Michael Orey

September 7, 1999   

Thank you Michael for accepting our " rendez-vous ". May I ask you to introduce yourself ?

I currently work as an editor at the Wall Street Journal.

My interest in tobacco began with some articles I wrote on the subject while at the American Lawyer magazine.

Two of those articles took me to Mississippi -- one was a profile of Merrell Williams, the paralegal who copied thousands of pages of internal documents at Brown & Williamson.

Williams had fled to the Mississippi coast, and was essentially in hiding when I did my story on him.

Williams ended up turning his documents over to Richard Scruggs, a Pascagoula, Miss., asbestos lawyer who had set his sights on tobacco.

I found Scruggs to be a fascinating character, and that led to my second Miss. story. Pretty soon, a book idea emerged.

    

1. The title of your book is "Assuming the risk: The mavericks, the lawyers and the whistle blowers who beat big tobacco". Who are the mavericks?

"Mavericks" is kind of a catch-all term. Miss. Attorney General Mike Moore, for example, is of course a lawyer. But his critical role in my story is as a political maverick - a politician who was willing to take on the tobacco industry. And in 1994, there weren't so many who would do that.

2. The first half of the book is devoted to the Horton's case and you start with a dramatic description of his death at 50: "drowned in his own blood".
But at the end, if a few lawyers have made a fortune, what have the tobacco victims "won"?

Individuals have yet to collect a penny in damages from cigarette makers, and it's not clear to me that they should. That said, I think it may well make sense to find a way -- through legislation, not litigation -- to force tobacco companies to internalize the costs they impose on society. As for the lawyers getting rich, that's true. Richard Scruggs and his small Pascagoula, Miss., firm stand to collect nearly $1 billion over the next 25 years. Of course, when they first filed suit on behalf of Miss., lawyers had only lost money litigating against tobacco -- which is one reason I titled my book "Assuming The Risk." The lawyers took a huge gamble, forked over millions of their own funds to pursue these state suits, and the payoff has been enormous.

3. In fact, the tobacco victims only started to win cases only recently in California, Oregon and of course the Engle class action in Florida. Is this new wave of lawsuits going to change again the litigation's landscape and make it very different from the one you described?

I think the landscape of tobacco litigation is fundamentally different now than it was 5 years ago. That's due in part to the disclosures that have come out about industry knowledge and practices. And it's due to the industry's willingness to settle with states to the tune of about 240 billion over 25 years. The terms of the debate have changed and the stakes are much much higher. Still, the individual victories you mention could well be overturned on appeal (just as 2 plaintiff victories in Florida were). And it remains to be seen what will come of Engle.

4. How do you assess the situation of "big tobacco now"?
Do you agree with Scruggs when he says a year after the settlement, about Brown and Williamson: "I think that fundamentally they did n't get it, and I think they still don't think they get it". Does that mean litigation did not significantly change the way the tobacco companies operate? They raised the prices to pay for the settlement but otherwise it is still business as usual?

    

I think Brown & Williamson may be starting to get it. They have been taking a somewhat less hard-line approach, at least in their public statements, over the last year. As for changes in the way tobacco companies operate -- I think we might have seen some significant changes had some version of the proposed 1997 comprehensive settlement been enacted. But once that collapsed, I think it has been largely business as ususal.

5. In your epilogue you sound disillusioned with the whole story: "a perpetual struggle with increasing costs" and rather pessimistic.
Bankrupting the tobacco industry like the asbestos industry does not appeal to you as a fruitful solution and you are very pessimistic about Congress's ability to enact comprehensive legislation. So what?

    

I do think an opportunity to do something really meaningful was lost when Congress failed to act to implement some form of national tobacco accord.

This is a complex social, economic and public-health issue that should be resolved in the public-policy arena, not by piecemeal litigation in the courts. I think it will be interesting to see whether the right pressures will emerge in the future to push it back into the hands of legislators.

Thank you Michael for taking the time to be with us today.

"Assuming the risk: the mavericks, the lawyers and the whistle-blowers who beat Big Tobacco"
by Michael Orey, Little, Brown and Company 385p ($ 24.95)