Tobacco On Trial

May 2, 2005, 10:12 PM

The first witness in DOJ’s remedies case, Biostatistician Dr. Timothy Wyant, testified this morning about Smoking-Attributable Health Care Costs for the 1954-2000 “Youth-Addicted Population,” ie, smokers addicted as youths sometime during the period 1954-2000, the period of Defendants’ alleged wrongdoing.

Dr. Wyant presented an interesting animated chart of this cohort. The chart consisted of a series of 46 red bars of slightly different lengths, each one representing the number of youth-addicted smokers for each year. A line in the middle of the chart represented deaths; bars extending below this line turned gray. In 2005, Dr. Wyant testified, about 700,000 of the cohort had already died of smoking-related diseases–the gray bars on the chart showed this to be a relatively miniscule part of the huge cohort of 57 million smokers.

Dr. Wyant moved this group of bars along a timeline from 2005 through to 2050, and as each year’s cohort grew a little older, we saw the death bars growing larger and deeper– the moving chart looked as if a deepening gray cavern were steadily feeding on and engulfing the red mountains above.

The grand total by 2050, when they grey bars had completely engulphed more than half the leading edge phalanx of red bars? Smoking-attributable deaths accumulate to a total of 13.4 million, Dr. Wyant said, and excess medical treatment costs accumulate to $839.8 billion.

Dr. Wyant’s calculations stopped in 2050, but at that time, he said, there would be a projected 17 million Youth-Addicted Smokers still alive.

Dr. Wyant compared smoking-related deaths among this Youth-Addicted Population to the loss of life in each of the US’ wars up until the 1990-91 Gulf War, and found smoking-related deaths by 2050 would be more than 10 times the total US war dead as of 1991 (1,168,836). Defense said nothing about this rather time-frame-challenged comparison.

But RJR’s Peter Bierstecker did ask Dr. Wyant if any of his estimates were actually caused by the defendants’ alleged RICO violations. He emphasized Dr. Wyant’s inability to quantify any Smoking Attributable Deaths, Years of Life Lost, Disease Treatment Years, Health Care Costs or any costs at all that were due to Defendants’ alleged violations.

Dr. Wyant said he had not teased out the data to estimate what the projections would be had there been no RICO violations–he had made no restrictions beyond calculating simple Smoking-Attributable Health Care Costs in that specific population.

Mr. Bierstecker set up a classically impossible hurdle for Dr. Wyant to leap over in his calculations, averring that the only valid way of determining Smoking-Attributable Health Care Costs at all is to compare deaths/costs among a population in today’s world with deaths/costs in a world in which the population never smoked.

A close reading of the transcript of this section will yield some fancy footwork by which Mr. Bierstecker took a bit of advantage of Dr. Wyant’s confusion over a complex question about a complex, 2-part quote in an article which Dr. Wyant had not read. Dr. Wyant confessed the question and quotes had confused him to near-incapacity. At this point, Mr. Bierstecker let stand a simplified version of the question which, if answered affirmatively, would attain the desired result, but by the end of the dialogue, I believe Dr. Wyant was able to maintain an important qualification to his yes answer.

Mr. Bierstecker interrupted his questioning once he felt he had established that the causal effects of smoking were not estimable (without that dream-world control group). He turned to Judge Kessler and said that since Dr. Wyant’s testimony did not relate these costs to defendants’ behavior–or even to smoking itself–he was moving to have the testimony stricken.

Judge Kessler asked, “Because he used one methodology [of estimating costs] instead of another one??” She said Defense may have a basis for discrediting Dr. Wyant’s testimony, but that was a legal argument to be made as to the merits. She refused to strike.

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Trillion Dollar Baby-Boom

Unable to resist the pop reference, I did say ” Trillion Dollar Baby” in the headline, and haven’t mentioned the “T” number once. But it’s true.

I know, I know, $839 billion is still $141 billion short of a trillion, but listen: Dr. Wyant said that if you add in “manifestations of diminished health” through 2050, yes, you would reach costs of $1 trillion. Plus, this figure is only in 2001 dollars.

In his written direct testimony, Dr. Wyant emphasized also that the $839 billion figure only addresses 13 major smoking-related diseases. If you factor in other smoking-related diseases, like cataracts, for example, plus other peripheral disease costs such as nursing home fees, plus damage done to the population outside the smokers themselves (second-hand smoke, damage to the fetus and infant from maternal and/or parental smoking, etc.), the costs do indeed rise.

Dr. Wyant emphasized he has tried to keep his figures conservative, but he did mention in his written direct $1.4 trillion (”for the full range of diseases and conditions that are caused by smoking”) and even $2.3 trillion as feasible estimates, depending on methodology and estimated costs, for this specific population, and only through 2050, when some of the population will be “as young as 62.”

So, no, for those sticklers who hate unsubstantiated puns, “Trillion Dollar Baby” is not really a reach.

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The Defense Never Rests

At the beginning of the day, DOJ attorney Sharon Eubanks excoriated Defense for not officially closing their liability case, and averred that Defense had insisted DOJ formally close theirs at the end of their last liability witness’ testimony.

RJR’s Jonathan Redgrave argued that pending rulings on prior witnesses and exhibits could affect their case. If some rulings went against them, Defense would need the opportunity to provide additional testimony to bring in these very important exhibits.

Because of the need for clarity in the record (”I’m always looking up, or down, the road”), Judge Kessler allowed short submissions from the parties, a process that will take about one week.

Ms. Eubanks said, OK, but DOJ is required to inform the Court of DOJ’s rebuttal evidence, and at the moment, DOJ doesn’t believe it needs a live witness in its rebuttal case. That could change, she warned, depending on the resolution of this issue.

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Scheduling Matters

Dr. Carmona will testify tomorrow, Tuesday, May 3. His 20 pages of written direct will probably only take the morning. Evidentiary matters will consume some part of the afternoon, probably.

Dr. Bazerman’s testimony will begin Wednesday, and possibly extend into Thursday.

There will be no session Monday, May 9. Dr. Eriksen, previously scheduled for Monday, has some sort of eye condition that has delayed his deposition/testimony.

Dr. Gruber will testify on Tuesday, May 10, possibly extending into Wednesday. Court will begin late, at 10 AM.

Dr. Healton will testify Thursday, May 12.

Dr. Eriksen will testify Monday, May 16.

Dr. Fiore will testify Tuesday, May 17.

Matt Myers will testify on Wednesday, May 18, depending on the length of Dr. Fiore’s cross, which promises to be intense.

Defense is still on schedule to begin its remedies case on Monday, May 23rd, but Judge Kessler is not available that day. She has offered to hold court on Friday, May 27, but recognizes it is the Friday before Memorial Day, and the parties may wish to forgo it, or only hold a morning session.

On Wednesday, May 25, Court will start late, at 11 AM.

.Defense is on schedule to finish by the magic date of June 10, or as Judge Kessler termed it, “Freedom Day.”

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Striking Out

At the end of the session, Mr. Bernick addressed Defense’s serious concerns about both Dr. Carmona’s and Dr. Wyant’s testimonies. He told Judge Kessler that Defense would be filing motions to strike these as irrelevant–they don’t even “address a remedy that goes to our conduct.”

As to Dr. Carmona’s testimony, Mr. Bernick said, “They want the Surgeon General to endorse their legal case.”

Judge Kessler was skeptical. She characterized Dr. Carmona’s written direct as “20 pages of testimony, almost all of which repeats quotes from the [2004] Surgeon General’s Report.”

As to the Defense’s written motion to strike, she said, “I’m not going to preclude the Surgeon General of the United States from testifying.”

Mr. Bernick said that despite Judge Kessler’s suggestion to Mr. Bierstecker, Defense did not want to defer their objections to argument. He said it was important that defense not waive its objections, that they be on record, so there would be formal filings to strike. Wyant’s and Carmona’s testimonies don’t support liability, he said, nor do they go to remedies for liability….

“Right,” said Judge Kessler. “Your legal objections are clear, on the record–and overruled.”

At which point, Court ended early, at 12:40 PM

This entry was posted on Monday, May 2nd, 2005 at 9:42 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.