Taking On Tobacco : Even After a Wave of Legal Setbacks, Marc Edell Wasn’t About to Let Landmark Case Go Up in Smoke

Marc Z. Edell was subdued, almost brooding.

A federal court jury had just delivered the first verdict ever against a tobacco company in a smoker-death case, ordering Liggett Group Inc. to pay damages for the 1984 death of a New Jersey woman. And as lead trial lawyer for the plaintiff, the 37-year-old Edell had just been assured a place in legal history in a landmark case.

In legal terms, Edell’s team had climbed Mt. Everest, conquering an industry that had been flicking away damage suits for more than 30 years. But to Edell, the view from the top was not altogether satisfying.

“I’m happy and I’m not happy,” he told a crush of reporters. “I’m disappointed we didn’t get the whole thing.”

Although it found Liggett liable, the jury exonerated Philip Morris and Lorillard, whose brands Rose Cipollone also smoked before dying of lung cancer at age 58. Jurors also rejected the most damning claims of fraud and conspiracy against all three firms.

Other Side Claims Victory

Then too the law firms that had bankrolled the suit--those of Edell and co-counsel Alan Darnell--had taken a bath, investing at least $2 million in expenses and time for a $400,000 damage award. The cigarette makers were telling the world they’d won.

When asked by a reporter why he seemed so glum, Edell blurted an apology.

“It’s just my personality,” he said. “I think that if I work hard enough, that I could get it done.”

That compulsiveness, say co-workers and friends, explains a lot about how the Cipollone case came to be--and how it succeeded, where all others had failed, despite legal setbacks that robbed Edell of the theoretical underpinnings of his case.

Battling the well-financed, politically influential tobacco companies on behalf of a New Jersey widower was the kind of uphill battle Edell relishes. Anyone with less drive and street smarts might have given up.

“He’s extraordinarily demanding, but there’s nothing he asks you to do that he doesn’t do himself,” said Michele Brown, Edell’s paralegal, who admits it’s “not easy to work with the guy.”

“He engenders strong feelings, one way or the other,” she said. “You either hate him or you go to the ends of the Earth to stand by him all the way.”

Steven Parrish, a lawyer for Lorillard from Kansas City, said Edell “tried a very good lawsuit against us.”

“(Edell and) I have had some very strong disagreements over the last five years and some very heated exchanges . . . but we basically have left that at a professional level,” Parrish said. “I consider him to be my friend.”

And Cynthia Walters, a lawyer on the Cipollone team, said Edell is “aggressive, he’s shrewd, he’s very intelligent, and he’s energized. He has all the capabilities of a great trial lawyer all wrapped up into one package.”

Two days after the verdict, Edell had been on “Nightline,” “Good Morning America” and “Today” and had been lionized in newspapers coast to coast as the David who slew Goliath.

The sudden celebrity was “flattering, but I don’t take it too seriously,” said Edell, who had shed his conservative gray suit for fatigue-green slacks and a shirt without a tie.

“It’s because Marc was in the right place at the right time with the right stuff,” Edell said. “Tomorrow, no one will remember who I am.”

Still, Edell seemed a bit more impressed with himself.

The tobacco companies “spend $50 million, and they get legislation passed and take away all my legal theories, and we get a judgment against them for $400,000, and they still proclaim that it’s a victory?” he scoffed. “Give me a break!”

Rose Cipollone’s was a familiar story. She was 16, and awed by the glamour of cigarette-smoking movie idols when she began buying Chesterfields at the corner sweet shop in 1942. She hired Marc Edell in 1983, when she lost her right lung to cancer. The disease invaded her liver and brain and she died the next year, after making her husband, Antonio, vow to carry on the suit.

To Edell, Rose Cipollone was a victim of chemical dependence, a person who had a right to be told in the 1940s what she was getting into with cigarettes.

For Edell, his wife and three children, the case would involve considerable personal sacrifice, as he gave it his heart and mind and most of his waking hours. For nearly a year before the trial began Feb. 1, Edell worked seven days a week.

Still, he was not an anti-smoking activist, nor a crusader of any stripe. He thought tobacco litigation was warranted and “would be challenging.”

“And,” he added, “I thought I could make some money.”

Ironically, Edell had defended an asbestos producer, Lake Asbestos of Quebec, Ltd., in scores of lawsuits brought on behalf of dead or dying workers who had been exposed to the cancer-causing fibers. Those cases prepared him for the document-discovery battles that would prove pivotal in the Cipollone case.

In the Cipollone case and six other cigarette suits yet to reach trial, Edell and his Short Hills, N.J., law firm were joined by Alan Darnell and his firm in Woodbridge, N.J.

They made strange bedfellows. The 41-year-old Darnell was a lawyer for asbestos workers and had won a landmark 1982 victory over giant Johns-Manville before the New Jersey Supreme Court. The lawyers who defended Manville in that case were from Edell’s firm.

Early on, these connections aroused the suspicions of the cigarette companies, which suspected asbestos firms of bankrolling the Cipollone case. Since they alone were paying damages to lung cancer victims who smoked and worked with asbestos, the asbestos firms did have a vested interest in putting tobacco in the dock.

The Cipollone lawyers at first refused to say who was paying for the suit. It was “none of their damn business,” Edell said. Ultimately ordered by the court to divulge the source of their funding, the lawyers said that--to their regret--their law firms alone were footing the bills.

Edell grew up in West Orange, N.J., the son of a vitamin salesman who thought senior high at a military school would do his boy good.

“If I hate my children, I’ll send them there,” Edell recalls telling his father recently.

“I can tell you that, many times, I was beaten up for being nothing more than Jewish,” Edell said. But in the end, the military academy “made me self-sufficient. It did teach you to go the distance.”

Later Edell graduated from Boston University and New York Law School, before being admitted to the New Jersey Bar in 1975.

A trim, athletic man who has a black belt in karate and plays a mean game of racquetball, Edell seems to have applied that drive to all aspects of his life. On a vacation to Lake Champlain a couple of years ago, for instance, Edell sent his wife and kids by car and rode his bike to northern Vermont, covering 350 miles in less than three days.

From the first, Edell knew he would need the same sort of determination in the Cipollone case, where he faced staggering odds. There was the problem of public hostility toward all such suits, and the prospective jurors believing that those dumb enough to smoke for 40 years deserved what they got.

There was also the grueling war of attrition waged by armies of tobacco lawyers against anyone daring to take the cigarette companies to court. Of about 300 lawsuits filed against cigarette makers since the 1950s, fewer than 20 had actually gone to trial, with many an exhausted plaintiff throwing in the towel.

Just this spring--after several smoker death suits in California were dropped by plaintiffs--a lawyer for R. J. Reynolds described the industry’s aggressive tactics in a confidential memo leaked to The Times.

“To paraphrase General Patton,” the memo said, “the way we won these cases was not by spending all of Reynolds’ money, but by making that other son of a bitch spend all his.”

But although the industry appeared to spend $50 million or more in defending itself against Antonio Cipollone’s suit, it had never been up against a plaintiff so carefully prepared or well-financed.

“This was a different game,” Edell said. “They never played it as equal as $50 million against $2 million.”

Before this case, no plaintiff had gotten a good look at what the industry knew about the health dangers of tobacco and when it knew it. But after months of hearings, Edell and his team won access to thousands of confidential reports, letters and strategy memos never seen outside the offices of the cigarette firms, their consultants and industry organizations.

Scores of the most damaging documents were shown to jurors. For example, in 1946--two decades before health warnings appeared on cigarette packs--a Lorillard official said in a letter that some scientists had “claimed for many years” that smoking contributes to cancer. “Enough evidence has been presented to justify the possibility of such a presumption,” the letter said.

A 1961 memo by a Liggett scientific consultant said there were substances in cigarettes that are “a) cancer causing; b) cancer promoting; c) poisonous; d) stimulating, pleasurable, and flavorful.” And in a 1972 memo, a Tobacco Institute vice president told how the industry, over the last 20 years, had pursued a “brilliantly conceived and executed” strategy of “creating doubt about the health charge without actually denying it.”

Yet when the Cipollone case finally reached trial on Feb. 1, after 4 1/2 years of bruising pretrial battles, Edell appeared to have powerful evidence but a weak case. Savaged by adverse rulings, he had been stripped of some of his strongest claims.

“It’s like starting out a marathon with both legs and arms and all your running gear,” Edell said last week. “By the time we got into court, I was running on stumps.”

For example, the Cipollone case was brought under a New Jersey law holding manufacturers responsible for injuries from products whose risks greatly outweigh their social utility. But state lawmakers, lobbied by the tobacco industry, repealed the risk-utility standard in the summer of 1987.

Although the suit was already 4 years old, the change was deemed retroactive and the risk-utility claim was thrown out.

Even earlier, several claims were dismissed when a federal appeals court ruled that the law requiring a warning on cigarettes in 1966 protected the industry after that date. The decision reversed the trial judge, H. Lee Sarokin, who had ruled the warning label confered no immunity because “legal minimums were never intended to supplant moral maximums.”

But after the appeals court ruling, Sarokin said he had no choice but to dismiss claims relating to industry conduct after 1966.

Another setback came during the trial, when evidence was thrown out concerning Liggett’s work on an additive to neutralize cancer-causing compounds in cigarette smoke. When tobacco containing the additive was burned and the smoke tars painted on the skin of mice, cancers were reduced as much as 100%, according to documents and testimony by a former Liggett scientist.

According to testimony, the development was not marketed because Liggett lawyers feared it would increase legal liability for existing cigarettes. But Judge Sarokin ruled there was no evidence Cipollone would have smoked Liggett’s “safer” cigarette, or that it would have been available in time to save her. And so another claim was dismissed.

In the end, Liggett was found to have breached the warranty, expressed in its ads before 1966, that its cigarettes were safe.

In the early years that Cipollone smoked, Liggett and the others made lavish health claims for their brands. Ads for Liggett’s Chesterfield brand, which Cipollone smoked for 13 years, claimed: “Nose, Throat and Accessory Organs Not Adversely Affected by Smoking Chesterfields.”

In the mid-’50s, Cipollone switched to filtered L&M;, which Liggett said was “Just What the Doctor Ordered.” It was for breach of warranty that damages were assessed against Liggett. Warranty claims against Philip Morris and Lorillard had been dismissed because Cipollone didn’t smoke their brands until after 1966.

The jury exonerated all three companies of charges they fraudulently misrepresented the risks of smoking before 1966 and conspired to dupe the public.

Industry officials seized this silver lining, saying the verdict affirmed that there was no cover-up, that the industry behaved responsibly, that the documents were taken out of context.

Edell prefers to think the jury couldn’t connect fraudulent acts with Cipollone’s smoking and death. In a different court with a different plaintiff, the result, he says, may be different.

“They lucked out,” Edell said. “I truly believe that in their hearts . . . they were very happy only to have a $400,000 verdict against Liggett. . . . I mean, they were there for 4 1/2 months and they knew what the evidence was, and what a jury could do.”

For the cigarette makers, the documents will pose continuing problems in other tobacco lawsuits, of which nearly 100 are pending. The public has yet to see documents from tobacco defendants other than Liggett, Philip Morris and Lorillard--which will not come out until those cases go to trial.

Edell doesn’t think the cigarette companies have been mortally wounded. They “are too well ensconced in our society, in terms of the use of cigarettes, their political influence and the fact that the cases will not be won in large numbers for years to come,” he said.

Not that he minds giving them fits.

“If I have helped on the smoking and health issue . . . then I’m happy,” he said.

“I can’t make myself out to look like a knight in shining armor. All I want to be known as is a good lawyer. . . .

“That’s why I’m in the business.”