Crist, Paul G.; Marple, William E.; Kaczynski, Stephen J.; Abrams, Thomas L.
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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
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.