Defendants Undertook Joint Efforts to Undermine and Discredit the Scientific Consensus that ETS Causes Disease

Defendants Undertook Joint Efforts to Undermine and Discredit the Scientific Consensus that ETS Causes Disease

¶3435. As described above, Defendants recognized from the mid-1970s forward that the health effects of passive smoking posed a profound threat to industry viability and cigarette profits, through (1) increasing numbers of smoking restrictions; (2) making smoking "socially unacceptable"; and (3) reducing the number of starter smokers. This recognition resulted in concerted, international action by Defendants and other members of the industry to meet the passive smoking threat head on.

Defendants Acted Through a Web of Coordinated and Interrelated International and Domestic Organizations

1975-1980: The Tobacco Institute ETS Advisory Group

¶3436. Defendants set up the Research Liaison Committee ("RLC") in 1974 to collectively assess and guide research that was jointly funded and managed by the companies. The RLC was comprised of senior executives and industry attorneys. A subcommittee or "Advisory Group" to the RLC, including outside attorneys Don Hoel and Ed Jacob, was directed in 1975 to consider and recommend research related to the emerging issue of passive smoking. The RLC meetings in 1976 were staffed by company general counsel such as Cy Hetsko (American Brands) and Alex Holtzman (Philip Morris). BWX0007549-BWX0007588 at 7575-7576 (US 20286); 1003293761-3763 (US 86502); 500294698-4698 (US 24145); 1003293752-3753 (US 20169).

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¶3437. Projects recommended by this Advisory Group to the RLC were presented to and approved for funding by the Tobacco Institute's Committee of Counsel, and funded by Defendants as both CTR Special Projects and Special Account #4 projects. 1003294930-4933 at 4931-4932 (US 23416); 503673145-3146 (US 86405); 1000255997-6001 (US 20086).

¶3438. The activities of the Advisory Group, referred to in some documents as the "Public Smoking Advisory Group," were kept confidential. According to Hoel's summary of the October 2, 1975 meeting of the group, and confirmed in the notes of the same meeting by Philip Morris's Bill Dunn and Ray Fagan:

All communications with potential researchers should be kept in strict confidence (i.e., the submission of a proposal should not later appear in a researcher's curriculum vitae). Potential researchers should be instructed not to place individual company names on proposals. Finally, the proposals should be labeled "DRAFT" and should not contain language of the type discussed.

¶1003294930-4933 at 4931-4932 (US 23416); 1000205071-5073 (US 20079).

¶3439. A handwritten Philip Morris summary of the November 5, 1975 meeting of the Advisory Group recorded that: "Ed Jacob suggested that no further formal minutes [of meetings] be made -- also all should destroy [crossed-out] remove notes and previous minutes from corporate files." 1003294811-4814 at 4811 (US 23402).

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¶3440. Other documents establish that the actions of the Advisory Group resulted in the funding of several ETS-related projects through CTR Special Projects and Special Account 4 throughout the late 1970s and into the early 1980s. These projects included work by John Salvaggio, Response Analysis, Stanford Research Institute (SRI) and others. 1005122237-2240 (US 20215); 1005122267-2271 (US 20219).

¶3441. In September 1984, the Committee of Counsel directed Donald Hoel to reconstitute and reconvene the committee he had helped coordinate in the 1970s to manage Defendants' passive smoking efforts. This new group was called the Tobacco Institute ETS Advisory Group (TI- ETSAG), sometimes referred to as the "Hoel Committee" after its chairman. 2015029667 (US 20315); Green TT, 11/15/04, 5975:23-5976:7.

¶3442. The TI-ETSAG existed from 1984 to 1988, when its mission was transferred to the Center for Indoor Air Research, or CIAR. 2023054167-4167 (US 75232); 511252621-2626 (US 51554).

¶3443. The TI-ETSAG was made up of representatives from the cigarette manufacturer Defendants, in-house counsel, outside law firm attorneys, and public relations experts from the Tobacco Institute. In addition to Hoel, some of the committee members included John Rupp of Covington & Burling, Lorillard's Alexander Spears, Reynolds scientists Charles Green and Guy Oldaker, Reynolds in-house counsel Mary Ward, Philip Morris scientists Tom Osdene and Bob Pages, Brown & Williamson scientist Gil Esterle, and Marvin Kastenbaum, and the Tobacco Institute's Bill Kloepfer and Charles Waite. The group met monthly. 2021004058-4064 (US 20339); TI00610153-TI00610154 (US 62064).

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¶3444. Liggett and American Tobacco did not participate directly, but they contributed funding to the committee activities. 2021004058-4064 at 4058 (US 20339); Rupp TT, 10/27/04, 4009:4-16.

¶3445. A Philip Morris document dated February 25, 1986 stated the mission of the ETSAG in these terms: "Solicit and review proposals for the conduct of ETS-related research that will be helpful to the industry. Recommend (to the Committee of Counsel) that approved projects be funded as CTR Special Projects." 2021004058-4064 at 4058 (US 20339).

¶3446. One goal of the ETSAG was to generate data and conclusions from independent scientists. The same Philip Morris report noted, "To be useful and effective, approved research projects: 1) should be conducted in independent, outside laboratories (not obviously connected with the tobacco industry) . . . . " 2021004058-4064 at 4058 (US 20339).

¶3447. The purpose of the TI-ETSAG was to generate data to resist smoking restrictions and conclusions that supported the industry's public position that ETS posed no proven health risk to nonsmokers. Tom Osdene wrote the following in an April 25, 1988 letter to Tobacco Institute president Sam Chilcote:

I think many of us have conceptualized the ETS issue as a battlefield in which the arena is dominated by public relations and legal issues while the ammunition which is used happens to be science. It has been the purpose of CIAR as well as its precursor, the ETS Advisory Committee, to provide ammunition in this fight.

¶2021012384-2388 at 2384 (US 20340).

¶3448. ETSAG funded projects as CTR Special Projects, with no SAB review, because the ETSAG "was more litigation oriented." Another purpose of the ETSAG was to fund projects in order to "get scientific publications that would be of use in litigation." Donald Hoel PD, United States v. Philip Morris, 6/27/02, 58:20-59:19.

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¶3449. The Hoel Committee reported to and provided updates to the Committee of Counsel, which was authorized to approve ETS projects for funding. 521028862-8863 (U.S. 52693*); 680542518-2522 at 2520-2521 (US 30899); 91821775 (US 57128); 91820443 (US 57123); Donald Hoel PD, United States v. Philip Morris, 6/27/02, 129:3-10, 129:24-130:7; Ward TT, 11/3/04, 4961:11-4962:5.

¶3450. From 1984 to 1988, the ETSAG was responsible for developing and managing the following passive smoking projects, all funded through CTR as Special Projects, without the approval of its Scientific Advisory Board:

ORNL Personal Nicotine Monitor, developed by Roger Jenkins and Michael Guerin at the Oak Ridge National Laboratory (ORNL) and Reynolds. The project involved the development and field testing of the personal nicotine monitor originally designed and developed by Dr. Muramatsu of the Japan Tobacco and Salt Public Corporation [JTI]. The method of measurement was intended to reveal that nicotine levels in ambient air were very low. Approved funding via ETSAG: $855,000.

Indoor air particulate sampling, by Salvatore DiNardi. The purpose of this project was to "refute [the] oft-cited paper of Repace and Lowery (1980)," concluding that nonsmokers were exposed to high levels of airborne particulate due to ETS. Approved funding via ETSAG: $688,878.

Indoor air testing/surveys, by ACVA. The purpose of the project was to show that the "vast majority of [indoor air] complaints are directly caused by airborne dust, bacteria, and/or fungi" as well as poor ventilation, "and not to the presence of ETS." Approved funding via ETSAG: $13,800.

Portable air sampler, developed by Reynolds. The purpose of the sampler was to take "measurements" of air in aircraft, restaurants,

1301

homes, and workplaces, to show that everyday indoor air contains very small amounts of ETS. While the sampler was created by Reynolds, "scientists from PM, B&W, Lorillard and Reynolds will participate." Testing was carried out in numerous cities -- including New York, Ottawa, Dallas, and others -- using the Reynolds apparatus. The results were then used to resist smoking restrictions in those cities.

Epidemiological and other scientific critiques, by industry consultants Lee Husting, Theodor Sterling, David Sterling, Demetrios Moschandreas, Marvin Kastenbaum, and James Kilpatrick. The purpose of these critiques was to cast doubt on the epidemiological studies showing an association between passive smoking and lung cancer. Known approved funding via ETSAG: $198,034 (Husting); $70,000 (D. Sterling).

ETS allergy testing, by Tulane University researchers John Salvaggio and Samuel Lehrer. In Hoel's words, "it is expected that even the extreme case of the allergic asthmatic will not show physiological responses to ETS." Approved funding via ETSAG: $263,117.

Aircraft cabin air quality measurements, by R.J. Reynolds using the R.J. Reynolds sampler apparatus described above.

¶2021004058-4064 (US 20339); 507734379-4380 (US 29905); TIDN0008191-8194 (US 62592); 86024167-4167 (US 56093); 86024168-4172 (US 21089); 92613920-4198 (US 32132); 2028343885-3890 at 3887 (US 75166); 504933703-3707 (US 24220); 512252621-2626 (US 51554); 521028861 (US 27065).

¶3451. Lawyers reviewed all project proposals prior to funding and papers prior to publication. For example, a November 21, 1986 legal bill from Shook, Hardy & Bacon to Philip Morris, Reynolds, Lorillard, and B&W listed the following work under the heading of "Science and Research":

[R]eview Sterling memorandum re Vancouver ETS seminar; attorneys and analysts conference re Dr. First and ETS Advisory

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Group projects . . . review Koo manuscript . . . review DiNardi proposal . . . review ORNL paper submission on ETS; review IITRI project proposals and abstract . . . telephone conference with Dr. Sterling regarding clearance of manuscript . . . review and analyze ETS Advisory Group agenda . . . review research project and send to general counsel . . . correspondence and telex to Dr. Rylander . . . telephone conference with Dr. Sterling regarding clearance of paper on smoking by occupation. . . ."

¶682174838-4844 at 4839-4840 (US 69159).

¶3452. Numerous meeting minutes and summaries illustrate the extent to which ETSAG group members, particularly attorneys from Shook, Hardy & Bacon and Covington & Burling, designed, monitored, and carefully controlled projects initiated by the group. See, e.g., 2021003952- 3957 (US 25563); 2021004054-4057 (US 25564); 2021004286-4290 (US 25565); 2021003620-3625 (US 25562); 504933596-3702 (US 24219); 512309183-9189 (US 24751); 505491303-1308 (US 50834); TIBU0030330-0331 (US 62566); TI05440380-0380 (US 62214); 2021001009-1009 (US 25533); 511252621-2626 (US 51554).

¶3453. The ETSAG reviewed and edited papers written by researchers it had not funded, but were funded by other industry organizations. For example, a record of the May 22, 1986 ETSAG meeting recorded the following with respect to a paper by long-time industry consultant Theodor Sterling critiquing the model used by Repace in estimating annual deaths attributable to ETS:

Sterling on Repace -- Kastenbaum (TI) has had a conversation with Sterling suggesting he rewrite his papers before submitting for publication. The consensus is that Sterling has a good series of papers on Repace but needs to rewrite. Especially noted is the need not to appear to support the Repace model. . . . Hoel will follow up.

¶655042500-2503 at 2501 (US 22921*).

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¶3454. Defendants coordinated the actions of the ETSAG with those of other international industry bodies. For example, on April 8, 1986, a joint meeting of the ETS Advisory Groups from the United States, the United Kingdom, Germany, and INFOTAB took place in London "to discuss scientific and public relations problems relating to environmental tobacco smoke" and to "avoid duplication of the various efforts." Osdene and Green presented a summary of ETSAG projects to the assembled group. 505347172-7174 (US 20739).

¶3455. For two days in March 1987, the entire ETSAG met with representatives of the U.K. Tobacco Advisory Council (TAC), the German Verband der Cigarettenindustrie (VdC), and Japan Tobacco (JTI) at the L'Enfant Plaza Hotel in Washington, D.C. Each group presented its projects for discussion at this meeting. A public affairs presentation at this joint meeting stated that the industry needed to have a "systematic programme of research designed to refute the major allegations made against us." In addition, "Successful PA work on ETS will depend on the case remaining 'not proven,' and the need to ask you to keep producing work that challenges the anti-smokers' argument." Participants also agreed that the ETS research needed to utilize "neutral scientists" and the ETS issue needed to be expanded into overall "ambient air quality." TI00682162-2163 at 2162 (US 21240); 2501458142-8148 at 8142 (US 27951).

1977-1991: "Operation Berkshire"

¶3456. According to a Philip Morris memorandum dated December 3, 1976, Imperial Tobacco Chairman Tony Garrett called Hugh Cullman, then Executive Vice President of Philip Morris Incorporated and President of Philip Morris International, to explore whether several of the world's largest manufacturers, including Philip Morris, BATCo, Reynolds, Reemtsma, and Rothmans "might be prepared to meet discreetly to develop a defensive smoking and health strategy for major markets such as the UK, Germany, Canada, US and possibly others." 2025025286-5286 (US 20407).

1304

¶3457. The initial objective of Garrett's proposal was

to develop a defensive smoking and health strategy which would include a voluntary agreement, that no concessions beyond a certain point would be voluntarily made by the members [of the group] and if further concessions were required by respective governments, that these not be agreed to and that governments be forced to legislate.

¶The stated concern was that "the companies and countries would be picked off one by one and that the Domino theory would impact on all of us." 2025025286-5286 (US 20407).

¶3458. Garrett memorialized the conversation in a December 3, 1976 letter to Cullman in which he reiterated the objective "to form a defensive smoking and health strategy, to avoid our countries and/or companies being picked off one by one, with a resultant domino effect." Garrett also reported that BATCo, Reynolds, Reemtsma, Rothmans, and Imperial were prepared to consider such a unified strategy, and suggested that a meeting take place in April or May 1977 with company representatives and CEOs. 2025025290-5291 (US 22980).

¶3459. According to a February 23, 1977 letter from Cullman to Garrett confirming the participation of Philip Morris, the meeting became known as "Operation Berkshire." 2025025288- 5289 (US 20408). Garrett wrote in his March 7, 1977 letter to Philip Morris general counsel Alex Holtzman that "Operation Berkshire" was scheduled to be held on June 2-4, 1977, at an English manor called Shockerwick House near Bath. The goal was to allow executives an opportunity to "have a frank, informal, exchange of views on political strategy in respect of smoking and health." 2025025347-5348 (US 20410).

1305

¶3460. In preparation for the June 1977 "Operation Berkshire" meeting, BATCo and Philip Morris drafted and circulated a confidential "Position Paper" for the companies to discuss at the meeting. BATCo forwarded the "Position Paper" to Garrett under cover letter dated April 28, 1977. The "Position Paper" set out a number of guiding principles relating to smoking and health, as part of the maintaining "controversy" or open question:

We acknowledge the fact that there is a continuing smoking and health controversy but we do not accept as proven that there is a causal relationship between smoking and various diseases . . . . In our view the issue of causation remains controversial and unresolved. . . .

[W]e believe it is better to speak as an industry with one voice on such matters and that this can be accomplished through national associations of manufacturers.

We take the view that to date there is no persuasive scientific evidence to support the contention that the non-smoker is harmed by the tobacco smoke of others . . . .

¶2501024571-4575 at 4572-4573 (US 21904); 2025025313-5318 (US 23741).

¶3461. Executives of the seven companies met at Shockerwick House in June 1977. Attendees included Holtzman from Philip Morris Incorporated, BATCo chairman Patrick Sheehy, BATCo deputy chairman Kit Lockhart, and Reynolds chairman Bill Hobbs. The companies established three "working parties" at the meeting, the first one to address the "social acceptability of smoking." Each of the working groups was tasked to develop an industry "position paper" to serve as a "vehicle to activate Industry Associations throughout the world." 2025024797-4803 (US 20406). According to a Philip Morris record of the meeting, Reynolds' counsel Sam Witt explained that the working parties would examine the areas of interest and "develop strategy" to collectively address smoking and health issues. Reynolds was tasked to "spearhead the Social Acceptability Working Party," or SAWP. 502948580-8591 at 8587 (US 21908); 2025025295-5300 (US 75146).

1306

¶3462. To guide the efforts of the "working parties" and coordinate the positions of the companies under an umbrella organization, the seven "Operation Berkshire" participants/companies formed the International Committee on Smoking Issues (ICOSI). 502948580-8591 (US 21908). The executives met again in November 1977 and March 1978, agreeing thereafter "that ICOSI should continue on a permanent basis." 2501020298-0308 at 0299 (US 21903). The participating companies established a $2 million budget for ICOSI to carry out its mandate. 2501024103-4107 (US 21909).

¶3463. A Philip Morris report on ICOSI dated April 1979 reviewed the history and goals of the organization, stating, "The whole industry, companies and Trade Associations alike must unite with common targets and common approaches." The report later stated: "ICOSI will thus be more involved in world, or perhaps regional, strategy and in achieving a truly united industry approach on problems affecting or likely to influence several countries." 1003717317-7330 (US 86518) (emphasis in original); see also Proctor PD, United States v. Philip Morris, 8/27/02, 48:13-49:19, 50:21-52:7.

¶3464. Through BATCO, B&W also participated in ICOSI. B&W general counsel Ernie Pepples reported in an April 12, 1978 memorandum to company leadership that ICOSI had been set up "on a formal basis in Brussels." Pepples recommended that B&W increase its participation in the organization given that the passive smoking issue had "reached a fever pitch here" in the United States. Pepples cautioned, "The things ICOSI will do or fail to do will have impacts in this market as well as in others." 503143820-4106 at 3909 (US 75974).

1307

¶3465. In October 1977, the ICOSI Social Acceptability Working Party (SAWP) distributed its first report to member companies. The first report listed BATCo public relations manager Richard Haddon and representatives from Philip Morris, Rothmans, Gallaher, and Reemtsma among the members of the SAWP, chaired by Reynolds. 501472756-2794 (US 66342). The first report also drew an explicit link between the health risks associated with passive smoking and the larger issue of "social acceptability" and warned that the trend in decreasing "social acceptability" had "serious long-term implications for the industry." The group identified the two most important basic influences on social acceptability issues: (1) the health effects to smokers and (2) government regulations of smoking resulting from the health effects of passive smoking. The SAWP gave the passive smoking issue "top priority," finding that "passive smoking is the most critical one of the social acceptability issues facing the industry today." To respond to the threat, the group recommended sustained "countermeasures," and emphasized the "need to act, not just react." 501472756-2794 at 2762-2772 (US 66342). The SAWP further concluded that

national trade associations (rather than individual companies) are key vehicles for launching countermeasures on social acceptability issues. Such association countermeasures become even more effective when they carry "third party" endorsements.

¶501472756-2794 at 2772-2773 (US 66342).

¶3466. The SAWP finalized its second report and forwarded it to members under a Reynolds cover memorandum dated February 7, 1978. In the second report, the SAWP again stated that passive smoking must be given "first priority" in resolving the "social acceptability" issues. The group also recommended that future coverage of ICOSI activities be centered on the United States, the United Kingdom, Australia, Belgium, Canada, Ireland, the Netherlands, Switzerland, and Germany. 980037079-7167 at 7082, 7085, 7161 (US 32445).

1308

¶3467. The second report also included a "policy statement on passive smoking," drafted by a law firm, for the ratification of the member companies. The ultimate conclusion of the "policy statement" was that "tobacco smoke in the atmosphere does not cause disease in non-smokers." 980037079-7167 at 7086-7088 (US 32445).

¶3468. A March 1978 BATCo document stated: "The aim of ICOSI is defensive research aimed at throwing up a smoke screen and to throw doubt on smoking research findings which show smoke causes diseases." 321588692-8692 (US 28544).

¶3469. ICOSI and the SAWP held a major meeting of member company representatives and international industry manufacturer associations on May 20-23, 1979 in Zurich. A Reynolds meeting summary recorded the "agreement that smoking does not pose a health hazard to non-smokers." The ICOSI chairman emphasized to the group that "member companies and associations should speak with one voice." 500876807-6812 at 6808, 6810 (US 24168).

¶3470. The Board of Directors of ICOSI met in Bermuda in October 1980. At this meeting the member companies decided that ICOSI would change its name to the International Tobacco Information Center, or INFOTAB. 503143820-4106 at 3910 (US 75974); 2501017220-7226 (US 45873).

¶3471. INFOTAB, the successor to ICOSI, was formed "to provide a unified forum amongst members of the industry to defend itself in the face of attack." It would monitor public health organizations, prepare unified positions and strategies on a global basis. 300528729-8731 at 8729 (US 46572). The INFOTAB Board of Directors included, at various times, Philip Morris Executive

1309

¶Vice President Hugh Cullman, Philip Morris general counsel Alex Holtzman, and Reynolds CEO Ed Horrigan, (who was also at the time the chairman of the Tobacco Institute Executive Committee). Don Hoel continued to attend meetings. 2025013308-3308 (US 21585).

¶3472. Defendant B&W produced a "Conspiracy Notebook," a July 17, 1990 binder prepared for the company by outside counsel at Lovell, White, Durrant and King & Spalding in preparation for defending conspiracy cases. In this binder, the mission of INFOTAB (as well as its predecessor ICOSI) was described by B&W's counsel as follows:

The American tobacco industry, working with its counterparts in other countries around the world, organised ICOSI, later renamed INFOTAB for the purpose of coordinating the worldwide response of the industry to anti-tobacco activities. INFOTAB was used to formulate and publish a consensus position on the part of the industry. It monitored anti-tobacco organizations. It created an information service for the purpose of accumulating and disseminating intelligence on anti-smoking activities. It was used to identify and enlist allies around the world for the tobacco industry, to perform studies and research whose results would be helpful, and to rebut data and allegations from anti-smoking forces. The organization worked closely with TI in carrying out this mission.

¶503143820-4106 at 3909 (US 75974).

¶3473. Members of the Tobacco Institute met and coordinated with members of INFOTAB. The chairman of INFOTAB gave a speech at the Tobacco Institute on November 16, 1981, in which he recalled how the Tobacco Institute provided INFOTAB with its communications plans regarding the Hirayama study linking passive smoking and lung cancer. INFOTAB then alerted 28 national associations around the world; as soon as the Tobacco Institute had its press releases prepared, it telexed them to INFOTAB; INFOTAB then transmitted them by telex to the other associations for their use in generating similar press coverage in other countries. 2501029891-9901 at 9898 (US

1310

¶20557). Don Hoel was recorded in the minutes of the October 1981 meeting as pointing to "passive smoking as an example of where NMAs [national manufacturer associations, such as the Tobacco Institute] in the U.S. and Europe had taken coordinated action." 502738346-8371 (US 24212).

¶3474. INFOTAB members and the Tobacco Institute held a joint meeting in Brussels in October 1984. Hoel -- a lawyer -- provided an update on ETS science issues. Tobacco Institute vice president Bill Kloepfer made a presentation, titled "Ambient Tobacco Smoke -- Political Action" to the group; Tobacco Institute president Sam Chilcote spoke on the economic implications of smoking restrictions, and the industry's initiatives to defeat them. A representative from the UK Tobacco Advisory Council (TAC) made a presentation as well. TI12820001-0290 (US 62398); TIOK0029713-9723 (US 86547); TIOK0029724-9734 (US 86548).

¶3475. On April 8, 1986, INFOTAB's Board of Directors met in London with industry scientists and lawyers to review the member companies' current and planned passive smoking research, as well as to discuss the industry's "public relations problems relating to environmental tobacco smoke." At this time, the Board of Directors continued to include senior executives from BATCo (Robert Ely), Philip Morris (Hugh Cullman), and Reynolds (Richard Marcotullio). Members of the ETSAG (Green and Osdene) attended and made a presentation on ongoing projects. Hoel and Rupp were present as well. 505347172-7174 at 7172-7173 (US 20739); 2022932502-2506 (US 22828).

¶3476. The 1986 INFOTAB "ETS Action Plan" recognized "the ETS issue as the most serious threat" to the industry and called for a plan "to slow down the wheel that is turning against us.":

¶General Approach

1311

This will be to provide a body of authoritative scientific evidence, based on existing and possibly future research programmes, and to use this as the core argument for addressing specific sub-issues with a range of PR and advertising techniques. . . . The PR and advertising techniques can then be used as appropriate to a particular country's position. . . .

¶100993158-3165 at 3158, 3159, 3161 (US 89556).

¶3477. INFOTAB also prepared an "ETS Kitset" for the industry to coordinate the companies' public positions on ETS. The "Kitset" identified two key strategy objectives for its members:

Objective 1 To demonstrate the inconclusive nature of claims that ETS has harmful effects, by bringing to light the scientific controversy over such claims.

Objective 2 To position ETS as just one (and a very minor) factor in a complex atmospheric mix which also includes petrol/diesel fumes, dust, bacteria (particularly in air conditioned environments), pollen, and in industrial situations an enormous variety of chemical fumes and substances.

¶2501155644-5648 at 5646 (US 45901*).

¶3478. The INFOTAB "Kitset" also contained "Campaign Resource Materials" that instructed members on the best ways to run publicity campaigns, and publicity leaflets addressing six "sub-issues" created by INFOTAB for use by recipients, with the aim that the "scientific" presentations therein reach the "target audience." To that end, INFOTAB provided a Public Affairs Guide ("for use with politicians, civil servants, journalists and other opinion-leaders") and a "general leaflet" that addressed "the two major strategic themes of 'demonstrating scientific controversy' and 'ambient air quality.'" 2501155644-5648 at 5648 (US 45901*).

1312

¶3479. At the same time, the "Kitset" introduction made clear the INFOTAB Board's desire to keep its control and influence over the campaign secret:

This kitset contains two distinct types of document[s]. The leaflets have been written for publication outside the industry and have been scrutinized by industry experts. They are clearly distinguished as printed, two-colour publications, and do not carry either the Infotab name or the ETS campaign logo.

IN CONTRAST, THE INTERNAL PAPERS -- OF WHICH THIS INTRODUCTION IS ONE -- ARE FOR USE INSIDE THE INDUSTRY ONLY AND SHOULD BE TREATED AS CONFIDENTIAL. FOR THIS REASON, THE INTERNAL PAPERS HAVE BEEN PRODUCED IN A FORM WHICH IS INAPPROPRIATE FOR PUBLIC USE AND ARE CLEARLY MARKED AS CONFIDENTIAL INFOTAB DOCUMENTS.

¶2501155644-5648 at 5648 (US 45901*) (emphasis in original).

¶3480. INFOTAB was dissolved in 1991. In 1992, the Tobacco Documentation Centre (TDC) was formed to carry forward the information collection and database functions of INFOTAB. Proctor PD, United States v. Philip Morris, 6/12/02, 16:13-18. As described infra, the international coordination of Defendants' passive smoking strategy, positions, and research was taken over in 1992 by an industry committee of lawyers and scientists called the International ETS Management Committee, or IEMC. 502601564-1567 at 1565 (US 29570).

1987: Operation Downunder

¶3481. In a June 8, 1987 letter, Philip Morris Companies Vice Chairman Bill Murray invited a small group of executives to attend a conference on Hilton Head Island, South Carolina, to assess the ETS problem and formulate solutions. The conference would come to be known as "Operation Downunder." 2023551340-1343 (US 85518).

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¶3482. In his June 8, 1987 letter to invitees, Murray emphasized the gravity of the passive smoking problem, and his belief that the problem had to be addressed both as a company and as an industry:

It will come as no surprise to you that the public policy situation affecting our industry and our company has deteriorated in recent months. This is largely due to the recent Surgeon General's report dealing with environmental tobacco smoke and its alleged harmfulness to nonsmokers. Clearly the climate in which we are now operating requires that we, as a company and as an industry, take action to at a minimum slow down the anti-smoking forces and at best actually reverse some of their advances. . . .

Your personal participation in this vital activity is extremely important. I cannot overemphasize the importance of this activity. . . .

It is important to point out that we are not embarking on this exercise to simply exchange ideas on the ETS problem. Rather, we have been instructed to examine the problem and to arrive at solutions that can be immediately implemented.

¶2023551340-1343 (US 85518).

¶3483. Murray, who was involved in Operation Berkshire in 1977, was on the CTR Board of Directors at the time of Downunder. His letter was copied to the Chairman of Philip Morris Companies, Hamish Maxwell. According to the Downunder agenda, the conference began on June 23, 1987, and ended on the afternoon of June 26 with the presentation of a plan to senior management. All expenses were paid by Philip Morris. 2024270524-0527 (US 75083).

¶3484. According to the "PROJECT DOWNUNDER CONFERENCE NOTES," John Rupp addressed the group, noting the "watershed significance" and "tremendous credibility" of the 1986 Surgeon General's report. He told the conference attendees the industry's position on passive smoking was restricted to "ETS not shown to be health hazard to non-smoker." He cautioned that:

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¶"We cannot say ETS is 'safe' and if we do, this is a 'dangerous' statement.'" 2021502102-2134 at 2106 (US 20346).

¶3485. The conference notes revealed that sales were declining in the United States, and "in U.S., [the] ETS issue will have [a] devastating effect on sales." Philip Morris was very concerned that the industry was "just at the beginning of [the] impact of [the] ETS issue." 2021502102-2134 at 2109-2110 (US 20346).

¶3486. According to the notes, Philip Morris was concerned about public perception of passive smoking and felt that "perception is everything." The task of altering public perception had to be carried out (1) "in [the] face of overwhelming adverse information and publicity" relating to the harm of passive smoking to nonsmokers; (2) in the absence of "objective science" in favor of the industry's position; and (3) despite the fact that "10 of the 13 [ETS] studies show [an] effect in the direction of harm." 2021502102-2134 at 2110-2112 (US 20346).

¶3487. Philip Morris also noted that ETS research was historically feared and avoided by the industry partly because of the "risk in doing research where you don't know where it will lead." 2021502102-2134 at 2112, 2115 (US 20346).

¶3488. The notes indicate that conference attendees agreed that the industry needed "substantial funding in ETS via CIAR" and needed to "increase [the] number of scientists up to 50 in the U.S. and also throughout world." The "effort should be organized worldwide" and the "science program has to be joint-industry based." 2021502102-2134 at 2130-2132 (US 20346); 2021502679-2683 (US 75077).

¶3489. On June 26, 1987, the final day of "Project Downunder," the conference attendees presented their conclusions and recommendations to R. William Murray, President and C.O.O. of

1315

¶Philip Morris Companies. The group recommended a "dramatic increase in scientific activity on ETS." The group additionally recommended what they called an "NRA strategy" of "select[ing] the weakest of our enemies, mak[ing] an active effort to defeat them in the next election, then let[ting] people know what we did and why we did it," in conjunction with the "financial support" of industry friends. The increased funding of CIAR, the increased recruitment of "consulting scientists," and the establishment of an industry "scientific journal" were to play roles in the industry "solution" as well. 2021502671-2678 (US 22950).

¶3490. The Philip Morris group also stated its intent to bring on the other members of the tobacco industry though discussions "at the highest level":

We also need to tell the tobacco industry, regarding accommodation strategy, [sic] This is what we are doing, join us. Use TI if helpful to do so. RJR can be expected to buy on. Concept should be introduced to R.J. Reynolds and other majors at the highest level. CEO to CEO, Chairman to Chairman.

¶2021502671-2678 at 2676 (US 22950).

¶3491. One week later, Rupp took the Philip Morris ETS message out to the other members of the industry. A document, titled "Report on Industry Meeting Concerning ETS," indicates that Rupp met with representatives of Reynolds, Philip Morris, Liggett, Hill & Knowlton, and the Tobacco Institute on July 2, 1987. Rupp warned participants that the manufacturers had to act as a unified front on ETS: "Individual companies, he noted, are in a position to take advantage of their commercial resources but should make every effort to do so toward the common goal of the industry as a whole." 87697186-7193 (US 88587).

¶3492. On January 4, 1988, the Tobacco Institute's Executive Committee "approved the concept of Operation Downunder." On February 18, 1988, representatives of Reynolds, Lorillard,

1316

¶Liggett, American, the Tobacco Institute, and Covington & Burling were invited by the Tobacco Institute to develop a consensus recommendation for the Executive Committee. Tobacco Institute vice president Roger Mozingo wrote that:

We have long agreed with many of Downunder's basic goals. . . . Further, the aggressive industry posture evident throughout the plan is needed if we are to stem the tide of legislative and private industry initiatives to ban or severely restrict smoking, as well as deal with other important industry issues.

¶TIDN0002710-2719 at 2711 (US 65548); 506617595-7596 (US 20760).

¶3493. At a February 3, 1988 meeting of the Tobacco Institute's Communications Committee, Sam Chilcote told the Executive Committee that they were now tasked to "move forward with an expanded comprehensive effort" to deal with the ETS threat. The "two basic objectives" in implementing Downunder were "to defeat or lessen all smoking restrictions" and "to slow the decline of the social acceptability of smoking." These goals were to be achieved through, inter alia, funding the Center for Indoor Air Research, "media tours," and "more experts." TIDN0008865-8890 (US 65559).

¶3494. In an October 8, 1987 memorandum from Helmut Gaisch, Director of FTR's Science and Technology, to Lee Pollak, in-house counsel in New York, Gaisch advised that Operation Downunder was being implemented in Europe with other cigarette companies and Covington & Burling. Gaisch described the link between Downunder and the recruitment of scientific consultants, or "whitecoats" as they were called, who would work on behalf of the industry throughout the world:

Within the framework of the scientific part of "Downunder," we are involved in the process of enlisting the assistance of scientific experts on a world-wide basis. As there are other tobacco companies involved, e.g. RJR, John Rupp of C&B has been charged with coordinating this part of the project. . . . I have personally arranged

1317

meetings of John Rupp with key "whitecoats" in a number of European countries.

¶2501000364-0365 at 0365 (US 45866).

¶3495. On February 17, 1988, Philip Morris and Covington & Burling presented the Downunder recommendations in London to BATCo and other European cigarette manufacturers to bring them on board. BATCo Scientific Director Sharon Boyse (Blackie) recorded the following from the London meeting:

Philip Morris presented to the UK industry their global strategy on environmental tobacco smoke. In every major international area (USA, Europe, Australia, Far East, South America, Central America & Spain) they are proposing, in key countries, to set up a team of scientists organised by one national coordinating scientist and American lawyers, to review scientific literature and carry out work on ETS to keep the controversy alive. . . .

Because of the heavy financial burden, Philip Morris are [sic] inviting other companies to join them in these activities to whatever extent individual companies deem appropriate. . . .

Dr. Gaisch said that their strategy on ETS had been established in the USA at a meeting between Philip Morris and Covington & Burling, the lawyers acting for the Tobacco Institute in the USA. At a later date R.J. Reynolds were also brought in to support some of their US activities, one of these being the Centre for Indoor Air Research."

¶321140944-0949 (US 20586).

¶3496. Operation Downunder became part of Defendants' coordinated, global efforts.

1988-1999: The Center for Indoor Air Research (CIAR)

¶3497. In 1986, "[m]embers of the [ETSAG] group began to express the opinion that a more efficient mechanism to search out and supervise such [ETS] research needed to be considered." 87780454 (US 23531).

1318

¶3498. At a May 26, 1987 ETSAG meeting, members decided that a new ETS research coordinating organization for the Defendants should be called the Center for Indoor Air Research ("CIAR") "in order to dissociate it and avoid confusion with the Tobacco Institute." 506300804- 0815 (US 20756); 511252621-2626 at 2621 (US 51554); 620002505-2506 (US 53330).

¶3499. CIAR was also an important component of the industry's ETS program established at "Operation Downunder" in June 1987. 2021502102-2134 at 2130-2132 (US 20346); 2021502679-2683 at 2681 (US 75077); 508221912-1914 at 1912-1913 (US 24738).

¶3500. ETSAG proposed "the formal organization of a research organization to deal with issues relating to indoor air quality," which became CIAR. The proposal for CIAR, presented to the Tobacco Institute Executive Committee on December 10, 1987, called for the creation of an organization "with its own staff and an increased research budget" for the ongoing ETSAG projects. At the end of the Executive Committee meeting, "it was agreed that Dr. Osdene and his group would proceed with the hiring of an Executive Director and the preparatory corporate and other steps for the establishment of the CIAR." TIMN0014390-4393 (US 62782).

¶3501. Pursuant to the Tobacco Institute Executive Committee agreement, CIAR was officially incorporated in January 1988 to take over the research responsibilities of the ETSAG. The charter members of CIAR were Philip Morris, Lorillard, and Reynolds, who constituted the Board of Directors. 87824558-4562 (US 23564).

¶3502. Brown & Williamson joined CIAR as a voting board member in 1995. Eisenberg WD, 25:14-15. While Liggett was never officially a member of CIAR, it attended at least one of its meetings and participated in ETS seminars and meetings organized by Covington & Burling. Dietz PD, United States v. Philip Morris, 7/1/02, 132:1-138:17; 2023053733 (US 86513). BATCo, while not a formal member of CIAR, provided funding for several CIAR "sponsored" projects. See, e.g., discussion of Malmfors/SAS Study, Hazleton Project, and Latin American Project, infra.

1319

¶3503. CIAR stepped into the shoes of the ETSAG with respect to industry ETS projects existing in 1988. Compare 2021001205-1205 (US 25534) (12/7/87 ETSAG meeting agenda) with 2021000945 (US 25532) (3/10/88 CIAR Board of Directors meeting agenda); compare 2021004058-4064 (US 20339) (1986 list of ETSAG-managed projects) with 2021006060-6065 (US 89161) (minutes of 10/25/88 CIAR meeting). All of the ETSAG-managed projects existing in 1987 were managed through CIAR from 1988 forward. These projects included the Malmfors/SAS airline study, the ORNL air sampler project, an aircraft study by Delbert Eatough, the ETS/asthma project at Tulane, and several critiques of epidemiology by industry ETS consultants. 2021006060-6065 (US 89161); see also 2023054167-4167 (US 75232) (CIAR board member Bob Pages wrote: "CIAR evolved out of an ad hoc ETS advisory group to the Tobacco Institute . . . ."); 86003256-3257 (US 23510) (In requesting Committee of Counsel approval for an ETSAG project, Hoel refers to CIAR as a "new funding mechanism for ETS projects.").

¶3504. Defendants first offered the job of CIAR Executive Director to outsider Irwin H. Billick. When Dr. Billick questioned the independence, objectivity, and credibility of the organization because all research funding decisions would be made by the Board of Directors, the offer was withdrawn. 2023555370-5370 (US 22842); 2023553133-3137 (US 22991); 2023555364-5365 (US 22844); 2023553132-3132 (US 22845).

¶3505. Reynolds scientist and ETSAG member Guy Oldaker served as "interim director" in 1987 and throughout much of 1988 until another executive director candidate could be located. TI00682069-2070 at 2069 (US 62088); 508220128 (US 92022). Moreover, until CIAR was established in its own office, it was administered as part of the Tobacco Institute. 2023554658-4660 (US 37464).

1320

¶3506. On August 1, 1988, the Board of Directors selected Max Eisenberg, formerly Maryland's Assistant Secretary for Environmental Science and Health, to be CIAR's first and only executive director. At the time of Eisenberg's hiring, CIAR's Board of Directors was composed of Tom Osdene and Bob Pages from Philip Morris, Charles Green and Gary Burger from Reynolds, and Alexander Spears and Vello Norman from Lorillard. Eisenberg WD, 1:15-22; 3:10-13.

¶3507. CIAR had three membership categories -- charter members, regular members, and associate members. According to the CIAR Bylaws, only a "corporation engaged in the business of manufacturing and marketing of cigarettes that produced two billion or more tax-paid cigarettes during calendar year 1987" was eligible to become a charter member of CIAR. The CIAR Certificate of Incorporation stipulated that only the directors of charter members were entitled to select Board members and vote on what research would be funded. During the entire existence of CIAR (1988- 1999) only cigarette company executives/scientists sat on the Board of Directors. 86205444-5452 at 5444 (US 21827); 87824558-4562 at 4560 (US 23564); Eisenberg WD, 3:20-4:10.

¶3508. John Rupp of Covington & Burling was appointed general counsel to CIAR, and attorneys Mary Ward and Don Hoel regularly attended Board meetings just as they had earlier attended ETSAG meetings before. Eisenberg WD, 26:3-6.

¶3509. Philip Morris, Reynolds, Lorillard, BATCo and (after 1995) Brown & Williamson, paid over $4 million annually to fund ETS projects through CIAR. Funding was determined by market share. 2050764508-4508 (US 20492); 2021006060-6065 at 6060 (US 89161); Ward TT, 11/3/04, 4968:4-19; 2041653307-3385 at 3382-3385 (US 38214).

1321

¶3510. CIAR also had "regular" or "associate" members, who were not cigarette manufacturer charter members. However, they provided less than one-half of one percent of the operating costs for CIAR projects. For example, in 1996, the non-cigarette manufacturers (associate members) contributed $36,000, or .47%, of CIAR's $7.7 million in funding. 566943537-3528 (US 92018); Eisenberg TT, 11/8/05, 5444:22-5446:11.

¶3511. Moreover, all "regular" and "associate" members were connected to the tobacco industry, and most were suggested to Eisenberg by members of the CIAR Board of Directors. Using the 1988 and 1996-97 Request for Applications (RFA) as examples, associate members Consolidated Safety Services, ENV Services, and Meckler Engineers Group were all consultants to the Tobacco Institute; Universal Corporation, DIMON International, and Standard Commercial Corporation are the three largest tobacco leaf merchants in the world; Hoechst Celanese is a maker of cigarette filters; Mead Paper, Mundet International, and Ecusta are all paper suppliers to the tobacco industry; and Quest International Flavors is a flavorant supplier to the industry. 321141105-1144 (US 20588), 2061691882-1913 (US 24012); Eisenberg TT, 11/8/04, 5428:16-5431:10; 5443:7-21; 5453:2-5456:5.

¶3512. Tobacco Institute executives attended a number of CIAR Board of Directors meetings after Eisenberg established an office in Linthicum, Maryland. In April 1989, Eisenberg, Spears, and Rupp gave a presentation and status update to a meeting of the Tobacco Institute Executive Committee. Eisenberg WD, 6:8-10; TIMN0014955-4960 (US 62784); 2023053733 (US 86513).

¶3513. On January 19, 1993, Liggett Scientific Issues Manager Dennis Dietz attended a CIAR meeting in London, along with executives from Philip Morris, Lorillard, Reynolds, BATCo, B&W, and several international manufacturers. 2023053733 (US 86513).

1322

¶3514. In 1989, Eisenberg recruited outside scientists to serve on CIAR's Scientific Advisory Board ("SAB"), including Dr. Jared Cohon (Johns Hopkins), Dr. James Crapo (Duke), Dr. Gareth Green (Johns Hopkins), Dr. Irving Kessler (Univ. of Maryland), Dr. Morton Lippmann (NYU), Dr. Demetrios Moschandreas (ITT Research Institute), and Dr. Alfred Wolf (Brookhaven National Laboratory). Eisenberg TT, 11/09/04, 5665:16-5666:14; US 20588 (at 321141106).

¶3515. CIAR's SAB research agenda stated an interest in (1) "[e]nvironmental tobacco smoke (ETS), including respirable particulate and vapor-phase components;" (2) "[c]hemical contaminants from all sources, organic and inorganic;" and (3) "[b]iological agents, including aeroallergans and aeropathogens." (US 20588) (at 321141115).

¶3516. Despite the establishment of a functioning Scientific Advisory Board, only the CIAR Board of Directors had authority to approve the funding of any CIAR project. Eisenberg WD, 3:20- 23, 15:21-16:6.

¶3517. Research proposals submitted in response to CIAR's annual requests for applications were reviewed initially by peer reviewers, then by the scientists on CIAR's SAB, then by the Executive Director, and then by the member company scientists who served on CIAR's board of directors and made the final funding decisions. 11/09/04 Tr. (a.m.) at 5495:1-25 (Eisenberg).

¶3518. In order to reach out to prospective researchers, CIAR issued its "Request for Applications" (RFA). CIAR RFAs were published from 1989 to 1998. The introduction in the 1988 RFA described CIAR as "an independent, non-profit corporation" whose purpose was "to sponsor scientific and technical research" on indoor air issues. 321141105-1144 (US 20588) (1989-1990 RFA); TI01900054-0094 (US 77530) (1991 RFA); 2023523979-4010 (JD 080303) (1992-1993

1323

¶RFA); 2025471735-1762 (JD 024508) (1994 RFA); 2057790373-0404 (US 23995) (1995 RFA); 2061691882-1913 (US 24012) (1996-1997 RFA); 86616778-6810 (JD 042662) (1998 RFA).

¶3519. The names of the Charter Members was printed only on one page in an appendix in each of RFAs, on the same page with the names of the "regular" and "associate" members. See, e.g., 321141105-1144 at 1142 (US 20588) and 2061691882-1913 at 1898 (US 24012).

¶3520. CIAR RFAs did not disclose that:

• CIAR was almost exclusively funded by major cigarette manufacturers, and that the remainder of the funding (<½ %) was supplied by other companies affiliated with the manufacture of cigarettes;
• CIAR received significant funding from international cigarette manufacturers, including BATCo, Rothmans, and Imperial Tobacco (see discussion of Malmfors and Hazleton projects, below).
• Although CIAR had a Scientific Advisory Board in place as of early 1989 to review proposals for scientific merit, CIAR funded and managed a large number of projects that never went through the SAB process (see discussion of Applied Projects, below).

¶3521. CIAR also published a quarterly newsletter called "CIAR Currents" from 1991 to 1998. Eisenberg TT, 11/9/04, 5486:15-5487:2. In total, CIAR published 19 editions of "CIAR Currents," none of which disclosed that CIAR was controlled and funded by the tobacco industry. 88803301-3304, 2023055036-5039, 88803309-3312, 2028462984-2987, 2023521998-2001, 87251727-1730, 2028462980-2983, 89273328-3331, 89273324-3327, 89273320-3323, 89273316- 3319, 89273312-3315, 89273308-3311, 515952380-2383, 517577679-7682, 2063650763-0767, 517557109-7112, 517557145-7148, 2063835149-5152 (US 92019).

1324

¶3522. The CIAR newsletters, like the RFAs, did disclose the names and university affiliations of Scientific Advisory Board members. The newsletter did announce new additions/replacements to its SAB, but never disclosed the departure or arrival of new members of the cigarette manufacturer Board of Directors. (US 92019); Eisenberg TT, 11/9/04, 5499:18-22, 5501:5-11.

¶3523. From 1988 until its dissolution as required by the MSA in 1999, CIAR funded over 150 projects at over 75 institutions that resulted in roughly 250 peer-reviewed publications. (JD 002923 at 8360029); (JD 054352). Total research funding provided through CIAR was in excess of $60,000,000. See US 25643

CIAR Applied Projects

¶3524. In addition to SAB projects, CIAR funded a class of studies called "Applied Projects," similar to CTR Special Projects, which were approved and directed by the Board of Directors with no review or recommendation by the Scientific Advisory Board. As described below, CIAR Applied Projects were used by Defendants to generate data and conclusions to support the industry's position on passive smoking.

¶3525. CIAR Board member and Lorillard scientist Vello Norman wrote in his minutes of the February 2, 1989 Board of Directors meeting:

¶CIAR funds two kinds of studies:

¶a. Research -- involvement by SAB, peer review, etc.

b. Special Studies -- would normally be initiated by the Board, not subject to peer review (airlines, indoor air surveys, reviews, etc.)

1325

¶87823747-3750 (US 85695). Board member Tom Osdene took notes from the same meeting, recording that "Special Studies" were distinct from CIAR "research," were not peer reviewed, would be initiated by the Board, and were also called "Applied Projects." 2021005961-5969 (US 25580).

¶3526. Fellow Board member and Philip Morris scientist Bob Pages wrote in a September 14, 1990 memorandum that CIAR was a "vehicle to sponsor/conduct special projects (Applied Studies)." 2023530026-0029 (US 23003).

¶3527. In a May 14, 1992 memorandum to Jim Charles, Pages distinguished "Applied Studies" from CIAR's ordinary research in these terms:

The SAB recommends proposals for funding after they have been peer reviewed. Proposals can only be funded subsequent to approval by the Board. A second class of research projects -- Applied Studies -- are also funded if approved by the Board; such projects are not normally reviewed or recommended by the SAB.

¶2023054167-4167 (US 75232).

¶3528. Funding for Applied Projects was often billed by CIAR as "Special Assessments" in addition to the yearly market share-based payments of the companies to CIAR. (US 92032).

¶3529. CIAR Applied Projects was used by Defendants to fund studies that were previously approved by the TI-ETSAG, or Hoel Committee, and underway at the time of CIAR's formation in early 1988. These studies included:

1. James Enstrom ($525,000); this study examined the association between spousal smoking and lung cancer using CPS 1 data.

2. Torbjorn Malmfors ($638,806); a study of air cabin air quality aboard SAS aircraft.

1326

3. Roger Jenkins/ORNL ($920,794); three projects measuring ETS and passive exposure to tobacco smoke in Knoxville; in a restaurant/bar; and in a corporate facility.

4. Roger Jenkins/Michael Guerin/ORNL ($1.7 million); an ETS exposure study of subjects in 16 cities across the country. (Guerin was a member of the CIAR SAB.)

5. Marvin Kastenbaum ($170,935); a statistical project to develop certain tables to evaluate indoor air components. (Kastenbaum was a statistician employed by the Tobacco Institute.)

6. Keith Phillips/Hazleton Labs (later called Covance Labs) ($8.0 million); a number of exposure/measurement studies conducted in foreign cities.

7. ETS "Treatises" (funding amount unknown); textbooks on ETS and related indoor air topics (See BR2000545-0785 (JD 065024); (no bates) (JD 044893); (no bates) (JD 080699); (no bates) (JD 080700)).

8. Samuel Lehrer ($2.45 million); at least three projects assessing ETS and asthma in children and adults, and a project to assess asthmatic responses to perfumes.

9. Alan Hedge ($979,092); this study examined "the extent to which ETS is related to the perception of comfort and health of office workers in office buildings," as well as ventilation conditions.

10. Genevieve Matanowski ($2.3 million); one project ($1.6 million) was a confounders study designed to attack documented associations between ETS and lung cancer; the second project ($679,000) investigated lung cancer in nonsmokers in South America. (Matanowski was a member of the CIAR SAB.)

11. Ragnar Rylander ($333,031); a study using a questionnaire to determine lifestyle differences (confounders) between groups in Sweden and Switzerland.

1327

12. Thomas Platts-Mills ($590,642); a project evaluating ventilation, wheezing, and allergens.

13. Milt Meckler ($127,318); a project to assess the impact of a ventilation/filtration system on indoor air. (Meckler was a paid Tobacco Institute consultant.)

14. Demetrios Moschandreas/IITRI ($525,312); three projects assessing perceptions/reactions of persons to ETS in the air. (Moschandreas was a member of the CIAR SAB.)

15. Antonio Miguel ($72,760); a project to test for gas and particle phase substances in indoor air in Brazil.

16. Gray Robertson/HBI ($138,000); testing of air samples in office buildings.

17. Robert Tardiff ($466,297); a project, using the Jenkins/ORNL data, "to produce distributions of exposure to ETS."

18. Giovanni Viegi ($1.28 million); research into ETS confounders, assessing risk factors for cardiovascular and respiratory disease in Italy.

¶2505442777-2960 (US 25643*); 83205526-5581 (US 92033) (Applied Projects are indicated with the notation "Other"). Defendants spent over $21.5 million in, or one-third of its total funding, on CIAR "Applied Projects." 2505442777-2960 (US 25643*); 83205526-5581 (US 92033).

¶3530. John Rupp summarized the work of CIAR in 1993 by stating that "a number of CIAR-funded projects have contributed significantly to the industry's ongoing efforts to oppose unwarranted smoking restrictions." Rupp then ticked off the Applied Projects that had proven valuable for Defendants, including the HBI project, the Malmfors/SAS study, his "Asia Project" by Sarah Liao, the Hazleton Project, and the Jenkins/ORNL projects. Rupp continued, "What we have learned over the past five years, the period of CIAR's existence, is that CIAR can make -- indeed, already has made -- an important contribution to the industry's efforts to fight unwarranted smoking restrictions." 87602277-2281 at 2278-2279 (US 23516).

1328

¶3531. Applied Projects eventually assumed a more prominent role in CIAR operations than the SAB-reviewed studies as the industry's "needs" for certain types of studies grew. CIAR Board member Bob Pages wrote the following in an August 19, 1992 Philip Morris e-mail to Steve Parrish with respect to the future CIAR budget:

As I mentioned at our July 1st ETS science meeting, the CIAR board has come up with a plan to refocus CIAR efforts so that we get more research results which will be useful and responsive to our needs: maintain the SAB-related research budget at a (reduced) constant, self-sustaining level; and fund more applied projects which are better targeted to meet our needs.

¶2023132080-2081 at 2080 (US 92031).

¶3532. CIAR's primary value was to generate data for defensive use in litigation. CIAR Board of Directors chairman Tom Osdene of PM wrote Sam Chilcote of the Tobacco Institute five years earlier in an April 25, 1988 letter that "the purpose of CIAR" was "to provide ammunition" for the industry on the ETS "battlefield." 2021012384-2388 at 2384 (US 20340). Rupp wrote in a March 1993 letter to Imperial Tobacco: "In sum, while one might wish it otherwise, the value of CIAR depends on the industry's playing an active role (1) in identifying research projects likely to be of value and (2) working to make sure that the findings of funded research are brought to the attention of decision makers in an appropriate and timely manner." 2023053717-3720 at 3719 (US 20373).

1329

¶3533. An August 17, 1988 memorandum, written by former Covington & Burling advisor and current BATCo scientific head Chris Proctor, discussed CIAR and the advantages of membership to BATCo and Brown & Williamson. Proctor wrote:

Meetings of the board are held every five weeks in Washington and, in addition to the board members, John Rupp (Covington and Burling), Don Hoel (Shook, Hardy and Bacon), Mary Ward (R.J. Reynolds) and a TI representative attend to observe. Rupp and Hoel comment on product liability aspects. In terms of scientific acceptability, CIAR provides a further buffer between the Company and the third party, yet allows strong control of projects without major in house effort.

¶400974598-4600 at 4598, 4600 (US 47526).

¶3534. CIAR also served as a buffer between Defendants and the projects they funded. In an internal PM e-mail April 15, 1991 from Bob Pages to Steve Parrish, Pages recommended against using CIAR to fund what would become the Japanese Spousal Study, but added: "although there MAY be (I'm not convinced yet) a reason to say it was sponsored by CIAR so as to "hide" industry involvement (as was done in Rupp's 'Asia project')." 2023544456 (US 22816) (emphasis in original).

¶3535. BATCo Scientific Director Sharon Boyse (Blackie) made a similar comment when she observed in a June 19, 1991 memorandum that

the Japanese study could be channeled through an 'independent' organization such as CIAR. No matter how good the science, independence is always preferable, and in fact BAT made the decision to discontinue part of its research on ETS for this very reason.

¶507974107-4109 at 4108 (US 24730*).

¶3536. In a March 12, 1991 letter to Boyse, Rupp commented:

1330

In fact, I am not aware of an instance in which our opponents have been able to dismiss the results of CIAR-funded projects by attacking the funding source. That is, it seems to me, a very real and important achievement.

¶87602277-2281 at 2278 (US 23516).

¶3537. Tobacco industry attorneys had a significant role in the funding and approval of CIAR projects. In a June 28, 1988 memorandum to Philip Morris Assistant General Counsel Todd Sollis detailing Shook, Hardy & Bacon's ETS initiatives, Don Hoel wrote:

SHB is instrumental in developing scientific research in the area of ETS. In the United States, much of this development is now undertaken through the Center for Indoor Air Research (CIAR). PM is a member of CIAR and currently chairs its Board of Directors. Within that organization, SHB represents the interests of PM in evaluating research proposals and in determining which existing projects should be continued. The firm also monitors ETS Advisory Group projects, which are now being "folded" into CIAR.

¶2015007199-7207 at 7205 (US 20311).

¶3538. At least one of the industry attorneys (Hoel, Rupp, or Ward) attended every CIAR Board meeting where project proposals were discussed and approved. See, e.g., 2021006342-6347 (US 25581); 2023531016-1018 (US 23674); TIBU34458-4469 (US 65527); TI01900211-0214 (US 21241); 87823743-3746 (US 90011); 87802318-2319 (US 23535); 87823747-3750 (US 85695); 2353587697352-7354 (US 56308); 400974598-4600 (US 47526).

¶3539. In sum, it is clear that although CIAR was publicly billed as an independent scientific entity organized to support research projects addressing indoor-air issues, its funding was controlled by the tobacco industry, and projects were sought for the purpose of establishing industry-favorable science and potential expert witnesses.

1331

Defendants Cultivated CIAR's Apparent Independence

¶3540. Defendants selected and funded Applied Projects, those not reviewed by CIAR's SAB, in order to counter the impact of studies linking ETS and disease and to generate data favorable to the industry's public ETS position. Several CIAR-sponsored Applied Projects are described below to illustrate how CIAR served the industry's goal of concealing tobacco industry funding and control.

¶3541. The Rylander Confounders Study. From 1994-1996, CIAR sponsored a project by long-time industry consultant Ragnar Rylander, resulting in a 1999 published paper, titled "Dietary Habits for Non-Smoking Females Living With Smokers or Non-smokers." The paper highlighted differences between groups, differences which suggested that confounders (risk factors other than ETS) explained the association between ETS and disease. 2067224066-4069 (US 85733).

¶3542. Philip Morris funded the project alone. 2028381480-1480 (US 26873); 2028381481-1490 (US 26874), and paid for Rylander's project via a "special assessment" from CIAR. 2050764511 (US 92032); Eisenberg WD, 43:16-19. Though the Rylander study was a Philip Morris project, the published paper stated only that the study was "supported by CIAR." 2067224066-4069 (US 85733).

¶3543. "Rupp's Asia Project." In 1991, industry ETS consultants Sarah Liao and John Bacon-Shone published a paper, titled "Factors Influencing Indoor Air Quality in Hong Kong: Measurements in Offices and Shops." The paper concluded that indoor air quality in Asian cities was largely influenced by outdoor air pollutants, and that ETS played only a very minor role in indoor air quality. The paper fails to disclose the source of funding. TLT0500039-0047 (US 65087).

1332

¶3544. The Hong Kong project protocols were designed by BATCo's Chris Proctor and Reynolds's Guy Oldaker for industry ETS consultant Liao to use. 2500048508-8515 at 8509-8510 (US 20549); 300541891-1894 (US 85550). A project proposal from Liao to CIAR was dated March 6, 1990; the introduction in the proposal stated: "The project shall be sponsored by Centre for Indoor Air Research (CIAR) of U.S.A." 2023530411-0428 at 0412 (US 23672). See also 2023530327-0330 at 0329 (US 90023).

¶3545. The Hong Kong project went forward sponsored by CIAR. Proctor presented a progress report on the project at the February 6, 1991 CIAR Board of Directors meeting. 87802318-2319 at 2318 (US 23535). Proctor sent Eisenberg and the Philip Morris and Reynolds directors a draft of the Hong Kong paper under a cover letter dated March 1, 1991. 2023546632 (US 90026). CIAR Board member Bob Pages wrote Steve Parrish on April 15, 1991 that CIAR was used to sponsor the study "so as to 'hide' industry involvement." 2023544456 (US 22816). Rupp himself told Sharon Boyse (Blackie) in a letter dated March 12, 1993 that the Liao/Hong Kong study was one of many CIAR sponsored projects that had proven valuable to the industry. 87602277-2281 at 2278 (US 23516).

¶3546. The value of the study was in its perceived independence from the tobacco industry. In a February 14, 1990 memo to Defendants, Rupp stated, "Because the Hong Kong study will be conducted and reported by independent scientists, we expect that the results (however inappropriately) will carry more weight with a variety of target audiences than have the results of previous studies conducted and reported by industry scientists." 2500048976-8998 at 8989 (US 23007). Proctor distributed the published paper to sponsors from BATCo, Philip Morris, and Reynolds, thanking them for their "commitment to the study." 300541761 (US 23597). The

1333

¶Tobacco Institute cited the paper as seemingly independent authority in support of its March 20, 1992 comments to OSHA denying the need for workplace smoking restrictions. TLT1022319-2405 at 2367 (US 87404).

¶3547. In a January 29, 1999 article in the South China Morning Post, Liao admitted that she received approximately $1 million from CIAR to carry out the Hong Kong study with Bacon-Shone. Liao stated that she was not aware that the source of the CIAR funding was the tobacco industry. 2072522793-2795 at 2793 (US 24607).32

¶3548. The Hazleton/Covance Project. At a cost of over $8 million, CIAR sponsored a number of exposure projects carried out by Hazleton Laboratories, which later became Covance Laboratories. The purpose of the Hazleton studies was to portray ETS as only a minor indoor air pollutant in the context of overall air quality and to generate bias data to undermine epidemiological studies showing an association between spousal smoking and lung cancer in nonsmokers. The Hazleton Project resulted in the publication of more than 11 studies. 2505442777- 2960 at 2880- 2885 (US 25643*); 2501003237-3242 at 3238-3239 (US 22320).

¶3549. Defendants, through the IEMC, discussed in detail in Section V(G)(6)(a)((5)), infra, agreed to fund Hazleton as part of the industry's broad "Response to the IARC ETS Study." 2505443991-4000 at 3996 (US 22202); 2028363615-3616 (US 37366).

¶3550. According to the Rothman's scientist Barry Frost's January 1993 presentation to the IEMC, the contributors to the first of the Hazleton studies were Rothmans, Philip Morris, Reynolds, Imperial Tobacco, BATCo, Japan Tobacco, the German Verband (VdC), French manufacturer Seita,

1334

¶Spanish manufacturer Tabacalera, and the Swedish tobacco organization Reserca. 2021520163-0180 at 0167 (US 26738).

¶3551. The Hazleton Project resulted in numerous publications, some of which appeared in the tobacco industry's journal Indoor and Built Environment. 2505442777-2960 at 2883-2885 (US 25643*).

¶3552. The Latin American Project. In 1995, Antonio Miguel published a paper, titled "Characterization of Indoor Air Quality in the Cities of Sao Paolo and Rio de Janiero, Brazil," in the journal Environmental Science & Technology. The paper concluded that ETS was only a minor part of indoor air particulate matter in the restaurants and offices tested. The paper included an acknowledgment at the end stating that the study was funded in part by CIAR. 89273967-3974 (US 92023).

¶3553. The Miguel paper was part of the Latin American Project funded directly by the CIAR Board of Directors as an Applied Project. Under cover letter dated September 30, 1992, Covington & Burling analyst Chris Proctor forwarded two project proposals, the first by Miguel the second by Maria Calfaro, directly to Eisenberg and the CIAR Board of Directors for funding. The purpose of the projects was to gather data on indoor air in restaurants and offices in Brazil, Costa Rica, and other Latin American countries. The cost of the projects as proposed was $72,760 and $76,820, respectively. 2023591432-1459 (US 26794).

¶3554. Proctor wrote in his letter that funding the projects through CIAR would have "no direct implications for CIAR's budget." This was because, according to notes written by CIAR Board member Bob Pages on Proctor's cover letter, the projects were not funded by CIAR, but directly by Philip Morris (40%) and BATCo (60%). Moreover, Proctor's expenses in managing the projects were to come out of the "ongoing consultant program," and John Rupp would "pick up out of pocket CIAR expenses." Thus, CIAR was used for sponsorship only, to avoid having to name Philip Morris and BATCo as sponsors in the published paper. 2023591432-1459 (US 26794).

1335

¶3555. A November 23, 1992 update from Rupp reported that the funding of the Calfaro study, although "conducted under the auspices of CIAR" would be split among Philip Morris and BAT Group companies in Guatemala, Panama, El Salvador, Nicaragua, Honduras, and Costa Rica. 300543217-3227 at 3218-3219 (US 28139). An October 2, 1992 letter from Covington & Burling attorney Patrick Davies to Souza Cruz, the Brazilian affiliate of BATCo, advised that Rupp had asked him to respond to "questions to Sharon [Boyse] about billing for the Brazilian field study" and that Covington & Burling had set up a checking account in Sao Paolo to receive payments from BAT companies and disburse payments to the researchers. Davies also wrote that Proctor would be returning to Brazil "to oversee the field study." 300543295 (US 92025); see also 300543259-3260 at 3259 (US 28145) (11/29/92 letter from Davies acknowledging CIAR sponsorship of Central American study.)

¶3556. A Philip Morris record of an August 14, 1992 ETS meeting confirms that CIAR was chosen as a cover for the two projects in order to avoid disclosure of cigarette company involvement:

MW [Philip Morris's Matt Winokur] or J. Rupp to meet with A. Gonzalez/C. Rodriguez concerning how best to handle disclosure issue concerning Brazil and Central America projects (CIAR was suggested as the best way to handle the projects).

¶2051810375-0377 at 0376 (US 92066).

¶3557. In 1995, CIAR billed Philip Morris a "special assessment" of $1 million for "Latin America/Asia exposure studies." 2050764531 (US 92032).

1336

¶3558. The 16 Cities Study. One of the more expensive studies funded through CIAR as another Applied Project was the ORNL project published as the 1996 paper "Exposure to Environmental Tobacco Smoke In Sixteen Cities In The United States Determined By Personal Breathing Zone Air Sampling." (JD 044272); Ogden WD, 6:1-11; Ogden TT, 3/17/05, 15948:15- 15949:8.

¶3559. Defendants undertook the 16 Cities Study in response to a workplace indoor air rule proposed by OSHA in September 1991. 2023859480-9486 (JD 080318). According to an October 8, 1992 Philip Morris e-mail from CIAR Board member Bob Pages to Steve Parrish, Reynolds CEO Jim Johnston conditioned his company's continued funding of CIAR on the initiation of projects that would help the industry oppose the OSHA rule: "CIAR must use all of its resources in support of projects/activities that will help us with OSHA." In the same e-mail, Pages stated that fellow CIAR Board member and Reynolds scientist Charles Green told him that "the prevailing attitude around Winston-Salem is that 'if we lose with OSHA, it's all over.'" 2028472657A-2028472658 (US 75169); Ogden TT, 3/17/05, 15947:6-9.

¶3560. The 16-Cities Study was planned in early 1993 with Reynolds, ORNL, and Reynolds' long-time marketing research firm, Bellomy Research. 508692972-2972 (US 92102). Bellomy was responsible for proposing the cities in the study, locating marketing research firms in those cities, and overseeing the entire process of obtaining the questionnaire data from participants. Ogden TT, 3/17/05, 15951:23-15953:6; Ward TT, 11/3/04, 4990:6-4991:24. Bellomy and Reynolds created the questionnaire given to participants. Ogden TT, 3/17/05, 15955:4-14. CIAR funding was split between ORNL and Reynolds, who received over $500,000 from CIAR to assist ORNL with data interpretation. 522057702-7708 at 7702 (US 93165); Ogden TT, 3/17/05, 15967:23-15968:5.

1337

¶3561. As requested by the CIAR Board of Directors, all of the laboratory testing of body fluids and air samples for metabolites of nicotine was carried out at the Reynolds laboratories in Winston-Salem. Ward TT, 11/3/04, 4987:17-24; (JD 044272 at 483) ("ETS and saliva samples were shipped to the RJR/RD analytical laboratories. . . ."); 522057702-7708 at 7702 (US 93165). Ward TT, 11/3/04, 4987:25-4989:17.

¶3562. Reynolds scientist Mike Ogden (1) "designed and executed" the 16 Cities Study; (2) was responsible for completing all the analysis of the body fluid samples in the study; (3) authored 17 Reynolds Research & Development Memoranda (R&DMs) on the project; and (4) could have been listed as an author on the published paper. 510781780-1782 at 1780 (US 30001); 522057702- 7708 (US 93165); 519274420-4426 at 4422 (US 30351); Ogden TT, 3/17/05, 15967:10-22.

¶3563. The lead researchers at ORNL were Roger Jenkins and Michael Guerin. Jenkins had been a recipient of major tobacco industry funding in the 1980s through the ETSAG. 2021004058-4064 (US 20339); 507734379-4380 (US 29905). Guerin served Defendants as a member of the CIAR SAB at the time the 16-Cities Study was carried out. 2025471735-1762 at 1736 (JD 024508); 2057790373-0404 at 0375 (US 23995).

¶3564. The results of the 16-Cities Study were favorable to the industry: the study concluded that exposure to ETS in the workplace was only a fraction of what was estimated by OSHA in the proposed rule. (no bates at II-48-II-70) (JD 023787) ("The ORNL Study is the best evidence in the record concerning workplace exposure to ETS.").

The Demise of CIAR

¶3565. The MSA, signed by the parties in November 1998, required that Defendants shut down and disband CIAR within 45 days of "Final Approval." Although the MSA was signed by the parties in November 1998, "Final Approval" by the settling States did not take place until approximately one year later. (no bates at 32-33) (JD 045158).

1338

¶3566. The CIAR Board of Directors voted to dissolve CIAR on October 7, 1999, and Eisenberg formally dissolved the organization on December 6, 1999. 86205205-5206 (US 21091).

¶3567. Between the MSA signing in November 1998 and CIAR dissolution in December 1999, Defendants continued to fund millions of dollars of new and continuing research. In February 1999 alone the CIAR Board of Directors voted to fund over $3.5 million in new research. 2063908736-8736 (US 20514); 83205163-83205165 (US 23493).

¶3568. As one example of CIAR's continued activities, in 2000, the second edition of the CIAR text by ETS consultant Roger Jenkins was published, with Max Eisenberg listed as editor. The publication, titled "The Chemistry of Environmental Tobacco Smoke: Composition and Measurement," continues to dispute the known health effects of passive smoking and trivializing its role as an indoor air pollutant. According to Jenkins's introduction to his book: (1) "The degree to which ETS exposure represents a health hazard remains a point of contention"; and (2) "The contribution of ETS to the concentration of indoor air contaminants in commonly encountered environments is much less than is implied by the extreme values included in many tabulations of ranges observed." BR2000545-0785 at 0553 (JD 065024).

Post-1991: IEMC

¶3569. In March 1991, after INFOTAB was dissolved, executives and lawyers representing several Defendants and other cigarette manufacturers formed the International ETS Management Committee (IEMC) to (1) fund and manage research on ETS and (2) coordinate the industry's strategy and position on passive smoking.

1339

¶3570. A May 1991 Philip Morris document stated that the IEMC was established to insure that:

1. Common position statements and policies are developed and adopted worldwide;

2. Major potential threats of smoking restrictions and bans are identified;

3. Strategies are developed to deal with them;

4. The necessary resources are made available to the staff in the markets and regions; and,

5. Finally, that optimal coordination and cooperation across the companies is promoted to ensure the best application of those resources.

¶2500061112-1113 (US 22821).

¶3571. The executives and lawyers of the IEMC represented BATCo, Reynolds, Philip Morris, American Brands/Gallahers, Imperial Tobacco, Reemstma, and Rothmans was intended to work with a larger European industry organization called the Confederation of European Community Cigarette Manufacturers, or CECCM. 2500061112-1113 (US 22821); 507782317-2318 (US 20788).

¶3572. According to a 1991 memorandum by BATCo's IEMC representative Sharon Boyse (Blackie), the IEMC was established "following the AFCO judgment in Australia" when "a group of international industry lawyers met in London to consider the implications for the industry." This group became the IEMC. 300522762-2767 at 2763 (US 22223).

¶3573. The AFCO case referred to by Sharon Boye (Blackie) arose from a July 1986 advertisement by the Tobacco Institute of Australia, published in Australian newspapers:

Lately, however, many non-smokers have been led to believe that cigarette smoke in the air can actually cause disease.

1340

There is little evidence, and nothing which proves scientifically that cigarette smoke causes disease in nonsmokers.

¶AFCO v. Tobacco Institute (Aust) (1991) 27 FCR 149.

¶3574. The Australian Federation of Consumer Organizations (AFCO) brought suit against the Tobacco Institute, alleging that the advertisement was deceptive under the Australian Trade Practices Act. AFCO v. Tobacco Institute (Aust) (1991) 27 FCR 149.

¶3575. Finding in favor of AFCO, the trial court held that the Tobacco Institute's advertisement was misleading and deceptive with respect to the scientific evidence that passive smoking caused lung cancer, respiratory diseases in children, asthma attacks, and middle ear disease. With respect to lung cancer, the Australian court held:

In relation to the disease of cancer, the statement was erroneous and was misleading and deceptive both in 1986 and to date because: (a) far from there being little evidence that cigarette smoke caused disease in nonsmokers, there was much evidence to that effect, irrespective of whether the primary articles alone were regarded as evidence for the purposes of the advertisement, or regard was also had to the major reviews; and (b) a review of the totality of the available data leads to the conclusion that there was scientific proof in the sense that there was compelling scientific evidence that cigarette smoke caused lung cancer in nonsmokers.

¶AFCO v. Tobacco Institute (Aust) (1991) 27 FCR 149; upheld on appeal Tobacco Institute (Aust) v. AFCO (1992) 38 FCR 1; Tobacco Institute (Aust) v. AFCO (1993) 41 FCR 89.

¶3576. The industry realized after AFCO that it could be liable for statements that cigarette manufacturers or their trade associations (such as the Tobacco Institute) made denying the adverse health effects of ETS. In a memo on "Industry ETS Consultancy Programs," Dr. Sharon Boyse (Blackie) wrote:

1341

One conclusion that was very clear from the industry lawyers was that we had to further develop our resources of independent spokespersons who were not directly associated with the tobacco industry, in order to minimize situations in which we respond as an industry and so potentially lay ourselves open to legal claims.

¶300522762-2767 at 2763 (US 22223).

¶3577. One major role of the IEMC was to formulate a common position for the industry on ETS. To that end, Covington & Burling prepared a position paper, the "ETS White Paper," for the IEMC and CECCM, which concluded that (1) knowledge of the chemical composition of mainstream and sidestream smoke is not relevant to the composition of ETS; (2) knowledge of the health effects of active smoking is equally irrelevant; (3) ETS is only a very minor source of indoor air contaminants, and can be addressed via ventilation; and (4) the "pertinent evidence" did not support any claim that exposure to ETS was a cause of any disease or any adverse health effects in children or adults. 2023581802-1841 at 1808-1812, 1827, 1831, 1838 (US 88467).

¶3578. According to 1992 company memoranda from Philip Morris's Matt Winokur and BATCo's Sharon Boyse (Blackie) to their respective company executives worldwide, including Steve Parrish, general counsel of Philip Morris, the Covington & Burling position paper had been "approved and adopted for use by all the IEMC member companies" for public use. 2023581801-1801 (US 20392); 300528914-8914 (US 46573).

¶3579. The 1992 "ETS White Paper" was also forwarded to CECCM, the Tobacco Document Center (TDC) and all company representatives. 300543969-3970 (US 88468); 300543940-3942 (US 88469). Covington & Burling revised the "white paper" in 1993 and distributed it to IEMC and CECCM members for comments and approval. 500874371-4371 (US 88470); 300544202-4208 at 4206 (US 88471); 2025495368-5373 at 5370 (US 37270).

1342

¶3580. CECCM worked with the IEMC and approved the IEMC position papers for use by all of its cigarette manufacturer members both with the media and with government officials. 300545701-5705 (US 88464); 300543440-3445 at 3443 (US 88465); 2504088209-8210 at 8209 (US 20571). In the words of the Rothmans representative to the IEMC: "It was eventually resolved: IEMC will develop the messages (globally); CECCM will deliver these message (in Europe)." (emphasis in original) 900006204 (US 88482); 900006205-6209 (US 88483). An "ETS Communications Manual" was compiled and distributed to all IEMC and CECCM members. 900006078-6080 (US 88485); 2072418746-8749 at 8746 (US 89141).

¶3581. In the 1990s, IARC undertook a large study in multiple cities to assess the health effects of passive smoking. Defendants also used the IEMC as a platform to monitor, influence, and criticize the IARC study. Boyse wrote the following in a December 1, 1993 memorandum to BATCo executives:

IARC is to publish, in 1994 or 1995, the largest epidemiological study of ETS ever carried out, covering eleven Centres in Europe, North America, and Asia. We believe it likely that on the basis of this study, IARC will classify ETS as carcinogenic, which would lead to a situation not dissimilar to that with the EPA in the USA . . . .

Through the International ETS Management Committee (BAT, PM, RJR, Rothmans, Imperial UK and Reemtsma) we are developing a strategy, both scientific and media-related, to cope with this study.

¶500844318-4319 (US 48464).

¶3582. A September 2, 1993 Philip Morris memorandum discussing the IARC study warned that:

The results are anticipated to have significant credibility both because this study consists of original research and because IARC itself has a solid reputation. Preliminary indications suggest that the study may

1343

find a very weak, but positive link between ETS exposure and lung cancer in non-smokers.

¶2501117793-7797 at 7793 (US 27932).

¶3583. According to several Philip Morris documents, industry objectives in 1993 included: (1) "delay[ing] the progress and/or release of the study"; (2) taking steps to "neutralise the possible negative results of the study"; and (3) making efforts "to get the study shelved altogether." 2501117793-7797 at 7794 (US 27932); 2501348679-8683 (US 88474). The industry even asked: "Can we kill the credibility of the research up front, before publication?" 2500156109-6110 at 6109 (US 88473); 2025493279-3283 (US 88111).

¶3584. An updated 1993 plan was presented by Philip Morris's David Greenberg to Philip Morris Companies President and COO Bill Murray in September 1993. Objectives continued to include delaying the progress and release of the IARC study, as well as neutralising its results. Greenberg proposed setting up a Philip Morris IARC team, composed of Philip Morris employees and attorneys from Shook, Hardy & Bacon and Covington & Burling, to insure that the strategies were "implemented globally." 2021184116-4116 (US 26730); 2021184117-4121 at 4118-4119 (US 36718).

¶3585. Philip Morris's IARC planning involved executives and scientists from Philip Morris and Philip Morris Europe (FTR), in conjunction with the outside lawyers. Philip Morris (FTR) Scientific Director Helmut Reif took the lead in organizing and coordinating all of the inter-industry scientific efforts, which included preemptive assessment of the questionnaire to expose weaknesses; organizing with the law firms a team to identify and mobilize consultants, and offering IARC industry funded study results and protocols through Max Eisenberg at CIAR. Philip Morris's Matt

1344

¶Winokur wrote to Philip Morris's general counsel Steve Parrish in a January 24, 1994 e-mail: "I agree that S & T (Richmond and Neuchatel) must be involved with all phases -- scientific, political and communications -- that come together when developing the industry's response to the IARC study. And already this is happening." 2029174855-4855 (US 88475); 2024104538-4538 (US 88476).

¶3586. From 1994 forward, a plan to counter IARC was carried out through a task force of the IEMC representatives. CECCM had its own "IARC Working Group" whose membership included many members of the IEMC "subgroup." The subgroup met to formulate the industry's comments and responses (called "ETS messages") to the IARC study both before and after publication; these "messages" were then be forwarded to CECCM and IEMC member companies to ensure unified positions. 900006185-6185 (US 88480); 2028361781-1781 (US 88478); 2078742949-2949 (US 27722).

¶3587. In a January 17, 1994 memorandum to David Greenberg, Matt Winokur summarized how the "IARC task force" had been set up "to coordinate plans and resources among the companies and in conjunction with National Manufacturers Associations." These plans included IARC "intelligence gathering" and the development of a "global communications . . . to address the impact of the study." 2025493459-3460 at 3459 (US 26843).

¶3588. A 1995 Reynolds Powerpoint presentation, titled "ETS: a global offensive and defensive strategy," called IARC a "manageable threat" that could be "globalized" and countered by CIAR and other industry passive smoking initiatives. 502558482-8497 at 8483, 8488, 8489, 8492 (US 29562).

1345

¶3589. The industry's coordinated "IARC Release Plan," as written in 1996, involved many players. The plan was presented to IEMC and CECCM, for their approval. Rupp was in charge of writing various white papers that would be included in the National Manufacturer's Association manual. Shook, Hardy & Bacon provided legal clearance. Peter Lee reviewed IARC's ETS position and past practices to allow corporate affairs to identify weaknesses in the IARC methodology. There was a "Response Coordination Team" of executives from the member companies, including David Greenberg and Ruth Dempsey of Philip Morris, Chris Proctor of BATCo, and Steven Sears of Reynolds. More than a dozen other company executives and scientists served in other roles for the "Coordination Team." 2048381563-1574 (US 88131).

¶3590. The "IARC Industry Release Plan" was coordinated through CECCM. The minutes of the January 28, 1997 CECCM corporate member meeting recorded that Philip Morris gave a status update on the IARC study, and the members agreed that CECCM would update the manufacturer associations (NMAs) at the next meeting in February 1997. The "IARC Industry Release Plan" involved the cigarette manufacturer members, the NMAs, and public relations firm Burson Marsteller. 2072417681-7682 (US 89132).

¶3591. One strategy which was adopted to counter the anticipated IARC study was to create and convince scientific groups to adopt industry-favorable epidemiology standards, dubbed "Good Epidemiology Practices" or GEPs. 2501347174-7176 at 7175 (US 45951); 2029260524-0539 (US 26895); 2025493020-3030 (US 88108); 2028381627-1627 (US 26885). Through the use of its "GEPs," Philip Morris created and pushed a standard under which relative risks of less than two would be ignored, and would automatically bar a finding of causation. Parrish WD, 86:1-88:9.

1346

¶3592. Defendants were unable to convince any organization to adopt their version of "good" epidemiological practices. In an April 3, 1998 Philip Morris e-mail from Ted Sanders to Cathy Ellis in Richmond, Sanders summarized the 1994 GEP initiative as follows:

Approximately three years ago, the concept of GEPs was discussed in considerable detail in PM. Corporate Affairs thought it was a wonderful idea, because at first they. . . felt that part of a code for Good Epidemiological Practices would state that any relative risk of less than 2 would be ignored. This is of course not the case. No epidemiological organization would agree to this, and even Corporate Affairs realizes this now. A number of initiatives were attempted, but the one initiative which continues in Europe is currently under the auspices of John Rupp.

¶2060566164-6165 (US 20505).

¶3593. In early 1998, IARC published a summary update of its ongoing Multi-Center ETS study in its Biennial Report. 2063594009-4009 (US 39763). In this Report, the researchers reported a relative risk of lung cancer() of 1.16 for spousal exposure (CI = 0.93-1.44) and 1.17 for workplace exposure (CI = 0.94-1.45). In other words, non-smoking spouses exposed to smoking spouses faced a 16% greater risk of lung cancer, and non-smoking employees exposed to smoking fellow employees faced a 17% greater risk of lung cancer. Researchers also reported that "several quantitative indicators of ETS showed a dose-response relationship with lung cancer risk." 770007956-8214 at 8018, 8177-8178 US 88132; (no bates at 9) (JD 023241).

¶3594. Despite the findings in the IARC study of raised relative risks and a dose-response relationship, Defendants attacked the statistical significance with their GEPs below two. A March 8, 1998 BATCo press release stated:

Europe's Largest Ever Passive Smoking Study Has Failed to Establish a Meaningful Risk of Lung Cancer to Non-Smokers

1347

The ten year study, which was commissioned by the World Health Organisation and involved twelve centres in seven countries, has cast further doubt on the status of passive smoking as a cause of disease.

Dr. Chris Proctor, Head of Science for British American Tobacco said: "New scientific research from the World Health Organisation has shown the risk of lung cancer from environmental tobacco smoke to be either non-existent or too small to be measured at a meaningful level. . . . If this study cannot find any statistically valid risk, you have to ask whether there can be any risk at all."

¶2063594018-4018 (US 39764).

¶3595. A March 9, 1998 B&W press release stated:

MAJOR ENVIRONMENTAL TOBACCO SMOKE STUDY FINDS NO RISK

New research from one of the world's premier health organizations is out on environmental tobacco smoke.

In the largest study of its kind ever performed in Europe, research by the World Health Organization's International Agency for Research on Cancer (IARC) has found no meaningful increase in lung cancer risk to non-smokers exposed to environmental tobacco smoke.

"This is good news for smokers and non-smokers," said Sharon Boyse, director of scientific communication at Brown & Williamson Tobacco Corporation. We welcome this new study which confirms what we and many other scientists have long believed, that while smoke in the air may annoy some non-smokers, the science overall does not show that being around a smoker is a lung cancer risk," she said.

¶DXA0680223-0233 at 0233 (US 79025).

¶3596. In response, a March 1998 WHO press release stated:

PASSIVE SMOKING DOES CAUSE LUNG CANCER; DO NOT LET THEM FOOL YOU

---

1348

The results of this study, which have been completely misrepresented in recent news reports, are very much in line with the results of similar studies both in Europe and elsewhere: passive smoking causes lung cancer in non-smokers.

The study found that there was an estimated 16% increased risk of lung cancer among non-smoking spouses of smokers. For workplace exposure the estimated increase was 17%. However, due to the small sample size, neither increased risk was statistically significant.

¶224460-4461 (US 79174).

¶3597. Another major purpose and function of the IEMC was to select and fund scientific studies to generate findings favorable to the industry's position that ETS was not a proven health hazard. For example, the Hazleton exposure studies described above, funded by Defendants through CIAR, were directed by the IEMC. 2023522351-2352B at 2352B (US 75127). The Japanese Spousal Study conducted by BATCO's Proctor and industry consultant Peter Lee was also directed by IEMC in order to obtain industry-favorable results. 300512244-2245 at 2245 (US 67752).

¶3598. A June 8, 1994 presentation by Philip Morris's Richard Carchman to the IEMC stated that IEMC-proposed exposure and confounder studies were to "be organized by and funded through CIAR." Carchman described four studies: two confounder studies by CIAR SAB member Genevieve Matanowski, the Hazleton project, and the ORNL16-Cities Study. The objective of the projects was to generate data for use with both scientists and policymakers in 1994 and 1995. 2505443991-4000 (US 22202).

¶3599. The IEMC agreed that once the Hazleton Project and the Japanese Spousal Study were completed, industry ETS consultants would be told by Covington & Burling "to spread the scientific word on the new scientific info" from the two projects. 2501003237-3242 at 3242 (US 22320); 2501003235-3235 (US 22322).

1349

¶3600. The industry has also tried to discredit the IARC study results when addressing regulatory authorities. For example, Philip Morris's testimony before the National Toxicology Program (NTP) sought to use its misrepresentation of the IARC ETS study as the basis for its argument that the NTP lacked sufficient evidence to classify ETS as a carcinogen. 770007956-8214 at 8179 (US 88132) (citing 2063594507-4508 (US 27115)).

The Global ETS Consultancy Program

¶3601. The ETS Consultancy Program was a worldwide network of consultants and organizations recruited to speak on behalf of the industry to influence public opinion, government officials, and scientists. As described below, Defendants created the ETS Consultancy Program to attack and discredit the scientific consensus and underlying evidence that passive smoking was a health hazard.

Establishment and Goals of the ETS Consultancy Program

¶3602. One objective in creating and implementing the ETS Consultancy Program was simply to "keep the controversy alive" by attacking the scientific consensus that ETS was a health hazard. 321140944-0949 at 0944 (US 20586); 2021181803-1812 at 1803 (US 22155); 2047720166-0173 at 0169; (US 23966); 321091680-1729 at 1685 (US 28271).

¶3603. Creating and maintaining a controversy in the media and in the scientific literature allowed Defendants to continue arguing that ETS was not a proven health hazard. Director of Science & Technology Helmut Gaisch explained in an April 19, 1988 Philip Morris document titled "ETS Plan and Budget for the years 1988, 1989, 1990, and 1991" how the consultants would serve this aim:

1350

¶Objective for S&T [Science and Technology]:

To organise and support scientific work on a continuous basis leading to results which are published in the scientific literature and reported at public scientific events. . . . This will enable the continued use of the argument: there is no convincing scientific evidence that ETS is a health risk for non-smokers.

Scope: Management of experts as scientific spokespersons Management of extramural research projects Support of international scientific events

¶2501152297-2300 at 2297 (US 89558).

¶3604. Starting in the mid-1980s, the Tobacco Institute, with the assistance of outside attorneys at Shook, Hardy & Bacon and Covington & Burling, began the consultancy program in the United States. 2081369202-9220 (US 27796); TIMN435220-5272 (US 21734); TIDN0019217-9268 (US 85597); TI01140124-0133 at 0129 (US 62100).

¶3605. After the June 1987 "Operation Downunder" meeting, Defendants expanded their consultancy program to train and deploy scientists worldwide. 2028343858-3860 at 3858 (US 75086). Defendants referred to these efforts in the United States and globally as the ETS Consultancy Program, which continued well into the 1990s.33 See 2500048635-8640 at 8639 (US 20550); 2071027438-7442 (US 40371) (1992-93); 2078462906-2909 at 2906 (US 75367) (1998-99).

¶3606. The ETS Consultancy Program, also called the "Whitecoat" project in many documents, ultimately sought to "resist and roll back smoking restrictions" and "restore smoker confidence" in all of Defendants' markets. 2501254705-4708 (US 75267). To do this, the industry recognized it had to undermine the scientific evidence demonstrating ETS was hazardous to nonsmokers and restore the social acceptability of smoking. 2023542519-2522 at 2519 (US 23677); 2501474253-4259 at 4253 (US 22017).

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¶3607. In a February 17, 1988 memo, BAT scientist Sharon Boyse (Blackie) described the ETS Consultancy Program:

In every major international area (USA, Europe, Australia, Far East, South America, Central America & Spain) they are proposing, in key countries, to set up a team of scientists organized by one national coordinating scientist and American lawyers, to review scientific literature or carry out work on ETS to keep the controversy alive. They are spending vast sums of money to do so, and on the European front Covington & Burling, lawyers for the Tobacco Institute in the USA, are proposing to set up a London office from March 1988 to coordinate these activities.

¶321140944-0949 at 0944 (US 20586).

¶3608. Sharon Boyse (Blackie) again described the scope and success of the effort in a July 1991 review and summary of the consultancy program:

The industry in the US . . . has had a huge programme to develop independent witnesses or consultants on ETS-related issues, for media as well as for legal and scientific purposes. It is believed by the US industry that this wide availability of independent witnesses has been critical in their track record to date of defeating approximately 90% of all state initiatives to legislate on smoking restrictions.

¶3609. Defendants' intent was to influence "three audiences": "the scientific community, regulatory authorities, and the general public." 2501474253-4259 at 4258 (US 22017).

(b) Defendants' Implementation of the ETS Consultancy Program: Recruiting, Training, and Educating the Consultants

¶3610. Defendants and their lawyers created and trained a network of scientific consultants and academics to critique or research findings suggesting that secondhand smoke caused adverse health effects, and to divert attention away from ETS to the issues of indoor air quality and ventilation.

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¶3611. A Helmut Gaisch memo, titled "Proposal for the Organisation of the Whitecoat Project," described the program:

Pro-active element: a) to generate a body of scientific and technical knowledge in the field of ETS within the PM EEMA and EEC markets. The Project's activities and programmes will include fundamental research, IAQ and IAQ studies. These will be undertaken by whitecoats, contract laboratories and commercial organisations such as ACVA.

b) to disseminate and exploit such knowledge within specific communications programmes in these markets.

¶2501254705-4708 at 4705 (US 75267).

¶3612. BATCo's Sharon Boyse (Blackie) summarized the recruiting process in her February 1988 memorandum in these terms:

The consultants should, ideally, according to Philip Morris, be European scientists who have had no previous connection with tobacco companies and who have no previous record on the primary issue [active smoking] which might, according to [Covington & Burling attorney David] Remes, lead to problems of attribution. The mechanism by which they identify their consultants is as follows: they ask a couple of scientists in each country . . . to produce a list of potential consultants. The scientists are then contacted by these coordinators or by the lawyers and asked if they are interested in problems of Indoor Air Quality: tobacco is not mentioned at this stage. CVs are obtained and obvious "anti-smokers" or those with "unsuitable backgrounds" are filtered out. The remaining scientists are sent a literature pack. . . . They are asked for a genuine opinion as independent consultants, and if they indicate an interest in proceeding further, a Philip Morris scientist makes contact.

Philip Morris then expect the group of scientists to operate within the confines of decisions taken by PM scientists. . . .

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¶321140944-0949 at 0944 (US 20586); see also 300538976-8999 (US 88778).

¶3613. In the words of David Remes, the lawyers were entrusted to locate a "corps of scientific consultants and engineers in each market" around the world. Covington & Burling and consultants in the United States were given the task of "weeding out unsuitable candidates." A particular problem was consultants who had ever expressed an adverse opinion on active smoking:

Candidates who have made public statements adverse to the industry on the primary health issue generally are avoided, lest those statements be attributed to the industry if those candidates were retained as consultants on the ETS issue.

¶2501474253-4259 at 4256 (US 22017).

¶3614. Defendants often recruited consultants who had very little or no expertise in smoking and health issues. Defendants then educated and trained them.

¶3615. For example, a March 9, 1987 Philip Morris memorandum from Arjuna Kannangara to Mary Pottorff provided an update of recruiting efforts in Finland, Sweden, and Switzerland. Kannangara wrote that in order "to influence expert opinion" and "popular attitudes," the "strategy" was to:

[R]ecruit and educate "consultants" to operate as credible third-party spokesmen in environmental toxicology and ETS (comparable to John Rupp/Indoor Air Pollution Advisory Group -- IAPAG).

¶2023541666-1668 (US 23675).

¶3616. A January 25, 1988 letter from Rupp to Gaisch and Philip Morris Europe counsel Bradley Brooks referred to consultants obtained by the industry in the ETS Consultancy Program as "'whitecoat' recruits." Rupp also described a March 1988 meeting of the Nordic consultants for "training and further orientation": "Our goal is to leave the March training/orientation session with seven scientists . . . completely cognizant concerning the science of environmental tobacco smoke and prepared to share that knowledge with others at the industry's request." 2501474296-4301 at 4296-4297 (US 27955).

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¶3617. The Asia ETS Consultancy Program was set in motion in 1989, based on the model already in place in the United States and Europe. 2500048655-8662 (US 27900); 2500048643-8654 (US 22857); 2500048508-8515 (US 20549); 2500048976-8998(US 23007). None of the consultants in the Asia Program had expertise or experience in ETS. 2500048655-8662 (US 27900).

¶3618. The April 10, 1989 Asia program status report detailed the consultant selection process. The document described how the Covington & Burling attorneys would make contact with a potential consultant, but withhold their affiliation with the tobacco companies. The attorneys would then give him or her a "packet" of ETS materials for review and comments. The researcher's potential as a consultant was then determined by review of these comments. The report noted that at least one promising consultant (Roh) needed "educating" on the industry's "misclassification" argument. Another consultant (Liao) would serve as a "buffer" between a high-visibility consultant (Koo) and Covington & Burling to provide a further layer of insulation from the industry. A two-day training session to educate the consultants on the relevant literature (provided by Covington & Burling) was scheduled for June 1989 in Bangkok. 2500048643-8654 (US 22857).

¶3619. In the September 27, 1989 Asia program status report, Rupp noted:

We have not asked any of our Asian consultants to act as presenters but instead have requested that some of them participate in selected panel discussions. The symposium presents an ideal opportunity to expose the Asian consultants to the full range of issues and the most advanced current thinking on ETS and should bolster their confidence substantially. As the panel discussions will be transcribed and published alongside the keynote presentations, McGill [the McGill

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Symposium in 1989] will mark their first appearance in the scientific literature on ETS.

¶2500048508-8515 at 8509 (US 20549). Later in the February 1990 status report, Rupp reiterated: "One key objective of the project has been to recruit and educate scientists who would then be available to testify on ETS in legislative, regulatory, or litigation proceedings in Asia or elsewhere." Rupp then listed the various activities already undertaken by the Asia consultants on behalf of the industry, including distributing the McGill "symposium" proceedings, participation in scientific conferences and a public health committee, serving on the IAI journal board (see infra), carrying out research, and various media appearances. 2500048976-8998 (US 23007).

¶3620. The ETS Consultancy Program was subsequently exported to Latin America in 1991, with joint funding by Philip Morris (40%) and BATCo (60%). In the proposal from Sharon Boyse (Blackie) to Rupp dated January 2, 1991, Boyse summarized what had already taken place in Asia:

The tobacco industry in Asia (BAT, PM, RJR and Japan Tobacco) has, for the past couple of years, been supporting a project to establish a consultancy group on ETS and related issues in the region.

In each country . . . one or more scientists have been identified whose background enables them to take a scientific interest in the issues surrounding debate on ETS. . . . The consultants meet regularly to discuss ideas and learn about ETS issues, and have the background to become experts on ETS in their country, and to carry out research if required. Many are influential members of the scientific community. . . .

As a result of the project, local experts on ETS are now available to provide consultancy services and to organize events and research. In many countries, positive media coverage of the issues has occurred, resulting in a decreased emphasis on ETS and increased attention to other environmental and indoor air pollution problems.

In order to ensure independence from the tobacco industry, the programme is managed by John Rupp of Covington & Burling, a

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Washington-based law firm. All funding arrangements and contact with scientists is arranged through this firm.

¶321673508-3525 at 3509 (US 28585).

¶3621. Boyse then proposed to Rupp that an identical program be set up in Latin America. The project was projected to cost BATCo and Philip Morris $340,000 in the first year to recruit 14 consultants in five Latin and South American countries. Boyse wrote:

¶It is proposed to develop a similar programme in Latin America. . . .

The programme would be managed by Covington & Burling. Overall manager of the project would be the responsibility of Mr. John Rupp, with associates such as Mr. Chris Proctor contributing to the recruiting and training of the scientists. . . .

Covington & Burling and Philip Morris already have scientific contacts in South America who could be used as starting points for recruitment. . . . Once scientists have been recruited, training in ETS issues would take place at orientation sessions held at regular intervals with the participation of Covington & Burling. . . . Once scientists have some training, a programme of activities would be put together. . . .

¶321673508-3525 at 3510 (US 28585).

¶3622. A July 24, 1991 document, titled "Latin American Candidate Recommendations," listed consultant selections by Covington & Burling, and provided the details and qualifications of many scientists, but recommended only those who whose views had been verified. For example, Carlos Alvarez from Buenos Aires had "already consulted for the companies in lawsuits involving cardiovascular disease from ETS exposure. Clearly, he shares the industry view on this issue." Eduardo Gros not only smoked, but had previously worked with BATCo scientist Chris Proctor. Covington & Burling had verified that Osvaldo Fustinoni of Argentina "does not believe that ETS poses a major health risk." 2503001504-1519 (US 85542). On the other side, Morton Schienberg of Brazil was rejected because he and his wife "despise cigarettes and do not let anyone smoke in their house or around them." Covington & Burling rejected Dr. Rodrigo Villalba, a smoker, because he would not smoke "in front of his children or his patients because he believes ETS poses a hazard to them." Dr. Oscar Aldrey was not selected because he "believes that ETS is worse than mainstream smoke because it is not diluted by a filter." 2503001504-1519 at 1517, 1519 (US 85542).

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¶3623. In addition to Covington & Burling, Shook, Hardy & Bacon attorneys also served as intermediaries between the scientists and the companies and oversaw the program. In a letter dated June 28, 1988 from Hoel to Todd Sollis of Philip Morris, Hoel wrote:

One of the most important roles assumed by SHB in the scientific development of the ETS issue is that of liaison between the researchers and sponsoring members of the tobacco industry. By facilitating communication among all parties involved, maximum cooperation can be achieved. This helps assure PM of a ready source of scientists prepared to address the ETS issue at public hearings and scientific conferences as needed.

¶2015007199-7207 at 7206 (US 20311).

¶3624. An April 1990 Tobacco Institute "Management Plan Progress Report" documented that the Tobacco Institute continued to "identify and recruit academic researchers for the scientific witness program," another name for the consultancy program. TIMN194351-4398 at 4363 (US 87418).

¶3625. Defendants, both individually and collectively (e.g., through the Tobacco Institute), monitored the direction of the ETS Consultancy Program. For example, Anthony Andrade at Philip Morris emphasized industry control over the consultant projects in a September 1991 memorandum:

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I believe we should recommend formal quarterly or semi-annual reviews of the Covington & Burling consultant program to ensure that resources are being appropriately allocated. For example, we need to be in a position to direct C&B to expend more of its resources on Eastern European matters if the problems in that area take a higher priority than ETS issues within the European Community nations.

¶2023856321-6328 at 6328 (US 22037).

¶3626. In a March 14, 1990 "SECRET" document from Sharon Boyse (Blackie), titled "Far East ETS Project Update," Boyse noted:

The priorities and budget for the programme were subsequently discussed at a meeting of representatives from supporting companies (BAT/B&W, Philip Morris, R.J. Reynolds, Rothmans, and JTI) in Hong Kong on March 7th. Details of that meeting are now reported. . . . It was agreed that regular meetings of representatives from the five major supporting companies (BAT/B&W, PM, RJR, Rothmans, JTI) will be essential now that there are so many companies and countries involved. Setting of priorities and evaluating progress will of necessity be an ongoing process throughout the year. Meetings will therefore be held every 2-3 months in Hong Kong. Covington & Burling will continue to produce regular written report.

¶30541874-1876 at 1874 (US 85567).

The Indoor Air Pollution Advisory Group (IAPAG)

¶3627. The Tobacco Institute was the hub of Defendants' domestic ETS consultancy program, which included a group set up by Covington & Burling and several U.S. consultants in 1985 called the Indoor Air Pollution Advisory Group (IAPAG). Schwartz WD, 7:6-21.

¶3628. IAPAG activities were billed through the Center for Environmental Health and Human Toxicology (CEHHT), a consulting firm founded by consultants Sorell Schwartz and Philip Witorsch in late 1982 to enable the professors to perform consulting work beyond the 20 percent time limit imposed by Schwartz's employer, Georgetown University. Schwartz WD, 2:25-3:9. Schwartz and Witorsch did their consulting work through CEHHT, and the Tobacco Institute covered CEHHT's basic operating costs. 2026335488-5492 at 5489 (US 26860).

1359

¶3629. IAPAG consultants traveled throughout the country testifying at public hearings of many kinds. IAPAG consultants also: "reviewed, evaluated and critiqued scientific literature updated the database, educated and prepared scientific witnesses at direction of the Tobacco Institute, coordinated their interaction with the EPA, prepared scientific papers, participated in meetings." Schwartz WD, 5:7-9; see also TIDN0007373-7378 (US 77020); 2023542584-2586 at 2584 (US 87329); TI07560820-0821 at 0820 (US 65475).

¶3630. The Tobacco Institute employed IAPAG to rebut evidence confirming the association between ETS and lung cancer. Tobacco Institute vice president Walter Woodson wrote an internal memo dated January 15, 1988:

I would like to know IAPAG's plans for dealing with new studies. For example, Balter mentioned three new cancer/ETS publications from late 1987, but it was unclear – to me, at least – what, if anything, they are doing to rebut new work in this and other ETS areas. Also, I'd like to know if IAPAG papers are underway for publication in peer-review journals. Such articles are a key reason for IAPAG existence, in my view.

¶TIOK0023599-3602 at 3600 (US 65701).

¶3631. The billing procedures and contacts between IAPAG consultants and the cigarette manufacturers obscured their close connection. As noted already, the billing for IAPAG's activities was done through CEHHT. See e.g., TI42550751-0754 (JD 54135). Rupp served as a buffer between Schwartz and the Tobacco Institute. Schwartz, through his consulting from CEHHT, billed Covington & Burling. Rupp kept the Tobacco Institute informed of IAPAG's activities. Checks to

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¶IAPAG and CEHHT came from Covington & Burling, even though the money originated from the Tobacco Institute. Schwartz WD, 8:1-25.

¶3632. The Tobacco Institute decided where to send the consultants to make statements. Schwartz WD, 3, 8; TI07560615-0619 at 0618 (US 65472).

¶3633. During the 1980s and 1990s, CEHHT billed the tobacco industry millions of dollars for their services. The Tobacco Institute often spent tens of thousands per month on CEHHT fees. In 1986 alone, Schwartz's consulting firm received $1,032,000 from the Tobacco Institute. TI07560820-0821 at 0820 (US 65475); 87824794-4797 (US 32070); 87824798-4801 (US 32071); TI42550751-0754 (JD 54135); TI42550732-0740 (JD 54140); TI43990461-0455 (JD 54155); TI44110204-0205 (JD 54157); TI44110160-0162 (JD 54167); TI43370130-0132 (JD 54170); TI43370125-0127 (JD 54173); TIMN431124-1124 (US 62974); TI10160667 (US 65485).

¶3634. Schwartz's public appearances and the public relations aspect of his alliance with Defendants was discontinued in 1988 after he became uncomfortable providing the "unabashed advocacy" urged by the industry. Schwartz also became uncomfortable with the public testimony which the Tobacco Institute required of IAPAG. Schwartz WD, 12:22-26, 14:27-16:17. TI07560744-0746 at 0744 (US 62246); TI07560611-0614 at 0611, 0613 (US 65471); TI07562260- 2261 (US 62247).

The Appearance of "Independence"

¶3635. Through their recruiting and training of consultants around the world, Defendants created a cadre of seemingly independent consultants to support the industry's position on secondhand smoke and to create the impression that a legitimate controversy existed among independent scientists. The global effort to create and manage this program required intense coordination among the companies and their counsel.

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¶3636. The need for seemingly independent consultants emanated in part from an internal recognition that the industry had little credibility with the public and among regulatory bodies. As stated in a July 24, 1991 BATCo summary of the program:

It has been apparent to the industry for some time that we do not have sufficient credibility to put forward a position on ETS (or any other issue for that matter) unless we can identify independent scientists who are saying the same thing. If independent scientists back up our position, it becomes more credible, not only to the general public and the media, but to politicians and other decision-makers. . . .

Although it is essential for the industry to speak up about its positions, there are some things that are better left to independent scientists to express.

¶300522762-2767 at 2762 (US 22223).

¶3637. On July 15, 1988, company representatives from Philip Morris, Reynolds, BATCo and others, along with Covington & Burling and Shook, Hardy & Bacon lawyers attended a "Joint Meeting on ETS" at which they discussed the continuing industry ETS strategy of generating "marketable science" to use for public relations purposes. As one company representative told the group, "In providing this [ETS] information, the industry must be inconspicuous. Otherwise, he argued, the public will suspect the authenticity of the information." He recommended the use of third parties to convey Defendants' message. 2021548222-8235 at 8234 (US 20349).

¶3638. Defendants sometimes used long-time consultants, such as George Leslie and Francis Roe, to carry out recruiting and training tasks, so as to put more distance between the consultants and the tobacco industry. Leslie and Roe also assisted Rupp in identifying and recruiting additional industry ETS consultants in both Europe and Asia. 2500048598-8600 (US 75372); 300541877-1877 (US 85568); 2501474253-4259 at 4256-4257 (US 22017).

1362

¶3639. As with CEHHT, the consultants would bill Covington & Burling for their work, then Covington & Burling would bill the companies, to avoid direct payments from the companies themselves. See, e.g., 2023856341 (US 23713); 2023856342 (US 23714); 2023856343 (US 23715); 2023856344 (US 23716); 2023856345 (US 23717); 2023856346 (US 23718); 2023856348-6349 (US 23719*).

¶3640. In a memorandum dated December 12, 1988 from Philip Morris's Stig Carlson to Covington & Burling attorney Charles Lister, Carlson listed some specific industry ETS initiatives in Scandinavia, emphasizing the need to use different "contact" points to "avoid the infamous 'fingerprints'" of the cigarette companies. 2501255446-5447 at 5446 (US 85562).

¶3641. In Boyse's (Blackie) July 1991 review and summary of the program, she wrote:

It was agreed that the kind of program that had been going on in the Far East and was being developed in Latin America was ideal, because the scientists were of good quality, were largely prepared to enter a more public arena than scientists normally would, and the programme was handled in such a way thanks to Covington & Burling that there was no direct association between the scientists and the tobacco industry. . . .

For this type of programme it is absolutely essential to ensure that administration of the programme and contact with consultants is made quite independently of the tobacco industry, and that no tobacco industry executives have contact with them.

¶300522762-2767 at 2763, 2767 (US 22223).

1363

Defendants' Use of Consultants

¶3642. Through the consultancy program, the tobacco industry was successful in reaching "public, scientific and governmental audiences." 2500048956-8969 at 8967 (US 27901). In the words of B&W counsel Kendrick Wells: "The consultants groups' operation is essentially a public relations program, not a scientific operation." 401033325-3328 (US 24099).

¶3643. In a Philip Morris January 31, 1989 report titled "Boca Raton Action Plan," the company details its worldwide ETS initiatives, including placing consultants in scientific seminars, using consultants to resist aircraft smoking bans, using consultants to oppose restaurant smoking restrictions, the creation of Burson-Marsteller "News Bureau" programs in Europe for media distribution, and the coordination with other industry groups, such as INFOTAB and CORESTA. 2021595753-5910 (US 85541).

¶3644. In July 1989, after less than two years of participating in the program, Philip Morris vice president Andrew Whist reported to Philip Morris International president Geoffrey Bible (who later became CEO of Philip Morris Companies) that:

Several hundred specific activities or events have been completed. These have included numerous press briefings, repeated briefings of important government officials, the publication of a number of review articles on the science of ETS, several air quality monitoring studies, convening of a number of scientific conferences, submission of comments on smoking restriction proposals being considered in a number of countries, testimony before a variety of legislative bodies, preparation and submission of affidavits and offers of proof in cases involving claims concerning ETS, publication of a book ("Clearing the Air") that seeks to put ETS into proper perspective, drafting of two additional books on ETS and indoor air quality issues, and approximately 100 separate presentations at major international scientific meetings challenging the unwarranted health claims that have been made concerning ETS.

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¶2023034623-4632 at 4623 (US 26775).

¶3645. This July 1989 overview of the ETS Consultancy Program provides a snapshot of the size and complexity of the program. At that point, 70 scientists had been recruited in Europe, Asia, Australia, and Canada. This number included 49 scientists who were university-affiliated and 21 who were private. The consultants were sent to 36 scientific conferences in 1989, published some 43 papers, published three books in seven languages, delivered over 70 scientific and political briefings, gave over 1100 media interviews, and signed ten affidavits in an Australian AFCO lawsuit. According to the 1989 memorandum from Whist, this effort was managed by some 30 attorneys and cost approximately $3.5 million in consultant and legal fees in 1989. 2500048772-8781 (US 85527). This was before Defendants expanded the consultancy program into Latin America.

¶3646. Similarly, an October 1989 report from Covington & Burling provided Defendants a nine-page list of "conferences attended by consultants, recent publications, and ongoing projects" in Europe. 2500019903-9911 (US 25337).

¶3647. The Tobacco Institute played a pivotal role in retaining American and foreign consultants domestically:

Scientific Witness Team. TI now has 23 consulting scientists whose businesses are to market their scientific expertise. Their principal mission is to testify before state and local legislative bodies on ETS and indoor air quality issues. They also respond to adverse articles in scientific technical, and general audience publications by submitting letters to editors. They attend and report on meetings of scientific organizations. . . . Members of the scientific witness team have made 48 legislative appearances and conducted 30 media tours to date this year. . . .

Foreign Scientists. This strategy is to bring a "foreign" perspective on ETS science to U.S. journalists through the use of the industry's overseas consulting scientists. Through editorial board briefings and

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interviews with science and health reporters, these scientists will suggest that the U.S. understanding of ETS science is skewed by anti-smoker media hype, and that the U.S. response to ETS science is out of step with the rest of the world. . . . Next year we anticipate foreign scientists conducting at least one media tour per month in connection with attendance at scientific meetings.

¶TIDN0004239-4248 at 4239-4240 (US 75287).

¶3648. The Tobacco Institute's consultants attempted to critique and undermine scientific studies that identified ETS as a health hazard. For example, in 1993 alone:

• The Tobacco Institute paid consultant Gio Gori $3,555 to write a letter to the editor of the Journal of the National Cancer Institute ("JNCI") captioned: "Environmental Tobacco Smoke: The Price of Scientific Uncertainty." The letter appeared in the journal on January 6, 1993. The Tobacco Institute paid Gori another $4,137.50 to write an Op-Ed newspaper submission on the Environmental Protection Agency's Risk Assessment for the Wall Street Journal. TIMN0435220-5272 at 5225, 5226 (US 21734).

• The Tobacco Institute paid Peter Lee $4,000 to write a response to letters to the editor of Environment International that appeared on January 29, 1993, disputing the conclusion that ETS exposure caused lung cancer and mortality. TIMN0435220-5272 at 5253 (US 21734).
• On April 10, 1993, the Tobacco Institute paid Gio Gori $4,000 to write a letter to Lancet, disputing an editorial that had found the Environmental Protection Agency's Risk Assessment provided a firm regulatory basis for increased social action to minimize the public's exposure to ETS. TIMN0435220-5272 at 5231 (US 21734).
• In June 1993, the Tobacco Institute paid Peter Lee $5,000 to write a letter to the editor of Journal of the National Cancer Institute disputing results of an ETS study by Stockwell that post-dated the EPA Risk Assessment and found a link between ETS exposure and lung cancer in nonsmoking women. The letter was published along with two other letters

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from Tobacco Institute consultants Paul Switzer and Max Layard. TIMN0435220-5272 at 5247 (US 21734).

¶None of the letters disclosed that tobacco industry money had funded them. TIMN0435220-5272 at 5247 (US 21734); 2046342683-2686 (US 20469).

ARIA and IAI

¶3649. The tobacco industry used its consultants to create larger organizations as well. Through these organizations, the industry's ETS consultants arranged conferences and published papers to get the industry's position on passive smoking into the scientific literature. 2500019903- 9911 (US 25337); 2500048956-8969 (US 27901).

¶3650. The industry's ETS consultants in the United Kingdom, along with Covington & Burling, formed a group called Association for Research on Indoor Air ("ARIA") in 1988. 2500048956-8969 at 8960 (US 27901); 300538942-8943 (US 85552). According to Chris Proctor's record of an October 25, 1988 meeting in London, Philip Morris and Covington & Burling, along with the three ARIA founding consultants Francis Roe, George Leslie, and Frank Lunau, presented the ARIA group to Reynolds, BATCo, and other British manufacturers. 400974548-4550 (US 47525).

¶3651. ARIA was presented as a "Philip Morris initiative" set up in order to create a "group of scientists in the UK that will comment on ETS issues." Roe emphasized the value of ARIA's perceived independence to the other manufacturers and the industry, although the consultants were aware of the funding source:

He stressed at length that the 16 individuals currently operating for ARIA were totally independent and that there was to be no formal contact between the individuals (not to be termed consultants) and the industry. . . .

1367

It was suggested that the position of Covington & Burling allows the members of each group to remain independent of the industry, though all know that it is tobacco money that is funding the exercise.

¶400974548-4550 at 4548-4549 (US 47525).

¶3652. In a memorandum dated October 10, 1988, B&W in-house counsel Kendrick Wells wrote Nick Cannar at BATCo that the industry also retained a public relations firm in London to generate material for distribution that was "intended to 'leverage' the statements" made by ARIA and its members. 401033325-3328 at 3325 (US 24099).

¶3653. The public relations firm was in fact the London office of Burson-Marsteller, who placed consultant statements in the European media. Burson-Marsteller, which coordinated their media activities with Philip Morris and Covington & Burling. 2500048951-8955 (US 85571); 2500048939-8941 (US 85572); 2500048926-8929 (US 85573); 2500048846-8847 (US 85574); 2500048931-8932 (US 85554).

¶3654. Covington & Burling organized, monitored, and funded the ARIA organization. 2500048956-8969 at 8960 (US 27901); 300538945-8954 (US 85549); 300541877-1877 (US 85568); 300538976-8979 (US 88778); 2501474253-4259 at 4256-4257 (US 22017); 2023856337-6349 (US 23712).

¶3655. In 1989, ARIA created an organization called Indoor Air International (IAI), a group to address scientific issues related to indoor air quality around the world. In a March 1, 1990, memorandum on the European Consultancy Program, John Rupp noted:

Our consultants have created the world's only learned scientific society addressing questions of indoor air quality. The society (Indoor Air International) is seeking memberships from all those interested in IAQ issues throughout the world. It will soon have its own periodic newsletter . . . its own scientific journal. . . . The

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society will sponsor meetings and conferences . . . and thus can serve as an independent and accepted source of ideas and research regarding IAQ to the public and the scientific community. . . . We are of course including Asian and American consultants in the society, so as to provide worldwide coverage on IAQ issues.

¶2500048956-8969 at 8960 (US 27901).

¶3656. IAI was founded at an ARIA meeting in October 1989 exclusively by Defendants' paid European ETS consultants, notably Francis Roe, Frank Lunau, George Leslie, and Max Weetman. Most of the key members of ARIA were close friends of Roe. Covington & Burling managed the creation of IAI, publicly presented it as an "international learned society," and drafted the organization's bylaws. 2021598978-8991 at 8981, 8986 (US 23604); 2028440936-0950 at 0940 (US 75243); 300538942-8943 at 8942 (US 85552). IAI was funded by Philip Morris and BATCo. All billing was processed through Covington & Burling to avoid any direct connection to the industry. 300538942-8943 (US 85552); 300511564-1568 (US 85553); 2500048951-8955 (US 85571); 2500048931-8932 (US 85554); 2500049060-9062 (US 85555); TI43370125-0127 at 0125 (JD 54173).

¶3657. Rupp stated in his February 14, 1990 Asia consultancy program update that IAI intended to begin publishing a journal the next year. Rupp reported that Asia industry consultants were preparing to write articles for the journal, and several consultants were serving on the journal's editorial board. 2500048976-8998 at 8987-8988 (US 23007).

¶3658. IAI's publications and newsletters omitted any connection to the tobacco industry or tobacco law firms. Instead, its publications stated that the organization was merely a "learned society" dedicated to "promoting indoor air quality." 2028467035-7042 (US 85559); 2028467029- 7034 (US 85560); 2023545366-5369 (US 23680); 325297289-7360 (US 85561).

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¶3659. On September 5, 1991, Anthony Andrade wrote Mary Pottorff to voice his concern that Philip Morris should avoid direct involvement with IAI consultants:

C&B should not recruit as consultants any scientists actively working for S&T. . . . There is a grave risk that IAI members may be compromised if they have a direct relationship with Philip Morris S&T. The best example would be Dr. Weetman. Dr. Weetman is obviously a critical leader in the C&B consultant program and IAI, and his potential usefulness could be jeopardized by his direct consulting relationship with PM S&T. Dr. Skrabanek is a second example.

¶2023856321-6328 at 6321-6322 (US 22037).

¶3660. IAI to some extent took over the law firm role of organizing and managing scientific conferences. According to a June 6, 1990 memorandum from Jim Newsom at Shook, Hardy & Bacon to other Shook, Hardy attorneys, the firm had a May 1990 meeting with Philip Morris's Steve Parrish to discuss ETS initiatives going forward. One topic was the industry's continuing use of IAI:

We also briefly discussed whether we should be organizing conferences. Don [Hoel] had been responsible for these projects in the past. The newly-formed organization, IAI (Indoor Air International), plans to hold one indoor air conference each year. We told Steve [Parrish] that we would be willing to organize conferences depending on his views on how many conferences are needed , etc.

¶2023239673- 9695 at 9690 (US 26781); see also 2028467016-7019 at 7018 (US 85558).

¶3661. Geoffrey Bible, Executive Vice President of Philip Morris International, was kept informed as to the progress and achievements of the ETS Consultancy Program, and specifically ARIA and IAI. In 1991 Helmut Gaisch provided Bible an update:

ARIA, an informal group, and IAI, a registered association, have made quite some progress during the recent months. It should be stressed that most act independently and are seen to be independent of us. IAI, Indoor Air International, who deal with the broad topic of the indoor environment, have a newsletter and a learned journal

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published by the respected Swiss scientific publishing house Karger. IAI have conducted large and successful international meetings in Lisbon and Montreux. IAI will jointly sponsor meetings in the near future with universities, government agencies and independent societies in Paris, Pavia, Perogia, Budapest, Prague, Bangkok, Bratislava, Athens and Rotterdam. . . . IAI members have met with governmental ministers and officials in several countries. . . . In all, no other resource gives the industry any similar access to the scientific community, government and those who make decisions about IAQ issues and standards. The key to this success is that an institution of growing professional authority was created, an institution that has developed an identity of its own.

¶2023856111A-6112 at 6111A-6112 (US 23708*).

¶3662. In 1995, the IAI changed its name to the International Society of the Built Environment ("ISBE") and the IAI journal's title was changed to "Indoor+Built Environment." The ISBE is still in existence today, continues to publish its journal and hold conferences, and is still run by industry ETS consultants. TLT0500003-0006 at 0005 (US 65083); 2063651094-1096 (US 75250).

The Industry's ETS Consultants Cited and/or Published Without Disclosure of Tobacco Industry Ties

¶3663. Defendants used the work of their seemingly independent consultants disputing the health risks attributable to ETS to gain public support for their position by rarely disclosing the depth of their involvement. For example, articles in the Hong Kong Standard and South China Morning Post identified British ETS consultant and ARIA president George Leslie simply as the "head of Associates for Research on Indoor Air UK," and identified Rupp only as "a senior US scientific adviser and member of the American Civil Liberties Union." 2501204903-4903 (US 85577); 2501204902-4902 (US 85544); 87780965-0967 (US 85589).

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¶3664. There are many other examples of newspaper and journal articles where consultants were quoted without disclosure of tobacco industry funding. See, e.g., 2501205177-5179 at 5178 (US 85579); 2048551288-1289 at 1288 (US 85581); TOMN343061-3061 (US 85582); 86022880- 2880 (US 85583); 86022881-2881 (US 85584); 2505533679-3705 (US 22898); 2026127628-7634 (US 85564).

¶3665. In 1991, the book "Other People's Tobacco Smoke", a compilation of articles, all written by tobacco industry consultants, was published. The book was edited by A.K. Armitage, industry consultant and member of ARIA. However, the only mention of industry involvement was one half of a sentence by the editors at the end of a brief "Acknowledgments" paragraph thanking both their wives and Philip Morris International for their "cooperation and assistance." 2051809899- 10096 at 9908 (US 87373); 2501152077-2091 (US 25597); 2081369203-9220 (US 27796); 2023034933-4946 (US 87334); 2500019903-9911 (US 25337); 2023592986-2998 at 2991 (US 85548); TIDN0019217-9268, at 9236, 9238, 9239, 9244 (US 85597); TIDN0011870-1870 (85635); 2501474296-4301 at 4299-4300 (US 27955); 2023591657-1659 (US 23692*); 2023591835-1837 (US 23695); 2023591891-1894 (US 23696); 2023591915-1918 (US 23698); 2023591962-1965 (US 23699); 2023591985-1988 (US 23700).

¶3666. The Tobacco Institute also tried to create the illusion of independence in its press releases and other publications attacking research implicating ETS as a cause of disease. These press releases cited industry consultants and conferences without reference to their tobacco industry source, instead describing them as:

• "independent scientific teams" (referring to IT Corporation, a Special Account 4 recipient) 92756893-6894 at 6893 (US

1372

85585); 86002410-2413 (US 85716); 86002393-2396 (US 86359).

• "an expert on substances in indoor air" (referring to David Weeks, a paid industry ETS consultant) 92756893-6894 at 6893 (US 85585); TITX0025965-5968 at 5968 (US 85522); TIDN0019217-9268 at 9232-9233 (US 85597).
• "a prestigious panel of scientists at an international symposium" (referring to the industry's ETS consultants at the McGill Symposium) 87697659-7664 at 7660 (US 85586).
• "a US lawyer specializing in antitrust and trade regulation law" (referring to John Rupp) 87780965-0967 at 0965 (US 85589).
• "Maurice LeVois, Peter Lee, and Joseph Fleiss" (long-time paid industry consultants) who all provided an "objective review" 87697701-7772 at 7701-7702 (US 85587); TIDN0019217-9268 at 9220, 9226-9227 (US 85597).
• "independent scientists" Flamm and LeVois (noting ties to Federal Government including FDA, CDC, VA, but failing to disclose ties to tobacco industry) 91806529-6529 (US 88597); 87698341-8342 (US 85588); TIDN0019217-9268 at 9220, 9226-9227 (US 85597).
• "[a]n independent analysis of more than 300 major private and public buildings by ACVA Atlantic, Inc., an indoor air quality analysis firm, identified tobacco smoke as a major contributing factor to air quality complaints in only four percent–twelve buildings." TLT0961875-1888 at 1881 (US 85591).

¶3667. The articles, letters, and submissions of the industry consultants to regulatory bodies were sometimes reviewed and edited by lawyers prior to publication. TIMN0435220-5272 (US 21734); TI00581616-1629 (US 62969); Dawson WD, 114:15-116:4; 680707970-7973 at 7970 (US 92065); Parrish TT, 1/27/05, 11387:25-11393:1.

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¶3668. For example, written responses by industry ETS Consultant Peter Lee to James Repace and Judson Wells were revised by both Shook, Hardy & Bacon and Covington & Burling prior to submission to a journal. Similarly, Covington & Burling made revisions prior to submission to an article criticizing the EPA risk assessment by industry ETS consultants Flamm and Todhunter, and a letter to the editor by ETS Consultant Gio Gori criticizing an adverse study by Brownson. TIMN435220-5272 at 5222, 5223 (US 21734).

ACVA/HBI

¶3669. In June 1985, on the recommendation of the ETSAG, Defendants recruited John Graham "Gray" Robertson, owner of a small ventilation inspection firm called Air Conditioning and Ventilation Access ("ACVA") and later renamed Healthy Buildings International (HBI), to test air samples from homes in Boston and Florida. Robertson WD, 12:19-14:16; TLT0270555-0555 (US 85619); 504221588-1593 at 1591 (US 85620); 521028861-8861(US 52692*); TIDN0011695-1704 at 1695 (US 62594). Defendants funded the ACVA home testing as a CTR Special Project. Robertson WD, 15:7-11.

¶3670. Although not a scientist, Robertson, by January 1986, had become associated with the Indoor Air Pollution Advisory Group (IAPAG). Robertson WD, 18:13-20, 20:5-21:4 and 21:12- 22:13; Schwartz TT, 10/25/04, 3580:11-21. Over time, Robertson became one of the industry's most traveled ETS consultants.

¶3671. Defendants funded Robertson's ETS activities, including making statements at legislative and regulatory hearings on indoor smoking bans and initiating projects and studies that questioned the adverse health effects of secondhand smoke. TIDN0002692-2701 at 2695-2697 (US 85605); TIDN0007373-7378 (US 77020); TIDN0016039-6045 at 6041-6042 (US 75289); Robertson

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¶WD, 12:19-14:16 (1985 home study); 51:8-53:13 (New York City study); 36:10-37:7 (1987 Tokyo Conference); 38:2-40:12 and 103:3-19 (1988 Swiss study for Philip Morris); 41:6-14 (1988 London Conference); 41:15-42:12 (1989 Brussels Conference proceedings paper); 45:5-46:11, 46:13-16, 48:5-50:13 (1989 CIAR-funded 585 Building Study); 62:14-64:4 (1989 McGill "symposium"); 61:3- 9 (1989 Building Council on Indoor Air position paper); and 87:5-10 (1992 Athens Conference).

¶3672. Defendants identified "Robertson and his colleagues at HBI" as "our foremost resources in our indoor air quality strategy" and promoted him as a "building doctor" and an expert in "sick building syndrome." [A situation in which building occupants experience adverse health effects that appear to be linked to time spent in a building but are not linked to a specific cause.] TI01140124-0133 at 0128 (US 62100); TLT0880001- 0024 at 0004 (US 87336). Robertson's work sought to examine and improve indoor air quality particularly through improved ventilation. Downplaying ETS exposure, Robertson took the position that banning indoor smoking was unnecessary to improve indoor air quality and that the "sick building syndrome" was the real problem. TI01262206-2209 (US 62105); TI12990109-0118 (JD 080482); Simmons WD, 5:3-10; TIOK0023878-3878 (US 77107); TIDN0002692-2701 at 2695-2696 (US 85605); 87780965-0967 (US 85589).

¶3673. Internally, Defendants questioned the rigor of Robertson's testing methods and the quality of his data. In a confidential note to BATCo and B&W, Sharon Boyse (Blackie) summarized a meeting with Reynolds on January 29, 1988. Boyse wrote: "RJR pointed out that although the abilities of Gray Robertson . . .as a presenter are undeniable, this is not the case for his scientific abilities. They felt, in particular, that his methodology could not stand up to scientific scrutiny, and that some of his data was questionable." BWBU242341-2343 at 2343 (US 21136). Project coordinator Michael Michaelson at Covington and Burling made a similar observation of Robertson's methods in 1985: "In summary, the data generated by the ACVA home study in Boston are deeply flawed and not subject to meaningful interpretation." 80406377-6385 at 6385 (US 23476); 504933703-3707 at 3704 (US 24220).

1375

¶3674. Other comments disparaging HBI's methods were made by senior tobacco company scientists in 1991 in reviewing a proposal eventually rejected for CIAR funding. 87776361-6362 (US 56325); 87776358-6359 (US 56324).

¶3675. Nevertheless, by 1994 Robertson and other HBI spokesmen had made over 125 legislative appearances and given over 700 media interviews. TLT0600106-0120 (US 65099); TLT0860022-0022 (US 87367); TLT0860023-0023 (US 87368); TIDN0010792-0792 (US 85637); TIDN0012371-2373 at 2372 (US 85638).

¶3676. Defendants maintained the perception of an arm's length relationship with Robertson and HBI. At a 1987 ETS Strategy Meeting held at Philip Morris International, Defendants warned that HBI must "be perceived to be at arm's length from the industry, including in media briefings. Its role at most should seem as yet another third party expert amongst others." 2046754737-4740 at 4739 (US 21646).

¶3677. By 1987, HBI was on monthly retainer to the Tobacco Institute and was paid various amounts at various times as well as its expenses. Robertson WD, 42:13-43:1, 26:14-16, and 30:14- 15; TIDN0004200-4235 at 4202 (US 77018); TIDN0020081-0085 at 0082 (US 85612); TIDN0023739-3740 at 3740 (US 85613); TIDN0008801-8801(US 85614); TIDN0025605-5612 at 5606 (US 85615); TI10160671-0671 (US 65486).

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¶3678. Through Robertson's work for Defendants, HBI went national, and eventually global. HBI grew from a small ventilation duct inspection outfit with an annual revenue of about $250,000 to a multi-national business with over $2.5 million in annual revenue; Robertson became an indoor air quality expert in forums around the world. Robertson TT, 10/21/04, 3332:4-3339:15, 3406:1- 3409:16; Robertson WD, 3:11-4:8, 5:1-6:3, 64:5-65:16, and 73:4-74:11; see also TLT0860122-0129 (US 87341); 2501026750-6761 at 6753 (US 85609); 2029370437-0437 (US 26896). In 1990, the Tobacco Institute paid for HBI to expand by opening regional offices in the United States and abroad. Robertson WD, 56:16-58:13, 64:5-65:16; TIDN0010085-0093 (US 85617*).

¶3679. Philip Morris, through Covington & Burling, reimbursed costs incurred by HBI. Expenses included hundreds of thousands of dollars associated with Healthy Buildings International Magazine. 2063935035-5035 (US 39877); Robertson WD 66:15-72:12; 2023590035-0036 (US 85621); TIDN0010768-0769 (US 85622); TIDN0011756 (US 85623); 2029370155-0160 (US 87343); 2029370138-0139 (US 87355); 2503001929 (US 85611); TIDN0021382-1383 at 1382 (US 85626); 2043709159A-9159A (US 46241); 2029370153-0161 (US 87356); 2029372111-2112 (US 87357); 2503001929-1929 (US 87359). The full color, bi-monthly magazine presented Defendants' views to a wide range of recipients around the globe. TLT0860028-0039 (US 87344). At least seven issues of "Healthy Buildings" were published between 1990 and 1991. See, e.g., TLT0850001-0008 (US 87346); TLT0850073-0084 (US 87352).

ETS Symposia

¶3680. Defendants sponsored and planned various ETS symposia or conferences throughout the world to generate data which supported the industry's ETS position. These conferences included a 1974 Bermuda conference, a 1983 Geneva workshop, a 1984 Vienna conference, a 1987 Tokyo conference, the 1989 McGill "symposium," and others. The presentations made at these conferences were thereafter publicized in the United States by Defendants as examples of independent scientific statements in support of the industry's position that ETS was not a proven health hazard. In a June 28, 1998 memorandum from Hoel to Philip Morris's Todd Sollis describing Shook, Hardy & Bacon's ETS efforts for the industry, Hoel bragged:

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Since 1974, SHB has been actively engaged in the organization and development of ETS conferences and symposia. . . . Once the proceedings from these conferences are published, they provide information that is useful in dealing with the attacks of anti-smoking activities.

¶2015007199-7207 at 7206 (US 20311).

The 1974 Bermuda (Rylander) "Workshop"

¶3681. Long-time industry consultant, Swedish professor Ragnar Rylander proposed to Philip Morris in July 1973 a "workshop" on the effects of passive smoking on nonsmokers. 1000259865-9865 (US 85708); 1000259799-9803 (US 85709).

¶3682. The purpose of the workshop was to generate findings favorable to the industry's position opposing smoking restrictions. Philip Morris's Helmut Wakeham strongly recommended industry financing of the workshop to counteract smoking legislation. 1000053116-3116 (US 85707). In a February 26, 1974 letter to Imperial Tobacco, Wakeham summarized the workshop as follows:

We are looking forward to the report of this workshop. We hope it will provide us with a document we can use to quiet some of the hysteria on the subject. Our main concern is the legislation restricting smokers now being passed in some of the local governments in the U.S.A. A copy of the workshop outline is enclosed for your information.

1378

¶2015035555-5556 (US 87376).

¶3683. The workshop was held in Bermuda on March 27-29, 1974. Its proceedings were published as a book. The only attribution to Defendants was in the preface: "The Workshop was supported by Geneva University through a grant from "Fabriques de Tabac Reunies." The proceedings did not disclose that FTR was and is the Philip Morris subsidiary in Neuchatel, Switzerland. 690019211-9302 at 9216 (US 88462).

¶3684. In addition to funding the workshop through FTR, Helmut Wakeham of Philip Morris and Don Hoel of Shook, Hardy & Bacon helped Rylander plan the workshop, choose the participants, and publish the results. 2015035615-5615 (US 85710); 2015035611-5611 (US 89406); 1000259703-9703 (US 85713); 1000260272-0272 (US 85714); 1000259790-9790 (US 87036). 1000259784-9784 (US 85717); 2015035615-5615 (US 85710).

¶3685. Later, Rylander submitted drafts of the workshop proceedings to Philip Morris and Shook, Hardy & Bacon for review and comment before submitting them for publication in the Scandinavian Journal of Respiratory Disease. 1000259693-9693 (US 86613); 1000259703-9703 (US 85713); 1000260272-0272 (US 85714); 1000260253-0253 (US 89407).

¶3686. The 1974 Bermuda papers were incorporated into a broad industry "Position Paper" on passive/public smoking distributed to Defendants as part of the operations of ICOSI, the international tobacco industry group. ICOSI distributed this "Position Paper" in order to coordinate the responses of the manufacturers on a number of smoking and health issues. With respect to passive smoking, the position paper stated:

In 1974, a workshop (organized by, among others, Dr. Rylander of the Universities of Geneva and Gothenburg) was attended by scientists from all over the world to consider the health consequences of

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atmospheric tobacco smoke. These scientists were unable to conclude that cigarette smoking is a hazard to non-smokers.

¶513886735-6773 at 6737-6738 (US 87377); 500876807-6812 (US 87378).

¶3687. The 1974 conference was the beginning of a 25-year financial relationship between Rylander and all cigarette company Defendants. He was first funded through the industry's Special Account 4 from 1975 to 1989. 1005122219-2222 (US 20214); 507875857-5859 (US 20795); 507876993-6994 (US 20799); 86002454-2457 (US 85776); 86002410-2413 (US 85716); 86002393-2396 (US 86359); ATX140000938-0939 (US 21122). His relationship with Defendants continued as a consultant to Philip Morris and as a CIAR Applied Projects researcher through 1999. 2063590583-0586 (US 85704); 2505442777-2960, 2905-2907 (US 25643*).

The Geneva (Rylander) Conference

¶3688. In 1981, the Tobacco Institute Executive Committee, the Committee of Counsel, and Shook, Hardy & Bacon, enlisted Rylander to assess the utility of another conference. 03554255-4255 (US 85641). An August 1981 memorandum from Don Hoel recorded his meeting with Rylander at Shook, Hardy & Bacon. In this memorandum, Rylander acknowledged that neither he nor a conference could give ETS a "clean bill of health"; however, he did believe that "he could bring a healthy skepticism" to the conference and to claims against ETS. Hoel and other Shook, Hardy attorneys reviewed Rylander's proposed list of invitees. 680542957-2962 at 2958 (US 85718). The Committee of Counsel approved the symposium in April 1982 and reported that approval to the Executive Committee. 01330467-0467 (US 26460); 01330468-0469 (US 85719).

1380

¶3689. Rylander provided his overview paper, used to introduce the conference, as well as the discussion papers presented at the conference, to Defendants for review and input prior to their use at the conference. 680542957-2962 at 2958 (US 85718).

¶3690. The conference was estimated to cost the industry between $65,000 and $80,000. 502122726-2727 (US 29551). A later memorandum from Brown & Williamson in-house counsel J. Kendrick Wells put the cost to Defendants at $70,000. 401033325-3328 at 3327 (US 24099).

¶3691. Rylander invited a number of other Special Account 4 and CTR Special Project recipients; several gave presentations at the symposium on work they had performed on behalf of the tobacco industry. These participants included Domingo Aviado, Anthony Cosentino, Melvin First, Roger Jenkins, and Theodor Sterling. None of their financial relationships with the industry were disclosed in the published proceedings of the Geneva conference. 301153900-4051 (US 85645).

¶3692. For example, Melvin First was paid via Special Account 4 for work that he performed in early 1983 under the title "Methods for Environmental Tobacco Smoke Measurement," the subject of First's presentation at the Geneva conference. 1005125153-5154 (US 36085); 03746173-6182 at 6179 (US 46500). Theodor Sterling received hundreds of thousands of dollars in CTR Special Project funds in 1982 and 1983 for work related to his Geneva conference topic. 03746173-6182 (US 46500). In addition, Sterling's financial ties to Defendants via CTR Special Project funding began in the early 1970s and continued into the 1990s. 2024699783-9808 (US 85647); 92613920-4198 (US 32132); 2015006938-6940 (US 85764). Domingo Aviado was also a long-time recipient of industry Special Project and Special Account funds at the time of the Geneva Conference. 92613920-4198 at 4107 (US 32132); 03638980-8982 (US 85649); 2015029462-9463

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¶(US 85652); 682070007-0008 (US 87369); 682070001-0002 (US 36081); 682069976-9997 (US 85654); 682069978-9979 (US 85656); 682069972-9973 (US 85657); 682069965-9967 (US 85658); 682069960-9961 (US 85659); 682069953-9954 (US 85660); 682069938-9940 (US 85661); 507875841-5843 (US 85662); 507875857-5859 (US 20795); 507876993-6994 (US 20799); 507875832-5834 (US 20794); 507876986-6987 (US 20798); 507875698-5700 (US 22953); 86002454-2457 (US 85776).

¶3693. The conference, organized by Rylander and Hoel, was held in Geneva in March 1983. The conference proceedings were then published in a book, titled "ETS-Environmental Tobacco Smoke, Report from a Workshop on Effects and Exposure Levels." The preface did include a statement that the conference "was supported by a grant from the Tobacco Institute, Washington, D.C., to the University of Geneva." 301153900-4051 at 3905 (US 85645). Rylander's extensive connection to the industry and the involvement of Shook, Hardy & Bacon in planning the conference were not disclosed in either the conference proceedings or any of the industry statements citing the conference's "conclusions." 301153900-4051 (US 85645); 2025364951-5007 (US 22173); 500642763-2772 (US 85644).

¶3694. Rylander's workshop summary, printed in a section titled "Workshop Perspectives," at the close of the published conference proceedings, stated that (1) the evidence linking ETS to any disease was "not considered conclusive"; (2) no passive smoking conclusions could be drawn from the data linking active smoking to disease; (3) the evidence of passive smoking causing effects on children was "contradictory"; (4) carbon monoxide was "not important from a health point of view"; and (5) the only proven effects of ETS were "irritation and annoyance." 301153900-4051 at 4042-4043 (US 85645).

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¶3695. The Tobacco Institute sent a report of the Geneva symposia conclusions to the U.S. Health and Human Services Secretary and Assistant Secretary, and to the Surgeon General. The Tobacco Institute circulated a press release about the conference to medical and health publications, medical schools, members of Congress, newspapers, journalists and state health officials. TI12882975-2977 (US 62400).

¶3696. Rylander submitted comments to EPA in 1990 on the draft Risk Assessment stating: "I am sorry to see our own workshops from 1974 [Bermuda] and 1984 [Geneva] are not cited, particularly as the former was the first to apply the terms environmental tobacco smoke (ETS)." 2026127784-7790 (US 92064).

¶3697. Defendants went on to cite the conference as seemingly independent authority in advertisements, brochures, news releases, and submissions to Congress, OSHA, and EPA in support of their opposition to smoking restrictions. None of these materials informed readers that the conference was funded by the industry or planned by an industry consultant (Rylander) and lawyer (Hoel). 520911538-1542 (US 85593); 500642763-2772 (US 85644); 2025364951-5007 (US 22173); TINY0020573-0577 at 0575-0576 (US 88600); TIFL0055129-5139 at 5131-5132 (US 88601); TIMN0120782-0785 at 0784-0785 (US 88602); 517001328-1330 (US 88603); 2070140494-0630 at 0595-0596 (US 88604).

¶3698. In May 1984, the Tobacco Institute published "Environmental Tobacco Smoke Workshops 1983 - 1984" claiming: "Three times since March 1983, participating researchers and other medical experts have declared, forthrightly and independently, that no conclusion can be drawn about whether ETS has any chronic health effects on the nonsmoker. . . . Another physician-researcher organized an ETS workshop in Geneva in March 1983 as follow-up to a similar conference in 1974. He concluded afterward that "irritation and annoyance must still be considered to be the most prevalent effects ascertained from exposure to ETS.'" 500642763-2779 at 2765-2766 (US 85644).

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The Vienna Conference

¶3699. Defendants organized an invitation-only symposium addressing passive smoking and health in Vienna, Austria, from April 9-12, 1984. 04211608-1610 (US 22131*).

¶3700. A September 17, 1981 Reynolds "SECRET" memorandum from Associate Scientific Director Frank Colby to in-house counsel Samuel Witt, with copies to Don Hoel and others, detailed the industry's plans to hold a conference/workshop on passive smoking. The conference would be planned by Hoel and Colby, and would be chaired by Professors Helmut Valentin (a former Special Account #4 recipient) and Ernst Wynder, another recipient of extensive industry funding, with the "thrust and intent" to convince German and American scientists "that there is no real controversy, and that the facts on the [passive smoking] problem are all on our side." 500534168-4169 (US 89428). 1005045370-5383 (US 85777) and 1005122262-2265 (US 20218).

¶3701. The Vienna Conference was funded by the German Verband, the German cigarette manufacturer association with representatives of Philip Morris, BATCo, and Reynolds. According to a December 1, 1983 internal memorandum from Philip Morris (FTR) scientist Walter Fink to Tom Osdene at Philip Morris recording the minutes of a November 1983 Verband meeting, "DM 150,000 were approved for the Meeting on Passive Smoking to be held in Vienna in April 1984." 2028524616-4618 at 4618 (US 89162).

¶3702. The primary conclusion of the conference was that there was no link between passive smoking and any disease. Dr. Hirayama was invited to attend the conference. The conference concluded that, "[w]ith the exception of Dr. Hirayama, all the participants agreed that so far there was no definite proof of a causal relationship between passive smoking and the risk of lung cancer." TI12871546-1582 (US 87370). Following the conference, Wynder and Valentin issued a press release stating: "Should lawmakers wish to take legislative measures with regard to passive smoking, they will, for the present, not be able to base their efforts on a demonstrated health hazard from passive smoking." The press release omitted any information about funding of the conference by Defendants or the Verband. 04211608-1610 (US 22131*); 2024967092-7093 (US 87372). The translated press release was circulated by Don Hoel to the Committee of Counsel for Defendants' use and information. 2024967085-7085 (US 89431).

1384

¶3703. Defendants publicized the conclusions of the Vienna Conference. A May 1984 Tobacco Institute publication, titled "Environmental Tobacco Smoke Workshops 1983 - 1984," claimed that the Vienna conference's conclusion that "a health hazard from ETS has not been demonstrated" was reached "forthrightly and independently." 500642763-2779 at 2765-2766 (US 85644). The conference was also cited at length by Defendants in the 1986 Tobacco Institute booklet, titled "Tobacco Smoke and the Nonsmoker: Scientific Integrity at Crossroads," in which the Tobacco Institute claimed that Hirayama "stood alone" in his finding that passive smoking was linked to lung cancer. 2025364951-5007 at 4957-4958, 4961 (US 22173).

¶3704. In 1986, the Vienna conference was turned into published proceedings (Medical Perspectives on Passive Smoking) containing a summary preface and the presentations made by the industry-selected scientists. While the conference was limited to a selected group of scientists, the preface stated that the conference proceedings "provide the interested reader with an overview of the present status of the scientific discussion of passive smoking." TI12871546-1582 (US 87370).

1385

¶3705. In 1987, the Tobacco Institute published a booklet, titled "Smoking Restrictions: The Hidden Threat to Public Health," in which it declared that ETS had not been shown to be a health hazard to nonsmokers and that more research was needed. The booklet quoted statements made by organizers of the 1983 Geneva and the 1984 Vienna conferences, with no disclosure that the conferences were funded and organized by the tobacco industry. TI05540699-0705 at 0702 (US 21246).

¶3706. Defendants made similar claims in other public statements and submissions made to the public and regulatory and legislative bodies. TINY0020573-0577 (US 88600); 300551794-1823 at 1799 (US 88608); 93766027-6051 at 6029 (US 85675*).

¶3707. Defendants not only omitted mentioning any connection to the tobacco industry in their use of the Vienna conference in public statements, but also affirmatively misrepresented that the conference was sponsored by or held "in cooperation with" the World Health Organization. See e.g., 500642763-2779 at 2767 (US 85644); 04211608-1610 at 1608 (US 22131*). The misrepresentation was stopped only after the WHO protested in writing that it "ha[d] not granted the workshop any kind of sponsorship or support." TI00681815-1818 (US 62083); TI00681800-1803 (US 88606).

¶3708. Don Hoel and John Rupp denied that the industry had sponsored the Vienna Conference to the industry's own ETS consultants Sorell Schwartz and Nancy Balter when they expressed concern about having relied on its conclusions as a "neutral source":

At some point later, Nancy and I were sitting in Rupp's office and she brought [the Vienna conference] up again, emphasizing the importance of the question, our having relied on the conference proceedings as a neutral source. Rupp picked up his phone, dialed Don Hoel, put him on speaker, and said to Hoel: I have Sorell and

1386

Nancy here with me and they want to know if the Vienna conference was surreptitiously sponsored by the tobacco industry. Hoel's response -- absolutely not. A year or two later, I attended a meeting in Europe on indoor air pollution. Mary Pottorff of Philip Morris was also there, and we were talking. I mentioned this Vienna story to her. She laughed and said to me, "You have got to be kidding, Don Hoel organized that symposium."

¶Schwartz WD, 19:29-38.

The 1987 Tokyo Conference

¶3709. In 1987, Japan Tobacco Inc. (JTI) sponsored a conference in Tokyo to counter the 6th World Conference on Smoking and Health, an annual event of the World Health Organization slated to be held in Japan in November 1987. The 1987 Tokyo Conference was planned and managed by Don Hoel and the Tobacco Institute ETS Advisory Group (ETSAG). Several ETSAG meeting agendas and summaries demonstrate Defendants' involvement in moving the Tokyo conference from a "project proposal" to a reality. 506330874-0879 (US 50834); 505491315-1320 (US 24227); TIBU30330-0331 (US 62566); 511252621-2626 (US 51554); 505491406-1410 at 1409 (US 75275).

¶3710. Defendants and JTI met several times in late 1986 and early 1987 to discuss the conference. 506330874-0879 (US 50834); 505491315-1320 (US 24227); 512252621-2626 (US 51554).

¶3711. A February 4, 1987 internal Philip Morris ETS "Action Items" update memorandum from Mary Pottorff to Bill Murray reported the following under the heading "PMI Action on ETS":

¶Tokyo University ETS Conference

Don Hoel has informed us that this PMI requested conference will take place two weeks prior to 6th World Conference, pending confirmation from JTI.

¶2501152342-2344 (US 20017).

1387

¶3712. Professor Hitoshi Kasuga chaired the conference. Kasuga was a Japanese scientist who was conducting research for JTI at the time the conference was planned. 508226799-6804 at 6801 (US 75279). Defendants supplied names of American industry ETS consultants who would attend. The consultants' fees, along with their travel, food, and lodging expenses, were paid by JTI and Defendants. TI0068-2069-2070 (US 62088).

¶3713. The ETS conference, titled "International Conference on Indoor Air Quality," was held in Tokyo on November 4-6, 1987. Many of Defendants' American and European ETS consultants were in attendance and many presented papers. These consultants included Theodor Sterling, Franz Adlkofer, Karl Ueberla, Linda Koo, Ragnar Rylander, Peter Lee, Roger Perry, Domingo Aviado, Sal DiNardi, Melvin First, James Kilpatrick, Michael Lebowitz, Nathan Mantel, Gray Robertson, Sorrell Schwartz, and Ernst Wynder. Neither the list of attendees nor the conference program disclosed that the conference was funded through JTI and planned by both JTI and Defendants. 321091730-1825 (US 22892 ).

¶3714. The Tokyo Conference proceedings were published in 1990 as a book titled Indoor Air Quality. Kasuga's preface emphasized the existing ETS "controversy," and stated that none of the preceding conferences and "symposia," including Rylander's Geneva and Vienna conferences, had "established a definite causal relationship between ETS and lung cancer." Papers written by ETS consultants Rylander, Lee, Perry, Adlkofer, Sterling, and others were published in Indoor Air Quality. The book published papers written by BATCo scientist Chris Proctor and Reynolds scientist Guy Oldaker, without any mention of their employers. Kasuga summarized the conference in an "Outline" section at the conclusion of the book, where he stated that any number of factors in the air may have adverse effects on health, and ETS is merely one among many that should be studied. TLT0990809-1076 at 0812-0813, 1073-1074 (US 87398).

1388

¶3715. None of the papers published in Indoor Air Quality, nor the book itself, disclosed that the conference was funded through JTI and planned by both JTI and Defendants. TLT0990809-1076 (US 87398).

¶3716. Defendants cited the Tokyo Conference and papers published in Indoor Air Quality as objective scientific authority in support of their position that passive smoking was not a proven health hazard to nonsmokers. TI11951245-1685 at 1374 (US 85699); 87654420-4485 at 4481, 4485 (US 87385); 2024706618-6698 at 6687 (US 87405).

¶3717. Ernst Wynder, founder of American Health Foundation ("AHF"), was one of the organizers of the 1984 Vienna conference and the primary speaker at the 1987 Tokyo conference. Wynder had a long history with Philip Morris that also was not publicly disclosed. This relationship began in approximately around 1969, at which time Wynder described himself as one of the "best friends the cigaret [sic] industry has." 1000321438-1438 (US 85666). Between 1976 and 1990, Philip Morris provided AHF with millions of dollars in research grants.34 2021630792-0794 at 0793 (US 92067); 2001202325-2325 (US 85724); 1003710362-0363 (US 85669); 2021636204-6204 (US 85671); 2021594926-4930 at 4929 (US 85672*).

1389

The 1989 McGill "Symposium"

¶3718. Defendants planned a symposium at McGill University in Montreal for November 1989.

¶3719. In an August 8, 1989 "Strictly Confidential" memorandum from Philip Morris International's Andrew Whist to Philip Morris Companies' Vice Chairman Bill Murray, with copies to Geoffrey Bible and others, Whist wrote:

This memorandum summarizes our earlier conversation concerning the ETS symposium at McGill University.

What we have been planning over the past several days is a major international symposium which would be both closed and private until the release, shortly after the symposium, of a monograph summarizing the proceedings. Our goal, of course, is to produce an impressive document that would have the potential of neutralizing two reports that are scheduled to be released near the end of this year -- an ETS risk assessment that is being prepared by EPA and a detailed assessment of ETS health effects under preparation, at Rockefeller University, supervised by Professor Spitzer (an avowed anti-smoker). The EPA and Spitzer reports would cause substantial damage unless they are somehow countered.

¶2023034633-4637 (US 22932).

¶3720. Long-time industry ETS consultant, Donald Ecobichon at McGill, hosted the symposium, which was held November 3-4, 1989. Philip Morris chose the attendees and also edited and transcribed the panel discussions for inclusion in the monograph which was to be published immediately following the symposium. Numerous Covington & Burling attorneys participated in the planning and organization of the symposium on behalf of the industry. Philip Morris, Reynolds, and the Tobacco Institute share the costs of the symposium evenly. 2023034633-4637 (US 22932).

1390

¶3721. A September 19, 1989 report of the industry "ETS Coordinating Committee," written by Reynolds attorney Mary Ward, recorded Rupp's McGill presentation to the committee. Rupp told the group that the published "monograph" (Ward refers to this as a "big, fat book") could be used by the companies to oppose the EPA's risk assessment. 515541696-1701 at 1700 (US 30103).

¶3722. A September 27, 1989 "Status Report" from Covington & Burling attorney John Rupp clearly states that the purpose of the McGill event was to neutralize two ETS reports that were expected to indict passive smoking as a cause of disease:

¶ETS Symposium at McGill University

On November 3 and 4, 1989, approximately 60 of our consultant scientists from the United States, Canada, Asia, and Western Europe will convene for a private symposium devoted to ETS and risk assessment. The purpose of the symposium is to produce an authoritative monograph that will serve to neutralize two reports that are scheduled to be released near the end of this year - an ETS risk assessment that is being prepared by the U.S. Environmental Protection Agency and a detailed assessment of ETS health effects that is being prepared in Canada under Professor Spitzer's supervision.

¶2500048508-8515 (US 20549).

¶3723. The symposium included 80 industry ETS consultants. 2500048976-8998 at 8984 (US 23007). Chris Collett, an employee of industry consultant Theodor Sterling and an attendee at the "symposium," wrote in an internal review of the conference that:

Other comments I overheard concerned the absence of criticism or disagreement between the attendees. The presentations and panel discussions were sessions of "preaching to the converted."

¶94348745-8752 at 8752 (US 85688).

1391

¶3724. Covington & Burling sent the Tobacco Institute an itemized statement of McGill symposium expenses under cover letter dated January 19, 1990. The expense statement includes a listing of many of the attendees, all industry ETS consultants, as well as industry-financed groups such as ARIA and HBI. The expenses and fees listed on this one statement for the production of the McGill symposium totaled over $800,000. TIDN 0021302-1305 (US 22731).

¶3725. In January 1990, the McGill proceedings were published by Lexington Books, along with a press release, and press kits for distribution by the Tobacco Institute with the assistance of public relations firms Ogilvy & Meyer and Burson Marsteller. 2023546229-6233 (JD 080524).

¶3726. The published McGill proceedings did not disclose the sponsorship by Defendants beyond citing a generic "tobacco industry grant." TLT0150001-0390 (US 65706). The sole reference to the tobacco industry was contained in the preface, which stated that the "symposium . . . was made possible by a tobacco industry grant and by grants and other support from the following co-sponsors." TLT0150001-0390 (US 65706). The preface listed 11 independent-appearing "co-sponsors." 2501474253-4259 (US 22017). Several of the "co-sponsors" were merely the institutions where a number of attending industry ETS consultants worked; others had preexisting links to Defendants. TIDN0019217-9268 at 9219, 9234 (US 85597) (Ecobichon/McGill University and Healthy Buildings International); 2501474253-4259 at 4255 (US 22017) (Institut Fresenius); 2500048643-8654 (US 22857) (Kim/Hanyang University); TIDN 0002692-2701 at 2695 (US 85605) and TIMN0435220-5272 at 5264 (US 21734) (National Energy Management Institute); 87697701-7772 (US 85587) (National Federation of Independent Business); 2023592986-2998 at 2993 (US 85548) (Allen/RCC Research and Consulting); 2023856321-6328 at 6322 (US 22037) (Weetman/Sunderland Polytechnic).

1392

¶3727. The McGill proceedings did not disclose that:

• The symposium chairs (Ecobichon and Wu) were industry ETS consultants TIDN0019217-9268 at 9219, 9234 (US 85597).
• The conference participants were all industry ETS consultants who had been selected by the industry and Covington & Burling. 2500048976-8998 at 8984 (US 23007).
• Several of the "co-sponsors" did not sponsor the event at all. Rather, the Covington & Burling list of expenses shows that McGill University, HBI and the Institute for International Health and Development were actually paid by Defendants. TIDN 0021302-1305 (US 22731).

¶3728. The Tobacco Institute sent out McGill symposium proceedings and materials to over 200 science and health writers. TI13341775-1775 (US 62415).

¶3729. Defendants cited the McGill symposium in press releases, legislative submissions, and letters to the editor in major newspapers, without disclosing their sponsorship of the symposium:

• Defendants coordinated nationwide "media activity" drawing attention to the McGill conference through the Tobacco Institute's Public Affairs Division, but using ETS consultant interviews arranged by industry public relations firm Ogilvy & Mather. TIOK0017415-7416 (US 85698).

• The October 1, 1990 "Comments of The Tobacco Institute on Health Effects of Passive Smoking: Assessment of Lung Cancer in Adults and Respiratory Disorders in Children" repeatedly cited the McGill symposium, characterizing the event only as an "international symposium on ETS" that generated "the consensus views of 80 eminent scientists." 87653565-6820 at 3941- 3998 (at 3958) (US 88596).
• In its March 20, 1992 "Comments" in response to the OSHA Request for Information, the Tobacco Institute cited the proceedings and several individual "papers" presented at McGill. TLT1022319-2405 at 2324-2328 (US 87404).

1393

• The February 5, 1990 Tobacco Institute comments to the EPA on the draft Risk Assessment attached the McGill proceedings and described the event simply as a "a thorough, up-to-date discussion of the relevant literature" which concluded that "ETS has not been shown to present a health hazard to nonsmokers." TI11951245-1685 at 1254 (US 85699).
• Philip Morris's September 28, 1990 "Comments" to the EPA on its draft Risk Assessment cited the McGill conference in a lengthy section summarizing industry-favorable conclusions of "scientific symposia." 2070140494-0630 at 0598 (US 88604).
• A June 25, 1990 Tobacco Institute press release titled "Draft Risk Assessment Described as Speculation" identified the McGill conference as a "prestigious panel of scientists at an international symposium on ETS held at McGill University in Montreal, Canada." 87697659-7664 (US 85586).
• Tobacco Institute consultant letters to the editor appeared in newspapers such as the Chicago Sun-Times, Detroit News, Las Vegas Sun, and Salt lake Tribune drawing attention to the McGill "conclusions." TI09911997-2033 (US 22367).
• Letters to the editor published in the Chicago Sun-Times, Las Vegas Sun and the Salt Lake Tribune under the name of industry consultant Jack Peterson, and in the Richmond-Times Dispatch on August 26, 1990, under the name of industry consultant David Weeks are typical examples in which the McGill symposium conclusions were communicated to the public with no industry attribution. Dawson WD, 134:13-135:13; TI12201464-1465 (US 86722); TIMN343061-3061 (US 85582); TIDN0019217-9268 at 9229 (US 85597).
• A Tobacco Institute press release dated June 10, 1992 titled "Majority Favors Smoking Sections in Most Public Places, Anti-smoking activists recycle old claims to add new pressure" relied on the McGill symposium findings. TIFL0523989-3992 (US 88456).

1394

• ETS consultants distributed the McGill proceedings to government officials in markets around the world. 300522762-2767 at 2766 (US 22223).

¶3730. Defendants organized at least four other similar ETS conferences: London in 1988, Brussels in 1989, Lisbon in 1990, and Athens in 1992. Robertson WD, 41:6-14 (1988 London Conference); 41:15-42:12 (1989 Brussels Conference); 87:5-10 (1992 Athens Conference); 2500048956-8969 at 8957 (US 27901) (1990 Lisbon Conference).

Defendants and Their Paid Consultants Controlled ETS Research Findings

¶3731. Several projects managed by Defendants as part of their worldwide ETS program illustrate the degree to which Defendants closely supervised and, when necessary, altered the research on the question of ETS and disease. Four of these ETS projects -- the 1995 Japanese Spousal Study, the 1989 Malmfors/SAS paper, the 1992 HBI 585 Building Study, and the 2003 Enstrom/Kabat paper -- are described in detail below.

The 1995 Japanese Spousal Study

¶3732. In April 1995, a paper titled "Marriage to a smoker may not be a valid marker of exposure in studies relating environmental tobacco smoke to risk of lung cancer in Japanese nonsmoking women" was published in the International Archives of Occupational and Environmental Health under the name of industry consultant Peter (P.N.) Lee. 900006054-6061 (US 57902*) This paper, internally referred to by Defendants as "The Japanese Spousal Study" was funded and directed by Defendants through the International ETS Management Committee (IEMC) in order to challenge the association between lung cancer and spousal smoking reported in the Hirayama study. Blackie WD, 54:17-19; 2023522351-2352B (US 75127). As explained, infra, the study was not only closely managed by Defendants, but reached a conclusion that "high misclassification rates in Japan . . . undermine conclusions from epidemiological studies conducted there," which was of very dubious validity.

1395

¶3733. On April 5, 1991, Covington & Burling's Chris Proctor proposed to Defendants a study of misclassification (i.e., misreporting of the smoking status of participants) among Japanese women married to men who smoked. Charles Green at Reynolds sent the proposal to Bob Pages and Tom Osdene at Philip Morris with the message: "We need to get our international folks involved in the funding." 2023544450-4455 (US 22817).

¶3734. Proctor's proposal for what later became the Japanese Spousal Study was presented to the CIAR Board of Directors for funding. The proposal called for a payment of $45,000 to Covington & Burling for Proctor's "supervision . . . of all phases of the study, including the preparation of a publishable report." 87802262-2263 (US 56329); 2023544450-4455 (US 22817).

¶3735. According to an April 15, 1991 Philip Morris e-mail from Bob Pages, a member of the CIAR Board of Directors, to Steve Parrish, Proctor's proposal called for two Japanese investigators to serve as co-authors, but that Proctor would be "a 'behind-the-scenes' study director." 2023544456-4456 (US 22816).

¶3736. Pages recommended the following to Parrish in his April 15, 1991 e-mail:

Three concerns: 1) This is NOT a project that should be funded by CIAR, although there MAY be (I'm not convinced yet) a reason to say it was sponsored by CIAR so as to "hide" industry involvement (as was done in Rupp's "Asia Project"). 2) Proctor (and his fee) may be necessary to help get this done -- at least he has the "hands on" experience with a similar study done in the UK -- but this should be a Japanese study: Proctor should not be a coauthor on any publication that comes out of it.

1396

¶2023544456-4456 (US 22816).

¶3737. While the project was still under consideration by CIAR, the discussion among Defendants was extended to include BATCo and the IEMC. BATCo's Sharon Boyse (Blackie) commented in a June 19, 1991 memorandum to other members of the IEMC (including representatives of Philip Morris, Reynolds, and Brown & Williamson in the United States) that:

In the meantime, were we only to support one project we would support the Japanese one for the following reasons:

Independence. Although I accept many of the points made in [Rothmans'] Barry Frost's memo, the fact is that with Hazleton [laboratories], the tobacco industry is directly paying for the research, whereas the Japanese study could be channeled through an 'independent' organization such as CIAR. No matter how good the science, independence is always preferable, and in fact BAT made the decision to discontinue part of its in-house research on ETS for this very reason.

¶507974107-4109 (US 24730*).

¶3738. Ultimately the project was not funded through CIAR. Instead, with law firm supervision, IEMC funded the project. Boyse wrote her boss at BATCo Ray Thorton in a June 17, 1991 memorandum titled "IEMC ETS Research Projects" that:

It was therefore decided by all companies to fund the project. The research will be carried out by two Japanese scientists who have been recruited by Covington and Burling as part of the Far East ETS project, and who are therefore in no way associated with the tobacco industry. The project will be monitored by Covington and Burling, with Chris having a direct involvement in assessing methodology and progress. Regular verbal progress reports will come from Chris.

Peter Lee will also be involved in advising on certain aspects of the project. However, neither Peter nor Chris will appear as co-authors.

¶300512244-2245 at 2245 (US 67752).

1397

¶3739. All members of the IEMC participated in the funding of the Japanese Spousal Study at an original cost of $200,000 as follows: Philip Morris ($36,000), Brown & Williamson ($36,000), Reynolds ($36,000), BATCo ($36,000), Rothmans ($36,000), and Imperial ($20,000). 300512244- 2245 at 2245 (US 67752).

¶3740. The Japanese Spousal Study was carried out, as planned, under Proctor's direction. Pages provided Parrish an update of the progress in an e-mail dated November 8, 1991, which noted that, although the samples for the study were obtained in Japan, analyses of the samples would be conducted at Reynolds's lab in Winston-Salem. Pages wrote:

¶Spoke with Chris Proctor to get an update.

Study seems to be moving along surprisingly quickly. . . . Frozen urine samples will eventually be sent to RJR for analysis. . . .

Proctor expects to return to Japan shortly to check on the distribution of subjects . . . . He would like to be back in Tokyo to begin drafting a report by mid-December.

¶2023544508-4508 (US 22913).

¶3741. The testing of the samples for the Japanese Spousal Study was carried out at the Reynolds's lab. Ogden TT, 3/17/05, 15982:8-22; see also 508217791-7793 (US 92094).

¶3742. The Japanese Spousal Study ran into problems when the Japanese investigators recruited by Proctor refused to cooperate. According to a May 18, 1993 Philip Morris summary of an IEMC meeting, Proctor related the following as part of his presentation to the group:

¶JAPANESE SPOUSAL STUDY IEMC

---

¶PAPERS

1398

1. Lee did the statistics.

2. The Japanese scientists have "drifted away" from Proctor; the paper will be published but will be much weaker than Peter Lee's previous draft.

3. Proctor has written a paper and has sent it to them for their review

4. Peter Lee could still publish his paper w/o Japanese

5. Neither draft recognizes no [sic] funding source nor that RJR did the analyses

6. Proctor -- some concern that the Japanese scientists will talk about the tob. Industry involvement.

7. One of the Jap. Scientists is "lost completely" (Nigawa sp?) but Yano is still close to Proctor

¶2501003237-3242 at 3239-3240 (US 22320).

¶3743. Yano, the remaining Japanese researcher recruited by Covington & Burling, backed out soon thereafter, forcing Defendants to look to Lee as the sole author of the study. 2023544546 (US 22925).

¶3744. Philip Morris IEMC representative Helmut Reif wrote in his June 24, 1993 "Monthly Activities" that the Japanese scientists had become "uncomfortable" with Lee's conclusions. 2028372583-2596 at 2595 (US 22926).

¶3745. A later Philip Morris report from Helmut Reif recorded that one of the Japanese consultants recruited to be an author voiced his belief that the findings were not supported by the data, that Lee had changed the data in a rewritten paper, and that he felt "threatened" by the tobacco industry. The following is an excerpt from Reif's November 29, 1994 "Monthly Activities" report:

¶(1) Japanese Spousal Study

1399

History: A[dlkofer] visited together with Wynder the Japanese author on behalf of the spousal study. (Authors refused to publish under their name, PNL [Peter N. Lee] rewrote it, editors of "Preventive Medicine" found it not matching their journal, Int.Arch.Occ.Med, Adlkofer took it over, however, had hesitations. Prof. Feinstein wanted answers to some detailed questions before publishing it).

Results: Author Yano reported that he was shown around to several ETS conferences by Proctor and afterwards, Proctor withdrew. Author [Yano] never thought he would have to publish this study and distanced himself from the paper by the following arguments:

(a) Misclassification was not 30% -- PNL calculated on the basis of active smokers, not on the basis of passive smokers -- but only 10%, and this was counterbalanced by a similar misclassification from the other side - nonsmokers wrongly claiming to be smokers.

¶(b) He feels threatened by the industry . . . 2028372914-2915 at 2915 (US 22324).

¶3746. After the Japanese scientists backed out of the project, the paper (now listing Lee as the sole author) remained unpublished through 1994. The British Medical Journal and the American Journal of Epidemiology rejected the paper for publication. Blackie WD, 62:21- 63:4; 2024210654- 0658 (US 22866).

¶3747. The American Journal of Epidemiology (AJE) rejected the paper on the basis of flaws that, in its view, could not be remedied. The editor-in-chief informed Lee in his May 17, 1994 letter:

Both reviewers found the overall response rate of 33% to be unacceptable, particularly since generalizations are made to population-based studies. Furthermore, the sampling approach is not adequately described and a "semi-random" approach may not be unbiased. Can the results obtained in the 1990s be extrapolated to the

1400

reported studies, particularly the cohort study of Hirayama in which the smoking information was collected decades earlier?

The reviewers also questioned the basis of the estimation of the misclassification bias and the criteria used to select the factors that you considered as potential confounding factors. Both reviewers identified a number of other limitations of the manuscript, including errors in the tables and possible miscalculations. Given the low response rate, revision would not address the principal concern of the two reviewers.

¶2024210654-0658 at 0654 (US 22866). The reviewer went on:

Even if the results of the current study are deemed valid and generalizable, the conclusions as summarized in the abstract are not supported by the data generated in the study. . . . Smokers married to non-smokers were significantly more likely to lie about their smoking status than were smokers married to smokers (64% versus 17%, P=0.002). Thus the bias implied by the actual data generated in this study is a negative bias, which does not support the statements in the abstract to the effect that results from passive smoking studies in Japan are invalid and that the increased risk reported is probably due to bias from smoking misclassification (i.e., smokers lying about their smoking status). Of course, the finding that smokers married to nonsmokers are more likely to lie is no more reliable than any other finding in this study given the low response rate.

¶2024210654-0658 at 0655 (US 22866).

¶3748. In fact, Lee himself stated in the abstract of this unpublished version that: "Major findings were that over 30% of smokers (judged by existence of the biomarker for nicotine, cotinine) denied smoking, a much higher rate than reported in Western studies; denial rates were higher for women married to non-smokers" rather than for women married to smokers. Accordingly, as noted by the AJE reviewer, Lee's data supported the conclusion that the reported risks in the Japanese epidemiological studies would be even higher but for the smoking misclassification. 20242106320652 at 0634 (US 22865). Such a conclusion would have been directly contrary to the conclusion sought by Defendants.

1401

¶3749. Lee sent the rejection letter and reviewers' comments under cover letter dated May 23, 1994, to Proctor (with copies to executives at Imperial Tobacco and Gallaher) with a recommendation that the paper be rewritten. 2024210653-0653 (US 22867).

¶3750. Lee clung to his conclusion that misclassification bias could explain the raised lung cancer risks reported in the Japanese epidemiological studies. Long-time industry consultant, Franz Adlkofer's International Archives of Occupational and Environmental Health published Lee's Japanese Spousal Study paper in April 1995. The paper concluded that high rates of misclassification "undermine conclusions from epidemiological studies conducted" in Japan. The final published version of Lee's Japanese Spousal Study paper did not disclose the fact that "denial rates were higher for women married to non-smokers." 9000006054-6061 at 5054 (US 57902*).

¶3751. Lee's paper acknowledged the "financial support from several companies of the tobacco industry." 9000006054-6061 (US 57902*).

¶3752. Defendants and their consultants cited Lee's conclusions from the Japanese Spousal Study in support of the industry position that there were no proven health effects associated with ETS, the epidemiology was flawed, and the question was still open. The original plan had been to generate a paper "to undermine Hirayama conclusions in time for the EPA [Risk Assessment]." 2023522351-2352B (US 75127). However, because the project was not completed and published until 1995, it was instead used to critique the 1994-1995 OSHA proposed rulemaking. At the request of the Tobacco Institute, Lee submitted comments dated July 1994 and November 1995 to OSHA. Lee asserted in his comments that he was "an Independent Consultant in Statistics and

1402

¶Epidemiology, providing advice to a wide range of clients, including the tobacco industry." He then cited the Japanese Spousal Study as support for his opinion that misclassification bias is a major flaw in Japanese epidemiological studies. TIBR0006738A-TIBR0006754 at 6750 (US 62553); TIBR0000567-0590 at 0568 (US 85817).

The 1989 Malmfors/SAS Airline Study

¶3753. In the late 1980s, the issue of airline smoking restrictions was gaining increased attention from public officials. In 1986, Congress requested a report by the NRC to the FAA concerning the smoking sections on airplanes. In that report, "The Airliner Cabin Environment: Air Quality and Safety," the NRC recommended "a ban on smoking on all domestic commercial flights, for four major reasons: to lessen irritation and discomfort to passengers and crew; to reduce potential health hazards to cabin crew associated with ETS; to eliminate the possibility of fire caused by cigarettes; and to bring the cabin air quality into line with established standards for other closed environments." (no bates) (JD 024863 at 6-7). This recommendation was followed by the passage of legislation in 1987 directing the Secretary of Transportation to restrict smoking on domestic flights with a scheduled flight time of two hours or less. 2501042537-2541 at 2537 (US 89402); see 29 U.S.C. App. § 1374(d).

¶3754. SAS airlines announced in late 1987 that it was planning to ban smoking on domestic Swedish flights as a test in the summer of 1988. Finnair had already decided to ban smoking on all domestic flights and permit only smoking breaks on international flights. 2501042537-2541 at 2537 (US 89402).

¶3755. In 1988, Philip Morris decided to carry out its own airline cabin testing for ETS, with the objective to "persuade the management of airlines to adopt policies which permit smokers to enjoy cigarettes during flight." Philip Morris's Mary Pottorff was assigned to be project leader, Rupp was tasked to select researchers to participate in the study. 2501042537-2541 at 2537, 2539 (US 89402).

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¶3756. In a July 5, 1988 memorandum to Philip Morris's Andrew Whist in New York, Pottorff wrote that SAS had agreed to permit the air cabin testing and that the project would be funded by Philip Morris, Reynolds, and the Swedish cigarette manufacturers association. Pottorff further advised that three industry consultants would participate in the study, and that the air samples would be tested at a Dutch laboratory called TNO. Torbjorn Malmfors Toxicologist, Karolinska Institute, Sweden, would then write the paper with the other two consultants. A September 2, 1988 letter from interim CIAR director Guy Oldaker to Chris Proctor stated that BATCo was funding the project with the other companies. 2501042534-2535 (US 90037); 508220128-0128 (92022).

¶3757. Philip Morris elected to finance the SAS study through CIAR:

The official funding of IFAQ [in flight air quality] research can be the Center for Indoor Air Research (CIAR) in Washington, D.C. There are two benefits from this vehicle, namely all contributions to fund the research can be processed by CIAR staff & CIAR can then be correctly named as a sponsor of the research -- which will diminish the effectiveness of the antis PR efforts to challenge the credibility of the research.

¶2501458517-8519 at 8518 (US 25615).

¶3758. John Rupp recruited Malmfors as an ETS consultant for Philip Morris. Rupp advised that Malmfors "does not believe that any adverse health effects [of ETS] have been shown" and was ready to take the "next step in the process" and meet with the tobacco industry directly. 2023543320-43321 (US 90036); 2023034933-4946 at 4939 (US 87334).

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¶3759. The Dutch laboratory TNO took air samples aboard a number of SAS aircraft during the month of September 1988. TNO analyzed the samples for ETS components and prepared a "Confidential" report of its results to CIAR dated December 16, 1988. This report included an "Analysis of the Results" section (pages 20-42) where the authors concluded that the particulate and carbon dioxide levels on the SAS aircraft were not only high, but exceeded WHO and hygienic standards on many of the flights. The authors also found that there was little difference in ETS and air quality between the smoking sections and one of the nonsmoking sections. 89816305-6347 at 6343-6346 (US 90043).

¶3760. Gaisch recorded in his October 1988 monthly report that he had seen the TNO data, and noted that the high carbon monoxide levels were "an indication that the air in the aircraft cabin does by no means meet the ASHRAE standards (US norm for quality of indoor air)" and that the separation of smokers and nonsmokers was "nearly immaterial" to the air quality. 2501152077-2091 at 2088-2089 (US 25597).

¶3761. On January 3-4, 1989, Philip Morris, R.J. Reynolds , and Lorillard met with the three Swedish consultants and Max Eisenberg at Covington & Burling. The group agreed that "the RSP data was unexpectedly high" and that the testing pads should be reanalyzed at a laboratory in the United States, even though the pads were three months old. 2501255448-5448 (US 90046).

¶3762. The group "was not too comfortable with the way Malmfors had presented the data" and asked Rupp to talk to Malmfors about a "better approach." On January 4, "Rupp reported that Malmfors was agreeable to such an approach." 2501255448-5448 (US 90046).

¶3763. In his handwritten notes of the January 3, 1989 meeting at Covington & Burling, Tom Osdene wrote that the report's "explanations" were "inappropriate," and that the solution was to

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¶"remove the discussion" section. 2023528894-8895 at 8895 (US 90035). In his notes of the January 4 meeting, Osdene wrote that the TNO report would be "discarded" and a "revised final version" would be prepared. 2023528896-8899 at 8898 (US 92036).

¶3764. Helmut Gaisch's report of the meetings recorded the following:

[I]t was decided by a majority that (1) the exposed filter pads should be sent to Dr. Max Eisenberg, CIAR, who will find a US-based laboratory to carry out the UV-PM analysis, (2) All chapters of the narrative part of [the] TNO [report], going beyond mere description of the experimental part, should be eliminated.

¶2501152038-2052 at 2044-2045 (US 90044).

¶3765. TNO prepared a second report for CIAR dated January 23, 1989. This revised report entirely eliminated the 22-page "Analysis of the Results" section from the earlier report. 506848666- 8687 (US 90047).

¶3766. Malmfors sent his second draft to Rupp, U.S. industry consultants, and CIAR by February 3 for review. 87823747-3750 at 3749 (US 85695).

¶3767. Defendants were apparently still not satisfied with Malmfors' paper. Philip Morris's Helmut Reif summarized a meeting between Malmfors and industry representatives (including Pottorff, Proctor, Green, Reif, and Covington & Burling attorney Charles Lister) in Stockholm on March 21, 1989, where Malmfors presented his revised findings. Industry representatives apparently tried to pressure Malmfors to change his results even further, at which point the following occurred:

As the discussion got too tight, Malmfors said that he would not change his opinion, but there were other experts who could do his job.

¶2028364552-4554 at 4552 (US 90036).

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¶3768. The SAS study was finally published, titled "Air Quality in Passenger Cabins of DC-9 and MD-80 Aircraft," in industry consultant Roger Perry's journal Environmental Technology Letters. The published version concluded that : "The total exposure to cabin air ETS among the passengers is rather small and insignificant in comparison to total life exposure to air pollution," and that an effective ventilation system could maintain air quality in airline cabins. 87630985-1000 at 0998 (US 23522).

¶3769. Despite the fact that Malmfors and his listed co-authors were consultants to Philip Morris, the published paper stated: "The authors have served as consultants to CIAR." 2023528820- 8893 at 8821, 8863, 8868 (US 92028); 87630985-1000 at 0999 (US 23522).

¶3770. The Malmfors/SAS project was funded through CIAR at a cost of $638,806. 2505442777-2960 at 2861 (US 25643*). While the published paper did acknowledge the funding from CIAR, there was no mention of the source of CIAR funds, or the involvement of tobacco industry scientists and lawyers in the planning, management, and execution of the study, as well as the writing of the published paper. 87630985-1000 (US 23522).

¶3771. The Malmfors/SAS paper was cited by Defendants in submissions to regulatory agencies, including the Federal Aviation Agency, in support of its position that no regulation of smoking in aircraft was required beyond separation of smokers and nonsmokers. 2024191369-1381 at 1375-1376 (US 89401); 2023216588-6626 at 6594 (US 87407).

¶3772. Industry consultants HBI and Gary Huber cited the Malmfors study to the EPA in their comments opposing to the ETS Risk Assessment. 87653565-6820 at 4753-4763 at 4762, 5519- 5548 at 5323 (US 88596).

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The 1992 HBI 585 Building Study

¶3773. In 1989, CIAR funded a project by industry consultant "Gray" Robertson and HBI (see supra Section V(G)(6)(a)((6))((h))) to assess indoor air quality and ETS in offices. The project cost $138,387 and resulted in the 1992 published paper "The Measurement of Environmental Tobacco Smoke in 585 Office Environments" (the "585 Building Study"). The paper concluded that ETS components in "typical office workspaces" were lower than had been previously reported. 2505528777-8786 at 8786 (US 20572); 2505442777-2960 at 2895 (US 25643*).

¶3774. In conducting the study, HBI falsified and manipulated the data. HBI field technician Gregory Wulchin testified at trial that he conducted a number of the ETS inspections underlying HBI's published 585 building study. Wulchin WD, 6:13-7:1. Wulchin examined eight of his ETS field reports that were included in the data underlying the published paper and found that false data entries had been made. Wulchin WD, 7:2-13:12; TLT0600139-0217 (US 65101). Wulchin testified that at least one of his data sheets had been altered by Robertson. Wulchin WD, 3:21-5:16; TLT0600139-0217 at 0154 (US 65101); Wulchin TT, 11/3/04, 4855:5-4859:10. Wulchin identified similar errors transposing several other data recordings that had been made by other HBI technicians. Wulchin WD, 13:13-16:14. In addition, Wulchin testified that the readings in two of his field reports demonstrated unacceptably high levels of particulate from cigarette smoking in rooms where there was good ventilation. Wulchin WD, 16:19-17:8. As a result of these irregularities and others, Wulchin testified, "My experience with HBI data as well as [my] review of HBI reports, leads me to conclude that HBI's data contained unexplained entries that raise serious questions about the integrity of its studies." Wulchin WD, 17:9-14. The Court credits his testimony for the following reasons: Wulchin was a former employee who harbored no animus against HBI; he had nothing to gain from testimony that was adverse to HBI; his testimony was specific and internally consistent; under cross-examination, he was neither evasive nor hostile.

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¶3775. After the 585 Building Study was published, the results and data were the subject of a 1994 Congressional examination. Robertson WD, 89:4-8; 2047330959-0981 (US 38593). The Subcommittee on Health and the Environment obtained HBI's then-existing ETS data forms and compared them to the data that was submitted in an interim report to CIAR. Robertson WD, 90:10; TLT0600053-0084 (US 65097) (interim submission to CIAR). Discrepancies were identified that would have affected the levels of ETS reported by HBI's study. Wulchin confirmed that HBI's data collection forms were often changed to minimize measurements of ETS.

It is my belief that there were other instances in which HBI reduced field measurements of high levels of particulates in rooms where smoking occurred. . . .

I conducted a number of tests summarized in the CIAR report. My review of the report indicates that HBI mischaracterized and made numerous alternations in the data I collected.

¶Wulchin WD, 3:11-20, 5:2-13; TLT0600139-0217 at 0140 (US 65101).

¶3776. Some of the criticisms made by HBI employees and tobacco industry scientists about HBI methodology were also made by James Repace, EPA, and Alfred Lowery, Naval Research Laboratory, widely published authors on ETS and indoor air quality, in a 1992 letter to the editor shortly after the 585 Building Study was published. For example, from the data provided in the paper, Repace and Lowery were able to determine that HBI took measurements of smoking areas within larger rooms, and HBI did not report the volume of any rooms in which readings were taken. 2505583630-3641 (US 85640).

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¶3777. In addition, Repace and Lowery criticized the lack of science underlying the study: air exchange rates were not reported; the number of buildings was not reported; the locale of the buildings was not reported; the types of buildings were not reported; the ages of the buildings were not reported; the types of air handling systems were not reported; the time of year recordings were made was not reported; the proximity of the detector to smokers was not reported; and there was no discussion of or comparison with earlier findings, as would normally be the case in scientific studies. 2505583630-3641 (US 85640); see also VXA1601456-01742 at 1651-1652 (US 64059) (1984 Surgeon General's Report, stating number of cigarettes burned, the size of the room, the effective ventilation rate, and smoke residence time are all important variables in determining levels of secondhand smoke exposure); VXA2110670-1053 at 0823-0826 (US 63709) (1986 SGR).

¶3778. Defendants themselves recognized the flaws in Robertson's scientific methodology. In April 1991, even before the allegations of scientific fraud publicly surfaced the following year (2070332077-2104 (US 85627)), CIAR Board members Spears (Lorillard), Green (Reynolds), and Pages (Philip Morris), discussed a proposal by HBI to gather additional data related to ETS and indoor air quality. CIAR rejected funding the proposal because it lacked scientific merit. 87776361- 6362 (US 56325); 87776358-6359 (US 56324).

¶3779. Despite the evidence of scientific fraud, in March 1992 the Tobacco Institute cited the 585 Building Study as scientific authority in its comments opposing adoption of OSHA's IAQ Rule. TI02120021-0098 at 0035 n. 32 (US 65685*); see also (no bates at 91) (JD 023792), (Reynolds' 1992 OSHA submission). As recently as 2000, the HBI paper was cited by industry consultant Roger Jenkins in a journal article. (no bates at 49) (JD 065013); BR2000545-0785 at 0658 and 0670 (JD 065024).

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¶3780. The published paper on the 585 Building Study acknowledged, "Funding for this work was made available in part by the Center for Indoor Air Research, Linthicum, Maryland." (US 20572). As detailed above (see supra Section V(G)(6)(a)((6))((h))), this statement does not provide the reader an accurate picture of Robertson/HBI's long-standing, lucrative financial relationship with the tobacco industry.

The 2003 Enstrom/Kabat Study

¶3781. James Enstrom's May 2003 article, "Environmental tobacco smoke and tobacco related mortality in a prospective study of Californians, 1960-1998," concluded that the association between ETS exposure and lung cancer and CHD "may be considerably weaker than generally believed." This study was CIAR-funded and managed and was published in the British Medical Journal. (no bates) (JD 024496).

¶3782. A June 25, 1996 Philip Morris e-mail from Marc Firestone to Richard Carchman stated that Enstrom did work for Philip Morris and Reynolds "in the context of the EPA litigation," and that one of his new proposals was "clearly litigation oriented" and should be "pursued, if at all, in the context of attorney work product." 2063610699-0699 (US 27128).

¶3783. Enstrom then sent his first proposal to perform statistical analyses on data from CPS I to CIAR on July 15, 1996, stating:

For the past three years I have done consulting and research for Jeffrey L. Furr of Womble Carlyle on behalf of R.J. Reynolds and Philip Morris. This research has found a number of results that raise serious questions about several published findings on the relationship of passive smoking to lung cancer and other diseases.

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¶2063610840-0841 at 0840 (US 85796). Enstrom also stated in his July 15, 1996 letter to Eisenberg that his proposed CIAR research would "continue and expand upon" the research done for Womble Carlyle. 2063610840-0841 at 0840 (US 85796).

¶3784. At a November 1996 meeting, the CIAR Board of Directors discussed the Enstrom proposal and noted that Philip Morris lead scientist Richard Carchman and Reynolds lead scientist Charles Green (two members of the CIAR Board) had already visited Enstrom at UCLA to discuss the proposal with him personally. 2063650515-0518 at 0515 (US 79212).

¶3785. Enstrom wrote a January 15, 1997 letter following up on his proposal but directly to Carchman at Philip Morris, rather than to CIAR or its SAB:

A level of trust must be developed based on my past research on passive smoking and epidemiology in general in order to work out the best way for me to conduct this research. A substantial research commitment on your part is necessary in order for me to effectively compete against the large mountain of epidemiologic data and opinions that already exist regarding the health effects of ETS and active smoking.

¶2063654073-4073 (US 85811).

¶3786. According to the minutes of the May 15, 1997 CIAR Board of Directors meeting, CIAR found a co-author collaborator for Enstrom, Geoffrey Kabat. 517578187-8188 (US 85816).

¶3787. By letter from Carchman dated April 25, 1997, Philip Morris agreed to fund a precursor study by Enstrom for $150,000. 2063610867-0867 (US 85787). That same year, Enstrom received funding from CTR, via a letter that proposed paying him an additional $25,000 in addition to an ongoing CTR grant already in place. 40001769-1769 (US 85804*).

¶3788. Enstrom's second proposal to CIAR, dated October 20, 1997, resulted in funding of at least $525,000 from Defendants, a 1998 contract with CIAR as an Applied Project. 5669435493579 at 3550 (US 85813); 2505442777-2960 at 2815 (US 25643*); 83205526-5581 at 5538 (US 92033); Eisenberg TT, 11/9/04, 5630:22-5631:8; 2505442777-2960 (US 25643*); 83205526-5581 at 5538 (US 92033); Eisenberg TT, 1/9/04, 5630:22-5631:8; 2505442777-2960 (US 25643*).

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¶3789. As originally planned, the researchers conducted a study using California CPS I data to ascertain rates of reported cases of coronary heart disease, lung cancer, and chronic obstructive pulmonary disease for study participants identified as "never smokers married to smokers." The study yielded the following results: never smokers married to smokers had a relative risk of 0.94 for developing coronary heart disease and 0.75 for developing lung cancer. Thus, according to the study, the relative risk of developing coronary heart disease and lung cancer decreased for never smokers married to smokers. Based on these results, the researchers concluded that there is no significant association between passive smoking and tobacco-related diseases in never smokers married to smokers. TKT0500029-0038 (US 65086).

¶3790. When the Enstrom/Kabat paper was published in the May 2003 issue of the British Medical Journal, it was roundly criticized in the scientific community. Members of the 2002 working group on involuntary smoking and cancer for the International Agency for Research on Cancer (IARC) made the following statement:

Enstrom and Kabat's conclusions are not supported by the weak evidence they offer, and although the accompanying editorial alluded to "debate" and "controversy", we judge the issue to be resolved scientifically, even though the "debate" is cynically continued by the tobacco industry.

¶(no bates) (JD 024496). The American Cancer Society had repeatedly warned Enstrom that using its CPS-I data in the manner he was using it would lead to unreliable results. Enstrom used only a small subset of the overall data, and, more importantly, the data corresponded to participants who enrolled in 1959, a time when exposure to tobacco smoke was common. TLT0961621-1623 (US 86735); (no bates at 502-503) (JD 024502).

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¶3791. Defendants nevertheless promoted the study. For example, in October 2003, BATCo cited the report on its website in support of its position that "the claim that ETS exposure has been shown to be a cause of chronic disease is not supported by the science." BATCo stated that a "very large study published in the British Medical Journal in May 2003 on environmental tobacco smoke in the home has found no increases in risk for the key smoking related diseases." The website provided a hyperlink to BAT's summary of the study:

In our view, this is an important study which confirms that many of the estimates of the risks of public smoking are overstated in the extreme, and that considerable doubts remain as to whether ETS exposure is associated with any risk of chronic diseases such as lung cancer and heart disease. We believe the study illustrates that calls for bans on public smoking cannot be justified on the basis of the suggestion of chronic health risk for non-smokers, although of course we believe that the needs of non-smokers should be also catered for with solutions such as good ventilation.

¶ARG0412302-2303 (US 86747); TLT1020487-0488 (US 88461).

¶3792. In the present litigation, Defendants' statistician Edwin Bradley relied on the Enstrom paper as evidence that bias and confounding explain the elevated observed risks in epidemiological studies finding an association between spousal smoking and lung cancer. Bradley WD, 100:36- 101:21.

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