Philippe Boucher's Rendez Vous: Dan Zegart
Author of Civil Warriors , the Legal Siege on the Tobacco Industry, published by Delacorte Press/Random House
Rendez-vous with Dan Zegart
By Philippe Boucher
Wednesday, July 19, 2000
PB : Thank you Dan for accepting our rendez-vous.
May I ask you to introduce yourself?
Dan Zegart : I was a daily newspaper reporter for ten years, but for ten years prior to that, I was a musician, playing in rock bands and eking out a living as a carpenter.
I was motivated to write the book by my own experience with cigarettes - - and a family tragedy.
As a reporter, I smoked. I smoked in the newsroom. I smoked in my car. And I smoked in the second-floor apartment I shared with an alcoholic electrician who not only smoked, but fell asleep with a cigarette in his hand and caught fire during a game show.
Finally, after 23 years of smoking, I succeeded in quitting, but by then I had developed an irregular heartbeat. That was the first time it dawned on me that the cigarette industry was radically different from the manufacturers of other consumer products. The second was when my mother's kid brother John, an uncle I was particularly close to, committed suicide because he could no longer stand gradually suffocating from cigarette-induced emphysema.
Q1. First question : There are many players portrayed in your book but two stand out: Ron Motley and Cliff Douglas. First Ron: what makes him so special for you and how is he different from -for instance- Dick Scruggs and the rest of the plaintiff's lawyers?
DZ : Ron is more flamboyant, more brilliant, and more vulnerable than the other lawyers. He had personal qualities - - and his own tragedy with his mother's emphysema - - that I could relate to. I liked his earthiness and his very in-your-face kind of bravery on the tobacco issue.
Ron was obviously the leader of the pack, as far as the attorneys general suits went. Of course, you had Mike Ciresi in Minnesota, but his focus was different. Ciresi collected documents, but Motley was comfortable working the public arena in a way Ciresi wasn't. Ron Motley was just hands-down the most interesting one of the bunch.
That doesn't mean I agreed with everything he and his firm did. But more on that later.
Q2. Cliff Douglas is not in the fight for big money and I guess that sets him apart. What do you see as driving him?
DZ : His lack of financial motivation is one of the interesting things about Cliff. He's also a person of quite exceptional courage. You see that when you meet him, in how he carries himself, and how he has faced his Tourette's Syndrome, which is something he won't even tell you about unless you press him. That's a daily, hourly, minute-to-minute contest between Cliff's will and the disease.
I'm always interested in who a person's heroes are, and the fact that Cliff was influenced by people like Raoul Wallenberg, Martin Luther King and even Gandhi gave me a whole different take on what Cliff was really about.
I realized you had someone here who wasn't just an anti-tobacco advocate, but was coming at it from a radically different perspective - - who looked at the tobacco issue as a true social issue, not only a health issue. Cliff was using classic social activist tools to fight the industry. That was why I entitled his chapter "Civil Disobedience." And it became clear that the health organizations - - like the American Cancer Society, and so on - - had been neither savvy nor aggressive in taking on the cigarette companies. Cliff just wouldn't stand for that.
Aside from Cliff's unassailable qualifications as a central figure for my story - - finding Deep Cough alone would have been enough, even without his role in getting the Justice Department probe going, assisting with legislation and litigation, and bringing out critical whistleblowers like Ian Uydess and Jerome Rivers - - he became critical for the narrative because he was a kind of yin to Ron Motley's yang. Ron is this kind of strutting peacock, and Cliff has this quiet, boyish kind of charm, a very different persona.
Q3. At one point, someone says to Victor de Noble about the plaintiff's lawyers: "it's all about money" (p.152). About the second settlement you write: "a deal that was in fact little more than cash lottery for the states" (p.329). Isn't that a very humbling and dispirited comment after 300+ pages filled with passion, excitement, legal bravado?
DZ : Only if you believe in a world populated by dragons and knights, which I don't. I knew in 1997, after watching the first failed round of global settlement talks, that both sides wanted to settle the Medicaid suits. The cases were designed, from the start, to generate cash for the states, by making tobacco pay for at least some of the harm it had caused. The question was how the money would be used, but that, unfortunately, wasn't finally under the control of either the plaintiff's lawyers or the attorneys general.
However, the way the AGs played "the endgame," as Dickie Scruggs called it, led to a Master Settlement Agreement that squandered some unique opportunities that might have been seized. More could have been achieved in barring different kinds of ads, certainly human figures, for instance. A national anti-youth smoking ad campaign could have been structured with fewer booby-traps so a truly effective advertising effort could now be mounted, instead of this ridiculous situation where the industry is exercising a kind of veto power over individual ads.
But I think it might have been necessary to let one of the cases actually go to trial to accomplish these broader goals - - like Minnesota did, though even they didn't wait for a verdict.
Unfortunately, no individual AG wanted to be the one to risk an adverse verdict. And the early trials - - Mississipp, Florida and Texas - - occurred in the context of the "global settlement" bills that the AGs and the industry were trying to get through Congress, which was another powerful incentive not to stake the future on the vagaries of a jury's decision.
In the legal world, we don't really have dragons and knights. Instead, just as the dragonslayer is about to stab the beast, he rears up and offers the knight a really big pie. That's not a very satisfying ending, but it's the way things tend to go in civil litigation. That's why I ended the book with Cliff Douglas, not Ron Motley. Because Cliff never stopped fighting.
Q4. Since I have been myself deeply involved in many tobacco related lawsuits I can empathize with your vivid description of these David vs Goliath fights. This story had to be told and I certainly encourage people to read the book because they'll enjoy it and learn a good deal. But as you quote Motley (p. 332) : "This ain't the end. It's just the end of the beginning". How do you assess the next phase, the next wave of litigation (Engle, the trials in San Francisco and in Oregon, the DOJ's effort, etc)? Do you this this next wave animated by very different warriors? How do Susan and Stanley Rosenblatt fit in the picture and how many attorneys of the first wave are still involved?
DZ : Obviously, Stanley and Susan Rosenblatt have proven to be very effective civil warriors. Even if their verdict is thrown out, they showed it can be done, and that is already encouraging others. I have met them, and sat in a little of the Broin case. They are two extraordinarily determined people, and fine lawyers. They had a lot of behind-the-scenes help, though, from various "cigarette war" veterans, including Ness, Motley, Loadholt, Richardson & Poole, Ron Motley's firm, and the legal team that won the Williams case out in Portland. And Cliff Douglas assisted extensively both unofficially and in the courtroom during the liability phase of the trial.
Two things happened right at the end of the research period of my book, which was just as Engle was going to trial, and just as the Master Settlement Agreement was being signed. A great many - - not all, but I would say most - - of the firms that joined the AG suits - - got out of tobacco litigation. They took their money, or the promise of money, and went home. As I noted in the book, that is unfortunate, because these are some of the biggest, the richest and the best qualified plaintiff's law firms in the world. Motley's firm continues to litigate tobacco suits quite energetically, but on a smaller scale.
But a good number of other firms are getting involved, as we've seen in Portland and San Francisco. Some larger firms with diverse practices are now picking up a tobacco suit or two as part of a diversified product liability portfolio. That is the most encouraging sign of all. The great victory will really be when these lawsuits are seen as little different from asbestos, breast implant or other mass tort actions - - which, we ought to bear in mind, are still frequently lost. A fifty-fifty loss rate, no matter what the stock analysts say, would be a death sentence for the industry, because there are more sick smokers out there than the victims of all other defective products combined.
Q5. You toiled for 6 years along plaintiff's lawyers, whistle blowers, advocates, tobacco industry lawyers: what about burn out? What about deciding to move on while the fight seems/is endless? Any chance to read a sequel, a civil warriors 2 or did you quit for good?
DZ : There will be no sequel to Civil Warriors, though I am still covering tobacco in the sense that I'm doing some limited reporting and writing. My next book will not be about tobacco - - or lawyers. Isn't one enough?
I couldn't quit, I had a contract!
I was sustained by the sense that I had the tools to do the best job and the best vantage point from which to view, in panoramic fashion, the whole battlefield. And I was nourished by my sense that what the industry was doing was wrong, and that this was a real war, with real victims, who had been robbed of their dignity by the incessant din of a propaganda machine that had been saying for so many years that if they were dead, it was their own damned fault.
PB: Thank you Dan for taking the time to be with us today.
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