Tobacco On Trial

A possible turning point in the trial came at the end of the day Wednesday, as B&W attorney David Bernick worked to “rehabilitate” the damaged Tobacco Institute spokesperson Brennan Dawson. He may not have rehabilitated Ms. Dawson herself–that may have been impossible–but in placing her actions n the context of an intense, ongoing war, he may well have turned the entire DOJ case on its ear. “All’s fair…,” etc.: a multitude of crimes may be overlooked in war.

The Seventh Seal, Part II–The Cross Examination

Physically, the duel between DOJ attorney Leo Wise and Ms. Dawson was an interesting match-up.

Ms. Dawson had taken the stand amiably enough that morning,carrying her own water bottle and smiling pleasantly. Her engaging smile takes her far, as she could easily seem intimidating–she’s hard to miss in a crowd, what some would call “striking.” At least 5-11, she is big-boned, mesomorphic. Her face is as unretiring as her body, with high cheekbones and a strong jaw and chin. She has long, straight dark-blonde hair, which Wednesday was pulled back from her face with a barrette. She could be Max von Sydow’s daughter.

At first look you are immediately drawn to her eyes. They are bright but somewhat narrow, and her roundly arching eyebrows seem to be mirrored in the circles below them. It’s not as if she were up late last night. When we watched clips of her 1986-94, it was remarkable how little she had changed in almost 20 years–her hair was the same length, if a bit darker and less curly, and there under her eyes–the same circles.

She was questioned by DOJ attorney Leo Wise, who, physically, seemed to complement her. About the same height, he too had dark blonde hair, though it seemed a bit curlier, and was cut so short I doubt he needed to comb it that morning. Though more along the ectomorphic scale, he too had strong, if bonier, features. He could be Liv Ullman’s son.

They both spoke softly, intense and earnest, as befits a chess game on a wintry beach with survival at stake. She would often await his questions with a slight, eager-to-please smile.

Never Ask A Woman Her Wage

The beginning of the testimony Wednesday concerned Ms. Dawson’s salary. Most of those working for the industry have had to reveal their income, health benefits and 401Ks. There was some question as to how much she would earn in 2004 due to her employment at Brown & Williamson for the first half of 2004, her current employment at the merged R .J. Reynolds Tobacco Company, and the exact amount of her prospective bonus.

Mr. Bernick brought in the updated figures on Thursday, and Judge Kessler alertly helped tote them up: $466,000. I don’t know what these salaries do for the DOJ case–in this instance, they at least indicate that Ms. Dawson has done quite well for herself for a person who never graduated college.

Let’s Go Out and Not Lobby

Ms. Dawson’s testimony did not go well for the defense. Her argument that the TI did not lobby on health issues was undercut by a number of issues:

ENOUGH IS ENOUGH CAMPAIGN

The TI’s “Enough is Enough” campaign 2 days prior to the release of the 1989 Surgeon General’s Report “Reducing the Health Consequences of Smoking: 25 Years of Progress.” Also damaging was the TI’s reports on how the campaign cut into media coverage of the SGR, and how the campaign was the subject of the first question asked of the SG at the press conference. Pictures of the SG holding the “Enough is Enough” ad graced the pages of the LA Times and the NY Times. Hazier, and a deeper question not apparantly asked, was where the TI’s marching orders originated. “Wasn’t that [the “Enough is Enough” campaign] a major effort?” Judge Kessler asked. “Wouldn’t the Executive Committee (ie, the tobacco company representatives) be briefed on that?” Ms. Dawson said they probably would have, but she was not sure if they were briefed beforehand or after the launch.

COMMON SENSE CAMPAIGN

The TI’s press release, “Claims that cigarettes are addictive contradict commons sense,” was released exactly one hour after the Surgeon General’s press conference for the 1988 Surgeon General’s Report, “The Health Consequences of Smoking: Nicotine Addiction.” Again, Ms. Dawson was ignorant of the executive committee’s awareness of this release. Under questioning Ms. Dawson said the Executive Committee might have approved the anti–SGR campaigns and the TI’s 1990 anti-youth smoking campaign.

A form letter for TI consultants was presented that provided a space for a signature line, “Sincerely Yours,” but no indication of a subsequent line such as, Mr. Wise suggested, “Tobacco Institute Paid Consultant”

(In general, the letter/op-ed-writing campaigns without TI attribution seemed bad. That Ms. Dawson would disingenuously defend the lack of direct disclosure, professing a rather cavalier lack of knowledge about whether writers disclosed their relationship or not, seemed even more damaging–and indicative that such activity could easily continue into the future–a bad scenario for the industry’s RICO defense. )

Ms. Dawson defended press releases touting “independent” studies that the TI “presented” by saying that any reporter would automatically know that if the TI presented a study, it–as well as any scientists quoted within the PR–naturally would have been paid by the TI. No mention was made of deadline-harassed reporters who may neglect to pore over all 10 pages of the entire release and its attachments, and therefore miss page 5, where direct disclosure of a scientist’s affiliation may have been. Reporters sometimes do simply cut-and-paste portions of a press release to fill out their stories.

ANTI-GREAT AMERICAN SMOKEOUT CAMPAIGNS

The TI’s 1988 “Great American Welcome,” launched the same day as the “Great American Smokeout,” seemed damaging, as did 1987’s similar effort, the “Great American Challenge.” A 1988 document was produced that suggested such programs “can rain on the [American Cancer] Society’s parade.” Ms. Dawson said the “Welcome” was a part of the TI’s mission to “stop the harassment” of smokers.

MS. DAWSON’S STATEMENTS ON ADDICTION AND SMOKING AND HEALTH

Ms. Dawson said she addressed issues of smoking and health on her TV appearances rarely, and only when she was directly asked. She testified that her appearances were almost always in regards to legislative matters, taxes, etc. (She seemed most comfortable touting the tax aspect of “legislative matters;” I don’t recall her citing appearances in regards to youth smoking restrictions, advertising or smoking bans.) Mr. Wise presented 7 appearances where she reiterated the TI’s position on smoking and health. “You didn’t decline to answer, or tell the public to go to the public health authorities, did you?” he asked.

THE DALLAS/NYC INDOOR AIR QUALITY STUDIES

Mr. Wise attacked similar disclosure issues in connection with the TI’s 1987 Dallas and NYC indoor air quality studies.
BURIED DISCLOSURE OF SCIENTISTS’ AFFILIATIONS WITH TI

Ms. Dawson worked on PR for the McGill University ETS forum results, and helped develop statements for the press by TI consultants who testified at 1994-95 OSHA hearings and who submitted written comments on the early 90s EPA Risk Assessment report–all without clear and immediate disclosure of TI ties. The non-disclosure in press releases of the paid involvement of Maurice LeVois, Peter N. Lee and Joseph Fleiss were noted.

JUDGE KESSLER: Is it your testimony that reporters would know that any individual in any press release would know?

MS. DAWSON: It would depend on the way it was quoted… the reporter would have to make a judgement.

JUDGE KESSLER: Why leave it up to a reporter to make individual decisions, why not say it?

MS. DAWSON: It was clear to me then; I’d do it differently now.

JUDGE KESSLER: Would the public have known from this press release?

MS. DAWSON: The public would have had it translated through the media, which is how this would have gotten to the public.

JUDGE KESSLER: Would the public have known?

MS. DAWSON: Someone familiar with these types of documents would, someone off the streets, probably not.

Mr. Bernick Attempts

Mr. Bernick attempted to “rehabilitate” Ms. Dawson by showing that, buried a few pages within most press releases were indications various scientists were paid by or appeared “at the request of” the Tobacco Insitute.

On the smoking and health issue, Ms. Dawson said that when she first came to the TI, she was told to respond only when asked, and try to get away as quickly as possible. Why? “Because our position wasn’t credible, it undermined our credibility.”

Not much help, really.

The “War” Defense: Overturning the Chess Board

Then Mr. Bernick dropped his bombshell–whether a true explosion, or brief flare-up is unclear.

Mr. Bernick introduced a document “for the purpose of establishing a nexus.”

The document read,

“Media Strategies for Smoking Control: a Guideline

“A Consensus Workshop conducted by the Advocacy Institute for the NCI

“January 14-15, 1988.”

The document stated,

“[I]n any debate or public appearance, challenge that representative to respond to the question, “Do you believe that smoking causes ANY lung cancer or other disease?’ They will invariably respond that there is no causal relationship.”

Mr. Bernick established that Ms. Dawson was asked such questions in her TV appearances, virtually all of them occurring after the conference took place.

MR. BERNICK: Isn’t it true that the questions you were repeatedly asked about causation–were really triggered by a different issue?

MS. DAWSON: Very much so. . .

JUDGE KESSLER: Have you ever seen this document?

MS. DAWSON: Yes.

JUDGE KESSLER: Describe briefly what your understanding is.

MS. DAWSON: Advocacy Institute and NCI were training public health and antismoking groups to promote antismoking legislation; this is a training guide for those people.

Judge Kessler seemed a bit nonplussed, and at one point said, “My question goes to the legality of some of that activity.

The world, for Judge Kessler, seemed to have turned. The focus became not on what the Tobacco Institute had done, but–reprehensible as it may have been–why it had done so.

Suddenly the issue became, now, not public health, not teen smoking, not addiction, not cancer, not science–but WAR. Some sort of virulent, internecine, life-and-death struggle. A war with an implacable, government-backed and media-savvy foe–why Michael Cummings held a press conference on one of his studies and it hadn’t even been published yet!. A subterranean war with legions of government-assisted anti-tobacco fanatics who would, monomaniacally, give no quarter to the legitimately-held views of a few poor tobacco companies who had–just trying to stay in business– banded together in a citadel — the Tobacco Institute– to defend themselves.

The implication being that if, once in awhile, they had to pour boiling oil on their attackers–just to repel them, mind you, after all, they were the ones on the attack–who could blame them?

In this aspect the defense has a better, more intriguing, even more frightening “story” than the DOJ’s tired conspiracy story. Yeah, yeah we’ve heard that one a million times. This other, though–wow! As Judge Kessler asked, is it even legal?

This defense tactic has been used before, almost in passing, in the trial, but this seems the first time a concrete instance sank home with Judge Kessler.

As the industry fights for its life against a tobacco armageddon on the sandless beach of courtroom #19, has the chess board been overturned?

This entry was posted on Tuesday, January 18th, 2005 at 12:49 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.