Deposition of Dr. Wigand
In re Mike Moore, Attorney General, ex rel, State of Mississippi Tobacco Litigation, No. 94-1429 (Chancery Ct., Jackson, Miss.)
November 29, 1995
This is a portion of the transcript of a session of the pretrial deposition of Jeffrey S. Wigand. The November 29, 1995 testimony was given in a lawsuit brought by the State of Mississippi seeking reimbursement for the cost of smoking-related illnesses. (Note: Only Dr. Wigand's testimony is listed here.)
During testimony, Dr. Wigand was continuously interrupted by the tobacco lawyers in an attempt to "stop the genie from getting out of the bottle". Despite their efforts, Dr. Wigand and Attorney Ron Motley were able to get the facts out.
Testimony transcript
DR. JEFFREY S. WIGAND: having been first duly sworn, was examined and testified as follows:
EXAMINATION BY MR. MOTLEY [Mr. Motley is from Charleston, South Carolina, and is lead counsel for the plaintiffs]:
Q. Will you state your name for the record.
A. My name is Jeffrey, J-E-F-F-R-E-Y, Wigand, W-I-G-A-N-D.
Q. If you will, try to speak into the microphone, Doctor. And I have got you a glass of water over there.
My name is Ron Motley, from Charleston, South Carolina. If at any time you need to take a break, you just raise your hand, and we'll accommodate you, sir. And if you don't understand my question, if you will just acknowledge that, and I will try to rephrase it.
What is your address, sir?
A. I live at 1105 Colonel Anderson Parkway, Louisville, Kentucky 40222.
Q. And are you here today under subpoena, sir?
A. Yes, I am.
Q. Doctor, are you a medical doctor or a doctor of science?
A. I'm a doctor of science. I have a Ph.D. degree in endocrinology and biochemistry.
Q. Endocrinology?
A. Endocrinology, study of hormones.
Q. When did you receive those degrees, sir?
A. Well, I have several degrees. I have a bachelor's in organic chemistry from the University of Buffalo. I have a master's degree in biochemistry from the University of Buffalo. I have a Ph.D. degree from the University of Buffalo in biochemistry and endocrinology. I have a master's in science teaching from the University of Louisville.
Q. Doctor, what is your current job?
A. I'm employed by Jefferson County Public School System. I'm a science and Japanese teacher at du Pont Manual High School in Louisville, Kentucky.
Q. Were you formally employed by Brown & Williamson Tobacco Company?
A. I was employed by Brown & Williamson Tobacco Company from January 1989 until March 24th, 1993.
Q. How was it that you came to be employed by Brown & Williamson?
A. Early in 1988 I responded to an advertisement, I believe either in the New York Times or The Wall Street Journal, looking for a manager of a research function in the Mid-West. I sent my resume' in in response to that advertisement. I was subsequently contacted by phone by Bill Lodenbach, who was a representative of the executive research firm of Heinman & Company. We had some preliminary discussions on the phone, at which time he asked me several questions relative to my understanding of smoking issues and did I have any adverse positions relative to tobacco. That was followed up by an interview in New York City about a month or two later. And then the sequence of events led up to my employment by Brown & Williamson in November of 1988.
Q. And what job were you to hold with Brown & Williamson, sir?
A. The job I was hired for was vice president of research and development for Brown & Williamson Tobacco Corporation.
Q. To whom did you report?
A. I reported initially to Mr. Tommy Sandefur and then subsequently reported to Mr. Earl Kohnhorst.
Q. Who is Mr. Sandefur?
A. Mr. Sandefur at that time was president and chief operating officer of Brown & Williamson.
Q. And the other gentleman?
A. At the time I joined the company, he was a vice president of strategic planning for BATUS, which was the holding company for Brown & Williamson in the United States.
Q. Is that British-American Tobacco Company of the United States; is that an acronym for that, sir?
MR. BEZANSO [Tom Bezanson from Chadbourne & Parke representing Brown & Williamson] : Object to the form.
A. Yes, sir.
MR. MOTLEY:
Q. Go ahead, sir. Are you done with your answer.
A. Subsequently, Mr. Kohnhorst returned to Brown & Williamson as executive vice president of research and development, engineering and manufacturing.
Q. Sir, what did you understand to be your mission as the vice president of research and development for Brown & Williamson when you started work there?
A. Well, there were numerous conversations. During the recruitment process, I believe I had more that six interviews, including interviews from people from PAP [BAT] industries. It was my understanding that my charge was to develop a technical organization which was capable of addressing the issues of smoking in the 1980s and 1990s, and that is build a technical organization. I had specific conversations with BAT representatives, Mr. Alan Heard, which dealt with the development of a safer cigarette.
Q. A safer cigarette?
A. A safer cigarette. Also, at the same time, there were discussions in terms of development of an engineered product.
Q. What is an engineered product, sir?
A. A product similar --
MR. BEZANSON: I object and instruct him not to answer. We are getting into trade secret territory.
MR. MOTLEY:
Q. You can answer, sir.
A. An engineered product is one that is made artificially, not consisting totally of tobacco, much similar to that of which Premier was.
Q. All right, sir. Premier being an R.J. Reynolds product?
A. That's correct.
Q. All right. Now, Doctor, did you communicate, before you were hired, in writing with officials or representatives of Brown & Williamson about the type of activities that you hoped to be able to undertake if employed in the position of vice president of research and development?
A. There were numerous correspondence going back and forth. I don't think I ever used the word "safer cigarette" in the correspondence, but I clearly understood that from these conversations with Earl Kohnhorst, Mr. Sandefur, Mr. Heard. And I also, at the same time in the interview process, also suggested that a formation of a medical scientific advisory committee could be part of that process of developing a safer cigarette.
MR. BEZANSON: I move to strike as nonresponsive.
MR. MOTLEY: Sir, I would ask you to read the Case Management Order, and I will be glad to let you look at my copy. All objections are reserved, except to the kind that you made a moment ago about privileged matter and trade secrets.
Q. Now, sir, your first day with the company was on January the 3rd, 1989, I believe: is that correct?
A. That is correct.
Q. And your last day with the company was when?
A. March 24th, 1993.
Q. Sir, during the entire time, or shortly after you became employed by Brown & Williamson, did lawyers for the corporation involve themselves in the type of research you were doing?
A. I would say there was direct lawyer intervention in numerous research projects, review of research documents. I believe the first really direct involvement of lawyers in research matters occurred in the fall of 1989.
Q. Would you please elaborate on that for us?
MR. BEZANSON: I object and instruct not to answer if this requires the divulging of attorney/client privilege.
MR. MOTLEY:
Q. Were there any lawyers in this scientific meeting?
A. There were no lawyers at the scientific meeting.
Q. Were you meeting for the purpose of preparing for a lawsuit?
A. No, we were not.
Q. Okay. Will you please answer, sir?
A. The meeting involved a meeting of all of the research managers of all of the BAT companies. There was representatives from Brown & Williamson, which I was. There was Souza Cruz, which is the Brazilian entity, BATCO, which was the U.K. entity, Germany, which is BAT Cigarettan-Fabriken, and from the Canadian, Imperial Tobacco.
Q. And these were all scientists?
A. These were all scientists, the number one scientist of each and every one of the companies mentioned.
Q. At this meeting in Vancouver, British Columbia, sir, was there a discussion of the effort to develop a safer cigarette, as you have previously described that?
A. That meeting encompassed a number of topics such as nicotine analogues, discussed biological assays and biological testing methodologies, it discussed how to reduce selectively the particular noxae that was in tobacco smoke.
Q. Spell that, please.
A. N-O-X-A-E.
Q. What does that mean?
A. It is plural of noxus.
Q. What does that mean?
A. Poisonous substance.
Q. Poisonous substance. Anything else, sir?
A. How to find various scientific research group studies.
Q. Subsequent to that conference in Vancouver of scientists, was one of the scientists assigned to memorializing, or putting into writing, minutes or summaries of the discussions?
A. Those minutes of the meeting were memorialized by a gentleman by the name of Dr. Ray Thornton. The meeting, really, was conducted by Alan Heard.
Q. Who is Mr. Thornton?
A. Mr. Thornton was the secretary for the meeting but worked for Mr. Heard in the BAT. That generated, I'd say, roughly a 14 to 15 page, maybe more, document which summarized the minutes and the actions of the meeting. Subsequently, those meeting minutes were sent to me. I circulated the minutes throughout the corporation in terms of upper management.
Q. Including Mr. Sandefur?
A. Mr. Sandefur and Mr. Pritchard and those in upper management. At that time, there was significant objection to the content of the meeting, particularly since the meeting referred to non-addictive nicotine analogues. It talked about a safer cigarette. It talked about biological testing. Subsequent to that, a meeting was called in which Kendrick Wells, one of the attorneys --
MR. BEZANSON: I object. We are beginning to get into what sounds like attorney/client privilege. I instruct you to go no further in disclosure of any attorney/client privilege. I further object under Paragraph 16 of the Case Management Order on the grounds that this is a nonresponsive narrative.
MR. MOTLEY:
Q. Go ahead, sir. You were summoned to a meeting at which Mr. Wells attended?
A. I was.
Q. And who was there other that Mr. Wells?
A. Mr. Sandefur, Mr. Pritchard.
Q. Mr. Pritchard was the top man in the company. Mr. Sandefur was the second man, and Mr. Kendrick Wells was the top lawyer, correct?
A. No. He was not the top lawyer. He was assistant general counsel.
Q. He was the assistant to the top lawyer?
A. That is correct.
Q. And at this meeting, sir, tell us what, if anything, was discussed with reference to the minutes that were prepared by Mr. Thornton of the meeting in Vancouver.
MR. BEZANSON: I object on attorney/client privilege grounds and instruct not to answer.
MR. MOTLEY: You may answer sir.
MR. BEZANSON: Just a moment. I think it may be time for us to go make a phone call to Judge Myers. It sounds to me, having set up a predicate for a discussion with assistant general counsel present, that we're about to engage in discussion of privileged matters.
MR. MOTLEY: Sir, I don't know of anything in the order yesterday that calls for you to call upon Judge Myers when we are conducting the deposition. In fact, the Case Management Order states otherwise. If you want to send someone to try to do that -- This record is sealed, and that is all the protection I think you need.
MR. BEZANSON: The Case Management Order, Paragraph 17 specifically, directs that in circumstances such as this that the witness give the predicate to lay -- to identify that it is an attorney/client privilege matter and at that point, other than by appearance or phone call, the matter can be taken up with the court.
MR. MOTLEY: Well, why don't you send someone to try to find the judge, and I will see if I can get to something that doesn't cause you to be so concerned about this meeting.
MR. BEZANSON: The Case Management Order also calls for suspending at that point so it could be addressed.
MR. MOTLEY: It doesn't call for suspending it if you abate, or move away, from the subject that caused you to be exercised. And I'm about to do that. If you want to send somebody out to see if the judge is available, I won't ask him about Mr. Wells right at this point.
MR. BEZANSON: Are your representations that you will abate this --
MR. MOTLEY:
Q. Let me ask you some questions that don't involve anything Mr. Wells may have said in your presence. As a result of this meeting that you described -- I don't want to know what happened at the meeting -- but as a result of the meeting that you described, was there any change made in the minutes of the meeting in British Columbia?
A. Yes.
Q. What change was that?
MR. BEZANSON: I object. I believe you are continuing on in the course of disclosing attorney/client privileged matters.
MR. COLINGO [Joe Colingo from Colingo, Williams, representing R.J. Reynolds]: I think you ought to go off the record and go talk to the judge. This is going to be problematic. I think you ought to stop it right now.
ATTORNEY GENERAL MIKE MOORE: The order doesn't say that.
MR. COLINGO: Well, the order doesn't not say it either. The rules say you can.
ATTORNEY GENERAL MIKE MOORE: The order doesn't say it.
MR. COLINGO: Yes.
ATTORNEY GENERAL MIKE MOORE: It is a sealed deposition. The order does not say that.
MR. COLINGO: Doesn't make any difference.
ATTORNEY GENERAL MIKE MOORE: Well, show me where it says it, Joe.
MR. COLINGO: Well, show me where it doesn't say it. I mean, the rules say that when you have a problem that you can take it up with the court. There is no preclusion of that. I'd go take it up with the court. It is not my deposition, but I sure would.
MR. MOTLEY: I don't understand how you read Paragraph 17 that assists you in any way. It says the witness should go ahead and answer the question.
MR. BEZANSON: Until you get to Paragraph 19 that sets forth the procedure for dealing with disputes during depositions.
MR. MOTLEY: I'll tell you what I'm going to do. I'm going to go forward. And if you want to walk out, you can walk out.
MR. BEZANSON: No. Those are not the proceedings the Case Management Order sets forth under Paragraph 19.
MR. MOTLEY: I don't agree with your interpretation. I'm going forward with the deposition. If I'm wrong, it will be stricken later.
MR. BEZANSON: That is not what the Case Management Order proposes. The Case Management Order proposes that there be no record of a privileged nature. And if disputes arise during depositions that cannot be resolved by agreement and if not immediately resolved will significantly disrupt the deposition schedule, would require a rescheduling of the deposition or might result in the need to conduct a supplemental deposition may be presented to the court by telephone.
MR. MOTLEY: Where do you read into Paragraph 19 anything about a privileged matter?
MR. BEZANSON: We are now having the very kind of dispute arising during depositions --
MR. MOTLEY: No, sir. We are not having a dispute at all. Paragraph 17 specifically says the witness shall nevertheless answer questions. And I'm going to proceed --
MR. BEZANSON: If we are not having a dispute, it sure sounds like it to me. And Paragraph 19 of the Case Management Order dictates how these disputes are to be resolved.
MR. COLINGO: Paragraph 19 states specifically that the court reporter shall attend the judge's conference, right here at the bottom of it.
MR. MOTLEY: Well, when you set it up, I'm sure she will be glad to go.
MR. BEZANSON: Pursuant to Paragraph 19, I instruct the court reporter to suspend operations until we have had an --
MR. MOTLEY: Well, there is nothing in this order that says the court reporter listens to anything you say.
Q. Sir, will you please answer my question and tell me whether or not, as a result of that conference, without telling me who said what, was there any change made in the composition of the minutes which you previously described prepared by Mr. Thornton?
MR. BEZANSON: I continue to object and instruct not to answer. We are not only proceeding in contempt of the TRO, but now with utter disregard to Paragraph 19 of Case Management Order in this case. There is a telephone right here. We can call the judge.
MR. MOTLEY: You got thirty lawyers. Go get him on the phone.
Q. Can you answer my question?
MR. BEZANSON: The harm will be done by the time we get him on the phone if the attorney/client privileged material is disclosed.
MR. MOTLEY: Why don't you send someone to call him?
MR. BEZANSON: You just represented to me a moment ago that you would abate that issue.
MR. MOTLEY: I did. I didn't mention Mr. Wells' name or any advice he gave. The fact that he was at a meeting when something happened doesn't protect you with the attorney/client privilege, sir, despite the fact I understand y'all believe that very heartedly.
MR. BEZANSON: No. I don't believe that. I believe the judge is the one who resolves those matters, neither you nor me, but the judge.
MR. MOTLEY: All right. At Page 36, since you're fond of quoting the judge, the judge said, the court is also going to reserve any and all rulings that might be advanced by any of the parties after the deposition is complete to strike the deposition for whatever means the movement would bring up. Now, you can go find the judge. And if he wants to hear this, I'm glad to stop and go forward. But I'm going forward.
MR. BEZANSON: That does not cover privileged matters.
MR. MOTLEY: Q. Answer my question, please, sir.
A. Can I ask you to repeat the question?
MR. BEZANSON: -- under the Case Management Order --
MR. MOTLEY: Sir, if you continue to disrupt this, I'm just going to walk up there close and let him state his answer for the record. And whether you hear it or not, I care not.
Q. Will you please tell me so I can hear what your answer is?
A. Could you please repeat the question?
Q. Yes. Did they change the minutes?
A. Yes, they did.
Q. Did they eliminate 12 pages of the minutes?
A. Roughly 12 pages of the minutes.
Q. And what did they eliminate, the stuff that said cigarettes were harmful?
A. They eliminated all reference to anything that could be discovered during any kind of liability action in reference to a safer cigarette. Statements were made that anything that eludes [alludes] to a safer cigarette clearly indicates that other cigarettes are unsafe, and it, furthermore, would acknowledge that nicotine is addictive.
MR. BEZANSON: I object and move to strike on the grounds before stated.
MR. MOTLEY: You don't have to make that kind of objection sir. It is preserved.
Q. Let me ask you, sir: How many conversations would you say you had between 1989 and 1993, when you were dismissed by Mr. Sandefur, about cigarette smoking and the addictive nature of nicotine?
MR. BEZANSON: Object to the form.
MR. MOTLEY: Go ahead.
A. There have been numerous statements made by a number of officers, particularly Mr. Sandefur, that we're in the nicotine delivery business --
MR. MOTLEY:
Q. The nicotine delivery business?
A. --and that tar is nothing but negative baggage.
Q. Tar is negative baggage. And so, were you in the presence of Mr. Sandefur, the president of the company, when he voiced the opinion and belief that nicotine was addictive?
MR. BEZANSON: Object to the form.
MR. MOTLEY: You can answer, sir.
A. Yes.
MR. MOTLEY:
Q. And did he express that view on numerous occasions?
MR. BEZANSON: Object to the form.
A. Frequently.
MR. MOTLEY:
Q. I'm going to show you, sir, Mr. Sandefur's testimony under oath before the Congress of the United States when he was sworn to tell the truth.
MR. BEZANSON: May I have a copy, please, of anything marked and being shown to the witness?
MR. MOTLEY: This will be Exhibit 10.
(Exhibit 10 was marked.)
MR. MOTLEY:
Q. Can you see that on the screen, sir?
A. Yes.
Q. Do you see what I have highlighted, sir?
A. I cannot see it.
Q. See?
A. Yes.
Q. Now, sir, pursuant to the Case Management Order --
Will this be on the TV for the jury or the judge or whoever sees it?
Do you see where I have highlighted where Mr. Sandefur swore to tell the truth under oath under penalty of perjury what he told the Congress of the United States?
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Do you see what he said, sir?
A. Yes, I do.
Q. He said, "I do not believe that nicotine is addictive." Do you see that?
A. Yes I do.
Q. Is that the opposite, contrary to what he has expressed to you numerous times?
A. That is correct.
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. It is not true, is it?
A. It is not true.
Q. Did you have any discussions, sir, with Mr. Sandefur -- By the way, Mr. Sandefur was a sales guy, wasn't he? He wasn't a lawyer, correct?
A. Was he a lawyer? No, he wasn't.
Q. He was a salesman at one time for R. J. Reynolds?
A. Yes, he was.
Q. Now, can you tell me, sir, whether Mr. Sandefur at any time sought to keep you, Jeffrey Wigand, from attempting to develop or conduct research that would lead to the development and marketing of what you have described as a safer cigarette?
MR. BEZANSON: Object to the form.
A. Yes.
MR. MOTLEY:
Q. Will you describe how he did it as best you can?
A. Shortly after the Vancouver meeting, Sandefur called me to his office and told me that there would be no further discussion or efforts on any issues related to a safer cigarette, even though there was research being conducted in both Canada and in the U.K. in removing selectively noxae.
Q. That's the term you defined earlier as poisonous substance?
A. Tar.
Q. Okay.
A. And that any activity or elusion [allusion] to a safer cigarette would be deathly contrary to the company's position relative to liability issues associated with smoking and health issues and that that matter would not be pursued any further and I was not to discuss it anymore. He also told me at that time there will be no scientific and medical advisory committee to provide direction or support to the development of a safer cigarette.
MR. BEZANSON: Move to strike as nonresponsive, pursuant to Paragraph 16.
MR. MOTLEY:
Q. Dr. Wigand, were you a designee or representative of Brown & Williamson who was to attend certain industry tobacco-industry-wide trade association meetings?
A. From time to time, yes.
Q. Were you allowed to go -- Those are meetings to discuss scientific matters?
A. That's correct.
Q. Were you allowed to go to those meetings alone, or were you required to take some kind of person with you?
A. Depends on the type of meeting. A number of times I went to meetings, particularly on ignition propensity, I was accompanied by a lawyer.
Q. Ignition propensity?
A. Ignition propensity.
Q. Is that sometimes called a fire safe cigarette?
A. Fire safe cigarette, yes.
Q. And they sent a lawyer with you?
A. That's correct.
Q. Was this lawyer a scientist?
A. No, he was not.
Q. Sir, when you were the director of research and development, how many people did you have working for you?
A. I believe I was the vice president of research and development.
Q. What did I say?
A. Director.
Q. Okay. I'm sorry. As vice president, were you the director?
A. Yes.
Q. So I am right. How many folks did you have working for you?
A. At the end, approximately 243 scientists and workers.
Q. And did you have a budget? Do you recall having a budget?
A. I had a budget.
Q. What was that, approximately?
A. That was approximately 28 to 30 million dollars in operating expense and between 4 to 7 million dollars in capital expense.
Q. Sir, as part of you orientation, if I can use that, were you required to go to Kansas City, Missouri to meet with the lawyers of Shook, Hardy & Bacon?
A. That was one of the things that was accomplished during my orientation.
Q. And without telling me anything they told, what was the general nature of what you were asked to do while you were at the law firm?
A. Was review the scientific literature, what has been published on smoking and health issues, Swedish Twin studies, Auerbach studies.
Q. Review them with whom?
A. With the attorneys at Shook, Hardy & Bacon.
MR. BEZANSON: Object and move to strike the answer. You're beginning to trench into work product and attorney/client privilege areas that was not telegraphed by the questions. So I move to strike on attorney/client privilege and work product grounds.
MR. MOTLEY:
Q. In the course of your tenure at Brown & Williamson, did you become interested in whether or not there had been, before you joined the company, research on such things as nicotine, whether it was addictive, or biological activity of cigarettes and things like that?
A. Yes, I did.
Q. Did you inquire as to whether that research was conducted, and, if it was, were the reports of the findings available to you as vice president?
A. The research work that preceded me?
Q. Yes. Were you told that it existed?
A. I was not told it existed. I was not made available to those studies. However, in the various meetings with some of the senior folks, not only in my group, but folks that had long tenure in the company as well as overseas meetings, I learned that various studies were undertaken, particularly relative to nicotine, nicotine ranges, biological activity, biological studies, looking at contrasting of various biological activity of various types of blends, various types of cigarettes.
MR. BEZANSON: Move to strike everything following his statement that he wasn't told.
MR. MOTLEY:
Q. So what you just described for the jury and the court under oath was the type of studies you were asking about and learned may have indeed been conducted; is that correct?
MR. BEZANSON: Object to the form.
A. That's correct. It was totally alien to what I experienced in the pharmaceutical and biomedical industry. If I was an advisor, I would never be precluded from understanding what research transpired over 20 years prior to me taking a position.
MR. MOTLEY:
Q. Would you say, sir, that company officials suppressed information of a scientific nature that you considered to be important in discharging you mission as vice president of research and development?
MR. BEZANSON: Object to the form.
A. There was no disclosure of that information.
MR. MOTLEY:
Q. Would you characterize that as a suppression?
MR. BEZANSON: Object to the form.
A. Yes.
MR. MOTLEY:
Q. You say you later learned in informal conversations with other scientists that research had, in fact, be conducted. At any time while you were employed by Brown & Williamson, did the lawyers for Brown & Williamson ever explain to you what had happened to the copies of those researches?
MR. BEZANSON: Object and instruct not to answer on attorney/client privilege grounds.
MR. MOTLEY:
Q. Did the lawyers tell you what happened to that paper?
A. No, they did not.
MR. BEZANSON: Object and instruct not to answer on attorney/client grounds and request we adjourn so we may petition the court for a ruling on the proper bounds of attorney/ client privilege which Brown & Williamson in no way, shape or form waives and which is not the province of Mr. Wigand to discuss as it is Brown & Williamson's privilege undertaken while he was a representative and employee of Brown & Williamson.
MR. MOTLEY:
Q. How about Mr. Sandefur, the salesman, did he ever tell you what happened to those studies?
A. No, he did not.
MR. MOTLEY: We need to change the tape. Do you want to take a little break?
THE WITNESS: Please.
(A recess was taken.)
MR. MOTLEY: For the record, I don't know whether you have been able to find Judge Myers, but we tried to find Judge Landrum.
MR. BEZANSON: We have been trying to locate the judge and have yet been unsuccessful.
MR. MOTLEY: She is trying to find Judge Landrum in the event you want to inquire of him about your attorney/client privilege.
Q. Are you ready to start, sir?
A. Yes.
Q. Dr. Wigand, to your personal knowledge, did at any time Mr. J. Kendrick Wells, associate general counsel of Brown & Williamson, alter scientific research?
MR. BEZANSON: Object and instruct not to answer on attorney/client privilege grounds.
MR. MOTLEY: You can answer sir.
A. Yes.
MR. MOTLEY:
Q. He did. On how many occasions?
A. Several.
Q. How do you know that, sir?
A. Well, he changed the minutes of the meeting in Vancouver to delete anything that could be discoverable.
MR. BEZANSON: Object and move to strike on attorney/client privilege grounds.
A. (Continuing) Documents of research conducted at BAT, South Hampton, to be pre-screened by Kendrick Wells prior to dissemination to the R&D folks.
MR. BEZANSON: Objection. Instruct not to answer and move to strike on attorney/client privilege grounds. And can we re-double our efforts to locate the judge?
MR. MOTLEY:
Q. Did Mr. Wells stamp "scientific research" with any type of stamp, sir?
MR. BEZANSON: Object. Attorney/client privilege grounds and instruct not to answer. And in accordance with the terms of the Case Management Order, request that we suspend the deposition until such time as we can have this matter resolved by the court.
MR. MOTLEY: You can answer the question, sir.
A. Yes.
MR. MOTLEY:
Q. He did?
A. Yes.
Q. As a scientist, did you take objection to lawyers reading your scientific work?
A. Yes, I did, as well as many of the other scientists at BAT.
Q. They did that in your presence?
A. That's correct.
Q. And as a scientific, sir, did you find it scientifically unethical that a lawyer would edit or suppress information contained in a scientific report?
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Did you, sir?
A. Yes.
Q. Did you complain about that?
A. Yes.
Q. To whom did you complain?
A. To Sandefur, to Kohnhorst, to Wells. The principle behind his editing documents was removing any reference that would be discoverable during any kind of liability action.
MR. BEZANSON: Object and move to strike on attorney/client privilege grounds.
MR. MOTLEY:
Q. And Mr. Sandefur, the former salesman and president of Brown & Williamson, how did he receive your objections to Mr. Wells' suppressing and editing scientific studies?
MR. BEZANSON: Object to the form.
A. He supported it.
MR. MOTLEY:
Q. He supported Mr. Wells' efforts in suppression?
A. That's correct.
Q. On more than one occasion?
A. On several occasions.
Q. In fact, sir, did Mr. Sandefur have a position that if science affected sales, the science would take the back door?
MR. BEZANSON: Object.
A. Yes.
MR. MOTLEY:
Q. Did he express that to you?
A. Several times.
Q. Indeed, sir, was that the policy of Brown & Williamson while you were there so far as you observed it?
MR. BEZANSON: Object to the form.
A. Yes.
MR. MOTLEY:
Q. And, sir, did you make complaints about that particular type of policy, that is sales over safety?
MR. BEZANSON: Object to the form.
A. I had a number of discussions with Mr. Sandefur, particularly over safety issues. I felt that the additives as they were reviewed and the policy within B&W did not adequately use what I considered the proper duty of care on a scientific level. It was inconsistent with what was being done overseas in other BAT affiliates as well as what I knew was going on in the other industries.
MR. BEZANSON: Move to strike, nonresponsive with respect to Paragraph 16 of the Case Management Order.
MR. MOTLEY:
Q. Sir, at any time did you learn that Brown & Williamson was using a form of rat poison in pipe tobacco?
MR. BEZANSON: Object to the form.
A. Yes.
MR. MOTLEY:
Q. What form of rat poison is that, sir?
MR. BEZANSON: Object to the form.
A. It is a compound called coumarin. It was contained in the pipe tobacco --
MR. BEZANSON: Object on trade secret grounds and instruct not to answer.
MR. MOTLEY: You are objecting that the man is revealing that you used rat poison as a trade secret?
You may answer, sir.
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Go ahead. If they used rat poison in pipe tobacco that human beings were taking in their bodies, I want to know about it. Will you tell me about it, sir?
MR. BEZANSON: Object to the form.
A. I was concerned of the continued use of coumarin in pipe tobacco after the coumarin had been removed from cigarettes because of the FDA not allowing the use of coumarin in foods with additives. The reason why it stayed in pipe tobacco is the removal would change the taste of the pipe tobacco and, therefore, affect sales. They continued to use it until the time I left, even after the NT program --
MR. MOTLEY:
Q. What is that, NT?
A. I'm sorry. The National Toxicology program released evidence that coumarin was lung-specific carcinogen.
Q. That means a cause of cancer?
MR. BEZANSON: Move to strike as nonresponsive, and object to the form of the pending question.
MR. MOTLEY:
Q. Carcinogen being a cause of cancer?
A. That's correct.
Q. And you asked that coumarin be removed, and you were told what?
A. I asked --
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Sir, you can answer the question. To whom did you make your request --
A. I made that specific --
Q. -- that coumarin be removed because it was a form of cancer-causing substance?
MR. MOTLEY: Object to the form.
A. Once it had been released in the NTP study, even though it was still being used in Sir Walter Raleigh aromatic tobacco at significantly higher levels, other pipe tobacco manufacturers had removed it. There was clearly a document in B&W's file that the use of coumarin was in direct conflict with existing B&W policy on additives.
MR. BEZANSON: Move to strike as nonresponsive.
MR. MOTLEY:
Q. Let me see if I understand you correctly, sir. You learned that coumarin had been taken out of cigarettes because it was dangerous, and you learned that coumarin had been taken out of other companies pipe tobacco because it was dangerous, and you requested that coumarin be taken out Sir Walter Raleigh pipe tobacco; is that fair?
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Is that what you said?
A. Yes, I did.
Q. And what did Mr. Sandefur tell you when you asked him to take that rat poison out of that particular pipe tobacco?
MR. BEZANSON: Object to the form.
A. We got into a very significant debate. I'd probably consider it an argument. And that it could not be removed because it would impact the sales of the STP business particularly since the aromatic pipe tobacco was one of the higher selling products.
MR. MOTLEY:
Q. And until the day that you were dismissed by this same former salesman, Mr. Sandefur, the president and CEO of Brown & Williamson, did they continue to have coumarin in the pipe tobacco that you described?
MR. BEZANSON: Object to the form.
A. Yes.
MR. MOTLEY:
Q. They did?
A. Yes.
Q. Sir, were you the senior person in research and development?
A. Right.
MR. MOTLEY: Excuse me.
Q. Sir, this product that you described that had coumarin in it, was it nationally distributed, to your knowledge?
A. Yes, it was.
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. It was distributed all over the United States, including Mississippi.
MR. BEZANSON: Object to the form.
A. That is correct.
Can we just do it standing?
MR. MOTLEY:
Q. Well, that is what he is supposed to do, but since they can't find the judge, I guess he decided to do it otherwise.
You were the senior person in research and development?
A. Yes, I was.
Q. And there was no scientist or researcher with the company higher than you in the structure of the company; is that correct?
A. In terms of experience and education?
Q. No. You were the top management guy in research and development?
A. Yes.
Q. And one of your jobs was to report to and consult with and give advice to Mr. Sandefur, was it not?
A. That is correct.
Q. Would you say generally Mr. Sandefur was receptive to your ideas to try to find a safe cigarette?
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Was he receptive to your advice and counsel about trying to find a safe cigarette?
MR. BEZANSON: Object to the form.
A. No.
MR. MOTLEY:
Q. What did he say to you in general in the various times you recommended a search for a safe cigarette?
MR. BEZANSON: Object to the form.
MR. MOTLEY: You can answer.
A. That there can be no research on a safer cigarette. Any research on a safer cigarette would clearly expose every other product as being unsafe and, therefore, present a liability issue in terms of any type of litigation.
MR. BEZANSON: Move to strike.
MR. MOTLEY:
Q. Have you, sir, had brought to your attention since you left Brown & Williamson documents which predated your employment by Brown & Williamson which demonstrated that this attitude of worry about a safe cigarette spilling over and affecting litigation -- Let me start over again.
MR. BEZANSON: Object to the form until such time and further object on --
MR. MOTLEY: I withdrew it. I withdrew it. Do you object to my withdrawing it?
MR. BEZANSON: Not a bit.
MR. MOTLEY:
Q. Let's start over. Have you seen documents, Doctor, since you left Brown & Williamson which deal with law department involvement in scientific policy issues?
A. Yes.
MR. BEZANSON: Object on attorney/client grounds and instruct not to answer. Since you answered, move to strike.
MR. MOTLEY:
Q. Do those documents that you have seen generally reveal that prior to your employment with Brown & Williamson, the same Mr. Wells was involved in editing and suppressing scientific research?
A. Yes.
MR. BEZANSON: Object on attorney/client privilege grounds and instruct not to answer and request that we be furnished copies of these documents so we can review them, further, specifics of the attorney/client privilege objections and instructions.
MR. MOTLEY:
Q. Do you, sir, have a particular document in mind just generally as you sit here today, since you don't have any documents in front of you, that would reflect what you just said?
A. All one has to do is go on the internet.
Q. And what would one find on the internet that would support what you just said?
MR. BEZANSON: Object.
A. I think you'd either find it on the internet, or I think you could find it published in JAMA magazine.
MR. MOTLEY:
Q. And these are documents that reflect Mr. Wells doing what?
MR. BEZANSON: Object and instruct not to answer, attorney/client grounds. Please specify for us the documents you are referring to so we can review it further for specifications for the objections.
MR. MOTLEY:
Q. Sir, are you saying that these documents that he is claiming privilege to are in a magazine put out by the American Medical Association?
A. It appeared in a recent Journal of the American Medical Association publication. It is also available on the internet.
Q. And --
MR. BEZANSON: Objection on attorney/client grounds continues because these documents were stolen, and there was no waiver of -- We have good reason to believe the documents were stolen, and there is no waiver of the attorney/client privilege on that ground.
MR. MOTLEY:
Q. Who would steal such important documents as that?
A. I didn't.
Q. You didn't? Can you tell me, sir, these documents you referred to involve Mr. Wells?
A. There are a number of documents that involve Mr. Wells' actions in terms of dealing with scientific documents.
Q. And they predated these documents that showed him editing and suppressing scientific research by Brown & Williamson? Did they predate your employment with Brown & Williamson?
MR. BEZANSON: Object to the form and instruct with respect to the privilege.
A. Yes.
MR. MOTLEY:
Q. They did. And you say these documents are reported in a medical magazine put out by the American Medical Association?
A. They are put out in a referee journal which is the Journal of the American Medical Association. They are also available to anybody who wants to get on the internet.
Q. Now, sir, I want to ask you some questions about how your job performance was evaluated while you were at Brown & Williamson. Did you have annual or periodic job performance reviews?
A. Yes, I did.
Q. And how did you do?
MR. BEZANSON: Object to the form.
A. Overall, above average performance.
MR. MOTLEY:
Q. And, sir, did you receive the Quality Leadership Award from your research colleagues at B&W?
A. Yes, I did.
Q. And what was that?
A. They gave me a eagle that cited on it "For Quality Leadership To Our Friend, Mentor and Coach."
Q. And do you still have that?
A. I most certainly do.
Q. And do you have copies or have access to copies of the commendations of performance that you say you received from Brown & Williamson?
A. Yes, I do.
Q. Now, sir, did you maintain a log or a diary, a written log or diary in the laboratory at Brown & Williamson while you were employed there?
A. I maintained two logs.
Q. Would you describe them one after the other?
A. I had a standard research notebook that many scientists in the laboratory generate on a daily basis which reflects their work or comments or their reflections on work, what meetings. I kept a log in a bound scientific notebook, numbered page, that really reflects contemporaneously things that happened. I do not have that. That was sequestered from me when I left Brown & Williamson. However, I also have another diary which is a duplicate.
Q. And where is that diary, sir?
A. In my possession.
Q. And, sir, have you recorded in any fashion your recollections of events -- Have you recorded -- Excuse me -- I don't want you to tell me where it is, but just generally, have you recorded somewhere --
A. I have a videotape, and I put it in a secure place, of everything that has transpired while I was at Brown & Williamson in which I actually taped myself.
Q. Discussing the events that occurred?
A. Discussing the events that occurred back to when I first joined the company.
Q. And did you discuss in that video the inference of suppression by Mr. Kendrick Wells and Mr. Sandefur of scientific research?
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. Did you, sir?
A. Yes.
Q. Did you discuss the other matters in that video that you have in a safe place, the other matters we've discussed so far in a general way?
A. Yes, plus more.
Q. Plus more. And we've not indeed even gotten started good, sir, on my questions.
Sir, have you been requested to serve in a scientific consulting fashion with the Food & Drug Administration of the United States Government?
A. Yes, I have.
Q. Have you been asked to give testimony by the United States Department of Justice in an antitrust investigation currently being undertaken against Brown & Williamson and others?
MR. BEZANSON: Object to the form.
A. Yes, I have.
MR. MOTLEY:
Q. And were you subpoenaed, sir, to come to Pascagoula, Mississippi and to give testimony to the Department of Justice this morning?
A. Yes, I was.
Q. And did you appear, attend and give testimony under oath?
A. Yes, I did.
Q. Sir, have you been subpoenaed to appear before a federal grand jury, criminal grand jury in regard to matters relating to the tobacco industry?
MR. BEZANSON: Object to the form.
A. Yes, I have.
MR. MOTLEY:
Q. And do you fully intend to cooperate with the U.S. Department of Justice and the grand jury in this inquiry?
A. Yes, I do.
Q. Sir, can you tell me why you felt it necessary to record and store in a safe place by videotape what you learned and what happened to you at Brown & Williamson?
MR. BEZANSON: Object to the form.
A. I'm sorry. I was--
MR. MOTLEY: Can you tell us, share with us, why you felt it necessary to do by videotape and place in a safe place your recollection of the events that occurred while you were at Brown & Williamson?
MR. BEZANSON: Object to the form.
A. On April 22nd, 1994 I received a threat on my daughters. On April 28, 1994, I received a second threat warning me further. At that time, I went to the local FBI. I reported it. I was concerned for the welfare of my children. I became concerned for my own welfare. And I thought I'd chronicle and memorialize if something ever happened to me.
MR. BEZANSON: Move to strike.
MR. MOTLEY:
Q. Sir, were you recently served with a lawsuit by Brown & Williamson in your hometown of Louisville, Kentucky?
A. It's the second time.
Q. The second time that you were served. Will you describe for the court, for his information, how it was you were served with the papers that let you know they were suing you?
A. This time or the first time?
Q. This time.
A. I was leaving du Pont Manual High School, and I was proceeding to my car with two other teachers. I don't know who the service officer was, but he drove across the parking lot rather abruptly in a high speed. At that time, he almost hit the other two teachers walking. He pulled his car in front of my car and jumped out and said, Jeff, you are served.
Q. Did you know the gentleman?
A. No. But he was a danger, I think.
Q. Did you feel that this was an invasion of your rights?
A. First of all, it was trespassing on school property. Second of all, he could have done it in a much more professional manner. I would have accepted the lawsuit at my home. He did not have to do it in the school in the manner in which he did it.
Q. Sir--
A. I was just wondering if there was an objection.
Q. No, they don't object to you being served that way, I'm sure.
MR. BEZANSON: Object to the comment on the absence of objection.
MR. MOTLEY:
Q. Can you tell me, sir, whether or not you, while with Brown & Williamson, recommended that a toxicologist be hired by the company?
A. I recommended a number of different skill sets be hired by the company, in particular Brown & Williamson never had a toxicologist, in the matter in which additives were reviewed within the company do not meet state-of-the-art nor what I would consider technical due diligence. No testing was done either on the additive before or after use or as a result of pyrolysis. It was a paper process.
Q. That is--
MR. BEZANSON: Move to strike as nonresponsive.
MR. MOTLEY:
Q. I don't think he is done yet. But pyrolysis is in lay language, what is that?
A. A pyrolysis is burning. I was concerned that many additives that were being used were generally approved based on grass, were generally recognized as safe, as well as FEM approval, which was basically for ingestion or topical application. Most of the additives used by the industry, at least at Brown & Williamson, are burnt. And I think there are different burning fates associated with additives when they are burnt rather that when they are ingested or topically applied. In order to do that in what I considered a duty of care manner, I thought a professional toxicologist that was board certified be hired.
MR. BEZANSON: Move to strike.
MR. MOTLEY:
Q. And, subsequently, was a toxicologist hired?
A. yes, he was.
Q. Who had to approve the toxicologist that you recommended before he would be hired?
A. Well, I had some numerous battles with the law department.
Q. The law department had to approve who was hired to serve as a scientist for the company; is that correct?
A. Yes.
Q. I want to make sure that I understood correctly what you told me earlier. When communications between scientists at Brown & Williamson or between scientists at British-American Tobacco Company and Brown & Williamson were exchanged in writing, did I understand you to say they had to come through Mr. Wells or his law department first?
MR. BEZANSON: Object to the form.
A. There are a number of reports that were considered sensitive, before I could receive them had to be reviewed by Kendrick Wells.
MR. BEZANSON: Object and move to strike, attorney/client.
A. (Continuing) Some of the reports were never kept on premises. They were sent back.
MR. MOTLEY:
Q. Back where?
A. Back to BAT, South Hampton, so they would not be discoverable.
Q. You mean in England? They were sent back across the water?
A. That's correct.
MR. BEZANSON: Move to strike, attorney/client.
MR. MOTLEY:
Q. And did they bear any stamp on them that Mr. Wells or one of his underlings may have placed on them?
A. I don't understand.
MR. BEZANSON: Object to the form. Instruct not to answer on attorney/client privilege grounds.
MR. MOTLEY:
Q. Have you seen scientific documents that had something like attorney/client work product, privileged, confidential, prepare for litigation on scientific reports? Did you see those stamps on some of them?
A. On a number of reports, yes.
MR. BEZANSON: Object to the form.
MR. MOTLEY:
Q. To your knowledge, were these scientific reports prepared for a lawsuit or prepared to try to understand the chemistry of smoke and the biological effect of cigarettes on human beings?
MR. BEZANSON: Object to the form and instruct not to answer on work product. Attorney/client grounds appear to be elicited.
