The questioning of ex-B&W scientist Jeffrey Wigand Monday certainly started off amicably enough–which would seem unusual for anybody who has had the misfortune to come under fire from B&W’s David Bernick in the past. But, Dr. Wigand had indeed met Mr. Bernick before. Mr. Bernick had been lead counsel in the 1999 asbestos/tobacco case known as Falise II, which was tried in Brooklyn, NY.
So it was a bit of a surprise to see, when Mr. Bernick first introduced himself, Dr. Wigand’s elfin face break into a smile as he said, “Nice to see you again.”
“Yes,” said Mr. Bernick, smiling also, as if having just run across an old pal, “it’s been 4 years since Brooklyn.”
Then they started to spar, and it was surprising to see Dr. Wigand score right away.
MR. BERNICK: You’ve been testifying for about 10 years since that first deposition?
DR. WIGAND: I assume you’re referring to the DOJ fire-safe cigarette hearing?
MR. BERNICK: No, I’m referring to Butler. (The secondhand smoke case in Mississippi)
DR. WIGAND: I thought you said 10 years.
MR. BERNICK: Yes, 1995?
DR. WIGAND: In November . . .
Then Mr. Bernick dug in, grilling Dr. Wigand in regards to his previous testimonies about
–whether Project Airbus (nee Ariel), a “safe cigarette” project, was stopped due to liability concerns shortly after a Vancouver conference in Sept., 1989, as Dr. Wigand has testified, or whether the decision to end Airbus development in the US had been made the previous March (the project was actually transferred to the UK and became known as Nova).
–whether Project Hippo files were in the B&W library all the time (ie, were not secret).
–whether “compensation” was a known phenomenon for decades by the time Dr. Wigand was at B&W. Mr. Bernick claimed at least one scientific report found that the reason a smoker compensates is for tar. I’ve heard Mr. Bernick claim that cigarettes are designed for tar –as opposed to nicotine– delivery, but this is the first I’ve heard the compensation theory. Judge Kessler asked Dr. Wigand, “Why would you compensate for tar??” Dr. Wigand said he didn’t believe people compensate for tar, and neither did the people he knew at B&W.
–whether Dr. Wigand had sent out a draft of the Vancouver Conference minutes, or whether he had “allowed my secretary” to send it out.
Much of the most interesting questioning was about Dr. Wigand’s testimony in Mississippi, in which, a casual observer might think, Dr. Wigand had said rat poison was in Sir Walter Raleigh Aromatic Pipe Tobacco.
In the videotaped testimony we saw on the screen, Dr. Wigand was obviously stressed out, “objections!”s were flying fast and furious, and it was actually Dr. Wigand’s lawyer, Ron Motley, who asked if a “form of rat poison” was in pipe tobacco. Dr. Wigand answered, “coumarin is in Sir Walter Raleigh Aromatic Pipe Tobacco.”
In the later Butler transcript, Dr. Wigand was asked,
Q. Sir, at any time did you learn that B&W was using a form of rat poison in pipe tobacco?
Q. What form of rat poison is that?
A. It is a compound called coumarin.
Mr. Bernick asked, “Was that FALSE TESTIMONY?”
Dr. Wigand said it was not false, that there was a “form of rat poison” in the tobacco. He held that from a chemist’s point of view, coumarin is an “immediate precursor” to coumadin–which is a rat poison. “I said a form of rat poison is in Sir Walter Raleigh Aromatic Pipe Tobacco.” Dr. Wigand later stated that coumarin itself is dangerous enough, having been banned by the FDA for addition to human food in 1954. But, Dr. Wigand said, he should have been clearer.
A similar contretemps arose over another 1995 question answered in the affirmative when Mr. Motley asked if B&W intentionally added acetaldehyde to cigarettes. Since acetaldehyde is a gas, it can’t be “added.”
Mr. Bernick asked, “WAS THAT FALSE?”
Dr. Wigand said, the statement wasn’t really false, but it was “technically incorrect.” Gas can’t be added, but since acetaldehyde is formed when sugars are burned, you can add sugars, knowing that more acetaldehyde will be created, thus indirectly-but-knowingly adding it.
Mr. Bernick asked, “Your answer was false, right?” To which Dr. Wigand answered, “If you want to characterize it as false.”
(There was so much talk of the differences between coumarin and coumadin that Judge Kessler took the unusual step of advising both sides to go over the court transcript carefully to make sure the court reporters, as fine a job as they do, got it all correct. She should have also had each side go over the testimony on acetaldehyde, since the court reporter in Mississippi had misspelled it at least twice as “acid aldehyde” in the court transcript that was shown on the Elmo. The misspelling was picked up and repeated by at least 3 reporters covering the trial.)
Mr. Bernick also brought out difficult 1996 testimony in regards to whether ammonia technology increased the pH of smoke, and whether nicotine was more readily absorbed by the lungs when in its free-base form (as a result of the increase in pH). Dr. Wigand admitted he had no data to support the assertions at that time, but he averred, “I had two decades of the industry’s belief in that science.” Dr. Wigand indicated that in his experience, scientists at B&W and other companies well accepted the tenet that increased pH led to faster absorption.
The Solicitous Solicitor
Mr. Bernick, during one of these battles, interrupted his cross and apologized to Dr. Wigand for turning his back him at times (his pacing helps him gather his thoughts). He stressed, quite sincerely, that he meant no disrespect, and he hoped Dr. Wigand wasn’t offended. Then he returned to the cross.
“THAT WAS FALSE TESTIMONY, RIGHT?” he said.
Upon redirect, much of Mr. Bernick’s scientific challenges were answered, and DOJ lawyer James Gette did a good job of establishing the chaotic, nerve-wracking, subpoena-throwing media circus surrounding Dr. Wigand’s Mississippi deposition.