Research Activities of TIRC/CTR

¶60. TIRC focused its energies and resources in two areas -- public relations and scientific research. First, it served as a sophisticated public relations unit for Defendants, especially in relation to growing public concern about the risks of smoking, by repeatedly attacking scientific studies that demonstrated the harms of cigarette smoke and insisting on the notion of an "open question" regarding cigarette smoking and health. Second, it developed a scientific research program that focused on basic processes of disease rather than evaluating the risks and harms associated with smoking -- the very subject that the industry had pledged to pursue through TIRC. Zahn PD, Richardson v. Philip Morris, 12/16/98, 318:16-319:1, 319:3, 325:3-12, 325:20-328:6, 336:15- 337:11, 561:21-562:7; Brandt WD, 57:13-23; 82:21-83:8, 127:17-19; Sommers PD, Cipollone v. Liggett, 10/2/86, 73:12-16, 73:20-22, 74:2, 74:8-15. From the outset, the dual functions of TIRC were intertwined, with the scientific program of TIRC always subservient to the goals of public relations. Brandt WD, 57:8-11.

¶61. Defendants' denials of the link between smoking and disease kept away many excellent researchers. In an October 1969 memorandum to Ross R. Millhiser of Philip Morris, Helmut Wakeham, Vice President and Director of Research for Philip Morris, expressed concern that

the efforts of the tobacco industry through CTR and the American Medical Association have failed to involve the best investigators. At the beginning of our support of smoking and health research, this failure may have been connected with our consistent denial of the statistics and our continued assertion that there is nothing to the cigarette causation hypothesis.

¶1001609594-9595 (US 21437).

¶62. A year later, Wakeham again discussed CTR's strategy of frequent and public denials, in a December 1970 memorandum to Joseph Cullman, Chairman of Philip Morris and Chairman of the Executive Committee of the Tobacco Institute:

It has been stated that CTR is a program to find out the "truth about smoking and health." What is truth to one is false to another. CTR and the Industry have publicly and frequently denied what others find as "truth." Let's face it. We are interested in evidence which we believe denies the allegation that cigarette smoking causes cancer.

¶1000255938-5940 (US 20085).

¶63. Defendants, through TIRC/CTR and its public relations strategy, were especially effective in identifying and supporting skeptics of the link between smoking and disease. Skeptics were invited to join the Scientific Advisory Board of the TIRC; they and their home institutions were provided with research grants from the TIRC. Their views were effectively solicited and broadcast widely by TIRC and the Tobacco Institute. Brandt WD, 80:12-18.

¶64. TIRC/CTR funded research through a variety of mechanisms: grants, contracts, CTR Special Staff Services, and CTR Special Projects. ARU1130828-0904 (US 86773). See Section III(E)(2), infra for detailed discussion of CTR Special Projects.

¶65. Virtually none of the research funded by TIRC/CTR centered on immediate questions relating to carcinogenesis and tobacco that could resolve the question of the harms brought about by cigarette smoking. Although some TIRC/CTR-funded researchers explored alternative hypotheses, TIRC/CTR did not typically pursue direct research on cigarettes and disease. Rather than addressing the constituents in tobacco smoke and their demonstrated effect on the human body, TIRC/CTR directed the majority of its resources to alternative theories of the origins of cancer centering on genetic factors and environmental risks. The major thrust of TIRC/CTR was to emphasize that human cancers were complex processes, difficult to study and difficult to understand, and to focus on the "need for more research." Brandt WD, 82:10-12, 85:12-86:3, 120:20-121:11. Although research funded by the SAB was irrelevant to the immediate questions associated with tobacco smoking and health, it did "create the appearance of [Defendants] devoting substantial resources to the problem without the risk of funding further 'contrary evidence.'" Harris WD, 104:23-105:7.

¶66. Two of CTR's Scientific Directors, Harmon McAllister and Sheldon Sommers, confirmed that the basic research funded by CTR was not immediately relevant to smoking and health. McAllister stated that they funded "basic medical research on the etiology of diseases that have been epidemiologically linked to smoking. That's our global [sic] -- that's the way we operate. Those are the sorts of applications we entertain." McAllister PD, Broin v. Philip Morris, 12/6/93, 46:2-16. Sommers stated that a CTR grant application's relevance to cigarette smoking and health was not the primary factor the SAB used in rating grant applications, but that "[s]cientific merit was of equal or of greater importance than relevance." Sommers PD, Cipollone v. Liggett, 10/2/86, 134:10-22, 135:4-6. Sommers was an SAB member from 1967 to 1989, SAB Chairman from 1970 to 1980, CTR Research Director from 1969 to 1972, and CTR Scientific Director from 1981 to 1987. Sommers PD, Galbraith v. Reynolds, 9/4/85, 10:12-25, 22:7-12, 23:22-24:16; Sommers PD, Rogers v. Reynolds, 12/17/85, 9:11-12, 13:14-18, 14:15-22; Sommers PD, Arch v. American, 7/14/97, 10:21-24, 11:9-24, 13:9-13, 16:14-21, 95:14-22; Sommers PD, Arch v. American, 7/15/97, 164:18- 22.

¶67. During a four-week visit to the United States in 1958, the three British scientists who met with representatives of TIRC and TIRC's SAB, as well as representatives of American, Liggett, and Philip Morris, reported that

Liggett & Meyers stayed out of TIRC originally because they doubted the sincerity of TIRC's motives and believed that the organization was too unwieldy to work efficiently. They remain convinced that their misgivings were justified. In their opinion TIRC has done little if anything constructive, the constantly reiterated 'not proven' statements in the face of mounting contrary evidence has thoroughly discredited TIRC, and the SAB of TIRC is supporting almost without exception projects which are not related directly to smoking and lung cancer.

¶TINY0003106-3116 (US 21369); 105408490-8499 at 8495 (US 21135), (US 76169); Brandt WD, 94:8-95:17.

¶68. After another visit to the United States in the fall of 1964, two different British scientists wrote in their report: "As we know, CTR supports only fundamental research of little relevance to present day problems." 1003119099-9135 (US 20152).

¶69. The Defendants knew that TIRC/CTR was funding research concerning cancer as a general issue, rather than the relationship of smoking to cancer. Brandt WD, 121:6-122:14. In January 1968, Addison Yeaman, B&W Vice President and General Counsel, wrote:

Review of SAB's current grants indicates that a very sizable number of them are for projects in what might be called 'basic research' without specific orientation to the problem of the relationship of the use of tobacco to human health.

¶00552837-2839 at 2837 (US 22968).

¶70. In addition, Defendants appreciated the delays associated with the basic research approach. Janet Brown, outside counsel for American, explained CTR's strategy of undertaking only basic research funding, as opposed to funding questions directly related to tobacco and health to Cy Hetsko, Vice President and General Counsel for American, and Addison Yeaman, Vice President and General Counsel for B&W, at a January 1968 meeting. The rationale was that basic research kept alive the Enterprise's open question argument on causation. Yeaman summarized Brown's position as:

First, we maintain the position that the existing evidence of a relationship between the use of tobacco and health is inadequate to justify research more closely related to tobacco, and

Secondly, that the study of the disease keeps constantly alive the argument that, until basic knowledge of the disease itself is further advanced, it is scientifically inappropriate to devote the major effort to tobacco.

¶68-262155-2157 (US 63527).

¶71. Geoffrey F. Todd, Executive Director of the Tobacco Research Council, a British organization equivalent to CTR (discussed further at Section III(I)(3), infra) made several visits to the United States, during which time he met with Defendants' representatives, attorneys, and scientists. After his 1973 trip, Todd wrote: "It was difficult to avoid the sad conclusion that C.T.R. has become a backwater of little significance in the world of smoking and health." 100226995-7033 (US 21134).

¶72. Throughout the existence of TIRC/CTR, representatives of the member companies and their attorneys were influential in its activities and research. Beginning in November 1971, CTR staff met semiannually with representatives of the member companies, usually the research directors and general counsel. The all-day meetings were designed to keep members of the Enterprise aware of the status of research funded by Defendants through TIRC/CTR. CTRMIN-MOM000016-0034 at 0018, 0022 (US 21170).

¶73. The Enterprise, through TIRC/CTR, sought out certain researchers and/or areas of research and solicited grant applications. Clarence Cook Little admitted that, seeing a line of work that showed promise, TIRC/CTR approached researchers and asked them, "Are any of you willing to try this if we provide your institution with money and you with help?" Little PD, Lartigue v. Reynolds, 10/5-6/60, 2721:21-2722:9, 2800:12-25; Lisanti PD, Small v. Lorillard, 3/31/98, 478:11- 480:25.

¶74. Sheldon Sommers, CTR Scientific Director, stated that CTR frequently initiated research and suggested particular research for which it would make grants available. He said, "Yes. I go out all the time looking for opportunities and new ideas and investigators in various fields of biomedicine." Sommers PD, Rogers v. R.J. Reynolds, 12/17/85, 50:19-52:15, 52:22-53:2, 53:7-18; Sommers PD, Cipollone v. Liggett, 10/3/86, 181:15-23, 182:12-183:10; Sommers PD, Small v. R.J. Reynolds, 10/8/97, 176:18-177:11; 85760397-0397 (US 85998).

¶75. One of the reasons that Paul Kotin decided to resign from the SAB was that he was disturbed by "the going out and requesting the submission of grants, of applications for grants. And I felt this circumvented the original foundation for the SAB, at least for my membership in the SAB." Kotin PD, Falise v. American , 7/6/00, 67:10-69:24. Kotin had served on the TIRC SAB from 1954 to 1965. Kotin PD, Falise v. American , 7/6/00, 9:9-15. Another reason for Kotin's resignation was reported by visitors from the United Kingdom's Tobacco Research Council in October 1964:

The recent [CTR] Annual Report by Dr. Little was severely criticised by the U.S. Surgeon General at a Washington press conference. Dr. Kotin was also highly critical of it and talks privately of resigning from the S.A.B. if another report of the same nature is going to be published next year.

¶512678484-8499 (US 51653); 1003119099-9135 (US 20152), (US 35649*); 105407261-7329 (JE 34739); see also Kotin PD, Falise v. American , 7/6/00, 72:19-73:14; Kotin PD, Falise v. American, 7/7/00, 190:2-192:17, 197:13-198:2.

¶76. Similarly, John Craighead, who was an SAB member for approximately one year, was also disturbed by the nature of the CTR research program. Craighead resigned from the SAB in part because he felt that the research did not address the fundamental issues related to tobacco and because of the involvement of CTR Chairman Addison Yeaman into the direction of the CTR research program. Craighead PD, Butler v. Philip Morris, 11/13/96, 47:8-17, 84:13-86:3, 87:10-21, 88:6-10, 93:8-17, 107:19-25; Sommers PD, Small v. R.J. Reynolds, 10/7/97, 10:24-11:12, 12:2- 13:19.

¶77. Sheldon Sommers acknowledged the influence and control wielded by CTR Chairmen and Presidents over the TIRC/CTR research program. All TIRC/CTR Presidents were from tobacco companies, Sommers PT, Cipollone v. Liggett, 4/19/88, 8736:7-12, and, until 1991, each and every TIRC/CTR Chairman was a retired tobacco company executive. McAllister WD, 18:15-16. In September 1981, Sommers wrote that "new Chairman Hobbs [from RJR] is more interested in basic research so relevance to smoking and health is no longer a crucial matter in funding." 85760397 (US 85998); Sommers PD, Cipollone v. Liggett, 10/2/86, 136:8-14. Sommers also testified that, after Addison Yeaman (from B&W) became CTR President and CEO, CTR began initiating more contracts because Yeaman believed that "the program was too diffuse and should be 'targeted.'" Sommers PD, Cipollone v. Liggett, 10/3/86, 297:16-298:2.

¶78. Following CTR's January 1975 annual meeting, the CTR staff was given more control over the grant and contract application process. According to the meeting minutes:

The Chairman stated that in the continued effort to bring maximum information to the Scientific Advisory Board preliminary investigation is being made by the Council's staff. . . . Following this, the proposals are then submitted for study by a subcommittee of the Board [SAB]. . . .

¶CTRMIN-MOM000070-0087 at 0071 (US 32618).