Cornered

by Peter Pringle

  In a seven-page letter, dated August 20, 1970, Hardy advised that statements made by some employees in scientific reports and at research conferences “constitute a real threat” to the continued success of the industry’s defense of tobacco litigation. “The effect of testimony by employees or documentary evidence from the files of either BAT or B&W which seems to acknowledge or tacitly admit that cigarettes cause cancer or other disease would likely be fatal to the defense of either or both companies in a smoking and health case,” he wrote. Such an admission would give a plaintiff’s case a “posture of strength and danger never before approached in cigarette litigation,” he said. “It could even be the basis for an assessment of punitive damages if it were deemed to indicate a reckless disregard for the health of the smoker. Certainly, such evidence would make B&W the most vulnerable cigarette manufacturer in the United States to smoking and health suits.”

  Hardy was, in effect, impugning the integrity and company loyalty of the research scientists in BAT’s labs in England who had become convinced that smoking did cause cancer and heart disease. He wrote, “We, of course, know that the position of BAT, as well as B&W, is that disease causation by smoking is still very much an open question. Cigarettes have not been proved to cause any human disease. Thus, any statement by responsible and informed employees subject to a contrary interpretation could only result from carelessness. Therefore, employees in both companies should be informed of the possible consequences of careless statements on this subject.”

  Of course, Hardy must have known from reading the reports that for a decade at least BAT’s scientists had believed smoking causes cancer. But he wanted them to keep what they knew strictly to themselves. “Careless statements,” in Hardy’s view, included the mere mention of research into cancer or a “safer product,” because they implied cigarettes then on sale were unsafe. For example, he complained about the following phrases and sentences from the minutes of a research conference held in Kronberg, Germany, in 1969: “a mouse-skin safer cigarette is a worthwhile objective”; “there is a possibility that the experiments taking place at [the BAT research facility at Southampton, England] with the membrane of the chicken embryo might be showing genuine carcinogenic effects in days”; “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.” Hardy also deleted any reference to the phrase “biologically active,” which was used to mean cancer-forming.

  Reviewing another BAT conference, this one held in St. Ives, in England, Hardy objected to statements referring to “the search for a safe cigarette” and a “healthy cigarette” that were, in Hardy’s words, “most damaging.” He wanted all such statements, opinions, and references deleted because they threatened his defense strategy in court. “Of course, we would make every effort to ‘explain’ such statements if we were confronted with them during a trial, but I seriously doubt that the average juror would follow or accept the subtle distinctions and explanations that we would be forced to urge.”

  To protect BAT and Brown & Williamson against such legal traps, Hardy even wanted to tear up the 1969 R&D agreement between BAT and B&W in which the two companies shared the costs of research being done in England by BAT. In the U.S. the tobacco companies had apparently been careful not to have any such formal agreements about potentially embarrassing research. In fact, there had been a “gentlemen’s agreement” among the manufacturers to suppress independent research on the issue of smoking and health. This agreement was mentioned in a 1968 internal Philip Morris draft memo, which said, “We have reason to believe that in spite of the gentlemans [sic] agreement from the Tobacco Industry in previous years that at least some of the major companies have been increasing biological studies within their own facilities.” BAT was one such company and that posed a problem, according to Hardy. A “carefully framed” pretrial discovery motion “might, in fact, be able to force production of certain documents from B&W which are presently in the custody of BAT only.”

  Hardy also advised B&W to protect itself from what he called “actual knowledge on the part of the defendant that smoking is generally dangerous to health, that certain ingredients are dangerous or should be removed, or that smoking causes a particular disease.” In other words, the industry could not defend itself against antitobacco research if its own scientists had some of the same views on their product. For example, the industry could not maintain its position that mouse-skin painting was not valid for humans when a company report from Germany stated, as it did, that mouse-skin painting was the “ultimate court of appeal on carcinogenic effects.”

  * * *

  HARDY’S ADVICE was not exclusive to B&W; he advised the industry as a whole and over the next two decades, company lawyers moved to monitor and censor internal scientific projects, eliminating those deemed unfavorable. The idea was to protect company files that could be used against the industry in court. Once they had chosen the approach suggested by Dave Hardy, there was no room for compromise. As insurance against sensitive research documents slipping through and then being uncovered by plaintiffs, Brown & Williamson attorneys took two basic precautions. They labeled sensitive documents “privileged” or “work product” so they could be kept secret.

  The attorney-client privilege rule is a mainstay of American jurisprudence. Essentially, it allows any communication between an attorney and his or her client to remain confidential and outside the scope of pretrial discovery. An attorney cannot be compelled to testify about communications with a client, unless the client consents. The work-product rule protects the work of an attorney in anticipation of litigation.

  There was considerable discussion at B&W about which type of documents came clearly under the rules. For example, the B&W lawyers acknowledged that the 1969 research cost-sharing agreement between B&W and BAT probably “contradict the position that you were acquiring the reports for purposes of litigation.” To clarify the situation in the company’s favor, the B&W lawyers recommended that one company lawyer be assigned to monitor all scientific reports.

  A decade later, by the mid-eighties, work at BAT’s Harrogate labs in Britain had come to an end and BAT-sponsored research had stopped at other labs in Europe. But the lawyers were still worried about leaks.

  Then, in 1984, Dr. L. C. F. Blackman, BAT’s executive director for research and development, wrote a thirty-three-page booklet entitled, “The Controversy on Smoking and Health—Some Facts and Anomalies.” It was intended to familarize company employees with reports that are “inconsistent with the view that smoking has been proven to be a cause of disease.” Even though it only contained views favorable to the industry, B&W’s corporate counsel, J. Kendrick Wells, considered it far too risky to disseminate and made forty-five line-by-line changes and deletions. He even objected to titles of sections. For example, “Background to Medical Dilemma” was changed to “Background to Medical Concern.” Scientists who seemed to Blackman worthy of inclusion because they supported the industry’s contention of a “controversy” in one paper were deleted by Wells because they had published work elsewhere that was not supportive.

  Blackman had quoted British researchers Richard Doll and Richard Peto as saying that epidemiological studies linking smoking to lung cancer and heart disease “does not necessarily imply that smoking caused them. The relation may have been secondary in that smoking was associated with some other factor, such as alcohol consumption or a feature of the personality.…” Although this was taken out of the context of the greater part of their work, it was certainly a good sound bite for the industry. Wells objected because Doll and Peto were the main British proponents of the causal link. “Any reference to Doll must be crafted carefully because he is a dedicated advocate of the causal hypothesis,” wrote Wells.

  Certain words were banned. Wells did not want tobacco referred to as a drug, nor would he allow mention of nicotine being “addictive,”
or even a reference to the pharmacological effects of nicotine. Donald Gould, writing in the New Scientist magazine in 1975, had said, “Cigarettes calm, they comfort, they give pleasure, they act as a kind of stockade, a visible barrier between the naked individual and a hostile world.” It sounded good to Blackman, but Wells pointed out that elsewhere in the article Gould identifies cigarettes as a drug.

  In another reference that Blackman thought would serve the industry well, Dr. W. S. Cain of the Yale University School of Medicine wrote in 1979 that smoking produces relaxation and reduces anxiety, enhancing the power to concentrate, self-confidence, and social facilitation. “Without the benefits of such features, most smokers would never establish the habit in the first place.” Delete, demanded Wells. “The article identifies short-term and longer term pharmacological and physiological factors as important in the derivation of ‘habitual cigarette smoking.’”

  * * *

  WELLS WAS CERTAINLY doing his best to protect the company’s internal research papers from the prying eyes of plaintiffs’ lawyers. The process generated much debate within the company. In a 1979 memo, Wells discussed how research material from BAT’s laboratories in Southampton should be generally available to B&W’s researchers but still be considered as “privileged” and therefore protected from discovery in a lawsuit. The law is quite clear: “work product” documents are only those prepared in anticipation of a lawsuit, not those prepared in the general course of scientific experiments and studies. This is how Mr. Wells suggested the company might overcome the problem:

  “Continued Law Department control is essential for the best argument for privilege. At the same time, control should be exercised with flexibility to allow access of the R&D staff to the documents. The general policy should be clearly stated that access to the documents and storage of the documents is granted only upon approval of request.” Wells suggested the documents should be categorized for their sensitivity and placed in a secure storage area. No more than abstracts of the less sensitive papers should be circulated—and then only to a list approved by the law department. In other words, the law department had total control over which documents scientists were allowed to see.

  Evidently this procedure became too burdensome: most documents from Britain were not sensitive and clogged up the system in the law department, so Wells modified the plan. He suggested that all reports, instead of going to the law department, should be filtered through B&W’s International and External Services Department. This office would, in effect, become B&W’s “agent” for the acquisition of scientific material “in anticipation of litigation.” The department would “separate the reports which were relevant to smoking and health, or otherwise sensitive, for special handling.”

  The issue of how to deal with sensitive research continued to be a problem. Of course, Wells realized that he could not shut down the flow of reports or plug all the leaks. It would help, he noted caustically, if BAT would stop producing research reports in Canada, Germany, and Brazil. A raft of studies on nicotine and “biological” (i.e., possibly carcinogenic) constituents of smoke were due to start in those countries. Whatever rules were put in place, preventing a plaintiff’s access to in-house reports was bound to be a hit or miss affair. Even the lawyers acknowledged that a Merrell Williams was bound to emerge one day. A 1985 company memo entitled “B&W’s Public Issue Environment,” noted that the company “must assume that its documents, existing and created during the planning period, referring to marketing or smoking and health will be obtained by the plaintiffs’ lawyers … and leaked to the press.”

  Wells also proposed in 1985 that certain medical research should be stored separately from other archives, and, perhaps, even shipped back to England. Included were the results of Project Janus, a series of experiments on the biological effects of cigarette smoke that had isolated some of the carcinogenic substances. Wells wrote, “I suggested … that this was part of an effort to remove deadwood from the files and that [no one] should make any notes, memos or lists.” It is not known if any of the “deadwood” files were actually removed and sent to England.

  Later, in a 1986 memo, Wells warned against B&W receiving reports in a form that “could serve as road maps for a plaintiff’s lawyer.” He wanted reports limited to “good science,” that is, science that did not embarrass the industry, and to “information [that] is useful in the United States market.” He wrote, “Our market is a ‘tar’ and nicotine market, and information pertaining to other constituent delivery levels and biological effects would not be helpful.” In other words, Wells wanted to protect B&W against receiving “bad” reports about the “biological activity” or cancer-forming properties of other compounds in tobacco smoke.

  * * *

  PREVENTING THE DISSEMINATION of “careless” comments from British scientists who didn’t have to worry about lawsuits was one thing: funding research projects in the United States that might come to the same unwanted and legally risky conclusions was quite another. After the 1964 Surgeon General’s report, smoking and health research was still carried out in the United States by tobacco companies in their own laboratories and some research was conducted under contract with outside firms through the Council for Tobacco Research. But the research was very strictly controlled by lawyers. Topics were chosen specifically to perpetuate the controversy about health effects; biological experiments to test for potential carcinogens in smoke were avoided. The lawyers created a cadre of researchers who could be guaranteed to produce papers useful to a legal defense. These were called “Special Projects” and they were chosen and administered by the Committee of Counsel’s ad hoc group of outside lawyers chaired by David Hardy. The group had six members, each representing a different tobacco company.

  One of the lawyers was Ed Jacob of the New York law firm of Jacob, Medinger. Jacob, who represented R. J. Reynolds and Brown & Williamson, described how the system was set up. “When we started the CTR special projects [in the mid-sixties] the idea was that the scientific director of CTR [Dr. Little] would review the project. If he liked it, it was a CTR special project. If he did not like it then it became a lawyers’ special project.” But as time passed the lawyers took greater control, and initiated their own projects without consulting the CTR.

  Several of the special projects were designed to bolster Dr. Little’s “constitutional hypothesis.” Others paid for researchers to go on trips or write papers supporting the industry’s view. Individuals were paid from $2,500 to $4,000 to prepare these statements, which favored the tobacco industry’s position. Some researchers were paid for “continuing consultancies,” which averaged from $500 to $1,500 per month and ran as high as $62,400 for a two-year project.

  Under this new regime, the lawyers ruled. In December 1976, the Addiction Research Foundation, directed by Stanford University pharmacologist Avram Goldstein, asked Dr. Little’s CTR for $400,000 to construct a new research facility so that he could expand his work on opiate addiction to include nicotine addiction. The CTR replied that it was not in a position to provide funds for laboratory construction but would consider proposals “specifically directed to tobacco use and health.” The foundation then applied directly to the individual companies, but they had been alerted by lawyers at Shook, Hardy, and Goldstein was again turned down. Finally, the foundation applied to Shook, Hardy, arguing that the tobacco industry should be interested because its work could lead to a “safe cigarette,” one that “could create the nicotine effect that smokers enjoy without the toxicity of nicotine.” The foundation even offered to delete the word “addiction” from their project, if that was what had “turned off” the tobacco companies. Still, the application was rejected; funds were not available for anyone who believed, as Goldstein’s foundation clearly did, that nicotine was addictive. This policy was made clear in an internal Tobacco Institute memo that stated, “[The] foundation actually assumes tobacco (nicotine) is addictive and costs the US citizen $42 billion a year! [They] also believe tobacco causes
300,000 premature deaths each year. And [they] wonder if this is why we might not be interested.”

  Among the recipients of special account funds in the U.S. was Carl Seltzer, a professor of public health at Harvard University. He worked on Dr. Little’s “constitutional hypothesis” and other topics countering the evidence that smoking causes heart disease. When Seltzer retired in 1976, he continued to work on “constitution and disease” at Harvard’s Peabody Museum of natural history and was awarded grants of more than $750,000 until 1990. Seltzer went on lecture tours for the Tobacco Institute, the industry PR arm in Washington, D.C. One tour to Australia and New Zealand was rated a “great success.” His lectures and radio interviews on that tour spawned headlines such as “Smokers—Take Heart,” “Doctor Slams Link Between Smoking and Heart Disease,” and “Smoking Does Not Cause Heart Disease.”

  Lawyers like Ed Jacob who ran the special accounts were always on the lookout for research to fund in other countries, particularly Britain. One recipient, Britain’s most controversial psychologist, Hans Eysenck, was one of the founding members of the “constitutional hypothesis” so beloved by Dr. Little. At the end of the 1960s, Eysenck had published a book, Smoking, Health and Personality, in which he laid out his theory that smokers were essentially born, not made. There were smoking types, mostly extroverts, and nonsmoking types, mostly introverts. The tobacco industry loved this idea and heaped funds on Eysenck, who worked at London University’s Institute of Psychiatry. According to the Merrell Williams documents, Eysenck received more than £70,000 from Special Account No. 4 and nearly £900,000 in research grants between 1977 and 1989. The institute itself received more than two million pounds sterling from tobacco industry sources over the same period.