CROSS-EXAMINATION - DR. RICHARD HURT 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 10, PAGES 1775 - 2017
FEBRUARY 2, 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: Thank you.
Good morning.
(Collective "Good morning.")
13DR. RICHARD D. HURT
called as a witness, being previously
sworn, was examined and testified as
follows: CROSS-EXAMINATION (cont'd) BY MR. BERNICK:
Q. Good morning, Dr. Hurt.
A. Good morning.
Q. I'd like to create a bridge from where we were last Friday. I think we'd left off talking about the success rates of your clinic, and I also want to talk about the success rates of other programs and other ways of quitting for just a moment.
A. Okay.
Q. But maybe in order to create that bridge in talking about success rates, let's begin by talking about your clinic in particular and the kinds of patients that come to see you.
A. Okay.
Q. You --
It's called the Nicotine Dependence Center?
A. That's correct.
Q. And am I correct -- I think you said this under direct examination -- that by and large the people who come to see you are people who are referred by another doctor?
A. Eighty-five percent are referred by physician, 15 percent are self-referred.
Q. Okay. So it would be safe --
Is the right term "physician referred," that 85 percent?
A. That's correct.
Q. And is it true that with regard to this population of people who come to see you, that by and large, as compared with smokers generally, that they tend to have -- or I should say people who are thinking of quitting, that these are people who may not really be ready to quit. They may be, in fact, unwilling to quit.
A. The ones we're talking about here?
Q. Yes.
A. They're -- they're all -- all sizes and shapes and form. I mean after 15,000 or so patients, which is the number we've seen, the spectrum varies from those who don't really want to stop at all, who we would way are pre-contemplaters who never really thought about this before, all the way to those who are in action even when the physician first sees them. So it's a spectrum. It's just not a one or the other.
Q. But if we want to compare the group to those people who we are going to talk about in a minute; that is, people who are self-referred, that is, come to a quitting program, your group would have -- tend to have more of the people that are unwilling or not yet ready.
A. Oh, that's true. If you're -- if you self-refer yourself, you would be in a later stage of -- of readiness. That's correct.
Q. Okay. So let's make another category here and talk about self-referred.
And again, would it be fair to say that with respect to your group, you have more of those who are --
What's the best word? Not ready?
A. Pre-contemplaters, contemplaters. They --
Again, the definition is the pre-contemplater is a person who has not decided to stop smoking at all, they haven't even thought about it before. So when you ask a person about their smoking behavior, you ask that: "Would you like to talk about your smoking? Are you interested in thinking about it?" And the response might be, "Get out of my face. I don't want to hear anything about this. I don't want to talk about it." That's the pre-contemplater.
Q. Okay.
A. So there would be some of those. And there would be people who are contemplaters, who would be, "Well I've thought about it before, but maybe I'll do it on my birthday which is in August." So it's a long way out. And those that are in preparation would be those who say, "Well I've thought about it some. Maybe I'll do it in the next 30 days." So they're just stages of change that occur.
Q. In fact do you have some people who are referred by their physicians, but they just don't really want to be there at all?
A. Correct. And some -- some that are referred by their physicians who are in that stage of readiness never even show up at all. I mean they don't follow through with the appointment.
Q. You got some people who are no-shows.
A. Yes.
Q. Or unwilling.
What about in terms of degree of dependence? Would you say that the group of people that you tend to see are more or less dependent than those who are in the self-referred group?
A. Well we see both groups. I don't -- I don't mean to imply that we don't see both groups. And I --
Those that would be physician-referred might be a little more dependent, but it -- it -- we've never really analyzed it completely in that way. But they might be.
Q. Would it be fair to say that the fact that -- of the kind of people that you see; that is, that they are physician-referred, is both one of the strengths of looking at this group of people, but it's also one of the weeknesses because they tend to be a different kind of group from what you see in the self-help or voluntary programs?
A. Well we kind of see the whole spectrum, and so there will be some of those mixed in with that. And in my own practice, in my internal medicine practice, I see people from the community who are not self-selected. They come just to see the -- see the physician. So I have a large number of those that I see in my own practice who are really not on this -- this -- this scale at all that I might deal with individually.
Q. But if you take a look at the group as a whole, I mean haven't you said yourself that the fact of who these people are and that many of them really are not motivated to proceed is both one of the strengths of the program but also one of the weaknesses, one of the problems you have?
A. Well one of the ideas for the -- for the clinician is to try to move that person from pre-contemplation to contemplation to preparation and then to action. That's -- that is equated with success in the way that we deal with -- with smokers.
Q. Okay. Now a self-referred program, I think that you said that there was a predecessor program to your own at Mayo?
A. No. That's --
The predecessor is for the whole -- whole Nicotine Dependence Center. "Self-referred" just means how they got to see the counselor or got to see us in the Nicotine Center.
Q. Before the Nicotine Dependence Center was established, I thought you said that there was an earlier program that began in 1975.
A. Right. That was called The Smokers Clinic, correct.
Q. That was called The Smokers Clinic?
A. Right.
Q. And -- and has that been described in your own articles as being a program where people from the community come in --
It's a self-referral program?
A. Well I -- I wouldn't put it the way you have it. That's not accurate. The Smokers Clinic was the only program we had from 1975 through 1988, and it was -- people were referred to it by their physicians because people within the medical community knew about the program. So it wasn't only self-referred.
Q. Okay. So both self-referred and physician-referred?
A. Oh, yeah. Oh, yeah.
Q. Okay. Fine.
A. Sure, yeah. But it was only run three times a year, so it really only applied to people from that general vicinity, Rochester and Olmstead County --
Q. Okay.
A. -- and the surrounding areas.
Q. Okay. And then would it also be fair to say that there are a bunch of people out there who never really attend any kind of clinic, --
A. Correct.
Q. -- but we call -- what's the -- self-quitters or --
A. They have self-help sort --
Q. Self-help?
A. -- of programs. Right.
Q. Now I think you said on direct examination that the success rate that you see within one year, that if you go for a year, follow people for a year after they start through the program is about 22 percent?
A. If -- if --
Q. All --
A. If they've received the basic service, which is the consultation plus the basic follow-up.
Q. Okay. Do you have data that says what's happened to those people over a longer period of time; that is, that --
It's true, is it not -- let me just ask you this as a background question -- if you follow people for a year, you can see how many of them that started with the program in fact have quit, but that in succeeding periods of time some of those same people will in fact later quit successfully on their own?
A. Or relapse.
Q. Or go through another program.
A. Or relapse. I mean there is a relapse rate after a year. The relapse rate usually occurs within the first couple of weeks, and then after that it goes down. But at the end of one year, that's not completely stable either way.
Q. Either way.
A. Either way.
Q. Okay.
A. People tend to continue to try to stop because they have other -- other contacts, other interventions, but they also will tend to relapse. We've had people who relapse after being abstinent for many years.
Q. Fine. Have you done a study to determine what the rate is over a longer period of time for your program; that is, the success rate over a longer period of time?
A. No, we really haven't. We did in The Smokers Clinic, but that was a retrospective look.
Q. Okay. Let's talk about The Smokers Clinic.
As I understand it, in The Smokers Clinic after one year it was basically the same range?
A. That's right.
Q. Is it also true, though, that as a result of spontaneous quitting or being part of another program elsewhere, that this number continued to rise as the years passed from The Smokers Clinic?
A. Yeah. But you -- I think that's where we left off on Friday. You have to be really careful with that because the denominator, which is the number of people that entered the program at the beginning, and then you follow those across time, that number became less because we lost people to follow-up, we couldn't follow them up any more. So in an intent-to-treat analysis you would count all of the people that entered in the denominator all the way across. So because we couldn't follow them all the way across, it looked like there was a cumulative increase in the smoking cessation rate over time. And that's a probably --
Q. But that's in fact -- that's in fact what was reported --
A. Right.
Q. -- when the article that was written.
A. Yeah.
Q. There was in fact an article that was -- was written by you talking about the -- about the success rate in your program, I think it's in volume two, tab 83, if you could take a look in your book.
MR. CIRESI: Exhibit number, please.
MR. BERNICK: It is -- it does not have an exhibit number. It was previously designated, but does not have an exhibit number.
MR. CIRESI: May we have the title?
MR. BERNICK: Yeah. "Long-term Follow-up of Persons Attending a Community-Based Smoking- Cessation Program."
MR. CIRESI: That's Exhibit No. 25008.
MR. BERNICK: Okay. That's your exhibit number?
THE WITNESS: That's correct.
MR. BERNICK: The state's exhibit number?
MR. CIRESI: That's correct.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. Is this an article that you wrote, Dr. Hurt?
A. I along with the other people listed, yes.
Q. Yeah, but you're the lead author; are you not?
A. Yeah. But that doesn't mean I wrote the whole thing.
Q. Okay.
A. When you have authors, when they're included, everybody contributes, so it's not mine alone at all.
Q. That's fine.
MR. BERNICK: We would offer this, Your Honor.
MR. CIRESI: No objection under 803(18), Your Honor.
THE COURT: Court will receive 25008. BY MR. BERNICK:
Q. This is the first page that we see here; correct?
A. Yes, it is.
Q. If we zoom in, I've highlighted your name, and we then go forward -- and I guest chart that I wanted to focus on is the easiest chart to read. This appears over on page 5686. Is that what we see at 5686?
A. You mean 686?
Q. I'm sorry, 686, yeah, right.
A. Uh-huh.
Q. And does that reflect that you started out at 22 percent after one year -- that would be right there.
A. Correct.
Q. After seven years you're at 47 percent, and then after 10 years of follow-up the success rate has climbed to 62 percent.
A. That's -- that's what it reports, yes.
Q. Okay.
A. But again, you have to look at the numbers underneath in parentheses. That's the denominator effect. And so as you go across time, we have fewer and fewer people that we're able to follow --
Q. I understand.
A. Because over time we don't -- aren't able to follow them all.
Q. Right. You have -- you have --
In any study that's a retrospective study, as time goes on, the ability to contact people and get information from them deterioriates.
A. Correct.
Q. Okay. So you just have fewer people to work with.
A. That's one of the flaws of retrospective studies as opposed to prospective studies.
Q. And you concluded, in discussing the findings of the study, that permanent cessation continues --
A. Where are you? What page are you on?
Q. I'm sorry. This is page 688. And I kind of cut it off at the wrong place when I bracketed it here. It says, "Although the one-year smoking cessation rate is important for the evaluation of a program, this study showed that further changes in smoking behavior occurred after one year. Permanent cessation of smoking continued to occur at least through six years of followup and occurred at a higher rate than the one-year cessation rate after physician's advice alone. As such, the cumulative smoking-cessation rate continued to increase beyond that expected as a result of spontaneous cessation of smoking."
What's spontaneous cessation of smoking?
A. Well we don't know exactly the reason why they stop and we didn't have information to be able to tell the reader why they stopped, so we termed that spontaneous.
Q. Okay.
A. It may have been --
Q. That's not part of the program, it's some --
A. Yeah. The problem is trying to take credit for the program for these things that occur later on. It's just -- you can't do that. So there is a spontaneous rate. We don't know exactly why those people may have stopped. They may have had a heart attack and stopped, it's hard to know. But there was a cessation rate later on, and it was in the two-and-a-half- to six-percent range or eight -- 8.8 was the highest one, that's on Table 5. So it's small. And that's when we said in the -- in that part of the discussion it's less than -- or actually more than what would happen with physician advice alone.
Q. And that table that you talk about there says 22 percent quit after the first year, and then in each succeeding year you get an additional percentage that you're adding on.
A. That's correct.
Q. That then gives you the total that appears here on the back.
A. That's correct. That's where the 62 percent comes from.
Q. Okay. Now with respect to programs where --
Well let's go down to the bottom one here. Have -- have success rates --
I think you gave a success rate for people who get on their own, a one-year success rate of about five percent?
A. It's in -- it's in the five to seven percent range. Depends on which study you read.
Q. Okay.
A. It's relatively small.
Q. But again, if we wanted to go beyond just that one year and talk about the success of people who quit on their own after one year, isn't it true that again you'd get numbers -- I think Dr. Fiore's numbers are in the range of approximately 40 percent or more. There's a range that gets reported. But you can get success rates in self-help studies of upwards of 40 percent after more than one year. In fact, I think that's a 10-year figure, correct?
A. I'd have to see what Dr. Fiore said. I don't recall that number specifically.
MR. BERNICK: This is not a disclosed document, this is a study by Dr. Fiore. We'll not offer it in evidence.
MR. CIRESI: It's not a disclosed document?
MR. BERNICK: No, that's correct.
MR. CIRESI: Do you have a copy, counsel?
MR. BERNICK: I've got my copy.
MR. CIRESI: Well I'll take that.
Thank you.
MR. BERNICK: I'm going to need to display it here in a minute, but -- BY MR. BERNICK:
Q. See that Dr. Fiore also has studied the issue of quit rates, actually comparing quit rates between programs, formal programs and self-help programs?
MR. CIRESI: Excuse me. Your Honor, again, there's not an exhibit offered, there's been no foundation laid, and he's testifying from the exhibit.
MR. BERNICK: I'm going to ask him questions.
MR. CIRESI: I object to the form -- I object to the form of the question.
THE COURT: Sustained.
MR. BERNICK: Okay. I'll reput the question. BY MR. BERNICK:
Q. Dr. Hurt, people like Dr. Fiore have studied this group; correct? This focusses on --
A. I haven't read this in -- I don't know when the last time I read it. I read it before. The title is "Methods Used to Quit Smoking in The United States: Do Cessation Programs Help." If I'm really going to get into very much detail for what your questions are, I'm going to need to read this --
Q. Okay.
A. -- in order to refresh my memory. It's been -- I don't know when I last read this. I read it before, but it's probably been months or maybe even longer.
Q. Well let me ask you a general question.
A. Because this was written in 1990.
Q. Sure.
A. It's not one that I refer back to every day.
Q. Is Dr. Fiore one of the other people that does research in this area?
A. Dr. Fiore does a lot of research in nicotine, yes.
Q. And based again on your own knowledge, have you studied, have you reviewed the articles that deal --
You testified on direct examination to this number here. That's a one-year number.
A. Uh-huh.
Q. Have you reviewed the articles in the literature that deal with what the success rate is of self-quitters over longer periods of time? Have you done that?
A. I have, but I couldn't -- you know, I would have to go back and look at articles like this to give you any numbers.
Q. Okay. So right now --
A. There is a rate and it depends upon the study, and this is one study, and there are a lot of studies out there. Ours is one study, but I said earlier, it has its own little flaws because it was a retrospective study.
Q. Okay. But at this point in time you're not able to tell us what the quit rate is for people who quit on their own?
MR. CIRESI: Objection. It's a misstatement.
MR. BERNICK: I'm just asking.
MR. CIRESI: Objection. Misstatement of the evidence.
THE COURT: Do you understand the question?
THE WITNESS: I'm not sure.
MR. BERNICK: I'll reput it.
THE COURT: Rephrase the question, please.
MR. BERNICK: Sure. BY MR. BERNICK:
Q. At this point, Dr. Hurt, are you able to tell us the rate at which self-help quitters, people that quit on their own, the rate at which they succeed beyond one year of follow-up? Can you tell us that?
MR. CIRESI: Objection, no foundation. It would depend upon the study.
MR. BERNICK: I just laid the foundation, Your Honor.
THE COURT: You may answer that.
A. It would depend upon the study. And there is a rate and there are published articles like this one that would say that it's in -- in a five or so percent range on --
These people are repeatedly trying to stop. If they haven't stopped the first time that they tried to do that, they will -- they will try again at some time in the future. Whether or not that person in year one tries again in year two, three or four or five, is dependent upon that individual. So there is a -- a -- a stop rate in the future, and it's probably still in the single-digit numbers as far as success rates for people who have failed before. But it depends how long you follow them. If you follow them long enough, you know, if you follow them long enough over time --
Q. Yes.
A. -- then there will be another stop attempt in the future or they will have a serious medical consequence or they will die. I mean so -- you have to --
What length of time is important as far as that statement is concerned.
Q. Can you give me success rate, the successful quit rate for self-help quitters for any year beyond the first year; that is, after five years or ten years?
A. It won't --
It will be in the same single-digit five to seven percent range --
Q. Per year?
A. -- that it was in the first year. But then you're going to be recycling people through all over again. Those are still the 95 percent that didn't stop that tried to stop at one year, at some point in the future they will try again.
Q. Okay. And if we -- if we were to follow --
A. And so if it's focussing in year three, then that same rate would be probably operational at the five to seven percent range.
Q. Well --
A. So I don't -- so I don't know where the 40 percent comes from. That's -- I'd have to read this article to see why he said that.
Q. Let me just make sure I understand what you're saying. In each succeeding year these people may decide to quit again.
A. The 95 percent that did not.
Q. The 95 percent. In other words, five percent successfully --
If we start out with a group of a hundred people, first year, 95 percent try to quit, fail to do so, five percent succeed. We then follow that 95. What you're saying is that in each succeeding year we would get, again, five percent successful, 95 percent not successful?
A. It would be in that range. But I'd have to again look at the study we're talking about. And it depends on what happens to them. You know, probably one of the most effective forms of smoking intervention is the heart attack, and only half of those stop smoking. So it depends on what happens to the people as time goes on. You can't separate them in time.
MR. BERNICK: Your Honor, this is -- this is not responsive. I think I'm asking fairly simple questions.
THE COURT: No, I think that last answer was responsive to the question.
MR. BERNICK: Well then maybe I'll rephrase my question, Dr. Hurt.
THE COURT: Counsel, it's been ruled on as responsive.
MR. BERNICK: Okay. Well then I'll ask a different question. BY MR. BERNICK:
Q. I'm really focused on the total cumulative success rate of people who quit on their own. Can you tell me the total cumulative success rate of people who quit on their own in the years past year one?
A. It would be in that range, the five or -- five or seven percent range on an annual basis.
Q. I said --
A. But the --
MR. CIRESI: Can he finish?
Q. -- total --
MR. CIRESI: Excuse me. Your Honor, he interrupted.
THE COURT: Yes. Please allow him to answer the question.
MR. BERNICK: I'm sorry. Sure.
A. So it would in the five to seven percent range in year two just like your drawing had started out, but it depends on the population, it depends on the people that we're talking about. And it's -- it's not simple, it's not simple at all because people are different, their circumstances are different, their medical complications are different too.
Q. What do the researchers conclude about the --
Your program is, I think you said your facility is unique? "Unique facility," I think those were your words?
A. I think it is only because of the breadth of the interventions we provide. We're not any better than anybody else at it, we just have more interventions to provide, more services for the patient. Not anybody else that I know has outpatient programs, inpatient programs to the extent that we do.
Q. By and large, isn't it true that the research shows that there may be unique programs that have very high success rates, but that by and large people who use self-help tend to be more successful in quitting than people who go to programs? Isn't that what the research shows?
A. I'd have to see what research you're talking about. If you've got something in mind, we can look at it. But I wouldn't make a blanket statement that research shows, and there's a lot of research that's going on.
Q. Well --
A. So if you got something we can look at, I'd be glad to look at it.
Q. Before you came in to testify, you talked about --
You came to testify about your research program -- your -- your Nicotine Dependence Center program; correct?
A. No. I came to testify that nicotine is addicting and the other things we talked about earlier. I didn't come to talk about our program necessarily, it just happens to be that's what I do for a living.
Q. Well I thought you testified your program -- on direct examination and the program and the procedures that you followed; didn't you?
A. Say that again.
Q. On direct examination, didn't you come to testify about the program and the procedures that you follow?
A. I think my expert report really outlines what -- what my opinions were as far as the reasons I came to testify. Had to do with nicotine addiction, manipulation of nicotine. Those -- those sorts of things are the --
My program is part of what I do for every day -- my everyday life.
Q. Did you or did you not testify on direct examination to what your program did?
A. I did.
Q. Okay.
A. I was asked the question. I answered the question.
Q. And before you came to testify to that, did you take a look at the research to see whether the procedures that you outlined to the jury were more or less effective in producing quitting than self-help? Did you do that?
A. We looked at all of the literature that was available at the time that we started the program back in '88 as far as other types of programs that were available. Self-help is one of the things that we looked at, yes.
Q. So you reviewed that literature before you came in to talk to this jury?
A. I reviewed that literature before I started -- we started the program back in '88. That's been ten years ago.
Q. In preparation for your testimony, did you take a look at the research on whether self-help was more or less effective than your program?
A. Not in preparation for this. This is -- you know, as I said, this is the foundation of our program itself, was higher levels of interventions produce better success rates. Higher level of interventions above -- above self-help would be expected to produce better success rates.
Q. Well what does the research then show --
The research where the researcher compares between self-help and cessation programs, which is the more effective? What does that research show?
A. Self-help versus --
Q. Cessation programs.
A. It depends on the cessation program. And -- and for ours, it's several times higher than it is for -- even for physician intervention. So if you have levels of intervention, self-help would be one, physician intervention would be the next level up, counselor intervention would be the next level up, and then so on. So that's the basis for which we have looked at our program over the years.
Q. What about Dr. Fiore's research, are you familiar with that research on that subject?
A. I have to see which articles --
He's written a lot of articles, so if you've got an article you'd like me to review, I'd be glad to do that.
Q. Well the one -- the one in front of you --
A. And he -- his group is very prolific. They publish like --
(Discussion off the record.)
Q. It's the article in front of you, but that's all right, we'll -- we'll come back to that in a minute.
With regard to the people who are not the quitters, as people who continue to smoke who either have attended or not attended one of these programs, let me ask a couple questions about that.
You testified on direct examination, and I think you referred to a document that said that most people, when asked, say they would like to quit. And the numbers are very high, 80, 85 percent I think you had in the document; correct?
A. The numbers are very high, yes.
Q. Isn't it true that when people come to talk to a doctor about their smoking and the doctor tells them that they should stop, that very frequently -- what -- what -- the information that you're reciting there picks up on the patient's response, the patient says well I'd like to quit but I can't. Isn't that the source of the information, the source of the 80 or 85 a percent number?
A. Well the 80 to 85 percent number comes from surveys that have been done like the surveys done in the internal documents as well as surveys of -- of others. I'm not -- it doesn't only come from the physician interaction. Very few people come in to see the physicians saying I want to come in to stop smoking. That's not exactly the thing that most of them come in for. Most of them come in for other reasons, and it's incident to that intervention -- or that -- that occurrence that smoking may come up.
And we spend a lot of effort trying to teach our physicians to at least ask about it, because unless they ask about it, then the smoker may or may not even want to talk about it. So it doesn't necessarily come from that sort of information.
It could, but there's surveys that have been done asking people that same question.
Q. Isn't it true that the reliability of those numbers has been questioned by people like Dr. Koslowski because of the patient's incentive to say yes, I would like to, but I can't?
A. I don't know what --
You obviously have a study you're referring to, and if you'd like, I'd be glad to look at it.
Lynn Koslowski writes lots of articles, and so for you to say that makes it -- I can't answer that because I don't know which article you're talking about. He also talks about ventilation, low tar/low nicotine cigarettes, people being unaware of the ventilation holes in the cigarettes, covering up ventilation. He -- he's written a lot of things. So he's a -- he's a very, very prolific writer. So I couldn't tell you that. Maybe you can show me.
MR. BERNICK: This is GK -- GK112. Sorry, Your Honor, this is not in the notebook that we've prepared, but it's been disclosed.
Let me switch. I'm going to direct your attention to that highlighted page. BY MR. BERNICK:
Q. Dr. Kozlowski is a -- a -- an established researcher and writer in the area of smoking behavior; is he not?
A. He is, yeah.
Q. Okay. And this article that's before you appears in The Lancet, which is a peer-reviewed journal and a prestigious one?
A. It is.
Q. Okay. And Dr. Koslowski in this article is writing in fact about smoking behavior; is he not?
A. It says "What Researchers Make of What Cigarettes Smoking Say: Filtering Smokers' Hot Air."
MR. BERNICK: Okay. We would offer it, Your Honor, as a learned treatise.
MR. CIRESI: No foundation yet, Your Honor. He hasn't asked whether he's relied on it.
MR. BERNICK: I don't believe, Your Honor, the rule requires that he rely on it. The rule requires that it be established to be a reliable authority. Otherwise, the expert would be able to define what it is that he can be crossed on.
THE COURT: Doctor, have you read the article?
THE WITNESS: I have not.
THE COURT: Well I think he has to have the opportunity to read it --
MR. BERNICK: Oh, surely.
THE COURT: -- so we know if it's reliable.
MR. BERNICK: Sure, go ahead. Why don't you take a look at it.
THE WITNESS: Read the whole article?
MR. BERNICK: It's one page long.
THE WITNESS: Okay, be glad to.
Okay.
Q. Dr. Koslowski has written an article; correct?
A. Correct.
Q. Published in The Lancet; correct?
A. 1980.
Q.
in The Lancet, March 29 of 1980.
A. Right.
Q. Okay. The Lancet is a peer-reviewed and authoritative journal in the field of medicine?
A. It is, yes. Uh-huh.
Q. And Dr. Koslowski is a recognized authority in the field of addiction; correct?
A. Particularly with regard to smoking, yes.
Q. Okay.
MR. BERNICK: We would offer this article as a learned treatise, Your Honor.
MR. CIRESI: Under 803(18)?
THE COURT: Yes.
MR. CIRESI: We have no objection.
THE COURT: Court will receive GK112. BY MR. BERNICK:
Q. Title of the article is "What Researchers Make of What Cigarette Smokers Say: Filters Smokers' Hot Air." Correct?
A. That's what it says.
Q. And the article actually begins by talking and pointing out the fact that "given the widespread harassment of cigarette smokers and the evidence that smoking actually is dangerous to health, it is not surprising that smokers sometimes lie about their smoking. Lying about smoking habits has become so commonplace in smoking-treatment clinics that many researchers have used assays for the biological markers of smoking to confirm their patients' claims to have stopped smoking."
The article then goes on to discuss the literature --
And before it does that, do you see where it says, "Since researchers have readily challenged the validity of the verbal reports of smokers on the above issues, it is surprising how rarely they have second-guessed the claim of -- claims of smokers that they want to or have tried to stop smoking." Do you see that?
A. Uh-huh.
Q. "How better for a smoker to avoid the pesterings of a physician or other interviewer than to say, whether believing it or not, that he wants to and has even tried to give up cigarettes? And, if the questioner asks if the attempts to stop have been serious, who would want to confess to a half-hearted effort? Yet, answers to questions on wanting to stop and trying to stop have regularly been used uncritically -- as if the smokers must -- now must be telling the truth."
He then goes ahead and reviews McKennell. McKennell is a researcher that deals -- dealt with smoking dis -- what's called smoking dissonance; correct?
A. I don't recall his name at all.
Q. Well you showed the jury in your direct examination a study called project LIBRA -- that's Plaintiffs' Exhibit 11102 -- in talking about how smokers deny the risks of smoking. Do you recall that?
A. I recall that, yes.
Q. Isn't it a fact that the LIBRA study was based upon McKennell's work?
A. I'm -- I didn't know that until right now. If that's correct, that's correct.
Q. Have you taken a look --
When you talked about the scientific literature, you talked about the fact of smokers' denial, have you familiarized yourself, are you an expert in the area of smoking cognitive dissonance; that is, have you taken a look at the studies that have been done?
A. I've looked at some of those studies, yes.
Q. Isn't the fact that the originator, one of the originators of this theory wrote about this theory as early as 1957 in the published literature, Dr.
Ketsinger?
A. Could be. The cognitive dissonance theory has been out there for a long time, and in the current mode of talking about that, that is not something that is generally acceptable within -- within this field. We don't -- we don't do that. We talk about denial, rationalization, which is basically the same thing that -- that dissonance was back, you know, 40 years ago.
Q. So cognitive dissonance is no longer what?
A. Well, if I were to call upon a psychologist at the Mayo Clinic and ask him "Do you operationalize cognitive dissonance in your everyday activity as a psychologist?" They would say, "That's really old. We don't do that that much any more."
Q. No longer the accepted theory?
A. It's -- it's no longer operationalized when you take care of patients.
The terms have changed over time, and so cognitive dissonance is, in many respects, rationalization when you're dealing with an addictive disorder and denial.
Q. Is it dissonance with two esses or one?
A. Two.
Q. So the LIBRA study that you cited to the jury, Plaintiffs' Exhibit 11102 --
A. Well LIBRA was the code name. It sounds like a country, you know, so I --
Q. But that was a cognitive dissonance study; wasn't it?
A. It -- I think you're right.
Q. So a -- a researcher today --
A. And I -- I don't know if that study was even published. Maybe it was pubished in the scientific literature. Maybe you know. It was a B.A.T study, I think, from your company, so I don't know if it was published in the scientific literature or not as the project LIBRA. Was it?
Do you know whether project LIBRA in that B.A.T study that you said to the jury, said anything different from what McKennell said in the published literature at the same time?
A. I'd have to -- I'd have to go back and compare the two.
Q. Well the literature review takes place, Dr. Koslowski goes through studies like McKennell's and then comes back to conclude, "We have described some inconsistencies in the application of critical acumen to the verbal reports of smokers and have encouraged caution in what is made of what smokers say about their wish to give up smoking and their attempts to do so. Misleading self-reports (whether self-serving or even self-castigating) are not limited to smokers; people who are overweight or who are guilty of any of the presumably behaviorally correctable sins of our age are likely dissemblers. Whatever may cause these lapses in discernment on the part of the investigators, we know of no reliable cure and have ourselves lapsed on exactly those same rules." Do you see that statement there?
A. Same issues, yeah.
Q. And Dr. Koslowski is not the only one who has spoken out and said let's be cautious when we take those figures of how many people wish to stop. He's not the only one who said these words; is he?
A. Well I think that implicit in this article is also the self-report of abstinence, and that's the other side of this, biochemical confirmation of abstinence.
And there is an old article, this is written in 1980. There is a whole literature about biochemical validation of self-report that has evolved since then, and more recent articles would say self-report of abstinence is really a very good way of doing it. We realize that some people will not always be able to tell us exactly how much they're smoking or even if they are smoking. They may be embarrassed. But as a rule, the self-report is a very reliable measure even for abstinence. And that's been shown in two or three or actually several different reviews that are, you know, much more recent than this one. So --
Q. None of which you've brought to this court though.
A. Pardon?
Q. None of which you've brought to this court.
MR. CIRESI: Objection, Your Honor. It's irrelevant, argumentative.
THE COURT: It's argumentative, counsel. BY MR. BERNICK:
Q. Isn't it a fact that when we take a look, Dr. Hurt, at the population of people who have not quit, that you yourself are not able to define any set of smokers who you believe are fundamentally not able to quit? Isn't that true?
A. I really don't know. I don't follow the question at all.
Q. Well we've talked about all the people who have successfully quit. We've talked a little bit about the people who say they would like to quit but have not. That's what the subject of Dr. Koslowski's article is.
Isn't it a fact that even based upon all the experience that you have, you are not prepared to say today that there is a group of smokers who can't quit? Isn't that true?
A. If I had a patient in front of me that has tried to stop smoking multiple times before, would I give up on him? No, I wouldn't do that.
Q. And more than that, you would further not say that there is a group of smokers that can't stop; true?
A. I think I just said what I would say, and that --
There's no way to identify prospectively in a person in front of you who may have tried dozens of times before to stop, whether or not they're going to be able to stop on this attempt. Maybe we have better treatments now, maybe they've had other influences that go into it. So I -- trying to identify --
If I have a patient in front of me, it's a patient, you know, and I try to do the best I can in taking care of that patient. If that patient fell into a group that I kind of a priori said, well there's no point in worrying about you, so I won't bother talking about your smoking, that would be -- I think that would be a serious error on my part as a physician. I just wouldn't do that.
Q. Well I'm talking, though, about not just an individual, I'm talking about the ability to even define a group. Isn't it true that basically you believe that stopping smoking is a process and there is no defined group of people who you say "These people just can't stop?" There is no such group; correct?
A. You're reading from what I'm not sure, but I do say frequently that stopping smoking is a process, and we -- I have written that in other things that I've written. Because it is a process. It doesn't happen all at the same time. And if a person can stop on their own without me doing anything, that's fantastic. I think that's great. I have no -- I have no preconceived notion that everyone should come to a smokers clinic to do something like this, and if a friend or relative or neighbor is able to stop on their own, I think that's fantastic and I think they ought to be -- feel really good about themselves about being able to do that.
I have people call me up all the time to tell me, I see people on the street that say you don't remember me, but back five years ago I was in your office and we talked about this, and I didn't want to do something then but something's happened in between. I just want you to know that I've stopped smoking a year and a half ago. That happens not every day, but it happens a lot.
This is a process that takes a long time for some people, and some people never get it, and some people do die of tobacco-related diseases.
Q. But you cannot define any group of people, because it's a process, there is no group of people that you can say this group of people, they're just not going to be able to stop; true?
MR. CIRESI: Objection, asked and answered.
MR. BERNICK: I don't think I've got an answer.
THE COURT: It's repetitive.
MR. BERNICK: I don't think I've got an answer, Your Honor.
THE COURT: Sustained. BY MR. BERNICK:
Q. Did you give a deposition in this case, Dr. Hurt?
A. I did.
Q. This is at page 150, if you want to take a look at your deposition. I think we put it over to the right side there.
A. Which volume?
Q. Would you take a look --
I think it's probably going to be volume one, page 150.
A. Okay.
Q. Do you see you were asked this question and gave this answer at line eleven. "How do determine -- How do you determine which set of smokers simply can't stop?
"Answer: I don't think there is a set that simply can't stop. I mean, the example I gave you earlier about the guy that finally stopped but after he had developed lung cancer, was able to stop but it took a long time. Stopping smoking is a process, so I don't know that there is a group that I'd say can't stop. There are obviously some that are more difficult to treat than others and some end up dying of their tobacco-related diseases before they're able to stop with other methods. So when a patient's in front of you, you may want to try to help them, and if they are a smoker you want to try to help them smoking.
"Question: Have you ever had anyone go through the program at the Mayo Clinic, and either at the end of that program or thereafter, relapsed, who come back to you and you told them 'I just don't think you can do it. You are wasting your time and my time?'
"Answer: I don't recall ever saying like that -- anything like that to any patient. What we try to do is to figure out different options for them to use just like we were treating any other completely condition. I mean just -- just because a person's blood pressure isn't under control with one or two different medicines doesn't mean we should say you're stuck with it. We try to continue to work with them to fix whatever the problem is."
Were those questions asked of you and were those your answers in deposition, Dr. Hurt?
MR. CIRESI: Your Honor, totally consistent with what's been testified to here.
MR. BERNICK: Well Your Honor, I object to the statements in front of the jury. The jury can reach their own conclusion about the answer that he gave. The question is whether there's a defined set of people who can't stop.
MR. CIRESI: Objection, improper use of deposition.
THE COURT: Sustained.
BY MR. BERNICK:
Q. If we talk about the range of difficulty, Dr. Hurt, the range of difficulty in whether -- in quitting smoking, I think you've testified that you had difficulty yourself in quitting?
A. I did.
Q. Okay. And is it true that other researchers have looked at the question of how difficult it is to quit over a long period of time, really for more than 30, 40 years?
A. There have been a lot -- a lot of people that's been done in that area, sure.
Q. Okay. And would it be fair to say that there is a range, some people find it very difficult to quit, some people find it difficult, some people find it easy. Would that be a fair statement?
A. There is a spectrum of nicotine dependence.
Q. Okay.
A. That's they way you speak of it. It's a spectrum that looks basically like a ski slope. The higher you go up the ski slope, the more difficult it is. And therefore we try to match the interventions for the individual based on those levels of dependence.
Q. Okay. Would you agree with the statement that for many people it's easy, for most it's somewhere in between easy and difficult, and only for a minority it is really difficult?
A. I'd have to see what you're reading from.
Q. I'm just asking whether you would agree with that assessment.
A. Well it's probably something that's been written by someone. If it's an article or if you'd like me to look at the whole thing, the context in which that statement was made, I'd be glad to look at it.
Q. It's a very simple question, doctor. I'm asking just whether you agree with that basic proposition or not.
MR. CIRESI: Objection, asked and answered, Your Honor.
THE COURT: Counsel, do you have a article that you'd like him to see?
MR. BERNICK: Sure.
THE COURT: Why don't you show it to him.
MR. BERNICK: I'd be more than happy to do it, but I'm just asking the witness for a very basic proposition. I don't have to show him.
THE COURT: Show him the article, please. BY MR. BERNICK:
Q. Take a look at volume one, tab 34.
MR. CIRESI: May we have the exhibit number?
MR. BERNICK: Exhibit number is GK299.
A. Thirty-four?
Q. I'm sorry?
A. Thirty-four, is that what you said?
Q. Tab 34.
A. Yeah.
Q. That's the Horn monograph?
A. Yes.
Q. Okay.
A. A NIDA monograph from January of 1979.
Q. A NIDA, N-I-D-A?
A. National Institute of Drug Abuse.
Q. Okay. Can you tell us what the National Institute of Drug Abuse is?
A. It's a branch of the National Institutes of Health that has to do with drug abuse. There are several other branches.
Q. Okay. And has the National --
Has NIDA been involved in smoking-dependence issues for a very long time?
A. They -- they've done some work, less some years than others. But they've been involved with it, sure.
Q. And in fact some of the people that we -- the jury has already heard about this this case, Dr. Henningfield, for example, used to be chief of the Biology of Dependence and Abuse Potential Assessment Laboratory at the Addiction Research Center there; correct?
A. That's correct.
Q. And a number of people who have been heavily involved and are authoritative in the field of nicotine dependence and nicotine addiction have written for, spoken at, and worked at NIDA; correct?
A. They have.
Q. Okay. And Dr. Horn in particular has got a monograph that's been published here in connection with NIDA proceedings in 1979?
A. That's right.
Q. Is it true that a wide variety of researchers on smoking-related issues appeared and gave papers at the NIDA conference in 1979?
A. I don't know which conference this was. There are a lot of conferences.
Q. Okay. Dr. Horn himself is a person that's been cited in several Surgeon General reports. He's looked at smoking behavior for 30 or 40 years; correct?
A. That is correct.
Q. He's a recognized authority in the field of smoking behavior?
A. Uh-huh.
Q. I'm sorry?
A. Yes.
Yes.
Q. Okay. And are NIDA proceedings and publications publications that have recognized authority as reliable sources within your field?
A. Yes.
Q. Okay. We --
And is this a part of the NIDA proceeding in 1979?
A. I don't know what it is. It says cigarette smoking is a dependence process, got an editor, NIDA, research monograph number 23, January 1979. If I've seen this before, it's been so long ago I can't remember what it is. I mean it's a one chapter out of -- I'm not sure what it came from.
Q. But you see that it's actually issued by the National Institute on Drug Abuse, NIDA?
A. Yeah, Division of Research, Fisher's Lane. Yeah, that's what it says at the bottom. So I assume that's the title page of the -- of the whole report.
But I don't have the whole report, I just have the one chapter. So if it's a conference, it could be a conference. A lot of -- a lot of monographs come out of conferences.
Q. Take a look.
(Document handed to the witness.)
Q. That's the whole document.
MR. CIRESI: Do you have another copy of the whole document?
MR. BERNICK: We're not going to offer the whole document. Just this one chapter.
A. So it was a meeting -- it was a meeting on June 19, 1978. So you're right, this came from a meeting.
MR. BERNICK: We would offer it, Your Honor, learned treatise.
MR. CIRESI: The entire document?
MR. BERNICK: No, just -- just this Exhibit GK299.
MR. CIRESI: We object, it's incomplete.
THE COURT: I would be concerned about just parts of a learned treatise unless he's reviewed it.
MR. BERNICK: The whole thing is a series of papers, Your Honor. We -- we would offer -- we would be prepared to offer the whole thing.
THE COURT: I understand what it is, counsel.
MR. BERNICK: I'm sorry?
THE COURT: I understand what it is, but you're putting this in through a witness who's not even read what you're trying to establish as a learned treatise. It's difficult unless he has a chance to look through it.
MR. BERNICK: Well he can flip through the table if he wants.
THE COURT: Well he's entitled to the read it, not to flip through, if you want to introduce it through this witness. Okay?
MR. BERNICK: All I want to introduce through this witness, Your Honor, is the chapter.
THE COURT: I'm fully aware of what you want to introduce, counsel.
MR. BERNICK: All right.
THE COURT: Okay. But you're introducing a portion of a large transcript, and he has not had the opportunity to read it.
MR. BERNICK: Well I think we've already established that he's familiar with NIDA proceedings, and I established that we're -- that we're -- we're talking about a NIDA proceeding, this is part of a NIDA proceeding. The only purpose of tendering the larger document is for him to confirm that this is part of the NIDA proceeding, and I believe that that lays an appropriate foundation under the rule.
THE COURT: Well --
MR. CIRESI: We object, Your Honor, it's an incomplete document. In order to know whether it is out of context, in context, reliable or not, a witness would have to review the entire document, --
THE COURT: All right.
MR. CIRESI: -- which he has not done, for which I object.
THE COURT: Why don't we take a short recess, and if you're able to review the article in context with the entire proceedings and are satisfied that it's not taken out of context, then we'll allow it. Okay?
Take a short recess.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. BERNICK: Thank you. BY MR. BERNICK:
Q. Dr. Hurt, have you had the opportunity to take a look at the -- the exhibit itself, GK299, and at least familiarize yourself generally with the -- with the proceeding from which it was taken?
A. I have.
Q. Okay. And do you see that there's a foreward to the proceeding by Dr. Krasnegor -- or an introduction I think it's called?
A. Correct.
Q. And if you go down, I think it's the bottom of the second paragraph, he talks about the purpose of the -- of releasing this collection of papers. Do you see that purpose with regard to providing an overview to the scientific community?
A. It's the foreward?
Q. I'm sorry, it's called the introduction.
MR. CIRESI: Your Honor, we're going to object to reading from an exhibit that is not in evidence.
MR. BERNICK: I'm not reading from the exhibit, Your Honor, I'm trying to establish what the exhibit is.
THE COURT: All right. You may answer that.
A. I'm having a little trouble finding it. Okay, here it is, introduction.
Q. If you go down a couple paragraphs, you'll see where he talks about the purpose of putting together this collection of materials.
A. Well I don't see --
I'm looking for the word "purpose." Give me a clue, because I'm having trouble --
In the second paragraph it says "Despite this linkage, relatively little scientific research has been conducted...."
Q. If you come down, he has a statement of providing an overview to the scientific community. Do you see that on that page?
A. Which paragraph?
Q. May I approach the witness?
I'm sorry. Sentence that begins --
A. Okay. Yeah, I see that.
Q. And does that state the purpose of assembling the volume?
A. Yes. Says this --
Q. No. Does it state the purpose? Counsel doesn't want --
MR. CIRESI: Well --
Q. See where it states the purpose?
MR. CIRESI: Your Honor, I'm going to object to the inappropriate comments of counsel of what I don't want. This is not an exhibit that has been designated, so we don't have a copy, and my objection is that it's not in evidence so it should not be read from.
THE COURT: I'll allow him to answer the question.
A. I'm still trying to find the word "purpose." I can tell you what that sentence says, but I have scanned it three times and there's not "purpose" written in there.
Q. In your own view, does it set forth the author's statement of why the volume has been assembled for purposes of being disseminated?
A. I can read what it says. I mean it's --
This volume, which includes papers presented at this symposium, is designed to provide an overview for the scientific community on the smoking habit and an agenda to guide future research in this area. That's what it says.
Q. Okay. And -- and -- and is --
Would that be a fair characterization of the volume that's been put together as you have been able to see the table of contents and the general scope; that is, was --
A. Yeah, this -- this is a monograph, and just so everybody understands what a monograph is, a monograph --
Q. Excuse me. I'm sorry, I didn't -- I don't think I had finished my question.
Does that statement that you read from, is that consistent with your view based upon the reading that you've been able to do? And I understand you have just been able to flip through it. Does that statement comport with your view about the overall purpose of this volume of papers?
A. That's what I was trying to explain.
Q. Okay. Go ahead, I'm sorry.
A. So a monograph is a collection of papers, a conference where people speak at a conference, and they record the -- record those proceedings basically, and so this person -- or the people that submitted these papers to this conference, after they made their speech, then those papers become part of a monograph. So it's not a peer-reviewed process in that it doesn't go out for other people to look at prior to the time that it's published.
NIDA is a good place, but this is not a peer- reviewed piece of work in that sense, and the articles here are basically the opinions of people, and they may or may not be based on all the available science. That's what I'm saying.
Q. Okay. But I'd like a answer to my question.
As you looked at the volume, was it consistent with the purpose that is described by Dr. Krasnegor; that is, to provide an overview to the scientific community about the current state of science in the area?
A. I think it misses a lot of -- lot of areas, but I mean it -- it provides information that could be used by the community to understand different individuals' opinion about this, that, or the other, and some science. Lot of the reports in here are basically a speech, and specifically the one that you're talking about is this person's personal experiences as well as -- as other things that he has thought about. Even mentions things like his own biases, his own prejudices in -- in writing. So this is not something that I would rely on for my testimony. It tells me where Dr. Horn was in 1979, but I would not rely on something like this for what I do on a day-to-day basis. Not at all.
Q. Okay. Well it talks about where Dr. Horn was in 1979; right?
A. That's -- that's correct.
Q. And you've talked about where you are here today in part based upon your own personal experiences as a smoker; correct?
A. Correct.
Q. You feel that your own personal experiences as a smoker -- as a smoker are germane and indeed very much a part of your opinions as an expert; correct?
A. They are part of who I am. I can't help that.
Q. Okay. And do you recognize, as you have characterized what Dr. Horn has said as being his own personal views in 1979, there's an important part of your own testimony before this court that reflects your own personal perspective based upon your own experiences; correct?
MR. CIRESI: Your Honor, I'm going to object to this as being irrelevant. There's no foundation for the document. Dr. Horn is not here to be cross-examined.
THE COURT: The objection is sustained.
MR. BERNICK: The objection to the question?
THE COURT: To the question is sustained.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. With regard to the particular chapter that pertains to Dr. Horn, if you take a look at the footnote, do you see the footnote to the chapter?
MR. CIRESI: Your Honor, I'm going to object to the use of the document. There's no foundation for it under 803(18).
MR. BERNICK: Your Honor, I'm attempting to lay the foundation. There's a footnote that pertains -- it says this actually was taken from a published article. That's what I'm directing his attention to.
MR. CIRESI: If I may, Your Honor, the witness has already stated he does not consider it reliable. There's no foundation under 803(18).
THE COURT: Okay. I think you should ask the witness the question and determine its reliability, and then I'll rule on it.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. If you take a look at the footnote to the chapter -- see the footnote?
A. Which page of the volume?
Q. It's on page 28.
A. Okay.
Q. Okay. Do you see that -- that in fact the -- the papers that have been presented were taken with minor changes from an article that Dr. Horn published?
A. Yeah, the International Journal of Health Education.
Q. Okay. And is that a peer-reviewed publication?
A. I couldn't tell you. I don't -- that's not on my reading list. International Journal of Health Education is not something I've ever seen.
Q. So you don't know one way or another whether the text of the article -- the text of the monograph that appears here is taken from a peer-reviewed publication or not.
A. Correct. I mean it says it was put into this other journal, but it's a journal that I don't -- I don't have any knowledge of.
Q. Would it be fair to say, Dr. Hurt, that the views that you expressed on the degree of difficulty in quitting are not necessarily the views of other people who have practiced in the same field for many, many years?
A. If you give me an example of an individual, I might -- can -- can tell you.
Q. Dr. Horn.
A. There are differences of opinion, sure.
Q. Dr. Horn is -- would be a good example; correct?
A. I don't think Dr. Horn ever really treated patients. He was an epidemiologist whose main fame is in Hammond and Horn where the connection between smoking and lung cancer and other diseases was made. I don't know that he was ever a patient-seeing person. He has a Ph.D., and I don't -- I don't know exactly if he ever had a clinic per se.
Q. In fact, Dr. Horn is -- is the recite -- Dr. Horn --
Are you familiar with his publications on modifying cigarettes, smoking habits in high school students?
A. I have seen reference to those. I couldn't tell you if I've actually reviewed those articles. Again, we're talking about things that were published a long time ago, and we've actually learned a lot about how to treat high school students since then, and we -- you know, we're doing it even as we speak.
Q. Dr. Horn has been cited for those articles on smoking behavior in five different Surgeon General's reports; hasn't he?
A. Could be. I don't --
You know, the references in the Surgeon General's reports are long because the reports are long. A lot of references are put in the Surgeon General's reports. So it could be, yeah, sure.
Q. I'm sorry, you said that the Surgeon General's reports are wrong?
A. Long.
Q. Long. Okay.
A. Long.
Q. But --
A. Lots of pages, lots of references. The people that write the chapters of Surgeon General's reports go through the literature that's relevant to their particular chapter. We intend when we do that to be all-inclusive or more inclusive. So just because someone is cited in a Surgeon General's report doesn't mean it was good or bad, it was just cited. It's like any other article.
Q. I thought you told us that Dr. Horn is a person, before we took the break, who had been in this field looking at smoking behavior and was respected for his views because of the period of time that he had been in the field. Isn't that true?
A. No, I didn't say that at all. What your question was is Dr. Horn recognized as a -- as an expert in smoking behavior, and I said yes. I recognize his name. But I don't think he had working knowledge of addiction as we currently think about or even as it was thought about in this series.
Other articles written in here by other people have to do with the addictive process and withdrawal symptoms and so on. This was -- this was a meeting where people came together, were invited by NIDA to make presentations. That's what it was. So I don't -- I don't think you can make any more of it than that.
Q. Let me talk about your own personal experience that you shared with the jury in addition to your views as you shared them with the jury. I take it that you recognize that other people -- you --
I think you said that you quit more than 20 years ago?
A. 1975.
Q. Okay.
A. November 2nd.
Q. And you quit more than 20 years ago without any kind of nicotine supplementation?
A. Correct.
Q. And I -- I think you said and your own words were that it was the most difficult thing that you did in your life.
A. I said it was the most difficult I've ever done, that's correct.
Q. Okay. And that hasn't influenced your views as an expert, your own personal experience?
A. I think it allows me to have empathy for people who are struggling with this. Because it's not a simple deal at all, it's very difficult. It allows me to understand. But does that mean that everyone who treats people who are smokers has to be a recovering smoker or former smoker? No. People can understand that without -- without having been a former smoker. But it allows me the ability to understand this in a way that's personal. I think that's okay.
Q. Dr. Horn was a former smoker, too; wasn't he?
A. Well he actually did the same thing I did, he switched to a pipe. I don't know if he continued smoking the pipe. I finally stopped smoking the pipe, but I don't know if he did or not because it doesn't say in his introduction.
Q. And --
A. I imagine that's something we tell our patients, don't do that, don't switch to a pipe or cigar because you're smoking those just like you did your cigarettes.
MR. BERNICK: Move to strike as non-responsive, Your Honor.
THE COURT: I'll let it stand. BY MR. BERNICK:
Q. Dr. Hurt, certainly you recognize that if other people came in who had quit smoking and took the stand just like yourself and talked about their own experience in smoking, they could be reporting an experience that was very different from your own. Would you acknowledge that?
A. Sure. I mean people who stop smoking stop smoking for difference reasons. Sure. People are difference, sure.
Q. And with a wide range of degrees of difficulty in the process?
A. There is -- there is that. I think I've already said that there is a spectrum of this problem. Some people can stop very easily and they have no difficulty. And I think that's great.
Q. And in fact, have you taken the time --
This is a case that deals with cost recovery for Medicaid recipients. Are you familiar with the testimony that has been offered in this case by individual Medicaid recipients, smokers, and what they have said about whether they quit on their own and the degree of difficulty? Have you familiarized yourself with that part of the record?
A. Have I?
Q. Yes.
A. No, I have not.
Q. So you have no idea whether your own experience as you've reported to this jury is the same as what the record in this case says about the degree of difficulty that has been seen by Medicaid recipients when it comes to quitting; would that be fair?
A. Well all I can tell you is that we see patients who are from all walks of life, they're Medicaid, Medicare, people from all different walks of life that we see as patients. And actually we try not to identify what their potential reimbursement source is when we see them as patients because that's not really fair. We try to treat the patients for what they are, what their problems is, without all the other stuff. We let the business office focus on that sort of stuff and we try to take care of the patients. And the variety of patients we have seen over the years is large, we've seen over 15,000 patients, so we've seen every size, shape and form. But there are still a few surprises. Every week there is another surprise, something we haven't thought about before.
Q. But as you sit here today, you just don't know what the experience has been of the people who have testified in this case when it comes to quitting; do you?
A. No, I don't have any knowledge of who's testified or -- or what they look like or anything else.
Q. I want to take you back a little bit to the history of quitting.
A. Are you through with this?
Q. Yes, I am. Thank you.
People have thought for a very, very long time in the popular literature, the popular press, about the fact that once you start, it's hard to quit smoking; isn't that true?
A. I think that's been said, but -- in the popular press. We certainly say it in our program. We try to teach our children that. We try to teach them that the best way to stop smoking is never to start. Correct.
Q. And people have known ever since people started using tobacco and tried to stop using tobacco, people have known -- very common-sense proposition -- once you start, it's hard to quit. Would that be correct?
A. I don't think you can generalize that to just all forms of tobacco, because a cigarette is the most efficient delivery form of nicotine that exists, it's a delivery device for nicotine that achieves levels that are higher than any other form of tobacco. So you can't just lump tobacco together with cigarettes.
Q. Take either one. Isn't it a fact that it's been said for literally centuries, when it comes -- even before cigarettes: Once you start using tobacco, it's hard to stop?
A. It could be. I guess you're -- you probably got something in front of you. If you want me to refer to that, I'd be glad to do that.
Q. Well you gave us a history lesson at the beginning of your direct examination. Is an important part of the history lesson that it's been known literally for centuries that once you start using tobacco, it's hard to stop using tobacco?
A. Once you become dependent upon it, it is difficult, correct.
Q. Okay. And that's been published and known and people have known that as a matter of basic practical knowledge for hundreds and hundreds of years; isn't that right?
A. Well again, it goes back to what we talked about earlier, is the knowledge that's out there, does it reach the consumer? Do they really know for sure?
The knowledge may be published in -- in things, but they -- the people who are on the receiving end may or may not have received that information, one; and two, if they have become dependent, the denial and rationalization is there that does not allow them to internalize that information.
Q. The question I asked you was of the practical wisdom. That's not the scientific publications and the like. The practical wisdom, if you go back into the history texts, as you have talked about the history of tobacco, how it came to be used, how it came over here to the United States, wouldn't we find in those same texts that for hundreds of years it's been practical, common knowledge that once you start using tobacco, it's hard to stop? Isn't that a fact?
A. It has been stated in that way. But again, you're talking about, specifically to deal with cigarettes, the people that begin to use cigarettes --
MR. BERNICK: Your Honor, this is -- this is not responsive. I'm not asking about cigarettes. I said hundreds of years before cigarettes. I'm talking about the history.
THE COURT: Okay. You understand the question?
THE WITNESS: Well I think so.
A. You know, the -- the -- I guess the -- the addictive nature of tobacco has been hinted at for a long time, but remember, the '88 Surgeon General's report was the first Surgeon General's report to talk about nicotine addiction. So difficulty -- difficulty starting once you -- stopping once you start may have been talked about, but it really wasn't really brought to that level of attention until the last part of this century, I mean. So --
Q. I'm not talking about the Surgeon General's report.
A. Pardon?
Q. I'm talking about what the guy in the street says about quitting using tobacco. Long before cigarettes, hundreds of years before cigarettes. You know, I'll put the question one more time.
A. I wasn't here a hundred years ago. I didn't do a survey of people on the street hundreds of years ago. I think if you have something that says that, I'd be glad to look at it.
Q. When you did your history lesson, did you go back and take a look at what people on the street, what has been said as a matter of common knowledge for hundreds of years about the difficulty of quitting? Did you do that research when you put your history together?
A. There are -- there are statements in the contemporary literature even, and even in some of the literature earlier this century that speak -- say that. Now whether or not that was based on scientific surveys of people on the street -- those things kind of get said. And there are some articles earlier this century that -- that say those sorts of things.
Q. Okay. We can go back and see all kinds of articles --
A. Correct.
Q. -- as a matter of fact over time; correct? They go back to the first part of the 1600s; don't they?
A. On what?
Q. Once you start using tobacco, it's hard to stop. Can't we find references to tobacco's addictive? Can we find those references in the public literature and the newspaper articles and press statements going back for hundreds of years?
MR. CIRESI: Objection, Your Honor, with respect to the compound nature of the question.
THE COURT: It is a compound question. BY MR. BERNICK:
Q. Well let me -- let me take you to Mark Twain. Wasn't it Mark Twain that said to stop smoking was the easiest thing he ever did; he hastened to add that he ought to know because he had done it a thousand times?
A. I think that's a quote from Mark Twain, sure.
Q. It's not only a quote from Mark Twain, it's also a quote from Mark Twain that appears in the -- in articles that have been published by people at the Mayo Clinic; correct?
A. I don't know. You obviously have it in front of you, so --
Q. Are you familiar with what the Mayo Clinic has said over time in its own proceedings about the difficulty of quitting smoking?
A. There have been articles, sure.
Q. Let's put the Mayo Clinic on the map here. Isn't it true that -- let's just go back to the 1940s -- that in the early 1940s the Mayo Clinic was publishing papers on the drug properties of nicotine in cigarette smoke?
A. There have been several articles written, but I -- you know, the Mayo Clinic doesn't write articles, people at the Mayo Clinic write articles. So if you've got a reference, I'd be glad to look at it.
Q. Well do you know an article by Grace Roth --
Does the name Grace Roth ring a bell?
A. It does, but I couldn't put it in context.
Q. Are you familiar with Grace Roth's article in 1944 published in the Journal of the American Medical Association on the effects of smoking cigarettes, and particularly the effects of nicotine?
A. I may have seen that, but I couldn't -- I couldn't tell you the content of the article.
Q. Could you take a look at GK69, which is at volume two, tab 48a.
A. Which volume is it?
Q. I'm sorry, volume two, tab 48a.
MR. CIRESI: That's not designated, counsel.
MR. BERNICK: I believe it was.
MR. CIRESI: Well it wasn't. GK69 has not been designated.
MR. BERNICK: Oh, I'm sorry, 200069. Sorry.
MR. CIRESI: Thank you. BY MR. BERNICK:
Q. Do you see that, Dr. Hurt, is an article that was published in the Journal of the American Medical Association by Grace Roth in 1944?
A. Yes, it is.
Q. Do you see that at that time she was with the Mayo Clinic?
A. It says from the Section of Clinical Physiology, Mayo Clinic, Dr. Roth. Yes.
Q. Okay.
MR. BERNICK: We would offer it, Your Honor, on two grounds, one, it's a learned treatise, and the other, it's an ancient document. It is also -- we're offering it for the fact of what was being said within the state of Minnesota at that time.
MR. CIRESI: It can only be offered under a learned treatise. Foundation has to be laid for that, Your Honor.
THE COURT: Have you read the article, doctor?
THE WITNESS: Well if I have, it's been a long -- I don't -- I don't recall reading it, but I -- I could have, but it's been a long time.
Q. Did you make any --
When you came in to talk about nicotine and addiction, did you make any effort to find out what research had been published by the Mayo Clinic on that subject going back over the years?
A. I made an effort to look at a lot of things. This one may or may not have been in the stack that I did. I honestly cannot recall.
If you can imagine the number of articles that are produced at Mayo Clinic on an annual basis, there are a large number and they're not necessarily catalogued. So this one, I -- if I've seen it, it's been a long time.
Q. Take a look.
A. Okay.
I've got the general gist of what they did, yes.
Q. Okay. This was in fact an article published on the effects of nicotine; correct?
A. It was the effect of smoking.
Q. And the intravenous administration of nicotine.
A. I guess I haven't gotten to that part yet.
Q. It's right in the title.
A. Okay. Yeah.
Q. Okay? And -- and do you see that on the second page --
Well let me just ask: Was it published in a peer-review journal; correct?
A. It is.
Q. And published by a person who was a scientist then at the Mayo Clinic; correct?
A. It was a person at the Mayo Clinic, yes.
MR. BERNICK: Okay. Your Honor, we would offer this again --
Q. The date of the article is 1944?
A. July 15, 1944.
MR. BERNICK: Again, we would offer this on all three grounds, as a learned treatise, it establishes the fact of what was being said within the state of Minnesota at the time concluded by the Mayo Clinic, and it's also an ancient document, more than 20 years old.
MR. CIRESI: It's irrelevant under an ancient document. It's a medical treatise. If the foundation is laid, it can be introduced under 803(18). And the last statement is no exception to the hearsay rule.
THE COURT: It will be received under 803. BY MR. BERNICK:
Q. If you take a look at the -- at page 762 --
Well first of all, let's take a look at the title page.
Q. Journal of the American Medical Association, July 1944 -- make everybody dizzy here for a second -- "The Effect of Smoking Cigarettes and the Intravenous Administration of Nicotine," and you see Grace Roth, Ph.D., is the lead author; correct?
A. Correct.
Q. And as you've indicated down here, it says from the section on Clinical Physiology, Mayo Clinic, Dr. Roth; right?
A. Correct.
Q. And you see that Dr. Roth is doing the study, and as part of the study she goes back and takes a look at the literature on nicotine, and she recites Johnston.
Now Johnston was the same author of the same article that we've already talked to the jury about. He was the author in 1942 who said smoking is basically the self-administration of nicotine and smokers are addicts; correct? Remember that article?
A. I remember that article, yeah.
Q. Okay. And she's picking up on that same article and saying "Johnston in England added to the nicotine hypothesis by assuming that the smoking of tobacco is essentially a means of administering nicotine. He gave nicotine both hypodermically and intravenously and obtained a vasoconstrictor effect similar to that of smoking tobacco." Do you see that?
A. Uh-huh.
Q. And again, that's the article that talks about smokers being addicts; true?
A. Smokers being addicts, I think that's what he said, but I'd have to go back and look.
Q. Well that's Exhibit 226, which is already in evidence -- that's GK226 already in evidence. That's the one that says, just right here, --
A. Right.
Q. -- "Smokers show the same attitude to tobacco as addicts to their drug, and their judgment is therefore biased giving an opinion of its effect on them." That's denial?
A. No, that's not denial.
Q. That's not denial.
A. No.
Q. "Yet abstinence generally followed by improved health." Do you see that? That's Johnston; right?
A. That's Johnston.
Q. Okay. And she's picking up Johnston and doing her own research, right, in 1940?
A. Right.
Q. In fact, during the same period of time, is it also true that even outside the medical literature --
Well let's pick up one other Mayo Clinic study. The Mayo Clinic didn't just look at this in 1940, the Mayo Clinic continued to focus on smoking and the difficulty of quitting in succeeding years; did it not?
A. Again, there are different articles -- authors at the Mayo Clinic, so if you've got one like this one, we can talk about it.
Q. Well in fact you specifically cite in your report a publication on the psycological aspects of smoking by a Dr. Barry of Mayo Clinic in 1960; do you not?
A. Dr. Maury Barry, yes.
Q. Okay. And he published a paper that you cite. Take a look at volume two, tab 48.
A. Before we do this, just for my own clarification, the Johnston article, when was that published?
Q. 1942, Dr. Hurt.
A. Okay. Thank you.
So what's the other one?
Q. GK200001, it's volume two, tab 48.
A. Thank you.
Q. Is that the --
That's the Barry study?
A. Yes. Dr. Barry was a psychiatrist.
Q. And then -- I'm sorry. Is that a paper that you cited and relied on in your report?
A. It was part of what I reviewed and it's important for a lot of different reasons, personal importance. He died of lung cancer.
Q. Did you cite it in your report, Dr. Hurt?
A. I did, yes.
MR. BERNICK: Okay, we'll offer it, Your Honor.
MR. CIRESI: No objection under 803(18), Your Honor.
THE COURT: Court will receive GK20001. BY MR. BERNICK:
Q. This was published in the Proceedings of the Mayo -- of the staff meetings of the Mayo Clinic; was it not?
A. Yes, it was.
Q. 1960?
A. Correct.
Q. And Dr. Barry talks about the psychologic aspects of smoking; does he not?
A. Yes, he does.
Q. And in particular he says "The heavy smoker continues his habit because of two factors: A pharmacodynamic or physiologic addiction with which I shall deal very briefly, and a complex of unconscious psychodynamic factors upon which I shall speculate at slightly greater length.
"Clinical experimental data indicate that a definite physiologic addiction to nicotine exists. Johnston gave nicotine hypodermically to volunteers who were both smokers and non-smokers."
So again, Dr. Johnston's 1942 paper and his 1942 theory that people are addicted and they smoke for nicotine, Johnston's paper comes up again, now, in 1960 in Dr. Barry's publication; does it not?
A. Yes, it's cited again. But again, that's --
Q. That's a very --
A. -- one article.
Q. I see. I just asked you whether he cited it in the paper. Did he not?
MR. CIRESI: Excuse me, can the witness finish, Your Honor?
THE COURT: Allow the witness to finish his answer, counsel.
A. The fact that one article is cited in two papers means that one article was present in the literature that they both made reference to. And that's part of the point, is that there weren't a lot of references to addiction.
Q. Well we'll -- we'll see now. Let's talk about what the state was doing back --
I mean there's no issue, is there, Dr. Hurt, but that during this period of time in the 1940s, 1950s, we'll see more in the 1960s, the scientific literature contained references, people were writing down the theories saying smokers smoke for nicotine, it's addictive. That was no secret to the scientific community. Was it?
Just that fact, smokers smoke for nicotine, it's addictive, was no secret to the scientific community during this period of time; isn't that true?
A. To some within the scientific community that were studying it. But, more importantly, the consumers never heard it.
MR. BERNICK: Your Honor --
A. In fact, your companies deny and they still deny today that it's addicting.
MR. BERNICK: Your Honor, I move to strike the statement by the witness.
THE COURT: Well the answer will stand. BY MR. BERNICK:
Q. Let's talk about what the schools within the state of Minnesota were doing during this same period of time.
Have you taken a look at what the state was teaching in its own textbooks in 1944 and in the 1950s, teaching in its own textbooks about nicotine and addiction? Have you looked at that?
MR. CIRESI: Objection, relevance.
THE COURT: No, you may answer if you know.
A. I did not.
Q. I want you to take a look at tab -- or volume one, tab four. That's Exhibit BYB249.
MR. CIRESI: May I have that again, please?
MR. BERNICK: I'm sorry. It's BYB000249.
A. Okay.
Q. Are you with me there?
A. I am.
Q. Good.
A. "Individual and Community Health: Efficiency for Living;" is it that.
Q. That's correct. And down at the bottom you see "State of Minnesota, Department of Education, September 1944?"
A. Uh-huh.
MR. BERNICK: Your Honor, we would offer this document. It is a statement by the plaintiff in the case through the Department of Education, produced by the plaintiff in this case, and it's further an ancient document.
MR. CIRESI: No objection on those grounds. But there's no foundation for use of this, Your Honor, and it's outside the scope of this witness.
THE COURT: Okay. It will be allowed into evidence, BYB000249. BY MR. BERNICK:
Q. Do you see, Dr. Hurt, where this is described as being -- well let's take a look at the title page which you just read, this is "Individual and Community Health: Efficiency for Living," and we were just reading from down at the bottom where it says "State of Minnesota, Department of Education, September 1944;" is that right?
A. Yes.
Q. Okay. And the first page at the top says "A course of study in health education for the senior high school." Is that right?
A. That's what it says.
Q. Okay. And if you want to flip to page 80 -- do you have 80 down at the bottom, eight zero?
A. Well I've got a table of contents that goes from page two to page 119, and I've got one page that says 79 and 80. Is that it?
Q. Yes.
MR. CIRESI: Your Honor, I didn't realize he didn't have the full exhibit. We're going to object to the incompleteness of the document.
THE COURT: Is that incomplete, counsel?
MR. BERNICK: Let me check on that. Do we have the complete exhibit?
Your Honor, all that we have to display to the witness is this excerpt. It was a document produced by the state, and we will supply all of the other pages and make it part of that same exhibit. That's -- it's an error on our part.
MR. CIRESI: Well the fact that it was supplied by the state -- there's millions of documents in this litigation. We need the entire exhibit so that we see it's being used in context.
THE COURT: Does the state have a copy of the entire exhibit?
MR. CIRESI: Well not here, Your Honor.
MR. BERNICK: We can -- we'll just substitute --
THE COURT: Could we continue this until we get a copy of the entire exhibit?
MR. BERNICK: Well I guess it's pretty important --
I'll tell you what, we can supply the full copy of the exhibit after the noon hour, and I can pursue a couple questions with the witness without getting into the text of the document, and we'll pick it up at that time.
THE COURT: All right.
MR. BERNICK: I apologize for the omission. We just have what we were going to display here. BY MR. BERNICK:
Q. Dr. Hurt, have you gone back -- when you made the statement that you made about what the consumer knew back in the '40s and in the '50s, have you gone back to see what it is that the state of Minnesota was telling students through textbooks and through course work, telling students during this period of time about nicotine addiction? Have you gone ahead and done that?
A. No, I have not.
Q. Have you taken a look at popular press publications during the '40s, '50s and '60s to see what the popular press was saying to the people on the street in the state of Minnesota about nicotine and addiction? Have you done that?
A. I've seen some reports, but I haven't done a systematic review of all the newspaper articles and all of those things. No, I have not done that.
Q. When you formed your history about tobacco use in the United States, did you go back and take a look to see what had been said by the states when cigarettes were prohibited for a period of time, including in Minnesota in the early 1900s, did you go back and see what was being said to the people on the street about addiction at that time?
A. I recall some of those references, but I -- I did not go back and look at all of them, no.
Q. Okay. Were you familiar with the fact that when cigarettes were prohibited in the state of Minnesota, prohibited to everybody, everybody on the -- nobody on the street could have them, that the articles were coming out and saying people are going to get their cigarettes anyhow by going across state lines because they're addicted? Did you familiarize yourself with those publications?
MR. CIRESI: Objection. Objection to the form of the question, Your Honor.
THE COURT: Sustained.
MR. CIRESI: Counsel is -- BY MR. BERNICK:
Q. You've told us a lot about what people -- what was not in the public scientific literature but what was in the public domain. Did you go back and take a look to what the newspaper articles were saying about addiction in the early part of this century right here in Minnesota?
MR. CIRESI: Objection, asked and answered.
THE COURT: Do you understand that question?
THE WITNESS: Uh-huh.
THE COURT: You may answer.
A. No, I -- I recall some, but I did not go back and take a look at all of the newspaper articles back at the first part of the century. No, I didn't.
Q. Are you here to tell this jury that people -- well let me put it this way: If we go back and -- we go forward a little bit, now, into the early 1960s, isn't it true that further publications came out in the early 1960s about nicotine and addiction?
A. That could be. I'm sure you have something there. If you'll show it to me, I can tell you if I've seen it before.
Q. Okay. Well let me ask you this: People here in the United States have heard about the Surgeon General's reports. We've had reference to them in this trial. Isn't it a fact that in England there was a report that came out in 1962 by the Royal College of Physicians?
A. I've read that report. I've seen it. I've read -- read parts of it, yes.
Q. Yes. And that report came out in 1962; did it not?
A. I think there were more than one report from the Royal College of Physicians, but there was -- in '62 there was one.
Q. Right. And in fact it was part that report in 1962 that prompted the formation of the advisory committee that ultimately wrote the 1964 Surgeon General's report in this country; correct?
A. I -- it could have. I'd have to go back and look at the beginning of the '64 report to see what the origins -- all the origins --
There were a lot of origins to the '64 report. If that was one of them -- it could have been.
Q. Was it --
Isn't it true that when the Royal College of Physicians came out with their report in 1962, that they referred to smoking as addictive or as an addictive habit or as a habit, all three?
A. I mean I'd have to go back and refresh my memory as to the Royal College of Physicians report. They could have done one or all of those. I -- you must have it in front of you or else we wouldn't be talking about it like this, so if you want to talk about it, let me look at it and I'll tell you what I think of it.
Q. Okay. Well let me talk about one that I know you referred to in your report and ask you a couple questions about it, and that is research funded by the tobacco industry.
Isn't it true that there was research -- published research funded by the tobacco industry right here in 1963 which said cigarette smoking can be addictive?
MR. CIRESI: Your Honor, I'm going to object to the form of the question. Counsel's testifying.
THE COURT: You may answer that.
A. Well I mean it could have. I cannot remember every article. You give me a citation of 1963 funded by the tobacco companies and it says it's addictive. I -- I don't have that kind of recall that I can just --
So if you've got it in front of you, why don't you just let me look at it with you? Then we can talk about it.
Q. I will. Remember the Knapp report? The only reason I say that is it's referred to in your own report. Does that ring a bell?
A. I understand.
Q. Okay. Why don't we take a look at the Knapp study, volume one, tab 6-A, that's GE828.
A. Okay.
Yes, this is the one I reviewed for my report.
Q. I'm sorry?
A. This is the one I reviewed for my report.
Q. It is or it is not? I couldn't hear.
A. It is.
Q. It is.
A. Uh-huh.
Q. Okay. As published in the American Journal of Psychiatry?
A. Correct.
Q. Okay. And that's a peer-reviewed journal?
A. That is.
Q. Okay. And again, you referred to it in your report.
MR. BERNICK: We would offer this into evidence both as a learned treatise and also as an ancient document. It was published in 1963.
MR. CIRESI: As an ancient document it's inappropriate. Under 803(18) we have no objection.
THE COURT: It will be received under 803. BY MR. BERNICK:
Q. American Journal of Psychiatry, January 1963; right?
A. That's correct, yes.
Q. Okay.
A. Right.
Q. Do you see that the title of it is the "Addictive Aspects in Heavy Cigarette Smoking" by Peter Knapp?
A. That's correct.
Q. And it says further down here, "Nicotine is an active agent, but not necessarily the only noxious agent in tobacco; it appears to have certain addictive qualities."
Does the article then go on to talk about different kind of smokers, and then concludes in the summary and conclusions section, "Heavy cigarette smokers thus appear to be true addicts, showing not only social habituation but mild physiologic withdrawal." Do you see that?
A. I believe I do, but I --
Which page are you on?
Q. That is page --
A. Oh, it's at the very beginning.
Q. -- 971.
A. I have it. Correct.
Q. All right. And not only does it say that, but the -- if you take a look at the references, it turns out that Dr. Knapp, like the people at the Mayo Clinic, are very familiar with the Johnston publication in 1942 dealing with smoking is an addiction, and Dr. Roth from the Mayo Clinic, her publication on tobacco and the effects of smoking.
A. Uh-huh.
Q. And not just one, but two. And Dr. Knapp also is citing work by Dr. Silvette in 1962 in Pharmacological Review.
Again, Dr. Silvette and Dr. Larson over here, those are studies that were funded by -- those were publications that were funded by the tobacco industry; were they not?
A. I think that's correct.
Q. And if we take a look at this particular publication; that is, Dr. Knapp's publication on the addictive aspects of smoking, this particular research was actually sponsored by both the American Cancer Society and by the Tobacco Industry Research Committee; correct?
A. That's what it says. But it's -- it's -- you have the title wrong, it's "Addictive Aspects in Heavy Cigarette Smoking," not just "Cigarette Smoking," so they really focused on heavy smokers as --
In fact, their discussion leads off with "This study dealt with heavy smokers who may well form a special group or at least occupy a special position in relation to smokers." So it's heavy smokers.
Q. My question was: Was this work funded by the American Cancer Society and the Tobacco Industry Research Committee?
A. That's what it says, right.
Q. Would it be fair to say that there were a number of scientists who were focused on the role of nicotine in published form, the role of nicotine and whether it was a habit or an addiction at this time?
A. I don't know what the right number is. There were some that were doing that, yes.
Q. Well it was sufficiently important to the Surgeon General in 1964 to cite -- to specifically address this issue in 1964; correct?
A. There is a section on -- on addiction, yes.
Q. So now at this point --
And the '64 report takes on this issue as an issue; that is, is it a habit or is it an addiction. Right?
A. That was the way it was displayed. They discussed it, and that's part of the report, yes. Just like the report also addresses did it cause lung cancer.
Q. Did it cause lung cancer.
A. And they concluded that it did.
Q. Well that isn't exactly what the report --
Is the Surgeon General's 1964 report in evidence?
MR. BERNICK: All right, we would offer, Your Honor, Exhibit GK3, which is the Surgeon General's report 1964. And I think that we may have an agreement between the parties that, subject to our disclosure requirements with regard to a given witness, that the Surgeon General reports can be admitted into evidence. I don't know if that's correct, Mr. Ciresi.
MR. CIRESI: That is correct, Your Honor.
THE COURT: Okay. Court will receive GK3.
MR. BERNICK: Okay. Do we have the '64 report, the book?
May I approach the witness, Your Honor? BY MR. BERNICK:
Q. I want to show you --
We made a full copy and broke it down by chapters.
A. Okay.
Q. And chapter 13 relates to smoking.
Does chapter 13 of the Surgeon General's report in '64 talk about smoking behavior?
A. Well it's title is "Characterization of the Tobacco Habit and Beneficial Effects of Tobacco." That's 13.
Q. And do you see that at page 350, the Surgeon General report decides to make a distinction between drug addiction and drug habituation?
A. Yes, on the --
Q. Okay.
A. On 30, yes.
Q. And I don't -- I want to just capture a little bit above this. "In the recitation "-- we'll put down here habit and addiction. "In the recitation, the evidence indicates dependence is psychogenic in origin. In medical and scientific terminology the practice should be labeled habituation to distinguish it clearly from addiction, so that the biological effects of tobacco, like coffee and other caffeine-containing beverages, betel morsel chewing and the like, are not comparable to those produced by morphine, alcohol, barbiturates, and many other potent addicting drugs." Do you see that statement?
A. Yes, I do.
Q. Okay. So at this point in time, at least, the Surgeon General is kind of developing through these two terms the ability to group different substances that would today be considered dependence-producing substances, to put them into two different groups at this point in time; correct?
A. I don't think they did that at all. In fact, you have to read the next sentence, "In fact, to make this distinction, the World Health Organization Expert Committee on Drugs Liable to Produce Addiction created the following definitions which are accepted throughout the world," and this is really the key part, "as the basis for control of potentially dangerous drugs."
Q. Fine.
A. So this really is the World Health Organization definition.
Q. Okay, fine. The World Health Organization definition in 1967, correct, the then-current definition.
A. That is the one until later in 1964 that said that nicotine was dependence producing.
Q. We're going to get to it in good, Dr. Hurt.
A. Okay. Yes.
Q. Under habit, the '64 report groups tobacco, coffee or caffeine -- coffee which contains caffeine, and the betel morsel. That's chew --
A. That's the beetle nut.
Q. Oh. Is that right?
A. Uh-huh. And actually it is hallucinogenic.
Q. Right.
A. And I don't think they classify it the same way today.
MR. BERNICK: Your Honor, I move to strike the statement. We're going to get to today in a minute; I'd just like to be able to go through the '64 report.
THE COURT: I'll let it stand.
Q. And over here we've got morphine, alcohol -- alcohol, and barbiturates; right? That's what that paragraph says; right?
A. That's what it says.
Q. Okay. And on the next page, the report sets out definitions or really criteria for distinguishing drug addiction from drug habituation; right?
A. Correct.
Q. And then goes on to say, when it comes to tobacco, that it should be characterized as habituation; right?
A. That's what it says.
Q. But at the same time it goes on to say, "Correctly designating the chronic use of tobacco as habituation rather than addiction carries with it no implication that the habit may be broken easily."
The Surgeon General wanted to take care that that was not the message that was being sent; is that fair?
A. Correct. As long as it is generally accepted, because that's really an important sentence. It says "It is generally accepted among psychiatrists that addiction to potent drugs is based upon serious personality defects from underlying psychologic or psychiatric disorders that may become manifest in other ways as the drug is removed." That may have been the conventional wisdom in 1964, but that isn't the current wisdom today.
MR. BERNICK: Your Honor, I move to strike. If I'm going to be able to conduct cross-examine, I'd like to have answers that are focused at least on the same question that I ask about.
THE COURT: Well it is in the same paragraph, so I believe it's fair. I'll let it stand. BY MR. BERNICK:
Q. There was a whole committee as part of the Surgeon General's committee that was dedicated to writing this chapter; correct?
A. There was a committee, yes.
Q. Okay. And they got their heads together to figure out what they wanted to do. They came out with this as their conclusion at that time; correct?
A. The committee actually was formed by people from different organizations recommending people to be on the committee, so they didn't just kind of get together. People from the American Cancer Society, the Lung Association, the tobacco industry could designate members to the committee. And in addition, each member -- as a suggested member for the committee, each member organization had veto power over any person that might be suggested by someone else. So they didn't just kind of get their heads together; it was a very well-organized and -orchestrated sort of event.
Q. Fine. I'll accept that.
And they came out with their conclusion at that time that said, after all this discussion, we're going to call it in 1964 not an addiction, but a habit; right?
A. That's what they said.
Q. Okay. And that was soon to change, as you've already pointed out. After 1964 the issue of whether -- of what to call smoking, whether to call it an addiction, whether to call it dependence, that issue continued to evolve as time went on after the Surgeon General's report; correct?
A. That's correct.
Q. Indeed, right after the Surgeon General's report, as you've already pointed out, the WHO organization decided to abandon the distinction between habit and addiction and instead talk about dependence; right?
A. And the reasons were --
Q. Did they do that, Dr. Hurt?
A. They did.
Q. Okay. And as time went on, dependence became a term that was used by other organizations as well, including the APA in the Diagnostic and -- the DSM publication; correct?
A. Yes, the Diagnostic and Statistical Manual, that's correct.
Q. Okay. Now you've talked about DSM IV. That was issued in 1990; true?
A. I think that's right. Okay. And there were -- so it's the fourth -- actually it's probably the fifth one.
Q. Right. There was DSM III, there's the DSM IVA and then DSM V?
A. And I and II.
Q. And obviously I and II. And isn't it true that in 1974, is it, in 1976 -- sometime in the 1970s, DSM adopted dependence language and dependence criteria; correct?
A. I can't remember the exact date. That sounds about right.
Q. By 1980 DSM was specifically talking about nicotine dependence.
A. Uh-huh.
Q. Right?
A. Yes. Yes.
Q. Surgeon General comes along in 1988 and says we now want to say that cigarette smoking is addictive. That was the conclusion of that report; right? '88 Surgeon General's report.
A. That nicotine is addictive, yes.
Q. Okay. And then when the APA came along with DSM IV in 1990, they used the word dependence.
A. Correct.
Q. And you've told us that even though the label is different, they're basically interchangeable.
A. They are.
Q. They are.
Now is it also true that after all of these different labels and different pronouncements, that the criteria or the definitions for addiction have changed in the minds of the scientific community since 1964?
A. Science is not static. I mean when you learn more things you have to adapt to science moving forward. So as we learn more about these things, definitions change, test names change, a lot of things change.
Q. Right.
A. So that's -- so -- so it's not static. It didn't stay like it was in '42 or --
So this is the current operational definition that we operate under.
Q. Right. If we use the current operational definition that is accepted by the scientific and medical community today, smoking is addictive, or call it dependence -- a dependence-producing substance; true?
A. Nicotine is.
Q. Nicotine --
A. And nicotine --
Q. -- is dependence-producing.
A. If you take nicotine out of cigarettes, they wouldn't be addictive.
Q. Okay. Now isn't it also true that as the definitions have changed and science has come along, if we went back to some of these other materials -- oops.
Let's take caffeine. Isn't it true today that under the current definitions of dependence and even addiction, that caffeine -- I don't even know if I'm spelling that right -- caffeine is a substance of dependence in some people?
A. Not according to the DSM IV. And that's -- that's really --
In fact, they have a subset of that on caffeine intoxication. But as far as the World Health Organization or the AMA, APA, classifying caffeine as an addictive substance, that's not done.
Some of the criteria that are used for substance dependence people with -- that are users of caffeine have. But, you know, I don't -- I don't know --
Q. Dr. Hurt --
A. I don't know anybody that drinks coffee, I don't --
Certainly doesn't kill anybody. Certainly doesn't kill 400,000 people a year. So on orders of magnitude, we're talking about something that's not even on the same page.
MR. BERNICK: Your Honor, I move to strike as being non-responsive. I asked a very specific question.
THE COURT: Okay. It is non-responsive.
MR. BERNICK: Sorry?
THE COURT: It is non-responsive.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. Are you familiar with the publications of Dr. Benowitz and Dr. Henningfield and Dr. Hughes on the subject of whether caffeine is a substance of dependence and addiction?
A. I'm familiar with a lot of their articles. There has been a fair amount written about this, actually.
Q. Okay.
A. But I'd have to look at which ones you're talking about.
Q. We keep on talking about these names, Dr. Benowitz, Dr. Henningfield. And Dr. Hughes we haven't talked about as much. Is it fair to say that Benowitz and Henningfied are probably some of the best-known and most highly regarded scientists and doctors today in the field of nicotine dependence?
A. They're well recognized, yes.
Q. Indeed, they are some of the principal authors of the 1988 Surgeon General's report; correct?
A. They were -- they were two of the most -- most influential ones that did the most, yes. They were very much involved.
Q. And isn't it true that they have written specifically with regard to the addictive nature of caffeine?
A. They've written about that. I think that all three of them have articles about that.
Q. Okay. And isn't the position that is taken by Dr. Benowitz, Dr. Henningfield --
MR. CIRESI: Objection. Objection. Counsel is testifying. The form of the question is inappropriate.
THE COURT: Well I haven't heard the question so it's hard for me to rule. BY MR. BERNICK:
Q. Isn't it the view of Dr. Benowitz, Dr. Henningfield and Dr. Hughes, all of them, that caffeine is a substance of dependence and addiction?
MR. CIRESI: Same objection, Your Honor.
THE COURT: You may answer that.
A. I'd have to see the articles you're talking about. They write a lot of articles. So let's just turn to one.
Q. Okay.
A. I mean that -- which page?
Q. I'm sorry, take -- take a look at tab -- or volume two, tab 42, Exhibit GK100225.
A. Which volume?
Q. Volume two, tab 42.
A. Just a moment.
Q. Okay. And it's GK --
MR. BERNICK: Mike, it's GK100225.
A. Okay. If I've seen this, it's been a while, but it's from the Annual Review of Medicine.
Q. Peer-reviewed journal?
A. I've never had anything published there. I've never reviewed any of the articles there. I don't know if it's quite the same as a peer-reviewed journal or not. I think it may be more requested articles submitted. But that's okay. I don't -- I don't know for certain it's a peer-reviewed journal, Annual -- Annual -- Annual Review of Medicine. Could be.
Q. Okay. And Dr. Benowitz obviously is an authority in his field; correct?
A. Yes, that's correct.
Q. And just take a look --
This article on the clinical pharmacology of caffeine, would this article be recognized, insofar as who the author is and the subject matter, would this author -- would this article be recognized as a reliable authority in the field of those practicing or dealing with nicotine dependence and addiction and caffeine dependence and addiction?
A. Yeah, he's -- he's an authority, yes.
Q. Okay.
MR. BERNICK: Well we would offer it as a learned treatise, Your Honor.
MR. CIRESI: Objection on relevance. No objection on learned treatise.
THE COURT: Okay. It will be allowed into evidence then. BY MR. BERNICK:
Q. It's a rather extensive article on -- on the clinical pharmacology of caffeine; is it not?
A. Yes. That's what it says.
Q. And in fact it goes on for quite some time talking about the different properties -- different pharmacological effects of caffeine; right?
A. That's correct.
Q. And in the course of the article it considers issues such as physical dependence. "Abstinence from a drug such as caffeine has produced a high degree of tolerance" --
Tolerance is one of the criteria for dependence and addiction; is it not?
A. That's correct.
Q. -- "commonly results in withdrawal symptoms" --
That's another criteria for dependence and addiction; is it not?
A. Yes, it is.
Q. -- "referred to as physical dependence. Withdrawal symptoms after prolonged consumption of caffeine include headache and fatigue most commonly with anxiety, impaired psychomotor performance, nausea, vomiting, and an intense desire for coffee a less common feature. Withdrawal symptoms typically begin at 12-24 hours and peak at 20 hours. Relief of withdrawal symptoms appears to be a substantial component of the satisfaction of coffee drinking, particularly the first cup of the day." Do you see that statement?
A. Uh-huh, yes.
Q. And the overall introduction provides an overview. It says, "Caffeine is the most widely consumed stimulant drug in the world. This article reviews the human pharmacology of caffeine".
Is caffeine a substance that has drug effects, Dr. Hurt?
A. Yes. Yes, it is.
Q. Okay. And drinking a cup of coffee gives you a dose of a drug with pharmacological effects; true?
A. As long as it's caffeinated coffee, yes.
Q. And only if it's caffeinated coffee.
And caffeine is also in soft drinks; is it not?
A. Yes, it is.
Q. Okay. And what that article is saying is that there is also some evidence that caffeine produces some of the other tests or indicia for dependence: tolerance, which means you get used to more and more.
A. Right.
Q. And withdrawal, which is when you stop it or abstain, you have symptoms that will result; correct?
A. Correct.
Q. It then it goes on to say, "Mankind's most popular drug." And it goes on to say, "Widespread caffeine use is of interest in that it reflects the propensity of people to use stimulant drugs with the attendant addiction liability;" that is, the risk of becoming addictive. Right?
A. That's what addictive liability is, yes.
Q. "And it may contribute to human disease;" is that what it says?
A. That's what it says.
Q. Okay. Now isn't it also true that Dr. Benowitz in expressing his view actually has petioned the FDA to perform a review of caffeine because of its addictive properties and determine whether further regulatory steps should be taken with regard to caffeine and soft drinks, particularly because soft drinks are consumed by kids?
MR. CIRESI: Objection, relevance, Your Honor.
THE COURT: Sustained.
MR. BERNICK: I believe -- I'm sorry? I'm sorry, Your Honor, I didn't -- I didn't hear.
THE COURT: Sustained. BY MR. BERNICK:
Q. Are you familiar with Dr. Henningfield's views on this same subject?
A. I've seen some things that Dr. Henningfield has written, yes.
Q. Is basically Dr. Henningfield taking the same position as Dr. Benowitz; that is, that caffeine is an addictive substance?
A. I --
MR. CIRESI: Excuse me. Objection, Your Honor, relevance.
THE COURT: I think we've pretty well covered that area. Let's move on.
MR. BERNICK: This would be a good time to break, Your Honor, if it's convenient for the court. I'm more than happy to go on for a while, but I'm at a break.
THE COURT: Let's recess for lunch. We'll reconvene at 1:40.
THE CLERK: Court stands in recess to reconvene at 1:40.
(Recess taken.)
AFTERNOON SESSION.
THE CLERK: All rise. Court is again in session.
Please be seated.
(Discussion off the record.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated. BY MR. BERNICK:
Q. Good afternoon.
I want to get back to a couple clean-up questions on the design of cigarettes and a question I asked you about regarding low delivery cigarettes, Dr. Hurt.
Remember we talked about the advertisements, then we talked about what science says today about compensation -- this is all pertaining to low delivery cigarettes -- and then finally I asked you what science has said about whether -- what "low delivery" means to the smoker in terms of risk, whether there was a reduced risk from lower delivery cigarettes. And I think you told me -- we talked about the epidemiological studies. I wanted to focus on another source of information for just a moment, and that is the Surgeon General of the United States.
Are you familiar with what the Surgeon General of the United States has said about whether lower -- lower delivery cigarettes carry with them a reduced risk of lung cancer?
A. I -- I need to see the documents you're talking about, so --
Q. Okay. If you could turn to -- this would be Exhibit JG -- or GJ114, --
A. Do you have a volume number?
Q. -- which is the '81 Surgeon General's report.
I guess it's in CG237.
MR. BERNICK: Is that right, Michele?
Q. Okay. And turn to page 18.
A. I just need to know where to look. What volume?
Q. I'll just give it to you.
Recognize that as the '81 Surgeon General's report? If you turn to page 18, --
A. Okay.
Q. -- do you see where it makes statements regarding cancer and lower tar cigarettes, paragraph one? Do you see the paragraph?
A. I see that, yeah.
Q. Okay. And again, this is 1981. Deliveries in cigarettes -- tar deliveries in cigarettes have been coming down really since about the early 1950s; is that accurate?
A. Something like that.
Q. Yes. And it was at that time that they first had widespread usage of filters that were being added onto the ends of cigarettes; right?
A. Right. That was the first health-reassurance sort of product, was to add filters to the unfiltered cigarettes.
Q. Okay. So we're now kind of almost 20 years later, and the Surgeon General says, "Today's filter-tipped, lower tar and nicotine cigarettes produce lower rates of lung cancer than do their higher tar and nicotine predecessors. Nevertheless, smokers of lower tar and nicotine cigarettes have a much higher lung cancer incidence and mortality than do non-smokers." Do you see that statement?
A. I see it, yes.
Q. Okay. And further on, if you -- if you deal -- if you go down to paragraph seven, "Even those who do not develop cancer, histologic changes in the tracheobronchial tree are more advanced at autopsy in smokers of cigarettes with higher tar and nicotine than among smokers of cigarettes with lower yields." Correct?
A. That's what it says.
Q. And then finally when you get to the tar content of smoke condensate, "The tar content of smoke condensate in many of today's cigarettes is less tumorigenic to mouse skin than that of cigarettes of 30 years ago. Levels of the known carcinogen benz(a)pyrene are lower in the smoke of today's cigarettes than in that of cigarettes of 30 years ago. Flavor additives used in lower tar and nicotine cigarettes produce traces of mutagenic compounds."
Were those the basic statements of the Surgeon General in 1981 regarding whether lower delivery products in fact do produce lower risk, Dr. Hurt?
A. Well those are some of the statements. You know, this is a whole --
This is a big report, even though it's not quite as long as the other ones. That's what it says. Those are in the summary, I think. Yes, it goes back to the other -- page 16, which talks about the summaries of the pharmacology and toxicology, cancer, cardiovascular disease, chronic obstructive lung disease, pregnancy and so on. So these are the summary statements from that.
Q. Okay. Now I wanted to ask you a little bit about something else you said con