Limitations Of The Evidence

As noted above, the documents provide our first look—through a keyhole—at the inner workings of the tobacco industry during the crucial period in which the scientific case that smoking was addicting smokers and killing them solidified. Our view, however, is a limited one. One of its limitations has to do with the possibility of selection bias; that is, the documents may have been picked by a whistle-blower with an eye toward smoking guns. Another limitation, which shows up particularly in the legal and public relations aspects, is that we cannot always determine from the discussion in the documents whether particular ideas were actually carried out. In some cases the public record clearly shows that the contemplated actions were taken. In others—particularly when the industry's more sub rosa activities are being discussed—it is not obvious where the line between contemplated and actual action lies. As part of our analysis, we have tried to indicate which of these situations existed.

In particular, the attorneys often discuss proposed courses of action, but the documents do not always clearly indicate which course of action the company ultimately chose. Lawyers by nature are asked to evaluate the legal risks of proposed courses of action, but their advice is not always followed. Nonetheless, we were struck by the active role the lawyers played, not just as advisers but also as managers; they often decided which research would be done or not done, who would be funded, and what public relations and political actions would be pursued. Generally speaking, the documents authored by attorneys did not outline possible courses of action or recommend which course to follow; instead, they strongly advocated that certain policies or actions be taken, some of which appear to raise serious ethical questions.

Another possible limitation is that the documents came from a single tobacco company and primarily reflect only the plans and actions of that company. Nevertheless, the documents include correspondence between B&W and other tobacco companies and trade organizations, as well as discussions of the actions of other companies and the industry in general. Many of the documents relate to industry-wide cooperation and reflect the views of participants, including lawyers, representing other companies and trade groups. In addition, other evidence—such as that presented in the Haines case, discussed in chapter 7—paints a similar picture of the actions of other tobacco companies. In any event, in our analysis of the documents, we have attempted to keep clear the distinction between the actions of B&W alone and the actions of the tobacco industry generally.

Despite these limitations, we are confident about the conclusions we draw from the documents. When lawyers are shown steering away from projects on the addictiveness or health effects of tobacco, we believe we can reasonably conclude that B&W and BAT knew that tobacco is addictive and causes disease; if it had been genuinely unconvinced of the dangers of smoking, then it would have had no concern that new research would provide ammunition for the enemy. The analogy would be to a criminal defense lawyer who doesn't ask the defendant whether he actually committed the crime because he does not want to be hampered in making his defense by embarrassing knowledge of the defendant's guilt. It will be easier to claim that the defendant is innocent, or even to put the defendant on the stand to testify to his innocence, if the lawyer does not ask the hard questions. The lawyers and scientists who wrote many of the documents were unusually candid in their remarks—possi-

bly because they believed that the documents would be protected by the work product rule or attorney-client privilege, and therefore would never become public.