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