STATE OF MINNESOTA AND BLUE CROSS AND BLUE SHIELD OF MINNESOTA, PLAINTIFFS,

V. 

PHILIP MORRIS, INC., ET. AL., 
DEFENDANTS.


TOPIC:          TRIAL TRANSCRIPT
        TRANSCRIPT OF PROCEEDINGS
DOCKET-NUMBER:  C1-94-8565
VENUE:          Minnesota District Court, Second Judicial District, Ramsey
County.
YEAR:           March 11, 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.
    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. I'd like to start today with an issue that we just touched on
yesterday. If you'd turn to page 74 of the 1994 Surgeon General's report,
please, and in the upper right-hand column, professor, in that paragraph
that's labeled "Overall" -- or that begins "Overall...," do you see that?
    A. Yes, I do.
    Q. That talks about some of the disparity in high school smoking rates
between African Americans and whites; does it not?
    A. Yes. Let me just check.
    Q. And -- I'm sorry.
    A. Let me just read through it.
    Q. Sure.
    A. Yes, it does.
    Q. And that's high school senior data; correct?
    A. Yes, I believe it is.
    Q. And one of the things that paragraph does is it tracks that -- those
rates from 1976 to 1992; correct?
    A. Yes, it does.
    Q. And in 1976 the high school senior rate for whites, the prevalence of
daily smoking, declined from -- or was 29 percent, according to that
statement in the Surgeon General's report; correct?
    A. I believe that's for females. Oh, okay, 19 --
    Daily smoking.
    Q. Okay.
    A. Okay. Daily smoking --
    Q. Okay.
    A. -- they were talking about, not current smoking. Daily smoking.
    Q. And that same measure in 1992 was at 20 percent; correct?
    A. I think 17 percent. Am I looking at the right sentence?
    Q. Doesn't --
    You see the sentence that says "Among whites...?" I'm sorry, I may have
confused you with my question, professor. I'm -- I'm -- I'm trying to get
the -- the -- for whites.
    A. Oh, for whites, so not overall.
    Q. Yes. I'm sorry.
    A. Okay, 20 percent.
    Q. From 29 --
    Just make sure now that I've gotten you on the right sentence.
    A. Yes, that's right.
    Q. Twenty-nine percent in '76, 20 percent in '92; is that right?
    *2 A. Right.
    Q. And among African Americans it was 27 percent in 1976, same measure;
correct?
    A. That's right.
    Q. And roughly equivalent to the white rate; correct?
    A. Yes. Slightly lower, yes.
    Q. And by 1992 that rate for African Americans was four percent. Do I
have that right?
    A. Yes. For daily smoking.
    Q. So that there was a five-times difference by 1992 in those two rates;
correct?
    A. Correct.
    Q. And do you also note that among youth in this same period, use among
white and African American use, use of illicit drugs was roughly equivalent?
    A. Among whites and African Americans?
    Q. Right. There wasn't a five-times disparity, they were roughly
equivalent.
    Are you familiar with that data, use of illicit drugs?
    A. I haven't really studied that. We could look it up if you would like.
    Q. Um --
    A. But I couldn't comment on the, you know, five-time relationship on
that.
    Q. Well -- okay.
    A. And my --
    Q. Now --
    A. My understanding is, in fact, African American teens also used
marijuana at a lower rate as well, you know, but my -- I would need to check
the data.
    Q. That's not data you're familiar with right now, to be fair.
    A. Well it's not data I would want to quote an exact percent on. It is
data that I use, and I tend to rely on sources of data when I write my
papers and teach my classes.
    Q. So in this period of time --
    And you would agree with me, by the way, that in this period of time,
advertising and promotional expenses increased by the tobacco companies,
would you not, from 1976 to 1992?
    A. That's what we talked about yesterday, yes, they increased.
    Q. And the high school senior rate among whites that was measured here
went from 29 down to 20; correct?
    A. Right.
    Q. And the African American rate went from 27 down to four; correct?
    A. Right.
    Q. And with respect to this five-times difference, both the African
Americans and the whites were exposed to advertising, correct?
    A. They were both exposed to advertising. But in fact the African
American community responded to new advertising that was directed at the
African American community in a much more aggressive fashion. In fact, one
cigarette that was aimed at the African American community was essentially
withdrawn when the African American community made such a big stink about
being targeted. So they -- they --
    You know, I'm sure they were both exposed to cigarette advertising, but
that doesn't suggest that that's the only thing going on during this period.
    Q. And indeed, the tobacco companies during this period of time ran a
number of ads with African American people in the ads; didn't they?
    A. I'm quite sure they ran some ads with African American people in
them.
    Q. And the ads where they hired African American models ran in
communities that had a high percentage of African American residents; right?
    A. I would have to take your word on that, that you were targeting
African Americans in their community.
    *3 Q. Well the question --
    Do you know whether the ads that you just said that you assumed they ran
with African American models, do you know whether those generally ran in
African American residential areas?
    A. I would assume so.
    Q. And with --
    A. But I would think they would be also in general magazines that --
that African Americans and others would -- would read. It's not that African
Americans aren't exposed to the general population.
    Q. Right. I didn't mean to suggest that. I was just --
    I mean the ads will appear in different places and not exclusive one way
or the other.
    A. Yeah.
    Q. I was just asking about general.
    And despite the increase in advertising over this period, advertising
and promotional expense, we see that high school seniors are reacting very,
very differently depending upon their ethnicity; correct, based on that
data?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: You may answer that.
    A. Both of the groups were exposed to advertising. Different things may
have been going on within the white community and within the African
American community to counteract advertising, and so to draw a direct
one-on-one between advertising and promotional expenses, a one-on-one
relationship, and -- and youth smoking, there are other things going on that
would impact those rates. So we see the -- the decrease.
    Now what's interesting is that the African American data that you've
shown here goes down to 1992, but it -- then it begins to go back up. So
other things were -- I mean they -- obviously they're responding to the
larger social environment, including advertising, after 1992.
    Q. And --
    A. They didn't continue -- it didn't become a non-issue. And this is
daily smoking. We're not looking at -- at current smoking, which is the
general figures we look for. This kind of exaggerates by looking at daily
smoking among African Americans, who, in general, tend to start smoking a
little bit later. If we looked at African American data among adults, we see
that they're smoking at about the same rate as whites. So that in fact the
African American adolescents catch up, unfortunately, with whites by the
time they're in their twenties. So something is happening during the
adolescent phase in these communities to delay onset.
    Q. And as you said, you can't make a one-on-one -- a direct one-on-one
between the expenses, the advertising and promotional expenses, and the
smoking rates; correct?
    A. Well what we can say is that advertising and promotional activities
have a direct influence on teen-age smoking behavior, but it's not the only
influence. It has a direct influence, as we have been talking about for
several days now, but it's not the only influence going on in our
communities that will affect youth smoking behavior.
    Q. Now you're not saying that there was more education -- well let me
strike that.
    Do you have data that demonstrates there was more education, more anti-
smoking activity in the African American community for high school seniors
than there was in the white community? Do you have data on that?
    *4 A. Well as I mentioned yesterday, the 1995 Surgeon General's report
is dealing exactly with this issue of what causes African Americans,
Hispanic Americans and so forth to smoke, and so that was --
    Unfortunately, that hasn't been released. There have been a number of
theories around why the African American community has decreased their
smoking, and one of those has -- has to do with religious influence; for
example, the Muslim influence, which -- which says, as part of that, that
one shouldn't be involved in tobacco use as a -- as a -- as a number of
drugs, that that's part of Muslimism.
    Q. And indeed, in some of the studies that have been cited in the
Surgeon General reports, religious involvement by youth has been shown to
decrease the risk of using tobacco while under-age; correct?
    A. No, that's not what it says. It says attending -- children who attend
church are less likely to be smokers, so --
    But that's not -- also not a very strong factor. And it doesn't get to
the concept of spirituality or beliefs, it -- it probably reflects more, you
know, who you're spending your time with. So church attendance did come out
as one of the, quote, unquote, constructive behaviors young people can
engage in that's associated with -- with less smoking. But again, that's not
a very strong factor.
    Q. Now the 1994 report wasn't the first of the reports to analyze issues
regarding the advertising of cigarettes and consumption data; was it?
    A. You mean among youth.
    Q. Among youth or in general. Other reports have addressed those issues;
correct?
    A. I don't remember the other reports talking about cigarette
advertising and promotion and its effect on youth smoking behavior. There
may have been comments made about that, but they certainly didn't go through
the -- they
didn't have an entire chapter devoted to cigarette advertising and promotion
and its effects on youth behavior, and they certainly didn't have the
research that I cited on Monday, which is the most prominent research in the
area that only emerged in the 1990s. So I would imagine some statements were
made and those statements are most likely outdated.
    Q. And some of those reports analyzed issues of the effect of
advertising on consumption; did they not?
    A. You mean advertising in general on consumption in general?
    Q. Right.
    A. I would imagine there were some statements made about advertising in
general and consumption in general. My specific interest is cigarette
advertising and promotion and its effect on teen-agers.
    Q. Would you --
    A. Which --
    Q. I'm sorry, professor.
    A. Which, as we saw, the cigarette advertising and -- and promotion is
about three times more powerful with young people than it is with adults. So
to the extent we see reports having to do with adults, we need to keep in
mind it's -- okay, it's much -- it's going to be much more powerful with
young people.
    Q. Could you turn to Plaintiffs' Exhibit 3836, I -- it's the 1979
Surgeon General's report, and I think it's up there --
    *5 A. Yes.
    Q. -- in a bound version, professor. Do you have that?
    A. Yes, I do.
    Q. Now the pages in that are numbered by chapter and then dash and then
a page number within the chapter. Do you see that?
    A. Yes.
    Q. Could you turn to page 18-22 where it says "Mass Media and Smoking."
Do you see that?
    A. Yes, I see that.
    Q. Could you read that first paragraph under "Mass Media and Smoking,"
professor.
    A. Yes, if I can take a look at a couple things.
    "There is little persuasive empirical research available on the effects
of television advertising, or its ban, on cigarette sales or on recruitment
to the ranks of smoking. Bans on television advertising for cigarettes in
several countries, including the United Kingdom, Denmark, Ireland, New
Zealand, and Italy, seem to have had almost no effect on per capita
cigarette consumption. A highly technical, economic analysis has estimated
that the 1965 ban on television advertising in the United Kingdom produced a
significant -- a statistically insignificant fall of three percent in
cigarette consumption. In Communist countries, smoking is prevalent without
advertising of any sort to support it. Four years after the 1970 ban on
television advertising in the United States, there was little indication
that this mass medium had a major influence on cigarette consumption. An
economic analysis by Warner in 1977 suggested, however, that the sustained
anti-smoking activities, including mass media, that have been conducted
since 1964 may have prevented consumption of tobacco from rising even
further than it already has."
    Q. Now professor, the fact is that in Communist countries where there
was little or no advertising, smoking was prevalent and smoking initiation
rates were high; isn't that true?
    MS. WALBURN: Objection, beyond the scope of direct, relevance, and
outside the scope of discovery in this case.
    THE COURT: Well you may answer if you know.
    A. I don't really know this particular area. I know a little bit more
recent things, but I -- this is really not my area.
    Q. Did you --
    Would it be of interest to you as one who is an expert, who's before the
court and the jury as an expert on the effects of advertising on smoking
initiation, would it be of interest to you to examine data from other
countries where there have been advertising bans, or where there hasn't been
advertising for many, many years, to see what effect that has on smoking
initiation rates?
    MS. WALBURN: Objection, beyond the scope of discovery. Defendants
refused to produce advertising documents relating to foreign countries.
    THE COURT: Sustained.
    Q. Is there international data in the international literature with
respect to the question of whether initiation rates in countries without
advertising are the same as initiation rates in countries with advertising?
    MS. WALBURN: Same objection, and relevance.
    THE COURT: You may answer that.
    A. What I've seen, I saw some of the documents you -- the tobacco
industry -- produced. I also have reviewed documents, three papers -- I was
part of the National Cancer Institute of Canada panel, I looked at three
papers on tobacco advertising bans, one of which, Langesan & Leads -- or
Miade's 1991 data looked at 22 countries and said that -- that since 1973,
that cigarette advertising bans in these 22 countries had had a moderate
effect on reducing smoking. I also looked at the World Health Organization
report on tobacco bans issued in 1993 in which they said that cigarette
advertising bans had a significant impact on reducing -- on reducing smoking
rates. I haven't seen anything that specifically looks at teen-agers. And
also I looked at the documents produced which showed a different side of the
picture.
    *6 So my reading on the literature on tobacco bans is that it's mixed at
this point, that for the most part the research literature that I reviewed
shows a moderate decrease in per capita consumption of tobacco with a total
tobacco -- ban on tobacco advertising and promotions in 1990s publications,
but I really felt that since these tobacco bans occurred in other countries
and that the data weren't completely consistent, that I didn't want to
include that in my testimony because we have a rich source of data in the
United States which clearly points to the relationship between cigarette
advertising and promotion and teen-age smoking. So I -- I looked at reports;
they've gone in -- in both directions. And certainly the WH0, World Health
Organization report, that's a 1993 report, used very strong language to say
that total ban on advertising and promotion would decrease per capita
consumption of cigarettes -- of cigarettes.
    Q. Now professor, you just said that you didn't want to include this in
your testimony because the ad ban evidence, the data weren't completely
consistent. Do you remember that?
    A. They weren't completely --
    The papers weren't completely consistent. After I read your papers, the
ones I had reviewed were pretty consistent and showed a moderate effect.
Also, there's -- another big point is how relevant is this international
data to what's going on in -- in the United States? Other countries have a
whole different set of cultural standards around smoking. They have very
different economic conditions. And even the concept of what they do in
advertising and promotion is very different.
    For example, Norway had a complete ban on advertising and promotions in
1975, a complete ban, and yet when I was at a meeting in Norway in the early
' 90s, I was walking down the main mall, there's kind of a main mall in
downtown Oslo, and there was a big store selling Marlboro items with
Marlboro, you know, sweatshirts and so forth. So that, no, they weren't
using advertising and promotion; they had found a different means to make
people walking billboards within Norway. My understanding is that that was
disallowed in Norway in 1997.
    So we can't really judge very well what's going on in other countries
and apply it to our own United States because we don't know what's going on
with them economically, we don't really know what they're -- what they call
-- cause -- what they call advertising and promotion, because there's
different cultural standards around smoking.
    Q. Now I think I asked you whether the reason you didn't discuss this
was because the data weren't completely consistent. Was that the reason?
    MS. WALBURN: Objection, misstates the testimony. There has been more
than one reason given.
    THE COURT: Okay. You'll have to rephrase your question, counsel.
    Q. Let me get back to that question, Your Honor.
    The question was: You just said that you didn't want to include this in
your testimony because the ad ban evidence -- the data weren't completely
consistent. Do you remember that? Is that what you said?
    *7 MS. WALBURN: Objection, misstates the testimony.
    THE COURT: You may answer that.
    A. I believe I said quite a bit more than that. I said that the papers
-- the papers I had read up to the point of this trial, which included, for
example, a document from New Zealand that looked at 44 countries and which
resulted in a total ban on advertising and sponsorship in New Zealand, that
said that tobacco -- that tobacco -- a ban would reduce consumption. There's
a Langesan & Miade's article I just referred to that went -- that looked at
22 countries and said the data was -- was very strong since 1973, that the
ban had an effect. So up until then --
    I saw documents from the tobacco industry showing the other side of --
of the equation, and so I decided that this really wasn't my area of
interest, I wasn't really looking at international work, I was looking at
what research we did in the United States. And so it wasn't just that these
papers were inconsistent, I just didn't think they were as relevant to my
testimony as the wealth of data we have in the United States.
    Q. One of the reasons you didn't include this in your testimony is
because the academic data weren't consistent; correct?
    MS. WALBURN: Objection.
    Q. One of the reasons?
    MS. WALBURN: Asked and answered.
    THE COURT: You may answer that.
    A. I can't really judge -- I didn't have time enough to study the papers
that you presented. The papers I read were pretty consistent on showing a
moderate effect of cigarette advertising and promotional bans on reducing
consumption. You know, as I said, the main -- you know, the main reason was
that -- was relevance.
    Q. But you did say they weren't completely consistent; correct, the
academic data on this?
    A. The papers produced --
    The papers I looked at prior to this testimony were -- were fairly
consistent. The -- the papers you produced said something different. So I
didn't have time to study, you know, who -- these papers, what techniques
they used, whether they controlled for economic changes, whether they
controlled for cultural differences, so I couldn't make that assessment. So
-- you know, so that really wasn't my major reason. My major reason was
relevance.
    Q. And the fact of the matter is, professor, that with respect to the
main issue you've been talking about, which is whether advertising causes
youth to smoke, the academic data there isn't completely consistent either;
is it? Even the post-1994 data.
    A. The post-1994 data is overwhelmingly consistent. It's not a hundred
percent consistent, as is any -- any part of our field, but it is
overwhelmingly consistent. And if you take with it what has come before and
you add on to it the information presented in the tobacco industry
documents, you get an entire picture, and that entire picture is what forms
my opinion.
    Q. So that the answer is no, the post-1994 academic literature about
whether advertising causes smoking initiation is not completely consistent?
    *8 MS. WALBURN: Objection, asked and answered.
    THE COURT: Sustained.
    Q. Now I'm going to put "FSU" up here -- I don't mean Florida State
University, which is one of the country's institutions -- I want that for
Former Soviet Union and the Eastern Bloc countries.
    Now you know for many years there was little or no advertising of
tobacco products there; correct?
    A. I haven't really studied each of -- either of those areas, so I
really can't attest to that.
    Q. Would you rely on the statement in the Surgeon General's report that
says in Communist countries, smoking is prevalent without advertising of any
sort to support it? Would you find that statement to be reliable in the
Surgeon General's report?
    A. I'm not sure what it means right now in 1998, so I'm --
    Q. Well --
    A. I'm not really going to rely on that at this point.
    Q. Well would you find it reliable as of 1979?
    A. I guess I would in 1979.
    Q. And you know, don't you, that overall smoking prevalence rates and
overall smoking initiation rates were equal to or higher than those in the
West; that is, the rates in the former Soviet Union and Eastern Bloc
countries, in that period?
    MS. WALBURN: Objection, relevance, outside the scope of direct, and
outside the scope of discovery.
    THE COURT: You may answer if you know.
    A. I really don't know this area.
    Q. Doesn't -- would --
    Would evidence like that tell you that, wholly without regard to
advertising, there's some percentage of this population that's going to want
to use tobacco and smoke cigarettes regardless of whether there's
advertising?
    A. Well I'm not sure because I'm not sure what kind of information they
were getting. For example, I've spent a bit of time in Singapore where there
is, just like in Norway as I said a few minutes ago, there's no advertising
and promotion there, but there were a lot of walking billboards in
Singapore. They also -- you know, Singapore is a pretty strict country with
no advertising and promotion, and yet there are quite a number of Western
magazines coming into the country, so that young people are being exposed to
some advertising and promotions. So I can't --
    I don't know what's going on in these countries. I wasn't there and I
haven't studied this. I have studied what has gone on here. And I don't
think we can make comparisons country by country because there are huge
cultural differences between countries, there's economic differences,
there's differences in the way tobacco products are sold, who's selling it,
who's involved in it, et cetera. And so to take, you know, the former Soviet
Union and to try to apply that to youth smoking in 1998 in the United
States, you know, I really can't make that -- that linkage.
    Q. Is --
    A. I just don't --
    Q. I'm sorry.
    A. I really don't think that that is a relevant argument.
    Q. I'm sorry for interrupting you. Are you finished?
    A. I am now.
    Q. Is Singapore a Communist country, or was it in 1979?
    *9 A. No, I don't believe so.
    Q. All right. My question was: Does the experience with smoking
prevalence and smoking initiation in former Eastern Bloc countries indicate
to you that in countries where there's no advertising or very little
advertising, let's say that, that there is still going to be some percentage
of the population who chooses to smoke?
    MS. WALBURN: Objection, asked and answered and relevance.
    THE COURT: It's been asked and answered now.
    Q. Now you referenced a New Zealand study a moment ago.
    A. I referenced it as one of four studies that I had looked at.
    Q. Now given your involvement in that Canadian project you mentioned, do
you know that the Canadian government rejected that New Zealand study as
unreliable?
    MS. WALBURN: Objection to the form of the question, and relevance.
    THE COURT: You can answer it if you know.
    A. I don't know that.
    Q. Now the 1994 Surgeon General report cited three articles by Professor
John Calfee, formerly of the Federal Trade Commission. Do you remember that
offhand?
    A. No, I don't.
    Q. And you were the individual responsible for the scientific integrity
of the data; correct?
    A. Well I think I explained that very carefully over the last couple of
days, that different researchers wrote the different parts of the report,
they wrote parts of the report such as the health consequences or addiction
among teen-agers that really aren't my area, so I relied on the peer-review
system. So to the extent that they -- Dr. Samet had a reference to his
chapter, I didn't, you know, check that particular reference out. I counted
on the peer- review system to make sure that what Dr. Samet said was the
state of the art at that time.
    So in terms of the scientific integrity, it meant that I made sure this
was a consensus document. Doesn't mean that every single sentence I know
what it means or I know every reference.
    Q. You trusted those who had primary responsibility for each chapter to
use reliable authors and data sources; correct?
    A. For the most part. And I went through the peer- review system. That
doesn't mean that some of those weren't, but -- weren't completely reliable,
but, you know, this -- that's true of any book. This was considered the best
science at that time.
    Q. Now could you turn to page 198, professor. And that's an alphabetical
listing, and I think you'll see in the left-hand column a citation to work
by John E. Calfee. Do you see that?
    A. Yes, I do.
    Q. And -- and he was then with the Federal Trade Commission in 1985,
according to that citation; correct?
    A. It means that this particular publication came out of the Federal
Trade Commission. I don't know for a fact that he was in the Federal Trade
Commission.
    Q. And if you could turn, then, to page 201, professor, and if you'd
look down in the lower left-hand column, you see two more articles cited in
the Surgeon General's report in which Professor Calfee was a co-author. Do
you see those?
    *10 A. Yes, I do.
    Q. And those both deal with content of cigarette advertising and issues
of that type. Fair?
    A. Yes.
    Q. Now --
    A. But I don't myself remember those particular articles.
    Q. Now --
    So Professor Calfee's work was cited three times in the Surgeon
General's report in the chapter on advertising and promotion; correct?
    A. Yes. I'd like to see where he was referenced, if you don't mind
taking a few minutes.
    You didn't happen to note that; did you?
    Q. I didn't, because the citations didn't give index pages.
    A. Yeah.
    Q. Do you want to go on, and if you feel a need to check it based on the
next question, obviously you can do that?
    A. All right.
    Q. Could you turn to Exhibit -- excuse me, I -- I need to give you the
tab, tab 29, which is Exhibit ASP000003, and can you identify that from the
cover page and the pages inside as a book entitled "Fear of Persuasion, A
New Perspective on Advertising and Regulation" by John Calfee?
    A. Yes, I can.
    Q. And if you go to the next page, you will see that was published in
1997?
    A. Yes.
    Q. And this is the John -- same John Calfee, obviously, who was cited
three times in the Surgeon General's report on advertising-related issues?
    A. Yes. However, I don't know if this book was at all peer reviewed, and
I am not -- I don't believe I've ever heard of AEI Press, which is who
published it, or AGORA Association in Switzerland. I -- you know, I've never
heard of that, AGORA Association. So I don't know if this was a
peer-reviewed book or an advocacy document.
    Q. But you do know Professor Calfee was being cited three times in that
report; right?
    A. Yes. But as I've said, I'm not sure in what -- in what context he was
cited. So if we want to go back and see if we were - - you know, what we
were quoting him on, we can do that.
    Q. And if you'd look at page vi, table of contents.
    A. Yes.
    Q. You'll see there he discusses in that chapter tobacco advertising
bans. Do you see that from the table of contents, professor?
    A. Oh, which part? Chapter --
    Q. Chapter five, top of page vi.
    A. Yes, I see that he wrote a chapter on advertising bans.
    Q. That specifically deals with -- with tobacco, in part; correct?
    A. That's --
    Yes.
    MR. WEBER: Your Honor, I'd move the admission of ASP000003 as a learned
treatise by an author cited three times on advertising issues in the '94
report.
    MS. WALBURN: Objection, proper foundation hasn't been laid. This book
was not cited in the Surgeon General's report, and it's not peer reviewed.
    THE COURT: Sustained.
BY MR. WEBER:
    Q. Would you be interested, professor, in reviewing the data in a 1997
publication on the effect of advertising bans in various societies by an
author who was reliable enough to be cited three times in the Surgeon
General's report that you were the senior scientific editor of?
    MS. WALBURN: Objection, form.
    THE COURT: You may answer.
    A. I would go back to the Surgeon General's report and I would see how
we used him. I never heard of this guy, John Calfee, to be completely honest
with you. He's not, you know, known in -- in my particular field. And since
I haven't been interested in the area of advertising bans because I haven't
been an advocate of advertising bans, you know, I'm -- I'm not sure this is
what I would take a look at. First of all, the author is unknown; second of
all, I've never heard of the publisher; third of all, it hasn't been peer
reviewed. So I haven't seen anything that's -- that would direct me to this
book, and it's not on a topic that is directly relevant to my interest in
cigarette advertising and promotions and its effect on young people.
    *11 Q. Well, the author isn't unknown, at least he wasn't unknown to
those people -- those experts who wrote the chapter on advertising in the
'94 report; correct?
    A. You asked me. You asked me --
    Q. Right.
    A. -- what I would do, so I gave you my answer. I never heard of this
person.
    Q. Does the fact that those who were experts on advertising chose to
rely on his research in the '94 report give him credit or reliability in
your mind?
    MS. WALBURN: Objection. And if this line is going to be pursued, I ask
that the witness have a chance to look at the Surgeon General's report as to
how the information was cited.
    THE COURT: Sustained.
    Q. Professor, I'd like to turn now to an exhibit you discussed the other
day, Trial Exhibit -- Plaintiffs' Exhibit 12493.
    A. Yes.
    Q. And Trial Exhibit 12493 was the document that related to that 1974
meeting of the R. J. Reynolds board of directors; correct?
    A. Right.
    Q. You spoke --
    A. And it --
    Q. I'm sorry.
    A. I'm sorry, I interrupted you.
    Q. And you spoke about that in your testimony on Monday; correct?
    A. Yes. This is on all the marketing plans for 1975 that were presented
to the board of directors at Hilton Head.
    Q. Now this was about a year and a couple months after the introduction
in the Minnesota Senate of the bill to allow high school students a separate
smoking room; correct? Just to set the time.
    A. Yes. This was at the -- right about that same --
    Well it was a year later than that time.
    Q. And if you'd look at the first page where there were those -- that
reference to 14 to 24 that you discussed, --
    A. Yes.
    Q. -- and I think you did read the language to the jury on Monday, it
said that that group represents tomorrow's cigarette business; correct?
    A. Yes. They clearly represent today and tomorrow because you're
targeting 14- to 24-year-olds, so it's today's cigarette business and
tomorrow's cigarette business.
    Q. Well what it said is tomorrow's; right? If we just focus on that
language for a moment, is that what it says?
    A. It represents today and tomorrow's cigarette business, as of 1974.
    Q. Does it say tomorrow's?
    A. It includes tomorrow as --
    But it also is today. This is on the plans for 1975, and it reports in
here things that you've already done, that -- that RJR had already done
toward this market, 14- to 24-year-olds; lots of activities, lots of
advertising, lots of promotions.
    Q. Well I'm -- I'm going to go through the rest of that document later,
but focusing on this paragraph now, it says, with reference to the 14-to-24
age group, that represents 21 percent of the population.
    A. Uh-huh.
    Q. That says they represent tomorrow's cigarette business, and nowhere
in those two paragraphs does it say they represent today's cigarette
business; is that fair?
    A. It says we will seek four key opportunity areas to accomplish this,
if you -- it's up above on this page -- they are to increase our young adult
franchise. And in 1960, this young adult market, the 14-to-24 age group, the
number one key opportunity area was to increase the young adult franchise,
and the young adult was defined as 14 to 24, and that's what this document
talks about.
    *12 Q. But here in these paragraphs it says tomorrow's business; doesn't
it?
    A. Well yes, because young people will get addicted and they'll continue
to be smoking cigarettes for RJR.
    Q. So the answer is yes, it does refer to tomorrow?
    A. Yes, as well as today.
    Q. But it doesn't use the word "today" there; does it, professor?
    A. It implies today.
    Q. Now there are references on both pages one and two, if you just look
through quickly, to the 14-to-24 age group; correct?
    A. Right.
    Q. Now if you turn to page three where it starts with chart seven, do
you see that?
    A. Yes, I do.
    Q. This is where they talk about the strategy for what they're going to
do; correct?
    A. This is where they talk about their strategy for their young adult
market, which they've defined as 14 to 24 right up front.
    Q. Now with respect --
    This is where they begin talking about their strategy; correct?
    A. Their strategies to appeal to 14- to 24-year-olds.
    Q. Now would you find -- and take your time on this if -- if you need
to, look through the remainder of this document from where they talk about
their strategy, and I think you'll find references to 18 to 24 and other age
groups, find a specific reference, if you would for me, please, professor,
anywhere in that document, once they start talking about strategy, to people
under age.
    A. Well in fact I don't think that's necessary because the entire
document, it is up front and says increase our young adult franchise, and
then that young adult franchise is 14 to 24. And if you remember, in the
next document we presented after this, they said that the Meet the Turk
campaign was another step towards meeting their objective of increasing
their market, and it explicitly said 14 to 24, and that was after this
Hilton Head presentation.
    So it doesn't really matter if we take another age group that's from
some data that -- that was gathered by RJR out of context. This entire
document, this document that talks about young adults define young adults
consistently as 14 to 24. And it's not just this one document.
    Q. This document defines young adults consistently as 14 to 24?
    A. Well they made references later to 18 to 34, under 35, but you really
can't take that out of the context of what -- of what this person was saying
as their plans for the young adult market for the next year. So there are
references to the 18-to-24 age group or 18-to-34 age group or under-35 age
group, and under-35 age group would include down to 14. But the whole
document is talking about how are they going to get this young adult market,
and the young adult market is right up front 14 to 24. It's followed up with
-- with, oh, this may meet our objective of the Meet the Turk, 14 to 24.
    Q. Is the answer to my question --
    Well let me ask it again. Once they begin talking about strategy at
chart seven, am I correct that there is no reference whatsoever in that
document to anybody under the age 18, no explicit reference?
    *13 MS. WALBURN: Objection, asked and answered.
    THE COURT: It's been asked and answered.
    Q. And isn't it also true that in this document they use the term "young
adults" in other places to refer to 18 to 24? Isn't that true, professor?
    A. Well as I said in my testimony, young adults -- the young adult, the
terminology "young adult" was used in the late '70s and '80s, but it almost
always meant that it included under-age teens even if it explicitly said 18
to 24, and it was young adult. The strategies that went along with it were
those that would be appealing to teen-agers.
    Q. So you agree with me that the document does define young adults in
some places as 18 to 24?
    A. No, I think that's out of context. This document --
    I mean this is the front page, this is chart number one. It says our
paramount marketing objective is to re-establish RJR's share of marketing
growth. RJR's share is going down and they're upset about that. So what are
they going to do? Their number one opportunity area is to increase our young
adult franchise, the young adult market, they said 14-to-24 age group.
That's the set-up for this whole talk. That is the set-up. They may refer to
other age groups afterwards, but the whole set-up for what they're going to
do is defined concretely in the first page.
    Q. So you would agree with me, then, that once they talk about the
strategy, there's no reference whatsoever to anybody under 18.
    MS. WALBURN: Objection, asked and answered.
    THE COURT: It's been asked and answered.
    Q. Now let me move down that same page where it says, "Research has
shown that among young adults, the Winston ads generate twice as much
recall...." Do you see that?
    Professor?
    A. Yes. I'm reading.
    Q. I'm sorry.
    A. Okay.
    Q. Isn't it true that all of that research was done on people 18 and
over?
    A. I would have no idea from this document.
    Q. You have no facts that the research was done on anybody under 18;
correct?
    A. Well at this particular time, 1974, you were -- you, RJR, were right
in the middle of your National Family Opinion, Incorporated surveys, which
annually, at least annually surveyed people down to the age of 14. Remember,
we showed you how they broke it up into 14-15, 16-17, 18-20. They did that
every single year in the 1970s. So you had -- RJR had data, they had data on
14- to 17-year-olds.
    Q. Okay. This refers to data where people were shown advertisements and
tested for recall. Isn't that what it says?
    A. Yes, that is what it said.
    Q. And that's focus group research like we talked about yesterday;
correct?
    A. Yes, some --
    Q. Where people are shown ads?
    A. And I think that focus group research was in the purview of your
advertising company; wasn't it?
    Q. Well, maybe sometimes it was and maybe sometimes it wasn't. My
question is this --
    THE COURT: Counsel, you -- you needn't respond to questions --
    MR. WEBER: Okay.
    THE COURT: -- asked by the witness. You ask the questions, the witness
will answer your questions.
    *14 MR. WEBER: Can I move to strike that last comment, then, Your Honor?
    THE COURT: Sustained. That will be stricken.
    THE WITNESS: My apologies.
BY MR. WEBER:
    Q. You have no evidence that -- strike that.
    You're not aware that R. J. Reynolds ever did recall research with
people under 17 -- or under 18; are you, professor?
    MS. WALBURN: Objection, beyond the scope of -- of discovery. Advertising
agency documents in their files were not produced.
    THE COURT: Sustained.
    Q. Based on any of the documents you received from R. J. Reynolds, did
you see any evidence that anybody under 18 was ever shown advertisements in
a recall test?
    A. I saw evidence that 18-year-olds were shown advertisements. And what
-- as I mentioned yesterday, if you show something to an 18-year-old, it's
just like showing it to a 17- year-old, a 16-year-old and a 15-year-old.
    Q. Well there's one difference, the 18-year-old is 18; correct?
    A. The difference is that the 18-year-old is an 18-year-old, but they're
still in high school and their friends are under-age, and RJR knows that.
    Q. Now did you receive --
    Let me move this up just a little bit. You talked about the new "Candid"
advertising campaign. Do you see that?
    A. Yes.
    Q. Did you receive any documents, advertisements from the plaintiffs'
lawyers, showing you the "Candid" campaign?
    A. I'm sure I did, but I can't remember --
    I saw thousands of advertisements, so I'm not sure -- I looked at
thousands. I would imagine they would -- there might be some from this
"Candid" advertising campaign, but sitting here today, I can't remember
those.
    Q. Well wouldn't you have wanted, in this memorandum, to look at that
"Candid" advertising campaign to see just what was going on? Wouldn't that
have piqued your interest?
    A. Well at --
    When I looked at this document I was, frankly, quite shocked. You had --
RJR had defined young adults as 14 to 24 years old, and you had these whole
sets of strategies for 14- to 24-year- olds, including advertising and
promotional campaigns. I remember asking to see the Meet the Turk
advertising campaign, which is also listed in the document, I was interested
in that, and I did see the Meet the Turk advertising campaign. So I --
    You know, I looked at boxes and boxes of advertisements, and I can't put
my finger on the "Candid" -- the particular "Candid" campaign.
    Q. Could you turn to tab 78, I believe, professor. That's the Exhibit
No. 1409? 1409, Exhibit X1409.
    A. Excuse me?
    Q. It should be tab 78. Is that correct?
    And can you identify that as a series of advertisements from the Winston
"Candid" campaign?
    A. Well it's labeled "Winston's 'Candid' Campaign 1974 to 1979" and has
advertisements on it.
    Q. And you can't -- you --
    You do believe these to be the -- some of the "Candid" ads you reviewed?
    A. I don't remember having seen them in my boxes, but I will trust that
this is the Winston "Candid" -- part of the Winston "Candid" campaign since
it was produced by RJR for this -- for this trial.
    *15 MR. WEBER: Your Honor, I'd move the introduction for demonstrative
purposes of X1409.
    MS. WALBURN: Objection. I don't think that proper foundation has been
laid. This is a demonstrative exhibit prepared by defense counsel.
    THE COURT: It's -- I mean you're going to have to have her agree to
what's there before you have her use this as a demonstrative exhibit, or
else you can wait until your witness introduces it. That's the way
demonstrative exhibits work, counsel.
    MR. WEBER: She did say, Your Honor, that she would trust this is the
Winston "Candid" -- part of the Winston "Candid" campaign since it was
produced by RJR.
    THE COURT: That doesn't --
    MR. WEBER: I need a little more?
    THE COURT: That doesn't qualify under the Rules of Evidence.
    MR. WEBER: Can I move it in, then -- I move it in --
    I move X1409 in as a demonstrative under Rule 104(b), conditional
relevance that we can connect this up later. There will be evidence that
these advertisements are in fact what we say they are.
    THE COURT: All right. I'll allow it under that rule, subject to motion
to strike.
BY MR. WEBER:
    Q. Now, these are --
    Taking a look at these examples of the Winston "Candid" campaign, do
these ads strike you as an expert in the field as having particular appeal
to people under the age of 18?
    A. I think perhaps half of them do, because the models in them are
younger- looking people, and this is the 1970s, it was the beginning of --
of the time of -- of a lot of anti-smoking activity, and that was affecting
youth smoking rates, that was the time of a lot of decline in youth smoking,
so I -- I think that we could think --
    For example, the man in the middle top, a young-looking man, you know,
might be a role model for -- for young people.
    Q. Well --
    A. The young-looking woman. And, you know, I'm -- "If I'm going to
smoke, I'm going to do it right." You know, those were slogans during that
-- that period of time. And, you know, I think that -- you know, you need to
also think of this within the context of that entire document in which at
the Hilton Head presentation they were talking about multiple brands and
multiple strategies. This is one. And it may -- this is only a sampling of
the ads that came out during that -- that period. This is six ads. You may
have selected the ones with the oldest people on them. You know, I don't --
    I can't attest to how valid this is as a representation of the "Candid"
campaign. I can attest to the fact that in the Hilton Head presentation,
that the major thrust of what RJR wanted to do, the number one thing they
wanted to do was attract the 14- to 24- year-old age group.
    Q. So if we focus on that document, the Hilton Head presentation once it
begins with strategy and talks about what it's going to do, and we look at
the "Candid" campaign, the fact of the matter is that these ads don't have
any particular appeal to people under age; isn't that right, professor?
    *16 MS. WALBURN: Objection, asked and answered.
    THE COURT: You can answer it again if you want.
    A. I didn't say that at all. You are completely misrepresenting what I
said. I said this might have appeal to people under 18, it might fit the
times of the '70s, and these in fact might be misrepresentations of the
"Candid" campaign. And I don't know that, so I think you completely
misrepresented what I said.
    Q. I mean it should -- well it -- I'll strike that.
    THE COURT: Why don't we take a short recess at this time.
    THE CLERK: Court stands in recess.
        (Recess taken.)

    THE CLERK: All rise. Court is again in session.
        (Jury enters the courtroom.)
    THE CLERK: Please be seated.
    THE COURT: Counsel.
    MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
    Q. Professor, did you have a chance over the break -- I'm sorry. Are you
--
    A. I think I'm wired.
    Q. Okay. Did you have a chance over the break to look at a few of the
other advertisements in that booklet?
    A. I skimmed through the book, but I didn't study anything.
    Q. Would you turn to tab 77, professor, which is Exhibit X1356.
    A. Yes.
    Q. That was one you were already turned to; right?
    A. No, it wasn't.
    Q. Okay. And are those Meet the Turk ads that you reviewed?
    A. I looked at this document. It was one of the documents in the three
boxes that you -- that the tobacco industry provided last week.
    Q. Didn't you say prior to our break that you had seen the Meet the Turk
ads as part of the review in the work you did here --
    A. No.
    Q. -- in this matter?
    A. I said I had asked for -- for them, and I believe I saw a few, but I
did not see the entire Meet the Turk campaign.
    Q. You don't know whether it was one of those campaigns that had just
two or three or four ads, or whether it was a campaign that had a lot of
ads?
    A. No, I don't.
    Q. You know it was a very short-running campaign, I think as you said on
Monday; correct?
    A. I don't believe I said that on Monday.
    Q. So before you came to give your testimony, you had seen some of the
Meet the Turk ads; correct?
    A. I had seen briefly this page, and I may have seen Meet the Turk ads
in my thousands of ads that I looked at.
    Q. I'm sorry because my question was unclear, and I just realized it
from your answer. In the course of the work you did for the state of
Minnesota and Blue Cross prior to the time that exhibits were exchanged in
connection with testimony, in the course of the work you did, you asked for
and received copies of Meet the Turk ads; am I correct?
    A. I received --
    I asked for Meet the Turk ads at some point. I also independently was --
had received boxes of ads, and I believe in those might have been Meet the
Turk ads, but at this point sitting here I can't remember whether I actually
saw Meet the Turk ads prior to seeing this document.
    Q. You -- you do remember asking for them though.
    A. I remember mentioning, yes, that.
    *17 Q. Now you didn't show the jury during your direct testimony any --
any Meet the Turk ads; did you, professor?
    A. No, I -- I didn't. That wasn't necessary as far as I -- I thought at
that point.
    Q. And the reason you didn't show those ads is because it's obvious they
had no particular youth appeal whatsoever; isn't that true?
    MS. WALBURN: Objection to the form, argumentative.
    THE COURT: You may answer.
    A. No, that isn't the reason. You know, it says explicitly in the
document that our successfully piloted, I think -- I'm -- I'm abstracting --
Meet the Turk campaign which will take us one step further to meeting our
goal of creating advertisements for the young adult 14 to 24, so that was
one document that -- that I -- I reviewed during this time. And I -- I
remember at some point that the Meet the Turk campaign was withdrawn because
of complaints about it. Then -- and that's -- I didn't bring that up in
testimony either. But the point of that was -- of that, bringing that up,
was that RJR followed up what they said at the board of directors meeting
with actual testing of a campaign, and it said explicitly that they were
testing that campaign to meet their number one objective, which was to
target 14- to 24-year-olds, and it said Meet the Turk.
    Q. Could you turn back to Exhibit 12493, and that's --
    I'm sorry. Bear with me just a moment, professor, I've lost the -- the
tab number on that. Oh, I'm -- I'm sorry, that was in the plaintiffs'
binder.
    Do you have it?
    A. 12493?
    Q. Yes.
    A. Yes.
    Q. And could you go to the Bates numbered page 1316 -- excuse me, 1315.
    A. Yes.
    Q. Okay. And that's discussing Meet the Turk there; correct? Do you see
that?
    A. Yes.
    Well wait a second.
    Q. Do you see the bullet points in the middle of the page, Bates 1315?
    A. Yes, I see that.
    Q. And where they reference Meet the Turk?
    A. Yes.
    Q. And right above there they talk about the 18-to-24 male age group?
    A. Yes. That was referring to Camel Filter advertising, and it was
talking just about share penetration, it wasn't talking about the main goal
of this entire speech, which was to increase the -- to attract the 14-to-24
age group.  So this is presenting some data on 18 to 24, but it doesn't say
18 to 24 is our target group.
    Q. What --
    The Meet the Turk campaign -- you just referenced Camel Filter. Meet the
Turk was a Camel Filter campaign; correct?
    A. Yes.
    Q. Could you turn now to tab 77.
    MS. WALBURN: Can we have the exhibit number?
    MR. WEBER: Yes, I'm sorry. X1356.
    Q. Do you have that, professor?
    A. Yes, I do.
    Q. And do you recognize that as a series of Meet the Turk ads?
    A. I recognize it as a sample of Meet the Turk ads that the tobacco
industry put on this piece of paper.
    Q. Now you said that campaign only ran a short period of time. Could you
look at the screen for me rather than go back in the book -- if you want to
go to the book, absolutely do it -- and you note that there were some
problems with whether the Meet the Turk campaign could really be used
because there was a Greek -- Grecian/Turk war going on?
    *18 A. That's what it says.
    MR. WEBER: Now, Your Honor, I'd move under 104 at this time to introduce
these Meet the Turk ads in X1356 for demonstrative purposes.
    MS. WALBURN: No objection provided that they're subject to later proof.
    THE COURT: Okay. Is this complete? I mean are these just selected ads,
or is this a --
    Are these all the ads?
    MR. WEBER: This, I believe, is all the Camel Filter ads for Meet the
Turk.
    THE COURT: Okay. They will be received on that basis.
    MR. WEBER: But we will tie that up with evidence later, obviously, under
104, Your Honor.
BY MR. WEBER:
    Q. Now -- it didn't work on the scanner? Okay, forget it. Oh, that's --
okay.
    Now taking a look at this series of Meet the Turk ads, professor, is
there anything about Meet the Turk that strikes you as not appealing to
adults but particularly appealing to youth?
    A. I find these would be particularly appealing to the 14- to-24 age
group, and I'd like to just point out a few things. One is down here -- well
actually this -- this young man is very attractive for this period of time,
1974-'75. You remember people kind of wore long hair there, and so he's --
he's an attractive, slightly older person who would fit very nicely as a
peer leader.
    I think you can see in this ad that he's surrounded by his peers, so
he's a popular person. I think that would be quite appealing to the -- the
whole range of 14 to 24. For the 14-year- old, they see that being an adult
or being mature, having fun with your friends, includes smoking cigarettes.
    We have down here the -- the Turk on a motorcycle. That certainly would
be appealing to young males. Leaning out of the car is an attractive female,
so if you smoke cigarettes, you might be more appealing to the opposite sex.
So there is a number of themes in Meet the Turk that would be appealing to
an adolescent and potentially a young adult, but certainly an under-age teen
would find this young man attractive.
    Q. Now the question I'd asked was whether there was anything in this ad
that was particularly appealing to youth as opposed to people 18 and over.
Now are all --
    Is everything you just said particularly appealing to youth as opposed
to those 18 and over?
    A. Well as I mentioned, this is -- I was referring to the 14-to-24 age
group, which was what this document is all about, which is how do you appeal
to the 14-to-24 age group. So this would be appealing to -- to a slightly
older, maybe 18 to 20, as well as under-age. You know, after that age, I
don't believe that they -- that older people would find this particularly
attractive. But that's not --
    My area isn't adult development, my area is adolescent development, so
I'm commenting on that.
    Q. So you're not speaking at all, as you sit here, with respect to any
of these ads as to the degree of adult appeal they might have; is that
right?
    A. Well I can speak to whether they are appealing to the developmental
tasks we talked about, and if they do appeal to those, then they're going to
be very potent, particularly for under-age teens, because images of being
sexually attractive or being independent or being physically attractive,
those are most potent during the stage of adolescence. So the advertisement
is going to be most potent for adolescents, and that's backed up with the
data that suggests that advertising campaigns are three times more effective
with under-age teens than with adults.
    *19 Q. They didn't test Meet the Turk and find it three times more
appealing to under-age teens; did they, in that study?
    A. They looked at data from 1979 on forward, and -- and they did look at
a -- a very long period of time.
    Q. Now attractive people in ads appeal to adults, too; don't they,
professor?
    A. I can't really respond to that.
    Q. And there's lots of people 18 and over, indeed the vast majority of
the motorcycle market is 18 and over; isn't it?
    A. The --
    Q. Do you know that?
    A. First of all let's -- let's clarify that. Advertising is not supposed
to be directed at anyone -- at anyone under age 21. That is what the tobacco
industry agreed on in 1964. So let's -- let's look -- agree to that. You
have to be able to put yourself in an adolescent mindset, and so looking
ahead to motorcycling at -- you get your license -- your permit at 15 and a
half, 16, this is extremely appealing to that particular age group.
    Q. My question was: The vast --
    Isn't the vast majority of the motorcycle market people 18 and over? Do
you know the answer to that?
    A. I'm not sure what you mean by "motorcycle market." You mean --
    Q. People who buy them and use them. Vast majority 18 and over.
    A. But that doesn't really mean whether they're going to be -- that's
going to be more appealing in an advertisement. What's going to be most
appealing in an advertisement is whether it meets the developmental tasks,
and it doesn't meet the developmental tasks of adulthood, necessarily, to
have a motorcycle in there.
    For young teens and young teen males, motorcycling, it's one of --
motorcycling is one of -- or those motorcycle magazines are among their
favorite magazines.
    Q. You don't have any data that says motorcycle magazines are favorite
magazines of teens; do you, professor?
    A. There is an article that just came out three weeks ago in the Journal
of the American Medical Association that actually ranks the -- which --
which magazines teens are most like -- which have the highest percentage,
and I -- I remember, and I'd have to look at that document to be sure, but I
remember that motorcycling and those kinds of hot-rodding were among the
ones that had the highest percentage of young readers.
    Q. Isn't it true that the motorcycle magazines all have primarily
over-21 readership, according to magazine industry demographic statistics?
Do you know that?
    A. I believe they have a majority, but what this article talked about
was that if you got to even -- if you got to 35 percent of your readership
being under age, if 35 percent of your readership was under age, there was a
90 percent probability that it was -- that they would be -- there would be
advertising for cigarette brands that were primarily cigarettes smoked by
youth.
    Q. Now --
    A. So it's a smaller -- it takes --
    It's a smaller percentage that looks like it would have an impact.
    Q. And let me go back to my question now. Would you agree that the vast
majority of people who buy motorcycles and use them are 18 and over?
    *20 A. I would agree with that, but I'd also state that teens are
interested -- teen boys in particular talk about motorcycles, and they're
interested in motorcycles.
    Q. And you mentioned there was an attractive woman in one of these ads;
right?
    A. I thought she was attractive.
    Q. And that's nothing that people 18 and over aren't interested in; is
it?
    A. When you're an adolescent and you're going through the process of
learning to date and looking for a partner, you are obsessed with the idea.
Am I attractive? What is attractive? Will I find a partner? There's no other
time in life when you are more obsessed with that idea and what is or isn't
attractive.
    Q. My question was: People 18 and over are interested in seeing ads for
adult products that have attractive members of the opposite sex in them;
right?
    A. They may or may not be. That's not my area of expertise. And I would
imagine that the -- since this area of attractiveness, this is a time in
life when it is most potent, that that's going to have more influence at
that point.
    Q. So you don't know whether or not in ads for adult products, marketers
use attractive men and attractive women? You don't know that?
    A. They use them at some point. I'm sure they use attractive men and
attractive women, but -- you know, in cigarette advertisements they use
attractive men and attractive women that are young-looking and appeal to
under- age youth.
    Q. Don't ads for adult products use attractive, young- looking people to
try to get the attention of other adults? Or -- or is that an area you --
you just don't know about, professor?
    A. Well what the adult market, the -- you know, the --
    It doesn't make much sense. With the adult market you have a very small
amount of people who switch from brand to brand. By the time they're an
adult you've already attracted the person to a -- to a particular brand, so
you are really interested in switching, and it's a very small percentage of
-- of smokers who switch outside of -- of a brand, and so it seems to me
that it's -- that these attractive people, particularly if they're
attractive to young people, that it would be most potent and -- and really
more appropriate for younger -- for a younger audience.
    Q. Now do you know these ads were tested on people 18 and over?
    A. I know that they -- that -- all I know is -- not all I know, but what
I know is that these ads were successfully tested to meet the objective of
increasing the young adult franchise and that they explicitly linked Meet
the Turk with 14- to 24-year-olds.
    Q. And when they talked about those ads at that board presentation, what
they talked about was young adult males 18 to 24, and they talked about the
new Meet the Turk campaign; correct?
    MS. WALBURN: I'm going to object to the markings and representations by
counsel since that's referencing two different parts of that document.
    THE COURT: Well you can answer the question.
    A. All three of those points are within the context of an entire
document, so you keep picking out key little points of the document, and
there's nowhere in this document other than at the very beginning when they
define young adult males -- or young adult people as 14 to 24, so yes, you
might have had data on share penetration among 18- to 24-year-olds that you
reported on here, and your later document, Meet the Turk, was referring to
14- to 24- year-olds, and this entire document refers to 14- to
24-year-olds, so this -- you're -- you know, that's just taken out of
context.
    *21 Q. Well the entire document, you'd agree, though, once they begin
discussing strategy in chart seven about what they're going to do, there's
no reference whatsoever to any age under 18; isn't that right?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: Sustained.
    MR. WEBER: I'll withdraw it. I'll withdraw it, Your Honor.
BY MR. WEBER:
    Q. How do you know that these themes about attractive people,
independent people, attractive and independent people, men and women, how do
you know these things aren't potent with adults too? Have you ever studied
those themes among adults?
    A. You know, by the time you reach adulthood, part of a process of
adolescence is to get to a place where you have a sense of independence, of
identity, of a sense of attractiveness. You generally have a partner. Those
themes in general would not be -- would not be as potent.
    In my field, adolescent development, those themes are of key importance,
and part of the process of adolescence is to come to grips with those, to by
the time you're 21 have a -- a sense of those -- have completed those
developmental tasks, so the assumption is that those are not as -- as potent
in adulthood.
    Q. Now with respect to the question I just asked you about whether
themes of independence and attractiveness, things like that, are potent for
adults, your statement that they're not as potent is your assumption;
correct?
    A. It is my opinion and my belief based on the last 30 years I've spent
with adolescents.
    Q. But you did say the assumption just a moment ago; didn't you,
professor?
    A. My belief based on 30 years of experience is that those are not as
potent.
    Q. Didn't you just say it was an assumption just a moment ago,
professor?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: You may answer that.
    A. My belief based on 30 years of working with adolescents and
adolescent development is that it's not as potent with adults.
    Q. Didn't you just say, professor, that it was an assumption?
    A. My belief based on 30 years of working with adolescents is that it's
not as potent with adults.
    MR. WEBER: Your Honor, may I ask that the witness be instructed to
answer the question?
    THE COURT: Well, I think the point's made.
    MR. WEBER: Okay.
BY MR. WEBER:
    Q. Now you'll --
    You also mentioned a moment ago, professor, the age range in which --
you know, you defined adolescence, and I think adolescence, as you said on
Monday and then just referenced a moment ago, goes up to 21 in your
definition?
    A. Up -- up to 21, from about age 10-11 to 20, and 20 up to -- you know,
20 -- 20.
    Q. To 21, not through 21 if I'm hearing you right.
    A. You know, there is not a magical -- you know, a -- a complete cutoff.
It's about the second decade of life, and so -- it's about the second decade
of life.
    Q. Now you confused me, because I don't know whether that ends at 20 or
goes up --
    A. Well --
    Q. It ends at -- it ends at 21.
    *22 A. The developmental tasks that I talked about, for some people they
may have completed them at age 19 and others may not complete them until age
22 or so forth.
    Q. Indeed, there are many people in society who don't complete those
developmental tasks till 30s, 40s, 50s; right? They're all working on them.
    A. There is no other period of time when those developmental tasks drive
that -- drive your behavior as really during early and middle adolescence.
That is the driving time. So yes, there are people in their 20s and 30s
still worried about independence and am I attractive, but not with that same
emotion, that same, you know, obsession as you find with young and middle
adolescence.
    Q. Aren't the best-seller lists for non-fiction over the past 10 years
traditionally topped by self-help books for adults to deal with issues like
intimacy, independence and autonomy?
    MS. WALBURN: Objection, relevance, and outside the scope of direct.
    THE COURT: You may answer if you know.
    A. I don't really know. All I know is that Men are from Mars and Women
are from something -- Venus or Jupiter or --
    Q. Somewhere.
    A. -- something. That's been on the best-seller list for a while. So no,
I really can't answer your question. There certainly are developmental tasks
in adulthood, but that is not my area of expertise.
    Q. And you haven't studied that with respect to the adult population as
to the potent themes and issues for them; is that fair to say?
    A. It's fair to say that the themes that I presented on adolescence are
-- have been studied extensively by many adolescent scientists who would
agree those -- that during adolescence, those themes are the most potent
themes during that age group and not at any other age group, not at
childhood and not in adulthood, for most people.
    Q. Now based on your definition of adolescence, you include -- include
as adolescents, plural, 18-year-olds, 19-year-olds and 20-year-olds;
correct?
    A. Yes. Those are late adolescents, or -- yeah, late adolescents, older
adolescents.
    Q. And all of these adolescents are people that the state of Minnesota
has decided can buy cigarettes legally; correct?
    A. Yes, they can buy cigarettes legally in Minnesota.
    Q. Could you turn, professor, to Exhibit 12579. It's one of the exhibits
you spoke about earlier and -- and that's already in evidence. Do you have
that, professor?
    A. Yes, I do.
    Q. Now you said just a moment ago that switching was very, very small.
Remember that, the amount of switching?
    A. Yes, I did.
    Q. Okay.
    A. Although I -- I will say that I'm not a switching expert.
    Q. But that's --
    But you believe switching is very, very small. That's what you said;
correct?
    A. Well I read in one of the documents that the amount of switching is
small.
    Q. Now would you turn to page three of that document.
    A. Yes.
    Q. And -- if I can get that up -- ask you if that document says "Loyalty
rates from the 1983 SDS (i.e., the percentage of smokers who smoked Marlboro
at age 18 and still do) show that Marlboro loses about 28 percent of its
18-year- olds by age 20 and another 14 percent by age 24 -- a total loss of
42 percent over the six years between 18 and 24." Do you see that?
    *23 A. Yes. And -- and I see that at the very end it says but Marlboro
gains eight-tenths of a point by becoming a first brand at age 18, which
means that they chose their first brand at under age 18, not right when they
turn 18, so it can afford the .3 switching loss and still come out .5 points
ahead. So even if they do do switching during this time, 18 to 20 years old,
by attracting under-age smokers they're still coming out ahead.
    Q. So do you agree that from age 18 to 24, that there is a substantial
amount, about 42 percent, of switching among Marlboro smokers?
    A. I would say that in 1983, that that is what this document says. As I
said, I'm not a switching expert and so I can't attest to what goes on, you
know, throughout -- I don't know what it is right now.
    Q. Professor, could you put that book aside for a minute, and I want to
ask you questions about another matter in the '94 report, please.
    A. Yes.
    Q. Okay. And you remember yesterday we talked about the preface with
Surgeon General Elders where the Surgeon General said there were two main
effects of cigarette advertising, one was an over-perception issue, and --
and we had some questions and answers about the over-perception issue
yesterday, you'll remember?
    A. Yes, I do.
    Q. And the other major effect she said was that cigarette advertising
can affect self-image and -- and make it appear cool. Do you remember that?
    A. Yes.
    Q. That was the second major effect of two cited by the Surgeon General;
correct?
    A. It was two in the preface. It really wasn't in the major conclusions
to the Surgeon General's report. It -- but she -- she chose to emphasize.
    Q. Okay. Could you turn to page 82 of this report. Do you have that
chart?
    A. Yes, I do.
    Q. And I know this may be a little hard for the ladies and gentlemen of
the jury, so I'll try to take it piece by piece with you, professor.
    Now this is a chart in the Surgeon General's report that comes about --
comes from the Monitoring the Future project, and that's one of those
University of Michigan projects we talked about the other day; correct?
    A. Yes.
    Q. And if you look up here, what they're doing is trending high school
seniors' beliefs and attitudes about smoking and smokers. Do you see that?
    A. Yes, I do.
    Q. And there is some data here in some categories for '76, and then it
goes on to '81, '86 and '91; right?
    A. Yes.
    Q. And would you agree with me that the '81 data set is the first data
set that is complete for all columns on this -- on this chart in the Surgeon
General's report? Do you follow me?
    A. It's the first time that the Monitoring the Future didn't ask about
whether smoking is a dirty habit or that the harmful effects of cigarettes
have been exaggerated, so they didn't ask that question in 1976.
    Q. Right. But -- and --
    But from '81, '86 and '91, it appears they asked the same set of
questions; correct?
    A. Yes, that's right.
    Q. Okay. Now let me start in '81, then, with respect to the percentage
of people, high school seniors, who agree that smoking is a dirty habit. Do
you see that?
    *24 A. Uh-huh.
    Q. And from --
    In 1981 that was 65 percent?
    A. Uh-huh.
    Q. And in 1991 that was 71 percent; correct?
    A. Uh-huh.
    Q. So practically three-quarters of high school seniors in 1991 thought
that smoking was a dirty habit; correct?
    A. 71.6 percent.
    Q. All right. Then let's go down to the next one, and the question asked
there was how do you think your close friends feel or would feel about your
smoking one or more packs of cigarettes a day, and the percentages are the
percentage who disapprove; correct?
    A. I -- I think I lost you.
    Q. I'm sorry, professor.
    A. Oh, okay. I --
    Q. It's right under the smoking-is-a-dirty-habit question.
    A. Yes, I see what you're talking about. Okay.
    Q. And that's the --
    And what they listed were the percentage of peers -- of close friends
who would disapprove of someone smoking one or more packs of cigarettes a
day; correct?
    A. That's right.
    Q. So that's a disapproval number, and that disapproval number was about
three-quarters in '81 and about three-quarters in '91; right?
    A. Right.
    Q. And that relates to a peer issue; doesn't it? If we go back and talk
about some of the developmental tasks and issues that you talked about
earlier, how your friends -- how you perceive that your friends would feel
about you if you did something relates to a peer issue; correct?
    A. Yeah. The -- please remember, these are high school seniors, so they
are 17 or 18 years old, and as I mentioned, the peak in peer conformity is
eleven to 14 years old, and that -- remember that most of the beginning
smoking occurs in early and middle adolescence, that's when the sharp
increase comes, so by the time you're a high school senior, peer conformity
isn't the issue. That's not the main issue at that point.
    So we're measuring a group of people who aren't as concerned with peer
conformity. The peak of that is in the younger age group.
    Q. But these are the attitudes that the '94 Surgeon General report, of
which you were senior scientific editor, chose to put forth on over two
pages of the report; correct?
    A. But they do not reflect all of adolescents, they reflect 18-year-olds
-- or 17- and 18-year-olds, so that you can't generalize from these data to
all of -- all of adolescents.
    If we remember, that the Monitoring the Future didn't start surveying
eighth graders and 10th graders until the '90s, so we didn't have these data
on younger adolescents which -- which may have been -- may have been useful.
    Q. But the choice to take up two pages of the report on this was by the
scientific staff who put the report together; correct? It's two full pages.
    A. It's two --
    Yes, it's two full pages. I believe the epidemiology chapter is quite
long.
    Q. Now they also asked people their opinions about smokers; didn't they?
    A. Yes, they asked that of high school seniors.
    Q. Now --
    And it says, "In my opinion, when a guy my age is smoking a cigarette,
it makes him look," and then it gives percentages of agreement; correct?
    *25 A. Uh-huh.
    Q. The first one, makes him look like he's trying to appear mature and
sophisticated; right?
    A. Yes.
    Q. And that's not a positive rating, that's someone who's trying to
appear. And if you look, those numbers are around 60 percent in '81 and in
'91; correct?
    A. Well I don't know if we can interpret how a 12th grader, whether they
say that is negative or positive, that he's trying to appear mature and
sophisticated. I -- you put the emphasis on "trying." I'm not sure a 12th
grader reading this is -- I think they're assessing that that person is
trying to appear mature and sophisticated.
    Q. You don't think a 12th grader would recognize the difference between
being asked whether someone is mature and sophisticated or trying to appear
mature -- that's an "a" -- mature and sophisticated, you don't think a 12th
grader understands the difference on that?
    A. They probably do.
    Q. Now if you go down to rugged, tough and independent, --
    A. Yes.
    Q. -- those are themes that you mentioned; correct?
    A. Yes. These are themes that come up all the time when I'm doing the
particular -- I do, really, this exact exercise, but I do it with young
adolescents. So in my programs, and I'm talking about hundreds of classrooms
and I'm talking about classrooms in Minnesota, and I -- and I ask why do
people your age start smoking, one of the responses is to appear mature,
independent, sophisticated and so forth. So those are reasons given by young
people in rather large percentages, and those come up over and over and over
again.
    By the time they're a high school senior, as we saw, at this point
they're smoking already and they're thinking about quitting.
    Q. Now for rugged, tough and independent, and this is whether when
somebody is smoking it makes him appear rugged, tough and independent, the
Surgeon General's reported -- report states that under 10 percent of the
students interviewed agreed with that; correct?
    A. The Surgeon General said that among 12th graders, that it -- it makes
him look rugged, tough, independent --
    Well at that age, no, but it -- if you're in the seventh grade, that's a
different story. And we don't have the data from seventh graders, so you're
going to have to rely on my experience with thousands of children.
    Q. Okay. My question was: Does the Surgeon General report show that with
respect to the rugged, tough, independent category, less than 10 percent of
the people in '81 and '91 agreed that it made someone look rugged, tough or
independent to smoke? Is that what -- is it less than 10 percent in both '81
and '91?
    A. For high school seniors who are 17 or 18 years old, as opposed to
young and middle adolescents where this is more powerful, we reported that
in the Surgeon General's report, less than 10 percent for that older age
group when this is not as relevant.
    Q. And you'll remember, professor, that when we started this I mentioned
right up here at the top how this reported on a trend in high school
seniors' beliefs. That's the whole title of the chart; isn't it?
    *26 A. Yes, it is.
    Q. Okay. So you can assume that the title of the chart will apply to the
rest of the questions.
    Now with respect to whether someone who is smoking appears mature --
makes -- makes a person look mature or sophisticated, you've got around a
five percent agreement with that in both '81 and '91; correct?
    A. For a high school senior, they're not going to think that a person
looks mature and sophisticated. When you're eleven, 12, 13, 14, that's when
you're looking to how to accomplish your developmental tasks, that is the
key time of the low self-image, greater peer conformity, and thinking how am
I going to achieve a certain kind of identity. By age 18, that peer
conformity is back down, that's not a driving force, you have a pretty -- a
much stronger sense of self. So, you know, for the most part at that -- at
that point, young people at age 17, 18, they're already beginning to think
about quitting smoking.
    Q. Okay. My question, professor, was with respect to whether someone
smoking appears mature, makes a person look mature or sophisticated, you got
only -- you got only around a five percent agreement with that in both '81
and '91; is that correct?
    A. For high school seniors, where this isn't as big an issue as for
younger adolescents, we had only five percent.
    Q. Now that issue that we mentioned a moment ago about the Surgeon
General saying that one of the effects of cigarette advertising was making
smoking appear cool, they actually asked the question here about whether
smoking made somebody appear cool or calm or in control. Could you read to
the jury what the 1981 figure was for the number of -- percentage of people
who agreed that smoking made a guy appear cool, calm or in control, the
percent?
    A. Well in 1981, among high school seniors who are 17 or 18 years old,
and the majority of whom have already started smoking, only six percent
think that it's cool, calm -- the person would be cool, calm, in control in
1981.
    Q. And in 1991, professor, for the cool, calm or in control number,
what's that percent?
    A. For the high school seniors where being cool isn't nearly as an
important issue as in early adolescence, where we don't have this -- these
data, unfortunately, cool, calm, in control, only 5.3 percent by the time
they're that age.
    Q. And professor, I wanted to blow that up just a minute to a large size
for the ladies and gentlemen of the jury so we can see that these numbers
we're talking to here aren't double-digit numbers, they're a single digit
with a decimal point; correct? Because it was kind of hard to -- to look at
on the larger scale,, the ones we just went through; correct, 6.2 percent
and 5.3 percent?
    A. Yes. All the ones we went through refer to primarily older
adolescents.
    Q. Now this --
    There's a second page to this survey interview -- or survey information;
correct, and they did it about girls. Do you see it there?
    A. Yes, I do.
    Q. That last set of questions we talked about was boys, and -- and this
one is now girls. Okay?
    *27 A. Yes.
    Q. Now --
    And when they asked, if a girl is smoking, does she look like she is
trying to appear mature and sophisticated, we had high numbers there again;
correct, in the 64 percent range?
    A. For these 12th graders, that's their -- their perception of a female
smoker, that she's trying to -- that, you know, a little over 60 percent are
trying to appear mature and sophisticated. When they're in younger
adolescence, they actually say that's the reason people their age start, is
to look mature and sophisticated.
    Q. Now then they ask whether, if a girl smokes, it makes her look
independent and liberated. Do you see that?
    A. Yes, I do.
    Q. And in 1981 that was 11.2 percent, and in 1991 it was 9.6 percent;
correct?
    A. Correct. And if we can remember from what we talked about yesterday,
that those -- the advertisements that appealed to women being liberated and
independent were effective only in the under 18 age group, only in that age
group, and it was -- they were effective in the 17-year-old, 16-year-old,
15- year-old, 14-year- old, not in the 18-and-older age group. So that is
the age group which clearly were -- where that was clearly an appeal to them
in the late '60s.
    Q. So the answer is correct, I did read those percentages correctly?
    A. I believe you read the percentages correctly, and I wanted to clarify
that these are 17- and 18-year-olds where this would not be as relevant as
for a younger adolescent.
    Q. Now then they also ask about whether girls' smoking appears mature
and sophisticated; correct?
    A. Yes, they do.
    Q. And those numbers were single-digit responses as well, 6.9 percent
and 4.5 percent; correct?
    A. Yes. Again, they were small percentages because they're wanting to
appear mature, sophisticated. Remember, they think that they're in the
center of a stage is everyone is looking at them. That's early adolescence,
that's 11 to 14. You're not -- we wouldn't expect it to show up at this
point. In fact this must include young people who smoke, so they themselves
don't perceive of it as mature or sophisticated; at this point they're
thinking about quitting.
    Q. But I did read those numbers correctly; didn't I?
    A. I believe you did, counsel.
    Q. Now they also ask, again, whether a girl looks cool, calm or in
control, and again we see percentages of 5.5 and 4.1; correct? Have I read
those correctly?
    A. Yes. And again I'll remind the jury that when I asked seventh graders
why do people your age start smoking, being cool came up, I would say, in
over 90 percent, 95 percent of the classrooms that I deal with with seventh
graders. So being cool is clearly perceived by the younger adolescent as a
reason, a function that young people begin to smoke.
    Q. Now they asked a series of other questions of these students; didn't
they? And one was "I prefer to date people who don't smoke," and then there
was an agreement or disagreement. Do you see that?
    A. Yes, I do.
    Q. And that deals with one of the tasks you've been speaking about,
which is the sexuality/intimacy task; correct?
    *28 A. Ah --
    Q. Dating?
    A. Well the task was sexuality, that is -- and a concern is will I
attract a partner? And -- and am I attractive? So those, you know --
    This one is a preference for whether they want to date smokers or non-
smokers.
    Q. And what this shows is that in 1981, 66.5 percent said they'd prefer
to date people who don't smoke, and in 1991 74 percent agreed with that;
correct?
    A. That's what the data say at this -- at that point.
    Q. Now they also ask whether the students agreed with the concept that
smokers know how to enjoy life more than non-smokers. You see that?
    A. That's right.
    Q. And in 1981 only two percent, 2.8 percent agreed with that, and in
1991, 3.6.
    A. Well that -- I think that at that point, seniors -- that's a kind of
crazy question because, you know, they -- anyway, that -- the percent they
--
    They probably don't know whether a smoker or non-smoker would enjoy life
more at that point.
    Q. Then on the issue of strongly dislike being near people who are
smoking, strongly dislike being near, in 1991 essentially close to half
agreed with that concept, strong dislike about being near people who are
smokers -- or who are smoking; right?
    A. Yes. I think it's --
    At that point they were concerned with secondhand smoke.
    Q. And then the other one I'll touch on now is do you disapprove of
people over the age of 18 who smoke one or more packs of cigarettes a day,
and from ' 81 to '91 that number has remained close to 75 percent, in the
three-quarters range; correct?
    A. Well it also looks like it peaked in '86, and it actually went down
between '86 and '91. So something must have occurred between '86 and '91 so
that there was more approval of people who smoke one or more packs of
cigarettes per day. Also, the line above that you didn't read, but people
who personally don't mind being around people who smoke, you know, a third
don't mind being around -- around people who smoke, so -- you know, even
with all of the information about the effects of secondhand smoke.
    Q. What's the percentage in the adult population that smokes?
    A. I believe it's about 30 percent.
    Q. Okay. So if we assume random distribution, about 30 percent of these
kids would have parents who smoke; right? Not -- not perfect. Ballpark.
    A. No, probably less if both parents smoke.
    Q. Well just one. About 30; wouldn't it?
    A. I think it would be less than that.
    Q. So it wouldn't be surprising that kids who have one or more smoking
parents would say they don't be around -- mind being around people who are
smoking if their parents are smokers because they probably don't mind being
around their parents; right?
    A. Well I -- that's not what I've heard. I mean I know a lot of -- of
children in adolescence who don't want to be around their -- around when
their parents are, for example, smoking in the car. They'll open up the
windows, they'll, you know, do all kinds of things. I mean they like -- they
obviously love their parents, but they are not necessarily attracted to
their smoking. So I don't think those correlate very well.
    *29 Q. Professor, now as you said yesterday -- well let me back up a
second.
    MR. WEBER: Your Honor, I don't know what you want to do for lunch, but
I've got a few more minutes here before we break, or what's best for you?
    THE COURT: Go ahead.
    MR. WEBER: Okay.
BY MR. WEBER:
    Q. As we said yesterday -- or as you said yesterday, the advertising and
promotional expenditures increased from 1981 to 1991; correct?
    A. Yes, they did, and increased even more up through at least the data
that we received, 1994.
    Q. But they increased substantially from 1981 to 1991 over that 10-year
period, advertising and promotion; didn't they?
    A. Yes. Advertising and promotion increased, and the anti- smoking
activity greatly increased in the 1980s. I think you can all remember Nancy
Reagan Just Say No campaign which included just saying no to smoking. There
was a great deal of activity in the 1980s that also has to come into play in
looking at that decade.
    Q. Advertising and promotional expense increased substantially from '81
to '91; did it not?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: You may answer that.
    A. Advertising and promotional expenses increased, but that's not the
only thing going on during the 1980s. There was a great deal of anti-smoking
activities going on in the 1980s that might affect the data that we're
looking at right here.
    Q. Now with that increase in advertising and promotion from '81 to '91,
the percentage of students in this -- reported in this Surgeon General's
report who thought smoking was a dirty habit grew; correct?
    A. Yes. That would indicate that the anti-smoking efforts were in fact
working.
    Q. The percentage who thought boys who smoked looked rugged, tough or
independent upticked slightly; correct, from 8.6 to 9.8 percent?
    A. I'm not sure that that's statistically significant.
    Q. Okay. The percent who thought boys looked mature or sophisticated by
smoking ticks down a little; correct?
    A. I don't believe those are significant changes.
    Q. And the percent who thought boys looked cool when smoking, that went
down almost one full percentage point; correct?
    A. Again, I'm not sure those differences are significant. That's only
one percent.
    Q. And over the same period of time for girls, their opinions about a
girl, whether her smoking made her look independent and liberated, that went
down from '81 to '91; correct?
    A. That went down slightly. Again, in the context of the 1980s, there
was increased advertising and promotion spending, but there was greatly
increased research and effort, and at the -- at the highest levels, the
President's wife talking about saying no. So there was a lot of things going
on in the 1980s that would affect these data.
    Any -- any attempt to connect just advertising and promotion to these
particular data as a kind of one-on-one relationship I -- I think is a false
kind of comparison.
    Q. And the percent who thought a girl who smoked was mature and
sophisticated went down over that period; correct?
    *30 A. It went down, and hopefully reflected the efforts of the anti-
smoking campaign during that time.
    Q. And the percent who thought a girl looked cool, calm, or in control
went down; correct?
    A. It went down slightly.
    Q. And the percent who preferred to date people who didn't smoke went
up; correct?
    A. Yes. I think during that time we learned quite a bit about the
harmful effects of secondhand smoke, and so that was -- that also played
into -- to this group of 17- and 18-year-olds, most of whom had already
started smoking if they were going to start smoking.
    MR. WEBER: Your Honor, I can move to another topic now or -- or we can
take a break, whatever you'd like.
    THE COURT: Why don't we recess. We'll reconvene at 2:00 o'clock.
    THE CLERK: Court stands in recess, to reconvene at 2:00 o'clock.
        (Recess taken.)

    THE CLERK: All rise. Court is again in session.
        (Jury enters the courtroom.)
    THE CLERK: Please be seated.
    THE COURT: Members of the jury, I just want to give you your periodic
reminder about not reading newspapers, magazines, watching TV or listening
to the radio, talking to your friends or family concerning this case.
    Friday will be a document day again, and that will be -- from the point
of view of the jurors, it will be from 9:00 o'clock to 3:00 in the
afternoon, and I believe that's going to take place in courtroom three. Is
that correct, Michele?
    THE CLERK: Yes, it is, Your Honor.
    THE COURT: Courtroom three. That will be next door for the jury. And at
3:00 o'clock those members of the jury that wish to stay and read their
notes or look at additional records, they can do that, but those that wish
to leave at 3:00 may do so.
    The attorneys will meet in this courtroom and we will hear motions in
the morning, and hopefully that will allow those attorneys that choose to to
go home early.
    Counsel.
    MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
    Q. Professor, could you turn to tab 30 in the notebook.
    MS. WALBURN: Could we have the exhibit number, please?
    MR. WEBER: I'm sorry, Ms. Walburn, that is AT000561.
    MR. WEBER: Your Honor, I'd move the admission of AT000561. It's a
magazine article from Life Magazine, it's self- authenticating under
902(16), and it's an ancient document since it's dated November 21, 1960 and
comes in under 803(16).
    MS. WALBURN: No objection.
    THE COURT: The court will receive AT000561.
BY MR. WEBER:
    Q. Now professor, do you see before you a -- actually it was on two
sheets, but a cover from Life Magazine, November 21, 1960?
    It's the first -- it should be the first two sheets there.
    A. Oh, yes, I see.
    Q. It ended up being put in half because Life Magazine was that large
size, do you remember?
    A. Yes, I see that.
    Q. And that's got a picture of the Kennedys, John F. Kennedy and
Jacqueline Kennedy on the cover?
    A. Yes, it does.
    Q. And the date is November 21, 1960?
    A. Yes.
    Q. And that's 37 and a half years ago now?
    A. Yes.
    Q. Now if you could turn in to the sheet labeled 57, and that's the
beginning article about a TV series called the Flintstones; correct?
    *2 A. Yes, it is.
    Q. And does it say under where it says "Stone Age Hero's Smash Hit,"
does it say, "TV's FIRST CARTOON FOR GROWNUPS STARS THE SUBURBAN
FLINTSTONES?"
    A. It says "TV'S FIRST CARTOON FOR GROWNUPS STARS THE SUBURBAN
FLINTSTONES," but it should be pointed out that the Flintstones was during
the 1960s the number one favorite show or show watched most often by
children under 11 years old.
    Q. So the answer is yes, it does say "TV's FIRST CARTOON FOR GROWNUPS
STARS THE SUBURBAN FLINTSTONES?"
    A. It says "TV'S FIRST CARTOON FOR GROWNUPS STARS THE SUBURBAN
FLINTSTONES," but it was clearly one for the family and very popular among
children.
    Q. And indeed that article goes on to say it was the only adult cartoon
series ever done expressly for television; does it not?
    A. I didn't read it closely in that way. I did see the information from
Advertising Age, which lists by age group, you know, what's the number one,
two, and the Flintstones was number one for children under age eleven.
    Q. Didn't you tell me yesterday that you didn't find statistical
compilations in Advertising Age reliable? Don't you remember telling me
that?
    A. I think what I said was that I didn't use it for -- for explaining
etiology, for explaining why kids smoked. I --
    Advertising Age is used to give, you know, ratings. I mean isn't that
what it -- it's for? So, you know, Advertising Age gives information on who
is watching TV, and eleven and under, Flintstones was right there.
    Q. So Advertising Age is good for some things but not others; right?
    A. Yes, that's right.
    Q. Now --
    A. And it is good for telling us that children were -- liked the
Flintstones and watched them. As did The Beverly Hillbillies, The Beverly
Hillbillies was also among the top 10.
    Q. Now if you look in the last line on the left-hand column, do you --
would you agree with me that the article refers to the Flintstones as the
only adult cartoon series ever done expressly for television? Would you
agree that that's what it says in that last line on the left?
    A. I'll agree with that, but it doesn't exclude the fact that many, many
children watch this cartoon. For it to be number one for children, many,
many children watch the Flintstones. In fact I watched the Flintstones and I
was a child during that -- during the sixties.
    Q. Now do you know who else sponsored the Flintstones with R. J.
Reynolds?
    A. No, I do not.
    Q. Do you know that it was the Alka Seltzer Company?
    MS. WALBURN: Objection to relevance and form of the question.
    THE COURT: As to the form of the question, sustained.
    Q. Let me ask you this, professor: Would the fact that the Alka Seltzer
Company was a co-sponsor of the Flintstones during the years that Reynolds
sponsored it tell you anything about whether the people who were buying
commercial time on it thought it was an adult audience or a junvenile
audience? Would that give you any information?
    MS. WALBURN: Objection, form.
    *3 THE COURT: Sustained.
    Q. Now you referred to Advertising Age, that data that you were talking
about.
    A. Yes, I did.
    Q. Do you have that document there?
    A. I believe it was in our document book, but I don't know the exact
document number.
    Q. Well would --
    Is that document 26072?
    THE COURT: Counsel, I don't think that's a fair question.
    MR. WEBER: Okay.
    THE COURT: Show her the document.
    MR. WEBER: Could I approach, Your Honor?
    THE COURT: Show her the document, please.
        (Document handed to the witness.)
BY MR. WEBER:
    Q. Is Trial Exhibit 26072 the document to which you were referring in
Advertising Age?
    A. Yes, it is.
    Q. And did you get that from the plaintiffs' lawyers in this case?
    A. Yes, I did.
    Q. Okay. And that's what leads you to believe that the Flintstones was
drawing the largest audience among what age group, 11 and under did you say?
    MS. WALBURN: I'm going to object to the form of the question and the
implication. This document was produced by R. J. Reynolds in this
litigation.
    THE COURT: Rephrase the question, counsel.
    Q. And you concluded from that document that the Flintstones was drawing
a large audience of 11 and under; is that correct?
    A. You know, when I -- when I first saw the Flintstones commercials I
was a child and I watched them. I liked the Flintstones. My friends watched
the Flintstones. It makes common sense, it's a family show. I asked, you
know, are there data on this, and these data were -- were produced. So -- so
I was really relying on common sense. Anyone looking at Flintstones could
see that it would be appealing to children. These data confirm that.
    Q. You made a specific statement with respect to that data, though, and
that it was the largest audience among what -- what was the age group? I
don't have the document in front of me. Was it 11 and under you said?
    A. You know, counsel, this is not the exact document that I saw
previously. The one I saw previously was dated 1966 and this is 1965.
Because the Flintstones, I remember, was number one for the two- to
five-year-olds and six- to 11-year-olds, and in this one Flintstones is down
to number four in the six- to 11-year-olds, so there's some mix-up in the
data.
    I think, either way, you can see that the Flintstones was popular in the
' 60s among children.
    Q. Now the data you were talking about from Advertising Age, about the
popularity of the Flintstones, was 1966 data you remember?
    A. Yes.
    Q. And that was the data referred to. And the document I just showed you
is reporting 1965 data; correct?
    A. Yes, it is.
    Q. And I'm sorry, professor, I -- I don't have that. Could you read the
-- the exhibit number on that just for the record so we know to which piece
of paper we're referring?
    A. 26072.
    Q. 26072. Now, and --
    And that data was important with respect to the way it reported the
breakdown of the demographics of the show between adult and junvenile;
correct?
    *4 A. The -- the point was is that children eleven and under watched
this show, and it might contribute to children thinking that that was a part
of life, and it -- that that was a normal part of life. That was the point
that I made about both the Flintstones and The Beverly Hillbillies.
    Q. Now the exhibit in front of you from Life Magazine announcing the
beginning of the first adult cartoon series, that was 1960; correct?
    A. Yes.
    Q. November 1960.
    Do you know that R. J. Reynolds didn't advertise on the Flintstones in
1966?
    A. No, I'm not aware of that data.
    Q. Do you know that R. J. Reynolds didn't advertise on the Flintstones
in 1965?
    A. No, I didn't -- I don't know that.
    Q. Do you know that R. J. Reynolds didn't advertise on the Flintstones
in 1964?
    MS. WALBURN: Objection, assumes facts not in evidence.
    MR. WEBER: This is cross-examination.
    THE COURT: You may answer if you know.
    A. Well we saw in the cartoon, which was a common-sense, really,
appraisal, I think the data -- the data I used was just a confirmation that
the Flintstones were -- were a popular show, and common sense, just looking
at those cartoons and the way that the credits were mixed up with the
advertisement, I don't believe I overstated at all that a child under age 11
seeing that would consider smoking part of the normal part of life, and
that's what I was saying, and -- and that -- and that's what I was saying.
    Q. Okay. Could you answer my question? Do you know that R. J. Reynolds
didn't advertise on the Flintstones in 1964?
    A. No, I don't know that.
    Q. Do you know whether people trained in advertising and marketing and
demographics and television rely on data from two-, three-years different
periods to determine who was watching the show in a two-, three-year
different period? Does anybody trained in advertising or marketing do that?
    A. I don't know that, the answer to that. I would imagine that they
would look from year to year and see who was watching the show.
    Q. Do you know that R. J. Reynolds only advertised on the Flintstones
for the first two years, the '60 to '61 season and the '61-'62 season, and
then they stopped? Do you know that, professor?
    MS. WALBURN: Objection, form of the question.
    THE COURT: You may answer if you know.
    A. I don't know that.
    Q. And do you know when they were advertising on the Flintstones, one of
the co-sponsors was Alka Seltzer?
    MS. WALBURN: Objection to the form of the question.
    THE COURT: Yes. That's been asked and answered, counsel.
    MR. WEBER: I'll withdraw it.
BY MR. WEBER:
    Q. Now you mentioned The Beverly Hillbillies also; didn't you,
professor?
    A. Yes, I did.
    Q. And I will do us all a favor by not resinging that song, but let me
ask you one question about it.
    THE COURT: What about the Flintstones, counsel?
        (Laughter.)
    MR. WEBER: Only if forced.
    Q. Now you noted in the 1994 Surgeon General's report that R. J.
Reynolds advertised on The Beverly Hillbillies and then eventually pulled
its advertising when they received successive monthly data showing a high
level of minors; correct?
    *5 MS. WALBURN: Could we have a page cite, please?
    MR. WEBER: I'm sorry.
    A. Could you show me that?
    Q. Yes. Page 170.
    A. 170?
    Q. Yes. Down in the lower left-hand column, could you begin with, "For
example, R. J. Reynolds...," and read that through the end of the paragraph.
    A. It says, "For example, R. J. Reynolds continued to sponsor The
Beverly Hillbillies even though the audiences for two selected individual
shows exceeded the code requirement; a later interpretation by the tobacco
industry held that the code would be applied to two successive months of
audience analyses rather than to selected specific shows. Later that year,
after monthly data showed high levels of minors, R. J. Reynolds ceased
sponsoring the show."
    Q. Now professor, back in that period of the sixties, do you remember
whether it was usual or unusual for sponsors of television shows to have
their sponsorship announced as part of the closing credits? Do you
understand my question?
    A. I believe so. And I -- I don't remember.
    Q. You don't remember whether --
    A. I remember the Flintstones because of the -- because the Winston tune
was so recognizable.
    Q. But you don't remember the closing credits or the introductory
credits for any show back in the '60s and the '50s where they used to say,
"Milton Burle show brought to you by" or "The Ed Sullivan show brought to
you by," you don't remember how that -- anything like that?
    A. I don't really remember that.
    Q. All you remember is that it happened with the Flintstones.
    A. I remember the Flintstones because I watched the Flintstones.
    Q. Now -- (coughing) excuse me.
    You didn't show or read to the jury any document from R. J. Reynolds,
did you, professor, that said that R. J. Reynolds believed that advertising
could cause people to -- could cause non- smokers to smoke?
    A. I believe I saw many documents that talked about starters or first
usual brands or people who were under-age teens.
    Q. Did you see any document from R. J. -- strike that.
    Did you show to the jury any document from R. J. Reynolds that said that
R. J. Reynolds thought that advertising could cause a non-smoker to become a
smoker? You didn't, did you?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: No, you may answer that.
    A. I showed many articles that were targeting under-age teens or having
an intention of targeting under-age teens or they were working looking at
under-age teens in my testimony.
    Q. Did you show the jury any document from R. J. Reynolds that said that
R. J. Reynolds thought that advertising could cause a non-smoker to become a
smoker?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: You may answer.
    A. I showed several documents in which R. J. Reynolds was clearly
targeting under-age teens. The starting process takes about two years, two
to three years, so that if -- and most of that occurs during the under-age
teen process. So to go from a non- smoker, complete non-smoker to a full
smoker includes the time of under-age teens. So in a sense I believe the
advertising did -- was aimed at getting non-smokers to become regular
smokers.
    *6 Q. But again, did you show any document from Reynolds that said that
Reynolds thought that advertising could cause a non- smoker to become a
smoker?
    A. I believe in a sense I did.
    Q. And those are the documents that you -- you showed --
    A. Those were a sample of the hundreds of documents that I looked at.
    Q. Would you at least concede, professor, that there was no document
that you showed this jury in which any explicit statement, any specific
statement by anybody at R. J. Reynolds was ever made to the effect that
anyone at R. J. Reynolds thought that advertising could cause a non-smoker
to become a smoker?
    A. If you include the age of under-age teens, that period of time of
starting to smoke, then no, I won't say that.
    Q. With respect to the focus group information you saw for the Joe Camel
focus groups, you saw no focus group conducted with anyone under the age 18;
did you, professor?
    MS. WALBURN: Objection, beyond the scope of discovery.
    THE COURT: Well, it's been asked and answered several times, I think.
    MR. WEBER: Okay.
    Q. You mentioned a document on Monday that said that the drawback of
certain executions of Camel cartoons from France was that they might appeal
to a younger mindset; correct?
    A. Yes.
    Q. Remember that document?
    A. Yes, I do.
    Q. Do you know that those executions that raised the concern about
appealing to a younger mindset were executions in which the Camel had a
punk, spiky haircut?
    MS. WALBURN: Objection to the form of the question. Counsel is
testifying.
    THE COURT: Sustained.
    Q. Attached to that document was a series of advertising executions. Do
you remember that?
    A. I remember some very black executions in which you couldn't tell what
it was.
    Q. And did you learn from the focus group material you reviewed that the
executions that skewed younger were those with punk, spiky haircuts?
    A. No, I can't attribute it to -- to punk, spiky haircuts because I
couldn't see those pictures. They came to us almost completely black.
    Q. And did plaintiffs' counsel show you a document that made it clear
that the Joe Camel campaign, Joe Camels, were not to have punk, spiky
haircuts? Did they show you that document?
    A. I don't believe we talked about spiky haircuts.
    I do remember that in a focus group about the French Camel, the French
Camel which came from France in which the focus group said that -- or the
people who did the focus group said, well, it would be more appealing for a
younger age group, I remember that even Mr. Schindler, the head CEO of RJR,
said yes, that meant that that Camel would be more -- or was more -- would
be -- that what they meant by that was people under 18, that it was -- that
it was -- that one drawback to that cartoon was it would be appealing to
even younger people, and he agreed that that meant that it was under 18.
    MR. WEBER: Your Honor, I'd move to strike the witness's characterization
of another witness's testimony. I think it's inappropriate.
    *7 THE COURT: Okay. That last answer will be stricken.
BY MR. WEBER:
    Q. Now the document you were just referring to that talked about the
drawback --
    That it might appeal to younger mindset; correct?
    A. Yes.
    Q. -- you don't know one way or the other whether the actual executions
that created the problem were the ones with the punk haircuts; do you?
    A. No.
    But I'd like to go back to another document, and that is a 1974
document, and this was a document that was talking about the French Camel,
the original French Camel in Paris -- in France, and it was an RJR document
that said this French Camel is doing fantastic in Europe, it's about as
young as you can get, and it's appropriate for our young adult audience. We
should try it with our young adult audience. Now the significance of that is
1974 was the exact same year of the Hilton Head presentation where young
adults were defined specifically as 14 to 24 years old, so they're saying
this French Camel that I have seen, and I have seen the magazines from
France, and that French Camel was appropriate for the young adult audience,
which at that point in time was defined explicitly by RJR as 14 to 24, and
that Camel, that French Camel with modifications became Joe Camel.
    Q. Okay. Can you answer my question now, professor? You don't know one
way or the other whether the actual executions tested on the focus group
that did tend to appeal -- they, the 18- and-over focus groups said might
appeal to young people, you don't know whether those actual executions were
the punk haircuts or something else; do you?
    MS. WALBURN: Objection, Your Honor, asked and answered. And also I
object to this continuing line of questioning since counsel for RJR did not
produce a legible copy of the photographs.
    THE COURT: Do you have a legible copy so that we can see what we're
talking about?
    MR. WEBER: I've certainly got a copy of the exhibit, Your Honor. Let me
look for it.
    THE COURT: Do you have a legible copy?
    MR. WEBER: This is Plaintiffs' Exhibit, just for the record, 12811, Your
Honor, and I've got the same one they have. It's, at least I think, Your
Honor, I -- I think, just for the record, Bates 5745, it's at least clear
that one of the executions was a punk haircut.
    Could I approach?
    THE COURT: Show it to the witness.
    THE WITNESS: Well there -- I believe there are more executions.
    MR. WEBER: Right.
    MS. WALBURN: Counsel, can I take a look --
    MR. WEBER: 12811.
    MS. WALBURN: I've got the document, but it wasn't produced in a legible
fashion and I'd like to see it.
    MR. WEBER: Oh, I'm sorry, I think I've got the --
    This is a copy of your blown-back exhibit.
    MS. WALBURN: Your Honor, there's still problems with a number of the
photographs in this document not being legible.
    THE COURT: Well whose photograph is he about to show? Is that your
exhibit or their exhibit?
    MS. WALBURN: It's --
    MR. WEBER: Our production, their exhibit. And it was -- all I want to do
is -- is raise the issue of whether the witness can tell whether that's a
punk haircut.
    *8 THE COURT: Why don't you show it to the witness.
BY MR. WEBER:
    Q. Professor, I'm going to hand you what's marked as Plaintiffs' Exhibit
12811, which is evidence -- is in evidence, and hand you page five -- the
Bates number ending in 5745, and ask whether you can tell on that sheet
whether that execution had a punk haircut?
    A. You know, there are three French Camels here. They tested three
French Camels. Not all three, only one has a punk haircut. The other looked
very much, if I can interpret this, like the original French Camel like we
saw in the 75th birthday and the one that I just referred to that they
referred to as -- as just right for their 14- to 24-year-old market. So only
one of these --
    They showed all three executions in the focus group. Only one had a -- a
punk haircut that I can tell. The other -- the others don't have anything
spiky coming out of their heads that I can tell in this.
    Q. And you don't know from what you've seen whether the skewing younger
applied to the punk haircut; do you?
    A. The skewing younger applied to the focus group discussion about these
three executions. The three -- that was the summary of looking at the three
executions. That's what the people who did the focus group said about the
three executions, not about one with the little spiky haircut.
    Q. Would you agree that the people who were at the focus groups would
know which executions evoked that reaction better than you would?
    A. I would think the people who ran the focus groups who are summarizing
what these young people said would -- we should just take what they said
about all three executions.
    Q. My question was: Would you agree that the people who were at the
focus groups and involved in the focus groups would know better than you
about whether it was the punk haircut execution that skewed younger or not?
Would they know that better than you if they were there and involved in it?
    A. Counsel, I think it's the people who wrote the focus --
    When you do a focus group, the person -- people who do the focus groups
interpret what the group has to say. And so, you know, not the individuals
who are there at the focus group, it's the people who are running the focus
groups. And they wrote this report that said this would be -- these --
these, meaning the French Camel, these three would appeal to an even younger
age group.
    Q. So is it fair to say that you don't believe that the people who were
involved in that focus group would know more specifically about the
reactions of the focus group than you would? Is that fair to say?
    A. The people who wrote this report said that these Camels, these Camels
would appeal to even younger than 18 years old. That's what they said. The
people who wrote this focus group report said that they would -- that these
would appeal to an even younger group, and even Mr. Schindler said that that
would be under 18 years old.
    MR. WEBER: Your Honor, I'd move to strike the characterization at the
end again.
    *9 THE COURT: Well we'll strike "even Mr. Schindler" and whatever
follows.
BY MR. WEBER:
    Q. Now do you know that after that focus group, when they began
effectuating plans for the Joe Camel campaign, that they instructed not to
use Camels with a punk, new-wave, spiky-hair look? Did you see those
documents?
    A. I didn't see those documents, but it could very well be that the
spiky haircut was out by then.
    Q. Have you ever seen a Joe Camel -- a Joe Camel ad in which the Camel
had a punky haircut?
    A. No. Most of the Joe Camel ads have Joe Camel with his peer group.
    Q. Could you turn to tab 46, and that would be Exhibit AM001453. Now
does that appear to be an R. J. Reynolds document commenting on the upcoming
75th birthday plan for Joe Camel?
    A. Yes. But I haven't read it in its entirety. Could I take a few
minutes to look at it?
    Q. Hang on just a moment, professor.
    MR. WEBER: Your Honor, I'd move the admission of this document under
104(b) as well, it's not in evidence yet on conditional admissibility, that
we'll tie it up later on as one of the Joe Camel marketing documents.
    THE COURT: Are you going to let her look at it?
    MR. WEBER: Beg your pardon?
    THE COURT: Do you want her to look at it, counsel?
    MR. WEBER: Well I didn't want to do that unless the court was going to
-- going to let it in evidence. Otherwise, we --
    You see what I'm saying? I didn't want to waste any time.
    MS. WALBURN: No objection.
    THE COURT: All right. Go ahead, counsel.
    MR. WEBER: Okay.
    Your Honor, may I inquire, is that in evidence? And should I give you
the number again, or --
    THE COURT: No. The number I have is AM001453. It is in evidence at this
time, subject to a motion to strike if you fail to properly introduce it.
    MR. WEBER: Thank you, Your Honor.
    A. Yes, counsel.
    Q. Have you had a chance to look at it, professor?
    A. Yes. I haven't studied it, but I --
    Q. Had you seen this document before?
    A. I -- I don't remember. I went through all the documents you -- that
tobacco industry sent over, but I don't remember this document.
    Q. Do you know whether the plaintiffs' lawyers gave you this document as
part of your review in preparation for this case prior to the last week or
so? Had you ever seen it in that context?
    A. I don't -- I don't believe so.
    Q. Could you go to the first page where they talk about the 75th
birthday logo, and would you read the first bullet point for me. Or I guess
it's kind of a dash point.
    A. It says, "Continue development of the recommended pyramid logo by
incorporating brighter and more festive colors."
    Q. And the second?
    A. "Retain the slogan ''75 years and Still Smokin',' however, remove it
from inside the pyramid borders."
    Q. And the third?
    A. "Avoid any appearance of a punk, new wave look."
    Q. Would you turn to the next page, professor, and go down to "Magazine
Creative." You see that section?
    A. Yes.
    *10 Q. And could you go up -- the first of the bullet points, I guess
it's a dash point again, could you read what that says?
    A. Yes, it says, "Must appeal to the 18 to 34 year old mindset." Which I
must say disturbs me for two reasons. Number one is that that means it's
going to -- it may appeal to -- even in their written document, which one
would be skeptical about when you see that in the '80s, that it might appeal
to just an 18-year-old. 18-year-olds are still in high school, so if it
appeals to the 18- year-olds, it's very likely to appeal to the high school
students. The second thing that bothers me about this document is on the
next -- next page it says "The French Camel can be shown with a drink, that
is, a beer mug. However, drinking and driving should not be portrayed." So
shown with a drink to under 21-year-olds, explicitly it's 18 to 34, and the
drinking age is 21 and over, and so that does disturb me about this
document.
    Q. Now --
    So if it appeals to 18-year-olds, it's very likely to appeal to 17-year-
olds; isn't --
    A. Eighteen --
    Q. Isn't that what you just said?
    A. As I said, I think several times now, 18 -- when you turn 18 years
old, you're very likely to be in high school, so your friends are very
likely to be 17 years old, 16 years old, et cetera.
    Q. Didn't you just finish telling us before lunch how different 18-year-
olds were and why we shouldn't pay attention to that survey of high school
seniors?
    A. No, I was --
    MS. WALBURN: Object to the form of the question.
    MR. WEBER: I'll withdraw it, Your Honor.
    Q. Now you know from the Reynolds documents you looked at that the Camel
brand increased its share among 18- to 34-year-old smokers after the
introduction of the Joe Camel campaign; correct?
    A. In the information I saw right after the introduction of the Joe
Camel campaign, there was an increase in the 18- to 34 year-olds, but this
skewed young. That means that it was -- it was the 18- to 20-year-olds that
increased more than the 18- to -- or the 21- to 24-year-olds and et cetera.
So the younger you were, the more likely it was, at least in a few of the
documents I looked at, the more likely it was for you to smoke Camels. And
of course we saw in the government data that there was a huge increase in
under- age teens. So the younger you were, the more likely you were to
increase smoking Camels.
    Q. So you did see an increase in the 18 to 34 share in the documents you
saw?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: I think it's been asked and answered now.
    Q. And you also saw an increase -- strike that.
    And you also, from the documents you saw for Philip Morris, saw that
Philip Morris was losing some share in 18 to 34 to Camel; correct?
    A. I saw in the teen-age attitudes and practices survey that there was a
loss in share between 1989 and 1994, and I did see a document in which
Marlboro was losing share among what they called YA's, young adults, and
that very much looked like the 12- to 17- year-old data.
    *11 Q. You don't know what they meant by YA in that; do you, professor?
    A. I have about a 99 percent certainty. And if we looked at that chart,
we can all add up the numbers, and that YA, number one, doesn't fit into the
hundred percent of the whole population, and number two, the data match,
almost right on, to the teen-age attitudes and practices survey data.
    Q. What you say --
    Is this a fair statement, professor, that 99 percent, you're about as
certain of that as anything; aren't you? Ninety-nine percent is really
certain; correct?
    A. Well maybe 99 percent is an overstatement, but I'm really certain.
    Q. You're really certain. You'd be willing to let the credibility of
your entire testimony before this jury turn on whether or not you're right
about what YA means; is that fair?
    MS. WALBURN: Object to the form of the question, argumentative.
    THE COURT: It's argumentative.
    Q. Are you as certain of anything in this as you are of that 99 percent
on that?
    MS. WALBURN: Object to the form and asked and answered.
    THE COURT: It's argumentative, counsel.
    Q. Now there are a number of adult products that -- strike that -- of
products for adults that are advertised using cartoons or illustrations;
aren't there, professor?
    A. I don't think there are any adult products using cartoons for
illustration that kill 400,000 people a year.
    Q. Okay. My question was: Are there a number of adult products, products
advertised for adults, that use cartoons or illustrations? Can you answer
that?
    A. And my answer is I don't think there are any cartoons used for adult
products that kill 400,000 people a year.
    Q. Are there advertisements for adult products that use cartoons? Can
you answer that?
    MS. WALBURN: Objection, relevance, and asked and answered.
    THE COURT: No, you may answer.
    A. There --
    I don't know of any product for an adult using a cartoon character that
kills 400,000 people per year.
    Q. Would you concede that there are lots of adult products that are
advertised with cartoons?
    A. A lot of products use cartoons, and I think that the use of cartoons
is fine if it's not killing 400 -- if it's not killing people.
    Q. So you would agree, then, that cartoons are perfectly appropriate to
use for adult products. Advertisers do that; correct?
    A. It's --
    You know, I haven't studied other products. I have studied cigarette
advertising and its effects on youth smoking. The use of Joe Camel as a
cartoon, which RJR knew would be appealing to under- age youth and resulted
in more under-age youth smoking, I think was inappropriate. It was wrong to
use Joe Camel.
    Now other cartoon characters, in terms of their effects on health, I
haven't studied that.
    Q. Okay. I'm asking you about whether cartoons are used to advertise
products to adults. Put aside cigarettes for a minute. Are you aware of
whether cartoons are used to advertise products to adults? As -- as someone
who lives in this society, are you aware of that?
    *12 MS. WALBURN: Objection, asked and answered.
    THE COURT: I think she answered that.
    MR. WEBER: Okay.
    Q. Let me see if we go through a few. Do you remember Speedy Alka
Seltzer?
    MS. WALBURN: Objection, relevance.
    THE COURT: You may answer.
    A. No.
    Q. Okay. You don't remember the little Alka Seltzer character they used
to advertise that? That doesn't help you at all?
    A. No.
    Q. You don't remember him from the Flintstones?
    A. No.
    Q. How about Garfield the Cat, have you seen Garfield the Cat doing ads
for Embassy Suites? Are you familiar with that?
    A. I read Garfield in the morning in the Star Tribune, but I don't
remember Garfield the Cat on Embassy Suites.
    Q. And Embassy Suites, that's a hotel chain, business hotel chain;
correct?
    A. Yes, that I know, but I haven't seen Garfield.
    Q. How about Snoopy and the Peanuts characters, have you seen them do
ads for Metropolitan Life Insurance and investments? Have you ever seen any
of those?
    A. I may have seen that.
    Q. And that's an adult product, life insurance and investments; isn't
it?
    A. Yes, I would hope so.
    Q. How about --
    Have you ever seen the Pink Panther advertise for insulation in the
home?
    A. No, I haven't.
    Q. Are you familiar with the Pink Panther cartoon character?
    A. Vaguely. I wouldn't say I was very familiar with the Pink Panther.
    Q. How about the Michelin Man, he does tires, big cartoon man made out
of tires, have you ever seen him?
    A. I think I've seen him at the Michelin dealer, but I don't believe
I've seen him on television.
    Q. Have you seen the Flintstones advertising Chevy, Chevy trucks?
    A. No, I haven't.
    Q. Have you seen the Jetsons advertising cellular phones?
    A. No, I haven't.
    Q. Have you seen Bullwinkle advertising the Minnesota lottery?
    A. Only through this litigation.
    Q. Okay. Could you turn to tab 83, professor. I think that's BYG000365.
And do you see there, professor, a copy of an advertisement and odds sheet
for the Minnesota lottery?
    A. Yes, I see that.
    MR. WEBER: Your Honor, I'd move the admission of BYG000365 as an
admission of a party.
    MS. WALBURN: Object to the relevance and beyond the scope of this
witness's direct exam.
    THE COURT: Sustained.
BY MR. WEBER:
    Q. When Minnesota advertises the lottery -- strike that.
    Lottery is 18 and over in Minnesota; right? Eighteen plus to buy lottery
tickets?
    MS. WALBURN: Objection, relevance and beyond the scope.
    THE COURT: Sustained.
    Q. When Minnesota uses Bullwinkle the Moose in its advertisements for
the lottery, Minnesota isn't using Bullwinkle the Moose to advertise to
under-age kids; is it?
    MS. WALBURN: Objection, beyond the scope, and relevance.
    THE COURT: Sustained.
    Q. Would you turn to Exhibit 14784. And that was one of the Joe Camel
ads you spoke about on direct. Do you remember that, professor?
    A. Yes, I do.
    Q. The one about the Ticketmaster coupon offer. Do you remember that?
    *13 A. Yes.
    Q. Now that advertisement carries in at least two places the Surgeon
General's warning; does it not?
    A. Yes, it does.
    Q. And in at least two places it says that to take advantage of the
offer, you have to be a smoker and you have to be 21 or over; correct?
    A. Yes, it does.
    Q. And the R. J. Reynolds policy with respect to couponing and coupon
redemption is 21 and over; isn't it?
    A. Well that's their policy, but that isn't how it's enforced. As we
saw, about 27 percent, 27 percent of seventh graders in Schooler, et al's
article had some kind of promotional item, and I believe it was 17 percent
had -- had received direct mail from the tobacco companies.
    Their policy is 21 and over, but they don't enforce -- there's -- they
don't enforce their policy.
    Q. Isn't it true that the only way somebody under 21 can get a mailing
through a coupon redemption is to lie when they sign the coupon?
    A. I believe that they can get it if they don't put their age in at all.
    Q. You don't have any evidence of that; do you, professor?
    A. One of my colleague's children did that on several occasions and did
receive -- and the child did receive promotional items.
    Q. And they came into the house labeled as such; didn't they? Came in
through the mail labeled as such?
    A. Labeled as such what?
    Q. That they were tobacco promotional items. I mean, they didn't come in
a plain brown wrapper; did they?
    A. I can't attest to that.
    Q. And do you also know that R. J. Reynolds employs other companies to
check the names that come in on the coupons?
    MS. WALBURN: Objection to the form. Counsel is testifying.
    THE COURT: Sustained.
    Q. Now turn to Exhibit 4991 for me, would you, professor?
    A. Yes.
    Q. You have to indulge me for just a moment, we're having a hard time
finding ours.
    Excuse me, Your Honor. I'm sorry for -- sorry for the delay, Your Honor.
And ladies and gentlemen, I'm sorry about the delay.
    Now 4991 is one of the studies that you cited in your direct examination
that you said led to you taking a firmer position than you had taken in
writing in the 1994 Surgeon General's report; is that fair?
    A. It's one of the studies that's been published since the Surgeon
General's report was -- was released. In fact the -- the fact that children
smoke the most advertised brand isn't really that new.
    Q. And --
    A. I believe we reported that in the Surgeon General's report.
    Q. I'm sorry, I didn't mean to interrupt. Did you get a chance to
complete?
    A. Yes, I concluded.
    Q. Okay. Now there's nothing whatsoever in this report, no language that
says that advertising caused anyone to smoke; is there?
    A. What this document says is that there's an association between the
most advertised brands -- that is, where the tobacco companies spend their
money, the most advertised brands means that's where they spend their money
-- and the cigarettes that children smoke. Eighty-six percent of children
smoke three brands.
    *14 They also did a correlation showing that there was some increase in
advertising associated with the increase in Camel and a decrease in
advertising dollars that was associated with a decrease in Marlboro. But the
-- the main point of this particular article was to show brand preference
among young people and that -- that they smoke the most advertised brands.
    Q. Can I --
    Let me ask the question again. Now there's nothing whatsoever in this
report, no language that says that advertising caused anyone to smoke; is
there?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: I think it's been asked and answered.
    Q. Does the MM --
    This is put out by the CDC; isn't it?
    A. Yes, it is.
    Q. They don't --
    This report doesn't conclude that advertising is a causal factor; does
it?
    A. They don't conclude this in this report, and my opinion came not from
one individual report, as we go through one individual report, but the sum
total of all the work that I'd done with the Surgeon General's report and
with adolescents, some of the -- the new research I shared with you, and the
tobacco industry documents. So my conclusion, my opinions come from that
whole source of information.
    Q. And indeed, what this report says on page 581, this is the MMWR
report, what it says is advertising may influence brand selection; isn't
that correct?
    A. It says brand --
    Q. Brand choice, I'm sorry.
    A. Brand choice --
    Q. I'm sorry.
    A. -- is an important component of smoking behavior.
    Q. Now --
    And you know that brand choice is a different issue than smoking
initiation; don't you, professor?
    A. They occur --
    The first brand choice occurs almost exactly at the same time as smoking
initiation, according to the industry documents.
    Q. Well you can't smoke if you don't smoke a brand; right? Isn't that
kind of --
    A. But the first --
    People tend only to smoke three brands on average in their whole lives,
so the first brand is a very important choice.
    Q. Are you able to answer the question of whether brand choice is a
different issue than smoking initiation? Do you know that?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: I think she answered the question.
    Q. Aren't there studies, professor, about smoking initiation and studies
about brand choice?
    A. Yes. And -- and about the relationship between the two.
    Q. And indeed, in your area of study --
    Your area of study recognizes these as two different issues; does it
not?
    A. No, I wouldn't say that. In fact, in the RJR documents you refer to
people as first usual brand young adult smokers, the first brand people tend
to smoke, and those are under-age people.
    Q. Well --
    A. And that's part of the smoking initiation process. During that two-
to three-year process they pick their first brand, so smoking initiation
includes picking a first brand.
    Q. Well you can't smoke if you don't have a brand; right?
    A. Picking a first brand you're going to stick with and -- and you're
going to stick with it for a long time.
    *15 Q. But you're not --
    A. As --
    Q. I'm sorry.
    A. As the documents say, the brands that an under-age person selects is
more important in terms of gains to the tobacco industry than -- than
switching that occurs after age 18.
    Q. Well you told us earlier you're not an expert about switching; right?
Did you not?
    A. Yes, I did say that. But I --
    Q. And didn't --
    A. But I'm quoting from documents that I read.
    Q. Didn't we also see a document today that said, I think, 42 percent of
Marlboro smokers switch between 18 and 24?
    A. And at the end of that paragraph I pointed out, and so did the author
of that, that the brand loyalty far outweighed any tendency to switch with
age. Brand loyalty of the under-age smoker, what they chose as their first
brand, was more important to RJR than any tendency to switch with age.
    Q. The data being analyzed there dealt with people 18 and older; didn't
it, professor?
    A. In the --
    I believe that she was in that document referring just to 18-year-olds,
and at one point it said that they got that 18-year- old data by trending
16- and 17-year-olds and 18- and 20-year-olds from the NFO data. So she --
she was looking, it looked like, from data for 18-year-olds, but that that
came from also under-age teens as well.
    Q. And 18-year-olds are allowed to buy cigarettes; right?
    A. Eighteen-year-olds are allowed to buy cigarettes. But as we know, 18-
year-olds reflect what under-age teens are smoking.
    Q. Now you said that this study also showed that the most advertised
brands are the teens' choices; is that what you said?
    A. I believe that's what I said.
    Q. Now --
    And this shows that Newport, for example, decreased advertising yet
increased market share; isn't that true?
    A. You'll have to point that out to me.
    Q. On page 580, in the middle -- middle of the page, professor.
    A. Yes, that's right. In the commentary they were pointing out the
difference between Marlboro and Camel, and even pointed out that that wasn't
consistent for Newport.
    Q. Do you know how many years in the past 10 years it would be the case
that the most advertised brands are the brands used most by under-age
smokers? Have you done that study?
    A. No, I haven't done that study. I know that Ellen Gritz wrote about
that in 1984, so my -- my belief is that it's been for quite a while.
    Q. But do you know in the past 10 years for how many years it would have
been the case that the most advertised brands were the most selected brands
by under-age smokers?
    A. I don't know for certain. I know that Marlboro has been the number
one brand for several decades, and it's also the number one advertised
brand.
    Q. So you don't know whether this -- results of this study which said
the top three choices of adolescents are the most advertised brands, you
don't know whether that's consistent data or inconsistent data over the last
10 years; do you?
    A. I believe it's consistent. We reported that in the Surgeon General's
report. I remember referencing a Gritz article from 1984. So I believe it's
-- it's -- it's pretty consistent.
    *16 Q. What does an article from 1984 tell you about the last 10 years?
    A. Well the -- I believe the -- and if I could look at the Surgeon
General's report, that would be helpful.
    I'm sorry, I can't find it right at this moment.
    Q. But a 1984 article wouldn't tell you anything about what happened in
the last 10 years; would it, professor?
    A. Well we know back to 1989, and so '84 is only a five-year dropback --
and I'm not placing right now exactly where I wrote -- where I remember
reading that brand preference is associated consistently with amount of
advertising dollars spent.
    Q. By the way, do you have the 1981 Surgeon General's report up there,
Exhibit 3838?
    A. Yes, I do.
    Q. I want to ask you one question on that. So you don't need to move
everything else, I just want to ask you one question.
    A. Yes.
    Q. And at page 23 -- do you have that?
    A. Yes, I do.
    Q. And what that says in finding ten is that adults started smoking
regularly at the average age of 18; correct?
    A. I believe what they mean by that is smoking like a pack a day. And
that's fairly consistent with the data I prepared which said that
adolescents start their first -- or have their first cigarette, average age,
about 14 and a half, and two to three years to daily smoking, so that would
be consistent. However, it may also reflect that adolescents are starting to
smoke at -- or more people are smoking at a younger age.
    Q. And regular smoking in these surveys is normally defined as smoking
in 20 or more of the last 30 days; isn't it, professor?
    A. For this particular document I'd need to read it to make sure of what
they meant. That --
    Q. Can --
    A. That seems very late, old for 30-day prevalence.
    Q. And isn't the age of being a daily smoker as of the time of your --
the average age -- I'm sorry, let me start all over.
    Isn't the average age for those who become daily smokers as of the time
of your Surgeon General's report, almost 18, hasn't changed much from 1981?
    A. I think it was under that, about 17 and something.
    Q. 17.7.
    A. Seventeen point -- 17 --
    Thank you, 17.7. And if you remember, that if you're smoking daily, four
out of five are still smoking five or six years later, and if you started
average age 14, two -- about two out of three were smoking daily three years
later.
    Q. So from '81 to '94, the average age of smoking daily remained roughly
the same; is that fair?
    A. You know --
    I can't attest to that because --
    Q. Fair enough.
    A. -- I -- I really cannot say that at this point, because different
researchers define it regularly --
    You know, for the Surgeon General's report we called current smoking --
we were very clear. And if you looked at it, each survey had its own
definition. So I don't think we can make that assertion.
    Q. Could you turn to Exhibit 26062. I think you'll see that's another
one of the studies, another of the studies you mentioned in your direct
exam.
    *17 A. Yes.
    Q. Now this is an article about smoking by adolescent girls by John
Pierce, Ph.D.?
    A. Yes.
    Q. You know that John Pierce has stated on a number of occasions that he
believes that tobacco advertising should be banned; don't you?
    MS. WALBURN: Objection to the form of the question, and relevance.
    THE COURT: Objection sustained.
    Q. Do you know Professor Pierce's policy statement on whether or not
tobacco advertising should or should not be allowed?
    MS. WALBURN: Objection, relevance.
    THE COURT: Sustained.
    Q. Now if you could turn, professor, to page 610 where he begins
discussing or commenting on his findings. Do you see that?
    A. Yes.
    Q. And right under comment, the second sentence, it says, "In 1967, the
initiation rate increased rapidly in girls younger than 17 and peaked around
' 73;" is that right?
    A. That's what he says.
    Q. Now from '67 to '73 is about six years; right?
    A. Yes, it is.
    Q. And the initiation rate increased over that time for adolescent
girls; right?
    A. Yes, it did, particularly for those 14 to 17.
    Q. And if you go over to the next column, you will see that he
correlates this to advertising for a brand -- women's brands of cigarettes
up at the top?
    A. Yes.
    Q. And he says the advertising for women's brands, the advertising for
women's brands increased from '67 through '79; correct?
    A. He said the advertising budgets for these brands started in 1967 and
increased through 1979.
    Q. So the ad dollars increased from '67 through '79 for the women's
brands; correct?
    A. Yes, that's what he said.
    Q. Now the fact of the matter is the initiation rates didn't continue
rising; did they? They peaked in 1973, as you see at the bottom of the
column that we just read. Do you see that?
    A. Right. He says that these -- "Sales of these brands reached a peak
that coincided with the observed peak in smoking initiation," because from
'67 to ' 70 the fairness doctrine was applied to cigarette advertising,
mandating community-service anti- smoking messages. "Our data suggest that
these health- oriented advertisements may have had some impact on older use
but failed to influence adolescent girls during that time."
    Q. Did the initiation rate peak in 1973 for adolescent girls and then
decline? If you'd look at the language I just read to you, or if you'd look
at the chart at the top right of page 610.
    A. Right. What's on --
    Q. I -- let -- I'm sorry, --
    A. I'm sorry.
    Q. -- professor, let me finish the question. Okay?
    My question is: Did Dr. Pierce conclude that the initiation rate in
girls younger than 17 peaked in 1973 and then decreased thereafter?
    A. Yes, he did. He made the assertion that because of the fairness
doctrine, those in the younger age group, in young adolescence, were less
likely to start, so by the time they were 14 and 17, they -- that
counteracted the advertising. So again we're sort of seeing a -- a battle,
as such, between pro-smoking and anti-smoking.
    *18 Q. So at least as of 1973, the initiation rates peaked and then came
down even though the advertising expenditure increased throughout; right?
    A. Yes. It reached the 14- to 17-year-olds during that period. It didn't
reach as much to the 10- to 13-year-olds, so that when they became 14- to
17- year-olds, then that began to decline. And once again, during this time
when there were a lot of women's brands, there wasn't any increase in the
18- to 20- year-olds.
    Q. Now is it true that with respect to Dr. Pierce's correlation that he
makes between advertising for women's brands and initiation rates, that this
-- that he made no test whatsoever of statistical significance; that is to
say, he did not submit the validity of his findings to a statistical
significance test?
    A. In this article he didn't do statistical significances. But there's
another article by Dr. Pierce that spans males and females throughout the
entire century, and for each age group showing exactly the same relationship
and showing statistical significant differences. So this particular article
did not have statistics related to it, but a -- another article which had
exactly the same information, or at least part of it had the same
information, was applied to -- to statistical analyses and came up with
exactly the same statistical significant conclusions.
    Q. Let me ask you about the study that you chose to discuss in front of
the jury as one of the five though. Focusing on the study that you chose to
discuss in front of the jury as one of the five you mentioned, there is no
test in here whatsoever of statistical significance for its conclusions; is
there?
    MS. WALBURN: Objection, asked and answered and misstates the testimony.
    THE COURT: It's been asked and answered.
    Q. Now in this period -- well strike that.
    You mentioned a number of times today, professor, that there are no
one-to-one direct relationships and we're dealing with complex social
phenomena in this whole issue of why people smoke; correct? You talked about
cultural differences, economic differences; right?
    A. What I said is that there's -- there's more factors than just
cigarette advertising and promotion and its effect on youth smoking
behavior, but cigarette advertising and promotion is a significant
contributor to adolescent smoking behavior, but there are other things going
on. So in a way if we're thinking of that rainbow chart, there are positives
and negatives in terms of pro- smoking and anti-smoking messages that the
adolescent receives. The pro- smoking messages overwhelmingly come from
tobacco industry advertising and promotion, overwhelmingly, with no negative
consequences displayed.
    Q. No negative consequences displayed did you say?
    A. I'm --
    You're reminding me of the health warning that is very small but is what
the FTC recommended. I --
    Q. And that's on every advertisement; isn't It, and on every pack?
    MS. WALBURN: Objection, asked and answered yesterday, I believe.
    *19 MR. WEBER: I'll withdraw it.
    Q. Now with respect to other things that were going on, let's focus on
this period from '67 to '73 when the adolescent women initiation rates were
increasing, professor. Okay? Now there were a number of social issues for
young women in the period '67 to '73; were there not?
    A. I really can't answer that question.
    Q. Was the period '67 to '73 an especially challenging time for young
women or girls becoming young women, about their roles in society, changing
roles in society? You have no -- no knowledge of that?
    A. For 14- to 17-year-olds at that age -- at that point in time, I
haven't studied that. I have studied the relationship between cigarette
brands and the increase in advertising and a rather phenomenal increase in
under-age use, and I think what's notable is that there was no increase
among the young -- even if there were things -- even if there were things
going on having to do with women's liberation and so forth, you'd expect
that to show up in the 18- to 20- year-olds who were of college age, not so
much in the 10- to 17-year-olds.
    Q. Well haven't you told us for a couple days now that the 10- to
17-year- olds are more vulnerable to things going on around them? Isn't what
you said up till now perfectly consistent with the fact that these social
pressures and changing roles would affect the 10- to 17-year-olds more than
anybody else?
    A. That depends on what's being presented. If it meets their
developmental tasks, perhaps.
    Q. You didn't study that with respect to the period of '67 to '73; did
you, professor?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: It's been asked and answered.
    Q. You questioned another one of Dr. Pierce's studies about whether --
for the very reason that it may be ignoring some of these social
developments and social changes; haven't you?
    A. Can you be more clear?
    Q. Sure.
    Could you turn to Exhibit 2170. I don't think it's in that binder, is
it? It's velo-bound, I believe, professor.
    MR. WEBER: May I approach, Your Honor? I know it's up here.
    I'm sorry. Just one moment.
    THE COURT: Why don't we take a short recess. That will give you time to
find it.
    MR. WEBER: Sorry, 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. Do you remember, Professor Perry, stating that the Marlboro campaign
started and went national -- strike that -- went national in 1962, right
around there?
    A. That's what I believed it did, yes.
    Q. And I think you said that was a powerful -- I don't mean to quote you
exactly, but I think you said it was a powerful and a potent campaign
directed at males; correct, the national campaign?
    MS. WALBURN: Objection, misstates the testimony.
    THE COURT: You may answer that.
    *20 A. I think that it --
    Well I read a document in which it -- it showed that the Marlboro Man
was one that -- that was received by teen-agers coming of age, baby-boom
teen- agers, they resonated with the Marlboro Man. The document said that
the Marlboro campaign floundered for eight years, then reached a responsive
chord with these post-war baby boomers coming of age, and then that built
the -- the Marlboro -- their -- the share of market among under-age for
Marlboro.
    Q. You do know that for a period of time after 1962, after the Marlboro
campaign had gone national and after it had been on TV and advertised, that
the male initiation rates for adolescents decreased; don't you?
    MS. WALBURN: Objection to form. Counsel is testifying.
    THE COURT: You may answer that.
    A. I believe I showed that the 17-year-old rates did go down during the
sixties.
    Q. Let me --
    Just to make sure, this is Plaintiffs' Demonstrative Exhibit 30243, and
professor, 1962 would be right about here; correct?
    A. I think it's -- I --
    It's whatever the mid age is. I think you're pointing to '59, so --
    Q. It wouldn't be '64.
    A. Well I did it in five-year intervals as the National Health Interview
Study does.
    Q. Okay. So it would be right about in here then.
    A. Yes. Maybe that 34.9 percent.
    Q. Right in that area.
    A. Right.
    Q. And then after the Marlboro campaign went national, for a period of
years thereafter, male smoking rates among 17-year-old high school seniors,
according to your own chart, went down; correct?
    A. The male smoking rate went down and leveled during the '80s, but this
only reflects 17-year-olds and there may be other data that has a different,
you know, way of looking at the data. I -- I just chose 17-year-olds to look
at the National Health Interview Survey.
Q. Could you turn to Exhibit 26063, the Schooler article, please. This is
another one of the articles that -- that you discussed with the jury on
Monday?
    A. Yes, it is.
    Q. And is it true that this article expressly states that it's unable to
draw causal inferences regarding the effects of cigarette advertising and
promotion?
    A. This study says that it adds to the body of literature that shows an
association between advertising and promotion and -- and young people's
under- age smoking. So it adds to that. It says, "Longitudinal studies of
advertising pattern in young people's tobacco use demonstrate a positive
association between advertising and teen-age smoking," and that this added
to that literature.
    Q. But association isn't cause; is it, professor?
    A. In epidemiology we have criteria for determining causation, and that
is to look at a body of information and to look at the associations in that
body of literature and ask some questions about those associations, and from
that decide on causation.
    Q. Now if you'd turn to page 1220, in the far right-hand column -- there
we go, thank you -- do the authors of the Schooler article state that they
are unable to draw causal inferences regarding the effects of cigarette
advertising and promotion? They say it may suggest it, but they do not draw
a causal inference?
    *21 A. They say, "We feel, therefore, that these results support
previous research suggesting a causal connection between cigarette marketing
and consumption."
    When you decide on causality in epidemiology, you look at associations.
In this study they saw a very strong association between cigarette
advertising and cigarette promotions and teen-age smoking. One study on its
own, there are some criteria for saying causality, but in epidemiology we
look at the body of information, the body of information. And the Schooler
article, which shows a very significant association, as I mentioned, owning
a promotional item doubled, doubles the risk of being a smoker, those
associations are used in epidemiology to build a causal argument after
you've reviewed a large body of information.
    Q. Did they say that -- the authors of this study -- say they were
unable to draw causal inferences?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: It's been asked and answered.
    Q. Now if you turn to page 1219 where they talk about distribution and
promotions, they didn't determine whether anyone who had received
promotional material under age had misrepresented their age or smoking
status; correct?
    A. I don't believe that they asked that question about
misrepresentations. What they found was that 17 percent of the seventh
graders had received direct mail addressed to them, to themselves.
    Q. And isn't it true that by signing one of these forms, even if you
leave the age part blank, underneath the signature it says "I hereby certify
I'm a smoker and I'm at least 21?"
    MS. WALBURN: Objection, asked and answered.
    THE COURT: You may answer that.
    A. I believe that that's true, but if you're a young -- you're an
under-age teen, you see a really cool thing in one of those promotional
catalogs or you want something, you send in a coupon. As I discussed,
adolescents aren't making informed choices. They're going to see something,
think it's attractive, and send off for it. And the tobacco industry doesn't
have any check on that.
    Q. No check whatsoever?
    A. No, they --
    There's not enough checks on it so that 17 percent received the -- 17
percent received the information. There are checks if you're called, I
guess, by a parent or something.
    Q. Did they determine here whether the parents or the older siblings in
the household had approved and assisted the mailing of this? Did they check
that in the study?
    MS. WALBURN: Objection, relevance.
    THE COURT: No, you may answer.
    A. I don't believe so.
    Q. They were also asked about exposure to promotional materials in here;
correct?
    A. Yes, they were.
    Q. Did they ask whether exposure came from within the family, whether a
parent or an older brother or sister might have had promotional items?
    A. I don't believe they asked that. They asked whether they got the
items from the mail, sent in coupons, with a cigarette purchase, at an
event.
    Q. Now they also concluded in this study that people who experimented --
adolescents who experimented with cigarettes were much more likely to have
relatives and friends who smoked than were others; correct?
    *22 MS. WALBURN: Could we have a page cite, please?
    MR. WEBER: I'm sorry, Ms. Walburn, that's at 1219 of the article.
    Q. At the top left-hand column, professor.
    A. Yes. In this study what they showed was that receiving mail from a
cigarette company or owning a promotional item or seeing an ad in a store or
seeing an ad in a magazine significantly increased the likelihood that they
were -- that they were experimenting with cigarettes. They also showed that
parental smoking and sibling smoking was significant, but it wasn't as
powerful. That's why their odds, what they call odds ratios, that family
smoking wasn't as powerful as receiving mail from the cigarette company or
owning a promotional item, that wasn't as powerful. Peer smoking,
particularly a friend smoking, was powerful.
    Q. Now my question was: Did they find that experimenters were much more
likely to have relatives and friends who smoke than other seventh graders?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: I think it's been answered.
    Q. Didn't they also find in this study, professor, that the peer smoking
variables were the most important predictors of experimentation?
    A. No, they didn't. They found that friends' smoking was -- had the
highest odds ratio, which was not the same as what we found in another
article, but that the next highest was receiving mail from the cigarette
companies. So those two were the highest predictors of who were
experimenters and who weren't.
    Q. Could you turn to page 1220, second full paragraph, about eight, nine
lines down, and see whether this refreshes your recollection as to whether
or not the peer smoking variables were the most important predictors of
experimentation in this study.
    A. I believe, Mr. Weber, that that's just what I said. I was referring
to table three and I said that friends' smoking, which is what they're
referring to in terms of peer -- I was just being very clear that it was
friends' smoking that they were talking about -- had the highest odds ratio,
followed by receicing mail from the cigarette company and then owning
promotional items.
    Q. Perhaps we misunderstood each other, because I had asked didn't they
find that the peer smoking variables were the most important predictors of
experimentation, and then you answered no, they didn't, and then you went
on.
    A. Oh.
    Q. But I think we're clear now.
    A. Okay.
    MS. WALBURN: I'm going to object to that commentary by counsel since he
abbreviated the witness's answer in his recitation of it.
    THE COURT: We'll move on.
BY MR. WEBER:
    Q. Now could you turn to Plaintiffs' Exhibit 26059. That's the Pierce
study.
    A. Yes.
    Q. Now this is another one of the studies you discussed on your direct;
correct?
    A. Yes, it is. It's the study that came out just about three weeks ago.
    Q. Now Professor Pierce collected data in 1993 in this study; correct?
    A. Yes, he did.
    Q. And then he followed the people forward and then collected more data
in 1996; correct?
    *23 A. From the same people.
    Q. The same people.
    A. Yes.
    Q. Only one difference was he lost 40 percent of them along the way;
isn't that true?
    A. I don't believe he lost them. I believe he looked at -- only at the
ones that were non-susceptible never smokers. Unless his attrition was --
was 40 percent and I -- you know, and I'm not remembering that.
    Q. Could you turn to page 512, left-hand column, right above "Measures
of Smoking Initiation," professor, where he concluded after his tracing
methods and those he did follow up and those who refused to participate, et
cetera?
    A. Yes. For this study he had -- he was only looking at non- susceptible
never smokers, so his response rate was 66 percent, if you look at the last
line of that paragraph, because that's the sample that he's using for this
analysis. And over three years -- this is a sample of students, of young
people throughout California doing a telephone survey -- 66 percent is
considered very good.
    Q. And what he did was he took two snapshots; that is to say, he
collected data in 1993 and then collected data in 1996; correct?
    A. I wouldn't call those two snapshots. He collected two waves of data
from the same adolescents that were representative of adolescents under-age,
12 to 17, in California. And so he collected data from them in 1993 and then
followed longitudinally those same adolescents in 1996.
    Q. But he didn't follow them between '93 and '96, though, is my point.
There was no collection of data in '94 or '95; correct?
    A. Well that's --
    In a longitudinal study, you know, you're lucky if you can get funding
to -- to do that. I mean that's a --
    He followed the students. To be able to get 66 percent of them after
three years is really rather phenomenal. That's a very representative
sample. That's very good in our field.
    Q. And there was no data collected in '94 or '95; correct?
    A. He collected data in 1993, and then three years later from the same
group of adolescents, having a 66 percent response rate, which is very good.
    Q. Now in 1993, the persons in the survey were 12- to 17- year-olds;
correct?
    A. Yes, they were.
    Q. And in 1996, I guess they would have been 15 to 20?
    A. That's right.
    Q. Okay. Now --
    And he rated them on scales of susceptibility towards smoking; didn't
he?
    A. Yes. He has a susceptibility-to-smoking scale that he's previously
shown in other research is highly predictive of the transition to smoking.
    Q. Now with respect to the people he looked at, if we could take the top
row there --
    He, by the way, used a 95 percent confidence interval here; did he not?
    A. Yes, he did.
    Q. And that's rather standard for quality statistical work; isn't it?
    A. Often it's a -- often it's 90 percent, but five percent on each side
in this case. It was conservative.
    Q. I'm sorry. Plus or minus five percent; correct?
    A. Yes.
    Q. You'd never publish work with plus or minus a hundred percent or 170
percent or 300 percent; would you?
    *24 A. Well that's impossible.
    Q. It's impossible.
    Now to be rated as susceptible on that scale, you could be rated as
susceptible on that scale and never have smoked a cigarette; correct?
    A. He called people susceptible if they would -- if they said that they
would accept a cigarette or if they intended to smoke. And in his previous
work, the reason that this article was accepted in JAMA, one of the highest
-- the best -- the best journals in the medical field, and called them
susceptible, was that his measure of suceptibility was a very strong
predictor of future smoking.
    Q. Now --
    So the answer is that to be in the susceptible column, those people
never smoked a cigarette according to this data; correct?
    A. They --
    MS. WALBURN: Objection, asked and answered.
    THE COURT: You may answer.
    A. They had to say that they would --
    "Do you think that you will try a cigarette soon? If one of your best
friends were to offer you a cigarette, would you smoke it? At any time
during the next year do you think you will smoke a cigarette?" And so if
they responded affirmatively to those, they were considered susceptible.
    But the important thing is that in his previous research, being
considered susceptible meant that that person was -- was over twice as
likely to go on to becoming a smoker in the future.
    Q. Isn't it true that even if you answered "probably not" to the
question of at any time in the next year do you think you'll smoke a
cigarette, if the individual answered "probably not," he was rated as
susceptible by Dr. Pierce?
    A. Because in his prior research he found that that -- I mean he's done
a lot of research on the susceptibility scale. I don't know if this
courtroom is the place for us to be debating his statistics. He did a lot of
research, and -- and in order to not be susceptible, yes. That's why these
baselines, never smoker, non- susceptibles, are so -- that's such an
important group. They didn't intend to smoke at all, and they didn't say
they -- and they wouldn't accept a cigarette from their best friend.
    Those that were susceptible, even if they said "probably not," they were
significantly more likely to go on to become smokers.
    Q. So the answer to my question is yes, that if you said "probably not"
to a question about whether you'd have one cigarette in the next year, you
were rated as being susceptible; isn't that right? If you look -- I'm sorry.
    MS. WALBURN: Excuse me.
    MR. WEBER: You're --
    I was just going to refer to the page, so we might as well - -
    MS. WALBURN: Objection, asked and answered.
    THE COURT: She answered it.
    Q. Now the established smokers on here as of 1996 on this chart, and
that includes 18- -- some 18-, 19- and 20-year-olds, the total of actual
established smokers was 3.6 percent; correct?
    A. Let me just double check on that.
    Q. It's on that top line, overall rate.
    A. Yes, I know, but I'm -- I'm checking the definition.
    *25 The established smokers were the ones that said that -- Have you
smoked at least a hundred cigarettes in your life? Now the reason it's 3.6
percent is because in 1993 he surveyed all of the students in a sample, of
all the students in California, these represented the non-susceptible never
smokers, and so he was looking at them over time to see what predicted their
onset of smoking. And yes, the established smokers had smoked over a hundred
cigarettes in their lifetime.
    Q. So the 3.6 rate is for anybody who in his lifetime, which includes
18-, 19-, 20-year-olds, had five or more packs; right?
    A. It means they -- yes. Have you smoked at least a hundred cigarettes
in your life? And these are for three years later.
    Q. Now Professor Pierce also looked at the data another way; did he not?
The same data, made another chart, another page?
    A. Yes. This looks at the odds ratio.
    Q. And I want to go down and look at -- if you can get that a little
closer -- right now talk about those he was examining who had been exposed
to tobacco promotions.
    A. Uh-huh.
    Q. Now the ones he classified as minimal were those who would not
identify a brand or name a -- not willing to name a favorite ad or identify
a brand; correct?
    A. That's right.
    Q. And low was you could name a brand, but not be willing to name a
favorite ad; right?
    A. Not willing to use a --
    Q. I'm sorry.
    A. -- promotional item.
    Q. Not willing to use a promotional item. Thank you for that.
    Now moderate was where you couldn't -- where you had a favorite ad, and
you still weren't willing to use a promotional item; correct?
    A. That's right.
    Q. And to get in the high category, the high exposure, you either had to
have a promotional item or be willing to use it.
    A. Yes. You only had to be willing to use a promotional item. You didn't
even have to own it, you didn't even have to have it in your house, you just
had to be willing to use a promotional item, a hat, a jacket, you'd be
willing to use it to get into the high exposure group.
    Q. And so that means you --
    You showed the jury, I guess on Monday, some pictures of -- from a store
where there was an ice scraper promotional item; right? Remember that?
    A. Yes, I remember that. But that is not usually what adolescents are
interested in. They're not too interested in ice scrapers, but they're --
    Q. So --
    A. They'd be willing to use a cap that says Camel, they'd be willing to
use a jacket, a Marlboro jacket, they'd be willing to have a CD player,
those kinds of things that are in the promotional catalogs.
    Q. Or are willing to use the ice scraper. That would have qualified here
as well; right?
    A. I imagine it -- it would be. But I don't think that's what an
adolescent would think about.
    Q. Now with respect to the minimal exposure group as classified by Dr.
Pierce, he said 37.7 of them had progressed towards smoking; correct?
    A. Yes. And -- and please remember that these are unadjusted
percentages, unadjusted, so they didn't adjust in this column for age, sex,
race, ethnicity, school performance. So these are unadjusted progressions
towards smoking.
    *26 Q. And what he said about that group was -- and I'm on page 515 now,
professor -- "The finding of one-third of the non- susceptible never smokers
with minimal receptivity at baseline in 1993 did progress suggests
influences other than tobacco advertising and promotions are likely acting
to cause smoking as well." Correct?
    A. He says that from this study it is clear that the effect of
advertising and promotional activities precedes the development of
susceptibility to smoking. The effect is strong and specific, with at least
34 percent of the experimentation, not just the -- the susceptibility, but
actual experimentation with cigarettes is attributed to these activities.
    Q. Did --
    Did I read the statement correctly in the article?
    A. You read that statement correctly, but I wanted to put it into
context.
    Q. Now with respect to the low exposure classification, that data was
not statistically significant; was it, professor? If you look at his
adjusted odds ratio.
    A. That's right, it wasn't statistically significant. Neither was
exposure to peer smoking and neither was exposure to family smoking.
    Q. And indeed, that's one of the oddities of this study, isn't it, that
his study found, unlike consistent findings in many studies, that peer
smoking wasn't related to whether someone took up smoking?
    A. No, this isn't really an oddity. We saw the same thing in the Evans
study which was -- which looked at that whole group in 1993, and what he's
done is he's put all these variables together, put them into a regression
analysis -- which is a fancy statistical method -- and what came out was
that cigarette advertising and promotional activities were more important
than peer or family smoking.
    Q. Now the next group --
    A. And he found that same thing in 1993.
    Q. The next group, moderate, is just barely statistically significant;
correct?
    A. No.
    Q. That goes down to 1.04?
    A. No. It almost doubles the risk. It -- 1.82 means it almost doubles
your risk. If you have a favorite advertisement, it almost doubles your risk
of beginning -- of progressing to smoking. That's what that odds ratio
means. And the odds ratios were adjusted in the regression analyses, as they
should be.
    Q. My question was with respect to statistical significance. Did you
understand that?
    A. Yes. It's statistically significant.
    Q. Right. And the lower bound is 1.04; correct?
    A. Yes, quite above -- it's above 1.0, which --
    Q. It's above one -- it's four one-hundredths above 1.0; right?
    A. So it's like 96 percent or 97 percent certainty. That's how the
statistics work. That's why we have 95 percent --
    These are 95 percent certain to begin with. So this is highly
statistically significant.
    Q. Now the high group that you identified, those are willing to have a
promotional -- willing to use a promotional item or have one, they were --
their lower bound was 1.47, so that was clearly nowhere near one, right, for
the high group?
    *27 A. Yes. This was highly statistically significant, and what that
says is that tripled, almost tripled their risk of moving -- progressing
towards smoking.
    Q. Now because he didn't collect data in that 1993 -- or excuse me, 1994
and 1995 period, you don't know what else was going on in those adolescents'
lives; do you?
    A. You know, this accounted for a lot -- the data here, that's why he
did attributable risk, an attributable risk calculation, which is a
different calculation than what we were coming up with, and what he could
tell from this data was that the progressions to smoking -- to
experimenting, not even -- the progression to smoking, over a third of that
was accounted for by advertising and promotion.
    Q. My question was: You don't know, as one who reads this study, because
there's no data on it, about what else may have happened with respect to the
study subjects in 1994 or 1995; correct?
    A. You don't need to know in this particular case; the data are very
strong, he has very good response rates, and he's accounting for a large
part of the behavior.
    Q. So putting aside whether you need to know, is it true that from this
data you don't know, there is no data for what was going on in '94 or '95?
    A. Well you know that half of them were progressing to smoking.
    Q. Under the definitions we discussed; correct?
    A. Half of them were progressing to smoking.
    Q. Now was there any data whatsoever collected in this study about
whether any of these individuals in 1994, in 1995, may have got new friends
who were smokers?
    A. There was no data collected in 1994 and 1995. You know, you can't
collect everything in one study. This study is very, very important because
it's a longitudinal study, because they looked at non-susceptible never
smokers, looked at the progression to smoking, and were able to come up with
a large explanation for why people progressed to smoking.
    You know, these are people who said in 1993 that even if their friends
offered them a cigarette, they would say no. They would say no. So -- and we
are not going to be able to collect data every single month on adolescents.
This is a longitudinal study over a large period of time with a very good
response rate, representative of adolescents in California, and, you know, I
don't think that those confound -- if those confounders existed, they're
probably taken care of at baseline.
    Q. Now the study doesn't report on whether people who were progressing,
18, 19, 20, ages of that type, whether they had new friends who smoked or
whether they dated people who smoked, they don't report any of that data in
the interim; do they?
    A. You know, you can criticize every study on some merit. This
particular study was accepted by the lead journal, the Journal of the
American Medical Association, a leading medical journal, based on its
statistics and based on its results and the conclu -- and -- and based on
the -- on the conclusions. And so, you know, if we were able to have
intermediate data, that's one thing, but the data are completely consistent
with the 1993 data with the entire sample which is in an Evans, et al,
publication, completely consistent.
    *28 Q. Is the answer that no, that data wasn't collected?
    MS. WALBURN: Objection, asked and answered multiple times now.
    THE COURT: It's been asked and answered now.
    Q. Could you turn to Exhibit 26061, professor. Do you have that there?
    A. Yes, I do.
    Q. This is the last of the studies you talked about; correct?
    A. This is the last of the sample of studies in the 1990s that I talked
about.
    Q. Now could you turn to page seven. And I'll tell you that not all the
pages are numbered. The copy we got from plaintiffs has pages every --
numbers every other page, so you may have to flip back and forth to get
there.
    Do you have that?
    A. Yes, I do.
    Q. And on paragraph seven -- or excuse me.
    On page seven, the author discusses how he obtains his data; correct?
    A. Correct.
    Q. And this is labeled as a study covering '79 to '93; correct?
    A. Yes.
    Q. Now I started this (referring to handwritten chart on easel) to save
us some time a little while ago.
    Now he starts off in the first item in the National Health Interview
Survey -- which I've labeled NHIS; correct?
    A. Yes.
    Q. And that included data on 243 17-year-old smokers, if you look at the
bottom of that description.
    A. Yes.
    Q. Then --
    And that was for '79 and '80 in his study; correct?
    A. Right.
    Q. Then for 1981, for 1982, for 1983, for 1984, and for 1985, there was
no data; correct?
    A. You mean for adolescents.
    Q. Right.
    A. Yes, that's right.
    Q. Then in 1986 he used data called Adult Use of Tobacco Survey and
pulled out data from there on 17 -- on one hundred 17- and 18-year-olds;
correct?
    A. That's right.
    Q. Then in 1987 and 1988, no data; correct?
    A. That's right.
    Q. Then in 1989 he used the Teen-age Attitude and Practices Survey;
correct?
    A. That's right.
    Q. And that was 543 12- to 17-year-olds; correct?
    A. Five hundred fifty-four; isn't it?
    Q. Five hundred fifty-four. Okay.
    Then 1990 there was no data; right?
    A. Right.
    Q. 1991 there was no data; correct?
    A. Right.
    Q. 1992, could --
    Could you tell the ladies and gentlemen of the jury where he got his
data for 1992?
    A. He got it from the 1992 Gallup poll.
    Q. And wasn't that the poll you said you found unreliable?
    MS. WALBURN: Objection, misstates the testimony from yesterday.
    THE COURT: Sustained.
    Q. And in 1993 he used another TAPS survey on 12 to 17; correct?
    A. That's right.
    Q. And the Gallup poll was 12 to 17, about 165 and about 438. So that in
this period from '79 to '93 there were one, two, three, four, five, six,
seven, eight, nine years with no data; right?
    A. That's right.
    Q. And the data that was used came from one, two, three, four different
types of data collection. This TAPS is consistent both times; correct?
    A. Ah --
    Q. In other words, he used NHIS for two years, he used AUTS for one, he
used TAPS for two and he used Gallup for one; correct?
    *29 A. Yes. They're all asking about what brand do you usually smoke, so
I mean that's what this study is looking at, the relationship between the
amount of advertising dollars and the brands that young people smoke, and --
and so they're going to have, I think, pretty comparable data because it's a
behavioral very simple question of which brand do you usually smoke.
    Q. And because he was missing so much data and because he was using
different sources, what he did was he put all that together, and starting on
page eight created a statistical model; correct?
    A. He used the --
    He didn't put that all together. He did it -- he did it longitudinally.
So he didn't clump the data all together, he looked at it in time periods so
it wasn't all added together.
    Q. But he created a new model to analyze it; correct?
    A. Well the whole purpose of this was to create a model to look at the
relationship between advertising and what brand people --
    And the whole purpose of the study was to do just this; very complicated
statistical analysis to create a model to see who's more sensitive to
advertising, adults or adolescents.
    Q. Now he made it clear here that his study did not address smoking
initiation, product adoption, starting date; correct?
    A. His study dealt with the relationship between amount of money spent
on advertising and which brands adolescents smoked.
    Q. This was not a study, and it expressly said it wasn't, was not a
study that addressed the issue of whether advertising causes initiation, it
was looking at the brand choice issue; correct?
    A. He was looking at the -- at how sensitive adolescents are to
advertising versus adults.
    Q. Would you have used a study, as the one who was senior scientific
editor of the 1994 Surgeon General's report that's responsible for assuring
the scientific integrity of the data, would you have used a study that
didn't have data for more than half the years it covered?
    A. You know, this -- this is in a good journal, Journal of Marketing. I
know -- certainly know Dr. Giovino and Dr. Eriksen. Dr. Giovino I've worked
with. He was a statistician for the epidemiology chapter of the 1994 Surgeon
General's report. And I would trust, one, the peer-review system that this
is a credible article, and I know these people, and at least one of them is
an excellent biostatistician or epidemiologist. So I would use this article
in it if I had had it in the 1994 Surgeon General's report, and I would use
the conclusion, which is that these models turned out to be very stable, so
there's a statistic that tells you is it a good model or is it a bad model.
So independent of gaps and so forth, the statistics tell you is it a good
model, is it a bad model. And the model worked better when you looked at
adolescents by themselves and adults by themselves, rather than putting all
that data together, and adolescents turned out to be three times more
sensitive to advertising than did adults.
    Q. And to get the three times number, what he did was he had compared
adolescents, which was for his case up to 17, and all those who were 18 and
over, those were the groups he compared to come up with this three times
number; correct?
    *30 A. Well he used those adolescent surveys that we talked about, and
then a whole different set of surveys, which are, of course, more readily
available for -- for adults.
    Q. Do you know --
    So that included in here were adults who were 50, 55, 60, 65, whatever;
correct?
    A. I would assume so.
    Q. Do you know what the results would have been -- did Dr. Pollay report
what the results would have been if he broke out numbers like age groups
from 18 to 34 or 18 to 40, did he report that in this article?
    A. No. I think it would be an excellent suggestion that -- for another
article. This article looked at the way things usually are broken out, by
adult market share and they looked at teen market share, and they found
teens were more responsive than the adult market share.
    Q. Could you turn to Exhibit 30259A, professor. That doesn't,
unfortunately, show up very well.
    MR. WEBER: Your Honor, could I have the court's permission to just hold
this in front of the jury for a moment and come back so they can remember
what it was?
    THE COURT: Sure.
        (Document displayed to the jury.)
    Q. Did you instruct the photographer on where to go or what pictures to
take, professor?
    A. I instructed the photographer to take pictures of billboards and bus
stops, convenience store, and point of purchase.
    Q. Did you tell him what to photograph at the convenience store?
    A. I told him to photograph inside, and if there were any, what kinds of
displays and advertisements.
    Q. You wanted him to take a fair picture, a representative picture;
didn't you?
    A. I was trying to share with the jury the concept of pervasiveness in
the -- in those photographs, and so that's what -- what we got out of it. I
didn't, for example, instruct him to get particular promotional items that
would have been aimed at -- at -- which I would have thought would have been
aimed at children. That's why the ice scraper there, that's not something
that would be so appealing to -- to an under-age teen.
    Q. You wanted him to take fair pictures, representative pictures; right?
    MS. WALBURN: Objection, asked and answered.
    THE COURT: She's answered it.
    Q. Did you tell this photographer in this store not to take pictures of
the We Card signs at the cash register?
    A. No, I didn't.
    Q. They're not on that picture; are they?
    A. That was not -- part of my instructions was not --
    That We Card had nothing to do with my instructions.
    Q. The instructions you got from the lawyers?
    A. I didn't get instructions. This was my idea.
    Q. Okay. And so you didn't think it a part of being fair in taking these
pictures to show that near the cash register are We Card signs supplied by
the tobacco companies telling people they can't buy there unless they've got
I.D.?
    A. My purpose in these was to share with the jury a reminder of how
pervasive advertising is. That was my purpose. I didn't say anything about
the We Card one way or the other.
    *31 Q. Would you turn to page 79 of the '94 Surgeon General's report.
    Do you have that? Professor?
    A. Yes, I do.
    Q. Now these are trends in the intensity -- well let me go back a
second. This is a chart included in the Surgeon General's report you edited?
    A. Yes, it is.
    Q. And this chart is labeled "Trends in the intensity of smoking among
high school seniors;" correct?
    A. That's right.
    Q. Now if you could just check the monitor when I put my pen on the line
so you can know which line I'm referring to so we have no confusion, this
thin line here, that's the line for ever -- well for someone who has smoked
but not in the past 30 days; correct? That line there.
    A. Yes, it looks like the line, it doesn't look quite correct, but that
is the line.
    Q. That's a line in the Surgeon General's report; correct?
    A. Right.
    Q. And that line over this period of time from 1976 to 1992 goes down
just a slight bit over that period of time; is that fair to say? If you look
at the right axis.
    A. Yes.
    Q. And that's anybody who's ever smoked but not in the last 30 days.
    Now this line here, professor, the bold kind of dashed line, do you see
that?
    A. Yes.
    Q. That's a line for anyone who smokes a half pack or more a day in the
last 30 days; correct?
    A. Right.
    Q. And over that period of time that line went down also; did it not?
    A. Yes.
    Q. Then there's a very thin dotted line going across there, and that's
someone who had less than one cigarette a day in the last 30 days; correct?
    A. Yes.
    Q. And it doesn't quite show up on the monitor as a dotted line, but
it's this line running right along here. And that stayed just about flat
across this period of time; correct?
    A. Yes.
    Q. Then there's the other dotted line which is one to five cigarettes a
day in the past 30 days; correct?
    A. Yes.
    Q. And over that period of time that line, from start to finish, went
down a little; correct?
    A. Yeah. That would be considered flat.
    Q. Now from 1976 through 1992, expenditures on the advertising and
promotion of cigarettes increased and increased substantially; correct?
    MS. WALBURN: Objection. We've been through this on a couple of occasions
already. Asked and answered.
    MR. WEBER: It's a different chart.
    THE COURT: We aren't going to go through this again, are we?
    MR. WEBER: No. I'm almost done with this chart. I think one more
question.
    THE COURT: All right.
    Q. Correct, professor?
    A. There was a lot going on during the 1980s, and so we can't give any
simplistic answer to this. There was an increase in advertising and
promotional expenses and there was a lot of anti- smoking activities going
on during the 1980s.
    Q. And even with the substantial increase in advertising and promotion
expenditures from 1976 to 1992, the only line that continually increases is
the line labeled what?
    A. Those are the high school seniors that never smoked. And if we see,
only 35 percent even at the end never smoked. That means 65 percent had
smoked.
    *32 Q. And the line that goes up continually is the never smoking line;
correct?
    A. Yes.
    MR. WEBER: No further questions, Your Honor.
    THE COURT: You want to recess now and reconvene tomorrow morning?
    MS. WALBURN: We are prepared to proceed or we can recess until tomorrow,
whatever the court prefers.
    THE COURT: How long have you got, roughly?
    MS. WALBURN: About a half hour.
    THE COURT: Why don't we recess then. We'll reconvene tomorrow morning at
9:30.
    THE CLERK: Court stands in recess, to reconvene tomorrow morning at
9:30.
        (Recess taken.)

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