Thursday, PM session: Bernick vs. Kessler

September 23, 2004 8:07 pm by Gene Borio

In all, Bernick attempted to establish that Kessler did not have enough scientific knowledge to judge much about nicotine, that his urge to regulate cigarettes as addictive delivery devices came not from science but from his own personal agenda, which included sheer status-seeking.

In the afternoon:

Bernick determined that DK did not select the documents in his presentation, DOJ did.

Bernick said, You’re not an expert in nicotine addiction, right? or nicotine pharmacology. Or compensatory behavior. You have no medical training in nicotine pharmacology.

DK said the FDA used experts for these matters.

Bernick said, your only source of education on this was your work at FDA.

Bernick attacked a section of the FDA’s Final Report, specifically FDA’s chart of “Sales-Weighted Nicotine and Tar Levels in Smokers as a percentage of 1992 levels.” These were average levels for ALL brands, expressed as 2 lines, one for tar, one for nicotine.

The chart covered 1982-91, and showed T/N levels quite close to each other in ‘82, but diverging sharply over the decade, with nicotine levels rising, and tar levels dropping slightly.

Bernick pressed Kessler for the origin of the document, and specifically how the determination was made to use 1982 as a base, rather than some other date.

DK said that they’d asked FTC for the data, and FTC came back with data from 1982, but no earlier.

Bernick referenced the 1989 Surgeon General’s Report, which also featured T/N Sales-Weighted data, but this time from 1955-85.

Bernick cleverly combined the 2 graphs to show that if you use 1982 as your base point you maximize the Tar/Nicotine separation- more than if you chose as a base any other year before or since.

DK strongly objected to the lack of “data points” in the 89 SGR graph. He also said late 70s/early 80s seemed a good time to measure this, as it was the beginning of the ultra-light phenomena, when such cigarettes could have as much as 20% greater nicotine.

[With all this chart action, and everyone trying to figure out which line anyone was talking about, Judge Kessler finally had had enough, and asked lawyers on both sides, “DOESN’T ANYONE HAVE ONE OF THOSE LITTLE POINTER THINGS??” At least one person did. Surprising omission from this caliber of people. I guess no one’s in sales.]

Bernick asked DK about “Macon,” the B&W employe who talked about their blending, and what Macon had told him about tar/nicotine blending.

Bernick asked DK about Wigand, and what Wigand had told him. Did he tell you the circumstances of his dismissal? Did he tell you he wanted a job at the FDA? Did he tell you B&W put rat poison (ie, coumarin) in pipe tobacco? Did he tell you B&W added acetaldehyde? Did he tell you his sworn testimony–that he was not aware of any fraud?


On redirect by Eubanks: (Bernick tried to object several times during the redirect, saying “I already asked such-and-such a question.”)

Eubanks asked about the significance of the lack of data points in the 1989 SGR’s 1955-85 graph. DK said if you can’t specifically see the exact point at which a determination has been made, you basically just have a line, and that is not scientific, close to worthless. How many points have been used to create the line–2, 5, 10? You can’t verify anything.

She pointed out the footnoted source of the SGR 1955-85 data, and asked who Wakeham, the source, was. DK said a VP at Philip Morris.

Eubanks verified a point Bernick had asked about, ie, what were the two most important things needed for FDA to regulate cigarettes.

DK said,

1. Does nicotine affect the body.

2. Does the company have that intent.

These two things were enough for the FDA to assert jurisdiction.

Eubanks asked Kessler who Russell was –he had provided one of Bernick’s exhibits on Tar/Nicotine ratios. DK said he was a British psychologist at the Addiction Research Center. He had written in 1971 on “tobacco dependence” and posited that people may need nicotine. (He later invented nicotine gum.) His testimony was presented as part of a seeming scientific/health community movement to look into altering tar/nicotine levels to produce a safer cigarette.

“Did people believe him?” Eubanks asked.

DK: No.

She asked who Addison (”We are in the business of selling nicotine”) Yeaman was.

DK: General Counsel B&W, maybe he was at CTR also.

DK then made a very strong point: (paraphrase) “When the Defendants testified under oath during the FDA hearings, did they ever say, ‘The British knew nicotine was addictive all through the 60s?’”

DK: “The Opposite” He said they denied the addiction of nicotine.

Eubanks asked if the FDA was concerned with the differences between free, pronated or extractable nicotine, the point on which Bernick had so excoriated Kessler.

DK: No, the issue was the manipulation of nicotine.

A document was produced that discussed “impact.” It read, “impact is an involuntary reflex which is somehow related to the pharmacology of nicotine in its unpronated form.” I believe this document has been produced for the first time by the DOJ. An objection to the document was sustained, as it seemed to be produced then and there for DK to comment on. It was also impossible to see the full context of the quote.


Finally, Bernick addressed Judge Kessler and said that a number of the defendant companies now had fundamental questions on whether DK’s responses were appropriate, and they were planning to submit a short memo of objections in order to strike his testimony altogether.

Kessler said there was no reason for this sort of action. Any intention to discredit or disbelieve the witness may be done at final argument.

Memorable moments:

1. Bernick asking DK at the very opening of testimony,

BERNICK: “Are you any relation to Judge Kessler.”

DK: “Not that I know of.”

2. Bernick to DK (paraphrase): DO YOU HAVE ANY IDEA WHAT THAT MEANS? DO YOU KNOW WHAT EXTRACTABLE NICOTINE IS? Is all that you’re here to tell us about simply what you have read in the documents?

3. Bernick brought up an incident DK recounted this in his book, “A Question of Intent.” DK said he well remembered Clinton’s reaction to reading the JAMA report, among other items: “I want to kill them” (the document writers), he said.

BERNICK: Did you tell him that that’s not part of your job description.


JUDGE KESSLER (jocularly): Sustained; We’re not testifying about killing anyone.

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