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 25, 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. BLEAKLEY: Thank you, Your Honor.
HYMAN BERMAN called as a witness, being previously sworn, was examined and testified as follows:
BY MR. BLEAKLEY:
Q. Good morning, Professor Berman.
A. Good morning, Mr. Bleakley.
MR. BLEAKLEY: Good morning, ladies and gentlemen.
(Collective "Good morning.")
Q. Yesterday afternoon, I think I may have confused you with one of my questions, jumped back and forth between World War I and World War II. It was my mistake.
When I was asking you about the use of cigarettes during World War I and World War II, were your answers dealing only with World War I?
A. Yes.
Q. When we broke yesterday we were at about that point in talking about the role of World War I in establishing the popular use of cigarettes.
Let me ask you this: Going back to the 19th century, was there opposition to the use of cigarettes in Minnesota during that period of time?
A. Yes, there was quite a bit of opposition to the use of cigarettes in Minnesota during that time.
Q. Was the opposition to the use of cigarettes reported in the public press during that period of time?
A. Yes, it was.
Q. Would you turn to tab six in your book there, please, Exhibit BYB000426. This is an article from a newspaper; is that correct?
A. That's correct.
Q. The May 11, 1876 edition of a paper called The Minneapolis Citizen?
A. That is correct.
Q. An article about a book by Sir Benjamin Richardson; is that correct?
A. That is correct.
Q. Is this one of the newspaper articles that you found during the course of your research in this matter?
A. Yes, it is.
Q. Is this the kind of source material that historians normally rely upon in doing historical analyses?
A. Yes, it is.
Q. And does this article form a part of the basis of the opinions that you have in this matter?
A. Yes, it did.
MR. BLEAKLEY: At this time, Your Honor, we move the admission of BYB000426.
*2 MR. CIRESI: Objection, Your Honor, it's hearsay. There's no admission in this document; simply a newspaper article.
MR. BLEAKLEY: This is not hearsay, Your Honor. It's not being offered for the truth of what is stated in the article or what is stated by Sir Benjamin Richardson, it is offered for the state of mind and for notice. It is self- authenticating, it's more than 20 years old, and it is the kind of material that is normally relied upon by an expert of this sort.
MR. CIRESI: Well, Your Honor, our objection is not based on self- authentication for a newspaper article under 903(6). This is hearsay, and our objection is based on that. It relates to some book, what book we don't know. We don't know who wrote this.
THE COURT: The court will receive the exhibit.
BY MR. BLEAKLEY:
Q. It's a very hard document to read because it's very old. Can you highlight the portion that's in yellow for us.
This is a phrase from the book written by Sir Benjamin Richardson; is that correct?
A. That is correct.
Q. And it was reported in The Minneapolis Citizen in 1876?
A. That is correct.
Q. And that was a newspaper that the people of Minneapolis saw in 1876?
A. That is correct.
Q. And it reads that, "Smoking tobacco, and the use of tobacco in every form, is a habit better not acquired, and when acquired is better abandoned." Is that correct?
A. That is correct.
Q. And further down on the page do you see the statement, "Excessive smoking has proved directly fatal?"
A. That's correct.
Q. Right?
And what is the significance of this newspaper article --
A. It shows --
Q. Excuse me, let me finish my queston.
-- the significance of this newspaper article to your opinions in this case?
A. It shows that early on here in 1876, the newspaper in Minneapolis was reporting about a book that in fact described what in fact was a habit-forming character of cigarette smoking -- or tobacco in any form, actually, and that it was -- in fact that excessive smoking was deadly. And consequently, it's part of the total picture, a small part of the total picture of the information flow regarding the health hazards of smoking that came to the people of, in this instance, Minneapolis.
Q. Were there anti-tobacco groups active in Minnesota in the 19th century?
A. Yes, there were.
Q. Can you give us -- give us a couple of examples?
A. Yes. The most prominent of the anti-tobacco groups in the end of the 1890s into the 1900s was the Women's Christian Temperance Union. In addition to that, there was the -- the Anti- Cigarette League that was formed in 1897 that had a Minnesota connection. There was the No-Tobacco League that was formed in -- a little bit later in the 1900s, and there were quite a number of other anti-cigarette or anti-tobacco groups that were prominent both nationally and in the state at large.
Q. Let's move forward into the 20th century, and in particular into the 1920s and 1930s.
*3 A. Uh-huh.
Q. Where --
Was there opposition to smoking in Minnesota on health grounds during this period of time?
A. Yes, there were.
Q. Can you give us some examples of -- prominent examples of the opposition to smoking during this period?
A. Yes. One of the most prominent, of course, in the 1920s, lasted through the '30s and '40s, was the No Tobacco League that was headed by a professor of physics at the University of Minnesota, Professor Anthony Zellony. He wrote extensively regarding the moral and the health hazards of smoking and organized extensively to eliminate, insofar as possible, the use of cigarettes in our society.
Q. Were there any other prominent Minnesotans who opposed smoking during this period of time?
A. Yes, there were.
Q. Can you give us a couple of examples?
A. Yes. Another one, of course, was Professor Harold Diehl of the University of Minnesota Medical School, professor of public health, who became dean of the medical schooland later on became -- after retiring, went on to be research director at the American Cancer Institute.
Q. And what was the nature of Dr. --
Was he a physician?
A. He was a physician, yes.
Q. -- of Dr. Diehl's opposition to smoking?
A. Dr. Diehl early on began writing about the health risks of smoking and was, of course, a prominent contributor to the popular information regarding the health risks of smoking throughout the '30s and '40s into the '50s and into the '60s.
Q. Would you turn to tab 17 in your book there, Exhibit BYB000203. Do you have that?
A. I have that.
Q. This is a book entitled "Healthful Living" by Harold S. Diehl, M.D., Professor of Preventive Medicine and Public Health and Dean of The Medical Sciences of the University of Minnesota; is that correct?
A. That is correct.
Q. Is this a document that you found during the course of your research?
A. Yes, it is.
Q. And is it an example of the kind of materials upon which a historian relies in conducting historical analyses?
A. Yes, it is.
Q. And does it form a part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, we'd move the admission of BYB000203.
MR. CIRESI: Is it the complete exhibit, counsel?
MR. BLEAKLEY: This is only a chapter. The complete exhibit is -- the original exhibit, I believe, was BYB000375.
MR. CIRESI: We have no objection to the complete exhibit going in.
THE COURT: You'll have to introduce the complete exhibit.
MR. BLEAKLEY: All right, Your Honor, we have the --
THE COURT: That number is what again?
MR. BLEAKLEY: The complete exhibit has a different number, and that is 000203A.
THE COURT: And are you moving to introduce that?
MR. BLEAKLEY: Yes, we'll move the entire exhibit.
THE COURT: Okay. Court will receive 000203A. BYB000203 will not be allowed in because it's incomplete.
MR. BLEAKLEY: All right.
*4 BY MR. BLEAKLEY:
Q. And can you tell us what this book is, Healthful Living, by Dr. Diehl?
A. Yes. This is a textbook that Dr. Diehl wrote in the early 1930s. This one happens to be published in 1935. And Dr. Diehl's book was introduced by one of the most prominent medical practitioners of the early part of the 20th century, the early part of the 1900s. Dr. Morris Fishbein was the editor of the Journal of the American Medical Association at the time.
Q. And does Dr. Diehl talk about cigarettes and tobacco in this book?
A. It does.
Q. And can you generally summarize what his view is of the use of cigarettes?
A. Yes. What Dr. Diehl does in this textbook is to in fact point out what in 1935 was, at least to his knowledge, the state of information regarding the health risks of smoking, and they were quite extensive as far as he was concerned, and he summarized that and wrote very extensively about that in this textbook Healthful Living.
Q. Were there any other prominent Minnesotans who were opposed to the use of tobacco during this period of time?
A. Those were the most prominent ones, but there -- there were quite a few others as well.
Q. Do you know of a Moses Barron?
A. Oh, yes. Dr. Moses Barron was, of course, one of the most significant medical practitioners in the medical school, and his -- he became aware and concerned about cigarette smoking in the early 1920s. I'm not sure whether it was 1922 or 1923. But at that time he conducted an autopsy of a cadaver at the University of Minnesota Hospital's Medical School and found what for him was the first example of a diseased, cancerous lung; that he then was so taken by that that he called in all of the existing medical students at the University of Minnesota to look at that, saying, "Look at this. You'll probably never see anything like that again."
MR. CIRESI: Excuse me. Excuse me, Your Honor.
A. But obviously he was wrong.
MR. CIRESI: Excuse me.
THE WITNESS: Yes.
MR. CIRESI: Sorry, professor. Your Honor, it's calling for hearsay. There's no foundation for it.
THE COURT: I'm let the answer stand.
BY MR. BLEAKLEY:
Q. Let's go back for a moment, professor, to Dr. Diehl. Would --
Was Dr. Diehl's writings on the use of cigarettes reported in the public press in Minnesota?
A. Yes, they were. Extensively reported.
Q. Would you turn to Exhibit 19 in your book, please.
A. Nineteen?
Q. Yes. This is BYB000232A.
A. I have it, yes.
Q. This is an article from the Minneapolis Tribune dated Sunday, April 4, 1965; is that correct?
A. That's correct.
Q. And is this article one of the articles that you found during the course of your research in this matter?
A. Yes, it is.
Q. And is it the kind of material that historians normally rely on in the course of historical analysis?
A. Yes, it is.
Q. And does it form a part of the basis for your opinions in this case?
*5 A. Yes, it did.
MR. BLEAKLEY: Your Honor, we'd move the admission of BYB00023A.
THE COURT: 23A or 232A?
MR. BLEAKLEY: Sorry, 232A.
THE COURT: All right.
MR. CIRESI: Same objection with regard to hearsay, Your Honor.
THE COURT: The court will receive --
MR. CIRESI: Is it being --
THE COURT: Huh?
MR. CIRESI: Is it being offered for the truth or falsity?
MR. BLEAKLEY: It is not being offered for the truth.
MR. CIRESI: Oh.
THE COURT: Okay. Then on that basis the court will receive BYB000232A.
BY MR. BLEAKLEY:
Q. And is this Exhibit BYB000232A, an article reporting on Dr. Diehl and his opposition to smoking in the Minneapolis Tribune?
A. Yes, it is.
Q. What is the significance to your opinions in this case of the activities of people like Professor Zellony, Professor Barron and Dr. Diehl?
A. All three of these people were in fact opinion leaders in Minnesota at the time, respected members of the academic community, were in fact constantly contacted by the press when issues that they were familiar with were -- came of public interest, and thus their views became widely known throughout the state of Minnesota. In addition to which Dr. Diehl was a writer of -- extensive writer of textbooks which were used widely in Minnesota schools. Professor Zellony was a crusader, and as a crusader was avidly against cigarette smoking particularly, but all tobacco usage, and he wrote also extensively regarding the -- the health hazards of smoking. His writings were also reported about in the press and were distributed widely by various advocacy groups that were opposed to smoking in our society.
MR. CIRESI: Your Honor --
Q. Did you --
MR. CIRESI: Excuse me, counsel. I'm going to move to strike those portions of the answer which are clearly hearsay and conjecture on the part of the witness without any foundation.
THE COURT: As to the answer that said that his views were known widely, you'll have to lay foundation before that answer can stand. The rest of it will stand.
BY MR. BLEAKLEY:
Q. How do you know that his views were known widely?
A. From reading accounts in the press of their activities, you can see that they were -- it was very widely reported.
Q. Is this kind of newspaper article; that is, that is reported in Exhibit BYB000232A, representative of other newspaper articles that you read in this case, --
A. Yes.
Q. -- in your research in this case?
A. Yes, it is. This is just a typical one.
Q. Let me ask you: You made reference earlier when you gave your list of the kinds of source materials that you reviewed, you talked about popular culture.
A. Yes, I did.
Q. And how is popular culture significant in determining the level of awareness of people about things like smoking and health?
A. Popular culture gives you a kind of insight into the popular mind, the popular mindset, the general point of view that - - that people have. They express themselves either in slang terms or do in fact accept certain caricatures, certain stereotypes that are in either cartoons or otherwise, that give us a kind of, again, insight into what they are thinking and what they know. In addition to which they -- the songs, popular songs, movies -- also give us kind of insight into what was in fact the mindset of the -- of people at the time.
*6 MR. CIRESI: Your Honor, I'm -- I'm going to object to that. The professor is not a psychiatrist or psychologist. This is just calling for pure speculation on his part as to what's in the minds of others.
THE COURT: As to -- his answer as to what's in the mind of others, that is stricken. He is not qualified.
BY MR. BLEAKLEY:
Q. Is popular culture one of the bases upon which historians do historical analyses?
A. Yes, it is.
Q. And one of the ways in which historians attempt to re- create what happened in past times?
A. Yes, it is.
Q. Let me ask you this: Did you find any references to the health risks of smoking in popular culture in the 19th century?
A. I'm sorry?
Q. In the 19th century.
A. I certainly have.
Q. Can you give us an example.
A. Yes. The widespread use of the term "coffin nails" right from the start in the 19th century gives us an indication that at least that slang expression in reference to cigarettes was in fact widely understood, widely used, and widely accepted.
MR. CIRESI: Your Honor, again I'm going to move to strike the portion which relates to what was understood by someone else. The professor is not qualified in that regard.
THE COURT: Okay. I don't believe he's qualified as to what was understood. The rest of the answer can stand though.
BY MR. BLEAKLEY:
Q. Can you give us any other examples of references in popular culture in the 19th century dealing with the health risks of smoking?
A. Yes. There are quite a few others. One looks at -- at an expression like "little white slavers" as another example of a kind of slang expression that was widely accepted and widely held at that time.
Q. Would you turn to --
MR. CIRESI: Excuse me, Mr. Bleakley. Again, Your Honor, the professor keeps talking about what was accepted or held. He's attempting to delve into the minds of people, and he's not qualified.
THE COURT: Well I'll let the answer stand.
BY MR. BLEAKLEY:
Q. Would you turn to tab 82, professor.
A. Eighty?
Q. Eighty-two. Sorry. It's demonstrative Exhibit X1158.
A. Yes, I have it.
MR. BLEAKLEY: Do you have it, counsel?
Q. This is a quotation attributed to Mark Twain; is that right?
A. That is correct.
Q. And did you find this quote attributed to Mark Twain during the course of your research in this matter?
A. Yes.
Q. And is this kind of quotation from part of the kind of popular culture that you were talking about that historians look at when they're doing historical analyses?
A. Yes, it is.
Q. And does this quotation form a part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, we'd move the admission of demonstrative Exhibit X1158.
MR. CIRESI: Is this for illustrative purposes?
MR. BLEAKLEY: For illustrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X1158 for illustrative purposes.
*7 BY MR. BLEAKLEY:
Q. The quotation from Mark Twain, attributed to Mark Twain is "Giving up smoking is easy. I've done it a thousand times."
A. That is correct.
Q. What is the significance of this quotation as a part of the popular culture you examined and what significance it has to your opinions in this matter?
A. The fact that Mark Twain used that quotation, the fact that it was seen as a kind of semi-humerous quotation, indicates to me that there was in fact widespread understanding that quitting smoking was difficult.
Q. You mentioned --
MR. CIRESI: Excuse me. Your Honor, again I'm going to move to strike the last portion.
THE COURT: Yeah. As to the "widespread understanding," that will be stricken.
MR. BLEAKLEY: May we approach for just a second, Your Honor?
THE COURT: Sure.
BY MR. BLEAKLEY:
Q. Yesterday when you talked about different elements of popular culture, you mentioned songs. Do you remember that?
A. I do.
Q. Do you --
Are you aware of any popular songs that make references to smoking-and- health issues?
A. I am.
Q. Can you give us an example.
A. Yes. In the -- the 1940s, '47 I believe it was, a very popular song reached the top of the charts, that Tex Williams song "Smoke, Smoke, Smoke."
Q. And what was the reference to smoking and health in that song?
A. It's a very direct reference to the difficulties of giving up smoking.
Q. Would you turn to tab 85 in your book, which is demonstrative Exhibit X1150. This is a quotation of a couple of lines from that song; is that correct?
A. That is correct.
Q. And is this song and this quotation something you found in the course of your research?
A. Yes, it is.
Q. And is it the kind of part of popular culture that historians normally take into account in doing historical analyses?
A. Yes, it is.
Q. And does it form a basis -- part of the basis for your opinions in this matter?
A. Yes, it does.
MR. BLEAKLEY: Your Honor, we would move the admission of demonstrative Exhibit X1150.
MR. CIRESI: Is this for illustrative purposes?
MR. BLEAKLEY: For illustrative purposes only.
MR. CIRESI: No objection.
THE COURT: I don't think I'll allow this unless the professor can sing it.
(Laughter.)
THE WITNESS: Your Honor, I'll be very happy to, but if the jury isn't bored by now, they'll be tone deaf afterwards.
THE COURT: All right. Then I'll allow it, X1150.
MR. BLEAKLEY: You remember, Your Honor, in my opening statement I promised that I wouldn't sing it.
THE COURT: Yes. Well I didn't suggest that you sing it.
BY MR. BLEAKLEY:
Q. "'Smoke, Smoke, Smoke That Cigarette' Song Lyrics," and the line that is quoted here is, "Smoke, smoke, smoke that cigarette
"Puff, puff, puff and if you smoke yourself to death..."
*8 "Nicotine slaves are all the same."
That came from this song?
A. That is a refrain in that song, yes, sir.
Q. Okay. Now you said that the second period that you -- you studied or the category that you -- the categorization was the period -- the first period was up to -- up to 1950.
A. That's correct.
Q. And then you said the second period in which have you divided your research was from about 1950 to about 1964; is that correct?
A. That is correct.
Q. And would you remind us again very briefly of why this period from 1950 to 1954 was significant -- '64 was significant?
A. Yes. That period, 1950 to '64, saw a kind of veritable explosion of information regarding specific studies done regarding the health risks of smoking and were constantly coming forward to the public, and as a result the volume of coverage in the press, the volume of activity in the public arena on the issues of smoking and health became increasingly significant and increasingly large; therefore, I call this the transition period.
Q. Now, did you find in the course of your research any public opinion polls that dealt with people's understanding or awareness of smoking-and-health issues at about 1950?
A. Yes, I have.
Q. Would you turn to tab 30 in your book, please. This is a 1949 Gallup poll --
MR. BLEAKLEY: I'm sorry, Exhibit No. AG000185.
THE COURT: Counsel, can you give me that again, please?
MR. BLEAKLEY: I'm sorry. Yes, Your Honor, AG000185, and it should be tab 30 in your book.
THE WITNESS: Yes, I have it.
MR. BLEAKLEY: Did you find it, Your Honor?
THE COURT: Yes.
MR. BLEAKLEY: Okay.
Q. This is a Gallup poll from 1949; is that correct?
A. That is correct.
Q. Let me ask you first: Is this a poll that you found in the course of your research?
A. Yes, it is.
Q. And are public opinion polls the kinds of tools that historians use in historical analyses?
A. Yes, it is.
Q. And does this public opinion poll form a part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, we move the admission of AG000185.
MR. CIRESI: Is this the complete poll, counsel?
MR. BLEAKLEY: Yes, this is the complete document as they are found and published.
THE COURT: Is this complete as to any cigarette reference?
MR. BLEAKLEY: Yes.
THE COURT: Okay.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive AG000185.
Q. Now do you see --
MR. CIRESI: Just a second. I assume this is for --
MR. BLEAKLEY: For illustrative purposes.
MR. CIRESI: -- illustrative purposes and not for truth or falsity.
MR. BLEAKLEY: Not for truth.
BY MR. BLEAKLEY:
Q. Can we highlight that on the bottom left, the question on the bottom left. That's it.
The question was asked: "Do you think cigarette smoking is harmful or not?"
And then the answer on the next column where it says cigarette smokers and non-cigarette smokers, can you highlight that? So this poll reflects that as of 1949, 52 percent of cigarette smokers thought that cigarette smoking was harmful to health; is that right?
*9 A. That is correct. That's what the Gallup poll found.
Q. And among non-smokers 66 percent thought that cigarette smoking was harmful to health.
A. That's what the Gallup poll found, yes.
Q. And this is just about the close of the first period of your analysis; that is, the period up until about 1950.
A. That's correct.
Q. Okay. Now Professor Berman, the ladies and gentlemen of the jury have heard a lot about the epidemiological and statistical studies that were published in the 1950s on smoking and health. Were these studies reported in newspapers and periodicals?
A. Yes, they were.
Q. Were they widely reported in newspapers and periodicals?
A. They were very widely reported.
Q. Were they reported in newspapers in Minnesota?
A. Yes, they were.
Q. And were they reported in periodicals read by the people of Minnesota?
A. Yes, they were.
Q. One of the studies that the jury has seen in this case is done by a couple of people named Graham and Wynder. Were the Graham and Wynder studies reported in the newspapers?
A. Yes, they were.
Q. In Minnesota?
A. Yes, they were.
Q. And in national news magazines?
A. Very much so, yes.
Q. Would you turn to tab 20, please.
A. Twenty?
Q. Yes. That's Exhibit CSP000012. This is an article from Reader's Digest in January 1950; is that right?
A. That is correct.
Q. And is this article from Reader's Digest in January 1950 one of the documents that you found in the course of your research?
A. Yes, it is.
Q. And was Reader's Digest a national magazine published throughout the United States then?
A. Yes, it was.
Q. And --
A. It is. Still is.
Q. And still is?
A. And still is.
Q. And is an article such as this the kind of material that a historian normally relies upon in conducting historical analyses?
A. Yes.
Q. And does it form a part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, we move the admission of CSP000012.
MR. CIRESI: On what basis?
MR. BLEAKLEY: On the basis that it is part of the materials that Professor Berman relied upon in his research, that it is the kind of material upon which a historian normally relies, and that it forms part of the basis for his opinion in this matter.
MR. CIRESI: I understand that. Is it --
Are you entering it for the truth or falsity is what I'm asking.
MR. BLEAKLEY: I'm entering it for the notice that the people of Minnesota and the public had about articles relating to smoking and health in the 1950s, --
MR. CIRESI: On notice --
MR. BLEAKLEY: -- not for the -- not for the truth of the statement made about smoking and health in the article.
MR. CIRESI: And then I have no objection, Your Honor.
THE COURT: All right. Court will receive CSP000 -- is it 812?
MR. BLEAKLEY: 000012.
THE COURT: I have a misprint here.
MR. BLEAKLEY: Oh, you do? I'll take your word for it. 000012.
*10 BY MR. BLEAKLEY:
Q. This is the January 1950 Reader's Digest, and it has an article entitled "How Harmful Are Cigarettes;" correct?
A. That's correct.
Q. And this article reported on the Wynder and Graham study before it was even finished; didn't it?
A. It did.
Q. And the article stated that the study, when published, was expected to show increased cancer risks of smokers; correct?
A. That's what the article says, yes, sir.
Q. Would you turn to tab 29, which is an article from Reader's Digest in April 1950 --
A. Uh-huh.
Q. -- entitled "I Quit Smoking; Man or Smokestack."
A. Yes.
MR. CIRESI: Counsel --
MR. BLEAKLEY: I'm sorry, Exhibit No. CSP000011.
MR. CIRESI: Thank you.
BY MR. BLEAKLEY:
Q. Is this a Reader's Digest article that you found in the course of your research?
A. Yes, it is.
Q. And is it also the kind of article that historians rely on?
A. Yes, it is.
Q. And does it form a part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, we move the admission of CSP000011 on the same basis that we moved Exhibit 000012.
MR. CIRESI: No objection, Your Honor, on that basis.
THE COURT: Court will receive CSP000011.
BY MR. BLEAKLEY:
Q. And this article also reported on the Wynder and Graham study?
A. Yes, it did.
Q. Are these two articles representative of the kind of articles that appeared in national news magazines in the 1950s regarding the Wynder and Graham study?
A. Yes, it is. Yes, they are. Two.
Q. Now the jury has also heard about a study done by some gentlemen named Doll and Hill. Was that reported in the public press?
A. Yes, they were.
Q. In fact, was that reported in Reader's Digest?
A. Sorry?
Q. Was that reported in Reader's Digest too?
A. Yes, it was.
Q. The jury has also heard of studies done by gentlemen named Hammond and Horn. Was that reported in the public press as well?
A. Yes, it was.
Q. Was it reported in newspapers in Minneapolis?
A. Very widely reported in the newspapers in Minneapolis, --
Q. Would you turn to --
A. -- St. Paul, and throughout the state.
Q. Throughout the state of Minnesota?
A. Yes.
Q. Would you turn to tab 23. This is an article from the Minneapolis Star dated June 21, 1954, article entitled "Study Links Cigarets to Heart, comma, Cancer Deaths." Do you have that in front of you?
A. That's correct.
Q. And is this an article that you found in the course of your research?
A. Yes.
Q. And it also is the kind of article upon which historians rely?
A. Yes.
Q. And does it form a part of the basis for your opinions in this matter?
A. Yes.
MR. BLEAKLEY: Your Honor, we'd move the admission of this document, which is BYB000084A. And I'm sorry, counsel, I didn't mention it before, the exhibit number.
MR. CIRESI: I didn't want to interrupt you, but if you can tell us beforehand, it will help us.
*11 MR. BLEAKLEY: I'll try to do it in advance. Four zeroes 84A. Tab 23, Your Honor.
MR. CIRESI: 84A, counsel?
MR. BLEAKLEY: Yes, 00084A.
MR. CIRESI: Are you offering it on the same basis?
MR. BLEAKLEY: Yes.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive BYB000084A.
BY MR. BLEAKLEY:
Q. This is a really bad copy, but if you would hone in on the very first sentence of the article -- just below that. Just below that.
(Display screen was so pixelated that it
couldn't be read.)
THE WITNESS: Typical.
MR. CIRESI: Is that the information they got, professor?
(Laughter.)
THE COURT: Would you read that for us?
BY MR. BLEAKLEY:
Q. Would you read that first sentence, please?
A. Yes, I will.
"Cigarette smoking among men 50 to 70 years old appears to cause a 75 per cent higher death rate, mostly due to coronary heart disease and cancer, than among non-smokers of the same age, the American Medical Association convention was told here today."
And then it goes on to give -- to deal with Hammond and Horn and what they have in fact reported.
Q. This was reported on the Hammond and Horn study at a American Medical Association meeting?
A. At the American Medical Association meetings, yes.
Q. And it was a front-page article in the Minneapolis Star.
A. It is a front-page article in the Minneapolis Star on June 21st, 1954.
Q. Let me go back just a second to Reader's Digest. Was Reader's Digest a widely publicized news magazine in the 1950s?
A. Yes. In fact it probably was the most widely circulated news magazine -- or magazine in the United States at that time. For a very good reason: it was a magazine that actually summarized popular books, both fiction and non-fiction, and gave summaries of critical articles that would be found in other magazines so that busy readers, busy people who had little time to read, could read Reader's Digest and feel that they were in fact well-informed. That constituted a very large proportion of the population in the United States at the time.
MR. CIRESI: Your Honor, I move to strike the portion which is non- responsive and calls for a conclusion that is speculation, hearsay.
THE COURT: Well I'll let the answer stand.
MR. CIRESI: And just to go back to the previous exhibit, do we have the rest of it? I don't know if the copy that was introduced is the entire exhibit.
MR. BLEAKLEY: Which?
MR. CIRESI: The one that was provided to us was one only page.
MR. BLEAKLEY: Which one are we talking about?
MR. CIRESI: The article in the paper.
MS. WALKER: BYB000084 is an enlargement of the page.
MR. BLEAKLEY: BYB000084 is the page, the original exhibit is 000084.
MR. CIRESI: Thank you, counsel.
BY MR. BLEAKLEY:
Q. What were the other major news magazines in the United States in the 1950s?
A. In the 1950s, Time Magazine was already a very popular and very widely read news magazine, as was Newsweek. U.S. News & World Report was widely read, but not as widely read as the first two. Life Magazine, although not as newsy as the other two, more picture than -- than -- than news, was very widely read. Look Magazine as well was a wide-circulation magazine at that time.
*12 Q. Was Life Magazine a different kind of magazine from the one it is today?
A. Pardon?
Q. Was Life Magazine a different kind of magazine from the magazine it is today, in the 1950s?
A. Yes, it was.
Q. Today it's mostly photos and --
A. Today it's mostly photos with very little text. Then there was little text, some photos.
Q. Now were articles about these epidemiological and statistical studies reported in Time Magazine, for example, in 1950?
A. Yes, they were.
Q. And were they reported in Newsweek Magazine?
A. Yes, they were.
Q. And in U.S. News & World Report?
A. Yes, they were.
Q. And in Life Magazine?
A. Yes.
Q. Turn to tab 25, if you would.
A. I have it.
Q. This is Exhibit GL000098. This is an article from Life Magazine on July 5, 1954, that cost 20 cents --
A. That's correct.
Q. -- in 1954?
A. Uh-huh.
Q. And is this an article that you found in the course of your research?
A. Yes, it is.
Q. And it's the kind of news article that historians normally rely on when they do historical analyses; is that correct?
A. Yes, it is.
Q. Does it part form -- form part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: We move the admission of Exhibit GL000098 on the same basis as we have moved the admission of other newspaper and magazine articles.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive GP000098.
BY MR. BLEAKLEY:
Q. And this article talks about the Hammond and Horn study; does it?
A. Yes, it did.
Q. Would you direct your attention to page 26 of the article.
A. Uh-huh. Yes.
Q. On page 26 the following appears, "The fact was and is that to break one's self of the habit of smoking the convenient, soothing, mildly sedative cigaret is a highly uncomfortable experience. For while tobacco in the medical sense is not addictive or habit forming, it often has an iron grip on its habitual users;" is that right?
A. That's correct. That passage starts on page 26 and continues on page 27.
Q. Now were the newspaper and magazine articles that we've been talking about here representative of other newspaper articles that you reviewed in the course of your research?
A. Yes.
Q. Did you review many other newspaper articles dealing with smoking-and- health issues in the period from 1950 to 1964?
A. Quite a few, yes.
Q. How many --
Do you have -- know how many articles on smoking and health were published by Reader's Digest during this period?
A. How many articles were published where?
Q. By Reader's Digest.
A. By Reader's Digest?
Oh, so far as I recall, it was anywhere from six to a dozen. I'm not sure of the exact number, but there were -- there were quite a few.
Q. Would you turn to tab 33 in your book, please.
A. Uh-huh. I have it.
Q. This is an article from the December 1952 issue of Reader's Digest entitled "Cancer by the Carton" --
*13 A. Yes.
Q. -- and it is CSP000014. And I take it this is one of the Reader's Digest articles that you found in the course of your research?
A. Yes.
Q. And it's the kind of article historians rely on?
A. Yes.
Q. And forms a part of the basis for your opinions in this matter?
A. Yes.
MR. BLEAKLEY: We move the admission of CSP000014 on the same basis that we have moved the admission of other such articles.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive CSP000014.
BY MR. BLEAKLEY:
Q. Now would you turn to tab 32 in your book, which is a demonstrative exhibit, Exhibit 11 -- demonstrative Exhibit X1149, which is an excerpt from the Reader's Digest article that was just entered into evidence as CSP000014.
Is this in fact an excerpt from the 1952 -- December 1952 article entitled "Cancer by the Carton?"
A. It is.
MR. BLEAKLEY: Your Honor, we move the admission for illustrative purposes only of Exhibit -- demonstrative Exhibit X1149.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X1449 for illustrative purposes.
BY MR. BLEAKLEY:
Q. And the excerpt from this article reads, "But what gives grave concern to public-health leaders is that the increase in lung-cancer mortality shows a suspicious parallel to the enormous increase in cigarette consumption (now 2500 cigarettes per year for every human being in the United States)." Correct?
A. That is correct.
Q. Now during this period of time; that is, between 1950 and 1964, did you see articles in newspapers and magazines which questioned the link between smoking and health?
A. Yes, I did.
Q. How many did you see?
A. Quite a few, I think, that questioned the linkage between smoking and health. So there was still a debate going on at that time.
Q. Would you turn to tab 36 in your book, which is Exhibit 000102.
A. Yes.
Q. Sorry, BYB000102. Repeat that, BYB000102, which is an article from the July 24, 1957 issue of the St. Paul Pioneer Press.
A. That's correct.
Q. Now is this an article that you found in the course of your research?
A. Yes.
Q. And it's the kind of article historians --
A. Yes.
Q. -- rely on and forms a part of the basis for your opinions?
A. Yes.
MR. BLEAKLEY: Your Honor, we move the admission of this exhibit on the same basis as the other.
MR. CIRESI: No objection, Your Honor, on that basis.
THE COURT: Court will receive BYB000102.
BY MR. BLEAKLEY:
Q. And this article reports upon statements made by Dr. Joseph Berkson -- Berkson of the Mayo Clinic here, expressing doubt that there was any real connection between cigarette smoking and cancer; is that correct?
A. That's what the article shows, yes.
Q. And that's an example of the kind of article that you read which raised questions about the link between --
A. Yes.
Q. -- smoking and health?
*14 A. That's typical of articles of that kind at any rate, yes.
Q. Who was Dr. Joseph Berkson?
A. Dr. Berkson was a prominent statistician, medical statistician at the Mayo Clinic at that time, and a very well- respected physician as well as statistician in the medical community.
Q. Now we've been talking up to this point in time primarily about national news magazines. Were there --
Was there coverage in Minnesota papers during the period from 1950 to 1964 about these studies?
A. Yes, there were.
Q. Did all of the major Minnesota newspapers cover these events --
A. Yes.
Q. -- in this period of time?
Would you turn to tab 37 in your book, --
A. I have it.
Q. -- which is demonstrative Exhibit X1236. It's a demonstrative exhibit which contains a collage of headlines of articles in Minneapolis -- in Minnesota newspapers --
A. Yes.
Q. -- about these studies; is that correct?
A. That's correct.
Q. And does this collage represent headlines from articles that you actually reviewed during the course of your research?
A. Yes.
Q. And does it form a part of the basis for your opinions --
A. Yes.
Q. -- in this case?
MR. BLEAKLEY: Your Honor, we would move for illustrative purposes only Exhibit -- demonstrative Exhibit X1236.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive X1236 for illustrative purposes.
MR. BLEAKLEY: Your Honor, I have a board with precisely the same which I'd like to hold up and show the jury, if I can.
Is it all right, Your Honor, if I stand here and hold this for a second?
THE COURT: Sure.
MR. BLEAKLEY: Okay. Thank you.
(Poster board displayed to the jury.)
MR. BLEAKLEY: Can you all see that now?
BY MR. BLEAKLEY:
Q. Demonstrative Exhibit X1236 contains headlines from newspaper articles in the Minneapolis Star, the --
A. It's only The Star.
Q. It's all --
This is all The Star.
A. All Star.
Q. These are all Minneapolis Star. Were similar articles --
Did similar articles appear in the St. Paul newspapers?
A. Yes, they did.
Q. And Duluth newspapers?
A. Yes, they did.
Q. And other newspapers?
A. Rochester as well.
Q. These articles are representative --
These headlines are representative of articles of this sort that appeared in Minnesota newspapers during this period; is that correct?
A. That is correct.
Q. Okay. Now, were smoking-and-health issues discussed on television during this period?
A. Very widely discussed on television during this period.
Q. Now remind those of us who are old enough to remember a little bit about what was happening to television and news magazines in the 1950s --
A. Yes.
Q. -- and early 1960s.
A. The early 1950s saw -- saw a major transition in American -- Americans' habits of getting public information and entertainment from magazines to television, from movies to television. Television became a mass medium both of entertainment and of information. By the middle 1950s, its penetration into Minnesota homes was almost universal. Consequently, it was a major source of information, education and entertainment for the people in the state, to the detriment of magazines like Reader's Digest. Unfortunately, that -- that didn't help Macalester College, but that's another matter.
*15 Q. What was the connection between Macalester College and Reader's Digest?
A. Yes. Macalester College was a major recipient of Reader's Digest largesse because the founder of Reader's Digest was a graduate of Macalester College, and his father was one of the presidents of Macalester College.
Q. Were there stories about smoking and health reported on television during this period of time?
A. Yes, there were.
Q. Can you give us an example.
A. I guess the most prominent example, the one that probably has made the largest impact on people at the time that people remember it is the television program -- actually two television programs, two half-hour television programs put open by Fred Friendly and Ed Murrow and CBS and its See It Now documentaries in 1955.
Q. That's Edward R. Murrow?
A. That is Edward R. Murrow, yes.
Q. And his program See It Now?
A. Yes.
Q. And was Edward R. Murrow a well-known television journalist during this period of time?
A. Probably one of the best-known television journalists at that time.
Q. And Mr. Murrow had shows on smoking and health -- I mean had programs on smoking and health on his show; is that correct?
A. That is correct.
Q. Would you turn to tab 52, please.
A. Fifty-two?
Q. Yes. Exhibit AB000106.
A. I have it.
Q. Which is a transcript of Edward R. Murrow's first TV show on cigarettes and lung cancer dated May 31, 1955.
A. That's correct.
Q. And did you find this transcript of Edward R. Murrow's show in the course of your research?
A. Yes, I did.
Q. And is this transcript of this television program the kind of source material that historians use in historical analyses?
A. Yes, it is.
Q. And does it form part of the basis for your opinions in this matter?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, we move the admission of Exhibit AB000106 on the same basis as we have admitted other news magazines and newspaper articles.
MR. CIRESI: Is this a complete transcript of the entire proceeding here?
MR. BLEAKLEY: Yes, it is.
MR. CIRESI: Okay. No objection on that basis, Your Honor.
THE COURT: Court will receive AB000106.
BY MR. BLEAKLEY:
Q. Now would you turn to tab 50, --
A. Fifty?
Q. -- professor.
A. Five zero.
Q. Five zero, yes.
This is demonstrative Exhibit X1159, which is an excerpt from the transcript that is Exhibit AB000106.
A. I have it.
MR. BLEAKLEY: And Your Honor, for illustrative purposes only we move the admission of this excerpt from the transcript that is demonstrative Exhibit X1159.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive X1159 for illustrative purposes.
BY MR. BLEAKLEY:
Q. This reflects that Dr. Wynder, the Dr. Wynder we've been talking about, --
A. Yes.
Q. -- was being interviewed on this show; is that correct?
A. That's correct.
Q. And Dr. Wynder is reported as saying, "We believe that the present evidence very strongly indicates that tobacco smoking, and particularly cigarette smoking, is a major cause of lung cancer." Correct?
*16 A. That is correct.
Q. And it also reports on statements made by Dr. Hueper of the U.S. Public Health Service, "I do not believe that cigarette smoking is one of the major causes of cancer of the lung among the various causes which may be responsible for cancer of the lung." Correct?
A. That is correct.
Q. So opposing views are being reflected on nationwide television in 1955; correct?
A. That -- that is absolutely correct, yes.
Q. And the Edward R. Murrow show See It Now, was that widely watched in the 1950s?
A. Very widely watched. It was, I think, on the same level of viewership as 60 Minutes is today.
Q. Would you turn to tab 53 in your book, which is a transcript of Edward R. Murrow's second TV show on cigarettes and lung cancer, dated June 7, 1955.
A. I have it.
MR. CIRESI: May we have the number, please?
MR. BLEAKLEY: I'm sorry. AB000305.
MR. BLEAKLEY: Your Honor, we move the admission of Exhibit 00 -- AB000305 on the same basis as we have moved the admission of similar exhibits.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive AB000305.
Q. And would you turn to Exhibit 51 --
A. Uh-huh.
Q. -- I mean tab 51 in your book.
A. Fifty-one.
Yes, sir. I have it.
Q. Which is demonstrative Exhibit X1160, based on and an excerpt from Exhibit 000305 -- AB000305; correct?
A. That is correct.
MR. BLEAKLEY: And we move for admission for illustrative purposes only of demonstrative Exhibit X1160.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive X1160 for illustrative purposes.
BY MR. BLEAKLEY:
Q. And in this excerpt from Edward R. Murrow's show, Dr. Rhoads of Sloan- Kettering Institute is quoted as saying, "The conclusion is inescapable to me and my associates that a real relationship exists between the long and continued inhalation of cigarette smoking and the occurrence of cancer of the lung." Correct?
A. That's correct.
Q. Sloan-Kettering Institute, what is that?
A. Sloan-Kettering Institute is probably the most prestigious research institute dealing with cancer/ cancer problems in the United States.
Q. And Dr. Greene of the Yale Medical School is quoted as saying, "I do not attach any fundamental significance to the statistics linking cigarette smoking to human lung cancer. In fact, any statistics that purport to show a cause-and- effect relationship should be taken with a grain of salt;" correct?
A. That is what Dr. Greene said, yes, sir.
Q. So once again we are seeing opposing views being exposed on national television; correct?
A. Yes.
Q. Was Edward R. Murrow a smoker himself?
A. Yes, he was a heavy chain smoker and smoked on camera all the time.
Q. During his show?
A. Pardon me?
Q. During the show you'd see him smoking?
A. During the show he was constantly smoking, there was smoke coming out of his mouth as he was interviewing people.
*17 Q. And did Edward R. Murrow die during this period of time?
A. Yes, he did. He died --
Q. And was his death attributed to lung cancer by -- smoking by some people?
A. He died prematurely by lung cancer, yes, sir.
Q. And was his lung cancer attributed by some people to cigarette smoking?
A. Yes, it was.
THE COURT: Counsel, why don't we take a recess at this time.
MR. BLEAKLEY: Yes, 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. BLEAKLEY: Thank you, Your Honor.
BY MR. BLEAKLEY:
Q. Professor Berman, during this second historical period that we've been talking about; that is, from 1950, about 1950 to about 1964, did you during the course of your research see any public opinion polls dealing with awareness of smoking-and-health issues?
A. Yes, I did.
Q. Would you turn to tab 54 in your book, please, which is Exhibit AG000149.
A. I have it.
Q. This is a question from the Gallup poll in 1954; is that correct?
A. That is correct.
Q. And is this a poll that you came upon during the course of your research in this case?
A. Yes, it is.
Q. And is this the kind of poll that historians rely upon when they're doing historical analyses?
A. Yes.
Q. And does it form a part of the basis for your opinions in this case?
A. Yes, it did.
MR. BLEAKLEY: Your Honor, at this time we move the admission of Exhibit AG000149.
MR. CIRESI: For illustrative purposes?
MR. BLEAKLEY: For illustrative purposes? No.
MR. CIRESI: Well is it being entered for the truth or falsity? That's what I want to know.
MR. BLEAKLEY: We are offering it on the same basis that we have offered other historical articles of this period; that is, notice, and what people were reading and seeing and hearing and what Professor Berman learned in the course of his research.
MR. CIRESI: It's not being entered --
THE COURT: Can you answer the question, counsel, please? Is it being offered for the truth or falsity?
MR. BLEAKLEY: For the truth --
It's being offered for the truth of what the poll reports people knew.
MR. CIRESI: Then I object.
MR. BLEAKLEY: It's not being offered --
THE COURT: The objection is sustained.
MR. BLEAKLEY: All right, then I won't offer it for the truth of the poll, Your Honor.
THE COURT: Then it may be offered and received.
MR. BLEAKLEY: Fine. Thank you.
THE COURT: That's AG000 --
MR. BLEAKLEY: Yes, Your Honor.
THE COURT: -- 149?
MR. BLEAKLEY: Yes.
THE COURT: Okay.
BY MR. BLEAKLEY:
Q. And this Gallup poll question asked, "Have you heard or read anything recently to the effect that cigarette smoking may be a cause of cancer of the lung?" Is that correct, professor?
A. That is correct.
Q. It was answered and the response was 90 percent yes and 10 percent no?
*18 A. That's exactly it.
Q. So according to this poll, 90 percent of the people polled had heard or read anything recently to the effect that cigarette smoking may be a cause of cancer of the lung --
A. That's correct.
Q. -- as of 1954.
Now based on your education, training and experience as a historian and as a person who reviews polls as a normal part of historical analyses, does this figure of -- how does this figure of 90 percent compare to other polls that you have reviewed?
A. This is a phenomenally large figure, no question about that. Any polling figure that -- that goes above 70 percent is unusually large; 90 percent is fantastically large.
Q. Can you give us --
MR. CIRESI: Excuse me, counsel. Your Honor, there's no foundation for that.
THE COURT: I'll let the answer stand.
BY MR. BLEAKLEY:
Q. Can you give us some examples of polls that you have reviewed in the course of your career as a historian that -- by which the jury could compare this 90 percent figure with others that you've seen?
A. Yes, I have, there are a number of such polls that I have reviewed.
Q. Would you give us a couple of examples, please?
A. Yes. There -- there are polls that showed that a significant number of people had never heard of Watergate at the time that Watergate was taking place. There are a significant number of people that were unaware of who their senators were, who their representatives were. In fact, just recently the Minneapolis -- the Minnesota Poll told us that only 20 percent -- or was it 30 percent? -- of Minnesotans knew the name of both of their senators and -- today. That -- those are some examples of the kinds of -- of poll data that show low awareness that I came across.
Q. Let me ask you to turn to tab 57, if you would, which is Exhibit BYB000464.
A. I have it.
Q. This is testimony given by the Surgeon General of the United States, Surgeon General Burney, before Congress in 1957?
A. That is correct.
Q. Let me ask you this --
MR. BLEAKLEY: I'm sorry, did I give the exhibit number? 000 -- BYB000464.
MR. CIRESI: Yes, you did. Thank you.
BY MR. BLEAKLEY:
Q. Is this transcript of this testimony one of the sources of -- one of the sources of information that you came up with during the course of your research in this case?
A. Yes, it is.
Q. And is the review of hearings like this before the Congress the kind of thing that historians normally rely upon when they're doing historical analyses?
A. Very much so.
Q. And does it form a part of the basis for your opinions in this case?
A. It did.
MR. BLEAKLEY: Your Honor, we move the admission of BYB000464.
MR. CIRESI: Pursuant to a government document?
MR. BLEAKLEY: Yes.
MR. CIRESI: Okay. And do you have the entire transcript there?
MR. BLEAKLEY: I think the entire transcript is in the exhibit.
Yes, it is.
MR. CIRESI: Okay. No objection then, Your Honor.
*19 THE COURT: Court will receive -- court will receive BYB000464.
BY MR. BLEAKLEY:
Q. Now would you turn to Exhibit 56, which is a demonstrative Exhibit X1238. Which is an excerpt from the testimony of Surgeon General LeRoy Burney from the transcript that has been received in evidence as Exhibit BYB000464; is that correct?
A. That's correct.
MR. BLEAKLEY: And Your Honor, we would move the admission for illustrative purposes only of demonstrative Exhibit X1238.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X1238 for demonstrative -- illustrative purposes.
BY MR. BLEAKLEY:
Q. And Surgeon General Burney is --
The statement of Surgeon General Burney is quoted here as saying, "I would agree with Dr. Heller that our position at this time, I think, relative to this whole matter, is that there is a lot that is unknown in this area. It is a controversial area, in which some well-known scientists have opinions which differ from those -- from some of the other people whom you have heard in these hearings." Correct?
A. That's correct.
Q. And Surgeon General Burney went on to say that, "Our position," that is the position of the Surgeon General, "is that we have informed the public through the excellent coverage of the press, radio and TV. We have informed the official health agencies of the States who are responsible for this area, and we have informed the American Medical Association, recognizing that many people will go to their own physicians for advice."
A. That's correct.
Q. And he goes on to say, "We believe that is as far as we should go at this time until and when we have additional information;" is that correct?
A. That's correct.
Q. And Surgeon General Burney was talking about smoking and health; was he not?
A. He was.
May I point out that this was before a committee that was -- subcommittee that was chaired by -- by Congressman Blatnik, who was from the 8th District of Minnesota, and therefore that kind of a committee would get probably a little bit more coverage in Minnesota than it would somewhere else.
MR. CIRESI: Well excuse me, Your Honor, there's no foundation for that statement.
THE COURT: Well it's certainly not responsive to the question.
BY MR. BLEAKLEY:
Q. Now the third period into which you divided your research and are dividing your testimony here is the period beginning approximately with the 1964 Surgeon General's report and going forward; is that right?
A. That is correct.
Q. So we're talking about 1964.
A. Yes.
Q. Now what is it about this period of time that distinguishes it in your mind from the two previous periods?
A. This period of time, starting in 1964, for all practical purposes, ended the debate over the issue of smoking and health. The Surgeon General's report, first Surgeon General's report, the Advisory Committee report of 1964 I think closed the debate for most scientists, most scientific observers, and in fact led to an explosion, really, of information that was disseminated to the public regarding the relationship between smoking and health.
*20 Q. Was the 1964 Surgeon General's report itself widely reported in the public press?
A. Very widely reported.
Q. Did it appear as a headline story in many newspapers throughout the United States?
A. Very much so.
Q. Did reports on the 1964 Surgeon General's report appear in Minnesota newspapers?
A. Yes, they did.
Q. Did it appear as headlines in Minnesota newspapers?
A. Very much. In headlines in every one of the Minnesota newspapers I have seen.
Q. Did it appear in national magazines?
A. Yes, it did.
Q. Would you turn to tab 68 for a moment, please.
A. Sixty-eight did you say?
Q. Sixty-eight, which is Exhibit BYB000005A.
A. Uh-huh, I have it.
Q. This is a headline article from the Minneapolis Sunday Tribune dated January 12, 1964?
A. That is correct.
Q. Is that correct?
MR. BLEAKLEY: Your Honor, we would move the admission of this article on the same basis that we have prior newspaper articles and magazine articles.
THE COURT: I have BYB000050A. Is that the same?
MR. BLEAKLEY: Did I misspeak? I'm sorry.
THE COURT: You didn't add the last zero, which is easy to understand.
MR. BLEAKLEY: I have that problem. You're right, that's the exhibit number.
THE COURT: Is that the right number?
MR. BLEAKLEY: 000050A.
THE COURT: Okay.
MR. CIRESI: This is being offered on the same basis?
MR. BLEAKLEY: Yes.
MR. CIRESI: No objection then.
THE COURT: Court will receive BYB000050A.
BY MR. BLEAKLEY:
Q. Now this article appeared on -- in the -- in the Sunday edition of the Tribune; --
A. Yes.
Q. -- right? And it appeared on January 12th, 1964?
A. That is correct.
Q. And when was the Surgeon General's report released?
A. The Surgeon General's report was -- was released the day before, on Saturday, January 11th, 1954.
Q. And this --
A. '64, sorry.
Q. Sorry.
A. '64. I misspoke.
Q. And this is the headline article in the newspaper that day; correct?
A. Yes. Yes.
Q. I note that there is an article on the side of this page under the heading "SIDELIGHTS" which says, "Tobacco Group Urges Research."
A. I see it.
Q. And this is a report of The Tobacco Institute about the Surgeon General's report?
A. That is correct.
Q. Urging more research; is that right?
A. Yes, that is correct.
Q. But the headline of the article is "Report Harshly Indicts Cigarette Smoking. Government Action Urged;" right?
A. That's correct.
Q. Now would you turn to tab 69, please, which is the front page of the St. Paul Sunday Pioneer Press dated January 12, 1964, the same date as the Minneapolis headline, and that's Exhibit BYB000122A. Do you have that in front of you?
A. I have it in front of me, yes, sir.
Q. And --
Well I guess you could argue about whether it's the headline article, but certainly a front-page article entitled "TERMED CANCER CAUSE, Government Action Urged on Cigarets," that appeared on the front page; is that right?
*21 A. That's correct.
MR. BLEAKLEY: Your Honor, we would move BYB000122A on the same basis as prior articles of this sort.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive BYB000122A.
BY MR. BLEAKLEY:
Q. And can you highlight the section or bring it up? Yes.
Now there's a table there -- or a chart there, a bar chart - -
A. Uh-huh.
Q. -- which is entitled "MORTALITY RATIOS, TOTAL DEATHS, AGE 40 to 69;" is that correct?
A. That's correct.
Q. And this is on the front page of the St. Paul Sunday paper.
A. Yes.
Q. The day after the Surgeon General's report; --
A. Yes.
Q. -- right?
Did articles, headline articles like this appear in other newspapers throughout Minnesota?
A. Yes.
Q. And throughout the United States?
A. Throughout the United States and throughout Minnesota.
Q. Would you turn to tab 74, please.
MR. CIRESI: Your Honor, before we move on, counsel, can you admit the entire article? You only admitted part, I think, under --
MR. BLEAKLEY: I meant to admit the entire article.
MR. CIRESI: All right.
MR. BLEAKLEY: And we will.
MR. CIRESI: The entire article is 000122.
MR. BLEAKLEY: That's fine, Your Honor.
THE COURT: All right. Court will receive BYB000122.
BY MR. BLEAKLEY:
Q. Okay. Would you turn to tab 74.
A. Yes, I have.
Q. Tab 74 is a page from the January 18, 1964 Minneapolis Star; is that right?
A. That is correct.
Q. It's BYB000169. It's actually an excerpt from the sports section of the Minneapolis Star; isn't it?
A. That is correct. That's the sports section.
MR. BLEAKLEY: Your Honor, we would move the admission of this article, 000169, on the same basis as the prior newspaper articles.
MR. CIRESI: No objection on that basis, Your Honor.
THE COURT: Court will receive BYB000169.
BY MR. BLEAKLEY:
Q. Do you want to highlight the bottom? There we are.
This little article is entitled "PALMER CUTS CIGARETTES."
A. Yes.
Q. It reads, "Arnold Palmer, once golf's best chain smoker, is down to less than a pack a day and is thinking seriously of quitting.
"Like many Americans, Palmer is reassessing his cigarette habits in the wake of the U.S. Surgeon General's report linking smoking with lung cancer and other diseases." Correct?
A. That is correct.
Q. And this was being reported in the Minneapolis Star sports section shortly after the issuance of the Surgeon General's report.
A. Yes.
Q. And Arnold Palmer was a pretty well-known sports figure at the time; wasn't he?
A. Very well-known sports figure.
Q. Still is.
A. He still is.
Q. Now did the reporting of -- and on -- strike that. Was the --
Were the results of the 1964 Surgeon General's report covered by national television and radio as well?
A. Very much so. Yes.
Q. And was it covered by television stations and radio stations in the state of Minnesota?
*22 A. Yes, they were.
Q. And did that continue, that coverage of the 1964 Surgeon General's report, continue into the period after 1964?
A. Yes.
Q. Now have you, in the course of your research in this case, had an opportunity to review any polls that reflect changes in the awareness and perceptions of the public about the health risks of smoking during this period?
A. Yes, I have.
Q. Excuse me a moment.
A. Sure.
Q. I'm going to go back for just a second to tab sixty -- ask you to go back to tab 65, which is Exhibit LA009433 --
A. Uh-huh.
Q. -- from the January 24, 1964 issue of Life Magazine.
A. Yes.
Q. We've already established that Life Magazine was one of the major national news magazines of this period; is that correct?
A. Yes.
Q. And widely read by people in Minnesota --
A. Yes.
Q. -- as elsewhere.
A. Uh-huh.
Q. And there's an article in this issue of Life Magazine entitled "Verdict on Cigarets: Guilty as Charged;" is that right?
A. That's correct.
MR. BLEAKLEY: We would move the admission of this article, the front page and this article from Life Magazine, 009433, on the same basis that we have offered other such articles.
MR. CIRESI: Your Honor, the only request we would have is that it be a legible copy. The one that was provided for us is not legible at all, except for one page.
THE COURT: Mine isn't either. I can't read it at all.
MR. BLEAKLEY: We'll try to get --
THE COURT: Do you have another one?
MR. BLEAKLEY: I'm not sure we have a better one here, but we'll try to get a better one and make sure that that's the one that is entered into the record.
MR. CIRESI: If there's not a legible, complete copy, we'd object to the admission.
THE COURT: If you can try and get us all a legible copy.
MR. BLEAKLEY: We will do our --
We have the actual magazine, which we can try to make better copies of. It's sort of a historical document; I hate to lose it for good. But we'll do the best we can to make it --
THE COURT: Well if necessary, you'll have to introduce the magazine itself, and then --
MR. BLEAKLEY: And then we can substitute it later.
THE COURT: And then if we can't get a legible copy -- I don't want to put in copies that nobody can read.
MR. BLEAKLEY: We'll do that, Your Honor.
THE COURT: Okay.
MR. BLEAKLEY: We'll either enter this in --
If we can't get a better copy, then we'll enter this --
THE COURT: All right.
MR. BLEAKLEY: -- and get it back later.
BY MR. BLEAKLEY:
Q. Would you put the second page of the exhibit up on the screen. There we got both of them, okay.
And this article is entitled "Verdict on Cigarets: Guilty as Charged." And who's the gentleman in the picture there?
A. Sorry?
Q. Who's the gentleman in the picture?
A. Who -- oh.
Q. Who's the gentlemen in the picture?
A. Oh, that's the Surgeon General, Surgeon General Terry.
*23 Q. And he's holding a copy of the Surgeon General's report in his hand there?
A. That --
The picture shows that, yes.
Q. Okay. Now if you would turn back to tab 87.
A. Yes.
Q. I asked you whether or not you had found any polls that reflected the awareness of people about the health hazards of smoking in the wake of the Surgeon General's report; is that correct?
A. That is correct.
Q. And what has been marked as Exhibit BYB000196A is a poll, a Minnesota Poll; is that correct, reported in the Minneapolis Star Tribune?
A. That is correct.
Q. And what is the date on that?
A. May 4th, 1970.
Q. That's six years, roughly, after the issuance of the 1964 Surgeon General's report?
A. That's correct.
Q. And is this a -- this Minnesota Poll a poll that you found in the course of your research in this case?
A. Yes, it is.
Q. And is the Minnesota Poll the kind of poll that historians like yourself rely on when you're doing historical analyses?
A. Yes.
Q. And does it form part of the basis for your opinions in this matter?
A. Yes.
MR. BLEAKLEY: Your Honor, we would move the admission of BYB000196A on the same basis that prior polls were admitted.
MR. CIRESI: It's not -- not for the truth or falsity; correct?
MR. BLEAKLEY: Right.
MR. CIRESI: All right. No objection, Your Honor.
THE COURT: My copy does not reflect the number. Does the exhibit that's being introduced show it?
MR. BLEAKLEY: All of ours have part of the number missing, but we'll make sure that the --
THE COURT: I am concerned about the exhibit that will be introduced, to make sure that the number is complete.
MR. BLEAKLEY: Actually we have another copy which has been marked as BYB000196, which is the same, and it is more legible and does have the number on it.
THE COURT: Okay.
MR. CIRESI: We have no objection to that substitution, Your Honor.
THE COURT: All right.
MR. BLEAKLEY: Unfortunately, a lot of these old newspaper articles are very hard to reproduce in a way that you can read them.
BY MR. BLEAKLEY:
Q. And what is reported about the awareness of smokers in this poll, professor?
A. Yes, it does.
Q. What -- what is reported?
A. The report is that --
The question that was asked is "From what you have heard and read, is it your impression that cigarette smoking is or is not a health hazard?" That was the -- the polling question.
The response was 95 percent said yes, four percent no, and one percent didn't know.
Q. So 95 percent of the people polled in this poll -- And this was of Minnesotans; is that right?
A. That is correct.
Q. Ninety-five percent of the people polled had the impression that cigarette smoking is a health hazard, --
A. Yes.
Q. -- according to this poll; is that right?
A. Yes.
Q. Did you find any other polls during this period reported in the Minneapolis newspapers?
*24 A. Yes.
Q. Let me ask you this: Is 95 percent a significant number to a historian in a poll?
A. For a historian, 95 percent is virtual unanimity.
Q. Well there are a small percentage of people who disagree.
A. Yes.
Q. What about that four percent?
A. There's always a small percentage that disagree with everything.
Q. In your career as a professional historian, have you ever seen a hundred percent of the people polled --
A. Never.
Q. -- or unanimity on anything?
A. Never. And very seldom 95 percent.
Q. Now did Minnesota newspapers continue to report on smoking-and- health issues after 1964, after the Surgeon General's report?
A. Yes, they did.
Q. We saw reported in these polls, of course, in 1970.
Did stories about smoking and health continue to appear in the 1970s and 1980s?
A. Continuously and voluminously.
Q. Let me ask you to turn as an example to tab 91, which is Exhibit BYB000160A.
A. Ninety-one. Let me get it. Turn this around.
Yes, I have it.
Q. And it contains an article from the Minneapolis Star & Tribune dated November 23, 1984.
A. That's correct.
Q. Right?
Twenty years after the Surgeon General's report.
A. Yes.
Q. Is this an example of the kind of newspaper article that continued to appear in Minnesota newspapers through the '70s and 1980s?
A. Yes.
Q. And you found that in the course of your research?
A. Yes.
MR. BLEAKLEY: Your Honor, we would move the admission of BYB00016A -- 160A. Let me start that over again -- BYB000160A, on the same basis that we have offered prior newspaper articles.
MR. CIRESI: It's incomplete, Your Honor.
THE COURT: Do you have a complete copy of the article?
MR. BLEAKLEY: I'm sure we do.
MR. CIRESI: I think if you go to 160, you'd have the complete -- BYB000160.
THE COURT: Do you want to introduce both of them?
MR. BLEAKLEY: Yes, Your Honor.
THE COURT: Okay.
MR. BLEAKLEY: BYB000160. We'll just introduce 160.
MR. CIRESI: Okay. On the same basis then?
MR. BLEAKLEY: Yes.
MR. CIRESI: No objection, Your Honor.
THE COURT: All right. Court will receive BYB000160.
(Juror coughs repeatedly.)
MR. BLEAKLEY: Your Honor want to take a moment for the juror coughing? Do you want to get some water or something?
THE COURT: Go ahead.
MR. BLEAKLEY: Okay.
BY MR. BLEAKLEY:
Q. Can you focus on the article on the left there. This article is entitled "Nicotine called deadliest of addictive substances."
A. Yes.
Q. That appeared in the Minneapolis Star Tribune -- Star and Tribune then -- in 1984; is that right?
A. That's correct.
Q. Would you turn to tab 92, please.
A. Yes.
Q. This is an article from --
MR. BLEAKLEY: What newspaper is that?
MR. CIRESI: May we have a number?
MR. BLEAKLEY: BYB000390.
I can't tell which newspaper it's from. I'm sorry. Mine doesn't say that.
*25 Q. From the Duluth News Tribune dated May 17, 1988.
A. That's correct.
Q. And did you find this article in the course of your research?
A. Yes.
MR. BLEAKLEY: Your Honor, we would move the admission of BYB000390 on the same basis that we've admitted -- moved other exhibits.
MR. CIRESI: Do you have a complete copy?
MR. BLEAKLEY: This is a complete copy.
MR. CIRESI: No objection then, Your Honor.
THE COURT: Can you help me? I don't see where it's from the Duluth paper.
MR. BLEAKLEY: It's written in by hand, Your Honor, just above the headline of the article, it says "DNT, May 17, 1988."
THE COURT: That means Duluth?
MR. BLEAKLEY: Duluth --
THE COURT: Okay.
MR. CIRESI: The Duluth -- Duluth NEWS.
THE COURT: All right. All right, court will receive BYB000390. That's a two-page document.
BY MR. BLEAKLEY:
Q. And the title of this article is "Tobacco declared addictive." Is that right?
A. That's correct.
Q. And the person gesturing in the photo there is Surgeon General C. Everett Koop?
A. That is correct.
Q. Then the Surgeon General of the United States; is that right?
A. He was then Surgeon General, yes.
Q. Now is this reporting on one of the Surgeon General's reports?
A. Pardon me?
Q. Is this reporting on one of the Surgeon General's reports?
A. Yes, it is.
Q. And were these Surgeon General -- this Surgeon General's report widely reported in the press in Minnesota and throughout the United States?
A. Yes, it was.
Q. Would you turn to tab 93.
A. I have it.
Q. This is an article from the Minneapolis Star dated December 16, 1976, Exhibit number BYB000070. The article is entitled "Studies show 4 cigarettes a day increase death risk;" is that correct?
A. That is correct.
Q. And is this an article that you found in your research?
A. Pardon me?
Yes, it is.
MR. BLEAKLEY: We would move the admission of Exhibit BYB000070 on the same basis as prior newspaper articles, Your Honor.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive BYB000070.
BY MR. BLEAKLEY:
Q. And the substance of this article is four cigarettes a day increases death risk; is that correct?
A. That is correct.
Q. And down in the lower left-hand corner of the exhibit shows a photograph of a person smoking there?
A. Uh-huh.
Q. And then it gives the disease mortality for a variety of diseases?
A. Yes.
Q. And according to the number of cigarettes smoked a day; is that correct?
A. That is correct.
Q. And this was reported in the Minneapolis Star in 1976, 22 years ago.
A. Yes.
Q. Now are these articles that I've been showing you here representative of other newspaper articles that appeared in newspapers in the state of Minnesota and throughout the United States during this period?
A. Yes, they are.
Q. And in news magazines in the United States that -- including ones that were read by the people of Minnesota?
*26 A. Yes.
Q. The depositions of a number of Medicaid recipients in Minnesota were taken in this case. Did you have an opportunity to review those?
A. I have, yes.
Q. Did you find any evidence in those -- reading of those depositions concerning the awareness of those particular people about the health risks of smoking?
A. Yes, I did.
Q. And what did you find?
A. I found a number of them used, in fact, the -- the slang expression "coffin nails" to depict cigarettes, which to me indicates, of course, an awareness of the -- of the health risks of smoking. Others were more explicit than that.
Q. What do you mean "more explicit than that?"
A. Well stated directly that they knew that smoking caused diseases.
Q. Now we've been talking up to this point in time, Professor Berman, about public awareness during three historical periods, the period basically prior to 1950, period from about 1950 to about the Surgeon General's report of 1964, and the period subsequent to the Surgeon General's report.
A. Yes.
Q. Right?
You also said at the beginning of your testimony yesterday that you were going to testify about state of Minnesota awareness of the health risks of smoking and the role the state played in public awareness; correct?
A. Yes.
Q. Let's turn now to the state of Minnesota and its awareness and the role it played in public awareness.
When we talk about the state of Minnesota -- or when you talk about the state of Minnesota, what do you mean?
A. The state of Minnesota is, of course, the governmental agencies of the state, the legislative, the executive and judicial branches, and all of the agencies that answer to these branches. For the purposes of our discussion here and my research, it's essentially the legislative and executive branch. The judicial branch didn't play a significant role in this particular issue.
Q. Okay. So we're talking about the Minnesota legislature --
A. Yes.
Q. -- and laws they passed or didn't pass?
A. Right.
Q. And we're talking about agencies of the state of Minnesota; is that right?
A. That's correct.
Q. Would that include the Department of Education?
A. It would.
Q. And the Department of Health?
A. It would.
Q. Such organizations?
So when you refer to the state of Minnesota, you're referring collectively to all of those.
A. Yes.
Q. Now before we take up individual items, can you summarize for us what role the state of Minnesota has played in the education of the public about the health risks of smoking?
MR. CIRESI: Your Honor, I'm going to object to any statement at this point without any foundation as to what he's relying on.
THE COURT: Sustained.
MR. BLEAKLEY: All right.
BY MR. BLEAKLEY:
Q. Let's go back to --
When did Minnesota become a state?
A. 1858.
Q. What is the first point in time that you found awareness on the part of any state organization or agency about the potential health hazards of smoking?
*27 A. Since statehood, 1859.
Q. And what -- what did you find?
A. In 1859 the Minnesota state House of Representatives, the lower house of the legislature, passed a resolution prohibiting the smoking of -- smoking on the -- on the House floor.
Q. And this was in the House; is that right?
A. Pardon?
Q. This was in the House?
A. In the House of Representatives, yes.
Q. Did there come a time when the Senate took up a similar - -
A. Senate took a little longer. Senate always takes a little longer. But the Senate -- Senate finally passed such a resolution some -- some 30 years later.
Q. Now have you divided up your research and your report on the awareness of the state about the health hazards of smoking into time periods like you did for the public?
A. It follows the same time periods. After all, the public constitutes the state and the state constitutes the public. In other words, the state is not an inert entity, it's made up of people, and the people who make up the state government are in fact the public, part of the public. So there is in fact no difference in terms of the timeframe, periodization, and in the view of public awareness or state awareness, et cetera, yes.
Q. So you divided them up on the same -- same time periods; that is, --
A. Yes.
Q. -- pre-1950, 1950 to about 1964, 1964 forward.
A. That is correct.
Q. Is that right?
All right. Well let's talk first about that period prior to 1950. You said that the Senate and the House passed resolutions dealing with smoking there when they were deliberating.
A. Yes.
Q. And did you find any evidence in your research about what if anything the state of Minnesota was doing in educating the people of Minnesota about the health hazards of smoking during the period prior to 1950?
A. Yes, I did.
Q. And when did you first see evidence that the state of Minnesota was educating its citizens or its students about the potential health hazards of smoking?
A. In 1887 the state legislature passed a bill mandating that the Department of Education set up a curriculum guideline for the teaching of health matters with a particular reference on addictive -- or narcotics is I think is the word they used, the narcotics in the schools of the state.
Q. Can I ask you now to turn to tab one in the second set of books that you have there, --
A. Yes.
Q. -- which is exhibit number CSP000022. And it is an excerpt from the general statutes of the state of Minnesota in force January 1, 1889.
A. That's correct.
Q. Is that correct?
A. That's correct.
Q. And is this statute one of the sources, one of the materials that you found in the course of your research?
A. Yes, it is.
Q. And are statutes such as this the kind of documents upon which historians like yourself rely when they do historical analyses?
A. Yes, it is.
Q. And does this document form a part of the basis for your opinions in this case?
*28 A. Yes.
MR. BLEAKLEY: Your Honor, at this time we move the admission of CSP000022.
MR. CIRESI: This document itself is irrelevant, Your Honor. There's no reference to the subject matter of cigarettes.
MR. BLEAKLEY: I -- I will link it up, Your Honor.
THE COURT: Well the copy I have doesn't even have a number on it. I have a little problem with that.
MR. BLEAKLEY: Well I don't blame you for that, Your Honor. It should. We'll get one that has a -- an exhibit number on it.
THE COURT: I'll allow a motion to strike if you fail to tie it up.
MR. BLEAKLEY: I have one here that does have the number on it. We'll make sure that's the one that's entered.
THE COURT: Thank you.
BY MR. BLEAKLEY:
Q. All right. And this statute, the Minnesota statute requires mandatory instruction about narcotics in Minnesota schools; is that right?
A. That's correct.
Q. Now how do we know whether this applies to tobacco?
A. Well very simply, we can go and look at the -- the guidelines that the state Department of Health -- state Department -- I'm sorry, state Department of Education did in fact apply, and what the sources they used in order to set up what they were -- what they said were the curriculum guidelines should be used in the schools of the state.
Q. Okay. Would you turn to tab two, please.
MR. CIRESI: Can we have a number, counsel.
MR. BLEAKLEY: I'm sorry, it is Exhibit BYB000246.
Q. Which is a document entitled "Concerning Narcotics."
A. Yes.
Q. Now is this one of the educational materials that was used in the schools in Minnesota pursuant to the statute that was referred to in Exhibit CSP000022?
A. Yes.
Q. And is this a document that you found in the course of your research in this matter?
A. Yes.
Q. And relied upon as part of the basis for your opinions in this case?
A. Yes.
MR. BLEAKLEY: Your Honor, we move the admission of BYB000246.
MR. CIRESI: No foundation as to where it was used, what school districts it was used, Your Honor.
THE COURT: Okay. Can you lay some more foundation for that?
MR. BLEAKLEY: All right.
BY MR. BLEAKLEY:
Q. What did you find in this document concerning the use of the word "narcotics" in Minnesota schools?
A. The document shows that the tobacco was the second state -- the second stated narcotic in the list of narcotics that Dr. Sperry listed in this document.
Q. Okay. And that's on page -- again we have a very poor copy here, but it's the page that begins --
A. That's on page --
Q. -- "CONCERNING NARCOTICS" by L. B. Sperry --
A. -- page five actually.
Q. Page 85?
A. No, five.
Q. Five?
A. Page five. There's no page number there, but it is page five.
Q. Okay. And it's a page that reads "CONCERNING NARCOTICS" by L. B. Sperry, M.D.; is that right?
A. Yes.
Q. And does it say "The following named narcotic drugs are the best known and commonly -- most commonly used at the present time?"
*29 A. Uh-huh.
Q. And it lists several there, opium, tobacco --
A. Yes.
Q. -- on that page?
Now how do you know that this document was used in the state's curriculum guides?
A. Well because Dr. Sperry was widely known, a respected member of the faculty of Carleton, and was in fact consulted by the Department of Education when it set up the guidelines. And then we look at the guidelines themselves and see what in fact it included or not included.
Q. And have you found other curriculums or textbooks that used -- defined the term "narcotic" to include tobacco?
A. Yes.
MR. BLEAKLEY: Your Honor, we move the admission of Exhibit - -
MR. CIRESI: Your Honor, there was still no foundation.
MR. BLEAKLEY: -- 000246.
MR. CIRESI: Still no foundation. The school districts themselves would decide whether to utilize it or not, and there's no foundation from this witness.
THE COURT: I'm having a little trouble with this, counsel. Can you lay some foundation as to where this document was used or what --
MR. BLEAKLEY: I'll ask him --
THE COURT: Lay some more foundation.
MR. BLEAKLEY: I'll ask the witness that.
BY MR. BLEAKLEY:
Q. How do we know that this was actually used in the schools?
A. Pardon me?
Q. How do we know that this was actually used in the schools?
A. How do we know --
Q. Yes.
A. -- that it was used?
Q. Yes.
A. Very simply. We look at not only the guidelines set up by state Department of Education, but we look at sample curriculum -- curricula that were developed by different schools and school districts throughout Minnesota in this time period.
Q. Would this include, for example, the Minneapolis Public Schools?
A. It certainly would include the Minneapolis Public Schools.
Q. Okay. Would you turn to tab three and Exhibit BYB000297A, which is a document entitled "COURSE OF STUDY, MINNEAPOLIS PUBLIC SCHOOLS, 1893-4."
A. That is correct.
Q. And this is a curriculum guide for the Minneapolis Public Schools --
A. Yes.
Q. -- in 1893 and '94; is that right?
A. Yes.
Q. And is this a document that you found in the course of your research in this matter?
A. Yes, it is.
Q. And is this the kind of document that historians like yourself normally used in -- in historical analyses?
A. Yes.
Q. And does it form a part of the basis for your opinions in this case?
A. Yes.
MR. BLEAKLEY: Your Honor, we'd move the admission of Exhibit BYB000297, and we move the admission, further, of the previous documents with this as support for the fact that it was actually used in schools during this period of time; that is, Exhibits 000246 and 000022.
MR. CIRESI: Your Honor, we have no objection to it as limited to the Minneapolis school district, since they're not mandatory.
THE COURT: The court will receive BYB00027 -- 297. And I have 297A, is that --
MR. BLEAKLEY: 297A is correct.
*30 THE COURT: All right. That will be received into evidence.
BY MR. BLEAKLEY:
Q. And the -- whether or not -- strike that.
Did you find any other textbooks that were actually used by Minnesota public schools during this period of time that talked about the health risks of smoking, including -- strike that -- health risks of smoking?
A. Yes.
Q. Would you turn to tab five in your book, please.
MR. CIRESI: May we have a number, please?
MR. BLEAKLEY: I'm sorry, BYB000026A.
Q. This is a book entitled "THE HUMAN BODY AND HEALTH, A TEXT-BOOK OF ESSENTIAL ANATOMY, APPLIED PSYCHOLOGY, AND PRACTICL HYGIENE," 1908, written by one Alvin Davison; is that right?
A. That is correct.
Q. And is this a textbook that you found in the course of your research in this case?
A. Yes.
Q. And textbooks are the kind of thing that historians use in historical analyses?
A. Yes, they are.
Q. And does it form part of the basis for your opinions --
A. Yes.
Q. -- in this case?
MR. BLEAKLEY: Your Honor, we move the admission of BYB000026A.
MR. CIRESI: No foundation as to where it was used or if it was used at all, Your Honor.
THE COURT: I'm not sure I understand what the purpose of the introduction is. Just to show that somebody wrote a textbook, or are we demonstrating that this was used in some manner?
MR. BLEAKLEY: No, that there were textbooks used in the Minnesota public schools in the 19th century that talked about the health risks of smoking, including addiction.
THE COURT: Then you'll have to lay a foundation for that.
MR. BLEAKLEY: All right.
BY MR. BLEAKLEY:
Q. How do we know that this textbook was used in the Minnesota public schools?
A. The state of Minnesota does not have what we call designated textbooks, but what they do is have a list of approved textbooks that school districts are in fact free to choose. This book was on such a list.
Q. Okay. Do you know whether this was -- this particular book was in fact used in any Minnesota public schools in 18 -- in - - prior to 1900?
A. It was used in the Minneapolis school system in -- at that time frame, yes.
Q. And in any event --
A. There may have been others as well, but I know Minneapolis.
Q. In any event, it was a textbook approved by the state --
A. Yes.
Q. -- Department of Education or its predecessor at the time; right?
A. Yes.
MR. BLEAKLEY: So we would move the admission of BYB000026A on the grounds that it was an approved textbook by the state of Minnesota, whether or not it was used, actually used in any schools other of Minneapolis, on the question of notice and state awareness, Your Honor.
MR. CIRESI: Your Honor, I have no objection on that basis if the professor could tell us how he knows it was used in Minneapolis.
THE COURT: Yeah. I think we'd be interested in knowing how you know that.
THE WITNESS: There's references to this book in some of the Minneapolis curriculum guidelines.
*31 THE COURT: Do we have that available?
THE WITNESS: Pardon me?
THE COURT: Do we have that available? Is that going to be introduced?
MR. BLEAKLEY: I'm not sure whether that specific one is going to be introduced or not, but I will check that as I go through my outline here.
THE COURT: Okay. I'll receive it provisionally, but that will have to be tied up --
MR. BLEAKLEY: I understand.
THE COURT: -- if you're going to be introducing it and reference that it was used in fact in Minneapolis.
MR. BLEAKLEY: I understand.
BY MR. BLEAKLEY:
Q. Now let me turn your attention to tab seven, BYB000027A, which is a book entitled "GRADED LESSONS IN PHYSIOLOGY AND HYGIENE," dated 1912.
A. Yes.
Q. This was a state-approved textbook; is that correct?
A. Yes.
Q. And did you find this in the course of your research in this case?
A. Yes.
Q. And you rely on it as a part of the basis for your opinions in this case?
A. Yes.
MR. BLEAKLEY: I move the admission of Exhibit 000027A.
MR. CIRESI: Same objections as to foundation, Your Honor, we don't know whether it was approved. There's a list of books; part may be used, part not may be used. There's no foundation as to if it was used, and if so, where.
MR. BLEAKLEY: Your Honor, whether or not it was actually used, it was a state-approved textbook, and the purpose for which it is being offered is to demonstrate that the state of Minnesota had awareness about the health hazards of smoking in the 19th century. Whether or not it was actually used --
I'm not going to represent that it was used unless I specifically ask the witness to do that.
THE COURT: All right. So you're introducing it for the limited purpose of showing that this was on the list of the state of approved textbooks.
MR. BLEAKLEY: Of state-approved textbooks.
THE COURT: All right. I'll receive it, then, on that basis.
BY MR. BLEAKLEY:
Q. Now would you turn to page 63 in this book, Your Honor -- I mean Mr. -- Professor Berman.
A. That's okay.
MR. BLEAKLEY: Your Honor can turn to it if he wants to.
THE WITNESS: You can call me Your Honor, that's okay.
THE COURT: No, it's not.
(Laughter.)
A. Yes, I have page 63 in front of me.
Q. You have page 63 in front of you?
A. Yes.
Q. Page 63 contains an excerpt from a chapter that talks about tobacco use; doesn't it?
A. That's correct.
Q. In fact, if you turn back to page 60 of the book, if you would for a moment, there's a section entitled "Tobacco Intemperance" --
A. Yes.
Q. -- which reads, "Tobacco is especially injurious to the young."
A. Yes.
Q. And then on the next page, on page 61, is a section entitled "Effect of Tobacco on the Young?"
A. Yes.
Q. Is that correct?
On page 62 is a section entitled "The Cigarette Evil."
A. Yes.
Q. And then on page 63 appears the following: "From 88 schools, 2,402 pupils were reported as addicted to the cigarette habit...;" is that correct?
*32 A. That's what it says, yes.
Q. And this is a textbook that the state of Minnesota approved in the period before 1900; correct?
A. That's correct.
MR. CIRESI: Your Honor, that's a mischaracterization since this is not referring to something in Minneapolis, it's referring to something in Chicago.
THE COURT: I think you should re-ask the question, counsel.
Q. The question I asked was whether this was a textbook approved by the state of Minnesota for use in Minnesota schools. Is that correct?
A. That's correct.
MR. BLEAKLEY: It may be reported on --
THE COURT: And the next question?
MR. BLEAKLEY: I'm sorry, I'm confused.
THE COURT: I thought you asked another question.
Q. Would you turn over to page 221 of this exhibit.
A. I have it in front of me.
Q. And there appears a sentence in the middle of that page, it reads, "'Tobacco heart' is a form of heart disease that results from excessive and habitual use of this narcotic." Is that correct?
A. So it states, yes.
Q. Did you find other textbooks and curriculum guides that were approved by the state of Minnesota during the period around -- before and just after 1900, dealing with smoking-and-health issues?
A. Yes, I have.
Q. And are these that I've shown you representative of those kinds of textbooks?
A. These are typical and representative, yes.
Q. Now when we move into the 20th century, did the state of Minnesota prepare approved textbooks and curriculum guides for state schools dealing with the health risks of smoking?
A. It continued this practice throughout the period, yes.
Q. Would you turn your attention to tab nine in your book, which is a document entitled "State of Minnesota, Department of Education, CURRICULUM, Elementary Schools, June 1928."
A. I have it in front of me.
MR. CIRESI: May we have an exhibit number?
MR. BLEAKLEY: Exhibit number BYB000308.
Q. Do you have that in front of you?
A. I have it in front of me, yes.
Q. Now is this a curriculum guide that you found in the course of your research?
A. Yes, it is.
Q. And you relied on it as a part of the basis for your opinions in this case?
A. Yes.
MR. BLEAKLEY: Your Honor, we move the admission of BYB000308.
MR. CIRESI: That's not the complete curriculum. Again we don't know what it's being offered for, Your Honor. I believe the complete document is BYB000308A.
MR. BLEAKLEY: We'll offer the complete document. The complete document does not deal with smoking-and-health issues, but we'll offer the entire document.
MR. CIRESI: Well --
THE COURT: All right. Court will receive BYB000308A.
BY MR. BLEAKLEY:
Q. And this was a curriculum guide prepared by the state of Minnesota for use in elementary schools; is that correct?
A. Yes.
Q. Would you turn to page --
MR. CIRESI: Excuse me, Mr. Bleakley, I'm sorry. But Your Honor, again, this is being entered just to show that it was on the approved curriculum and --
*33 I assumed that was how you were entering it.
MR. BLEAKLEY: And recommended by the state of Minnesota for use in elementary schools.
MR. CIRESI: Okay.
MR. BLEAKLEY: I'm sorry, Your Honor, I was waiting for --
Oh, should we proceed?
THE COURT: Is there something pending?