Chapter 11, Part 2

By Frank Tursi, Susan E. White and Steve McQuilkin
JOURNAL REPORTERS
© Winston-Salem Journal

Publishing the mouse-house experiments in a scientific journal was, of course, out of the question. Since the 1950s, a general policy had evolved at RJR that researchers weren't allowed to publish anything about smoking and health. Most manuscripts that researchers wanted to publish apparently first had to be approved by the company's legal department.

Max Crohn, who was the associate counsel during the days of the mouse house and who would later become the company's general counsel, told outside RJR lawyers in the mid-1980s that it was the department's job ''to screen documents to determine if their publication could have an adverse impact on smoking and health litigation.'' Plaintiffs, he said, could use the articles against the company. Though unpublished manuscripts could be subpoenaed, Crohn didn't want to make it easy on opposing lawyers.

The R.J. Reynolds Tobacco Co. was once the largest cigarette company in the United States with a powerhouse of best-selling brands: Winston, Salem and Camel. But times changed, and as the case against smoking became more pronounced in the 1960s, RJR failed to adapt to the marketplace. Its rivals would eventually rush past it, and RJR's efforts to catch up would have a profound impact on the company and the cigarette industry.

Ralph Rowland, an administrator in the research department, spelled out the publication policy in a memo to managers and section heads in 1971. ''Papers on polycyclic hydrocarbons, hydrogen cyanide, carbon monoxide and similar materials should not be submitted for publication,'' he wrote.

Rowland later told outside RJR lawyers that everyone knew that top management and the legal department took such subjects very seriously. Crohn explained to the lawyers that it was ''not helpful to the company to discuss these constituents in the literature since this could draw attention to the product.''

Those weren't the only taboo subjects. Researchers Mary Stowe and Sue Stevenson weren't allowed to publish their work that documented that smokers retain a significant amount of particulate matter in their bodies. Crohn couldn't remember denying permission, but he told the outside lawyers that the decision would have been consistent with the policy that the company shouldn't publish anything that would help opponents and only provide a ''pat on the back'' for the author.

John Reynolds developed a method to remove carbon monoxide from mainstream smoke, but his supervisor told him in 1975 that the company's lawyers wouldn't allow him to publish it. Reynolds told the outside lawyers that he was denied permission because of proprietary reasons, but the company also feared that it would be forced to use palladium, which was needed in the process and was very expensive. The article wouldn't have contributed much to the literature, Crohn told the lawyers, and, if published, would only help the author and do nothing for RJR's business. Murray Senkus speculated to the lawyers that the legal department denied permission because it would have amounted to an admission that cigarettes contain carbon monoxide, which would have attracted attention.

The publication policy created tension between the scientists and the lawyers, who seemed to be exerting more and more control over the research department.

Alan Rodgman, who would publish more than 20 papers on the composition of cigarette smoke, urged his bosses in a memo in November 1974 to adopt a ''more liberal and consistent'' publication policy. He asked which course would eventually prove more harmful: not to publish in-house data on smoke composition and alleged hazardous substances, only to have the information come out in future lawsuits; or publish the data ''within a reasonable time'' with no comment on the health implications.

''I didn't always agree with those decision. In many ways, I thought the decision not to publish was wrong,'' Rodgman now says.

''Just think, you have 12 people on the board who year in and year out, day in and day out, made decisions that drove this company to the top 50 in this country. Lawyers on the other side are picking out two dozen decisions out of how many over 35 or 40 years? We pay guys $10 million who can't hit a damn ball two out of three times. Figure the percentage of good decisions they made or the ones you agree with over 35 years. It's probably 99 percent. If you had a ballplayer who could do that, you wouldn't have enough money to pay him.''

Company lawyers weren't only worried about outside publications.

Crohn didn't think the scientists were given enough direction in writing in-house reports after a review in 1970 revealed what he judged to be ''loose language'' in the reports. Crohn met with the R&D staff afterward to explain how the scientists should write reports. He gave examples of the types of words that should be avoided and stressed that conclusions had to be based on the data. It then became standard procedure for R&D managers to review all reports of their scientists after they had been reviewed by the scientists' immediate supervisors. Frank Colby noted that ''it was the responsibility of the writers and their boss to make sure that no sensitive information would creep into the reports.''

The threat of legal review had a chilling effect on what the researchers put in their reports, researcher Stuart Bellin said. He felt implicitly that he shouldn't write certain things.

Even ''wordsmithing,'' as one company lawyer called the legal editing, apparently wasn't enough to ease the lawyers' fears. Senkus wrote Crohn a week before Christmas in 1969, responding to a request by the lawyer on how potentially damaging reports could be removed from the files. ''Once it becomes clear that such action is necessary for the successful defense of our present and future suits, we will promptly remove all such reports from our files,'' Senkus replied in his memo.

He noted in the memo that the research division normally ''invalidates'' about 15 reports a year for various reasons: inaccuracies, errors in interpretation, ''purposeless speculation,'' confidentiality. ''As to the reports which you are recommending to be invalidated, we can cite misinterpretation of data as reason for invalidation,'' Senkus wrote. ''A further reason is that many of these are needless repetitions and are being removed to alleviate overcrowding of our files.''

Senkus now maintains that no reports were ever destroyed while he was research director. ''If a document was to be destroyed, the only reason for it would be if it was faulty science, knowing it was faulty science, but there would be no other reason to destroy them,'' he said in trying to explain the memo. ''In other words, he (Crohn) was given to understand that we would not destroy any documents.''

But that's not what the memo says. In it, Senkus seems to be outlining ways documents could be ''invalidated'' and removed from the files and presumably the spying eyes of plaintiffs' attorneys. ''You have discussions between two people. . . . I say what I say,'' Senkus said. ''It's clearly stated there. I would have to know the reason why the document would have to be destroyed, but before we did that I would have to have my say. The assumption could be made that the lawyer could say, `That was wrong,' but that's open to discussion.''

There was no dancing around the issue by Frank Colby: He said that Henry Ramm, RJR's general counsel before retiring in 1970, ordered him to destroy incriminating documents stored in the company library in the late 1960s.

''He (Ramm) wanted to cross me but I had a very clever way out,'' Colby explained. ''As a matter of caution _ since the premises were not protected against fire _ I automatically made a microfilm of every document in the files, and the microfilm was stored away from the actual documents. So when Henry Ramm asked me to destroy documents, I said, `No,' and he said `I'll fire you if you don't,' and I agreed because I knew the copies existed.''

Ramm, though, didn't know about the microfilm, said Colby, who also knew that the authors of the reports had copies in their own files. ''Henry wanted everything destroyed that didn't use legal technicalities. He said, `Anything which claims smoking causes disease, I want destroyed,' '' Colby said. ''That was absolute stupidity.''

The Best Offense

That RJR and other tobacco companies tried to hide their research on the health effects of smoking is, Colby laments, ''unfortunately correct.'' The executives and lawyers who ran Reynolds and the other companies, he said, weren't versed enough in the science of smoking to know any better.

''Between us girls, most of the executives in the industry believe smoking is guilty, but for political reasons they deny it,'' Colby said. ''That creates, in my judgment, an unresolvable conflict of conscience and interest. I think it absolutely despicable that anybody who thinks smoking is or may be guilty maintain a midlevel or high-level position (at a tobacco company).''

Colby, Rodgman and others in the company's R&D department urged their bosses to be more aggressive in attacking the science used by tobacco's critics. Let us do the research and publish the results that will prove our enemies wrong, they continually pleaded. Colby kept advancing the theory that smoking was simply one ''marker'' of bad health. People who smoked, he maintains, also don't eat right, don't exercise and drink too much. Who's to say that their health problems are attributed to smoking alone? he asks.

''The people who were the executives didn't have enough scientific perception to know what the problem was, so they believed guilty,'' Colby said. ''They were somewhat reluctant to accept the concept that smokers are not the best guys.''

An overweight, drunken smoker isn't exactly the image Ron Sustana would have come up with, but he, too, was urging executives to devise a strategy to blunt the negative publicity bombarding the industry. ''The anti-smoking forces could make the most outrageous, unfounded charge, and every newspaper in the country would run it on the front pages tomorrow,'' said Sustana, who as director of RJR's public-affairs department was on the front lines of the fight. ''Closer investigation over the next 90 days would show that it was worthless research, worthless science, but they never ran the rebuttal. So we got very gun-shy.''

The company was losing the war, Sustana realized in the late 1960s. Once the majority of people in the country believed that smoking was harmful, the battle was over. To stem the tide, Sustana wanted RJR to run ads countering the charges made by the anti-smoking groups. ''I wanted to do that, not because I thought the product was killing people. I thought it wasn't killing people but we were being hung for it,'' Sustana explained. ''So you could find documents maybe in that vein that would suggest that as long as the controversy's alive, we're alive. . . . I was in favor of keeping the question mark out there, keep the lines open because once they think it's no longer a controversy and proved, case closed. That was dangerous. The cigarette wasn't bad, but the public opinion was killing us.''

Taking on the enemy on both fronts _ the science and public perception _ wasn't the course that the cautious company lawyers advised. As long as cigarette consumption continued to rise, the bosses in the executive offices seemed willing to follow the advice. The road plotted by RJR's legal department throughout the 1960s and '70s ended at a dead end, noted Edward A. Horrigan, who joined the company after the battle had been lost in 1978 and rose to its highest ranks.

''They were like ostriches,'' Horrigan said of the company lawyers of the era. ''They stuck their heads in the sand and hoped it would go away. Well, it was never going to go away. So you had to be a step ahead in anticipating the worst and be prepared for it.

''Lawyers thought they were protecting the industry, but in my opinion the lawyers were the downfall of the industry,'' Horrigan said. ''They won't like that, but that's the way I feel. They're the ones who got us there and they're the ones who got us where we are now.''