They each had slim pocket cellphones which could not be completely secured. New codes and pa.s.swords were exchanged.
Nicholas kissed her good-bye and left her alone on the mezzanine.
WENDALL ROHR had a hunch the jury was tired of listening to researchers tout their findings and lecture from their charts and graphs. His consultants were telling him the jurors had heard enough about lung cancer and smoking, that they had probably been convinced before the trial started that cigarettes were addictive and dangerous. He was confident he had established a strong causal relationship between the Bristols and the tumors that killed Jacob Wood, and it was now time to ice the case. Thursday morning he announced that the plaintiff would like to call Lawrence Krigler as its next witness. A noticeable tension seized the defense table for the moment it took to call Mr. Krigler from somewhere in the rear. Another plaintiff"s lawyer, John Riley Milton from Denver, rose and smiled sweetly at the jury.
Lawrence Krigler was in his late sixties, tanned and fit, well dressed and quick in step. He was the first witness without Doctor stuck to the front of his name since the video of Jacob Wood. He lived now in Florida, where he"d retired after he left Pynex. John Riley Milton rushed him through the preliminaries because the juicy stuff was just around the corner.
An engineering graduate of North Carolina State, he"d worked for Pynex for thirty years before leaving in the midst of a lawsuit thirteen years earlier. He"d sued Pynex. The company"d countersued him. They settled out of court with terms being nondisclosed.
When he was first hired, the company, then called Union Tobacco, or simply U-Tab, had shipped him to Cuba to study tobacco production down there. He"d worked in production ever since, or at least until the day he left. He"d studied the tobacco leaf and a thousand ways to grow it more efficiently. He considered himself an expert in this field, though he was not testifying as an expert and would not offer opinions. Only facts.
In 1969, he completed a three-year, in-house study on the feasibility of growing an experimental tobacco leaf known only as Raleigh 4. It had one third the nicotine of regular tobacco. Krigler concluded, with a wealth of research to support him, that Raleigh 4 could be grown and produced as efficiently as all other tobaccos then grown and produced by U-Tab.
It was a monumental work, one he was quite proud of, and he was devastated when his study was at first ignored by higher-ups within his company. He slogged his way through the entrenched bureaucracy above him, with disheartening results. No one seemed to care about this new strain of tobacco with much less nicotine.
Then he learned that he was very wrong. His bosses cared a great deal about nicotine levels. In the summer of 1971 he got his hands on an intercompany memo instructing upper management to quietly do whatever possible to discredit Krigler"s work with Raleigh 4. His own people were silently knifing him in the back. He kept his cool, told no one he had the memo, and began a clandestine project to learn the reasons for the conspiracy against him.
At this point in his testimony, John Riley Milton introduced into evidence two exhibits-the thick study Krigler completed in 1969, and the 1971 memo.
The answer became crystal clear, and it was something he"d come to suspect. U-Tab could not afford to produce a leaf with markedly lower nicotine, because nicotine meant profits. The industry had known since the late thirties that nicotine was physically addictive.
"How do you know the industry knew?" Milton asked, very deliberately. With the exception of the defense lawyers, who were doing their best to appear bored and indifferent, the entire courtroom was listening with rapt attention.
"It"s common knowledge within the industry," Krigler answered. "There was a secret study in the late 1930s, paid for by a tobacco company, and the result was clear proof that the nicotine in cigarettes is addictive."
"Have you seen this report?"
"No. As you might guess, it has been well concealed." Krigler paused and looked at the defense table. The bombsh.e.l.l was coming, and he was thoroughly enjoying the moment. "But I saw a memo-"
"Objection!" Cable shouted as he rose. "This witness cannot state what he may or may not have seen in a written doc.u.ment. The reasons are plentiful and are set out more fully in the brief we filed on this point."
The brief was eighty pages long and had been argued over for a month now. Judge Harkin had already ruled, in writing. "Your objection is noted, Mr. Cable. Mr. Krigler, you may continue."
"In the winter of 1973, I saw a one-page memo summarizing the nicotine study from the 1930s. The memo had been copied many times, was very old, and had been slightly altered."
"Altered in what way?"
"The date had been deleted, as had the name of the person sending it."
"To whom was it sent?"
"It was addressed to Sander S. Fraley, who at that time was the president of Allegheny Growers, the predecessor of a company now called ConPack."
"A tobacco company."
"Yes, basically. It calls itself a consumer products company, but the bulk of its business is manufacturing cigarettes."
"When did he serve as president?"
"From 1931 to 1942."
"Is it then safe to a.s.sume the memo was sent prior to 1942?"
"Yes. Mr. Fraley died in 1942."
"Where were you when you saw this memo?"
"At a Pynex facility in Richmond. When Pynex was still Union Tobacco, its corporate headquarters were in Richmond. In 1979, it changed its name and moved to New Jersey. But the buildings are still in use in Richmond, and that"s where I worked until I left. Most of the company"s old records are there, and a person I know showed me the memo."
"Who was this person?"
"He was a friend, and he"s now dead. I promised him I"d never reveal his ident.i.ty."
"Did you actually hold the memo?"
"Yes. In fact, I made a copy of it."
"And where is your copy?"
"It didn"t last long. The day after I locked it in my desk drawer, I was called out of town on business. While I was out, someone went through my desk and removed a number of things, including my copy of the memo."
"Do you recall what the memo said?"
"I remember very well. Keep in mind, for a long time I"d been digging for some confirmation of what I suspected. Seeing the memo was an unforgettable moment."
"What did it say?"
"Three paragraphs, maybe four, brief and to the point. The writer explained that he had just read the nicotine report that was secretly shown to him by the head of research at Allegheny Growers, a person who went unnamed in the memo. In his opinion, the study proved conclusively and beyond any doubt that nicotine is addictive. As I recall, this was the gist of the first two paragraphs."
"And the next paragraph?"
"The writer suggested to Fraley that the company take a serious look at increasing the nicotine levels in its cigarettes. More nicotine meant more smokers, which meant more sales and more profits."
Krigler delivered his lines with a fine flair for the dramatic, and every ear soaked up his words. The jurors, for the first time in days, watched every move the witness made. The word "profits" floated over the courtroom and hung like a dirty fog.
John Riley Milton paused for a bit, then said, "Now, let"s keep this straight. The memo was prepared by someone at another company, and sent to the president of that company, right?"
"That"s correct."
"A company that was then and is now a compet.i.tor of Pynex?"
"That"s correct."
"How did the memo find its way to Pynex in 1973?"
"I never found out. But Pynex certainly knew about the study. In fact, the entire tobacco industry knew about the study by the early 1970s, if not sooner."
"How do you know this?"
"I worked in the industry for thirty years, remember. And I spent my career in production. I talked to a lot of people, especially my counterparts at other companies. Let"s just say that the tobacco companies at times can stick together."
"Did you ever attempt to obtain another copy of the memo from your friend?"
"I tried. It didn"t work. Let"s leave it at that."
EXCEPT for the usual fifteen-minute coffee break at ten-thirty, Krigler testified nonstop for the three-hour morning session. His testimony pa.s.sed by as if it were only a matter of minutes, and was a crucial moment in the trial. The drama of an ex-employee spilling dirty secrets was played to perfection. The jurors even ignored their customary longings for lunch. The lawyers watched the jurors more closely than ever, and the Judge seemed to write down every word the witness said.
The reporters were unusually reverent; the jury consultants unusually attentive. The watchdogs from Wall Street counted the minutes until they could bolt from the room and make breathless phone calls to New York. The bored local lawyers hanging around the courtroom would talk about the testimony for years. Even Lou Dell stopped her knitting on the front row.
Fitch watched and listened from the viewing room next to his office. Krigler had been scheduled to testify early next week, and then there"d been the chance that he wouldn"t testify at all. Fitch was one of the few people still alive who"d actually seen the memo, and Krigler had described it with amazing recollection. It was clear to everyone, even Fitch, that the witness was telling the truth.
One of Fitch"s first a.s.signments nine years ago when he"d first been hired by the Big Four was to track down every every copy of the memo, and destroy each one. He was still working on it. copy of the memo, and destroy each one. He was still working on it.
Neither Cable nor any defense lawyer retained by Fitch so far had seen the memo.
The admissibility of its existence in court had caused a small war. The rules of evidence normally prevent such verbal descriptions of lost doc.u.ments, for obvious reasons. The best evidence is the doc.u.ment itself. But, as with every area of the law, there are exceptions and exceptions to the exceptions, and Rohr et al. had done a masterful job of convincing Judge Harkin that the jury should hear Krigler"s description of what was, in effect, a lost doc.u.ment.
Cable"s cross-examination that afternoon would be brutal, but the damage was done. Fitch skipped lunch and locked himself in his office.
IN THE JURY ROOM, the atmosphere over lunch was remarkably different. The ordinary drivel about football and recipes was replaced by a virtual silence. As a deliberative body, the jury had been lulled into stupor with two weeks of tedious scientific testimony from experts who were being paid large sums of money to travel to Biloxi and lecture. Now the jury had been shaken back to life with Krigler"s sensational inside dirt.
They ate less and stared more. Most wanted to ease into another room with their favorite friend and replay what they"d just heard. Did they hear it right? Did everyone understand what the man just said? They intentionally kept nicotine high so people got hooked!
They managed to do just that. The smokers, only three now since Stella had departed, though Easter was a semi-smoker because he preferred to spend time with Jerry and Poodle and Angel Weese, ate quickly then excused themselves. They all sat on folding chairs, staring and puffing at the open window. With the weighted nicotine, the cigarettes felt a bit heavier. But when Nicholas said so, no one laughed.
Mrs. Gladys Card and Millie Dupree managed to leave for the rest room at the same moment. They took a long pee then spent fifteen minutes washing their hands and speaking to each other in front of the mirror. They were joined in mid-conversation by Loreen Duke, who leaned by the towel dispenser and quickly threw in her amazement and disgust with tobacco companies.
After the table was cleared, Lonnie Shaver opened his laptop two chairs down from Herman, who had his braille machine plugged in and was typing away. The Colonel said to Herman, "Don"t guess you need a translator for that testimony, do you?" To which Herman replied with a grunt and said, "Pretty amazing, I"d say." That was the nearest Herman Grimes came to discussing any aspect of the case.
Lonnie Shaver was not amazed or impressed by anything.
Phillip Savelle had politely asked for and received permission from Judge Harkin to spend part of his lunch break doing yoga under a large oak tree behind the courthouse. He was escorted by a deputy to the oak tree, where he removed his shirt, socks, and shoes, then sat on the soft gra.s.s and creased himself into a pretzel. When he began chanting, the deputy slid away to a nearby concrete bench and lowered his face so no one would recognize him.
CABLE SAID h.e.l.lO to Krigler as if the two were old friends. Krigler smiled and said "Good afternoon, Mr. Cable," with an abundance of confidence. Seven months earlier, in Rohr"s office, Cable and company had spent three days taking a video deposition of Krigler. The video had been watched and studied by no fewer than two dozen lawyers and several jury experts and even two psychiatrists. Krigler was telling the truth, but the truth needed to be blurred at this point. This was a cross-examination, a crucial one, so to h.e.l.l with the truth. The witness had to be discredited!
After hundreds of hours of plotting, a strategy had been developed. Cable began by asking Krigler if he was angry with his former employer.
"Yes," he answered.
"Do you hate the company?"
"The company is an ent.i.ty. How do you hate a thing?"
"Do you hate war?"
"Never been."
"Do you hate child abuse?"
"I"m sure it"s sickening, but luckily I"ve never had any connection with it."
"Do you hate violence?"
"I"m sure it"s awful, but, again, I"ve been lucky."
"So you don"t hate anything?"
"Broccoli."
A gentle laugh came from all quarters of the courtroom, and Cable knew he had his hands full.
"You don"t hate Pynex?"
"No."
"Do you hate anyone who works there?"
"No. I dislike some of them."
"Did you hate anyone who worked there when you worked there?"
"No. I had some enemies, but I don"t remember hating anyone."
"What about the people against whom you directed your lawsuit?"
"No. Again, they were enemies, but they were just doing their jobs."
"So you love your enemies?"
"Not really. I know I"m supposed to try, but it sure is difficult. I don"t recall saying I loved them."
Cable had hoped to score a minor point by injecting the possibility of retribution or revenge on the part of Krigler. Maybe if he used the word "hate" enough, it might stick with some of the jurors.
"What is your motive for testifying here?"
"That"s a complicated question."
"Is it money?"
"No."
"Are you being paid by Mr. Rohr or anyone working for the plaintiff to come and testify?"
"No. They"ve agreed to reimburse me for my travel expenses, but that"s all."
The last thing Cable wanted was an open door for Krigler to expound upon his reasons for testifying. He had touched on them briefly during Milton"s direct examination, and he"d spent five hours detailing them during the video deposition. It was crucial to keep him occupied with other matters.
"Have you ever smoked cigarettes, Mr. Krigler?"