Draft Concerning Smoking and Health Issues Prepared by RJR in-House Legal Counsel in Connection with Ongoing Litigation Containing Summaries Rendering Legal Advice to RJR in-House Legal Counsel, RJR Managerial Employees and RJR Employees.
Date: 13 Mar 1992
Length: 19 pages
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Length: 19 pages
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- Ricciardi, L.R.
- Vanevery, P.
- Roberts, G.
- Ammon, T.
- Gerstner Lvj
- Kirkman, J.
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-15- and contAnues to thAs day as CTR. From ~ts ~nception I t~e principal purpose of CTRwas ~o aid and assis~ research ~nto ~obacco usa and hsalt~.5 CT~ d~d no~ £tael~ oonduc~ research. Rather~ it sol~c~ted proposals fo~ f~nd£ng~hrough a g~an~ ~rogram. hdv£aory ~oard ("S~"), a group o~ IndaDandant, highly re~utable ~cion~la~a affiliated wi~ a variety of the ~oDaoco company m~ers of C~. ~e independent s~, however, was responsible fo~ evalua~£ng granfi applloa~ions and deciding whi~ proposals ~o fund. The ~dividual g=an~ reolplen~s were ~lolutely Zree ~o p~llsh thole resea~ Eesul~s. Su~ research was o~.n c=-~ded by ~. Eede=al gove~en~ and by various natio~l health or;anizations. The ~a s~-~t pro~vas ~ev~icle by which ~he industry complied wi~ its p~lic occident made in 195~ to fund sci~ific rose.oh d~signed to answer f~d~tal ~ea~lons regarding amo~in; and h~l~. 5 To date, tl,.e CTR S~ ~an~ p~~~ 1,174
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- 16 - projects, which did no~ Meglnun~il I~S, were Moth differen~ and separate in procedure, scope, and substance from ~he ~esea=oh funded by t~e SAB ~ran~ / progTam. Zn la~e 1965, ~e ~o~acco companies asked outside a~unsel.~o p~ovide legal a~vice hea1~ li~i~a~ion. One oE ~e reco~endati~ns was f~d additional independen~ medical and 8cien~ifia research ~a~ might Me of assls~ance in ~n~in~ and future cases. Thi~ rec~endation was ad~p~ed by complies. ~eseaEch, ~e o~p~les also oonmul~e~ wi~ ~ s~aff, An~lu~In~ the~eolen~ifi~ ai=ec~= -- Once such a pEo~e~wam appearS, acco~in~ depa~men~ dlsb~sed the ~nds from an ~an~ pEogr~.. These new projects, called "C~Speclal PEO~e~s," also we~e oft~co-f~de~ by institutions. ~e =eseaEohe=s weEe pe~i~ed ~o p~lish
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- 17 - ~udge Sarokin's Opinion -- pass£ona~e in tone and Intemperate in language -- is riddled with factual errors and unsuppo~csd inferences. These errors, caused and compounded bF ~udge Sarokin°s legal errors, require vacation of his order. 1. The lynchpin of Judge 8aro~in'e "finding" of fraud is ~/~at petitioners "channeled. research relevan~ ~o smoking and health from the SASgran~ progra~ to CTR Special Projects in orde~ ~o suppress p=ivile~e and work-p=~duc~ BU~ ~a~ is ~la~ly wron~. The =mooEd es~llshes ~ha~ petitioners ~vo~ asserted any p~ivila~e over -- even vh~~se eo~ioa~ion~ involved Zndeed~ Judge Sa~ok~ ge~ed ~0 ~ec~l~e~i8 (Opinion a~ 6), bu~ ~ ignored l~.6 ~o 6 Pe~i~ioners emphasized to Judge Sarokin during o~al ar~en~ ~a~ey produced ~he research ~nd nonp=ivile~ed =o~uni~a~ionm to MR. WEBERz . . . Every plece of [Foa~note continued on sex, page]
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- 18 - documents withheld were co~munlcatlonI by and anong counIel and thei~ olientI whio~ ~e Special Master found weEe opinion wo=k product. clear. CTRSpeoial P:oJects -were conducted by independent soientls~s affiliated with a variety of special pro~ecte ~a~ wai called for ~hat waIn~t ~u~ed eve=. All ~E i~, all of the correspondinci with ~I THE COURT= YOU are saying been ~u~ned eve=? I~:l. WEB,~R: Every bi~. THE COURT~ ove~? MR. WEBER: T~at is wha~ Z tried ~o make clear a momen~ ago. TH~ COU~T| Y~u I~a~:e~ tO answer, and I interrup~ed you. Talkin9 about letters from cottneel as to what should ova:. ~e~Lng in :e~s o~ co~espondence ~o resear~ers, ~n Transcript of July 9, 1991, at 17.
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- 19 - related ~o ~he tobacco ~ndustry." Special ~epor'... a~ 2. Fu~c.~.sr, as the special Masta~ ~ound, ~a~ fro~ bo~n~ hidden~ "~hese~ reoe~c~e~ ~e~_e ~e~'m£~ed .~9 =ublis~ ~he ~esultm o~ thei~ ~sea~=h.'* ,T,.~. a~ 2-3 (emphaslsadded). Researc~ published wi~ fundln~ ~rom CTR Special Projects was specifically credited to the CTR Special Projects p~o~am. ~. at 3.7 3. Judge Safe,in s~atsd ~.ha~ "acco~din~ to discontinued if they seemed unlikely to help pltltioners* defense e~rategy. Petitioners never made tha~ a CTR Speolal P~o~eot was discontinued based on its research results. To ~he contrary, plaintiff's counsel conceded -- and Judge saracen appeared to acknowledge -- tha~ plaintiff had no such evidence.8 7 See ~_q 1967 CTR Board Minutes; see al~o "Immunogenio Prope~les oE Tobacco Smoke," by 8.B. Lahrer, M.R. Wilson, and J.E. Salvag~io, crediting grant suppo~ from "~ fo~2~~- U.S.A. - Special Pro~e¢~. 84 R.Z." • 8 Although plalntlff*s counsel was in pcsaesslon of all of ~he. ~esea~oh proposals considered fo~ fundin~ under she had no evidence that any .much research was to~mlnated because it would ~e adverse to the MS. WALTERSI Wha~ we don'~ have is the [Footnote contlnusd on next:page]
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4, Relying on the 1954 Fran~S~a~emont, advez"cised that CTR was solely an independent oEganlzatlon. Bu~ no~hlng in ~he Frank S~a~emen~ / t.hat C~ could not have o~te= funotlone -- am long the SAB g=an~ p~og~ i~8elf continued ~o be independent. S. Finally, Judge Sarokln s~a~es ~ha~ the ~ha~. A~ mos~ ~he do~en~8 ~i~ed by Judge Sarokln show ~ha~ CTR s~aff and i~m .soion~ifi= di=e=~o= -- any~~ evldenca s~mi~ed by the plaintiff (bu~ independence.I0 documents in the defense files that establish (A) Rases=the=, we will ~en~inue wi~htheg~an~ because ~hle fo~ I~ a~ion puEpoaas. may help u8 . (B) We will ~e~mlnate it lsn'~ ~e~ng us 19-20, 9 OtheE documents show that so~e members of the indUstry had compZaints a~out t~e grant program -- i~onieally~ for heing~Ul independent, sea Opinion a~ 34-35. i0 FOE example, a Sep~embo: 18, 1974 leSSeE f~om David [Footnote ¢on~inuad on next:page]
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require this Cou~-~ to ~onolude ~h&t the dls~iot =our~ co~iSted clear errs= in reversing~e Magistrate. They are also further evidence of ~t~dards and procedures employed by~dgo Sarokin in f~dlng Judge Hedges' ~Ing cloa~iy erroneous. .f reaffirms ~fl~o independence of CTR8 The committee could utilize function and independence of CTR, Tobacco Rssea~c~shculd be resps~"t::sd a~ all ~imss. I~ should continue under its p~ssen~ s~ucture and should be indepsnden~ o£ any £ndust~y supe~vtsion or control.~ Exhibit P ~o PlalntifZ~s Brie£ in fron~ o£ Judge Sarokin.
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- 55 - Sarokin~s ~l~ng, ~is Cou~ shoul~ sup~iso~ au~ority ~o assi~ t~e case ~o ano~ar dls~rict cou~ Judge. Petitioners respe¢tfully s~mi~ impartiality in ~Is matte~ At ~he ve~ leam~, ~u~e Sarokln can no longe= ma~aln ~e "appearance of ~pa~iali~y" that ~hl8 CouE~ -- as we~ as due process -- demands. ~is cou~ is ~powe~ed vi~ sup~iso~ authority ~o ~eassign ~ases ~0 o~e~ dlS~=i=~ Cou~ ~ud~es in orde~ ~o avoid bias o~ ~e appearance of bias. ~ v. ~, ~7~ Y.2d Chualar Co~., 596 F.ad 15~ ~v. ~, SS3 F.~d bano). Reassl~en~ iS approprlata ~O "presage no~ only ~he reality bu~ also f~c~ionin~ Of ~e ~udioi~ as a 671 F.~d a~ 789 ("Impa~lality an~ the appearance of impa~iality In a ~udicial OZ~icaE a~a ~e sine ~a non oZ ~e~erlcan legal
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This Cou~'~ need not gc past ~he first paragraph of the first page of Judge sarckin's opinion to see bias and prejudice. Judge Sarokln literally rails against petitioners' alleged mis~onduut: In light of the current controversy surrounding breast implants, one wonders when our industries will recognize their obligation to voluntarily disoloss risks from the use Of their products. All too often in the choice between ~..,,l~O physical health of consumers and ~he financial well- being of business, concealment is safe~y, and money over morality. ~ Sllp op. at 1 (emphasis added). confusion. This damning accusa~ion is directed against petitioners for conduct alleged (but nc~ proven) by plalntifZ -- allegations that Judge Sarokin nonetheless clearly believes are t~ue. Yet, two of the petitioners (Reynolds and the Tobaooo Institute) have never tried any case (includfngF~£~jl~) before Judge And in ~ the ~ury found -- ~hat ~hsy did ll~ engage in either conspiracy or fraud.
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- 57 - one stop further. No longer satisfied with mereZy attacking petitioners' alleged (and disputed) F~~-~, Judge Sarokin pu~llcly maligns petitioners d~hi~i~l~d~ sllp op. at I (emphasis added). There has been no trial in Ehis case or even a~ evidentlary hearing. Rather, ~udge Serokin has considered plaintiEf's allegations, reviewed a handful of documents in light of ~hose allega~Ions, and wlthou~ guilty. ~udge Sarokin has become "lawyer, ¥1~es|, and consSsten~ ~udge -- impa~lallty." Rese~ve M~ni~= C~. v. Lo~, 529 F.2d 161, IS~-$6 (eth OlEo 1976). purpos~ and one pu~ose onlys TO p~licly reprimand in fao~ ~gagad in ~e conduc~ plaln~Iff alleges. Bu~ Justice and "the assurance ~a~ ~ho arbi~o~ Is no~