Bliley PM
Philip Morris Companies Inc. and Philip Morris Incorporated, Plaintiffs vs. American Broadcasting Companies, Inc., Forrest Sawyer, John Martin, Walt Bogdanich, and John/Jane Doe(s) I-IV, Defendants
Abstract
Moves for legal judgment against ABC Television and employees for "[t]he harm caused to Philip Morris by defendants' false and defamatory statements" aired on its Day One newsmagazine broadcast asserting "tobacco companies...are artificially 'spiking' and 'fortifying' their cigarettes sold in the United States with extraneous nicotine for the express purpose of keeping smokers 'hook[ed]'". Quotes from broadcast and follow-up media coverage, summarizes events related to broadcast, and describes manufacturing processes to refute nicotine spiking allegations. Indicates "privileged and confidential attorney-client work product, draft 3/22/94" and relates to Bates 2022813241, 2022813330, 2500119949.
Fields
- Company
- Philip Morris Cos., Inc.
- Type
- Draft material
- Fax
- Legal- Brief
- Fax
- Author
- Booker, L.T.
- Author (Organization)
- Wachtell, Lipton, Rosen & Katz
- Recipient (Organization)
- Philip Morris U.S.A.
- Named Person
- Assuras, T.
- Bogdanich, W.
- Booker, L.T.
- Bury
- Campbell, W.
- Connelly, G. Dr.
- Doe, J.
- Douglas, C.
- Downs, H.
- Durbin, R., Rep.
- Feder, M.
- Hunton
- Jennings, P.
- Katz
- Kessler, David A., M.D., J.D. (Former FDA Commissioner)
appointed FDA Commissioner by President George Bush in December 1990.- Koppel, T.
- Lipton
- Martin, J.
- Myers, M.
- Redlich, N.
- Robbins, B.
- Rosen
- Sawyer, F.
- Synar, M. Rep.
- Wachtell, H.M.
- Williams
- Bogdanich, W.
- Named Organization
- American Broadcasting Companies, Inc.
- American Cancer Society
- Bureau of Alcohol, Tobacco and Firearms
- Capital Cities/ABC, Inc.
- Coaltion on Smoking OR Health
- Day One
- FDA
- Food and Drug Administration
- Hunton & Williams (Counsel for Philip Morris)
Counsel for Philip Morris, located in Richmond, VA.- Kraft Foods
- Miller Beer
- New York Stock Exchange
- Nightline
- R.J. Reynolds Tobacco Co.
- R.J. Reynolds Tobacco Co. (Cigarette manufacturer (Camel, Winston, Doral))
Cigarette manufacturer (Camel, Winston, Doral)- Wachtell Lipton
- World News This Morning
- World News Tonight
- ABC News
- American Cancer Society
- Keyword
- Defamation
- Denatured alcohol
- Flavor packages
- John Marshall Courts Building
- Nicotine spiking
- Punitive damages
- Denatured alcohol
- Subject
- Additives
- cigarette design
- Cigarettes
- Coalitions
- Federal level
- Government agencies
- Health advocacy groups
- industry sponsored research
- Lawsuits
- legislation
- Legislatures
- mass media
- National level
- nicotine
- Regulations
- Research studies
- State level
- addiction
- cigarette design
- Brand
- Marlboro (PM)
Document Images
SENT BY;WAGHTELL LIPTON ,~,
3-22-94 ; 2;04PM ;
WAOHTELL LIPTON~
96871438;# 4
PRIVILEGED AND CONFIDENTIAL
ATTORNEY - CLIENT WORK PRODUCT
DRAFT 3/22/94
CIRCUIT COURT,
COMMONWEALTH OF VIRGINIA
-X
PHILIP MORRIS COMPANIES INC. and
PHILIP MORRIS INCORPORATED,
Plaintiffs,
vs.
AMERICAN BROADCASTING COMPANIES,
INC., FORREST SAWYER, JO~ MARTIN, :
WALT BOGDANICH, and JOHN/JANE :
DOE(S) I-IV, :
:
Defendants. :
COMPLAINT
Plaintiffs Philip Morris Companies Inc. and Philip
Morris Incorporated, by and for their Complaint against deZen-
dants0 allege:
I. Plaintiff Philip Morris Companies Inc. ("Philip
Morris Companies") is a publicly held corporation organized and
existing under the laws of the Commonwealth of Virginia, with
its principal place of business in New York, New York. Philip
Morris Companies is a holding company whose stock is publicly
traded on the New York Stock ExchanGe. Its subsidiary compa-
nies are primarily enGaGed in the tobacco, food and beer busi-
nesses, and own many of the best-known brand names in the
world, including Marlboro cigarettes, Kraft food products, and
Miller beer.
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2. Plaintiff Philip Morris Incorporated ("Philip
Morris U.S.A.") is a corporation organized and existing under
the laws of the Cor~uonwealth of Virginia, with its principal
place of business in New York, New York. Philip Morris U.S.A.
is a wholly owned subsidiary of Philip Morris Companies, is
engaged in the domestic tobacco business and is the largest
tobacco company in the United States. As is hereinafter set
forth, the defamatory statements made by defendants were made
without sDeclfication as between Philip Morris Companies and
Philip Morris U.S.A. and "Philip Morris" was used indiscrim-
inately by defendants to refer both to Philip Morris Companies
and Philip Morris U.S.A. Accordingly, except as otherwise
indicated, the term "Philip Morris" is used in this Complaint
interchanqeably to refer to both Philip Morris Companies and
Philip Morris U.S.A.
3. Defendant American Broadcasting Companies, Inc.
("ABC") is a corporation organized and existing under the laws
of the State of Delaware, with its principal place of business
in New York, New York. ABC, a wholly owned subsidiary of Capi-
tal Cities/ABC, inc., operates the ABC Television Network, a
major American broadcast network with seven owned and operated
and over 200 affiliated stations reaching 99.9% of all United
States television households. ABC's telecasts are regularly
broadcast in and into the Commonwealth of Virginia by numerous
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stations, including bu~ not limited to ABC affiliate Stations
WRIC in Richmond, WJLA in the District of Colkh~bia, WVEC in
Hampton, WSET in LynchberG, WHSV in Harnsburg, WEPT in
KingsDort, Tennessee, and ABC's owned and operated Station WTVD
in Raleigh-Durham, North Carolina. ABC'S telecasts are widely
viewed in the Commonwealth o£ virginia and throughout the
United States and ABC derives substantial revenue from its
broadcasts and other activities in virginia. A/aong programs
produced by ABC News for broadcast on the ABC Television
Network is the news magazine program "Day One" launched last
year.
4. Defendant Forrest Sawyer is the anchor of "Day
One" and was the anchor for the Day One segments on cigarettes
and nicotine on February 28 and March 7, 1994. [Upon informa-
tion and belief, he is employed by ABC.]
5. Defendant John Martin is a "Day One" reporter,
led Day One's "investigation" into nicotine in cigarettes, and
appeared on the February 28 and March 7, 1994 broadcast seg-
ments of Day One regarding cigarettes and nicotine. [Upon in-
formation and belief, he is emp!oysd by ABC.]
6. Defendant Walt BoGdanich is the producer of the
February ~8, and co-producer of the March 7, 1994 Day One seg- ~
ments on cigarettes and nicotine. [Upon information and be- ~
-3-
llef, he is employed by ABC.]
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7. [Possible other individual defendants]
8. Defendants John and Jane Doe are persons who
gathered information, investigated and participated in the
preparation of the February 28 and March 7, 1994 Day One ciga-
rettes and nicotine segments.
~URISDICTIONAND VENU~
9. This Court has jurisdiction over this action
pursuant to va. Code ~ 8.01-328.1(a) (4).
i0. Venue is proper in this Court pursuant to Va.
Code § 8.01-262.
~TJ/R~ OF THE ACTION
11. This is an action uo redress the massive harm
caused to plaintiffs by the Za!se and defamatory statements
made by defendants on ~he nationally televised news magazine
show "Day One" on February 28 and Marc~ 7, 1994 as well as on
other ABC News programs. Announcing tha~ they had "uncovered"
the tobacco industry's "last best secret" "never before dis-
closed to consumers or the government", and asserting that
their "investigation" "could change the tobacco industry for-
ever", defendants, through the use of sensationalized false and
reckless allegations, told viewers across the nation that to-
bacco companies, including Philip Morris, are artificially
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"spiking" and "fortifyinq" their ciqarettes sold in the United
States with extraneous nicotine for the express purpose of
keeping smokers "hook[ed]".
!2. Following this Day One broadcast, Zoreseeably,
the national networks and press accepted as true Day One's sup-
posed "revelation" that the tobacco industry "spikes" its ciga-
rettes with extra nicotine, and repeated these charges vir~u-
ally daily. In what can only be described as a public frenzy,
reporters, the public, government regulators and Congressmen,
"astonished" and "shocked" by Day One's "revelation", called
for governmental and congressional investigation and possible
new regulation. And the s~ock oZ plaintiff Philip Morris Com-
panies and other companies having businesses engaged in the
tobacco industry fell dramatically in reaction to Day One's
charges and the regulators' reaction Khereto. But the frenzy
whipped up by Day One is based on a totally false and defama-
tory premise made up of whole cloth: that Philip Morris inten-
tionally adds extraneous nicotine to the tobacco used in its
cigarette manufacturing process expressly in order to "hook"
smokers. As detailed below, Philip Morris does no such thing.
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SENT BY:WAGHTELL LIPTON NY ; 3-22-94 ; 2:06PM ; WAGHTELL LIPTON~
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~.he Def~natorv D~y One Broadcasts
13. On February 28, 1994, ABC-TV aired the televi-
sion program "Day One" from 8:00 p.m. to 9:00 p.m. (EST). An-
chor Forrest Sawyer opened the program with great fanfare, an-
nouncing: "Tonight, a Day One investigation that could change
the tobacco industry forever". He wen~ on to say, "C±gare~Kes
-- they'll hook you fast and i~ is not Just an accident of na-
ture", and accused the cigarette companies oZ "artificially
spiking [their] cigarettes with nicotine". He told the audi-
ence that for nearly a year, Day One had been investigating
nicotine, and that when word of Day One's "investigation" got
out, the "Food and Drug Administration announced that it is now
considering whether to regulate cigarettes as dru~s". Then,
expos~ style, John Martin, the Day One reporter who led the
nicotine "investigation", told the television audience that Day
One was about to reveal the tobacco Industry's "last best se-
cret" "never before disclosed". That "secret" turned out to be
the false and defamatory claim -- knowingly and/or recklessly
made by defendants -- that Philip Morris (as well as other
cigarette manufacturers) intentionally "spikes" and
"fortiZ[ies]" its cigarettes with extra nicotine durin~ the
man~fact~rlng process to keeD smokers hooked.
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SENT BY:WAOHTELL LIPTON NY
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WAGHTELL LIPTON~
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14. False and defamatory statements knowingly and/or
recklessly made or endorsed by defendants during the course o~
the February 28, 1994 Day One segment included the following:
(b)
Unidentified ABC Voice-over: TheE@ is something
the tobacco companies don't want vou.~...know.
UnidentlfiedABC Voice-over: Cigarettes --
they'll hook. you fast and it iS,.not jUSt @m
acciden~..of n~r~,
(c)
(d)
Unidentified ABC Voice-over: A Day One investl-
~ation that_could chan~e the tobacco..imdustry
forever,.
Why are you artificially sDikin~ your ~Igaret~e8
with nicotine?
Co)
Martin: Now, a lengthy Day One investigation
has uncovered perhaps the ~obacco industry*s
last best secret -- how it artificially
nicotine to cluare~s to keep DooDle smokin~
and boos~ D~ofits
Unidentified ABC Voice-over: The methQCs ~he
ci~aret~e~.comDanies use to precisely ¢on~Q.l the
levels of nicotln@, is somethin~ that has never
before_been disclosed to consur~ers or th~
~overnment.
Martin: It was here in Winston-Salem, North
Carolina that the manufacturing process began to
change. The RJ Reynolds Tobacco Company pio-
neered a two-step process to make cigarettes
more cheaply and_.t0.,~rol ~he level QZ niqo-
%ine, Step one: it developed reconstituted
tobacco, which is made from stalks and s~ems and
other waste that it used to throw away.
• Even though reconstituted tobacco allows
the companies to produce cigarettes more
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cheaply, there are problems -- poor taste and
less nicot±ne. So here's what the companies do
in step two -- they aDDIv a Powerful tobacco
extract containing nicotine and flavor to
reconstituted tobacco. This. process, too. is
meant to be secret.
Martin: -. He told us how they make this
concentrated extract that is rich in nicotine,
ao
Martin: Why would the tob.acco q~mD~ni@s
use this nicotine rich syrup?
Unidentified Former RJR Manager: Thev.,..Dut
nicotine in the form.of tobacco extract
into a product to keep the co~.sttmer happy,
Martin: TheY're fortifying the product
with nicotine. is that correct?
A. Unidentified Former RJR Manager: The
waste-filler -- yes they are.
(J)
Martin: Why are you addina ni~Q.t.~ne tO yOUr
(k)
Martin: But how much nicotine I~. added?
The companies c~n~rol the dosage mrecisel~
~ccordin~ to this former_RJR manager,. [To
manager) En commercially sold cigarettes,
what percentage of tobacco extract is nico-
tine?
Unidentified Former RJR Manager: That re-
ally depends on what level the process
calls for. In other words, I can say to
you, ! wan~ it at one percent, I want it at
five percent, I want it at ten percent, I
want it at fifty percent.
Martin: Et's this ability to control the_exact
dosaqe of nicotine wiuh ~Qb~c.co extract that is
so alarming to Dr. Greg Connelly, a Massachu-
setts health official,
8
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Cliff Douglas (American Cancer Society): The
public do.@sn't know that.the industry ~anIou-
la~@s nicotipe, takes it out, Outs i~ back. in.
uses it as..If it w@r¢ s~q~r being out i~_candy.
They don't have a clue.
Martin:
gress.
Neither, apparsntly, do members oZ Con-
(n)
Martin: Ther@'s another way nicotine is ~dded
to ci~arette.s. And it begins, perhaps surpris-
ingly, at docks like this one in Newark, New
Jersey. It is here ~hat nearly pure nicotine is
brought ashor@ to be cor~blned with alcohol.
It's called denaturing. ~he mixture ca~...then be
aDDli@~ to tobacg~, during the manufacturin~ pro-
cess for ...... amon~ other thi.nGs, flavQrinw. As
~hese truckln~ recQrds show. Philip Morris~..for
exaraDle. ;eceived ShQusands of ~a~.lon~ of this
alcohol mixture durin~ the 1980s. The cigarette
makers sam this mixture leaves only a tiny
amount of nicotine on the tobacco. Still, ~
kind of niGotine manipulation disturbs critics
like Cliff Douglas, of the American Cancer Soci-
Co)
Martin: Were you aware of
Representative Mike Synar (Democrat,
Oklahoma): No, ! wasn't. They don't want
anybody looking at their product, and the
reason is exactly what you just went
through. So th@t they .can doc.~or it, they
g~D alter it, they can do an~thlng with i~,
and ~hey ~an li~erally ~e~a~dize the
health of the American p~blic without
having any consequences.
(Emphasis added.)
15. on March 7, 1994, Day One again aired on the
ABC-Televlsion Network from 8:00 p.m. to 9:00 p,m. (EST).
Anchor Forrest Sawyer, opened the show with the comment, "We
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begin tonight with our continuing investigation into cigarettes
and what's inside them". False and defamatory statements
knowingly and/or recklessly made or endorsed by defendants
during the course of the March 7, 1994 Day One segment included
the Zollowing :
(a)
Unidentified ABC Voice-over: Last week, we
brouqht you new evidence ~bQ~t [hQwl tobacco
comoanles.are maninulatina nlc~tine in ~iq-
~rettes .tO keeo smokers smQ~in~,
(b)
Martin: Last week, Day One reDorted....for the
Z~rst time evidence that ciaarette comDanie~
manipulate levels of nicotine, a highly addi~.-
tire drus. to keem people smoking. _ We foun4
manufacturers add nicotine in carefully cali-
brated dose~.to fortify the tobacco W~D~ prod-
ucts they insert in ci~are.ttes and to reolenisb
nicotine .lost in processing.
(c)
ClIZf Douglas American Cancer Society: It]he
oublic doesn't know that the iA~Strv meniD~-
l.ates nicotine -- takes it out, outs it back ~n,_
uses..it as if it were sugar being out into
candy._ They don't have a clue.
(d)
Martin: Day One has learne~...that two of those
thirteen additives should have riDDed off
~overrament to the tobacco indus~rv's_~aniDu-
lation of nicot~.e in cigarettes. Those tw~
!P~redients are tobacco ~xtracts, which fr@-
c~/en~lv:~s rich in nicotine, and_n~¢otine sul-
fate, or salt~
(Emphasis added.)
16. These knowingly and/or recklessly Zalse and
defamatory statements o£ and concerning plaln~Iffs made during
the February 28 and March 7, 1994 Day One broadcasts were in-
tended to be undersuood to mean, and were understood to mean,
£hat ~urinG the manufacturing process Philip Morris (as well as
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