------------------------------------------------------------------- F.A.C.T.Net, Inc. (Fight Against Coercive Tactics Network, Incorporated) a non-profit computer bulletin board and electronic library 601 16th St. #C-217 Golden, Colorado 80401 USA BBS 303 530-1942 FAX 303 530-2950 Office 303 473-0111 This document is part of an electronic lending library and preservational electronic archive. F.A.C.T.Net does not sell documents, it only lends them according to the terms of your library cardholder agreement with F.A.C.T.Net, Inc. ===================================================================== A Crafty Lawyer Turns Up the Heat By EBEN SHAPIRO Staff Reporter of THE WALL STREET JOURNAL An army of lawyers, led by a flamboy- ant New Orleans attorney named Wendell H. Gauthier, is taking on the tobacco industry in the most lavishly financed assault to date. Fifty law firms have promised an initial investment of $100,000 each to finance a class action on be- half of all people ad- dicted to cigarettes; the first payment of $25,000 is due by the end of May. More than 100 lawyers are working part time on the suit, and the group is preparing to buy a $1 million office building in New Or- leans to serve as a document deposi- tary and headquar- Wendell H. Gauthier ters for the case. Mr. Gauthier filed the putative class action at the end of March in Louisiana federal court. A bantamweight man with a mischievous glint in his eye, Mr. Gauthier describes his lawsuit's strategy as, "You addicted me. You knew it was addicting, and now you say it's my fault." Earlier suits unsuccessfully charged that the in- dustry had failed to warn smokers about health risks and sold a defective product. Mr. Gauthier also plans to argue that tobacco companies have targeted teen- agers, who are incapable of making a free and informed choice. The tobacco class action was filed just days after congressional hearings on whether the tobacco industry is intention- ally maintaining nicotine at addictive levels in cigarettes. Testimony and re- cently disclosed internal documents from Brown & WHliamson Tobacco Corp. sug- gest that tobacco executives have long known and suppressed information that nicotine is addictive. That information is expected to test the industry's traditional legal defense that smokers know the health risks of smoking and are free to quit anytime. Tobacco companies have yet to pay a cent in damages for a smoking suit. Mr. Gauthier and his frequent co-coun- sel, Stanley M. Chesley of Cincinnati, who has been dubbed the "Master of Disaster" for his victories in big personal injury cases, are moving directly to the tobacco suit after helping negotiate the recent $4 billion settlement on behalf of women who claimed injuries from silicone-gel breast implants. The names of the other lawyers in the suit read like a "Who's Who" of the national plaintiff's bar. They include Mel- vin M. Belli of San Francisco; John P. Coale of Washington D.C., who is also representing victims of the recent train crash in North Carolina; Ronald L. Motley of Charleston, S.C., a. leading asbestos law- yer; and Mark P. Robinson Jr. of Mission Viejo, Cal., who was co-counsel in the 1979 Ford Pinto suit. Mr. Gauthier, 51 years old, views each new class action as a business start-up, and he functions much like a chief execu- tive, dividing tasks among different law firms. At a recent planning meeting for the tobacco case, he assigned one lawyer to work on the search for a headquarters for the legal team and cut short discussion approving stationery for the suit. He spent more time exploring security issues for the 2.5 million documents that are expected to be disclosed in discovery. An influential voice in New Orleans, Mr. Gauthier is a confidant of Edwin Edwards, the governor of Louisiana. He is also part owner of the New Orleans Saints football team and the head of a group of investors in a new casino project. He negotiates the narrow streets of the French Quarter in a Rolls-Royce while talking on his car phone. Local residents approach him on the street and call him by his first name; restaurateurs won't take his money. Beneath the good old boy demeanor is a killer instinct, say experienced adversar- ies. Mr. Gauthier is "very aggressive and will do a lot more and go a lot further than most lawyers will," says William P. Kar- daras, a New York defense attorney who opposed Mr. Gauthier and a group of lawyers in the case stemming from the 1986 San Juan DuPont Plaza Hotel fire, which was settled for $235 million. "What- ever it takes to win, within the system, they will do," says Mr. Kardaras. "Whether you call that fair or unfair, I won't characterize." Mr. Gauthier is known for using uncon- ventional tactics to keep people off guard. He greeted a reporter with an elaborate prank: Wearing a monkey mask and bran- dishing a fake gun, he posed as an unstable whistle-blower peddling incriminating to- bacco industry documents while hidden cameras recorded the whole incident. An-. __ ~ other time, he called a partner in the middle of the night and said, "The presi- dent of R.J. Reynolds has just confessed everything, get on it" and hung up. "You tend to discount him as just a clown. R throws you off your game," says Gary L. Bostwick, a defense attorney in the San Juan Hotel fire case. Mr. Gaulbier once slipped Mr. Bostwick a pair of plastic handcuffs before a deposition, suggesting that Mr. Bostwick or his client would soon be needing them. Mr. Kardaras's advice to the cigarette companies: "Get the best defense lawyers they can and stay awake. They are very formidable adversaries." In the tobacco industry's lawyers, Mr. Gauthier will meet formidable opponents. So far, the tobacco industry has been able to outspend and outlast the small law firms that have pursued smoking liability cases. One experienced tobacco litigator, Marc Z. Edell, largely dropped his tobacco cases in 1992, pleading financial hardship after having spent $1.2 million in out-of-pocket expenses over 10 years. Tobacco company lawyers tied up one of Mr. Edelrs expert witnesses in depositions for 22 days on one case. "To paraphrase Gen. Patton, the way we won these cases was not by spending all of JR JR's] money, but by making the other son of a bitch spend all of his," an attorney for R jR Nabisco Holdings Corp. wrote in a memo. "So far, the tobacco industry has had to fight only one victim at a time," says William S. Lerach, a San Diego lawyer pursuing a separate class-action suit on behalf Of people who have paid for nicotine patches to overcome their addiction to smoking. The tobacco giants "have been able to grind up every one of the individual victims into a fine powder and get rid of them." The narrow focus on addiction is "go- ing to be more palatable to a jury," than previous tobacco cases, says Gregory Ma- zares, president of Litigation Sciences Inc., a firm that specializes in predicting how jurors will respond. Tobacco company lawyers say they will continue to prevail. "Jurors believe that people can quit smoking," says Chuck Wall, associate general counsel for Philip Morris Cos. Mr. Wall doesn't believe the courts will certify the new cases as class actions because each smoker's case is different. "I don't think this is a new day," he says. Mr. Gauthier dismisses the tobacco companies' arsenal with characteristic bravura: "They're not going to outman us. They're not going to outfund us. 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