Pynex's defense of its good corporate name got off to a miserable start Wednesday morning, through no fault of its own. An analyst named Walter Barker, writing in Mogul, a popular weekly financial, laid two-to-one odds that the jury down in Biloxi would find against Pynex, and return a large verdict. Barker was no lightweight. Trained as a lawyer, he had developed a formidable reputation on Wall Street as the man to watch when litigation affected commerce. His specialty was monitoring trials and appeals and settlements, and predicting their outcomes before they were final. He was usually right, and had made a fortune with his research. He was widely read, and the fact that he was betting against Pynex shocked Wall Street. The stock opened at seventy-six, dropped to seventy-three, and by mid-morning was at seventy-one and a half.
The courtroom crowd was larger Wednesday. The Wall Street boys were back in force, each reading a copy of Mogul and all suddenly agreeing with Barker, though over breakfast an hour earlier the consensus had been that Pynex had weathered the plaintiff's witnesses and should close strongly. Now they read with worried faces and revised their reports to their offices. Barker had actually been in the courtroom last week. He'd sat alone on the back row. What had he seen that they'd missed?
The jurors filed in promptly at nine, with Lou Dell proudly holding the door as if she'd collected her brood after they'd scattered yesterday and was now delivering them back to where they belonged. Harkin welcomed them as if they'd been gone for a month, made some flat crack about fishing, then raced through his standard "Have you been molested?" questions. He promised the jurors a speedy end to the trial.
Jankle was called as a witness, and the defense began. Free of the effects of alcohol, Jankle was primed and sharp. He smiled easily and seemed to welcome the chance to defend his tobacco company. Cable waltzed him through the preliminaries without a hitch.
Seated on the second row was D. Y. Taunton, the black lawyer from the Wall Street firm who'd met with Lonnie in Charlotte. He listened to Jankle while cutting his eyes at Lonnie, and it didn't take long to connect. Lonnie glanced once, couldn't help it as he glanced again, and on the third look managed to nod and smile because it seemed like the proper thing to do. The message was clear-Taunton was an important person who'd traveled all the way down to Biloxi because this was an important day. The defense was now speaking, and it was critical for Lonnie to understand that he should listen and believe every word now being said from the witness stand. No problem with Lonnie.
Jankle's first defensive thrust was on the issue of choice. He conceded that a lot of people think cigarettes are addictive, but only because he and Cable realized he would sound foolish otherwise. But, then, maybe they're not addictive. No one really knows, and the folks in research are just as confused as anyone. One study leans this way, the next one leans another, but he'd never seen positive proof that smoking was addictive. Personally, he just did not believe it. Jankle had smoked for twenty years, but only because he enjoyed it. He smoked twenty cigarettes a day, by choice, and he'd chosen a lower-tar brand. No, he most certainly was not addicted. He could quit whenever he wanted. He smoked because he liked to. He played tennis four times a week and his annual physical revealed nothing to worry about.
Seated one row behind Taunton was Derrick Maples, making his first appearance at the trial. He'd left the motel just minutes after the bus, and had planned to spend the day looking for work. Now, he was dreaming of an easy payday. Angel saw him, but kept her eyes on Jankle. Derrick's sudden interest in the trial was baffling. He'd done nothing but complain since they'd been sequestered.
Jankle described the various brands his company made. He stepped down and stood before a colorful chart with each of the eight brands,each with its tar and nicotine levels labeled beside it. He explained why some cigarettes have filters, some don't, some have more tar and nicotine than others. It all boiled down to choice. He was proud of his product line.
A crucial point was made here, and Jankle conveyed it well. By offering such a wide selection of brands, Pynex allowed each consumer to decide how much tar and nicotine he or she wanted. Choice. Choice. Choice. Choose the level of tar and nicotine. Choose the number of cigarettes you smoke each day. Choose whether or not to inhale. Make the intelligent choice of what you do to your body with cigarettes.
Jankle pointed to a bright drawing of a red pack of Bristols, the brand with the second-highest level of tar and nicotine. He conceded that if Bristols were "abused" then the results could be damaging.
Cigarettes were responsible products, if used with restraint. Like many other products-alcohol, butter, sugar, and handguns, just to name a few-they could become dangerous if abused.
Seated across the aisle from Derrick was Hoppy, who had stopped by for a quick update on what was happening. Plus he wanted to see and smile at Millie, who was delighted to see him but also curious about his sudden obsession with the trial. Tonight the jurors were allowed personal visits, and Hoppy couldn't wait to spend three hours in Millie's room with sex the last thing on his mind.
When Judge Harkin stopped for lunch, Jankle was completing his thoughts about advertising. Sure his company spent tons of money, but not as much as beer companies or car companies or Coca-Cola. Advertising was crucial to survival in a fiercely competitive world, regardless of the product. Of course children saw his company's ads. How do you design a billboard ad so that it won't be seen by children? How do you keep kids from looking at the magazines their parents subscribe to? Impossible. Jankle readily admitted he'd seen the statistics showing eighty-five percent of the kids who smoke buy the three most heavily advertised brands. But so do adults! Again, you can't design an ad campaign that targets adults without affecting kids.
FITCH WATCHED ALL of Jankle's testimony from a seat near the back. To his right was Luther Vandemeer, CEO of Trellco, the largest tobacco company in the world. Vandemeer was the unofficial head of the Big Four, and the only one Fitch could tolerate. He, in return, had the perplexing gift of being able to tolerate Fitch.
They ate lunch at Mary Mahoney's, alone at a table in a corner. They were relieved by Jankle's success so far, but knew the worst was yet to come. Barker's column in Mogul had ruined their appetites.
"How much influence do you have with the jury?" Vandemeer asked, picking at his food.
Fitch wasn't about to answer truthfully. He wasn't expected to. His dirty deeds were kept from everyone except his own agents.
"The usual," Fitch said.
"Maybe the usual is not enough."
"What are you suggesting?"
Vandemeer didn't answer, but instead studied the legs of a young waitress taking an order at the next table.
"We're doing everything possible," Fitch said, with uncharacteristic warmth. But Vandemeer was scared, and rightly so. Fitch knew the pressure was enormous. A large plaintiff's verdict wouldn't bankrupt Pynex or Trellco, but the results would be messy and far-reaching. An in-house study predicted an immediate twenty percent loss in shareholder value for all four companies, and that was just for starters. In the same study, a worst-case scenario predicted one million lung cancer lawsuits filed during the five years after such a verdict, with the average lawsuit costing a million dollars in legal fees alone. The study didn't dare predict the cost of a million verdicts. The doomsday scenario called for the certification of a class-action suit, the class being any person who had ever smoked and felt injured because of it. Bankruptcy would be a possibility at that point. And it would be probable that serious efforts would be made in Congress to outlaw the production of cigarettes.
"Do you have enough money?" Vandemeer asked.
"I think so," Fitch said, asking himself for the hundredth time just how much his dear Marlee might have in mind.
"The Fund should be in good shape."
"It is."
Vandemeer chewed on a tiny piece of grilled chicken. "Why don't you just pick out nine jurors and give them a million bucks apiece?" he said, with a quiet laugh as if he were only joking.
"Believe me, I've thought about it. It's just too risky. People would go to jail."
"Just kidding."
"We have ways." '
Vandemeer stopped smiling. "We have to win, Rankin, you understand? We have to win. Spend whatever it takes."
A WEEK EARLIER, Judge Harkin, pursuant to another written request from Nicholas Easter, had changed the lunch routine a bit and declared that the two alternate jurors could eat with the twelve. Nicholas had argued that since all fourteen now lived together, watched movies together, ate breakfast and dinner together, then it was almost ludicrous to separate them at lunch. The two alternates were both men, Henry Vu and Shine Royce.
Henry Vu had been a South Vietnamese fighter pilot who ditched his plane in the China Sea the day after Saigon fell. He was picked up by an American rescue vessel and treated at a hospital in San Francisco. It took a year to smuggle his wife and kids through Laos and Cambodia and into Thailand, and finally to San Francisco, where the family lived for two years. They settled in Biloxi in 1978. Vu bought a shrimp boat and joined a growing number of Vietnamese fishermen who were squeezing out the natives. Last year his youngest daughter was the valedictorian of her senior class. She accepted a full scholarship to Harvard. Henry bought his fourth shrimp boat.
He made no effort to avoid jury service. He was as patriotic as anyone, even the Colonel.
Nicholas, of course, had befriended him immediately. He was determined that Henry Vu would sit with the chosen twelve, and be present when the deliberations began.
WITH A JURY blindsided by sequestration, the last thing Durwood Cable wanted was to prolong the case. He had pared his list of witnesses to five, and he had planned for their testimony to run no more than four days.
It was the worst time of the day for a direct examination-the first hour after lunch-when Jankle took his seat on the witness stand and resumed his testimony.
"What is your company doing to combat underage smoking?" Cable asked him, and Jankle rambled for an hour. A million here for this do-gooder cause, and a million there for that ad campaign. Eleven million last year alone.
At times, Jankle sounded as if he almost despised tobacco.
After a very long coffee break at three, Wendall Rohr was given his first crack at Jankle. He started with a vicious question, and matters went from bad to worse.
"Isn't it true, Mr. Jankle, that your company spends hundreds of millions trying to convince people to smoke, yet when they get sick from your cigarettes your company won't pay a dime to help them?"
"Is that a question?"
"Of course it is. Now answer it!"
"No. That's not true."
"Good. When was the last time Pynex paid a penny of one of your smoker's medical bills?"
Jankle shrugged and mumbled something.
"I'm sorry, Mr. Jankle. I didn't catch that. The question is, when was the last time-"
"I heard the question."
"Then answer it. Just give us one example where Pynex offered to help with the medical bills of someone who smoked your products."
"I can't recall one."
"So your company refuses to stand behind its products?"
"We certainly do not."
"Good. Give the jury just one example of Pynex standing behind its cigarettes."
"Our products are not defective."
"They don't cause sickness and death?" Rohr asked incredulously, arms flopping wildly at the air.
"No. They don't."
"Now lemme get this straight. You're telling this jury that your cigarettes do not cause sickness and death?"
"Only if they are abused."
Rohr laughed as he spat out the word "abused" in thorough disgust. "Are your cigarettes supposed to be lit with some type of lighter?"
"Of course."
"And is the smoke produced by the tobacco and the paper supposed to be sucked through the end opposite the end that is lit?"
"Yes."
"And is this smoke supposed to enter the mouth?"
"Yes."
"And is it supposed to be inhaled into the respiratory tract?"
"Depends on the choice of the smoker."
"Do you inhale, Mr. Jankle?"
"Yes."
"Are you familiar with studies showing ninety-eight percent of all cigarette smokers inhale?"
"Yes."
"So it's accurate to say that you know the smoke from your cigarettes will be inhaled?"
"I suppose so."
"Is it your opinion that people who inhale the smoke are actually abusing the product?"
"No."
"So tell us, please, Mr. Jankle, how does one abuse a cigarette?"
"By smoking too much."
"And how much is too much?"
"I guess it depends on each individual."
"I'm not talking to each individual smoker, Mr. Jankle. I'm talking to you, the CEO of Pynex, one of the largest cigarette producers in the world. And I'm asking you, in your opinion, how much is too much?"
"I'd say more than two packs a day."
"More than forty cigarettes a day?"
"Yes."
"I see. And what study do you base this on?"
"None. It's just my opinion."
"Below forty, and smoking is not unhealthy. Above forty, and the product is being abused. Is this your testimony?"
"It's my opinion." Jankle was starting to squirm and cast his eyes at Cable, who was angry and looking away. The abuse theory was a new one, a creation of Jankle's. He insisted on using it.
Rohr lowered his voice and studied his notes. He took his time for the setup because he didn't want to spoil the kill. "Would you describe for the jury the steps you've taken as CEO to warn the public that smoking more than forty cigarettes a day is dangerous?"
Jankle had a quick retort, but he thought the better of it. His mouth opened, then he hung in mid-thought for a long, painful pause. After the damage was done, he gathered himself and said, "I think you misunderstand me."
Rohr wasn't about to let him explain. "I'm sure I do. I don't believe I've ever seen a warning on any of your products to the effect that more than two packs a day is abusive and dangerous. Why not?"
"We're not required to."
"Required by whom?"
"The government."
"So if the government doesn't make you warn folks that your products can be abused, then you're certainly not going to do it voluntarily, are you?"
"We follow the law."
"Did the law require Pynex to spend four hundred million dollars last year in advertising?"
"No."
"But you did, didn't you?"
"Something like that."
"And if you wanted to warn smokers of potential dangers you could certainly do it, couldn't you?"
"I suppose."
Rohr switched quickly to butter and sugar, two products Jankle had mentioned as being potentially dangerous. Rohr took great delight in pointing out the differences between them and cigarettes, and made Jankle look silly.
He saved the best for last. During a short recess, the video monitors were once again rolled into place. When the jury returned, the lights were dimmed and there was Jankle on-screen, right hand raised while being asked to tell the truth and nothing but the truth. The occasion was a hearing before a congressional subcommittee. Standing next to Jankle were Vandemeer and the other two CEO's of the Big Four, all summoned against their will to give testimony to a bunch of politicians. They looked like four Mafia dons about to tell Congress there was no such thing as organized crime. The questioning was brutal.
The tape was heavily edited. One by one, they were asked point-blank if nicotine was addictive, and each emphatically said no. Jankle went last, and by the time he made his angry denial, the jury, just like the subcommittee, knew he was lying.