Tobacco On Trial

WHAT A GRAND PARTY IT WAS

Last Wednesday Feb. 24 was exhibits day, which saw arguments over which disputed exhibits would be admitted into evidence–a usually tedious, almost housekeeping chore. Virtually all observers (save completist me) granted themselves that day off to get more pressing work done. The contrast between the empty gallery Wednesday and the full one for the Interim Summations Thursday was striking.

The snowstorm didn’t stop the trial. In fact, there was almost a snow-holiday–even cocktail party– atmosphere as observers entered and packed the gallery of Courtroom #19.

Certainly the trial had more onlookers when it opened last Sept. 21, but that was in the larger “ceremonial courtroom” down the hall. And the observers were mostly strangers to each other then. Now, there was a whole meet-and-greet hubbub going on, “Hey! Haven’t seen you since the last time something newsworthy was supposed to happen at this trial!” The only aural cues missing were the clinking of ice cubes in cocktail glasses and the tinkling of piano music in the background.

Mention has been made several times in court of the “hundreds of lawyers” the Defendants have working behind the scenes. I have no idea what stadium they occupy, but I was able to ask a few questions of Mr. Dawson Horn, in-house counsel for Altria on litigation, who attends virtually every day. Among the lawyers actually taking an active part in the trial, Philip Morris/Altria alone has 5 lawyers from 4 major law firms in regular attendance, and Mr. Horn observes from the gallery. Altria’s litigation spokesman John Sorrells also attends nearly every day.

Presumably each major tobacco company defendant has an in-house lawyer observing, much as Mr. Milstein did for Lorillard. Mr. Milstein reported each day to CEO Martin Orlowsky, before he got the call to “come on down!” and be a witness himself. We haven’t seen him in the gallery since his testimony. Didn’t even make the party!

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BICKERING TOWARDS BETHLEHEM

How useful were these summaries to Judge Kessler?

One of the first things a negotiator or marriage counselor does when interceding between two parties is to ask each to state the other’s position. Such a procedure can unearth a host of communications problems on both the speaker’s and the listener’s sides. It may also indicate if there is a desire to get together at all. Then such restatements can take on a more calculated bias.

At this thick, enriched level of scientific expertise, marketing acumen, historical data, government involvement, document discovery, etc. we have a 50-year history that, as in a long-term marriage, may be pored over in detail, with each party remembering and presenting it a different way, offering to the court different slights and betrayals, insights and grievances, and, yes, an observer may feel his eyes glaze over, and may perhaps be excused if he is overwhelmed by the feeling that there is a strong element of bickering here.

Mr. Marine, Ms. Brooker and Mr. Bernick fought bitterly over important issues that somehow seemed to have been reduced, in their many hair splittings and split infinitudes, to petty details.

If we’re at the point where the Defense equivocates about “we are in the business of selling tobacco, an addictive drug,” and puts such a fine point on the Tobacco Institute’s clear attempts to undercut public health events, then perhaps–despite Mr. Bernick’s assertion that “Mistakes were made”– there is no reconciliation, no agreement on past wrongs possible.

If we’re at the point where the DOJ will argue fiercely over one minor tar/nicotine level variation in a forest of tabular data from a study in 1978, and will try to impeach a witness based on testimony that the DOJ itself wrote, I can see this case may have to be moved down the hall to Federal Divorce Court.

But the bickering aspect was clearest in Mr. Webb’s argument. Mr. Webb is certainly a fierce and riveting arguer. But there is –in a non-legal sense–a plaintive tone to his voice, a hint of some deeper, more personal hurt and betrayal lying just behind his legal arguments.

He said he was surprised by DOJ’s shift of position over exactly when the tobacco companies should have accepted the scientific consensus on addiction. Mr. Webb felt compelled to explain his frame of mind to the court:

“I was always baffled — when the tobacco companies and Government and addiction experts were all saying the same thing about the scientific definition of addiction–how it can be that we were involved in a fraud scheme and the others were not.”

You definitely got a feeling for Mr. Webb’s distress, and how hurt he was that he was singled out when he was just doing what all the other kids were doing.

Ms. Brooker strengthened a relatively new theme for the DOJ–that the bad spouse’s ostensible good behavior exists only because the judge mandated it. Ms. Brooker argued that many of the “permanent and irrevocable changes” the industry proudly touts have been either required by the Master Settlement Agreement and/or were instituted since the Government filed its suit in September of 1999, ie, much of the industry’s current behavior is specifically meant to undercut the government’s charges.

Ms. Brooker showed that the “new generation of management” at the tobacco companies isn’t very new after all. Top management at Altria had an average time with the company (or a Philip Morris company) of 24 years; Philip Morris USA executives, 22 years; and Lorillard executives a similar span. Ms. Brooker’s catchphrase throughout her presentation was one heard all too often in other divorce courts: “Some Things Never Change.”

[Ms. Brooker also featured a series of strong documents I didn’t remember at all. At one point, Judge Kessler even said, “Have we seen this?” Ms. Brooker assured her the document had been seen and admitted into evidence. ]

When Mr. Webb would characterize the DOJ’s arguments–and then knock them down– you knew he was slanting them somewhat– you expect a certain amount of straw-man to occur here. But it is interesting the way that DOJ responded to the press about it. DOJ attorney Stephen Brody passed his handwritten notes back to the Press Room, to be read by the Justice Department’s representative. Mr. Brody’s notes read that the DOJ’s case was “completely misrepresented,” much the way divorce courts ring with proclamations of, “I never said any such thing!”

This lost-in-the-details aspect of the trial at this point, seems to damage the argument. (Though many critical subjects were addressed today, as an example, we’ll just deal with the Definition of Addiction argument.)

The Defense made strong points: that 1) the WHO website even today recommends “addiction” be used only when intoxication accompanies dependency, and 2) Dr. Howard Shaffer, Director of the Division on Addictions at Harvard Medical School, recommended in 1997 that researchers go back and define addiction in some meaningful way; and 3) certainly Dr. Henningfield confirmed that the elements and nature of addiction and aspects of classification are still being debated.

But the fact that scientists recognize that addiction is a complex and difficult issue that no one knows everything about does not mean informed parties didn’t have enough information to act upon it by those most involved in the issue, ie, the people who actually sold an apparently addivtive and deadly product to hundreds of millions of consumers, starting most of them off on the addiction when they were underage.

The DOJ also made a compelling if conjectural case that public knowledge of the major elements of addiction and the physical power of nictoine — as many in the industry knew that power, and even designed for it–might have changed behavior had that knowledge not been obscured by industry PR that trivialized it.

But to actually contruct a case for proof–especially of intent to defraud on this and several other “pillars”–seems inherently a more difficult task for a plaintiff than poking holes in that construct.

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THE SUM OF THE SUMMATIONS

To me the Interim Summations ran on too long, and the judge at times looked fairly bored. Judge Kessler is incredibly bright and well-trained, and has at this point, it seems to me, a firmer and more well-rounded grasp of the issues, the science and even the data than virtually anyone on the planet. (The true import of this trial, in fact, may come less from any particular decision, subject to challenge and appeal, but from the written opinion itself, the insightful summation of 50 years of evidence from this extremely bright, even gifted Judge.)

The Defense is pretty good at diminishing the impact and reliability of various individual documents, but there seems to be enough data in the record for the judge to evaluate the pros and cons of the mass of evidence in any one area as a whole. And this judge seems eminently capable of making up her mind about the various issues and about the quality and relevance of evidence in each instance, and basing her findings on solid legal, logical and ethical grounds.

(In fact, she came up with one partial remedy for the compensation issue that neither no one I’ve talked to had heard of before: to prevent smokers’ unconscious ability to defeat the purpose of low-tar cigarettes, why not mark the location of ventilation holes on the filter? It would both inform smokers of the presence of the holes (increasing knowledge of their purpose), and allow them to avoid them easily. We saw the idea sparked by a Defense illustration, and then within 3 minutes she had developed her idea into a question she posed to the witness (Dr. Burns) on the idea’s practical feasibility. The only place I’ve heard this issue addressed is in a 1995 Deposition in the Connor case by Dr. David Townsend )

The DOJ can make a case fairly clearly for some aspects of their brief–the clear intent of industry concealment through the TI is especially strong, but other “pillars” are tougher to nail down, especially youth marketing. There is no smoking gun document in this area, as the Defense demands, that reads, “Let’s go out and target kids.” The DOJ would be better off quitting arguing about individual documents and instead present succinct statements of the confluence of factors that make industry targeting of children at least a compelling argument.

The battle over some of the DOJ’s pillars becomes reminiscent of the battle over the health effects of primary smoking–you had strong epidemiological evidence, you had biologic plausibility, you had animal studies–but you didn’t have –and still don’t today– the exact physiological and/or molecular mechanism of disease causation–so for any stickling, i-dotting, t-crossing, profit-affected entity, it could claim “illegible,” or “can’t read what that word is” or “not proven.”

And so it is here with many issues: teen marketing, nicotine manipulation, at least in intent to manipulate it in order to keep people addicted. However, if you combine the preponderance of evidence, and the enormous number of suspicious activities, uncontradicted by any averments in the other direction (any indication, for example, that anyone said that kids shouldn’t make the smoking “decisiuon” because a) kids just don’t make this ideal sort of reasoned, considered, dispassionate series of calculations involving risk / benefit ratios, etc. b) smoking is horribly addictive, or c) that it causes disability, death and disease) and the case, much as lung cancer today, may be considered by any reasonable person or scientist, to be proven.

The case must be made from a preponderance of the evidence. And the evidence is fairly strong when you look at the industry’s motivation, tracking, behavior, ads, its lack of documented concern that perhaps their product is killing masses of people, or that its advertising may attract kids, its penchant, when faced with a public health or medical difficulty, to go in-house for answers rather than to established professionals in the public health and scientific communities, etc. (When you add the startling and massive invasion into kids’ minds and schools which is a part of Philip Morris’ Youth Smoking Prevention program, as revealed by the Levy/Bonhomme testimony, you realize that today, few know more about kid smoking attitudes, and perhaps no corporation has more friends on school boards than Philip Morris.)

I belleve the DOJ could more concisely structure all the elements to fit together to point a finger at the industry. Cutting through the mass of details — and certainly a great deal of the industry’s hair-splitting–to delineate and clarify the “overarching scheme” seems more useful that rehashing each particular of the evidence. Wrap up the evidence, tie it with a bow and place it on Judge Kessler’s bench.

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TRUTH AND RECONCILIATION

The industry’s total denial of any wrongdoing may be necessary legally, but the notion that everything they did was all just to make cigarettes safer –as advocated by the public health community–rather sticks in the craw. I think of the very young Charles Lamb’s reaction while visiting a graveyard and seeing all the encomiums paid the deceased on the tombstones. He asked his older sister, Mary: “Where do the naughty people lie?”

For some aspects of the case, the guilt of the industry seems painfully clear–especially the war against any science that might threaten their business interests. But others, like teen marketing, would have to be proven with the mass of correlations–a “nexus,” as has been mentioned in court. The industry argues correctly “correlation is not cause.” Yet a strong case for cause can be made when nearly every correlation you look at points the same way. Faced with a cornucopia of correlations, there may indeed be a legal basis for finding the industry guilty, even without direct, incontrovertible proof.

That the industry doesn’t concede certain aspects of the case seems to prove ipso facto it can’t be trusted to do right in the future.Are the tobacco lawyers too lost in their own world to see what much of the evidence will reveal to a discerning judge? Or are they just taking home their paychecks? Or are they doing the best they can because, really, there is no other choice at this point?

If this were Desmund Tutu’s Truth and Reconciliation Commission, such denial would be grounds for either punishment, or self-expulsion. As Apartheid fell in South Africa, the Truth and Reconciliation Commission was formed to help hold onto the country’s wealth, to allow for continued progress, and to help both races just plain live with each other. As Alan Brody put it, the new government was willing to trade punishment for honesty. Those willing to admit wrongdoing were granted amnesty in exchange for a truthful account of their often atrocious–in more ways than one– activities.

There were compelling economic reasons for the TRC; there may well be compelling public health reasons for a similar commission here.

But as for this divorce court here and now, it is the irreconcilable differences that command everyone’s attention. And, as usual, it’s the children who are hurt most–in this case, the 400,000+ who die each year of tobacco-related diseases.

And far, far, far be it from me to offer DOJ advice. Ms. Eubanks and Mr. Brody are glaringly brilliant, and I, of course, am somewhat less so; plus, I know nothing about the law. So perhaps my recommendations wouldn’t actually help Judge Kessler. But they certainly would help me.

This entry was posted on Monday, March 7th, 2005 at 12:58 am and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.