Philippe Boucher's Rendez-vous with . . . Cliff Douglas

Rendez-vous with . . . Cliff Douglas

Independent consultant and attorney
Michigan, USA

By Philippe Boucher

Rendez-vous 101
Monday, May 28 , 2001

PB : Thank you Cliff for accepting our rendez-vous.
May I ask you to introduce yourself?

Cliff Douglas : My first official day in tobacco control was Leap Day 1988. That is the day I started work in Washington, DC, as assistant director of the national Coalition on Smoking OR Health, whose director was Matt Myers. I had decided sometime before then that I would leave the traditional practice of law and devote myself to public interest advocacy. Still in my 20's, it was a good time to reflect on where I had been and where I was headed. Among other factors, my decision to change careers stemmed from a life-defining, six-month backpacking journey around the world and from reading about the remarkable lives of Gandhi, King and Raoul Wallenberg.

When I learned that there was actually a job (for which I could even get paid a wage!) that involved fighting the tobacco industry, I thought I must be dreaming. But it turned out to be real, and I proceeded to spend almost four years at the coalition. Believe it or not, in those days I was the only lawyer working full-time in tobacco control in the United States, and likewise the only full-time person representing the poorly funded coalition (about $165 thousand a year, for the nation's leading tobacco control organization), which was made up of the American Cancer Society, the American Heart Association and the American Lung Association.

The move into tobacco control held extra meaning for me, for not only had I lost family members to tobacco-caused illness, but my father, an oral surgeon, had long been a tobacco control advocate, first while serving in the Illinois legislature - he introduced the state's first legislation to prohibit smoking in public places and raise tobacco excise taxes - and later as the founding chair of the Illinois Coalition Against Tobacco.

After leaving the coalition, which was later supplanted by the more muscular Campaign for Tobacco-Free Kids, I worked as an advocate and/or lobbyist for ACS, ALA and the Advocacy Institute, and then as special counsel on tobacco issues for Congressman Marty Meehan, whom I persuaded to become the Democratic co-chair of the Congressional Task Force on Tobacco and Health. After bringing forward the industry whistleblower known as "Deep Cough" and breaking the nicotine manipulation story in an ABC expose (on the "Day One" program) in 1994, which the book Civil Warriors generously calls "tobacco's worst television day ever," Philip Morris questioned me under oath in an acrimonious 16-hour deposition as part of the company's $10 billion libel suit.

That was one of the challenges that I faced as a consequence of helping expose the industry's deceit. There were threatening letters and apparent phone taps, and an ongoing feeling of paranoia that I experienced along with my companions at ABC, on Capitol Hill and at the FDA. For a period of about four years my wife wouldn't let me open packages that came in the mail without clear indications that they were safe to open. Some of this is chronicled in Civil Warriors .

Soon after the Philip Morris deposition, I became what I remain today - an independent consultant and attorney serving as a resource on tobacco issues for health advocates, government officials, the legal profession and the news media. I engage in legislative and media advocacy, legal consultation, public speaking, writing and guest teaching. I also continue to coordinate the participation of tobacco industry insiders in support of tobacco control.

As the current vice chair (chair-elect) of the Tobacco-Free Michigan Action Coalition, which I'm pleased to report has just won a significant SmokeLess States grant for the next three years, I've gotten increasingly involved in advocacy at the state and local levels.

In the tobacco litigation arena, I now serve as co-counsel, with Woody Wilner, on behalf of the former Winston cigarette model Alan Landers, whom I've helped become a valuable tobacco control advocate in recent years. (In spite of his lung cancer and heart surgeries, Alan continues to speak to school kids, testify and share his warmth and blunt truth-telling with members of the public.) I served in a similar capacity in the Engle class action in Florida - where I served as the plaintiffs' only outside counsel of record - and the Williams case in Oregon, both of which resulted in major verdicts against Big Tobacco.

Q1. You have been involved in tobacco litigation. Can you tell us about it from your personal experience?

What do you think has been achieved via litigation? Maybe you could comment about what I just read about the tide going now in the direction of the tobacco industry as far as individual victims lawsuits are concerned. Of course, that is what they want the public to believe but maybe it would be interesting to comment on that.

CD: The first two tobacco cases that I worked on were Attorney General Mike Moore's case in Mississippi and the national Castano class action. Mike's case obviously turned out well, while the Castano case, and the state-based "baby Castano" class actions that followed, haven't fared well. Both cases were filed soon after we broke the nicotine manipulation story and the FDA launched its tobacco investigation in early-1994. Another important result of the ABC expose and the announcement of the FDA probe, of course, was the opening of the landmark Waxman hearings in Congress.

The litigation expanded rapidly to include the attorney general cases in Minnesota, Texas and Florida, and eventually many others. That chain of events underscores the impact that media and policy advocacy can have in the legal arena. It also highlights the important overall synergy that was created. While David Kessler's new book plays it down, the litigation, in turn, played a critical role in fueling the FDA's efforts - by feeding the agency critical industry documents obtained through the legal discovery process that the FDA, which lacked subpoena power, didn't have the ability to get on its own. A similar synergy was created between the legal cases and our congressional allies, as well as with the media. In other words, there was a four-pronged synergy that was operating, in which I participated for several years - shuttling documents, whistleblowers and investigative leads between FDA investigators, the legal cases, our allies on Capitol Hill and key media. This was a critical contribution made by the litigation, which I think may be under-appreciated.

When legal cases have been successful, of course, as when Madelyn Chaber won her cases in California and the legal team that I worked with in Portland beat Philip Morris - not to mention the Engle case and others - justice has been served. These victories, as well as the simple fact that more and more cases are being filed against the industry both in the U.S. and in an increasing number of other countries, also serve another function: they mark tobacco companies as accused wrongdoers in the public mind. This is also what was accomplished by the U.S. Justice Department's four-year criminal investigation of the industry, which I helped Congressman Meehan persuade Janet Reno to initiate. The DOJ probe ultimately didn't pan out for various complex reasons, but the very fact that it was going on helped persuade wavering members of Congress to oppose granting the industry immunity as part of the McCain legislation.

Continuing to bring legal cases against the industry is an essential component of our ongoing efforts to delegitimize the industry in the mind of the public.

It's true that a number of cases recently have gone against individual plaintiffs. It was always true that the greatest leverage held by our side in the litigation arena was in the form of larger actions - the attorney general cases and class actions, among others. That type of leverage is one of the things that was diminished when the AG's agreed to the Master Settlement Agreement with the industry. Class actions are still around, of course, and as we saw from the Engle case, they can have tremendous effect when they manage to succeed. As for the recent bad run, I'm convinced it's only temporary. There are literally hundreds of cases still pending, with many more certain to be filed. The industry will be facing such litigation for a long time to come, and there is little doubt that many more will result in plaintiffs' verdicts. In addition, the 900-pound gorilla - the Justice Department's civil reimbursement lawsuit - remains standing, although everyone fears that George W. Bush and John Ashcroft will kill it with a pro-tobacco bullet to the heart.

Q2. What about the limits of litigation? Litigation seems a natural and necessary tool for implementation, enforcement, compensation of damages ... but what about legislation?

CD: Legislation obviously is the preferred way to fight the tobacco problem. But given the fact that Congress has long abdicated its responsibility to regulate the tobacco industry and protect consumers against tobacco addiction, litigation has stepped into the breach in recent years as the only viable option to hold the industry accountable at the national level.

Some critics complain about the tactics of trial lawyers and the buckets of money that some of the private lawyers in the attorney general litigation have made. I'm of mixed mind on this. The industry bought Congress, and Congress let the American people down. The industry is the main villain, but Congress is also at fault. Plaintiffs lawyers wouldn't have gotten into the game at the level they did but for the almost total failure of national public policy to control tobacco. Unlike most of our political leaders, at least some of the litigation has served to place the industry on the defensive and hold it accountable.

While the litigation has made the important contributions that I discussed earlier, the adoption of the MSA was wrong. When I was working with the attorneys representing the AG's during that litigation, I parted ways with them on this. The MSA is not entirely bad, but we've all seen that it has already led to the misuse and misallocation of billions of dollars by the states, and it has also taken tobacco largely off the front page. The actions taken by the governor and legislature of my state, Michigan, have been a national embarrassment, as they have thus far allocated nothing - zero - from the MSA to tobacco control. I've also been disturbed by the venal conduct of some of the more prominent lawyers on the plaintiffs' side who were most involved in negotiating the MSA with the industry. (It goes without saying what I think of the work done by the industry's lawyers, who ought to simply put a red light out in front of their offices.)

Q3. What is your assessment of the Master Settlement Agreement? Besides the fact that most state legislatures are not devoting in a significant way the settlement monies to tobacco control, what do you think are the lessons to be learned? What's next?

CD: I addressed some of this already. I think perhaps the greatest lesson of the MSA experience is that we need ultimately to win at the legislative level, one of the first steps toward which will be enactment of effective campaign finance reform, which I'm pleased Marty Meehan has been leading the way on in the House of Representatives. In the absence of effective regulatory authority being granted to the FDA, in the absence of significantly higher taxes on all tobacco products, and in the absence of more sweeping smoke-free policies (mostly at the local level), we'll continue to fight a very uphill battle. And none of these major steps are likely to be attained until the system for financing political campaigns is made much cleaner.

Q4. A number of settlement lawyers got very rich. How do you feel about it? About them? Are any of those still involved in tobacco control or did they pursue other concerns or enjoy retirement?

CD: . I also commented on this previously. I haven't closely tracked the career moves of the settlement lawyers. Obviously many of them simply moved on to other types of litigation after they hit the jackpot. Some lawyers were and are truly dedicated to the cause. However, the ones who have proved themselves most committed were not involved in the attorney general cases and the eventual settlements. Some of these legal-eagle heroes and heroines include Madelyn Chaber, Woody Wilner and the Portland, OR team (Jim Coon, Bill Gaylord, Chuck Tauman and Ray Thomas). Obviously Dick Daynard, who has assisted plaintiffs' attorneys in numerous cases, has stuck with this through thick and thin since sometime before the start of the last millennium, and we owe him our gratitude.

Q5. What is your assessment of the main voluntary organizations? It seems certain that local/state chapters can be very active and aggressive, others much less so. You have mainly operated on your own; was that a deliberate choice from your part or an ostracism from institutions toward someone perceived as too independent?

CD: In recent years the American Cancer Society has broken new ground by spearheading national efforts to raise tobacco taxes and turning increasing attention to international tobacco control issues. The American Lung Association has played a key role in opposing industry immunity during consideration of the McCain bill. The American Heart Association has helped meld the interests of tobacco farmers with those of the tobacco control community.

Those are a few examples of the ways in which the national voluntaries have come a long way since their leaders in Washington sought to bar me from participating in a national tobacco control conference after I criticized the Coalition on Smoking OR Health for inaction and incompetence (bless Mike Pertschuk for successfully going to war for me on that one) and the Lung Association attempted to muzzle me from publicly criticizing members of Congress who were in the industry's pocket (I quit their employ). Obviously there is room for improvement, but things are better than they once were. In Washington the Campaign for Tobacco-Free Kids is now the leading light, so the voluntaries don't appear to be as important as they once were to the national tobacco control effort, although a couple of them support the CTFK.

As many of us know, the state and local voluntaries across the country vary widely in their level of commitment and their effectiveness in fighting tobacco use and the tobacco industry. (Currently I'm pleased to serve as a volunteer for the American Lung Association of Michigan, which plays a key role in tobacco control advocacy in my state.) One thing I learned early on, when the Coalition was the only national game in town, is that the voluntaries are not advocacy organizations per se. It's important to understand this. They have broader interests, they are charitable organizations who constantly face fundraising pressures, and many of them - though there are clear exceptions -are not culturally oriented toward activism. This is one of the things that created friction during the first few years of my career, as Dan Zegart describes in Civil Warriors .

I hasten to add that the Coalition wasn't entirely a lost cause. For instance, with the help of flight attendants' unions and groups like Americans for Nonsmokers' Rights, the Coalition played a key role in passage of the national airline smoking ban - no small feat. Beyond that, some "guerilla warfare" outside of the established structure was necessary in order to make progress. For example, I nurtured the frightened Deep Cough and privately engineered the nicotine manipulation story with ABC News after I was firmly instructed by the head of the Coalition's steering committee that the Coalition absolutely would not focus on nicotine addiction as a key advocacy strategy. Later, when my work helped fuel David Kessler's announcement that the FDA would consider regulating tobacco products as nicotine delivery devices, the Coalition, which I had since left, jumped on board. The Cancer Society, whom I served as lead lobbyist at that time on the national tobacco tax campaign, placed me on probation for operating independently, even though I was a consultant and not an employee.

Naturally I was pleased that the Coalition came to support FDA regulation by focusing on the industry's manipulation of nicotine, but the chain of events also demonstrated that sometimes you have to pull the established powers along by engaging in independent activism. You can really make a difference, but you might also have to pay a price. C'est la vie.

Q6. Is there anything else you would like to add?

CD: I'd like to share three brief quotes that have been meaningful to me. One comes from John Stuart Mill: "One person with a belief is a social power equal to ninety-nine who have only interests." I think those 17 words speak volumes about the road that each of us in tobacco control have chosen to take. The second is one that I once saw on a greeting card and have long used to rally audiences: "If you think you're too small to make a difference, then you have never been in bed with a mosquito." Speaks for itself, doesn't it? And finally, I leave you with the following, which I once heard from our wonderfully outspoken colleague Gar Mahood: "People who say it cannot be done should not interrupt those who are doing it." Words to live for.

Thanks for this interview, Philippe.

PB: Thank you Cliff for taking the time to be with us today.

Rendez-vous is supported by a contract from the Robert Wood Johnson Foundation
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