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, RamseyCounty.

YEAR: March 10, 1998

A.M. Session



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



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

(Jury enters the courtroom.)

THE CLERK: Please be seated.

THE COURT: Good morning.

(Collective "Good morning.")

THE COURT: Counsel.

MR. WEBER: Thank you, Your Honor.

Am I on? This says I'm on. How about now? That sounds better. Your Honor, I hope this (referring to easel) isn't blocking communication between us. I think we're okay. But if it gets in the way, if you'd let me know, I'd appreciate it.

THE COURT: Fine.

MR. WEBER: Good morning, ladies and gentlemen.

(Collective "Good morning.")

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

BY MR. WEBER:

Q. Good morning, professor.

A. Good morning, Mr. Weber.

Q. Professor, my name is Bob Weber. I'm going to ask you some questions

about some of the issues you discussed over the past few days, but before I

begin, I just want to say if there's any question that I ask that you don't

understand or that doesn't make sense, please just let me know and I'll try

to rephrase it. All right?

A. Okay.

Q. Now you completed your Ph.D. in 1980 and then came here to the

University of Minnesota?

A. Yes. I completed my Ph.D. in July of 1980 and finished up some

research work I was doing in the department of communications, and started

here in November of 1980.

Q. And you --

A. So that was my first winter.

Q. And you have not been a full-time employee of a private business;

have you, ma'am?

A. I have been a full-time employee of a private business while I was in

school, so during my summer times I -- I worked in businesses.

Q. But since you've got your degree, you have not been a full-time

employee of a private business; correct?

A. Since I've gotten my degree, I've been a full-time employee of the

University of Minnesota, which increasingly is like a private business, but

it is a public institution.

Q. And you've not been responsible for developing or effectuating any

marketing and advertising plans for private businesses that sell consumer

products; have you, professor?

A. Well, what I've been responsible for is, as I explained on Friday,

the design, the development, the implementation and evaluation of

large-scale community-wide programs for youth and adolescents. In fact, the

kind of work I do is often referred to as social marketing because we are

marketing a kind of social behavior as opposed to a commercial behavior or

commercial product, so the kinds of activities that go on in the private

sector around marketing and are quite similar to the kinds of things that I

have been doing for the last 20 or so years.

*2 Q. Is the answer to my question, then, no, professor?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer it.

A. My -- my experience over the last 20 years has been to develop,

implement, and evaluate large-scale community-wide programs for children

that involves some of the same principles as in marketing.

Q. Is the answer to my question no, that you have not been responsible

for developing and effectuating marketing or advertising plans for private

businesses that sell consumer products?

A. I've been responsible for developing, implementing, and evaluating

programs for children and adolescent behavior in our community.

MR. WEBER: Your Honor, may I ask the court to instruct the witness to

answer the question?

MS. WALBURN: I object to that request, Your Honor. The question has been

asked and answered at this point.

THE COURT: You can ask it again if you wish.

MR. WEBER: Okay.

Q. Let me ask it again: Is it correct, Professor Perry, that you have

not been responsible for the development or effectuation of advertising or

marketing plans for private businesses that sell consumer products?

A. I've been responsible for programs in the public domain and have not

done this for a private business.

Q. Now is it also true that the only area of advertising and marketing

that you have studied extensively with respect to private business is

cigarette advertising?

A. Yes, my particular area of expertise. Because smoking is the number

one cause of preventable disease and death and because I'm interested in

public health, the main area I've been interested in is cigarette

advertising and promotion and its effects on adolescent behavior.

Q. And you have done no extensive study of any other private advertising

issues; correct?

A. I have done some -- some investigations similar to where I was in

cigarette advertising, perhaps 15 years ago, in the area of alcohol, but

that's kind of where -- alcohol use in adolescence. But I would say my

primary area of -- of research in the area of advertising and promotion has

been specifically around its effects on youth smoking behavior.

Q. Now your CV lists a number of academic publications, an extensive

list, but is it true that you have never published in a peer-reviewed

journal in the fields of advertising or marketing?

A. The journals that I publish in are the journals that relate to

behavioral health, so I would publish in Behavioral Medicine, the Journal of

the American Medical Association, the American Journal of Public Health, and

other journals that relate to smoking behavior among adolescents. And that's

where the bulk of the research is on smoking behavior among adolescents.

It's not in the advertising journals, it's in the journals that are -- are

the ones for -- in my area.

Q. Is it true, professor, that you have never published in a

peer-reviewed journal in the fields of advertising or marketing?

A. The journals that I publish in often publish articles on advertising

and its effects on youth -- on smoking behavior, it may be adult or youth,

so that it clearly is the kind of journals that are interested in this

relationship between cigarette smoking and advertising or other aspects of

public health and advertising.

*3 Q. Is the answer to my question no, you have never published in a

peer-reviewed journal in the field of marketing or advertising?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer that.

A. I would consider the kinds of journals that I published in having an

interest in and publishing research that would be considered advertising

research.

Q. But the question is: Have you published in peer- reviewed journals

that are devoted to the fields of advertising or marketing?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer that.

A. The journals that I publish in, such as the American Journal of

Public Health, and certainly you've heard quite bit about the Journal of the

American Medical Association, spend a great deal of their time on the issue

of advertising and promotion and its effects on people's behavior. So in

that sense, those are highly regarded peer-reviewed journals that deal with

this subject of advertising and promotion. So I would say in that sense,

yes, I have published in those journals.

Q. Is the American Journal of Public Health and the Journal of the

American Medical Association, are either of those peer-reviewed journals

that are devoted exclusively to the analysis of scholarly study in the

fields of advertising or marketing?

A. Both of those journals are devoted to the improvement of the health

of people, not just in the U.S., but globally.

Q. Is the answer to my question then no, they are not devoted

exclusively to the scholarly study of issues in marketing and advertising?

A. To the extent that advertising and promotion affect the health of --

of the American public, they are devoted to those issues.

Q. My question, though, professor, was whether the American Journal of

Public Health or the Journal of the American Medical Association were peer-

reviewed journals devoted exclusively to the scholarly study of issues in

marketing and advertising. Can you answer that?

A. I can answer that. The American Journal of Public Health and the

Journal of the American Medical Association are, in part, devoted to -- to

issues of advertising and promotion. They are not exclusively involved with

that because there are other issues that concern the health of Americans.

Q. Now there are journals that are devoted to the scholarly study of

advertising and marketing; are there not?

A. I would imagine there are, such as the Journal of Marketing that I

cited during the -- during yesterday's testimony.

Q. Right. And indeed, journals such as the Journal of Advertising, the

Journal of Marketing, the International Journal of Advertising, journals

like that, of that type, are respected journals in the area that you cited

in the Surgeon General's report; correct?

A. They're respected journals having to do with advertising, but they

deal with the broad area of advertising and in general spend a very little

bit of their time devoted to the relationship between cigarette advertising

and promotion and adolescent behavior. So the number of articles devoted to

that is relatively small compared to what you would find in the public

health or medical literature.

*4 Q. I'm --

My question may not have been clear. What -- what I asked is you have

cited in the Surgeon General's report research from the Journal of

Advertising, the Journal of Marketing, International Journal of Advertising;

have you not?

A. Yes. We included those particularly in the chapter that we devoted to

advertising and particularly on the history of advertising to the young and

how the tobacco industry was involved in that over the course of the

century, so we used citations from Advertising Age, from the Journal of

Advertising, to -- to make those points.

Q. And indeed, you also cited Advertising Age, as you just said;

correct?

A. Yes, I did cite Advertising Age as -- as a source of information.

Q. And Advertising Age is a reliable source of data and statistics with

respect to advertising; is it not?

A. I'm not sure if it's a reliable source of information. I believe it

is. We used that source in the Surgeon General's report, and I know those

sources were ones that were peer reviewed, as I -- as I mentioned, by 70 or

80 or a hundred people. So --

Q. But at least with respect to statistical analyses, you -- the data

and statistics in Advertising Age were good enough to be included in the

1994 Surgeon General's report when you were looking for statistics on

advertising; correct?

A. Well each article that you look at, you look as to whether it meets

certain peer-review criteria, and some of what we quoted in chapter five of

the Surgeon General's report were things like advertising executives'

comments on particular campaigns, so they were just quotes of comments that

might say how Leo Burnett affected Philip Morris by starting a Marlboro

campaign, and we cited Advertising Age.

Now that I really wouldn't consider data and data analysis, those were

quotes from -- from people that might come through Advertising Age. So I'm a

bit equivocal on how good or how -- you know, how good that particular --

the data is based on what we used in the Surgeon General's report.

Q. Now one of the responsibilities you had as the senior scientific

editor of the 1994 Surgeon General's report was to assure the scientific

integrity of the data and sources that were cited; correct?

A. Yes. I was to ensure that it met peer review. So we went through a

rather laborious process; that is, for each citation we collected from the

authors the front page of that citation so we knew it was a real citation.

Now in areas where it went out for peer review that perhaps weren't my area

of expertise, for example, the effects of cigarette smoking on lung function

among young people, that's not my area of interest, that went out for peer

review. We got, you know, very good responses to Dr. Samet's writings on

that; you know, there were only minor things that needed to be checked out.

So that meant that for -- for those citations, I didn't read each and every

article that went into that. I really relied on my peers and the peer-review

process to -- to ascertain that what was said was -- was the truth.

*5 So in that sense I certainly didn't read each and every article. I

relied on the -- the fact that this is, as I said, a consensus document.

Q. Do you remember having stated that you were responsible for assuring

the scientific integrity of the data included in the report and the validity

of the conclusions arrived at?

MS. WALBURN: Objection to the form of the question. If we can know what

counsel is reading from.

MR. WEBER: Well I think I'm allowed to ask before -- under the rule

before I show her the document, Your Honor.

THE COURT: Well if --

MR. WEBER: I just --

THE COURT: You can't read from the document and then ask the question,

that's not appropriate. If you have a document, I think she's entitled to

it, or if you're referring to her testimony, she's entitled to have that in

front of her.

BY MR. WEBER:

Q. Do you remember giving an affidavit in a case in New York with

respect to signs at Shea Stadium?

A. Yes, I do.

Q. Do you remember stating in that affidavit that you were responsible

for assuring scientific integrity of the data and the conclusions arrived

at?

MS. WALBURN: Can we have the exhibit number for the affidavit, please?

MR. WEBER: That's ASP000005.

Q. And if you'd like --

Do you remember signing -- making that statement in the affidavit?

That's all I'm asking, professor.

A. No, I don't remember.

Q. Okay. Would you look at tab 75 in the binder, see if that refreshes

your recollection. And that's -- it would be paragraph two on page two.

A. This tab 75 says "Camel Performance."

Q. Okay. Well then I've got the wrong tab. Let me --

MR. WEBER: May I approach, Your Honor?

Q. Seventy-six? Would you try 76 for me?

A. That looks more like it.

Q. Okay, thank you.

Could you turn to paragraph two, page two, and could you read the second

sentence of that paragraph. Why don't you read the first two sentences for

me, if you would, please, professor.

A. I'd like just a second --

Q. Okay.

A. -- to take a look --

Q. Certainly.

A. -- at what I wrote.

Yes. I said I was responsible for overseeing the development of the

report and assuring the scientific integrity of the data included in the

report and the validity of the conclusions arrived at. I also said the

preparation took two years and involved a hundred scholars throughout the

world in the writing and scientific review process, and that this was the

first Surgeon General's report in 30 years to focus on young people. And I

think, you know, in --

What I meant by that statement was that by being scientific editor, that

I assured -- I assured that the peer- review process had worked, that the

peer-review process was in place and that the conclusions arrived at had

validity. It did not mean that every single sentence in the Surgeon

General's report was something that I personally could back up.

Q. Well what you -- what you said was the buck stopped with you. You

were responsible for assuring the scientific integrity of the data and the

validity of the conclusions; correct?

*6 A. No, the buck did not stop with me; that's why this is a consensus

document. I was responsible for putting this report together, and -- and, in

fact, given that there were topics like the health consequences or like

addiction that really are not my areas of expertise, I needed to rely on the

peer-review process. Not only that, but, as I explained on Friday, I had to

go back and forth between lots of -- lots of scientists, actually flying to

them and flying back, to make sure that what they took -- to rectify if

there were any -- any disputes.

But after me, after me and my analysis of this, it went through 36

people, the senior scientists who reviewed it, and then after that it went

through government layers, it went through the Office on Smoking and Health,

the entire office, it went through CDC, it went through all of NIH, that

means the National Cancer Institute, the National Institute on Drug Abuse,

then it went to Health and Human Services, and finally really the buck

stopped at the top level, it's the -- that it is a report of the Surgeon

General.

So I was a facilitator of this process, and it was a big process, but I

was a facilitator of a consensus document.

Q. But just to summarize -- well strike that.

But what you did say in this affidavit was that you were responsible for

assuring the scientific integrity of the data included in the report and the

validity of the conclusions. Did you not state that under oath in this

affidavit?

A. I stated that within what I believed to be my duties, and my duties

were to work with peer review and to ensure that that process took place.

This is how science works.

If a -- if a paper gets into JAMA, the editor of JAMA is - - just needs

to make sure that this scientific process works, that peer review has taken

place and -- and the peers agree that this is of scientific merit.

Q. So is the answer to my question yes, that is the language in your

affidavit?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer that.

A. My answer is -- is that I was reflecting what I had done and how I

interpreted that, that what I meant when I said "assuring the scientific

integrity of the data" was that I was a facilitator for making sure the

peer- review process worked and that this was the best consensus document we

could come up with in 1994.

Q. So the answer is yes, that language that I said in my last question

is the language you used in your affidavit?

A. My answer is is that the language I used reflected to me the process

that I used as senior scientific editor, that I was a facilitator of the

peer- review process.

Q. Was that the language that I said in two questions ago, that was the

language that was in your affidavit; correct?

A. The language can't be taken out of context. The context is the

Surgeon General's report. The Surgeon General's report has a particular

process, it's not -- I didn't write a book by myself with every piece of

data with me attributing that data to my statement. This -- this statement

reflects my role in the Surgeon General's report, and I don't think it

should be taken out of that context.

*7 Q. Well, in that whole paragraph two you don't use the word

"facilitator" anywhere; do you?

A. I didn't feel I needed to. Surgeon General's reports are always

written in this way. I wasn't in a unique role. And Dr. Samet was senior

scientific editor, he went through the same two-year process. And in fact

there had been no Surgeon General's report since 1994, and here it is

already 1998, because the review process for the last three Surgeon

General's reports that are in the works are still going through this

rigorous peer- review and review process.

Q. Did you use the word facilitator in paragraph two, professor?

A. I didn't feel the need to use the word facilitator in paragraph two

because that is inherent to the role of senior scientific editor of the

Surgeon General's report.

Q. Does that mean you did not use the word facilitator in paragraph two?

A. I did not see a need to use the word facilitator in the -- in this

affidavit.

Q. And the word isn't in there; correct?

A. I did not see the need to use the word facilitator.

Q. And what is in there is that you were responsible for assuring the

scientific integrity of the data in the report; correct?

A. What was in there --

Q. That's -- that's a direct quote; isn't it?

I'm sorry. Let me strike the question and ask again. I'm sorry to

interrupt.

That's a direct quote from that affidavit, that you were responsible for

assuring the scientific integrity of the data; correct?

MS. WALBURN: Objection, asked and answered. I believe this entire

paragraph two has already been read into the record.

THE COURT: Okay. I think at this point it's been asked and answered.

MR. WEBER: Okay.

BY MR. WEBER:

Q. Now, your current faculty position is in the division of

epidemiology?

A. Yes, it is.

Q. And you're trained in analyzing population studies with multiple

factors and variables. You've done that in your professional work?

A. My training is in a variety of -- of areas, as is the field of public

health. Public health is increasingly multi- disciplinary because the

problems of public health require scientists who can select data, who can

analyze data, who can develop programs, who can see if those programs work,

who can even be involved in legal processes.

Q. So you are trained in analyzing population studies with multiple

factors and variables; isn't that true?

A. Part of my training is in -- in analysis of data of large

populations. My primary interest is in looking at the effects of educational

programs or at -- or what we call intervention programs. And within that, my

primary interest is in the design and development of those educational and

intervention programs.

Q. Now as one employed at the division of epidemiology, you understand

the difference between the words "risk factor" and "cause;" do you not,

professor?

A. Well it's in -- it's in a --

It's always debated.

Q. But at least the epidemiologic textbooks used at the University of

Minnesota to train people differentiate between risk factor and cause; do

they not?

*8 A. Well risk factors are needed to come up with a causal argument.

You need -- it has to be --

Something has to be a risk factor for something else in order for it to

be causal. It's not enough to be just a risk factor, but needs to be -- it's

sufficient but not necessary.

Q. So --

And I think that's the -- the distinction in the definition I was -- was

asking about. A risk factor may or may not be a cause, it is an association

with something else; correct?

A. It's not necessarily an association, which generally refers to

something the same as in time. Cause has a temporal relationship to it. So,

for example, if you have a cigarette advertising and promotion campaign, and

following it youth smoking increases, that's a temporal relationship. So

that cigarette advertising and promotion is a risk factor for that, but it

may also cause that because there's a temporal relationship involved.

Q. But the use of the word "risk factor" does not in and of itself mean

cause; correct? Many things can be risk factors that science doesn't know

are causal yet; correct?

A. Yes. Many things can be risk factors, and you need a rather large

look at the available literature to then come to a causal argument.

Q. Now in the 1994 Surgeon General's report, advertising and promotion

of cigarettes was classified as a risk factor for smoking initiation; was it

not?

A. Cigarette advertising and promotion was said to affect the

perceptions that adolescents had about smoking, the image, and the function

of smoking, which in turn would affect their smoking behavior.

Q. Was the answer -- is the -- let --

Let me ask it again. In the 1994 Surgeon General's report, the

advertising of cigarettes was classified as a risk factor for smoking

initiation; was it not, professor?

A. Well it wasn't --

It was not only -- it was not only categorized as a risk factor, it was

also seen as a direct influence on -- on teen-age smoking behavior in this

way: Cigarette advertising and promotions would affect image, function and

pervasiveness, perceptions of pervasiveness, which in turn affect youth

smoking behavior.

Q. Was it classified as a risk factor in the 1994 report or not,

professor?

MS. WALBURN: Objection, asked and answered.

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

Q. Could you turn to page 123 of the 1994 Surgeon General's report,

professor. Do you have it there?

A. I do.

Q. And would you agree with me that Table 1 on page 123 is labeled

"Psychosocial risk factors in the initiation of tobacco use among

adolescents?"

A. Yes. This -- this table, as I explained, was a summary of the

research I had done in this chapter. My part of the chapter was on smoking,

and someone else actually did the part on smokeless tobacco. So we listed

what we called were -- what we called were risk factors and put little X's

by those that were risk factors for smoking.

Q. So that's a list of risk factors; correct?

A. It is a list of risk factors. Not all of them are risk factors. And

of course -- because that's the difference in the little X's. And not all of

them are strong risk factors. So that there is a difference statistically

between what is a weak risk factor and a -- and a stronger risk factor.

*9 For example, as I mentioned, we took advertising completely out of

this chapter and devoted an entire chapter to it because we felt it was so

important and because advertising affects so many of these risk factors,

which in turn affects smoking. Like we saw yesterday that advertising

affects peer use, it affects their normative expectations, how many of their

peers they think are smoking, it affects their meanings.

Q. Well you didn't take advertising totally out of that chapter because

you listed it as a risk factor; correct? Right there in Table 1 on page 123

under "Environmental Factors," the second one listed; correct? So it is in

that chapter and it's listed as a risk factor. Can we agree on that?

A. Well we may have used the word "advertising" even a couple places in

this -- in this chapter, but we also did the -- really did our discussion of

advertising in chapter five. So this --

So yes, we listed it because we felt it was an important factor in

influencing young people to smoke.

Q. Now isn't it true that in the entire 300 or so pages of the 1994

Surgeon General's report, it was never once stated that advertising was a

cause of smoking initiation?

A. No, I wouldn't agree with that, and I'll tell you why. If you look at

the fifth major conclusion to the Surgeon General's report, or if -- even if

we looked at the end of chapter five, if you'd like to take a look at page

195, and yesterday I -- I read these conclusions for the jury, and the last

one in particular, we as a group felt at this point that this meant causal.

"Cigarette advertising appeared to affect young people's perceptions of the

pervasiveness, image and function of smoking. Since misperception in these

areas constitute psychosocial risk factors for the initiation of smoking,

cigarette advertising appears to increase young people's risk of smoking."

What we meant by that was that cigarette advertising and promotional

activities affect pervasiveness, image and function - - that's what we had

gotten from the literature at that point -- and they in turn affected youth

smoking. Now, we did not use the word "causal." We did not use the word

"causal." But, as we read yesterday on page 188, we said, "This lack of

definitive literature does not imply that a causal relationship does not

exist." Rather, we needed more research and we wanted to take a look at

industry documents. So we felt as a group that in fact it was causal. We

were seeing that cigarette advertising and promotion affect these risk

factors, which in turn affect youth smoking. We weren't ready to make that

causal statement, but we didn't rule it out either.

And since the Surgeon General's report we have had a large quantity of

new research, and through this case we've been able to look at hundreds of

documents. I have.

Q. But in terms of the 1994 Surgeon General's report, as you just said,

we weren't ready to make the causal judgment; right?

A. No, not the causal judgment. I think you're misstating what I said.

We felt that there was a causal relationship that cigarette advertising and

promotion affects image, function and pervasiveness, which in turn affects

youth smoking. That is causal, that is a causal link. One leading to the

other leading to the other, that is a causal link. But we didn't want to say

this causes, the actual word "causes," because we felt we needed more data.

And we have that data now.

*10 Q. Now did you not just say in that last answer, quote, We weren't

ready to make that causal statement, but we didn't rule it out either,

unquote?

A. Did I say that?

Q. Do you remember saying that a minute ago?

A. I believe I -- if you -- if you wrote it down -- we --

Q. I'm not writing it. Just so you understand, professor, there's a --

A. Oh, there's a monitor.

Q. -- there's a realtime printout.

A. Oh, I see.

Q. I'm trying to write some things and read others. So --

A. Yeah. I don't get to do that.

Q. But you do remember saying that just a minute ago; don't you?

A. Well what I -- what I remember thinking was that as a group we felt

there was a causal link, so as a group we felt that, but we weren't ready to

publicly use that word "causal," which is a very powerful word, and --

because we wanted more data. And we wanted -- and we got that data through

lots of research studies which have only emerged in the 1990s, and through

the documents which we reviewed yesterday and throughout this case.

Q. "But as of the time of this report, the people who wrote this report

classified advertising as a risk factor, and we're not ready to make the

causal statement;" correct?

A. No. The people who wrote this report felt there was a causal linkage.

I talked with them. These are my colleagues. We were not ready to publicly

say there was a causal link because this is a conservative document. It

represents the science of the fields and it's not an advocacy piece. We were

very careful. We also said we did not rule out causality. We said -- we

didn't say, well, there's no causal relationship. We didn't -- we didn't say

that. We said cigarette advertising and promotion affects these factors,

which in turn affect youth behavior, which means causal.

Q. Now on Friday you said that this document represented the best

science at the time; correct? Remember that?

A. Yes, I do. And I'd like to clarify that the time, quote, unquote,

time, was not really 1994, the time is really about 1992, because that's

when we wrote the pieces of the report. And remember, I went through my long

talk about how long it took to do this. So there are only a few references

in the Surgeon General's report even from 1993. So we have five or six years

more of -- of data.

And a consensus document means that the scientists thought it was the

best science of -- of that time.

Q. So based on the best science that was available then, the authors of

the report were not ready to publicly state that advertising was a cause of

smoking initiation; correct? Is that a fair summary?

A. No.

Q. Did you --

A. The --

Q. Well let me ask --

THE COURT: Counsel, --

MR. WEBER: I'm sorry.

THE COURT: -- don't interrupt the witness.

MR. WEBER: All right.

A. Can you repeat that question again?

Q. Well let me withdraw it and make -- see if I can make it clearer.

(Discussion off the record.)

BY MR. WEBER:

*11 Q. At least as of the time of the '94 report, the scientists who

worked on it were not ready to publicly state in this document that

advertising was a cause of smoking initiation. Isn't that what you just

said?

A. The document states that advertising and promotion affects

pervasiveness, image and function, which in turn affect youth smoking. That

is a causal link. We did not use the actual word "causal" because we wanted

more data. The scientists agreed at that time that it was causal but did not

want that included in this report, nor did we want to rule it out. We made

that very explicit, because we wanted more data. And, of course, we have

that data now.

Q. So you were not ready to publicly state it was causal in this report;

correct?

MS. WALBURN: Objection, asked and answered.

THE COURT: I think we've kind of covered it, counsel. Let's move on.

BY MR. WEBER:

Q. Now indeed, didn't the Surgeon General herself say the whole question

of debate over cause was a misguided debate in this very document?

A. If you can direct me to that page.

Q. Sure. It's small iii in the preface.

A. The Surgeon General said -- and this is not peer reviewed, I might

say. This is -- this part of the report is Dr. Elders' opinion --

Q. Could --

Professor, could I -- could you focus on 1, 2, 3 -- fourth paragraph

down.

A. Yes, I was going to focus on that.

Q. Okay. And could you read that --

A. I --

Q. -- as the Surgeon General's opinion at that time.

A. "A misguided debate has arisen about whether tobacco promotion

'causes' young people to smoke -- misguided because single-source causation

is probably too simple for an explanation for any social phenomenon. The

more important issue is what effect tobacco promotion might have. Current

research suggests that pervasive tobacco promotion has two major effects: it

creates the perception that more people smoke than actually do, and provides

a conduit between actual self-image and ideal self- image -- in other words,

smoking is made to look cool. Whether causal or not, these effects foster

the uptake of smoking, initiating for many a dismal and relentless chain of

events."

Q. All right. Now, so what the Surgeon General said was that it was a

misguided debate about cause; correct?

A. I don't think that's what she said.

Q. Okay.

A. She said --

Q. Did she --

A. She --

Please let me finish, Mr. Weber.

Q. Your Honor --

A. She said that the current research suggests that this pervasive

tobacco promotion did have effects, the effects we've just been talking

about, and she said whether causal or not; that is, whether we cause --

whether it's causal or not, these effects foster the uptake of smoking. I

think those are very strong causal statements on her part.

Q. Did she say it was a misguided debate about whether tobacco promotion

caused young people to smoke?

A. She was saying why are we debating this issue?

Q. That was her language though; correct?

*12 A. She was saying why are we even debating this? It's so obvious.

Q. It was so obvious, but the word "cause" wasn't used publicly in the

report; was it?

A. It's so obvious that she said whether causal or not, these affect --

tobacco advertising and promotion -- these affect, foster the uptake of

smoking, initiating for many a dismal and relentless chain of events. Dismal

and relentless. These young people become addicted to smoking, become

smoking -- become -- and become smokers. That's what she's talking about.

And she's talking about the conduct of the tobacco industry in this.

Q. Now, she also said the more important issue is what effect tobacco

promotion might have; correct?

A. She said, yeah, that's -- what is it? What -- what it might have --

And she says look at the current research, look at what we already know

about it. We already know that it affects perceptions of the pervasiveness

of smoking, that it affects people with low self-image. She already showed

that there were some chain of events between tobacco advertising and

promotion, these effects, and the uptake of smoking, and she said these

effects foster the uptake of smoking.

Q. And she said whether causal or not, and then she went on to talk

about what effects it might have; correct?

A. She was saying let's not even worry about the words, let's look at

what's really going on here, and what's really going on here is that

advertising and promotion is affecting kids and they're starting to smoke.

Q. Now the reason she said the issue of cause was a misguided debate is

because, in her judgment, single-source causation was too simple an

explanation for any social phenomenon. Isn't that the reason she said that?

A. No. I think she -- she said that --

Well, in fact single-source causation is probably too simple for -- for

an explanation. But I think she was also saying let's not focus in on this

debate about causal, let's focus in on what tobacco advertising and

promotion does do. And what it does do, even in 1992 when we were writing

this, it says it affects pervasiveness of it and the self-image of young

people, which in turn affects the uptake of smoking, initiating for many a

dismal and relentless chain of events. So I think she's very clear about

what she thinks is going on in terms of tobacco advertising and promotion.

Q. Did she say a misguided debate has arisen about whether tobacco

promotion causes young people to smoke, misguided because single-source

causation is probably too simple an explanation for any social phenomenon?

A. I don't think we're talking about single-source causation in this --

in this trial. We're talking about the effects of the tobacco companies'

behavior. We're -- we're talking about their behavior and how they -- their

activities affect young people.

Q. Is the answer to my question yes, she said that?

A. I think I've given you the answer to your question now five or six

times.

Q. Well actually I just asked that one. Is that what the Surgeon General

said, a misguided debate has arisen about whether tobacco promotion causes

young people to smoke, misguided because single-source causation is probably

too simple an explanation for any social phenomenon, did she say that?

*13 MS. WALBURN: Objection, asked and answered.

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

Q. Now you would agree, as you just said, that you're not talking about

single-source causation here; correct?

A. We're not talking about single-source causation for why young people

begin to smoke, but we are talking about the -- the -- the behavior of the

tobacco industry and, as we saw yesterday, document after document showing

that the tobacco industry realizes the importance of youth, planned

campaigns against youth, targeted youth, and got youth to start smoking.

Q. Now did you not say a moment ago, professor, that we're not talking

about single-source causation on this issue of what causes youth to smoke?

A. Yes, I said that there are -- there may be more than one cause.

Q. And indeed, the 1994 Surgeon General's report in the chapter you were

primarily responsible for went through a wide variety of psychosocial risk

factors that have been associated with smoking initiation; didn't it?

A. In the chapter that I wrote, we went through a large number. Very few

of them were really very strongly predictive of smoking onset, there were

only a handful, and nowhere in that chapter did we talk about -- nowhere in

the chapter that I can remember did we talk about any of these risk factors

causing the onset of smoking.

Q. Right. You didn't use the word "cause" for any of the risk factors in

the '94 report; correct?

A. Well we used the word "cause" when we were talking about the tobacco

advertising and promotion. We used this specifically in chapter five. We

said we weren't ruling out cause. It was the only risk factor, it was the

only factor in which we even considered cause, and we said we weren't ruling

it out; that tobacco advertising and promotion were affecting a variety of

risk factors which in turn were affecting the smoking behavior of young

people.

Q. Would you agree with me, professor, that with respect to all of the

risk factors in the 1994 report, there was not one which the report said was

a cause of smoking initiation, using the word "cause?" Not one?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer that.

A. The only time that I can remember, because I haven't memorized the

report, that we used the word "cause" was in chapter five when we were --

when we were talking about cigarette advertising and promotion, and we said

we could not rule out cause, we could not rule out cause. And then we said

tobacco advertising and promotion affects these factors, which in turn

affect youth smoking behavior. That's a causal link.

We did not, as I said before, use the exact word "causal" because there

were limitations to this report. We needed more data, which I shared with

you yesterday, and we wanted to have -- to be able to look at some of the

industry documents. And now in this case we've looked at hundreds of

documents.

Q. So the answer is no, that this '94 report did not use the word

"cause" with respect to any of the risk factors identified in the sense of

concluding that that risk factor caused smoking; is that correct?

*14 A. As I said, in chapter five we focused on cigarette advertising

and promotion and we used the word "cause" in that chapter. We said we

weren't ruling out cause. And we presented a causal argument that tobacco

advertising and promotion causes this sense of pervasiveness, creates an

image that kids like that affects the -- the functions, those developmental

tasks that we spent a lot of time talking about yesterday, and those in turn

cause young people to start smoking. So we presented a causal argument but

did not publicly say causal. But we were very explicit in saying, in only

that chapter and only talking about advertising, that we were not ruling out

causal.

Q. So you did not say that any of the risk factors were in fact causal;

correct?

MS. WALBURN: Objection, asked and answered.

THE COURT: I think we've covered it.

Q. Now, could you turn to page 130 of the '94 report, professor. Do you

have that there?

A. Yes, I do.

Q. And do you see table three, which is a table that the report adapted

from the Conrad and Flay study?

A. Yes, I see that.

Q. And that was a table of predictors of smoking onset in 27 prospective

studies?

A. Yes, it was.

Q. And what Conrad, Flay and Hill did was they summarized the findings

of 27 prospective studies on the onset of smoking that had been published

since 1980; correct? If you look up in that paragraph on the -- first

sentence in the paragraph on the left.

A. Yes. I reviewed Conrad, Flay and Hill quite extensively, and I'd like

to point out that the data, the sources for these 27 studies, the absolute

latest study, which is shown on page 125, is 1990, and those studies in fact

were done in the Netherlands and in England. So that although in 1992, when

we were writing the Surgeon General's report, this was an important

document, it really reflects old data, it's data from the '80s, so it

doesn't reflect all of that new research that I -- I spoke to yesterday.

Q. Now the list that was prepared from Conrad, Flay and Hill and that

was published in the Surgeon General report listed predictors of smoking

onset; correct, from 27 separate studies?

A. Yes. These were studies that were done over time. But the time period

could be very short, it could be three months, six months, they also went to

a few years. So they were prospective studies in that sense.

Q. And not one of the predictors listed here of smoking onset was

advertising or promotion; correct?

A. Well they looked at that, but in fact in that psychosocial literature

there had only been at -- as of in the late '80s, I believe, about five

studies had been published which did show -- at least one showing

prediction.

As I said yesterday, really the bulk of the research has been published

in the 1990s and so couldn't be reflected --

This is really a rather old document.

Q. Okay. I'm -- I'm not asking you now, professor, about whether the '94

report included information published afterwards. I just want to ask you

about what was in the '94 report.

*15 A. Yes.

Q. So let me make my --

I just hope that makes my question clear.

A. And I'm -- and I'm trying to explain to the jury that they might be

looking at -- at old -- at old data that's not reflective of -- it doesn't

represent what we know now. So --

Q. So it -- I'm sorry. Are you --

Were you finished?

A. Yes, I was.

Q. Okay. So it's true, is it not, that out of the 27 studies looked at

by Conrad, Flay and Hill and summarized in this chart in the chapter you

were responsible for, advertising and promotion are not listed as predictors

of smoking onset; is that true?

A. In his research he only looked at, I believe, two -- one study, I

think, one or two studies in which there wasn't a negative finding, there

was no positive finding from the 1980s which -- cso that wasn't included in

it.

However, if we can remember from yesterday, that advertising and

promotion affect many of these factors listed here. Peer use, we saw how the

tobacco companies targeted peers, and you can see that, peer use and

approval, that 84 percent of the studies showed that peer use and approval

was a predictive factor. Normative estimate, well that means exactly what I

was talking about yesterday when I shared with you how we asked students in

the classroom how many of their peers smoke, the -- the perception of

prevalence, that's what normative estimates mean, we showed that cigarette

advertising and promotion is -- affects normative estimates. And we -- we

also know that it affects certain attitudes which in turn affects smoking

behavior.

So even though in the 1980s there wasn't much research on cigarette

advertising and promotion and its effect on youth behavior, we're already

being able to see how it would work. And the tobacco companies could see how

it would work, too. They had -- they had the Surgeon General's report. They

know what they can target in terms of youth smoking.

Q. Finished?

MR. WEBER: Your Honor, I'd move to strike the answer. The question was

whether advertising was listed as a predictor in the chart in the Surgeon

General's report. I'd move to strike the entire answer.

THE COURT: Well I'll let the answer stand, but you can ask the question

again, if you want, after we take a break.

MR. WEBER: Okay. Thank you, Your Honor.

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.

THE COURT: Counsel.

MR. WEBER: Thank you, Your Honor.

BY MR. WEBER:

Q. Professor, do you recollect before we took our break I asked you a

question about whether the 1994 Surgeon General's report classified

advertising as a risk factor or as something else, and you said, quote, "It

was not only -- it was not only categorized as a risk factor, it was also

seen as a direct influence on teen-age smoking behavior." Do you remember

saying that?

A. Yes, I do.

Q. And that -- that is what the --

*16 A direct influence; correct?

A. Yes, direct influence.

Q. Now the fact of the matter is that in the very chapter you wrote, the

Surgeon General's report said it only indirectly affected youth smoking;

didn't it?

A. I'd have to see that, where it's said.

Q. Could you turn to page 123 of the Surgeon General's report, and could

you read the paragraph -- or the first three sentences that begin

"Psychosocial risk factors...," professor.

A. "Psychosocial risk factors for tobacco use can be viewed as a

continuum of proximal to distal factors. Personal and behavioral factors

that directly affect an individual's choice to use tobacco (when a cigarette

is offered) are considered proximal factors, whereas environmental and

sociodemographic factors (such as billboard advertising and household

income) that indirectly affect the accessibility or acceptability of tobacco

use are classified as distal factors."

Q. Now --

And it said the environmental factors there were would cause indirect

effects in that sentence; correct? Is that what that said?

A. Well it doesn't include what we came to the conclusion of. This is at

the beginning of chapter four where I'm trying to introduce, really, the

idea of proximal and distal.

When I said direct, was a direct effect, what I'm referring to is going

back to what I said before, that what we found in chapter five was that

cigarette advertising and promotion affected the image, the image young

people had, perceptions of pervasiveness and the function, which in turn

affect their smoking behavior, and I consider that direct, that that's a

direct effect. So when I said direct, that's what I meant.

Now this kind of effect can also occur indirectly, it can occur through

other kinds of sources, but in the case of chapter five where we have data

that links cigarette advertising and promotion to these factors which in

turn affect youth smoking behavior, that is a direct chain of events.

Q. Now in this paragraph you just read, it classifies environmental

factors as indirectly affecting; correct? Is that what it says?

A. Well that doesn't mean that all environmental factors indirectly

affect people. As I explained yesterday, that that outer ring can directly

affect people, and so I didn't mean in this that all environmental factors

affect. These were examples that might be -- that might be indirect.

Q. But it does say the environmental factors indirectly affect; correct?

A. I said, for example, they might, that some environmental factors. I

didn't say all environmental factors indirectly affect.

Q. And right across from that quote, if you'll see, you listed

environmental factors; correct?

A. Yes, there's a -- a set of environmental factors, of which the

strongest ones, peer use and advertising, directly affect youth smoking

behavior.

Q. So you meant to say there that advertising directly affected youth

smoking behavior; is that what that chart indicates?

A. This chart was for chapter four in which we were referring to

particular factors as risk factors, and I was trying to talk about the

difference between proximal and distal, which is a very different idea in

social psychology than from what it is in law, as I understand. So that that

was really -- these were examples that I -- that I was using.

*17 It's very clear that environmental factors can directly influence

people's behavior.

Q. That's not what that subparagraph says, though; is it, ma'am? It says

environmental factors indirectly affect.

A. These were examples that I was using in this introduction.

Q. And one of the examples you chose as an environmental factor was

advertising; right?

A. One of the examples I chose was billboards. I didn't talk about all

of the different kinds of cigarette advertising, and I certainly didn't talk

about the promotional activities which we saw yesterday were very

influential in -- in getting kids to start smoking.

Q. But advertising was listed as an environmental factor in the chart

right to the right of that paragraph; correct? Isn't that right?

A. Well yes, it was listed in the chart, and then we took it out and

created an entire new chapter about that.

Q. Now let me go back to that Conrad article we were talking about a

moment ago. You remember that, professor? On page 130. Are you there?

A. Yes, I am.

Q. Okay. And you said that you thought there were one or two studies

that Conrad had looked at that specifically examined the issue of whether

advertising could be identified as a risk factor for initiation. Remember

that?

A. As a predictive --

He was looking at predictive --

Q. Predictive.

A. -- factors. Yes, I think he looked at two studies, one or two

studies.

Q. And -- and in fact he did look at two studies, and they both

concluded that exposure to advertising or promotion was not predictive;

correct?

A. He found no influence in that study.

But please be reminded that this Conrad, Flay and Hill article

represents old data. The -- there's 27 studies. The two old -- the two

oldest studies are in 1990. Nine of the 27 studies, a third of the studies,

aren't even -- weren't even done in the United States, so they were done in

-- in other countries, which might affect different kind of relationships.

So -- so that's what he reported. But this is old data.

Q. But you relied on the Conrad article including the data from other

countries; correct?

A. I relied on it in part. As you, I'm sure, read this -- this chapter,

there were -- I used -- this is only one article, and since I spent, I

think, two months reading articles, this is only one that I relied on.

Q. Yeah. Without saying it's the entirety, it was a piece of what you

relied on, and it included international data; correct?

A. It's a piece of what I relied on, and -- and it did include nine

studies on -- on youth smoking.

Q. And do you remember the statement in the Conrad article -- I -- I can

give you a page reference if you'd like -- that longitudinal studies,

prospective studies can't prove cause, and that's why he said we use the

word predictor? Do you remember that in there?

MS. WALBURN: Could we have the exhibit number and the page number,

please?

MR. WEBER: Surely. That's Exhibit AM002661.

Q. And professor, I think you'll find that at tab 15 in the volumes that

are marked with number tabs.

*18 A. And which page were you on?

Q. It's page 1712, in the middle.

A. This doesn't turn very well.

Q. Can you --

A. Excuse me. What tab is it again?

Q. Tab 15, ma'am.

A. And page?

Q. Page 1712, the second full paragraph.

A. Yes.

Q. And did the authors of this say, "Because even the longitudinal

method does not provide proof of causation, we refer to variables measured

at one time that relate to smoking behavior at a subsequent time as

predictors rather than causes?"

MS. WALBURN: Objection to the form of the question. If counsel is going

to be reading from the document, I think it should be introduced into

evidence.

THE COURT: Okay. Are you going to be introducing this document, counsel?

MR. WEBER: Oh, I was -- I --

I certainly can, Your Honor. I was just going to see if she remembered

if it was one of her reliance materials and not necessarily introduce it,

but if --

THE COURT: You don't have to if you don't want.

MR. WEBER: I'm -- I'm sorry?

THE COURT: You need -- you don't have to if you don't want to.

MR. WEBER: Okay. Let -- maybe I'll see what the answer is.

THE COURT: Okay. Depending on the answer?

(Laughter.)

THE COURT: Go ahead.

BY MR. WEBER:

Q. Is that what the article said?

A. Well the article said that you can't just rely on longitudinal data

to establish causation. I think that Dr. Samet introduced to you the five

criteria that scientists in -- in medicine and in public health and

epidemiology use for causation, and temporality, that is, does a factor at

point one1 predict behavior at point two, is only one of those. So that's

what he was looking at in these 27, was only one of the five criteria for

causality. And so he -- he decided that he would -- or they, there's three

authors, decided that they were not going to use the term "causality."

MR. WEBER: Your Honor, I'd move the admission as a learned treatise of

Exhibit AM002661.

MS. WALBURN: No objection.

THE COURT: The court will receive AM00261.

MR. WEBER: 26 -- I think it's 2661. Did I mishear you, Your Honor?

THE COURT: Okay. It's AM002661.

MR. WEBER: Yes.

THE COURT: Correct? That's what will be received.

BY MR. WEBER:

Q. Now -- and this is --

That language right there, "Because even the longitudinal method does

not provide proof of causation, we refer to variables measured at one time

that relate to smoking behavior at a subsequent time as predictors rather

than causes," and that was the language from the Conrad article; correct?

A. Yes. That is Conrad, Flay and Hill's opinion of what term causation

--

And certainly temporality, one predicting the other, is -- is part of

causality. And there are other things such as: Is the data consistent? Is it

powerful? Is it specific to youth? Does it make sense? So there's other

criteria. I think that's why --

But this is only one -- one author, one person's opinion. There's no --

they don't even have a citation for their statement. This is just their

opinion.

*19 Q. But their opinions were used in the '94 Surgeon General report in

the chapter you wrote with a full -- half-page chart; correct?

A. Their data was used in the Surgeon General's report, not necessarily

their opinions.

Q. Now isn't it true, professor, that for a number of years now

researchers in both the public health and advertising literature have been

conducting studies to identify risk factors for smoking initiation?

A. Yes. There have been studies probably since the 1970s looking at

reasons why adolescents might start smoking.

Q. And speaking of the '70s, do you recall a 1972 study by the

Department of Health, Education and Welfare on teen-age smoking and national

patterns?

A. I believe I looked at -- I think it was in the boxes that were

delivered, but I don't remember the data. And I would have to look at that

--

Q. Okay.

A. -- data to comment on it.

Q. Yeah. I didn't mean to make it sound like an exam, that you

remembered everything.

Could you turn to tab 16, to Exhibit AM002026. Do you have that, ma'am?

A. Yes, I do.

Q. And if you could turn to the front page of that, is that a report on

teen-age smoking in 1972 from the Department of Health, Education and

Welfare?

A. Yes, that's what it appears to be.

Q. And it's a government report?

A. Yes, it is.

Q. And reports of this type from the Department of Health, Education and

Welfare include information that you from time to time rely on; correct?

A. Well I really doubt I'd go back to 1972 at this point in time, but

perhaps when I first started in the field I might have looked at this -- at

these data.

MR. WEBER: Your Honor, I'd move the admission of Exhibit AM002026 as a

government report and as a learned treatise.

MS. WALBURN: Objection as a learned treatise, since the proper

foundation hasn't been laid, but no objection as a government report.

THE COURT: Okay. AM002026 will be received as a government report.

BY MR. WEBER:

Q. Now if you could turn to page five, professor, and down in the lower

right-hand column where it begins, "Discussion," do you see that?

A. Yes, I see that.

Q. And what they said in paragraph -- or on -- on page five in the

section labeled "Discussion" was that adult smoking rates have gone down,

but in '68 to '70, teen smoking rates have gone up; correct?

A. They said that in January 1968 an estimated three million teens

smoked, and in January '70 that had risen to four million.

Q. Okay. And in the next paragraph they explain why they did this study.

They said they wanted to see why -- what -- what the characteristics were of

teen-agers who did and didn't become smokers at a time when overall

consumption was decreasing. Do you see that?

A. Yes.

Q. Okay. Could you turn to the next page, page six, and the first full

paragraph on page six. Could you read that for me, please.

A. It says that "While there are many factors in the environment of the

child that influence his taking up, or not taking up, the smoking habit, the

one that has by far the most influence is the smoking behavior of those

around him. This is not surprising when we consider how most members of a

family adopt the family patterns. If parents and older brothers and sisters

are avid readers, the child grows up in an atmosphere where reading is the

thing to do, where books are readily available, and we expect him at least

to try reading. The same phenomenon is operating in the area of smoking. In

households where both parents are present, the teen-ager is much more likely

to be a smoker if the parents smoke. In fact, if both parents smoke, the

teen-ager has about twice the likelihood of smoking than if neither parent

smokes; the rates 18.4 percent and 9.8. This was with one parent who smokes

with a rate of 13.8 percent."

*20 Q. Now in this study, then, one thing identified by the United

States Department of Health, Education and Welfare is family smoking

patterns; correct?

A. Well, you know, this document was written right after this phenomenon

in 1972. The document identifies parents smoking, and it's a very good

example of why we need more information, because as I reported yesterday,

there's two things relevant to this particular statement. One is that as

more research has been done, including the Conrad, Flay and Hill article

that we just looked at, parents smoking as a predictor of youth smoking

behavior has now been not ruled out, but it's been shown to be much, much

less influential than other factors because they didn't control for certain

things, on the things going on in a young person's life. So one study might

find this, but over the course of studies they found that parents were not a

primary factor.

The other thing is that this was a period -- they're talking about 1968

to 1970 -- and when John Pierce, a professor at the University of

California-San Diego, did an extensive analysis of this time, he found that

those increases in youth smoking from three million to four million were

only among females, not young males, and followed the introduction of female

brands into the market in the late 1960s. And that information has only come

out from -- from Dr. Pierce during the 1990s doing retrospective analyses of

what was going on in that time. So in fact this government document, which

was well-intended and used what was available in the -- at that time, is

pretty outdated, and its conclusions, although seemed good at the time,

really are not relevant right now.

Q. Is the answer to my question yes? My question was: In this study, one

thing identified by the United States Department of Health, Education and

Welfare is family smoking patterns; correct? Is the answer to that yes?

A. In this outdated study they did identify parents as an influence on

smoking, but I felt that you should -- that we should at least discuss the

context of this particular government document and what we -- a little bit

more -- a little bit more of what we know of this time period now that we

have had more research done.

Q. Now could you read the next paragraph, professor.

A. What page are we on?

Okay.

Q. That's on page six. It's the paragraph right after the one we were

just on.

A. "If parents have such a profound influence, what about older brothers

and sisters? Again, we find a striking relationship between the behavior of

the older members of the family and that of the younger members. In homes

where both parents are present, boys with an older brother or sister are

twice as likely to smoke if one or more of the older siblings smoke than if

none smoke. The relationship is even stronger among girls, with a four to

one ratio; 24.8 percent of girls with one or more smoking older siblings are

smokers while only 5.6 percent of those with older siblings, none of whom

smoke, have taken up the habit."

*21 Q. Now professor, would you agree that one other thing identified in

this Health and Education -- Health, Education & Welfare Department study,

one other thing identified is the relationship, the striking relationship

between the behavior of the older siblings and that of the younger child who

begins to smoke? Is that a factor they identified here?

A. Well once again, I'd like to explain before I completely answer your

question, and that is that once again recent research still shows somewhat

of a strong effect between siblings smoking and young people smoking. In a

way, you can think of siblings, because they're so close in ages, kind of

like a part of the peer group. But if we remember from yesterday we looked

at two articles, one article by Schooler, et al, was the one that showed

that very high exposure to advertising and promotional campaigns, and they

found that exposure to advertising and promotion was a much stronger

predictor of smoking than sibling smoking.

The last study I reported, the Pierce study, also showed that having a

favorite advertisement, even being willing to wear one of those promotional

items, was a much stronger factor than either peer or sibling smoking. And

in fact in that study, sibling smoking didn't turn out to be a risk factor

at all.

So yes, in this particular document they said yes, siblings are an

effect, but this is an outdated, old document.

Q. Now could you go on to the next paragraph, professor, and read that,

down to the bottom of the page.

A. Yes. It says, "When the combined effect of smoking of parents and

older siblings is considered, the concept of family patterns is reinforced.

The lowest level of smoking is found among teen-agers who live in households

where both parents are present and neither smokes, and who have older

siblings, none of whom smoke. Less than one in twenty have become regular

smokers. This compares with one in four in families with at least one parent

and one older sibling who smoke."

Q. So that in this paragraph, what they identify is that for teens

living in a home with no smokers -- well strike that -- that for teens who

live in a home where at least one parent and older sibling smokes, they have

over five times, in this study, greater risk of beginning smoking, correct,

compared to those who live in homes with no smokers? Is -- is that what that

data shows in that paragraph?

A. This early data didn't control for any factors such as age of the

person or gender of the person or socioeconomic status, things that might

affect this -- this relationship.

Those same two studies that I just talked about a minute ago both showed

that cigarette advertising and promotion were a stronger factor, a stronger

cause of young people smoking than sibling or parent smoking or family. You

could think of family smoking combined. So in this outdated document, that's

what they say. But it's really not what we found, however it is, 26 years

later.

Q. Now, you didn't mean to say, did you -- I may have misunderstood you.

You didn't mean to say that this didn't include data on boys and girls.

*22 A. No. What I meant by that was that they --

Actually I don't know because I haven't --

Q. Well I was going to say you, can --

A. -- studied this.

Q. -- take a moment and look through the back. There's all sorts of data

on both boys and girls, and in the discussion section we just read they

collapse it together.

A. Right. And that's a particularly wrong thing to do for this time

period, 1968 to 1970, because if you remember my very first chart, the

percentage of under-age teens, females doubled, doubled in prevalence, a

huge increase; that didn't occur for males during that time. So gender is a

pretty important factor, what -- because girls were the ones increasing

during this period of time, not boys.

Q. Now in the period of time they were looking at, '68, '69 and '70,

cigarettes were advertised on television; weren't they?

A. Yes, they were.

Q. And the siblings --

Well the teen-agers who lived in a home where there was no smoking were

exposed to those ads; correct?

A. Please repeat that.

Q. What I'm saying is that whether a teen lived in a home with other

smokers or in a home where there weren't any smokers, they were exposed to

that advertising; correct?

A. Well during this period, not only were they exposed to advertising,

but they were exposed to counter-advertising, and you can't say whether --

how much one sibling looked at it or another. I mean -- so yes, it -- they

were exposed to cigarette advertising and, during this period, counter-

advertising.

Q. And even though both groups were exposed to advertising, these

differences were observed in this study; correct?

A. Differences between males and females were observed during this

period because there was a huge increase in the amount of advertising that

was aimed at females. And remember that that increase was only -- the

increase we found in smoking was only for females under 18 years old, that

that increase didn't occur for --

So the parents were role models. The mothers weren't smoking more and

the teen-age girls saying, "Oh, my mother is smoking." That wasn't it. It

would be under-age females who were smoking.

Q. I'm sorry, my question may not have been clear.

What I asked was this study shows these differences between teen

initiation rates with respect to families where smokers lived in the house

and families where smokers didn't live in the house, they showed these

differences even though, presumably, all groups were exposed to cigarette

advertising; correct?

A. I don't really know how to answer that question. There's differences

with males and females. I don't know how to answer you that question.

Q. Could you turn to -- hang on just a moment -- oh, this is one of the

Velo-bound ones. It's AM002033. That would not be in one of the binders, it

would be in one of the Velo-bound ones, ma'am.

Do you have that?

A. Yes, I do.

Q. And can you identify that as a report by the Department of Health,

Education and Welfare on "Teenage Smoking: Immediate and Long Term

Patterns," dated November 1979?

*23 A. Yes, it is.

MR. WEBER: I'd like to, Your Honor, move the admission as a government

report for Exhibit AM002033.

MS. WALBURN: No objection.

THE COURT: Court will receive AM002033.

BY MR. WEBER:

Q. Now could you turn to page 18, professor, and would you read that

paragraph labeled "Peer Patterns," please.

A. "Respondents were asked how many of their four best friends have" --

(clearing throat) excuse me -- "have at least experimented with smoking

cigarettes, and, of those, just" -- or "how many had just experimented, how

many smoked occasionally, and how many were regular smokers. Among

respondents who smoke, an overwhelming majority indicated that at least one

of their four best friends was a regular smoker, while only 10 percent of

the boys and 5.9 percent of the girls indicated that none of their four best

friends smoked regularly, and as few as 2.2 percent of the boys and none of

the girls said that none of their friends had even experimented with

cigarettes. Nonsmokers showed exactly the opposite pattern. Only one-third

said that one or more of their best friends smoked" -- or "best friends were

regular smokers, while more than two-fifths said that no friend smoked

regularly, and another one-fifth had no best friend who had even

experimented. There is no question that smokers have friends who smoke, and

nonsmokers have friends who do not smoke."

Q. Now, this government study in 1979, then, identified what they call

peer patterns as being associated with smoking initiation; correct?

A. This government document says that if you're -- if you have peers who

smoke, that that can be an influence on -- on your smoking.

Q. Now if you could turn to, I think, chapter four of the '94 report. Is

that the chapter you wrote?

A. I wrote part of it.

Q. And if you could turn to page 127.

Now on page 127, professor, you identify socioeconomic status --

socioeconomic status as a predictor of smoking initiation in multiple

studies; correct?

A. Just a second.

Yes, we identified it, and it wasn't one of the strongest predictors in

Conrad, Flay and Hill, but it was a predictor. We identified it --

Q. And --

A. -- as a predictor.

Q. I'm sorry. Were you finished? I'm sorry.

A. Yes.

Q. And socioeconomic status was a predictor if it was low socioeconomic

status; correct?

A. Yes. It's a -- it's somewhat confounded with -- in that African

American people tend not to -- youth tend not to start smoking as much as

white youth even -- so it's a bit confounded in that -- in that way.

Also, we tended to look at socioeconomic status more as an indicator of

who would be -- what kinds of groups would be at highest -- you know, should

receive our programs the -- the most, not an individual-by-individual basis.

Q. And low socioeconomic status means those who are less economically

fortunate, less well off; correct?

A. Yes. But this wasn't our strongest -- our strongest predictor.

*24 Q. I -- I didn't ask if it was your strongest, I just asked whether

you identified it as a predictor in multiple studies, and that's low

socioeconomic status.

I apologize for my writing, professor, but that's as well as I guess I

can do. Now --

And with respect to people and teens who are low socioeconomic status,

mid socioeconomic status or high socioeconomic status, they're all exposed

to advertising as well; correct?

A. Well it may be that those at low socioeconomic status may be more

vulnerable to -- particularly to promotional activities, and that is that if

you have a promotional activity that -- for example, the coupon, in which

you can get two cigarettes -- you buy one cigarette pack, you get another

cigarette pack, well that might be more appealing to someone of a low

socioeconomic status. Also getting some kind of promotional activity. So in

a way they might be more -- more receptive to tobacco advertising and -- and

promotion.

And in fact, in some of the documents the tobacco industry talked about

underachiever -- teen-agers that are underachievers, and, you know, how to

place their marketing toward these underachievers.

Q. Now my question was the low, mid and high socioeconomic status teens

were all exposed to advertising; were they not?

A. Yes, they were all exposed to advertising.

Q. Now another factor you identify, and it's on page 127 as well, is the

level of parental education, and you stated that the level of parental

education has been shown to have a significant impact on adolescent smoking

behavior in some studies. Is that what the report stated on page 127?

A. We didn't list this as a major factor because it is completely --

almost completely confounded with socioeconomic status when people do

surveys, so I wouldn't consider that an independent --

Q. Well --

A. You know, a factor. I mean if you're making a list of factors, we

should talk about the important factors, the most important of which is the

source of all this influence, which is the tobacco companies. They are the

ones that start the source, influence these factors which go on to teen-age

smoking. So you can continue down this list for the rest of the day, but the

source of cigarettes is the tobacco industry, and they figured out how to

influence these factors which in turn will influence smoking.

Q. Now do you agree with me that parental education has been shown to

have a significant impact on adolescent smoking behavior in some studies? Is

that a true statement or not?

A. It has been shown in some studies, but it -- we didn't find it in

this review to be worthy to be a major factor, so we didn't include it. And

I don't believe Conrad, Flay and Hill included it either. So I don't think

it's really worthy -- if you're making a list here, I don't think it's

really worthy of that list.

Q. Okay. Well it was worthy enough to be in the '94 report; wasn't it?

A. Yeah. We were trying to be comprehensive.

Q. Okay.

*25 A. Which --

Q. Okay. Well let's list it as something you discussed in your chapter

in the '94 report as being associated with adolescent smoking in some

studies. Now --

And again, whether your parents have higher education or lower

education, you're still -- teens are still exposed to advertising; correct?

A. Yes. All -- really all teens, as we saw, were highly exposed to

advertising.

Q. Now another issue you discussed -- I want to get into more of this

later, but let's just list it right now -- is ethnicity; correct? And that's

discussed at page 128 of the report.

A. I don't believe we came to any conclusion concerning ethnicity,

because the studies were in fact not consistent in terms of ethnicity. The

only very notable thing that has occurred, and that's since the late 1970s,

is that African Americans have decreased their -- their smoking, and what's

quite interesting about that is that they also have started to increase

their smoking again in the 1990s. So all -- all teens, both genders, and all

racial groups have started to increase their smoking in the 1990s.

In this report I don't believe -- no, we didn't list it as a major

factor, and neither did Conrad, Flay or Hill.

Q. Now, the report does discuss later, though, does it not, the wide

difference in teen smoking rates between African American youth and white

youth?

A. Well as a matter of fact, we didn't discuss it.

Q. Okay.

A. We presented data on it, but to this date, as far as I know, we don't

really have a very good explanation for that. There's been some research

going on in the 1985 Surgeon General's report, which hasn't come out yet

because it hasn't gone -- gone through or been completed, is exactly on that

topic. And so my reading of the literature is that we don't have an answer

for -- for the reason in the decrease among the African American population.

Q. Now another topic --

Well let me put ethnicity up there as a possible factor that you

discussed in this '94 report. Correct?

A. I hope that you don't think I'm agreeing to the factors that are on

there, because I'm not.

Q. I'm just listing factors discussed in the report here, professor.

A. Well we have -- that's a -- well that's --

I hope you have a lot of paper.

Q. Okay. Now another factor you listed as being associated with

adolescents beginning to smoke were the number of parents living in the

home; correct?

A. What page are you on?

Q. I'm sorry, I think 127.

A. Yes. We said these findings must be interpreted with caution since

most are from cross-sectional studies that were able to determine -- unable

to determine with certainty which occurred first, living in the

single-parent home or smoking. So this was -- we --

You know, in this report, I think, if you have read any of the Surgeon

General's reports, they are really exhaustive in terms of the literature,

and that's what I tried to do here. I also tried to summarize that with the

first figure that I explained yesterday with the little X's as to which were

found to be risk factors. Yesterday I tried to explain out of those what are

the most important factors, and most importantly that the factor we found of

critical importance was cigarette advertising and promotions, which we

created our own chapter on.

*26 Q. Now --

So the answer is yes, that the single -- number of parents living in the

home was one of the factors identified; correct?

A. No.

Q. At least in some study?

A. Well, you can put it on your list if you like, but I think I just

read that these findings from -- it looks like it's three studies -- must be

interpreted with caution, and so if you want that on your list, then that's

fine, but it's not a very scientific approach.

Q. Well all studies have to be interpreted with caution to determine

what comes first and what follows; correct? That's called confounding. Do

you agree with me?

A. In this case we were saying that these were cross- sectional studies,

they were associative studies, none of these had any temporal relationship

to them, so that we were putting a big exclamation point there saying let's

not blame the single parent, the single mother for their child beginning to

-- to smoke. We didn't want that to -- to come out of this report because

that's not what these data -- these -- this information says.

Q. Now another factor you identified on page 129 was that availability

of cigarettes predicts the onset of smoking. Do you see that?

A. Yes. We saw that in this chapter, I really focused primarily on the

demand side of the equation; that is, why might adolescents within

themselves want to -- want to start smoking? But there's also a supply side

to this that we haven't really -- really talked much about. And one point

I'd like to make is that the supply side, access, is not independent of the

tobacco industry. The tobacco industry is right in there at the retail level

making cigarettes more attractive to people, in fact to young people, and in

fact making them more accessible. If you have a -- a stand in -- when you

walk in and it's a help-yourself stand for cigarettes, that's very tempting

for a young person. So yes, there's both demand and supply, and the supply

part we spent most of the time on because that's most of the research

literature in chapter six on how to prevent adolescents from starting to

smoke.

Q. Perhaps you didn't understand my question. My question was, quote:

"Now another factor you identified on page 129 was that availability of

cigarettes predicts the onset of smoking. Do you see that?"

A. Yes, I see --

MS. WALBURN: Well objection, asked and answered. And in fact the

reference which counsel is specifically citing, the entire page does include

the discussion which Professor Perry just referenced on tobacco company

actions.

THE COURT: Okay. You may answer the question.

A. What I said was that access is the supply side of the equation, it's

the supply side, and certainly if adolescents have -- have access to

cigarettes, that's going to make them -- make it easier to smoke. And the

tobacco industry has been involved at the retail level, at the -- at the

point-of-purchase level, not just making it attractive with those really

neat advertisements we saw yesterday, the big signs of Camel, but also

making it less expensive with coupons, giving a lighter with your

cigarettes, or just making it easier to take a pack if you're in there. The

tobacco companies in fact pay the retailers so that they will make the

cigarettes be in prominent locations in their convenience stores, the stores

where teen-agers go.

*27 So yes, access is a factor, and the tobacco industry is right in

there making it more accessible to young people.

Q. Okay. So accessibility, if -- if I follow you, is -- is a factor;

right?

A. Yes, it's a particular factor --

Remember when I went through the stages of smoking onset? It's a factor

generally after the first trying stage. It's usually not a factor in the

trying stage. You're not going to have -- generally for your first

cigarette, you're not going to go to a convenience store and -- and buy a

pack of cigarettes. That might -- that might --

And remember, the trying of cigarettes, that two out of three young

people who try a cigarette go on to daily smoking, and that accessibility

hasn't been shown to be related to that first -- to the first cigarette.

It's generally down the level, the more you're smoking. So the -- the

adolescents that are regular smokers, daily smokers, those are the ones that

are more likely to -- to have -- need access or -- to cigarettes.

Q. Now another factor identified in the report on page 132 was parental

reaction to smoking or parental attitudes towards smoking; correct? Kind of

the bottom left-hand column.

My question is: Was that discussed in the Surgeon General's report as

being associated with the onset of smoking?

A. You know, we discussed -- I discussed -- or we discussed, I should

say, you know, most of the factors that have been identified in hundreds of

studies. The purpose of this report is to be complete, to have a sense of

completeness.

Parental reactions, and we as a peer group decided what were the most

potent factors, what were the ones that really made a difference, those were

in Table 1, and out of that cigarette advertising and promotion deserved its

own chapter. So we can actually spend the better part of two -- of a few

days going through chapters four and five factor after factor, because when

I wrote this I tried to be complete.

I think in this part we're talking about two studies, that's two studies

out of hundreds that I looked at said this, so in my -- that's my job in

this is to be complete. But it didn't meet the requirements of being one of

the major factors that we looked at. There was association in a couple of

studies.

Q. Yeah. Now I didn't mean to ask a complicated question. Let me -- I'll

ask: Is now another factor you identified on page -- oh, let me strike that.

I'm reading off the wrong one.

Now another factor identified in the report on page 132 was parental

reaction to smoking or parental attitudes towards smoking. That was all I

asked. And -- and is the answer to that yes?

MS. WALBURN: Objection, that was not the entire question that counsel

asked. The question goes on.

THE COURT: Sustained.

Q. Okay. "Was that discussed in the Surgeon General's report as being

associated with the onset of smoking?"

A. Well to repeat my answer, I included in this chapter -- which was

peer reviewed, so I should say we included in this chapter any -- really

just about any factor we found in any of these hundred studies, and from

that we picked what we -- what we felt from the science at the time were the

most important risk factors, and from that I told you yesterday what I felt,

what I believed to be the most important factors. In addition, my peers and

I took out cigarette advertisements.

*28 So in direct answer to your question, yes, we talked about parental

reaction, yes, there were two studies out of hundreds of studies, and yes,

you can add that to your ever-growing list on the chart.

Q. Now, did you also state in this chapter that families in which

parents are generally concerned and supportive or in which the children are

involved in family decisions are homes in which adolescents are less at risk

for smoking onset? Do you remember that?

A. Can you direct me to a particular --

Q. Sure.

A. -- page?

Q. It's page 139, professor.

A. So in between we passed quite a number of factors.

Q. Right. We're going to come -- I'm sorry. We'll come back to some of

those later.

A. Okay.

Q. And does it state on page 139, "Families in which parents are

considered to be generally concerned and supportive, or in which the

children are involved in family decisions, are home environments in which

adolescents are less at risk for smoking initiation?" Does it say that?

A. This wasn't considered to be a major conclusion of this chapter. It's

not reflected in -- in Flay and Hill. It was only supported in 43 percent,

less than half of his studies. We didn't include it in the chart.

To answer Mr. Weber's question, yes, the sentence is in the Surgeon

General's report, but no, it was not considered to be one of the major risk

factors.

Q. So that is in the report is your answer; correct?

A. There are many factors in the report.

Q. Now the '94 report also talked about the issue of peers again; did it

not?

A. Could you explain yourself?

Q. Sure. I'm -- I'm sorry, that wasn't a very clear question.

We mentioned peer patterns earlier from some of the studies in the early

1970s or later 1970s; correct?

A. I think I need for you to explain exactly what you mean by "peer

patterns."

Q. Okay. That --

Do you remember a little bit ago when we were going through that 1979

study, there was a section I had you read that was labeled "Peer Patterns?"

A. I remember that. I want to know what your definition is of "peer

patterns" before I answer your question.

Q. Okay. Now the '94 report said there was a clear link between peers

smoking and cigarette initiation; did it not?

A. Can you direct me to that?

Q. Yeah. It should be at page 131, professor. And it would be in the

first full paragraph in the right-hand column. Could you read that sentence

that begins "A positive association...?"

A. "A positive association of peer smoking with onset of smoking in 88

percent of these more rigorous, longitudinal studies suggests a clear link

between peers' smoking and cigarette use."

Q. And on the left-hand column where it begins with "peer Smoking and

Peer Behaviors," could you read -- begin reading that paragraph on the left

down to the Leventhal quote?

A. Well first I'd like to remind the jury --

Q. Professor, --

A. Um --

Q. -- could you --

A. I'll answer your question.

*29 Q. The question was please read that.

A. And do I have to do exactly --

Do I have to do that exactly?

Q. Well I can't tell you what to do, only His Honor can, but my question

is would you please read that beginning part of that paragraph.

A. Can I have a preface to my reading?

Q. Well I'm --

THE COURT: Professor --

Q. I don't want to get involved --

THE COURT: Professor, maybe you can just read it for him.

THE WITNESS: Okay.

THE COURT: You'll have a chance, through your attorneys, to preface and

sequelize and do whatever you choose practically. At this time why don't you

just read it.

THE WITNESS: Okay. Can I say something after I read it?

THE COURT: Well we're trying to do a question and answer here.

THE WITNESS: Okay. I'm sorry, Your Honor.

THE COURT: Okay.

A. "One of the areas of widest investigation in the antecedents of

cigarette smoking concerns peer smoking and related peer behaviors. Peers

may be defined as persons of about the same age who feel a social

identification with each other. The influence of peers has been positive --

posited as the single most important factor in determining when and how

cigarettes are first used. Flay et al suggest that smoking may primarily

represent an effort to achieve social acceptance from peers and that it may

be particularly be a -- and it may particularly be an experimental 'adult'

activity that is shared with the peer group. Leventhal and Keeshan suggest

that adolescents are not only influenced by, but also influence and

construct, their peer groups."

Q. Okay. Professor, could you read the first sentence of the next

paragraph.

A. "Multiple cross-sectional and longitudinal studies worldwide

substantiate the relationship between smoking onset and peers' (or friends')

smoking."

Q. And this is another instance where, in the '94 report, you relied on

international data; correct?

A. We had plenty of data from America for -- for this. We were just

pointing out that this was -- that this was consonant worldwide. But the

Surgeon General's reports are in fact to deal only with the United States.

We don't -- there's sometimes comments, small comments about things going on

in other countries, but for the most part we just were confined to talking

about the United States.

Q. Okay. My question was you relied --

This is another instance in your report where you relied on

international data; correct?

A. I would say we did not rely on it to come to our -- to our -- to our

discussion here.

Q. You've discussed it. Would you at least agree that when you said

"Multiple cross-sectional and longitudinal studies worldwide substantiate

the relationship between smoking onset and peers' (or friends') smoking," --

A. Well --

Q. -- would you agree that you at least discussed the international data

there?

A. Well if you remember Conrad, Flay and Hill, nine of the 27 studies

are from other countries, so to the extent that Conrad, Flay and Hill are --

are sourced here, those include international studies at well -- as well.

*30 I really don't think in this instance we -- we thought much about

the worldwide data. We had enough data on -- on our own.

MR. WEBER: Your Honor, I don't know whether this might -- I've got more

of the list to go through. Might be a good time for a lunch break. It's up

--

Obviously I'm at your pleasure.

THE COURT: All right. Maybe you can restock your paper in the meantime.

MR. WEBER: Okay.

THE COURT: All right. Let's recess and reconvene at, oh, about 1:35.

THE CLERK: Court stands in recess to reconvene at 1:35.

(Recess taken.)



(Jury enters the courtroom.)

THE CLERK: Please be seated.

THE COURT: Counsel.

MR. WEBER: Thank you, Your Honor. I better power up, I guess.

Thank you, Your Honor.

Good afternoon, ladies and gentlemen.

(Collective "Good afternoon.")

BY MR. WEBER:

Q. Good afternoon, professor.

A. Good afternoon, Mr. Weber.

Q. Could you turn to your chart at page 123 of the 1994 Surgeon

General's report.

A. Yes.

Q. And that was the chart we'd been discussing before that listed the

psychosocial risk factors for initiation of tobacco use?

A. That's right.

Q. Now another one of the risk factors listed on there is academic

achievement; am I correct?

A. Yes, it is.

Q. And that's a risk factor based on the literature review in this

report with respect to that group of students that tend to do not as well in

school; am I correct?

A. Yes, it's students who do more poorly in school. These students are

potentially -- are -- are more at risk for starting to smoke, at least in a

number of studies. And you could understand why they might be at greater

risk and also be more vulnerable to tobacco industry advertising. As I

talked about yesterday, adolescents are moving from concrete to an abstract

thinking, and those -- you need to be taught, you need to go through school

just like to learn to read, you need to be given certain teachings in order

to move more quickly from concrete to abstract. So those who are at lower --

lower academic achievement may in fact be at greater risk for messages from

the tobacco industry because they're more concrete thinkers.

Q. So that is listed as a risk factor on the chart; am I correct?

A. Yes, it is.

Q. Now also listed as a risk factor on the chart, as a matter of fact

the next item, is "Other problem behaviors;" correct?

A. Yes. That's other problem behaviors that occur during - - during

adolescence.

Q. And would that include a tendency for risk-taking behavior, or would

that be a separate listed item?

A. I believe in this chart it means -- it doesn't mean a tendency

towards risk-taking behavior but actual involvement in risk-taking

behaviors, such as alcohol use or other drug use. And -- and in fact

cigarette smoking is generally one of the first of these problem behaviors

to occur during adolescence.

*2 Q. Now are you familiar with the University of Michigan Monitoring

the Future studies?

A. I know about them, yes.

Q. And indeed, you -- you referred to some of them yesterday; did you

not?

A. Yes, I did.

Q. Could you turn to tab 19, and that's -- I'm sorry, that would be

Exhibit AM000596. Do you have that, professor?

A. Yes, I do.

Q. And is that the Monitoring the Future study from December 20, 1997,

with a related press release?

A. Yes. It looks like it's from Monitoring the Future web site.

Q. And again, this is data that you rely on on your analysis of teen

smoking rates and issues of that type; correct?

A. In part we rely on the data from Monitoring the Future. I don't

believe I reported anything from the 1997 data set since that just was

released late in December of 1997.

MR. WEBER: Your Honor, I'd move the admission of this study as a learned

treatise and a matter on which the professor relies.

MS. WALBURN: No objection.

MR. WEBER: It's -- I'm sorry. Did I -- do you need the number?

THE COURT: No.

MR. WEBER: Okay.

THE COURT: The court will receive AM000596.

BY MR. WEBER:

Q. And could you turn to Table 1, which is the cigarette use table

there, professor?

A. Do you have a page?

Q. I think it's the sixth page in by my count. See if that gets you to

Table 1, which is labeled "Cigarettes."

A. Yes.

Q. Okay. I'd like to go through a few of these numbers over a period of

time for you -- or with you. I guess I wish I had a better copy, but --

I want to start over here on the left. What this study does is it

reports on lifetime smoking rates among eighth, 10th, 12th graders, although

for most of the time it only has rates for 12th graders; correct?

A. Yes. It began the surveys of eighth and 10th graders in 1991.

Q. And lifetime rates are ever smoker rates, anybody who's ever had a

puff of a cigarette or more; correct?

A. I'm not a hundred percent sure of their definition, so I'll --

Q. That's usually the definition for lifetime; isn't it?

A. Sometimes it's have you smoked a whole cigarette, but - -

Q. And then the next column they have is what's called the 30-day

prevalence rate, and that means anyone who's had a cigarette in the last 30

days; correct?

A. Yes, it is.

Q. Then they have a daily rate, that's anybody who's had one or more

cigarettes a day; correct?

A. Yes, it is.

Q. And then the last column is one-half pack or more a day; correct?

A. Yes.

Q. All right. Now what I wanted to do is start with 1976 and note that

the ever smoking rate was 75.4 percent; correct?

A. That's right.

Q. For 12th graders.

A. That's right.

Q. The ever smoking rate for -- or strike that.

The 30-day rate, anybody who had a cigarette in the last 30 days, is

38.8 percent for 12th graders.

A. That's right.

Q. The daily rate is 28.8 percent; correct?

A. Yes.

Q. And the one-half pack or more rate is 19.2 percent; correct?

*3 A. Yes.

Q. Now what I'd like to do is move over to 1992, and you see where

they've got that data? Are you with me, professor?

A. Yes, I am.

Q. I'm having a hard time because I'm behind this chart, but I can hear

you.

Now in 1992 the 12th grade ever smoking rate was 61 percent; correct,

61.8?

A. Yes, that's right.

Q. And from 19 --

If you go back to the 1976 line for lifetime ever smokers, to the 1992

rate, you see that the ever smoking rate for high school 12th graders has

dropped, if you'll trust my math, 18 percent, from 75.4 percent to 61.8

percent; correct?

A. Well as I said yesterday, the rate dropped and was pretty -- went

constant throughout the '80s until about 1992 when it began going up again.

So there was a drop in the '70s, but as a scientist I believe those changes

in the '80s were not for the most part statistically significant. And then

up. So I think that's consistent with what --

Although I was reporting on 30-day current smoking yesterday.

Q. Well -- and I'm going to ask you some questions about that in a

little bit, and indeed the reason I chose '92 was because you referenced it

yesterday. But would you accept my math that from 1976 to 1992, for the

lifetime ever smokers, seniors, that rate dropped 18 percent over that

period of time?

A. Except that it went down in the '70s, leveled off in the '80s to

1992, and that was about what -- what you said, 18 percent.

Q. Okay. Now let's move down to that 30-day prevalence rate, and that

went from 75.4 percent -- excuse me, I'm sorry -- from 38.8 percent, anybody

who had one cigarette in the last 30 days, to 27.8 percent; correct, for

high school seniors?

A. Yes, that's the current smoking rate.

Q. And that's a 28 percent drop, if you accept my math.

A. I got a 10 percent drop.

Q. I'm talking about if you compare the 38 --

A. To the --

Q. -- to the 27; that is, if you take a hundred percent of the rate in

1976, --

A. Then it's 11 --

Q. -- that dropped 28 percent over that period of time.

A. It's 11 percent. It went from 38 to 27.

Q. Right. But what I'm --

A. Oh, and then you're dividing it.

Q. Here's -- here's my calculation. If you take the 1976 rate as 38.8

percent for anybody who had a cigarette in the last 30 days, and you bring

that forward to 1992 where that rate is 27.8 percent, that means that of

this number, that reduced itself over this period of time by 28 percent.

Follow me? And you'd do that by dividing the 38.8 into the 27.8.

A. No.

Q. I mean it's an absolute drop of eleven percent, but I'm talking about

--

A. Right. So the drop -- the drop is calculated as eleven --

If you were going to say what percent drop, you would say eleven percent

over the 38.8 percent, which is about a 20 percent drop. I -- I'm not quite

-- I mean your math is quite odd --

Q. Well --

A. -- to me.

Q. -- what I'm trying to do, and if you've got a -- you can help me

here.

A. Yeah. I think we can say there was an 11 percent drop.

*4 Q. Well what I'm trying to do is also evaluate it the other way,

saying if I take the rate of 38.8 percent -- all right?

A. Uh-huh.

Q. And that's the rate right there.

A. Right.

Q. What percentage reduction of this is there to get to 20 -- to get to

a line that would be 27.8 percent. And of the 38.8 percent, --

A. Right.

Q. -- that reduction would not -- would be 28 percent of what this total

was; isn't that correct?

A. Okay. You took eleven and put it over 38.

Q. Okay.

A. That's what you --

Yeah. Okay.

Q. Okay.

A. Eleven over 38.

Q. Yes.

A. And if someone could calculate --

Q. Is that right?

A. Okay.

Q. Now if you look at the --

A. But I'd like to point out that the -- most of that drop, again, as I

talked about the trend yesterday, the drop went from 38.8 all the way down

to 30 by 1982, so the -- again in the '80s it was -- it was pretty flat.

Q. Okay. And if we look at the daily rate, professor, anyone who smokes

a cigarette a day, that was 28.8 in '76 and 17.2 in 1992; correct?

A. Yes.

Q. And if we perform the same calculation, that would be an

approximately 40 percent reduction from the rate in 1976; correct?

A. Well you're subtracting, putting eleven over 28, so it's eleven of

28. Is that correct?

Q. I checked it on a calculator, but if I'm wrong, I'm wrong. I'm sure

His Honor will strike it.

If you'd look at the half pack a day --

THE COURT: Well I do strike your checking it on a calculator.

Q. Could you check the half pack a day. It was 19.2 in '76 and down to

10 percent in 1992; correct?

A. Yes.

Q. And that's approximately a 48 percent reduction from the rate in

1992.

A. All right.

Q. Now let's look from -- I'd like now to focus on that 30-day -- well

strike that, professor.

That period from 1976 through 1992 was a period when advertising and

promotional expense increased substantially; correct, in the cigarette

industry?

A. I believe it started to increase in the '80s, if my memory serves me

correctly, and then accelerated in the late '80s and particularly in the

'90s, and then we only had information up through 1994.

Q. Do you know whether or not there was a steady increase over this

period '76 through '92?

A. I believe there was a steady increase during the '80s, so close

enough.

Q. And in that period of time, from the lightest rate of use to the more

heavy rate of use, there was a percentage drop in each category for the 12th

graders; correct? Eighteen percent, 28 percent, 40 and 48.

A. Yes, I would hope so, because this was a time of quite intense anti-

smoking activity, so it's not just the increase in advertising and promotion

that might be related to adolescent smoking, but it was also what else was

going on, which included anti-smoking activities.

Q. And let's look --

You mentioned '92 yesterday. Let's look at the period right -- the four

years after '92, from '92 through '96, and you'll see again that 61.8 rate

for ever smokers, anybody who ever had a cigarette, among seniors, increased

slightly over that four-year period; correct?

*5 A. If I remember, that's a statistically significant increase.

Q. All right. And then the 30-day rate; that is, anyone who had a

cigarette in the last 30 days, that increased from 27.8 in '92 to 34 percent

in '96; correct?

A. Yes. I believe that's about a 20 percent or more increase.

Q. Well I got it at 22 percent. Will you accept that, professor, a 22

percent --

A. You have the -- you have the calculator.

Q. Okay. Then on the daily cigarette rate, that increased from 17

percent to 22 percent; correct?

A. Yes.

Q. And the half pack a day increased from 10 to 13 percent; correct?

A. Yes, it did.

Q. Now I'd like you to turn --

A. But before we leave this, can I point something out in this data?

Q. I'm sorry, professor. Your counsel, I think, will have a chance to

fill in for you later. Right now --

A. Oh, I thought --

Q. Okay?

A. You said "is that all right," and I was trying to respond to that.

Q. Now --

THE COURT: You may respond to "is that all right." Let her respond to

your question, --

MR. WEBER: All right.

THE COURT: -- counsel.

A. I just wanted to point out to the jury that you can see what -- why

is the -- why we were concerned about this data weren't these calculations,

but that you could see there was, you know, pretty -- we didn't see any

increases, this is the '80s, we didn't see any increases in smoking until we

-- we got to about 1992, then we started seeing increases in smoking. This

same -- that is why people were concerned with the nine -- with the 1990s.

Q. Now could you turn farther back into that same study to what is, I

think, labeled Table 1B, professor.

A. Do you know how many pages more it is?

Q. How far --

A. In what --

Q. Excuse me just a second. How far behind the first one is the other

one?

It's about 20 pages in.

MR. WEBER: May I approach, Your Honor? Okay. Do you have it?

THE WITNESS: I don't really know what you're talking about.

MR. WEBER: Let me see if I can find it for you. Watch your water there.

We're at tab 19, Table 1B. Okay?

THE WITNESS: Yes.

Q. Now Table 1B deals with, among other things, 30-day prevalence for

use of various drugs; does it not?

MS. WALBURN: Objection, outside the scope, and relevance.

THE COURT: Does this relate to smoking?

MR. WEBER: It relates to what was going on with teen-agers from 1992 to

1996 in the multi-factoral issue and the risk-taking that the professor has

testified to, Your Honor. It explicitly addresses those issues.

THE COURT: Well I'll see where you're going here. We are not trying to

try teen-age drug use in general in this case.

MR. WEBER: No. And all I want to do is show that there were increases

going on in risky behavior with teen-agers on these factors.

THE COURT: Okay.

MR. WEBER: Thank you, Your Honor.

BY MR. WEBER:

Q. Now the -- let's compare the 30-day prevalence rate, which is on the

right side of that column, for any illicit drug use for 12th graders, and go

from 1992 to 1996, and that moved from 14.4 percent to 24.6 percent. Do you

see that, professor?

*6 A. Yes, I do.

Q. And that's approximately a 70 percent increase; is it not?

A. Yes, it is.

Q. And in 10th grade, ever use -- or 30-day -- 30-day prevalence of any

drug, that goes from eleven to 23 percent. That's more than a hundred

percent; correct?

A. Yes, that's true.

Q. And eighth grade numbers go from 6.8 to 14.6, that's over a hundred

percent; correct?

A. Yes, that's true.

Q. And you also see increases below in each age group for any drug other

than marijuana as well; correct?

A. Yes.

Q. Now these percentage increases among the 12th graders - - and let's

focus on them because they were the ones we were looking at in the cigarette

prevalence 30-day rates. All right? These percentage increases among the

high school seniors on 30- day prevalence were greater with respect to any

drug use than they were with respect to the increases regarding smoking;

were they not?

MS. WALBURN: Objection, relevance, beyond the scope.

THE COURT: You may answer that.

A. The absolute increases -- you're doing relative. The absolute

increases I don't believe were -- were any larger. We could -- I think I've

charted this out and they're -- they're similar.

I would like to point out to the jury, however, that all of these

illicit drugs, the use of these illicit drugs occurs after cigarette

smoking; that is, a person very rarely, very rarely uses any of these

illicit drugs, including marijuana, prior to smoking a cigarette. Cigarette

smoking is in fact considered a risk factor for all of these illicit drugs

and occurs later in time. So if the average age, as we saw the average age

of onset is about 14 years old for cigarette smoking, the average age of the

first illicit drug, marijuana, use is about two years later. In addition,

the other licit drug, alcohol use -- which of course isn't licit at this age

group because the legal age for alcohol use was 21 years old -- that was

flat. There was no increase in alcohol use during this period.

So cigarette smoking is a risk factor for these illicit drugs. This

doesn't -- isn't saying it caused this increase, but it was certainly

related to and temporally was associated in time with these -- with these

increases, whereas alcohol use among adolescents stayed relatively flat

throughout the ' 90s.

Q. So -- and --

And if I heard you correctly, you're not saying that cigarette use

caused this drug use.

A. I said that cigarette smoking is a risk factor, a risk factor for

illicit drug use. That means use of cigarettes is a predictor of use of

drugs later. It's a predictor.

Q. And the '94 Surgeon General's report noted that, at least with

respect to alcohol, that the fact that under-age may use cigarettes and

alcohol impermissibly doesn't establish cause -- a causal relationship

between smoking and alcohol abuse; correct?

A. Smoking and alcohol use onset occur at about the same time, some

studies have shown, and -- and in the Surgeon General's report we -- we

looked at it, and alcohol -- and cigarette use occurs slightly before

alcohol use, but those are occurring right at about the same time.

*7 I think the point between cigarette use and alcohol use, obviously

these are both important problems in adolescents and -- but the problem of

alcohol use really isn't a problem for the vast majority of users after the

late teens. It's primarily a problem during adolescence, whereas cigarette

smoking continues to be a problem, a health problem long into adulthood.

Q. Now at least it's clear that there was something going on with

respect to youth from '92 to '96 and the risky behavior they were engaging

in that didn't relate to tobacco advertising; correct?

A. I don't agree with that.

Q. So is it your --

Would it be your position that these increases on the 30- day prevalence

with any use of drugs, increases that are greater than the percentage

increases for smoking in that period, is it your position that this 30-day

prevalence increase for use of drugs is related and caused by cigarette

advertising?

MS. WALBURN: Objection to form and relevance.

THE COURT: No, you may answer.

A. Well you said a lot of things there that I didn't quite agree with.

One was that 30 percent where I think it's about an absolute number --

I haven't analyzed why there's been an increase in marijuana use in the

1990s. I have looked at why, in part, there's been an increase in cigarette

use in the 1990s, and my opinion, which I stated yesterday, was that

cigarette advertising and promotion substantially contributed to this

increase.

Q. And my question, professor, was you're not -- strike that.

My question was there must be something else going on with the people in

these age groups from '92 to '96 because they're increasing their 30-day

prevalence rates for various drug use, and cigarette advertising isn't

advertising activity at that type; correct?

MS. WALBURN: Objection, asked and answered.

THE COURT: No, you may answer that.

A. I haven't analyzed what caused this increase in marijuana use. I do

know that cigarette smoking is a risk factor for marijuana use, so it's

plausible that there could be a chain of events, cigarette advertising and

promotion causing cigarette smoking which in turn is a risk factor for

marijuana use. But I really haven't analyzed why there's been an increase in

marijuana use, and I'm not ruling out this chain of events, but I'm -- you

know, I haven't studied that.

Q. Marijuana use wasn't advertised over this period; was it, '92 to '96?

MS. WALBURN: Objection, relevance.

THE COURT: It's -- well, it's a little argumentative.

Q. Isn't it just as plausible that there were other factors in society

affecting the risk-taking viewpoints of adolescents during this period of

time that caused them to undertake a variety of risky behaviors?

MS. WALBURN: Objection, form at this point, calls for speculation.

THE COURT: Well you may answer if you know.

A. I haven't studied why the adolescents increased their marijuana use

during the 1990s.

Q. Could you turn to tab 20, professor. It's Exhibit AB000290. Do you

have that?

*8 A. Yes, I do.

Q. And do you recognize that as a youth risk behavior surveillance

survey by the Centers for Disease Control?

A. Yes, I do.

Q. And you've relied on these in your own work and indeed in the '94

report as well, youth risk behavior surveys out of the CDC; right?

A. Yes. We rely on them to some extent.

MR. WEBER: Your Honor, I'd move the admission at this time of Exhibit

AB000290 as a government report.

MS. WALBURN: No objection.

THE COURT: Court will receive AB000290.

BY MR. WEBER:

Q. Now professor -- professor, this is the most recent youth risk

behavior surveillance study from the Centers for Disease Control; is it not?

A. I can't attest to that. I thought that they did it annually. I was

just involved in some of the editing for this, the 1998 survey, so I can't

attest that this is the latest of the surveys.

Q. As you sit here, you don't know of a more recent one; do you?

A. I can't attest to there's a more recent one.

Q. Now --

And again, the purpose of this survey from the Centers for Disease

Control is -- is to take a national survey of youth and determine what's

going on in terms of risky behavior; correct?

A. It's a survey to look at health -- health behaviors generally. It can

be health-enhancing behaviors as well as health-compromising behaviors.

Q. And one of the things they look at in -- in that survey is cigarette

usage; correct?

A. Yes, they do.

Q. Along with drug usage and a number of other factors; correct?

A. Yes.

Q. Would you turn to tab 21. I'm sorry, that's Exhibit 1989, X1989.

That's a demonstrative. And professor, would you go through with me, I hope

-- I may have to move something around -- and what I'd like to do is show

how the statistics on this bar graph come from the CDC report. Do you

understand what I'm going to be asking you?

A. Yes. So you want me to check back and forth.

Q. Right. I want to make sure that you agree the numbers are right.

MR. WEBER: Your Honor, could I move the admission of Exhibit X1989

conditionally on tying up the numbers from the report in the exhibit we just

admitted? It might make it easier.

THE COURT: Well --

MS. WALBURN: Objection. This is demonstrative that was not prepared by

this witness. And also object to the relevancy of this exhibit in that it

deals with factors beyond cigarette smoking.

MR. WEBER: We've used demonstratives with other -- I mean they've used

some of our demonstrative exhibits with ours, and all this does is --

THE COURT: This isn't --

Is this the plaintiffs' demonstrative?

MR. WEBER: No, this is ours.

THE COURT: This is your demonstrative that you want to introduce through

this witness. That's kind of unusual, counsel.

MR. WEBER: Right. That's -- that's why I want to take -- go through and

just confirm the data, which I can do in about five questions, --

THE COURT: Okay.

MR. WEBER: -- out of the exhibit we've just admitted. It's purely from

the admitted exhibit, Your Honor.

*9 THE COURT: So you want her to create your demonstrative exhibit;

right?

MR. WEBER: I don't want her to create it, but indeed --

THE COURT: Well how will you get it in, then?

MR. WEBER: With one of our witnesses they used a demonstrative.

THE COURT: Of yours.

MR. WEBER: Of -- of ours.

THE COURT: That's why I asked. Is this one of theirs that you're using

with this?

MR. WEBER: It's --

THE COURT: It doesn't work that way.

MR. WEBER: Okay.

THE COURT: I don't --

You can ask the numbers, but I don't think it's fair to use your

demonstrative exhibit when she hasn't prepared it. I don't think that's

proper procedure.

MR. WEBER: Okay. Would it -- would -- I'm sorry.

THE COURT: But -- go ahead.

MR. WEBER: Would it matter if this was one of the predesignated ones. I

don't know if she reviewed it or --

THE COURT: Well you can ask her if she can attest that this is -- this

is correct, then I don't have any problem with that. If she can't, then --

then maybe you'll have to wait until you get your witness on.

MR. WEBER: Okay.

THE COURT: Okay.

BY MR. WEBER:

Q. Professor, did you check the statistics on this demonstrative that

was predesignated for your testimony against the CDC report?

A. No, I didn't.

Q. Okay. Let me --

A. I did look at this demonstrative, but I didn't go back and forth.

Q. Let me do this then. Would you -- just to make it easier for you,

professor, you can put the binder with the demonstrative exhibit away, and

what I'll do is go through the exhibit from the CDC on youth risk behavior

that was just admitted. And I've lost my cover sheet with the exhibit

number.

MR. CIRESI: AM000596.

MR. WEBER: No, I'm sorry, it's A -- this is the AB one.

MR. CIRESI: AB000290.

MR. WEBER: Right. Just for the record, okay?

BY MR. WEBER:

Q. Now professor, could you turn to what's marked as page five, and do

you see the statistics for riding with a driver who had been drinking

alcohol?

A. Yes, I do.

Q. And that says the 30-day prevalence rate; that is to say, within the

30 days before the survey, they give a statistic here of students nationwide

who had ridden with a driver who had been drinking; correct?

A. Yes, they do.

Q. And that statistic is 38.8 percent?

A. Yes, it is.

Q. And on page -- that same page, if you move down a little, in the 30

days before the survey, 15.4 percent of students nationwide had driven a

vehicle after drinking; correct?

A. Yes, that's true. Or at least that's what's reported here.

Q. If you go to page six, professor, right under carrying a weapon, this

federal data reports that 20 percent of students nationwide had carried a

weapon, a gun, knife or club, within the 30 days before the survey; correct?

A. Yes, that's what the document says.

Q. And so far these are all 30-day prevalence rates; correct?

A. Yes, they are.

Q. And let's go to page 10 -- well strike that.

Let's go to page eleven. And that says that, if you go down to the

second paragraph under "Alcohol Use," professor, --

*10 A. Yes.

Q. -- that says 51.6 percent of all students have had at least one drink

of alcohol in the prior 30 days; correct?

A. Yes, that's -- that's true.

Q. And then it goes on to break that data down more. And if you look at

the first sentence of that paragraph at the bottom --

See that?

A. Yes.

Q. -- that says nationwide 32.6 of all students had had five or more

drinks on one occasion in the prior 30 days; correct?

A. Correct.

Q. And those two were also 30-day prevalence rate numbers; correct?

A. Yes, they were. And they're also for -- these are for high school

students, not young adolescents.

Q. Now if you'd go to page 17, please --

I'm sorry. Why don't you just flip over to the next page, page 12; we

might as well catch that while we're there. And that reports that 25.3

percent of students had used marijuana during the past 30 days; correct?

A. Yes, that's correct, as reported here.

Q. I didn't plan that chart very well, but I hope it's clear.

And then there's another statistic on marijuana use, if you go to page

16, and if you'd look at the second full paragraph that begins "Nationwide

8.8 percent...."

A. Uh-huh.

Q. That says 8.8 percent of all students had used marijuana on school

property during the preceding 30 days; correct?

A. That's what it says.

Q. And both those marijuana numbers were also 30-day prevalence numbers;

correct?

A. Yes.

Q. Now if you turn to page 17, please -- and this is not a 30-day rate,

this is a three-month rate -- but if you'll see in that first line down at

the bottom of the page, that reports that 37.9 percent of students

nationwide had had sexual intercourse during the three months preceding the

survey; correct?

MS. WALBURN: Objection to the continuing line of questions on relevance,

Your Honor.

MR. WEBER: I'm almost done.

THE COURT: You may answer.

A. Yes, that's what this says.

Q. And if you could turn to, then, page -- turn back to page 10, if you

would, please. Now the 30-day prevalence rate for smoking is given on -- is

given on page 10, correct, at the start of that first full paragraph?

A. Yes, it is.

Q. And the 30-day prevalence rate for smoking is 34.8 percent?

A. Yes, it is.

Q. And that's one cigarette in the last 30 days would qualify you for

that category.

A. No. That says smoked --

Oh, greater than one cigarette per day.

Q. Right?

A. Yeah, that's right.

Q. And for those who smoked cigarettes, what the Centers for Disease

Control called frequent use, that would be smoking cigarettes on 20 or more

of the days during the month?

A. Yes.

Q. So that's -- that's a greater frequency of use than just once or more

in the last month; correct?

A. Yes, it's 20 or more days per month.

Q. Right. So for those who had more frequency and smoked on 20 or more

days, that was 16.1 percent; correct?

A. Yes.

Q. Now again, according to the data from Centers for Disease Control,

which you've used in your own work, and -- and I apologize for how

overlapping all this is, but -- but I think the numbers are right, obviously

there's a number of risk behaviors engaged in by high school students that

aren't related to advertising; correct?

*11 A. These are data from ninth through 12th graders. They show a

number of very -- of health-compromising behaviors, a number of them. Except

for alcohol use, all these behaviors start after cigarette smoking, and

cigarette smoking is a risk factor or related to all of these behaviors.

All of these are very important behaviors for teen-agers, for our -- our

teen-agers and are of concern to us. Only one of those behaviors, though, is

of great concern into adulthood, in only one of those behaviors does one out

of three who use it currently will die prematurely from it, and that's

cigarette smoking. So when we talk about risk, these behaviors have short-

term risks and they're really important that we deal with them during

adolescence, but one out of three teen-age smokers that are regular smokers

will die prematurely from their smoking. That's the biggest risk. It is much

more risk in terms of number of lives lost than all of these behaviors.

So yes, these are a concern for me, and in particular all of these are

concerns during adolescence. After adolescence, these are of very little

concern, people grow out of them, except cigarette smoking.

MR. WEBER: Your Honor, I'd move to strike that portion of the answer

that was medical-oriented testimony on the basis that it's beyond the

witness's expertise, not being a physician.

MS. WALBURN: This witness --

MR. WEBER: That wasn't designated for her.

MS. WALBURN: This witness was the senior scientific editor of the 1994

Surgeon General's report that dealt with those issues, and counsel opened

the door with the questions on comparative behavior.

THE COURT: I think you did open the door, counsel. I'm going to let it

stand for that reason.

BY MR. WEBER:

Q. Professor, let me ask the question -- let me just ask you the

question again which I just asked you, which was: Obviously there's a number

of risk behaviors engaged in by high school students that aren't related to

advertising; right?

A. You know, Mr. Weber, I don't know how these other behaviors are

related to advertising because I haven't studied them. I believe alcohol use

could be related to advertising, but I really haven't studied that in depth.

I have studied cigarette smoking and I have studied cigarette advertising

and promotion, and my opinion is that it influences teen behavior.

Now there's other behaviors I haven't studied in terms of the

relationship between advertising and these behaviors, and there could be a

linkage, but I don't know.

Q. You're not saying that cigarette advertising causes youth to carry

guns to school; does it -- are you?

A. You asked me the relationship -- I believe, unless I heard you wrong

-- between advertising in general and these behaviors, not cigarette

advertising and these behaviors, but advertising and these behaviors, and I

think I answered that question.

Q. Well I'm -- I'm asking a different question now. I'm trying to narrow

it down. Are you saying that cigarette advertising causes youth or has --

strike that.

*12 Are you saying that cigarette advertising causes youth to carry guns

to school?

MS. WALBURN: Objection, relevance.

THE COURT: Well you may answer.

A. I said this before: Cigarette advertising and promotion is a cause of

youth smoking. Youth smoking is associated with these other behaviors. It's

certainly predictive of marijuana use. There could be a chain of -- of

events there, but right now there's no evidence on that. I'm not going to

rule it out.

Q. So youth smoking could cause high school students to carry weapons to

school. You can't rule that out.

MS. WALBURN: Objection, asked and answered, and misstates the testimony.

THE COURT: Well you can answer it again if you'd like.

A. I really haven't studied gun-carrying.

Q. How about riding with drinking drivers in the last 30 days, has

cigarette advertising caused that? Can you rule it out there?

A. I can't rule it out, because riding with a drinking driver is a peer

behavior, and that could be targeted. It could be targeted in terms of the

peer group just as we showed yesterday that cigarette advertising and

promotions target the peer group and drinking and driving tends to occur in

the peer group, so I can't really rule that out.

Q. How about having five or more drinks on one occasion in the last 30

days, can -- can you rule out cigarette advertising as a cause of that?

A. You know, I haven't studied that. I'd really like not to give an

opinion on that.

Q. You're just not sure on that one way or the other.

A. I haven't studied it, and so I -- I'd prefer not to give an opinion

on that.

Q. How about for the 38 percent of high school students who reported

having sexual relations in the last three months, can you rule out cigarette

advertising as being a cause of that?

MS. WALBURN: Objection, relevance.

THE COURT: Maybe we're getting in the area of argumentative on that

question, I think, counsel.

Q. Now there's another area of research relating to the reasons why

people in general or the under-age in particular smoke, and that's research

that involves asking people questions about why they smoke; right?

A. That's not a different area of research, it's part of some survey

work, and it's -- it's pretty rudimentary, doesn't usually take into account

larger social environmental factors. It's not considered very current kind

of research. It's not.

Q. Historically, you've done some studies where you asked people why

they smoke; correct?

A. Historically I've asked students themselves, or I've heard students

because that's part of our smoking prevention program. That doesn't mean

that students, though, give me the answers that actually regulate their

behavior.

Q. Well they give you the best answers they can give you; right?

A. Well they give me answers that have to do with that part of the inner

ring, because that's all they can see. They're very concrete, what they can

touch, see, feel. They really rarely talk about the larger social

environment.

*13 Q. I noticed you coughed a couple times. Do you want to take a

minute and get some water, or -- I don't mean to wear your voice out. Are

you okay?

A. I think I'm -- I'm fine.

Q. Okay. Could you take a look at tab one, professor. It's AM003036. And

is that an article you were one of the co-authors of in 1980?

A. Yes, it is.

Q. And that --

It was published in Volume 15 of Adolescence?

A. Yes, it was.

Q. And I just wanted to ask whether it refreshes your recollection. Did

you not state in this article that peer pressure is the influence most often

identified by students as the important factor in their decision to smoke?

A. Can you direct me to that, counsel?

Q. I'm sorry. It's at the end -- the last sentence at the end of the

second paragraph.

A. Oh. Yes, I -- I -- (clearing throat) excuse me. Just a second.

Yes, this was a report of our first study that I spoke about on Friday

afternoon, and this is a sentence from that, that peer pressure is the

influence most often identified by students as the important factor in their

decision to smoke. This was, of course, in the context of our smoking

prevention program which, at that time, included a large emphasis on

resisting influences from advertising, because we thought advertising was a

factor in youth smoking.

Q. So at least at that time you cited some research that relied upon

responses from students; correct?

A. I was just saying here that that's what students say, that was among

-- among the research, and of course this is a pretty early article.

Q. Now the Gallup polling organization conducts polls nationally in

which they ask questions on a wide variety of issues; right?

A. Yes, they do.

Q. And they occasionally do surveys that are focused on cigarette use;

do they not?

A. Yes, they do.

Q. And indeed, you and the Surgeon General's report in 1994 cited a

number of Gallup polls with respect to information on smoking use; didn't

you?

A. Yes, I believe we reported a Gallup poll in which 50 percent of

teen-age smokers owned a promotional item and 25 percent of teen-age

non-smokers owned a promotional item. So it was the teen-age self-report of

what they actually owned, so yes.

Q. Could you turn to tab two, which is AM002049, and can you identify

that as a Gallup poll from December 1, 1991?

A. Yes, this is a Gallup Poll News Service from 1991.

MR. WEBER: Your Honor, I'd move the admission of Exhibit AM002049.

MS. WALBURN: Objection, hearsay.

THE COURT: Yeah. Can you lay some foundation whether she relied on this?

BY MR. WEBER:

Q. You've relied --

You've relied, as you said, on Gallup polls in the Surgeon General's

report; correct?

A. I only relied on the Gallup poll in that very one instance, and did

not use any Gallup poll information, including this one, in terms of

etiology, why adolescents start smoking. I wouldn't consider the Gallup poll

a group to tell me why adolescents start smoking. I wouldn't consider that a

research group for that.

*14 Q. Would you turn to page 116 of the 1994 Surgeon General's report.

Do you have that, professor?

A. Yes, I do.

Q. Do you cite a Gallup -- or does the report cite a Gallup poll on that

page?

A. Yes, it does.

Q. Would you turn to page 199.

A. That was for the chapter on epidemiology, and I'm not sure why we

used it.

Q. Would you turn to page 199.

A. Yes.

Q. And does the Surgeon General's report cite a Gallup poll on that

page?

A. Yes. We were reporting on opinions, this was in chapter six -- let me

just check chapter four in case my memory was wrong, which it could be -- in

the etiology chapter in which there were no citations for the Gallup -- for

Gallup.

Q. And could you turn --

So the answer is yes, page 199 does cite a Gallup poll?

A. Yes, we were talking about polling. That is --

We were talking about polling, we weren't talking about why do

adolescents smoke. And in this -- the chapter where we talk about why do

adolescents smoke, there were no citations for Gallup.

Q. Could you turn to page 283, professor. And does the Surgeon General's

report cite one, two, three, four, five, six, seven, eight, nine, 10, 11

Gallup polls on page 283?

A. Yes. Because in this chapter, if you look at page 210, we had a piece

of this called public opinion about preventing tobacco use among young

people. So the Gallup poll provides opinions, public opinions about -- about

tobacco use; that's different than being a learned treatise about why

adolescents might start smoking.

Q. No, I --

Well, you rely on the Gallup polling organization to produce information

that reports reliably the surveying answers it receives; correct?

A. We rely on the Gallup poll to tell us about opinions around people,

opinions, and in this case those citations, all of them, were in -- I think

almost all of them, were in a part of the Surgeon General's report that had

to do with public opinions about restrictions on tobacco advertising,

smoking in public places, those kinds of things. So it was very clearly

labeled that these are public opinions.

Q. So is it your position that you would not, as a professional in this

area, be interested in finding out what a nationally reputable polling

organization has determined by surveying people scientifically as to the

reasons those people identified as to why they began smoking?

A. For the most part people can't tell you. They'll tell you what

happened on that very first occasion, but they can't tell you about the

larger social environment. So I would be relying on much more complicated

types of analyses than a Gallup poll for that. I might look at the data, but

I'm certainly not going to rely on it to base my -- my opinion on.

Q. Wouldn't even take it into account as part of the data on which you

ought to base your opinion?

A. I wouldn't rely on it.

Q. In any way.

A. I'd look at it, but I mean I might say, well gee, it's interesting

that this percent thinks this, but I wouldn't consider it --

*15 It's not an etiologic or a causal model or a -- it's not very

complicated. It tells people's opinions.

Q. Yeah. It just --

All it does is say what smokers themselves believe about why they're

smoking. That's not very complicated; right?

A. Generally it forms into a few categories that they say, and it --

No, it's not very complicated, where the issue is complicated, is

somewhat complicated.

Q. And when you ask smokers why they began smoking, the answers almost

uniformly relate to peers, friends and family; don't they, professor?

A. Overwhelmingly adolescents say, you know, their peers. That's what

they will say. Adolescents usually don't say their -- their family. They

would say their -- their peers. That would be what they'd say.

Generally what I ask is: Given there are so many health consequences to

smoking, why do people your age start smoking? And they say, well, you know,

it's a way to look grown up, or it's a way to act mature, way to be

independent. In fact adolescents themselves identify those developmental

tasks. So it depends, in fact, on -- on the question that you ask them. So

they might identified peers. Adolescents rarely identify their parents.

Q. Well I was talking about smokers in general, though. Smokers in

general, adolescent and adult, the answers uniformly are peers, friends and

family; aren't they, overwhelmingly?

A. I really can't attest to family part of that.

Q. You did say that you would at least review a Gallup poll and take it

into account in your analysis; would you not?

A. I --

MS. WALBURN: Objection, asked and answered.

THE COURT: It's been asked and answered.

MR. WEBER: Your Honor, I'd move the admission of the poll again,

AM002049, on the theory -- on the basis the professor said she would at

least review it and take it into account in connection with her work.

THE COURT: Under what rule of evidence is that, counsel?

MR. WEBER: On the fact that she's relied -- would take it into account

in forming her professional opinion.

THE COURT: She said specifically she would not rely on it.

Denied.

BY MR. WEBER:

Q. Gallup isn't the only organization that's interviewed smokers or

adolescent smokers as to why they believe they started smoking; is it?

A. No. I think there have been --

I mean if you're thinking of surveys, as I said, I reviewed hundreds of

documents -- or studies for chapter four of this report.

Q. And indeed, the federal government itself does that sometime; doesn't

it?

A. I suppose they do.

Q. And when they go out and interview; that is, when the federal

government goes out and interviews people about the reasons why they began

smoking, you don't know of any reason why people would not tell the truth;

do you?

A. Well first of all, the federal government usually gives people

grants, and then those people go out and do the surveying. I mean the

people, they don't come from Washington, D.C., or Bethesda, Maryland and

come out. And they usually give grants.

*16 We're not talking about the truth in this sense; that is, people

will -- will tell the truth for the most part. The real question is how much

do they understand? What do they perceive? Can they understand how the

larger social environment influences them?

And I've been speaking kind of abstractly, and I'll give you a kind of

concrete example that the -- if -- if the court permits -- permits, and that

is think of the way we eat as Americans. We eat in a certain way. We have

meat, potatoes and vegetables. That's an American meal. We think that's

pretty normal. Someone goes up to a child and says, "Why do you" -- well

they eat because that's what my family eats. And we really don't question

that until we go to a different culture. If you go to a different culture,

for example if you go to India, there are signs that say non-veg, because if

it -- if it doesn't have that sign non-veg, it means all the restaurants are

vegetarian. And it's so striking because we wouldn't even think how the

larger culture influences what's on our plate to eat. We wouldn't even think

of that until we're put in a different social environment.

Sorry to go on a little tangent, but I wanted to kind of explain more

concretely how that -- how that might work.

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

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.

THE COURT: Counsel.

MR. WEBER: Thank you, Your Honor.

BY MR. WEBER:

Q. Professor, I'd like to turn back to an exhibit we discussed a few

moments ago, I think it's at tab 19, and that was the Michigan -- if my

notes are right, that's the Michigan -- University of Michigan Monitoring

the Future study which is in evidence.

A. Yes.

Q. Have we got --

Do I have the right tab for you?

A. Yes. Thanks.

Q. Okay. I think about four pages in in that exhibit is the press

release the University of Michigan offered or -- or put out in December 19

-- December 20th, 1997, announcing the results.

A. Yes.

Q. Could you read the first paragraph of the press release on cigarette

smoking rates from -- I'm sorry, from -- this is December 20, 1997.

A. The first paragraph where it says "ANN ARBOR?"

Q. Yes, please.

A. "After six years of steady increase, cigarette smoking among American

eighth-grade students has leveled, and many even have -- and may have even

begun to decline, according to the most recent national survey of the

Monitoring the Future study. There is also is evidence that smoking rates

among the nation's 10th- graders may be leveling. Only among the

12th-graders is there clear evidence of a further increase in smoking,

continuing an upward march which began five years ago."

Q. Now professor, 15 pages, I think, behind that is the press release

that went with the other University of Michigan study that came out same

date, another press release with respect -- respect to the drug use

prevalence numbers. If it helps you, it's got the exact same format as the

one you just looked at. Do you have that?

*17 A. Yes.

Q. Could you read the first and second paragraph there.

A. "This year's results, based on the 23rd national survey in the

ongoing University of Michigan Monitoring the Future study, suggest that

while marijuana use continues its longer-term rise among older teens, use of

a number of other illicit drugs has begun to level off.

"'for the first time in six years, the use of marijuana and a number of

other drugs did not increase among eighth-grade students in the country,'

states Lloyd Johnston, principal investigator of the study, 'and while use

of marijuana may still be rising among 10th- and 12th-graders, their use of

a number of other illicit drugs appears to have leveled off.' Further, key

attitudes and beliefs about drugs that have proven to be important

determinants of use, began to reverse in many cases."

Q. Thank you.

Let me go back, then, to where we were before the break. And if you'll

remember, I was asking you some questions about whether the federal

government undertook efforts to go out and interview smokers, particularly

adolescent smokers, about their attitudes. Do you remember we just started

talking about that?

A. Yes, I believe we did.

Q. Okay. And if you would turn to tab five, please, which is AT000507.

A. May I make a comment?

Q. I'm afraid under the rules we can't do it that way. Unless you need

help with the exhibits where we put the book wrong. Obviously --

Now are you at tab five?

A. Yes, I am.

Q. And is that an official notice from the Department of Health and

Human Services, Food and Drug Administration, regarding regulations

restricting the sale and distribution of cigarettes, et cetera?

A. Yes, it is.

Q. And if you look at the top of the page that begins 61670 -- do you

see that, professor?

A. Yes.

Q. And this is from the Federal Register on Friday, December 1, 1995?

A. Yes.

Q. And this deals with the FDA's proposed rule-making regarding the sale

and distribution of cigarettes, as you see from the title there in the left-

hand column.

A. It's findings from the focus group of brief statements for cigarette

advertisements.

Q. All right.

MR. WEBER: Your Honor, I'd move the admission of Exhibit AT000507 as an

official government report from the Federal Register on December 1, 1995.

MS. WALBURN: No objection, provided this is the complete document.

THE COURT: Is that complete, counsel? Is that a complete document?

MR. WEBER: Yes. Yes, it is, Your Honor.

THE COURT: It is complete. All right. Then the court will receive A2 --

AT000507.

BY MR. WEBER:

Q. Now have you seen this document before, Professor Perry?

A. I believe I saw it. I haven't studied it. So if you want me to

respond to something, I'll need a little time to familiarize myself.

Q. Sure. You didn't look at it in connection with the designation list?

A. Yes, I looked at all the documents, but there were three full boxes

of documents. I couldn't -- that was just a few days ago. I couldn't study

each document. So that if you want me to give an opinion on this, I would

need time to read it.

*18 Q. Okay. If I ask you a question where you think you need to read

something else in this, please just let me know. All right?

A. Could I have a few minutes right now to review the document?

Q. You can. Although, you know, I -- I could also just go ahead and ask

you about the areas I'm asking you, and you can see whether you need

context.

THE COURT: Why don't you go ahead and take a few minutes.

THE WITNESS: Thank you.

A. Well I have a little bit of an idea what this is about.

Q. Okay. And what this document reports on are the results of a series

of focus groups that the FDA held and which FDA went around the country and

talked to adolescents; correct?

A. Yes, about what kind of warning labels, you know, that adolescents

might attend to.

Q. And they showed them advertisements and talked to the adolescents

about advertising as well; did they not?

A. Yes. I believe from my brief reading that they did do that.

Q. And if you'll turn, professor, to page 61671 in the right-hand column

there, I think it has a list of all of the different focus groups you'll see

that the FDA conducted around the country.

A. Ah --

Q. And --

Do you have that, ma'am?

A. Yes.

Q. And you'll see about halfway down that column, maybe a little less

than halfway, it notes that four of the groups, FDA focus groups, were

conducted in Minneapolis; correct?

A. Yes.

Q. Now if you would turn to page 61673, and if you would read paragraph

-- could you read paragraph one, please, of the FDA's general findings, as a

result of these focus groups in which they were speaking with teens, smokers

and non-smokers.

A. "All of the groups indicated that a high percentage of adolescents

will try cigarette smoking at some time during their teen-age years.

Estimates of the number of teens who will try smoking ranged from 50 to 99

percent. The major reasons given for why teens try smoking included: peer

pressure, doing something adults would not approve of, the perception of

smoking as "cool," curiosity, and being around parents, other family members

and friends who smoke."

Q. Now --

And then it's followed up with some quotations from some of the focus

group members; correct?

A. Yes.

Q. In this first finding, first general finding of the Food and Drug

Administration, based on the focus groups, they listed major reasons given

for why teens try smoking; correct?

A. They listed the major reasons that the adolescents gave. Those are

not necessarily the major reasons that kids start smoking, this is what the

adolescent --

Just like when I talked with you before about how we ask adolescents why

do kids smoke, they give us these same reasons. So this is a focus -- you

know, that's the focus group. So this is the adolescent perceptions, and

remember that they can only see things close at hand.

Q. But the major reasons given by the adolescents did not include

advertising; correct, professor?

A. It did not include advertising, although it says right on the first

page that all the groups expressed familiarity with the advertising that was

shown to them and many were aware of incentive programs sponsored by major

cigarette manufacturers whereby cigarette smokers would receive clothing

items or other products by cashing in Camel Dollars or Marlboro Miles for

product from the catalog. The focus group said they felt the primary target

of cigarette ads were teens and young adults, and that ads show people

having a good time so the kids will think that their lives will improve if

they smoke.

*19 Q. Now is the answer to my question yes, the major reasons listed in

general finding one by the Food and Drug Administration for why teens try

smoking did not include advertising or promotion?

A. Yes, it didn't include it, just as it's consistent with my testimony

yesterday that teens don't list advertising. They don't see it. So it's

quite consistent.

Q. And -- and that is consistent with your own research over the years

when you've talked to teens.

A. It's consistent that, as it says in the tobacco industry documents,

people in general don't understand how they're being, quote, unquote,

positioned. They don't understand --

That's how the tobacco industry documents refer to it as well, that they

don't understand how they're being positioned.

Q. So that is consistent with your research, that teens do not identify

advertising?

MS. WALBURN: Objection, asked and answered.

THE COURT: You can answer it, if you want to, again.

A. The major reasons listed here are generally what I hear from teens.

Q. Could you turn to the next page, professor, and read paragraph three.

A. "Most of the participants indicated that they do not believe that

they were influenced by cigarette advertisements.

"'I mean, it has nothing to do with the ads. They don't keep me from it,

nor do they make me do it.'

"'If -- If you're just flipping through a magazine and you see it, you

might stop and you might see something you don't -- you like about it, and

then flip on through. You don't really think of smoking or not -- not

smoking."'

Q. Now another source of information in this case, professor, on why

people smoke, is the depositions of the Medicaid recipients whose testimony

was taken. Have you reviewed any of those depositions?

A. No, I haven't.

Q. So you don't know what the deposition -- what the Medicaid recipients

who gave testimony in this case said about the reasons they smoked, at least

the ones who were smokers?

A. No, I don't.

Q. Were those offered to you by counsel?

A. I didn't ask for them.

Q. Were they offered to you?

A. I don't believe so.

Q. Did you know they existed?

A. I knew that some Medicaid depositions were being taken.

Q. Were you at all interested to know what Medicaid recipients had to

say about -- strike that.

Were you at all interested to know what Medicaid recipients who smoked

had to say about why they started smoking?

A. Not really. They're a small handful of people. They are going to be

influenced by cigarette advertising and promotion like other people. I

didn't see that a handful of -- of people -- I didn't see that they would be

any differently influenced than other people.

Q. And as I understand your testimony, you find it to be a more reliable

indicator -- strike that.

As I understand your testimony, you find more reliable evidence on why

people smoke from sources other than the smokers themselves; is that fair?

A. You know, we gathered data from a large -- different kinds of

sources, so we will gather data from never smokers, non- smokers, smokers.

My research is with adolescents, and so I will be looking at that whole

range. More sophisticated research lately also gathered data at the

community level or at the school level or at larger levels, and -- and that

can help also in looking at etiology. But for the most part, what I relied

on in chapter four were surveys of students.

*20 Q. I'm sorry, I want to make a note here on this one thing.

Now do you know whether those on Medicaid or GAMC here in the state of

Minnesota are more likely to present with a cluster of the psychosocial risk

factors that were discussed in the 1994 report than is the general

population?

A. I don't know for sure. I would imagine that they are poorer people,

less wealthy people, but I really haven't studied Medicaid.

Q. Would you turn -- I think it's page 123 in the '94 report right there

on your left, and that's your list of psychosocial risk factors, if you'll

remember, and -- and I just wanted to refer you to that to see if that might

refresh your -- or give you some further thought as to whether or not those

on Medicaid or GAMC here in Minnesota would present with more of a cluster

of risk factors than would the general population. It may or may not.

A. No, this chart wouldn't help with that at all.

Q. Okay.

A. And that really isn't my area of study.

Q. Now Surgeon General Elders in the '94 report, in that portion we were

talking about earlier, said that research suggested that tobacco promotion

had two major effects. Do you remember that?

A. Yes, I do.

Q. And one was the issue that creates a perception that more people

smoke than actually do; correct?

A. Yes, that's what's written here.

Q. Now on that --

I want to discuss that over-perception issue for a minute, which is one

of the two major effects of cigarette advertising identified by Surgeon

General Elders.

A. There were three in that, sir, but in this preface, you're right,

there are only two listed.

Q. The Surgeon General said there were two major effects; correct, in

that second-to-the-last paragraph?

A. Yes, that's in her preface, yeah, but that wasn't quite consistent

with our major conclusions.

Q. Well let's just talk about her viewpoint now. She said two major

effects, and one of them is over-perception.

A. That's correct.

Q. Right?

Now the '94 report did cite some research regarding over- perception;

correct?

A. That's right.

Q. And if you turn to page 132, I think that discusses a study by

Collins. Do you have 132?

A. Yes.

Q. And down in the second column under "Norms," professor, --

A. Yes.

Q. -- it discusses research by Collins. It says, "Previous smoking and

peer smoking were the main predictors of overestimates in the Collins

study." Correct?

A. That's what it says.

Q. Now --

And then in the last line there it said, "In part, these normative

expectations may be a function of these beginning smokers' actual exposure

to a disproportionate number of smokers, including adults and peers."

Correct?

A. Well what it says is "in part." I mean the other part, which we

discussed later in the Surgeon General's report, is that these overestimates

were related to exposure to cigarette advertisement. So this was in part.

And I'm not sure in the Collins et al '87 study, that she looked at any

indicator of advertising in that. But that's what it said.

*21 Q. Well it makes sense to you as an educator, doesn't it, that a

smoker who is more likely to have friends who smoke, more likely to have

brothers or siblings who smoke, more likely to be in a family that smokes,

more likely to have peers who smoke, it makes sense to you as an educator

that such a person would overestimate the prevalence of smoking in the

general population; wouldn't it?

A. Well it's not consistent with my experience, and I --

If you remember, Mr. Weber, that I have actually done this exercise in

hundreds and hundreds of classrooms, and it's not just the students who have

peers or parents who smoke that overestimate, the great majority

overestimate. In fact, in the fourth grade, young people believe that 71

percent or about two- thirds of adults smoke, even though, you know, it --

that's an overestimate by a factor of two, and certainly 67 percent of those

young people don't have peer and parents who smoke. So that can't explain

it. It just can't explain it all. And it's not consistent with my

experience, which is classroom after classroom after classroom of these

overestimates.

Q. Well at least Collins in the '94 report said, in part, the over-

perception may be due to the fact that the adolescent is with, sees, hangs

around, whatever, a disproportionate number of smokers. Do you --

A. Yes. And in part it may also be due to exposure to cigarette

advertisements.

Q. Now the converse is also true, isn't it, that those adolescents who

don't have smokers at home, whose friends don't smoke, whose peers don't

smoke, tend to underestimate the prevalence of smoking in society?

A. No, that's -- that's completely incorrect. It's the relative amount

of overestimate. Almost all adolescents overestimate the amount of smoking.

Virtually none that I have dealt with have underestimated the amount of

smoking. So it's the relative amount of overestimates.

Q. Bear with me just a moment, Your Honor. I'm sorry.

Didn't the Institute of Medicine report that you were part of say that

non- smokers underestimated the number of adolescents who had ever tried

smoking while regular smokers overestimated?

A. I cannot remember that, so I would need to look at that document.

Q. Now adolescents get their information on norms regarding the

acceptability of smoking from a wide variety of sources; do they not?

A. "Norms" meaning is it okay to smoke, how many people smoke. Most of

the time they measure it by the -- by these estimates of prevalence or

estimates of how many people smoke, that's how it's usually measured, but

it's also whether smoking is considered acceptable.

Q. But again, their attitudes as to whether or not smoking is

acceptable, as to whether it's normative or normal or accepted behavior in

society, those messages to adolescents come from a great variety of sources;

do they not?

A. Yes, they come from -- they can come from the whole social

environment. But obviously a powerful source is going to be something as

pervasive as cigarette advertising. I think it's -- it's the -- probably the

only source that gives a consistently positive message about cigarette

smoking.

*22 Q. Well it's not wholly positive; is it? Each ad carries a warning

of serious health consequences; doesn't it?

A. Well the warning label is so small and really hasn't shown to be very

effective.

Q. The warning label is the size the Federal Trade Commission says it

should be; isn't it?

A. Yes, but it hasn't been shown to be effective.

Q. Have you ever written to the Federal Trade Commission, told them they

need to make a bigger warning?

A. No. I believe we discussed that a bit in the Surgeon General's

report, but I haven't personally done that.

Q. Now --

And you discussed a few moments ago the importance of community and

schools' involvement. That's part of the whole social fabric that helps set

norms about tobacco use; correct?

A. Yes.

Q. And to be sure, you know of no adolescent whose only information on

smoking or the norms of tobacco use comes from the cigarette companies;

right?

A. Virtually all adolescents are exposed to cigarette advertising and

promotions, which, except for the small warning label which is completely

overshadowed by positive and attractive images, gives an overwhelmingly

positive picture of -- of cigarette advertising and promotion. These other

parts of the community may also give messages about cigarette smoking, but

they're not going to be positive or consistently positive.

Q. Do you --

Let me just make sure I understand. You know of no adolescent whose only

information on smoking or the norms of tobacco use comes from the tobacco

companies; correct?

A. You know, I deal with population, with communities of adolescents.

You know, I can't say whether an individual --

I can say adolescents in general are highly exposed to positive messages

about cigarette smoking from cigarette advertising and promotional

activities. Virtually every adolescent is exposed to these.

Q. So you just --

The way I'm asking that, you just can't answer that.

A. It's not the way I'd look at the picture.

Q. Could you turn to page 130 of your deposition, please, and at line --

beginning at line eleven, let me ask do you remember being asked this

question and giving this answer:

"Let me ask my question again: As you sit here today, do you know of any

adolescent whose only learning about smoking has come from tobacco industry

ads?

"Answer: I don't know any adolescent whose only source of information

has come from the tobacco industry."

Was that the question you were asked and the answer you gave then,

ma'am?

A. Well yes. We went back and forth on the same exact question, and

that's what I said.

Q. Thank you.

Now among the sources from which adolescents get information on the

norms of tobacco use would be their parents; correct?

A. Parents generally disapprove of adolescents smoking. They may model

-- as I mentioned yesterday, they may model cigarette smoking, they may also

model the health consequences. Overall parents don't want their children to

smoke.

*23 Q. So they do --

Children do get information about the norms of tobacco use from their

parents.

A. They generally get information from their parents that their parents

would disapprove of smoking.

Q. And they get that information from their parents by through what the

parents say and what the parents do; correct?

A. Yes, they might.

Q. And they get information on the norms of smoking also from older

siblings; do they not?

A. You mean of whether smoking is acceptable behavior?

Q. Whether it's acceptable behavior.

A. Siblings might model that behavior or not. But I think we need to go

back and remember that parental smoking is not a very strong predictor of

adolescent smoking, and sibling smoking is associated with kind of peer

smoking. So, you know, we're -- we're kind of going in a round-about way of

-- of norms, and, you know, you're asking questions that really haven't been

researched.

Q. So it hasn't been researched, whether adolescents get information

about normative behavior from their older siblings about smoking?

A. You mean whether -- they'll get -- they'll get --

There's been some information as to whether would your -- would your

brother or sister approve, would your mother or father approve. That hasn't

been very predictive of adolescent smoking behavior.

Q. Even aside from the research, isn't it just common sense, professor,

to you as an educator, that the attitudes of older siblings will give

information to the younger siblings, both through what they say and what

they do?

A. Yes. But it can go in either direction. Just as I said yesterday

about parents, a parent may model smoking behavior and that might have an

influence, or the -- the parent may model the consequences of smoking

behavior and that will also have an influence. The same is true for

siblings.

Q. I didn't mean to imply in my question that the information had to be

disapproval of smoking. And -- and maybe I did, and if so, I apologize. I

was just asking whether the younger siblings get information about what's

acceptable and what's not acceptable through a number of sources, and one of

those sources being the older brothers and sisters and what they say and do?

A. I imagine to some extent. I don't think there's really much research

on that though.

Q. But it makes sense to you as an educator; right?

A. It makes some sense.

Q. Now they also get information on what's acceptable behavior and

what's not acceptable behavior regarding smoking from their close friends

and peers; correct?

A. Yes, they do. That's probably a more powerful source than parents or

peers -- or parents or sibilings.

Q. I'm sorry.

A. Parents or siblings.

Q. I'm sorry, I may have stepped on your answer. Did -- did you finish?

A. Yes, I did.

Q. Okay. I'm sorry.

Now adolescents also get information on what's acceptable or

unacceptable regarding tobacco use from the schools; do they not?

A. Well they receive smoking education and there are smoking rules.

Whether that affects their normative beliefs, it might be -- it --

*24 There's been some indication that since we have smoke-free schools,

and in fact Minnesota was one of the first states with smoke-free schools,

that that did have an influence on adolescent smoking behavior. So it could

affect at least their behavior.

Q. And Minnesota schools, as a matter of fact, have taught about the

risks and dangers of smoking for generations as part of their health

curriculum; haven't they?

A. Are you referring to a particular document?

Q. No. I'm just --

As a general matter, do you know as an educator and professor here at

the U of M that for generations the Minnesota public schools have included

as part of the public health curriculum for students information about the

risks and dangers of cigarettes?

A. Well Minnesota has always been a leader in smoking prevention, so I

would imagine that they -- I came here in 1980, but I imagine they had been

a leader in smoking education as well. But if you remember from my

discussion yesterday, that even if adolescents know the risks of smoking,

that that has very little to do with their behavior. They can't comprehend

those risks. Those risks are remote and not really consequential to them.

They -- they really can't act on those.

So the schools in Minnesota, yes, taught about the risks, but that, like

most of the education around smoking in the country, until recently really

didn't have any effect on their behavior.

Q. And indeed, youth engage in a number of behaviors that are risky even

though they know the dangers that may be involved; isn't that right?

A. Youth, as I said yesterday, youth engage in a number of -- of risk

behaviors in order to try to accomplish their developmental task and because

they don't understand the consequences of it.

Now as we saw yesterday, the tobacco industry knew -- knows that

adolescents take risks, they know that, and they use that knowledge to

create their cigarette advertising. So they actually exploited the fact that

adolescents take risks. If you can even think of, you know, the ads that --

with the blonde or the running into the water and carrying her out, I mean

that is kind of risky behavior that was exploited in that advertisement.

Q. And I think you referred yesterday to some risky behavior in a Camel

ad where they were playing cards. Do you remember that? You said that was

risky behavior to take.

A. I think I said that it suggested some -- you know, suggested risk

when Joe Camel was with his peer group and -- and the main point of that ad

was that it -- that it was really targeting the peer group and showing that

if you smoke Camel, you'll be part of the in-group, you'll be cool. And of

course if you play cards, you are at perhaps some risk if you lose enough of

your pennies.

Q. So to you, in your review of that advertisement, the fact that they

were playing cards suggested risky behavior; is that right?

A. I thought that was a slight part. But really the overall, the main

thing I was -- I found from that advertisement was Joe Camel and the peer

group having a good time and smoking associated with the peer group. The

risk behavior of playing cards was a little afterthought.

*25 Q. But you did mention that yesterday; didn't you?

A. I did mention in it, but it really wasn't a major part of my analysis

of that ad really. That was -- the major was the peer pressure, peer group

ad.

Q. Do you think card playing is a risky behavior for either adolescents

or adults?

MS. WALBURN: Objection, asked and answered.

THE COURT: No, you may answer that.

A. I suppose you could lose a few cents. So -- but I -- I don't think

that for the most part playing cards is a health- compromising behavior,

which is how I tend to define it in my class, so I don't think it was really

-- it just had a suggestion of risk and -- and -- but it's not really -- I

-- I really don't think it would be health-compromising.

Q. Have you done --

I take it the answer may be no, but let me ask just to make sure the

record is clear. Have you done any study of what the public schools in

Minnesota have taught and for how far back they've taught it about risks of

tobacco and about whether adolescents should smoke?

A. I've done some studies in -- in --

I've done lots of studies in schools in Minnesota having to do with

smoking, but, you know, I -- I don't really know what you --

You mean have I done a historical analysis of --

Q. Yes, I'm saying --

A. No, I have not done a historical analysis of -- of what's been taught

in Minnesota schools.

Q. Now I think from what you said a minute ago, you'd agree that schools

instruct about norms on tobacco behavior in their policies about smoking,

both for teachers and for students?

A. Yes. And as I said, Minnesota was really a leader in that area.

Q. And rules that prohibit smoking in schools send a message?

A. Rules that are --

Yeah, rules do send a message.

Q. And enforcing those rules sends a message as well; right?

A. Yes. However, when it comes to smoking in schools, really for many

decades smoking was -- was allowed in -- in schools. There was a smoking

section. And this was -- was true throughout the country. It was really only

in the last two decades that -- that that -- that that really changed. And

in fact I -- Minnesota was probably the first state that enacted that

schools would be smoke-free. And one of my studies, which was done in

Minnesota, California, Texas and Louisiana, part of our study was to create

smoke-free schools, and the study started in 1990, and Minnesota, out of all

those states, was the only state in which we already had that in place, that

there was no smoking in schools. So California, Texas and Louisiana still

had smoking going on in schools. And that was really because school

administrators just didn't want to deal with smoking as a -- as a discipline

problem, and so they had smoking areas. And now people have come along quite

a ways on that, and -- but there's still many parts of the country that

aren't like Minnesota where -- where kids smoke in schools.

Q. And views on issues like that have changed over the past 20, 25

years; have they not, professor?

*26 A. Well --

Q. Much less tolerance now?

A. Well I can think in Minnesota there's less tolerance. I'm not sure

that's true throughout the country.

Q. Are you aware that back in 1973, I believe, about 25 years ago,

Attorney General Humphrey, when he was in the state legislature, sponsored a

bill to create smoking rooms in Minnesota high schools?

MS. WALBURN: Objection to the form of the question and outside the scope

of the direct testimony.

THE COURT: If you're aware of it, you can answer.

A. I've --

I think a document was passed by me, but I didn't really study that

document.

Q. Could you turn to tab six, which is BYS000021. Now professor, do you

have -- do you see the document there with the -- it's labeled BYS000021 in

the lower right-hand corner of the first page?

A. Yes, I do.

Q. And on the first page it says "TRIPLICATE S.F. No. 2448?"

A. Yes.

MR. WEBER: Your Honor, I move the admission of this document under

803(16) as an ancient document, it's dated 1973, under 801(d)(2), under

803(8) as a public record, and it's also a self-authenticating document

under 901(d).

MS. WALBURN: Objection to the use of the document with this witness.

There's no foundation that's been laid. It was only presented to her as part

of the defendants' designation of several boxes of documents.

THE COURT: Well I'll receive the BYS000021.

MR. WEBER: All right.

BY MR. WEBER:

Q. Professor, would you turn to the first page of that, and do you see

there that one of the sponsors was Senator Humphrey?

A. Yes, I see that.

Q. And then if you go to the next page, could you read section one.

A. "Notwithstanding the provisions of Minnesota Statutes 1971, Section

609.685, or any other law to the contrary, any public secondary school may

designate a public smoking area within its confines which may be used by

students either 18 years of age or older or by students having presented

school authorities with a written consent, on a form to be prescribed by

school authorities, signed by a parent or guardian."

Q. Now that bill did not pass, but does the fact that such a bill was

introduced in 1973 that would have allowed smoking in school as a matter of

state law tell you anything about whether there's been a substantial change

in attitude about the norms of smoking in Minnesota over the past 25 years?

MS. WALBURN: Objection to the form of the question.

THE COURT: You may answer.

A. First of all, this didn't pass. Second of all, the -- I believe, you

know, Mr. Humphrey was trying to make sure that the people smoking at school

weren't smoking in the bathrooms, weren't smoking in the halls and so forth.

This was the exact time in California when I was a teacher, and smoking was

going on everywhere. So I think I -- I believe his intention was to make

sure there was parent permission for smoking and -- and have smoking 18

years of age and -- and older.

We have, I think, as a state -- obviously it's progressed since then,

and I'm not sure that reflects norms. I'm not sure it reflects norms, but

perhaps even greater recognition of the health hazards of smoking, and

certainly the relationship that -- or the recognition that adolescents are

the primary people who become smokers, that they become addicted during

adolescence and become life-long smokers. So I don't think that connection

on all those issues was as well understood at this time in the early '70s as

it certainly is now.

*27 And as I've said before, you know, Minnesota was -- was and is way

ahead of other -- of other schools -- of other states in -- in all these --

in all these areas.

Q. In terms of its knowledge and acceptance of the health risks of

smoking, among other things?

A. Well in terms of its enactment of laws that will -- you know, that

will maintain the health of Minnesotans. We were the first state to have a

Clean Indoor Air Act. We were the first state to have a large tax increase

with part of that going to educating the public. And we were the first state

to have a teen- age -- a comprehensive teen-age access law. So Minnesota was

ahead in terms of its -- its legislation. I believe it was the first state

on the teen- age access law. We're among the first in, anyway.

Q. Now is it fair to say that back in 1973, attitudes with respect to

matters such as whether kids should smoke in school were different than they

are here in the late '90s?

A. I think that there were -- I believe there was more acceptance of

smoking in schools then, and that that was not related as much to norms as

it was to our general knowledge in the -- in the -- in the field of smoking.

Q. And when evaluating matters such as this bill to allow smoking in

school, it's unfair to take our 1998 mentality and -- and go back and look

at a 1973 action; isn't it?

A. Well I think we can go back and -- to that and say, you know, I think

we can look at that and say, you know, that was -- that we probably

shouldn't have been doing that.

Q. But in terms --

To be fair to Senator Humphrey, then, we have to go back and put that

event and that document in the context of it times; don't we?

A. Well the first Surgeon General's report came out in 1964. We -- we

probably knew enough that we shouldn't have been allowing young people to

smoke. You know, I'm -- I'm glad the bill didn't pass.

Q. But wouldn't you agree with me that if you're going to go back and

evaluate actions taken by Senator Humphrey or anyone else 25 years ago, you

need to put those events in a historical context and not engage in 20/20

hindsight?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer.

A. I have no other thing to say on this. I said -- I said my answer.

Q. Well this question was different. I'm sorry, professor. This question

was: Wouldn't you agree with me that if you're going to go back and evaluate

actions taken by Senator Humphrey or anyone else 25 years ago, you need to

put those events in a historical context and not engage in 20/20 hindsight?

A. I'm not sure. I'm really not sure.

Q. Do you think it's fair to go back and evaluate events of 25 years ago

with today's mindset without taking into account the situations that

presented people at the time?

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer that.

A. You're speaking in hypotheticals, and I really can't -- that's why I

say I'm not sure. I -- if you give me a concrete --

*28 You gave me a concrete example here and I gave you an answer. I

don't want to -- to speculate, you know, that's -- that's why I said I'm not

sure.

Q. Could you turn to Plaintiffs' Exhibit 11801 and I think '802. There

were a pair of them that were connected, professor, 11801 and '802.

THE COURT: One more book and I won't even be able to see the top of your

head.

(Laughter.)

THE WITNESS: I'll have to sit on them.

A. Yes, I see this.

Q. Do you have that?

A. Yes, I do.

Q. And do you remember discussing that document, I believe yesterday in

your testimony?

A. Yes, I do.

Q. And this was a survey that Philip Morris did that included

information on people 12 to 17 years old, I believe?

A. Yes, it was.

Q. You see the date on that?

A. Yes. 1973.

Q. May 18?

A. Right.

Q. That's about a week and a half after Senator Humphrey addressed --

introduced his bill into the Senate to create smoking rooms in Minnesota

high schools; correct?

A. This is May 1973.

Q. And Senator Humphrey's bill was May 1973; was it not?

A. I don't really remember the exact date.

MR. WEBER: Just to make it easy, may I approach, Your Honor, rather than

look in another book?

(Document handed to the witness.)

Q. You can have that copy just for a minute.

Do you see the date on there, professor, for the introduction of the

bill?

A. Yes.

Q. And it's about a week or 10 days from the date of the Philip Morris

document?

A. Yes.

Q. Okay. So this Philip Morris document was prepared at a time -- in the

same timeframe as the bill was introduced to allow smoking rooms in high

schools in Minnesota; correct?

A. This was at a time which was nine years after the cigarette

advertising and promotional code was adopted by the tobacco industry and

said that you would -- that you, the tobacco industry, would not advertise

in any way to people under age 21, and this document is nine years after

that and it includes data on 12- to 17-year-olds, and then the accompanying

document has a lot of demographic information on boys and girls and -- and

what grade they completed and whether they were white collar or blue collar,

and, you know, the -- you know, this is --

You know, this doesn't have to do with norms, this has to do with

violating what you said you would do. You said that you wouldn't be looking

at people under age 21. You know, this is data on 12- to 17-year-olds. This

is at a time when Philip Morris was doing very well with Marlboro. I can't

see the comparison between this and Mr. Humphrey's bill at all.

Q. Could you answer my question, professor, which was: So this Philip

Morris document was prepared at a time -- in the same timeframe as the bill

was introduced to allow smoking rooms in high schools in Minnesota; correct?

MS. WALBURN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. Now you said yesterday with respect to this Philip Morris document

that this data would be useful in selling cigarettes. Do you remember that?

*29 A. Yes, I do.

Q. Now as you told us earlier, you have never been involved in creating,

developing or implementing a marketing plan for consumer products; correct?

A. Yes, I -- I want to expand on that a little bit, because now I've

looked at quite a number of marketing documents and I hadn't looked at -- at

a lot -- at marketing documents prior to this -- to this case, and what I

found in looking at the marketing documents is that they are very similar to

the kinds of documents I prepare to do my large community-wide

interventions; that is, we have a goal, we have objectives, we have a target

group, we have a main theme, like if it's the Marlboro Man, or we have our

own, and we have a multi- component strategy. So the marketing plans that

the tobacco industry produces are similar to the kinds of intervention or

educational, large educational plans that I do, it's just that we have

different goals; whereas I want to get kids not to smoke, they try to get

kids to smoke.

Q. Can I ask --

Can you answer my question, professor? You have never been involved in

creating, developing or implementing a marketing plan for consumer products;

correct?

A. As I explained, what I do is very similar to marketing, sometimes

called social marketing, and as I said, I believe yesterday, that I haven't

done that in the private sector.

Q. Okay. So the answer is no, you have not created, developed or

implemented a marketing plan to consumer products; correct?

MS. WALBURN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. Now do you know that in 1973, when Philip Morris wanted to develop

marketing plans, it ran focus groups on the smokers that it wanted to market

to?

A. Not that I can remember.

Q. Did you get from the plaintiffs' counsel focus group research on any

marketing plans?

A. Yes, I looked at a lot of focus group research, but I don't remember

a particular document at this particular time.

Q. And isn't it consistent with what you do know that marketing plans

were not developed and no marketing campaign was taken to market until focus

group research had been conducted?

A. I don't know that. I know that you did do -- that Philip Morris did

do a focus group discussion or Roper did a focus group or an interview with

-- with people as young as 14 and -- and under, and that the recommendation

was to continue to market to youth, and so that was a kind of survey done by

Philip Morris. You know, for the most part I -- I would say that you would

do focus groups prior to a marketing campaign, but I don't remember having

viewed one right at this time. But I looked at hundreds of documents.

Q. Now I'm a little bit mixed up. Let me ask this question. You just

referred to Roper.

A. Yes.

Q. Right? That's a survey. That was a survey; wasn't it?

A. It was an interview with 1050 people under the age of 22, and I

believe under -- almost a thousand were under age 18.

Q. And that was a survey; wasn't it?

*30 A. It was --

Q. Where --

A. -- an interview to see how Kool was doing. They were worried whether

-- Philip Morris was worried whether Kool was going to start capturing the

youth market, and so they were trying to get information from young people,

under-age people about Kool and how Kool was perceived and how Marlboro was

perceived.

Q. You know the difference between interviews and surveys on the one

hand and focus groups on the other; don't you, professor?

A. Yes. I think they're -- they're different forms of getting

information.

Q. And you know that cigarette marketing campaigns were not taken to

market until after they were focus grouped with the people that the

companies wanted to serve as the focus for the marketing; right?

A. No, I don't think I'd agree with that.

Q. And in focus groups, what the marketers do is they show advertising,

product attributes, packaging, et cetera, to groups of smokers; correct?

A. Well I also saw focus groups with -- with young people that weren't

smokers that we didn't discuss in this because they were from -- from RJR

McDonnell.

Q. RJR McDonnell?

A. I think.

Q. You didn't talk about that yesterday; did you?

A. No, no, because it's from another -- from Canada.

Q. Okay.

A. So I think some focus groups --

Well for the most part, the focus groups, the research that I saw, was

done with smokers.

Q. Indeed, you haven't seen any focus groups from any of these

defendants that were done with anything other than smokers and smokers who

were 18 and over; have you?

MS. WALBURN: I'm going to object to that question as beyond the scope of

discovery since third-party advertising agency documents were not produced

by defendants.

THE COURT: Sustained.

Q. You did see a number of focus group documents; correct? I think you

said that just a few moments ago.

A. I did see some focus group documents.

Q. And you saw no focus groups that included people under the age of 18;

did you, professor?

MS. WALBURN: Same objection, beyond the scope of discovery.

THE COURT: Sustained.

Q. This Philip Morris document doesn't include any information

whatsoever with respect to attitudes, product likes, product dislikes; does

it?

A. This document shows the -- you know, how many boys and girls smoked,

how many they smoked per day, what ages they were smoking, what -- where

they lived, whether it was metro or in large urban areas, what their

occupation was, and, you know, whether they were white or non-white, so this

was demographic information that might be useful in marketing, or at least

knowing about a target group.

Q. My question was, professor: This Philip Morris document doesn't

include any information whatsoever with respect to attitudes, product likes,

product dislikes; does it?

A. This particular document just has data on -- on how many -- on how

much adolescents smoke, what their average consumption is.

Q. So the answer is it doesn't have anything about attitudes, product

likes or dislikes; right?

*31 A. This document doesn't, but other documents do.

Q. And that's the kind of information, attitudes, product likes, product

dislikes, that's the kind of information you find in focus group research;

correct?

A. Or you find it in survey research, which you did with - - which the

tobacco companies did with people under age. You can find out a lot about

attitudes by interviewing 1050 people.

Q. Did you see any survey results or interview results that tested

product ideas and product attributes with people under age?

MS. WALBURN: Same objection, beyond the scope of discovery.

THE COURT: Sustained.

Q. With respect to what you did review -- and you said you reviewed a

number of surveys; right?

A. Yes, I did.

Q. With respect to what you did review, did you see any survey results

or interview results that tested product ideas and product attributes with

people under age?

MS. WALBURN: Same objection.

THE COURT: Sustained. You'll have to rephrase that, counsel. I mean you

can ask the question if you rephrase it.

Q. Did the survey results or interview results that you did review

contain information about product ideas and product attributes discussed

with people under 18?

A. I believe there was -- I believe the answer is yes, but since I

reviewed so many documents, I would need to look back. I remember one

Lorillard document with newly started people, newly started smokers, they

didn't have a lower age limit. They were talking about products. Also,

really a lot of the documents talked about brands, what brands were they

smoking, and that seemed to be important for market decisions as -- as well.

It wasn't just how many are smoking, but what brands and sub-brands, lines of

brands they were smoking.

Q. But my -- my question is: With respect to the documents you did

review, did any of those surveys or interviews test product ideas, product

attributes, not just brand names, but test product ideas and product

attributes, test product advertising with people under 18?

A. Well I can't remember. But I do remember that a number looked at

people who were 18 to 20 or 18 to 24, and if you're looking at someone 18,

you're going to find out a lot about how high school students are thinking,

and since the advertising is supposed to be aimed at 21 and over, if you

have 18-year- olds, 18-year-olds are in high school with 17-, 16-,

15-year-olds, so doing focus groups with 18-year-olds is a pretty good way

of finding out what's going on with high school students.

Q. And you said yesterday, I believe, that 18 wasn't a magical date. Do

you remember saying that?

A. Yes. I said that the day of your 18th birthday, you're most likely in

high school.

Q. And --

But you did say it wasn't a magical date; right? Remember that? I think

that was your language.

A. I think so.

Q. While it may not be magical, you would agree our society treats

people who become 18 different from those who aren't 18, who are under 18;

correct?

*32 A. Well in some instances, but I think in this instance we're

talking about a dangerous product, cigarettes, so we want to be particularly

prudent. In fact, I believe Mr. Schindler said the other day in his

testimony that there should be a buffer, that there should be a buffer time,

18 to 21, where you don't do any advertising or -- or promotions. He -- he

really believed that. And that that 18-year-old is a lot like a high-school

student.

Q. Were you here for Mr. Schindler's testimony?

A. Yes, I was, for part of it.

Q. My question was that society does treat people differently, doesn't

it, as of the day they turn 18? Aren't there a number of legal consequences

to turning 18?

MS. WALBURN: Objection, asked and answered.

THE COURT: Well, it's a little different question.

A. There's a lot of different cutoff points in our -- in our society. At

18, yes, you can join the Army, which you tend to do after you leave high

school. You don't -- you know, your birthday isn't in March and you turn 18,

then you quit school and go into the Army. You wait until you're done with

high school and then you go into the Army. We don't vote until we're age 21.

We don't drink until we're age 21. So we have different ages for different

things in our society. And it seems to me that age 21 was the age selected

by the tobacco industry as being the age of maturity. That is the age that

the tobacco industry decided on in 1964 and kept reiterating, kept saying

over and over again, age 21 is the age of maturity, not age 18.

Q. Now you can join the Army when you're 18; right?

A. Well I can't, but people can join the Army when they're age 18.

Q. And you can vote when you're 18; can't you?

A. I'm not sure. I thought you had to be 21 to vote.

Q. Well you've studied adolescents these number of years. Do you know

whether adolescents who are 18 are given the right to vote?

A. It's -- it's escaping me right now.

Q. Do you know whether they have the right to vote for president,

representatives and senators?

A. No, I believe that's age 21.

Q. You know society says when you reach 18 you're fully competent to

leave home and no more parental authority; correct?

A. As I said, there are different ages for different stages. You know,

we don't allow drinking until age 21, for example. I mean there are

different ages. And in the tobacco industry documents, it's your -- it was

your, the tobacco industry, that said age 21 is the age of maturity. Age 21

and over is who you should be advertising to. Age 21 and over is who you

should send your promotions to.

Q. My question was, professor: You know that society says when you're 18

you're fully competent to leave home and be done with parental authority;

isn't that right?

A. Well I don't really know that language.

Q. And society, including Minnesota society, says that when you're 18,

you can walk into a store and legally buy a pack of cigarettes; right?

A. At 18, yes, you can legally buy a pack of cigarettes.

*33 Q. Have you suggested to the Minnesota legislature that they ought

to raise the age at which cigarettes can be purchased?

A. I haven't personally done that, no. However, in the Surgeon General's

report we suggested that the age should be raised at least to age 19 so that

people were out of high school. Because if you are 18, you mostly turn 18

when you're in high school, so that means your friends are in high school.

So that was one of our -- our recommendations or -- in the Surgeon General's

report.

Q. Did you know that up until 1963, the law in Minnesota provided you

had to be 21 to buy cigarettes?

A. No, I didn't know that. I thought it was 18 back to like 1897. So

that's --

Q. And did -- I'm sorry.

Did you know that they reduced the age because they found that not

enforcing that led to widespread disregard for the law?

MS. WALBURN: Objection to the form of the question.

THE COURT: Sustained.

Q. Now the 1994 Surgeon General's report cited a number of studies,

didn't it, that suggested stronger enforcement of state laws forbidding

sales to minors?

A. Can you refer me to a particular page?

Q. Why don't we start with page 248. Up in that upper right-hand column,

professor, could you start with that first full sentence in the right-hand

column that begins with the word "Adding," and could you read the rest of

that paragraph.

A. "Adding legal sanctions to the purchase of tobacco will deter those

young people who are unwilling to break laws to obtain tobacco and will add

to the perceived social unacceptability of tobacco use. Two cross-sectional

studies provide preliminary evidence that suggests a negative relationship

between tobacco access and tobacco use among young people. Controlling the

sale of tobacco to minors emphasizes the dangerous nature of tobacco

products and places tobacco appropriately in the category of regulated

products. These measures also reinforce and support the messages about

tobacco that young people receive in school and other settings."

Q. Now could you turn to tab seven of your binder, professor, which is

AM000281. Do you have it?

A. Yes, I do.

Q. Is AM000281 an article by some -- several colleagues of yours?

A. Yes, it is.

Q. At the University of Minnesota?

A. Yes, it is.

Q. And they're reliable researchers; are they not?

A. Of course.

Q. And this is the kind of article that you take into account when you

think about your prevention policies that you're working on; correct?

A. This was a very -- maybe one of the first articles on sources of

cigarettes. One of the reasons that it -- it was so important was it was

really a very early article in -- on this subject area.

Q. And you've read this before.

A. I have read it before. I haven't studied it recently, but I -- you

know, I saw that it was in the documents.

MR. WEBER: Your Honor, I'd move the admission of AM000281 as a learned

treatise.

MS. WALBURN: No objection.

THE COURT: Court will receive AM000281.

*34 BY MR. WEBER:

Q. Now what this reports upon, does it not, professor, is, among other

things, there was a phone survey to various police departments in the state

of Minnesota asking questions about how youth got cigarettes? Do you

remember that?

A. No, I don't remember that. I thought this was a survey of 10th

graders.

Q. Could you go to the --

Well there -- there are several different, I think we'll see when we go

through, several different research issues in here. But could you go to the

page labeled 48.

A. Forty-eight?

Q. And in the right-hand column, could you read the last full paragraph

that begins "Though...?"

A. "Though a restrictive law has been in effect in Minnesota since 1961,

and most of these teen-agers knew the law, few reported having been

challenged in attempts to purchase cigarettes. Systematic records are not

kept in Minnesota regarding prosecution for sale of cigarettes to minors,

but an informal phone survey of police officials in several Minnesota

municipalities revealed that no one could remember an instance where the law

was enforced."

Q. Now part of the norm, the societal community norm about acceptability

of youth using tobacco is set by whether or not laws are enforced; correct?

A. Well in this case, in this study, which was done in 1989 -- and it

was probably the first study that looked at teen- age access to tobacco --

they did -- they alerted the public that in fact teen-agers do have access

to tobacco. This, then, started community action to make access to tobacco

more restricted. It began with a program in White Bear Lake, the first city

in the whole country to ban cigarette vending machines; it went on to Ramsey

County where there's very -- very good access laws; it then went to the

state level where for three consecutive years there was legislation in front

of legislators to enact legislation that would prevent teens from having

access to tobacco, and in -- and in each of those years it was heavily

lobbied against by the tobacco industry; and finally last year the best

teen-age access prevention bill went into place, the best in the country. So

this article was a very important article in getting that going.

And I think this issue about enforcement, part of the problem at this

point was that if you -- if -- that the bill read that if someone sold

someone a cigarette -- a pack of cigarettes, then they could be prosecuted,

and I believe that was in criminal court. Now nearly half of the people that

sell cigarettes in these convenience stores are themselves under 18, so the

police don't want to put an under-18-year-old into jail for selling

cigarettes. That's why the access bill was so important, because it took it

out of the criminal court and put it into -- into the place where the people

who actually owned the convenience stores get fined, so there's a money

attachment to it. So there -- the lack of enforcement -- and some of these

had to do with who was selling the cigarettes, and the fact that police

didn't really want to be throwing under- age kids in -- in jail for that.

*35 Q. Okay. Can we go back to my question, ma'am? Now part of the norm,

the societal community norm about the acceptability of youth using tobacco

is set by whether or not laws are enforced; correct?

A. Well the norms, that can contribute to norms, and that certainly, you

know, could be -- could be happening. I really don't know the relationship

between access and norms. Obviously, if teens have less access, commercial

access to cigarettes, that puts a barrier between teen-agers and cigarettes.

Q. Does it send an inconsistent message to youth if laws exist that say

they can't buy cigarettes, but the laws are not enforced at all? Does that

send an inconsistent message about what the community norm is?

A. It might send an inconsistent message. And -- but that's been true

for many years. I mean -- and really I don't think people knew about it.

This -- as I said, this article made it was -- it was issued in 1989, people

really didn't know that youth had easy access to cigarettes. It -- it really

wasn't part of the -- the issue at that point.

Q. In 1989?

A. No, up to 1989 people didn't really realize that young people had

such easy access, or at least in the -- in the research community.

Q. So let me see if I understand this. Up until 1989 the research

community didn't realize that youth had easy access to cigarettes?

A. Well --

MS. WALBURN: Objection, asked and answered.

THE COURT: You may answer.

A. They didn't know to this -- to this extent. This is one of the first

studies that really looked at it systematically.

Q. Well it wasn't just in 1988 or 1989 that people thought under-age

smoking was a problem; was it?

A. No, of course not.

Q. We saw some studies going back into at least the early '70s today;

right?

A. Yes, we did.

Q. And where did the research community think all these under-age people

that they were worried about and analyzing and writing about, where did they

think they were getting their cigarettes?

A. Well you know, during the early '80s there was a much bigger focus on

peers, and so that was really the focus of -- of the research. And -- and

then, you know, as I said, this became a very important issue because it

came to light. You know, it's a way of how is the -- how is the problem

viewed? And -- and as I said yesterday, people viewed the problem of -- of

teen-agers of, well, do they know the health consequences? And then they

said, okay, now we need to look at social influences. And this began the

process of also looking at teen-age access.

Q. Well again my question is: The research community thought there was a

problem about too many under-age kids smoking and thought that for at least

a couple decades before '88 or '89; right?

A. The research community was pretty focused, as I mentioned earlier

today, on the demand side of the equation; that is, peers, advertising; not

so much on the supply side of the equation, convenience stores and how the

tobacco industry makes convenience stores more attractive to young people.

So the research community focused primarily on the demand side.

*36 Q. Well let me ask again the question I asked earlier but I'm not

sure I got an answer. Where did the public health community or the research

community think under-age youth were getting their cigarettes?

MS. WALBURN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. You had said that the focus was on peers; right, back in that period?

A. The focus of the prevention programs were on social -- the social

influences and -- and particularly looking at the importance of peers.

Q. Was it -- was it assumed by those involved in this research that

under- age youth were getting their cigarettes from peers?

MS. WALBURN: Object to the form of the question.

THE COURT: No, you may answer.

A. I'm not sure we assumed anything about that. We were focusing in on

reducing demand at that point, and that is sort of the -- the basis. If --

if a young person doesn't want to smoke, you know, that -- you know, that's

reducing demand.

Q. If a young person doesn't want to smoke, they're not going to smoke;

right? Isn't that --

A. Well that's a misstatement. That's a misstatement.

Q. Think there are a lot of young people out there who start smoking

because they don't want to start smoking?

A. I think people --

There are a lot of young people who start smoking without knowing the

consequences of their behavior.

Q. But when they start smoking, it's not that they don't want to start

smoking. They're saying I do want to start smoking; right?

A. They don't say that. It's generally in the context of - - of a friend

or friends, and they perceive that it's going to be functional for them at

that point.

Q. And as you said, when they do start smoking, it's generally in the

context of a friend or friends; right?

A. Generally it is.

Q. Now you know that Attorney General Humphrey has stated that

enforcement of the laws against retail sales to youth is the best way to

stop youth smoking?

MS. WALBURN: Object to the form of the question.

THE COURT: Sustained.

Q. Would you turn to tab nine in your packet, which is BYS000469. Do you

have tab nine, professor?

A. Yes, I do.

Q. (Coughing.) Excuse me.

And is that a press release from the office of Hubert H. Humphrey III,

Office of the Attorney General, dated December 30, 1994?

A. Yes, it is.

MR. WEBER: Your Honor, I'd move the admission of this document as a

self- authenticating public record, and under 801(d)(2) as an admission.

MS. WALBURN: No objection to the document, but it falls outside the

scope of this witness's direct testimony. She didn't testify about law

enforcement.

THE COURT: Okay. BYS000469 will be received.

BY MR. WEBER:

Q. Now this is a press release from Attorney General Humphrey; correct?

A. Yes, it is.

Q. And this is dated December 30, 1994, professor?

A. Yes, it is.

Q. And that's after the filing of this lawsuit?

A. Yes, it is.

Q. And professor -- "professor."

*37 Attorney General Humphrey is no friend of tobacco; is he?

A. I can't -- I won't answer that.

Q. He certainly doesn't make up excuses for the tobacco companies; does

he?

MS. WALBURN: Object to the form of the question.

THE COURT: Argumentative.

Q. Could you read the second sentence -- the second paragraph.

A. I'll read the second paragraph if I can read another paragraph in

this press release.

Q. I'm sure your lawyer will give you a chance to do that. Right now I

want to ask you to read the second paragraph, professor.

A. All right. "'Our message is simple: Either we get serious about

tobacco sales to minors or we will lose another generation of kids to

tobacco-related deaths,' Humphrey said. 'most tobacco use begins at a young

age, so cracking down on illegal sales to minors is our best hope to break

the cycle of addiction."'

Q. Then if you go down to the second-to-the-last paragraph,

"Studies...."

A. Oh, on that same page.

"'Studies show that underage decoy shoppers in Minnesota are still able

to buy cigarettes illegally more than 63 percent of the time. Unless we get

better private and public oversight of the laws governing tobacco sales to

kids, we'll all be paying the enormous costs of tobacco-related illness for

years to come."'

Q. Do you agree that cracking down on illegal sales to minors is the

best way to stop sales to youth?

A. No, I don't. And I'd like to say that I don't think Mr. Humphrey did

either. He said in this same document "'Because of slick advertising aimed

at young people, as many kids recognize Joe Camel as Mickey Mouse,' Humphrey

said. 'But Joe Camel isn't the only reason so many kids are getting addicted

to tobacco.'

"Humphrey said he will be supporting legislation in the upcoming

Minnesota legislative session to require a licensing system for tobacco

sales in those communities that do not now have one and to see that

licensing is backed up by regular compliance checks and by effective

sanctions for repeat violators. He will work with legislators on the details

of the proposal in coming weeks."

Q. You didn't read that quite right; did you, professor?

A. I did read what I wanted to.

Q. Right? You read what you wanted to.

THE COURT: Counsel, counsel, do you have a question?

MR. WEBER: Yes. Yes, I do, Your Honor.

THE COURT: Ask a question, please.

MR. WEBER: Okay.

Q. When you just read those two paragraphs, starting with "'Because"'

there, --

A. Yes.

Q. -- you skipped over a sentence; didn't you?

A. Because it wasn't part of my point. You made that point already, so I

didn't think I needed to make that point again. I wanted to make the point,

number one, that it wasn't the only thing that Mr. Humphrey was concerned

with, he was also concerned with advertising, and two, that he -- this was

part -- this press release was part of a legislative process which the

tobacco industry lobbied heavily against, and I wanted some of the context

of that legislation to be read. I didn't need to read your point.

*38 Q. Well I'm just asking questions, professor. My question now is --

THE COURT: Counsel, please, no commentary. Just ask your question.

Q. When you read that, you just skipped that one sentence; correct?

MS. WALBURN: Objection, asked and answered.

THE COURT: It's been asked and answered.

Q. Would you read it now, professor.

MS. WALBURN: Objection, the statement has been read into the record.

THE COURT: You may read the whole thing.

A. "'Because of slick advertising aimed at young people, as many kids

recognize Joe Camel as Mickey Mouse,' Humphrey said. 'But Joe Camel isn't

the only reason so many kids are getting addicted to tobacco. Lax government

and business oversight of tobacco retailing laws is also to blame, and

that's something we can change.'.

"Humphrey said he will be supporting legislation in the upcoming

Minnesota legislative session to require a licensing system for tobacco

sales in those communities that do not now have one, and to see that

licensing is backed up by regular compliance checks and by effective

sanctions for repeat violators. He will work with legislators on the details

of the proposal in coming weeks."

Q. Now professor, let me, just to make sure I understand, in this second

paragraph, did you say that you did not believe that Attorney General

Humphrey thought that cracking down on illegal sales to minors was the best

hope to stop sales to youth?

A. I thought you were asking me whether I thought that cracking down was

the best hope. That is what I answered, and I said no, I didn't think that

cracking down was the best hope to break the cycle of addiction.

Q. Was that --

A. And I don't think -- unless I heard you wrong, I didn't think you

were referring to Attorney General Humphrey.

Q. Well no, my question was -- was directed to you. It was do you agree

that cracking down on illegal sales to minors was the best way to stop sales

to youth, and your answer was "No, I don't. And I'd like to say that I don't

think Mr. Humphrey did either," and then you went on. So that's -- that's

why I'm following this up.

A. Oh. Oh.

Q. Did you mean to say that Attorney General Humphrey does not think

that cracking down on illegal sales to minors is the best hope to stop youth

smoking?

A. You know, I don't actually know what Mr. Humphrey thinks what -- in

terms of the relative importance of access and advertising. I know, you

know, this is a press release, and it was prior to trying to get

legislation, it's a part of the political process and he was making a big

point, and so I don't actually know what he thinks in terms of the relative

importance of access and advertising. I -- I know he thinks both of those

are important influences on -- or I believe that both of those are -- that

he thinks they're -- they're both important influences on youth smoking.

Q. But what he said was that cracking down on illegal sales was the best

hope; right?

A. Yes. He also said "But Joe Camel isn't the only reason so many kids

are getting addicted to tobacco." So that's where I believe that Mr.

Humphrey sees that both of these are important in terms of youth smoking.

*39 Q. Now --

THE COURT: Counsel --

Q. -- messages about --

THE COURT: Counsel, I think we'll recess at this time.

MR. WEBER: Okay.

THE COURT: Reconvene tomorrow at 9:30.

THE CLERK: Court stands in recess, to reconvene tomorrow morning at

9:30.

(Jury leaves the courtroom.)

(The following conversation was held in the courtroom with the jury

and the judge not present:)

THE CLERK: I just wanted to get some guidance with respect to objections

for document day. If you can file them with the court or let the court know

on Thursday what your objections are going to be, a listing of objections.

Procedurally we will have the hearing in the courtroom too, but just to get

an idea of timing when the jury is going to have access to documents, the

court would like some ideas as far as objections. Will you be filing, or

does it provide for that --

MR. BERNICK: In other words, you'd like a listing of objections?

THE CLERK: Yeah, just documents, of which documents.

MR. MONICA: By when?

THE CLERK: Thursday.

MR. CIRESI: What Mr. Bernick said yesterday was those for which there

are not any objections to, we could provide those to the jury right away.

THE CLERK: Okay.

MR. CIRESI: And we could, obviously outside the presence of the jury, go

over those documents on which there is an objection, and then we can see

whatever of those get in. So I assume when we get their objections, we will

be able to segregate out those documents separately.

The other thing is on the witness list, I would like to raise an issue.

The defense is to provide us with their witness list and those individuals

whom they will call live and those who they will call by deposition. They

have not done that. I would like to receive that this evening.

MR. BLEAKLEY: We're doing that.

MR. CIRESI: We would like to receive it this evening.

MR. BLEAKLEY: We're doing that.

MR. CIRESI: Are we going to get it this evening?

MR. BLEAKLEY: We hope so.

MR. CIRESI: If we're not going to do , I'll bring it up with the court.

MR. BLEAKLEY: I know we're in the process of trying to do that. I can't

attest at this instant that it will happen, but I hope so.

MR. CIRESI: If we don't have it by the time court starts, then we'll

bring it up with the court.

MR. WEBER: Correct me if I am wrong, Mr. Ciresi, don't we also -- isn't

there still a motion, a document-day motion pending that hasn't been ruled

on?

MR. CIRESI: I have no idea what document- day motion is pending.

MR. BERNICK: Yes, I think there is.

MR. CIRESI: And hasn't been ruled on?

THE CLERK: There is a notice for having the document day which is to be

held on Friday.

MR. WEBER: But I just wanted to say they were objecting to certain

documents, a motion was filed that was a broader objection to the

designations that have been done here.

THE CLERK: And of course those objections would be heard with the other

objections, if that's what you'd like to do.

*40 MR. BERNICK: I think that that's right. And that was not listed in

the notice, but we can argue that as well on Friday.

THE CLERK: If that's what you'd like to do.

MR. BERNICK: Well that really probably should be argued before the

review begins.

MR. WEBER: Right. That's why I was raising that point.

MR. CIRESI: Which motion are you talking about? Because you raised an

issue, we had a document day, and then you keep raising the issue again. And

if the court's already ruled on it, then I believe there has been a

decision. So which specific issue are you talking about?

MR. WEBER: Well I --

MR. CIRESI: Just a minute, Mr. Weber, you weren't at the last document

day, Mr. Bernick was.

Are you addressing some of the issues you raised during document day,

Mr. Bernick, or is there something different?

MR. BERNICK: There's a different motion which was filed in connection

with the second document day. Mr. Weber is correct to remind us of that

because the motion has not been ruled on.

THE CLERK: Okay. With respect to the second document day, defense

counsel is aware that it will be held, so if there are other objections that

you are seeking the court's ruling on, it's your province to bring it up.

MR. BERNICK: The motion was filed. It's not been ruled on.

THE CLERK: I understand.

MR. BERNICK: And that's all we're raising.

THE CLERK: Counsel, you're aware of the court's --

MR. BERNICK: We recognize that Friday is going to be the document day.

We recognize that if we have documents with specific objections, that

they'll be heard first thing at that time. I think all Bob is pointing out

is there still is this pending motion.

MS. WALBURN: My recollection on the motion, although it may be a little

hazy, but my recollection of the document-day motion that's pending is that

it is in large part duplicative of issues that were raised with respect to

document day one.

MR. WEBER: I don't believe that's the case. The document day two motion

is largely directed to abuse of designations by plaintiffs designating an

amount of documents that nobody could conceivably go through and review in

time. It's an abuse of the document day process. We think what they're

trying to do is dump documents into the record.

MR. CIRESI: No, let me address that.

MR. BERNICK: Whatever it is is.

MR. CIRESI: Yeah. If it is, the only documents that I'm aware of that

have been dumped into the record were by Mr. Weber in the direct examination

of Dr. Glenn where he put in the CTR annual reports of which there were, I

don't know how many, but he asked a question on maybe one or two pages.

I might point out that that was after there had been overdesignation of

documents by the defense and the court had brought that to the parties'

attention. And so the next day when he designated all those documents, they

dumped them all in and used one or two pages, I believe, of one report.

So we are not dumping any documents in. We have a number of defendants

and over 40 years, and we need to cover all of those issues during those

decades by each one of the defendants. And that's what we're trying to do

with regard to these documents.

*41 MR. BERNICK: You know, the motion is whatever it is. I do recall

that when this issue first was raised, even in conjunction with the first

document day, the argument was made about the scope of even the first

document day, and I believe the comments from the bench were not

unsympathetic to the notion this created an issue. We now have the second

document day, there's a second motion that's now pending. All we're trying

to do is to alert the court to the fact that it's still pending and

presumably we have to get it resolved before the document day commences. But

these are all pending before the court.

MR. CIRESI: They are indeed. And let me point out that what Ms. Walburn

just said is correct, that was the issue that was raised. It was the issue

you raised on the first document day, and the court, according to my

recollection, said that he would continue, as he had in the past, to deal

with all of the documents on an individual basis, and he would make a

determination if any party was abusing the right to put documents into

evidence. So we now know that it was duplicative of what was raised on the

first document day, and we'll deal with it on Friday, I assume at the

court's leisure.

THE CLERK: Thank you.

(Conversation concluded.)





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