Ex-Philip Morris Scientist Invokes 5th Amendment

In a public relations embarrassment for the tobacco industry that could reverberate to Washington, jurors in Minnesota’s big tobacco trial Friday began viewing a videotaped deposition in which the former top scientist for Philip Morris Cos. invoked the 5th Amendment 135 times.

Despite extraordinary pressure from Philip Morris, Thomas S. Osdene, the company’s former vice president for science and technology, refused to answer questions from lawyers for the state and Blue Cross/Blue Shield of Minnesota, citing the Justice Department’s pending criminal probe of the tobacco industry.

The specter of a leading tobacco scientist refusing to testify about matters as mundane as when he was promoted could hamstring the defense of the lawsuit here, the biggest courtroom battle in the industry’s history.

For jurors, Osdene’s ritual invocation of the 5th Amendment is a potent reminder that the tobacco defendants, seeking to portray themselves as good corporate citizens, are sweating through a criminal investigation.

It may also intensify fears in Congress about the political risks of approving the nationwide tobacco truce being sought by the industry.

Osdene, employed by Philip Morris from 1965 to 1993, was a major figure during the firm’s transformation from a second-tier cigarette maker with a modest market share, into the biggest tobacco company in the world.

A number of provocative internal memos, sent by or to Osdene, have been cited by anti-tobacco lawyers as evidence of an industry conspiracy to mislead the public about the risks and addictiveness of smoking--a charge cigarette makers have denied.

In a tactical maneuver, lawyers for the state played the first 15 minutes of the tape--in which Osdene invoked the 5th Amendment 11 times--just before court adjourned Friday, presumably to leave a lasting image with the jurors over the holiday weekend. They will return for the fifth week of trial on Tuesday, when the rest of the deposition will be played.

Philip Morris Chairman Geoffrey C. Bible had personally appealed to Osdene to testify in person to avoid the damage created by his deposition, which was taped last June.

“It is of utmost importance that you understand that your testifying fully and truthfully is important to Philip Morris, and that your invocation of the 5th Amendment may be used unfairly to inflict great harm on the company,” Bible said in a Jan. 7 letter.

Company officials also disclosed Friday that they had sought to use a clause in Osdene’s severance agreement to force him to testify, but that they had lost the bid in arbitration.

“The arbitrator completely recognized that Philip Morris had made every effort to get Osdene’s cooperation,” said Valerie Kilhenny, senior counsel with Philip Morris.

“But in the end of the day, he [the arbitrator] felt the right of the 5th Amendment was so strong that he didn’t want to interfere.”

Neither Osdene, reached Friday at his Virginia home, nor his attorney, John Nields, would discuss the matter.

Cigarette makers are having trouble selling Congress on ratifying the proposed $368.5-billion tobacco truce, and the deposition, with its overtones of possible criminal wrongs, won’t make the job any easier.

Under the tobacco settlement, announced last June by cigarette makers, private anti-tobacco lawyers and state attorneys general, the industry would make unprecedented public health concessions in exchange for protection from the most threatening types of lawsuits--class actions and state lawsuits like the one being tried here.

But with critics portraying the deal as a bailout for a rogue industry, many lawmakers already are worried about its political risks. Tobacco lawyers had argued vehemently against playing the deposition, contending its prejudicial impact would far outweigh its probative value.

They said attorneys for the state and Blue Cross had engaged in a “smear campaign,” deliberately asking questions about the criminal probe and other inflammatory subjects.

But Judge Kenneth J. Fitzpatrick rejected their arguments, issuing an order last week allowing the deposition to be played.

Speaking in a husky voice and coughing frequently, Osdene read from a script in response to 11 questions, saying: “On the advice of counsel, I respectfully decline to answer based on my 5th Amendment privilege against self-incrimination, because there is an ongoing parallel criminal investigation.”

Osdene gave that answer to a question about when he was promoted to research director and to another about whether he had been completely truthful in his 1984 deposition in the wrongful death case of Rose Cipollone, a New Jersey lung cancer victim.