Sample Testimony: Mulholland Driven

April 22, 2005 6:13 pm by Gene Borio

The following is illustrative of the level of contentiousness we may hear at the live testimony of long-time FTC economist Dr. Joseph Mulholland on Monday.

The below is from Dr. Mulholland’s Written Direct Examination, as prepared by the Defense:

**———————————————————

Q: Dr. Mulholland, do you believe that the FTC has been effective in its regulation of the tobacco industry?

A: I think it has been extremely effective

Q: Why do you believe that, sir?

A: The FTC has rigorously scrutinized all manner of claims against the tobacco industry both before and during my tenure there, and has been the government agency at both the federal and state level principally involved in doing so. Also, through its tar and nicotine policy, the FTC has promoted the development of lower tar cigarette products by the industry that have led to the dramatic decline in the sales weighted tar average for cigarettes in the United States over the past 50 years, thereby substantially reducing the health risks to the millions of Americans who continue to smoke.

Q: If I were to suggest to you, sir, that the FTC has had “toothless involvement” in regulating the tobacco industry, would you agree with that statement?

A: No.

Q: Why not?

A: I think it is contrary to the facts. As I just said, not only has the FTC rigorously scrutinized all manner of claims against the tobacco industry, but its policy on tar and nicotine has promoted the development of lower tar cigarette products, with consequent reduced health risks for millions of Americans.

**———————————————————

Wow! Sounds bad for the DOJ’s case on nicotine manipulation and the health effects of “light” cigarettes!

Below is the same section of Dr. Mulholland’s Written Direct Examination, as corrected by Dr. Mulholland:

**———————————————————

Q: Dr. Mulholland, do you believe that the FTC has been effective in its regulation of the tobacco industry?

A: My understanding from my counsel is that this question is beyond the scope of Order #917, which limits me to expressing my conclusions concerning or relating to my four papers concerning cigarette related issues. If required to respond to this question, I would testify that I think that the FTC has been reasonably effective in fulfilling its law enforcement mission to prevent deceptive cigarette advertising.

Q: Why do you believe that, sir?

A: My understanding from my counsel is that this question is beyond the scope of Order #917, which limits me to expressing my conclusions concerning or relating to my four papers concerning cigarette related issues. If required to respond to this question, I would testify that given the resources that the Commission has devoted to cigarette related issues in terms of time, manpower and funding, I believe that the agency has done the best it can to address deceptive advertising in the cigarette industry.

Q: If I were to suggest to you, sir, that the FTC has had “toothless involvement” in regulating the tobacco industry, would you agree with that statement?

A: I do not know what you mean by “toothless involvement”

Q: Why not?

A: My understanding from my counsel is that this question is beyond the scope of Order #917, which limits me to expressing my conclusions concerning or relating to my four papers concerning cigarette-related issues. If required to respond to this question, I would testify that, as I stated earlier, I believe the FTC has been reasonably effective in regulating deceptive advertising in the cigarette industry.

5 Responses to “Sample Testimony: Mulholland Driven”

  1. tobacco observer Says:

    Its interesting (and hilarious) to see the complete differences between Dr. Mulholland’s responses before and after the gov’t lawyers “got” to him.

    Q: And based on your review of the evidence conducted in the course of your duties at the FTC do you know whether or not the FTC’s policy on cigarette advertising has been successful?

    Answer #1 (pre lawyer weaseling): “It has been enormously successful, as demonstrated by. . .[etc].”

    Answer #2 (post lawyer weaseling): “I am not sure what you mean by ’successful’ ”

    So apparently after Dr. Mulholland’s lawyers spoke to him, he retrospectively forgot what the word “successful” meant. Even though he worked for the FTC for 20 years, he also seemed to forget everything he knew about the FTCs internal policies with respect to cigarette labelling requirements, every development in the field since 2002, and many other material facts that seemed pretty straightforward before lawyerly intervention.

    Oh well. . .so much for candor in government!

    Naturally, this kind of thing is terrible for Tobacco’s defense here, but the irony is palpable. Apparently tobacco isn’t the only side of this case that’s coaching its witnesses and taking radically different public and private positions!

  2. krueger Says:

    Oh, it’s as likely that Big Tobacco’s lawyers were the ones that made the changes. Since we have no evidence (what was that lawyer’s name, exactly?) this is all just speculation, and equally plausible either way.

    For instance, one possibility is Big Tobacco suspects Mulholland would not stand up for all the claims put in his mouth. His Written Direct was written by Big Tobacco. Maybe Mullholland was going to back away from large parts of it on the stand. If so, the strategy of trying to get its own witness’s testimony declared outside the scope, might be the best Big Tobacco can do here.

    Another possibility: for all we know, Big Tobacco may have realized that the original claims it put in Mullholland’s mouth might open the door into areas it really didn’t want opened. Areas of questioning it really would be better off to keep closed.

    The truth is, we don’t know. This is all speculation.

    It’s not like it is with Howard Willard. With Willard, we know what influences were in force: 22 days of preparation by a team of high-powered tobacco lawyers:

    http://www.tobacco-on-trial.com/archives/2005/04/12/day-91-willard-on-pm-usas-ysp-program#comments

    With Mullholland, we don’t know. Your guess is as good as mine.

  3. tobacco observer Says:

    >>Oh, it’s as likely that Big Tobacco’s lawyers were the ones that made the changes. Since we have no evidence (what was that lawyer’s name, exactly?) this is all just speculation, and equally plausible either way.

    Don’t be silly. What you are suggesting is not only not plausible, its not even possible; tobacco’s counsel simply does not have the ability to do what you say. The only ones that can revise Mulholland’s testimony are Mulholland himself and his counsel.

    This isn’t just speculation; there is abundant evidence of what happened here. . . that’s what makes it so funny! The gov’t was quite literally caught with its pants down. If it were tobacco that rewrote Mulholland’s testimony, then why on earth does every revised statement from Mulholland begin as follows?:

    “A: My understanding from **MY COUNSEL** is that this question is beyond the scope of Order #917, which limits me to expressing my conclusions concerning or relating to my four papers concerning cigarette related issues.”

    Mulholland didn’t even want to testify in this case, and he certainly isn’t using tobacco’s lawyers as his personal ones. More evidence? If it were tobacco that rewrote Mulholland’s testimony, then why on earth did Gene Borio write this yesterday?

    “Webb brought into question changes to the written testimony of Mulholland made by Mulholland’s [and] **FTC LAWYER[s]**.”

    You want the names of the FTC lawyers in question? David Shonka and John Andrew Singer. Both are listed right at the bottom of Mulholland’s corrected deposition. Shonka, by the way, is a senior FTC lawyer who was was one of the FTC lawyers involved in the investigation into Joe Camel ads.

    There is absolutely no need to invoke bizarre conspiracy theories about tobacco inexplicably shooting themselves in the foot; What happened here is as plain as day; its captured in black and white. Tobacco deposed Mulholland, the senior FTC economist, and got him to openly concede everything tobacco has been claiming all along, among other things that:

    1. The FTC carefully scrutinizes claims about tar and nicotine in cigarettes, responds to complaints about these issues, and has done so for decades.
    2. The FTC has known since the inception of the tar and nicotine measurements that they are partially flawed, in part due to “compensation” but believed (and apparently still does) that though flawed, this approach still benefits the public, and FTC’s internal policy reflects this.

    These things aren’t exactly shocking; Mulholland essentially testified that the FTC takes it role seriously and has been monitoring tobacco’s claims for decades doing as good a job as it can do. That’s great, and *should* be a part of the public record. The problem is that this testimony is completely devastating to the gov’ts case since it blatantly contradicts all their claims about tobacco “conspiring” to deceive the public with misleading tar and nicotine numbers. It just completely destroys that entire section of the gov’ts case. Worse, it appears to lay any blame for this “deception” right at the foot of the FTC, whose Congressional mandate is to regulate these cigarette-related claims.

    So, suprise-suprise, after the FTC lawyers were done vetting it, the explicit, plain-as-day testimony exculpating tobacco and giving some insight into the FTC’s activities conveniently “vanished”, leaving this hilariously edited testimony as evidence that the gov’t was caught with its hand in the proverbial cookie jar! Shame on the gov’t here for lacking the moral courage to own up to its own policy.

  4. krueger Says:

    Oh, I see: Big Tobacco wrote every word of this Written Direct, yet somehow can’t revise it or have any influence on its revision. After all, Big Tobacco doesn’t use its power or influence. Sure. Right.

    The truth is, we don’t know how or why the Written Direct got dramatically revised. None of us was there when the revisions were made. Everyone can have his own speculations on this one; thanks for yours. They’re as plausible as any, including completely different ones. It’s all just speculation.

    What we do know: Mulholland and other defense witnesses have ben unable to refute the facts summarized in ASH UK’s report on low tar cigarettes:

    http://www.ash.org.uk/html/regulation/html/big-one.html

    Blaming the FTC is right out of Big Tobacco’s playbook. The industry realized early on that getting FTC’s name behind the numbers would help it in court and in its marketing:

    Marketing of Light Cigarettes
    http://tc.bmjjournals.com/cgi/content/full/11/suppl_1/i18

    The reality is, FTC didn’t make Big Tobacco mislead the public. At the same time, sadly, FTC did little to prevent it. But FTC numbers are far from the whole deception involved here. The deception incorporates numbers, filters, health claims, images, advertising, entire brands created to push the campaign — and cigarettes designed to fool the FTC machines. This deception is deep, wide, and ongoing:

    http://tc.bmjjournals.com/cgi/content/full/13/1/78

    The deception is why Philip Morris lost $10 billion in Illinois:
    http://www.tobacco.neu.edu/litigation/cases/Backgrounders/miles.htm

    The deception is why millions of Americans put off quitting, exactly as the industry wanted.

    The deception is why untold numbers of them got sick and died, exactly as the industry knew would happen.

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