When a person first comes into Courtroom #19 on the 6th floor, takes a look around and gets the lay of the land, often the first question is, “WHAT?? You mean this table-full of kids is taking on these two-tables-full-plus of old pros??” And that person may well go on to say, “Oh, jeez, even if you give them truth on their side, these guys are going to need some sort of 1980-US-Hockey-team, flat-out MIRACLE to come out on top here.”
And then they surprise you, as Mr. Goldfarb did recently with his thrilling, nick-of-time objections during Mr. Bernick’s cross of Dr. Henningfield. Mr. Goldfarb is young, tall, with curly dark hair–a bit like a Lesser God’s John F. Kennedy, Jr.–and in demeanor, deferential to a fault. So to see him stand toe-to-toe with Mr. Bernick and prevail was quite stirring.
But other times, you just have to say, as Judge Kessler periodically does, “I don’t know what the government is thinking here!” (She has also said such a thing to Defense, but not as often.)
Take Dr. Robert J. Dolan, for instance. He is obviously a well-qualified marketing expert, with a Ph.D. from the Graduate School of Management of the U. of Rochester. He is the Dean of the U. of Michigan Business School, was a professor at the Harvard Graduate School of Business Administration and has numerous books and other business writings to his credit. But still, you have to wonder why the DOJ put him on the stand. Mr. Bernick is simply merrily slicing away, like some whistling farmer swinging his scythe in the wheat field, cutting down Dr. Dolan’s Direct Testimony assertions–often because Dr. Dolan is able to cite precious little direct backup for them.
You half-expect Dr. Dolan, who’s about 55, bald with grey hair on the sides, to open his hands, shrug his shoulders, smile wryly and say, like a stand-up comic after a few leaden jokes, “I got nothin’!”
Dr. Dolan looks like a nicer version of Mr. Juchatz, who had a much more hard-edged business mein. If you were casting a live-action Warner Bros. cartoon, it’d be a no-brainer to immediately give Dr. Dolan, with his largish head and body, the Elmer Fudd role. And, indeed, it seems every time Dr. Dolan aims his shotgun at that wascally tobacco wabbit, some sort of mishap ensues.
As a witness, he seems soft. I just don’t know what the government is thinking here. He testified in the Minnesota case in 1998, and Philip Morris’ Peter Bleakley seems to have exposed similar problems. Yet even today, Dr. Dolan seems ill-prepared to defend against Mr. Bernick’s powerful arguments, which center around the fact that Dr. Dolan a) has no published account of his methodology outside of trial testimony, let alone in any peer-reviewed journals, and b) can point to no documents that explicitly and undeniably support his contentions that the industry set out to target kids and to keep smokers smoking with its low tar advertising.
When a document talks of 14-20 year old smokers, that’s powerful, yes. But when a multitude of other documents–including the very one that mentions 14-20 year olds– defines the target market in adult age ranges, the supposition of underage marketing suffers.
Also, Dr. Dolan could point to no outside research that found that:
–low-tar marketing ever caused anyone to stay smoking rather than quit.
–any marketing actually caused an underage kid to take up smoking.
Granted, the industry specializes in devising nearly-impossible-to-prove study hypotheses. Still, if there is hard research on these subjects, they seem outside Dr. Dolan’s purview. His Direct Testimony assertions are based on research on the industry’s internal documents informed by his business marketing background, and developed using his own personal methodology and processes. But–with all due respect to his impressive teaching and writing credentials–there seems to be little outside research to give his conclusions a concrete foundation.
Dr. Dolan’s direct testimony does have important information to impart–his critique of the industry’s position that its business adheres to the “mature market” theory is well-expressed, for example:
[T]o characterize it as a mature market misses the fact that new consumers are entering the market all the time, smokers’ concerns and attitudes are changing, the tobacco companies are introducing new brands, and many smokers are actively trying to quit. It’s a very dynamic market with the trend of total marketing spending by the tobacco companies on a steady increase.
A section of Dr. Dolan’s Direct Testimony reads,
Cigarette smoking is kind of an unusual practice in that most of the people who do it want to quit. Defendants knew this and wanted to decrease this urge to quit. They did this by marketing to downplay the health risks of cigarette smoking, offering low tar brands to provide what they called “health reassurance” even though they knew low tar cigarettes were in fact no better for you than regular cigarettes, and offering supportive advertising messages.
This appears sensible, but you should really be able to cite a document or two to support the charge. In the absence of such foundation, perhaps Dr. Dolan should have used Dr. Harris’ model, emphasizing the industry’s behavior as consistent with his suppositions.
MR. BERNICK’S ATTACK
Mr. Bernick pointed out many mistakes in the DOJ’s demonstratives (dates, companies, quotes) and omissions in the documents Dr. Dolan relied on. There were times when Dr. Dolan would assert an industry position without being able to cite any specific document.
An interesting exchange occurred over marketing costs. Dr. Dolan had presented an exhibit of FTC numbers that charted the companies’ ever-increasing marketing expenditures over the years, and that ended up showing the companies had spent $1B on advertising and promotion in 2002. Mr. Bernick pointed out that that figure represented less that 10% of total 2002 marketing expenditure, which was $12.7B. Where did the other marketing monies go? Into product promotions, two-fers and other discounts–ie, it could be argued, $11.7B went into undercutting tax increases. And while Mr. Bernick meant to imply the industry felt advertising campaigns were only worth a fraction of its total marketing budget, still–$1B is a lot of money.
Mr. Bernick scored by pointing out the inexactitude of using the term, “teenagers” when one–the DOJ, or Mr. Dolan, for example– is actually talking about young people who are underage. Many of us are as sloppy as Dr. Dolan in our use of this term. The difference in most states between 17 and 18 is far more than just a tick of the clock.
Weaker was Mr. Bernick’s assertion that the only reason tobacco companies made statements about not wanting youth to smoke was in response to criticisms.
BERNICK IN THE ZONE
During his cross, Mr. Bernick was certainly “in the zone”, now pacing away from the witness stand, now fixing his eyes on some distant corner of the courtroom as he walked and talked, framing and reframing his argument, now chopping the air with his large white hand as if hammering home his points. In this, he reminded me of a 60s comic book character named, I believe, Karnak. While smaller than his fellow Inhumans, Karnak’s talent lay in his ability to sense and pinpoint the weakest part of any structure. Then, by striking that exact point with a neat karate chop of his powerful hand, he could topple any edifice. In Mr. Bernick’s case, any witness.
Mr. Bernick came perilously close to popping out of the zone once when, after determining that Dr. Dolan could cite no other defendant but B&W who had actually said they did not market to people under 21, he said,
“So, the only one you are sure about is my poor client, Brown & Williamson.”
Even Judge Kessler, who is not given to such interruptions, couldn’t resist a smile as she said.
“Let’s not bring out the violin, Mr. Bernick.”
Still, Mr. Bernick could not be dislodged from the zone, and closed his examination at the end of the day, neatly, on time, and looking extremely pleased. And indeed, Dr. Dolan is apparently seen as red meat by the Joint Defense. When Judge Kessler asked for estimates of how much time the other companies needed with him, the other attorneys positively slavered to get their piece of the action. You could almost feel the ravenous glee with which they assessed their time. Judge Kessler may as well have asked a pack of wolves, after the leader and his mate had taken their fill, “Now how much would the rest of you like of the elk carcass?” Even runt-of-the-litter Liggett’s Aaron Marks said with a smile, “Just a few minutes,” as if to say, “Oh, just a piece of the liver, or maybe a left-over leg bone will be plenty for me, Your Honor.”
It will be interesting to see how the DOJ in its redirect will seek to reclaim this witness.