Tobacco On Trial

Defense attorney Dan Webb today:

1. Tried to establish that the industry for decades has been doing the best it could, in the absence of guidelines from the government or the public health community, to make cigarettes safer for consumers.

2. Began to chip away at the idea of a “Gentlemen’s Agreement” (an important leg underpinning DOJ’s case).

3. Tried to establish Farone’s testimony here and in other trials as the result of a vendetta begun when he was fired in 1984.

4. Tried (but failed) to introduce into the trial record Philip Morris’ current support of FDA legislation(!)

The Gentlemen’s Agreement

Farone’s Direct Testimony reads,

“Defendants’ product research and development activities reflect an agreement not to perform certain biological research on commercially marketed products in their domestic facilities. . . As a result of this agreement, Defendants failed to perform meaningful tests on their as marketed products indicating biochemical differences in toxicity that have a bearing on the safety of their products.”

Webb asked Farone how he knew there was a GA. Farone said he’d been told by his superiors and co-workers–Osdene, Seligman, Eichorn, Hausermann and others–and that decisions were made and certain projects were squelched because of it.

Webb asked if he, Farone, was actually there when this supposed agreement was made. What about any of the people who told him about it? Were they there?

Webb tried to show that the companies, at least by a 1954 Kent micronite filter ad claiming the filter was “safer,” did indeed market based on health claims.

Farone called it “puffery.” Farone said, (paraphrasing): “There’s no data presented in the ad, no scientific basis for the claims. . . I know from my experience with Lever–you can say you have the ‘best’ soap out there, and that’s all right, that’s just puffery. But if you say you have a ‘better’ product than some other–FTC demands you’d better have some scientific data to back that up. The industry allowed puffery–that’s fine. But NOT science.”

What’s the Latin for “tar?”

Webb cited Farone’s ongoing testimony against the industry in trials as part of a vendetta against Philip Morris. Webb attempted to establish that Farone was “upset and angry” at being terminated in 1984. (Farone would admit only to “upset.”)

Farone had a difficult last few months at Philip Morris. At one point he was told he would be promoted to Vice President of Research and Development of Philip Morris International. But 6 months later, and after the filing of an EEOC (equal opportunity) lawsuit by his wife–also a Philip Morris employee–his very existence at Philip Morris was in jeopardy.

One factor that played into the circumstances surrounding Farone’s firing was the apparently close friendship between Farone and his boss (and current VP), Dr. Max Hausermann. The two scientists had a habit of talking to one another in Latin.

After a meeting in which Farone was advised by a Philip Morris personnel officer that he would be terminated, he said to Hausermann, “Alea jacta est”– a commonly used version of Caesar’s “The die is cast.”

Webb tried to characterize the phrase as meaning — in popular usage, Webb said — “going to war.” (It means making an irrevocable, portentous decision–in Caesar’s case, defying the law against crossing the Rubicon with a standing army.) Farone said that, as a military historian, if he had wanted to mean going to war, he would have used another quote. I missed the reference, but I believe it was from a World War II General.)

Webb said, “You did declare war on Philip Morris.” He cited Farone’s 60 depositions and 25 times Farone has testified in trials. How much are you being paid now, Webb asked. Farone said his usual consulting fee is $150/hour, and testimonies are $250/hour. Farone said he made about $25,000 a year in this kind of work. He said it started, not because of a vendetta, but because the FDA had asked him first, and then the Attorneys General. He felt it important to respond, considering the seriousness of the issue.

Reducing toxicity

Much of Farone’s testimony was devoted to the modern technology of reducing toxic deliveries, specifically:

Reconstituted tobacco
Filtration
Ventilation hold technology
Expanded tobacco
Paper porosity
Reduced Temperature
Unconventional Cigarettes

Webb introduced an Institutes of Medicine report that, in one paragraph, asserted it was it was currently impossible to make scientifically reliable quantitative judgements about the actual harm from cigarettes.

Farone disagreed, and though Webb tried to characterize Farone as thinking he knew more that the “distinguished scientists at the IOM,” Farone successfully argued that he was disagreeing not with the statement in general. “I disagree with your parsing of it.”

Farone was pretty good at scanning a highlighted document and finding phrases outside the highlighting that seemed to be at odds with Webb’s characterization of the document.

A note on semantics:

In its complaint, DOJ basically uses the plural variant of the phrase “gentlemen’s agreement,” but occasionally uses the singular, “GentleMAN’s Agreement.” The internal documents DOJ cites refer to the plural. The 1947 Gregory Peck movie about anti-semitism at a Greenwich, CT, country club uses the singular.

Memorable moments.

1. Webb asked Farone if the Federal Government or anyone in the public health field ever proposed or published anything to set out the precise battery of tests to be done before a company could communicate with the American public about a safer cigarette. The IOM report recommended the establishment of a panel of experts to determine specific tests of toxicity and details of a testing regimen, Webb said.

Then Webb said, (paraphrasing): “Are you aware that Philip Morris is currently urging the adoption of pending legislation for the FDA to develop guidelines to tell the tobacco companies what a safer cigarette is, and what they may communicate — ?” I quickly looked over at the other members of the Joint Defense team–the lawyers _not_ from Philip Morris — to see their reaction, but I presume they knew this was coming–no one jumped.

But Judge Kessler did. “Oh, no!” she said, cutting Webb off. “We are NOT going there. That goes WAY BEYOND . . . That bill is, from what I read in the Washington Post this morning, in committee right now. And we are not going there.”

2. Shortly after returning from the morning break, in the middle of one of Webb’s questions, Judge Kessler asked in the loudest voice she’s ever used, “DO I SEE SOMEONE TALKING ON A CELL PHONE???” The man in the visitor’s gallery quickly pulled the phone from his ear, and, pocketing it, said meekly, “Not talking, your honor.” (Just listening, I guess.)

Webb said, “Whew. I though I’d said something wrong.”

This entry was posted on Thursday, October 7th, 2004 at 3:51 am and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.