FRI: Milstein on Youth Smoking Prevention
January 8, 2005 2:00 pm by Gene BorioThe action inside Courtroom #19 took a game-show turn Friday, as a longtime courtroom observer took the stand. No, Judge Kessler didn’t suddenly shout out, “Ronald Milstein, Come on down!” but the effect was the same.
Lorillard VP Ronald Milstein had been a familiar face in the gallery. His duties included reporting on the trial to Lorillard CEO Martin Orlowsky. Until, that is, he got the notice that he himself was to be a witness. Today he appeared on the other side of the hip-high swinging doors, and up on the witness stand.
In a low-key but intense sparring session–all personal emotions are muted here in courtroom #19–DOJ attorney Stephen Brody and Mr. Milstein fought over Lorillard’s teen smoking prevention initiatives.
Mr. Milstein sat low in the witness stand–he is squat, stout, with dark hair and a full face. Physically, there’s not much delicate about him– you could imagine this fireplug of a man as a savvy and effective bar brawler. (Between Mr. Milstein and obviously combative Mr. Orlowsky, Lorillard certainly seems the roughest, toughest tobacco company.) At times he walks somewhat stiff and hunched, as if something terrible may have happened to his back.
But mentally–that’s a different matter. Sitting in the witness stand, there is no stiffness, no weakness at all. Unlike Arthur Stevens, his predecessor at Lorillard, he knows exactly what’s going on here in the courtroom, and knows that whenever there is an outburst of crosstalk–as happened several times in this somewhat testy encounter–it will be Mr. Brody who is chastened to “allow the witness to finish his answer.” He carries an easy confidence, and will often let out a wry smile.
At one point, Mr. Brody asked a series of questions on Mr. Milstein’s cv:
“You went to SUNY [State University of New York] Stoneybrook, then to Hofstra, where you graduated at 26? . . . Then you landed at Culbro by the end of 83? . . . Then Del? . . . Then Lorillard?. . . You never had any education in public health? Nor in marketing? You’re basically just a lawyer, right?”
Mr. Milstein answered with a smile, “Just a lawyer, Mr. Brody.”
Judge Kessler broke in: “By answering that way, you can offend just about anybody in this room.” There was a rare round of laughter.
At other times, he awaits what he knows will be a hostile question with his head cocked, his jaw forward and his lips set, obviously confident he can deliver the necessary counterblow.
In the above exchange, Mr. Brody had been trying to pin down why Mr. Milstein, of all people, was chosen in 1998 to be the Executive-Level Manager in charge of making sure the company adhered to the youth access restrictions of the MSA.
Mr. Milstein said he was probably chosen because of his experience with the attorneys general during federal tobacco legislation attempts in 1997 and 1998; he also had been in the forefront of MSA negotiations, and was aware of the issues and familiar with the parties involved.
Mr. Milstein characterized his position as “interim” executive-level manager, though it’s unclear if it was so named at the time.
Lorillard has since appointed Steve Watson to succeed him in this position. Mr. Brody pointed out that Mr. Watson had been hired from the Miami Heat basketball team (vice president of sales and marketing), and “like you, has no educational background in public health or in designing programs for youth?” Mr. Milstein said he didn’t know, though you would think he’d be familiar with his successor’s qualifications.
WILL POWER
Mr. Brody hammered Mr. Milstein on his response to the Scott verdict in Louisiana in 2003. Lorillard’s PR at the time read,
“Liability to fund smoking-cessation programs should not be tried in class-action lawsuits,” said Ronald Milstein, Lorillard’s general counsel. “Research has shown time and time again that will power is the only smoking-cessation aid that always works.”–http://www.lorillard.com/index.php?id=70
Mr. Milstein denied that his statement was similar to other industry statements denying the addictiveness of nicotine. Mr. Brody trotted out a number of documents wherein the industry denied addictiveness by emphasizing the role of will power in quitting smoking, including statements from tobacco CEOs in the 1994 Waxman hearings.
MR. BRODY: Do you know if willpower has been examined in the scientific literature?
MR. MILSTEIN: I trust it has, yes.
Mr. Brody introduced a Cochrane Library study by C. Silagy and colleagues that was a systematic review of the literature on the effectiveness of various forms of nicotine replacement therapy.. The review found:
Reviewers’ conclusions: All of the commercially available forms of NRT (nicotine gum, transdermal patch, the nicotine nasal spray, nicotine inhaler and nicotine sublingual tablets/lozenges) are effective as part of a strategy to promote smoking cessation.
MR. BRODY: You are not a scientist or a medical doctor, but you did make a statement.
MR. MILSTEIN: I knew the evidence presented in the trial.
…
MR. BRODY: You didn’t say you were only speaking in context?
MR. MILSTEIN: My comments have to be fairly read in context.
Mr. Brody introduced the June 2000 US Public Health Service report “Treating Tobacco Use and Dependence: A Clinical Practice Guideline.”
Effective treatments for tobacco dependence exist and all tobacco users should be offered those treatments. . . Numerous effective pharmacotherapies for smoking cessation now exist. . . . . Because effective tobacco dependence treatments are available, every patient who uses tobacco should be offered at least one of these treatments.
MR. BRODY: So those who reviewed 6,000 items decided pharmacotherapies should be used with all patients attempting to quit–3 years before you said willpower had been proved time and time again the only smoking-cessation aid that always works.
MR. MILSTEIN: I disagree with your characterization of my statement.
[It may seem from the foregoing that Mr. Brody was testifying, not Mr. Milstein. And of course in a sense, he was. However, his points were made through the question-and-answer format. “Do you see…?” “Does this document conclude….?” etc.]
Mr. Brody did not ask Mr. Milstein to name specific source(s) for his “time and time again” statement, but pointed out that the press release on the Lorillard website does not say his statement should be taken in the context of the Scott case.
LUNG CANCER AND CESSATION
Mr. Brody moved on to quiz Mr. Milstein on his attendance at the trial in the early days.
Mr. Brody asked if he was in the courtroom for opening statements? And for Dr. Samet’s testimony, wherein he discussed lung cancer rates in ex-smokers?
MR. BRODY: Are you aware at the time you were identified as a live witness, Mr. Newbold told the court you reviewed summaries and transcripts of proceedings in this case in order to report to Mr. Orlowsky?
Mr. Brody presented a chart showing an elevated risk of lung cancer for ex-smokers even decades after quitting smoking.
MR. BRODY: Do you agree that what is reported there as relative risk of lung cancer by number of years since quitting shows an elevated risk for years after a smoker quits?
The chart itself was pretty deficient–it was hard to grasp (”I can’t figure out the chart, but I will agree with you, yes,” Mr. Milstein said), it listed no source for the figures presented and there was no indication of where it came from or who made it.
(At least one courtroom observer grasped the chart well enough to begin worriedly re-estimating lung cancer risks from his own former smoking career.)
A month after Dr. Samet testified (Oct. 29, 2004), Brody said, Lorillard issued the a press release, “Lorillard Wins N.Y. Product Liability Case,” available on the Lorillard website, which read in part:
“We are pleased with the jury’s finding that Kent cigarettes are not responsible for the claimed injury,” commented Ronald S. Milstein, Lorillard’s vice president and general counsel. “The evidence overwhelmingly showed that plaintiff’s occupational exposure to asbestos and not his smoking caused his lung cancer,” he added. “The plaintiff failed to prove that tobacco smoke was a factor in causing his injury, because he quit smoking many years before he developed lung cancer.”
Mr. Brody asked, Despite what we now from Dr. Samet’s testimony, you stated, “The plaintiff failed to prove that tobacco smoke was a factor in causing his injury, because he quit smoking many years before he developed lung cancer.” The fact that someone quit doesn’t mean his lung cancer risk returns to zero, does it?
Mr. Newbold here objected to the question for asking for a medical opinion. Mr. Brody rephrased:
MR. BRODY: If someone were to state that after quitting smoking a person’s risk returns to zero, would that be inconsistent with Dr. Samet’s testimony?
MR. MILSTEIN: Yes
MR. BRODY: So if someone takes up smoking thinking, ‘If I quit before developing lung cancer, . . . ‘ that would be wrong?
MR. MILSTEIN: I don’t know. . . based on Dr. Samet, I’d think he’d disagree.
MR. BRODY: So would there be a problem with a young smoker who might think, I’ll start smoking now, and —
Mr. Newbold’s objection to this question as very speculative was sustained.
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LIKE WE CARED
After lunch, Mr. Brody addressed Lorillard’s youth smoking programs in light of the MSA’s requirements.
Mr. Brody pointed out a number of problems with the We Card program and Mr. Milstein’s directorship since the MSA
–how stores with we card signage seemed to have as great a rate of underage sales as stores without any signage
–how Lorillard reduced We Card funding after the MSA, even as it increased promotional spending. (”Between 1997 and 2002, inflation-adjusted expenditures more than doubled, right?”)
–how Lorillard continued to oppose Self-service bans.
Mr. Milstein indicated the We Card program was meant to complement official state, municipal and AG efforts to decrease youth access, and thus didn’t need the money so much.
Mr. Brody addressed Lorillard’s EXCEL program for retailers. Penalties for retailers caught selling to minors call for fines, and after repeat violations, suspension from the EXCEL program.
As good as that sounds, Mr. Brody pointed out a seeming lack of real commitment to combat youth access with the requirements in practice. There is no self-reporting requirement. Lorillard must get its data from the states, and they are not forthcoming–only 4 states reported violations to Lorillard (Florida, Indiana, Vermont and Washington).
MR. BRODY: This has not caused Lorillard to insert a provision requiring self-reporting?
MR. MILSTEIN: No.
Mr. Brody introduced a string of internal emails among several Lorillard employees, including Mr. Milstein. They indicated that in those 4 states alone, 1,103 EXCEL participants were cited, fined or convicted of selling to minors. Mr. Milstein asked Mr. Watson if he was going to share the information with NAAG or the state AGs. Watson replied, “unless you think there is (sic) legal reasons to do so, I would be inclined not to share this info.”
Mr. Milstein said in court that “we were in active conversations at the time with NAAG” about NAAG’s efforts to gather all the information itself and put it on a website. “[Mr. Watson] didn’t want to tell NAAG that WE got this information.”
Mr. Brody asked if the website exists today?
“No,” said Mr. Milstein, “Unfortunately, it doesn’t. NAAG has not deemed it necessary to put together such a website.”
MR. BRODY: No penalty on any of these stores?
MR. MILSTEIN: I don’t know.
MR. BRODY: None suspended from EXCEL program?
MR. MILSTEIN: I know hundreds of stores HAVE been suspended from the program. (It’s unclear if they were suspended for reasons other than teen sales.)
MR. BRODY: There is nothing in the contract with retailers providing pulling Lorillard cigarettes from the shelves?
MR. MILSTEIN: We don’t sell to retailers directly; the product is not ours, they have purchased it from wholesalers.
MR. BRODY: You haven’t sought to restrict wholesalers?
MR. MILSTEIN: We’d have an antitrust problem with that. . . I don’t understand what you’re asking us to do. . . We have no way of controlling what retailers sell–we sell to others who sell to others who might be retailers.
Mr. Brody did an effective job exposing Lorillard’s seemingly casual–if not cavalier–approach — from its hiring practices to its seemingly inattentive reporting and enforcement procedures–to preventing teen smoking.
This doesn’t seem to be something you can legally hang a charge on, but could be effective in showing a pattern of behavior.
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MY COUSIN FOFFY
From a courtroom exchange in “My Cousin Vinnie” between Fred Gwynn, playing an Alabama judge, and Joe Pesci, playing a New York street lawyer.
Vinnie (to witness): Is it possible, the two yutes…
Gwynn: Two what??
Vinnie: What?
Gwynn: Did you say ‘Yutes’?
Vinnie: Yeah, two yutes.
Gwynn: What’s a yute??!!
Vinnie: Oh, excuse me, Your Honor. Two YOUTHS.
This movie scene came to mind Friday when, in discussing some disputed Sharon Smith documents with Mr. Bernick, DOJ lawyer Carolyn Hahn said a certain document had been “cited in our foffs.”
“What??” said Mr. Bernick in a rare moment of genuine befuddlement. “fo–?? What??”
“Foffs,” said Ms. Hahn matter-of-factly. “Proposed Findings of Fact.”
Perhaps I should have spelled it with a silent P, and caps–”PFOFS”–I don’t know. This in fact may be the only time in world history anyone ever sees the term in print. I just found it interesting to get a glimpse into some DOJ terminology–lingo that apparently has never before in five years made it across the aisle to the Defense table.
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[Note: This entry was actually posted on August 1, 2005. There may be other late-blooming postings to come. I have a ton of half-finished entries.]