Imagine Matlock knocking the Marlboro Man out of the saddle. That was the unlikely scenario on March 13 when a cigarette manufacturer, for the first time ever, broke ranks with the tobacco industry to settle a class-action lawsuit. Although the other big tobacco companies haven't given up the fight-they argued before a federal appeals court in New Orleans April 2 that individuals should be forced to pursue lawsuits separately, rather than in a class action-analysts agree that the Liggett settlement has dealt the industry a crippling blow.
Most analysts agree that the defection by tiny Liggett Inc. is the worst thing to hit big tobacco since the invention of the no-smoking sign. The renegade company has agreed to stop marketing to children, to cooperate with the investigation into alleged nicotine-loading by other cigarette makers, and to reimburse several states for their tobacco-related Medicaid expenses.
Almost as unusual as the settlement itself is the lawyer behind it. Don Barrett is neither Perry Mason nor Howard Metzenbaum. He professes to be intimidated by high-powered New York attorneys and antagonistic to anti-business liberals. He's a theological conservative in a liberal denomination: Mr. Barrett is a member of First United Methodist Church of Lexington, Miss.
"I'm a conservative," he insists. "I'm a Republican. You might not believe it, but I'm a conservative Republican trial lawyer."
Mr. Barrett is also proud to be a follower of Christ. He's proud to be a member of a small family law firm. And he's proud to be a "slow-talking, slow-thinking lawyer from Mississippi." If the aw-shucks manner and the deep southern drawl are affectations, Mr. Barrett pulls them off flawlessly. He seems genuinely bewildered by his sudden success. He seems genuinely thankful for what he sees as the Lord's leading in the case.
But most of all, Mr. Barrett seems genuinely indignant. After more than a decade of getting burned by tobacco company lawyers, he's ready to see the whole industry snuffed out. The Liggett settlement, he believes, is the first step in achieving that goal.
Barrett recently took advantage of a 30-minute court recess to talk to WORLD about the many implications of the case against big tobacco: Medicaid and morality, responsibility and restitution, principles and precedents.
WORLD: Business Week called the Liggett settlement a "breach in the walls of Fortress Tobacco."
Barrett: It's more than a crack in the wall or a hole in the dike. I think it's more like a brick through the windshield. You remember the Wizard of Oz, where everybody was scared of the great wizard and Toto ran up and pulled the curtain back and it was a little guy turning a crank? That's what we've done. We've pulled the curtain back, and we have exposed their vulnerability.
WORLD: So you see this as a moral crusade?
Barrett: Yes, it is a moral crusade. The tobacco industry itself is evil and it does evil things-horrible things-to this country.
I think that the Lord wants us to do this. It is ridiculous to think that a lawyer from a little small town in Mississippi would be negotiating the settlement with a major tobacco company-the historical settlement. But he just put me in the right place. It's all providential and anybody that can't see the hand of God is just blind.
WORLD: Back to the point about the tobacco industry's being an evil industry. The case seems to hinge on the allegation that cigarette makers manipulated nicotine levels in order to keep people hooked. Do you see that as the crux of the case?
Barrett: I see that as the crux of the Castano addiction case [the huge class-action suit filed on behalf of every smoker who has been harmed by cigarettes]. We have evidence that is accumulating almost daily. People are calling us that worked for these companies [to say], "Yes, we did do that and we've been afraid to come forward."
WORLD: What about the separate settlements that Liggett reached with the states?
Barrett: The best way to describe it-and the way I've thought of it all along-is the Good Samaritan analogy. The guy leaves Jerusalem, he's out on the road and the robbers set upon him and beat and rob him and leave him for dead. Eventually the Good Samaritan comes along and binds up his wounds, puts him on his donkey, takes him into the town, tells the innkeeper, "Fix him up, and by the way, here's enough money to last for the next few days until he gets well," and then leaves.
Now, as between the Samaritan and the robbers, who ought to pay? It sort of answers itself, doesn't it? That's what has happened. The state of Mississippi has taken care of the medical needs of these poor people. We operate charity hospitals. We do Medicaid. We take care of emergency room people when nobody else will take care of them.
No doubt nobody made them smoke, and maybe they shouldn't have been smoking, but between us [the state] and the people that made them sick, who ought to pay that bill? Somebody has got to pay it. You say the smoker himself ought to pay? He's not paying it. He's not able to pay it.
WORLD: Do you think that there's any chance at all that the message to individuals from this case could be, "Go ahead and do what you want, the government will take care of the consequences?"
Barrett: Absolutely not. The government has done nothing to help us. In fact, Congress has fought us tooth and toenail. What we've done, it's been individual lawyers scattered around the country working hard, representing clients. The fact is that our judicial system is an important part of this great nation. It gives poor people, the little guy, the opportunity to have his redresses actually heard and I'm proud to be a part of that.
WORLD: But what about individual responsibility? Religious liberals and religious conservatives alike talk about sins, but liberals generally talk about social sins like corporate greed and war, while conservatives talk about personal sins like covetousness and hate.
Barrett: But both are sins. Greed is greed, whether it's your neighbor who's taking advantage of somebody who works for them, or whether it's a major corporation. Hatred is hatred. I feel that corporations-these artificial persons, these creatures of the law that have no soul that can be punished in the hereafter-have no morality. Major companies have to be held to the same standards that individuals are in regard to their actions.
WORLD: Again, what about the individual? How does the smoking case differ from the case of the woman who sued McDonald's because her coffee was too hot? In both cases, didn't the people know there was a potential danger? And weren't the companies actually just giving them what they wanted?
Barrett: The Castano case is about addiction, for Pete's sake. If you're getting children addicted, that's not about a free choice. Shouldn't tobacco companies be held at least partially responsible for getting someone hooked who's too young to make a responsible decision?
WORLD: What about this: By the time this is over, every single American will surely know that tobacco companies allegedly manipulate the level of nicotine in cigarettes. If even then, people choose to continue smoking, do you think they ought to be able, on their deathbed, to get financial compensation from the companies that sold them what they asked for?
Barrett: For people who started smoking as adults, maybe not. But I'll buy you a pack of Winstons for every person you can find me who started smoking as an adult.
WORLD: Back to the Mississippi case. The settlement gives the state a percentage of Liggett's annual profits up to some future date. If cigarette manufacturing is evil, does the state really want to accept profits from that industry? Doesn't that put the government in the position of hoping for the industry's continued success?
Barrett: It's a good question, and it's a question that we wrestled with. [People] say, "You've just gone into bed with the cigarette company." Here's what they've done for us to "go into bed with them." They have agreed not only to pay the money, but to fundamentally change the way they market cigarettes. They have agreed fundamentally no more marketing cigarettes to children. And that's an end game for them, because if they don't have children to replace the smokers who die every day-if they quit hooking our children, eventually down the road they are committing themselves to go out of business.
Under the terms of these things Joe Camel is dead. All these marketing programs for children-billboards around schools, the T-shirts and hats that look cool, it's all gone, it's dead. So we've "gotten into bed" with a company that's agreed to act responsibly. Yes, it does bother us somewhat, but the benefits to be gained from the settlement outweigh that concern.
OK, since they ended up in bed together, maybe "Matlock and the Marlboro Man" isn't such a good analogy after all. But then, come to think of it, neither is the Good Samaritan.
Don Barrett may actually win his crusade against big tobacco. Christian groups will not shed tears when Philip Morris and R.J. Reynolds are slapped with hundred-million-dollar penalties. But what then? If hard cases make bad law, what will be the precedent set by the hard case against the cigarette makers? Does Liggett's settlement with Mississippi legitimize the notion that the state should pay the medical expenses of residents who have engaged in risky behavior? What would that mean in the case of AIDS, alcoholism-or even overeating?
And what about that question of individual responsibility? Every person who has picked up a pack of cigarettes in the last quarter century knows that the Surgeon General has determined that smoking is risky and addictive. The decision to smoke isn't made just one time at the age of 14 or 15; every time a smoker lights up, he's making that decision all over again. If someone chooses to destroy the temple of God, should he then turn around and blame the company that supplied the wrecking ball? Should the Surgeon General's health warning be replaced by the Attorney General's legal advice?
Questions like these are beyond the scope of the Castano case and beyond the control of Don Barrett. But if, based on Castano, judges begin to decide that responsibility for actions rests with the state or the corporation-anything but the individual-the long-term effects will be devastating, and the euphoric sense of conquering big tobacco will go up in smoke.