WED PM: Giant Australian Menaces Courtroom
February 11, 2005 2:32 am by Gene Borio“That’s not a shredder. THIS is a shredder!”
Judge Kessler’s authority was challenged Wednesday by a towering presence: ex-Tobacco Institute of Australia CEO John St. Vincent Welch. Mr. Welch finally appeared in court Wednesday afternoon, high above the empty jury box on a movie screen, in a videoconference call to Australia. Sporting a foul glare and looking singularly displeased to be here, he kept his head down as if about to charge at any moment. His watch and cuff links gleamed. His long silver-blonde hair was tied back neatly, in contrast with his scraggly sideburns. After a brief mid-session break, he reappeared with his hair loosed, and it now flowed beside his angry face, giving him an even more dangerous, animal look. He looked gigantic on the screen, and, down in the corner of the screen, the small picture-in-picture of Philip Morris’ Tom Frederick made it look as if Mr. Frederick could well be the leonine Mr. Welch’s next morsel.
He had demanded conditions for his appearance here, and the court’s schedule had to make room for this videoconference, no matter what. Ms. Levy’s testimony had to be interrupted and continued the next day so that the videoconference could go on at 2:30 PM Wednesday (6:30 AM Thursday, Australian time). In addition, testimony HAD to be over in 3 hours, as Mr. Welch’s attorney, Roland Keller, had another appointment at 9:30 AM his time. (When Mr. Keller popped his head on screen, he reminded me, with his bald pate and huge handlebar mustache, of actor James Finlayson, whose famous “slow burn” was sometimes accentuated by smoke or steam coming out of his ears. But Mr. Keller seemed quite affable. No, the burn here was all Mr. Welch’s, and was not comedic.)
Mr. Welch in his Written Direct Testimony told his reason for testifying and made clear his feelings for the Defense:
I am sick of people in high places manipulating and distorting the truth, and then hiding behind “spin doctors” or others who try to cover up their actions. There was a Document Retention Policy and it’s purpose was to keep damaging documents out of the courts and out of the public. When the United States Department of Justice asked me to testify about it, I agreed.
During the live testimony, in a discussion of Steven Klotz, who functioned as a sort of in-house lawyer for the TIA, Mr. Frederick asked if Mr. Welch had any reason to doubt the integrity of Mr. Klotz.
“He’s a lawyer,” Mr. Welch spat.
The courtroom full of lawyers had a nice chuckle, and Mr. Frederick responded with a smile, half to Judge Kessler, “I’d take that as an answer except for pride.”
Between Mr. Welch’s thick Australian accent and his hostile delivery, he could be difficult to understand. When telling of a meeting with DOJ attorney Brett Spiegel, “I had a beer with him” was truly unintelligible, and had to be repeated.
Australia vs. Kessler
Judge Kessler’s authority was severely tested at one point when Mr. Welch said flatly, “I refuse to answer that question.” He claimed the Attorney General of Australia said he was entitled to do so. This threat, coming after such an extended period of extremely prickly negotiations with Mr. Welch, and snafus and difficulties of all sorts in getting this testimony and Mr. Welch here today, came as a severe blow to the DOJ.
After a short discussion with the attorneys, tiny Judge Kessler rose to the occasion and–bearding the lion in his lair–said,
“Let me explain to you… Both lawyers are in agreement that the advice you received from the Australian Government applied ONLY to the deposition. That advice does not apply to the testimony you are giving today. Therefore, you are required to answer the last question asked of you. If you don’t answer the question, then there are various sanctions that might be imposed. I might have to strike the entire testimony.”
Mr. Welch finally answered.
The disputed question was regarding this sequence in Mr. Welch’s Written Direct Testimony,
Q. Did the member companies ever send their internal scientific studies or research to the TIA library?
A. Yes. From time to time they would
Mr. Frederick had wanted to know why Mr. Welch left out the fact that “proprietary research was not exchanged with the TIA.” He asked,
Don’t you think it would have been more accurate to say that the research were things like Ph.D. theses, and not proprietary research?
Finally, Mr. Welch murmured, “It might have been.”
The Defense tried to keep Mr. Welch’s TIA concerns local—local politics, local legislation, not much to do with science, and Mr. Welch certainly had no scientific capabilities anyway. So local, in fact, that all that shredding, Mr. Frederick proposed, was perhaps because of budget problems, and was simply necessary housekeeping in a small, underfunded office where there was so much input. Mr. Fredrick didn’t say why a shredder should be more efficient than a trash can.
On the other hand, the DOJ tried to keep Mr. Welch’s TIA concerns international–a Document Retention Policy that was similar to member companies’ and to BAT’s many affiliates’, constant transmissions of scientific reports around the world and even among companies that were not members of the TIA , etc.
In all, though, Mr. Welch had no corroboration from anyone else who kept those 2 shredders at TIA whirring, he had no copies of the “Document Retention Policy,” he had no examples of those “Read and Destroy” documents and he could remember no specifics of them. Nor could he remember the specifics of the shredded scientific reports.
As the CEO of the TIA, his word on what occurred there carries some weight, yes.
And he did get corroboration of his testimony of dumpster-diving in the Australian Press. Australian papers on Thursday reported contacting the head of the firm that had rifled the trash of health and tobacco control organizations during Mr. Welch’s tenure. “We didn’t break any laws,” said retired private investigator Winston Gregory.
But even in the midst of all that shredding and dumpster-diving, Mr. Welch told Defense attorney Dan Webb that he never knowingly did anything wrong and that he was proud of how he conducted himself while at the TIA.
Right now, Mr. Welch’s testimony is sitting out to dry, awaiting some corroboration, presumably, from next Wednesday’s video witness, Frederick Gulson, in-house counsel for WD&HO Wills. Mr. Gulson has similar testimony about a Document Retention Policy from 1985, and will also talk of the amazing BAT database that linked BAT documents to affiliate companies all over the world.
I don’t think the Judge put much stock in Mr. Welch’s testimony, but I don’t think the Defense successfully impeached him either.
One disturbing event from the Welch live testimony that may come up again with Mr. Gulson is the matter of the Defense’s document production. Wednesday, the Defense produced a Welch document which was a complete surprise to the DOJ, and Sharon Eubanks protested vigorously. If I followed the rapid-fire correctly –there was seemingly extraneous argumentation that the Defense had to scramble to find documents since Welch was only named as a witness in March of 2004– Defense argued that this was a Philip Morris International document (the suit only names Philip Morris USA, no matter that PMI was part of Philip Morris, Inc. until 1987). Judge Kessler ruled, “Bottom line is, it has not been shown to me that defendants had an obligation to produce this document.”
DOJ had smoke coming out its ears.