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 -- excuse me, 26199, which was the memorandum concerning the Committee of Counsel. Do you recall that?

A. Yes.

Q. Now when you were --

A. That's at --

Q. -- at RJR, you did eliminate some additives before the submission was presented to HHS; correct?

A. Well this was reviewed, and a decision was taken that some ingredients would be removed from our products.

Q. Prior to the first submission of the HHS list; correct?

A. Yes.

Q. And do you remember how many there were?

A. No.

Q. Does the number 32 refresh your recollection?

A. Sounds in the ballpark.

Q. Okay. And then on a second submission you removed another 33; correct?

A. That sounds like a --

Yeah, that sounds like it could be in the ballpark, yes. I don't have a specific recollection.

Q. Why don't you take a look to your right, I believe Exhibit 12867 is there. It's an ingredient program status update dated 7-18-86.

A. Yes.

Q. Your name is on it; correct?

A. Yes.

MR. CIRESI: We'd offer Exhibit 12867, Your Honor.

MR. BERNICK: No objection, Your Honor.

MR. CIRESI: Court will receive 12867.

BY MR. CIRESI:

Q. And if you turn to the fourth page, do you see the current status?

A. Yes.

Q. Do you remember I asked you if there were hundreds of ingredients?

A. Yes.

Q. Okay. And the number actually is 417; correct? Total non- tobacco ingredients?

A. 417?

Q. Yes. Do you see that on the third page, current status, total number of non-ingredient -- non-tobacco ingredients currently used?

A. Yes.

Q. Okay. And then 32 were removed from all products as of March 15th, 1986, prior to the first submission of the HHS list; correct?

A. Yes.

Q. And then 33 additional ingredients had been identified for removal prior to the second submission; correct?

*2 A. Yes.

Q. And you're aware, are you not, that Brown & Williamson also removed a number of ingredients from its list and its products prior to submission to the HHS?

A. I wasn't with Brown & Williamson at that time, so I don't know what they did at that time.

Q. All right. And you have not gone back to ascertain how many they removed; have you?

A. No.

Q. Now, sir, with regard to additives in filters and cigarette papers, that's not provided to HHS; is it?

A. Actually HHS has requested information about that and we've provided that. It's not required by law, but they've informally requested it and we've given that information to them.

Q. When was that, sir?

A. A submission was made within the last year, about -- within a year. I'm not sure exactly when.

Q. Prior to 1994 nothing had been provided to HHS with regard to additives in filters or cigarette paper; correct?

A. Well we've given them what they've asked us when they asked for it.

Q. That wasn't my question. Did you --

Did you misunderstand my question?

A. No, I didn't.

Q. All right. Well let me repeat it.

Prior to 1994 nothing had been provided to HHS with regard to additives in filters and cigarette paper; correct?

A. Was that your question you mean?

Q. That was my question.

A. Yes. That was the question.

Q. And is the answer that's right?

A. To my knowledge, we didn't provide any information about filters and paper ingredients.

Q. Thank you.

Now can you direct your attention to Exhibit 26186, which is another Wells memorandum which is about three years after the Committee of Counsel meeting.

A. Which volume is --

Q. 26186 would be in volume number two.

Do you have it, sir?

A. Yes, I do.

Q. Okay. And that's from Mr. Wells to Mr. Sachs with a carbon copy to Mr. Pepples?

A. Yes, it is.

Q. Dated January 12th, 1984; correct?

A. Yes, it is.

MR. CIRESI: Your Honor, we would offer Exhibit 26186.

MR. BERNICK: We have the objections previously raised in briefing before the court, Your Honor.

THE COURT: Court will receive 26186.

BY MR. CIRESI:

Q. Now again along the left-hand margin we see the legend privileged and confidential, produced as required by the court's March 7th, 1998 order; correct?

A. Yes.

Q. All right. Have you seen this document before?

A. Yes, I have.

Q. When's the first time you saw it?

A. Within the last two days. It's among the set that you sent over as indicated to be used in my cross-examination. That's - - that's the time that I looked at it, for that reason.

Q. So it was after you returned to Minnesota on Monday; correct?

A. I believe so.

Q. Now in the first paragraph you'll see that Mr. Wells is stating that "On January 10 we discussed with Lance and Gil their intention to ask Southampton to conduct experiments which would utilize tracers to determine whether flavoring substances transfer to smoke or pyrolyze." Do you see that?

*3 A. Yes, I do.

Q. It says that "The literature does not contain reports of experiments of this type." Do you see that?

A. Yes, I do.

Q. "Other work indicates that the experiments would show that most and perhaps all of the substances would transfer." Do you see that?

A. Yes.

Q. And in the second paragraph Mr. Wells is stating that in his view "it probably is appropriate for B&W to conduct the experiments described because of HHS' interest in the pyrolysis of cigarette additives." Correct?

A. Yes.

Q. Now this is about three years after that Committee of Counsel meeting where they were trying to figure out which type of approach to take with the government; correct?

A. Yes.

Q. And if you go down to the next paragraph --

Well let's stay in that paragraph. Do you see the next sentence says, "B&W could maintain the position that the experiments and their results have no proven health consequences to humans." Do you see that?

A. Yes.

Q. Then in the next paragraph he states, "We questioned whether the experiments should be conducted by Southampton but reached no agreement with Lance and Gil."

Now Gil would be Gil Esterle; correct?

A. Yes, I assume so.

Q. And he was in R&D at that time; correct?

A. I believe so.

Q. And do you know who Lance is?

A. Yes.

Q. And who's that, sir?

A. Lance Reynolds I assume.

Q. And Lance Reynolds was what position?

A. In '84 I don't know. He was involved in product development at some point, but I don't know, you know, what his role or title was at this point.

Q. He was also in research and development; was he not?

A. Yes. Yes.

Q. "In my view, the question merits further consideration. The first step is to look at the objective. The larger objective is to develop evidence which can be useful to B&W in the public debate in the U.S. on the question of cigarette flavorings." Correct?

A. Yes.

Q. So that Mr. Wells at this point was seeking to have B&W be able to have some evidence in its files to support its contention that cigarette additives did not pose any risk of harm to consumers; correct?

A. Well B&W already had information in its files. I think he's seeking, maybe, perhaps more information than we already had.

Q. And what he tells them is that when you do these tests, just avoid any mention of health or biologic consequences; doesn't he?

A. Where does it say that?

Q. Why don't you turn to the next page, last sentence, last paragraph. "If R&D elects to perform the experiments at Southampton, R&D should ask Southampton to avoid any mention of health or biologic consequences in the report or in any other documentation pertaining to the experiments." Isn't that what he says?

A. Again, this -- this reflects, I believe, his concern about such statements potentially being used against us. I -- I don't know exactly what he meant, but I do know something about this. I know that Southampton did in fact do that research, they did do transfer rate studies on ingredients and in fact has published that research.

*4 Q. Excuse me, sir. Did you misunderstand my question?

A. No, I didn't.

Q. You didn't.

A. No.

Q. Well let me -- let me restate it for you.

Q. Last sentence, last paragraph, "If R&D elects to perform the experiments at Southampton, R&D should ask Southampton to avoid any mention of health or biologic consequences in the report or in any other documentation pertaining to the experiments." Isn't that what he says?

A. That's what the document says. You read that correctly, sir.

Q. And that's Mr. Wells telling Mr. Sachs that; correct?

A. Well this is a document that goes to -- from Mr. Wells to Mr. Sachs.

Q. And who is Mr. Sachs?

A. I don't recall his title and role at this time.

Q. He was in research and development; wasn't he?

A. I have no reason to dispute that.

Q. Now when people communicate at Brown & Williamson, they communicate in some instances by memoranda; don't they?

A. Yes, obviously.

Q. And when they do communicate by memoranda, they intend to be truthful in what they're saying to the other person that they're sending the memoranda to; correct?

A. I would hope so.

Q. They don't lie to them; do they?

A. I hope not.

Q. Okay. So in this case Mr. Wells was saying if we elect to perform the experiments at Southampton, R&D should ask Southampton to avoid any mention of health or biologic consequences in the report or in any other documentation pertaining to the experiments. Correct?

A. Yes. I don't see that as -- as being -- as asking someone to lie. It seems to me what he's asking is report the chemistry and the analytical findings, but don't attach any interpretation to it. That would be an entirely different exercise, to report data as opposed to provide interpretation.

But I'm only guessing at this point. I really don't know what Mr. Wells said -- or meant, but I can tell you this work was done and was published and made available to the public.

Q. And we don't know how it was slanted or what the underlying documentation was or anything else; do we, sir?

A. Well the data is the data. It speaks for itself. It was published in a peer-reviewed journal and I would hope that the peer-review process would have taken into account any over- or under- interpretation of what the numbers of any of the results generated.

Q. Did the referees --

Did the reviewers of the peer-reviewed literature get all the underlying data and information from B&W and the drafts to see if something was slanted or not?

A. If they requested it, they would have received it.

Q. They never get that type of information; do they, sir?

A. Well I don't know. I think different reviewers raise different issues and ask for different things. That's part of what the process is about. It can happen. Peer reviewers may ask for underlying data before they'll pass on the paper, and I don't know if they did that in this case or not.

Q. Right. You have no idea whether the referee or the peer reviewers got any of the underlying information; do you?

*5 A. I don't know. I've got no basis one way or the other to know about it.

Q. You have no idea how or if the information was slanted; do you?

A. I never know that about any paper that I read in the scientific literature.

Q. What we do know is that Mr. Wells told Mr. Sachs that there should be an avoidance of any mention of health or biologic consequences in the report or in any other documentation pertaining to the experiments; correct?

A. I see what's written in this document.

Q. And other documentation that pertains to experiments includes lab notebooks; doesn't it?

A. That could be related.

Q. Now as of 1984 the industry hadn't actually tested the cigarettes that had been marketed with respect to its ingredients; correct?

A. Well actually a lot of work had been done, both within the industry and outside the industry.

Q. Can you direct your attention to Exhibit 21504. That would be in the same book, sir.

A. I'm not sure if it is in the same book.

Q. I'm sorry. Were you in volume two?

A. Yes.

Q. It's right towards the front.

A. It's in volume two?

Q. Yes.

A. 21504?

Q. Towards the front.

A. Oh, yes, okay.

Q. About the fourth one -- fourth or fifth one in. Do you have it?

A. Yes.

Q. That's a memorandum by Mr. McDermott. Do you know Mr. McDermott?

A. The name is familiar.

Q. He's a lawyer at Jones Day?

A. Yes. I've met him.

Q. You've met him; haven't you?

A. I believe so.

Q. Mr. Weber's partner?

A. Pardon me?

Q. It's Mr. Weber's partner.

A. I don't know who Mr. Weber is.

Q. Okay. Do you know Mr. Edwards?

A. Yes.

Q. Okay. And you know Mr. Maynard Thomson?

A. Yes.

Q. Have you worked with these people before?

A. Yes, I have.

Q. All right. Now this is a memo, and I'll represent to you -- and you can confirm this if you look through the document -- that it was written sometime after 1984. Can you accept that, sir?

A. Yes.

Q. Have you seen this document before?

A. I've --

I believe so, but it's hard to tell because this copy seems to have a lot of deletions or redactions.

THE COURT: Counsel, will you approach the bench, please.
 

(Discussion between Mr. Bernick and the witness.)

BY MR. CIRESI:

Q. Have you reviewed the document before, sir?

A. Yes.

Q. When did you first review it?

A. I believe I -- I saw this when I was at R. J. Reynolds, but I've also recently reviewed it in the last couple of days.

Q. You saw the document when you were at R. J. Reynolds; is that correct?

A. I believe so. Because when I saw it recently, it's -- I seem to have recognized it. I remember something about it.

Q. Now can you direct your attention to the page which bears the Bates numbers, last three, 123.

A. These are in handwriting, handwritten Bates numbers?

Q. That's correct.

A. Yes.

Q. "The ingredients issue potentially poses significant issues which go to the very heart of general causation. Both the industry and its critics have conducted the bulk of their research using "Kentucky Reference Cigarettes."

*6 Do you know what a Kentucky Reference Cigarette is?

A. Yes.

Q. What is it?

A. It's a --

Well it's a reference cigarette that has a standard blend, standard design, to be used as a control in experiments that are used to compare effects of various cigarettes, so it serves as sort of the control or the anchor against which all other comparisons are made.

Q. Kentucky Reference Cigarettes are not sold commercially; correct?

A. No.

Q. No, they're not?

A. No, they're not.

Q. "These cigarettes are supplied by the members of the industry. Although we have not yet obtained the precise formula for all of the Kentucky Reference Cigarettes, our present understanding is that few casing materials and no top dressings are added." Correct?

A. That's what the document says, yes.

Q. And there is more than one formula for Kentucky Reference Cigarettes; aren't there?

A. Well there are -- are several design features to achieve -- essentially to span the range of cigarettes that are typically found in the U.S. market. That's what they're designed to do, is -- is mimic U.S. cigarettes. So --

Q. So they don't --

A. So there's a range of them.

Q. Excuse me, go ahead.

A. So there's a range of them, low tar, high tar, filtered, non-filtered, that sort of thing.

Q. "The cigarettes are made to vary by tar and nicotine content, so it is probable that they contain the same residual amounts of processing agents that are found in commercial cigarettes." Correct?

A. That's what the document says.

Q. And that would be your understanding; correct?

A. It depends on what -- what sort of materials were used, like what sort of reconstituted tobacco, what sort of expanded tobacco, what process was used. But I -- I think that since these were designed to be representative of commercial cigarettes in the U.S. market, I would expect that they are.

Q. They run the range; correct, sir?

A. Pardon?

Q. They run the range, but they do not have the top dressings and few casing materials; correct?

A. They have --

They have two of the major ingredients that are used in cigarettes as far as total amount of ingredient added. They have two ingredients.

Q. I didn't ask you which was the most amount. What I said was they have few of the top casings.

A. Well --

Q. Or top dressings.

A. -- you mean top dressings?

Q. Few casing materials; is that correct?

A. They don't contain top dressings. They do contain casing materials.

Q. And few of them; correct?

A. Well do you mean few from a number --

Q. Yes.

A. -- or from the total or mass amount?

Q. Few from a number, sir.

A. From a number, yes.

Q. "If ingredients are claimed to be the 'cause' of disease, then both the industry and its critics have tested the wrong product, and much of the prior research is flawed. Thus, both sides would be hard pressed to rely on that research to support their respective positions on general causation." Is that right?

*7 A. Well you read that correctly.

Q. Okay. And if you go over to page 8127.

Actually, before we get there, maybe we could back up, doctor, two pages, which starts with the words "The industry has dropped...." Do you have that?

A. Yes.

Q. Okay. "The industry has dropped a number of ingredients over the years. Recently, a number of ingredients were dropped by the industry just prior to submitting the first annual list of ingredients to HHS, as required by the federal statute enacted in 1984." Correct?

A. Yes, I see that.

Q. And that's what Reynolds did when you were there; correct?

A. Reynolds did simplify some of its formulations prior to submitting its composite list to the HHS.

Q. And what Mr. McDermott and the others report here is as follows. "Although a few ingredients were dropped in earlier years because of the allegations concerning adverse health effects in the use of those substances for applications different from cigarettes (for example, coumarin), most were dropped either because of changes in formulations or because of feared 'public relations' problems." Correct?

A. That's what it says, yes.

Q. And if you go on to page seven then. Find it?

A. Well I'm following it on the screen here.

Q. All right. Down at the footnote it says, "A corporate midconduct test premised upon ingredients would consist of claims of testing which was both belated and inadequate, failure to make adequate inquiry into the composition of flavors produced by outside flavor houses" --

Now let me stop there. Do you know how many of the flavors incorporated in RJR cigarettes when you were there were from outside flavorhouses?

A. I believe most of them. I don't know by number.

Q. The vast majority; isn't that right, sir?

A. I don't know if it's the vast majority. I think most of them were in fact formulations from flavorhouses.

Q. Okay. Let's go back to the document then.

-- "and the failure to remove ingredients known or shown to be harmful. There are memoranda in the RJRT files which reflect a desire by R&D personnel to test ingredients and which document the policies which the company has followed. A recent memo by a Lorillard employee (Alex Spears) to Dr. Hayes at RJRT suggests that in 1984 the Committee of Counsel thwarted the industry scientists' desires to assure the safety of the product by testing ingredients adequately." Do you see that?

A. Yes, I see that.

Q. Now you know Dr. Spears?

A. Dr. Spears? Yes.

Q. He is now the CEO of Lorillard?

A. Yes.

Q. And at one point he was in charge of R&D for Lorillard?

A. I believe so.

Q. Can you go over to page 12 of this document.

A. Twelve. Ah --

Q. Well I'm sorry, 132. It's got 12 at the top, and the last three Bates numbers 132.

A. All right.

Q. And at the bottom there, you see the paragraph (c)?

A. Yes.

Q. "RJR has monitored the scientific literature concerning ingredients. Many ingredients have not been tested either as pyrolytes or through the inhalation route." Do you see that?

*8 A. Yes, I see that.

Q. And it also says that, as we see above, that RJRT has monitored the scientific literature though; correct?

A. Yes.

Q. Now that's what you do. You monitor the scientific literature; don't you, sir?

A. I do a lot of things, and that's among the things that I do.

Q. And can you direct your attention to Exhibit 26213. It's in the same volume, sir. It's toward the back.

A. Oh, okay.

Q. Do you have it?

A. I'm getting there.

Okay.

Q. Do you have it, sir?

A. Yes.

Q. All right. This is a BATCo document?

A. Yes.

Q. Dated January 26, 1993, from Mr. G. A. Read to Norman Davis; correct?

A. Yes.

Q. And that's Graham Read?

A. Yes.

Q. And you know Mr. Read?

A. Yes.

Q. Okay. And what is his position at BATCo?

A. He is the vice-president of research and development for BATCo.

Q. Okay. And Mr. Davis, what is his position?

A. I'm not sure of his exact title. I think he's a senior executive over operations in Europe.

Q. All right.

MR. CIRESI: Your Honor, we'd offer Exhibit 26213.

MR. BERNICK: Same objections as previously noted in our briefing, Your Honor.

THE COURT: Court will receive 26213.

BY MR. CIRESI:

Q. Again, sir, do we see that this is a January 26, 1993 memorandum from Mr. Read to Mr. Davis? Correct?

A. Yes.

Q. And on the left-hand side we have the legend that this is privileged and confidential, claimed to be, produced as required by the court's March 7th, --

A. Yes.

Q. -- 1998 order?

A. Yes.

Q. When is the first time you reviewed this document?

A. Within the last couple of days, just like all the other documents you sent over.

Q. Now this document, when you reviewed it, you saw that it chronicled what the various companies were doing as of 1993 with regard to additives; correct?

A. Yes.

Q. And this is after legislation was passed; correct?

A. Yes.

Q. And you were referenced in this.

A. Yes.

Q. And you're referenced as fulfilling a paper- review role; correct?

A. Well that's what the document says. That's -- I don't think that's an adequate characterization of what I do.

Q. I'm just asking what the document says. If we can go over to the second page -- well let --

Let's start at the bottom of the first. "In sensitive discussions...," do you see that, the last paragraph?

A. Yes.

Q. "In sensitive discussions with Philip Morris" --

That's PM; correct?

A. Yes.

Q. -- "they indicated that depending on the relative importance of the additive they are prepared to conduct a range of in vitro toxicological and biological tests as well as acute and chronic animal testing."

A. Yes.

Q. "The position taken by Reynolds is a matter of public record." Correct?

A. Yes.

Q. Okay. And Reynolds' position --

A. That's what it says.

Q. Okay. And Reynolds' position is basically the same as of 1993; is it not?

*9 A. The same as what? Compared to what?

Q. As Philip Morris.

A. I don't know.

Q. Okay. When we're talking about a range of in vitro toxicological and biological tests as well as acute and chronic animal testing, you're talking about the type of tests such as an Ames test; correct?

A. Yes.

Q. The one that you testified on direct gave you inconsistent direction; isn't that correct?

A. Well inconsistent direction insofar as developing a safer cigarette is concerned.

Q. And biological tests would be animal testing; correct?

A. Yes.

Q. And you also said that those don't give you consistent direction as far as developing a safer cigarette. Is that what you said?

A. Well in --

And what I said was that no one in the scientific community or public health community has been able to point to any test and tell us that if we can make a cigarette that does not produce a response from that test, then that will mean the cigarette is safe. That's what I meant by no consistent direction from these tests.

Q. But you didn't mean to imply by that that these are not a piece of the puzzle that should be done and can be done in order to determine and learn scientific information.

A. No, not at all.

Q. And scientists look to a variety of tests and studies to put together to arrive at opinions and conclusions; don't they?

A. Yes.

Q. And you can't expect one individual test to be the panacea for everything; can you?

A. Not in toxicology. Perhaps -- perhaps in other areas.

Q. And if you go on to the next page then, "B&W fits into this U.S. scenario by undertaking toxicological data review and occasionally takes third party expert opinion whereas it has no biological and toxicological testing of its own and appears to take comfort from the fact that it is party to the U.S. industry list. This 'paper review' role is fulfilled by Scott Appleton an ex- Reynolds employee who joined two years ago and this broadly constitutes B&W's AMGP function." Correct?

A. That's what the document says. But we rely a lot on work actually that BATCo does for us, so apparently Mr. Read is drawing a distinction between what BATCo provides us and what's done in our own laboratories.

Q. And sir --

A. And also we have access to a lot of other toxicological information that's shared within the industry and is published in the open published literature.

Q. Sir, what I read is what's reported in this letter by the vice-president; correct?

A. Yes, you read that letter correctly.

Q. And AMGP, do you know what that stands for?

A. Yes.

Q. What does it stand for?

A. Additives and Materials Guidance Panel.

Q. And the Additives and Materials Guidance Panel, is that HHS?

A. No.

Q. Where is that, sir?

A. That's an internal advisory group within BATCo.

Q. Now you referenced in your direct testimony American; correct?

A. Yes.

Q. Now did you receive in-house American documents that you could review to determine what their biological testing was, if any?

*10 A. I have reviewed documents, yes, from American Tobacco.

Q. How many documents were provided to you from American Tobacco?

A. I -- I don't know the number. It seems like about 20 or 30, maybe 40 or 50.

Q. When?

A. Within the last week or two.

Q. Did you keep a list of those documents?

A. Well we've discussed them. These are -- these are documents that I talked about in my testimony.

Q. Sir, on your direct testimony you didn't talk about anywhere near 50 documents. Did you --

Did you keep a list of 50 documents generated by American Tobacco Company over the years with regard to testing?

A. Well I don't know if we're talking about the same set, but my attorney put the stack right here in the corner of the desk.

Q. Oh, you're talking about the Medical College of Virginia documents. Is that the ones?

A. Yes.

Q. Where he went through and read it and they were iterations where they'd repeat what had been done before and then there was a subsequent one and it had additional information?

A. Well it was a stack of reports that American had received over the years from the Medical College of Virginia.

Q. All right. Other than that, did you ever see any in-house American biological testing data?

A. No, I haven't.

Q. Not a single sheet; have you?

A. No in-house testing, no.

Q. Now can you turn to Exhibit 21951.

A. Also in volume two?

Q. Yes. It's toward the beginning, sir.

This is a memorandum consisting of 56 pages from Janet Brown of Chadbourne & Parke, a law firm. Have you reviewed this before?

A. Yes, I have.

Q. Okay. When's the first time you reviewed this?

A. Probably about two weeks ago.

Q. How did you have occasion to review this?

A. My attorneys gave it to me.

Q. And this is a "CONFIDENTIAL MEMORANDUM TO MR. HETSKO RE CONFERENCE WITH MESSRS. HARLAN AND HARLOW;" correct?

A. Yes.

Q. Dated August 25th, 1965; correct?

A. Yes.

Q. Now do you remember when I asked you earlier, I think it was yesterday, who Mr. Hetsko was and you said you didn't know?

A. No, I think I said I recall the name from somewhere, and then I think I remembered where I recalled the name from.

Q. Okay. So two weeks ago you had seen this document, and did you learn that he was the general counsel at that time of American?

A. I believe -- I believe so.

Q. And Mr. Harlow was the research director at American?

A. I -- I believe so, yes.

Q. And Mr. Harlan worked in the research department?

A. Yes.

Q. And this referred to a conference which began at about 9:30 and concluded at 4:30 p.m. on August 25th, 1965?

A. Yes.

Q. And the conference opened with the explanation by Janet Brown that she was there at the behest of Mr. Hetsko; correct?

A. Yes.

Q. And that the purpose of the visit was to explore with them the background, purposes, and proposed modus operandi of the postulated biological program which Hetsko had just recently learned about; correct?

*11 A. Yes.

Q. And the second purpose was to review some of the most fundamental programs -- problems a program of the nature indicated in Mr. Harlow's memorandum to Mr. Hetsko would pose for the company in its public, medical, and legal positions in the health controversy?

A. Yes. I mean yes, you've read that correctly.

Q. All right. And then do you see at the -- at the bottom of that page, "At the conclusion of the conference Harlow stated the opinion that the program contemplated would make the Company's past and current position in the health field untenable?" Do you see that?

A. Yes, you've read that correctly.

Q. Now American's position as of 1965, and had been in the past, was that smoking didn't cause any disease; correct?

A. I don't --

I'm not familiar with American Tobacco's position or when --

Especially in this period of time, I just don't know what their position was.

Q. Well you know that's their position today; don't you?

A. Well that's not --

I don't know what their position is today.

Q. You don't know what American's position is today?

A. No, not -- not exactly. I don't believe it's smoking does not cause disease, but I don't really know.

Q. Do you think American says that smoking causes disease?

A. I -- I don't know. I've not been in a position to talk to people at American.

Q. Okay. Well you testified here on behalf of American; didn't you?

A. On that -- on these -- this research program at the Medical College of Virginia, yes.

Q. "Harlow ultimately stated that while the program was important and he wanted to do -- very much to do it, he would certainly not want to do anything that 'has an impact on the Company's position or if it makes that position any less sound than it now is."' Do you see that?

A. Yes, I do.

Q. And if you turn, sir, to page seven -- and that's seven at the -- on Ms. Brown's numbering system. Do you have it?

A. Yes.

Q. It's the Bates number 867.

A. Yes.

Q. All right. And this is the "Genesis of the Proposed 'Biological' Research Program;" correct?

A. That's what it says, yes.

Q. All right. "Two prime motives engendered the move to institute a Company biological research program. One was deep dissatisfaction with the conduct of experimental work conducted by independents in this area" --

Let me reread it. "One was deep dissatisfaction with the conduct of experimental work by independents in this area." Correct?

A. That's what it says, yes.

Q. And "The other was the need for commercial security in the development of new products." Correct?

A. That's what it says, yes.

Q. Now the deep dissatisfaction by independents referred to the Medical College of Virginia; didn't it?

A. It referred to specific types of work that they were doing, not the overall program. But from my review of this document, it -- it specifically addressed certain analyses that they were conducting in which these people seemed to have felt they had greater expertise, like nicotine levels in tobacco and that sort of thing.

*12 Q. Did you go back and get the underlying documents to determine what it specifically was?

A. No, I think I just testified it's based on the information that's in this document, based on my review of this document.

Q. Well let's take a look at what they say about it.

"While MCV research has been under the general direction of Haag, and then Larson, neither man has in recent years done the research himself." See that?

A. Yes.

Q. How Haag and Larson are the authors of a compendium of research regarding smoking and health; correct?

A. Yes, and the information that came from that was a direct result of this program sponsored by American Tobacco at the Medical College of Virginia that included a big project to assemble all the smoking-and-health literature and publish it all to make it available to the public, and that was part of what this project and program sponsored.

Q. Well let's go on and see --

That wasn't my question again. My question was pretty simple. Again, if you don't understand a question that I ask you, please tell me. All right?

A. Okay. I -- I understood your question.

Q. "Larson is now so busy that he has little time to devote to anything but the broadest supervision of experimental work. MCV work is done by graduate students - volunteers, in effect, of widely varying competence and abilities, who lack, more often than not, any overriding personal interest in maintaining the highest standards - i.e. those the Company laboratory would maintain.

"There is strong feeling, thus, that experimental work which has had to be farmed out to others lacks the scientific standards the Company and the nature of the work demands. Obviously, when the devising, execution, and supervision of the work is sloppy, the results are of questionable scientific meaning."

You would agree with that; wouldn't you?

A. If in fact this is all a true characterization. If work was sloppy, yeah, that would raise questions about its meaning.

Q. Well and it would be fair to state, Mr. Appleton, that Dr. Harlow and Dr. Harlan back in 1965 would know much better about what was going on at that time in deciding whether or not to bring research in-house than you do today about what was going on.

A. I'm not suggesting -- I'm not suggesting I know more. I'm just saying I wasn't there, I don't know what the circumstances were around this document and what -- what exactly the discussions were or what -- what they're basing their statements on. I just don't know.

Q. Well you'll recall from reading it that Mr. Harlow set out some examples just to highlight what was going on; didn't he?

A. Yes.

Q. He cited as an example "some of the edema experiments in which smoke was passed over the membrane of a rabbit's eye."

A. Yes.

Q. "The technique of smoke administration was so imperfect that it was not possible to tell either how much smoke each rabbit received or the degree of variation and treatment. The laboratory itself discovered this and had to develop a technique for measurement of smoke so applied.

*13 "Reasonably competent independent consultants, not simply graduate students, pose the same problems in matters of research concepts and techniques, whether development or execution. For example, Foster Snell's techniques for measuring nicotine (in connection with Carlton) were so imperfect that their technicians failed to find any nicotine at all in the first series of tests." Do you see that?

A. Yes. And what he's describing are the kind of problems that every laboratory has when they first develop a technique until the time it's -- it's perfected. This would happen in virtually any laboratory when they are first starting up a technique; they go through this sort of learning curve and learning stage. And apparently he's describing some of the issues they weren't covering.

Q. Over the years that they had uncovered.

"The laboratory had to reconstruct all their procedures (and, says Harlan, Company employees ran the tests in the company's laboratories. This is almost uniformly company experiment -- experience with independents. And Snell is one of the better consulting independents. In short, outside research caliber is not high, competence in problem analysis is dubious, and standards of technique development and execution have been far below the Company's own standards.

"Haag and Larson have long recognized these facts."

Do you know how long they recognized those facts, sir?

A. How long they had?

Q. Yes.

A. No.

Q. Was it five years?

A. I -- I don't know if the document indicates it. What -- the document does, though, is present recommendations and options of how to correct these situations or these problems that were identified by Harlow and Harlan.

Q. Sir, do you know how many years they had long recognized it?

A. No.

Q. Could have been 10 years as far as you know; correct?

A. I have no idea. I don't think the document says.

Q. And this document is in 1965; correct?

A. Yes, I think that's the timeframe.

Q. And the first document of the MCV that you showed us was in 1952; correct?

A. Well the research began in 1936.

Q. The document was in 1952; correct?

A. The document, but it also had reference to studies that were published in 1936 that resulted from the program, plus the -- that was the -- the published part. The original reports that I saw began in 1936, I believe.

Q. Well let's go on and see what Haag and Larson say. "In many discussions had with them on this score, they urged that the laboratory do its own work." So in other words, Haag and Larson were saying get it away from the MCV and take it over to your shop. Isn't that what they're saying?

A. That appears to be what they're saying, yes.

Q. "Recent (over the past few years) repeated discussions with Larson have again resulted in his strong recommendation that the Company undertake its own biological programs -- particularly in the growing field (scientific and commercial) of investigation of effects of smoke components on lung clearance mechanisms. Haag and Larson have long thought well of this work and have felt that the Company is most competent to do it properly." Correct?

*14 A. That's what the document says, yes.

Q. Now you know that the legal department killed the program suggested by Dr. Harlan; don't you?

A. From my reading --

MR. BERNICK: Objection to the characterization, it's argumentative, and it's not supported by the facts in that paper.

THE COURT: Do you want to rephrase the question, counsel?

MR. CIRESI: I'll rephrase it.

BY MR. CIRESI:

Q. You know that the program as suggested by Drs. Harlan and Harlow was not undertaken.

A. From my reading of this document, the issue is not to do research -- the question was not to do or not to do research. The legal department was fully supportive that biological research needed to be done. The only issue that was debated here, or it seems to me what was being debated is just where to do it. Should it be done in-house or should it be given to a well-renowned university that was well known in this area? And it seemed that for various legal reasons, and most of it stemmed from fear of what could happen in litigation, they felt it was most appropriate to have this research conducted by the Medical College of Virginia as -- as it had been done for 20 years prior. That -- that was -- they weren't saying let's not do research, they were -- they were only talking about where to do the research.

Q. Well let me ask the question again.

Ms. Brown and Mr. Hetsko, on behalf of the company, said that the research would not be done in-house; correct?

A. That -- they --

That seemed to be the recommendation for legal reasons. But the research was done. To me that's the important point.

Q. You've answered the question. You've answered the question. We'll get on to that.

And the reason that it was not done in-house is that they didn't want it ascribed to the company if it showed a causal relationship between smoking and health; correct?

A. From my recollection they give a lot of reasons, and I don't remember all of them. That may be among them.

Q. Well let's go to page 32.

Now by the way, is the Medical College of Virginia a recognized learned institution in your judgment?

A. For certain areas, yes. Like all universities they have strengths and weaknesses, but they're a good university.

Q. And Larson and Haag were saying they weren't competent to do this type of work and they should do it at the company; correct?

A. I don't know if that's what they were saying. I think they said if you want to do the research, we think you're perfectly capable of doing it, but I don't remember them saying we're incompetent.

Q. Well let me go back to page 10 of the document. "Haag and Larson have long thought well of this work and have felt that the Company is most competent to do it properly." Is that what they said?

A. Well it seems what they're saying is they thought they were doing a good job, but they think the company would do a good job as well.

Q. They thought the company was most competent at the present time to do it properly.

*15 A. But they're not saying they're incompetent, what you suggested.

Q. All right. Now let's go on to page 32. "When the Company asserts competence to conduct its own biological research into certain aspects of human health, it opens for jury evaluation the question whether it acted reasonably in not instituting biological research long before now. A substantial scientific literature extending back over many decades has asserted a great variety of pathological effects from the use of tobacco (See, for example, Haag, Larson & Silvette)." Those are the very same people; correct?

A. Yes.

Q. "A variety of cancers, pulmonary and circulatory diseases have long been claimed to be tobacco linked. Lung cancer, emphysema, heart and peripheral circulatory disease have already become subjects of suits.

"If the Company can now inform itself respecting biological effects of smoking, it will be argued that it could and should have done so in all these areas, years ago. Ample funds were at the Company's disposal."

You don't deny that; do you, sir?

A. No.

Q. "Researchers with M.D. degrees were available to devise, conduct and evaluate experiments on animals and man."

That could have been done; correct?

A. Yes.

Q. "Laboratory facilities for such work could easily have been provided."

You agree with that.

A. Yes.

Q. "What has been found by independent scientists over the years, it will be argued, could have been found long since by the manufacturer whose primary responsibility it was. The question will be raised, for jury resolution, whether a reasonably prudent manufacturer capable of conducting biological research would not have instituted biological testing programs in the 1920's, or the 1930's or the 1940's, eras in which, as evidenced by the Haag, Larson, Silvette book, red flags of warning respecting serious health questions were being raised in the scientific literature. It will be argued that, if such a program was not instituted earlier, it should at least have begun in 1950 to ' 53, with publication of the four retrospective studies showing association with lung and other cancers; or in 1953, with publication of the Wynder mouse- painting experiments, or in 1954, with the publication of the first Hammond- Horn report" --

Now in 1953 and 1954 was when Brown & Williamson, together with others in this industry, issued the Frank Statement; correct?

A. 1954, yes.

Q. Where they said that we believe the products we make are not injurious to health; correct?

A. That's what it says, yes.

Q. Where they said they accepted an interest in people's health as a basic responsibility, paramount to every other consideration in our business; correct?

A. That's what it says, yes.

Q. "Paramount" means number one; doesn't it, sir?

A. Well I would -- I would take it to mean that.

Q. And if we go back to what Janet Brown wrote in 1965 and pick up with that phrase, "or in 1957, with the publication of the Study Group report on Smoking and Health. Why were such programs not instituted, at least, in 1958, with publication of the final Hammond-Horn report, or in 1959, with the publication of the Surgeon -- by the Surgeon General of an official statement pronouncing a causal link between smoking and certain diseases, or in 1962, with publication of the report of the Royal College of Physicians, or, if not then, why not a year ago, with publication of the report of the Surgeon General's Advisory Committee.

*16 "Instituting a biological program today will be argued to be an implied admission that the Company believes that it has not in the past been doing all it could and should have been doing to find the scientific facts respecting tobacco use and health."

Now sir, do you know how many studies since 1954, epidemiological studies conducted by varying investigators under varying conditions and protocols in various parts of this country, taking into account all kinds of confounding variables, have shown that cigarette smoking causes disease?

A. I don't know the exact number of epidemiological studies that have been conducted. It's been -- it's been a lot. Many have shown an association between smoking and various diseases. And it depends, you'll have to talk about prospective or retrospective studies. But there have been a number.

Q. Thousands?

A. At least about --

I don't know about a thousand. Probably more -- probably more in the range of a hundred or so.

Q. A hundred studies --

A. Epidemiological studies?

Q. -- in 40 years?

A. Well they're very time consuming and difficult to conduct. I believe there's only been about a dozen prospective studies. I'm not sure of the exact number. It may be 50 to a hundred retrospective studies, but it hasn't been that many.

Q. "We can anticipate, too, that it will be argued as an implied admission that the Company accepts that smoking has been shown to be a cause of pulmonary and other disease. Why, otherwise, would it now institute such a program, reversing its fundamental policy as enunciated in litigation by Company officials?

"We cannot say that a jury might not conclude that, if the Company is competent to investigate some biological questions today, the Company could and should have been investigating some or even many such questions one, two, five, ten, or many years ago."

Now doctor, it's true, is it not, that in 1958 the vast majority of scientists in this country felt that smoking caused lung cancer?

A. In that --

Well that time period, I would say that there were many scientists who did but many scientists who still weren't -- weren't quite sure. It -- it probably was a majority, but I've got no basis to -- I've not -- I've not done a survey of it. I just know I've reviewed the literature at that time, I've seen views expressed where people questioned the association, and I've seen many views where people say we absolutely think that association is rock solid. I think it was an evolving time period.

Q. There's people --

There's people today that belong to the Flat Earth Society; aren't there?

A. I don't know.

Q. Can you direct your attention to Exhibit 11028.

A. What binder is that?

Q. Binder one. I'm sorry.

Now do you recall, doctor, in your testimony on direct, you were talking about the constituent compounds of tobacco and what may cause disease and what not, and you said that we don't know how to modify cigarettes, it's been a long trial-and-error process?

*17 A. Yes.

Q. That there was no one carcinogen. Do you remember that?

A. Or group of substances I believe I said.

Q. That's nothing new. That was known in 1958 by the industry; wasn't it?

A. I think it may have been suspected by that time that it was unlikely that one constituent or group of constituents would be identified.

Q. Have you had an opportunity to review Exhibit 11028?

A. Yes.

Q. This is a BATCo document; correct?

A. I don't know if it's a BATCo document.

Q. Well take a look down at the document. "BAT Co Ltd - Minnesota Tobacco Litigation." Do you see that?

A. Well I don't know if that means it's a BATCo document or if it was a document generated from elsewhere that was simply found in BATCo's files and produced.

Q. Well it was produced by BATCo in this litigation. You understand that.

A. Well that I think I can assume from that stamp. I don't know if it means this was authored by BATCo people or not.

Q. Do you know if Mr. Felton worked for BATCo?

A. That -- that name is familiar.

Q. Okay. Do you know if Mr. Reid worked for BATCo?

A. I don't know who this Reid is, W. W. Reid.

Q. Okay. Was there a Mr. Reid who worked for BATCo?

A. Well we talked about Graham Read a moment ago, but this doesn't appear to be him.

Q. Do you know another Reid who worked for BATCo?

A. No.

Q. When was the first time you saw this document?

A. Again, this was probably within the last two weeks.

Q. And I'm not going to spend a lot of time, the jury has seen this, but you understand this was a trip report from three people who came over from England to the United States in 1958; correct?

A. Yes.

Q. And you understand that they visited a number of medical institutions, preeminent medical institutions in this country; correct?

A. I -- I believe, yeah, that's my recollection.

Q. Including Johns Hopkins in Baltimore, if you go to the itinerary.

A. Yes.

Q. Sloan-Kettering?

A. Yes.

Q. The National Cancer Institute?

A. Yes.

Q. They also visited the TIRC; correct?

A. Yes.

Q. And that would be the forerunner of the CTR; correct?

A. Yes.

Q. They visited with Dr. Little and Dr. Hockett; correct?

A. Yes.

Q. They visited with the Scientific Advisory Board of the TIRC?

A. Yes.

Q. They visited with American Tobacco Company?

A. Yes.

Q. They visited with Liggett & Myers?

A. Yes.

Q. They visited with Philip Morris?

A. Yes.

Q. They visited Yale; correct?

A. Yes.

Q. And if you turn to the next page, these individuals, including Mr. Felton from BATCo, found out in 1958 that "With one exception (H.S.N. Greene)," and he was from Yale, "the individuals whom we met believed that smoking causes lung cancer if by 'causation' we mean any chain of events which leads finally to lung cancer and which involves smoking as an indispensable link." Correct?

*18 A. That's what it says, yes.

Q. And they also were looking as to whether or not biological testing was being done; correct?

A. Yes, that's my recollection.

Q. And if you turn to the page which has the number at the top five.

A. Yes.

Q. You'll see the "ATTITUDE OF U.S. INDUSTRY TO BIOLOGICAL TESTING," that they discovered way back in 1958; correct? Do you see that title?

A. I don't -- I don't see where it --

I see the, yeah, the title, but I don't see where you were making reference to 1958 or the attitudes.

Q. Well --

A. Or the "ATTITUDE" is in the title. Yes.

Q. And the document is a 1958 document; correct, sir?

A. Yes.

Q. By the way, this is six years before the Surgeon General's opinion; correct?

A. Yes.

Q. Seven years before the Janet Brown document; correct?

A. Yes.

Q. "Liggett & Myers stayed out of TIRC originally because they doubted the sincerity of TIRC motives and believed that the organization was too unwieldy to work efficiently. They remain convinced that their misgivings were justified. In their opinion TIRC has done little if anything constructive, the constantly re-iterated 'not proven' statements in the face of mounting contrary evidence has thoroughly discredited TIRC and the Scientific Advisory Board of TIRC is supporting almost without exception projects which are not related directly to smoking and lung cancer."

Now you haven't reviewed the documents to determine what the companies were doing back at that time; have you?

A. No.

Q. And one of the issues that they were looking to was whether or not, back then, there was what they might call a super carcinogen; correct?

A. I think I remember reference to that in this document.

Q. And from your review, paper review of the literature, have you determined whether or not there was a theory back in the 1950s as to whether or not there was a super carcinogen that could be removed?

A. Well I mean I -- I've never seen --

The only time I've heard of super carcinogen is in this document. But I do recall from a review I have done that there was a belief early on that a particular constituent in smoke might be discovered, that the health effects associated with cigarette smoking may be attributed to one constituent or class of constituents, and the hope was, if removed, then it would make the cigarette safer. So that might be what they were referring to.

Q. All right. If you go to the preceding page, page four, do you see the title "RESULTS OF SCREENING TESTS ON SMOKE FRACTIONS?"

A. Yes.

Q. "One of the main objectives of the visit was to discover whether there were any experimental grounds for believing that cigarette smoke condensate contains only one principal carcinogen which is quantitatively responsible for a large proportion of the biological activity as measured by animal tests (a 'super carcinogen' in Wright's terminology)." Do you see that?

*19 A. Yes.

Q. Do you know who Wright is?

A. No.

Q. Now if one is doing --

The reason one does animal tests is you couldn't take a suspected carcinogenic substance and paint it on a human being; could you?

A. No.

Q. You have to use an animal to do that; don't you?

A. That's one of the tests available to us in our -- in our tool box, yes.

Q. All right. Because you can't experiment like that on human beings; correct?

A. No.

Q. And you expect when you do those things that you're going to do it in an accelerated fashion because of the life-span of the animal that you may be using; correct?

A. Well I'm not sure exactly what you mean. When -- you --

You certainly test over a full range of doses to uncover whatever toxicological manifestations there may be, so you push the dose as high as possible. But the life-span of an animal really isn't at issue because essentially whatever happens in the life- span of a rat, which might be two or three years, will also happen in the life-span of a human, which is more like 70 years. So I don't know what you mean by "accelerate." The tests are not accelerated, but the doses are pushed high.

Q. The doses are pushed high; correct, sir?

A. Right.

Q. Now if you turn to page nine, you'll find out what the scientists from BATCo and elsewhere found out when they came over in 1958. And actually if you go back to page eight, we'll start there, because that gives you an orientation, sir. You'll see that the "CONCLUSIONS" --

A. Yes.

Q. -- start at the bottom. Number one, "Although there remains some doubt as to the proportion of the total lung cancer mortality which can fairly be attributed to smoking, scientific opinion in U.S.A. does not now seriously doubt that the statistical correlation is real and reflects a cause and effect relationship." Do you see that?

A. Yes, I do.

Q. Then you go on to the next page and go to number three. Number three, "The direct carcinogenicity of smoke condensate to animal tissue, which is consistent with direct causation, is now fully confirmed but the evidence so far obtained makes it unlikely that this activity is due to any single 'super carcinogen' in smoke." Do you see that?

A. Yes.

Q. So that back in 1958, these scientists found by speaking to all of the individuals that they visited with that the belief at that time, based on scientific investigation, was that there was no super carcinogen; correct?

A. That's what they're expressing here.

Q. Now from 1958 up to 1994, Brown & Williamson has never ever told the public that a low tar cigarette is not safer than a full tar cigarette; has it?

A. I don't believe we've made any health-related claims associated with any of our cigarettes, one way or the other.

Q. And that would be true right to today; correct, sir?

A. That we don't make claims?

Q. That you have never said that a low tar cigarette is not safer than a full tar cigarette.

*20 A. We don't make health claims about our cigarettes, no.

Q. But you know that you have no evidence at all to support any contention that a low tar cigarette is safer than a full tar cigarette. You know that; don't you?

A. There is --

There's various types of evidence which -- and it's the same type of evidence that exists which indicates that cigarettes may be hazardous in the first place. There are some epidemiological studies that show that low tar cigarettes or filtered cigarettes compared to non-filtered cigarettes or high tar cigarettes result in a reduced incidence of lung cancer in certain people, and that's been reviewed and described in various epidemiological studies and been -- been described by the Surgeon General. But the problem is that the limitations of that evidence are similar to limitations of all the evidence. It's suggestive, it provides indications, but at the end of the day you can't say that means that cigarettes are safer.

Q. So is your answer to my question yes?

A. Can you repeat your question?

Q. Sure.

You know as of today that you have no evidence to suggest or state or confirm that a low tar cigarette is safer than a full tar cigarette.

A. Well my answer is that there is evidence that suggests reduced risks, but it isn't sufficient to make the conclusion that in fact those cigarettes are safer.

Q. And indeed, recent epidemiology has shown that even for lung cancer, there isn't any reduced risk; isn't that right?

A. I'm not familiar with recent studies that compare low tar to high tar cigarettes.

Q. Isn't your job to review the paper?

A. Yes, it is.

Q. Now can you direct your attention to Exhibit 10982, which is in the same book. Do you have it, sir?

A. Yes.

Q. And this is a BATCo document; correct?

A. I assume that it is. It's got -- at least it's been produced by BATCo.

Q. And if you look to the back page, you'll see that it's got the initials GFT, and that's Dr. Todd?

A. I presume.

Q. And the date is March 2nd, 1964.

A. Yes.

Q. See that?

Do you recall --

A. Yes.

Q. -- that Dr. Todd was the individual who was described by Mr. Yeaman in his memorandum to Mr. Finch as not being malleable? Do you remember that?

A. Somewhat. I -- it's hard for me to keep track of all these names.

Q. And Dr. Todd was the director of The Tobacco Research Council; correct?

A. I don't know, but I'll accept your representation.

Q. And if you can go over to the third page of that document, sir, --

A. Yes.

Q. -- a "'Safer' Cigarette," do you see that in quotes, "Safer?"

A. Yes.

Q. Dr. Todd here says, "I asked Roe for his views on what would constitute a safer cigarette. He said that he found this difficult to answer. The epidemiological evidence showed clearly that cigarette smoke caused lung cancer. One had to use animals to find out the substances responsible but animals could only be used in a form of fundamental research."

*21 That's what you and I were just talking about; correct?

A. In what regard?

Q. The fundamental research of mouse skin-painting and --

A. I don't remember talking about it in terms of fundamental research.

Q. All right. "It was quite impossible to use animals in a way that would directly reflect the effect of cigarette smoke on the human lung. He found it difficult to apportion significance between 'direct carcinogens' and 'irritants.' He thought the tumors were necessarily initiated by direct carcinogens but non-specific irritants could play an important part in promoting growth of tumors once they had been started. It was important to eliminate both and he felt that concentration on either carcinogens or irritants would be wrong." Do you see that?

A. Yes.

Q. Okay. Now that's consistent with what we saw in the 1958 trip report regarding the super carcinogen; correct?

A. Well consistent in that they both seem to say that it's unlikely that any one substance will be found to be responsible for disease associated with cigarette smoking.

Q. Correct.

A. Yes.

Q. Now if you look just a little bit above that paragraph, do you see the last sentence there starting with "The whole subject was still very confidential" --

A. Yes.

Q. -- "but was likely to be of considerable importance in the future" --

A. Yes.

Q. -- "and he suggested that the tobacco manufacturers would be well advised to check that there was no chance of asbestos fibers entering the product" --

Do you see that?

A. Yes.

Q. -- "for example: used in filters."

A. Yes.

Q. Correct?

Now there was asbestos in filters; wasn't there?

A. I'm aware of one manufacturer at some period of time having asbestos in their filters.

Q. Was that Lorillard?

A. That's my recollection.

Q. The Kent micronite filter?

A. That's my recollection.

Q. The one they said was safer; correct?

A. I don't recall if they made a statement -- they made a health claim or not or a safety claim.

Q. You have no recollection of that at all?

A. No.

Q. Your review of the literature did not point that out?

A. No.

Q. Can you direct your attention to Exhibit 19987, which would be in the volume two, sir, toward the beginning. I believe it's the second document.

A. You said 19987?

Q. Correct.

A. Oh, the first one, at least in my binder it is.

Q. You're right, I didn't move that other one. It is the first one in your book.

A. Okay.

Q. And that's a B&W document?

A. It was produced by B&W.

Q. And it's dated August 16th, 1957; correct?

A. Yes.

Q. And it's by a Dr. Davies for J. Kirwan; correct?

A. Yes.

Q. In the Scientific Control Laboratories of British- American Tobacco Company Limited?

A. Yes.

MR. CIRESI: Your Honor, we'd offer Exhibit 19987.

MR. BERNICK: No objection.

THE COURT: Court will receive 19987.

*22 BY MR. CIRESI:

Q. Is this is the document which is now on the overhead, it's entitled "Cigarette Comparison Report - KENT cigarettes;" correct?

A. Yes.

Q. And you see in the second paragraph there's a notation, "You will see from this that although KENT filter is described as a MICRONITE Filter the present sample is quite different from the old blue Micronite Filter fitted to the cigarette." Do you see that?

A. Yes.

Q. And if you go on to the next page -- and again I apologize for the quality, but I'll try to bring it up so you can see it, sir -- do you see the composition of the filter there?

A. Yes.

Q. And if you go down, you'll see cellulose acetate?

A. Yes.

Q. And then you have cotton and then you have asbestos. Do you see that?

A. It appears that's what it says.

Q. And that's consistent with what you have learned about there being asbestos in the Kent filters; correct?

A. If it's the same timeframe. That -- that's one thing I'm not sure about. I know that they used it for a very short period of time, but what I don't know is what that period of time was and if that matches up with this. But I've got no reason to -- to doubt this.

Q. You don't know how long they actually used it; do you, sir?

A. No.

Q. Now can you go to Exhibit 11913, which is back in volume one. Do you have that, sir?

A. I'm getting there.

Q. Is your copy good? Does it go all the way over the side?

A. It's cut off on the right side, except the first line.

MR. CIRESI: May I approach, Your Honor.

(Document handed to the witness.)

Q. Let me hand you another one, doctor. That one is complete; correct?

A. Yes.

Q. Okay. Now this is a Tobacco Research Council document; correct?

A. Yes.

Q. And if you go to the last page there, you'll see that it's from Dr. Todd --

A. Yes.

Q. -- as director; correct?

A. Yes.

Q. This is in 1967; correct?

A. Yes.

Q. Same Dr. Todd that we just saw in the other document; correct?

A. I assume so.

Q. The same one you assume that was said not to be malleable; correct?

A. I -- I forgot that reference. I mean I remember that -- that particular passage, but I forgot who it was pertaining to.

Q. Well would you accept my --

A. Yes.

Q. -- statement that it was Dr. Todd?

A. I'll accept that statement, yes.

Q. Okay. Now this is to Addison Yeaman; correct?

A. Yes.

Q. And Addison Yeaman, he's the one that said Dr. Todd, he's not malleable; is that right?

A. If I accept your representation, yes. I mean I -- I assume he expressed that view. He was the one who expressed that view, and it was about Todd who he was talking.

Q. All right. And it says "Dear Add." This is private letter number 15; correct?

A. Yes.

Q. If you go down to the third paragraph, "The only real difficulties that we encountered arose out of the unavoidable paradox at the centre of our operations - namely that on the one hand the manufacturers control TRC's operations and do not accept that smoking has been proved to cause lung cancer while, on the other hand, TRC's research program is based on the working hypothesis that this has been sufficiently proved for research purposes." Do you see that?

*23 A. Yes.

Q. "In addition, the Council's senior scientists accept the causation theory and work for the Council because they are interested in trying to solve what they consider to be an urgent human health problem. We have not yet found the best way of handling this paradox." Do you see that?

A. Yes, I do.

Q. Now one way to handle the paradox would be to speak the truth; wouldn't it? To let the scientists control. Wouldn't it, sir?

A. I think the best way to handle the paradox is to allow the research to happen.

Q. And to let the scientists control; correct?

A. Well certainly to let the scientists do their job.

Q. And if the scientists believe and accept causation, then the Frank Statement should say we believe the products we make are injurious to health, if that's what the scientists believed; correct?

A. Well the scientists had various views about this. And it was a complicated issue. In order to make a scientific statement about this, you would have to describe all the information and describe what it says and what it doesn't say.

Q. Well is that --

A. This is a simplified statement. I don't view this as a technical statement.

Q. Well this is a statement about health.

A. It's a statement --

Q. They don't have all kinds of information in here; do they?

A. No. It's -- and that's -- that's the way these statements are typically made, like the warning on the pack, and it's an expression of belief.

Q. Well if --

A. It isn't -- it isn't --

To me this isn't an expression of a scientific view or technical view.

Q. Is that what this says? Did they say that?

MR. BERNICK: Excuse me. Can the witness be permitted to answer his questions fully?

THE COURT: I think he's finished.

THE WITNESS: No, I wasn't finished actually. What --

MR. CIRESI: Sir --

THE COURT: Is this responsive to the question asked?

THE WITNESS: I'm sorry. Could you please repeat the question?

MR. CIRESI: Yeah, I'll start with the question again.

BY MR. CIRESI:

Q. If the scientists believe the causation theory, the scientists --

A. Yes.

Q. Do you understand that?

A. Yes.

Q. Okay. If the scientists believe that, then what this statement should say is we believe the products we make are injurious to health; correct?

A. It depends upon what -- it depends upon what the scientists are saying. If they are saying we make the assumption based on the epidemiology that smoking causes disease, then it should say that. If it says there is some suggestive evidence from the experimental research, then it should say that. But those to me, to talk about it in scientific terms, you have to be precise and careful about everything that's there.

Now if you're making a public health statement, I do believe that more simple, emphatic statements are probably the way to go, and that's what the Surgeon General and others have done. But to express it in scientific terms, you'd need to be able to discuss -- to be accurate and careful, you'd need to be able to discuss all the issues, and that would be a complicated -- it's a complicated message.

*24 Q. Where is that here, sir? Where is the scientific epidemiology when they say we believe the products we make are not injurious to health? Where is it?

A. I'm not sure what that statement is based on. It's probably more of a reflection of doubt about what the complete science says.

Q. Where --

Can you answer my question? Where is the epidemiology here? What did they say?

A. Well it's not described. That's what I'm saying.

Q. Where do they say in here, these companies, well, you know, we believe it's not injurious to health because there's some information that suggests that it may be, but then there's other that says that it isn't. Where does it say that here?

MR. BERNICK: Your Honor, I object to the form of the question and the argument of counsel through his gestures and the tone of his voice. It's not a factual question that's being asked of this witness.

THE COURT: You may answer the question.

A. What I'm saying, sir, as you're suggesting, if the scientists made the statement, this statement would be relatively complicated because it would entail a lot of details about what's known and what's not known. You'd have to talk about the experimental evidence, what it shows and doesn't show, describe the conditions under which the tests are done, you'd have to describe the epidemiological evidence, the nature of the different types of studies, how much confidence we had in the various studies of a prospective nature or retrospective. It would entail a lot of discussion. And that's the way we as scientists talk about it. We look at this more from the experimental side because we're challenged with the task of making a safer cigarette, and the experimental evidence is the only way we can get to that. We can't get to that through the epidemiology. So we tend to view it more from the experimental side.

Q. Are you done?

A. No.

Now this statement reflects more of a belief and a simple statement, and I don't think that having a scientific expression would be appropriate in this kind of a statement.

Q. Well --

A. But also I -- I think that this statement was done back in 1954 where the science was relatively immature, and I think it's difficult to try to judge this statement today in 1998 against the standards -- today's standards compared to what was done 40 years ago.

Q. Are you done now?

A. Yes.

MR. CIRESI: Move to strike, non-responsive.

THE COURT: Sustained.

BY MR. CIRESI:

Q. Now sir, let me go back to the question. If the scientists -- let me ask you another question.

Was the statement, "We believe the products we make are not injurious to health," based on epidemiology?

A. Well I don't know really what it was based on --

Q. Was it based on animal studies?

A. Are you done?

Q. Yeah, I --

A. I tried to answer --

Q. -- try to keep it short.

A. I'm sorry. I tried to answer and you stopped me.

*25 I don't know what the statement was based on, I wasn't there, I wasn't involved in the development of that statement. I don't know what evidence was reviewed or not reviewed or what the genesis of that statement was.

Q. So you have no idea what it was based on; is that what you're saying?

A. No, I don't.

Q. Have you made any investigation as to what it was based on?

A. No, I haven't.

Q. Do you know if they had a scintilla of evidence to support that statement?

A. They may have. I don't know.

Q. You just don't know; correct?

A. No, that's correct.

Q. Has Brown & Williamson ever retracted that statement?

A. Not to my knowledge.

THE COURT: Why don't we take a short recess.

THE CLERK: Court stands in recess.

(Recess taken.)

THE CLERK: Court is again in session.

(Jury enters the courtroom.)

THE CLERK: You may be seated.

THE COURT: Counsel.

MR. CIRESI: Thank you, Your Honor.

BY MR. CIRESI:

Q. Doctor, can you direct your attention to Exhibit 10950, which is in volume one 10950.

A. I've got it.

Q. That's a B.A.T. Company document regarding a "Conference on Inhalation Toxicology" at Southampton, August 7th To 9th, 1974.

A. Yes.

Q. And you see that it's authored by E. B. Wilkes?

A. Yes.

MR. CIRESI: Your Honor, we would offer Exhibit 10950.

MR. BERNICK: No objection.

MR. CIRESI: Court will receive 10950.

BY MR. CIRESI:

Q. Now the title is "Conference on Technology, Group Research & Development Centre, Southampton 7th to 9th August 1974;" correct?

A. Well it's "Toxicology," I think you said "Technology."

Q. "Toxicology," thank you.

And if you go to the last page, you'll see the author is E. B. Wilkes; right?

A. Yes.

Q. And you see the distribution also goes to Dr. Felton; correct?

A. Yes.

Q. That's Dr. Felton we saw in the trip report which was Exhibit 11028, which was in 1958; correct?

A. I assume so, yes.

Q. About 16 years before this; correct, sir?

A. Yes.

Q. If we go back to the first page, Dr. Wilkes, do you know who he is?

A. I've never let him.

Q. Says, "These comments are a personal reflection upon the outcome of the three days proceedings." Correct?

A. Yes.

Q. And he references the fact that he was disappointed by the somewhat negative approach of the section of the conference devoted to the methodology of animal exposure to cigarette smoke; correct?

A. Yes.

Q. And he referenced "A great deal of discussion centered around -- centered around two areas of difficulty: "(a) lack of response in animal species" and "dosimetry." Correct?

A. Yes.

Q. Do you know what dosimetry is?

A. Yes.

Q. What is it, sir?

A. That's characterizing the dose of the test article that the animals get.

Q. The measuring of the dose; correct?

A. Well that's included in characterizing it.

*26 Q. And he says that "At the end of three days of debate the net result seemed to me to be the conclusion that because the animals do not respond to smoke exposure and because it is difficult to measure dose at the target tissue, dose/response experiments are pointless. As a correlary it was concluded that since dose/response experimentation was not worth pursuing, statistical analysis of the data was largely irrelevant." Correct?

A. That's what it says.

Q. Then he goes on to state the reasons why he found these conclusions disappointing; correct?

A. Yes.

Q. And he mentioned the work of Dontenwill, correct?

A. Let me get there.

Q. Right under subparagraph (a). Do you see the reference to Dontenwill?

A. Yes.

Q. Okay. The same Dontenwill work that you were told about when you met with Shook, Hardy & Bacon; right?

A. I assume so.

Q. And if you go over to the next page, at the bottom of the page he suggests that there's been enough work done in the animal area to suggest that continued work be done there; correct?

A. Let me finish reading it. I'm having trouble reading this one, so --

Q. Take a look at the hard copy, sir. It's easier to read. Page two at the bottom.

A. Yes, I'm there. I'm -- I'm just reading it.

Yes, I see it.

Q. Okay. And he's saying that it's a suggestion which the conference chose to ignore, correct?

A. That's what it says.

Q. Then he goes on to state, "The fact that accurate dosimetry is difficult and that it is almost imposition to measure the exact dose received by the target tissue in the animal species exposed to smoke does not seem to me to constitute a valid reason for not attempting does/response studies;" correct?

A. That's what it says.

Q. Then he goes on to state, "But are assumptions of this kind necessarily so bad? The tobacco industry has become involved in the investigation of the biological consequences of smoking as a result of the outcome of a large dose/response experiment."

Do you know which experiment he's relating to?

A. No.

Q. It's the human experience; isn't it, sir?

A. I don't know if that's what he says or if that's what he's saying.

Q. You read this document; didn't you?

A. I don't know if I've seen this one.

Q. Okay. "In this experiment no dosimetry was used, there was no control over the frequency of smoking or the concentration of smoke used, and there was no attempt at random distribution of the test animals to the various levels of exposure. And yet a clear dose/response relationship emerged."

"I am referring of course to the epidemiological study of the smoking habit in man. Generally speaking, the only measure of dose is the number of cigarettes sold to the customer. Little information is available about the frequency of smoking, the frequency of puffing, puff parameters, butt lengths, et cetera. At first the dose/response relationship seemed tenuous and was occasionally challenged. But now, after many and various epidemiological studies, few people doubt the existence of the dose/response relationship in men. Ratios of risk to disease derived from numbers of cigarettes smoked (on average) per day have been computed, as have the ratios of urban to rural disease risk. All without accurate dosimetry.

*27 "I therefore find it difficult to accept that in animal experiments, where we can exercise a much tighter control over the exposure regimes, and can undertake some dosimetry studies (albeit on a limited scale), dose/response relationships are unobtainable. I admit that many assumptions are necessary. But I tend to believe that, as in the human study, gradually only one result will be tenable i.e. that there is a dose/response relationship in the animal species, and that this relationship is obtained from exposure/response comparisons.

"I believe that we could now, using currently available data, set up a viable dose/response experiment. Using Dontenwill's techniques the number of animals involved need be no greater than those used in a comparable mouse skin- painting test. The statistical analysis would be formidable, involving many assumptions. But I would suggest that the difficulties are there to be overcome, not to provide an excuse for not acting.

"Whether we like it or not, the human experiment will continue, and will be monitored by many whose sole objective is to discredit the tobacco industry. If the results of this experiment tend to go against us, and if it is -- if it is shown that we failed to make a vigorous attempt to assess the biological activity of the smoke from our products, the consequences of our inactivity could be disastrous."

Do you see that?

A. Yes.

Q. And the human experience has continued since 1974; hasn't it, doctor?

A. Well people do smoke, that is true.

Q. And millions of people have started to smoke since 1974; haven't they?

A. I assume so.

Q. And most of those who start to smoke are under the age of 18; correct?

A. I don't know the ages of when people start to smoke. Certainly people under the age of 18 begin smoking.

Q. Are you aware that in excess of 80 percent of the people who start smoking start before the age of 18?

A. I'm not intimately familiar with the statistics about that.

Q. And people have continued to contract lung cancer and chronic obstructive pulmonary disease during that period of time; haven't they?

A. That is true.

Q. And have continued to contract other diseases as a result of smoking; correct?

A. Well certainly the association is there.

Q. And that human experiment has continued all the while during which the industry has said that smoking does not cause disease; correct?

A. Well human experiment is a characterization they are giving it, probably to make it look dramatic. Certainly people smoke, and I don't -- it's not our position that smoking does not cause disease.

Q. People, sir, since 1974 have continued to smoke and the industry, the industry during that time has said -- has not said, excuse me, that smoking does not cause disease; has it?

A. I -- I can't speak for the industry. I can tell you what our position is. We do not say --

We do not deny that smoking causes disease.

*28 Q. You don't say that smoking causes disease; do you?

A. We say that smoking may cause disease. I assume, based on the epidemiology, that it does.

Q. You assume it does?

A. I assume it does based on the epidemiology, yes.

Q. Should scientists then make the statements on behalf of the companies looking at the Frank Statement, or should the lawyers? Who should speak on matters of health, --

A. Well --

Q. -- the scientists or the lawyers?

A. You're holding up the statement here. The statement that was made, expression of belief 45 years ago, and trying to compare it to today's standards. The science was very different then than it is today.

Q. Sir --

A. I believe -- I believe that views about smoking and health are best developed, the scientific position is obviously best developed by scientists.

Q. Well the issue of smoking and health is a scientific issue; is it not?

A. Well it -- it spans many areas. It's scientific, there's legal issues, there's public health issues, there's economic issues, there's political issues. There are many issues surrounding smoking and health, I think, as -- as everyone knows.

Q. What's the legal issue? You may be held responsible for the fact that you admit that your product kills people?

MR. BERNICK: Your Honor, --

Q. Is that the issue?

MR. BERNICK: -- A, it's argumentative, B, I think it's improper to be asking a witness for legal views and an expression of legal opinions.

THE COURT: Well he stated that there's a legal issue. I think he can ask what that legal issue is.

Q. Sir, what's the legal issue, that your company and the industry will be held responsible for its conduct with regard to the smoking-and-health issue? Is that the legal issue?

A. The legal issue is even though in our -- in our society, which is a free society, and people say we can engage in activities that may be risky, and society has collectively said people can have access to tobacco products if they wish, because we're a free- market society, that means companies engage in the manufacture and sale of those products. That's the way our economy works.

But because the product has a problem, we can get sued for that. There's a legal issue. And that has happened, we've been sued repeatedly from almost the beginning of -- of the concern on smoking and health because our product has risks.

Q. Because your product kills?

A. That's the legal issue.

Q. That's the legal issue.

A. It may.

Q. It may?

A. It may, yes.

Q. Do you believe your product kills people?

A. I assume that that's -- that's definitely a possibility, based on the epidemiology.

Q. I didn't ask you if it's definitely a possibility. Do you believe your product kills people?

A. I think it may.

Q. You think it does; don't you?

A. I assume that it does based on the epidemiology.

Q. You know it does.

A. I don't -- I don't know that it does.

*29 MR. BERNICK: Your Honor -- Your Honor -- excuse me. It's badgering the witness at this point.

THE COURT: Why don't you move on, counsel.

BY MR. CIRESI:

Q. Now sir, should the scientists speak for the companies on this issue?

MR. BERNICK: Your Honor, that's been asked and answered twice now.

THE COURT: Well, I think you better rephrase that. What issue are you talking about?

Q. On the issue of smoking and health, should the scientists be the people who speak to the consumer?

A. I'm not sure if the scientists are the people that should speak to the consumers. I think that if the scientific position is asked, the scientists are the most appropriate people to make that position. But I do think the consumer should be made aware of the health risks, but I don't believe that scientists in tobacco companies are the appropriate people to do that, I think the public health authorities are the appropriate people to do that.

Q. Well let me ask you to assume that the company has a responsibility to speak to the consumers. If that is true, would you not agree that it is the scientists who should speak to the company and not the lawyers on matters of health?

MR. BERNICK: Third time it's been asked now, Your Honor.

THE COURT: That's a little different question.

A. I'm -- I'm sorry. You're asking me to make what assumption?

Q. I want you to assume that the company has a responsibility to speak to consumers. If that is true, would you not agree that it is the scientists who should speak to the company and not the lawyers on matters of public health?

A. Speak to the company or the consumers?

Q. To the consumers.

A. To me it's a complicated area, because when you're talking about communicating to consumers, you're talking about public communications and -- and also you're potentially talking about warnings. It may be that warnings are best left to people who are experts in making warnings. The scientists may not express things in the best way to do it. They may say, well, on the one hand here, but on the other hand there, whereas someone who's an expert in providing warnings may know how to craft these things in very precise language or very simple language to make it very clear. I don't -- I mean I can't give you --

I'm not trying to be evasive. I just don't know that scientists are the best because sometimes scientists use very technical language or try to be very precise, and it may not be the best way to communicate. So I can't really give you an opinion about that that's informed.

Q. Well let me see if I can help you. Let's assume that I'm the CEO of Brown & Williamson and I want to know if smoking causes cancer. Should I ask the lawyer that question, or should I ask the scientist? Who's qualified?

A. If you want to know the legal issues, you should talk to the lawyer. If you want to know --

Q. No, I want to know --

A. If you want to know what the science is, you should certainly talk to a scientist.

*30 Q. All right. So I should ask the scientist does smoking cause disease; correct?

A. Yes.

Q. And if the scientist tells me it does cause, and if I have a duty -- and I want you to assume that -- to tell the consumers that, should I follow the scientist's advice or should I ask the lawyers whether I should?

MR. BERNICK: Your Honor, I object. This calls for a legal conclusion. He's now giving him a legal hypothetical. He's asking him the responsibilities of the management.

THE COURT: No. You may answer that question.

A. I think the assumption that -- that we in fact do have a duty to do that, and I don't know if that's true, I would say that the advice should come from the scientist.

Q. The lawyers should not shape it, slant it, or temper it; should they, sir?

A. I don't know what you mean by shape, slant or temper. Those are value- laden terms; they can mean many different things to many people. And if I say "yes" or "no," I'm not sure what I've just agreed to because I'm not sure what you mean or how it will be taken by the people in the courtroom.

Q. So you just don't understand those words.

A. I prefer not to say anything unless I know exactly what you mean, because I don't know what I'm responding to because I don't know what you're saying or how it's being taken.

Q. Now you said this is a free country; correct?

A. Relatively, yes.

Q. And when it's a free country, people are able to exercise their free, unfettered will; correct?

A. Within limits.

Q. And when they're exercising their free, unfettered will, they shouldn't be impaired in terms of exercising that will; correct?

A. Within the limits that society has agreed to. There -- I mean obviously there's constraints.

Q. And if someone is addicted, their free will is impaired; isn't it?

A. Depends on what you mean by addiction.

Q. Do you understand addiction at all?

A. I understand there's many ways that people can define addiction. It can -- can be very narrowly defined, such as from a pharmacological definition, it can be broadly defined and include things like gambling.

Q. Well does gambling kill 400,000 people a year?

A. I read an article in the St. Paul paper last week that suggested --

Q. Sir, --

A. -- it kills many people --

Q. -- I'm not asking you --

A. -- because of increased suicide rates.

Q. I'm not asking you about the paper.

A. Well I'm trying to answer.

Q. Does gambling kill 400,000 people a year?

A. My understanding is it takes a huge toll on society, up to 50 billion dollars a year and they've been responsible for increased suicide rates, particularly among teen- agers. That's what the St. Paul paper reported last week.

MR. CIRESI: Your Honor, I'm going to move to strike.

THE COURT: That answer will be stricken as non-responsive.

BY MR. CIRESI:

Q. Does gambling, in accordance with any reported epidemiological studies or medical studies, kill 400,000 people a year?

*31 A. I have read accounts of science that suggests it's responsible for increased suicide rates.

Q. Sir, that's not what I asked you. Can you answer my question?

A. But the number wasn't 400,000 a year.

Q. Now if someone is addicted, and I want you to assume they're addicted to cigarette smoking, is their free will impaired?

A. It's hard to say. I think people --

Q. If you don't know, just tell me you don't know.

A. Well I -- I don't know if free will is impaired or not. I used to smoke. I don't know if I was addicted or not, but I quit. And I know many people do quit. So it seems to me if people want to, they can quit.

Q. Do you know how many people have tried to quit and relapse?

A. No.

Q. Do you know how many people have tried to quit before the age of 65 and have been totally and utterly unsuccessful?

A. I think that people's ability to quit spans a wide range. I think some people can do it with relative ease, I think some people have great difficulty. Many people have quit, many people have tried and haven't quit.

Q. Do you know that --

A. I think it spans a range of -- of responses.

Q. You know that the overwhelming majority, based on studies, of people who tried to quit smoking cannot quit.

MR. BERNICK: Objection, this is counsel testifying. If there's a particular study that he has in mind, he ought to show it to the witness.

THE COURT: Do you have a study, counsel?

MR. CIRESI: I'm only asking if he knows, Your Honor.

THE COURT: Well then you'll have to rephrase the question.

BY MR. CIRESI:

Q. Do you know if there are studies regarding the number of people who have tried to quit and are utterly unsuccessful?

A. Certainly. Many studies like that have been conducted.

Q. And are you aware that the Surgeon General has addressed that issue?

A. Well the Surgeon General's Advisory Committee has looked at the issue twice, and they came to different conclusions on both occasions.

Q. Sir, are you aware that they've addressed the issue of how many people have tried to quit and were unsuccessful?

A. Yes, I've seen that -- that information reported in the Surgeon General's reports.

Q. And you have --

Based on that, you are aware that the vast majority are unable to quit; aren't you?

A. I don't know if I can say it's the majority. I just know a lot of people have quit and a lot of people have not. Whether or not it's more than 50 percent, I don't recall the exact numbers.

Q. Do you know, based on any readings of the FTC materials, the success ratio of people trying to quit even when they have surgery for cancer?

MR. BERNICK: Your Honor, again this is now like the fourth or fifth question that's been asked without reference to any piece of data or any study. It is counsel testifying.

THE COURT: Well you can ask the question. I think --

MR. CIRESI: That's all I'm asking.

A. No, I'm not immediately familiar with F -- specifically FTC data or research in the area. I'm relying mostly on Surgeon General's reports, individual publications, and my own personal experience.

*32 Q. Do you know if the FTC has reported how many people can quit even after surgery for heart disease?

A. No.

Q. You haven't seen any --

A. I don't know what they -- I'm not saying that -- I don't know --

If they report it, I don't know what the numbers are.

Q. You know that they've reported on that, though; don't you?

A. Actually I don't. I don't recall seeing FTC data on this. I've seen a lot of data in Surgeon General's reports and research into human smoking behavior, but not specifically FTC.

Q. Have you seen reports of the FTC in 1994? Does that refresh your recollection?

A. Not on addiction.

Q. Okay. Did you see a report in the FT -- from the FTC in 1994 regarding a conference held on December 4th through 6th, I believe it was, 1994 concerning the FTC measuring standard?

A. Yes.

Q. Did you read that?

A. Yes.

Q. And was there a report in there at page 113 concerning the ability of people to quit smoking even after lung surgery or heart surgery?

A. I don't recall specifically that item on page 113.

Q. When's the last time you read it, sir?

A. That particular report?

Q. Yes.

A. I think I referred to it certainly within the last two or three months. But it wasn't that particular thing that I was referring to.

Q. You were looking for something else at that point?

A. I -- I believe -- well the FT --

That report is very informative. It has a lot of different things about a lot -- lot of different chapters that give a lot of different issues. I think I was looking basically to see what -- what -- what the history of deliveries have been, deliveries of tar and nicotine.

Q. So you only looked at one portion of the report; is that what you're saying?

A. Well when I referred to it last three months ago, I read the whole report. You asked me when I last referred to it, and that's what I referred to it for. I go back to it frequently for bits and pieces of different things.

MR. CIRESI: Your Honor, do we have the court-admitted exhibit on that? I believe it's 4394, FTC monograph.

THE COURT: We'll get it for you. Just a minute.

MR. CIRESI: We can go on, Your Honor.

4675, I'm sorry. 4675.

THE WITNESS: In binder --

MR. CIRESI: No, it's not there, doctor. We're going to try to get it for you. I'm sorry.

THE WITNESS: Oh, okay.

BY MR. CIRESI:

Q. Now when the Frank Statement was published, did you review the documents which led to that publication?

A. No. Well actually I take it back, I think I did see one document, seemed like it was related to it.

Q. Can you direct your attention to Exhibit 18904.

A. That in binder two?

Q. That is in binder one, sir.

A. Binder one. 18 what?

Q. 904.

Have you seen that document before, sir?

A. Let me look. Let me refer to it.

Yes, I think I have.

Q. And this was a document which led to the formation of the TIRC and the issuance of the Frank Statement; correct?

*33 A. It seems to certainly be related. I don't know if it led to it, but a lot of the -- lot of the things that are discussed in the Frank Statement appear in this document, from my recollection.

Q. And you recall that the research directors of the companies met with Hill & Knowlton personnel?

A. I don't remember that. It may say that in here. I don't recall that.

Q. If you go to page two, you'll see that, sir. See at the top, "The attitude of the men we must directly deal with in the industry is at once interesting, and important for us to understand. That is why notes on the four interviews with 'research directors' are given at some length. You'll get from them little real information about lung cancer, pro or con; but you'll find some mighty interesting opinions. One of the men said, 'It's fortunate for us that cigarettes are a habit they can't break." Do you see that?

A. Yes.

Q. "Said another: 'Boy! wouldn't it be wonderful in our company was the first to produce a cancer free cigarette. What we could do to the competition!"' Do you see that?

A. Yes.

Q. And if you go on to page five -- actually page three first. I'm sorry, doctor. If you go back two pages. Do you see that there was one problem being referenced in 1953, and that was "confidence, and how to establish it; public assurance, and how to create it -- in a perhaps long interim when scientific doubts must remain." Do you see that?

A. Yes.

Q. And if you go on to page five, then, the issue phrased was "How to validate this message of assurance. The men talked to in the cigarette companies tend to," and then there's (a), (b), (c) subparagraphs, do you see that?

A. Yes.

Q. They tend to "Think occasionally in terms of trying to 'smear' the personal responsibility, motives, judgments, or techniques of Wynder and others supporting him." Do you see that?

A. Yes.

Q. And then down at (c), they tend to "Overlook the fact that in this particular instance, the stakes for the public are even larger than for the tobacco manufacturers. (For the public, an issue touching the deepest of human fears and instincts is involved - the issues of uncontrollable disease and death. Hence cigarette companies might not readily be forgiven, if their approach to this problem is stemmed only from their eagerness to protect their earnings, and if they twisted the research of medical science (which seeks to save men) into a device to save stockholders. There is no precedent where a great industry has been forced to face such grave issues.

"In the past, industry has given little twists to the facts of science, to convert them into sales propoganda, without much risk. The cigarette industry has indeed been doing this for years. We can therefore readily understand its assumptions that the same technique will work now, in devising propoganda. But it is highly important to note that the deep issues of life-and-death that are now involved make highly doubtful the question as to whether the familiar techniques can be relied on. The stakes are too large; the penalties for losing could be too great.)"

*34 Now you'll recall when we looked at Exhibit 11028, which was the trip report of Dr. Felton and others, that they were talking about the purpose of the TIRC and how it was nothing but propoganda. Do you remember that?

A. I don't remember them saying it was nothing but propoganda.

Q. Well do you remember words to that effect, sir?

A. It may have been, but I --

Q. They talked about the oft-repeated statement "not proven," do you remember that?

A. I don't know if they said -- if they talked about propoganda in context of that particular type of wording or if they tried to characterize -- I don't -- I don't remember them characterizing the entire TRC program as propoganda or if the propoganda word was linked to that particular statement. That I don't recall.

Q. Well I'll just read it to you. "Liggett & Myers stayed out of TIRC originally because they doubted the sincerety of TIRC motives and believed the organization was too unwieldy to work efficiently. They remain convinced that their misgivings were justified. In their opinion, TIRC has done little, if anything, constructive. The constantly reiterated 'not proven' statements in the face of mounting contrary evidence has thoroughly discredited the TIRC." Do you remember that?

A. Yes. So it appears the propoganda wording was referring to the "not proven" phrase they talked about and not about the entire TIRC program.

Q. Thoroughly discredited; correct, sir?

A. That's the wording they used.

Q. And the purpose of the TIRC was for a public relations campaign which was positive in nature and entirely pro cigarette; correct?

A. I think the TIRC probably, like many organizations, fulfilled many functions, if --

From a scientific point of view they certainly funded and resulted in the publication of a vast amount of science on smoking and health, but nevertheless I can understand why a public relations person might view it as a public relations forum, and public relations activities may have come from that forum, but that does not mean that meritorious science was not conducted at TIRC.

Q. Do you know who ran the TIRC when it was formed?

A. No.

Q. Do you know if Hill & Knowlton ran it?

A. No, I don't.

Q. Can you go to Exhibit 19 -- 18905, the next exhibit in your book.

A. Yes, it's right here next to the other one.

Q. You read that, too; didn't you, sir?

A. Well let me look at it. It isn't immediately familiar.

Q. Dated December 15th, 1953.

A. Yes, I see that.

Q. This was a meeting at the Hotel Plaza, New York City.

A. Yeah, but --

I think this is familiar now.

Q. And if you look at the fourth paragraph and the participants, --

A. Yes.

Q. -- you see that Brown & Williamson is mentioned?

A. Yes.

Q. And you see that the chief executive officers of all the leading companies have agreed to go along with the public relations program on the health issue?

*35 A. No, I don't see that.

Q. Well --

A. Which paragraph?

Q. -- let me read it -- let me read it to you. The same paragraph. "The group was called together by Mr. Paul Hahn, President of The American Tobacco Company. The chief executive officers of all the leading companies - R. J. Reynolds, Philip Morris, Benson & Hedges, U.S. Tobacco Company, Brown & Williamson - have agreed to go along with the public relations program on the health issue." Correct?

A. That's what the document says, yes.

Q. And if you go on to the next page, it's "The Industry's Position." Do you see that?

A. Yes, I see that.

Q. And if you go to the fourth paragraph, you see that?

A. Fourth paragraph?

Q. Under Roman numeral III.

A. Yes. "They feel...?" Yes.

Q. "They feel they should sponsor a public relations campaign which is entirely -- which is positive in nature and is entirely 'pro-cigarettes;"' correct?

A. That's what it says, yes.

Q. Now it was about three weeks after the formation or the - - this meeting that the TIRC was formed and the Frank Statement was issued; correct, sir?

A. I'll accept that representation. I haven't connected up all the dates myself, but --

Q. Well this is December 15th, 1953, and the Frank Statement, Exhibit 14145, was published in 449 newspapers on January 4th, 1954; correct?

A. Okay.

Q. Is that right, sir?

A. I assume it is. I can't see it from here.

Q. And the purpose of the strategy of the industry over the ensuing 40 years was to create doubt in the public's mind; isn't that correct?

A. I don't think that's my --

I wouldn't characterize it that way.

Q. Can you go to Exhibit 20987, which is in the beginning of your second volume.

A. What was that number again?

Q. 20987.

A. Yes, I've got it.

Q. And this is a memorandum from Horace Kornegay. Remember his name? He was at that meeting of the Committee of Counsel.

A. I remember the name, but I forgot where.

Q. Well he was at the Committee of Counsel meeting where they were discussing how they were going to deal with the additives issue. Do you recall that?

A. Yes.

Q. And this is to Mr. Kornegay from Fred Panzer. I'll represent to you that Mr. Kornegay was the president of The Tobacco Institute, and Fred Panzer was the vice-president of The Tobacco Institute. Will you accept those representations?

A. Yes.

Q. And do you see that in the second paragraph Mr. Panzer, in writing to Mr. Kornegay, says, "For nearly twenty years the industry has employed a single strategy to defend itself on three major fronts -- litigation, politics and public opinion?"

A. Yes, I see that.

Q. And do you see that it says, "While the strategy was brilliantly conceived and executed over the years helping us to win important battles, it is only fair to say that it is not - nor was it intended to be - a vehicle for victory. On the contrary, it has always been a holding strategy, consisting of

*36 "creating doubt about the health charge without actually denying it." Do you see that?

A. Yes.

Q. And as somebody embarks upon a holding strategy to create doubt, it would be helpful to such a strategy to withhold and suppress information; wouldn't it, sir?

A. I suppose it depends upon how the strategy is executed.

Q. Well if it's brilliantly conceived and executed, you would agree that suppressing information would be very important in carrying out that strategy; wouldn't you?

A. Well "brilliantly conceived" doesn't tell me anything about the how the strategy was -- how the strategy may have been implemented. That's -- that's a rating.

Q. You didn't conceive of the strategy; did you, sir?

A. Did I?

Q. Yes.

A. No.

Q. You were not at the highest levels of the companies determining what their strategy would be on these issues; were you?

A. No.

Q. You've never been at the highest levels of the companies deciding what the strategy would be and how it would be executed; have you?

A. No.

Q. And sir, there are internal documents of B.A.T itself which show that causation has been proved; aren't there?

A. Could you refer me to the document?

Q. Can you look at Exhibit 26212.

By the way, had you ever seen Exhibit 20987 before?

A. Which is --

Is that the one we're looking at now?

Q. The Kornegay one.

A. Looks familiar.

Q. When did you first see it?

A. I don't recall.

Q. Was it within the past few days?

A. It probably was, because, you know, these documents, which I said, you sent them all over, but I don't know if that's the first time I saw it or not.

Q. Okay.

A. I don't recall.

Q. Can you direct your attention, then, to Exhibit 26212. It is in volume two.

A. Yes, I've got it.

Q. And that's a chronology of projects by name; --

A. Yes.

Q. -- correct?

And you see the name up there in the upper right-hand corner, that's Ernest Clements; isn't it?

A. Yes, it looks like it.

Q. And this is a document that is from B&W; correct?

A. I assume it is.

MR. CIRESI: Your Honor, we'd offer Exhibit 26212.

MR. BERNICK: Same objections as previously noted and briefed before the court.

THE COURT: Court will receive 26212.

BY MR. CIRESI:

Q. And do you see that this also carries the legend privileged and confidential, produced as required by the court's March 7th, 1998 order?

A. Yes.

Q. And do you see the name in the upper right-hand corner, Ernest Clements?

A. Yes.

Q. Do you know who that is?

A. I believe he's a paralegal with a law firm that helps us manage our records.

Q. What law firm is he with?

A. Wyatt -- I forgot the exact name, Wyatt Tarrant & Combs.

Q. Wyatt & Combs.

A. Tarrant, something like that.

Q. And Tarrant; correct?

A. Something like that.

Q. The Louisville firm; correct?

A. Yes.

Q. The one that Mr. Pritchard was talking about sending documents to without a cover letter; correct?

*37 A. I believe that was the firm that was mentioned in that memo -- or that document.

Q. Can you go to Bates number 319, the last three numbers.

While you're looking, when's the first time you got this document, sir?

A. Actually this is the first time I've seen this document.

Q. Very first time right now.

A. Right now.

Q. Okay. Page 319, do you see about halfway down there's a notation RD- 1494?

A. Yes.

Q. Do you see that it says "MASSEY, S.R.?"

A. Yes.

Q. "ANALYSIS OF NITROS-NOR-NICOTINE IN TOBACCO AND OTHER SMOKING MATERIALS?"

A. YES.

Q. "CONTAINS CONCESSION ON CONFIRMATION -- AND CONFIRMATION OF CAUSATION BY BAT?" Do you see that?

A. Yes.

Q. First time you've seen that?

A. Yes, it is.

Q. Can you go on to the next page. About halfway down, "RD- 1091-R. Do you see that? Do you see it, sir?

A. Yeah. I can't -- I'm having trouble reading this monitor.

Q. Go ahead and use the --

A. Which Bates number? Looks like there's two sets of numbers on here.

Q. 224.

A. Oh, 224. I think I was on the wrong page. And this is the -- the bottom set of numbers, because there's another set of numbers, US --

Q. Not the UCS.

A. Okay. 224?

Q. Correct.

A. All right.

Q. RD-1091 --

A. Yes.

Q. -- dash R. Nineteen -- or excuse me, it says 740804. Do you see that?

A. Yes.

Q. Okay. "NEWELL, D.G.?" Do you see that?

A. Yes.

Q. "QUALITATIVE EFFECT OF CELL TRANSFORMATION BY CIGARETTE SMOKE CONDENSATE IS ESTABLISHED. CONTAINS CONCESSION AND CONFIRMATION OF CAUSATION." Do you see that?

A. Yes, I see that.

Q. First time you've seen it?

A. Yes.

Q. Can you go on to page three -- or excuse me, 233, the last three Bates numbers.

A. So back one page? No. Oh, I'm sorry.

Q. 233. Do you have it, sir?

A. Yes.

Q. Go to the very last entry.

A. Yes.

Q. Do you see it?

A. Yes.

Q. "REVIEWS THE BIOLOGICAL ACTIVITY OF SMOKE CONDENSATE FROM ST. PAUL CIGARETTE. DOCUMENT CONTAINS CONFIRMATION OF CAUSATION." Do you see that?

A. I don't know if it says St. Paul or St. Pauli, but I can't read this. I'm not sure if it says St. Paul.

Q. Well you certainly can read "DOCUMENT CONTAINS CONFIRMATION OF CAUSATION," can't you?

A. That part I can read.

Q. Is that the first time you've seen that?

A. Yes.

Q. Can you go on to the next page. Or excuse me, page 244, I'm sorry, doctor.

A. 244?

Q. Correct.

A. Yes.

Q. And do you see about five down there's a reference to Auerbach and Kennedy?

A. Yes.

Q. "AUERBACH HAS APPARENTLY PRODUCED LUNG CANCER INHALATION. COMMENTS BY KENNEDY" --

A. Yes.

Q. -- "'NO QUESTION THAT AUERBACH HAS INDEED PRODUCED AN EFFECT IDENTICAL TO EMPHYSEMA IN HIS STUDIES."' Do you see that?

A. Yes.

Q. And emphysema is chronic obstructive pulmonary disease; isn't it, sir?

A. It's -- well chronic obstructive pulmonary disease is a broad term used for a collection of different diseases.

*38 Q. One of which --

A. One of which is emphysema.

Q. It results in an excruciating death; does it not?

A. My understanding is -- is that it can be a difficult death. I don't know if excruciating.

Q. People gasping for breath; correct, sir?

A. I think in the severe stages, that can happen.

Q. And can you direct your attention now to Exhibit 26185, which is back just a little bit from where you were.

A. Back one, or --

Q. Back a few. 26185.

A. Yes.

Q. This is a 1982 document?

A. Yes.

Q. CAC VII?

A. Yes.

Q. "WHAT ARE THE OBSTACLES/ENEMIES OF A SWING TO LOW 'TAR' AND WHAT ACTION SHOULD WE TAKE?"

A. That's what the title is, yes.

Q. And can you go to the last page. Do you see the initials JKW?

A. Yes.

Q. That's J. Kendrick Wells; correct?

A. I assume so.

MR. CIRESI: Your Honor, we'd offer Exhibit 26185.

MR. BERNICK: Same objections as stated previously, Your Honor.

THE COURT: Court will receive 26185.

BY MR. CIRESI:

Q. This is a speech given by Mr. Wells to CAC VII. I'd like to go through it with you, sir.

A. Okay.

Q. "Statements on cigarette smoking by public health opinion leaders in the U.S., such as the Surgeon General, the American Cancer Society and commentators now consist predominantly of dramatic warnings and stern advice to quit."

Now you see that this is dated July 2nd, 1982; correct?

A. Yes.

Q. After the 1981 Surgeon General's report; correct?

A. Yes.

Q. And the legend over on the left is, again, privileged and confidential, produced as required by the court's March 7, 1998 order; correct?

A. Yes.

Q. We go back to the text. "The public health establishment is concerned that statements attributing less risk to lower delivery cigarettes have supported consumption. Consequently, the American Cancer Society has adopted the Surgeon General's position that there is no safe cigarette; smoking cigarettes with lower yields reduces only the risk of lung cancer, provided there is no compensatory increase in the amount smoked;" --

Do you see that?

A. Yes.

Q. -- "and 'the single most effective way to reduce the hazards of smoking continues to be that of quitting entirely."' Correct?

A. Yes. I think he's quoting directly from the Surgeon General's report here.

Q. And at the CAC VII conference, Mr. Wells went on to state that a serious attack was forming against lower delivery cigarettes; correct? Paragraph that starts at the bottom of the page.

A. Yes, I'm -- I'm just trying to read it.

Q. And that attack is "predominantly on the ground that smokers adjust their smoking behavior;" correct?

A. That's what it says.

Q. And if you go on to the next page, do you find that in the second paragraph, "The attack also has used the additives issues. The American Cancer Society, for example, has charged that additives unknown to the public may make lower delivery cigarettes as dangerous as higher delivery products." Correct?

*39 A. That's what it says, yes.

Q. And then Mr. Wells sets forth what B&W and the CAC group is going to do to counter what the public health authorities are saying; correct?

Let me help you out. Third paragraph. "B&W will undertake activities designed to generate statements by public health opinion leaders which will indicate tolerance for smoking and improve the consumers' perception of ultra low tar cigarettes (5 milligrams or less). The first step will be identification of attractive scientists not previously involved in the low delivery controversy who would produce studies re- emphasizing the lower delivery, less risk concept. Through political and scientific friends, B&W will attempt to elicit from the administration and legislative branches of the federal government, and perhaps voluntary health groups, statements sympathetic to the concept that generally less health risk is associated with ultra low delivery cigarette consumption. The program is designed to produce statements of sufficient news interest to reach the public through the media."

Do you see that?

A. Yes.

Q. So what Mr. Wells is describing here is a campaign on behalf of B&W and the CAC companies to influence political and scientific friends in order to generate statements that will reach the public through the media; correct?

A. That's what it says, yes.

Q. "In addition, B&W would seek to generate spontaneous mainstream media articles dealing with component deliveries, much as the old Readers Digest articles."

Now sir, did you read Professor Berman's testimony?

A. Who?

Q. Professor Berman in this case.

A. No, I didn't.

Q. He was a witness on behalf of the industry. You didn't read it?

A. No.

Q. Do you know anything about Dr. Diehl's book and about the planting of articles by the industry?

A. No.

Q. "The publication this year of the Lee and Garfinkel paper, which found reduced mortality for lung cancer, other respiratory diseases and CHD associated with lower delivery, was ignored by the U.S. media. This may signal that a comprehensive opinion leader program will be necessary to achieve public consciousness."

"A fundamental theme of the program will be that government and private health groups have a duty to the millions of smokers to present effectively the concept of risk reduction inherent in the dose-response foundation of the case against smoking. B&W would not endorse the position that smoking or delivery levels are related causally with disease. Carefully structured research grants to individual scientists and perhaps private health organizations will be essential to the success of the program."

Now this is the same individual, Mr. Wells, who's talking about carefully structured research grants who talked about slanting information; didn't he?

A. I remember a reference to slanting. I don't remember if that was a -- a Kendrick Wells document or not.

*40 Q. "Changing the context of scientific information," do you remember that phrase?

A. No, I don't remember that.

Q. If you go on, then, to the next page, sir, last paragraph, "B&W will urge the industry to sponsor research in the ultra low delivery cigarette area which turns the principles used against the industry to positive use. Research projects would include new evaluations of epidemiological data base with conclusions which parallel those of Hammond, Gori and others pertaining to risk reduction associated with ultra low delivery cigarettes. The new studies should include CVD," --

Do you know what that means?

A. I assume it means coronary vascular disease.

Q. Cardiovascular disease. Is that what it's referring to?

A. I've seen it both ways.

Q. -- "anticipating possible adverse results in the Multiple Risk Factor Intervention Trial due this year" --

Do you know what that is?

A. That particular trial?

Q. Tes?

A. Yes.

Q. And what was it, sir?

A. There was a trial that --

There was a hypothesis that if people could be instructed and receive training in altering multiple risk factors, that they may reduce their incidence of disease. And the risk factors that were chosen were, I think, high-fat diet, overweight, cigarette smoking -- there may have been other dietary factors like reduced consumption of sodium and also getting more exercise. The theory was that if people could influence all those risk factors in the favorable direction, then perhaps down the road one would see a reduction in disease incidence.

Q. So here they were saying "The new studies should include CVD, anticipating possible adverse results in the Multiple Risk Factor Intervention Trial;" correct?

A. That's what it says, yes.

Q. And if you go on to the next page, "Industry positions favoring the low delivery cigarette can be effectively presented," --

Do you see that --

A. Yes.

Q. -- down at the end?

-- "but must be carefully structured. An industry and government dialogue will pace -- place a premium on the industry's own research to shape the foundation of the smoking and health controversy. Finally, an effective industry political program involving the Congress and the White House will be essential to success in these programs." Do you see that?

A. Yes, I see that.

Q. And you recall that when we looked at the JAMA article, Drs. Koop and Kessler were talking about the need to get the industry's information out so that Congress will have the truth; weren't they?

A. I don't recall that. It may --

They may have said that, but we've gone over so much that I don't remember every single thing.

Q. You don't deny that that was set forth in that article; do you?

A. No, no, not at all. I'm just saying I don't remember.

Q. And can you go now, sir, to Exhibit 26254.

By the way, did Mr. Wells ever give this speech at Brown & Williamson?

*41 A. I have no idea, and I don't know if anything he's proposing there ever actually got implemented. This -- it -- it reflects the tension that existed in, on the one hand, the potential benefits of reduced delivery cigarettes which people were talking about, and the fact that it may not --

Q. Excuse me, sir. I only asked a very simple question. Did he ever give this speech at Brown & Williamson?

A. I don't know.

Q. Can you go to Exhibit 26254.

A. Got it.

Q. Okay. And this is another personal and confidential memorandum, and I'll represent to you that it's from Shook, Hardy & Bacon, and it's to Philip Morris, and its date is December 1981. See that?

A. I don't see it anywhere, but I'll accept your representation.

Q. And you see the introduction that "This memorandum is written to provide a critical analysis of legal and scientific problems raised by Dr. L.C.F. Blackman's presentation as found in the Blue Book and in copies of slides used in oral presentations?" See that?

A. Yes, I see that.

Q. And you know that the Blue Book was a book prepared by BATCo; correct?

A. I've -- I've seen --

I've heard reference to this book, but I don't actually know what it is. I haven't seen it and don't know exactly what the Blue Book is or was.

Q. Have you learned enough to know that it dealt with smoking-and-health issues?

A. Well I've always seen it referred to in the smoking-and- health context, but I don't know just what it dealt with actually.

MR. CIRESI: Your Honor, we would offer Exhibit 26254.

MR. BERNICK: Same objections as previously lodged before the court.

THE COURT: Court will receive 26254.

BY MR. CIRESI:

Q. I'd like to direct your attention, sir, to page 16, and that's the actual number of the page, not a Bates number. And you'll see it at the bottom. I want to direct your attention to that portion that talks -- which talks about additional problems and questions regarding the Blue Book. Do you see that?

A. Yes.

Q. "By stating that the industry has responded to 'that strong body of medical opinion' which holds that the lower yield cigarettes are less hazardous, Dr. Blackman is vulnerable to the question of why the industry did not respond to contrary medical opinion, or, equivalently, of how the industry selected the medical opinion which it chose to follow. These troublesome questions remain even if the related issue of adopted -- of adoption by the industry of selected medical opinion can be successfully resolved. Several examples will follow." And then he lists other diseases; correct?

A. Yes.

Q. Talks about "Because little, if anything, is known about the effect of lower yield cigarettes on the risks of diseases associated with smoking (other than lung cancer, according to some researchers), it is entirely possible that these disease risks would be increased." See that?

A. Yes.

Q. Then it talks about initiation of smoking; correct?

*42 A. Yes.

Q. Compensation; correct?

A. Yes.

Q. Cell type; correct?

A. Yes.

Q. And on the next page, additives and flavorings and other ingredients; correct?

A. Yes.

Q. And in all of these he's pointing out the problems; correct?

A. In all these, what he's -- what he's saying is that these are unresolved issues and apparently doesn't feel like it's appropriate to make any health claims about low tar cigarettes.

Q. And sir, if you go to the conclusion, "Dr. Blackman's position that the industry's current product modifications" --

Now what were those in 19 -- in the 1980s? They were reduction of --

A. I'm not sure what he's referring to, but I assume he means reduction of deliveries.

Q. Reduction of tar and nicotine; correct?

A. I assume so, yes.

Q. The things you talked about in your direct; correct?

A. Yes.

Q. Okay. "Dr. Blackman's position that the industry's current product modifications are in response to a 'strong body of medical opinion' (which he describes) suffers from major scientific weaknesses. The epidemiological and histological evidence or data on which this opinion relies can be challenged on serious scientific grounds. In addition, important questions are ignored, possible alternative explanations are not discussed, and differing scientific positions are hardly mentioned. This highly selective reading of the scientific literature may be misleading and certainly gives rise to questions to which the industry has no persuasive responses." Do you see that?

A. Yes, I do.

Q. And do you know that in this courtroom for the last 62 days, the industry has been suggesting that it was the public health officials who wanted lower tar/lower nicotine cigarettes? Have you been told that?

MR. BERNICK: Objection to the misleading form of the question. This is a reference to the scientific literature, not the public health policy.

THE COURT: Counsel, counsel, --

MR. BERNICK: Object to the form.

THE COURT: -- just state your legal objection rather than coaching the witness.

MR. BERNICK: I didn't intend to coach the witness. I apologize, Your Honor.

THE COURT: Okay. Just state the legal objection so I can rule on the legal objection.

MR. BERNICK: Okay. Object to the form of the question, Your Honor.

THE COURT: Sustained.

MR. CIRESI: I have no further questions. Thank you, doctor.

MR. BERNICK: I can get in a few.

THE COURT: Why don't we recess, reconvene tomorrow morning at 9:30.

THE CLERK: Court stands adjourned, to reconvene tomorrow morning at 9:30.

(Recess taken.)
 

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