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 26, 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. Professor Berman, when we broke yesterday, I was asking you some questions about legislation enacted by the state of Minnesota in the period after the Surgeon General's report. Do you remember that?
 A. Yes.
 Q. And in particular in the 1970s and 1980s; right?
 A. That's correct.
 Q. Did the state of Minnesota take any other governmental action during the 1970s and 1980s dealing with the smoking-and- health issue?
 A. Yes, they did.
 Q. Can you give us an example of such action.
 A. Yes. In the early '70s the city of Monticello, Minnesota, proclaimed D- Day, a non-smoking day; that is to say, a day when smokers would give up smoking for the day, and therefore the expectation was, the hope was that this would be the beginning of their quitting smoking for good.
 Q. Would you turn to tab 59 in your book, which is Exhibit BYB000191. It is a January 1974 newspaper article from the Minneapolis Star.
 A. I have it in front of me.
 Q. And is this a newspaper article reporting on the Monticello matter and D-Day that you just described?
 A. Yes, it is.
 Q. And this is a document that you found in the course of your research in this case?
 A. Yes.
 Q. And forms part of the basis for your opinions --
 A. Yes.
 Q. -- in the matter?
 MR. BLEAKLEY: Your Honor, we would move the admission of Exhibit BYB000191 on the same basis that we have offered other newspaper articles.
 MR. CIRESI: No objection, Your Honor.
 THE COURT: Court will receive BYB000191.
BY MR. BLEAKLEY:
 Q. And this is an article about D-Day; correct?
 A. It is.
 Q. And what did you say D-Day was?
 A. I'm sorry?
 *2 Q. What did you say D-Day was?
 A. D-Day was the -- proclaimed a day on which smokers, in this case the city of Monticello, Minnesota, would give up smoking for the day, with the hope and expectations that this would be the beginning of the end of smoking for at least some of them, maybe for all of them.
 Q. Did the Governor of Minnesota during this period of time also take any actions to deal with smoking-and-health issues?
 A. Yes, he did.
 Q. And what were those?
 A. He actually proclaimed D-Day for the whole state of Minnesota.
 Q. Would you turn to tab 56 in your book.
 A. Sixty-six?
 Q. Fifty-six.
 A. Fifty-six.
 Q. Which is Exhibit BYB000350.
 A. I have it in front of me.
 Q. And it's an office memorandum, state of Minnesota office memorandum dated December 26, 1974, to which there is attached a gubernatorial proclamation?
 A. Yes, it is.
 Q. And what is this document?
 A. This document is a -- a -- a --
 First, the cover is an announcement of a press conference that the Governor is going to have in which he will sign the proclamation; National Education Week on Smoking was exactly what he called it.
 MR. BLEAKLEY: At this time, Your Honor, we would move the admission of BYB000350.
 MR. CIRESI: No objection, Your Honor.
 THE COURT: Court will receive BYB000350.
BY MR. BLEAKLEY:
 Q. And the first page of this document is a memorandum announcing a press conference the Governor is going to have; is that right?
 A. Yes.
 Q. And proclamation declaring National Education Week on Smoking; is that right?
 A. That is correct.
 Q. And if you turn over to --
 The third page of this exhibit is the actual proclamation; is that right?
 A. That's exactly --
 That's the wording of the proclamation, yes.
 Q. And would you read the third whereas paragraph in the proclamation.
 A. The third?
 Q. Yes, the one that is highlighted --
 A. Yes.
 Q. -- on the screen.
 A. "WHEREAS, the Minnesota Interagency Council on Smoking and Health, and the Association for Non-Smokers' Rights are concerned with the health of the people of this state, particularly in light of the Surgeon General's report which linked cigarette smoking with major health problems such as cancer, heart, and lung disease, and" --
 Other whereases follow.
 Q. And would you just sum up by reading the "NOW, THEREFORE" paragraph.
 A. "NOW, THEREFORE, I, Wendell Anderson, Governor of the State of Minnesota, do hereby proclaim the week of January 11-17, 1975 as National Education Week on SMOKING, with emphasis on the rights of the non-smoker, and urge every citizen to support the non-smokers' Brill of Rights, which was passed by Congress on January 11, 1974."
 Q. Now would you turn over to tab 57 in your book, which is Exhibit BYS000486.
 A. I have it in front of me.
 Q. And can you tell us what that document is.
 A. This is the proclamation that the Governor signed actually proclaiming Minnesota D-Day.
 *3 Q. And what did --
 In that proclamation, what did the Governor say?
 A. Well the Governor repeats the whereases that -- essentially the whereases as before, but actually endorses the principle of having a day in the whole state of Minnesota, not only in Monticello, Minnesota, when smokers would cease from smoking, and again the hope and expectation was that this would be the beginning of the end.
 MR. BLEAKLEY: Your Honor, at this time we move the admission of Exhibit BYS000486.
 MR. BLEAKLEY: No objection, Your Honor.
 THE COURT: The court will receive BYS000486.
BY MR. BLEAKLEY:
 Q. Would you read the second whereas clause in -- in this document?
 A. Yes. "WHEREAS: smoking has been indicted by the United States Surgeon General and United States Health Agencies as a leading cause of death or disability from lung cancer, heart disease, emphysema, and chronic bronchitis; and" --
 Q. And then would you go down to the "NOW, THEREFORE" clause and read that as well?
 A. "NOW, THEREFORE, I, Wendell R. Anderson, Governor of the State of Minnesota, do hereby proclaim October 7th, 1974 as
 "MINNESOTA D-DAY
 "and urge every citizen of our state who may be a smoker to refrain from smoking on that day and to consider quitting the habit for good -- in this statewide undertaking that will" -- I can't make out that last word on that line, but anyway, "that will," I assume, show it "to the Nation what a responsible and dedicated citizenry can accomplish in confronting a hazard to health and general well being of all Minnesotans."
 Q. Now did Minnesota subsequently celebrate these D-Days?
 A. Yes.
 Q. And can you --
 What kinds of activities were done in connection with these D-Days, to your knowledge?
 A. Well annually, of course, there was a lot of publicity regarding D-Day and activities in a way getting people -- trying to convince people who were smokers to stop smoking at least for that day. On one occasion, in fact, D-Day was celebrated with a mock trial of tobacco.
 Q. And when was that?
 A. That was, I believe, in nineteen seventy -- no, 1985.
 Q. Would you turn to tab --
 A. '84 or '85.
 Q. Would you turn to tab 60 in your book, which is BYS00100.
 A. I have it.
 Q. And what is this?
 A. This is a newspaper article, the Pioneer Press Dispatch newspaper article from November 27th, 19 -- 22nd, 1985, which deals with the -- the mock trial.
 Q. To which you just referred?
 A. Pardon me?
 Q. And to which you just referred, the mock trial?
 A. Yes, to which I just referred.
 Q. And this was a document that you found during the course of your research?
 A. Yes, it is.
 Q. And it forms part of the basis for your opinions in this matter?
 A. Yes.
 MR. BLEAKLEY: Your Honor, we move the admission of Exhibit BYS000191 on the same basis that we admitted other newspaper articles of this sort.
 MR. CIRESI: We'd object, Your Honor, under 403.
 *4 MR. BLEAKLEY: I'm sorry, I gave the wrong number.
 THE COURT: I --
 MR. BLEAKLEY: BYS00100.
 THE COURT: I have a different number. I have BYS000100.
 MR. BLEAKLEY: That's correct.
 THE COURT: Okay.
 MR. BLEAKLEY: I gave the wrong number the first time.
 THE COURT: All right.
 MR. BLEAKLEY: We move the admission of BYS000100.
 THE COURT: All right. That will be admitted.
BY MR. BLEAKLEY:
 Q. And the article that is referred to is entitled "Rigged jury finds 'Tobacco-Mafia' guilty as charged;" is that right?
 A. That is correct.
 Q. And it describes this mock trial in -- sponsored by several non-smoking groups in Minnesota?
 A. It was, yes.
 Q. And actors portrayed the tobacco industry and -- as well as products in themselves where tobacco was accused of being addictive and causing illness; is that right?
 A. That's correct.
 Q. And who was the foreperson of this mock trial?
 A. The foreperson of the jury was Sister --
 Q. Foreperson of the jury, I'm sorry, yes.
 A. Of the jury, was Sister Mary Madonna Ashton, who was then the State Health Commissioner.
 Q. And would you turn to tab 61 in your book, which is Exhibit BYB000393, a document entitled "The People of the United States Versus The Tobacco Mafia, D-Day - November 21, 1985. Sponsors: American Lung Association of Minnesota, American Cancer Society, Minnesota Division."
 A. I have that in front of me.
 Q. And this is a transcript of the mock trial that was conducted; is that correct?
 A. Yes.
 Q. And is this a document that you found during the course of your research in this case?
 A. Yes, it is.
 Q. And forms a part of the basis for your opinions in the case?
 A. Yes.
 MR. BLEAKLEY: Your Honor, we move the admission of Exhibit BYB000393.
 THE COURT: Do you want to try that again?
 MR. BLEAKLEY: BYB000393.
 THE COURT: Not the number I have.
 MR. CIRESI: I don't have it either.
 MR. BLEAKLEY: Sorry. BYS --
 THE COURT: I have BYS --
 MR. BLEAKLEY: -- 000393.
 MR. CIRESI: Foundation and 402, Your Honor, relevance.
 THE COURT: Can you just tell us where you got this?
BY MR. BLEAKLEY:
 Q. Can you tell us what this document is, Professor Berman?
 A. It is a transcript of the actual mock trial that took place in St. Paul on that day, November 21st, 1985.
 Q. And this Mafia or mock trial, was it widely publicized in the press?
 A. Yes.
 Q. And open to the public?
 A. Yes.
 Q. And does it talk about the charges that tobacco causes illness and death?
 A. Yes.
 Q. And that tobacco is addictive?
 A. Yes.
 Q. And it forms part of the basis for your opinions in the matter?
 A. Yes.
 MR. BLEAKLEY: We move its admission, Your Honor.
 MR. CIRESI: Your Honor, the leading nature of the questions on a document that is not in evidence is improper. I move to strike. Secondly, it's not a state document and there's no certification that this is an accurate transcript.
 *5 THE COURT: Well that was the basis of my original question, where it came from, so we know it's accurate.
 MR. BLEAKLEY: Well Your Honor, this was a mock trial, so there is no official transcript or certification.
 THE COURT: Well I mean whose version is this? That's what --
 MR. BLEAKLEY: This is a version --
 THE COURT: I want some --
 Was this published in the paper or something, or where did you pick it up?
 MR. BLEAKLEY: The transcript itself?
 THE COURT: Yeah. Where did you get it?
BY MR. BLEAKLEY:
 Q. Where did you get it, professor?
 A. The transcript was not published. I believe the transcript was gotten from the Historical Society from one of the collections, either the Lung Association or Cancer Society files.
 MR. CIRESI: There's no foundation, Your Honor. It's hearsay.
 THE COURT: Well I'll allow it, BYB000383.
 MR. BLEAKLEY: I do have --
 THE COURT: Huh?
 MR. BLEAKLEY: I do have a stamp that this is a record -- an official record of the American Lung Association.
 THE COURT: I don't think there is such a thing, but I'm going to allow it anyway.
 MR. BLEAKLEY: American Lung Association of Minnesota? That's what it says here.
 THE COURT: That's not an official document, counsel. You know that.
 MR. BLEAKLEY: Okay.
 THE COURT: I'm still going to allow it, despite that.
 MR. BLEAKLEY: Fine.
BY MR. BLEAKLEY:
 Q. Now let me ask you just one more question about this.
 A. Sure.
 Q. Did the mock jury in this case find the tobacco industry guilty?
 A. Yes, it did.
 Q. And who announced the verdict of guilty?
 A. The announcement was made by Sister Mary Ashton, the Commissioner of Health.
 Q. Now let me back up for just a minute, Professor Berman. You --
 Yesterday we talked about the 1964 Surgeon General's report and how the state Departments of Health of Education endorsed the findings of the 1964 Surgeon General report and subsequent reports.
 Were there subsequent reports in which the state of Minnesota, through the Department of Health and Education, adopted Surgeon General's reports?
 A. Yes, there were.
 Q. Would you turn to tab 62 in your book, which is Exhibit BYL000293. And it's a document entitled "Disease Control Letter," January 1980, Minnesota Department of Health.
 A. I have it in front of me.
 Q. And is this a document that you found during your research?
 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 move the admission of Exhibit BYL000293.
 MR. CIRESI: No objection, Your Honor.
 THE COURT: Court will receive BYL000293.
BY MR. BLEAKLEY:
 Q. The lead article on the -- in this newsletter is "CIGARETTE SMOKING: HOW MANY PREMATURE DEATHS?" Is that correct?
 A. That's true.
 Q. And it goes on to say that the Surgeon General -- the 1979 Surgeon General's report on smoking and health concludes that cigarette causes, and then it lists the diseases; is that right?
 *6 A. It causes cancer of the lung, cancer of the larynx, cancer of the esophagus, oral cancer, chronic bronchitis, emphysema, and is significantly associated with cancer of the urinary bladder, cancer of the kidney, cancer of the pancreas, and is a significant risk factor for cardiovascular disease, which is the leading cause of death in the United States.
 Q. And would you turn over to the next column. There's a paragraph that --
 A. Yes.
 Q. -- begins with the words "If 15 percent...," would you read that also, please.
 A. Yes. "If 15 percent of the population die smoking-related deaths, and all come from the 35 percent of the population who are smokers, we can infer that a smoker has about a 40 percent chance of dying a smoking- related death. Is cigarette smoking worth this risk of premature death?"
 Q. And below that there is a table which estimates the number of -- shows the number of deaths in Minnesota in 1977?
 A. Yes.
 Q. And the percentage of deaths attributable to cigarette smoking?
 A. Yes.
 Q. And then the right-hand column estimates the number of deaths in Minnesota attributable to cigarette smoking; is that right?
 A. That is correct.
 Q. And the newsletter goes on to state that a smoker has about a 40 percent chance of dying a smoking-related death.
 A. That's what it says here, yes.
 Q. And this was in 1980?
 A. Yes, sir.
 Q. In a newsletter published by the Department of Health.
 A. Yes.
 Q. And what were these newsletters used for?
 A. Newsletters of the Department of Health were sent to the -- I'd say the constituencies of the department, health-care professionals, educators, people like that.
 MR. CIRESI: Objection, no foundation. Move to strike.
 THE COURT: Yes. You'll have to be a little more precise than that.
BY MR. BLEAKLEY:
 Q. Based on your research in this matter, what is your understanding of the purpose for which these newsletters were prepared?
 MR. CIRESI: Same objection, Your Honor.
 THE COURT: You got to lay some foundation, counsel.
 Q. How do you know what these newsletters were used for?
 A. Well I think it's the -- the statement of -- in -- of the Department of Health, that what these newsletters were used for was to disseminate information to the public through the intermediaries of -- of decision leaders and leading people in the society, in this instance it would be health-care professionals and educators.
 Q. Okay. Would you turn to tab 63 in your book.
 A. Yes.
 Q. Which is Exhibit BYL000294.
 A. I have it in front of me.
 Q. It's a Minnesota Department of Health Disease Control Newsletter dated January 1984?
 A. Yes.
 Q. And is this a document that you found in the course of your research?
 A. Yes.
 Q. And forms a part of the basis for your opinions in this matter?
 A. Yes.
 Q. And this has a section in it entitled "THE BENEFITS OF NONSMOKING?"
 *7 A. It does.
 MR. BLEAKLEY: Your Honor, at this time we move the admission of BYL000294.
 MR. CIRESI: No objection, Your Honor.
 THE COURT: Court will receive BYL000294.
BY MR. BLEAKLEY:
 Q. Would you turn to page four of this document.
 A. I have it in front of me.
 Q. And would you --
 "THE BENEFITS OF NONSMOKING," would you read the first paragraph of that.
 A. Yes. "THE BENEFITS OF NONSMOKING
 "The scientific case linking cigarette smoking to premature death and excessive lifetime morbidity was first presented in the 1950s. Now, in the 1980s, the case is further advanced with approximately 40,000 pieces of research providing a solid indictment of the smoking habit. Within the scientific and medical communities, the evidence is compelling. Unfortunately, the public may be near the saturation point for public health messages on the health consequences of smoking, and new revelations of the health hazards of smoking may have lost the value of novelty."
 Q. And what is the significance of that statement to the opinions that you have in this matter?
 A. I believe that this tells me that the -- the responsible people in the state of Minnesota looking at the issue of smoking and health had come to the conclusion that there is so much information regarding the negative consequences of smoking out there that the public is saturated with it; therefore, they're looking for another strategy to influence the people to stop smoking.
 Q. Namely, the benefits of non-smoking?
 A. That is correct. They, therefore, came up with what they call the benefits of non-smoking as being the emphasis that they would put on in order to carry out what their objective was, to improve the health of the people of the state of Minnesota by getting them to stop smoking.
 Q. Now back to the beginning of your testimony, Professor Berman, you said that you did come here to testify about the awareness of the people of Minnesota and the state of Minnesota about the health risks of smoking and the role that the state played in that awareness; correct?
 A. That is correct.
 Q. Now based on your education, your training, your experience, and the historical analysis that you have -- the research that you've done in this case, and the historical analysis that you have performed, do you have an opinion to a reasonable degree of historical certainty regarding whether the people of Minnesota have been exposed to information on the health risks of smoking since Minnesota statehood?
 A. Yes, I do.
 Q. And what is your opinion?
 MR. CIRESI: Excuse me, professor. Objection, 702, relevance.
 THE COURT: I think the question is going to have to be rephrased.
 MR. BLEAKLEY: Can we have a side-bar, Your Honor?
 THE COURT: Yes.

BY MR. BLEAKLEY:
 Q. Professor Berman, I'm going to try to rephrase my question for you.
 *8 A. Surely.
 Q. Based on the research that you have done in this case and the historical analysis that you have performed, do you have an opinion regarding the awareness of the people of Minnesota about the health hazards of smoking over various periods of time between approximately Minnesota statehood and the present date?
 A. I do.
 Q. And does your opinion generally follow the division into time periods that you used in describing your testimony here?
 A. Yes, it does.
 Q. And does it take into account the different levels and amounts and quantity of information that was provided?
 A. Yes, it does.
 Q. And does it take into account the role that the state of Minnesota played in educating the people of Minnesota about the health hazards of smoking?
 A. Yes, it does.
 Q. And the awareness of the state of Minnesota itself about the health hazards of smoking?
 A. Yes.
 Q. And what is your opinion?
 MR. CIRESI: Well Your Honor, again I object with regard to 702, foundation, relevance.
 THE COURT: I'm going to allow it.
 THE WITNESS: May I?
 THE COURT: You may.
 THE WITNESS: Thank you.
 A. Since the onset of statehood, the people of Minnesota and the state itself --
 THE COURT: Excuse me. I don't mean to interrupt, but do you want the question reread?
 THE WITNESS: Sorry?
 THE COURT: Do you want him to redo the question?
 THE WITNESS: Yeah, please review the question.
 MR. BLEAKLEY: Okay. I think the question was --
 THE WITNESS: I think that's a good idea, review the question.
 THE COURT: -- whether or not you have an opinion.
 THE WITNESS: Sorry?
 THE COURT: I think the question was whether you have an opinion.
 THE WITNESS: Do I have an opinion? Yes, I do have an opinion.
 THE COURT: Now I assume he wants to know what that is.
 All right, go ahead.
 THE WITNESS: Sorry.
 Q. And what is your opinion, Professor Berman?
 MR. CIRESI: Same objections, Your Honor.
 THE COURT: You may answer. Go ahead.
 A. Since the onset of statehood, the people of Minnesota have been in fact provided with information regarding the health hazards of smoking over time. That information has been generated in many different ways and has had different levels of intensity over time. The state and state agencies were also aware of it and in their actions have contributed to the awareness and the knowledge. The massive increase in the knowledge, information, and therefore the attitude formation that takes place, increased after 1950 and received in fact a major boost the after 1964 with the Surgeon General's report and subsequent activities. By then, of course, the views and -- the knowledge, let's put it that way, the knowledge of the people of Minnesota was virtually unanimous in terms of the knowledge of the health risks of smoking.
 MR. CIRESI: Move to strike the last portion, Your Honor. There's no foundation.
 THE COURT: Yes. That last sentence will be stricken.
 *9 MR. BLEAKLEY: I have no further questions, Your Honor.
 THE COURT: You --
 MR. CIRESI: We're prepared to proceed, Your Honor. We would like to move some of these out and move the Elmo over.
 THE COURT: Well let's take a short recess so that the jury isn't subjected to all this racket.
 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: Go ahead, counsel.
 MR. CIRESI: Thank you, Your Honor.
 Good morning, ladies and gentlemen.
 (Collective "Good morning.")
BY MR. CIRESI:
 Q. Good morning, professor.
 A. Good morning, Mr. Ciresi.
 Q. Let me introduce myself. I'm Mike Ciresi and I'm one of the lawyers representing the state of Minnesota and Blue Cross and Blue Shield of Minnesota.
 You and I have not met before, professor. You and I have not met before; correct, sir?
 A. No, we have not.
 Q. Okay. If at any time you do not hear a question that I ask you, please tell me. All right?
 A. I certainly will.
 Q. All right. And if you tell me, then I'll make sure I speak up. Okay?
 A. Right.
 Q. Professor, I'd like to talk a little bit with you first about your background --
 A. Sure.
 Q. -- and your teaching here at the University of Minnesota.
 It's my understanding that you've taught there for what, 30 years?
 A. Thirty-seven years this September.
 Q. Thirty-seven years. And I think on direct you said that you had published a -- one book; correct?
 A. Yes.
 Q. Is that correct?
 A. Yes.
 Q. Okay. And that dealt with American workers in the 20th century; correct, sir?
 A. That is correct.
 Q. And that --
 You co-authored that book with another professor?
 A. That is correct.
 Q. Okay. And that was published back, oh, about 35 years ago, in 1963; correct?
 A. That's correct.
 Q. Okay. Have you published any books since then, professor?
 A. No.
 Q. Okay. And you've also done some publications in refereed journals; is that right?
 A. That is correct.
 Q. Okay. And when we speak about "refereed journals," those are journals that some other academics would look at and review and see whether or not they're worthy of being published, if you will; correct?
 A. That is correct.
 Q. Okay. And you've published about what, four articles during the course of your career in a refereed journal?
 A. I think a few more than that, but roughly.
 Q. Okay. And did they also deal with the work force?
 A. That's correct.
 Q. And one was "From Socialism to Pragmatism," and that was published in 1965?
 A. Correct.
 Q. Okay. And another one was "The Acculturation of an Immigrant Union, YIVO STUDIES," and that was published in 1967; correct?
 A. That is correct.
 Q. Okay. And what was that about, sir?
 A. That was a study of the process by which an immigrant union or a union of immigrant workers and leaders became in fact part of the mainstream of American society.
 *10 Q. Okay. It dealt with formation of the union and how they transcended and moved into mainstream society; correct?
 A. Exactly.
 Q. All right. Another refereed article that you published was back in 1963, and that was "Education for Work and Labor Solidarity;" correct?
 A. That is correct.
 Q. Okay. And by the way, the YIVO studies was published in 1967?
 A. I believe so.
 Q. Okay. And then the other peer-reviewed article that you published was called "Political Antisemitism in Minnesota During the Great Depression;" correct, sir?
 A. That's correct.
 Q. And that was published in the Jewish Social Studies in 1976.
 A. That's correct.
 Q. And as you said, you've also appeared on TV on a number of occasions?
 A. That's correct.
 Q. I think I've seen you.
 A. Sorry?
 Q. I think I've seen you. Was it on Almanac?
 A. Yes.
 Q. Okay. And you've also refereed a few articles that were published in journals?
 A. Yes.
 Q. Okay. And that was back in the '60s and '70s that you did that?
 A. Oh, the last refereed article that I reviewed was just about six months ago.
 Q. Okay. And before that was there one in 1981?
 A. I -- no. There were some in between, but I -- I reviewed quite a few articles. And also manuscript for -- for university presses and commercial presses as well.
 Q. Okay. Now professor, none of those had anything to do with the tobacco industry; is that a fair statement?
 A. That's correct.
 Q. Okay. Now your area of expertise is the American labor movement and labor relations in the United States; correct?
 A. Yes.
 Q. And that's what you've taught courses on during the course of your career; correct?
 A. That is correct.
 Q. And within that area of expertise, do you specialize in anything else?
 A. Yes. I have become, in fact, pretty much specialized in Minnesota history as well.
 Q. Well isn't your primary focus and your professional interest and expertise in the area of strikes and picket line activity, and specifically the emergence of violence in that context? You've studied that?
 A. I've studied that, but that's not the only thing I studied. Yes.
 Q. But that's the primary focus of your professional interest and expertise; isn't it?
 A. Oh, I wouldn't say that. I'd say that my primary focus is on the -- essentially the way in which workers become an integrated part of American society.
 Q. Do you recall giving an affidavit back in November of 1991 in the case of Midwest Motor Express?
 A. I do recall that, yes, sir.
 MR. CIRESI: Okay. May I approach, Your Honor?
 (Document handed to the witness.)
 Q. Professor, I've handed you a copy of your affidavit. And this is your affidavit; correct?
 A. I believe so.
 Q. Well please check it and take a look on page four, make sure that's your signature.
 A. Yes, it is.
 Q. Okay. And in paragraph five there did you state that a primary focus of your professional interest and expertise is in the area of strikes and picket line activity and specifically the emergence of violence in that context?
 *11 A. Yes.
 Q. Okay. And then you went on and stated, you know, how many strikes you had observed during the course of your career; correct, sir?
 A. That's correct.
 Q. Now in that study, in that primary focus of your work, you have not investigated the tobacco industry in any way or sense; have you?
 A. No, I have not.
 Q. Now your history course that you teach at the U, is that Course 3822? Is that the number?
 A. That's exactly it.
 Q. Okay.
 A. I -- but you were not registered in that one, were you?
 Q. No, I wasn't. I never had the privilege of being in your classroom, professor. But maybe I'll take it in the future.
 A. Oh. Maybe after this case is over you can come and visit me.
 Q. Now in that course, the particular interest is the study and explanation of the ordinary experiences of the working men and women in American society; correct?
 A. No, that course is broader than that. 3822 is the history of the United States from 1930 to 1960. It's more comprehensive than just the history of the working people.
 Q. Fair enough. That is the broad period of time, but the particular interest in that course, as you stated on the Internet, I believe, is a study and explanation of the ordinary experiences of the working men and women in American society.
 A. That's among the things that are covered, yes, sir.
 Q. And you believe, sir, that society recently -- and let's use the last 15 years -- is paying too much emphasis on the natural forces of the marketplace and in reality that marketplace has become a rationale for inequality and injustice; correct?
 A. That's too broad a formulation, and -- you know, it takes a little bit more explanation than that, so I couldn't quite go along with that.
 Q. Do you recall submitting an op ed piece to the St. Paul Pioneer Press where you stated that?
 A. I do.
 Q. Okay. And you felt that in the corporate world there have been selfish policies that have been designed to benefit the wealthy and the greedy; correct?
 A. On occasion I think so, yes.
 Q. And you were particularly interested in the fact that there's been an exploitation for economic gain of children; correct?
 A. Yes.
 Q. And that of concern to you; correct?
 A. It does.
 Q. Now sir, are you aware that over 80 percent of smokers start before the age of 18?
 A. I am not aware of that in terms of my own research, no, sir.
 Q. You didn't look at any industry documents in doing your research; did you?
 A. No, I did not.
 Q. You're not a behavioral scientist; are you?
 A. No, I am not.
 Q. You're not an awareness expert; are you?
 A. No, I am not.
 Q. You have no training in chemical engineering.
 A. Not at all.
 Q. You're not an expert on addiction.
 A. I'm sorry?
 Q. You're not an expert on addiction.
 A. No.
 Q. And I think, professor, you said that you had spent 1200 hours looking at articles?
 *12 A. Approximately, yes, sir.
 Q. Do you recall at your deposition that you testified that you had spent approximately four to five hundred hours?
 A. I don't recall that, no, sir.
 Q. When did you look up the number of hours that you had spent?
 A. About a week and a half ago I checked it out.
 Q. Do you have your deposition up there, sir?
 A. Do I?
 Q. Yes.
 A. Yes.
 Q. It should be on your right.
 A. Yes, sir.
 Q. If you could look to page 48.
 A. Forty-eight?
 Q. Yes. And you had your deposition taken on September 15th of last year; correct?
 A. That's correct.
 Q. Okay.
 A. Uh-huh. Forty-eight. I have it, yes, sir.
 Q. All right. And if you could just look at the bottom there on line 24, over on to page 49, see if that refreshes your recollection as to how much time you said you had spent as of September 15th of 1997.
 A. Yes, I see that.
 Q. Four to five hundred hours?
 A. That's what it says there.
 Q. Okay. Was that accurate at the time?
 A. No, it was not accurate at the time. It was a miscalculation. I had no knowledge of what -- how many hours I had put in. I didn't keep records of it at the time.
 Q. Okay. Is the 1200 hours hours that you put in, or you and your research assistants?
 A. I personally put in 1200 hours.
 Q. Do you know how many you put in since September?
 A. Since September?
 Q. Yes.
 A. No. I could check that out, but I couldn't tell you. But it was -- I --
 I couldn't even guess at that.
 Q. Okay. Now I think you said here yesterday -- or it may have been the day before -- that you had looked at hundreds of thousands of newspaper articles?
 A. I misspoke. It's thousands really.
 Q. So it wasn't hundreds of thousands.
 A. No. No. It was a lot, let's put it that way. Voluminous.
 Q. You don't know how many you looked at; do you?
 A. I don't have an exact figure, no, sir.
 Q. Because if you looked at hundreds of thousands and you worked 1200 hours, you'd be looking at two or three documents a minute; wouldn't you?
 A. Oh --
 Q. That doesn't make sense; does it?
 A. No, no. It was thousands rather than hundreds of -- it's obviously something --
 There were a lot, let's put it that way.
 Q. Okay.
 A. Quite a few. And the -- the quantitative question was -- was a guess.
 Q. But you repeated it; didn't you?
 A. Pardon me?
 Q. You repeated it in your -- in your testimony.
 A. Well I could have repeated it, but it was the same old guess.
 Q. Do you remember Mr. Bleakley asked you, "Did you say hundreds of thousands, or did you mean a thousand or hundreds?" And you said "No, hundreds of thousands." You remember that?
 A. I misspoke, misspoke and misstated.
 Q. Okay. Now the documents, whatever number they were, do you know who actually went out and obtained them?
 A. Who -- I'm sorry?
 Q. Who went out and obtained those documents, those --
 *13 A. Oh --
 Q. -- newspaper articles.
 A. Oh, I did some, but my graduate students did -- my graduate assistants actually went through and copied the articles that were in the newspapers.
 Q. Okay. So it was the graduate assistants who really obtained most of those; didn't they?
 A. That is correct.
 Q. All right. Now were there also some people in Washington that were working at the direction of the lawyers who obtained some information for you?
 A. There were people in Washington that were in fact assisting in the collection of newspaper articles, yes, sir. But they were working on -- on my -- under my direction, sir.
 Q. Do you know their names?
 A. No, I do not.
 Q. But they were under your direction and control, and you don't know their names; is that right?
 A. I visited them a number of times to make sure that they were doing the right thing and that they were following my directions on what to look for and what to copy.
 Q. Weren't they hired by the lawyers in this case?
 A. I believe so, yes, sir.
 Q. Okay. And they were the ones who were directing them out there; correct?
 A. I have no knowledge of what they were doing out there.
 Q. And that's where they live, in Washington D.C.; right?
 A. Yes.
 Q. And you live here in Minneapolis.
 A. That's correct.
 Q. Okay. And the law firm who hired them is in Washington D.C.; correct?
 A. That is correct.
 Q. Now at your deposition, do you recall saying you didn't have a file on this case?
 A. I might have -- may have said that. I don't recall it.
 Q. You don't have a file on the case; do you?
 A. Not a file, no, sir. I have files, but not a file.
 Q. And do you recall saying that -- and these are your words, not mine, sir --
 A. Pardon me?
 Q. Do you recall saying -- and these were your words, not mine -- that you're probably the most disorganized person in the world?
 A. I do. And I -- I -- I said that then and -- and I'll kind of confirm it here --
 Q. Okay.
 A. -- in open court.
 Q. And these file cabinets that you invited the jury over to have coffee on -- do you remember that?
 A. I'm sorry?
 Q. Do you remember saying on -- on direct that you invited the jury over to have coffee to look at these file cabinets?
 A. I do recall that, yes.
 Q. Those aren't even file cabinets that hold anything that you're relying on in this case. Isn't that right?
 A. Oh, those file cabinets contain the materials that in fact were used in coming up with a basic viewpoint in this case.
 Q. Okay. Again direct your attention to page 35 of your deposition.
 A. Thirty-five? Sure.
 Q. Yes.
 A. Yes.
 Q. And you were asked whether you maintained a file on this case, and you said, "Not on this, no." Do you see that?
 A. Yes, I do see that.
 Q. And you knew you were under oath at that time.
 A. Pardon me?
 Q. You knew you were under oath at that time. You knew you were under oath at that time.
 *14 A. Oh, yes, sir. Yes, sir.
 Q. Okay. And if you go over to page 38, do you see that your lawyer there is talking about the file cabinets and he says --
 A. Thirty-eight?
 Q. Yes. At page -- at line five through 11. If you could just review that to yourself, sir. You don't need to read it out loud.
 A. Yes, I see that. Yes, sir.
 Q. And the lawyer there was saying that what's in these file cabinets is material that you're not relying on; --
 MR. BLEAKLEY: Objection.
 Q. -- didn't he?
 MR. BLEAKLEY: Your Honor, this is the colloquy of counsel at the deposition. I don't think it's appropriate for him to be asking this witness about what his lawyer was saying at the deposition.
 THE COURT: Well you can quote the deposition, but don't --
 You may answer that question.
BY MR. CIRESI:
 Q. Do you see there where it was stated that you were not relying on those files?
 A. Yes, I do see that.
 Q. Okay. And you never said you were relying on that; correct?
 A. That is correct.
 Q. And those were the file cabinets that you were inviting the jury over to have coffee with; correct?
 A. Yes.
 Q. Okay. Now you made a decision in doing your investigation in this case not to go beyond the public domain; correct?
 A. That is correct.
 Q. And you never talked to one person in the public domain; correct?
 A. That is correct.
 Q. You didn't interview anyone at the tobacco companies; correct?
 A. That is correct.
 Q. You never asked one person at the tobacco companies what they knew; correct?
 A. That's right.
 Q. You did no surveys or statistical analysis of your own; did you, sir?
 A. No, I did not.
 Q. You didn't review one document of the defendants; correct?
 A. That is correct.
 Q. You never asked for a document; correct?
 A. That is correct.
 Q. No documents were ever offered to you; correct?
 A. That is correct.
 Q. The only people that offered documents to you of the defendants were attorneys for the state of Minnesota and Blue Cross and Blue Shield; correct?
 A. That is correct.
 Q. It is fair to state, then, that when you rendered your opinions, you had no idea what knowledge the tobacco companies had as would be evidenced by their documents; correct?
 A. That is absolutely correct.
 Q. You do understand that at issue in this case is what the tobacco companies knew and when they knew it; don't you?
 MR. BLEAKLEY: Objection, that's argumentative, and a legal issue, and not within the purview of this witness's direct testimony or his expertise.
 THE COURT: Okay. The objection is sustained.
BY MR. CIRESI:
 Q. Sir, do you have any understanding about what the issues are in this case?
 MR. BLEAKLEY: Same objection, Your Honor.
 THE COURT: You may answer that.
 THE WITNESS: Should I answer?
 THE COURT: Uh-huh.
 A. I read the complaint, the amended complaint.
 Q. Right. And you testified about that; didn't you?
 *15 A. Yes, I certainly did.
 Q. Okay. So you know that what's at issue here, in part, is what the tobacco companies knew; correct?
 A. That's what the complaint says, yes, sir.
 Q. And that was one of the first things you read; correct?
 A. That --
 Yes.
 Q. In fact, sir, you feel it's not your concern about what the industry knows or did know; correct?
 A. That's correct.
 Q. You're not interested in what they know and you weren't going to do anything to find out about what they knew; correct?
 A. That is correct.
 Q. And you said that you're going to be here as a historian and not as a common-sense person; correct?
 A. That is correct.
 Q. And in fact, I believe you said that you're not interested at all in what the tobacco companies did; correct?
 A. That is correct, yes.
 Q. You haven't asked for any testimony of any executives of the defendants; have you?
 A. No, I have not.
 Q. You have not asked for any testimony of industry scientists; correct?
 A. That is correct, I have not.
 Q. And you never intended to when you set up your research design; did you?
 A. That is absolutely correct.
 Q. And in fact you weren't even interested in that; isn't that right?
 A. In terms of this project, no, I was not.
 Q. And you're aware that there's 30 million historical -- historical industry documents in a depository in Minneapolis; correct?
 A. I am aware of that, yes, sir.
 Q. When did you become aware of that?
 A. I became aware of it when it became an issue and was presented in the press. When that was, I don't recall.
 Q. You never visited that; did you?
 A. No, I did not.
 Q. You never asked to go there.
 A. No, I did not.
 Q. You knew historical documents were there.
 A. Yes, I did.
 Q. You didn't review any of the defendants' advertising; did you?
 A. No. I did not review them in terms of content, no, sir.
 Q. So you didn't go into the depth or breadth of what those documents would contain; correct?
 A. No.
 Q. You don't know what the CTR did in putting information into the public domain; do you?
 A. Yes, I do. What they -- what they put out into the public domain, was in the public domain, I came across, yes, sir.
 Q. Did you do an independent investigation of everything that the CTR put into the public domain?
 A. No. No, I did not.
 Q. Did you ask any research assistant to conduct such an investigation?
 A. No.
 Q. Did you make any investigation into what The Tobacco Institute placed into the public domain?
 A. An investigation?
 Q. Yes.
 A. Independent?
 No, sir.
 Q. Did you instruct anyone to do that?
 A. I instructed my research assistants to inform me if they come across anything that is pertinent in terms of public information that came from any source, including the tobacco industry.
 Q. Did you instruct them to conduct a study into what The Tobacco Institute put into the public domain?
 *16 A. Not specifically, no, sir.
 Q. Did you instruct them to conduct an investigation into what any of the defendants in this case put into the public domain with respect to smoking and health?
 A. No, sir.
 Q. Do you know how many times any representatives of the defendants appeared on the CBS Evening News?
 A. Quite a few times, but I don't know the exact number, no, sir.
 Q. Do you know how they appeared on the NBC Evening News?
 A. I have no idea.
 Q. Do you know how many times they appeared on ABC?
 A. I have no idea.
 Q. Do you know how many times they appeared on CNN?
 A. No, I have no idea.
 Q. Do you know how many times they appeared on the morning national network shows discussing smoking and health?
 A. No, I do not.
 Q. Do you know how many times they appeared on MacNeil Lehrer discussing that issue?
 A. No, I do not.
 Q. Do you know how many times -- how many times they planted articles in the New York Post -- or excuse me, New York Times?
 A. No, I do not.
 Q. Do you know how many times they placed articles in the Washington Post?
 A. No, sir, I do not.
 Q. Do you know how many times they placed articles in the Wall Street Journal?
 A. No, I do not.
 Q. Do you know how many times they placed articles in the L.A. Times?
 A. No, I do not.
 Q. Do you know if the Associated Press was provided articles by the tobacco industry?
 A. I have no knowledge of that.
 Q. Do you know if national newspapers, such as the Washington Post, the New York Times, the L.A. Times, the Wall Street Journal, syndicate articles so that they're placed in newspapers in Minnesota?
 A. I have no knowledge of that.
 Q. Do you know how much direct mail was sent directly to homes by the tobacco industry?
 A. No, I do not.
 Q. Do you know how many newsletters they sent to homes?
 A. No, I do not.
 Q. Do you know how many pamphlets and brochures they placed into the public domain?
 A. No, I do not.
 Q. Do you know how many films they prepared for dissemination to the public?
 A. Some -- how many --
 I'm sorry, I'm sorry, I didn't get that.
 Q. Do you know how many films they prepared for dissemination --
 A. How many --
 Q. Films.
 A. Oh, films. No, I do not.
 Q. Do you know how many times they gave congressional testimony?
 A. Congressional testimony?
 Q. Yes.
 A. No, I do not.
 Q. And you didn't instruct your research assistants to historically research people's knowledge of statements that may have been made by the defendants and the impact of those statements on people; did you?
 A. No, I did not.
 Q. You certainly didn't instruct the people in Washington to do that; did you?
 A. No, sir, I did not.
 Q. Now you know that children by and large don't read medical journals; don't you?
 MR. BLEAKLEY: Objection, Your Honor, that's beyond the scope of his direct and beyond the scope of his expertise.
 *17 THE COURT: No, you may answer that.
 A. I assume that they don't.
 Q. And you'd also assume they don't spend a lot of time reading government reports; wouldn't you?
 A. I certainly assume that as well.
 Q. They do watch TV; don't they?
 A. Yes, they do.
 Q. They do see billboards; don't they, sir?
 A. My understanding is that they do.
 Q. They do go to beaches; don't they?
 A. I believe they do.
 Q. They do go to convenience stores; don't they?
 A. I believe they do.
 Q. Do you --
 Would you agree that adolescents, children between the ages of 12 and 17, are more impressionable than adults?
 A. I do not know.
 Q. You have no idea.
 A. I have no idea.
 Q. Do you think they're more influenced by their peers?
 A. I really have no idea.
 Q. You didn't look into that; did you?
 A. Pardon me?
 Q. You didn't look into that issue; correct?
 A. No, sir, I did not.
 Q. Now you discussed the Medicaid depositions. Do you remember that?
 A. I do.
 Q. And I believe you said that the Medicaid deponents generally knew that smoking caused disease. Did you say that?
 A. I don't recall whether I did or not, but I was referring to their use of the terminology of "coffin nails," essentially.
 Q. And then you said that they knew that cigarettes caused disease. Didn't you say that?
 A. I may have.
 Q. Let me --
 I'll get a copy of the transcript.
 A. That's correct.
 MR. CIRESI: May I approach, Your Honor? May I approach, Your Honor?
 THE COURT: Sure.
BY MR. CIRESI:
 Q. Professor, let me direct your attention to page 9186.
 A. Which one?
 Q. 9186. Do you see there, sir, where you said Medicaid recipients knew --
 A. I'm sorry, Medicaid -- what -- you said --
 What page is that again?
 Q. 9186.
 A. 9186?
 Q. Correct.
 A. Okay. I was looking at seven. Sorry.
 Q. I'm sorry.
 A. Yes, I do see that.
 Q. Okay. Now you didn't mean to imply that those Medicaid recipients knew about the hazards of smoking when they started smoking; did you?
 A. No, I did not.
 Q. Because you found by reading those depositions they didn't know; did they?
 A. So far as I was able to remember from reading the depositions, yes.
 Q. Almost universally they did not know of the hazards of smoking when they started; did they?
 A. I believe that's correct.
 Q. And almost universally they started when they were under the age of 18; didn't they, sir?
 A. It is a while since I read the depositions, but I believe your characterization is correct.
 Q. Okay. Well did you get an opportunity -- I know there -- there's a lot of them, but did you get an opportunity to review them when I asked through a letter that you look at those for your testimony here?
 A. Surely.
 Q. Did you get a chance to go back and look at them at all?
 A. I'm sorry?
 Q. Did you get a chance at that time to go back and look at them?
 *18 A. No, I did not.
 Q. Okay. Do you recall that it was only long after they started smoking where they generally said they wished they hadn't started smoking?
 A. I believe I recall that, yes.
 Q. And it was long after they started smoking where they came to understand the hazards of smoking; wasn't it?
 A. I couldn't recall whether it was long after, but it was after, yes, sir.
 Q. Now I'm not sure I have the name right, I'm not a historian, --
 A. Okay.
 Q. -- Santayana?
 A. Santayana.
 Q. Okay. And you said that he had said we're doomed to repeat the errors of past if we don't learn from history; correct?
 A. That's a rough kind of paraphrase. Yes. Yes.
 Q. I'll grant that, professor. I'm not trying to be --
 A. Okay.
 Q. -- totally historically accurate there.
 A. Right.
 Q. And you said you'd adopt that with a little bit of a change, and that is that we -- if we don't look at history, that we will trip up over history and then repeat the past. Isn't that what you said?
 A. I re --
 Yeah. Roughly that, yes.
 Q. Okay. And in order to look at history on a given issue, you as a historian would say you'd have to look at all the information that's available on that issue. Isn't that fair?
 A. That's correct. But of course you have to define what you're talking -- what you're studying, yes.
 Q. And certainly you would agree that a company knows much more about its product than people who are in the public; correct?
 A. I would assume so, but I don't --
 I have no knowledge of that directly.
 Q. And you read the 1964 Surgeon General's report?
 A. Yes, I did.
 Q. And you read the 1988 Surgeon General's report?
 A. Yes, I did.
 Q. Okay. Did you read it all?
 A. Oh, I -- I obviously at one time or another had gone through it all. Whether I read it word for word, I probably didn't.
 Q. Okay. They're a thick document; is that correct?
 A. Yeah. I don't think anybody has ever read it word for word.
 Q. Nobody. Is that right?
 A. Well I don't know if nobody, but -- but it's a long, long and complex document.
 Q. You wouldn't expect people in the public to read all of that document; would you, sir?
 A. Oh, certainly not.
 Q. In fact you said nobody. That would even include doctors; isn't that right?
 A. Very few doctors, probably, read that report in total, in total, yes.
 Q. Very few scientists probably read that report in its entirety; correct?
 A. In its entirety, that's correct.
 Q. Certainly you can't think of one child under the age of 18 that's ever read that report. Have you?
 A. There may be some precocious child, but I don't -- I don't know of him.
 Q. If it is, it would have to be an awfully precocious child; wouldn't it?
 A. Absolutely. I would agree with you on that.
 Q. Now you said you read summaries of other Surgeon General's reports; correct?
 A. That is correct.
 *19 Q. And those summaries were provided to you by the lawyers; correct?
 A. No, sir.
 Q. Who provided those to you?
 A. Those summaries came out of the reports themselves, summary statement in the reports.
 Q. Okay. So you're talking about the parts in the beginning of the reports.
 A. Exactly.
 Q. All right. Then you learned, did you not, that in the 1989 Surgeon General report, that it was reported that 99 percent of smoking-attributable deaths that occurred in 1985 in this country were among people who started smoking before the 1964 Surgeon General's report was issued?
 A. I recall that statement, yes, sir.
 Q. They never ever had the benefit of that report, if indeed they knew about it; correct? Correct, sir?
 A. Yes.
 Q. Can you direct your attention to Exhibit 10339, which is in volume one.
 A. Tab -- tab ten is it?
 Q. They're not --
 Well they are tabbed, yes, and the exhibit number is on the tab.
 A. I'll have to look at that then.
 Q. And professor, let me remove some of that stuff.
 MR. CIRESI: Your Honor, may I approach?
 THE WITNESS: Your Honor, may I put this away?
 MR. CIRESI: May I approach?
 THE COURT: Yes.
 THE WITNESS: I'll get this out of the way.
 MR. CIRESI: I'll help you.
 THE WITNESS: Oh, thank you.
 THE COURT: You can take some of my stuff, too, if you'd like.
 THE WITNESS: I don't think you want me to obstruct my view of you, or you of me.
 A. Volume one, I have it here.
 Q. All right.
 A. What exhibit did you ask me to look at, Mr. Ciresi?
 Q. 10339.
 A. 10339.
 Q. Now you recall, sir, that, by way of a letter, I had requested that you actually take a look at some of the defendants' documents.
 A. Oh, yes, sir, I do. In fact I thanked you for it early on.
 Q. You did.
 A. Remember? Yes.
 Q. On -- where were we at today? Thursday. You thanked me on Tuesday, I think.
 A. That's correct. That's correct.
 Q. And did you get an opportunity to look at them?
 A. Absolutely I did.
 Q. All right.
 A. But I can't tell you that I did assimilate it.
 Q. It's not going to be a memory test. Okay?
 A. I mean I did countless --
 I wouldn't count the number of pages, but we did go through -- I did go through it.
 Q. Can you direct your attention, then, to that exhibit, 10 --
 A. I have it.
 Q. -- 339. Okay. Now this is a Philip Morris Research Center report on young smokers, prevalence, trends, implications, and related demographic trends. Do you see that?
 A. I do see that, yes.
 Q. And did you review this document, sir?
 A. I went through it, yes, sir.
 Q. And in reviewing this document, did you find that the overwhelming majority of smokers begin when they're in their teens?
 A. I don't recall it, but I -- I assume if it's in there, I saw it.
 Q. Okay. Can you direct your attention to the page -- and these are Bates numbers, sir. Do you know what a Bates number is? They're the numbers stamped in the lower right- hand corner.
 *20 A. Oh, yes, the ones -- the long, long numbers.
 Q. Right. And I'm just going to use the last three digits. Okay?
 A. Thank you.
 Q. 808.
 A. 808. Yes, I have it.
 Q. And you see there at the top, "It is important to know as much as possible about teenage smoking patterns and attitudes. Today's teenager is tomorrow's potential regular customer, and the overwhelming majority of smokers first begin to smoke while still in their teens." Do you see that?
 A. I do.
 Q. And if you go to the next paragraph, do you see that it's reported in this Philip Morris document that it is during the teen- age years that the initial brand choice is made?
 A. Let me just --
 Oh, that first sentence. Yes, I see that. Yeah.
 Q. Do you see that?
 A. I do see that now, yes.
 Q. And in reviewing the documents that I asked you to look at, did you come to understand the significance of developing brand loyalty with regard to the long-term economic benefit to the tobacco companies?
 MR. BLEAKLEY: Your Honor, I object, this goes well beyond the scope of Professor Berman's direct examination, well beyond his expertise. This is repetitive. These documents have been used during the plaintiffs' case. This is the defense case now.
 THE COURT: Well I expect they'll be using them in the defense case, too. There's nothing prohibiting that.
 You can answer it "yes" or "no."
 A. No.
 Q. You didn't. Okay.
 In reviewing the documents, did you come to understand that the industry knew that brand loyalty was important?
 MR. BLEAKLEY: Same objection, Your Honor, goes beyond the scope of direct.
 THE COURT: You can answer that.
 A. I -- I have no knowledge of that, no.
 Q. In reviewing the documents I asked you to review, did you find that the industry was looking and marketing to under-age children?
 A. No, I did not.
 MR. BLEAKLEY: Same objection.
 Q. And you reviewed all the documents?
 A. I reviewed the documents, yes, sir.
 Q. Can you direct your attention, then, sir, to Exhibit 10 - - or excuse me, 12493. It's in the same book, sir.
 A. Yes, I have it.
 Q. Did you review that document? That's a 1975 marketing plan presentation of RJR that was given to their board of directors on September 30th, 1974.
 A. There were so many documents that I reviewed that day that I can't specifically recall this one, but I -- if it's part of the predesignated documents, I did in fact turn the pages at least.
 Q. Well see, now, that's sort of the --
 Did you just turn the pages?
 A. No. I read. I read insofar as I could. It was very -- impossible in one day to read all of this material.
 Q. All right. Now you could have read it over two or three days; correct?
 MR. BLEAKLEY: Objection, Your Honor, this is argumentative.
 THE COURT: Why don't you ask your question, counsel.
 Q. Did you have a number of days to look at it?
 A. I believe that the -- the -- the letter with these designated documents came to my attention just a day before, or came to my attention on -- what is it -- Monday, I believe it was, or Sunday or Monday.
 *21 Q. Sunday. So you would have had Sunday, Monday, Tuesday, Wednesday.
 A. Sunday or Monday. Well Tuesday I was here.
 Q. Okay. Did you look at them at night at all?
 MR. BLEAKLEY: Your Honor, this is argumentative and irrelevant.
 MR. CIRESI: It's not argumentative, Your Honor. I asked him what he did.
 THE COURT: No, I think he's entitled to know whether he reviewed the documents. You may answer.
 THE WITNESS: Yes.
 A. I'm sorry, what was the question?
 Q. Did you look at them in the evenings at all?
 A. Yes, I did.
 Q. Okay. And I -- I don't mean this as a criticism, it's hard to remember everything that you read.
 A. Yes.
 Q. Correct?
 A. Exactly.
 Q. Just like if somebody read a newspaper article once, they may not remember it; correct?
 A. Well it's possible.
 Q. I mean can you tell me what was in the front page of the newspaper last week, the exact title of anything?
 A. Probably not.
 Q. There's all kinds of information out there; correct?
 A. That is correct.
 Q. A blizzard of information; correct?
 A. Yes. Oh, yes.
 Q. I think you called it a plague; correct?
 A. I'm sorry?
 Q. I believe you called it a plague; correct?
 A. Well I'm --
 If I did, it's a -- probably a wrong term. I wouldn't call information a plague, but a cornucopia, a flood.
 Q. Okay.
 A. Plague, no. "Plague" has some kind of other connotations, so I wouldn't --
 If I used it, it's an unfortunate use.
 Q. You'd take it back if you used it.
 A. Yeah, I take it back.
 Q. Okay. So a cornucopia of information; correct?
 A. Yes.
 Q. And in the cornucopia of information regarding the defendants' documents, did you learn that they were marketing to 14-year-old children?
 MR. BLEAKLEY: Your Honor, this is argumentative. Counsel is testifying. It's beyond the scope of direct.
 THE COURT: Refer to a specific document, counsel.
BY MR. CIRESI:
 Q. Exhibit 12493, can you turn to the -- just the very first page.
 A. Sorry?
 Q. Can you turn to the very first page.
 A. Very first page? Yes, sir.
 Q. And do you see the objective in '75, to re-establish RJR's share of marketing growth in the domestic cigarette industry?
 A. I see it.
 Q. And then under chart two, number one, do you see where they want to increase the young adult franchise?
 A. I see it.
 Q. And right below number four, do you see where they define the young adult market as 14 to 24?
 A. I do see it, yes.
 Q. Okay. Do you recall reading that?
 A. I recall seeing it, yes, sir.
 Q. Before right now?
 A. Before right now, yes, sir.
 Q. Okay. Now professor, did you look at any documents to see what effect teen-agers today have as a result of the marketing of the cigarette industry?
 A. I do not know.
 Q. Can you look at Exhibit AT000507, which is in volume two.
 A. When I get to volume two, will you repeat that number for me?
 *22 Q. I will indeed, sir. I will indeed.
 A. What's the number, sir?
 Q. It's right toward the back of it, and it's AT000507.
 A. 507?
 Q. Yes. Do you have it?
 A. As soon as I get this open, I will.
 MR. BLEAKLEY: Was this document predesignated, counsel? I don't have it on my list of documents that were predesignated for this cross- examination.
 MR. CIRESI: This is one that he presumably -- well let me --
 May I ask a question?
 THE COURT: Of the witness?
 MR. CIRESI: Yes, Your Honor.
 THE COURT: All right.
BY MR. CIRESI:
 Q. Sir, have you seen this document before?
 A. I do not recall, although I probably did. But I do not recall just offhand.
 MR. CIRESI: It was designated in the March 21, 1998 letter.
 Q. Sir, isn't this one of the documents that -- the defendants' documents that you looked at and relied on?
 A. It could very well be, yes, sir.
 Q. Pardon me?
 A. It could very well be, yes, sir.
 MR. CIRESI: Okay. Your Honor, we're going to offer AT000507.
 MR. BLEAKLEY: No objection.
 THE COURT: I believe that's already been admitted.
 MR. CIRESI: It is -- it is in, Your Honor.
 THE COURT: That was admitted on March 10th.
 MR. CIRESI: Yes.
BY MR. CIRESI:
 Q. Now professor, do you see in the second column, down at the bottom, there's an executive summary?
 A. Yes.
 Q. Okay. Now this is published in the Federal Register; correct?
 A. That is correct.
 Q. And do you know what this is?
 A. Yes, I do.
 Q. Can you tell us what this is.
 A. The Federal Register is the official record of federal actions by different federal agencies.
 Q. And do you know what agency this relates to?
 A. This relates to the Department of Health and Human Services.
 Q. Okay. Did you read this before?
 A. I believe I did.
 Q. And do you recall that this dealt with a research firm which had been hired by the Food and Drug Administration?
 A. I would have to review this document again because there are so many documents that I saw that it's like a blur, but --
 Q. Let's go right down to the bottom of the --
 A. Yes.
 Q. -- second column, sir.
 A. Right, I do.
 Q. Do you see where it says "Executive Summary?"
 A. I do see that, yes, sir.
 Q. "Macro International, a research firm which provides survey, market research, and focus group services worldwide, was awarded a contract from the U.S. Food and Drug...." Do you see that?
 A. Yes, I do see that, uh-huh.
 Q. And what they were going to do was survey a number of groups of adolescents; correct?
 A. I do see that, yes, sir.
 Q. Do you recall this document now?
 A. I do. Not the details, but I recall the -- the document, yes.
 Q. Okay. And do you recall that it was reported here that few teens who are just beginning to smoke consider themselves at risk for becoming addicted to cigarettes because they are convinced they can quit at any time?
 *23 A. I see that in the -- in that document, yes, sir.
 Q. And was it also reported in this document that you reviewed that the teens who said they were addicted to smoking made it clear for them that smoking was no longer a matter of choice but of need?
 A. Yes, I do see that.
 Q. Do you see that right above Roman numeral II there?
 A. Yes, I do see that, yes.
 Q. And then there's a report on the perceptions of cigarette advertising; correct?
 A. I see that, yes, sir.
 Q. And is it reported there that all of the groups expressed familiarity with the cigarette advertisements shown to them?
 A. I'm -- I'm sorry, I couldn't follow that. Will you repeat that, please?
 Q. Certainly, professor. Is it reported there that all of the groups expressed --
 A. I found it now, yes, sir.
 Q. -- expressed familiarity with the cigarette advertisements shown to them?
 A. Yeah. I see that, yes, sir.
 Q. And did you know that when you came here to testify?
 A. No, I did not.
 Q. So when you read this document before, you just didn't see that portion. Fair enough?
 A. Yes, I saw that portion, but I -- I -- I don't recall that it made any particular impact on me.
 Q. None at all.
 A. No.
 Q. But the advertisements would be information that are in the public domain; correct, --
 A. That is correct.
 Q. -- professor?
 Okay. And is it also reported that many of the teen-agers were aware of incentive programs sponsored by major cigarette manufacturers whereby cigarette smokers could receive clothing items or other products by cashing in Camel Dollars or Marlboro Miles for products from a catalog?
 A. I do see that, yes, sir.
 Q. And is it also reported there that these focus groups stated that they believe that -- or they felt that the primary target of the cigarette ads were teens and young adults?
 A. I see that in this document, yes, sir.
 Q. Do you recall reading that before you came here to testify?
 A. Yes, I do. I do.
 Q. And that's information that's in the public domain; correct?
 A. That is correct.
 Q. And as you stated, you have no idea of the cornucopia of advertisements and information that's been directed to them; do you?
 A. I have no knowledge of the quantitative figure, but it's quite a lot, yes, sir.
 Q. Quite a lot?
 A. So I understand, yes.
 Q. And do you see that the teens in the focus group reported that the ads show people having a good time so that kids will think that their lives will improve if they smoke? On the top of page -- the next page.
 A. Top of next page?
 Q. Yes, right before Roman numeral III.
 A. Right before Roman numeral III.
 Yes, I do see that now, yes.
 Q. Did you know that when you came here to testify?
 A. Did I know that? I had read it, yes, sir.
 Q. Did you remember that?
 A. I think I did, yes, sir.
 Q. And then you see it goes on to perceptions of the Surgeon General's warnings?
 *24 A. I see that, yes, sir.
 Q. And these were the teens' perceptions of the Surgeon General's warnings; correct?
 A. Correct.
 Q. And if you go down just right above Roman Numeral IV, --
 A. Uh-huh.
 Q. -- it's about a third of the way up, do you see the sentence starting, "Participants...?"
 A. Yes.
 Q. And the participants, which are young people, thought that the Surgeon General's warnings were ineffective. Do you see that?
 A. Oh, it says "effective" here, sir.
 Q. Well let's read what it says. "Participants did not think that the current Surgeon General's warnings were effective."
 A. That's correct.
 Q. That means they're ineffective.
 A. Exactly.
 Q. All right. And they said the terminology used was too complex; correct?
 A. That is correct.
 Q. One of the terminologies used is emphysema; correct?
 A. I'm sorry?
 Q. One of the words used in reference there is the word emphysema; correct?
 A. That's correct, yes.
 Q. Do you know what emphysema is?
 A. Certainly.
 Q. Could you describe it?
 A. I certainly can.
 Q. What is it?
 A. I can't describe it in scientific terms. That's not my expertise.
 Q. Okay.
 A. I can just describe it from -- from general knowledge, not as a historian, but general knowledge. Would that -- would that serve your purposes?
 Q. That would be fine, professor.
 A. Okay. Emphysema is a disease which in fact people have difficulty breathing.
 Q. That's what you know about it.
 A. Perhaps even more than difficulty breathing, but that's essentially it, yes, sir.
 Q. All right. People who exercise a lot have difficulty breathing?
 A. Oh, no. Different kind of quality of -- of -- of -- of difficulty of breathing. By "difficulty of breathing," I mean difficulty of breathing that has in fact a negative impact on one's well being, one's health, so on. Not from -- difficulty breathing from running a lap around the courtroom or something like that, no.
 Q. When did you learn about emphysema, as you say it means having difficulty breathing?
 A. I'm sorry?
 Q. When did you learn that, that emphysema meant difficulty breathing?
 A. It's hard for me to say when. It's probably some of the general information that one accumulates and assimilates over time.
 Q. It certainly wasn't when you were a youth; correct?
 A. No.
 Q. No.
 A. No.
 Q. And you wouldn't expect youth to have any knowledge of emphysema, just as they said here; isn't that right?
 A. I have no way of knowing that, no, sir.
 Q. But that's what this focus group showed; didn't it?
 A. That's correct.
 Q. And the teen-agers or the youth that were focused in this group didn't understand carbon monoxide; correct?
 A. That's what it says here, yes, sir.
 Q. And what they're saying is they don't understand what impact that has on them; correct?
 A. That's what it says, yes, sir.
 Q. And they don't understand what impact emphysema has on them; correct?
 *25 A. That's what it says, yes, sir.
 Q. And are you aware, sir, based on the documents we asked you to review, whether there's been a sharp increase in smoking among teen-agers in the 1990s?
 A. I do not recall the -- that particular piece of information, no, sir. If you have it somewhere, I'll be very happy to review it.
 Q. That's all right.
 Do you recall how many high school students smoke at the present time?
 A. No, I do not recall that. I do not recall that number, no, sir.
 Q. Do you recall it was a large number?
 A. Yes, I do.
 Q. And do you recall that there was a big increase among teen-age smokers in the '90s, regardless of what that number is?
 A. I believe so, yes, sir.
 Q. And do you know how much money the defendants have spent on promotion, marketing and advertising during the '90s?
 A. I do not know that.
 Q. Did you ask that question?
 A. No, I did not.
 Q. Do you know whether or not the industry has made public statements with respect to the fact that they shouldn't advertise to anyone unless they're 21 years of age or older?
 A. I've seen such public statements, yes, sir.
 Q. Did you see a 20/20 transcript from the documents that we gave you where the tobacco industry said we don't promote or advertise to anyone under the age of 21?
 A. I saw that, yes, sir.
 Q. Do you think that's a good idea?
 A. I'm sorry?
 Q. Do you think that's a good idea?
 A. I have no knowledge of marketing techniques or marketing objectives or -- or things like that. That's not -- I have no -- no -- no information or no -- I don't -- I'm sorry.
 I have no opinion on that.
 Q. Well, you think it's reprehensible to market to teen- agers; don't you?
 MR. BLEAKLEY: Your Honor, this is argumentative. Counsel is testifying. It's beyond the scope of this witness's direct examination.
 THE COURT: That is argumentative.
BY MR. CIRESI:
 Q. Let me ask it this way, professor.
 A. Sure.
 Q. You used those words, "reprehensible;" didn't you?
 A. Did I?
 Q. Yes.
 A. I may have.
 Q. You used them in your deposition; didn't you?
 A. I may have.
 Q. Can you turn to page 166 of your deposition.
 A. You'll have to give me a copy --
 Q. Did I take it away from you?
 A. Yes.
 Q. I'm sorry.
 MR. CIRESI: May I approach, Your Honor?
 (Document handed to the witness.)
 A. Thank you.
 Q. 166.
 A. 166?
 Q. Yes.
 A. Yes, sir, I have it.
 Q. And at line six you said it's reprehensible; didn't you?
 A. That's what it says there, yes, sir. That's what I said.
 Q. Your words.
 A. Yes, exactly. But remember, look a few -- few lines before that.
 Q. Well you said as a historian, you have to no view on that.
 A. That's correct.
 Q. But as an individual you do.
 A. Yes.
 MR. BLEAKLEY: Your Honor, I --
 Q. Is that right?
 MR. BLEAKLEY: Your Honor, may we approach?
 THE COURT: Okay.
 *26
 THE COURT: Counsel.
 MR. CIRESI: Thank you, Your Honor.
BY MR. CIRESI:
 Q. Do you still have your deposition, professor?
 A. Yes.
 Q. Okay. And you saw where I read from there at page 166?
 A. Yes, I did.
 Q. Okay. And if you want to, you can read back up above that to see if that was in context.
 A. That's correct.
 Q. Okay. And was it?
 A. Yes, it is.
 Q. Thank you.
 Now professor, do you recall that you used a Gallup poll? And this was Defendants' Exhibit AG000149, and we'll put it on the overhead and you'll be able to see it; then you won't have to --
 A. Yes, I do recall that.
 Q. Do you recall that?
 A. Yes.
 Q. And what that says is "Have you heard or read anything to the effect that smoking may be a cause of cancer of the lung;" right?
 A. That is correct.
 Q. Now that means they could have heard something from their neighbor; correct?
 A. Could be.
 Q. Could have heard it from a friend.
 A. Could be.
 Q. Could have heard it from a family member.
 A. Possible.
 Q. And it could have been that smoking is not a cause.
 A. Ten percent said it wasn't.
 Q. Ten percent said that they hadn't heard of any --
 A. Hadn't heard, I'm sorry.
 Q. Is that right?
 A. Yes. Hadn't heard. Exactly.
 Q. So that 90 percent, for all you know, could be people that heard that it wasn't a cause.
 A. That's possible.
 Q. Isn't that right?
 A. Yeah, it's possible.
 Q. You have no idea what these folks said; do you?
 A. Not the way that particular question is phrased.
 Q. Right. And it's very important how a question is phrased in a poll; isn't it?
 A. Absolutely.
 Q. In fact, many times you have to have many questions to really find out what someone may or may not know; isn't that correct?
 A. That is correct.
 Q. That's why polls are very unscientific; isn't that right?
 A. Well they're scientific only in the sense that they give us a snapshot at that particular moment in time. "Scientific," I don't know what the word "scientific" means in that regard. It's social scientific survey research, and therefore, you know, take- it-or-leave-it as your tastes may -- may --
 Q. May be.
 A. -- may so dictate, yes.
 Q. So it's just a snapshot at a point in time; correct?
 A. Exactly. Exactly.
 Q. And here we had a snapshot of 1435 people across the country; correct?
 A. That's correct.
 Q. And so for all we know, there could have been something in the paper the day before this poll was taken which related to this issue; correct?
 A. Could be, yes.
 Q. There could have been an advertisement by The Tobacco Institute spread out nationally which said smoking does not cause lung cancer. Could be that; correct?
 A. Could be.
 Q. And the tobacco industry could have commissioned Gallup to do a poll; couldn't they?
 *27 A. They could have, yes.
 Q. And you don't know who commissioned this poll; do you?
 A. No, I do not.
 Q. You didn't ask; did you?
 A. No, I did not.
 Q. Didn't do any investigation into that; did you?
 A. No, I did not.
 Q. Can you turn --
 And what was the date of this again, sir, do you recall?
 A. Sorry?
 Q. Do you recall the date?
 A. The date of this? Yes. It's the -- the ending date is June 17th, 1954.
 Q. Okay.
 A. The beginning date is June 12th.
 Q. All right. And this was a national poll; correct?
 A. That is correct.
 Q. Okay. Can you go to Exhibit 26131.
 A. In which volume?
 Q. Which would be in volume two. I believe that's right.
 Yes.
 A. 26131?
 Q. Correct, sir.
 A. Yes, I have it.
 Q. Now you see that this is a newspaper article in the Minneapolis Sunday Tribune, March 21, 1954?
 A. Yes, I do.
 Q. About two months after this national poll; correct?
 A. Two months before the national poll. This is March and the national poll was June. So this was before --
 Q. June or January? June, I'm sorry.
 A. March -- I believe March comes before June, unless they changed the rules in court.
 (Laughter.)
 Q. Well if they have, professor, I'm not aware of it.
 A. Sorry. Sorry.
 Q. I misread it. Thank you.
 THE COURT: We'll accede to your expertise as a historian.
 (Laughter.)
 THE WITNESS: Thank you, Your Honor.
 Q. All right, professor. So we're in March of 1954; right?
 A. That's correct.
 MR. CIRESI: Your Honor, we're going to offer Exhibit 26131.
 MR. BLEAKLEY: I assume this is not being offered for the truth?
 MR. CIRESI: That's correct. The same basis that you offered them.
 MR. BLEAKLEY: Well I offered it for the truth.
 MR. CIRESI: No, you didn't. No, you didn't.
 THE COURT: Okay. This will not be received for the truth of the poll, as it was with the defendants.
 MR. CIRESI: Thank you.
 THE COURT: But it will be received.
 MR. CIRESI: Thank you.
BY MR. CIRESI:
 Q. And in Minneapolis in March of 1954, the public believed that cigarette cancer link not proved, was the headline; right?
 A. That is correct.
 Q. Did you see this when you were doing your investigation?
 A. I did.
 Q. You didn't talk about it.
 A. Pardon me?
 Q. You didn't talk about it in your direct; did you?
 A. No.
 Q. Now in 1954, did the industry also issue a Frank Statement?
 A. Yes, they did.
 Q. And did you come across that in your investigation?
 A. Yes, I did.
 Q. And can you go to Exhibit 14145.
 A. 14145?
 Q. Correct.
 A. The same book?
 Q. Yes, I believe it is, professor.
 A. Yes, I will get it in a moment.
 I have it.
 Q. Now did you read that?
 A. Did I read it? Yes, sir, I did.
 Q. And in that statement the industry said that they had a paramount responsibility to protect the public health; correct?
 *28 A. That --
 It says that in the -- in the -- in the Frank Statement, yes, sir.
 Q. That's what they were telling the public; correct?
 A. That is correct.
 Q. And did you ascertain how broadly that statement was disseminated within the United States?
 A. My understanding, it was widely disseminated.
 Q. Over 400 newspapers; correct?
 A. If you say so, I will take your word for it. I assume it was in every major newspaper in the United States. I will assume that, yes.
 Q. And they also said that "We believe the products we make are not injurious to health." Correct?
 A. That's what they said, yes, sir.
 Q. Now you didn't think that was true; did you?
 A. I have no idea whether it was or not at that particular moment in time.
 Q. Well wasn't it your opinion, based on your historical analysis, that it was beyond a shadow of a doubt that people knew in the 1950s that lung cancer was caused by cigarette smoking?
 A. No, I did not say that, sir.
 Q. You didn't.
 A. I said -- I said after 1964 it was beyond a shadow of a doubt. Between 1950 and '64 there was still controversy.
 Q. You still have your deposition up there?
 A. Sorry?
 Q. Do you still have your deposition?
 A. I have my deposition, yes.
 Q. Can you turn to page 190.
 A. One nine zero?
 Q. Yes.
 A. Yes, sir.
 Q. Can you take a look at -- back up a little bit to page 189.
 A. Yes, sir.
 Q. Starting at line 12.
 A. Line 12, yes, sir.
 Q. "Question: Okay. And when, as a historian, in your analysis of these documents would you say was the first time in a year, pick a year, that beyond a shadow of a doubt cigarette smoking caused cancer?" Do you see that?
 A. I do.
 Q. And what did you say?
 A. I said "Sometime in the 1950s."
 Q. And then the next question was: "Okay.
 "Answer: I can't point the pin -- I can't pinpoint the exact date. But sometime in the 1950s."
 A. Yes.
 Q. So that's what you said; didn't you?
 A. That's what it says here. That's what I said at the time, yes, sir.
 Q. Under oath; correct?
 A. Under oath, yes, sir.
 Q. And you also said it was beyond a shadow of a doubt that it caused larynx cancer; correct?
 A. Yes, sir. That's what I said then, yes.
 Q. You also said it was beyond a shadow of a doubt that it caused pulmonary disease; correct?
 A. That is correct.
 Q. You also said it was beyond a shadow of a doubt that it caused emphysema; correct?
 A. My response was "uh-huh."
 Q. That meant yes; didn't it?
 A. Oh, yes, it does.
 Q. You also said it was beyond a shadow of a doubt that it caused heart disease; correct? Is that correct, sir?
 A. I'm sorry, I don't see the heart disease part.
 Q. Right at line five, page 190.
 A. Line five. I got it, yes, sir. I lost my place. Sorry.
 Q. And these were all based on your statements you said as a historian; isn't that right?
 *29 A. Yes.
 Q. What were you relying on to make those statements under oath in September 17, 1997?
 A. Uh-huh.
 Q. What were you relying on?
 A. I was relying on the same material I was relying on throughout my study of this subject matter.
 Q. But you just said that it wasn't until 1964 when you came into court here today, --
 A. 1964, --
 Q. -- didn't you?
 A. -- I think it was by then no longer a question of debate.
 Q. But here you said it was beyond a reasonable doubt. Isn't that no longer a question of debate?
 A. In the 1950s there was beyond a reasonable doubt for many, many observers, scientists and others, yes.
 Q. Well --
 A. But it was not yet beyond a reasonable doubt for the public.
 Q. Do you say here "for the public?"
 A. I'm sorry, no, I did not. But then again under deposition there was limited time to in fact limit the kind of responses, you know.
 Q. Well you weren't limited to give your responses.
 A. Pardon me?
 Q. You weren't limited to give your response.
 A. Not at all. But may I remind Mr. Ciresi and others that someone who is not accustomed to giving depositions sometimes is under pressure of the kind that one sometimes either misspeaks or doesn't completely get the full response out that one wants.
 Q. Well sir, this --
 A. That's a normal -- normal human kind of failing.
 Q. Well this went on over a series of pages; didn't it?
 A. It went on for at least two as I see here.
 Q. Now the Surgeon General didn't say those things in 1954; did he?
 A. No.
 Q. And did you get that information from the internal documents of the defendants?
 A. No, I have not.
 Q. Well if that was true, what you said under oath, then what the industry said to the American public was false; wasn't it?
 A. I have no way of knowing that one way or another.
 Q. Sir, if what you said was true, --
 A. Yes.
 Q. -- then what the industry said was false; correct?
 MR. BLEAKLEY: Objection, Your Honor, this goes beyond this witness's direct testimony.
 THE COURT: No. You may answer that.
 A. I have --
 Again, I have no way of knowing that, what the industry said was false, no, sir.
 Q. Sir, the industry said in the Frank Statement, "We believe the products we make are not injurious to health." Do you see that?
 A. I do.
 Q. If it was beyond a reasonable doubt that scientists and doctors knew that cigarette smoking caused all of those diseases, that statement was false; wasn't it?
 MR. BLEAKLEY: Same objection, Your Honor. It's also argumentative.
 THE COURT: Well you want to answer it one more time?
 THE WITNESS: I -- I really have no way of answering that question, sir.
 THE COURT: Okay, then it's been answered.
 THE WITNESS: Uh-huh.
BY MR. CIRESI:
 Q. Do you know if the industry, in disseminating information to the public -- other than Liggett, the smallest manufacturer -- has ever said that smoking causes any disease?
 *30 A. I have not come across that, no, sir.
 Q. In all of the work that you looked at, all of the newspaper articles, you have never seen that once; have you?
 A. That's correct.
 Q. They haven't said it about lung cancer; have they?
 A. No.
 Q. They haven't said it about larynx cancer?
 A. No.
 Q. They haven't said it about chronic obstructive pulmonary disease?
 A. No.
 Q. They haven't said it about heart disease?
 A. No.
 Q. They haven't said it about oral and mouth cancer?
 A. No.
 Q. They haven't said it about pancreatic cancer?
 A. No.
 Q. They haven't said it about bladder cancer?
 A. No. At least I haven't seen it, if they have.
 Q. Did you want your investigators to be complete when they were looking at this information, sir?
 A. Certainly was.
 Q. Now you didn't do any type of analysis of the public to see what in fact the public was reading; did you?
 A. No.
 Q. So you have no idea what segment of the public, if any, was reading medical journals?
 A. Not in any specific knowledge, but general, yes.
 Q. You don't have any idea what segments of the public was reading what part of the paper and which papers; do you?
 A. No.
 Q. You mentioned in your period going up to 1964, or to 1964, some School Health News.
 A. Yes.
 Q. Do you remember that? Put out by the Department of Health?
 A. Yes.
 Q. And you mentioned that the Board of Health adopted the '64 Surgeon General report. Do you remember that?
 A. I do.
 Q. Do you remember that you talked about School Health News in 1964? Do you remember that?
 A. I'm sorry?
 Q. The School Health News --
 A. Yes, I do.
 Q. -- from 1964?
 A. I do remember that, yes, sir.
 Q. And I believe what you said the purpose of these things was to educate teachers; correct?
 A. To disseminate information to teachers, among other constituencies, yes.
 Q. To teach them; correct?
 A. Keep them informed, keep them up to date, keep them current in terms of what was going on in this particular area of health particularly, not only smoking and health, but other health --
 Q. All kinds of health.
 A. All other kinds of health, yes.
 Q. And it was up to the individual school districts how they would implement these programs; wasn't it?
 A. Yes.
 Q. Depending upon what resources they had; correct, sir?
 A. That is correct.
 Q. And the Department of Health was trying to get out information because it felt that some school districts may not have this information; isn't that right?
 A. That could be, yes.
 Q. They may not be aware of it; correct?
 A. Or not being aware of the extent of the information or the degree of information.
 Q. And these were teachers; correct?
 A. Yes.
 Q. Not children.
 A. Yes.
 Q. Not 18- or 17- or 16- or 15-year-olds; correct?
 A. Again, unless they're precocious teachers at 18.
 Q. And you mentioned that the quality of information is important; isn't it?
 *31 A. Yes.
 Q. And there's also an issue of whether or not people appreciate the information; isn't there?
 A. Yes.
 Q. Whether they can understand it; correct?
 A. Yes.
 Q. And when you have what I think you called a veritable explosion of information, you got to train yourself as to what to read and what not to read; correct?
 A. Well the explosion didn't take place all at one time. Took place, you know, day by day. So therefore, what was covered in the press, for instance, when I -- one report, couple days later or couple of months later, another report, in between other kinds of -- of coverage. But in other words, it wasn't -- that whole issue didn't dominate the press at any particular moment.
 Q. Right. And if someone didn't catch it one day, they might not see it at all; isn't that right?
 A. Not likely, because there was follow-up.
 Q. Sir, if they didn't catch it one day, they may not see it at all; correct?
 A. Usually there's follow-up stories after major studies or major reports.
 Q. But you did no study to determine whether people saw that or didn't.
 A. No, I did not.
 Q. So they may not have seen it at all; correct?
 A. It could very well be that people bought a newspaper and just used it for -- for wrapping dead fish. Who knows? I have no way of knowing that.
 Q. So somebody would just buy -- buy the newspapers and wrap dead fish; is that it?
 A. Could be. Could be.
 Q. Some people buy the newspaper and just look at the sports page.
 A. Of course.
 Q. Some people buy a newspaper and just look at the advertisements.
 A. I don't think that there are many like that, but there may be.
 Q. There's probably more of those than people that just buy it to wrap dead fish; isn't there, professor?
 A. I would assume so. I would hope so anyway.
 Q. So would I.
 Now you talked about --
 THE COURT: Counsel, we seem to be getting a little bit beyond this person's expertise, and also I think that we'll recess for lunch.
 MR. CIRESI: Okay.
 THE CLERK: Court stands in recess to reconvene until 1:30.
 THE COURT: Unless you fish.
 THE WITNESS: Pardon me?
 THE COURT: Unless you fish.
 (Laughter.)
 (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 26, 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. CIRESI: Thank you, Your Honor.
BY MR. CIRESI:
 Q. Good afternoon, professor.
 A. Good afternoon, Mr. Ciresi.
 MR. CIRESI: Good afternoon, ladies and gentlemen.
 (Collective "Good afternoon.")
 Q. Professor, in your investigation or that of your assistants, did you discover any information with respect to whether or not the defendants stated publicly whether they had carcinogens in their smoke?
 A. No.
 Q. Did they state the opposite?
 A. I don't recall whether they said the opposite or not, but there was -- I found nothing that they said that there was.
 Q. Do you recall yesterday you were talking about Edward R. Murrow?
 A. Sorry?
 Q. Do you recall yesterday you were discussing the Edward R. Murrow programs?
 A. Yes, I do.
 Q. Okay. And do you still have your exhibits in front of you?
 A. I believe so.
 Q. If you could look at Exhibit AD305. I think that it was tab 53 for you. And I'm sorry, sir, --
 A. Pardon me.
 Q. -- I don't know which volume.
 A. What -- which volume tab?
 Q. It's tab 53.
 A. Tab -- tab 53, okay.
 Yes, sir, I have it now.
 Q. Do you recall this was the transcript of the Edward R. Murrow second show on cigarettes and lung cancer?
 A. Yes.
 Q. And do you recall that Dr. Little appeared on that show?
 A. I do.
 Q. And Dr. Little was the scientific advisor for the TIRC?
 A. That is correct.
 Q. And did you read this transcript?
 A. Pardon me?
 Q. Did you --
 A. Yes, I have. But it was a while ago that I read it completely.
 Q. All right. Can you see on the first page there a question is asked of Dr. Little, it's about halfway through: "Dr. Little, have any cancer-causing agents been identified in cigarettes?" And he says, "No. None whatever, either in cigarettes or in any product of smoking, as such." Do you see that?
 A. I do.
 Q. And then if you go on to the next page, page two, and halfway through there's another question starting with the word "Suppose...." Do you see that, sir?
 A. Yes, I do.
 Q. "Suppose the tremendous amount of research going on, including that of the Tobacco Industry Research Committee, were to reveal that there is a cancer- causing agent in cigarettes, what then?
 *2 "DR. LITTLE: Well, if it was found by somebody working under a tobacco industry research grant, it would be made public immediately and just as broadly as we could make it, and then efforts would be taken to attempt to remove that substance or substances.
 "I'd like to say this, however, that I heard a sort of a point of view -- and I'm not aiming this again at any one individual -- but a point of view that says, 'Let's eliminate the agent in tobacco that is harmful.'
 "Well, it seems to me that we can't possibly eliminate an agent that hasn't yet been identified, or the presence of which hasn't yet been proven."
 Do you see that?
 A. Yes, I do.
 Q. Now when you read the documents that I asked you to read, you found that the industry did know about carcinogens in their smoke before this interview; didn't you?
 A. I have no way of knowing that. I don't recall that specifically.
 Q. Well if they did, they should have revealed it, according to Dr. Little; correct?
 A. He said he -- he would, yes.
 Q. And it was never revealed based on what you've been able to find; right?
 A. I have not found any revelations of that whatsoever.
 Q. And can you turn to Exhibit 12581, which would be in the first volume of the exhibits that I provided to you, sir. Volume one. We're -- we're done with the one that you have there.
 A. Yes. First volume?
 Q. Yes, sir.
 A. It will just take me a little moment to get this thing organized.
 What number did you say?
 Q. 12581.
 A. 12581.
 Q. It's toward the back, professor.
 A. Yes, I realize it's numerically in order here.
 I have it.
 Q. And you see that?
 A. Yes.
 Q. That's a memo by Claude E. Teague, Jr., February 2nd, 1953?
 A. I do see that, yes, sir.
 Q. Did you read this?
 A. I must have. It was pre -- it was predesignated. I must have, but I don't recall.
 Q. Okay. Do you recall if in this memo that there had been reported the isolation of benzopyrene?
 A. I don't recall that, but I'm sure I could refresh my memory by looking at it.
 Q. Okay. This was two years before the Murrow program; correct?
 A. This was two years before the Murrow program, yes.
 Q. Can you direct your attention to page 12.
 A. Page 12.
 Q. "Carcinogens Identified in Tobacco Substances." And do you see at the end of the first paragraph under that title --
 A. Yes, I do.
 Q. -- that benzopyrene was highly carcinogenic and it had been reported from the pyrolytic distillate of tobacco?
 A. I'm sorry, what line is that on?
 Q. I'm sorry, professor, the --
 A. Oh, the last one. I see.
 Q. Do you see that?
 A. Yes, the last -- the last sentence there.
 Q. Yes.
 A. Yes, I do.
 Q. And did you read that when you reviewed this document?
 A. I must have, yes.
 Q. Okay. So the industry knew that there was carcinogens in the smoke two years before the Murrow program; correct?
 *3 A. This is what this says, yes, sir.
 Q. Now the documents in this case, sir, do you know when they first became public?
 A. No, I do not.
 Q. Do you know that they were produced in this lawsuit? You do know that; don't you?
 A. I do know that, yes.
 Q. Okay. And you're aware from reading the complaint that this lawsuit was started in 1994; correct?
 A. That is correct.
 Q. So the state never had any of these documents before 1994; did it?
 A. That's correct.
 Q. Yeah.
 A. That's correct.
 Q. So they wouldn't have had any of the knowledge that's in any of these documents before 1994; would they?
 A. That's correct.
 Q. Now professor, from your review and that of your assistants, were you able to ascertain whether any of the defendants, other than Liggett recently, ever stated that their product was addictive?
 A. I've never across -- not come across that at all, no, sir.
 Q. Not one shred of paper that ever said that publicly; correct?
 A. That's correct.
 Q. You did see --
 A. Therefore, publicly I didn't come across it.
 Q. And did you ever see one shred of paper that was public that said that the cigarette was a nicotine-delivery device that was made public by any of these defendants?
 A. I have not seen that, no, sir.
 Q. Not one.
 A. Not once.
 Q. Now when you were talking about some of the state programs, sir, many of the things that you pointed to went up to the period of 1969. Do you remember that?
 A. Yes, I do.
 Q. The School Health News and those types of things, --
 A. Uh-huh.
 Q. -- they were all before 1969. Do you remember that?
 A. Yes.
 Q. There were very few documents that you had after 1969; weren't there?
 A. I had some, but that's --
 Q. Very few though.
 A. I don't know what "few, many" are, but there were quite - - there were documents that dealt with post-'59 and post-'59 activities.
 Q. But I'm talking about up to 1969 now.
 A. Up to 1959.
 Q. '69.
 A. '69. Sorry.
 Q. '69.
 A. '69.
 Q. Most of the documents that you showed, the health newsletters and that type of thing, --
 A. Yeah.
 Q. -- they were before 1969; correct?
 A. There might have been some after, but most of them were from before 1969, yes, sir.
 I'm sorry, I misheard the -- the -- the date when you said '59. I knew there were quite a few between '59 and '69.
 Q. Right. That's fine.
 A. Yes.
 Q. And I'm sorry, my voice probably dropped.
 A. Right.
 Q. Again, if you don't hear me, just let me know. Okay?
 A. I certainly will.
 Q. Now you talked about Dr. Diehl; correct?
 A. Yes.
 Q. He was a physician?
 A. Yes.
 Q. Here in Minnesota.
 A. Yes.
 Q. Well-respected.
 A. Highly respected.
 Q. Not only highly respected in Minnesota, but highly respected throughout the country.
 A. Absolutely.
 Q. He dealt with patients; didn't he?
 *4 A. I think his specialty was not with patients. He was a public health specialist rather than a -- a clinical practitioner.
 Q. But as a public health official he dealt with patients --
 A. With individuals, yes, sir.
 Q. Yes.
 And he lived what was going on in the medical world at that time; didn't he?
 A. Yes, he did.
 Q. He knew it infinitely better than you; didn't he?
 A. Oh, certainly.
 Q. He knew everything about what was going on with regard to smoking and health at that time; didn't he?
 A. I don't know about everything, but he knew quite a bit.
 Q. And again, that was back in time when he was actually living the history; wasn't he?
 A. That is right.
 Q. And he had served for 23 years as the dean of medical sciences and professor of public health at the university; didn't he?
 A. That's correct.
 Q. And you would agree that his broad interests and responsibilities made him aware of the whole gamut of human ills and the effectiveness of medical resources to deal with them.
 A. Yes.
 Q. And when he retired in '58 from the University of Minnesota, he went to the American Cancer Society; didn't he?
 A. That is correct.
 Q. And he was the senior vice-president for research and medical affairs and deputy executive vice-president while he was there; wasn't he?
 A. He was.
 Q. And during the decade from 1958 to 1969, roughly, he dedicated and focused his attention largely on smoking and health; didn't he?
 A. That is correct.
 Q. And he did that because he was of the belief that cigarette smoking related not only to cancer but to other serious diseases and disabilities; correct?
 A. That's correct.
 Q. And he had a vital interest in knowing what type of information was
getting out to the public; didn't he?
 A. Yes, he was.
 Q. He wanted to know what people were understanding about smoking and health; didn't he?
 A. Yes.
 Q. And he gave leadership to the fight against smoking; didn't he?
 A. Yes, he was a leader in that fight.
 Q. And he wrote a book about that; didn't he?
 A. More than one book, but one that stands out, yes, sir.
 Q. And that book built to an inescapable conclusion; didn't it?
 A. Yes.
 Q. And he felt that there were no half-way conclusions in this issue; didn't he?
 A. That's correct.
 Q. And he felt that the problems could not be minimized; didn't he?
 A. That's correct.
 Q. And he felt that although there were reliable and authoritative scientific literature, that other books and magazines and articles were out there that were trying to get people to smoke; didn't he?
 A. I don't know -- I --
 I'm sorry, I couldn't get that last part of your sentence.
 Q. He knew that although there was scientific literature about smoking, --
 A. Yes.
 Q. -- that there were other books and magazines and efforts to get the public to smoke.
 A. Oh, yes. Yes.
 Q. There were continuing efforts to persuade the public that smoking was a pleasurable, socially desirable and harmless habit; isn't that right?
 *5 A. I think he makes that point in his 1969 book, yes, sir.
 Q. And that's the book you were talking about; weren't you?
 A. Yes, sir.
 Q. And who provided you with that book, sir?
 A. I provided it myself.
 Q. You did.
 A. Yes.
 Q. How did you get it?
 A. In the university library.
 Q. You did.
 A. Yes.
 Q. Did you go to the Diehl Library?
 A. Yes.
 Q. In fact the library is named after Dr. Diehl; isn't it?
 A. That's correct.
 Q. The medical library; right?
 A. Absolutely.
 Q. And in the book, in the very preface, do you recall what he said?
 A. I certainly do. I don't recall the details, but I recall the general preface, yes, sir.
 MR. CIRESI: May I approach, Your Honor?
 (Book handed to the witness.)
 Q. Now professor, that's one of the books you relied on.
 A. Yes.
 Q. But you didn't mention it; did you?
 A. I'm sorry?
 Q. You did not mention this particular book in your direct testimony.
 A. I don't recall whether it was mentioned. I know it was one of -- one of the exhibits in the book. Whether we got to that, I don't know.
 Q. But you weren't asked about that book by Mr. Bleakley.
 A. I don't recall, frankly.
 Q. And can you go to the preface.
 A. I have the foreward and the preface, yes.
 Q. And the preface at page Roman numeral IX.
 A. Yes.
 Q. We'll get it up on the screen here too, professor.
 MR. BLEAKLEY: Do we have an exhibit number here?
 MR. CIRESI: Yes, it's your Exhibit BYB000205A. And we'll offer it, Your Honor.
 MR. BLEAKLEY: 000205A?
 MR. CIRESI: 000205A.
 MR. BLEAKLEY: No objection.
 THE COURT: Court will receive 000205A.
BY MR. CIRESI:
 Q. Now on the preface he states, "Surveys indicate that most people have heard of a relationship between cigarette smoking and cancer but that many of them consider the risk small and remote. Most people know little or nothing about the heart disease, the chronic bursitis and emphysema, and the other illnesses that frequently result from smoking." Correct?
 A. Yes, that's correct.
 THE COURT: Counsel --
 Q. And he said that in 19 --
 THE COURT: Counsel, sorry to interrupt. Could you read that back, please? You didn't read that accurately.
 Q. "Most people know little or nothing about the heart disease, the chronic bursitis" --
 A. "Bronchitis."
 Q. I'm sorry, "bronchitis." Thank you, professor. I will start over.
 A. Right.
 Q. "Most people know little or nothing about the heart disease, the chronic bronchitis and emphysema, and the other illnesses that frequently result from smoking."
 A. Yes.
 Q. And he wrote that in 1969; correct?
 A. That's correct. Yes.
 Q. That would be five years after the first Surgeon General's report; correct?
 A. Yes, that's correct.
 Q. And this is a physician who dealt intimately with this issue at the time; correct?
 A. That is correct.
 *6 Q. He would be a better historian of that age than you would be; wouldn't he?
 A. He's the living practitioner, let's put it that way.
 Q. Right. He is the embodiment of the historian at that time; isn't he?
 A. He was a participant observer as we would call it.
 Q. And if you go on, sir, to the next page. Now even Dr. Diehl was surprised by the lack of knowledge of people; wasn't he? Wasn't he, sir?
 A. Yes, and that's why he wrote this book.
 Q. And he says that he was on a television news program in Phoenix, Arizona, and he was asked, "What do you think of the reports that smoking causes lung cancer?" Do you see that?
 A. I do.
 Q. Now he's not talking about chronic obstructive pulmonary disease there; is he?
 A. No.
 Q. Bladder cancer; is he?
 A. No.
 Q. Or any other type of cancer except lung cancer only; isn't that right?
 A. Yes.
 Q. And he was surprised that the public didn't know about lung cancer; wasn't he?
 A. Yes.
 Q. And --
 A. Well he was surprised that a question like that was asked. I have no idea what the public knew from that sentence.
 Q. Well he goes on to state that he had replied that he was surprised that such a question would be asked in light of all of the information on this subject; right?
 A. Right. That's correct.
 Q. And then the moderator told him this is a question that the public continues to ask; isn't that right?
 A. Yes.
 Q. And it was then that he realized that the question was not fully answered in the minds of the public; correct?
 A. That's what he says, yes, sir.
 Q. And then if you go down a couple paragraphs, he talks about a major cause of that public skepticism; doesn't he?
 A. He does.
 Q. And he says that a major cause of the public skepticism about the harmfulness of smoking has been the cleverness of advertising promoting the habit; correct?
 A. That's what he says, yes, sir.
 Q. Says, "Another cause has been the misleading propoganda of the cigarette industry." Correct?
 A. That's what he says, yes, sir.
 Q. And he gives an example of that; doesn't he?
 A. Yes, he does.
 Q. And an example of that is an article that was in True magazine; correct?
 A. Yes.
 Q. That more than a million persons in the country received copies of the article; correct?
 A. Yes.
 Q. And it had been reprinted from True magazine; correct?
 A. Yes.
 Q. And it went to teachers; didn't it?
 A. Pardon me?
 Q. It went to teachers; didn't it?
 A. He doesn't say so, but I assume it did.
 Q. Didn't you read that in his book, that that's who it went to, teachers?
 A. Sorry?
 Q. Did you read in the book that it went to teachers?
 A. I don't see it here, but I assume it went to teachers, yes.
 Q. And it went to doctors; didn't it?
 A. Again I don't see it here, but I assume it did.
 Q. And he --
 And the reprint had a statement with it; didn't it?
 *7 A. Sorry?
 Q. The reprint had a --
 A. Oh, yes.
 Q. -- statement with it; correct?
 A. Yes.
 Q. And it said, quote, "As a leader in your profession and your community, you will be interested in reading this story about one of today's controversial issues, dash, the editors;" correct?
 A. That's what it says there, yes, sir.
 Q. And it goes on to state, "A few months later a similar article appeared in a nationally distributed tabloid under the heading 'Most medical authorities agree - cigarette lung cancer is bunk -- 70,000,000 Americans falsely alarmed."'
 THE COURT: Counsel, counsel --
 Q. Correct?
 THE COURT: Counsel, reread that.
 Q. "'Most medical authorities agree -- cigarette lung cancer link is bunk -- 70,000,000 Americans falsely alarmed."' correct?
 A. I see that, yes, sir.
 Q. Both articles, Dr. Diehl points out, were later learned to have been written by the same person under different names; correct?
 A. That's correct.
 Q. And --
 A. That's correct as written there, yes.
 Q. And both articles Dr. Diehl states were disguised propoganda for the tobacco industry's contention that it has not been proved that cigarette smoking in any way impairs health; correct?
 A. That's correct.
 Q. And he goes on to state that his book presents scientifically and medically accepted information and judgment on the subject.
 A. Yes.
 Q. And he states that he does not claim to be a disinterested, impartial observer or reporter; correct?
 A. That is correct.
 Q. And he says he has seen too much illness, disability, and premature death attributable smoking -- to smoking to be that; correct?
 A. That is absolutely correct.
 Q. And that's because he was living that history; wasn't he, sir?
 A. Absolutely.
 Q. And if you go to Appendix C --
 A. Appendix C?
 Q. Correct.
 A. I have it before me.
 Q. And that talks about the True article; doesn't it?
 A. Yes.
 Q. And it talks about a Senator Magnuson asking an inquiry into the story; correct?
 A. Yes.
 Q. The title states, "Senator Magnuson Asks Inquiry Into Story by PR Writer; Tobacco Men Buy Reprints;" correct?
 A. Uh-huh, that's what it says.
 Q. And then it relates what happened with this article; doesn't it, sir?
 A. Yes, it does.
 Q. "It said like -- It seemed like a windfall for the tobacco industry;" correct?
 A. Yes.
 Q. It relates that "'To Smoke or Not to Smoke - That Is Still the Question' -- was the title of an article in the January issue of the True magazine;" correct?
 A. Yes.
 Q. And the article dismissed statistical evidence of cancer hazards in smoking cited by the U.S. Surgeon General; correct?
 A. That's correct.
 Q. And in that article, sent -- a reprint of which was sent to a million people, it was stated that "At the moment, all we can say for sure is that the cause of cancer isn't known and that there is absolutely no proof that smoking causes human cancer;" correct?
 *8 A. Correct, that's -- that's what he says there, yes, sir.
 Q. And from reading the documents that I asked you to read in this case, you found that the industry knew back in 1958 that smoking caused cancer; didn't you?
 A. On the basis of those documents I didn't know. The documents purport to show that, yes, sir.
 Q. That there was a report by three English scientists who came over and interviewed all kinds of people; correct?
 A. That's correct.
 Q. Including tobacco company officials; correct?
 A. That's correct.
 Q. And they said that smoking caused cancer back in 1958; correct?
 A. That's what it says in that document, yes, sir.
 Q. And that was never made public; was it?
 A. No, sir, it was not.
 Q. That's wrong; isn't it?
 A. That's a value judgment that I can't give at this moment.
 Q. You think it's wrong; don't you?
 A. I have no idea. That's not part of my --
 MR. BLEAKLEY: Objection, Your Honor, calling for a conclusion of this witness.
 THE COURT: Sustained.
BY MR. CIRESI:
 Q. Go back to Dr. Diehl's book. The story was widely promoted in advertisements and reprints which were mailed to 600,000 opinion makers around the nation; correct?
 A. That's correct.
 Q. It also was sent by five of the six major tobacco companies to their employees and shareholders; correct?
 A. Yes.
 Q. And if we go down to the portion of Dr. Diehl's book which says "'Bunk' says a tabloid," do you see that?
 A. Yes, I do.
 Q. Now it tells you who the author was; doesn't it?
 A. The next paragraph does, yes, sir.
 Q. Stanley Frank, an employee of Hill & Knowlton; correct?
 A. That's what he says, yes, sir.
 Q. A long-time public relations representative for the industry's Tobacco Institute; correct?
 A. That is correct.
 Q. And it reports here in Dr. Diehl's book that "The reprints and ads, ostensibly a True promotion, actually were paid for and handled by Tiderock Corporation, a second public relations firm hired by The Tobacco Institute last October;" correct?
 A. Yes.
 Q. And then it goes on to state that more recently, in the March 3rd issue of the National Enquirer there was another story; correct?
 A. Yes.
 Q. And the headline in that one is that "Cigaret Cancer Link is Bunk;" correct?
 A. Uh-huh.
 Q. And the byline of the author in that article was Charles Golden; correct?
 A. Yes.
 Q. But that the editor of the Enquirer said the real author was Mr. Frank; correct?
 A. Yes.
 Q. The same Mr. Frank that worked for Hill & Knowlton; correct?
 A. That's, I assume, the same one who worked for Hill & Knowlton.
 Q. The same Mr. Frank who's the author, the acknowledged author in the True magazine; correct?
 A. Yes. Yes.
 Q. So he put a different name on an article and put it in a different magazine; correct?
 A. Yes.
 Q. And he's working for the tobacco industry; correct?
 *9 A. Yes.
 Q. And he, Mr. Frank, at first flatly denied the authorship of the Enquirer; didn't he?
 A. I'm sorry, I can't see that.
 Q. Next -- next paragraph.
 A. Oh, yes, I see it now. Uh-huh. Yes, sir.
 Q. And then a week later he conceded he had written it; correct?
 A. Yes.
 Q. And he said, "You've got me on that one;" correct?
 A. Yup.
 Q. They got him on a lie; correct?
 A. That's what he says, yes.
 Q. They got him on a lie; didn't they?
 A. I said that's what it says, yes.
 Q. And he was lying on behalf of the industry; wasn't he?
 A. I assume so.
 Q. And sir, if you go over to the next page there, 219, "Dispute over a book," do you see that?
 A. "Dispute over a book," yes, I do see that.
 Q. It's a similar issue that arose here over publication of a book, "It Is Safe To Smoke;" correct?
 A. Yes.
 Q. And the book concluded it was safer to smoke cigarettes having a charcoal filter; correct?
 A. That's what it says, yes, sir.
 Q. Have you read Mr. Schindler's testimony in this case?
 A. Pardon me?
 Q. Have you read Mr. Schindler's testimony in this case?
 A. Which testimony? Sorry, sir.
 Q. Mr. Schindler.
 A. No, I don't believe so. Did I --
 Q. Have you read anybody's testimony in this case?
 A. No, sir, I have not.
 Q. And you see in the next paragraph there that Hawthorn's chairman and president, W. Clement Stone, said there was a lot of things that happened with the book that he didn't approve of; correct?
 A. Yes, I see that.
 Q. They were the publisher of the book; correct?
 A. Yes.
 Q. And they agreed to discontinue sales of that book; correct?
 A. Yes.
 Q. And the Federal Trade Commission began investigating that advertisement; correct?
 A. Yes, that's what --
 I see that's in that paragraph, yes, sir.
 Q. And there's also an indication here in the next paragraph that a well- known Washington journal -- journalist reports that she was approached by a tobacco industry representative and asked if she would put her name on an article attacking the Surgeon General's report on smoking and health. Do you see that?
 A. I do.
 Q. Do you know how many articles were published over how many years attacking the Surgeon General by the tobacco industry?
 A. I do not -- do not -- do not know the number, no, sir.
 Q. Do you know how many --
 A. I know there were quite a few, but I don't know --
 The exact number I couldn't tell you.
 Q. Do you know how many were authored by surrogates, people they paid to put their names on?
 A. I assume the ones that we have read about here from Dr. Diehl are some instances of that. I don't know of any others. There may be others.
 Q. But you know that practice was undertaken by the industry; don't you?
 A. I --
 MR. BLEAKLEY: Objection, Your Honor.
 A. While --
 MR. BLEAKLEY: Objection, Your Honor.
 THE COURT: Okay.
 *10 MR. BLEAKLEY: I don't believe there's any good-faith basis for that question.
 THE COURT: Objection sustained.
 Q. Based on your reading, you know that; don't you?
 A. No, I do not.
 Q. You don't.
 A. No.
 Q. Do you think Dr. Diehl was being accurate?
 A. Oh, Dr. Diehl's account? Yes, I believe his account implicitly. Yes, sir.
 Q. What you're saying is you don't know of any other ones besides Dr. Diehl's.
 A. Exactly. That's what I'm saying.
 Q. And you haven't investigated that to find out if there were any others; have you?
 A. No, I have not.
 Q. Can you turn, professor, to page 220.
 A. 220?
 Q. Yes.
 A. That's the next page.
 Q. Next page.
 Now do you see here that the public relations agency ordered 607,000 copies of that?
 A. Yes, I do.
 Q. And that the five tobacco companies ordered 449,000 copies?
 A. I see that, yes.
 Q. And do you see that the promotional ads for the True article were paid for by the individual tobacco companies through Tiderock?
 A. I see that, yes, sir.
 Q. And do you see that Mr. Wells, the executive vice- president of the agency, said that Tiderock was exploring various ways to get the tobacco industry's side before the public?
 A. I do see that.
 Q. And then do you see the title "TRUE MAGAZINE AND THE CIGARETTE INDUSTRY?"
 A. I do.
 Q. "A comment from The American Cancer Society?"
 A. Yes.
 Q. And do you see who received that article?
 A. Yes.
 Q. Physicians received it; didn't they?
 A. Yes.
 Q. Lawyers received it; --
 A. Yes.
 Q. -- correct?
 School teachers received it; correct?
 A. Correct.
 Q. And many others; correct?
 A. That's what the American Cancer Society says, yes, sir.
 Q. And they're saying that that article claimed there was absolutely no proof that smoking caused human cancer; correct?
 A. Correct.
 Q. And do you see over on the next page, 221, --
 A. Yes.
 Q. -- that Dr. Diehl reports that there was an immense distribution through opinion leaders which purports to come from the editors of True?
 A. I see that, yes, sir.
 Q. And Tiderock had paid for this; correct?
 A. I assume so, but I don't see that appear -- unless it's in a subsequent paragraph.
 Q. And do you see in the next paragraph, the third one from the bottom --
 A. Third from the bottom?
 Q. Yes.
 A. Yes. Yes.
 Q. -- that the article ignored the Public Health Service report of 1967?
 A. The third from the bottom did you say?
 Q. Yes.
 A. "The article opens" -- is that the one?
 Q. I'm sorry, I should direct you to it a little --
 A. Sorry.
 Q. Third paragraph from the bottom.
 A. One, two, three, yes.
 Q. And the last sentence.
 A. Oh, I see. Yes, I do see that now, yes.
 Q. "The article ignores the Public Health Service report of 1967, 'The Health Consequences of Smoking,' wh