Selection and Approval of TIRC's Scientific Advisory Board Members

and Scientific Director 45. The first formal meeting of TIRC was held on January 18, 1954. At this first formal

¶meeting, a budget of $1,200,000 was approved; an agreement between TIRC and Hill & Knowlton was approved; the research program, calling for a Scientific Director and a Scientific Advisory Board ("SAB") was approved; a Law Committee was appointed; and the research directors of TIRC member companies were designated as the Industry Technical Committee ("ITC") (discussed further at Section III(F)(2), infra). CTR-TIRC-MIN000001-000252 at 0001-0004, 0018-0032 (JD 093292); ARU1130828-0904 (US 86773); TLT0901400-1410 (US 88187); JH000395-0400 (US 21178).

The Law Committee was composed of Chairman George Whiteside of Chadbourne, Parke, Whiteside, Wolf & Brophy; John Vance Hewitt of Conboy, Hewitt, O'Brien & Boardman; Leighton Coleman of Davis, Polk, Wardwell, Sunderland & Kiendl; F.R. Wadlinger of Foulk, Porter & Wadlinger; and Freeman Daniels of Perkins, Daniels & Perkins. This committee drafted the TIRC bylaws. CTR-TIRC-MIN000001-000252 at 0001, 0006,²¹²¹ The terms "charcoal" or "activated carbon" were often used interchangeably during the trial to describe these filters. See, e.g., Townsend TT, 3/8/05, 14675:25-14676:16. For the sake of simplicity, the Court uses the term "charcoal" to refer to filters containing activated carbon material. -670- (JD 093292); CTRMN039046-9106 at 9069 (JD 092825).
On January 7, 1954, the ITC held an informal meeting at which its members discussed qualifications for a Scientific Research Director for TIRC and efforts to find and retain a suitable scientist. The research directors were H.R. Hanmer of American; Irwin W. Tucker of B&W; H.B. Parmele of Lorillard; Robert N. DuPuis of Philip Morris; Grant Clarke of Reynolds; Hugh Cullman of Benson & Hedges; Clinton Baber of Larus & Brother; C.S. Stephano of Stephano Brothers; and Ward B. Bennett of United States Tobacco. CTRMN039046-9106 at 9070, 9076 (JD 092825);

¶TLT0901400-1410 (US 88187); CTRMIN-ITC000009-0011 (JD 095519); JH000395-0400 (US

At the January 7, 1954 meeting, the ITC members agreed that the TIRC Research Director should be a medical doctor, recognized in cancer research, and with experience in chemistry. The ITC nominated persons for the position of TIRC Research Director, and a subcommittee of the ITC, headed by Grant Clarke, Research Director for Reynolds, was appointed to process and screen the list of nominees. TLT0901400-1410 at 1404 (US 88187); JH000395-0400 at 0399 (US 21178).
At the March 15, 1954 meeting of TIRC, Chairman Paul Hahn of American, outlined the difficulties encountered in obtaining a Scientific Research Director, and suggested that SAB members be appointed before the Research Director so that they could then assist in selecting a Research Director. TLT0902041-2064 at 2043 (US 88360). The ITC was directed to draw up a suggested list of names for the SAB with the assistance of Hill & Knowlton. TIRC appointed a subcommittee to select scientists to be invited to become members of SAB. CTR-TIRC- MIN000001-000252 at 0005-0006 (JD 093292); TLT0903093-3094 (US 88363); USX6390001-0400 at 0011-0012 (US 89555) (CTR Response to Request for Admission No. 111); ARU1130828-0904 at 0884-0890 (US 86773) (CTR Response to Interrogatory No. 12).
The ITC, public relations counsel Hill & Knowlton, and the Law Committee were actively involved in searching for, interviewing, and selecting the scientists appointed to the first SAB. TLT0902041-2064 at 2043 (US 88360); TLT0903093-3094 (US 88363). The ITC screened the candidates being considered for membership on the SAB. 681879254-9715 at 9649 (US 21020).

Letters were sent to nine scientists inviting them to become members of the SAB, and acceptances were eventually obtained from seven. Their specialities included pathology, pharmacology, surgery, and statistics. The two scientists who did not accept were connected with the National Cancer Institute and believed that, as government employees, they should not, as a matter of policy, accept the invitation. CTR-TIRC-MIN000001-0252 at 0021 (JD 093292); CTRMN039046-9106 at 9051-9052 (JD 092825); 508775311-5311 (JD 093893); ARU1130828- 0904 (US 86773).
The first meeting of the SAB was held on April 26, 1954. The SAB members chose as their Chairman, Clarence Cook Little, a well-known cancer researcher and geneticist of high integrity and national repute. At the second meeting of the SAB, Little was selected as Scientific Director on a part-time basis with an assistant who would serve on a full-time basis. In November 1954, Robert Hockett was chosen as Associate Scientific Director. Little served as SAB Chairman from 1954 to 1957 and as TIRC/CTR Scientific Director from 1954 to 1971. Little PD, Lartigue v. Reynolds, 10/5/60, 2713:20-21, 2715:4-12, 2721:9-11; Little PT, Zagurski v. American, 6/7/67, 652:21-653:2, 676:6-18. Following Little, the Scientific Directors were William Gardner (1973-1981), Sheldon Sommers (1981-1987), James Glenn (1988-1990), and Harmon McAllister (1991-1999). CTR-TIRC-MIN000001-0252 at 0022 (JD 093292); TLT0902041-2064 (US 88360); TLT0903105-3108 at 3105 (US 88366); ARU1130828-0904 (US 86773); CTRMN004928-4929 (US 85995); 11310050-0053 (JD 090066).
In a November 27, 1963 memorandum, Clarence Cook Little described the Enterprise's criteria for selecting the SAB members. Little wrote:

In the selection of a Scientific Advisory Board and in the acceptance of the nomination by that Board of a Scientific Director, it was clearly shown that the attitude of the TIRC was to pick scientists interested broadly in the origin and nature of the diseases implicated and in the evaluation of smoking as a possible factor, not as a proven one.

¶70003601-3602 at 2601 (US 85993) (emphasis in original).

Clarence Cook Little's personal commitments and assumptions about cancer causality made him an ideal proponent of the industry's goal of maintaining a "controversy" rather than scientifically resolving the questions regarding smoking and health. Brandt WD, 86:10-18. Little explained at the press conference announcing his appointment that: "I am ultraconservative about cause and effect relationships." CW01054843-4879 at 4877 (US 20278). However, at that same press conference, Little made many claims about the health benefits of cigarette use:

It is very well-known, for example, that tobacco has relaxed a great many people. It is a very good therapy for a great many nervous people.

¶CW01054843-4879 at 4845 (US 20278).

Little repeatedly centered attention on the so-called "constitutional hypothesis"; other environmental risks; and the need for more research into the basic etiology of the diseases associated with smoking. Brandt WD, 86:19-22; McAllister WD, 123:18-22; Little PT, Zagurski v. American, 6/7/67, 661:9-663:9, 665:7-666:20. He believed that "the causation of lung cancer was not known," that it was a complicated and unsolved problem with many factors involved, such as nutrition, heredity, the mental type of the individual, present or former or existing infection, air pollution, and radiation. This statement of his beliefs became known as the "constitutional hypothesis." Little PD, Lartigue v. Reynolds, 10/5/60, 2729:1-2730:15, 2735:11-2736:2; CTRMN005534-5541 (US 21156); (no bates) (US 21224); (no bates) (US 21233); (no bates) (US 21834) . He argued that "no positive evidence has been advanced by anybody who believes in the tobacco guilt theory that has made me change my mind." Little PD, Lartigue v. Reynolds, 10/5/60, 2782:10-16. Under Little's leadership, the SAB funded studies on vitamins, influenza, twins, and viruses, but not on carcinogenic agents in tobacco smoke because: "we believe that no such agents have been found which are carcinogenic to men," id. at 2755:6-18; "[w]e don't believe they are there and a will-of-the-wisp hunt for something that hasn't yet been shown is a waste of money," id. at 2761:14-22; "[t]here are no carcinogenic agents in tobacco tar that have been proven to cause cancer in man. . . . And I say again that to transfer from the skin of a mouse to the lung of a man is not science," id. at 2762:23-2763:13.

The SAB met regularly from 1954 until at least 1997 to review, approve, and renew grant applications and contracts. Those who attended the SAB meetings, in addition to SAB members, were the ITC Chairman, TIRC/CTR staff members, public relations counsel for TIRC/CTR, and (at times) Defendants' attorneys and scientific guests. Zahn PD, Cipollone v. Liggett, 12/16/1986, 106:3-107:1; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 78:3-79:5, 80:2-21; Zahn PD, Richardson v. Philip Morris, 12/1/1998, 96:10-16; CTRMIN-SAB000001-1061, 70011735-1757 (JD 090960); CTRMIN-SAB000001-1061 (US 21146); CTRMIN-SAB000070- 0074 (US 80382); CTRMIN-SAB000320-0325 (US 80429); CTRMIN-SAB000326-0330 (US 80430); CTRMIN-SAB000337-0341 (US 80432); CTRMIN-SAB000342-0350 (US 80433); CTRMN004320-4323 (US 21148); CTRMN004539-4544 (US 21151); CTRMIN048368-8369 (US 85996); ZN7912-7921 (US 64789); SM0120005-0009 (US 65442); 955011516-1520 (US 32362); TLT0903247-3251 (US 87521); TLT0903189-3193 (US 87522); TLT0903145-3148 (US 87523); TLT0903132-3135 (US 87524); TLT0903116-3117 (US 87525); TLT0903181-3185 (US 87526);

¶TLT0903177-3180 (US 87527); TLT0903166-3169 (US 87528); TLT0903208-3211 (US 88367); TLT0903202-3207 (US 88368); TLT0903197-3201 (US 88369).

Many meetings of the SAB had no written record. According to a confidential report on the December 9, 1981 meeting of the SAB, the following policy regarding meetings was reaffirmed: "to conduct informal 'in house' conferences on specific subjects 'off the record' held without minutes or publication, but not to sponsor open meetings with a resultant publication." This policy was in effect at least ten years prior to the 1981 meeting and continued into the late 1990s. CTRMIN-SAB 000611-0612 (US 80480); Lisanti PD, Richardson v. Philip Morris, 12/8/98, 112:16- 21, 114:1-116:18.
Contrary to Defendants' assertions that the members of the SAB were disinterested parties who received no monetary compensation from the tobacco companies or from TIRC/CTR, sixteen members of the SAB (out of forty-three) were awarded over $5 million in grants-in-aid funding between 1954 and 1991. Sommers PD, Cipollone v. Liggett, 10/2/86, 130:4-131:1, 132:16- 19; McAllister PD, United States v. Philip Morris, 5/23/02, 250:15-253:11; Zahn PD, Cipollone v. Liggett, 12/18/1986, 388:3-7; Lisanti PD, Engle v. Reynolds, 8/13/97, 111:23-112:3; McAllister WD, 76:16-18.
Defendants, through the CTR's Board of Directors, exercised control over the CTR research grant program throughout its existence by approving the total amount of funding for the grant program and, after the first few years, by selecting the CTR Scientific Directors and their staff. Zahn PD, Richardson v. Philip Morris, 12/16/98, 459:13-460:9; McAllister PD, United States v. Philip Morris, 5/23/02, 56:5-57:18; USX6390001-0400 at 0012 (US 89555); CTRMN003816-3835 (US 21147). In fact, Helmut Wakeham of Philip Morris complained to David Felton, a BATCo scientist, that finding a Scientific Director to succeed Little after he resigned "was in the hands of the lawyers committee" and the Tobacco Institute without consultation with CTR or company scientists. 10315968-5971 (US 26378); (US 26379); (US 63573).