Tobacco Firm Sought to Cull Studies as ‘Deadwood’ : Litigation: Lawyer wrote memo as company resisted efforts in wrongful death suits to disclose research.
It was an interesting time to be cleaning house.
The year was 1985, and tobacco companies, facing a surge in wrongful death claims, were being pressed to disclose internal documents on their knowledge of the risks of smoking.
Even as they fought the discovery requests, lawyers at Brown & Williamson Tobacco Corp., the third biggest U.S. cigarette maker, sought to clear what they called “deadwood” from company files.
In a memo that used the term seven times, B&W; corporate counsel J. Kendrick Wells said he had advised Earl Kohnhorst, B&W;'s vice president for research, development, and engineering, on the need to prune scientific reports from his files.
Wells said he had marked certain reports “with an X” to designate those that “were deadwood in the behavioral and biological studies area.”
These papers, he wrote, should be segregated, boxed and put in the basement for possible shipment to B&W;'s parent firm, BAT Industries, in England. But no one “should make any notes, memos or lists” of the documents, Wells said in the Jan. 17, 1985, memo, recently leaked to several news organizations and Congress.
Whether B&W; sent scientific reports from its Louisville, Ky., headquarters to England is unknown. Company officials have refused to say if they took Wells’ advice. What is known is that the industry’s legal efforts--including fierce resistance to disclosing internal documents--were a huge success.
The cigarette makers repulsed about 150 lawsuits in the 1980s, preserving their record of never paying a nickel in settlements or judgments to people seeking damages for smoking-related illness.
Realizing that a few losses could bring an avalanche of claims, the companies assigned platoons of lawyers to fight each suit, sparing no expense to overwhelm their opponents. By resisting every motion and appealing every ruling that could be appealed, they exploited the cash-flow problems of plaintiff lawyers, who worked for contingency fees.
Only a handful of cases made it to trial. Some were dismissed by judges, but many plaintiffs--drained by the industry’s hardball tactics--simply gave up.
“To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds’ money, but by making that other son of a bitch spend his,” crowed a memo by an RJ Reynolds lawyer.
Like the other cigarette makers, Brown & Williamson stubbornly fought requests for internal memos and reports on smoking and health. But here the company was more successful than its rivals.
Philip Morris, Lorillard, and Liggett Group, for example, were compelled by court orders to surrender reams of internal records in the Cipollone wrongful death case in New Jersey. Disclosure of the documents during the 1988 trial triggered a flood of bad publicity and a $400,000 damage award against Liggett that was reversed on appeal.
Brown and Williamson, on the other hand, apparently was not forced in any of its lawsuits to disclose similar sensitive documents.
However, some legal experts say the “deadwood” memo puts the firm’s resistance in a new light. If B&W; sought to conceal evidence in the midst of relevant litigation or knowing court battles were likely, experts say the firm may have violated state criminal laws and standards of legal ethics.
For example, in both Texas and New Jersey, where B&W; faced injury claims, it was a crime to destroy, conceal or remove any “record, document . . . or thing” to impair its availability in an “official proceeding"--including a civil court case.
The model rules of conduct of the American Bar Assn. held it improper to counsel clients to unlawfully destroy or hide “a document or other material having potential evidentiary value.” Kentucky State Bar rules stated that a lawyer should “not suppress any evidence that he or his client has a legal obligation to reveal or produce.”
Businesses aren’t required to save paperwork forever. Some balance legal and housekeeping requirements with formal record retention policies that dictate how long to keep records. It is common practice to make opponents work hard in lawsuits to get information.
But experts in legal ethics and procedure say it is improper at best to purge documents based on their potential value to legal adversaries.
Some of these experts said the deadwood memo raises suspicions that that is what B&W; was up to. Among other things, they questioned why Wells’ memo said to keep no lists of the “deadwood” documents--and how a lawyer could know better than B&W;'s vice president for research what was scientific deadwood.
Some legal experts also questioned why true deadwood would be parked offshore and not merely trucked to a landfill.
“ ‘Deadwood’ sounds like a euphemism,” said Geoffrey Hazard, a law professor at the University of Pennsylvania and expert in civil procedure.
“It’s unethical to disguise evidence to keep it from an opponent who has a right to it,” said Richard Lempert, a professor of law and sociology at the University of Michigan. “I find it suspicious that they were going to keep the documents in storage but wanted no ‘notes, memos or lists’ which might reveal to others the documents were there.”
If the documents “genuinely were deadwood . . . there would be no reason not to destroy them,” added Stephen Bundy, a professor of legal ethics at the UC Berkeley.
Conspicuous in the memo was a statement that “Janus” studies be among those treated as deadwood.
“Janus"--the two-faced Roman god who is the patron of beginnings and endings--was the name for a secret program of biological research conducted in Germany for B&W;'s parent, BAT, from 1965-78.
The “Janus” research included numerous animal experiments on the effects of smoking. Among other things, they confirmed that mice painted with tars from tobacco smoke developed tumors. Other Janus studies compared the toxicity of smoke from different cigarettes and types of tobacco. Thus, the “Janus” reports would be of great interest to plaintiffs probing what the industry knew and when.
“Normally, studies are not ‘deadwood’ at all,” said William Townsley, a Texas lawyer who filed several unsuccessful claims against B&W; and other tobacco companies. “ ‘Deadwood’ would be something that no longer had any usefulness,” he said. “You don’t go around destroying research data.”
The deadwood memo is among thousands of pages of B&W; documents leaked in May to anti-smoking members of Congress and several news organizations, including The Times.
B&W; officials say the documents were stolen by a former paralegal for a Louisville law firm that represents the company. The paralegal was under a court injunction not to disclose the documents.
Both Wells, now B&W;'s assistant general counsel for product litigation, and Kohnhorst, now executive vice president and chief operating officer, declined comment when reached by telephone.
Said company spokesman Tom Fitzgerald: “We cannot discuss this or other stolen documents because they are covered by attorney-client privilege.”
Court records indicate that 50 liability claims were filed against B&W; during the 1980s. The Times contacted the lawyers who filed 49 of these claims; lawyers in the other case could not be reached. In the 49 cases, no significant discovery was obtained from B&W; before the cases were dismissed or abandoned, according to interviews and court records.
Typical of their efforts was the case in Washington state of lung cancer victim Jimmy Newell, a shipyard worker who sued asbestos manufacturers, B&W; and a second cigarette maker whose brands he had smoked.
When Newell’s lawyers filed interrogatories concerning B&W;'s involvement in research on the health consequences of smoking, B&W; responded that it objected to questions that used phrases “such as ‘the health consequences of cigarette smoking’. . . . Such phrases are vague, ambiguous and unintelligible in that B&W; cannot reasonably ascertain their meaning,” the company said.
When Newell asked if B&W; had destroyed any documents on smoking and health, B&W; objected that the question was “overly broad and argumentative.”
Given B&W;'s long-held position that smoking is neither addictive nor a proven risk to health, it is clear why the company would not have wanted to disclose the internal papers that recently came to light.
Among them are memos and reports dating to the 1960s in which top officials of B&W; and BAT, then known as British-American Tobacco, declared that nicotine was addictive.
For example, in a July, 1963, memo, B&W; general counsel Addison Yeaman said the company was “in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms.”
In the memo, written several months before the U.S. Surgeon General’s landmark 1964 report linking smoking and lung cancer, Yeaman also predicted the industry would be unable to disprove the cancer connection.
“At the best,” he wrote, “the probabilities are that some combination of constituents of smoke will be found conducive to the onset of cancer or to create an environment in which cancer is more likely to occur.”
“Holy ----,” said an outraged plaintiff’s lawyer, whose lawsuits against B&W; were abandoned, after seeing the Yeaman memo for the first time last month.
“That is completely and 100% contra the party line that they’ve been taking that nicotine is not addictive, that anybody can quit smoking who wants to,” said the lawyer, who would not speak if identified because of concern about B&W;'s assertion that the leaked documents were stolen.
“There’s smoke coming out of these documents,” he said. “I’ve never seen any of this stuff before, and had I seen it, I would have used it.”
Another leaked document--minutes from a 1962 research conference in England attended by scientists from B&W--quoted; British-American research director James Green’s suggestion that “we should adopt the attitude that the causal link between smoking and lung cancer was proven, because then at least we could not be any worse off.”
According to the minutes, Anthony D. McCormick, a member of British-American’s board of directors, remarked at the meeting that acknowledging the risks of smoking would be irresponsible.
“You had not only your own business to consider but the employees throughout the industry, retailers, consumers, farmers growing the leaf, and so on, and you were in much too responsible a position to get up and say: ‘I accept that the product which we and all our competitors are putting on the market gives you lung cancer,’ whatever you might think privately,” McCormick was quoted as saying.
According to letters and memos, B&W; lawyers were particularly worried about legal fallout from statements and writings by BAT scientists who were engaged in sensitive research and tended toward blunt statements on smoking and health. Like an adolescent mortified by clumsy parents, B&W; was ever fretful its British corporate parent would cause legal embarrassment.
A 1970 letter from B&W;'s outside lawyers to the firm’s general counsel was almost passionate about the threat.
In the letter, David R. Hardy of Shook, Hardy & Bacon, which represented B&W; and other tobacco firms, warned that ill-advised statements attributed to B&W;'s parent might be used against B&W; in court.
As an example, Hardy cited minutes of British-American’s research conference in Germany in 1969 that cited “the possibility of distinct adverse health reactions to smoke aerosol: (a) Lung Cancer (b) Emphysema and bronchitis.”
“Of course,” Hardy wrote, “we would make every effort to ‘explain’ such statements if we were confronted with them during a trial, but I seriously doubt that the average juror would follow or accept the subtle distinctions and explanations that we would be forced to urge.”
It is one thing when “known enemies” claim smoking is dangerous, continued Hardy, who died in 1976. “Our problem becomes entirely different and far more serious when agents and employees of the defendant cigarette company or its parent become the spokesmen against us,” he wrote.
“In our opinion . . . documentary evidence from the files of either BAT or B&W; which seems to acknowledge or tacitly admit that cigarettes cause cancer or other disease would likely be fatal to the defense . . . in a smoking and health case.”
These fears intensified as BAT continued its programs of biological research. According to memos, B&W; would be unable to distance itself from the research because it was helping to pay for it.
In two 1979 memos, corporate counsel Wells said B&W; should route incoming research reports through the company’s law department. That way, he wrote, the company could claim the reports were produced for litigation purposes. (Under the doctrine of “attorney work-product,” documents produced for use by a company’s lawyers usually can be withheld from adversaries.)
However, B&W; remained fearful of being tied to the research in Europe. “The problem posed by BAT scientists and frequently used consultants who believe cause (that smoking causes disease) is proven is difficult,” Wells wrote in a memo in 1984.
Wells later sought other safeguards against the buildup of sensitive documents. In a February, 1986, memo, he said he had asked B&W; scientists and engineers to stop requesting status reports on all but the most vital research.
From now on, the memo said, “B&W; will receive concise reports, estimated to be about one-half page in length, twice each year for each project it wishes to follow. While the brevity of the reports will reduce the potential for receipt by B&W; of information useful to a plaintiff, disadvantageous information could be included and the reports could serve as road maps for a plaintiff’s lawyer.”
These precautions reflected the enormous financial stakes of the cigarette litigation.
Should the lawsuits produce large damage awards, “pressure will develop in the Congress for superfund legislation applicable to smoking and health lawsuits,” Wells warned in a 1985 memo. “Such a fund would be financed by contributions from cigarette manufacturers amounting to a large percentage of profits.”
Nothing of the sort has happened. But the tobacco companies find themselves under renewed legal pressure, and the B&W; documents are not helping their cause.
During the last few months, the industry has been rocked by several developments, including the Food and Drug Administration’s announcement that it is considering whether to regulate nicotine as a drug.
The ‘Deadwood’ Memo
Early in 1985, J. Kendrick Wells, a top lawyer for Brown & Williamson Tobacco Corp., wrote a memo outlining his directive to clear “deadwood” from the files of the cigarette company’s research and development department. Wells wrote that he advised Earl Kohnhorst, the department’s director, to box the documents--including some describing a project called “Janus,” which confirmed that tobacco smoke causes tumors in animals--for possible shipment overseas. B & W workers were not to make any note of the contents.
ONE STATE’S LAW
Several states in which smoking-related lawsuits were filed against Brown & Williamson have laws that prohibit the concealment of evidence in court proceedings. New Jersey’s law is typical: “A person commits a crime of the fourth degree if, believing that an official proceeding or investigation is pending or about to be instituted, he . . . alters, destroys, conceals or removes any article, object, record, document or other thing of physical substance with purpose to impair its verity or availability in such proceeding or investigation.”