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Plaintiff's Memorandum In Support Of Its Motion To Compel Disclosure
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION JUDGE: DAVID G. FOLSOM MAGISTRATE: JUDGE WENDELL C. RADFORD JURY TRIAL DEMANDED THE STATE OF TEXAS, VS. THE AMERICAN TOBACCO COMPANY; PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS MOTION
TO COMPEL DISCLOSURE Plaintiff, The State of Texas, files this Memorandum in Support of Its Motion to Compel Disclosure and renews it request that the Court compel Defendants to comply with the mandatory disclosure requirements of this Court's Civil Justice Expense and Delay Reduction Plan ("the Plan"). 1. Introduction The purpose of this Memorandum is to educate this Honorable Court, to the extent it is not common knowledge, about the tobacco industry's long history of discovery and other litigation abuses in the hope that this Court will take all necessary steps to ensure that continued abuses do not occur in this Court. By way of background, the tobacco industry has been involved in litigation over the use of its deadly products for over 40 years. The so-called "First Wave" began in the 1950s, following a December 1952 Reader's Digest edition that summarized the major studies of smoking related diseases of the day. During the First Wave, only a handful of cases made it to trial and there were no plaintiff victories. The last case, Pritchard v. Liggett & Myers, was abandoned by the plaintiff for lack of resources. The "Second Wave" is said to have begun circa 1983 and ended shortly thereafter, in 1988. This wave was generated by the evolution of product liability principles and the adoption of "pure" comparative fault schemes in strict liability cases. The Galbraith and Cippolone cases were filed in 1983. Galbraith ended with a defense verdict, due probably in no small part to the lack of industry documents. Cippolone was abandoned for lack of resources due to the tobacco industry's economic warfare. The "Third Wave" is the present. It is characterized by the state Medicaid actions, the first of which was filed by the State of Mississippi on May 23, 1994. The State of Mississippi's filing was followed by 14 other states, the latest being the State of New Jersey which filed September 10, 1996. The Third Wave is distinctive because of the disclosure of many, but not all, damaging internal company documents and the emergence of so-called "whistle blowers" revealing inside knowledge. Through the efforts of courageous former employees of the tobacco industry, important documents and information have come to light about the industry's knowledge of its products' morbidity and mortality, knowledge of addictiveness, manipulation of nicotine levels and the blatant, unabashed targeting of children. If history is our teacher, the tobacco industry will obstruct at every turn the "just, speedy, and inexpensive determination of" this claim. The industry will attempt this by refusing to produce essential documents that bear significantly on the litigation, concealing relevant evidence, insisting on unmerited, global confidentiality and protective orders designed to thwart Rule 1, asserting frivolous and unwarranted objections and privileges, requesting that this Court revisit or "clarify" matters already decided, and using many other of its past "scorched earth" tactics. 2. The Tobacco Industry As "King of Concealment" Nothing tells us more forcefully that the tobacco industry has long concealed internal company documents from plaintiffs than the relatively recent disclosure of the "Brown & Williamson Collection" from "Mr. Butts" and the Philip Morris documents from Dr. Merrill Williams. For these documents and other information not to have been produced in the many years of litigation, without the industry being guilty of discovery abuse, necessarily depends on the improbable suggestion that these documents were never requested. The State of Texas refuses to accept this improbable premise, especially in light of recent disclosures. As a result, Plaintiff respectfully requests that this Court be aware of the dilatory and devious tactics of the tobacco industry to obstruct the quick and fair resolution of this matter. From these recent disclosures, however, we find concrete evidence of industry concealment of truthful and damaging documents. The most recent example is a Philip Morris handwritten note discussing the routing of certain documents to Inbifo, the company's German research facility. The note was produced from the files of Philip Morris' Director of Research's files, Thomas S. Osdene, in the State of Minnesota's claim against the tobacco industry. The Wall Street Journal, September 18, 1996, at B11, col. 1 (attached as Exhibit 1). The note states in part:
The memo also states:
Another famous example is the "deadwood" memorandum (attached as Exhibit 2). The deadwood memorandum was written by Brown & Williamson General Counsel J. Kendrick Wells and dated January 17, 1895. Referencing "document retention" of "engineering and scientific reports," Wells wrote about how "biological studies" and mouse skin painting studies should be considered "deadwood", shipped overseas and that no one should make any notes about the documents: I explained [to Earl Kohnhorst] I had marked certain of the document references with an X. The X designated documents which I suggested were deadwood in the behavioral and biological studies area. I said that the "B" series are "Janus" [mouse skin painting] series studies and should also be considered as deadwood. . . . I suggested that Earl have the documents indicated on
my list pulled, put into boxes and stored in the large basement storage
areas. I said that we would consider shipping the documents to BAT [in
England] when we had completed segregating them. I suggested that Earl
tell his people that this was part of an effort to remove deadwood from
the files and that neither he nor anyone else in the department should
make any notes, memos or lists. Memorandum at 2 (emphasis added). In 1986, Mr. Wells again counsels that certain scientific documents not be sent to B&W because they could "serve as road maps for a plaintiff's lawyer." In his words: Pursuant to Earl Kohnhorst's request, I met with Earl,
Gil Esterle and David Gordon to discuss whether B&W should receive
reports from certain projects to be done at the laboratories of affiliated
companies. I counselled (sic) Gil and David that we should approach
these projects on the basis of whether the reports are limited to the information
from good science and whether the information is useful in the United States
market. Our market is a "tar" and nicotine market, and information
pertaining to other constituent delivery levels and biological effects
will not be helpful. . . . While the brevity of the reports will reduce
the potential for receipt by B&W of information useful to a plaintiff,
disadvantageous information could be included and the reports could serve
as road maps for a plaintiff's lawyer. Wells Memorandum at 1 (attached as Exhibit 3; emphasis
added). Wells wrote further, regarding "Project 453"
dealing with Nicotine Within the Smoker": [I]f the reports include discussions of pharmacological
effects of nicotine, the information will not be interesting and
would be helpful to the plaintiff. RD&E will
begin receiving reports from this activity and be prepared to inform
BAT to cease sending the data to B&W if the science is not interesting.
Wells Memorandum at 2 (emphasis added). Also on point is the reference to scientific research by Dr. R.A. Sanford, Vice-president of Research for B&W dated August 18, 1980 (attached as Exhibit 4):
Letter with questionnaire, Dr. R. A. Sanford to Dr. Alan Heard, dated August 18, 1980 (emphasis added). Apparently, B&W had more information on the "biological" side of smoking than it needed or wanted. Another telling letter which the author never intended to see the light of day refers to concealing information known to be harmful to the tobacco industry and helpful to plaintiffs. The letter is from David R. Hardy to DeBaun Bryant, General Counsel for Brown & Williamson and dated August 20, 1970 (attached as Exhibit 5). Of course, Mr. Hardy is a principal of Shook, Hardy & Bacon. While Shook, Hardy was then advising BAT, it is presently counsel for the United States Tobacco Company in the case before this Court. Hardy's letter discusses BAT's involvement in future litigation in the United States and expresses concern about documents in BAT's possession that would pose problems in future cases. Mr. Hardy wrote: It would, no doubt, be virtually impossible to determine
to what extent statements have been made which would be damaging to defendant's
position in a smoking and health case, but I have seen sufficient documentation
from you to conclude that the dangers I describe in this letter have a
very real foundation. For example, the minutes of a conference at Kronberg,
Germany, held from June 2 to June 6, 1969 and attended by research personnel
of both BAT and B&W, reflect statements such as the following:
At the St. Ives Conference, May 8 to 12, 1970, an opening
statement was made which included an acknowledgment that tobacco manufacturers
are not competent to give authoritative medical opinions and stating that
"causation" is still an open question. In the minutes of this
Conference, however, we note a number of statements or expressions which
could be most damaging notwithstanding the disclaimer in the opening statement.
For example: (i) reference is made on page 6 to the fact that research
"will continue in the search for a safer product"; (ii) on page
14 a product is characterized as "attractive" because less biologically
active; (iii) on page 15 the phrase "biologically attractive"is
used; and (iv) on page 18 reference is made to a "healthy cigarette." It is our opinion that statements such as the above
constitute a real threat to the continued success in the defense of smoking
and health litigation. 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. . . . In conclusion, I would like to emphasize that, in our
opinion, 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.
. . . Certainly such evidence would make B&W the most vulnerable
cigarette manufacturer in the united States to smoking and health suits.
. . . Therefore, employees in both companies should
be informed of the possible consequences of careless statements on this
subject. Letter, David R. Hardy to DeBaun Bryant, dated August 20, 1970 (emphasis added). After reviewing Hardy's letter, E. Geoffrey Langford of BAT writes a letter to DeBaun Bryant, (B&W General Counsel) dated November 11, 1970 (attached as Exhibit 6). Mr. Langford wrote: I have read with considerable interest and some apprehension,
the copy of Dave Hardy's Opinion about the danger which could arise from
incautious statements in minutes or other documents
on files [sic] in London since they might be open to "discovery"
particularly if BAT itself is a defendant in a smoking and health suit
in the U.S.A. . . . If you have any specific proposals to make
we will certainly co-operate in every way we can. Memorandum at 1 (emphasis added). Evidence other than internal industry documents establishes a pattern of failure to produce documents. The well-known Cippolone case was one of eight to ten smoker cases filed by three New Jersey law firms in the spring of 1983. These filings began the so-called "Second Wave" of tobacco litigation. During the trial of Cippolone v. Liggett, plaintiffs counsel learned of a "special projects" division of the industry created and supported research organization, the Council for Tobacco Research ("CTR"). Haines v. Liggett Group, Inc., 140 F.R.D. 681, 688 (D. N. J. 1992)(attached as Exhibit 7). In the "special projects" division, industry attorneys directed which scientific research would be done. Defendants insisted that the "special projects" documents were attorney-client privileged. In response, plaintiffs presented evidence supporting the "furtherance of crime or fraud" exception to the attorney-client privilege to the effect that the "special projects" program was not truly an independent research organization as represented. Rather, CTR was an organization tantamount to a public relations firm designed to discredit the causal links between smoking and disease and to further the industry's misrepresentation of the risks of smoking to the public. The trial court, Judge Sarokin presiding, held that plaintiff's theory of fraud is supported by "compelling" evidence and that all of the remaining "special projects" documents be produced to plaintiff. 140 F.R.D. at 696. In doing so, Judge Sarokin stated: [O]ne wonders when all industries will recognize their
obligation to voluntarily disclose risks from the use of their products.
All too often in the choice between the physical health of consumers and
the financial well-being of business, concealment is chosen over disclosure,
sales over safety, and money over morality. Who are these persons who
knowingly and secretly decide to put the buying public at risk solely for
the purpose of making profits and who believe that illness and death of
consumers is an appropriate cost of their own prosperity! As the following facts disclose, despite some rising pretenders,
the tobacco industry may be the king of concealment and disinformation. Haines v. Liggett, 140 F.R.D. at 681 (emphasis
added). The Maddox v. Williams, U. S. District Court, District of Columbia, Misc. No. 94-0171, (attached as Exhibit 8) case is another example of the lengths the tobacco industry will go to hide their dirty secrets. The defendant, Dr. Merrill Williams, was formerly a paralegal with the tobacco industry defense firm of Wyatt, Tarrant & Combs, whose job it was to review and isolate "sensitive" documents from the files of Brown & Williamson Tobacco Company. Dr. Williams culled between 4000 and 5000 significant papers documenting the industry cover-ups, the addictive qualities of nicotine, industry failure to disclose its knowledge of smoking hazards prior to the Surgeon General's 1963 report, work on "safer" cigarettes, and pursuit of the legal strategy of admitting nothing. Realizing the documents reviewed directly contradicted the industry's representations, Dr. Merrill Williams decided to direct copies of key documents to governmental officials. Soon after the April 14, 1994, Waxman hearings wherein the chief executives of the top seven tobacco companies appeared before Congress and testified that nicotine was not addictive, Dr. Williams directed delivery of the documents. Dr. Williams was then rewarded by a suit by the tobacco industry seeking return of the documents. In denying the industry the relief it sought, Judge Green stated: This is a seemingly arcane dispute over subpoenas and
motions to quash them. But what is involved at the bottom is not arcane
at all: it is a dispute over documents which may reveal that the Brown
& Williamson tobacco company (sic) concealed for decades that it knew
its products to be both health hazards and addictive. The subpoenas
are the means by which the company is seeking to intimidate, and in a sense
to punish, both Dr. Williams, the discoverer of evidence of this possible
concealment, and the national legislators who are seeking to investigate
the subject further and bring the results to the attention of the Congress
and the public. Maddox v. Williams, U. S. District Court, District of Columbia, Misc. No. 94-0171, (Exhibit 8) at 23-25 (emphasis added). Not only has the tobacco industry concealed documents for the last 40 years, it has consistently refused to answer proper discovery directed to it. For example, in Thayer v. Liggett & Myers, 1.2 T.P.L.R., 2.63, 2.65 (1986)(W. D. Mich. 1970)(attached as Exhibit 9), Judge Fox found: In the instant case, certain aspects of defendant's
conduct during the discovery process indicated an attempt to impede otherwise
proper discovery. First, defendant answered an interrogatory as to
whether it was a member of the Tobacco Institute as "not applicable."
It was later revealed that Liggett & Myers was indeed a member of the
Institute. Second, defendant denied the existence of any agency relationship
between itself and the Institute. This denial was in the face of testimony
that letters from a public health official addressed to the major tobacco
companies had been answered by the Institute's president. Subsequent production
of the letters confirmed this to be the case. Thayer, at 2.65 (emphasis added). In Dunn v. RJR Nabisco Holding Co., 19 D01-9305-CT-06, currently pending in the State of Indiana, defendants are playing word games over the meaning of "relating to" and using their feigned inability to understand the phrase as justification for failing to make discovery. Mind you, this debate is being waged by the firm of Shook, Hardy & Bacon, national counsel for United States Tobacco Company in the instant case. Copies of illustrative correspondence are attached hereto as Exhibit 11. Only one logical conclusion can be made from the "relating to" war: tobacco industry lawyers are failing to respond to appropriate discovery and, instead, lodging unmeritorious objections in bad faith. The tobacco industry's failure to make even a modest disclosure of documents in the present case is strong evidence the industry wishes to play the same games in this Court.
To further delay the diligent prosecution of tobacco cases, the tobacco industry routinely asserts privileges and requests protective orders it knows to be unwarranted, apparently for the sake of delay. For example, in Horton v. American Tobacco Company, 1995 WL 65911 (Miss. 1995), a case tried in January 1988, plaintiff sought a list of cigarette ingredients. A simple enough request some would think; a thorough understanding of the product in question is customarily sought in similar litigation. American Tobacco vigorously sought to protect this "magic list", characterizing it as a closely guarded secret, apparently akin to Colonel Sander's "secret" Kentucky fried chicken recipe. American Tobacco represented that disclosure of the magic formula would be disastrous to the company. The trial court disagreed and ordered production but the dispute did not end there. American Tobacco appealed to the circuit court and then applied to the Mississippi Supreme Court for a Writ of Prohibition seeking reversal of the disclosure order. American Tobacco v. The Honorable Craig Evans and Ella Mae Horton, 508 So. 2d 1057 (Miss. 1987). The Mississippi Supreme Court ordered that the secret formula be produced, but subject to a stringent protective order. 508 So.2d at 1061. During the Horton trial, an American Tobacco company representative, during his testimony, handed the "confidential and sensitive" list of ingredients to the jury members, saying, "[w]hy not, there is nothing secret about this list of ingredients." It is not known how many man-hours and dollars this industry game cost. Presently, the other tobacco industry defendants are suing the State of Massachusetts attempting to enjoin new legislation requiring the industry to simply state "[t]he identity of any added constituent other than tobacco, water or reconstituted tobacco sheet made wholly from tobacco, to be listed in descending order according to weight, measure, or numerical count . . . ." Philip Morris, Inc. et al. v. Harshbarger, et al; (D. Mass. 1996). A similar strategy was used by the industry in Thayer v. Liggett & Myers, supra. There, Liggett sought to restrict plaintiff's flexibility in trial preparations by insisting on a sweeping protective order. According to Judge Fox: The reasons given by the defendant for such an order were
that, first, the material plaintiff would discover in the case "contained
trade secrets and confidential information which should not be divulged
beyond the confines of this case" and second, that "since discovery
in each case should depend on its particular facts and issues, if the information
were given to attorneys for plaintiffs bringing similar suits, this defendant
would be deprived of its rights under the Federal Rules of Civil Procedure."
After trial began, however, it became clear to Judge Fox that certain factors hidden during pretrial proceedings made the granting of the protective order inappropriate. Judge Fox stated: As the total picture developed during the trial,
it appeared that the protective order was serving defendant well in
areas unrelated to the protection of its trade secrets or legitimate
procedural rights. These indirect benefits, which were unclear to all but
defendants when the order was granted, may have been the most important
reasons for seeking 30(b) protection. First, while defendant may properly be protected from
disclosure of its trade secrets, the order it sought and obtained was much
broader. It required that "material and information made available
in discovery proceedings not be divulged or made available to any other
person, directly or indirectly, including copy or summary thereof, or by
giving information pertaining thereto, except to the extent introduced
as evidence at trial . . . ." Plaintiff's attorneys were prohibited from disclosing,
discussing or referring to, with any other person, any material, privileged
or not, which was furnished by defendant. Fruitful consultation between
plaintiff's attorneys with similar cases in other areas was thus effectively
throttled. Counsel could not refer to or discuss any matters pertaining
to facts revealed by Liggett & Myers. Without discussing particulars,
any consultation would be largely fruitless. Defendant thus succeeded,
to a very significant degree, in isolating plaintiff from outside assistance
and advice. Second, the court was somewhat puzzled by the failure
of either the discovered material in the court's file or the evidence presented
to reveal anything approaching a trade secret. The court could not
reconcile this with defendant's assertion of irreparable harm when seeking
its protective order. It inquired of defense counsel whether, in fact,
any trade secrets had been involved in this case. Counsel could only refer to the pleadings covering the
protective order. The court could therefore only conclude that one of
the substantial dangers alleged in support of defendant's protective order
in reality did not exist. . . . To recapitulate, the court was witness to a spectacle
wherein defendant, rich in resources, maintained complete freedom of association
and consultation, including courtroom conferences with other attorneys
experienced in the trial of similar cases, while plaintiff's counsel, already
disadvantaged by the limited resources available to them, were prohibited
from doing likewise by a blanket protective order obtained by defendant
early in the case on grounds which later proved largely illusory. Thayer at 2.677 - 2.69 (Exhibit 9; emphasis added). The same strategy of insisting on overly broad protective orders was again put on display in Dunn v. RJR Nabisco Holding Co., supra. The defendant in Dunn has refused to produce any discovery until or unless the plaintiffs agree to the overly broad and abusive protective order. Defendant's failure to produce documents has persisted for over one and one half years. A copy of the protective order sought and obtained in Dunn is attached for the Court's review as Exhibit 11. If the above were not enough, tobacco industry lawyers directed scientific research so that bogus attorney-client or work product privileges could be later asserted. According to a February 17, 1986, memorandum from J. Kendrick Wells, B&W General Counsel, to E. Peeples, Wells met with others to "discuss whether B&W should receive reports from certain projects to be done at the laboratories of affiliated companies." A copy of the memorandum is attached as Exhibit 12. Wells wrote: I counselled (sic) Gil and David that we should approach
these projects on the basis of whether the reports are limited to the information
from good science and whether the information is useful in the United States
market. Our market is a "tar" and nicotine market, and information
pertaining to other constituent delivery levels and biological effects
will not be helpful. Wells Memorandum at 1 (emphasis added). Wells wrote further, regarding "Project 453"
dealing with Nicotine Within the Smoker": [I]f the reports include discussions of pharmacological
effects of nicotine, the information will not be interesting and
would be helpful to the plaintiff. RD&E will
begin receiving reports from this activity and be prepared to inform
BAT to cease sending the data to B&W if the science is not interesting.
Wells Memorandum at 2 (emphasis added). Further, according to a September 21, 1981, memorandum from general counsel J. Kendrick Wells to E. Peeples regarding the "Committee of Counsel Meeting, September 23" on cigarette "additives," legal counsel from RJR, PM, American, Lorillard and Liggett & Myers met to determine future scientific research into additives." A copy of the memorandum is attached as Exhibit 13. Mr. Wells wrote: The following reasons oppose disclosure [of identity of
additives]: . . . (3) Subsequent to disclosure, anti-tobacco activists
would probably be successful in presenting a persuasive picture of adequate
industry research pertaining to health consequences of additives and
a body of adverse scientific opinion. The picture would provide
strong support for adverse legislation and public criticism of the
industry's products. Memorandum at 2 (emphasis added). Further: The following reasons oppose an industry panel of toxicologists:
. . . If company testing began to show adverse results pertaining
to a particular additive, the company control would enable the company
to terminate the research, remove the additive, and destroy the data. Memorandum at 3 (emphasis added). Based on the above, it seems clear that the evidence establishes a systematic manipulation and abuse of the discovery rules by the tobacco industry whenever it is brought before a court to answer complaints such as this. That pattern continues in the case at hand since not one document has been produced to date. 4. The Tobacco Industry As Intimidator The tobacco industry has also demonstrated a strong and continued desire to intimidate any person who might place himself between it and its ill-gotten gains. For example, one need only look to Brown & Williamson's attempted intimidation of Congressman Henry Waxman. Representative Waxman had previously held Congressional hearings on the health issues of tobacco. After receiving the documents from Dr. Merrill Williams, Congressman Waxman received a subpoena in Maddox v. Williams, No. 93-CI-04806, AR52547, seeking to require Congressman Waxman to return the documents to B&W. According to papers filed by Congressman Waxman and others in D. C. District Court: [T]he documents at issue suggest that B&W may have
known as long ago as 1963 that tobacco smoking might be responsible for
serious health hazards and was addictive, but that it may nevertheless
have denied the existence of such problems even in the face of a major
report of the Surgeon General of the United States and the conclusions
of various scientific panels. Maddox v. Williams, U.S. District Court, District of Columbia, Misc. No. 94-0171, (Exhibit 8) at 2-3. District Judge Green granted the motions to quash the subpoenas. Id. at 23-25. In so doing, Judge Green stated: The subpoenas are the means by which the company [B&W]
is seeking to intimidate, and in a sense to punish, both Dr. Williams,
the discoverer of evidence of this possible concealment, and the national
legislators who are seeking to investigate the subject further and bring
the results to the attention of the Congress and the public. Id. The tobacco industry has also sought to intimidate judges who have ruled against it. The industry has attacked Judge Fox in Thayer, supra, and Judge Sarokin in Haines, supra, claiming that their rulings granting admission or requiring production of documents somehow showed a bias against it. The tobacco industry was not successful against Judge Fox. They were successful, however, in the second attempt to have Judge Sarokin removed from Haines. Haines v. Liggett Group, 975 F.2d 81 (3rd Cir. 1992). The multiple attempts to harass and intimidate Dr. Merrill Williams, who dared to expose the tobacco industry's decades of deception, are also well known. Judge Green wrote: Dr. Williams is being proceeded against in a Kentucky
state court for an alleged theft, and the Congressmen have been brusquely
summoned by subpoena to the offices of the tobacco company's lawyers, with
an explicit direction from a Kentucky judge that only those lawyers and
none others may ask questions. Maddox v. Williams, U.S. District Court, District of Columbia, Misc. No. 94-0171 (Exhibit 8) at 23-25. According to Mr. Philip J. Hilts, the former New York Times reporter covering the Brown & Williamson papers release: [Dr. Williams] was hiding somewhere along the Mississippi
coast between Biloxi and Pascagoula. He had fled from Louisville, south
to the territory where he grew up, among the swamps and tall pines at the
edge of the ocean. Teams of lawyers from the tobacco company were pursuing
him, and hoped to put him in jail. Public relations officers were vilifying
him, sending out press releases on his thievery and violation of the law,
their equivalent of wanted posters, suggesting he was a crazed employee
who had been fired and wanted to retaliate. Smoke Screen, The Truth Behind the Tobacco Industry Cover-up, Hilts, Philip J., at 143 (Exhibit 14; emphasis added). Innocent bystanders such as Dr. Paul M. Fischer are also the subject of the tobacco industry's intimidation tactics. In 1991, Dr. Fischer published an article in JAMA, December 11, 1991 -Vol. 266, No. 22, page 3145, entitled, "Brand Logo Recognition by Children Aged 3 to 6 Years" (Exhibit 15). In that study, it was proven that 91.3% of children aged 6 correctly matched "Old Joe" or "Joe Camel" (the cartoon character promoting Camel cigarettes) with a cigarette. The study also proved that "Old Joe" is just as recognizable as Mickey Mouse among 6-year-olds. One of Dr. Fischer's conclusions was: While cigarette companies claim that they do not intend
to market to children, their intentions are irrelevant if advertising affects
what children know. R. J. Reynolds Tobacco Company is as effective as The
Disney Channel in reaching 6 year-old children. Given this fact and the
consequences of smoking, cigarette advertising may be an important health
risk for children. JAMA, December 11, 1991 -Vol. 266, No. 22, at 3148 (Exhibit 15). For Dr. Fischer's admirable effort to improve the health of children, the tobacco industry rewards him with years of harassment. In early 1992, R. J. Reynolds issues a "Notice of Out-of-State Deposition on Oral Examination and Request for Production of Documents and Things," a copy of which is attached as Exhibit 16. This subpoena was issued in a case brought by Janet Mangini (a private citizen) against RJR for its failure to place health warnings on promotional literature such as caps and T-shirts; Dr. Fischer had no involvement in the case, as a party, witness or otherwise. The subpoena ordered Dr. Fischer to produce:
2. All draft and final field instructions to include but
not limited to: a. recruiting b. study administration c. interviewer instructions; 3. All notes, memos, videotapes (sic) pertaining to the
study; 4. All draft and fill copies of questionnaires; 5. Names, addresses, telephone numbers, background, and
current occupation of interviewers; 6. Hard copy tabulations and data tape containing date
obtained from each respondent who participated in the study, together with
data tape record layout and/or coding format; 7. Original (or color copies) of all test materials; 8. Names and telephone numbers of all respondents and
parents; 9. All correspondence relating to the research and the
publication of the results; 10. All video and audio recordings relating to conduct
of the research; 11. All documentation, questionnaires and recordings pertaining
to any validation or verification conducted for the study; 12. Names, addresses and background of any consultants
used in the design, administration, verification and/or analysis of the
study; 13. Names and addresses of all sources of funding for
the study; and See Exhibit 16. Because Dr. Fischer had entered into a written agreement with the parents of the children in the study to keep their names and other information confidential, he was forced to retain an attorney to quash the subpoena. The Georgia Court of Appeals in Atlanta held, on February 9, 1993, that the documents sought are beyond the bounds of discovery and the subpoena is quashed. Undeterred, RJR issued an Open Records Act request for the same documents and the Medical College of Georgia released certain documents. The final result of the entire ordeal (not detailed here), was that Dr. Fischer resigned from the college in disgust and entered private practice. If more evidence of tobacco industry harassment were needed, one need only to look at all the preemptive suits filed by the industry against states contemplating filing suits to get reimbursement for Medicaid expenses. On November 28, 1995, industry suits were filed against the states of Texas and Massachusetts. "Tobacco Goes on the Offensive", Claudia McLachlin, The National Law Journal, December 11, 1995, at A6 (attached as Exhibit 17). Since those filings, it has been customary for the industry to file preemptive suits against every state that considers filing in an effort to intimidate the state officials from pursuing the cases. The most recent, July 15, 1996, involves Philip Morris, Inc., et al., filing a complaint in Utah's Third Judicial District Court in Salt Lake County for declaratory judgment against Utah Attorney General Janet C. Graham, et al., in an attempt to prevent the State of Utah from filing a medical cost reimbursement suit against the tobacco industry. Additionally, the tobacco industry has successfully intimidated two of the largest networks in the United States, ABC and CBS. ABC aired an investigation entitled "Smoke Screen" on February 28, 1994. The second installment was broadcast on March 7, 1994. Seventeen days later, Philip Morris sued ABC for libel in Circuit Court for the City of Richmond. Overwhelmed by negative rulings in Philip Morris' "hometown" and a request for over $10 billion in damages, ABC settled. CBS was due to air a 60 Minutes segment on November 12, 1995. Corporate counsel for CBS ordered the interview pulled for fear the B&W would embroil it too in expensive and time-consuming litigation. 5. The Tobacco Industry As King of the Mountain While the purpose of Federal Rules of Civil Procedure, Rule Number 1 is "to secure the just, speedy and inexpensive, determination of every action," the tobacco industry's goal has always been the exact opposite. The tobacco industry's position was succinctly stated by Michael Jordan, chief outside counsel for RJR in 1988. Mr. Jordan, writing to other RJR "Smoking and Health" lawyers stated: [T]he aggressive posture we have taken regarding depositions
and discovery in general continues to make these cases extremely burdensome
and expensive for plaintiffs' lawyers, particularly sole practitioners.
To paraphrase General Patton, the way we won these cases was not by spending
all of Reynold's money, but by making that other son of a bitch spend all
his. Memorandum from Jordan to S & H Attorneys, dated April 29, 1988 (attached as Exhibit 18). Brown & Williamson is also on record in this regard: B&W will continue the strategy of intensive litigation
of each case with the objective of exploiting each case's favorable factors
and a policy of no payments to plaintiffs in settlement of cases. B&W's Public Issue Environment at 1 (undated; circa 1985)(Exhibit 19). Lorillard and Liggett & Myers are on the record voting to "stall" disclosure of additives to Congress according to a Wells memorandum memorializing the various positions of the companies at a "Committee Counsel Meeting": Lorillard: Stall any disclosure by industry as long as possible. L&W: Stall disclosure . . . . Memorandum, Wells to Peeples, dated September 25, 1981 (Exhibit 20; emphasis added). It is apparently not enough for the tobacco industry to refuse, consciously, to follow Rule 1; it boasts about its disregard for an efficient, cost-effective system of justice. An example of the industry's unlimited resources is represented by the experience in Cippolone v. Liggett Group, Inc., et al., no 83-2864 (D.N.J.). In Cippolone, more than one hundred motions, four interlocutory appeals, one final appeal and two petitions for certiorari were filed. One plaintiff expert, Dr. Harris, was deposed for twenty-two days. His trial testimony lasted nine days. The verdict was $400,000, yet plaintiffs had spent an estimated $2.5 million in out-of-pocket expenses and attorney time. What did the tobacco industry spend? According to The National Law Journal, reporting a statement of Calvert Crary, a tobacco litigation analyst for Martin Simpson, the industry spent at least $50 million. Andrew Blum, "Will Next Round of Smoking Challenges Be Worth Pursuing," The National Law Journal, June 21, 1988. After the reversal and remand of Cippolone, plaintiffs' counsel Budd Larner voluntarily dismissed the case as it had already done in the cases Barnes, Berko, Dewey and Flynn. Budd Larner also sought to withdraw from Haines on the basis that the firm had been financially exhausted by the tobacco industry. In its Brief in Support of its Motion to Withdraw, Budd Larner stated that in the eight Cippolone related cases, defendants had taken over 222 days of fact witness depositions, 70 days of expert witness depositions. Moving Brief at 3; Edell aff., sec. 4(b). Budd Larner estimated that in total, "the deposition process has consumed approximately 1,000 days; translated into standard work weeks of Monday through Friday, that is approximately four year's worth of depositions." Moving Brief at 3 (emphasis deleted)(Opinion attached as Exhibit 21). In the trial of Cippolone, the industry spared no expense. According to The Washington Post: During most of the court room sessions, six to nine attorneys
sit at the defense counsel tables of the three tobacco companies defending
themselves in the biggest product-liability case ever. One lawyer says
their fees run at an hourly rate of $275 an hour. Some, he says, may be
paid more. Behind them is a phalanx of additional defense attorneys;
sometimes about two dozen show up. Combined, this staff outnumbers the
three plaintiffs' lawyers 8 to 1. Working with the [defense] attorneys
is a large contingent of public-relations officials who serve Philip Morris
Inc. and Lorillard Inc., and a smaller group for co-defendant, Liggett
Group, Inc. Mintz, "Defense Deploys an Army of Lawyers," The Washington Post, May 1, 1988 (Exhibit 22). An early example of the industry litigating to financial exhaustion is Pritchard v. Liggett & Myers Tobacco Co., a lung cancer case filed in the Western District of Pennsylvania in 1954. Thirteen years after filing, in 1967, the plaintiff apparently gave up after two trials, two appeals to the Third Circuit and two petitions for certiorari. 7. Conclusion A critical question is before this Court. Can a multi-billion dollar industry, because of its wealth, power and influence, continue to addict and kill millions of Americans, manipulate the legal system in such a way to preclude an honest look at the industry, and continue to have the taxpayers foot the medical bills for all the suffering caused by the intended use of its products? The forty year history of tobacco litigation is filled with sickness, death and delay. The hazards of tobacco use have caused a public health crisis. The evasive and deceptive behavior of the tobacco industry has been compounded by its evasive and obstructive behavior in litigation. The gross disparity between the resources of the parties and the tobacco industry's willingness to wield its great wealth to obstruct plaintiffs' legitimate discovery attempts has made many legitimately question whether our system of justice can work in this situation. Beginning early and through today, the tobacco industry has never flinched at spending whatever amount necessary, and doing whatever necessary, to stifle adverse litigation. The State of Texas respectfully submits that the time to enforce Fed. R. Civ. P. 1 against the tobacco industry is now. Respectfully submitted: DAN MORALES OF COUNSEL: LAURENCE H. TRIBE ARTHUR MILLER WALTER UMPRHREY, P.C. ATTORNEY-IN-CHARGE JOHN EDDIE WILLIAMS JR. WAYNE REAUD HAROLD W. NIX HUGH E. MCNEELY, of Counsel for KAISER & MORRISON, P.C. By: ____________________________ GRANT KAISER State Bar No.: 11078900 CERTIFICATE OF SERVICE I hereby certify compliance with Fed. R. Civ. P. 5; a
true a correct copy of the foregoing document has been made on Friday,
September 20, 1996, by delivering or mailing to the following attorneys:
ATTORNEYS FOR DEFENDANT PHILIP MORRIS, INC.: J. Dennis Chambers Of counsel: Atchley, Russell, Waldrop & Hlavinka, L.L.P. Maroney, Crowley, Bankston Richardson & Hull, L.L.P.
Fulbright & Jaworski ATTORNEYS FOR R. J. REYNOLDS TOBACCO COMPANY: J. Dennis Chambers Of counsel: Atchley, Russell, Waldrop & Hlavinka, L.L.P. Jones, Day, Reavis & Pogue Morris Atlas ATTORNEYS FOR DEFENDANT BROWN & WILLIAMSON TOBACCO CORP., INDIVIDUALLY AND AS SUCCESSOR TO, THE AMERICAN TOBACCO COMPANY: James N. Haltom
Of Counsel: Kirkland & Ellis ATTORNEYS FOR DEFENDANT LORRILARD TOBACCO COMPANY: Robert A. Gwinn Gene Voigts ATTORNEYS FOR DEFENDANT HILL & KNOWLTON: Winford Dunn Of cousel: Gene Voigts ATTORNEYS FOR DEFENDANT THE COUNCIL FOR TOBACCO RESEARCH - U.S.A., INC William Key Wilde Of counsel: 212.909.6836 Fax Robert E. Dodson ATTORNEYS FOR DEFENDANT THE TOBACCO INSTITUTE, INC.: Lea F. Courington ATTORNEYS FOR DEFENDANT LIGGETT GROUP, INC.: Jerry L. Mitchell Jr. ATTORNEYS FOR DEFENDANT UNITED STATES TOBACCO COMPANY: Nicholas H. Patton ATTORNEYS FOR DEFENDANT B.A.T. INDUSTRIES, P.L.C. Damon Young Mary Elizabeth McGarry
Respectfully submitted, _________________________ Grant Kaiser
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