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
3, 1998
A.M. Session
JUDGE: Hon. Judge Kenneth J. Fitzpatrick, Chief Judge
TEXT:
THE CLERK: All rise. Ramsey County District Court is again in session,
the
Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning.")
(Witness resumes the stand.)
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor.
Good morning, ladies and gentlemen.
(Collective "Good morning.")
GEOFFREY C. BIBLE called as a witness, being previously
sworn, was
examined and testified as follows:
BY MR. CIRESI:
Q. Good morning, Mr. Bible.
A. Good morning, Mr. Ciresi.
Q. Sir, when we recessed yesterday, we were talking
about Mr. Lincoln's
1958 memorandum to Mr. Millhiser, who was the vice chairman of the
company
-- or who became the vice chairman of the company, regarding Mr. Lincoln's
recommendation that benzpyrene must go. Do you remember that?
A. I recall it. Could I refer to the document again,
please?
Q. Absolutely, sir. Exhibit 10686 in volume one.
A. (Coughing) Excuse me.
Yes, I have it.
Q. And you see down there at the bottom that Mr.
Lincoln's analysis led
to the conclusion that benzpyrene must go. Do you see that?
A. Yes, I see that.
Q. Now over the course of years, Philip Morris identified
other
carcinogens in its tobacco smoke; correct?
A. I don't know that. What I have been told -- I
think I said yesterday
that it has been identified that there are animal carcinogens in cigarette
smoke.
Q. Can you direct your attention to Exhibit 10300.
It's in the same
volume, sir.
A. Yes, I have it.
Q. Now this is --
If you turn to the second page, you'll see that
the title is "PHILIP
MORRIS INCORPORATED, TOBACCO AND HEALTH-R&D APPROACH, Presentation
to R&D
Committee by Dr. H. Wakeham at meeting held in New York Office on November
15th, 1961." Do you see that?
A. Yes, I do.
MR. CIRESI: Okay. Your Honor, we'd offer Exhibit
10300.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive Exhibit 10300.
BY MR. CIRESI:
Q. Now sir, can you direct your attention to the
first page. And you
see the title there that we just read?
A. Yes.
Q. And if you go to the next page, there's a table
of contents;
correct?
A. Yes.
Q. It has various titles, "Chemistry of Tobacco
Smoke, The Cancer
Controversy, Smoking and Cardiovascular Diseases, R&D Program Leading
to a
Medically Acceptable Cigarette," and then "Summary." Do you see that?
*2 A. Yes.
Q. Can you direct your attention to the next page.
Now it's reported
there, sir, that in 1961 Philip Morris had identified 400 compounds
of
which 50 had been identified for the first time by the Philip Morris
Research Center.
A. Yes, that's what it says.
Q. Do you know if at that time Philip Morris made
any disclosure of
that information to the public?
A. No, I have no idea, sir.
Q. Has anybody ever told you that they did?
A. No, nobody has.
Q. Have you seen any documents which would indicate
that they did?
A. No, I have not, sir.
Q. Sir, can you direct your attention to the next
page. And is there
listed there composition of mainstream smoke in both the gas phase
and
particulate phase?
A. Yes, I can see that.
Q. Do you have any understanding of gas -- or cigarette
smoke, that it
is composed of both a gas phase and a particulate phase?
A. Well somewhat, but not in depth. I'm not a scientist.
But I have a
vague understanding of it.
Q. And you see under the "GAS PHASE" that there
are various chemical
compounds listed?
A. Yes, I do.
Q. And do you know if those chemical compounds are
carcinogenic?
A. Do I know that?
Q. Yes.
A. No, I don't.
Q. Can you direct your attention to the page which
has the number 430.
A. Yes.
Q. And here definitions are provided; correct?
A. Yes, that's right.
Q. And carcinoma is defined as a malignant growth
arising from the
epithelial tissue; correct?
A. That's what it says, sir, yes.
Q. And you're aware that the lung has an epithelial
lining; correct?
A. Well I'm not aware of that, but I certainly am
aware that the lung
has tissue.
Q. And you see where sarcoma is defined as a malignant
growth arising
from connective or muscle tissues?
A. Yes, I can see that.
Q. And then a carcinogen is defined as a substance,
when applied to the
tissue of a test animal, gives rise to tumor formation in tests for
carcinogens. It is assumed that tumors ultimately lead to cancerous
growths
and that a carcinogen so demonstrated in test animals is dangerous
to man.
Do you see that?
A. Yes, I read that.
Q. Now this would be an animal test; correct?
A. Yes, that's what it says.
Q. And it would be an animal test on the tissue
of the animal; correct?
A. Yes. It doesn't say exterior or internal though.
Q. But it would be on the tissues, since that's
what's described in the
definition, sir?
A. Yes, I agree.
Q. Did Philip Morris in 1963 make any disclosure
to the public that a
carcinogen demonstrated in animal tests is dangerous to man?
A. I have no idea, sir.
Q. Has anybody ever told you if they did?
A. No, nobody has.
Q. Have you seen any documents that would indicate
that they did?
A. No, I have not seen any document. I have not
gone back.
Q. Now can you direct your attention to page 434
of the same document.
A. Yes.
Q. And is there listed here a partial list of compounds
in cigarette
smoke identified as carcinogens?
*3 A. Yes. That's the title.
Q. And some of those are arsenic; correct?
A. Yes.
Q. Benzopyrene?
A. Yes.
Q. Chromium?
A. Yes.
Q. Cobalt?
A. Yes.
Q. Xylene?
A. Yes, I see that.
Q. Ethyl alcohol?
A. Yes.
Q. Are you familiar with any of these chemical compounds,
sir?
A. I'm not familiar with any of them. I've heard
the names naturally. I
think some of them probably arise in the tobacco plant itself, sir.
Q. Did Philip Morris in 1963, or for that matter
at any time, disclose
to the public that it had identified as early as 1963 this list of
carcinogens in the tobacco smoke of its cigarettes?
A. Well it might have, but I don't know.
Q. You've never seen any such document that would
reflect that; have
you, sir?
A. No, I have not.
Q. You've never seen any newspaper advertisement
about that; correct?
A. No, I have not, sir.
Q. Now can you direct your attention to page 442.
A. Yes.
Q. "REDUCTION OF CARCINOGENS IN SMOKE." Do you see
the title, sir?
A. Yes, I do.
Q. Now did Philip Morris at any point in time advise
the consuming
public that carcinogens are found in practically every class of compound
in
smoke?
A. I don't know.
Q. Did Philip Morris ever advise the public that
the fact that
carcinogens were found in practically every class of compounds in smoke
would prohibit the complete solution of the problem by eliminating
one or
two classes of compounds?
A. Could you repeat that question, please?
Q. Sure.
Did Philip Morris ever advise the public that the
fact that carcinogens
were found in practically every class of compound in smoke would prohibit
complete solution of the problem by eliminating one or two classes
of
compounds?
A. Not to my knowledge, sir.
Q. Did Philip Morris ever advise the public that
the best the public
could hope for was for Philip Morris to reduce a particularly bad class;
for example, polynuclear hydrocarbons?
A. Not to my knowledge, sir.
Q. Do you know what a polynuclear hydrocarbon is?
A. No, I don't.
Q. Do you know if benzene is included in polynuclear
hydrocarbons?
A. Is it?
Q. Do you know if it is?
A. Do I? No, I don't, sir.
Q. Did Philip Morris ever advise the public that
technology did not
permit the selective filtration of particulate smoke?
A. I don't know, sir. I know we did quite a lot
of work on filtration
to try to eliminate tar and nicotine, or reduce it, but I don't know
if we
ever said anything along those lines.
Q. Did Philip Morris ever advise the public that
flavor substances and
carcinogenic substances come from the same classes in many instances?
A. Not to my knowledge, sir.
Q. And flavorants in large degree are added to cigarette
tobacco; are
they not?
A. We use flavorants in our cigarettes, yes, that's
right. They are
lodged -- I believe all of our ingredients are lodged with the Department
of Health and Human Services each year.
*4 Q. Do you know if the flavorants include carcinogenic
compounds?
A. No, I don't know, sir.
Q. Do you know if the paper in cigarettes includes
carcinogenic
compounds?
A. No, I don't know, sir. I wouldn't have thought
so, but I don't know.
Q. And the last point here is that many pyrolysis
products have
multiple precursors in tobacco; correct?
A. That's what it says, yes.
Q. And the precursor was a precursor for cancer;
correct, sir?
A. Well I don't know. It doesn't say that.
Q. Do you know that -- what pyrolysis is?
A. Not really.
Q. You don't.
A. No.
Q. Never heard of that term?
A. I've heard the term, yes.
Q. What have you heard it referring to?
A. Well I've heard people in our research and development
department
talk about pyrolysis. I don't want to guess at it.
Q. I don't want you to guess, sir.
Now can you turn to page 443, and do you see here
that it says "THE
PRODUCTION OF POLYCYCLIC HYDROCARBONS FROM TOBACCO VERSUS CIGARETTE
PAPER?"
A. Yes, that's the heading.
Q. And polycyclic hydrocarbons were one of the most
highly
carcinogenic; correct?
A. Well I don't recall that. Could you refer me
back to that, please?
Q. I will in one minute, sir. Can you go back to
page 442, just the
previous page.
A. Uh-huh. Yes, I have that.
Q. You see it there then, polynuclear hydrocarbons?
Do you see those?
A. Polynuclear hydrocarbons, yes.
Q. Okay.
A. And what was your question?
Q. And --
A. Poly --
Q. -- you see here that this is the production of
polycyclic
hydrocarbons from tobacco versus cigarette paper, and I was asking
you
whether or not polycyclic are not one of the most highly carcinogenic.
Or
let me put it another way. A particularly bad class.
A. Well I don't know. In fact polycyclic is what
this says, and
polynuclear I think is what this says, and I don't know the difference.
Q. You don't know if they're the same or different.
A. No, I don't.
Q. All right. Well if we assume that they're the
same, they would be
one of the particularly bad classes; correct?
A. Well it's not --
MR. BLEAKLEY: Excuse me. Objection, Your Honor,
calls for speculation.
THE COURT: No, I think it's referring to the document.
You may answer.
Q. I'm just asking you to assume they're the same,
and if they are,
they would be a particularly bad class; correct?
A. Well I'm a little confused again -- and I'm not
trying to be
difficult, please believe me -- but one says polynuclear hydrocarbons,
the
other says polycyclic hydrocarbons. This in the paper here says that
polynuclear hydrocarbons appear to be carcinogenic. I don't know about
polycyclic hydrocarbons. That's all I can say.
Q. I understand. And I'm not trying to be difficult
either.
A. All right.
Q. I just ask you to assume that the two are the
same. If they --
A. Well I don't -- I don't know that I can, but
the terms are
different.
Q. Well I understand that, Mr. Bible, but I have
a right to ask you to
assume that. All right?
*5 A. I don't know.
Q. Because there are other people that will testify
in this case. You
understand that. You understand, sir?
A. No, I don't -- I-I don't -- didn't understand
that you had the right
to ask me those things, but if you do, I shall accept that.
Q. All right. If you assume that to be true, then
that is the
particularly bad class; right?
A. Well I don't know I can form that conclusion.
Q. Fair enough. You -- you just can't form that
conclusion; is that
right?
A. That's right.
Q. Now here we see that polycyclic hydrocarbons
are found in both
cigarette paper and the tobacco; correct?
A. Yes, that's my --
I think that's what this says.
Q. You didn't know that until you saw this; correct?
A. No, I didn't know that, no.
Q. And you see down there the conclusion is that
tobacco is the main
source of polynuclear hydrocarbons in cigarette smoke; correct?
A. Yes, I read that. Uh-huh.
Q. And if you go on to the next page, sir, you can
see that polycyclic
hydrocarbons come from many tobacco constituents; correct?
A. Yes. That's the heading.
Q. And you see the conclusion there, "Removal of
any single precursor
will not eliminate polycyclic hydrocarbons from smoke." Do you see
that?
A. Yes, I read that conclusion.
Q. Yes. Do you know if this information was ever
disclosed by Philip
Morris to the public?
A. No, I don't know, sir.
Q. Has anybody ever told you whether Philip Morris
disclosed this type
of information to the public?
A. No.
This is back in 1961, is it?
Q. '63, sir.
A. '63. No, I don't have any recollection of anybody
telling me that.
Q. And if you go to the last page, you see there's
a summary, sir?
A. Could you give me the number, please?
Q. Yes, absolutely. I'm sorry, it was not the last.
446.
A. Thank you, yes.
Q. Second-to-the-last page.
A. Yes. Thanks.
Q. Do you see the summary?
A. Yes, I do.
Q. And it says "A medically acceptable" --
And that's underscored; is that right?
A. Yes, it is.
Q. -- "low-carcinogen cigarette may be possible.
Its development would
require time, money," and "unfaltering determination." Correct?
A. Yes, that's what it says.
Q. Now did Philip Morris ever tell the public that
it was looking at a
medically acceptable low-carcinogen cigarette which may be possible
to be
developed?
A. I don't know if --
Are you talking about that time, then, sir, or --
Q. Yes.
A. At that time? Then I don't know, at that time.
Q. Do you know if they ever said they were attempting
to develop a
medically acceptable low-carcinogen cigarette?
A. I don't know that they've said exactly that.
I know over the last
year we have developed a product that has, I believe, made a lot of
progress in reducing very significantly many of the elements in tobacco
smoke that people are concerned about.
Q. Is that Project TABLE?
A. No, it's not Project TABLE. This is a -- it's
a cigarette that in
fact would --
*6 The tobacco is heated as opposed to burned. And
currently it is in
consumer home test. And we've spent years trying to develop this product.
And at last we have a product we can put into consumer home test, and
we're
very hopeful about it.
Q. And did that start as Project TABLE?
A. Not to my knowledge, sir.
Q. Have you ever heard the word "Project TABLE?"
A. No, I have not.
Q. All right. Now this was back in 1963, 1963, that
Dr. Wakeham said a
medically acceptable low-carcinogen cigarette may be possible, but
its
development would require time, money and unfaltering determination;
correct?
A. Yes, that's what it says.
Q. Do you know if a decision was made not to develop
that because it
might indict the present cigarettes that were on the market?
A. Oh, I have no idea. What I do know is that we
certainly spent a lot
of effort in reducing tar and nicotine and doing our very best to make
the
best product we can. In fact I believe tar and nicotine levels in
cigarettes over the last 40 or 50 years have come down by about half,
so
we've certainly worked hard at it.
Q. We've heard about that, sir. Are you aware of
the issue of
compensation?
A. Yes, I am.
Q. Are you aware of when Philip Morris knew about
compensation?
A. No, I am not.
Q. Have you ever looked -- I -- strike that.
I take it you've never looked at any documents regarding
that either.
A. No, I have not.
Q. So you don't know when Philip Morris knew that
people were
compensating with low tar and nicotine cigarettes; do you?
A. No, I don't know. I've asked my scientist about
the issue of
compensation.
Q. Now back in 1963 -- I'm going to ask the question
again - - do you
know if Philip Morris at that time undertook a project to develop a
medically acceptable low-carcinogen cigarette?
A. No, I don't know.
Q. Do you know what a medically acceptable low-carcinogen
cigarette
would be?
A. Would I know what it would be?
Q. Yes.
A. It would be pretty hard for me to describe, sir.
No, I wouldn't know
what it would be.
Q. How many carcinogens would be in a medically
acceptable
low-carcinogen cigarette?
A. I don't know.
Q. Have you ever asked anybody that?
A. No, I have not.
Q. Can you direct your attention, sir, to Exhibit
11604. Now this is a
memorandum to Mr. Cullman from Dr. Wakeham; correct?
A. Yes, it is.
Q. And this is October 24th, 1963; correct?
A. Yes.
Q. Have you seen this document before?
A. No, I have not seen this document.
Q. Now was Mr. Cullman --
What was his position in the company, Hugh Cullman?
A. I don't know what his position was then.
Q. Do you know if he was ever president of the company?
A. I don't think he ever was. When I joined the
company he was
president of Philip Morris International.
Q. And did you ever hold the position of Philip
Morris International
president?
A. Did I?
Q. Yes.
A. Yes.
Q. Now this is a technical forecast; correct?
*7 A. Well I --
Yes. That's what the subject is, yes, you're right.
Q. And you see up in the upper left-hand corner
it's personal and
confidential?
A. Yes.
Q. And Dr. Wakeham here is reporting to Mr. Cullman
pursuant to Mr.
Cullman's request for a technical forecast outlining the areas where
the
cigarette industry might be most subject to criticism; correct?
A. Well that's the beginning of the letter, yes.
Q. And he wanted to -- suggestions as to how those
elements in smoke
which might be most accused by either the medical profession or exploited
by our competitors; is that right?
A. Do you mind if I just read it?
Q. Sure. Go right ahead, sir.
A. Yes.
Q. And in this memorandum, Dr. Wakeham is providing
Mr. Cullman with
the considered judgment of the research and development department;
correct?
A. Well I'll read the --
MR. BLEAKLEY: Objection. Objection, Your Honor,
the witness has just
seen this document. If he's going to ask him to summarize it, at the
very
least the witness should be allowed to read the entire document.
THE COURT: Was this document identified?
MR. CIRESI: Yes, Your Honor.
THE COURT: All right. Do you -- do you --
Would you like to read the entire document?
THE WITNESS: Well if I'm going to be asked questions
about it, Your
Honor, I'd like to.
THE COURT: Okay. Well that's why we give notice
to the witnesses. We'll
sit and wait while you read the entire document.
THE WITNESS: Well thank you.
MR. CIRESI: Might I suggest, Your Honor, if I may
--
BY MR. CIRESI:
Q. Mr. Bible, just to save time, as we go through
it, if you need to
take a look at another part of it, please tell me.
A. All right.
Q. Because I want you to have an opportunity to
look at all of it --
A. Thank you.
Q. -- if that's what you need to do, but I'm going
to try to go through
it bit by bit so we'll put it in context. All right?
A. Thank you.
Q. I'm just dealing with the first paragraph there.
And does Dr.
Wakeham say he will present here our considered judgment in this matter?
A. Yes.
Q. Now Dr. Wakeham was the head of research and
development at Philip
Morris; correct?
A. I believe so, but I don't know at what time he
was.
Q. All right. Now Dr. Wakeham here refers to the
health critics;
correct?
A. Yes.
Q. And there are three main lines of attack; correct?
A. Yes.
Q. Okay. Now do you believe it appropriate for Philip
Morris at any
point in time to consider public health officials to be health critics?
A. No, I don't. I don't know if that's who he's
referring to, but --
That probably is who he is referring to, and I don't
think that's
appropriate. But I don't think he meant it in a mean fashion.
Q. No more than you meant it in a mean fashion in
your 1994 report when
you talked about how you were going to defend the company and what
you were
going to do with regard to defending the company; right? You didn't
mean
that in a mean fashion.
*8 A. Of course I didn't, sir.
Q. No. And you know what I'm referring to.
A. You're referring to my letter to shareholders
in the annual report.
Q. Yes.
A. Yes.
Q. You didn't mean that in a mean fashion; did you?
A. No, I don't believe I did mean it in a mean fashion.
Q. When you were talking about the FDA, you didn't
mean that in a mean
fashion; did you?
A. No.
Q. When you said you were going on the offensive
to vindicate your
rights and to make it clear that the current notions of political
correctness cannot be used to justify unlawful conduct that abridges
those
rights, you didn't mean that in a mean fashion; did you?
A. No, I didn't think I was being mean. I was being
objective.
Q. And when you said that in the legal area we are
committing all the
resources necessary to defend the company from new forms of litigation,
making sure we have better firepower than our foes no matter how
formidable, you didn't mean that in a mean fashion?
A. No, I certainly meant it in the most objective
fashion I could
muster, yes.
Q. Yes. And you meant it on a going-forward basis;
didn't you? You were
looking forward, as you said yesterday; weren't you? You weren't talking
about the past.
A. Sir, I'm looking forward all the time now, as
I expressed yesterday.
Q. And when you made that comment yesterday, Mr.
Bible -- or in this
letter in 1995, February 24th, you were looking forward; weren't you?
A. Yes, I expressed that yesterday, and I still
am, and I'm working
very hard to resolve the issues around this industry and company.
Q. And you said we're going to have better firepower
than our foes, no
matter how formidable; correct, sir?
A. Absolutely.
Q. And you said in the new class action suits and
state Medicaid, we
believe the law continues to be on our side. Although these cases pose
difficult challenges, we should ultimately prevail in them, just as
we have
been successful in other types of cases over the last 40 years. Correct?
A. Yes.
Q. And you were talking about going forward; weren't
you, sir?
A. Yes, I was.
Q. You were looking forward at that time; weren't
you, sir?
A. Yes, I was.
Q. And --
A. And I -- and I still am.
Q. And you said it's important to note here that
the tobacco company
has never lost or paid to settle a case; correct?
A. Well I don't have it in front of me, but that
sounds familiar.
Q. And when you said that, you were talking about
going forward;
weren't you?
A. Well certainly. Couldn't be going backwards,
sir.
Q. And you were -- I agree with you. And you were
going to fight those
cases with all the resources that you could bring to bear; isn't that
right, sir?
A. Yes.
Q. And in fact, you called a bunch of analysts in
and you said we shall
fight and fight and fight these issues; didn't you?
A. I don't recall calling a bunch of analysts in.
Q. You remember the time you had a meeting in the
Grand Hyatt ballroom
in New York?
*9 A. Yes, I do.
Q. And you had the Magnificent Seven on a 12-foot
screen, do you
remember that?
A. No, I don't remember that.
But let me correct what you described it as. That
was an invitation to
Philip Morris to attend an investment analysts' seminar where many
companies presented their companies to investment analysts.
Q. And you --
A. So I --
Q. And you presented yours.
MR. BLEAKLEY: Objection, Your Honor, the witness
was in the middle of
his answer.
THE COURT: Allow him to finish his answer, please.
MR. CIRESI: I'm sorry, didn't --
A. And we were one of many companies and we presented
our company to
those analysts at that time.
Q. And when you presented your company, you said
you were going to
fight, fight and fight these issues; correct?
A. Well I don't know if I said that or not, sir,
but it sounds
familiar.
Q. Yes. And there was a 12-foot screen and you put
up the Magnificent
Seven commercial and blasted it out over the whole audience; didn't
you?
A. I don't recall that, sir.
Q. Have no recollection of that, sir?
A. No, I don't.
Q. You don't deny that took place; do you?
A. I -- I don't recall it, sir.
MR. BLEAKLEY: Objection, Your Honor, the witness
doesn't recall it.
Whether he denies it is not relevant.
THE COURT: No, it's relevant.
Q. Do you deny it, sir?
A. No, I neither affirm nor deny it. I don't remember.
Q. Okay. Do you remember there was an article about
it in the Wall
Street Journal?
A. No. There are many newspaper articles in the
Wall Street Journal.
Q. I'll grant you that, sir.
MR. CIRESI: May I approach, Your Honor?
(Document to witness.)
BY MR. CIRESI:
Q. I just want to refresh your recollection of this,
sir; I'm not
asking to enter it into evidence. It's a Wall Street Journal -- copy
of the
Wall Street Journal article dated March 30th, 1995. Do you see that?
A. Yes, I do.
Q. And it relates to this meeting that took place
in October of 1995 --
or excuse me, in February of 1995?
A. Well it's dated Monday, October 30, 1995. I don't
see February.
Q. Wasn't it at the end of February you had this
meeting?
A. Oh, I have no idea.
Q. Well let me see if I can refresh your recollection.
Do you recall
after the meeting that the stock value of the company went up two billion
dollars and it was called the two-billion- dollar day?
A. No, I don't remember that either.
Q. Maybe --
A. It's certainly possible, but I don't remember
it.
Q. Why don't you take a look at the second page,
and if you look at the
left-hand column, sir, third paragraph from the bottom, do you see
that
you're quoted there, "We shall fight, fight and fight these issues?"
A. Well yes, I -- I recall that. Yes, I see that.
Q. And this was at the Grand Hyatt ballroom?
A. That's what it says, yes.
Q. And it said, "I can assure you we will fight
with all the resources
at our command because I am convinced we are right?"
*10 A. Yes, it says that.
Q. And one of the things you personally think you're
right about is
that smoking doesn't cause any disease; is that correct?
A. No, I have said that I think cigarette smoking
is a significant risk
factor in many diseases.
Q. Does that mean it causes disease? You just said
"no" to my answer.
A. I've said that it is a risk factor and a significant
risk factor --
Q. Does that mean --
A. -- in many diseases.
Q. -- it causes disease?
A. I don't know, sir.
Q. Well was one of the things you personally think
you're right about
is that smoking doesn't cause any disease?
A. I don't know. I've said that publicly.
Q. So you didn't know if you were right about that
or not; is that
right?
A. I'm not sure what you're referring to. Could
you --
Q. Whether smoking causes disease.
A. Are you asking me that question?
Q. Yes. You don't know if you're right or not; is
that right?
A. I don't know if I'm right. It might cause disease.
I don't know.
Q. All right. Now at this analysts meeting, do you
see there where the
playing of the Magnificent Seven is referenced?
A. Yes, I do see that.
Q. Does that refresh your recollection, sir?
A. Well it doesn't. But I don't deny that's what
it says, and I -- I
expect we did show it.
Q. And in fact didn't you have some part in the
planning of that? You
wanted to make a big show with the analysts; didn't you?
A. I'm quite involved in those sorts of presentations,
yes, I am, and
I'm very proud of our company and I like to put forward the best foot
that
we can, and I make sure that the operating companies present themselves
as
best they can when we make presentations to analysts. Yes, you're right.
Q. You actually put your management team through
the paces and graded
them; didn't you?
A. I don't recall that.
Q. Well, can you look to the paragraph right above
that. "Executives
who didn't pump up the volume got a drubbing from the new boss." That's
you; isn't it?
A. Well I was the new boss, but they certainly didn't
getting a
drubbing from the new boss, I can promise you that.
Q. Well in February of 1995, did you assemble your
top executives in
New York for a run-through of their presentation of Philip Morris's
aggressive new face to the Wall Street and the media?
A. Well I -- I -- I don't remember, but it's highly
likely I would have
because I take a big interest in those. And I don't know that I would
have
been defining it as Philip Morris's aggressive new face. I --
Q. Well you know that you'd been defined as the
aggressive new face
back in 1994; weren't you?
A. I don't know that.
Q. You never read that?
A. Well I may have, but I don't remember it if I
was. I'm often called
many things.
Q. I understand, sir.
Let me ask you this: Having in mind now that you
are that involved and
that you get involved with your executives, does this refresh your
recollection that you had them in for a run-through of their presentation?
*11 A. Well I don't remember that, but it's highly
likely that I did.
I'm not denying that I did, sir.
Q. And it's reported that you graded the executives
after each one
spoke and you let loose some withering criticism and graded all of
them in
front of everybody else. Is that what you did?
A. I would say that's absolutely wrong.
Q. You didn't do that; is that right?
A. I would never do that.
Q. You wouldn't.
A. No.
Q. Did you have your publicist of this 68-billion-dollar
company call
the Wall Street Journal or write to them and say that's flat-out false,
I
never did that?
A. No, I didn't. I could spend the rest of my life,
I think, if I
wanted to try to correct everything that was said in the newspapers
about
me and the company.
Q. And Murray Bring was the company's top legal
strategist; was he not?
A. Murray Bring would have been the chief general
counsel of the
company.
Q. And he's quoted here; isn't he?
A. Could you direct me to that, please?
Q. Same paragraph.
A. Uh-huh.
Q. And it's --
And he said, "The message was we could do a hell
of a lot better."
Correct?
A. That's what it says.
Q. And is that the message you gave all those executives
after you
graded them?
A. Well I might well have said you could do better.
I could believe I
would say that.
Q. You can't believe, though, that you would have
said we can do a hell
of a lot better; is that right?
A. Well I'm -- I may have. I doubt it though, I
-- just as I doubt I
would have let loose withering criticism. That's not my style.
Q. But you don't deny that the words in the 1994
annual report about
going on the offensive and defending your company are your words; do
you,
sir?
A. Well could you direct me to that again, please,
sir?
Q. Absolutely. Exhibit 17624.
MR. BLEAKLEY: May we have a page number, please?
A. Yes, I have it. That's the 19 -- hmm.
THE COURT: Counsel, can you give him the page number,
please.
MR. CIRESI: 1994 annual report.
THE WITNESS: Yes, right.
MR. CIRESI: And it's the -- I don't have actual
pages --
Well it's page four, lower left-hand corner.
Q. It's the one we've been looking at, sir, your
-- your letter to the
shareholders.
A. Oh, right. Thank you. Got it.
So could you direct me to the --
Q. Certainly. "Defending our Company."
A. Uh-huh.
Q. Right at the bottom where "We are going on the
offensive to
vindicate our rights." Do you see that?
A. Yes.
Q. Okay. And this is the letter that you wrote to
the shareholders on
February 24th, 1995.
A. That's correct, yes.
Q. There's no dispute about that; is there, sir?
A. No, I'm not disputing that. I just wanted to
see that's indeed what
it said.
Q. And did you write the letter or was it written
for you?
A. It would have been a combination of people who
help draft these
letters and myself.
Q. Does that mean that somebody wrote it for you
and then you edited
it?
*12 A. No, it would have been both. We would have
participated
together, probably.
Q. And these are your words and you adopt them as
such; don't you?
A. These are my words I would have thought, yes.
Q. And they were intended to be the words on behalf
of the corporation;
correct, sir?
A. Yes, that is right, to -- to the stockholders.
Q. And in this letter, this is the one where you
said that our one all-
consuming ambition was to create wealth for the owners; correct?
A. Well I --
Could you point me to that, please, sir?
Q. Certainly.
A. I don't doubt saying that.
Q. Page two. Just go back two pages. "Growing our
Business." Right at
the very top.
A. Uh-huh.
Q. "Our one all-consuming ambition" --
A. Right. Yes, I remember that yesterday.
Q. Okay. Now --
And this is in 1995 when you were saying that; isn't
that right?
A. Yes.
Q. Okay. Right after you took over, about six --
six or seven months
after.
A. Well six months after I took over as CEO and
a month after I became
chairman, yes.
Q. And so now if we can't just go back 34 years
-- or excuse me, 32
years, back to document 11604 --
And Mr. Bible, before you do that, let -- let me
ask you this: You
understand that the purpose of this lawsuit is to look at Philip Morris's
conduct over a long period of time. Do you understand that?
MR. BLEAKLEY: Objection, Your Honor, that's an inappropriate
--
improper question. The purpose of this lawsuit is not a proper question
to
ask this witness.
THE COURT: Sustained.
Q. Do you know if in this lawsuit we're looking
at Philip Morris's
conduct over a long period of time?
A. Well I got that impression from yesterday's interrogation.
Q. And in order to look at its conduct over that
period of time, we
must look at what they knew, when they knew it, and what they did with
that
information. You would agree with that?
A. Well --
MR. BLEAKLEY: Objection, Your Honor, whether they
must or not is also a
legal question and not within the competence of this witness.
THE COURT: No, I think you can answer that.
A. Well I would describe that as being your prerogative,
if that's how
you feel it should be done, certainly.
Q. Well you would feel that if someone was going
to look at someone's
conduct over a period of time, they would look at what they knew, when
they
knew it, and what they did with the information.
A. Well that doesn't seem unreasonable to me, no.
Q. Okay. Seems like a reasonable way to approach
it; doesn't it?
A. Well it's one way to approach it, yes. Not unreasonable,
as I said.
Q. Now let's look back 32 years, before your words
in the annual report
and what you said at that analysts' meeting, to see what was being
said by
Philip Morris then. All right?
A. Uh-huh.
Q. Can you take a look, then, back to Exhibit 11604,
the memo from Dr.
Wakeham to Mr. Hugh Cullman.
Now in 1994 and 1995, one of the objects of your
attack or offensive
was the FDA; correct?
*13 A. In nineteen ninety --
Q. Five.
A. -- five? When I say -- you say "attack," I would
define it
differently. We were defending ourselves against a number of matters
at
that time. The FDA had proposed regulation. I think there had been
a lot of
television coverage where we'd been maligned by a television article.
I
believe there were congressional hearings at the time. So there was
-- and
there were mounting legal actions against the company. So there were
many
things that were developing around the company. That's why I was consumed
by all this activity and wanted to find some solution going forward.
So my
sense, if I were asked to define it, would be how can I defend the
company
as best as I can and find a solution to these growing issues.
Q. Sir, my question was pretty simple: One of the
objects of your
offensive was the FDA; correct?
A. Which offensive, sir?
Q. The offensive to defend your company.
A. Well I would say it was the defense of my company,
and I wouldn't
describe it as an offensive, sir.
Q. I thought you said, "We are going on the offensive
to vindicate our
rights." Those are your words, not mine.
A. Well if they were my words, the idea there was
that we were going to
go on the offensive to defend the company, sir.
Q. All right. Well I'll do it that way.
One of the objects of your offensive to defend the
company was the FDA;
correct?
A. Yes, that's correct. We did not believe the FDA
had jurisdiction
over the tobacco industry. That's Congress's right.
Q. And you felt that because you didn't want them
to regulate nicotine.
A. No, I don't think that would be a fair characterization
of it.
Q. Well we'll get to that a little bit later and
take a look at those
documents.
Directing your attention to Exhibit 11604, here
Dr. Wakeham's talking
about the health critics who may follow three main lines of attack;
right?
A. Yes.
Q. "Chemical carcinogenesis of the lungs by smoke
constituents;"
correct?
A. Yes.
Q. Now we know that Philip Morris as of this date
had already
identified smoke constituents that were carcinogenic; correct?
A. Well yes, that's -- I think so.
Q. And the second attack was "Irritation from smoke
components leading
to chronic bronchitis and emphysema;" correct?
A. Yes, that's what it says.
Q. And then the third was "Cardiovascular effects
due mainly to
nicotine in the smoke." Correct?
A. Yes, that's what it says.
Q. Now I understand you have not had the opportunity
to read this
entire document yet, but if you take a look at it -- and please take
time
to look at it -- would you agree with me that in the next part of the
memorandum under number one, Dr. Wakeham reports about the fact that
rather
than there being a super carcinogenic substance, the experts were now
looking to the cocarcinogen issue in which there were several types
of
minor carcinogenic compounds in smoke that reinforce one another?
A. Well I didn't get that, but if I'm --
*14 I think you jumped around a bit.
Q. Well just please -- please read the next two
paragraphs - - and
they're right up there; anybody can read them -- and see if that isn't
a
fair summary of what he reports there.
MR. BLEAKLEY: Objection to Mr. Ciresi's commentary
on the document,
Your Honor.
THE COURT: Just ask a question, please.
Q. Please take a look at those two paragraphs and
see if that isn't a
fair summary of those two paragraphs.
A. Well if I read it, I shall then ask you if you
could give your
summary again, please.
Q. I will.
A. Thank you.
I find it very difficult to summarize. I'd like
to hear yours.
Q. My summary was that rather than there being one
super carcinogen,
people were now looking to cocarcinogens which, combined together,
were
sufficient to account for cancer.
A. Well I think what it says is, as I read this,
although no one
compound is present in sufficient quantities to account for the effect,
the
combined activity of all is enough to do the trick, and I don't see
reference to a super carcinogen.
Q. All right. Well that's what I meant by one carcinogen
itself. And in
fact, Dr. Wakeham at -- in this document, the next page, reports that
the
-- what he refers to as the medical attack on cigarettes will be based
on
the cocarcinogen idea, and that with hundreds of carbon -- hundreds
of
compounds in smoke, this hypothesis will be hard to contest. Do you
see
that?
A. Yes, that's what it says.
Q. And by the notion that the hundreds of compounds
in smoke that may
be carcinogenic, that's consistent with the previous documents we saw
of
Philip Morris which identified many carcinogens in smoke; correct?
A. Could you repeat the question? You mentioned
hundreds of --
Q. It's talking about hundreds of compounds. That's
consistent with the
previous documents of Philip Morris that we just reviewed this morning
--
A. Yes.
Q. -- that showed carcinogens in smoke; right?
A. Yes, that's right.
Q. And Philip Morris had knowledge of that for a
number of years prior
to 1963; correct?
A. That there were carcinogens in smoke?
Q. Yes. And many carcinogens and hundreds of compounds;
correct?
A. Prior -- prior to when, sir?
Q. Prior to October 24th, 1963.
A. Well I don't know. What was the date of the letter
we looked at
earlier?
Q. Well we saw one in 1961, for example. That's
two years before;
correct?
A. The one you just referred to, I'm sorry.
Q. 1961, sir.
A. Thank you.
Q. Two years before; correct?
A. Yes.
Q. Is that --
A. Two years before, yes.
Q. All right. Now Dr. Wakeham then goes on to talk
about the
polynuclear hydrocarbons. Do you recall seeing those in that previous
memo?
A. Yes, I do.
Q. And he talks about nitrosamines. Do you see that?
A. Yes.
Q. And you know nitrosamines are highly carcinogenic;
don't you?
A. I don't know if they're highly carcinogenic.
I've heard that they
are carcinogenic. I believe there is some debate over it, but I believe
they're carcinogenic from what I hear in many --
*15 Q. And Dr. Wakeham reports here that the lower
nitrosamines are
highly carcinogenic in the bioassay tests; correct?
A. I can't find that.
Q. Right under "Nitrosamines," the very last sentence.
A. The very last sentence says, "It is apparent
that interest in
nitrosamines is increasing." Is that the one you're referring to?
Q. I'm starting the first paragraph. Do you see
it there, sir?
A. "The lower nitrosamines are highly carcinogenic
in the bioassay
tests," is that what you cite?
Q. Yes.
A. Yes.
Q. And Dr. Wakeham reports that these substances
have been under
investigation since early in the year, and that indications of their
presence, particularly the higher members, have been found; correct?
A. We have found indications, yes, it says that.
Q. And he says the lower members have not been found,
but the elements
for their formation are present in smoke; correct?
A. That's what it says, yes.
Q. Then he goes on to talk about carbamates or urethanes,
which are
highly carcinogenic, particularly to lung tissue; correct?
A. That's what it says, yes.
Q. And do you know if that was one of the compounds
that we saw in the
earlier memo in 1961?
A. Do I remember? I don't remember that, no.
Q. And he talks about terpenes; correct?
A. Talks about which, sir?
Q. Yes. Terpenes, t-e-r-p-e-n-e-s. Do you see that?
A. Oh, yes. The next paragraph.
Q. Yes.
A. Thank you.
Q. And he references there that some members of
that family are present
in smoke; correct?
A. Yes, he does.
Q. And if you go on to the next page, sir, he deals
with bronchitis and
emphysema; correct?
A. (Coughing) Excuse me.
Yes.
Q. And he talks about the fact that these are serious
diseases
involving millions of people; correct?
A. Yes. That is said, yes.
Q. And that emphysema is often fatal either directly
or through other
respiratory complications; correct, sir?
A. It says that, yes.
Q. And he stated that a number of experts have predicted
that the
cigarette industry ultimately may be in greater trouble in this area
than
the lung cancer field; correct?
A. That -- that's what it says, yes.
Q. And do you know how many cases of chronic obstructive
pulmonary
disease, including bronchitis and emphysema, have been reported extensively
in the medical literature to be caused by cigarette smoking?
A. No, I don't.
Q. And he talks also about other types of compounds
that are in the
cigarette that could cause irritation which would lead to bronchitis
and
emphysema; doesn't he?
A. Where does it say that, please?
Q. "As you know, we have investigated this subject
in some depth and
have made good progress in developing improved products along this
line.
Irritating effects are probably due to a variety of substances including
ammonia, volatile acids, aldehydes, ketones, amines and phenols." Do
you
see that?
A. Yes, I do.
Q. And all of those are present in cigarette smoke;
aren't they, sir?
*16 A. Well I don't know, sir.
Q. All right. Do you know if Philip Morris ammoniates
its cigarettes?
A. I know that Philip Morris uses ammonia compounds
in cigarettes, yes.
Q. You've testified about that in front of Congress;
haven't you, sir?
A. I did, yes.
Q. And it also talks here about cardiovascular effects;
doesn't it?
A. Yes, it does.
Q. And it talks about nicotine in that regard; doesn't
it?
A. Yes, it does.
Q. And it says, "If forced to, we could produce
a fairly tasty low
nicotine product." Correct?
A. It says that, yes.
Q. This was in 1963; correct, sir?
A. Yes.
Q. Now in 1963 Philip Morris didn't feel compelled
to produce a fairly
tasty low nicotine product; did it?
A. Well I don't know.
Q. Okay. It didn't produce one at that time; did
it?
A. Well I don't know.
Q. Now Philip Morris also had knowledge of whether
or not smoking
caused pregnant women to have smaller children; correct?
A. Could you repeat the question, please?
MR. CIRESI: Yes. Would you read the question back,
please.
(Record read by the court
reporter.)
A. I have no knowledge of that, sir.
Q. Can you direct your attention to Exhibit 10270.
A. Yes, I have it.
Q. This is a memorandum to Dr. Wakeham from Dr.
Fagan dated January
3rd, 1969?
A. Yes.
MR. CIRESI: We'd offer it, Your Honor.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 10270.
BY MR. CIRESI:
Q. This is called "Smoking in Pregnancy: A Prospective
Study Done in
Britain;" correct?
A. Yes.
Q. This was reported in the British Journal; correct?
A. It appears to be, yes.
Q. Now you'll see that in the first two paragraphs,
sir, the
methodology of the study is detailed. Do you see that?
A. Well I'll need to read it, if -- if I may.
Q. Yes.
A. Thank you.
Yes, that's right.
Q. Then starting in paragraph three, an analysis
of the findings is
provided; correct?
A. Yes. It says "Analysis of results shows the following."
Q. Okay. And one was that mothers who smoke had
a lower blood pressure
than mothers who didn't smoke; correct?
A. That's what it says, yes.
Q. And mothers who smoke had a higher percentage
of unsuccessful
pregnancies, abortions, stillbirth, and neonatal deaths taken together?
A. That's what it says, yes.
Q. Did Philip Morris warn anybody of those consequences
in 1969?
A. Not to my knowledge, sir. I think there's a health
warning on the
cigarette packs that were mandated by Congress.
Q. And when was that, sir?
A. Well I think it was 1969.
Q. For children?
A. I'm not sure.
Q. Pregnant women?
A. I'm not sure when the pregnant women health warning
was introduced.
Q. Philip Morris, for example, never took out ads
in the Wall Street
Journal, New York Times, Minneapolis Tribune, St. Paul Pioneer Press,
across the nation, advising consumers of this; did they?
A. Not to my knowledge, no.
Q. They've never done that to this day; have they?
*17 A. Not to my knowledge.
Q. And in subparagraph three -- or c) of paragraph
three, do you see
that it is reported by Dr. Fagan to Dr. Wakeham that the study took
into
consideration many factors such as maternal age, paternal age,
socioeconomic status, educational level, maternal weight -- height,
parity,
et cetera, the non-smoking mother has a heavier baby than the mother
who
smokes, do you see that?
A. Yes, I see that.
Q. Now all of those factors, do you know if they're
called confounding
variables in an epidemiological study?
A. I don't know. I would say that they are certainly
variables.
Q. And starting at the bottom on e), it's reported
as follows by Dr.
Fagan to Dr. Wakeham, "Babies born to smoking mothers grow faster and
put
on weight faster than babies born to non-smoking mothers. By the end
of the
first year, the babies seem to be similar in weight and growth. The
lower
birth weight of babies born to smoking mothers is attributable to the
toxic
effects of smoke, particularly the carbon monoxide." Do you see that?
A. Yes, that's what it says.
Q. And then if you go down to paragraph five --
A. Uh-huh.
Q. -- there is reported by Dr. Fagan to Dr. Wakeham
studies which
looked at the effects of prematurity on child development. Do you see
that?
A. Yes, I do.
Q. And those studies pointed to the effects of cigarette
smoking in the
production of premature infants as defined by birth weight; correct?
A. Yes, that's what it says.
Q. And these reporters attributed that to the effect
of the lower
nourishment of the fetus through one of two mechanisms; correct?
A. That's what it says, yes.
Q. One was the effect of nicotine in constricting
the uterine blood
vessels and hence cutting down on the blood supply available to the
fetus;
correct?
A. Yes.
Q. And the other was to the effect of smoking in
reducing the appetite
of mother -- of the mother, and hence the supply of nutrients, particularly
proteins, to the fetus; correct?
A. Yes, that's what it says.
Q. And it was found that the premature babies are
more likely in later
life to have physiological and psycological problems; correct?
A. That's what it says here.
Q. And those physiological problems and psycological
problems could
include depression, mental disease; couldn't they?
A. Where does it say that, sir?
Q. Could they? I'm just asking you.
A. Oh. Well I don't know.
Q. Could run the whole gamut of physical and mental
problems; couldn't
it, sir?
A. I don't --
Q. As far as you know.
A. Well I don't know what they mean when they say
that, sir.
Q. And do you see in the last paragraph, "All of
the investigations of
this type that smoking mothers have babies of lower birth weight than
non-smoking mothers, and that these lower weight babies are more likely
to
experience problems later in life. Whether the mechanism is that of
a
'slight poison' as suggested by Russell or whether the mechanism is
through
the reduced appetite of the mother is yet to be decided." Do you see
that?
*18 A. Yes, I do see that.
Q. Now was any of this ever reported by Philip Morris
to the public, to
the consumers?
A. I don't know, sir.
Q. Since you have been CEO, you've never ordered
that told to the
consumers by taking out ads; have you?
A. No, I have not by taking out ads. I was once
asked a question in an
annual general meeting as to whether pregnant mothers should smoke,
and I
said I thought it would be sensible if they didn't smoke.
Q. You did.
A. Yes, I did.
Q. Well then why didn't you tell your PR department,
"Let's get this
out. Let's use part of this 6.9 billion in cash flow and take out ads
across the country to get the word out to the consumers," why didn't
you do
that?
A. Sir, there is a health warning on cigarette packs
today that warn
pregnant women not to smoke.
Q. But why didn't the company do it?
A. You know, I wonder if anybody in America believes
cigarette
companies when we say something like that, sir.
Q. Sir, yesterday you said that you would -- there
would be a bigger
impact if the company itself admitted these things.
A. Well I've now concluded that if we were to say
something like that
publicly, people wouldn't believe us.
Q. Do you think maybe, just maybe, Mr. Bible, the
reason they wouldn't
believe you is that you folks stand alone against the entire world
medical
community and say smoking doesn't cause disease? Do you think that's
possible?
A. I don't know, sir.
Q. You have no idea.
A. It might be. It might be.
Q. It's probable; isn't it, sir?
A. It's possible, sir.
Q. If people don't tell the truth, then when they
try to tell the
truth, somebody looks a little askance at it; don't they?
MR. BLEAKLEY: This is becoming argumentative.
THE COURT: It's becoming argumentative.
MR. CIRESI: I'll withdraw that question, Your Honor.
Q. Can you direct your attention, sir --
THE COURT: Counsel. Maybe we should 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. CIRESI: Thank you, Your Honor.
BY MR. CIRESI:
Q. Mr. Bible, can you direct your attention to volume
one, Exhibit
10270. You'll recall that's the document we just discussed; correct?
A. Yes.
Q. And that was dated January 3rd, 1969; correct?
A. Yes. Yes, that's correct.
Q. And it was to Dr. Wakeham by Dr. Fagan; correct?
A. Or Mr. Fagan. I don't know if he was a doctor
or not.
Q. Can you direct your attention now to the exhibit
directly before
that, sir, which will be Exhibit 10269.
A. Yes.
Q. And do you see that's a document from Dr. Wakeham
to Mr. Goldsmith?
A. Yes.
Q. And it's January 10th, 1969, or seven days later.
Do you see that?
A. Yes, I do see that.
MR. CIRESI: Your Honor, we would offer Exhibit 10269.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 10269.
*19 BY MR. CIRESI:
Q. Now Mr. Goldsmith was the president of the company?
A. At that time do you mean?
Q. Yes.
A. I don't know if he was president at that time.
He was president at
some time, but I think it may have been later than that.
Q. He also was vice chairman; correct?
A. I think he was.
Q. Now here he is sending -- or receiving a memo
from Dr. Wakeham
regarding smoking and baby weight; correct?
A. Yes, that's right.
Q. And Dr. Wakeham reports to Mr. Goldsmith that
we now have a study of
the effect of smoking and pregnancy which supports previous conclusions
that smoking mothers produce smaller babies; correct?
A. That's what it says, yes.
Q. And he reports that the position of the medical
people is that
smaller babies suffer detrimental effects all through life; correct?
A. Yes.
Q. In other words, they have a diminished health
status; correct?
A. I beg your pardon?
Q. They have a diminished health status is what
he's reporting.
A. Suffer detrimental effects all through life.
Q. That would be diminished health status; right?
A. That's not what it says, but one could interpret
it to mean that I
guess.
Q. Yes. And he points out that, for example, in
identical twins, the
smaller one at birth has lower intelligence scores at age 10; correct?
A. That's what it says.
Q. And the assumption, of course, is that both twins
have similar
heredities and environments; correct?
A. That's what it says.
Q. And he then says that Dr. Fagan's summary of
the studies is
attached; correct?
A. Yes.
Q. Now do you know if Philip Morris had an opportunity
subsequent to
this to tell the American people about this study or about these studies?
A. Did we have an opportunity?
Q. Yes.
A. Well I guess we did have an opportunity.
Q. Okay. Do you know if there were any specific
opportunities to
specifically address this issue of mothers who smoke?
A. I don't know of any special forum that was created.
Q. Do you recall yesterday when we talked about
Mr. Cullman's Face the
Nation appearance on January 3rd, 1971?
A. Actually vaguely. I'm sorry to say that.
Q. Can you turn your attention to Exhibit 10492.
A. Yes.
Q. And that's the Face the Nation broadcast on January
3rd, --
A. The transcript.
Q. -- 1971. The transcript of it.
A. Right. That's right, yes.
Q. And the guest was Joseph Cullman III, chairman
of the board, Philip
Morris; right?
A. That's right, yes.
Q. And that's the same Joseph Cullman that sits
in on board meetings
now; correct?
A. That's right.
Q. Can you direct your attention, sir, to page --
and I'm referring to
the Bates numbers -- Bates 560. That's the last three numbers.
A. Yes, I have it.
Q. And you did notice, did you not, on the front
page, that one of the
reporters at this interview on Face the Nation was Morton Mintz?
A. Yes, I see his name. Uh-huh.
Q. Now I'd like to read a series of questions and
answers and ask you
some questions. Okay? If you'd direct your attention to the bottom.
*20 "MINTZ: Well, in view of the fact that you haven't
-- they haven't
been proved to be safe, what is the justification you would offer for
spending -- according to one estimate I've seen -- three billion in
the
last 20 years to promote their use when there is that uncertainty,
when we
have an excess deaths of 200 to 300 thousand a year, when there is
all this
evidence, which you don't feel is conclusive -- what is the reason
for
promoting its use when it might cause cancer, heart disease and so
forth?
"MR. CULLMAN: Well, I'd have to answer it this way,
Mr. Mintz. There
are a great many people in the United States and all over the world
who
enjoy smoking, who find it satisfies a very important need. We think
those
people are entitled to the best possible product we can produce. That
is
essentially our job."
Do you see that?
A. Yes, I do.
Q. Do you agree with that even today?
A. I think it's a fair characterization of how I
feel. I believe that
cigarettes are a legal product, I believe that people are very much
aware
of the risks associated with it, and I believe in those circumstances
we
should produce the best possible product we can.
Q. Okay. So you agree with in 1998 what Mr. Mintz
-- or excuse me, Mr.
Cullman said in 1971; correct? Fair statement?
A. I just said what I said, yes.
Q. Okay. Now Mr. Mintz goes on, "Now embryos don't
have much choice;
fetuses don't. They don't like to smoke. The British Medical Research
Council did a study of all the 17,000 babies born in a single week
in the
United Kingdom, as you doubtless know. The Council found that those
babies
born to mothers who smoked during pregnancy were in significantly higher
proportion small, weighing under five and a half pounds approximately,
than
the babies born to mothers who did not smoke, and there was a higher
rate
of stillbirths and of deaths within 28 days of birth. My question is,
in
view of this study, which is the largest and most elaborate of its
kind
ever made, is it right to promote smoking among women with Virginia
Slims
and the other brands especially marketed for them with no warning as
to the
danger to the embryo that may exist?"
Now this was in 1971; correct?
A. Yes.
Q. Two years after the memos --
A. (Coughing) Excuse me.
Q. That's all right. Do you want some water, sir?
A. Thank you.
Q. Two years after the memos that we saw, the internal
memos; correct?
A. Yes.
Q. And Mr. Cullman states, "Well, you are reading
that question because
it is a complicated question.
"MR. MINTZ: Yes, it is.
"MR. CULLMAN: I would say that I did read that report,
and I concluded
from that report that it's true that babies born from women who smoke
are
smaller, but they are just as healthy as the babies born to women who
do
not smoke. Some would prefer -- some women would prefer having smaller
babies." Do you see that?
A. Yes, I do.
Q. And -- and do you agree with that statement today
in 1998?
A. Well no, I wouldn't agree with it. I wouldn't
say that today, sir.
*21 Q. And then Mr. Mintz said, "What about the
higher rate of death?
"MR. CULLMAN. I'm not familiar with that."
Do you see that?
A. Yes, I do.
Q. Now the higher rate of death was in the memos
we just saw from Dr.
Wakeham.
A. Could you refer me back to that again, please?
Q. Yes. If you'd like to go back to 10269, sir.
A. Yes, I have it.
Q. And why don't you go to the next one, 10270.
That might help a
little bit more. Under 3.b).
A. Uh-huh.
Q. "Mothers who smoke have a higher percentage of
unsuccessful
pregnancies (abortion, still-birth, and neonatal deaths taken
together)."
Do you see that?
A. Yes, I do.
Q. And that is a higher rate of death; correct?
A. I think that's a fair characterization of death,
yes.
Q. And Mr. Fagan reported that to Dr. Wakeham; correct?
A. Yes, that's right.
Q. And Dr. Wakeham then reported that to Mr. Goldsmith;
correct?
A. Yes, that's right.
Q. And when Mr. Cullman was on a national broadcast,
he just said I'm
not familiar with that; correct?
A. "What about the higher rate of death?" Mr. Mintz
said.
Q. And what did Mr. Cullman say?
A. He said, "I'm not familiar with that." But the
only question I'd ask
is, is he talking about the higher rate of death of unborn children?
I
presume he is. That's what I'm --
Q. It would be fair to assume that based on the
context.
A. I think that's fair, yes.
Q. Now, you said that the government required a
warning; correct?
A. Yes.
Q. The government didn't require a warning until
1985; isn't that
right, sir?
A. I'm not sure of the exact date, sir.
Q. Let me hand you what has been marked as Exhibit
3824, which is the
1994 Surgeon General's report.
MR. CIRESI: And Your Honor, we'd offer Exhibit 3824.
MR. BLEAKLEY: I'm sorry, what was that? That was
the Surgeon General's
report?
MR. CIRESI: Yes.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 3824.
MR. CIRESI: May I approach, Your Honor?
THE COURT: Yes.
(Document handed to the
witness.)
BY MR. CIRESI:
Q. Sir, I've opened it to page 264, and satisfy
yourself by looking at
the cover that it is the Surgeon General's report.
A. Yes, I have no doubt about it. I was just looking
for the date,
that's all.
Q. Now do you see on page 264 it shows various warnings
and when they
came into effect?
A. Yes, I do.
Q. And these are warnings that are required by the
government to put
on; correct?
A. That is right. By --
Q. Okay.
A. I think Congress determines it.
Q. And Philip Morris never put on any warning until
it was required by
the government; correct?
A. That is right, sir, yes.
Q. And in 1985 was when the Surgeon General's warning:
Smoking by
pregnant women may result in fetal injury, premature death and low
birth
weight; correct?
A. Premature birth and low birth weight.
Q. Yes. And that is 16 years after Philip Morris
had knowledge of this;
correct, sir?
*22 A. From the date of that letter, yes.
Q. At least 16 years; correct?
A. Well 16 years.
Q. Now would you agree, Mr. Bible, that if a person
is addicted to
something, that her ability to exercise her free will is certainly
limited?
A. Yes. It would be impaired, I would say.
Q. Be significantly impaired; wouldn't it?
A. It -- it would depend upon the level of addiction,
it would seem to
me, sir.
Q. So it could run a spectrum of limitation; is
that right?
A. I would have thought so, yes.
Q. And you can't predict where an individual person
may fall in that
spectrum; correct?
A. I think that's a fair comment. I think most people
-- most people
are different, so we're all affected somewhat differently.
Q. And would you agree that if people are addicted
to cigarettes, that
your company couldn't very well defend the cases by saying people had
a
free choice?
A. Could you give me that question again, please?
Q. Sure.
Would you agree that if people are addicted to cigarettes,
then your
company couldn't very well defend cases by saying people had a free
choice?
A. I find that a bit difficult to answer. I'm not
a lawyer, but I would
say that your choice is limited if you are addicted to something. I'd
understand that certainly.
Q. Can you go to Exhibit 140 -- 14303, and that's
in volume two. This
is a document that's already in evidence, sir. It is a Tobacco Institute
document, and it's from Mr. Knopick, who is a Tobacco Institute employee,
to Mr. Kloepfer, who's a senior vice- president for public relations.
Do
you see that?
A. Well I see the names. I -- it doesn't say Tobacco
Institute, but
I'll accept that you're correct.
Q. It was produced in this litigation by The Tobacco
Institute, and if
you look at the bottom, you'll see a Bates number that is TIMN.
A. Yes, I see that.
Q. Okay. And the subject of this is the National
Institute of Drug
Abuse wanted "addictive" added to the cigarette warning. Do you see
that?
Very first paragraph.
A. Yes, I do see that.
Q. And if you would direct your attention to the
next page where Mr.
Knopick is reporting, "I feel badly about my own lack of
intelligence-gathering in this situation. But I don't think the questions
I
now raise are academic. Shook, Hardy reminds us" --
Do you know who Shook, Hardy is?
A. They're a law firm.
Q. They represent the tobacco industry; correct?
A. Well they represent Philip Morris, I know that.
Q. Okay. And they've represented Philip Morris for
a long time;
correct, sir?
A. I don't know how long.
Q. Okay. "Shook, Hardy reminds us, I'm told, that
the entire matter of
addiction is the most potent weapon a prosecuting attorney can have
in a
lung cancer/cigarette case. We can't defend continued smoking as 'free
choice' if the person was 'addicted."' Do you see that?
A. Yes, I do see that.
Q. Okay. And Shook, Hardy gave that advice to your
company?
A. Well I don't know.
*23 Q. You've never seen this document before?
A. No, I've never seen this document.
Q. Now do you know, sir, that nicotine is a poison?
A. I think I would say I would know that. It would
depend upon the
quantity.
Q. Okay. And you know that in sufficient doses it's
fatal?
A. I would accept that.
Q. And do you know it's a physiologically active
substance?
A. I don't know that.
Q. Do you know if it's similar to cocaine, atropine
and morphine?
A. Do I know that it is?
Q. Yes.
A. No, I would disagree that it is.
Q. You would disagree with that.
A. Yes.
Q. You've never been told that.
A. Never been told what, sir?
Q. That it is similar to cocaine, atropine and morphine.
A. I think I've read that.
Q. Where did you read that?
A. I think I read that in the Surgeon General's
report.
Q. Okay. Can you direct your attention to Exhibit
11559 in volume one.
A. 559?
Q. Yes.
A. Okay.
Q. 11559.
A. Good. I have it.
Q. Do you have it, sir?
A. Yes, I do.
Q. And you see that this is a confidential memorandum,
it's entitled
"TABLE."
A. Yes.
Q. Now I asked you previously about TABLE. Do you
remember that?
A. You asked me previously -- excuse me.
Q. About TABLE, Project TABLE.
A. Oh, yes. Yes.
Q. And I think you said you weren't familiar with
it; is that right?
A. I've not heard that name, no.
Q. You haven't. Okay.
A. No.
Q. Now this is --
The title of this is "TABLE;" correct?
A. Yes.
Q. It says "Competitive Analysis, Organization,"
and "Production."
Correct?
A. Yes.
Q. And --
A. It says "Production - to follow." All right.
Q. And the name is B. Reuter. Do you know who Mr.
Reuter is?
A. Yes, I do know Barbara Reuter.
Q. And who is Barbara Reuter?
A. She's an employee at Philip Morris.
Q. What is her position?
A. I'm not sure of her position today. My recollection
of her was in
the planning department.
Q. Planning department.
A. That was my recollection of her, yes.
Q. And you do not know what position she has today?
A. No, I don't.
Q. Okay.
A. She works for Philip Morris domestic cigarette
operations.
Q. Can you --
There's no date on the front of this document; is
there, sir?
A. No.
Q. Can you direct your attention to page four.
A. Yes.
Q. And I'm using the number at the bottom, not the
Bates number.
A. Yes, I have page four.
Q. Need some more water?
A. I think I'm all right. Thanks.
Q. Now do you see here it says "Source: TMA Estimates
(10/05/92)?"
A. No, I don't see that.
Oh, yes, I do. Thank you.
Q. Right under "Grand Total."
A. Yes, I've got it.
Q. Okay. Would it be fair to assume, sir, that the
date of this
memorandum is at least sometime after October 5th of 1992?
A. I think that's a fair assumption, yes.
Q. All right. Now can you turn back to -- and excuse
me. Strike that.
*24 Do you know that this is a Philip Morris document?
A. Do I know that it is?
Q. Yes.
A. Well I would assume that it is because Barbara
Reuter's name is on
it. But I don't know if it is.
Q. I will represent to you that it is a Philip Morris
document produced
in this litigation. Did you provide this to Congress?
A. Did I provide this to Congress?
Q. Yes.
A. No, I have no -- I have no --
Well I have no recollection of providing it.
Q. Now if you go to page 665, the Bates number --
turn back -- it
starts with the words "COMPETITIVE ANALYSIS" and it's the second page
of
the document.
A. Uh-huh.
Q. Now I'd like to direct your attention to the
second paragraph.
A. Uh-huh.
Q. "Different people smoke cigarettes for different
reasons. But, the
primary reason is to deliver nicotine into their bodies." Do you see
that?
A. Yes, I do.
Q. Do you agree with that?
A. Do I agree with that? No, I don't think so.
Q. You don't. Okay.
A. No.
Q. "Nicotine is an alkaloid derived from the tobacco
plant." Do you see
that?
A. Yes, I do.
Q. And do you agree with that?
A. Well nicotine certainly comes from the tobacco
plant, yes.
Q. Do you know if it's an alkaloid?
A. I think I do. I'm not quite sure what an alkaloid
is.
Q. Okay. Then it states, "It is a physiologically
active nitrogen
containing substance." Do you see that?
A. Yes, I do.
Q. Do you degree with that?
A. I wouldn't have a clue frankly.
Q. You don't know.
A. No, I don't know.
Q. "Similar organic chemicals include nicotine,
quinine, cocaine,
atropine and morphine." Do you see that?
A. Yes, I do.
Q. Do you agree with that?
A. I would have no idea.
Q. This is a Philip Morris document where that's
reported; correct?
A. Yes, it's correct. It seems to me to be written
by somebody who, to
the best of my knowledge, never worked in our R&D department and
has no
scientific background, to the best of my knowledge.
Q. Is she a provocateur?
A. What do you mean by that, sir?
Q. Same thing Mr. Morgan meant yesterday in his
deposition that we saw.
And you witnessed it.
A. You mean does she attempt to provoke thought,
stimulate ideas?
Q. Is she a provocateur?
A. I have no idea.
Q. You don't.
Do you have any reason to believe she was lying
in this document?
A. No, I have no reason to believe she was lying.
Q. Do you know her to be an honest person?
A. I expect she is very honest.
Q. Do you know her to be a responsible person?
A. I do.
Q. Do you know her to do her job responsibly?
A. I do. But I don't know what her job was when
she wrote this, but I
certainly don't believe she's qualified to say these things because
I don't
believe she's a scientist.
Q. You just don't agree with it; correct?
A. I beg your pardon?
Q. You don't agree with it; correct?
A. Agree with what?
Q. The last statement, "Similar organic compounds
include nicotine,
quinine, cocaine, atropine and morphine."
*25 A. No, I think what I said is I don't know.
Q. You don't know.
A. Hmm.
Q. "While each of these substances can be used to
affect human
physiology, nicotine has a particularly broad range of influence."
Do you
agree with that?
A. I have no idea.
Q. Did you tell Congress that when you testified?
A. Tell them what, sir?
Q. What I just read.
A. Why should I have told Congress that?
Q. You were testifying on addiction in front of
Congress; weren't you?
A. I was asked questions about that, yes.
Q. "During the smoking act, nicotine is inhaled
into the lungs in
smoke, enters the bloodstream and travels to the brain in about eight
to 10
seconds." Do you agree with that?
A. Do I agree with that?
Q. Yes.
A. I have no idea.
Q. Never talked to Dr. Ellis about that?
A. I did --
I have asked her some questions, but I never asked
her that particular
question.
Q. Did you ever ask her about the forms of nicotine
and how fast they
can get to the brain?
A. No, I have not. I have asked her about ammonia,
and in the course of
that she talked a little bit about the form of nicotine. But beyond
that,
I've never asked her that question.
Q. Did she tell you at that time that nicotine with
a higher pH gets to
the brain faster?
A. No, she never told me that at all.
Q. Did you ask her?
A. Yes, I did. And what she told me was, if I remember
correctly, was
that ammonia -- sorry, nicotine absorbed through the mouth enters the
brain
more slowly than it does when absorbed through the lung. That's my
memory
of what she told me.
Q. Nicotine absorbed through the mouth enters the
brain more slowly
than when absorbed through the lung; correct?
A. That's what I remember her telling me, yes.
Q. Is that all she told you?
A. On what subject, sir?
Q. On that subject, sir.
A. Which subject?
Q. The subject of how fast nicotine gets to the
brain.
A. Yes, I think that's all she told me.
Q. Did she tell you anything else about the form
of nicotine and it
getting into the bloodstream?
A. I think in the course of that conversation she
told me that --
Could you rephrase the question, please, or repeat
the question?
Q. Of course.
Did she tell you anything about -- else about the
form of nicotine and
how fast it gets to the brain or into the bloodstream?
A. No, I don't recall that, no.
Q. All right. Do you recall anything else that she
told you in that
conversation you had?
A. On what subject, sir?
Q. On the subject of nicotine getting into the blood
system and getting
to the brain.
A. No, I don't recall more else. I think what she
told me I talked to
Congress about, and that was the totality of what our conversation
was.
Q. Well, you were preparing to testify to Congress
--
A. Uh-huh.
Q. -- when you talked to her; correct?
A. I had talked to her before, and then I talked
to her again during
that time, yes.
Q. You wanted her to give you all the information
regarding what you
were going to testify to Congress about; correct?
*26 A. Certainly to the best of what I expected
I would be asked. I
wanted to feel that I could answer questions honestly.
Q. You wanted to be honest and truthful and complete
with Congress;
didn't you?
A. Absolutely.
Q. You understood you had an obligation to do that;
didn't you, sir?
A. Yes. I testified under oath.
Q. Now you're aware that the FDA has found that
the cigarette is a
nicotine-delivery device; correct?
A. The FDA has described it as such, yes, I believe
that's true.
Q. And that the FDA, after looking at recently released
documents and
medical information -- and by "documents" I mean cigarette industry
documents -- came to the conclusion that cigarettes are intended by
the
manufacturer to affect the structure and function of the human body.
You're
aware of that; aren't you, sir?
A. I am aware of that, yes.
Q. And it was based in part on the recently released
documents that the
FDA had; correct?
A. I'm not aware of that, sir.
Q. Do you have your deposition up there, sir? Do
you have your
deposition up there?
A. Where, sir?
Q. It may be to your right.
A. Oh, I see.
Q. The deposition is --
You may not have it, sir. Excuse me.
MR. CIRESI: Your Honor, may I approach?
THE COURT: Yes.
(Document handed to the
witness.)
BY MR. CIRESI:
Q. Let me hand you a copy of your deposition, sir.
A. Thank you.
Q. And you recall giving a deposition on August
21st, 1997, in Palm
Beach, Florida?
A. Yes, I do.
Q. And this was in the Medicaid action brought by
the state of Florida?
A. Yes, that's right.
Q. You were under oath at the time?
A. Yes.
Q. And the FDA, sir, had determined that nicotine
was a drug-delivery
device after 1994; correct?
A. I think that's right, yes.
Q. And you know that this lawsuit here in Minnesota
was brought in
August of 1994; don't you?
A. Well no, I didn't know that, but I'm not going
to argue.
Q. You know that substantial numbers of documents
have been produced in
this case; correct?
A. Yes, I'm aware of that.
Q. You know that they were under protective order
so they could not be
disclosed to various people. Do you know that?
A. They're under the protective order of the court?
Q. Yes.
A. Yes.
Q. And do you know that your attorneys designated
the documents
confidential to be covered by the protective order?
A. I believe that's right.
Q. In fact, you've recently released all those documents
on the
Internet system; haven't you?
A. That's right.
Q. That was last Friday; correct?
A. That's right.
Q. And you did that as part of a commitment that
you made to Congress
on January 29th of this year; correct?
A. That's right.
Q. Now the FDA, sir, after 1994, got access to thousands
of pages of
internal company documents; didn't they?
A. Well I'm not sure, but I know they got access
to a lot of documents.
Q. And that's what they based in part their finding
on; isn't that
right?
*27 A. Well I'm not sure.
Q. All right. Can you turn your attention to page
45 of the deposition
that was taken of you last August 21st.
A. Uh-huh. Yes, I have it.
Q. And I want to direct your attention to that page
45 starting at line
four.
A. Uh-huh.
Q. "Question: Mr. -- Mr. Bible, just as a general
question, you are
familiar, of course, with this big, thick document -- I'm not suggesting
that you've read every page.
"Answer: I can guess what it is.
"Question: It's the rule making of the Food and
Drug Administration,
finding that cigarettes are nicotine delivery devices. You're generally
--
you're aware generally they made such a thing as that?
"Answer: I am.
"And I've placed before you Exhibit 7-A, which is
the executive
summary, and I'd ask you, please, sir, kindly turn to page X. Are you
aware
that the Food and Drug Administration, after a considerable period
of
taking testimony, concluded that, quote, There is an emergence of a
scientific consensus that cigarettes and smokeless tobacco cause addiction
to nicotine and the disclosure of thousands of pages of internal tobacco
company documents detailing that these products are intended by the
manufacturers to affect the structure and function of the human body.
This
new evidence justifies the agency's determination that cigarettes and
smokeless tobacco are delivery systems for the drug nicotine.'
"Now, my question to you, sir, is, are you broadly
aware that they made
that finding?
"Answer: I am."
Is that correct?
A. That's correct, yes.
Q. Now that was just seven months ago; correct?
Roughly.
A. Six months ago.
Q. Now when you testified in Congress, you called
nicotine as having a
mild pharmacological effect, and that it was behaviorally but not
pharmacologically addictive; is that right?
A. I think that's what I said, yes.
Q. And you quoted from a company document in reading
that; correct?
A. Yes. We'd made a document we submitted to Congress,
and it's public.
Q. And who did you rely on in making the statement
that it was
behaviorally but not pharmacologically addictive?
A. My chief scientist.
Q. Is that Dr. Ellis?
A. Yes, that's Dr. Ellis.
Q. Okay. And what is the difference between pharmacologically
addictive
and behaviorally addictive, if you know?
A. Well I'm not a scientist, let me first start
out by saying that, but
I believe that pharmacologically addictive to me would, for example,
include an objective marker such as intoxication, for example. Behaviorally
addictive, say, I would identify that or define that as a habit where
you
repeat something frequently.
Q. Pharmacologically to you means intoxication?
A. I think that's one very important marker which
to me would be
important to the definition.
Q. Do you know what the word "pharmacological" means?
A. No, I don't. I've not looked it up in the dictionary.
Q. Never.
A. No, I haven't actually.
Q. Do you know if it means a drug effect?
*28 A. I would have thought that's probably what
it means, yes. I
wouldn't doubt that if somebody told me that's what it says.
Q. And the drug affects a person physiologically;
correct?
A. Yes, it --
Physiological is a word I've never really fully
understood, but if you
could tell me what you mean by that.
Q. Well how about if it alters the state of the
smoker by becoming a
neurotransmitter?
A. My goodness, that's something I'm not familiar
with, sir.
Q. How about if it affected the brain by that neurotransmitter,
are you
aware of that?
A. Well perhaps I could be guessing now a little,
I don't like to
guess, but perhaps that's what Dr. Ellis meant when she told me it
was
mildly pharmacological.
Q. Oh. So it would have a pharmacological effect.
A. I said it had mild pharmacological effects. I
think I said that in
Congress.
Q. Can you take a look at Exhibit 11559. Same document
we were on, sir.
That's the --
A. Okay.
Q. That's the TABLE document. Very same page.
A. Yes, I have it.
Q. Okay?
A. Uh-huh.
Q. Now remember, I was reading to you that it travels
to the brain in
about eight to 10 seconds?
A. Yes.
Can you just point me to that again, please?
Q. Sure. Third paragraph.
A. Uh-huh.
Q. First sentence. See it?
A. Yes, I have it.
Q. Second sentence, "The nicotine alters the state
of the smoker by
becoming a neurotransmitter and a stimulant. Nicotine mimics the body's
most important neurotransmitter, acetylcholine (ACH), which controls
heart
rate and message sending within the brain. The nicotine is used to
change
psycological states leading to enhanced mental performance and relaxation."
Do you see that?
A. Yes, I do.
Q. Were you ever told that by Dr. Ellis?
A. No, I don't think I was told that, no.
Q. And do you see there that neurotransmitters are
referred to?
Correct?
A. Yes, there is --
That word is there, you're right.
Q. Did you consider those to be pharmacological
effects?
A. Which, sir?
Q. The effect on neurotransmitters affecting the
body's most important
neurotransmitter, ACH.
A. You know, I don't know.
Q. You don't know.
A. I don't know. I am not a scientist, sir.
Q. Do you think that's a mild pharmacological effect?
A. Sir, I would not know. I don't know what a neurotransmitter
is, and
I don't know what acetylcholine is.
Q. If -- does --
Do drugs sedate people?
A. I believe they do, yes.
Q. Is that a pharmacological effect?
A. Well I'd have thought that's a fair indication.
But again, I'm a
layman and I'd just be guessing at it.
Q. Would you call it mild?
A. Depends upon the drug.
Q. Okay. And --
A. For example, I've just taken some Sudafed, and
I think that's mild.
I presume that's a drug.
Q. Okay. Direct your attention, then, to the same
paragraph, little bit
further down, "A little nicotine seems to stimulate, while a lot sedates
a
person. A smoker learns to control delivery of nicotine through the
smoking
technique to create the desired mood state." Do you see that?
*29 A. Yes, I do.
Q. Sounds like a drug-delivery device; doesn't it,
sir?
A. Doesn't to me.
Q. It doesn't to you?
A. No, it doesn't to me, because I'm a smoker. That's
not how I view
the cigarette.
Q. You don't view the cigarette that way.
A. No, I don't.
Q. Now did Dr. Ellis, before you testified in Congress,
tell you that
you can alter the form of nicotine to speed its delivery to the brain?
A. No, she never told me that, I don't think, no.
Q. Did she tell you that could be done through ammonia?
A. No, she didn't tell me that at all.
Q. Can you direct your attention to Exhibit 11751.
A. In fact, if I could just mention that I think
she told me the
reverse, in fact, which I just mentioned back to you, that in fact
nicotine
absorbed through the mouth reaches the brain more slowly than through
the
lung. I think that's what I was told.
Q. I'm talking about, sir --
I understand that. Did she tell you, though, that
altering the form of
it from acid to base would speed its passage to the brain?
A. You've got me there. She didn't say that to me.
I don't know what
"acid to base" means, sir.
Q. Did she tell you the opposite of that?
A. I don't know, sir. I wouldn't know how the opposite
would be
described.
Q. Can you direct your attention to Exhibit 11751,
please.
A. Yes, I have that.
Q. Now that's a letter to Dr. Ellis; correct?
A. Yes.
Q. And it's dated November 15th, 1994; correct?
A. Yes, that's right.
Q. And it's from Cologne, the INBIFO Contract Research
organization
owned by Philip Morris?
A. Yes, that's correct.
Q. And sir, if you'd direct your attention to the
last page, do you see
that there's an enclosure which is an appendix of two pages? It's
referenced there.
A. No, I don't see it, sir.
Q. Right at the very bottom under Mr. Reininghaus's
signature,
"Enclosure: Appendix, 2 pages."
A. Oh, I see, it's written. I don't see any appendix,
I see words
saying that. Sorry.
Q. All right. And if you go to the next exhibit
--
A. Yes.
Q. -- and you'll notice the next Bates number produced
by your company,
Philip Morris, Exhibit 11751, ended with the Bates number 912; didn't
it?
A. Yes, that's right.
Q. And the next exhibit then is Exhibit 11752, at
the top it says
"APPENDIX;" correct?
A. Yes. It says "APPENDIX 1" in fact.
Q. Correct. And the Bates number there is 913; correct?
A. Yes, that's correct.
Q. Okay. I want you to assume that this is the appendix
that was
attached to Exhibit 11751. All right?
A. Yes, I -- I can assume that.
Q. All right. Now, we see the date here is November
15th, 1994;
correct?
A. Yes.
Q. And I want to set the scene a little bit, sir.
A. Uh-huh.
Q. Congressional hearings had taken place in Congress;
correct?
A. That year in 1994? Yes, I think it was April
'94.
Q. And every one of the chief executive officers
of the tobacco
companies stood up and swore under oath that nicotine was not addictive;
correct?
*30 A. That's my memory of what happened, yes.
Q. Philip Morris's CEO did that, correct?
A. That's my memory. And also he had the issue explained
by these
scientists.
Q. And the Waxman hearings had disclosed documents
that had never
before been disclosed; correct?
A. I don't recall that, sir. I won't dispute it,
but I don't recall
that.
Q. And the FDA started investigating; correct?
A. The FDA, I think, had started prior to that.
I remember Dr. Kessler
making some report, I think, in February '94, not long before I became
CEO.
And --
Q. So --
A. -- I think the congressional hearings were in
April '94, so yes, he
started his inquiry.
Q. So at that time there were FDA proceedings going
on to look to
regulate cigarettes as a drug; correct?
A. That's right, yes.
Q. We had the congressional hearings; correct?
A. Yes.
Q. The chief executive officers testified that nicotine
was not
addictive; correct?
A. That's correct, sir, yes.
Q. And between 1994 and 1998, there were no definitional
changes in the
medical literature regarding addiction; were there?
A. Not to my knowledge, sir.
Q. And Philip Morris started investigating between
1994 and 1998 in
order to react to whether or not the form of nicotine had been deliberately
changed to hasten its journey to the brain; correct?
A. I don't know about that, sir.
Q. Let's take a look at Dr. Ellis's information.
Now you see that this
is a letter to her of about four pages.
A. Uh-huh. Yes.
Q. And signed by Mr. Reininghaus; correct?
A. That's right, yes.
Q. Do you know who he is?
A. Yes. I believe he runs INBIFO, the Research Institute.
Q. Okay. And Ms. Ellis is the director of research
at Philip Morris at
that time; correct?
A. I think that's right. Yes, she's addressed as
such, yes.
Q. And still is today; correct?
A. I think she's senior vice-president. I've just
forgotten her exact
title.
Q. She's still head of research?
A. No. I think that the activities have been divided.
I'm just not
quite sure of the exact organization structure now. But she's a senior
scientist at the organization.
Q. Now in this memorandum Mr. Reininghaus sets forth
the uptake of
nicotine by smokers; correct?
A. Yes.
Q. And he talks about it as being a complex process;
correct?
A. He says that, yes.
Q. And he talks about the parameters which are expected
to influence
the bio -- bioavailability of nicotine; correct?
A. He says that, yes.
Q. And do you know that the bioavailability means
its availability in
the blood system?
A. No, I don't know that.
Q. You assume that to be a fair statement?
A. Well I'll accept it as a fair statement.
Q. And he talks, then, about those parameters. One
is smoke production;
correct?
A. Yes.
Q. The nicotine concentration in the smoke; right?
A. Yes.
Q. Particle size?
A. Yes.
Q. Nicotine phase distribution?
A. Yes.
Q. Do you know what that is?
*31 A. No, I don't.
Q. He talks about nicotine deposition and diffusion;
correct?
A. Yes.
Q. Talks about two points under there, particle
impaction and gas phase
diffusional transport in the upper respiratory tract; correct?
A. Yes, correct.
Q. That would be the mouth; correct?
A. I would have thought the upper respiratory tract
would have been
here (gesturing towards throat area) where I would have thought.
Q. Okay. You don't know if it includes the mouth
or not.
A. I don't know, sir, no.
Q. All right. And then he talks about that nicotine
transport in the
lower respiratory tract; correct?
A. Yes, he does.
Q. And then he talks about nicotine uptake; correct?
A. Yes.
Q. And on the next page he talks about overall pharmacokinetics;
correct?
A. Yes.
Q. Do you know if that refers to the speed by which
nicotine is taken
into the blood system?
A. No, I -- I wouldn't have a clue, sir.
Q. Okay. Now if you turn over to page three of this,
--
A. Yes.
Q. -- and do you see he says here, "Due to the selective
membrane
permeability only unprotonized nicotine can freely penetrate the mucosa
or
the bronchial alveolar lining."
A. Yes, I read that.
Q. All right. Now do you know what the bronchial
alveolar lining is?
A. No, I don't.
Q. If I tell you it's the lining of the lung, would
you accept that?
A. Well you're not a scientist, I presume, but it
sounds reasonable.
Q. I'll grant you I'm not a scientist, sir.
Did you discuss that at all with Dr. Ellis before
you testified in
front of Congress?
A. Discuss which, sir?
Q. The bronchial alveolar lining.
A. No, I did not.
Q. Did you discuss the transfer of nicotine through
the bronchial
alveolar lining or through the lung membrane at the time you testified?
A. No, I didn't discuss that particular aspect,
no.
Q. Now you see down right below -- or above number
four --
A. Yes.
Q. -- it says, "However, an influence of smoke pH
on nicotine kinetics
in the lower respiratory tract cannot be excluded: pH-enhanced gas
diffusion of nicotine to the mucosa might increase its uptake rate."
Do you
see that?
A. Yes, I do.
Q. Now if we go on, then, sir, to Exhibit 11752.
A. Uh-huh.
Q. This is the appendix. You remember that?
A. Yes. We presume it's the appendix. I think that's
fair.
Q. "The Effects of Cigarette Smoke 'pH' on Nicotine
Delivery and
Subjective Evaluations." Do you see that?
A. Yes.
Q. Now I want to represent to you, sir, that delivery
is the amount of
nicotine, not the form. Will you accept that? Are you with me?
A. Well I don't really -- I don't really know the
distinction between
the two, frankly.
Q. That's --
Well we're going to see if -- if you do or don't.
A. Okay.
Q. I'd just like you to assume that the delivery
is different than the
form of the nicotine. All right?
A. Well I'll try, yes.
Q. All right. And you didn't have any discussion
about that with Dr.
Ellis?
*32 A. About what, sir?
Q. About the form versus delivery of nicotine itself.
A. It wouldn't occur to me. I don't even know what
it means, as I said
to you.
Q. Well you knew you were going to testify in Congress
about whether or
not you were manipulating nicotine to increase the addictive nature
of
cigarettes; weren't you?
A. I didn't know that.
Q. You didn't --
A. No.
Q. -- at the time you testified?
A. I didn't know what I was going to be testifying
about in Congress,
sir. They generally asked me the questions.
Q. Well that was one of the subject matters that
you knew you were
going to be asked about; wasn't it?
A. Well I thought I might be asked about it.
Q. Okay. And that was whether or not Philip Morris
was manipulating
nicotine through ammoniation to increase its speed to the brain; correct?
A. I thought that I would be asked a question as
to why we used ammonia
in our products.
Q. Okay. Now I'd like to start in the second paragraph.
And if you want
to read the first paragraph, please do so, sir.
A. Well thank you.
Q. Are you ready?
A. Well not quite. Could you just bear with me,
please?
Q. Oh, I will.
A. Yes. Little hard for me to understand, I have
to tell you that.
However, I've read it.
Q. Complex area; correct?
A. I beg your pardon?
Q. Complex area.
A. Well that, I guess, is why I'm not a scientist.
Q. And how many smokers do you think are scientists?
A. I don't know, sir.
Q. Would you agree with me it would be fair to assume
that the
overwhelming majority are not scientists?
A. I think that's probably a fair --
You know, a majority of the citizens of the world
are not scientist, so
I think that's fair.
Q. And would you agree with me that the overwhelming
majority do not
have scientists at their disposal to explain complex chemical matters?
A. Yes, I would agree with that.
Q. Now in paragraph two we see it's reported as
follows: "The argument
that bases" --
Now do you know if ammonia is a base?
A. I don't know what a base is, sir.
Q. All right. I'd like you to assume that ammonia
is a base. It's been
so testified here. Can you assume that?
A. You know, honestly I don't know what a base is
to assume that. I
know a base in baseball, but that's about the only base I do know of.
Q. We're not talking about baseball, sir.
A. I know we aren't, sir, but I don't know what
a base is.
Q. We're talking --
With all due respect, Mr. Bible, we're talking about
matters of life
and death. We're not talking about baseball. Do you understand that,
sir?
A. Sir, I was trying to explain to you I don't understand
what "bases"
mean.
Q. And I ask you to assume that a base is ammonia.
Can you do that?
A. I'll try, yes.
Q. Thank you.
"The argument that bases are added to increase the
nicotine delivery
above normal levels" -- nicotine delivery above normal levels -- "is
entirely specious." Do you see that?
*33 A. Yes, I see that.
Q. All right. Now that's the delivery, the amount
of nicotine; do you
know that? If you don't, just tell me you don't know.
A. I would --
No, I think that's fair. To -- to increase the nicotine
delivery would
be to increase the amount of nicotine. I think that's a fair assumption.
Q. All right. "The same amount of nicotine is delivered
whether the
smoke is acidic, basic, or neutral." Do you see that?