TUE, DAY 99: Surgeon General Goes to War–against Mr. Bernick

May 3, 2005 10:38 am by Gene Borio

Surgeon General Richard Carmona took the stand this morning, looking tanned, fit and alert, in a Surgeon General’s uniform that, on him, actually did look military.

Dr. Carmona would need all his battle-honed wits about him In an unexpectedly tense and important morning of testimony, as RJR/BW’s David Bernick launched an powerful if civilized and respectful (think the beginning of WW I) attack on his written direct examination.

Mr. Bernick sought to prove that, with all his expert knowledge, and that of the coauthors of the 2004 Surgeon General’s Report, nowhere in the report are any specific recommendations made that would correlate with the DOJ’s proposed remedies such as a national Quitline, raised excise taxes or any other elements of a “comprehensive tobacco control program.”

Mr. Bernick also tried to establish that such recommendations were missing because none met “the gold standard” of conclusive scientific evidence of efficacy.

5 Responses to “TUE, DAY 99: Surgeon General Goes to War–against Mr. Bernick”

  1. krueger Says:

    “Mr. Bernick also tried to establish that such recommendations were missing because none met ‘the gold standard’ of conclusive scientific evidence of efficacy.”

    Classic tobacco industry hypocrisy.

    Over the last 50 years this industry has spent roughly five hundred billion dollars pushing smoking. It has never required a gold standard of conclusive scientific evidence of efficacy for its pro-smoking campaigns. Not one dime has been held up.

    Indeed, imagine a marketing executive at Philip Morris or RJR or BAT saying, “WAIT! We can’t do this cigarette promotion. We don’t have CONCLUSIVE SCIENTIFIC EVIDENCE OF EFFICACY so it doesn’t meet the GOLD STANDARD so we can’t do it.” I don’t think so.

    No, the idea we can’t do anything until impossible standards are met is only for others. The industry never requires it of itself. It crafts highly effective pro-smoking campaigns without requiring perfection in measurement.

    What’s behind this hypocrisy: delay.

    “A demand for scientific proof is always a formula for inaction and delay of the guilty…in fact scientific proof has never been, is not and should not be the basis for political and legal action”

    BAT scientist S J Green, in a moment of (private) honesty
    http://www.ash.org.uk/html/conduct/html/tobexpld1.html

    When Bernick calls for a gold standard, he’s just calling for more delay.

    Evolution of tobacco industry court rhetoric, the short form:

    We didn’t do it.

    We didn’t do it, and we promise not to do it any more.

    We didn’t do it, and we promise not to do it any more, but if we did or we will, you can’t do anything about that, because you don’t have the perfect thing to do.

    Yeah.

    And while we wait for the perfect thing to do, Big Tobacco spends $12 billion a year on pro-smoking messages. That’s what delay means here. It won’t delay pro-smoking camnpaigns.

  2. tobacco observer Says:

    “A demand for scientific proof is always a formula for inaction and delay of the guilty…in fact scientific proof has never been, is not and should not be the basis for political and legal action”
    ***

    This is simply not true, and I think these statements arent reflective of what is going on in the courtroom right now.

    Thank goodness, the US Supreme Court ruled in the influential Daubert Vs. Dow Merrell case (1993), and expanded via other case law, that expert testimony in Federal courtrooms actually *IS* required to meet various burdens of scientific proof, including peer review.

    Its a standard that cuts both ways, as it applies equally to the plaintiffs and to the defendants.

    Bernick isn’t posturing; he is simply asking for the gov’t experts testimony to meet the burden of proof required of them by case law!

    Specifically, if the Surgeon General’s recommendations can’t meet that standard, then they aren’t admissible. In a similar vein, today’s witness, Dr. Bazerman apparently had serious trouble in regards to whether or not his recommendations met the Daubert standard, and was called out on it by Judge Kessler.

  3. krueger Says:

    “a standard that cuts both ways”

    You would think so. But this industry has never seen it that way. For decades Big Tobacco has declared that everyone else must meet standards of evidence that it never imposes on itself.

    The product causes disease? Oh, that’s unproven. You can’t say it does until you have proof, scientific proof, conclusive scientific proof. The gold standard.

    Smokefree hurts business? Oh, that’s proven. We have these opinions right here. Standards of evidence? What standards? What?

    The amazing shifting standard is a hallmark of the tobacco industry. Whether it can get it to fly in this court is another question. But it looks like it’s trying.

  4. tobacco observer Says:

    You would think so. But this industry has never seen it that way. For decades Big Tobacco has declared that everyone else must meet standards of evidence that it never imposes on itself.

    The amazing shifting standard is a hallmark of the tobacco industry. Whether it can get it to fly in this court is another question. But it looks like it’s trying.
    *******

    Tobacco doesn’t make nor enforce the rules here. The standard in question was established by the Supreme Court of the USA.

    Its up to Judge Kessler to see that the appropriate standards for expert testimony are applied fairly in her courtroom, not Tobacco and not the gov’t.

    Applying these legal standards, she seems to have found at least one of the gov’ts expert witnesses somewhat wanting with regards to these standards.

    And yes, it does seem somewhat ironic that to make their case the gov’t apparently needs to resort to the same sort of junk science that they are accusing tobacco of, but considering the impotence of their current case sans disgorgement, thats not much of a suprise.

  5. krueger Says:

    “the rules here”

    Again: this trial is not all about what happens inside the courtroom. If it were, we would not for instance see Big Tobacco’s lawyers making special presentations to the press outside the courtroom:

    http://www.tobacco-on-trial.com/archives/2004/09/23/late-morning-sessionbernick-interview

    No, this trial is also about PR. Big Tobacco polishes its image both inside and outside the courtroom. It attacks the messenger both inside and outside the courtroom. Its legal strategies in court are related to its strategies elsewhere.

    That’s why Big Tobacco’s hypocrisy is relevant here. It reeks of hypocrisy for Big Tobacco to push to delay anti-smoking efforts until a gold standard of scientific proof arrives. Big Tobacco never requires that standard of itself.

    For instance, Big Tobacco’s economic “studies” on smokefree workplaces hardly meet the gold standard. I guess Daubert must have been on vacation that day.

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