The artful dodgers.

• Author: Mintz, Morton
• Position: Did tobacco executives tell the truth about smokeless tobacco?

THE ARTFUL DODGERS

The story of Sean Marsee is familiar to millions of Americans. They saw it on "60 Minutes,' and read about it in Reader's Digest and newspapers around the country. Marsee was the 12-year-old closet "snuff dipper' from Oklahoma. He was habituated or addicted to the Copenhagen brand, which is made from moist smokeless tobacco and which has very high levels of nicotine. His mother, a nurse, discovered what he was doing, but he told her that smokeless tobacco couldn't hurt his lungs as cigarettes would. It mattered very much to him that he not damage his lungs because he wanted to, and did, become a medalwinning high school track star. Besides, if snuff weren't safe, the cans would carry warnings, as do cigarette packs, and professional athletes wouldn't promote it.

In 1983, when Sean was 18, he was found to have cancer in the middle third of his tongue near the groove on the right side of his mouth where he had kept his quid of Copenhagen. He underwent three increasingly mutilating rounds of surgery, and in February 1984, when he was 19, he died.

Later when Sean's mother, Betty Marsee, was living in Ada, Oklahoma, she told her son's story to Dania Deschamps-Braly, a local attorney. The result was a David-and-Goliath product liability lawsuit that pitted Betty Marsee against United States Tobacco Company, the 476th-largest industrial corporation in America.

In previous smoking lawsuits, judges have sealed documents obtained in pretrial discovery that showed what cigarette executives knew about tobacco-related disease, marketing strategies, and other major issues, and when they knew it. The Marsee trial was different. Dania Deschamps-Braly and her husband and legal partner George Braly not only obtained and reviewed an estimated 800,000 pages of documents from U.S. Tobacco, which had also once manufactured cigarettes, but also exposed the papers--many of them devastating--to public scrutiny.

A jury of four women and two men tried the case for 22 days last May and June in the U.S. District Court in Oklahoma City. The Bralys argued that Copenhagen is far richer than any other consumer product in nitrosamines, extremely potent carcinogens that have caused cancer--including tongue cancer--in about 40 separate species of laboratory animals. Defense counsel Alston Jennings Sr., a famed trial attorney from Little Rock, Arkansas, countered that it hasn't been "scientifically established' that tobacco, whether smoked or held in the mouth, causes disease. Moreover, he pointed out, no abnormality at all was found in the tip of Sean's tongue, which he used to position the quid, nor in the cheek and gum tissue that were directly and almost constantly exposed to the quid. The plaintiff's experts, including world-renowned scientists, blamed Sean's cancer on his use of snuff; the defense experts, some of them equipped with minor-league credentials and suspect motives, tried to exonerate tobacco.

Goliath won. On June 20, the jury found for U.S. Tobacco, deciding that a preponderance of the evidence did not show that Sean's six-year, heavy use of Copenhagen had caused his tongue cancer. Having made that decision, the jury, as instructed, did not consider other issues, such as the conduct of the company and the credibility of some of its witnesses, particularly Louis F. Bantle, chairman and chief executive officer of U.S. Tobacco, and Dr. Richard A. Manning, vice president for research and development.

Moreover, in numerous pretrial and trial rulings, U.S. District Judge David L. Russell barred important plaintiff's evidence, and these rulings will be the foundation of an appeal. Had the jury considered such issues and evidence, it might have severely jolted U.S. Tobacco because, for the first time in a tobacco product-liability case, the jury was allowed to set punitive damages.

Did Bantle, Manning, or others testifying on behalf of U.S. Tobacco commit perjury by hiding behind a wall of alleged ignorance despite overwhelming evidence that the product they produce kills people? Does their testimony say something about our own cynicism, about our tolerance for disingenuousness and our willingness to accept it from top corporate officials hoping to guard the bottom line? The jury couldn't rule on these questions. You can.

Robinspeak

U.S. Tobacco manufactures Copenhagen and Skoal, the world's best-selling brands of snuff. In 1985, in this country alone, U.S. Tobacco sold 480.8 million cans of these and other brands of snuff--17.3 million more than in 1984 and 54.9 million more than in 1983. Sales were $480 million, with smokeless tobacco, cigars, and pipe tobacco accounting for 86 percent of the total. In four years profits had more than doubled to $93.5 million, or 19.5 percent of sales--the highest rate among the Fortune 500. For this financial performance, chairman and CEO Bantle received compensation of more than $1.1 million. He, his wife, and their children own about 172,000 shares of company stock worth about $7 million.

Such data provide a context for troubling questions. Suppose snuff causes mouth cancer, gum disease, and tooth loss. Suppose also that these sales increases and high profits are significantly attributable to marketing techniques that were intended to, and do, hook children and youths. Suppose, too, that a U.S. Tobacco official is realistic enough to know the suppositions to be truths. Finally, suppose he knows that admitting what he knows would probably ruin U.S. Tobacco, causing the loss of investment, of thousands of jobs, and of his executive compensation. Would you expect him, under oath, to tell the whole truth?

In Oklahoma City, issues of this very kind confronted Bantle, Manning, other U.S. Tobacco executives, and several well-paid scientific experts. All swore the answers they gave were the whole truth.

Louis Bantle swore that "I am not aware that anyone has said that snuff causes cancer.' Like a number of company officials, Bantle refused to attend the trial and, under court rules, he couldn't be compelled to do so...