DIRECT EXAMINATION - DR. CHANNING ROBERTSON
FEBRUARY 5, 1998 STATE OF MINNESOTA
DISTRICT COURT COUNTY OF RAMSEY
SECOND JUDICIAL DISTRICT
File No. C1-94-8565
The State of Minnesota, by Hubert H. Humphrey, III, its attorney general, and Blue Cross and Blue Shield of Minnesota,
Plaintiffs,
vs.
Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, B.A.T. Industries P.L.C., Lorillard Tobacco Company, The American Tobacco Company, Liggett Group, Inc., The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc.,
Defendants.
TRANSCRIPT OF PROCEEDINGS
VOLUME 13, PAGES 2370 - 2572
FEBRUARY 5, 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.") BY MR. CIRESI:
Q. Good morning, doctor.
A. Good morning.
Q. Doctor, can you turn your attention, please, to Exhibit 11907 in volume one. This is a Liggett document dated July 16th, 1976, authored by Mr. V. Norman from the research department on the subject of modification of smoke pH, and directed to Mr. R. L. Kersey, K-e-r-s-e-y, director of research.
Is this one of the documents that you reviewed in this litigation?
A. Yes.
Q. And does it form part of the basis of your opinion?
A. It does.
Q. And with respect to the subject matter referenced therein, is it consistent with other of the documents that you've reviewed in this litigation?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 11907.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 11907. BY MR. CIRESI:
Q. We have up first page on, which shows that it's directed to Mr. Kersey, and Mr. Norman's name is there. It's also on the last page. And the date is in the upper right-hand corner, 7/16/76, and the title "Modification of Smoke pH."
In the first paragraph, doctor, is there a reference therein by Mr. Norman with respect to the effect of pH on the rapidity with which nicotine transfers into the smoker's blood?
A. Yes, there is.
Q. And what is reported by Liggett's Mr. Norman in 1976?
A. Indicates "The rapidity with which the nicotine transfers into the smoker's bloodstream is strongly influenced by whether it is in the salt form," which is the charged form or ionized form, "or a free base," which is the uncharged or unionized form, "the latter being absorbed approximately five times as fast."
Q. And at the end of that paragraph the statement is made that "Small adjustments of smoke pH result in large shifts in the proportion of free nicotine." Do you see that?
A. Yes.
Q. Can you describe why that is.
A. Well as we saw yesterday, the -- the form in which nicotine resides, either the uncharged or the charged form, depends on -- on pH, and in fact the relative amounts depend on pH, and we've seen that the pH scale goes from zero to 14, with pH seven being in the middle and being neutral, but each step on the pH scale represents a factor of ten difference in the hydrogen ion concentration or the relative acidity or basicity in terms of actual numbers of ions that are contributing to it. It's very much like the Richter Scale for earthquakes where if you have a -- have an earthquake of magnitude three versus an earthquake of magnitude four, well the one at magnitude four releases ten times more energy than the one at magnitude three. And so when you're in the range of pH where you're having this effect on the amount of free base versus the amount of charged material, small changes in the pH which are represented -- can be represented by substantial changes in the shift in the equilibrium. So you -- you have to be mindful of that and not think, well, if the pH changes from 5.8 to 6.2, that's not going to do very much, it doesn't sound like a very big change. But in fact it can have substantial changes on the relative amounts of those two compounds.
And it's right in the range of pH, high fives and into six and seven, that this curve starts to become very steep. Things are changing very rapidly in response to changes or even small changes in the pH.
Q. And doctor, in the second paragraph and the third paragraph, does Mr. Norman address the issue that you referenced yesterday with regard to the recipe nature of the business on what we saw in Exhibit 10110, the Lorillard document?
A. Yes, he does.
Q. Can you describe what's referenced there by Mr. Norman.
A. Well he states it pretty clearly. He says that "Choosing an optimum smoke pH is complicated by other basic materials in smoke" -- remember, smoke contains thousands and thousands if not tens of thousands of other chemicals -- "and some of these other chemicals may also undergo the same salt to free base transition over an overlapping pH range." So there's other equilibrium between other kinds of molecules that are present in the smoke. Now "UnLike nicotine, where the transition causes no significant change in the acute flavor impression" -- that is, he's saying that the relative amounts of free base to protonated seem not to have strong influences on -- on taste, says, "some of the other free basic materials impart significant cigar-like and harsh taste notes to smoke. The effect of an increased proportion of free nicotine per se, would not be expected to be acutely perceptible," that would be in terms of changing taste, "but it would show up as a sensation of satiation after having smoked a number of cigarettes," again, pointing to the effect that free base has in terms of its rapidity of transport and its rate of getting to the neuroreceptors.
So the affirmation here is that when you're dealing with such a complex chemistry, one has to take many, many of the variables that go into the design of a cigarette into account. These have to be brought into balance in order to develop a final acceptable product.
Q. And in the paragraph starting at the bottom, does Mr. Norman address that issue?
A. He says, "Thus, because of taste effects of other bases" -- these other components in smoke -- "one is not completely at liberty to choose a pH that is optimum," just for nicotine, "and a compromise has to be reached as to how much free nicotine is adequate and how much of the basic taste complex can be tolerated." So he's talking about a compromise here. And designs are always full of compromises; can't always have what you want without causing a problem somewhere else, and so you have to balance these -- weigh these against one another and -- and come to a proper balance.
Q. And doctor, then in the first full paragraph, does Mr. Norman address some of the design parameters that may or may not affect pH?
A. Well he points out that "Smoke pH can be adjusted by," for instance, "changing the tobacco blend," that is, adding more burley would tend to raise the smoke pH, or putting additives in the blend or additives even in the filter. So there's a number of tools available to the designer to reach as appropriate and as optimal a level of delivery as one can and still have the product be accepted.
Q. Doctor, in the review of the documents that you made, did your review indicate whether or not the defendants researched whether or not the changing of pH would enhance the transfer of nicotine from the tobacco to the smoke?
A. Yes, they did. They -- they investigated the effect that adding ammonia compounds to tobacco and tobacco constituents that are in a cigarette would have on causing a more favorable release of nicotine from the solid material into the -- into the smoke during combustion, pyrolysis, and distillation process.
Q. Why is nicotine transfer important from the standpoint of cigarette design?
A. Well you have a certain amount of nicotine in a -- in the reservoir, and you want to transfer a certain fraction of that into the smoke in order to be able to deliver the appropriate amount to the recipient, particularly to ensure that you're following this dose window of pharmacologic activity, and so if you're delivering, for instance, ten percent or 15 percent of the available nicotine into the smoke, a few-percent increase in that could have a dramatic effect in terms of the increased percentage of nicotine delivery, if in fact that was one of your goals, to -- to extract a higher percentage of the nicotine available in the reservoir to the recipient.
And again, that would be done in the context of ensuring that you land in this dose-range window that we've been talking about and not drop below it.
Q. With regard to the nicotine transfer, doctor, can you direct your attention to Exhibit 10182, which is a Lorillard document dated January 12th, 1983 -- 1973, and that is also in volume one. Exhibit 10182.
This is a document on Lorillard letterhead directed to Mr. C. L. Tucker, director of product development, from Dr. A. M. Ihrig, senior research chemist, subject, "THE CHLOROFORM EXTRACT."
Is this one of the documents that you reviewed with respect to the testimony you're giving in this case?
A. Yes, it is.
Q. Is it one of the documents that forms part of the basis of your opinion?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 10182.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 10182. BY MR. CIRESI:
Q. Doctor, in the second paragraph, does Dr. Ihrig, the senior research chemist at Lorillard, address the issue of nicotine transfer?
A. Yes, he does. He was --
Apparently they were doing some experiments adding a chloroform extract to tobacco. The free base form of nicotine will partition into chloroform, which is an organic solvent, so this would be, you know, simply adding nicotine back into the -- back into the tobacco. And he points out that "An investigation at the Lorillard Research Center found that adding nicotine to burley casing" -- so here is a situation where nicotine is being put into the ingredients for the burley casing, and then normally it's sprayed on -- "did not increase the nicotine delivery beyond the predicted amount." Goes on to say that "Since only ten percent of the nicotine is transferred to the mainstream smoke," and in this case, "any increase in the efficiency of nicotine transfer would lead to a dramatic change in the nicotine level and provide our company with another means for controlling nicotine delivery.
So these experiments at enhancing nicotine transfer was directly aimed at nicotine control and the control of nicotine delivery.
Q. Doctor, can you direct your attention now to Exhibit 13263, which would be in volume two of the exhibits.
This is a B&W document dated October 28th, 1985, referring to a presentation that was made. Is this one of the documents that you reviewed, doctor?
A. Yes, it is.
Q. Does it form part of the basis of your opinion in this case?
A. Yes.
Q. And does it address issues that were addressed in the documents of the other defendants in this case?
A. It does.
MR. CIRESI: Your Honor, we'd offer Exhibit 13263.
MR. BERNICK: No objection.
THE COURT: Court will receive 13263. BY MR. CIRESI:
Q. The B&W document shows on the front it's a BATUS presentation, October 28th, 1985, marked "CONFIDENTIAL." Then if you'd turn to the first page, is there stated therein the subject matter of the BATUS presentation?
A. Well it deals with five-year plans and objectives, and the bullet headings are corporate goals and strategies, a technology review, a five-year engineering plan for the company, and long range R&D.
Q. And doctor, could you turn to the page that bears the Bates numbers, last three, 012, and is there reflected therein 1986 plans regarding key smoke quality developments?
A. Yes.
Q. And can you describe what's being depicted on that page, please.
A. Well in the center are the words "SUPERIOR PRODUCT QUALITY," and around it with arrows pointing to that would be the, in my mind, the issues that these folks felt were important in determining superior product quality, and this would include reconstituted tobacco, which we've talked about yesterday, the -- the leaf or the materials, the raw materials that would be brought in, tobacco plants that would be chosen, ammonia, which would be used in these ammoniation processes to control pH, process improvements in the plants, analytical, meaning new methods to assay the final product to help them ensure appropriate quality control and quality -- quality assurrance on the items that they're interested in measuring, both physical and chemical presumably, changes in the cigarette design, and as we saw that would include such things as the papers that are used, the filters, the degree of ventilation, how firmly or how much tobacco is put in and what -- what proportions of the different tobacco materials, and reverse engineering, which refers to taking competitors' products and disassembling them and analyzing them in any way you -- you can to try and learn what it is they're doing that you might not be doing that could be helpful to improving your own product.
Q. Doctor, with regard to reverse engineering, what if anything did you observe regarding that undertaking by other defendants based on your review of the documents?
A. Well it's pretty clear everybody was reverse engineering everybody else. They would always be looking -- each -- each company would be looking at their competitors' materials and assaying them and trying to understand what the ingredients were, the kinds of tobaccos, how much reconstituted material, what kind of reconstituted material, what kind of paper, what kind of filter and -- and so forth, always making comparisons of their products with products of the competitors.
And the last is casing and flavor, and as we discussed yesterday, this is where additors can be placed on the tobacco material to achieve part of this overall balance in the design that we've been talking about in terms of sensory perception, taste, aroma and -- and the like.
Q. And can you turn to the next page, then, which is 013, and are the major programs for nineteen ninety -- 1986 set forth therein?
A. Well these three programs, leaf, reconstituted and ammonia, were on the -- were on the previous page, and so this is just a break-out of some of the issues under each of those categories that they were interested in -- in pursuing.
Q. And then if you turn to the next page, which is 014, can you describe what is being depicted on that page?
A. Well this is a chart that has at its -- essentially at its peak is ammonia, and if you'll recall on the previous page ammonia was one of the important issues to them with regard to superior-quality product. And if you go to the right, it goes -- it points to something called DAP, which is diammonium phosphate, which is one of the ammonium compounds that the manufacturers use in their ammoniation. And then that comes down and splits to the left and to the right. And to the left it goes frees pectin, combines with nicotine, as in the Philip Morris-type reconstituted material -- this would be the slurry process or the band cast type of material, that then is, of course, combusted at some point in the cigarette. And the outcome of that having added ammonia in the form of DAP results in improved nicotine transfer. So ammonia treatment affects the nicotine transfer, the release of nicotine from the material, and improves it.
And to the right, where it says "'NEW' INORGANICS," what they're referring to there is during the combustion process -- DAP, by the way, is an inorganic material -- you liberate ammonia, diammonium phosphate has ammonia in it, as the name would imply, and when you liberate the ammonia, it goes to the left. So the addition of DAP to liberate ammonia, and you go to the left, says alter smoke pH and points out that Philip Morris has higher smoke pH, and then it goes down and shows reduced irritation, indicating that one of the outcomes of having added DAP, when you finally get to the bottom, is expected to be reduced irritation of some sort.
If you go to the right where it says "REACTS WITH VOLATILES (FAST CHEMISTRY)," and again "REDUCED IRRITATION," seems to be referring to aldehyde-type materials or irritant carbonyls which are known to cause irritation, and the inference here is that such reactions attenuate the effect that those carbonyls have, and therefore the outcome is reduced irritation. So those are the positive things that flow out of having ammoniated the material.
But if you go to the left, at the top again, you'll see that the arrow points to ammonia and sugar, and it's known that when you combust sugars in the presence of ammonia compounds, that the decomposition products that result from having thermally decomposed the sugars is that these pyrosynthesis reactions will occur, which is the recombination of some of the sugar or sugar fragments with ammonia and the creation of new -- new molecules, molecules that weren't in the cigarette before it was burned. And so this is put into the category of reaction complexes, referring to the number of new substances, e.g., Philip Morris compound, and then in writing it says "Groups of Flavor Compounds," and it talks about methyl pyrazine. So these are the positive aspects of reacting ammonia with the tobacco in that in the combustion process some of the ammonia will be reacting with the sugars, and if things work out, you'll end up with some of these pyrosynthesis compounds that actually could enhance or make the cigarette more flavorful, and so they talk about better smoke flavor and increased body.
Q. Doctor, could you turn to page 25 of this document. And does this page address the design- parameter implications on the pharmacology of the cigarette?
A. Yes. This -- this cartoon is labeled "CHEMOSENSORY RESEARCH." It quite -- quite effectively shows what's happening in terms of relating the -- this drug-delivery device to the extended response, and that's a pharmacologic response, and what are the issues that are key to making this work appropriately. Under "PRODUCT" -- the product, of course, as we saw yesterday, was the drug-delivery device as shown here, the cigarette, and issues that are important are, of course, the design, all the design variables that can be manipulated in order to ensure that it's delivering the appropriate level of nicotine, that it, the nicotine delivery, remains within this dose-range window, and then combustion, because combustion is a very complex process, and trying to understand better the nature of the combustion reaction in the products therefore would presumably give one a better handle on design issues in terms of manipulating the variables that are important to design. And then when you have the delivery -- and this is, of course, essentially the drug coming out of the portal, and it's in the form of an aerosol, so being able to understand better issues of aerosol dynamics and aerosol chemistry would be something that they would want to do. And they point out it's a dynamic chemistry. We saw yesterday that these -- these dynamics are happening on the millisecond time scale, they're -- they're over in a flash of an eye, very, very fast, so that as a result they're difficult to study, things are happening so fast. But it is a dynamic chemistry, and the better one could understand that chemistry, presumably the better off one would be in making appropriate design decisions.
And then finally, what's the response? Well the response that will be elicited, the pharmacologic response, which is, in fact, the -- the intention of this device, will be related to the smoke chemistry, which is very complex. Obviously you pull out -- out of smoke chemistry, which refers to thousands and thousands and thousands of compounds, you pull out the one compound which is key, nicotine, study that, and then the receptors where nicotine binds molecularly to receptors in the human body to elicit its pharmacologic response.
So they talk about joint programs, B&W and Hamburg, Southampton, talk about aerosol properties and the subject response, which I've -- which I've covered, and then the smoke chemistry and smoke. And you'll notice pH is pulled out as a specific issue. And then fast smoke chemistry methods, it refers to this dynamic chemistry, trying to come up with means of -- of tracking maybe reactions or product formation on a very rapid time scale to try to understand these -- these processes.
So this gives us a nice overview of basically how the industry views its product, its drug-delivery system from design to effect, from design to the recipient, to the receptor, to the pharmacologic response.
Q. And doctor, could you direct your attention, then, to Exhibit 13576, which is a Brown & Williamson document dated September 20th, 1979.
Do you -- I'm sorry.
A. I have it.
Q. Exhibit 13576. Is this one of the documents you reviewed in this case?
A. Yes, it is.
Q. Does it form part of the basis of your opinion?
A. Yes.
Q. And does it address issues that were addressed in the documents of other defendants in this case?
A. It does.
MR. CIRESI: Your Honor, we'd offer Exhibit 13576.
MR. BERNICK: No objection.
THE COURT: Court will receive 13576. BY MR. CIRESI:
Q. The title of this document's a little difficult to make out, it's "TAR/NICOTINE RATIOS AND NICOTINE TRANSFER EFFICIENCIES OF B&W AND COMPETITION BRANDS." And there's a stamp that it's a confidential document.
Could you direct your attention, doctor, to the third page of the document which bears Bates number 180.
A. Yes.
Q. And the title is "TAR/NICOTINE RATIOS AND NICOTINE TRANSFER EFFICIENCIES OF B&W AND COMPETITION BRANDS." Is there reported here an analysis by Brown & Williamson with respect to tar/nicotine ratios and nicotine transfer efficiency by manufacturers?
A. Yes. This is shown in Table 1 on that page.
Q. Toward the bottom?
A. Yes.
Q. And if you go over to the next page, with regard to those tar/nicotine ratios and nicotine transfer efficiencies, what is reported in the document?
A. Well the tar-to-nicotine ratios are ranked in order at the top with Philip Morris having the highest tar-to-nicotine ratio and American having the lowest.
Q. So if one were to read that, is Philip Morris greater than B&W, greater than RJR?
A. Greater than -- which is approximately the same as L&M, greater than Lorillard, greater than American.
Q. And then what's the next statement?
A. The next ranking is the nicotine transfer efficiency, and in that order it's Philip Morris has the highest nicotine transfer efficiency, followed by RJR, with Brown & Williamson and L&M approximately the same, greater than Lorillard, and all of them greater than American, American having the lowest nicotine transfer efficiency.
Q. And what is reported, then, in the next paragraph?
A. Well they make the point that "Perhaps not coincidentally" -- that is, perhaps this is actually the result of conscious decisions that had been made in formulation of cigarettes -- "Philip Morris and R. J. Reynolds have the highest average nicotine transfer efficiency and they have the highest USA sales." And they say that "The very high nicotine transfer efficiency for Philip Morris brands is consistent with the more alkaline" -- that means the higher pH -- "the higher ammonia content" -- that refers to the higher ammonia content of the material in the tobacco --
Q. And in Table 2 is there a reporting of the total alkaloid levels in nicotine deliveries of competitors' brands and B&W's?
A. Well in Table 2 is -- is the -- the total alkaloids by percent in the tobacco material, that's in the cigarette, ranging from about 1.8 to about 2.1, a little higher than that percent, so that gives you the spread in terms of percent alkaloids, with nicotine being the primary alkaloid, then, by weight in the tobacco. And then the nicotine delivery that -- that follows in terms of milligrams of nicotine delivered per cigarette, which varies from a low of .75 milligrams per cigarette for L&M to a high of 1.07 milligrams per cigarette for R. J. Reynolds.
Q. All right, doctor. Could you turn, please, then, to Exhibit 10874. It should be in volume one.
Doctor, we've talked about design parameters of ventilation, filtration, pH, nicotine transfer efficiency. Are there other design parameters to control nicotine transfer?
A. Oh yes, there's -- as shown here in the first --
Q. Ah, can't refer to the document yet, it's not --
I just want to know if there are others.
A. Oh, sorry.
Yeah, there are others.
Q. Okay. Now directing your attention to Exhibit 10874, that's one of the documents that you reviewed in this litigation?
A. Yes.
Q. It's a B.A.T -- excuse me, a B&W document dated April of 1984. And does it form part of the basis of your opinion in this case?
A. It does.
Q. And does it address issues that were addressed in others of the defendants' documents that you reviewed?
A. Yes.
MR. CIRESI: Your Honor, we'd offer Exhibit 10874.
MR. BERNICK: Your Honor, I think this actually is comprised of two documents that are stapled together. They are in sequential Bates number order, but they are, I think, in fact two different documents. One would begin at the Bates number ending four and the next would begin with the Bates number ending nine. We have no objection to --
I don't know whether Mr. Ciresi wants to introduce both, but we have no objection, certainly, to the first one.
THE COURT: Can we call it A and B?
MR. CIRESI: Excuse me, Your Honor?
THE COURT: Can we call it A and B?
MR. CIRESI: We could. It's one document. That's the way it was produced, Judge. That's the only reason we have it this way. We're only going to be referring to the first page.
THE COURT: Okay. Well if there's no objection that they can use it to cross-examine, why don't we refer to it as 10874A and 10874B.
MR. BERNICK: I have no objection to that, Your Honor.
THE COURT: All right. Let's do that just so we can keep it together.
MR. CIRESI: That's fine, Your Honor.
THE COURT: Okay.
MR. CIRESI: Then 10874B would commence on the last three Bates numbers 009.
MR. BERNICK: Correct.
THE COURT: All right. They'll be received then. BY MR. CIRESI:
Q. Doctor, what are some of the other design parameters influencing nicotine transfer efficiency?
A. Well as we've seen, there's pH. There is also paper permeability of the paper wrap around the tobacco rod. The extent of ventilation. The pressure drops through both the tobacco rod and the filter. Burn rates. And other things would include the total alkaloid content of the cigarette and the -- oh, the moisture content and the filter efficiency, as an example. So there are many, many variables that go into establishing the nicotine transfer efficiency.
Q. Were those other design parameters addressed in the documents of the other defendants?
A. Yes.
Q. Can you direct your attention, please, doctor, to Exhibit 11973. Is this another of the documents that you reviewed in this case?
A. Yes, it is.
Q. It's a B.A.T. Company Ltd. document?
A. Yes.
Q. And does it form part of the basis for your opinion in this case?
A. Yes.
Q. And does it address issues that were addressed in others of the defendants' documents?
A. Yes.
MR. CIRESI: Your Honor, we'd offer Exhibit 11973.
MR. BERNICK: No objection.
THE COURT: Court will receive 11973. BY MR. CIRESI:
Q. Now does this document, doctor, encompass the physical design properties that you've discussed in the course of your testimony?
A. Yes, it encompasses many of them.
Q. And is there also a portion in this document commencing at Bates 755 that deals with cigarette smoke?
A. Yes.
Q. Does that section deal with an overview of the combustion process that takes place in the cigarette?
A. Yes. It provides a summary.
Q. Can you direct your attention, please, doctor, to page 755 first. I guess we're on "CIGARETTE SMOKE." And if you could now go to page 760, seven six zero --
Actually, doctor, let me -- let me ask you to back up first. Could you go back to page 756, and in the introduction, what is being described in the introduction of this portion of the document?
A. Well it begins with a statement that "Cigarette smoke has been described as one of the world's most complicated chemical systems. This is because the smoke is derived from burning a natural substance - the tobacco - containing hundreds of chemical constituents." And then points out that, "On burning, the tobacco is exposed to temperatures ranging from ambient," which would be room temperature, "to 950 degrees Centigrade in the presence of varying concentrations of oxygen; resulting in thousands of chemical products being formed via several distinct routes. The quantities of the chemical products formed are dependent on the nature of the tobaccos used as well as on a large variety of cigarette parameters like paper permeability which affect the combustion process."
So this goes to reemphasize the massive complexity that is present in the burning cigarette and how difficult it is to get your arms around truly all that is going on piece by piece, and in fact it's probably not possible.
Q. Can you direct your attention, then, to page 760, and I'd like to specifically direct your attention to this section that's called "GENERATION OF SMOKE," to the middle of the page which addresses -- addresses the states in which chemicals exist in smoke. And you can --
Would you please describe what's being reported there.
A. Well they point out that "Thus, smoke," as we talked about yesterday, "consists of a large number of very small particles of liquid in a mixture of gas and vapor." Now they point out "The distinction between gas and vapor is a -- is a fine one," and I -- I just might add that generally that distinction is the gases are non-condensable, like oxygen and argon and carbon dioxide and carbon monoxide, and the vapors are generally those that are -- are condensable that can exchange back and forth between the particle and the gas or vapor phase. So "The distinction between gas and vapor is a fine one and for most practical purposes it is best to assume that a smoke aerosol has only two phases" - the "particulate phase," the -- the drops, "and gas/vapor." So "Broadly speaking, therefore, we have three states in which chemicals can exist in smoke." There are those that are wholly in the -- in the liquid droplets, and these would be the -- the non-volatile components of what we refer to as -- as tar, it's the -- it's the non-volatile components of the combustion process. They're generally high-molecular-weight materials, condensation, polymers that form in the combustion process that just simply don't evaporate or distill, then there are those that are wholly in the -- in the gas, things like -- well I'll say things like oxygen and CO and CO2, although those can partition into the -- into the particle phase somewhat, and then those in both phases. And what's really being referred to there are the distillable compounds such as nicotine, as we saw can exist in the particle phase in both the unbound and the bound forms, the free base form and in the ionized form, or it can exist in the vapor phase, but only in the free base form as we saw yesterday.
Q. Doctor, could you then direct your attention to page 763, which deals with smoke measurement, and at the top of the page we see a depiction, and can you tell us what's being represented there?
A. Well it's headed "SMOKE -- SMOKE MEASUREMENT," and what's shown in the cartoon is something called a Cambridge filter. And on the left it shows a depiction of smoke or the smoke aerosol, which would be the little liquid droplets suspended in the gas/vapor, and what they're trying to show is that if this aerosol is passed through this Cambridge filter, all the particles, all the little droplets remain behind on the filter and just the vapor and gas pass through.
The Cambridge filter is a glass fiber filter that has a very, very high retention capacity for particles in the size range of smoke, and it's used in analytical testing methods to determine the amount of particulate matter in smoke. And in fact in the FTC, the Food and -- Federal Trade Commission test, it's used to establish the level of tar that ultimately is -- is used in the advertising of cigarettes where it's required to be -- required to be reported.
So the idea is that you pass the smoke through this filter, the particles adhere to it, you then take the filter and you process it. So that you can do -- in the FTC method you do three things, you determine how much water is in it, you determine how much nicotine is in it, and what's left you call tar. So when you see tar and nicotine reported in an advertisement or on a cigarette carton or on a billboard, it comes from this type of a -- a measurement.
The vapor or gas is generally collected in a -- in a bag, and anything that is in that gas phase can also be measured, if you -- if you like. One of the things that is typically measured is the carbon monoxide levels in -- in certain testing methods. And if you turn to the top of the next page --
Q. Doctor, before you go there, let -- let me ask one thing. At the bottom of the cartoon it says one thousand million particles. What's being referred to there?
A. Well it's -- it's a -- an estimate of the number of particles per cc that are present in cigarette smoke that are -- that is drawn through a cigarette and into the oral cavity. So one thousand million particles is one billion particles, and a cubic centimeter is about -- maybe three-eighths of an inch on a side, something like that, if you want to get a picture of what a cubic centimeter looks like. It's pretty small. So in that there would be, according to this estimate, about one -- one billion of these particles.
Typically when you inhale smoke you might take in anywhere from -- you can take in as much as you possibly can, I suppose, but, you know, typical levels might be 35 to 50, 60 cc's, so you would be approaching ten billion particles in a -- in a puff. And those ten billion particles, then, are what the body has to deal with both in the mouth and in the upper respiratory system during the inhalation when it's taken into the lungs.
Q. And there's a reference there to particle size, .1 to 1.0 microns. I believe earlier in your testimony you stated that eight to ten microns would be one-tenth of the diameter of a human hair; is that correct?
A. Eight to ten microns?
Q. Yes.
A. Yeah, roughly. These particle sizes, .1 to one microns, there's -- of course in -- in this aerosol there's a range of particle sizes. Typical cigarette smoke will have a particle size which is generally characterized to be nominally in the -- somewhere in the .2 to .3 micron range, and of course there's a few particles that are larger and there -- there are some that are smaller. They're not all the same size.
Perhaps another way of saying it is that the -- the red cells that carry the oxygen and the carbon dioxide in our blood are about eight microns across, and so these -- these particles are actually much, much smaller than even a red blood cell is, by a factor of 50 or so. So they're very, very small. And then each of them, as it says, can contain many, many chemical substances. And this number of ten thousand substances is -- is reported at times, some numbers less, some numbers much higher. I don't think anyone actually knows how many chemicals are in smoke particles.
Q. Doctor, you were about, then, to move over to the next page on the FTC measurement.
A. Well I just wanted to point out that one has to be a little circumspect when you're reporting tar numbers because sometimes people will report all the material that comes off of the Cambridge filter, sometimes all that material but without the nicotine, and sometimes all that material without the nicotine and without the water. And usually most of the time the smoke figures were reported as PMWNF, which is Particle Matter, Water and Nicotine Free, which means the material that was on the filter minus the water and minus the nicotine.
Q. And doctor, could you then direct your attention to page 765, which is entitled "To put the composition of smoke into context." Can you explain what is being reported therein?
A. Well there's a graph that shows the whole smoke composition, and this is on a -- on a weight basis. So if you were to take smoke and weigh the various constituents in smoke, this pie chart tells you the various contributors to the weight that you measure.
You can see that the bulk of the weight is nitrogen and oxygen, which of course are the two primary molecular constituents of air. And then you'll see, starting in the right-hand side of the pie, hydrogen, argon and methane. Argon is a natural constituent in air. And then you have hydrogen and methane, which would be products of the combustion reactions. Then you have CO, which is carbon monoxide, which would be also a product of the combustion reaction, but an incomplete combustion. If it had been complete, you would have carbon dioxide. And then four and a half percent of total particulate matter, so this would refer to the tar material. So about five percent of smoke by weight, roughly, is the tar material.
I'm at the age where my eyes are not allowing me to read this small print, but I think it looks like ten percent -- does that say "REST?" I suppose if no one can read it, it's not relevant.
Q. I think it says "REST."
A. I think it's just what's left over, and that's one percent. And then it looks like one percent water. And then about 13 and a half percent vapor phase compounds, of which it looks like there's a -- a number in there for CO2, which I can't quite make out. But some of the vapor phase compounds will be CO2, which is another product of combustion. And it will be also those compounds which pass through the Cambridge filter that happen to be in the gas or vapor phase at the time the smoke went through the filter. This is what's generally collected in the bag along with the nitrogen and the oxygen and the nitrogen, argon and methane. So this just gives you an idea of the relative amounts by weight of the various constituents that one finds in smoke.
But we have to remember that in that little bit of the pie that says "TPM," there's tens of thousands of chemicals lurking there. This is just how much they weigh, it's not what they are or what they do.
Q. Doctor, can you then direct your attention to the next page, and I'd like to specifically direct your attention to the top where it says "The most common smoking regime is." Can you tell us what that is?
A. Well there was a -- a time, I believe, in the late -- if my memory serves me -- in the late 1960s, where the -- the industry was required to report tar and nicotine in their products. Now there was a time prior to that, as I understand, where they reported tar and nicotine. It was in a -- in a -- in a period which I think has been referred to as the -- the Tar Derby where people were reporting and the companies were reporting values, but without a great deal of consistency. No one was quite sure how these values were reported, what they were measured on, and if they were truly fair comparisons of one company's brands compared to another. Followed by another period when there was no reporting, and then back to this period in the late '60s where the Federal Trade Commission developed a -- a test for measuring tar and nicotine. It's called the FTC method. And this involves collecting the particles on the Cambridge filter and measuring the amount of nicotine and water and then, by weight, subtracting out the rest of the material that's collected and calling that tar.
So in order to make this measurement they use a machine, a smoking machine which -- into which cigarettes can be placed, and then these cigarettes are smoked by the machine. And the smoke is passed through the Cambridge filter, which is analyzed when the smoking machine is finished under the smoking regimen that's been established. And that has been used for -- for many, many, many years.
The volume of smoke taken on each puff is 35 cc's, and the machine puffs for two seconds, so it collects 35 cc's over a period of two seconds, and then when 58 seconds have passed so that the total time now adds up to a minute, it takes another puff again of 35 cc's over two seconds, and it puffs the cigarette -- it smokes the cigarette until the cigarette reaches a predetermined length. And I believe on a non-filtered cigarette it's 23 millimeters remaining and then the machine stops; and on filter cigarettes I believe it's the filter or the overwrap, the tipping paper plus three millimeters, it's smoked down to that level.
Now as I understand it, at least in some instances, the way they do that is they -- they tie a little thread around the cigarette, and when the fire comes -- reaches this little thread and -- and the thread either burns or breaks or whatever it does, that trips a microswitch and it stops the machine from smoking that cigarette any -- any further. So the idea is to try to smoke these cigarettes in a -- in a rather uniform manner across the board to try to take out variations in such things as puff frequency and puff duration and puff volume.
And so the FTC would make these measurements. They're -- they're made frequently. There's a -- there's a sampling collection where cigarettes are purchased -- collected from around the country, certain number, and then those are taken to a testing laboratory. And a certain number of those that are purchased are removed from the carton and a certain number from a pack, there's a -- there's a protocol that's followed, until finally you -- you -- you feel you have a good random sample of the particular cigarette brand, and then those are -- those are smoked. And the numbers that are reported on the packages for the tar and nicotine are the result of this kind of -- of testing. And as I understand it, several hundred cigarettes are -- are smoked in order to get appropriate statistics to report these numbers.
Q. Doctor, can you direct your attention, then, to page 768, and is there reported therein comments regarding nicotine delivery?
A. Yes. There's a section entitled "NICOTINE DELIVERY," Section 4.2.
Q. And what's reported therein, sir?
A. Well again, as we've discussed, nicotine is an alkaline substance. When it's added to water it causes the pH to rise. And it exists in two forms -- we've seen that now -- the bound or the salt form, and the free form. However, only in the free form is it relatively volatile.
In tobacco it is present mainly in a salt form; that is, in the tobacco material itself. So when a cigarette is smoked, nicotine is released momentarily in the free form so that it can enter the vapor phase, and in this form nicotine is more readily absorbed through the body tissue, as we saw yesterday. Hence, it is the free nicotine which is associated with impact; that is, the higher the free nicotine, the higher the impact.
Q. And doctor, if you go to page 769, is there reported therein the effect of sugars as they burn in the combustion process?
A. I think I've said before when the sugars burn, they tend to give rise to acidic materials, to acids, and of course an acid will tend to cause the pH to -- to drop. And so this table of percent sugar in the leaf ranging from zero to 20 percent is correlated against smoke pH, and you can see as the percent of sugar in the leaf rises, the smoke pH drops. And this is why the various kinds of tobaccos that go into the -- the blend help to establish what the pH of smoke ultimately will be, because we saw yesterday that the burley tobaccos tend to be more alkaline or tend to move the smoke to a higher pH, and the flue-cured tobaccos, the Virginia or the bright, tend to move the pH of the smoke in the opposite direction.
Q. And doctor, finally, can you direct your attention to page 771, which is entitled "5.2 PRODUCT VARIABILITY." Is there set forth therein and on the succeeding pages the various factors that you've discussed which affect product variability?
A. Yes. A number of those factors are -- are broken out, starting with tobacco grades, which we've talked about.
Q. Is blending efficiency another one?
A. And then on the next page the blending efficiency. The paper permeability, paper in which the cigarette is wrapped. The cigarette weight. This is a -- a -- basically a quality control/ quality assurrance type of parameter. And the filter pressure drop, which has to do with the amount of effort it takes to puff. If you have a very high pressure drop, it makes it more difficult to puff; if you have a lower pressure drop, it's -- it's easier. And then ventilation, which we talked about. So those are certainly some of the variables that we've been discussing over the last few days.
Q. Now doctor, based on your investigation in this case, your education, experience and expertise, your review of all the defendants' documents, do you have an opinion to a reasonable degree of scientific certainty whether the defendants recognized the need for establishing a nicotine dose range to be delivered to the human body?
A. Yes, I do.
Q. And did they do so, sir?
A. They did.
Q. And based upon your education, experience, expertise, and your review of the defendants' documents and investigation in this case, do you have an opinion to a reasonable degree of scientific certainty whether the defendants controlled, through design parameters, the nicotine dose range delivered to the human body?
A. They did.
Q. And doctor, based on your education, your experience, your expertise, and based upon your review of the defendants' documents and your investigation in this case, do you have an opinion to a reasonable degree of scientific certainty whether the defendants controlled nicotine by the various design parameters in order to ensure the pharmacological efficacy of the cigarette as an engineered drug-delivery device?
A. They did so.
MR. CIRESI: Thank you, doctor. I have no further questions.
THE COURT: We'll take a short recess.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. BERNICK: Thank you, Your Honor. Good morning.
(Collective "Good morning.")
CROSS-EXAMINATION - DR. CHANNING ROBERTSON CROSS-EXAMINATION BY MR. BERNICK:
Q. Good morning, Dr. Robertson. I think you know from a little conversation we had before you took the stand, my name is David Bernick and I represent Brown & Williamson and a couple of related companies, and I'll be asking you the questions this morning, probably -- at least a little bit into this afternoon.
I want to begin with your background and just trace a little bit of the sequence of how you became involved in this case and what you've done since. And I want to maybe draw a line here for January of '97 and ask you whether, as I understand it this is true, that you became involved in this litigation in December of 1996; is that correct?
A. Yes.
Q. Okay. If we go prior to 12-96, it's true, is it not, that none of the many publications that appear as attachments to your CV --
I think you mentioned that there were over 130 of them; is that right?
A. Approximately.
Q. Okay. Is it true that none of those publications are publications about tobacco?
A. That's correct.
Q. Is it true that prior to December of nineteen seventy -- 1996, when you first became involved in this case, that you had not attended any seminars about tobacco research? Is that true?
A. No seminars explicitly dedicated just to tobacco research, no.
Q. Okay. Is it true that prior to December of 1996 you had never held yourself out to your peers as being an expert in the field of tobacco research?
A. No, I hadn't done that.
Q. Is it true that prior to December of 1996 you had never been retained to act as an expert regarding tobacco research?
A. I had not.
Q. Is it true that the reason that you were contacted by counsel for the state to act as a witness in this case is not that you were known as an expert in tobacco research, but that you were known to Mr. Ciresi by reason of your prior work for him in prior litigation?
A. Well I can't speak to the reason that Mr. Ciresi inquired as to whether or not I would get engaged in this work. He called me up and we had a conversation, and he came and visited me and we discussed it. And he knew my background as a chemical engineer, a person involved in design, might be of some assistance. So I agreed to at least take a look to see what was available and to see whether or not I could provide some assistance to him in trying to understand some of the issues related to cigarette design and nicotine delivery.
Q. But the reason that Mr. Ciresi knew about you in particular is not because you had published in the field of tobacco research, but because you had a prior relationship with him in prior litigation; isn't that true?
MR. CIRESI: Objection, asked and answered.
THE COURT: It's been asked and answered. BY MR. BERNICK:
Q. Since December of 1996, as I understand it, you've done an expert report for this case?
A. That's correct.
Q. And I think that that was -- we'll put 1/98.
I think that was in June of '97 that you issued your report; correct?
A. I submitted a report at the end of -- at the end of May, yes.
Q. And that report summarized the opinions that you expected to offer in this litigation; correct?
A. Based upon the documents I had reviewed at that point, yes.
Q. And you gave a deposition, I think it was in August of '97?
A. That's right.
Q. And again you had the opportunity, based upon what you had reviewed, to offer up the opinions that you were expected to testify to in this case; correct?
A. Yes. At that time, that's correct.
Q. Now we've already gone through what it is that was your state of knowledge about tobacco research prior to December of '96. I'd like to cover a little bit what materials and sources of information you reviewed after December of '96 in order to be able to offer the opinions that you offered in your report and your deposition.
It's true, is it not, that you did a cursory review of literature relating to tobacco during this period of time?
A. Up until the time of the deposition, I had begun -- I had begun a literature review which was incomplete at the time. I had spent the great majority of my time looking at the internal documents of the defendants that had been provided to me in order to understand how it was they went about their business and what business in fact they were engaged in. I had a wealth of information available to me which I drew on that point.
Q. Dr. Robertson, my question was directed to your review of the scientific literature. We're going to talk about the documents in a moment.
And I'll put the question to you again. Is it true that prior to the time that you gave your deposition in this case, that the only literature
review that you did was, in your own words, a cursory literature search?
MR. CIRESI: Objection, asked and answered.
THE COURT: You may answer that.
A. Well as I -- as I indicated, I had begun a literature -- literature review. It wasn't necessarily complete at the time, and -- and at the time of the deposition I didn't have a clear view of how much more I would review or -- or need to review in order to confirm the opinions I had reached at the time of the deposition based on my review of the internal documents, coupled with my background as a -- some almost 30 years as a chemical engineer dealing with issues that were very similar to what I was seeing in the -- in the documents regarding the design issues.
MR. BERNICK: Your Honor, I move to strike as not responsive. I'm asking the witness for his own characterization of the scope of the literature review that he actually did.
THE COURT: I believe the witness has responded. BY MR. BERNICK:
Q. Have you used the word yourself, Dr. Robertson, "cursory," to describe the literature search that you did?
MR. CIRESI: I'm going to object to the form of the question. It's still repetitious.
THE COURT: No, you may --
MR. CIRESI: The same --
THE COURT: You may answer that.
A. That was a word I used in the deposition, yes.
Q. Incidentally, prior to December of '96, before you were retained, isn't it true that you had done no testing in your laboratory on cigarettes?
A. That's correct.
Q. Isn't it true that you had done no testing in your laboratory on the components of cigarettes?
A. That's true.
Q. Is it also true that you had not even reviewed the work of any other scientist relating to the testing of cigarettes or cigarette components prior to December of '96?
A. Well the work I was engaged in prior to that time, either in my lab or in my consulting relationships, were not related to the tobacco industry or to issues of cigarette smoking. But as I said -- as I said earlier, the reason that I became involved in this case was because of the background and expertise that I have in the area of design with regard to issues that involve chemical engineering and bioengineering and biotechnology, which are all very closely related to the issues at hand here.
Q. Dr. Robertson, if you could turn to page 11 of your deposition -- which should be over at your left-hand side there. Did you understand --
You've given a deposition before; have you not, Dr. Robertson?
A. Excuse me?
Q. You've given depositions before; have you not?
A. Yes.
Q. Before this litigation?
A. Yes, I have.
Q. And I think you must have given depositions in connection with the other work that you did for Mr.
Ciresi; correct?
A. The other work that you're referring to in which I gave a deposition was about ten years ago. That's the only time I ever gave a deposition in any work with Mr. Ciresi.
Q. But I take it the answer to my question is yes, you gave a deposition in that litigation, too?
MR. CIRESI: Objection, it's asked and answered, Your Honor.
THE COURT: Sustained.
Q. You know, in this particular case, when you gave your deposition, you were under oath and you had an obligation to tell the truth; did you not?
A. True.
Q. Okay. And were you asked this question and did you give this answer at line eleven:
"Question: Had you reviewed the work of any other scientist relating to testing of cigarettes or cigarette components prior to December of 1996?"
And your answer was: "I don't believe so."
Was that question asked of you and was that your response at that time under oath?
MR. CIRESI: Excuse me, doctor. Your Honor, it's an inappropriate use of a deposition. He's already answered it.
THE COURT: Sustained. BY MR. BERNICK:
Q. After December of 1996, we talked about the literature review that you did; correct?
A. Well I had begun a review, yes, by that time.
Q. Isn't it true that by the time that you were deposed you were not aware of any seminars on tobacco and cigarette design that had been held in the United States on a periodic basis?
A. Well that may have been the case. I -- by that time, the time of the deposition, I had not turned up a great deal of material external to the information that I had been reviewing in your clients' documents that had resulted in the expert report.
MR. BERNICK: Your Honor, I move to strike that as non-responsive. I asked a simple question about his awareness of seminars.
THE COURT: I think it's responsive enough, counsel.
Q. Isn't it true that at that time you were also unaware of any professional societies, could not name them, any professional societies with respect to tobacco science?
A. Well that may have been the case, since my -- if I had -- if I had run into any of them in the internal documents, I certainly -- I guess I hadn't recalled them at the time that the deposition was given.
Q. Isn't it true that by the time your deposition was given in this case, you could not even name any of the experts who existed in the field of cigarette design?
A. I don't remember that precisely. But again, I had not searched the external literature with regard to whom those people might be. Again, my attention was focused on the documents of the clients, and to the extent that names would have appeared in those documents, most likely I wouldn't have retained them since I wasn't looking to memorize people's names and the roles that they had played.
Q. Would you turn to page 461 of your deposition. Do you see at line 20 the questions that are asked there and the answers that you gave?
A. At line 20?
Q. At line 20 of page 461, carrying on to 462, line five.
Does that refresh your recollection that you were unable to name any of the outside external experts that were established in the field of cigarette design?
MR. CIRESI: Your Honor, it's again an improper use of a deposition.
THE COURT: Sustained.
Q. Do you have any independent recollection, Dr. Robertson, of being able to name any -- anybody at your deposition in the field of cigarette design?
MR. CIRESI: Objection, asked and answered.
THE COURT: Sustained.
Q. Dr. Robertson, as I took a look at your expert report that you issued in this case, am I correct that it's comprised almost exclusively of references to internal company documents?
A. I think that would be a fair characterization because that is where I had spent all my time.
Q. Okay. Would it be fair to say that there is absolutely no discussion in your report of what the outside scientific literature has to say about cigarette design?
A. My focus at that time was on the internal documents, what the internal documents taught me about the activities taking place throughout the cigarette industry over many, many, many years, and it is on the basis of that information that I constructed the report because that's the basis from which my opinions flow, not -- not from people outside the industry who didn't have a clue of what you people were doing, but from inside where I could get the real answers to the questions I was asking with regard to what was going on with nicotine, nicotine control and nicotine delivery and nicotine manipulation. That's what I was doing.
Q. And in order to reach that opinion, you didn't review, as a scientist, and comprehensively, the outside scientific literature; is that fair?
MR. CIRESI: Objection, repetitious, asked and answered.
THE COURT: It is repetitious, counsel. BY MR. BERNICK:
Q. In order to reach that opinion that you just offered, you made no comparison between what you read in the documents and what existed in the scientific literature; correct, Dr. Robertson?
MR. CIRESI: Objection, it's repetitious and it's irrelevant.
THE COURT: You may answer that.
A. As I said, I was focused on the internal documents and what they told me about the activities that were taking place behind the walls of the cigarette companies --
Q. Dr. Robertson --
A. -- and --
May I finish my answer, please?
Q. I'm sorry. Sure.
A. So I studied those documents to come to the opinions that I came to, and these opinions are based upon the activities in these companies of which no one on the outside had any direct information. And I wouldn't have expected to find the kind of information I found inside those documents on the outside; after all, they're all marked "SECRET" and "CONFIDENTIAL."
MR. BERNICK: Your Honor, I move to strike as being non-responsive and as lacking foundation.
THE COURT: The answer will stand. BY MR. BERNICK:
Q. Dr. Robertson, if we go ahead and take a look at your expert report, isn't it true that between the time that you issued your report in June of 1997 until today, that you've never issued any amendment, supplementation, or change to your expert report? Is that a fact?
A. No, it's not a fact.
Q. Have you issued another document that sets forth your opinions in this case other than the report that you issued in June of '97?
A. There was a supplemental -- as I understand it, a supplemental offering as to additional documents that I had reviewed.
Q. Sure. Okay. And I'll rephrase my question, because that's fair, Dr. Robertson.
I'm asking you whether you ever issued another document that set forth your opinions since you issued your report in June of 1997. Did you ever do that?
A. No. There was no need because as I continued to obtain documents -- I understand it that not all the documents had been produced by the time I had written my report, and they were still coming in, and so I would look at them, and the reason I looked at them was to be sure that the opinions that I had reached in May would still stand. Obviously, if I found information that might cause me to change my opinions or to amend them, I would have done so. But all I found in the streaming -- in the streams of new documents that came my way was just further confirmation of what these people were doing in their laboratories, in their research and development activities to control and manipulate and deliver nicotine.
MR. BERNICK: Your Honor, I move to strike as non-responsive. I asked him a very simple question, which was whether he ever issued another report.
MR. CIRESI: Oppose the motion.
THE COURT: The answer will stand. BY MR. BERNICK:
Q. As a result of anything that you reviewed, Dr. Robertson, did you see fit -- did you come to the conclusion that anything that you had said in this document was in need of being changed?
MR. CIRESI: Objection, Your Honor, it's been asked and answered.
THE COURT: No. You may answer that.
THE WITNESS: I'm sorry, did you --
THE COURT: You may answer.
A. Could I have that back?
Q. Yes.
As a result of anything that you reviewed, did you come to the conclusion that any of the statements that you made in your report were in need of being changed or supplemented?
A. No, I hadn't reached that conclusion.
Q. Okay. I'd like to go through a question to you that's a general one, and then get into some more specifics.
You have a background, Dr. Robertson, as I understand it from your testimony, in working for a research institution; correct?
A. I don't know what you're talking about.
Q. Is Stanford University a research institution?
A. No.
Q. Oh. You don't do research there?
A. It's a university.
Q. And a university is not a research institution.
A. A university encompasses research and education and teaching. It's not a research institution.
Q. Okay. So I take it that when you're at that institution, in fact you go ahead and do research from time to time.
A. I'm just objecting to your characterization of the university.
Q. Whatever, Dr. Robertson. I'll just put another question to you so we don't --
Is it a fact that while you're at Stanford you do a lot of research?
A. Part of my activities is, in fact, operating a -- a laboratory with students who are getting advanced degrees, doing research. And I also teach these students at the graduate level and at the undergraduate level. So there is an educational component to what I do in addition to the research component.
Q. Fine. And is it true that when scientists do research, they often develop theories, and then in the course of their research they have try to find out if those theories are true or false? Isn't that something that people do in research do?
A. Generally research begins with a hypothesis.
Q. That's the right term to use there, a hypothesis?
A. I use that term, a hypothesis.
Q. Okay. That's fine.
And the hypothesis -- you tell me if I'm wrong -- is an idea or a proposed principle the scientist says maybe this is true, and part of the research is to find out whether the hypothesis is correct. Would that be fair?
A. Generally, yes, develop a means whereby you can test the hypothesis to establish whether or not it has merit.
Q. Okay. Would it be then fair to say that not all hypotheses are proven? Would that be a fair thing to say, Dr. Robertson?
A. Sure, I think that's a fair thing to say.
Q. Okay. And is it also true that to get from the research, even when the research is -- the hypothesis is proven, to a product, that can require an awful lot more work, correct, to apply the research?
A. So now you're talking about a --
You're not talking about the kind of research that I'm doing, then, at Stanford, because we're not in the product-development business.
Q. I understand.
A. We do research to advance the state of knowledge.
Q. Okay. And do other people become involved in the research --
As you're familiar with it, do other people become in research -- involved in research with the idea of developing or changing a product? Is that another kind of research that you can do?
A. It can be described in that way. That's --
You know, we use the term or we used a term "research and development." Typically --
Q. R&D?
I'm sorry, go ahead.
MR. CIRESI: May the witness finish his answer?
MR. BERNICK: Sure.
A. I mean typically the way it's -- it's commonly used when you say "research" is that you are seeking answers to very fundamental questions. The answers that you -- that you get may or may not have immediate applicability, and generally those that appear to are handed off to development or product development where they are -- they are embraced, in a way, and put into the form -- a form that offers utility.
Q. Okay. Now I think you've -- you've explained a couple things that are important. At Stanford University you're more involved in what I think you called fundamental or basic research?
A. Generally at Stanford I'm involved in basic -- what I would call basic research, yes.
Q. Okay. And whereas people who work for companies often become involved in doing research that's product oriented; correct?
A. Well I think it's fair to say that research that's done within -- within an organization would be in some way directed to the goals and mission of that organization. But it can still, nonetheless, be very, very fundamental. I mean good examples are companies like the -- the Bell Labs, which were in the communications business but stumbled across the transistor and things like that because of fundamental research that they were doing. So you -- you're never quite sure what's going to come out.
Q. You're never quite sure what's going to work and what's not going to work; correct?
A. Well in terms of research, you're never quite sure what the answer is going to mean in terms of product utility. And I'm sure that when Shockley invented the transistor at Bell Labs, he had no idea that it would evolve into Microsoft and Intel and all these other -- the computer generation that we're in now, so sometimes you just don't -- you don't know where it will take you.
Q. So when a company gets involved in doing research and development that's oriented towards their product, there, too, is going to be hypotheses and theories that don't ultimately end up being true or usable; correct?
A. Well there's a difference. They could be true and not usable. They could be --
Q. Hard to -- hard to be usable without being true.
A. Well you said it, I didn't.
Q. Okay. But -- but certainly the company doing
R&D work, it often is the case it will -- it will happen that people develop ideas that don't turn out to have real value or usability in a product; would that be fair?
A. That's fair. It may be later that it has utility. It may never have utility.
Q. May never have.
A. It might have utility somewhere else.
Q. Okay. Let's focus all of our attention in the first instance this morning on what actually happened to cigarettes as a product. So all the questions I'm going to be asking you are what actually happened to the cigarettes as a product. Are you with me?
A. Well we'll see.
Q. Well, we will.
You described, I believe it was yesterday, Dr. Robertson -- I don't know if this has got an exhibit number, I know it has been shown to the jury -- the cigarette cross section. Do you recall that?
A. Sure.
Q. Okay. And you went through -- I think you talked about this particular chart and said that these were the key elements of the cigarette. Do you recall that?
A. Oh, I may have used that term. Honestly, I don't recall that.
Q. Okay. Isn't it true that in 1979, the Surgeon General of the United States in his report went through each of these key elements and described or determined how each of these elements had the effect of reducing delivered tar to the smoker?
A. Well I'm not immediately familiar with what you're referring to in the Surgeon General's report, whether that was done or not.
Q. Okay. Could you take a look at the report. It's right before you. It's that -- it's that -- it's the thickest of the Surgeon General's reports. It's in evidence as JG -- J -- GJ113.
A. The big fat one?
Q. The big fat one. And if you'll direct your attention to page 14-114 --
You let me know when you've got the right page.
A. Okay. I have it.
Q. And do you see where the top of it says "REDUCTION OF BIOLOGICAL ACTIVITY OF CIGARETTE SMOKE?" The '79 Surgeon General's report.
A. Okay.
Q. Do you see where it says that at the top?
A. Uh-huh. Yes.
Q. And do you see that as you go down the left-hand side, you have a bunch of methods, and they range from agricultural aspects of cigarettes to tobacco processing to cigarette production and tobacco substitutes. Do you see that?
A. Yes.
Q. And do you also see that under the column marked "TAR," the Surgeon General in '79 indicates with a plus which of the different methods have the effect of reducing tars, all the way down to cigarette production? Do you see that?
MR. CIRESI: Your Honor, I'm going to object to this as being outside the scope of this expert's opinions. He didn't address tar in the sense of carcinogenic or anything else in that regard.
THE COURT: Well are you able to answer this question, doctor?
THE WITNESS: I'm not sure what the question was he asked me.
THE COURT: Okay. All right, let's rephrase the question, then, and we'll see what happens. BY MR. BERNICK:
Q. Isn't it a fact that what this table shows is that when it comes to each of the key elements -- let's begin with cellulose acetate filters. Did you describe to the jury that one of the key elements was the filter plug?
Dr. Robertson. Did you describe to the jury that one of the key elements of the cigarette was the filter plug?
MR. CIRESI: Excuse me. Your Honor, the witness was reading the document and then he interrupted him with the question.
THE COURT: Maybe you should give him a chance to read the document.
MR. BERNICK: Sure.
A. Okay, I -- I see where it says cellulose acetate filters, and there's a plus in the tar column.
Q. Okay.
A. And I can read the footnote which says plus is -- refers to significant, whatever that means.
Q. All right. The plug, the filter plug is a cellulose acetate filter; correct?
A. It is in this table.
Q. Right. And you described and you showed the video of the factory about how all those filters came out of the machine. Remember that?
A. Yeah. I saw that, yes.
Q. And what the Surgeon General is saying in that table, is he not, is that the cellulose acetate filter has the effect of reducing tar delivery; correct?
MR. CIRESI: Objection, Your Honor, it's outside the scope of this expert's report.
MR. BERNICK: Your Honor, he talked extensively about tar and nicotine, particulates and the filter.
MR. CIRESI: He talked about the design parameters which affected delivery of nicotine. That was what he's proffered for.
THE COURT: Doctor, are you able to answer the question?
A. I can only parrot back what the table says.
Q. Isn't what the table says --
Let me put it to you this way, Dr. Robertson: Isn't it a fact that the cellulose acetate filter has the effect of reducing the measured delivery of tar? Isn't that the effect of the cellulose acetate filter?
A. That's an effect.
Q. An effect. Fine.
If we go to the cigarette wrapper, isn't one of the effects of the cigarette wrapper to reduce -- through porosity, it can reduce the delivered levels of tar; isn't that also true?
A. According to this table there's a plus in -- in that column.
Q. Okay. Based upon your own understanding, isn't it true that paper porosity, if you increase the porosity of paper, one of the effects of that is to lower the delivery of tar as measured through the FTC method?
A. It's a -- basically a form of ventilation.
Q. And the answer, therefore, is it will have the effect of reducing FTC measurements of tar; true?
A. All other things remaining equal, that's what -- that's what one would expect.
Q. Okay. And when it comes to the ventilation holes, again is one of the effects of the ventilation holes to reduce the FTC-measured tar delivery?
A. Well I don't see --
Perforated filters, this is what they're referring to.
Q. Based upon your own knowledge, is one of the effects of ventilation of the holes to reduce the FTC-measured deliveries of tar?
A. Yes, I've seen that.
Q. Okay. If we go inside of the tobacco column to the tobacco rod itself, isn't it true that if you use expanded tobacco, that expanded tobacco on the table, isn't it true that if you use expanded tobacco, one of the effects of using expanded tobacco is to reduce the FTC-measured deliveries of tar?
A. Well expanded tobacco allows you to put less -- essentially less tobacco material in the rod, and so you have less to combust.
Q. And therefore you have lower tar deliveries as measured through the FTC method; correct?
A. That's an expectation, yes.
Q. Okay. If you talk about reconstituted tobacco -- you gave a presentation yesterday on reconstituted tobacco -- isn't it true that one of the effects of using reconstituted tobacco is to lower the FTC measurements of tar?
A. I think there are data that would -- that would support that. Certainly it says so in this table.
Q. Okay. Extraction, you also talked about extraction in the course of your remarks yesterday, and we saw in the videotapes the extraction process. Isn't it true that one of the effects of extraction is to reduce the FTC-measured deliveries of tar?
A. Well I don't believe that's what they're talking about in this table. This was organic solvent extractions, which appear in the remarks to be only of academic interest.
Q. I just asked you a question about the videotape that you showed yesterday. Isn't one of the effects of the extraction process to reduce the FTC-measured deliveries of tar? Or do you know?
A. Well in the paper recon process where you remove the water solubles and -- and -- and add them back to form that material, I think I've seen -- seen data that would -- would indicate that to be the case, yes.
Q. Okay. Now if we go ahead and take a look at the impact of some of these different changes --
Do you have the 1989 Surgeon General's report there? You have '81. Alternatively, you can look at volume one -- volume one, tab five, in those --
I'll just make it easier for you. I know those notebooks are heavy.
(Document handed to the witness.)
Q. I'm going to hand you what's been marked as Exhibit BYN58. It's the 1989 Surgeon General's report.
MR. CIRESI: Pardon me, counsel? May I have it again?
MR. BERNICK: Oh, I'm sorry. Yes. BYN58.
MR. CIRESI: This is the '89 Surgeon General's report?
MR. BERNICK: Correct.
MR. CIRESI: You didn't designate that. Do you have the title?
MR. BERNICK: Twenty-five years of --
Do you have an extra full copy for him? I think it may be up on his table as well.
Q. Are you with me? Do you have the '89 report in front of you?
A. Yes.
MR. BERNICK: Your Honor, we would offer the '89 Surgeon General's report into evidence.
MR. CIRESI: We have no objection, but it's not on their list, so we're --
I presume you're going to place it up on the overhead?
MR. BERNICK: Sure.
THE COURT: All right. That's BYN58?
MR. BERNICK: Yes.
THE COURT: I just want to make sure that --
MR. BERNICK: I'm sorry. Yes, it's BYN58.
THE COURT: I want to make sure other counsel has a copy.
MR. CIRESI: They've given us one now, Your Honor.
THE COURT: You have a copy. All right. Court will receive, then, BYN58.
BY MR. BERNICK:
Q. If you turn to page -- it's off the bottom of my copy here -- page 88, do you see up in the upper left-hand corner a chart that talks about tar and nicotine contents of cigarettes on a sales-weighted average basis?
A. Yes, I see the chart.
Q. Okay. And I've got also a poster here so that we can make easier reference to it later on.
MR. BERNICK: Mike, do you want to --
MR. CIRESI: I assume it's the same, counsel.
MR. BERNICK: It certainly is. BY MR. BERNICK:
Q. Do we see, Dr. Robertson, that what this chart describes is the tar content and nicotine content of cigarettes, sales-weighted average basis, from 1957 to 1987, and the top line would be the tar and the bottom line would be the nicotine? Is that what we see in that chart?
A. Yes.
Q. And do we see that also on the chart there is indicated the changes that have been made to cigarette design over the years, indeed the same changes that we now just talked about, and the effect of those changes on FTC-measured deliveries. Is that what this chart reflects?
A. Well it shows some of the changes that were made.
Q. Well the ones in particular that we just talked about, I think, are all on there; am I right? Recon, porous paper, expanded tobacco and ventilation.
A. Yes.
Q. And is what that chart shows is that, again according to the FTC's method, that the effect of making these changes over the years has been to lower the measured delivery of tar from cigarettes?
A. Yes. The measured delivery as determined by FTC.
Q. Okay. Now part of what I'd like to ask you relates to the very end of the chart over to the right-hand side. Do you see where tar is kind of at -- a little bit over -- you have to actually put your eye over here. This -- this side deals with the scale of tar deliveries; right?
A. That's correct.
Q. Okay. So that by the end of this chart in '87, the sales-weighted average of tar deliveries was something like, you know, maybe 12 to 14 milligrams; would that be correct?
A. Approximately.
Q. Okay. In point of fact, today -- this is a sales-weighted average, but today you can go into the store and buy different brands of cigarettes with FTC tar deliveries that go all the way down to about one milligram; right?
A. There are products on the market that have one milligram tar as measured by the FTC.
Q. And by the same token, for people who want higher deliveries, there are also higher deliveries that go on up to, what, 18 milligrams of tar per FTC?
A. Approximately, yes.
Q. Okay. Now this change in the measured deliveries of cigarettes, isn't it true that the Surgeon General recognized explicitly that this change in deliveries had the effect of reducing the biological activity of smoke?
MR. CIRESI: Objection, Your Honor, this is outside the scope of his testimony.
MR. BERNICK: Your Honor -- Your Honor, the witness testified specifically to carcinogens in smoke, and this relates to the biological activity of smoke. That's why I'm asking him.
THE COURT: Okay. But I'm not sure he's qualified to make that decision as to what the Surgeon General's basis is.
MR. BERNICK: Oh. Well okay.
THE COURT: I think you can -- maybe you can rephrase it.
MR. BERNICK: I'll try to lay some foundation. BY MR. BERNICK:
Q. Have you looked into the question, Dr. Robertson, of what the Surgeon General has said about the effects of reducing these smoke deliveries on the level of biological or carcinogenic activity? Have you looked into that?
MR. CIRESI: You may answer that.
A. Well I haven't explicitly looked into that. That wasn't what I was doing in this case. I was looking at the physical and chemical aspects of cigarette design as it pertained to nicotine delivery.
Q. Well I notice that in your report you make reference to the -- one of the -- one of the things that you list as additional materials reviewed by Channing Robertson is the 1981 Surgeon General's report. Is that one of the particular Surgeon General reports that you did in fact review in connection with your work on this case?
A. Well I did look at the Surgeon General's reports that I was provided with, but as you know, they're very voluminous.
Q. Okay.
A. And my focus, as I've said, was on the internal documents of the companies and their activities over this period of -- of time for which we had -- for which we had documents with regard to what they were doing in connection with reductions in tar and nicotine over the years.
Q. Did you look and see what the Surgeon General said about the effect of those design changes on the risks that smokers face when they smoke a cigarette? Did you do that?
MR. CIRESI: Objection, Your Honor, it's outside the scope of direct. It also is an improper question in form with respect to time. Which -- which Surgeon General, et cetera.
MR. BERNICK: I'm talking about --
THE COURT: It is too vague. But you may --
MR. BERNICK: I can rephrase it.
THE COURT: Just a moment.
MR. BERNICK: Okay.
THE COURT: You may answer the question if you're able to, doctor.
THE WITNESS: No, I'd rather have it --
MR. BERNICK: I'm sorry, what?
THE WITNESS: Could you have it -- give it back to me again, please?
MR. BERNICK: Sure. BY MR. BERNICK:
Q. When you read that Surgeon General's report in 1981, did you check to see whether the design features that you were focused on and the design changes that you've described, did you check to see what the Surgeon General said about the effect that they would have on health risk?
MR. CIRESI: Your Honor, I'm going to object to that as calling for information outside the scope of this expert's testimony. We have experts on health risks.
THE COURT: Okay. You may answer it if you're able to, doctor.
A. I did not examine that explicitly, no. As I said, I was looking at the internal documents as they spoke to me with regard to the activities within the various companies over the years as modifications such as these occurred, and what it was they were thinking and what it was they were doing with regard to tar and nicotine deliveries over the -- over the years. And quite frankly, in those documents there was little, if any, discussion of health effects.
MR. BERNICK: Your Honor, I move to strike the last statement as non-responsive.
THE COURT: Well the answer will stand. BY MR. BERNICK:
Q. Well you showed the jury just a few moments ago this morning Exhibit 11973, which is a BATCo document, and I've got the same chart up on the screen that you showed the jury at that time.
When you were showing the jury this pie chart of the constituents of smoke, are you saying that you were not -- you have no opinion and you're making no commentary that any of those components are harmful to human health?
MR. CIRESI: Your Honor, are we going to qualify the witness and get into the health effects? It's outside the scope of this witness's testimony.
THE COURT: Okay.
MR. CIRESI: It's an improper question.
THE COURT: Sustained. BY MR. BERNICK:
Q. When you were showing the jury all these additives -- remember this chart here -- just tell me one way or another: Were you suggesting that these additives had some -- any one of these additives had some particular health risk to the smoker?
MR. CIRESI: Objection, outside the scope.
THE COURT: Sustained.
Counsel, don't direct the witness how to answer, please.
MR. BERNICK: Okay. I'm -- I'll rephrase my question. BY MR. BERNICK:
Q. Do you or do you not know, Dr. Robertson, whether any of these additives pose any particular health risks for smokers?
MR. CIRESI: Objection, outside the scope of this witness's testimony.
THE COURT: Sustained. BY MR. BERNICK:
Q. It's true, is it not, Dr. Robertson, that the changes that we've talked about here and that you discussed in talking about the key elements, is it true that those changes were encouraged by scientists working at the National Cancer Institute?
MR. CIRESI: Objection, Your Honor, outside the scope of this witness's testimony.
THE COURT: You may answer if you know.
A. Well I am familiar, although I don't know the details, that there was a concern expressed by health authorities in the -- I think in the mid '50s, late '50s, regarding certain adverse effects related to smoking and to health.
Q. Okay. And in particular in the 1970s, are you familiar with the pronouncements of scientists from the National Cancer Institute on encouraging the industry to in fact lower the deliveries of tar? Do you know about that one way or another?
MR. CIRESI: Objection to the form of the question. Counsel's testifying.
THE COURT: Sustained.
Q. Are you familiar with what the Cancer -- National Cancer Institute said in the 1970s about reducing deliveries?
THE COURT: That's better.
(Laughter.)
THE COURT: Go ahead.
A. Is there a question, or is that my answer?
Q. We'll see.
THE COURT: I just told counsel that he asked an acceptable question at this point.
A. I'm aware that there were issues raised by public health authorities over a concern of the adverse effects of smoking toward public health.
Q. I want to show you what's already in evidence as GI27, and I'm just going to ask you a very simple question about it, which is whether you are familiar with the -- with the prescription for low-risk cigarettes that was issued by scientists for the National Cancer Institute?
MR. CIRESI: Objection to the form of the question, Your Honor, with regard to this document.
MR. BERNICK: That's what the title is.
THE COURT: You can answer the question.
Q. Are you familiar with this prescription, Dr. Robertson?
A. I haven't seen this document, no.
Q. Are you familiar with the Banbury report that was issued in 1980 on a conference concerning safer cigarettes?
A. I have heard of it, yes.
Q. It's volume one, tab 16, Exhibit JG107.
MR. CIRESI: GJ?
MR. BERNICK: I'm sorry, GJ. Yes.
May I approach the witness, Your Honor?
THE COURT: Yes.
(Document handed to the witness.)
MR. BERNICK: Here's the whole report.
BY MR. BERNICK:
Q. Do you see that that's a copy of the report that issued on the Banbury conference, conference in 1980 on a less hazardous -- on less hazardous cigarettes?
A. Well it's entitled "A SAFE CIGARETTE." Yes, as I said, I've heard of it, but I haven't read this before.
Q. You've never taken a look at this?
A. Not in detail, no.
Q. Okay. Are you familiar that at the Banbury conference scientists, both for the tobacco industry and outside scientists, met to discuss changes that could be made to cigarettes with a view to making them safer? Was that your understanding of the purpose of the conference?
MR. CIRESI: Your Honor, I'm going to object to the use of documents which relate to matters outside the scope of the expert testimony of this witness.
THE COURT: Okay.
MR. BERNICK: I'll clarify my question, Your Honor. That's not my intent in asking the question, so I'll rephrase it. I understand the witness has not reviewed this document in detail, so my question was not related to this particular document.
MR. CIRESI: Well --
Q. Dr. Robertson, I'd like to ask you --
MR. CIRESI: Excuse me, counsel. My objection goes to attempting to deal with subject matters outside the scope of the witness who's on the stand.
THE COURT: Let me hear the question first, counsel. BY MR. BERNICK:
Q. Are you familiar, Dr. Robertson, with the fact that the Banbury conference was a meeting of both tobacco company scientists and outside scientists in the field of public health concerning what changes could be made to cigarettes in order to make them safer? Was that your understanding of the purpose of the conference?
A. Well I don't -- I don't really have an understanding, but I can see that there were people that were from academic organizations and the national laboratories. They -- they give a list of the participants.
Q. Do you have any understanding, Dr. Robertson, of the recommendations that came out of that conference for changing the design of cigarettes, separate and apart from the documents that are before you? As I understand it, you haven't had an opportunity to review it.
Separate and apart from that document, do you have any understanding of the recommendations that came out of that conference for changing the design of cigarettes?
A. Well it's -- it's tough to have that if I haven't examined the document.
Q. Well I -- that -- it's tough to have a specific --
I'm just trying to probe what it is you know. You said you heard of the conference. All I'm asking --
THE COURT: Counsel, counsel, --
MR. BERNICK: Okay.
THE COURT: -- please.
Q. Do you have any understanding from whatever source, the document or elsewhere, about the recommendations that came out of that conference?
MR. CIRESI: Objection, asked and answered.
THE COURT: Well I'll allow you to answer that.
A. Well as I said, I haven't -- I haven't even read the conclusions, so it's hard for me to tell you what the recommendations were.
Q. In fact isn't it true -- not specifically focused on the Banbury conference, but isn't it true that the changes that were made to cigarettes along the lines reflected in this chart and in the '89 Surgeon General's report, that those changes were applauded by members of the public health community because of their effect in reducing the risk of cigarettes?
MR. CIRESI: Your Honor, I'm going to object to these form of questions where the witness -- where the counsel is attempting to testify and use subject matters different than the witness who is on the stand has testified to.
THE COURT: The objection is sustained. And it's well taken, counsel. Try to avoid that, please. BY MR. BERNICK:
Q. Dr. Robertson, if we go ahead and take a look at the people who are expert in the field of cigarette design; that is, people who have published in that field, isn't it true that people who have published in the field of cigarette design for the last 20 years have very closely linked cigarette design with health effects?
MR. CIRESI: Objection to the form of the question and the subject matter, Your Honor.
MR. BERNICK: Well this is a --
THE COURT: You may -- just a moment, please.
MR. BERNICK: Okay.
THE COURT: You may answer the question.
A. What -- what experts are you referring to?
Q. Dr. Hoffmann. Do you know who Dr. Hoffmann is?
A. Sure, I've heard of -- heard of him, yeah.
Q. Isn't it true that people like Dr. Hoffmann, people who are experts in cigarette design, when they write about cigarette design, one of their principal focuses is trying to change the design of cigarettes so that they're safer? Isn't that what they write about?
A. Well if you show me an article he's written we could -- we discuss it. I don't know that he -- I don't personally know that he's an expert in -- in what we call cigarette design. I don't know if he claims that he's an expert in cigarette design or tobacco research or whatever. I don't -- I don't know the man. And I don't know what documents you're referring to where he's written about cigarette design. So if you want to show me some, we can -- we can talk about what he did and what he said.
Q. Well let me ask you the same question as was asked in your deposition. Update it to today.
Can you, as you sit here today, name a single recognized authority, not aligned with the tobacco industry, a single recognized authority in the field of cigarette design? Give me one.
A. Well as I said, I've certainly run across Dr. Hoffmann's name. I don't know if he characterizes himself as a cigarette designer, because it seems to me that the cigarette designers are working for the companies and they're designing the cigarettes. I don't know that Dr. Hoffmann has ever designed a cigarette.
Q. Okay.
A. And I don't know that he has even a clue of the understanding at any given time that your people did with regard to cigarette design and the factors that are important to it.
Q. Okay.
A. He's on the outside.
Q. Sure.
A. You kept everything on the industry inside. It was all secret.
MR. BERNICK: Your Honor, I move --
A. So talking to people --
MR. BERNICK: -- to strike the editorial comment.
MR. CIRESI: Well, Your Honor, he's asked this witness about subject matters outside the scope of the direct examination here, and that's the tactic that he uses, and he -- then he asks an open-ended question and he gets the answer.
THE COURT: Counsel, counsel, --
MR. CIRESI: I object to --
THE COURT: -- do you have a legal objection?
MR. CIRESI: Yes. I object to counsel's characterization of the defendants -- or the witness's answer.
THE COURT: The objection is sustained. BY MR. BERNICK:
Q. Dr. Robertson, independent experts in the field of cigarette design, can you tell us one person today who holds himself out as being an expert in the field of cigarette design?
MR. CIRESI: Objection, asked and answered.
THE COURT: That's been asked and answered now, counsel.
MR. BERNICK: Your Honor, this would be a good time to take a break. I've got a new subject matter coming up.
THE COURT: All right. Why don't we recess for lunch. We'll reconvene at 1:40.
THE CLERK: Court stands in recess.
(Recess taken.)
AFTERNOON SESSION.
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. BERNICK: Good afternoon.
(Collective "Good afternoon.") BY MR. BERNICK:
Q. Good afternoon, Dr. Robertson. I want to go back to the chart that we'd been working with today out of the Surgeon General's report and ask you whether it's true that by 1970 or thereabouts, after the tar deliveries had begun to and indeed had already been declining, whether about this point in time it became published in the scientific literature that people might be compensating in smoking lower delivery cigarettes? Did that occur at about that time?
I'll put a little mark around 1970. Was that about the date that that occurred?
A. I'm unaware of the date that that became public.
Q. Okay. Are you aware that in the 1981 Surgeon General's report, which was on the list of reports that you had reviewed, are you aware of the fact that in 1981 the Surgeon General's report expressed concern over the possibility that people were compensating when they smoked lower delivery cigarettes?
A. It may have. I don't recall that.
Q. Well if you'd turn to Exhibit TG237, which is the '81 Surgeon General's report -- I think that that's the -- I think you've got a copy. It's the thin right next to the stack there. There you go.
Do you see, if you take a look at the preface of this report, it recites that "As early as 1966, the Public Health Service" --
The Surgeon General's part of the Public Health Service; correct?
Dr. Robertson?
A. I was trying to find the place.
Q. I'm sorry. The Surgeon General's part of the Public Health Service; is he not?
A. Yes, that's my understanding.
Q. Do you see where it says, "As early as 1966, the Public Health Service held that, quote, the preponderance of scientific evidence strongly suggests that the lower the tar and nicotine content, the less harmful would be the effect." Do you see that statement there?
A. Yes.
MR. CIRESI: Your Honor, I'm going to object to this line of questioning. Again it's outside the scope of direct of this expert.
THE COURT: The objection is sustained. BY MR. BERNICK:
Q. Well then to go a little bit further down on this page where the Public Health Service says that -- in this 1981 report, that is, the Surgeon General's report -- "The Public Health Service has reviewed the question again in far greater depth than before. Overall, our judgment is unchanged from that of 1966 -- 1966 and 1979. Smokers who are unwilling or as yet unable to quit are well advised to switch to cigarettes yielding less tar and nicotine, provided they do not increase their smoking or change their smoking in other ways."
MR. CIRESI: Your Honor --
MR. BERNICK: Excuse me.
MR. CIRESI: Excuse me, counsel. I'm again going to object to the scope of this examination. This is the subject matter of another expert's testimony.
MR. BERNICK: Your Honor, if he'd just allow me to finish asking the question, he'll see that I'm laying a foundation for a further statement in this report that it relates to. I want to read the statement completely.
THE COURT: Why don't you ask your question.
MR. BERNICK: I'm sorry?
THE COURT: Why don't you ask your question.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. The carryover sentence is, "But our new review raises new questions and suggests an even more cautious approach to the issue. Here are the basic findings of the report," and there's a colon, and it says, "Smokers may increase the number of cigarettes they smoke and inhale more deeply when they switch to lower yield cigarettes. Compensatory behavior may negate any change of the lower yield product or even increase the health risk."
Does that, then, provide the Surgeon General's statement that the Public Health Service is concerned with the issue of compensatory behavior?
MR. CIRESI: Once again, Your Honor, we'd object to the scope of this inquiry. It's outside the scope of this expert's testimony.
MR. BERNICK: Your Honor, he -- MR. CIRESI: He testified -- excuse me, counsel. He testified on design of the cigarette with respect to a nicotine-delivery device, not on the health effects of smoking.
THE COURT: Sustained. BY MR. BERNICK:
Q. Dr. Robertson, is it a fact that the Surgeon General was focused on compensatory smoking behavior in connection with lower yield cigarettes at this time?
MR. CIRESI: Same objection, Your Honor.
MR. BERNICK: Your Honor, there was extensive testimony through this witness about our documents concerning compensation for nicotine.
MR. CIRESI: There was --
THE COURT: Just a moment, please.
MR. BERNICK: Excuse me. And what we will establish is that the statements contained in the documents that this witness says were unknown to nobody else were taken right out of similar statements in the pronouncements of the public health authorities. This is the first one.
MR. CIRESI: Your Honor --
THE COURT: I don't believe that he's testified with respect to any expertise other than what his review of the documents provided to him.
MR. BERNICK: But I believe he has --
I understand that, Your Honor, but I believe he has testified extensively that this was all a secret, that nobody else knew about it based on the documents, and what we're seeking to establish is that that ain't so. And I will show the language directly taken from these pronouncements.
THE COURT: Okay. I don't know if this is the right witness to ask those questions of.
MR. CIRESI: Your Honor, if I may --
MR. BERNICK: Well if --
THE COURT: The objection -- the objection is sustained. BY MR. BERNICK:
Q. I want you to take a look for a moment at TX13668, which you showed the jury in your direct examination, and I want to direct your attention to page ten of that document, which I have up on the screen.
A. How do I find the complete document?
Q. That would be at volume two, tab 52.
Do you see the statement that I've bracketed?
MR. CIRESI: May we have a page number?
MR. BERNICK: It's page ten.
Q. Quote -- this is from a BATCo document. Quote, "More realistic advice to smokers would be to choose a brand with a lower tar to nicotine ratio which gives them the satisfaction that they require in the lowest amount of smoke taken in." Do you see that?
A. Yes, I see where you're reading.
Q. And you pointed out that and similar language in many other documents in order to show that the industry was focused on tar-and-nicotine ratios in order to give the smoker the satisfaction that they require in the lowest amount of smoke taken in.
MR. CIRESI: Object to that as a misstatement of the evidence.
THE COURT: Well the jury will have to rely on their recollection of the testimony.
A. And I -- I don't understand your question.
Q. All I'm saying is that haven't you shown the jury many other documents that basically make the same kind of statement; that is, the industry was focused on developing tar-to-nicotine ratios in their research which gave the smoker satisfaction that they required in the lowest amount of smoke taken in? Haven't you done that during the course of your testimony?
A. Well what the industry was concerned with in the face of lowering tar is the problem that they would face if the nicotine levels dropped below the pharmacologic threshold, and this is why they were concerned about the tar-to-nicotine ratio, because, as we've said before, if the nicotine delivery fell below that which would give the desired pharmacologic effect, it would be out of business. That's why you're interested in it. You didn't want to go out of business.
MR. BERNICK: Your Honor, move to strike as not responsive. I didn't ask what the industry's motives were. I asked whether he read from documents that contained similar language.
THE COURT: I believe the answer was responsive, counsel. BY MR. BERNICK:
Q. Could you focus on the language of the document for a moment, Dr. Robertson. Let me ask you a very specific question about it.
Can you tell us whether that language is any different from exactly what appeared in the Surgeon General's report of 1981?
MR. CIRESI: Objection, characterization of another document. It's improper form.
THE COURT: Rephrase the question.
MR. BERNICK: Yes. BY MR. BERNICK:
Q. Can the --
Can you tell us, Dr. Robertson, whether the statement I have bracketed is any different from the precise statement about nicotine ratios that appears in the 1981 Surgeon General's report?
MR. CIRESI: Your Honor, then it's irrelevant as to the scope of this witness and his expertise.
THE COURT: You can answer if you're able to.
A. No, I can't answer that. I don't even remember what it was.
Q. I want you to take a look at page 25 of the 1981 Surgeon General's report. At the top of the page. Do you see where it says, from the Surgeon General, "Research could show if there is an optimum combination of standard yield and ratio that leads to maximum satisfaction and minimum -- minimal exposure to toxic products. Cigarettes that vary systematically in tar and nicotine ratios are needed for this research." Do you see that statement?
A. Yes, I see the statement.
Q. And isn't it a fact -- Would you agree with the testimony that Dr. Hurt has offered here that this constitutes a proposal to manipulate nicotine levels?
MR. CIRESI: Your Honor, objection to the form, asking one witness to characterize the testimony of another witness.
THE COURT: That's an objectionable question, counsel.
MR. BERNICK: I'm sorry?
THE COURT: That's an objectionable question. You cannot ask him to compare the testimony of another witness.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. Would you, Dr. Robertson, consider the research being proposed here by the Surgeon General to be research into the manipulation of nicotine levels?
A. Well he's talking about cigarettes that vary systematically in tar-to-nicotine ratios are needed for this research, so I see that as a -- an objective statement asking for such items.
Q. Would that be the manipulation of nicotine?
A. Well if nicotine changes, if it goes up or it -- it goes down, as it -- as it has here, that's a form of manipulation.
Q. Okay. Now I want to ask you, Dr. Robertson, whether in fact the industry found out, in taking a look at manipulation of ratios as described here, whether the industry found out that -- well let me just do it this way.
You also showed the jury this document, Trial Exhibit 13671, about the Y1 product. Do you remember that?
A. Yes.
Q. And do you remember that you described that document as a document in which the industry was looking to the possibility of developing a genetically engineered tobacco? Do you remember that?
A. Yes.
Q. And again, the concept was lower tar but perhaps increased nicotine. That would be, again, a different way of achieving a nicotine-to-tar ratio that was different; correct?
A. Yes.
Q. Okay. And isn't it a fact --
Let me show you what is in evidence as J -- excuse me, GJ113, which is -- if you take the large --
Does he have the big '79 report? Do you have the -- the big one, the '79 report? I thought we put it up there.
Where is the '79 report?
MR. CIRESI: What's the number, counsel? That's not in evidence.
MR. BERNICK: The number is J -- GJ113.
MR. CIRESI: What's --
MR. BERNICK: It's the '79 report.
MR. CIRESI: '79?
MR. BERNICK: Do you have it? Okay. BY MR. BERNICK:
Q. If you'd take a look at page 14-30, do you see where the Surgeon General describes in 1979 that "Possible approaches that plant scientists can take to modify tobacco leaf have been reviewed by," I think it's "Dr. Tso." Do you know who Dr. Tso was?
A. No.
Q. Do you know what the Department of Agriculture was developing by the way of new breeds and strains of tobacco during this period of time?
A. No, I don't.
Q. Do you see where it says, "The main objective of such research is to acquire the desired characteristics which will meet with the acceptance of smokers and at the same time produce a less harmful tobacco?"
MR. CIRESI: Your Honor, again we're going into a subject matter that has already been testified to by Dr. Hurt, and it's outside the scope of this witness's testimony, whether it's safer or more harmful with regard to the type of tobacco. It's outside the scope of this expert's testimony.
MR. BERNICK: I'm laying a foundation for a further question, Your Honor, and I'll get to it in just a moment.
THE COURT: The objection is sustained, unless you have a different question than you've asked.
MR. BERNICK: Okay. BY MR. BERNICK:
Q. Let's go back to the Y1 product. Do you know why the Y1 strain of tobacco was developed?
A. No, I don't know its -- its history.
Q. Do you know whether or not the U.S. Department of Agriculture had any role in the development of that strain?
A. No. I told you, I don't have any knowledge of its history.
MR. CIRESI: Your Honor, I just -- I'm not going to object, but it's going to open up an area that the court has ruled on if counsel proceeds on this line of questioning.
MR. BERNICK: I'm -- I'm not --
MR. CIRESI: And it's a motion that they brought.
MR. BERNICK: Your Honor, he just said he didn't know, so I'm not going to pursue it.
MR. CIRESI: But those types of questions, Your Honor, open up the door on that issue that --
THE COURT: Counsel, I can't rule in anticipation of something. He's answered the question and the answer will stand. BY MR. BERNICK:
Q. Now when it came to actually looking into manipulated tar-and-nicotine ratios, isn't it a fact that the documents that you have shown to the jury -- I'll begin with Exhibit 10529 -- show that there were problems of consumer acceptance, that is, taste, when tar-to-nicotine ratios were changed significantly? Doesn't this state, "Several years ago, during the discussion of a presentation I made of smoker preferences related to nicotine/tar ratio, Cliff Goldsmith commented that the lack of acceptance of high nicotine to tar ratios (greater than ten) may be due to the harshness or taste unpleasantness that could be masked, implying that if such masking could be achieved, perhaps higher nicotine to tar ratios would be marketable?" Is that what that document says?
A. What was that number?
Q. 10529.
A. Well yes, that's -- you read it correctly, that's what it says. I just wanted to have the full document in front of me.
Q. And in point of fact, isn't it also true that when it came to the Y1 tobacco, that was a high nicotine strain; was it not?
A. Yes, it was.
Q. Isn't it also a fact that when it came to the Y1 tobacco, when used as a basic -- as a new -- whole new kind of tobacco, it was found that consumers didn't like the taste? Wasn't that the problem with Y1?
A. Oh, I'm not familiar with what the consumer acceptance was with the products that you put Y1 into.
Q. Are you familiar with the consumer acceptance that was found in the course of research on Y1?
A. Not that I'm aware of.
Q. Are you familiar with the consumer acceptance that was found in connection with research on high nicotine-to-tar ratios?
A. Well that's a very general question. I certainly am reminded of -- of several hours of videotape that I watched having to do with R. J. Reynolds discussing their Project XB.
MR. BERNICK: Your Honor, move to strike. There's no videotape that's in evidence.
MR. CIRESI: He asked an open-ended question.
THE COURT: Well I'll allow him to answer --
Have you finished your answer?
THE WITNESS: No. I was going to continue.
THE COURT: Allow him to finish his answer. I don't know if it's responsive or not.
A. This was a -- a two-day meeting that was held at RJR, and it was videotaped, and they were discussing a Project XB where they were having an issue of dealing with high nicotine-to-tar ratios and -- and concerned with the taste and -- and harshness that accompanied this -- this approach, and so they were back adding acid into the tobacco material to try to modulate the -- the levels. And I could see in watching the videotape the fact that they were in fact terrifically concerned as to not only the high nicotine-to-tar level delivering more nicotine, but they could see that the irritation was coming from too much free base nicotine. And as they said in -- in that movie or in that video, they were going to have to back out and modulate the acid so they could sneak the nicotine by and get it into the lungs.
MR. BERNICK: Your Honor, move to strike the editorial comment about sneaking. The tape is not in evidence.
THE COURT: Okay. The last sentence will be stricken. The rest of it will stand as responsive. BY MR. BERNICK:
Q. Is it a fact that in doing research with regard to the high nicotine-to-tar ratios, research -- the tobacco companies gave research products, that is, research-designed cigarettes, to test panels to test consumer acceptance internally? Didn't they do that?
A. Well I don't know. Are you referring to something specific that you'd want to talk about?
Q. I'm talking --
A. I mean you just make a very general statement, and I don't know whether they did or not.
Q. Well let me just ask this then: Are you familiar with the fact that in doing research on new cigarette designs, it's been the standard practice for years for tobacco companies, when they have a new research idea, to give those cigarettes to taste panelists and see how they like them?
A. Oh, I testified to that on my direct.
Q. Okay. That's why I asked you the question.
So those panels did in fact -- were in fact used to design -- to find out whether products will be acceptable to consumers; correct?
A. Yes, that's my understanding.
Q. Okay. And all I'm asking you is whether in fact what the industry found in doing this research on high nicotine-to-tar ratios was the consumer panels didn't like the taste? Isn't that what they found?
A. I gave you the example that I could -- the specific example I could recollect where there was a problem of it.
Q. Okay.
A. And --
Q. Didn't they find the same thing with regard to Y1?
A. I already answered that one.
Q. Okay. Now in point of fact, at the end of the day when we come down to what actually happened with the nicotine deliveries over time, isn't it a fact that by 1987, the -- let me rephrase the question.
Compensation, higher nicotine-to-tar ratios, weren't they researched during the period -- internally researched during the period of the 1970s and 1980s? Wasn't that a period of time during which the research was done?
A. Well compensation -- the potential for compensation is built into this device by virtue of the fact that the smoker has total control over the deliveries, and so it's -- it's been in the design all the time. It's just that you've added features to cigarettes over time that make additional ways for compensation to -- to happen.
Q. Could you --
I'll try to put my question again so it's real clear what I'm asking you. Isn't it a fact that the industry did research on changing nicotine-to-tar ratios, did that research during the period of the 1970s and the 1980s, as shown in the documents that you've shown to the jury?
A. Well they were concerned about tar and nicotine levels all the along, and particularly when you get to this period, this is when the documents came out dealing with the lower threshold dose and the -- and the problem that they were going to face with falling through this dose-range window if they didn't manipulate the nicotine in some way in order to salvage what was looking to be a pretty disastrous situation for the business. This in turn caused them to want to research high nicotine-to-tar cigarettes which gave rise to the problems he's pointed out, and they had to address those and -- and solve them. They also built in, through their design, compensatory alternatives which in effect allowed the smoker to adjust their dose in order to get the nicotine that they desired.
MR. BERNICK: Move to strike, Your Honor, as not being responsive to the question.
THE COURT: It is non-responsive.
MR. BERNICK: I'm sorry?
THE COURT: It is non-responsive.
MR. BERNICK: Okay.
Q. Question is a very narrow historical one. Okay? All I'm asking you is --
We've been talking about tar-to-nicotine ratios and the research into tar-to-nicotine ratios, and all I'm asking you -- real simple -- is didn't that research take place during the 1970s and into the 1980s as reflected in the documents that you've shown to the jury?
A. Just --
You're saying that in 1970 they suddenly started doing research on tar-to-nicotine ratios and then it took off after that? Is that what you're suggesting?
Q. I'm suggesting to you what the documents that you showed to the jury on direct examination showed, which is that that research into tar-and-nicotine ratio changes took place in the 1970s and 1980s.
THE COURT: Counsel.
MR. CIRESI: Objection.
THE COURT: Yeah. That's not a proper question. Your first question was okay.
MR. BERNICK: Okay. I'll go back to that one.
THE COURT: All right. BY MR. BERNICK:
Q. The timeframe for the research into actually changing tar-to-nicotine ratios, setting about doing that as a research item, didn't that take place in this period of time in the 1970s and 1980s?
MR. CIRESI: Objection, misstatement of the evidence.
THE COURT: You may answer that.
A. I haven't thought of it in terms of a time where that suddenly started.
Q. Is it a fact, Dr. Robertson, that as the brands continued to develop, the sales-weighted average of nicotine during this period of time continued on as indicated in this chart?
A. Well I -- I -- I take the chart for what it is.
Q. Okay. And isn't it also true that if we wanted to reflect the range, the total range of nicotine deliveries that were in fact made available, we would go as high as about 1.4 milligrams all the way down to .1 milligrams; that is, you could go buy cigarettes today that would have a measured delivery of as little as .1 milligrams of nicotine? Isn't that a fact?
A. Yeah, if you smoked it like an FTC machine does.
Q. I'm asking what you could buy. Could you go out to the store today and buy a cigarette that has a measured delivery of .1 milligrams of nicotine?
A. I think we asked -- you asked me that before and the answer was yes. It's printed on the -- on the box. That doesn't have anything to do with what a person might get delivered to them, however.
Q. We'll get to compensatory behavior in just a moment. I'm just asking what the rate of delivery of nicotine is for those cigarettes. .1 milligrams;
correct?
A. There are brands on the market that give .1 milligram as per the FTC method.
Q. Now what I had asked about before was tar. Likewise, if we use the scale over there, the tars go down to what is on that scale one milligram of tar; right, as measured by the FTC machine?
A. That's my understanding, yeah.
Q. In fact, isn't it also true that while all of this discussion was taking place about nicotine, that Philip Morris actually came out with a new product called Accord? Accord has come out more recently; correct?
A. Actually I'm not very familiar with Accord.
Q. And even earlier there was a product called Next that had come --
MR. CIRESI: Excuse me, Your Honor. Accord was post-'94. Discovery was cut off. Counsel knows that.
MR. BERNICK: Okay. I won't --
THE COURT: Counsel -- counsel, just a moment, please. Would you allow the court to rule?
MR. BERNICK: Sure.
THE COURT: The objection is sustained.
MR. BERNICK: Okay.
BY MR. BERNICK:
Q. I'd like to talk about the Next product. Do you remember the product called Next?
A. Yes.
Q. I'm at the side here. It's hard to read.
And in fact, isn't the Next product a product that has virtually no nicotine? Wasn't that put out into the marketplace to see if people would buy it?
A. Yes. It was a very low nicotine product, and my understanding is that people didn't buy it.
Q. So that during this period of time, when it comes to the FTC rate of deliveries of nicotine, consumers had a option to buy higher nicotine products all the way down to products that have almost no nicotine; correct?
A. Yeah, they had that option. But as you can see, once you drop through that threshold window, nobody wants it.
Q. Right. Nobody wanted to buy a cigarette that had no nicotine. You couldn't sell it; right?
A. It didn't have a