United States v. Philip Morris USA, Inc.

FINAL OPINION

KESSLER, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION.........................................................26

A. Overview.............................................................26

B. Preliminary Guidance for the Reader....................................29

II. PROCEDURAL HISTORY.................................................31

III. CREATION, NATURE, AND OPERATION OF THE ENTERPRISE..........34

A. Pre-1953 Overview — The Rise in American Smoking and the Status of Scientific Research on Smoking and Health.............................35

B. Creation of the Enterprise .............................................36

C. TIRC/CTR — Tobacco Industry Research Committee/Couneil for Tobacco Research-USA..............................................41

1. Selection and Approval of TIRC’s Scientific Advisory Board Members and Scientific Director...................................46

2. Research Activities of TIRC/CTR....................................49

3. Public Relations Activities of TIRC/CTR..............................53

4. Publications and Public Statements of TIRC/CTR......................56

a. TIRC/CTR Annual Reports.....................................56

b. TIRC/CTR Newsletters........................................58

c. TIRC/CTR Press Releases and Other Public Statements............60

D. Tobacco Institute......................................................62

1. Formation of the Tobacco Institute ..................................62

2. Relationship Between the Tobacco Institute and TIRC/CTR.............66

3. Tobacco Institute Press Releases, Public Statements, Advertisements, Brochures, and Other Publications..................70

4. Tobacco Institute Committees.......................................77

a. Committee of Counsel and Outside Counsel.......................77

b. Tobacco Institute Executive Committee ..........................80

c. Tobacco Institute Communications Committee.....................81

5. Tobacco Institute College of Tobacco Knowledge.......................82

6. Tobacco Institute Testing Laboratory................................86

E. Joint Research Activity Directed by Defendants’ Executives and Lawyers...........................................................87

1. Witness Development..............................................87

2. CTR Special Projects ..............................................91

a. Nature of CTR Special Projects.................................91

b. Lawyers’ Involvement with CTR Special Projects..................94

c. Scientists Funded Through CTR Special Projects.................100

3. Lawyers’ Special Accounts.........................................100

a. Special Account No. 3.........................................101

b. Special Account No. 4.........................................101

c. Special Account No. 5.........................................106

d. Institutional Grants...........................................107

F. Committees .........................................................108

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1. Research Review Committee, Research Liaison Committee, and Industry Research Committee....................................108

2. Industry Technical Committee .....................................110

3. Tobacco Working Group...........................................112

G. Coordinated Smoking and Health Literature Collection and Retrieval.....115

H. Defendants’ Organizations Focused on ETS Issues .......................118

I. International Organizations, Committees, and Groups.....................119

1. Overview........................................................119

2. TMSC — Tobacco Manufacturers’ Standing Committee.................123

3. TRC — Tobacco Research Council...................................125

4. TAC — Tobacco Advisory Council ...................................126

5. ICOSI — International Committee on Smoking Issues..................129

6. INFOTAB — International Tobacco Information Center................132

7. TDC — Tobacco Documentation Centre ..............................135

8. CORESTA — Center for Cooperation in Scientific Research Relative to Tobaceo/Centre de Coopération pour les Recherches Scienti-fiques Relatives au Tabac........................................136

9. Tobacco Institute Interaction with Overseas and International Groups........................................................137

J. Dissolution of CTR and the Tobacco Institute............................141

1. CTR............................................................142

2. Tobacco Institute.................................................143

IV. THE DEFENDANTS ARE ENGAGED IN AND THEIR ACTIVITIES AFFECT INTERSTATE AND FOREIGN COMMERCE...................143

A. Philip Morris Companies..............................................143

B. Philip Morris........................................................143

C. R.J. Reynolds........................................................144

D. Liggett.............................................................144

E. Lorillard............................................................144

F. BATCo .............................................................144

G. Brown & Williamson..................................................144

H. American ...........................................................144

I. Tobacco Institute.....................................................144

J. TIRC/CTR..........................................................145

V. DEFENDANTS DEVISED AND EXECUTED A SCHEME TO DEFRAUD CONSUMERS AND POTENTIAL CONSUMERS OF CIGARETTES IN MOST, BUT NOT ALL, OF THE AREAS ALLEGED BY THE GOVERNMENT.......................................146

A. Defendants Have Falsely Denied, Distorted and Minimized the Significant Adverse Health Consequences of Smoking for Decades.............146

1. Cigarette Smoking Causes Disease..................................146

2. Scientific Research on Lung Cancer up to December 1953..............148

a. Scientists Investigating the Rise in the Incidence of Lung Cancer Linked Smoking and Disease before 1953 ...............148

b. By 1953, Defendants Recognized the Need for Concerted Action to Confront Accumulating Evidence of the Serious Consequences of Smoking ...................................153

3. Developments Between 1953 and 1964 ...............................155

a. Between 1953 and 1964, the Evidence Demonstrating that Smoking Causes Significant Adverse Health Effects Grew Although No Consensus Had Yet Been Reached................155

b. Before 1964, Defendants Internally Recognized the Growing Evidence Demonstrating that Smoking Causes Significant Adverse Health Effects......................................164

c. In the 1950s, Defendants Began Their Joint Campaign to Falsely Deny and Distort the Existence of a Link Between

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Cigarette Smoking and Disease, Even Though Their Internal Documents Recognized Its Existence ......................168

4. The 1964 Surgeon General Report Represented a Scientific Consensus that Smoking Causes Disease ..........................174

a. The Process and Methodology of the Surgeon General’s Report.....174

b. The Conclusions..............................................178

5. Post-1964 Research on the Adverse Health Effects of Smoking and Defendants’ Persistent Denials Thereof............................179

a. Following Publication of the 1964 Report, the Scientific Community Continued to Document the Link Between Smoking and an Extraordinary Number of Serious Health Consequences..............................................179

b. Defendants’ Internal Documents and Research from the 1960s, 1970s, and Beyond Reveal Their Continued Recognition that Smoking Causes Serious Adverse Health Effects and Then-Fear of the Impact of Such Knowledge on Litigation............180

c. Despite Their Internal Knowledge, Defendants Continued, From 1964 Onward, to Falsely Deny and Distort the Serious Health Effects of Smoking...................................187

6. As of 2005, Defendants Still Do Not Admit the Serious Health Effects of Smoking Which They Recognized Internally Decades Ago....................................... 204

7. Conclusions......................................................207

The Addictive Properties of Nicotine....................................208

1. Introduction.....................................................208

2. Cigarette Smoking Is Addictive and Nicotine Is the Primary Element of that Addiction .......................................209

a. How Nicotine Operates within the Body.........................209

b. Evolving Definitions of “Addiction” and Classification of Nicotine...................................................211

c. Consequences of the Addictiveness of Nicotine ...................216

d. Conclusion...................................................218

3. Defendants Were Well Aware that Smoking and Nicotine Are Addictive......................................................218

a. Philip Morris.................................................219

b. R.J. Reynolds................................................231

c. BATCo......................................................237

d. Brown & Williamson..........................................258

e. Lorillard....................................................266

f. American Tobacco Company...................................269

g. CTR........................................................270

4. Defendants Publicly Denied that Nicotine Is Addictive and Continue to Do So..............................................271

a. Philip Morris.................................................272

b. R.J. Reynolds................................................274

c. BATCo......................................................277

d. American Tobacco Company...................................278

e. Brown & Williamson..........................................278

f. Lorillard ....................................................279

g. Liggett......................................................280

h. Tobacco Institute.............................................281

i. CTR........................................................286

j. Defendants’ Conduct Continues.................................286

5. Defendants Concealed and Suppressed Research Data and Other Evidence that Nicotine Is Addictive...............................289

a. Philip Morris.................................................290

b. BATCo......................................................297

e. Brown & Williamson..........................................298

d. American Tobacco Company...................................303

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e. Tobacco Institute.............................................303

f. CTR and Other Defendant Funded Research Groups..............303

6. Conclusions......................................................307

C. Nicotine “Manipulation”: Defendants Have Falsely Denied that They Can and Do Control the Level of Nicotine Delivered In Order to Create and Sustain Addiction........................................308

1. For Decades, Defendants Have Recognized that Controlling Nicotine Delivery, in Order to Create and Sustain Smokers’ Addiction, Was Necessary to Ensure Commercial Success............309

a. Defendants Recognized the Need to Determine “Minimum” and “Optimum” Nicotine Delivery Levels in Order to Provide Sufficient “Impact” and “Satisfaction” to Cigarette Smokers...................................................309

(1) Philip Morris.............................................311

(2) R.J. Reynolds ............................................312

(3) Brown

&

Williamson and BATCo............................314

(4) Lorillard.................................................315

(5) Liggett..................................................315

b. Defendants Have Long Recognized that Controlling the Nicotine to Tar Ratio Would Enable Them to Meet Minimum and Optimum Nicotine Delivery Levels...................315

(1) Philip Morris.............................................315

(2) R.J. Reynolds ............................................319

(3) Brown & Williamson and BATCo............................325

(4) American................................................328

(5) Lorillard.................................................329

(6) Liggett..................................................333

c. Defendants Understood the Correlation Between Nicotine Delivery and Cigarette Sales.................................334

(1) Philip Morris.............................................334

(2) R.J. Reynolds ............................................334

(3) Brown & Williamson and BATCo............................335

(4) Lorillard.................................................336

2. Defendants Researched, Developed, and Utilized Various Designs and Methods of Nicotine Control to Ensure that All Cigarettes Delivered Doses of Nicotine Adequate to Create and Sustain Addiction......................................................337

a. Defendants Recognized the Need to Design Cigarettes that Would Produce Low Nicotine and Tar Measurements under the FTC Method While Also Delivering the Minimum Nicotine Levels to Create and Sustain Addiction................338

b. Leaf Blend and Filler: Defendants Controlled the Amount and Form of Nicotine Delivery in Their Commercial Products by Controlling the Physical and Chemical Make-Up of the Tobacco Blend and Filler....................................339

(1) Philip Morris.............................................341

(2) R.J. Reynolds ............................................343

(3) Brown & Williamson and BATCo............................344

(4) American................................................345

(5) Lorillard.................................................347

(6) Liggett..................................................348

c. Nicotine to Tar Ratio: Defendants Have Used Physical Design Parameters to Increase the Nicotine to Tar Ratio of Their Cigarettes.................................................349

(1) Filter Design.............................................350

(2) Ventilation and Air Dilution................................351

(3) Paper Porosity and Composition............................351

d. Smoke pH and Ammonia: Defendants Altered the Chemical Form of Nicotine Delivered in Mainstream Cigarette Smoke

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for the Purpose of Improving Nicotine Transfer Efficiency and Increasing the Speed with Which Nicotine Is Absorbed by Smokers................................................352

(1) Scientific Overview........................................352

(2) Individual Defendants’ Documents ..........................357

(a) Philip Morris .........................................357

(b) R. J. Reynolds.........................................360

(e) Brown & Williamson and BATCo........................364

(d) American.............................................369

(e) Lorillard.............................................370

(f) Liggett...............................................371

e. Other Additives: Defendants Researched the Use of Other Additives to Control Nicotine Delivery.........................372

3. Defendants Have Made False and Misleading Public Statements Regarding Their Control of the Nicotine Content and Delivery of Their Products.................................................374

a. The Waxman Hearings........................................374

b. Defendants’ False and Misleading Public Statements Continued After the Waxman Hearings........................380

c. Testimony Consistent with Fraudulent Public Statements..........383

4. Conclusions......................................................383

D. The Government Has Failed to Prove by a Preponderance of the Evidence that Defendants Deliberately Chose Not to Utilize or Market Feasible Designs or Product Features that Could Produce Less Hazardous Cigarettes..........................................384

1. Introduction.....................................................384

2. Defendants Have Long Acknowledged Internally the Existence of a Market for a Genuinely Less Hazardous Cigarette..................385

3. Defendants Received Conflicting Messages From the Government and the Public Health Community About Their Efforts to Create and Market Less Hazardous Cigarettes............................386

4. As Part of the Effort to Make Less Hazardous Cigarettes, Defendants Experimented with General and Selective Reduction.....389

a. General Reduction............................................389

b. Selective Reduction...........................................391

(1) Defendants’ Efforts to Reduce Benzo(a)pyrene................392

(2) Defendants’ Efforts to Reduce Phenols Through Use of Charcoal Filtered Cigarettes .............................392

(a) Philip Morris .........................................393

(b) R J Reynolds..........................................395

(c) Lorillard’s York Cigarette..............................395

(3) Defendants’ Efforts to Reduce Ciliastats.....................396

(4) Defendants’ Efforts to Reduce Delivery of Tobacco-Specific Nitrosamines....................................396

5. Defendants’ Efforts to Develop/Market Potentially Less Hazardous Non-Conventional Products......................................399

a. Philip Morris.................................................399

(1) Accord...................................................399

(2) Next....................................................400

(3) Nicotine Analogue Program................................401

b. RJ Reynolds.................................................402

(1) The Multijet Filter........................................402

(2) Heated Tobacco Products..................................403

(a) Premier..............................................403

(b) Eclipse...............................................410

(3) EW/Winston Select........................................415

e. BATCo and Brown & Williamson...............................420

(1) FACT Cigarette..........................................420

(2) Project Ariel .............................................421

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(3) Project Airbus............................................422

(4) Advance.................................................423

d. Lorillard’s Zero Tar and PMO Projects..........................426

e. Liggett’s Project XA..........................................426

6. The Government Has Not Proven by a Preponderance of the Evidence that Defendant Had a “Gentleman’s Agreement” Not to Develop a Less Hazardous Cigarette and Not to Do In-House Biological Research on the Hazards of Smoking.....................427

7. Conclusions......................................................429

E. Defendants Falsely Marketed and Promoted Low Tar/Light Cigarettes as Less Harmful than Full-Flavor Cigarettes in Order to Keep People Smoking and Sustain Corporate Revenues......................430

1. Low Tar/Light Cigarettes Offer No Clear Health Benefit over Regular Cigarettes .............................................431

a. History of Health Claims......................................431

b. The FTC Method.............................................433

c. The FTC Method Does Not Measure Actual Tar and Nicotine Delivery...................................................435

d. The Public Health Community Has Concluded that Low Tar Cigarettes Offer No Clear Health Benefit......................444

2. Based on Their Sophisticated Understanding of Compensation, Defendants Internally Recognized that Low Tar/Light Cigarettes Offer No Clear Health Benefit....................................456

a. Defendants Internally Recognized that Low Tar Cigarettes Are Not Less Harmful Than Full-Flavor Cigarettes ............456

(1) Philip Morris.............................................456

(2) R J Reynolds .............................................458

(3) Brown & Williamson.......................................459

(4) BATCo..................................................460

(5) Lorillard.................................................460

(6) Liggett..................................................460

b. Internally, Defendants Had an Extensive and Sophisticated Understanding of Smoker Compensation.......................461

(1) Philip Morris.............................................461

(2) R J Reynolds .............................................467

(3) Brown & Williamson.......................................469

(4) BATCo..................................................470

(5) American Tobacco.........................................474

(6) Lorillard.................................................474

3. Defendants Internally Recognized that Smokers Switch to Low Tar/Light Cigarettes, Rather than Quit Smoking, Because They Believe They Are Less Harmful..................................475

a. Defendants Recognized that Smokers Choose Light/Low Tar Cigarettes for a Perceived Health Benefit......................476

(1) Philip Morris.............................................477

(2) R.J. Reynolds ............................................481

(3) Brown & Williamson.......................................483

(4) BATCo..................................................485

(5) American Tobacco.........................................487

(6) Lorillard.................................................487

b. Defendants Internally Recognized that Smokers Rely on the Claims Made for Low Tar/Light Cigarettes as an Excuse/ Rationale for Not Quitting Smoking...........................488

(1) Tobacco Institute .........................................488

(2) Philip Morris.............................................488

(3) R.J. Reynolds ............................................492

(4) Brown & Williamson.......................................495

(5) BATCo..................................................497

(6) American Tobacco.........................................499

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(7) Lorillard.................................................499

(8) Liggett..................................................500

4. Despite Their Internal Knowledge, Defendants Publicly Denied that Compensation Is Nearly Complete and that the FTC Method is Flawed...............................................500

a. Tobacco Institute.............................................504

b. Philip Morris.................................................504

e. RJ Reynolds.................................................506

d. Brown & Williamson..........................................506

e. BATCo......................................................507

f. American Tobacco............................... 507

g. Lorillard ....................................................507

5. Despite Their Internal Knowledge, Defendants’ Marketing and Public Statements About Low Tar Cigarettes Continue to Suggest that They Are Less Harmful than Full-Flavor Cigarettes.....................................................507

a. Philip Morris.................................................513

(1) Philip Morris’s Low Tar Cigarette Marketing Techniques.....513

(2) Philip Morris’s Research on the Low Tar Cigarette Category...............................................524

(3) Philip Morris’s Public Statements About Low Tar Cigarettes..............................................527

b. R.J. Reynolds................................................529

(1) R.J. Reynolds’s Low Tar Marketing Techniques...............529

(2) R.J. Reynolds’s Research on the Low Tar Cigarette Category...............................................535

(3) RJR’s Public Statements About Low Tar Cigarettes...........537

c. Brown & Williamson..........................................537

(1) Brown & Williamson’s Marketing of Low Tar Cigarettes.....537

(2) Brown & Williamson’s Research on the Low Tar Cigarette Category...............................................540

(3) Brown & Williamson’s Public Statements About Low Tar Cigarettes..............................................545

d. BATCo......................................................546

(1) BATCo’s Research on the Low Tar Cigarette Category........546

(2) BATCo’s Public Statements About Low Tar Cigarettes ........549

e. American Tobacco Marketing of Low Tar Cigarettes..............549

f. Lorillard ....................................................554

(1) Lorillard’s Marketing of Low Tar Cigarettes..................554

(2) Lorillard’s Research on the Low Tar Cigarette Category.....558

g. Liggett......................................................560

6. Conclusions......................................................560

From the 1950s to the Present, Different Defendants, at Different Times and Using Different Methods, Have Intentionally Marketed to Young People Under the Age of Twenty-One in Order to Recruit “Replacement Smokers” to Ensure the Economic Future of the Tobacco Industry..................................................561

1. Definition of Youth................................................561

2. The Defendants Need Youth as Replacement Smokers ................561

3. Defendants’ Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation........................................565

a. Development of the Link Between Marketing and Youth Smoking........................_...........................565

(1) No Single-Source Causative Factor Can Describe the Complex Link Between Marketing and Youth Smoking.....565

(2) Public Health Authorities Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation...............................................566

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(3) Independent Studies Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation...............................................569

(4) Credible Expert Witnesses Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation...............................................570

b. The Ubiquity of Defendants’ Marketing Normalizes and Legitimizes Smoking for Youth...............................575

c. Risk Perception: The Inability of Youth to Grasp the Full Implications of Smoking.....................................576

4. Tracking Youth Behavior and Preferences Ensures that Marketing and Promotion Reach Youth .....................................580

a. Defendants Track Youth Behavior and Preferences...............580

(1) Philip Morris.............................................580

(2) Lorillard.................................................594

(3) American Tobacco, BATCo, and Brown & Williamson..........598

(4) R.J. Reynolds ............................................607

b. Defendants’ Marketing Employs Themes Which Resonate with Youth.....................................................616

(1) Philip Morris.............................................617

(2) Lorillard.................................................622

(3) Brown & Williamson.......................................625

(4) R.J. Reynolds ............................................630

c. Defendants Continue Price Promotions for Premium Brands Which Are Most Popular with Teens..........................639

(1) Philip Morris.............................................641

(2) Liggett..................................................643

(3) Lorillard.................................................643

(4) Brown & Williamson.......................................643

(5) R.J. Reynolds ............................................644

5. Defendants’ Marketing Successfully Reaches Youth...................645

a. Defendants’ Spending on Marketing and Promotion Has Continually Increased.......................................645

b. Defendants Advertise in Youth-Oriented Publications.............646

(1) Philip Morris.............................................647

(2) Liggett..................................................651

(3) Lorillard.................................................651

(4) Brown & Williamson.......................................653

(5) R.J. Reynolds ............................................654

c. Defendants Market to Youth Through Direct Mail................656

(1) Philip Morris.............................................656

(2) Lorillard.................................................658

(3) Brown

&

Williamson.......................................659

(4) R.J. Reynolds ............................................659

d. Defendants Market to Youth Through an Array of Retail Promotions................................................659

e. Defendants’ Promotional Items, Events and Sponsorships Attract Youth................................ 663

(1) Events...................................................663

(2) Sponsorships.............................................664

(3) Promotional Items ........................................667

6. Defendants’ Youth Smoking Prevention Programs Are Not Designed to Effectively Prevent Youth Smoking....................667

7. Despite the Overwhelming Evidence to the Contrary, Defendants’ Public Statements and Official or Internal Corporate Policies Deny that Their Marketing Targets Youth or Affects Youth Smoking Incidence..............................................672

a. Defendants Claim They Restrict Their Marketing to People Twenty-one and Older.......................................672

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(1) The 1964 Advertising Code.................................672

(2) Official Corporate Policies..................................674

b. Defendants Deny Their Marketing Influences Youth Smoking Initiation; Defendants’ Explanation for Their Marketing Practices Is Not Credible....................................676

(1) Tobacco Institute .........................................676

(2) Philip Morris.............................................682

(3) Liggett..................................................684

(4) Lorillard.................................................684

(5) BATCo and Brown & Williamson............................686

(6) RJ Reynolds .............................................688

8. Conclusions......................................................691

G. Defendants Have Publicly Denied What They Internally Acknowledged: that ETS Is Hazardous to Nonsmokers ...............................692

1. Introduction.....................................................692

2. The Consensus of the Public Health Community Is that ETS Causes Disease in Nonsmokers...................................693

a. The Development of the Consensus.............................695

b. The Consensus...............................................703

3. Internally, Defendants Recognized that ETS Is Hazardous to Nonsmokers...................................................708

a. ETS Research at Philip Morris’s Instituí fiir Biologische Forschung (INBIFO).......................................709

b. Defendants’ Recognition of the Validity of the Hirayama Study.....716

c. Other Internal Research and Statements Revealing Defendants’ Knowledge of the Health Risks of Passive Smoking.....718

4. Internally, Defendants Expressed Concern that the Mounting Evidence on ETS Posed a Grave Threat to Their Industry.....720

5. Defendants Made Public Promises to Support Independent Research on the Link Betwen ETS and Disease....................722

6. Defendants Undertook Joint Efforts to Undermine and Discredit the Scientific Consensus that ETS Causes Disease..................723

a. Defendants Acted Through a Web of Coordinated and Interrelated International and Domestic Organizations..........724

(1) 1975-1980: The Tobacco Institute ETS Advisory Group........724

(2) 1977-1991: “Operation Berkshire” ..........................727

(3) 1987: Operation Downunder................................732

(4) 1988-1999: The Center for Indoor Air Research (CIAR).....735

(a) CIAR Applied Projects.................................739

(b) Defendants Cultivated CIAR’s Apparent Independence.....742

(c) The Demise of CIAR...................................746

(5) PosW.991: IEMC.........................................746

(6) The Global ETS Consultancy Program.......................752

(a) Establishment and Goals of the ETS Consultancy Program ...........................................752

(b) Implementation of the ETS Consultancy Program: Recruiting, Training, and Educating the Consultants.........................................753

(c) The Indoor Air Pollution Advisory Group (IAPAG).........757

(d) The Appearance of “Independence”......................759

(e) Defendants’ Use of Consultants .........................760

(f) ARIA and IAI ........................................762

(g) The Industry’s ETS Consultants Cited and/or Published Without Disclosure of Tobacco Industry Ties ...............................................764

(h) ACVA/HBI...........................................766

(7) ETS Symposia............................................767

(a) The 1974 Bermuda (Rylander) “Workshop”...............768

(b) The Geneva (Rylander) Conference......................769

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(c) The Vienna Conference.................................771

(d) The 1987 Tokyo Conference.............................772

(e) The 1989 McGill “Symposium” ..........................774

b. Defendants and Their Paid Consultants Controlled ETS Research Findings.............. 777

(1) The 1995 Japanese Spousal Study...........................777

(2) The 1989 Malmfors/SAS Airline Study.......................781

(3) The 1992 HBI 585 Building Study...........................784

(4) The 2003 Enstrom/Kabat Study.............................786

7. Defendants Made False and Misleading Public Statements Denying that ETS Is Hazardous to Nonsmokers............................788

8. Defendants Continue to Obscure the Fact that ETS is Hazardous to Nonsmokers...................................................795

a. Websites and Other Public Statements..........................795

b. The Philip Morris External Research Program (PMERP)..........798

c. Other Initiatives..............................................799

9. Conclusions......................................................800

H. At Various Times, Defendants Attempted to and Did Suppress and Conceal Scientific Research and Destroy Documents Relevant to Their Public and Litigation Positions .................................801

1. Suppression and Concealment of Scientific Research..................801

a. R.J. Reynolds................................................802

b. BAT Group..................................................804

c. Philip Morris.................................................810

d. Lorillard ....................................................814

2. Document Destruction Policies.....................................814

a. BAT Group..................................................815

b. R.J. Reynolds................................................831

3. Improper use of Attorney-Client and Work Product Privileges.........832

a. BAT Group..................................................832

b. R.J. Reynolds................................................836

c. Liggett......................................................836

d. Findings by Other Courts......................................836

4. Conclusions......................................................839

VI. THE PROVISIONS AND IMPLICATIONS OF SETTLEMENT AGREEMENTS BY DEFENDANTS.....................................839

A. Liggett’s Settlement Agreement with Various States......................839

B. The Master Settlement Agreement.....................................841

1. Provisions of the MSA.........................................841

2. Enforcement of the MSA......................................844

3. Developments Since the MSA..................................848

VII. DEFENDANTS HAVE VIOLATED 18 U.S.C. 1962(c)........................851

A. Introduction.........................................................851

B. Defendants Engaged in a Scheme to Defraud Smokers and Potential Smokers..........................................................852

1. Defendants Falsely Denied the Adverse Health Effects of Smoking.....854

2. Defendants Falsely Denied that Nicotine and Smoking Are Addictive......................................................856

3. Defendants Falsely Denied that They Manipulated Cigarette Design and Composition so as to Assure Nicotine Delivery Levels Which Create and Sustain Addiction........................858

4. Defendants Falsely Represented that Light and Low Tar Cigarettes Deliver Less Nicotine and Tar and, Therefore, Present Fewer Health Risks than Full-Flavor Cigarettes............859

5. Defendants Falsely Denied that They Market to Youth................861

6. Defendants Falsely Denied that ETS Causes Disease..................864

7. Defendants Suppressed Documents, Information, and Research.........866

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C. Defendants Established an Enterprise..................................867

1. Applicable Legal Standards........................................867

2. Defendants’ Enterprise Had a Common Purpose......................869

3. The Enterprise operated through both formal and informal organization....................................................870

4. The Enterprise Has Functioned as a Continuous Unit.................871

D. The Enterprise Engaged in and Its Activities Affected Interstate and Foreign Commerce.................................................872

E. Each Defendant Was Associated with, but Distinct from, the Enterprise.....873

1. Each Defendant Is Associated with the Enterprise....................873

2. Each Defendant is Distinct from the Enterprise......................875

F. Each Defendant Participated in the Conduct of the Enterprise.............875

G. Each Defendant Carried Out Its Participation in the Conduct of the Enterprise by Engaging in a Pattern of Racketeering Activity...........878

1. The Government Has Proven that Defendants Caused Mailings and Wire Transmissions, in Furtherance of the Scheme to Defraud, in Violation of 18 U.S.C. §§ 1341 and/or 1343 .........................878

a. Defendants’ Routine Mailing Practices ..........................881

(1) Philip Morris.............................................881

(2) Lorillard.................................................881

(3) Liggett..................................................881

(4) R. J. Reynolds ............................................881

(5) The Tobacco Institute .....................................882

(6) Council For Tobacco Research..............................882

b. Prior Stipulations and Admissions Establish the Mailings and Wire Transmissions Underlying 79 of the Alleged 145 Racketeering Acts..........................................882

c. The Mailings and Wire Transmissions Underlying the Alleged Racketeering Acts Which Involve Defendants’ Press Releases and Advertisements Were Disseminated to the Public Via the United States Mails and Wire Transmissions................882

d. Defendants Caused Wire, Radio, and Television Transmissions Underlying the Racketeering Acts............................883

e. The Mailings and Wire Transmissions Involving Communications Were Sent or Received by Defendants or their Representatives............................................884

f. The Cigarette Company Defendants Are Liable for the Mailings and Wire Transmissions Underlying the Racketeering Acts Committed By Defendants CTR and TI...................885

2. The First Amendment Does Not Protect Defendants’ False and Misleading Public Statements....................................886

a.

Noerr-Pennington

Protects Only Those Defendants’ Statements Made in the Course of Petitioning the Legislature; It Does Not Immunize Statements Made with the Purpose of Influencing Smokers, Potential Smokers, and the General Public.....................................................886

b. The Government Has Met the Necessary Standard of Proof to Show that Defendants’ Actions Are Fraudulent.................887

3. Defendants Engaged in a Pattern of Racketeering Activity in Furtherance of the Scheme to Defraud............................889

a. Each Defendant Committed at Least Two Racketeering Acts, the Last One of Which Occurred Within Ten Years from the Commission of the Prior Racketeering Act.....................889

b. The Racketeering Acts Are Related and Continuous...............889

(1) The Racketeering Acts Are Related.........................890

(2) The Racketeering Acts Have Been Continuous................890

4. Defendants Acted with the Specific Intent to Defraud or Deceive.....891

a. Defendants Are Liable for the Acts of Their Officers, Employees, and Agents......................................892

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b. Defendants Are Deemed to Possess the Collective Knowledge of Their Officers, Employees, and Agents......................893

c. Specific Intent May Be Established by the Collective Knowledge of Each Defendant and of the Enterprise as a Whole.....895

5.Defendants’ False and Fraudulent Statements, Representations, and Promises Were Material.....................................898

VIII.DEFENDANTS HAVE VIOLATED 18 U.S.C. § 1962 (d)......................901

A. Applicable Case Law.................................................901

B. Each Defendant Is Liable for the RICO Conspiracy Charge Because Each Entered into the Requisite Conspiratorial Agreement..............903

C. Liggett Withdrew from the Conspiracy .................................906

IX. ALTRIA IS LIABLE FOR ITS VIOLATIONS OF 18 U.S.C. § 1962 (c) and (d)....................................................................907

X. THERE IS A LIKELIHOOD OF PRESENT AND FUTURE VIOLATIONS OF RICO................................................908

A. Applicable Law......................................................908

B. The Enterprise’s Scheme to Defraud Presents Continuing Opportunities for Defendants to Commit Violations of 18 U.S.C. § 1962 (c) and (d) ...............................................................911

C. The MSA Has Not Sufficiently Altered Defendants’ Conduct to Justify Not Imposing Appropriate Remedies .................................913

D. As to Certain Defendants, There is Not a Reasonable Likelihood of Future Violations of 18 U.S.C. § 1962 (c) and (d)........................915

1. CTR............................................................915

2. The Tobacco Institute.............................................916

3. Liggett..........................................................918

XI.REMEDIES...............................’.............................919

A. Legal Standards Governing Remedies ..................................919

B. Specific Remedies....................................................923

1. Prohibition of Brand Descriptors ...................................923

2. Corrective Communications........................................925

3. Disclosure of Documents and Disaggregated Marketing Data...........928

a. Depositories .................................................929

b. Websites ....................................................930

c. Privilege Claims..............................................931

d. Disaggregated Marketing Data.................................932

4. General Injunctive Provisions......................................932

5. National Smoker Cessation Program................................933

6. Youth Smoking Reduction Targets..................................933

7. Corporate Structural Changes......................................934

8. Public Education and Countermarketing Campaign...................936

9. Costs ...........................................................937

I. INTRODUCTION

A. Overview

On September 22, 1999, the United States brought this massive lawsuit against nine cigarette manufacturers of cigarettes and two tobacco-related trade organizations. The Government alleged that Defendants have violated, and continue to violate, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 , by engaging in a lengthy, unlawful conspiracy to deceive the American public about the health effects of smoking and environmental tobacco smoke, the addictiveness of nicotine, the health benefits from low tar, “light” cigarettes, and their manipulation of the de

*27

sign and composition of cigarettes in order to sustain nicotine addiction. As Justice O’Connor noted in

Food and Drug Administration, et al. v. Brown & Williamson Tobacco Corporation, et al.,

529 U.S. 120, 125 , 120 S.Ct. 1291 , 146 L.Ed.2d 121 (2000), “[t]his case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use.”

In particular, the Government has argued that, for approximately fifty years, the Defendants have falsely and fraudulently denied: (1) that smoking causes lung cancer and emphysema (also known as chronic obstructive pulmonary disease (“COPD”)), as well as many other types of cancer; (2) that environmental tobacco smoke causes lung cancer and endangers the respiratory and auditory systems of children; (3) that nicotine is a highly addictive drug which they manipulated in order to sustain addiction; (4) that they marketed and promoted low tar/light cigarettes as less harmful when in fact they were not; (5) that they intentionally marketed to young people under the age of twenty-one and denied doing so; and (6) that they concealed evidence, destroyed documents, and abused the attorney-client privilege to prevent the public from knowing about the dangers of smoking and to protect the industry from adverse litigation results.

The following voluminous Findings of Fact demonstrate that there is overwhelming evidence to support most of the Government’s allegations. As the Conclusions of Law explain in great detail, the Government has established that Defendants (1) have conspired together to violate the substantive provisions of RICO, pursuant to 18 U.S.C. § 1962 (d), and (2) have in fact violated those provisions of the statute, pursuant to 18 U.S.C. § 1962 (c). Accordingly, the Court is entering a Final Judgment and Remedial Order which seeks to prevent and restrain any such violations of RICO in the future.

In particular, the Court is enjoining Defendants from further use of deceptive brand descriptors which implicitly or explicitly convey to the smoker and potential smoker .that, they are less hazardous to health than full flavor cigarettes, including the popular descriptors “low tar,” “light,” “ultra light,” “mild,” and “natural.” The Court is also ordering Defendants to issue corrective statements in major newspapers, on the three leading television networks, on cigarette “onserts,” and in retail displays, regarding (1) the adverse health effects of smoking; (2) the addictiveness of smoking and nicotine; (3) the lack of any significant health benefit from smoking “low tar,” “light,” “ultra light,” “mild,” and “natural” cigarettes; (4) Defendants’ manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (5) the adverse health effects of exposure to secondhand smoke.

Finally, the Court is ordering Defendants to disclose their disaggregated marketing data to the Government in the same form and on the same schedule which they now follow in disclosing this material to the Federal Trade Commission. All such data shall be deemed “confidential” and “highly sensitive trade secret information” subject. to the protective Orders which have long been in place in this litigation.

Unfortunately, a number of significant remedies proposed by the Government could not be considered by the Court because of a ruling by the Court of Appeals in

United States v. Philip Morris, USA Inc., et al.,

396 F.3d 1190 (D.C.Cir.2005). In that opinion, the Court held that, because the RICO statute allows only forward-looking remedies to prevent and restrain violations of the Act, and does not

*28

allow backward-looking remedies, disgorgement (i.e., forfeiture of ill-gotten gains from past conduct) is not a permissible remedy.

Applying this same legal standard, as it is bound to do, this Court was also precluded from considering other remedies proposed by the Government, such as a comprehensive smoker cessation program to help those addicted to nicotine fight their habit, a counter marketing program run by an independent entity to combat Defendants’ seductive appeals to the youth market; and a schedule of monetary penalties for failing to meet pre-set goals for reducing the incidence of youth smoking.

The seven-year history of this extraordinarily complex case involved the exchange of millions of documents, the entry of more than 1,000 Orders, and a trial which lasted approximately nine months with 84 witnesses testifying in open court. Those statistics, and the mountains of paper and millions of dollars of billable lawyer hours they reflect, should not, however, obscure what this case is really about. It is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community. Moreover, in order to sustain the economic viability of their companies, Defendants have denied that they marketed and advertised their products to children under the age of eighteen and to young people between the ages of eighteen and twenty-one in order to ensure an adequate supply of “replacement smokers,” as older ones fall by the wayside through death, illness, or cessation of smoking. In short, Defendants have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.

Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.

1

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What a sad and disquieting chapter in the history of an honorable and often courageous profession.

B. Preliminary Guidance for the Reader

Courts must decide every case that walks in the courthouse door, even when it presents the kind of jurisprudential, public policy, evidentiary, and case management problems inherent in this litigation. From the day this lawsuit was filed, it has garnered much media attention. Recognizing this, the Court hopes to assist the intrepid reader with her task by explaining certain principles and procedures that it has followed.

First and foremost, the Court has decided that, as fact finder, its obligation is to present to the appellate courts, the parties, and the public

all

the relevant facts which have been proven by a preponderance of this massive body of evidence consisting of testimony (including written direct examination, in-court cross examination, and re-direct examination of witnesses in this trial, as well as deposition and trial testimony of witnesses in related cases), and thousands of exhibits. By virtue of this procedure, the appellate courts will have before them all the factual determinations they need to decide the numerous legal issues which will unquestionably be raised.

Certain consequences flow from the decision to present the most complete factual picture possible. Even though this Opinion is unusually long and detailed, on occasion, there are very few facts presented on important issues and questions leap off the page to the reader. In those instances, it should be understood that the parties presented no further evidence and the Court has stated whatever Findings can be appropriately made on whatever evidence does exist; the record must remain bare as to the unanswered questions and the gaps in the evidence. On other occasions, some individual factual-findings may appear unclear or inconsistent with other factual findings. In those instances, the Conclusion to that Section will contain the Court’s final Findings, and its reasons for reaching them.

Second, in an effort to make the substance of the Opinion as accessible as possible, almost every Section of the Opinion in both the Findings of Fact and the Conclusions of Law contains an Introduction that provides an overview of the subject matter to be covered and a Conclusion that summarizes what has been found in that Section; the extensive detailed Findings between the Introduction and the Conclusion provide the factual “meat” between the two. In a few instances, Sections are so brief or so self-evident that no Introduction or Conclusion was necessary. Finally, Appendix I contains a Glossary of frequently used terms and concepts; Appendix II contains the relevant Surgeon Generals’ Reports and their major findings; and Appendix III contains all the Racketeering Acts charged by the Government.

Third, every effort has been made to make each Section self-contained so that it is complete and understandable in and of itself. Thus, a reader who is interested in only a particular topic, such as youth marketing, can pick up that Section, and obtain the information he needs without having to read the entire Findings of Fact. However, it has been virtually impossible to totally segregate the Findings presented in each Section. At times, the historical

*30

data, the scientific data, and the relevant documentary materials overlap subject matter areas and therefore must be repeated in order to ensure that a Section can be read and understood by itself. By the same token, many individuals are identified numerous times in the text in an effort to make it easier for the reader to follow the narrative rather than having to search through many pages to re-familiarize himself with a person’s position within either a Government agency or one of the Defendant corporations.

Fourth, specific record citations have been given whenever possible. Many times an individual Finding of Fact is either a direct quote from a witness’s written or oral testimony or is taken directly from a proposed finding submitted by one of the parties and supported by the record and proved by at least a preponderance of the evidence, Vast amounts of testimony were given — by eminent and respected scientists, government officials and corporate executives. Only the portions of their testimony specifically cited in the Opinion were affirmatively credited and relied on by the Court. The Court has made it very clear when specific evidence referred to is being rejected or discredited.

Fifth, parties should understand that every Exhibit and Prior Testimony cited in the Findings of Fact is deemed admitted into evidence. A formal Order, accompanying this Opinion, will be entered listing those hundreds (perhaps thousands) of Exhibit numbers and Prior Testimonies, overruling any objections made thereto.

Sixth, several observations need be made about witness bias and credibility. For the most part, each individual Chapter in the Findings of Fact explains why certain facts were found, why certain witnesses were credited, and why the testimony of certain witnesses was either discredited as just plain not believable or, in most instances, outweighed by other more convincing and credible evidence.

Most of the witnesses whose testimony was most vehemently attacked by the Defendants (such as Dr. David R. Kessler,

2

Dr. Michael C. Fiore, Dr. Jeffrey Wigand, and Dr. Cheryl Healton) were only relied upon for undisputed or relatively insignificant background facts (as with Dr. Kessler and Dr. Wigand), or testified about remedies which this Court could not consider on the merits under the Court of Appeals decision discussed above (as in the case of Dr. Fiore and Dr. Healton).

Much of the Defendants’ criticisms of Government witnesses focused on the fact that these witnesses had been long-time, devoted members of “the public health community.” To suggest that they were presenting inaccurate, untruthful, or unreliable testimony because they had spent their professional lives trying to improve the public health of this country is patently absurd. It is equivalent to arguing that all the Defendants’ witnesses were biased, inaccurate, untruthful, and unreliable because the great majority of them had earned enormous amounts of money working and/or consulting for Defendants and other large corporations, and therefore were so devoted to the cause of corporate America that nothing they testified to, even though presented under oath in a court of law, should be believed. Such simplistic attacks on the credibility of the sophisticated and knowledgeable witnesses who testified in this case are foolish.

All of this is not to deny that there were significant differences in the overall quali-

*31

fieations of the Government’s witnesses and the Defendants’ witnesses. There were. The Government’s witnesses, viewed as a whole, were far more experienced, credentialed, and active in the area of smoking and health, whatever their particular area of specialty, than were the Defendants’. Many of the Government experts had participated extensively, over many years, in the long and drawn-out process of ascertaining the consensus of scientific opinions embodied in each Surgeon General’s Report. Virtually every one had taught at a well-regarded academic institution and written numerous peer-reviewed articles in their particular area of specialty. Many of the Government witnesses continued “hands on,” clinical work in their fields despite heavy commitments for research, writing, teaching, and lecturing to their peers.

The Defendants’ witnesses were obviously well educated in.their areas of specialty. Indeed, as was mentioned on many occasions, Defendants even presented the testimony of an impressive Nobel Prize winner. However, rarely did these witnesses have the depth and breadth of experience of the Government witnesses. Many had worked only in large corporations, and many for only one or two such employers. Many — although not all — had written relatively few peer-reviewed articles. Many of the highest paid experts of Defendants, while well credentialed in their particular fields, such as economics, presented relatively narrow testimony tailored to the particular problem or issue they were retained to opine on for purposes of this litigation. A few of Defendants’ experts had done virtually no individual research and written virtually no peer-reviewed articles, and a few were unfamiliar with the relevant facts and/or the major scientific literature on the issue about which they testified.

While the testimony of each person— expert or fact witness — was evaluated on its own merits, there can be no denying

that,as a group,

the Government’s witnesses were far more knowledgeable, experienced, and active in their respective fields.

Finally, despite the length and detail of the Findings of Fact, the evidentiary picture must be viewed in its totality in order to fully appreciate how massive the case is against the Defendants, how irresponsible their actions have been, and how heedless they have been of the public welfare and the suffering caused by the cigarettes they sell.

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II. PROCEDURAL HISTORY

Plaintiff, the United States of America (“the Government”) brought this suit in 1999 against eleven tobacco-related entities (“Defendants”)

4

to recover health care

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expenditures the Government has paid or will pay to treat tobacco-related illnesses allegedly caused by Defendants’ unlawful conduct. The Government also asked this Court to enjoin Defendants from engaging in fraudulent and other unlawful conduct and to order Defendants to disgorge the proceeds of their past unlawful activity.

In its original Complaint, the Government made four claims against Defendants under three federal statutes. The first statute, the Medical Care Recovery Act (“MCRA”), 42 U.S.C. §§ 26512653 , provides the Government with a cause of action to recover certain specified health care costs it pays to treat individuals injured by a third-party’s tortious conduct (Count 1). The second statute is a series of amendments referred to as the Medicare Secondary Payer provisions (“MSP”), 42 U.S.C. § 1395y, which provides the Government with a cause of action to recover Medicare expenditures when a third-party caused an injury requiring treatment and a “primary payer” was obligated to pay for the treatment (Count 2). The third statute is the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (Counts 3 and 4), which provides private parties with a cause of action to recover treble damages due to injuries they received from a defendant’s unlawful racketeering activity and the government with a cause of action to seek other equitable remedies to prevent future unlawful acts. Joint Defendants moved to dismiss the case on all counts. On September 28, 2000, the Motion was granted in part and denied in part, and Counts 1 and 2 were dismissed.

United States v. Philip Morris, Inc.,

116 F.Supp.2d 131 (D.D.C.2000).

Continuing its case on Counts 3 and 4, the Government sought injunctive relief and $289 billion

5

in disgorgement of Defendants’ ill-gotten gains for what it alleges to be an unlawful conspiracy to deceive the American public.' The Government’s Amended Complaint describes a four-decade long conspiracy, dating back to at least 1953, to intentionally and willfully deceive and mislead the American public

about,inter alia,

the harmful nature of tobacco products, the addictive nature of nicotine, and harmfulness of low tar cigarettes. Amended Complaint (“Am.Compl.”) at ¶ 3. According to the Government, the underlying strategy Defendants adopted was to deny that smoking caused disease and to consistently maintain that whether smoking caused any kind of disease was still an “open question” for which no scientific consensus existed. ' Am. Compl. at ¶ 34. In furtherance of that strategy, Defendants allegedly issued deceptive press releases, published false and misleading articlés, destroyed and concealed documents which indicated that there was in fact a correlation between smoking and disease, and aggressively targeted children as potential

*33

new smokers. Am. Compl. at ¶ 36.

6

The parties engaged in intensive discovery for more than two years, with the assistance of Special Master Richard Levie overseeing disputes and issuing 172 Reports and Recommendations, the majority of which were appealed to this Court. During discovery, the parties exchanged over 4,000 requests for production of documents. Defendant alone made available to the Government over 26 million pages of documents. In addition, the parties each took over 1,000 hours of depositions. As discovery progressed and trial loomed, the Court held regularly scheduled and, when events necessitated it, irregularly scheduled status conferences and conference calls and oversaw the filing of many status reports and praecipes.

In addition, the parties filed, pursuant to limitations imposed by the Court, 18 summary judgment motions and countless motions in limine. The Court granted all of the Government’s Motions for partial summary judgment to dismiss Defendants’ Affirmative Defenses based on: (1) the assertion that the Federal Trade Commission had exclusive authority over Defendants’ marketing activities (Order #356); (2) waiver, equitable estoppel, laches, unclean hands and

in pari delicto

(Order # 476); (3) the assertion that the Government’s claims and remedies sought violated the 8th Amendment of the Constitution and the Ex Post Facto Clause (Order # 509); (4) the assertion that constitutional separation of powers precludes the Government’s claims (Order # 510); (5) the assertion that the RICO claims and relief sought are prohibited by the 10th Amendment of the Constitution and by separation of powers and that Defendants are not jointly and severally liable for any disgorgement ordered by the Court (Order # 538); and (6) res judicata, collateral es-toppel, release, accord and satisfaction, and mootness (Order # 586). In addition, the Court granted the Government’s Motions for partial summary judgment that each Defendant is distinct from the RICO enterprise (if the Court were to determine that there is an enterprise) and that a Defendants’ liability for a RICO conspiracy does not require that Defendant to participate in the operation or management of the Enterprise (Order # 591). All other summary judgment motions of the Government and the Defendants were denied because the existence of material facts in dispute rendered summary judgment inappropriate.

Upon resolution of all preliminary matters, trial began on September 21, 2004. Together, the parties presented eighty four witnesses and tens of thousands of exhibits. The trial lasted nine months.

On February 4, 2004, our Circuit rendered a decision on an interlocutory appeal from this case. Defendants had appealed this Court’s decision denying summary judgment as to the Government’s claim for disgorgement under 18 U.S.C.1964(a). (Order # 550). In that opinion, written by Judge David Sentelle, the Court of Appeals determined that disgorgement is not a permissible remedy in civil RICO cases.

United States of America v. Philip Morris USA Inc., et al.,

396 F.3d 1190 (D.C.Cir.2005). As a result, because $280 billion in disgorgement was the centerpiece of its requested relief, the Government moved for leave to reformulate their proposed remedies. The Court granted that motion. After the liability phase of the trial concluded, the parties were allowed to put on

*34

evidence pertaining to the remedies sought by the Government.

At the conclusion of the remedies trial, several entities and organizations moved to intervene in order to assert their interests in the proposed relief. The Court granted the Motions to Intervene for the following parties: American Cancer Society; American Heart Association; American Lung Association; Americans for Nonsmokers’ Rights; National African American Tobacco Prevention Network; and Tobacco-Free Kids Action Fund. These parties had a clear interest in advancing the public health and in the remedies proposed in this case.

In addition, the Court received numerous motions for leave to appear as amicus curiae, in support of the United States, from organizations who also wanted to assert their views on the appropriate and necessary remedies in this case. The Court granted the Motions of the following states and organizations because of their enormous collective knowledge and experience in the fields of public health, smoking, and disease: Arkansas; Connecticut; Hawaii; Idaho; Iowa; Kentucky; Louisiana; Maryland; Massachusetts; Nevada; New Jersey; New Mexico; New York; Ohio; Oklahoma; Oregon; Tennessee; Vermont; Washington; Wisconsin; Wyoming; and the District of Columbia.; Citizens’ Commission to Protect the Truth; Regents of the University of California; Tobacco Control Legal Consortium, including 18 additional nonprofit organizations; Essential Action; the City and County of San Francisco; the Asian Pacific Island American Health Forum; San Francisco African-American Tobacco Free Project; Black Network in Children’s Emotional Health.

7

On August 8, 2005, each side simultaneously submitted its 2,500 page Proposed Findings of Fact. As August turned into September, the Government filed its 250 page opening Post-trial brief; Defendants filed their 250 page opposition to the Government’s brief and their 50 page opening brief on affirmative defenses; the Government filed its 100 page reply brief and 50 page opposition to Defendants’ brief on affirmative defenses; and Defendants filed them 20 page reply brief on affirmative defenses.

The Court has issued 1010 Orders during the course of this arduous litigation. Some pundits have opined that this is the largest piece of civil litigation ever brought. The Court will leave that judgment to others.

FINDINGS OF FACT

III. CREATION, NATURE, AND OPERATION OF THE ENTERPRISE

8

The following Section sets forth in enormous detail the intricate, interlocking, and overlapping web of national and international organizations, committees, affiliations, conferences, research laboratories, funding mechanisms, and repositories for smoking and health information which Defendants established, staffed, and funded in order to accomplish the following goals: counter the growing scientific evidence that smoking causes cancer and other illnesses, avoid liability verdicts in the growing number of plaintiffs’ personal injury lawsuits against Defendants, and ensure

*35

the future economic viability of the industry.

A. Pre-1953 Overview-The Rise in American Smoking and the Status of Scientific Research on Smoking and Health

1. Tobacco usage in North America dates as far back to at least the 1600s when Christopher Columbus came to America and observed Native Americans smoking tobacco leaves. By the end of the 1800s, scientists observed a noticeable rise in the incidence of cigarette smoking, as well as a noticeable rise in the number of cases of lung cancer. Samet TT, 9/29/04, 1027: 5-13.

2. Prior to 1900, lung cancer was virtually unknown as a cause of death in the United States. By 1935, there were an estimated 4000 lung cancer deaths annually, and by 1945 that figure had almost tripled. VXA1601844-2232 at 1986 (U.S. 64057); Brandt WD, 31:16-32:1. Annual per capita consumption of cigarettes in 1900 was approximately forty-nine; by 1930 that figure had grown to 1300; by 1950, annual per capita consumption had skyrocketed to over 3000 cigarettes. Brandt WD, 32:2-17; Samet TT, 9/29/04, 1031:13-1033:25.

3. By the 1920s, scientists were beginning to investigate the relationship between the concomitant rise in cigarette consumption and lung cancer, and to focus on the health consequences of smoking. Brandt WD, 32:2-17.

Id.

For example, as early as 1928, researchers conducting a large field study associated heavy smoking with cancer. 2060544267-4274 (U.S. 39010). In 1931, Frederick L. Hoffman, a well-known statistician for the Prudential Insurance Company, linked smoking with cancer. VXA2510202-0219 (U.S. 63597). In 1938, a population biologist and biome-trician from Johns Hopkins Medical School, Raymond Pearl, published one of the first significant statistical analyses of the health impact of smoking and concluded that individuals who smoked could expect shorter lives. 503285883-5884 (U.S. 20714). In the 1930s, chest surgeons Alton Oschner and Richard Overholt published observations that the patients they saw with advanced lung malignancies were typically smokers. 85868807-8823 at 8807 (U.S. 63596). By the end of the 1940s and early 1950s, far more evidence linking smoking to disease began to appear, ranging from the ground-breaking statistical studies of two eminent British statisticians, Bradford Hill and Sir Richard Doll, to the Graham and Wynder studies at Washington University, to animal research studies pointing to the carcinogenicity of cigarettes.

9

4.The mainstream media began to pay attention to the growing scientific literature and report on the scientists’ findings. For example, in 1953 Readers Digest, which was at the time one of the most popular publications in the country, published a series of articles titled “Cancer by the Carton” which relayed the scientific findings of Drs. Wynder and Graham. The magazine quoted one of the conclusions they reached in their American Cancer Society study which had been published in the American Medical Association’s Journal of May 27,1950 (“JAMA”), namely that “Excessive and prolonged use of tobacco, especially cigarettes, seems to be an important factor in the induction of bron-chiogenic carcinoma.” 03358234-8235 at 8235 (U.S. 46459). Such mainstream media publicity in popular magazines such as Time, Life, and Reader’s Digest triggered understandable public concern. Brandt WD, 48:1-18.

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5. In short, by 1953, there had been a very substantial rise in the annual per capita consumption of cigarettes and the number of deaths attributable to lung cancer; scientists were more and more convinced that a relationship existed between cigarette smoking and lung cancer; and the public was growing increasingly aware of and anxious about both developments.

B. Creation of the Enterprise

6. In December 1953, Paul M. Hahn, President of Defendant American, sent telegrams to the presidents of the seven other major tobacco companies and one tobacco growers organization, inviting them to meet and develop an industry response to counter the negative publicity generated by the studies linking cigarette smoking and lung cancer. The telegrams were sent to: Edward A. Darr, President of Defendant Reynolds; Benjamin F. Few, President of Defendant Liggett; William J. Halley, President of Defendant Loril-lard; Timothy V. Hartnett, President of Defendant B & W; O. Parker McComas, President of Defendant Philip Morris; Joseph F. Cullman, Jr., President of Benson & Hedges; J.B. Hutson, President of Tobacco Associates, Inc.; and J. Whitney Peterson, President of United States Tobacco Co. 508775416-5416 (JD 041939); HT0072119-2125 (U.S. 21175), (U.S. 54357); CTRBYL000001-0014 (U.S. 21138); MNAT00609882-9886 (U.S. 59809).

7. Executives from every tobacco company listed above, with the exception of Liggett, met in New York City at the Plaza Hotel on December 14, 1953. The executives discussed (I) the negative publicity from the recent articles in the media, (ii) responding to the problem by jointly engaging a public relations counsel, and (iii) removing health themes from advertising. They also discussed Liggett’s decision not to attend the meeting because “in the course of time the whole thing would blow over.” The executives also authorized the five members of the group who had their offices in New York to engage the services of Hill

&

Knowlton on behalf of the whole committee; to meet with John Hill at the Plaza Hotel the next day, December 15th, to discuss the negative publicity problem; and to request that Hill

&

Knowlton, if it accepted the assignment, submit recommendations to the full committee at a subsequent meeting as to how to proceed. 6802622262228 (U.S. 88165); HT0072119-2125 (U.S. 21175); CTRBYL000001-0014 (U.S. 21138); Brandt WD, 50:21-51:23. It is clear from all the surrounding circumstances that representatives of Hill & Knowlton had been contacted about taking on this assignment prior to December 14,1953.

8.The tobacco company executives did not meet, as they have suggested,in an altruistic response to requests from the scientific community that the industry fund research on smoking and health. Rather, they convened a strategy meeting of the highest company officials to formulate an industry-wide response (a) to the public’s growing anxiety generated by the negative publicity about the direction of scientific research on cigarettes and cancer, and (b) to what they accurately understood to be a major threat to their corporations’ economic future. While it is true that there was a recommendation “to do good science, independent science,” Brandt TT, 9/27/04, 740:15-17, the minutes of the meeting reveal that:

It was recommended that this [research] group undertake to enlist the cooperation of the National Institutes of Health of the U.S. Public Health Service in working out a program of scientific investigation through which the facts in the present controversy would be developed. This was considered highly advis

*37

able in that it would give to the program an aspect of independence to the program to a degree not obtainable in any other way.

(no bates) (U.S. 88165 at 68026227).

9. At the December 14, 1953 meeting, Paul Hahn of American and Timothy Hart-nett of B & W told the other company presidents that

they had taken definite steps to remove the health themes from the advertising programs on Pall Mall and Viceroy. Darr [of Reynolds] made the point that he could not concur in sponsoring an industry paid advertising campaign (if this is the course recommended by the Public Relations Counsel) as long as the health theme continued to be featured by any one of the companies represented on the committee.

J. Whitney Peterson of United States Tobacco and Hartnett “expressed their agreement with Mr. Darr’s views in this matter.” Hill & Knowlton wanted to develop some understanding with the Defendants that

none is going to seek a competitive advantage by inferring to its public that

its

product is less risky than others. (No claims that special filters or toasting, or expert selection of tobacco, or extra length in the butt, or anything else, makes a given brand less likely to cause you-know-what. No “Play-Safe-with-Luekies.)”

TLT0901532-1540 at 1539-1540 (U.S. 87224) (emphasis in original); 680262226-2228 (U.S. 88165); TLT0900422-0430 at 0423 (U.S. 88169); TLT0901564-1572 at 1565 (U.S. 88194); TLT0901541-1545 at 1543 (U.S. 87225); 2048375960-5964 (U.S. 85819); JH000493-0501 at 0500-0501 (U.S. 21179).

10. At the December 15, 1953 meeting, the participants were Paul Hahn of American, O. Parker McComas of Philip Morris, Joseph Cullman, Jr. of Benson & Hedges, J. Whitney Peterson of United States Tobacco, and representatives from Hill & Knowlton, including John Hill and Bert Goss. Hill

&

Knowlton was told that the industry viewed the “problem [posed by the scientific studies] as being extremely serious and worthy of drastic action.” JH000502-0506 at 0504 (U.S. 20191); TLT0901541-1545 at 1543 (U.S. 87225). According to a Hill & Knowlton memo dated December 22, 1953, the public relations firm was asked to

develop suggestions for dealing with the public relations problem confronting the industry as a result of widely publicized assertions by a few medical research men regarding the link between cigarette smoking and lung cancer.

TLT0901552-1552 (U.S. 88192).

11.In an internal planning memoran-da, Hill

&

Knowlton assessed their tobacco clients’ problems in the following manner:

There is only one problem' — confidence, and how to establish it; public assurance, and how to create it — in a perhaps long interim when scientific doubts must remain. And, most important, how to free millions of Americans from the guilty fear that is going to arise deep in their biological depths — regardless of any pooh-poohing logic — every time they light a cigarette. No resort to mere logic ever cured panic yet, whether on Madison Avenue, Main Street, or in a psychologist’s office. And no mere recitation of arguments pro, or ignoring of arguments con, or careful balancing of the two together, is going to deal with such fear now. That, gentlemen, is the nature of the unexampled challenge to this office.

JH000493-0501 (U.S. . 21408); TLT0901532-1540 at 1534 (U.S. 87224); Brandt WD, 53:16-54:10.

*38

12. Ten days later, on December 24, 1953, Hill & Knowlton submitted a proposal regarding the tobacco industry’s public relations campaign, recommending that the companies form a joint industry research committee that would sponsor independent scientific research on the health effects of smoking and announce the formation of the research committee nationwide as news and in advertisements. Hill & Knowlton also recommended that the companies fund objective research by scientists who were independent of the tobacco industry, and that an advisory board be established composed of a group of distinguished scientists from the fields of medicine, research and education “whose integrity is beyond question.” 01138856-8864 (JE 20036); TLT0900422-0430 (U.S. 88169); TLT0901564-1572 (U.S. 88194);

see also

TLT0901546-1549 (U.S. 88191); TLT0901552 (U.S. 88192).

13. In its proposal, Hill & Knowlton expressed its concern about the “health” claims being made in the Defendants’ advertising:

[I]t is impossible to overlook the fact that some of the industry’s advertising has come in for serious public criticism because of emphasis on health aspects of smoking ... it must be recognized that some of the advertising may have created a degree of skepticism in the public mind which at the start at least could affect the believability of any public relations effort.

In fact, one of the questions posed by Hill & Knowlton to the Defendants was-

whether the companies considered] that their own advertising and competitive practices have been a principal factor in creating a health problem? The companies voluntarily admitted this to be the case even before the question was asked. They have informally talked over the problem and will try to do something about it.

680262226-2228 (U.S. 88165); TLT0900422-0430 at 0423 (U.S. 88169); TLT0901564-1572 at 1565 (U.S. 88194); TLT0901541-1545 at 1543 (U.S. 87225); 2048375960-5964 (U.S. 85819).

14.Four days later, on December 28, 1953, another meeting was held at the Plaza Hotel and was attended by Paul Hahn of American; Edward Darr of Reynolds; Herbert A. Kent, Chairman of Loril-lard; Timothy Hartnett of B

&

W; O. Parker McComas of Philip Morris; Joseph Cullman of Benson

&

Hedges; J.B. Hut-son, President of Tobacco Associates, Inc.; J. Whitney Peterson of United States Tobacco; and three people from the public relations firm of Hill & Knowlton, John Hill, Bert Goss, and Richard Darrow. The attendees agreed on Tobacco Industry Research Committee (“TIRC”) as the official name of the research committee; chose Paul Hahn as temporary chairman of the committee; agreed that the search should begin immediately for a qualified director who, together with the companies’ research directors, would recommend members for the research advisory board; and reviewed and accepted the Hill & Knowl-ton proposal regarding the tobacco industry’s public relations campaign. TLT0901411-1414 (U.S. 88188); 01138856-8864 (JE 20036). ■ The attendees also agreed on a mission statement for the new organization which stated that its “purposes and objectives” were

to aid and assist research into tobacco use and health, and particularly into the alleged relationship between the use of tobacco and lung cancer, and to make available to the public factual information on this subject.

(no bates) (JD 000294 at 70103757). Hill & Knowlton played a major role in creating, refining, and implementing the strate

*39

gies adopted by the participants at the December meetings.

15. Although Defendant Liggett did subsequently participate in Enterprise activities, Liggett did not participate in the December meetings because, at the time, the company believed that “the proper procedure is to ignore the whole controversy.” JH000502-0506 at 0502 (U.S. 20191); TLT0901541-1545. at 1541 (U.S. 87225).

16. Following Hill & Knowlton’s advice, the formation and purpose of TIRC was announced on January 4, 1954, in a full-page advertisement called “A Frank Statement to Cigarette Smokers” published in 448 newspapers throughout the United States. All sponsoring cigarette manufacturers and other tobacco industry entities were clearly identified. McAllister PD,

United States v. Philip Morris,

5/23/02, 112:14-114:13; McAllister WD, 9:10-22; 11309817-9817 (U.S. 20277); 86017454-7454 (U.S. 21418); USX6390001-0400 at 0004 (U.S. 89555); TLT0900465-0465 (U.S. 88171);

see also

TLT0900478-0480 (U.S. 88440); TLT0900481-0483 (U.S. 88441).

17. The Frank Statement was subscribed to by the following domestic cigarette and tobacco product manufacturers, organizations of leaf tobacco growers, and tobacco warehouse associations that made up TIRC: Defendant American by Paul Hahn, President; Defendant B & W by Timothy Hartnett, President; Defendant Lorillard by Herbert Kent, Chairman; Defendant Philip Morris by O. Parker McCo-mas, President; Defendant Reynolds by Edward A. Darr, President; Benson & Hedges by Joseph Cullman, Jr., President; Bright Belt Warehouse Association by F.S. Royster, President; Burley Auction-Warehouse Association by Albert Clay, President; Burley Tobacco Growers Cooperative Association by John Jones, President; Larus

&

Brother Company, Inc. by W.T. Reed, Jr., President; Maryland Tobacco Growers Association by Samuel Linton, General Manager; Stephano Brothers, Inc. by C.S. Stephano, Director of Research; Tobacco Associates, Inc. by J.B. Hutson, President; and United States Tobacco by J. Whitney Peterson, President. 113098179817 (U.S. 20277); 86017454-7454 (U.S. 21418); HT0072119-2125 (U.S. 21175); CTRBYL0000010014 (U.S. 21138).

18. The Frank Statement set forth the industry’s “open question” position that it would maintain for more than forty years — that cigarette smoking was not a proven cause of lung cancer; that cigarettes were not injurious to health; and that more research on smoking and health issues was needed. In the Frank Statement, the participating companies accepted “an interest in people’s health as a basic responsibility, paramount to every other consideration in our business” and pledged “aid and assistance to the research effort into all phases of tobacco use and health.” The companies promised that they would fulfill the obligations they had undertaken in the Frank Statement by funding independent research through TIRC, free from any industry influence. 11309817-9817 (U.S. 20277); 86017454-7454 (U.S. 21418).

19. The “Frank Statement” in its entirety stated as follows:

RECENT REPORTS on experiments with mice have given wide publicity to a theory that cigarette smoking is in some way linked with lung cancer in human beings.

Although conducted by doctors of professional standing, these experiments are not regarded as conclusive in the field of cancer research. However, we do not believe that any serious medical research, even though its results are inconclusive should be disregarded or lightly dismissed.

*40

At the same time, we feel it is in the public interest to call attention to the fact that eminent doctors and research scientists have publicly questioned the claimed significance of these experiments.

Distinguished authorities point out:

1. That medical research of recent years indicates many possible causes of lung cancer.

2. That there is no agreement among the authorities regarding what the cause is.

3. That there is no proof that cigarette smoking is one of the causes.

4. That statistics purporting to link cigarette smoking with the disease could apply with equal force to any one of many other aspects of modern life. Indeed the validity of the statistics themselves is questioned by numerous scientists.

We accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business.

We believe the products we make are not injurious to health.

We always have and always will cooperate closely with those whose task it is to safeguard the public health.

For more than 300 years tobacco has given solace, relaxation, and enjoyment to mankind. At one time or another during these years critics have held it responsible for practically every disease of the human body. One by one these charges have been abandoned for lack of evidence.

Regardless of the record of the past, the fact that cigarette smoking today should even be suspected as a cause of disease is a matter of deep concern to us.

Many people have asked us what are we going to do to meet the public’s concern aroused by the recent reports. Here is the answer:

1. We are pledging aid and assistance to the research effort into all phases of tobacco use and health. This joint financial aid will of course be in addition to what is already being contributed by individual companies.

2. For this purpose we are establishing a joint industry group consisting initially of the undersigned. This group will be known as TOBACCO INDUSTRY RESEARCH COMMITTEE [“TIRC”].

3. In charge of the research activities of the Committee will be a scientist of unimpeachable integrity and national repute. In addition there will be an Advisory Board of scientists disinterested in the cigarette industry. A group of distinguished men [sic] from medicine, science, and education will be invited to serve on this Board. These scientists will advise the Committee on its research activities.

This statement is being issued because we believe the people are entitled to know where we stand on this matter and what we intend to do about it.

11309817-9817 (U.S. 20277); 86017454-7454 (U.S. 21418); TLT0901611-1611 (U.S. 88196); Brandt WD, 55:8-21.

20. The issuance of the “Frank Statement to Cigarette Smokers,” was an effective public relations step. By promising the public that the industry was absolutely committed to its good health, the Frank Statement allayed the public’s concerns about smoking and health, reassured smokers, and provided them with an effective rationale for continuing to smoke. Brandt WD, 54:20-55:7; JH000493-0501 (U.S. 21179), (U.S. 21408); TLT0901532-1540 at 1534 (U.S. 87224).

*41

C. TIRC/CTR - Tobacco Industry Research Committee/Council for Tobacco Research-USA

21. With the creation of TIRC in January 1954, the Defendants established a sophisticated public relations vehicle— based on the premise of conducting independent scientific research — to deny the harms of smoking and reassure the public. That essential strand of their long-range strategy was developed and implemented in 1953-54, and guided their activities for more than forty years. Brandt WD, 61:23-62:7.

22. In response to an inquiry by Stanley Barnes, Assistant Attorney General, United States Department of Justice on January 21, 1954, TIRC Chairman Paul Hahn sent a letter to Barnes dated January 26, 1954, enclosing a statement of the origin, purpose, and proposed functions of TIRC. The purposes and objectives of TIRC as recorded in the Statement Concerning the Origin and Purpose of TIRC were

to aid and assist research into tobacco use and health, and particularly into the alleged relationship between the use of tobacco and lung cancer, and to make available to the public factual information on this subject.

508775382-5382 (JD 090191); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181); McAllis-ter WD, 28:14-29:1; Zahn PD,

Cipollone v. Liggett,

12/16/86, 51:24-52:6, 53:9-12 at 0005-0007 (U.S. 89555).

23. The statement of origin and purpose was signed in the name of TIRC by Chairman Paul Hahn, was ratified and adopted by TIRC, and attached as Exhibit A to the Bylaws of the Tobacco Industry Research Committee. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175), (U.S. 54357); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181). All of the bylaws could be altered and repealed by a majority vote of TIRC’s corporate members, except “Article I. Purposes and Objectives” which could only be altered with the unanimous consent of all the corporate members. CW00787817-7842 at 7817, 7822 (U.S. 21420); CTRBYL000001-0014 at 0001, 0006 (U.S. 21138).

24. The statement of origin and purpose stated that TIRC had engaged the public relations firm of Hill & Knowlton to assist TIRC in effectuating its purpose. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181); TLT0900723-0728 (U.S. 88179);

see also

USX6390001-0400 at 0012 (U.S. 89555).

25. The TIRC bylaws stated that each corporate member of the TIRC “shall from time to time appoint an individual to serve as the personal member of the Committee representing such corporate member” and that a majority of the personal members of TIRC would select such officers, agents, and employees as they deemed necessary, including a Chairman to serve for a term of one year and until his successor is elected and qualified. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138).

26. The first officers selected by TIRC members were: Paul Hahn of American as temporary Chairman; J. Whitney Peter

*42

son of United States Tobacco as Vice Chairman; Joseph Cullman of Benson

&

Hedges as Treasurer; and Wilson Thomas (“W.T.”) Hoyt of Hill

&

Knowlton as Secretary. CW00787817-7842 (U.S. 21420); CTRBYL000001-0014 (U.S. 21138); 70103754-3761 (JD 000294); MTD0030448-0455 (U.S. 21218); 70103755-3761 (JD 043064); HT0072119-2125 (U.S. 21175); TIMN0116378-6384 (U.S. 21277); TLT0901026-1035 (U.S. 88181).

27. TIRC bylaws described the method of funding TIRC as follows:

Each of the cigarette manufacturing corporate members has pledged to the Committee for payment before or during 1954 an amount equal to 1/4 of a cent for each one thousand of tax-paid cigarettes produced by such company in 1953 as estimated by Harry M. Wootten and published under the date of January 15, 1954, and has pledged to the Committee for payment during 1954 an additional amount equal to one-half of the amount originally pledged.

CW00787817-7842 at 7819 (U.S. 21420); CTRBYL000001-0014 at 0003 (U.S. 21138).

28. At its January 29, 1964 meeting, the TIRC Executive Committee agreed to change the name of the organization to the Council for Tobacco Research-U.S.A. (“CTR”). 93218985-8986 (U.S. 21116). The organization bylaws were amended February 1, 1964, to reflect the name change. Although the name changed, the purposes, objectives, and functions of the organization did not. According to the amended bylaws, the purposes and objectives of CTR remained the same, i.e.

to aid and assist research into tobacco use and health, and particularly into the alleged relationship between the use of tobacco and lung cancer and to make available to the public factual information on this subject.

682631364-1368 (U.S. 21024); CW00787817-7842 at 7831-7835 (U.S. 21420);

see also

USX63900010400 at 0002 (CTR Response to Request for Admission No. 82). Timothy Hartnett announced the organization name change in a March 1964 press release. 508775085-5088 (U.S. 20815); HK1865014-5017 (U.S. 77847).

29. Robert Heimann, Chairman and Chief Executive Officer of American, commented upon the TIRC’s name change in a December 6, 1977 letter to Addison Yea-man, CTR’s Chairman and President and formerly the General Counsel of B & W:

[W]e decided some years ago to rename T.I.R.C. “The Council for Tobacco Research” because “Tobacco Industry Research Committee” sounded too much like industry-directed, as distinct from independent, research.

2022200158-0160 at 0160 (U.S. 87532).

30. In 1971, CTR changed from an unincorporated association to a corporation pursuant to the laws of the State of New York. CTR’s Certificate of Incorporation was filed with the Department of State of the State of New York on January 8, 1971. The bylaws of the newly-formed corporation were adopted at the first meeting of CTR’s Board of Directors on January 13, 1971. CTRMIN-BD000001-0303 at 0002 (JD 093208); CTRINC000001-0019 (JD 090053); McAllister WD, 10:7-14.

31. Following incorporation, CTR was divided into two classes of members, Class A and Class B. Class A members were: (1) designated by the Board of Directors; (2) domestic persons who sold cigarettes in the United States; and (3) manufacturers of their own brand of cigarettes. Class A members included American Tobacco, B

&

W, Lorillard, Philip Morris, Reynolds, and United States Tobacco. Class B members were: (1) designated by the Board of Directors; and (2) a person, corporation, as

*43

sociation, or partnership not eligible for Class A membership but involved in the production, manufacturing, and distribution of cigarettes. Class B members included Bright Belt Warehouse Association, Burley Auction Warehouse Association, Burley Tobacco Growers, Imperial Tobacco, Tobacco Associates, and United States Tobacco. CTRBYL000031-0049 (JD 090055); CTRMIN-BD000001-0303 at 0003 (JD 093208); 512678857-8863 (U.S. 30046).

32. In 1963, Clarence Cook Little and W.T. Hoyt invited Liggett to join TIRC in order to secure complete industry cooperation in dealing with the 1963 Surgeon General’s Advisory Committee. Liggett declined the invitation but, in its response, assured its cooperation: “[T]he aims of all of us are the same and the path that we [Liggett] have followed has been similar to that of the Committee in may respects.” RC6007182-7183 (LI 142).

33. Liggett became a member of CTR in 1964 and resigned in 1968, but continued to participate in CTR activities for decades. In its January 1968 resignation letter, Liggett’s President stated “we will continue to participate in defraying the cost of [CTR] Special Projects sponsored by the Council after evaluation of each Project on an individual basis.” CTR-TIRC-MIN000238-0244 at 0241 (U.S. 33023). Liggett made contributions to CTR’s Special Projects fund from 1966 through 1975 and to CTR’s Literature Retrieval Division from 1971 through 1983. DXA0630917-1033 at 1024-1025 (U.S. 75927). Liggett was also asked to attend scientific meetings at CTR. 044227839-7842 (U.S. 20066); LWDOJ9055586-5587 (U.S. 26007) (Confidential).

34. Representatives of Liggett attended CTR meetings at which CTR Class A members, CTR Class B members, CTR officers, CTR public relations counsel, tobacco industry attorneys, and other representatives of cigarette manufacturers and the Tobacco Institute were present. CTRMIN-MOM000001-0015 (U.S. 21145); CTRMIN-MOM000053-0069 (U.S. 32617).

35. Although Defendant BATCo was not a member of TIRC or CTR, communication and contact between high level smoking and health research scientists at BATCo and scientists at TIRC/CTR was frequent and direct. BATCo scientists, including David G. Felton, Lionel C.F. Blackman, and R.E. Thornton, visited TIRC/CTR several times over the years. TINY0003106-3116 (U.S. 21369); 105408490-8499 (U.S. 21135); 517002090-2091 (U.S. 66527).

36. For example, in 1958, three British scientists, D.G.I. (David) Felton of BATCo, W.W. Reid of BATCo-Australia, and H.R. (Herbert) Bentley of Imperial Tobacco, visited the United States for four weeks and met with members of TIRC’s Scientific Advisory Board, as well as with representatives of Defendants TIRC/CTR, American, Liggett, and Philip Morris. TINY00031063116 (U.S. 21369); 105408490-8499 (U.S. 21135), (U.S. 76169); Brandt WD, 94:8-95:3.

37. In October 1979, David Felton of BATCo went on a month-long “fact-finding mission to a number of laboratories engaged in research relating to smoking and health” in the United States. Felton was accompanied by two lawyers for most of his visits, either Patrick Sirridge of Shook, Hardy & Bacon or Timothy Finnegan of Jacob

&

Medinger. Near the end of the trip, Felton met with CTR executives and employees, including Addison Yeaman, CTR President; William Gardner, CTR Scientific Director; W.T. Hoyt, CTR Executive Vice President; Robert Hockett, CTR Research Director; Vincent Lisanti, CTR Associate Research Director; and David Stone and Donald Ford, members of

*44

CTR’s scientific staff. Discussions included CTR contract research, nitrosamines, smoking and stress, and nicotine research. During his visit, Felton also met with Tobacco Institute representatives Horace Kornegay, President, and Marvin Kastenb-aum, Director of Statistics. 109879229-9295 (U.S. 34923); 109879296-9308 (U.S. 86063).

38. Defendants met frequently to discuss issues facing the Enterprise. Beginning in 1954 and until 1970, representatives of member companies met regularly with TIRC/CTR staff. After CTR’s incorporation, in 1971 and until 1999, the Enterprise met annually at CTR’s meetings of members. At these meetings, representatives of the Enterprise discussed activities of CTR which furthered their goals such as Special Projects, the Literature Retrieval Division, contract research, public relations, the TIRC/CTR Scientific Advisory Board, and scientific conferences. CTR-TIRCMIN000001-0252 (JD 093292); CTR-TIRC-MIN000033-0052 (U.S. 33006); CTRTIRC-MIN000174-0186 (U.S. 33016); CTR-TIRC-MIN000224-0231 (U.S. 33021); CTRTIRC-MIN00023-0244 (U.S. 33023); CTR-TIRC-MIN000245-0255 (U.S. 33024); 1002608337-8339 (U.S. 85989); MM0010053-0056 (U.S. 85990); CTRMIN-MOM000001-000015 (U.S. 21145); CTRMIN-MOM000016-0034 (U.S. 21170); CTRMIN-MOM000035-0052 (U.S. 32616); CTRMIN-MOM000053-0069 (U.S. 32617); CTRMIN-MOM000070-0087 (U.S. 32618); CTRMIN-MOM000088-0089 (U.S. 32619); CTRMIN-MOM000090-0104 (U.S. 32620); CTRMIN-MOM000105-0117 (U.S. 32621); CTRMIN-MOM000129-0142 (U.S. 32623); CTRMIN-MOM000143-0154 (U.S. 32624); CTRMIN-MOM000155-0167 (U.S. 32625); CTRMIN-MOM000168-0181 (U.S. 32626); CTRMIN-MOM000182-0195 (U.S. 32627); CTRMIN-MOM000210-0221 (U.S. 32629); CTRMIN-MOM000222-0233 (U.S. 32630); CTRMIN-MOM000234-0244 (U.S. 32631); CTRMIN-MOM000245-0255 (U.S. 32632); CTRMIN-MOM000256-0268 (U.S. 32633); CTRMIN-MOM000269-0280 (U.S. 32634); CTRMIN-MOM000281-0294 (U.S. 32635); CTRMIN-MOM000295-0306 (U.S. 32636); CTRMIN-MOM000307-0318 (U.S. 32637); CTRMIN-MOM000319-0331 (U.S. 32638); CTRMIN-MOM000332-0334 (Ex. 32639); 70000261-0274 (U.S. 31078); 70005388-5408 (U.S. 31104); CW00800809-0811 (U.S. 31368); TLT0901390-1393 (U.S. 88186); TLT0901400-1410 (U.S. 88187); JH000395-0400 (U.S. 21178); TLT0901411-1414 (U.S. 88188).

39. Members of the Enterprise also convened regularly between 1971 and 1998 at CTR’s Board of Directors meetings. CTR’s Board of Directors was made up of representatives from the member companies. At these meetings the CTR Board of Directors discussed and passed resolutions regarding issues such as CTR’s budget, the status of grants and contract research, the election of officers, payment of dues, and amendments to the bylaws. In addition to Board members, attendees at the meetings included other corporate offices and executives from the tobacco companies, Defendants’ legal counsel and public relations counsel, and representatives from the Tobacco Institute. CTRMIN-BD000017-0020 (U.S. BD000021-0025 (U.S. BD000026-0029 (U.S. BD000030-0034 (U.S. BD000035-0038 (U.S. BD000039-0044 (U.S. BD000045-0049 (U.S. BD000050-0054 (U.S. BD000055-0059 (U.S. BD000060-0109 (U.S. BD000110-0115 (U.S. BD000116-0121 (U.S. BD000122-0125 (U.S. BD000126-0129 (U.S. 32572); CTRMIN-32573); CTRMIN-32574); CTRMIN-32575); CTRMIN-32576); CTRMIN-32577); CTRMIN-32578); CTRMIN-32579); CTRMIN-32580); CTRMIN-32581); CTRMIN-32582); CTRMIN-32583); CTRMIN-32584); CTRMIN-32585); CTRMIN-

*45

BD000135-0135 (U.S. 32586); CTRMIN-BD000136-0140 (U.S. 32587); CTRMIN-BD000141-0144 (U.S. 32588); CTRMIN-BD000145-0146 (U.S. 32589); CTRMIN-BD000147-0152 (U.S. 32590); CTRMIN-BD000153-0157 (U.S. 32591); CTRMIN-BD000158-0162 (U.S. 32592); CTRMIN-BD000163-0165 (U.S. 32593); CTRMIN-BD000172-0178 (U.S. 32595); CTRMIN-BD000179-0182 (U.S. 32596); CTRMIN-BD000187-0191 (U.S. 32597); CTRMIN-BD000192-0194 (U.S. 32598); CTRMIN-BD000200-0229 (U.S. 32600); CTRMIN-BD000230-0235 (U.S. 32601); CTRMIN-BD000236-0237 (U.S. 32602); CTRMIN-BD000238-0245 (U.S. 32603); CTRMIN-BD000246-0247 (U.S. 32604); CTRMIN-BD000248-0251 (U.S. 32605); CTRMIN-BD000252-0255 (U.S. 32606); CTRMIN-BD000256-0260 (U.S. 32607); CTRMIN-BD000261-0262 (U.S. 32608); CTRMIN-BD000263-0267 (U.S. 32609); CTRMIN-BD000268-0270 (U.S. 32610); CTRMIN-BD000271-0275 (U.S. 32611); CTRMIN-BD000276-0277 (U.S. 32612); CTRMIN-BD000278-0283 (U.S. 32613); CTRMIN-BD000284-0285 (U.S. 32614); CTRMIN-BD000286-0291 (U.S. 32615); 70000636-0638 (JE 31084); 70000275-0279 (U.S. 31080); 70001297-1298 (U.S. 31095); 70005382-5387 (JE 31103); 70005409-5416 (JE 31106); CTRMIN-BD000001-000303 (JD 093208); ARU1130828-0904 (U.S. 86773); Kornegay PD,

Cipollone v. Liggett,

8/17/84,195:21-196:7.

40. While Philip Morris Companies was not a Class A member of CTR, Philip Morris Companies executives attended and participated in meetings of the CTR Board of Directors from 1985 to 1992. These executives included Thomas Ahrensfeld, Senior Vice President and General Counsel; Murray Bring, Senior Vice President and General Counsel; Hugh Cullman, Vice Chairman of the Board; Alexander Holtz-man, Vice President and Associate General Counsel; John Murphy, President and CEO; and R. William Murray, President, CEO, and Vice Chairman of the Board. CTRMIN-BD000001-000303 at 0187, 0192, 0195, 0200, 0230, 0236, 0238, 0246, 0248, 0252, 0256, 0261, 0263, 0268 (JD 093208).

41. Lorraine Pollice, CTR Corporate Secretary and Treasurer for over twenty years, attended CTR Board of Directors Meetings and CTR Annual Member Meetings, and personally prepared minutes of those meetings. Pollice WD, 6:14-7:22; 7:23-12:12. Although the minutes of meeting after meeting show participation by Altria representatives, Pollice expressed confusion and uncertainty about the precise corporate affiliation of particular participants.

See, e.g.,

CTRMINBD000187-0191 (U.S. 32597); CTRMIN-BD000200-0229 (U.S. 32600); CTRMIN-BD000230-0235 (U.S. 32601); CTRMIN-BD000236-0237 (U.S. 32602); CTRMIN-BD000238-0245 (U.S. 32603); CTRMIN-BD000246-0247 (U.S. 32604); CTRMIN-BD000248-0251 (U.S. 32605); CTRMINBD000252-0255 (U.S. 32606); CTRMIN-BD000256-0260 (U.S. 32607); CTRMIN-BD000261-0262 (U.S. 32608); CTRMIN-BD000263-0267 (U.S. 32609); CTRMIN-BD000268-0270 (U.S. 32610); CTRMIN-MGM000222-0233 (U.S. 32630); CTRMIN-MOM000234-0244 (U.S. 32631); CTRMINMOM000245-0255 (U.S. 32632); CTRMIN-MOM000256-0268 (U.S. 32633); CTRMINMOM000269-0280 (U.S. 32634); CTRMIN-MOM000281-0294 (U.S. 32635); CTRMINMOM000295-0306 (U.S. 32636); CTRMIN-MOM000307-0318 (U.S. 32637). Her testimony is simply not credible since it was directly contrary to the documents themselves, which were never corrected by Pollice herself or by former CTR presidents or by outside counsel for CTR who reviewed and finalized the minutes. Pol-lice WD, 6:1-25; Pollice TT, 10/04/04, 01526:22-01527:14; Pollice TT, 10/04/04, 01528:19-01529:1.

*46

42. From 1954 through October 31, 1999, payments to CTR’s General Fund from Defendants totaled $473,369,512.22; $31,928,239.26 from American; $67,666,080.25 from B & W; $40,747,457.89 from Lorillard; $189,506,678.86 from Philip Morris; $141,890,169.04 from Reynolds; and $721,868.85 from Liggett. DXA0630917-1033 at 1017-1023 (U.S. 75927); USX6390001-0400 at 0008 (U.S. 89555).

43. From 1966 through October 31, 1990, payments to CTR’s Special Projects fund (discussed at Section 111(E)(2), infra) totaled $18,270,623.65, which included: $29,665.00 from American; $2,571,345.40 from B & W; $144,254.75 from Liggett; $1,638,490.68 from Lorillard; $5,837,923.49 from Philip Morris; and $6,029,255.33 from Reynolds. DXA0630917-1033 at 1024 (U.S. 75927) (CTR Response to First Set of Interrogatories, Schedule C).

44.From 1971 through April 15, 1983, payments to CTR’s Literature Retrieval Division (discussed at Section III(G),

infra

) totaled $16,870,480.00, which included: $2,214,135.00 from American; $2,681,358.00 from B & W; $606,043.50 from Liggett; $811,840.50 from Lorillard; $4,813,415.50 from Philip Morris; and $5,743,687.50 from Reynolds. DXA0630917-1033 at 1025 (U.S. 75927) (CTR Response to First Set of Interrogatories, Schedule C).

1. Selection and Approval of TIRC’s Scientific Advisory Board Members and Scientific Director

45.The first formal meeting of TIRC was held on January 18, 1954. At this first formal meeting, a budget of $1,200,000 was approved; an agreement between TIRC and Hill & Knowlton was approved; the research program, calling for a Scientific Director and a Scientific Advisory Board (“SAB”) was approved; a Law Committee was appointed; and the research directors of TIRC member companies were designated as the Industry Technical Committee (“ITC”) (discussed further at Section 111(F)(2), infra). CTR-TIRC-MIN000001-000252 at 0001-0004, 0018-0032 (JD 093292); ARU1130828-0904 (U.S. 86773); TLT0901400-1410 (U.S. 88187); JH000395-0400 (U.S. 21178).

46. The Law Committee was composed of Chairman George Whiteside of Chad-bourne, Parke, Whiteside, Wolf

&

Brophy; John Vance Hewitt of Conboy, Hewitt, O’Brien & Boardman; Leighton Coleman of Davis, Polk, Wardwell, Sunderland

&

Kiendl; F.R. Wadlinger of Foulk, Porter

&

Wadlinger; and Freeman Daniels of Perkins, Daniels

&

Perkins. This committee drafted the TIRC bylaws. CTR-TIRC-MIN000001-000252 at 0001, 0006, 0021 (JD 093292); CTRMN039046-9106 at 9069 (JD 092825).

47. On January 7, 1954, the ITC held an informal meeting at which its members discussed qualifications for a Scientific Research Director for TIRC and efforts to find and retain a suitable scientist. The research directors were H.R. Hanmer of American; Irwin W. Tucker of B & W; H.B. Parmele of Lorillard; Robert N. Du-Puis of Philip Morris; Grant Clarke of Reynolds; Hugh Cullman of Benson

&

Hedges; Clinton Baber of Larus & Brother; C.S. Stephano of Stephano Brothers; and Ward B. Bennett of United States Tobacco. CTRMN039046-9106 at 9070, 9076 (JD 092825); TLT0901400-1410 (U.S. 88187); CTRMIN-ITC000009-0011 (JD 095519); JH000395-0400 (U.S. 21178).

48. At the January 7,1954 meeting, the ITC members agreed that the TIRC Research Director should be a medical doctor, recognized in cancer research, and with experience in chemistry. The ITC nominated persons for the position of TIRC Research Director, and a subcom

*47

mittee of the ITC, headed by Grant Clarke, Research Director for Reynolds, was appointed to process and screen the list of nominees. TLT0901400-1410 at 1404 (U.S. 88187); JH000395-0400 at 0399 (U.S. 21178).

49. At the March 15, 1954 meeting of TIRC, Chairman Paul Hahn of American, outlined the difficulties encountered in obtaining a Scientific Research Director, and suggested that SAB members be appointed before the Research Director so that they could then assist in selecting a Research Director. TLT0902041-2064 at 2043 (U.S. 88360). The ITC was directed to draw up a suggested list of names for the SAB with the assistance of Hill & Knowlton. TIRC appointed a subcommittee to select scientists to be invited to become members of SAB. CTR-TIRC-MIN000001-000252 at 0005-0006 (JD 093292); TLT0903093-3094 (U.S. 88363); USX6390001-0400 at 0011-0012 (U.S. 89555) (CTR Response to Request for Admission No. Ill); ARU1130828-0904 at 0884-0890 (U.S. 86773) (CTR Response to Interrogatory No. 12).

50. The ITC, public relations counsel Hill

&

Knowlton, and the Law Committee were actively involved in searching for, interviewing, and selecting the scientists appointed to the first SAB. TLT0902041-2064 at 2043 (U.S. 88360); TLT0903093-3094 (U.S. 88363). The ITC screened the candidates being considered for membership on the SAB. 681879254-9715 at 9649 (U.S. 21020).

51. Letters were sent to nine scientists inviting them to become members of the SAB, and acceptances were eventually obtained from seven. Their specialities included pathology, pharmacology, surgery, and statistics. The two scientists who did not accept were connected with the National Cancer Institute and believed that, as government employees, they should not, as a matter of policy, accept the invitation. CTR-TIRC-MIN000001-0252 at 0021 (JD 093292); CTRMN039046-9106 at 9051-9052 (JD 092825); 508775311-5311 (JD 093893); ARU11308280904 (U.S. 86773).

52. The first meeting of the SAB was held on April 26,1954. The SAB members chose as their Chairman, Clarence Cook Little, a well-known cancer researcher and geneticist of high integrity and national repute. At the second meeting of the SAB, Little was selected as Scientific Director on a part-time basis with an assistant who would serve on a full-time basis. In November 1954, Robert Hockett was chosen as Associate Scientific Director. Little served as SAB Chairman from 1954 to 1957 and as TIRC/CTR Scientific Director from 1954 to 1971. Little PD,

La-rtigue v. Reynolds,

10/5/60, 2713:20-21, 2715:4-12, 2721:9-11; Little PT,

Zagurski v. American,

6/7/67, 652:21-653:2, 676:6-18. Following Little, the Scientific Directors were William Gardner (1973-1981), Sheldon Sommers (1981-1987), James Glenn (1988-1990), and Harmon McAllister (1991-1999). CTR-TIRC-MIN000001-0252 at 0022 (JD 093292); TLT0902041-2064 (U.S. 88360); TLT0903105-3108 at 3105 (U.S. 88366); ARU1130828-0904 (U.S. 86773); CTRMN004928-4929 (U.S. 85995); 11310050-0053 (JD 090066).

53. In a November 27, 1963 memorandum, Clarence Cook Little described the Enterprise’s criteria for selecting the SAB members. Little wrote:

In the selection of a Scientific Advisory Board and in the acceptance of the nomination by that Board of a Scientific Director, it was clearly shown that the attitude of the TIRC was to pick scientists interested broadly in the origin and nature of the

diseases

implicated and in the evaluation of smoking as a

possible

factor, not as a

proven

one.

*48

70003601-3602 at 2601 (U.S. 85993) (emphasis in original).

54. Clarence Cook Little’s personal commitments and assumptions about cancer causality made him an ideal proponent of the industry’s goal of maintaining a “controversy” rather than scientifically resolving the questions regarding smoking and health. Brandt WD, 86:10-18. Little explained at the press conference announcing his appointment that: “I am ultraconservative about cause and effect relationships.” CW01054843^879 at 4877 (U.S. 20278). However, at that same press conference, Little made many claims about the health benefits of cigarette use:

It is very well-known, for example, that tobacco has relaxed a great many people. It is a very good therapy for a great many nervous people.

CW01054843-4879 at 4845 (U.S. 20278).

55. Little repeatedly centered attention on the so-called “constitutional hypothesis”; other environmental risks; and the need for more research into the basic etiology of the diseases associated with smoking. Brandt WD, 86:19-22; McAllister WD, 123:18-22; Little PT,

Zagurski v. American,

6/7/67, 661:9-663:9, 665:7-666:20. He believed that “the causation of lung cancer was not known,” that it was a complicated and unsolved problem with many factors involved, such as nutrition, heredity, the mental type of the individual, present or former or existing infection, air pollution, and radiation. This statement of his beliefs became known as the “constitutional hypothesis.” Little PD,

Lartigue v. Reynolds,

10/5/60, 2729:1-2730:15, 2735:11-2736:2; CTRMN005534-5541 (U.S. 21156); (no bates) (U.S. 21224); (no bates) (U.S. 21233); (no bates) (U.S. 21834). He argued that “no positive evidence has been advanced by anybody who believes in the tobacco guilt theory that has made me change my mind.” Little PD,

Lartigue v. Reynolds,

10/5/60, 2782:10-16. Under Little’s leadership, the SAB funded studies on vitamins, influenza, twins, and viruses, but not on carcinogenic agents in tobacco smoke because: “we believe that no such agents have been found which are carcinogenic to men,”

id.

at 2755:6-18; “[w]e don’t believe they are there and a will-of-the-wisp hunt for something that hasn’t yet been shown is a waste of money,”

id.

at 2761:14-22; “[t]here are no carcinogenic agents in tobacco tar that have been proven to cause cancer in man.... And I say again that to transfer from the skin of a mouse to the lung of a man is not science,”

id.

at 2762:23-2763:13.

56.The SAB met regularly from 1954 until at least 1997 to review, approve, and renew grant applications and contracts. Those who attended the SAB meetings, in addition to SAB members, were the ITC Chairman, TIRC/CTR staff members, public relations counsel for TIRC/CTR, and (at times) Defendants’ attorneys and scientific guests. Zahn PD,

Cipollone v. Liggett,

12/16/1986, 106:3-107:1; Zahn PD,

Massachusetts v. Philip Morris,

5/28/98, 78:3-79:5, 80:2-21; Zahn PD,

Richardson v. Philip Morris,

12/1/1998, 96:10-16; CTRMIN-SAB000001-1061, 70011735-1757 (JD 090960); CTRMIN-SAB000001-1061 (U.S. 21146); CTRMIN-SAB0000700074 (U.S. 80382); CTRMIN-SAB000320-0325 (U.S. 80429); CTRMIN-SAB000326-0330 (U.S. 80430); CTRMIN-SAB000337-0341 (U.S. 80432); CTRMIN-SAB000342-0350 (U.S. 80433); CTRMN004320-4323 (U.S. 21148); CTRMN004539^4544 (U.S. 21151); CTRMIN048368-8369 (U.S. 85996); ZN7912-7921 (U.S. 64789); SM0120005-0009 (U.S. 65442); 955011516-1520 (U.S. 32362); TLT0903247-3251 (U.S. 87521); TLT0903189-3193 (U.S. 87522); TLT0903145-3148 (U.S. 87523); TLT0903132-3135 (U.S. 87524);

*49

TLT0903116-3117 (U.S. 87525); TLT0903181-3185 (U.S. 87526); TLT0903177-3180 (U.S. 87527); TLT0903166-3169 (U.S. 87528); TLT0903208-3211 (U.S. 88367); TLT0903202-3207 (U.S. 88368); TLT0903197-3201 (U.S. 88369).

57.Many meetings of the SAB had no written record. According to a confidential report on the December 9, 1981 meeting of the SAB, the following policy regarding meetings was reaffirmed: “to conduct informal ‘in house’ conferences on specific subjects ‘off the record’ held without minutes or publication, but not to sponsor open meetings with a resultant publication.” This policy was in effect at least ten years prior to the 1981 meeting and continued into the late 1990s. CTRMIN-SAB 000611-0612 (U.S. 80480); Lisanti PD,

Richardson v. Philip Morris,

12/8/98, 112:1621, 114:1-116:18.

58.Contrary to Defendants’ assertions that the members of the SAB were disinterested parties who received no monetary compensation from the tobacco companies or from TIRC/CTR, sixteen members of the SAB (out of forty-three) were awarded over $5 million in grants-in-aid funding between 1954 and 1991. Sommers PD,

Cipollone v. Liggett,

10/2/86, 130:4-131:1, 132:1619; McAllister PD,

United States v. Philip Morris,

5/23/02, 250:15-253:11; Zahn PD,

Cipollone v. Liggett,

12/18/1986, 388:3-7; Lisanti PD,

Engle v. Reynolds,

8/13/97, 111:23-112:3; McAllister WD, 76:16-18.

59.Defendants, through the CTR’s Board of Directors, exercised control over the CTR research grant program throughout its existence by approving the total amount of funding for the grant program and, after the first few years, by selecting the CTR Scientific Directors and their staff. Zahn PD,

Richardson v. Philip Morris,

12/16/98, 459:13-460:9; McAllister PD,

United States v. Philip Morris,

5/23/02, 56:5-57:18; USX6390001-0400 at 0012 (U.S. 89555); CTRMN003816-3835 (U.S. 21147). In fact, Helmut Wakeham of Philip Morris complained to David Felton, a BATCo scientist, that finding a Scientific Director to succeed Little after he resigned “was in the hands of the lawyers committee” and the Tobacco Institute without consultation with CTR or company scientists. 10315968-5971 (U.S. 26378); (U.S. 26379); (U.S. 63573).

2. Research Activities of TIRC/CTR

60. TIRC focused its energies and resources in two areas — public relations and scientific research. First, it served as a sophisticated public relations unit for Defendants, especially in relation to growing public concern about the risks of smoking, by repeatedly attacking scientific studies that demonstrated the harms of cigarette smoke and insisting on the notion of an “open question” regarding cigarette smoking and health. Second, it developed a scientific research program that focused on basic processes of disease rather than evaluating the risks and harms associated with smoking — the very subject that the industry had pledged to pursue through TIRC. Zahn PD,

Richardson v. Philip Morris,

12/16/98, 318:16-319:1, 319:3, 325:3-12, 325:20-328:6, 336:15337:11, 561:21-562:7; Brandt WD, 57:13-23; 82:21-83:8, 127:17-19; Sommers PD,

Cipollone v. Liggett,

10/2/86, 73:12-16, 73:20-22, 74:2, 74:8-15. From the outset, the dual functions of TIRC were intertwined, with the scientific program of TIRC always subservient to the goals of public relations. Brandt WD, 57:8-11.

61. Defendants’ denials of the link between smoking and disease kept away many excellent researchers. In an October 1969 memorandum to Ross R. Millhiser of Philip Morris, Helmut Wakeham,

*50

Vice President and Director of Research for Philip Morris, expressed concern that

the efforts of the tobacco industry through CTR and the American Medical Association have failed to involve the best investigators. At the beginning of our support of smoking and health research, this failure may have been connected with our consistent denial of the statistics and our continued assertion that there is nothing to the cigarette causation hypothesis.

1001609594-9595 (U.S. 21437).

62. A year later, Wakeham again discussed CTR’s strategy of frequent and public denials, in a December 1970 memorandum to Joseph Cullman, Chairman of Philip Morris and Chairman of the Executive Committee of the Tobacco Institute:

It has been stated that CTR is a program to find out the “truth about smoking and health.” What is truth to one is false to another. CTR and the Industry have publicly and frequently denied what others find as “truth.” Let’s face it. We are interested in evidence which we believe denies the allegation that cigarette smoking causes cancer.

1000255938-5940 (U.S. 20085).

63. Defendants, through TIRC/CTR and its public relations strategy, were especially effective in identifying and supporting skeptics of the link between smoking and disease. Skeptics were invited to join the Scientific Advisory Board of the TIRC; they and their home institutions were provided with research grants from the TIRC. Their views were effectively solicited and broadcast widely by TIRC and the Tobacco Institute. Brandt WD, 80:12-18.

64. TIRC/CTR funded research through a variety of mechanisms: grants, contracts, CTR Special Staff Services, and CTR Special Projects. ARU1130828-0904 (U.S. 86773).

See

Section 111(E)(2),

infra

for detailed discussion of CTR Special Projects.

65. Virtually none of the research funded by TIRC/CTR centered on immediate questions relating to carcinogenesis and tobacco that could resolve the question of the harms brought about by cigarette smoking. Although some TIRC/CTR-funded researchers explored alternative hypotheses, TIRC/CTR did not typically pursue direct research on cigarettes and disease. Rather than addressing the constituents in tobacco smoke and their demonstrated effect on the human body, TIRC/CTR directed the majority of its resources to alternative theories of the origins of cancer centering on genetic factors and environmental risks. The major thrust of TIRC/CTR was to emphasize that human cancers were complex processes, difficult to study and difficult to understand, and to focus on the “need for more research.” Brandt WD, 82:10-12, 85:12-86:3, 120:20-121:11. Although research funded by the SAB was irrelevant to the immediate questions associated with tobacco smoking and health, it did “create the appearance of [Defendants] devoting substantial resources to the problem without the risk of funding further ‘contrary evidence.’ ” Harris WD, 104:23-105:7.

66. Two of CTR’s Scientific Directors, Harmon McAllister and Sheldon Sommers, confirmed that the basic research funded by CTR was not immediately relevant to smoking and health. McAllister stated that they funded “basic medical research on the etiology of diseases that have been epidemiologically linked to smoking. That’s our global [sic] — that’s the way we operate. Those are the sorts of applications we entertain.” McAllister PD,

Broin v. Philip Morris,

12/6/93, 46:2-16. Som-mers stated that a CTR grant application’s relevance to cigarette smoking and health

*51

was not the primary factor the SAB used in rating grant applications, but that “[s]ci-entific merit was of equal or of greater importance than relevance.” Sommers PD,

Cipollone v. Liggett,

10/2/86, 134:10-22, 135:4-6. Sommers was an SAB member from 1967 to 1989, SAB Chairman from 1970 to 1980, CTR Research Director from 1969 to 1972, and CTR Scientific Director from 1981 to 1987. Sommers PD,

Galbraith v. Reynolds,

9/4/85, 10:12-25, 22:7-12, 23:22-24:16; Sommers PD,

Rogers

v. Reynolds, 12/17/85, 9:11-12, 13:14— 18, 14:15-22; Sommers PD,

Arch v. American,

7/14/97, 10:21-24, 11:9-24, 13:9-13, 16:14 — 21, 95:14-22; Sommers PD,

Arch v. American,

7/15/97, 16 4:18-22.

67. During a four-week visit to the United States in 1958, the three British scientists who met with representatives of TIRC and TIRC’s SAB, as well as representatives of American, Liggett, and Philip Morris, reported that

Liggett & Meyers stayed out of TIRC originally because they doubted the sincerity of TIRC’s motives and believed that the organization was too unwieldy to work efficiently. They remain convinced that their misgivings were justified. In their opinion TIRC has done little if anything constructive, the constantly reiterated ‘not proven’ statements in the face of mounting contrary evidence has thoroughly discredited TIRC, and the SAB of TIRC is supporting almost without exception projects which are not related directly -to smoking and lung cancer.

TINY0003106-3116 (U.S. 21369); 105408490-8499 at 8495 (U.S. 21135), (U.S. 76169); Brandt WD, 94:8-95:17.

68. After another visit to the United States in the fall of 1964, two different British scientists wrote in their report: “As we know, CTR supports only fundamental research of little relevance to present day problems.” 1003119099-9135 (U.S. 20152).

69. The Defendants knew that TIRC/ CTR was funding research concerning cancer as a general issue, rather than the relationship of smoking to cancer. Brandt WD, 121:6-122:14. In January 1968, Addison Yeaman, B & W Vice President and General Counsel, wrote:

Review of SAB’s current grants indicates that a very sizable number of them are for projects in what might be called ‘basic research’ without specific orientation to the problem of the relationship of the use of tobacco to human health.

00552837-2839 at 2837 (U.S. 22968).

70. In addition, Defendants appreciated the delays associated with the basic research approach. Janet Brown, outside counsel for American, explained CTR’s strategy of undertaking only basic research funding, as opposed to funding questions directly related to tobacco and health to Cy Hetsko, Vice President and General Counsel for American, and Addison Yeaman, Vice President and General Counsel for B & W, at a January 1968 meeting. The rationale was that basic research kept alive the Enterprise’s open question argument on causation. Yeaman summarized Brown’s position as:

First, we maintain the position that the existing evidence of a relationship between the use of tobacco and health is inadequate to justify research more closely related to tobacco, and Secondly, that the study of the disease keeps constantly alive the argument that, until basic knowledge of the disease itself is further advanced, it is scientifically inappropriate to devote the major effort to tobacco.

68-262155-2157 (U.S. 63527).

71. Geoffrey F. Todd, Executive Director of the Tobacco Research Council, a

*52

British organization equivalent to CTR (discussed further at Section III(I)(3),

infra)

made several visits to the United States, during which time he met with Defendants’ representatives, attorneys, and scientists. After his 1973 trip, Todd wrote: “It was difficult to avoid the sad conclusion that C.T.R. has become a backwater of little significance in the world of smoking and health.” 100226995-7033 (U.S. 21134).

72. Throughout the existence of TIRC/ CTR, representatives of the member companies and their attorneys were influential in its activities and research. Beginning in November 1971, CTR staff met semiannually with representatives of the member companies, usually the research directors and general counsel. The all-day meetings were designed to keep members of the Enterprise aware of the status of research funded by Defendants through TIRC/ CTR. CTRMIN-MOM000016-0034 at 0018, 0022 (U.S. 21170).

73. The Enterprise, through TIRC/ CTR, sought out certain researchers and/or areas of research and solicited grant applications. Clarence Cook Little admitted that, seeing a line of work that showed promise, TIRC/CTR approached researchers and asked them, “Are any of you willing to try this if we provide your institution with money and you with help?” Little PD,

Lartigue v. Reynolds,

10/5-6/60, 2721:21-2722:9, 2800:12-25; Lisanti PD,

Small v. Lorillard,

3/31/98, 478:11-480:25.

74. Sheldon Sommers, CTR Scientific Director, stated that CTR frequently initiated research and suggested particular research for which it would make grants available. He said, “Yes. I go out all the time looking for opportunities and new ideas and investigators in various fields of biomedicine.” Sommers PD,

Rogers v. R.J. Reynolds,

12/17/85, 50:19-52:15, 52:22-53:2, 53:7-18; Sommers PD,

Cipol-lone v. Liggett,

10/3/86, 181:15-23, 182:12-183:10; Sommers PD,

Small v. R.J. Reynolds,

10/8/97, 176:18-177:11; 85760397-0397 (U.S. 85998).

75. One of the reasons that Paul Kotin decided to resign from the SAB was that he was disturbed by “the going out and requesting the submission of grants, of applications for grants. And I felt this circumvented the original foundation for the SAB, at least for my membership in the SAB.” Kotin PD,

Falise v. American,

7/6/00, 67:10-69:24. Kotin had served on the TIRC SAB from 1954 to 1965. Kotin PD,

Falise v. American,

7/6/00, 9:9-15. Another reason for Kotin’s resignation was reported by visitors from the United Kingdom’s Tobacco Research Council in October 1964:

The recent [CTR] Annual Report by Dr. Little was severely criticised by the U.S. Surgeon General at a Washington press conference. Dr. Kotin was also highly critical of it and talks privately of resigning from the S.A.B. if another report of the same nature is going to be published next year.

512678484-8499 (U.S. 51653); 1003119099-9135 (U.S. 20152), (U.S. 35649*); 105407261-7329 (JE 34739);

see also

Kotin PD,

Falise v. American,

7/6/00, 72:19-73:14; Kotin PD,

Falise v. American,

7/7/00, 190:2-192:17, 197:13-198:2.

76. Similarly, John Craighead, who was an SAB member for approximately one year, was also disturbed by the nature of the CTR research program. Craighead resigned from the SAB in part because he felt that the research did not address the fundamental issues related to tobacco and because of the involvement of CTR Chairman Addison Yeaman into the direction of the CTR research program. Craighead PD,

Butler v. Philip Morris,

11/13/96, 47:8-17, 84:13-86:3, 87:10-21, 88:6-10, 93:8-17, 107:19-25; Sommers PD,

Small v.

*53

R.J. Reynolds,

10/7/97, 10:24-11:12, 12:2-13:19.

77. Sheldon Sommers acknowledged the influence and control wielded by CTR Chairmen and Presidents over the TIRC/ CTR research program. AJI TIRC/CTR Presidents were from tobacco companies, Sommers PT,

Cipollone v. Liggett,

4/19/88, 8736:7-12, and, until 1991, each and every TIRC/CTR Chairman was a retired tobacco company executive. McAllister WD, 18:15-16. In September 1981, Sommers wrote that “new Chairman Hobbs [from RJR] is more interested in basic research so relevance to smoking and health is no longer- a crucial matter in funding.” 85760397 (U.S. 85998); Sommers PD,

Cipollone v. Liggett,

10/2/86, 136:8-14. Som-mers also testified that, after Addison Yea-man (from B

&

W) became CTR President and CEO, CTR began initiating more contracts because Yeaman believed that “the program was too diffuse and should be ‘targeted.’ ” Sommers PD,

Cipollone v. Liggett,

10/3/86, 297:16-298:2.

78. Following CTR’s January 1975 annual meeting, the CTR staff was given more control over the grant and contract application process. According to the meeting minutes:

The Chairman stated that in the continued effort to bring maximum information to the Scientific Advisory Board preliminary investigation is being made by the Council’s staff.... Following this, the proposals are then submitted for study by a subcommittee of the Board [SAB]....

CTRMIN-MOM000070-0087 at 0071 (U.S. 32618).

3. Public Relations Activities of TIRC/CTR

79. In December 1953, Timothy Hart-nett, President of B & W, summarized the crisis of the industry in the following terms:

But cancer research, while certainly getting our support, can be only half an answer..'.. The other side of the coin is public relations ... [which] is basically a selling tool and the most astute selling may well be needed to get the industry out of this hole.... It isn’t exaggeration that no public relations expert has ever been handed so real and yet so delicate a multi-million dollar problem.... Finally, one of the roughest hurdles which must be anticipated is how to handje significantly negative research results, if, as, and when they develop.

1005039779-9783 (U.S. 20190); Brandt WD, 55:22-56:11.

80. From the outset, the dual functions of TIRC — public relations and scientific research —were intertwined. Ernest Pep-ples, in an internal B

&

W letter dated April 4,1978, acknowledged:

Originally, CTR was organized as a public relations effort. The industry told the world CTR would look at the diseases which were being associated with smoking. There was even a suggestion by our political spokesmen that if a harmful element turned up the industry would try to root it out.

680212421-2423 at 2422 (U.S. 54024); 682338651-8653 (U.S. 22899).

81. One name initially proposed for TIRC/CTR, the “Tobacco Industry Committee for Public Information,” reflected its public relations purpose. However, John Hill of the public relations firm Hill

&

Knowlton expressed skepticism that a public relations strategy that simply argued that the harms of cigarette smoking were “unproven” would succeed. Such a campaign might appear self-interested in the face of the serious health concerns being raised. Brandt WD, 54:11-19. As a

*54

result, Hill suggested that the industry-should sponsor new research and use

[t]he word “research” ... in the name of the Committee to establish the fact that the group will carry on or sponsor fundamental scientific research and will not be solely an information agency.

TLT0900422-0430 at 0424 (U.S. 88169); TLT0901541-1545 at 1542 (U.S. 87225); TLT0901546-1549 (U.S. 88191).

82.A white paper titled “A Scientific Perspective on the Cigarette Controversy” was one of the first public relations projects undertaken by Hill

&

Knowlton on behalf of its new client, TIRC. TLT0901688-1707 (U.S. 88386). Hill

&

Knowlton/TIRC undertook the project because Defendants felt it necessary and urgent

to present to leaders of public opinion the fact that there was no unanimity among scientists regarding the charges against cigarettes.

TLT0902041-2064 at 2054 (U.S. 88360). The twenty-page booklet consisted of published quotations from some three dozen scientists and researchers who denied that there was any proof that linked smoking and lung cancer or who questioned the validity of statistical methods and the conclusions drawn from recent laboratory experiments with mice. TLT0901688-1707 (U.S. 88386); TLT0902041-2064 at 2054 (U.S. 88360), (U.S. 88364); CTRMN004924-4927 (U.S. 21152).

83.205,000 copies of “A Scientific Perspective on the Cigarette Controversy” were released on April 14, 1954. CTRMN004924-4927 (U.S. 21152). The booklet was sent to 176,800 doctors, as well as to deans of medical and dental colleges. TLT0902954-2955 (U.S. 88388). The booklet with a press release went to a press distribution of 15,000, including: editors of daily and weekly newspapers, con-;umer magazines, veterans magazines, and medical and dental journals; news syndicate managers; business editors; editorial and science writers; radio and television commentators; news columnists; and Members of Congress.

Id.;

CTR-TIRC-MIN000001-0252 at 0006, 0007, 0010 (JD 093292); TLT0900159-0161 (U.S. 87720).

84. In the June 1954 “Public Relations Report and Recommendations for Tobacco Industry Research Committee,” Hill & Knowlton described the success of its public relations efforts for TIRC:

Committee headquarters is steadily gaining recognition as a source of authoritative information on the subject of tobacco and health. The result is that news and magazine writers, columnists and commentators are turning to the Committee and its public relations counsel for more and more information.

TLT0901558-1563 at 1559 (U.S. 88394); 514806129-6131 (U.S. 20860).

85. Timothy Hartnett became the full-time chairman of TIRC on July 1, 1954, the day after his retirement as President of B & W, and continued to advance the Defendants’ “open question” position in that role. In the press release generated by Hill & Knowlton announcing his appointment, Hartnett repeated the two commitments that TIRC had made in its Statement of Purpose and in its bylaws, i.e., (1) to carry on “comprehensive and objective scientific and statistical research to establish the facts,” and (2) “report them to the public.” After stating that the “tobacco industry is determined to find the answers to the public’s questions about smoking and health,” Hartnett continued:

It is an obligation of the Tobacco Industry Research Committee at this time to remind the public of [some] essential points: (1) There is no conclusive scientific proof of a link between smoking and cancer; (2) Medical research points to

*55

many possible causes of cancer; ... (5) The millions of people who derive pleasure and satisfaction from smoking can be reassured that every scientific means will be used to get all the facts as soon as possible.

Brandt WD, 56:12-23; TLT0901831-1832 (U.S. 88398).

86. Wilson Hoyt, who was initially a Hill & Knowlton employee with no scientific background whatsoever, held positions as TIRC/CTR Executive Secretary, Executive Director, Executive Vice President, and President in his three decades with TIRC/CTR. Brandt WD, 58:23-59:2. In his 1955 administrative reports as TIRC Executive Secretary and Hill & Knowlton executive, Hoyt affirmed the intertwined functions of public relations and research in TIRC’s program. In his April 1955 report, he wrote:

Essentially, the major purposes of the TIRC are Research and Public Relations. Our job is to maintain a balance between the two, and to continue to build soundly so that at all times Research and Public Relations complement each other. In that way we intend to assume the mantle of leadership and, ultimately, to create a condition where the public will look to the TIRC for answers rather than to others.

CTR-TIRC-MIN000033-0052 (U.S. 33006); Brandt WD, 83:9-23. In his January 1955 report, he wrote, ‘Within this framework we have furthered and coordinated the two major purposes for which the Committee was organized namely, the public relations phase and the research program.” CTRTIRC-MIN000001-0252 at 0018-0032 (JD 093292); CTRMN003816-3835 at 3826 (U.S. 21147).

87. Despite Defendants’ assertion that TIRC/CTR was solely an organization that funded independent research for the purpose of finding answers to smoking and health question, it served to a great extent as an effective public relations tool and information conduit. In a July 1963 memorandum, Addison Yeaman, General Counsel for B & W, wrote:

The TIRC cannot, in my opinion, provide the vehicle for such research. It was conceived as a public relations gesture and (however undefiled the Scientific Advisory Board and its grants may be) it has functioned as a public relations operation.

689033412-3416 (U.S. 22034); Brandt WD, 116:17-117:22; VXA2510190-0194 (U.S. 63599); 2046754905-4909 (U.S. 20477); Duffin PD,

Cipollone v. Liggett,

1/23/86, 118:14-17.

88. Alexander Spears, Lorillard’s Director of Research, in 1974 echoed the sentiments of Addison Yeaman when he explained:

Historically, the joint industry funded smoking and health research programs have not been selected against specific scientific goals, but rather for various purposes such as public relations, political relations, position for litigation, etc. Thus, it seems obvious that reviews of such programs for scientific relevance and merit in the smoking and health field are not likely to produce high ratings. In general, these programs have provided some buffer to the public and political attack of the industry, as well as background for litigious strategy.

01421596-1600 (U.S. 20049); 83910516-0520 (U.S. 55955); Brandt WD, 123:14-124:1.

89. In a 1975 speech to CTR members, Addison Yeaman gave his observations on the Council, noting, “It is my sober judgement that CTR, as it now operates is the greatest public relations

asset

you have in the problem of tobacco and health.” 11303014-3020 at 3017 (U.S. 86005) (em

*56

phasis in original).

See

Section 111(D)(2),

infra

for more discussion of public relations activities.

4. Publications and Public Statements of TIRC/CTR a. TIRC/CTR Annual Reports

90.TIRC/CTR published and issued Annual Reports from 1956 through 1997. McAllister WD, 20:10-11. Copies-of the TIRC/CTR Annual Reports were sent to libraries, colleges and universities, deans of medical schools, science and medical editors and writers for the popular press, CTR grant recipients, and members of professional medical societies. McAllister WD, 20:1424; Glenn PD,

Sontag v. U.S. Tobacco,

10/16/96, 34:4-23; Sommers PD,

Rogers v. R.J. Reynolds,

12/17/85, 18:8-19.

91.The TIRC/CTR Annual Reports routinely included, in varying formats: abstracts of articles published by researchers funded by TIRC/CTR grants; brief statements regarding organization and policy; lists of SAB members and their affiliations; lists of current and former grantees; lists of ongoing and completed projects; and research summaries, commentaries, rationales, and observations. Zahn PD,

Cipollone v. Liggett,

81:1-9; CTRAR000001-CTRAR000015-0040 CTRAR000041-0073 CTRAR000074-0109 CTRAR000110-0147 CTRAR000148-0185 CTRAR000186-0216 CTRAR000217-0253 CTRAR0002540293 CTRAR000294-0334 CTRAR000335-0376 CTRAR000377-0433 CTRAR000434-0477 CTRAR000478-0526 CTRAR000527-0580 CTRAR000581-0629 12/16/86, 79:4-13, ■0013 (JD 090000); (JD 090001); (JD 090002); (JD 090003); (JD 090004); (JD 090005); (JD 090006); (JD 090007); (JD 090008); (JD 090009); (JD 090010); (JD 090011); (JD 090012); (JD 090013); (JD 090014); (JD 090015); CTRAR0006300675 (JD 090016); CTRAR000676-0717 (JD 090017); CTRAR000719-0763 (JD 090018); CTRAR000764-0807 (JD 090019); CTRAR000808-0861 (JD 090020); CTRAR000862-0916 (JD 090021); CTRAR000917-0974 (JD 090022); CTRAR000975-1036 (JD 090023); CTRAR001037 1097 (JD 090024); CTRAR001098-1172 (JD 090025); CTRAR001173-1246 (JD 090026); CTRAR001247-1355 (JD 090027); CTRAR001356-1451 (JD 090028); CTRAR001452-1547 (JD 090029); CTRAR001548-1649 (JD 090030); CTRAR001650-1767 (JD 090031); CTRAR0017681880 (JD 090032); CTRAR001881-2003 (JD 090033); CTRAR002004-2149 (JD 090034); CTRAR002150-2287 (JD 090035); CTRAR002288-2465 (JD 090036); CTRAR002466-2619 (JD 090037); CTRAR002620-2784 (JD 090038); 70000302-0618 (JD 090039); 85865669-5692 (U.S. 22954); 85865742-5804 (U.S. 21082); 85865805-5873 (U.S. 21083); 85865874-5946 (U.S. 21084); 01141473-1541 (U.S. 20039); 85866020-6080 (U.S. 21085); 1002315412-5483 (U.S. 20125); 1002315484-5561 (U.S. 20126); 1002315562-5640 (U.S. 20010); 1002315641-5722 (U.S. 20011); 1002315723-5834 (U.S. 20127); 501773418-3466 (U.S. 20686); 1002315835-5920 (U.S. 21800); 85865693-5741 (U.S. 22237); 1005082487-2584 1005082585-2690 1005082691-2788 2028556086-6177 1002316312-6397 1002316398-6485 1002316486-6571 1002316572-6677 (U.S. (U.S. (U.S. (U.S. (U.S. (U.S. (U.S. (U.S. 1002316678-6780 (U.S. 20132). 20202); 20203); 20012); 20428); 20128); 20129); 20130); 20131);

92.From 1956 until 1993, TIRC/CTR public relations counsel Leonard Zahn was

*57

in charge of preparing and compiling the Annual Reports, making distribution recommendations, and drafting the Introduction section for some of them. Zahn PD,

Cipollone v. Liggett,

12/18/86, 368:23-369:4, 369:10-370:14, 371:5-9, 371:11-372:8, 379:16-381:24, 382:17-21; Zahn PD,

Massachusetts v. Philip Morris,

5/28/98, 41:22-45:12, 48:2-7, 49:6-17, 49:22-51:1, 51:14-21, 52:823; CTRMN015594-015613 (U.S. 79903). In a December 1972 memo attached to his proposed outline for the next report, Zahn acknowledged that

[t]he research section of the CTR [Annual] Report is based on published articles by grantees and, unfortunately, not much directly related to tobacco appeared in the last 18 months.

CTRMN015614-015616 (U.S. 79904).

93. The commentary in the Annual Reports uniformly challenged the hypothesis that smoking was linked to lung cancer and emphasized that data regarding smoking and health were controversial, contradictory, and inconclusive. For example:

• 1957 Report of the Scientific Director (“[S]ound medical and experimental knowledge of tobacco use is relatively limited, at times contradictory, and often conjectural rather than factual.... There is not known today any simple or quick way to answer the question of whether any one factor has a role in causing human lung cancer ... no one has established that cigarette smoke, or any one of its known constituents, is cancer causing to man.... Members of the [TIRO SAB] Board take the general position that definitive conclusions or predictions of individual risks are unwarranted by the present imperfect state of knowledge in the complex field of lung cancer causation,” and describing cancer as “this so-called constitutional disease.”);

• 1958 Report of the Scientific Director (“[A] problem may well be obscured, and its solution delayed, by the soothing acceptance of an oversimplified and immature [tobacco theory] hypothesis____ The proponents of the tobacco theory have generated increasingly intensive and extensive propaganda.... As a result, a non-scientific atmosphere, conducive to prematurity, unbalance, and inadequacy of public judgement, has pervaded the whole field.... The prohibition concept discounts or ignores all considerations of smoking benefits in terms of pleasure, relaxation, relief of tension or other functions.”);

• 1961 Report of the Scientific Director (“[T]hose who most actively promote this [smoking-lung cancer] hypothesis have consistently ignored or, at best, have minimized the fact that numerous directly relevant experiments either have failed to support the hypothesis or have provided only weak or uncertain data.”);

• 1963-64 Report of the Scientific Director (“After 10 years the fact remains that knowledge is insufficient either to provide adequate proof of any hypothesis- or to define the basic mechanisms of health and disease with which we are concerned.”);

• 1964-65 Report of the Scientific Director (“[EJvidence to support the thesis that cigarettes exercise a direct carcinogenic effect on man has not been forthcoming.”);

• 1978 Report of the Council for Tobacco Researeh-U.S.A., Inc. (“[T]he complex etiology of these constitutional diseases [cancer, heart disease, chronic pulmonary ailments] remains

*58

unraveled. These diseases have been associated statistically with smoking, but such associations are not proof of cause and effect.”).

CTRAR000015-0040 (JD 090001); 501773418-3466 (U.S. 20686); Brandt WD, 86:19-87:20; 85865693-5741 (U.S. 22237); CTRAR000041-0073 85865742-5804 CTRAR000148-0185 01141473-1541 CTRAR000217-0253 1002315412-5483 CTRAR000254-0293 1002315484-5561 CTRAR000808-0861 1002316572-6677 (U.l (JD 090002); (U.S. 21082); (JD 090005); (U.S. 20039); (JD 090007); (U.S. 20125); (JD 090008); (U.S. 20126); (JD 090020); i. 20131).

94.For more than two decades, the commentaries in the Annual Reports also discounted the conclusions reached by the public health community and the Surgeon General linking smoking and disease and simply repeated the “open question” position of the tobacco industry. 5157092979340 (U.S. 20866);

see

Section (V)(A),

infra.

Robert Hockett, Associate Scientific Director at the Council for Tobacco Research-USA, which evaluated the content of the Annual Reports for the industry wrote: “The aim of [Little’s] summations, much too apparently, seems to be to protect smoking.” MNAT00515749-5762 at 5752 (U.S. 63570); Brandt WD, 122:15-123:13; Lisanti PD,

Small v. Lorillard,

3/31/98, 454:5-14.

95.A June 20, 1984 memorandum from Wendell Stone, attorney at Shook, Hardy & Bacon, during the

Cipollone

litigation, acknowledged the bias of CTR/TIRC’s annual reports. Stone commented that the reports, especially the early ones, “contained lengthy commentary ... which read much like industry position papers.” Stone also concluded:

The TIRC/CTR commentary on research did not always seem to conform fully to the positions taken or implied in the abstract. For example, with respect to the Leuchtenberger inhalation research, the abstracts in the annual reports tend to give the impression that these researchers did in fact have a good animal model of lung cancer production by smoke inhalation. However, commentary on this research in the front material to the reports tended to argue away the relevance of the results.

515709297-515709340 (U.S. 20866).

b. TIRC/CTR Newsletters

96.From October 1957 to at least 1968, first TIRC and then the Tobacco Institute published a newsletter variously named Tobacco and Health, Research Reports on Tobacco and Health, and Reports on Tobacco and Health Research. The newsletter was published two or three times a year; contained articles that disputed the relationship between smoking and disease; criticized research supporting such a relationship; and emphasized that differing opinions existed regarding tobacco use and health. Brandt TIMN0000713-0714 TIKU000006665-6668 TIMN0000719-0722 TIMN0000723-0726 TIMN0000727-0728 TIMN0000733-0734 TIMN0000736-0738 TIMN0000739-0744 TIMN0000745-0747 TIMN0000748-0750 TIMN0000751-0756 TIMN0000757-0762 TIMN0000763-0774 TIMN0000775-0780 TIMN0000781-0784 TIMN0000785-0788 TIMN0000789-0792 TIMN0000793-0796 TIMN0000797-0800 TIMN0000801-0804 WD, 84:10-85:9; (U.S. 21264); (U.S. 86007); (U.S. 86011); (U.S. 86012); (U.S. 86013); (U.S. 86014*); (U.S. 86015*); (U.S. 86016); (U.S. 86017); (U.S. 86045); (U.S. 86018); (U.S. 86019); (U.S. 86020); (U.S. 86021); (U.S. 86022); (U.S. 86023); (U.S. 86024); (U.S. 86025); (U.S. 86026); (U.S. 86027);

*59

TIMN0000805-0808 TIMN0000809-0812 TIMN0123324-3327 TIMN0130693-0696 TIMN0130707-0710 TIMN0130728-0731 TIMN0130802-0803 TIMN0130816-0817 TIMN0000713-0714 TIMN0123276-3279 TIMN0123304-3307 TIMN0130687-0690 TIMN0130742-0745 TIMN0130749-0752 TIMN0130778-0781 TITX0006679-6682 502367882-7887 TIMN0123314-3317 TITX0006691-6694 TIMN0000748-0750 TIMN0130810-0811 TIMN0130735-0738 TIKU000006559-6562 TIKU000006545-6548 TIMN0130756-0761 TIMN0130714-0717 TIKU000006538-6541 511018410-8413 MNAT00515648-5651 (U.S. 86028); (U.S. 86029); (U.S. 21282); (U.S. 62844); (U.S. 62845); (U.S. 62847); (U.S. 62849); (U.S. 62851); (U.S. 21264); (U.S. 77059); (U.S. 77060); (U.S. 77068); (U.S. 77069); (U.S. 77070); (U.S. 77071); (U.S. 77111); (U.S. 49132); (U.S. 21345); (U.S. 86044); (U.S. 86045); (U.S. 62850); (U.S. 62848); (U.S. 86048); (U.S. 86050); (U.S. 86051); (U.S. 62846); (U.S. 86052); (U.S. 22459); U.S. 72185).

97.Initially, TIRC was to publish the Tobacco and Health newsletter. This provoked a strong reaction from members of the Scientific Advisory Board who received advance copies of the first issue. In a letter to SAB Chairman Clarence Little, SAB member McKeen Cattell classified the new publication as “obviously propaganda material” and expressed -serious concern about the effect it would have on the SAB’s program. 701235030-5030 (U.S. 31474). Julius Comroe, another SAB member, advised that the SAB and TIRC should not be identified with the Tobacco and Health publication. 70123533-3533 (JD 093608); 70123536-3536 (JD 093610).

98. In response to these concerns, the Tobacco Information Committee, a subcommittee of TIRC, was formed in late 1957, from what was previously known as the TIRC Public Relations Committee. The committee was comprised of public relations employees from the companies and public relations counsel representing the companies, and one of its principal functions was to publish the Tobacco and Health newsletter. The first two issues of the Tobacco and Health newsletter were issued under the name of the Tobacco Information Committee and financed from the TIRC budget. 70123534-3534 (JD 093609); CTR-TIRC-MIN000001-0252 at 0125-0127 (JD 093292); CTRMN039046-9106 at 9056 (JD 092825).

99. In 1958, after 'the first two issues were published, the Tobacco Institute assumed responsibility for publishing the Tobacco and Health newsletter on behalf of Defendants. Even when published by the Tobacco Institute, there was close coordination with TIRC, and most editorial material derived from TIRC annual reports, the TIRC library, and other materials available through TIRC. CTR-TIRC-MIN000001-0252 at 0154, 0162 (JD 093292).

100. A 1968 Tobacco and Health Research procedural memorandum from Hill & Knowlton to William Kloepfer, Tobacco Institute Vice President, admitted that “[m]ost papers used in TH & R come from the Council for Tobacco Research Library through advance distribution of Ken Austin of CTR.” Zahn PD,

Cipollone v. Liggett,

12/18/86, 344:9-22.

101. The Tobacco and Health newsletter was a public relations vehicle used to influence health professionals. Its primary purpose was to present directly to the medical and scientific communities research material related to tobacco and health — material that frequently did not

*60

deal with tobacco but suggested other causes of cancer, such as viruses, air pollution, and previous chest ailments. Its secondary purpose was to attract the attention of the lay press to studies that challenged the validity of research linking cancer to cigarette use. A news release with each issue attracted press attention; one or both of the major wire services usually carried stories. In order to combat the effects of the Tobacco and Health newsletter, four non-governmental health agencies began issuing a Medical Bulletin on Tobacco in 1962. TIMN0081443-1457 at 1443-1444 (U.S. 21307); Brandt WD, 84:10-85:9.

102. In 1962, circulation of the newsletter reached 520,000, with about 315,000 copies going to doctors, dentists, and medical schools, and the rest going to writers and editors, public opinion leaders, all members of Congress, brokerage houses, tobacco groups, farm and supplier groups, industry groups, and member companies. Publication of research results helped make news and was coordinated with other publicity efforts. TIMN0070640-0656 at 0643 (U.S. 21299); TIMN0070657-0674 at 0661 (U.S. 22983); CTRMN015416-5435 at 5416-5417, 5421 (U.S. 79889); CTRMN015485-5502 at 5489 (U.S. 79893); CTRMN015412-5415 at 5415 (U.S. 79888).

103. In a procedural memorandum, Hill & Knowlton delineated specific criteria for selecting reports to be included in Tobacco and Health. The memorandum stated that research did not have to always deal specifically with tobacco; for example, research which suggested that other factors may cause diseases associated with smoking should be included; “[t]he most important type of story is that which casts doubt on the cause and effect theory of disease and smoking.” Brandt WD, 119:7-21; TIMN00721488-1491 (U.S. 63575); (U.S. 21302), (U.S. 21614); CTRPUB-LICSTMT001270-1281 (U.S. 32646).

b. TIRC/CTR Press Releases and Other Public Statements

104.TIRC/CTR, with the assistance of its public relations counsel Hill & Knowl-ton, and later Leonard Zahn, was remarkably effective in making certain that the Defendants’ position of “no proof’ and the need for “more research” reached the national media, and thus the public. Typically, news accounts of new medical findings would be accompanied by a press release or statement from TIRC/CTR insisting that “nothing new” had been found and the studies were “merely” statistical. Brandt WD, 78:18-79:2, 119:22-120:15. Moreover, TIRC/CTR was effective in mobilizing a relatively small group of skeptics and amplifying their views as if they were equal in number and significance to an emerging scientific consensus about the harms of smoking (discussed in detail at Section V(A)(3)(c),

infra).

Brandt WD, 79:6-8, 90:20-92:5;

see, e.g.,

500518759-8761 (U.S. 20636) (1958 year-end Hill & Knowl-ton/TIRC press release in which TIRC Chairman Timothy Hartnett asserts that “scientists of high professional standing have produced additional evidence and opinions that challenge the validity of broad charges against tobacco use”); 503283464-3467 (U.S. 22981) (TIRC’s Clarence Cook Little’s November 1959 response to Surgeon General Burney’s statement that begins, “Today, more than ever before, scientific evidence is accumulating that conflicts with or fails to support the tobacco-smoking theories of lung cancer.”); 500518873-8875 (U.S. 63601) (1960 Hill & Knowlton/TIRC press release quoting Little and titled “New Evidence Shows Complexities of Lung Cancer, Scientist [Little] Says”); 00552685-2690 (U.S. 47724) (1970 Leonard Zahn/CTR press release quoting Little that begins, “A considerable number

*61

of studies by independent scientists raise questions as to whether smoking has actually been shown to be a health hazard”); 60028206-8210 (U.S. 53301); 670307882-7891 (U.S. 21867); 670307882-7883 (U.S. 63574) (1969 CTR press release quoting Little that begins, “The scientist [Little] who has been associated with more research in tobacco and health than any other person declared today that ‘there is no demonstrated causal relationship between smoking and any disease. The gaps in knowledge are so great[.]’ ”); CTRPUB-LICSTMT001241-1545 at 1265 (JD 043276) (1970 Leonard Zahn/CTR press release quoting Little on genetic and environmental factor theories); 500518873-8875 (U.S. 20635); 500015901-5905 (U.S. 47778).

105. The relationship between TIRC/ CTR and Hill & Knowlton remained close for many years. Because TIRC had no headquarters and no staff when it was formed, Hill & Knowlton provided a working staff and temporary office space and assigned one of its experienced executives, Wilson Hoyt, to serve as Executive Secretary for the TIRC. In early 1956, the TIRC Executive Committee approved the relocation of TIRC’s offices to the building where Hill

&

Knowlton’s offices were located. At their January 29, 1964 meeting, the TIRC Executive Committee agreed to immediately transfer seven Hill & Knowl-ton employees, including Hoyt, to TIRC. TLT09020412064 (U.S. 88364); 93218985-8986 (U.S. 21116); TLT0900114-0115 (U.S. 88402); CTRMN0038163835 at 3825 (U.S. 21147).

106. Even after the Tobacco Institute (discussed further

infra

at Section 111(D)) was created in 1958, TIRC/CTR continued its public relations activities with the assistance of public relations counsel Hill & Knowlton, and later Leonard Zahn. 93218985-8986 (U.S. 21116); 70057072-7073 (U.S. 21983); 512678484-8499 (U.S. 51653).

107.As noted earlier, Hill & Knowlton gave advice and direction to the leaders of the Enterprise even before its actual formation in December of 1953. Thereafter, it provided public relations services for TIRC/CTR from 1954 until 1964. It provided the same services for the Tobacco Institute from 1958 until 1968, in 1979, and ag

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