The Cigarette Papers.

• Author: Sullum, Jacob

In August 1970 a leading tobacco defense attorney, David R. Hardy, wrote a confidential letter warning that indiscreet comments by industry scientists, including references to "biologically active" components of cigarette smoke and "the search for a safer cigarette," "constitute a real threat to the continued success in the defense of smoking and health litigation. Of course, we would make every effort to 'explain' such statements if we were confronted with them during a trial, but I seriously doubt that the average juror would follow or accept the subtle distinctions and explanations we would be forced to urge." Such remarks by employees, Hardy explained, would suggest "actual knowledge on the part of the defendant that smoking is generally dangerous to health, that certain ingredients are dangerous to health and should be removed, or that smoking causes a particular disease. This would not only be evidence that would substantially prove a case against the defendant company for compensatory damages, but could be considered as evidence of willfulness or recklessness sufficient to support a claim for punitive damages."

The letter was among the Brown & Williamson documents leaked to anti-smoking activist Stanton A. Glantz and New York Times reporter Philip J. Hilts in 1994. It nicely summarizes the quandary of the cigarette companies, which developed largely because of their own dishonesty and continues to this day. In the 1950s, responding to the first widely publicized studies finding a link between smoking and lung cancer, the industry adopted a skeptical posture that was initially reasonable but has long since become a joke. It created the Tobacco Industry Research Council, later renamed the Council for Tobacco Research, supposedly to fund studies examining "all phases of tobacco use and health." Although some CTR-funded researchers produced further evidence of tobacco's hazards, most worked in areas far afield from the CTR's ostensible focus, while certain "special projects" were deliberately selected to cast doubt on the connection between smoking and disease. The CTR helped maintain the pretense that more research was needed - always and forever. The industry's strategy, as Tobacco Institute Vice President Fred Panzer put it in a 1972 memo, was "creating doubt about the health charge without actually denying it." Company officials steadfastly maintained that the case against smoking was not conclusive, and it soon became clear that no amount of evidence would sway them from that position.

In adopting this strategy, the cigarette companies hoped to prevent a decline in sales, discourage government regulation, and avoid potentially ruinous product liability. As the evidence about the health hazards of smoking accumulated, and especially after the 1964 surgeon general's report, liability protection - avoiding the appearance of"actual knowledge" - eclipsed the other concerns. True, the cigarette companies continued to aim propaganda about "the smoking and health controversy" at the general public. The Cigarette Papers, a guide to the juiciest Brown & Williamson documents assembled by Glantz and four co-authors, describes plans in 1969 for a public relations campaign intended to "set aside in the minds of millions the false conviction that cigarette smoking causes lung cancer and other diseases." As late as 1985, R.J. Reynolds ran misleading ads suggesting that a large epidemiological study had not found evidence of a link between smoking and heart disease. But in a culture saturated with warnings about the hazards of smoking, from school curricula to the surgeon general's messages on every pack of cigarettes, few people were buying the industry's wait-and-see line.

It nevertheless remained true that conceding a causal link between smoking and disease would make it easier for tobacco plaintiffs to prevail in court. Furthermore, as Hardy noted in 1970, a sudden reversal of the industry's long-standing position would invite punitive damages based on charges of deliberate wrongdoing. The tobacco companies have always feared (and their opponents have always hoped) that one successful suit would lead to a flood of litigation, sweeping the industry away. Nowadays that fear seems more realistic than ever, given the hundreds of pending state lawsuits, secondhand smoke claims, class actions, and cases filed by individual smokers. In August, a Florida jury told Brown & Williamson to pay Grady Carter, a former smoker with lung cancer, $500,000 in damages, plus $250,000 to his wife. If upheld, this would be the first-ever award to a smoker for tobacco-related disease. In these circumstances - and despite the Liggett Group's settlement of several state lawsuits and the now-defunct Castano class action - the tobacco companies are more determined than ever not to yield an inch.

As these three books show, the industry's defense strategy has produced several paradoxes. Industry lawyers simultaneously argue that the hazards of smoking have never been proven (casting doubt on the link between cigarettes and the plaintiff's illness) and that everyone knows smoking is bad for you (showing that the plaintiff voluntarily assumed the risk). Cigarette manufacturers insisted they were not acknowledging the hazards of smoking even as they responded to health concerns by introducing brands with filters and lower tar yields. Until the late...