The Eisenberg Principle
November 15, 2004 3:46 am by Gene BorioCourtroom observers may have wondered where the sudden influx of new visitors came from Tuesday and Wednesday. Why, the American Public Health Association’s annual meeting was in town, of course, and public health professionals were dropping by in small groups to see the trial that may affect their profession for the next 50 years.
The convention was being held about a mile down 7th street, at the new, grandiose MCI Convention Center. As we walked down the carpeted, boulevard-wide hallways to the DOJ trial seminar, I couldn’t help but wonder where all the attendees were? It was well after dinnertime, so perhaps the 10,000 public health professionals were all out still trying to find a smokefree restaurant in the nation’s capital. All I can say is, good luck! [There actually is at least one 100% smokefree bar in DC–Marty’s, at 527 8th. by H St.]
The Eisenberg Principle I
You can find a study that was funded by the Board of Directors through CIAR; or you can find a study that was funded by the Board of Directors directly but only claimed it was funded through CIAR. But you can’t really find that study anywhere, or at least Mr. Eisenberg doesn’t remember it.
It seems unclear if some CIAR-acknowledged studies really were funded by CIAR, or if the Board–or one Board member’s company–could simply fund a project and say it was funded by CIAR — in order to hide industry involvement. This appeared to be a Rupp plan, according to one document. Yet, such a study would NOT be found in Mr. Eisenberg’s farewell recap of CIAR studies. So where exactly does the Liao study fit in? Ah, The Eisenberg Uncertainty Principle!
Mr. Schwind finished his examination Tuesday by bringing to Mr. Eisenberg’s attention a number of studies, seemingly sponsored by or through CIAR, that he didn’t recall, or didn’t recall the outside funding for. Covington and Burling’s John Rupp apparently was quite influential in finding studies he wanted sponsored by CIAR, and in finding funding directly from tobacco companies outside the CIAR budget and/or Mr. Eisenberg’s ken. These seemed to mostly be personal air quality monitoring studies involving Hazelton in the UK, the Liao Hong Kong study, and Latin American studies in Brazil and Chile.
If the Board funded the Liao study, as the South China Morning Post claimed, then either Mr. Eisenberg doesn’t remember it, or it was funded behind his back.
Mr. Schwind asked Mr. Eisenberg about his current position as president of Research Management Group LLC, which administers the Philip Morris External Research Program, which was established following the demise of the CIAR. Mr. Eisenberg held that Research Management Group is NOT a tobacco-industry-created entity. Everyone there is an independent contractor, with no benefits, only a straight rate–in Mr. Eisenberg’s case, $2,000/day. It seems high, I suppose–approximately $400,000 a year, but Mr. Eisenberg pointed out he gets no benefits, no vacation pay, no medical, nothing. Mr. Eisenberg’s 3 days of testimony will bring in $6,000.
Mr. Eisenberg’s Cross Examination
Mr. Wells began his cross of Mr. Eisenberg by asking him to delineate the differences between the Philip Morris Research Program and the CIAR.
1. CIAR was funded by several companies; PMERP is funded solely by Philip Morris
2. CIAR focused on indoor air quality issues. PMERP’s research focus is in 3 disease areas:
a. cardiovascular
b. respiratory, and
c. cancer in all areas, but predominantly lung cancer.
3. CIAR left final approval for projects with the tobaccomen on the Board of Directors. At PMERP, the Scientific Advisory Board has final approval, and no Philip Morris executives are on it.
Judge Kessler asked if the PMERP SAB members were vetted for conflicts of interest. Mr. Eisenberg took her question to mean a conflict of interest with their own educational or medical institutions, ie, if a research proposal came in from a member’s institution, or from a member’s former student, that member was expected to recuse him- or herself. I’m not sure that’s what Judge Kessler had in mind, but she let it go.
Mr. Wells’ questioning revealed that PMERP was apparently set up by Philip Morris to help the company develop less hazardous cigarettes.
Mr. Wells also asked about Mr. Eisenberg’s educational and work history. He worked for the Maryland Department of Health for a number of years, and by the time he left for CIAR, was the Assistant Secretary for Environmental Health and Science.
Mr. Wells went into some detail on Mr. Eisenberg’s interviews for the CIAR job. Mr. Eisenberg said he viewed the Board members not as tobacco company executives but as scientists. When he was told the tobacco industry was providing funding, he said he needed to think about it. He talked with some scientific friends–whom he later hired, apparently–and they seemed OK with the arrangement.
On Wednesday morning, Mr. Eisenberg seemed much more relaxed as he Mr. Wells conducted his cross-examination. He seemed more comfortable in the witness box, his face was more animated, he was smiling more, and with his hands clasped together on the desktop in front of him, he looked gently authoritative.
The same could not be said for the gallery audience. Mr. Wells is obviously the athlete of the Defense. Tall and broad, his upper back fills his suits so there is nary a wrinkle. Back on Sept. 22, there was an interesting moment when he rose to give the Defense’s introductory arguments. He walked to the podium and, just before he began to speak, he gave an ever-so-brief shoulder shrug. Undoubtedly unconscious, it reminded me of a boxer’s habit of relaxing his shoulders just before the fight begins.
Mr. Wells seems to have an athletic voice, too: deep, powerful and booming, it dominates the courtroom. Last week, he had microphone problems, and Judge Kessler questioned whether he even needed a microphone. Mr. Wells seemed flummoxed. “Wha–? I just had throat surgery. Wait till you hear me next year!”
However, especially when reading documents, Mr. Wells can punch that voice out like a pile-driver, monotonously droning on in the same rhythm–generally 4 beats to a measure–until the end of the document mercifully arrives. Perhaps it’s meant to wear down a witness, and I’m sure it can, but Mr. Eisenberg was a friendly. For me, it becomes sleep-inducing; for another courtroom witness, it led to a headache. I think that’s why Judge Kessler seemed to be fighting to keep Mr. Wells’ recitations minimal.
The Eisenberg Principle II
You can find the bad things the public health community says about you is without foundation. Or you can find the bad things the public health community says about you is a darn good defense. You can’t really find both at the same time.
What is often startling in this case is the use of the health community’s own documents and people to defend the tobacco companies. In this case, Mr. Wells showed that Dr. Samet–the same Dr. Samet who testified in September–helped develop CIAR’s Research Agenda. At a Workshop in Jan, 1989, Dr. Samet gave a presentation, “Indoor Air Pollution and Human Health / Some Research Needs,” wherein he said investigations should be carried out to describe the extent of exposure to ETS and the contribution of various microenvironments to integrated personal exposures of the special population.
Mr. Wells: And was that concept incorporated in CIAR’s Research Agenda?
Mr. Eisenberg: Yes
The workshop was by invitation; some scientists had agreed to be on the CIAR SAB. Jared Cohen and Garreth Green, both from Johns Hopkins, were the 2 people Mr. Eisenberg had sought advice from before accepting the CIAR position. Morton Lippmann, also an attendee, became a SAB member. Mr. Wells asked if Mr. Eisenberg had received pressure for naming to the Board people whose work tied smoking to disease. Mr. Eisenberg said, no.
Mr. Eisenberg said that many of the “Applied Projects” were not what the SAB scientists would consider “basic” or “fundamental” research, ie, they were not hypothesis-based, but rather were meant simply to gather information. Most seemed to be exposure studies, ie, the 16-cities studies from Oar Ridge National Laboratories: they were very expensive, and required interdisciplinary work.
Mr. Wells took the court through the steps by which one could determine the exact nature of the Board of Directors and CIAR’s tobacco funding from its Request for Applications. The process seemed clearer, yes, but still seemed to involve 3 or 4 steps, a lot of inferring, and page-turning.
Mr. W: In hindsight, you could have been clearer?
Mr. Eisenberg: Yes
Mr. Wells read from a 1989 document wherein Michael Cummings said,
“The CIAR charter members . . . . include Philip Morris, RJR and Lorillard. Its true purpose, like that of the Tobacco Institute is to foster confusion, this time about the public health significance of ETS.”
Yes, said Mr. Eisenberg, and other articles were saying the same thing.
Mr. Wells introduced an Advocacy Institute “Action Alert” recommending letters be written to the EPA to remove Dr. Lippman from the EPA SAB, because he sat on the CIAR SAB. Mr. Wells introduced newspaper articles which exposed the CIAR/industry link.
So, said Mr. Wells, drawing upon the Eisenberg Principle, it was publicly known within the scientific community that the CIAR was funded by the tobacco industry.
Mr. Wells asked if Mr. Eisenberg recalled any articles that said CIAR’s tobacco funding “had just been discovered.”
Mr. Wells started to read a statement by Dr. Lippman–then chair of the EPA’s SAB–at a December, 1990 EPA hearing, on criticisms about his and others memberships in the CIAR SAB.
“It’s very long!” interrupted Judge Kessler.
“There’s not much behind this, your honor,” said Mr. Wells.
You could see Judge Kessler screw up her mouth as he continued on.
Dr. Lippmann said, “I applaud the contributions of tobacco and other industries that support this needed research.” Mr. Wells established that Dr. Lippmann continued to serve on both boards, even when the EPA concluded ETS was a contributor of lung cancer, and was not pressured to leave the CIAR board. In fact, Dr. Lippmann serves today on the PMERP board. And the EPA SAB.
Mr. Wells read from a November, 1989 American Medical Association form letter urging institutions not to participate with the CIAR in their projects. It was so weird to see this top tobacco lawyer reading,
“[Such accommodation] helps the industry convince policymakers and the public that they have legitimate research projects under way that continue to search for links between smoking and ill health, and that the jury is still out on the “controversy.” . . . The industry uses funds to silence universities . . . and link prestigious institutions with the industry, buying respectability.”
So, said Mr. Wells, Eisenbergly, it was well known in the scientific community that the CIAR was tobacco funded.
Mr. Wells established that a number of CIAR peer reviewers, working for a $100 honorarium, were from EPA, NIH, CDC and other federal agencies, major universities and medical schools.
Mr. Wells asked Mr. Eisenberg about disclosure. Mr. Eisenberg said that the Request for Application encourages publication of the resulting research in the open scientific literature. “All we ask for is acknowledgment of CIAR funding.” (The acknowledgement only seemed to be asked for, not mandated; disclosure appeared to be up to the researcher.)
At one point, Mr. Wells introduced a Fall, 1996 article by Barnes and Bero titled, “Industry-funded Research and Conflict of Interest: An Analysis of Research sponsored by the tobacco industry through the CIAR.”
“I’m not introducing this article for the truth of it,” said Mr. Wells, who takes his Eisenberg Principle seriously.
Later, Mr. Wells began to read a letter to the editor from Charles Green (RJR’s Director) in response to the article. The large display screen seemed covered in yellow (the highlighted portions, which Mr. Wells was beginning to read.)
Judge Kessler interrupted, more firmly this time, “No, let’s not.”
After lunch, Mr. Wells introduced Mr. Eisenberg’s farewell letter from the CIAR, which stated that since its founding the CIAR and its Board reviewed almost 800 proposals and funded over 150 projects in these areas. These were accomplished through a peer review process involving 300 scientists, 75 institutions throughout the world, and resulted in articles in 250 peer-reviewed publications.
Mr. Wells introduced two studies seemingly unfavorable to the industry. He read from, “Inhalation of sidestream cigarette smoke accelerates development of arteriosclerotic Plaques” and then from “Inhalation of Steady State Sidestream Smoke from one cigarette promotes arterioclerotic Plaque Development.”
Judge Kessler asked (I think she was getting tired), “Does that title adequately state the article’s conclusion? Or is it just a catchy title?”
Mr. Wells, seeking affirmation from Mr. Eisenberg, said that Circulation is the most prestigious journal of the American Heart Association. He read from the acknowledgment: “supported by the CIAR and NIEHS [National Institute of Environmental Health Sciences].”
The NIEHS is a part of the federal National Institutes of Health (NIH).
Welcome to Eisenbergland.