DOJ Lawyers Say Requested Smoking-Cessation Program Would Not Cover All U.S. Smokers

Department of Justice lawyers on Thursday during the conclusion of DOJ's civil racketeering lawsuit against several major U.S. tobacco companies said the government no longer seeks industry-funded cessation programs to focus on all 45 million U.S. smokers, the Washington Post reports. Rather, DOJ is seeking the establishment of a program for an unspecified number of future smokers who might become addicted to cigarettes within the first year of the trial's conclusion. DOJ officials declined to project the number of people that would be included, but the Post notes that HHS estimates about 1.3 million people per year become daily smokers (Leonnig, Washington Post, 6/10).

DOJ attorney Stephen Brody on Tuesday said that the government no longer was seeking an anticipated $130 billion over 25 years to fund smoking-cessation programs, as was recommended during testimony by government smoking expert Michael Fiore. Brody instead said DOJ was asking for $10 billion to fund a five-year program. The Post and the Los Angeles Times on Wednesday reported that sources close to the case said the trial lawyers wanted to request $130 billion but were pressured by politically appointed officials in the attorney general's office to reduce the request. The Los Angeles Times' source specifically cited Associate Attorney General Robert McCallum. The Post on Wednesday also reported that DOJ lawyers asked two of their own witnesses to tone down recommendations about penalties for the tobacco companies.

A number of Democratic lawmakers on Wednesday sent letters to DOJ Inspector General Glenn Fine urging him to investigate the situation (California Healthline, 6/9). Sen. Frank Lautenberg (D-N.J.) on Thursday requested a congressional hearing on DOJ's handling of the case (Janofsky, New York Times, 6/10).

Lead DOJ attorney Sharon Eubanks -- after reportedly "losing an internal battle" with DOJ officials over reducing the scale of the program -- on Thursday told U.S. District Judge Gladys Kessler that the revision from $130 billion to $10 billion was made to comply with a federal appeals court decision in February, the Los Angeles Times reports. The appeals court ruled that DOJ could not request past profits to be included in damage awards. Eubanks said the revised program was more likely to win approval in appeals court (Levin, Los Angeles Times, 6/10).

The New York Times reports that implicit in Eubanks explanation was an "acknowledgement that the previous approach, intended to help current smokers kick the habit, was backward looking and, like the effort to get at past profits, inconsistent with the law." Tobacco company attorneys objected to DOJ's new request, "insisting that they needed extra time to offer a suitable response to the government's formal written proposal of remedies," which is due next month, according to the New York Times. Kessler said she will consider the tobacco lawyer's request.

McCallum, speaking to reporters on Thursday, said the new program would require the companies to spend $10 billion over five years and then $10 million for any additional year a court-appointed monitor determines the companies are breaking the law. McCallum said DOJ would "look to the judge to determine the number of individuals who can go forward" and added that current smokers would be allowed to participate (New York Times, 6/10).

"Those 45 million smokers can apply to the program and participate up to the number of individuals that are adversely affected" by future tobacco company fraud, McCallum said (Bloomberg/Winston-Salem Journal, 6/10). Eubanks said future industry misconduct was "not just likely but practically certain."

McCallum did not confirm or deny that he ordered DOJ attorneys to cut the smoking-cessation proposal. He said he could not discuss "internal deliberations relating to trial strategy." McCallum -- who is a former partner of an Atlanta law firm that has done work for R.J. Reynolds, one of the defendants in the case -- said he had "never represented any tobacco company in my career."

McCallum said DOJ's ethics office determined "there was no conflict of interest" and that he could take part in the case. He added that it was not unusual in major DOJ cases for "the career people and the political people ... to work together to devise the most appropriate strategy" (Los Angeles Times, 6/10). McCallum said DOJ was not disputing the figures originally offered in Fiore's testimony, adding, "We do think Dr. Fiore's estimates are accurate. We disagree with the Court of Appeals" (Washington Post, 6/10).

A Los Angeles Times source close to the trial team said that among DOJ lawyers, there had long been a "sense that the administration was never going to let the industry take the kind of hit that might result from an unfettered ability to prosecute the case." The source said, "I think it's really clear from the circumstances here that what happened here in the last few days is not based on the legal merits," adding, "I'm quite confident you will not see a verdict in this case." The source predicted that the reduction will allow negotiators "to reach a number that is not too politically offensive." DOJ officials declined to comment on whether they would seek a settlement (Los Angeles Times, 6/10).

The Post reports that "[s]everal legal experts said the government's new theory is too generous to the industry because it concedes legal points that might be successfully argued." William Corr, executive director of the Campaign for Tobacco-Free Kids, said, "It appears senior Justice officials decided on an amount of money and are now trying to justify that amount by describing a cessation program that doesn't make sense and won't work" (Washington Post, 6/10).

Ted Wells, an attorney for Philip Morris, said, "This is like a comedy skit on 'Saturday Night Live.' It's outrageous. It's ridiculous. This was a $280 billion case that became a $130 billion case that became a $10 billion case that will eventually become a zero billion dollar case." Lawyers for the companies also disputed McCallum's contention that the smoking-cessation program could include current smokers (New York Times, 6/10). David Bernick, an attorney for Brown & Williamson, said, "The plaintiff's case is disappearing, and this is a desperate effort to stop the fall" (Roxe, AP/Philadelphia Inquirer, 6/10).

• Christian Science Monitor: "Either the government should explain this suspicious disparity (was there political pressure?) or the court should stick with the higher figure," a Christian Science Monitor editorial states (Christian Science Monitor, 6/10).
  


• New York Times: This "last minute cave-in" was "an egregious example of favoritism toward a big, politically connected industry by an administration that is making such favors a hallmark of its governing style," a Times editorial states (New York Times, 6/10).
  


• Washington Post: If DOJ was "behaving reasonably when it introduced evidence that called for the larger figure," then it should not refuse to "seek the vast bulk of what its evidence suggests the American people are lawfully entitled to," a Post editorial states (Washington Post, 6/10).

NPR's "Morning Edition" on Friday reported on closing arguments in the case. The segment includes comments from Mary Aronson, a tobacco litigation and policy analyst; Corr; and Bill Ohlemeyer, vice president and associate general counsel at Altria (Hochberg, "Morning Edition," NPR, 6/10). The complete segment is available online in RealPlayer.