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 24, 1998

A.M. Session
 

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

THE CLERK: All rise. Ramsey County Court is now in session, the Honorable Kenneth J. Fitzpatrick presiding.
 

(Jury enters the courtroom.)

THE CLERK: Please be seated.

THE COURT: Good morning.

(Collective "Good morning.")

THE COURT: Counsel.

MR. HAMLIN: Thank you, Your Honor.

Good morning.

(Collective "Good morning.")

SCOTT L. ZEGER called as a witness, being previously sworn, was examined and testified as follows:

BY MR. HAMLIN:

Q. Good morning, Mr. Zeger.

A. Good morning, Tom.

Q. At the close of the day, we were talking about the steps in the core model. Could you just review for us briefly what the core model is.

A. Yes. The core model was a simpler model designed to make clear the steps involved in calculating a smoking-attributable expenditure in the refined -- core and refined models.

Q. Now was the first step to take the dollars spent to treat people with smoking-attributable diseases and total them?

A. Yes.

Q. And you then gave us an overview of the three reductions which are on the Elmo; right?

A. That's correct.

Q. And at the close of the day you were discussing an example, which is Trial Exhibit 30198, which is now before the jury, the jury and the court; right?

A. That's correct.

Q. Can you come down and we'll continue with the example, with the court's permission.

Before you begin, could you define for us what you mean by "smokers" in this example.

A. Yes. In this hypothetical example and in the application of the core model to Minnesota, the definition of smokers is a standard definition used in most government surveys -- many government surveys and in many research protocols, where the question is asked whether you have ever smoked more than a hundred cigarettes in your life, and if the answer is yes, people are classified as a smoker, if the answer is -- is no, it's a never smoker. So it's more than 100 cigarettes. And so for this hypothetical example, that's what I meant yesterday when I defined smokers and never smokers.

Q. Okay. Now could we place on the Elmo the first reduction, which was there last night. And could you just again review for us the first reduction, Dr. Zeger.

A. Yes. If the jury recalls, I started the discussion by saying what we do is we total all of the expenditures for the persons in the hypothetical example who have lung cancer, and there are 160 people in this hypothetical example, so we would start with all of their expenditures, all of their health-care expenditures. And what the first reduction is intended to do is to set aside all expenditures for persons who weren't smokers, so it would be unfair to take all of the expenditures for people with lung cancer because some of those people weren't smokers. So what we need to know is the percentage of persons among those that have lung cancer that are smokers. Okay.

*2 And we look at a table like this and we can see that there are 160 people with lung cancer, 20 were not smokers and 140 were. So if we need to calculate the percentage that are smokers, that's what's shown up on the Elmo, we take 140, which is the number of smokers, and we divide it by the total number of persons with -- don't want to hit him (referring to the witness's laser pointer with Mr. Hamlin walking through its path) -- total number of persons with lung cancer, and that percentage is 87.5 percent. So the first reduction takes the total expenditures for persons who have lung cancer, but rather than taking all of those expenditures, we take the proportion of those expenditures that corresponds to the proportion of smokers so that we don't take dollars for persons who weren't smokers.

Q. To make that first reduction, do you need to know who the individual smokers are?

A. No. What we need to know is the proportion of the total persons with lung cancer that were smokers, and here it was that 140 out of 160.

It's like it is in that simple coin-tossing experiment. If we want to know the proportion of heads, we don't need to know which of the coins came up head and which of the coins came up tails, what we need to know is the proportion of heads out of the total number of tosses. And it's the same thing here. We don't need to know exactly which of the individuals were smokers, but we need to have a reliable estimate of the proportion of the lung cancer patients that were smokers.

Q. Professor Zeger, do you have an exhibit that illustrates the second reduction?

A. Yes, I do.

Q. Can I direct your attention to Trial Exhibit 30192. And is that the exhibit illustrating the second reduction?

A. Yes, it is.

Q. And was this prepared at your direction?

A. Yes, it was.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30192 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30192 for illustrative purposes.

BY MR. HAMLIN:

Q. Put that on the Elmo.

Professor Zeger, could you take us through the second reduction.

A. Yes. So we -- what we've done now is we've started with the total expenditures for these 160 people and we've reduced the expenditures by an amount corresponding to the proportion of smokers so that we don't take dollars for non-smokers, but that -- that's only the first reduction. Now we need to make a second reduction, and the purpose of the second reduction is to only take those persons who are smokers and who have lung cancer whose lung cancer was actually caused by their smoking. So the second reduction is what percentage of smokers' lung cancer is attributable to their smoking? And the purpose of this reduction is to acknowledge the possibility that one can get lung cancer even if one's not a -- even if one is not a smoker. So among the smokers there might well be persons who might have gotten lung cancer even if they had not smoked.

So if we look at now the 140 smokers who got lung cancer, we have to ask ourselves, of these 140 people, how many might have gotten lung cancer even if they had not been a smoker? And there's information in this hypothetical table that will help us determine that proportion. Because we have a group of non- smokers, okay, we have 5,000 non-smokers just the way we have 5,000 smokers, and we did get some lung cancer among the otherwise similar non-smokers. So if we ask the question how many of the smokers might have gotten lung cancer even if they had not smoked, a reasonable way to determine that proportion is to look among the otherwise similar non-smokers. And what do we see? We see there were 20 lung cancers out of 5,000 people. So what we do in the second proportion -- second reduction is we say since there were 20 out of 5,000 non- smokers -- non-smokers who got lung cancer, we would expect about 20 out of 5,000 of the smokers to have gotten lung cancer even if they had not smoked. And that's what we mean by determining the proportion that's actually attributable to their smoking. It's recognizing that it's possible to get lung cancer even if you are not a smoker. Doesn't happen nearly as often. You can see it's, in this hypothetical example, seven times more likely to get lung cancer if you are a smoker versus a never smoker, but it isn't impossible.

*3 So the purpose of the second reduction is to take the 140 smokers who have lung cancer and to reduce that number down to 120. And how do we get 120? Because we have the 140 smokers who have lung cancer, but we saw that there were 20 among the otherwise similar never smokers who got lung cancer, so we're going to assume that there are 20 here that would have gotten lung cancer even if they hadn't been smokers. And so the second reduction takes the 140 smokers who have lung cancer and it compares -- it looks at the rate of lung cancer among the never smokers, that was 20 out of 5,000, and so it takes the rest of the people, 120, and it takes the ratio 120 over 140, or 85.7 percent, which is the size of the second reduction, which is the percentage of smokers' lung cancer that is attributable to smoking, recognizing that some people who don't smoke can also get lung cancer.

And this is a standard -- standard calculation that is made in biostatistics and epidemiology, to only take the proportion of disease among smokers that we can attribute that's over and above what we see in an otherwise similar group of never smokers.

Q. Professor Zeger, do you have an exhibit that illustrates the third reduction?

A. Yes, I do.

Q. Let me direct your attention now to Trial Exhibit 30193. Is that the exhibit that illustrates the third reduction?

A. Yes, it is.

Q. And was this prepared at your direction?

A. Yes, it was.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30193 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30193 for illustrative purposes.

BY MR. HAMLIN:

Q. I think, Professor Zeger, we have a board that we can put on the easel. Okay. On the Elmo we could put the three reductions. Thank you.

A. Okay. So this is now the last reduction. The first reduction was to set aside the non-smokers, the second reduction to set aside some lung cancer that might occur among smokers even if they had been non-smokers, and now the third reduction addresses the dollars expended to treat persons who have lung cancer.

And the idea of the third reduction is the following: Thus far what we -- what we have are the total expenditures, all of the health-care expenditures for smokers whose disease is caused -- whose lung cancer is caused by their smoking. We have all of the expenditures for them. But we recognize that even if these people didn't have lung cancer, their health-care expenditures wouldn't be zero. People go to the doctor, they have incidents that happen. Even if you don't have lung cancer, you have medical expenditures. So it would be unfair to take all of the medical expenditures. We have to -- we have to take only those medical expenditures that are the result of the lung cancer.

So the third reduction says what dollar percentage is attributable to the lung cancer caused by smoking? And so how do we go about doing that? Well here is, again for a hypothetical example of 10,000 Minnesotans, what we've done is hypothetically calculated the average medical expenditures for the patients with lung cancer, and that's $15,000. That's what it costs on average to treat a patient with lung cancer. But we have also in our population people who don't have any major smoking-caused disease, they don't have lung cancer or the other major smoking-caused diseases, and we can look and see what do we spend on those people in that they also have medical expenditures, and in this hypothetical example, it's 700 dollars.

*4 You can see what -- what is true is that it costs much more for medical expenditures if you have lung cancer than if you don't have any of these major diseases. Okay? So if we ask the question: Of the $15,000, how much of it is to treat other things that are unrelated to lung cancer? A reasonable place to look is to look at how much we spend on people who don't have lung cancer who are otherwise similar. And we can see that's 700. So we don't -- it would be unfair to take all $15,000. What is fair is to take 15,000 less the 700, which we spend on people who don't have lung cancer, or 14,300 in this hypothetical example.

So how do we not take the 700 dollars? We calculate a third proportion, a third percentage, which is 14,300, the additional expenditures divided by the total expenditures, and the percentage comes out to be 95.3 percent. So the -- again, the purpose of the third reduction is to set aside dollars that are spent for health care that don't have anything to do with the lung cancer and only to take those dollars that are over and above what we see as being spent by people who don't have lung cancer. And that's the purpose of the third reduction.

Q. Now let me ask you about this lung cancer example. Now the treatment cost is $15,000 for lung cancer; correct?

A. Correct.

Q. Okay. Now does that $15,000 include payments for costs -- excuse me, payments of cost for treating conditions not caused by smoking, such as a broken leg?

A. Yes, it may well, because these are the total expenditures for a person who has lung cancer.

Q. Do we count all the dollars spent for the treatment of broken legs as smoking-attributable expenditures?

A. No. That -- that's the whole idea of the third reduction. We don't want to take money for any conditions that don't have anything to do with lung cancer, and the way to avoid taking that money is to look to see what the expenditures are for persons who don't have lung cancer, because if it's not related to lung cancer, they'll also be having conditions, broken bones, for example, and also those dollars will be in here. So when we subtract away the 700 dollars from the 15,000, we're setting aside dollars that are not attributable to the lung cancer.

Q. Is there any way for the dollars spent for broken bones to stay in the smoking-attributable expenditures after the third reduction?

A. Well there is one possibility, and that is if -- if -- I think Dr. Samet has indicated to us that it's possible in lung cancer to have a bone cancer that comes as a result of the lung cancer, and then very fragile bones that might break, might break more often, for example. So if -- if -- if it is possible, and Dr. Samet has indicated to us that it is, that broken bones might happen more frequently as a result of the lung cancer, then that money would be left in, because that wouldn't be happening to these people down here who don't have lung cancer. But the ones that will be taken out are just those sort of accidental breaks which will occur both to people with lung cancer and to people without lung cancers. And so when you subtract away, you remove those -- those breaks.

*5 Q. Professor Zeger, do you have an exhibit that illustrates how the three reductions work in this hypothetical example to calculate a smoking- attributable expenditure?

And let me direct your attention to Trial Exhibit 30190. Is that the exhibit?

A. Yes.

Q. Okay. And was that prepared by you?

A. Yes.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30190 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30190 for illustrative purposes.

BY MR. HAMLIN:

Q. I'm now placing the exhibit on the easel. Can you explain to the jury what is on this exhibit.

A. What this exhibit shows is the expenditures which are attributable to smoking for this hypothetical population of 10,000 Minnesotans who have lung cancer, and it -- it shows the application of the three reductions.

So let's go over here to the left-hand side. Remember, we had 160 people with lung cancer, and if we went through all of the medical records in this hypothetical population we would have identified, we said, $15,000 on average, $15,000 per person to treat their lung cancer. And so the math is right, I'm pretty sure. If you take 160 people times $15,000 per person, it comes out to be 2.4 million dollars. So that's the amount of expenditures we would have identified for these 160 people with lung cancer. And what this chart now shows is the application of the three reductions in order to get -- in order to start with total expenditures and end up with expenditures at the other side which are actually attributable to their smoking.

So the first reduction is applied as follows: We start with 2.4 million dollars, which is the total dollars expended for this population -- for these people with lung cancer, and we say what percentage of the lung cancer patients are smokers? Remember, there are some smokers among the 160, and we want to set them aside. We don't want dollars for them. Excuse me, there are some non- smokers -- excuse me, please let me correct myself -- there are some non- smokers among this group, and we don't want dollars for the non- smokers. So we say what percentage of the lung cancer patients are smokers? And if you remember, it was 140 out of 160 were smokers, which was 87.5 percent. So we start with the 2.4 million and we reduce it down to 87.5 percent. And here is the information about the non-smokers, here's the expenditures for the non- smokers that's being set aside, and here's the information -- here's the dollars for the smokers that's being retained.

Okay? Then we go to the second reduction. And the second reduction says what percentage of the smokers' lung cancer is actually caused by their smoking? Remember, we -- we recognized that there is the possibility of lung cancer -- rare, but there's the possibility of lung cancer even among non- smokers. So if that's true, it may be possible that some of the smokers would have gotten lung cancer even if they had not smoked, and it wouldn't be fair to attribute those cases to the smoking. So we start with this -- these dollars, the total dollars expended for smokers, and we reduce it a second time. And what we're doing is we're setting aside some fraction, some proportion -- some percentage of the dollars that corresponds to people who would likely have gotten their lung cancer even if they had not smoked, and that was 85.7 percent.

*6 Okay? So this white part of the bar is the percentage that we think might have gotten lung cancer even if they had not smoked, and the blue part is the part that -- is the part of the expenditures that corres -- that is actually caused by the smoking, what we say is caused by the smoking. Okay. So that gets us through the second reduction.

And now the final reduction is what dollar percentage is attributable to the lung cancer? And remember, the idea here is that even if you have lung cancer, there's some of the medical expenditures which have to do with conditions that -- that aren't caused by the lung cancer. You trip one day and you have a broken bone and your bones weren't in any way compromised by the lung cancer, so those dollars should not be included. So we take the average expenditures for persons who have lung cancer and we reduce that by the dollars we see spent for people who don't have lung cancer, and that -- this is the dollars that's being is set aside. Because, remember, there was 700 dollars spent on average if you didn't have lung cancer, and 14,300 more if you did, and so this reduction percentage is 95.3 percent. And so if we start over here on the left side with 2.4 million, apply the three reduction percentages, we end up with the total dollars which are actually attributable to the smoking, and that's 71.5 percent of the total dollars, or 1.7 million dollars.

Q. Professor Zeger, what is the basic purpose of the three reductions?

A. What the three reductions do is they take the information which is available from the claims data, and here, 2.4 million dollars, those are the total expenditures, and it sets aside the dollars that correspond to non- smokers, it sets aside the dollars that correspond to disease that wasn't caused by the smoking, and it sets aside the dollars that would have been expended anyway even if you hadn't had lung cancer, and it creates at the other end, it -- it -- it calculates at the other end the dollars that are attributable to smoking.

Q. Now the example illustrates how the three reductions work in the core model. Are the three reductions used in the refined model?

A. Yes. This is the part of what we do in the refined model, these calculations, over and over.

Q. Now you showed us how the core model works in this hypothetical -- hypothetical example of 10,000 Minnesotans. How do you use the core model to estimate smoking-attributable expenditures for the state and Blue Cross?

A. Well this was just a hypothetical example to illustrate how the core model works. What we do is we now go and get the actual Minnesota claims data, and instead of using hypothetical numbers here, we use the actual numbers for the more than 90,000 Minnesotans who had one of these major smoking- attributable diseases, and we then do these steps with those individuals, those individual expenditures.

Q. Well what are the steps in the core model for estimating a smoking- attributable expenditure with real data from the state of Minnesota and Blue Cross Blue Shield?

*7 And if you could illustrate those steps on the chart.

A. So what I'm going to do just briefly is lay out how that approach is used with the Minnesota data to calculate the smoking- attributable expenditures in the core model. So we're going to apply the ideas in the core model to the Minnesota data. So let me just write down the key steps.

So the first thing we do is we go to the Minnesota claims data and we find the people who have a major smoking-attributable disease, the ones that were identified by Dr. Samet. So we identify the people with a major smoking- attributable disease. I hope you don't mind if I abbreviate that MSAD, just to save space on the chart. And how do we do that? We go to the Minnesota claims data. And remember, there were a total of something like 280 million records that were processed to build this database of Minnesota claims, and we find all of the cases where somebody had a major smoking-attributable disease. That's the first step.

And then the other information which is available to us is the person's gender, a man or a woman, and -- and their age, and both of these are on the Minnesota claims data, and what we do is we break our calculations down into a few subgroups based upon -- we do -- do the calculations separately for men and women and for two age categories, and I can show you that in just a minute.

So now we have all the people who have major smoking- attributable diseases, like lung cancer, we have the person's gender and their age, and then what we do is we calculate the total expenditures, total dollars that were expended, actually expended by the state or by Blue Cross and Blue Shield to treat all of the - - to treat these people who had a major smoking-attributable disease, and those dollars are available to us in the claims records by just totaling up all of the expenditures for a particular person. We do that for all of the people.

So now what we have at this point is we have the total expenditures for people with particular disease, and we know their age and their gender. So it's now like we're at the left side of that last chart; that's all the expenditures.

Okay. Now what we have to do is we have to apply the reductions. Okay? So the next step is to apply the first reduction, and the first reduction asks the question what percentage of these persons we found in the Minnesota claims, what percentage of them are smokers? They have -- these people have lung cancer, for example, and now we need to know what percentage of them are smokers. And to get that information we turn to the National Medical Expenditure Survey, which is that large national survey that provides information to us about smoking, disease, and expenditures. And so we can look there to see of lung cancer patients, what fraction, what -- what percentage are smokers, and that's the -- that's where we -- we get the percentage here, and that's the percentage we apply to the total dollars for Minnesota.

The next step is to apply the second reduction. After the first reduction, we've set aside the non-smokers. Okay. So the second reduction says even among smokers, what -- what proportion of the disease was actually caused by their smoking? So what percentage of smokers' disease is attributable to their smoking? And to estimate that quantity, we use the National Medical Expenditure Survey data as well.

*8 And now there's one more reduction to make, the third reduction. Remember, the third reduction says what dollar percentage of all the medical expenditures for a person who has lung cancer, what proportion of those dollars, what percentage of those dollars is actually for treatment of the lung cancer or things related to the lung cancer? And the third reduction, we can calculate that from the Minnesota claims data, because in the claims data, remember, we know who has lung cancer and who doesn't, and we know how much dollars -- how many dollars were spent on people with lung cancer and how many dollars were spent on people with not -- without, and that's the basis of the information we need to make the third reduction. So this is the -- these are the steps to apply the core model to calculate smoking-attributable expenditures here in Minnesota.

Let me just quickly review. We identify the people with the major smoking- attributable disease using the 280 million Minnesota claims records, we also get their gender and age from the claims records, and then we calculate the total dollars actually expended by the state or by Blue Cross Blue Shield to treat these people who have one of these diseases. These are the actual dollars spent to treat the people who have one of these diseases. But that wouldn't be a fair estimate of the dollars caused by their smoking, so we have to reduce those dollars three times. The first two reductions, the information we need comes from the National Medical Expenditure Survey, and the third reduction, the information comes again from the Minnesota claims records, and that's how we apply the core model to Minnesota.

Q. Thank you, Professor Zeger. You can now return to the stand.

What statistical methods are used in the core model?

A. Well there are two main methods we're focusing on. The first is a method that we call stratification. It's a big word but quite a simple idea. We got the gender and age for all of these Minnesotans who had one of these diseases caused by smoking, and when we do the calculations, when we do the application of the three reductions, we do that separately for women, separate from men, and younger people, younger women separate from older women, younger men separate from older men, and that -- that -- that strategy is called stratification. We've broken the total persons into subgroups that -- that are more similar to one another. And the reason for stratification is so that when we talk about reductions, for example the second reduction, what proportion of the disease is actually caused by the smoking, we're actually comparing the rates of disease among smokers and non-smokers and we're -- and we're comparing people that are otherwise similar, they're of a similar age and a similar gender. So it's -- it's in order to -- to compare like with like to the extent possible.

And then the second method that's in the application of the model is a method called attributable risk. You may have heard about that before from Dr. Samet. Attributable risk is just a way - - or attributable proportion is just a way to take the total health-care burden and calculate the burden of disease that's caused by smoking. And actually the first two reductions taken together is a standard method of epidemiology and biostatistics called attributable risk, attributable proportion sometimes called.

*9 Q. Now with respect to stratification, you said that you compare like to like. Is that in order to isolate any difference that you want to measure between these two groups?

A. Yes. Remember we were looking at the number of people who had lung cancer among the smokers and the number of people who had lung cancer among the never smokers when we were trying to figure out how much of the smokers' cancer was actually caused by their smoking. That was when we were looking at the second reduction. And if we were comparing, you know, very old smokers with very young never smokers, that wouldn't be fair because age is also a factor in -- in when you get a disease. So you want to compare smokers and non-smokers who are otherwise similar.

Q. Now are these statistical methods; that is, stratification and attributable risk, common and standard in biostatistics and epidemiology?

A. Yes. They're the --

Of the things we teach, you know, new students, health professionals learning biostatistics, these would be two of the things we teach them very early in an introductory course. So these are standard methods that are used over and over in public health.

Q. Did you calculate smoking-attributable expenditures for the core model?

A. Yes.

Q. And did you prepare an exhibit of the expenditures for the state of Minnesota for lung cancer and COPD?

A. Yes, I did.

Q. Can you turn to Trial Exhibit 30184. Do you have that exhibit, professor?

A. I do.

Q. And is that exhibit illustrating the core estimate of expenditures for the state of Minnesota for lung cancer and COPD?

A. Yes, it does.

Q. Was this prepared by you?

A. Yes.

MR. HAMLIN: Your Honor, we offer Trial Exhibit 30184 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30184 for illustrative purposes.

BY MR. HAMLIN:

Q. Professor Zeger, I'm placing the exhibit on the easel, and again, with the court's permission, I'd ask you to come down and tell us what is on this exhibit.

A. On the flip chart, I had just listed the steps we have to go through, and what we did is we applied those steps to all of the expenditures by the state of Minnesota for the treatment of Minnesotans who had lung cancer or COPD, which as you recall were two of the -- two of the diseases Dr. Samet identified as being caused by smoking. And so as I indicated, we took the total expenditures for persons with lung cancer or COPD and we broke the people into four groups of -- subgroups of people: the women who were 35 to 64, the older women, the men who were 35 to 64, and the older men. And then we went through the steps that I showed you separately for each of these four subgroups. And sometimes we call this stratification, and these groups are sometimes called strata, and that's where the word "stratification" comes from.

So then what we did is we simply applied the three reduction percentages to the dollars separately in each of the groups. And I -- I can go through that now for one of them.

*10 Let's start with the women 35 to 64 years old. Remember, we take the Minnesota claims data, we find all the women 35 to 64 years old who have a diagnosis of lung cancer or COPD, chronic obstructive pulmonary disease. That's by searching those 280 million records, we find all of these people. And then we total up their medical expenditures paid for by the state. And in this case there were 115.4 million dollars in the Minnesota claims data, the state's claims data, that was paid to persons -- to women 35 to 64 who had lung cancer or COPD. So this is our starting point. These are the total expenditures.

But remember, we need to reduce the total expenditures three times to get the expenditures which are fairly attributable to their smoking. So we start with the 115 million, and we then ask what percentage of women 35 to 64 who have lung cancer or COPD, what percentage of them are smokers? And using the National Medical Expenditure Survey, we estimate 85.3 percent.

Q. Professor Zeger, you're pointing to a bar chart. What -- what is that?

A. Yes. If you -- if -- if you look at this small chart here, it's exactly the chart we looked at in the hypothetical example. It's -- it's showing the application of the three reduction percentages. So it's a little bit hard to see there, I know, but this first -- we start at a hundred percent, which corresponds to 115 million dollars, and we take 85.3 percent, which is the size of that blue part of the first bar, leaving a -- leaving back about 15 percent. Because from the National Medical Expenditure Survey, we estimate that among people -- among women 35 to64 who have lung cancer or COPD, 85 percent of them are smokers.

And then we go to the second reduction percentage. Remember, the second one says what percentage of smokers' disease is attributable to their smoking? So we go again to the National Medical Expenditure Survey and we compare the rates of lung cancer and COPD among women 35 to 64 years old, we compare the rate among the smokers with the never smokers, and we see the difference, and that difference gives us the second reduction, which turned out in this case to be 83.5 percent. So we start with all the dollars, we set aside dollars for non- smokers, and now we've just set aside dollars for smokers that can't be attributed to their smoking that might have occurred anyway.

And then we go to the final reduction. Remember the final reduction is what dollar percentage is attributable to lung cancer or COPD that's been caused by smoking? And that's comparing the average expenditures for people, for women 35 to 64 who have these diseases in the Minnesota claims data with women 35 to 64 years old who don't have these diseases, and we find that 78.7 percent of the total expenditures are actually attributable to the disease caused by smoking. And that's the final reduction, giving a total reduction of 56 percent.

And so we start with 115 million dollars actually expended by the state to treat women 35 to 64 who have lung cancer or COPD, those are the dollars actually expended and recorded in the records, and we take those dollars and we reduce those dollars by - - to 56 percent, or to 64 -- about 64.7 million dollars, and 64.7 are the smoking-attributable expenditures.

*11 Q. Would you take us through the other examples.

A. Right.

So that's for women 35 to 64. But we have three other subgroups of people. If we take the older women, there was a total of 80.5 million dollars expended by the state on women who had lung cancer or COPD, women 65 and older, 80.5 million. And we go through the three reductions. We get the percentage of women 65 and older with this disease who are smokers, turns out to be 93.8 percent, we then get the proportion of those dollars which are attributable to their smoking. Remember, that compares the rate of lung cancer/COPD in women 65 and older, the rate of these diseases in smokers and non-smokers, and we set -- excuse me, in -- in smokers and non- smokers, and we set aside those cases which might have occurred anyway, and then finally we reduce a third time to take only those dollars which are attributable to the disease that they have, and we get a total reduction proportion of 64.5 percent. And so we apply 64.5 percent to the total dollars, 80.5 million dollars, and we get smoking- attributable dollars which for this group of women is 51.9 million dollars.

And then for the men 35 to 64, 91 million dollars was actually in the claims records for persons who were diagnosed with lung cancer or COPD who were men 35 to 64 with lung cancer or COPD, and there were 91 million dollars in the claims records. We calculate the three reduction percentages, the first two from the National Medical Expenditure Survey, the third from the Minnesota claÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿims data, and we get a total reduction percentage of 45.3 percent. That's the percentage of all the dollars which is attributable to their smoking. And so we -- we put in the smoking- attributable dollars, not all 91 million, but 45 percent of the 91 million, or 41 million dollars.

And then finally for men 65 and above, the claims records identified a total of 55.7 million dollars expended to treat persons with lung cancer and COPD who were 65 and older men, and we go through the three reductions and we find that the percent of dollars attributable to their smoking is 58.9 percent. So we don't include all the dollars expended for them, we include 58.9 percent of those dollars, or 32.8 million dollars. And so if you then ask what is the smoking-attributable expenditures for the state to treat Minnesotans who had lung cancer or COPD diagnosis, and the answer to that is 190.8 million dollars, and those are the smoking- attributable expenditures.

Q. Now let -- let me ask you about the group of women 35 to 64 that are listed on this exhibit.

A. Yes.

Q. Now the percent of dollars attributable is 56 percent; correct?

A. Correct.

Q. Now among those women 35 to 64, are there non-smokers?

A. Yes.

Q. Let's consider the non-smokers. Do you take 56 percent of their costs as smoking-attributable expenditures?

A. No. That would be a misleading way to think about what was being done here. What we do is we take all of the dollars or nearly all of the dollars for smokers and none of the dollars for non-smokers, and when -- when you do that, you end up with -- that contributes to getting a rate of 56.0 percent.

*12 Q. And you pointed to the first bar chart.

A. Yes.

Q. Is that the first reduction?

A. The first reduction is actually where we set aside the dollars for non- smokers. That's the purpose of the first reduction.

Q. Let me ask you this: Suppose that there are women in this group of women 35 to 64 who are smokers and who have lung cancer and cirrhosis of the liver.

A. Uh-huh.

Q. Assume that cirrhosis of the liver is not caused by smoking.

A. Uh-huh.

Q. Does the core model include as part of its smoking- attributable expenditures 56 percent of this group's treatment costs for cirrhosis?

A. No. Again that's misleading. That's -- that's not what it does. What the purpose of the third reduction is, remember, the third reduction set aside dollars for -- for -- expended that had not -- nothing to do with the lung cancer or COPD, so that by using the third reduction we're setting aside those dollars for cirrhosis.

Q. Professor Zeger, have you also prepared a core estimate of the expenditures for the state of Minnesota for the other major smoking- attributable diseases?

A. Yes. Yes, we have.

Q. Let me direct your attention now to Trial Exhibit 30185. Is that the exhibit?

A. Yes. Yes, it is.

Q. And that sets out the core estimate of expenditures for the state for the rest of the major smoking-attributable disease?

A. Yes, it does.

Q. And this was prepared by you?

A. Yes.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30185 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30185 for illustrative purposes.

BY MR. HAMLIN:

Q. I'm now placing the exhibit on the easel.

Professor Zeger, the exhibit identifies CHD/stroke. Now what does that signify?

A. Remember, yesterday we broke all of the major smoking- attributable diseases into two groups. Suggestion of Dr. Samet. The first group was lung cancer and COPD, and then the second group were the other 10 -- I believe there were 10 major smoking- attributable diseases, and we've called that 10 CHD/stroke, but it includes more than just CHD/stroke.

Q. Let me put on the overhead Trial Exhibit 30153, which has previously been introduced into evidence, and that is the list of ICD-9 codes for the diseases caused by smoking identified by Dr. Samet?

A. Yes, that is correct.

Q. And can you identify for us which of those diseases fall into this category of CHD/stroke.

A. Yes. First let me just distinguish the major smoking- attributable diseases from what Dr. Samet called diminished health status, which is at the bottom. So the major smoking-attributable diseases are all the other ICD-9 codes and diseases listed in this display except diminished health status. And then we've already looked at two of these diseases, chronic obstructive pulmonary disease or COPD and lung cancer, in the previous calculations, and now what we're going to do here is look at all of the remainder of them.

*13 Q. Can you tell us now about the exhibit.

A. Yes. So now this is just an application of the core model approach to expenditures by the state for the treatment of persons who have all of those diseases other than COPD and -- COPD and lung cancer, and we're calling this group CHD/stroke for shorthand. And we did exactly the same thing that I described for you in the lung cancer/COPD case. We start with the medical claims records for the state. I think for the state there are approximately 220 million of the 280 million. So we start with all those claims, and we start with women 35 to 64, and we go through the medical claims records for Minnesota and we find all of those women 35 to 64 who had one of the diseases listed up there on the Elmo, and we total the dollars actually expended by the state to treat those women. And the total came out to be 306.9 million dollars were actually expended by the state of Minnesota in these programs, in the Medicaid and GAMC programs, to treat these women. All of these women are 35 to 64 and have had CHD/stroke or the other diseases on the table -- on -- on the Elmo.

And we then go through the three reductions again. We start with three hundred -- approximately 307 million dollars and we calculate the three reductions, the first two from the National Medical Expenditure Survey, and the third one from the Minnesota claims data, and we get a total reduction of 30.4 percent. And so the total dollars are 306.9 million. But 30 -- 30.4 percent of those dollars are attributable to smoking. We've reduced the amount to set aside the non-smokers, to set aside the CHD/stroke that wasn't caused by smoking, and to set aside the dollars spent for these people that didn't have anything to do with their CHD/stroke, and we end up with 30.4 percent of the dollars, or a smoking- attributable expenditure of 93.4 million dollars.

Now we do the same thing for the older women. We go back to the Minnesota claims records. We're now looking for women not 35 to 64, but women 65 and older who have one of these major smoking- attributable diseases. We find all those women and we calculate the dollars the state actually spent to treat those women. And the state spent 375 million dollars to treat women 65 and older that had one of these diseases caused by smoking.

And then we calculate the three reductions. Some of these women are not smokers, so we only take a fraction of the dollars. This -- this disease -- these diseases can occur in people who are not smokers as well as smokers, so we only take the proportion that corresponds -- that is actually attributable to their smoking. And these people, even if they don't have this disease, will have some expenditures, so we don't want all expenditures, only those that are attributable to their disease caused by smoking. And when we do the three reductions in this group, we get a very small smoking- attributable percentage, 2.3 percent. So the smoking-attributable dollars are 2.3 percent of 375 million, the total expenditures, to give 8.5 million dollars which are attributable to smoking.

*14 Then we go to the men 35 to 64, back to the Minnesota claims data, find all of the men 35 to 64 in Minnesota who had one of these diseases, total up the dollars that were actually expended by the state to treat these men. That gave us 291 million dollars. But all of those dollars are not attributable to their smoking, so we calculate the appropriate three reductions which turn out to give 48.4 percent. So the smoking-attributable expenditures are 48.4 percent of the 291 million dollars expended by the state for these men, or 141 million dollars.

And then the last step for the state for these diseases, CHD/stroke, is to go back to the claims record and find the men who are 65 and older who have these diseases, and then to find the dollars that were actually expended by the state to treat these men. It turns out to be 148 million dollars was expended by the state over the period of time we're looking at.

Then we go and calculate the three reductions, because these are the total expenditures, not the smoking-attributable expenditures, and the three reductions give us a total of 5.4 percent of the dollars attributable to smoking. So we take 5.4 percent of 148 million dollars, total expenditures, and attribute eight million dollars to smoking.

And so like we did for the last group, we then total the smoking- attributable dollars across the four groups of Minnesotans who had CHD/stroke and who were paid for by the state, and we get total smoking-attributable dollars of roughly 251 million dollars for this group.

Q. Professor Zeger, let me direct your attention to the column marked "Percentage of Dollars Attributable." We see there that the percentages for the younger group of women and the younger group of men are higher than for the older group. Can you explain that?

A. Yes. It actually is consistent with what we know about these diseases with the epidemiology that Dr. Samet has talked to us about in our working groups. Basically, younger people -- younger people get these diseases much less frequently if they're not smokers, so if you -- if you look at smokers, they get these diseases much more often when they're young than never smokers, and when you take older people, these diseases become more common even if you're not a smoker, and so the difference between -- in the rates of these diseases between smokers and non-smokers is more similar in the older ages than it is the younger ages, and that's exactly what shows up in our calculations. We get higher dollars -- percentages of dollars attributable to smoking for the younger people than for the older people, and so it's consistent with what we know about the epidemiology of these diseases.

Q. Now Professor Zeger, perhaps we could get the lung cancer/COPD estimate and put it underneath here.

Now could you compare the percentage of dollars attributable for the CHD/stroke category to the percentages that we see for the lung cancer/COPD category?

A. Yes. The other thing --

*15 The other pattern you notice when you look at these percent of dollars attributable is that overall a smaller -- a smaller percentage of dollars is attributable to smoking when you look at CHD and stroke versus when you look at lung cancer and COPD, that the numbers here are 56, 64, they're bigger numbers, and -- and the numbers over here are relatively smaller. And that, again, is consistent with what Dr. Samet has told us about the epidemiology, that smoking is the predominant cause of lung cancer and COPD. It's relatively rare to get these diseases unless you are a smoker. It can occur, but it's rare. Smoking is the predominant cause. Whereas for CHD/stroke, smoking is a major cause but not the only predominant -- not the predominant cause in the same way. And that's why it's sensible that this model, when applied to Minnesota, ends up taking a relatively larger proportion of the dollars as being smoking-attributable for lung cancer/COPD than occurs for CHD/stroke. It's consistent with what Dr. Samet has told us about the epidemiology of these diseases.

Q. Professor Zeger, have you prepared an exhibit illustrating the core estimates of expenditures by Blue Cross Blue Shield for lung cancer and COPD?

A. Yes.

Q. Let me direct your attention now to --

THE COURT: Counsel.

Q. -- trial --

MR. HAMLIN: Yes.

THE COURT: We're probably moving into a little different area.

MR. HAMLIN: Okay.

THE COURT: Maybe we should take a short recess.

MR. HAMLIN: Fine, Your Honor.

THE CLERK: Court stands in recess.

(Recess taken.)

THE CLERK: Court is again in session.

(Jury enters the courtroom.)

THE CLERK: Please be seated.

BY MR. HAMLIN:

Q. Professor Zeger, with the court's permission, could you come down once again to the chart.

Professor Zeger, did you prepare a core estimate of expenditures by Blue Cross Blue Shield for lung cancer and COPD?

A. Yes, I did.

Q. Let me direct your attention to Trial Exhibit 30186. Is that the exhibit?

A. Yes, it is.

Q. And that was prepared by you?

A. Yes.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30186 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30186.

BY MR. HAMLIN:

Q. We have a board here, Professor Zeger. Let's put it on the easel.

Can you identify the board first.

A. Yes. This is the exact same calculation we -- we had done previously for the state, but now we're going to use the Blue Cross Blue Shield data and calculate the core estimate of the expenditures for Blue Cross Blue Shield. And we're now going to focus upon Minnesotans who had lung cancer or COPD who were covered by Blue Cross Blue Shield.

Q. Can you describe for us what's on the exhibit.

A. We proceed in exactly the same way as we had for the state, but now we're using the Blue Cross Blue Shield claims records, of which I think there are roughly 60 million of those. And we again split the calculations into the four gender and age groups. And if we just start with women 35 to 64, we go to the 60 million Blue Cross Blue Shield claims records and we search through and find all of the women 35 to 64 years old who were diagnosed with lung cancer or with COPD, and we total up the dollars that Blue Cross Blue Shield paid for the treatment of these women, and that amount came to 26.7 million dollars, and that was over this period 1978 to 1996.

*16 And then we start with that 26.7 million, but remember, that's the total expenditures, and what we have to do is get the expenditures attributable to their smoking. So we reduce the 26.7 million, the total expenditures, three times with the three reduction percentages we've talked about, the first to set aside the non-smokers, the second to only take the proportion of lung cancer and COPD which is attributable to smoking, and the third to set aside dollars paid by Blue Cross Blue Shield for treatments that didn't have to do with the lung cancer or COPD. And in these women 35 to 64 years old, 64.4 percent is attributable to smoking. And so we take 64.4 percent of the 26.7 million dollars, or 17.2 million dollars, for women 35 to 64 covered by Blue Cross Blue Shield. These are women who had lung cancer or COPD.

And then we just carry on. And you'll be relieved to know that I'm not going to do this for every one of these. But we take 65 and older women, men 35 to 64, men 65 and older, each time we go back to the medical records, find the Minnesotans who have lung cancer/COPD, calculate the total expenditures, and then reduce those total expenditures with the three reduction percentages to get smoking-attributable expenditures which are now shown here on the far right for the four categories, different ages and different genders, and we add those four smoking-attributable expenditure numbers up and we come up with a total of 51.8, approximately 51.8 million dollars expended by Blue Cross Blue Shield to cover persons with lung cancer and COPD. That's the dollars that are attributable to the smoking.

Q. Did you prepare an exhibit illustrating the core estimates of expenditures by Blue Cross Blue Shield for the CHD/stroke category?

A. I did.

Q. Let me direct your attention now to Trial Exhibit 30187, and I ask you whether or not that is the exhibit?

A. Yes.

Q. And that was prepared by you?

A. Yes, it was.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30187 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 30187 for illustrative purposes.

BY MR. HAMLIN:

Q. Professor Zeger, the exhibit is on the overhead, and first of all, could you identify it and then take us through it.

A. Yes. If you could just slide that down a little bit so we could see the top. There you go.

This is now the same kind of display, again focusing on expenditures by Blue Cross and Blue Shield to treat persons in Minnesota who are -- have CHD or stroke. And remember, by "CHD/stroke" we mean the 10 diseases caused by smoking excluding -- the 10, but not COPD and not lung cancer. So it's the other -- other major smoking-attributable diseases. And what this display shows is the application of the core model to calculate the smoking-attributable expenditures for persons in Minnesota covered by Blue Cross and Blue Shield who ended up with CHD/stroke and the other major smoking-attributable diseases.

*17 And the application is identical to what we've now looked at. We break the persons into the four groups, women 35 to 64, women 65 and older, men 35 to 64, and men 65 or older. If we start with the women 35 to 64, we search through the 60 million records from Blue Cross Blue Shield and find all women 35 to 64 who have CHD/stroke, and we total their medical expenditures, which come to 127 million dollars. But that's the total expenditures. We're interested in the percentage that's attributable to smoking, and so we take the three reductions, the first reduction to set aside non- smokers, the second reduction to only get those dollars which are attributable to smoking, and the third reduction to set aside costs that are paying -- expenditures that are paying for things other than the treatment of CHD/stroke and related -- and related -- and -- CHD/stroke, the treatment of CHD/stroke. And the total percentage of reduction turns out to be 20.7 percent.

And so we take 20.7 percent of the total expenditures, 127 million, to get the expenditures attributable to smoking, which is 26.3 million dollars for these women 35 to 64 who are covered by Blue Cross Blue Shield and who are diagnosed with CHD/stroke and the other diseases in this group.

And then we do the same for women 65 and older, for men 35 to 64, and for men 65 and older. For women 65 and older, there is a total expenditure of 32 million dollars in the -- in the Blue Cross records for treatment of these women who have CHD/stroke. The percentage that's attributable to their smoking is 6.6 percent, which gives smoking-attributable dollars of 7.1 million.

Is that seven? Sorry, can't read it. Can I just look at the -- I'm sorry.

Q. Here, it's right here.

A. It's hard to see. Can I just look at --

Q. Yeah, it's right here.

A. Yeah. It's -- it's --

This is 32 million and that's 2.1 million, not seven. I'm sorry, 2.1 million. Thank you.

And then if we go to the men 35 to 64, a total of 281 million dollars were actually expended by Blue Cross Blue Shield to treat these men who have CHD/stroke, and 34.7 percent of it is attributable to smoking, or 97.7 million dollars.

And then finally we go to the older men, and there was a total of 55.7 million dollars in the Blue Cross Blue Shield medical claims records for these men who are 65 and older and who have CHD or stroke, and the reduction percentage comes out to be 11.2 percent. And so the smoking-attributable dollars is 6.2 million dollars.

And so as we did before, we now total the smoking- attributable expenditures for each of the different genders and age categories and we get a total smoking-attributable expenditures -- these are dollars expended by Blue Cross and Blue Shield to treat their Minnesotans who have CHD and stroke -- we get a total of 132 million that's attributable to smoking.

Q. Professor Zeger, let me direct your attention now to the column marked "Percent of Dollars Attributable" on the exhibit for CHD/stroke. Can you explain to us the pattern of percentages that we see there?

*18 A. Yes. It turned out exactly as it did -- not exactly, but like it did for the -- before when we looked at the state data. We see that there's relatively a higher percentage of dollars attributable for the younger women than for the older women, 20.7 percent versus 6.6 percent, and a higher percentage of dollars attributable for the younger men than for the older men, 34.7 percent as opposed to 11.2 percent. And we talked about that already. That's consistent with the epidemiology of these diseases which says that these things are relatively less rare among older persons, they're more rare among younger persons except among smokers, and that's why you see this difference.

Q. Can you --

A. And --

Q. Go ahead.

A. -- the other thing I want to point out about this chart is if you look at these numbers, they range from six to 35 percent, that's for CHD/stroke, and if you look back here at the lung cancer/COPD percent attributable, they're much bigger, they're much bigger. And again, that's consistent with the epidemiology that Dr. Samet described to us, because for lung cancer and COPD, smoking is the predominant cause of these diseases, whereas for CHD/stroke, it's a major cause but not the only, predominant cause. So we would expect to see larger percentages for lung cancer and COPD than we do for CHD/stroke, and that's how it turned out.

Q. Professor Zeger, could you now prepare a summary of the core model results on the chart?

A. Sure. All I'm going to do here is summarize what we saw for the four tables presented.

So we are going to look for each of the payers, the state or Blue Cross and Blue Shield, and for each of the disease categories, COPD and lung cancer versus the others, what were the smoking- attributable dollars. Excuse me if I brought a little piece of paper to -- I didn't put them to memory. So for the state, when we looked at lung cancer or COPD, the smoking-attributable dollars came to 191 million dollars. That's what we showed on the first chart. And then we went to the -- again the state, but now we looked at CHD/stroke and the other major smoking-attributable diseases, and the total dollars came out to be 251 million dollars. So for the state, for Medicaid and GAMC, the total smoking- attributable dollars is sum of these two, which is 442 million dollars.

And then we did the same thing using the Blue Cross Blue Shield records. So if we look at Blue Cross and Blue Shield and now start with the lung cancer/COPD cases, we found all the persons with lung cancer/COPD covered by Blue Cross Blue Shield, we calculated the smoking-attributable expenditures for them, and it came out to be 52 million dollars.

And finally Blue Cross Blue Shield records looking at CHD and stroke, and there the smoking-

And if we want to then get a total for both the state and Blue Cross Blue Shield -- if my addition is correct -- it's 626 million dollars.

*19 Q. Professor Zeger, could you now go to the chart where you identify the conceptual structure of the model and tell us what portion of the conceptual structure of the model this 626 million dollars applies to.

A. Yes. If you recall, we broke down this problem into estimating smoking- attributable expenditures for different groups of expenditures, we distinguished the medical expenditures from the maintenance fees in nursing homes, and within the medical expenditures we distinguished dollars spent to treat persons who had these major diseases, lung cancer and COPD or CHD and stroke, we separated those from diminished health. And all of the calculations I've just shown you were for the major smoking- attributable diseases, they were not for diminished health and they were not for the nursing homes. So it was this part of the smoking- attributable expenditures where we've now calculated 626 million dollars using the core model.

Q. Okay. So the core estimate for the major smoking- attributable diseases is 626 million dollars?

A. Yes.

Q. Did you do a core estimate for the diminished health portion of the model?

A. No.

Q. Did you do a core estimate for the nursing home portion of the model?

A. No.

Q. Why?

A. The purpose of the core model was to show how the calculations worked, to make clear how they work, and so we focused on the major smoking- attributable diseases when we -- when we worked -- used the core model.

Q. Does the refined model address all of the categories listed on your -- your chart here?

A. Yes. The refined model does major smoking-attributable diseases as the core model did, but it also then addresses expenditures from diminished health and in nursing homes.

Q. And is Dr. Wyant going to testify about the expenditures for the refined model?

A. Yes, he is.

Q. Okay. Which will include expenditures for all the categories; right?

A. That's correct.

Q. Okay, thank you. You can now return to the stand.

Professor Zeger, I've now placed on the easel Trial Exhibit 30184, which is the core estimate of expenditures for the state of Minnesota for lung cancer and COPD. Do you see that?

A. Yes.

Q. What population is the core model designed to address?

A. In that display we've designed the core model to estimate the expenditures by the state to treat Minnesotans with lung cancer and COPD, the expenditures which are attributable to the smoking, so it's to estimate -- it's to take the total dollars expended for -- by the state and to get the total attributable expenditures, so it's the 190 million dollars at the bottom right of that display which was the target of the core model.

Q. Did the core model focus on any of these subgroups that are listed on the exhibit?

A. No. The core model used stratification; that is, it broke down the calculations into some subparts in order to get the best - - an accurate and reliable estimate of the total. But we didn't break it down in order to get a separate estimate for each of these subgroups that we would use on its own; rather, we were trying to estimate the total as reliably as possible.

*20 Q. But why not use this approach to focus on the subgroups?

A. Well the law of averages, which we talked about before, helps us get a reliable estimate of the total, because you may have some pluses and minuses in smaller subgroups, and those will tend to cancel each other out when you -- when you total. So the total tends to be more reliable than the -- relatively more reliable than the values in any particular small subgroup.

Q. Now you just talked about the law of averages. Now is that -- does that refer to the coin flip example?

A. Yes. I illustrated the law of averages with that coin toss.

Q. Could you approach the flip chart and talk about that, --

A. Sure.

Q. -- the coin tosses, explain why the core model doesn't focus on subgroups.

A. This is just to make the point that if you were trying to estimate the proportion of heads in this simple coin-tossing experiment, the most reliable estimate is the proportion of heads observed in all 20 tosses, which came out to be 55 percent. And you could think of the subgroups as being like sets of -- of a few tosses which, when added together, give us the total amount, and what the law of averages tells us is that the overall percentage is more reliable than the percentage in any of the one subgroups.

So, for example, if we look at the first subgroup of four, we see that there's 25 percent heads. That's further from the true value of 50 percent than is 55 percent, the value we see by looking at all the coins. So while it -- you -- you could do the calculation four tosses at a time, what you really -- the best estimate comes from using all of the information, because the law of averages helps you there.

Q. Well take the subgroup of the four heads. Which gives you a better idea of the law of averages, that subgroup or the entire 20 flips?

A. Yes. If you were trying to estimate the proportion of heads, it would be quite silly to rely on this set of four tosses and say, oh, this is a coin that only gives heads. The proportion of heads in this subgroup is a hundred percent, but what happens in the law of averages is that you keep tossing and you add up the different subgroups, the heads and tails tend to balance each other, and the overall percentage is 55 percent, which is closer to what we know in this case to be the truth when we toss a fair coin.

Q. Well, can you just set aside that subgroup of four heads and come up with a reliable estimate of the law of averages?

A. No.

The -- the other thing, in addition to not just using a subgroup and saying, you know, that's the best estimate, you certainly wouldn't want to search along these sequences of heads and tails and identify a subgroup which was of some interest, all heads, and then say, oh, we're going to set those aside, because look, they were all heads there, can't be right, and -- and then take the percentage of the remaining heads and tails. What would happen? Rather than having 11 heads, we would set aside four and we would have only seven heads, and so seven out of 20 is 35 percent. And what -- what we did is we didn't -- we didn't allow the law of averages to play a role. We set aside a set of tosses because of what happened in those tosses, and so we couldn't get a fair assessment of the percentage of heads when we do so. So that would not be a sensible thing to do.

*21 Q. And what is the sensible thing to do?

A. The sensible thing to do is to take all the tosses and look at the proportion of heads, which here came out to be 55 percent.

Q. And can you relate that, then, to the core estimate?

A. Yes. In the core estimate we've -- we've made calculations separately for four strata because we wanted to compare like with like. But the sensible thing to do in terms of estimating total smoking-attributable expenditures is to look at the totals across the different gender and age groups rather than looking at values of a particular age group. That would be more reliable.

Q. Thank you.

Now let me ask you about estimating the smoking-attributable expenditures. Suppose that you looked at a population of Medicaid recipients, and suppose that that population includes smokers and non-smokers. Would you compare the average medical cost of all smokers to the average medical cost of all non- smokers to get a smoking-attributable expenditure?

A. No, I would not do that.

Q. Why?

A. There are several reasons, but let me address two of them.

The first is in order to make a calculation of smoking- attributable expenditures, you have to rely on what you know about medicine, and Dr. Samet has told us that smoking causes disease and disease is what results in expenditures. So if you just took the average expenditures for smokers and the average expenditures for non-smokers, you would be ignoring all of the information about disease. You would -- you would not be building your calculation on a medical foundation, which is essential. And in this case in Minnesota, you would be ignoring all of the information available about Minnesotans, you would be ignoring the more than 280 million claims records that have what disease these Minnesotans have who are covered by Medicaid and Blue Cross Blue Shield. So rather than going to where the expenditures are likely to occur in those diseases that are caused by smoking, you would be just treating everybody the same whether they had lung cancer or not. So it -- that approach ignores the medical foundation and it ignores the best source of information about Minnesota; namely, the claims records which we have for every Minnesotan and how much was expended and what disease it was expended on. So that's the first reason.

And then there's a second reason I would mention, and -- and that has to do with this idea of comparing like to like. Let me just give an example of comparing like to like. Imagine we wanted not -- not to look at the effect of smoking, but to look at the effect of skate boarding, and so we went and got a group of Minnesotans, skate boarders down around the lakes, say, in the summer, and we calculated their average medical expenditures, and then we wanted to compare that to others who don't skate board, so we took a sample of Minnesotans and we calculated who didn't -- and we found out the ones who didn't skate board, and we calculated their average medical expenditures. So we have medical expenditures for skate boarders and medical expenditures for non- skate boarders.

*22 Can we take the difference between those two and say that's due to skate boarding? No.

Why not? Well, think about skate boarders. I don't know about you, but I don't skate any more because I'm too old. Skate boarders tend to be young. In fact they tend to be in the age 10 to 20. And citizens of Minnesota on average are older, tend to be older. And what do we know about medical expenditures for older people relative to young -- young, healthier people? Older people tend to have higher medical expenditures. So the problem of comparing skate boarders who are 10 to 20 with a sample of Minnesotans who tend to be older is that you won't be seeing the effect of skate boarding, it will be mixed in with the differential and expenditures due to age. You won't see it.

And that's why we do stratification, so that you compare like to like. What you should do is compare 10- to 20-year-old skate boarders with 10- to 20-year- old non-skate boarders, and then you can make a fair comparison to see what the possible expenditures are related to skate boarding. Now that's a, you know, silly example, but now let's go back to the case of smoking.

If we compare the average expenditures for smokers with the average expenditures for non-smokers, we're ignoring one medical fact, which is that smoking causes disease but it also tends to kill people prematurely, and the effect of killing people -- people prematurely is that the set of -- the group of smokers tend to be a bit younger than the group of non-smokers. Otherwise, other things being similar, because we've killed some of the smokers prematurely, they don't get to live to be as old. So if you just compare average expenditures for smokers and non-smokers, you won't be comparing like to like, because the non-smokers will tend to be a little bit older because they've lived longer; the smoking hasn't killed them.

So that simple comparison of taking average costs for smokers and average costs for non-smokers is -- is not sensible for the two reasons. First is it ignores the very valuable information that we have available to us. First, we know that smoking causes disease which results in expenditures, and we have enormous amounts of information about Minnesotans and the diseases that they had, so to ignore that information, to treat lung cancer patients no differently than anybody else walking on the street would be silly if you're really interested in looking at smoking-attributable expenditures.

And then secondly, smoking not only causes disease but it kills people prematurely, and so you can't just calculate the average expenditures, you have to compare like with like, you have to compare people of a similar age as well.

Q. So would comparing the average medical cost of all smokers to the average medical cost of all non-smokers make it easier or harder to estimate a smoking-attributable expenditure?

A. It would make it harder.

MR. HAMLIN: Your Honor, that's all I have. The only thing that I -- I want -- would like to do now is I would like to mark the charts that Professor Zeger has prepared and offer them. If I could do that now.

*23 BY MR. HAMLIN:

Q. Professor Zeger, for the record, I'm showing you what I've marked as Trial Exhibit 25050. Could you identify that for me.

A. Yes. That's the chart that shows the set of 20 coin tosses in order to illustrate the statistical principle, the law of averages.

MR. HAMLIN: Your Honor, we offer Trial Exhibit 25050 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 25050 for illustrative purposes.

BY MR. HAMLIN:

Q. Professor Zeger, let me show you what I've marked as Trial Exhibit 25051. Can you identify this chart for me.

A. Yes. That was a chart which shows the medical foundation for our approach to calculating smoking-attributable expenditures, that smoking causes disease which results in expenditures, and then shows how we partitioned the estimation of smoking-attributable expenditures into parts, and it shows the medical versus nursing home and then among medical, major smoking-attributable diseases versus diminished health, and then it also shows the total dollars estimated, smoking-attributable, to the major smoking-attributable diseases, that's 626 million dollars.

MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 25051 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 25051 for illustrative purposes.

BY MR. HAMLIN:

Q. Professor Zeger, I want to direct your attention now to Trial Exhibit 25052. Can you tell me what that is.

A. Yes. That exhibit shows how we use the ideas in the core model to apply them to the state of Minnesota, and it identifies the steps that we take and the source of the data for -- to take each of those steps.

Q. Then finally, Professor Zeger, I want to show you Trial Exhibit 25053. Can you identify this.

A. Yes. This exhibit summarizes the application of the core model to the state of Minnesota and Blue Cross Blue Shield, and summarizes the smoking- attributable dollars for the state and for Blue Cross Blue Shield for each of two groups of diseases, lung cancer and COPD in the one group, and CHD/stroke and the other major smoking-attributable diseases in the other group, and then calculates the total smoking-attributable dollars for those groups.

MR. HAMLIN: Your Honor, plaintiffs offer at this time Trial Exhibit 25052 and 25053 for illustrative purposes.

MR. GARNICK: No objection.

THE COURT: Court will receive 25052 and '53 for illustrative purposes.

MR. HAMLIN: I have no further questions of this witness, Your Honor.

MR. GARNICK: Your Honor, I'm going to need a few minutes to set up, if the court prefers early lunch, or I could set up as quickly as I can. It will be a few minutes.

THE COURT: Why don't we have an early lunch. We'll recess at this time and reconvene at 1:15.

THE CLERK: Court stands in recess until 1:15

(Recess taken.)
 

THE CLERK: All rise. Court is again in session.

(Jury enters the courtroom.)
 

THE CLERK: Please be seated.

THE COURT: Counsel.

MR. GARNICK: Thank you, Your Honor.

Good afternoon, ladies and gentlemen.

(Collective "Good afternoon.")

BY MR. GARNICK:

Q. Good afternoon, Dr. Zeger.

A. Good afternoon.

Q. We've never met. I'm Murray Garnick and I represent Philip Morris.

A. Nice to meet you.

Q. Dr. Zeger, you were asked to look at expenditures made from 1978 to 1996 by the state and Blue Cross for health-care services attributable to smoking; correct?

A. Yes.

Q. Okay. And to do that, you developed a series of models; correct?

A. We -- we developed a -- a core model and a refined model, yes.

Q. Okay. And you developed --

Well let's put the core model over here. As I understand it, your final damage estimates in this case are not based upon the core model; is that correct?

A. Not entirely.

Q. Well they're not derived from the core model.

A. The final damage estimates are calculated used -- calculated using the refined model.

Q. Okay. All right. And there are --

Is it fair to say that there are three parts of the refined model?

A. I'm not sure. It depends how you define "parts."

Q. Okay. Well there's the major smoking-related diseases. Is that a separate model or is that a part of a model?

A. There's the major smoking-attributable diseases. Those are a set of expenditures.

Q. Okay. And that's part of the refined model.

A. It's not -- it's not a part of the model. Remember, we -- well it's not a part of the model. I mean the model was organized to deal with information that was broken down into categories, one of which was expenditures to treat Minnesotans who were suffering from major smoking-attributable diseases. So we -- we broke down the information in the claims data.

Q. Okay. So one category is the major smoking-attributable diseases; correct?

A. That is a category of expenditures.

Q. Right.

A. Yes.

Q. Category of expenditures.

A. That's correct.

Q. Another category of expenditures are expenditures for diminished health; correct?

A. That's correct.

Q. And another category of expenditures is for nursing home maintenance fees; correct?

*2 A. Correct.

Q. Okay. And together, these categories are designed to capture all or almost all of the medical expenses incurred by smokers and paid by the state and Blue Cross Blue Shield; is that correct?

A. Well not exactly, no.

Q. Why not exactly?

A. Because the models are -- the models are used to take the total expenditures paid by Blue Cross Blue Shield and the state and to calculate the attributable -- the dollars that were attributable to smoking.

Q. Okay. But these -- these --

This model, refined model, was designed to determine those costs attributable to smoking paid by the state and Blue Cross Blue Shield.

A. That's correct.

Q. And it was designed to determine all such costs; correct?

A. Correct.

Q. Okay.

A. Approximately correct.

Q. By the way, doctor, has the refined model ever been published?

A. Not yet.

Q. And has the core model ever been published?

A. Not yet.

Q. Now you testified that Dr. Wyant is going to talk about the refined model; correct?

A. Correct.

Q. And so you have not offered in court an opinion as to the validity or the accuracy of this refined model; correct?

A. Not entirely correct.

Q. Well how have you --

You have testified about the refined model?

A. I've testified about the core model, which was so named because the calculations are at the core of the refined model, and so the testimony provided to the jury about the core model is obviously relevant to assessing the -- the refined model. So to that extent my testimony is relevant to the calculations from the refined model.

Q. Well that's not my question. My question is: Have you testified about the validity or the accuracy of the refined model?

MR. HAMLIN: Objection, Your Honor, asked and answered.

THE COURT: I think it's been asked and answered, counsel.

Q. Doctor, have you testified about the validity or the accuracy of the final damage estimates derived from the refined model?

MR. HAMLIN: Objection, asked and answered. It's the same question.

THE COURT: No, it's a different question.

A. My testimony about -- about the core model is relevant to the accuracy and validity of the damage estimates from the refined model because the refined model uses the core calculations at the heart of the things being done in the refined model.

Q. The refined model uses the core calculations? You mean the general approach; is -- is that correct?

A. It certainly uses the general approach, but actually uses calculations that are very close to what is done in the core model, just done in a -- in a more refined way.

Q. Okay. But again, the final damage estimates come from the refined model but not the core model; correct?

A. That's correct.

Q. By the way, doctor, who determined what factors, what variables to use in the models?

A. As I testified, our models were built in a collaboration that included Dr. Wyant, myself, Dr. Miller and Dr. Samet. And Dr. Samet was the medical expert, the epidemiologist, and when we had to make decisions about variables to include in the final model, we had -- we -- we met regularly as a group, we had discussions about it. Dr. Samet provided the expert judgment related to the medical background necessary to make these decisions, and then Drs. Wyant, Miller and myself were responsible for making the final decision about a variable in the model. But we relied heavily on Dr. Samet's opinions about the potential for certain variables to be important to the model.

*3 Q. Did Dr. Samet make any recommendations concerning what possible confounders to use?

A. I just described the process. We -- we're a collaborative team. We discussed possible confounders and we ultimately made a decision, but -- but for the statistical modeling part it was the three statisticians and health economist that made the final decision.

Q. If Dr. Samet testified that he did not make any recommendations concerning what confounders to use or potential confounders to use in the model, would that be correct or incorrect?

MR. HAMLIN: Objection, Your Honor, I believe that mischaracterizes Dr. Samet's testimony. I think it's improper use of testimony from one witness to question another.

MR. GARNICK: Your Honor, I'd be happy to read his testimony and ask if that would be correct or incorrect.

THE COURT: Maybe you would be better off reading his testimony.

MR. GARNICK: Okay. Do we have a copy for the witness?

May I approach the witness, Your Honor?

(Document handed to the witness.)

BY MR. GARNICK:

Q. Dr. Zeger, if you could turn to page 3842 --

A. I'm sorry, Mr. Garnick, I couldn't hear the page.

Q. 3842.

A. 3842. Thank you.

Q. Line 16.

"Question: Did you provide any" --

And this is a question to Dr. Samet.

"Question: Did you provide any recommendation as to which potential confounders the authors of the model should take into account with respect to heart disease or lung cancer?

"Answer: I described my recommendations concerning the models yesterday. Those recommendations do not include confounding."

Would that statement by Dr. Samet be correct or incorrect?

A. Well what Dr. Samet said prior to that testimony was that he met with us on many occasions -- I think it says at least 10, but I think if you count, it may even be more -- and at all of those -- many of those meetings there was detailed discussions about confounding, and -- and Dr. Samet contributed substantially to our understanding of which the important confounders might be; for example, that we should, even in the core model, stratify by age and gender, and -- and also provided us access to literature that described confounders.

In the end, Dr. Samet did not give me a piece of paper which said here are the confounders, nor did he say you must have these in the model. And he was a participant in the discussions. He provided medical expertise. And it was upon that expertise which we relied when we made a decision about which variables to include in the model or not.

Q. Doctor, did he make recommendations as to which variables should be included in the model?

MR. HAMLIN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. I want to go back to your air -- airplane -- airport analogy, your model on going to the airport. Now the point of the model, as I understand it, is to account for enough information to make this model generally applicable to people who may want to use and want to know how long it will take to go -- to get to the airport; correct?

*4 A. Could you repeat the question? I'm sorry.

Q. Sure.

The point of the model, the point of a model like this is to take into account enough information to be reasonably accurate so that someone can rely upon it in determining how long it's going to take to get to the airport.

A. The purpose of this model was to illustrate to the jury what I meant when I talk about a model, and to also make the point that models, while the word sounds technical, it really just represents something that we all do every day.

Q. But if I were to have a model like this, okay, in order to be useful, it would have to take into account enough information to be reasonably accurate and to give me reasonably accurate information about how long it would take to get to the airport; correct?

A. I -- I can't agree with that sentence just because you're using several terms that have statistical meanings, and I'm not exactly sure what you mean by them.

This -- this -- the purpose of this model, this little example, was to illustrate to the jury what we mean about -- what we mean by the words "statistical model," and -- and that's really all it was intended for.

Q. Is it possible to create a model that would let me know how long it would take to get from here to the airport?

A. Well, this is an example of a very simple two-by-two table which describes the average time to the airport, depending on where you leave from and what time of day you leave. So it is -- it is possible to have an illustration like this, --

Q. Okay.

A. -- since I did it.

Q. And a model must take into account a certain amount of information in order to be reasonably reliable; correct?

A. It's a vague question, Mr. Garnick. "A certain amount of information," I don't know exactly what you mean by that.

Q. You must take into account enough information to be generally applicable; correct?

A. But I don't know what you mean by "generally applicable."

Q. I mean it in the layman's sense, doctor.

A. Well being from out of town and having no prior sense of how long it takes to get to the airport -- it could be 10 minutes, it could be an hour, it could be two hours -- this model would be generally applicable to me because it laid out for me roughly the time, it's not two hours, it's not 10 minutes, but it's a little bit in between, it's in between, and it gave me some indication that it takes longer in Minneapolis/St. Paul during rush-hour than not during rush-hour, and it also told me that it takes longer from Minneapolis than -- than from St. Paul. So that would be useful information to me, a person who didn't have a lot of outside knowledge about the time. So in that sense this model is useful and applicable for me.

Q. And the model would become more accurate and more useful to the extent that it takes into account more information; correct?

A. Not necessarily, no.

Q. Well certainly this model would become more useful and more accurate to the extent that it took into account different kinds of things that a person may encounter on the way to the airport.

*5 A. Maybe, and maybe not.

Q. Well let's -- let's look at this factor that you took into account, snow. If snow was not in that model and there was a foot of snow on the ground, the model -- if I wanted to know how long it would take to get to the airport, that model would give me the wrong answer; correct?

A. It may or it may not. I don't know very much about snow removal in Minneapolis and St. Paul, but I'm sure it's better here than it is in Baltimore where I come from, and so I -- I can't answer the question specifically.

What snow was in the model to illustrate was that it's possible to take a model that's represented in a table and then to write it down in a formula so that you could add other variables that may or may not be useful. I wasn't suggesting, not being from this area and not knowing about snow removal, that we should really add four minutes every time -- for every inch of snow. I really didn't know that about.

Q. Well let's assume that's right. Let's assume you add four minutes for every inch of snow and you don't take snow into account in the model and there was a foot of snow on the ground. If I relied upon this model without the snow variable, I would get a wrong answer.

A. Well it depends what you mean -- what question you're asking.

Q. I'm asking how long it would be needed to drive to the airport.

A. Yes, you would --

If snow was an important predictor, if we -- if we assume that hypothetically, and if you didn't take account of snow, then the predicted -- predicted time to the airport would be underestimated in that model relative to what would actually happen if -- if snow was important.

Q. And in fact I could well miss my plane; couldn't I?

A. It would be possible, depending on the situation, yes.

Q. All right. And -- and so if there's not enough information in the model, not only might you get the wrong result, but you might miss your plane; correct?

A. If you were going to the airport to take a plane and if you weren't sensible enough to leave some additional leeway, as most of us do, that is a possible outcome.

Q. Now if I wanted to get to the airport and there was a rain storm, that model may or may not be correct; right?

A. Again, I -- I -- I can't speculate about, you know, rain here and what the traffic is. But this model was only meant to illustrate what we mean by the word "model" when we talk about them.

Q. And if I wanted to get to the airport and there was a hail storm and the model didn't take into account hail storms, again the model could well be incorrect; right?

A. The predictions of the time to the airport might not reflect the influence of hail that happens here in Minneapolis commonly.

Q. And the same thing, if I was trying to get to the airport and I got a flat tire or if I got lost, the model may -- may be inaccurate because it doesn't contain that information; correct?

A. I wouldn't say that the model is inaccurate, the model would -- would reflect what happens on average. You know, what happens on average might well include that occasionally people have flat tires or occasionally people take wrong turns. In that case it might not be incorrect.

*6 Q. Well if the snow variable was not in the model, and if it was winter -- not this winter, another winter -- the model the may not apply to any trip to the airport during that -- during that season, during winter; right?

A. Again, I said I'm not an outside -- I'm not an expert on time to the airport. What -- what may be true is that those coefficients represented there, those numbers, 15, 10 and 20, were developed for the winter, in which case it would be correct.

Q. Well let's take a look and see what information the core model uses. Now the core model determines smoking-attributable costs for all the major smoking- attributable diseases; correct?

A. All of the diseases identified by Dr. Samet, the major smoking- attributable diseases identified by Dr. Samet.

Q. And that includes lung cancer; correct?

A. Correct.

Q. It includes heart disease; correct?

A. Correct.

Q. Now does the core model consider and factor and take into account residence, where a person lives?

A. Where in Minneapolis? It may -- excuse me, where in Minnesota? It takes account that somebody lives in Minnesota.

Q. Does it take into account whether they live next to a toxic waste dump or if they live on the farm or if they live in the city?

A. It does not.

Q. Okay. Does it take into account place of birth?

A. It does not.

Q. Does it take into account family history?

A. Of what?

Q. Of any of the -- any one --

Of anyone. Does it take into account family history of anyone in the NMES database?

A. Well the -- the core model takes into account the fact that the person has a particular disease or not. It does not take into account the question of whether a relative of theirs has that disease.

Q. So it doesn't take into account --

It doesn't ask the question does -- is -- for example, with heart disease, does everyone in the person's family have heart disease, it doesn't ask that question; correct?

A. No. As I just stated, it -- it takes account of whether the person has heart disease, not whether their family has it.

Q. Now does it take into account a person's prior medical history?

A. In --

Not directly, no.

Q. Does it take into account whether a person has hypertension?

A. Only to the extent that hypertension causes them to have coronary heart disease or is caused by smoking. And it does not measure whether they have hypertension or not.

Q. Does the model take into account whether a person has high blood pressure?

A. No.

Q. Does the model take into account whether a person has diabetes?

A. No.

Q. By the way, doctor, the model also doesn't look at someone's medical records; does it?

A. Models can't look at medical records.

Q. Well the people running the model do not look at any individual's medical records; do they?

A. The people working on the model did review claims data.

Q. But claims data are not medical records; are they?

A. They're not the same, no.

*7 Q. Okay.

A. It would be inappropriate, in my opinion, for persons working to estimate smoking-attributable expenditures to intrude upon the privacy of a doctor and patient by looking at medical records.

Q. Does the model ask about exercise?

A. Models don't ask questions.

Q. Well you know what I mean, doctor. Does the model take into account information about exercise?

A. The core model does not use information about whether these persons in Minnesota who had these diseases exercised or not.

Q. In fact, isn't it true that smokers tend to exercise less than non- smokers?

A. I don't have expert knowledge about -- about that.

Q. You don't. You don't know one way or the other?

A. I said I don't have expert knowledge about that.

Q. What about alcohol consumption, does -- does the model take into account alcohol consumption?

A. The model does not consider whether a person drinks alcohol or not.

Q. Isn't it true, doctor, that smokers tend to drink more alcohol than non- smokers?

A. I have no knowledge as to whether that's true or not.

Q. What about diet, doctor, does the model take into account a person's diet?

A. It does not.

Q. So it doesn't matter to the model if a person eats 10 Big Macs a day or eats five helpings of fruits and vegetables a day; correct?

A. The core model does not have information about whether a person eats 10 Big Macs a day or not, except to the extent --

Yeah. It doesn't. It doesn't.

Q. What about depression, does the model take into account whether a person is depressed or not?

A. The core model does not take into account any information about depression.

Q. What about occupation, does the model take into account a person's occupation?

A. The model takes into account whether a person is covered on Medicaid or Blue Cross Blue Shield, and there is some information in that stratification that's obviously related to a person's occupation.

Q. Is it your testimony that the core model takes into account a person's occupation?

A. It's my testimony that the model takes into account whether a person is being covered by Blue Cross Blue Shield or by Medicaid or GAMC, and Medicaid and GAMC are programs for poor people, which tend to have certain sorts of occupations, and so there is some information, I'm sure, about occupation in the differentiation between Blue Crosÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿs Blue Shield and -- and state.

Q. But you would agree with me that the model does not take into account occupation per se.

A. Over and above what I've just testified, that's correct.

Q. So if a person is in an occupation that might subject him or her to asbestos or heavy metals, that would not be taken into account by the model, except to the extent that you indicated.

A. That's correct.

Q. Okay. What about marital status, does the model take into account marital status?

A. The core model does not take into account marital status. The refined model does.

Q. What about race, does the model take into account race?

*8 A. The core model does not take into account race. The refined model does.

Q. What about education, does the core model take into account education?

A. Same answer.

Q. And that answer is?

A. The core model does not take into account education. The refined model does.

Q. And why does the refined model take into account education?

A. Because the purpose of the core model was to make simpler calculations that illustrate the principles used in our modeling; that is, starting with the total dollars expended by the state to treat Minnesotans who had these major diseases, and to reduce those total expenditures to expenditures which are attributable to smoking in a simple way. And in order to take account of all of these factors, it would require refinement, and that was not the purpose of the core model.

By comparing the core model to the refined model, we're able to see whether it matters to take any these things that you -- some of these things that you've written on the board into account or not.

Q. In fact that's one of the reasons, isn't it, that your final damage estimates derive from the refined model and not the core model; correct?

A. I'm sorry, could you repeat the question? I didn't understand it.

Q. That is one of the reasons why your final damage estimates derive from the refined model and not the core model; correct?

A. "That" being --

I didn't understand what "that" was.

Q. That being that the core model doesn't take into account any of these factors.

A. The refined model is a refinement in the sense that it does take additional factors into account, and that might be one -- one perhaps small reason why we relied on the refined model. Personally, I think the --

Yeah, that might be one reason.

Q. Now the refined model doesn't take into account all these factors; does it?

A. I didn't say that it did, no.

Q. Now let's go back.

Does the core model take into account a person's weight?

A. It does not.

Q. Does the core model take into account a person's income?

A. Only insofar as the coverage is coming from Blue Cross Blue Shield versus state programs for the poor, so there is taking into account income in that sense.

Q. But beyond that it doesn't take into account income; is that correct?

A. Well it takes it into account in that sense.

Q. Oh.

A. Not beyond.

Q. What about radon exposure, does the core model take into account radon exposure?

A. It does not.

Q. What about illegal drug use, does the core model take into account illegal drug use?

A. The core model does not take into account illegal drug use.

Q. What about risky behavior, does the model take into account whether a person is inclined to engage in risky behavior?

A. The core model does not.

Q. Now could you review for me what information the core model does take into account.

A. Yes, certainly. The core model takes into account the payer, whether it's a Blue Cross Blue Shield or the state program.

*9 Q. Okay.

A. It takes into account what disease the person has. These are the diseases that Dr. Samet identified as being caused by smoking.

Q. Okay.

A. It takes account of the person's age. It takes account of the person's gender. And what it really takes account of are those variables which in our discussion with Dr. Samet were identified as being important to take into account when estimating the smoking- attributable expenditures in a simple way so that we don't have to have a large number of variables that would make the simple model complex and defeat the purpose of the simple model.

Q. Did Dr. Samet recommend what information the core model should take into account?

A. Dr. Samet participated in the discussions in which these variables were identified as being important to stratify for, yes.

Q. In the course of participating in those discussions, did Dr. Samet make a recommendation as to what factors should be taken into account?

MR. HAMLIN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. So to summarize, the core model determines smoking- attributable costs for heart disease and lung cancer and other smoking-attributable diseases identified by Dr. Samet by taking into account gender, age, disease and payer, but not taking into account residence, place of birth, family history, prior medical history, hypertension, high blood pressure, diabetes, exercise, alcohol, diet, depression, occupation, marital status, race, education, weight, radon exposure, illicit drug use or risky behavior; is that correct?

A. The core model calculates smoking-attributable expenditures using all of the variables which have been shown in previous epidemiologic work as reported to us by Dr. Samet that are important to be taken into account when calculating smoking- attributable expenditures. All the major ones. There are others that might lead to refinements, and that's why we considered others. But while you've listed many things there, the scientific basis for those things being important when calculating -- when calculating smoking-attributable expenditures was not, in Dr. Samet's opinion -- did not merit having information about them.

Q. What did Dr. Samet have to say about whether smokers live a less -- generally a less-healthy lifestyle than non-smokers?

A. I don't recall specifically a discussion. At this point I don't recall specifically a discussion about less-healthy lifestyle. I do remember a discussion where we talked about other studies which have had more information about individuals and where that information was included when calculating risks of various diseases, for example, heart disease, many of the variables you've listed there, and -- and comparing the results from a study which included many of these variables with the results that you get when you control only for age and gender, and finding that the smoking- attributable effects were not changed by controlling for many of those additional things.

*10 MR. GARNICK: Your Honor, I move to strike the last portion of his answer as going beyond the question.

MR. HAMLIN: Objection, Your Honor, the answer was responsive. Thank you.

THE COURT: Are you saying it was not responsive?

MR. GARNICK: I'm saying that the first few words were responsive, and then he went forward and, yes, it was -- the rest of it, his answer was not responsive.

THE COURT: I believe it is sufficiently responsive. It will stand.

BY MR. GARNICK:

Q. What did Dr. Samet have to say about whether smokers exercise less than non-smokers?

A. I can't recall any specific comments about -- about exercise.

Q. What did Dr. Samet have to say about whether smokers drink more than non-smokers?

A. Again, I don't recall the specifics of the -- of the discussion. I do recall our discussing variables that would potentially -- were potentially important to the calculation of smoking-attributable expenditures and recall being referred to certain articles in the scientific literature, but don't recall the specifics about -- about that variable.

Q. What did Dr. Samet say about whether smokers tend to have less income than non-smokers?

A. I don't recall the specifics of the discussion.

Q. What did Dr. Samet say about whether smokers tend to do more risky things than non-smokers?

A. Again, my same -- same answer.

Q. Now as part of the core model, you divided the smoking- attributable diseases identified by Dr. Samet into two categories; correct?

A. Yes.

Q. One category was lung cancer/COPD; correct?

A. Correct.

Q. The other category was heart disease/stroke, plus; correct?

A. Heart disease, stroke, and then the other major smoking- attributable diseases other than lung cancer and COPD which were on the chart that I showed, yes.

Q. Now instead of dividing up diseases by category, if the core model calculated costs disease by disease, you will not necessarily get the same answer; correct?

A. I don't -- I don't know. It's not something I did.

Q. Could you --

Do you remember being deposed in this case, Dr. Zeger?

A. I --

Yes, I was deposed. Yeah.

Q. Okay. I believe you have your deposition up there. And I would ask you to turn to page 351, and I would refer you to line --

A. One second, please. 351? Sorry.

Q. Yes.

A. Yes, I have it.

Q. Do you remember being asked this question and giving this answer:

"And that would not necessarily yield the same result as it would if you had calculated those probabilities disease by disease; right?

"Answer: That's correct."

MR. HAMLIN: Objection, Your Honor, that's an improper use of the deposition. That is not inconsistent.

THE COURT: It is improper use of the deposition.

Q. Dr. Zeger, if you had grouped the diseases differently, you would not necessarily get the same answer; correct?

MR. HAMLIN: Objection, asked and answered.

THE COURT: You may answer that.

A. All I did in the core model, working with the collaborative group, was group the diseases the way I grouped them, and I -- I can't tell you what would have happened if I had done it differently. I did not do it differently.

*11 Q. And if you had included different diseases, you may not have included the same answer; correct -- you may not have concluded -- you might -- you may not have reached the same answer; right?

A. I'm sorry, could you repeat the question?

Q. Certainly.

If you had included different diseases in the core model, you may not have reached the same answer; correct?

A. Well the answer I reached in the core model was the smoking-attributable expenditures for the state and Blue Cross Blue Shield paying for citizens of Minnesota who had a specific list of diseases, the 12 diseases which we put up on the board, so that's what we did. I don't know, you know -- I mean I don't know what diseases, other diseases you're talking about. These are the diseases Dr. Samet had identified as being caused by smoking, that's why we used those diseases.

Q. If you had included other diseases, you would not necessarily have reached the same answer; correct?

MR. HAMLIN: Objection, Your Honor, asked and answered.

THE COURT: It's been asked and answered.

BY MR. GARNICK:

Q. Dr. Zeger, do you remember your testimony about strata and the need to reach -- with the coin flipping, that it's better to take all the coin flips together at the same time and not pick out individual strata?

A. Well I was -- I was illustrating with the coin toss the law of averages, which says that as you average across more things, you get increasing -- increasingly reliable values. Yes.

Q. If I wanted to know the percentage of dollars attributable to smoking for women 65 and over, I would look at the women-65-and-over strata; correct?

A. I'm sorry, could you ask the question again?

Q. If I wanted to know the percentage of dollars attributable to women over 65 paid by Blue Cross Blue Shield, I would look at the strata women 65 and older; correct?

A. That's one place to look, yes.

Q. I wouldn't look at the aggregation of all these strata; would I?

A. It depends what you're trying to do.

Q. Well if I looked at all -- at -- at the aggregation of all this strata, I would not be comparing like to like; would I?

A. It depends what you're trying to do.

Q. Well if I was interested in finding out the percentage of dollars attributable to women 65 and over paid by Blue Cross Blue Shield.

A. That's the only purpose? You don't want to also estimate the total?

Q. No, I just -- I'm just interested in the category of women 65 and older.

A. One -- one thing you could do would be to look at the estimate provided here. That's one approach.

Q. And I wouldn't want to aggregate all the percentages of dollars attributable across the strata; would I? I wouldn't want to aggregate all of these numbers for all the different strata; right?

A. Are you --

Q. If I was interested in women 65 and over, I would look at women 65 and over; correct?

A. Not necessarily. Some -- that's one way to do it. There - - there are other ways. In fact in my paper that Mr. Hamlin asked me about, the paper where I was trying to estimate the rate of growth of the AIDS epidemic in various groups, that paper laid out a method that when you're interested in a particular subgroup, you certainly would use information from that subgroup, and in this case women 65 and older, but you can also -- if -- if you're designing a method just to estimate what's going on in subgroups, you can also use information from other subgroups to get a more reliable estimate. This is called -- this is called empirical Bayes estimation, which is something we commonly do when we are interested in subgroups.

*12 This is not what we did here because what we were interested in here were the total smoking-attributable costs for CHD/stroke -- and this if for -- I can't see which, if it's Blue Cross Blue Shield or -

Q. It's Blue Cross Blue Shield, doctor.

A. Yes. So here we were interested in the total expenditures of Blue Cross Blue Shield for CHD/stroke, not in a particular estimate for a particular subgroup. We did use the estimate for the particular subgroup, as I illustrated in the coin tossing, to sum them up and get the overall estimate, but we didn't design the method to give estimates -- specific estimates for the subgroups. And there are ways to do that that were different than the way that --

Q. Certainly --

A. -- we used.

Q. Sorry.

Certainly, if I want to compare like to like and I was interested in women over 65, their percentage of dollars attributable to smoking, one way to do it would be to look at that strata; correct?

MR. HAMLIN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. Doctor, I believe that we agreed that the purpose of the refined model is to determine all or approximately all smoking- attributable costs paid for by the state and Blue Cross Blue Shield; correct?

A. The purpose of the model was to estimate the smoking- attributable expenditures for Blue Cross and for the state for the period 1978 to 1996.

Q. All of them, or approximately all of them; correct?

A. Their --

Approximately all of them.

Q. Okay. Now are you aware that if we ran the core model with all medical expenditures paid by Blue Cross Blue Shield during that time frame, smokers don't cost more than non-smokers?

A. It's a hypothetical that I'm not -- I'm not aware of.

Q. You haven't done it; is that correct?

A. Haven't done what?

Q. You haven't run the core model on all medical expenditures incurred by Blue Cross Blue Shield and the state during the relevant time period to see if smokers cost more than non-smokers for overall costs.

THE COURT: Counsel, counsel, please return to the podium.

Okay. Thank you.

A. I'm sorry, could you repeat the question?

MR. GARNICK: Could you repeat the question.

(Record read by the court reporter.)

A. We -- we ran the core model with all of the expenditures for Minnesotans, the more than 90,000 Minnesotans that had lung cancer, COPD, and the other major smoking-attributable diseases, all of their expenditures.

Q. Okay. I don't want to limit it to the smoking- attributable diseases identified by Dr. Samet, so my question is a little different. My question is rather -- is whether you ran the core model on all medical expenditures incurred by and paid by Blue Cross Blue Shield and the state from 19 -- whatever the dates were, 1977 --

A. 1978 to 1996.

Q. -- 1978 to 1996. Have you done that?

A. That would be a silly thing to do, since the core model wasn't built to do that.

Q. But you haven't done it; right?

*13 A. I've not done it.

Q. And the core model does not address whether in the Medicaid population smokers cost more than non-smokers, stratifying by age and gender, for all medical costs; does it?

MR. HAMLIN: Objection, Your Honor. Could we have a side-bar on this one?

THE COURT: Do you want to read back the question, then.

(Record read by the court reporter.)

THE COURT: You may answer that question.

A. The core model looks at the smoking-attributable expenditures using whether -- the most important piece of information that we had available to us in Minnesota; that is, what diseases people had, did they have lung cancer, COPD, or did they have the other diseases, and it would be absolutely inappropriate to use the model without that disease information because the various reduction terms that we calculate depend critically on that information, and it's -- and to -- to ignore the fact that there were 90,000 Minnesotans with these major smoking diseases, to not use that information, to set it aside, would make the application of the core model inappropriate. And I would not use the model without using that information. It would be -- it would be incorrect to do so, simply incorrect.

Q. So your testimony is that it would be incorrect and you didn't use the model, but in fact you didn't use the model in that respect; right?

MR. HAMLIN: Objection, mischaracterizes his answer.

THE COURT: Rephrase that question, counsel.

BY MR. GARNICK:

Q. So, Dr. Zeger, you did not determine whether in the Medicaid population smokers or non-smokers, stratifying by age and gender, have a greater overall medical cost; did you?

MR. HAMLIN: Objection, asked and answered.

THE COURT: Sustained.

Q. Doctor, isn't it true that in the NMES population, smokers 19 and older -- no, strike that.

Isn't it true that in the NMES population, if you take all the people 19 and over, smokers on average will be older than non- smokers?

A. I'm sorry, could you repeat it?

Q. Isn't it true that if you take everyone in the NMES sample 19 and over, and you look at smokers and you look at non- smokers, on average smokers will be older than non-smokers?

A. I don't know.

Q. You didn't look?

A. I don't have it in front of me. I don't know.

Q. You didn't look at smokers and non-smokers within the Medicaid population to see if they're different in ways other -- for reasons other than -- strike that.

You didn't look at smokers and non-smokers in the Medicaid population to see if they're different in ways other than their smoking; did you?

A. I used the NMES population in the core model to estimate two reduction probabilities, and -- and I did that separately for age and gender and disease- type strata and also strata by payer, but that's -- that's the only way in which I differentiated the NMES population.

Let -- let me just repeat the four, because I -- it's age, gender, payer, which would be Medicaid versus private, and -- and disease, whether they have -- which of the two classifications of major smoking-attributable diseases that they had.

*14 Q. Well isn't it true in the Medicaid population that non- smokers contract more cancer than smokers?

A. I don't know what --

You have to be more specific in your question.

Q. Let me ask it a different way. Isn't it true that in the Medicaid population, in the Medicaid subpopulation of the NMES sample, controlling for age and gender, non-smokers contract more cancer than smokers?

A. I don't have the specific numbers in front of me. I can't speculate one way or the other.

Q. Isn't it true that within the Medicaid subpopulation of the NMES sample, controlling for age and gender, non-smokers contract more circulatory system problems than non-smokers -- than smokers?

MR. HAMLIN: Objection, Your Honor, at this point counsel is testifying. If he's got a document that he is relying on that he wishes to show Dr. Zeger, then I think that ought to be shown to Dr. Zeger. Right now counsel is just going through a litany of alleged facts.

THE COURT: Do you have something that you can show the witness?

MR. GARNICK: I'm just seeing what the witness knows, Your Honor.

THE COURT: No, that wasn't the question. Do you have something --

MR. GARNICK: I -- I have nothing on hand to show the witness.

THE COURT: Okay. The objection is sustained.

BY MR. GARNICK:

Q. Now doctor, you said that the conceptual structure of the model was that it goes from smoking to disease and then disease to costs; correct?

A. Correct.

Q. Now isn't it true that there's scientific literature that recognizes that even if smoking causes disease, that does not mean necessarily that smoking results in increased health costs even controlling for age and gender?

MR. HAMLIN: Objection, Your Honor. Again, counsel's testifying. Objection.

THE COURT: Do you have something you can show the witness, counsel?

MR. GARNICK: I have something to show the witness.

THE COURT: Why don't you do that.

MR. GARNICK: All right.

BY MR. GARNICK:

Q. Please turn to tab 18, which would be in your notebook.

MR. HAMLIN: Your Honor, could we have an exhibit number on that?

MR. GARNICK: Yes, I'm sorry. It's PX16747.

A. Would you repeat the exhibit number, sir? I'm sorry.

Q. Exhibit number is PX16747. I gave you a tab -- a notebook, and it would be tab 18.

A. Okay. Found it.

Q. Okay. This is an article that was published in the American Journal of Epidemiology; correct?

A. Yes.

Q. And that is a peer-reviewed, respectable journal?

A. Yes.

Q. It's a reliable authority; correct?

A. The journal is reliable, ye

Q. Okay. And this is an article by Thomas Voigt and Stewert Schweitzer; correct?

A. Those are the authors listed here, yes.

Q. And this article presumably has been -- this article presumably had been peer reviewed; correct?

A. I have no specific knowledge of that. Typically the American Journal of Epidemiology has its articles peer reviewed.

MR. GARNICK: I offer it --

It was actually already offered into evidence as a learned treatise with Dr. Samet. I offer it into evidence for the same purpose with Dr. Zeger.

*15 MR. HAMLIN: Your Honor, this witness has not testified to the reliability of this article, and so he's not laid the proper foundation.

THE COURT: Well if it's in, it's in.

All right. Do you dispute that it's been received?

MR. HAMLIN: Only for the purposes of examining Dr. Samet, but he's not laid any foundation with -- with Dr. Zeger for the use of this article.

THE COURT: Doesn't need to lay foundation to introduce the exhibit. He may need to lay a foundation before he asks questions, but the exhibit is in.

BY MR. GARNICK:

Q. Dr. Zeger, are you familiar with this article?

A. No, I'm not.

THE COURT: Counsel, we'll have to take a short recess at this time.

THE CLERK: Court stands in recess.

(Recess taken.)

THE CLERK: All rise. Court is again in session.

(Jury enters the courtroom.)

THE CLERK: Please be seated.

BY MR. GARNICK:

Q. Dr. Zeger, I want to return for a moment to the core model. Now looking at exercise and depression, did Dr. Samet tell you that these two factors were unimportant?

A. I don't recall the specific discussion about those two variables. I can't remember exactly what we said. I know we had a number of discussions about other variables that we might control for, and I don't remember specifically about exercise and depression.

Q. Isn't it true that even the refined model does not take into account either exercise or depression?

A. That is correct.

Q. Isn't it true that one -- when a person does take exercise and depression into account in the refined model, the costs for CHD drops over 40 percent?

MR. HAMLIN: Objection, Your Honor, counsel is testifying.

THE COURT: Sustained.

MR. GARNICK: Your Honor --

BY MR. GARNICK:

Q. Have you reviewed the expert reports of defense experts on the statistical models?

A. I have --

I wouldn't say I've reviewed them, no.

Q. Have you glanced at them?

A. I've -- I've read through them quickly. I've not made a careful review of them.

Q. Did you see that Dr. Wecker, one of defendants' experts, found that when exercise and depression was taken into account in the refined model, the costs for CHD went down over 40 percent?

MR. HAMLIN: Objection, Your Honor, counsel is testifying. He's referring to a document that's not in evidence, and so this is an objection to form.

MR. GARNICK: A foundation will be laid by defense experts.

THE COURT: Well, yeah, but that leaves him at a distinct disadvantage. I think you maybe either wait or else give him the document, one of the two.

BY MR. GARNICK:

Q. Let's go back to the Voigt and Schweitzer article, Plaintiffs' Exhibit 16747, and let me direct your attention, Dr. Zeger, to page 1066.

MR. HAMLIN: Your Honor, may we have a side-bar on this?

BY MR. GARNICK:

Q. Drs. Voigt and Schweitzer write "Cigarettes lead to increased morbidity. Some 30,000 to 40,000 research articles attest to this fact. The degree to which this excess morbidity is translated into excess utilization is another issue."

*16 Now in this passage, Drs. Voigt and Schweitzer are in essence saying that just because smoking causes disease does not necessarily mean that smoking results in excess utilization of health-care services; correct?

MR. HAMLIN: Objection, counsel is mischaracterizing the document and testifying. Objection to form.

THE COURT: You may answer that.

A. You know, I don't know exactly what these authors are intending to mean. I've not read this article, and it's dangerous to interpret a discussion section of an article that --

The discussion section is meant to put in context the research results, and I've not read the article nor -- nor do I understand what the research results are carefully, so I don't know exactly what they're -- you know, what -- what they're trying to say here. I can't interpret for you what they mean.

Q. Dr. Zeger, this is one of the articles that defendants designated for purposes of your testimony; correct?

A. I've not seen this article until this moment.

Q. So you don't know one way or another whether this was designated by defendants for purposes of your testimony?

A. I don't.

Q. They go on they say -- they state, "The well-known behavioral and personality differences between smokers and non- smokers argue strongly that simple extrapolations of morbidity ratios onto utilization of medical services are suspect as best." What is a morbidity ratio?

A. I'm sorry, could you -- could you show me where this is in the --

Q. It's on the same page, towards the end of that paragraph.

A. Again I've not read the paper. I don't know exactly what they mean by a morbidity ratio, so I --

I could speculate what -- what they mean, but I've not gone through the methods section, so I can't tell you exactly what they mean.

Q. Well these authors, at least, believe that there are well-known behavioral and personality differences between smokers and non-smokers; correct?

MR. HAMLIN: Objection to foundation, and again counsel is testifying and mischaracterizing the document.

THE COURT: Sustained.

Q. Doctor, did your core model take into account any well- known behavioral and personality differences between smokers and non-smokers?

A. The core model does not take account of the personalities of the persons in Minnesota who have the major smoking-attributable diseases.

Q. The authors go on to say, "Two major cautions must be made in interpreting these data. First, the fact that the number of cigarettes smoked per day was not related to utilization measures serves to leave open the debate on the degree to which the excess utilization observed among smokers is the result of their smoking."

Dr. Zeger, in your discussions with your colleagues, did you discuss the debate on the degree to which the excess utilization observed among smokers is the result of their smoking?

A. Yes.

Q. And you would agree that there is a debate on that subject; right?

A. I have -- I have no expert opinion about the nature of the debate about this issue. As I said, you know, we -- I've relied upon Dr. Samet's testimony for the epidemiology. This -- if it's a debate, it's either in the psychology or the epidemiology literature, not something that I'm familiar with and -- and not expert in.

*17 Q. Doctor, if we imagine a time line, and if we imagine a group of smokers who began smoking in 1928, quit smoking in 1950, and contracted lung cancer in 1978, does it matter to your model that these smokers ended their smoking history in 1950?

A. The -- the model estimates the proportion -- excuse me, the percentage of lung cancer patients who are smokers, and the -- as I said in my testimony, the definition of smoking is whether they had smoked a hundred cigarettes or more in their lifetime.

Q. So it doesn't matter if they stopped smoking before 1950; correct?

MR. HAMLIN: Objection, asked and answered.

THE COURT: It's asked and answered.

Q. It doesn't matter to the model when someone starts smoking; correct?

MR. HAMLIN: Same objection, Your Honor.

THE COURT: You may answer that.

A. The definition of smoker in the core model is have you ever smoked 100 cigarettes or not, and the -- the definition of smoking does not depend upon the date that you smoked them.

Q. And the core model doesn't matter -- doesn't care --

It doesn't matter to the core model why someone might have started smoking; correct?

MR. HAMLIN: Objection, Your Honor. I believe that -- well, if we could have a side-bar on this one. I prefer not to discuss this without -- without a side- bar.

THE COURT: Do we really need a side-bar on the question? It's a pretty simple question.

MR. HAMLIN: All right.

THE COURT: You can answer the question.

A. The model distinguishes smokers from non-smokers. A smoker is a person who smoked more than a hundred cigarettes. It does not -- there's no information, it does not have information about why somebody was a smoker.

Q. And the model also doesn't care why someone stops smoking; correct?

A. Same answer.

Q. One of the claims in this case is that the cigarette companies violated a special duty with respect to smoking and health. Does your model tell us how much extra money, if any, that the state spent because of any alleged violation of that duty?

MR. HAMLIN: Objection, Your Honor, now -- now I would like a side bar because it deals specifically with the court's ruling in this case.

THE COURT: Members of the jury, I suppose when you sit there, you wonder once in a while what we're talking about, and you should understand that there are two phases to any type of trial, one phase involves the decisions to be made by the jury with regard to what the facts are, the other part of the trial involves legal questions, and that's my role or my job. So what we usually talk about at side bar is -- and what side bar is, that's when I go over to the other end -- are legal questions. We're not trying to hide anything from you, but we're trying to decide specific legal questions with regard to the case. And so I think you should just be aware of what we're doing when we head over in that direction. I just want to call it to your attention.

Counsel, go ahead.

MR. GARNICK: Your Honor, I have no further questions.

*18 THE COURT: All right.

MR. HAMLIN: Your Honor, we have no questions of this witness.

THE COURT: You may step down.

(Witness excused.)

THE COURT: Are we finished with the witnesses today?

MR. CIRESI: We are, Your Honor. We anticipated that Dr. Zeger may go long -- may have gone longer. The next segment was to put in some documents for document review by the jury. We are prepared to do that. But I think we ought to set up and talk to the court about how we're going to do that because of my understanding of your order as to where the jury will be sitting to review them.

THE COURT: Okay. Well let's take a short recess.

Just so you have some idea of what's going to happen, and particularly for those people that -- in addition to the jury, they may be interested to know that at this point in time we're going to cease testimony of witnesses and introduce documents or exhibits to the jury. This process will involve closing down the cameras and also closing the courtroom, and the reason for that is this will allow the jury to view the documents that are going to be introduced and give them a little more freedom to move around in the courtroom. It's not that we're trying to hide any documents because what documents will be introduced will be available to anybody that wants a copy of it.

We will discuss maybe in further deal the process, but from now until --

How long -- do we have any idea how long it will take tomorrow?

MR. CIRESI: We anticipate that will take all day tomorrow, Your Honor.

THE COURT: All right. So this document review will take place the balance of today and it's anticipated all day tomorrow, and then Thursday morning at 9:30 we'll reconvene the testimony. At least that's the plan until now. So we'll take a short recess, and then if counsel would like to come into chambers, we'll figure out what we're doing here.

THE CLERK: Court stands in recess.

(Recess taken.)
 

(The following proceedings were held in open court without the jury present.)

THE CLERK: All rise. Court is again in session.

Please be seated.

MR. O'FALLON: Your Honor, may it please the court. Your Honor, my name is Dan O'Fallon. I'm here on behalf of the plaintiffs.

What we would propose to do at this point, Your Honor, is we have basically two groups of documents here. The first grouping of documents are the documents of plaintiffs that have already been admitted into evidence. What we have up in front of the podium here are three copies of those documents.

In your order I noted that you asked for a courtesy copy. We didn't anticipate that. But what we propose to do is to give you a courtesy copy of those documents and any documents that are admitted today tomorrow morning, if that would be acceptable.

THE COURT: That's fine.

MR. O'FALLON: What I would propose as perhaps the procedure for handling the admitted documents is that counsel for plaintiffs and defendants, after we go through these other ones that we're going to be moving for the first time, simply sit down and confirm based on their lists and our lists that these are in fact the admitted documents and we in fact do have three copies in each of the folders so we can make those documents available to the jury to review. And again, those are the documents that have already been moved into evidence and accepted.

*19 THE COURT: All right. Is that agreeable with defense counsel?

MR. BERNICK: Your Honor, assuming that these documents are part of the document review process, I don't have a problem with that. But I'd like to address the issue of whether the currently admitted documents; that is, those that have already been admitted, ought to be the subject of review tomorrow, and I'd like to address that at some point in time.

THE COURT: All right.

MR. BERNICK: As to the procedure that's just been proposed, I don't have a quarrel with that.

THE COURT: So in any case, I certainly don't want any document going to the jury that hasn't been reviewed by both parties to make sure that they are in fact admitted. All right.

MR. O'FALLON: And we agree on that. But we've done our best, but we're human, and there were a lot of documents.

With that, I would like to now turn to the documents that we would ask to admit into evidence today. And Your Honor, the procedure I'd like to follow is that we've divided the documents -- we've sent a list to the defendants, this was sent a couple weeks ago now, or maybe a week ago, of the documents. We then revised that down to a more concise set. What we have done is divided the documents into basically four topic sets, and within those topic sets the documents are arranged in trial exhibit order. And what I'd like to do is simply start into the first topic set, and if it would please the court, what I'll do is state the trial exhibit number of the document -- if the court would prefer, I can give more information about the document -- and then move its admission. Would that be acceptable?

THE COURT: Go ahead, counsel.

MR. O'FALLON: Okay. The first documents are a group that we call addiction, and the first document within that group is Trial Exhibit 3960. This is a document dated June 28th, 1963.

MR. BERNICK: There's no objection to that, Your Honor.

THE COURT: All right.

MR. O'FALLON: The second document is Trial Exhibit 3962, Your Honor. This is a document dated July 3rd of 1963.

MR. BERNICK: Yes, there's no objection to that.

THE COURT: It will be received.

MR. O'FALLON: The second document, Your Honor, is Trial Exhibit 3977. This is a document dated July 17th, 1963 concerning a Project HIPPO.

MR. BERNICK: This document, Your Honor, is a privileged document. It's under submission to the court. It's part of the Merrill Williams set. So we would object to this document being shown to the jury tomorrow.

MR. O'FALLON: Your Honor, we would claim that this document is in fact a scientific document concerning a specific project run by Battelle, HIPPO I and II, and run by the B&W defendants, B.A.T and their people.

THE COURT: Is that under advisement by the court?

MR. O'FALLON: I don't know. This may be -- this may be a document they claimed privilege on.

THE COURT: Then that will not be allowed.

MR. O'FALLON: Okay. The next document is Trial Exhibit 10155. This is a document dated 11 third -- or November 3rd of 1977. This is a document that Lorillard originally lodged an objection to but then withdrew their foundation objection by letter dated February 12th of 1998.

*20 MR. BERNICK: Your Honor, I don't believe there's anyone from Lorillard here, and that's because I'm informed that at least the documents as to Lorillard that are scheduled to come up for review tomorrow, they do not have objections to.

THE COURT: All right. That will be received.

MR. O'FALLON: The next document is Trial Exhibit 10156. This is a document dated November 9th of 1976. This is a Lorillard document.

THE COURT: That will be received.

MR. O'FALLON: The next document is Trial Exhibit 10517. This is a document dated August 26th of 1959.

MR. BERNICK: Does Philip Morris --

This is a Philip Morris document.

MR. DIESETH: No objection.

MR. BERNICK: No objection to that, Your Honor.

THE COURT: It will be received.

MR. O'FALLON: Next document is Trial Exhibit 10575. This is a British- American Tobacco document dated December 21st of 1959.

MR. BERNICK: Yes, Your Honor. We don't have a particular objection to that document, but I'll note at this point in time, and I didn't really have the opportunity to address this at the outset, that at least with regard to BATCo and B&W, I assume the same may be true with regard to other defendants, we object to the volume of documents that's now being offered on these particular subjects. These subjects were gone over in detail on direct examination and on cross-examination of at least two different witnesses, and I think that it's cumulative. At a certain point this volume of documents put in the jury's lap is really designed to accomplish only one thing, which is to give them an overall volume and say, see here, here's this tremendous volume of other documents that support our case.

I think it's unrealistic, when we get down to the real world of these people reviewing documents, that they're ever going to keep these documents separate, really distinguish their facts. I think it's also unrealistic to believe that as a practical matter we can offer testimony with regard to each and every one of these documents in response and still get done with this trial in a viable period of time.

And I notice that in connection with offering up these exhibits, there is no tender that suggests to the court that there is some unique fact which is now coming out in these documents in these given subject matters that would warrant placing this additional burden on the parties and on the jury.

So we have an overall objection on the grounds that these documents are cumulative, at least the collection of documents coming before the jury. I would like to make that objection as a general proposition, Your Honor, to the substance of what's being offered here and not have to reiterate it with regard to individual documents.

THE COURT: Do you want to address that question, counsel?

MR. O'FALLON: Yes. I think there's two points to be made. First of all, we're dealing with a case that started basically in the 1950s and continued on to 1994 when we filed our complaint. The fact of the matter is is that what we have here, given this number of documents, is but a pittance of what we've had produced to us in this litigation, some 33 million documents. We have faced the allegation, I know I faced it in individual depositions, and the implication when we ask witnesses questions that we are hiding things, that we have cherry picked the documents, that we haven't given a full breadth of what is actually being done. The fact of the matter is, Your Honor, all of these documents are relevant to these defendants' conduct over the 40 years that are involved in this case, and what they set up is the ongoing duplicity that has occurred over those periods of time.

*21 So I would actually suggest that the amount of documents that we're introducing here today is not a great deal of documents when you compare it to the amount of documents that have been produced and the amount of documents that have frankly been reviewed, and their relevance to this case by defendants' own admission through reviewing them.

THE COURT: The issue is not relevancy, the issue is redundancy.

MR. O'FALLON: I think the important thing to establish, though, is over a period of time these defendants, for instance on issues of addiction, have made public statements when their private internal documents indicate that they believed otherwise, that indicate that they actually held different views than those they have been making since 1954 and have not retracted to this day.

THE COURT: Well I'll allow the document, but would advise counsel that it doesn't make a lot of sense to the court to belabor some issues so that in effect we'll just have accumulating redundant documents. I don't think that helps your case, I don't think it helps anybody's case, doesn't help the jury, and it certainly doesn't help the court. So with that proviso in mind, I would hope that the documents that are being introduced are both relevant and not unnecessarily redundant.

MR. BERNICK: Your Honor, can I have an overall objection on those grounds until such time as that particular showing is made?

THE COURT: Yes.

MR. BERNICK: Thank you.

THE COURT: Go ahead, counsel.

MR. O'FALLON: I forget where we're at.

MR. BERNICK: 10575.

MR. O'FALLON: 10575.

THE COURT: 10575 has been received.

MR. O'FALLON: 10576 is actually a document that I think was attached to 10575, which is a report dated December 18th, 1959.

MR. BERNICK: There's no objection to that, Your Honor.

THE COURT: That will be received.

MR. O'FALLON: Next exhibit is 10921. This is a document dated January 23rd of 1984. This is a B.A.T document.

MR. BERNICK: No objection.

THE COURT: It will be received.

MR. O'FALLON: The next document is Trial Exhibit 10995. This is a document dated November 25th of 1977. This is another British- American Tobacco document.

MR. BERNICK: No objection, Your Honor.

THE COURT: It will be received.

MR. O'FALLON: The next document is Trial Exhibit 10996. This is a document dated January 13th of 1976. This is also British- American Tobacco document.

MR. BERNICK: No objection.

THE COURT: It will be received.

MR. O'FALLON: Plaintiffs' Exhibit 10997 is a July 22nd, 1975 document from B.A.T.

MR. BERNICK: Yeah. Again we have no objection, subject to the prior generalized objection. This again is a pretty good example. This is another paper on addiction. There are all kinds of papers on addiction. The question is what does this incrementally accomplish in establishing evidence to the jury.

THE COURT: Okay. That will be received.

MR. O'FALLON: The next document is Trial Exhibit 10998. This is a document dated July 17th of 1975.

*22 MR. BERNICK: Again, no objection, Your Honor.

THE COURT: It will be received.

MR. O'FALLON: The next document is 10999. This is a July 14th, 1975 document. This is a British-American Tobacco Company document.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: The next document is 11094. This is an April 23rd, 1979 document. This is again a British-American Tobacco document.

MR. BERNICK: No objection.

THE COURT: It will be received.

MR. O'FALLON: The next document is 11098. This is a document dated March 22nd of 1984. This is another British-American Tobacco document.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: The next document is Trial Exhibit 1112. I don't know if I got enough ones in there. It's --

THE COURT: I think you need one more one.

MR. O'FALLON: I think so. 11112.

THE COURT: All right.

MR. O'FALLON: This is a document -- this is a May of 1963 document.

MR. BERNICK: I have no objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 11113. This is a January 1962 document.

MR. BERNICK: No objection.

THE COURT: It will be received.

MR. O'FALLON: Next document is Trial Exhibit 11116. This is a May 29th, 1963 document, British-American Tobacco.

MR. BERNICK: Your Honor, we do have an objection to at least a portion of this. This is a document that I think was probably created at the TRC. The TRC was an organization kind of parallel to CTR that was funded in Britain to do -- to do tobacco-related research. It appears to be a typed-up version of a note from Sir Charles Ellis, although it's completely unsigned. The part of it that we object to --

We won't contest the admissibility of the note itself, but there are some handwritten notes that are kind of inflammatory handwritten notes that appear at the end, and there's no foundation for who wrote these, what they relate to, whether they really had anything to do with us. It says, "This is going to backfire." "This is a double double cross." It's not even clear that the handwriting is the same. And we would object to the admission of this document with the marginalia on the grounds that there's no foundation for it. And there's a 403 problem, there's potentially hearsay within hearsay. I don't know what remarks these reflect and by whom.

So we would object to the admission of the document with this hand -- handwritten comment at the end. We would not object to the balance of the document.

THE COURT: You don't think Sir Charles was doodling, huh?

MR. BERNICK: I don't know whose doodling it was. I would imagine it's not Sir Charles because Sir Charles is the guy who's making the proposal.

THE COURT: Okay. What do we have?

MR. O'FALLON: Your Honor, what we --

This is a document that was produced to us out of the B.A.T files. It is a letter by Sir Charles Ellis, apparently to Mr. Todd at the TRC. I think you've already had the opportunity to visit the TRC issues, but the fact of the matter is is that this is an admission by Mr. Ellis and this is a document that's been under B.A.T's control. This is clearly somebody from B.A.T's handwriting. This is a letter that apparently --

*23 THE COURT: You can represent to the court that this was received in exactly this manner when the document was produced; is that correct?

MR. O'FALLON: Yeah. I mean as far as I know, we certainly didn't make that doodling on it. I was one --

THE COURT: Wait a minute. Wait a minute. As far as you know. You're going to have to make a little stronger representation than that to me.

MR. O'FALLON: Your Honor, based upon the way these documents were produced in England, we were given the documents for review and we copied them exactly as they appear. There has been no one that has made this doodling on this document.

As counsel understands it, this is a document as it appears in B.A.T's files?

MR. BERNICK: We're not saying, Your Honor, that these notes were placed on the document at some point subsequent to its production, what we're saying is that there are many things that would be in BATCo's files that were not created by BATCo, that wouldn't be admissible under the Rules of Evidence because there's not a proper foundation or otherwise it's not in compliance with the rules. And no foundation has been created, and certainly no showing of relevance has been made based upon facts as to which there's a foundation that would warrant the admission of these marginalia.

We are not contesting that this is the form in which the document was produced.

THE COURT: This was in your files as a part of your normal file-keeping. And would you call this an admission?

MR. BERNICK: No. That's really what I'd like to address. I believe, because BATCo is a party, if BATCo created a document, it does not have to be a business record for it to come in because it would be non-hearsay to begin with, it would be a statement of a party. With regard to this portion of the document, though, we don't even know that it's a statement of a party. These are simply marginalia that got placed on the document at some point in time.

It's clearly not a routine business record. The drafting process itself may have been routine, but the marginalia, there's no foundation to establish that people tend to put marginalia on in the ordinary course of business. In this case we don't even know who wrote the marginalia. And on that point, I don't think Your Honor could find, based upon the record as it exists today, that the marginalia are in fact statements of the party. All we know is the document came from our file.

Now with regard to the text of the document, Sir Charles wrote that, and he was a consultant to BATCo, and we would acknowledge that those are -- that's material that can come before the jury, but we simply don't know who wrote the marginalia. No one knows who wrote the marginalia.

MR. O'FALLON: Your Honor, if I could shed some light on that last point. Based on the information that was provided, that was provided in both hard-copy form and electronic format, I believe B.A.T has said that the handwritten portion of the document was written by G. F. Todd of TRC. If so, I think it comes in just like all the other TRC documents, because TRC was basically an agent of the industry, certainly an agent of the British industry.

*24 Is that the information you have?

MR. BERNICK: No.

MR. O'FALLON: That's what I have on this one.

THE COURT: That's not your information?

MR. BERNICK: No. I don't believe that that is --

I do not know who the author of these notes is. I'm not sure what's being read. It could equally well be something that was entered into the information based on who the recipient of the document is.

THE COURT: What's your source of information, counsel?

MR. O'FALLON: What it is is the electronic foundation information that we were required to get when a party objected. I can get you tomorrow a hard copy of that.

THE COURT: Maybe you better do that. Let's wait until tomorrow, and you get me that information.

MR. O'FALLON: Sure.

THE COURT: All right. Let's move on.

MR. O'FALLON: Trial Exhibit 11126. This is a document dated February 18th of 1977.

MR. BERNICK: Yes. Subject to the prior remarks I made, no objection to 11126.

THE COURT: It will be received.

MR. O'FALLON: Excuse me, Your Honor, if I could just take a second to make sure I have a note on that last document.

Next document is Trial Exhibit 11130.

MR. BERNICK: No objection to that. Again, Dr. Oldman is a psychologist. He wrote on many of the same subjects as Dr. Creighton, Dr. Cullmer and a whole bunch of other people. We believe it's cumulative. There's no particular objection with regard to that document.

THE COURT: We'll receive that.

MR. O'FALLON: Trial Exhibit 11332. This is a November 8th, 1967 document.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Trial Exhibit 11385. This is an April 9th, 1976 document, another B.A.T document.

MR. BERNICK: I'm sorry, 113 --

MR. O'FALLON: 11385.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is 11388.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 11409.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 11413.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 11431.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 11650.

MR. BERNICK: That is a PM document.

MR. O'FALLON: This is a PM document.

MR. BERNICK: I don't believe there's any objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 11792. This is a Liggett document, I believe.

MR. KELLY: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is 11878.

MR. BERNICK: That's a PM document. I don't believe there's an objection to that.

THE COURT: It will be received.

MR. O'FALLON: Next document is 11939.

MR. BERNICK: No objection.

THE COURT: That will be received.

*25 MR. O'FALLON: The next document is Trial Exhibit 12231.

MR. BERNICK: 12231?

MR. O'FALLON: That is correct.

MR. BERNICK: 12231 is a Reynolds document. I don't believe there's an objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is 12434, this is a B&W document.

MR. BERNICK: 12434. No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12476. This is a Reynolds document.

MR. BERNICK: I don't believe there's --

MS. WALKER: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12499. This is another Reynolds' document.

MR. BERNICK: 499? No objection to that one.

MR. O'FALLON: 12499.

MR. BERNICK: 12499.

MR. O'FALLON: Okay?

THE COURT: Is that all right?

MR. BERNICK: Yes, Your Honor.

THE COURT: Okay. That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12523.

MR. BERNICK: There's no objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12661.

MR. BERNICK: No objection to that one. It's a Reynolds document.

THE COURT: That will be received.

MR. O'FALLON: Next document is 12663.

MR. BERNICK: No objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12675.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12743.

MR. BERNICK: No objection to that either. It's a Reynolds document.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 12944, another RJR.

MR. BERNICK: No objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 13433.

MR. BERNICK: No objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 13435.

MR. BERNICK: There's no objection to that one.

THE COURT: That will be received.

MR. O'FALLON: Next one is Trial Exhibit 13458.

MR. BERNICK: There is an objection to that one, Your Honor. This is a report that was prepared by a marketing research organization called Kwechanski, and it was prepared for the Imperial Tobacco Company, which is a Canadian tobacco company. Now in the structure of things, part of the stock of Imperial is owned by -- I'm not sure of what entity at this point in time, but it's been -- maybe -- is it --

THE COURT: Does anyone want to lay claim to --

MR. CORRIGAN: I'll lay claim to this extent, Your Honor.

THE COURT: All right.

MR. CORRIGAN: Part of the stock of Imperial Tobacco is held indirectly by B.A.T Industries through another Canadian company in which it owns stock called IMASCO. In fact B.A.T Industries owns slightly less than 50 percent of the stock of Imperial.

THE COURT: Who owns controlling interest?

MR. CORRIGAN: Pardon me, Your Honor?

THE COURT: Who owns controlling interest?

*26 MR. CORRIGAN: A company called IMASCO.

THE COURT: And what's B.A.T's interest in IMASCO?

MR. CORRIGAN: Slightly less than 50 percent.

THE COURT: But my question was who owns controlling interest.

MR. CORRIGAN: I don't believe there is any stockholder that owns more than 50 percent, but I also don't believe there's any stockholder that owns more than B.A.T Industries.

THE COURT: I didn't ask about 50 percent, counsel, I asked about controlling interest.

MR. CORRIGAN: Well I don't -- Iÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿÿ can't tell you who owns controlling interest if it owns less than 50 percent, Your Honor.

MR. BERNICK: Okay. Your Honor, maybe if I can --

I believe that in this area, as has been explained to me, there is not only an issue of whatever control can take place through corporate agreement, but under Canadian law there are also restrictions on the ability of any shareholder to exercise control over the affairs of a Canadian corporation. The objection that I'm going to make, Your Honor, to this document, though I don't believe it's going to turn on the niceties of Canadian law and the ownership relationship --

THE COURT: I'm relieved to hear that.

MR. BERNICK: -- this is a document that was created for Imperial by an outside marketing organization and it relates to a survey that was done in connection with youth. This deals with youth smoking. I believe --

THE COURT: I'm familiar with the document.

MR. BERNICK: I'm sorry? Yeah.

I believe that the document should not come in for at least two reasons. Number one, it is a hearsay document. As a matter of fact, there's two layers of hearsay; it's an outside marketing organization acting as an organization for a company that's not a party to this case. And I don't believe there's a cure to the hearsay problem that's been established. But much more fundamentally, this is a project that was undertaken in connection with Canadian brands and Canadian activities in the Canadian marketplace, and Your Honor has specifically ruled that when it comes to international activity, international activities are not coming before this jury. The other side says they've not had an opportunity to conduct discovery into those matters, we are not going to have an opportunity to deal with foreign markets in this case, I believe Your Honor has consistently ruled on that. So we have a hearsay activity pertaining to a market that's not at issue in this case. I believe for both of those reasons this document should not come in.

If somebody had been able to establish that this particular research document had been used by Brown & Williamson in connection with its brands here in the United States, if that foundation were to be laid through a witness, it might be a different proposition. I don't believe that any such testimony will be offered in this case.

MR. O'FALLON: Your Honor, I'd just like to make two points. First of all, based on the information I have, B&W has not objected to the foundation of this document, so I first of all would like to have the opportunity tonight to confirm that and provide the specific documentation.

*27 Do you have any indication that you in fact objected?

MR. BERNICK: We did not object on the grounds of foundation. But, you know, the arguments on hearsay upon hearsay were expressly reserved in Your Honor's determinations.

MR. O'FALLON: Number two, the group intended to share its research, and the fact of the matter is that it just seems to be that kind of research where it was done by Imperial and then ended up in the files of B&W. This was in their files.

THE COURT: This was in the files of B&W?

MR. O'FALLON: Yes.

THE COURT: Okay.

MR. O'FALLON: Correct? According to the information I have - -

MR. BERNICK: It was produced from our files.

MR. O'FALLON: Yes, it was produced from your files.

MR. BERNICK: But I believe the statement that was made about sharing research is incorrect. The research-sharing arrangement was a specific arrangement which was governed by an agreement, and the agreement pertained to research that was conducted under the auspices of the Southampton research program, and there were specific items of research including research reports that were subject to -- subject to a cost-reimbursement arrangement, and under that arrangement Brown & Williamson had to bear costs, Brown & Williamson also had the opportunity to speak to what kind of research got done on a group-wide basis. That was a formalized program. It led to numerous research reports coming to Brown & Williamson as part of the group-wide research.

This is not part of that effort, it's not part of that arrangement, and it's wrong to say that it was. This is a document that came to Brown & Williamson on informal basis. Kwechanski did the research, it was done for Imperial, it ended up in Brown & Williamson's files.

If there were to be testimony from the witness on the stand that in some fashion Brown & Williamson actually used this research for its activities in the United States, that it had that kind of impact, I think we would be in a very different circumstance. But we're talking about putting this document in before the jury in isolation with no such foundational testimony, none at all, so it just comes in. And that's the problem, that's the prejudice, and it's wrong because it pertains to a different market and it's hearsay. And it's not foundation that actually had been conducted on the U.S. marketplace. If they could lay the foundation, I think it might be a different issue than what's being presented, but no foundation has been laid.

And the purpose of this is just unitary. It's very simple. They want to say, see, these people were marketing to kids and it's of relevance in this case. That's not what the document shows.

THE COURT: Isn't that what the document is about though?

MR. BERNICK: No. The document is a research program. It's a research program. They're trying to determine what are the activities, what is the nature of the consumption habits of that particular group of people.

THE COURT: Of children under the age -- well I think, what, 16 -- 17-year- olds, as I remember?

*28 MR. BERNICK: They introduced -- I'm not -- Your Honor, I'm not sugar-coating --

THE COURT: Yeah.

MR. BERNICK: -- what they were looking at. They were looking at 16 --

THE COURT: I know what they were looking at.

MR. BERNICK: They were looking at 16- and 17-year-olds. Okay? But it's a very different proposition that the research was done, it was done for Imperial Tobacco, and then to argue to the jury that Brown & Williamson commissioned this research or this had anything to do with Brown & Williamson's business.

THE COURT: I don't think they're -- I don't think they're saying that. I think what they're -- I'm guessing what they would be saying is you get a document that was done, commissioned by a company that is owned -- I'm not sure whether it's controlled or not -- by one of the B.A.T companies, and that this information was submitted to Brown & Williamson, which is not -- which has been done in the past, and it relates to a study regarding youth smoking. And I would assume that that's the issue.

MR. BERNICK: Yeah. But that's exactly why the document should not come in, Your Honor, because it suggests to the jury that plaintiffs are correct when they say Brown & Williamson marketed to youth, and there's nothing about that document that was commissioned by Brown & Williamson.

THE COURT: Well --

MR. BERNICK: There's nothing about that document that suggests that Brown & Williamson ever marketed to kids. But that's the purpose for which it will be tendered to the jury. And that is exactly why there is a relevance problem and a Rule 403 problem and an international territory and market problem and hearsay problem.

THE COURT: I don't see any relevancy problem. When -- if --

If your company accumulates information with respect to the results of surveys and marketing that involve the sale of cigarettes to youth, I don't find that irrelevant, and I think that's the issue. They're not saying that this proves that you're marketing to youth. I think what they're saying is that you are looking at and accumulating information with regard to the results of surveys and interviews relating to youth, which is a different story.

MR. BERNICK: Well that's not --

THE COURT: And that's a very relevant issue in this case; that is, as far as what they are claiming. They're claiming that you're marketing to youth; right? That's the claim.

MR. O'FALLON: Yes. And furthermore, Your Honor, we will introduce documents later on in this case that show that in fact B&W did direct certain of their cigarette brands, including Kools, to the 16- to 24-year-old market.

THE COURT: Let's not get into that.

MR. O'FALLON: No. But what you said is exactly right, this shows that they're actively tracking the youth market and had information within their files concerning the youth market and knew a great deal about the youth market.

THE COURT: Yeah. I would --

I'll think about that a little bit, but I guess I would tend to say that it's kind of relevant to the case if you start accumulating studies and marketing analysis of 16- and 17-year- olds.

*29 MR. BERNICK: I would urge Your Honor --

THE COURT: I'll think about it.

MR. BERNICK: -- to think about this, because I think we're into a balancing situation.

THE COURT: I know, I know, I know. And, you know, I understand your concern and I'm a little concerned too.

MR. BERNICK: Thank you.

MR. O'FALLON: Your Honor, the only other point I'd make on that document, there were numerous marketing-type conferences also where there was a great sharing of information, but I'm not sure that's relevant to what you're concerned about.

THE COURT: Okay. Let's not beat a dead horse here. Let's move on.

MR. O'FALLON: The next document --

THE COURT: I'll take that under advisement.

MR. O'FALLON: The next document is Trial Exhibit 13787.

MR. BERNICK: 1377 --

MR. O'FALLON: 787.

MR. BERNICK: 787.

MR. O'FALLON: 13787.

MR. BERNICK: Okay.

MR. O'FALLON: That's a B&W document.

MR. BERNICK: No objection to that.

THE COURT: That will be received.

MR. O'FALLON: Next document is 13809.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is 13873.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: Next document is Trial Exhibit 13904.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: The next document is Trial Exhibit 13905.

MR. BERNICK: No objection.

THE COURT: That will be received.

MR. O'FALLON: The next document is Trial Exhibit 13986.

MR. BERNICK: 9 --

MR. O'FALLON: 13986.

MR. BERNICK: Your Honor, this is a hearsay within hearsay problem again. This is a report that was done by an advertising agency in August of 1977. The advertising agency is called Hawkins, McCain & Blumenthal, and they purport to write a conference report -- it's unclear from the report exactly whether the report reflects the content of the conference or the content that they would hope that the conference would reflect. But there is no solution to the hearsay within the hearsay problem. This is a document that is a hearsay document, it purports to reflect a meeting where hearsay statements would have been made by people who are not parties to this case.

We did not object on grounds of lack of foundation. We do have an objection, though, on grounds of hearsay within hearsay.

MR. O'FALLON: Your Honor, this appears to be a document that actually records a conference between this particular ad agency, Hawkins, McCain & Blumenthal, and B&W, and if I'm understanding this correctly, the place of the conference was B&W's offices in Louisville, and we have Brown & Williamson listed as the client and then we have the people who are representing that client, an L. Lewis, an L. Glass and an L. Reynolds, as well as the people representing the agency. I would submit that what this is is a document that was produced within the course of the agency of Hawkins, McCain & Blumenthal. They -- it appears that they have been called there to have a conference with their clients, and this is the result of that conference.

*30 THE COURT: I don't see where your hearsay within hearsay is, then, counsel.

MR. BERNICK: I'm sorry?

THE COURT: I don't see where you get hearsay within hearsay there.

MR. BERNICK: It's a document that was not created by Brown & Williamson but by the outside organization, so it's hearsay. It purports to reflect the content of a meeting where hearsay statements would have been made.

THE COURT: By your client.

MR. BERNICK: Perhaps by my client, but also by the people who were attending for the advertising agency. And this -- and this is exactly --

It is the latter that is the concern for the following reasons: If you take a look at what then is attached to the document -- to the memo, it's not a set of minutes. It's a series of bullet points, bullet-point ideas. You can't tell whether this even is what got said at the meeting as opposed to what the advertising agency was pushing at the meeting. The only thing that says or suggests that it may have been was what was said, and we don't know --

The covering memo, it says "To receive "-- "Purpose: To receive and participate in an R&D briefing of the LTS product in three major areas, one, pharmacology effects, two, technology, three, satisfaction research." And you get to the discussion, the only discussion that's recorded is on the very cover memo, says "Discussion," first bullet, "These three areas were fully explored." Okay. Next bullet, "Some type of quantitative research may be necessary to place accurate, if possible, dimensions on satisfaction. Multi-dimensionality scaling will suggest that there's one method." So you never really get whether the attachment was their agenda or what they wanted to accomplish or what got said by them or by B&W.

This is not really a set of conference minutes, and that's the deceptive part of it, is that they will hold this out as being here's what we all agreed to, but there's nothing in the document that actually says that. That's the problem with dealing with hearsay documents, because the people aren't here, aren't on the stand, and the document that's offered in isolation, you really can't tell what was said at that meeting.

THE COURT: But this is your ad agency reporting what you and your agency discussed.

MR. BERNICK: It is --

THE COURT: And the fact that you're not happy with the competency of your ad agency doesn't seem to be relevant.

MR. BERNICK: But that's an argument, that's a point, Your Honor, that goes to the weight of the evidence, the evidence were it actually admissible on the proposition that this is what actually got said.

Yes, if we had the person on the stand and he said yes, this is what got said by B&W at the meeting, then your argument I think would be correct. Our unhappiness with what they say goes to the weight of the evidence. Our problem is that because this is a hearsay document and it contains a recitation of hearsay, we don't know what was said at that meeting, we don't know whether to be unhappy with it or sad about it or anything because it hasn't cleared the burden for being admitted as an exception to the hearsay rule. That's the problem.

*31 THE COURT: But it's your client talking.

MR. BERNICK: No, we don't know that. That's not what the document says.

THE COURT: Well the document says that the meeting was between your client and your client's ad agency.

MR. BERNICK: Right. And then who said what? You can't figure it out from the document.

THE COURT: Well then your client's ad agency should learn to write better. But that's not the issue.

MR. BERNICK: Well our ad agency should learn to write better, that may be true, but it doesn't solve the evidentiary problem that because they didn't write well and we don't know what was said, you can't tell the jury that anything was said. They'll stand up in closing argument and say, "Look what those people, you know, what those people agreed to," and they won't know if that's true.

MR. CIRESI: Now I was just sitting here quietly and listening to you, but it's not hearsay, it's 801(b)(2), it's a representative admission by an agency acting within the scope of its agency. It's not hearsay.

THE COURT: Counsel, if you're going to talk, you're going to have to get a microphone.

MR. CIRESI: I'm sorry, Your Honor.

THE COURT: I've been waiting a long time to say that to Mr. Ciresi.

(Laughter.)

MR. BERNICK: That's our argument on the document.

THE COURT: Okay, I don't buy it. That will be received.

MR. O'FALLON: I was just going to say what Mr. Ciresi said.

The next document is Trial Exhibit 14334.

MR. BERNICK: Just give me a half a second here. I'm sorry.

MR. O'FALLON: Sure.

MR. BERNICK: 14324?

MR. O'FALLON: Yes. That's a TI document.

MR. BERNICK: I don't believe that they have an objection. I've not been informed of any objection, Your Honor, that they have.

THE COURT: That will be received. I'm sorry --

MR. BERNICK: 14, you said, 324?

MR. O'FALLON: Let me go back to it. 14334.

MR. BERNICK: 14334.

MR. O'FALLON: Next document is 14350, this is another TI press release.

THE COURT: I'm sorry, is 14334 okay?

All right. That will be received.

MR. BERNICK: I'm sorry, Your Honor, I'm little bit leery of the TI documents because I know that all the other parties have been consulted with regard to the documents. I am not really sure about TI. What I'm wondering is whether we can send somebody out, even right now, to find out about the TI documents. I think there are only four of them.

THE COURT: Where is TI?

MR. BERNICK: Well we'll have to get in touch with the people who represent them and take a look at the documents.

THE COURT: It's not like they don't know what's going on; is it? I mean don't they -- don't they know what's happening here?

MR. BERNICK: Yeah.

THE COURT: I think it would be appropriate, if they have an objection, that they should be present.

MR. BERNICK: Would it be all right if we passed over those for now and came back to them at the end of the hour?

THE COURT: All right. Let's pass over the TI documents. I'm not particularly happy that we have to do it that way, but --

*32 MR. BERNICK: I understand.

MR. O'FALLON: So we'll pass on 14334. 14350 is also a TI document we'll pass on for now.

MR. BERNICK: Right.

MR. O'FALLON: 14384 is also a TI document we'll pass on. Do you have that, 14384?

MR. BERNICK: Yes.

MR. O'FALLON: And the next document is 18302. This is another TI document as well.

MR. BERNICK: 18 --

MR. O'FALLON: 302.

MR. BERNICK: 18302. Okay. Is that all in that category?

MR. O'FALLON: Yeah. Let me just -- Mr. Gordon is handing me -- let me just --

Did I hit 13005?

MR. BERNICK: 13 --

MR. O'FALLON: Did I miss that one?

THE COURT: No, I don't show 13005.

MR. O'FALLON: I'm sorry, I inadvertently flipped over that one. 13005, this is an RJR document.

MR. BERNICK: I don't believe there's any objection to that.

THE COURT: That will be received.

MR. BERNICK: While we're on a cleanup, the document -- the document after 12434 was which one?

THE COURT: Well I have 12476.

MR. BERNICK: Okay.

MR. O'FALLON: Let me just confirm that.

MR. BERNICK: Okay. Got it.

MR. O'FALLON: Okay.

MR. BERNICK: Your Honor, I don't know if this would be an appropriate time, but I did have some comment on this category approach and some other general comments on the documents that we're talking about. I can do it now or at the end, or at the end of a category, whatever is more appropriate.

THE COURT: I don't have any preference. Go ahead.

MR. BERNICK: Would this be all right?

THE COURT: Go ahead.

MR. BERNICK: We don't believe it's appropriate to have these documents categorized in any fashion. That was not part of the designation process, it was not part of the court's order. It constitutes essentially a contention by counsel that the documents actually stand for some proposition relating to addiction, low tar, compensation, nicotine, and that really is exactly the kind of problem that we were concerned with that might creep into this procedure. These are counsel's categorizations and counsel's contentions, and we don't think that should be part of this document process.

We believe that the documents, if they are to be submitted to the jury, should be submitted in boxes, and the jury can go through the documents and draw their own conclusions. Otherwise we're back into the world of making contentions concerning the documents.

THE COURT: I'm not sure I understand what you're saying that they're about to do. Are you saying that they're going to --

(Box of exhibits to be presented to the

jury was held up to the court.)

THE COURT: Okay. I see what you're saying now. I don't think that those signs should be on the documents. You can submit the documents and you can submit them in any order that you want, but I don't think it is appropriate for you to designate their classifications to the jury.

MR. CIRESI: Then we will remove them, Your Honor. The previous times we've done that, that's what we've done, because it helps the jury to know what they're being introduced for, just as you do with the witness.

*33 THE COURT: I understand. But --

MR. CIRESI: I understand --

THE COURT: -- they are objecting and I think --

MR. CIRESI: That's fine. We'll take them off.

THE COURT: Okay.

MR. BERNICK: With regard to the --

We have the documents that are newly being admitted now, and we also have a collection of documents that they apparently want the jury to look at tomorrow that already have been admitted into evidence.

THE COURT: All right.

MR. BERNICK: Now we would object to that process, and for the following reasons: Number one is that their most current list of designations does not include those documents. Those are documents that are not included in predesignation. Number two --

THE COURT: Excuse me. The documents that have already been introduced?

MR. BERNICK: That's correct, they're not part of the predesignation.

THE COURT: You're hardly surprised.

MR. BERNICK: I'm sorry?

THE COURT: You're hardly surprised, I take it.

MR. BERNICK: No, I am a little surprised because I believe these documents were originally included and they were taken off. But that is not what we're dealing with here this afternoon. That's number one.

Number two is that 

Number three, I thought that the purpose -- we believed that the purpose of this exercise was to enable the jury to consider additional documentation in a sense as it would be coming into evidence; that is, materials that they've not seen before. The only purpose that I can see or that we can see for showing them already- admitted documents is to have them in a sense do exactly what they would do for the first time when they retire to deliberate; that is, to consider the evidence that's already been admitted and start to draw connections and draw conclusions about what the new documents show versus the old documents. That is something that should be reserved for deliberation.

So we would object to their attempt to inject into this process now their version of the documents that already have been admitted into evidence.

THE COURT: Wait a minute, counsel, what do you mean, "their version of the documents?"

MR. BERNICK: Because it's just their documents, it's not the ones that we -- that we submitted.

THE COURT: Well do you --

You can submit yours.

MR. BERNICK: Well this is the first time, Your Honor. This issue never -- this issue never got raised, because this is the first time that we're now seeing they want to show these documents tomorrow. We don't have our documents here.

THE COURT: I disagree with your analysis of the purpose of this. Because of the nature of the case, one of the purposes is to allow the jury to absorb what's happening in the case, and after all, that's what we're here about, we're trying to educate the jury as to what the case is about. And we're taking a day to allow them --

*34 Otherwise we could stop the proceedings and have the jury, each one of the jurors read through every document as it's introduced, and sometimes that's done if it's a small document. But that's not a very practical solution.

I don't see any prejudice involved in allowing the jury the opportunity to read the documents that have been introduced. I assume that they have the right to have the jury read that and certainly that you have just as much right to have the jury read yours,, and I'm assuming that both their documents and your documents are going to be available tomorrow morning for the jury to review, and in addition to that this later group of documents. And I don't see anything improper, except I would strongly recommend that you have your documents here so they get a chance to see yours, too.

MR. BERNICK: Yeah, I understand that, Your Honor, but this is -- I mean this is -- literally just before we commenced here, this is the first notice that we have had that they intend tomorrow to show their documents. It's going to be a real task for us to get these things here tomorrow.

THE COURT: We already have them here. Your documents are here already, aren't they? Don't we have those?

MR. BERNICK: I believe we have a jury set and an admitted set. I just don't know -- I'm not sufficiently in touch of the details of the logistics to know what's involved in getting another set of documents here.

THE COURT: Oh, counsel, I'm very confident that you are capable of having your documents here so the jury can see them. I really am.

MR. BERNICK: You have too much confidence in me.

Let me come back to just what we're going to be dealing with tomorrow.

THE COURT: Okay.

MR. BERNICK: I'm not urging that Your Honor reconsider this process, I'm really urging that we get in touch with what I think this is all going to amount to at the end of the day, because I don't think it's very hard to see. There's no way it's going to be humanly possible -- you've got five boxes of admitted documents already. Just the admitted documents. You then have an additional one, two, three, four -- I think at least six new boxes of documents that they have never seen before. So you have a total of 11 boxes of documents. We're probably talking about upwards of five hundred documents. And to believe that this jury is going to sit there and walk through those documents such that the individual members of this panel are truly informed about the content of those documents and the way that is meaningful for them I think is incredibly farfetched. Incredibly. If we were talking about 25 or 30 or 40 or 50 documents, it would be a totally different proposition.

I think I know what's going on here, I think everybody does as well. What's really happening here is that we're developing the ability of the state in closing argument to come back and to refer to the vast volume of documents that we're dealing with, and to select any one of a number of documents in closing to feature that was never the subject of testimony because that testimony would have been impractical to offer on a document-by-document basis. I think that's really what this is all about. And the problem is, if we can be assured that that's not going to happen, I would be a happy guy and I think my clients would be much more satisfied with this process, but I believe that's where this thing is going, and that's why I would urge that after we get done with this whole process, and maybe we have this session tomorrow and we'll try to get our documents here, that the court reserve on the issue of what use will actually be made of documents that were never the subject of testimony by a witness and have solely been brought into this process through this procedure, because I think it's highly prejudicial to allow the use of these documents that have not been supported by a tender of testimony.

*35 THE COURT: Okay. I expect that you'll have the identical opportunity.

MR. BERNICK: I'll have the what?

THE COURT: You'll have the identical opportunity.

MR. BERNICK: I don't -- I don't believe, Your Honor, that it's --

Well we may have the same opportunity from a procedural point of view, but it doesn't help us very much. And the reason it doesn't help us very much is that we have the burden at the end of the day of accounting for and responding to what they say about our conduct, and it is a difficult process to go back over 40 years and, with respect to even single documents, figure out what was happening at the time, what the research was showing, what the purpose of the document was. For every one of these documents we could conceivably have to introduce three or four and offer the testimony of a witness, and Your Honor, this trial would never, never end. We're not going to do that.

THE COURT: No, we know when the trial is going to end.

MR. BERNICK: We know what Your Honor has said.

THE COURT: Yeah.

MR. BERNICK: We expect to abide by those restrictions and we're prepared to do that. But that is the real impact of this exercise, is that we will not in fact be able to respond to all these documents document by document, and that's the purpose of rules and restrictions on the volume of information that can be afforded and tendered to a jury, is to make it a meaningful process, so that if a document comes up, we can have the opportunity, in fact, to respond.

So I come back, I'm not asking for relief on this now, but I think that given the volume of what we're dealing with here, we ought to revisit before the close of the evidence what is the status of the documents that have never been -- have never been supported through the testimony of a sponsoring witness.

THE COURT: All right. I'll be happy to revisit it without representing anything. If you can show me that there's some prejudice that accrues -- I'm having a little hard time figuring out how you would be prejudiced. But I'll -- I'll revisit it.

MR. CIRESI: Your Honor, I'm not going to be as long as Mr. Bernick was. Let me just point out that yesterday with Dr. Glenn we had 40 years of CTR summaries put in, which I agreed could go in pursuant to a list of those documents, and they questioned him on one, and indeed they questioned him, I believe, on one page of one. The fact is we have a 40-year course of conduct --

THE COURT: I thought it was two pages, but go ahead.

MR. CIRESI: It may have been two pages. There was 40 years of conduct, -- and I defer to Your Honor's memory.

We've got a 40-year course of conduct. We have taken documents which we believe span the course of those 40 years for all of the defendants. We've been a little bit at a loss with regard to American because of events that the court is actually aware of. These documents are going in, the jury gets an opportunity for a couple days to look at them. They have the same opportunity to do that. These aren't demonstrative documents or any of that nature, these are substantive documents which are being submitted, which they also have the right to do.

*36 If they're going to overload or the plaintiffs are, then the jury will hold those parties accountable. We don't intend to do that.

THE COURT: Okay. Are we done?

MS. WIVELL: Good afternoon, Your Honor.

THE COURT: Good afternoon.

MS. WIVELL: I'm not sure that my mikes are on here.

THE COURT: Doesn't sound like it.

MS. WIVELL: No, it doesn't. Does that sound better?

THE COURT: Now it does.

MS. WIVELL: Martha Wivell for the plaintiffs, Your Honor.

We would offer 3412.

MR. BERNICK: 3412. I don't believe there's an objection to that document. That's an RJR document.

THE COURT: That will be received.

MS. WIVELL: Your Honor, we would offer 10001.

MR. BERNICK: No objection.

THE COURT: That will be received.

MS. WIVELL: We would offer 10002.

MR. BERNICK: A Lorillard document. I don't believe there is any objection.

THE COURT: That will be received.

MS. WIVELL: We would offer 10004.

MR. BERNICK: Same, a Lorillard document, no objection.

THE COURT: That will be received.

MS. WIVELL: We offer 10005.

MR. BERNICK: No objection.

THE COURT: That will be received.

MS. WIVELL: We offer 10006.

MR. BERNICK: No objection.

THE COURT: That will be received.

MS. WIVELL: We offer 10015.

MR. BERNICK: Same, Lorillard, no objection.

THE COURT: That will be received.

MS. WIVELL: We offer 10017.

MR. BERNICK: Same, no objection.

THE COURT: It will be received.

MS. WIVELL: We offer 10019.

MR. BERNICK: No objection.

THE COURT: It will be received.

MS. WIVELL: We offer 10024.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10035.

MR. BERNICK: 35.

MS. WIVELL: I'm sorry, 36.

MR. BERNICK: No objection.

MS. WIVELL: Let me just be clear for the record once more that that's 10036.

THE COURT: Received.

MR. BERNICK: All right.

MS. WIVELL: We offer 10038.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10039.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10096.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10102.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10103.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10105.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10107.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10108.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10112.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10160.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10162.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10175.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Just one moment.

*37 We offer 10262.

MR. BERNICK: 262. Is that PM document. I don't believe there's any objection to it.

THE COURT: Received.

MS. WIVELL: We offer 10285.

MR. BERNICK: Same.

THE COURT: It's received.

MS. WIVELL: We offer 10290.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10320.

MR. BERNICK: A PM document, no objection.

THE COURT: Received.

MS. WIVELL: We offer 10356.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Offer 10383.

MR. BERNICK: Again, PM document, no objection.

THE COURT: Received.

MS. WIVELL: We offer 10417.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10422.

MR. BERNICK: PM document, no objection.

THE COURT: Received.

MS. WIVELL: We offer 10423.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: We offer 10473.

THE COURT: Received.

MR. BERNICK: No objection.

THE COURT: Sorry.

MS. WIVELL: We offer 10476.

MR. BERNICK: PM document, no objection.

THE COURT: Received.

MS. WIVELL: We offer 10478.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10553.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10554.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10566.

MR. BERNICK: PM document, no objection.

THE COURT: Received.

MS. WIVELL: We offer 10749.

MR. BERNICK: 749. I don't have 10749.

MS. WIVELL: All right, why don't we --

I'm sorry, Your Honor, at this time I'd like to withdraw that offer.

I would like to offer 10799.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: I would offer -- like to offer 10840.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: I would like to offer 10841.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: I would offer 10881.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: I would offer 10889.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10908.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10930.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 10945.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11072.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11077.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11127.

MR. BERNICK: 11127. No objection.

THE COURT: Received.

MS. WIVELL: We offer 11169.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs' offer 11190.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11277.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11290.

MR. BERNICK: No objection.

THE COURT: Received.

*38 MS. WIVELL: Plaintiffs offer 11330.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11419.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11420.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11539.

MR. CORRIGAN: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11540.

MR. CORRIGAN: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11545.

MR. CORRIGAN: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11547.

MR. KELLY: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer -- plaintiffs offer 11548.

MR. BERNICK: Same thing, it's yours.

MR. KELLY: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11559.

MR. BERNICK: PM document, no objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11602.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11604.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11627.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11633.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11681.

MR. CORRIGAN: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11738.

MR. BERNICK: PM document, I don't believe there's any objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11739.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11747.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11746.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11751.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11752.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11773.

MR. BERNICK: 77 what?

MS. WIVELL: Three. Two. Let me start again.

Plaintiffs offer 11772.

MR. BERNICK: No objection. It's a PM document.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11836.

MR. BERNICK: Same.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11898.

MR. KELLY: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11904.

MR. KELLY: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11905.

MR. KELLY: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11906.

MR. KELLY: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11937.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11946.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11972.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11982.

MR. BERNICK: Excuse me. No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11984.

*39 MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 11985.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 11992.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: We offer 12014.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 12016.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 12028.

MR. BERNICK: That's wrong.

MS. WIVELL: I'm sorry, let me say that -- say that again. Plaintiffs offer 12024.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 12051.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: Plaintiffs offer 18998.

MR. BERNICK: 18 --

MS. WIVELL: 18998.

MR. BERNICK: No objection.

THE COURT: Received.

MS. WIVELL: That's all I have, Your Honor. Mr. Gordon will take over.

MR. O'FALLON: Your Honor, can I just make sure about two exhibits?

THE COURT: Yes.

MR. O'FALLON: 10851. 10851.

THE COURT: Yes?

MR. O'FALLON: Was that admitted?

THE COURT: I don't show it.

MR. O'FALLON: And also, Your Honor, 10749.

MR. BERNICK: 10749? That was withdrawn.

MR. O'FALLON: Okay. Thank you.

MR. GORDON: Good afternoon, Your Honor. Corey Gordon on behalf of the plaintiffs.

Plaintiffs offer Trial Exhibit 12060. It's a B.A.T document.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12077.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12128.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12136.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12148.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12176.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12178.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12337.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12367.

MR. BERNICK: There is an objection to that. It's an RJR document. RJR has a hearsay objection to this. This is 12367, it's a document written by Teague, but it was not in connection with his employment. He was taking an outside course, taking a course. And they have preserved their foundation objection, Your Honor.

MR. GORDON: Your Honor, this is a document authored by an employee of R. J. Reynolds, it's stamped "RJR SECRET" at the top, it's sent to Mr. R. A. Blevins, Jr. of the marketing research department at R. J. Reynolds, it concerns pH of cigarettes. Claude Teague, of course, is an R. J. Reynolds scientist. It was produced from the files of R. J. Reynolds. It is an 801(d)(2) document. It is not hearsay.

THE COURT: Received.

MR. BERNICK: Your Honor, just to be clear on the record, I want to make sure --

*40 THE COURT: I'm sorry, go ahead.

MR. BERNICK: I want to make sure this is a Reynolds document, not my client's. Mr. Teague was taking a course. This was a personal document. It's not something that fits within the scope of his employment activities; therefore, it cannot constitute an admission of a party and it would be hearsay.

THE COURT: Received.

MR. GORDON: Your Honor, plaintiffs offer 12368. It's an RJR document.

MR. BERNICK: I'm sorry, which one?

MR. GORDON: 12368.

MR. BERNICK: I don't believe there's any objection to that.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12409.

MR. BERNICK: Same.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12421.

MR. BERNICK: No objection to that.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12428.

MR. BERNICK: Same, no objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12447.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12480.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12618.

MR. BERNICK: That's a Reynolds document, no objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12715.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12747.

MR. BERNICK: Same, no objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12844.

MR. BERNICK: Same, no objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 12885.

MR. BERNICK: Same, no objection.

THE COURT: Received.

MR. CORRIGAN: Excuse me, Mr. Gordon, I think you said --

THE COURT: Sorry?

MR. CORRIGAN: I think you said 844 when you meant 884, just so the record is clear.

MR. GORDON: Thank you. The record should be 12844.

THE COURT: 12844 is what I had.

MR. CORRIGAN: Well then that's -- I don't see that on my list.

MR. GORDON: It's an RJR document.

MR. BERNICK: Right.

MR. CORRIGAN: Yeah.

MR. BERNICK: 1981 objectives.

MR. CORRIGAN: 1981 objectives.

MR. GORDON: Nineteen -- no.

MR. BERNICK: Then we got a --

MR. GORDON: It's a 1980 document, Ames test on ammoniated tobacco.

MR. BERNICK: We don't -- we don't have that on the list, Corey. We have 884 but not 844.

MR. GORDON: That's presumably a typographical error.

MR. CORRIGAN: Mr. Fribley points out to me the February 12th revised list does seem to have that number on it, but not the 12884 number. Are you going to offer 12884 as well?

MR. GORDON: Not today.

THE COURT: Okay. So your list does show a 12844; correct?

MR. CORRIGAN: On the list attached to the letter of February 12th.

MR. BERNICK: That was an earlier list; right?

MR. CORRIGAN: It was an earlier list.

MR. BERNICK: There's a difference between the lists, at least a difference in -- my list is different from what's here. I don't know which one the right one is. I'm not in a position to respond to 844. I don't even know what the document is. And I don't even know if it's my client's document, Your Honor. We can track that down.

*41 THE COURT: Whose document is it?

MR. GORDON: It's an RJR document, and they did not assert a foundation objection when this document was first identified.

THE COURT: Okay. And it was on the list.

MR. GORDON: It was on our February 12th list.

MR. BERNICK: Whatever Your Honor's determination, just to make it clear, I don't have Reynolds authority to speak to that document. It's not on my list.

THE COURT: I do. Received.

MR. GORDON: Plaintiffs offer 12885.

MR. BERNICK: 12885?

MR. GORDON: Right.

MR. BERNICK: I thought that was already checked off.

MR. GORDON: Oh, I -- did -- okay. I may have gone back. I apologize.

Plaintiffs offer 12897.

MR. BERNICK: It's an RJR document. I don't believe there's any objection.

MR. GORDON: Plaintiffs offer 13067.

MR. O'FALLON: Your Honor, can we just have a clarification on whether 12885 was in fact admitted?

THE COURT: 12885 has been introduced twice.

MR. BERNICK: Right.

THE COURT: It's been received only once, but that will take care of it. All right.

MR. GORDON: 13067.

MR. BERNICK: 13067 is a Reynolds document. I don't believe there is any objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13073.

MR. BERNICK: Again, same.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13188.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13229.

MR. BERNICK: A Reynolds document. I don't believe there's any objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13426.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13432.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13478.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13481.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13482.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13488.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13490.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13502.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13529. Excuse me. Well yes, we do offer 13529.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: For those who are following the order, I jumped. We also offer 13518.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13553.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13574.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13583.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13591.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13608.

*42 MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 13633.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14026.

MR. BERNICK: That's a Lorillard document. I don't believe there's any objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14029.

MR. BERNICK: Same.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14071.

MR. BERNICK: We won't object to that.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14079.

MR. BERNICK: No objection.

MR. GORDON: Plaintiffs offer 14085.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14096.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs -- I'm sorry.

Plaintiffs offer 14198.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14209.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14212.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14213.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14214.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14215.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14216.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14217.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14218.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14247.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14248.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 14273.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17762. American.

MR. BERNICK: Yeah, I know.

No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17763.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17764.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17765.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17776.

MR. BERNICK: Hang on.

MR. GORDON: B.A.T.

MR. BERNICK: I know.

No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17825.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 17852.

MR. BERNICK: Yeah, we object to this, Your Honor. This is a Lexis Nexis printout of an article that apparently appeared on June 22, 1994 in the Home News Section for the PA News? It says a Press Association News File.

So it's a hearsay document. This purports to quote a B.A.T spokesperson, it purports to quote what Kessler has said, that's former FDA Commissioner Kessler, and a whole bunch of other people.

*43 MR. GORDON: The whole bunch of other people include people from B.A.T Industries talking about Y1. This document was produced from the files of Brown & Williamson.

MR. BERNICK: It's still a hearsay -- it's a hearsay document, not within any exception. A newspaper article is a newspaper article is a newspaper article. It ought not come before this jury.

THE COURT: Well there are exceptions to that. Whose newspaper is it?

MR. GORDON: Well it's a Lexis printout.

THE COURT: PA?

MR. GORDON: Apparently something called the Press Association Limited, and the byline is Finley Marshall, PA News. I suspect the fact that it says "Limited" suggests that it was probably a British article that B&W was interested in pulling to see what its comrades in England were saying about Y1. Because that is indeed what the story is about, it's a quotation of B.A.T Industries, and in fact the highlighting on it, underlined, which means that was the search term that was being used, is "B.A.T Industries." So when B&W's personnel searched the Lexis database using the key term "B.A.T Industries," this is what they came up with. They put it in their files.

If in fact it is hearsay, and I question whether it is, but if it is, then it's certainly notice to B.A.T of what its sister corporation or parent -- I guess B.A.T Industries is the parent -- was saying about Y1 in 1994.

MR. BERNICK: Your Honor, if there had been a foundation laid for this document through some testimony to establish, as was done with their witness on the stand, that a quote that appeared in the newspaper and the like was an appropriate quote, it would be a different proposition, but just because a newspaper article appears in our files doesn't solve the hearsay problem.

THE COURT: Yeah. I'm a little troubled with that. Sustained.

MR. GORDON: Plaintiffs offer 17865.

MR. BERNICK: 17865.

No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 18028.

MR. BERNICK: That's a PM document. I don't believe there's any objection.

MR. GORDON: Plaintiffs --

THE COURT: Received.

MR. GORDON: -- offer 18105.

MR. BERNICK: No objection.

THE COURT: Received.

MR. BERNICK: It's a PM document.

MR. GORDON: Plaintiffs offer 18116.

MR. BERNICK: Same.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 18122.

MR. BERNICK: Same.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 19299.

MR. BERNICK: No objection.

THE COURT: Received.

MR. GORDON: Plaintiffs offer 19300.

MR. BERNICK: No objection.

THE COURT: Received.

MR. BERNICK: Your Honor, in an effort to expedite this process, number one, I think we have some information on the TI documents.

THE COURT: All right.

MR. BERNICK: And number two is that I believe that with regard to the balance of these documents, that there are no other objections that we have. Maybe we can have an offer that is in bulk. But then I would like to make a further statement regarding the status of our objections at the conclusion of that process. But maybe if you just have got a whole list of all the remaining numbers, we can keep track and maybe have a group offer.

*44 MR. CIRESI: Why don't we just read them into the record as received, then, if there are no objections, and then you can make your statement.

But there were three documents, I believe, Your Honor, that I'm not sure if we got a received on the record, and those were documents for which there were no objections, 12897, 14 --

MR. BERNICK: Hang on. Hang on here. 12897.

MR. CIRESI: Correct.

MR. BERNICK: I have that marked as in.

MR. CIRESI: Well there just wasn't on the record a "received."

MR. BERNICK: Okay.

MR. CIRESI: But there was no objection.

THE COURT: All right. Received.

MR. BERNICK: And 14079, again no objection.

THE COURT: Well I show it received, but --

MR. CIRESI: Okay.

THE COURT: We'll receive it again.

MR. CIRESI: And 18028.

MR. BERNICK: It's the same.

THE COURT: It's received.

MR. CIRESI: Okay.

MR. GORDON: Are there any objections to the TI documents, the four TI documents?

MR. BERNICK: No. And just so we're clear, that's 14334, 14350, 14384, and 14465.

THE COURT: They will be received.

MR. O'FALLON: There was also -- excuse me. There was also 18302; wasn't there?

MR. BERNICK: 18302. I don't know what the status of 18302 is. We didn't check on that one. Was that another one?

MR. O'FALLON: That was, I believe, the last one of that series.

THE COURT: Yeah, that was noted.

MR. BERNICK: I'll tell you what, why don't -- why doesn't the court provisionally receive it, and then maybe over the evening we can check that out and make sure the court knows.

MR. CIRESI: That's satisfactory.

THE COURT: Okay, we'll do that.

MR. BERNICK: You got that number, 18302.

THE COURT: 18302 will be provisionally received.

MR. GORDON: For the record, then, I will move the following documents admitted into evidence on behalf of plaintiffs: Exhibit 10007, 10488, 10547 --

MR. BERNICK: Wait. Just bear with me. 10488?

MR. GORDON: You want me to take them one at a time?

MR. BERNICK: Yeah. Just give me the list. I need a chance to flip pages.

MR. GORDON: Okay.

MR. BERNICK: Go ahead.

MR. GORDON: 10547, 10836, 11170, 11357 --

MR. BERNICK: Hang on. Okay.

MR. GORDON: 11744, 12171, 12366, 12507, 12857, 13139, 13213, 13531, 13540, 14034, 17777. The last group, 10193, 10329, 10467, 10520, 10555, 10585, 10589, 10590, 11350, 11405, 11618, 11632, 11702, 11723, 12095, 12242, 12484, 12560, 12776, 12920, 12938, 12939, 13060, 13083, 13129, 13153, 13176, 13198, 13245, 13267, 13286, 13499, 13503, 13652, 13657, 13760, 13973, 13983, 14465 and 18239.

MR. BERNICK: Is that it?

MR. GORDON: We also have -- if I overlooked it, I intended to read 12113.

MR. BERNICK: You did.

MR. GORDON: Okay. We offer that one. And we also offer 10851.

MR. BERNICK: I have that one as already being in. And with regard to the balance, Your Honor, that were read by Mr. Gordon seriatim, on behalf of my client we have no objections. I understand that with regard to the other parties, they do not have objections either.

*45 THE COURT: Those will be received into evidence.

MR. BERNICK: Okay. This is all subject -- I'd like just, Your Honor, to make clear on the record that we do have the objections that were made prior to Your Honor's issuance of the order governing this procedure, and obviously we preserve those objections. We understand that Your Honor has ruled. And I further do have the objection that this material is cumulative, and this afternoon as we've gone through, there's been no record justification of these incremental documents, and we therefore specifically preserve the objection that these incremental exhibits are in fact cumulative and should not come before the jury.

THE COURT: The record will show that.

MR. GORDON: Thank you, Your Honor.

MR. CIRESI: I believe that's it, Your Honor.

THE COURT: All right. Then tomorrow morning we'll bring the jury in at 9:30. I will give them a brief instruction and I will then retire. The jury will then have the documents available throughout the entire day for review. You can designate your two people and have the counsel tables available for use by the jury.

The jury will be taking a longer-than-usual lunch period tomorrow. They've asked the opportunity to go to someplace outside of being in the building, which I granted, and so that they can have one of these luxurious lunches that counsel have every day. And so they'll recess from about 12:00 to 2:00. That's just for your information. And then we expect they'll also have a recess in the morning and the afternoon, as usual, 15 minutes. They'll go back to their own jury room and the clerk will escort them back. All right?

MR. CIRESI: Very good, Your Honor. Thank you.

THE COURT: Yes. Anything further?

MR. O'FALLON: Your Honor, just as a matter of procedure, my suggestion would be that someone remain from the defendants and we just go through the boxes so that the defendants and the plaintiffs agree that these are the right documents.

THE COURT: I would appreciate that if that could be done. All right.

MR. CIRESI: Thank you.

THE COURT: We will recess until tomorrow morning.

MR. CIRESI: Good evening, Your Honor.

THE CLERK: Court stands adjourned.

(Recess taken.)
 

Return to tobacco index
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remember, there were a total of something like 280 million records that were processed to build this database of Minnesota claims, and we find all of the cases where somebody had a major smoking-attributable disease. That's the first step. And then the other information which is available to us is the person's gender, a man or a woman, and -- and their age, and both of these are on the Minnesota claims data, and what we do is we break our calculations down into a few subgroups based upon -- we do -- do the calculations separately for men and --------------------- Page 18 follows --------------------- women and for two age categories, and I can show you that in just a minute. So now we have all the people who have major smoking- attributable diseases, like lung cancer, we have the person's gender and their age, and then what we do is we calculate the total expenditures, total dollars that were expended, actually expended by the state or by Blue Cross and Blue Shield to treat all of the - - to treat these people who had a major smoking-attributable disease, and those dollars are available to us in the claims records by just totaling up all of the expenditures for a particular person. We do that for all of the people. So now what we have at this point is we have the total expenditures for people with particular disease, and we know their age and their gender. So it's now like we're at the left side of that last chart; that's all the expenditures. Okay. Now what we have to do is we have to apply the reductions. Okay? So the next step is to apply the first reduction, and the first reduction asks the question what percentage of these persons we found in the Minnesota claims, what percentage of them are smokers? They have -- these people have lung cancer, for example, and now we need to know what percentage of them are smokers. And to get that information we turn to the National Medical Expenditure Survey, which is that large national survey that provides information to us about smoking, disease, and expenditures. And so we can look --------------------- Page 19 follows --------------------- there to see of lung cancer patients, what fraction, what -- what percentage are smokers, and that's the -- that's where we -- we get the percentage here, and that's the percentage we apply to the total dollars for Minnesota. The next step is to apply the second reduction. After the first reduction, we've set aside the non-smokers. Okay. So the second reduction says even among smokers, what -- what proportion of the disease was actually caused by their smoking? So what percentage of smokers' disease is attributable to their smoking? And to estimate that quantity, we use the National Medical Expenditure Survey data as well. *8 And now there's one more reduction to make, the third reduction. Remember, the third reduction says what dollar percentage of all the medical expenditures for a person who has lung cancer, what proportion of those dollars, what percentage of those dollars is actually for treatment of the lung cancer or things related to the lung cancer? And the third reduction, we can calculate that from the Minnesota claims data, because in the claims data, remember, we know who has lung cancer and who doesn't, and we know how much dollars -- how many dollars were spent on people with lung cancer and how many dollars were spent on people with not -- without, and that's the basis of the information we need to make the third reduction. So this is the -- these are the steps to apply the core model to calculate smoking-attributable expenditures here in Minnesota. --------------------- Page 20 follows --------------------- Let me just quickly review. We identify the people with the major smoking- attributable disease using the 280 million Minnesota claims records, we also get their gender and age from the claims records, and then we calculate the total dollars actually expended by the state or by Blue Cross Blue Shield to treat these people who have one of these diseases. These are the actual dollars spent to treat the people who have one of these diseases. But that wouldn't be a fair estimate of the dollars caused by their smoking, so we have to reduce those dollars three times. The first two reductions, the information we need comes from the National Medical Expenditure Survey, and the third reduction, the information comes again from the Minnesota claims records, and that's how we apply the core model to Minnesota. Q. Thank you, Professor Zeger. You can now return to the stand. What statistical methods are used in the core model? A. Well there are two main methods we're focusing on. The first is a method that we call stratification. It's a big word but quite a simple idea. We got the gender and age for all of these Minnesotans who had one of these diseases caused by smoking, and when we do the calculations, when we do the application of the three reductions, we do that separately for women, separate from men, and younger people, younger women separate from older women, younger men separate from older men, and that -- that -- that strategy is called stratification. We've broken the total persons into subgroups that -- that are --------------------- Page 21 follows --------------------- more similar to one another. And the reason for stratification is so that when we talk about reductions, for example the second reduction, what proportion of the disease is actually caused by the smoking, we're actually comparing the rates of disease among smokers and non-smokers and we're -- and we're comparing people that are otherwise similar, they're of a similar age and a similar gender. So it's -- it's in order to -- to compare like with like to the extent possible. And then the second method that's in the application of the model is a method called attributable risk. You may have heard about that before from Dr. Samet. Attributable risk is just a way - - or attributable proportion is just a way to take the total health-care burden and calculate the burden of disease that's caused by smoking. And actually the first two reductions taken together is a standard method of epidemiology and biostatistics called attributable risk, attributable proportion sometimes called. *9 Q. Now with respect to stratification, you said that you compare like to like. Is that in order to isolate any difference that you want to measure between these two groups? A. Yes. Remember we were looking at the number of people who had lung cancer among the smokers and the number of people who had lung cancer among the never smokers when we were trying to figure out how much of the smokers' cancer was actually caused by their smoking. That was when we were looking at the --------------------- Page 22 follows --------------------- second reduction. And if we were comparing, you know, very old smokers with very young never smokers, that wouldn't be fair because age is also a factor in -- in when you get a disease. So you want to compare smokers and non-smokers who are otherwise similar. Q. Now are these statistical methods; that is, stratification and attributable risk, common and standard in biostatistics and epidemiology? A. Yes. They're the -- Of the things we teach, you know, new students, health professionals learning biostatistics, these would be two of the things we teach them very early in an introductory course. So these are standard methods that are used over and over in public health. Q. Did you calculate smoking-attributable expenditures for the core model? A. Yes. Q. And did you prepare an exhibit of the expenditures for the state of Minnesota for lung cancer and COPD? A. Yes, I did. Q. Can you turn to Trial Exhibit 30184. Do you have that exhibit, professor? A. I do. Q. And is that exhibit illustrating the core estimate of expenditures for the state of Minnesota for lung cancer and COPD? --------------------- Page 23 follows --------------------- A. Yes, it does. Q. Was this prepared by you? A. Yes. MR. HAMLIN: Your Honor, we offer Trial Exhibit 30184 for illustrative purposes. MR. GARNICK: No objection. THE COURT: Court will receive 30184 for illustrative purposes. BY MR. HAMLIN: Q. Professor Zeger, I'm placing the exhibit on the easel, and again, with the court's permission, I'd ask you to come down and tell us what is on this exhibit. A. On the flip chart, I had just listed the steps we have to go through, and what we did is we applied those steps to all of the expenditures by the state of Minnesota for the treatment of Minnesotans who had lung cancer or COPD, which as you recall were two of the -- two of the diseases Dr. Samet identified as being caused by smoking. And so as I indicated, we took the total expenditures for persons with lung cancer or COPD and we broke the people into four groups of -- subgroups of people: the women who were 35 to 64, the older women, the men who were 35 to 64, and the older men. And then we went through the steps that I showed you separately for each of these four subgroups. And sometimes we call this stratification, and these groups are sometimes called --------------------- Page 24 follows --------------------- strata, and that's where the word "stratification" comes from. So then what we did is we simply applied the three reduction percentages to the dollars separately in each of the groups. And I -- I can go through that now for one of them. *10 Let's start with the women 35 to 64 years old. Remember, we take the Minnesota claims data, we find all the women 35 to 64 years old who have a diagnosis of lung cancer or COPD, chronic obstructive pulmonary disease. That's by searching those 280 million records, we find all of these people. And then we total up their medical expenditures paid for by the state. And in this case there were 115.4 million dollars in the Minnesota claims data, the state's claims data, that was paid to persons -- to women 35 to 64 who had lung cancer or COPD. So this is our starting point. These are the total expenditures. But remember, we need to reduce the total expenditures three times to get the expenditures which are fairly attributable to their smoking. So we start with the 115 million, and we then ask what percentage of women 35 to 64 who have lung cancer or COPD, what percentage of them are smokers? And using the National Medical Expenditure Survey, we estimate 85.3 percent. Q. Professor Zeger, you're pointing to a bar chart. What -- what is that? A. Yes. If you -- if -- if you look at this small chart here, it's exactly the chart we looked at in the hypothetical example. It's -- it's showing the application of the three reduction percentages. So it's a little bit hard to --------------------- Page 25 follows --------------------- see there, I know, but this first -- we start at a hundred percent, which corresponds to 115 million dollars, and we take 85.3 percent, which is the size of that blue part of the first bar, leaving a -- leaving back about 15 percent. Because from the National Medical Expenditure Survey, we estimate that among people -- among women 35 to64 who have lung cancer or COPD, 85 percent of them are smokers. And then we go to the second reduction percentage. Remember, the second one says what percentage of smokers' disease is attributable to their smoking? So we go again to the National Medical Expenditure Survey and we compare the rates of lung cancer and COPD among women 35 to 64 years old, we compare the rate among the smokers with the never smokers, and we see the difference, and that difference gives us the second reduction, which turned out in this case to be 83.5 percent. So we start with all the dollars, we set aside dollars for non- smokers, and now we've just set aside dollars for smokers that can't be attributed to their smoking that might have occurred anyway. And then we go to the final reduction. Remember the final reduction is what dollar percentage is attributable to lung cancer or COPD that's been caused by smoking? And that's comparing the average expenditures for people, for women 35 to 64 who have these diseases in the Minnesota claims data with women 35 to 64 years old who don't have these diseases, and we find that 78.7 percent of the total expenditures are actually attributable to the disease caused by smoking. --------------------- Page 26 follows --------------------- And that's the final reduction, giving a total reduction of 56 percent. And so we start with 115 million dollars actually expended by the state to treat women 35 to 64 who have lung cancer or COPD, those are the dollars actually expended and recorded in the records, and we take those dollars and we reduce those dollars by - - to 56 percent, or to 64 -- about 64.7 million dollars, and 64.7 are the smoking-attributable expenditures. *11 Q. Would you take us through the other examples. A. Right. So that's for women 35 to 64. But we have three other subgroups of people. If we take the older women, there was a total of 80.5 million dollars expended by the state on women who had lung cancer or COPD, women 65 and older, 80.5 million. And we go through the three reductions. We get the percentage of women 65 and older with this disease who are smokers, turns out to be 93.8 percent, we then get the proportion of those dollars which are attributable to their smoking. Remember, that compares the rate of lung cancer/COPD in women 65 and older, the rate of these diseases in smokers and non-smokers, and we set -- excuse me, in -- in smokers and non- smokers, and we set aside those cases which might have occurred anyway, and then finally we reduce a third time to take only those dollars which are attributable to the disease that they have, and we get a total reduction proportion of 64.5 percent. And so we apply 64.5 percent to the total dollars, 80.5 million dollars, and we get smoking- --------------------- Page 27 follows --------------------- attributable dollars which for this group of women is 51.9 million dollars. And then for the men 35 to 64, 91 million dollars was actually in the claims records for persons who were diagnosed with lung cancer or COPD who were men 35 to 64 with lung cancer or COPD, and there were 91 million dollars in the claims records. We calculate the three reduction percentages, the first two from the National Medical Expenditure Survey, the third from the Minnesota claims data, and we get a total reduction percentage of 45.3 percent. That's the percentage of all the dollars which is attributable to their smoking. And so we -- we put in the smoking- attributable dollars, not all 91 million, but 45 percent of the 91 million, or 41 million dollars. And then finally for men 65 and above, the claims records identified a total of 55.7 million dollars expended to treat persons with lung cancer and COPD who were 65 and older men, and we go through the three reductions and we find that the percent of dollars attributable to their smoking is 58.9 percent. So we don't include all the dollars expended for them, we include 58.9 percent of those dollars, or 32.8 million dollars. And so if you then ask what is the smoking-attributable expenditures for the state to treat Minnesotans who had lung cancer or COPD diagnosis, and the answer to that is 190.8 million dollars, and those are the smoking- attributable expenditures. Q. Now let -- let me ask you about the group of women 35 to 64 that are listed on this exhibit. --------------------- Page 28 follows --------------------- A. Yes. Q. Now the percent of dollars attributable is 56 percent; correct? A. Correct. Q. Now among those women 35 to 64, are there non-smokers? A. Yes. Q. Let's consider the non-smokers. Do you take 56 percent of their costs as smoking-attributable expenditures? A. No. That would be a misleading way to think about what was being done here. What we do is we take all of the dollars or nearly all of the dollars for smokers and none of the dollars for non-smokers, and when -- when you do that, you end up with -- that contributes to getting a rate of 56.0 percent. *12 Q. And you pointed to the first bar chart. A. Yes. Q. Is that the first reduction? A. The first reduction is actually where we set aside the dollars for non- smokers. That's the purpose of the first reduction. Q. Let me ask you this: Suppose that there are women in this group of women 35 to 64 who are smokers and who have lung cancer and cirrhosis of the liver. A. Uh-huh. Q. Assume that cirrhosis of the liver is not caused by smoking. A. Uh-huh. --------------------- Page 29 follows --------------------- Q. Does the core model include as part of its smoking- attributable expenditures 56 percent of this group's treatment costs for cirrhosis? A. No. Again that's misleading. That's -- that's not what it does. What the purpose of the third reduction is, remember, the third reduction set aside dollars for -- for -- expended that had not -- nothing to do with the lung cancer or COPD, so that by using the third reduction we're setting aside those dollars for cirrhosis. Q. Professor Zeger, have you also prepared a core estimate of the expenditures for the state of Minnesota for the other major smoking- attributable diseases? A. Yes. Yes, we have. Q. Let me direct your attention now to Trial Exhibit 30185. Is that the exhibit? A. Yes. Yes, it is. Q. And that sets out the core estimate of expenditures for the state for the rest of the major smoking-attributable disease? A. Yes, it does. Q. And this was prepared by you? A. Yes. MR. HAMLIN: Your Honor, plaintiffs offer Trial Exhibit 30185 for illustrative purposes. --------------------- Page 30 follows --------------------- MR. GARNICK: No objection. THE COURT: Court will receive 30185 for illustrative purposes. BY MR. HAMLIN: Q. I'm now placing the exhibit on the easel. Professor Zeger, the exhibit identifies CHD/stroke. Now what does that signify? A. Remember, yesterday we broke all of the major smoking- attributable diseases into two grouýÿÿÿ