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 30, 1998
A.M. Session
JUDGE: Hon. Judge Kenneth J. Fitzpatrick, Chief Judge
THE CLERK: All rise. Ramsey County District Court is again in session, the Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning.")
THE COURT: Counsel.
MR. WEBER: Thank you, Your Honor.
Dr. Townsend.
DAVID E. TOWNSEND called as a witness, being previously
sworn, was examined and testified as follows:
BY MR. WEBER:
Q. Good morning, Dr. Townsend.
A. Good morning.
MR. WEBER: Good morning, ladies and gentlemen.
(Collective 'Good morning.")
Q. Dr. Townsend, if you remember where we were last
Friday when we broke, you had identified two methods of design or engineering,
one selective reduction, one general reduction.
A. That's correct.
Q. And do you recollect that we had also talked
about the 1989 Surgeon General's report, a number of compounds that had
been identified over time?
A. That's correct.
Q. And some of those compounds had been identified
as potentially hazardous; correct?
A. Yes.
Q. Now, did the selective reduction theory and design
efforts focus on compounds that had been claimed to be hazardous in cigarette
smoke?
A. It did. That was the -- the center of selective
reduction.
Q. What was Reynolds' first major effort in the
selective- reduction area?
A. It was in the area of trying to reduce or eliminate
benzpyrene.
Q. Is that also referred to as shorthand as BaP?
A. That's correct.
Q. What is BaP, doctor.
A. BaP or benzpyrene is a polycyclic aromatic hydrocarbon,
it's a multi- ring aromatic organic compound.
Q. And is it present in cigarette smoke?
A. Yes, it is.
Q. And in what quantities, doctor?
A. Well we know today that it's present in cigarette
smoke at the nanogram level, which again the billionths-of-gram-per- cigarette
level.
Q. Based on your background in chemistry, is BaP
present in other things we eat and drink as well?
MR. CIRESI: Objection, Your Honor, it's irrelevant.
THE COURT: No, you may answer.
A. It is present in a number of other things, agricultural
products, from exposure to air pollution, it's present as a result of pretty
much any combustion system, including diesel exhaust, automobile exhaust.
So there are a number of places that BaP is found.
*2 Q. Roasted foods?
A. Absolutely.
Q. How does the BaP level in smoke compare with
BaP levels found in other things that people come in contact with?
MR. CIRESI: Objection, irrelevant. There's no qualifications
for this witness to testify to biological significance.
THE COURT: Sustained.
BY MR. WEBER:
Q. Without commenting on the biological significance,
but purely as a matter of chemical analysis, how does the BaP level in
smoke compare with the BaP level in other things that people eat and drink,
doctor?
MR. CIRESI: Objection, irrelevant.
THE COURT: You may answer that.
A. The level of BaP in cigarettes compared to, say,
for example, a charcoal-broiled steak, is actually very interesting. A
charcoal-broiled steak, it turns out, when the fat drips from a steak on
the grill, the fat can land in the -- in the hot coals. The fat then undergoes
-- undergoes pyrolysis, similar to what we were talking about Friday, and
-- and can actually form benzpyrene, which is then carried back up to the
steak and deposited on the steak.
Typical levels of BaP in a charcoal-broiled steak
are roughly the equivalent of about 600 cigarettes' level of BaP.
Q. Now Dr. Townsend, how is it that BaP became the
focus of the first major effort at selective reduction at Reynolds?
A. I think there were two major reasons that BaP
was the first focus for selective reduction. First of all, benzpyrene had
previously been known to be carcinogenic; that is, it caused excess tumors
in mouse skin- painting studies when applied as a neat solution. The second
reason that benzpyrene was focused on was because it was thought to be
present in -- from pretty much any combustion system, diesel exhaust, burning
leaves, and probably a burning cigarette. So it certainly was the focus
because of both of those reasons.
Q. Now what did the researchers at Reynolds do regarding
selective reduction and benzpyrene?
A. Well we did three -- three major things. The
first thing was to determine if in fact benzpyrene was present in cigarette
smoke. The second -- and we did determine that, yes, it was present. The
second thing was to determine the level, and we found that the level of
benzpyrene in cigarette smoke is typically in the -- in the nanogram range,
as I've already said. And then the third major thing we tried to do was
to reduce or eliminate the levels in -- in mainstream cigarette smoke.
Q. Now doctor, before we get into those methods
of attempting to reduce or eliminate, I want you to assume that plaintiffs
have raised a question in this case about whether it was known outside
of the cigarette companies and in the public literature as to whether BaP
was presented in smoke, and that in this regard plaintiffs referred to
the document that's at tab eight, which is PX12418, an R. J. Reynolds document
which is in evidence.
A. You said tab eight?
Q. Tab eight. Memorandum of Dr. Rodgman's dated
November 2, 1959. Do you see that?
*3 MR. CIRESI: The exhibit, please.
MR. WEBER: I'm sorry, I thought I said that. PX12418.
A. I have it.
Q. And also a Brown & Williamson document marked
PX13555, which is at tab nine.
A. I see that also.
Q. All right. Now the R. J. Reynolds document is
dated November 2, 1959; correct?
A. That's correct.
Q. And let me just show the cover sheet on this
for the ladies and gentlemen of the jury so they can recollect that document.
And then for the Brown & Williamson document
marked 13555, that's the one that on page nine said that the Brown &
Williamson lab until the past had made a partial isolation and identification.
Do you see that?
A. Yes, I see that.
Q. Now let me ask you this: Do you know whether
the presence of benzpyrene in smoke had been reported in the popular and
scientific literature prior to the dates of these memoranda?
MR. CIRESI: Your Honor, I'm going to object to counsel's
characterization of the issue as to why it was raised. It's a misstatement
of the record.
THE COURT: All right. You should rephrase your question,
counsel.
MR. WEBER: All right.
BY MR. WEBER:
Q. Let -- let me ask this: Do you know whether in
the popular or scientific literature it had been reported -- the presence
of benzpyrene in smoke had been reported in 1950?
MR. CIRESI: Objection, no foundation on the part
of this witness.
THE COURT: Okay. You may answer that.
A. I do know that, and it was reported in Reader's
Digest in 1950.
Q. Could you turn to tab 10 of the notebook. That's
Exhibit GL000089.
A. Yes, sir.
Q. And can you identify that as a January 1950 Reader's
Digest article entitled "HOW HARMFUL ARE CIGARETTES?"
A. That's correct, that's what it is.
MR. WEBER: Your Honor, I'd move the admission of
that under 902(6) as self- authenticating and under 803(16) as an ancient
document.
MR. CIRESI: It's hearsay. If he's introducing it
for notice, I have no objection to that, Your Honor.
MR. WEBER: Well under the rule, as the court and
Mr. Ciresi know, 803(16) eliminates the hearsay as an ancient document.
It's an exception to the hearsay rule explicitly.
MR. CIRESI: No, it's not an exception; you still
need the predicate. It's an ancient document with respect to a party's
statements. We have no objection to this on notice. It's self- authenticating,
Your Honor, but it's -- we have no objection on notice.
THE COURT: All right. It will be received on notice,
GL000089.
BY MR. WEBER:
Q. Dr. Townsend, could you turn to the last paragraph.
It starts on page one. And just so we see, Reader's Digest, and the date
of this is January 1950, and the article is entitled "HOW HARMFUL ARE CIGARETTES?"
Could you start this paragraph and read that at the bottom of page one
over to page two.
A. Yes. "What is -- What is this substance which
we breathe into our mouths and lungs in such stupendous clouds? It contains
a number of ominous-sounding chemicals. Medical men, however, have not
proved a case against them. But two of the chemicals are under grave suspicion:
benzo-pyrene, which chiefly affects the respiratory tract, and nicotine."
*4 Q. All right. Now this article appeared nine
years before Dr. Rodgman's document?
A. That's correct.
Q. And two years before the B&W document we
just referenced?
A. That's also correct.
Q. With reference to PX12418, which is that November
1959 memorandum by Dr. Rodgman we just referred to, let me ask you whether
the same month of that same year there was another Reader's Digest article
dealing with polycyclic aromatic hydrocarbons and smoke?
A. There was.
Q. Would you turn to page -- strike that -- tab
11, please, in your notebook. That is BYT000404.
A. I have it.
Q. Can you identify that as a November 1959 Reader's
Digest article entitled "THE SEARCH FOR 'SAFER' CIGARETTES?"
A. That's correct.
MR. WEBER: Your Honor, I'd move that under 902(6)
and 803(16) again.
MR. CIRESI: Your Honor, again under notice we have
no objection.
THE COURT: All right. Court will receive BYT000404.
MR. WEBER: Your Honor, can I approach at side-bar
just for a moment?
THE COURT: We had such a nice start this morning.
MR. WEBER: This will be a brief one, I promise you.
THE COURT: All right.
MR. WEBER: Thank you.
BY MR. WEBER:
Q. With reference to BYT000404, you've reviewed
that document?
A. Yes.
Q. Can you turn to the first full paragraph on page
44 of that article where it's entitled "The Coming Chemistry."
A. Yes.
Q. Could you read that paragraph for us, please,
doctor.
A. Yes. "The Coming Chemistry. The carcinogenic,
parenthesis, (cancer- causing) factor in cigarette smoke is much less a
mystery than it was a few years ago. Scientists are convinced that the
primary carcinogens are higher polycyclic hydrocarbons formed by the combustion
of tobacco at high temperature, parenthesis, (about 880 degrees Centigrade
in the cigarette ember). They have identified eight carcinogenic polycyclics
in tobacco smoke, and are on the trail of others."
Q. Now is benzpyrene a higher polycyclic hydrocarbon?
A. Yes, it is.
Q. Now this says that there have been identified
eight carcinogenic polycyclics; correct?
A. That's correct. That's what it says.
Q. In Dr. Rodgman's memorandum in the same month,
November '59, how many carcinogenic polycyclics does Dr. Rodgman say are
known?
A. In the 1959 memorandum of Dr. Rodgman, he identified
eight -- or he said that there were eight known.
Q. So how does the number identified by Dr. Rodgman
compare to the number in Reader's Digest, both in 19 -- in November 1959?
A. It's the same.
Q. Now by the way, does Dr. Rodgman's memorandum
we've been referring to, PX12418, deal with any particular design or research
engineering?
A. Well it does, and he talks about attempts to
try to remove or reduce benzpyrene, he talks about some cigarette construction
issues.
Q. Does that memorandum refer to a method of potential
extraction?
A. Yes, it does on page two, particularly under
paragraph number one.
*5 Q. Okay. We'll get to a discussion of the extraction
method later.
At this point, Dr. Townsend, I'd like you to turn
to another of Dr. Rodgman's memorandum at tab 12, that's PX18187, that's
already in evidence, and I'd like you to turn to page 13, please. And 18187,
just to remind everyone, is a Dr. Rodgman memorandum, "THE SMOKING -- A
CRITICAL AND OBJECTIVE APPRAISAL OF THE SMOKING AND HEALTH PROBLEM." Do
see that?
A. Yes, sir.
Q. Could you turn to page 13 of that document, please.
A. Okay.
Q. I want you to assume there has been some testimony
earlier in this case with respect to some of the statements on page 13,
and I'd like to ask you this question. It says, "Members of the Research
Department -- this Research Department studied in detail cigarette smoke
composition," then a number of citations; correct?
A. Yes.
Q. Then it goes on to say "Some of the findings
have been published," more citations. Then, "However, much data remain
unpublished because they are concerned with carcinogenic or cocarcinogenic
compounds." Do you see that?
A. I see that.
Q. After you reviewed this memorandum, did you check
the citations there to see whether that information was or was not in the
scientific literature?
A. After I saw this statement on page 13, I did
go back to each of the references cited there after that phrase "much of
the data remains unpublished because they're concerned with carcinogenic
or cocarcinogenic compounds," I think there's something like 17 different
references, or thereabouts. What I found was that there were some papers
in that group of references that speak to identification of constituents
in smoke, particularly polycyclic aromatic hydrocarbons and a class of
compounds called phenols. There were also a number of --
A number of these references dealt with attempts
to find out how -- or the precursors to the formation of polycyclic aromatic
hydrocarbons, what those precursors are and how polycyclics could be formed.
So it was more of a basic research study. Some of these references also
dealt with analytical -- development of analytical test methods. Some of
these references also dealt with attempts at selective reduction through
certain filter additives. So there was some information there that did
speak to -- to identification of constituents. And a lot of these references
deals with things other than that, including some proprietary or patentable
information like a selective filtration attempts.
Q. Now if you could turn to page six, please.
MR. CIRESI: Excuse me, excuse me, counsel. Could
we have when that was cited, that -- that document?
MR. WEBER: The transcript reference?
MR. CIRESI: No, no, the document, when that was
given notice of. Which letter?
MR. WEBER: I'm not sure which letter, whether it's
in our letter or yours.
MR. CIRESI: Oh, no, no, the one that you gave notice
of, 18187. Can you tell us?
*6 MR. WEBER: You want --
Does Your Honor want that issue addressed now, or
--
MR. CIRESI: Yes. Because I don't believe it was
-- notice was given of that document. I just want to know which one. I
may be mistaken.
MR. WEBER: It was designated by the plaintiffs,
that's why.
MR. CIRESI: Oh. So you did not designate that document.
MR. WEBER: No. We did it after you designated it.
MR. CIRESI: May we have, then, Your Honor, the foundation
for the statements just made by the witness, what he did, where he looked?
Otherwise I'm going to move to strike that. There was no notice given on
this document by the defense.
MR. WEBER: Your Honor, the parties have through
their designation process a number of times used documents designated by
the other side in this. This is a -- this is a red herring issue in the
extreme.
MR. CIRESI: Only when we say we're going to use
that. That's the rule. Now all I want is the foundation for the doctor's
testimony as to what he did, where he looked, which documents he looked
at.
THE COURT: Well we'll give you a chance to cross-examine
him on that, counsel.
MR. CIRESI: All right.
BY MR. WEBER:
Q. Now Dr. Townsend, could you turn to page six
of this document.
A. Yes.
Q. And is there a footnote there?
A. There is. And --
Q. Could you deal with the significance of that
footnote and the text to which it refers.
A. I'll be happy to.
I said as I looked at the references that are referred
to on page 13, some of those references did refer to the identification
of polycyclic aromatic hydrocarbons. In looking through those constituents
I found that -- and -- and referring back to the entire memo and reading
the entire memo thoroughly, I found that Dr. Rodgman on page six did refer
to every one of those polycyclics as being previously reported by Davies.
And that's reference 27, it's on the -- it's -- and it's referred to in
the footnote at page six. He says, "This author discusses all the polycyclic
hydrocarbons except cholanthrene."
I dug a little further and found that Dr. Rodgman
in fact presented the identification of cholanthrene at an American Chemical
Society meeting in Atlanta a few years later.
There was another group of compounds referred to
in the identification back on page 13, and those were phenols. All of the
constituents that were phenols that were reported were also previously
identified, mostly by Van Duuren, except for two, and there were two compounds
that Dr. Rodgman identified for the first time and it was eugenol and iso-eugenol.
I found, after digging a little further, that Dr. Rodgman did in fact publish
that in the peer- reviewed journal in 1964, two years after this memo.
He also presented it at a Tobacco Chemists Research Conference in 1964.
Q. Now let's return, Dr. Townsend, to selective
reduction, and could you turn to tab 13, Exhibit 2386.
A. Yes.
Q. And let me ask you whether that's a chart that
would assist your testimony regarding the selective reduction technique?
*7 A. It is.
MR. WEBER: Your Honor, I would move X2386 for demonstrative
purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X2386 for demonstrative
-- for illustrative purposes.
BY MR. WEBER:
Q. Now Dr. Townsend, does this chart relate to techniques
of lowered or reduced BaP by R. J. Reynolds?
A. Yes, it does.
Q. Could you start at the top and discuss each of
these briefly.
A. I'll be happy to. And before I start it, let
me say that if -- if one wants to -- to determine or identify ways to reduce
or eliminate benzpyrene, there are really two general approaches that can
be taken. First of all, benzpyrene is not present in tobacco in any appreciable
quantities. It's generated when the tobacco burns. So one approach to reducing
benzpyrene may be to prevent the formation of benzpyrene, somehow interrupt
that synthesis, that pyrosynthesis. Another approach could be to selectively
remove it after it's formed. These different techniques here speak to one
or the other.
The first is the use of tobacco additives, and again
that's to the former case, to prevent the formation of benzpyrene. What
we thought, and -- and actually still think about the mechanism of formation,
is that -- is that when tobacco's burned, there are free radicals generated
and cyclized to form this polycyclic aromatic hydrocarbon, and if we could
somehow stop that cyclation, we could reduce the level of benzpyrene. Reynolds,
and I think a number of other tobacco companies and others outside the
industry, have looked at a variety of metal nitrates including palladium,
platinum, magnesium, manganese, other oxides, to try to change the burning
temperature of the cigarette and reduce the extent of this cyclization
reaction. So there have been a variety of tobacco additives examined.
Q. Are there issues raised by the addition of metal
additives to cigarettes?
A. Well I think there are a number of issues. Some
metals, for example, might form carbonyls and -- and are -- are reasonably
volatile and can be delivered in the smoke as -- as metal carbonyls, which
for some metals those compounds are of -- are quite toxic. I think there
are a number of issues. There are also some issues with the anion as well;
for example, nitrate can decompose and form a lot of nitric oxide, among
other things.
The second approach is different filter materials,
and again that's allowing the benzpyrene to form and then somehow, through
the use of alternate filters, try to selectively remove it from the smoke.
The third approach is to use different filter additives.
If we took a conventional cigarette filter and placed some compound or
chemical in the filter that can selectively absorb benzpyrene, that might
be another approach. Now we thought that it was -- I think scientists at
the time, back in the '50s, thought that was a pretty good approach. I
think they didn't understand the dynamic nature of cigarette smoke to the
extent that we know now today, because benzpyrene and most other polycyclics
are not volatile, and so the use of filter additives or alternate filter
materials doesn't necessarily or won't necessarily effect a selective reduction.
*8 The use of different cigarette papers to prevent
the formation, turns out that examination of more- porous cigarette papers
did have a small influence on the benzpyrene yield, and part of that was
because of another technique called air dilution, which we'll talk about
later.
And then finally tobacco extraction. Since benzpyrene
is formed during the burning of the tobacco, the question is, well, what
are the precursors that, when heated, form benzpyrene? Scientists at Reynolds
and -- and at other laboratories have looked extensively using radiotracers,
done extensive radiotracer studies to try to define what those precursors
are. We did find that, as a result of -- of our work, that long-chain hydrocarbons,
waxes, and in particular solanesol and others, are precursors to benzpyrene
formation. So the idea with extraction is to -- is to use solvents to try
to extract those precursors, reduce the level of precursors, so that when
the tobacco burns, you don't generate as much benzpyrene.
Q. Did Reynolds undertake work to attempt to develop
an extraction process which could be commercialized?
A. We did. We conducted extensive work on the extraction
approach.
Q. Did extraction in the end work?
A. Technically it did. We found that once we had
extracted tobaccos with solvents, and we looked at a lot of different solvents,
we found that the -- and -- and made cigarettes with the extracted tobacco,
we found that the level of benzpyrene was in fact lower. So technically
it worked. Practically, there were a number of issues, number of problems.
Q. Could you identify those for us.
A. Well there were -- there were several. The first
is these extracted tobaccos were really quite fragile, and it was very
difficult to make a -- make them into a tobacco rod because they would
break apart, they were so fragile.
Another reason, and -- and one of the most important
reasons, is that the taste characteristics of those cigarettes were really
quite, quite different. We believed that they had a very unacceptable taste
characteristic.
Another reason is that we found, when we actually
did detailed smoke chemistry on these -- on these cigarettes, we did in
fact find benzpyrene was down, but we also found that some other constituents
like phenols were elevated as a result of this extraction. So it was --
it was an unintended consequence of the extraction, really.
And then we also had a difficult time removing the
-- the solvent from the tobacco. There were still fairly high levels of
solvent in the extracted tobacco.
Q. Were Dr. Wynder and others outside the tobacco
industry working on extraction as well?
A. They were. A number of scientists were, outside
the industry.
Q. Was the scientific experience of others outside
the industry such as Dr. Wynder different from the experience at R. J.
Reynolds with respect to the extraction process?
A. No, I think their experience was just as ours.
*9 Q. Did the Surgeon General later express an opinion
regarding whether or not extraction was a practical or realistic method?
A. He did. In the 1979 report the Surgeon General
indicated that extraction of tobaccos to reduce benzpyrene was of academic
interest only.
Q. Did there come a time when Dr. Wynder and others
began to express doubts about the practical significance of the BaP theory?
A. That's correct. In -- in the late '50s, Dr. Wynder
and -- and some other scientists began questioning whether benzpyrene was
the problem with cigarette smoke, and in particular Dr. Wynder expressed
that once we had identified the level --
MR. CIRESI: Excuse me, Your Honor, I'm going to
object to the hearsay on the part of this witness.
MR. WEBER: If I just may be heard, it's not hearsay,
Your Honor, it's for statements in the literature and the effect on the
research and development issue.
THE COURT: Then you better refer to the literature.
MR. WEBER: All right.
BY MR. WEBER:
Q. Could you turn to tab 16, Exhibit CE000084.
A. Yes, sir.
Q. Is that an article by Dr. Ernst Wynder called
"TOWARDS A SOLUTION OF THE TOBACCO-CANCER PROBLEM," published in January
1957 in the British Medical Journal?
A. It is.
Q. Do you rely upon this article regarding the significance
of the amount of BaP in tar and regarding selective reduction of BaP?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission of
that under 803(18).
MR. CIRESI: No objection, Your Honor.
BY MR. WEBER:
Q. Now if you could turn to tab 17, Dr. Townsend,
is that a blown-up quote from Dr. Wynder's article?
A. Yes, it is.
Q. And that is Exhibit 238 -- X2388.
MR. WEBER: Your Honor -- oh, I'm sorry, I wasn't
looking. I'm sorry.
THE COURT: I'm sorry, I'm having trouble with the
mike up here. I'm trying to resolve it.
MR. WEBER: Okay.
THE COURT: Can you wait just a moment?
MR. WEBER: I'm sorry, I didn't notice you were talking.
THE COURT: I just want to make sure the record reflect
CE000084 is admitted into evidence. Go ahead, counsel.
MR. WEBER: Okay. Your Honor, let me start this again
because I may have been looking at my exhibits, --
THE COURT: Go ahead.
MR. WEBER: -- missed -- missed the fact that you
were consulting with the clerk.
THE COURT: No, I think that was my fault.
MR. WEBER: Well I should have been paying better
attention.
BY MR. WEBER:
Q. At X2388 at tab 17, is that a quote that you
have blown up from Mr. Wynder's article that was just admitted into evidence?
A. Yes, it is.
MR. WEBER: Your Honor, I'd move X2388 for demonstrative
purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X22 -- 2388, 2388,
for illustrative purposes.
BY MR. WEBER:
Q. All right. And is that --
Could you read that quote from Dr. Wynder's article.
A. Yes. And this is, again, from the British Medical
Journal 1957. Dr. Wynder says, "The benzopyrene content of cigarette tar
is not more than 2 parts per million, which, according to our experiments
is not sufficient to produce the type of activity noted in our animals
painted with tobacco tar."
*10 Q. Dr. Townsend, could you turn to the right
and find the 1964 Surgeon General's report. Not in -- not in the binder
there. I think it's on the shelf there. That is in evidence as PX3825.
A. The 1964?
Q. Should be up there.
A. Okay. I see it.
Q. And could you turn to page 144.
A. Okay. I'm there.
Q. And could you read this paragraph going over
to the next page.
A. Yes. It's at the bottom of the page.
Q. And just for the record, it's from page 144 and
145 of the 1964 Surgeon General's report.
A. "Tobacco smoke contains many carcinogenic polycyclic
aromatic hydrocarbons, parenthesis, (Table 2, Chapter 6). Benzo(a)pyrene
is present in much larger concentrations than is any other carcinogenic
polycyclic hydrocarbon. The inability to account for the carcinogenicity
of the tobacco products, except to a very minor degree, by the amount of
benzo(a)pyrene present was unanticipated. Both Druckrey (reference 92)
and Wynder (reference 372) emphasized that the benzo(a)pyrene concentration
of various tobacco and smoke preparations is only sufficient to account
for a very small part of the carcinogenic -- carcinogenicity of these materials.
One hypothesis suggests that promoting agents present in tobacco and tobacco
smoke, such as various phenols, enhance the potency of the carcinogenic
hydrocarbons so as to account for the biological activity of the tobacco
products. Further, possible synergism between low levels of the several
known carcinogens in the tobacco condensates and extracts may also enhance
the carcinogenic potency."
Q. Now, it refers there to a hypothesis that might
involve chemicals called phenols; correct?
A. That's correct.
Q. Did R. J. Reynolds begin work examining the hypothesis
with respect to phenols?
A. We certainly did. And -- and again, the -- the
hypothesis is that if there's insufficient benzpyrene and polycyclic aromatic
hydrocarbons to account for the mouse skin-painting results, then there
must be some other cocarcinogens or promoters that will enhance the activity
so that together they may account for the mouse skin-painting results.
We did, in fact, evaluate that hypothesis very thoroughly,
went in and tried to determine if there are phenols present in the smoke.
And there are a number of phenols. We tried to identify or - - identify
those, quantitate or determine how much of those phenols were present,
and then sought ways to reduce or eliminate those phenols.
Q. Now are phenols chemicals that are unique to
cigarette smoke, Dr. Townsend?
A. No, they are not. They are in a variety of naturally-
occurring materials: fruits, vegetables. Phenols are also used in a number
of consumer products like Chloroseptic and throat lozenges and a number
of things.
Q. Now at what levels did R. J. Reynolds find phenols
in cigarette smoke?
A. Well there -- there are varying levels. There
are -- there are a few phenols that are present in the microgram-per- cigarette
range, so that would be a millionth of -- a millionth of a gram per cigarette;
there are a number of phenols that are present in the nanogram range, again,
a billionth of a gram per cigarette.
*11 Q. Can you describe for us what techniques to
selectively reduce phenols were examined at R. J. Reynolds, some of the
major efforts.
A. I think -- I'd be happy to. I think we -- we
approached the phenol reduction in very much the same way as we did the
benzpyrene. We tried to understand how phenols were generated. We conducted
some basic research using radiotracers to try to determine what the precursors
are, and we found that lignin, the natural backbone of the tobacco, biopolymers
like lignin, were the precursors or most of the precursors. We tried to
extract or somehow prevent the formation of phenol. We looked at filter
additives, we looked at special types of filters; we looked at tobacco
additives, again, placing a number of constituents on the tobacco to try
to interrupt the formation of -- of phenols. So we pretty much followed
the same -- the same approach that we did for benzpyrene.
Q. Did any of the techniques that you investigated
meet with success with regard to reducing phenols?
A. I think there was -- there was some success.
What we found is the more volatile phenols can be selectively removed by
-- by filters if the filters are made from cellulose acetate. The -- the
selective removal of phenols is also enhanced if the cellulose acetate
filters are plasticized with certain polar compounds, like triacetin, or
in the case of one of our competitors, they used carbowax. So I think there
were -- selective filtration of the more volatile phenols certainly was
accomplished, at least to a degree.
Q. Now once --
If once you discovered that filters of cellulose
acetate particularly treated with triacetin or carbowax, could selectively
reduce these phenols, did you incorporate that -- did Reynolds incorporate
that into its product?
A. Well it was already in the products in the market.
It was sort of after the fact. These -- these techniques or these construction
variables were in the market. After the fact we learned that they did selectively
reduce phenols, the volatile phenols. I'm --
Q. Now did there come a time when the scientific
community began to raise doubts about the phenol hypothesis that was expressed
in the 1964 Surgeon General's report we just referenced?
MR. CIRESI: Object to the form of the question.
There's no foundation.
THE COURT: You may answer that.
A. I think there was a time, certainly, that the
scientific community began questioning this -- this theory, and that's
again the initiation by polycyclics and the promotion by phenols. And there
-- there were a number of major questions, one is that scientists were
beginning to learn that some phenols were thought to be tumor inhibitors,
not promoters. They also found that phenols in fact are very water soluble
and are -- are actually absorbed fairly rapidly in the oral cavity. And
so there's -- there's a lot of -- there was a lot of questions about the
theory at the time.
Q. Could you turn to tab 19, which is Exhibit AZ000804.
Do you have that, doctor?
*12 A. Yes.
Q. Can you identify that as an article from the
Journal of the National Cancer Institute in 1971 by Van Duuren, et al?
A. It is. This is an article by Van Duuren.
Q. And the Journal of the National Cancer Institute
is a highly respected journal?
A. Yes, it is.
Q. And is this article one on which you rely with
respect to information, which you and others reasonably rely, with respect
to information regarding phenols and cigarette chemistry?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission under
803(18) of AZ000804.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive AZ000804.
BY MR. WEBER:
Q. Now, could you start out on page 236 of that
--
Let me show the title page first, if I could, doctor,
article entitled "Cigarette Smoke Carcinogenesis: Importance of Tumor
Promoters;" correct?
A. Yes.
Q. And these are by scientists at NYU?
A. Yes.
Q. Now if you could go to the second page, upper
left-hand column, and read that first full sentence starting at the top
of the second page.
A. Beginning with "These experiments...?"
Q. Yes.
A. "These experiments convinced us that tobacco
tar is primarily a tumor- promoting agent and that the role of benzo(a)pyrene,"
also known as Ba -- or sorry, "paren, (BaP), as well as other carcinogenic
hydrocarbons acting as cocarcinogens and/or initiators, is not necessarily
of prime importance in tobacco carcinogenesis."
Q. Now could you turn in this same article to page
239, Dr. Townsend. I'd like you to read that first paragraph under "DISCUSSION."
A. Okay. "Although carcinogens, cocarcinogens, and
tumor- inhibitory agents in cigarette smoke condensate have been studied
extensively, the chemicals responsible for the known mouse skin carcinogenicity
of tobacco tars remain largely unknown. This is mainly due to the complex
chemical nature of tobacco tars, the resultant effects of one type of agent
on another, and the possibility that a single chemical can have multiple
biological effects. Earlier, (reference 12) we showed that some noncarcinogenic
or weakly carcinogenic aromatic hydrocarbons which are cigarette smoke
components can function as initiating agents in two-stage carcinogenesis.
These agents were earlier regarded as irrelevant in tobacco carcinogenesis.
We have also found that phenol, which is a weak tumor-promoting agent,
is indeed an inhibitor of tumorigenesis when applied simultaneously with
BaP; another example is the otherwise biologically inactive tobacco component,
rutin, which is also an inhibitor for BaP carcinogenesis in mouse skin
(reference 13). The experiments described in this report were carried out
to unravel some of these effects."
Q. Now, let me take you back to that sentence down
at the lower left-hand column which said that "we have also found that
phenol, which is a weak tumor- producing agent -- promoting agent, is indeed
an inhibitor of tumorigenesis when applied simultaneously with BaP." What
does it mean to be an inhibitor of tumorigenesis?
*13 MR. CIRESI: Excuse me, Your Honor, there's no
foundation for this witness to testify to that. He's not here to testify
on biological implications.
MR. WEBER: I can ask it chemically if you want,
Your Honor.
BY MR. WEBER:
Q. From the chemical standpoint, what does it mean
for one chemical to be an inhibitor of the effect of another?
A. A chemical that's an inhibitor would reduce the
effect or activity of another chemical.
Q. And is this one of the scientific articles that
you referred to earlier when you said the phenol hypothesis had come into
question?
A. Yes.
Q. Now Dr. Townsend, did there come a time when
a theory regarding the effects of smoke causing ciliastasis became the
focus of attention in selective reduction research?
A. Yes, there was. In the early '60s the ciliastasis
theory started gaining importance among some in the scientific community.
Q. And what was the approach of the Reynolds R&D
department to the ciliastasis theory?
A. Well again, we looked at the theory very seriously,
we listened to the scientific community and in fact interacted with members
of the scientific community to thoroughly understand the theory and see
what we could do about addressing that smoking and health theory.
Let me back up and maybe explain what -- what ciliastasis
is. That may help. Ciliastasis -- well let me back up. In -- in the upper
respiratory tract there are cilia.
MR. CIRESI: Excuse me, doctor. Your Honor, there's
no foundation for this witness to testify on biological implications. In
fact he's testified he doesn't have any expertise in that area.
THE COURT: Well I think he can define what ciliastasis
is.
A. In the upper respiratory tract there are hair-like
projections that are called cilia. The theory is that there's some constituents
in smoke that may inactivate or stop the motion of these cilia. What the
cilia do is they pretty much beat in unison to provide a major clearance
mechanism for the upper respiratory tract. The theory then is that some
constituents in smoke would stop that movement of the cilia, would reduce
or eliminate that mechanism of clearance, and so that smokers would be
exposed more to the effects of tar. So that was the theory.
We at Reynolds again, as -- as we did in the other
theories, tried to determine if ciliastats were present in smoke, and we
found a number are. We also determined the levels of those ciliastats in
smoke, and then we sought ways to reduce or eliminate those ciliastats.
Q. What levels were the ciliastats present at?
A. Well there's a wide range. Some of the ciliastats
are present in the -- in the microgram range; for example, certain aldehydes
and ketones present in the microgram range, which is a millionth of a gram.
Some ciliastats are present in the -- in the nanogram range and less.
Q. Did Reynolds and other companies find a technique
that addressed the selective reduction of ciliastats?
*14 A. Yes.
Q. Could you describe that.
A. There was a technique actually discovered in
the '60s -- or we discovered that the use of carbon filters, or carbon
particles placed in filters, or some carbon materials in filters, could
selectively remove some of the ciliastats from cigarette smoke.
Q. And how did --
Were carbon or carbonized filters put into the marketplace
by Reynolds and its competitors?
A. They were. In the -- in the early '60s there
were a number of cigarettes that used carbon filters to reduce these ciliastats.
For example, I think one of my competitors introduced a product called
Lark in roughly 1962 which gained a very sharp increase in share of the
market, up to a couple percent. R. J. Reynolds introduced a product in
1964 called Tempo with a carbon filter. It wasn't quite as successful,
unfortunately, as my competitor's. It went up only a -- less than a percent.
And then over the next number of years the overall market share of carbon
filter products tended to tail off. But there was a sharp increase in the
interest among consumers for carbon filter products.
Q. Was the increase -- did it occur shortly after
an article in the Reader's Digest about carbon filters and ciliastats?
A. Yes, it did. There was an article in Reader's
Digest referring to the ciliastasis and ciliastats in smoke and suggested
to readers that carbon filters could remove some of the ciliastats.
Q. How did carbon filter cigarettes do in the marketplace,
Dr. Townsend?
A. Well as I've already said, they -- the market
share didn't last. Over the next number of years market share trailed to
almost nothing, and one of the main reasons is that the smoke from carbon-
filtered cigarettes tastes different. It really -- the carbon -- the carbon
in the filter removes constituents which changes the taste characteristics
of the smoke, and many smokers didn't accept that taste.
MR. CIRESI: Your Honor, I'm going to move to strike
the non- responsive portion. There's no foundation for him in marketing.
MR. WEBER: Your Honor, if I may, all --
He spoke earlier on Friday about the importance
of following market data, not in marketing but following market data as
to consumer acceptance of products. That's all I'm going into now.
MR. CIRESI: Well Your Honor, then I'd like some
foundation in light of the previous testimony this gentleman has given
as to what he's relying on for those statements.
THE COURT: All right. I don't know if he's going
to start giving us information regarding the rejection by smokers, I don't
think -- I think he's getting a little beyond his expertise.
MR. WEBER: Let me ask -- I'm sorry.
THE COURT: Just as to the last sentence, that will
be stricken. The balance of his answer may stand.
BY MR. WEBER:
Q. Let me ask the last --
Or let me ask this question: What lessons did R.
J. Reynolds draw regarding the failure of charcoal filtered cigarettes
in the marketplace?
*15 A. As a product developer and a cigarette design
scientist for R. J. Reynolds, it was clear to me that the company learned
that -- that consumer acceptance of modified products is essential in the
marketplace.
MR. CIRESI: Well, Your Honor, again there's no foundation
with respect to how they marketed this or anything else in light of his
previous testimony. I'm going to move to strike that.
THE COURT: Well the answer will stand. I'll give
you a chance to cross- examine on that issue.
BY MR. WEBER:
Q. Now did there come a time when the underpinnings
of the ciliastasis theory came into question?
A. I think there were a number of questions about
the ciliastasis theory from scientists in a number of countries, yes.
Q. And did some of those questions relate to whether
or not the ciliastats reached down into the airways?
A. Yes. If --
MR. CIRESI: Excuse me, doctor. Your Honor, counsel
is continuously leading, and we're into the opinions of this gentleman.
I'd ask that he have non-leading questions.
THE COURT: I think that maybe at this point you
should start changing your phraseology.
BY MR. WEBER:
Q. Can you explain what some of those questions
were regarding the cilia -- the underpinnings of the ciliastasis theory.
A. I'll be happy to.
If you recall the ciliastasis theory, the cilia
reside primarily in the upper respiratory tract. This -- the questions
that some scientists had when they found out which ciliastats were present
in smoke and the levels that they were present in smoke was do they actually
get to where the cilia are in the first place, because many of these constituents
in smoke that are thought to be ciliastats are water soluble. And they
found -- in fact a Swedish research group, and we confirmed that at Reynolds
and a number of other researchers had found that absorption of many of
the ciliastats in the oral cavity prevented them getting to -- to a large
extent to where the cilia are in the first place.
Q. Now were there other theories that -- with respect
to other compounds or groups of compounds that R. J. Reynolds investigated
under a selective reduction approach?
A. There have been a number of theories that Reynolds
has investigated selective reduction approaches for.
Q. Does Reynolds still investigate the selective
reduction approach?
A. Yes, we do.
Q. Based on your background in cigarette design
and your review of the R. J. Reynolds research and development matters
we've talked about, was there ever a time during the '50s and '70s when
Reynolds believed there was a sustained scientific consensus regarding
just what specific compound should be the focus of selective reduction?
MR. CIRESI: Your Honor, I'm going to object to the
form of the question with regard to Reynolds. If he's asking his opinion,
it's a different story.
THE COURT: Ask him his opinion, counsel.
BY MR. WEBER:
Q. Do you have an opinion as to whether -- an opinion
based on your time while at Reynolds, the work you've done for 20 years
and the work you've described for us on Friday, as to whether there was
ever a time in the '50s to '70s when there was a sustained scientific consensus
regarding just what specific compound should be the focus of selective
reduction engineering?
*16 A. There's never been a sustained consensus
in the scientific community about what compound or compounds ought to be
removed from cigarette smoke. As scientists developed new theories, I think
new targets were placed on the table. So initially it was benzpyrene, then
some scientists started questioning that, proposed additional targets.
So there have been multiple targets. But I don't think there's been a sustained
scientific consensus on what in cigarette smoke needs to be removed.
Q. Now could you turn to tab -- back to tab four
there, which is already in evidence, GJ10043, and that's the Wynder and
Hoffmann book, "TOBACCO AND TOBACCO SMOKE" from 1967.
A. Yes.
Q. And could you turn to page 526, and I want to
ask you whether Wynder and Hoffmann made a recommendation on page 526 in
"TOBACCO AND TOBACCO SMOKE" in 1967 about nitrates in tobacco processing?
And it would be one, two, three -- middle of the fourth paragraph.
A. I almost need a magnifying glass. I'm sorry,
the bifocals don't work too well.
Q. Can you find it?
A. I -- I'm fine.
Q. Second sentence -- third --
Second sentence of that fourth paragraph.
A. Beginning with "Combining...?"
Q. Yes. Could you read that.
A. Yes. "Combining the advantages of high-nitrate
tobaccos and additions of stems to cigarette tobaccos, one would expect
an optimal 'tar' and tumorigenicity reduction in using stems of Burley
tobaccos as proportional additions."
Q. Now, if you could turn at this point to tab 14,
I want to ask whether that's a later article by Dr. Hoffmann entitled --
MR. WEBER: I'm sorry, Mr. Ciresi, that's AZ0001117.
Q. Is that a later article by Dr. Hoffmann entitled
"Formation and Analysis of N-Nitrosamines in Tobacco Products and their
Endogenous Formation" in Consumersm, published by the World Health Organization
in 1984?
A. That's correct.
Q. Is that an article that you have reviewed and
relied upon in connection with cigarette chemistry and design techniques?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission under
803(18) of AZ001117.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive AZ001117.
BY MR. WEBER:
Q. Now, did this article include a comment about
high nitrates or low nitrates in cigarettes?
A. Yes, it did.
Q. Would you turn now to tab -- your next tab, Dr.
Townsend, which is tab 15, that's X1858A, and does that compare a quote
from the Wynder Hoffmann article on high nitrates that you read earlier
to the jury from their '67 book with a quote from Dr. Hoffmann from his
1984 article that we just referenced?
A. Yes, it does.
MR. WEBER: Your Honor, I'd move the admission for
demonstrative purposes of X1858A.
MR. CIRESI: Well there's editorial comment on this
exhibit, Your Honor, it's not just quotations from the article.
MR. WEBER: It's a demonstrative exhibit, Your Honor.
MR. CIRESI: Well it's argument. I have no objection
to the quotations, but apparently they're putting argument on their demonstrative
exhibits.
*17 MR. WEBER: Your Honor, both sides have added
titles to their demonstratives.
THE COURT: Well this is --
Can you just block that copy, that statement off,
and just quote it as it should be quoted?
MR. WEBER: Okay.
BY MR. WEBER:
Q. All right. On the left, could you -- that's the
quote you read earlier from Wynder and Hoffmann in 1967 talking about advantages
of high-nitrate tobaccos --
A. That's right.
Q. -- that one would expect to reduce tumorigenicity?
A. That's right.
Q. Now on the right, what does Dr. Hoffmann say
in 1984?
A. In the 1984 article Dr. Hoffmann said, "This
trend to increase nitrate levels by using ribs and stems should be reversed
or counteracted by selecting stems with lower nitrate content or by reducing
the nitrate content of the stems by special fermentation processes, extractions
or by other means."
Q. And what's the significance to you as one in
the cigarette design field with respect to these two recommendations from
the Wynder Hoffmann group?
A. The significance to me is it points out the difficulties
in cigarette design in addressing these -- these multiple targets that
had been placed on the table, that the scientific community, I think, sincerely
is looking towards. For example, Wynder is suggesting the use of nitrates
to lower tumorigenicity, but then on the other hand he a number of years
later suggests that the other direction is the preferred route because
of yet another theory.
Q. On this same subject of selective reductions,
is there other literature of which you're aware that indicates the difficulties
with selective engineering?
A. Yes, sir.
Q. Could you turn to tab 25, and that's GJ000107,
and let me ask you if you can identify that as a book called "Banbury Report
3, A SAFE CIGARETTE, question mark," edited in 1980 by Gori and Bock?
A. That's what it says, sir.
Q. Is that a book that you became familiar with
in the regular course of your business at R. J. Reynolds?
A. Yes.
Q. Is it a book on which you and others interested
in cigarette chemistry and design reasonably rely?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission under
803(18) of GJ000107.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive GJ000187.
MR. WEBER: Judge, I may have misheard you. I think
it's 107.
THE COURT: Should be 107. If I said 187, it should
be 107.
MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
Q. Could you turn to page 355 in the Banbury Report
3 that was just admitted, and I'd like you to --
This is from 1980; correct, Dr. Townsend?
A. Yes, sir.
Q. And I'd like you to read this last full paragraph
on page 355.
A. The last full paragraph?
Q. Yes, sir. The one that begins with --
A. With "Uncertainty...?"
Q. -- "uncertainty...."
A. Yes. "Uncertainty about the specific attribution
of risks to individual smoke components may be greater than ever now, perhaps
with the exception of some fractions that have shown carcinogenic activity
in animals. Hence it has been difficult to provide a rational -- a rationale
for deliberate reductions of specific components of smoke, aside from the
self- fulfilling claims that the reduction of one or the other component
may lead to reduced risk. Additionally, if one recognizes the genuine difficulties
in selectively removing specific smoke components, it is not surprising
that the most practical solution is to reduce total smoke emission and
therefore all smoke components, and then to return to specific components
that are considered harmless and would restore desirable characteristics
of acceptability."
*18 Q. What's the significance of that statement
in 1980, the Banbury report, to you as a cigarette designer, Dr. Townsend?
A. To me as a cigarette designer it makes it clear
that Dr. Gori, as well as others in the scientific community, have recognized
that selective reduction has major limitations, that it's extremely difficult,
and that overall reduction -- reduction of total smoke is an attractive
way to go.
MR. WEBER: Your Honor, I'm going to move to another
large topic. I don't know if now would be appropriate.
THE COURT: Why don't we take a recess.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. WEBER: Thank you, Your Honor. Am I -- yeah.
Thank you, Your Honor.
BY MR. WEBER:
Q. Dr. Townsend, let's move now to a discussion
of the general reduction engineering.
A. Yes, sir.
Q. When did Reynolds begin exploring the principles
of general reduction?
A. Reynolds began exploring the general reduction
techniques and -- and the whole approach of general reduction in the early
'50s, about the same time we began exploring selective reduction.
Q. Was Reynolds the only tobacco company exploring
general reduction techniques?
A. No. I believe that all my competitors in the
United States were simultaneously exploring general reduction techniques.
Q. You spoke on Friday about the differences and
explained the differences between the selective reduction and general reduction
techniques. What I'd like you to do now is turn to tab 26, which is X2567,
and let me ask you if that's a chart that would assist you in your testimony
explaining the advantages of general reduction?
A. Yes, it is.
MR. WEBER: Your Honor, I'd move X2567 for demonstrative
purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X2767 for illustrative
purposes.
MR. WEBER: Your Honor, I think it's 2567.
THE COURT: 2567?
MR. WEBER: Yes, sir.
THE COURT: What tab number is it?
MR. WEBER: X2567.
THE COURT: What's the tab number?
MR. WEBER: Oh, I'm sorry. Tab 26 on my note. Did
I --
THE COURT: I thought you said tab 27.
MR. WEBER: I'm sorry.
THE COURT: All right. Under tab 26 it's X2567.
MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
Q. Dr. Townsend, could you go through this chart
and explain what you understand to be the advantages that -- advantages
of the general reduction approach for the ladies and gentlemen of the jury.
A. Yes, I will. And let me remind -- remind you
that general reduction is the overall reduction of all the constituents
in smoke more or less to the same degree.
We found that the advantages of general reduction
are really very technically practical. Unlike the technical difficulties
we found in selective reduction, we found general reduction is quite practical
technically. Of course general reduction, reducing all the constituents
more or less to the same degree, you address all the potential problematic
compounds, so you -- so you don't have the problem we had in selective
reduction -- or have in selective reduction with changing targets or --
or additional targets and -- and additional theories being considered by
the scientific community.
*19 General reduction, because all the constituents
pretty much come down to the same degree, more or less, you avoid the unintended
consequences like the one we found in benzpyrene where we did effect a
reduction in benzpyrene through extraction, but we found that phenols went
up. With general reduction, everything comes down pretty much to the same
degree.
And then finally, one of the big advantages of general
reduction is that you maintain the overall taste characteristics or the
balance of the smoke. You're not going in and removing one compound or
one class of compounds like the carbon filters did and upsetting the balance
of the smoke. The balance stays pretty much the same.
Through general reduction, the intensity of the
taste will go down because there's less tar and less nicotine, so the intensity
will go down, but the balance stays more or less the same.
Q. Could you turn to tab 27, which is X2767, and
let me ask whether that's a chart that's been prepared to help you explain
general reduction techniques?
A. Yes, it is.
MR. WEBER: Your Honor, I'd move the admission of
X2767 for demonstrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X2767.
BY MR. WEBER:
Q. Now, Dr. Townsend, could you go through this
chart just briefly, because some of these we'll come back and touch on
in some more detail, but explain some of these general reduction techniques.
A. Yes, I will.
If you start at the left-hand corner of this --
this exhibit, it's indicated that reconstituted tobacco is a general reduction
technique. Reconstituted tobacco is a -- is a paper sheet made of tobacco,
and we will talk about that more.
The use of filters, to the middle on the left-hand
side, of course, obviously, is a -- is a way to reduce all the smoke constituents.
So filtration, and in particular highly efficient filters, is -- is a powerful
-- a major technique and -- and very effective.
The use of porous papers, down at the bottom left-hand
corner, porous papers increase the level of air dilution admitted to the
cigarette, and we'll talk about that as well.
In the top right-hand corner, filter ventilation
is -- is a very, very important technique for general reduction.
Next down, faster burning papers, essentially what
that is is -- is by choosing and -- and identifying cigarette papers that
will burn faster, the puff count or number of puffs taken on the cigarette
will be reduced, and that's a means for -- for general reduction as well.
Then expanded tobacco, and that's essentially a
means for burning less tobacco when a cigarette is smoked, and we'll talk
about that just briefly.
And then finally at the bottom right-hand corner,
reducing the amount of tobacco burned through a number of means, including
making the circumference of the cigarette smaller, that will reduce the
amount of tobacco burned. Making the tobacco rod shorter, that will reduce
the amount of tobacco rod -- amount of tobacco burned. And then another
technique is to adjust cigarette makers so the cigarette makers actually
pack a little bit less tobacco in there, again to reduce the amount of
tobacco burned.
*20 Q. Dr. Townsend, let's start with the issue
of filtration, and if you could turn to tab 28, X2488, is that a demonstrative
that will help you explain filter -- filtration and filter modification?
A. Yes.
MR. WEBER: Your Honor, I'd move X2488 for demonstrative
purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X2488.
MR. WEBER: Your Honor, may I have the court's permission
for Dr. Townsend to come down and illustrate this board?
THE COURT: Go ahead.
BY MR. WEBER:
Q. Now Dr. Townsend, using demonstrative Exhibit
X2488, could you explain how a cigarette filter -- what are different modifications
and the purposes.
A. Right. These -- these are some of the filter
modifications that I tried to indicate on this exhibit. First of all, cigarette
filters obviously trap the particles, the particulate phase in smoke, those
little droplets that we talked about Friday, and this just represents the
particles trapped on the surface of a bundle of fibers.
Obviously, one can make a cigarette with different
materials. Most of the cigarettes sold in the United States are fiber bundles
made of cellulose acetate. The cellulose comes from wood pulp. It's acetylated
and then spun into fibers. We've also used commercially paper filters,
a lot like crepe paper, that's folded and gathered and formed into a rod
for filters. We've also looked at a number of alternative materials like
polypropylene, polyethylene, and also a number of very different materials
for selective reduction as we talked about earlier. But nevertheless, the
choice of the materials can affect general reduction.
Also, probably most people think that these little
fibers in the cigarette filter are round. They can be, and some cigarettes
have used round fibers, but more often than not cigarettes sold in the
United States have fibers that have a specific shape to them, either a
Y cross-section like in this lower part of the picture or an I-beam cross-section.
And the function of -- of -- of using -- or the reason for using fibers
that have this kind of shape is that it increases the surface area of the
fiber per unit weight and -- and increases the filter efficiency. Of course
there are unique fiber shapes -- I'm sorry, unique filter shapes to try
to further increase filter efficiency and overall general reduction.
Up in the right-hand corner we see that fiber density
is important, and if -- if one -- this probably makes sense superficially,
because if one packs more fibers in the filter, then it's going to be a
more efficient filter.
And then finally filter length. Obviously the longer
the filter, the more efficient it is in removing the particulate phase.
Q. Doctor, let me move the other chart and ask you
to draw how a filter works just as a matter of physics, if you would.
MR. WEBER: Your Honor, may I inquire, is the court
able to see that?
THE COURT: Yes, I have no problem.
*21 MR. WEBER: And can you inquire as to whether
the jury can? Okay?
THE COURT: Is that okay?
(Affirmative response.)
MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
Q. Dr. Townsend, would you, using that chart and
that paper, go ahead and explain how a cigarette filter works as a matter
of physics with the particles.
A. Well this is a fairly complicated area, particle
capture on fiber filters, but I think there are three major mechanisms
that be be considered for cigarette filters, and what I'll -- what I'll
do is just describe those three major mechanisms of how filter fibers trap
particulates. And to do this, let me draw a cross-section of a fiber, and
just to keep it simple, we'll make this a round fiber. So we're looking
at the cross- section of a round filter fiber. And if smoke is flowing
around that -- through the filter and around the fiber, the smoke will
follow stream lines generally around that single fiber, and what I'm indicating
is the flow is moving generally in that direction around the fiber, so
it diverts around. Now if a particle is traveling in the smoke stream and
it's following one of these stream lines, if the momentum is sufficiently
high either by virtue of a high velocity or a large particle mass, the
particle can actually break away, can travel following the stream lines
and can actually break away from the streamline and collide with the front
edge of the fiber, and once that particle touches the fiber, the particle
is liquid, it will stick, it doesn't generally bounce off. So we call this
kind of capture mechanism impaction.
Q. While you're writing this, --
A. Yes.
Q. -- excuse me, I want to walk over here so I can
see as well.
A. All right.
Q. Thank you.
A. A second mechanism that we think is important
in removal of smoke particulates is when a -- when a particle is following
a stream line, it doesn't have sufficient momentum to break away from that
stream line and hit the front edge as the first case, so it follows around
the fiber, but as it does it's following a stream line that's so close
to the edge of the fiber that as it goes around it touches and sticks.
We call that kind of -- that removal mechanism interception. Now that follows
the stream line, too.
And then the third major mechanism that we think
is important is when the particle is actually following the stream line
further removed from the fiber and so it doesn't touch, it doesn't have
sufficient momentum to break away and collide with the front edge, and
it's way out here from the surface of the fiber, but because this -- if
this particle is small enough, it -- there's a finite probability that
it can side step and touch the -- touch the fiber and stick. We call that
diffusional deposition. And it's because -- and it works because small
particles and molecules, of course, are -- are constantly moving in random
motion, Brownian diffusion, so a particle can also side step or actually
break away from this stream line and -- and touch the surface of the particle
and stick. That's diffusional deposition.
*22 There are other mechanisms that could apply,
but we think from the work that we've done that these are the three most
important.
MR. WEBER: Your Honor, I've marked this chart as
Exhibit 50004, and I'd move its introduction for demonstrative purposes.
That is the chart that Dr. Townsend just prepared.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive 50004 for illustrative
purposes.
MR. WEBER: Now -- I'm sorry, Your Honor, I almost
interrupted you.
BY MR. WEBER:
Q. On this subject of filters and how they work,
is it possible, Dr. Townsend, to make a filter that essentially is so efficient
that it collects all the smoke?
A. It is possible to -- to develop a filter that
will collect virtually all of the particulates.
THE COURT: Excuse me, counsel. I don't mean to interrupt,
but I don't want the doctor standing on top of the jury. If you're going
to use the exhibit, then please, can you set it up against something?
MR. WEBER: Okay.
THE COURT: Set it on the board.
MR. WEBER: Let met put it right here right now,
Your Honor.
THE COURT: Then stand on the other side so the reporter
is able to hear your testimony.
MR. WEBER: Yes, Your Honor.
THE COURT: Thank you.
A. It is possible to make a cigarette filter that
will remove virtually all the particulates by using high fiber density,
by using high-surface-area fibers, by using -- make the fiber long enough.
So yes, it is possible to remove virtually all the particulate matter.
Q. And would --
Based on your experience at R. J. Reynolds, what
would the effect of such a filter be in the marketplace?
MR. CIRESI: Well objection, Your Honor, unless there's
been some testing of it.
THE COURT: Okay. Maybe you should lay some foundation
for those statements.
BY MR. WEBER:
Q. Do you --
Based on your 20 years at R. J. Reynolds, do you
have experience as to whether efficiency of a filter affects its marketplace
performance?
A. Yes, I do.
Q. And would a filter that filtered out all the
smoke be a design which you would consider at R. J. Reynolds?
A. No, it isn't.
Q. And why would that be?
A. Because for two reasons. If a filter removes
virtually all the particulates from the smoke, there would be virtually
no taste, there would be -- and that would not an acceptable-tasting product.
The second --
MR. CIRESI: Excuse me, Your Honor, then I'm going
to object, there's no foundation for this witness with regard to what imparts
the taste. He's not qualified in that area.
THE COURT: I'll let the answer stand.
Q. Now the -- I'm sorry.
A. I'm sorry, there was a second piece to that.
The -- the second reason I think those -- those kind of filters wouldn't
be consumer acceptable is that the pressure drop or the -- how hard it
is for the consumer to draw through that filter would be so large that
it would -- it would be very difficult to -- to draw on. The consumer would
find that unacceptable as well.
*23 Q. Now I want to move now, Dr. Townsend, to
another general reduction technique you identified, and that is reconstituted
tobacco.
A. Yes.
Q. And I'd like to hand you what's been marked physical
Exhibit 1, P1 --
A. Yes.
Q. -- and ask if you could identify that as a reconstituted
-- a sheet of reconstituted tobacco?
A. This is a sheet of reconstituted tobacco.
MR. WEBER: Your Honor, I'd move the admission of
physical Exhibit P1.
MR. CIRESI: No objection for illustrative purposes,
Your Honor.
THE COURT: Court will receive P1 for illustrative
purposes.
MR. WEBER: Your Honor, what we --
When I have Dr. Townsend explain this process, could
I have the court's permission to have the bailiff just pass another sheet
through the jury?
THE COURT: No. The clerk may though.
MR. WEBER: Okay.
(Clerk complies with request.)
MR. WEBER: Thank you.
BY MR. WEBER:
Q. Dr. Townsend, could you explain the process that's
used to make reconstituted tobacco sheet.
A. Yes, I will. And let me start by saying that
one of the main reasons for inventing this process -- and Reynolds invented
this process originally back in the late '40s -- was to take pieces of
tobacco that were too small to use in cigarette manufacture and make them
into larger pieces that we could use efficiently and effectively in cigarette
manufacture. Reconstituted tobacco -- let me back up from there.
When we receive or purchase tobacco leaf, of course
it's like any leaf, it has a mid rib and then it has small stems that come
out from the mid rib, and then in between the stems is the leafy portion
of the tobacco leaf. One of the first things that we do when we receive
tobacco in -- in what we call the stemmery is we remove that mid rib and
we remove the stems, leaving sections of the leafy portion we call lamina.
The -- in -- in doing this, in separating the stems and mid rib from the
lamina, we generate a lot of small tobacco pieces, pieces that are too
small to -- to use in cigarette manufacture. And so R. J. Reynolds developed
this process, as I said, in the late '40s, to try to recover that material
and make it into larger pieces.
We do that by taking some stems and some of these
small lamina pieces that are too small, and even in some cases tobacco
dust that results from this stemming operation, and -- and -- and make
a paper sheet. And that's exactly what this is, is a paper sheet.
Now the way paper sheets are made, one takes fibers
and generally suspends them in a -- in a water solution so that you have
a lot of fibers and a lot of water, and then that entire suspension is
laid down on a wire screen. The water falls through the screen. All the
fibers, of course, are stopped -- are stopped by the screen in a random
placement, and you form a paper sheet. So that's what Reynolds wanted to
do in developing this paper sheet of reconstituted tobacco. But to do that,
because there's so much water involved in the process, Reynolds found very
quickly that it needed to extract water solubles from the tobacco materials
before the paper sheet is made.
*24 So currently the way we do this process is we
take the -- some stems, the small pieces of the lamina, and in some cases
small amount of tobacco dust, and we'll place it in a large kettle, add
water, and extract out everything that will come out in that water. We
hold that water with the water solubles to the side. We take what's left,
the fibers, the stems and the fibrous portion of the tobacco, and we make
a paper sheet just like the one we see here. And then after the paper sheet
is made on this wire screen, we take the water solubles that we held out
to the side and then we spray back on here, because it contains a lot of
flavorful compounds, nicotine and a number of other things. So we hold
that extract to the side and then reapply.
Then once we have a sheet like this, it's cut into
smaller sections and then fed through our what we call primary processing
where it's then blended with other tobaccos like flue-cured burley and
Turkish tobaccos.
Q. Is that a fresh sheet of reconstituted tobacco
or --
A. This is pretty old.
Q. Thank you.
If you'd resume your seat now.
A. Okay.
Q. Now how does reconstituted tobacco sheet compare
with normal leaf with respect to tar and nicotine?
A. Well we found, and I think the original -- the
original invention was, as I said, to use small pieces that we couldn't
otherwise use in manufacture, make it into larger pieces that we could
use -- what we found after the fact was that reconstituted tobacco actually
generates less tar because the -- primarily because the stems that are
used in the process, when pyrolyzed, don't generate as much tar as regular
lamina. Also, the stems that are used have a very low nicotine level, and
so that serves to reduce nicotine level as well as tar. Also stems in the
reconstituted sheet will increase the burn rate of the tobacco rod a bit,
so there is a slightly shorter puff count that also reduces tar level.
So two main reasons.
Q. Generally, what percentage of commercial cigarette
blends in which different tobaccos are used, what percentage of the blend
in general consists of reconstituted tobacco sheet?
A. Typically the range is around -- you know, between
15 and 25 percent. In a few brands it can get up as high as 30 percent,
a few brands maybe as low as 10 percent.
Q. Why isn't more reconstituted tobacco sheet used
in a blend?
A. Because if one goes to a much higher -- or significantly
higher level than, say, 25 or 30 percent, you start seeing off- taste problems,
you see a very different taste; consumers find that unacceptable.
Q. When the tobacco extract that you referred to,
the water solubles that are removed as part of this process, when that's
sprayed back on to the sheet in the paper-making process, is any additional
nicotine from any other source added?
A. No.
Q. Now has R. J. Reynolds from time to time used
ammonia or ammonia compounds in its reconstituted tobacco process?
*25 A. We have, some.
Q. As of 1994 what percentage of brands and styles
had some ammonia reconstituted -- ammonia processed reconstituted sheet
in the blend?
MR. CIRESI: Your Honor, may I just ask what time
in 1994?
MR. WEBER: Prior to the filing of this lawsuit in
-- let's say any time the first six months of 1994.
A. The level in 1994 was about 39 percent of the
products we sold had ammoniated reconstituted tobacco.
Q. When did Reynolds first use any ammonia in its
processing of reconstituted tobacco sheet?
A. The first commercial use of ammoniated reconstituted
tobacco was in 1974 in Camel Filter.
Q. And when was the next time that Reynolds used
ammonia in its processing of reconstituted tobacco sheet for a commercial
product?
A. We implemented ammoniated reconstituted tobacco
in Winston Filter in 1979.
Q. So from '74 to '79, the only brand that had any
ammoniated reconstituted sheet was Camel Filter?
A. I believe that's correct.
Q. Now was the use of the reconstituted tobacco
technique made known to the scientific community and the public?
A. Yes, it was, in -- in a number of ways. There
was a presentation by our CEO at the time before Congress. Back in the
'50s Wynder and Hoffmann published an entire chapter in their book on reconstituted
tobacco. It was spoken to in the Banbury report that we talked about this
morning. It was spoken to in the National Cancer Institute program toward
less hazardous cigarettes, which directed the work of the Tobacco Working
Group; reconstituted sheet or reconstituted tobacco was an important part
of that study. I think there were a number of -- a number of references
in -- in the literature.
Q. Has the use of reconstituted tobacco sheet been
evaluated in Surgeon General's reports as well?
A. Yes, it has. Also, there are a lot of patents
in the -- in the literature, in the open patent literature on reconstituted
tobacco.
Q. When you said a moment ago that reconstituted
tobacco was discussed in the Wynder and Hoffmann book, is that 1967 "TOBACCO
AND TOBACCO SMOKE," which is already in evidence?
A. That's the book I was referring to.
Q. Now let's move, if we could, Dr. Townsend, to
touch on those general reduction techniques that use the concept of using
less tobacco.
A. Okay.
Q. And I think you mentioned several have touched
on that. The reduced circumference?
A. Right. Well if we -- if we start in the bottom
right-hand corner, reduced circumference, again, will reduce the amount
of tobacco that's burned when the cigarette is burned. Shorter tobacco
rods will also, of course, reduce the amount of tobacco burned, generating
less tar. And a third way for reducing the amount of tobacco rod weight
is to make changes to the cigarette maker, to actually pack less tobacco
into the rod, make it as loose as you can and still keep a consumer-acceptable
tobacco rod. Then the major technique for further reducing tobacco weight
in a burning cigarette is the next one up, the use of expanded tobacco.
*26 Q. Now who invented the process for expanded
tobacco?
A. R. J. Reynolds developed -- invented and developed
the very first process for expanded tobacco. I think the original invention
was in the mid-' 60s, and we first commercialized it roughly in 1970, I
believe.
MR. WEBER: Your Honor, may I approach the witness
with an exhibit?
(Two glass jars handed to the witness.)
BY MR. WEBER:
Q. Dr. Townsend, I've just handed you what's been
marked physical Exhibit P10 and physical Exhibit P10A. Can you identify
what those are?
A. Yes, I can. One jar contains non-expanded tobacco
--
Q. And which is the number on the non-expanded?
A. That's Exhibit P10 contains non-expanded tobacco.
Exhibit P10A contains an equal weight of expanded tobacco. So the tobacco
in the two jars is the same weight. The expanded tobacco, obviously, fills
a larger volume.
MR. WEBER: May I move those into evidence, P10 and
P10A, physical exhibits, Your Honor, for demonstrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive P10 and P10A for illustrative
purposes.
BY MR. WEBER:
Q. And if you could just hold those up again for
a moment, Dr. Townsend, with the labels toward the back so -- toward you
so the jury could see. That's the same amount of tobacco in each jar?
A. The same weight of tobacco in each jar. The expanded
jar that I'm holding up higher obviously occupies a larger volume even
though it's the same weight as the unexpanded.
Q. Now how is it that the same weight of tobacco
can, through processing, occupy a larger volume?
A. Well that's where the name came from. We've expanded
the tobacco. We did that in --
Actually the process is not terribly different than
popping popcorn. One heats the tobacco and -- well let me -- let me back
up. One impregnates the tobacco with a solvent, and the solvent will actually
go into the cells, into the cell structure under pressure, and then when
the pressure is released and the sample is heated very quickly, the solvent
evaporates very quickly, disrupts the cell structure and actually swells
or puffs the -- the building -- the backbone of the tobacco, so it -- it
actually pops or puffs the tobacco. We also call this puffed tobacco or
expanded tobacco.
Q. How does expanded tobacco contribute to a general
reduction of tar and nicotine yield?
A. Well I think it's clear that this expanded tobacco
occupies a larger volume for an equal weight, so we can reduce the weight
of the tobacco in the -- in the cigarette and still fill the rod and have
a nice, firm rod, one that's -- that -- where tobacco pieces aren't falling
out the end.
Q. Is there a limit to the amount of expanded tobacco
that can be used in a cigarette?
A. Well technically there's not a limit. One can
make a hundred percent -- or a cigarette of a hundred percent of this.
From a practical standpoint there's a consumer acceptance limit, and it
seems like the maximum practical limit is somewhere around 50 or 55 percent
expanded tobacco.
*27 Q. Does Reynolds and other companies incorporate
expanded tobacco or puffed tobacco in their commercial products?
A. Reynolds uses expanded tobacco commercially,
and all of our domestic competitors use expanded tobacco as well.
Q. And is expanded tobacco as part of the blend
mixed in with other tobaccos?
A. Yes. What we do is take the expanded tobacco
and then we'll mix it with flue-cured burley and Turkish laminae, which
has a low density -- I mean -- yeah, a low density, and then also add reconstituted
sheet as well. So it's a blend that contains this.
Q. Let's focus on the Reynolds process for just
a moment. What --
Did Reynolds use a chemical agent as part of its
initial process to expand the tobacco?
A. Yes. The chemical agent we used in our first
invention or our -- the process we invented in the mid-'60s was freon,
or F11.
Q. Did Reynolds evaluate -- strike that.
Prior to incorporating expanded tobacco in this
process into its commercial cigarettes, did Reynolds test the smoke of
the cigarettes made with expanded tobacco?
A. Reynolds did extensive chemical and biological
testing of the smoke from cigarettes made with the freon expanded tobacco.
Q. And did it disclose that research regarding expanded
tobacco to other companies to whom it was trying to sell the process?
A. It did. We first commercialized this -- this
process and we began using it, then we wanted to license it to some other
tobacco companies around the world. We disclosed the detailed chemistry
and the biological testing that we did to the companies that were interested
in possibly licensing this. As a result of this, those companies, in some
cases our scientists as well, provided some of the information to non-industry
people; for example, the Hunter Committee in the U.K. There were some individuals
from the German Health Ministry and also some government officials from
Japan that received chemical information and the biology.
Q. Now you mentioned the Hunter Committee. Is that
the --
Was that the informal name at the time for what
was known as the United Kingdom's Independent Committee on Smoking and
Health?
A. That was at one time the informal name for the
Independent Scientific Committee on Smoking and Health, and that committee
was under -- under the auspices of the British Health Minister.
Q. And did that committee at the time have the duty
to approve or not approve additives or processes that used ingredients
with respect to commercial cigarettes?
MR. CIRESI: Objection, Your Honor, it's outside
the scope of discovery, and it's irrelevant to this action.
THE COURT: Sustained.
BY MR. WEBER:
Q. Was the use of Reynolds expanded tobacco approved
by the Hunter Committee in Britain?
MR. CIRESI: Same objection, Your Honor.
THE COURT: Sustained.
MR. WEBER: Could I approach the side-bar for a minute
on that, Your Honor?
THE COURT: All right.
*28 THE COURT: Where is the sheet of tobacco? We're
just trying to maintain control of exhibits.
MR. WEBER: For the clerk, Your Honor?
THE COURT: Please.
THE CLERK: The jars as well.
MR. WEBER: The jars are up there.
THE COURT: They should be with the clerk.
(Physical exhibits handed to the clerk.)
THE COURT: Go ahead.
MR. WEBER: Thank you, Your Honor.
BY MR. WEBER:
Q. Dr. Townsend, does R. J. Reynolds still use the
same process for expanding tobacco it initially used?
A. No, it doesn't.
Q. Does it still use freon as an expansion agent?
A. No, it doesn't. And that's --
Q. And when --
A. That's why we don't use the first process.
Q. When did R. J. Reynolds change that process,
if you recall?
A. Approximately 1988, as I -- as I recall.
Q. And what was the reason for changing that process?
A. Well, of course, freon has been implicated as
an environmental -- as -- as influencing the ozone layer, the ozone hole
that we've all heard about, so for environmental reasons we quit using
freon.
Q. Now based on the chemical work that was done
with respect to the expanded tobacco when it was tested before it was put
into commercial products, --
A. Right.
Q. -- what did R. J. Reynolds learn about whether
freon used as an expansion agent would transfer to smoke?
MR. CIRESI: Your Honor, may we have some foundation
with regard to what was done?
THE COURT: Well you can answer the question.
A. What we found from extensive chemical evaluations
of smoke with freon-treated tobacco was that we didn't see -- there --
there were trace levels, like probably no more than five parts per million
freon in tobacco, and in mainstream smoke we didn't see freon.
Q. Now let's turn, if we could, to air dilution,
and I think there are several air-dilution methods referenced on the chart
that's displayed.
A. There are two actually.
Q. All right. Which one would --
Well let's start with the dilution methods. And
what I'd do now is ask you to turn to tab 29, which is X2543. Is that a
chart you prepared to help you focus on the air-dilution methods?
A. Yes.
MR. WEBER: Your Honor, I'd move X2543 for demonstrative
purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X2543 for illustrative
purposes.
BY MR. WEBER:
Q. Dr. Townsend, could you explain how -- what air
dilution is, how it works, and how it contributes to general reduction?
A. Yes. Let -- let me start and direct your attention
to the upper portion of this exhibit, filter ventilation. Filter ventilation,
or we call it sometimes air dilution, is -- is a means for tar and nicotine
reduction, and the way that occurs is that one perforates the filter and
-- with -- and places small holes in the filter so that when a smoker draws
on the cigarette, a portion of what goes in their mouth is -- is air from
the outside. So it dilutes the smoke. The other consequence of doing that
is if a portion of the smoke that goes in a smoker's mouth is that diluting
air, then there's less air being drawn through the front end of the cigarette
where the combustion and pyrolysis take place, so there's less smoke actually
generated.
*29 Another consequence of that is once the smoke
is generated, the reduced amount of smoke generation, the velocity of the
smoke down the tobacco rod and into that front edge of the filter before
you get to the -- to the vents in the -- at the middle of the tipping paper,
the smoke is moving slower, and so it's removed more efficiently by the
tobacco rod and especially by the filter that's upstream of those air-dilution
vents. So you see, placing those perforations in the cigarette has multiple
effects. There's some interactive effects going on. And using air dilution
will increase the filter efficiency substantially. So it not only dilutes
it, it generates less smoke, but it also works interactively to increase
the filter efficiency. That's for filter ventilation.
If you'll direct your attention to the lower half
of the exhibit where I've indicated paper porosity, cigarette paper can
actually be constructed so that it has a large number of pores or holes
in the paper. Those holes can be either inherent, they can be just normal
porosity through the fiber bed, or they can be electrostatically perforated.
So you can actually place holes after the -- after the paper is manufactured.
In any event, paper -- increased paper porosity will allow air to come
in through the paper when a smoker is taking a puff on a cigarette, so
again a portion of what goes in -- into the smoker's mouth is air from
the outside. It also will reduce the amount of smoke generated and the
pyrolysis of -- of tobacco because there's less air being drawn through
that part of the cigarette. And -- and I -- I will say that paper porosity
is not as effective in reducing overall tar and nicotine as filter ventilation,
but they're both important tools.
Q. You mentioned the possible effect on filter choice
and filter efficiency by using air dilution. Does air dilution allow more
options to the designer in terms of filter efficiency?
A. Oh, it -- it allows a lot of additional options,
because -- and again, the cigarette is so interactive, if one changes one
design element of the cigarette, it ultimately affects the cigarette performance
in -- in a number of ways. The example I just used with filter ventilation
affecting the filter efficiency level is very important, and the cigarette
designer then can trade these design characteristics. For example, one
can build cigarettes with a low -- slightly lower filter ventilation level
and a higher filter efficiency, or one can build a cigarette with the opposite,
with a high ventilation level and a lower filter efficiency, and -- and
achieve essentially equivalent tar levels. So it gives the cigarette designer
some flexibility, certainly.
Q. Now Dr. Townsend, did the Surgeon General in
1979 evaluate the effects of a number of these general reduction design
techniques?
A. Yes, he did.
MR. WEBER: Your Honor, because of the detail on
this chart, we had to blow it up a little bit larger than normal, but this
is a copy of page 14- 114 of the 1979 Surgeon General's report, which is
in evidence actually under two numbers, PX3836 or MD000113, and what I'd
ask is if I could have the court's permission to have Dr. Townsend come
down and speak about some of the markings on this chart, Your Honor.
*30 A. I'll stand right here.
Q. Position yourself there.
MR. WEBER: Is he fine there, Your Honor?
THE COURT: It's fine, yes.
MR. WEBER: Okay. And hand you a pen to point it
out.
Q. If you could explain the significance of that
chart with respect to design techniques that we've been speaking about.
A. Okay. First, this is a chart taken from the U.S.
Surgeon General's report, 1979, and what we're looking at is a number of
cigarette design techniques or characteristics. Some of these we've talked
about.
Over here in the -- in the main body of the table
are a bunch of pluses and minuses, and let me make it clear what we're
talking about. If -- if an entry has two pluses, that's defined as more
than a 50 percent reduction; if it has one plus, that's defined as a significant
reduction, less than 50 percent, but still significant; if it's a plus
minus, one on top of the other, then it's an insignificant change; if it's
plus minus and a question, then it's a questionable change, I'm not really
sure; if it's a minus, it's an increase; and if it's a question, it's unknown.
So what the Surgeon General did in this -- in this
table is compare these design characteristics and talk about its effectiveness
in CO reduction, carbon monoxide, ciliatoxicity -- and you remember the
ciliastasis theory -- tar, tar reduction, nicotine reduction, BaP, also
benzpyrene, carcinogenicity, measured by mouse skin-painting, and then
the level of tumor promoters, and then on the far right are some remarks
for a few of those entries.
Let's point, first, to porosity of paper for example,
and the Surgeon General notes that the use of high porosity papers results
in a significant, more-than-a-50-percent reduction in the CO, a significant
ciliatoxicity reduction, reduction in tar, reduction in nicotine, reduction
in benzpyrene, and questionable on carcinogenicity.
If one looks at perforated filters, what we've just
been talking about in the last few minutes, perforated filters, double
plus for carbon monoxide reduction, reduction in ciliatoxicity, reduction
in tar and nicotine, carbon monoxide, and you see all the way down.
The use of cellulose acetate filters without air
dilution, again a bunch of pluses across.
To be fair, the plus minus is out here on carcinogenicity.
The use of a charcoal filter, now you see a double
plus under ciliatoxicity. Back to the ciliastasis theory.
The use of expanded tobacco, again -- well here
we see double pluses for tar and nicotine and benzpyrene, so expanded tobacco
had a major effect on the reduction of tar and nicotine and benzpyrene.
The use of reconstituted tobacco sheet, and this
entry is the one that we've employed at Reynolds, the -- the paper process,
and you'll see pluses across. There's also a different kind of reconstituted
sheet, there are different types of processes that our competitors use,
and that one also had pluses.
We can also look up here in the effectiveness of
the extraction. Remember, we tried to selectively reduce benzpyrene through
extracting the precursors to the formation of benzpyrene, and the Surgeon
General indicated that, yes, it does happen, it -- as I've already said,
there was a technical reduction in BaP, there was a reduction in tar and
nicotine as well, but the Surgeon General concluded it's of academic interest
only.
*31 If we also look down to additives to the tobacco,
and in this case nitrate additives which we've already discussed, again
here you'll see some pluses. Here's an increase in ciliatoxicity, though.
See there, there's a minus there. But there is a reduction in tar, nicotine,
BaP, reduction in carcinogenicity, but the Surgeon General concluded that
that's only of academic interest, too, because a number of scientists were
really questioning the wisdom of adding nitrate to cigarettes.
Q. Dr. Townsend, is there also a footnote down at
the bottom that relates to the charcoal filter?
A. Yes. The second footnote here says -- bifocals
work right -- "Reduction of tar, nicotine, and BaP are, in general -- are,
in general, greater with cellulose acetate filters than with charcoal filters."
MR. WEBER: Your Honor, give me just a moment, I'll
remove this and then I'll put up another one.
Q. Was this, by the way, this chart you were just
talking about, a chart made by one of the tobacco companies?
A. This chart? This is from the Surgeon General's
report.
Q. Dr. Townsend, let me now show you a chart from
an article that's admitted is 26003, PX26003. It may also have been admitted
under BYP000260.
MR. CIRESI: Excuse me, let me get it, please. BYP000
--
MR. WEBER: 000260.
MR. CIRESI: -- 260? Thank you.
MR. CIRESI: Okay.
BY MR. WEBER:
Q. On the first page I've got a --
This is a copy of a chart from Dr. Samet's article,
and that -- and that deals with a sales-weighted tar and nicotine measurement.
A. Yes.
Q. Could you explain that chart for the ladies and
gentlemen of the jury, Dr. Townsend.
A. Yes. And this is from the Department of Health
and Human Services, 1989, and that's Dr. Samet's graph. What Dr. Samet
shows here is what's called sales-weighted tar level as a function of time
beginning in 1955 and continuing to 1989, thereabouts. What Dr. Samet shows
is that the tar level of the -- the sales-weighted average tar level, and
what that is is the level of tar at which half the cigarettes sold in the
country are higher and half the cigarettes sold in the country are lower,
so it's the sales-weighted average, and in -- well, actually his graph
starts roughly 1996, and he's showing in the mid to -- oh, roughly 35,
36 milligrams of tar per cigarette, and showing that decline over time
to 1989 to about -- this -- this chart shows roughly maybe 14, 15 milligrams,
if I can estimate off from here correctly.
Q. Dr. Townsend, let me interrupt you. I think you
said the graph starts in 1996.
A. I'm sorry, 1956.
The dash line is the sales-weighted nicotine level
in the U.S. market, and in 1956 the nicotine level, if I can eyeball it
across there, is about 2.6 milligrams per cigarette, and then the nicotine
level declines to about, oh, say little over .9 in 1989.
These data are actually consistent with data that
we've -- we've generated internally to R. J. Reynolds.
*32 The other thing that Dr. Samet shows here is
the introduction of some of the main design tools that we've -- that the
industry has developed for general tar and general nicotine reduction.
Q. What's the significance of the data on this chart
to you as a cigarette designer, Dr. Townsend?
A. The main significance is that the design tools
that have been developed and in place in the market have made a major reduction
in the tar and nicotine level in the U.S. market over time.
Q. Could you sit down now and we'll proceed?
MR. CIRESI: I think the record should reflect that
I think the chart starts in '55, not '56.
MR. WEBER: '55.
THE WITNESS: But the first data point is '56.
MR. CIRESI: Okay.
MR. WEBER: I'm going to have to get better at this,
Your Honor. I'll just take a second.
(Easel moved.)
MR. WEBER: I'm going to leave this up for a moment.
Is that okay?
BY MR. WEBER:
Q. Dr. Townsend, in the course of this general reduction
we've been speaking about, have specific constituents been reduced as part
of this?
A. Yes. Through general reduction, of course, by
reducing tar and nicotine both, and reducing tar, one reduces all the constituents
of smoke more or less to the same degree, so certainly the -- the mainstream
constituents in smoke are reduced pretty much as -- as you see there on
-- on the chart.
Q. Could you turn to tab 31, which is X0523.
A. Yes.
Q. And is that a chart that represents the reduction
in benzpyrene in a Winston over a period of years?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission of
X0523 for demonstrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X0523 for illustrative
purposes.
BY MR. WEBER:
Q. Could you discuss the significance of this chart,
Dr. Townsend.
A. Yes, I will.
As a result of general reduction of tar, what we've
seen is also a major reduction in various smoke constituents. This exhibit
shows you the effect on benzpyrene over the years. It's starting -- actually
it's a two-year comparison. Starting in 1956 we measured about 52 nanograms
of benzpyrene per cigarette, 52 billionths of a gram; in 1992 we measured,
for Winston King Size cigarette, about 10 nanograms. So you see there's
been a major reduction in the benzpyrene that's pretty much more or less
paralleled the tar reduction.
Q. Now Dr. Townsend, could you turn to tab 32, that
is X1261, and let me ask whether that's a chart that relates to tar levels
-- (clearing throat) excuse me -- of R. J. Reynolds as compared to the
industry sales-weighted average?
A. Yes, it is.
Q. Would that help you in your testimony in describing
these techniques?
A. Yes.
MR. WEBER: Your Honor, we'd move the admission of
X1261 for demonstrative purposes.
MR. CIRESI: Your Honor, may I have some foundation
as to who prepared this and where it came from?
BY MR. WEBER:
Q. Dr. Townsend, how was this chart prepared?
*33 A. Staff under my direction collected the data
from internal R. J. Reynolds data.
MR. WEBER: I'd move X1261 for demonstrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive X1261 for illustrative
purposes.
BY MR. WEBER:
Q. Now Dr. Townsend, let's start with the orange
line in the middle. Is that an industry sales-weighted number?
A. The orange curve in the middle of the chart in
fact is an industry sales-weighted tar level, actually very similar to
what we've seen on Samet's chart. Slightly different scaling, because we,
you know -- but it goes over a similar time period and shows the dramatic
reduction in tar level on a sales- weighted basis.
Q. Now what does the -- I'm a little color bind,
looks like a purplish line on top, could you describe that for us.
A. Yes. Well I'll -- I'll describe both of them.
But the purple curve on the top is the highest tar products that Reynolds
marketed, manufactured and sold in any given year, as a function of time
actually. The yellow curve on the bottom is the tar level, the lowest tar
level product that R. J. Reynolds manufactured and sold in a given year.
And if you look at this chart, you see -- I think there's two major important
conclusions. First is that way back in the '50s, in the mid-'50s, there
was a range of products offered to the consumer by my company, but the
range is -- is -- looks like it ranges from about 38 to 50 milligrams per
cigarette, so maybe a 12-milligram range. If you move out to 1986 you'll
notice that the range is much bigger. R. J. Reynolds offers a much larger
range of products to -- to smokers than it used to.
The other thing is that the -- that the high and
low products offered by -- by Reynolds have come down, pretty much paralleling
the sales-weighted average, and the highest tar products sold by Reynolds
today is substantially lower than the lowest tar products sold by Reynolds
back in the '50s. So not only has the tar level come down, but the maximum,
the highest tar level product is lower than the lowest tar product we used
to sell. And the range is bigger. And you'll notice that the range in tar
level, if you look at the yellow curve, goes down almost to zero, and in
fact there are products that Reynolds sells and our competitors sell as
well that have levels of tar and nicotine so low that it's very difficult
to measure those levels.
MR. WEBER: Your Honor, I don't know what the court's
intention is as to a break. I can obviously adjust any way.
THE COURT: Are you going to a different area, or
--
MR. WEBER: Well I'm -- I could -- I've got some
more follow- up in this area, but I could break now or I could continue,
whatever the court's preference is.
THE COURT: All right. Why don't you approach the
bench now, counsel.
THE COURT: Ladies and gentlemen, we'll recess for
lunch and reconvene at quarter to 2:00.
*34 THE CLERK: Court stands in recess, to reconvene
at 1:45.
(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
30, 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. WEBER: Thank you, Your Honor. Good afternoon,
Dr. Townsend.
THE WITNESS: Good afternoon.
MR. WEBER: Good afternoon, ladies and gentlemen.
(Collective "Good afternoon.")
BY MR. WEBER:
Q. Dr. Townsend, having in mind the efforts of R.
J. Reynolds in the general reduction area that we were discussing before
lunch, I'd like to address now what the external scientific community was
suggesting regarding cigarette design and general reduction, and I'd like
to start by asking you to turn to tab 33, which is Exhibit GJ000043.
A. Okay.
Q. Make sure I can get it. Okay.
Now, is that a 1972 article that appeared in the
Journal of the National Cancer Institute entitled "Sugar Content of the
Tobacco and pH of the Smoke in Relation to Lung Cancer Risks of Cigarette
Smoking?"
A. Yes, it is.
Q. And if you look at the first footnote there,
is this a document that was presented at a workshop of the Second World
Conference on Smoking and Health in London?
A. Yes, it is.
Q. And is this a document on which you rely with
respect to matters of smoke chemistry and cigarette design?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission of
GJ000043 under 803(18).
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive GJ000043.
BY MR. WEBER:
Q. Now this is a document from a publication from
the Journal of the National Cancer Institute, 1972, and I want to ask you
whether attached to the article, the last page, are a series of recommendations
that members of the workshop made to the Second World Conference on Smoking
and Health?
A. The last page, and that's page 1891, is a list
of recommendations from that workshop.
Q. Now I'd like to start out with --
And does this include recommendations to smokers,
to manufacturers, and to governments?
A. It includes recommendations to all three.
Q. Let's go to paragraph one which relates to recommendations
to smokers. Do you see that?
A. Yes.
Q. And the first one is -- it says "The smoker who
at present cannot quit should practice the following," then it goes on
to say don't inhale. Do you see that?
*2 A. Yes.
Q. Then it recommends to the smoker fewer puffs,
not to smoke all the way down, and then what's the next recommendation
that was made to the World Conference on Smoking and Health to -- recommendations
to the smoker?
A. It says to use low tar and low nicotine cigarettes.
Q. Now could you move down to recommendation number
two. And those are recommendations -- these are recommendations, again,
made to the Second World Conference on Smoking and Health?
A. Yes.
Q. Paragraph two are recommendations made to manufacturers;
correct?
A. That's correct.
Q. Could you read paragraph two.
A. Yes. "Recognizing the difficulty of changing
human smoking behavior, the Workshop stresses the need to modify tobacco
products. The manufacturer should be encouraged to produce cigarettes with
increasingly low -- lower tar and nicotine yields. This could be accomplished
without legislation by self- policing and cooperation between the tobacco
industries in various countries."
Q. And does that recommendation urge cooperation
in this effort among tobacco companies?
A. Yes.
Q. I'd like you to go down to the third recommendation
where it talks about recommendations to governments. Do you see that?
A. Yes.
Q. Could you read a), the first recommendation to
governments there.
A. Yes. It says the "Government agencies should
be responsible for:
"The regular publication of tar and nicotine levels
-- determined by international standardized techniques -- of all smoking
products for dissemination to the public."
Q. And is the FTC method a standardized test?
A. Yes.
Q. Now let's move later in the '70s. You should
have a chapter 14 of the 1979 Surgeon General's report up there, both you
and the court, in a separate copyset. That is previously admitted as PX3836.
A. I'm sorry, which one?
Q. Chapter 14.
A. Oh, I see.
Q. And could you turn to page 14-108 in chapter
14 of the 1979 Surgeon General's report.
A. 14-108. 108, okay.
Q. And what I'd like you to focus on is that top
paragraph under "Tar." Would you read that first paragraph, please, --
A. Yes.
Q. -- from the 1979 Surgeon General's report.
A. Yes. "In the experimental setting, a dose response
has been established between tar application or smoke inhaled and tumor
yield (reference 2 and 8). These data support epidemiological findings
relating the amount of cigarette smoke inhaled and the likelihood of cancer
of the oral cavity, cancer of the lung, cardiovascular disease, and respiratory
disease in humans (references 14, 41 and 45). Thus, as long as warnings
of health hazards from smoking are disregarded and as long as cigarettes
are consumed, efforts towards a reduction of tar and smoke constituents
which may contribute to these health hazards should be continued."
Q. I think for the record you said "smoke constituents,"
but -- but I think does it not say "smoke components?"
*3 A. At the end of the paragraph it says "efforts
toward a reduction of tar and smoke components which may contribute."
Q. Now what's the significance to you of that last
sentence you just read?
A. I think the significance is that as long as people
continue to smoke, this modification of products to reduce the risk of
smoking is a very useful thing and important thing to do.
Q. And that's the Surgeon General in 1979?
A. Yes.
Q. Let's go to 1983 now. If you turn to tab 36,
that's G -- Exhibit GI000009, five zeroes with a nine, and let me ask you
if you recognize that as one of the reports, scientific reports of the
Independent Scientific Committee on Smoking and Health of Great Britain?
A. Yes, it is.
Q. Are the reports of the Independent Committee
-- Scientific Committee on Smoking and Health of Great Britain reports
on which you and others in your profession reasonably rely on matters related
to cigarette design and research?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission under
803(18) of GI000009.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive GI000009.
BY MR. WEBER:
Q. And I think that if you'd turn to page eleven,
recommendation -- well the paragraph 36, the first paragraph under "CONCLUSIONS."
Could you read that.
A. Okay. Paragraph 36, "Cigarette manufacture has
been undergoing a period of rapid change. We are encouraged by the decrease
in tar yields over the last few years and recommend a continued reduction."
Q. If I could stop you there, doctor, what does
that mean to you?
A. Well it -- they've seen a rapid reduction, an
important reduction in tar yields. It means to me that they believe that
that is a step in the right direction, and encouraging the industry to
continue that.
Q. Would you read the next sentence, please.
A. "We have recommended that nicotine levels should,
in general, continue to fall but that there should be available to the
public some brands with very low levels of tar and a proportionately higher
nicotine yield though this should not exceed about 1 milligram."
Q. And what's the significance of that sentence
to you, Dr. Townsend?
A. I think this sentence is consistent with a number
of other things I've read in the public -- in the public health domain
suggesting that a cigarette with possible risk reduction or a cigarette
that might be safer is one with reduced levels of tar, but maintaining
some level of nicotine to ensure consumer acceptance of those products.
Q. Now --
And again, just for the record, this is a report
by an independent scientific committee to the government of Britain.
A. That's correct, the Froggatt Committee.
Q. Could you turn now to tab 37, AM005051. And the
last exhibit we just looked at was the third report of the Independent
Committee -- Independent Scientific Committee. This is the fourth report;
correct?
A. That's right.
*4 Q. And this one's dated 1988?
A. That's right.
Q. Published under the authority of the British
government?
A. Yes.
Q. And with --
Again, the reports of the Independent Scientific
Committee on Smoking and Health are reports on which you and your field
reasonably rely on matters relating to cigarette design and chemistry and
matters of the like?
A. Yes.
MR. WEBER: Your Honor, I'd move the admission under
803(18) of AM005051.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive AM005051.
BY MR. WEBER:
Q. And if you could turn in the summary up front,
I believe it's on page two, Dr. Townsend, and read recommendation number
eight in "Product Modification."
A. Yeah. This is under a section called "Product
Modification."
Recommendation number eight says, "Government and
the tobacco industry should consider what further action could be taken
to persuade more smokers to favor low tar brands."