TUE, Day 83: Judge Kessler Forgets . . .

March 30, 2005 8:33 am by Gene Borio

Mar 29, 2005. Updated Mar 30, 2005, 10:18 AM

We all have our gaps, blips, random sins of omission and commission–I certainly do, and in this blog am as capable of saying, “Defense attorney John Pierpont Morgan said….” as the next guy–well, maybe more so–but today, Judge Kessler seemed to have an unusual share of mental fade-outs.

First she confused not a few onlookers by referring to “the discussion we had Friday.” I, along with some irregulars, wondered, “Wait, was Court called for Friday and I somehow missed it?” No, she meant Thursday, but repeated the error several times during her otherwise forceful, trenchant discussion of the prickly remedies witnesses situation. (There was an important conference call with Special Master Levy and the parties, but it was out of court.)

A more serious mental lapse occurred when DOJ attorney Carolyn Clark questioned Liggett researcher Dr. Anthony Albino about tobacco funding of Ernst Wynder’s American Health Foundation in Valhalla, NY.

Dr. Albino had been shedding light on the hard-scrabble world of medical research. He’d once been a researcher at the prestigious Memorial Sloan-Kettering Cancer Center, but “the way things work at Sloan Kettering,” when he stopped bringing in the money, ie, his grant wasn’t renewed, he was asked to leave. Then he bounced over to Manhattan Eye, Ear and Throat Hospital, a quite useful clinic for poorer New Yorkers, and then to AHF. It was unclear exactly how research-oriented his duties at AHF were, or whether they were, really, just plain administrative. Dr. Albino said that he and famed, pioneering cancer researcher Ernst Wynder, head of AHF, “talked every day on how to increase funding.”

Scrounging around for work in the medical research field certainly sounds like a tough buck. Landing a gig at Liggett at 300 G’s must have been like a godsend for Dr. Albino.


Judge Kessler’s lapse is a classic illustration of how effective the corporate name-shuffle game is in hampering attempts to nail down a company for wrongdoing–or even just identification. At the beginning of Dr. Albino’s testimony, you needed an arbitrageur to clearly delineate the exact relationships among Vector Group, Vector Research, Vector Tobacco and Liggett Group. Certainly the witness seemed as confused as everyone else when asked if they were all separate corporate entities. He riffed briefly on the subject until Judge Kessler interrupted, “Is it fair to say that as a scientist and a non-lawyer, you really don’t know the answer to that question?” He answered, “Yes.”

When Ms. Clark asked, “Are you aware Philip Morris contributed millions to AHF?” Dr. Albino said he wasn’t. Ms. Clark showed him a 1991 document setting out Kraft’s 5-year commitment of almost $2 million to AHF to study the link of diet to lung cancer. (Philip Morris throwing money out to indict Kraft’s products in cancer causation does seem a little like throwing one dog to the wolves to save the rest of the sled team, and much can be made of this rich material. Whatever, spending $2M to help take the onus off its main money-maker must have seemed a good deal to Philip Morris at the time.)

This Kraft document was cc’d to Philip Morris Cos’ Geoffrey Bible, and was stamped by Stephen Parrish, so the holding company’s involvement was clear.

Liggett Group’s Leonard Feiwus objected on grounds of scope and foundation–he said this was getting far afield of Albino’s testimony, plus, the incident had occurred long before Dr. Albino had arrived at AHF.

Judge Kessler quickly added her own objection.

“Third,” she said, “this letter comes from Kraft, which at some point has a financial relationship, but I can’t remember what it was. The question as asked referred to tobacco companies or Philip Morris specifically, not Kraft. Sustained.”

Now DOJ attorney Gregg Schwind had introduced this very document in his redirect of Stephen Parrish back in February, and Judge Kessler had expressed her wonder that Kraft would fund such a potentially self-damning project. She did not, however, dismiss the document at that time as unrelated to Philip Morris. Perhaps the difference is that Mr. Schwind had linked the companies–Philip Morris and Kraft–before dealing with the issue in depth, and also had referenced a Philip Morris document that even touted the advantages of such Kraft funding.

But here today, Judge Kessler’s memory seemed to have suffered an uncharacteristic lapse.


The Albino cross got just a little surreal when DOJ attorney Carolyn Clark tried to impeach Dr. Albino for not mentioning in his Written Direct Testimony that he’d been asked to leave Sloan Kettering. He said, there was no evasion involved, he was just answering the question asked of him. (Either “What organization funded your last research grants before you left Sloan-Kettering?” or “What did you do in 1995 after you left Sloan-Kettering?”)

“Who asked the question in the Written Direct?” she asked.

“It was prepared by the legal team,” he said.


A few defense counsel found Dr. Albino’s New York accent sharply reminiscent of Ray Romano. Yes, but Ray Romano is pretty big. Because of Dr. Albino’s size, shape, physiognomy and, yes, accent I’ll remember him more easily as a softer, subdued Al Pacino at 50.


DOJ attorneys seem to be getting younger every day. Maybe the second string is being drafted for these Defense witnesses, I don’t know, but Mr. Schwind, who I once thought of as looking fresh out of law school, lately looks more like the Old Man of the DOJ, as all these Freshmen take over at the podium. (Even Defense is not exempt from this legal baby boom–Mr. Fiewus’ very dark hair showed not a hint of gray.)

When I hear, “Dakota Fanning for the United States, Your Honor,” I’ll know there’s real trouble…

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