Pages 642-650


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ASHES TO ASHES                                                                   Pages 642-650



Melancholy Rose



THE POTENTIAL IMPACT OF these rulings on liability claims against tobacco companies was not lost on New Jersey practitioners, among them a young, smart, and highly combative Morristown attorney named Marc Z. Edell. Son of a vitamin manufacturer and a native of West Orange, Edell had been sent off to New York Military Academy, where he acquired self-discipline and a martial bearing. After taking a business degree at Boston University, he went to unaffiliated New York Law School and became a driven and dogged attorney – “a pit bull,” one latter-day colleague called Edell, not a large man – with dreams of stardom as a trial lawyer. Characteristically, he earned a first-degree black belt in karate, a skill he savored “because there’s no backing up in it. It’s all attack . . . there’s no place to hide.”

He began to learn his craft by defending pharmaceutical companies and did well at it. Soon he represented an asbestos company as that embattled industry fell into chaos over disclosures that it knew, a generation before warning workers about it, of the health peril that inhaling the fibrous material presented those who came into close contact with it. In the litigation process, Edell became expert in bronchial pathology, noting how much more prevalent lung cancer was among smokers than nonsmokers. He himself had once smoked, liked the smell, and as a self-controlled person believed that addictions such as smoking could be conquered if the will was there to do so. But as the asbestos damage awards began to mount – seventeen companies would be made to pay out $7 billion over the dozen years following the Beshada verdict – Edell saw a potential bonanza in pressing similar liability actions against the tobacco companies as well as the chance of a lifetime to grab fame.

To win, though, he would have to argue that damages awarded by juries for inadequate warnings to smoking victims were not a form of state action, impermissible under the federal cigarette labeling laws; rather, damages had to be cast as compensatory in nature, which might influence but did not coerce manufacturers to alter their conduct (in this case, to change their warning labels or simply pay the damages and carry on as before – the choice was theirs). Rather than relying on this fragile argument, Edell felt that he now had a far stronger weapon in the Beshada and O’Brien rulings. The adequacy of the cigarette warning labels was beside the point, the New Jersey courts had held, in the case of a product so unfixably dangerous that no plausible claim of utility could justify its use and no warning could immunize its manufacturer from liability suits.






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Even with this new cudgel in hand, though, Edell had to face the intimidating practicalities of charging the ramparts of the tobacco kingdom. Product liability plaintiffs generally had limited financial resources, so their lawyers had to be prepared to sustain cases at their own expense in the hope of collecting a share, usually between one-quarter and one-third, of any damages awarded. Defense counsel, mindful that a single verdict against it could stir an avalanche of litigation that might bury the tobacco industry as it had the asbestos companies, were prepared to go to almost any length not to lose. Their tactics were to try to scare off or exhaust claimants long before their cases ever reached a jury, and to assist them they had a veritable standby army of scientific and medical experts as well as investigators not above using brutally aggressive means to uncover almost every aspect of a plaintiff’s life, from dietary habits to degree of marital bliss. Plaintiffs’ depositions were likely to be grueling, and industry lawyers were adept at tossing up mountains of legal debris – infinite procedural motions and objections, all designed to drain the pocketbooks and patience of claimants’ attorneys and discourage the grieving families of claimants from sustaining the battle.

At age thirty-three, though, Edell was a battler, and after weighing all the discouragements with his older partners, he went shopping for a client prepared to face the ordeal. One partner discussed the project over dinner with a friend of his, a New York pulmonologist, who suggested that Edell visit a patient of his who had already undergone two lung cancer operations and was undergoing chemotherapy. On a warm August afternoon in 1983, Edell drove to the nearby working-class suburban town of Little Ferry to call at the immaculate home of fifty-seven-year-old Rose Cipollone (pronounced Chip-a-loan), a short, dark-haired woman going round with age. Even in depleted health, she struck him as spirited and frank. “I was laying it on the line, not trying to woo her,” Edell recounted, “and telling her it would be extremely burdensome for her . . . putting the worst face on it, sort of testing her. You don’t want to cajole someone who doesn’t have the fortitude – you don’t take on someone who just happens to be convenient for you at the moment.”

They dwelled, of course, on her smoking habit; Rose Cipollone had averaged about a pack and a half of cigarettes a day since the age of sixteen. Their exchange was the beginning of Edell’s education in tobacco and its enticements. “I was as ignorant as the rest of the public about the nature of nicotine addiction. People with a reasonable amount of self-discipline find it hard to understand how others can’t control themselves.” Their conversation grew so animated, Edell recalled, that “I didn’t realize how sick she was.” In fact, Rose was dying. Two weeks passed before the call came into his office advising that she was prepared to bring a liability suit against the three cigarette makers whose brands she had smoked for twenty-five years before government-ordered warning labels went on the packs.






ASHES TO ASHES                                                                   Pages 642-650



One advantage Edell enjoyed with Rose as his client were studies showing that women smokers encountered considerably more difficulty breaking the habit, investigators believed, because they generally exercised less control over the circumstances of their lives than men and had to endure more stresses in juggling their multiple roles as workers, homemakers, mothers, and lovers. Society allowed men, moreover, to vent their aggressions and frustrations in overt ways denied to women, such as keen competitiveness, long frowned on as unfeminine. A metabolic stimulant, smoking also served as a weight control and thus a beauty aid, to many women’s thinking, as well as a symbol of their liberation from male oppression – a notion cultivated by tobacco manufacturers for more than half a century. But even as cigarettes may have been a consolation to women for one form of powerlessness, they also induced another kind of enslavement – to the addicting powers of nicotine. Many of these emotional factors had come into play in Cipollone’s life.

Rose Defrancesco grew up on New York’s Lower East Side, one of four children, in the midst of the Depression; her father, a barber, was a smoker, but her mother was not, finding the habit unladylike. Because her father’s shop accepted posters promoting Hollywood’s latest films, Rose was given passes to the neighborhood Loew’s theater and often after school would attend that dreamland, enraptured by glamorous queens of the silver screen like Bette Davis, Joan Crawford, and Norma Shearer. Rose noticed two things in particular about her film idols: they always seemed to be wearing evening gowns, not regular dresses like she did, and they smoked a lot. She cadged old fan magazines from the neighborhood junk collector and clipped them to make scrapbooks devoted to her favorite stars, and she dressed herself in a downstairs neighbor’s grown-up clothes, rolling up little paper tubes in emulation of filmdom’s cigarette-wielding temptresses. But smoking was forbidden to the Defrancesco children; she became a nail-biter instead and confined her performing artistry to a self-taught talent playing the piano for her music-loving but poor family. After her father died of a stroke at fifty – her mother blamed it largely, and probably correctly, on his smoking – Rose at sixteen followed her older sister and began to smoke, buying two or three cigarettes at a time at the corner candy store and indulging in them in the girls’ room at her high school. She picked Chesterfields, because she thought they were glamorous and ladylike, and ads for the brand stressed their mildness. Smoking seemed “cool, grown up – fantastic,” she would tell the tobacco company lawyers who deposed her in 1984. She dropped out of school early in her senior year to help her family make ends meet, working as a packer for a scarf manufacturer, a secretary for the New York Philharmonic, and a billing clerk. By eighteen she was a pack-a-day smoker.

She was twenty-one when she met handsome, strapping Antonio Cipollone at a street festival near her home. Tony, who had emigrated from Sicily as a teenager, shared Rose’s love for music; they soon married, and Tony proved a devoted husband, laboring as a rigger at U.S. navy yards and later as a cable-splicer for U.S. Steel, eventually running his own small wire business on the side. They had three children, moved from the city to New Jersey, and lived a pleasant, modest suburban life. There was only one source of dissension in their marriage – her smoking.






ASHES TO ASHES                                                                   Pages 642-650



“He hated it,” Rose readily acknowledged. “He didn’t like the smell – he didn’t like my smell . . . .” She was a class mother for the PTA, she played the organ at their church, she hosted dinner and card parties at her home, she did the bookkeeping for Tony’s business, and she kept their snug home spotless – and she smoked all the while. The first thing she did every morning was to put a pot of coffee on and light up a cigarette – Tony, who put in twelve-hour workdays, had long since gone to his job – and would go through thirty or forty cigarettes before her last one just before she went to bed (she never smoked in the bedroom itself). She did her best to keep the smoke away from Tony, who said it was bad for his hay fever allergy and told her over and over it was not good for her health, either. When she ran out of cigarettes, Rose, who did not drive, tended to panic. Sometimes she would call the local food market for groceries the family did not really need just so she could have cigarettes delivered with the order. And if she ran out at night, she would dispatch Tony to the store for a pack. Sometimes he returned with the wrong brand, and Rose made him go back for hers. When she was pregnant for the first time, she had tried to quit – with moderate success – but  during labor she consumed a whole pack and never again tried to quit. Tony promised her he would buy her a fur coat if she would quit; she didn’t, but her adoring spouse got her the coat anyway.

Rose was health-conscious enough to switch in 1955 from Chesterfield to Liggett’s new filter brand, L&M, having noticed ads “talking about the filter tip, that it was milder and a miracle, it would keep the stuff inside a trap – whatever.” She saw “all this brown in the bottom of the filter .... I figured, ‘Gee, that’s good,’” and believed L&M would be a cleaner, fresher smoke. Liggett’s lawyers asked her, after her suit had been filed, whether she had concluded that the brand was safer.

A. No, there was advertising that made the determination for me.

Q. The advertising didn’t say those cigarettes were safer?

A. They gave me that impression that they were.... They would say “milder, low tar, low nicotine.”

Q. So you assumed that meant safer?

A. I assumed that meant safer.

Q. But they didn’t say they were safer?

A. If you say so.

When the Surgeon General’s 1964 report appeared, Rose was fully aware of it. But, she admitted, “I didn’t want to hear it. I never gave any thought to giving it up. I liked to smoke – I liked the way I looked – [it] gave me something to do.” The government report frightened her a bit, certainly, but she was “sure that if there was anything that dangerous that the tobacco people wouldn’t allow it and the government wouldn’t let them ….  The tobacco companies wouldn’t do anything that was going to kill you….so I figured until they proved it to me….I didn’t have to take it seriously. I’m being very honest with you. Maybe I didn’t want to believe it.” Even when the warning labels went on, she refused to believe it. The antismoking commercials ordered by the FCC soon followed, and Tony often pointed them out to her. She remembered one that went, “Smoking – it’s a matter of life and breath,” and got lectured by her granddaughter, who told her, “Grandma, smoking kills.” Yet she kept on.






ASHES TO ASHES                                                                   Pages 642-650



Rose Cipollone, in short, had a textbook case of what academics termed “cognitive dissonance”. A pair of social psychologists, Harold Kasarjian and Joel Cohen, both of whom would testify in the Cipollone trial, had suggested in the autumn 1965 issue of California Management Review how smokers dwelled in a constant state of disequilibrium because their dependency conflicted with the human impulse to survive and continued “in the face of undeniable and overwhelming evidence that cancer is directly attributable” to smoking. “Information can be denied, distorted or forgotten in the service of dissonance reduction,” Kasarjian and Cohen wrote, while arguments supporting the perverse conduct or belief are sought out and prized.

This denial of the undeniable became harder for Rose as she entered her forties, and her health declined. She suffered from hypertension, had her gall bladder removed and later underwent a hysterectomy, endured a pleurisy attack, and began to be racked with smoker’s cough, a symptom of chronic bronchitis. But none of this affected her passion for nicotine. Rose did switch brands in 1968, not to a low-tar cigarette but to Philip Morris’s new Virginia Slims, because “I thought they were very glamorous. . . . They were long, and it represented beautiful women . . . .” The lissome models in the Slims ads “really got to me,” so she went out and bought the kind of lounging pajamas featured in the brand’s ads. Four years later, she switched to another Philip Morris brand, Parliament, with its seemingly antiseptic recessed filter, but after two years she took the advice of her doctor, who told her that if she had to smoke, she ought to use True, Lorillard’s low-tar brand. But she smoked more of them than of her previous brands, thus defeating any conceivable therapeutic effect. She never asked a physician to help her quit or contemplated joining a cessation clinic. Whenever Tony stuck an article under her nose detailing new evidence of the perils of her compulsion, she would insist that the health charges had not been proven as yet and quip that if you strapped a monkey to a smoking machine for twenty-four hours a day, of course it would sooner or later come down with something dreadful.

In truth, she read and understood the cautionary articles and grew concerned as her hacking cough persisted. “I was saying novenas I was so scared sometimes that I was getting sick,” she said at her deposition, “and I used to make all kinds of promises to God if he didn’t let me have cancer that I wouldn’t do this and I wouldn’t do that.... But I never kept the promise, and that’s terrible….” Her denial made everything simpler. “I didn’t want to believe there was a risk. You’ve got to remember – I was addicted. I smoked. I smoked a lot. . . . You just don’t stop smoking like that. It’s very difficult.” She told the drug abuse expert whom Marc Edell sent to question her, “I didn’t think about quitting because I didn’t think I could bear it.”






ASHES TO ASHES                                                                   Pages 642-650



By attributing her smoking to an addiction, Rose had convinced herself she was the victim of a pathological condition. But medical science stopped short of characterizing drug dependency as a diseased state; there was no readily determinable threshold beyond which one could be pronounced as addicted. The 1982 statement to Congress by the National Institute on Drug Abuse (NIDA) had listed as the four most common characteristics of addiction a psychoactive effect on the user’s brain and body chemistry, compulsive use despite knowledge of the possible consequences, physical and psychological symptoms of distress during abrupt withdrawal, and a strong tendency to relapse. But the layman’s understanding of the word sufficed: to the public, “addiction” meant an activity that once begun was very difficult to stop.

Nobody, though, in or out of science said addictions were impossible to break. In the case of cigarettes, it was estimated that one-third of users tried to quit each year, and probably no more than one-fifth of those who tried succeeded for good. But that amounted to somewhere between 30 and 40 million Americans who had stopped smoking in the span between the issuing of the 1964 Surgeon General’s report and Marc Edell’s first meeting with Rose Cipollone nearly two decades later. By then a whole literature of smoking cessation had grown up, testifying that tobacco dependency was not a disease but a form of self-destructive behavior that could be remedied. Jane Brody of The New York Times summed up the consensus in a February 23, 1977, article in her paper: “No matter how strong this habit [of smoking] or how frequently it is reinforced, anyone who wants to badly enough can break it.” “Wanting to,” not the knowledge that it was bad for you, was the key; the rest was largely a matter of technique. Many articles and books were written on how to break the mechanics of the habit, how to intrude on its rituals and substitute others, how to satisfy the oral craving that contributed to an average six-pound weight gain by quitters during their first year off cigarettes (frequent drinks of water, carrot sticks, dried prunes, and sugar-free hard candy being the most often recommended replacements for nicotine).

Cigarette makers could thus justifiably argue that the charge of addiction was an excuse by the weak-willed, who based the fact that they had not quit smoking on the claim that they could not quit, as if they were in the unbreakable clutches of an iron monster, and therefore deserved forgiveness for, or at least understanding of, their behavior. By calling it addiction, in short, smokers were denying responsibility for their conduct. And how did this differ fundamentally from the alcoholic motorist who caused a fatal crash and then blamed it on the liquor manufacturer? Or the junkie who robbed, maimed, or killed in the process of feeding his habit and then claimed that he himself had been victimized by the degraded social condition of his life? In the end, the tobacco industry held, no individual could blame societal forces, and certainly not the allurements of the marketplace, for the consequences of smoking when quitting was plainly possible. Rose Cipollone, moreover, was not merely asking to be excused for her smoking by attributing it to an addiction – she was going to court to ask reparations from those who had, she claimed, knowingly foisted it on her.






ASHES TO ASHES                                                                   Pages 642-650



Rose’s luck ran out in 1981, when a routine chest X-ray disclosed a three-centimeter lesion at the rear of the upper lobe of her right lung. A bronchoscopy with a flexible tube proved negative, but Rose returned soon for a thoracotomy, in which the lung is deflated, an incision is made between the ribs, and the chest spread open. This time the surgeon found the tumor by feeling it and removed a piece for biopsy; the tissue was judged malignant, though there was some dispute over whether the cancer was an atypical carcinoid, a rare form of the disease, or the more common, fast-growing small-cell type. The affected lobe was removed in August. For eight months Rose had no further symptoms, but then she began wheezing and coughing up bloody sputum. Diagnosis showed that her middle and lower right lobes were now involved as well – the surgery had not got all the cancer. In a second operation they took out, with the rest of her lung, lymph nodes and major pulmonary arteries and began a course of chemotherapy to minimize the chances of recurrence. The chemo treatment induced an overwhelming nausea, and though Rose, unable to eat for days sometimes, tried hard to endure it – “she wanted to live so bad;” Tony later said – she called off the regimen.

She remained clinically free of disease for fifteen months, until August 1983, when, soon after having met Marc Edell, she began complaining of pain in her abdomen and legs. High-resolution X-rays detected a ten-centimeter mass behind the liver, just above the kidneys; when removed, the malignancy was diagnosed as metastasized lung cancer. Now chemotherapy was mandatory. Rose suffered no less wrenching nausea than earlier, as well as chronic intestinal upset, hair loss, and an esophagal spasm so severe she feared that she was having a heart attack. Frightened and anxious, she underwent hypnosis to still anticipatory fears of the chemo treatments, which she took from September through June 1984. At the end of February, near the close of the four-day deposition by tobacco lawyers that had utterly drained what little strength remained in her, she had begun to display symptoms of metastasis in her brain; she had trouble speaking, and bright light bothered her. Edell, finally understanding how far gone his client was, did not have the heart to depose her himself on tape, to be played eventually in the courtroom. Soon Rose’s enlarged liver was found to be riddled with multiple cancers; in September, radiographic studies of her head showed similar effects. “She had tubes all over her, drainage, everything – it was a mess,” Tony recalled. She survived on morphine now, screaming for it an hour and a half after the last shot. Tony, who rarely left her bedside, learned how to administer the painkiller so that he could take Rose home for a while. But she could not remain there.






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Tony got to her room by five in the morning on October 21, 1984, and the doctor said she did not have long. Rose and Tony talked until the priest came a little after nine. The doctor made a final visit, and then Tony took Rose in his arms, and she said, “Tony, I love you,” and he said, “I love you, too,” and Rose said, “I know,” and tears fell from her eyes until she closed them, forever. Tony sent the doctor away, screamed and cried, and when the doctor later pro­posed an autopsy, Tony said no, “because too many times she had been stabbed and cut and everything. I [didn’t] want nobody to touch her. . . . We had a beautiful relation.”

Several times during the later stages of her illness, Rose had told her young attorney that she wanted out of the liability suit he had filed in her behalf, but in the end she told Tony she wanted the case to go forward after she was gone. More than three years would pass before she got her posthumous day in court.…




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