorney, stiffing up the local community during his first year in office by pressing charges and winning corruption convictions against four of the five county supervisors. As he moved up to Jackson to seek wider political office, Scruggs returned to Pascagoula to set up his own business. They met infrequently.

By chance in the late seventies, Scruggs encountered Don Barrett, on opposite sides of the Lexington courthouse. Barrett was a plaintiff's lawyer seeking damages for a domestic electrical fire and Scruggs was representing the power company. Barrett won the case but they became friends and later, when Barrett took up Nathan Horton's smoking case, Scruggs encouraged him.

In 1984, Scruggs started handling asbestos cases. The Johns-Manville Corporation had already filed for bankruptcy, leaving 16,500 asbestos lawsuits pending and an estimated 130,000 claims yet to be litigated. For a decade, the plaintiffs' lawyers had been winning or settling virtually every asbestos case they filed. Pascagoula shipyard workers came knocking on Scruggs's door. They all had lung diseases of various types caused by asbestos. Scruggs had read up on pulmonary medicine and put up his own money, a few thousand dollars, for the men to have medical exams, an initial expense other local lawyers involved in asbestos cases had balked at. Scruggs started winning cases. The result: Scruggs got the most clients, about 4,000 of them in all.

With some deft footwork he also managed to try his cases more quickly than others. The asbestos companies had succeeded in transferring most of the local cases from state to federal court, where they would have to wait in a long line to be heard. But Scruggs seized on a Mississippi Supreme Court ruling on strict product liability that for the first time gave plaintiffs the chance to include local distributors in personal-injury claims. The big asbestos companies had headquarters elsewhere, but by naming a local distributor as a defendant, Scruggs was able to get his cases returned to the state court, a much quicker route to trial. Scruggs was lucky to have a local populist judge, Darwin Maples, in charge of his local court. Maples wanted to get the cases in and out of his court as fast as possible.

As it turned out, Scruggs was also a master at cutting deals. While his colleagues looked on and scoffed, Scruggs slipped through settlements for much lower awards--but clinched the deals before the companies declared bankruptcy. Scruggs also consolidated thousands of claims into a single trial--a type of class action that had been pursued before by two other trial lawyers prominent in asbestos litigation, Ron Motley of Charleston, South Carolina, and Walter Umphrey, of Beaumont, Texas (now both on Wendell Gauthier's class-action committee). In Pascagoula, Scruggs left his colleagues standing on the courthouse steps, pockets empty. His average client received between $50,000 and $60,000 and Scruggs took his 25 percent.

Moore, meanwhile, was running hard for attorney general. He was elected in 1987 with a class of yuppies who had taken over state government. Energetic, bright, and charming, Moore was soon being spoken of as a future governor of the state, something he did not discourage. He would win reelection in 1991 with 75 percent of the vote. Scruggs was a major contributor to his campaigns.

One of Moore's first tasks as attorney general was to add the state of Mississippi to the nationwide lawsuits against the asbestos companies to recover the cost of removing asbestos from public buildings. The attorney general's office had no staff to do the litigation, so Moore hired Scruggs to represent the state. In five years, Mississippi recovered $20 million and Scruggs received his 25 percent fee.

From his modest beginnings, Scruggs had already become a Southern gentlemen of considerable means. "I happened to be in the right place at the right time," he acknowledges modestly. By the '90s, Scruggs had two yachts, a holiday home in Key West, and his own Learjet. But to meet him you wouldn't know that his take-home pay is over a million dollars a year. Unlike some of his more colorful brethren in the plaintiffs' bar, Scruggs works out of cramped, spartan headquarters in a bleak shopping mall in the middle of Pascagoula. He drives a darkgreen, two-seater Mercedes convertible, but it's parked outside the back door because there's no room at the front. In place of the usual English barrister or hunting prints on his law office walls, there are pictures of sailing boats and of Scruggs piloting his navy jets. He is almost apologetic about his boats and jet plane, although he clearly enjoys both.

Scruggs had now become an elite member of the plaintiffs' bar. While many of its members promote themselves as private attorneys general righting civil wrongs, stepping in to help the common man through the court system when government either can't or won't be of assistance, actually they participate in a litigation lotto. How much they are motivated by money and how much by social conscience or even guilt is a question hard to answer. But in the spring of 1994, the fact is that as a group these self-made men and women had never been so well placed to conduct a crusade. In New Orleans, Gauthier would say of his class action, "I know the outside world thinks we're greedy hogs. As I see it, this is our chance to do some good for society and give something back." Scruggs felt it was time to "reinvest" his capital. "If we don't use a substantial part of that money to reinvest in our clients and reinvest in the people that we represent, then the criticisms of us are justified.... We had a war chest and it was our duty to reinvest it." To Scruggs, it was a straightforward equation; spend some of your money in a good cause or keep your money and be despised for how easily you made it. This did not mean a rush to "invest" without prospects of a return, but none of them, especially the trio that emerged in Mississippi--Scruggs, Barrett, and Moore--imagined how much would eventually be on the table.

Like the other liability lawyers, Scruggs had occasionally thought of suing the tobacco companies. He had discussed the possibility with Ron Motley after a collaboration on an asbestos settlement. "We were bored with asbestos," Motley recalled. But, like the others, Scruggs had been put off by Big Tobacco's unbeaten record--and by his own experience.

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