Reports that Matter

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

Post-1964 Research on the Adverse Health Effects of Smoking and

Section 46 of 129

Post-1964 Research on the Adverse Health Effects of Smoking and

Defendants' Persistent Denials Thereof a. Following Publication of the 1964 Report, the Scientific Community Continued to Document the Link Between Smoking and an Extraordinary Number of Serious Health Consequences 661. Smoking and health is one of the most studied subjects in the field of public health.

The Smoking and Health Database, maintained by the Centers for Disease Control and Prevention, United States Department of Health and Human Services, is a bibliographic database -- accessible via the internet -- which includes more than 62,000 items on smoking and health and covers over thirty years of information. The medical literature is replete with extensive epidemiological studies, conducted over decades, comparing the disease and death rates of millions of smokers and nonsmokers. Every relevant population and demographic group has been examined. Examples of these studies are: American Cancer Prevention Study I and II; British Physicians Study; Dorn Study of United States Veterans; National Health Interview Study; Current Population Survey; and the Behavioral Risk Factor Survey. Burns WD, 9:2-16.

309

  1. This body of literature has been cited, reviewed, and discussed in Reports of the Surgeon General on Smoking and Health published in 1964, 1967, 1968, 1969, 1971, 1972, 1973, 1974, 1975, 1976, 1979, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1988, 1989, 1990, 1992, 1994, 1998, 2000, and 2001. Id.

  2. The scientific conclusions presented in each of the Reports of the Surgeon General are based on the consensus of then-existing scientific understanding. Burns WD, 14:10-12.

b. Defendants' Internal Documents and Research from the 1960s, 1970s, and Beyond Reveal Their Continued Recognition That Smoking Causes Serious Adverse Health Effects and Their Fear of the Impact of Such Knowledge on Litigation 664. By at least January 1964, with the issuance of the Surgeon General's 1964 Report,

Defendants knew there was a consensus in the scientific community that smoking caused lung cancer and other diseases. Despite that fact, they publicly insisted that there was a scientific controversy and disputed scientific findings linking smoking and disease knowing their assertions were false.

  1. Following issuance of the 1964 Surgeon General's Report, Helmut Wakeham, then Vice-President of Research and Development at Philip Morris Inc., admitted in a research report that there was "little basis for disputing the findings [of the 1964 Surgeon General's Report] at this time" and acknowledged that the Report reflected a "professional approach" of the Advisory Committee. However, Philip Morris continued to maintain – for another thirty-five years – its public position that the causal link between smoking and health was an "open question." 1000335612-5625 at 5615,
310
  1. According to a February 1964 report prepared by Alan Rodgman at RJR, "Cigarette smoke from any tobacco type or tobacco blend contains carcinogenic components." The report also indicated that "[n]one of the chemical data acquired in our studies or in studies conducted elsewhere is inconsistent with reported biological, pathological, or statistical data indicting cigarette smoke as a health hazard." 504912643-2713 at 2704 (US 20736).
  1. In August 1964, Rodgman recognized in an internal RJR document: Many nitrosamines [substances in tobacco smoke] have been shown to be carcinogenic for different organs in several species of animals. As nitrosamines are formed by the reaction of oxides of nitrogen with secondary amines, it is possible that cigarette smoke could contain nitrosoanabasine and nitrosonornicotine. Nitroanabasine, which is a derivative of the carcinogenic nitrosopiperidine, has now produced many tumors of the esophagus when given orally to rats.

501013277-3277 (US 20670).

  1. In 1966, in a semi-annual report on Philip Morris's "Project 6900," which explored the biological activity of tobacco smoke, Project Director Peter C. Luchsinger noted that "cigarettes will most likely be implicated as one of the causative agents in these diseases [emphysema and bronchitis]." Luchsinger noted that in a series of long-term primate experiments financed by Philip Morris, monkeys forced to inhale smoke had a higher rate of emphysema than those in a nonsmoking control group. Project 6900 included other experiments with smoking rodents, cats and other animals to determine whether different cigarettes affected lung function in a different manner or to a different degree. Luchsinger's report, never released to the public and marked "[n]ot to be taken from this room," concluded that, based on long-term inhalation studies, "gross lung pathology can be induced by smoking cigarettes." 100341400-1414 at 1402, 1406 (US 20095).
311

  1. A May 1967 report on "Project 6900" described further tests with mice, pigs, monkeys and cats, concluding that filtered smoke was "no less tumorigenic than nonfiltered smoke." 1000342063-2073 at 2065 (US 20096).

  2. Philip Morris Senior Scientist, Dr. Helmut Wakeham, informed Philip Morris executives on January 10, 1969, that "[n]ow we have a study of the effect of smoking in pregnancy which supports previous conclusions that smoking mothers produce smaller babies," and that the medical field recognized that "smaller babies suffer detrimental effects all through life," including "lower intelligence test scores at age 10." 1000211305-1307 at 1306 (US 20080).

  1. A 1969 Phillip Morris memorandum revealed: A review of recent mouse skin painting data from the Harrogate Laboratories appearing in progress reports of the Tobacco Research Council (Great Britain) indicates strong support for previously published data on the following points: Cigaret smoke condensate painted on the backs of mice over a two-year period produces tumors in numbers proportionate to the amount of condensate applied. In other words, the dose-response relationship is clearly being followed in these experiments.

2025010581-0583 at 0591 (US 20405).

  1. In the 1960s, RJR established a facility in Winston-Salem, North Carolina, which used mice to research the health effects of smoking. In this facility, nicknamed the "Mouse House," RJR scientists researched a number of specific areas, including studies of the actual mechanism whereby smoking causes emphysema. Internally, an RJR-commissioned report favorably described the Mouse House work as the most important of the smoking and health research efforts because it had come close to determining the underlying mechanism of emphysema. Bumgarner PD, Texas v. American Tobacco, 11/11/86, 32:9-33:5
312

  1. Research done in RJR's science and health group located at the Mouse House was routinely withheld from the scientific community -- scientists were forbidden to both discuss and publish their findings. Id. at 35:3-38:18.

  2. As a result of the Mouse House work, RJR was aware that smoking was linked to emphysema. After extended exposure to smoke, the animals suffered weight loss and changes in metabolism of lipids both in surfactant and in lung and liver. Id. at 63:17-66:15, 68:14-20.

  3. RJR knew that exposing rabbits to tobacco smoke led to: slowing of heartbeat during puffs, decrease in pulse pressure, increased number of goblet cells, alveolar collapse, erythema of nasopharynx, acute pulmonary edema, erythema, endocardial hemorrhage, kidney disease, bronchial hyperplasia, emphysema, epithelial hyperplasia, bronchial edema, bronchiolar plugs, and gross lesions on lungs. 515384994-4999 (US 87983) (1969 Research Report titled "Initial Attempts at Exposing Rabbits to Whole Cigarette Smoke").

  4. Moreover, the fact that RJR scientists had produced emphysema in chronic-smoke- exposed rats was known to Philip Morris. In a 1969 Philip Morris document concerning the biological research program at the Mouse House and the linkage it showed to smoking and disease, a Philip Morris scientist wrote:

I met Dr. Price from R.J Reynolds at the CTR-USA meeting of December 11 and 12, 1969. He mentioned doing chronic cigarette smoke exposure studies with rats. The animals received up to 500 cigarettes and emphysema was produced.

1001882748-2749 at 2748 (US 26123).

  1. In 1970, Philip Morris's President complained to RJR about the work going on in the Mouse House. Despite the progress made there, RJR responded to the complaint by abruptly closing the Mouse House -- disbanding the entire research division in one day, without giving notice to the staff, firing all twenty-six scientists at the Mouse House, and destroying years of smoking and health research. 110315968-5971 (US 26378). The scientists were told that the terminations were not a reflection on their work, but that "economic reasons" caused a change in the direction of the company. When they were dismissed, they were reminded that they had signed confidentiality agreements that meant they were not to discuss company research. Bumgarner, PD, Texas v. American Tobacco, 11/11/96, 38:19-44:4, 44:5-53:24.
313

  1. At the meeting informing employees working at the Mouse House of its disbanding, the group was informed by its supervisor that the legal department had requested their lab notebooks. They were initially told that the notebooks would be returned to them, but they were not. Later, Anthony V. Colucci, Director of the company's Scientific Litigation Support Division, informed them that some of the notebooks had been accidentally destroyed in the legal department. Id. at 38:19-44:4. Only one was ever produced as evidence in this case.

  2. Defendants also obtained evidence about the health effects of smoking that was contrary to their public statements from research they funded jointly. Dr. Gary Huber conducted smoking and health research funded by Defendants from 1972 to 1980 while working at Harvard University Medical School. Huber's research was conducted pursuant to a written agreement between Harvard and B&W, Liggett, Lorillard, RJR, and Philip Morris. The agreement created the Harvard Research Tobacco and Health Program, with Huber as its head and chief investigator. Huber PD, Texas v. American Tobacco, 9/20/97, 11:9-12:16, 24:1-11, 24:13-25:9.

  3. Huber and his group used laboratory animals to conduct numerous studies into the response of the lungs to tobacco smoke. These studies assessed the effects of smoke on lung airways, lung parenchyma, and the heart and cardiovascular systems of animals. The studies also looked at COPD, emphysema, chronic bronchitis and coronary artery disease. Huber's animal studies utilized commercially available and research cigarettes, including commercially available cigarettes supplied by Defendants, and produced human-type diseases in the lungs of animals that inhaled cigarette smoke. The inhalation studies demonstrated changes in animal lungs that Huber's group concluded were analogous to human diseases. Id. at 12:4-13:20, 40:13-15, 40:17-25, 42:2-43:3.

314

  1. Huber specifically reported to his sponsors -- B&W, Liggett, Lorillard, RJR, and Philip Morris -- that his research demonstrated a response to inhaled cigarette smoke, including disease mechanisms similar to those associated with diseases in humans. Id. at 12:20-13:20, 14:17- 15:1, 15:6-16, 17:24-18:14, 18:22-24, 19:3-9.

  2. Huber also conducted research funded by Defendants that studied changes in human smoking behavior as a function of lower and higher nicotine levels in cigarettes. The research demonstrated that smokers of lower nicotine cigarettes had an increased risk of developing pulmonary disease. Huber found that "compensation," or smoking behavior modifications, exhibited by smokers of lower nicotine cigarettes, rendered such cigarettes potentially more harmful than higher nicotine counterparts because more intense inhalation carried the smoke deeper into the lung where adenocarcinoma generally occurs. Id. at 49:6-50:3, 50:5-51:4, 51:6-11.

  3. Another group of inhalation studies conducted by Huber focused on rats. The research showed that rats exposed to cigarette smoke developed emphysema. Huber reported these results to Defendants. Id. at 17:16-18, 18:21-24, 19:3-9.

  4. Huber had frequent contact with scientists working for Defendants, including Alexander Spears of Lorillard, Alan Rodgman of RJR, and Thomas Osdene of Philip Morris.

315

Spears made several site visits to Huber's laboratory and reviewed his progress reports. Spears admitted that the research conducted by Huber concluded that tobacco smoke caused changes in the respiratory tracts of the animals consistent with chronic obstructive lung disease. Id. at 27:15-28:23, 29:4-13; Spears PD, Texas v. American Tobacco, 7/24/97, 233:1-238:12, 239:8-16; Spears PD, Cipollone v. Liggett, 7/26/84, 177:1-181:25.

  1. On September 26, 1977, Philip Morris's Assistant General Counsel, Alexander Holtzman, sent a warning to the company President, Joseph Cullman, informing him that the results from the Harvard Project had led Huber to the conclusion that exposure of rats to cigarette smoke for six months causes emphysema and that a paper announcing those results would be delivered at the American College of Chest Physicians meeting in October, 1977. Holtzman indicated that attorney William Shinn of Shook, Hardy & Bacon, under the direction of industry counsel at the Tobacco Institute, had been sent to modify Huber's views on the results of his research. The attorney did not succeed in altering Dr. Huber's interpretation of the results of his study. The Tobacco Institute prepared a press release to mitigate the damage in the event Huber's interpretation received any media attention. 1005053856-3856 (US 20197).

  2. In 1980, Huber sought to continue his smoking and health research on animals at a time when he was making significant progress, but Defendants cut off funding for his research at Harvard and denied his request for funding after he moved later that year to the University of Kentucky. In a 1980 meeting, Defendants' attorneys told Huber that the reason funding for his research had been discontinued was because he was "getting too close to some things." The attorneys included Lee Stanford from Shook, Hardy & Bacon, Ernest Pepples from B&W, and

316

Arthur Stevens from Lorillard. Huber PD, Texas v. American Tobacco, 9/20/97, 41:4-17, 43:21- 44:15, 46:6-10, 46:12-24, 47:2-5, 73:12-74:18.

  1. A number of exhibits were identified and introduced by plaintiff's and defendant's counsel during Dr. Huber's September 20, 1997 deposition in the State of Texas litigation. The documents shed light on Dr. Huber's relationship with Defendants and provide specific examples of information withheld from him by Defendants. HTT0010212-0214 (US 88807); HTT0010215-0216 (US 88808); HTT0010217-0219 (US 88809); HTT0010220-0222 (US 88810); HTT0010223-0225 (US 88811); 1335866-5870 (US 88812); HTT0010359-0360 (US 88815); HTT0010361-0363 (US 88816); HTT0010364-0368 (US 88817); 1000037069-7069 (US 88818); 501009723-9727 (US 88819); 01421596-1600 (US 88820); 03540193-0194 (US 88821); 01346204-6208 (US 88822); HTT0010392-0404 (US 88823); 504822923-2923 (US 88824); 504912643-2713 (US 88825); HTT0010502-0503 (US 88826); 0000130803-0803 (US 88827); 01370915-0915 (US 88828); HTT0010508-0510 (US 88829); HTT0010511-0513 (US 88830); HTT0010514-0516 (US 88831); HTT0010517-0531 (US 88832); HTT0010532-0534 (US 88833).

  2. When Huber was subpoenaed by the State of Texas to testify in its case against the Defendants in 1997, lawyers for Defendants, including Robert McDermott at Jones Day and Lee Stanford at Shook, Hardy & Bacon, contacted him and urged him "to keep the faith, to hold the line." Huber PD, Texas v. American Tobacco, 9/20/97, 99:21-100:2, 100:4-8. The attorneys implied to Huber that he did not "fully appreciate the full weight of Shook, Hardy & Bacon and Jones Day" representatives of the tobacco industry. The calls caused Huber to fear for the safety and financial security of his family. Id. at 101:4-8, 10-21. Huber perceived a clear message: Defendants wanted to keep him silent. Id. at 102:3-17.

317

  1. After the conclusion of his Texas case deposition, Defendants obtained an order sealing the transcript to keep Dr. Huber's testimony from public view and vigorously opposed efforts by litigants to obtain the transcript. Those efforts continued in this case, before this Court and in the Eastern District of Texas. Defendants succeeded in keeping the transcript sealed for almost seven years, but ultimately, the United States obtained an order from the Eastern District of Texas in 2004, unsealing the transcript, which is cited at length, supra. In re United States' Motion to Modify Sealing Orders, 5:03-MC-2 (E.D.Tex. June 18, 2003), Order of June 8, 2004.

  2. Scientists working for Defendants also recognized the validity of research that Dr. Oscar Auerbach conducted with smoking beagles in the 1960s and early 1970s.

  3. Principal Philip Morris scientist Raymond Fagan sent a memorandum dated February 25, 1970 to Helmut Wakeham, then Philip Morris's Research Director, on "Auerbach's Smoking Beagles" that described his visit to Auerbach's laboratory to observe the smoking dogs and tissue slides. Fagan observed:

I would say that the experiment is a crude one but effective in that carcinoma in dogs has been produced. . . . The crux of the situation is whether there is general agreement by qualified pathologists that carcinoma . . . has indeed been produced. And even if the cancer- production is invalidated the obvious emphysema produced cannot be denied.

1000837391-7392 at 7392 (US 20109).

  1. On April 3, 1970, a company researcher of Gallaher Ltd. (American Tobacco Company's British-based sister company) wrote his managing director a confidential memo titled "Auerbach/Hammond Beagle Experiment" describing Auerbach's research as "undoubtedly a significant step forward" and noting: "[W]e believe that the Auerbach work proves beyond reasonable doubt that fresh whole cigarette smoke is carcinogenic to dog lungs and therefore it is highly likely that it is carcinogenic to human lungs." The research manager continued, "[t]he results of the research would appear to us to remove the controversy regarding the causation of the majority of human lung cancer," and "[t]o sum up, we are of the opinion that Auerbach's work proves beyond all reasonable doubt the causation of lung cancer by smoke." 321993992-3995 at 3992, 3993, 3994 (US 21688).
318

  1. After a review of a presentation before the Tobacco Working Group, Lorillard's Alexander Spears admitted that "[t]he slides (shown by Auerbach) represented obvious lung pathology with increased cellular proliferation with smoke exposure." Spears PD, Cipollone v. Liggett, 7/26/84, 190:1-191:25.

  2. A July 21, 1970 letter from B&W outside counsel Shook, Hardy, Ottman, Mitchell & Bacon to B&W General Counsel Debaun Bryant, reveals that B&W was concerned that statements of B&W and BAT employees, "which appear to demonstrate a belief on the part of company personnel that cigarette smoking has been established as a general health hazard or a cause of some particular disease or diseases," would expose B&W and BAT to smoking and health litigation. As examples, the letter discusses statements memorialized in the minutes of a conference at Kronberg, Germany, held from June 2 through 6, 1969 that was attended by both BAT and B&W researchers. It was David Hardy's opinion that such statements "constitute a real threat to the continued successful defense of smoking and health litigation." The statements which generated concern included, but were not limited to:

There is a possibility that the experiments taking place at R. & D. E., Southampton, with the membrane of the chicken embryo, might be showing genuine carcinogenic effects in days; and

319

The conclusion of the Conference was that at the present time the Industry had to recognize the possibility of distinct adverse health reactions to smoke aerosol: (a) Lung Cancer (b) Emphysema and Bronchitis. . . .

The letter also discusses additional concern stemming from the existence of a "'BAT/B&W Cost & Risk Pooling Agreement' executed in July 1969." 681805313-5319 at 5313, 5314, 5316 (US 30935).

  1. Defendants also reviewed outside research that confirmed that smoke constituents were carcinogenic. A February 14, 1973 research report distributed to Defendants and their outside law firms linked smoking to cancer. The report, titled "Cigarette Smoke Condensate Preparation and Dermal Application to Mice," was prepared by Hazelton Laboratories and submitted to American, B&W, Liggett, Lorillard, Philip Morris, RJR, and the law firm of Covington & Burling. It reported that "97 of the 100 mice developed gross lesions in the skin in the area of dermal applications of benzo(a)pyrene." Examination indicated that these were squamous cell carcinomas. 501547434- 7448 at 7444 (US 20682).

  2. On January 7, 1969, Wakeham informed his superiors at Philip Morris that an abstract of a paper prepared by a researcher receiving CTR funding stated: "scientific findings suggest that inhalation of fresh cigarette smoke may enhance carcinogenesis in mice." 682011667-1671 at 1668 (US 21021).

  3. In 1974, David Hardy of Shook, Hardy & Bacon advised BATCo against admitting to the public what its scientists knew internally -- that smoking causes disease. At the time, BATCo was considering placing a warning on cigarette packages sold in England -- with no government attribution -- that stated that smoking "causes lung cancer, bronchitis, heart disease." In a letter addressed to BATCo, Hardy advised that this admission of fact would impede the defense of smoking and health litigation in the United States. He wrote:

320

The proposed new warning removes the attribution of the warning to "H.M. Government," and instead appears to be a voluntary and direct admission by the cigarette manufacturer that the cigarettes contained in the package cause "lung cancer, bronchitis, heart disease." A wholly owned subsidiary of the manufacturer would, in our opinion, be adversely and prejudicially effected by such a voluntary warning even though it is a separate entity.

Once the fact and content of the warning got before a jury in the United States in a case involving the subsidiary, the defense of "no proof of causation" would be lost for all practical purposes. Such a result would indeed be unfortunate in view of the fact that in every instance where the matter has been explored in our Courts through expert testimony and otherwise, the cigarette manufacturer has prevailed.

110318156-8157 at 8156, 8157 (US 34974).

  1. Similarly, a January 1, 1976 letter from B&W Vice President and General Counsel,

Ernest Pepples, to BATCo General Counsel, H.A. Morini, discusses B&W's concern that voluntary consent by BAT to placing additives under the Tobacco Medicine Act would prejudice B&W, because it could attribute to B&W knowledge of specific hazards, which would badly weaken

B&W's litigation position. MNATPRIV00023457 (US 86869).

  1. In 1980, in a confidential memo analyzing BAT public positions and their impact on

B&W's stance in litigation , BATCo internally admitted: "It is simply incorrect to say, 'There is still no scientific proof that smoking causes ill-health.'" 680050983-1001 at 0998 (US 20981).

  1. Philip Morris scientist James Charles (who would later serve as the company's Vice

President of Research) sent a February 23, 1982 memorandum to department head Thomas Osdene, responding to the 1982 Surgeon General's Report on Smoking and Health: "Cigarette smoke is biologically active" and "cigarette smoke condensate applied to the backs of mice causes tumors." He listed nine facts relating to the biological activity of cigarette smoke and told Osdene "you may shred this document . . . or use [it] in any way you see fit." 1003171563-1567 at 1564, 1566 (emphasis in original) (US 26137).

321

  1. On May 4, 1982, a BATCo consultant, Francis Roe, wrote to BAT and explained why he believed the industry position on causation to be unsupported, noting that "[i]t is not really true, as the American Tobacco industry would like to believe, that there is a raging worldwide controversy about the causal link between smoking and certain disease." 100432193-2203 at 2194 (US 20182).

  2. RJR's recognition of the validity of epidemiological and scientific studies led Anthony V. Colucci, Director of the company's Scientific Litigation Support Division, to write to attorney James E. Young of Jones, Day, Reavis & Pogue to push the "mechanistic argument" of causation. In a 1986 memorandum, Colucci explicitly admitted: "that cigarettes are a risk factor for human lung cancer is an irrefutable fact." 507910855-0856 at 0855 (US 20803).

  3. By 1980, Lorillard was aware that every major medical and scientific group in America that had studied the question had concluded that smoking causes disease. The company was equally aware that the only scientific studies to disagree with that conclusion were performed or funded by the tobacco industry. Spears PD, Texas v. American Tobacco, 7/24/97, 58:3-60:12.

  4. The testimony of two high-level Philip Morris scientists fully corroborates the documentary evidence cited above that Defendants were totally aware of and convinced that smoking caused disease. First, former Philip Morris scientist Dr. William Farone, who worked at Philip Morris for 18 years and was impressive and credible as both a fact and expert witness, when asked what the view was among Philip Morris scientists on the question of whether smoking cigarettes is a cause of lung cancer and other diseases, responded:

322

There was widespread acceptance that smoking caused disease. I never talked with a scientist at Philip Morris who said that smoking doesn't cause disease.

When asked what the basis was for this understanding, he stated:

The compelling epidemiology such as that recounted in the Surgeon's General's reports, and our knowledge about the chemicals that were created by cigarettes and what was delivered to the smoker, hundreds of times per day on average.

Dr. Farone was also asked whether any of these executives in his discussions with them challenged the validity of the scientific evidence that smoking causes disease, and answered:

No. Their comments generally focused on how the company could or should respond, not to whether the scientific evidence was valid. Remember, a main reason why they hired me in 1976 was to help develop a less hazardous cigarette. It seemed to me at the time I was hired, and certainly was the case during my entire time there, that hiring me for that job was itself implicit recognition that the cigarettes that were out there being sold were causing disease.

Farone WD, 66:11-18, 68:22-69:10.

  1. Second, Dr. Jerry Whidby, a former Philip Morris scientist who continues to appear as a fact and expert witness for the company and was paid $2800 per day by Philip Morris for his testimony in this case, responded to questions from the Court on the same subject:

THE COURT: And you were asked in this question: "How long have you recognized that smoking was dangerous and caused cancer, emphysema and other disease?"

And am I correct that you answered: "Since years before I went to work for Philip Morris."

323

So the answer would be, I gather, that for years before 1972, you recognized that smoking caused cancer, emphysema and other disease, is that correct?

THE WITNESS: Yes, that is correct. When I was in high school and grammar school, we talked about it in school.

THE COURT: And the next question was: "Have you ever doubted that smoking was dangerous and caused cancer, emphysema and other diseases?"

And you answered: "No, I have never doubted that." Is that correct?

THE WITNESS: That's what I answered, yes.

THE COURT: And were you aware from 1972 for at least 20 years, more than 20 years that you were working at Philip Morris, that Philip Morris was taking the public position that it was an open question as to whether smoking was dangerous and caused cancer, emphysema and other diseases?

THE WITNESS: I was aware of some of those statements, not all the statements, no.

THE COURT: . . . but did you not also testify in your direct that that was the common knowledge amongst your scientific colleagues at Philip Morris, that smoking was dangerous and caused cancer, emphysema and other diseases?

THE WITNESS: People I worked around who shared their beliefs with me, yes, that's what we thought. We were there to make the cigarette better.

Whidby TT, 2/22/05, 14112:6-14113:11.

c. Despite Their Internal Knowledge, Defendants Continued, From 1964 Onward, to Falsely Deny and Distort the Serious Health Effects of Smoking

  1. Defendants responded to the 1964 Surgeon General's Report, which reflected the scientific consensus that smoking causes lung cancer with a campaign of proactive and reactive responses to scientific evidence that was designed to mislead the public about the health consequences of smoking. Defendants' goal was to create and maintain the smoking habit so as to enhance corporate profits.
324

  1. In November 1967, at the direction of outside lawyers David Hardy of Shook, Hardy & Bacon, and Ed Jacobs of Cabell, Medinger, Forsyth & Decker, the Tiderock Corporation, the Tobacco Institute's public relations firm, prepared an action plan titled "The Cigarette Controversy." The action plan proposed to influence public opinion by creating specific initiatives to re-open the "open question" cigarette controversy. The program called for the creation of a position paper for intra-industry use as well as one for distribution to the media and public. The plan included targeted categories for mailings such as the medical profession, scientists, communicators (press, radio, television), educators, top public figures, and 10,000 top corporate presidents. It also detailed the publication of magazine articles. 1005109086-9106 (US 20211); TIMN0070816-0821 (US 77048); 502644592-4616 (US 20703).

  2. In 1968, the Tobacco Institute published a pamphlet titled "The Cigarette Controversy: An Examination of the Facts by the Tobacco Institute -- The Tobacco Industry's Contribution to Health Research." It declared:

In order to help advance scientific understanding of the causes, as well as the means of preventing and controlling disease, the American tobacco industry has contributed millions of dollars for independent research on smoking and health. During the past thirteen years, the industry has supported over 300 independent health studies through the industry's Council for Tobacco Research - U.S.A. Do cigarettes cause disease? In spite of all the debate -- in spite of all of the research -- that question is still unanswered. The industry will continue to seek the truth in the continuing cigarette controversy.

TINY0006498-6601 at 6534-6536 (US 87056); TIMN0104765-4868 at 4802-4803 (US 21613).

325
  1. An April 23, 1968 publication of The Cigarette Controversy re-stated and re- emphasized Defendants' views:

Q: Has any important new evidence against cigarettes been reported in recent years? A: No. Cigarettes today are branded guilty on virtually the same kind of evidence that was considered insufficient only a few years ago.

*** Q: Is smoking a health hazard? A: That question is still an open one. *** At that time [the early 1950s], most scientists considered the findings of these studies insufficient to prove a case against smoking. Since then, many other studies have been done. But there is still no proof that cigarette smoking is a cause of lung cancer -- or any other disease.

502644592-4616 at 4595, 4596 (US 20703).

  1. In a 1969 press release titled "American Tobacco Refutes Anticigarette Charges," American announced it was distributing another version of "The Cigarette Controversy." The booklet purported to review research done over the prior fifteen years and concluded that, in the absence of medical evidence, "the question is still an open one." It was mailed to more than 140,000 stockholders of American. TLT0962304-2309 at 2304 (US 88668).

  2. This updated version presented "facts" explaining that there was "controversy" surrounding the science of smoking and health that must be answered by further scientific research and public discussion. The pamphlet was reviewed by CTR's Scientific Director Robert Hockett prior to publication. According to a letter from David Hardy to Hockett, this Tobacco Institute booklet was written to explain to the public the "reasons why representatives of the Cigarette Industry contend that the case against cigarettes has not been proved." Hardy explained that "the Tobacco Institute has felt it desirable to have some readable document or pamphlet to give them which spells out some of the unanswered questions." 1005152849-2896 (US 20226); HK0108004- 8004 (US 21171).

326

  1. In 1971, the Tobacco Institute revised and republished another edition of "The Cigarette Controversy -- eight questions and answers." It was distributed by direct mail to physicians, librarians, newspaper and magazine editors, Members of Congress and their top aides, members of public relations groups, medical school faculties, leading tobacco growers and executives of industry supplier firms, other United States business leaders, college and university presidents and department heads, science writers, and business and financial writers and securities analysts. Copies were also mailed to a large list of ministers. The mailing went to nearly 350,000 persons. It was sent to over 300 radio and television station managers together with a sixty second announcement. TIMN300233-0257 (US 21675); 690014815-4838 (US 21041); TIMN0080470-0477 (US 21716); 03768320-8337 (US 20064).

  2. In 1971, the Tobacco Institute published a shorter summary of the 1970 "Cigarette Controversy" pamphlet titled "Smoking/Health An Age-Old Controversy." This leaflet briefly stated Defendants' opinions on the questions of causation and the validity of the scientific research conducted to date. A November 9, 1973 Tobacco Institute memorandum described "Smoking/Health An Age-Old Controversy" as a "good synopsis of the [1970] pamphlet" and a "shorter version of the industry stand on the cigarette controversy" that should "be put to good use." TIMN0121524-1527 (US 21710); TIMN0395428-5429 at 5429 (US 21365).

327

  1. In November 1971, RJR requested and received from the Tobacco Institute 1,000 copies of the pamphlet "Smoking/Health An Age Old Controversy" for use in responding to inquiries from children about smoking and health. In February 1973, 500 more copies were requested, again for responding to school children. TIMN0121524-1527 (US 21710); 500005148-5148 (US 21323); 500013882-3882 (US 20611).

  2. After the publication of "The Cigarette Controversy," the Tobacco Institute published a series of advertisements in various magazines, inviting readers to request copies of the pamphlet. For example, on November 6, 1972, the Tobacco Institute ran an advertisement in The Nation that stated "YOU HAVE A RIGHT TO A FULL DISCUSSION ABOUT smoking and health. The cigarette question is still a question. Send for free booklet, 'The Cigarette Controversy.'" TIMN0124460-4460 (US 21333).

  3. The Tobacco Institute published a 1974 version of "The Cigarette Controversy" and continued to argue that objective research was needed to explore questions about smoking and health. The Cigarette Controversy stated that a causal relationship between smokers and illness or death had not been established and that such claims were unproven. Over one million copies of the Cigarette Controversy, which was described as "the basic guide for other forms of communication," were in print by the end of the year. TIMN0017604-7612 (US 23020); TIMN217628-7639 at 7634 (US 21263).

  4. In an address delivered on October 3, 1967, Paul D. Smith, Vice President and General Counsel of Philip Morris, stated: "The truth of the matter is this: No one knows whether cigarette smoking causes any human disease or in any way impairs human health." Smith also claimed that "[n]obody has yet been able to find any ingredient as found in tobacco or smoke that causes human disease." He also criticized the Public Health Service's accusations against tobacco and claimed that the public research community was biased due to its receipt of federal funds. 2015068601-8612 at 8603, 8611 (US 20337); 2010035814-5818 (US 21603).

328

  1. In 1968, a sportswriter named Stanley Frank, who worked for Hill & Knowlton was paid $500 by the Tobacco Institute, to write an article titled "[T]o smoke or not to smoke -- that is still the question," which appeared in the "Science" section of True Magazine. In the article, Frank stated that he had reviewed the evidence on smoking and disease and found it inconclusive and contradictory. See, III(D)(3)(¶167-168). TIMN462375-2380 (US 21660); 690012994-2994 (US 54322).

  2. The Tobacco Institute ordered millions of reprints of the Stanley Frank article for mass mailings. In April 1968, Lorillard, RJR, Philip Morris, and B&W purchased reprints of the article for further mailings. 690012994-2994 (US 54322); TIMN0070307-0307 (US 21571); TIMN0070324-0335 (US 21592); TIMN0071398-1401 (US 21301).

  3. In an internal memorandum outlining the Tobacco Institute's involvement with the Frank article, William Kloepfer, Vice President of Public Relations at the Tobacco Institute, noted with approval that the Tobacco Institute's involvement in another article, "the Barron's editorial," had not been uncovered:

It should be noted that our earlier project, the advertisement of the Barron's editorial, escaped noticeable rebuttal. The editorial will be remembered, however, as an independent criticism of government activity, with no reasonable suspicion possible that cigarette interests were responsible for its preparation.

329

TIMN0071398-1401 (US 21301); 1005112459-2461 at 2460 (US 20213).

  1. All these activities, such as the Cigarette Controversy series, the Frank article, and public statements of the industry were undertaken as part of a concerted, wide-ranging public relations strategy on the part of Defendants to mislead the public. A 1968 Tobacco Institute

"Tobacco and Health Research Procedural Memo" lays out the basic strategy:

The most important type of story is that which casts doubt on the cause and effect theory of disease and smoking. . . . [T]he headline should strongly call out the point -- Controversy! Contradiction! Other factors! Unknowns!

TIMN0071488-1491 at 1489 (US 21302).

  1. In 1969, the Tobacco Institute prepared an article titled "Centuries-old

Smoking/Health Controversy Continues," which asserted that the causes of cancer and heart disease were still unknown. The article stated that evidence concerning smoking and cardiovascular disease was, if anything, more confused than it was in 1964 and did not permit the conclusion that there was a causal relationship between smoking and cardiovascular disease. TIMN395434-5437 (US 21664).

  1. Claims that smoking was only statistically linked to disease persisted. A February

3, 1969 CTR press release explained:

The scientist who has been associated with more research in tobacco and heath than any other person [Clarence Cook Little, Executive Director of CTR] declared today that there is no demonstrated causal relationship between smoking and any disease. The gaps in knowledge are so great that those who dogmatically assert otherwise -- whether they state that there is or is not such a causal relationship -- are premature in judgment. If anything, the pure biological evidence is pointing away from, not toward, the causal hypothesis. . . . Statistical associations between smoking and lung cancer, based on study of those two factors alone, are not proof of causal relationship in the opinion of most epidemiologists.

330

  1. On February 6, 1969, the general counsels for Philip Morris, RJR, B&W, Lorillard, and Liggett, all of whom were members of the Committee of Counsel, approved publication of the foregoing press release under the headline: "How much is known about smoking and health." The ad was run in major newspapers around the country, advertising journals, and medical journals, including papers in Richmond, Raleigh, Knoxville, Nashville, Washington, New York, Louisville, Lexington and Columbia; in the eastern edition of the Wall Street Journal, Advertising Age, Broadcasting, Editor and Publisher, Southern Advertising and Publishing, National Association of Retail Druggist Journal, Food Topics, VEND, Retail Tobacconist, Southern Tobacco Journal, Tobacco, Tobacco Distributor and Confectionary Guide, Tobacco Jobber, Tobacco Leaf, Tobacco Record, Tobacco Reporter, US Tobacco Journal, Medical World News, Medical Economics, and US Medicine. 1005132848-2849 (US 20222); 1005153098-3099 (US 20227); TIMN0081698-1698 (US 21309); TIMN0000560-0561 (US 21874); TIMN0081695-1696 (US 21308).

  2. Defendants realized that they needed to change public opinion in order to sustain the viability of the tobacco industry given the fact that there was little, if any, evidence to support their position. In an August 10, 1967 RJR memorandum from J.S. Dowdell to C.B. Wade, Dowdell acknowledged:

Despite the fact that the industry has very little, if any, positive evidence upon which to base the aggressive campaign necessary at this late date to materially change public opinion, public attitudes can be changed. At least to the extent that the majority who now believe smoking is a proven cause of lung cancer could become doubtful; and, others who are now skeptical could be convinced that before the industry is further penalized more evidence is required. However, the unfavorable opinion on the hazards of smoking will remain definitely high, and will not shift in a favorable direction, until positive action

331

is taken by the industry to counter the anti-smoking propaganda and publicity.

Dowdell advocated that the Tobacco Institute Executive Committee approve the 1967 Public Relations Program and begin an aggressive public relations campaign. 500006192-6194 at 6193 (US 47761) (emphasis in original).

  1. At the same time, an internal B&W document titled "Smoking and Health Proposal" explained: "Doubt is our product since it is the best means of competing with the 'body of fact' that exists in the mind of the general public. It is also a means of establishing a controversy." 690010951-0959 at 0954 (US 21040).

  2. In a 1969 B&W document prepared for public dissemination titled "How Eminent Men of Medicine and Science Challenged the Smoking-and-Health Theory During Recent Hearings in the U.S. Congress," B&W stated that "the question of smoking and health remains an open, not a closed, issue." B&W also asserted that "[t]he cause of cancer in humans, including the cause of cancer of the lung, is unknown" and that "[t]he concept that cigarette smoking is the cause of the increase in lung cancer and emphysema is a colossal blunder." 650332832-2839 at 2833, 2835-2836 (US 20947).

  3. On November 11, 1969, the Tobacco Institute published an advertisement titled "All Advertising Should be Truthful," containing a reprint of an Advertising Age article titled "The Truth Seems a Little Twisted." The article attacked the American Cancer Society and the American Heart Association commercials informing the public about the risks of cigarette smoking. The article stated that the commercials were untruthful and misleading and that "wild" unsupported statements should not be permitted on the air. The Tobacco Institute ran these advertisements in newspapers in New York, Boston, Philadelphia, Washington, Chicago, Los Angeles and San Francisco and in issues of Time, Newsweek, and the Wall Street Journal. 1005132842-2842 (US 21667); 1005132840-2840 (US 21668); 1005132841-2841 (US 21669).

332

  1. In February 1970, the Tobacco Institute issued an announcement titled "The Tobacco Institute believes the American public is entitled to complete, authenticated information about cigarette smoking and health," with the subtitle "The American Cancer Society does not seem to agree." This announcement challenged information issued by the American Cancer Society concerning a research project published by Dr. Oscar Auerbach titled "The Effects of Cigarette Smoking Upon Dogs." For a complete discussion of Defendants' efforts with respect to the Auerbach Studies, see Section III(F)(3) and Section V(A)(5)(b)(¶690-693), supra. TIMN0081949- 1949 (US 21686).

  2. On April 30, 1970, the Tobacco Institute sent a press release that falsely claimed that the American Cancer Society had refused to release experimental data underlying the Auerbach/Hammond "smoking beagles" study, which discovered bronchial carcinoma in beagle dogs forced to smoke tobacco. T076378-6379 (US 21237).

  1. In March 1970, the Tobacco Institute approved television spots which said: Today, we in this industry support more impartial research on the vital question of tobacco and health than any agency of the Federal Government, and more than all the voluntary agencies combined. We have great confidence that the findings of this research will lead the way in providing fair and accurate information regarding cigarette smoking. *** Do Smokers have common sense? We in the tobacco industry believe they do, and that millions of reasonable and responsible men
333

and women who smoke will not be misled by the campaign of fear that is conducted against smoking. We believe that these emotional charges are no substitute for objective facts gathered from research.

2010008819-8822 at 8820 (US 20300).

  1. On April 22, 1970, a CTR press release titled "Studies Raise Questions About

Smoking as Health Hazard" quoted Clarence Cook Little as stating: "The deficiencies of the tobacco causation hypothesis and the need of much more research are becoming clearer to increasing numbers of research scientists." 500015901-5905 at 5902 (US 47778).

  1. On September 7, 1970, Dr. Sheldon Sommers, Scientific Director of CTR and

Chairman of the SAB, asserted in an article titled "Smoking and Health: Many Unanswered

Questions": "I do not believe it has been scientifically established that cigarette smoking causes human disease," and, "The Council for Tobacco Research is deeply committed to the search for answers." ZN16062-6065 at 6063, 6065 (US 21161).

  1. In December 1970, the Tobacco Institute issued yet another statement, published as an advertisement in major American newspapers, titled "The Question about Smoking and Health

Is Still a Question":

[A] major portion of this scientific inquiry has been financed by the people who know the most about cigarettes and have a great desire to learn the truth . . . the tobacco industry. And the industry has committed itself to this task in the most objective and scientific way possible . . .1115 reports in all. Through this work much valuable data have been produced about lung cancer, heart disease, chronic respiratory ailments and other diseases. However, there's still a lot more to be learned. . . . There are eminent scientists who believe that the question of smoking and health is an open one and that research in this area must go forward. From the beginning, the tobacco industry has believed that the American people deserve objective, scientific answers. With this same credo in mind, the tobacco industry stands ready today to make new commitments for additional

334

valid scientific research that offers to shed light on new facets of smoking and health.

The "eminent scientists" in such pronouncements were never identified. Defendants widely distributed reprints of the advertisement and provided it to every member of Congress with a personal letter from Horace Kornegay, President of the Tobacco Institute. TIMN0081352-1352 (US 21305); 2010008873-8873 (US 22010); 1005132832-2832 (US 21666); 2010008878-8879 (US 36514); 500004807-4809 at 4807 (US 20608); Brandt WD, 128:14-129:11.

  1. Defendants' executives also continued to insist in the 1970s, as they had in the 1950s, that "if and when" any harmful elements were identified in cigarettes, they would take necessary steps to remove them. For example, on January 3, 1971, Joseph Cullman III, President of Philip Morris, explained in a "Face the Nation" television interview:

[T]his industry can face the future with confidence because when, as, and if any ingredient in cigarette smoke is identified as being injurious to human health, we are confident that we can eliminate that ingredient . . . . We do not believe that cigarettes are hazardous; we don't accept that. But we are working with the government, working very hard with the government, on various methods of ascertaining whether or not cigarettes can be found to be hazardous. . . . I believe they have not been proved to be unsafe.

1002605545-5564 at 5550, 5560 (US 35622).

  1. During the same televised interview, Cullman falsely denied that cigarettes posed a hazard to pregnant women or their infants: "[I]t's true that babies born from women who smoke are smaller, but they are just as healthy as the babies born to women who do not smoke. Some women would prefer to have smaller babies." His statement contradicted the information Helmut Wakeham, Philip Morris's Vice President for Corporate Research and Development, had given him two years earlier. 1002605545-5564 at 5561-5562 (US 35622); 1000211305-1305 (US 20080).
335

  1. In an effort to detract attention from smoking as a cause of disease, Defendants pointed to other possible causes. On January 3, 1971, a Tobacco Institute press release contained statements criticizing public health efforts, and suggesting to the public that not enough was being done to investigate incidents of lung cancer in nonsmokers. The press release alleged that "thousands of lung cancer victims who have never smoked cigarettes [are] being neglected by expensive propagation of myths instead of scientific knowledge." It also quoted Tobacco Institute President Horace Kornegay: "Any organization in a position to apply resources in the search for those keys -- and which fails to do so -- will continue to be guilty of cruel neglect of those whom it pretends to serve." Kornegay told the public that the Defendants planned to provide more than four million dollars in 1971 for independent scientific research. 2001052715-2718 at 2716, 2718 (US 21719); TIMN0123716-3720 at 3717 (US 21328).

  2. A May 25, 1971 Tobacco Institute press release publicly denied any links between smoking and health. In this press release, Defendants again represented that "many eminent scientists" (unidentified) believe that "the question of smoking and health is still very much a question." TIMN0131768-3769 at 3769 (US 21337).

  3. In a press release dated November 15, 1971, the Tobacco Institute challenged the claim that smoking is harmful to pregnant women. Horace Kornegay, President of the Tobacco Institute, was quoted: "We just don't know, and only further research on smoking and all the other possible factors that may affect pregnancy will answer the question." TIMN0100469-0470 at 0469, 0470 (US 21687).

  4. The Tobacco Institute prepared an entire "backgrounder" on smoking and pregnancy which was sent to newspaper editorial writers throughout the country. A TI press release discussing the backgrounder claimed that ". . . opponents of cigarettes are endeavoring to scare pregnant women with such statements as that of the Surgeon General that 'we are losing babies because of mothers' smoking.'" TIMN0100469-0470 at 0469 (US 21687).

336
  1. In the January 24, 1972 issue of the Wall Street Journal, Philip Morris's Senior Vice President James Bowling was quoted as stating: "[i]f our product is harmful . . . we'll stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out." Bowling further stated that "[w]e don't know if smoking is harmful to health, and we think somebody ought to find out." 500324162-4164 at 4163 (US 20627).
  1. On February 1, 1972, the Tobacco Institute issued a press release declaring that [t]he cigarette industry is as vitally concerned or more so than any other group in determining whether cigarette smoking causes human disease, whether there is some ingredient found in cigarette smoke that can be shown to be responsible, and if so, what it is

and that

despite this effort [the commitment of $40 million by the tobacco industry for smoking and health research] the answers to the critical questions about smoking and health are still unknown.

TIMN0120596-0597 at 0597 (US 21321).

  1. Defendants issued scathing comments about official reports demonstrating the adverse health effects of smoking. For example, a February 26, 1972 Tobacco Institute press release asserted that the 1972 Surgeon General's Report on the Health Consequences of Smoking "insults the scientific community" and that the report was "another example of 'press conference science' -- an absolute masterpiece of bureaucratic obfuscation." The press release further asserted that "the number one health problem is not cigarette smoking, but is the extent to which public health officials may knowingly mislead the American public." TIMN0120602-0603 at 0602 (US 21322).
337
  1. The reasoning behind the Tobacco Institute's public relations campaign based on the open question controversy is explained in a 1972 Tobacco Institute internal document, which stated:

In the cigarette controversy, the public -- especially those who are present and potential supporters (e.g. tobacco state congressmen and heavy smokers) -- must perceive, understand, and believe in evidence to sustain their opinions that smoking may not be the causal factor.

87657703-7706 at 7705 (US 21098).

  1. A May 1, 1972 memo written by Fred Panzer, Vice President of the Tobacco Institute, to Horace Kornegay described the strategy employed by Defendants:

For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts -- litigation, politics, and public opinion.

While the strategy was brilliantly conceived and executed over the years helping us win important battles, it is only fair to say that it is not -- nor was it intended to be -- a vehicle for victory. On the contrary, it has always been a holding strategy consisting of

-- creating doubt about the health charge without actually denying it

-- advocating the public's right to smoke, without actually urging them to take up the practice

-- encouraging objective scientific research as the only way to resolve the question of health hazard.

On the litigation front for which the strategy was designed, it has been successful. While we have not lost a liability case, this is not because juries have rejected the anti-smoking arguments.

On the political front, the strategy has helped make possible an orderly retreat. But it is fair to say that it has not stemmed the

338

pressure for new legislation, despite the major concessions we have made.

On the public opinion front, however, our situation has deteriorated and will continue to worsen. This erosion will have an adverse effect on the other fronts, because here is where the beliefs, attitudes and actions of judges, juries, elected officials and government employees are formed.

Panzer, like other industry executives, noted that the open question strategy was not likely to be successful much longer. Still, he believed the traditional defense was viable in some respects:

As things stand we supply them [the public] with too little in the way of ready-made credible alternatives.

Two such credible alternatives exist:

  1. The Constitutional Hypothesis i.e. people who smoke tend to differ importantly from people who do not, in their heredity, in constitutional makeup, in patterns of life, and in the pressure under which they live.
  1. The Multi-factorial Hypothesis i.e. as science advances, more and more factors come under suspicion as contributing to the illnesses for which smoking is blamed–air pollution, viruses, food additives, occupational hazards and stresses.

Our 1970 public opinion survey showed that a majority (52%) believed that cigarettes are only one of the many causes of smokers having more illnesses. It also showed that half of the people who believed that smokers have more illnesses than nonsmokers accepted the constitutional hypothesis as the explanation.

TIMN0077551-7554 at 7551-7553 (US 63585) (emphasis in original).

  1. Following this strategy, on January 14, 1975, the Tobacco Institute released another version of its booklet "The Cigarette Controversy." This announcement stated that:
339

If smoking does cause disease, why, after years of intensive research, has it not been shown how this occurs? And why has no ingredient as found in smoke been identified as the causal factor? These are among the unanswered questions set forth in a new publication of the Tobacco Institute, titled The Cigarette Controversy.

TIMN0120638-0639 at 0638 (US 21698) (emphasis in original).

  1. Defendants continued to recognize and exploit the fact that their public relations campaign provided rationalizations for the smoker. Their use of public relations was calculated and precise, and internal research done on it demonstrated its efficacy. As B&W stated in a November

29, 1976 memo titled "Cigarette Advertising History":

Good cigarette advertising in the past has given the average smoker a means of justification on the two dimensions typically used in anti-smoking arguments: [risk to health and immorality] . . . All good cigarette advertising has either directly addressed the anti-smoking arguments prevalent at the time or has created a strong, attractive image into which the besieged smoker could withdraw.

680086039-6044 at 6039, 6040 (US 20984).

  1. On June 6, 1977, Addison Yeaman, B&W's General Counsel, publically reaffirmed

Defendants' promise to conduct meaningful research, as he explained in his remarks at Maxwell

Associates' Biannual Tobacco Seminar that:

I am utterly secure in saying to you that the tobacco industry recognizes its responsibility and its duty and that it will continue its every effort and at whatever cost to find the answer to the question, "what part, if any, does tobacco play in human diseases."

CTRPUBLICSTMT001437-1445 at 1445 (US 21164).

  1. In a document distributed by B&W titled "Facts Every Tobacco Man Should

Remember," which appeared in the October 27, 1977 edition of the United States Tobacco Journal,

B&W claimed that "[t]he case against tobacco is not closed . . . in a sense, the jury still isn't able to retire to consider the case because it doesn't have all the relevant facts." 544001284-1297 at 1285750. The Tobacco Institute's public relations strategy focused its attention on disseminating Defendants' message to the public that there was no definite link between smoking and health and that, until answers to these questions were found, smokers should not fear that their health was endangered. Defendants' four-point platform was set out in a December 29, 1977 Tobacco Institute press release:

340
  1. The question of smoking and health is still a question requiring scientific resolution. 2. Tobacco smoke does not imperil normal nonsmokers. 3. The tobacco farm program is an essential part of public policy. 4. The freedom of choice of our industry's customers must be preserved.

TIFL0522279-2280 at 2280 (US 21424).

  1. In 1977, the Tobacco Institute published a pamphlet titled "Facts About the Smoking Controversy." The pamphlet claimed that the 1964 Surgeon General's Report "was essentially a 'study of numbers -- a selective review of population studies which compared disease rates among smokers, ex-smokers and nonsmokers.'" It also stated: "Has the Surgeon General's report established that smoking causes cancer or other diseases? No." TIMN0055129-5135 at 5130 (US 21298).

  2. Defendants aimed much of their public relations campaign at lung cancer and, as time went on, heart disease. In 1978, a Tobacco Institute pamphlet stated: "The flat assertion that smoking causes lung cancer and heart disease and that the case is proved is not supported by many of the world's leading scientists." TIMN319568-9604 at 9578 (US 62902).

341

  1. On January 12, 1978, Ross Millhiser, President of Philip Morris, stated in a letter to the editor in the New York Times: "as for the lack of research on the 'harmful' effects of smoking, the fact is there is good reason to doubt the culpability of cigarette smoking in coronary heart disease." ATC2411308-1308 (US 21378).

  2. In May 1978, the Tobacco Institute published a fifty-four page document titled "Fact or Fancy?" and sent it to broadcasters, editors, writers, and officers of women's associations and organizations "because the tobacco and health controversy has increasingly focused on women and smoking." The document claimed to have been produced "to present more factual and balanced answers on the health question about which mature women need to know more." It presented the controversy argument that causality had yet to be proven in any of the diseases and conditions linked statistically with cigarette smoking. 03731785-1838 (US 21466); 04326897-6897 (US 21468); 04326898-6898 (US21467); 04326900-6900 (US 21469); 04326901-6901 (US 21470).

  3. Defendants also continued to insist publicly that there was no need to undertake research to develop "safer" cigarettes, since they asserted that the cigarettes then being sold were not harmful to health. In June 1978, William Dwyer, Vice President of the Tobacco Institute, explained in an article titled "Smoking: A Free Choice":

A question often asked of the tobacco industry is whether researchers are developing a "safe" cigarette. A variation of that question is whether low "tar" nicotine cigarettes are safer. The tobacco industry is convinced that no cigarette has been proved unsafe. Therefore, they regard any suggestion of a "safe" or "safer" cigarette as tortured logic. The reduced "tar" and nicotine cigarettes represent about 20 percent of sales and are in the marketplace because of consumer

342

demand. That demand obviously reflects the personal preferences of smokers.

TIMN0074796-4800 at 4797 (US 21480).

  1. In December 1978, the Tobacco Institute published "The Smoking Controversy: A Perspective." The publication stated that society was on the "brink of paranoia" regarding smoking; that "[n]o one really knows whether this personalized warfare against tens of millions of Americans will prevent a single case of lung cancer"; that "[n]o one really knows the root or causes of cancer"; and that the "wars" against disease that were being "waged by the government and voluntary health agencies" were "beyond the realm of science." TIMN0129593-9628 (US 21499); MNAT00224317- 4354 (US 21223).

  2. In 1979, the Tobacco Institute published a document titled "TOBACCO from seed to smoke amid controversy." It stated flatly that "it has not been established that smoking causes any human disease." 690142176-2180 at 2178 (US 21512).

  3. One year prior to the release of the 1979 Surgeon General's Report on Smoking and Health, Defendants started planning their response to what they expected it to say. That response included establishing a task force to write and publish a rebuttal paper. Rather than have scientists evaluate the evidence or the Report's findings, once they were issued, the Tobacco Institute assigned a public relations staff member to research, write, and edit the rebuttal paper. Anne Duffin was given this responsibility, under the direction and guidance of the law firm Shook, Hardy & Bacon. Other public relations staff members re-read and edited chapters of the document as it was drafted. TIMN0073990-3992 at 3990 (US 21525).

343
  1. On January 10, 1979, one day prior to the release of the 1979 Report of the Surgeon

General on Smoking & Health, the Tobacco Institute published a document titled "Smoking and

Health 1964-1979: The Continuing Controversy." The Tobacco Institute prepared it for distribution to the news media and tailored it to respond to the content of the 1979 Report. The Tobacco Institute had obtained three draft chapters of the Surgeon General's Report. The rebuttal document was 166 pages long and represented a major effort on the part of the tobacco industry to pre-empt the impact of the1979 Surgeon General's Report. TIMN0084430-4594 (US 21534).

  1. Peter Lee, a long time industry consultant, characterized the Tobacco Institute's 1979 document "The Continuing Controversy" (referred to as "TA73") as "misleading." He wrote that the Tobacco Institute's counter publication did not appear to understand the idea of medical causation:

Discussion of the role of other factors can be particularly misleading when no discussion is made of relative magnitudes of effects. For example, heavy smokers are observed to have 20 or more times the lung cancer rates of non-smokers. Sure, this does not prove smoking causes lung cancer, but what it does mean, and TA73 never considers this, is that for any other factor to explain this association, it must have at least as strong an association with lung cancer as the observed association for smoking (and be highly correlated with the smoking habit).

TA73 seems ready to accept evidence implicating factors other than smoking in the aetiology of smoking without requiring the same stringent standards of proof that it requires to accept evidence implicating smoking. This is blatantly unscientific .

100214029-4047 at 4046 (US 21515) (emphasis in original).

344

  1. While he identified problems with the Tobacco Institute public relations document, Lee acknowledged that: "There is no doubt that [the Surgeon General's Report] is an impressive document." His memorandum dated February 9, 1979 also states: "The way in which the information was presented was on the whole sound, scientific and unemotive." He predicted that the Report would become "the Number One basic reference document for smoking and health researchers the world over." 100214029-4047 at 4030 (US 21515).

  2. The day before the 1979 Report was released, Defendants held a press conference, distributed press kits, and arranged for several television appearances by Horace Kornegay, President of the Tobacco Institute. A January 25, 1979 Tobacco Institute document memorializes remarks made at a TI Executive Committee meeting where the goal of the TI approach to the 1979 Surgeon General's Report was explained. One of the goals was: ". . . to encourage the press and public officials to apply a skeptical, or at least questioning, attitude to the substance of the report, and its source." TIMN0073990-3992 at 3991-3992 (US 21525); TIFL0403308-3312 at 3308 (US 62631); TIMN0055304-5330 (US 62816).

  3. Defendants' internal documents note that their public relations efforts received press coverage that equaled that received by the Report itself:

Most of us are aware that news coverage of the 1979 Surgeon General's Report achieved a balance, of sorts, with attention given to the Tobacco Institute's views both before and after the actual event.

TIMN0073993-4002 at 3994 (JD 011663) (emphasis in original).

  1. On January 11, 1979, for example, the News and Observer of Raleigh, North Carolina, quoted the Tobacco Institute as stating that "'many scientists' are becoming concerned that the focus on cigarette smoking diverts attention from other suspected health hazards."
345

  1. On January 17, 1979, the Tobacco Institute continued its aggressive public relations effort and issued a press release stating that the tobacco industry had spent $75 million on research over twenty years to learn whether smoking is harmful, but that "the case against cigarettes is not satisfactorily demonstrated." TIMN0074006-4006 (US 87985).

  2. Philip Morris's 1979 Annual Report similarly declared: "No conclusive clinical or medical proof of any cause-and-effect relationship between cigarette smoking and disease has yet been discovered." 2043819548-9607 at 9561 (US 20451*).

  3. While the public relations campaign continued, Defendants promised their commitment to disinterested research. In 1981, for instance, the Tobacco Institute published a document titled "On Smoking -- 21 questions and answers," written by the law firm Shook, Hardy & Bacon, which stated:

The tobacco industry has committed more than $91 million for independent research on smoking and health questions. . . . The tobacco industry remains committed to advancing scientific inquiry into the gaps in knowledge in the smoking controversy.

TIEX0007587-8106 at 7589 (US 87061).

  1. On December 31, 1981, the Tobacco Institute published a document titled "Tobacco Industry Research on Smoking and Health: A $104 Million Commitment" that again asserted: "questions of smoking and health are unresolved." 2046754709-4710 at 4710 (US 20474).

  2. In 1982, the Tobacco Institute launched a national series of advertisements on behalf of Defendants that addressed smoking and health issues, environmental tobacco smoke ("ETS"), public smoking restrictions, and youth smoking. These ads asked readers to keep an open mind on tobacco issues and "[w]eigh both sides before [they] take sides." Readers were encouraged to request a free copy of the Tobacco Institute's booklet "Answers to the Most Asked Questions about Cigarettes." 03028799-8809 at 8801 (US 20053).

346

  1. On February 18, 1982, "Smoking and Cancer -- A Scientific Perspective" was published by the Tobacco Institute in anticipation of the release of the 1982 Surgeon General's Report on Smoking and Health. The timing of the release was based on the Tobacco Institute's "axiom that it is more effective to take the initiative in situations involving a prospective negative news event." The press release accompanying the 104-page Tobacco Institute document stated that scientific research had not been able to establish a causal link between smoking and cancer. Copies were provided to correspondents and to various Members of Congress. 2025431644-1748 (US 20417); TIMN0245529-5529 (US 21340); 03762472-2472 (US 20063); TIMN0245530-5532 (US 21341); TIMN0245292-5292 (US 21339); 03762460-2461 (US 20062).

  2. A May 7, 1982 memorandum to RJR executives advised that the key point to be made in any discussion of the issue of smoking and health "is that it is a legitimate scientific controversy which continued unresolved." 502483421-3421 (US 20700).

  3. In 1983, in anticipation of the 1983 Surgeon General's Report, "The Health Consequences of Smoking -- Cardiovascular Disease," the Tobacco Institute published a document titled "Cigarette Smoking and Heart Disease." It stated that smoking was not an important risk factor for heart disease, and that "[w]hether cigarette smoking is causally related to heart disease is not scientifically established." The document was first distributed to Defendants, who were asked not to distribute the publication widely, but to use it for internal purposes only until the Report was released. Upon release, the Tobacco Institute distributed the document, as did the Defendants'

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European information clearinghouse, known as "INFOTAB" (discussed in detail at Section III(I)(6), supra). 2501112047-2098 at 2090, 2091 (US 20561); 2023274132-4133 (US 20386); 25010236453645 (US 20556).

  1. Sheldon Sommers, Scientific Director of CTR, testified before Congress in 1983 that

"cigarette smoking has not been scientifically established to be a cause of chronic diseases, such as cancer, cardiovascular disease, or emphysema." 503685073-5075 at 5073 (US 88734).

  1. In 1984, RJR placed an ad in numerous newspapers, including The New York Times, titled "Smoking and health: Some facts you've never heard about." This ad contained the statement:

You hear a lot these days about reports that link smoking to certain diseases. This evidence has led many scientists and other people to conclude that smoking causes these diseases.

But there is significant evidence on the other side of this issue. It is regularly ignored by the critics of smoking. And you rarely hear about it in the public media. But, it has helped persuade many scientists that the case against smoking is far from closed.

No one wants to know the real answers more than RJR. That is why we are providing major funding for scientific research. The funds are given at arm's length to independent scientists who are free to publish whatever they find. We don't know where such research may lead. But this much we can promise: when we find the answers, you'll hear about it.

504100135-0136 at 0136 (US 50882).

  1. In 1983, the Tobacco Institute published a pamphlet titled "Tobacco Industry

Research on Smoking and Health: A $120 Million Commitment." This pamphlet stated:

Since the first questions were raised about smoking as a possible health factor, the tobacco industry has believed that the American

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people deserve objective, scientific answers. The industry has committed itself to this task.

2045377870-7876 at 7871 (US 20460).

  1. In January 1984, an RJR press release declared: After all of this study, there are many scientists who believe there is no laboratory or clinical proof that cigarette smoke does -- or does not -- cause disease. We believe that reasonable people who examine all the evidence concerning smoking and disease would agree this is an open scientific controversy, not a closed case.

504638054-8056 at 8056 (US 20733).

  1. A month later, Edward Horrigan, Chairman of the Board at RJR, made the following comments as part of a panel discussion on the "Nightline" television program: (1) "It is not known whether cigarettes cause cancer"; (2) "Despite all the research to date, there has been no causal link established [between smoking and emphysema]"; and (3) "As a matter of fact, there are studies that while we are accused of being associated with heart disease, there have been studies conducted over 10 years that would say, again, that science is still puzzled over these forces." 502371212-1223 at 1216, 1217 (US 20699).

  2. RJR placed an ad in daily newspapers in 1984 titled, "Can we have an open debate about smoking?" In this ad, RJR claimed that "[s]tudies which conclude that smoking causes disease have regularly ignored significant evidence to the contrary," and that those "scientific findings come from research completely independent of the tobacco industry." It also states that "reasonable people who analyze it [the evidence] may come to see the issue not as a closed case, but as an open controversy." 513943434-3434 (US 50268).

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  1. That same year, 1984, the Tobacco Institute published a document titled "Cigarette Smoking and Chronic Obstructive Lung Diseases: The Major Gaps in Knowledge." It declared that Defendants did not agree with the conclusion of the Surgeon General's Reports that cigarette smoking had been established as a cause of chronic bronchitis and further asserted that a causal relationship between smoking and either chronic bronchitis or emphysema had not been established scientifically. TI13062142-2156 (US 62409).

  2. The Tobacco Institute published another report in 1984 titled "The Cigarette Controversy: Why More Research is Needed" as a formal statement of Defendants' position. It purported to review the testimony given at the 1982 and 1983 Congressional tobacco labeling hearings and stated:

Thirty nine scientists presented testimony against proposals in the bills. Their evidence was based on their own published research or their review of scientific literature. Each of them in his or her own right is a recognized scientist, and most have reached eminence in their area of expertise. *** The evidence presented by these men and women is summarized in the following pages. The scientists and their professional affiliations are listed in the Appendix. We publish this summary in the belief that the controversy about smoking must be resolved by scientific research and in the belief that informed discussion of the controversy is in the public interest. *** Fifteen witnesses explained why they consider the hypothesis that cigarette smoking causes lung cancer to be unproven.

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Witnesses also questioned the assertion that cigarette smoking causes emphysema in particular and chronic obstructive lung disease (COPD) in general.

The report failed to disclose that most of these scientific witnesses were tobacco industry consultants who were receiving funding from the lawyers' Special Account No. 4. TI12431636-1650 at 1638, 1642,1645 (US 62384).

  1. In July 1984, RJR mailed letters from employee Ann Griffin addressed to various children who had written to the company. In the letters, RJR claimed to be engaged in an effort to determine the harmful effects of smoking for the benefit of smokers, promised to support disinterested research into smoking and health, and claimed that research had not revealed any "conclusive" evidence that any element in cigarettes causes disease. 505465919-5919 (US 20741).

  2. Over time, RJR sent numerous letters to survivors of deceased smokers, denying any scientifically established links between smoking and disease. For instance, on August 18, 1988, RJR sent a letter to Anthony A. Christina (the widower of a lung cancer victim) in which the company denied that there was any causal link between smoking and disease. 515792869-2869 (US 2086).

  3. As of January, 2005, RJR Chairman Andrew Schindler was asked what his current answer to the Christina letter would be, and whether he would still refuse to admit that smoking causes disease. The most he would say was that, as of January, 2005, smoking poses "significant health risks and may contribute to certain diseases in some people." Schindler TT, 1/24/05, 10810:9-21.

  4. In January 1990, RJR's Public Relations Manager wrote in a letter to the principal of a grade school and one of the school's students:

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The tobacco industry is also concerned about the charges being made that smoking is responsible for so many serious diseases. Long before the present criticism began, the tobacco industry, in a sincere attempt to determine what harmful effects, if any, smoking might have on human health, established the Council for Tobacco Research -- USA. The industry has also supported research grants directed by the American Medical Association. Over the years the tobacco industry has given in excess of $162 million to independent research on the controversies surrounding smoking -- more than all the voluntary health associations combined. Despite all the research going on, the simple and unfortunate fact is that scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking.

508466199-6200 at 6199 (US 20813).

  1. Beginning in 1986, Brennan Dawson, spokesperson for the Tobacco Institute, reiterated in numerous television appearances the Tobacco Institute's public position that the links between smoking and disease were based on statistics, and that the causal relationship between smoking and disease had not yet been established. The Tobacco Institute's position that it had not been proven that smoking caused disease was not shared by a single public health organization during the entire time Dawson served as spokesperson for the organization. Dawson WD, 64:17-23,

76:8-11; Dawson TT, 1/3/04, 10102:5-24.

  1. During an August 17, 1986 appearance on the television program "Newsmaker

Sunday," Dawson stated, in response to a question about the Tobacco Institute's position on whether cigarette smoking is hazardous to the smoker, that "what we think . . . is that the facts are not clear.

The causal relationship has not been established." (no bates) (US 89296).

  1. In an April 8, 1987 appearance on the television show "Ask An Expert," when asked whether smoking causes lung cancer, Dawson stated, "[i]t's not a yes and it's not a no. . . . We're not going to tell anyone that smoking is good for them. We're not going to tell them that smoking is bad for them. It may be, it may not be." (no bates) (US 89292).
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  1. In a January 11, 1989 appearance on the television show "Good Morning America," Dawson stated that "all the links that have been established between smoking and certain diseases are based on statistics. What that means is that the causative [sic] relationship has not yet been established." This was twenty-five years after the Surgeon General announced a causal relationship between smoking and lung cancer. TIMN389474-9479 at 9475 (US 21286).

  2. Similarly, in an appearance on CNN's "Crossfire" on April 18, 1989, Dawson claimed:

Statistically there are associations. In terms of biological causation that hasn't been found which is why I came to the conclusion that smokers have to make up their own minds. We all know what the Surgeon General's warnings say. In fact, the vast majority of people believe it so I think we are intelligent enough as adults to make up our own minds.

(no bates) (US 89290).

  1. In a February 27, 1990 appearance on CBS's "Nightwatch," when asked whether she believed cigarette smoking "contributes to heart disease and cancer," Dawson refused to provide a straight answer, instead responding that "I think that that's an individual decision that each person needs to make for themself." CORTI1731-1738 at 1737 (US 87735).

  2. Dawson dismissed the overwhelming scientific evidence linking smoking and disease as merely "statistical." In a subsequent appearance on Crossfire on April 11, 1990, when asked whether smoking caused cancer, heart attacks, or strokes, Dawson again repeated: "The links that have been made between smoking and disease you just rattled off, for example, are statistical in nature. The industry sticks by that position." CORTI1828-1841 at 1831 (US 85150).

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  1. The Chief Executive Officer and Chairman of Philip Morris Companies, Geoffrey Bible, was the ultimate authority on what the content would be in public statements on smoking and health made by Philip Morris Companies subsidiaries, including Philip Morris USA.13 Bible PD, United States v. Philip Morris, 8/22/02, 83:9-84:9, 85:22-86:25.

  2. When a company makes a statement about the carcinogens in its product, that has much more impact upon the consuming public than if some third party does. Bible PT, Minnesota v. Philip Morris, 3/2/98, 5762:5-9.

  3. When Philip Morris made statements about smoking and health, the company intended the public -- including consumers and public health authorities -- to rely on them. Id. at 5718:7-14.

  4. When Brown & Williamson puts statements on its website, it intends that consumers should act in reliance upon the information contained in those statements. Ivey TT, 11/16/04,

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