100 



lalignancy. Desplie ihis. his lab was never funded by ihe 

 Council again. 



Dr. Homberger would come lo regrei his concession. And 

 the Council would find a use for ii — on ihe same occasion 

 on which ii eveniually would use research from another lab. 

 Microbiological Associates of Bethesda. Md. 



WHAT KIND OF CANCER? 



The Council contracted with thai lab lo do the world's lar- 

 gest inhalation study, involving more than 10,000 mice. To 

 do it, the Council spent hundreds of thousands of dollars in 

 a quest for the perfect smoking machine, one that prevented 

 mice from either holding their breath or overdosing on car- 

 bon monoxide. The lab initially had considered freedom, says 

 Carol Henry, who was its director of inhalation toxicology. 

 But after nine years of work and $12 million, the team was 

 told in 1982 that it could no longer meet with Council staffers 

 unless a lawver was present. 



"We had never done science through lawyers before, and 

 we told them it was unacceptable." says Dr. Henry. She says 

 a Jacob .Medinger lawyer told her. "That's the way it is." 



The scientists knuckled under. If the Council had canceled 

 before all phases of the first experiment were done, 40 staffers 

 might lose their jobs and nine years' worth of data would never 

 come to light. 



In Ihe first experiment, in which mice inhaled the equiva- 

 lent of five cigarettes a dav. five da>s a week, for 1 10 weeks, 

 19 oui of 9''S mice got cancer — versus seven out of 651 con- 

 trols However, the tumors weren't squamous-cell carcinomas, 

 the kind usually seen in human lung cancer. And there was 

 a 10''"o possibility the results were due to chance, whereas scien- 

 tists prefer no more than 5<''o Even so. Dr. Henry says the 

 study buili a "very strong case" thai cigarettes can induce 

 cancers in animals. This was to be the first of several ex- 

 periments. 



But lawyers from Jacob Medinger told Microbiological the 

 project would go no further. "When a contract is canceled 

 giver these kinds of results." Dr. Henrv says, "reasonable 

 scientists might conclude the liability issue must have suddenly 

 become apparent to this group." In fact, savs Dr. Kreisher, 

 Ihe Council's former associate scientific director. Council law- 

 yers "worried like hell" about it. 



Microbiological and the Council parted ways, but the 

 tobacco industry goi plenty of mileage oui of the Microbio- 

 logical mice In 1984. ihe Council issued a news release not- 

 ing the absence of squamous-cell lung cancer in the lab's study. 

 The timing wasn't coincidential: That year lawyers from Lig- 

 gett. Phillip Morris and Lorillard began taking depositions in 

 the landmark case of .Mrs. Cipollone, a New Jersey woman 

 whose family claimed she had died of smoking-related 

 squamous-cell lung cancer. .And ai the federal trial four years 

 later, a witness for the defense said the fact that the smoking 

 mice didn't get squamous-cell carcinoma (although some did 

 get cancer) showed that "cigarette smoke has not been shown 

 to be a cause of lung cancer" 



The witness also put Dr. Homberger's Syrian hamsters to 

 good use. Smoking hadn't produced any more than "micro- 

 invasive" tumors in the hamsters, noted the witness, toxicol- 

 ogist .Arthur Furst. 



Dr. Homberger, regretting he had agreed under pressure 

 to use this milder wording, calls this use of his report 

 "baloney," adding: "It was cancer beyond any question, not 

 only in our opinion but in the view of the experts who looked 

 at the slides." Dr. Furst declined to comment. 



The tobacco companies succeeded in planting doubt in 



some jurors. "I didn't think it was proven scientifically that 

 smoking caused her lung cancer." says juror Barbara Reillv 

 She says that under pressure from other jurors, she and iwo 

 other holdouts went along wiih a finding in favor of the Cipol 

 lones, but managed to hold the damages to $400.0(X) instead 

 of Ihe $20 million some wanted to give. The award was based 

 on false safely assurances by cigarette companies in their 

 pre- 1966 advertising. 



An appeals court overturned Ihe verdict, saying ihe plain- 

 tiffs had to prove Mrs. Cipollone had relied on the ad claims. 

 In December, the Cipollones withdrew the suit rather then retry 

 il, citing the cost. 



The advent of this suil had coincided with the end of the 

 Council's contract and Special Projects research, as well as 

 the waning influence of Jacob .Medinger, which departed un- 

 der pressure in 1984. Tobacco industry lawyers say privately 

 that executives and attorneys grew fearful that the Council, 

 though designed to deOect liability, would wind up incurring 

 just that, because it could be portrayed as having breached 

 a public pledge to do independent research. 



LEGAL LANDSCAPE SHIFTS 



In fact, by the mid-1980s, the industry had begun to face 

 the very suits against the Council that it feared. In one, the 

 Cipollone family's lawver. Marc Edell. sued the Council in 

 1984 on behalf of Susan Haines, the daughter of a lung-cancer 

 viciim. 



To prove his claims of fraud and conspiracy. Mr. Edell 

 has been trying to get access to the 1,500 Council documents 

 the industry has kept secret bv invoking aiiornev -client 

 privilege. Such privilege can be abrogated in case of fraud. 

 and last year a federal judge in Newark, citing possible evi- 

 dence of fraud, set in motion the process of making documents 

 available to Mr. Edell The judge. H. Lee Sarokin. who had 

 been hearing tobacco lawsuits lor a decade, wroie a ^ca!hlng 

 opinion saying that the tobacco industry may be "the king 

 of concealment and disinformaiion" 



A federal appeals court removed him from the case last 

 September for failing to mainiain the appearance of impar- 

 tiality. .A new judge will decide ihe critical is>ue of whether 

 the industry must divulge any of the 1. 500 Council documens. 



In the meantime, plaintiffs' attorneys are pinning their 

 hopes on the Supreme Court's ruling last June, The ruling, 

 which grew out of the Cipollone case, said that although 

 cigarette warning labels prevent smokers from bringing 

 "failure to warn" cases, plainiiff? may file suiN alleging iha: 

 cigarette makers intentionally hid or misrepresented tobacco'^ 

 health hazards. This has led some to view the Council lor 

 Tobacco Research as the key to recovering damages irom the 

 industry. 



But doing so may not be easy. At the end of January, a 

 state court jury in Belleville. 111., rejected the allegation thai 

 companies had conspired to play down tobacco's dangers. 

 Some say winning such a case may depend on getting access 

 to sealed Council documents 



Also facing an uphill battle is the criminal invesiigaii.in 

 by the U.S. Attorney in Brooklyn. N.V. Prosecutors are fac- 

 ing siatute-of-limitations problems because the Special Projects 

 unit was disbanded more than five years ago 



But what may prove the best protection for the tobacco 

 industry is the readiness of certain scientists to read the evi- 

 dence differently from the majority. Says Dr. Colucci. the ex- 

 Reynolds employee; "The scientists can come from Mars, bu: 

 no matter how obscure or how misbegotten, a- long as ihcv 

 are willing to tell the scientific lie that "it's not proven." the 

 tobacco industrv is off the hook" ■ 



