STATE OF MINNESOTA AND BLUE CROSS AND BLUE SHIELD OF MINNESOTA,
PLAINTIFFS,
V.
PHILIP MORRIS, INC., ET. AL.,
DEFENDANTS.
TOPIC: TRIAL TRANSCRIPT
TRANSCRIPT OF PROCEEDINGS
DOCKET-NUMBER: C1-94-8565
VENUE: Minnesota District Court, Second Judicial District, Ramsey County.
YEAR: April 15, 1998
A.M. Session
JUDGE: Hon. Judge Kenneth J. Fitzpatrick, Chief Judge
THE CLERK: Please rise. Ramsey County District Court is again in session,
the Honorable Kenneth Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: You may be seated.
THE COURT: Good morning.
(Collective "Good morning.")
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor.
Good morning, ladies and gentlemen.
(Collective "Good morning.")
B. SCOTT APPLETON called as a witness, being previously sworn, was examined and testified as follows:
BY MR. CIRESI:
Q. Good morning, doctor. How are you today?
A. Good morning.
Q. Sir, can you pull out volume one, and can you direct your attention to the exhibit that we were discussing yesterday when we recessed, Exhibit 11180.
A. 11180. Oh, I see.
Q. Do you have it, sir?
A. Yes.
Q. Okay. You'll recall that was the letter dated January 10th, 1985 from the deputy chairman of BATCo to Mr. Hardwick.
A. Yes.
Q. Now Mr. Pritchard, the deputy chairman of BATCo in 1985, subsequently became the CEO of Brown & Williamson; correct?
A. Yes.
Q. Do you know when he became the CEO of Brown & Williamson?
A. No, I don't know the date.
Q. Was it shortly after January of 1985?
A. I -- I don't know.
Q. Can you direct your attention, please, sir, to Exhibit 13851. It's toward the end of the same volume.
A. I got it.
Q. Now this is a memorandum for file dated January 17th, 1985, about seven days after the Pritchard to Hardwick letter, and it's from J. Kendrick Wells. Do you see that?
A. Yes.
Q. And the title of it is "Document Retention." It's difficult to make out, sir, but --
A. Yes.
Q. -- this is the best copy that we've been able to receive.
A. I see that.
Q. Can you see that?
A. Yes, I see that.
Q. Okay. And let me just read the first two paragraphs here. "On Tuesday, January 15th, I talked with Earl Kohnhorst about engineering and scientific reports held by the RD -- R&D Department." Do you see that?
A. Yes.
Q. The second paragraph then states, "I gave Earl copies of pages which contained various document numbers and files, and document numbers and abstracts. I explained I had marked certain of the document references with an X. The X designates documents which I suggested were deadwood in the behavioral and biological sciences area. I said that the 'B' series are 'Janus' series studies and should also be considered as deadwood." Do you see that?
*2 A. Yes, I do.
Q. Now the JANUS "B" series, they were not published; were they?
A. "Published," you mean in the public literature?
Q. Yes.
A. No.
Q. So they were what I believe you referred to as proprietary information; correct?
A. I don't recall me saying that. I -- I think we already had this discussion earlier.
Q. Now by "deadwood," do you know what was meant by Mr. Wells?
A. No.
Q. Okay. Can you go on to the next page, and I'd like to direct your attention to the second paragraph.
A. Yes, I see it.
Q. "I suggested that Earl have the documents indicated on my list pulled, put into boxes and stored in the large basement storage area."
Now "pulled" would be pulled from the library; correct?
A. I assume that's what -- that's what that means.
Q. "I said that we would consider shipping the documents to BAT when we had completed segregating them. I suggested that Earl tell his people" --
Now Earl was in the R&D department; correct?
A. I know he was at some point, but I don't know the exact dates of his tenure there.
Q. Well this implies that Earl was in charge of something, because he's talking about Earl telling his people; correct?
A. He --
Yeah, he may have been. He may have been head of R&D at that time.
Q. Fair assumption; is it not, sir?
A. Yes.
Q. "I suggested that Earl tell his people that this was part of an effort to remove deadwood from the files and that he -- and that neither he nor anyone else in the department should make any notes, memos or lists." Do you see that?
A. Yes.
Q. Now if one wanted to take documents from a file and not leave a paper trail, one way to accomplish that would be by not making any notes, memos or lists; correct?
A. That would --
That could be a way to do it, yes.
Q. It would make it much more difficult for one who was attempting to reconstruct and see whether all documents have been gathered to ascertain whether all documents had in fact been retained; isn't that correct?
A. I -- I think that's a safe assumption.
Q. Now at this point in time, Mr. Wells was a lawyer in the department at Brown & Williamson; correct?
A. I believe so, yes.
Q. And again, as I said earlier, this was about seven days after Mr. Pritchard told Mr. Hardwick to ship documents to Brown & Williamson via a law office in Louisville; correct?
A. I'm sorry, Mr. Hardwick asked Mr. Pritchard to do what?
Q. Mr. Pritchard told Mr. Hardwick to ship documents to Brown & Williamson via a law firm in Louisville.
A. I don't recall that particular -- that particular sequence of events. That may have been it, but my recollection is - -
Q. Maybe we could look at the document again.
A. Okay. What number was that?
Q. It's on the screen right now.
A. Okay.
Q. Can you read that? Otherwise I'll --
A. Well if you can magnify it I can read it, but this is real fuzzy compared to the last --
*3 Q. All right. Why don't you go to Exhibit 11180.
A. Well I can read it. It's looks magnified enough right now.
Q. Okay. "Dear Mike."
Mike is Mr. Hardwick; correct?
A. Yes.
Q. "Would you please arrange for all reports and materials for worldwide distribution emanating from GR&DC to be -- to be sent to Robert Maddox, Jr., Wyatt, Tarrant & Combs, 26th Floor - Citizens Plaza, Louisville, Kentucky, U.S.A." Now that's a law firm in Louisville; correct?
A. Yes.
Q. That's where Brown & Williamson is located; correct?
A. Yes.
Q. Correct?
A. Yes.
Q. "This firm" -- that means the law firm -- "should not be listed as a distributee in the documents nor should B&W." Correct?
A. Yes.
Q. "Any mail sent to Maddox should be accompanied by a simple cover letter indicating that BAT Millbank has asked that he should receive it." Correct?
A. Yes.
Q. All right. So seven days before Wells is talking about deadwood and collecting things out of his files, Mr. Pritchard, who was to become the CEO of Brown & Williamson, is saying that for documents regarding research that's going to be sent to Brown & Williamson, that they should be sent to the law firm without any tape of paper trail; isn't that right?
A. That's what the document suggests, yes.
Q. And Mr. Pritchard also in this letter, in his second prong, says that items that are normally forwarded to this office, meaning his office, for clearance first should continue to be sent here; correct? Last sentence, sir.
A. Yes.
Q. So that at that time, as indicated by this letter, Mr. Pritchard was receiving information from the research department and clearing it before forwarding on to B&W; correct?
A. Well it says he was receiving items. I'm not sure if it says what items he was receiving.
Q. Well we know he was receiving items for clearance; right?
A. Right. But I don't know if it says that they're research reports.
Q. Well it would be fair to state it wasn't for how many staplers or papers should be purchased by B&W, mundane things.
A. I assume the CEO gets lots of things for his clearance over his desk.
Q. Well he certainly doesn't clear paperclips and things like that; does he?
A. I doubt it.
Q. Yeah. It would be more likely that he would be clearing sensitive information; isn't that right?
A. I would think it would be all kinds of business information, things that require his signature, capital expenditures, things of that nature, may be reports. But I don't see where it says that in this document.
Q. Well certainly the law firm in Louisville, Kentucky, doesn't approve budgets for B&W, or capital expenditures; correct?
A. I don't believe so.
Q. You've never heard of anything like that; have you, sir?
A. No. I'm -- maybe I'm misreading this. It appears to me that Mr. Pritchard is saying that he received some items for clearance, but I don't know what those items are. I don't know if this memo indicates what those items are.
*4 Q. But in the context of the memo, doctor, is it not fair to assume that it's information from the research and development group?
A. It may be. I just don't know if I can make that assumption. I've never seen this document.
Q. So from the context of the document, you can't make that assumption; is that what you're saying?
A. Not necessarily.
Q. Now in 1985, shortly after the deadwood memo of Mr. Wells, B.A.T ceased doing in-house biological research; isn't that correct?
A. No, that's not correct.
Q. Can you direct your attention to Exhibit 11946.
A. In volume number two?
Q. It's still in volume number one.
A. I'm sorry.
Okay.
Q. Now this is a "TOBACCO RESEARCH IN BAT INDUSTRIES;" correct?
A. Yes, that's what the document says.
Q. And it's dated April 3rd, 1985?
A. Yes.
Q. Correct?
Okay. That's shortly after the deadwood memo that we saw which was January 17th, 1985?
A. Yes.
Q. And the title again is "TOBACCO RESEARCH IN BAT INDUSTRIES." Correct?
A. Yes.
Q. And in the first paragraph we see that "BATCo has been charged by BAT Industries to define and to progress towards R&D objectives which will give BAT a competitive lead in the market place?" Do you see that?
A. Yes.
Q. And if you go down to paragraph numbered one, do you see that? First page, says number one.
A. Yes.
Q. Okay. Right above that, the paragraph states, "In order to relate the Group research and development programme more closely to the different needs of BAT Group's tobacco companies, it will be necessary:
"1. to redefine the basic strategy of R&D and the design of research programmes undertaken by the different CAC companies."
A. Yes.
Q. Now B&W would be one of the CAC -- CAC companies.
A. Yes, it would be, yes.
Q. BATCo would be one of the CAC companies; correct?
A. That's correct.
Q. Okay. "Research will have the broad objective of innovation of understanding the smoker's discernment of quality, and of recognition of the smoker's concern." Do you see that?
A. Yes.
Q. Now if you go to page 607 of that document, please -- and that's the last three Bates numbers, 607 -- and you see there under "RESEARCH, Biological Research," that "All in-house animal work will cease and future studies involving animals will be done externally under contract?"
Do you have it sir? I'm sorry. Page 607 at the top.
A. Right. The first -- first paragraph?
Q. Yes. And is it reported there that "All in-house work will cease and future studies involving animals will be done externally under contract?"
A. Yes.
Q. See that?
A. And it also goes on to say --
Q. Well --
A. Well first of all it acknowledges that future research in animal studies that will continue will be done in contract laboratories, but it also says that biological research will continue in the form of in vitro short- term tests such as the Ames test which will be continued to be conducted in- house.
*5 Q. Right. And let -- let me go on. That was going to be the next sentence. But it says, "All in-house animal work will cease and future studies involving animals will be done externally under contract." Correct?
A. Yes.
Q. Okay. "A Senior Research Scientist will be retained to co-ordinate external work and to provide expertise in toxicology. In vitro short term tests, such as the Ames test, will be retained" -- correct?
A. Yes.
Q. -- "since these are used for product screening and could form the basis of a biological league table." Do you see that?
A. Yes.
Q. Now what's a biological league table?
A. Well a league table is a -- it's a listing of --
In the sense that I typically think about it, it's a listing of deliveries of tars. Like the Federal Trade Commission in the United States requires that all U.S. cigarettes be tested for tar and nicotine deliveries and then publishes those, and that's referred as a league table; namely, a -- a listing of various attributes. And apparently there was some indication from regulatory authorities in Europe that in fact Ames activity may be included as a parameter or a measurement along with other things, like tar and nicotine, so I believe that that's what they're referring to.
Q. And so what they're saying here is that for biological purposes, Ames testing will be retained in-house; correct?
A. Well they --
They're saying it will be retained for screening purposes and the possibility that there may be a league table requirement to -- to conduct that work.
Q. And they were going to use the Ames test as a basis, that could form the basis of a biological league test; correct?
A. Well I'm not sure if that's -- they're saying that they're going to do that. I believe what they were thinking is -- is it is possible by indications from regulatory authorities that they may have that intention. I believe discussions were going on in Europe at the time, and the regulatory authorities were suggesting that may be something that they would want to do. In addition to tar and nicotine, they may want to include Ames activity. So it appears that -- that R&D recognized that and was preparing for that possibility.
Q. What was being proposed was a biological league table. What was being proposed in this memorandum is that the Ames test could be used as a basis for that biological league table. Isn't that what it says, sir?
A. They're saying that -- that the Ames test could --
Q. Form the basis.
A. -- form the basis of a biological league table.
Q. All right.
A. That's what it says.
Q. So that what was being considered was that if there is a biological league table, Ames testing could be used as a method --
A. That that was --
Q. -- to form the basis --
A. Right. That was a possibility.
Q. -- for providing information.
A. That was definitely a possibility that was discussed at the time.
*6 Q. Okay. Let me give you just a word of caution here because it's very difficult on the court reporter if you and I overspeak each other.
A. Okay.
Q. And I'll try to wait until you're done, if you do the same.
A. I appreciate that.
Q. Otherwise --
And Mr. Stirewalt will really appreciate it.
A. Okay.
Q. All right.
Now the Ames test was the test that you discussed in your direct testimony, which was a test that was designed and invented by Bruce Ames from the University of California at Berkeley; correct?
A. Yes.
Q. And that is used by scientists in the field; correct?
A. In what field?
Q. In the biological fields.
A. Yes. It is used by many people, scientists particularly in toxicology.
Q. And it's used today; correct?
A. Oh, yes, definitely.
Q. Used widespread today; correct?
A. Yes.
Q. Now with regard to smoke research, what's being proposed here is that "More resources" -- if you look to the next paragraph and the last line, "More resources will be provided for research into means of enhancing nicotine transfer to smoke and experimental combustion research, including cigarette paper effects." Correct?
A. That's what the document says, yes.
Q. Okay. So that at this point in time, what was being considered at BATCo in 1985 was to direct more resources into the means of enhancing nicotine transfer from tobacco to cigarette smoke.
A. Well this -- this falls into the area of -- of sensory research and consumer acceptance. A major issue with safe cigarette research was gaining consumer acceptance, and this work, I believe, was geared towards exploring ways that -- for gaining consumer acceptance of safe cigarettes or what might be regarded as safe cigarettes.
Q. What it says, sir, is enhancing nicotine transfer to smoke.
A. Yes.
Q. Is that what it says?
A. That was thought to be a possible strategy to do that.
Q. Now can you direct your attention to Exhibit 26208, which is in the second volume.
A. I'm sorry, what was the tab again?
Q. 26208.
A. Got it.
Q. All right. Now that's a memo from J. Kendrick Wells III; correct?
A. Yes.
Q. And it's to John David Myles; correct?
A. Yes.
Q. Dated August 1, 1985; correct?
A. Yes.
MR. CIRESI: Your Honor, we'd offer Exhibit 26208.
MR. BERNICK: Same objections as previously lodged in the record, Your Honor.
THE COURT: Court will receive 26208.
BY MR. CIRESI:
Q. Now this also bears the legend on the left-hand side privileged and confidential, produced as required by the court's March 7th, 1968 order.
A. Yes.
Q. 1998 order, excuse me.
A. Yes.
Q. Correct?
A. Right, I see that.
Q. Did you ascertain last evening whether or not there were a number of documents produced last week?
A. No.
Q. You didn't.
A. No.
Q. Have you reviewed this document?
A. I have seen this.
*7 Q. Okay. When did you review it?
A. Within the last couple of days. I'm not sure if it was yesterday or the day before.
Q. Okay. That was the first time you saw it, sir?
A. Yes. I believe this is among the ones that you designated for my cross- examination. That's when I had the first opportunity to see it.
Q. Now this is roughly six, seven months after Mr. Wells' memo back in January of this year -- of that year, 1985; correct?
A. Yes.
Q. And it's a few months after his deadwood file; correct?
A. Yes.
Q. And here he's saying he has "placed in he E-tonda's cabinet" --
Do you know what that refers to?
A. No. Sounds like a person's name, but I don't know who it is.
Q. -- "a group of R&D reports produced by various companies in the BAT organization. Please send these to Anne Johnson with a cover letter which should say simply that I asked you to send the enclosed documents to her for review. The cover letter should not identify the documents and I would appreciate it if you would say also in the cover letter that I am out of the city and will return August 19." Do you see that?
A. Yes.
Q. So approximately seven months after the deadwood file, and also seven months after Mr. Pritchard's file -- or memo to Mr. Hardwick, Mr. Wells is shipping documents to Anne Johnson without a cover letter identifying the documents; correct?
A. Well that's what the letter indicates. I don't know if those documents referred to in this letter have any connection to the documents that he referred to in his previous memo of seven months prior.
Q. Well you know that they're R&D reports; don't you, sir?
A. Well it says R&D reports. I don't know which R&D reports.
Q. It says B.A.T R&D reports; doesn't it?
A. Yes.
Q. Now at this point in time had Mr. Pritchard taken over at B&W?
A. I -- I don't know.
Q. Do you know how many documents were sent to Anne Johnson?
A. No. The -- this memo doesn't indicate. I'm -- I don't even know who Anne Johnson is. But this memo doesn't indicate how many documents or what the reason is or -- or any particular connection to the memo that was written seven months prior.
Q. If I told you Anne Johnson was a BATCo employee, would that help you at all?
A. Well it would -- it would make me think that it wasn't the deadwood documents.
Q. It would.
A. Yes.
Q. Okay. Now when you don't identify documents, once again you don't leave a paper trial as to what those documents are; do you?
A. No.
Q. Can you direct your attention now, sir, to Exhibit 26210, which is the next document.
A. Oh, okay.
Q. And this is a memo to Mr. Pritchard; correct?
A. Yes.
Q. From Mr. Wells; correct?
A. Yes.
Q. Dated November 17th, 1989; correct?
A. Yes.
Q. And the title is "Arguments About Documents." Correct?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 26210.
*8 MR. BERNICK: Your Honor, I have an objection to this. I'd like to
be heard at side-bar briefly. It pertains to other countries.
MR. CIRESI: Your Honor, we'd offer Exhibit 26210.
THE COURT: Court will receive 26210.
BY MR. CIRESI:
Q. Now Dr. Appleton, this is the memorandum from Mr. Pritchard; correct?
A. Yes.
Q. Do you know if at this time he was the B&W CEO?
A. He may have been. I just -- I simply don't know what his -- what his tenure was.
Q. Okay. This again is from Mr. Wells; correct?
A. Yes.
Q. And on the left-hand side is the legend privileged and confidential, produced as required by the court's March 7th, --
A. Yes.
Q. -- 1998 order.
A. I see that.
Q. Now let's go through this, sir. In the first paragraph it states, "Pursuant to our conversation, this memorandum presents a synopsis of arguments that is crucial to avoid the production of scientific witnesses and documents at this time even if production were to occur in the indefinite future." Correct?
A. Yes.
Q. Now what Mr. Wells is saying here is that B&W is going to avoid producing documents and witnesses; correct?
A. It says he's presenting a synopsis of arguments concerning that. I don't know if he says they're actually going to do that or not.
Q. Well he says we're going to avoid the production; correct?
A. Well it says he's --
He's presenting arguments about the pros and cons of doing that. It seems he's giving legal advice about how to defend potentially pending litigation. It seems to me --
It's a synopsis of arguments, is what it says.
Q. Legal advice to avoid production of documents and witnesses; is that what you're saying?
MR. BERNICK: Your Honor, that's the third time the question has now been posed. The witness has answered it.
THE COURT: I think he's answered it.
THE WITNESS: I'm sorry?
MR. CIRESI: We'll go on.
THE WITNESS: All right.
Q. "Plaintiffs" --
THE WITNESS: I -- I'm sorry, Your Honor, I didn't hear what you said.
THE COURT: Well I guess you needn't answer it, unless you insist on answering it.
THE WITNESS: Please go on.
Q. "Plaintiffs can argue certain statements in the documents demonstrate that scientists of the company accepted causation as addiction." See that?
A. Yes.
Q. And you remember the document that we saw yesterday that was talking about the difficulties of getting documents out where internal people and consultants admitted and accepted causation?
A. Yes.
Q. And what Mr. Wells is addressing here is the very precise issue that we saw in that other document; correct?
A. Yes.
Q. "In addition, large numbers of documents with difficult statements with wear away the credibility of the witness's explanation." Correct?
A. That's what it says, yes.
Q. So what he's suggesting here is that all of these documents, internal documents get out, and if some witness had tried to explain away a position, that those documents would undermine and wear away any credibility that witness may have; correct?
*9 MR. BERNICK: Object to the characterization. The document says what it says. These are Mr. Ciresi's words now.
THE COURT: You may answer the question.
A. It seems to me he's -- he's doing what lawyers do, he's presenting a legal analysis of apparently pending litigation and the potential impact of various documents and various statements in documents on that, and apparently weighing pluses and minuses and giving opinions about what may strengthen or weaken the case in his -- in his view. It seems to me that's what -- that's what lawyers spend a lot of time doing.
Q. Well you don't mind if I take issue with what you think lawyers do; do you, sir?
MR. BERNICK: Your Honor, object to the commentary by counsel and move that it be stricken.
THE COURT: Yes, that's commentary, counsel. That will be stricken.
BY MR. CIRESI:
Q. The next number, number two, "The witness probably -- probably will be unprepared to explain the documents adequately to preserve credibility for the management's statements on smoking and health." Do you see that?
A. Yes.
Q. Now management's statements at Brown & Williamson in 1989 and right up to today on smoking and health is that smoking does not cause disease; correct?
A. No, that's not correct.
Q. Has B&W ever stated publicly in writing that smoking causes disease?
A. We've -- we've talked about what the evidence shows, that you've got epidemiology that's -- that indicates it's a risk factor, that it may very well cause disease, then we've talked about the experimental evidence and what it shows and what it doesn't show when you look at this from a technical point of view and a scientific point of view, and we -- we've talked about that and we've presented that sort of information publicly.
Q. Can you answer my question, doctor? Has Brown & Williamson ever publicly stated smoking causes disease?
A. I think I answered your question.
Q. Has it so stated?
A. I --
The answer I gave you is the answer I gave you. We have talked about the evidence concerning that, and there's various types of evidence. We've talked about what we think the various types of evidence show.
Q. That's not what I asked you, sir. Let me -- let me make it a little more simple. Has Brown & Williamson taken out an ad in the paper, like they did with the Frank Statement in 449 papers across the country, and said we admit smoking causes lung cancer? Have they done that?
A. Well I think before we would do that, we would weigh what would be the value to the consumer to do that, and if the intent would be to convey potentially the health risks of smoking, I think that's best left to the public health authorities, and they do that. And --
Q. Sir, --
A. -- they've done that. I don't see what value there would be.
Q. -- can you answer my question? Can you answer my question?
A. Well I'm trying to, sir.
Q. No, you haven't answered it, sir.
*10 Has Brown & Williamson ever taken out an ad and said that? "Yes" or "no."
A. Again, before we would do that, we would --
We wouldn't do it unless we thought there was a value to the consumer. Insofar as warning them of the health risks of smoking, we think that the consumer should be warned, and we believe that they have been warned. And the most appropriate way to do that is through the public health authorities. I don't know why we would do that. I don't know what value to the consumer that would have.
Q. Is your answer no?
A. We have not taken out an ad that has the words you mentioned.
Q. Because you want to shift responsibility to some government agency to warn rather than the company itself warning its consumers; correct?
MR. BERNICK: Your Honor, Your Honor, both in the tone of counsel's voice and in substance that is argumentative and improper.
THE COURT: No, you may answer that.
A. We think it's extremely critical that consumers are aware of the health risks of smoking. The issue is who should provide that information. I think it's most appropriate for government health officials to do that. That's what their role is. In fact, one may even argue if we did it it may pose a conflict of interest. The public health authorities have taken on that responsibility. They've done a good job with it, and we think that consumers have been adequately warned. We're satisfied the consumers are aware of the -- of the health risks of smoking.
Q. Point to me one statement of any public health authority that says we take on the tobacco industry's responsibility to warn consumers, and they do not have to warn consumers.
MR. BERNICK: Your Honor, I --
Q. Point to one such statement.
MR. BERNICK: I object. This is a matter of congressional legislation. There's a Supreme Court opinion.
THE COURT: You may answer the question.
A. I'm sorry, I'm not even sure I followed the question. Can you please repeat it?
Q. Sure. Point me to one statement of any public health authority that says we take on the tobacco industry's responsibility to warn consumers and they do not have to warn consumers. Point to one such statement.
MR. BERNICK: Same objection, Your Honor.
THE COURT: I've ruled on that, counsel.
MR. BERNICK: Okay.
A. Well I don't know if there is such a statement, but I do know that Congress has apparently mandated that warnings go on the pack, and my understanding of how the legislation is constructed, although I'm not an expert in this area, I'm a scientist --
Q. Are you speculating?
A. -- is that --
MR. BERNICK: Excuse me. The witness was interrupted.
A. I'm giving my understanding of -- of what I -- what I believe the laws are and what the regulations are. I'm -- I'm trying to respond to your questions, sir, the best I can.
Q. You understand --
A. I may or may not be completely accurate, but my belief is that Congress specifically prohibits tobacco companies from modifying those warnings. I may be wrong, but that's my understanding, that they have indicated that they're the ones that dictate what the warning -- warning will be.
*11 Q. Who told you that?
A. I don't even --
I don't know exactly where I -- where I gained that understanding. And I may be wrong, but that's my understanding.
Q. You have no idea where you learned that --
A. No.
Q. -- alleged statement?
A. I -- I don't know if I read it. I don't know. I don't remember where -- where I got that information.
Q. You do --
You do understand that at the conclusion of this case the court will instruct the jury on what the law is. Do you know that?
A. I assume that's the case, yes.
Q. And the court will instruct with respect to whether or not the companies, as contrasted with the government, has a duty to warn. You understand that; don't you?
A. I assume that that will be part of the process.
Q. Now back to Exhibit 26210. Mr. Wells goes on to state, "The witness perhaps could be prepared to survive superficial questioning on the documents produced now. However, he is likely to be confronted with additional waves of documents." Do you see that?
A. Yes.
Q. "He also would be unprepared to deal with a sharp cross- examination on the smoking and health questions certain to be suggested by government experts." Do you see that?
A. Yes.
Q. Now the more information that is in the hands of someone seeking the truth through cross-examination, the better that person will be able to examine a witness on a subject matter; correct, sir?
A. I think it depends on what information they have and what the circumstances of the cross-examination are, and of -- you know, just the whole circumstances of it. Depends on what information. I can't necessarily say yes, they will have -- be in a better position or not a better position.
Q. Well you would certainly agree as a scientist that the more information you have on a subject matter, the better able and better equipped you are to discuss the subject matter.
A. In a scientific arena, yes. But when you say "cross- examination," now we're moving to a litigation arena which has very specific rules and technicalities about what can be discussed and what can't be discussed and what evidence can be entered in, what evidence can't be entered in. It's a completely different arena that I'm not entirely familiar with. Scientists don't do that. They -- they talk about everything that's out there and all the information that's available. And so in a scientific arena, certainly, the more information you have, the better equipped you are to deal with the issues. I don't know if that automatically translates in a legal environment.
Q. Okay. Fair enough.
In a scientific environment, then, I think you said the more information that's out there, the better equipped scientists are to discuss a specific area; isn't that right?
A. Yes.
Q. Because all that information, be it from company files, from independent investigators, wherever, leads to a robust record for scientists to evaluate and discuss; correct?
*12 A. Potentially, yes.
Q. That's the reason that you want to get all of the information out for scientists to be able to discuss it; correct, sir?
A. As I indicated, the more information that's out there, particularly unique and novel information, the better equipped people are to address the issues.
Q. And if one party to that scientific inquiry is playing hide- the-ball and they're not putting out all the information so people can evaluate it, that can impair the scientific discussion; can't it?
A. Well I think it depends on if, number one, if it's in fact happening, and number two, what information is being hid, if any information is being hid at all.
Q. But you certainly wouldn't want to let the hider determine whether or not the information will be important to people who are not hiding; would you, as a scientist?
MR. BERNICK: Objection to the form of the question, and it's argumentative.
THE COURT: You may answer that.
A. I'm sorry, could you repeat the question? I'm not even sure --
Q. Sure.
A. -- I'm completely following you.
Q. You certainly wouldn't want the hider to determine whether or not the information will be important to those scientists who want to get at all the information; would you?
A. I'm not even sure what --
Can you please repeat your question?
Q. Sure. Let me make it simple.
A. It's hard --
Or maybe even rephrase it. I'm not sure I completely even follow it.
Q. All right. You would expect, sir, that as a scientist, if someone else was hiding information from you, you wouldn't want that person to determine what might be important or not important; would you?
A. No, I would not.
Q. No.
You would want independent, objective scientists to be able to look at all the information at given points in time to determine what people knew, when they knew it, and what the effect of that was from a scientific standpoint; correct?
A. Well when you say "all the information," I mean to a degree. When -- when I look at the published literature, I know that I'm looking at a finished published manuscript that's been peer reviewed. Now I know that there's a lot of underlying information leading up to that that I don't see, and that there's just no practical way to do that. So what people do and what science is about is they -- they prepare reports based on the information, they get it peer reviewed. If it survives the peer- review process, I think the assumption is that it's reasonable and it hasn't been over-interpreted or under- interpreted.
So I do rely on finished published papers, and I don't have to necessarily receive all the underlying raw data and everything that led up to that finished paper. So I'll agree with you to a point --
Q. All right.
A. -- but not say I have to have everything. It's just impossible. That's simply not possible.
Q. Well scientists don't rely on just peer-reviewed literature.
*13 A. No, not solely on peer-reviewed literature.
Q. Now --
And if the articles that you're relying on were slanted or distorted with regard to sensitive information, you'd want to know if that had taken place as a scientist so that you could take a look at the underlying information to ascertain whether there was any importance or significance to that slanting or distorting; wouldn't you?
A. I would assume, if I'm looking at a peer-reviewed published paper, that it has survived the peer-review process, which means it hasn't been over -- grossly over- or under- interpreted and that it couldn't be slanted to any great extent, because the data speaks for itself, the data is the data.
Now if someone is over- or under- interpreting, then hopefully the peer-review process would pick that up. I rely mostly on peer-reviewed published literature when I'm looking at external research.
Q. Even in peer-reviewed literature, sir, when information is drawn, if the underlying information was slanted, someone reading that peer-reviewed article wouldn't have the foggiest notion it was slanted; would they?
MR. BERNICK: Object to the form of the question. It's really very ambiguous what's being referred to.
THE COURT: Do you understand the question?
THE WITNESS: Well sort of.
Q. I mean this whole line, I'm having trouble following you, but all I can say is this: I think anybody can slant anything at any time. So just because something is in a peer-reviewed journal is not a guarantee that it hasn't been slanted. But I think it's the best assurance that's available to us. It's the best we have.
Q. And certainly the tobacco industry, B&W and R&J, with your personal experience, has not turned over all of its underlying data to federal government; has it?
A. Well I don't know what all -- all these activities are, and I --
Frankly, these documents, I'm seeing them for the first time. I can tell you what I have seen. I have seen that technical reports that indicate a massive research effort to do safe cigarette research.
Q. Sir --
A. So apparently that wasn't hidden to me. I don't know if we published that, I don't believe it was published, but I also don't believe that any of the findings represent anything particularly novel or new that wasn't already known in the scientific community.
Q. But you work for the company and you've drawn that conclusion; right?
A. Yes.
Q. Okay. Now my question was a little different. Brown & Williamson and RJR, to your knowledge, hasn't turned over all of their information regarding smoking and health to any government agency; has it?
A. Well they -- they've published actually a great deal of information. They've published a lot of reports and a lot of studies. I don't believe they've published everything. I don't think any company publishes all of its internal research.
Q. Sir --
A. But we have certainly published a lot.
*14 Q. Do you know any other industry where it's reported that its product kills over 400,000 people a year?
A. Not right offhand.
Q. You can't think of a one; can you?
A. No.
Q. Ever in the history of the world can you think of such a product; can you?
A. Well not right offhand, no.
Q. There's not a product that comes anywhere near it in terms of what's been reported in terms of death and disease that it causes; isn't that right?
A. As far as awareness of the health risks of smoking, I don't know of any product that has the awareness of the potential health risk that tobacco carries, no.
Q. Sir, and the greater the risk, as you call it, the greater the danger, the more essential it is that all information get out. Wouldn't you agree?
A. I think information that's unique, that would make a significant contribution to the body of knowledge, if that wasn't already known, is important. The research that I've looked at concerning safe cigarette research, as I indicated, were all based on tests and screens. The reason why we employed those is because somebody else had already done that test, had put cigarettes through those tests, had made reports in the scientific literature and said this is what cigarette smoke does. And we said okay, this is what's important, we're going to employ these tests to see if we can make our products safer. So the research that we're talking about, that I'm talking about, isn't anything that's new or that wasn't known in the scientific community. It's out there. That's why we picked it up and used those tests.
Q. That's not what the Journal for the American Medical Association said; is it?
A. Well the Journal of the American Medical Association says a lot of things. It's a huge journal and publishes every month. What are you referring to?
Q. I'm talking about the articles that were in the journal that said that your company concealed information. You're aware of that; aren't you?
A. I've read those articles. It depends on what information you're referring to. If you have a specific study in mind, I'll be happy to give a comment as to whether or not I think, if we published that, it would have made a difference to the scientific community.
Q. No. I'm asking you whether or not doctors in the Journal for the American Medical Association, who were not employed by the industry, said that your company, Brown & Williamson, spread confusion and obfuscated the scientific debate. Was that said, sir?
A. Well if you're referring to the papers published by Stanton Glantz, I've read those. I am aware of what his statements are. I think the -- the -- the best way I could deal with it is if you give me a specific example of -- of a type of research or a study that was allegedly suppressed by us, I can give you an opinion as to whether or not that would have made a difference in the overall view of the scientific community concerning smoking and health. I'll be happy to comment on that if you give me a specific example.
*15 Q. That's not what I'm asking you. I'm asking you whether scientists out there, not employed by the tobacco industry, have said that your company spread confusion, obfuscated, and duped the public. Did they say that?
A. I'm -- not those exact words, but that is -- that is among the messages that were conveyed by Stanton Glantz in the papers that I believe you're referring to.
Q. How about Dr. Koop? How about Dr. Kessler? They said you hid evidence; didn't they?
A. Well I'm not --
If you give me a specific statement, I -- I'll either confirm it or --
I'm aware they said a lot of things.
Q. Can you direct your attention to Exhibit 24346.
A. Is it in the same volume here?
Q. Volume two.
A. Okay.
Q. This is an article "Reinventing American Tobacco Policy, Sounding the Medical Community's Voice;" correct?
A. Yes.
Q. Written by Dr. C. Everett Koop, former Surgeon General of the United States of America; correct?
A. Yes.
Q. Written by Dr. David C. Kessler, former head of the Food and Drug Administration; correct?
A. Yes.
Q. He is the one who in 1994, after documents started coming out in Congress, undertook to regulate cigarettes as a drug; correct?
A. Yes.
Q. And from Dr. George D. Lundberg; correct?
A. Yes.
Q. And if you go to the first page and you go over to the right-hand column, first full paragraph, they reported in JAMA in 1998, "For years, the tobacco industry has marketed products that it knew caused serious disease and death. Yet, it intentionally hid this truth from the public, carried out a deceitful campaign designed to undermine the public's appreciation of these risks, and marketed its addictive products to children. The industry knew -- long ago knew that nicotine was addictive but kept its findings secret and consistently denied the fact, even as overwhelming evidence to the contrary eventually emerged.
"By these actions, the tobacco makers have shown themselves to be a rogue industry, unwilling to abide by ordinary ethical business rules and social standards." That's what they reported; correct?
A. That's what the document says, that's correct.
Q. And if you go down to the next paragraph, "By contrast, the tobacco industry has intentionally designed and marketed lethal products and deliberately hidden their well- known risks;" correct?
A. That's what the document says.
Q. And what they're doing is they're contrasting the tobacco industry with the automobile industry there, for if you go to the preceding paragraph, you'll see where they say, "For example, design defects in a motor vehicle are unintentional; when they are discovered, steps are taken to correct them. Nevertheless, such manufacturers are held liable for these mistakes." Do you see that?
A. Yes.
Q. And if you turn to Exhibit -- well if you -- if you go on to the next page first, sir --
Actually, let's start at the bottom of the same page.
*16 A. Okay. Yeah. I'm following on the screen here instead of - -
Q. Okay. Do you have it?
A. Well it's on the screen.
Q. Okay.
A. I see the screen.
Q. "Incredibly, even though some in the tobacco industry have now acknowledged some smoking-related health consequences and addictive properties, they have offered no apology and have the audacity to deny wrongdoing. Even worse, manufacturers have launched the greatest lobbying campaign ever known, tens of millions of dollars just in 1997, in an attempt to receive from Congress pardons for all its past and future liability. Some of its audacious requests would require making exceptions to the fundamental rights of due process for individuals, while others would override state and community rights." Correct?
A. That's what the document says, yes.
Q. Then it goes on to talk about the Mississippi and the Florida case, and it talks about the Minnesota case; correct?
A. Yes.
Q. And it said, "If the whole truth were known (and much more may come out during the Minnesota court case), we believe members of Congress would have to distance themselves completely from the industry;" correct, sir?
A. That's what the document says, yes.
Q. And what I've been asking you about for the last half a day are documents that came out within the last week; aren't I?
A. I don't know when they came out. I --
Q. Well --
A. I assume that that may be. I know there was a big release of documents I've read in the paper, but I'm --
Q. And sir --
I don't want to know about the paper. Remember, I told you about that earlier. Okay?
A. Sorry.
Q. Can't know -- can't know about papers. All right?
A. Okay.
Q. And sir, you first saw these documents over the last few days; correct?
A. Well these are ones that you've designated for my cross- examination, so they were sent over and I reviewed them.
Q. Your lawyers didn't show them to you before I designated them; did they?
A. No.
Q. So you never saw them until we designated the documents and asked you to read them; is that right?
A. With the exceptions of bits and pieces that have been published in articles like the Journal of the American Medical Association and other places -- some of these things have been out in the public now for a while. Some of them I've seen either in whole or quotes, but by and large the majority of the ones we've talked about the last couple of days are ones that I've only seen in the last day or two.
Q. Because that's the first time they've seen the fresh air of the light of day; is that right, sir?
A. Well because you designated these and sent them over, and I reviewed them for that reason.
Q. And if you go to Exhibit 18989 --
A. Same binder?
Q. Same volume. First document, sir. Very first document in the volume.
A. Well mine says 19 --
Q. I'm sorry. 18989.
A. That must be the other binder. Yeah.
*17 Q. Are you in volume two?
A. Well I don't know, but this one --
Unless I've got it backwards or something.
Q. You're right. It will be in the -- the last one of volume one. I was going to make it easier for you and I made it harder; I put it in the same volume.
A. All right. 18989.
Q. Correct.
A. Yeah, I got it.
Q. And this refers to the Brown & Williamson documents; correct?
A. Yes.
Q. And it's signed by a number of doctors out there; correct? If you look at the last page.
A. Yes.
Q. And they say, "On behalf of the physicians of this country and the people they serve, the AMA pledges its best efforts to the eradication of tobacco-related disease. We solicit the support of the public and our government in this endeavor. It is a worthy cause." Then they list their names; correct?
A. Yes.
Q. And this is a document that was in the JAMA, 1995, volume number 274; correct?
A. Yes.
Q. That is the premier peer-reviewed journal for doctors in this country, outside of the New England Journal of Medicine; correct?
A. Well it's certainly one -- it's a big one. I think it's one that represents the American Medical Association.
Q. Goes to all the doctors; correct?
A. I don't know if it goes to all of them, but it's certainly one of the major journals that they -- that they read.
Q. Now if you go to page one, in the right-hand column, talking about the Brown & Williamson documents, these doctors state, "The documents show:
"that research conducted by tobacco companies into the deleterious health effects of tobacco was often more advanced and sophisticated than studies by the medical community." Correct?
A. That's what it says. I don't agree with that, but that's what it says.
Q. But that's what these doctors said; didn't they, sir?
A. Yes.
Q. Okay. And --
A. The only thing, I could comment if I had an example.
Q. Sir, and these doctors did not even have all the documents that have been produced in this case; did they?
A. I doubt -- I doubt it.
Q. And the third bullet point says "that the industry decided to conceal the truth from the public;" correct?
A. The third bullet?
Yes, that's what it says.
Q. And if we go down under the last bullet point, to the paragraph, "We think...."
A. Yes.
Q. Do you see that? "We think these documents and the analyses merit the careful attention of our readership" --
And those are doctors; correct, by and large?
A. I believe that's what it indicated, yes.
Q. Okay. JAMA, the Journal for the American Medical Association, goes out to doctors throughout this country; correct?
A. Yes.
Q. In fact, it goes throughout the world; doesn't it?
A. I believe so.
Q. It goes to toxicologists; doesn't it?
A. Yes.
Q. All kinds of scientists can take subscriptions to the Journal for the American Medical Association; can't they?
*18 A. Yes.
Q. And so these doctors are saying that the documents and the analyses merit the careful attention of the readership "because they provide massive, detailed, and damning evidence of the tactics of the tobacco industry. They show us how this industry has managed to spread confusion by suppressing, manipulating, and distorting the scientific record." That's what they say; don't they?
A. That's what it says.
Q. These are doctors, not ordinary consumers who don't generally read medical journals; correct?
A. That's correct.
Q. And you would agree that the average consumer doesn't read medical journals; wouldn't you?
A. Probably not.
Q. And these doctors are saying that the industry, including your company, spread massive confusion; correct?
A. That's what the document says.
Q. And they suppressed and manipulated and distorted the scientific record; correct?
A. That's what the document says.
Q. And on the next page, sir, they say "Why are we publishing these articles?" Do you see that?
A. Yes.
Q. "For many decades, the mission of the American Medical Association has been to 'promote the science and art of medicine and the betterment of public health.' To remain silent about the B&W papers would be to deny our mission. Quite simply, we are publishing this research because it is the right thing to do.
"Analysis of these papers suggests that we would have seen a very different picture of tobacco use today if the group knowing the most about the dangers of tobacco use, the industry, had been honest with its customers." That's what they reported; didn't they, sir?
A. That's what the document says.
Q. And do you know or have you seen any study of how many youth under the age of 18 have started smoking since your industry pledged to the American people in the Frank Statement that we accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business? Do you know how many?
A. I've seen reference to studies on youth smoking, but I don't know what the estimate of the numbers are since 1954.
Q. Tens upon tens of millions; isn't that right?
A. I don't know what the number -- what the number is.
Q. You've seen studies that say three thousand children a day start smoking; haven't you?
A. Yes, I've seen studies that indicate that.
Q. That would be tens of millions over that four-decade period of time where you made this pledge; wouldn't it, sir?
A. I don't know. I -- I can't make an estimate. The -- the studies that are talking about recent times, I don't know if they are reflective of what was happening back in 1954 or not.
Q. Do you have any idea how many people have died as a result of smoking- related diseases during that period of time?
A. No.
Q. You do know it's reported to be over 400,000 a year; don't you?
A. I'm familiar with those reports, yes.
*19 Q. And sir, scientific information comes from company files; doesn't it?
A. Well scientific information comes from a lot of places. We also have scientific information. By and large, the overwhelming majority of scientific information comes from the scientific community.
Q. I asked you if it can come from the files of the companies themselves, sir.
A. It can come from a lot of places, including company files.
Q. Now if we could go back to Mr. Wells' letter.
A. Which volume?
Q. 26210. In 1989 --
A. Is that in volume two?
Q. It is, sir.
A. And I'm sorry, what was the tab again?
Q. 26210.
A. Got it.
Q. Now we were at that point right after -- we were at number two. Do you see that, "The witness probably will be unprepared to explain the documents adequately to preserve the credibility for the management statements on smoking and health." You remember where we were?
A. Yes.
Q. And we went off on whether or not the government should be warning. Do you remember that?
A. Yes.
Q. All right. And then Mr. Wells goes on, "The witness perhaps could be prepared to survive superficial questioning on the documents produced now. However, he is likely to be confronted with additional waves of documents." Do you see that?
A. Yes.
Q. If you go on to the next page, number four, it states, "It is important to avoid production of the documents as long as possible." Do you see that?
A. Yes.
Q. And do you know how long Brown & Williamson was able to avoid production of their internal documents?
MR. BERNICK: Objection, lack of foundation, assumes facts not in evidence, and this document relates to Canadian litigation.
THE COURT: You may answer if you know.
A. I don't know. I'm not involved in the document- production process, but I have no indication that any documents were improperly withheld from production. But I just don't know that much about the process.
Q. You see the reference in the next paragraph to Dewey, D- e-w-e-y?
A. Yeah. At the bottom of the paragraph?
Q. Yes.
A. I see the word Dewey.
Q. And to Haines?
A. Yes.
Q. Those are U.S. cases. Are you aware of that?
A. No.
Q. When you got your orientation from Shook, Hardy & Bacon, they didn't tell you about that?
A. They may have, but that was seven years ago. I haven't looked at -- I haven't looked at those notes since then, other than yesterday. I don't remember.
Q. So the first time you looked at your own notes from the meeting you had with Shook, Hardy & Bacon immediately after you started with Brown & Williamson was yesterday.
A. Either yesterday or the day before.
Q. Do you know during the period 1954 to 1994 how many documents were produced by Brown & Williamson in litigation?
A. No, I don't.
Q. If I asked you to assume that it's 1350 documents, would you make that assumption?
MR. BERNICK: Your Honor, that's an improper assumption to ask the witness to make. There is no predicate showing during the course of this entire trial that relates to the subject matter, nor are we talking about years of cases and documents requests. There's a lack of foundation for this line of questioning.
*20 MR. CIRESI: Your Honor, may I approach the witness?
THE COURT: You'll have to lay a foundation for that question, counsel.
MR. CIRESI: May I approach the witness?
THE COURT: All right.
(Document handed to the witness.)
BY MR. CIRESI:
Q. Sir, I've handed you a deposition of Richard M. Lowther. You know who he is.
A. I'm vaguely familiar with him. I've never met him.
Q. He's with --
He's with Brown & Williamson.
MR. BERNICK: Your Honor, before there's any further questioning along these lines, I'd like to approach the court at the side-bar about the proprietary of this examination.
THE COURT: Why don't we take a short recess, and counsel can approach the side-bar.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: Please rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: You may be seated.
MR. BERNICK: Your Honor, I have a brief follow-up on the side-bar that we had just before we broke.
THE COURT: All right.
THE COURT: Ladies and gentlemen -- I need to turn on my microphone -- any reference that you have seen to claimed settlement figures in other cases are irrelevant and you should disregard them.
Counsel, proceed.
MR. CIRESI: Thank you, Your Honor.
BY MR. CIRESI:
Q. Doctor, with regard to the deposition in front of you, that's what I handed you right before we broke. Do you recall that?
A. Yes.
Q. And I was asking you about the number of pages that have been produced by Brown & Williamson from 1954 to 1994.
A. Yes.
Q. Do you recall that?
Now the deposition, as I indicated, is of Richard Lowther, L-o-w-t-h-e-r, who, as you said, was a -- is an employee of Brown & Williamson that you don't know very well; is that correct?
A. No, I don't know him.
Q. He was, I will represent to you, produced as the corporate designee on behalf of Brown & Williamson to testify under oath on the documents that had been collected and produced in smoking-and-health litigation. Do you understand that?
A. Yes.
Q. All right. Can you direct your attention to page 283 of his deposition.
A. Yes.
Q. Line eight.
A. Yes.
Q. "Question: My question is simple, sir: From 1954 to 1994, Brown & Williamson only produced a total of 1350 pages in any individual product liability smoking-and-health-related case. That's true, isn't it, sir?
"Answer: I believe that's correct."
Do you see that?
A. Yes.
Q. All right. Before you testified, were you aware that the total number of pages ever produced by Brown & Williamson before this case was 1350 pages?
A. No.
Q. Now yesterday, sir, you talked about Mr. Jacob. Do you remember that? The lawyer who represented Brown & Williamson and RJR, you said?
*21 A. I don't specifically recall, but I may have.
Q. Okay. And do you know if he also represented other companies?
A. No, I don't know if -- if he did or did not.
Q. Okay. Can you direct your attention to Exhibit 26227, which would be in volume two. It's toward the back, sir; it's maybe a third from the back.
A. Okay. I've got it.
Q. Do you see that this is a Philip Morris interoffice memorandum?
A. Yes.
Q. Dated March 21, 1980, from William Dunn --
A. Yes.
Q. -- to Dr. Seligman?
A. Yes.
MR. CIRESI: Your Honor, we'd offer Exhibit 26227.
MR. BERNICK: No objection.
THE COURT: Court will receive 26227.
BY MR. CIRESI:
Q. Now you recall that I was asking you about biological research and the fact that BATCo stopped doing in-house biological research on whole animals in 1985, and then we looked at that document that so indicated?
A. Yes.
Q. If you could go to --
First of all, you see this is dated March 21, 1980 from Mr. Dunn to Dr. Seligman, the nicotine receptor program. Do you see that?
A. Yes. Yes, I do.
Q. And if you go over to the second page, do you see the reference there to Ed Jacobs in the first paragraph? Third line, sir.
A. Okay. I'm -- I'm -- I'm trying to get there. I think I have to --
It's hard for me to read this particular monitor.
Q. Okay. If you take a look at the hard copy in front of you.
A. Yes.
Q. Okay. Now Mr. Jacobs represented the whole industry; didn't he?
A. I don't know if he did or not.
Q. Are you aware of whether or not Mr. Jacobs formed industry positions for companies to take?
A. I don't know if he did or not.
Q. Can you go back to the first page of this document. Do you know who Dr. Abood is?
A. No.
Q. Have you ever heard of him?
A. No.
Q. Do you see in the first paragraph that Dr. Dunn here is talking about the topic of psycho-pharmacology of nicotine?
A. In the first paragraph?
Q. Yes.
A. Yes.
Q. And he's also talking about an internal nicotine analog program and the internal animal behavior program?
A. Yes.
Q. And do you recall the document that we saw yesterday from RJR talking about the gentlemen's agreement and the fact that it appeared that Philip Morris was doing some in-house animal research?
A. Yes, but I -- I forgot the date of that memo.
Q. I believe it was in 1981. Do you remember that?
A. I don't remember, but I'll accept -- I'll accept that.
Q. Okay. And do you recall that it said that it appeared that Philip Morris had been doing that for a few years?
A. Yes.
Q. And that it would be -- and that that fact had been communicated to all concerned?
A. Yes.
Q. Okay. Now if we go on to the next paragraph, it says, "The psychopharmacology of nicotine is a highly vexatious topic. It is where the action is for those doing fundamental research on smoking, and from where most likely will come significant scientific developments profoundly influencing the industry. Yet it is where our attorneys least want us to be, for two reasons." Do you see that?
*22 A. Yes.
Q. "It is important to have these two reasons expressed and distinguished one from another. The first reason is the oldest and is implicit in the legal strategy employed over the years in defending corporations within the industry from the claims of heirs and estates of deceased smokers: 'We within the industry are ignorant of any relationship between smoking and disease. Within our laboratories no work is being conducted on biological systems.' That posture has moderated considerably as our attorneys of have come to acknowledge that the original carte blanche avoidance of all biological research is not required in order to plead ignorance about any pathological relationship between smoke and smoker. This is an important distinction that has been made which is -- it is well to articulate: The acute, transient, short-lived effects of nicotine upon a physiological system (among which are those effects or that effect sought by the smoker) are wholly independent of those alleged, cumulative, long-term contributions of smoke compounds to disease processes."
Next paragraph, "We are now being allowed to conduct research on the immediate effects of nicotine because of this distinction."
So you see there that there is a distinction being made between the effect of nicotine apart from the effect of smoking and disease. Do you see that?
A. Yes.
Q. "We can work with biological systems; we can inject nicotine in rats and we can perform the surgery required for implanting cannulae."
Do you know what that is?
A. Cannulae? Yes.
Q. What is that, sir?
A. It's a -- it's a tube used to insert into some body part to -- to introduce a test material.
Q. Have you ever --
A. Or -- or you can also draw blood with it. It's just a tube. It's typically put in a blood vein or an artery.
Q. Have you ever used one?
A. Yes.
Q. "But in doing so we are engaging in research on the pharmacological action of nicotine, which brings us to the second concern of our attorneys. This is a more recent concern arising from increasingly favorable prospects for the success of a legislative effort to transfer authority for the regulation of tobacco manufacture to a federal agency (F.D.A.) known to have interests and powers antithetical to the interests of the industry. Any action on our part, such as research on the psychopharmacology of nicotine, which implicitly or explicitly treats nicotine as a drug, could well be viewed as a tacit acknowledgment that nicotine is a drug. Such acknowledgment, contend our attorneys, would be untimely. Therefore, although permitted to continue the development of a three-pronged program to study the drug nicotine, we must not be visible about it."
Then we go on to the next page. "I have made these observations not to ridicule but rather to emphasize the vexatiousness of the topic. Everybody is vexed. The Don Hoels and the Ed Jacobs" --
Now the Don Hoels and the Ed Jacobs, they represented the industry as a whole; didn't they, sir?
*23 A. I don't know if they did or not.
Q. Do you --
You don't know whether or not they set the policy with regard to biological research?
MR. BERNICK: Your Honor, this is the second time that this line has been pursued. There's no foundation for this line of examination. It's not been established that this witness is knowledeable about either counsel, who they represented, or what they did.
THE COURT: Well counsel, can you lay some information for that.
BY MR. CIRESI:
Q. Sir, do you see where there's a distinction between the Don Hoels and the Ed Jacobs and the corporate lawyers for Philip Morris?
A. Yes.
Q. And you've already testified that Jacobs, at least, represented RJR and Brown & Williamson; correct?
A. I'm sorry? I -- I was reading that. I -- I didn't hear your question.
Q. You've already testified that Ed Jacobs represented both RJR and Brown & Williamson; correct?
A. I don't recall. I may have.
Q. And have you had dealings with Mr. Jacobs?
A. I have --
I've met him, yes.
Q. Okay. You know he represents the entire industry; don't you?
A. I don't know that.
Q. You've never had that discussion with Mr. Jacobs?
A. Represented the entire industry?
MR. BERNICK: Your Honor, this is -- this is --
Q. Yes.
MR. BERNICK: -- the fourth time the question has been posed. The witness has answered each time.
THE COURT: He apparently doesn't know, counsel.
BY MR. CIRESI:
Q. Now when you were at RJR, were you aware that in-house biological research was not to be done by RJR pursuant to a gentlemen's agreement?
A. When I was at RJR, not only was in-house biological research being done, but they constructed a toxicological testing facility on their premises to conduct that research.
Q. When did they --
A. That's completely contrary to my experience while I was at RJR.
Q. When did they construct it, sir?
A. I don't know the exact date. It was in the early '80s, mid-'80s.
Q. You started there in 1985?
A. Either '84 or '85.
Q. Was it in existence when you started?
A. No.
Q. Were you doing --
A. But work was being done.
Q. Were you doing any specific work in that laboratory?
A. No.
Q. Do you know whether or not RJR or were you -- strike that.
Were you ever told whether RJR had closed down an in-house biological research laboratory?
A. I was aware that there was a -- not a laboratory --
Maybe there was a lab. But I was aware there was a program which, you know, had its -- had its -- a finite period. It started, it progressed, and then it was -- then it reached its conclusion, apparently. I mean I was aware that a program existed. I don't know the details of it.
Q. Okay. So you don't know anything about the details of how abruptly or anything else it was shut down.
A. No.
Q. Nobody ever gave you --
A. Nor the circumstances related to it, no.
*24 Q. Okay. Nobody ever provided you with any of that information.
A. No details, no.
Q. Now after BATCo stopped in-house biological research in 1985 --
A. I don't believe that was my testimony.
Q. Excuse me.
A. That was not my testimony.
Q. After BATCo stopped in-house biological research on whole animals in 1985, did it ever start that type of research again?
A. What type of research?
Q. In-house biological research on whole animals.
A. That was contracted out. That work was, --
Q. Okay.
A. -- you know, set in contract laboratories.
Q. So that from 1985 forward, as far as you know, that type of work was always contracted out to third parties; correct?
A. My understanding is that they maintained in vitro biological testing capabilities internally, and took the decision essentially to outsource biological research in contract laboratories. Very common practice.
Q. And "in vitro" is in test tubes; is it not?
A. Well it means --
Essentially, yes. Either test tubes or glass dishes. It means not in whole animals.
Q. And "in vivo" would be in whole animals; correct?
A. That's correct. That's correct.
Q. And it's the in vivo type of research, scientific research, that was contracted out, or, as you say, outsourced to third parties in 1985, as far as you know.
A. Yes.
Q. And that has continued up to this day; correct, sir?
A. Yes.
Q. Or up to 1994 I should say; is that correct?
A. Up to 1994, yes.
Q. Okay. Can you direct your attention, then, to Exhibit 1981. It's the Surgeon General's report. That would be, I think, to your right, sir.
A. In a folder?
Q. Yes. It would be a document on its own.
A. Right.
Okay.
Q. Do you have that, sir?
A. Yes.
Q. Now have you read the 1981 Surgeon General's report?
A. Yes.
Q. Cover to cover, so to speak?
A. I've read the majority of it. I don't know if I've read every single word cover to cover.
Q. Okay. Did you select out certain parts that you might have particular interest in?
A. Well I did read certain areas that I either had not read in other documents --
There's a lot of -- lot of material in these reports that's somewhat repetitive. So I -- I mean anything that I was already aware of I may have skipped over it, and focused on the things that was new and unique to this particular report.
Q. All right. Now when you read it, did you read its primary conclusions?
A. Yes.
Q. Okay. Can you go to the page which bears the Roman numeral v one, vi if you will, Roman numeral vi.
A. Yes.
Q. Do you have that?
A. Yes.
Q. Okay. And those are the basic findings; correct?
A. Yes.
Q. And did you read this in 1985 when you started with RJR?
A. I may have. I read a number of Surgeon General's reports. I don't remember if I specifically read this one. But I have read it.
Q. Would your responsibilities at RJR have required you to read the report once it came out?
*25 A. Not initially, but eventually, yes.
Q. Okay. Certainly in 1981 you weren't in the business; correct, sir?
A. No.
Q. All right. So if you read this, it would have been sometime after you started at RJR.
A. Yes.
Q. Now the first basic finding is that there is no safe cigarette and no safe level of consumption; correct?
A. Yes.
Q. Has Brown & Williamson ever stated to the public that there is no safe cigarette and no safe level of consumption?
A. Well I don't --
We have never made health claims about our cigarettes, and I think my answer would be the same as what it was before: Before making that statement, we would determine whether or not there would be any value to the consumer, and if the purpose is to provide potential health effects information to guide their choice to smoke, I think that that information is out there.
Q. Is your answer no?
A. Could you repeat the question?
Q. Sure.
Has Brown & Williamson ever told the consuming public that there is no safe cigarette and no safe level of consumption?
A. I'm not aware of any instance where we've taken out a full-page ad in a newspaper and said that.
Q. You haven't even taken out a one-line ad in a newspaper that said that; have you?
A. Not that I'm aware of.
Q. You haven't said that anyplace; have you?
A. Not that I'm aware of.
Q. Now, if we could go down to conclusion number seven, it says, "A final question is unresolved, whether the new cigarettes being produced today introduce new risks through their design, filtering mechanisms, tobacco ingredients, or additives. The chief concern is additives. The Public Health Service has been unable to assess the relative risks of cigarette additives because information was not available from manufacturers as to what these additives are." Do you see that?
A. Yes, I do.
Q. And when you read this the first time, were you aware that that was the history with respect to additives and whether they were known by public health authorities?
A. Well I mean the fact that the tobacco industry uses additives has been known from the time of the first Surgeon General's report back in 1964 because they talked about it, and it's been talked about in other reports and it's been a topic in the published literature, that additives are used and what their nature is. However, I don't believe that specific recipes for brands were known.
Q. Yeah. No manufacturer had told anybody what specific additives and what amount, et cetera, were used in their cigarettes; had they?
A. No. That's typically not what consumer product companies do.
Q. Now if you go on to page five of the Surgeon General's report, sir, and I'd like to direct your attention to the bottom, starting with "The technology...." Do you see that?
A. Yes.
Q. Okay. "The technology for producing lower tar cigarettes has progressed well beyond a simple reduction in the amount of tobacco in the cigarette or the removal of a portion of the tar by filtration. Present technology has achieved tar reduction by alterations in plant genetics, changes in the cultivation and processing of the tobacco leaf, and changes in cigarette paper and filtration of the cigarette.
*26 "The methods used in testing cigarettes by machine may not correspond to the way persons actually smoke. There is evidence to suggest that cigarette yields measured by machine are very different from the yields that the consumer actually obtains by smoking the cigarette, due in part to the difference in patterns of smoking between testing machines and individual smokers. Therefore, tar measurements of current cigarettes may not reflect the same risks -- same estimate of risk provided by the tar measurement of cigarettes manufactured at the time of the 1996 Public Health Service Review.
"Another closely related concern about lower tar and nicotine cigarettes is the use of flavorings and other chemical additives. In order to enhance consumer acceptability, flavoring substances are added to cigarettes; it may be that the lower the tar yield, the more flavoring additives are used. It is impossible to make an assessment of the risks of these additives, as cigarette manufacturers are not required to reveal what additives they use. No agency of the federal government currently exercises oversight or regulatory authority in the manufacture of cigarette products. Further, no agency is empowered to require public or confidential disclosure of the additives actually in use by the cigarette manufacturers."
Now, when you started with RJR, you became aware of that history with regard to additives; did you not?
A. Yes.
Q. And when you started at Brown & Williamson, you were aware of that history; correct?
A. Yes.
Q. And you were aware that in 1984 a law was passed by Congress which required certain types of disclosures of additives by the following year; correct?
A. Yes.
Q. So in October of 1985, additives of the industry being used were required to be disclosed to the government; correct?
A. That sounds -- well I --
I'm not sure if it was October or if it was the end of December, but they were required to be disclosed in '85.
Q. And the way they are disclosed is through a law firm in Washington, D.C.; correct?
A. Well that wasn't the way they were required to be disclosed, but that was a method that the industry chose to employ.
Q. And they sent the additives to this law firm, which is Covington & Burling?
A. Yes.
Q. And then the information is sent on to the government; is that correct?
A. Yes. Well the information is compiled first, and then sent on to the government in a compiled form.
Q. Now when it's compiled, is it compiled and disseminated to the government by cigarette brand?
A. No.
Q. So the government still wouldn't know which additives are in which brand; correct?
A. Well they would know what additives are used in cigarettes, but it wouldn't be by brand. So they would certainly be aware of every additive that's used in cigarettes sold in the United States.
Q. Now in reviewing the documents at Brown & Williamson, you did learn, did you not, that freon had been used in its cigarettes?
*27 A. I believe it was used for a short period of time.
Q. And can you direct your attention to Exhibit 26219.
A. Which volume?
Q. 26219.
A. That would be volume two or one?
Q. That would be volume two, sir, about a third of the way from the back. Do you have it?
A. Yes.
Q. Okay. I apologize for the quality of the copy, but that's the best we could get.
A. Okay.
Q. Do you see that that's a memorandum dated June 2nd, 1977 from Ernest Pepples to Mr. Hughes?
A. Yes.
Q. And he was the CEO of Brown & Williamson at that time?
A. I believe so.
MR. CIRESI: Your Honor, we'll offer Exhibit 26219.
MR. BERNICK: Same objections as previously on the record, Your Honor, on Rule 403 and the like.
THE COURT: Court will receive 26219.
BY MR. CIRESI:
Q. Now do you see that the first sentence refers to alternatives by which Brown & Williamson could use the G-13 process?
A. Yes.
Q. And the G-13 process was the freon additive that was used in reconstituted tobacco?
A. It was used as the -- the -- the gas used to expand tobacco --
Q. Okay.
A. -- in the -- not reconstituted process, but in the expansion process.
Q. In the expanded tobacco; correct?
A. Yes.
Q. All right. Now do you know how long Brown & Williamson used it?
A. No, I don't recall that. I know it's for a short period of time, but I don't recall exactly how long.
Q. You know that Brown & Williamson did not test the freon in any way before it placed it into its expanded tobacco and into the stream of commerce; don't you?
A. Well I know that R. J. Reynolds did extensive testing and so did the National Cancer Institute, and that that information was available to us.
Q. Well you know, though, that Brown & Williamson didn't do any testing. That was my question.
A. Well I don't believe there was a need to do any testing. It had already been done.
Q. All right. Now do you see in this document at the second paragraph, Mr. Pepples is reporting to Mr. Hughes, "We are advised that cigarettes contain 5 parts per million freon at the time of manufacture. There has been no specific analysis for phosgene by Reynolds in its product testing and no long- term study conducted to determine the effects, if any, resulting from the inhalation of minute amounts of freon and phosgene over extended periods of time." Do you see that?
A. Yes.
Q. So at least Mr. Pepples was reporting to Mr. Hughes in 1977 that there had been no studies with regard to that subject matter; correct?
A. Yes. He -- he may not have been aware of what information was out there.
Q. May not have been aware.
Now when Brown & Williamson put cigarettes into the marketplace, do they say only smoke X number per day?
A. No.
Q. Do they say only smoke for a week or two weeks?
A. No.
Q. Do they put any time limit on the use of cigarettes?
A. No.
Q. Do you know what the environment of use of a product is?
*28 A. What the what?
Q. Environment of use of a product is.
A. I don't know what you mean, what you're referring to.
Q. All right. I'd like you to assume that the environment of use is how you expect your product to be used in its intended way by people who are using the product.
A. Okay.
Q. Okay? You understand that; don't you?
A. Well I understand your current definition. That's not what I --
I didn't know what you meant, frankly, when you were saying that.
Q. All right. Do you know if design engineers take into account the environment of use in designing products?
A. Well now that you have defined the concept, I would certainly expect that they would.
Q. Okay. And cigarette manufacturers expect that they'll have smokers who will smoke for 20, 30, 40 years; correct?
A. I think that they're aware that people do that; when people smoke, they may smoke for 20 or 30 years.
Q. And that's in the environment of use; correct?
A. As you defined it, yes.
Q. And that they could smoke any number of cigarettes per day; correct?
A. Well within practical limits. I mean I think there's information about how much -- what the range is of cigarettes that people may smoke, including the extremes. But within those limits, I think that they're aware of how much people may smoke.
Q. Some people smoke a pack a day; correct?
A. Yes.
Q. Some people smoke two or three packs a day; correct?
A. Yes.
Q. And then there's people that are called chippers in the industry; correct?
A. I've heard that term.
Q. And that's people who may take a cigarette now and then.
A. Right.
Q. Puff a cigarette. Is that right?
A. Yes. Well that's my understanding of the term.
Q. And that's a term that's used in the industry, "chippers;" correct?
A. Well we don't use it that much. I've only seen it in published documents that talk about people who only smoke one or two cigarettes a day or something like that. It's not a term that we use, I mean not -- not that I use or anybody I know uses.
Q. Well you've heard that used at --
A. Yes, I have heard that term.
Q. Okay. And you've heard it at RJR and at Brown & Williamson; have you not?
A. Well I -- I never heard it at RJR, and I only heard it at Brown & Williamson in relation to documents, outside external literature that discussed the phenomenon of people who smoke only a couple of cigarettes a day.
Q. Now what Mr. Pepples is talking about here is the long- term effect of someone who would smoke cigarettes with freon in them over a long period of time; correct?
A. He is discussing long-term --
It's really hard for me to read that.
Q. Well he's talking about no long-term study. Do you see that?
A. Could you please point it out to me?
Q. Sure. It's in the second paragraph.
A. "It is our understanding...?"
Q. "There has been no specific analysis for phosgene by Reynolds in its product testing and no long-term study conducted to determine the effects, if any, resulting from the inhalation." Do you see that?
*29 A. Yes.
Q. Okay. So he's talking about long-term use; correct?
A. Right.
Q. All right. Now then he goes on to say -- if you go down a little bit, do you see where it says "My view continues to be...?"
A. Yes.
Q. Okay. "My view continues to be that the risk of adverse consequences to Brown & Williamson arising from the use of G-13 processed tobacco in its cigarettes far outweighs the suggested economic benefits." Do you see that?
A. Yes.
Q. Now the economic benefits was that when you use expanded tobacco, you need less tobacco per cigarette rod; correct?
A. Yes, it can be used that way.
Q. You can make the cigarette cheaper; correct?
A. Yes.
Q. So that's the economic benefit that we're talking about; correct?
A. Yes.
Q. And then he says about the risks, if we go down -- or the adverse consequences, he lists number one; doesn't he?
A. Yes.
Q. "As we have previously discussed there are three problem areas in the use of the G-13 process:"
Number one, "The safety of the smoker particularly in light of the phosgene theory." Correct?
A. Yes.
Q. Now when you were at RJR, do you know how long freon was used in their expanded tobacco?
A. No, I don't know the time course of their use of it.
Q. Decades?
A. I don't know.
Q. Do you know of any study conducted by RJR or Brown & Williamson as to the long-term effects of someone smoking cigarettes that have had freon injected into them?
A. Yes. R. J. Reynolds did extensive studies. They relied on inhalation studies of tobacco which had been expanded with freon, they did skin-painting studies, and they did a number of chemistry studies to test whether or not this phosgene theory in fact seemed to be operational.
Q. Sir, I'm asking long-term study conducted --
A. Well some of those studies were long term.
Q. How long?
A. The skin-painting, my recollection -- and it's been a while since, you know, I've had access to this information -- was a two-year chronic study, which is the lifetime of a rodent, which is what these studies are done in. Also the National Cancer Institute tested tobacco expanded by this process in their program, this is the program that we talked about earlier, and they also employed the two-year mouse skin-painting protocol.
Q. Two-year.
A. And they found it no different from tobacco that was not expanded with freon.
Q. Are you aware of any test conducted over a two-year period using humans with freon?
A. Well freon has been -- there's a --
There's a long history of use of freon industrially.
Q. Sir, I'm asking about cigarettes.
A. Generally it's non-toxic.
Q. I'm asking about cigarettes. Okay? Have you --
Are you aware of any long-term study regarding freon cigarettes with human beings? Are you aware of one?
A. Cigarettes aren't typically tested in humans, especially toxicity tests.
Q. It would be unethical to do that; wouldn't it?
*30 A. Well it depends on what you're referring to. I mean lots of studies have been done with cigarettes in humans looking at things like nicotine absorption or carbon monoxide absorption, but I'm not sure what you're proposing. If you give me some sense of what you're talking about, I could give you an opinion on whether I would regard that as ethical or not.
Q. It would be medically unethical to do a study and take a non-smoker, have them smoke freon-laced cigarettes over a long period of time, to see what type of disease they may contract.
A. I don't know if that would be medically unethical or not. I don't -- I don't believe that cigarette tobacco expan --
I don't think that freon expansion alters the basic properties of tobacco, and -- and a lot of toxicological testing confirms that. Now studies have not been done specifically on freon expanded tobacco in humans, but a lot of studies have been done on freon in humans, and it's -- it's non-toxic.
Q. Not in inhaling freon --
A. Well --
Q. -- into the alveoli of lungs --
A. Well actually there has been --
Q. -- for years -- excuse me, sir.
-- for a period of 10 or 20 years. No such study has been conducted.
A. There's been a long history of industrial use of freon --
Q. Sir --
A. -- and occupational exposure to it, and there's a lot of industrial hygiene literature concerning that.
Q. That wasn't my question. My question was an inhalation study over 20 years with a freon cigarette.
MR. BERNICK: Your Honor --
Q. Has that type of study been done?
MR. BERNICK: Your Honor, I think he just answered that. I don't know that Mr. Ciresi appreciates what an industrial hygiene study is.
THE COURT: I don't think he's answered the question that Mr. Ciresi asked.
You may answer that question.
A. Well generally consumer products aren't tested for toxicological effects in humans, any consumer product, whether it be food or cosmetics or beverages. That's just not done. And what you do is you rely on animal toxicity tests and the -- and the experience of industrial hygiene. But if you're asking me has someone conducted a toxicological test, a long-term inhalation study in humans the way it would be conducted in animals, no.
Q. Thank you.
A. I'm -- I'm not aware of any such study.
Q. It would be medically unethical to conduct such a study; correct?
A. Well it depends on what kind of study you're referring to. If you showed me a protocol or described the protocol --
Studies are done in humans with cigarettes all the time, and I -- those pass medical review boards' scrutiny. If you give me some sense of what you're talking about, I can give you an opinion.
Q. Point to me one study that's been conducted where the protocol and methodology is set up whereby you took a non-smoker and said we're going to have you smoke these cigarettes over a long longitudinal study and we're going to compare you with non-smokers to see whether or not you develop lung cancer.
*31 A. I'm not aware of any study like that.
Q. A study like that that said we're going to see if you develop chronic obstructive pulmonary disease.
A. I'm not aware of any study like that with any product, cigarettes or non-cigarettes.
Q. It would be medically unethical to take a human being and tell them you're going to subject them to cigarette smoke over that period of time to see whether or not they will develop disease as contrasted with people who don't smoke; wouldn't it, sir?
A. I would think, if you intended to test any product and test the toxicity over a long period of time, that would not pass anybody -- anybody's medical review board.
Q. Now Mr. Pepples in 1977, on page three of this exhibit --
Do you have page three, sir?
A. I'm following it on the screen here.
Q. Okay. "Returning to the phosgene theory, we have no way of knowing whether it has any scientific merit at all. The Reynolds feasibility study which was presented to us does not even mention the phosgene theory. And while it does not say that Reynolds looked -- And while it does say that Reynolds looked for contaminants in the smoke and found none that were material, we see no evidence that they specifically looked for phosgene." Do you see that?
A. Yes.
Q. "Dr. Ahmed, the staff scientist for NRDC, makes the flat statement that F-11 does decompose to phosgene at temperature ranges easily achieved in the combustion of tobacco products." Do you see that?
A. Yes.
Q. And phosgene is a gas that kills; correct?
A. Well it's toxic. It depends on what dose one receives. It could. It can kill if one gets a high-enough exposure.
Q. Well it was used in World War I as a weapon; wasn't it?
A. I believe it has been used.
Q. Now have you reviewed any documents of RJR to see what their quality control was with respect to the parts per million that actually got into the commercial cigarettes?
A. You mean pertaining to the analytical method used to measure freon?
Q. No. I'm talking about test results which would show how much they actually got, parts per million into the cigarettes. Have you seen any such studies?
A. I've seen --
Yes, I've seen test results of what potential residues are of freon in cigarettes following the tobacco expansion process.
Q. And when did you look at those documents?
A. When I was at RJR.
Q. And so they were RJR's documents.
A. Yes.
Q. Have you seen any BATCo or Brown & Williamson documents regarding that subject?
A. Well no, not --
With the exception of this document, no.
Q. So you've never seen any that would show whether or not the part-per- million levels were far in advance of what was shown in the Reynolds documents.
A. No, I haven't.
Q. Can you direct your attention, please, to Exhibit 21 -- I'm sorry, 26199.
Did you get an opportunity with regard to the freon and phosgene to read Mr. Townsend's testimony?
*32 A. No.
Q. You didn't see any documents that were discussed with him?
A. No.
Q. If you could turn to 26199. This is a memo regarding additives dated September 25th, 1981, from Mr. Wells to Mr. Pepples.
A. Yes, I see that.
Q. Brown & Williamson document; correct?
A. Yes.
MR. CIRESI: Your Honor, we'd offer 26199.
MR. BERNICK: Objection under Rule 403 and for the other matters set forth in previous briefs before the court.
THE COURT: Court will receive 26199.
BY MR. CIRESI:
Q. Again, you see that this is from Mr. Wells to Mr. Pepples with a carbon copy to Mr. Sachs; correct?
A. Yes.
Q. It's dated September 25th, 1981.
A. Yes.
Q. And this would be after the Surgeon General issued the report in 1981 regarding the additives and the need to test them; correct?
A. Yes.
Q. And on the left-hand side you will see the legend that it's privileged and confidential, and produced as required by the court's March 7th, 1998 order; correct?
A. Yes, that's correct.
Q. Now have you heard of the Committee of Counsel?
A. Yes, I have.
Q. That's a committee set up by the industry where the lawyers from the industry get together?
A. That's my understanding.
Q. Do you have any other understanding of that?
A. No. That's essentially my understanding. It's a committee that's attended by representatives from each company, lawyers from each company.
Q. Do you know if those lawyers at those meetings set scientific protocols?
A. No, I don't. I've never attended a Committee of Counsel meeting.
Q. Committee of Counsel still exists; does it not?
A. I believe so.
Q. And you're aware that it's existed since the 1950s; are you not?
A. I don't know when it was first started.
Q. You'll recall that we saw the document from Mr. Judge, who was the CEO of Lorillard, 1978 document, regarding the Committee of Counsel?
A. Yes. Yes, I do.
Q. And it referred to Mr. Ramm, who was a former general counsel of RJR?
A. Yes.
Q. Referred to Mr. Hetsko, who was a general counsel of American?
A. Yes.
Q. Talked about the abdication of research and scientific materials to the Committee of Counsel?
A. I recall the content of the document.
Q. Now this refers to a Committee of Counsel meeting on September 23rd; correct?
A. Yes.
Q. And it's talking about some positions regarding additives; correct?
A. Yes.
Q. And there's an RJR position; correct?
A. Yes.
Q. And RJR's position was that "Continue meetings with HHS at the industry's initiation and two or three meetings from now submit to HHS a list of commonly used casings and flavorings which would include about thirty items." Do you see that?
A. Yes.
Q. Now HHS is Health and Human Services?
A. Yes.
Q. And this is about four years before the industry was required by legislation to turn over information regarding additives; correct?
*33 A. Yes.
Q. And as of 1981, are you aware of how many additives were used in casings and flavorings by RJR?
A. No.
Q. Well in excess of 30; wasn't it, sir?
A. I assume it was.
Q. In the hundreds; fair?
A. Well there's -- depends on what you categorize, but many --
There are many flavoring ingredients, but they're talking about casings --
Q. And flavorings.
A. -- and flavorings.
Q. In the hundreds; correct, sir?
A. I don't know the exact number at that -- at that time.
Q. Okay. Philip Morris said "Submit a list of about fifty items soon." Correct?
A. Yes.
Q. You wouldn't know how many flavorings and -- how many additives they use in their flavorings and casings; would you?
A. No.
Q. Lorillard position, "Stall any disclosure by industry as long as possible; industry should immediately appoint an independent panel of reputable toxicologists to review a list of as yet undetermined items." Do you see that?
A. Yes.
Q. And Liggett & Myers, "Stall disclosure and industry should immediately appoint one independent toxicologist to review a list." Correct?
A. Yes, that's what the document says.
Q. Now it also reflects the fact that at this Committee of Counsel meeting Mr. Kornegay was in attendance; correct?
A. Yes.
Q. And you know Mr. Kornegay was the head of The Tobacco Institute; do you not?
A. No.
Q. Do you know if he was with The Tobacco Institute and was its president at any time?
A. I've never --
This is the first time I've heard the name.
Q. All right. "Horace Kornegay's assessment of the legislative situation is that the current criticism of the industry on the hill in the additives area is based on the industry's failure to disclose. He cannot predict whether the industry could sell an independent review panel. It is possible." Do you see that?
A. Yes.
Q. He's talking about selling an independent review panel to Congress; correct?
A. I -- I don't know who he's talking about selling it to.
Q. Well from the --
Well he's talking about the industry selling it; isn't he?
A. I don't know. Maybe it's talking -- you said who --
Who did you say he was with?
Q. He's with The Tobacco Institute. I'll represent that to you, sir. Can you accept that?
A. Yes.
Q. But apart from who he was with, it says here whether the industry could sell an independent review panel; correct?
A. Yes.
Q. And selling it is selling it to Congress; isn't that correct?
A. I don't know. Maybe he meant HHS. I -- I don't think I can tell from this document what he's referring to.
Q. Okay. So it's either HHS or some governmental agency; correct?
A. No. What I'm saying is I can't tell. It could have been somebody other than Congress that you're suggesting. I don't know who he was talking about.
Q. Okay.
A. Maybe he's talking about internally. I don't know.
*34 Q. If you go on to the next page --
Well the industry wouldn't sell it to itself internally; would it?
A. Well maybe they were having discussions about positions and there's disagreement about what to do. I don't know.
Q. Well I guess that's fair enough, because it appears here that there is some disagreement. Some wanted to stall and some wanted to put in 30 and others want to put in 50; correct?
A. Well this --
Looks like to me this is a think piece and people are weighing pros and cons of different approaches without us having taken any action yet, and they're -- by its very nature, they're discussing --
You know, we could -- we could go down any number of paths. Let's weigh the pluses and minuses of all those pathways. And that's what they seem to be doing, discussing this on paper.
Q. Have you read this document before?
A. Yes, I have.
Q. When's the first time you read it?
A. I don't know the first time I read it, but I have read it.
Q. Within the last few days?
A. I think I have read it in the last few days, but I -- and I read it prior to that as well.
Q. You read --
A. I read this at a previous trial.
Q. Oh, you read this previously in a trial.
A. Yes.
Q. So you've seen this document before this case.
A. Yes.
Q. All right. If you go on to the next page, then, "Disclosure and Industry Toxicologists - Pro and Con." Do you see that?
A. Yes.
Q. "The following reasons support disclosure:
"There are no toxicological problems with the industry's additives - the judgment about most additives is 'uncertain."' Do you see that?
A. Yes.
Q. Now you're aware, are you not, that there had been no testing on additives up to 1981 by the industry under pyrolysis conditions?
A. That's not true.
Q. You think there had been?
A. I know there had been.
Q. Okay. Where had they been?
A. Where -- you want -- want me --
Q. Where?
A. -- to give you examples?
Q. What company?
A. Well all the companies, including BATCo. I'm most familiar with BATCo's research. But BATCo had done a lot of work. A lot of the work that was described in the American Tobacco research, that -- that program at the Medical College of Virginia, they --
Q. We're going to get to that.
A. -- specifically undertook testing on ingredients.
Q. Okay.
A. National Cancer Institute tested ingredients which were under pyrolysis conditions. There was a lot of work that had been done as you described prior to this time.
Q. Is that why the judgment about most additives is uncertain?
A. I'm not sure what Mr. Wells means there by that. All I know is what I know. Part of this --
Part of the JAMA studies included, in fact, a comparison of cigarettes that were all flue-cured and no additives against an American cigarette with its full complement of additives, and the study showed in fact that for that cigarette that had the additives, the skin -- the reaction to skin-painting test was actually less, the cigarette with additives.
*35 Q. Okay. My question --
A. And that was under pyrolysis conditions.
Q. Fine. And my question is is that why the judgment about - - about most additives is uncertain? That was my question.
A. I don't know what Mr. Wells means by that.
Q. If we go on, then, number two, "If the industry discloses now, the problem will go away."
And three, "Disclosure now will appease critics in Congress who are attacking the industry on the basis of its refusal to disclose." Correct?
A. That's what the document says, yes.
Q. All right. And then it sets forth reasons for opposing disclosure; correct?
A. Yes.
Q. Number one, "There is long term pressure to use the additives issue to attack the industry in public and support adverse legislation, such as the 'little FDA' proposed by the Surgeon General in 1979. Disclosure would give anti-industry activists a focal point for the next phase of the attack, which might begin with the renewal of the HHS request for disclosure of the material which the companies have on hand pertaining to health consequences of each additive or review of the list by scientists who are unfriendly to the industry." Do you see that?
A. Yes.
Q. Now do you know what Mr. Wells had in mind with regard to the material which the companies have on hand pertaining to health consequences?
A. No. It may be what I just mentioned.
Q. Do you know if they were going to destroy any information they had on hand with regard to adverse health consequences?
A. I don't know what they were thinking, but I know that BATCo didn't destroy any information. I've seen the information.
Q. You weren't at BATCo in 1981; were you, sir?
A. No, but I've seen the reports since then.
Q. You have --
You were not at BATCo in 1981; were you?
A. No, I was not.
Q. Number two, "Although the balanced, rational judgment of the industry is that there are no problems with its additives, anti-industry activists would soon create a body of scientific opinion that many of the additives posed grave problems." Do you see that?
A. Yes, that's what the document says.
Q. And do you know what the basis of that statement was?
A. I assume he's worried about litigation, but I don't know.
Q. So you have no idea whether or not there was scientific information in the company's files which show that there was harmful effects on the -- with the additives.
A. No.
Q. If we go on to the next page -- actually we have to start at the bottom, I'm sorry, sir, of page two. "The following reasons support the appointment of an independent panel of scientists." Do you see that?
A. Yes.
Q. Number one, "Avoid adverse legislation by allowing HHS to announce in its -- it is meeting its requirements through industry self- policing." Correct?
A. Yes.
Q. So in other words, the industry was going to self-police itself; correct?
A. Well that was --
*36 I mean this is a whole list of proposals, but that was among the things on the list.
Q. Okay. And this independent panel then would "Avoid mandatory disclosure of all additives." Correct?
A. That's what the document says.
Q. And number three, it would "Improve the public image of cigarettes through HHS endorsement of industry self-policing. Gain control of how additives issue will be handled even if self- policing is not sanctioned." Correct?
A. That's what the document says, yes.
Q. And then there's a reason -- two reasons cited to oppose an industry panel of toxicologists; correct?
A. Yes, that's what it says.
Q. "Products liability litigation risk is increased because of the possibility that the industry appointed panel might conclude that certain additives have problems." Correct?
A. That's what it says.
Q. And number two, "Unnecessary because the problem will go away if the industry simply discloses some number of its additives." Correct?
A. Yes, that's what it says.
Q. Okay. Then it goes on to state, "The product liability litigation risk position stated by Bob Northrip" --
Now do you know where he's from?
A. Shook, Hardy & Bacon.
Q. -- "is based on the opinion that it would be more difficult to defend against adverse assessments of additives by an industry panel than adverse assessments by HHS scientists. The assessment is the same even if the HHS scientists concluded that a larger number of substances were dangerous. The Northrip position is that a better alternative would be company review and testing of additives. If a company -- If company testing began to show adverse results pertaining to a particular additive, the company control would enable the company to terminate the research, remove the additive, and destroy the data."
Is that what he says?
A. That's what the document says.
Q. "Hopefully, company testing would be done prior to adoption of an additive, but if tests were made of an additive in current use the additive would be discontinued and eliminated from the C&B list before HHS had opportunity to make adverse comment." Do you see that?
A. Yes, I do that.
Q. And C&B is Covington & Burling, the law firm that I asked you about just a little while ago; isn't it?
A. I believe so.
Q. Then he goes on to state, "A few comments are in order about the Northrip position. There is no way to know that each company would have performed review and testing of its additives before submitting them to C&B. When Northrip gave his assessment of the seriousness of the risk he described, he assumed that the industry panel would be asked to give a judgment in the form of 'safe' or 'unsafe.' Northrip also assumed that a toxicologist who reviewed the industry list of additives would probably find four or five substances which were problems. This is not his own conclusion; he made this assumption because it had been stated as a probability at the table." Correct?
*37 A. That's what the document says.
Q. And the table they're talking about is the table that these Committee of Counsel sat around and discussed what they were going to do on September 23rd, 1981; correct, sir?
A. Well I don't know what table they're referring to. But this document, as I said, strikes me as where -- a situation where people are -- are throwing up options and say let's look at these and examine these. So by its very nature, the whole range of possibilities, from pro to con, from A to Z, is being examined. For each one they're weighing pluses and minuses about what might be the pluses and minuses or what -- what ought to be done. So it's hard for me to say. I wasn't there. But what I do know is that the industry disclosed all its ingredients to the government and ultimately disclosed all of its ingredients to the public.
Q. Sir --
A. The government has had the list for 10 years now, and they can examine and give an opinion if they think there's a problem. They haven't done that.
Q. Sir, the government doesn't know in what combination additives are used in any particular brand of cigarette; does it?
A. But they know every single additive that's being used. They could imagine any combination they wish. If they have a problem, they're certainly in a position to give an opinion on that.
Q. So you want the government to imagine any possible combination or permutation of any potential cigarette of any potential company and to do long- term testing and then say, "We caught you," --
A. No, I --
Q. -- "you have a problem." Is that what you're suggesting?
A. I'm saying if there's scientific evidence to suggest that two ingredients might form some unique issue or problem, and they look and see these two ingredients are on a list, they certainly can tell us about that, if any ingredient on the list poses a problem for any reason. They've had that knowledge for over 10 years now, but they've never come to us and said we have a problem with this.
Q. Well --
A. But they've had that opportunity. In fact that's been their mandate by Congress.
Q. Let me ask you this: Do you think it would be okay for HHS or any government agency to sit down and have a committee of employees -- let's call them a committee of employees -- and say well, okay, we've got this range of possibilities. I think that is what you talked about in this memo, you said range of possibilities. We've got this range of possibilities. Why don't we do this. Here's one possibility. We'll test, and if any adverse results come up -- we're actually controlling it, so we can then just tell the company to remove the additive and we'll destroy the data. Would that be a good thing for the government to do?
A. I think the government sits down and ponders all kinds of possibilities. What is important is not what they thought about but what they actually ask.
Q. Excuse me.
A. What we actually did was give all the information to the HHS, and we ultimately disclosed it to the public.
*38 Q. I asked you --
A. That's what happened, not what was contemplated.
Q. I asked you if that would be a good possibility for the government to contemplate.
A. I would expect --
MR. BERNICK: I think this asks the witness to opine as to government policy in this area, and I think it is argumentative.
THE COURT: No, you may answer the question.
A. I would expect --
I would hope that the government would consider every aspect of every decision that they made and ultimately conclude to come to the right decision.
Q. So you --
A. Which is what I believe we did.
Q. So you would hope that the government would consider as a possibility that they would test the additive. If they found it adverse to the health effects of smokers, to tell the company remove it, we won't say anything, and we'll destroy the data. That would be a good possibility just to contemplate; is that right?
MR. BERNICK: Your Honor, again it's argumentative and asks for the witness's views on what the government should do.
THE COURT: No, you may answer it. It's a hypothetical.
A. I gave you my answer.
THE COURT: You may answer the question.
A. Well could you please repeat the question?
Q. I certainly will.
So you would hope that the government would consider as a possibility that they would test the additive. If they found it adverse to the health effects of smokers, to tell the company remove it, we won't say anything, and we'll destroy the data. That would be a good possibility just to contemplate; is that right?
A. I -- I wouldn't recommend taking that sort of an action. I can't -- I -- it's hard for me to give an opinion about what's okay to contemplate or not. The only thing I can think about is in terms of what actually happened, what actions were actually taken. That doesn't sound like something that I would recommend.
Q. It would be unethical to even contemplate taking such an action on a product that is reported to kill over 400,000 people a year; wouldn't it, sir?
MR. BERNICK: Again, Your Honor, that's argumentative.
THE COURT: Well it is a little argumentative at this point.
BY MR. CIRESI:
Q. Sir, if the government shouldn't do it, you would agree the companies shouldn't contemplate that; wouldn't you?
MR. BERNICK: Same question. Again it's argumentative.
THE COURT: No, you may answer that.
A. I can't -- I can't give an opinion on what the companies should or should not contemplate.
Q. All right.
A. And I'd have to be an ethicist or a philosopher to give an opinion on what's ethical to think about or not think about. To me what's important is what actually happened and what actually -- what actions actually occurred. All kinds of things have been thought about by all kinds of people, and this really represents to me thinking out loud, only it's on paper. And to me what's important is what actually happened, which is what I know happened, which is we did release the list, we released it to the public, and a huge amount of testing and assessment has been done on the acceptability of these ingredients.
*39 Q. You would have to be an ethicist or philosopher to say whether or not that contemplated action is ethical; is that what you're saying?
A. Well what's the standards of -- of ethics? Tell me what - - what the test is for something that's ethical or not ethical.
Q. Well do you have an ethicist on staff at Brown & Williamson?
A. No.
Q. Do you have a philosopher on staff at Brown & Williamson?
A. I don't know.
Q. So you sort of have to rely on the ethics of the people who are doing the work; don't you, sir?
A. Look, all I'm saying is what --
I know what we did. I can't really speak to the things that were being contemplated or discussed in this document.
Q. Can you answer --
A. I wasn't there.
Q. Can you answer my question?
You have to rely on the ethics of the people that are there; don't you?
A. Well I think we have to rely on the ethics of the people who actually deal with these issues. These people were discussing these issues, but these aren't the people who actually dealt with the issue and managed the issue.
Q. And you have to rely on the ethics of management; don't you?
A. Yes. To some degree, yes.
Q. Management has to set the ethical standard that will be followed by the company; doesn't it?
A. Well I mean everybody is involved in -- in ethics, but management certainly is managing the company.
Q. And management should not abide by or tolerate unethical conduct by its employees; should it?
A. If they're --
If employees are engaged in unethical conduct, I would hope management would not tolerate that.
Q. And management itself should not engage in unethical conduct; should it?
A. Unethical conduct as opposed to thought, yes, absolutely. I don't think people should engage in unethical activities.
Q. Now do you know what information they had at the table?
A. No. I wasn't there.
Q. So you don't know what information they had to state that it was a probability that four or five of the substances were a problem; do you?
A. Well it says this is an assumption that was stated as a probability at the table. I don't know what information they had or what they based this assumption upon.
Q. No, he said that Northrip made this assumption because it had been stated as a probability at the table. That's what it says; isn't it, sir?
A. I have no idea what they're basing that on.
Q. If you'd go on to the next page, can you go to the paragraph toward the bottom where it says "There appears to be some confusion...?"
A. Yes, I see it.
Q. Well let's -- let's go up a little bit before that. The paragraph right before that, do you see where it says, "Is it feasible...?"
A. I don't see that.
Oh, I see it, yeah.
Q. All right. "Is it feasible to expect each of the companies to do review and testing of its additives and remove problematical additives from usage and from the list? If so, then the risk of adverse finding by industry toxicologists is substantially reduced. If not, then the Northrip scheme to prevent adversity subsequent to disclosure is not available.
*40 "There appears to be some confusion that the recommendation of an independent industry panel of toxicologists is primarily for the purpose of developing information about our additives. Of course, this is not the case. The industry panel is a formal mechanism for self-policing as part of an industry strategy to gain HHS sanction." See that?
A. Yes. That's what the document says.
Q. So the industry together comes up with strategies in concert with respect to smoking-and-health issues; doesn't it?
A. Well this document seems to reflect discussions of people weighing various options on a particular matter; in this case, what to do with potential legislation coming up concerning ingredient disclosure.
Q. And sir, when you started with Brown & Williamson and you had that orientation at Shook, Hardy & Bacon almost immediately after you started, you were told industry positions; weren't you?
A. Well I was told what cases had been tried and what -- what -- the positions that were taken by both the plaintiffs and the defense in those cases.
Q. You were told industry positions on smoking-and-health issues such as addiction and causation; weren't you?
A. I think I just answered your question.
Q. No, you didn't, sir.
You were told industry positions with respect to addiction and causation; weren't you?
A. I -- I was given a historical review of a number of cases that had come up, litigation, the issues and the theories that various plaintiffs were focusing on. Because they all focus on different theories -- not all of them. But they're different, the kind of issues that were raised and the lines of attack by plaintiffs and the kind of defenses that were being -- that were being used by the defense. That --
Q. When we saw your notes with regard to addiction, it said "Industry Position." Didn't talk about any individual case; did it?
A. Well that's my recollection of the meeting. I mean I --
The notes may not be an exact reflection of everything we talked about. It was a shorthand. I was jotting notes as I was being presented information.
Q. The industry has stood in concert in its positions with respect to causation and addiction; hasn't it?
A. I don't know what you mean by "stood in concert" really.
Q. Together.
A. Well I -- I don't believe that's the case. I think various views have been expressed.
Q. Ah, the very view that has been expressed is by little Liggett, who gives warnings beyond what's required; isn't that right, sir?
A. That's one.
Q. Yeah. And they say smoking is addictive; don't they?
A. I think --
I believe they have put a warning on their pack to that effect.
Q. Not prevented by the government; is it?
A. Apparently not. I don't know the legalities of it though.
Q. Yeah. Do you remember earlier in your testimony this morning you said, well, I may be wrong, but I think you can only do what the government says? Do you remember that?
*41 A. That was my understanding.
Q. And Liggett says that cigarette smoking causes disease; doesn't it?
A. I'm not familiar with the warnings that they have compared to the warnings that are on anybody else's packs.
Q. And those warnings have come into effect since 1994; haven't they, sir?
A. I believe so.
MR. CIRESI: Your Honor, that would be a good place to break.
THE COURT: All right. We'll recess, reconvene at 2:00 o'clock.
THE CLERK: Court stands in recess to reconvene at 2:00 o'clock.
(Recess taken.)
*1 TITLE: STATE OF MINNESOTA AND BLUE CROSS AND BLUE SHIELD OF MINNESOTA, PLAINTIFFS, V. PHILIP MORRIS, INC., ET. AL., DEFENDANTS.
TOPIC: TRIAL TRANSCRIPT
TRANSCRIPT OF PROCEEDINGS
DOCKET-NUMBER: C1-94-8565
VENUE: Minnesota District Court, Second Judicial District, Ramsey County.
YEAR: April 15, 1998
P.M. Session
JUDGE: Hon. Judge Kenneth J. Fitzpatrick, Chief Judge
THE CLERK: All rise. Ramsey County District Court is again in session.
(Jury enters the courtroom.)
THE CLERK: You may be seated.
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor.
Good afternoon, ladies and gentlemen.
(Collective "Good afternoon.")
BY MR. CIRESI:
Q. Good afternoon, doctor.
A. Good afternoon.
Q. Sir, when we recessed this morning, we were discussing Exhibit 26186, which was the memorandum from Mr. Wells regarding --