Abstract
This report, found among the Brown & Williamson Bliley set of documents, is marked "Confidential Attorney Work Product, Attorney-Client Privileged," but is among those documents that the U.S. Supreme Court ruled were not protected by attorney-client privilege because of the crime-fraud exemption. Written by the industry law firm of Jones, Day, Reavis and Pogue, it is a remarkable and scathing analysis of the tobacco industry's precarious legal position and how it got into that position. The report anticipates likely plaintiff's arguments to be used against the industry, lists the documents and industry actions that support those arguments, and presents possible arguments against those accusations.
The report provides a road map of the lies and deceptions perpetrated by the tobacco industry through the years (and substantiates them by citing internal documents and a litany of industry activities that supported those lies). Despite all that, however, the Jones, Day report states up front that "The key defense strategy in smoking and health litigation is (and must be) to try the plaintiff." (Bates Page. 681879272)
Page 681879281 of the report focuses on the industry's failure to warn people of the harm their products cause:
"Although information dating to the 1930s was sufficient to put the tobacco companies on notice (and trigger
both a duty to investigate and a duty to warn), evidence
linking cigarette smoking and cancer clearly existed and was
universally known in scientific circles during the period
1950-54. By the same time, credible evidence linking smoking with cardiovascular and nonmalignant pulmonary diseases emerged."
The document indicts the industry's research endeavors as well:
"Far from being independent, the activities of the CTR [Council for Tobacco Research] and SAB [Scientific Advisory Board] activites were monitored and controlled by industry representatives, including tobacco company lawyers and public relations consultants. Indeed, the lawyers stopped central nervous system reserach proposals, screen out 'dangerous project proposals', and funded 'special projects' designed for litigation purposes."
It continues,
"Although the industry funded a number of other 'outside' research projects, it did so only when it received clear advance assurances of a 'favorable' outcome. For example, Dr. Gary Huber, then of Harvard, solicited industry funds with his view that 'the number of people at potential risk from tobacco consumption is extremely small relative to the very large number of people who now smoke.' " (Page 20 of the report, or Bates Page 681879286)
The memo addresses the industry's failure to investigate, failure to design and/or market safer cigarettes, the overpromotion of cigarettes, addiction/ability to quit, "The Maintenance of the Deadly Delusion of The Open Controversy," appeals to youth, industry intimidation of the press, the issue of conspiracy, and much more.
This document could be an insurmountable obstacle for those who still maintain that the tobacco industry was in the dark for decades about the dangers of smoking.
Fields
- Notes
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Produced by: B&W
Issues: F-ATT, F-LIE, F-P-GOV, P-ENM, P-YTH, I-ANI, C-NIC
Affected Defendants: RJR, CTR
- Quotes
Too numerous and important to list...please see document.
- Company
- Brown & Williamson
- Author
- Crist, Paul G. (RJR Attorney, Jones Day Reavis & Pogue)
Defense
- Marple, William E.
- Kaczynski, Stephen J.
- Abrams, Thomas L.
- Recipient
- Presumed recipient Brown & Williamson
- Region
- United States
- United States
- Type
- report
- Operation/Project
- Corporate Activity Project (Defensive project undertaken by industry attorneys)
An anlysis by the industry law firm of Jones, Day, Reavis and Pogue of the industry's precarious legal position, legal strategies plaintiff's attorneys were liable to use against the industry in court, information supporting those accusations and possible arguments the industry could employ to defend itself.
- Subject
- legal activity
- legal concept
- Corporate strategy
- youth
- industry activity
- industry influence
- industry sponsored research
- industry strategy
- legal concept
Document Images
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• ;~,,,, Plain~i£fs" Contentions ....................... 335
"" .a. Definition of Addiction-. ............
337
b. Corporate Responsiveness:
• Addiction ...........................
341
Supporting Testimony and Documents ............
342
a. Liggett ............................. 342
b. Reynolds ............................
343
c. Philip Morris .......................
354
d. Lorillard ...........................
355
e. American ............................
356
Tobacco Institute 359
.:: ~ ~i);~: ; ,-~5~a., ,i Definition ef Addiction ..... ..~,....
• ': b. Dependency/Ability to Quit ..........
..... ""=' ~'IA~~'"C. Addiction: A Self-Fulfilling ....
-" ' ~, ~"'~ " Prophesy
" VII. ~ PUNITIVE D~GE ISSUES ...........................
A. A." G=ant Clark ................................
....... " .... Plaintiffs' Contentions .... • ....................
378 '
Supportin~ Testimony and Documentation ........ 378
Possible Industry Responses ................... 384
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Plaintiffs' Contentions ....................... 387
Supporting Testimony and Documentation ........ 387
Possible Industry Responses ................... 393
D. True Magazine ................................. 394
Plaintiffs' Contentions .......................
Supporting Testimony and Documentation ........ 395
Possible Industry Responses ...................
u~scree~t~ng o. the Auerbach "Smok~n~ ~eagles
~pe [im~n~ ....................................
Plaintiffs' Contentions .......................
':~'~Supporting Testimony and Docu~ntations .......
...... ._~. ...... Possible ~nuus~ ~o~,a~s .. ..................
422
........ ~ ~ ....... ~~ ....................
~. ............................... ~_.~ ~ .~.
. F. Other Efforts to Discredit Prominent Smoking
~,-., •
~ . ; and Health C~itics ............................
425
Plaintiffs" Contentions/Supporting
• Testimony and Documentation .............. .....
425 ....................
Possible IndusZry Response .................... 425
- xii -
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• :Supporting ~estimon~ and Oo~xlmenCation";.:'.
" " . " : " Correspondence ....
b. ~nfocmaCional Meetings and
Correspondence ......................
c. Intimidating the Press ............. .
Possible Industry Responses ...................
H. ImpEoper Pressure on the Insurance Industry ...
Plaintiffs" Contentions .......................
Supporting Testimony and Documentation ........
436
438
438
440
447
Possible Industry Responses ...................
- x[ii -
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A. T~e Purpose of the Corporate ~ctivity Project
The purpose Of the Corpogate Activity Project was to
analyze plaintiffs' ~heories (particularly in New Jecsey)
~er~aining to "cot~o{ate misconduct''issuesahd the evidence
In addition to f:aming the specific issues of fact
.w~ach ~he defense ~st ~ a are, ~h~s ~andum
evidence. Addicion~l factual and s~ra~e~ic development on
possible industry responses is critical.
B. Sources of Information
In prepa:ing this memorandum, we have relied on
which plaintiffs' counsel can be expected to present in support
of those theories. Ou: discussion of plaintiffs' "misconduct"
contentions is no___~t intended to be objective; rather it is
intended to present a worst case analysis colored with the
adverse conclusions and infe[ences which plaintiffs can be
expected to make.±` The Corporate ACtivity Team, therefore,
made no attempt to be diplomatic or to generously characterize
various issues.
certain categories of information:
Occasionally, case law is cited, but only to place the
plaintiffs' contentions in context not to definitively
analyze the applicable law.
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or aI1 defendants in the New Jerse7 litigation.
4. Documents produced by Reynolds in Ba~ne_~s which
have been selected by plaintiffs,l"
5. Principal pleadings in the New Jersey cases.
6. Materials obtained by plaintiffs (and the
industry) pursuant to FOIA ~eguests, through subpoenas on third
2. Exhibits to such depositions.
3. Approximately 900 documents specifically referred
to in two sets .of interrogatories served by plaintiffs on some
parties, or from the National Archives.
7. Public statements made by plaintif[s' counsel, and
I:~ likely plaintiffs' experts and advisors (e._~, Daynard,
When this Project began, very little Of this
accumulated over a period of several months. While additional
discovery information is available, enough evidence and
Reynolds is continuing to produce and the plaintiffs are
continuing to select documents in the Barnes production. ..............
Discovery is continuing in Other cases as well,
Evaluation of plaintiffs' evidence should be a continuing
process.
651579268
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z ~ /, .polZing and other public awa~eness issues, but does not attem
" ~'~::: :to dupl~cate the ark being undertaken by STIC,
D. Further Work
-"'- :
Obviously much more can be don~. with respect
.........
possible indus~[y responses, ~h¢ collective knowledge, ......
analysis, and judgment of the entire Reynolds" defense team
.~,~i:~[~hould ~e solicited and incorporated. In addition, we should
p~oposed approaches to "corporate misconduct" issues, and their
guidance. Because the case being developed Dy plaintiffs
much 5t:onge[ than those presented in previous mock trials,
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organized into ~ive broad sections, with principal subdivisions
as indicated: ,
Conspiracy Issues.
A. The Maintenance of the Deadly Delusion of
the Open Controversy.
B. The "Gentlemen's Agreement'.
Corporate Awareness and Responsiveness to the
Smoking and Health Controversy.
S~rict Liability/Neg!i~ence Issues.
discussion in one section has direcz applica~i!ity in othe=s.
Thus, for example, evidence about warnings has d:~ect bearing
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---
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'~,~ZI.'; SU~RY AND OVERVIEW .~ '
;
The key defense strategy in smoking and health .
litigation is (and must be) to try the plaintif~.
have been conducted to date. It is cleal, however, that the
defense will not enjoy a simila~ luxury in ~he New Jersey and
Texas litigation.
This sugary is intende~ to be a synopsis of the
theories which plaintiffs have espoused and the evidence which
they have adduced, or may in the ~uture adduce. The main
@ortion of this memorandum treats each of these issues mo:e
' Allega~ions of a civil conspi~a~ have been made
both the Ne~ Je:sey and Texas litigation. Proof of this
allegation requires ~laintiffs to prove an agreement, express
or tacit, among the ~e{endants, and some act or acts codified
~by .....one oc more of the defendants is ~ucthetance of the
--
Conversely,
one should expect that a key plaintiff~" strategy would be to
.try. the co~o~e de~endan~s. "Co~po~a~e misconduct" issues,
ho~eve~, ~efe no~ liti~ated in either ~ o~ Galb~i~h, and
have received only modest attention in the mock t~ials which
conspiracy, which acts are themselves torts, or are performed
in pursuance of a tortious objective, w. Prosser, The Law of
Tort_____.~s 292-93 (4th ed. igTl).
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financial self-interest and with disregard for the health and
to the detriment of the particular plaintiff, to "reinforce"
the smoker in his or her smoking habit.
example, the complaint in Barnes alleges that:
6815 ,-"92"7~
