The money was an important public health tool. It was important to reimburse
the states for their health care expenditures and to create a pool of money to
fund the enforcement actions of the FDA. Other than that, it was the
regulatory mechanisms that we were trying to put into place.
The restrictions on marketing of this product to children. To sort of, to try
to reverse the trend in the proliferation of tobacco.
Q. You want people to believe, people who are looking at you as a personal
injury lawyer, a pirate in the courtrooms of America, that you really just care
about the public health? The money didn't matter.
Scruggs: The money mattered. It didn't matter as much as the public
health. It is not often in life that you have a chance to make a mark on
humanity. And we all got caught up in the opportunity that this presented to
Q. You got into the asbestos litigation. What did you learn about the value
of representing masses of people?
Scruggs: It is a unique, it is unique type of law practice. On the one
hand, you are not able to develop the unique lawyer/client relationship with
your clients when you represent thousands of people. You can't spend the time
you would like to spend with your client on an individual basis with each one
of them. You have got to sort of organize the thing so that you can get them
all to the doctor, get them all diagnosed, get them...the ones who have the
disease. And you have to screen for exposures and that sort of thing. And then
you have to get their cases filed and managed so it requires a great deal of
organization to get that done properly.
Q. But it raises the stakes, right, in terms of what you can go after. I
mean you can actually show up at the defendant corporation's door, in this
case, and say I don't want just a hundred thousand, I want ten million.
Scruggs: It raises the stakes only if you have a judicial system that
permits the aggregation or consolidation of a large number of cases at one time
such that if they lose one case, they are losing, essentially, 4,000 cases.
And the costs are prohibitive. You have raised the stakes to the point where
they really can't afford to go to trial and lose. We were able to, to convince
the judge in our county to, to consolidate some 7,000 cases. Pick a
representative sample of those cases to go to trial. And let that verdict be
binding on all the rest.
Q. And that leads to a quote that I saw from you that says, "I like to get
the stakes so high that neither side can afford to lose." Now what does that
Scruggs: That means that ordinarily in mass tort cases there is no way
to, to try any individual case because the defendant has the advantage. He can
beat you one at a time or, even if you beat them one at a time, you have not
put them in mortal danger.
When you raise the stakes through consolidations or bringing large numbers of
claims together, you have... You have given them an incentive to settle what
would not otherwise be present. And usually a good settlement is far superior
to trench warfare, trial-by-trial litigation. Because then only a few clients
get paid and the rest have to wait in line.
Q. So, when you and Motley appear on the scene in the tobacco litigation,
you are already veterans of the asbestos situation.
Scruggs: The idea of the tobacco suit came up in the midst of the four
month trial, asbestos trial in 1993. And we pretty much had that case in hand
after about three months. We thought we were going to win it. We were mostly
mopping up. The defendants were putting on their case and we were pretty much
mopping up in the case. And I remember, one day in court when I mentioned to
Motley that Mike Moore was interested in bringing a suit on behalf of the poor
people of Mississippi, or the taxpayers of Mississippi, to collect, recover
against the tobacco industry the cost to the state for treating poor people.
I thought I was going to have to put a seat belt on Motley. He was about to
He wanted to try the case right then. And we weren't even through with the
asbestos trial. He was inspired, to say the least.
And Motley is a quick study and the idea of doing something on that scale
inspired him. I mean, he was, he needed sedation after I told him about it.
Q. We think of Ole' Miss and, I mean I am old enough to remember the riots
and what went on. And we don't think of Ole Miss as a bunch of lawyers who are
going to get together, veterans of Ole Miss, and sue the pants off major
industries in the United States. Is that just a Yankee stereotype?
Scruggs: It may be. I don't know that there is anything unique about
Ole Miss or about Mississippi in this particular area. It turned out to be a
coincidence, I think, more than anything else, that we took advantage of.
The coincidence being that Mike Moore was the Attorney General. He was our
classmate and our friend. We had represented Mike in previous litigation
against the asbestos industry, very successfully. The partnership had worked
We had gotten involved in tobacco legislation. We had money in our pockets as
a result of the asbestos litigation, so all of these...all of these elements,
by chance, came together. And I think that almost simultaneously we realized
the potential we had there. With a war chest, with legal talent, with an
Attorney General, a state official who was willing to do it. Is enthusiastic
about doing it. And some bright legal ideas about how to get it done.
Q. And you did some thinking about what court to file it in, right?
Scruggs: We did, we did.
Q. With a judge who was another Ole Miss graduate?
Scruggs: That's right. Not our classmate again. And not a judge that
we knew very well or had any prior dealings with to speak of. But, in fact, we
didn't know for sure what judge we would end up with in the case. We went
through two judges before we ended up with the judge that actually tried the
But the type of lawsuit that we filed, was dictated, really, by two things. We
hired Dick Morris to do an in depth public opinion survey of Mississippians.
Q. Dick Morris of recent Clinton fame?
Scruggs: That is right, that is right.
Q. And how did you get to him? Through Trent Lott, right?
Scruggs: I had met Dick several years earlier through Trent. I think
back in 1989. I asked Trent... I was representing the state, again Mike
Moore, in a suit against the asbestos industry on behalf of the state.
Q. So you needed him to do what? To poll?
Scruggs: To poll the state. To poll public attitudes about asbestos
companies. This is back in 1989 and Trent said, "Well look, Dick Morris is a
guy who can do that for you, use him." So I called Dick, hired him, used him.
And when we were anticipating the tobacco litigation, I did the same thing.
Q. And what did his polling show?
Scruggs: It showed that it would be very problematic to win the case.
It identified the demographic groups who would be most like to be for us and
against us. The poll results were fairly discouraging.
Q. Why would you guys want to take on tobacco? I mean, at that point, you
also knew that there was a lot of down sides to tobacco. They weren't the
asbestos industry. They could wipe you out.
Scruggs: This was an industry that had never been beaten. That had
fortified itself for decades against litigation. Had prepared and covered
every conceivable litigation angle. It was sort of like the challenge of
climbing Mount Everest the first time. It had never been done. Uh, in theory
you could do it. But nobody had ever done it.
Q. So, you went into the trenches and thought about it, and schemed, and
came up with this unique plan.
Scruggs: Yeah, that's right. And we did it, I think initially, uh, just
out of a professional, uh, inspiration to try to do something that had never
been done before, to try to take on this industry that had literally defied the
judicial system and the regulatory system for decades. And yet, was killing
millions of people. Uh, you know, it was just a challenge that cried out for
somebody to do it.
Q. You got a lawsuit, but you know that you're going to have discovery
problems, you always do with this industry. They'll fight you to the Supreme
Court. Then comes Merrell Williams. Who was Merrell Williams?
Scruggs: Merrell Williams was a former paralegal at a law firm in
Kentucky that was hired by Brown & Williamson Tobacco Company to review all
of its, uh, dirty linen, all of its documents. And Merrell Williams decided,
uh, some time well prior to the time we knew about him, to photocopy and
secrete away those documents, the ones that were explosive. And, uh, go about
somehow making them public.
Q. Well, he went through a number of machinations, but these documents as I
understand it, were so hot that before you ever met Merrell Williams, a variety
of people backed off.
Scruggs: I'm just now learning about that. ... When he came to us, he
initially came to Don Barrett, I spoke of him earlier. And, uh, asked for a
meeting. We had a meeting with him, uh, in a restaurant in Jackson,
The old time deli in Jackson, Mississippi. And Don and I and another lawyer
that worked for Don named Cindy Langston met with Merrell. He looked like
warmed over death. He looked unkempt. Not quite like he'd been sleeping under
a bridge but close to it. He was obviously very ill, very nervous, had been
Q. He thought you were an FBI agent apparently.
Scruggs: He did. I guess because I have short hair and out of town, he
asked me two or three times if I were with the FBI. And I reassured him that I
was not. But he was very apprehensive.
Q. He's nervous because he's got stolen documents.
Scruggs: We knew about a little of his background from press clips at
that time. But he never admitted at the time that he had any documents. He
talked in circles. I think he was basically taking our measure to see if we
were likely to be people who would back him up or people who would turn him
Q. Now, eventually he does trust you. You. . . he says to you let's go to
Scruggs: That's right. After some discussions with him over the
coming, over the following two or three months in early 1994, uh, he, uh,
confided to me and to Don that he had indeed had documents that were very
Q. In sum, when you looked through these documents, what was your
Scruggs: I looked at Merrell, and I said, "These guys are toast."
We've got them. And it turned out that that was one of the more explosive
documents in the group.
Q. Now, you've got a pile of stolen documents which Brown and Williamson
knows are out there, right.
Scruggs: No, I don't think they knew they were out there.
Q. Well, they knew Merrell had something.
Scruggs: But they were not sure that he had not turned over all the
documents he had. He had been ordered by a court up there to turn them all
back over to Brown & Williamson and they didn't know for sure whether he
had or not at this time.
Q. But you and Mike Moore, decide that the only way you can use the
documents is to get them out there.
Scruggs: No, actually, it was on our mind at the time to use the
documents in litigation. After reading those documents that day, I think it
was a Saturday. I called Mike Moore who's in Jackson. I said, you've got to
see these documents. Flew up about night down, had a couple of other lawyers
on the team including Don Barrett, uh, look at the documents as well. Uh, and
it was pretty clear that these documents were clear evidence that the testimony
that the CEOs of the industry had just given to Congress a month earlier.
Q. That's where they go, we believe that nicotine is not addictive.
Scruggs: Well, they all seven raise their right hands and swore that in
their opinion nicotine was not addictive and swore to other things. That it
was clear that they had either lied, deceived, or misled Congress in that
testimony. And that these documents showed that. Our view then, was that
these documents, evidenced a fraud. And that we should take them to the people
who were investigating the tobacco industry. That is the very Congressmen who
are asking those questions. The congressional subcommittee that was at the
time chaired by Congressman Henry Waxman. So, about ten days later, we got an
appointment with Congressman Waxman. And we. . . Mike Moore and I flew up
there. And personally hand carried those documents to him. It was about that
time, uh, that or shortly thereafter that the documents appeared in the
Q. Stop for a second here. You walk into Congressman Waxman's office. This
is his, in a sense, life work to get the tobacco industry.
Q. And you put on his desk 4,000 pages of files.
Scruggs: Right. Two huge boxes.
Q. And say to him, what?
Scruggs: We have documents that would indicate that the testimony that
was, given before your community last month was a lie. And we felt that you
were the person who should have these documents. You're the congressional
oversight committee. And we don't know what else to do with them. We're
certainly not going to give them back to the industry without making them known
to some agency of the Federal government or someone who is in a position to do
something about this.
Q. Did you tell him that they were basically stolen documents?
Scruggs: Yes. I think that we didn't tell him so much that they were
stolen documents but that we had received them through a whistle blower. I
think that it was implied that they were stolen documents.
Q. Well, you didn't have a subpoena, you didn't get them by subpoena. But
they didn't give them to you.
Scruggs: No, they didn't. I don't think we ever used the word that
these are stolen documents.
Q. You came by them through some fortuitous means.
Scruggs: Sure, through whistle blower action, that we got these
documents. And clearly, uh, we were not supposed to have them. And I think,
uh, Congressman Waxman was a little ambivalent.
Q. He didn't dive into the box.
Scruggs: No, he didn't. Not, right in front of us, he didn't.
Q. Did he step back?
Scruggs: He did. It was almost as if it was radioactive. He wanted to
embrace them, but at the same time, he was afraid of them. It was like, almost
a physical reaction. But, after some initial discussion about the documents
and our characterization of what they were and why we had. . . how we had come
into possession of them. And why we were bringing to them. Then asked us to
meet with his staff. And his staff then proceeded to go through them like a
hungry lion. They were just. . . they were amazed at the documents.
Q. Now, at the same time contemporaneously, a set of these documents we know
wound up at the FDA.
Scruggs: That's right.
Q. And then shortly thereafter someone from the FDA apparently supplied them
to The New York Times.
Scruggs: You know, I never did know how The New York Times obtained
them. But I would imagine that the genesis of all that was through Waxman's
Q. According to Stan Glantz, then a Mr. Butts sends him a set of
Scruggs: That's right.
Q. Are you Mr. Butts' father.
Scruggs: No, I'm not. I'm not Mr. Butts. Nor is Mike Moore. I may be
subject to a paternity suit. But I am not Mr. Butts. Did not, uh. . . The
only agency that we gave those documents to were - were the Congress --
Congressman Waxman. Later we gave copies to the Justice Department.
Q. And the FDA.
Scruggs: And the FDA.
Q. Why were these documents so important?
Scruggs: Because they showed the depth of the tobacco industries
research to the pharmacological effects of nicotine. They showed the elaborate
system that the tobacco industry's lawyers had set up to shield these documents
from public view, abusing the attorney client privilege. They showed that the
tobacco industry itself considered nicotine to be an addictive drug and that
they were in the business of selling nicotine an addictive drug through the
very words of one of their principle scientists and attorneys back in 1963.
Those sorts of revelations, uh, were especially important to the Food and Drug
Administration because the tobacco industry had denied that nicotine was. . .
that cigarettes were being sold for the nicotine content. They were claiming,
of course, if you remember, that nicotine was just a component of taste. And
that it was just simply something that went along with the cigarette. When in
fact, these documents showed the depths to which they had researched the
pharmacological effects of nicotine.
Q. So, now you're at first what many people called hopeless lawsuit, had a
Scruggs: That's right. Now, the documents, you'll recall. We didn't
file the lawsuit until about a month later. But at the time we got the
Q. And somehow through your delivering them to Washington, they go to Stan
Glantz and they wind up on the Internet.
Scruggs: That's right. That's right.
Q. And eventually, they do become admissible.
Scruggs: Well, we were not sorry to see that happen.
Q. Now, fast forward a little over a year, and you wind up with a live
witness to go with the documents. Who was the witness, and why was he so
Scruggs: The witness was, Dr. Jeffrey Wigand who was the vice president
in charge of research and development for the same company for Brown &
Williamson Tobacco Company. Uh, we had searched in vain for about a year or
more, even longer than that because we first met Jeff Wigand, I think, in
October 1996, 1995.
Scruggs: Prior to that the litigation had been going on for a year and a
half at that time. And we had been researching it for probably two and a half
years. We had searched in vain for a tobacco industry mole. Someone who was
in the know, in tobacco, who would tell us what really went on inside that
industry. There was no one out there who could speak from an insider's
perspective. We had no one. There wasn't anyone that would do it.
He was the one person who had come forward, who - who came forward and talked
about what really went on inside tobacco.
Q. What makes Wigand so important?
Scruggs: Jeff Wigand was able to bring the documents to life.
He could tell things that were not in the documents. The genesis of the
documents. What led to various studies. Strangely enough, many of the
documents he had not ever seen before and was amazed himself when he saw them.
As the Director of Research, the Vice President in charge of Brown &
Williamson's research, many of these documents had been secreted even from him.
So he was amazed himself when he saw some of the research that had gone on in
the company that he was not even allowed to look at. Or not made privy to.
He also, of course, knew about things that had gone in Brown & Williamson
subsequent to the date of most of these documents. These documents ended
sometime, I think, in the late 1980s. Wigand was there up through about
So things that went on under Wigand's purview, international conferences he
attended of other tobacco scientists within his company add greatly to the
information we learned from the documents. Especially about nicotine and
Q. You bought Merrell Williams a boat. You bought him a house. Jeffrey
Wigand, you paid his expenses, flew him around in your plane. Got him a
lawyer. Sounds like you are on the edge there, ethically.
Scruggs: Some have said that, but I disagree. I think what we did was
to grant a safe harbor for those who were willing to risk whatever they were
risking. Intimidation and threats from the tobacco industry. We were willing
to grant a safe harbor for those who were willing to step up and tell the truth
about the industry.
I helped Merrell Williams. I didn't buy him these things. These were, in
essence, loans that I made to him and he has, at the time, agreed to repay me
one day for that. And I hope that he will. I trust that he will. I can
understand how it might look like it was some sort of a payoff, but it
Scruggs: We both represented Jeff Wigand in defending him against Brown
& Williamson and we found lawyers in Kentucky and paid them to defend him
against Brown & Williamson.
Q. I guess the question is, with Merrell Williams, you knew that he did not
come by these documents through a legal process. He walked out the door with
Scruggs: I disagree with that.
Q. Well it made a whole bunch of other people real nervous. I mean people
who are dedicated anti-tobacco activists wouldn't even go near him.
Scruggs: That is true. I don't think you have a right to conspire
against the public health and then cry foul when someone takes the documents
that show that you have done that and make them public. Especially when you
turn them over to law enforcement officials or the Congress of the United
I don't see... I think you almost have an obligation to do that. To, when you
catch someone in the process of committing a crime or a fraud on the public
health and you don't make that public, I think that is the crime. And so that
what Merrell Williams did, regardless of whatever his motives were, and what we
did was, in our minds then and now, a civic duty. A civic responsibility.
Q. But you had some great risk involved in there. Once the tobacco
industry, once Brown & Williamson found out, they sued you.
Scruggs: They did.
Q. They had investigators after you.
Scruggs: They did. They followed us, they followed me. They put me
under surveillance, did the same to my family. Sued us in federal court. Sued
me. Sued Merrell. Sued any other lawyer, had a long list of John Doe
defendants who had seen or had participated in turning these documents over.
Presumably Mike Moore. And unleashed more or less a smear campaign of their
own that we were paying for stolen documents is the way they spun that. Even
though we turned the documents over, as we were compelled to do, to the proper
Q. And once you facilitated, let's put it that way, Jeffrey Wigand giving
testimony in your case.
Scruggs: That is right.
Q. What... He did that at some risk.
Scruggs: At great risk to Jeff. They sued him, of course. They sued a
number of news organizations in connection with Williams and threatened to in
Wigand's case, to try to intimidate everyone into being silent.
It was great risk to Jeff. He was, he was a school teacher at a public high
school in Louisville, Kentucky, having gone from making hundreds of thousands
of dollars a year to making what a school teacher makes in a public school
system. They unleashed an unprecedented smear campaign against him. They
hired investigative firms in the world to go into every aspect of his past.
Drag out every, every piece of paper or transaction that Jeff Wigand had ever
conducted to try to put a false light on it and on him.
They tried to show that he was a mental case, that he was a wife beater, that
he was a shoplifter. I mean they came in with all sorts of allegations to
actually smear him.
Q. Let me take you back to, let's say, November of 1995 when Jeff Wigand
testifies. He is under possible threat of arrest in Kentucky.
Q. And you are being sued. Did you ever worry about that was going
Scruggs: Sure. But when you are in the middle of combat like that with
people like we were fighting, all your thoughts are to whip--to beating them.
We were going to beat them, no matter what the cost.
I mean it was one of these things that becomes a cause, a crusade. You are
inspired to do it, regardless of the risk. You feel that there is so much
justice in the cause that you are willing to take those sorts of risks to get
what you consider to be a proper result.
Obviously Jeff Wigand felt that. Obviously Merrell Williams felt it. And all
of the lawyers an the Attorney General felt that that's what, we were on a
Q. Didn't your wife, didn't your brother-in-law, didn't somebody come to you
and say, what are you doing?
Scruggs: No. My wife was incredibly supportive throughout this. My
brother-in-law had nothing to say or do about this. We didn't discuss it.
Q. But he did encourage you, at one point, to get into discussions with the
Scruggs: Actually that is, it was the other way around. After the first
Liggett settlement, this would have been in April of 1996, I read in the
newspaper where the, where Steve Goldstone from. the CEO of R. J. Reynolds,
when asked would R. J. Reynolds ever settle, like Liggett just did, responded,
"We would be interested in a comprehensive resolution but not a piecemeal
series of settlements."
It dawned on me then that there may be room to open up a dialogue to resolve
Q. Were the stakes now high enough so neither side could afford to lose.
Scruggs: The stakes were getting up to the point where neither side
could afford to lose. And this was the first signal, or overture from the
industry proper, not just a dissident like LeBow, but from a mainstream large
tobacco industry, R. J. Reynolds, one of the target defendants in the case,
that they were willing to consider a compromise.
I called Mike Moore. I said, "Mike I have got an idea that if, that I'd like
to call Trent and see if he would be willing to try to broker a meeting with
the industry, based on what Feldstone had said in the press." Mike said,
"Okay, give it a try."
So I called Trent and I said, "Trent, you haven't been involved in any of this.
You are probably considered to be tobacco friendly by the tobacco industry.
You are someone that they would probably trust. You are someone that I would
trust. Would you like to... Would you consider trying to set up a meeting to
see if anything can be worked out on a national basis?"
Q. You are claiming that your main motivation here was the public health,
doing something good and through all of this your brother-in-law is the
majority leader of the Senate, one of the most powerful Republicans in the
United States. And you never went to him? You never talked to him. And he
never talked to you? You are in the headlines every day, you are killing his
Scruggs: At the time, in early 1996, he was not the majority leader. In
fact I think at the time he was not even the assistant majority leader. He was
just a United States Senator. Not that I am belittling being a United States
Q. There were risks involved here that weren't normal to a regular law suit.
This wasn't just a risk to the overhead of your law office by putting too much
money into a case. What were the risks to you back then?
Scruggs: There was a risk of, I think, public humiliation was the worst
one. If you are unsuccessful after taking on a task like this. Financial
ruin. Discreditation, professionally. The wear and tear it puts on your
family to read unfavorable things in the newspaper every day when you are not
used to--not only not used to publicity, you are not used to national adverse
publicity. Those sorts of things.
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