THU, DAY 104: Legacy on the Hot Seat (2)

May 16, 2005 7:39 pm by Gene Borio

You had to feel for Dr. Cheryl Healton as she trudged wearily from the witness stand Thursday afternoon. She seemed to be trying to buck up after having spent a full day enduring tough questioning–and about an hour getting boxed about the ears. She’d done so well too, strongly answering Mr. Webb’s tough interrogations, the analytical scientist integrated so seamlessly with the sharp CEO. It was amazing to see both personas function so smoothly–and, at times, both would be banished by an easy, winning smile. Her confidence was not shaken throughout several hours of Philip Morris attorney Dan Webb’s unrelenting pressure.

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Webb Cuts along the Bias

Mr. Webb began his cross with an attack meant to give Judge Kessler pause about Dr. Healton’s potential bias.

1. He accused Dr. Healton of accepting an unsecured loan for almost $1 million from Legacy for purchase of a DC house.

2. Mr. Webb asked, “Is it true that when ALF realized its funding was drying up, ALF began a plan to find a way to leverage its ability to get involved in tobacco litigation and use that as a way to get more money from tobacco companies?” He accused Legacy of funding an organization which filed an amicus curiae brief in this trial that argued for any judgement money awarded to go to Legacy for the continuation of its anti-youth smoking campaign. He referred to Legacy’s “financial crisis,” noting that the states had plenty of Settlement monies to fund the campaign should they want to; he indicated that Dr. Healton was testifying here basically to convince Judge Kessler to award Legacy funds to continue its campaign.

3. He accused Legacy of not disclosing the fact that it had funded a study on its campaign’s effectiveness.

With all that mud being thrown at her, it took a lot of work to dig herself out, but she was up to the task, and did fairly well in cleaning up the smears:

1. The house loan was actually a kind of pass-through: contracts show the bank provided Legacy with the unsecured loan, which was passed along to Dr. Healton, secured through her assets.

2. The group that filed an amicus curiae in this cae, The Citizens’ Commission to Protect the Truth, was also funded by Legacy as a kind of pass-through. CCPT is a group Joseph Califano had assembled of all former U.S. Secretaries of Health, Education and Welfare and Health and Human Services; all former U.S. Surgeons General; and all former Directors of the Centers for Disease Control and Prevention. Apparently the Attorneys General wanted to fund it, but since NAAG doesn’t make grants, Legacy agreed to accept the money and cut the checks. Dr. Healton only found out about the contents of the amicus brief from internet reports.

We agreed to take the money and pass it on. . . .It’s our money simply because NAAG gave it to us for this purpose.

3. The June 2002 American Journal of Public Health article, ” Getting to the Truth: Evaluating National Tobacco Countermarketing Campaigns,”listed Dr. Healton as a co-author, but neglected to list Legacy in the Acknowledgments. Dr. Healton said she was “about ready to fall off my chair” upon seeing this, and that it should have been there, but all who care about this kind of work would know this was a Legacy study, one of many that Legacy is credited with. She said funding issues were usually dealt with by the journal itself and that she remembered signing an AJPH form acknowledging Legacy funding.

Certainly Mr. Webb’s bias charges are strong enough that Judge Kessler will be forced to consider them, but, Dr. Healton’s explanations seemed fairly reasonable. However, other entities which think they may one day be testifying against a tobacco company might want to consider structuring their financial dealings to scrupulously avoid any hint of an unpleasant appearance–and to double-check the Acknowledgments sections of any studies they fund.

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Mr. Webb then attacked the science of that 2002 study which, based on the first 2 Legacy Media Tracking Surveys (LMTS), “showed that exposure to Think. Dont Smoke advertisements was associated with a 23% increase in the odds of reporting an intent to smoke in the next year.” (Dr. Healton’s Written Direct Examination)

Dr. Healton’s Written Direct goes into some detail about the tortuous series of meetings and letters about this study between Legacy personnel, including Dr. Healton, and Philip Morris USA Youth Smoking Prevention directors Dr. Carolyn Levy and her successor Howard Willard. Dr. Healton recounted Philip Morris USA’s continual demands for the raw LMTS data, which was eventually made public upon publication of the article, while Philip Morris USA has still refused to release its own outcome data on its studies of the effectiveness of TDS. Even after Legacy’s public release of the data, Philip Morris USA continued to critique the study in letters to Legacy. Dr. Healton writes,

After a lengthy series of letters, I finally informed Philip Morris we would not engage in further private discussions regarding the merits of the study. Debating the merits of the findings in a private forum simply is not appropriate once those results have been published. Under accepted standards of scientific discourse, disagreements with regard to scientific findings are conducted in the public arena so that the issues are squarely in the public domain. For whatever reason, Philip Morris has declined to take this approach.

Mr. Webb in live cross repeated Philip Morris USA’s allegation that Legacy, in comparing recall of the two groups’ ads, had not accounted for “40% of PMUSA’s YSP ads,” because, among other reasons, PMU’s target audience was 10-14 year olds, while Truth’s was 12-17. Dr. Healton argued this would not have affected the results, as the study focused on the 12-14 year age group.

Mr. Webb also accused Legacy of asking questions only of 2 TDS ads, whereas there were actually 4 running at the time. The issue had apparently been a contentious one in the discussions with Mr. Willard, and Dr. Healton said she had no proof of additional ads running–she had specifically asked Mr. Willard if the ads he claimed were running were a local or national buy (the study only dealt with national campaigns).

Mr. Webb claimed Legacy had been told they were missing the TDS ads, and just chose not to believe it. Dr. Healton said the ads didn’t show up on the video monitoring service, and PM could offer no proof of its claim the ads ran. “I found it fairly telling,” Dr. Healton said.

“When asked a direct question, ‘Were those ads running nationally?’ Mr. Willard declined to answer me.

Dr. Healton then began to speculate on why PMU took the TDS ads off the air. It was during this exchange that the contentious questioning drew a response from Judge Kessler, who said, “Let’s get back to orderly procedure,” and advised Dr. Healton that it would “serve everyone’s purpose if you only answer the questions asked.”

But the contentiousness of the cross only reflected the apparent contentiousness of the PMU/Legacy meetings. Dr. Healton had referred earlier to PMU’s “litany of complaints,” and in apparent response, some Legacy document/website writers apparently hedged their bets. One such website footnote said the “ads in the survey were chosen based on reports from a commercial monitoring service and may not capture all of the campaign’s ads.” [italics added.]

Mr. Webb had a fine time grilling Dr. Healton about this, but she said “I believe that was added because of concern of the tone of the letters going back and forth.”

Mr. Webb continued to accuse Dr. Healton of knowing the Legacy study omitted 70%(!) of TDS ads, but Dr. Healton insisted, “we had no proof from you.”

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Mr. Webb claimed youth smoking, and risky behaviors in general, were all on a downward trend by the time Legacy’s ads began running, so it was perhaps presumptuous for Dr. Healton in her written direct to claim that “the truth campaign contributed approximately 22% of the overall decline in youth smoking rates between 2000 and 2002,” as shown by the Legacy study in the March, 2005 American Journal of Public Health.

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YSP as a MSA Mandate

Mr. Webb tried to make it seem as if Legacy and Philip Morris USA’s YSP programs were competitors in the marketplace–they each produce ads, fund third parties’ efforts, etc. He pointed out that Philip Morris USA spends $100 million a year on YSP. Then he said that “under express terms of the MSA, that Philip Morris USA and other companies are required to establish corporate programs that assist in the reduction of tobacco use.”

Dr. Healton said, “I’d like to see that wording.”

Mr. Webb showed her. From the MSA:

(l) Corporate Culture Commitments Related to Youth Access and Consumption. Beginning 180 days after the MSA Execution Date each Participating Manufacturer shall:

1) promulgate or reaffirm corporate principles that express and explain its commitment to comply with the provisions of this Agreement and the reduction of use of Tobacco Products by Youth, and clearly and regularly communicate to its employees and customers its commitment to assist in the reduction of Youth use of Tobacco Products;

(2) designate an executive level manager (and provide written notice to NAAG of such designation) to identify methods to reduce Youth access to, and the incidence of Youth consumption of, Tobacco Products; and

(3) encourage its employees to identify additional methods to reduce Youth access to, and the incidence of Youth consumption of, Tobacco Products.

Dr. Healton indicated this language meant that the company to work internally to correct its previous bad behavior.

Mr. Webb asked, is it your testimony that the tobacco companies should promulgate such corporate principles as an express commitment, should make them a part of the corporate culture–and then do absolutely nothing about them?

Dr. Healton said, you should comply with the agreement–reduce your marketing, imagery, cartoon characters, all of which were going on at the time of the MSA: “you should control yourselves.” She said she’d spoken with VT AG Bill Sorrell and WA AG Christine Gregoire specifically about this section, and it was basically “telling you to do business differently–within your own company.”

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Vilification Blues

Dr. Healton wore a black jacket over a white top, with a short string of pearls. Her straight dark-blonde hair flowed down from an off-center part, breaking into yellow waves on her shoulders. As she perched on the witness stand, tough, relaxed and smiling between these grueling bouts of testimony, she could at times, from gallery distance, look like a high school valedictorian waiting for the cameraman to take her yearbook picture.

But Mr. Webb’s interrogation juggernaut was relentless, and he certainly seemed to save the most troubling questions for last. Near the end of the day, Mr. Webb lowered the hammer. He cited the part of the Written Direct in which Dr. Healton talked about Philip Morris USA’s reaction to the truth ads. Did you create those ads with the knowledge you were in direct violation of the MSA section that prohibited ALF from developing ads that were personal attacks, Mr. Webb asked.

For the first time, Dr. Healton seemed unsure. “Can I consult with my attorney?” she asked. ” I don’t know if I can answer that.”

Judge Kessler said that she was aware there was potential litigation, and that Dr. Healton would “have to do your best to answer.”

Now Mr. Webb had Dr. Healton where he wanted, because any answers she gave here could be used against Legacy in Delaware’s Lorillard v. American Legacy Foundation case, which deals with this very issue and which is yet to be decided.

From the MSA:

(h) Foundation Activities. The Foundation shall not engage in, nor shall any of the Foundation’s money be used to engage in, any political activities or lobbying, including, but not limited to, support of or opposition to candidates, ballot initiatives, referenda or other similar activities. The National Public Education Fund shall be used only for public education and advertising regarding the addictiveness, health effects, and social costs related to the use of tobacco products and shall not be used for any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively.

As Mr. Webb detailed various Legacy commercials (the truth videos were given rapt attention by the Philip Morris USA attorneys especially. Mr. Frederick and Ms. Schwarzschild seemed more emotionally on edge than I have seen them before), the tension was thick with every question, Dr. Healton undoubtedly had to consider how her answers would affect not just this case, but the Lorillard case also, and if there were a number of pregnant pauses, it was because she was answering for two.

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Sand Dunes And Salty Air

The perils of testifying in this case were brought into even sharper relief when it became clear that Dr. Healton would not get finished today, and might have to be called back Monday. Since her planned family vacation to Cape Cod was scheduled for Saturday, with a Wednesday return, “it would mean cancelling the trip entirely,” Ms. Eubanks told Judge Kessler. However, since there have turned up a couple of “dark days,” she will finish her testimony this Thursday, May 19.

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