Tobacco Products Liability Project
(Working Draft) Preparation Materials for the Deposition of Brown and Williamson Employees in the Texas Smoking and Health Litigation
Abstract
Memorandum to aid Brown and Williamson employees and their attorneys in preparing for depostions in the Texas Smoking and helath litigation by identifying topics that plainitiffs are interested in based on previous litiagation. The memorandum also provides suggestions for deponents in responding to questions from plaintiffs. Areas identified as of interest to the plaintiffs and with suggested responses and/or preparation include: background information on Brown and Williamson, including B &W's internal and external structure, its position on the smoking and health issues, and its position on youth smoking; B&W's awareness of the risks of smoking, including background information of the B&W R& D Department, the nature of smoking and health research conducted by B& W, and warnings issued by B& W about the risks of smoking; B&W's markiting, advertising and promotional activities; the Council for Tobacco Research; the Federal Trade Commission: and the Tru and National Enquirer Articles.
Fields
- Date Loaded
- 08 Jan 2003
- Named Organization
- Brown & Williamson Tobacco Corporation (B&W)Subsidiary of BAT U.S., located in Louisville, KY.
- Tobacco Institute (Industry Trade Association)
The purpose of the Institute was to defeat legislation unfavorable to the industry, put a positive spin on the tobacco industry, bolster the industry's credibility with legislators and the public, and help maintain the controversy over "the primary issue" (the health issue).- *Council for Tobacco Research-- U.S.A. Inc. CTR (Formerly Tobacco Industry Research Committee (TIRC))
Created and funded by the tobacco industry to award grants to study of the link between smoking and disease. Part of a four decade effort to cast doubt on the links between smoking and disease.- Federal Trade Commission (Enforcement agency for laws against deceptive advertising)
Enforces laws against false and deceptive advertising, including ads for tobacco products. Ensures proper display of health warnings in ads and on tobacco products;collects and reports to Congress information concerning cigarette and smokeless tobacco advertising, sales expenditures, and the tar, nicotine, and carbon monoxide content of cigarettes. - Tobacco Institute (Industry Trade Association)
- Author (Organization)
- King & Spalding (Law firm for Brown & Williamson located in Atlanta, GA)
Page count mismatch (files 64, split 44)
Document Images
problems ~otentlal tricks in the question and how it should be
handled from your counsel's objection.
[28) N@v~r express anger or argue with the examiner. It will
only hel~_,/~because you will lose the cautious and thoughtful
attitude ~o~ need to avoid mistakes. If you find yourself getting
angry, ask for a break,
(29) Do not_exact to testify withou~ the o~her side scoriDg
~9_~. If the other side appears to you to be asking questions
that call for answers that do not help your case, Just realize
that it is his Job and accept the fact that every lawsuit has two
sides.
{30) A~oid~nv attempts at levity. The cold transcript that
will result form your deposition simply does not reflect that you
answered in a joking manner. ~f you make a Joke, you may find it
v~ry unfunny when you later try to explain it to a Jury or a
~udge.
(31) There is not su~ thin~ as ?off-the-recg~d'. If you
have an audible conversation with anybody in the deposition room
at any time, be prepared for questions o, that conversazlon.
(32) If tb~ examiner appears ~otally confused ~bout your
b~sine~s an~ its technical ~speqts, do not attempt to @ducat@
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Ill. LIKE~f AREAS OF INQUIRY IN ~HE DEPOSITION OF A
A. The Rep~sentative's Personal Backuround
The initial stages of the deposition of B&W's representative
will be~'~prehensive inquiry into the representative's personal
background. Topics which will be covered include~
i. The RePresentative's Academic ~d Professiona~ Back~rou,~
Plalntlf~s have attempted through interrogatories and
depositions of employees of other tobacco companies to determine
whether the personnel who developed and implemented the tobacco
companies" policies and practicea on the smoklnq and health issue
were qualified to make such decisions. To this end, plaintiffs will
question the 8&w representative about his academic background {both
undergraduate and graduate) and his prior employment history (both
professional and academic) to determine if he has the scientific or
medical background which plaintiffs allege is necessary to make
informed decisions about the manufacture and marketing of a product
with alleged health hazards. Plaintiffs may request the
representative to bring a copy of his curriculum vitae to the
deposition to expedite and facilitate discovery in this area.
Possible Ouestions
1. What is your academic background7
2. What Jobs did you hold before coming to B&W?
3. What were your duties a~ the jobs you held before you came to
B&W?
4. How" hasyour academic and professional background qualified you
to make~t,he decision to market a dangerous product?
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~estedResponses
Wh~n'-c6nfronted with a question concern£ng one's q~alificatlons
to decide wh~ther to market a dangerous product, be sure to disclaim
that part of the question that assumes that cigarettes are
dangeroug. -Ig you were not in a position of deciding whether
marketed cigarettes, simply say so. If you did participate in the
decision, emphasize the legality of the sale of cigarettes in
general and Brown & Williamson's compliance with laws concerning the
sale of cigarettes specifically.
2. The Representative's Opinion on the Smoking and Health
Issue
After exploring the representative's academic end
professional background, plaintiffs may question the representative
about his personal opinion on the smoking and health issue.
Plaintiffs are interested in whether any B&W employee believes that
smoking causes disease for several reasons. First, an employee's
admission that he believes smoking causes disease may be legally
attributable to B&W in certain circumstances. Second, plaintiffs
will use an employee's personal admission that smoking causes
disease as an indication that B&W's position is unreasonable because
it contradicts or ignores the opinions of respected employees.
Finally, plaintiffs will attempt to use the employee's admission
that smoking causes disease against the employee during his
deposition by exploiting the tension between the personal
recognition of the alleged risks of smoking cigarettes and the
ethics of pa~tlclpating in the production or marketing of such a
product.
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~h!aintiffs are particularly interested in whether the
represen£6ti~e's personal opinion on the smoking and health issue
has changed ifi any way over the years in light of the alleged
increasing ev~'denoe of an association between smoking and human
illness~ -Thus, plaintiffs wall question the representative about
the effect the Surgeon General's reports and studies showing an
association between smoking and disease have had on his personal
opi, lon on the smoking and health issue. Another method which
plaintiffs may use to determine if a representative's personal
opinion on the smoking and health issue has changed over the years
is to ask the representative if he has authored any writings or
publications on the smoking and health issue and then to compare
those writings with present opinions.
Plaintiffs will attempt to portray any representative
whose personal opinion on the smoking and health issue has remained
unchanged over the years as either unreasonable or ill informed.
Plaintiffs will explore the background of such a representative to
determine whether respected persons in the representative's life
(e.g., parents, teachers, coaches, etc.) warned him about the
alleged risks of smoking. Plaintiffs will want to know the basis
for the representative's difference in opinion with these people.
Plaintiffs will also test the validity of such representative's
opinion on the smoking and health issue by questioning the
representative about his knowledge of slang terms for cigarettes
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such as -'c~:ffln nails" and "cancer sticks." Here, plaintiffs will
attempt: to-determine the reasons why the representative's opinion on
the smoking a~d health issue differs from the co~m~o, perception of
smoking.
Possible Ouestions
I. Oo you believe that cigarette smoking causes disease?
2. What is the basis of your opinion?
3. Have you ever believed that smoking causes disease?
4. Do you think it is ethical to produce or market a product that
causes disease?
Have you ever written any articles in the smoking and health
field?
Are you aware that many people claim that smoking causes.
disease? How long have you been aware of such claims?
Are you aware that many studies conclude that smoking causes
disease? How long have you been aware of such studies?
Why hasn't the increasing evidence that smoking causes disease
affected your personal opinion?
Didn't your parents/teachers/coaches warn you not to smoke?
Why would they warn you not to smoke?
10
Have you ever heard cigarettes called "coffin nails" or "cancer
sticks"? When? What do these phrases mean? Do you agree with
these meanings? Why?
~u~aested Responses
Simply tell the truth when answering questions about your
personal opinions on the smoking and health issue. Answers which
indicate that the smoking and health question is an open controversy
should emphasize that several studies have associated smoking with
various dlse&s~s; that these associations have been well publicized
and have bee~ accepted by some people; that these associations
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emphaslze__~t~-~.need for continued research; that Brown & Williamson
and the other ~obacco companies Support this research; and that
premature acceptance of the opinion that smoking causes diseases can
only res_~-~curtailing necessary research in the smoking and
health field~
3. The ReD~eseDtative and His Family's Smokinq Habits
Plaintiffs will question the representative about his
smoking habits to determine whether there is a contradiction
between his life-style and his opinion on the smoking and health
issue. Plaintiffs will attempt to portray a nonsmoklng
representative's decision n~t to smoke as an acknowledgment that
smoking causes disease. Accordingly, the representative will be
asked if he has ever smoked, the reason why he does or does not
smoke, and if he ever quit smoking.
Plaintiffs will also question the representative about
the smoking habits of his family to determine whether he has tried
to influence the smoking habits of any member of his family.
Plaintiffs may also question the representative about any smoking-
related illnesses suffered by him or any member of his family who
smokes.
PQssible Ouestions
I.
2.
3.
4.
Do you smoke? Why?
Have you ever smoked?
HaVe yo~-_ever quit smoking? why did you quit smoking?
Isn't i~ true that you don't smoke because of the health risks
~assoc~a~d wi~h smoking?
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5. Do~s.@~[one in your family smoke?
6. Have you ~ver spoken with a member of your family about not
smoking?.
7. Axe you pdeased or displeased that members of your family
smo_k~
Have-y~u or anyone in your family ever suffered from a smoking
related illness?
Suqqeste~ Responses
Answers concerning one decision to smoke should emphasize
that the decision to smoke is a personal choice made by each
individual as the result of many factors. Do not allow the
questions to imply that the only reason one does not smoke is health
concerns if that is not the case. Similarly, do not allow the
questions to imply that the reason a parent discourages smoking by a
minor child is necessarily because of the alleged health hazards of .~
smoking. Simply explain that the decision to smoke, like many other
decisions, is an adult decisio, that should be made only by informed
adults.
B. The Representative's Employment and Duties
~t Br~wn ~ Williamson
I. The Representative's Orientation and Employment
History at Br~wn & Williamso~ ......
Plaintiffs will continue their inquiry into the
representative's background by questioning the representative about
circumstances concerning the beginning of his employment at B&W.
Plaintiffs will also ask the representative about why he came to
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B&W, about ~ach position the representative has held at B~W, his
duties in those positions, and his role in those ~ositlons r~latin9
to the _smokin6 and health issue.
_=_~s interesting to note that plaintiffs in the
depositions Of other tobacco company representatives have show. a
special interest in the orientation of a new employee at a tobacco
company. Plaintiffs will attempt to discover if there is some sort
of indoctrination process of a new B&W employee during the
employee's orientation in which B&W attempted to influence the
employee's personal opinion on the smoking and health issue. Here,
plaintiffs will attempt to discover whether new S&W employees
atte,ded presentations or received employee handbooks during their
orientation which include information on the s~)king and health ~
issue. Plaintiffs have also shown interest in determining whether
the B&W legal department plays a role in the oriemtation of new
employees by imposing constraints on the new employee's performance
of his duties (i.e., use of certain language in memoranda, review of
work by legal department before circulation, etc.).
~ossible Questions
I. When did you begin working at B&W?
2. Why did you begin working at B&W?
3. What positions have you held at B&W in the past? What were
your duties in these positions?
4. Did your orientation process at B&W include a presentation on
the smoking and health issue?
5. Who mad~ this presentation? What was said at this
presentation about smoking and health?
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Do ne~[employees receive an employee handbook when they begin
6.
worMi~£~B&W? Does this handbook contain information on
smoking and health?
7. Do~s B&W'~ legal department participate in the
orientat~n of a new employee?
8. Doe~ B&W's legal department provide any instructions or
guidelines for the performance of a new employee's Job?
Suggested Responses
Answers concerning presentations on the smoking and health
issue should mention the Tobacco College, the Tobacco Forum, and
other meetings in which B&W employees were encouraged to share their
views on the smoking and health issue. A~swers concerning employee
handbooks should include reference to "Tobaccoz Issues/Answers/
Actions." An effort should be made in any response in this area to
dispel the notions that Brow~ & Williamson "brainwashes" its
employees or coerces them to accept the company's petltlom on
smoking and health.
2. Th@ Representative's Present Duties at Brow~.& Williamso~
Not surprisingly, plaintiffs will spend the majority of
the deposition questioning the representative about his present or
most recent duties at B&W. Areas of inquiry likely to be covered by
plaintiffs concerning certain aspects of B&W's operations (e.g.,
research, advertising, etc.) are discussed more fully in the
sections of the memorandum specifically dealing with those subjects.
However~ plai@_tiffs wall question all B&W representatives abou~
certain subjects. For insta~ce, plaintiffs will attempt to
determine th~extent of each representative's knowledge concerning
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the smokin~and health issue. Questions in this area would include
whether the representative's duties included staying abreast of the
literature on ~he smoking and health issue. If the representative
was not pp~sonally responsible for monitoring the smoking and health
literat~r4, plaintiffs will inquire how the representative was kept
informed on this issue (e.g., briefings, abstracts, newsletters,
etc.).
Representatives from various B&W departments will also be
questioned about their role in the formulation, adoption, or review
of B&W's position on the smoking and health issue. If the
representative did play a role in the formulation and adoption of
B&W's position, the representative will be asked to identify those
sources of information which contributed to and formed the basisf0r
S&W's position on smoking and health. Here again, plaintiffs will
question the representative about how his educational background and
employment experience qualify him to participate in the formulation
of a corporate policy on the health consequences of cigarette
smoking.
Plaintiffs may also ask each representative about his
salary, benefits, and his ownership of B&W stock. Plaintiffs will
attempt ~o use this infor~ation to imply that the representative has
a vested interest in the welfare of B&W and the outcome of this
litigation which would cause the representative to be less than
candid in his testimony.
p@ssible Oues~ions
I. What at6 your present duties at
2. -What is'~our current salary?
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