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 "i