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Assuming the risk: the mavericks, the lawyers, and the whistle-blowers who beat big tobacco. Michael Orey. Boston: Little, Brown and Company, 1999. ISBN 0-316-66489-8. 371 pages, $24.95. Orey M. Assuming the risk: the mavericks, the lawyers and the whistle-blowers who beat big tobacco
Symposium—Tobacco regulations: the convergence of law, medicine & public health. William Mitchell Law Review, Patrick J Gallagher, ed. 1999;25:373–767. Saint Paul, Minnesota: William Mitchell Law Review. Single issues available from 875 Summit Avenue, Saint Paul, Minnesota 55105, USA. 394 pages, $8.50. Gallagher PJeditor. Symposium—Tobacco regulations: the convergence of law, medicine & public health
No great task is done in a moment, encapsulated in the actions of a few characters, or caught in but one small emotion. Those who have been engaged with the war against tobacco dependence, commonly called smoking, know this and will find many lessons about this struggle in Assuming the risk, and what I shall call The convergence essays. Reviewing these two books was a learning experience for me since I am not a lawyer. But you will not find me trying to teach the legal arguments from these books. What these books do provide for me is some insight into how lawyers in Mississippi and Minnesota established cases that moved the tobacco industry to settle with all US states for $246 billion.
Assuming the risk is a tell all book that centres on the personalities of the Mississippi legal drama against the tobacco industry. The first two portions of this book centre on Don Barrett, a lawyer with a mission against the tobacco industry, and Merrell Williams, a whistle blower whose copied Brown and Williamson documents played an important part in exposing tobacco industry lies. The final portion brings the diverse elements from the earlier stories together and to a conclusion.
Let me begin by saying that this is an enjoyable read. The development of the setting and background of the main characters draws the reader into the story. The personality development is detailed enough so that we can relate to the characters, and sometimes feel their emotion and understand their thinking. The best way to show this is to give you a glimpse of the portrayals.
For example, from Don Barrett, the born again Christian speaking briefly at the funeral of his client, Nathan Horton: “The American Tobacco Company may have thought its troubles were over when Nathan died. I have a message for them: Their troubles are just beginning, because Nathan's family have picked up that banner that says justice and they are marching with it, and Fred Clark (a fellow attorney) and I are proud to be marching with them. I say this to the American Tobacco Company: We're coming at you, we're not gonna stop, you can run but you can't hide. I ask you to pray for us continually in this fight. The tobacco company has power and wealth, but they don't have the power like this group praying. Please help us. Thank you.”
And about Merrell Williams, the moody actor and academic who decided to make his paralegal job of cataloguing Brown and Williamson's internal documents into a crusade against public deceit: “Plowing through B&W's files, Williams grew increasingly troubled about the way he felt the tobacco industry was manipulating and misleading the public . . . Certain things Williams discovered particularly stuck in his craw: evidence of marketing to kids, for example, and the use of product placement in movies. Nothing, though, shocked him more than a group of files documenting the extensive role played by tobacco industry lawyers over the years in controlling the research into smoking and health conducted by the industry and in selectively screening the results. Given the increasing concerns over product liability litigation, the lawyers' role at cigarette companies became central and pervasive. In William's view it became improper as well.”
As the story evolves, Barrett and Williams become part of a growing number of characters who are searching for an effective strategy to attack the tobacco industry (or seeking to defend against it). After numerous legal defeats, the public health costs of state health coverage was recognised as the basis for a group grievance lawsuit. Experience showed that the tobacco industry could effectively counter personal product liability claims through assumption of risk arguments. But the group grievance approach, first introduced in Mississippi, eventually brought the industry to the table to work out state settlements before an outright legal victory could be won against the industry.
While even the full title of the book gives away the eventual defeat of the industry in the end, the mystery in this story is how all the elements of this battle could come together. A disappointment in the third and final section of the book is that the denouement of this elaborate complexity is made incomplete with the author's assertion that the individual state suits should have seen closure with a legislative settlement through Congress. The author feels that there should have been some national policy action to accompany the settlement agreements with state governments. Orey states: “But from a broader standpoint of public policy, the states' efforts were far less successful . . . Smokers—and potential future smokers—would have been far better off with a policy that was part compromise than with no policy at all.”
This assertion is understandable from a Wall Street perspective. Let's get this resolved so business without litigation can go on. But from a tobacco control perspective, it is dead wrong. The politics of the US Congress have historically favoured the tobacco industry whereas the politics of the court system has come to recognise certain legal liabilities based on corporate responsibility that the tobacco industry must face.
This brings me to the second book, Tobacco regulation: convergence of law, medicine and public health. Here is the Minnesota case against the tobacco industry. This is more a reflection on events than a story. It is both longer and more useful for those seeking to know the legal motivation and basis of seeking health cost compensation from the tobacco industry. In nine essays, four articles, and one case note, this law review publication makes the legal history, goals, perspectives and likely long term results of the Minnesota case clear. Comparing Hubert H Humphrey III's remarks with Orey's opine for closure, we see: “I believe that we are better off with no federal tobacco legislation than bad federal legislation . . . Why do I think that? Remember the last time Congress acted? We ended up with a labelling act that pre-empted the states and gave the tobacco companies a strong contributory fault defense” (because the label warns tobacco is harmful, the smoker assumes the risk in part (my comment)).
Both the background essays from lawyers in the Minnesota case and other material drawn from the 1998 symposium that is included in the book are excellent. More importantly, the legal articles provide detailed explanations about the legal basis and use of document discovery, proof of reliance arguments, confidentiality agreements, and tobacco document depository public access.
While I would recommend both books, I would urge readers to recognise that Orey is presenting a legal thriller for public consumption. He speaks primarily about “maverick” lawyers and shady business interests rather than about public policy or tobacco control issues. Assuming the risk is a story that presents flawed individuals and incomplete resolution because it portrays a moving target of legal accountability and responsibility that is so incredible, it is bewildering. By comparison,The convergence essays show that those who strive for social justice are not confused misfits who stumble on a way to win a judgement against the tobacco industry. They are those for whom there is no settlement, only a long journey on the way to better public policy. This is an important lesson that puts law with medicine and public health, having public policy motivations, not simply feeding the individual pursuit of money, ambition, revenge, or religious vindication.
Finally, realising that the tobacco epidemic is an international problem, it is important to note that these books are both based in US law and therefore Americentric in their perspectives and conclusions. Although there is one mention of the importance of the US legal agreements for the larger international community by William Foege, Carter Centre and Emory University, this is the exception. Even so, I shall confess some hope in these books and conclude as Foege has done: “I do not know much about law, but I do realise there are problems with international law. It was recently stated that international law is to law as professional wrestling is to wrestling: no one over the age of nine mistakes it for the real thing. But, you could help to change that.”
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