TUE, Day 108: Rubin Slams Fiore Cessation Plan.

May 25, 2005 11:21 am by brettyg

Today DOJ lawyer Patrick Klein cross examined defense witness Dr. Donald Rubin, a Professor of statistics at Harvard and a consultant to the defense.

After a day of vague questioning and non-sequiturs by Klein, Judge Kessler summed up the overall thrust of Dr. Rubin’s testimony with the following question: Using the framework (assessing potential effectiveness of intervention) you described this morning you do not believe Dr. Fiore has put forth a convincing analytical case for the very expensive program he recommended? Dr. Rubin agreed with this summary.

For the bulk of the morning, Klein questioned Dr. Rubin on what measurements he believed should be used when assessing the potential effectiveness of a Cessation Program. The main components Dr. Rubin mentioned are Efficacy and Participation Rate. Dr. Rubin defined efficacy as the effect of the intervention on the subjects versus effectiveness which he defined as the effect or potential effect of the intervention on the general population.

Rubin focused on the importance of defining subpopulations when assessing the participation rates of a program. As he said in his Written Direct,

“You would, for each component in the national cessation plan, and for each demographic and smoking behavior subpopulation, estimate efficacy — the increase in the cessation rate for participants caused by the program.”

Rubin repeatedly labeled the participants in randomized cessation studies as a specific subpopulation. Dr. Rubin implied that people willing to participate in randomized studies differ from the general population.. In his testimony, Dr. Rubin also discussed racial and ethnic groups as subpopulations. He said in his Written Direct,

“[J]ust as Surgeon General Carmona testified in his written direct (at 16-17) that smoking cessation initiatives must be ‘culturally competent and targeted’ toward specific ‘racial/ethnic populations,’ so, too, it is reasonable to anticipate that any effect of the Defendants’ allegedly fraudulent statements could have been different in different subpopulations.”

“Subpopulations,” he said on the stand, “respond differently to the same intervention.”

Klein responded to this by presenting Dr. Rubin with a number of studies which found cessation interventions to be effective across all subgroups. In addition Klein presented a CDC document titled “Best Practices for Comprehensive Tobacco Control,” which did mention variables associated with lower cessation rates but the document concluded that the recommended Cessation treatment was still effective in all these subgroups. The document suggested that the delivery of Cessation program not be based on Specialized Assessments which would be used to target subpopulations.

Klein also made clear that the National Quitline suggested by Dr. Fiore was not some gigantic government behemoth. States would still have the freedom and power to modify their own quitlines to the needs of their residents.

Later a brief moment occurred in the courtroom when everyone present probably thought they were working in the wrong profession (except the defense). Dr. Rubin was asked if he was paid more than $2,000,000 by the tobacco industry in the last five years. Dr. Rubin answered, maybe… that sounds correct.

The witness was briefly re-examined by the defense. Dr. Rubin was asked if the methods or framework he discussed earlier are necessary to do valid reliable research. He replied yes, again suggesting that Dr. Fiore’s methods were incomplete due to his lack of focus on subpopulations.

8 Responses to “TUE, Day 108: Rubin Slams Fiore Cessation Plan.”

  1. tobacco observer Says:

    Again, the 600 pound Gorilla in the room. . .From the DCCA:

    “Section 1964(a) provides jurisdiction to issue a variety of
    orders “to prevent and restrain” RICO violations. This language
    indicates that the jurisdiction is limited to forward-looking
    remedies that are aimed at future violations. . . .Congress intended the words “prevent and restrain” to authorize only a tailored, forward- looking remedy.”

    Leaving aside, for the moment, the question of whether or not these quitlines actually help people quit smoking, what does a national quitline have to do with future RICO violations?

    Which future RICO violation would a quitline “prevent” or “restrain”?

    How is this “remedy” (which presumeably tobacco would have to pay for whether or not it ever violated RICO again) “specifically tailored” to future RICO violations?

    As far as I can tell, this remedy has nothing whatever to do with future violations, and as such is simply not permissible under RICO 1964(a) case law.

  2. krueger Says:

    Again, I’m reminded of legal analysis by financial analysts:

    “tobacco analysts…are all keen students of law, as they must be since their industry’s outlook is completely dominated by its legal issues. But they always seem to read the law very narrowly, in the way that favors their clients, er, I mean companies.”

    Wake-Up Call / The Tobacco Tar Pit, David Smith, July 17, 2000

    Reading RICO as unable to provide the remedy in question, that’s one reading of the law, sure. A narrow reading of the law. In a way that favors Big Tobacco. That’s the part that reminds me of legal analysis by financial analysts.

    I prefer to get my legal analysis from lawyers. Here’s what a lawyer says about remedies in this case: “The Court also could require Defendants to fund an independent program to assist smokers with smoking cessation.”

    http://tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm

    How would a particular remedy have to connect with Big Tobacco’s RICO violations? I don’t know. I’m not a lawyer. Here’s what a lawyer says:

    “The judge has wide latitude to fashion a judgment that fits the Defendants’ violations of the law.”

    http://tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm

  3. Pro_Business Says:

    Funny, but I don’t think a bunch of lawyers from Northeastern who have a vested FINANCIAL interest in destroying big tobacco is a reliable source of legal analysis. Let’s try to stay away from this skewed, biased commentary and try to focus on the facts and on the people who will really decide the outcome of this case.

    Every single one of the DOJ’s proposed remedies are forward-looking. All we need to do is look at Kessler’s remarks on this:

    “The Government’s Memorandum [DOJ’s proposed remedies] . . . reads as if Judge Sentelle had never written his Opinion. . . . . Virtually all of the arguments made by the United States in its Memorandum were arguments relied upon by this Court in its original opinion and by Judge Tatel in his dissent. The fact of the matter is that those arguments were rejected by Judge Sentelle in his 2-1 Opinion and are simply not the law to be followed at this time. Judge Sentelle’s Opinion, as this Court reads it, simply does not permit non-disgorgement remedies to prevent and restrain the effects of past violations of RICO.”

    ref: http://www.tobacco-on-trial.com/archives/2005/02/28/kessler-orders-delay-warns-doj-to-adhere-to-appeals-court-ruling

    Basically, Kessler is telling the DOJ that their proposed remedies will never make it past Sentelle.

    The facts are clear. Above Kessler are many justices (9 of 12 to be exact) who are level-headed enough to understand that the DOJ is out of line. It doesn’t matter what anti-tobacco lawyers from Northeastern write or say. At the end of the day, all of the proposed remedies that the DOJ puts forth (assuming Tobacco is found liable) will be struck down either by Kessler or the Appeals Court above her.

    In the future, I recommend you refer to Justice Sentelle’s opinion and not rely on the opinions of the TCRC.

  4. krueger Says:

    I understand: Northeastern University is biased; for the unbiased account, we should go to Big Tobacco.

    By the way, I’m pro-business too. I like business, I like products, I like sales, I like profits, I like commerce, and I participate happily and profitably in all of the above. I like big business, I like small business, and I like all sizes in between. I have myself been in the business world for 20 years. I don’t think it’s good business if the product used as intended addicts, sickens, and kills the customer. Fortunately, there’s only one product that does that, and only one business that spreads it. There’s a lot to like in every other product and business, and I do.

    Again, I’m sorry I can’t help with the legal analysis; I’m not a lawyer. Here’s what a lawyer says about the matter. This one is free from the taint of working at that horrible, horrible, biased institution, Northeastern University. He’s G. Robert Blakey, professor of law at Notre Dame Law School. He happens to be the author of RICO. For his legal opinion I would provide a URL to Big Tobacco’s website, except for some reason I don’t find it there. Here it is:

    http://tobacco.neu.edu/litigation/cases/DOJ/Blakey_Congress.htm

  5. tobacco observer Says:

    Again a rehash of the same links, the same stale quotes from academic anti-tobacco activists who have collectively never successfully prosecuted a single case against tobacco. Frankly, I find it impossible to trust their opinions in this case when said opinions have already been explicitly disproven by real world decisions:

    Quote from Blakely from link above:
    >While § 1964(a) contains the phrase “prevent and restrain,” the legislative history indicates that this language was not intended to confine the courts to purely forward-looking remedies. The list is “illustrative, not exhaustive.” S. Rep. No. 91-617 at 160 (“the list is not exhaustive”).
    >Tobacco profits are, like illicit drug profits, subject to forfeiture criminally and disgorgement civilly.

    So needless to say, the gov’t made these very arguments at appeal, and RICO architect or not, the DCCAs ruling explicitly contradicted Prof. Blakely’s legal opinions.

    As for Ed Sweda, the list of proposed remedies from his press release was exactly parrotted from the gov’t right after their disgorgement loss (note the date of the press release quoted above). Too bad for Sweda that a few weeks later, Judge Kessler chastised the gov’t for this list of impermissible remedies and admonished the following:

    Judge Kessler: “Judge Sentelle’s Opinion, as this Court reads it, simply does not permit non-disgorgement remedies to prevent and restrain the effects of past violations of RICO.”

    Its not *me* who thinks that the DCCA has severely limited the gov’ts ability to obtain injuctive relief in this case. Its not the tobacco analysts, and its not Big Tobacco. Its the DCCA and Judge Kessler. They have been crystal clear about what is and what isn’t allowed here.

    Again, if you want to believe Sweda because he’s a lawyer and has credentials as an anti-tobacco activist, go right ahead. If you think Blakely’s credentials as a RICO author mean his opinions overrule the courts that actually decide these matters, great. But from where I’m sitting, the opinions of these gaggle of lawyers have already been proven wrong. Their opinions, at least as quoted above, appear stale and irrelevant.

    I don’t see how most of the gov’t proposed remedies meet the concrete standards put forth by the DCCA, especially the tobacco quitline proposal, and the youth smoking requirements.

  6. krueger Says:

    Once again, a narrow reading of the law, in a way that favors Big Tobacco. And more bashing of jurists who disagree with that reading. Well, be my guest.

    Cnce again this reminds me of legal analyis by financial analysts. As columnist David Smith observes, “they always seem to read the law very narrowly, in the way that favors their clients, er, I mean companies.”

    Smith finds another characteristic of tobacco financial analysts: “as a result of being so wrong for so long, Wall Street’s tobacco analysts have probably cost investors as much money as anyone engaged in lawful activities there ever has.”

    That’s another similarity here. For instance, the claim that the Campaign for Tobacco-Free Kids is a “tobacco-banning organization” is simply wrong:

    http://www.tobacco-on-trial.com/archives/2005/04/07/day-90-szymanczyk-grilled-on-corporate-responsibility#comment-404

    Getting the facts wrong, narrowly interpreting the law to favor of Big Tobacco, citing only the decisions that favor Big Tobacco; that’s what reminds me of legal analysis by financial analysts.

    I prefer legal analysis by lawyers.

    It turns out lawyers have legal training. That’s helpful when you’re considering a legal case in a court of law.

    And lawyers don’t have the financial analyst track record of being so wrong for so long on Big Tobacco’s legal liabilities.

    But please, feel free to bash lawyers who come to conclusions you don’t like.

    The rest of us are free to read legal analysis by lawyers, who advise that this court has the power to order remedies in this case:

    http://www.tobacco.neu.edu/litigation/cases/DOJ/

    http://www.tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm

  7. tobacco observer Says:

    >>I prefer legal analysis by lawyers.

    I prefer correct legal analysis (see below).

    >>It turns out lawyers have legal training. That’s helpful when you’re considering a legal case in a court of law.

    That’s funny. You don’t know a lot of lawyers, do you?

    There are all kinds of lawyers, and lawyers on both sides of these arguments have legal training. That doesn’t necessarily make their opinions or arguments right, let alone even competent.

    I’m sure that like Prof. Blakely, the DOJ’s lawyers thought they were right about disgorgement, right up to (and possibly even after) their arguments were rejected by the DCCA majority. These same gov’t lawyers probably also thought they were correct before the entire Medicare recovery portion of this lawsuit was tossed out of court without trial five years ago.

    Perhaps these same lawyers still believe that the non-RICO related remedies they have proposed (like smoking cessation programs) have a better than a snowballs’ chance in hell of surviving legal review. I don’t know that. . .but I do know that just because they are lawyers, that doesn’t make them right.

    Incidentally, I’ve heard that the Federal appellate judges who rejected the DOJ’s questionable attempt to expand the civil RICO act also have legal training. So does Judge Kessler, and didn’t she say that the DOJ had to comply with the DCCA’s opinion on remedies? My own legal “training” suggests that if one wishes to decide what is and isn’t legally available to the gov’t in this case, these judges’ recent opinions are probably the best place to start to form an opinion, rather than the stale analyses of self-described anti-tobacco activist lawyers. But I never went to a prestigious law school like Northeastern, so you should probably disregard what I have to say.

    >>And lawyers don’t have the financial analyst track record of being so wrong for so long on Big Tobacco’s legal liabilities.

    To the contrary, the litigation record of attourneys for tobacco plaintiffs is FAR worse than any financial analysts. Tobacco has won literally 99.9% of all cases filed against it, suprisingly giving it one of the most enviable litigation records in the history of American business jurisprudence. Though its legal defense expenses have been undoubtedly higher, compared to other major American corporate defendants (eg Walmart, McDonalds, Microsoft, etc), so far tobacco has had to pay out suprisingly little in the way of damages to plaintiffs. Even Michael Piuze, the lawyer who won two high-profile tobacco cases in CA, has announced that he’s left the tobacco lawsuit business. With disgorgement gone now, its unlikely this case is going to change that enviable record.

    >>But please, feel free to bash lawyers who come to conclusions you don’t like.

    Repectfully, I’m not “bashing” anyone. I’m just pointing out that what Prof Blakely said five years ago, and what Ed Sweda said four months ago about potential remedies simply don’t apply anymore. What I “like” has nothing to do with this; Those opinions have already been superceded by developments in this case, specifically the decision by the DC circuit court of appeals that has explicitly rejected disgorgement and non-RICO linked remedies, and Judge Kesslers explicit instructions that available remedies must comply.

    The funny thing is that even the lawyers in question would probably readily concede this. But “feel free” to keep posting links to their stale remarks anyway, if that’s where you prefer to get your legal advice. After all, if a few lawyers think the gov’t can get what its asking for, its going to actually happen, right?

    >>Smith finds another characteristic of tobacco financial analysts: “as a result of being so wrong for so long, Wall Street’s tobacco analysts have probably cost investors as much money as anyone engaged in lawful activities there ever has.

    That’s simply rubbish. When did Smith write that. . .1998? Has this guy even heard of the internet bubble? Not a single major domestic tobacco company has folded as a result of litigation in the past ten years; in fact in terms of historical return, apparently Philip Morris/Altria group has been the single highest returning stock in the history of the S&P500:

    http://www.freerepublic.com/focus/f-news/1398087/posts

    Now take a look at more recent developments:

    http://finance.yahoo.com/q/bc?t=5y&s=MO&l=off&z=l&q=l&c=rai&c=%5EGSPC&c=%5EDJI

    Note that the stock of the two biggest defendands in this suit, RJ Reynolds and Altria Group, have vastly outperfomed the general market over the last five years. Any investor savvy enough to have disregarded the sort of nonsense put out by this Smith person and bought/held onto tobacco stocks since the inception of this RICO suit would have done extremely well. I strongly suspect that not all of the analysts were recommending “buys” all this time, but again, any that were have turned out retrospectively to have been correct!

  8. krueger Says:

    I have no legal training or legal credentials of any sort. So I won’t attempt legal analysis. In my experience legal analysis by people who aren’t lawyers works about as well as code written by people who aren’t programmers. I don’t depend on either. I get my legal analysis from lawyers:

    http://www.tobacco.neu.edu/litigation/cases/DOJ/ccadc_disgorgement.htm

    “When did Smith write that. . .1998?”

    Wake-Up Call / The Tobacco Tar Pit, David Smith, Monday July 17, 2000
    Tobacco analysts are a unique and distinctive group on Wall Street. For one thing, they would to a man prefer to flack for the tobacco industry than actually make a correct investment recommendation and be seen to make one. As a result of being so wrong for so long…

    “the stock of the two biggest defendands in this suit, RJ Reynolds and Altria Group, have vastly outperfomed the general market over the last five years.”

    Over the same period, their product killed over two million Americans.

    Over the same period, Big Tobacco pushed that produt with over $60 billion of marketing, advertising, and promotion that made it look sexy, attractive, and cool.

    Over the same period, six million more people got addicted to the product, almost all as children.

    Over that same period, 215,000 children were left to grow up without a Mom or Dad because the product killed their Mom or Dad.

    Shall we celebrate the big profit Big Tobacco made here?

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