CROSS-EXAMINATION - DR. RICHARD HURT
JANUARY 30, 1998 STATE OF MINNESOTA
DISTRICT COURT COUNTY OF RAMSEY
SECOND JUDICIAL DISTRICT
File No. C1-94-8565
The State of Minnesota, by Hubert H. Humphrey, III, its attorney general, and Blue Cross and Blue Shield of Minnesota,
Plaintiffs,
vs.
Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, B.A.T. Industries P.L.C., Lorillard Tobacco Company, The American Tobacco Company, Liggett Group, Inc., The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc.,
Defendants.
TRANSCRIPT OF PROCEEDINGS
VOLUME 9, PAGES 1519 - 1774
JANUARY 30, 1998
CROSS-EXAMINATION - DR. RICHARD HURT P R O C E E D I N G S.
THE CLERK: All rise. Ramsey County District Court is now in session, the Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning." )
THE COURT: Counsel.
MR. BERNICK: Good morning.
DR. RICHARD D. HURT
called as a witness, being previously
sworn, was examined and testified as
follows:
CROSS-EXAMINATION BY MR. BERNICK:
Q. Good morning, Dr. Hurt.
A. Good morning.
Q. My name is David Bernick and I represent Brown & Williamson. I think I introduced myself to you at a break yesterday.
A. Yes.
Q. I'll be asking you some questions this morning. As I understand it, this is the first time that you've been testifying; correct?
A. That is correct.
Q. And this will be the first time you've been cross-examined; right?
A. That's correct.
Q. So you've become a grandfather, you're being cross-examined. Things are moving along.
A. Kind of scary, isn't it.
Q. I want to turn first to some of the testimony that you offered about when the industry had made public statements on various subjects over time. I tried to listen carefully and I counted a number of occasions on which you testified that the industry had not made public statements on various subjects. Do you recall your testimony?
A. I do, yes.
Q. For example, you were asked whether Philip Morris ever publicly stated that they thought of a cigarette as a dispenser of a dose unit of nicotine. Do you remember that?
A. I remember that.
Q. And there were other questions pertaining to whether, again, Philip Morris ever stated that they held an opinion, publicly stated they held an opinion as early as 1969 that nicotine was a drug. Do you remember that question?
A. I recall something like that, yes.
MR. CIRESI: Can we have a page number, Your Honor, when counsel references the transcript so we can follow along?
THE COURT: Do you have that available, counsel?
MR. BERNICK: Sure. That's page 1267, and the prior one was at page 1271.
BY MR. BERNICK:
Q. And indeed, repeatedly, as you testified concerning research regarding nicotine, I believe you were asked repeatedly whether public statements had ever been made by various tobacco companies regarding various aspects of nicotine research; correct?
A. I was asked questions like that, yes.
Q. Well throughout your testimony and virtually on every subject relating to nicotine research that you testified to; correct?
A. I -- I think that's correct, yes.
Q. Indeed, one of your themes was that there was internal discussion in the company documents about nicotine research that the companies hadn't stated publicly, hadn't revealed; correct?
A. The amount of information I saw about nicotine research that was contained in the internal documents was orders of magnitude greater than what was in the public domain.
MS. BERNICK: I move to strike as not responsive, Your Honor. My question was, I'll put it to Mr. Hurt again, whether the theme of his testimony was that there was internal information regarding nicotine research that had not been revealed by the tobacco companies.
MR. CIRESI: The answer was responsive, Your Honor.
THE COURT: Do you wish to respond again to that?
THE WITNESS: I think my response is correct.
THE COURT: Okay.
BY MR. BERNICK:
Q. I tried to listen carefully, and I don't think I heard you mention a single item of published research or published reviews sponsored by the tobacco industry. Did you mention any published research or published reviews on nicotine sponsored by the tobacco companies?
MR. CIRESI: I'm going to object to that as a misstatement of the evidence.
THE COURT: You can answer that.
A. I don't recall what I actually of all the things we talked about yesterday, we talked about a lot of different things, as far as specific items that you're referring to.
Q. I don't recall your testifying to a single public health recommendation regarding cigarette design. Did you?
MR. CIRESI: Objection, Your Honor. That wasn't the subject matter of his testimony, --
MR. BERNICK: Your Honor, I object --
MR. CIRESI: -- that actual design.
THE COURT: Counsel, just state your objection.
MR. CIRESI: Objection, outside the scope of direct.
THE COURT: Sustained.
BY MR. BERNICK:
Q. Dr. Hurt, did you testify regarding cigarette design and nicotine manipulation?
MR. CIRESI: Objection, outside the scope of direct.
THE COURT: Counsel, I think we're having trouble with your microphones, if you can adjust those, please.
MR. BERNICK: Mine?
CROSS-EXAMINATION - DR. RICHARD HURT THE COURT: Yours in particular.
MR. CIRESI: Can you hear? Is this all right?
THE COURT: I hope so. We'll get a -- we'll get a feedback, so --
MR. BERNICK: There was a question pending.
THE COURT: Maybe you should re-ask the question. I'm sorry to interrupt.
MR. BERNICK: Yes.
BY MR. BERNICK:
Q. Dr. Hurt, didn't you testify to what the cigarette companies were looking into by way of design of cigarettes for nicotine?
A. I reviewed a lot of documents that had to do with pH and pH manipulation, nicotine delivery, free base. I reviewed a lot of documents like that.
Q. And isn't it a fact that you didn't tell the jury of a single public health recommendation for what the companies should do regarding nicotine design and changing nicotine levels? Isn't that a fact?
MR. CIRESI: Objection, outside the scope of direct.
THE COURT: Okay. It is outside the scope of direct.
CROSS-EXAMINATION - DR. RICHARD HURT MR. BERNICK: Your Honor, we would seek to establish that the work that we did internally was driven by public health authority recommendations. That is the force of this examination.
THE COURT: Why don't you ask that question.
MR. BERNICK: Okay.
BY MR. BERNICK:
Q. Dr. Hurt, are you familiar with public health recommendations, recommendations made by public health authorities concerning design of nicotine in cigarettes?
A. I was aware of -- and actually it came through in the documents -- of discussions back in the '60s and '70s about those sorts of issues.
Q. And isn't it a fact that under direct examination, you didn't pursue any of those recommendations? We didn't hear about them; correct?
MR. CIRESI: Your Honor, objection, it's outside the scope of direct. It's the subject matter of another expert.
MR. BERNICK: The whole point, Your Honor, is it is outside the scope of direct. He didn't pursue it in his direct examination. That's what we're seeking to establish.
CROSS-EXAMINATION - DR. RICHARD HURT MR. CIRESI: Your Honor, that's a speaking objection.
THE COURT: All right.
MR. CIRESI: That is a subject matter of another witness.
THE COURT: Counsel, counsel, you're both speaking your objections. Just state your legal objection or I won't rule on it.
MR. CIRESI: Objection, outside the scope of direct.
THE COURT: Sustained.
BY MR. BERNICK:
Q. Are you familiar, Dr. Hurt, with the recommendations that were made by the public health authorities?
MR. CIRESI: Same objection, Your Honor. It's irrelevant.
THE COURT: No, you may answer that.
A. I think I just answered that. But there were things within the documents that had to do with public health recommendations.
Q. Did you take the time before you came here to testify to -- to actually go ahead and review the recommendations that were made by public health authorities concerning cigarette design?
CROSS-EXAMINATION - DR. RICHARD HURT MR. CIRESI: Objection, scope of direct.
THE COURT: You may answer that.
A. You know, I may have. There was a lot of things that I reviewed. I reviewed thousands of pages of documents. I've also been practicing over the last 20 years in this field. And so in preparation for this I reviewed a lot of different things and they're all not -- maybe not all right at the tip of recall.
Q. Well did you take the time to review recommendations that were made by the National Cancer Institute regarding nicotine and cigarette design?
A. No, I did not.
Q. Did you take the time to review what the Surgeon General of the United States had to recommend about nicotine and design?
A. I recall some things, but I -- I couldn't give you a specific answer.
Q. Did you take the time to take a look at the cooperative working group that was formed between the tobacco industry and members of the National Cancer Institute insofar as it related to cigarette design and nicotine? Did you take time to look at those?
A. In which year was that?
Q. Well do you -- do you -- are you trying --
A. No, I just -- I need a point of reference because I reviewed a lot of information and I reviewed a lot of documents, and I just need a point of reference. If it was in the '50s, I may not have gone back to do that. There were references to a lot of things that go back over these past 40 years, and I may or may not have done that. I just can't remember exactly what the timeframe was.
Q. Sure. Let me see if I can refresh your recollection.
Are you familiar with an organization called the Tobacco Working Group?
A. That was with NCI, I think, but I -- that's my only recollection of that.
Q. Are you familiar with any organization or group that involved meetings between tobacco industry scientists and the National Cancer Institute to try to work on a safer cigarette? Are you familiar with those proceedings?
A. Yes, I am. I think that they -- they ended with the conclusion that one could not be designed; a safer cigarette, that is.
Q. Has that --
A. In fact that was the end result of those discussions of the working group, that they concluded that a safer cigarette could not be designed.
Q. And that was after how many years of research?
A. Some -- I think you mentioned, or maybe one of your colleagues mentioned, after 12 years of -- of work, I think that was part of one of the opening statements. I recall that's just a couple years ago. And I think the statement was made that the federal government decided to disband the -- the working group or there was some kind of --
Q. Do you know how much money got spent on that Tobacco Working Group?
A. No.
Q. No idea? Ten million, 20 million, 50 million?
A. No.
Q. Did you take a look at any of the proceedings of the Tobacco Working Group to see what they had to say about nicotine and cigarette design?
A. No. I don't -- again, I've looked at a lot of documents over a long period of time, and if I did see that, I couldn't -- I couldn't cite you chapter and verse. There was a lot of -- lot of information that's transpired over the last 40 years.
Q. Did you take the time, Dr. Hurt, when you talked about what was in our documents internally, the research that was reflected there and the ideas about nicotine, did you take the time to go take a look at the scientific literature, the articles and publication on the same subject at the same time to see if they were any different?
A. I did not do a direct comparison between what was in the scientific literature and what was in the internal documents. My impression of the internal documents was the depth of the information was very deep, it was very broad for a very long period of time. And -- and your company should know the most about your product. I mean that's what this is all about. If -- if a company is responsible and they act responsibly, they should know the most about their -- their product. And furthermore, when they find out it's hazardous, they should let the rest of us know.
Q. You said "impression." I think that's what you just said, that was your impression.
A. My impression of reviewing all of the documents. And -- and you have to think about impression as being kind of a global sort of thing.
Q. Global sort of thing.
A. So it's really a very large amount of information, and -- and that's -- that's what I reviewed.
Q. Before you came and got involved with the litigation process, I understand from your work that you had published a number of research articles; correct?
A. I did, yes.
Q. And you spent a good deal of your time as a researcher; right?
A. I did.
Q. And is it true that as a scientific researcher, there are fairly well established methods and expectations for scientific work before it's good enough to get published and shared?
A. First all it has to be submitted. But obviously the criteria that are -- that are used as reviewers for research vary from one reviewer to the other. But there are standards on that.
Q. Okay. And those standards are pretty important; that is, if you want a piece of research to see the light of day, you got to make sure that the data is gathered correctly; right?
A. Sure.
Q. It can't be biased data; can it?
A. Well some -- some data is biased. It would be better if it were not, yes.
Q. And that when you actually write up the research results, it's also part of the scientific process to fairly present the issues that remain, that haven't been resolved; correct?
A. It depends on which type of article's being written and -- and the subject matter as well as where it's being submitted, which journal. There's a lot of variability with that. But it -- it would be important, yes.
Q. Yes. But generally a scientist who writes an article according to proper scientific methods should acknowledge the limitations of the research that's been conducted and what's been found; true?
A. A lot of scientific writers obviously don't do that.
Q. But they should.
A. If it's done correctly, that's the way it should be done, yes.
Q. Okay. Now when you went from being a researcher and decided to work on this case, did you feel that the standards and methods that you had become accustomed to as a researcher were still standards and methods that you had to follow when you came in to testify in this courtroom?
A. I don't follow the question.
Q. Yeah. When you came to testify in this courtroom to the matters that you have spoken to, did you feel that you had to follow the same level of quality and standards here that you had tried to achieve in your research over the years, or was it a different standard that you brought to this courtroom?
A. Well I don't think it was a different standard, but when -- when you're a reviewer of other people's work, then you -- you take into account the totality of the work. Like if you're -- if I'm reviewing an article for somebody that's written an article and I'm reviewing it for a journal, then I review that article with all of the science in mind as well as the potential implications of the -- of the article, try to focus on the science, how well it's written. All of those factors go into -- to that. And that's basically the way I came into this, was pretty much -- I didn't know exactly what to expect at all, and I was overwhelmed by the information that is present in the internal documents about what was known that the rest of us didn't know.
Q. I guess what I'm getting at, and the reason I asked those questions, Dr. Hurt, is you told us about your impressions, your impressions about the state of knowledge that's reflected in the documents; correct?
A. Correct.
Q. But you never went ahead as a scientist and tested those impressions by actually taking a look and doing a direct comparison with the scientific literature; correct?
A. I did not do that.
Q. No.
Now I want to go through the first of these items here for a little bit this morning. Published research and reviews sponsored by the tobacco companies.
A. Okay.
Q. We'll see if we can refresh your recollection a little bit. And I'd like to begin -- I'd like to begin with a subject I think that you discussed, and I'm just -- all of this is going to be about nicotine. That's all I'm going to ask you about is nicotine.
A. Okay.
Q. So just get on the same page. That's what I'm going to be asking you about.
First let's talk about nicotine pharmacology, (writing on board) 'ology. You testified on direct examination concerning nicotine pharmacology; did you not?
A. I did, yes.
Q. Okay. Now in point of fact, in the area of nicotine pharmacology, isn't it true that American Tobacco company, one of my clients, American Tobacco Company has sponsored published research and reviews, published research and reviews concerning nicotine pharmacology since the early 1940's?
A. Could be. You know the one thing that was absent from all of these documents were American Tobacco Company documents. I didn't see any of those. I mean if I did, there weren't very many. And so far as the published literature is concerned, most of us, when we look at the published literature, look at -- at what we can review, and if there is a notation of where the publication was sponsored by or who sponsored -- who sponsored it, that usually is noted. I can't recall of one from The American Tobacco Company that I reviewed in my -- in my work, no. But I also didn't see any American company documents in this case, or at least there were very few.
MR. BERNICK: Your Honor, if I could, I move to strike as not responsive. I think it's a very simple "yes" or "no" question. And I'll put it to you again, Dr. Hurt.
THE COURT: I think it's sufficiently responsive.
MR. BERNICK: Well then maybe I wasn't being clear. I'll try again.
You understand, Your Honor.
THE COURT: Okay. I ruled on the question and the answer.
MR. BERNICK: All right.
BY MR. BERNICK:
Q. Dr. Hurt, isn't it a fact that The American Tobacco Company sponsored published research, articles, published research on nicotine pharmacology since the early 1940's?
MR. CIRESI: Objection, repetitious.
THE COURT: Sustained.
Q. Have you ever taken a look at the Medical College of Virginia published literature on nicotine pharmacology?
A. No. I mean I don't usually focus on an institution to try to figure out who's published what from where.
Q. Well I will --
Beyond the institution, let me just ask you about some individuals. Are you familiar with the publications on nicotine metabolism by Dr. Haag, H-a-a-g, beginning in 1940?
A. I may have seen something like that. But most of the time when we review things, we kind of go from contemporary time backwards, and that may have been buried in some of the references that I have seen, but I do not recall specifically reviewing an article by Haag, no.
Q. Well, but you --
A. That doesn't mean I didn't. Again, the -- when things come across my desk that are articles, I read them, and I don't always catalog them according to date nor person. I mean that's --
We review articles, and sometimes I keep them in files, sometimes I don't.
Q. Well you testified about what was in the company documents about nicotine pharmacology going back to the early 1960s. Do you recall that?
A. I could have said that, yes. I've reviewed documents about nicotine pharmacology back into the '50s from the internal documents also. There's a large number of documents.
Q. Okay. Let's take the 1950s. Did you take a look and see what Dr. Haag and what Dr. Larson, from the Medical College of Virginia, had published on those same subjects during 1950?
MR. CIRESI: Objection, relevance.
CROSS-EXAMINATION - DR. RICHARD HURT THE COURT: Well you may answer that.
A. No, I did not. It's -- if I did, it was in the mix of all of this.
Q. If I were to tell you that the Medical College of Virginia, with tobacco industry funding, had published upwards of 45 articles on nicotine pharmacology from 1940 to 1975, would you know, "yes" or "no" whether that was true?
MR. CIRESI: Objection to the form of the question.
THE COURT: Sustained.
Q. Can you tell us anything about publications by Dr. Haag, Dr. -- Dr. --
A. Larson.
Q. -- Larson or Dr. McKennis?
A. Not off of top of my head, no.
Q. Let me ask you about something else. Isn't it a fact, dealing with reviews, that the tobacco industry funded the publication of the Larson & Silvette textbook beginning in 1961?
A. I think that's correct, yes.
Q. Are you familiar with the Larson, Haag & Silvette textbook?
A. Yes.
MR. BERNICK: Your Honor, may I approach the witness?
Q. Do you recognize what I've handed you as the first volume of that text?
A. Yes, it is.
Q. Now there wasn't just one, there were four.
MR. BERNICK: May I approach -- approach the witness, Your Honor?
Q. There were four separate volumes over time that were turned out as part of that project; correct?
A. I think that's right. And when I checked them out of the Mayo Clinic library, the last time they'd been checked out was like 1970 or so. So it's --
These are present in our library like they are present in other people's library. So yes, I've seen these. But I can't remember if I checked all four of them out. I checked them out. But this is information that's -- that's in our libraries.
MR. BERNICK: Your Honor, I really would ask for an instruction to the witness to be a little bit more responsive. This is a cross-examination. I asked him a very simple question, which is whether there were four books, I had an answer that dealt with the library and with the last time that they had been checked out.
THE COURT: I think that's sufficiently responsive.
BY MR. BERNICK:
Q. Now those texts, Dr. Hurt, those texts, they're all about tobacco research; aren't they?
A. That's what it says, yes. Experimental clinical studies. That's the title of all of them.
Q. Is it true --
Is it true that at the time they were issued, they were regarded as authoritative texts insofar as they reviewed and collected literature on tobacco?
A. I don't know that for certain.
Q. Well they were authoritative enough to be cited in your own expert report; weren't they?
A. That's correct.
Q. Okay. I want --
A. I really did want to be as thorough as I could, but I did not read all four of these volumes. I mean --
So I reviewed them to the best of my ability, but I did not take the time to read them in detail.
Q. Okay. So --
A. So I would not infer that just because they were contained in my expert report, that I would view them as authoritative or expert.
Q. You did review these before you testified.
A. I reviewed some of them. I did not review them for detail.
Q. Did you review what they had to say about nicotine pharmacology?
A. I might have, but I -- I can't remember.
Q. Did you review what they had to say about the theory that people smoke for nicotine, nicotine titration?
A. I -- I really couldn't tell you.
Q. You reviewed the --
Did you review to see what they had to say, in a text sponsored by the tobacco industry, to see what they had to say about theories of addiction?
A. I recall reviewing that, but I couldn't tell you what the chapter and verse were.
Q. If you take a look at the first part of the first volume, if you could open that up for me, and as a matter of fact you can just look at the table of contents, I think that that would help out.
MR. CIRESI: Your Honor, we haven't had a proffer of the exhibit. We don't know the exhibit number and what rule it's being offered under.
THE COURT: Okay. Are you offering these as exhibits, counsel?
MR. BERNICK: I -- I think I may at some point in time. I was going to ask him some preliminary questions before I did.
MR. CIRESI: Then we object. I think --
THE COURT: I think now is the time. If you're going to offer them, offer them.
MR. BERNICK: Okay. We'll offer them, Your Honor, as a learned treatise.
MR. CIRESI: Under what --
As a learned treatise? No foundation.
THE COURT: Sustained.
BY MR. BERNICK:
Q. I think we've -- I will establish it again.
Dr. Hurt, at the time these were published, were they regarded as authoritative sources and reviews on the literature on tobacco?
MR. CIRESI: Objection, repetitious, asked and answered.
THE COURT: Sustained.
BY MR. BERNICK:
Q. If somebody were doing research at the time that these were issued in the 1960s and 1970s, would these have been regarded as reliable sources of information on the literature on tobacco?
MR. CIRESI: Same objections, Your Honor.
THE COURT: You may answer that.
A. I don't know. I wasn't even out of college in '68. Actually I was out of college in '66. I was in medical school in '68. And I don't recall seeing any of this in those -- those days.
Q. So before --
A. So I do not know the answer to your question.
Q. Before you testified about whether the industry knew something back in the 1950s and 1960s, knew something about nicotine that nobody else knew, did you take the time to see who was the authority on nicotine in the field at the time?
A. I assumed that the tobacco companies were the authority because this is their product. And they were because the documents say that. They knew more about this than anybody else in the world. In fact, there was one document that clearly said that: "We know more about our product than anyone else does."
MR. BERNICK: Your Honor, I move to strike as not being responsive. I asked him whether he looked to see who was the authority in the field.
THE COURT: It is non-responsive. It will be stricken.
THE WITNESS: Can you rephrase the question or ask the question again, because I don't think I understand it.
Q. As you went back in time in order to assess whether the tobacco companies knew something that nobody else did in the field, did you take the time to find out who were the authorities in the field and what did they publish?
A. Yes, I reviewed a lot of articles from people as far back as the 1920s having to do with addiction, yes.
Q. Okay. So as you reviewed all the articles going back into the '20s on addiction, who were the authorities in the 1960s with regard to addiction and tobacco and nicotine?
A. Well one name comes to mind is Lennox Johnston, who published on this in the late '50s or -- actually the late '40s, early '50s. That's one name that comes to mind. I couldn't tell you a whole bunch of others.
Q. What about Dr. Larson, what about Dr. Haag, what about Dr. Silvette, were they recognized authorities at that time?
A. I think from just the fact that they published this amount of information --
I recognize these books as being -- containing a lot of information about this, yes.
Q. Okay. And in fact, weren't those texts cited by the Surgeon General of the United States in 1964 when the first Surgeon General's report was issued?
A. I think they were, amongs a whole host of other -- other scientific issues, yes.
MR. BERNICK: Okay. At this point, Your Honor, I would offer those exhibits.
MR. CIRESI: Same objection under 803(18).
THE COURT: Sustained.
MR. BERNICK: Your Honor, we're offering for the --
I'll offer them for an additional purpose.
THE COURT: Okay.
MR. BERNICK: I'll offer them for the purposes of establishing what it is that the tobacco industry sponsored by way of published research and published reviews at the time.
THE COURT: That might be appropriate, through a different witness though, counsel.
MR. BERNICK: Well I believe this witness has discussed and testified to what the tobacco industry was doing over a 40-year period of time. Can I ask -- I'll put another question to him, try to lay some more foundation.
BY MR. BERNICK:
Q. Isn't it a fact that the tobacco industry sponsored a publication of these texts?
A. I'd have to look at them. You said it was that way, but I did not -- I did not --
Q. Take a look at the first one. Just open -- if you could just open the first one.
MR. CIRESI: Your Honor, I'm going to object to this form of question. It's inappropriate.
THE COURT: Counsel, I think you're going to have to move on. You will be allowed to reintroduce those through an appropriate witness.
BY MR. BERNICK:
Q. Let me just ask you, given the court's ruling, Dr. Hurt, can you testify today that there was anything that you saw in any of the tobacco company documents that you reviewed regarding nicotine pharmacology, nicotine pharmacology, that wasn't also set out in published articles and reviews at the same time?
MR. CIRESI: Objection.
Q. Can you testify to that as an expert today?
MR. CIRESI: Objection to the form of the question.
THE COURT: You may answer that.
A. I think the first thing that comes to mind is free base nicotine and how it can be affected by ammonia and other -- other compounds. That comes to mind.
Q. Well you're -- you're prepared to testify that there were things in tobacco company documents about free base nicotine which, at the time those documents were written, were not also in the scientific published literature?
A. There are things in the literature about free base nicotine, but -- for example, the Surgeon General's report of -- of 1988 had, I think, two pages about pH and nicotine, and that's -- that's the whole Surgeon General's report, and I saw hundreds of pages of documents to do with pH and free base nicotine that somehow escaped that review, which was a very comprehensive review of nicotine addiction.
Q. But did you take a look at the published scientific literature on free base nicotine as of that time in point?
MR. CIRESI: Objection, Your Honor, it's irrelevant.
THE COURT: You may answer that.
A. At the time that -- when the Surgeon General's report was prepared, the people that prepared that report did a very comprehensive review of the literature, as well as their own expertise and their own knowledge. And as I said, in that review, which was the state of the knowledge at that time about nicotine addiction, there were just a couple or three pages to do with -- with pH and with -- may have been only a few words about free base nicotine. And free base nicotine is central to the issue of the speed of delivery to the brain. And had it been so widely known, I would have expected the committee to have -- to have put that in the report, and it's not there.
Q. I'll put the question to you again. I don't think that -- either I wasn't clear or I didn't get a response.
The question is real simple: As of 1988 you looked at the Surgeon General's report; correct?
A. Yes.
Q. Did you take a look at the published scientific literature on free base nicotine as of that point in time to see whether there was anything in those tobacco company's documents that was not also in the scientific literature?
A. Well there are several parts of that question. So did I look at the literature that was in the Surgeon General's report?
Q. No, no, no. No, no. The published scientific --
CROSS-EXAMINATION - DR. RICHARD HURT The Surgeon General's report is a report issued by an organization with the United States government; correct?
A. Based on the published scientific literature.
Q. I understand.
A. That's what it's based on.
Q. I understand that.
Now did you -- did you go ahead to the scientific literature itself and do a literature search on free base nicotine to see what might be out there?
MR. CIRESI: Objection, repetitious.
THE COURT: Okay. I think the question has been answered.
MR. BERNICK: I really don't think -- I don't think so, Your Honor.
THE COURT: Counsel, I've ruled on the objection. Proceed.
BY MR. BERNICK:
Q. Let me ask you this, Dr. Hurt: If we went back to the 1960s and talked about nicotine pharmacology, is there anything that you saw in the tobacco company documents which you can say did not appear in the scientific literature at the time?
A. You know, I've reviewed thousands of pages. I can't recall one off -- off the top of my head. I reviewed a -- a lot of documents that were present, and they're just representative of the total volume of documents. I haven't reviewed all of the documents, but I --
Q. Is there --
A. Maybe you can say your question again, because I'm not --
Q. That's fine.
Did you take a look at the scientific literature at the time at all back in the 1960s, do a Medline search to make sure that you understood what the scientific literature said in the 1960s?
MR. CIRESI: Objection, repetitious.
THE COURT: It's becoming repetitious, counsel.
MR. BERNICK: Well I asked him about 1988 --
THE COURT: Counsel.
MR. BERNICK: Okay.
BY MR. BERNICK:
Q. Let's go beyond nicotine pharmacology, Dr. Hurt.
A. Okay. You want these back?
Q. No, I'm going to maybe make reference to them again.
CROSS-EXAMINATION - DR. RICHARD HURT Let's go to the issue of compensation. You testified what was in the tobacco company documents concerning compensation; correct?
A. I did.
Q. Now compensation is a --
Let me maybe go through a little bit of what compensation is before I ask you any questions about it.
You have told us that over time, as part of your direct examination, tar deliveries have declined. I just make that as a very rough line. Correct?
A. No, I think that that was part of the opening statement by Mr. Webber when he drew that line and had a chart out in front. And the delivery -- the delivery has declined, yes.
Q. But you agree that if it's in the Surgeon General's report itself, given the FTC delivery method, tar deliveries have declined; correct?
A. Deliveries have declined, yes.
Q. Okay. And the issue of compensation, at the same time that tar deliveries have come down, nicotine deliveries also have come down; correct?
A. They go hand in hand.
Q. Okay. Now the issue on compensation is whether, if somebody is smoking a lower tar delivery cigarette, getting less of what they like and getting less nicotine than what they're accustomed to, will they start to compensate; that is, will they push the delivery of nicotine back up. That's what compensation is about; right?
A. That's right.
Q. Okay.
A. Inhale deeper, they hold their breath longer, cover up the inhalation holes if they know they're there. But most people don't obviously.
Q. Now you said that the compensation -- fact of compensation was in tobacco company internal documents that you reviewed; correct?
A. Yes, it was.
Q. Okay.
A. For a -- for a long time.
Q. Did you take a look and see when the theory of compensation first appeared in the scientific literature?
A. The anchor that we use for compensation as far as low tar and low nicotine cigarettes are concerned is an article written by Benowitz in 1983. That is the anchor that the field uses to understand what happens to the blood nicotine and cotinine levels in smokers smoking low tar/low nicotine cigarettes.
1983 was -- it is the anchor that we use.
Q. Is it your testimony here that compensation, the theory of compensation didn't appear in the scientific literature until 1983?
A. That's not what I said. I said that is the anchor that we use within the scientific community where we take care of patients and understand what the delivery devices are about, what the blood levels of cotinine are about. That is the anchor that we use. And that showed basically that people do compensate. Their cotinine levels are the same at low delivery compared to regular delivery. That's what the article says.
Q. All right. I'm asking you this: Did you take a look and see when the fact of compensation, the theory of compensation, when it first appeared in the published scientific literature for everybody to see?
A. I don't recall that I did that, no.
Q. Are you familiar with an article that was published by Ashton and Watson in 1970 regarding compensation?
A. I recall the names, but I couldn't cite you the verse and chapter.
Q. Okay. If you could take a look at --
Do we have the volumes up there? Could we get them?
MR. CIRESI: May we have an exhibit number, Your Honor?
MR. BERNICK: Yes.
MR. CIRESI: They've cited a lot of exhibits here.
MR. BERNICK: It's GK19.
MR. CIRESI: GK19.
MR. BERNICK: Yes. As a matter of fact, while that's getting done, maybe I can expedite it by just handing up an extra copy to the witness, if that's all right.
BY MR. BERNICK:
Q. Dr. Hurt, are you familiar with the British Medical Journal?
A. Yes.
Q. Is that a recognized and well-respected peer review publication?
A. It is.
Q. And do you see that this is an article by Heather Ashton -- Ashton dated September 19 of 1970?
A. It is, yes.
Q. And do you recognize Heather Ashton as being a -- a recognized and reliable researcher in the field of -- of smoking behavior?
A. I recall the name, but I -- this is really a long time ago, so I don't -- I don't that I would recognize her that way. But it -- I don't know that she's not either.
Q. Do you recognize --
A. I mean I wasn't -- I wasn't --
Q. I'm sorry?
A. I wasn't --
I graduated medical school in 1970, and so in -- in the times that I've been involved with this, it's been the last, you know, 20 years. So if you say she's an expert, I guess she was. But --
Q. Well you're not familiar with this article at all?
A. I don't recall seeing it, no.
Q. Well when -- when you testified about compensation, did you take the time to go back and review the literature that had been published about compensation?
A. You know, I guess when I looked at the article Benowitz wrote and the way that it was written, I don't know that this article was cited in that -- in that article. Again, we rely on -- on the experts that we -- that we view as being experts in this -- these areas to have done their work right, and that's part of the peer review process. So I would -- I would bet that Benowitz had this article in that -- that article, but I -- I really didn't look to see for sure.
Q. Just so I'm plain, did you do any research, did you review the scientific literature, not just the Benowitz article, but did you do kind of a review of the scientific literature on compensation before you came to testify?
MR. CIRESI: Objection, repetitious.
THE COURT: It's repetitious, counsel.
Q. Can you say --
When was the first mention that you've seen in a tobacco industry document of the theory of compensation?
A. Oh, it must have been in the '50s your '60s, but I don't -- again, there are a lot of documents I reviewed, and -- and it's been a long time. That's the impressive part about this. And the other part is that it's not just knowing about it, it's what they did with it.
Q. Can you say, Dr. Hurt, that the fact of compensation, the theory of compensation was somehow a secret within the tobacco industry back in 1970?
MR. CIRESI: Objection, misstatement of the evidence.
THE COURT: You may answer that.
A. The consumer, which is the ultimate user of this product, was clueless to compensation. They didn't have an idea about compensation. And that's the important part of this.
The scientific community, it's important for us to know about this. But the companies have a responsibility to their consumers to tell them about their product because they know the most about their product. And the consumer did not have an idea about compensation, and I'm not sure they have an idea even yet today.
Q. I'm going to ask you in a few minutes a lot of questions about consumers and compensation, but my question was really directed to whether this was a secret from the scientific and medical community. Can you testify that the fact of compensation was a secret from the scientific and medical community at any point in time?
MR. CIRESI: Objection, asked and answered.
THE COURT: You may answer it again.
A. The documents that I reviewed had "SECRET" marked all over them, and the breadth of the information contained in the documents was deep and it was broad and it dates back 40 years. That's what I know.
Q. But you didn't take a look at the scientific literature comprehensively 40 years ago; did you?
A. Did I go back and look at what was in the scientific literature? I relied on published articles like Benowitz and others, but I did not do a Medline search if that's the question. I did not do a Medline search.
Q. Let's talk about another one, smoking for nicotine. You testified to documents where people in the industry discussed and said that people smoke for nicotine. Do you recall that testimony?
A. Yes.
Q. And there are a number of documents that you cited to the court and the jury; correct?
A. There were, yes.
Q. Now smoking for nicotine, the idea that people smoke to get a nicotine dose, that's a pretty old theory; isn't it?
A. It's been the way that I've understood it for a long time, if that's old, but I couldn't tell you exactly what date it goes back to.
Q. Well you mentioned that you were familiar with work by Johnston; correct?
A. Yes.
Q. Isn't it true that in 1942, Johnston published an article that specifically said "I believe people smoke for nicotine?"
A. I'd have to go back and look at the article. That sounds -- that sounds feasible, yes.
Q. Well it's not only feasible, it is specifically an article that you referred to in your expert report; correct?
A. Uh-huh, yeah. But again, there's a lot of articles there, there's been a lot of documents, there's been a lot of time since my expert report which was in August of this past year, so there has been a lot of things that have happened since then and I'm not going to have immediate recall of these things.
Q. In fact, Johnston's theory went something like this: Smokers show the same --
MR. CIRESI: Excuse me, Your Honor. Counsel has not offered the exhibit. We don't know the exhibit number.
THE COURT: Counsel, will you be offering this as an exhibit?
MR. BERNICK: I may or may not depending upon what his answer is.
CROSS-EXAMINATION - DR. RICHARD HURT THE COURT: Well then I think you may have to rephrase your question.
MR. BERNICK: Okay. Well then if it would be easier to offer it --
Q. Could you take a look in the volumes that are before you at volume one, tab 25.
MR. CIRESI: May I have an exhibit number, counsel?
MR. BERNICK: It's GK226.
A. What number again?
Q. It's volume one, tab 25.
A. Okay.
Q. Is that the Johnston article?
A. Yes.
Q. Okay. This is an article that you specifically relied upon in your expert report; correct?
A. It's one of the articles I reviewed, yes.
MR. BERNICK: We offer it, Your Honor.
THE COURT: No objection under 803(18), Your Honor.
THE COURT: Okay. That will be received into evidence.
BY MR. BERNICK:
Q. It appeared in a journal called Lancet; correct?
A. Yes, it did.
Q. And Lancet is a fairly prestigious peer review publication; is it not?
A. It is.
Q. And the date is 1942; correct?
A. December 19th.
Q. Okay. And if we take a look at what Johnston did in that article -- it's kind of hard to read, but I'll try to focus in on it -- he performed an experiment where he said, "On the assumption that smoking tobacco is essentially a means of administering nicotine, just as smoking opium is a means of administering morphine, nicotine was given hypodermically to 35 volunteers in known doses with a view to comparing its effects, and particularly its psychic effects, with those of tobacco smoking." Do you see that?
A. That's what it says.
Q. And in fact what he found out was that after people took nicotine intravenously, their urge to smoke was, at least temporarily, somewhat reduced; correct?
A. Well he says hypodermically, so I don't think that's intravenously. I think that's what he says, is hypodermically.
Q. Okay. I'm sorry. That's right.
A. It's not intravenously.
Q. Right.
A. Because intravenously is a different delivery.
Q. I understand.
A. Hypodermically would be beneath the skin intramuscularly. I don't know exactly what they did. But it does not say IV, no, I don't think.
Q. But the nicotine was administered hypodermically, and after it was administered he observed that people were less anxious to smoke; correct?
A. I mean I would have to read the -- read the whole thing again if you want me to comment on that, but I think that's what it said, yes.
Q. And at the conclusion he says as follows, "Smokers show the same attitude to tobacco as addicts to their drug, and their judgment is therefore" -- I guess -- it's hard to read -- "biased in giving an opinion of its effect on them." Correct?
A. That's what it says.
Q. Okay. And that's basically the theory that people smoke for nicotine; is it not?
A. This shows the pharmacologic effects of nicotine, and the absence of it produces withdrawal symptoms. Those would be some of the things you might say.
Q. And isn't it true that the tobacco industry in 1967, by -- through a funding program at the American Medical Association, performed a similar experiment -- that is, looked for the effect of nicotine -- performed a similar experiment and published an article all about smoking for nicotine; correct?
A. I think that was mentioned in the opening statements, but I couldn't give -- I could not put my finger on the article. I think you or one of the other gentlemen mentioned that in the opening statements as far as what the AMA research was. But I -- I -- I don't have recall of that article.
Q. Well, do you dispute that when it comes to this theory, that the tobacco industry sponsored published research and published reviews announcing this same theory to the medical and scientific community? Do you dispute that?
MR. CIRESI: Objection to the form of the question.
THE COURT: You may answer that.
A. I don't -- you know, I don't have knowledge of all the things that were published. That's beyond the scope and the comprehension of any individual.
So I -- I do -- I do not know that. So if you've got something you can show me, we can look at it.
Q. Are you familiar with the work that Luchese did in 1968?
A. I remember the name, but I don't remember the work.
Q. Are you familiar with the work that Armitage did in 1968 --
A. I remember the name.
Q. -- funded by the tobacco industry in Britain?
A. I remember that name, yes.
Q. Do you remember his announcing the same theory, published literature for everyone to see, "Smoking is for nicotine?" Do you remember Armitage's announcement of that theory?
A. I remember that -- the article -- the name, but I don't know how widely disseminated that was in the public domain. You keep talking about the public domain. We're talking about the scientific literature here, so I don't think that -- that most people review Lancet. I don't think anybody in this room would get Lancet, maybe, except me.
So what's in the scientific literature, unless it makes it to the consumer, doesn't really get to the right place. So if it was published, and I -- Armitage article, I remember an article by Armitage on this topic, but I could not cite you chapter and verse.
Q. Well Armitage's work was funded by the tobacco industry in Britain; wasn't it?
A. Say again.
Q. Armitage's work was funded by the tobacco industry in Britain; wasn't it?
A. It could have been. I don't -- I don't know that for certain.
Q. Okay. And Armitage actually published not one, but a whole series of articles; did he not, about nicotine?
MR. CIRESI: Your Honor, I'm going to the object to the form of the question.
THE COURT: You may answer that, if you know.
A. Could have. But I -- you know, again, I -- I do not know the breadth of what -- or I've never looked Armitage up under a lit. review. So if you've got something you can show me about what he did, I'd be glad to look at it.
Q. Well let me just ask you: Isn't it true that the Surgeon General in the 19 --
You testified about the Surgeon General's report in 1988; did you not?
A. Uh-huh, yes.
Q. Did you read -- did you read the Surgeon General's report in 1988?
A. I've read parts of it over the years since 1988. I've never really sat down and read the whole thing at one time.
Q. Did you take special care to go back and re-review the 1988 Surgeon General's report before you came in here to testify?
A. I reviewed parts of it. I did not the review the whole thing.
Q. Isn't it true --
A. I remember Armitage article -- an article by Armitage on the issue on pH in those two or three pages that had to do with pH. I think that was one of the articles cited from the early 1970s. But there were only a few articles about pH and pH manipulation that was included in the entire volume, and that was one of them.
Q. In fact, Armitage is one of the world's foremost nicotine pharmacologists; is he not?
A. I do not know that.
Q. In fact the Surgeon General's report in 1988 cites not just one, but one, two, three, four different articles by Armitage?
A. Could be. I don't -- I did not look for Armitage's name in that report.
Q. Ashton -- the Ashton --
Dr. Ashton is another scientist sponsored by the tobacco industry in Britain; correct?
A. I don't know that.
Q. Ashton also was cited by the Surgeon General in 1988 regarding the effect of cigarette smoking; correct?
A. I do not know that. But if you say that it's true, I --
I'd have to look at the book to see who was cited. I mean you're holding a piece of paper, I don't know what's on it, and before I could say for certain it is true, I'd have to look at the book.
Q. I'll just hand you the piece of paper that I've got here. It's a list of articles that were published by the --
MR. CIRESI: Well --
Q. -- TRC --
MR. CIRESI: -- excuse me, counsel. This is an inappropriate form of examination. May we have --
Is this an exhibit?
CROSS-EXAMINATION - DR. RICHARD HURT MR. BERNICK: No.
THE COURT: Will you be introducing an exhibit, counsel?
MR. BERNICK: No. I'd like to refresh his recollection. It's a series of citations from the 1988 Surgeon General's report. Every single citation is to the TRC or the Medical College of Virginia.
THE COURT: Have it marked as an exhibit, please.
MR. CIRESI: May we have a copy, please?
(Discussion off the record.)
MR. CIRESI: Your Honor, this is apparently an article -- or a compilation prepared by the lawyers from a document. If he's referring to the '88 surgeon General's report, it is in evidence and we ought use that exhibit, not -- not a lawyer's reference.
THE COURT: Is that just part of the exhibit?
MR. BERNICK: Yes, it --
What it is, Your Honor, we've gone through the '88 Surgeon General's report and we've picked out the citations to work that was sponsored by the TRC in Britain and by the Medical College of Virginia, and rather than having the witness page through the '88 Surgeon General's report one by one to find all the cites, I just want to tender it to the witness.
MR. CIRESI: Well --
THE COURT: Well not that we don't trust you, counsel, but I mean if this is your summary, it's going to be difficult for the witness to testify from it.
MR. BERNICK: I can do it very easily another way. Maybe this will be a little bit simpler.
THE COURT: Okay.
BY MR. BERNICK:
Q. Dr. Hurt, I'm going to ask you a series of names and I'm going to ask you if you are familiar with any of these people based upon your review of the Surgeon --
THE COURT: Counsel, excuse me. I don't mean to interrupt you, but when counsel questions the witness, the questioning will have to be at the podium unless there is an exhibit. Then he can approach the witness.
Q. I'll read you a series of names, Dr. Hurt, and I want to know if you're familiar with any of these names based upon your review of their articles or the Surgeon General's report. Are you with me?
CROSS-EXAMINATION - DR. RICHARD HURT I already asked you about Armitage and Ashton. Beckett, Dr. Beckett, are you familiar with Dr. Beckett's work?
A. Not off the top of my head, no.
Q. What about Dr. Clarke on the self-administration of nicotine solutions?
A. Is there a first name? There are a lot of Clarkes.
Q. M. S. G. Clarke.
A. I could be, but I -- you know, just -- I -- I couldn't give you an article to go with that person.
Q. What about Dr. Finnegan, J. K. Finnegan?
A. I've seen that name --
MR. CIRESI: Your Honor --
Q. You've seen the name?
MR. CIRESI: I object to this form of questioning. The Surgeon General's report should be in front of the witness so he can look at it if it may refresh his recollection.
THE COURT: Well I'll allow him to ask -- answer the question, and I'll give you the opportunity to go through the Surgeon General's report if you wish.
MR. BERNICK: Okay.
BY MR. BERNICK:
Q. Are you familiar with the work of J. K. Finnegan on the role of nicotine and the cigarette habit?
A. I recall the name Finnegan, but I -- I could not give you that exact citation.
Q. Do you know anything of what Dr. Finnegan found and published?
A. You're asking me questions about literature that's very broad, very large, that I may have reviewed it at any point in my career, and I -- I can't -- I cannot go back and look at even a list and tell you what's in those articles without seeing the article. I don't think that's really realistic to ask.
Q. Well I'm just asking you if you even know the names.
A. You just asked me if I knew about the article and what the results were. And I don't. I remember some of the names but I don't remember the content. I mean what I do on a day-to-day basis, I see a lot of information, and I do not catalog it according to who sponsored the research, which institution it came from. Some names become more familiar because you see them more often, and some things you rely on more of people that you recognize as being a colleague and a peer. Some articles are classified as being classic articles that we all -- all refer to, like the Hammond and Horn articles.
And so you have to understand the process that I go through in processing a very large amount of information. There's no way in the world --
If you could go through the rest of this list, there's no way in the world I'm going to be able to tell you, except those that may be most familiar to me, about what the content of the article was.
Q. Do you consider yourself an expert in nicotine pharmacology?
A. As it relates to how I take care of patients and how nicotine works in the patients that I work with and what cotinine levels do, what nicotine levels do, how it relates to that, I am.
Q. But if I were to ask you: Are you an expert in the scientific literature and what it said over time regarding nicotine pharmacology? Would you consider yourself to be an expert in that area?
A. As it relates to how I need -- information I need for taking care of patients to do the extent that I do, nicotine patches, nicotine gum, nicotine nasal spray, all of those things, I get phone calls almost every week from people around the country asking my opinion about what a nicotine or cotinine level is. I get articles referred to me to review that have to do with nicotine pharmacology. That -- those are the bases that I use to -- as a colleague, that's the way I'd look upon a person as being an expert, is who do I refer to, who do I ask questions of, who do I send articles to to review before I submit them for publication? And that happens every week.
Q. I know we are getting to a breaking point and I'll try to reach it, Your Honor.
I guess my question is a little bit different, Dr. Hurt. Do you consider yourself to be an expert in what the scientific literature had said about nicotine pharmacology over time?
MR. CIRESI: Objection, asked and answered.
THE COURT: No, I don't think he's answered that question.
A. I have reviewed literature over time. Can I remember every piece of it? I don't think anybody can. So I have reviewed the literature over time and to that degree, yes, I know that literature. But if you ask me do I know every article that's ever been written about this topic, that's beyond the capability of anybody that I know of.
Q. So I guess maybe -- maybe he has answered the question, but I'll just try it a slightly different way.
I'm not asking if you know every article. I'm asking whether you feel that you are proficient as an expert to take the stand and tell us the state of knowledge in nicotine pharmacology and how it's evolved over time in the literature? Can you do that as an expert?
A. I think I just answered that.
Q. I'm sorry?
A. I think I just answered that to the best of my ability.
MR. BERNICK: I don't think I've gotten an answer to that, Your Honor. I'd like to know if he holds himself out as an expert in how the state of knowledge in nicotine pharmacology has evolved in the scientific literature, not his clinical practice, but the scientific literature over time.
MR. CIRESI: Your Honor, there is no such definition. That's -- that's counsel's definition. He has testified what he considers himself to be. Objection to the form.
THE COURT: I think he's answered this as best he can. I think we should move on.
MR. BERNICK: This would be a good time to take a break, Your Honor.
THE COURT: All right. We'll take a short recess.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. BERNICK: Thank you.
BY MR. BERNICK:
Q. Dr. Hurt, if you could turn to volume two, tab 53 of the materials you got there.
A. Binder two?
Q. Yeah, yes. Binder two, volume fifty -- tab 53, and the exhibit number which is TG237, it's the '79 Surgeon General's report.
Do you see that that is an excerpt -- I'll tell you it's an excerpt from the Surgeon General's report of 1979.
MR. CIRESI: Excuse me, Your Honor, which number was that again?
MR. BERNICK: It's TG237.
May I approach the witness, Your Honor?
THE COURT: Yes.
MR. BERNICK: If you'd like to see the whole report, this is it.
BY MR. BERNICK:
Q. If you'd take a look at this exhibit, I think you'll see that it's a series of charts that deal with tar/nicotine deliveries over time. Page 207, 208, and 209. Ending at 212. Do you see that?
A. So this is the '81 report?
Q. No, I don't think so. Is it the '81?
A. Well it says "PREFACE: In this 1981 report...."
Q. Oh, I'm sorry, I'm sorry, it's the '81 report. I've given you '71. Do you have the other one?
Here you go. Sorry.
MR. CIRESI: What -- what exhibit number?
MR. BERNICK: It's the same exhibit number.
Q. Do you see that?
A. This is the '81 report. Yes. Which page?
Q. Just page through. You'll see it's copies of charts, at 207, 208, 212.
A. What page number?
Q. It's page 207.
A. "Sales-weighted averages of 'tar' and nicotine per cigarette...?"
Q. Right. And the next page is 208, Figure 4.
A. "Sales-weighted averages of "tar" and nicotine per cigarette consumed...."
Q. And Figure 8 is 212.
A. "Index of average 'tar' and tobacco per cigarette annually, '67 through '79."
Q. Right. Dr. Hurt, do you --
Are you familiar with the '81 Surgeon General's report?
A. I have seen it and I have looked at parts of it, but I --
If I have looked at these figures, it's been a while. I mean that's --
Q. Irregardless --
A. There's a lot of information.
Q. I'm sorry.
Do you regard the Surgeon General's report as reliable authority for purposes of your work?
A. Yes. I think I've already stated that.
MR. BERNICK: We would offer, Your Honor, Exhibit TG2037 into evidence as a learned treatise. I'll note for the court, though, that for purposes of this examination I'm only going to be using the tar and nicotine charts that appear at those pages.
MR. CIRESI: No objection under 803(18).
THE COURT: That will be received into evidence.
BY MR. BERNICK:
Q. If you could turn to the chart at page 208, does this reflect the chart that appears there?
A. Yeah, that's the same chart.
Q. Okay. And this purports to show the average of tar and tobacco per cigarette -- I'm sorry, the average of tar and nicotine per cigarette consumed in the United States from '68 to '78; right?
A. Well it says sales-weighted averages.
Q. Sales-weighted averages.
A. I don't -- I guess I'm not clear what "sales-weighted" means.
Q. Okay. Do you see that the source is derived from the Federal Trade Commission?
A. Right. I see that.
Q. Okay.
A. So I guess I need to look at what's the explanation for Figure 4.
Q. If you'd like to.
A. Yeah, it says on page 205, "Figire 4 indicates that the decline in tar has continued inrecent years, all at a slower rate than observed from 1954 to 1965."
Q. Okay. So I drew in very rough form on the board the decline in tar deliveries, and this is a chart that appears in the Surgeon General's report which shows the decline in tar and nicotine deliveries as derived from the Federal Trade Commission, as you've just described; correct?
A. That's what this shows, yeah.
Q. Okay. Now I want to ask you --
A. You know, the tar --
Q. I'm sorry.
A. The tar went from 38 milligrams to 19 milligrams, the nicotine went from 2.3 to 1.3, according to the text.
Q. Right. In other words there's -- there's one scale for tar that's on the left side, --
A. Correct.
A. -- another scale for nicotine that's on the right, --
A. Right.
Q. -- so if you want to see what the nicotine is, you got to put your eye to the right, and if you want to see tar you got to put your eye to the left; right?
A. That's correct.
Q. Okay. Now there's been a lot of discussion -- there's been some discussion during your direct examination yesterday, and I think in principal part, about the method by which these deliveries are determined; correct?
A. It's called the Federal Trade Commission methodology, yes.
Q. Okay. It's --
In fact, the method is called the FTC Cambridge method; right?
A. Because of the Cambridge filter, yes.
Q. Now the Federal Trade Commission is an agency of the United States government; is it not?
A. It is.
Q. And the Federal Trade Commission has for a long time had responsibility over advertising concerning cigarettes; correct?
A. I -- I really don't know. I guess I've never really -- I guess I was never really asked that question. I think that it does, but I don't know that for a fact. I've never looked it up to see. I know the Federal Trade Commission are the numbers that are used in these ads and such that are in the -- in -- in -- in the ads.
Q. Okay. We'll come back to --
A. As I understand it, the tests do not take place necessarily at the Federal Trade Commission. It's my understanding that some of the tests for these things actually take place within the tobacco industry itself. That's my understanding.
Q. Well let's --
We'll put the ads to one side and come back to them later. Just talk about the numbers.
A. Okay.
Q. Okay. Isn't it true that since 1967, the Federal Trade Commission itself, through its own staff, has done tests on cigarettes to determine their tar and nicotine deliveries using this method?
A. I have never asked that question of -- I -- I've never asked that question to know that for sure, but I -- that's been the assumption there's been, that the Federal Trade Commission has done this.
Q. And that's why it says derived from the Federal Trade Commission. These are the Federal Trade Commission's own data; correct?
A. It says that, derived from the Federal Trade Commission. But there's a little number after that, and I can't make it out on my copy. Is it a reference?
Q. I have to confess that mine isn't much better.
Here, if you take a look --
A. Sometimes -- sometimes they'll reference it in the back.
Q. If you take a look further down, it gives you a clue here. It says "Based upon"-- talking about the correlation coefficient, "Based upon data from the Federal Trade Commission report."
The Federal Trade Commission issues reports that contain information on deliveries for cigarettes. Are you familiar with those reports?
A. Yeah. In fact when you get -- it's number six is what the little citation is there, and so it refers to number six on the back, "Report to Congress pursuant to the Public Health Cigarette Smoking Act for the year 1978," and it gives the -- the page number and the year.
Q. Okay. So --
A. So it's -- it is a report from the Federal Trade Commission to Congress, is what -- where this came from.
Q. So the FTC itself uses its Cambridge method to do the tests, makes a report to Congress. The data then is analyzed and appears in the Surgeon General's report; correct?
MR. CIRESI: Objection to the form of the question.
THE COURT: You may answer that if you know.
A. Well I think I'd already started to answer it earlier, because I -- I don't know that the staff of the Federal Trade Commission does all the tests that go into these reports. It's my understanding that the Federal Trade Commission methodology is used by the industry to make -- make the assessments on some of these, and I don't know if that goes into these reports or not.
Q. Are you familiar with the regulation that the FTC issued in 1967 directing its staff to do this testing?
A. I'm not aware of it, no.
Q. Let me then pursue the next step, which is --
Are you familiar with the fact that the FTC and the industry agreed in 1970 to use this method in setting forth the tar and nicotine deliveries in any advertisements for cigarettes? Are you familiar with that?
A. I'm not familiar with the document, but that's fairly common knowledge, I think, that that's -- that's what's done. But I don't -- I do not know about the agreement specifically, no.
Q. So we have a test methodology which is used by the FTC and which is also used in putting together figures for advertisements of tar and nicotine delivery; correct?
CROSS-EXAMINATION - DR. RICHARD HURT MR. CIRESI: Objection to the form of the question. Misstates the evidence.
THE COURT: You may answer that.
A. I'm not -- I'm not sure I understand the question. So maybe you can re --
Q. Is there any doubt in your mind, Dr. Hurt, that this method is a method that specifically was adopted by the Federal Trade Commission for use in stating tar and nicotine deliveries in advertisements? Is there any doubt in your mind about that?
A. Well that's what it says in the advertisements. I think the FTC is -- method is mentioned in the advertisements. I think that -- I recall that it is, but I --
Q. So as sit here today and as the jury hears it, is there any doubt in your mind this particular method of measuring tar and nicotine deliveries has been specifically adopted by the FTC to be used in advertisements for tar and nicotine deliveries of cigarettes?
A. I think that's correct.
Q. Okay. Now what this chart reflects, does it not, is that these deliveries have declined over time?
A. Uh-huh.
Q. I'm sorry?
A. Yes.
Q. Okay. Now isn't it also true that from the very beginning, from 1967, the FTC issued a statement in which it specifically said that this method, this machine does not necessarily capture what any particular smoker may get in smoking cigarettes? Are you familiar with that statement issued by the FTC itself?
A. It was stated to the consumer? Who was it stated to?
Q. It was a public release, a public FTC release. Are you familiar with it?
A. No, I'm not -- I'm not. So it's something that was put into --
Was it put in the labels, that the methodology may not measure -- I -- I don't understand the question.
Q. I'm asking you whether you're familiar with the news release that was issued by the Federal Trade Commission on August 1 of 1967, the day that it announced that it was going to begin this testing, are you familiar with the public release that was issued by the FTC or not?
A. If you have it in your hand, I'll be glad to look at it. I mean I don't --
MR. BERNICK: May I approach the witness, Your Honor? Actually I think this is probably in the book. Mine is marked up here a little bit.
MR. CIRESI: May we have an exhibit number, Your Honor?
MR. BERNICK: It's GK18.
MR. CIRESI: I didn't hear him, Your Honor.
MR. BERNICK: GK18.
THE COURT: GK18.
Q. I just want to know if you're familiar with it or not.
A. I've never seen this before that I recall, but it's --
I don't recall seeing this before, no. So I'm not familiar with it.
Q. Let me just ask you a more general question. Have you ever looked to see, Dr. Hurt, what the FTC itself has said about whether this method was designed to capture what any particular smoker would get? Have you ever looked into that question?
A. I guess I was a smoker back at this time, and I don't recall anything in the public domain as a smoker that said that this methodology might not do what it says it does on the labeling as well as in the information that was available in the public domain. And I as a consumer did not go back to look and see what the Federal Trade Commission said at all. And so the public knowledge about this is the important part, and I -- I don't recall that and I did not go back to look at what the Federal Trade Commission said and when they said it, no.
MR. BERNICK: Your Honor, I move to strike. I don't think it's for the witness to determine what's important here. And that was not responsive to my question.
THE COURT: It is non-responsive.
Q. Did you ever go back and take a look to see what the Federal Trade Commission of the United States has said about whether this methodology was designed to capture what any particular smoker gets?
A. No, I did not.
MR. CIRESI: Excuse me. I'm going to object on relevance.
THE COURT: The answer will stand.
Q. Now after 1967, when the FTC adopted this method, it's true, is it not, that the theory of compensation came to light?
A. I recall seeing documents that talked about compensation, I believe, before 1967.
Q. Well let's talk -- let's talk about specifics.
Isn't it a fact that the very first scientific article that was published about compensation was in 1970?
A. I would have to go back and look, but I -- what I saw in the documents predated that. Compensation was an issue that was present in the documents a long time ago.
MR. BERNICK: Your Honor, this is not responsive. I asked him specifically about publication in the scientific literature.
Q. Wasn't the first article that was published about compensation in 1970?
A. Is there an author to that article? Was it Armitage?
Q. It was the -- it was the Ashton article I gave you this morning. Isn't that the first?
A. I don't have that in front of me any more, but I do not know if that was the first.
Q. I don't think you were familiar with that article. Were you?
A. I recall the name. I think that's what I said earlier. But we didn't really even get into that article, as I remember.
It's still here. "Puffing Frequency and Nicotine Intake in Cigarette Smokers," is that the one?
Q. Yeah.
A. 1970.
Q. It's about compensation; isn't it?
A. I'd have to read it.
Q. Take a look at it.
MR. CIRESI: May we have the exhibit number, Your Honor? The last one was not designated, so we don't have it.
MR. BERNICK: This one was offered -- this one was discussed this morning.
MR. CIRESI: Well I haven't memorized them, Your Honor.
THE COURT: Counsel, could you just refer to the number, please?
MR. BERNICK: Yeah, I'll try to get it out of here. Here we go. GK19.
MR. CIRESI: Thank you, Your Honor.
A. Well it cites the Armitage article from '68 which says -- suggested that some people smoke in order to dose themselves with nicotine and pointed out that a cigarette smoker has literally fingertip control of how much nicotine he takes into his mouth. It cites that article from '68. I don't know if that may have been referring to compensation. So I don't --
This one has to do with smokers who they tested in a simulator, a driving simulator, and also during a resting period after doing certain tasks. And then the summary -- and I haven't read the whole article, but in the summary it says "Smokers of cigarettes with high-retention filters took more frequent puffs."
So I'd have to look at -- I mean if you want me to read the whole article, I can read the whole article. But --
Q. That's fine for what we need now.
That's an article about compensation; is it not?
A. I don't see the word "compensation" mentioned anywhere in here as far as what is said. So if I were to do a literature search and say find out articles about nicotine compensation, unless "compensation" is mentioned in the title or in the abstract, it would never show up on a Medline search even -- even --
So I don't see "compensation" hear mentioned. Maybe it is, but I haven't read the whole article.
Q. You testified on --
A. But in the -- in the discussion it says it shows that under varying conditions low nicotine cigarettes had higher puff frequency and drew into their mouths nearly the same amount as smokers of high nicotine cigarettes. Now they may have drawn it into their mouth -- are their blood levels in here?
Q. Puffing frequency.
A. Puffing frequency?
Q. Yes. Doesn't the literature on compensation often measure compensation by measuring puffing frequency?
A. Well a better way of doing that is to measure the absolute content in the blood. Compensation has to do with delivery of nicotine to the body and to the brain, and so the real science has to do with the nicotine which is the -- the drug we're talking about. So puffing frequency may or may not have to do with compensation depending upon all the other aspects, the depth of inhalation, how long they hold their breath. So the real -- the real test of this is how much nicotine gets into the bloodstream.
And I don't see here -- I mean they measured -- the nicotine content in the cigarette snubs or stubs were analyzed, but I don't see that they measured the nicotine blood levels. And if they did, I'm just not seeing it.
Q. Isn't it true that compensation has been measured by scientists by taking a look at puff frequency, cigarette butt length, depth of inhalation? A whole series of measurements; correct?
A. Correct. But the -- the real -- the real proof of the pudding is what gets into the bloodstream.
Q. I know --
A. Because smokers are different. Each individual smoker is different.
Q. I understand that that's what you would like to see, but is the behavior that is described in this article in 1970, increased puffing frequency to maximize the nicotine dose, is that or is that not compensatory behavior?
MR. CIRESI: Your Honor, I'm going to object to the form of the question.
THE COURT: You may answer that.
A. All I can tell you is what -- what they said, which is "This investigation" -- and this is in the first sentence of the discussion, "This investigation shows that under varying conditions, smokers of low nicotine cigarettes had a higher puff frequency and drew into their mouths nearly the same amount of nicotine as smokers of high nicotine cigarettes."
But that doesn't assure it gets into the bloodstream just because they put it in their mouth. In fact it probably doesn't get absorbed very well in the mouth.
Q. So you're assuming the cigarettes there -- cigarette smokers there took more puffs in their mouths but didn't inhale more?
A. Sure. People smoke -- smoke cigarettes differently. They puff differently. I've observed people who to do that a lot, puff into the mouth, blow the smoke out. People do a lot of things with cigarettes. So I don't --
Puffing frequency is part of it, depth of inhalation is part of it, but the real proof of it as far as compensation is how much nicotine gets into the bloodstream.
Q. So as I understand your interpretation of this article, you believe that what it shows is that people smoke more -- took more puffs to get the optimum nicotine dose by puffing into their mouths more but not inhaling it?
A. I -- I can only tell you what they said. They -- they say -- they say, "These findings are thus consistent with the possibility that there exists an optimum," in quotation, "nicotine dose for a given activity, and that smokers unconsciously modify their smoking behavior in an attempt to attain this dose."
So in that respect we're talking about a drug-delivery system, but they just didn't measure nicotine levels in the bloodstream.
Q. I see. So --
But if in fact all they did was to puff it in their mouths, they wouldn't have gotten the nicotine; right, in their lungs?
A. I guess that's the point.
Q. So all these people are puffing away to get nicotine, but they're not inhaling it to get the nicotine.
A. It just doesn't say that. It says puffing frequency, they puff --
You could make the assumption that they inhale, but I'd have to read the whole thing to see if that's what they actually did. I mean smokers inhale, you're right, but this is talking about puffing frequency.
Q. What if we made the assumption that these smokers inhaled, Dr. Hurt. Could we make that assumption for a moment?
A. If they were regular smokers, that's probably the case.
Q. Okay. Let's make that assumption. If that were true, that is, if these smokers inhaled, isn't what that article describes compensatory smoking behavior?
A. It's one part of it.
Q. Okay. Now in point of fact, from that point forward a series of articles came out on compensation; correct?
A. Well I still don't know if this '68, the one from Armitage, was the first one. You want to know if this was the first one, and I don't know if this was the first one or not.
Q. Have you ever read the Armitage '68 article?
A. No, I --
I may have, but I really can't recall. I'd have to look back and see if it's --
Q. Okay. Subsequent to these articles, isn't it a fact that a wide series of articles were published on compensatory smoking behavior?
A. There may have been.
Q. Okay. You have cited articles, for example --
You've cited internal memos, for example, from my client, British-American Tobacco Company, by a researcher named Creighton. Do you recall that?
A. I recall Creighton, yes.
Q. And in fact you cited memos that she wrote regarding compensation internally; right?
A. I recall that. But I couldn't give you the exact one.
Q. Isn't it a fact that Creighton herself published her views on compensation in a book that was put out by the British-American Tobacco Company?
A. Could have. I'd have to see it to see.
Q. Are you familiar with the "Smoking Behavior" book that was published in 1978 by Thornton?
A. By the British-American Tobacco Company?
Q. By Thornton and others. Just take a look.
MR. CIRESI: Your Honor, again, may we have the exhibit numbers before --
MR. BERNICK: Yes, I'll give you the exhibit number now. That's GK175.
MR. CIRESI: Thank you.
BY MR. BERNICK:
Q. Are you familiar with Dr. Thornton's book?
A. I've never seen a book like this before.
Q. Okay. Could you tell us what the title of that is?
A. It's called "Smoking Behavior, Thornton."
Q. Now if you had done a literature search on Creighton --
Creighton has a paper in there, does she not?
A. I don't know. Is this in --
Am I supposed to do this? Is this in evidence?
Q. I'm just asking him to take a look at the table of contents.
A. I just need to know.
MR. CIRESI: Your Honor, this document, in addition to the 20,000 pages they've identified here, is 400 pages. Maybe we could have a citation to it so we can follow.
MR. BERNICK: Well first of all, it's 400 pages all about smoking behavior. That's why we identified it. I asked him to take a look at the table of contents particularly for that purpose, Your Honor.
THE COURT: All right. Why don't you take a look at the table of contents.
THE WITNESS: Okay.
A. Okay.
Q. Do you see that Armitage has contributed to this text? Item 18.
A. Yes, 18, Armitage.
Q. Okay. You also referred to documents that were authored by a Dr. Dunn, a tobacco company scientist. Does he have articles that have been published in the open literature here, items 15 and 16?
A. There is a P. J. Dunn. I can't recall the initials of the Dunn that -- that I saw in the -- the documents. There was a Dunn.
Q. Okay. And items 21 through 23 are all by Dr. Creighton; correct?
A. There is a Creighton, D. D. Creighton, yes.
Q. Okay. Do you know whether that's the same Dr. Creighton that wrote the memos that you reviewed with the jury the other day?
A. No. I can't remember the initials of that either.
Q. Do you know if the views of Dr. Creighton, as expressed in the internal memos, are also expressed in these published articles?
A. In the internal documents?
Q. Yes.
A. Do I know if they're the same?
Q. Do you know whether the views she expressed about compensation in the internal memos that you showed the jury are the same views that she published?
A. Not without comparing them side by side.
Q. And you haven't done that comparison.
A. No.
Q. A variety of others at --
CROSS-EXAMINATION - DR. RICHARD HURT Well let me take your attention to document --
A. This -- I don't even know --
Q. Excuse me.
A. -- if our library has this book.
Q. What?
A. I do not know if our library has this book.
Q. I don't know if it -- if it does either. I didn't really ask you that.
Dr. Hurt, would you take a look at item 26?
A. In the table of contents?
Q. Yes.
A. Yes.
Q. Now there is an article there, a chapter by M. H. Russell. Do you recognize Dr. Russell?
A. It says "Addiction Research Unit, Nicotine Titration Studies." M. H. Russell is Michael Russell from England, yes.
Q. Isn't he one of the most widely respected authorities on nicotine addiction in the world?
A. He's an expert, yes. He's an authority.
Q. Okay. Do you --
Did you ever take a look at what he's written on compensation?
A. I've got a lot of things that -- that he's written.
Q. On compensation.
A. Could have. I couldn't tell you. There's a lot of literature that I've read.
Q. Well these articles that came out about compensation in the 1970s, isn't it true that compensation in the 1970s was a widely studied phenomenon within the field of smoking behavior?
A. I'd have to review all of this to be able to -- to agree to that. I guess the other thing is that who else knew? The consumer didn't know.
Q. Well if you take a look at Dr. Thornton's book in particular, isn't Dr. Thornton's book also cited by the Surgeon General in 1988?
A. I have not checked that.
Q. Do you have the Surgeon General's 1988 report there?
A. '88?
Q. Yes.
A. No, I do not have it here.
MR. BERNICK: Did that come in yesterday? Do you still have that around?
MS. NELSON: The court will have it.
MR. CIRESI: I have some pages of it that I would give counsel.
MR. BERNICK: Let me see if I can find a full copy. Just take a minute.
May I approach the witness, Your Honor?
(Book handed to the witness.) BY MR. BERNICK:
Q. Is that a copy of the 1988 report that you referred to in your direct examination?
A. Yes. It's the one on nicotine addiction.
Q. If you take a look at pages -- well let's see. I'm not sure I'm going to be able to give you all the cites. Do you have the particular cites there?
If you take a look at the page of references at --
A. I have 58.
Q. -- 217. I'm sorry, page 217.
A. Okay.
Q. Do you see there's a list of references there?
A. Yes, there are a list of references.
Q. Okay. And if you cast your eye down the references, do you see Dr. Ashton and a cite to Dr. Ashton?
Should be right there on the first page, page 217.
A. I just want to see what the topic was.
Yes, Ashton is there for two, three, four articles -- or four references.
Q. In fact the citation to Ashton is actually a citation to Dr. Thornton's book that I just asked you about; right?
MR. CIRESI: Excuse me, Your Honor. Which citation? There's three different Ashtons in here.
MR. BERNICK: If you take a look at the -- the same --
THE WITNESS: It's the first one.
Q. The first and second are the same person, but the citation for the first one is in the Thornton book.
A. Thornton book, yes.
Q. It was put out by British-American Tobacco; correct?
A. Well it says that in the front. It says Group Research & Development Center, British-American Tobacco Ltd., but it's Churchill Livingstone --
Maybe it says it in the introduction that it was produced by B.A.T, but I'm not --
It says, "The views are, of course, entirely those of authors and not necessarily those of the British-American Tobacco Company, Ltd. or the editor." So I'm not sure what you mean by "put out by."
Q. Do you know who Dr. Thornton is?
A. I've heard his name, but I have never -- I don't know any more about him.
Q. Do you recognize that he was a scientist at BATCo for many, many years?
A. I -- I guess I don't know that.
Q. Take a look at page 219 of the Surgeon General's report.
A. Okay.
Q. Do you see that the Surgeon General also contained -- also has cited to Dr. Creighton, the BATCo scientist. Down at the bottom of the page.
A. There are two references to Creighton.
Q. Again to the same book; correct?
A. It's hard to tell. It doesn't have Thornton as the editor. It says "Smoking Behavior, Physiological and Psycological Patterns. This one says "Smoking Behavior." It says on the inside, "Physiological and Psycological Influences." Maybe it's just a mis -- typo or something, I don't know. Doesn't sound like the same book, but maybe it is.
This one says "Physiological and Psycological Influences," this one says "Influences," too.
Q. Probably the same book; right?
A. It is probably the same book.
Q. Okay. So Surgeon General has three different citations to Dr. Creighton, again out of the Thornton book; correct?
A. There are three there, yeah. But there are -- you know, there's 30 pages of citations in this one section.
Q. All right. And page 234, could you flip through to that?
A. Okay.
Q. Do you see Dr. Schultz?
A. "Smoking Behavior in Germany?"
Q. Yes.
A. "The Analysis of Cigarette Butts?"
Q. Right.
A. I see that.
Q. And that's another citation to Dr. Thornton's collection of articles; correct?
A. That's from the same book, yeah.
Q. Isn't it true that all of the citations that are contained in the Surgeon General's report and Dr. Thornton's book pertain, in fact, to smoking behavior and in particular to compensation?
A. I'd have to look at each one of them. I don't -- I don't know that for sure at all.
Q. When you read through the Surgeon General's report and you knew that you were going to testify about compensation, did you take the time to review any of the articles that were cited by the Surgeon General?
A. Some.
Q. Not these apparently.
A. I've never seen this book. I wouldn't know where to go to get it.
Q. Surgeon General knew where to get it.
A. Apparently.
Q. Now even after the -- the compensation articles came out in 1976 -- this was --
A. Which articles were those?
Q. I'm sorry, I misspoke.
Even after the compensation articles that we've just been talking about, Ashton in 1970, Thornton in 1978, it would be fair to say that by the mid-1970s at the latest, people who were involved in tobacco issues were familiar with the concept of compensation?
A. Not the smokers.
Q. Not the smokers.
What about the scientists and the Federal Trade Commission and the Surgeon General?
A. Some of them were.
Q. Okay.
A. But not all of them.
Q. What about the National Cancer Institute?
A. Probably some scientists there were aware, but certainly not all of them.
Q. Have you ever looked into that?
A. Pardon me?
Q. Have you ever looked into what the National Cancer Institute knew about compensation in the mid-1970s?
A. I can't recall a specific article about what the NCI knew. There has been more recent articles about low tar/low nicotine cigarettes. There's a monograph, I can't remember if that comes from NCI or from another group, but that's more recent, that's actually in the 1990 literature.
Q. Well let me just ask you something. We'll pursue it this way: Isn't it true that by 1976, the scientists with the National Cancer Institute were specifically recommending that the tobacco industry continue to reduce deliveries of tar and nicotine?
A. I can't recall a specific document that says that. That's the -- that's the general understanding that that's what the National Cancer Institute was trying to -- trying to get the industry to do, was to reduce the toxic, hazardous materials in cigarettes because they recognized that it caused people to die.
Q. Isn't it also true that the National Cancer Institute scientists actually set targets for tar and nicotine delivery for the industry to aim at?
A. I -- I couldn't tell you that specifically.
Q. Isn't it true that by 1979 the Surgeon General of the United States was telling the tobacco industry "Continue to lower deliveries?" Do you know one way or another?
A. Was that -- was that in the Surgeon General's report, you mean?
Q. Are you familiar with the 1979 Surgeon General's report on that issue, Dr. Hurt?
A. I have read lots of things from the Surgeon General's report. There's a lot of them. I do not have all of them at the tip of my memory, no.
Q. Do you have any recollection that in 1979, the Surgeon General in fact did basically -- not basically -- in fact endorse the idea of lowering deliveries?
A. That could be. I mean I -- I couldn't tell you the page in that report that that might be on. If you've got it, I'll be glad to look at it.
Q. Isn't it a fact that by 1981, the Surgeon General, even recognizing the fact of compensation, still stood behind the idea that industry should lower deliveries?
MR. CIRESI: Objection to the form of the question.
THE COURT: Sustained.
Q. Isn't it a fact --
Dr. Hurt, do you know what the Surgeon General said in 1981 about compensation and deliveries?
A. I'd have to look at the document.
Q. Do you know what the Surgeon General said at any point in time about bringing down tar and nicotine deliveries even though there was compensation?
A. I couldn't really -- I couldn't cite you a -- a specific phrase. The whole -- the whole point is the Surgeon General was concerned about the death and disability that was being caused by cigarettes and they were encouraging the industry to do whatever they could to lessen that. I think that's the general message.
Q. General message. You can at least tell us of the general message from public health authorities in the United States.
Isn't it true the public health authorities in the United States were telling the tobacco companies, "Lower deliveries?" Isn't that what they were saying?
A. Well, you know, the real public health authorities that have to do with drug-delivery devices is the FDA, and I don't know that the FDA ever told -- in fact I don't think the FDA ever had an opportunity to tell the tobacco industry to lower the hazard or even the nicotine content of the cigarettes. So "public health authorities" is much broader than just the Surgeon General. In fact the Surgeon General's office is a relatively small office within the government.
So if you're talking about asking or encouraging, I think that may have happened. But the true authority to regulate rises out of other -- other authorities, like the Food and Drug Administration.
Q. Well did the Food and Drug Administration have authority to regulate cigarettes in 19 -- in 1970s?
A. No, they did not.
Q. Right.
A. They should have, but they didn't.
Q. I understand your views on that.
The fact of the matter is the Federal Trade Commission did have authority to regulate the cigarette industry; correct?
A. To the best of my understanding, yes.
Q. And the fact of the matter is the Surgeon General had a responsibility to the people of the United States to speak to what the tobacco industry should do in order to make its products safer; correct?
A. The Surgeon General is -- was -- is a person within the government to speak to the issue of public health from a lot of different points -- a lot of different aspects of the public health, not necessarily only to do with cigarettes, but the -- the Surgeon General does not have any authority to mandate that the tobacco industry make their product less hazardous.
Q. I didn't ask you that.
A. They don't even have any authority at all. Nor --
Q. I didn't ask you that.
A. Well --
Q. I asked you isn't it a fact that the Surgeon General has a responsibility to the public of the United States to speak to the issue of what tobacco companies could do in order to make cigarettes safer; correct?
MR. CIRESI: Objection to the form of the question, Your Honor.
THE COURT: You may answer that.
A. The Surgeon General is not a policy maker. The Surgeon General basically can make reports and make recommendations to -- to the Congress, and that's where these reports go to, and then it's up to Congress to do something about that.
Q. You're telling me the Surgeon General of the United States didn't make recommendations to the tobacco industry in 1981 and 1979 and 19 --
A. The Surgeon General makes reports --
MR. CIRESI: Excuse me, doctor. Objection, argumentative.
THE COURT: It is argumentative. It's a misstatement also of his answer, counsel.
Q. Isn't it a fact -- just tell me if you know -- the Surgeon General made recommendations regarding the design of cigarettes in his 1979 report and his 1989 report?
MR. CIRESI: Objection, repetitious, form of the question.
THE COURT: I'll allow you to answer it again.
A. Could you repeat the question?
Q. Isn't it a fact that the Surgeon General of the United States made recommendations to the industry regarding the design of its cigarettes in 1979 and 1981?
A. The reports that are in front of us, as far as the Surgeon General reports, are addressed to Congress, that's where the Surgeon General reports to, and I have not seen any documents that would say the Surgeon General communicated with your companies, BATCo or to Brown & Williamson or to the other companies about what to do. I haven't seen that.
Q. Take a look at what the National Cancer Institute did on the same issue?
A. They had a working group as far as lower tar/lower nicotine delivery cigarettes. I recall that, yes.
Q. Were there also outside scientists, like Dr. Russell, who made recommendations to the industry to lower its tar deliveries?
A. I don't --
I have not seen a communication between Dr. Russell and the industry, no.
Q. Well I'm talking about publications. You can communicate with people other than by writing letters. You can write articles that make recommendations; correct?
A. Articles are meant to convey the science and to interpret the -- the -- the work that's being done to convey it to the scientific community. That's what -- that's what the articles we're talking about are. That's what Mike Russell's article that you mentioned in the Surgeon General report was to do, it's for the scientific community.
Q. Articles don't make recommendations?
A. Some do.
Q. Some do.
A. Some do. But I don't know -- I don't know that Mike Russell ever had an article recommending to do what you just suggested, which is --
Q. Did you take a look at the articles that Mike Russell published in connection with the Banbury conference in 1980 regarding what should be done with nicotine and tar deliveries?
A. I've seen a lot of his articles. I don't recall the Banbury conference. I can't -- I can't put a hook on that to give you the exact reference. I've seen a lot of his articles. But if you've got it, I'd be glad to look at it.
Q. Wasn't it Mike Russell's view -- one of the people --
Mike Russell was one of the people looking at compensation; correct?
A. He had -- he did --
He's done work with nicotine, nicotine levels, yes.
Q. Yes. And wasn't it Mike Russell's view, even after he had published articles on compensation, wasn't it still his view that the industry should try to bring tobacco deliveries -- tar delivers I down? Wasn't that his view as stated in his articles?
A. I'd have to see the article you're talking about.
Q. Now familiar with those?
A. I'm familiar with a lot of his articles.
Q. Dr. Hurt, it's a fact, is it not, that when the tobacco industry brought deliveries down, tar deliveries down, they did so in response to the concerns being expressed by the public health community, isn't that a fact?
A. I don't know what you're reading from.
Q. I'm just asking you if it's a fact.
A. I don't know what you're reading from, so I -- I'd like to see what you're reading from to know what you're quoting. Where is the quotation from?
Q. Your deposition.
Isn't it a fact that the tobacco industry lowered deliveries in response to the concerns being expressed by the public health community? Isn't that a fact?
A. Was that a question in my deposition?
Q. That was an answer in your deposition.
MR. CIRESI: Well can we have the page number, Your Honor, and the deposition? Could we just follow procedure?
MR. BERNICK: Your Honor, the witness asked me specifically what I was reading. I'd be happy to do that.
MR. CIRESI: Excuse me --
THE COURT: Counsel, it's not appropriate to cite a witness's deposition without giving him the opportunity to see the deposition and the page number and the date of the deposition. That's the appropriate procedure, and we'll utilize that here in this case.
MR. BERNICK: Fine.
MR. CIRESI: May we have the page.
MR. BERNICK: 531.
A. Can you give me a couple more pages? You know, there -- there -- my deposition was two days long and there were about 700 pages of -- actually probably 1200 of this kind of page.
CROSS-EXAMINATION - DR. RICHARD HURT You want to take these back? You can have those.
So is this all my deposition?
Q. Those are the two volumes of your deposition, yes.
A. Okay. I'll just make some more room.
So page 531 is in this volume. Okay.
Q. Have you found the place in the deposition?
A. Yeah.
Q. Okay. In your deposition at page 531, do you recall being asked this question and giving this answer.
"Question: Is it your contention that the introduction of low tar products was just a ploy by the tobacco industry to offer smokers health reassurance?"
And your answer was: "I think it was in part response -- in part in response to what was beginning to become common knowledge amongst the scientific community that cigarette smoking caused lung cancer, heart disease and emphysema, and I think it was in response to that to try to figure out a way to overcome those health concerns. So I think that's the origin of it, because those things happened in the '50s and '60s, and the first thing that happened, of course, was putting filters on them. Putting filters on the cigarette was kind of the first move to, quote, health reassurance, close quote, sort of mode. When the low tar/low nicotine cigarette technology was invented or introduced, if you will, that fed into it. I think it was in response to the concerns being expressed by the public health community."
Was that your answer when your deposition was given?
A. That's what it says.
Q. Okay. Now when these products were introduced, isn't it a fact that the public health authorities also took a position with regard to what consumers should do?
A. I'm not following your question.
Q. Public health authorities, people like the American Cancer Society, did the American Cancer Society make recommendations to consumers regarding low delivery products?
A. They could have, but I -- I would not -- I don't -- I don't recall what those were.
Q. Don't you recall --
A. I don't know what they recommended. I know the American Cancer Society very early on was encouraging people to stop smoking altogether.
Q. Do you recall that the American Cancer Society actually took out ads, Dr. Hurt, saying if you do not smoke cigarettes, you should switch to low tar? Words to that effect.
A. What year -- what year was that?
Q. 1976.
A. If they did, I think they were wrong, because your companies knew a long time before then --
MR. BERNICK: Your Honor --
A. -- that people compensated.
MR. BERNICK: Your Honor, I object to this. I asked him a simple factual question.
THE COURT: It is non-responsive.
A. Could I see the ad? Because I don't recall seeing an ad exactly like that.
Q. Show you AZ82222, volume one, tab three. Why don't you take a look at volume one, tab three.
A. Which tab?
Q. Volume one, tab three.
See that ad?
MR. CIRESI: I don't have it yet.
MR. BERNICK: I'm sorry.
MR. CIRESI: Go ahead, proceed, Your Honor.
Q. Are you familiar with ads like that, Dr. Hurt?
A. I can't --
I guess I can't recall seeing one exactly like this, no. I don't know what the distribution was, what -- where it went.
Q. Do you recall that in the -- one of the exhibits that was shown to the jury as part of your direct examination, this is plaintiffs' Exhibit 1189, the BATCo document dated June of 1978?
A. I can't read that. Can you focus it?
Q. I'll focus it for you. There you go.
Do you see that even at that time the tobacco companies were cognizant, they knew of the fact that smokers are advised by health authorities to smoke brands with lower deliveries if they cannot give up smoking altogether? That's what was going on in the mid-1970s; wasn't it?
MR. CIRESI: Excuse me, counsel. May we have the page number of the exhibit that he's on?
MR. BERNICK: That is your -- that's page one of your exhibit.
THE COURT: Counsel.
MR. BERNICK: I'm sorry.
THE COURT: Just for the court, too, if you'd --
MR. BERNICK: Okay.
CROSS-EXAMINATION - DR. RICHARD HURT THE COURT: -- refer to the page number, it would be of assistance.
MR. BERNICK: I'm sorry. It's page one of Exhibit 1189, Your Honor.
BY MR. BERNICK:
Q. That's what was going on in the mid-1970s; wasn't it? People were being encouraged by the American Cancer Society and other public health authorities to quit, but if you can't quit, use a lower delivery cigarette; right?
A. That's what this --
I don't know where this article was or this advertisement was. It just says it was distributed by the American Cancer Society. So I don't -- it's one page.
Where was it? I don't have any idea where it was. Was it in a newspaper? Is this a newspaper ad?
Q. When you saw the sentence in the document that you read internally, "Smokers are advised by health authorities to smoke brands with lower deliveries," when you saw that in connection with your work on this case, did you ask somebody whether that was true?
A. Oh, I -- I recognize that -- that there are some physicians, even, back in those days that recommended this, but they were wrong. But -- so if this --
If this is something that was in the newspapers, then -- then I -- I guess I didn't see it when it was in the newspapers.
Q. You were a smoker back at this time; right?
A. What's the date on that?
Q. What was the --
This is 1978. What -- you had quit for three years.
A. Correct.
Q. Right.
When you were a smoker, didn't you recall the American Cancer Society, the American Lung Association, taking those positions, or other health authorities?
A. You know, that's what I said all day yesterday. When a smoker is dependent on a subject -- on a substance, you don't pay attention to these things that are around you. I went through medical school as a smoker. I saw lung cancer, heart disease, pathology that was related to smoking, and I continued to smoke because I could rationalize that I would never get that, and I could deny the existence and the connection. So these things may be in the public domain to a certain degree, and this one wasn't enough to at least get my attention back in those days, but the point is that when a person's dependent on a drug, denial and rationalization take hold.
And so if you ask me the question about what I did in those -- do I recall these things the American Cancer Society said? If I heard them, it became part of the denial mechanism that I used to continue to use a product that might cause me to die.
Q. Dr. Hurt, let's assume that public health authorities, as you've indicated, were saying, gee, maybe we should go to lower delivery. Certain of them were.
A. Yes.
Q. Let's also assume that they were telling consumers the same thing.
Isn't it a fact that what the companies did in making lower delivery cigarettes was indeed responsive to both public health authorities and what the public health authorities were telling consumers?
A. That's a long question and asks me for a lot of conclusions. I -- I -- I guess --
Can you rephrase -- or restate the question, because it was a very long question.
Q. Let me -- let me get to it this way.
A. Okay.
Q. Let me -- let me just deal with the ads for a minute.
A. Which ads?
Q. The ads that you talked about yesterday.
There were ads that you talked about dealing with lower delivery cigarettes; correct?
A. Uh-huh. There were some of those, yes.
Q. And you said that those ads were deceptive to consumers because in fact you can compensate; correct?
A. What I said was that those ads were deceptive to consumers because they fed into the rationalization and denial of the individual. They had to do with some compensation, but they made it out to be that these were safer cigarettes. And --
Q. Okay.
A. -- that's -- that's what they said. So that feeds into what -- the person who's a smoker. They assume, the smoker assumes that something has been done to the cigarettes to make it safer, to make it safer for their own well-being, and therefore they -- then that allows -- that endorses their continued use of the product.
Even though they may have heard that it causes hundreds of thousands of deaths, that still integrates into their mind as a rationalization to continue to smoke.
Q. Let me ask you three things about those ads. Three.
Number one, isn't it true that the FTC has had the power and jurisdiction to regulate tobacco company ads since the 1950s, to make sure that they don't contain improper health claims?
MR. CIRESI: Objection, calls for a legal conclusion. Gets into the regulatory process, Your Honor.
THE COURT: Sustained.
BY MR. BERNICK:
Q. Isn't it a fact, Dr. Hurt, that since the early 1950s, there have been regulations governing advertising and health claims with regard to cigarettes?
MR. CIRESI: Same objection, Your Honor.
THE COURT: No, you can answer that question.
A. What I recall is that when the issue of labeling cigarettes with the yield and with the health warnings, I recall that there was a virtual firestorm created by the industry objecting to doing that, to putting the labels on cigarettes that said that they might be hazardous to your health. Now if that's regulation -- I mean the industry fought that tooth and nail.
Same thing's true with advertising on television. Those --
MR. BERNCICK: Your Honor --
A. Those issues as far as regulation are concerned were --
MR. BERNICK: Your Honor, this is totally non-responsive and I move to strike. I asked him a simple question which was regulation on health claims in the early 1950s.
THE COURT: Well, I'm not sure the question is quite that simple. Maybe you should rephrase the question.
BY MR. BERNICK:
Q. Isn't it a fact that since the early 1950s, regulations, federal regulations have been issued regarding making health claims with regard to cigarettes?
A. There have been regulations.
Q. Okay. Isn't it a fact that since that time there has -- there has been scrutiny of all of the tobacco company ads by the FTC pursuant to that regulation?
MR. CIRESI: Objection, Your Honor, calls for a legal conclusion with regard --
MR. BERNICK: It's a fact.
MR. CIRESI: -- to regulatory -- excuse me, I'm sorry.
THE COURT: Counsel, please do not interrupt each other.
MR. CIRESI: Calls for a legal conclusion on the regulatory process.
THE COURT: Sustained.
BY MR. BERNICK:
Q. Isn't it a fact as a historical matter, Dr. Hurt, that the F -- let me -- let me take a step back.
In your professional background, did you have expertise in the fields of advertising and marketing? Do you hold yourself out as an expert in advertising and marketing?
A. No. I'm a consumer, and that's -- I guess that's --
The ultimate expert in marketing is the consumer.
Q. And --
A. That's what I think.
A. -- isn't it true that since the early 1950s, experts acting on behalf of the United States government in fact have reviewed advertisements that have been issued by the tobacco companies regarding their products?
MR. CIRESI: Objection, Your Honor. Calls for a conclusion. Outside the scope of the examination.
MR. BERNICK: Your Honor, it's -- I believe --
THE COURT: Counsel.
MR. BERNICK: I'm sorry.
THE COURT: You may answer that if you know.
A. So repeat the question.
Q. Isn't it a fact that since the early 1950s, experts acting on behalf of the United States government have reviewed tobacco company ads for their content regarding health claims?
A. It could be. I mean I guess I don't know that for sure, but sounds reasonable.
Q. Okay. Including the ads that you displayed to the jury yesterday; correct?
A. I don't know that there were experts who reviewed it, but it sounds reasonable. That -- that sounds like that would be the process that I would think, yes.
Q. And in fact, every one of those ads also contain the warning that's been required by Congress, the Surgeon General's warning required by Congress; true?
A. The ads we saw yesterday included that, yes.
Q. Is it also true --
A. So those -- those were required by Congress. That was -- they were mandated by Congress.
Q. Right.
A. Not the Surgeon General.
Q. Surgeon General's warning as mandated by Congress; true?
A. Right.
Q. Appears on every single one of those ads; correct?
A. Right.
Q. Is it also true that from time to time, where ads have not been satisfactory to those experts, that the Federal Trade Commission has in fact initiated enforcement actions regarding advertisements issued by the tobacco industry?
MR. CIRESI: Your Honor, I'm going to object to that as irrelevant and immaterial and outside the scope of the expertise of this witness.
CROSS-EXAMINATION - DR. RICHARD HURT THE COURT: I think we're getting well beyond his expertise in that area, counsel.
MR. BERNICK: I agree with that, Your Honor.
BY MR. BERNICK:
Q. Now that was the first question that I wanted to ask you, was about the FTC.
Second question I wanted to ask you is about compensation.
THE COURT: Counsel, before we go into the next data, maybe we should recess for lunch.
MR. BERNICK: Fine with me.
THE COURT: Okay. We'll recess, reconvene at 1:30.
(Recess taken.)
CROSS-EXAMINATION - DR. RICHARD HURT AFTERNOON SESSION.
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. BERNICK: Thank you.
Good afternoon.
BY MR. BERNICK:
Q. Good afternoon, Dr. Hurt.
A. Hi.
Q. I think where we broke off this morning, we were talking about the testimony that you offered concerning the low delivery product, and particularly concerning the ads. Do you recall that?
A. Yes.
Q. And I think where we broke off, we'd been talking about FTC activities in connection with advertising over the years, and then I promised a number two which related to compensation.
A. Okay.
Q. Isn't it true that as the years have gone by, research concerning compensation has continued?
A. It has.
Q. Okay. And indeed, people like Dr. Henningfield -- do you --
CROSS-EXAMINATION - DR. RICHARD HURT Is Dr. Henningfield a name that's familiar to you?
A. Yes, it is.
Q. He's one of the authors of the 1988 Surgeon General's report; correct?
A. I believe that's correct, yes.
Q. He's one of the best-known authorities in the field of nicotine addiction; correct?
A. He is very good.
Q. Another name is Dr. Benowitz; right?
A. Yes.
Q. And is it true that both Dr. Benowitz and Dr. Henningfield and Dr. Russell from England have continued to focus on this issue of compensation over the years?
A. Well they've focused on the whole issue of nicotine delivery and nicotine blood levels and those sorts of things. Compensation is one part of that, but it's really broader than just that.
Q. Okay. But they certainly have written articles and focused on compensation specifically; correct?
A. They've written articles about that.
Q. Okay. Now even before recent times, when the compensation issue was still developing, isn't it true that researchers who were looking at compensation were finding that it might not be complete? Do you recall those articles?
A. I can recall some articles like that, but I can't tell you which ones. And if you've got one, we can look at it and talk about it.
Q. Okay. Well maybe I'll do that in a moment. But let's get into and explain a little bit the concept of incomplete compensation.
What would "incomplete compensation" mean?
A. Well, it would be a cigarette that was designed with so many ventilation holes, for example, that regardless of how hard the person puffed on it and how deeply they inhaled and how much they tried, they could not extract enough of the nicotine from the cigarette in order to reach the levels that they usually would have had with a higher delivery product. An example would be Carlton or the ultra low tar/ultra low nicotine delivery systems, and it's just very, very difficult to completely compensate when you have that much ventilation and the other things that are done to those cigarettes. That's what incomplete compensation would be.
Q. Incomplete compensation is where the smoker may try to get more, but in fact does not get as much as he or she used to get from their old cigarette; correct?
A. Yeah. I think that's what I just said.
Q. And isn't it true that even as of 1979, articles were being published showing that compensation is only about two-thirds of the former levels; that is, that the effect of switching down is that in fact you do switch down by a third of your former level.
A. I would have to see what you're referring to, because I don't know what you're referring to.
Q. Why don't you take a look at volume one, tab 35.
MR. CIRESI: May we have the exhibit number, Your Honor?
MR. BERNICK: Yes, it's Exhibit GK354.
A. 35? 35?
Q. Volume one, tab 35, yes.
A. Okay.
Q. Okay. Do you see that's an article about -- that deals with the issue of compensation, self-titration?
A. The title is "Self-Titration by Cigarette Smokers."
Q. This is another article that was written by Dr. Ashton and published; correct?
A. Yes. It was Dr. Heather Ashton, but it doesn't say who were the sponsors of the research, so I guess --
They usually put that down at the bottom of the page. It's from the Clinical Psychopharmacology Unit, Clinic of Pharmacology, University of Newcastle. Doesn't mention the funding source that I can see.
Q. If you take a look at the back -- at the last page, I think the acknowledgment appears at the last paragraph.
A. Yes, The Tobacco Research Council and generous financial help.
Q. So this is more research that was published with tobacco industry sponsorship?
A. Correct.
Q. Okay.
A. That's what it says, yes.
Q. And it's published in the British Medical Journal. That's, again, I think you mentioned this morning, a peer review publication?
A. Yes, it is.
Q. And a fairly prestigious one; is it not?
A. We kind of tend to think about peer review journals and levels, and this would probably be in the second level of that.
Q. Okay. And do you see -- if you want to just take a look at the summary and conclusions, the conclusion is reached about whether compensation is complete or not?
A. Well you know, if I've read this article before, I'm not sure when it was, and so if I'm really going to comment about it, I need to take some time to look at it. I don't think this is one identified in my expert report as being something I reviewed for my expert testimony.
Q. Can you identify any study or any research that you are familiar with and can testify to, you know, a particular study regarding incomplete or partial compensation?
A. I think there was one by Benowitz, maybe, and one by Henningfied.
Q. Well let me get to Benowitz, then, because -- then maybe to shorten things up here, let's go to 1994.
Are you familiar with the article that Dr. Benowitz published in 1994 on this subject?
A. He publishes about 10 or 15 articles a year, and I -- if there was one in 1994, I couldn't recall exactly what it is. But maybe you've got it for me.
Q. Well do you recall the article -- or the position that he has now taken, Dr. Benowitz has now taken a position together with Dr. Henningfield on compensation, have they not?
A. There has been a proposal, I