Monday, PM: Bernick v. Brandt (no AM session)

September 27, 2004 2:45 pm by Gene Borio

Dr. Allan Brandt was sworn in. Brandt was dressed in a dark suit and dark tie; he comes off as quite intelligent and very composed– like a more handsome but certainly less theatrical Richard Dreyfuss. He is extremely knowledgeable about his subject. His Direct Testimony was powerful and clear, detailing development of a consensus in the medical world that smoking caused lung cancer. He also detailed the industry’s reaction to this developing consensus in 1954, ie, the formation of the TIRC (later, CTR).

To open the session DOJ brought Brandt through an explanation of a diagram of 3 circles overlapping in the center, which showed how 3 separate disciplines needed to converge to resolve questions about the causation of a disease.

1. Empirical Observation

2. Population Studies

3. Lab Investigations.

Brandt discussed the historical development of this triad as an essential of modern medical methodology, from the discovery of how to cure/prevent scurvy, through John Snow’s shackling of London’s Broad St. pump to stop cholera through the science of smoking 1950-64.

B&W’s Bernick began his cross by making a point of Brandt’s lack of a medical degree, saying (paraphrasing), “As a peer, you are in no position whatsoever to review the judgements of the scientists who did the investigations.”

Then Bernick went after the historical aspects of Brandt’s testimony, citing what he called the “First Principles of Traditional Historical Scholarship.” He cited two principles:

1. Accuracy is important
2. And it is also important to be as comprehensive as possible in gathering and reviewing the evidence.

Bernick said that historical context is very important and that it is important to be scrupulous –scrupulous!–in finding out what that context was.

Bernick addressed a Brandt article which said that the discipline of history today is less concerned with facts–names, dates, places–than with analysis–exactly how and why events occurred in historical context.

Brandt had to dance a bit to get Bernick away from a “So facts don’t matter to you,” accusation. Bernick had to explain: of course you have to start from the facts, and those have to be accurate, but trends in the field today are toward analysis. At once point Judge Kessler asked, “Can you analyze an event if your facts are wrong?”

Bernick introduced a Brandt article, “Selling Short on Tobacco — Let the Trials Begin,” in which Brandt argued against the 1997 Congressional settlement attempt because it would stop litigation–and litigation, Brandt felt, led to education and information about the industry.

Bernick brought up a huge whiteboard in order to draw a timeline illustrating various opinions about tobacco 1950-64. Bernick focused on Brandt’s testimony that by late 1953 researchers had “come to a categorical understanding of the link between smoking and lung cancer.”

(Dialogue paraphrased:)

BERNICK: Categorical. My dictionary says categorical means “utterly without exception or qualification; absolute.”

BRANDT: I actually looked the word up in my own dictionary, also, and it gave a different meaning–more like fundamental, or basic. So yes, I do stand by my testimony.

Then Bernick produced a panoply of scientific doubt about the smoking and lung cancer link–from Morton Levin through Hueper, Sidowsky, Wynder, Hammond, Burney, the New England Journal of Medicine and the WHO. He also quoted Robins’ “Textbook of Pathology,” which stated there was “no definitive relationship.” (One wonders how many textbooks defense pored through, but only referenced one.)

We heard a few saying the “most reasonable interpretation” would lead one to suspect smoking causes cancer, but, Bernick made the point no one said “categorically” smoking causes lung cancer until the 1962 Royal College of Physicians Report and in the US, the 1964 SG Report.

Bernick emphasized that, because there was significant dissent on the Scientific Advisory Board, SG Burney’s 1959 JAMA article and earlier testimony to Congress made use of what were called by some, “weasel words” about smoking’s link, ie, “smoking is etiologically implicated as a cause of lung cancer.” According to Robins’ memoir of the period and Maurine Neuberger’s book, there was considerable pressure on Burney to be more emphatic in the 1959 report, but that he stuck with the “weasel words”–because there was still dissent within the SG’s office itself.

Bernick made the point that Robins was a scientist, and he was there.

Bernick introduced a book by Michael Shimkin, wherein Shimkin claimed many at the NCI also disagreed with the idea a smoking and lung cancer link had been proven. Shimkin, Bernick averred, said there was NO consensus at NCI. And Shimkin is an MD. And Shimkin was there. And that’s what he said.

Bernick said (paraphrasing), NONE of this evidence was quoted in your Direct Testimony, was it?

The real problem, Bernick said, was there was a dispute in the medical field at that time, a battle raging between disciplines–some felt epidemiology alone could provide enough reason to take action; while others felt that laboratory evidence had to confirm what the epidemiology indicated before action.

In all 3 areas Brandt had introduced at the beginning (Empirical Observation, Population Studies, Lab Investigations), there were people, Bernick said — people not connected with the tobacco industry — who did not think causation was proven. “Are you here to tell us that their opinions were unreasonable?”

(By the time Bernick got to his “unreasonable” questions–there were 3 or 4 so far–Brandt would say, no, I wouldn’t call them unreasonable.)

Then Bernick addressed what the industry did in response to the medical news, especially in the formation of TIRC/CTR.

Bernick cited the pre-1954 industry support of the Damon Runyon Cancer Fund, and established that the industry did not determine how the money was spent. He said that in 1953, the NEJM called for the tobacco industry to fund independent research.

Bernick cited the H&K documents concerning the Dec. 15, 1954 meeting and Dec. 24 recommendations, emphasizing that the industry –even before H&K was involved–called for “good science” along with PR.

Specifically, and somewhat shockingly, Bernick cited the “BACKGROUND MATERIAL ON THE CIGARETTE INDUSTRY CLIENT” document.

He used it to show the industry’s _belief_ at the meeting: that the “industry is strongly convinced that there is no sound scientific basis for the charges that have been made,” and that “The companies replied that they had no desire to set up a smoke screen or “front” type of organization.”

This wasn’t PR, Bernick said, these were comments the executives made among themselves, in private.

Bernick: “There is no discussion of this document is in your testimony, correct?”

Yet this document is famous in tobacco control circles for quite different quotes, ie, that the cigarette executives, “feel that they should sponsor a public relations campaign which is positive in nature and is entirely “pro-cigarettes.” . . .

“They are also emphatic in saying that the entire activity is a long-term, continuing program, since they feel that the problem is one of promoting cigarettes and protecting them from these and other attacks that may be expected in the future.

See, This document is not cited by Brandt.

Brandt’s testimony sharply and effectively criticized Clarence C. Little, the first head of the TIRC. Bernick brought opposing opinions of Little–people with medical degrees.

“The New England Journal of Medicine said ‘Both debaters (Cook and Wynder) are dedicated and sincere.’ And the New England Journal of Medicine was there, and they were experts.”

Bernick addressed the issue of TIRC grants, and whether they really went to discover the link between smoking and cancer.

He named the members of the TIRC’s Scientific Advisory Board. “Every one of them has more qualifications than you.”

Cross examination continues tomorrow at 9:30.


1. Bernick’s billowing whiteboards.

a. Earlier today, we learned that Judge Kessler could not see the lower 1/3 of anything on the easel because the witness stand’s monitor was in her way. Then Bernick brought up a series of giant foam-cored whiteboards to draw his timelines on, and set one up on the easel.

The whiteboard was very large, true, with lots of room, but Mr. Bernick is rather small, and could only reach to within about a foot of the top.

So we had the situation where this gigantic whiteboard could really only be used in the middle. (Some advertising graphics mavens only wish they had so much white space!) Mr. Bernick did fine for all that. I couldn’t read what he wrote, but I’m sure the Judge could.

b. At one point in the cross, all the whiteboards were becoming something of a burden for Mr. Bernick to position onto the easel. He finally got one settled, and sort of jokingly (I think) complained, “All these big men (at the nearby DOJ table), and no one comes up to help me.”

Judge Kessler replied, “Oh, I think you can take care of yourself just fine, Mr. Bernick.”

2. Brandt, after some confusion, finally got his own copy of the Shimkin paper to look at. At one point he said, “I actually used this paper in my Direct Testimony. I see you’ve taken certain quotes out, but not others . . . for example, . . . ”

He was interrupted by Judge Kessler, who said (paraphrasing): “I know this might _sound_ like an academic seminar, Mr. Brandt, but it is not. Just answer the questions.”

3. It’s very hard to accept that DOJ, after being told about the absence of John Hill in the Dec. 14th meeting document, would allow the error to stand, and not warn Brandt to change his testimony. Brandt was left out to dry here. Bernick did not fail to take advantage of this slip in his attempts to paint Brandt as a mistake-ridden, unqualified person with an agenda.

5 Responses to “Monday, PM: Bernick v. Brandt (no AM session)”

  1. krueger Says:

    Bernick does his job well.

    1. I put it that anyone who studies this industry would come to a similar conclusion, much as anyone who studied the Third Reich would conclude that force was the only way to stop it. Twisting that to appear as bias and lack of objectivity, well, I give Bernick full credit.

    2. Bernick attacks Brandt for not having a medical degree. If Brandt had a medical degree, Bernick would attack him for not having a degree in history.
    There’s always some credential the witness doesn’t have.

    3. Bernick can pick nits with the best of them: dates, categorical or not, statements, where; he’s good. I’d love to ask him, given that his clients didn’t publicly acknowledge that smoking causes lung cancer until 2001 or so, what evidence convinced them that had been lacking up until that time?

  2. tobacco observer Says:

    >>”2. Bernick attacks Brandt for not having a medical degree. If Brandt had a medical degree, Bernick would attack him for not having a degree in history.
    There’s always some credential the witness doesn’t have.”

    Yes, but that’s not relevant. Either a witness is properly credentialled to render an opinion as an expert in a certain area, or they are not. If the witnesses’ credentials don’t match the content of their testimony, that’s a legitimate point of criticism. If someone who is obviously better credentialled in a particular area disagrees with the supposed expert’s opinions, that’s relevant too. In this case Brandt held himself out as an expert intepreter of medical and scientific research by pointing to certain studies and concluding there was a scientific consensus. Considering that he doesn’t have the credentials that many of his medical historian peers do (ie a scientific or medical background) the criticism isn’t misplaced, particularly given the complex nature of the research involved.

    The fact is, though, that the criticism wasn’t really the point of the exercise, it was just a set-up. Had Brandt presented a more comprehensive case, he could have blown easily past the credential-baiting. Bernick tripped him up not on the credentials per se, but by showing that Brandt’s testimony pointedly omitted historical facts that contradicted his position. Brandt’s job was to render an opinion; Bernick’s was to show exactly why it wasn’t a very valuable one.

    >>3. Bernick can pick nits with the best of them: dates, categorical or not, statements, where; he’s good. I’d love to ask him, given that his clients didn’t publicly acknowledge that smoking causes lung cancer until 2001 or so, what evidence convinced them that had been lacking up until that time?

    On a not-insignificant level tobacco has met their legal obligation and “acknowledged” that smoking can cause cancer on the side of every pack they have sold since 1964. This is an issue that’s going to come up again with regards to causality.

    Maybe the DOJ will get a chance to ask that question to a gaggle of tobacco executives later in the trial (and that would be fun to watch, I admit) but I doubt they will. As part of their thesis, the DOJ is alleging a likelihood of further fraud. If the DOJ actually acknowledges that tobacco has conceded the risks of smoking, they directly undermine their own case.

    I’ll bet if you got in a room with the tobacco executives, and asked them that every one of them would concede privately that one of the main reasons they publically admitted the risks of smoking was to defuse legal criticism. Part of it, no doubt, was to try to avoid appearing like reactionary laughingstocks. But so what? Even if they did the “right” thing for a slimy reason and later than they should have, they still did it. They can’t undo that now, and the DOJ is going to have a heck of a hard time proving that they will.

  3. krueger Says:

    “tobacco has … ‘acknowledged’ that smoking can cause cancer on the side of every pack they have sold since 1964″


    Pack warning labels didn’t appear until 1966.

    Cancer wasn’t mentioned in the warning until 1984.

    “Cause” didn’t appear until 1984 either.

    In 1966 the warning was an anemic “Cigarette Smoking May Be Hazardous to Youth Health”.

    In 1970 it was changed to a gentle “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health”. No cause, no cancer.

    And in 2004 the pack warning still isn’t the industry ‘acnowledging’ anything. The warning is attributed to the Surgeon General. Not the industry.

    When criticizing Bernick’s credentials, it’s helpful if you get your history right.

    Public health analysis finds that pack warning labels benefited the industry more than the public. They were weak, ineffective; they fell far from an accurate picture of what the product does to the customer and to those nearest the customer; they gave the industry teflon in court; and they pre-empted state and local measures on smoking and health:

    “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.”

    This was exactly what the industry wanted. Not to inform. Not to disclose what it was saying internally about its product.

    If the industry had chosen to put an accurate warning on the pack, reflecting what it knew at the time — it wouldn’t be on trial right now.

  4. tobacco observer Says:

    If the industry had chosen to put an accurate warning on the pack, reflecting what it knew at the time – it wouldn’t be on trial right now.

    That’s absurd.

    Choice has nothing to do with this. The tobacco companies are simply not permitted to put whatever they want to on the sides of cigarette packs.

    The labelling of cigarettes is federally pre-empted by FTC regulation under the power of Federal law. Tobacco may NOT change the mandated warnings in any way, nor may they add additional ones. If the warning were inadequate (itself a dubious claim) it was the job of the FTC and Congress to mandate better ones, not tobacco. Furthermore, the US Supreme Court ruled in the Cipollone case that warning labels pre-empted all liability from tobacco with regards to the health consequences of smoking, except under highly specific circumstances.

    And what is it that the warning labels were supposed to say, that they didn’t say? Who doesn’t already know that smoking causes disease?

    Is a five paragraph laundry list listing every possible health hazard attributable to smoking really better than the simple blanket claim “smoking is hazardous to your health”? Would anyone even look at such fine print? Its not like the risks of smoking are such a big secret. . .anyone who wants to know what they are can find them easily, at will. There are health warnings right on the pack; either you heed them and choose not to smoke, or you don’t and do.

    Maybe we need labels on the sides of automobiles instructing drivers not to crash them into pedestrians or the sides of buildings? Or maybe we need labels on the sides of beer bottles indicating the the contents are addictive, carcinogenic, and contribute to accidents? At what point are we going to give adults the ability to make their own choice and take responsibility for their own actions?

  5. krueger Says:

    If we’re for taking responsibility for actions, doesn’t this apply to Philip Morris and RJR?

    In fact, that’s what this trial is about. DoJ says industry actions led to deception, disease, and death, and aims to hold the industry responsible.

    It’s silly to pretend the industry was held hostage by the government and gosh it wanted to put accurate warnings on the pack but the government didn’t let it. That didn’t happen.

    What happened: a weak pre-emptive standard, developed under heavy industry lobbying, ended up exempting the industry from providing any real warning, any accurate statement of the risk of its product.

    Do automobiles kill half their best customers?

    Does beer?

    Is either the leading cause of cancer death in America?

    Has either killed 14 million Americans since 1964?

    Of course not.

    Has any cigarette pack warning informed that those facts are true for tobacco?

    Of course not.

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