What a Difference “Jones/Day” Makes
January 25, 2005 12:12 am by Gene BorioA battle is being waged over the admittance of the 449-page “Jones/Day” document (http://www.tobacco.org/resources/documents/jonesday1.html). The DOJ wants to ask Mr. Schindler about it, but for some reason RJR attorney Jonathan Redgrave became uncharacteristically heated in his attempt to shut down the DOJ’s request.
DOJ attorney Joel Schwartz, who some may recall has had his own troubles with barely-controlled emotions in this trial, took the high road today, and after Mr. Redgrave finished, said that in his argument, he would refrain from shouting, yelling, and other such carryings on.
Judge Kessler had to caution, “This is NOT an emotional issue, everybody.”
The “Jones/Day” document is a lengthy think piece on potential litigation strategies which someone–say, a tobacco company, herein unnamed–might use to defend itself against strong arguments in liability cases. As such, it presents an expertly-expressed assemblage of concentrated evidence for the plaintiffs.
The following is a typical passage:
Although information dating to the 1930s was sufficient to put the tobacco companies on notice (and trigger both a duty to investigate and a duty to warn), evidence linking cigarette smoking and cancer clearly existed and was universally known in scientific circles during “he period 1950-54. By that same time, credible evidence linking smoking with cardiovascular and nonmalignant pulmonary diseases had emerged.
Despite the foregoing, the record is replete with admissions that the tobacco companies failed to investigate the allegation that cigarette smoking, adversely affects health. Industry witnesses have consistently denied that their employers conducted in-house smoking and health research. They have also denied that the companies employed epidemiologists, medical doctors, or others specially suited by training and experience to investigate the health charges. The plaintiffs will thus contend that the conclusion is inescapable that the companies did not take the first step in protecting the public from a dangerous product — they did not adequately investigate the credible health allegations against smoking.
In fact, however, virtually every company has proprietary research which in a broad sense can be characterized as smoking and health research: Liggett, Reynolds, Philip Morris and American did constituent analyses (as others undoubtedly did as well). Similarly, Liggett, Reynolds and Philip Morris (typically through contracts wit, outside entities) conducted skin-painting studies. Inhalation studies were conducted under contract by Liggett and Philip Morris, and a modest amount was conducted by Reynolds.
Broadly speaking, this research tended either to support the contention that cigarette smoking causes adverse health -consequences, or at least not to erode that contention. For example, the companies confirmed the presence in cigarette smoke of substances known to be carcinogenic and co-carinogenic [sic] to animals. They also confirmed that the application of cigarette smoke condensate caused tumors to animal skin, but they deny this phenomenon is relevant to human beings. In addition, none of the major epidemiological findings have ever been disproved by the companies. Finally, to this date, no industry witness can identify the quantity or quality of evidence it would take to convince him that there is a causal relationship between cigarette smoking and lung cancer or other. diseases.
Judge Kessler previously disallowed the document when the DOJ tried to get it in with Dr. Farone’s testimony.
But now the DOJ wants it in, not for any “truth of the matter,” but to establish that, since Jones Day was RJR’s law firm, Mr. Schindler should have at least been aware of these issues.
Judge Kessler is going to look over her previous ruling, and the recently-filed motions of the parties. She will rule Tuesday morning, before Mr. Schindler is sworn in.