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 31, 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 residing.
 

(Jury enters the courtroom.)

THE CLERK: Please be seated.

THE COURT: Good morning.

(Collective "Good morning.")

THE COURT: Counsel.

MR. WEBER: Thank you, Your Honor.

Good morning, ladies and gentlemen.

(Collective "Good morning.")

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.

Q. Dr. Townsend, would you reach up to your right and there's a collection of papers right at the top of that stack, and is that what's marked as Exhibit GJ000277A?

A. I'm sorry, I don't see a designation on it, sir.

Q. Okay. Can you identify that document?

A. Yes, I can. It's a status report from June 1976, status report of Smoking and Health Program of the National Cancer Institute.

Q. All right.

MR. WEBER: Your Honor, this was -- if you'll remember yesterday, at tab 49 there was an issue with respect to Exhibit AZ000993, and the court directed us to make some further inquiry on that. We have found that very document published by the National Cancer Society in the 1976 status report and provided a copy of the status report to the plaintiffs, marked it as GJ000277A. There should be a copy up there for Your Honor.

THE COURT: All right.

MR. WEBER: And I -- and I believe there's no objection to the admission of GJ000277A under 803(8) as a publication of the National Cancer Institute.

MR. CIRESI: That's correct, Your Honor.

THE COURT: All right. That will be received.

BY MR. WEBER:

Q. Now Dr. Townsend, if you could turn to page 157 of GJ000277A, which is the 1976 status report of the National Cancer Institute Smoking and Health Program, do you see there a set of minutes from a meeting dated May 5, 1976?

A. That's correct, at page -- the cover page of the minutes of meeting, May the 5th, 1976.

Q. And this is the same document we spoke about yesterday AZ000993?

A. Yes, it is.

Q. Now --

And these are minutes prepared by the National Cancer Institute for the meeting; correct?

A. That's correct.

Q. Now who were the attendees at this meeting?

*2 A. There's a list on the front page. Dr. Gio Gori, who of course headed that program; Howard Halter; I. W. Hughes from Brown & Williamson; Charlie Keith from Celanese, who was a supplier; Dr. Charlie Mattina; Bill Metscher; Tom Osdene from Philip Morris; Tom B. Owen from NCI, and I believe he was also secretary to this program; Murray Senkus from R. J. Reynolds; Alex Spears from Lorillard; and T. C. Tso from USDA.

Q. So there are two National Cancer Institute employees at this meeting and one Department of Agriculture?

A. That's correct.

Q. Could you turn to page two.

A. You mean page 158?

Q. I'm sorry, yes. The next page in order, 158, as -- as in the National Cancer Institute publication. And could you read the section labeled "PURPOSE OF MEETING."

A. Yes. "PURPOSE OF MEETING.

"Dr. Gori asked the consultants to consider the feasibility of producing a cigarette yielding a tar-to-nicotine ratio below 10. Since nicotine may play a significant role as a determinant of smoking behavior and also contributes to the organoleptic qualities of the smoke, it is necessary to consider this additional approach to less hazardous cigarettes, i.e., a low tar/nicotine ratio, low tar cigarette."

Q. And is this consistent with some of the publications that you spoke about yesterday?

A. It's entirely consistent with those publications.

Q. And these are minutes prepared by the National Cancer Institute?

A. That's correct.

Q. Now, let's go down to "Feasibility and Desirability," if we could, and could you read that to the ladies and gentlemen of the jury.

A. "It was the consensus of the group that an effort to produce and test cigarettes with tar-to-nicotine ratios of less than 10 is valuable and should be conducted. In view of the manipulatory potential of reconstituted sheet technology, such cigarettes are feasible. It was noted that there is currently at least one low tar/low nicotine cigarette on the market which has a tar-to- nicotine ratio of 10.

"The source of the nicotine was questioned. Dr. Tso stated that the source could be -- could be a high-nicotine tobacco variety."

Q. Let me stop you there. Who is Dr. Tso affiliated with who's discussing the high-nicotine tobacco?

A. T. C. Tso is with the USDA, U.S. Department of Agriculture.

Q. Okay. Go ahead.

A. "The maximum nicotine content is 7 percent and although such tobacco also produces a great deal of tar, it can serve as a nicotine source. The tar is not a problem if the tobacco is stripped and suitable quantities of the removed nicotine are added back to a modified tobacco sheet. Extenders could also be used to reduce tar levels."

Q. All right. Could you go over to the top of the next page then, which continues to report on Dr. Tso from the Department of Agriculture and -- and his discussion.

A. Right. The top of 159 Dr. Tso indicated -- or "As Dr. Tso indicated, a high nicotine, high tar tobacco could possibly deliver a tar-to-nicotine ratio of less than 10. The discussion then focused on the question of the tar quantity as well as the magnitude of the ratio. This then led to a discussion of modified tobacco sheet enriched in nicotine salts obtained from tobacco inputed to sheet making processes."

*3 Q. Now as a cigarette designer, what does modified tobacco sheet enriched in nicotine salts, what would that be referring to?

A. Well I think that's -- that's referring to reconstituted tobacco that has nicotine salts or nicotine materials added to it.

Q. And this is Dr. Tso talking at the meeting.

A. Yes.

Q. Now could you go to the next paragraph labeled "Nicotine Nature and Delivery."

A. Sure. "This was the pivotal issue discussed at the meeting. Nicotine has the greatest pharmacologic effect" -- or "activity when it is in the free base form. The base form is also the 'distillable' form which readily transfers to cigarette smoke. It was suggested that the form of the nicotine could be critical in a) efficiency of transfer to smoke as base nicotine with minimal transformation to 'tar' and b) physiological impact which depends on the base/salt nicotine ratio in the smoke aerosol, paren, the base/diprotic salt ratio has a logarithmic dependence on smoke pH and the two pKb's for nicotine, end paren."

Q. And the next paragraph.

A. "The question of which salt to add to the modified sheet was also raised. Nicotine citrate and tartrate were mentioned (other less acceptable salts include the acetate, oxalate, and some other nicotine salts of carboxylic acids)."

Q. What was the National Cancer Institute discussing or recommending here for research?

A. They were certainly suggesting that the form of the nicotine was an area of research toward this overall objective.

Q. And the date of this, again, Dr. Townsend?

A. 1976.

Q. Now let me go back to ask one question on that first page of the minutes where it was "PURPOSE OF MEETING." Do you see that?

A. Yes.

Q. And it talks about how nicotine may play a role in smoking behavior and also contribute to the organoleptic qualities. Could you describe what that means.

A. Yes. Nicotine does exhibit a mild pharmacology, and it may influence to a degree smoker compensation. I believe that other term -- earlier -- other factors may also influence how a person smokes, including the tar level, the taste of the tar, and as I indicated yesterday, even the pressure drop of the cigarette can alter the way a person puff -- person puffs on the cigarette. It's kind of hard to say together. I think the role of nicotine in -- in how a person smokes is important. I also think the organoleptic qualities, as it's said here, is also important, because nicotine does exert a sensory effect in the oral cavity and upper respiratory tract; it's an irritation, a sensory irritation a lot like carbonation in a -- in a soft drink.

Q. Now we talked yesterday about recommendations of this type for research in the 1981 Surgeon General's report, the Banbury report, and other articles, and I believe at the end of the day I asked you if R. J. Reynolds had done research along the lines contained in these suggestions; correct?

*4 A. That's correct.

Q. And was the Reynolds research that was done along these lines consistent with the concepts and suggestions that we've been describing in the literature yesterday?

A. Yes. The research that R. J. Reynolds has conducted along these lines is entirely consistent with this approach and also the discussions from yesterday. It involved actually several different projects over a number of years to try to -- to change or break the tar-to-nicotine ratio. There's also been research looking, of course, at pH and the effects of that, and several of the projects that were conducted at Reynolds include projects like -- well by code name GT, XGT, XB, and even a project named Russell.

Q. Was there also a project called REST, R-E-S-T?

A. There was. There was a project in the early '90s -- or it may have begun in the late '80s and -- and into the early '90s -- called REST, which stands for ReEquilibration of Solubles in Tobacco.

Q. And what was --

Why was the REST project undertaken? What was the purpose of its initiation?

A. The original objective was to process tobaccos to reduce the nicotine level, and about that time, that timeframe, one of our competitors was exploring very low nicotine cigarettes, so we saw this as a possible tool for us to compete with -- with another cigarette company by reducing the levels of nicotine.

Q. As REST continued, were there other potential applications for it?

A. Well there certainly were. And -- and let me just briefly tell you what REST was. The idea was to separate solubles and the solids or the -- the polymers in tobacco and then somehow pros -- process either the extract to reduce nicotine. Another objective was to increase nicotine consistent with the theories that we've been talking about. Another approach would be to process the pulp or the -- the fibers that are left over after extraction to somehow reduce the protein levels to hopefully reduce constituents in smoke that were thought to be a problem potentially. Another is to process the extract in certain ways, again to reduce constituents in smoke, to address smoking-and- health issues. So I think there were a number of objectives as the development of REST continued. The original one, however, was to reduce nicotine.

Q. Did any of this research along these lines we've been talking about result in patents for R. J. Reynolds?

A. There are a number of Reynolds patents in the REST process and also in the XB, XGT, and the medium nicotine/low tar projects.

Q. Now were any of these concepts that have been patented, the type of research you've been talking about right now, were -- were any of those research efforts, did they result in product that was commercialized; that is, product that was made as a commercial cigarette and sold on the market?

A. We've not been able to commercialize products resulting from these projects because they haven't achieved a good consumer acceptability at this point. The medium tar/low -- the medium nicotine/low tar products, we've made some progress in those projects, but they're still not consumer acceptable. The REST project actually was discontinued then; there was no commercial application of it as well.

*5 Q. Is research in these areas still continuing?

A. Yes, very definitely.

Q. Now yesterday we talked about the tobacco expansion process. You remember that?

A. Yes.

Q. And you mentioned how that process changed around 1988.

A. Yes.

Q. Could you explain how the process was changed.

A. As I indicated yesterday, there were environmental concerns about freon, which was the expansion agent we used for our G -- what we called the G13 process, the expansion process, so with these environmental concerns, we began in the -- in the late '80s to explore alternatives. R. J. Reynolds did make a decision in the late '80s, right around 1988 or thereabouts, to -- to discontinue the use of freon expansion. We explored a variety of options, including some processes that we were trying to develop in-house as replacements, we evaluated other processes that some of our competitors used, and then finally did make a decision, as I said, in the late '80s, to discontinue that process, and we made the decision to license a process from one of our competitors, a process that uses carbon dioxide as the expansion agent. That was implemented in the early '90s, became commercial in the early ' 90s.

Q. Now continuing on this issue of tobacco processing, you mentioned, I believe yesterday, that ammonia was used in processing reconstituted tobacco sheet.

A. Yes.

Q. And then reconstituted tobacco sheet is put in as part of a blend in the cigarette?

A. That's correct.

Q. When did Reynolds begin to examine the potential effect of ammonia on smoking tobacco?

A. Some of the earliest experiments at Reynolds were in the '50s. Scientists were looking at the effects of ammonia on smoke chemistry and on taste, on changes to taste characteristics of the tobacco.

Q. Could you turn to tab 59, AT000595. Do you have that one, doctor?

A. Tab 59?

Q. Yes.

A. Yes.

Q. And is that AT000595, an October 6, 1954 memorandum by Harry Snyder?

A. That's correct, it is.

Q. And was this created and maintained in the regular course of Reynolds' business?

A. Yes, this is a Reynolds document.

MR. WEBER: Your Honor, I move the admission under 803(16) and 803(6).

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive AT000595.

BY MR. WEBER:

Q. Now can you briefly describe the substance of this document, which is entitled "USEFUL BY-PRODUCTS OF STEM AMMONIATION" and dated October 6, 1954.

A. The work that's summarized here is the work to improve smoking quality of tobacco stems through the use of adding ammonia, and in particular using gaseous ammonia, or that's the most extensive piece of the work. Tobacco stems generally have, in themselves, poor smoking qualities. The intent here was to see if adding ammonia could improve the smoking qualities because there was some research even at that time that suggested that ammonia and sugars could react and form flavorful -- flavorful compounds.

*6 Q. Now when did --

I think you said yesterday that the first use of ammonia process and reconstituted sheet at Reynolds was in the Camel Filter in 1974?

A. The first commercial use was in Camel Filter in 1974.

Q. Was there anything going on in the marketplace in that era that caused Reynolds to evaluate whether it ought change its cigarette processing or its blend?

A. Well there was something going on in the marketplace. One of our competitors had -- had a product, the name of it was -- is Marlboro. Marlboro was doing extremely well in the market compared to our products, and Marlboro we thought -- our researchers thought at the time had added ammonia to it.

Q. Does ammonia processing affect the smoking quality of reconstituted tobacco sheet?

A. Certainly does. What we know now is that -- is that ammonia reacts -- does react with sugars and -- and forms a number of different flavor -- flavorful compounds, particularly a class of compounds called pyrazines, which are heterocyclic rings with two nitrogens at opposite ends on them. Pyrazines are formed very efficiently in -- in baking and cooking of foods, too, where ammonia is heated in the presence of certain endogenous sugars.

So it does affect the smoking qualities, it does affect the taste characteristics.

Q. I want to discuss some examples of Reynolds analysis of ammonia on smoking quality. Can you turn to tab 61, which is Exhibit AZ000852.

A. Sure.

Q. Do you have that?

A. Yes, I do.

Q. Is that a document that was created and maintained by Reynolds in the ordinary course of business?

A. This is a Reynolds document.

Q. And is it dated from 1976?

A. The report is dated January 29th, 1976.

MR. WEBER: Your Honor, I'd move the admission of AZ000852 under 803(6) and 803(16).

MR. CIRESI: No objection as a business record, Your Honor.

THE COURT: Court will receive AZ000852.

BY MR. WEBER:

Q. And the title of this document is what, Dr. Townsend?

A. The title is "EFFECT OF TREATMENT OF TOBACCO WITH AMMONIA OR VARIOUS AMMONIUM SALTS ON THE LEVELS OF PYRIDINES AND PYRAZINES IN SMOKE."

Q. Could you turn to the abstract of the article on page three. And is this intended to be a summary of the research?

A. This is intended to be a summary or an abstract of what's in this document.

Q. Now without reading us through all these chemical names, which I know I couldn't pronounce, could you explain what this abstract -- the point -- the scientific and chemical point this abstract is -- is discussing.

A. This abstract summarizes for the reader that the treatment of tobacco products with ammonia or ammonium salts produces -- well, to use these words -- one or more changes in tobacco composition, and then goes on to summarize a number of -- of constituents in smoke that were studied. And the effects of ammonia treatments on tobacco production -- of tobacco products on the levels of a whole list of constituents were evaluated, and many of these were in fact increased as a result of ammoniation. These compounds were largely pyrazines, as I described before, an aromatic ring with two nitrogens at opposite ends, also pyridines and a number of other constituents, many of which were thought to be highly flavorful.

*7 Q. Could you turn to page 15, and there's a discussion of a competitive brand analysis.

A. Yes.

Q. And in the -- at the paragraph there that begins "Examination...," do you see that?

A. Yes.

Q. Can you tell us what was observed in this research study with respect to the ammoniation issue and some of these flavorful compounds.

A. Okay. The discussion in this section, of course, deals with competitive brands. The first point is that "Unfiltered Marlboro smoke shows elevated levels of pyrazines and pyridines compared to unfiltered WINSTON smoke." So Marlboro compared to Winston did have higher levels of these flavorful compounds.

Second, "Filtered Marlboro smoke shows elevated levels of pyrazines and pyradines when compared with filtered WINSTON smoke, but the pyradine level elevation is not as pronounced as that of the pyrazines." Okay. So even with a filter, Marlboro was showing higher levels of these compounds.

Third, "Unfiltered Kools and SALEMS show almost identical profiles for pyrazines and pyradines in their smokes." So again, it was a comparison of two menthol brands, two very popular menthol brands on the market; those two were very similar.

And then finally "Filtered Kool smoke shows substantially lower levels of both pyrazines and pyradines than filtered SALEM smoke." So for filtered products, Kool and Salem were slightly different and Kool had less of those compounds.

So our scientists were trying to understand differences of the products in the marketplace and the levels of these pyrazines and pyradines as constituents.

Q. Now if you could go to the next page where they did a smoke analysis of competitive brands.

A. That's page 16?

Q. Right.

A. Yes.

Q. And I'd like to focus you on the line there toward the middle of the smoke analysis that refers to pH.

A. Yes.

Q. What's the --

There's an average minimum and an average maximum reading. Could you explain that.

A. Over the years at Reynolds we've had at least three different methods for measuring pH. One of the methods actually determined for a given sample a minimum pH and then a maximum pH because the pH changed during the course of the measurement. So these numbers are -- are representing for that measurement the minimum value that's recorded and the maximum value that's recorded.

Q. And focusing on the maximum for a moment and --

And these are measurements of commercial cigarettes?

A. These are measurements for four commercial cigarettes that we just referred to on the previous page.

Q. And is the measurement of pH for any of those commercial cigarettes over 6.5?

A. No. No, they're not.

Q. Now could you turn to tab 62, which is AT000714.

A. Okay.

Q. And is that a 1980 document prepared by Casey and Perfetti entitled "METHOD TO IMPROVE QUALITY OF TOBACCO VIA SUGAR- AMMONIA REACTIONS?"

A. It is.

Q. And was that created and maintained in the regular course of Reynolds' business?

*8 A. This is an R. J. Reynolds document.

MR. WEBER: Your Honor, I'd move this into evidence under 803(6).

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive AT000714.

BY MR. WEBER:

Q. Now Dr. Townsend, could you explain this research here where they're talking about sugar/ammonia reactions.

A. It's similar to what we were talking about on the last -- in the last document, that sugar and ammonia, even added ammonia, can react to form flavorful compounds. These authors were looking at -- at briefly some smoke chemistry, but then took those products and did some smoker evaluations on an internal taste panel test. As a result of these taste panel works they found that, compared to a control, the ammoniated cigarettes tended to get better -- better scores on smoothness, so that the ammoniated products were judged by smokers as smoother, less strong, and better flavor.

Q. Could you go to the concluding paragraph of that memorandum and read that to the ladies and gentlemen.

A. Yes. On page three the authors say, "It is the authors belief that the above treated flue-cured tobacco produced a smoother, more flavorful cigarette because of the low temperature, sugar-ammonia reactions which were allowed to take place on the surface of the tobacco leaf before incorporation of the flue- cured tobacco into the blend."

Q. Now Dr. Townsend, could you turn to tab 63, which is AT000700. Do you have that?

A. Yes.

Q. Is that a quarterly report from 1982 from C. R. Green to Mary Stowe?

A. It is a quarterly report from Dr. Charlie Green to Dr. Stowe.

Q. Were quarterly --

A. 1982.

Q. I'm sorry.

Were quarterly reports prepared, created and maintained in the regular course of business during that period?

A. Yes, they were.

MR. WEBER: Your Honor, I'd move the admission of AT000700 under 803(6).

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive AT000700.

BY MR. WEBER:

Q. Now what's the subject of this report?

A. This quarterly report speaks to tobacco ammoniation.

Q. And if you could go to the second paragraph on that page, what does --

Read the first few sentences to -- regarding Dr. Green's position as to the effect of ammoniation of tobacco on smoke.

A. Okay. "There is general agreement that ammoniation of tobacco has two general effects on its smoking properties. Compared to an untreated control, the smoke of an ammoniated product is milder and less irritating. A key step to observation of less irritation from ammoniated products is the removal of excess unreacted ammonia from the treated tobaccos. This has been accomplished by either a waiting period between ammoniation and use or by steaming the ammoniated tobaccos. Concurrent with the reduction in irritation, ammoniated tobaccos produce a smoke with altered flavor and aroma properties. The flavor becomes more chocolate-like and this is associated with the presence of higher levels of smoke pyrazines. Because of these flavor changes, ammoniated tobaccos are generally regarded as being more burley- like. This factor must be considered in the use of treated tobaccos as part of cigarette blends. The attributes of ammoniated tobaccos, less irritation and more chocolate flavor, have also been used to describe major product differences between our products and those of our major competitor. We do not know if this gives them a competitive advantage in the marketplace."

*9 Q. And do you understand -- have an understanding as to who that major competitor is that's being referred to?

A. The major competitor that's being referred to there is clearly Marlboro, produced by Philip Morris.

Q. Could you go to the next page on that memorandum, the last paragraph. I want to ask you a question about that. It says, "Interrelated with the study of tobacco ammoniation is tobacco denicotinization. This process can achieve some of the same smoking quality improvements as ammoniation through a reduction in smoke nicotine. In fact some" --

I better read it from here. It's better.

"In fact some some processes which result in improved smoking quality are both a tobacco ammoniation and denicotinization. It is not clear whether the smoking quality improvement is due to either or both treatments."

And let me ask you this: Did Reynolds have in place an ammonia process that was used for the denicotinization of tobacco?

A. We did have a commercial process called KDN or burley denic which used ammonia and steam to reduce the nicotine levels in burley tobacco.

Q. And when Reynolds was using that process, how did the use by weight of ammonia for the denicotinization process compare to the use of ammonia in the processing of reconstituted sheet?

A. I think it was much, much higher than levels used in reconstituted tobacco.

MR. CIRESI: I'm going to move to strike, there's no foundation. He's thinking. We have no documents for this, Your Honor.

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

BY MR. WEBER:

Q. Do you have --

Based on your 20 years at R. J. Reynolds, do you have knowledge as to how much ammonia was used in the denicotinization process by weight as opposed to how much was used in the RTS process?

A. Certainly as knowledgeable in -- in the area of cigarette design and -- and tobacco processing, I have a general knowledge of that. I can't sit here today and give you a concrete, hard number. But in the de -- in the burley denic process, there was far more ammonia added to remove nicotine along with the steam, far more ammonia added than we -- than we add in reconstituted tobacco.

MR. CIRESI: Once again, Your Honor, we'd move to strike. There's no foundation for that testimony. We need to know what the formulas are and the specifications.

THE COURT: Okay. Can you lay foundation for the statement, give us something?

MR. WEBER: I -- you know, based on his experience and his knowledge from working there, which -- which I assume -- I had felt was enough foundation. If it's not, I'll move on, Your Honor.

MR. CIRESI: Move to strike the answer.

THE COURT: All right. I'll let the answer stand.

BY MR. WEBER:

Q. Can you now turn to 64, tab 64, which is Exhibit AT000705.

A. Sure.

Q. And can you identify that as a memorandum dated February 13, 1987 to -- or from Dr. Appleton to Dr. Hayes?

A. That's correct. It's 1987 memorandum from Dr. Appleton to Wally Hayes.

*10 Q. And is this a document that was created and maintained in the regular course of Reynolds' business?

A. This is a Reynolds document.

MR. WEBER: All right. Now I'd move the admission of AT000705 under 803(6), Your Honor.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive AT000705.

BY MR. WEBER:

Q. Now it starts out with an unusual title. What does the title refer to?

A. The subject of this memorandum is "Information Summary on Ammoniation."

Q. Up in the upper left-hand corner. And then it goes on to talk about effect of ammoniation on peanuts?

A. Yes. In the summary it says, "There is no indication in the literature that ammoniation of peanuts would pose a human health hazard."

Q. And the background paragraph reads, "Ammonia is a normal body constituent which participants in many of the body's metabolic processes. It is also found naturally in many foods."

A. That's correct.

Q. And did Dr. Appleton then go on to discuss both ammoniation of tobacco and ammoniation of foods?

A. Yes, he did.

Q. Let's focus on the ammoniation-of- tobacco part, and let me read a little bit of this and I'll ask you a question.

"Tobacco is ammoniated to remove nicotine and to develop desirable smoking and flavor characteristics. Ammoniation has been reported to increase the quantities of nitrogen-containing organic compounds," paren, and I'll skip the chemicals, "in tobacco smoke condensate."

Then it goes on, the next paragraph, "Pyrazines formed during ammoniation of tobacco (and presumably foods) occur naturally in a variety of roasted foods. Since their flavor intensity is relatively high, their consumption in foods is self limiting. Subchronic feeding studies on 15 pyrazines representative of the class of pyrazines compounds commonly used as flavors indicate that these compounds are not hazardous when consumed in the amounts commonly found in foods."

Did I read that correctly, doctor?

A. You read that accurately.

Q. Now he goes on in the next paragraph to talk about data with respect to ammoniation of tobacco; does he not?

A. Yes.

Q. And he says ammoniation has been found to increase the mutagenic activity of cigarette smoke condensate in Salmonella typhimurium, and does that refer to the Ames test?

A. That is the Ames test he's speaking about.

Q. Then it goes, "Mouse skin painting studies conducted by the NCI indicate that CSC," Cigarette Smoke Condensate, "from tobacco expanded by the Philip Morris ammonium carbonate process has less tumor initiating activity than CSC from reference cigarettes." See that?

A. Yes.

Q. And is that one of the conclusions from the tests that we talked about yesterday?

A. From the NCI TWG studies, yes.

Q. Now this last --

Could you read that last paragraph.

A. Sure. "These studies indicate that ammoniation does not have an adverse impact on the in vivo biological activity of cigarette smoke. Although ammoniation appears to increase the Ames mutagenicity activity of CSC," Cigarette Smoke Condensate, "this seems to have little relevance to tumor initiating activity in the mouse skin painting model. This last conclusion is further supported by the reported observations that CSC from flue cured tobacco has less Ames activity but greater mouse skin tumor initiating activity than CSC from burley tobacco."

*11 Q. Now if ammoniation has this effect of improving smoking quality, why isn't all of the Reynolds product, in every brand, in every style, using ammoniated reconstituted tobacco sheet?

A. Because smokers want different smoke characteristics, and that's why there are a number of different brands in the marketplace, because smokers prefer not only different tar levels and different nicotine levels, but they also prefer different overall taste characteristics. And some of the -- some of the smokers who purchase Reynolds brands actually prefer the smoother, milder, more flavorful, chocolate-like, more burley-like taste from ammoniated tobaccos, and some don't. So we offer products for consumers that are different.

And in fact, more of the brand -- more of the products that we sell are not ammoniated than are.

Q. Now on the same subject here of ammonia in sheet, you said yesterday that reconstituted tobacco sheet might constitute somewhere in the neighborhood of 15 to 25 or maybe 30 percent of a blended cigarette.

A. The typical range is about 15 to 25 percent. On occasion there's been slightly higher inclusions for a few small brands. There's 15 to 30 percent to be conservative.

Q. So that 70 to 85 percent of the blend does not consist of reconstituted sheet.

A. That's correct.

Q. And that 75 to 80 percent has not been subject to ammonia processing.

A. That's correct.

Q. Now in a cigarette that has part of its blend as reconstituted sheet, what percentage by weight of the cigarette consists of ammonia from the RTS process?

MR. CIRESI: Objection as to time, Your Honor.

THE COURT: Can you be a little more specific as to the time?

MR. WEBER: Can -- let me approach it this way.

BY MR. WEBER:

Q. Let's take --

Can you talk in the last 10 years, let's say in the '80s.

A. Yes.

Q. And if that's not a number or a time period you're comfortable with, you can do '90 to '94. Do you know what the percentage by weight of ammonia in a cigarette that incorporates as part of its blend reconstituted tobacco sheet that has been processed with ammonia?

MR. CIRESI: Once again, Your Honor, there's no foundation. It's vague and overbroad as to time. We don't know which cigarette, what the formula or specifications for that cigarette are, what type of tobacco is being used, at what year it's being used. Those all change.

THE COURT: You can answer the question.

A. Let me -- let me make clear a particular timeframe, because I have looked at actual data. And -- and in the early '90s, for example, up to '94, certainly in the early '90s, the ammoniated products --

THE COURT: Counsel, excuse me. I hate to interrupt you, but I believe the question was directed to the '80s; isn't that right?

MR. WEBER: Right. And I -- I then also said about '90 to '94. Let me rephrase it then, Your Honor.

THE COURT: Maybe let's take them one at a time anyway. I think it's very confusing.

*12 MR. WEBER: All right. Thank you.

THE COURT: Are we talking about the '80s or the '90s anyway.

MR. WEBER: Let me -- thank you, Your Honor, for helping me clarify the record on this.

BY MR. WEBER:

Q. Let me talk about the early '90s, before -- up to the middle of '94. Do you know what percentage by weight in a blended cigarette consisted of ammonia that came from ammonia processing?

A. Yes. In general the levels for products sold -- manufactured and sold by R. J. Reynolds was on the order of about .15, maybe as high as .2 percent by weight ammonia.

Q. So that's in --

.2 percent would be one-fifth of one percent?

A. That's correct.

Q. Now does this amount of ammonia from the RTS process, some of which RTS tobacco is put into a blended cigarette, does this increase the pH of smoke in Reynolds' commercial products?

MR. CIRESI: Objection, Your Honor, this implicates the court's orders, I believe.

MR. WEBER: Doesn't deal with --

It simply deals with matters he knows from working there, Your Honor. It doesn't deal with those exhibits they've objected to. I've marked in here a point soon where we will need to discuss that issue.

MR. CIRESI: We have no foundation for this.

THE COURT: All right. I'll allow him to answer.

A. At the levels of ammonia we use in our commercial products, we do not see an increase in pH in the smoke.

Q. Does the use of ammonia affect the taste and sensory characteristics though?

A. The use of ammonia definitely influences the taste and sensory characteristics of the smoke.

Q. Now I need another exhibit, and I'll have to --

Bear with me for just a moment. Oh, here they are. Excuse me, ladies and gentlemen.

Could you turn to tab 95 -- excuse me, to the 1979 Surgeon General's report. Let's start with that, page 14-108. And I think that chapter is separately bound on the right, Dr. Townsend, in that -- perhaps in the manila folder. And that is, I believe, PX3836.

MR. WEBER: Excuse me, Mr. Ciresi.

(Easel moved by Mr. Weber.)

A. I'm sorry, what page are we on?

Q. 14-108. And I'd like you to look at the left-hand column there, and five, six lines up from the bottom, do you see a sentence that begins "Since...?"

A. Sure.

Q. Now could you tell me --

Could you read that sentence for the ladies and gentlemen of the jury.

A. Sure. "Since cigarettes in the United States and in most foreign countries are made of flue-cured tobacco, are blends with flue-cured tobacco as a major ingredient or, in a few cases, are blends with Turkish tobacco, the pH of the resulting mainstream smoke is below 6.5 and thus essentially contains only protonated nicotine. Nicotine salts, however, are a part of the particulate matter and are, therefore, not amenable to significant selective filtration."

Q. Now --

So in 1979, the Surgeon General said that cigarettes in the United States have a pH of mainstream smoke below 6.5; correct?

*13 A. That's what it says here.

Q. And then it goes on to say "and thus contains essentially only protonated nicotine." What does that mean?

A. It means virtually all of the nicotine is in the form of the salt form, which resides -- which necessarily resides in the particles or in the particulate phase.

Q. Is protonated nicotine bound nicotine? Is that another word for it?

A. Protonated nicotine is bound nicotine. They're used interchangeably.

Q. And unprotonated is the free nicotine?

A. Unprotonated is the free nicotine, that's correct.

Q. And is that the same concept of a free base nicotine that the National Cancer Institute was talking about in the 1976 meeting?

A. That's correct.

Q. Okay. But here it said below 6.5 it's essentially unprotonated -- or essentially protonated, which is bound; correct?

A. That's correct. That's what the Surgeon General said.

Q. Now could you please turn to tab 95, which is Exhibit GK100344. And is that an article from Tobacco Science in 1972?

A. Yes, it is.

Q. And an article by Morie entitled "FRACTION OF PROTONATED AND UNPROTONATED NICOTINE IN TOBACCO SMOKE AT VARIOUS pH VALUES?"

A. That's correct.

Q. And is that an article that you rely upon for data and analysis regarding smoke chemistry?

A. Yes.

MR. WEBER: Your Honor, I'd move this GK100344 under 803(18).

MR. CIRESI: Is this the --

Do you have the full document?

MR. WEBER: Yeah, that's just -- it's just the one page.

MR. CIRESI: Okay. No objection, Your Honor.

THE COURT: The court will receive GK100344.

BY MR. WEBER:

Q. Now let me start out on this on the lower right-hand column at the end of the article.

Well first of all let me show -- that's the title, and let's go to the lower right-hand. There we are. And does the author talk about, first of all, unprotonated nicotine in cigar smoke?

A. Yes.

Q. And then does he go on to talk about the pH from smoke of domestic blend cigarettes?

A. Yes.

Q. And what does he --

What does the author of this article in 1972 report the pH of domestic blend cigarettes to be?

A. In this report, Dr. Morie reports domestic blend cigarettes pH ranges from 5.2 to 6.2, with an average of -- I'm sorry, I can't -- it's 5.6 I suppose. It's a bit blurry on there.

Q. Okay. And then what does Dr. Morie go on to say in the next sentence?

A. Gerald goes on to say, "It is obvious from this that the percentage of unprotonated nicotine in the TPM of smoke from these cigarettes is very low (.22 to 2.17 percent)."

Q. And is that observation with respect to the amount of unprotonated nicotine at this pH level consistent with the observations of the '79 Surgeon General's report?

A. Yes, it is.

Q. Now could you go to the first paragraph in the introduction to the article. And let me read that and ask you a question.

"Nicotine in basic tobacco smoke (pH 8.0) is absorbed much more readily through the mucous membranes of the mouth than is nicotine in acidic tobacco smoke (pH 5.6) because of the higher concentration of unprotonated nicotine in basic smoke," and then some citations. It says, "The presence of this unprotonated nicotine (sometimes referred to as unbound nicotine) affects the organoleptic properties of the smoke, particularly those related to taste." Then it goes on to explain the nature of the experiment.

*14 Is that reference to the organoleptic qualities of unprotonated nicotine consistent with the documents you spoke about yesterday and today as well?

A. Yes, it is.

Q. Is that that carbon-dioxide-effect analogy --

A. The analogy.

Q. -- or carbonation analogy you made?

A. That's only an analogy, that's correct.

Q. Now could you turn to tab 97, which is TG000352.

A. Okay.

Q. And let me ask you whether that's an article on the pH of tobacco smoke by Brunnemann and Hoffmann?

A. That's correct.

Q. From 1973?

A. That is 1974, actually.

Q. That's right. I'm sorry. I'm looking at the received date. From --

Published in 1974. And is that a document on which you rely with respect to matters of smoke chemistry and analysis?

A. Yes.

MR. WEBER: Your Honor, I'd move the admission of TG000352 under 803(18).

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive TG000352.

BY MR. WEBER:

Q. I want to start out with you on page 122, if I could, the top paragraph. And one of the co-authors of this is Dr. Dietrich Hoffmann; correct?

A. That's right. This is Dietrich Hoffmann and Klaus Brunnemann, who also works at the American Health Foundation.

Q. And the date of this article is 1974?

A. 1974.

Q. Now if we could look at that second sentence up at the top of the page. Sorry it's not focused better.

A. On page 122.

Q. Yes.

A. Where it starts "Cigarettes...," do you see that? Let me read that.

"Cigarettes made from Bright tobacco or blended tobacco deliver mainstream smoke below a pH of 6.2 and consequently contain only small amounts of unprotonated nicotine." Do you see that?

A. Yes.

Q. And so in 1974 Dr. Hoffmann said below 6.2; correct?

A. That's correct.

Q. Then he goes on to say, "The most commonly smoked tobacco blends in France generate smoke with pH values above 6.6;" correct?

A. That's correct.

Q. And says, "This can be explained by the low content of reducing sugars in the black tobacco blend." Correct?

A. That's right.

Q. Now if we could turn to page -- I think I want to go back to the first page of the article. In the very first paragraph, sentence that begins "However...."

A. Okay.

Q. "However" --

Let me read this, and I want to ask you a question. "However, the pharmacological effect of nicotine is not only a function of the nicotine concentration, but also the pH of the total smoke," and it cites articles in ' 70 and '72. Do you see that?

A. Yes.

Q. Now what does this tell you as to whether or not the scientific community had information in 1970, '72 and '74, as to whether smoke -- pH of the total smoke might have -- account for part of the pharmacological effect of smoking?

A. I think that information was clearly in the scientific literature.

Q. Now would you turn to tab 96, that's CE000282, and can you identify that as an article in 1997 entitled "THE CHANGING CIGARETTE, 1950 to 1995," again by Dr. Hoffmann?

*15 A. That's correct.

Q. Along with a co-author; correct?

A. That co-author is his wife, that's correct.

Q. Is this an article that contains data on smoke chemistry that people in your field reasonably can rely upon?

A. Yes.

MR. WEBER: Your Honor, I'd move the admission under 803(18) of CE000282.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive CE000282.

BY MR. WEBER:

Q. And if you could turn to page 330, doctor. And I'm going to put 1995 on this chart where I've been listing some of these results because, while the article is published in '97, the title says that it was examining cigarettes through '95; correct?

A. Ah, yes.

Q. Now if you could go to page 330, and the second sentence --

Well actually if you start with that last paragraph and read this -- if you could move that down just a little bit, Ms. Kessler. There we go.

A. Start with the last paragraph?

Q. Yeah. "The kind of tobacco used as the filler for cigarettes has a decisive influence in the physicochemical nature of the smoke. The pH of the smoke of cigarettes made only with flue-cured tobaccos or with American blends ranges between 5.7 and 6.2 -- that is, it is slightly acidic -- whereas the smoke pH of cigarettes made with air-cured tobaccos lies in the range of 6.5 to 7.8." Okay? Is that what that says?

A. Yes.

Q. Now --

So again, Dr. Hoffmann says 5.7 to 6.2; is that correct?

A. That's correct.

Q. Now taking into account, Dr. -- well wait just a minute. Could you turn to tab 81 -- well strike that. Let's go to --

Let's go to tab 98 for this one. This is a document that's already in evidence as a report by the state of Massachusetts, it's GK100345. And is this a project report prepared for the Massachusetts Department of Public Health?

A. Yes, it is.

Q. By an independent laboratory?

A. It's prepared by an independent laboratory called Labstat.

Q. All right. And does it --

On page 12 in that report, does this report on the pH of a number of commercial cigarettes that were purchased and tested for the Massachusetts Department of Health?

A. It does.

Q. And are those pH's listed in that second column from the left?

A. That's correct.

Q. Now were any of the pH listings in that second column on the left of cigarettes that are reported on in this report for the Massachusetts Department of Health --

These were cigarettes, just for the record, that were purchased in the open market in January 1997. Do you see that on the screen, doctor?

A. Yes, I do.

Q. Now with respect to the testing of the commercial cigarettes by Labstat in 1997, are the pH of any of those cigarettes over 6.5?

A. No, sir.

Q. What's the highest pH on that list?

A. The highest number that's on this list is 6.35.

Q. Now --

And Marlboro on that list, what's the pH of Marlboro on that list?

A. Marlboro, 6.028.

*16 Q. So let me mark here 1997 testing for Massachusetts, and they were under 6.5, just to reference the 1979 Surgeon General's report; is that correct?

A. That's correct.

Q. Now let me go back for a moment to tab 81, which is PX12340. And can you identify that as a 1975 memorandum by Woods and Sheets at R. J. Reynolds?

A. This is an RJR internal memorandum of the research and development department from John Woods, written by John Woods and Sue Sheets.

Q. Dated January 15, 1975?

A. That's right.

Q. And is this a document that was created and maintained in the regular course of business at Reynolds?

A. Yes.

MR. WEBER: Your Honor, I'd move the admission of PX -- what's marked as P -- PX12340 as a business record.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive Exhibit 12340.

BY MR. WEBER:

Q. Now I'd like you to turn to page five, if you would, and does page five list a number of brands with calculations of pH and calculations of free nicotine?

A. Yes. On page five there's a listing of a number of commercial brands along with market share and smoke pH and a number called free nicotine, which is calculated from the pH measurement.

Q. That's just a calculation that flows from the pH number pursuant to a formula?

A. Yes, it's a calculated number.

Q. Now these report on measurements taken for the year 1974; correct? If you look right above the --

A. That's what it says, yes.

Q. Okay. Was the Camel --

And these are for filter cigarettes; correct? If you look in the paragraph right above the table.

A. They are the 20 best-selling filter brands.

Q. Okay. Now was Camel Filter in 1974, did it have ammoniated reconstituted tobacco sheet as part of its blend?

A. Yes, it did.

Q. And what is the pH in 1974 for Camel with ammoniated reconstituted tobacco sheet as part of the blend?

A. At the bottom of the table is an entry for Camel, smoke pH maximum, 6.19.

Q. All right. Now let's go to Winston at the top. In 1974 was Winston -- did Winston have ammoniated reconstituted tobacco sheet in part of its blend?

A. In 1974, ammoniated reconstituted tobacco was not used in Winston, so there was not ammoniated tobacco in Winston.

Q. And what is the pH reported for Winston?

A. At the very top of the column for Winston, 6.16.

Q. Now what's the comparison of pH between 6.16 and 6.19, what's the significance of that to you as a cigarette designer?

A. As a cigarette designer, I think those are the same number essentially. There's no difference in pH between the non- ammoniated Winston and the ammoniated Camel, no difference in pH.

THE COURT: Counsel, I think we'll take a short recess.

THE CLERK: Court stands in recess.

(Recess taken.)

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

(Jury enters the courtroom.)

THE CLERK: Please be seated.

THE COURT: Counsel.

MR. WEBER: Thank you, Your Honor.

*17 BY MR. WEBER:

Q. Dr. Townsend, were there scientists at RJR over the years who theorized that it was the ammonia in Marlboro that was the key to Marlboro's success and that it was ammonia that increased pH, increased free nicotine?

A. There were certainly a number of scientists at R. J. Reynolds that theorized that increased pH might improve performance in the market, just as there were scientists outside Reynolds, outside the industry, that had theorized the same thing. Yeah, certainly there -- there were. There were several.

Q. Well if ammonia is a base, and if it's added to the reconstituted sheet, why shouldn't it raise the pH of smoke?

A. If one adds a base -- let me step back.

If you remember, pH is a measure of acidity, with zero being -- or one being extremely acidic and 14 being extremely basic, and seven is about in -- in the middle or is neutral. If you take a system like reconstituted tobacco, for example, and you add a base and you add enough of it, you would theoretically, certainly, expect the pH to go up.

What we know is that the levels of addition of ammonia in reconstituted tobacco, the smoke pH doesn't go up. You can measure some small increases in pH in the tobacco, the reconstituted tobacco pH, but again, when it's blended together in a cigarette, the smoke pH hasn't gone up.

Q. Let me go back to tab 81 for a moment, that's Exhibit 12340, and go to page five. There's one issue I want to follow up on.

A. I'm sorry, you said page five?

Q. Page five.

Do you have that?

A. Yes.

Q. And that was that memorandum that dealt with some pH measurements --

A. Yes.

Q. -- of various brands.

A. Right.

Q. Now --

And I want to write down the Camel pH number in 19 -- Camel Filter in 1974, and that was a -- that's a number for a Camel Filter that has ammoniated sheet as part of its blend; correct?

A. That's correct. Camel in 1974 used ammoniated reconstituted tobacco.

Q. And what's that pH number?

A. It's reported 6.19.

Q. All right. Now could you turn to tab 98 at page 12, and that's the testing in 1997.

A. I'm sorry, you said tab 98?

Q. Yes. I think that's --

A. Okay.

MR. CIRESI: Exhibit number, please?

MR. WEBER: I'm sorry, it's GK100345.

BY MR. WEBER:

Q. And is that the test results for the state of Massachusetts from the cigarettes that were tested in 1997?

A. That's correct. This is the Labstat report to the state of Massachusetts, Commonwealth of Massachusetts.

Q. Now --

And what is the pH in the state of Massachusetts testing for Camel Filters in 1997?

A. In 1997, Labstat reported Camel Filters 5.998.

Q. Now does the measurement of Camel Filter pH in 1974 at 6.19 as compared to the state of Massachusetts measurement in 1997 at 5.998, does that show a substantial increase in pH over that 23- year period?

MR. CIRESI: Excuse me, no foundation for that, Your Honor. It just shows two points in time for one cigarette that was tested.

*18 THE COURT: Okay. You can --

MR. CIRESI: It's overbroad.

THE COURT: You can answer that.

A. The difference between the two numbers, these two numbers for Camel Filter between 1974 and 1997, I would regard as not substantially different, and the reason is because the pH measurement itself has considerable variability in it. We know that from the testing we've done in the analytical department at Reynolds, that if one takes one sample of cigarettes and does repeated measures, we see considerable variability in the actual number that we get. And it's -- I can't give you an exact date -- number as we sit here on the variability or the variance of that number, but I can generally tell you it's in the order of plus or minus two to three tenths of a pH unit on repeated measures of the same cigarette.

Part of that is because cigarettes are -- are variable, and we know that the blend composition can affect pH to a small degree, so small changes in the -- in the blend itself will affect pH to a small degree within that variability, and also we know that different tobaccos and different nicotine content of those tobaccos and different acid contents of those tobaccos also adds to the variability.

So the method is variable and the cigarettes are variable, which then leads us to a pretty -- pretty large variability on repeated measurement of the same sample.

MR. WEBER: Your Honor, we're at a point now where I think that issue that counsel has discussed with you needs to be addressed.
 

BY MR. WEBER:

Q. Dr. Townsend, would you turn to tab 65, X3027A. Is Exhibit 3027A an exhibit you prepared from the records of the R. J. Reynolds Tobacco Company regarding the smoke pH of Winston from a period of 1972 through 1978?

A. That's correct.

Q. And is it based on test data created and maintained in the regular course of business?

A. That's correct also.

Q. And is it data of the type that experts in your field would reasonably rely upon?

A. Yes.

MR. WEBER: Your Honor, I'd move the admission for demonstrative purposes of X3027A.

MR. CIRESI: May I personally voir dire on foundation?

THE COURT: All right, counsel.]

BY MR. CIRESI:

Q. Good morning, sir.

A. Good morning.

Q. You and I haven't met. My name is Mike Ciresi, I'm one of the lawyers for the state.

You said you personally prepared this?

A. No. I had personally -- I personally had it prepared. My staff put this together from data that exists in the research and development library.

Q. Okay. Did your staff personally prepare this exhibit?

A. My staff personally gathered the data, understood the data, examined all the data in the records of R. J. Reynolds Tobacco R&D that relate to this specific topic, accumulated the data, prepared a graph, and gave it to me for my review, which I reviewed.

*19 This particular piece of paper my staff, of course, did not prepare. The data, the information and the graph my staff did, and I reviewed it.

Q. When did they prepare that?

A. This particular --

Q. The graph you talked about, sir. The graph that was prepared --

MR. WEBER: Your Honor, Your Honor --

Q. -- that you reviewed --

MR. WEBER: Your Honor, he's interrupting the witness.

Q. Excuse me. But you picked that up and I'm not talking about that. The graph that you reviewed, when was that prepared by your staff?

A. The graph that summarized the data that's included here was prepared in 1996 by one of my staff members and their associates.

Q. When in 1996?

A. Which month?

Q. Yes.

A. I don't recall exactly.

Q. And you reviewed it in 1996?

A. Yes, I did.

Q. And did you then provide it to your counsel in 1996?

A. My staff member was in fact evaluating a host of pH data from the records and prepared this, among other charts. It went into a formal research and development report in our department library, which of course I reviewed and others reviewed. It existed in our R&D library from the period it was created in '96 until -- well it's still there today.

Q. That's not my question.

A. I can't -- I can't tell you an exact --

MR. WEBER: Your Honor, he's interrupting the witness again.

A. I can't tell you an exact date that lawyers first reviewed the un -- these graphs and that formal research development report.

Q. Didn't you send it to the lawyers in 1996?

A. I can't recall specifically. I seriously can't.

Q. You did then send it to the lawyers in 1996 because they requested you to prepare it; isn't that right, sir?

MR. WEBER: Objection, Your Honor, --

A. Absolutely not.

MR. WEBER: -- it's argumentative.

A. The lawyers in my company or outside my company under contract did not request this. I requested my staff to develop this because pH has been such an issue. And we're sitting here, R. J. Reynolds and the scientists at R. J. Reynolds, trying to understand what the flap is about. We go back and examine the data to try to get an understanding of ourselves.

It is absolutely untrue that lawyers requested this to be prepared. I asked my staff to do it --

Q. And you don't know?

A. -- and lawyers did not ask me to do that.

Q. And you don't know if you sent it to the lawyers in 1996. That's your testimony?

A. I don't recall whether I did or not. I really don't.

Q. Who did you give it to in the department in 1996, what individual?

A. Research and development reports are circulated to a number of people. I don't recall the distribution on it. It certainly, in -- in -- in circulating around, went to all the research and development executive management, because all of executive management always get cover pages of the formal reports. It then goes -- it then was circulated to staff who were interested in the area.

*20 Q. Did you look at the underlying data, you yourself?

A. I have looked at the underlying data.

Q. Did you compare it to the graph, all the of the underlying data?

A. I have compared some of the underlying data. There are thousands of data points that were incorporated in that 1996 review. I haven't compared each and every specific point. I trust my people.

Q. Sir, did you --

How much did you look at? Of the full database, what did you look at?

A. I've gone in and looked at selected data for selected brands over certain time periods to, number one, understand what the data are, to ensure myself and guarantee myself that this is an accurate representation of the large volume of pH data, I've looked at the overall conclusions that my staff member drew in accumulating all of this to make sure that those conclusions were consistent with the data.

Q. Where are your notes from that?

A. I don't recall that I have any notes.

Q. You had no notes of what you looked at in comparing it; is that what you're saying?

A. Look, let me tell you what I did.

Q. I --

Just tell me if you have notes. That's all I asked.

A. I've already -- I've already answered that question.

Q. You --

A. I said I don't know that I had any notes. I don't usually when I'm reviewing a report, unless I have specific questions that jump out at me, I generally don't make notes. I'll go through and I'll read and understand what my staff do.

Q. So you don't know one way or the other whether you have notes; is that right?

A. Well let me be a little more explicit. I'm --

To the best of my recollection, I don't think I have any notes taken -- that I wrote when I reviewed this or even subsequent to that. I have not --

Q. Did they bring you --

A. I --

Q. Excuse me. Did they bring you all of the data so that you could select out some to test it?

A. All of the data resided in our research and development department. I have gone back to that entire data set and I personally have gone through and looked at some of it. I haven't -- I can't possibly look at the thousands of data points.

Q. Did you go back and select out from the entire database on your own which ones you decided to look at? Did you?

A. I went back and have made my own selection of some data and looked at it. Is that what your question is?

Q. That's what my question is very simply. Did you yourself personally go and select data from this large database?

A. I have personally selected data from the data that resides in our research and development department to compare versus what we see here.

Q. And sir, how was the data compiled in your research department that you selected data from?

A. These data are from a program that spanned many years that we call the competitive brand database where we're -- where we take commercial products off the market that our competitors have out there, we take our products off the market from retail, we bring those products into the research and development department, and we measure a number of properties of those cigarettes, including tar and nicotine, pressure drop, and for a time period we measured pH. And I'm trying to answer your question, please.

*21 Q. Yeah, well --

A. And -- and we did measure pH. So for a time period from '72 up until the time we finished that competitive brand analysis or stopped it, which was in 1998, we have quite a lot of pH data in that competitive analysis report. That's what the time period is, and that's where the data are from.

Q. Where -- where is the database? How is it kept?

A. The database --

The data are in black notebooks in the research and development library. They've also been incorporated in a computerized database, at least a portion of it has, because it's a massive task.

Q. What did you use when you went back and selected out, did you use the Black Books that you just referred to, or did you use the computer database?

A. Well they're the same. I personally used printouts from the computerized database. The data that's in both are the same.

Q. Did you use the Black Books?

A. I've just answered your question. I used the computer printouts from the database.

Q. Are the computer data printouts in a Black Book? "Yes" or "no."

A. There are some computer printouts in the Black Book. There are some entries in the early years, I believe, that are even handwritten. But most of it are printouts, computer printouts.

Q. Did you use the Black Books, number one?

A. The Black Books is termed the collection of data. I have used those data from the Black Books.

Q. And did you also use data from the database which was -- which were not in the Black Books?

A. No. No. All of the data are in the Black -- the so-called Black Book collection.

Q. So that when you went back, you went to the, quote, Black Book collection; correct?

A. Yes.

Q. And those Black Books were turned over to your counsel; correct?

A. Those Black Books and the data in the competitive brand survey have been given to my counsel.

Q. Okay. I'm asking about the Black Books now. Do you understand that? You said -- you went like quotes, "Black Books."

You understand what that is?

A. I understand what Black Books is, and what it is is it's an indication of that collection of data. Initially we started outputting it in black three- ring binders, and that's where the term came from.

Q. Fine. Now did you take those Black Books and provide them to your lawyers?

A. Our lawyers have been provided the data and all the data from that collection.

Q. And when were the Black Books provided to your lawyers?

MR. WEBER: Your Honor, I object to this. We're getting beyond the scope of what the voir dire is about.

THE COURT: No. I want that answered.

A. I have no idea the first time lawyers inside Reynolds or outside Reynolds have seen those Black Books. We have -- we have lawyers coming through our research and development department all the time, making sure they understand what the documents are for production in litigation, and so I can't possibly tell you the first time those books were looked at.

*22 Q. Who in Reynolds, of your 450 scientists, would be able to come into court and testify under oath when the Black Books were provided to your lawyers? Who?

A. The very first time?

Q. Yes.

A. I don't know. I don't know the answer to that.

Q. Have you ever asked that question?

A. No, I haven't.

Q. So nobody's gone back to ascertain when the Black Books were provided to the lawyers; is that correct?

A. I don't know the answer to that. I'm telling you what I know, and what I know is I don't know when the first time a lawyer was provided that information.

Q. That wasn't my question this time, sir.

A. Okay. Well I'm sorry, I'm sorry, I misunderstood you.

Q. My question was: You don't know if you've gone back and asked when the Black Books were provided.

MR. WEBER: Let me object, it's asked and answered, Your Honor.

A. I don't recall --

THE COURT: You may answer.

THE WITNESS: I'm sorry?

THE COURT: You may answer.

A. I don't recall myself personally going back and asking the very first date those data were ever produced to an attorney. I don't recall personally ever asking that question.

Q. Nobody's asked you to do that over the past two weeks?

A. I don't recall that specifically.

Q. Well do you recall it generally?

A. There's been some general discussions about -- about the data. In particular, after my deposition for this case, which was last fall sometime, the request was made of me by the examiner for the state of Minnesota to produce all the data. I went back immediately after that deposition, asked my staff to accumulate the data, I reviewed it, and then it went off to the lawyers. That's the first recollection I have of any discussion about this.

Q. Now you recall sending something to the lawyers?

A. We produced the underlying information for these graphs as a result of the deposition that I gave back in the fall.

Q. That's --

I'm not asking about the underlying information. And if you don't understand a question I ask you, please tell me, sir. Is that agreeable?

A. Well I understood that you were asking about the underlying data because you keep asking about the Black Books. I'm not trying to be difficult, I'm just trying to understand.

Q. I'm not trying to be difficult either. I'm trying to understand when the Black Books -- that's the term I've been using. Now do you understand that, Black Books?

A. I think we coined the term. I understand it.

Q. Who coined the term?

A. Scientists at Reynolds, because we collected and physically put the data in black three-ring binders. It became known as the Black Book collection.

Q. And when did that become known as the Black Book collection?

A. Oh, I don't know the very first time.

Q. You don't --

A. I've known it -- I've known it for years.

Q. For years. Long before your deposition was taken; is that correct?

A. I've known that -- that competitive brand database information existed in Black Books.

*23 Q. You've known about the existence of the Black Books long before your deposition was taken; correct?

A. I think that's fair. I can't tell you exactly when I first learned about the Black Books. I know that there's competitive brand information in the collection.

Q. But you said you have known about the Black Book for years; correct? Did you say that, sir?

A. I said that I've known that the competitive brands database, also known as the Black Books, existed.

Q. You've known --

A. Yes.

Q. -- that the Black Books have existed for years; correct?

A. I've known that the competitive brands database known as the Black Books has existed for years.

Q. And --

A. I've known that for years, I'm sorry.

Q. So therefore you've known that years before your deposition was taken; correct?

A. Clearly years before my deposition was taken I've known that competitive brands database, also known as the Black Book, existed.

Q. And you knew that the Black Books existed at the time your deposition was taken; correct?

A. At the time my deposition was taken I knew that competitive brands data, such as we've been talking about that are stored in the Black Book collection, existed.

Q. Sir, is the answer to my question yes, you knew the Black Books existed in your research library at the time your deposition was taken?

A. I knew that the competitive brands database existed. It's also known as the Black Books.

Q. Okay. So the answer to my question, then, is yes; correct?

A. What is your question specifically? I'm sorry.

Q. Well I'll repeat it again.

At the time your deposition was taken, you knew that the Black Books existed; correct?

A. At the time of my deposition, I think I didn't call them Black Books, but I certainly knew that the competitive brands database, which was a multi- year effort, existed. There's no question about it.

Q. Well I understand there's no question about that. I'm -- my question is very simple.

MR. WEBER: I object to counsel's commentary again, Your Honor.

THE COURT: Yeah, counsel, no commentary, please. Just ask the question.

BY MR. CIRESI:

Q. At the time your deposition was taken, you knew that the Black Books were in existence; didn't you?

A. Termed specifically as Black Books?

Q. Yes.

A. I'll have to guess and -- and say I -- I probably did. I'm not entirely sure. I knew, however, that the underlying data, the competitive brands database, existed. Research and development people know that because we've participated in this.

Q. Sir, you just testified you knew of the existence of the Black Books for years; didn't you?

A. I think we're into a matter of semantics.

Q. No, we're not, sir.

MR. WEBER: Objection, Your Honor.

THE COURT: Yeah, counsel.

MR. CIRESI: Well Your Honor, I think I'm entitled to an answer to the question.

THE COURT: You're not entitled to argue.

MR. CIRESI: Argue, I understand that, Your Honor.

*24 THE COURT: Please.

BY MR. CIRESI:

Q. Sir, you just testified that you knew for years that the Black Books existed; correct?

A. I think that it's not as simple as that, because I think we are talking about semantics. I clearly knew that the data from the competitive brands database existed. To me that's the substance of it. Now if you want to call it the Black Books and when I began referring to it as the Black Books or when I personally began referring to it as the Black Books, that's to me very confusing and I don't understand the point.

Q. Confusing?

A. Yes.

Q. When you got a memo in 1996, did it refer to the Black Books?

A. It referred to Black Books, as I recall.

Q. So that in 1996 -- that was, what, a year before your deposition, year and a half?

A. Approximately.

Q. So then you knew about the Black Book; correct?

A. I've heard the term Black Books. I'm very familiar with the competitive brands database that's in there.

Q. Sir, I'm asking about the Black Books. That's what we're focusing on here.

A. Okay.

Q. So you knew of the existence of the Black Books at least in 1996; correct?

A. I think that's quite possible.

Q. And you said that --

A. I said --

Q. -- after your deposition you went back and looked for the Black Books; didn't you?

A. After my deposition I went back and asked my staff to pull out all the underlying data that was asked of me by the examiner, and we produced that.

Q. And you got the Black Books; is that right?

A. I beg your pardon?

Q. You received the Black Books; correct?

A. I have looked through the data and the so-called Black Book collection. What do you mean I received the data?

Q. When you went back and asked for the data, did you receive Black Books?

A. When I went back and asked for my staff member to provide all the underlying data, my staff member went back to the Black Book collection, pulled out and xeroxed copies of that and provided to my attorneys. That's all I know.

Q. Now your attorneys had the Black Books, though, long before that; didn't they, sir?

A. I think I've already answered one of your questions I don't know the very first time. Attorneys in our company and attorneys under contract go through all of our documents to make sure they understand what they need to produce for litigation.

Q. And they have to have a sheet that informs the company and you what type of documents that they have obtained; don't they?

MR. WEBER: Let me object to this, Your Honor. I think it's getting beyond voir dire and getting into areas that are not appropriate for this inquiry.

THE COURT: Yeah, I think we're starting to get a little further than we need.

MR. CIRESI: I'm only trying to lay foundation for whether they received the Black Books at that time, Your Honor.

THE COURT: All right. Go ahead.

BY MR. CIRESI:

Q. Sir, there is a procedure set up whereby the company and the lawyers know what they obtain from the company; correct?

*25 A. I don't know what procedures there are in place. From the R&D department perspective, paralegals visit our department, they take -- actually physically take files and return them the next day or the second day after they've been xeroxed and catalogued. I don't know the procedure that they use.

Q. Who would know that procedure?

A. I would refer you to -- to our chief counsel.

Q. Your general counsel; is that right?

A. Yes.

Q. And that general counsel would know when your lawyers first had the Black Books.

A. Well I certainly would think that he might be able to find out, because I certainly don't know.

Q. And you haven't tried to find out in the last two weeks.

A. No.

MR. CIRESI: We renew the objection.

THE COURT: Overruled.

MR. WEBER: Okay?

THE COURT: Proceed, counsel.

MR. WEBER: Thank you, Your Honor.

Your Honor, that objection was to this exhibit and you overruled it. Has the court accepted the --

Before I display this, I just want to make sure the court has accepted the demonstrative -- X3027A for demonstrative purposes.

THE COURT: What tab are you at?

MR. WEBER: Tab 65, Your Honor.

THE COURT: And what number do you have?

MR. WEBER: I have X3027A.

THE COURT: And that's what you're introducing?

MR. WEBER: Yes, that's -- that's not the tab in -- that's --

THE COURT: Okay, all right. The court will receive X3027A for illustrative purposes.

BY MR. WEBER:

Q. Now with respect to X3027A, Dr. Townsend, does that reflect pH measurements for the smoke of Winston over the period of years set forth below?

A. Yes, it does.

Q. And does it have an average calculation there?

A. Calculated for the data in this graph, the average pH is 6.06.

Q. Now does that mean that there were no single data points above 6.06?

A. Of course not. As I've already said in answer to an earlier question, there is some variability due to the method and due to the variability of cigarettes.

Q. And if we look at around 1980 where there's a data point that would be above 6.1, do you see that?

A. I see that.

Q. Does that mean that in 1980 there were no data points above 6.1?

A. No, it doesn't. There -- there could be because -- again, because the method is variable and cigarettes are variable, this average for 1980 can have numbers that are on either side of that particular average.

Q. Now with respect to the data points on here, do they reflect an averaging of all of the measurements of pH that were collected as part of the competitive brand analysis?

A. This represents the average of all the data for that year collected under the competitive brands database.

Q. Now on this chart, is there any average that exceeds 6.3?

A. No, there isn't.

Q. And is there any average that exceeds 6.2?

A. No, there isn't.

Q. Now could you turn to tab 66, and let -- that's X3021, and let me ask you whether that's a similar chart prepared under similar circumstances for Winston Lights?

*26 A. That's correct, it is.

MR. WEBER: Your Honor, I'd move the admission of X3021 for demonstrative purposes.

MR. CIRESI: Same objection.

THE COURT: The court will receive X3021 for illustrative purposes:

BY MR. WEBER:

Q. All right, now, is this a similar chart graphing pH over this period of time of the smoke for Winston Lights?

A. Yes, it is.

Q. And do I notice the graphing here as slightly different from the graphing on the prior chart; in other words, the top line here is 6.3?

A. The scales are different. The maximum -- or the -- the top of the chart is three -- 6.3, whereas the chart we saw just a minute ago, the top line was 6.4.

Q. And --

A. So this is a somewhat expanded scale compared to the first one.

Q. And again, there's some variability here within two or three tenths of a point. What does that reflect to you, Dr. Townsend?

A. Well that's correct, there is variability, and there's variability in the pH data. Again, as I said a few minutes ago, on replicate measures of the same sample of cigarettes we see variability that's in the -- in the neighborhood of .2 to .3, plus or minus, from the average.

Q. Are there other factors that can affect the variability in smoke pH?

A. Well there are a number of factors that can affect variability in smoke pH. Certainly the method itself is somewhat variable. The tobacco itself of course is an agricultural product and the properties of it, including the nicotine content, other bases, other acids, affects pH. Also the blending operation is not a hundred percent uniform, there's small differences in the burley to flue-cured ratio, and because burley has a high nicotine, if -- if that particular cigarette has a slightly higher burley level than the average, then it's probably going to have a slightly higher pH. So there are a number of factors that affect it.

Q. Can I take you back to X3027A, that chart with Winstons for a minute. I want to ask you one question --

A. Yes.

Q. -- if we can pull it up.

When did the Winston brand first have ammoniated reconstituted sheet included as part of its blend?

A. Winston Filter was first -- the first used ammoniated reconstituted tobacco in 1979.

Q. Do you see any material and sustained increase in smoke pH in the series of years after 1979?

A. No.

Q. By the way, why do these charts stop in 1988?

A. That's when we stopped collecting data under the competitive brand database program.

Q. Stopped collecting pH data?

A. Well we stopped collecting all data under that program. That program stopped.

Q. Could you turn to X3023A, tab 67. And is that a similar chart for Salem cigarettes?

A. Yes, it is.

Q. Prepared in the same manner?

A. Yes.

MR. WEBER: Your Honor, I'd move X3023A for demonstrative purposes.

MR. CIRESI: Same position, Your Honor.

THE COURT: That will be received for illustrative purposes.

BY MR. WEBER:

*27 Q. And again here we've got a scale that has 6.4 as the top line, doctor?

A. That's correct.

Q. Was Salem ammoniated during this period, if you recollect?

A. As I recall, it was ammoniated for maybe two years or thereabouts generally. We -- we didn't ammoniate Salem or use ammoniated reconstituted in the Salem but for maybe two years, right around -- it was in the early '80s, if I recall right.

Q. Do you see any sustained or continuous increase in pH over the period of this time for Salem pH?

A. No, I don't see a sustained increase in pH over this time.

Q. And if you'd turn to tab 69, X3001.

A. Okay.

Q. Is this a chart prepared in a similar fashion with respect to the Camel Filter brand?

A. Yes.

MR. WEBER: I'd move X3001 for demonstrative purposes, Your Honor.

MR. CIRESI: Same position, Your Honor.

THE COURT: Court will receive X3001 for illustrative purposes.

BY MR. WEBER:

Q. 3001, do you have it? Okay. Thank you.

Now again, the top line here is 6.4?

A. That's correct.

Q. And we have one data point above that in about 1979 or so?

A. That is correct.

Q. And then within a period of a few years there's a -- oh, roughly six- tenths of a percent drop in pH?

A. That's correct.

Q. Or a .6 drop.

A. At least between -- between the numbers there's that difference.

Q. Point six. And the average over this period of time is?

A. 6.08.

Q. And if you'd turn to tab 70, X3017, is this a similar chart for Camel Light?

A. Yes.

Q. Prepared in similar circumstances?

A. Yes.

MR. WEBER: Your Honor, I'd move X3017 for demonstrative purposes.

MR. CIRESI: Same position, Your Honor.

THE COURT: Court will receive X3017.

BY MR. WEBER:

Q. And here on Camel Lights that top line is 6.6. it's a different scale; correct?

A. Yes, it is.

Q. So the first measurement here was slightly above 6.6?

A. That's correct.

Q. Was that --

Did that measurement maintain over time, or did it decrease?

A. Well it decreased. Camel Lights was introduced into the market in 1978. It decreased --

The yearly averages decreased several tenths of a point very dramatically.

Q. And I have one more of these I want to ask you about, Dr. Townsend. I think it's tab 68, X3013.

A. Okay.

Q. And is that a similar chart for the Salem Light brand?

A. Yes.

MR. WEBER: Your Honor, I'd move for demonstrative purposes X3013.

MR. CIRESI: Same position, Your Honor.

THE COURT: Court will receive X3013 for illustrative purposes.

BY MR. WEBER:

Q. And again the same type of chart, Dr. Townsend?

A. That's correct.

Q. Some variability again?

A. Certainly.

Q. And average, roughly, in the same magnitude as the others?

A. That's correct, 6.09.

Q. Now let me move to a different document here. Could you turn to tab 43, which is GK000555.

A. Okay.

Q. And is that GK000555, is that the "Report of Canada's Expert Committee on Cigarette Modifications?"

*28 A. Yes, that's what it is.

Q. And was this report prepared pursuant to Canadian law as a report to the Canadian government?

A. That's correct.

Q. Does it contain information and data of the type on which you rely as someone who works in the area of cigarette design?

A. Yes, it does.

MR. WEBER: Your Honor, I'd move the admission under 803(8) as a government report, and under 803(18).

MR. CIRESI: It's not a government report, Your Honor, it's a conference proceeding. But I have no objection to the -- to the document.

THE COURT: All right, the court will receive GK000555. It is not a government report though.

BY MR. WEBER:

Q. Could you turn to the page one -- actually it's the third page, and does that list the people who are participants on the Canada's Expert Committee on Cigarette Modification?

Page labeled three in the upper right-hand corner, doctor. It's at the end of the table of contents.

A. Yes.

Q. And can you identify who these people were.

A. Yes. Neal Benowitz is a member of the faculty of the University of California at San Francisco. He's published a lot in the area of nicotine and nicotine pharmacology and physiology.

Q. Is Dr. Benowitz a firm believer in the fact that nicotine is addictive?

A. That would be my representation of his position.

Q. He's written in that area?

A. Certainly, quite -- quite a lot.

Q. Okay. The next participant.

A. John deBethizy is a scientist at R. J. Reynolds Tobacco Company, works in the research and development department. He's also an expert in nicotine pharmacology and pharmacokinetics.

Q. Patrick Dunn.

A. Patrick Dunn is head of research and development for Imperial Tobacco Company in Canada. He's quite experienced in the area of tobacco science, cigarette design, and other areas.

Q. Jack Henningfield?

A. Jack Henningfield is a Ph.D., I don't actually know what his background is, but he was the director of -- of a program at the National Institute of Drug Abuse at the time this conference was conducted.

Q. Next one, is that Dr. Hoffmann we've referenced several times?

A. That's right, that's Dietrich Hoffmann.

Q. From the American Health Foundation?

A. Correct.

Q. Lynn Kozlowski.

A. Lynn Kozlowski is a scientist from Pennsylvania State University. He's, among other things, devoted a fair amount of attention to compensation, so he's -- he's knowledgeable in the area of cigarettes.

Q. Dianna Petitti.

A. Dianna Petitti is an epidemiologist. I think she's with Kaiser Permanente, if I'm not mistaken. Epidemiologist. Has done work in the area of cigarette smoking risks.

Q. Bill Rickert?

A. Bill is head of Labstat. He's -- he's a chemist. And Labstat is -- is a contract research lab in Canada. Dr. Rickert has worked a lot with the Canadian government and the U.S. government and the state of -- state of Massachusetts providing analytical data such as tar, nicotine, specific constituents in smoke, as well as pH measurements, for government bodies, and also provided consultation. Dr. Rickert was also chairman of this panel that was put together by the Canadian government.

*29 Q. Is Dr. Rickert and Labstat, is that the lab that performed the measurements for the Massachusetts Department of Health that we referred to earlier?

A. That's correct. Dr. Rickert and his lab had extensive experience measuring cigarettes, they understand cigarettes and tobacco chemistry and cigarette performance.

Q. And Don Shopland.

A. Don Shopland is director at the National Cancer Institute. He spent his entire professional career in the area of cigarette smoking and the risks of smoking, so he's quite knowledgeable on the epidemiology. I think his background actually is epidemiology.

Q. And the last named one is yourself; correct?

A. That's correct.

Q. Now did the people on this committee, did they agree on everything altogether?

A. No. This was -- this was a scientific discussion and people certainly voiced various opinions. In many cases there was not agreement on a number of topics dealing with cigarette modification and the risks of smoking and constituents in smoke. There were some topics where there was general agreement. So certainly not everything, but there was some.

Q. What the diplomats would call a full, frank discussion?

A. That's fair.

Q. Could you turn to page 54. And is there a discussion reprinted there between Dr. Hoffmann, Dr. Henningfield and Dr. Benowitz regarding smoke pH?

A. Yes.

Q. And I'd like you to read Dr. Benowitz's comment to the ladies and gentlemen of the jury, if you would.

A. Okay. Dr. Benowitz said, "With respect to pH, it's my impression that whatever gets into the lung pretty much gets absorbed. The lung has a huge surface area and it's highly buffered. A more important factor when considering pH, is the proportion of nicotine found in the vapor phase. This would impact on the upper airway nicotinic stimulation and determine how much nicotine could be absorbed from the mouth. That is if you have a high pH, you can absorb a lot in the mouth. Whereas when smoking the usually blond" -- and "blond" means flue-cured tobacco -- "cigarettes, the smoke of which is of an acidic pH, you don't absorb anything from the mouth. The higher the pH the more nicotine impact there would be on the throat. One would expect -- experience more irritation, more of a nicotine type sensation. I don't think that differences in pH would make much of a difference in bioavailability, although it would impact on how strong the cigarette tasted."

Q. Now has Dr. Benowitz been researching in the area of nicotine and smoking for years?

A. For many years. He's done considerable research in the area of nicotine and smoking.

Q. I'd like to compare that comment of Dr. Benowitz now with -- just quickly with Exhibit 1003 -- GK100344, which is already in evidence. And take you back to the --

That's the article by Dr. Morie; correct?

A. Yes.

Can you tell me what the tab is, please?

Q. I'm sorry.

A. My bifocals don't work too well at this distance.

*30 Q. You'll have to bear with me a minute, I'm not sure what tab that is.

Ninety-five, I believe. I'm sorry for that delay.

A. Thank you. Okay.

Q. Now I'd like to go back to that first paragraph of the Morie article. This was from 1972 entitled "FRACTION OF PROTONATED AND UNPROTONATED NICOTINE IN TOBACCO SMOKE AT VARIOUS pH VALUES."

A. That's right.

Q. Now Dr. Morie, I want to start with the -- if you could read the first two sentences of that.

A. Under the "INTRODUCTION."

Q. Yes, sir.

A. "Nicotine in basic tobacco smoke (pH)" and then it's blurred. I believe that looks like a five?

Q. That's 8.0.

A. 8.0.

"Nicotine in basic tobacco smoke (pH 8.0) is absorbed much more readily through the mucous membrane of the mouth than is nicotine in acidic tobacco smoke (pH 5.6) because of the higher concentration of unprotonated nicotine in basic smoke (references 1 and 2). The presence of this unprotonated nicotine (sometimes referred to as 'unbound nicotine') affects the organoleptic properties of the smoke, particularly those related to taste."

Q. Now Dr. Townsend, how does this observation about absorption in the mouth and organoleptic effect and effect on taste compare to what Dr. Benowitz said at the expert -- as part of the expert report by Canada's Expert Committee?

MR. CIRESI: Objection, calls for a characterization, and this witness isn't qualified to comment on these areas, Your Honor.

THE COURT: Sustained.

BY MR. WEBER:

Q. Now are you aware that at one time at Reynolds there were some people who theorized that smoke pH related to market share?

A. I'm aware that several scientists had that theory, yes.

Q. And perhaps people in the marketing department as well?

A. Well I think the marketing department had discussed that with members of the R&D department, and probably held that theory as well also.

Q. Have you examined the issue of whether smoke pH is correlated to market share or market performance of a particular cigarette?

A. My staff and I have, yes.

Q. And do you have a conclusion as to whether smoke pH is related to market performance?

A. Yes, I do.

Q. And what is that?

MR. CIRESI: No foundation.

THE COURT: Sustained.

Q. In investigating the issue of whether smoke pH is related to market performance, did you utilize the data, for example, for the brands you showed the ladies and gentlemen of the jury about smoke pH?

A. I did use -- did use those data.

Q. And what did --

In order to analyze the question whether smoke pH is related to market performance, how did you go about that, Dr. Townsend? How did you and your staff go about that?

A. We used data from the competitive brands database, the same database that we've been discussing for the last few minutes, and also used market-share data from the Maxwell report, which is an outside report of market performance brand style by brand style.

*31 Q. And is that information that's regularly accepted by people who are looking to the issue of how cigarette brands perform?

A. Absolutely. We use it all the time.

Q. Is it public data?

A. It is public data.

Q. Is that the data you referred to, I guess, Friday afternoon when you said that you kept track of market performance of Reynolds brands?

A. That is the same data.

Q. Okay. Did you prepare some charts comparing smoke pH as against market performance from the Maxwell reports?

A. Yes.

Q. Would you turn to tab 75, which I believe is X3028.

THE COURT: Counsel, I think we should better recess for lunch at this time.

THE CLERK: Court stands in recess to reconvene at 2:00 o'clock.

(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 31, 1998

P.M. Session
 

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

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, ladies and gentlemen.

(Collective "Good afternoon.")

BY MR. WEBER:

Q. Good afternoon, Dr. Townsend.

A. Good afternoon.

Q. Dr. Townsend, did there come a time when Philip Morris marketed a cigarette that had -- that was essentially denicotinized?

A. Philip Morris did market a cigarette -- actually a number of brand styles that used what we called denicotinized tobacco. What that is is it reduces the level of nicotine to extremely low levels. It's not completely eliminated, however. I'm not sure that there's any way to completely eliminate nicotine, but very low levels certainly.

Q. And how did that cigarette fare in the marketplace?

A. Well that cigarette -- and I said there were several, a number of brand styles, they were under the brand name of Next, and there were several brand styles, there was a Merit denic as a brand and there were a number of brand styles, and the denicotinized tobacco was also used in Benson & Hedges styles that were nicotine -- quote, nicotine-free. All of those -- I think there were maybe 16 or 18 different brand styles on the market at - - at different points in time over about a two-year period or so, and all of those products failed in the marketplace. They were not consumer acceptable.

Q. Now as a cigarette designer, does that mean to you that smokers smoke only for nicotine?

A. No, it -- it means --

MR. CIRESI: Excuse me. Objection, Your Honor. There's no foundation to draw that conclusion from that.

THE COURT: Okay. You can answer the question.

A. No, as a cigarette designer, that certainly does not mean that people smoke only for nicotine. I think, based on a wealth of information, I've concluded that nicotine is certainly important for the smoking process, and a cigarette that has no nicotine or almost no nicotine is not consumer acceptable. But I think there are other factors, other reasons why people smoke as well, too. There are certainly the taste characteristics as well as the nicotine as well as the ritual. There are a number of reasons.

*2 Q. Now let me move to a different topic now, and I want to ask you some questions about a product called Premier. All right?

A. Yes, sir.

Q. Who is it who --

What company invented, developed and marketed Premier?

A. R. J. Reynolds Tobacco Company.

Q. And when was that development and marketing period?

A. The development of Premier, which was a quite different cigarette design, began in the early '80s, right around 1981 or thereabouts. Reynolds test marketed Premier in three locations beginning in the fall of 1988. So it was quite a long time period that spanned almost all of the '80s.

Q. Did you have any involvement in the research and development work on Premier?

A. I had support involvement. I wasn't responsible for the overall project, but I did have support involvement, particularly for some cigarette design aspects and basic research. My staff and I developed computer models or mathematical models of how the product worked and calculated mass flow and heat transfer in that cigarette and were able to predict changes in cigarette design and their effects on performance. We also conducted extensive studies with radiotracers to thoroughly characterize how that product performed. We also evaluated a number of materials characteristics in support of that project.

So my staff and I actually had a support role in that. It was a peripheral role in that sense, not functional responsibility.

Q. Did Premier follow a typical R&D path at Reynolds?

A. No, it didn't. It was quite different from the other projects at Reynolds that I've -- I've seen and been associated with. Normally at Reynolds in a product development effort, scientists in the laboratory would design cigarettes, and then once that design is in place and -- and well understood, then we'd undergo manufacturing trials to see if we could make it reproducibly, and then once that's done, we would evaluate with consumers to see how they accept or whether they reject it. So most of the projects that I've seen at Reynolds in fact follow a very step-wise process, one step at a time. Premier was quite different in that it was a -- a -- an extremely large budget at Reynolds, and we undertook a number of the design pieces in parallel. So while the cigarette design was proceeding, even though we didn't have a final design, our manufacturing and engineers -- our manufacturing people and engineers were actually trying to design equipment that might accomplish it, knowing generally what the design might be, but not knowing all the details. So there were a number of things moving in parallel.

Q. (Clearing throat) excuse me.

Dr. Townsend, if you could turn to a separately bound Exhibit, AZ001568.

A. Yes, sir.

Q. And can you identify that as a publication by R. J. Reynolds Tobacco Company dated 1988 entitled "NEW CIGARETTE PROTOTYPES THAT HEAT INSTEAD OF BURN TOBACCO?"

A. That's correct. That's what it is.

Q. And is this a publication that R. J. Reynolds made on its technical, chemical and biological work regarding Premier?

*3 A. That's absolutely correct.

Q. And it was prepared and maintained in the regular course of Reynolds' business?

A. That's correct.

Q. And it contains data, the type on which you as a cigarette designer rely regarding cigarette prototypes that heat but do not burn tobacco?

A. Yes.

MR. WEBER: Your Honor, I'd move the admission of AZ001568.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive AZ001568.

BY MR. WEBER:

Q. Now I'm going to hold up -- is --

Is this an actual copy? You have a xerox up there; correct?

A. That is the actual book itself. I have a copy, that's correct.

Q. And this was published by Reynolds and made public?

A. That's correct.

Q. Now I'd like to turn you to the beginning of the book to page ix, and that's labeled "PEER REVIEW COMMITTEE STATEMENT." Do you see that?

A. Yes.

Q. Did R. J. Reynolds assemble a peer review committee to review the research in this book prior to its publication?

A. It did. R. J. Reynolds commissioned this peer review committee to evaluate the chemistry and biology that's in this book.

Q. And if I could turn now and display page xii, I would like to go through the members of that peer review committee just quickly, if we could. Dr. Crapo from -- Crapo, excuse me, from Duke University?

A. That's correct.

This is page xiii, however. I think you just said two i's.

Q. I'm sorry. And Dr. Doull --

A. That's correct.

Q. -- from the University of Kansas?

A. That's right.

Q. Dr. Estabrook from Southwestern Medical School of the University of Texas?

A. Yes.

Q. Dr. Dietrich Hoffmann?

A. Yes.

Q. Dr. Adelbert Koestner from Michigan State?

A. Yes.

Q. Dr. Neal from the Chemical Industry Institute of Technology?

A. Right.

Q. Dr. Rosenkranz from Case Western Reserve University?

A. Right.

Q. Dr. Slaga from the University of Texas again?

A. Yes.

Q. Dr. Squire from Johns Hopkins?

A. Yes.

Q. Dr. Tannenbaum from MIT?

A. Correct.

Q. Dr. Utell from the University of Rochester?

A. Yes.

Q. And Dr. Wogan from MIT.

A. That's correct.

Q. Were the --

Was this peer review panel asked to comment on whether or not the Premier cigarette had met its design objectives?

A. Yes, it was.

Q. Could we go back to page ix, please.

A. Yes.

Q. And starting down at the bottom --

And again, this is the beginning of the peer review committee statement?

A. That's correct.

Q. And down there at the bottom of the page, let me read this and I want to ask you a question. It says, "The stated objectives of the development, as set forth in the monograph and emphasized in the oral presentations, can be summarized as follows:

"To simplify the chemical composition of mainstream and sidestream smoke emitted by the new cigarette.

"To minimize the biological activity of the mainstream and sidestream smoke emitted by the new cigarette.

*4 "To achieve significant reduction of environmental tobacco smoke from the new cigarette."

Then it goes on to say, "The committee considered these objectives to be commendable and concluded that they have been substantially achieved through the research and development program, as represented by the information presented to the committee for review."

Of what significance as a cigarette designer do you draw from that with respect to the design objectives of the Premier cigarette?

A. The significance I attach to it is it's a remarkable set of objectives to be met simultaneously. Major simplifications in the mainstream smoke, as we've already discussed, is extremely difficult, and minimizing biological activity, of course, is -- is a major challenge, and achieving significant reductions in environmental tobacco smoke is extremely difficult. All three of those taken together, I think, are very difficult objectives.

Q. Dr. Townsend, let me ask you --

Turn to page 45 in the monograph, if you would.

A. Okay.

Q. And is this a blowup, a copy of the figure on that page?

A. Yes, it is.

MR. WEBER: Your Honor, could I have the court's permission for Dr. Townsend to come down and explain these charts?

Thank you.

MR. WEBER: Can the court --

THE COURT: Fine.

BY MR. WEBER:

Q. Dr. Townsend, this is a reprint of a figure from the monograph, Fig. 2.2-1. Could you use that to explain this cigarette that was known as Premier.

A. Yes. First of all, this Premier cigarette is different than other cigarettes in that it heats tobacco, it doesn't burn tobacco. The construction of it is quite different, as you see, from other cigarettes. To generate heat, in fact, there is a heat source in the front that's made of carbon -- carbon or carbonaceous char, then around that carbon heat source is a glass insulator mat, then behind it is an aluminum capsule that contains a substrate, and the substrate is actually alumina beads, small beads that have on the surface of the beads tobacco materials, and those tobacco materials include tobacco flavors and nicotine, of course.

Around the outside of this aluminum capsule is a small layer of tobacco jacket that goes all the way around the capsule, and then this front -- front piece, then, is held together by special papers. Now the back piece includes -- or the mouth-end piece includes a tobacco roll, tobacco paper filter, actually, that's made of something that's very similar to the reconstituted tobacco we've already talked about, and then behind that is a very inefficient polypropylene filter. Then the two pieces are joined together.

Now when the cigarette is lit, the only thing that burns is this carbon heat source. Then as air is drawn into the front of the cigarette during a puff, the air is heated, the hot air then goes back to the -- inside the capsule where it heats these little pellets, these little alumina spheres that contain tobacco materials, contains a large -- a large amount of glycerin also, which is glycerol, which helps form the smoke, helps form the aerosol.

*5 The particulate phase, a lot of gas-phase compounds, primarily glycerin and water and tobacco flavors and some nicotine, then, exit through slots which are at the back end of this aluminum capsule. They continue down into the paper filter. These vapors condense, cool -- cool and then condense and form droplets and so you form a smoke. In addition, a small portion of air actually is drawn down the periphery along -- through the jacket, through this tobacco roll that's on the outside of the substrate. The substrate container, this aluminum capsule, gets warm, it heats this tobacco, and so the air that goes down through here, again, carries all the flavors from the warmed tobacco. But the tobacco doesn't burn, the fuel -- the heat source burns. So that's a general description of it.

In essence what we've done is we've taken -- essentially taken the pyrolysis step out of the cigarette. We've now got the combustion step and no pyrolysis step.

MR. WEBER: Your Honor, I'd like to move into evidence now several -- I'll put in two Premier cigarettes, which were labeled physical -- P3.

MR. CIRESI: No objection.

MR. WEBER: And with the court's permission, I'd like Dr. Townsend, if he could, to just stand here and take one apart so the jury can see the difference between what he just discussed and a regular cigarette.

THE COURT: Okay. Is that what you call destruction of evidence?

(Laughter.)

MR. WEBER: That's why I entered two.

THE COURT: And I assume that they're the same thing?

MR. WEBER: Yes.

THE COURT: All right. Go ahead.

MR. WEBER: I just opened the pack.

THE COURT: Go ahead.

MR. WEBER: Okay. I'll give one of these to the clerk. And if you could wait until I get back, doctor, and then illustrate with the actual cigarette that point you were just making.

THE WITNESS: Right.

A. This is a Premier cigarette. You'll notice the paper has turned a little bit yellow because they're quite old; this came from the test market in 1988.

THE WITNESS: Is it possible -- I don't want to step too close, Your Honor.

THE COURT: Well I don't want you any closer than that.

THE WITNESS: Yes, sir.

THE COURT: No offense.

THE WITNESS: I just wanted --

THE COURT: If you want the clerk to pass -- actually pass it through, that's fine, or you can hold it.

THE WITNESS: Maybe as I take it apart, maybe the clerk could actually pass some of the pieces through. It's up to you.

THE COURT: Well do you have something to put it in?

THE WITNESS: Let me proceed on this. Thank you, Your Honor.

A. And you'll notice that the front end is the carbon heat source. The carbon heat source is carefully prepared carbon. It's extruded. It actually has very small holes in the -- in the -- along the center core of the carbon, and that's where the air comes through once this carbon is lit and begins to burn. Now the back end, of course, looks like a normal filter. This happens -- this one happens to be made of polypropylene.

*6 Let me tear the cigarette directly in half, and we'll look at the mouth endpiece first. You'll see the roll of tobacco paper right here that's in front of the filter, and it is a type of reconstituted tobacco. Behind it -- behind it is the filter, okay, so just a very inefficient filter. And I'll open up the paper. See, we're right here, the tobacco paper filter. And I can even stretch it out. It's not the recon that we saw before, but it is a tobacco paper that's gathered and it's fitted together into this plug.

Now let's turn to the front end of the cigarette. And if I have a pen, I can actually -- you'll notice first of all you see the aluminum -- the end of the aluminum capsule in the center, and around it is the tobacco jacket. I'm going to push that aluminum capsule right out of the front. There's the glass insulator mat that surrounds the burning heat source, and then back here is tobacco that surrounded this aluminum capsule.

Now you'll notice that the carbon heat source is actually inserted into the front end of this capsule. The capsule has two slots on the back, and that's where the vapors come out, then they begin to cool and form smoke. And I'm actually getting this carbon all over my finger.

Let me break open the substrate capsule. Okay, I just snapped it in two, and I pour out in my hand the aluminum -- the alumina beads that contain tobacco materials. And it's a lot of glycerin, a little bit of tobacco and a little bit of nicotine that comes with that tobacco. So it's this that's heated and generates most of the smoke.

The tobacco jacket here contributes to the flavor because some air is drawn down that heated tobacco. So that's generally the construction.

THE COURT: Michele, pass it to the jury.

MR. WEBER: Thank you.

(Disassembled Premier cigarette displayed

to the jury by the clerk.)

MR. WEBER: Thank you, Your Honor.

BY MR. WEBER:

Q. Now Dr. Townsend, have you prepared a blowup of a chart - - of a photograph that appears at page 125 of the monograph relating to the tar that's trapped on the filter using the FTC method?

A. Yes, I have. I think it's down here.

Q. Put that up and explain that to the ladies and gentlemen of the jury, please.

A. Okay. If you recall when we were talking about the FTC test method before, I said that the method describes a very efficient glass fiber mat filter to collect all the particles when a cigarette is smoked on a smoking machine, then you weigh that to determine what the tar level is for a cigarette. This round circle, white circle, is one of those -- is -- is those Cambridge filter mats. They're extremely efficient for trapping particles in the size range of cigarette smoke.

Now what we have here is -- is an exhibit that shows different tar level cigarettes with the tar smoked on to these pads using a smoking machine. In the first case, this is the tar collected for a non-filtered cigarette which delivers about 40 milligrams; and then the next one is a full-flavored cigarette which delivers 20 milligrams, it's still in the high side of the average today; then a full- flavor low tar, which delivers 11 milligrams; an ultralight tar cigarette, which delivers about six milligrams; and then finally an ultralight tar cigarette that delivers two milligrams. So we've gone from 40 to two. And I suppose it's obvious that the lower the tar, the lighter the coloration on the Cambridge filter pad.

*7 The far right-hand corner bottom is Premier smoke collected on a Cambridge filter pad, and you'll notice that it's not colored, in spite of the fact that it delivers eight milligrams of total particulates. So eight milligrams of total particulates would place it somewhere between this six and this 11 in color if it contained all of the combustion products and pyrolysis products of tobacco, which it doesn't. It's primarily glycerin, a small amount of tobacco flavors, and nicotine. So you'll see that the Cambridge pad is -- is not colored.

MR. WEBER: Your Honor, I just noticed, this is X1422. It is -- we changed the titles on this. It's a demonstrative, but the substantive pictures are the same as in the book. I'd move that for demonstrative purposes, X1422. And I apologize to the court for neglecting to notice that.

MR. CIRESI: I have no objection, Your Honor.

THE COURT: Court will receive X1422 for illustrative purposes.

MR. WEBER: Thank you. I'm sorry, Your Honor. Thank you, Dr. Townsend.

BY MR. WEBER:

Q. Now did Reynolds undertake an analysis of comparing the constituents of tar from a reference cigarette to compare to the constituents of tar from the Premier cigarette?

A. We did. We did extensive comparisons of Premier to reference cigarettes.

Q. And this is a blowup of Fig. 4.2.1-1 from page 135 of the monograph, and is that a blowup of the total particulate matter for a reference cigarette; that is, a traditional cigarette?

A. It is. This is a pie chart of the composition, the general composition of smoke from, in this case, a 1R4F Kentucky reference cigarette.

MR. CIRESI: Your Honor, may we know if the reference cigarette is a commercial cigarette or not? Foundation, Your Honor.

BY MR. WEBER:

Q. Is there a standard reference cigarette used by scientists both within the cigarette industry and without to conduct tests against?

A. There are standard reference cigarettes. 1R4F is one that's provided by the University of Kentucky.

Q. All right. And that was the comparison that was made?

A. The comparison was made between Premier and Kentucky reference -- 1R4F reference cigarette purchased from the University of Kentucky.

Q. All right. Were you --

Had you finished completing the description of that?

A. No, sir.

If one looks at this pie chart, and I'll just be very brief, this represents the composition of the -- of the particulate material that exits the mouth end of this tobacco-burning 1R4F reference cigarette. This reference cigarette delivers 11 milligrams of particulates, and it turns out that most of the weight of that total particulate material is that large combination, that large mixture of many, many constituents that are products of pyrolysis and combustion, in this case about eight milligrams or about 72 percent. In this particular example there's about six, seven percent glycerol, glycerin, and in cigarettes, manufacturers add glycerin to help hold moisture on the cigarette so that it doesn't dry out rapidly. It's a humectant. Also in the TPM or the total particulate material there's about 11 percent water and about seven percent nicotine. So that's the general composition of the particulates from this tobacco- burning cigarette.

*8 Q. Now on page 136, is there a chart doing that same analysis for Premier?

A. Yes.

Q. Doctor, I'd like to -- woops.

Put that one down there for comparative purposes.

A. Okay.

Q. Now could you explain the chart that you placed on top, the one from page 136 of the monograph that relates to the new cigarette prototype discussed in the monograph.

A. Yes, I will. And this again represents the overall composition -- composition of the total particulate matter, but for Premier. But it's done in the same way as the earlier chart, and it turns out that for Premier, most of the weight of the particulate, about 51 percent, is water. The next most predominant material is glycerin or glycerol, and that's 37 percent. Now it's that glycerin that will condense and form the droplets or the particulates as opposed to having a lot of tobacco pyrolysis products as in this case. So the glycerin and water are the primary components of the aerosol particulates. A small level of propylene glycol, which is also added to help form the aerosol -- propylene glycol is a compound very similar to glycerin or glycerol, and you notice it's about three percent. About two percent nicotine in the smoke, in the particulates, and in contrast to this cigarette that burns where most of the weight of the particulate was this complex composition of other materials, here we see only five percent of the weight is that -- is a complex mixture of other materials. So we've completely changed the relative proportions of materials in the smoke -- or in the TPM of that product.

Q. Did Reynolds then undertake a study of the chemistry of the smoke?

A. We did. We did extensive chemistry of the smoke of Premier versus reference products.

Q. And let me show you a blowup of Table 4.3-1 --

MR. CIRESI: Page number, please.

MR. WEBER: Yes. And this is from page 151 and 152 in the monograph, but we put it on one board.

Q. Let me move that a little closer because it's got small numbers, if I could.

Now could you explain this chart which is labeled "Specific Mainstream Components," and particularly whether or not there was a comparison made to the reference cigarette regarding smoke chemistry.

A. What this chart lists -- and it is taken from the Premier monograph -- is a list of mainstream constituents, compounds in the mainstream smoke, and this is their Chemical Abstracts Registry number, so that -- that's not important to this discussion. This just shows where the properties of those compounds can be found. The important information is over here under "Amount," and it's comparing the 1R4F tobacco-burning product with the TM-6, or that's the Premier product, and then we finally calculate the percent change of the Premier versus the tobacco- burning product.

And we'll step down through some -- just some of these very quickly. Nicotine we see is reduced 62 percent for Premier versus this tobacco-burning product. Carbon -- carbon monoxide is reduced only three and a half percent, and that's because you've got a burning carbon heat -- heat source or fuel source. But you'll see that if we step down through the rest of these, there are major reductions in the constituents: 99.5, 95, here's one that's only five percent down, 93 percent, 83. And we see most of them are in the 80 to 90 percent reduction compared to the tobacco-burning product.

*9 Q. Okay, Dr. Townsend, if you'd resume your seat.

Were biological tests of various types conducted on the Premier cigarette?

A. Yes, there were a number of biological assays conducted on the Premier cigarette.

Q. Were any of those conducted within R. J. Reynolds?

A. Yes, some were conducted within R. J. Reynolds and some were conducted at contract laboratories outside of Reynolds, and there were some tests that were conducted at both places.

Q. And are the test results set forth in the monograph?

A. They are.

Q. How did Premier fare on the biological tests as compared to the reference cigarette?

MR. CIRESI: Excuse me, there's no foundation for this witness to interpret those results, Your Honor.

THE COURT: Are you referring to what's in the book there?

MR. WEBER: Yes. That's all.

THE COURT: Maybe you should refer to the page so we know what he's talking about.

MR. WEBER: Well I guess the issue is this whole -- there's many pages in there, so maybe I'll just go on, Your Honor, rather than go through the entirety.

BY MR. WEBER:

Q. What was the reaction overseas to the announcement and development of the Premier cigarette?

MR. CIRESI: Objection, Your Honor, irrelevant.

THE COURT: Sustained.

Q. Did scientists of respected institutions overseas comment upon the science supporting the Premier cigarette?

MR. CIRESI: Objection, irrelevant.

THE COURT: No, you may answer that.

A. There were a number of reactions of scientists overseas as well as here. We provided this Premier monograph to scientists around the world and we did get a lot of reaction. Most of the reaction I would characterize from overseas as being extremely positive of Premier and the chemistry reductions and biology reductions that were accomplished.

Q. And what was --

How would you compare that reaction to the reaction here in the United States?

A. I think the reaction in the United States was mixed. Some scientists saw it for the progress that we believed it to be. Many scientists, however, attacked Premier and actually sought to ban the product from the marketplace.

Q. Could you turn to the 1989 Surgeon General's report, which is Exhibit 3821, at page 318.

A. Okay.

Q. I can't --

Well why don't you start at the top of that paragraph, "Continued health concerns...?"

A. You'd like me to read it?

Q. Yes, sir.

A. "Continued health concerns among smokers are likely to encourage the cigarette industry to continue to design new cigarettes that are perceived as less hazardous. Besides filtered, low-yield cigarettes, other 'high-tech' cigarettes have been marketed that may appear to smokers to be less hazardous. These include one brand with a recessed filter and another with a 'flavor- control filter' that apparently allows the smoker to regulate the tar yield of individual cigarettes," references Davies 1987 -- Davis, sorry. "The R. J. Reynolds Tobacco Company announced in September 1987 plans to market a new product that heats rather than burns tobacco. R. J. Reynolds asserts that the product is a cigarette, and it has commonly been referred to in the press as a 'smokeless cigarette'. In a press release, the company's chief executive officer stated that 'a majority of the compounds produced by burning tobacco are eliminated or greatly reduced, including most compounds that are often associated with the smoking and health controversy' (R. J. Reynolds 1987). The American Medical Association (1988) and the Coalition on Smoking or Health (1988) have filed petitions with the U.S. Food and Drug Administration (FDA) seeking FDA regulation of this new product as a drug or medical device based on implicit health claims, among other reasons. As of November 1988, these petitions were under review by FDA -- by the FDA. In October 1988, R. J. Reynolds began test marketing the product, named Premier, in three cities (Phoenix and Tucson, Arizona, and St. Louis, Missouri) (Chapter 7)."

*10 Q. Now did R. J. Reynolds provide information on Premier to the FDA?

A. We did.

Q. Did R. J. Reynolds provide information to the FTC on Premier?

A. We --

MR. CIRESI: Your Honor, I'm going to object to that as being irrelevant unless they made an application to have it regulated as a drug.

THE COURT: Well he can answer the question.

A. R. J. Reynolds provided information to both the Food and Drug Administration and to the Federal Trade Commission, quite a lot of detailed information.

Q. Can you turn to tab 104, AZ008285.

A. Okay.

Q. And is that a letter sent by Surgeon General Koop in 1988 to the Commissioner of the Food and Drug Administration regarding Premier?

A. This is a letter from Dr. Koop, the Surgeon General, to Frank Young, who was then Commissioner of Food and Drug Administration.

MR. WEBER: Your Honor, I'd move AZ008285 for the non-hearsay purpose of simply establishing what the Surgeon General said about the Premier product.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive AZ008285.

BY MR. WEBER:

Q. Did Surgeon General Koop take a position with respect to whether Premier should be banned?

MR. CIRESI: Misstatement of the document, Your Honor.

THE COURT: Okay. Rephrase the question, counsel.

Q. Did Surgeon General Koop take the position as to whether the FDA should take jurisdiction over the Premier product and make it available through prescription only?

A. Surgeon General Koop did ask Frank Young, the Commissioner of FDA, to assert -- to exercise jurisdiction over Premier as a novel nicotine-delivery system.

Q. And if you could look at that last paragraph on the first page, and could you read to the ladies and gentlemen of the jury what the Surgeon General's position was about statements by Reynolds that address the fact that the smoke from Premier reduced or eliminated many compounds.

A. Yes. The title of this section is "Product health claims are implicit. In its public statements and marketing plans, RJR states regarding the product: 'a majority of the compounds produced by burning tobacco are eliminated or greatly reduced, including most compounds that are often associated with the smoking and health controversy.' To me, this suggests a health claim that the -- that the product is 'safe' or 'safer' than conventional products, which could result in reduced quitting by smokers, increased relapse by ex-smokers, and increased initiation by adolescents."

Q. I'd like you now to turn to tab 105, if you would. I'm sorry, it's BYS000124. I'm going to ask if you can identify that as a letter from the Minnesota Department of Health, from the Commissioner of Health, dated February 2, 1988, to the FDA.

A. That's correct.

MR. WEBER: Your Honor, I'd move the admission of BYS000124.

MR. CIRESI: No objection, Your Honor.

THE COURT: Court will receive BYS000124.

BY MR. WEBER:

*11 Q. And what was the position of the Commissioner of Health and the Minnesota Department of Health with respect to the Premier product which reduced or eliminated these compounds?

A. The Commissioner of Health from the Minnesota Department of Health is essentially asking the FDA commissioner to ban the product.

MR. CIRESI: Objection, it's a misstatement of the document, Your Honor.

THE COURT: Sustained.

Q. Is the Minnesota Health Commissioner asking the FDA to take jurisdiction over the product?

A. That's correct.

Q. And if the FDA took jurisdiction, could it be sold over the counter?

A. Absolutely not.

Q. Now was Premier ever marketed in Minnesota?

A. We did not test market Premier in Minnesota.

Q. Where was it test marketed?

A. It was test marketed -- test marketed in three locations, Phoenix, Arizona, Tucson, Arizona, and St. Louis, Missouri.

Q. And did every pack of Premier carry the Surgeon General's warning?

A. Certainly did.

Q. How did Premier fare in the test markets, doctor?

A. Well unfortunately Premier failed in the test market. There were a number of deficiencies in the acceptance of that product. The two most important ones were -- were it was difficult to light, that carbon heat source in the front was not as easy to light as other cigarettes, and some -- many smokers found that difficult and objectionable. The taste characteristics of this cigarette were quite different, too, as you can imagine based on what we've seen on the chemistry, so it didn't taste like other cigarettes, it was different, and most smokers did not accept that product for those two primary reasons.

Q. Now I want you to assume that earlier in this case plaintiffs' expert, Professor Jaffe, an economist from Boston, showed the jury a document from Brown & Williamson that implied that Reynolds could have fixed the taste problems with Premier. Do you think Reynolds could have fixed the taste problems with Premier?

A. As close as I was to that development project, we put everything we knew in to making that product as acceptable as possible. I don't think there were any easy fixes to the taste issue, to the taste problem, so I find that very difficult to believe.

Q. Was it claimed by Reynolds that Premier was a, quote, safer, unquote, or risk-free cigarette?

A. No. R. J. Reynolds didn't make any claims about Premier suggesting that it was a safe or safer cigarette. Absolutely not.

Q. Did --

Has any regulatory or scientific body here in the United States identified a single test or battery of tests that are generally accepted as demonstrating whether one cigarette is safer than another?

A. There is no generally --

Well there is no recognized battery of tests or protocols for evaluating whether one cigarette is safer than another. There have certainly been a lot of discussions about the types of biological tests and the types of chemistry end points that one may put together into a overall picture and -- and make informed judgments about whether one cigarette ought to be safer than another, but there is no -- there is no agreed-on measure of progress in defining whether one cigarette is safer than another.

*12 Q. We saw a document yesterday that dealt with the National Cancer Institute saying it was going to, as part of the Tobacco Working Group, issue guidelines on what made a cigarette less hazardous. Do you remember that?

A. Yes.

Q. And you said yesterday those guidelines weren't issued as part of the Tobacco Working Group; --

A. Correct.

Q. -- correct?

Has the National Cancer Institute or any other body of the federal government issued such guidelines since then?

A. No, they haven't.

Q. Let's put aside Premier's commercial failure for a moment, Dr. Townsend, and talk about the development path Premier was on.

Would it have been feasible for Reynolds to develop Premier sooner than it did?

A. No, not at all. In the Premier development, it took the coming together of a number of different ideas into a critical mass, that it was the right time with the right people and the right ideas and the right historical knowledge of cigarettes as well. The other thing is, and very importantly, is that there were no manufacturing techniques for developing such a complicated product. R. J. Reynolds had to work with suppliers that we've never worked with before to develop very complex machinery, for example, to insert the heat source into the aluminum capsule. Another reason why it really wasn't technically feasible is the best substrate material, those little alumina beads, actually wasn't invented until right before we began using them in Premier.

Q. Do you know of any cigarette that's ever been put on the market that simplified and reduced smoke chemistry to the degree Premier did?

A. I'm not aware of any chemistry that's come close to simplifying chemistry as much as Premier has.

Q. Now what conclusion could you draw as a cigarette designer with the Reynolds' experience with Premier?

A. I think there's a very important conclusion, and that is that consumer -- that new products must be consumer acceptable. Obviously Premier failed in the -- in the test markets. We didn't launch that product nationally because it was an unacceptable product, it was clearly unacceptable, and for any product to make progress in addressing smoking-and-health issues, consumer acceptance is essential.

Q. Now after the failure of Premier, did Reynolds abandon its efforts in the area of cigarettes that primarily heated instead of burned tobacco?

A. No. We -- we obviously stopped the Premier project, but we took what we had learned from the Premier project and moved it immediately into a new project that ultimately has led to the development of Eclipse. We tried to learn from the deficiencies of Premier, what consumers told us in the marketplace they saw as deficiencies, and we began an intensive development effort to fix those in a new product.

MR. CIRESI: Your Honor, if they're going to go any further on Eclipse, then we get into a discovery issue.

MR. WEBER: Your Honor, on that point, if the court and Mr. Ciresi will remember, in Mr. Schindler's testimony the Eclipse issue came up, and I commented how they'd asked Dr. Townsend a number of questions about Eclipse, and the court said we could go into the issues that plaintiffs asked Dr. Townsend about during his deposition. So all I intend to do --

*13 Each question will be tied to one they asked Dr. Townsend.

THE COURT: All right, counsel.

MR. WEBER: Thank you.

MR. CIRESI: You mean asked Mr. Schindler, not asked Dr. Townsend.

MR. WEBER: No, I'm going to ask Dr. Townsend. Did I say it wrong?

MR. CIRESI: Yeah, it's -- that's all right, counsel.

MR. WEBER: Okay.

THE COURT: We know what you mean.

MR. WEBER: It's so rare that we agree with everybody. Mr. Ciresi, I'm glad to take that.

BY MR. WEBER:

Q. Now were you asked questions about the removal of compounds that were thought to be carcinogenic to animals with respect to the Eclipse chemistry?

A. As I recall, there were some questions about that.

Q. Does Eclipse reduce such compounds?

A. Yes.

Q. Does it reduce them to the extent that the Premier cigarette did?

A. Not as far as Premier did. There are major reductions. One of the things that Eclipse --

MR. CIRESI: Your Honor, that's going beyond. It's going to get into issues beyond the discovery period.

THE COURT: Well it hasn't so far, but counsel is aware of the limitations, I assume.

MR. WEBER: Yes, absolutely, Your Honor.

THE COURT: Okay.

Q. And have there been tests on animals done with respect to the Eclipse smoke?

A. Yes, there have.

Q. Did you discuss at your deposition the taste characteristics of cigarettes that do not burn tobacco as opposed to a cigarette like Eclipse?

A. As I recall, there was some discussion in my deposition on that.

Q. And are there challenges to the cigarette designer coming up with an appropriately consumer acceptable taste in such a cigarette?

A. There are major challenges in coming up with a consumer acceptable cigarette, and the approach that Eclipse has taken, even from the very early days of the Eclipse project, trying to learn from the failure of Premier, was to burn a very, very small amount of tobacco to try to create enough taste to make that product consumer acceptable but still keep the chemistry very, very low and keep the biological assay results very, very low.

Q. And were you asked about the tar and nicotine yields of Eclipse at your deposition?

A. As I recall I was.

Q. And what are the tar and nicotine yields of Eclipse?

A. For Eclipse -- there are actually two versions of Eclipse, there's a regular and a light. There's not much difference in the tar yield. The regular, I believe, is about four milligrams of tar, and again it's predominantly glycerin, the lights version is about three milligrams per cigarette, and again it's mostly glycerin.

Q. Could you turn to tab 96 of a document in evidence, CE000282, and that's Dr. Hoffmann's 1997 article.

A. Okay.

Q. And again, Dr. Hoffmann in his writings has been critical of cigarettes for years; has he not?

A. That's correct.

Q. At page 356 of that article, did Dr. Hoffmann make some comments about the Eclipse cigarette?

*14 A. Yes.

Q. I'd like to --

And indeed he titled this "ADDENDUM;" correct?

A. "ADDENDUM TO THE CHANGING CIGARETTE," correct.

Q. I'd like to start over here in the middle of the middle paragraph at the sentence that starts "Concentrations...." Do you see that?

A. Yes.

Q. Could you read that sentence from Dr. Hoffmann's article.

A. Yes. "Concentrations of carcinogens such as benzo(a)pyrene, 2- aminobyphenyl, and 4-aminobyphenyl, as well as the nicotine-derived N- nitrosamines, which reside in the 'tar,' have thus been effectively lowered by 85 to 95 percent," he references Borgerding, et al, who are R. J. Reynolds chemists.

Q. Now --

A. And also references Glass. I'm sorry.

Q. Does he refer to the possibility of smoker compensation in the next paragraph?

A. Yes.

Q. Would you read that paragraph, and I want to ask you a question.

A. Sure. "While these analytical data compare products smoked under standardized machine-smoking conditions, smokers of the Eclipse are not likely to adhere to such standards but will be drawing puffs with much greater intensity (discussed earlier), namely, up to 4 puffs per minute with an average volume of 55 to 62 milliliters per puff. This practice generates nicotine delivery in the smoke stream that is two- to fourfold above that produced by standardized machine-smoking of cigarettes. Nevertheless, there is still substantial reduction of carcinogenic agents in the smokestream (airstream) of the Eclipse by comparison to the smoke of low-yield filter cigarettes; results from short-term assays for genotoxicity also indicate that the carcinogenic potential of the smoke of the Eclipse is significantly lower than that from low-yield filter cigarettes."

Q. Now is Eclipse currently in test market?

A. It is in test market.

Q. And where is that?

A. There are several test-market locations.

MR. CIRESI: Your Honor, we're getting beyond the discovery here.

MR. WEBER: That was asked at the deposition, Your Honor. That's the only reason.

THE COURT: Let's -- let's move on.

MR. WEBER: All right.
 

BY MR. WEBER:

Q. Now doctor, based on the background you've described for us, including your education and experience, do you have an opinion to a reasonable degree of scientific and professional certainty as to whether Reynolds and its principal domestic competitors, Philip Morris, Lorillard and Brown & Williamson, have developed and put into the marketplace cigarettes that responded to the theories and suggestions of the scientific community over the past 40 years?

MR. CIRESI: Object to the form of the question. It's overbroad.

THE COURT: Objection is sustained.

BY MR. WEBER:

Q. Let me ask you that question just with respect to Reynolds, doctor.

Do you have an opinion to a reasonable degree of scientific and professional certainty as to whether Reynolds has researched, developed, and put into the marketplace cigarettes that have responded to theories and suggestions of the scientific community over the past 40 years?

*15 A. Yes, I do.

Q. And what is that opinion?

MR. CIRESI: Objection, foundation.

THE COURT: You may answer that.

A. My very strong opinion is that R. J. Reynolds Tobacco Company has developed products and placed them in the market that directly respond to smoking-and-health issues that are raised by the scientific community and others.

Q. Now do you have --

Do you have an opinion to a reasonable degree of scientific and professional certainty as to whether R. J. Reynolds has designed and made available to smokers cigarettes that incorporate current state of the art of cigarette design?

A. Yes, I do.

Q. And what's that opinion?

A. I believe that R. J. Reynolds -- from my experience at R. J. Reynolds it's clear to me that the company has at every point in time implemented state- of-the-art technology in the marketplace as it's developed.

Q. Dr. Townsend, I want you to assume that plaintiffs' counsel told the jury on January 26th that, quote, the defendants would do nothing to change their products unless and until they were required to do so by government or as a result of being accountable in litigation, unquote. Based on your 20 years at Reynolds, do you believe that's a statement supported by fact?

A. I don't believe that that's a statement by fact, and -- of fact, and I actually have a hard time with that, frankly, because I've spent most of my professional career at Reynolds trying to design cigarettes to make differences in the marketplace and cigarettes that respond to smoking-and-health issues. I don't believe that it takes forcing to make a difference.

Q. Dr. Townsend, are you a smoker?

A. Yes, I am.

Q. RJR brand?

A. Yes.

MR. WEBER: No further questions, Dr. Townsend. Thank you.

THE COURT: Do you want to take a short recess?

MR. CIRESI: We should move stuff around, Your Honor, yes.

THE COURT: All right. Let's 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. CIRESI: Thank you.

Good afternoon, ladies and gentlemen.

(Collective "Good afternoon.")

BY MR. CIRESI:

Q. Good afternoon, sir.

A. Good afternoon.

Q. We met briefly this morning before lunch; correct?

A. That's correct.

Q. Now you don't have any evidence at RJR to confirm that low tar cigarettes are safer than any other cigarette; do you?

A. There's no evidence at RJR that low tar cigarettes are safer than higher tar cigarettes because there's no way to prove that one cigarette is safer than another. I think a number of people have made that reference. The Surgeon General has suggested that they may be, and others.

Q. I -- I just asked whether you at RJR had that. Did you understand my question?

*16 A. I understood your question.

Q. If, in the course of my examination of you, sir, you do not understand a question that I ask you, please tell me. All right?

A. Oh, yes.

Q. And if you don't hear me, let me know that also. Okay?

A. Be happy to.

Q. All right.

Now you haven't drawn any conclusions yourself about what causes risks in cigarettes because you're simply not an expert in that area; isn't that correct?

A. Are you --

You're referring to me personally?

Q. Yes.

A. I'm not an expert in the area of what causes risks. Certainly not.

Q. And you can't make any connection to biological relevance from exposure to carcinogens such as benzopyrene or any other carcinogen because you're not an expert; correct?

A. I'm a chemist. I'm certainly not a biologist. I can't draw any conclusions about biological relevance of particular chemicals in a complex mixture, and I certainly can't draw any -- any connection or -- or -- connection between certain biological assays and human disease.

Q. And you understand that it has been reported in the literature and by almost every medical organization in the world that cigarette smoking causes over 400,000 deaths in this country alone; correct?

A. I've seen that a number of times.

Q. You're also aware that over 82 percent of people who start smoking start before the age of 18; aren't you?

MR. WEBER: Objection, Your Honor, it's beyond the scope.

THE COURT: Well you can answer that. I don't think we should get into this much.

A. I'm not aware of that statistic at all.

Q. You've never heard that?

A. What did you say, 82 percent?

Q. Yes.

A. I'm not aware of that.

Q. Are you aware that the overwhelming majority start before the age of 18?

A. I've heard allocations -- allegations that a majority of smokers start under-age. I don't know whether that's true or not.

Q. Now you have 450 people in the R&D at Philip Morris; is that right?

A. This is R. J. Reynolds you're talking about.

Q. Excuse me, R. J. Reynolds. Is that right?

A. We have approximately 450 scientists or staff in the research and development department.

Q. And you told us that approximately 70 to 75 of those are Ph.D.'s?

A. Approximately.

Q. And approximately 50 to 55 hold a master's degree?

A. That's approximately correct.

Q. Do you know if any of them are qualified to state whether or not smoking causes disease? Do you know?

A. I don't know. We have a number of toxicologists and biologists and experts in the area. I don't know if they're qualified or not to -- to deal with that.

Q. Do you know how many hold the opinion that smoking causes disease of those 450 people?

A. I don't know. I haven't done a poll among all 450 people.

Q. That's what I was going to ask you.

So as the heard of research and development at RJR, you've never done such a poll of your own scientists; correct?

*17 A. Well first, I'm not head of research and development. I report to the senior vice-president who is in charge of research and development. I'm just in charge of product development and analytical chemistry research and analytical chemistry support for the company.

Q. Such a poll has never been conducted; correct?

A. Among the staff at R. J. Reynolds --

Q. Yes.

A. -- research and development, I'm not aware of such -- such a poll.

Q. So you wouldn't know how many hold the opinion that smoking causes lung cancer?

A. No.

Q. You don't know how many would hold the opinion that smoking causes chronic obstructive pulmonary disease.

MR. WEBER: Objection, Your Honor, it's beyond the scope. Counsel objected to anything that touched on biological effects during the direct.

MR. CIRESI: Your Honor --

MR. WEBER: Offered no opinion -- the witness offered no opinion on disease causation.

MR. CIRESI: He's testified about responding to public acceptability. He is in charge of product development. This is entirely within the scope of what he has testified to.

THE COURT: All right. Go ahead, counsel.

Q. Do you know how many hold the opinions that cigarette smoking causes bladder cancer?

A. I don't know.

Q. Do you know how many hold the opinion that cigarette smoking causes chronic heart disease?

A. I don't know.

Q. Do you know how many hold the opinion that cigarette smoking causes kidney cancer?

A. I don't know.

Q. Do you know how many hold the opinion that smoking causes laryngeal cancer?

A. I don't know that.

Q. Do you know how many hold the opinion that smoking causes oral cancer?

A. I have no idea.

Q. Do you know how many hold the opinion that smoking causes pancreatic cancer?

A. I don't know.

Q. Do you know how many hold the opinion that smoking causes peptic ulcers?

A. I don't know.

Q. Do you know how many hold the opinion that smoking causes diminished health status?

A. Diminished what?

Q. Health status.

A. I don't know.

Q. Do you know if anyone at RJR has ever conducted such a poll to find out the answer to any of those questions from its 450 scientists?

A. I'm not aware of such a poll.

Q. Do you know how many of the 450 scientists believe that nicotine is addictive?

MR. WEBER: Object to the reference "450 scientists," Your Honor, it's 450 employees.

THE COURT: Rephrase the question, counsel.

MR. WEBER: It's also -- I also did not ask this witness his opinion on whether cigarettes were addictive. It is beyond the scope, Your Honor.

THE COURT: You may answer the question if it's rephrased.

Q. Sir, do you know how many of the 450 people in your research and development department, which include Ph.D.'s and masters in science, hold the opinion that nicotine is addictive?

A. I have no idea. I have not done a poll on that either.

Q. Has RJR ever done a poll of its research and development department to ascertain that question?

*18 A. I'm not aware of such a poll.

Q. Do you know how many of the 450 people in your research and development department, including the Ph.D.'s and those who hold a masters degree, believe that the cigarette is a drug- delivery device?

A. I have not done a poll on that either.

Q. So you don't know how many hold that opinion.

A. I have no idea.

Q. So as far as you know, Dr. Townsend, 400 or 450 of the people in that department, excluding yourself, could hold these opinions; couldn't they, as far as you know?

A. Well as I said, I have no idea, so there's no way for me to speculate.

Q. So it could be everybody but you; isn't that right?

A. There's no way for me to speculate. I'm sorry.

Q. Now you said you attended a conference with Dietrich Hoffmann.

A. That's correct.

Q. You attended a conference with Dr. Henningfield?

A. Yes.

Q. You attended a conference with Dr. Benowitz?

A. That's correct.

Q. You attended a conference with Dr. Shopland?

A. That's correct.

Q. And you have given some statements about what they believe or don't believe or have said about cigarettes; haven't you?

A. There have been some statements from some of those scientists.

Q. And you're aware, are you not, based on your talking with them, that they all believe the industry has deceived the public with respect to what it knows?

MR. WEBER: Let me object, Your Honor. Counsel is testifying with that question.

THE COURT: Rephrase it, counsel.

BY MR. CIRESI:

Q. Have you heard that statement made by them, sir?

A. That --

I'm sorry, can you repeart the question?

Q. That the industry has deceived the public with respect to what it knew about its product.

A. Clearly those scientists are -- believe that people by and large, my -- my understanding is that they believe that people should not smoke. I have never heard any one of them say in my presence anything of the sort that you just phrased.

Q. You're certain of that.

A. As far as I can recall.

Q. As far as you can recall.

You know they all believe, because they've stated it in your presence, that smoking causes the diseases I just mentioned; don't you?

MR. WEBER: Let me object, counsel is testifying again, Your Honor.

THE COURT: No, you may answer that.

A. I think the scientists you name -- named by and large, as best I know, believe themselves that cigarette smoking causes cancer, as do most of the people in this country.

Q. And sir, all of those scientists, based on your discussion with them, believe that nicotine is addictive; don't they?

A. I don't know whether that's true or not. Again, I haven't talked to each one of them about addiction and whether nicotine is addictive. I don't know. I know some of them do. I don't know whether all of them do.

Q. Now you said that you carefully follow the Surgeon General's reports; is that correct?

*19 A. I've read bits and pieces of most of the Surgeon General's reports, certainly the parts that pertain to cigarette design.

Q. Have you read only bits and pieces?

A. I think there may have been one, particularly the 1981 Surgeon General's report, that I've managed to get through most of it if not all.

Q. Have you done that recently?

A. But --

Q. I'm sorry, you weren't done.

A. But I -- I would say that most of the Surgeon General's reports, to me, I go through and read for the things that I understand, the things that I know about and the things that I do in my job --

Q. So --

A. -- in the area --

Q. -- you as a scientist --

MR. WEBER: Your Honor, the witness was interrupted in the middle of his answer.

THE COURT: Were you finished?

A. Well I just had one more phrase, in -- in my job responsibilities.

THE COURT: Go ahead.

Q. So you as a scientist at RJR pick and choose what you will read in the Surgeon General's reports; correct?

A. I don't think that's a fair characterization at all, because I do read the things that I understand, the things that are important for me to -- to do my job. You've already made it very clear that I'm not a biologist and that I don't understand biological implications of many things, and that's a lot of what's in the Surgeon General's reports. But I do read the issues on cigarette design, suggestions for modifications of cigarette design that may address smoking-and-health issues.

Q. So you as a Ph.D. do not understand those portions which have biological implications, so you don't read that; fair enough?

A. I think that's a generalization. I don't understand details of biology nor toxicology. I do understand superficially some things in biology, I'm certainly not ignorant in the area, and I'm not anywhere close to being an expert in the area.

Q. So you don't --

A. I do --

Q. I'm sorry.

A. I do look at some things on biology, whether it's internal research that we conduct at Reynolds, whether it's external research, or even in the Surgeon General's report. I don't pretend to understand all that's in the Surgeon General's report about biology.

Q. And I believe you said as a result you only look at those portions that pertain to your job; isn't that what you said?

A. And --

That's exactly what I said, and -- and in -- in that sense there are portions of the biology that do pertain to my job in that they give direction to cigarette design.

Do I understand the biology? I'm not an expert in that area. I understand some things, but I'm certainly not an expert.

Q. And you would expect the same of, for example, teen-agers under the age of 18. They wouldn't understand the Surgeon General's report; would they?

MR. WEBER: I will object as beyond the scope, Your Honor.

THE COURT: You can answer that.

A. I've run into some bright -- bright students under 18. There -- there may be some biology students under 18 that understand a lot more of it than I do. I don't know. I don't know how to answer your question. I don't know.

*20 Q. And you don't know in the general population how many people might understand the biological or other portions of the Surgeon General's reports; do you?

A. Well I have no idea of what proportion of the -- of the population, first, reads the Surgeon General's report, and second, understands it. I do know that the conclusions of the Surgeon General's reports are widely disseminated in the popular press, so I think people have a general sense for some of the things that are in Surgeon General's reports.

Q. That wasn't what I asked you. I asked you about reading the Surgeon General's report.

A. Oh, I'm sorry, maybe I misunderstood your question.

Q. Remember, if you misunderstand a question, please let me know. Okay?

MR. WEBER: Let me object to that, Your Honor. The question did in fact relate to what the public knew about the Surgeon General reports, so I would object to counsel's commentary.

THE COURT: Why don't you re-ask the question, counsel.

BY MR. CIRESI:

Q. Do you know how many people in the population read the Surgeon General's report?

A. I have no idea.

Q. You would expect that the vast majority of the people don't read the Surgeon General's reports; wouldn't you?

A. Well I said to your earlier question I have no idea. Are -- are you asking me to guess?

Q. Well I don't want you to guess. I just want to know if you know. Do you know?

A. I don't know. I have no idea.

Q. Now you talked about, I think, seven Reynolds documents on direct. Do you remember that?

A. I remember talking about some. I don't recall how many.

Q. Very few; correct?

A. There were few relative to the total number of documents we talked about.

Q. Let me restate it. I think it was eight. Would you accept that number?

A. Again, I don't know exactly how many. I'll just have to take your word for it.

Q. Now you were not an author of any of those documents; correct?

A. That's correct.

Q. You were not a recipient of any of those documents.

A. I'm not sure. I'd have to go back and look. I don't recall.

Q. Do you recall any document being entered into evidence here during your direct that you authored?

A. I think I've already said no, I didn't author any of those.

Q. Okay. Do you recall any document being offered into evidence that dealt with a subject matter and investigation into the design of cigarettes that you yourself participated in?

A. Not in the documents that were entered in the direct, as I recall.

Q. Can you direct your attention, please, to Exhibit 14145. It's in volume two, doctor. We'll be dealing with two volumes, and I'll -- I'll direct you to the volume and the exhibit number, and the exhibit number will be along the tabs.

A. All right.

Q. 14145. This is entitled the Frank Statement to -- to Smokers. You've seen this before.

A. I have seen it before, yes.

Q. You've read it; correct?

*21 A. Yes. It's been a while since I've read it.

Q. And you recall that there's a statement in there that your company, RJR, among others, stated to the public that "We believe the products we make are not injurious to health." Do you see that?

A. I see that statement.

Q. Now when that statement was made, it was not sustainable from a scientific standpoint; was it?

A. I believe that in science, one cannot prove a negative.

Q. So it was not sustainable; correct?

A. I think scientific experiments could prove, if one did the right experiments and if in fact this statement were -- if -- if in fact cigarette smoking caused those diseases, and one did successful experiments to demonstrate it, you could only prove that it did cause it, not that it didn't cause it.

Q. So this statement when -- when it was made was not sustainable; correct?

A. From a strict scientific point of view, one cannot prove a negative, so I don't see that one could make that statement from a strict scientific point of view.

Q. So that when it was made, it was false from a scientific point of view; correct?

A. I don't think that this statement can be supported from a strict scientific point of view, because you cannot prove a negative in experimentation.

Q. So if it could not be sustained, it was false when it was made from a scientific standpoint; correct?

MR. WEBER: Asked and answered, Your Honor.

THE COURT: That hasn't been answered yet.

A. I think that's a logical conclusion from my answer to the earlier question.

Q. It's the only conclusion from your answer to the earlier question; correct?

A. Well I don't know -- I don't know the circumstances around this statement. I think if we take that one sentence and look at it alone as a scientist, I'm telling you that I don't think that one can conduct experiments that prove that cigarette smoking does not cause cancer, and so if by that you mean that that's a false statement, then based on my predicate, I think, you know, I would agree with that.

Q. Okay. And that's the only conclusion that you can draw from a scientific standpoint, that it's false; correct?

A. Well I think I've already answered the question.

Q. And the answer is yes; correct?

A. I think, again, from strict scientific principles, I don't see how one can prove a negative, which is the tone of this statement. Given that, with strict scientific approach, then I don't see that that's -- that statement, as it's written, can be supported.

Q. Okay. And sir, it's a pretty simple question. So then the answer to my question --

MR. WEBER: Object to the commentary, Your Honor.

THE COURT: Yes, please no commentary.

MR. CIRESI: I will not comment.

Q. The answer, then, to my question is simply yes, it's false, from a scientific standpoint; correct?

MR. WEBER: Your Honor, he's not allowed to tell the witness how to answer the question. I object to that. It hasn't been allowed.

*22 THE COURT: Well don't tell the witness how to answer the question, counsel.

MR. CIRESI: I'm not -- I didn't think I did.

BY MR. CIRESI:

Q. The answer, sir, is yes, it's false from a scientific standpoint; correct?

MR. WEBER: Same objection, Your Honor.

A. I don't -- I don't believe that we can say that this statement is false, to use your word, from a scientific standpoint. I think it's -- what --

What my take on this is that the science doesn't support this statement, the implication being that if you're -- if you're trying -- if -- if you want to explore my conclusion to this as being this statement is false, meaning it's not injurious, I don't know whether it is or not.

Q. That's not -- that's not what I asked, doctor. You said the statement was not sustainable from a scientific standpoint; correct?

A. My personal opinion is, strict scientific principles, I don't see how this statement could be supported.

Q. Okay.

A. Period.

Q. And if it could not be supported, then it is false from a scientific standpoint; correct?

A. If you understand the way I answered your question before, then I will, with that understanding, agree that that's -- that that's a false statement based on the fact that strict science or strictly scientific approach I don't believe personally can prove a negative of this sort.

Q. And RJR never retracted that statement; did it?

A. I don't know. I'm not aware of such a case.

Q. And you yourself don't know how to determine how one product is safer than another; correct?

A. I think that's a mischaracterization of what I said. I think what I said was that there is no accepted means or methods or group of tests that will prove that one cigarette is safer than another. There is certainly a lot of biological assays out there that people run to provide some comparison. We run some of those at Reynolds, scientists outside the industry run them.

Q. You don't know how to determine whether one cigarette is safer than another; do you?

A. I don't think science --

Q. By "you" -- excuse me, sir. By "you" I mean Reynolds, not you personally.

A. I don't think science knows how to do that yet. There is no agreement or general understanding of how to do that, and so certainly scientists at Reynolds don't either.

Q. Now have you ever -- and by "you" I mean Reynolds -- ever told the public we don't know if low tar cigarettes are safer than other cigarettes? Have you ever done that?

A. I'm not aware of such a case.

Q. Have you ever suggested to anyone at Reynolds that they make such a statement to the public?

A. Me personally?

Q. Yes.

A. No, I've not personally suggested that to anybody at Reynolds, because a number of -- a number of people in the scientific community have suggested over a long period of time, even up to very recent, that they may be safer, and to me personally, common sense says that less ought to be better. So low tar, even if you can't prove it, low tar cigarettes, at least in my -- in my gut, ought to be better.

*23 Q. Well did you intend the public to believe in their gut that they were better? And by "you" I mean Reynolds.

A. As far as the smoking public, the smoking public I think is quite aware of -- of low tar cigarettes. I think they've reached their own conclusions from the public information, from the Surgeon General's reports, about what those products may represent.

Q. That's not what I asked you, sir.

A. I'm sorry, I misunderstood your question then.

Q. Well again, if you misunderstand my question, please tell me. Okay? Is that agreeable?

A. I'll be happy to if I realize I'm misunderstanding. I'm sorry.

Q. Did Reynolds intend the public to believe in their gut that low tar cigarettes were better?

A. Okay. I did misunderstand you. I'm sorry.

I'm not -- I'm not aware of R. J. Reynolds intending for smokers to believe that. I think R. J. Reynolds certainly was responding to consumer demand, to the demand from the smoking public, and from the scientific community in calls for low tar cigarettes, but I'm not aware of the fact of what you asked.

Q. So is it your testimony that the public came running to Reynolds and said we want a low tar cigarette because they're safer? Is that what you're saying?

A. No.

MR. WEBER: Objection.

A. That's --

MR. WEBER: Objection, Your Honor, it's a mischaracterization and argumentative.

THE COURT: Well it is a little argumentative.

Q. Did the public, through a petition or a delegation, come to Reynolds and say we want a low tar cigarette because it's safer? To your knowledge, did they ever do that?

A. Not to my knowledge, because that's not the way consumer product companies work. We responded to a theory for reduced tar, placed it in the market, and consumers wanted it. Consumers began demanding lower and lower tar products. We put it in the market. If they hadn't responded and demanded those products, we'd still be at 38 or 40 milligrams tar per cigarette.

Q. Did you do -- and by "you" I mean you personally -- ever do any market study to see whether Reynolds reassured the public that low tar cigarettes were safer? Did you ever do that?

A. No, I've never done that personally.

Q. Have you ever looked at the marketing material of Reynolds to see if they were reassuring the public that low tar cigarettes were safer and they should smoke that rather than quit?

MR. WEBER: Objection, Your Honor, marketing under the rules is not within the scope of the direct or the cross on this witness.

MR. CIRESI: Your Honor, he's testified that they've responded to two things, consumer demand and, he says, the scientific community. Right now I'm dealing just with the former.

THE COURT: All right. You can pursue consumer demand, the statement with regard to that.

A. I'm sorry, can you re-ask the question, please?

Q. Have you ever looked at the marketing material of Reynolds to see if they were reassuring the public that low tar cigarettes were safer and they should smoke those rather than quit?

*24 A. That low tar cigarettes were safer?

Q. Yes.

A. Reassuring?

Q. Yes. Did you ever look --

A. I --

Q. -- to see if Reynolds did that.

A. I've never specifically gone out and looked for that because I've seen a fair amount of Reynolds advertising, and from the advertising it's never occurred to me that that may be happening.

Q. Did you ever look to see whether Reynolds told the public that there was still a smoking controversy, and that there was no proof that cigarette smoking caused disease?

A. To the first part of your question, I can recall an advertisement that talked about controversy. I can't remember a case referring to the second part of your question.

Q. And is the ad that you remember referring to controversy one that you looked at because we designated it for you in this case?

A. I have seen one ad that you designated. I've seen others a couple years ago.

Q. Can you direct your attention, sir, to Exhibit 12581, which is in exhibit one. This is a document that's in evidence, it's by Claude Teague, Jr., dated February 2nd, 1953.

A. You said 12581. Okay.

Q. Correct. It's toward the end, doctor.

A. I've got it.

Q. Do you have it?

A. Yes.

Q. Survey of cancer research by Claude E. Teague, 2 February 1953; correct?

A. That's correct.

Q. You've read this; correct?

A. Yes, I have. It's been a good while ago since I've read it, but I have.

Q. And this was about one year before the Frank Statement; correct?

A. This was in February 1953. I believe the Frank Statement was sometime in '54.

Q. Okay. If I tell you it was January 4th, 1954, will you accept that date, the Frank Statement?

A. I have no reason to disagree.

Q. Now if you direct your attention to page 12, Dr. Teague in the first paragraph, last two sentences, is referring to a report of the isolation of benzopyrene from the pyrolytic distillate of tobacco as reported in 1941; correct?

A. You're in the first paragraph under C.?

Q. Under C., the last two sentences.

A. Oh, I see. I see.

That's what it says.

Q. And it reports that the benzopyrene was highly carcinogenic in animal tests; correct?

A. That's what this document says.

Q. Now do you know if at any point, based on your investigation into the history of RJR that you testified to on direct, whether RJR did any analysis from 1941 to 1953 to determine what carcinogens were in its smoke?

A. Well I think that's relatively easy for me to answer because I don't think our research and development department was in existence until the early '50s, as I recall, because there was staffing that began in the early ' 50s. Dr. Teague was one of the early employees that was hired.

Q. Fair enough.

So that Reynolds, who was selling cigarettes to the public, didn't even have an R&D department until sometime in the 1950s; is that correct?

A. Well I didn't say sometime in the 1950s, I say in the very early 1950s, about 19 --

*25 Q. Early --

A. I can guess '51 or thereabouts, '52.

Q. Well you said you didn't want to guess or speculate; didn't you?

A. I said that earlier, yes.

Q. Okay. So you don't know whether they started their R&D; do you?

A. I don't know a specific date. I do know it was in the very early '50s.

Q. All right. Then it's fair to state that from the time RJR started as a company up to the early '50s, they hadn't done any in- house analysis of what carcinogens were in their smoke; correct?

A. There wasn't, to my understanding, a chemical research group in the company of that time period up until the early '50s. There was, however, an analytical laboratory that supported manufacturing and did a number of measurements to support manufacturing and -- and process development.

Q. Can you point to any document which would support an assertion by you that Reynolds, up to 1953, did any analysis of its cigarette smoke to see if there were carcinogens in it?

A. Oh, I didn't say that.

Q. Okay. Because if there was such a document, you would --

A. I didn't --

Q. -- you would provide it; wouldn't you?

A. Absolutely. I didn't -- I didn't say that at all.

Q. Now can you turn to page 14, and do you see the conclusions that Dr. Teague draws in section five?

A. Yes.

Q. Now one year before the Frank Statement Dr. Teague concluded, about halfway through that paragraph, that "Studies of clinical data tend to confirm the relationship between heavy and prolonged tobacco smoking and the incidence of cancer of the lung." Do you see that?

A. That's what it says.

Q. Did Reynolds ever disclose that to the public?

A. My understanding is Dr. Teague was essentially the new kid on the block, and this was a literature survey, so he got this from the external scientific literature, certainly not from R. J. Reynolds' files, because as I've already said, the research and development department had just started.

Q. That wasn't my question. Did RJR ever tell the public that studies of clinical data tend to confirm the relationship between heavy and prolonged tobacco smoking and the incidence of cancer of the lung?

A. I guess I don't understand your question then, because this was in the external literature.

Q. Well that's if somebody went out and read medical literature; correct?

A. Well that's what Dr. Teague did here.

Q. Right. And he's a doctor who is doing that as part of his duty at the company to learn about its product; correct?

A. He went out to try to understand the medical issues, the biological issues of the smoking-and-health issue.

Q. Did Reynolds then, after Dr. Teague concluded this, tell the consuming public that studies of clinical data tend to confirm the relationship between heavy and prolonged smoking and the incidence of cancer of the lung?

MR. WEBER: Let me object on asked and answered, and it's also beyond the scope, Your Honor, this was not within the product development testimony.

*26 THE COURT: It's not been answered.

MR. CIRESI: You may answer, sir.

THE WITNESS: I'm sorry, can you ask it again?

MR. CIRESI: Yes.

THE WITNESS: I'm sorry.

Q. Did Reynolds, after Dr. Teague concluded this, tell the consuming public that studies of clinical data tend to confirm the relationship between heavy and prolonged tobacco smoking and incidence of cancer of the lung?

A. I'm not aware of any case where Reynolds went out and informed the public of this. It was already in the public domain as well that the epidemiology has showed a relationship between heavy and prolonged smoking and incidence of cancer of the lung.

Q. Did they take out an ad, like they did in the Frank Statement where they said smoking wasn't harmful, and say we have concluded that the clinical studies tend to confirm the relationship between heavy and prolonged smoking and cancer of the lung? Did they take out such an ad?

A. I'm not aware of such an ad.

Q. Now Dr. Teague, right above the conclusions, references the fact that cigarettes are encased in paper and organic material which could possibly burn or pyrolyze to give carcinogens; correct?

A. That's what he says.

Q. And he says the same applies to the glue and ink used on the paper; correct?

A. That's what he says.

Q. And you mentioned something about additives, and we'll get into that, but the Reynolds company doesn't give to the government information on additives on paper or filters; does it?

A. In the materials themselves, I believe there's some that are, as I recall.

Q. Can you point to any document that would confirm your statement that Reynolds provides to the government the additives on paper or filters?

A. We're -- we're really getting out of my area, but my recollection is that there is some tobacco flavors that are in filters that may be on the -- on the list that's turned over to the Department of HHS. I may be wrong, but that's my recollection.

Q. You mean there may be an additive that's on tobacco that's also on the paper; is that what you're saying?

A. Or filter --

Flavors that are actually placed in the filter at very low levels.

Q. Okay. Other than that, the tobacco companies -- and I'm specifically talking about Reynolds -- does not provide to the government information regarding additives used in either the filter or the paper; does it?

A. I'm not aware of such a case. I do know that we test our papers and other materials, including filters, and -- and do complete -- the same as we do for additives, we evaluate the scientific literature, we conduct pyrolysis studies on cigarette papers where necessary, we look at biological testing where necessary.

Q. That's not what I asked you.

A. I'm sorry. What did you ask me?

Q. Okay? Reynolds does not provide the additives, information on additives used on paper or filters unless it's also used on tobacco to the FTC; does it?

*27 A. That's a different question. You just said "to the government," and I think I answered that question.

Q. Does it provide it to the FTC?

A. No, not to the FTC.

Q. Does it provide it to the FDA?

A. Information -- I'm sorry. Information on ingredients and additives are provided to the Department of Health and Human Services, not FTC.

Q. And do you provide all of the tests you've done to the Department of Health and Human Services?

A. All of the tests --

Q. The tests.

A. -- that we've done?

Q. Yes.

A. No, of course not.

Q. Now in the 1950s was Reynolds doing any analyses of its paper or filter or additives?

A. What do you mean, "analyses?" What kind of analyses are you referring to?

Q. Biological analyses of these to determine their possible role as carcinogens or carcinogen-promoting?

A. I'm aware that there were some studies on cigarette paper looking at chemistry differences and how that may relate to biology. I'm not aware of internal biological research at Reynolds dealing with cigarette paper in that very narrow timeframe of the '50s.

Q. So in the '50s they weren't doing that. Fair statement; correct?

A. As far as I know.

THE COURT: Counsel, counsel, we'll have to take a short recess. It will be very short.

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. CIRESI: Thank you, Your Honor.

BY MR. CIRESI:

Q. Can you turn to page 15 of Dr. Teague's memorandum.

A. Yes, I'm there.

Q. That's in the recommendations section?

A. That's correct.

Q. And at paragraph C., Dr. Teague makes a recommendation that all tobacco additives, flavorants and humectants used by this company be examined carefully with respect to their possible roles as carcinogens or carcinogen-producing agents; correct?

A. That's what he says, that's correct.

Q. And he states in paragraph D. that "In view of the facts presented in this report it is recommended that management take cognizance of the problem and its implications to our industry, and that positive research action be planned and initiated without delay." Correct?

A. That's what he says, that's correct.

Q. And sir, you understand that RJR had and has a duty to know the hazards and dangers of its product; correct?

A. I think R. J. Reynolds has a clear responsibility to know the medical science and to understand the implications on -- on health. No question about it.

Q. And it has a duty to look in medical journals and ascertain information and disseminate that information to its consumers; doesn't it?

MR. WEBER: Objection, Your Honor, information -- or testimony about consumers and disseminating information was not in the scope of direct and wasn't allowed.

THE COURT: You may answer that question.

*28 A. I'm sorry, can you repeat that question?

Q. Absolutely, sir.

It has a duty to look in medical journals and ascertain information regarding its product and to disseminate that information to its customers; correct?

A. If you're calling for a legal opinion on the word "duty" to disseminate information, I don't -- I can't speak to that. I think the smoking public certainly is aware of what we're aware of in -- in the literature.

Q. I didn't ask you that.

Have you done any survey to see whether people read medical journals? Have you done that?

A. No, I haven't.

Q. Are you aware of any survey conducted by the Reynolds company of its customers to see if they read medical journals?

A. I'm not aware of such a survey.

Q. Now do you understand that Reynolds had and has a responsibility, as you said -- I'll use your word -- to review the medical journals and to disseminate the information that it learns about its product to the consuming public?

MR. WEBER: Same objection, Your Honor.

THE COURT: You may answer that.

A. I think Reynolds certainly has a responsibility to read and understand the medical literature. I do believe that the public knows as much about smoking-and-health issues, and in fact most of the people in this country believe that cigarette smoking causes lung cancer.

Q. That's not what I asked you, sir. You haven't conducted - -

A. Then I'm sorry.

Q. You haven't conducted any surveys as to what people know at any given point of time over the last 40 years; have you?

A. I'm aware of a number of outside surveys, not R. J. Reynolds surveys.

Q. Sir, have you conducted any polls to know or learn what people might know over points in time over the last 40 years; have you?

A. I'm not aware of any surveys that -- that are conducted by R. J. Reynolds. I'm not aware of them.

Q. Now let's go back to my question. You understand that Reynolds has a responsibility to disseminate information that it learns about its product to its consumers and customers; don't you?

MR. WEBER: Same objection, Your Honor.

THE COURT: You may answer it.

A. I don't know that R. J. Reynolds has a responsibility to disseminate medical information to its consumers. It clearly has a responsibility to understand the medical literature and to do exactly what I and my colleagues have been doing for years, which is to try to address those smoking-and-health issues through cigarette design.

Q. Sir --

A. As far as informing the consumer -- the consuming public, I think consumers are already quite aware of most of the issues.

Q. Is your answer you don't know?

A. I --

Q. Because if it is, just tell me.

A. I think my --

MR. WEBER: Objection, Your Honor, the question was answered.

THE COURT: No, the question wasn't answered. You may answer.

Q. Is your question you don't know -- or your answer?

A. I've --

You had two parts in there. I clearly agree with the Reynolds responsibility for reading and understanding the medical literature.

*29 Q. All right.

A. If Reynolds has a responsibility to inform consumers about that medical literature, I don't know.

Q. You don't know. Okay.

Nobody in Reynolds in the 20 years you've been there has told you you have that responsibility; correct?

A. To inform consumers about medical literature? I'm not aware of such a responsibility. We do inform consumers about the products we sell and the differences in the products we sell, and we provide consumers with a range of products.

Q. Sir, you know that Reynolds over the last 40 years has attempted to say there's a controversy about the medical risks of smoking; don't you?

MR. WEBER: Let me object, Your Honor. The medical issues were beyond the scope of direct. He was not -- he was not to testify about that.

THE COURT: No, you may answer that.

A. I'm aware that R. J. Reynolds has -- has published advertisements, paid advertisements, or a couple, or several, that have spoken to an open controversy on the debate. Beyond that, I don't know.

Q. You know they've sent letters to consumers; don't you?

A. About?

MR. WEBER: Objection, Your Honor.

Q. About promoting a medical controversy.

MR. WEBER: Let me object. This is well beyond the scope of direct now, Your Honor.

THE COURT: The objection is sustained.

BY MR. CIRESI:

Q. Sir, in dealing with your customers, you know that Reynolds has communicated with them, these customers who you say have demanded safe cigarettes.

MR. WEBER: Same objection, Your Honor.

THE COURT: No, this is a different question.

A. R. J. Reynolds communicates with its customers in a variety of ways, through advertising, through 800 numbers, through interviews. There are a number of things.

Q. And one of those mechanisms is through form letters; isn't it?

A. There are letters to consumers, some possibly form letters, some others not form letters to consumers.

Q. And in those letters RJR communicates information concerning medical issues; correct?

MR. WEBER: Objection, Your Honor, it's the very question you ruled on before.

THE COURT: No, this is a different question now.

A. I'm not aware in form letters that we communicate with our consumers on medical issues. I'm not aware of that.

Q. Can you direct your attention -- let me retract that.

You've never seen such a letter?

A. That deals with medical information?

Q. Correct.

A. I can't recall such a case that deals with medical information.

Q. Can you direct your attention to Exhibit 18187, which is in volume two. It's about two-thirds of the way through, sir.

A. 18182.

Q. Correct.

A. It's not in my booklet.

THE COURT: 18187.

MR. CIRESI: 18187.

A. 18187 is in my book. I'm sorry.

Q. Do you have it, sir?

A. Yes.

Q. And this is a document authored by Dr. Rodgman; correct?

A. Yes. This is an internal R. J. Reynolds report authored by Dr. Rodgman.

*30 Q. And you've read this report; correct?

A. Yes, I have. It's -- it's been a while.

Q. And --

Well you talked about it on direct; didn't you?

A. Yes. It's been a while since I've read this thing in its entirety, but I have actually, yes.

Q. And it's entitled "A CRITICAL AND OBJECTIVE APPRAISAL OF THE SMOKING AND HEALTH PROBLEM?"

A. That's correct.

Q. And down below in the first page under the word "MEMORANDUM," Dr. Rodgman states in the first paragraph, "Although the major part of the sales of this Company consists of cigarettes, what the Company sells is cigarette smoke. To maintain our first- place position against any eventuality, we should be first in acquisition of information concerning the composition and physiologic effects of cigarette smoke." Correct?

A. That's what he says, that's correct.

Q. And -- and he's referring, in part, to what Dr. Teague was referring to back in 1953; correct?

A. I think things are quite different in 1962. I think there's some overlap in the issues. He's certainly suggesting that we should be first in understanding as much as possible about smoke composition and the health aspects of cigarette smoking. That's what it says.

Q. And that's what Dr. Teague was referring to back in 1953; correct?

A. Doctor -- Dr. Teague made similar recommendations.

Q. And can you direct your attention to page nine of this document.

A. Okay.

Q. And do you recall reading this previously?

A. Yes.

Q. Okay. I'd like to direct your attention to the first full paragraph. "It has been repeatedly stated that some scientists discount the cigarette smoke- lung cancer theory. This is true. But it should be noted that many of those quoted in this regard are on record with contrasting views." Do you see that?

A. Yes.

Q. And then he refers to some such as Berkson and Little. Do you see those?

A. Yes.

Q. And he quotes from Berkson; does he not?

A. In the next paragraph.

Q. Now in your investigation into smoking and health and cigarettes, did you learn that in 1958 the vast majority of scientists and the industry itself felt that cigarette smoking caused lung cancer?

MR. WEBER: Let me object, Your Honor, to the statement "investigation into smoking and health." Dr. Townsend did not testify about smoking and health or about an investigation on that, he talked about product development and learning about the research efforts in that regard.

THE COURT: Well he certainly testified about this document, so the document is open.

MR. WEBER: Yeah. But my objection is not the document, it's just the preface to the question.

THE COURT: All right. Okay. I think you should probably rephrase that, counsel.

BY MR. CIRESI:

Q. In your investigation, sir, into the design of cigarettes, you were looking at it from the standpoint of reducing carcinogens; correct?

A. Reducing the number of chemical constituents, including some that were thought to be carcinogenic.

*31 Q. One is benzopyrene; correct?

A. Benzopyrene was, I said, the first effort of reducing those kind of compounds.

Q. That's still in cigarettes; right?

A. At much lower levels.

Q. It's still there; correct, sir?

A. It's still present at much lower levels.

Q. But you don't know what level causes disease; do you?

A. No, I don't. I'm -- I'm not sure any scientist does, even experts in biology or toxicology.

Q. Now can you direct your attention to page 13 of this exhibit. And do you see here that there's reference to "Members of the Research Department have studied in detail the cigarette smoke composition?"

A. Yes.

Q. And you referenced this on your direct; correct?

A. Yes, I did.

Q. You said you went back and looked up to see whether or not any of these were published; correct?

A. Yes, specifically to -- what I said in direct, it was the sentence, "However, much data remain unpublished because they are concerned with carcinogenic or cocarcinogenic compounds." Then the list of references that are in parentheses after that are the references that I went back and dug out from our files at Reynolds, evaluated each of those, and found that some of them did -- were concerned with the identification of smoke constituents, some were concerned about the development of new analytical test methods, some were concerned with selective filtration additives, additives that could be put in the filter to selectively remove some of the -- some of the compounds in smoke, and then -- so --

So there were a variety of topics being discussed in this.

Q. Yeah. I'm talking about the ones concerned with carcinogenic or cocarcinogenic compounds. Do you see that?

A. Yes.

Q. Okay. Now you said you ascertained that some of those were published subsequent to this memo; correct?

A. Of those lists, after the word "carcinogenic or cocarcinogenic compounds," of that list, beginning with reference 23 all the way to 114, there were -- all of the constituents that referred to in there with the exception of cholanthrene was already published in the literature from the PAH group of compounds, and all of the phenols except eugenol and iso-eugenol were already in the literature on the phenol category. And then I said that the eugenol and iso-eugenol were already published by -- were published by Rodgman in 1964, just after this report.

Q. Two years after the report; correct?

A. This is a 1962, so that would make it two years.

Q. All right. Now the other chemicals that you said were in the literature, they weren't published by RJR, they were published by others; correct?

A. Of these specific -- these specific polycyclic aromatic hydrocarbons, they were published by others.

Q. Correct. Now --

But RJR didn't tell the consuming public that it, it had found carcinogenic substances in its products; correct?

A. The consuming public?

Q. Yes.

*32 A. No, but Reader's Digest did.

MR. CIRESI: Your Honor, I'm going to move to strike the last portion as non-responsive.

THE COURT: It is non-responsive.

THE WITNESS: I'm sorry, Your Honor.

BY MR. CIRESI:

Q. Again, doctor, if you don't understand my question, maybe you could just tell me.

A. I'm trying to understand your question.

Q. Okay. Did you -- did you hear me say anything about Reader's Digest?

MR. WEBER: Objection, Your Honor.

THE COURT: All right, counsel, let's move on.

Q. Now Dr. Rodgman goes on and states, "If a company pled 'not guilty' or 'not proven' to the charge that cigarette smoke (or one of its constituents) is an etiological factor in the causation of lung cancer or some other disease, can the company justifiably assume the position that publication of data pertaining to cigarette smoke composition or physiologic properties should be withheld because such data might adversely affect the company's economic status when the company has already implied in its plea that no such etiologic effect exists?" Do you see that?

A. I see that sentence.

Q. Now what Dr. Rodgman was talking about there was RJR's data, not somebody else who published in an obscure medical journal; isn't that right, sir?

A. That would be my take on it.

Q. Because you can only withhold publication of your own data; correct?

A. Well I think that would be my take on it.

Q. Now at this time, the evidence showing that cigarette smoking caused disease, according to Dr. Rodgman, was overwhelming; correct?

A. I'm sorry, where are you?

Q. You go to page seven.

A. Okay. I'm there.

Q. "The Evidence to Date.

"Obviously the amount of evidence accumulated to indict cigarette smoke as a -- as a health hazard is overwhelming. The evidence challenging such an indictment is scant." Do you see that?

A. I see those two sentences.

Q. Now did RJR ever make that statement right up to today, if you know?

A. My interpretation of these two sentences is that Rodgman was clearly acknowledging that the evidence in epidemiology associating cigarette smoking with lung cancer is overwhelming. There's no question about that. And yes, my company has said that.

Q. When did RJR state that the evidence is overwhelming and we knew that since 1962? When did they say that?

A. I didn't say that. I said that R. J. Reynolds has made the statement that the epidemiology is in place that -- that makes -- that makes it clear that cigarette smoking is a risk for lung cancer.

Q. That's not what I asked you. When did they state that the evidence is overwhelming?

A. Using those specific words?

Q. Yes.

A. I'm not aware of the company using those specific words. The concept has been conveyed though.

Q. Can you direct your attention to Exhibit 12667.

A. I'm there.

Q. Is this one of the ads that you were talking about?

A. Yes.

*33 Q. This is a 1984 ad; correct?

A. Yes, copyrighted 1984.

Q. And do you know where this was published?

MR. WEBER: Your Honor, I'd object to this. The whole subject of marketing, that was off limits on direct. It's beyond the scope.

THE COURT: Well I'll see what questions are asked.

BY MR. CIRESI:

Q. Do you know where this was published, sir?

A. I don't know specifically, no.

Q. If I tell you that Reynolds has advised us it was published in Better Homes and Garden, Newsweek, People, Red Book, Time, TV Guide, USA Today, U.S. News & World Report, the Wall Street Journal, the New York Times and the Washington Post, would you accept that?

A. I have no reason to doubt it.

Q. Now you stated that with regard to consumers and communications with them that you were aware of, this is one of the type of documents that you've seen; correct?

A. Yes. I also saw it when you designated it for this cross- examination.

Q. And in this, Reynolds told the United States that "Over the years you've heard so many negative reports about smoking and health, and so little to challenge these reports, that you may assume the case against smoking is closed.

"This is far from the truth.

"Studies which conclude that smoking causes disease have regularly ignored significant evidence to the contrary." Do you see that?

A. I see that.

Q. Now this is 22 years after Dr. Rodgman's internal memorandum; correct?

A. That would make it 22 years.

Q. Did Reynolds, to your knowledge, ever take out any type of ad like this and state what they knew 22 years before?

MR. WEBER: Objection, Your Honor, it's both asked and answered and argumentative.

THE COURT: You may answer if you know.

A. Are you speaking in 1962?

Q. Or in 1984.

A. You said 22 years before.

Q. What they knew 22 years before.

A. Okay. Can you re-ask the question, please?

Q. Sure.

A. I want to make sure I've got it right.

Q. Did Reynolds ever take out an ad like this in 1984 and state what they knew 22 years before as evidenced by Dr. Rodgman's memorandum?

A. If your question is did R. J. Reynolds take out an ad and explain to the public about the epidemiology, making it clear that cigarette smoking is a risk for lung cancer, I'm not aware of such an advertisement. That was already known, however.

Q. Can you turn to Exhibit 12336.

THE COURT: Counsel, we'll need to recess at this time.

MR. CIRESI: All right.

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

(Recess taken.)

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