TOMORROW: THE BATTLE OVER BATTELLE!
December 1, 2004 12:04 am by Gene BorioLate in the day Tuesday came word of an unexpected match-up for tomorrow: Bernick vs. Henningfield.
The prize hanging in the balance: ownership of the import and meaning of the famed 1963 Addison Yeaman “We are, then, in the business of selling nicotine, an addictive drug” document.
The two men are at the peak of their powers, and will be fighting over a seminal document. The clash and its outcome could be extremely significant.
TALE OF THE TAPE
AGE
Mr. Bernick: 50
Dr. Henningfield: Just about the same
HEIGHT
Mr. Bernick: About 5′6″ (One courtroom wag claims Mr. Bernick is, “pound-for-pound, the greatest lawyer in America.”)
Dr. Henningfield: A bit taller
WEIGHT
Both men seem lean, compact, in fighting trim
CONDITIONING
Dr. Henningfield is one cool customer in the witness stand. With a deep, confident quietude, he has good reason to be calm–he apparently has a near-photographic memory, and has studied the literature of his field with a depth, understanding and retention unparalleled by anybody in the case so far. The Defense has yet to be able to surprise him with even the most obscure document. So what if he hasn’t read it in 10 or 20 years? He can still remember the author(s), the place it held in the literature at the time, and his own reasons for disputing the Defense’s characterization of it.
PHYSICAL ASSETS
There are some significant physical differences. Mr. Bernick has short black hair and at some angles looks almost classically handsome –even a bit like Cary Grant; from other angles, he can look like an eyebrow-skewed Peter Falk. If he threw his arms up in the air, he might give you an uncanny impersonation of Richard Nixon.
Dr. Henningfield is just plain good looking, with a full shock of gray hair in front–slightly Donald Trump-style–which runs to a brown color at the sides and back.
Their voices offer the most dramatic contrast. Mr. Bernick’s voice has a medium timbre which penetrates. It’s not quite harsh, but when he has his victim down, it can easily get there.
Dr. Henningfield is extremely soft-spoken without being whispery. There is definite vocalization, but he does have to sit closer to the microphone than others in order to be heard properly. It certainly fits in with his cool and collected aura.
PREPARATION
Mr. Bernick took this fight at a moment’s notice, but seems more than ready for it. He has obviously been in training at least since the 1998 Minnesota trial, and seems eager for a comeback from that defeat.
[NB: Not really a defeat here. Please note that Mr. Bernick has since correctly informed me that the Minnesota court itself never actually addressed the Yeaman memo. In fact, he said, most courts have not admitted it. (It was used impressively in the Washington state trial.) — gb, 12/1/04]
The Minnesota approach didn’t go over well in the 2/10/98 Special Master’s Report, in which the Yeaman memo and others were discussed http://stic.neu.edu/MN/specialmaster2-10-98.html:
1.In response to the evidence of defendants’ internal knowledge that nicotine is an addictive drug, defendants argue that plaintiffs have “cherry picked” from defendants’ documents. . . . I conclude, however, that this response does not adequately account for the more than 80 documents, spanning more than 40 years, presented by plaintiffs. I also note that defendants have not disputed the content of these documents. It is also noteworthy that these documents were written primarily by senior scientists and research officials at defendant companies. Finally, defendants have failed to present evidence from their own internal files to support their allegation that plaintiffs’ selection is unrepresentative of defendants’ actual knowledge regarding addiction.
Now, apparently, the current Joint Defense team is trying to tackle the most damning documents head on, and Mr. Bernick seems to be their champion on this particularly hellish document, possibly the 2nd most famous next to the “Frank Statement.”
HOW THE FIGHT CAME ABOUT
Mr. Bernick had originally deferred his cross examination of Dr. Henningfield. And apparently the Joint Defense team’s battle plan was not to “open any doors” to pre-64 B&W documents now. When the DOJ’s Andrew Goldfarb began asking Dr. Henningfield about the Yeaman document, several attorneys objected; Mr. Webb specifically asserted he had been very careful not to get into this territory. However, BATCo’s Mr. Sheffler had introduced a document from BATCo to B&W on the Hippo project. (In addition, Liggett attorney Nancy E. Straub—yes, a female attorney actually had a whole 5″ of examination time for the Defense–showed a part of B&W’s “Root Technology / A Handbook for Leaf Blenders and Product Developers” to demonstrate that Ligget did not use “root technology.”)
Thus, Judge Kessler allowed Mr. Goldfarb to introduce the 1963 Yeaman memo, with the proviso that Mr. Bernick is then entitled to a re-cross–but ONLY on the narrow issues of the Yeaman memo and the Root Technology document. Mr. Bernick indicated he hadn’t planned to launch an attack on the Yeaman memo at this time, but he was ready, willing, and able–even eager–to do so now if need be.
To see the document quote, scroll to page 4: Implications Of Battelle Hippo I & II And The Griffith Filter July 17, 1963
MEMORABLE MOMENT
Note at the end of the document the “A. Y.” This section led to some amusement in the courtroom when Mr. Goldfarb attempted to focus in on the government’s version of the document, which is of even poorer quality than the one linked above. The Elmo document projector presented the courtroom with a blown-up, psychedelic Rorschach Test of fuzzy black dot patterns within which we had to struggle to pick out the “A.Y.”
Meanwhile, one could see in the dots a face, a butterfly, or even two people engaged in — oh well, maybe that’s just me.
SELECTED TEXT OF Implications Of Battelle Hippo I & II And The Griffith Filter:
The determination by Battelle of the “tranquilizing” function of nicotine, as received by the human system in the delivered smoke of cigarettes, together with nicotine’s possible effect on obesity, delivers to the industry what may well be its first effective instrument of propaganda to counter that of the American Cancer Society, et al, damning cigarettes as having a causal relationship to cancer of the lung…
We must, I think, recognize that in defense of the industry and in preservation of its present earnings position, we must either a) disprove the theory of causal relationship or b) discover the carcinogen or carcinogens, co-carcinogens or whatever, and demonstrate our ability to remove or neutralize them. This means that we must embark — in whatever form of organization — on massive and impressively financed research into the etiology of cancer as it related to the use of tobacco…
Certainly one would hope to prove there is no etiological factor in smoke but the odds are greatly against success in that effort. At the best, the probabilities are that some combination of constituents of smoke will be found conducive to the onset of cancer or create en environment in which cancer in more likely to occur. The TIRC cannot, in my opinion, provide the vehicle for such research. It was conceived as a public relations gesture…and it has functioned as a public relations operation. Moreover its organization, certainly in its present form, does not allow the breadth of research — cancer, emphysemas, cardiovascular disorders, etc. — essential to the protection of the tobacco industry…
Battelle says:
“The reasons for the ‘pleasure of smoking’ must be found partly in the relief of anxiety that cigarette smoking brings so constantly, and in such a very short time.
“This sedative - or soothing - effect of cigarette smoking and of nicotine is however very differnt from the ‘tranquillizing” effect as it was defined by pharmacologists after the discovery of the Rauwolfia alkaloids. Tranquillizers are highly effective in the management of overactive psychotic patients and, as such, are largely used in psychiatry; nicotine is certainly devoid of such effets.
* * *
“Our investigation definintely shows that both kinds of drugs (Rauwolfia alkaloids and nicotine) act quite differently, and that nicotine may be considered (its cardiovascular effects not being contemplated here) as more ‘beneficial’ - or less noxious -thatn the new tranquillizers, from some very important points of view.
“The so-called ‘beneficial’ effects of nicotine are of two kinds:
“1. Enhancing effect on the pituitary-adrenal response to stress;
“2. Regulation of body weight.
“These effects do not seem to be shared by reserpine, which on the contrary shows undesirable side-actions that are not given by nicotine, i.e., a nearly complete blockade of gonadic and thyroid activities, reflecting most probably a general blockade of the hypothalamo-pituitary system, which normally controlls all the endocrine activities.”
Moreover, nicotine is addictive.
We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms. But cigarettes — we will assume the Surgeon General’s committee to say — despite the beneficent effect of nicotine, have certain unattractive side effects:
1) They cause, or predispose to, lung cancer.
2) They contribute to certain cardiovascular disorders.
3) They may well be truly causative in emphysema, etc. etc.
We challenge those charges and we have assumed our obligation to determine their truth or falsity by creating the new Tobacco Research Foundation. In the mean time (we say) here is our triple, or quadruple or quintuple filter, capable of removing whatever constituent of smoke is currently suspect while delivering full flavor — and incidentally– a nice jolt of nicotine. And if we are the first to be able to make and sustain that claim, what price Kent?
Dare we as a matter of policy make such claims? If they are true and if we make no claim of freedom from danger — indeed, if we cry caution — why should we not?
December 1st, 2004 at 5:57 pm
From the Battelle document…”We must discover the carcinogen… and attempt to demonstrate our ability to remove or neutralize them.” In 1965 Dr. Tom Osdene, who incidentally took the Fifth Amendment over 100 times on the stand(obstuction of justice..?),had ordered a literature survey on aflatoxin, a fungal carcinogen first identified in 1960. Hundreds of aflatoxin documents can be found on the PM website from the 1960s. The FRAUD OF THE CENTURY is the industry knew aflatoxin was an integral contaminant of tobacco(a coumarin,see Wigand, The Insider) and, as the most potent carcinogen ever identified, was a major health menace from tobacco use. FDA began regulating aflatoxin in 1966, yet the industry defied regulation then, as now. In Ocober 2004 the industry left $3 billion on the table so as to not be regulated by FDA. The BAT Montreal Conference (1967) memo expresses this concern over potential FDA regulation and even names Senators who had been influenced the see this, then and now, never came to pass. The FRAUD is they knew fungal toxins on tobacco where deadly, yet they denied any cancer tobacco link until they turned 180 degrees in the late 1990s. Not only did the tobacco industry claim the moon was made out of swiss cheese, they spent billions of dollars on advertising and research to prove it was, all the while knowing the cheese was contaminated with a deadly fungal carcinogen,immune suppressant and AIDS enhancer.
While disgorgement of profits might be problematic Judge Kessler should insist on oversight by FDA or another body that regulates WMDs(a Presidential Executive Order?). Aflatoxin is regulated in Interstate commerce, by the Bioterrorism Act of 2002 and the Effective Death Penalty Act of 1997. Perhaps there is a role here for the new Attorney General or Gov. Ridge’s successor-for security reasons- although 400,000 deaths per year may not constitute enough of a threat…
This ongoing criminal misuse of attorney client privlege should stop and this FRAUD on the public should end as well. As part of a settlement the industry should submit to regulation or be forced into bankruptcy. See www.TobaccoAflatoxinAlert.org and Google “tobacco aflatoxin”.
December 1st, 2004 at 7:09 pm
Doctor,
Since you are raising allegations of fraud do you happen to have data that document the content of aflatoxins in currently marketed cigarettes, and more importantly in the inhaled smoke? Surely you do, right? Is it possible that there is virtually NO measureable aflatoxin content in the vast majority of commercially available cigarettes?
You wouldn’t be an individual who stands to personally profit from holding a patent on a process intended to reduce alleged aflatoxin content in cigarettes, would you?
Thanks.
Incidentally, aflatoxin actually is NOT “a coumarin” (ask Dr. Wigand about this). In fact coumarins (which have been used to flavor cigarettes) have been shown experimentally in laboratory animals to REDUCE the carcinogenic effect of aflatoxin.
As you also know, Philip Morris was, and continues to be, a strong advocate and supporter of the failed FDA regulation you mentioned. Its a bit disingenuous of you to promulgate a global American tobacco conspiracy when the United State’s largest cigarette manufacturer is still calling for increased Federal oversight over tobacco manufacture and marketing.
http://www.philipmorrisusa.com/en/policies_practices/legislation_regulation/fda_tobacco.asp
Alas, Judge Kessler does not have the authority to insist on oversight by the FDA of tobacco. That oversight must be granted by Congress, not by judicial fiat.
Finally, if you truly believe that infinitestimal quantities of aflatoxin constitute “weapons of mass destruction” as you vividly exaggerate above, I invite you have your home refrigerator examined by the FBI counterterrorism unit. That jar of peanut butter in the bottom drawer could be discovered by wily agents of Al Queda and used for nefarious purposes.
December 3rd, 2004 at 7:37 am
You write: “In Ocober 2004 the industry left $3 billion on the table so as to not be regulated by FDA.”
Wrong. Congress did not pass this legislation. Altria was for it, for whatever reason, and the other players in the oligopolistic tobacco market would have had to accept FDA regualation.
“While disgorgement of profits might be problematic Judge Kessler should insist on oversight by FDA or another body that regulates WMDs(a Presidential Executive Order?).”
Why don’t you talk about the real issues surrounding disgorgement?
This is a cowardly CIVIL case. The DOJ knew they couldn’t win a CRIMINAL case because of a pesky thing called proof beyond a reasonable doubt (virtually 100%); civil cases basically require a 51% guilty to win.
This is why disgorgement will be tossed, and tossed very soon. This case has been a horrible waste of money. I am all for tobacco regulation, but this case is not the proper mechanism. Government is pissed because it was cut out of the MSA, plain and simple. Kessler gutted the case early on, but somehow allowed disgorement to stay on the table. She will be embarassed in due time.
And, lastly, smoking is bad for you. Smoking is regulated by the FTC, a federal agency. Does this not seem like a joke to now say that, while tobacco complied with the FTC, tobacco is guility under RICO? Isn’t the FTC part and privy to the same conspiracy? What about all the “ill-gotten” tax revenues that came from the sales?