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 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?

MR. BLEAKLEY: I moved the admission. I wasn't sure it was received.

THE COURT: Okay. I believe it was received.

MR. BLEAKLEY: I'm sorry.

THE COURT: If it isn't, it is now.

MR. BLEAKLEY: I apologize.

BY MR. BLEAKLEY:

Q. Would you turn to page 654 --

A. I have it in front of me.

Q. -- of this exhibit.

There's a section here entitled "Tobacco."

A. Yes.

Q. Do you see that?

A. I do.

Q. "Contains poison (Its use by growing boys and girls forces body to use energy to fight off poisons that go into work, play and thinking.)

"b. Harmful effect on body: Heart; nervous system; injuries delicate lining of nose, throat and lungs.

"Use is costly."

Do you see that?

A. Yes, I do.

Q. And this is the state recommending to elementary schools that they teach this in the elementary schools; is that right?

A. No, not recommend, mandate.

Q. Mandate.

A. Mandate.

Q. Required to teach.

Now did you see evidence in the course of your research that the schools during this period of time were in fact teaching their students about the potentially health risk -- potential health risks of smoking cigarettes?

A. Yes, I have.

Q. Can you give us some examples of the kind of evidence that you saw that the public schools were in fact teaching students about the health risks of smoking --

A. Yes.

Q. -- during this period?

A. Yes, I can. The curriculum guidelines that were developed by various different school districts, I was able to see some of those and to determine that in fact they were following, at least in their printed guidelines, the mandate of the Department of Education.

Q. Now were local schools then allowed to develop their own materials that they actually used in the course of teaching the students?

A. Yes, they were.

Q. And did they develop their own materials that talked about smoking and health?

A. Some did, yes.

Q. Some just used the state-mandated materials and others developed their own; is that right?

A. Exactly.

MR. CIRESI: May we have some non-leading questions? I'm going to object to the leading nature of this series of questions.

THE COURT: Let's move to non-leading questions now.

MR. BLEAKLEY: All right, Your Honor.

BY MR. BLEAKLEY:

Q. Would you turn to tab 13 in your book.

A. Yes, I do.

Q. This is a CT -- CSP000024, it's a document entitled "Resource File and THE STUDY OF ALCOHOL AND NARCOTICS," Minneapolis Public Schools, September 1949?

A. That's correct.

Q. Is this a document that you found in the course of your research in this case?

A. Yes, it is.

*34 Q. And this came from the Board of Education Library in Minneapolis; is that right?

A. That is correct.

Q. And is it --

Does it form a part of the basis for your opinions in this case?

A. Yes.

MR. BLEAKLEY: Your Honor, we move the admission of CSP000024.

MR. CIRESI: Again, Your Honor, a foundation as to what purpose?

BY MR. BLEAKLEY:

Q. Can you describe what -- I'm sorry.

THE COURT: I don't have that under tab 13.

MR. BLEAKLEY: You don't?

THE COURT: No.

MR. BLEAKLEY: Sorry about that.

THE COURT: Do you have a extra copy for me?

MR. BLEAKLEY: Yes, we have an extra copy.

May I approach, Your Honor? Sorry. It should be in there.

(Document handed to the court.)

THE COURT: I do have it, but I have it under a different number, that's my problem. I have it under BYT000166.

MR. BLEAKLEY: Okay, that's the entire document.

THE COURT: Okay.

THE COURT: So what is CSP000024? That's --

MR. BLEAKLEY: CSP000024 is the section of that book under Roman Numeral IV entitled "Tobacco."

THE COURT: No, that's not working.

MR. BLEAKLEY: I'm sorry, I have the numbers reversed.

THE COURT: Okay.

MR. BLEAKLEY: CSP000024 is the chapter.

THE COURT: And that's what's being introduced?

MR. BLEAKLEY: Yes.

MR. CIRESI: Well, and that's why I object to that. The whole document, the first page has an explanation that I think is essential, and I'd object to a portion of it, not the complete document, which we have, Your Honor. We pulled the full document out as CSP000024.

MR. BLEAKLEY: Well we'll introduce the entire document if that's what you want.

MR. CIRESI: And you have a different number.

THE COURT: Getting lost here. Maybe it's time for lunch anyway.

MR. BLEAKLEY: All right. We'll straighten it out during the lunch break.

THE COURT: Let's take a lunch break, and maybe by then we'll know what we're doing. Okay.

THE CLERK: Court stands in recess.

(Recess taken.)
 

*1 TITLE: 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 25, 1998

P.M. Session
 

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

AFTERNOON SESSION.
 

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.

Your Honor, before lunch we were talking about Exhibit CSP000024, the resource file and the study of alcohol and narcotics -- narcotics from the Minnesota public schools in September 1949. I apologize for the confusion over this document. It was always our intention to introduce the entire document, including the cover page. The document that we provided to plaintiffs' counsel was the entire document, the document that we are offering is the entire document. We included less than the entire document in Your Honor's folder only because this and some other documents like it are so big that there wouldn't be much room for Your Honor up there at the bench if you had the full document in front of you. But it is our intention to introduce, and has been, the entire document.

THE COURT: All right. Any problem?

Court will receive CSP000024.

BY MR. BLEAKLEY:

Q. Now you mentioned earlier today that the activities of the Minnesota legislature are some measure of the state's awareness of issues dealing with smoking and health, and you mentioned this morning the resolution passed by the Minnesota House and later the Minnesota Senate.

What was the next action that you found in your research, legislative action that you found in your research that was taken by the Minnesota legislature with respect to smoking and health?

A. In terms of passage of laws or --

Q. Yes.

A. Yeah. I think the most significant law that was passed during this early period, background period, was in 1909 when the state legislature prohibited the sale and distribution of cigarette and cigarette paper in the state of Minnesota.

Q. Banned the sale of cigarettes entirely?

A. Yes.

Q. Did the state enact a law at any time dealing with the sale of cigarettes to minors?

A. Yes, it did.

Q. When was the first one of those laws?

A. The -- the earliest such law was, again, in the 1880s, and that was periodically renewed and -- and emphasized. The first law, if I remember correctly, defined minors as under the age of 16, and the later law some years later, a few years later, changed that to 18.

*2 Q. All right. Would you turn to tab 19 in your book, please, which is Exhibit CSP000020, 000020 -- 21, pardon me.

No, correct myself again. Four zeroes 20, it's tab 19. A document entitled "GENERAL LAWS OF THE STATE OF MINNESOTA PASSED DURING THE THIRTIETH SESSION OF THE STATE LEGISLATURE COMMENCING JANUARY FIFTH, 1897, OFFICIAL PUBLICATION OF SECRETARY OF STATE."

A. Yes.

Q. Is this the law to which you referred banning the sale of cigarettes to minors under --

A. Yes.

Q. -- the age of 18?

A. Yes, it is the law I referred to earlier.

Q. Now would you turn to tab 21, which is BYL000022 and Chapter 194 of the laws of Minnesota, statutes of Minnesota.

A. Yes.

Q. Is this the statute that was enacted in 1909 forbidding the manufacture and sale of cigarettes and cigarette paper in Minnesota?

A. Yes, it is.

MR. CIRESI: Counsel, is that BYB?

MR. BLEAKLEY: BYL000022.

Your Honor, we'd move the admission of this exhibit, BYL000022.

MR. CIRESI: Relevance, Your Honor. Objection.

THE COURT: The court will receive BYL000022.

BY MR. BLEAKLEY:

Q. Now is there a ban on the sale of cigarettes in Minnesota today?

A. No.

Q. Did there come a time when this law was repealed?

A. Yes, there was.

Q. And when was it repealed?

A. Four years later, 1913. It wasn't actually repealed, it was superseded.

Q. And what was it superseded by?

A. It was superseded by a law that established licensing of cigarette vendors, they would pay for the licensing, and strict enforcement of -- or at least they called for strict enforcement of prohibition of the sale of cigarettes to minors.

Q. Would you turn to tab 23 in your book, which is BYL000024, and this is an excerpt from the general laws of Minnesota for 1913, Chapter 580.

A. Yes.

Q. BYL000024.

A. Yes.

Q. And this is the law which ended the ban on the sale of cigarettes but substituted regulation and laws with respect to the sale to minors.

A. Yes.

Q. Is that correct?

A. That is correct.

Q. Now during this early period; that is, around the turn of the 20th century, did the state legislature take any other legislative action regarding tobacco?

A. Yes, it did.

Q. Can you describe that for us, please.

A. Yes. It's not a very important action but it was a very symbolic one. They attempted by subsidy to provide funds -- it was 2,000 dollars a year -- for the development of tobacco culture in the state of Minnesota. Bit strange. Can't see tobacco being grown in Minnesota in this climate. But at least they attempted it.

Q. During the period between 1900 and 1950, did the state legislature consider other laws dealing with cigarettes and tobacco?

A. Every legislative session had some legislation introduced regarding cigarettes, smoking, issues of that kind. Not all of them were passed, obviously. Very few of them were passed, but they were produced.

*3 MR. CIRESI: Objection, Your Honor, this is going beyond the scope of the court's order.

THE COURT: Well I'll let the answer stand.

MR. BLEAKLEY: And I would ask that Mr. Ciresi wait until the witness has finished his answer and not interrupt.

MR. CIRESI: I believe the witness was done.

THE COURT: Were you done with your answer?

THE WITNESS: Pardon me?

THE COURT: Were you done with your answer?

THE WITNESS: Yes, I was. Yes, that was it.

BY MR. BLEAKLEY:

Q. Now let's talk about the period starting with 1950 and going up to the time of the Surgeon General's report in 1964.

A. Uh-huh.

Q. Did the Minnesota Department of Education continue to recommend teaching about the health risks of smoking to the public schools in the state of Minnesota after 1950?

A. Yes, it did.

Q. Let me turn your attention to Exhibit 20 -- to tab 24 -- I'm sorry, to tab 26 in your binder.

A. Yes.

Q. BYB000435A, which is a publication of the Minnesota Department of Health entitled "MINNESOTA'S HEALTH" dated March 1954.

A. Yes.

Q. Is this a document that you found in the course of your research?

A. Yes.

Q. And is this kind of newsletter the kind of document upon which historians rely when they do historical analyses?

A. Yes.

Q. And does it form a part of the basis for your opinions in this case?

A. Yes.

Q. And can you tell us what this publication is, this --

A. Yes.

Q. -- MINNESOTA HEALTH?

A. MINNESOTA HEALTH is an official publication of the Minnesota Department of Health, published monthly except in the summer months when it's bi-monthly. Its target audience are health- care professionals, educators, opinion leaders in the state. And its purpose is to make information available to them that would be useful having to do with health matters and education.

MR. BLEAKLEY: Your Honor, at this time we move the admission of BYB000435A.

MR. CIRESI: On what basis, Your Honor?

MR. BLEAKLEY: We move this on the basis that it is an official government publication, among others, and it is also relevant to the state's awareness and the actions that the state took on smoking-and-health issues.

MR. CIRESI: Well we have no objection on the former grounds, Your Honor.

THE COURT: Court will receive BYB000435A.

BY MR. BLEAKLEY:

Q. Now this document that was prepared by the Minnesota Department of Health, does this talk about the Hammond and Horn study that we'd been discussing here earlier today?

A. Yes, it does.

Q. And inviting -- advising health officials about it --

A. Yes.

Q. -- in Minnesota?

The article is entitled "Research Probes Mysteries of Cancer?"

A. Yes.

Q. And it talks about the fact that the Hammond/Horn study is going on at that very moment; does it not?

A. It does.

Q. And it describes the Hammond and Horn study as one of special interest in Minnesota; doesn't it?

*4 A. That it does, yes.

Q. Would you turn to tab 27 in your book, which is Exhibit BYS000001A. It's a September 1954 MINNESOTA'S HEALTH, another newsletter published by the Department of Health; is that correct?

A. That's correct.

MR. BLEAKLEY: We'd move the admission of Exhibit BYS000001A on the same basis that we moved the admission of 0 -- BYB000435A.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYS000001A.

BY MR. BLEAKLEY:

Q. Now these were publications of the Department of Health; right?

A. That's correct.

Q. Okay. Now turn your attention, if you would, to tab 30, which is Exhibit 0 -- BYS000002. It's a publication entitled "A GUIDE FOR INSTRUCTION IN ALCOHOL, TOBACCO AND NARCOTICS EDUCATION, Grades 1 through 12, CURRICULUM BULLETIN NO. 21, STATE OF MINNESOTA, DEPARTMENT OF EDUCATION, St. Paul, 1957."

A. That's correct.

Q. And is this a document that you found in the course of your research in this case?

A. Yes.

Q. And does it form a part of the basis for your opinions in this matter?

A. Yes.

MR. BLEAKLEY: At this time, Your Honor, we move the admission of Exhibit BYS000002.

MR. CIRESI: As a government document?

MR. BLEAKLEY: As a government document.

MR. CIRESI: No objection, Your Honor.
 

--------------------- Page 11 follows ---------------------
 

MR. BLEAKLEY: Among others.

THE COURT: I'm sorry, among what?

MR. BLEAKLEY: Among others. We also offer it as evidence of the state's awareness of matters dealing with health risks of smoking.

THE COURT: I'll receive it as a government document. But the copy that I have is -- some of the pages are not legible. I hope that the exhibit itself is legible.

MR. BLEAKLEY: Once again, Your Honor -- I see what you mean, mine is also difficult to read -- we will do our best to make sure that the document that goes into evidence is as good a copy as possible.

BY MR. BLEAKLEY:

Q. Would you turn your attention to the page that begins with "INTRODUCTION," bears the Bates stamp 22 -- MN00305229.

A. I have that.

Q. Do you have that in front of you?

I've got a better copy than that.

This document reads, "Not only is it the moral responsibility -- Not only is it the moral responsibility of educational systems to prepare youth to meet this problem, it is mandatory, understate law in Minnesota, that school administrators include in the curriculum, instruction on the effects of alcohol, tobacco, and narcotics." Do you see that?

A. I do, sir.

Q. And what is the significance to your opinions in this case of that statement?

A. The state's awareness regarding the hazards of smoking were so significant that in fact it continued its mandatory policy to the schools that are in the state that it should teach -- teach regarding the effects of alcohol, tobacco, and narcotics to the children in the state of Minnesota.

Q. Now let me ask you to turn to tab 21 in your book, if you would.

*5 A. Twenty-one?

Q. Yes. I'm sorry, 31.

A. Thirty-one.

Q. Which is demonstrative Exhibit X1255, which is an excerpt from "A Guide For Instruction in Alcohol, Tobacco and Narcotics Education" that was received in evidence as BYS000002. Do you have that in front of you?

A. I do.

Q. And does that in fact contain an excerpt from the previous exhibit?

A. Yes.

MR. BLEAKLEY: Your Honor, for illustrative purposes only we move the admission of demonstrative -- demonstrative Exhibit X1225.

MR. CIRESI: No objection.

THE COURT: Court will receive X1225 for illustrative purposes.

MR. BLEAKLEY: Part of the purpose, Your Honor, is the fact that the original document is so difficult to read.

BY MR. BLEAKLEY:

Q. Would you turn your attention to the first excerpt which reads, "Habit Forming Drugs."

A. Uh-huh.

Q. And would you read that to us, please.

A. Yes. "'shortness of breath'...heart rate and blood pressure may increase or decrease...diseases of the blood vessels...presence of heart disease, the symptoms of the disease may be exaggerated by smoking...development of peptic ulcer...irritation of the mouth and lungs may predispose to development of cancer...disturbs reproduction and the growth of young is retarded."

Q. And then there's a --

MR. CIRESI: Excuse me, counsel, may we have a page for that?

MR. BLEAKLEY: The page from the original exhibit?

MR. CIRESI: Yes.

MR. BLEAKLEY: I don't have that at my fingertips. I'm sorry, I don't have it.

BY MR. BLEAKLEY:

Q. The next excerpt was entitled "Tobacco Education?"

A. Yes, it is.

Q. And would you read what that says, please.

A. "Tobacco Education

"...contributing factor in causing throat and lung cancer," tobacco is, "short-windedness...habit forming" and "smokers cough." These are the elements that are to be taught in the schools.

Q. And the last sentence of the exhibit?

A. "the main factor responsible for the increasing incidence of lung cancer" is smoking.

MR. CIRESI: That's not what it says, Your Honor.

Q. "the increasing -- increasing incidence of lung cancer."

THE COURT: I think you have not read that correctly.

MR. BLEAKLEY: You misread it.

THE WITNESS: No, I just added that last word --

THE COURT: Why don't you just read it accurately.

THE WITNESS: All right.

A. The actual quote is "the main factor responsible for the increasing incidence of lung cancer."

Q. And it's talking about cigarettes; isn't it?

A. Talking about tobacco education. That's why I added the word.

Q. And so these were among the elements of the 1957 guide for instruction in alcohol, tobacco and narcotics education which the Department of Education said was mandatory to be included in the curriculum in public schools in Minnesota; is that right?

A. Yes.

Q. Would you turn to tab 33 -- 32, which is demonstrative Exhibit X1133, another excerpt from Exhibit BYS000002.

*6 A. I have it in front of me.

Q. And does this in fact contain excerpts from the curriculum guide --

A. Pardon me?

Q. Does it contain excerpts from the document that we just discussed?

A. It does.

MR. BLEAKLEY: We would move for illustrative purposes only the admission of demonstrative Exhibit X1133.

MR. CIRESI: We object to this. There's editorial comment that is not from the document.

MR. BLEAKLEY: I think the --

MR. CIRESI: The upper left-hand corner.

MR. BLEAKLEY: I think we actually removed that; didn't we?

That has been removed.

THE COURT: May I see the document, please?

(Document handed to the court.)

THE COURT: All right. The court will receive X1133A. A?

MR. BLEAKLEY: I'm sorry, yes, Your Honor, it is demonstrative Exhibit 1133A.

THE COURT: For illustrative purposes.

MR. BLEAKLEY: For illustrative purposes only.

THE COURT: Okay.

BY MR. BLEAKLEY:

Q. And this document, Exhibit -- demonstrative Exhibit X1133A contains some additional excerpts from the mandatory curriculum; is that correct?

A. Yes.

Q. And those excerpts read, "'Does nicotine cause poor eyesight?'

"'Nicotine blindness can occur but it is rare.'

"'Does tobacco cause cancer?' .

"'There is some evidence at the present time to indicate that inhalation of tobacco smoke may be a contributing factor in causing throat and lung cancer."'

And then it reads, "'Why do they advertise tobacco so much over TV?'

"'Tobacco companies have the money to do the advertising and thus hope to increase their sales."'

A. Yes.

Q. And that's all from the curriculum --

A. Yes.

Q. -- that is mandatory for teaching in public schools; correct?

A. Yes.

MR. CIRESI: I object -- excuse me, professor. I object to that statement. It is contrary to the document. These are guidelines. The schools may adopt what they choose to do.

THE COURT: You have to rephrase the question, counsel.

BY MR. BLEAKLEY:

Q. These were among --

These statements were among the things that were included in Exhibit 000002, which was a guide issued pursuant to the decision of the Department of Health -- of Education that instruction on health -- smoking and health was mandatory in the public schools; is that right?

A. That is correct.

Q. Now did you find in your research documents which showed that the Department of Education was itself aware of some of the studies on smoking and health which were being conducted during the 1950s and 1960s?

A. Yes, I did.

Q. Would you turn to tab 28. Tab 28 is Exhibit BYB000255A. It's a document entitled "School Health News, PUBLISHED AND DISTRIBUTED FREE BY THE MINNESOTA DEPARTMENTS OF HEALTH AND EDUCATION, WINTER 1963;" is that correct?

A. That's correct.

Q. And is this one of the documents that you found during your research in this case?

A. Yes, I did.

Q. And do you rely on it as a part of the basis for your opinions in this case?

*7 A. Yes, I do.

Q. What is School Health News?

A. The School Health News was, again, an official publication, published jointly by the Departments of Health and Education for the purpose of disseminating health information for education purposes to the schools and to school professionals and to health- care professionals in the state.

Q. For what purpose?

A. Oh, for the purpose of making them known about the latest developments in various different health fields.

Q. Including --

A. And including smoking and health.

Q. Does that include teachers?

A. Pardon me?

Q. Does it include teachers?

A. Includes teachers, yes.

Q. Okay.

MR. BLEAKLEY: We move the admission at this time of this document, which is BYB000255A.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYB000255A.

BY MR. BLEAKLEY:

Q. Would you turn your attention to page two of this document.

A. I have it in front of me.

Q. Can you highlight that, make it larger? Enlarge it for me a little bit. No, the entire page. Can you enlarge that at all? I want the picture of the young lady and the headline. There you go.

This shows a student and talks about a poll showing smoking habits in junior high school; is that correct?

A. That's correct.

Q. Okay. Now would you focus on the highlighted part.

And among the things that this document, School Health News, tells its readers is that "Increased concern about this problem arises from the health implications of smoking and the increased incidence of lung cancer. The American Public Health Association estimates if present lung cancer fatality trends continue, about a million young people now in school will die of lung cancer before they reach the age of 70."

A. That's what it says, yes.

Q. Is that right?

Now was the state of Minnesota continuing, during the period of the '60s and '70s, to adopt educational programs designed to teach the potential risks of smoking to its students in public school?

A. Yes, it did.

Q. Has the state Department of Education ever stopped preparing materials to be used in teaching the children of Minnesota about the health risks of smoking?

A. Not to my knowledge.

Q. Does it continue to do so to this date?

A. They continue to do so to this date, yes, sir.

Q. Turn to tab 33 in your book, which is Exhibit BYB000252. It's a document entitled "I'LL CHOOSE THE HIGH ROAD, TEACHER'S GUIDE FOR THE FILMSTRIP," and then it has the emblem of the American Cancer Society down at the bottom of it.

A. I have it in front of me, yes.

Q. Is this a document that you found during the course of your research in this case?

A. Yes.

Q. And did you rely on it as a part of the basis for your opinions in this case?

A. Yes.

MR. BLEAKLEY: Your Honor, at this time we move the admission of Exhibit BYB000252.

MR. CIRESI: It's hearsay. It's not a government document.

*8 MR. BLEAKLEY: It is offered not for the truth, Your Honor, but for notice to the state and the use for which it was made.

MR. CIRESI: Your Honor, there's no foundation, then, with regard to the latter statement of counsel.

MR. BLEAKLEY: All right. I'll establish it.

BY MR. BLEAKLEY:

Q. Do you know what this is?

A. Yes, I do.

Q. What is it?

A. This is the text -- teacher's guide for a filmstrip that was put together by the Minneapolis Public Schools, the Minnesota Board of Health, the Hennepin County Cancer Society, the University of Minnesota audio/visual department, and a few more agencies that I'd have to look in there to see the look -- see the list, but those are the ones that I remember offhand without looking at the list.

Q. And for what purpose was it prepared?

A. The purpose of this filmstrip was in order to acquaint 11-, 12- and 13- years -- year-olds about the hazards of smoking.

MR. BLEAKLEY: Your Honor, repeat my motion for admission of this document.

MR. CIRESI: Well, Your Honor, if the professor maybe could point out where it states that in the document, just so we have a point of reference. He said it's in the document.

THE COURT: It is in the document, I think, as I read it.

MR. CIRESI: Do you have --

May I have the page, Your Honor?

THE COURT: Well page two maybe. You must know them better than I do, counsel, but I'm suggesting page two.

MR. BLEAKLEY: Yes, page two.

MR. CIRESI: You did say BYB252, 000?

MR. BLEAKLEY: BYB000252.

I'm sorry, BYS.

MR. CIRESI: Oh.

MR. BLEAKLEY: That's why I'm not a teacher.

THE COURT: We're not only not on the same page, we're not on the same document.

MR. BLEAKLEY: I'll probably do it again, but I'll try to keep it to a minimum. Okay, BYS000252.

THE COURT: Say that again, counsel.

MR. BLEAKLEY: BYS000252.

THE COURT: Are you sure?

(Laughter.)

MR. BLEAKLEY: I'm making --

Now I'm getting myself confused. I'll start over again.

THE COURT: You're getting me confused, I know that.

MR. BLEAKLEY: I'm certain. BYB --

THE COURT: Okay.

MR. BLEAKLEY: -- 000252. Sorry.

MR. CIRESI: That's where we're back -- we're back to it again, Your Honor, and our page two doesn't have any --

MR. BLEAKLEY: 00 -- BYB000252.

MR. CIRESI: The organizations that the professor mentioned are not on our page two of BYB000252.

MR. BLEAKLEY: I can clarify that, Your Honor.

THE COURT: All right.

BY MR. BLEAKLEY:

Q. Would you turn to tab 34 of your book, --

A. Right.

Q. -- which is Exhibit BYS000008, a document entitled "Minnesota's Health," published by the Department of Health, Minnesota Department of Health, May 1962.

A. Yes.

Q. And does this document indicate who was involved in making the filmstrip that is identified in Exhibit BYB000252?

A. Yes, it does.

Q. And does it include the Hennepin County chapter of the American Cancer Society?

*9 A. It does.

Q. The Minnesota Department of Health?

A. It does.

Q. The Minnesota Department of Education --

A. It does.

Q. -- Board of Education, and the University of Minnesota?

A. It does.

THE COURT: Sir, I don't mean to interrupt you, but --

THE WITNESS: Pardon me?

THE COURT: -- would you wait for your counsel to finish his question, --

THE WITNESS: Oh, I'm sorry.

THE COURT: -- because it's overlapping and the reporter cannot take overlapping.

THE WITNESS: I thought each question was separate. That's why I --

THE COURT: Okay.

THE WITNESS: Sorry.

THE COURT: Relax.

THE WITNESS: My -- my -- my -- I apologize.

THE COURT: Relax and wait, wait for him to finish.

MR. BLEAKLEY: Okay. Once again I move the admission of BYB000252.

MR. CIRESI: No -- no objection.

THE COURT: I'm going to allow it just because --

(Laughter.)

THE COURT: BYB000252 is allowed.

MR. BLEAKLEY: And I'm moving the admission of Exhibit BYS000008, the MINNESOTA HEALTH publication that identifies the organizations who were involved in "I'LL CHOOSE THE HIGH ROAD."

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYS000008.

BY MR. BLEAKLEY:

Q. Now turning back to that document, BYB000252, the filmstrip "I'LL CHOOSE THE HIGH ROAD" --

A. Yes.

Q. -- would you tell us once again what this is? We got a little --

A. Pardon me.

Q. We got a little sidetracked for a moment. Can you tell us again -- once again what this is, very briefly?

A. The purpose of this filmstrip was to acquaint 11- and 12- year-olds with the health hazards of smoking with the objective of making sure either they don't start or quit if they are smoking.

Q. Okay. Would you turn for a section to -- for a moment to page seven of this exhibit.

A. I have that.

Q. And this refers to frame 20. Does that mean it's a frame, particular frame in the filmstrip?

A. Yes, it does.

Q. Photograph of teacher and poster; right?

A. Yes.

Q. And would you read what it says in frame 20.

A. Under the -- as the photo of the teacher and poster is put on the screen, the text reads, either on a record or the teacher reading it, "The heart beats faster and blood pressure rises because some of the substances in the tobacco smoke gets into the bloodstream through the lungs. People who smoke give their hearts and lungs extra work to do."

Q. Would you turn to the next page, page eight, and in particular to frame 28.

A. I have it.

Q. Photograph of two doctors studying a chart?

A. Uh-huh.

Q. And it says there, "They found that smokers are more likely to suffer from heart and lung disease?"

A. That says -- says that, yes.

Q. And then down at frame 30, also a photograph of two doctors examining a chart, would you read that to us, please.

A. The text --

Q. Yes.

A. -- accompanying that frame is "Among cigarette smokers, doctors discovered that deaths from lung cancer increased alarmingly. Such a sharp increase in the number of deaths from a single disease always starts doctors hunting for facts."

*10 Q. And would you turn to the next page, page nine, and frame 31.

A. Yes.

Q. And that reads --

This is a close-up of the chart that was in frame 30; right?

A. It is, yes.

Q. "Here are some facts they have found: Lung cancer today causes nearly ten times as many deaths as it did 30 days; while, at the same time, there are fewer deaths today from all other causes for the same group of people." Is that right?

A. It reads that way, yes.

Q. And then down in frame 32 it says, "The doctors found that the group of men who had never smoked at all had the lowest death rate from lung cancer, but from there on, the more cigarettes the men had smoked, the higher was their death rate from lung cancer?"

A. Yes.

Q. And in frame 33 it says "That is, your chance of getting lung cancer increases sharply if you smoke cigarettes."

A. Yes.

Q. Correct?

A. That's correct.

THE COURT: Counsel, I think frame 31 was not read correctly. Maybe you could reread that.

MR. BLEAKLEY: Frame 31?

THE COURT: Right.

MR. BLEAKLEY: I'm sorry, Your Honor, is it frame 31?

THE COURT: Yes. Just reread it correctly.

MR. BLEAKLEY: Okay. Did I read it incorrectly? Okay.

"Here are some facts they have found: Lung cancer today causes nearly ten times as many deaths as it did 30 years ago; while, at the same time, there are fewer deaths today from all other causes for the same group of people. Doctors questioned men and women who had lung cancer. They questioned the families and friends of those who died. They inquired into the smoking habits of people, both sick and well." Okay?

Q. Would you turn over to page 14.

A. Yes.

Q. At the beginning of the first -- second full paragraph, this document reads, "Clinical, epidemiological, chemical, and pathological evidence demonstrate beyond a reasonable doubt that cigarette smoking is the major cause of lung cancer."

A. It so reads.

Q. And then going over to page 15 of this document, this refers to major studies of lung cancer and cigarette smoking?

A. Yes.

Q. And then paragraph two there says, "The society's own 44- month study of the smoking habits and fate of 187,783 men from 50 to 70 years old has shown that:" And then it goes on to list death -- identify death rates for people in that range; is that right?

A. That's correct.

Q. And this was all being used in this film trip -- filmstrip to teach 12- and 13-year-olds, did you say?

A. Eleven- and 12- and 13-year-olds, yes.

Q. And one of the organizations involved in the development of this project was the Hennepin County School Board.

A. Yes.

Q. Is that right?

A. The Minneapolis -- Minnesota Department of Health and the Minneapolis School Board.

Q. Okay.

A. The Hennepin County Cancer Society is the Hennepin County designation.

Q. Now during this period of time; that is, the '50s and early ' 60s, did the state continue to consider legislative action --

*11 A. Oh, yes.

Q. -- legislative -- let me finish.

A. Sorry.

Q. -- legislative proposals with respect to smoking and health?

A. Yes, it did.

Q. Can you give us some examples of legislation dealing with smoking-and- health issues that were considered by the legislature during this period.

MR. CIRESI: I'm going to object to that, Your Honor. Goes beyond the scope of the court's order. Considered.

THE COURT: Okay. You'll have to rephrase that, counsel.

MR. BLEAKLEY: All right.

BY MR. BLEAKLEY:

Q. Did the state adopt any legislation during that period dealing with smoking-and-health issues?

A. I don't recall whether they adopted legislation except to reinforce what they already had, any new legislation, perhaps increase excise tax, I'm not sure about that, but there were -- there were measures introduced that did not pass that had some significance.

Q. Well describe the measures that were introduced that did not pass.

MR. CIRESI: Objection, irrelevant, outside the scope and purview of the court's order.

THE COURT: Sustained.

Q. During this period of time, was the state imposing an excise tax on the sale of cigarettes?

A. Yes, it was.

MR. CIRESI: Objection -- excuse me. It's irrelevant, Your Honor.

THE COURT: Sustained.

MR. BLEAKLEY: May we approach, Your Honor?

MR. BLEAKLEY: Could I have the last question read back?

(Record read by the court reporter.)

BY MR. BLEAKLEY:

Q. When did the state impose the first excise tax?

A. In 1947.

Q. And has there been an excise tax ever since?

A. Yes.

Q. Has it changed over time?

A. Pardon me?

Q. Has it changed over time?

A. It has changed over time, yes, sir.

Q. Gone up or down?

A. It went up.

Q. Okay. Now I want to turn now, Professor Berman, to the third period that you have used in describing both public awareness and state awareness, and that is the period from the 1964 Surgeon General's report forward.

A. That's correct.

Q. When the Surgeon General's report was issued in 1964, did the state Board of Health adopt the findings of the Surgeon General's report?

A. Almost immediately they did, yes, sir.

Q. Would you turn your attention to tab 36, which is BYB20 -- strike that -- BYB000266.

A. I have it in front of me.

Q. Which is the minutes of a meeting under the state of Minnesota Department of Health, University Campus, January 7, 1964, addressed to the members of the Minnesota state Board of Health.

A. Yes. But the meeting took place January 14th, 1964.

Q. And this memorandum was from Robert N. Barr, M.D., Secretary and Executive Officer?

A. Yes.

Q. Is that correct?

Subject was the annual meeting of the board; is that right?

*12 A. That's correct.

Q. And in these minutes did the Board of Health adopt the 19 -- the findings of the 1964 Surgeon General's report?

A. They did.

MR. BLEAKLEY: Your Honor, we would move the admission of Exhibit BYB000266.

MR. CIRESI: As a government document?

MR. BLEAKLEY: As a government document.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYB000266.

BY MR. BLEAKLEY:

Q. In this document, does the Minnesota Board of Health adopt the finding that smoking causes lung cancer, bronchitis --

A. Yes.

Q. -- and emphysema?

A. Yes, it does.

Q. And what are the findings of the Board of Health with respect to smoking and coronary disease?

A. The Board of Health, in its resolution on smoking, which is on page eight of the minutes, has many whereases which in fact adopts the essence of the Surgeon General's report, that they --

And then the fourth, "Whereas the Advisory Committee considers it more prudent from the public health viewpoint to assume that the established association between cigarette smoking and deaths from coronary -- coronary disease and many other cardiovascular diseases has causative meaning than to suspend judgment until no uncertainty remains." In fact, they're going beyond the Surgeon General's report of 1964 in that statement.

Q. Would you turn to page nine of this document.

A. Yes.

Q. In the middle of the page there are a couple of resolved clauses. Do you see those?

A. I do.

Q. One of the resolutions is "That the Minnesota Department of Health take prompt and vigorous action to increase its program of education of the public and of children of school-age in particular on the subject matter of this report...," referring to the Surgeon General's report; is that right?

A. That is correct.

Q. What if anything -- what --

What else, if anything, did the state and the state Board of Health do upon receipt -- or upon issuance of the Surgeon General's report?

A. It disseminated the Surgeon General's report to its various constituencies with -- well, on the off chance that -- that they didn't see it, which was unlikely. But they did to that anyway.

Q. Would you turn to tab 27 in your book, please, which is Exhibit --

A. Uh-huh.

Q. -- BYB000261A.

A. Yes.

Q. Tab 37, I'm sorry.

You have tab 37 in front of you?

A. I do have it in front of me.

Q. Exhibit BYB000261A.

A. I have it in front of me.

Q. This is one of these MINNESOTA'S HEALTH newsletters; is that correct?

A. That's correct.

Q. Dated February 1964?

A. Yes.

Q. And you've previously testified that the purpose of these newsletters was to advise health officials throughout the state of important matters; is that correct?

A. And educational people as well.

Q. And educational?

A. Yes.

Q. Okay. And in this Exhibit, BYB000261A, does the Department of Health advise about the Surgeon General's report?

*13 A. It does.

Q. And does it, the health department, talk about increasing educational programs?

A. It does.

Q. And does it talk about the filmstrip "I'LL CHOOSE THE HIGH ROAD?"

A. It does.

Q. Does this article, incidentally, take note of the 1962 Minnesota Poll --

A. It does.

Q. -- showing that 69 percent believe that smoking was a hazard, a health hazard?

A. Yes.

Q. And does it also note that one University of Minnesota professor was a member of the advisory committee that formulated the 1964 Surgeon General's report?

A. So it notes, yes.

Q. And that other University of Minnesota professors and a Mayo Clinic physician contributed to the project?

A. It does.

Q. Were there other newsletters issued by the state Department of Health dealing with the Surgeon General's report?

A. Yes, there were others.

Q. The one we have just described was representative?

A. Yes.

Q. Would you turn to tab 38, please, which is Exhibit BYB000260. BYB000260.

A. I have it in front of me.

Q. This is a MINNESOTA HEALTH newsletter dated January 1964?

A. That's correct.

Q. And this also deals with the Surgeon General's report?

A. It does.

MR. BLEAKLEY: Your Honor, we move the admission of BYB000260.

MR. CIRESI: I have no objection to that.

Are you moving the same time 261A?

MR. BLEAKLEY: Yes, I forgot to move 261A, and I move the admission of it as well.

MR. CIRESI: No objection to either, Your Honor.

THE COURT: Court will receive 000260 and 61A.

BY MR. BLEAKLEY:

Q. Would you turn to page two of this newsletter?

A. I'm there.

Q. It is an article entitled "Advisory Committee Reports Effects of Smoking on Health;" is that correct?

A. That is correct.

Q. And they're talking about the Surgeon General's report; right?

A. Yes.

Q. And in the second full paragraph it states "Cigarette smoking is a health hazard of sufficient importance to the United States to warrant appropriate remedial action?"

A. That's correct.

Q. It goes on to say, "In previous studies the use of tobacco, especially cigarette smoking, has been causally linked to several diseases."

A. Yes.

Q. The newsletter goes on to summarize the complete findings of the report; does it not?

A. It does.

Q. And would you read that summary there that begins with the sentence "These widely reported findings...?"

A. I'm sorry?

Q. The end of that paragraph that is titled "Background And Highlights."

A. Yes. "These widely reported findings, which have been the cause of much public concern over the past decade, have been accepted in many countries by official health agencies, medical associations, and voluntary health organizations."

Q. Now let me ask you, Professor Berman, did the state Department of Education become involved in reporting on the 1964 Surgeon General's report?

*14 A. Yes, it did.

Q. Would you turn to tab 40, which is Exhibit CSP000023.

A. I have it in front of me.

Q. This is a document entitled "MINUTES OF BOARD MEETING, APRIL 14, 1964?"

A. Yes.

Q. And then if you turn inside, it's described more completely as minutes of the Minnesota state -- state Board of Health --

A. Yes.

Q. -- dated Tuesday, April 14, 1964.

A. Yes.

Q. And was this one of the documents that you reviewed in the course of your research?

A. Yes, it is.

Q. And does it form part of the basis for your opinions in this matter?

A. Yes.

Q. Now what is this document?

A. This is the minutes of the state Board of Health, which actually describes a resolution on smoking, which is number five on page 18, that in fact it's going to jointly, with the Department of Education, sponsor a series of activities that would generate increased activity around the report among teachers and students.

MR. BLEAKLEY: Your Honor, at this time we move the admission of Exhibit CSP000023.

MR. CIRESI: No objection to the full exhibit.

MR. BLEAKLEY: The full exhibit is being offered.

THE COURT: Okay. That's not the exhibit that I have in front of me.

MR. BLEAKLEY: You do not have the exhibit, or do you just have some excerpts? This is another one of those we didn't put the entire document in your book.

THE COURT: I've got BYB000267.

MR. BLEAKLEY: Under tab 40?

THE COURT: That's right. This is an excerpt of --

MR. BLEAKLEY: I apologize for that, Your Honor. I have both the excerpts and the full exhibit. Would you prefer to have --

THE COURT: I'll take the full exhibit, just so I know what you're putting in.

MR. BLEAKLEY: Okay.

(Document handed to the court.)

THE COURT: All right, court will receive CSP000023.

BY MR. BLEAKLEY:

Q. Now a moment ago, Professor Berman, you referred to some of the resolutions that appear on page 18.

A. Yes, sir.

Q. Can we get a better look at this document -- or that's the demonstrative. Can you go back to the -- for a moment to the actual exhibit. And do you have page 18? There we go.

"Resolutions on Smoking." Can you identify for us the representatives who were at this meeting and who were involved in this?

A. Yes. The joint meeting was called by the Department of Health and Department of Education, and attending the meetings were representatives from the Minnesota Division of the American Cancer Society, the Minnesota Tuberculosis and American Cancer -- and Health Association, the Minnesota Heart Association, the Minnesota Thoracic Society, the Future Farmers of American, the Governor's Conference on Children and Youth, and the Departments of Health of Education.

Q. And would you read the sentence that is highlighted that begins there at the bottom of the page, please?

A. Yes. "It was decided at that time to concentrate on youth before they became addicted. A subcommittee was set up" --

*15 Q. That's all right. You don't need to continue.

A. I'm sorry.

Q. Can you read the sentence that -- turn over on page 19 -- that begins with the words "The program...?"

A. Yes. "The program is tentatively to set up a training course for teachers one-half day in length preferably at state teachers colleges where there would be discussions on the effects of tobacco in relation to cancer, heart disease and emphysema with presentations of various visual aids -- visual aids."

Q. And would you continue on to the end of that paragraph.

A. Surely.

Q. Thank you.

A. "This was planned for the fall, however, it was thought well to put on one session which will be held in May at Mankato Teacher's College where a demonstration project will be put on to iron out the 'kinks.' The first program will be in May followed by six or seven in the fall for teachers in the schools in areas of 25 to 30 miles of teachers colleges with the objective of teaching teachers what they ought to know about smoking and health and how to present it effectively to students."

Q. Now did you find other documents in the course of your research from the state Department of Education and the Board of Health in which those organizations were thinking about programs for educating people about the health hazards of smoking?

A. Yes.

Q. And the documents we have just reviewed are representative of those?

A. Yes.

Q. Would you turn to tab 43, which is Exhibit BYB000262.

A. I have it in front of me.

Q. This is another MINNESOTA'S HEALTH newsletter --

A. Yes, it is.

Q. -- in April of 1964; correct?

A. That's correct.

MR. BLEAKLEY: Your Honor, we'd move the admission of BYB000262.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYB000262.

BY MR. BLEAKLEY:

Q. And would you turn to page two of this exhibit.

A. Yes.

Q. And on page two of BYB000262, does the Minnesota Board of Health put the Surgeon General's findings into perspective using Minnesota-specific statistics --

A. That is correct.

Q. -- on cancer deaths?

A. Yes.

Q. Now would you turn to tab 44, which is Exhibit BYB000257A.

A. I have it in front of me.

Q. That's another School Health News; is it not?

A. That is correct.

Q. Dated April 27, 1960 -- no, I'm sorry, winter 1964.

A. Winter. Yes.

Q. And the School Health News again is?

A. School Health News is again a joint publication from the Department of Health and Education, and it went to both health-care professionals and educators in the state in order to acquaint them -- make them familiar with the latest developments in the health and education fields.

Q. This is a newsletter that is published jointly by the Department of Health and Education?

A. Yes, it is.

MR. BLEAKLEY: Your Honor, we move the admission of BYB000257A.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYB000257A.

*16 BY MR. BLEAKLEY:

Q. You can tell from the date stamp on this that this document is talking about the first months of 1964; is it not?

A. That is correct.

Q. After the Surgeon General's report was released.

A. Yes.

Q. Would you turn to page seven of this exhibit.

A. Yes, I am there.

Q. Page seven refers to inservice courses for the summer of 1964; is that right?

A. That is correct.

Q. And talks about school health workshops?

A. Yes, it does.

Q. And it states that "The major emphasis this year will be the problems of tuberculosis and respiratory disease, as well as smoking and health." Is that right?

A. That is correct.

Q. Would you turn over to page eight of this document, please.

A. Page eight?

Q. Yes. The next page.

A. I have it.

Q. Can you highlight that box there? Thank you.

This box here says "to route this issue," and then it lists a number of people to whom this is sent?

A. Yes.

Q. Can you explain this for us, please.

A. Yes. Since this issue was sent generally to specific school buildings, the intention was to make sure that the important people in those school buildings received the bulletin and read it and were able to assimilate the material in it. Therefore, this box indicates the routing of that particular issue. It would go first to the superintendent, then to the principal, then to the health coordinator, then to the teachers, the school nurse, the school physician, the school dentist, the librarian, and all others.

Q. Now in your research --

MR. CIRESI: Excuse me, counsel, I'd move to strike the first part of his answer as no foundation, non- responsive.

THE COURT: You'll have to lay foundation for that answer.

BY MR. BLEAKLEY:

Q. How do you know that that's what this means, Professor Berman?

A. Pardon me?

Q. How do you know that that's what this means?

A. How do I know that? Because --

MR. CIRESI: Excuse me.

A. -- that is in fact the way things are done in school -- in school buildings.

MR. CIRESI: Excuse me, professor. I wasn't objecting "to route this issue," I think that speaks for itself, I was objecting to the first part of his answer for which there was no foundation.

THE COURT: Okay.

MR. BLEAKLEY: Well I must admit I don't remember the part that Mr. Ciresi is objecting to.

THE COURT: Would you like it read back?

MR. BLEAKLEY: Yes, please. Thank you.

THE COURT: Can you read that back, please?

(Record read by the court reporter.)

BY MR. BLEAKLEY:

Q. How do you know that it was sent to specific school buildings?

A. Pardon me?

Q. How do you know that it was sent to specific school buildings?

THE COURT: That wasn't the question, counsel.

MR. BLEAKLEY: I guess I'm missing it.

THE COURT: Can you just read back the question that you read, and then it would be easier.

MR. BLEAKLEY: Okay.

THE COURT: Just read it back as you asked it.

*17 (Record read by the court reporter.)

BY MR. BLEAKLEY:

Q. How do you know what the intent was?

A. How do I know what the intent was?

Q. Yes.

A. The purpose of this bulletin was in fact to acquaint educators of health news that are of importance and interest to them in their teaching or in their relationship to school children.

Q. In your research, Professor Berman, did you find any evidence that the efforts of the Department of Education and the health that you've been speaking about here in the last few minutes found its way into the state's curriculum teaching guides?

A. Yes, I have.

Q. Would you turn to tab 45, please, --

A. Yes.

Q. -- which is Exhibit BYT000169A.

A. I have it in front of me.

Q. This is a document entitled "A GUIDE FOR INSTRUCTION IN HEALTH AND SAFETY, GRADES 7-12, State of Minnesota, Department of Education, St. Paul, 1965."

A. That's correct.

Q. Correct?

And is this a document that you found in the course of your research?

A. Yes.

Q. And did you rely on it as a part of the basis for your opinions in this matter?

A. Yes.

Q. And it is an official government publication?

A. Yes.

MR. BLEAKLEY: Your Honor, at this time we move the admission of BYT000169A.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYT000169A.

BY MR. BLEAKLEY:

Q. And can you tell us what this is, Professor Berman?

A. Yes. This is the curriculum guideline for health and safety instruction for grades seven to 12 as developed by the state Department of Education.

Q. And would you turn your attention, professor, to page 68.

A. I have that in front of me.

Q. Can you highlight that? Can you enlarge that?

And there's a section that appears under "Content Outline" on page 68 entitled "Tobacco;" is that right?

A. That's correct.

Q. And would you read what it says there about tobacco under paragraph number one, "Nature and Content."

A. Yes. It says there, "Tobacco contains nicotine, a harmful poison, and is habit forming."

Q. And under paragraph two, "Effect on Health of Individuals," read paragraph -- subparagraphs b. and c.

A. Right. It says under the "Effect on Health of Individuals

"a. Nicotine poisoning.

"b. Primary cause of lung and laryngeal cancer

"c. Heart and circulation

"d. Irritation of nose, throat and lungs" and

"e. Cigarette smoking a recent health problem."

Q. What is your understanding of the term -- the column here that says "Content Outline." What does that mean as an educator?

A. That means that this is what the state Board of -- Department of Education put in its guidelines to be taught to students in grade -- in this instance grades seven to 12. So these are the problems that should be taught to children.

Q. Would you turn over to page 142 of this document. Can you highlight that again for me. Thank you. Now --

*18 A. I have it in front of me.

Q. Again under "Content Outline," the section "Tobacco."

A. Yes.

Q. "Effect of smoking on health" says, "May shorten live expectancy by causing lung cancer, circulatory disease, and lung diseases;" is that right?

A. That is correct.

Q. Did you see any of the information that was contained in these Department of Health and Education documents that we've been talking about that actually turned up in state- approved textbooks in the 1960s and '70s?

A. Yes, I did.

Q. Would you turn to tab 46 in your book, which is Exhibit BYB000046A. And this is a book entitled "HEALTH & Safety for YOU, 4th Edition."

A. Yes.

Q. Is that right?

And by whom is it written?

A. It's written actually by five -- by -- by four authors. This copy here has only three listed. The fourth author was Harold Diehl, who I think died before this issue -- this edition went to print, and therefore that may be the reason his name was left out. But Harold Diehl, John Lampe, Charles Oviatt and Frank -- Franklin Vaughn are the authors.

Q. Is this Dr. Diehl the same Dr. Diehl you testified about this morning?

A. That is correct. The Dr. Diehl who, at the time of his death, was in the American Cancer Society and before that had been Dean of the University of Minnesota Medical School.

Q. And was this textbook an approved -- state- approved textbook for use in public schools, in public schools in Minnesota?

A. It was.

MR. BLEAKLEY: Your Honor, we move the admission of BYB000046A.

MR. CIRESI: Under what rule, Your Honor?

MR. BLEAKLEY: I'm offering it for the same purpose as I've offered all of these exhibits, which is to show that --

MR. CIRESI: Well --

MR. BLEAKLEY: -- not for the truth, but for the fact that the state of Minnesota was approving textbooks on smoking and health.

MR. CIRESI: I was just wondering what rule he's offering it under, not his argument.

THE COURT: All right. Court will receive BYB000046A.

BY MR. BLEAKLEY:

Q. Let me ask you, if you would, Professor Berman, to turn to page 96, which was --

A. I -- I have it in front of me.

Q. -- which is entitled "Chapter 9, Use of Tobacco."

A. That's correct.

Q. Can we have that on the screen? Don't have it?

There's a section entitled "SMOKING HABIT" there, do you see that?

A. I do.

Q. And would you read the first couple of sentences of that paragraph, please.

A. I will. It reads, "A person may start smoking for any one of many reasons. He continues because he has developed the habit. Smoking leads to a strong addiction to tobacco which is very difficult to overcome. A regular smoker may be uncomfortable and unhappy when he tries to stop. The craving to smoke may interfere with his thinking, interrupt his work, or make him careless, cross, and irritable."

Q. So in this textbook approved by the state in 1975, the state-approved textbook taught that smoking was addictive; is that right?

*19 A. So it states there, yes, sir.

Q. Now we've been talking up until now about the state's effort to educate its students about the health risks of smoking in the 1960s and 1970s. Let me ask you this: During this period of time were students in school allowed to smoke in school?

A. Officially, no.

Q. Well you said "officially." Were they in fact allowed to smoke in school?

A. There was leeway, I guess, in some schools.

MR. CIRESI: Well Your Honor, there's no foundation for the professor to be speculating.

THE COURT: Sustained.

Q. Did there come a time when the state legislator -- state legislature considered a law to allow students to smoke in school?

A. Yes.

Q. And can you describe that legislation for us.

A. A number of legislation -- legislations were introduced over time of 1975. One such piece of legislation, I think, has become perhaps notorious because of the person who introduced it.

Q. No commentary, Professor Berman.

MR. CIRESI: Your Honor, I'm going to object to this line of questioning. This again --

Q. Just describe the legislation.

MR. CIRESI: Excuse me. This is a bill that was not passed. It was a bill that was not passed.

THE COURT: All right. The objection is sustained.

MR. BLEAKLEY: Your Honor, we've had testimony about this.

May I approach the bar -- I don't want to state all this -- may we approach the bench for just a moment?

THE COURT: The witness's answer will be stricken. It's not appropriate.

MR. BLEAKLEY: No, I understand that. But could I approach for just a second on this?

THE COURT: Okay.
 

THE COURT: Take a short recess.

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, has the state of Minnesota ever allowed children to smoke in its juvenile correctional facilities?

A. I'm sorry?

Q. Has the state of Minnesota ever allowed children to smoke in its juvenile correctional facilities?

A. Yes, they have.

MR. CIRESI: Irrelevant.

THE COURT: Well I'll let the answer stand.

Q. And your answer?

A. Yes, they have.

Q. In the course of your research in this matter, did you come upon any evidence about the state's policies with respect to smoking in juvenile correctional facilities?

A. Yes, I have.

Q. And how did this evidence come to your attention?

A. Well it showed, of course, that during the period of time when this occurred, which was in the '70s, there was still concern about smoking and health yet. There was also concern about the fact that young people did smoke, and the correctional department was in fact faced with problems that had to do with discipline, that certainly they had some kind of concern about, and therefore this was a kind of wrestling with the issue that they did.

*20 MR. CIRESI: Your Honor, move to strike as non-responsive. Has nothing to do with the question.

THE COURT: It's non-responsive. That answer will be stricken.

BY MR. BLEAKLEY:

Q. Did you find evidence in newspapers that you reviewed in the course of your research dealing with smoking in educational facilities?

A. Yes.

Q. And what did you see in the newspaper articles about smoking in correctional facilities?

A. Smoking and --

MR. CIRESI: Excuse me. Objection, calls for hearsay.

THE COURT: Okay. It does.

Q. After you read the articles in the newspapers about smoking in educational facilities, what if anything did you -- correctional facilities, what if anything did you do to research the issue further?

A. We went down to the Minnesota Historical Society and examined the records and files of the Department of Corrections and found confirming evidence to what was in that newspaper article.

Q. Would you turn to tab 48 in your book, which is Exhibit BYB000346, which is a very poor copy of a Red Wing Staff Bulletin from May 23, 1968.

A. That's correct.

Q. Do you know what Red Wing Staff Bulletin was?

A. Yes.

Q. I mean what Red Wing was?

A. Yes.

Q. What is Red Wing?

A. Red Wing Correctional Facility, which was a youth facility for young juveniles that was in -- in Red Wing, Minnesota, and had been in existence for a long time.

Q. And what is this Red Wing Staff Bulletin that is identified as Exhibit BYB000346?

A. This is the bulletin that went to the staff of the Red Wing Correctional Facilities to outline to them what in fact was taking place in different areas, what regulations were to be followed and things of that nature. It's an ongoing staff bulletin that appears, if I'm not mistaken, weekly.

Q. And does it talk about smoking by juveniles in these correctional facilities?

A. In this particular bulletin it does.

MR. BLEAKLEY: Your Honor, at this time we move the admission of Exhibit BYB000346 as an official government document.

MR. CIRESI: We object, Your Honor, there's no foundation for this from this witness. It's incomplete. It does not show the underlying rationale for the policy, which is available in other evidence.

THE COURT: All right. The objection is sustained.

Do you have a complete document?

MR. BLEAKLEY: I'm sorry?

THE COURT: Do you have a complete document?

MR. BLEAKLEY: Yes, we do.

This is the complete document, Your Honor.

THE WITNESS: It is.

MR. BLEAKLEY: The cc lines are at the bottom of the page. This is the complete document.

MR. CIRESI: The cc is not the basis of the objection, Your Honor. The point is "the underlying rationale for the policy" is what I said. This is an incomplete document with respect to what was or was not allowed and what needed to be done in order to allow it.

MR. BLEAKLEY: Well the introduction --

THE COURT: All right.

*21 MR. BLEAKLEY: Sorry.

THE COURT: Unless you want to continue arguing --

MR. BLEAKLEY: Yes.

THE COURT: But -- you already won, but you can go ahead and continue.

MR. BLEAKLEY: No, I won't do that.

(Laughter.)

THE COURT: All right.

MR. BLEAKLEY: My law school professors told me not to do that.

THE COURT: Good thinking.

BYB000346 will be allowed.

BY MR. BLEAKLEY:

Q. Would you refer now to Exhibit 49, demonstrative Exhibit -- I mean tab 49, demonstrative Exhibit X1123, which is an excerpt from the previous exhibit; that is, Exhibit BYB000346, that talks about smoking at Red Wing.

A. That's correct.

MR. BLEAKLEY: And Your Honor, we move the admission for illustrative purposes only of demonstrative Exhibit X1123, because the prior exhibit is very, very difficult to read.

MR. CIRESI: No objection for illustrative purposes, Your Honor.

THE COURT: Court will receive X1123 for illustrative purposes.

BY MR. BLEAKLEY:

Q. Does this excerpt from the State Training School Staff Bulletin indicate that smoking was allowed by juveniles at Red Wing?

A. Yes, it does.

Q. It reads, "Beginning on this date, smoking will be allowed in Brown Cottage. Cigarettes will be furnished to all boys in Brown who have smoking permission, and will be purchased from the Brown Cottage share of the canteen funds. Smoking will be allowed in the activity area of the cottage only and will be allowed at the discretion of the counselor on duty."

A. That's what it says, yes.

Q. Is that correct?

A. That is correct.

Q. Now did you find evidence in your research of smoking being allowed at any other juvenile correction facilities?

A. There were photos in the -- in -- in the Department of Correction files and bulletins that showed, in fact, juveniles smoking.

Q. At which correctional facilities?

A. It's hard to say from the photos.

Q. Did you find any evidence that young people were -- who were at correctional facilities, at Minnesota Home School, were allowed to smoke?

A. Yes.

MR. CIRESI: Well objection -- excuse me, Your Honor, it's leading and suggestive.

THE COURT: That is leading and suggestive, counsel.

MR. BLEAKLEY: Sorry, Your Honor.

Q. Let me refer you to tab 50, Exhibit BYB000340A, --

A. Uh-huh.

Q. -- which is a pamphlet on the Minnesota Home School.

A. That is correct.

Q. And what is the Minnesota Home School?

A. Minnesota Home School is one of the correctional facilities that serves the 49 counties of western Minnesota.

Q. And is this one of the documents you found during your research?

A. These are the documents I found at -- with the photos I was referring to before.

Q. And in your review of this document, did you see photographs of children smoking?

A. Yes.

Q. During the course of your research, did you see any evidence indicating why juvenile correctional facilities such as the Minnesota Home School and Red Wing allowed juveniles to smoke in these facilities?

*22 A. Yes. There was rationale given, yes.

Q. Would you turn to tab 83, which I believe in the next book.

A. Next book.

Yes, sir.

Q. Tab 83 is Exhibit BYS000814.

A. Yes.

Q. And it is a letter from Kenneth F. Schoen, Superintendent, to Dr. G. M. A. Portier, June 20, 1969; correct?

A. That is correct.

Q. And Kenneth Schoen was the director of the Minnesota Home School; is that right?

A. That is correct.

Q. And is this a document that you found during the course of your research in this matter?

A. Yes, I did.

Q. And does it form part of the basis for your opinions in this matter?

A. Yes.

MR. BLEAKLEY: Your Honor, we move the admission of Exhibit BYS000814.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYS000814.

BY MR. BLEAKLEY:

Q. And from this letter is Mr. Shown, the director of Minnesota Home School, responding to a person who wrote in about children smoking --

A. Yes.

Q. -- at the Minnesota Home School?

And let me direct your attention to the second full paragraph of the letter. Would you read the first two sentences of that letter -- first three sentences of that letter.

A. Yes. "Our policy is simply a practical approach to the problem. The law regarding smoking below the age of 18 is not strictly enforced in our communities throughout the state and it is especially difficult in institutions to enforce a law that is paid scant attention to in society at large."

Q. In the course of your research in this case, did you discover any other evidence that youth smoking laws are not enforced?

A. I think that this was what I found, and the -- the evidence in the corrections facilities showed that they -- they were not enforced there.

Q. Let me turn your attention to tab 84, which is Exhibit AST000013.

A. Yes, I have it in front of me.

Q. This is a document entitled "MINNESOTA STATUTES ANNOTATED, Sections 609 to 624, Volume 40."

A. That's correct.

MR. CIRESI: May we have the number again, counsel?

MR. BLEAKLEY: Yes, ASP000013.

MR. CIRESI: Thank you.

BY MR. BLEAKLEY:

Q. Do you have that in front of you?

A. Yes, I do have it in front of me.

Q. And would you refer specifically to section -- Minnesota Statute Section 609.685.

A. Yes.

Q. Which was first adopted in 1963?

A. This is a 1963 law adopted dealing with the sale of tobacco to children.

MR. BLEAKLEY: Your Honor, we move the admission of Exhibit ASP000013.

MR. CIRESI: No objection.

THE COURT: Court will receive ASP000013.

BY MR. BLEAKLEY:

Q. And this is a law that forbids the sale of tobacco to children; is that correct?

A. That's correct.

Q. And what is the age limit for --

A. Eighteen.

Q. Anyone under the sale of 18 is unlawful; is that correct?

A. True.

Q. Now would you turn to --

Do you see at the bottom of the page it says "Advisory Committee Comment?"

*23 A. Yes.

Q. Would you turn over to page 480.

A. Yes.

Q. In the middle of the page there's a paragraph that begins with the word "The widespread...," do you see that?

A. Yes, I do.

Q. Would you read that paragraph, please.

A. Yes. "The widespread disregard of these prohibitions and general lack of prosecution are matters of common knowledge. This does not make for respect for our laws on the part of our youth."

Q. Now would you turn to tab 82, which is Exhibit BYS000033.

A. I have it in front of me.

Q. This is an advance state bar sheet of the Minnesota State Bar Association; --

A. That's correct.

Q. -- is that correct?

Dated March 29, 1977?

A. That's correct.

Q. And is this a document that you found during the course of your research in this matter?

A. Yes, it is.

Q. And is it a document on which you rely as part of the basis for your opinions in this case?

A. Yes.

MR. BLEAKLEY: Your Honor, we move the admission of Exhibit BYS000033, not for the truth, but for the statements made in the document and the notice.

MR. CIRESI: Well it doesn't go to any notice. And it's hearsay, Your Honor.

THE COURT: The objection is sustained.

MR. BLEAKLEY: We're not offering it for the truth of the statement, however, we're offering it for the state of mind of the writers, which was the Minnesota Bar Association.

THE COURT: I don't believe it was, as I read it.

BY MR. BLEAKLEY:

Q. Mr. -- or Professor Berman, what is the significance of the evidence that you saw about the state juvenile correctional facilities allowing children to smoke and the evidence that you saw that the law prohibiting the sale of cigarettes to minors were not being enforced? What is the significance of that evidence to your opinions in this case?

MR. CIRESI: Objection, Your Honor, outside the scope of his expertise.

THE COURT: I think you're going to have to rephrase that question, counsel.

Q. What is the significance of this evidence to your opinions concerning the state of awareness of the state -- of the people of Minnesota, the state of Minnesota, and the role that the state of Minnesota played in educating people about the health risks of smoking?

MR. CIRESI: Objection on foundation and relevance, Your Honor.

THE COURT: All right. You can answer that.

A. May I?

Q. You can answer.

A. Oh, thank you.

It tells me a number of things. First, that although the state and the public were aware of the health risks of smoking and, as late as 1977, '68, ' 77, were attempting to do something about it, the state of activity in the streets, the communities among juveniles was such that there was a kind of ambivalence in terms of enforcement of the law. There was a -- it's a different time. It was, you know, 25 years ago. People were living with a different mindset. Although the knowledge of the health hazards was there, perhaps the intensity of that knowledge wasn't there. But in any case, the fact remains that there was a degree of leeway that the state operated with in non- enforcement of the minor laws and in allowing smoking in juvenile facilities that suggests to me that there was still wrestling with the problem.

*24 MR. CIRESI: I'm going to move to strike it as no foundation, except with respect to how he's trying to relate it to the Red Wing facility.

THE COURT: All right. Well as to the last four words of your statement, I'll strike that, but the rest of the answer can stand.

BY MR. BLEAKLEY:

Q. During the '60s and 1970s, did the state legislature consider any legislation concerning possible warning labels on cigarettes?

A. Yes, they did.

Q. Would you turn to tab 54.

MR. CIRESI: Your Honor, it's irrelevant. Again it goes beyond the scope of the court's order also implicates federal law.

MR. BLEAKLEY: The relevance, Your Honor, is of some of the statements that were made in connection with the bill, which I'll be glad to show the court in side-bar.

THE COURT: You mean by members of the subcommittee?

MR. BLEAKLEY: Pardon me?

THE COURT: You mean statements by members of a subcommittee?

MR. BLEAKLEY: Yes.

THE COURT: Well you'll have to come up and show me that.

MR. CIRESI: What's the exhibit number?

MR. BLEAKLEY: It is Exhibit BYS000016.
 

BY MR. BLEAKLEY:

Q. Now during this period; that is, the 1970s, did the state legislature in the state of Minnesota actually enact any legislation dealing with smoking-and- health issues?

A. Yes, they did.

Q. Can you give us an example.

A. Probably the most significant piece of legislation enacted in the 1970s was the piece of legislation enacted in 1975, the Minnesota Clean Indoor Air Act. It was introduced in '73 but passed in '75.

Q. And what did this statute provide?

A. This statute provided that public spaces be segregated for smokers and non-smokers so that non-smokers would be able to enjoy public spaces. Public spaces were defined in terms of restaurants and other kinds of public areas as well.

Q. And how did the Minnesota Clean Indoor Air Act come to be passed?

A. It was a major activity on the part of advocacy groups, but the primary mover of the Minnesota Clean Indoor Air Act was representative Phyllis Kahn, who indefatigably worked to make sure the bill was passed. I wouldn't say she singlehandedly was responsible for it because nobody in the legislature is singlehandedly responsible for anything, but she was very instrumental in arranging coalitions, getting interested people to -- to work for the bill, getting the advocacy groups to support the bill, and thus was in the final analysis successful.

Q. What kind of advocacy groups did Representative Kahn get to --

A. Pardon me?

Q. What kind of advocacy -- advocacy groups was Representative Kahn successful in getting to endorse this?

A. The formal advocacy groups that were attached to the various different health clauses, Cancer Society, Lung Society, Heart Society, et cetera, et cetera, plus informal groups like Committee for a Smoke-Free Society, a group headed by Jean Rosenbloom called Committee for Non-smokers Rights and things of that nature.

*25 Q. Were such groups active in the state of Minnesota during this period?

A. Pardon me?

Q. Were such groups active in the state of Minnesota during this period?

A. Yes, they were.

Q. Were any prominent individuals endorsing and supporting this bill?

A. Oh, yes.

Q. Can you give me an example or two.

A. Yes. The former Surgeon General of the United States, Steinfeldt, was in fact brought in as a witness in committee hearing to testify on behalf of the bill.

Q. Would you turn to tab 55 in the second book, which is Exhibit BYB000482.

A. I have it in front of me.

Q. BYB000482 is the House File 281, the state of Minnesota, House of Representatives, Health Subcommittee of the Health & Welfare Committee dated February 22, 1974.

A. That's the hearings held that day, yes.

Q. And does that include the testimony of former U.S. Surgeon General Dr. Jesse Steinfeldt?

A. Jesse Steinfeldt's testimony is there described, yes.

MR. BLEAKLEY: Your Honor, we would move the admission of Exhibit BYB000482.

MR. CIRESI: Your Honor, the exhibit that I have is not an official transcript of the House of Representatives, so I have no way of verifying its accuracy. There is a --

We would have no objection to the official transcript.

THE COURT: Do you have a --

MR. BLEAKLEY: I'm sorry, Your Honor, this is the only transcript I have. I have no reason to believe that it was not complete and accurate.

THE COURT: Well I'll allow it provisionally, but I do want it checked against the official transcript to make sure it is complete and accurate.

MR. BLEAKLEY: We'll do that, Your Honor.

THE COURT: All right. Otherwise BYB000482 will be allowed.

BY MR. BLEAKLEY:

Q. Would you turn to page two of Exhibit B -- BYB000482.

A. I have page two in front of me.

Q. And Dr. Steinfeldt's testimony begins there; is that correct?

A. Dr. Steinfeldt's testimony begins at the top of -- practically at the top of the page.

Q. Would you read to the jury, Professor Berman, the testimony of Dr. Steinfeldt that begins near the top there with the words "Unequivical data...?"

A. Yes.

"Unequivical data have demonstrated that the cigarette smoker has a far higher morbidity and mortality from cancer, heart disease, and diseases of the lung than the non-smoker. It has also been demonstrated" --

Q. That's all right.

A. I'm sorry? That's enough?

Q. I just wanted you to read to there.

Now could you move down to near the bottom of that paragraph --

A. Yes.

Q. -- to the sentence that begins "There is no doubt...?"

A. Yes, I have it in front of me.

Q. Would you read that to the jury, please.

A. "There is no doubt in my mind that in some future time a healthier group of humans will look back with horror and amazement on these three or four centuries when people voluntarily committed a slow form of suicide through smoking and foisted a noxious environment upon the non-smoking companions. These future citizens will regard ours as a primitive, unhealthy, unintelligent era inexplicable except for the greed of those who manufacture cigarettes and to the governments who derive revenue from taxation thereof."

*26 Q. And this was testimony that was given by former Surgeon General Steinfeldt in support of the Minnesota Clean Indoor Air Act; is that correct?

A. Yes, it is.

Q. Would you --

Now in the course of your research in this matter, did you find evidence that the public immediately accepted the Minnesota Clean Indoor Air Act?

A. The public was reluctant to accept the Minnesota Clean Indoor Air Act at the beginning. Its enforcement was sporadic, to say the better -- to say the least.

MR. CIRESI: Your Honor, I -- excuse me. I'm going to move to strike that. There's no foundation for his testimony.

THE COURT: You'd have to lay a foundation for that statement.

BY MR. BLEAKLEY:

Q. And what evidence did you find regarding the public's acceptance of the Minnesota Clean Indoor Air Act?

A. There were constant references to the failure of enforcement or the difficulty of enforcement in the press. There were also statements in legislative hearings and legislative sessions and in subsequent discussions. There were discussions of that in official bulletins of the Department of Health, and in eventually a plan that came to be developed by the Department of Health in the next decade.

Q. Did the --

MR. CIRESI: Excuse me. I'm going to move to strike, it implicates the prior court's order.

THE COURT: Okay. With respect to the bulletins that he examined and the newspaper accounts, I'll allow the answer; the balance of the answer will be stricken.

BY MR. BLEAKLEY:

Q. During the course of your research in this matter, did you see any evidence that during this period of time; that is, in the 1970s, that the state of Minnesota was aware of the potential for increased health-care costs as the result of smoking?

A. Yes, I did.

Q. Can you give us an example.

A. Yes. There were constant discussions of the increased health-care costs brought about by the diseases brought about by smoking, references in various different publications by the Department of Health, and newspaper accounts as well that dealt with that.

Q. Let me refer you to tab 78 in your book, which is Exhibit BYL000137.

A. I have it in front of me.

Q. This is dated 1977, it's a House Bill 1169, to increase the excise tax on cigarettes and dedicate the increase to health programs.

A. That's correct.

Q. See that?

Is this one of the documents that you found during the course of your research in this matter?

A. Yes, it is.

MR. CIRESI: Excuse me. Excuse me, Your Honor. Again this implicates a court order.

MR. BLEAKLEY: May we approach, Your Honor? It will just take a second.

THE COURT: Was this legislation passed?

MR. BLEAKLEY: Pardon?

THE COURT: Was this legislation passed?

MR. BLEAKLEY: No. But that's not the point for which I'm introducing it.

MR. CIRESI: It's in direct violation of the court's order.

MR. BLEAKLEY: The purpose --

THE COURT: All right.

*27

BY MR. BLEAKLEY:

Q. Now you referred a few moments ago in your testimony about the Minnesota Clean Indoor Air Act, Professor Berman, to subsequent legislation.

A. Yes.

Q. And to what legislation were you referring?

A. I was referring to legislation that was passed -- that eventually sought to enforce the Minnesota Clean Indoor Air Act that was passed 10 years later in 1985. It was called The Omnibus Smoking and Health Act.

Q. And is that statute part of what was also known as The Minnesota Plan?

A. That is correct. It grew out of The Minnesota Plan, which was published a year before.

Q. All right. Could you tell the ladies and gentlemen of the jury what The Minnesota Plan was.

A. The Minnesota Plan was a plan put together by an advisory committee that was appointed by the Minnesota Department of Health, and particularly its committee on smoking and health, which consisted of health-care professionals, educators, I guess representatives from different advocacy groups, University of Minnesota people, people like that. It was designed to look at the totality of the experience of the enforcement of smoking regulations in the state of Minnesota and to look at the problem of the interrelationship of smoking and health and to see what can be done about it in terms of some kind of comprehensive plan.

The advisory committee came to the conclusion that the emphasis in Minnesota should be on the benefits of non-smoking rather than on the evils of smoking. It said specifically that the -- that the benefits of non-smoking would be more effective as a tool of getting people either not to start smoking or to quit smoking. To this end it came up with 39 different recommendations.

Now obviously I'm doing this by memory, so please don't hold me strictly accountable for this. So my -- you know, I'm pretty good, but still --

Q. Let me -- let me stop you there and I'll give you a chance.

A. Sorry?

Q. Let me stop you there and I'll give you a chance --

A. Okay.

Q. -- rather than making you remember all 39 off the top of your head.

A. I won't remember all 39, I can promise you that.

Q. Let me refer you for a moment to tab 65, which is BYL000288, which is a document entitled "MINNESOTA DEPARTMENT OF HEALTH, DISEASE CONTROL NEWSLETTER."

A. Yes. I have it in front of me.

Q. And does this document refer to the committee of public health experts --

A. It does.

Q. -- that you pointed out a moment ago?

Wait until I answer my -- I finish my question.

Is that correct?

A. It does.

Q. And this is a publication of the Minnesota Department of Health?

A. It is.

MR. BLEAKLEY: Your Honor, we would move the admission of BYL000288.

MR. CIRESI: No objection, Your Honor.

THE COURT: It will be received into evidence.

BY MR. BLEAKLEY:

Q. And if you turn your attention --

*28 That's the Minnesota -- that's the newsletter there, Professor Berman?

A. Yes.

Q. Up there on the screen?

A. Ah --

Q. Would you --

A. Yeah. I can see -- I see it better here on --

Q. Okay.

A. -- here than on the screen.

Q. Would you turn your attention to page three --

A. Uh-huh.

Q. -- of this document.

A. Yes, I have page three in front of me.

Q. And does that describe cigarette smoking as the number one health problem?

A. It does.

Q. And it was --

This committee, then, developed what you have described as The Minnesota Plan; is that right?

A. That is correct.

Q. Now would you turn your attention to tab 66, which is Exhibit BYB000274, a document entitled "The Minnesota Plan for Nonsmoking and Health, Report and recommendations of the technical advisory committee on nonsmoking and health, Minnesota Department of Health, September 1984."

A. That's correct.

Q. And is that The Minnesota Plan to which you referred?

A. That is exactly The Minnesota Plan.

MR. BLEAKLEY: Your Honor, we move the admission of BYB000274.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYB000274.

BY MR. BLEAKLEY:

Q. Now does the first part of this document summarize the accumulated research and evidence regarding the health risks of smoking?

A. Yes.

Q. And then the second half or so contains the 39 -- 39 recommendations?

A. It does.

Q. And these recommendations include education?

A. Yes.

Q. Regulation?

A. Yes.

Q. Economic incentives and disincentives?

A. Yes.

Q. Including taxes.

A. Including taxes, yes, sir.

Q. And areas where more evaluation was needed; is that right?

A. That's correct.

Q. You can see The Minnesota Plan was a very large document, but the plan was also summarized in an executive summary; was it not?

A. That is correct.

Q. And where is that executive summary?

A. Executive --

It's right at the beginning of the -- of the plan. It's -- it follows the -- the -- follows all the introductory matter. Executive summary starts right after the statement of who was on the center for non-smoking and health committee staff.

Q. And would you turn your attention to the executive summary and to -- in particular, to the text of the executive summary which begins at page seven.

A. Yes.

Q. And can you summarize for us some of the recommendations that were made by the Department of Health advisory committee that are described in the executive summary.

A. Yes. First of all it finds that cigarette smoking is the major cause of health problems in the United States, major preventable cause of mortality, and it says non-smoking in Minnesota would improve the health, it says in the executive summary. Non-smoking Minnesota would save dollars, says the executive summary. And then it goes on with a plan of action on page nine. That plan of action is, in effect, a summary of what was later the 39 recommendations.

*29 The plan of action consists of a number of parts. One part dealt -- deals with the recommendations on school and youth education, and there are specific comments on that, on how that could be improved. There is another section on promotion of non- smoking through marketing and communication techniques, how to use public communications, the media, television, radio, the press and other forms of dissemination of information.

The third section of that deals with public and private regulatory measures to establish model non-smoking programs, encourage model programs in different work sites, urge health and public health facilities to be smoke-free by 1990, and goes on to enforce the Minnesota Clean Indoor Air Act in the work place and to develop uniform rules for implementing the Minnesota Clean Indoor Act at the work place, encourage restaurants to expand non-smoking spaces; in other words, to improve the enforcement of and expand the impact of the Minnesota Clean Indoor Act.

The next thing deals with economic incentives and disincentives for smoking. Under this rubric the plan calls for an increase in the state excise tax of cigarettes by 10 cents per pack and to declare further increases in the future, to encourage Congress to maintain and increase current federal cigarette taxes, provide funding for non-smoking programs from a variety of sources, to encourage life, health and disability insurance discounts for non- smoking and publicize their availability, to encourage homeowner discounts for non-smoking households, other insurance benefits, develop other economic incentives, advise employees of many health insurance programs that cover -- should cover and do cover smoking-cessation costs, to publicize the energy costs saved in non-smoking buildings. These are the incentives and disincentives that are listed there.

And then information needs in the last segment, provide research information on smoking and its control, provide educational materials, conduct scientifically designed annual telephone surveys to assess the smoking rates in Minnesota and to evaluate the smoking impact, and to provide evaluation assistance to community non-smoking campaigns and other survey work as needed.

This executive summary isn't what -- is what The Minnesota Plan recommended as a plan of action, not a plan just of contemplation.

Q. Let me ask you to turn your attention for just a second to paragraph 69 of The Minnesota Plan.

A. Page 69?

Q. Yes. Do you see that?

A. Yes, I do.

Q. Page 69 there begins a section entitled "ECONOMIC COSTS ATTRIBUTABLE TO CIGARETTE SMOKING IN MINNESOTA," do you see that?

A. That is correct.

Q. And in this section does the state use several statistical models to attempt to quantify increased medical costs - -

A. It does.

Q. -- caused by smoking?

A. In fact there's three --

Q. Let me finish my -- let me finish my question.

-- to quantify increased medical costs caused by -- caused by smoking; is that correct?

*30 A. That is correct.

Q. Now you said that this Minnesota Plan was a document recommended by the state Department of Health. What happened to The Minnesota Plan?

A. The Minnesota Plan became the basis for a comprehensive omnibus bill that was introduced into the legislature the next year.

Q. And was the --

A. Pardon me?

Q. And was The Minnesota Plan enacted into law in exactly the form recommended by the Department of Health?

A. No, it was not.

Q. What were some of the differences between The Minnesota Plan and the bill that was ultimately enacted?

A. The Minnesota Plan recommended a certain level of excise taxes. The actual excise taxes passed was much lower than that. The Minnesota Plan recommended --

MR. CIRESI: Excuse me. Excuse me, professor. I'm going to move to strike that, Your Honor.

THE COURT: Okay. The last answer will be stricken.

MR. BLEAKLEY: Your Honor, may we have a brief side-bar on that?

THE COURT: Let's move on.

BY MR. BLEAKLEY:

Q. What other provisions of The Minnesota Plan as recommended by the state Department of Health were not enacted into law, if any?

A. Well there --

What was recommended was not all enacted into law, but the Minnesota Clean Indoor Act was in fact improved. The -- the --

Certain provisions were made: use some funds for health education, to use some funds for the purpose of getting the kind of public dissemination of information out there. These are the kinds of things that were passed.

Q. Now you testified earlier that former U.S. Surgeon General Steinfeldt testified in support of the Minnesota Clean Indoor Air Act. Did any prominent individuals such as that testify before the Minnesota -- Minnesota legislature in connection with The Minnesota Plan?

A. Yes.

Q. Who?

A. Here it was not just the former Surgeon General, but the acting -- the existing Surgeon General of the United States at that time, C. Everett Koop came to Minnesota to testify on behalf of the omnibus bill.

Q. Would you turn to tab 67 in your book, please.

A. Uh-huh.

Q. This is Exhibit BYS000936.

A. I have it in front of me.

Q. This is the state of Minnesota House of Representatives, House -- House Health and Human Services Committee, March 14, 1985 transcript; is that correct?

A. That's correct.

Q. And does this transcript include the testimony of Surgeon General Koop?

A. It does.

Q. Before the -- before the Minnesota legislature?

A. It does.

MR. BLEAKLEY: Your Honor, we move the admission of Exhibit BYS000936.

MR. CIRESI: Again, Your Honor, I don't believe this is an official transcript. We need to check that. Because they are tapes, I believe.

THE COURT: All right. The court will receive BYS000936, but would ask counsel to check to make sure that this is an accurate transcription of that.

MR. BLEAKLEY: We will do that, Your Honor.

THE COURT: All right.

*31 BY MR. BLEAKLEY:

Q. Would you turn over to page six of this transcript.

A. Page?

Q. Page six.

A. Six.

Q. Bates number down at the bottom LT1037.

A. Yes, I see it.

Q. And this is some of the testimony given by Surgeon General Koop?

A. It is.

Q. And would you read the paragraph that begins with the words "But I understand...?"

A. Yeah. "But I understand from a report of the advisory committee to the Minnesota Department of Health that the figures for your state are just as disturbing, an estimated 5,000 smoking- related deaths each year, and as many as 39,000 person years of disability annually from smoking-related illnesses, and an estimated 340 million dollars each year to take care of the medical needs of smokers who have lung cancer, stomach cancer, chronic obstructive lung disease, and a variety of smoking-related cardiovascular and cerebrovascular diseases as well."

MR. BLEAKLEY: Your Honor, I need, I promise, just about 30 seconds for a side-bar on an issue that I wanted to raise with the court.

THE COURT: You're on the clock.
 

THE COURT: Ladies and gentlemen of the jury, you are excused for the day. We'll see you tomorrow morning at 9:30.

THE CLERK: All rise.

(Jury leaves the courtroom.)

(The following proceedings were held in

open court without the injury present.)

THE CLERK: Please be seated.

MR. BLEAKLEY: Your Honor, could I ask for a very short recess to consult with counsel about the boundaries of the proffer? It won't take very long.

THE COURT: Okay. Last time it was a 30-second job. Is this going to be 45, or --

Give me --

MR. BLEAKLEY: Five minutes.

THE COURT: Five minutes. All right. Let's take a short recess.

THE CLERK: Court stands in recess.

(Recess taken.)

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

(Judge enters the courtroom.)

THE CLERK: Please be seated.

THE COURT: Well my clerk comes back and announces "They're all arisen," so I thought I better come.

MR. BLEAKLEY: I'm sorry, I didn't hear that.

THE COURT: My clerk came back and told me "They're all arisen."

(Laughter.)

THE COURT: Go ahead, counsel.

MR. BLEAKLEY: Thank you, Your Honor. At this time the defense would like to make a proffer on some of the subject matters that were discussed at side-bar, and as to which either the court ruled against the admissibility or in which there was some lack of clarity, at least in my mind, about whether we would be permitted to do it or not. And I'd like to begin --

THE COURT: Well I would be happy to clarify it.

MR. BLEAKLEY: I'm sure you would, Your Honor.

THE COURT: Okay.

MR. BLEAKLEY: That's part of the purpose of the proffer. I'd like to go back to the questions that I asked Professor Berman about the bill introduced by Senator Humphrey, then Senator Humphrey back in 1974.

*32 BY MR. BLEAKLEY:

Q. What is your understanding of the legislation that was introduced by --

A. Which legislation? I'm sorry.

Q. What is your understanding of the legislation that was introduced in 1974 by Attorney General Humphrey?

MR. CIRESI: Your Honor, I'm going to object --

A. My --

MR. CIRESI: Excuse me, professor. This is not the issue that was addressed at side-bar for the proffer of proof.

THE COURT: This --

MR. CIRESI: The court was very clear on this issue.

THE COURT: This is a new issue, counsel. This was not the proffer that you suggested.

MR. BLEAKLEY: One of. These issues are all interrelated, Your Honor. The point of this proffer, starting with the bill introduced by Attorney General Humphrey, was when that bill was introduced and the reasons why and the background to its introduction, and the state correctional facility -- juvenile correctional facilities allowing juveniles to smoke, are all reflective of the fact that the state of Minnesota, like most other state governments in the United States, was and continued to grapple with the issue of what to do about smoking and health. That the state, like every other state, was faced on the one hand with a desire to do something about the health costs of smoking, and on the other hand recognize and acknowledge the rights of people to continue to smoke. That that has been a difficult decision, and that that decision has resulted in a plan that the state has adopted -- started adopting shortly after it repealed the ban on the sale of tobacco in the state of Minnesota in 1913, has continued from then until today, and that is a plan that has balanced, with a shift in the balance through the years, allowing the sale and consumption of cigarettes in this state, regulating the sale of cigarettes in this state, and taxing the sale of cigarettes. And it has changed and it's difficult. And that is in itself a predicate for an introduction to an essential element of our defense in this case, which is that the state has known that there were health costs associated with smoking for years, many, many years. And it's not just a statute-of-limitations issue, it goes to the fundamental claims that the state is making in this case. And that the state of Minnesota made choices - - and we're not criticizing the choices, we're describing them, we're laying -- want to lay them out before the jury in this case - - and those choices included, among other things, the extent of regulation, and they included, among other things, a decision to levy excise taxes and to profit from those excise taxes. That the state considered earmarking some of those excise tax funds for health- care costs, but didn't do it, chose not to do it as it had the right to do. That the state proposed and seriously considered raising excise taxes for the purpose of earmarking funds for health-care costs, but had to balance at the same time the fact that an increase in the excise tax would result in reduced revenues, and competing with that was the interest of anti-smoking groups. And most particularly and most importantly in 1985 in The Minnesota Plan, a desire, a specific proposal by the proponents of The Minnesota Plan to raise the excise tax to a level that would actually discourage smoking. All of those issues --

*33 THE COURT: This witness is going to be testifying to all this then?

MR. BLEAKLEY: No, that's -- those -- that's my closing argument that I suspect Your Honor --

THE COURT: It sounded like -- it sounded like a closing argument. We're a little premature, however, unless the defense has rested.

MR. BLEAKLEY: No, Your Honor, but this is our first witness and I have to start somewhere.

THE COURT: Okay.

MR. BLEAKLEY: What this witness can do --

THE COURT: Maybe you should start at the beginning rather than at the end.

MR. BLEAKLEY: What this witness can do, he's an expert historian that has been studying this matter in great detail. He knows about the bills that were introduced by Attorney General Humphrey, he knows about the struggle that the state was going through because he's a historian and has looked at it, and that's what historians do. He knows that the state was in fact grappling with these difficult issues. He knows from his --

May I finish, please, Mr. Ciresi?

MR. CIRESI: Well Your Honor --

MR. BLEAKLEY: I would like to finish.

MR. CIRESI: I would like to say one thing.

I would like the witness to leave, then, if he's going to talk about what his testimony is going to be and attempt to coach the witness while he's making a final argument. I raised a point with regard to one issue, and that was this bill which was dealt with precisely and concisely at the side- bar. Counsel is simply on a filibuster.

THE COURT: Why don't you just have the witness say what he's going to say and then I can decide whether I'm going to allow it. This is my understanding of what a proffer properly is.

MR. BLEAKLEY: Well I started to do it and Mr. Ciresi objected and Your Honor asked me what I was going to do and I answered the question.

THE COURT: Well you answered more than my question, you answered everyone's question.

MR. BLEAKLEY: Well Your Honor --

THE COURT: Do you want to just tell me what this witness is going to say, and then I can decide whether I'm going to let him say it?

MR. BLEAKLEY: I would be happy to.

THE COURT: Why don't you do that.

MR. BLEAKLEY: Mr. Ciresi objected.

THE COURT: Well did I rule on his objection?

MR. BLEAKLEY: No, you didn't, Your Honor.

THE COURT: You see, the idea is to let me rule on it, and then maybe you won't have to go into a filibuster.

MR. BLEAKLEY: I'll shut up.

THE COURT: Okay. Let's ask him, find out what he's got to say.

MR. BLEAKLEY: Okay.

MR. BLEAKLEY: Mr. Stirewalt, can you find the question before the colloquy?

(Record read by the court reporter.)

THE WITNESS: May I answer that question now?

THE COURT: Yes. Now that I have a chance to rule, you may answer.

THE WITNESS: Thank you.

THE COURT: Go ahead.

A. Senator Humphrey and other members of the state legislature were confronted with the reality of a particular problem. That particular problem was in fact that throughout Minnesota many young people, minors, did smoke, that many young people, minors, did smoke on school grounds, that many minors, young people, smoked in school latrines and bathrooms. This was a problem that state Senator Humphrey wanted to confront, and I think he wanted to confront it in a manner that he could at that particular time. And one solution -- I'm not saying that was the only solution, but one solution, a solution that he came up with, which wasn't passed, was a solution that would in fact set aside smoking areas for young people in the high schools so that they wouldn't in fact create the problem of ubiquitous smoking in the -- on school grounds. I think that was the motivation for the introduction of the bill. I think it's a -- it's an understandable one, a defensible one, and I think it makes it possible for me here to emphasize what I emphasized yesterday, that historians are in fact attempting to avoid present-mindedness when they look at the historical past. And looking at 1974 through 1974 eyes, you get a different vision of what took place than if you look at 1974 through 1998 eyes. And I think that's the way I would answer your question.

*34 MR. CIRESI: Excuse me. I would move to strike it. There's no foundation. Then Senator Humphrey did not testify. So what Mr. Berman has said here today is rank speculation.

MR. BLEAKLEY: I thought this was a proffer, Your Honor.

MR. CIRESI: Well there's no foundation for the proffer, Your Honor.

THE COURT: Go ahead, continue your questioning.

MR. BLEAKLEY: Thank you, Your Honor.

BY MR. BLEAKLEY:

Q. Now --

THE COURT: I'll take these -- your objections under advisement. I just want to hear what he has to say, and then I'll decide what and how much I'm going to let him say.

Q. When you take into account the legislation that was proposed by Senator Humphrey, together with the fact that juveniles were being allowed to smoke in the state juvenile correctional facilities, what is the significance of those two facts to the opinions that you have in this case?

A. It in essence reinforces what I said before, that in fact this was a major problem, and responsible people were in fact wrestling with this problem of young people smoking. They are responsible people and they try to do their best under the circumstances. And in terms of the people operating the correctional facilities, their best, they believed, was allowing smoking in certain -- under certain conditions.

Legislators decided that the best they could do was to perhaps minimize the impact, the negative impact of youth smoking by at least allowing some of it. And that's essentially what I think I would conclude from those two elements.

Q. Now subsequently I asked you whether or not you saw any evidence during this period; that is, during the 1970s, that the state was aware of the potential for increased health-care costs attributable to smoking. Do you remember that question?

A. Yes, I do.

Q. And I showed you the document that appears at tab 78, that is Exhibit BYL000137.

A. Yes.

Q. Which was a bill to increase the excise tax on cigarettes and dedicate the increase to health programs.

A. That's to increase the health-care -- the excise tax based on tar content of cigarettes, and then to use the proceeds in part for health-care costs.

Q. And would you refer to paragraph six of the proposed findings that appear in this exhibit; that is, BYL000137.

A. Yes.

Q. And that reads -- that reads, "The state of Minnesota spends a significant portion of its health care funds for the prevention, alleviation and cure of diseases related to cigarette smoking."

A. That's correct.

Q. Now what -- how is this bill --

Let me ask you this: Were there other bills that were introduced during the state legislature during the '70s and the '80s proposing increases in the health-care -- in the excise tax?

A. Yes, there were.

Q. And were these bills --

Is this bill representative of those other bills?

A. Except for the fact that it tied the increased excise tax to the tar content of cigarettes, it's representative.

*35 Q. Would you turn to tab 72 in your book, which is a demonstrative exhibit.

A. I have it in front of me.

Q. Demonstrative Exhibit X2701. And does demonstrative Exhibit X2701 summarize the bills that were introduced during this period in which there was a proposed increase in cigarette excise taxes, some portion of which would be earmarked for health-care expenses?

A. That is correct.

Q. Now let's turn to The Minnesota Plan.

Did The Minnesota Plan include a proposal for an increase in excise taxes?

A. Yes, it did.

Q. And did the proponents of The Minnesota Plan explain the reason why they wanted to --

How much did they want to increase the excise tax?

A. The plan itself called for a 15-cents-per-pack increase.

Q. And what explanation did the proponents of the 15-cent increase in excise taxes give for the increase?

A. They believed that that size of --

THE COURT: Excuse me. Excuse me. What do you mean by "proponents?" Are you talking about legislators, or are you talking --

MR. BLEAKLEY: I'm talking about The Minnesota -- I'm talking about The Minnesota Plan, Your Honor, the state Department of Health, the advisory committee for the state Department of Health that created The Minnesota Plan.

THE COURT: Okay. I think you should clarify that.

MR. BLEAKLEY: Okay.

THE COURT: Because it makes a lot of difference.

MR. BLEAKLEY: I certainly will, Your Honor.

BY MR. BLEAKLEY:

Q. Did the advisory --

Let's take a look at The Minnesota plan.

A. Yes.

Q. And that -- that is --

A. Tab 66.

Q. Tab 66. And The Minnesota Plan was drafted by an advisory committee for the state Department of Health; is that correct?

A. That's correct.

Q. And did the advisory committee and the Department of Health in this Minnesota Plan propose a specific increase in the excise tax?

A. Yes, they did.

Q. And that was --

A. Fifteen --

Q. -- 15 cents per pack?

A. That is correct.

Q. And did they state the reasons why they were proposing a 15- cent increase in the excise tax?

A. Yes, they did.

Q. And what reason did they give?

A. It listed --

It's listed under the incentives, economic incentives and disincentives. The reason given is that an increase of that magnitude would have the effect of lowering the consumption of cigarettes in the state of Minnesota.

Q. And was the --

THE COURT: Counsel, could you --

Is he reading from the reports here? Could you cite that for me, please?

MR. BLEAKLEY: I'm sorry, I couldn't hear, Your Honor.

THE COURT: I wonder if you could cite that provision for me. I've lost that.

MR. BLEAKLEY: It's 10 cents. It's 10 cents per --

THE WITNESS: I'm sorry, 10 cents, I misspoke. Ten cents. Sorry, I misspoke.

THE COURT: Okay.

THE WITNESS: And -- but also it included periodic increases in future years. That would have the desired effect.

Q. All right. Let's find the section in the plan itself where the Department of Health and the advisory committee proposed an increase of 10 cents per pack. And that is at page -- what page is that? At page 148.

*36 A. Uh-huh.

Q. Is that correct?

A. That is correct.

MR. BLEAKLEY: Does Your Honor have a copy of that?

THE COURT: Pardon me?

MR. BLEAKLEY: Do you have a copy of that, Your Honor?

THE COURT: Yeah, I've got it right here.

MR. BLEAKLEY: Okay.

THE COURT: Yeah.

BY MR. BLEAKLEY:

Q. "RECOMMENDATIONS FOR ECONOMIC INCENTIVES AND DISINCENTIVES?"

A. Yes.

Q. "RAISING THE COST OF SMOKING?"

A. Yes.

Q. And the recommendation is "The State of Minnesota should increase the existing 18-cent excise tax on cigarettes by 10 cents during fiscal year 1986." And "Subsequent annual 5- cent excise tax increases for the following 5-year period;" correct?

A. That is correct.

Q. And further on on page 148 they explain the public health rationale for increasing the state excise taxes; correct?

A. Yes.

Q. And would you read what that says in that paragraph.

A. "The public health rationale for increasing the Minnesota state excise tax on cigarettes is the reduction of smoking through raising the price of cigarettes. Cigarettes are comfortably affordable and readily available to the public. Studies in Canada have shown that the real price of cigarettes relative to inflation has generally declined since 1949. The real price in 1980 was 7.26 (setting 1949 as a hundred). More remarkable is the finding that cigarette price as a proportion of real disposable income has plummeted in these three decades to a value of 30.1 in 1980 (setting -- setting 1949 as a hundred). Thus, cigarettes have become relatively more affordable over time.

"In Minnesota, the real price of cigarettes relative to inflation has fluctuated within a relatively narrow range during the past 30 years. Relative to reference year 1967, the price of cigarettes has remained relatively stable throughout this time period. This price stability is evident in the data presented in Table 1...."

Q. Okay. Now in the course of your research in this --

Let me ask you first: Was the 10-cent proposed increase in excise taxes, did that become part of the law?

A. No, it did not.

Q. And what was the amount, if any, of the excise tax increase that was enacted in 1985?

A. The Governor recommended seven cents. The legislature passed five cents.

Q. In the course of your research in this case, did you -- were you able to determine the reasons why the 10-cent tax increase was not adopted?

A. Yes.

MR. CIRESI: Objection, no foundation.

Q. Now would you turn to tab 69 in your book.

A. Uh-huh.

Q. This is an article --

MR. CIRESI: May we have the exhibit number?

MR. BLEAKLEY: I'm sorry, it is Exhibit BYB000405.

Q. This is an article that appeared in the autumn 1986 Journal of Public Health Policy; is that correct?

A. That is correct.

Q. And the authors of that article were James M. Schultz, Michael Moen, Moen, Terry Pechacek, Kathleen Harty, Mark Skubic, Stephen Gust and Andrew Dean; is that right?

*37 A. That is correct.

Q. Were any of those authors of that article people who were involved in developing The Minnesota Plan?

A. They were all involved in Minnesota -- in developing The Minnesota Plan.

MR. BLEAKLEY: I'd note for the record, Your Honor, that Kathleen Harty and Andrew Dean are witnesses who were employed by the state who have been designated as witnesses by deposition in this case and whose testimony would be on these -- some of these subjects as well.

BY MR. BLEAKLEY:

Q. Now would you turn on page 306.

A. I have it in front of me.

Q. Well let me -- let me first say this. Does this article, beginning on page 304, describe from the viewpoint of several individuals who were involved in The Minnesota Plan the highlights of the legislative process?

A. It does.

Q. And did you review this article as a part of your research?

A. I have.

Q. And does this article form a part of the basis for the opinions that you would express in this matter?

A. It does.

Q. And does it provide you with insight into the legislative process by which this statute was enacted?

A. It does.

Q. Now it states at the bottom of page 304, there's a section there entitled "Governor's support," do you see that?

A. I do.

Q. It says, "The non-smoking bill was introduced with strong support from the Governor...;" is that right?

A. That is correct.

Q. Would you turn over to page 305.

A. Yes.

Q. And the first full paragraph on that page.

A. Yes.

Q. Would you read that first full paragraph.

A. Yes. "Requested funding for non-smoking programs was equivalent to revenues generated by about a one-half cent increase in excise taxes, leaving substantial revenues to fund other projects. In February, 1985, the Governor announced his intention to raise the excise tax on cigarettes and use the majority of the revenues to fund state sewer projects."

Q. And so according to the authors of this article, all of whom were involved in the Minnesota plan and who are writing about the legislative process, say that the bulk of these funds were going to be dedicated to sewer projects; is that correct?

A. That's correct.

Q. Rather than to health care; is that right?

A. That is right.

Q. Or to education about smoking.

A. That is right.

Q. Okay. If you look down further on page 305, do you see a list of all of the people who supported this bill? Is that right?

A. That is correct.

Q. Which includes the Minnesota Coalition for a Smoke-Free Society 2000 --

A. Yes.

Q. -- and several other organizations?

A. Yes.

Q. Now would you turn over to page 306.

A. Yes.

Q. There's a paragraph there entitled "Opposition to the bill: the tobacco lobby." Do you see that?

A. I do.

Q. And it describes the efforts from the perspective of these people involved in the legislation regarding the efforts of the tobacco lobby?

*38 A. Yes, it does.

Q. And if you look at the paragraph that begins with the words "Prior to the Senate Finance Committee hearing...."

A. Uh-huh.

Q. Would you read that paragraph, please.

A. Yes. "Prior to the Senate Finance Committee hearing, postcard response forms in opposition to the bill were mailed by R. J. Reynolds, Incorporated to smokers throughout the state, preaddressed for mailing to senators on the committee. Fortunately, even a few letters or calls favoring the bill had as much impact as hundreds of the tobacco lobby's postcards."

Q. And would you read the first two sentences of the next paragraph.

A. Yes. "In the House, the bill faced a somewhat more difficult test. The bill was first referred to the House Tax Committee. The salient theme of the 1985 legislative session was tax deduction; a proposed tax increase on cigarettes was antithetical to that theme."

Q. And then would you read the first couple of sentences of the paragraph at the bottom of the page that begin with the words "A major portion...."

A. Right. "A major portion of the revenue from the cigarette tax was earmarked to pay for sewer construction projects. Wisconsin is threatening to sue Minnesota if the state does not take more aggressive action with regard to sewage discharge into the Mississippi River. The need to act on this issue in 1985 was instrumental in the legislature's decision to include the cigarette tax on the special session agenda. At the close of the special session, the provisions of the Omnibus Nonsmoking and Disease Prevention Act were absorbed into the largest single piece of legislation passed in Minnesota to date, a consolidated bill which prominently featured a one billion dollar cut in Minnesota's personal income taxes."

Q. Now would you turn over to page three -- at the bottom of page 307, excuse me.

A. Yes.

Q. And there's a section down there entitled "Cost-benefit analysis."

A. I see it.

Q. And would you read that paragraph, please. Not the entire paragraph, but the --

A. Okay.

Q. -- first couple of sentences of that paragraph.

A. Right. "Estimates of the absolute magnitude of smoking- attributable costs and development of cost- benefit arguments were strategic for presenting the case for non-smoking and health programming to the legislature." Should I go on?

Q. Yes, next sentence.

A. "In addition to the calculations of smoking-attributable costs, the economic 'benefits' of tobacco products were computed for Minnesota. An estimate of the maximum economic contribution of tobacco products to the state was calculated on a per-pack-sold basis using a liberal accounting of wholesale and retail sales income, state excise and sales tax, a portion of the federal excise tax returned to Minnesota in the form of state appropriations, and prorated advertising monies to the state, plus farm revenues for the tobacco acreage in the state. The outcome was that smoking-attributable costs not only overwhelmed this estimated tobacco -- estimate of tobacco 'income,' but greatly exceeded the value of total tobacco product retail sales in Minnesota. This type of detailed economic argument provided a particularly compelling justification for smoking control legislation."

*39 Q. So according to the authors of this article who were involved in The Minnesota Plan and the legislative process, the legislative process included a cost-benefit analysis of an excise tax increase; is that right?

A. That is correct.

Q. Took into account the loss of revenue to the state as well as what impact it might have on the level of smoking in the state.

A. That's --

Q. Is that correct?

A. That is correct.

Q. Now would you turn back to the bottom of page six -- 306 for just a moment.

A. 306?

Q. Yes.

A. Yes.

Q. I'm sorry, strike that.

In your opinion as a historian, if the legislature was so opposed to increasing taxes, why did they pass an increase at all?

A. For the very simple reason that the authors present in this article, that in fact there was a compelling reason to pass such an excise tax increase in order to cover the cost of sewage repair so that the state of Minnesota would not have a conflict, a legal conflict with the State of Wisconsin.

Q. And what is your understanding of the basis of the tobacco industry's opposition to the bill?

A. The tobacco industry's opposition to the bill was the usual opposition of the tobacco industry to any bill that would raise excise taxes, and it used its usual form of persuasion, as the authors here describe, or at least describe part of it, but they argue that it was not effective.

Q. And what is the significance of the fact that -- to the opinions that you have in this case of the fact that the proposed 10 point -- 10 percent -- 10-cent-per-pack excise tax increase was not adopted and a smaller amount was adopted?

A. Two things. One, that in fact in a tax-revolt year, which 1985 was, to pass any tax increase in the legislature was in fact remarkable. Two, that it was passed is based on the pressure of the Governor, and the reason the Governor put on pressure is because he wanted to avoid any problems with the State of Wisconsin because Minnesota sewers were in fact polluting the Mississippi River.

Q. Now you testified that the excise tax was first enacted in 1947; is that right?

A. That's correct.

Q. And how much was it then?

A. Three cents a pack.

Q. And would you describe very briefly the increases in the excise taxes.

A. Well it increased periodically and regularly, most rapidly in the '80s, and right now it's 48 cents per pack.

Q. And have you during the course of your research determined how much total revenue the state has received from cigarette excise taxes from 1947 to date?

A. Yes, I have.

Q. And would you --

Can I refer you to demonstrative -- first to Exhibit BYR000083.

THE COURT: Do you have a tab number here?

THE WITNESS: What tab is it?

MR. BLEAKLEY: It's tab 70. Sorry, Your Honor.

THE WITNESS: I'm sorry?

MR. BLEAKLEY: Tab 70.

THE WITNESS: Seventy? Yes, I have it.

MR. BLEAKLEY: BYR000083.

THE WITNESS: Uh-huh.

*40 Q. This is a tabulation of the annual receipts and disposition of Minnesota excise taxes --

A. It is.

Q. -- from 1977 to 1995?

A. That is correct.

Q. And what is the --

Now turn your attention, if you would, to demonstrative Exhibit X1115.

A. What tab is that?

Q. That's tab 71.

A. Uh-huh. Demonstrative Exhibit --

MR. CIRESI: Can we approach the side-bar for a minute, Your Honor? Your Honor, may we approach the side-bar for a minute?

THE COURT: That is a promise, counsel?

MR. BLEAKLEY: Have I broken one yet?

THE COURT: Um --

MR. BLEAKLEY: Today?

(Laughter.)

MR. BLEAKLEY: I'll limit it to today.

THE COURT: I can't think of any today.

BY MR. BLEAKLEY:

Q. According to demonstrative Exhibit X1115, how much in excise taxes has the state of Minnesota collected between 19 -- 1977 and 1995?

A. From '77 to '95, the total tax revenue calculated from the previous exhibit was 2,238,908,000 dollars, in round figures.

MR. BLEAKLEY: Okay, Your Honor, I have no further questions on my proffer. Obviously, I rushed through this, and -- but these are the subject matters which we would -- about which we would inquire. Obviously, subject to the court's order on any of the issues, it wouldn't come out exactly this way. I've been trying to do it in a summary fashion, and would it much more cautiously and deliberately.

THE COURT: All right. Let me give you some direction here or some guidelines in asking your questions.

This witness may not and is not qualified to second-guess the reason why the legislature passed legislation. Not only is this witness not qualified, there is nobody that I know of in the state of Minnesota, including the legislators, that are qualified to know why they did what they did, who the detractors were, what the lobbying was. That is not proper by any witness, and no one has that expertise. So he will not be allowed to testify as to the reasons legislation was passed by the legislature.

He cannot refer to legislation that was not passed as indicating what the legislature's intent was. He may refer to passed legislation that does in fact express the legislative spent.

He cannot refer to any offset of taxes against any claim for Medicaid. I've ruled on that. I think I ruled quite clearly on it. Whether you agree with me ruling or not, I don't plan to rule again. But I see, for example here in page 309, for example, they make specific reference to the use of excise tax, and that exhibit refers to using it for Medicaid costs, and that is in fact -- the jury is not here -- a direct violation of my order, because you cannot and I think you're well aware of the fact that you cannot offset excise taxes against the Medicaid costs, and I will not allow you to present that fact to the jury in any form.

He did refer to the smaller amount that was decided and his reason why he thought it was decided, and that's not -- that's not valid. He doesn't know and I don't know and we'll never know about why the legislature does what it does.

*41 And he cannot refer -- he cannot refer to the summary of the total excise tax, again because of my concern that you will try and use this to offset any claim for Medicare.

That's the guidelines I can give you. Tomorrow morning we'll proceed with the testimony, and I expect you to proceed within those guidelines.

MR. BLEAKLEY: May I have two questions?

THE COURT: Yes, you may.

MR. BLEAKLEY: Question number one --

THE COURT: Yes.

MR. BLEAKLEY: -- deals with the fact that a substantial amount of the funds that would be generated by the 1985 excise tax increase were earmarked for the sewer reconstruction project, and that -- that issue is particularly relevant because in testimony that was elicited from Mr. Merryman of The Tobacco Institute, the impression was left by Mr. Ciresi that a substantial amount of the excise tax increase against which the tobacco industry lobbied was going to be earmarked toward education, youth education programs, when in fact the bulk of the - - the overwhelming bulk of the funds were going to be used for sewer construction projects, and I would like at least to be able to elicit from Professor Berman in a way that does not implicate these other matters that that is in fact what was going to happen.

THE COURT: I don't have any problem if he just testifies as to the facts. The fact that a large amount of money was used for sewer projects, I don't have any problem with that.

MR. BLEAKLEY: We'll construct the question and answer very carefully so as not to implicate the court's ruling.

MR. CIRESI: But Your Honor, that is not --

THE COURT: Mr. Ciresi usually doesn't imply things, he's usually -- he usually says what he thinks.

MR. CIRESI: Yeah. Well Your Honor, I will check, I will check --

THE COURT: Don't you think so, Mr. Ciresi?

MR. CIRESI: I do indeed.

I will check the record to see whether that implication was left. Mr. Bleakley's rendition of that testimony is not -- does not square with my recollection with regard to how that issue arose. We will check that.

The problem with saying that it was going to be earmarked, that is embroiled in and engulfed in the legislative process. One does not know what other considerations were going on, where the bill was in markup, what one person was proposing as against another one to try to maneuver and get themselves into a position in the legislative process.

THE COURT: Do we know how much was used for this sewer project? I mean that's --

MR. CIRESI: No, we don't.

THE COURT: We don't know, we have no idea?

MR. CIRESI: And that's the point. This is only a proposed bill, and you have people giving their opinion as to what might have happened in the legislature, Your Honor. They can't testify to that any more than Professor Berman can.

THE COURT: Well my point is that I think he can say what the facts were, what happened. If money was allocated to a sewer project, he can say that, and he can give us what the percentage is.

*42 That's historical. I think that's within his purview. I don't have any problem with that.

MR. BLEAKLEY: We'll be very careful about that.

THE COURT: Okay. Let's get out of here.

MR. BLEAKLEY: Can I have -- can I raise my two other questions in the morning? I'm more than happy to do that.

THE COURT: More properly let's adjourn, but go ahead.

MR. BLEAKLEY: I'll raise them in the morning.

THE COURT: Okay.

MR. BLEAKLEY: I agree with you, it's late. Thank you.

THE CLERK: Court stands adjourned, to reconvene tomorrow morning at 9:30.

(Recess taken.)

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