Tobacco On Trial

Max Eisenberg was president of the CIAR from its inception in 1988 until he signed its official notice of dissolution, filed in Delaware in December, 1999. I expected, I guess, someone large (”Max”), but Mr. Eisenberg was a bit small, seemingly fit. His face seemed a bit small for his body, and was shaped somewhat like a Ray Walston (”My Favorite Martian”) or even a Steve McQueen sans the charisma. His forehead sloped back more than usual, and his eyebrows drew in close to his eyes in the center, and flared up from there slightly. He had short straight brownish-gray hair, and wore a dark blue suit and red tie.

As he admitted to Defense counsel the next day, he was quite anxious. At times, his hands shook while holding documents. His suppressed anxiety seemed to have leached all personality out of him.

Gregg Schwind, another of the young, dark-haired and clean-cut DOJ lawyers who only look a year or two out of law school, asked Mr. Eisenberg if he still worked in the same building CIAR used to be in. Yes, Mr. Eisenberg replied. Are there still CIAR documents there? No, Mr. Eisenberg said, they “went to a repository in Washington.”

Mr. Schwind began his examination proper by showing Mr. Eisenberg an April 25, 1988 memo from Tobacco Institute President Samuel Chilcote to Philip Morris’ Thomas Osdene. The memo conceptualized the ETS fight as a “battlefield” where “the ammunition is science,” and said that CIAR was to provide the ammunition for the fight.

Mr. Schwind asked if Osdene, who hired Mr. Eisenberg as president, had ever told him the CIAR’s purpose was to provide ammunition. No, Mr. Eisenberg said (paraphrasing):

I would not have taken the job. That was not how I saw the mission of CIAR. . . What the industry wanted was not so important as how I conducted myself during the employment.

Schwind spent a lot of time on the concept of an “industry position” on ETS. Mr. Eisenberg claims he never knew of one. He said some members of the board would express positions individually, but not collectively, and there was certainly no formal “industry position.”

At one point, Mr. Eisenberg said, “Our research agenda mimiced important questions raised by government agencies.” Mr. Schwind challenged him on this, and asked him to name one Federal Agency which held the position that SHS has not been proven to cause any adverse health effects. He had to ask the question in several ways, and there was an objection that Judge Kessler overruled.

There was some degree of confusion here, and finally Judge Kessler asked Mr. Eisenberg herself somewhat impatiently, “Can you name any agency?”

When the judge has to come in to ask you the question herself, you know you’re in trouble. For clarity, Mr. Schwind asked his full question again, and Mr. Eisenberg said, “No.”

Things were not going well for Mr. Eisenberg.

CIAR sent out a yearly “Request for Applications” to the scientific community. Mr. Schwind asked how applicants for CIAR projects would know of the CIAR’s tobacco funding from the RfA, which was the CIAR’s primary public document.

It seems, tobacco industry funding was denoted clearly–right there in “Appendix A.” And sure enough, Appendix A lists the Charter Members of CIAR: Philip Morris, RJR and Lorillard.

And how does that denote funding? Mr. Eisenberg said that clearly, the first page, second paragraph states the 3 classes of membership, and tells people to see Appendix A.

How would you characterize this kind of disclosure, compared to other organizations, Mr. Schwind asked. Would you call it prominent? No, Mr. Eisenberg said, but it’s appropriately disclosed for the research community.

Mr. Schwind discussed the “associate members,” 4 companies who, while without tobacco in their names, all had business with the Board of Directors’ companies. Mr. Eisenberg was asked, “Do you know what Universal is?” Mr. Eisenberg said he thought they had some involvement in tobacco.

“Universal is the world’s largest leaf dealer, you know that?”

Mr. Eisenberg professed he did not.

Also interesting in the RfA was the listing of the Board of Directors:

Thomas Osdene, Chairman, Ph.D.
Robert Pages, Ph.D.
Charles Green, Ph.D.
Gary Burger, Ph.D.
Alexander Spears, Ph.D.
Vello Norman, Ph.D.

Mr. Schwind asked whose idea it was to leave off the affiliations of the Board.

No draft of this document gave the affiliations of the Board of Directors, Mr. Schwind asked. That was so no one would know that Mr. Osdene worked for Philip Morris, right?

No, said Mr. Eisenberg, but they would know that he came from one of the charter members.

Uh oh, here comes Judge Kessler again.

“How would they know that?” she asked.

Because, Mr. Eisenberg said, the document states that the Board of Directors is made up of Charter Members. (You will recall that the Charter Members — Philip Morris, RJR and Lorillard–are listed as such in Appendix A.)

There was a very long silence.

Mr. Eisenberg said, look at the first page, where it talks about membership. You see that it says that regular members and associate members reported to the Board of Directors.

Mr. Schwind said, “It says nothing about Charter Members.”

Mr. Eisenberg said, he thought it was a given, and obvious that Charter members served on the board, because the document says that associate and regular members did NOT sit on the board.

Mr. Eisenberg seemed to be falling down a well.

Mr. Schwind brought up the RfA page that listed the Scientific Advisory Board.

Whose idea was it to INCLUDE the affiliations of the CIAR’s Scientific Advisory Board? he asked.

Mine, said Mr. Eisenberg

Uh oh, not Judge Kessler with another question!

“Don’t you think it strange that you include the affiliations of the SAB, but not the affiliations of the Board of Directors?”

Mr. Eisenberg said the target of the Request for Applications was the scientific community, and their interest would naturally be who their reviewers would be. He insisted the funding source was clearly disclosed, as was the role and affiliations of the Board of Directors.

“Aren’t the legitimate members of the scientific community concerned about their scientific independence? How would a scientist,” Judge Kessler asked, placing herself in such a scientist’s place, “worried about her independence, know that she was working for a tobacco company?”

Mr. Eisenberg said he didn’t think it important to a scientist if she were working with Lorillard or with RJR.

No, said Judge Kessler, but of SOME tobacco company?

Mr. Eisenberg said he thought that it was all very clear, and that it was common knowledge, that the Board of Directors consisted of the Charter Members. Plus it was clear by 1990 that the CIAR was supported by tobacco companies.

This was THE principal document, said Mr. Schwind, so if there was any knowledge CIAR was funded solely by tobacco companies, this was it?

Mr. Eisenberg said there were also newspaper accounts and hearings that mentioned CIAR and its funding.

Mr. Schwind introduced the July 12, 1990 issue of “Indoor Pollution News,” which contained an item on page 2 titled, “Center For indoor Air Research Offers Post-doctoral Fellowships.”

The final paragraph stated that:

“CIAR is funded by companies including industrial hygiene firms, consulting firms, chemical firms, tobacco companies, insurance firms, and hotel chains, Eisenberg said.” (http://tobaccodocuments.org/pm/2050765342-5372.html

Mr. Schwind introduced RfAs from various years which listed regular and associate firms. These included:

Hoechst Celanese
Mead Paper
DNV(Sp?) Services
Consolidated Safety
Meckler Engineers
Ecusta, Division of PH Glatfelter Company
International Paper
Quest Intonational Flavors, USA
Shorewood Packaging
Somerville Packaging Corp.
United Technologies Carrier Corp.
Universal Corporation

Mr. Schwind then took some pleasure in trying to see where various paper, packaging, flavor and other tobacco supplier companies that fit in with the Indoor Pollution News reference. He also identified outright tobacco companies without “tobacco” in their names, as well as companies which had done business with the tobacco industry. Mr. Eisenberg admitted that all such companies were recommended to him by one or another of the Board of Directors.

Mr. Schwind accused CIAR of keeping Hoechst and Mead listed even after they had dropped out, “just to make it look like there were more contributors than just the tobacco companies.”

Mr. Schwind then attempted to determine the relative philanthropic contributions of the member companies. The budget for 1996 showed the member companies contributed $36,000 out of a budget of $7.7 million–”less than one half of 1% of the total budget.”

You sort of felt sorry for Mr. Eisenberg and his feeble defenses.

This entry was posted on Wednesday, November 10th, 2004 at 9:58 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.