DIRECT EXAMINATION - DR. CHANNING ROBERTSON 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 12, PAGES 2198 - 2369
24FEBRUARY 4, 1998
DIRECT EXAMINATION - DR. CHANNING ROBERTSON P R O C E E D I N G S.
THE CLERK: All rise, Ramsey County District Court is again in session, the Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning.")
MR. CIRESI: Good morning, ladies and gentlemen.
(Collective "Good morning." )
DR. CHANNING ROBERTSON
called as a witness, being previously
sworn, was examined and testified as
follows:
DIRECT EXAMINATION (cont'd) BY MR. CIRESI:
Q. Good morning, doctor.
A. Good morning.
Q. Doctor, when we recessed yesterday we were about to discuss the actual construction or design of a cigarette, and do we have an animation to help in that, and also a blowup of the cross-section of a cigarette?
A. Yes.
MR. CIRESI: Could we have, for illustrative purposes only, Your Honor, Exhibit 30231.
MR. BERNICK: No -- I'm sorry, Your Honor. No objection.
THE COURT: All right. Court will receive 302 -- 301?
MR. CIRESI: 231, Your Honor.
THE COURT: 231, for illustrative purposes.
BY MR. CIRESI:
Q. All right, doctor. We have Exhibit 30231 on the monitor, and if you could describe first of all the various elements of a cigarette.
A. As we described yesterday, the cigarette contains and has all the elements of a -- of a drug-delivery system, and this morning I'm going to be describing to you how those elements are fabricated and how they're assembled and -- to produce the final product.
So on this graphic we can first begin with the tobacco column, which is the dark cylinder which contains the reservoir of nicotine, and as we'll find out, it contains various tobacco materials that are blended together according to certain specifications. And that tobacco column is then wrapped with a cigarette wrapper paper in order to contain it and hold it in place.
The cigarette wrapper paper itself has certain characteristics that are involved in the operation of the cigarette, primarily certain additives that are put in the paper, and the paper porosity, how porous it is in terms of its ability to allow gases to exchange across its surface. Then on the majority of cigarettes sold today there is a filter section, and it consists of three elements. First there's a filter plug, and this is typically in most cigarettes a cellulose acetate material. You can think of it as if you had a large number of pieces of spaghetti lined up and parallel and you bundled them together. The cellulose acetate filters are strands of a polymeric material or a -- a natural product, cellulose, which has been treated chemically that are all bundled together so that the smoke that passes through the filter has to contact it, and as a result, some of the materials in the smoke are deposited on the filter as the smoke passes through it.
The filter plug, or the cellulose acetate material, has been itself contained in what's called the tipping paper, which is yet another kind of paper that surrounds it and holds it in place, and also to help hold the filter material together, these fibrous strands, there is a plasticizer generally that's added to the filter material as well.
Now the filter has to be joined to the tobacco column and cigarette wrapper, and that's done by using what's called a -- a tipping paper, and the tipping paper is typically the brown or cork-like paper that you see on the end of a cigarette, and it covers not only the filter plug and its plug wrap, but it overlaps the tobacco column and cigarette paper a small distance so that it can be glued on. So in the cigarette-making process, these two units, the tobacco column and the filter, are brought together, and the tipping paper is put around it and essentially they're simply glued together.
Those are the key elements of a modern cigarette.
Q. And have we had prepared for illustrative purposes an animation to show the varying types of tobacco that are used in the manufacture of cigarettes?
A. Yes. This animation will take us through the cigarette assembly and manufacturing process schematically, and we'll begin then.
So the first thing that's happened is that you need to bring together the various materials that are going to form the tobacco rod. Roughly speaking, about 60 percent of the material in the tobacco rod actually comes from the leaf of the tobacco plant. And in American blended cigarettes there are four primary kinds of tobacco that are used, there's a tobacco which is called burley, which is an air-cured tobacco, and it's typified, generally, as having a higher nicotine content than others and a lower sugar content. It also has -- tends to have a high what we call nitrate content, which is a nitrogen-containing compound. And to some extent the reason that burley is like this is because of the way in which it's grown, both in terms of the kinds of soils, the manner in which it's fertilized, the manner in which it's grown by the farmer, and the manner in which it's cured after the -- after the plant is harvested, since this is an air-cured tobacco. It's allowed to age, the leaves are allowed to essentially undergo further chemical processes that occur as essentially the leaf ages and certain chemical reactions occur, changing the chemistry of the leaf. So the burley tobacco forms one component.
Next is a flue-cured tobacco, also known as Virginia or bright, Virginia from where it was -- either is or -- or was once grown, and bright referring to the color of the leaves, but the flue-cured indicates the manner in which it's aged. So once this kind of tobacco is -- is harvested, it's first of all grown in a different type of soil, it has a different kind of fertilization scheme. It's -- it's topped, for instance, so that the plant can't get as high as it might want to, which forces it to produce more carbohydrate, which in the end confers on it a higher sugar content. So it's a -- a median nicotine material that has relatively high sugar content compared with the burley. And then it's cured differently. It's flue-cured, which means that it's -- it's cured at higher temperatures. In fact it goes through stages of higher temperatures as it's cured and prepared for cigarette manufacture.
Then there's a third kind of tobacco that's known as oriental, sometimes also referred to as Turkish. Tends to be tobaccos that are imported. They can be found growing in and around the Mediterranean countries. They tend to be moderate levels of sugar and tend to be a bit -- little lower in nicotine, and they tend to be very aromatic.
The fourth kind is the Maryland tobacco, which is -- tends to be a more alkaline tobacco. It, too, has a -- like the burley, a low sugar content.
So these four kinds of materials are grown separately, they're harvested, they're aged in their own special way, and these are brought together in certain blends, a certain percentage of burley and a certain percentage of flue-cured.
It's burley and flue-cured that occupy the highest percentages in the blends, followed by the oriental, with generally a small amount of the Maryland. And each of the manufacturers have their own recipes in terms of how -- how they blend these different tobacco types together.
I should point out that even on a typical tobacco plant, the nicotine level varies from bottom to top, and so tobacco leaves are graded based on not only where they're grown and what kind of plant they are, but where the leaf came from on the plant.
So once the harvesting and the grading of the leaves are done and the purchasing is done by the -- by the manufacturer based on the kinds of materials that they would like to have in their -- in their cigarette, the leaves are taken to what's called a stemmery, and this is an operation where the stem -- which is what remains, looking up here -- is removed from the -- what's called the lamina or the -- what we would think of as the leaf part of the material. Approximately about one-third of the top of the leaf is simply just cut off and considered to be lamina because the stem ribs are pretty small, and the bottom two-thirds, approximately, is taken to the stemmery where it's thrashed in such a way to separate the leaf material from the stems.
So we have now a portion of the tobacco column. We have a blend, if you will, of the lamina from four kinds of tobacco.
Now the stems themselves represent about 20 to 25 percent of the weight of the tobacco leaf, and so there is a -- an economic -- certainly an economic desire to try and use that material in tobacco processing, and indeed the stems are used. They have to be treated because if you see a tobacco stem, it's -- it appears just like a stem of a -- of a plant, it's woody and doesn't look at all like the leaf, the leaf material, and so it has to be processed in a way that allows it to be incorporated into the cigarette blend and into the tobacco which actually goes into the cigarette. So now we have two kinds of material, we have the lamina material, we have the ribs and the stem.
Now the cigarette manufacturers are -- are quite adept at reducing the waste during manufacturing; that is, the dust, the broken leaves, materials that might spill out on to the floor. This material is all collected together continuously and fed back into the -- into the process to incorporate it to make total -- essentially as much as total utilization of the product as they can. So these materials, the -- the waste materials, if you will, even cigarettes for one reason or another that are knocked off the manufacturing line, are returned to the -- are returned to the process. So there's very, very little waste.
So these ribs, stems and these sweepings you see aren't exactly -- and they're not tobacco leaf, so they can't be incorporated at this point into the tobacco makers, they need to be processed, and to do this, they're processed into something that's known as reconstituted tobacco. As I said, the lamina, the actual tobacco leaf material from these four kinds of tobacco plants constitute, let me say, roughly on the order of 60 percent or so of what you find in the tobacco rod. Maybe a little more, but that's roughly about right. So another fraction of the remainder, another 20 percent or so is comprised of this reconstituted tobacco, which is made from the stems and the waste materials that you encounter in processing. So in order to make this, in a sense, equivalent to the lamina so it can be processed like the lamina, like the leaf material, these waste products are turned into what would look to you and me like paper, like a -- sort of like a brown paper bag. Because you see, these materials are themselves plant materials. Just like a tree is turned into paper, these materials can be turned into a paper. And these paper materials or sheet materials, as they're sometimes called, fall into the name of "reconstituted tobacco."
Now there are two primary ways that you can make reconstituted tobacco -- there's actually more, but there's -- there's two that are -- that are -- are used typically in industry. One is called band cast reconstituted tobacco, and the other is called paper reconstituted tobacco.
The band cast reconstituted tobacco uses very, very fine materials for its feedstock, so either fine dust, very fine particles or stems and sweepings that have been ground up into a very, very fine powder. In effect it looks and feels very much like a powder material.
Now the way paper is typically made is you take your woody material, your fibrous material, say, from the tree, and it goes through a process known as pulping where the cellulosic materials are dissolved, they're made into a slurry or mixture, and they're spread out on a moving belt and dried. This is how paper is normally made, paper that you're writing on, newspaper and so forth. In this band cast process, because of the very, very small particles that are -- that are being used, they tend not to have long fibers because they've all been ground up, and so it's difficult to simply slurry this material and cast it out onto a moving belt and dry it because it doesn't have a tendency to hold itself together. So what is used in the industry is -- is ammonia compounds such as diammonium phosphate or ammonium hydroxide, or both. These are compounds that contain ammonia which are added to a mixture of this dust and water, and what these compounds do is they're thought to liberate certain constituents, certain chemical constituents in the tobacco material in such a way that when you take this slurry and -- and allow it to be spread out on a belt and you draw the -- you draw the liquid out and dry it, these materials that have been liberated by the ammonia compounds act sort of as a molecular glue to hold the paper together.
So the key thing to remember on band cast is that it's the small particles, that there's a chemical addition of ammonia compounds that serve as -- help serve to promote the gluing process that holds this paper together.
So this material is then spread out onto a moving belt and it goes through dryers. The fluid is removed. And so coming out the other end of the process is something that looks very much like a big piece of paper. It may be eight or 10 or 12 or 15 feet wide coming off this belt. And typically it's chopped up immediately after it's made into fragments that are, oh, about this size, about four by four inches, something like that. But you can see that at that point it's starting to look like a tobacco lamina, a piece of the tobacco leaf, so that it has some of the same sort of textural characteristics so that it can be included with the leaf material, and then these are processed together.
Now in the paper process, which is another way of making use of these waste materials -- the materials aren't the really small particles, they tend to be larger materials, they tend to have fibers in them so that you can actually, for all intents and purposes, simply just run it through a paper machine just the way paper is made. And you do that by, again, making a slurry, a liquid slurry of this material. And it goes through some rendering processes where it -- the -- the fibers are -- are treated so that they will be in a physical form that will allow the paper to hold itself together once it's dried.
And this is run through essentially a paper machine, and when the paper is -- is -- is made, certain additives are put on the paper, and these additives include things like sugars, ammonia compounds, dispersants, flavor additives. So these are -- are -- are put on one or both sides of the paper, and then that's dried again. Looks like a paper-coating process.
You see this all the time. If you read National Geographic magazine, you'll notice that that paper looks very different from news print, and that's because it's a coated paper. After the paper was made, a coating was put on it. This is much the same thing.
So what this does is it gives the tobacco and cigarette manufacturers an opportunity to add back material that came out of the tobacco when they put the water in it. When they put the water in to make the slurry, some of the water-soluble materials would come out, such as the nicotine, so that's added back in the process.
So coming out of this machine is a -- another very wide band of paper which is then chopped up and then treated very much like the leaf lamina. So for companies like Philip Morris and Brown & Williamson, which use both the band cast and the paper reconstituted tobacco process, they have these two materials to blend in with the other four.
So you can begin to see that making a cigarette is very much following sort of a recipe: so much of this kind of tobacco, so much of this kind, so much of this kind, so much of the band cast reconstituted tobacco, so much of the reconstituted tobacco, to make the full, final blend.
We're not even done yet. So those are some of the ingredients that -- that go into it at this point.
So what we'll do is just demonstrate a paper-making process, because in the paper-making process the paper is made -- here it comes -- the paper is made from the -- in the paper-making process, and then the additives and extracts -- when I say "extracts," I mean this is the material that came out when they were -- when they were taking these stems and sweepings and so on and they put it in -- in the -- in the water, you just can't make a paper with that, we've got to take some of that water away. You have to have a certain amount of water in there, but you can't have too much because it's too thin, it's not -- it's not thick enough. And so they save that extract that comes out because it does contain materials that were in the tobacco, and they bring it over and they put it into -- schematically into this tank. And they add it back along with other chemicals, as I said, such as the sugar and such as the ammonia compounds.
So then it comes out of this bath and then it goes into a dryer, and now you have your reconstituted material which contains the ribs, the stems, the sweepings and these additives, and it then is cut up and added to the tobacco column.
Now there's yet another kind of material that goes into the cigarette, and this is called expanded tobacco. Expanded tobacco offers the manufacturers a means whereby they can use essentially less material, less tobacco in making the cigarette, but still have a cigarette of the appropriate length and of the appropriate firmness. And I think the -- the best way to -- to explain expanded tobacco is simply that the tobacco is cooled or is -- is -- is mixed with a liquid, typically under high pressure. Now these liquids could be carbon dioxide, which becomes a liquid at -- at a very low temperature and a very high pressure, or you can use ammonia. Ammonia has been used, or freon, freon has been used, which is a chlorofluorinated hydrocarbon known as a CFC. These materials, these liquids, carbon dioxide or freon or ammonia, are used essentially to freeze the -- freeze the tobacco.
This material is forced into the tobacco matrix and it's frozen, and then as the pressure is released and as the material warms to room temperature, it expands; that is, it fluffs. It's not unlike popping popcorn where you start with a little -- couple kernels and you end up with a big bag of popcorn. So you have the same mass that you started with, it just occupies more volume. And this is the concept of expanded tobacco. You can get anywhere from 50 percent or greater increase in volume. So you can see, then, that the manufacturers can put this material into the tobacco column, which takes up less room so they can use less material. Because as you might expect, they are operating under economic constraints, they're trying to be efficient, and as long as the reservoir contains a sufficient amount of drug and nicotine, there's no use having more than -- more than you really need there, because it will simply go to waste.
So the expanded tobacco is also added -- and this should be expanded tobacco -- and so you have all these materials that comprise the tobacco rod. And as you also might imagine, the manner in which a character is given to cigarettes depends on how these blends -- what recipe is followed in putting these blends together.
Now one thing I should say is that the leafy material or the lamina material is treated before it's put in the tobacco column. The burley tobacco, when it comes into the plant, is typically cased. And this is a terminology that the manufacturers use to represent the addition of chemicals to the burley lamina. As I said, burley is low in sugar, and so the typical additives -- and again, each company has its own secret formulas and recipes, but typically the additives would include sugar, licorice -- tobacco industry is the largest consumer of licorice in the country -- cocoa, chocolate, in some cases ammonia compounds such as urea. Not in all cases, but in some cases.
So the burley tobacco is -- is treated a little bit differently than the others, or the burley and Maryland are treated a little bit differently than the others, than the oriental and -- and flue-cured.
Now some of the oriental and flue-cured is also cased in some operations as well, so that again in order to tailor the blend, the manufacturers have an opportunity to add chemicals to the tobacco as it's being processed and prepared for the final blending operation. Once the final what's called "cut filler" is achieved -- and this is where all these streams have come together, the material has finally been chopped up to a -- a determined what's called "cut width "-- how wide are the little strips. If you take a cigarette apart and you look at the -- and it's an informative thing to do -- if you look at the pieces of material in there, you'll see that they're all fairly uniform in size, and this is because the material goes through cutters that cut it to these -- to this particular size.
Now the final -- we're not done yet. Once you have this final what's called "cut filler blend," there's generally one more operation, which is it's put into a flavor spray operation where typically a suite of flavors, generally in quite low concentrations because they tend to be natural oils, natural flavorants, any number from a half a dozen to a dozen or more that are mixed together, and the tobacco cut filler goes through a large rotating drum which is rotating, and generally it's being sprayed on like a shower from a shower head onto the tobacco, and then it comes out. The moisture content is watched very carefully. And then these are put into large bins, and they're held there until that bin is used for the manufacture of a particular cigarette.
So as all this material moves through the plant it begins to gain character, if you will, that ultimately, when it's at the end, it will become a Marlboro Light or a Marlboro Red or a Pall Mall or Lucky Strike or -- or something of that nature.
Now the tobacco material is taken from these large storage containers when the -- when the cigarette is ready to be manufactured, and typically it's pneumatically conveyed through pipes to the cigarette manufacturing part of the plant. And it goes through -- into machines, cigarette-making machines, which dispense a certain amount of the tobacco, typically on the order of, say, three quarters of a -- of a gram. But rather than making each tobacco separately, what's done is the -- the paper, this paper that goes around, it comes out in a very long strip and the tobacco is just put on this strip. If you can imagine, the strip is moving by and the tobacco just falls on it. And then it's rolled. So in fact what you really end up with is a really long cigarette which is then chopped up to make the cigarette body. So you have the paper, it's continuously running, tobacco is continuously dropping on it, and then the machine folds it and glues it, and then it's chopped up into the proper length.
So we have a few additives that are put in the cigarette paper. Typically they're additives that control the rate at which the paper will burn and also give some color or character to the ash that's formed when the cigarette burns.
Now this is wrapped around the rod. As I said, this is a continuous process. And having done that, we need to add the cellulose acetate tow, which is the plug which is the filter material which is manufactured in -- nearby to the cigarette-making machine. The plug wrap is put around it and the tipping paper is added, and then they're joined together and you have the final product.
There's one other step, however, that is used in many cigarettes, and that is to add ventilation holes to the filter portion of the cigarette. Now the ventilation holes can be made mechanically, by basically poking a hole, or by electroperforation, which is like essentially hitting it with a little light-beam strike, or I think as is most often done now, the cigarettes basically pass in front of a laser and the laser, as shown at least schematically here, burns the hole pattern into the cigarette.
So if you -- and I think Dr. Hurt, as I understand, showed you this, where you take a filter apart and hold it up to the light and you can see the holes. And some -- some filters have one line of holes, some filters have two lines of holes, some have more; some have bigger holes, some have smaller holes, and some cigarettes you just simply can't see them. Now this is for the purpose of allowing air to come in and dilute the cigarette smoke stream. And so this happens during the cigarette-making process, and when that is done, the cigarette's ready to smoke.
So when the cigarette is lit, it begins to burn, and at the point where the cigarette is burning we have a combustion zone where oxygen is being brought in, and it's literally combusting the tobacco material, and this creates a terrific amount of heat. Locally at the burning column the temperatures can be eight hundred or nine hundred degrees Centigrade at the point where the cigarette is actually burning. And so we have this very hot combustion zone and there are gases formed, the combustion gases. The combustion gases could be carbon monoxide on carbon dioxide and so forth. And right behind the combustion zone and surrounding the combustion zone where the material is being heated we have a region -- if you can imagine if you're in the tobacco rod and someone has lit it on fire, and that -- that front, that combustion front is moving toward you, you're going to get warmer and warmer and warmer, and if you don't leave, you'll be combusted. But what happens is a number of the -- of the chemical constituents in the -- in this tobacco matrix of this -- all these materials that have been put in, they start leaving the tobacco material. They -- before they really burn, they get ejected out of the material, and they can undergo chemical decomposition, thermochemical decomposition which is called pyrolysis. And what "pyrolysis" means is they in a sense undergo a chemical change but they don't, as we would think of it, burn up the carbon dioxide and water. They're not -- what we say it in chemical terms is they're not completely oxidized, they're just partially combusted.
Now what this does is it causes a tremendous number of new chemicals to be synthesized, because these partially-combusted chemicals are now in a very reactive atmosphere and they're -- and remember how I described how a molecule is like a Tinker Toy where they're falling apart and they're coming together and they're falling apart? And this is why cigarette smoke contains, in some, so many thousands and thousands and thousands of chemicals, because you're taking a very complex material that already has a huge number of chemicals in it, heating it up, and allowing even additional ones to form.
So in this pyrolysis zone, it's a -- it's a place where materials are not completely burned up, is the way to put it, and you have this what we call pyosynthesis, creation of new materials.
Now even a little bit further, when the -- when it's just starting to get warm, there's this moving front that's coming to you and you sense the heat, if you are a semi-volatile chemical; that is, if -- if you have a means of essentially evaporating out of the material, you -- you will when it gets warm enough, and we call this distillation. But what it is is it's simply the transfer of a chemical from the solid material -- we call it the solid phase, the tobacco -- into the vapor.
Now nicotine is an example of just such a material. It has a reasonably high volatility. So that as the tobacco material is warmed and -- and continues to warm up, it will vaporize, it will leave the solid phase and go into the gas phase, but it won't be chemically changed because it didn't get so hot that it actually fell apart and recombined into something else, and it didn't get so hot that it actually burned up.
Now some of the nicotine will burn up, some of the nicotine will be taken apart and made into something else, and some of the nicotine will simply come off the tobacco unchanged. And this is true for a wide variety of the chemical compounds that one finds in tobacco.
So the three processes you want to sort of keep remembering is the sort of complete combustion or burning, then this pyrolysis or pyrosynthesis of new chemicals, and then the distillation process where materials just come off unchanged, get into the smoke and are carried with it.
Now what is smoke? If you're sucking on this tobacco rod and drawing air in through the fire cone, the combustion products, which are very hot, including the materials that pyrolyze, the new chemicals, including the ones that distilled off, begin to move toward your mouth, but as they do, they go through the tobacco rod which is now quite cool, so they condense. At least those that can condense will, much like a fog. And so these little liquid droplets start nucleating all over the place inside this tobacco rod when it's cool enough, and this is what forms those little liquid droplets I was telling you about yesterday, the aerosol droplets that comprise the smoke.
And so when you draw this in, the smoke really consists of billions and billions of these little liquid droplets being conveyed in this moving gas, and the moving gas contains some of the chemicals that didn't go into the droplet as well as gases that don't condense like carbon monoxide and nitrogen and oxygen. So this is what goes through the tobacco rod, through the filter and into your mouth.
Now of course as it's going through this tobacco rod and through the filter, these gases and these particles are encountering the material in the tobacco rod, and when they go through the filter they encounter the material in the filter, so some of them are removed. They're removed because they either hit the material and stick to it or because they -- they move in a -- as they're moving toward your mouth, they also move in the -- what we call the radial direction, and they might -- might find a surface or they might find a fiber in the filter and they'll stick. So that serves to take out some of the material.
Now this becomes even more complex because, as you might imagine, some of this moves through the tobacco rod and deposits some of these little liquid droplets. When the fire comes, finally gets down to them, they all come off again. And so you sort of have this marching effect of -- of materials that are redepositing, being elevated out into the smoke stream again and redepositing. It's a very, very complex process that's going on here.
So finally the smoke is taken in and it's -- it's taken into the mouth, into the nasal cavity, and it contains, as I said, thousands and thousands of chemicals, some of which are out here in the -- what we call the gas or the vapor phase, that's like what's around us here in the -- in the -- in the air in the courtroom, and also contains little particles. And I think the best way still to think about it is like a fog. What you see when you see a fog are the little droplets of water. So here we have little particles, little liquid droplets, which also contain thousands of chemicals.
And some of these chemicals are what we call partitioned between the liquid droplet and the vapor phase, so you will find nicotine both in these particles and you'll find nicotine out here in this vapor phase.
Q. Thank you, doctor. I'm going to change tapes and then ask you some questions on -- I'm not leaving you, I'm just stooping down here.
A. Maybe I'll preface, while he's doing this, what's about to happen. I'm going to show you a video of an actual cigarette-manufacturing process so that you can -- you can connect with what you -- what I've told you verbally and what you saw in the animation with the actual machinery and operations that one would encounter in a cigarette-manufacturing facility. And what we'll see first is a band cast process, making this sheet of paper using the very, very fine particles, and then we'll see a paper-making process, and then we'll see the actual cigarette blending and manufacturing process.
MR. CIRESI: The record should reflect, Your Honor, that the previous animation was Exhibit 30255, and we'd offer that for illustrative purposes. And --
MR. BERNICK: There's no objection to that.
MR. CIRESI: The next one coming up is Exhibits 30256 and 30257.
MR. BERNICK: There's no objection to this, Your Honor.
THE COURT: All right. Court will receive 30255, '56 and '57 for illustrative purposes.
MR. CIRESI: It should be up, doctor. I've switched control to you.
THE WITNESS: Okay, give it a try.
MR. BERNICK: I'm sorry, Your Honor, I believe those were tendered for demonstrative purposes only; is that correct?
MR. CIRESI: That's correct.
MR. BERNICK: And so received?
THE COURT: That's correct. And received in that way, yes.
A. Okay. So the first thing that we'll see is a band cast manufacturing process, if Mr. Ciresi was able to handle the technical issue here.
Q. If not, I have a technician in the audience who will help.
I'm not looking at defense counsel.
(Laughter.)
A. I'd suggest you seek some --
Q. Is it up?
A. -- some assistance.
Q. Need a little bit of time to boot it up.
While we're waiting for it to come up, doctor, can you turn to Exhibit 30151.
THE REPORTER: Mr. Ciresi, is that 30151?
MR. CIRESI: 30151.
BY MR. CIRESI:
Q. And is this an illustrative exhibit of some of the additives that are added to American cigarettes?
A. Yes, it is.
Q. And in your review of the formula documents of the defendants, were you able to ascertain that additives of these natures were added to American cigarettes?
A. Yes, definitely. As I said, every -- every cigarette that's manufactured according to a particular brand has a set of specifications for the casing material, which is added to the -- either to the material, the Maryland or to the flue-cured tobaccos, and in the final flavoring step, and these are all listed out and specified very carefully for each of the -- each of the cigarettes that is made. And this gives you an idea of the suite of, I don't know, five or six hundred kinds of chemicals that are added to the cigarettes during the manufacturing.
MR. CIRESI: Your Honor, we'd offer Exhibit 30151 as a summary under 1006.
MR. BERNICK: Your Honor, we have no objection to its being displayed to the jury in the fashion which it was, as a demonstrative. To be able to know whether it's an accurate summary or not, we'd have to go back and compare it. We frankly have not had the opportunity to do it; didn't think it would be offered for that purpose. So I'm not -- not prepared to really stipulate to the admissibility. But we can go ahead and do that and let the court know.
THE COURT: Well we'll allow it for demonstrative purposes at this time, and subject to your review.
MR. BERNICK: Okay.
THE COURT: You can move to strike it after if you find something inaccurate.
MR. BERNICK: Thank you, Your Honor.
MR. CIRESI: We think we have it, Your Honor.
THE WITNESS: Yeah, looks pretty good.
A. Okay. This is the receiving area. Remember, this is for the -- the band cast process. And the materials that are brought into the -- are brought into the plant come in large containers such as these that we see here, and this will contain the feedstock material for the band cast reconstituted sheet material. This could include stems, although for stems to be used, they're going to have to be ground up to be very fine, or it could be dust and very fine particles that have been collected in the manufacturing plant where the cigarettes are made or in the plant where all the blends are put together.
As I said, there's a -- quite a bit of effort made to include the total -- the total material into the -- into the final products so there's very little waste. So this is the receiving area where the various materials are -- are brought in and prepared for the band cast process. They're put into these --
These big boxes you saw are put into these large bins, and these bins basically lift up those boxes and dump them in such a way that they can be conveyed into the process. This is a -- basically what's called a hammer mill. And in this machine what you saw being dumped out of the boxes is passed through this machine, which literally pulverizes the material into a dust. So if you're feeding stem material or broken leaf material or whatever, once it comes out of here, out of this machine, it's -- it's very, very fine powder.
Then this material is conveyed and put into large tanks or storage silos where it's held, and then it's taken to what's called the slurry preparation area. So you can imagine you have this powder, you put it into a tank, and now you add ingredients to the tank. So you'll be adding some water, and in this case you can see you're adding ammonia. And remember, I indicated that the -- in this case the ammonia appears to be required in order to create the molecular glue to hold the material together. So the ammonia or the ammonia solution is contained in that particular tank. Then there's other tanks that contain other materials that are going to be put into this slurry, into this mix.
You can think of it sort of like, you know, making a cake or something. So you see this tank has a material called isosweet, and this is a sugar material. Propylene glycol is a material that is being used as a humectant or a moisture-retaining material. And this is a glycerine head tank. Another chemical in -- that little tank is a flavor tank. Then you have the ammonia tank. So these are all mixed with the slurry and then the slurry is put into an aging tank where it's -- it's held so that the chemical reactions can occur among all these ingredients.
Then after it's aged for an appropriate amount of time, it's then cast onto a stainless steel belt. And you can get an idea of the consistency of this material right there. That's what's cast onto the belt. And that will become a paper product once it is put onto the belt and then goes through a series of dryers.
Here you see it coming out of the dryer. So that's what the paper looks like, it's a dark -- a dark material in this case.
And these are the dryers. And what's happening here is that the paper is moving along and then it comes back and loops around and comes out dried and in the form of a -- of a paper. So you're putting basically a slurry down on a stainless steel belt and then drying it.
And now what -- what we'll see as you look inside, you'll see a conveyor belt conveying this paper material. It's now been cut up. So this is the band -- this is the band cast material cut up, and now that can be taken and blended in with the other ingredients. But since that doesn't happen at this particular location, it's stored, it's packaged in these round barrels. A huge cylinder comes down over the round barrel and those little pieces of paper that you saw in the last frame fall down through this large cylinder, then a big ram comes down, sort of like a trash compactor in your house, and smashes this material into this container to compact it. And here comes the ram back up. Very much like your trash compactor.
This lifts off, and now this is full of band cast recon that is chopped up into those little sheets that we saw. You can see it.
In the back there you see another one filling. There's another cylinder behind there that's filling a container.
So this container now, which is full of the band cast material, is taken over to this station where a top is put on it. And the top is pressed in. And then this material can be taken to the cigarette manufacturing facility and used as part of the -- of the blend.
Now we'll look at the other kind of reconstituted process, the paper process. And again, the material is brought in in these large containers. And remember, this is the process now where you don't have to grind it up to a dust -- or they don't grind it to a dust, they use larger particles. Again, they use stems and broken leaf and waste material.
Now there's a good picture of stems. It looks just like you'd imagine a stem to look like. They're, oh, I don't know, an inch or inch and a half long. And they come in in these large containers. And of course I couldn't put something like that into a cigarette, so this obviously has to be treated.
And these are then -- these various materials are dumped using these automated hoppers which lift them up and dump them into the process flow stream, so the various kinds of materials, the stems and the waste, the broken leaves and lamina are put together in a -- in a proper proportion according to the recipe that they're -- that they're following. And you can see these are all waiting to be dumped.
And now we go into the next part of the process where that dry material that has been dumped has basically a pulping solution added to it that causes -- and these are what I call the pulpers, these tanks are where that material is mixed with liquids that cause it to basically turn into a mush, the best way I can describe it. Very much -- this is very similar to the paper-making process for any kind of paper. So in these -- in these large tanks the material is being chemically broken down, and it looks very much like a mush, which is then passed through a pipe called the tobacco stock pipe, and that goes overhead.
It's pumped overhead to a series of presses, because at this point there is too much fluid in the material. It's too watery to make paper. So it goes into these rotary presses, which you can sort of just think of as a roller in the kitchen that you roll dough out with, and you simply squeeze out the water. It's very much the same kind of technology used to make orange juice. And now you can see this material, which is sort of a very thick mush coming out of the press.
And the liquid which was pressed out has to be treated because the liquid that was pressed out contains many of the ingredients of the tobacco material. This contains certainly nicotine and other water-soluble materials which the manufacturers want to preserve and -- and keep in the process. So this is the material that goes to make the paper. So we have two streams now, the mush, if you will, and what I'll call the extract; that is, the juice that was squeezed out.
Think of it as making orange juice. When you make orange juice, you have the pulp that's left, and that you go make the paper with.
And then the juice comes out -- I'll call it the extract -- and that's going to come back into the process in a little while.
So here we have a material that's going to be made into the paper, and then here is the extract; this is the material that was squeezed out. It would be like the orange juice. But here what's happening to it -- very much like orange juice -- it's being concentrated. When you buy orange juice, frozen orange juice in a can, you're really buying a frozen orange juice concentrate as opposed to when you buy the large bottles where they haven't concentrated it.
So this concentration is done by evaporating off some of the water, and this is the -- this black liquor material is the -- is the extract which will be added back to the paper later on.
Now this is the paper machine, and as you can see, it's a -- it's a sizable piece of equipment, probably a hundred feet down to the other end. And in this machine, that pulped material is spread out onto a moving belt, it goes through a dryer which dries it, and then what you're looking at here is a -- it's called a Yankee dryer, it's this very large rotating drum, and it turns. And right here is where the paper is being peeled off the drum, like you peel the skin off of an onion. So by the time this wet material moves through the dryers and dries and goes up over this drum, which is also sucking water and vapor out, it now has become a paper. And there's a little knife that cuts the paper and separates it from this drum. And now you have your paper made.
Now you have to put on the additives on this -- on this paper, and so next to the paper-making machine is a room which has a large number -- in this case -- of tanks of the various additives and chemicals that will be put on the paper. Now one of the things that will be put back on the paper is this concentrated extract. Another thing here is a dispersant, which allows the material to spread. Another additive here is DAP, which is an ammonia compound, diammonium phosphate, which is added to the extract material before it's put back on -- on the paper. And these are metered, they're carefully measured.
The -- the amount of material to be added, in this case the diammonium phosphate, is mixed with the extract in the mixing tank, and then from this mixing tank the material is taken over to the paper machine where we'll see it added onto the paper.
So these are all the pipes bringing the various chemical additives into the final mix tank. Other additives include urea, which is an ammonium compound, Jono, which is crushed -- which is St. John's Bread, it's a flavorant, and N10, which low-fat cocoa, and isosweet, which is a sugar. So these are all fed from separate tanks.
Now you go back out to the paper-making machine and you'll notice up here how it looks very wet and here it looks very dry. So this is -- where the arrow is is the dried paper that was just made, and it's now right -- over in this region the paper is going to be submerged in this additive material where you're taking the extract and adding it back and you're adding the sugar and the ammonium compounds. And up here it's wet, so it goes into a dryer and that dries this material onto the paper. So they're coating it now with these chemicals.
Sometimes -- in the picture it looks like the paper is actually moving in the opposite direction it is, but you can see it's moving up into the dryer.
And right there is where the paper is coming off the Yankee dryer. So this is where the paper is being scraped off the dryer. It runs through some rollers and then it goes into the coating area. And you can see how fast that's -- how fast that's moving.
So it's now coming toward us, and then right below us -- we'll look down -- and there you see, right in here, you'll see the liquid that's being pumped from the room that had all the tanks, and basically the paper is being submerged in this liquid. You can see it's just being flooded with this -- with -- with liquid, the paper is being wetted, being coated with this.
And this is a -- basically a fluid-type coat operation where you're putting much, much more into this trough and running the paper through the trough. And the paper is actually moving from right to left. And that's the wet material, the additive, the extract, the ammonia compounds, the sugar and the flavorants.
And there you can see -- right here you'll see the excess fluid running out of the coating bath, and it's returned to the room that had the tanks -- there it goes into a pipe. That will be pumped back to the room that had the tanks and then be pumped back out to the paper-coating machine again. So this liquid is just running in a continuous circle. And some of it is -- is left behind on the -- on the paper.
Now it comes out of the dryer. So what we're seeing here is the paper coming out of the dryer and it has the coating on it now, so this is the coated paper reconstituted sheet. And there's a series of cutters that cut it up. The cutters were over here. And then it's --
The cut material, the cut paper is taken up this conveyor belt. It's going to be put into this rotating drum. And this rotating drum adjusts the moisture of the material, and then once that's done, it's going to be shipped off for packaging and then taken into the cigarette-manufacturing facility.
So there's the rotating drum. Here's the cut material going essentially through that wall and into the next room. So this is the paper recon, which is completed, and it goes into one of these essentially huge trash compactors again. It's about two stories high. And you can see it falling through the glass there.
It's conveyed over. It's allowed to fall down into one of these containers, and then a ram -- actually what happens, it's kind of interesting, this whole cylinder fills up, and then a ram just pushes it all the way down and compacts it into the ram barrel, which puts the top on it, and moves another barrel in to prepare it for being loaded. So this big hydraulic ram will come down, it will envelop the container, it will clamp onto it, then the recon paper will come into this big vessel, it will fill, and then the ram will push it down. And these will be taken to the cigarette-manufacturing facility.
So now what we've seen is the band cast recon has ended up in these packages that go to the cigarette-making plant, and the paper reconstituted tobacco that has been made on another operation, it's going to the cigarette-making plant.
So now we'll go to the cigarette-making plant. So at the cigarette-making plant, what you see are all the various blends that are coming in. You can see them being moved across this -- this conveyor belt here. And remember, what you'll find in the cigarette-making plant, then, is you'll find band cast recon, if they're using it, you'll find paper recon, if they're using it, you'll find bales of oriental tobacco, you'll find boxes or what are sometimes called hog's heads of burley and Maryland and Virginia or flue-cured tobacco. So these are all now coming together into the plant, and these have to be blended according to very, very strict specifications.
Now some of these are stored until they're used in large rows, much like library books, using these automated fork lifts. And these automated fork lifts move up and down these rows either putting the various kinds of tobaccos in certain places or removing them as needed.
Now as a blend recipe is being followed in a plant, you have to take all these different kinds of materials which are compacted into these boxes and get them ready for the assembly, so what you see here as sort of like little soldiers marching in line are the various kinds of tobaccos and reconstituted materials that are awaiting inclusion into now the master blending process.
These all carry a bar code on them so the computers know exactly what's coming and when, and the manufacturers can, you know, ascertain that the right material went into the right place.
And you can see that you have different -- different-looking kinds of material representing the various kinds of ingredients that are going to go into the blend.
So the boxes have been removed and these are lined up. Generally you have to -- these are compacted so tightly they have to be delaminated, and sometimes they'll put steam probes in to loosen the material. But this is completely automated. And once these are delaminated, and some -- sometimes they are cased, they are now put into blending -- blending silos as they're called. Because you'll see we're bringing in a burley or we're bringing in a -- an Oriental or some recon, and the way they're blended is the material, once it's been conditioned and moisturized and delaminated, is dropped into these very, very large containers from an overhead moving assembly which lays down essentially corn rows, it looks to me; goes back and forth and back and forth laying down the various materials. And at the very end of that is a huge rake. Once it's full, then you can mix it up and mix the blend together.
So there is the burley top casing. So what -- what you saw -- what you're seeing here is the burley tobacco, which is being taken into the casing cylinder and being top cased with sugar and licorice and so forth.
Now here you see a blend, it looks like some blend -- some recon coming in at the top and dumping down onto another line of material. So the blending operation, it's called the dry blending operation as you start bringing these various streams together.
And now this is a cutter, which is now cutting it down to a much smaller size, as you can see, dumping it onto another conveyor belt.
Now you see even more blending going on. You'll see the material coming from the left, material coming from the right. This is all, of course, prescribed by the formulation. And finally you have your flavor cylinder at the very end of the line which puts the final flavor on. You can see there are many of them. But each -- each kind of cigarette will have generally a different flavor specification. And then that material is stored in these large bins, and it's now ready to go into the cigarette manufacturing.
Now what you're looking at here is the filter-making process. This is how the filters for the cigarettes are made. The material that goes into the filter enters the plant this these large bales, this is cellulose acetate, and it comes off as a ribbon. And you can see it coming off. It goes over a loop and down into the machine where it's basically formed into a cylinder by this machine that we're now going to look at.
You really can't see what's going on inside the machine, but that ribbon is being turned into a -- a little rod and a plasticizer is added.
And now here come the filters. Now these filters aren't cut to size yet, you can see they're pretty long, because they are cut a little bit -- they're cut a little -- a little bit later in the process. And as these filters are made, they're stored in these overhead bins where you see them moving around up here. Because if they -- if --
You have to remember now, this is a continuous process. Cigarettes are being made all the time, and so you're going to need filters all the time. And if the filter machine breaks or if they have to change a bale, they have to stop the machine. So this serves as a surge area to store already-made filters that you can draw on if the machine stops.
And you can see down over here, here's -- here's at filter-making machine. There's one back here in the far right-hand side of the screen. And so they're just lined up one after another, obviously making -- there's enough filters to satisfy the demand of the cigarette-making machines. And you can see there's banks of them. They're about two deep, and I don't know how -- how many long there were, 10 or so.
Now this is a cigarette-making machine. What you're seeing here is the tobacco coming out of those large bins. That's the final tobacco that's been made. It's been cased, it's been flavored, it's been cut, and the whole blend is made. And they're making Marlboro Lights in this particular machine. And so this is going into the cigarette-making machine, coming from the blends -- from the silo, from the storage silo into this machine.
And again there's not a whole lot to be seen other than to know that the paper is being brought in, the tobacco is being put onto the paper, being formed into a rod. Up above here at the top what you're seeing are the filters which were made in the machines we just saw. They've now been brought over to the cigarette-making machine because they need to be added to the rod.
You get a sense of the speed at -- at which these machines are working. And when the filter is added to the rod, then the laser puts the ventilation holes in them, if there are any ventilation holes to be added, and out come the finished cigarettes.
Now these machines are running on the order of ten thousand cigarettes per minute, eight to ten thousand cigarettes per minute. And in one plant I saw they had 72 of these machines.
And here you can see the cigarettes now are coming down. These are the finished cigarettes. They're coming down this hopper and they're going to be split into two streams and then split into one, two, three streams. This is seven cigarettes, six cigarettes, and seven cigarettes. Seven, six and seven give you 20. So this is how they divide the cigarettes up, put 20 into a pack. And these three streams here are actually going to be brought together to create the 20 cigarettes. It's going to be wrapped up in a -- in a piece of foil, held into place, and then go into the packaging machine.
So if you're making ten thousand cigarettes a minute, you're making about -- I guess it would be about 500 packs a minute if I did my -- you might want to check me on that, multiplication or division correctly.
And here come the packs. Now they're not in the package yet, they've just been bundled together in packages of 20. And then what this machine is doing is putting the various wrappings on to delineate the package. In this case I believe it was Marlboro Light. And what you're seeing coming in is some of the material that forms the package. And there's the packs coming out, each one holding 20.
And there they go. Now they're scurrying all around. And they will be directed to a carton machine, and the carton will take an appropriate number of packs and package them into -- into cartons. So as you can see, this is a very- high-speed process. When you have a machine that's making eight to ten thousand cigarettes a minute and you're in a manufacturing facility that has 60 or 70 machines that are operating, you can see that you're making maybe three quarters of a million cigarettes a minute.
And here's a packaging machine. It's putting the cartons together. Then these cartons are put into boxes and then these boxes are taken to a warehousing operation and then sent off for distribution.
And this is just looking down at all the various cigarette machines. You can see how -- how large this facility is. Each one of those is a cigarette-making machine, each one with a capacity of -- the ones I saw at least were around eight to ten thousand cigarettes a minute.
Q. Thank you, doctor.
MR. CIRESI: Do you want to take a morning break there, Your Honor?
THE COURT: Why don't we 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.
BY MR. CIRESI:
Q. Doctor, when you were describing the reconstituted tobacco which -- which can consist of either a band cast slurry or reconstituted paper, you were talking about the need for binding the band cast slurry and that diammonium phosphate was put on for that purpose. Is that correct?
A. Typically diammonium phosphate and ammonium hydroxide are used to elicit this molecular glue effect.
Q. And with regard to the tobacco that's reconstituted paper, does that need that type of binding?
A. No. As you may recall in the -- in the video, the -- the paper was made and then it was dipped in the -- in the bath that contained the chemical additives, the ammonia compounds and the extracts. So in the paper process it doesn't -- it doesn't need the ammonium compounds to act as a binder; it's just simply added on on the surface.
Q. Now you described how certain chemicals are extracted, goes into the slurry, and then it's placed back on either the tobacco paper or the band cast; is that correct?
A. Well in the band cast, the slurry of the material contains the ammonium compounds and -- and the band cast product is just simply made. The paper process, you do create this extract that has to be added back, and that contains the water solubles, and that's to which they add these additional chemicals, the sugars and the ammonia compounds and the low-fat cocoa and so forth. That gets added back on on the paper process.
Q. Now I believe you said nicotine is extracted out and then it's placed back on?
A. Nicotine is in the extract because it's water soluble, and so it goes through the concentration process and then it's contained in what we call the extract to which these other chemicals are also added, then that -- all that is put back on -- on the paper.
Q. Is there any chemical significance to the fact that the nicotine is placed on the paper, on the cover of the paper, if you will?
A. Well when the raw material came in for that process, it was stems and broken leaf and tobacco material which contains the nicotine bound to the plant structure in the way it was made and transported in the -- in the plant, so now it's been -- it's been taken out of that structure, chemically removed, and then added back on top of -- on top of the paper, so it's no longer in that -- in that same physical environment, and the effect that that has is to make it easier to -- to release.
Q. What do you mean by "release?"
A. Well it's referred to as the nicotine transfer efficiency, which is the ability of -- or the capacity for the nicotine to leave the solid material and be removed into the vapor phase when the cigarette is combusted.
Q. So when you're smoking, you're talking about going from the tobacco itself into the smoke itself?
A. Right. And that -- the efficiency of that process is -- is enhanced by having physically relocated the nicotine on -- on the material, taking it out of where it is in the cells and then just basically physically absorbing it to the -- to the material. So it's in a -- it's in a position to be removed more easily, is a way to look at it.
Q. Doctor, I'd like to direct your attention now to some design parameters of the cigarette. From your review of the documents, did you learn of the term "compensation?"
A. Yes, I saw it referred to in the documents.
Q. Now from a design standpoint only, I want to direct your attention to that.
Did the defendants take into account compensation in designing their cigarettes?
A. Yes, they did.
Q. Can you direct your attention, please, to Exhibit 10299, which is in volume one. This is a Philip Morris document, it's a presentation entitled "Smoker Psychology Research" by Dr. Wakeham, presented to the Philip Morris board of directors on November 26th, 1969.
Is this one of the documents that you reviewed during the course of your investigation?
A. Yes, it is.
Q. Does it form, in part, the basis of your opinions that you have and will render in this case?
A. It does.
MR. CIRESI: Your Honor, we would offer Exhibit 10299.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 10299.
BY MR. CIRESI:
Q. We have the title page up, "Smoker Psychology Research" by Dr. Wakeham, presented to the Philip Morris board of directors, November 26th, 1969.
Could you direct your attention, doctor, to the page which has the number at the top seven, and it has the Bates number, last three, 748. In this part of the presentation does Dr. Wakeham address the issue of compensation to the Philip Morris board of directors?
A. Yes, he does.
Q. And can you describe what is being stated here by Dr. Wakeham?
A. He's apparently showing some slides, and in or around slide ten he said, "This great variability among smokers results from the fact that a smoker tends to seek his own level of intake. Even while smoking a single cigarette, he adjusts the volume of his puff as he goes down the rod, compensating for the change in the density of the available smoke."
Q. Now what's the significance of that, if anything, from the standpoint of the design of the cigarette?
A. From a standpoint of a drug-delivery device design, as we discussed yesterday, typically the control of the delivery of the drug is put into the hands of the manufacturer, and it's preset, if you will, at the factory. What distinguishes a cigarette is that that control is put into the hands of the consumer, and so the consumer, by adjusting the way in which the device is -- is used, can modulate, moderate, or adjust the nicotine that's going to be delivered to their body.
Q. Is that referenced at that portion of page seven of Exhibit 10299, next to the notation "Slide 12?"
A. Yes. Down toward the bottom of the page, if you look at number -- number three in particular, it says, "A smoker's intake level is determined by the smoker himself, not by the manufacturer of the cigarettes." In this case, not by the manufacturer of the drug-delivery device.
Q. Doctor, can you direct your attention, then, to Exhibit 11275, still in volume one. This is a BATCo Ltd. document dated 12-9-84?
A. Yes.
Q. And it's entitled "R&D VIEWS ON POTENTIAL MARKETING OPPORTUNITIES?"
A. That's right.
Q. Is this one of the documents that you reviewed?
A. Yes, it is.
Q. And does the document form, in part, the basis for your opinions?
A. It does.
Q. And are the subject matters addressed herein also addressed by other documents of the defendants that you reviewed during the course of your investigation?
A. Yes, that's correct.
MR. CIRESI: Your Honor, we'd offer Exhibit 11275.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 11275.
BY MR. CIRESI:
Q. And can you direct your attention, first of all, to paragraph one under "HIGH PRIORITY." It says "A. HIGH PRIORITY," and then one.
A. Right.
Q. And does this document address the issue of design for allowing the cigarette smoker to take her or his own desired level?
A. Yes. They're talking about the design of a -- of a product, and as one of the high priorities is the design of products that, as they call it, are elastic or compensatable. And it says in the document that, "Irrespective of the -- Irrespective of the ethics involved, we should develop alternative designs, paren, that do not invite obvious criticism, close paren, which will allow the smoker to obtain a significant -- to obtain significant enhanced deliveries should he so wish."
Q. And -- I'm sorry, go ahead, doctor.
A. I was simply going to say I interpret that as design attributes are being considered that will engender this built-in ability for the device to be controlled by the user any way that they see fit.
Q. And in paragraph two of this document, are nicotine deliveries the subject of what should be research and development by B.A.T?
A. Yes. That's the second high-priority item entitled "Nicotine Deliveries."
Q. And what is the significance of that portion with respect to the issues that you're here to testify to, doctor?
A. Well it recognizes that -- first of all, that nicotine is the key pharmacological component of cigarettes, that that is in fact the paramount issue in terms of the design to accomplish a nicotine-delivery device, and they're searching for or -- or directing attention to the need -- "have a greater understanding of the role in nicotine in the context of smoking" in terms of its irritation, in terms of its impact, arousal and satisfaction. They point out that the need perhaps to use animal research, as they say, "albeit in the medical departments or contract research establishments," and asking the question whether or not smokers smoke for the transient peak effects, which would be the rise and fall of the concentration of -- of nicotine as it's taken into the body versus the build-up of -- of nicotine levels in the blood in the body as the day goes on and the smoker smokes.
And then turning the page, they point out -- and this is with respect to nicotine deliveries -- that another area of importance is the exploitation of both physical and chemical means, any way that can be done, either by means -- a means to increase nicotine transfer, that is, to increase the effective utilization of nicotine, meaning to have a very efficient way of removing the nicotine from the reservoir and delivering it to the recipient.
Q. Did your review of the documents reflect whether or not the defendants did research the ways to effectively increase the utilization of nicotine and its transfer?
A. Yeah, there was extensive research aimed at that, yes.
Q. Can you direct your attention, doctor, to Exhibit 13250, which is in volume two. This is a document dated June 28th, 1985 directed to Mr. E. E. Kohnhorst, executive vice-president of B&W, carbon copy to Mr. T. E. Sandefur, S-a-n-d-e-f-u-r, who was the president of Brown & Williamson, and it's from R. A. Sanford, S-a-n-f-o-r-d, who was vice-president for research and development. Subject, "Research Program Future Products."
Is this one of the documents that you reviewed in the course of your investigation?
A. Yes, it is.
Q. Does this document form part of the basis of your opinion that you are rendering in this case?
A. It does.
Q. And is the document consistent with respect to the subject matter it addresses in documents of other of the defendants that you reviewed in this case?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 13250.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 13250.
BY MR. CIRESI:
Q. At the top we see that this is a Brown & Williamson Tobacco Corporation Research, Development & Engineering internal correspondence, it's marked "CONFIDENTIAL" along the side, it's dated June 28th, 1985.
With regard to future research projects, does this document address the issue of design of the cigarette with regard to the issue of compensation?
A. Yes, it speaks to design and compensation.
Q. And can you direct our attention to where that is?
A. Toward the bottom of the page, it's -- it's involved with a discussion of -- of innovative products that might be developed in the next few years, and Dr. Sanford is -- is listing four areas in which he feels knowledge should be developed, and in one he refers to is compensation. He says "It exists; most smokers practice it, but we need to understand it better before advantage can be taken in the marketplace. Here, I believe designing to the subconscious is preferred to requiring the smoker to commit a conscious act."
Q. And based on your review of the documents, what does that mean, designing to the subconscious rather than having a smoker make a conscious act?
A. It -- it might mean having a design element that could be altered or modulated during the act of smoking, but without the smoker really knowing they've done it because they're only responding to the desire they have for particular intake of the drug substance as opposed to consciously doing something to the device to change the way in which it operates.
Q. Does the cigarette from a design standpoint, and with regard to nicotine, allow for that type of -- in its design, allow for that type of subconscious action by the user?
A. Yes, certainly.
MR. BERNICK: I have an objection to form.
THE COURT: Okay.
MR. BERNICK: Can we have some specificity to exactly what's being referred to?
THE COURT: Could you rephrase that, counsel? BY MR. CIRESI:
Q. What design parameters address this issue in the cigarette, doctor?
A. Oh, one that comes to mind is, for instance, the ventilation holes. On many, many brands of cigarettes the ventilation holes are not visible, and people who don't know that they're there could cover them up by the way they hold the cigarette or the way they place the cigarette in their mouth and therefore alter the manner in which the drug is delivered, versus having the ventilation holes opened, as an example.
Q. Now did your review of the defendants' documents reflect whether or not the defendants established a general control over the nicotine that was delivered in cigarettes?
MR. BERNICK: Objection, leading, Your Honor.
THE COURT: It is leading, counsel.
BY MR. CIRESI:
Q. Did the defendants research ways to control nicotine?
A. The defendants, in the documents that I reviewed, spent considerable effort in searching for ways to control nicotine delivery in cigarettes. No question about that.
Q. And can you direct your attention, please, to Exhibit 13431, which would be in volume two of the documents in front of you.
This document is entitled "PROCEEDINGS OF THE SMOKING BEHAVIOR MARKETING CONFERENCE," July 9th through 12th, 1984, and it's marked "CONFIDENTIAL," and it's a B&W document.
Is this one of the documents that you've reviewed with respect to the testimony you're giving in this case?
A. Yes, it is.
Q. Does this document form part of the basis of your opinions?
A. It does.
Q. With respect to the documents that you reviewed in this case from the other defendants, is it consistent with respect to the subject matters that are addressed therein?
A. Yes.
MR. CIRESI: We would offer, Your Honor, Exhibit 13431.
MR. BERNICK: No objection.
THE COURT: Court will receive 13431.
BY MR. CIRESI:
Q. Title page is up, "PROCEEDINGS OF THE SMOKING BEHAVIOR MARKETING CONFERENCE, June 9th to 12th, 1984, SESSION III."
First of all, doctor, can you describe just generally what this document is about?
A. Well apparently there was a -- a conference held over these three or four days in 1984. What this particular exhibit is is the -- is referring to session three at that -- at that conference, and what it focuses on in part is nicotine and the control of nicotine in smoking.
Q. Can you direct your attention, please, to the paragraph -- or I'm sorry -- to the page which has the last three Bates numbers 312.
A. 312?
Q. Yes.
A. Yeah.
Q. And at paragraph five of that page is the issue of nicotine addressed?
A. Yes.
Q. And what is set forth therein, sir?
A. Well they're discussing compensation and they're discussing what it is that leads to compensation. They say that "Consumers may have been obtaining 14 to 16 milligrams of PMWNF" -- that means Particulate Matter, Water and Nicotine Free, that's another word for tar -- "(a normal equivalent nicotine delivery) for a very long time, compensating down to 16 milligrams when cigarettes deliver 25 milligrams and compensating up if they are now smoking a 13 milligram," as if they're seeking some kind of a level. "The discussion was biased on examples using PMWNF but it is accepted that nicotine is both the driving force and the signal (as impact) for compensation in human smoking behavior."
Q. And if you go back to the previous page, then, from a design standpoint, does it reflect whether or not B&W was taking compensation into account in designing products?
MR. BERNICK: Your Honor, again I object as leading. And there's no foundation.
THE COURT: It is leading.
BY MR. CIRESI:
Q. Just direct your attention to paragraph two on page eleven, and specifically the second paragraph. What is reported there?
A. They're talking about designing products which aid smoker compensation. What they say is that "Compensation by modifying the smoking regime (b)" -- which refers to (b) above, puffing/inhalation, increasing or decreasing the puff volume, duration, puff frequency and amount, these are all things in the control of the smoker. "Compensation by modifying smoking regime is a topic which is being explored at GR & DC" -- now this is a research laboratory -- "and this includes designing products which aid smoker compensation." So it's clearly stated that in the design process and in the design thinking, compensation is one of the attributes that the designers wish to confer on this drug-delivery device.
Q. Can you direct your attention, please, doctor, to the page which bears the last three numbers 333. And what is set forth on this page?
A. This looks like an agenda of something referred to as the nicotine conference. It has seven sessions. First session is dealing with the nicotine dose requirement. And this goes back to what we were talking about yesterday with regard to this dose-range window, what -- what -- what is it and where is it, because that's how you need to design the device. You need to have some sense of where that is. The nicotine dose estimation. Sensory and psycological effects of nicotine. Session on the effects of nicotine, interaction with the brain, pharmacology. The effects of nicotine, this time interaction with peripheral tissues or physiology. Product modification for maximal nicotine effects. This would speak to design issues. And then a general session.
So you can see that this conference is heavily devoted and focused to nicotine all the way from dose to the effect and to the manner in which the product could be modified in terms of design.
Q. And can you direct your attention, then, to the next page with regard to session one. Does this give an overview of session one of this conference that was held in 1984?
A. Yes. Each of these sessions had -- has an objective. This is the session on nicotine dose requirement. The objective is "To examine evidence that supports the hypothesis that smokers smoke for nicotine based on market trends, smoky behavior and the tar-to-nicotine ratio of products."
Then it goes on to summarize, "Smoky behavior measures support oversmoking of reduced delivery products."
Number two, "Plasma nicotine and cotinine," which is a degradation product, an oxidation product of nicotine that happens in the body's metabolism, "Plasma nicotine and cotinine measures indicate 'maintenance' of nicotine intake.
"0.7 milligram nicotine products and above provide satisfaction" -- so this says something about the level at which the product might be set for delivery -- and "smokers require 12 to 14 milligrams of nicotine daily." So this would be a daily dose regimen.
Then they talk about developing a product matrix to specifically identify the role of nicotine.
Q. And can you direct your attention, then, to the next page, which is session two, "NICOTINE DOSE ESTIMATION," and describe what that session was about in 1984.
A. Here the objective was "To review the current status of plasma/urinary measures estimates of nicotine dose and to identify the significance for the smoker and" now "product design." So the product design is going to reflect to some extent the ability to understand the relationship between the dose and the levels of nicotine in the blood or in the urine.
And the subheadings on this, "Under appropriate conditions plasma nicotine and cotinine measures can be used to estimate the daily nicotine intake." So they're basically affirming that a measure of the delivery that occurred to the recipient can be established by either -- by -- by plasma nicotine levels; that is, the nicotine levels in your blood.
"Findings suggest many smokers smoke to a 'constant' intake of nicotine."
And "Is this cause and effect; can it be resolved using a suitable product matrix."
And "Specific tissue concentrations may be more important determinants: how can they be determined."
So they're asking the question: Perhaps we might even get a -- a better measure in -- in some sense if we measure the tissue levels rather than blood levels, which they also have affirmed can be used to measure the daily nicotine intake.
Q. Can you direct your attention, then, to the next page, which was session three, "SENSORY AND PSYCOLOGICAL EFFECTS OF NICOTINE."
A. Well here they're identifying what they call the full range of the sensory properties of nicotine and asking the question: How well are we equipped to assess them? And how is smoking used as a psycological tool by the smoker?
Q. And under the summary, number two, what's being referred to there, doctor?
A. Well they're referring to what's called the "pH dependent effect of nicotine," the "product matrix and manipulation may provide suitable clues pH." What they're referring to there is that nicotine occurs in different forms depending on the level of the acidity or basicity, or the -- or the pH.
Remember the pH scale went from zero to 14 and seven was in the middle or the neutral, wasn't acid or base, and so they're basically referring to the fact that they understand and recognize that the form of nicotine depends on pH, and they're inquiring as to how they might manipulate the matrix, the product matrix in order to exploit what they're examining.
Q. And can you then turn to the next session, session four, which dealt with "EFFECTS OF NICOTINE - INTERACTION WITH THE BRAIN (PHARMACOLOGY)." What was the subject matter of that session, doctor?
A. Well they're looking into the interaction of nicotine with the body, in particular the mechanisms by which nicotine interacts with the body, and these are at the molecular level, and they want to relate that to not only the smoking behavior and smoking prevalence but to the whole body and tissue concentrations of nicotine. So here is an objective which is trying to relate all the way from smoking behavior to levels in the body to interactions at the mechanistic level in terms of the effect that nicotine has. So this takes you all the way down to the receptor level as in number one, the receptors that bind with -- with nicotine.
Q. And can you direct your attention, then, to the next page, which dealt with session five, and could you please describe the objective there and what the summary of that session was.
A. Well here they're asking a question --
Previous question was how -- the mechanistic effects of nicotine with certain basic receptors, and here they're asking how does nicotine interact with peripheral tissues. Here the focus, as you can see, is on the respiratory tract as well as the whole body, and asking the questions if we -- about that mode of interaction and its significance for not only the product acceptability but the so-called smoker satisfaction or acceptance.
Q. And in the summary, do they reference product development?
A. Well number three, they're talking about investigating the fundamental nature of the upper respiratory tract nerve pathways and reflexes. Because as we talked yesterday, when the smoke is brought into your -- into your body, into your mouth and into your throat, there are sensations. And we had the Pavlov's dogs as an example yesterday of these sensations triggering, if you will, an association of the reward that is to come, and many of these triggering sensations occur in the upper respiratory tract which is enervated and does have nerves in it that can interact with -- with nicotine. And they're trying to understand if they can take what they can learn from those kind of interactions and apply them to product improvement and even novel product development, so exploiting that physiologic response.
Q. And finally, doctor, in this document, can you turn to session six, which dealt with "PRODUCT MODIFICATION FOR MAXIMAL NICOTINE EFFECTS" and describe what was the object of that session of this 1984 conference at B&W.
A. Well they want to maximize nicotine effects, that's the -- that's the -- the objective in this, and what that -- what that points to is trying to make more effectual, if you will, the presence of nicotine, sort of extract the most out of it in terms of the whole-body effect it might -- that in fact results. And so they talk about, for instance, increasing their activity to develop non-combustible products, the possible ultimate test in our understanding of the role of nicotine, because this would be something that would essentially just be a nicotine-delivery device in some -- in some form.
But what it speaks to, as this entire document speaks to, is this -- this tremendous focus that the industry has on -- on their product and -- and trying to deal with it in such a way as to continually improve and make more efficacous its delivery to the recipient.
Q. And in number one, do they address current products?
A. Well they say "Sufficient is known to begin to improve the quality" -- now "sufficient is known" means sufficient is known about some of the effects, the nicotine effects -- "is known to begin to improve the quality and characteristics of current products in terms of sensory and whole body effects based on nicotine modification."
Q. Doctor, can you now direct your attention to an RJR document, Exhibit 13222, which is in the same volume.
Have you found that, doctor?
A. Yes.
Q. Is this a document that you reviewed during the course of your investigation?
A. Yes, it is.
Q. And it is --
Is it one of the documents that forms part of the basis of your opinion?
A. Yes.
Q. And is this document also consistent with what you generally found in the documents of the defendants in this case?
A. It is.
MR. CIRESI: Your Honor, we would offer Exhibit 13222.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 13222.
BY MR. CIRESI:
Q. The title page states "RJR/Biosource Genetics, Joint Research Agreement." And what was this document, doctor?
A. Biosource Genetics was -- appears to have been an outside contractor that RJR had a collaborative arrangement with to develop strains, if you will, of tobacco products that would be genetically -- plants that would be genetically modified, and by genetically modifying these plants they could then control, for instance, the levels at which nicotine might be produced in the plant, as an example.
Q. Did other of the defendants research that issue?
A. Yes. Other of the research --
Other research was done by other defendants in this area of genetic -- genetic manipulation of the tobacco plant for the -- for the purpose of enhancing nicotine production.
Q. And can you direct your attention to page 8093 of this document. And does that address the issue you just described?
A. Yes. You'll see at the -- at the --
They're talking about the applications for the -- for the GENEWARE system, and the GENEWARE system is a -- is -- basically refers to a means -- a means whereby one can alter the genetic makeup of an organism, cause it to behave in a way that at least evolutionarily it had -- had not been doing in the natural sense. And here they're talking about production of either high or low nicotine tobaccos; in other words, influencing the plant at the level of its genomic information to alter the way in which it either synthesizes nicotine to high levels or -- or low levels.
And they talk about the elimination of nornicotine. Nornicotine is a relative of nicotine, and the presumption here is that part of the metabolic energy of a plant goes into the making of nornicotine, and if you could eliminate that part of the metabolic pathway, then the energy that it was expending in making that might better be used in making more nicotine in the plant as a sort of a common way of thinking about genetic manipulations, and that is what's called redirecting metabolic synthesis or metabolic engineering in the organism itself.
Q. And the last bullet point here is "Improvement of Physical Characteristics, Processing Enhancements - Expansion, comma, Shatter." What is that referring to, doctor?
A. Well I think it's referring to perhaps building into the plant a more robust character so that the lamina doesn't shatter when it's being processed, because when it does, you end up with small particles, and then that will probably end up in the recon rather than into the -- into the tobacco lamina part of the plant.
And the same is true, there's some forms of these -- of these tobacco materials that are difficult to expand because they tend to basically shatter when they're -- when it goes through this freeze/thaw cycle. So I would view this as a physical enhancement of -- of the material through some kind of a genetic means.
Q. Doctor, can you now direct your attention to Exhibit 18182, which is another RJR document. This document is dated February 5th, 1950 -- excuse me, February 5th, 1980, subject, "Winston B Nicotine Control." It's from Mr. H. E. Guess and it's directed to Mr. McKenzie, capital M-c capital K-e-n-z-i-e.
Was this one of the documents that you reviewed in the course of your investigation?
A. Yes, it is.
Q. Does this document form part of basis of your opinion in this case?
A. Yes.
Q. And is the document consistent with respect to the general subject matter that it is discussing that you found in other defendants' documents?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 18182.
MR. BERNICK: No objection.
THE COURT: Court will receive 18182.
BY MR. CIRESI:
Q. Doctor, in this memorandum, does the author address the issue of the dose threshold in the cigarette?
A. Well he does to the extent that he -- he talks --
They're talking about Winston B, which was a cigarette that was ultimately launched by RJR, and speaking about nicotine control in this cigarette. And one of the issues having to do with nicotine control, of course, is the nicotine that's in the crop -- crop blends, because that's where the nicotine comes from. And he's talking in the last paragraph, "A nicotine control system with upper and lower limits is one way to address this question," referring to the nicotine content in the -- in the grades that will be used in making the cigarette. They wanted to bracket that, so clearly that's where the beginning of the nicotine control is to get the nicotine in the final product at the right -- in the right amounts so that when the cigarette is smoked, you land in the proper dose range.
Q. Did the other defendants, based on your review of the documents, address the issue of crop variations which would cause variations in nicotine?
A. Sure. This was an area of concern, and for all the manufacturers, because after all they are dealing with a natural -- a natural product, and depending upon dry years and wet years, the amount of nicotine, for instance, in these products can -- can vary, and so the manufacturing process has to be flexible enough to be able to deal with these kinds of natural variations in -- in nicotine. And then as you -- as you deal with those and you bring it into the plant to meet the manufacturing specifications, you have to be able to modulate and control the nicotine all the way through the plant so that finally when it comes out in the cigarette, you know what you have. It has to be made to those specifications.
Q. Doctor, can you direct your attention now to Exhibit 12505, which is about seven months after this document, and it relates also to the Winston B cigarette. And that's in volume one.
MR. CIRESI: This document is in evidence, Your Honor.
Q. Now Exhibit 12505 is one of the documents you reviewed in this litigation?
A. Yes, it is.
Q. And it also forms part of the basis of your opinion?
A. Yes.
Q. The title of this document is "Clarification of my 07/22/80 Memo on Nicotine Additive," date September 8, 1980, it's from the director of research, Alan Rodgman, and it's to Dr. Roy E. Morse, who's a VP for research and development.
Would you direct your attention, please, to the first page -- or the second page of the exhibit. In this memoranda, does Dr. Rodgman address the issue of nicotine technology and the factors which may bear on that issue?
A. Yes. Again we see the focus that in this particular case RJR has on -- on nicotine. It comes out by first of all talking about tar delivery, and then the next issue being nicotine delivery, and then the tar-to-nicotine ratio, which really follows from -- from the -- from those two, and then the whole issue of nicotine satisfaction and the large number of variables that nicotine satisfaction depends on, such as the puff count, how many puffs you take in a cigarette, the volume of these puffs, the tar-to-nicotine ratio itself, the total absolute amount of nicotine that you take in, how much nicotine there is in a puff, plus the free nicotine per puff. This is the -- this is the form of nicotine that's uncharged, the so-called free base nicotine. So it makes a distinction between total nicotine delivery, which would -- which would be the free base form, the uncharged form, or the charged form -- the two together would constitute nicotine delivery -- separates out from that the free nicotine per puff. Because the latter, in turn, is related to nicotine delivery per puff and smoke pH. The inference there is that the amount of free nicotine, that is, amount of the uncharged nicotine, is going to depend again on the acidity or basicity, which is which of these two forms do we have or how much of each.
Q. And doctor, in the paragraph right below the indented paragraph, does Dr. Rodgman set forth what the purpose of this memorandum is?
A. Well the memorandum was -- was basically summarized in what -- what they were trying to do in these graphs and tables that are -- that are attached. RJR saw that in the mid- to late 1960s the Philip Morris Marlboro brand began to exhibit very large sales and started to take a significant portion of the -- of the market share, and the Marlboro brand continued to -- to do very, very well as the -- as the '60s closed and the '70s opened, and RJR was concerned about this and -- and was trying to understand what it was about the Marlboro cigarette that caused this to happen, because their leading brand, Winston, on the other hand, was not holding parity against Marlboro at that time, and it was losing ground.
So what they're talking about here is the way in which they made comparisons between the Marlboro and the Winston in trying to bring Winston and its attributes closer to those of Marlboro, because Marlboro seemed to be doing and in fact was doing very well. So they are talking about the nicotine technology that Marlboro must have, and they focused on nicotine in comparing the two cigarettes, and how they could control the smoke parameters noted above in a., b., c. and d., either by blend formulation or denicotinization rather than addition or transposition of nicotine. Something had to be done in their minds to their blend in Winston to try and achieve this parity with Marlboro, and the focus was on the nicotine delivery and the form in which nicotine was delivered.
Q. And is the form of the nicotine addressed in footnote a on this first page of this text of this memorandum?
A. Yes, it is. Basically what that says is that, first of all, nicotine in the plant, in the -- in the -- in the matrix, is primarily in what's called the bound or the salt form. This would be a charged form of the nicotine molecule. They point out that most of the nicotine in smoke is present as the salt or the bound form and a small fraction is present as free nicotine.
Now remember, the smoke consists of these little liquid droplets and the gas and vapor that surrounds them. The bound form or the salt form or the charged form of the nicotine -- they're all the same thing -- can only exist in a -- in a -- in a liquid or attached to a matrix of some sort, but it -- it can't exist in the vapor. This salt form is not vaporized. The only form of nicotine that can exist in the vapor or in the gas is the uncharged or the free base form, and it can exist both in the liquid and in the gas.
And they point out that the percent of free nicotine depends on the smoke pH, because as the pH goes up, as the environment in which the nicotine finds itself becomes less acidic, or saying it a different way, more basic, whereas the pH is increased, you will create more of the free nicotine from the bound nicotine. So the bound and the free nicotine are in a ratio to one another which is dependent upon the pH, and as the pH goes up, more of the bound nicotine or the salt form or the charged form becomes the free base form or the uncharged form, and as the pH goes down, the reverse happens.
Q. Can you draw that, doctor, with regard to the vapor or gas form and the particle form?
A. Sure.
Q. Please come down and do that.
Before you start, doctor, let me just for illustrative purposes mark this as Exhibit 25013.
A. The first thing I'll do is draw you the nicotine -- droplet of nicotine molecule in what's either called its bound form, sometimes used, its salt form, its ionized form or its charged form. These all mean the same thing, but they're used interchangeably.
Stand back to make sure I've done that correctly. There we go.
Okay. To put this in the salt form or the bound form at low values of the pH, in other words, more acidic, a hydrogen ion from the solution attaches itself to this nitrogen group. Now this nitrogen group, now that it has more than three atoms connected to it, it now has four, takes on a positive charge, and so this entire molecule takes on a positive charge. And where this came from was from the dissociation of water. So when water is in solution, there are some hydrogen ions and some what are called hydroxyl ions in association with water, and at the low pH, some of these will come and attach themselves to the molecule. So this gives the molecule a positive charge. And in this formit can't be vaporized, it has to stay either bound to a solid substrate or present in a liquid form.
So if it's in the droplet, for instance, it can't leave the droplet unless it changes to the free base form. And the free --
Q. Doctor, in smoke then, if it's in the bound form within the particle, you're saying it cannot leave that bound form or the particle of -- of liquid?
A. It can't leave the particle as the bound form. It has to shift to the free base form to be able to -- to get into the -- into the vapor. So this is what we call bound, salt, ionized or charged.
If I take this hydrogen ion away, so now we're back down to -- probably bringing back your worst nightmares of chemistry -- high pH. You'll notice that -- make sure I've got it right. You'll notice that this hydrogen now is missing -- let me divide this so you can focus on -- on the two molecules. And so sometimes what we'll do is we'll just write this as saying that nicotine in its charged form is in equilibrium with nicotine in its uncharged form. So nicotine without the -- without the hydrogen ion attached to it is this bottom molecule, and when you attach the hydrogen, you get the top molecule, and what controls the relative amounts of this is the pH. So you'll move to the right as you raise pH and you move to the left as you lower pH. And so these are in balance, depending on the acidity or the basicity of the solution.
At about a pH of eight, you have about half and half, half free nicotine and half of the bound nicotine.
So the names that are given to this are either free nicotine, unbound nicotine, uncharged nicotine, it's also referred to as free base nicotine.
Q. Doctor, the equilibrium that you talked about moving right to left depending upon the alkalinity or the acidity of the solution, is there any analogy there to when you were talking about the mothball in the corner, you were talking about diffusion and trying to get equilibrium? Was that a different concept?
A. Without getting too detailed, let me say it's a little different.
Q. Okay. That's complicated enough for me, doctor.
A. I have -- I have a feeling everybody is probably so hungry now they probably don't care what it is.
MR. CIRESI: We'll take a short break there, then, Your Honor?
THE COURT: Why don't -- why don't we go. We'll reconvene at 2:00 o'clock.
THE CLERK: Court stands in recess to reconvene at 2:00 o'clock.
(Recess taken.)
AFTERNOON SESSION.
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. CIRESI: Thank you, Your Honor.
MR. CIRESI: Good afternoon, ladies and gentlemen.
(Collective "Good afternoon." ) BY MR. CIRESI:
Q. Good afternoon, doctor. When we recessed, we were on Exhibit 12505.
THE COURT REPORTER: Mr. Ciresi, could you turn your microphone on, please.
Q. When we recessed, we were on Exhibit 12505.
MR. CIRESI: Thank you, Mr. Stirewalt.
Q. Can you turn to the second chart in that exhibit.
A. All right.
A. All right. I'm plugged in.
Q. Plugged in? All right.
A. Just had some coffee. I really am.
Q. Can you tell the court and the ladies and gentlemen of the jury what the second graph on that chart is depicting, doctor? It's a little difficult to make out. And there's some writing or a legend to the right-hand side of the graph itself.
A. Yeah. I think if you just pull it back, Tara, I can explain.
These are two graphs on the same chart. What is -- what is plotted on the left-hand axis is free nicotine, and it's plotted in micrograms per puff.
Q. Are you referring to the graph at the bottom?
A. Yes, the graph at the bottom.
Q. Okay.
A. You can barely read out on the left-hand "free nicotine," and then that's in units of microgram per puff. So that would be the free nicotine delivered in a -- in a single puff of that particular cigarette. And plotted on the horizontal axis is years, from 1970, and the axis runs until 1981, and plotted on there is the free nicotine per puff for two cigarettes, the upper cigarette or the upper line is for Marlboro, Marlboro 85, and the bottom line is the Winston 85.
Q. What do you mean by "85?"
A. It has to do with the length of the cigarette.
Now I mentioned before lunch that RJR, the manufacturer of Winston, was concerned about the fact that Philip Morris, who was manufacturing Marlboro, seemed to be getting -- Marlboro seemed to be increasing in sales at a -- at a rapid pace, and people at RJR were trying to figure out why that was happening. And so they -- they have plotted in this particular sets of papers various smoke parameters in order to try and compare the attributes of each of these two cigarettes, and what they noticed is that of the smoke parameters that they measured, which included the amount of nicotine delivered per cigarette and the tar delivered per cigarette and the tar-to-nicotine ratio, that in 19 -- 1970 they were essentially the same. So based on those three measures, it appeared that the two cigarettes in 1970 were the same in terms of nicotine delivery and tar delivery and the tar-to-nicotine ratio, yet Marlboro seemed to be doing better in the marketplace.
What this bottom plot shows is that one of the parameters that seems to distinguish one cigarette from the other was the amount of free nicotine delivered. The amount of free nicotine delivered by the Marlboro was higher, and you can see that on the axis with the Marlboro cigarette at about four point two or three micrograms per puff, and the Winston at about two micrograms per puff. So the presumption was that in some way the Marlboro configuration was delivering more free nicotine; that is, even though it was delivering the same amount of nicotine, the two cigarettes were delivering the same amounts of nicotine, the form of the nicotine was different in the Marlboro in that more of it was of this free base.
And over the years, over the decade of 1970 to 1979, these smoke parameters actually, both for the nicotine and tar deliveries and the tar-to-nicotine ratios, diverged, and the free nicotine stayed diverged, but by 1980 everything had converged. And so the thought was, well, in 1980 we now have a Winston and a Marlboro which are delivering the same amount of nicotine per cigarette, the same amount of tar per cigarette, the tar-to-nicotine ratio was the same and the free nicotine delivered was the same, so now we may be in a position to be competitive because these attributes have all now matched.
So this was a trace, if you will, over a 10-year span of how these variables changed and how by 1980 they converged.
Q. Doctor, I'd now like to direct your attention to an RJR internal document which goes back in time to 1973. This document we just looked at is 1980. Can you direct your attention to Exhibit 12464, which is the document immediately preceding 12505 in your book.
This is a document dated December 4th, 1973, an interoffice memorandum from Frank G. Colby, a senior scientist, to R. A. Blevins, Jr., director, marketing and planning, subject, "CIGARETTE CONCEPT TO ASSURE RJR A LARGER SEGMENT OF THE YOUTH MARKET."
Is this one of the documents that you reviewed during the course of your investigation?
A. Yes, it is.
Q. Is it one of the documents that you have relied on in part for the basis of the opinions you're rendering in court?
A. Yes.
Q. And is the document with respect to the subject matter consistent with respect to other documents you reviewed during your investigation?
A. It is.
MR. CIRESI: Your Honor, we'd offer Exhibit 12464.
MR. BERNICK: No objection.
THE COURT: Court will receive 12464.
BY MR. CIRESI:
Q. The subject at the upper left-hand corner is "CIGARETTE CONCEPT TO ASSURE RJR A LARGER SEGMENT OF THE YOUTH MARKET," date December 4th, 1973 to Mr. R. A. Blevins, Jr., director, marketing and planning, from Frank G. Colby.
In this document does Mr. Colby refer to the pH regulation of cigarettes?
A. Yes, he does refer to it.
Q. And if I could direct your attention to the bottom of the first page of the memorandum, and let me read part of it -- in fact I'll read that whole paragraph. "In my judgment, for public relations reasons it would be impossible to go all the way back to the 1955 type cigarettes. As far as tar and nicotine in the smoke are concerned, I believe it should be possible to achieve the desired effect by going to a tar level of today's Pall Mall, paren, non-filter type, close paren, of about 29 milligrams of tar and 1.8 milligrams of nicotine. Still, with an old style filter, any desired additional nicotine 'kick' could be easily obtained through pH regulation."
Now first of all, doctor, when there's a reference to "all the way back to the 1955 type cigarettes," what's being referenced there?
A. Well I think these are these -- these are these cigarettes that were being sold in the -- in the mid-
'50s which were generally quite high -- high tar, high -- relatively high tar and high nicotine cigarettes, tar levels up in the thirties and nicotine deliveries of around 2.5 or 2.6 milligrams.
Q. And when he's referring then to "the desired additional nicotine 'kick' could be easily obtained through pH regulation," what is being referenced there?
A. Well what he's -- and this ties into the document that we just looked at. The notion here is is that if you have the form of the nicotine such that there is more of this free base nicotine, because free base nicotine is going to be in the -- in the form that transfers through biological membranes, and its concentrations when the pH is shifted will be higher, that there will be an ability to deliver this nicotine more rapidly or for a shorter period of time to develop more of a bolus in the lung capillaries which would be delivered. So it's a way of enhancing, if you will, the effect of nicotine by changing its form.
And when he's talking about the initial kick, he's basically talking about the physiologic result of having done that. And that, of course, keys in with what we saw in the previous plot that seemed to indicate -- or did indicate that the Marlboro had a higher delivery of -- of free nicotine than did the Winston in 1970.
Q. And if you go back up to the section of the memorandum right under the word "Memorandum," in the second paragraph is there a reference there to Marlboro with regard to the up and coming new generation?
A. Well he says that it's -- it's established beyond a doubt that Philip Morris's Marlboro cigarette has a much stronger hold on the up and coming new generation of smokers than Winston or our other brands. So this is also reflecting what we saw in the previous document. And the notion here is that what's really the root cause of this difference is the form in which the nicotine is being delivered as opposed to the amount.
Q. Can you direct your attention now, doctor, to Exhibit 10014, it's toward the front of the volume in front of you. This is a Lorillard memorandum marked "CONFIDENTIAL" dated June 16th, 1976, it's to Dr. A. W. Spears, who was senior vice-president of operations in research at the time, and later became CEO, from H. J. Minnemeyer, the director of research.
Is this one of the documents that you have reviewed in this litigation?
A. Yes, it is.
Q. Is it one of the documents that forms part of the basis of your opinion in this litigation?
A. It is.
Q. Are the subject matters contained therein consistent with the subject matters that you reviewed in others of the defendants' documents?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 10014.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive zero -- 10014.
BY MR. CIRESI:
Q. You see the date and the author and the addressee, and the subject is "Progress Report on Nicotine Augmentation Project."
Now first of all, in the first paragraph does Mr. Minnemeyer state what the problem is that's being addressed in this memorandum?
A. Yes. What they're discussing here is trying to come up with approaches or -- to a problem or a solution to a problem, and that is how do you deliver more nicotine in the smoke of low tar cigarettes.
And as I described yesterday, during this period of time in the mid-'70s the tar levels are dropping, and concurrent with that the nicotine levels are also dropping. And so now there's a concern, as we enter this era of low tar delivery, how can we prop up the nicotine so that it doesn't fall through the bottom of our dose-range threshold window. So they're thinking of ways to in fact counter that concomitant drop of nicotine, thinking of ways to bolster it up.
Q. And in the second paragraph does Mr. Minnemeyer set forth two general approaches, doctor, to that problem?
A. Yes, he does.
Q. Can you describe those, please.
A. Well one is to simply bring nicotine in and add it to the blend. This is called nicotine augmentation. So this is just pure and simple add more nicotine to a cigarette that's delivering -- that would have otherwise delivered low tar and low nicotine, they would raise it by adding more nicotine. The other was to consider ways in which you could take the nicotine -- the nicotine you have available and somehow optimize its delivery to make it more available or enhance its availability to the user without having to add additional nicotine. So these were the two approaches.
Q. If you could turn, then, to page two. In dealing with the first approach, adding or augmentation of nicotine, is there reflected in the second, third and fourth paragraphs approaches that were researched by Lorillard with regard to augmenting nicotine by adding nicotine?
A. Yes. They -- they simply talk about ways in which they might add nicotine, as I -- as I said earlier, to the cigarette blend as a means of bolstering up the nicotine. And I could go into that in some detail if you want.
Q. If you would, please.
A. Go through this.
So in the first one they point out that "Nicotine augmented cigarette samples prepared so far have been reported to be burley-like and strong, much stronger than was expected." The burley tobaccos, a smoke -- cigarette made almost entirely, let's say, out of burley, is difficult to smoke. It has intrinsically an alkaline smoke where it's just difficult to inhale, and there's a lot of irritation. It's much stronger than was expected, he said, these nicotine-augmented cigarettes. "It has been observed that the smoke pH of these cigarettes was higher than control," and "the amount of the pH increase is proportionate to the quantity of added nicotine." And this is because nicotine itself is a base-like material; it will make something more basic than -- than otherwise just simply by being -- being present. And so it can -- it can contribute, if you will, to the overall pH.
So they said "Participants in this work now feel that a satisfactory low tar smoking article might be achieved by the addition of much less nicotine than was previously thought necessary. By spraying the blend with a small amount of nicotine it might be possible to get the impact of a higher tar and nicotine cigarette. This might be achieved without actually changing the tar and nicotine figures one would get from untreated tobacco."
So the thought there is maybe you don't really have to add all that much nicotine since it has the effect of raising the pH, and with that you're going to get more of the free base character and you might even not even have to add enough that anyone would be able to make a measurement of it because it -- it wouldn't have to change the tar and nicotine figures even though you did add nicotine to it. So that was one of the things that they were thinking about.
So "The recent conception that a small amount of supplemented nicotine might lead to a satisfactory low tar cigarette seems to be supported by another study completed recently. Whether correct or incorrect, it had been the impression of those personnel working directly on this project that competitive companies were adding nicotine to their products."
So the presumption at this time by Lorillard was that, based on what they saw happening in the marketplace and based upon their view of how they can combat the problem of going to the low tar cigarette and having nicotine drop through the bottom of the threshold window, is that other people might be adding nicotine, other companies might be adding nicotine to their products. At least that was the suspicion.
"If any significant amount of nicotine were being added, it would be reasonable to expect a change in the nicotine-to-tar ratio for those brands when data accumulated over a long time span is examined." So "Accordingly, these ratios were calculated from FTC" -- that's the Federal Trade Commission way of measuring nicotine and tar -- "these ratios were calculated from FTC and other data for 19 leading brands of cigarettes, many over the period 1956 to 1976." But they did that, and "No instances could be found where the data could support the contention advanced above," that they were adding nicotine. "However, if small amounts of nicotine were added to any of these tobacco blends, this would not show up in these particular data."
So there was still in shadow of a doubt in their mind that there might be nicotine augmentation taking place elsewhere, but at levels that were going undetected by these measurement techniques. So this all speaks to this nicotine augmentation and considering it as a reality and thinking that perhaps your competitors are doing it.
Q. And in the next paragraph, then, are other approaches to adding nicotine referenced by Mr. Minnemeyer?
A. Well then he shifts gears here and takes the other approach, which is can we manipulate the form of the nicotine in order to enhance, as the -- as the term was used, its kick, and that would be done by doing something to the tobacco that would change its pH, and consequently the smoke pH, and as a consequence of that carrying more of this unprotonated or free base nicotine with it.
And they talk about spraying ammonium hydroxide. Ammonium hydroxide is what results if you take ammonia gas and bubble it into water. Get a solution of ammonium hydroxide and they spray that on some tobacco and the tobacco turned green, so they abandoned that idea. Later they tried using just ammonia gas directly on the -- on the material, and they thought that that approach might have some merit and deserve further exploration.
So it goes on in the last paragraph and says "The approach which considers altering smoke pH to deliver more free nicotine without an adverse taste effect is active but still in the formulative stages. An outline for a critical report on smoke pH has been submitted by Dr. Chen. The report may serve as a basis for a research proposal which would have the objective of determining the optimum pH for Lorillard's products, and the parameters which determine the optimum pH."
So they basically make a -- a "go" decision here to explore the avenue of pH alteration as a means of enhancing the physiologic response to nicotine in smoke delivery to a human being.
Q. And doctor, can you turn to the next page, page three of Mr. Minnemeyer's report, and specifically paragraph three. Is there referenced therein another design mechanism that can be utilized to increase pH?
A. Well one of the -- the effects that accompanied air dilution; that is, the -- either the -- particularly the ventilation where the holes are drilled into the filter of the cigarette, of course another way of achieving some air dilution is to use a very porous paper in the cigarette. It says, "It is known that air dilution increases the pH of smoke and increases the nicotine-to-tar ratio."
So the effect of ventilation seems to be twofold, one is that -- and you have to realize that when you -- when you ventilate a cigarette, you -- you -- you alter a lot of the variables that control the combustion process, because when you ventilate the cigarette you have excess air flowing in through the filter, the velocity of smoke in the rod slows down, you combust less material per puff, and it changes a number of parameters. But the outcome seems to have been that the pH of the smoke increased as did the nicotine-to-tar ratio. Well those would be two advantages to ventilation, because if the pH goes up, then the amount of the free base nicotine increases. That's something that they were looking at to try to enhance the, quote, kick of the cigarette. And if the tar -- if the nicotine-to-tar ratio increases, that's something they also would like to see happen, because, as I said, as tar and nicotine were coming down and you hold the nicotine at a level and the tar keeps coming down, and -- and that's equivalent to saying that the nicotine-to-tar ratio is going to be increasing.
Q. And at the same time, then, in 1976, does the memorandum reflect in the next paragraph whether or not Lorillard was looking at the optimum dose threshold level?
A. Well they state that "Efforts to determine how the physiological effect of nicotine might be heightened, or to determine the optimum or minimum amount of nicotine necessary to provide satisfaction has largely been centered on background reading." That would indicate that they, too, are aware that there is going to be some, shall I say, window in which nicotine delivery must -- must fall. And at least at this point in time they seem to have relied primarily on what they call background reading, some 50 papers they had read on the subject, but again points to this knowledge and understanding that such a window exists.
Q. And finally, doctor, on the last page of that memorandum, is there a reference to the type of work that had been done in the pharmacologic -- or psychopharmacologic area?
A. Well they point out that they're gathering papers on the psychopharmacologic effect of nicotine and cigarettes in man, and that this area of research has attracted attention only in recent years, and relatively little has been published.
Q. Can you now direct your attention, doctor, to Exhibit 10101, which is another Lorillard document in the next year. It's dated April 18th, 1977, submitted by Paul D. Schickendantz, with a carbon copy to Dr. Minnemeyer, who wrote the previous memorandum. Bears the accession number 994 and it's marked "CONFIDENTIAL."
Is this one of the documents you've reviewed in order to prepare yourself to testify?
A. Yes, it is.
Q. Does it form part of the basis of your opinion?
A. Yes.
Q. And is the subject matter therein consistent with the subject matter of other documents that you have reviewed in this litigation?
A. It is.
MR. CIRESI: Your Honor, we'd offer Exhibit 10101.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 10101.
BY MR. CIRESI:
Q. We have the face page up there which shows submitted by Mr. Schikendantz with a carbon copy at the bottom to Dr. Minnemeyer and to Dr. Marmor.
Can you turn to the first full page of text in the document. The subject is "Gas Phase Ammoniation of Tobacco." Now this is a year later. Is there a reference again to the issue of the lowering nicotine levels in cigarettes?
A. The very first sentence states that "The trend toward low tar cigarettes necessitates that ways be found to maintain nicotine satisfaction for the smokers of these new brands," which is tantamount to saying that as the nicotine -- as the tar levels get down, one has to pay real close attention to where the nicotine levels are and make sure that they remain above this -- this threshold for pharmacologic activity.
Q. And does Mr. Schikendantz reference the fact that one design method had already proven of value to Lorillard?
A. He pointed out, as we just discussed, that air-dilution filters, ventilated filters had helped in this way. As we saw, what it did was to raise the pH and it increased the nicotine-to-tar ratio.
Q. Now in the previous memo, Mr. -- or Dr. Minnemeyer had referenced two ways to go, one, augmentation of nicotine, two, changing the form of nicotine.
Does Mr. Schikendantz in this memo in the first paragraph make a choice as to which way to go for Lorillard?
A. Well he actually points out that the one method, air-dilution filters, had worked. He doesn't seem to mention nicotine augmentation, but he -- which was a -- which was mentioned before, but he -- he does discuss that addition of tobacco bases having a greater base strength than nicotine might be another approach. "Such a tobacco treatment might be useful if it resulted in either a greater efficiency of nicotine delivery or an increased smoke pH. An increased smoke pH would liberate nicotine free base from its salts," that is from the charged form, "to give a greater chest impact."
Q. And if we move into the next paragraph, doctor, does he give an explanation with respect to ammonia and what impact, if any, it might have with regard to free nicotine?
A. Well he's talking about ammonia, to begin with, as imparting an off-taste to cigarettes, and he says the off-taste results from either too high a delivery of the unprotonated or free nicotine, the creation of products with off-t