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
6, 1998
A.M. Session
JUDGE: Hon. Judge Kenneth J. Fitzpatrick, Chief Judge
THE CLERK: All rise. Ramsey County District Court is again in session,
the
Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor.
Good morning, ladies and gentlemen.
(Collective "Good morning.")
ANDREW J. SCHINDLER called as a witness, being previously
sworn, was
examined and testified as follows:
BY MR. CIRESI:
Q. Good morning, Mr. Schindler.
A. Good morning.
Q. Sir, can you direct your attention to Exhibit
14303, which would be
in volume two. It's toward the front, sir.
A. Yes.
Q. Now sir, you would agree that if smokers are
addicted, that their
free choice would be impaired; correct?
A. If they were. But I don't believe they're addicted.
I believe they
have free choice to start smoking, and I believe they have free choice
to
quit smoking.
Q. And direct your attention to Exhibit 14303, which
is a memorandum to
Mr. Kloepfer from Mr. Knopick of The Tobacco Institute. Have you seen
this
document before?
A. I don't believe I've seen this particular document.
Q. It's dated September 9th, 1980; correct?
A. Yes, sir.
Q. And you'll see in the first paragraph that Mr.
Knopick is attaching
a technical review of the conference of the National Institute of Drug
Abuse, which wanted "addictive" attached -- added to the cigarette
warning.
Do you see that?
A. Yes, I do.
Q. Do you know who Shook, Hardy is?
A. They're a law firm.
Q. Represents the tobacco industry?
A. Yes. I believe -- I believe they represent Philip
Morris.
Q. And have they represented RJR in the past?
A. Not to my knowledge.
Q. Have they represented the Tobacco Institute?
A. I do not know for sure. I do not have specific
knowledge that they
did.
Q. Okay. You do know that The Tobacco Institute
is supported in part by
RJR.
A. Of course.
Q. Okay. Can you turn to the second page, sir. I'd
like to direct your
attention to the sentence starting "Shook, Hardy...." Do you see that?
A. Yes, sir.
Q. "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?
*2 A. Yes, I do.
Q. And you do know that the internal memoranda of
RJR that we reviewed
yesterday dealt with the pharmacological, addictive nature of nicotine;
do
you not?
A. We had a lot of documents yesterday. I recall,
I guess, some of them
-- or one of them talking about pharmacological effect. I don't recall
"pharmacological addictive effect."
Q. Do you recall that it was part of the Teague
memo talking about the
industry being a specialized segment of the pharmaceutical industry?
A. I recall Dr. Teague's personal opinion and theory.
Q. Do you remember Dr. DiMarco's memorandum?
A. Are you talking about one to Dr. DiMarco?
Q. Yes.
A. I remember there was a document yesterday to
Dr. DiMarco.
Q. Do you remember the McKenzie document, Exhibit
12270?
A. Well I -- I remember a document that had John
McKenzie's name on it,
yes.
Q. Do you remember the REST memo?
A. Yes, I remember the REST memo.
Q. Now yesterday you said you couldn't recall what
your superior, Mr.
Goldstone, said when he testified in Congress regarding the addictive
nature of nicotine; correct?
A. I did not have a precise literal remembrance
of exactly what he
said, you know, whatever -- month or so ago, but I had a rough idea
of what
he said.
Q. And your rough idea was that he testified that
nicotine was
addictive; correct?
A. My rough remembrance of that was that if you
classify -- if the
definition for addiction is a habit, then he would say it was addictive
under that definition, is what I remember.
MR. CIRESI: May I approach, Your Honor?
THE COURT: Yes.
MR. WEBER: Is that predesignated?
MR. CIRESI: It's to refresh his recollection, counsel.
MR. WEBER: Your Honor, I object to the use of anything
that hasn't been
predesignated.
It has been? I thought he just said -- let me --
Can I just check for a minute, Your Honor?
MR. CIRESI: We're only using it at this point to
refresh his
recollection, Your Honor.
MR. WEBER: It was predesignated, Your Honor.
THE COURT: Thank you.
BY MR. CIRESI:
Q. This is a document that's in evidence, sir, it's
Exhibit 24299, the
transcript of the proceedings of January 29th, 1998 before Chairman
Representative Thomas Bliley from Virginia.
Do you recall that Mr. Goldstone testified on that
day?
A. Sure do.
Q. And you recall that the CEOs of the various tobacco
companies were
asked whether or not nicotine was addictive?
A. Yes.
Q. And you do know that in 1994 the CEO of RJR testified
that tobacco
was not addictive; correct?
A. He --
Yes, I recall that. I have to see his testimony.
Q. Okay. In fact the CEOs of every one of the tobacco
companies lined
up in a row, put their arms up, swore to tell the truth, and said tobacco
is not addictive in 1994; correct?
A. I believe that's true, yeah.
Q. And that was six years after the Surgeon General
found tobacco and
cigarettes to be addictive; correct?
A. Yes.
Q. Are you aware of any definitional changes by
any health organization
between 1994 and 1998 regarding the addictive nature of tobacco?
*3 A. No, not that I'm familiar with.
Q. Can you direct your attention to page 65 of Exhibit
24299.
A. I'm sorry, what page was that?
Q. Sixty-five. You'll find it at the top, sir.
A. Yeah, I got it. I'm on page 65.
Q. And at the bottom, you see that Represented --
Representative
Degette -- excuse me --
A. Yes.
Q. -- is starting to ask some questions?
A. Yes.
Q. And he states as follows: "The first area I want
to talk about is
this. Four years ago tobacco company executives came before this committee
and under oath like you were asked the question, is nicotine addictive?
Each of those executives responded the same, under oath, that nicotine
was
not addictive.
"I'd like to ask each of you the same question:
Is nicotine addictive?"
And then he says, "I'd like to start with Mr. Brooks,"
who's the CEO of
Brown & Williamson.
If you go over to the next page, I want to direct
your attention down
to Mr. Goldstone's response on page 66.
MR. WEBER: Your Honor, I object on this and ask
for the rule of
completeness that we begin a little bit -- few lines above so we can
get
the entire context of the discussion. It was a panel set of answers.
I'd
suggest we begin with Mr. Brooke's comments a few lines up on page
66 for
completeness purposes.
MR. CIRESI: Well, Your Honor, I'm asking about Mr.
Goldstone at this
point. If we want to talk about Mr. Brookes, then we'll get to him
when we
get to Brown & Williamson.
THE COURT: I think it's appropriate that we relate
to the testimony of
Mr. Goldstone. Mr. Brookes is a completely different issue.
MR. WEBER: But my only point on that, Your Honor,
was that the
questions were following each other and there's a context there. But
I -- I
can deal with that later.
THE COURT: Sure.
BY MR. CIRESI:
Q. See where Mr. Goldstone says, "Yes, I think under
the way people use
the term today, I agree, it is." Do you see that?
A. Yes.
Q. Now, there were no definitional changes that
you're aware of between
1994 and 1988 -- '98 regarding addiction; were there, sir?
A. No.
Q. There were none between 1988 and 1998; were there,
that you're aware
of?
A. I believe --
My understanding is there was a definitional change
in ninety --
nineteen ninety -- 1988 relative to the 1964 Surgeon General's report.
Q. You mean the Surgeon General in 1988 found nicotine
addictive and
with a similar pharmacological effect as cocaine and heroin? Is that
what
you're saying?
A. No. I'm saying that I believe -- it was my understanding
that the
Surgeon General had a different definition in 1988 for addiction than
the
Surgeon General had in 1964, and that's when in the '88 Surgeon General's
report that they said it was addictive. It was a definitional change.
Q. Well, what definitional change are you referring
to, if you know?
A. Well, I believe in, you know, 1964, the Surgeon
General, in the
definition of addiction in those days, referred to things such as
intoxication, an ever-increasing demand for the product, that withdrawal
or
ceasing to use the particular drug or product frequently required
hospitalization, that use of it became debilitating, you could lose
your
job, become socially dysfunctional. That is my understanding of the
term of
addiction back in '64, in that period of time. That is what people
refer to
as the classical definition of addiction. It's certainly the one I
grew up
with, or my understanding of it. And in 1988 I believe there were changes
that basically altered how that was defined, and suddenly intoxication
and
those types of things were not required, that -- that it's sort of
if
something is a habit that people enjoy that may be difficult to give
up,
that you're in a -- in a broader class -- broader definition of addiction.
And under those terms, if it's a habit that some people might enjoy
that
some people might have difficulty giving up, I would say if that's
the
definition of addiction, that cigarette smoking would certainly meet
that.
But if the definition of addiction is one of intoxication, of risk
of
losing your job, socially dysfunctional, needing to be committed to
an
institution to get off the use of the product, I don't believe cigarettes
meet that definition. That's heroin, cocaine, alcoholics. And I just
don't
believe that cigarettes meet that definition of addiction.
*4 Q. Okay. In 1964 did the Surgeon General rely
on the World Health
Organization's definition? If you know.
A. I'm not sure.
Q. In nineteen sixty --
Subsequent to 1964, within a short period of time,
did the World Health
Organization definition change, if you know?
A. I do not know.
Q. Pardon me?
A. I do not know.
Q. Did RJR turn over its internal documents to the
Surgeon General at
any time between 1964 and 1998?
A. I have no knowledge.
Q. Do you know if the definition for addiction includes
physiological
effects and psycological effects?
A. I suspect it does.
Q. Do you know if everybody who's on cocaine has
to be hospitalized?
A. No, I don't know that.
Q. Do you know that smokers who are trying to quit
smoking have to be
hospitalized in some instances?
A. I don't know that. I've never known a smoker
who wanted to quit
smoking who was hospitalized.
Q. Have you read Dr. Hurt's testimony in this case?
A. No, I haven't.
Q. If smokers have to be hospitalized, then they
fit one of the
criteria you just mentioned; is that correct, sir?
A. They would. I've never known anybody to be hospitalized
to give up
smoking. Forty some million people have given up smoking; I don't believe
40 some million people have gone to hospitals to give up smoking.
Q. Do you think everybody who's been on cocaine
or heroin has been
hospitalized to give up it?
A. I don't think everybody is, but I'll bet there
have been more
cocaine addicts go to hospitals to get off of their dependency than
there
have been cigarette smokers.
Q. Have you done a study on that?
A. Pardon me?
Q. Have you done a study on that?
A. No, but I'd bet on it.
Q. Have you had the company do any type of study
on that?
A. Absolutely not.
Q. Have you had the company do any type of study
as to how many people
who are on the addiction of smoking have to seek help from professionals
in
order to quit?
A. To be hospitalized?
Q. Yes.
A. I have --
We've done no study to find out how many people
have been hospitalized
to get off of smoking.
Q. Now you do know that people use other pharmaceutical
aids to quit
smoking; don't you?
A. Yeah. Patches and nicotine gum.
Q. Inhalers?
A. I'm not sure. I guess there are inhalers. I'm
not --
Q. Now you know that people suffer psycological
withdrawal symptoms
when they try to quit smoking?
A. What do you mean by "psychological?"
Q. Do they become irritable?
A. Some people do. They become irritable if they
give up coffee and
caffeine, too.
Q. Sir, I didn't ask you that.
How many people a year does coffee kill?
A. I don't know.
Q. Has it ever been reported that coffee kills 420,000
people a year?
A. Not to my knowledge.
Q. Have you ever seen any reports like that?
A. No.
Q. Have you ever seen a report from the Surgeon
General saying that
coffee is the number one preventable health disease in this country?
*5 A. No.
Q. You don't know what the definitions of addiction
are; do you, sir?
MR. WEBER: Objection, Your Honor, it's asked and
answered. We just went
through that a few minutes ago.
A. I gave --
THE COURT: You may answer.
Q. Let me ask it this way, sir: You don't know the
medical definition
is of addiction; do you?
A. No.
Q. Now at any time between 1954 and 19 -- and today,
has RJR warned
smokers that smoking is addictive?
A. No.
Q. At any time between 1954 and today, has RJR directed
people to their
internal memoranda which shows what RJR knew about nicotine and its
addictive characteristics?
A. Could you --
Could you repeat that question?
Q. Sure.
At any time between 1954 and today, has RJR directed
the public to
RJR's internal documents to show what RJR knew about the addictive
nature
of nicotine?
A. I don't recall the company directing the public
to internal
documents of the company.
Q. Now you said that Joe Camel advertising stopped;
is that right?
A. Yes. July of last year.
Q. July of 1997.
A. Yes, sir.
Q. So all advertising stopped on that day.
A. Well it --
That's when we started to make the transition, started
to take down
billboards, stop print ads, and made the transition to the new ad campaign,
yes.
Q. So you didn't --
There wasn't anything new after that day is what
I meant -- I'm asking.
Is that right?
A. What do you mean by "anything new?"
Q. Well there wasn't any new advertising and promotions
for Joe Camel
after that date.
A. All the billboards went down over a period of
time, all the print
ads, point of sales started to come down, and the only thing that's
going
on is we had a Camel Cash catalog for this year, which is a retrospective
on all the ad campaigns that the brands had over its 85-year history,
and
there's three or four or five pages in that catalog that have Joe Camel
memorabilia in that catalog, and that will finish in September of this
year. That's the only thing that's going on.
Q. That came out after RJR pledged not to have any
more Joe Camel
advertising; didn't it?
A. When we withdrew the campaign from the market
-- from the market or
announced that we were doing it, we made it very clear that there would
be
a Camel Cash catalog. In fact, in the -- I believe we made that known
to
the attorneys in the Mangini case which we settled in California.
So there was no hidden agenda there; that was very
open, that we would
have this retrospective Camel Cash catalog of which there were a few
pages
in there of Joe Camel memorabilia. But all the billboards, all the
print
advertising, point of sales I guess, virtually gone. There could still
be a
few pieces laying around out there, but Joe's off the broad public
landscape.
There's a few pages in the Camel Cash catalog which
will end in
September, and that will be it.
Q. Mr. Goldstone didn't know that was still going
on when he testified
in front of Congress on January 29th; did he?
*6 A. No. And it doesn't surprise me that he didn't;
he doesn't review
all the advertising, promotion and marketing plans that we have.
Q. And in fact, he said it shouldn't be going on;
didn't he?
A. I don't remember that, that it shouldn't.
Q. Well why don't you direct your attention to page
78 of the memo --
or the transcript you have in front of you, Exhibit 24299.
A. What page?
Q. Page 78, sir.
A. Yes.
Q. Start at the top of that page. Representative
Brown.
A. Yes.
Q. "Thank you, Mr. Chairman. I want to follow" --
MR. WEBER: Can I object -- can I object to the reading
of this
question? It's a political speech from a political forum. It doesn't
--
under 403, it doesn't belong in a courtroom.
MR. CIRESI: This is the testimony under oath, Your
Honor, by Mr.
Goldstone in response to a question by a member of Congress regarding
the
representations that all Camel advertising and promotion was done.
MR. WEBER: I have no objection, Your Honor, to the
Goldstone part, it's
the political speechifying.
THE COURT: That's something you can argue. But I
don't see how we
cannot have the question and just get the answer. So just -- I mean
you may
argue with his form of questioning, but you can certainly --
MR. WEBER: Can I make one suggestion on that, Your
Honor?
THE COURT: Yes.
MR. WEBER: Because he could ask just the question
right before Mr.
Goldstone speaks that begins "And I guess...," because that's the question
after all the speechifying before it.
THE COURT: Well --
MR. CIRESI: Well I don't know what "speechifying"
is, --
THE COURT: Okay.
MR. CIRESI: -- but it's the prelude to asking the
question, Your Honor.
THE COURT: I will allow a full question before an
answer, and allow you
--
I mean if you want to argue to the jury later that
this representative
is a politician, you're welcome to do that.
BY MR. CIRESI:
Q. "REPRESENTATIVE BROWN: Thank you, Mr. Chairman.
I want to follow up
with Mr. Goldstone. I didn't get a chance earlier when we were trying
to
talk and the time ran out. I appreciate your comments that the documents
were 'immoral, unethical, illegal"' --
Do you see that, sir?
A. Yes.
Q. Those were the documents we have been viewing
here in this courtroom
that you've testified to; correct, sir?
A. Yes.
Q. Those were the documents to the board of directors;
correct?
A. Yes.
Q. -- "I think, is the three adjectives you used.
I'm troubled by some
things with sort of the re-emergence on the Joe Camel stuff. Your company
sent out a direct-mail piece to at least one family in Minnesota called
"Camel Cash Timeless Collectibles, 1913 to 1998."
"My understanding is you have retired Joe Camel.
He's' gone; he's not
coming back....you can send away still, even after Joe Camel went into
retirement, you can get a set of tumblers called 'Joe's Beach Club.'
You
can get Camel T-shirts. You can get Joe Camel jamming on the piano,
Joe
Camel lighters. And my favorite is you can get a book of the illustrated
history of Joe Camel stating, quote, 'Joe may be gone, but he won't
be
forgotten.'
*7 That's troubling when you said publicly you're
retiring Joe Camel.
At the same time, something really more troubling than that happened
in
Cleveland, not far from my district, in restaurants and coffee clubs
and
concert halls all over, where there's something called Camel Clubs
that was
reported by a Cleveland newspaper when young sort of hip kids in their
20s
-- of smoking age, of legal age -- go and sort buddy up with people
that
may or may not be 18 -- of legal age -- go and buddy up with people
that
may or may not be 18; may be 16 in some cases -- they're not places
that --
that go -- that only 18- or 21- year-olds are allow to go -- and give
away
cigarettes and get to know the people that work at the restaurants
or the
bars or the concert halls. These are the kinds of things still going
on.
"And I guess I'd like to ask you, in light of your
comments of saying
that the documents were immoral, unethical and illegal, are these things
--
is your company going to keep doing the Camel Clubs and keep doing
the
sales of Joe Camel paraphernalia?
"MR. GOLDSTONE: Congressman, I feel quite strongly
when I came to a
conclusion a number of months ago that our company, for a lot of reasons,
should not be using Joe Camel. And I do not expect our company to be
using
Joe Camel on -- I'm not sure what this is; I'm just looking at it now.
But
if this exists today, it is not going to exist -- I don't know that
I can
say tomorrow it will all be gone, but it should be gone. We are not
going
to use Joe Camel. And the only thing I can tell you about the other
activity -- I mean, I do have to say to you that marketing or selling
cigarettes in bars or in places where clearly you must be 21 years
or older
to get in has to be something that we can feel is a reasonable activity
if
tobacco companies are going to be able to advertise at all, because
we know
that children are not in those areas."
Do you see that, sir?
A. Yeah.
Q. And Mr. Goldstone was not aware of the Joe Camel
Cash Collectibles;
correct?
A. Apparently. Or if he was, he forgot. But he makes
a statement it
will be gone, and it will be gone. It -- it -- there's nothing -- there's
no hidden agenda here. It's very open. It's a Cash -- Camel Cash catalog.
Doesn't have Joe Camel on the cover; it has an ad or something, I believe,
from back in the '30s or '40s.
Believe it or not, Mr. Ciresi, adult smokers like
Joe Camel, like the
memorabilia. When we pulled the campaign, all of a sudden some of these
old
mugs and old ads and stuff started being collectibles and people really
liked them. So we're doing a retrospective on 75 years of the brand.
We
have a few pages in there on Joe, and in September that's it, it's
gone.
And --
Q. "Gone but -- Gone but not forgotten" is what
you said in the Cash
Collectibles brochure; correct?
A. Well it won't be forgotten, but it will be gone.
Q. And -- and you had devices in there that could
be put around beer
cans with Joe Camel; correct?
*8 A. Yeah. Some of the stuff that was used over
the about eight or
nine years that we had the campaign.
Q. T-shirts?
A. Yeah.
Q. Handlebar T-shirts, pool-player T-shirts; correct?
A. Yeah, I believe so. I don't remember all the
items in there.
Q. Dart games; correct?
A. Could be.
Q. A beach club tumbler set; correct?
A. Yes.
Q. Money clips; correct?
A. I don't have the catalog in front of me; I'll
have to take your word
for it, that you're getting it all out of the catalog.
Q. Well let me hand you a copy of it, see if it
will refresh your
recollection.
MR. CIRESI: May I approach, Your Honor?
(Catalog handed to the witness.)
BY MR. CIRESI:
Q. That's the catalog; correct?
A. Right.
Q. And if you turn to the page dealing with Joe
Camel, it says "The Joe
Years;" correct?
A. Yes.
Q. All right.
A. Yeah. "Joe Years."
Q. And you've got a lot of posters there, the illustrated
history of
Joe; is that right?
A. Yeah.
Q. And then if you go over to the next page, you'll
see the lighters,
dart games; correct?
A. Absolutely.
Q. And you go to the next page --
That's this page here (displaying); correct, sir?
A. Yes.
Q. Then you go to the next page and you've got ashtrays;
correct?
MR. WEBER: Your Honor, I'd object at this point.
A. Yes.
MR. WEBER: If he's using this for refreshment of
recollection --
THE COURT: Just a moment, please. Would you allow
me to rule, please?
A. Yeah, ashtrays or --
THE COURT: Sir, sir.
THE WITNESS: Oh.
THE COURT: Would you allow me to rule on the objection,
please? Okay.
Thank you.
The objection is sustained unless you're going to
introduce it as an
exhibit.
MR. CIRESI: All right. Thank you, Your Honor.
BY MR. CIRESI:
Q. And there were T-shirts in there; correct, sir?
A. Yes.
Q. And people will be able to order from this until
September of this
year; correct?
A. Yes.
Q. And this went into effect in February of this
year; correct?
A. I believe that's right, yes.
Q. About nine months after RJR said that it wasn't
going to use the Joe
Camel image any more; correct, sir?
A. Yes. And when we said we were pulling out of
the Joe campaign, we
told people we had this Camel Cash catalog coming out in this retrospective
fashion, which also has a bunch of other items from the '40s and the
'50s
in it, too.
Q. Apparently you didn't tell Mr. Goldstone, the
CEO, or he forgot when
he testified under --
A. He might have.
Q. Excuse me.
A. He's a busy man.
Q. Excuse me.
Apparently you didn't tell Mr. Goldstone, your CEO,
or he forgot when
he testified under oath; is that right?
A. He may have forgotten. He may -- he may not have
known. I just can't
remember.
Q. Now you'll recall that yesterday we went over
the Frank Statement?
A. Yes.
Q. The representations that were made by RJR, among
others of the
defendants, to the public back in 1954; correct?
*9 A. Yes.
Q. Now you testified that RJR is part of The Tobacco
Institute;
correct?
A. Yes.
Q. It has also supported The Council for Tobacco
Research since 1954;
hasn't it?
A. Yes.
Q. And that was previously known as the TIRC; correct?
A. I believe so, yes.
Q. And you know that was formed in 1954 to engage,
among -- in, among
other things, public relations; correct?
A. It was formed in 1954, from my understanding,
to do research into
diseases related to smoking.
Q. Okay. Can you direct your attention, sir, to
Exhibit 18904.
A. I'm there.
Q. This is a Hill & Knowlton document, sir,
that's already been
introduced into evidence. Have you seen this before?
A. Hmm. This is one I don't think I've seen.
Q. Okay. Then let's back up a document and let's
go to 18905 first.
A. Yes.
Q. This is another Hill & Knowlton document
dated December 15th, 1953.
Have you seen this?
A. I don't think so.
Q. You are aware, based on your knowledge of the
history of the tobacco
industry, that in 1953 certain studies were published in Reader's Digest
and other places concerning smoking and lung cancer?
A. You know, I remember that broadly as part of
the historical past of
45 years ago.
Q. And at that time that caused great alarm among
the tobacco industry?
A. I was nine years old at the time. I wasn't around
for the great
alarm in the tobacco industry in 1953 or '4.
Q. Well have you learned about that during the course
of your career
with RJR?
A. No. I don't remember interacting with anybody
in or -- in the course
of my career who was telling me about the great alarm they had in 1953
over
the Reader's Digest articles.
Q. Have you learned about the steps the industry
took in order to get
out information that was entirely pro cigarette?
A. In 1950s?
Q. Yes.
A. I -- I wasn't in the company in the '50s.
Q. That's not what I asked.
A. I -- you know, there --
If we're referring to specific documents, I think
we should just go to
them. I don't read --
I mean I haven't studied 1953 and '54.
Q. Well then is your answer no?
A. I suppose it is.
Q. Well then just say no, sir.
MR. WEBER: Object to the commentary of counsel,
--
A. No.
MR. WEBER: -- Your Honor.
Q. Thank you.
Have you read Exhibit 18905?
A. No, I haven't.
Q. Can you go to the first page.
MR. WEBER: Your Honor, I'd object to any questioning
on this exhibit
under Rule 602, which limits testimony to matters of which the witness
has
knowledge. And in addition, it's cumulative, it's a document that's
been
gone through before with other witnesses.
THE COURT: Not with this witness though.
MR. WEBER: And then on Rule 602, Your Honor?
THE COURT: Denied.
BY MR. CIRESI:
Q. Do you see, sir, in the first page, that one
of the participants in
this meeting at the Hotel Plaza was a group called together by Paul
Hahan,
president of American Tobacco, and one of the chief executive officers
was
from R. J. Reynolds?
*10 A. Yes.
Q. Have you seen this document now before?
A. No, I haven't.
Q. Okay. You didn't get an opportunity to read this
in preparation for
your testimony?
A. I just told you I've never seen it.
Q. Okay. Can you direct your attention to the next
page, and about four
paragraphs down under Roman numeral III, "The Industry's Position,"
do you
see the statement, "They feel they should sponsor a public relations
campaign which is positive in nature and is entirely 'pro-cigarettes.'
They
are confident they can supply us with comprehensive and authoritative
scientific material which completely refutes the health charges?"
A. Yes, I see that.
Q. And were you aware that the TIRC, the forerunner
of the CTR, was
formed in part to carry on public relations functions?
A. No, I'm not aware of that. My experience with
CTR is we give money
to the CTR, and blue ribbon panel of medical research and scientists
administer grants throughout the country, Nobel Prize winners and American
Academy of Science people that -- that administer that money.
Q. Have you ever --
A. I have no knowledge of this PR thing back in
the '50s.
Q. Okay.
A. From what I've seen -- the purpose, as I understand
it, is what I've
seen carried out, in my experience with it.
Q. And sir, have you ever called these Nobel Prize
winners and
academicians together to have a blue ribbon committee to determine
from
them whether they believe smoking causes lung cancer?
A. No, I've never done that.
Q. Have you ever called them together to see if
smoking causes chronic
obstructive pulmonary disease?
A. No, I haven't.
Q. Have you ever called them together to see if
smoking causes chronic
heart disease?
A. No, I haven't.
Q. Have you called them together to see if smoking
causes any disease?
A. No, I haven't.
Q. Now you do know that back in 1953 and early 1954,
the companies
considered that their own advertising and competitive practices had
caused
a health problem. You know that; don't you?
A. Could you repeat the question, please?
Q. Sure.
You do know that back in 1953 and early 1954, the
companies considered
that their own advertising and competitive practices created a health
problem.
A. No, I don't know that. I've never heard that
before.
Q. Nobody ever told you that?
A. No. You're the first one.
Q. Well, can you direct your attention to page three.
A. Yes.
Q. And if you look at the second indented paragraph.
A. "Distribution" --
Q. "Do the companies...." Do you see that?
I'm sorry, the further indented paragraph, I should
have said.
A. Oh, "Do the companies...," is that what you're
--
Q. Yes.
A. Okay.
Q. "Do the companies consider that their own advertising
and
competitive practices have been a principal factor in creating a health
problem?
"The companies voluntarily admitted this to be the
case even before the
question was asked."
Do you see that?
*11 A. Yeah, I see that.
Q. And where in the Frank Statement is the statement
that the company's
advertising and competitive practices have been a principal factor
in
creating a health problem?
A. Can you repeat the question, please?
Q. I will, indeed.
Sir, I'll give you an opportunity if you want to
read another paragraph
in there.
A. Well I --
Q. If you could -- if you could listen --
A. -- I've never seen this before, and you give
me a couple of
sentences and then start asking questions. I'll have to admit while
you
were asking the question I was trying to read a little bit of this
thing.
Q. And I'll give you an opportunity to do that if
you want to;
otherwise, if you'd listen to my question, we'll be able to move through
it
a little quicker. All right? Is that agreeable?
A. Fine. Go ahead.
Q. Where in the Frank Statement did RJR or any of
the tobacco companies
say that their advertising and competitive practices have been a principal
factor in creating a health problem?
A. Nowhere that I know of.
Q. In fact, they said that their products did not
create a health
problem; didn't they?
A. I believe they said that they didn't believe
that products were
injurious to health or something like that.
Q. So they said directly contrary to what they said
internally;
correct?
A. I don't know what they were talking about here.
I don't know if they
were talking about an actual health problem or the problem of the health
community attacking them because of the nature of their ads, so I don't
really know what they were talking about here in 1953 when I was probably
in eighth or ninth grade. I had -- you know, you --
You're interpreting this as they were admitting
that cigarettes and
advertising caused health problems. They could be talking about the
problem
they had with the health community because of the nature of their
advertising. I don't know.
Q. Are you done?
A. Yes.
Q. Okay. But what the document says is that "Do
the companies consider
that their own advertising and competitive practices have been a principal
factor in creating a health problem?
"The companies voluntarily admitted this to be the
is case even before
the question was asked."
That's what the document says; correct?
A. I understand that, Mr. Ciresi. This is the first
time I have seen
this document. This is 45 years ago. I have no idea what happened in
this
meeting. I don't even know who these people were that were in the meeting.
And you're asking me to tell you what I think about these two or three
sentences in this document. I have no knowledge of what these folks
were
doing.
Q. Now can you go to Exhibit 18904.
A. I'm there.
Q. Do you know if the companies were faced at that
time with a problem
of establishing confidence in the companies and the companies' leaders?
MR. WEBER: Your Honor, I have the same objections
under 602 and
cumulative as with the last one.
THE COURT: It's denied.
*12 A. I have no knowledge.
Q. All right. Can you direct your attention, please,
sir, first of all,
to the second page of this document.
Do you know if the companies at this time wanted
a cancer- free
cigarette?
A. I have no idea.
Q. Do you know if Hill & Knowlton interviewed
the research directors of
the companies?
A. I have no idea.
Q. All right. Do you see it reported on page two.
A. Where?
Q. At the top of the page, "The attitude of the
men we must directly
deal with in the industry is at once interesting, and important for
us to
understand. This is why notes on the four interviews with 'research
directors' are given at some length. You'll get from them little real
information about lung cancer, pro or con; but you'll find some mighty
interesting opinions. One of them said, 'It's fortunate for us that
cigarettes are a habit they can't break."' Do you see that?
A. Yes. Whoever said that was wrong. Forty some
million people seem to
have broken the habit, the volume in the industry has declined 20 some
percent since 1982, so obviously this person's forecasting skills were
a
little limited.
Q. Well how many people have died from smoking-related
diseases --
A. I have no --
Q. -- since 19 --
Excuse me, sir.
A. I have no idea.
Q. Excuse me. How many people have died from smoking-related
diseases
since 1987?
A. I have no idea.
Q. I suppose they aren't buying cigarettes any more;
are they? Are
they, sir?
A. I don't believe people who are not alive can
buy cigarettes.
Q. So that volume would go down; wouldn't it, sir?
A. Yes, sir.
Q. And if schools in states were trying to overcome
the advertising of
your companies to prevent youth from smoking and youth didn't smoke,
that
would cause the volume to go down; wouldn't it?
A. I don't believe our advertising causes youth
to smoke.
Q. Well, if the schools in the states were trying
to overcome the
tendency of people to smoke, young people, for whatever reason, that
would
cause the volume of smoking to go down; wouldn't it?
A. If people stopped smoking, the volume will go
down.
Q. And your volume went up.
A. When?
Q. In the last two years. Hasn't it?
A. Our volume?
Q. Yes.
A. Our cigarette volume?
Q. Yes.
A. No. Our cigarette volume -- I don't know what
-- from, say, 1992 to
today, has probably gone down maybe 20 percent.
Q. The last two years, sir, the volume --
A. It's gone down in the last two years, probably
about five -- four,
five percent.
Q. Has your market share gone up?
A. No.
Q. Did it go up last year?
A. Our total market share? No.
Q. No, did the market share in any brand go up?
A. Oh, yeah. Camel share went up with four to five
tenths of a share
point.
Q. And did it go up from the time the Joe Camel
ad came on?
A. Yes.
Q. Every year it went up?
A. Not every year.
Q. Almost every year; correct?
A. Probably most of the years, but not every year.
*13 Q. And it went up in the youngest category;
didn't it, sir?
Youngest age group?
A. Eighteen to 24?
Q. Let's take your definition, 18 to 24. Went up
every year; didn't it?
A. No, I don't think it's gone up every year.
Q. Can you think of one year that it didn't since
1988?
A. Yeah. I believe it actually went down some from
ninety through --
'93 through '96.
Q. The Camel --
A. '93, '94 --
Q. Camel --
A. Talking about 18 to 24.
Q. Camel --
A. Yeah, there's some -- there's been some decline
in the 18 to 24.
After the campaign started, somewhere within a couple years or so,
and I'm
not sure of the exact dates, it went up to 10 to 13 percent of 18 to
24.
It's been at nine, it's been at 10, it's been at 13; it's bounced around
a
bit.
Q. So --
A. It's not been -- it's not been some steady rise
in 18 to 24.
Q. It's gone up multiples since before that campaign
was put into
place; hasn't it?
A. I told you it went up from before the campaign,
but it has not
continued to rise, as you implied in your question.
Q. Now if you go back to this document, "'It's fortunate
for us that
cigarettes are a habit they can't break."' You can't break --
A. What --
Q. Excuse me, sir. I haven't finished.
A. No, I'm not sure where you are.
Q. On page two, the same document.
A. Okay.
Q. Right where we were.
A. You're more familiar with this document than
I am, so you have to
give me a few minutes to find the place.
Q. Did your lawyers give you this document? It was
a designated
document.
A. I had told you when we started here I do not
remember seeing this
document, and as we've gotten into it I can tell you I haven't seen
this
document.
Q. "'It's fortunate for us that cigarettes are a
habit they can't
break."' If somebody can't break a habit, are they addicted to it?
A. I don't agree with that statement.
Q. Didn't ask you that.
A. Well if somebody can't break a habit -- can't,
impossible -- I guess
you'd say they were addicted to it.
Q. All right. Now is everybody who uses cocaine
unable to stop using
cocaine?
A. No.
Q. Is everybody who uses heroin unable to stop using
heroin?
MR. WEBER: Objection, Your Honor, asked and answered
earlier this
morning.
A. No.
MR. WEBER: We went through this.
THE COURT: Well this is a little different question.
Q. Your answer was no; is that right?
A. Yes, it was no.
Q. Do you see the next statement, "'Boy! wouldn't
it be wonderful if
our company was the first to produce a cancer free cigarette."'
A. Yes.
Q. "'What we could do to the competition!"' Do you
see that?
A. Yes.
Q. Did RJR at any time from 1954 forward say that
they knew back in
1954 that their cigarettes cause cancer?
A. Could you ask me the question again?
Q. Yes. At any time since 1954, has RJR said that
their cigarettes
cause cancer?
A. No.
Q. Can you go down to the next paragraph. "At the
moment, these men
feel thrown for a loop. They've competed for years - not in price,
not in
any real difference of quality - but just in ability to conjure up
more
hypnotic claims and brighter assurances for what their own brand might
do
for a smoker, compared to another brand." Do you see that?
*14 A. Yes.
Q. Now sir, over the years RJR has sold low tar/low
nicotine
cigarettes; correct?
A. Yes. Low tar cigarettes have been on the market
since, ah, late
'60s, early '70s.
Q. And you don't know if those cigarettes are safer
because you have no
data to confirm that they are safer; correct?
A. That's true.
Q. That's absolutely true; isn't it?
A. That I have no data that says low tar cigarettes
are safer?
Q. Yes.
A. That's true. I have no data that -- that I know
of that says low tar
cigarettes are safer.
Q. RJR has no data; correct?
A. That's right. I don't know of any data RJR has
that says low tar
cigarettes are safer.
Q. You're not aware of any such data that the industry
has; correct?
A. I'm not aware of any.
Q. Are you aware that in this courtroom, RJR is
suggesting that low tar
cigarettes are safer? Are you aware of that?
A. No.
Q. If they were, if they're trying to convince the
ladies and gentlemen
of this jury that they are, there's no data to support that; is there,
sir?
A. I --
MR. WEBER: Objection, Your Honor, --
A. I don't --
MR. WEBER: -- it's a misstatement of what's been
said in this case.
THE COURT: I think you'll have to rephrase that
question, counsel.
Q. I want you to assume that that is what's being
urged in this
courtroom. If that is being urged, you know of no data to confirm that;
do
you, sir?
MR. WEBER: Same objection, Your Honor.
THE COURT: You may answer that.
A. I'm not going to assume that was said in this
courtroom. I find it
hard to believe that it was. In fact I don't believe it was.
Q. Because --
A. So why shall I assume something that I believe
didn't happen?
Q. Well let me --
I'm going to ask you two questions on that. Number
one, I have a right
to ask you to assume. So we'll go forward and say: Assuming that, you
know
of no data to confirm it; correct?
A. I don't --
MR. WEBER: I object to counsel's commentary in the
preface to the
question, Your Honor.
THE COURT: No, I think it was necessary to ask.
Q. You know of no data to confirm it; do you?
A. I don't know of any Reynolds data that says that
low tar cigarettes
are safer, and I do not assume that that happened in this courtroom.
Q. In fact, you would find that hard to believe
because you don't
believe it; correct?
A. Believe what?
Q. That low tar/nicotine cigarettes are safer.
A. In the absolute sense that you're defining that,
I believe that, you
know, basically what medical science has said over the years, that
it's a
good idea to address the risk in smoking -- cigarette smoke by reducing
the
tar levels. And we've pursued that over the years; we have cigarettes
today
that are substantially less in tar and nicotine. I believe in principle
they may have or have the potential to reduce the risk. They certainly
reduce the compounds that science associates with the risk of smoking.
In
the absolute sense of a safer cigarette, I couldn't say that. But it
reduces tar, reduces compounds that people associate with the risk
of
smoking.
*15 Q. Are you done?
A. Yeah.
Q. Okay. Let me ask my question again. See if you
can answer it.
You stated --
MR. WEBER: Object to counsel's commentary again,
Your Honor.
THE COURT: No, that's not commentary.
Q. You stated as follows: "I'm not going to assume
that was said in
this courtroom. I find it hard to believe it was. In fact I don't believe
it was." Isn't that what you said?
A. Yeah.
Q. Thank you, sir.
Now in 1954, were you aware that the problem that
was facing the
industry was confidence and how to establish it, public assurance and
how
to create it?
A. I was not aware of that in 1954.
Q. Did anybody advise you that that was how the
industry looked at the
health issue at that time before they formed The Council for Tobacco
Research, then known as the TIRC?
A. I was in Harrisburg, Pennsylvania in grade school
in 1954.
Q. That's not what I asked you, sir.
A. I -- I do not know what you're talking about
here in terms of 45 or
44 years ago and conversations between PR firms and executives and
scientists in 1954. I have no knowledge of what they were doing.
Q. Please direct your attention to page four of
this exhibit.
A. Yes.
Q. Very top. "Problem 1.
"The very first problem is to establish some public
confidence in the
industry's leaders themselves, so that the public will believe their
assertions of their own interest in the public health." Do you see
that?
A. Yes.
Q. And by "their assurances" -- excuse me.
By "their assertions," that's referring to the industry's
leaders'
assertions; correct?
A. Appears that way. I think it does.
Q. And you're an industry leader today; correct?
A. Yes.
Q. And you're making statements of your interest
in the public health;
aren't you?
A. What do you mean?
Q. That you are interested in not selling to children;
correct?
A. We don't sell to children. We don't market or
develop marketing
programs for children.
Q. And so you're making a statement about the public
health and you
want people to believe it; correct?
A. That's the way we operate the company. It's a
fact.
Q. Can you answer my question?
A. Well of course I want people to believe it --
Q. All right.
A. -- because it's the truth.
Q. Now let's go on to see what the industry thought
of their statements
in the past. Do you know if they felt that they tended to twist the
facts?
A. I don't know if people tended to twist the facts
in the past.
Q. Can you go to page five. Do you see problem three?
A. Yes.
Q. "How to validate this message of assurance."
Do you see that?
A. Yes.
Q. And then it says, "The men talked to in the cigarette
companies tend
to," and then it goes through subparagraphs (a), (b) and (c), do you
see
that?
A. Yes.
Q. One of the things they tended to was to smear
the personal
responsibility, motives, judgments or techniques of Wynder and others
supporting him. Do you see that?
*16 MR. WEBER: Your Honor, I'd object to any questions
about the
characterizations by Hill & Knowlton about what other people did.
I think
that's inappropriate under 403.
THE COURT: No, I think it's appropriate. These people
are working for
the tobacco company and they're talking about the tobacco executives.
It's
relevant, and I will allow that inquiry.
Q. Do you see that, sir?
A. Paragraph (a)?
Q. Yes.
A. Okay. What's --
Yeah, I see the --
Q. Okay.
A. -- the sentence.
Q. "The men talked to in the tobacco" -- or "in
the cigarette companies
tend to:
"Think occasionally in terms of trying to 'smear'
the personal
responsibility, motives, judgments, or techniques of Wynder and others...."
Do you see that?
A. That's what this says.
Q. Okay. And Wynder was one of the scientists who
published materials
regarding the relationship of smoking to lung cancer; correct?
A. Yes.
Q. You remember his name; don't you?
A. Well I've heard his name over the years, yes.
Q. Now another thing that the men talked to in the
cigarette companies
tend to do is set forth in paragraph (c). Do you see that?
A. Yes.
Q. "To overlook the fact that in this particular
instance, the stakes
for the public are even larger than for the tobacco manufacturers.
(For the
public, an issue touching the deepest of human fears and instincts
is
involved - the issues of uncontrollable disease and death. Hence cigarette
companies might not readily be forgiven, if their approach to this
problem
is stemmed only from eagerness to protect their earnings, and if they
twisted the research of medical science (which seeks to save men) into
a
device to save stockholders. There is no precedent where a great industry
has been forced to face such grave issues."
"In the past, industry has given little twists to
the facts of science,
to convert them into sales propoganda, without much risk. The cigarette
industry has indeed been doing this for years."
Now did you know that, sir?
A. Did I know that somebody wrote this in this document
40 some years
ago? No.
Q. No. Did you know that an agent of the tobacco
industry who met with
the executives and research directors wrote that in the past, industry
had
given little twists to the facts of science to convert them into sales
propoganda without much risk? Did you know that?
A. I did not know that anybody ever wrote this or
said that, or this
person existed or anything.
Q. Nobody ever told you about this.
A. No.
Q. Nobody ever told you that it was these documents
which led to the
Frank Statement put out by your company and the other manufacturers
who are
sitting around these tables represented by these lawyers. Nobody ever
told
you that.
A. No.
Q. "We can therefore" -- if you go back to the page
where I was. "We
can therefore readily" --
A. Wait, wait, wait a minute. Where -- I'm lost.
Q. Same paragraph.
A. Oh. Okay. Got you.
Q. "We can therefore readily understand its assumptions
that the same
technique will work now, in devising propaganda. But it is highly important
to note that the deep issues of life-and-death that are involved make
highly doubtful the question as to whether the familiar techniques
can be
relied on. The stakes are too large; the penalties for losing could
be too
great."
*17 Do you see that?
A. Yes, I see that.
Q. Did anybody ever advise you of that?
A. No.
Q. If the tobacco industry has twisted the facts
over the years, the
penalties should be great; shouldn't they?
A. I'm not a lawyer or a judge, I don't know how
to answer a legal
question that you seem to be putting to me.
Q. I'm not asking you a legal question, I'm just
asking you as one
human being to another. If this industry twisted the facts over the
years
regarding science, the penalties should be great; shouldn't they?
MR. WEBER: Your Honor, I'd object to the commentary,
to the
argumentative nature, and to the fact that it does deal with legal
issues
for the jury.
THE COURT: No, it's a proper question, except for
the first half of the
statement.
MR. CIRESI: I'll withdraw that part of it.
THE COURT: The question itself is okay.
BY MR. CIRESI:
Q. Sir, if the tobacco industry twisted the facts
over the years, the
penalties should be great; correct?
A. I don't --
That's a legal judgment I believe you're asking
me to make. I'm
incapable of making that. I don't -- I mean I don't know how to answer
that
question.
Q. Just no way of knowing; right?
A. I'm not a lawyer. I'm not a judge.
Q. So you think --
A. If there are legal penalties to be rendered,
they'll be rendered by
the jury.
Q. So that's for the jury --
A. They will sit and judge what they see and they
will render their
decision. That's the way the system works.
Q. And you have no idea whether the penalties should
be great if the
facts were twisted by the industry that you worked for for over 40
years.
MR. WEBER: Objection, Your Honor, asked and answered.
It's the last
question.
THE COURT: It's been asked and answered.
Q. Now sir, if you look back on page five of that
document, --
A. Yes.
Q. -- you see that at the top there's a reference
to a smoker starting
with "He might just as well go on enjoying his smoke...." Do you see
that?
A. Yes.
Q. "He might just as well go on enjoying his smoke
in this interim
while research pursues the facts, with full assurance that if any
cancer-causing agent is ever found -- really found in tobacco, the
manufacturers will quickly find a way to eliminate it." Do you see
that?
A. Yes.
Q. And if you go on over to the bottom of page seven,
at the bottom of
that page, --
A. Yes.
Q. -- last paragraph, "You can count on the cigarette
companies (who
have obligated themselves to pour millions of dollars into cancer research)
to take anything out of your cigarette that is a health hazard" --
Does that mean if it's a risk?
A. I guess we're talking about risk, yes.
Q. Okay.
-- "if our science ever really finds any such hazard
in the wonderful
tobacco leaf. Meanwhile know this: despite the most elaborate attempts,
no
efforts to give mice a lung illness by making them live days on end
in
tobacco smoke has ever produced a cause -- case of such illness through
that kind of exposure." Do you see that?
*18 A. Yes.
Q. Okay. That's animal testing; correct?
A. Yes.
Q. Biological testing; correct?
A. Yes.
Q. And did RJR do biological testing?
A. In the '50s?
Q. In the '60s, in the '50s --
Let's start in the '50s.
A. I don't know.
Q. Did they do it in the '60s?
A. I'm not sure. I think so, but I'm not sure.
Q. Did they have a Mouse House that they closed
down?
A. I've heard that.
Q. Did you read the documents about it?
A. No.
Q. Do you know if it was closed down because the
CEOs of RJR and Philip
Morris talked and that it was in violation of the gentlemen's agreement
not
to do that type of research?
A. No, I don't know that.
Q. You don't know.
A. Never heard of a gentlemen's agreement.
Q. Did RJR in the '50s and '60s know about cancer-causing
compounds in
the wonderful tobacco leaf?
A. I believe in the '50s and '60s, obviously Reynolds,
I would imagine
the other companies, the public health community, science, was in the
rather aggressive identification process of compounds in cigarettes,
so I'm
sure in the '50s and the '60s they knew there were compounds in cigarettes
that had been identified that had the potential to be cancer-causing
or
potential to have health risk.
Q. So RJR knew; correct, sir?
A. I would think. There was a lot of work, in my
understanding, going
on back in those days, not just at Reynolds but throughout the scientific
community, to attempt to identify various compounds in cigarettes.
Q. Did you not understand the question I asked you?
A. Apparently I didn't, because you're going to
ask it again.
Q. Well, you let me know if you don't understand
the question that I
ask you. Is that agreeable?
A. Yeah.
Q. Okay. Did Reynolds know that there were cance-causing
compounds in
cigarettes in the 1950s and '60s?
A. I believe --
MR. WEBER: Object, Your Honor, that was asked and
answered. It was a
proper answer.
THE COURT: It was not answered.
A. I believe, based on what I've heard, that Reynolds
was doing
research related to identifying compounds in cigarettes that could
potentially be cancer-causing.
Q. Okay. They were hazards found in the wonderful
tobacco leaf;
correct?
A. Hazards?
Q. Yes.
A. They were compounds, as I understand all this,
that had the
potential. Whether or not they were literally hazards in that sense
I don't
know, but they were identifying compounds --
Q. Well you just said no --
A. -- and publishing on it.
Q. Excuse me, sir. Didn't you just say earlier that
if it was cancer-
causing, it would be a hazard?
A. I don't remember what you're referring to.
Q. Can you direct your attention to Exhibit 12581.
A. That's a different book; right?
Q. It is.
Can you tell me, sir, while you're looking for that
document, when
Reynolds warned the consuming public that it knew there were cancer-causing
compounds in its cigarettes?
THE COURT: Counsel, I don't think it's fair to the
witness to have him
looking through to find a document and then ask a question at the same
time.
*19 MR. CIRESI: I'm sorry.
THE COURT: Why don't you wait until he finds the
document, then address
the question, please.
A. I have --
Q. Do you have the document?
A. Yes, I have the document, yes.
Q. Do you know when RJR warned the public that it
knew there were
cancer- causing compounds in its cigarettes?
A. I don't know that R. J. Reynolds ever, as you
put it, warned the
public that there were cancer-causing compounds in cigarettes.
Q. Never, right up to today; correct?
A. I don't recall the company ever taking out an
ad or -- if that's
what you're referring to.
Q. People would write in and ask for information
to Reynolds; wouldn't
they?
A. I suppose so, yes.
Q. People write in and complain about ads that Reynolds
was running;
correct?
A. Are you talking about today?
Q. Yeah. In the '80s, in the '70s.
A. Yeah, people --
You get people that write all sorts of things.
Q. Okay. And people who wrote in and asked about
the health hazards and
what Reynolds knew about the health hazards of smoking, did Reynolds
tell
them what was in their files?
A. No, not that I know of.
Q. And those were members of the public; correct,
that would write in?
A. Yes.
Q. The members who you made -- and by "you" I mean
RJR --
representations to in the Frank Statement; correct?
A. Could be, yes. I mean people --
That was in the public, people that write in are
from the public.
Q. And one of the representations, quoted correctly,
"We believe the
products we make are not injurious to health." Correct?
A. Yes, that's what that says.
Q. Now if you direct your attention, sir, to Exhibit
12581.
A. Yes.
Q. This is a "SURVEY OF CANCER RESEARCH with emphasis
on POSSIBLE
CARCINOGENS FROM TOBACCO" by Claude E. Teague, Jr., 2nd of February,
1953.
Do you see that?
A. Yes.
Q. It's the same Mr. Teague we saw yesterday --
or Dr. Teague we saw
yesterday; correct?
A. Sure is, I think.
Q. Have you seen this document before?
A. Yes, I believe I have.
Q. Okay. When's the first time you saw it?
A. I can't remember. I started seeing documents,
as I've said before,
you know, starting about a year and a half ago as I started to become
involved in various cases in litigation.
Q. Can you direct your attention to page 14.
A. Yes.
Q. And you see --
A. Or I'm sorry -- I'm sorry.
Q. And I'm talking about the 14, not the Bates number,
but the other
number, sir.
A. Yeah.
Q. Do you have it?
A. Yeah. "Tobacco Additives" and --
Q. Correct. And do you see the "CONCLUSIONS" section
there?
A. Yes.
Q. And Dr. Teague concludes there that "The increased
incidence of
cancer of the lung in man which has occurred during the last half century
is probably due to new or increased contact with carcinogenic stimuli."
Correct?
A. That's what it says.
Q. He goes on to state, "The closely parallel increase
in cigarette
smoking has led to the suspicion that tobacco smoking is an important
etiologic factor in the induction of primary cancer of the lung." Do
you
see that?
*20 A. Yes.
Q. And do you know what the term "etiologic" means?
A. No. You want to tell me?
Q. Do you know if it means cause?
A. Cause.
Q. And he goes on to state, "Studies of clinical
data tend to confirm
the relationship between heavy and prolonged tobacco smoking and incidence
of cancer of the lung;" correct?
A. That's what it says.
Q. Now this was almost a year before the Frank Statement;
correct?
A. Yeah.
Q. And in the Frank Statement, RJR said that its
product was not
injurious to the health of its users; correct?
A. Yeah. I believe what they said is they didn't
believe that it was.
Q. And of course cancer is injurious to people's
health; isn't it?
A. Sure is.
Q. Kills people; correct?
A. It can.
Q. And Dr. Teague goes on to say, under "RECOMMENDATIONS"
"It is recommended that this preliminary, broad
survey of cancer
research be supplemented by complete, detailed surveys of the individual
topics discussed above." Correct?
A. Yes. Uh-huh.
Q. "Such surveys should be made at frequent and
regular intervals in
the future so as to make current developments properly available to
interested persons." Correct?
A. Yes.
Q. And an interested person would be a user of the
product; correct?
A. I don't know who -- an interested person could
be somebody who
smokes or it could be something else he's referring to. Could be he's
referring to people in the company. I don't know who he's referring
to as
"interested persons."
Q. Certainly could be your customers; correct? And
by "your," I mean
RJR's customers.
A. Yeah, could be. But it seems to me what he was
doing here was doing
a survey of available medical literature on this subject and summarizing
it. It's not clear to me why the company would publish public medical
literature on research into cancer to smokers.
Q. Do you remember --
A. It's already publicly available.
Q. Have you ever done a survey of your smokers and
say, "How many of
you read the medical literature?"
A. No.
Q. Would it be fair to state, sir, that you would
find very, very, very
few consumers would be reading the medical literature?
A. I think that's true.
Q. And would it also be fair to state that the company
has a duty to
tell the public about what it knows about its product?
MR. WEBER: Let me object on asked and answered.
We went through that
yesterday, Your Honor.
THE COURT: It has been asked and answered.
Q. Let me ask it another way. Having in mind your
testimony that the
company has such a duty, do you know if RJR ever put out at regular
intervals any type of surveys of the medical literature so that its
consumers would know in one place what RJR knew?
MR. WEBER: Let me object to the beginning of that
question because it
attempts to summarize a bunch of testimony from yesterday. I mean the
remainder is all right, Your Honor.
THE COURT: No, I think the question is okay. You
may answer that.
*21 MR. CIRESI: You may answer.
THE WITNESS: Could you please repeat --
MR. CIRESI: Can we have the question back, please?
(Record read by the court
reporter.)
A. No, I don't -- I don't believe the company has.
Q. And if you go on to the next page, sir, Dr. Teague
is stating that
it's recommended that all tobacco additives, flavorants and humectants
used
by the company be examined carefully with respect to their possible
roles
as carcinogens or carcinogen- producing agents; correct?
A. Yes.
Q. Do you know if RJR ever did that?
A. We have toxicologists internal to the company
that review on a
continuing basis all of the additives in -- in the product. That list
has
been provided to Health and Human Services, all the additives that
are in
the products, since the mid-'80s. There was a blue ribbon panel of
toxicologists on an industry-wide basis that evaluates additives. You
know,
I think we do -- I know we do a lot of work relative to additives.
In terms
--
Q. In the 1980s you said?
A. Started --
Well I know for sure it started in the -- in the
early 1980s, that I'm
sure of. I don't know what the company did relative to that prior to
that
because I have no experience relative to this issue prior to that.
But in
the early '80s I know we did. That's when I became a plant manager
and
became familiar with the methodologies and so forth that we were using
in
the company.
Q. Did RJR provide that information to the public?
A. Provide what information?
Q. Its knowledge of carcinogens in the additives
and flavorants and
humectants.
A. I don't know of any carcinogens that we have
in flavors and
additives and humectants and all that sort of stuff, and if there is
any, I
don't think we ever published that list to -- to the public. But we
published a list of additives in 1994.
Q. Nineteen --
A. Ninety-four.
Q. And what caused the publishing of those additives
in 1994?
A. A decision by the industry to publish them.
Q. After the filing of this lawsuit; wasn't it?
A. I don't know. When was it --
I'm not sure when this lawsuit was filed. I don't
think it had anything
to do with this lawsuit.
Q. Okay. Now you say you formed a blue ribbon panel;
is that right?
A. It is my understanding that there is an outside
panel of
toxicologists that evaluate additives that are used in cigarette products.
Q. The entire industry got together with a blue
ribbon panel of their
own toxicologists; correct?
A. No.
Q. Isn't that what you said?
A. Our own toxicologists? No. My -- my understanding
is that there --
there is or has been a panel of outside toxicologists that evaluate,
as a
check on our own internal toxicologists, the additives that are used
in the
products.
Q. Oh, all right. So you got outside experts and
had a blue ribbon
committee to look at additives; is that right?
A. To evaluate or oversee what we're doing relative
to additives in
addition to our own scientists.
*22 Q. Do you know how many Surgeon General reports
there have been
since 1964?
A. '64 and '88, I guess a couple more. I'm not sure
how many.
Q. Do you know if there's been in excess of a dozen?
A. I have no idea.
Q. No idea.
Regardless of how many there are, the industry never
convened a blue
ribbon panel after any of those Surgeon General's reports to determine
what
that blue ribbon panel would say on whether smoking caused disease;
did it?
A. No.
Q. Right up to today it's never done that; has it,
sir?
A. That's right.
THE COURT: Counsel, I think we'll take a short recess.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor.
BY MR. CIRESI:
Q. Mr. Schindler, this blue ribbon committee that
looked at additives,
you said it was in the '80s?
A. Yes. I think they started somewhere in the mid-'80s.
Q. They don't look at the additives in the paper;
do they?
A. I'm not sure.
Q. They don't look at the additives in the filter;
do they?
A. I'm not sure. They may. I'm just not sure if
they do or not. I know
about tobacco -- I'm not --
I'm just not sure whether or not they look at paper
or filters. They
may.
Q. They don't test under pyrolysis conditions; do
they?
A. I don't believe so.
Q. They have no idea what happens to those additives
and what type of
hydrocarbons are formed when they're subjected to the temperatures
that
tobacco is when it's smoked; correct?
A. I really don't know what the scientific regimen
is that is used by
these folks. I know they're toxicologists, professionals in the field.
Q. But they do not test the additives under the
conditions that they're
subjected to in smoking a cigarette; do they, sir?
A. I do not know the answer to that question.
Q. Now in 1959 you are aware, are you not, that
RJR was aware of many
carcinogens in its smoke that had a distinct possibility would have
a
carcinogenic effect on the human respiratory system.
A. I believe the company was aware there were a
lot of compounds -- lot
of people were -- that were potentially carcinogenic, that were in
the
cigarettes.
Q. That would have -- that would have a distinct
possibility that they
would have a carcinogenic effect on the human respiratory system; correct?
A. I don't know about your specific use of the word
"distinct
possibility." I am aware or have been made aware that the company was
aware
that there were compounds in cigarettes that were being identified
that
were potentially cancer-causing, were carcinogens.
Q. Well if they did have a distinct possibility
of having a
carcinogenic effect on the respiratory system of a human being, that
would
be a health hazard; wouldn't it?
A. I'm not sure how to evaluate the term "distinct
possibility." That
says they may or they may not. I don't know what "distinct possibility"
means.
*23 Q. Can you direct your attention to Exhibit
12418. This is a
memorandum --
A. Is that -- excuse me. Is that 12 --
Q. 418. I'm sorry.
A. All right.
Q. Do you have it, sir?
A. Yes, sir.
Q. If you look to the back -- last page, you'll
see that's a memorandum
from Dr. Alan Rodgman --
A. Yes.
Q. -- to Mr. Kenneth H. Hoover. Do you see that?
A. Yes.
Q. Dated November 2nd, 1959.
A. Yes.
Q. "THE OPTIMUM COMPOSITION OF TOBACCO AND ITS SMOKE;"
correct?
A. Yes.
Q. And in this -- strike that.
Did you know if Dr. Hoover or Mr. Hoover was a research
director at
RJR?
A. I --
No, I didn't know Dr. Hoover. I know Alan Rodgman.
Q. And he was in the research and development department;
correct?
A. Yes, Dr. Rodgman was in research.
Q. And we've seen some of Dr. Rodgman's memos yesterday
relating to
nicotine; correct?
A. Yeah, sure did.
Q. Now in 1959 Dr. Rodgman reported to Mr. Hoover
concerning the
presence of carcinogenic compounds in RJR's tobacco smoke; correct?
A. I --
Yeah, I guess that's what's in here.
Q. And you see in the first paragraph that there's
a reference to the
fact that in 1954 the first report of the presence of benzopyrene in
tobacco smoke was published?
A. Yes.
Q. And that was a carcinogenic or cancer-producing
polycyclic
hydrocarbon; correct?
A. That's what this says.
Q. Do you know what a polycyclic hydrocarbon is?
A. Nope. I mean I've heard the term, but I'm --
as I pointed out
yesterday, I'm not a scientist.
Q. Do you know if they're highly carcinogenic?
A. I -- you know, I --
No. I mean I -- well I've -- I guess it depends
on dosage level and
exposure.
Q. Have you heard that they're highly carcinogenic?
A. I think I heard that they could be.
Q. Okay. And if someone was subjected to them over
20, 30 years on a
daily basis, is that what you're talking about as dose and exposure?
A. I'm not a toxicologist.
Q. Well you --
A. I -- I --
You're asking me if -- what happens if somebody
is exposed to a
polycyclic hydrocarbon over 20, 30 years in the form that it comes
out of
cigarettes, what happens to them. I don't know.
Q. That's not what I asked you.
A. Okay.
Q. You used the term "dose and exposure." I simply
asked a very simple
question. Did you mean by that, "dose and exposure," someone who is
exposed
to them over 20 or 30, 40 years on a daily basis?
A. No.
Q. You didn't.
A. I didn't mean that.
Q. Okay. What did you mean by the term "dose and
exposure?"
A. Well the toxicologists use that term, that the
risk in something has
to do with the amount you get or the dose.
Q. Okay.
A. Risk is in the dose. That's sort of a fundamental
principle, I
guess, that toxicology starts with. At least I've been told that by
toxicologists.
Q. So if someone is subjected to a dose daily during
the day of a
carcinogen, that's a dose element; correct?
A. Yes.
*24 Q. And if somebody is exposed to that over 10
or 15 or 20 years,
that's an exposure to it; correct?
A. Yes.
Q. And those are two terms you've heard from toxicologists;
correct?
A. Yes.
Q. And the more they're exposed to doses, the more
likely they may
contract cancer; correct?
A. Could be.
Q. Now directing your attention to Exhibit 12418,
do you see where Dr.
Rodgman then reports that since 1954, approximately 60 similar compounds
--
A. No, I --
Where are we?
Q. First paragraph. I'm sorry, sir.
A. Just a minute.
Q. Do you have it?
A. "In 1954 the first report" -- is that where --
Where are we? You're at the very first paragraph
under "HISTORICAL?"
Q. I am indeed.
A. Okay.
Q. Right where we were. Do you see it?
A. Like I said, you are more familiar with these
things than I am. It
takes me a little time to catch up.
Q. Do you think I should be more familiar with the
history of your
company with regard to the hazards and health than --
A. You are more --
Q. Excuse me, sir.
-- than the CEO of the company?
A. You are more familiar with these documents than
I am. I'm just
trying to stay with you here.
Q. How many years have you been with this company?
A. Twenty-four years in May.
Q. So you think that I should be more familiar with
your own company's
documents which bear upon safety and health than someone who's been
with
this company and who is the CEO and has been there for 24 years?
A. Mr. Ciresi, I am talking --
MR. WEBER: Let me -- let me object. First, it's
getting argumentative,
and he also asked it once, Your Honor.
THE COURT: Okay. It is argumentative.
MR. CIRESI: I'll withdraw the question.
BY MR. CIRESI:
Q. Direct your attention, sir, to the first paragraph.
See the last
sentence?
A. "Since then...?"
Q. Correct. Do you see it?
A. Yeah.
Q. "since then, approximately 60 similar compounds
have been isolated
from the smoke of cigarettes." Correct?
A. Right. That's what it says.
Q. Similar to benzopyrene; correct?
A. Similar -- similar to benzopyrene. "Since then,
approximately 60" --
Yeah, okay.
Q. Is that a fair statement?
A. Yeah.
Q. Okay. In the next paragraph it states that eight
of those polycyclic
hydrocarbons were isolated from the smoke, are known to produce cancer
in
mice. Correct?
A. Yes, that's what it says.
Q. "Another five or six are suspect as cancer-producing
agents in
laboratory animals." Correct?
A. That's what it says.
Q. And you go down to the next paragraph. "There
is no evidence that
any of these compounds will produce cancer in man. Nonetheless, there
is a
distinct possibility that these substances would have a carcinogenic
effect
on the human respiratory system. Medical experience has shown that
man
responds to various chemical substances in the same manner as experimental
animals. It is there -- It follows therefore that it would be better
for
the consumer if cigarette smoke were devoid of such compounds." Do
you see
that?
*25 A. Yes.
Q. Do you agree with that statement?
A. I think what Dr. -- yeah, I would --
Dr. Rodgman is saying that if you have compounds
in cigarettes that
have potential for risk to a smoker, and if you could get them out,
it
would be a good idea.
Q. Do --
A. And I would agree with that.
Q. And in Exhibit 18905, which was the Hill &
Knowlton document, it was
stated that the industry would remove such compounds; correct?
A. Yeah, I seem to remember there were references
in that PR document.
Q. And RJR never removed such compounds; did they?
A. I believe back there they tried various times
and were unsuccessful,
and that's how the whole effort on reducing risk in cigarettes with
public
health people and the industry finally turned to general reduction
of
compounds, because no one was successful at selective elimination.
So basic
principle that anybody could land on back in the '60s was general reduction
of tar and other compounds across the board as opposed to trying to
target
or selectively remove something, because --that was tried, my
understanding, in --
The company back in the '50s and early '60s tried
that and they were
unable to be successful.
Q. Is your answer no?
A. Yes.
Q. Thank you.
Did you ever tell the public --
MR. WEBER: Your Honor, I'm going to object to the
sarcasm and snide
comments and the smiling when the witness is answering. I think it's
inappropriate.
THE COURT: "Thank you" is not what I would consider
a snide comment.
Q. Once again, sir, if you don't understand a question
that I ask you,
please tell me.
The last question was: Did RJR ever remove such
compounds. "Yes" or
"no."
A. No.
Q. Did you ever tell the public that you found those
comments --
compounds and were not removing them?
A. No.
Q. If we go, then, to the next paragraph. "As described
in RDR, 1956,
No. 9" --
Do you know what that is?
A. An RDR?
Q. Yes.
A. No.
Q. Isn't that nomenclature for research and development
memoranda of
the RJR Tobacco Company?
A. I just told you, I don't know what RDR -- RDR
refers to.
Q. Okay. "As described in RDR, 1956, No. 9, we in
the R. J. Reynolds
Tobacco Company Research Department corroborated the published findings
with respect to 3,4-benzpyrene, obtained this compound in crystalline
form,
and positively identified it as a constituent of cigarette smoke on
the
basis of its chemical and physical properties. Some thirty-odd polycyclic
hydrocarbons have since been similarly characterized in these laboratories.
Of these, eight are carcinogenic in mouse epidermis. Cholanthrane,
a potent
carcinogen, is one of three not yet reported by other investigators."
Do
you see that?
A. Yes.
Q. That means it wasn't known to anybody else; correct?
A. You know, that's what it says in this memo.
Q. Did RJR ever publish that information at that
time?
A. I don't know.
Q. If you go on to page three of this memo. Again,
sir, this is back in
1959; correct?
*26 A. Yes, sir.
Q. This is the "DISCUSSION" section under Roman
numeral III?
A. Yes.
Q. And I'd like to direct your attention about halfway
through that
where it says, "Cigarette smoke should contain...." Do you see that
sentence?
A. Yes, I've got it.
Q. "Cigarette smoke should contain as little as
possible (preferably at
the zero level*) of the polycyclic hydrocarbons, should possess
satisfactory flavor to please the consumer, and should contain sufficient
nicotine to supply the necessary requirements of the smoker with respect
to
this compound." Do you see that?
A. Yes, I do.
Q. And that's the physiological effects that's being
referred to there
of nicotine; correct?
A. I don't know what Dr. Rodgman is referring to
in this 1959 memo.
Q. Then you wouldn't know if he's referring to the
pharmacological --
A. I don't know what he's referring to here.
Q. Do you see the asterisk after "zero level?"
A. Yes.
Q. And if you go down to the bottom, you see that
it states, "We
consider the zero level to be impossible to achieve as long as the
combustion temperature of the cigarette is greater than 700 degrees
Centigrade?"
A. Yes.
Q. And that's the level at which tobacco burns in
a cigarette; isn't
it, sir?
A. I'll take your word for it. I don't personally
know the temperature
that tobacco -- a cigarette burns at.
Q. You've never asked that of your scientists?
A. No.
Q. Have you asked your scientists what happens under
pyrolysis to the
additives and compounds in the cigarette when they're heated at that
level?
A. No, I haven't.
Q. Have you asked whether or not additional polycyclic
hydrocarbons are
formed?
A. No, I haven't.
Q. Did RJR in 1959 say to the public that it's impossible
to achieve
zero carcinogens in its cigarettes?
A. No, not that I know of.
Q. It never has done that; has it, sir?
A. Not that I know of.
Q. And if you go back up to the second full paragraph
under Roman
numeral III, and specifically the last sentence, do you see there where
Dr.
Rodgman is suggesting a threshold level of nicotine delivery?
A. No. You're talking about "...should yield nicotine
in the smoke in
an amount ranging from 1.5 to 2.0?"
Q. Yes.
A. I --
He's talking about a range of nicotine. I don't
understand where that's
any threshold.
Q. Do you have any idea why RJR would want a range
of nicotine?
A. I have no idea what Dr. Rodgman was referring
to in this memo.
Q. Do you know, if it gets above a certain range,
it may have a toxic
effect?
A. I imagine you could get above a certain range
of a lot of things and
get a toxic effect, so I would think that nicotine or something would
have
-- could be toxic in that sense.
Q. If it got below a certain range, would it not
have a pharmacological
effect?
A. Would it not? I don't know. I -- this is --
I don't see where this is about threshold or pharmacological
effect or
toxicity or anything.
*27 Q. If it got below a certain range, would it
have no
pharmacological effect?
A. I have no idea.
Q. So since you have no idea, you don't know if
the cigarettes were
designed to have a threshold level of nicotine; do you?
A. I've never heard anybody talk about threshold
levels --
Q. And you --
A. -- other than these couple documents. But in
my experience in the
company, running a plant, running manufacturing, interacting with R&D
people, I never heard anybody talking about we've got to get to some
threshold level. In 24 years I haven't heard that.
Q. Can you direct your attention, sir, to Exhibit
18187.
A. Yes.
MR. CIRESI: Your Honor, would it be appropriate
to take a short break?
THE COURT: Would you like to?
Why don't we take a short break. And don't go too
far.
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. Schindler, can you direct your attention
to Exhibit 18187.
A. Yes, sir, I'm there.
Q. That would be in volume two. Do you have it?
A. Yes, I'm there.
Q. Now do you see that this is a document entitled
"THE SMOKING AND
HEALTH PROBLEM -- A CRITICAL AND OBJECTIVE APPRAISAL?"
A. Yes.
Q. And it's by Dr. Rodgman in 1962?
A. Yes, it is.
Q. Have you read this document before?
A. I've seen the document. I have not read the whole
document, no.
Q. Now if you direct your attention to the bottom
of the first page,
the second-to-the-last paragraph.
A. "Although" -- it starts with "Although," is that
where you are?
Q. Yeah. Are you there?
A. Yes.
Q. "Although the major part of the sales of this
Company consists of
cigarettes, what the Company sells is cigarette smoke." Do you see
that,
sir?
A. Yes.
Q. Do you agree with that?
A. It's sort of --
I don't know if I agree or disagree. We sell cigarettes
and people
smoke cigarettes. It's kind of a -- I --
I view that we sell cigarettes. I've never viewed
the business that we,
in my mind, sell cigarette smoke. I've always viewed we sell cigarettes
that people smoke.
Q. And what's in the smoke is nicotine and tar;
correct?
A. There's tar and there's nicotine and a bunch
of other things.
Q. And the "bunch of other things" are polycyclical
hydrocarbons and
other types of hydrocarbons that are grouped under the name tar; correct?
A. Yes.
Q. And in the next paragraph it says, "During the
past two decades,
cigarette smoke has been the target of a host of studies relating to
ill-health and particularly to lung cancer." Do you see that?
A. Yes.
Q. "The majority of these studies incriminate cigarette
smoke from a
health viewpoint." Correct?
A. Yes, that's what it says.
Q. And did Philip Morris advise the smoking public
of that in 1962?
A. I'm R. J Reynolds.
*28 Q. Excuse me. R. J. Reynolds.
A. No, not of this.
Q. Do you know if Philip Morris did?
A. I wasn't working for Reynolds in '62. I don't
know about Philip
Morris. I have no idea that Philip Morris did anything.
Q. Do you know if The Tobacco Institute did, --
A. I have --
Q. -- which was supported by all of the cigarette
manufacturers?
A. I have no knowledge that the industry in 1962
wrote a report that
says science reports that cigarettes may cause cancer.
Q. You know of no such --
A. I don't know of any ad like that.
Q. In 1962 did Philip Morris -- or excuse me --
did RJR state that the
amount of evidence accumulated to indict cigarette smoking as a health
hazard is overwhelming and the evidence challenging such an indictment
is
scant?
A. No, I don't believe that R. J. Reynolds said
that.
Q. Did R. J. Reynolds say that in 1988?
A. Not that I recall.
Q. Did it say it in 1998?
A. No, not that I know of. No.
Q. Can you direct your attention to page seven of
this memo, "The
Evidence to Date."
"Obviously the amount of evidence accumulated to
indict cigarette smoke
as a health hazard is overwhelming. The evidence challenging such an
indictment is scant." Do you see that?
A. Yes, I do.
Q. Have you ever seen that before?
A. Yes, I think I've seen that before.
Q. When did you first see it, sir?
A. Oh, I -- I can't give you a precise date. It
was somewhere, as I've
said before, in the last year and a half. This process of getting involved
in litigation has unfolded, and through that whole process I've seen
various documents along the way.
Q. Did you tell Mr. Goldstone before he testified
in Congress about a
month ago that back in 1962 RJR knew that the amount of evidence
accumulated to indict cigarette smoke as a health hazard was overwhelming?
A. I don't recall --
No, I didn't tell Steve about this document in 1962.
Q. Do you know if anybody told Mr. Goldstone that?
A. I have no idea.
Q. Can you direct your attention, please, to page
13 of the memo.
A. Yes.
Q. And if you move down to where there's a paragraph
sign, "Members of
this Research Department...." Do you see that?
A. Yes, I do.
Q. Okay. "Members of this Research Department have
studied in detail
cigarette smoke composition," and then there's some references. Do
you see
that?
A. Yes.
Q. And those references are to the back of the document;
correct, sir,
where there's a bibliography?
A. Yes.
Q. "Some of these findings have been published....
However, much data
remains unpublished because they are concerned with carcinogenic and
cocarcinogenic compounds." Correct?
A. That's what it says.
Q. And it then cites to certain documents in the
bibliography; correct?
A. Yes.
Q. So that RJR in its research department had studied
in detail smoke
composition and found carcinogenic or cocarcinogenic compounds and
they
didn't publish it because of that; correct?
*29 A. I have no knowledge that they didn't publish
it. It says here
some -- some things had remained unpublished. I don't know if a week
later
they published. I have no idea. I --
I know the Surgeon General, I believe in '64, I've
heard had paid
compliments to Reynolds for helping in terms of discovering the compounds,
or some of them in cigarettes, when they published the '64 Surgeon
General's report. So I don't know if they changed their point of view
on
this afterwards or not.
Q. Did RJR --
A. But the Surgeon General seemed to appreciate
it.
Q. Did RJR in 1964 turn over all of the documents
that have been
disclosed in this case to the Surgeon General, sir?
A. No.
Q. And what Dr. Rodgman is reporting is that these
findings weren't
made public because they were concerned about carcinogenic and
cocarcinogenic compounds; correct? That's what he reports.
A. That's what he says.
Q. And this was, what, eight years after the Frank
Statement; correct?
A. Yes.
Q. Where your company represented that it believed
the products we make
are not injurious to health; correct?
A. That's right.
Q. And where they represented to the public that
they accepted an
interest in people's health as a basic responsibility, paramount to
every
other consideration in our business.
A. That's right.
Q. And where they stated we have -- always have
and always will
cooperate closely with those whose task it is to safeguard the public
health; correct, sir?
A. That's what it says.
Q. They didn't meet any of those; did they?
A. I think they were cooperating with the public
health people, or the
Surgeon General wouldn't have complimented the company for helping
discover
some of these compounds that they used in the Surgeon General's report.
Q. Didn't turn over all the documents; did they,
sir? You just said so.
A. No, they didn't turn over all the documents.
Q. So they decided what they would and wouldn't
turn over regarding
what they knew about their product; is that right?
A. I don't know what was going on here.
Q. Well let's see what Dr. Rodgman says, if we go
to the next paragraph
-- or the next sentence. "This raises an interesting question about
the
former compounds." And there he's talking about the carcinogenic or
cocarcinogenic; correct?
A. I guess so.
Q. "If a tobacco company pled 'Not guilty' or 'Not
proven' to the
charge that cigarette smoke (or one of its constituents) is an etiological
factor in the causation of lung cancer or some other disease, can the
company justifiably assume the position that publication of data pertaining
to cigarette smoke composition or physiologic properties should be
withheld
because such data might affect adversely the company's economic status
when
the company has already implied in its plea that such etiologic effect
exists -- that no such etiologic effect exists?" Do you see that?
A. Uh-huh. Yes.
Q. And at this point in time RJR had pled not guilty
and not proven;
hadn't they?
*30 A. I don't know. I don't know what case --
Are you talking about court cases, or --
Q. I'm talking about whether smoking causes --
A. Oh, I'm sorry.
Q. -- lung cancer.
A. I thought -- I thought you were talking about
litigation. Yes, I
think --
Yeah, the company's position was the causal linkage
wasn't proven, or
whatever, back in this timeframe, I guess. I wasn't here in '62.
Q. Still does today; doesn't it?
A. Still what?
Q. Says that it's not proven.
A. Well today the company's position, my position,
is that if you
smoke, if people smoke, they have an increased risk of certain diseases.
Q. Does smoking cause lung cancer?
A. It may.
Q. Does it cause lung cancer?
A. I don't know for sure, but I believe it may.
I believe the risk is
significant, and I believe we have managed this company in a way to
design
products or improve products to reduce the risk associated with smoking,
and I'm proud of it.
Q. Sir, does smoking cause lung cancer?
A. I don't know.
Q. Thank you.
Has RJR said smoking causes lung cancer?
A. No.
Q. So that they are still saying, some 35 years
or 36 years after this
memo, "not proven;" aren't they?
A. Well they're saying that the risk is there, and
yes, it is not
proven in the discrete scientific sense backed up by lab studies, backed
up
by the causal mechanism in -- to go from the risk to the cause in
cigarettes, that's right.
Q. Is the answer to my question yes?
A. Yeah.
Q. Thank you.
And for 36 years, until this lawsuit, information
was withheld;
correct?
A. No, that's not correct.
Q. Did the documents in this case -- were they provided
to any public
health authority before they started coming out in this case, sir?
A. I don't know.
MR. WEBER: Let me object -- let me object to that,
first, Your Honor.
The question implies some obligation that hasn't been proven.
THE COURT: It certainly does. You may answer.
MR. CIRESI: Can you answer the question?
THE WITNESS: Can you repeat the question?
MR. CIRESI: May I have the question back, please.
(Record read by the court
reporter.)
A. I don't know.
Q. Did you ask?
A. No.
Q. If they had come out back in 1962 or any point
up to the time they
came out, do you think they may have affected adversely the company's
economic status?
A. I have no idea.
Q. Well they've certainly affected the company's
economic status as of
today; haven't they, sir?
A. I don't know if they have or not.
Q. And the reason you don't know if they have or
not is because your
company, among others, is seeking immunity in Congress for past actions;
correct?
MR. WEBER: Same objection as earlier on that point,
Your Honor.
THE COURT: Well you may answer that.
A. I believe what we're seeking in Congress is for
society to come to
grips with cigarettes and how to establish them in our society in a
way
that is acceptable in terms of regulatory scheme, in terms of how the
market, and all aspects of its existence in our society. That's what
we're
after. And --
*31 Q. You --
A. -- part of that is that there be some limits
on liability relative
to all this litigation.
Q. You're seeking immunity for past conduct; aren't
you?
MR. WEBER: Asked and answered, Your Honor.
THE COURT: It's not been answered.
A. I -- you know, I don't believe it's immunity
in that sense.
"Immunity" to me implies that there's -- you know, there aren't going
to be
any lawsuits, there aren't going to be any suits in the future. And
there
will be suits based on the way this proposal is today.
Q. Oh, you mean total and absolute and complete
immunity is the only
type of immunity you recognize; is that right?
A. Was that a question?
Q. Yes.
A. I'm giving you my answer to the way I understand
the agreement.
Q. You're seeking immunity in Congress. "Yes" or
"no," sir.
A. I believe --
MR. WEBER: Asked and --
Objection, asked and answered on the last one, Your
Honor.
THE COURT: It hasn't been answered.
A. I believe --
You're asking me my opinion. I believe what is being
asked for are
limitations relative to litigation.
Q. Okay. And a limitation --
A. Given the payments that will be made in the context
of this
regulatory scheme and the total package to establish the rules in our
society as to how cigarettes will continue to exist.
Q. A limitation on liability is an immunity to the
extent it's granted.
A. Well you're the lawyer. I'll take your word for
it.
Q. So the answer is yes, sir?
A. Yes.
Q. Thank you.
A. I'm not a lawyer.
Q. And you say for the monies you're going to be
paying. You're not
going to be paying. The smokers are going to be paying; aren't they?
A. Any lawsuit we lose that would require us to
raise our prices,
smokers would be paying.
Q. Yes.
A. The only --
Q. And --
A. -- place we get money is from selling our product.
That's the only
place a business gets any money is from selling their product. So if
you
lose a lawsuit and it causes your prices to go up, smokers will pay
more
because that's the only place we get money from, is selling product.
Q. Well you could sell your food group and take
that money; couldn't
you?
A. That's, I believe -- again not a lawyer -- but
that's bankruptcy.
And --
Q. Bankruptcy. Just to sell part of the business
is bankruptcy?
A. I think you have shareholders, and if you sell
off a part of the
business or distribute it -- the money to some -- to someone other
than the
shareholders, I think that surely gets into the realm of bankruptcy,
as I
understand it.
Q. Well RJR has been bought and sold a number of
times; hasn't it?
A. Yes.
Q. And parts of the business have been bought and
sold; correct?
A. And they have been transactions with shareholders.
Q. And how many times have you gone into bankruptcy
when you bought and
sold businesses?
A. You're talking about transaction with the shareholders
right now.
I'm talking -- you --
But your first question is why don't you just sell
off your other
assets and give that money to people that win lawsuits.
*32 Q. Sir --
A. I think that's different.
Q. Oh. An asset can be sold by the company; can
it not?
A. You have the shareholders to deal with.
Q. Right. But an asset --
A. They own the company.
Q. And an asset --
A. I think they would care if you sold off their
asset and didn't give
them any money.
Q. Sir, an asset can be sold by the company to satisfy
its debt. "Yes"
or "no."
A. Yes.
Q. If a judgment is entered against the company,
it is a debt against
the company. "Yes" or "no."
A. Yes.
Q. The food group was purchased with tobacco money.
"Yes" or "no."
A. It was purchased with the consolidated cash flow
of the corporation,
which included, at that time, tobacco, Sea/Land Services, containerized
shipping, Del Monte, a bunch of different subsidiaries.
Q. And they all started with tobacco; correct?
A. I believe you're right.
Q. And if the assets of the food group were sold
to some other company,
the manufacturing facilities go with it; don't they?
A. Yes.
Q. The employees go with it; don't they?
A. Yes.
Q. And that business is operated by the new entity;
correct?
A. I would assume so.
Q. And those people keep working for that new entity;
correct?
A. Yeah.
Q. And what RJR would get would be money for that;
correct?
A. I believe so.
Q. And then that money could be used to pay its
debt; correct?
A. Still have some remaining shareholders to contend
with.
Q. They will indeed, sir. Shareholders who benefited
--
MR. WEBER: Let me object to the commentary, Your
Honor. We're getting
very argumentative here.
THE COURT: Well the "will indeed" is commentary,
counsel. That will be
stricken.
MR. CIRESI: I withdraw it, Your Honor. I apologize.
Q. The shareholders have benefited from this company
selling product,
being cigarettes, to the public; correct?
A. Yes.
Q. And they have benefited based upon the management's
decisions over
the last 40 years; correct, sir?
A. Yes.
Q. Those decisions which bore upon the safety and
health of the
American public; correct, sir?
A. Yes.
Q. And they had to discharge the duties that you
talked about and what
we see in the Frank Statement in accordance with the law; didn't they,
sir?
A. I --
You have to repeat that last one.
Q. Management was required to discharge its duties
in accordance with
the law; correct?
A. I believe, based on what I know and have experienced,
the management
of this company has abided by the law in discharging its duties.
Q. And under --
And under our system of justice, as you understand
it, if someone
doesn't comply with their duties under the law, they are held accountable;
correct?
MR. WEBER: I'm going to object again, Your Honor,
this is
argumentative.
THE COURT: Well you may answer that.
Q. Isn't that correct, sir?
A. If it is in a courtroom, between the lawyers
and the judge, the jury
would decide who's accountable, in violation of their duties. That's
the
legal system.
*33 Q. Yes. And if the company has not discharged
its duties under the
law, then, as you understand it, they are to be held accountable under
the
law; correct?
MR. WEBER: Same objection, Your Honor. In addition,
I'd add asked and
answered.
THE COURT: It's been asked and answered.
Q. Now from 1954 to 1998 your company has continued
to create doub