Tobacco On Trial

Frederick Gulson emerges as a fascinating figure.

Gulson was a high level lawyer at BAT Australia. He was in charge of document destruction that he wasn’t sure was legal. In the McCabe trial, the judge found it wasn’t; Gulson agreed. In appealing McCabe, BAT asked him to help them argue it was; he declined. BAT won their appeal. He was dismayed — and then shocked to discover that in BAT’s appeal, it had attributed views to him he did not hold. He wrote an affidavit covering all of this, intending to help the McCabe family. This got DoJ’s attention, and led to today.

“Why would Gulson, a wealthy man who enjoys fine food, fine wine and fast cars (he has seven, including a DeTomaso Deauville and a Masarati) — choose to shake up his comfortable life by becoming Australia’s ‘insider’?”

“Because Gulson is an angry man. He insists his views on BAT’s document retention policy were not accurately portrayed in the Court of Appeal hearing in which BAT succeeded in overturning the Supreme Court’s $700,000 award to Mrs McCabe. And he is deeply upset that Mrs. McCabe’s family faces the prospect of losing its home if it has to pay BAT’s legal costs.”

Jeffrey Wigand on Gulson: “For an attorney out of that framework, that very tight organization, to come forward is a tremendous statement of personal integrity”.

Newsletter of Whistleblowers Australia
http://www.uow.edu.au/arts/sts/bmartin/ dissent/contacts/au_wba/whistle200310.pdf

Like Jeffrey Wigand, Gulson is a whistleblower. Wigand blew the whistle on addiction. Gulson is blowing the whistle on coverup.

Like Wigand, Gulson was in a position to know. Wigand was a senior researcher at Brown and Williamson. Gulson was a senior attorney for BAT Australia.

Like Wigand, he was a reluctant whistleblower. Wigand didn’t decide to break the code of silence until he saw those 7 tobacco CEOs testify under oath that they believed nicotine wasn’t addictive. Gulson’s trigger was also tobacco industry testimony under oath, in the McCabe case in Australia.

And like Wigand, Gulson has given us a more complete, more vivid picture of the industry than we had before. Gulson’s testimony could shed light on the tobacco industry and:

1. Document destruction: the who, how, where, when, and why of it.

2. Sophisticated coverup strategies: how documents were hidden, kept away from the public, kept out of court.

3. Coverup for the coverup: making a Document Retention Policy look like innocent housekeeping when in fact its sole purpose was to keep incriminating documents out of plaintiffs’ hands.

4. Orwellian doublespeak: A Document Retention Policy that was in fact a Document Destruction Policy.

5. The Foyle memo: what it meant, what it means.

6. Lawyer control and censorship of science.

7. The long, continuing, and deep gap between what the industry says in public and what it says in private.

8. Industry efforts to influence science, to use science as PR, to generate “scientific” results it can use, and to hide other results.

9. Worldwide tobacco industry cooperation and pressure on shared and separate litigation, lobbying, and PR strategies.

Gulson was a senior in-house attorney at BAT Australia, then known as Wills.

Wills product was getting its customers addicted, making them sick, and killing them. Wills planned to keep its profits by avoiding accountablity for this. But Wills had numerous incriminating documents that supported a case it should be held accountable.

These documents showed Wills knew its product was causing disease, contrary to what the tobacco industry was saying in court. They showed that Wills knew about nicotine and addiction — and knew how to manipulate nicotine. And they showed that Wills knew the product was also killing the people closest to its customers.

You might ask, why did Will have all these incriminating documents in its possession? Some were scientific reports from of Wills and other tobacco industry research. Some came from other sources. Some, ironically enough, were fodder for Wills legal strategy: profiles of likely witnesses, information on judges, “helpful” scientific results that Wills might cite to get it off the hook.

Now, you might think, well, Wills had some options here. It could accept that some of its profits would have to go toward paying for the damage its product was causing. If it didn’t like that, it could get out of the business of selling a product that caused so much damage, killed so many customers. Regardless, it could always tell the customers what it knew, let them make more informed decisions. It could stop doing research on how to make the product addictive. But Wills chose none of those options. Instead, Gulson says, Wills chose to destroy the evidence. Shred it, hide it, get rid of it, or put it beyond the reach of plaintiffs.

Gulson was hired in 1989 to implement Wills “Document Retention Policy”. Gulson says that was the official title for what was more commonly known as the Document Destruction Policy. The Policy was created in the early to mid 1980’s as a result of a meeting of BAT Industries’ Board in London.

Gulson says Wills was protecting not only its profits but also the profits of the tobacco industry worldwide. BAT, Brown and Williamson, and BAT operating companies all shared research. BAT Australia incriminating documents were incriminating for other tobacco companies. So Wills document destruction policy was the same as BAT policy was the same as Tobacco Institute of Australia policy.

Worldwide tobacco industry legal cooperation appears to have gone beyond that. For instance, in the AFCO case the Tobacco Institute of Australia was being sued to stop making misleading statements that secondhand smoke was OK. Gulson says Philip Morris, R. J. Reynolds, and BATCO decided BAT Australia wouldn’t settle the case. Why? Settlement would entail admissions that might later be used to hold other tobacco companies accountable for effects of secondhand smoke.

Gulson says the written Document Retention Policy was written to make it look innocent. In a seemingly endless snake-eating-its-own-tail manner, because of the possibility that the written Document Retention Policy itself could be discovered, it didn’t disclose that its purpose was to destroy certain documents, incriminating ones.

Gulson says the purpose of the Document Retention Policy was to prevent Wills and the BAT Group from being held accountable in court by ensuring that incriminating documents were destroyed. The Document Retention Policy written document’s primary purpose was to provide cover for the actual document destruction enterprise, to ascribe an innocent housekeeping justification for the widespread destruction of incriminating documents.

Gulson says another component of the Policy was the routing of documents through lawyers for the purpose of “privileging” the documents: hiding them by saying they were covered by attorney-client privilege. So some documents included a notation to the effect of “for the purpose of legal advice” and were then routed through a lawyer, so that a document which would not otherwise attract privilege would now attract privilege.

Gulson also describes sophisticated coverup strategies used by the tobacco industry, usually coordinated with document destruction.

One strategy is use of law firms to store documents available to the industry but hidden from everyone else. Gulson says Wills, Philip Morris, RJ Reynolds, and Rothmans used law firm Clayton Utz. By storing them at Clayton Utz, instead of the tobacco companies, they were considered both privileged and beyond the reach of discovery. The comanies could then destroy their own copies — yet still get the documents back from Clayton Utz on a “grace and favor” basis.

Gulson says this was actually a fiction, that the companies could retrieve any document they wanted from the Clayton Utz database. But with this arrangement, if a plaintiff asked for a document the companies could say that they didn’t control the databases and didn’t have access to the document.

Another strategy was to keep research documents that were in the public domain, and to destroy “adverse” research documents that the public or plaintiffs’ counsel would not be aware of.

It appears that Gulson was not happy in his work. He was uncomfortable about the document destruction policy. He says he realized it was a contrivance designed to eliminate incriminating documents while claiming an innocent housekeeping intent. He says although he was uncertain about whether the ruse was legal, he knew that it was a ruse and that made him uncomfortable. He says the policy didn’t pass the smell test. The whole purpose was to keep evidence out of the courts.

But Wills management was telling Gulson that it was legal. That as long as Wills could argue that the documents being destroyed were not being destroyed due to litigation concerns, then it was legal. The problem for Gulson, it appears, is he began to perceive that those documents were being destroyed due to litigation concerns. That was why the Policy had to be written in such a way as to include other justifications for its existence.

Gulson says he ended up seeking advice of three different outside law firms used by the tobacco industry, on the question: is this really legal? He got back three yes answers. The problem was, it appears, he still didn’t entirely believe this himself.

And this problem became sharper for him when McCabe was first decided. Upon reading the McCabe decision, it appears he decided the document destruction was not legal, had never been legal.

In the McCabe decision, very briefly, the courts decided that due to BATs shredding of the evidence, the courts found for the plaintiff, Mrs McCabe. Gulson agreed. Gulson’s reaction to the factual conclusion reached by Justice Eames in McCabe: “This guy has got it - he understands what we were doing”.

BAT appealed the McCabe decision. Gulson says BAT lawyers approached him for help in the appeal. He wrote them a letter saying in effect, he thought the Judge got it right (”What the Judge says there accords with my recollection of events as prompted by His Honour’s observations”).

Gulson says BAT made statements in its appeal regarding his state of mind that were directly contrary to what he’d told BAT. Gulson says this misrepresented his views to the Court, and apparently he was shocked and unhappy about that.

BAT won its appeal. Gulson found the reversal a miscarriage of justice. Apparently it was at this point that Gulson blew the whistle on BAT. He agreed to write and sign an affidavit giving the facts as he knew them of BAT document destruction.

The Affidavit of Frederick Theodore Gulson comes to 5 pages and 30 points. It got attention:

http://www.theage.com.au/articles/2003/07/21/1058639728284.html?oneclick=true

http://150.theage.com.au/view_bestofarticle.asp?straction=update&inttype=1&intid=1734

It was viewed as important to the McCabe appeal:

http://www.lawyersweekly.com.au/articles/17/0c021317.asp

To BAT:

http://www.lawyersweekly.com.au/articles/4f/0c02524f.asp

And it led to Gulson’s involvement in the DoJ suit.

My guess is it will lead to other involvement as well. That would be consistent with Wigand’s experience.

Some commentary:

1. In Orwell’s 1984, the principle of official doublespeak was expounded on. An example: the Ministry of Truth actually spews lies. Now consider: a Document Retention Policy that’s actually a Document Destruction Policy. Orwell couldn’t be more relevant today.

2. I’d say a scientific research program plus a legal document destruction program pretty much by itself equals a coverup program. You’re generating and discovering results about your product, results that you share only selectively with the public. If you systematically bury the bad news, that’s coverup that hurts the
public.

3. In its scientific research, as well as its review of outside research, BAT was busily learning about what its product was doing to its customer, how the product got the customer addicted, what the product was doing to those closest to the customer. And every day BAT was choosing coverup for that knowledge base. This fact is critical to understand what’s wrong with the oft-repeated phrase “everybody
knew”. Not what BAT knew. BAT didn’t share everything it knew.

4. Engineering for addiction is perhaps the most damaging coverup here. Very few customers knew the manufacturer knew how to engineer the product as a drug delivery device. In this context, what Wigand revealed has a close relationship to what Gulson revealed.

5. BAT put its profits above public health. I’d say that’s what this comes to. To protect its profits BAT hid what it knew. There were things in those documents that would have helped public health if they had been known. BAT chose to keep them secret because BAT put its profits above public health.

6. In looking at BAT’s actions I find “purpose” is a good word here. It gets beyond the legal fictions to what was really driving decisions.

7. The Foyle memo: Gulson appears ready, willing, and able to explain everything about the Foyle memo, everything behind it. He appears to be in a position to confirm everything that BAT wants to deny about the Foyle memo. He may be able to show that it was real, relevant, not just hypothetical, not just about housekeeping, and not about mistaken impressions outsiders might get, but about correct impressions they might get.

8. Worldwide tobacco industry strategy: Wills was destroying documents not just because it feared litigation, but because it feared it or any other company would leak incriminating evidence that would make the entire industry accountable in court. This led to a remarkable amount of coordination in PR, lobbying, and litigation strategies. Ironically enough, the degree of coordination itself may end up incriminating. It may be deemed not just destruction of evidence but conspiracy to destroy evidence. It also opens a window on industry behavior, offers new insight into why the industry does what it does.

Reference material:

Industry use of lawyers to coverup science
http://www.lectlaw.com/filesh/zbk01.htm

The Cigarette Papers, Chapter 7: Legal Concerns Facing the Industry
http://texts.cdlib.org/xtf/view?docId=ft8489p25j&chunk.id=d0e8397&toc.depth=1&toc.id=d0e8397&brand=

The Shredding of BAT’s Defence: McCabe v British American Tobacco Australia
http://tc.bmjjournals.com/cgi/content/full/11/3/271

McCabe decision
http://tbbs.tobacco.org/Documents/020322mccabe.html

Loble website with related material
http://www.loble.co.uk/BAT%20appeal_copy(1).htm

This entry was posted on Wednesday, February 16th, 2005 at 4:36 pm 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.