Reports that Matter

United States v. Philip Morris USA Inc.: Amended Final Opinion

Lawyers' Special Accounts

Section 24 of 129

Lawyers' Special Accounts

  1. In addition to CTR Special Projects, Philip Morris, Reynolds, Lorillard, Liggett, B&W, and American funded still another category of special research projects on behalf of the Enterprise, often referred to as Lawyers' Special Accounts. These accounts were directed by industry lawyers, including the Ad Hoc Committee. Stevens WD, 16:17-17:19, 18:19-19:4; 2045752106-2110 at 2107 (US 20467); 1003718428-8432 at 8429 (US 35902).

  2. Defendants would often fund the same scientist through both CTR Special Projects and Lawyers' Special Accounts. For example, on September 26, 1977, Edwin Jacob sent a letter to Shinn, which enclosed a proposal from L.G.S. Rao. Jacob noted that

it now appears that this research is not appropriate for consideration as a CTR Special Project. Nevertheless, the work is of obvious value. . . . Dr. Rao should be a most effective proponent of some of his views and, under appropriate circumstances, might well be able to provide useful information to a Congressional Committee or other body inquiring into certain aspects of smoking and health. . . . For these, reasons, I would recommend that we fund Dr. Rao as a special project through Special Account No. 4.

503673274-3275 (US 29716).

  1. On September 4, 1986, Patrick Sirridge of Shook, Hardy & Bacon sent a letter to General Counsel Alexander Holtzman of Philip Morris, Wayne Juchatz of Reynolds, Josiah Murray of Liggett, Ernest Pepples of B&W, Paul Randour of Reynolds, and Arthur Stevens of Lorillard, recommending that Richard Hickey receive continued funding:
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Because Dr. Hickey no longer has an official university position, we believe it is an appropriate time for his CTR Special Project support to end. However . . . Dr. Hickey [should be paid] for one year, $12,000. The consultancy would be paid from Shook Hardy & Bacon Special Account.

507875961-5962 at 5961 (US 20796).

  1. Another example is the multiple source funding for Dr. Hans Eysenck's work on the relationship between lung cancer and the patient's "emotional makeup." Eysenck received CTR Special Project funding after initially applying -- and being turned down -- for a CTR SAB grant in 1969. Eysenck continued to receive CTR Special Project funding for a number of projects through 1986. Eysenck also received CTR SAB grant funding from 1973 through 1976. And Jacob also recommended to Thomas Ahrensfeld of Philip Morris, Max Crohn of Reynolds, Joseph Greer of Liggett, Arnold Henson of American, Ernest Pepples of B&W, and Arthur Stevens of Lorillard that Eysenck receive funding through Special Account No. 4 in 1978 and 1979. CTRSP-FILES008806- 8806 (US 21168); CTRSP-FILES008804-8804 (US 21167); CTRSP-FILES 08799-8799 (US 21165); HK1698002-8002 (US 21473); 507731385-1385 (US 20784); 03747024-7205 (US 21538); 507731387-1388 (US 29868).

  2. Lawyers' Special Accounts were primarily handled through Special Account No. 3, Special Account No. 4, Special Account No. 5, and separate institutional grants, discussed below.

a. Special Account No. 3 285. Special Account No. 3 was not used to fund research, but to coordinate smoking and

health databases for use by the members of the Enterprise, especially litigating counsel. Contributors to Special Account No. 3 included: American, B&W, Liggett, Lorillard, Philip Morris, and Reynolds. 682150942-0942 (US 86491); Stevens WD, 20:3-7.

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b. Special Account No. 4 286. From 1969 through at least 1989, American, Philip Morris, Reynolds, B&W, Liggett,

and Lorillard contributed to Special Account No. 4, which was used on behalf of the Enterprise for lawyers' special project funding, consultancy fees, and witness expenses. Stevens WD, 16:17-17:19, 18:9-19:4; 80680301-0303 (US 21066); 80680283-0285 (US 21065); 2015028333-8336 (US 20314); 1005122219-2222 (US 20214); 1005122237-2240 (US 20215); 1005122246-2249 (US 20216); 1005122257-2260 (US 20217); 1005122262-2265 (US 20218); 1005122267-2271 (US 20219); 03638929-8931 (US 20059); 2015042056-2059 (US 21862); 2015042069-2072 (US 22949); 507875857-5859 (US 20795); 507876993-6994 (US 20799); 507875832-5834 (US 20794); 507876986-6987 (US 20798); 507875698-5700 (US 22953); ATX140000938-0939 (US 21122).

  1. A May 18, 1971 document prepared by Arthur Stevens of Lorillard noted the nature of "Special Account No. 4, which is used for Congressional and regulatory matters." 80680229- 0229 (US 31967).

  2. A September 19, 1973 document prepared by DeBaun Bryant of B&W stated that Special Account No. 4

is used to maintain expenses incurred for certain research work such as that done by Arthur D. Little on multivariate analysis; work performed by witnesses in preparation for Congressional or federal agencies hearings. The following companies contribute equal amounts to this account: American Brands, B&W, Liggett & Myers, P. Lorillard, Philip Morris, Reynolds.

682150942-0942 (US 86491).

  1. A December 9, 1977 document prepared by Max Crohn, Assistant General Counsel for Reynolds, further described Special Account No. 4: "Special Account No. 4 has been used to pay expenses and fees connected with expert consultancies and statement preparation." 03638986-8987
169
  1. A document titled "Special Account No. 4 -- funding of Crohn Subcommittee

Expenses and General Review" indicated that during a "General Counsel meeting" on January 4,

1978, it was agreed that "Special Account No. 4 could be used for paying fees and expenses of expert witnesses willing to prepare statements or consult." 03658901-8901 (US 20061).

  1. A January 27, 1978 memorandum to the file prepared by Arthur Stevens of Lorillard noted that:

At a Committee of Counsel meeting on January 4, 1978 the future handling of Special Account No. 4 was discussed. Each project to be funded out of Special Account No. 4 will be the subject of specific prior approval by the Committee of Counsel. However, blanket approval was given by the Committee of Counsel for expenditures out of the account not to exceed $10,000 per year, without the need for prior approval. L&M noted that it will participate in the funding of Special Account No. 4 during 1978 only to the extent that it did in 1977 (approximately $40-$45,000?).

85675219-5219 (US 32009).

  1. A February 9, 1978 memorandum from William Shinn of Shook, Hardy & Bacon to

Thomas Ahrensfeld, General Counsel for Philip Morris; Max Crohn, Assistant General Counsel for

Reynolds; Joseph Greer, Vice President and General Counsel for Liggett; Arnold Henson, General

Counsel for American; Ernest Pepples, Vice President and General Counsel for B&W; and Arthur

Stevens, General Counsel for Lorillard, stated in part:

Some of you have asked for additional information concerning funding through Special Account No. 4. This account is administered by Jacob & Medinger and Ed Jacob and I have reviewed the enclosed report. I also enclose a memorandum with regard to funding of projects and would appreciate your advice if you find this to be

170

incorrect in any way. There is probably no need for you to retain those notes once you have satisfied yourself of the current situation.

503655086-5088 at 5086 (US 20720); 503655086-5088 (US 75190).

  1. Another 1978 document described the present and future commitments of Special Account No. 4 funds and the procedure for the approval of emergency matters. The list of industry witnesses included: Aviado, Brown, Eysenck, Spielberger, Hine, Ridgon, Seltzer, Rao, Booker, E. Fisher, Valentin, Heimstra, Dunlap, Farris, F. Fisher, Hickey, Moser, Okun, Sterling, Weil, Jones, Bick, Soloff, Kuper, Harvard Medical School (Huber), Stanford Research Institute, Franklin Institute, and the Industry Research Liaison Committee. LG2024193-4196 at 4195 (US 21212); 89694310-4312 (US 32089); 89694319-4325 (US 32091); 89694313-4318 (US 32090).

  2. In the 1980s, Defendants Philip Morris, Reynolds, B&W, American, Lorillard, and Liggett, through the law firm of Shook, Hardy & Bacon, contracted with Battelle Laboratories of Columbus, Ohio to conduct studies on tobacco smoke and nicotine in the environment. Special Account No. 4 was used to fund the project. 01348599-8599 (US 87689); 01348503-8503 (US 86316); 01348490-8490 (US 86317); 01348473-8473 (US 86318); 01348483-8488 (US 86319); 01348489-8489 (US 86320); 01348465-8465 (US 86321); 01348315-8315 (US 26580); 502667789- 7790 (US 29584); 503673514-3515 (US 29720); 521028996-8997 (US 30443); 01348441-8441 (US 34535); 01348727-8727 (US 86322); 521028981-8982 (US 30442); 503673416-3417 (US 29719); 2010045875-5876 (US 36519); 01346204-6205 (US 34532); 01346206-6208 (US 34533).

  3. A February 22, 1980 letter from Arthur Stevens, Senior Vice President-General Counsel of Lorillard, to Timothy Finnegan of Jacob & Medinger and copied to Thomas F. Ahrensfeld, Alexander Holtzman, Max H. Crohn, Joseph H. Greer, Arnold Henson, Ernest Pepples,

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William W. Shinn, Ed Jacob, and Janet C. Brown acknowledged exactly why Special Account No. 4 was used to fund scientists. Stevens stated:

I am mindful of the continuing mandate with which your office, Shook, Hardy and others have been charged by your respective clients on behalf of the Industry: that is, to find witnesses and researchers -- and, if necessary in order to determine the feasibility of developing a relationship with them, engage them as consultants, or as researchers on initially modest projects. . . . [T]his [is an] important aspect of the Industry's work, that is, to attempt to posture ourselves to defend product liability litigation and related attacks on our products.

BWX0004097-4099 (US 36218); 85676690-6692 (US 32012); 1005146510-6512 (US 36118); 01110668-0670 (US 87679); 01335053-5055 (US 26480); 85676690-6692 (US 32012).

  1. As with CTR Special Projects, progress and status reports of Lawyers' Special Accounts projects were sent to Committee of Counsel members. For example, on March 27, 1980, Edwin Jacob sent a letter to Thomas Ahrensfeld, Max Crohn, Joseph Greer, Arnold Henson, Ernest Pepples, and Art Stevens, enclosing research papers "in part supported by the consultation research funds you have provided to Professor Eysenck through Special Account #4." 521029758-9788 (US 30452).

  2. On March 28, 1980, Jacob sent a letter to Thomas Ahrensfeld, Max Crohn, Joseph Greer, Arnold Henson, Ernest Pepples, and Art Stevens enclosing a progress report from Professor Spielberger, a recipient of Special Account No. 4 funding. 521032463-2496 (US 30476); 500515939-5939 (US 29465); 502822004-2004 (US 29586); 01355540-5540 (US 26583); BWX0002848-2848 (US 36175).

  3. On September 10, 1981, a report was prepared on "Meeting of Company Counsel and Ad Hoc Committee Members" which discussed special projects and the Literature Retrieval

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Division. In it, the following comments were attributed to Edwin Jacob: "These 'special projects' are litigation and hearing oriented," and:

Difference between C.T.R. and Special Four (lawyers' projects). Director of C.T.R. reviews special projects -- if project was problem for C.T.R., use Special Four. Also, if there are work product claims, need the lawyers' protection . . . done through Special Four because of possibility that C.T.R. would be subpoenaed.

The comment, "Concerned that science has become diluted and secondary to lawyers' advocacy interests," was attributed to Stevens of Lorillard. Thomas Bezanson of Chadbourne & Parke also prepared a memorandum regarding the September 10, 1981 meeting. 2023918181-8185 at 8181(US 20397); 2045752086-2093 (US 20466); ATX9275490271-0280 (US 36231).

  1. A January 10, 1983 chart demonstrates that Defendants jointly funded through Special Account No. 4 both consultancies (listed were Domingo Aviado, Theodore Blau, Walter Booker, Marc Micossi, Ragner Rylander, Carl Seltzer, and Murray Senkus of Reynolds) and research projects (listed were Battelle Columbus Laboratories, Melvin First, Arthur Furst, Nancy Mello and Jack Mendelson, L.G.S. Rao, and Charles Spielberger). This chart was sent on January 11, 1983, by Patrick Sirridge of Shook, Hardy & Bacon to Joseph Greer, General Counsel for Liggett; Arnold Henson, General Counsel for American; Alexander Holtzman, General Counsel for Philip Morris; Ernest Pepples, General Counsel for B&W; Arthur Stevens, General Counsel for Lorillard; and Samuel Witt, General Counsel for Reynolds. LG2002618-2626 (US 21200); LG2002617-2617 (US 21199); 1005061636-1636 (US 35962); 1005061637-1645 (US 35963).

  2. Special Account No. 4 was first administered by Jacob & Medinger and then by Shook, Hardy & Bacon starting in 1986. Attorneys from both firms would periodically request contributions from Philip Morris, Reynolds, American, B&W, Lorillard, and Liggett. The companies were also sent accountant's reports regarding the activity in the account. 507877173- 7174 (US 20800); 507877176-7176 (US 29925); 680302487-2487 (US 30885); 86002376-2377 (US 32044).

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  1. In 1986, Shook, Hardy & Bacon reminded Committee of Counsel members that "[y]ou will recall that Special Fund 4 also is used to cover certain witness development expenses incurred by national litigation counsel." 507877173-7174 at 7173 (US 20800).

  2. General Counsel from Philip Morris, Reynolds, Lorillard, Liggett, B&W, and American and lawyers from Jacob, Medinger & Finnegan and Shook, Hardy & Bacon made recommendations with respect to the funding of Special Account No. 4 projects. For example, on February 9, 1978, William Shinn of Shook, Hardy & Bacon sent a letter to Thomas Ahrensfeld, General Counsel of Philip Morris; Max Crohn, General Counsel of Reynolds; Joseph Greer, General Counsel of Liggett; Arnold Henson, General Counsel of American; Ernest Pepples, General Counsel of B&W; and Arthur Stevens, General Counsel of Lorillard, recommending the approval of funding for Hans Eysenck through Special Account No. 4. 03638976-8979 (US 46483).

  3. On February 12, 1982, Pepples sent a letter to Patrick Sirridge of Shook, Hardy & Bacon, recommending the renewal of an annual grant to Arthur Furst be paid from Special Account No. 4. 521029995-0008 (US 20887).

  4. Such industry attorney recommendations lasted from at least the 1980s through the early 1990s. 01335056-5057 (US 26481); 01347171-7172 (US 26579); 01346134-6135 (US 26577); 1005125796-5796 (US 36096); 1005125153-5154 (US 36085); 1005047922-7923 (US 35938);

80411597-1598 (US 31961); 86002656-2656 (US 56082); 86002593-2594 (US 56081).

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  1. Documents reflect that, at a minimum, the following individuals and organizations received funding through Special Account No. 4 beginning in the 1960s and ending in the 1990s: Able-Lands, Inc.; Lauren Ackerman; ACVA Atlantic Inc.; George Albee; Aleph Foundation; Arthur D. Little, Inc.; Aspen Conference; Atmospheric Health Sciences; Domingo Aviado; James Ballenger; Alvan L. Barach; Walter Barker; Broda O. Barnes; Battelle Columbus Laboratories; Battelle Memorial Institute; Walter Becker; Peter Berger; Rodger L. Bick; Billings & Gussman, Inc.; Richard Bing; BioResearch Laboratories; Theodore Blau; Irvin Blose; Walter Booker; Evelyn J. Bowers; Thomas H. Brem; Lyman A. Brewer, III; Brigham Young University; Oliver Brooke; Richard Brotman; Barbara B. Brown; K. Alexander Brownlee; Katherine Bryant; Victor B. Buhler; Thomas Burford; J. Harold Burn; Marie Burnett; Maurice Campbell; Carney Enterprises, Inc.; Duane Carr; Rune Cederlof; Domenic V. Cicchetti; Martin Cline; Code Consultants Inc.; Cohen, Coleghety Foundation, Inc.; Colucci, & Associates, Inc.; Computerland; W. Clark Cooper; A. Cosentino; Daniel Cox; Gertrude Cox; CTR; Geza De Takato; Bertram D. Dimmens; Charles Dunlap; Henry