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:           February 20, 1998
            A.M. Session

    JUDGE:          Hon. Judge Kenneth J. Fitzpatrick, Chief Judge

    THE CLERK: All rise. Ramsey District Court is now in session, the Honorable
    Kenneth J. Fitzpatrick now presiding.
        (Jury enters the courtroom.)
        THE CLERK: Please 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.")
        JAMES F. GLENN called as a witness, being previously sworn, was
    examined and testified as follows:
    BY MR. CIRESI:
        Q. Good morning, doctor.
        A. Good morning.
        Q. Doctor, when we recessed yesterday, we were discussing Exhibit
    11434, which dealt with a discussion that had been held with Dr. Osdene
    from Philip Morris. Do you recall that?
        A. Yes, sir.
        Q. And we were talking about the portion of the document which related
    to the CTR. Do you recall that, sir?
        A. Yes.
        Q. It's down at the bottom of page two, doctor.
        A. Uh-huh.
        Q. And there was a reference there that Dr. Wakeham may be giving
    advice to the president of Philip Morris. Do you recall that?
        A. I -- I do.
        Q. Can you direct your attention to Exhibit 11586.
        A. I have it.
        Q. Now this is a memorandum dated December 8th, 1970, to J. F. Cullman
    III from Dr. Wakeham; correct?
        A. Yes.
        Q. And it deals with the, quote, "'Best' Program for CTR;" correct?
        A. Yes.
        MR. CIRESI: Your Honor, we would offer Exhibit 11586.
        MR. WEBER: No objection, Your Honor.
        THE COURT: Court will receive 11586.
    BY MR. CIRESI:
        Q. Now Mr. Cullman at the time was the president of Philip Morris;
    correct, sir?
        A. I believe so.
        Q. And in this memorandum Dr. Wakeham was discussing what had
    transpired at a November 30th, 1970 meeting of the CTR Executive Committee;
    correct?
        A. It so states.
        Q. Have you reviewed this document?
        A. No, sir.
        Q. And the question that was being asked was what kind of CTR program
    is best for the industry; correct?
        A. Correct.
        Q. And under number -- paragraph numbered one is the stated objective
    or purpose of CTR; correct?
        A. That's what it says.
        Q. And it's reported there that the purpose was "To aid and assist
    research into tobacco use and health, and make available to the public
    factual information on this subject." Correct?
        *2 A. That is what is stated.
        Q. And it is further stated that that has been interpreted narrowly so
    that CTR was providing financial support for research by scientists to
    provide data about lung cancer, heart disease, chronic respiratory ailments
    and other diseases; correct?
        A. That is what is written.
        Q. In other words, what's written is that the research was directed to
    basic research about diseases generally; correct, sir?
        A. That is what is stated.
        Q. And Dr. Wakeham then reports to the president of Philip Morris in
    paragraph two as follows: "It has been stated that CTR is a program to find
    out, quote, the truth about smoking and health, end of quote. What is truth
    to one is false to another. CTR and the industry have publicly and
    frequently denied what others find as 'truth."' Let's face it. We are
    interested in evidence which we believe denies the allegation that
    cigarette smoking causes disease. If the CTR program is aimed in this
    direction, it is in effect trying to prove the negative, that cigarette
    smoking does not cause disease. Both lawyers and scientists will agree that
    this task is extremely difficult, if not impossible."
        Now sir, from 1954 when CTR was first formed through 1970, did your
    investigation reveal that CTR, through the industry, was trying and
    interested in evidence which would deny the allegation that cigarette
    smoking causes disease?
        A. No, sir.
        Q. You do know that Dr. Little wrote that CRT's Scientific Advisory
    Board never accepted the hypothesis of the tar-guilt theory; correct?
        A. I have seen this written, yes.
        Q. Written by Dr. Little himself; correct, sir?
        A. If the document is accurate, yes.
        Q. Well do you have any reason to believe that Dr. Little, when he
    wrote that document, was lying?
        A. No, sir.
        Q. Do you have any reason to believe that Dr. Little, when he wrote
    that document, was not intending to convey the truth --
        A. No, sir.
        Q. -- to the recipient of that document?
        A. No, sir.
        Q. Now the Surgeon General, sir, has found that tar does have
    carcinogens in it; correct?
        A. Correct.
        Q. Many carcinogens; correct?
        A. Yes.
        Q. Tens of carcinogens; correct?
        A. I'm sorry, I missed your question.
        Q. Tens of carcinogens; correct?
        A. Tens of carcinogens?
        Q. Yes. Fifty, 60 carcinogens; correct?
        A. I don't know -- those are your words, Mr. Ciresi. I don't know
    whether there are tens or fifties or whatever. There are carcinogens in
    condensate of smoke.
        Q. And so yesterday when you said that the scientific community has not
    found carcinogens in tobacco smoke, that wasn't correct; was it?
        MR. WEBER: Objection, that's a misstatement of the testimony.
        Q. Carcinogens are cancer-producing; are they not?
        THE COURT: Counsel, counsel, counsel, one moment, please. Allow him to
    answer your question.
        You may answer the question asked.
        A. "Carcinogen" is the term applied to substances that can potentially
    cause cancer, but it doesn't necessarily mean that they do cause cancer. A
    carcinogen is an agent that has the potential for cellular alteration, but
    it does not necessarily follow that cancer will result from exposure to
    that given agent.
        *3 Q. But they -- they are cancer-producing particles; correct? Whether
    they do it in all cases or not, they're cancer-producing particles;
    correct?
        A. No, sir, that's not what I said. I said that they have the potential
    for causing cancer, but they --
        Q. So that --
        A. -- do not produce cancer necessarily.
        Q. Necessarily. But they may produce cancer; correct?
        A. May, in sufficient dose and sufficient length of exposure. There are
    many factors that relate to a carcinogen other than the fact that it is a
    noxious substance.
        Q. And if they may produce cancer based on the length of exposure, such
    as persons smoking over a long period of time, and in sufficient doses,
    then they are cancer-producing; correct?
        A. No, sir, that -- you're distorting what I have said.
        Q. Doctor, you just said that they may produce cancer; did you not?
        A. I said that they may, yes.
        Q. Okay. And if they then do in fact produce cancer in some people,
    then they would be cancer-producing; correct?
        A. You're distorting what I've said. And I think I said it very
    plainly, I -- I don't see any reason to go over it again.
        Q. With all due respect, sir, you did say that they may produce cancer;
    correct?
        A. I did.
        Q. All right. And I'm just asking you to assume, then, that they do
    produce cancer in a given person. Is it then a cancer-producing carcinogen,
    in your judgment?
        A. I've explained that, the difference between an absolute and a -- and
    a given -- and a -- and a possibility, and I don't know that I can explain
    it any better.
        Q. I didn't ask you about an absolute, doctor. You testified that the
    particles in smoke may produce cancer; correct?
        A. No, I didn't. I have not used the word "particle."
        Q. Well what did you use?
        MR. WEBER: Objection, Your Honor. If he wants to show him some
    testimony, he should. This is asked and answered, repetitive.
        THE COURT: I don't think we've got an answer yet.
        Q. What word did you use, doctor?
        A. "Substance."
        Q. "Substance." I'll use your word.
        And by "the substance," you mean the substance in the smoke; correct?
        A. Correct.
        Q. And you don't think that's a particle in the smoke; correct?
        A. Not necessarily.
        Q. Okay. Well can it be a particle in the smoke?
        A. There are particulate substances in smoke, but they -- not all of
    the substances in smoke are particles.
        Q. Well, are there particles in smoke that cause -- that may cause
    cancer?
        A. I don't know that.
        Q. Okay. So you just don't have the expertise to answer that question;
    correct?
        A. I don't believe anyone knows that, Mr. Ciresi.
        Q. Have you read the '64 or '81 Surgeon General's reports?
        A. Yes, sir.
        Q. Let me hand you what has been marked, sir, as Exhibit 3838.
        MR. CIRESI: May I approach, Your Honor?
        THE COURT: Yes.
            (Document handed to the witness.)
        Q. Is that the 1981 Surgeon General report?
        A. Yes, sir.
        Q. Can you turn to page 34.
        *4 A. I have it.
        Q. And sir, is there a table there that states "Major toxic agents in
    the particulate matter of cigarette smoke?"
        A. Yes.
        Q. And is there an asterisk after the title there? Do you see it?
        A. Yes.
        Q. And down at the bottom that asterisk says "Incomplete list?"
        A. Yes.
        Q. And there's also other definitions, that C denotes carcinogen; BC,
    bladder carcinogen; TI, tumor initiator, CoC, cocarcinogen; and CT, cilia
    toxic agent; and T, toxic agent.
        A. Yes.
        Q. And then if you go down this partial list of particulate matter of
    cigarette smoke, are various substances listed which are contained in
    cigarette smoke that are either carcinogens, cocarcinogens, toxic agents or
    ciliatoxic agents or tumor initiators?
        A. I see that.
        Q. And that's biologic activity; correct?
        A. Yes.
        Q. And do you understand what the meaning of "biologic activity" is?
        A. Yes, sir.
        Q. What do you understand it to mean?
        A. It means that it has some activity that may alter normal physiology
    or normal pharmacology.
        Q. It will change the cells.
        A. Correct.
        Q. And under "BioLogic activity" in this Surgeon General's report from
    1981 are listed the particulates that are cocancer -- cocarcinogens or
    carcinogens; correct, sir?
        A. That is what is listed, yes.
        Q. And do you recall yesterday that you stated as follows, "And it's"
    --
        "Question: And it's the smoke constituents" --
        MR. WEBER: We would request a reference, Your Honor.
        MR. CIRESI: I'm sorry. Page 4497.
        Q. "Question: And it's the smoke constituents which contain the tar;
    correct?
        "Answer: Correct.
        "And it's the tar which contains cancer-producing particles; correct?
        "Answer: I'm not sure about that because it's never been proven.
        "Question: You just don't know; correct?
        "Answer: We just don't know. We still don't know.
        "Question: You don't know; correct, sir?
        "Answer: No, we don't.
        "Question: I'm asking you. You do not know; correct?
        "Answer: I do not know, nor does any member of the scientific
    community."
        MR. WEBER: Objection, Your Honor, it's an improper use of the
    deposition. It's entirely consistent.
        THE COURT: Do you have a question that you can ask?
        MR. CIRESI: Yes.
        THE COURT: All right.
    BY MR. CIRESI:
        Q. Now, sir, the members of the Surgeon General's staff and those who
    worked on the Surgeon General's report were members of the scientific
    community; were they not?
        A. Yes.
        Q. Learned members of the scientific community; correct?
        A. Yes.
        Q. Esteemed members of the scientific community; correct?
        A. I suppose.
        Q. And there are other Surgeon General reports which have reported
    carcinogenic particles of cigarette smoke condensate; aren't there?
        A. Correct.
        Q. Many reports; correct?
        A. I've forgotten how many, but there are several.
        Q. And in every one of those reports there were esteemed members of the
    scientific community which contributed to those reports; correct?
        *5 A. I would agree with that.
        Q. Now can you direct your attention, sir, please, back to Exhibit
    11586, which we were on. That's the memorandum from Dr. Wakeham to the
    president of Philip Morris, Mr. Cullman. Do you recall that?
        A. Yes.
        Q. Now in this memorandum in December of 1970, Dr. Wakeham is setting
    forth various options in terms of the type of research programs that the
    CTR might follow from that point forward; isn't he?
        A. Correct.
        Q. Option A, option B and option C; correct?
        A. I see those.
        Q. And option A was to aim the program in the future at contributing to
    the search for the causes of disease; correct?
        A. That's what is stated.
        Q. And then it states certain benefits or rationales and problems with
    doing that; correct?
        A. That is so stated.
        Q. Now, that option dealt with looking at basic research as we've
    defined it; correct, sir?
        A. I'm not sure. I don't -- I don't think I understand your question.
        Q. Okay. Not smoking and health, but simply basic research, looking at
    the diseases as opposed to looking at smoking and health itself, that's
    what I'm referring to. You understand that dichotomy?
        A. No, sir, and I -- what you're asking me is inconsistent. Basic
    research doesn't look at the disease process, but rather the underlying
    alteration of the norm that predisposes to disease.
        Q. It doesn't look at causative agents; does it?
        A. Does not look at causative agents, except as they relate to the
    fundamental cellular process.
        Q. So it looks at the cellular process, and that's what option A was
    being directed to; correct, sir?
        A. I don't understand your question. I think it is -- it says "Aim the
    program at contributing to the search for causes of disease, especially
    those diseases alleged to be caused by smoking."
        Q. Right.
        A. Well, you could aim the program in one of several ways, you could --
    you could go specifically to chemical research, which is what Dr. Wakeham
    wanted to do, or you could go to disease itself and study it
    epidemiologically, or you could go to the fundamental research which would
    lead you to understand -- better understand the nature of the -- of the
    disease process.
        Q. And that's --
        He's referring to the latter here, if you go on to the next page --
        A. I'm not sure he is.
        Q. Well, why don't you go to the next page and take a look, because
    he's comparing what the CTR might do versus the national health research,
    which is looking at cancer generally. Do you see that?
        A. You'll have to cite it for me, please, sir.
        Q. Sure. "Problem 1. In a total national health research of 1,000
    million dollars," which is a billion dollars, "what impact will our
    contribution have? Is it even worth PR value?" Do you see that?
        A. I see that.
        Q. Okay. So he's referring to that basic research; is he not, sir? If
    you know.
        A. I don't know that.
        Q. Okay. Option B, can you look at option B, the second option.
        A. Yes, sir.
        *6 Q. Here he's saying to "Use the CTR program as a means for
    establishing -- of establishing expert scientific witnesses who will
    testify on behalf of the industry in legislative halls, in litigations, at
    scientific meetings, and before the press and public;" correct?
        A. That's what it states.
        Q. And that's what CTR had been doing up to that point; hadn't it?
        A. No, sir.
        Q. You don't think so?
        A. No, sir.
        Q. Has your --
        Did you investigate that to determine one way or the other?
        A. I didn't investigate it specifically, but I'm aware of the
    activities of CTR.
        Q. Sir, did you investigate the activities of the CTR between 1954 and
    1970 to determine that?
        A. I am aware of the activities. I didn't -- I didn't go into any
    particular investigation.
        Q. Okay. Can you see what Dr. Wakeham said back in 1970 about what that
    program had done?
        A. I see what you have read to me, yes.
        Q. "If this objective is the purpose of CTR, then a very limited,
    select grant program should be adequate to do the job. There would be
    little need for research contracts or an extensive staff in headquarters.
    One might also question how long it would take for the witnesses to acquire
    the 'taint' of industry money.
        "I cannot judge the litigative value of this approach, but I am
    impressed by the legislative testimony we are able to muster at
    Congressional hearings. On the other hand, my contacts with scientists
    outside the Industry do not reveal an extensive awareness of, or
    appreciation for, the CTR program. It would be interesting to try to
    measure such awareness by the public, the medical profession, or by
    scientists at large. If after 16 years" --
        And he's referring to the time the CTR was formed; correct, sir?
        A. I would judge that, yes.
        Q. Okay. "If after 16 years and 20 million dollars such a study comes
    up with a blank, as I think it would, then we can only conclude that CTR as
    present -- presently organized and operated is not convincing the public
    that we are objectively seeking the 'truth' or 'establishing good faith in
    the scientific community."' Now did I read that correctly?
        A. You read it correctly. It's Dr. Wakeham's opinion.
        Q. And Dr. Wakeham was involved through Philip Morris with the CTR back
    at that time; correct?
        A. As I understand it, yes.
        Q. And Mr. Cullman was heavily involved with the CTR back at that time;
    correct?
        A. As I understand it, yes.
        Q. And in his conclusion Dr. Wakeham suggests that "It would seem
    appropriate to explore during the next year or two how CTR might be serving
    the needs of the cigarette industry;" correct?
        A. That is what is written.
        Q. And it goes on to say, "The disparity of opinion on this subject
    within the Industry indicates that the answer to the question is not
    obvious. If we (members of the Industry) cannot convince ourselves of a
    definite answer to the question 'how,' then we might very well decide it is
    wasted effort. If so, CTR should be terminated." Correct?
        *7 A. That is what Dr. Wakeham wrote.
        Q. Now Dr. Wakeham sent this memorandum not only to the president of
    the company, but he also sent it to Mr. Millhiser, who was the vice
    chairman of the board at that time. Are you aware of that, sir?
        A. I'm not aware of that, but I accept that.
        Q. Okay. And are you aware that Mr. Goldsmith, the next member -- or
    carbon-copy recipient of this, was a senior executive who was to become
    president of Philip Morris?
        A. I accept that.
        Q. And Mr. Smith, who's listed, was the general counsel. Do you recall
    that?
        A. No, sir. But I accept that.
        Q. And Mr. Hugh Cullman was a senior vice-president. Are you aware of
    that?
        A. I accept that.
        Q. And Mr. Bowling was a senior vice-president and also on the board of
    directors of Philip Morris. Will you accept that?
        A. I know Mr. Bowling.
        Q. You do. So you know that he was a senior vice-president and on the
    board of directors; correct?
        A. Yes.
        Q. And Dr. Fagan was a senior scientist; correct?
        A. I do not know Dr. Fagan.
        Q. And you know that Dr. Osdene was a senior scientist; do you not?
        A. I've been made aware of that, yes.
        Q. Now from 1970 forward CTR continued to be controlled at its highest
    levels by the lawyers; didn't it?
        A. No, sir. At no time was it controlled by the lawyers.
        Q. Well they didn't select their projects against any scientific
    criteria; did they?
        A. All of the projects selected by the Scientific Advisory Board of The
    Council for Tobacco Research were selected on scientific merit.
        Q. Were they selected against specific scientific goals?
        A. The specific goals of research projects identified for funding by
    the Scientific Advisory Board were quite simple: first, merit; second,
    innovation; third, innovative approaches to research; and fourth, relevance
    to fundamental disease processes, particularly those associated with
    smoking and health.
        Q. May I have that last one, sir? I'm sorry, the last one you just gave
    us.
        A. Relevance to basic disease processes, particularly those diseases
    associated with smoking and health.
        Q. Okay. So they weren't selected for purposes such as public
    relations, political positions and positions for litigation.
        A. No, sir. Never.
        Q. Never.
        Can you direct your attention, sir, to Exhibit 10177, which is in
    volume one.
        A. I have it.
        Q. This is a confidential memorandum from Mr. C. H. Judge from A. W.
    Spears; correct?
        A. It so states, yes.
        Q. Dated June 24th, 1974; correct?
        A. Correct.
        Q. Now Dr. Spears, you said yesterday -- I think you said -- was a very
    able scientist.
        A. Yes.
        Q. Was that your words?
        A. Yes.
        Q. Truthful man?
        A. Yes.
        Q. Honorable man?
        A. Yes.
        MR. CIRESI: Your Honor, we'd offer Exhibit 10177.
        MR. WEBER: No objection to this, Your Honor. But we don't know yet
    whether the witness has ever seen it for foundation purposes.
        MR. CIRESI: It's a Lorillard document produced from their files.
        *8 THE COURT: All right. The court will receive 10177.
    BY MR. CIRESI:
        Q. Now you know Dr. Spears; don't you?
        A. Yes, I do.
        Q. He's a Ph.D.; correct?
        A. Yes.
        Q. He's a chemist.
        A. Yes.
        Q. And he's the present CEO of Lorillard; correct?
        A. Correct.
        Q. Do you know if he testified in Congress in 1994?
        A. I think he did, yes.
        Q. Did he testify in Congress a few weeks ago?
        A. I don't know. I think he did.
        Q. Now we see here that this is a confidential memo to Mr. Judge;
    correct?
        A. So states, yes.
        Q. And Mr. Judge at that time was the CEO of Lorillard; correct?
        A. I accept that.
        Q. And he had been the head of the CTR; correct?
        A. I don't recall that.
        Q. Do you know if he served on the board of directors of the CTR?
        A. I think he did.
        Q. And Dr. Spears has served on the board of CTR; correct?
        A. He does, yes.
        Q. He does today; correct?
        A. Yes.
        Q. So you know him quite well; don't you?
        A. I know him in -- in the business context. Our board meets twice a
    year for an hour each time.
        Q. And you've discussed whether cigarette smoking causes diseases with
    him; haven't you?
        A. Not specifically, no.
        Q. You've never had those discussions with Dr. Spears in the 11 years
    that you've been with the CTR?
        A. We've never had that specific conversation.
        Q. Never.
        Have you ever had that specific conversation with any members of the
    board of CTR in the 11 years you served in that position?
        A. We've had numerous conversations dealing with fundamental causes of
    cancer, particularly lung cancer, but we've never addressed the specific
    issue of cigarette etiology.
        Q. So you -- you've never specifically discussed with any member of the
    board of CTR whether smoking causes cancer; correct?
        A. Well we've discussed the subject, Mr. Ciresi, but I -- you asked me
    a specific question, had I discussed with Dr. Spears or with other members
    of the board the specific issue of cigarettes causing lung cancer. No, we
    haven't -- I haven't addressed that topic, simply because it hasn't come
    up. We've been addressing much more fundamental scientific problems.
        Q. In 11 years it's never come up in the organization funded by the
    industry with any member of the board; correct?
        MR. WEBER: Objection, Your Honor, asked and answered.
        THE COURT: You may answer that.
        A. The subject -- the subject of lung cancer obviously is of
    significant interest to our sponsors and to the CTR and the Scientific
    Advisory Board, and yes, we have discussed the broad, general subject, but
    as far as the specific question that you asked me, no, we haven't had a
    specific conversation to that effect.
        Q. That's what I asked you. That specific subject matter, smoking
    causing cancer, you've never had a specific discussion with any member of
    the board in 11 years; correct?
        MR. WEBER: Same objection, Your Honor.
        THE COURT: You may answer that.
        THE WITNESS: Your Honor, I've answered it three times.
        *9 A. The answer is no, we -- we haven't --
        Q. Thank you.
        A. -- addressed that specific point.
        Q. Thank you.
        Now in this memorandum Dr. Spears says, "Before attempting to discuss
    CTR, a brief review of the organizations contributing to research into
    tobacco and health seems to be appropriate." Do you see that?
        A. I do.
        Q. And he talks about "Harvard Project;" is that right?
        MR. WEBER: Objection, Your Honor. Could we first determine whether the
    witness has ever seen this document before? There's no foundation laid.
        THE COURT: Okay. I think you should inquire.
    BY MR. CIRESI:
        Q. This was one of the documents that was provided to your counsel to
    be used in your testimony. You're aware of that, sir?
        A. I'm aware of that.
        Q. Okay. And you've seen it; haven't you?
        A. I have seen this.
        Q. Thank you.
        And in this memo Dr. Spears says, "Before attempting to discuss CTR, a
    brief review of the organizations contributing to research into tobacco and
    health seems to be appropriate." Correct?
        A. That is what he states, yes.
        Q. And then he talks about various research that's being done by
    various organizations; correct?
        A. I see that.
        Q. Including down, under seven, The Tobacco Research Council, which is
    over in the United Kingdom; correct?
        A. Yes.
        Q. And we've seen memoranda from them --
        A. Yes.
        Q. -- during the course of your testimony; correct?
        A. Yes.
        Q. And we've seen in those memoranda what members of the industry have
    said about CTR; haven't we?
        A. Yes.
        Q. Now, can you direct your attention over to page three, and I want to
    direct your attention down to the last paragraph.
        "Historically, the joint industry funded smoking and health research
    programs have not been selected against specific scientific goals, but
    rather for various purposes such as public relations, political relations,
    position for litigation, et cetera." Do you see that, sir?
        A. I see that.
        Q. And that is Dr. Spears saying that; correct?
        A. I judge that to be; it's part of his memorandum.
        Q. And you said, I believe -- and let me know if I miswrote this --
    that  "No, sir, never" have the programs been directed to those purposes;
    didn't you?
        A. I did. And I would call your attention to the fact that Dr. Spears
    is speaking here about the joint industry funded projects, not CTR.
        Q. Sir, who funds CTR?
        A. The industry. But --
        Q. And do they jointly fund it based upon their percentage of the
    market for the preceding year?
        A. Yes.
        Q. He goes on to state, does he not, "Thus, it seems obvious that
    reviews of such programs for scientific relevance and merit in the smoking
    and health field are not likely to produce high ratings. In general, these
    programs have provided some buffer to public and political attack of the
    industry, as well as background for litigious strategy. However, the public
    and political attitudes toward smoking has seriously decayed with respect
    to the tobacco industry, and scientific and political attack has become
    intense, with efforts at forced product modification underway. Thus, we see
    the litigation threat of much more importance than that of legislation --
    legislative and public acceptance of cigarette smoking. This suggests that
    goals should be defined more on the basis of scientific aspects, public
    relations and the programs leading to such goals coordinated more by
    business on scientific management." Do you see that?
        *10 A. I do. You --
        Q. And he's talking about in this program -- or in this memorandum the
    CTR and how to reorganize it; isn't he, sir?
        A. Mr. Ciresi, I call your attention to the fact that you misread the
    sentence that reads, "Thus, we see the litigation threat of much lesser
    importance," not "more importance."
        Q. Did I say "more?"
        A. Yes, sir.
        Q. Oh. Let me re -- restate that. "Thus, we see the litigation threat
    of much lesser importance than that of the legislative and public
    acceptance of cigarette smoking. This suggests that goals should be defined
    more on the basis of scientific aspects, public relations and the programs
    leading to such goals coordinated more by business on scientific
    management."
        Did I read it correctly now?
        A. Yes, sir.
        Q. And before that time CTR and the industry was more concerned with
    litigation; weren't they, sir?
        A. Industry was clearly concerned about it. CTR was concerned with
    science, and this in fact is a plea on the part of Dr. Spears for a more
    business-like approach to the scientific aspects of research.
        Q. Yes. What he's saying is that now, with CTR, we should redirect and
    refocus it away from litigation and PR and more toward scientific and
    public relations because that's where the attack is coming from; isn't that
    right, sir?
        A. No, sir.
        Q. You don't agree with that.
        A. No, I do not, because he doesn't mention CTR in this paragraph at
    all.
        Q. The whole --
        A. And I would call your attention, Mr. Ciresi, to the fact that Dr.
    Spears is talking about a wide variety of research projects, they are
    listed one through 13, and they are outside of CTR. In item 14 he talks
    about CTR research which deals with epidemiology, bioassay development,
    genetics, primarily aimed at tumorigenesis -- the beginning of tumors --
    and chronic pulmonary disease, but some activity in cardiovascular disease
    and smoking motivation.
        Q. Sir --
        A. He defines the CTR program --
        Q. Yes.
        A. -- and he is addressing the question of the other programs. He
    mentioned -- he does not mention CTR at all in this paragraph in question.
        Q. Did the --
        A. And I interpret this as a plea for more support of scientific
    research.
        Q. Did the Committee of Counsel run the Harvard program?
        A. I have no idea.
        Q. Do you know what the Committee of Counsel was?
        A. Not really.
        Q. Can you go on to the next page. "We see no way to coordinate without
    an organization and responsibility to coordinate.
        "The writer" --
        And the writer is Dr. Spears; correct?
        A. Correct.
        Q. -- "believes that only two mechanisms exist for this coordination: a
    working committee of industry representatives, and appointment of one
    individual for that purpose, with overall program and fiscal
    responsibility.
        "In the past, and currently, the Committee approach is in effect being
    used, paren, Committee of Council, close paren. However, representatives of
    the Committee generally -- generally lack the background to bring about
    scientific coordination and the time to bring about management
    coordination."
        *11 Do you see that, sir?
        A. I see that.
        Q. And he was talking about the Committee of Counsel which controlled
    the CTR and TI and others; wasn't he?
        A. No, sir.
        Q. Okay. Then --
        A. They --
        Q. -- can you direct your attention, then --
        MR. WEBER: Your Honor, the witness was cut off again.
        THE COURT: Allow the witness to complete his answer.
        Q. You said "No, sir;" didn't you?
        A. I said "No, sir."
        THE COURT: Is your answer complete?
        THE WITNESS: Your Honor, I think there's a misprint here. I think
    Committee of Council is misspelled, I think it's Counsel, C-o-u-n-s-e-l,
    meaning a committee of attorneys. But I don't know that. But there was
    never any Committee of Counsel for tobacco research other than its own
    Executive Committee that we've -- its own board of directors that we've
    talked about previously.
        Q. Well, let's go take a look at Exhibit 10165, sir.
        A. I have it.
        Q. This is a memo dated 4/21/78, it's already in evidence, "Scientific
    Research Liaison Committee." This is by Mr. Judge, who was the president of
    CTR -- excuse me, president of Lorillard.
        And he was on the board of directors of CTR from '74 to 1984; correct,
    sir?
        A. I accept that.
        Q. Okay. And this is another document that you've reviewed; correct?
        A. No, sir, I have not seen this document.
        Q. Well, this was presented and given notice to be used. Do you
    understand that?
        MR. WEBER: Objection, Your Honor. The implication is that there's some
    obligation to show the witness all the documents that Mr. Ciresi lists.
        THE COURT: It's an appropriate implication. That's why we have notice,
    counsel.
    BY MR. CIRESI:
        Q. Do you know if this was noticed, sir? "Yes" or "no."
        A. I -- I don't know.
        Q. Okay. Now let me direct your attention to --
        Well let me ask you to assume this, that this is written by Mr. Judge
    and he was on the CTR board.
        A. I -- I don't see any signature to this. I --
        Q. Sir --
        A. I can't accept it was written by Mr. Judge.
        Q. Well --
        A. It may have been. I don't deny that it could have been, but --
        Q. Can you accept it if it was represented by the defendants,
    specifically Mr. Spears, that it came from his files? Can you accept that,
    sir?
        A. I don't know that. I accept what you tell me, Mr. Ciresi.
        Q. Thank you.
        Now, in this memorandum Mr. Judge states, "We have again 'abdicated'
    the scientific research directional management of the Industry to the
    'Lawyers' with virtually no involvement on the part of scientists or
    business management side of the business." Do you see that?
        A. I see that.
        Q. And do you see down in the next paragraph, "Lorillard's management
    is opposed to the total industry future being in the hands of the Committee
    of Counsel." Do you see that?
        A. I do.
        Q. And now it's spelled the way you said it should have been spelled in
    Spears' memo; isn't it? It's s-e-l. Is that right?
        A. Yes.
        Q. So you knew about a Committee of Counsel; didn't you?
        *12 A. Well I only have a passing --
        I've never had any dealings with a Committee of Counsel. I don't know
    that it even functions at this time. But I know that the lawyers for the
    sponsor companies do communicate, and I think the proper terminology is
    "Committee of Counsel."
        Q. Did Mr. Spears ever tell you, in the 11 years you've been on the
    board, that he and Judge had had a conversation regarding the fact that the
    industry had abdicated its scientific research to the Committee of Counsel?
        A. No, sir.
        Q. Never had any discussion regarding that; is that right, sir?
        A. I've had many discussions with Dr. Spears, but I've not had a
    discussion of that point.
        Q. Any discussion about the fact the lawyers were controlling research?
        A. No, sir.
        Q. Never had that conversation.
        A. No, sir.
        Q. Did you have that conversation with any members of the board of
    directors of CTR?
        A. It was never necessary, Mr. Ciresi.
        Q. Now sir, do you know that special projects were established at CTR
    in the sixties?
        A. Yes, sir.
        Q. And those special projects were controlled by the lawyers?
        A. No, sir.
        Q. Do you know what the special projects were for?
        A. Special projects were scientific research projects which were
    initiated at the instigation of the sponsor companies by independent
    scientists. CTR did not initiate those projects and they were not projects
    of the Scientific Advisory Board, but CTR was used as the conduit for
    funding the special projects that the sponsor companies wanted done.
        Q. Were there lawyer special projects and CTR special projects?
        A. I think counsel was probably involved in the company's decision
    about whether to support a given project or not, but the funding came from
    the sponsor companies.
        Q. I know where the funding came from, sir, but the question is this:
    Were there lawyer special projects?
        A. No, sir, not by my definition. I'm -- I'm certain that counsel
    participated in the company's decisions about which research they would
    sponsor, but they were company-sponsored projects.
        Q. So they were company-sponsored projects implemented through the
    lawyers; is that right?
        A. No, sir, I didn't say that. I don't know that.
        Q. So you don't know one way or the other; correct?
        A. I --
        It is my understanding that they were company-sponsored projects.
        Q. But sir, you testified that you don't guess, you only know or I
    don't know. Isn't that what you said?
        A. I know that they were company-sponsored projects.
        Q. And do you know if acting on behalf of the companies in sponsoring
    those projects were the lawyers? Do you know that?
        A. I don't know that. I assume that the lawyers for the company may
    have participated in decisions.
        Q. Well you've heard that the lawyers made those decisions; haven't
    you?
        A. No, sir.
        Q. Can you direct your attention to Exhibit 10197, please.
        A. I have that.
        Q. This is another document that was -- notice was provided to you,
    sir. Did you review this?
        *13 A. I think I have seen this in the distant past, but I'm not sure.
        Q. All right.
        A. I'm not certain of the origin of the document.
        Q. By the way, Dr. Glenn, let me ask you this: We've been given notice
    of some 400 documents that will be used with you in your direct testimony
    by counsel. Have you reviewed all those documents?
        A. No, sir. I've been very busy administering a research program and
    dealing with day-to-day operations, and the review of documents that are 40
    and 50 years old really hasn't been at the top of my list.
        Q. Hmm. Did the lawyers show you any of the 400 documents that they
    gave us notice that they might use with you?
        A. Oh, yes.
        MR. WEBER: Objection, Your Honor, it's an improper question.
        THE COURT: Gentlemen, will you approach the bench, please.
    BY MR. CIRESI:
        Q. Now doctor, I know you're busy doing what you do, but do you know
    how many of the documents that you did review?
        A. I can't tell you the number, Mr. Ciresi, but many.
        Q. Okay. That's over the last few days?
        A. No, no, extending back over several months.
        Q. Now --
        A. I'm sure that I've forgotten some of them that I have reviewed, as
    you might expect.
        Q. Very natural, sir. I understand that.
        Now, this is one of the documents you reviewed?
        A. I think so. As I read through it, I think I've seen this.
        Q. Okay. Now these are Mr. Judge's notes. Are you aware of that, sir?
        A. No, sir. It -- it is not dated and it is not signed, and I really
    could not determine the origin.
        Q. It's been -- it's been represented to us by the defendants that
    that's whose notes they are. Were you told that?
        A. No, sir.
        MR. CIRESI: Your Honor, we'd offer Exhibit 10197.
        MR. WEBER: No objection, Your Honor.
        THE COURT: Court will receive 10197.
    BY MR. CIRESI:
        Q. Now this relates to a CTR meeting; correct?
        A. I -- I interpret that to mean it is a meeting about CTR, because
    these are not only representatives from CTR, but also outside people.
        Q. Well, Mr. Judge was on the CTR board of directors from 1974 to 1984;
    correct, sir?
        A. I accept that.
        Q. Okay. Mr. Yeaman, after he retired from Brown & Williamson as their
    lawyer, went and took a position of chairman of CTR; correct?
        A. That's correct.
        Q. And Dr. Gardner was a CTR scientific director; correct?
        A. Yes.
        Q. Did he succeed Dr. Little?
        A. Yes.
        Q. So we know it's some time after 1971; correct?
        A. I would accept that.
        Q. And we know that, as you just testified, that Mr. Judge was on the
    board from 74 to '84 of CTR; correct?
        A. I accept that.
        Q. Okay. And Mr. Hockett was from CTR; correct?
        A. Yes.
        Q. Okay. And you know who Mr. Stevens is?
        A. I think so.
        Q. Okay. And who was he, sir?
        A. If this is Mr. Arthur Stevens, he is vice-president of Lorillard.
        Q. General counsel; correct?
        A. General counsel, yes.
        Q. Now, can you direct your attention down to the bottom portion. Do
    you see the notation next to the name "Yeaman?"
        *14 A. Yes.
        Q. "Difficulty in justifying budget increase." Well I shouldn't say
    that. It says i-n-c-r. Would you take that to mean "increase," sir?
        A. Yes.
        Q. Okay. "Difficulty in justifying budget increase - 'We're trying to
    prove a negative."' Do you see that?
        A. I see that.
        Q. That means that they were trying to prove that smoking didn't cause
    lung cancer; doesn't it?
        A. I'm not sure of that.
        Q. But you -- you did see that reference in a previous memo we just
    looked at about proving the negative; didn't you?
        A. Yes.
        Q. And then it goes on to say as follows: "'CTR is the best & cheapest
    insurance the tobacco industry can buy and without it, the Industry would
    have to invent CTR or would be dead."' See that?
        A. I do.
        Q. Now do you recall now seeing this memo?
        A. Yes. I -- as I told you, I think I've seen -- I think it was
    sometime back.
        Q. Did you go and ask any of these gentlemen, if they're still around,
    what was meant by that?
        A. No, sir.
        Q. Did you ask anybody to ask any of those gentlemen?
        A. No, sir.
        Q. Do you know if the industry felt that CTR was the best and cheapest
    insurance it could buy in order to keep itself from being dead?
        A. I don't know that.
        Q. Do you know if the industry was involved in a united front in
    funding the CTR to make sure they would have the cheapest industry so they
    wouldn't be dead?
        A. I don't understand your question.
        Q. Did they combine together and work in combination to fund CTR?
        A. Yes, and -- and they have from the very beginning.
        Q. As a concert of activity; correct?
        A. As a concert of activity?
        Q. Yes.
        A. Well I don't understand the use of the term. CTR has always been
    sponsored by the tobacco industry.
        Q. They worked in concert to fund it; correct?
        A. Well "concert," they were joint sponsors of CTR.
        Q. Okay. And that means they worked in concert; correct?
        A. Well, yes, that's fine.
        Q. Now did other lawyers who retired from their companies become the
    head of CTR?
        A. I'm not sure of the background of each of the chairmen of CTR. There
    were a number of them. They -- they rotated at regular intervals in the
    early days.
        Q. They revolved through; didn't they?
        A. I'm sorry?
        Q. They revolved through, didn't they, the lawyers?
        A. I wouldn't say they revolved, because their tenure would be two or
    three years, as I recall.
        Q. Cy Hetsko from American, he was a director of CTR; wasn't he?
        A. Who, sir?
        Q. Hetsko.
        A. Hetsko was a director of CTR but not a chairman. You asked me about
    chairmen, I think.
        Q. And some of the lawyers were not only chairmen of CTR, they were
    also on the board of directors of CTR; correct?
        A. Yes.
        Q. Mr. Ramm was the president of CTR; wasn't he?
        A. I've forgotten the terminology in those early days. I think that's
    probably correct.
        Q. And he was the fellow who was mentioned in Judge's memo that we just
    looked at who was controlling CTR; wasn't he?
        *15 A. I'm sorry, I --
        Can you give me a reference there?
        Q. Sure. I believe it's Exhibit 10165, sir. Do you see here where Mr.
    Judge, in paragraph number two, wherein he's talking about the industry's
    future being in the hands of the Committee of Counsel, he says, "it's
    reminiscent of the late '60s when Ramm's group ran TI, CTR and everything
    else involved with Industry's public posture." Do you see that?
        A. I see it as it's written. I don't accept the validity of that.
        Q. Well this was written, sir -- and I represent to you -- by Mr.
    Judge. Do you understand that?
        A. You have told me that, yes, sir.
        Q. Okay. And it was written --
        Would you accept this? It was written at a time when he didn't think it
    was going to be discovered in litigation.
        MR. WEBER: Objection, Your Honor, it's argumentative and improper.
        THE COURT: Sustained.
        Q. Do you know if he intended to publish this to the public?
        A. I have no idea.
        Q. Do you think he voluntarily sent this out to the lawyers for the
    state of Minnesota?
        MR. WEBER: Objection, Your Honor, same objection.
        THE COURT: Sustained.
        Q. Do you know if he voluntarily sent this?
        MR. WEBER: Objection, Your Honor, it's argumentative, and it's
    violative of the court's ruling.
        THE COURT: Sustained.
        Q. Now Mr. Ramm was the former general counsel of RJR; correct?
        A. I -- I believe that to be correct, Mr. Ciresi. But this is from an
    era that I have no personal involvement.
        Q. And that's my point, sir. So you don't know whether this is accurate
    or not, what Mr. Judge wrote; correct?
        A. I don't know that any of this is accurate. These are somebody's
    notes, that's all I can tell.
        Q. Okay. And you do know that Mr. Ramm was the chairman of CTR from
    1971 to 1975, don't you, based on your review of the history?
        A. I believe that's true, yes.
        Q. Can you direct your attention, sir, to Exhibit 11501.
        A. I have that, Mr. Ciresi.
        Q. Now, I believe you said the special projects were started sometime
    back in 1965, mid -- mid-'60s; is that fair?
        A. I didn't say that, but I think that's correct.
        Q. Now Liggett participated at times in the special projects; didn't
    they?
        A. I don't know.
        Q. Can you direct your attention, then, to Exhibit 11501. Do you see
    that this is a Liggett memorandum from -- the initial is F.P.H., and I'll
    represent to you that that's Mr. Haas, the general counsel. Do you recall
    he being the general counsel?
        A. Yes.
        Q. Okay. It's from Mr. Haas to Mr. Harrington, who was the president of
    Liggett; correct?
        A. Correct.
        Q. And it's dated February 2nd, 1971; correct?
        A. Yes, sir.
        Q. And it deals with a proposal on research dealing with immunologic
    aspects of cancer; correct?
        A. Correct.
        MR. CIRESI: Your Honor, we'd offer Exhibit 11501.
        MR. WEBER: No objection, Your Honor.
        THE COURT: Court will receive 11501.
    BY MR. CIRESI:
        Q. Now sir, in reviewing the history of CTR, did you ascertain that one
    of the special projects that was funded was at Washington University?
        *16 A. Yes, as a matter of fact.
        Q. And that's in St. Louis; correct?
        A. Correct.
        Q. Okay. And if you look at this memorandum, you'll see in the first
    paragraph that Mr. Haas was referencing a proposed project at Washington
    University; correct?
        A. Yes.
        Q. And you recall that the special project at Washington University
    dealt with the immunologic health aspects of cancer?
        A. I would have to refer to our list of special projects to confirm
    that specifically, but I accept that.
        Q. Okay.
        A. The special projects were accomplished in some of the most
    distinguished universities and medical centers in the country, of which
    Washington University is one.
        Q. Thank you, sir.
        Now can you direct your attention to the second paragraph. It's set
    forth there that the project would be five -- a five-year project; correct?
        A. Correct.
        Q. And it was going to be 400,000 dollars an annum; correct?
        A. That is so stated.
        Q. And Liggett's share would be 32,000 dollars a year; correct?
        A. It so states.
        Q. And Mr. Haas here references the fact that that would be what
    Liggett's contribution is if all the other companies participated; correct?
        A. It so states.
        Q. And he also states that Reynolds, Brown & Williamson, Philip Morris
    and Lorillard had already approved it; correct?
        A. Correct.
        Q. And he says that Mr. Hardy expects the approval of American in the
    near future; correct?
        A. I read that, yes.
        Q. And do you know who Mr. Hardy was?
        A. Mr. Hardy was one of the attorneys for American Tobacco.
        Q. An outside lawyer; correct?
        A. I believe so.
        Q. Is that Shook, Hardy & Bacon?
        A. I believe so.
        Q. Long-time lawyers for the tobacco industry?
        A. Yes, I believe so.
        Q. Okay. They're representing some of the defendants in this case?
        A. I think so.
        Q. And Mr. Hardy expected the approval of American in the near future;
    correct?
        A. It so states.
        Q. Now can you look at the next paragraph, sir, where Mr. Haas reports
    as follows: "It seems to me that one of the principal reasons we resigned
    from CTR is that it was shooting with a blunderbuss instead of a rifle. My
    analysis of this project and discussions with Dave Hardy indicate that the
    project is designed to attack the disease itself as the project is in no
    way to be correlated with the smoking habits of the persons concerned."
        Do you see that?
        A. I read that, yes.
        Q. And you understand that to mean that this study would not look at
    smoking at all; correct?
        A. I -- it says "in no way correlated with the smoking habits of
    persons concerned."
        Q. Okay. And can you turn to the last page, then, of this document,
    sir, where Mr. Haas reports the following: "I believe that this project
    warrants our serious consideration. We have contributed for seven years to"
    --
        Is that AMA?
        A. I believe it to be.
        Q. -- "AMA-ERF at the rate of 156,000 dollars a year and unhappily very
    little has inured to our benefit. I repeat that this seems to be shooting
    with a rifle and warrants our serious consideration. I do not see how it
    could ricochet to our detriment since the smoking habit has no part in the
    study and, as I said at the outset, the project is not involved in finding
    causation." Do you see that, sir?
        *17 A. I see that.
        Q. Now, the special projects and other research at CTR were in fact
    directed so that they did not ricochet to the detriment of the industry;
    correct?
        A. No, sir.
        Q. Not at all.
        A. No, sir.
        Q. And projects were not selected so that they weren't involved in
    finding causation; is that right?
        A. No, sir, that's not correct. The science supported by CTR under the
    guidance of the Scientific Advisory Board was directed toward merit of the
    project and toward better understanding of fundamental disease processes,
    as I've explained previously.
        Q. Well sir, over 80 percent, over 80 percent of the CTR grant
    recipients have indicated in surveys that none of their research, current
    or past, examined the health effects of smoking; isn't that right?
        A. No, sir, that's incorrect. The figures you're citing are from a very
    superficial survey of former grantees done by an epidemiologist, and the
    figures are incorrect. In the first place, the response from the grantees
    was scanty, and to draw the inference that you're drawing is really
    extrapolating inadvisedly.
        Q. Well --
        A. Furthermore, the question that was asked was -- in -- in that survey
    was: "Does your research relate directly to smoking?" And the -- and the
    honest answer on the part of the investigators would have to be no, because
    they were working on fundamental disease processes.
        Q. Right. They weren't working on smoking; correct, sir?
        A. Yes, we were, because -- they were, because understanding
    fundamental disease process is really going to be the key to understand the
    diseases that are associated with smoking.
        Q. "Does your research relate directly to smoking? And the honest
    answer on the part of the investigators would have had to be no." Is that
    what you said?
        A. Yes.
        Q. Now in that survey over 80 percent of the respondents said that;
    correct?
        A. In that survey, which is subject to a great deal of criticism.
        Q. Well --
        A. And I think you've taken my statement out of context. I explained
    why they would say no.
        Q. Sir, when that survey was conducted, it went out to the members of
    the Scientific Advisory Board of the CTR; correct?
        A. I believe so.
        Q. And some of those members refused to respond; correct?
        A. I don't know who responded and who did not.
        Q. Well this survey took place during the time that you were with the
    CTR; didn't it?
        A. Yes.
        Q. And a letter went out from the CTR to those Scientific Advisory
    Board members; didn't it?
        A. Correct.
        Q. And you urged the people not to cooperate; didn't you?
        A. I don't believe I used those -- those terms, but I pointed out to
    them that this was a very superficial sort of survey.
        Q. Well, whether you used exactly those words, that was the import;
    correct?
        A. No, sir. I'm sure that the words speak for themselves. I don't have
    a copy of the letter at hand.
        Q. Sir, in 1993, would it be fair to state that approximately 10 of the
    296 studies in the CTR index had anything to do with tobacco?
        *18 A. That would be inaccurate, because we have focused on basic
    research that leads to better understanding of the diseases that are
    associated with smoking, so the 10 projects in which tobacco is mentioned
    just happened to be obvious.
        Q. Can you direct your attention to Exhibit 4700, which is your
    testimony in front of the Subcommittee of the Health and the Environment.
        A. Do I have that?
        Q. Yes. It is in volume number one.
        THE REPORTER: Is that 4700, Mr. Ciresi?
        MR. CIRESI: 4700.
        MR. WEBER: Your Honor, if I -- if I could ask, we don't have -- none of
    the defendants have that on their designation list.
        MR. CIRESI: Should be on.
        THE COURT: Why don't we take a short recess at this time and make sure
    that defendants have that.
        MR. WEBER: Thank you.
            (Recess taken.)
     
        THE CLERK: All rise. Court is again in session.
            (Jury enters the courtroom.)
        THE CLERK: Please be seated.
        THE COURT: Counsel.
        MR. WEBER: I can't remember where we were right now, Your Honor, on the
    Exhibit 4700 issue.
        MR. CIRESI: We're right there.
        MR. WEBER: If we're there, then -- and if the court would like to hear
    from me, I'm prepared to do that.
        THE COURT: Yes.
        MR. WEBER: Okay. I think that what we figured out over the break is
    that 4700 was not predesignated for Dr. Glenn's testimony. What was
    predesignated is marked as 3419. They are two separate documents. One of
    them is about a 400- some-page transcript of hearings before a House
    committee. That's the one that is not designated, 4700. The one that was
    designated is 3419, which is the portion of that hearing that includes Dr.
    Glenn's testimony.
        So with respect to 4700, I would object because it's filled with
    hearsay and other statements and other testimony, et cetera, so I would
    object to that one. Plus it wasn't predesignated.
        With respect to 3419 --
        Do you want me to go ahead and deal with that?
        MR. CIRESI: May I respond, Your Honor?
        THE COURT: All right, go ahead.
        MR. CIRESI: We may not have to introduce the exhibit. We provided 4700
    because it is the entire proceeding in the event counsel would suggest that
    3419 may have been taken out of context, so we provided 4700 so the doctor
    would have the entire proceeding there. We're going to go to that portion
    of the proceeding which was his testimony, which is 3419. Depending upon
    his testimony here in court, we may not enter the exhibit at all. So I
    think we can deal with it as we proceed with the questions. But 3419, which
    was designated, includes a portion of 4700, but he now has it all in the
    event he wanted to look at somebody else's testimony.
        THE COURT: All right. Why don't we go ahead, then, see --
        As we go along, you can make your objection, if necessary, if it's
    going to be actually introduced.
        MR. WEBER: So they'll offer -- the motion to introduce Exhibit 4700 is
    withdrawn then?
        MR. CIRESI: I never offered 4700, I simply directed his attention to
    4700.
        THE COURT: Okay.
        *19 MR. WEBER: Thank you, Your Honor.
    BY MR. CIRESI:
        Q. Now doctor, again let me direct your attention to Exhibit 4700. Do
    you recall giving testimony in 1994 to the Subcommittee on Health and the
    Environment of the Committee on Energy and Commerce, House of
    Representatives?
        A. Yes, sir.
        Q. And when we recessed here, did you go out and reread your testimony?
        A. No, sir.
        Q. You didn't look at it at all?
        A. No, sir.
        Q. Nobody pointed it out to you.
        A. No, sir.
        Q. Now doctor, would you agree that the CTR submits annual reports?
        A. Yes.
        Q. And in 1993, of the 296 studies in your index which were funded for
    about 19 and a half million dollars in grants, only 10, or about 10 of the
    projects had anything to do with tobacco. You don't dispute that; do you?
        A. Yes, I do.
        Q. All right. Would you take a look at page 368 of the testimony that
    you gave under oath in Congress.
        A. Page 368.
        Q. Three six eight.
        Do you have 368?
        A. I -- I do now, yes.
        Q. All right. You'll see at the top Representative -- or Congressman
    Synar is asking a question.
        A. Yes.
        Q. All right. I want to direct your attention to the second question.
    Did you give the following answers to the following questions under oath at
    that time:
        "CONGRESSMAN SYNAR: Are you familiar with your counsel report of 1993?
        "MR. GLENN: I am.
        "MR. SYNAR: Of the 296 studies in your index, wheere you funded about
    19.5 million in grants, as I see from the index, only 10, or about 10 of
    the projects have anything to do with tobacco. Do you dispute that?
        "MR. GLENN: No, sir."
        Did you give those answers to those questions under oath in Congress in
    1994?
        A. I did. But you're taking that out of context, Mr. Ciresi.
        Q. Excuse me, sir.
        A. I had already explained to the congressional subcommittee the nature
    of basic biomedical research and how it does relate. Mr. Synar was talking
    about specific tobacco-related projects.
        Q. Right. And that's what I am talking about, tobacco-related projects.
    And that's what those questions related to; correct, sir?
        A. You make me feel inadequate. I thought I explained that the research
    that we've supported and continue to support is fundamental, and it -- it's
    clearly related to tobacco.
        Q. Sir, you gave those answers to those questions under oath in front
    of Congress; correct?
        A. I did.
        Q. Thank you.
        A. And --
        Q. Thank you.
        A. -- after having given a prior explanation. And I think if you refer
    back to my opening statements to the congressional subcommittee, you'll
    find all of that is explained.
        Q. Sir, I'm only talking about what Mr. Synar, Congressman Synar was
    talking about, and that's projects which have anything to do with tobacco.
    And he asked whether you disputed that and you said no, sir. I'm not
    talking about fundamental, basic research into cancer, I'm talking about
    tobacco. Do you understand that?
        A. I hear you, yes, sir.
        *20 Q. Thank you.
        Now you're aware that the industry attempted to avoid research which
    might indict cigarettes; are you not?
        A. No, sir.
        Q. Can you direct your attention to Exhibit 11624.
        A. Can I ask if we're finished with 4700?
        Q. I am, sir.
        MR. WEBER: I'm sorry, Mr. Ciresi, can I get the number again.
        MR. CIRESI: 11624.
        A. I have that.
        Q. And that is a memorandum to Mr. Goldsmith from Mr. Seligman of
    Philip Morris?
        A. Correct.
        Q. And you know that Mr. Goldsmith was the senior vice-president,
    Philip Morris?
        A. I believe so.
        Q. He was on their board of directors; correct?
        A. I believe so.
        Q. And Mr. Seligman was vice-president, research and development?
        A. I think that's correct.
        Q. Okay. And this memo to Mr. Goldsmith from Mr. Seligman attaches a
    memo from Dr. Osdene; correct?
        A. Yes.
        MR. CIRESI: Your Honor, we'd offer Exhibit 11624.
        MR. WEBER: No objection, Your Honor.
        THE COURT: Court will receive 11264 -- 624, excuse me, 11624.
    BY MR. CIRESI:
        Q. Now sir, we see the memorandum. It's dated November 30th, 1977;
    correct?
        A. Correct.
        Q. And it's from Mr. Seligman to Mr. Goldsmith and the subject is
    "Council for Tobacco Research Program." Correct?
        A. It so states.
        Q. And Mr. Seligman is reporting here that on November 22nd Mr. Osdene
    represented Philip Morris at a CTR program review session; correct?
        A. That is what it states, yes.
        Q. And that in addition to his trip report, Mr. Osdene wrote a memo to
    Mr. Seligman commenting about what he word -- heard; correct?
        A. It appears so.
        Q. And he attached a copy of that personal and confidential memo;
    correct?
        A. Yes.
        Q. And Mr. Seligman wanted to bring this to the attention of Mr.
    Goldsmith because Mr. Goldsmith was a member of the Executive Committee of
    the CTR; correct?
        A. That is what is -- what is stated here.
        Q. And Mr. Osdene was disturbed about the trends that were developing
    in the CTR program; correct?
        A. It appears so.
        Q. And because of the nature of Mr. Osdene's memorandum -- or Dr.
    Osdene's memorandum, Mr. Seligman gave it a very limited distribution;
    correct?
        A. He so states, yes.
        Q. Can you direct your attention, then, to the next page, which is the
    attached memorandum of Dr. Osdene to Dr. Seligman dated November 29th,
    1977, and marked "PERSONAL & CONFIDENTIAL" in the upper left-hand corner.
    Do you see that?
        A. I do.
        Q. Subject, "Some Comments about the CTR Program."
        "I was amazed at the trend that the contract work is taking. For
    openers Dr. Donald H. Ford, a new staff member, makes the following quotes:
        "'Opiates and nicotine may be similar in action.'
        "'We accept the fact that nicotine is habituating.'
        "'There is a relationship between nicotine and the opiates."'
        Do you see that?
        A. I do.
        Q. Okay. Are you familiar with Dr. Ford's work?
        A. Yes.
        Q. And he was a researcher who had been funded by the CTR?
        *21 A. Ford was a staff member of CTR.
        Q. Was his work funded?
        A. I don't know whether Dr. Ford had any grants before he came with the
    CTR staff or not. Memory fails me about that. Dr. Ford was a member of the
    CTR scientific staff.
        Q. And how long --
        A. He was a neuroanatomist by training and a neuropharmacologist, and
    he -- these are apparently concepts which he expressed.
        Q. How long was Dr. Ford with the CTR?
        A. For probably 15 years, perhaps longer.
        Q. Fifteen.
        Is he still with the CTR?
        A. No. He's retired.
        Q. Okay. Now this is about 11 years before the Surgeon General found
    nicotine addictive; correct?
        A. That's correct.
        Q. And compared nicotine to cocaine; correct?
        A. Opiates. I don't believe cocaine is mentioned specifically here.
        Q. Is -- is cocaine an opiate?
        A. Cocaine is a -- the cocaine family is --
        When you speak of opiates, you're really talking about the opium
    family.
        Q. Well is it part of that family?
        A. Well, yes.
        Q. Thank you.
        Now Dr. Osdene goes on to state, "Dr. Leo Abood" --
        And he was from the University of Rochester; correct?
        A. Yes.
        Q. He was a consultant for the industry?
        A. He was --
        Yes, I think so.
        Q. He was on the Scientific Advisory Board of the CTR?
        A. Subsequently, yes.
        Q. And how long did he serve on that board, sir?
        A. Until his death a month ago.
        Q. All right. And at this time Dr. Abood, whose presentation showed a
    high degree of competence, has one of his aims a specific antagonist to
    nicotine; correct?
        A. That is so written.
        Q. And do you know what an antagonist to nicotine would be?
        A. Well it would be a substance which would counteract the effect of
    nicotine.
        Q. What effect of nicotine?
        A. But I think it's misstated in this memorandum. What Dr. Abood really
    was researching was not an antagonist to nicotine, but a substitute.
        Q. Oh, he wanted a substitute for nicotine, not an antagonist; is that
    right?
        A. I don't know what he wanted. I'm just -- I'm just speaking factually
    about his research.
        Q. Now an antagonist to nicotine, though, would, you said, negate the
    effects of nicotine; correct?
        A. I think that's correct, yes.
        Q. What are the effects of nicotine?
        A. Well it --
        Are you sure you want to hear this? Because it's -- it's a pretty
    complex thing. My -- my understanding of it is incomplete.
        Q. All right.
        A. But I will be happy to share what information I have, if you like.
        Q. So you're not an expert in nicotine.
        A. I'm not an expert, no.
        Q. All right. Now what would be a clinically acceptable antagonist to
    nicotine? What -- what does that mean, "clinically acceptable?" One that
    could be used by patients?
        A. I don't know exactly what you mean by "clinically acceptable
    antagonist."
        Q. Well, that's what Dr. Osdene's reported here, "could well lead to a
    clinically acceptable antagonist." Is it your testimony you don't know what
    that means, sir?
        *22 A. I'm not sure what they -- what they meant.
        Q. Fair enough.
        Then he mentions a Dr. Kreisher, if I'm pronouncing that correctly. Or
    is it Kreisher?
        A. Kreisher.
        Q. Kreisher. And he works in the area of AAH. And what's AAH?
        A. Aero aromatic hydrocarbons.
        Q. Aromatic hydrocarbons.
        A. Yes.
        Q. Part of the benzoid ring hydrocarbons?
        A. Yes.
        Q. Are they alkanes?
        A. I can't tell you that.
        Q. Are they carcinogenic?
        A. I can't tell you that either.
        Q. And Dr. Kreisher's work in the area of aromatic hydrocarbons starts
    out with the proposition that smoking causes lung cancer. Do you see that?
        A. I do.
        Q. And Dr. Osdene reports to Dr. Seligman that the rest of the work
    seems to justify this approach. "I am very surprised about the extensive
    human clinical data which is now being sought and feel that after four
    years of this project nobody has the slightest idea where it is going,
    where it is, or what it is trying to prove.
        "It is my strong feeling that with the progress that has been claimed,
    we are in the process of digging our own grave."
        Now have you conducted any investigation into the history of CTR to see
    what type of progress had been claimed at that point in time with regard to
    this work?
        A. I haven't conducted an investigation. I'm aware of the progressive
    nature of the research program at CTR.
        Q. Well I'm talking about Dr. Kreisher's work.
        A. I'm aware of that.
        Q. Okay. Have you investigated to see what facts led to Dr. Osdene's
    statement that "we are in the process of digging our own grave?"
        A. This is a memo written by Osdene, who is a chemist, who may or may
    not have understood what was explained to him.
        Q. I see. Well, doctor, you're aware, are you not, that every one of
    the manufacturing defendants in their research and development departments,
    they were loaded with chemists? You knew that.
        A. I don't know that. I accept that.
        Q. Chemists are the ones who did the work in pharmacology and
    toxicology; aren't they?
        A. No, they don't do work in pharmacology or toxicology. They are
    chemists.
        Q. So they don't do any work in --
        A chemist does no work in pharmacology or toxicology.
        A. No. Ordinarily you would expect that biomedical research would be
    done by a biomedical scientist, not physical scientists.
        Q. Who hold chemical degrees?
        A. Chemical degree is a physical degree.
        Q. Did Dr. Spears conduct any of that type of work?
        A. I have no idea.
        Q. Now if Dr. Kreisher's work was showing that smoking causes cancer,
    would that be digging the grave of the defendant manufacturers?
        A. Dr. Kreisher was not doing the work. Dr. Kreisher was a member of
    the scientific staff.
        Q. If the work, sir, was showing that smoking caused lung cancer, would
    that dig the grave of the defendants?
        A. This -- this is Dr. -- Mr. Osdene's opinion, and -- and I accept
    what is written here.
        Q. Do you believe that if smoking causes lung cancer, it would dig the
    graves of the defendants?
        *23 A. Well I think that's hyperbole. I think that's overstating the
    problem. Everyone, even at this stage in 1977, knew the risk factors of
    smoking --
        Q. That's not what I asked you.
        A. -- in relation to -- to lung cancer.
        Q. That's not what I asked you. If the industry --
        Let me put it this way: If the industry stood up and said, "We admit
    smoking causes cancer," do you think that would have an impact?
        A. Mr. Ciresi, to go back to the area of causation -- and we can talk
    about this for a long time, --
        Q. No, sir --
        A. -- if -- if you accept "cause" in the scientific sense, nobody's
    going to get up and say that.
        Q. Sir, if --
        A. If you say "risk factor," then clearly the industry has already
    acknowledged that and the general public is well aware of it. So this --
    this statement of Osdene's regarding digging our own grave is far from
    scientific.
        Q. Now maybe you can answer my question. If the industry --
        MR. WEBER: Objection to the commentary again, Your Honor.
        MR. CIRESI: Well --
        THE COURT: Just ask your question, counsel.
        Q. Sir, please listen to my question.
        If the industry stood up like they testify in Congress, if they lined
    up the six CEOs and they all raised their right hand, took the oath, and
    they were asked the question: "Does smoking cause lung cancer?" and they
    all said "Yes," do you think that would have an impact on the public? "Yes"
    or "no," or you don't know.
        MR. WEBER: Object to the instruction as to how the witness should
    answer the question, Your Honor.
        THE COURT: Yes. Don't instruct the witness.
        MR. CIRESI: Okay.
        Q. Can you answer that question?
        A. I'm certain it would have an impact on the public, yes.
        Q. Thank you.
        Now Dr. Osdene goes on to state, "I believe that the program has set up
    -- as set up has the potential of great damage to the industry, and I
    strongly urge that the whole relationship of our company to CTR be
    carefully reviewed. I am very much afraid that the direction of the work
    being taken by CTR is totally detrimental to our position, and undermines
    the public posture we have taken to outsiders." Do you see that?
        A. I do.
        Q. Now, "outsiders" would be the public; correct?
        A. I presume, yes.
        Q. Smokers; correct?
        A. And non-smokers.
        Q. Congressmen; correct?
        A. Correct.
        Q. Public health officials; correct?
        A. And others.
        Q. And the position that the companies had taken at that time was that
    smoking does not cause lung cancer; correct?
        A. That is what is implied.
        Q. And you know that's the position that the companies were taking at
    that time; correct?
        A. No, I -- I can't translate myself back to 1977 and put myself inside
    those people's heads.
        Q. Well let me ask it this way, sir: You know that today the companies
    take the public position that smoking does not cause lung cancer. You know
    that.
        A. We're back to the issue of causation and the scientific terminology.
    If you accept the term "cause" in the lay sense; that is, is it involved
    with -- statistically and epidemiologically involved with lung cancer, then
    the answer is of course, yes.
        *24 Q. The companies today take the position that smoking does not
    cause lung cancer; correct?
        A. Again, we have to define the terminology "cause."
        Q. Sir, can you tell me one company who has stood up and said --
    besides Liggett -- one company that has stood up and said, "Smoking causes
    lung cancer?" Name me one.
        A. Mr. Ciresi, they're not going to say it causes it because that
    implies a universal cause-and-effect relationship, and that simply does not
    exist.
        Q. Sir --
        A. If you say tuberculosis is caused by the tubercle Bacillus and we
    can consistently identify the tubercle Bacillus in the diseased tissue,
    then that's one-on-one. We know it is -- the tubercle Bacillus is the cause
    of tuberculosis and it is replicated time after time. But not every smoker
    has lung cancer and many people who don't smoke have lung cancer, so there
    are a lot of enigmas, mysteries that still surround the whole issue. And to
    say smoking causes lung cancer without defining the term "cause" puts you
    in serious jeopardy.
        Q. Sir, can you name one company who has stood up and said -- besides
    Liggett -- "Smoking causes lung cancer?"
        A. No, sir.
        Q. Can you --
        A. And I doubt they ever would say it in that -- in those terms because
    that simply is inaccurate.
        Q. Now you mentioned tuberculosis; didn't you?
        A. I did.
        Q. And you said something about a virus that causes tuberculosis?
        A. No, sir, I did not.
        Q. What -- what did you say?
        A. I said the tubercle Bacillus.
        Q. The tubercle Bacillus. Is that a parasite?
        A. Is that what?
        Q. Is that a parasite?
        A. No, sir.
        Q. What is it?
        A. It's a bacterium.
        Q. It's a bacterium.
        So the tubercle Bacillus causes tuberculosis in every case; correct?
        A. If the patient has tuberculosis, it is caused by the tubercle
    Bacillus universally.
        Q. Now what you're using there is the Jacob Henle and the Robert Koch
    postulates; aren't you?
        A. Koch's postulates are fulfilled by that equation, yes.
        Q. And that's Henle and Koch postulate; isn't it, sir? They were two
    scientists in the 1800s; right?
        A. Yes.
        Q. And they came up with postulates for what they called cause;
    correct?
        A. Correct.
        Q. And one was that --
        And this is based on 19th century knowledge of bacterial disease;
    correct?
        A. Correct.
        Q. And they said that a parasite was a cause if it occurs in every case
    of the disease; correct?
        A. Correct.
        Q. If it occurs in no other disease; correct?
        A. I'm not sure of that.
        Q. You don't know the Henle Koch postulates; do you, sir?
        A. Yes, sir, I do know Koch's postulates.
        Q. All right. That is the second postulate, isn't it, it occurs in no
    other disease?
        A. It occurs in no other disease.
        Q. That's the second one.
        A. Of --
        But that does not include the related diseases.
        Q. And the third postulate was after being isolated from the body,
    grown in a pure culture and repeatedly passed, it would induce the disease
    again; correct?
        *25 A. Yes, sir.
        Q. Those were the three Koch's postulates; correct?
        A. I have so stipulated.
        Q. All right. Now do you believe that the Epstein-Barr virus causes
    infectious mononucleosis?
        A. Possibly, yes.
        Q. You know it does; don't you, sir?
        A. Yes.
        Q. Yes, you do.
        And that was found by Werner Henle, Robert Henle -- or Jacob Henle's
    grandson; correct?
        A. I don't know that.
        Q. You don't know.
        And not one of his grandfather's postulates was met by the -- by that
    virus; isn't that right, sir? Not one.
        A. Well that doesn't have anything to do with my prior statement
    relative to the absolute relationship between smoking and lung cancer.
        Q. But you just said that the Epstein-Barr virus causes infectious
    mononucleosis; didn't you?
        A. Yes.
        Q. And it doesn't occur in every case of infectious mononucleosis; does
    it, sir?
        A. That's why I hedged my initial answer to you. It doesn't occur in
    every case.
        Q. And smoking doesn't cause in every smoker lung disease; does it?
        A. No. As a matter of fact, only in a small minority.
        Q. Now with regard to the Epstein-Barr virus, it occurred in other
    diseases; didn't it?
        A. Yes.
        Q. Okay.
        A. I don't understand the thrust of your question.
        Q. Well I'm seeing whether or not, where you say that Epstein-Barr
    virus causes infectious mononucleosis -- causes -- whether it fits the
    Henle Koch's postulates, and we're finding out that it doesn't fit the
    Henle Koch's postulates; aren't we, sir?
        A. Yes. But I was talking about tuberculosis.
        Q. Oh. Well, should we talk about typhoid or diphtheria?
        A. No. I was talking about tuberculosis.
        Q. How about cholera?
        A. I was talking about tuberculosis.
        Q. Scientists for decades have found cause regardless of whether the
    Henle Koch's postulates are met; haven't they, doctor? If you can answer.
        A. Mr. Ciresi, I don't want to argue with you about this.
        Q. I'm not arguing either, sir. I've asked a simple question.
    Scientists for decades --
        MR. WEBER: Object to the commentary again, Your Honor.
        MR. CIRESI: Well, Your Honor, he said he didn't want to argue with me.
        THE COURT: All right. You can ask the question.
    BY MR. CIRESI:
        Q. Scientists for decades have found cause and effect in the absence of
    Henle Koch's postulates; haven't they?
        A. In some instances. But I wasn't referring to scientists and -- and
    the Koch's postulates, not "Koch's." I was talking about tuberculosis.
        Q. I know you were.
        A. That's a --
        Q. I know you picked --
        A. -- one-on-one equation.
        Q. I know you picked tuberculosis, sir. I know that, the jury knows it,
    the court knows it.
        MR. WEBER: Objection, Your Honor.
        THE COURT: Ask a question, counsel.
    BY MR. CIRESI:
        Q. Now, do you know of any other cancer that has been researched
    epidemiologically, toxicologically, in other ways, over the last 40 years
    as lung cancer and smoking? Can you name any other disease?
        *26 A. I'm sorry, I don't understand your question.
        Q. Do you know how many studies have been conducted on lung cancer and
    smoking?
        A. How many studies?
        Q. Yes.
        A. No, I can't tell you that. But an infinite number.
        Q. And sir, when scientists make judgment on causation, they don't look
    at just the Henle Koch's postulates; do they? They look at other factors;
    correct?
        A. There are -- there are many factors, obviously.
        Q. They look at the experimental approach; don't they?
        A. Correct.
        Q. They look at the temporal associations; don't they?
        A. Correct.
        Q. They look at consistency of those associations; don't they?
        A. I would think so.
        Q. They look at the strength of those associations; don't they?
        A. Yes, sir.
        Q. They look at the coherence of the associations,; don't they?
        A. I imagine.
        Q. And then they make a judgment based upon cause and effect; don't
    they?
        A. Yes.
        Q. And the Surgeon General of the United States since 1964 has used
    those scientific methods in determining that smoking causes a variety of
    diseases; haven't they?
        A. True.
        Q. Based on reports in the medical literature and the judgments of
    hundreds of scientists in this country and around the world; correct?
        A. Many of those scientists were supported by CTR grants.
        Q. Sir, is your answer yes?
        A. Yes.
        Q. Thank you.
        And yet to this day, besides Liggett, not one of these other
    defendants, manufacturing defendants in this case, who pay your salary,
    have stood up and said to the American people, "Smoking causes cancer;"
    have they?
        MR. WEBER: Objection, Your Honor, it's asked and answered from before.
    It's also argumentative.
        THE COURT: It's not argumentative. It's been asked and answered.
        Q. Sir, you talked about the resources that the industry has
    contributed to CTR; is that correct?
        A. Spoke about what, Mr. Ciresi?
        Q. The resources that the industry has contributed to CTR to conduct
    these studies.
        A. By "resources," do you mean funding?
        Q. Money.
        A. Money. Yes.
        Q. That's a resource; correct?
        A. Yes.
        Q. Okay.
        A. But I -- I thought you were introducing another document.
        Q. Let me --
        No. Fair enough.
        A. Industry has funded research that has been fostered by CTR and its
    Scientific Advisory Board.
        Q. Okay. And the board, then, funnels out this money to various
    institutions around the country; correct?
        A. Well I -- it's not quite that simple. There is intense competition
    for grant funding, and it's -- the process of grant application and grant
    review and grant approval and funding is not simply funneling out money.
        Q. Well many institutions in the country won't accept money from CTR;
    will they?
        A. Oh, there are a few.
        Q. Harvard?
        A. Harvard accepts money. We've got a number of grants at Harvard. One
    current member and one former member of our Scientific Advisory Board was
    from Harvard.
        Q. Former member.
        *27 A. One former member and --
        Q. Now --
        A. -- one current member.
        Q. Now by using the term "funnel," I didn't mean to imply anything
    nefarious by that. The CTR takes a look at various scientists who want
    money to conduct research, and they make a judgment whether that would be a
    worthwhile project; correct?
        A. No, sir, that's not the way it's done. There's a very formal,
    structured application process where projects are presented to the
    Scientific Advisory Board by the investigators.
        Q. And --
        A. So --
        Q. -- the investigator is the applicant who wants money to fund a
    project; correct?
        A. Correct.
        Q. All right. And then that is reviewed by the Scientific Advisory
    Board; correct?
        A. Correct.
        Q. And do you have a budget at that time?
        A. Yes.
        Q. Okay. And then what happens next?
        A. Well the -- it would be simpler if we just went through the entire
    review process from beginning to end. But what happens next, very simply,
    is the projects presented at a given time in a given cycle are reviewed and
    weighted by merit on the opinion of the Scientific Advisory Board. And it
    is competitive. A score is awarded. The rating process is identical to that
    used by the National Institutes of Health. And the projects which receive
    the highest rating are those that are funded.
        Q. Okay. So there's a rating system and then you fund certain programs;
    correct?
        A. Yes, sir.
        Q. All right. Now are there -- are there subjects that are avoided?
        A. Not really. There are subjects that are beyond our scope of interest
    which -- and we don't encourage a grant application in something that is
    foreign to our interest. We've -- we've focused on fundamental research
    that will shed light in the areas of interest; namely, in smoking and
    health.
        Q. Can you -- I'm sorry. Were you done?
        A. That includes pulmonary disease, cardiovascular disease, cancer,
    with a focus on the fundamental aspects of molecular and cellular biology,
    immunology, genetics.
        Q. Can you --
        A. So we really haven't been interested in -- in, let's say, orthopedic
    problems, or in problems that are totally, distinctly out of the area of
    smoking and health.
        Q. Doctor, can you direct your attention to Exhibit 10166. It's a
    Philip Morris document dated March 31, 1980.
        A. I have that.
        MR. WEBER: Your Honor, if I could inquire, we're checking among our
    various lists and don't have that on our designations. If we could just
    have one minute and perhaps check with plaintiffs' counsel.
        THE COURT: All right. Why don't you hold just a minute, though.
        Go ahead.
        MR. CIRESI: I may have misspoke. Did I say 10166? 10166.
        THE COURT: That's what you said.
        MR. CIRESI: Okay.
        MR. WEBER: We have a 10165, not a 10166.
        MR. CIRESI: We may have missed that, Your Honor. That's our fault.
    We'll withdraw that.
        THE COURT: All right.
    BY MR. CIRESI:
        Q. Now doctor, with regard to the resources -- and by "resources" I
    mean money -- do you submit a budget to the tobacco companies on a yearly
    basis?
        *28 A. Yes, sir.
        Q. Is that before or after you review?
        A. Well the review process is a continuous operation, culminating in
    grant awards twice yearly. The budget process is also a continuing process.
    As we receive increasingly good grant applications, higher and higher
    quality, and as inflation takes its toll, we factor in increases in the
    research budget as we approach the industry for funding.
        Q. Okay. Can you direct your attention, then, to Exhibit 20187.
        Do you have it, sir?
        A. I have that.
        Q. All right. Now let me ask you, first of all, in preparing for your
    testimony, did you ascertain how much had been spent by the tobacco
    companies in terms of funding to CTR from 1954 to 1994?
        A. I don't think I've ever seen this document, --
        Q. That's not what I asked you.
        A. -- Mr. Ciresi.
        I know you didn't ask me, but I just want you to know if your questions
    are predicated on this document, I need time to look at it.
        Q. We'll get to that. I just wanted you to turn there so that when we
    get there you'll -- you'll have it. Okay? Right now my question is very
    simple.
        In preparing for your testimony, were you told or did you investigate
    how much money the tobacco companies funded CTR with for the period 1954 to
    1994?
        A. That would --
        Well the current amount of research funds that -- funding that we have
    distributed comes to about 285 million dollars. In 1994, three or four
    years back, I suppose it would be 225 million, give or take.
        Q. Well that was what you were told, was it not, in preparing for
    testimony?
        A. I was not told this. These are -- these are facts from our files.
        Q. Oh, yes. So you were aware of that.
        A. I'm sorry?
        Q. You were aware of that number.
        A. I am aware of the numbers, certainly.
        Q. All right. And that would be 225.8 million; is that right?
        A. I don't have the figures in front of me, Mr. Ciresi. You obviously
    do. I told you about 225 million dollars several years ago. I think that's
    correct.
        Q. All right. Would you now take a look at Exhibit 20187, the one that
    is in front of you.
        A. I see it, but I haven't had time to absorb it.
        Q. All right. Please take a look at it. Take the time you need, sir.
        A. All right.
        Q. Okay. And I specifically would like to direct your attention to the
    second page, which shows total contributions to CTR for the period 1954 to
    1994. Do you see that, over on the right-hand side of that?
        A. Yes.
        Q. Okay.
        MR. CIRESI: Your Honor, we're going to offer Exhibit 20187, --
        MR. WEBER: Your Honor, I would object to that.
        MR. CIRESI: -- which --
        MR. WEBER: It appears to be an expert report of one of their experts,
    and I think it's inappropriate for them to try to introduce it without the
    expert. If they want --
        It appears that part of this includes a demonstrative exhibit or two. I
    have no objection to them using their demonstrative exhibits or two on the
    representation that they'll tie it up later with testimony, but I would
    object to the report itself and anything beyond their demonstratives. I
    hope that --
        *29 MR. CIRESI: If counsel would kindly wait until I'm done making my
    offer of proof, Your Honor, then I believe it would be appropriate for him
    to make his record.
        THE COURT: All right.
        MR. CIRESI: Your Honor, we'd offer Exhibit 20187, which is from Exhibit
    2177, which was admitted pursuant to Rule 1006 on February 11 during the
    testimony of Mr. Merryman, and in that memorandum there was -- or excuse
    me, in that exhibit there was stated by company the amount of money spent
    by CTR and the advertising and promotion amount of money spent, there was
    also the total domestic sales, and all of those amounts come from the
    defendants' answers to interrogatories which were provided in this case,
    together with their annual reports and their SEC filings.
        Exhibit 20187 simply totals up from that document, which is admitted
    into evidence, and it's being offered for that purpose, together with the
    demonstrative exhibits contained therein.
        MR. WEBER: As -- as counsel is aware -- Your Honor, we could address
    this at side bar if the court would prefer. But there is a dispute as to
    which -- as to whether, in that initial admission, it was only the
    demonstratives that Mr. Ciresi referred to, or whether they somehow
    introduced their entire expert report through a witness who hadn't prepared
    it. And -- and that's -- that's the issue I was trying to address by
    focusing on these demonstratives. I have no problem with the
    demonstratives, but there is a fundamental issue about just what is in
    evidence with respect to that other exhibit Mr. Ciresi referred to.
        THE COURT: Is this just a summary of that -- of those figures from the
    other exhibit?
        MR. CIRESI: That's correct, Your Honor.
        THE COURT: Do you dispute that, counsel?
        MR. WEBER: With respect to the expert report?
        THE COURT: No, with respect to 2177.
        MR. WEBER: 2177 has a variety of Mr. Much's calculations in it. Yes, it
    does.
        THE COURT: Are you disputing that this is a summary of that?
        MR. WEBER: No, not with respect to the -- with -- with respect to that
    situation. The issue is just what is in evidence, though, Your Honor.
        THE COURT: All right. Well if it's --
        I'm going to receive it if it's just a summary. You can move to strike
    it if you check that and find out that this is not in fact an accurate
    summary.
        MR. WEBER: Okay.
        THE COURT: Okay?
    BY MR. CIRESI:
        Q. Now sir, if we look at Exhibit 2187, then, and we look at the first
    pie chart --
        THE COURT: It will be received.
        MR. CIRESI: Thank you, Your Honor.
        If you could pull that up a little to see if we can -- if you could
    move a little bit to the -- the other way. Well, that's fine.
        Q. First we have the total domestic sales of the company during this
    period of time. Do you see that, sir?
        A. I do.
        Q. 417,143,247,147 dollars; correct?
        A. Correct.
        Q. And we show, based on the information provided by the defendants,
    that the total amount contributed to CTR during that period of time was
    326,040,272 dollars. Do you see that?
        *30 A. Yes, sir. I accept the figures. I'm not sure of the accuracy.
        Q. I understand.
        Now if we go to the next pie chart --
        And while that's being put up, sir, I understand that what you said is
    your best recollection is there was 225 million, roughly, that was spent on
    funding projects during that period of time; right?
        A. Funding grants in aid. And in addition to that you would have
    special projects, and in addition to that you would have overhead of
    operating the office, and then in addition to that you would have
    compensation of the members of the Scientific Advisory Board.
        Q. Right. And that's what we're going to get to. So right now we're
    just showing the total funding of the CTR. You understand that.
        A. I'm -- I can't verify that this figure is correct, but it -- it's
    certainly within reason.
        Q. All right. Now you understand, though, that it comes from the
    defendants' own documents. You understand that.
        A. It may -- may very well.
        Q. All right.
        A. I just don't -- I don't recognize this figure.
        The grants awarded during that interval of 40 years come to
    approximately 225 million. Now it would appear there's another hundred
    million dollars that would have gone to special projects, gone to overhead,
    expenses of operating the office, heat, lights -- heat, light and water,
    and expenses of staff and Scientific Advisory Board.
        Q. I'll grant you that. So we're just -- we're sort of giving you the
    benefit of the entire amount here, 326 million. Do you see that?
        A. I see it.
        Q. All right. Now --
        A. But I can't verify it.
        Q. I understand. I just want you to know that it comes from the
    defendants' answers to interrogatories, which are sworn answers, and from
    their own documents. Do you understand that?
        A. I accept what you tell me, Mr. Ciresi.
        Q. Thank you.
        Now if we go to the total contributions to CTR, including that 326
    million, that entire amount -- do you see that -- and we compare it to
    total advertising, marketing and promotion by these companies during that
    period of time, we see that what was spent on advertising, marketing and
    promotion was 47,083,702,001 dollars. Do you see that?
        A. I see that number, yes.
        Q. And that would be for the period from 1954 through 1994; correct,
    sir?
        A. That is the label.
        Q. Okay. So that little sliver there is what was sent over to CTR, in
    comparison to what was spent on marketing, advertising and promotion;
    correct?
        A. That is what the chart reveals.
        Q. Now would you accept -- once again I'm asking you to accept -- my
    calculation that the 326 million, if it was all spent on medical research,
    that would be about 8.15 million dollars a year; is that right?
        A. On average?
        Q. Yes.
        A. I -- I accept your arithmetic.
        Q. Okay. And on average the companies would have been spending one
    billion 175 million dollars on marketing, promotion and advertising during
    that period of time. Do you accept that?
        A. I -- I will, yes.
        *31 Q. So that the percentage spent looking at the health issue as
    contrasted with marketing the product was about seven-tenths of one percent
    on average per year. Would you accept that?
        A. I'll accept that, with the provision that this is unique. There is
    no other industry that has funded biomedical research to the same extent
    that the tobacco industry has.
        Q. How many industries are you aware of, doctor, where it is reported
    that their product kills 417,000 Americans a year? How many other
    industries?
        A. I can't -- I can't tell you that. We -- we've got a lot of problems
    with environmental contamination, with automobile accidents and failures,
    with asbestos, with a host of other societal problems, and I can't answer
    that question.
        Q. Not one is even close. Is there, sir?
        A. I can't answer your question.
        Q. That's another one where you don't want to guess because if you
    don't know, you don't say anything; correct?
        A. That's right.
        Q. You've never looked at that issue; have you?
        A. I'm sorry, I have looked at the issues. I just related to you some
    things that come quickly to mind.
        Q. Have you investigated what other industry --
        A. No, sir.
        Q. Thank you.
        Now if we take a look at what -- what you said was spent on grants and
    contracts and special projects, we could take a look at Defendants' Exhibit
    1962A. Can you look at that.
        MR. WEBER: Your Honor, I'd -- I would object to this. This is a defense
    demonstrative, and pursuant to the court's order they were to be disclosed,
    but there was nothing in the court's order that said parties could start
    using each other's demonstrative exhibits prior to the time the party had
    used it. It was a disclosure exchange pursuant to the court's order.
        MR. CIRESI: Well certainly he's not arguing about the foundation on
    this, Your Honor. It's his exhibit.
        THE COURT: Well, has he had a chance to look at it?
        MR. CIRESI: Yes, I gave -- I gave him notice of this.
        THE COURT: Okay.
        MR. WEBER: He put it on his list, and our position is that the
    demonstrative exchange pursuant to the court's order was that the parties
    had a right to use their own demonstratives, not that that gave other
    parties the right to put demonstratives out before the party had its own
    option to do so.
        THE COURT: Well, I certainly haven't prohibited it. I don't -- I don't
    see what the problem is, unless I'm missing something.
        MR. WEBER: Well it's just simply an issue of a party preparing a
    demonstrative, having to exchange it, the court order, and wanting to use
    it in the course of the presentation of its own case. That's the issue I
    raise, Your Honor.
        THE COURT: Okay. I don't see a serious problem.
        Go ahead.
        MR. CIRESI: Your Honor, we'd offer the Defense Exhibit 1962A.
        A. I'm sorry, I'm missing a number.
        Q. It's in volume one, sir.
        A. And it is --
        Q. Right in the front. I'm sorry, I should have directed you to the
    right volume. Do you have it, doctor?
        *32 A. I have it now.
        Q. And you have seen this document before?
        A. Yes.
        Q. Okay. And did you look at this when you were preparing for your
    examination?
        A. Yes.
        Q. So if we add the two numbers here --
        You show the grant-in-aid and contracts, 225.8 million; correct?
        A. Correct.
        Q. And that's 1255 research projects over the 40 years; correct?
        A. Correct.
        Q. And 1,051 researchers; correct?
        A. Yes.
        Q. And 5400 publications; correct?
        A. Yes.
        Q. Now --
        THE COURT: Excuse me. Excuse me, counsel.
        Q. And then --
        THE COURT: Counsel, this has not been received in evidence.
        MR. CIRESI: I'm sorry, I thought I offered it. I apologize.
        THE COURT: You offered it. It hasn't been received.
        MR. CIRESI: I apologize, Your Honor. I thought it was offered. I
    thought you received it.
        THE COURT: It was offered, it was not received.
        MR. CIRESI: Oh, you have to give --
        I'm sorry, Your Honor, we have the new process.
        THE COURT: Well I don't mean to be testy, but --
        MR. CIRESI: No, it's our fault.
        THE COURT: -- we're losing control of the exhibits if they aren't given
    immediately to the reporter. Okay?
        MR. CIRESI: Is it received now, Your Honor?
        THE COURT: 1962A is received.
        MR. CIRESI: I apologize to the court.
        THE COURT: All right.
    BY MR. CIRESI:
        Q. Doctor, we'll go back to it now. You have 225.8 million for
    grant-in- aids; correct?
        A. Yes, sir.
        Q. And for CTR special projects, 18.1 million; correct?
        A. Yes.
        Q. So you've got a total of two hundred and what, forty-three point
    nine million?
        A. Yes.
        Q. And that would be over 40 years; correct?
        A. Yes.
        Q. And that means that from what we had, we showed you had 326 million,
    so about 86 million dollars would have gone to administration or other
    expenses during that period of time; correct?
        A. And overhead, yes.
        Q. Yes. And that would be roughly about -- little over two million
    dollars a year during that 40-year period.
        A. Approximately, yes.
        Q. Okay. So if we have, let's say, 240 million dollars divided by the
    40 years, that's six million dollars a year that went to contracts for
    research, on average; is that right?
        A. Contracts and grants.
        Q. Grants and special projects.
        A. And special projects.
        Q. On average; correct?
        A. Well you've done the arithmetic there. I haven't done that, so --
        Q. Would you accept that?
        A. Yes.
        Q. Okay. Two hundred forty divided by 40 is six million dollars a year;
    correct?
        A. Yes.
        Q. Now we still have the one billion 175 million dollars per year spent
    on advertising, marketing and promotion; correct?
        A. I don't know that. I can't verify that number. But it doesn't
    surprise me.
        Q. So that based on your numbers, your numbers, this industry would
    have spent one-half of one percent per year on average what it spent on
    marketing, promoting and advertising its product; isn't that right?
        A. Yes. But I -- that's apples and oranges. If they hadn't advertised
    and sold their product, we wouldn't have had anything for our research
    budget.
        *33 Q. If they hadn't advertised and marketed and promoted their
    product, we might not be here today; right, sir?
        A. Oh, I expect you would have been here, Mr. Ciresi.
        Q. You do.
        Now many of the grantees of the CTR have found that smoking increases
    the risk for diseases; correct?
        A. You'll have to rephrase that for me.
        Q. Sure.
        Researchers who have conducted research funded by the CTR have found
    that smoking increases the risk of diseases; correct?
        A. Yes.
        Q. Now has the CTR ever conducted a survey of its researchers to
    ascertain how many of them believe in their scientific judgment that
    smoking causes lung cancer?
        A. No, sir. I -- I think our -- the investigators that we've supported
    are sophisticated enough to have figured out for themselves the
    relationship between smoking and various diseases. No, we've not undertaken
    any such survey.
        Q. Has the CTR ever conducted a survey of its grantees to determine how
    many of them believe scientifically that smoking causes chronic obstructive
    pulmonary disease?
        A. No. The answer is the same.
        Q. Have you ever conducted a survey to determine how many of the
    grantees believe that smoking causes oral cancer?
        A. No. And the an