BLOWING THE WHISTLE ON BIG TOBACCO
Wigand, Williams lifted secrecy's veil
SubHead: Their revelations changed the history of tobacco industry
Byline: HUNT HELM, The Courier-Journal
Published May 25, 1997
(c) 1997 The Courier-Journal
After he did it, they set him up in a Gulf Coast town, with a house, two cars, a 30-foot sailboat and $3,000 a month to do nothing. Merrell Williams is a "special consultant" who is no longer consulted, a kept man of the anti-tobacco lawyers, who spends more time surfing www.tobacco.org than sailing his '78 Morgan. He is scared and in therapy. He feels isolated and finished. "My role is over," he says, and each dawn brings the promise of "no particular assignment."
Jeffrey Wigand's life also breaks into two distinct epochs: Before Speaking Out on Tobacco and After Speaking Out on Tobacco. In 1993, at age 52, a career change cut his annual income from a high of about $400,000 as vice president for research and development at Brown & Williamson Tobacco Corp. to $30,400 as a science teacher at duPont Manual High School in Louisville. His marriage was dissolved in March, and his former wife got sole custody of his children, after he was accused of domestic violence, which he denied, according to records in Jefferson Family Court. He has a new life and a new gray beard, but he is still afraid to answer even the most innocuous questions without consulting his lawyer, who tells him not to.
In Louisville in 1994 and 1995 these two men blew the whistle on Big Tobacco. Obviously, it changed their lives forever. But just as certainly, it has transformed the history of tobacco in America ~ the public opinion, the political balance of power, the legal landscape.
As a direct result of what they did, the federal Food and Drug Administration got the information it needed to proceed to regulate tobacco ~ to make rules that will govern access to cigarettes. Attorneys general in Mississippi and more than half the states got crucial information needed to sue the tobacco industry for the cost of smoking-related illnesses, litigation so massive the tobacco companies are now trying to negotiate a global settlement. A Florida jury got the information it needed to hold a tobacco company responsible, for the first time ever, for an individual's lung cancer ~ encouraging countless plaintiffs in similar circumstances.
The avalanche Williams and Wigand triggered is still roaring down the mountain. If the day comes when you have to go to a pharmacy to buy a pack of cigarettes; if the day comes when cigarette ads don't target young people, and taxes push the price of a pack to $7 or more, so your child buys a CD instead of a first smoke; if the day comes when anybody made ill by cigarettes can claim a limited share of a multibillion-dollar fund set aside by the tobacco industry; if federal grand jury investigations under way since 1994 lead to perjury or fraud indictments against top tobacco executives; if cigarettes stop killing more than 418,000 U.S. citizens every year, and tobacco companies stop recruiting more than a million new smokers each year ~ if those days come, then you can draw a straight line back to Merrell Williams' documents and Jeffrey Wigand's testimony.
"These people stuck their necks out," said Scott Ballin, a former lobbyist for the American Heart Association. "We've been dealing with this problem in this country for decades. What they did served as a catalyst, and now in the past couple of years things have moved very rapidly."
Richard Daynard, a Northeastern University law professor who heads The Tobacco Products Liability Project, said the information provided by Williams and Wigand, especially the B&W documents, contributed to a critical mass of documentation against the tobacco industry.
"What all of this did," Daynard said, "was to provide tremendous grist for the process of successive revelations that we've had. I think the public began to experience this industry as an outlaw industry."
The industry "has had to spend a lot of time and resources rebutting these allegations," said Jim Milliman, a lawyer for Brown & Williamson, which says in lawsuits that Williams stole documents from the company and that Wigand violated confidentiality agreements. "With the documents Williams stole they have taken selected excerpts from millions of documents, leaked them to the media selectively to create a certain impression with the public. Wigand had four confidentiality agreements, violated them, and then went on television and lied. . . .
"I feel very strongly," Milliman said, "that these two guys are not good people. Neither one of them is believable."
But whether they are regarded as heroes or thieves, as white knights or pirates sailing under a black flag, the accusations that Williams stole the documents and Wigand violated confidentiality agreements might actually have made their stories more powerful. Richard Kluger, Pulitzer Prizewinning author of "Ashes to Ashes," an 800-page book about Philip Morris and the history of the tobacco industry, said in a recent interview that the shades of moral ambiguity in their whistleblowing (perhaps even more than any science they revealed) made for higher-impact stories that newspapers would cover, and that people would pay attention to.
MERRELL WILLIAMS was a paralegal for the Louisville law firm of Wyatt Tarrant & Combs from January 1989 to February 1992. His assignment: To work in the document room at B&W, coding internal records and research findings that might be helpful to people suing the tobacco industry should the records come out in court. (Some of the codes were DA for addiction, DDA for lung cancer, DDB for throat cancer, DDC for other cancer, DDE for permanent genetic damage.)
"The whole point of the exercise," Williams says, "was to cover it up."
His response, in the end, was to select and secretly copy approximately 4,000 pages of internal B&W documents, and eventually get them to the people who could use them.
The documents gave the public an important look inside the tobacco industry, revealing that:
- B&W's general counsel told the company in 1963 that it is in the business of selling an addictive drug, and its research scientists have reported for years that the product can pose serious health risks for users.
- Scientists conducted a program breeding high-nicotine plants, and B&W used that tobacco in several brands. The company studied the relationship between "nicotine dose" and "smoker satisfaction." The company said this was all about flavor, but David Kessler, who was then the FDA commissioner, testified before Congress that the tobacco industry manipulated nicotine levels to keep smokers addicted.
- While denying publicly that cigarettes were harmful, B&W worked privately to develop a safe cigarette. When it became apparent that it was not going to achieve a safe cigarette, it intensified efforts to counter the evidence that cigarettes are dangerous. (In the 1990s, a period of time not covered in the documents, B&W did more research on a "smokeless cigarette" and got a patent in 1994.)
- B&W identified secondhand smoke as a health issue almost a decade before the government or independent scientists did, but it didn't share the information publicly.
- B&W denied marketing cigarettes to young people ~ yet it viewed educational programs to prevent young nonsmokers from taking up the practice as a threat to the industry; it viewed legislation to curb smoking among children as a negative development for the industry; it took notice that higher cigarette taxes might price cigarettes out of the reach of young people; it bought onscreen advertisements in movie theaters, and paid to have its brands scripted into movies.
- B&W set up special procedures for company lawyers to review scientific research documents so the company could claim attorney-client privilege and withhold the information when plaintiffs tried to seek it.
For decades, the documents show, tobacco put its business interests ahead of public health, and, according to U.S. Rep. Henry Waxman and others, used a variety of techniques to deceive the public and the government about what it knew.
THE YEAR AFTER the explosive documents were released to the public, Jeffrey Wigand gave them currency, and a human face. Wigand was vice president for research and development at Brown & Williamson from January 1989 to March 1993. He was fired, B&W said in court documents later, for telling half-truths and for an abusive style with coworkers. Wigand has testified that he was hired to work on a safer cigarette, but that the company lost interest in the project and he began having ethical concerns.
By 1995 Wigand was ready to testify ~ to the federal government, for the Mississippi attorney general and, finally, to the public in an interview for CBS' "60 Minutes." Mike Wallace interviewed Wigand in the summer of 1995, but the broadcast was delayed for months because CBS lawyers were afraid the network could be sued because Wigand was under confidentiality agreements he'd signed with B&W. The network's cautious approach became a news story in itself, and CBS did not air the interview until February 1996, long after Wigand's accusations had been widely reported.
"Wigand did basically three things," said Stanton A. Glantz, a professor at the University of California at San Francisco and a noted anti-smoking activist who published a book analyzing the B&W documents. "He brought what was in the documents into the present; the documents ended in the mid-1980s, and he showed that it was all still going on. The second thing is, he put a human face on it. The stuff we did (based on the documents alone) is kind of dry reading. The third thing, the whole fracas with CBS backing down and all that, really put the whole thing out there as a hard-news story that couldn't be suppressed by the cigarette companies."
And, Daynard added, Wigand's example encouraged other whistleblowers to come forward.
ALL THIS INFORMATION became public with exquisite timing, in light of contemporaneous legal and political developments. The B&W documents ~ which went from Williams to Mississippi lawyer Richard Scruggs to Waxman and to the news media ~ were especially timely.
For one thing, leaders of the seven largest U.S. tobacco companies had just testified under oath at Waxman's congressional hearings that they did not believe nicotine is addictive or dangerous, and that their companies did not manipulate its levels.
Given the discrepancy between what the executives swore to, and what the documents said, Waxman called for more hearings. The Justice Department began investigating the industry, including whether tobacco executives lied to Congress. That investigation continues.
Public opinion ~ not so much about tobacco as about the industry ~ changed. Kluger said the B&W documents "unmasked any pretense" that the tobacco company executives really believed what they were telling the public. This, Kluger said, left the companies "open to a serious charge of conspiracy and intentional fraud."
The timing was just right, too, for the FDA, which in 1994 was close to deciding whether it could regulate tobacco by declaring nicotine a drug.
Williams' documents were analyzed and, in a way, legitimized ~ in an issue of the Journal of the American Medical Association, and then in "The Cigarette Papers" ~ by Glantz and a team of researchers. Although B&W officials disputed the JAMA articles, they are widely credited with influencing President Clinton to allow the FDA to regulate nicotine.
"The FDA needed information about what the companies knew, and what they did, concerning nicotine," said Kessler, the former FDA commissioner. "The definition of a drug is an article intended to affect the structure and function of the body. You can go to a library and find out that nicotine does that. The question was, did the companies intend that." The B&W documents, Kessler said, answered that question in the affirmative, and so thoroughly that there would be no turning back.
Clinton announced the FDA's proposed rules in August 1995, targeted mainly at keeping teen-agers from smoking, and approved them a year later. The tobacco companies are challenging them, but last month a federal judge in North Carolina ruled that the FDA can impose labeling requirements on tobacco, and can restrict access to tobacco products.
The B&W documents also arrived with fortuitous timing in Mississippi for Scruggs and Attorney General Michael Moore, who were gathering evidence for their lawsuit against tobacco companies to recover Medicaid costs for treating smoking-related illnesses. Mississippi filed that suit in May 1994, and today 28 other states have filed similar suits.
Tobacco lawyers, fighting now on many fronts, initially dismissed Moore's suit as a gimmick and a contorted abuse of tort law. But now they are negotiating in New York with the attorneys general and with lawyers for smokers suing cigarette makers, in an effort to settle these cases all at once. Issues include what limit to set on the amount that smokers can collect from tobacco companies in a given year in the future, and how much money to set aside in a fund for that purpose; whether a settlement will give equal treatment to smokers who took up the habit after 1969, when warning labels appeared; how much control the FDA will have over nicotine levels; and whether all the companies involved can afford the settlement costs.
Lawyers involved in the negotiations have said that the deal is 80 percent done, and Senate Majority Leader Trent Lott said last week that Congress is likely to pass a deal widely endorsed by all sides.
Meanwhile, on Tuesday, Brown & Williamson filed a motion in the Chancery Court of Jackson County, Miss., to exclude the allegedly stolen documents
>from the first of the cases filed by the attorneys general against the
tobacco industry, even though the documents are readily available throughout the nation. The motion says in part that, "after stealing the documents, Williams approached Brown & Williamson seeking payment in exchange for a promise not to make the documents public ~ an offer that Brown & Williamson rejected." It says that the plaintiff knows the documents were stolen ~ and it asserts "there is evidence indicating that . . . Richard Scruggs engaged in illegal and unethical activities" in obtaining them. Scruggs could not be reached for comment.
ALL OF THIS leads back to Merrell Williams, 56, a former drama teacher with a doctorate, a marginal character who took on a major role in the battles against big tobacco; and to Jeffrey Wigand, who was fired late in life and fought back.
Wigand, 55, whose doctorate is in biochemistry, won't talk about his motives, or anything else for now, but he has testified in depositions that he and family members were anonymously threatened and pressured to keep quiet, and that he finally went to the FBI for that reason.
Williams said, "I've been asked what motivated me so many times I just want to curl up and hide. I've made my contribution, and whatever that is, it's done. What motivated me was that someone had better do something or nobody will know. I don't need anybody to tell me I'm a bad guy."
People tell him that anyway, of course, and tell Wigand the same thing.
Wyatt Tarrant & Combs, the law firm Williams was working for as a paralegal when he took the documents, sued him in September 1993 claiming theft, fraud, conversion, breach of fiduciary and common-law duties and breach of contract. The case is pending before Jefferson Circuit Judge Thomas Wine.
Brown and Williamson sued Wigand in November 1995, claiming theft, fraud, breach of contract, breach of fiduciary and common-law duties and violations of the Kentucky Uniform Trade Secrets Act. That case is pending before Jefferson Circuit Judge Stephen Mershon.
Milliman, the lawyer for B&W, echoing allegations the company has made in lawsuits, said, "I think you can sum up Williams' motives by the fact that he first tried to use the documents to extort millions of dollars from B&W. Now, he has received a house, boat, cars, $3,000 a month as a consultant, in exchange for those documents. He stole them and sold them to the plaintiffs' lawyers.
"The second individual, Jeffrey Wigand, had four confidentiality and non-disclosure agreements, violated them, and then went on television and lied."
Daynard said any confidences they broke are insignificant compared with the evidence they made public, which "was obviously of the most extraordinarily callous disregard for the fact that profit maximization might cost millions of lives.
"Courts are beginning to take that view as well," Daynard said, "except, of course, in the state of Kentucky. This is a state where you can be enjoined (as Williams was) from speaking to your own lawyer because you've taken on a tobacco company. Kentucky is not a state where the normal rules are going to apply, and I think that makes both of these guys especially gutsy."
Said Glantz: "On the moral scale of things, it's a no-brainer. There's no comparison between coming forward and telling the truth, and sitting quietly and allowing the lies to continue. Those guys are total heroes. They have already saved lives."
And Kessler, noting that Wigand cooperated with federal officials, said, "There's nothing improper about that. That is the moral high ground. No confidentiality agreement should prohibit people from cooperating with federal officials in the middle of an investigation."
Williams seems to be tiring of the whole argument.
"It's always either 'HERO' or 'THIEF' in big letters," he said. "It's not either of those. The B&W documents have raised the consciousness of people. A lot of people have been involved in making what I did a credible act. A reasonable and powerful thing. Kessler, Scruggs, Glantz and (Louisville lawyer) Fox DeMoisey, who took this up before anyone else.
"This is a compilation," Williams said, "a thing that had to happen at some point.
"What caused the avalanche? A little rock on top? A rabbit moving around up there? It doesn't matter now, because what you have is the avalanche." (end)
Ric Manning - Internet Project Manager - firstname.lastname@example.org The Courier-Journal - Louisville KY - www.courier-journal.com
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