February 06, 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.
---------------------------------------------------------
THE CLERK: All rise. Ramsey County District Court is again in session, the Honorable Kenneth J. Fitzpatrick now presiding.
THE CLERK: Please be seated.
THE COURT: Good morning.
THE COURT: Counsel.
MR. BERNICK: Good morning.
BY MR. BERNICK:
Q. Good morning, Dr. Robertson.
A. Good morning.
Q. I'd like to turn --
We're getting towards the very end here, and I'll try to move through the rest of this promptly. But I'd like to turn to the subject of drug-delivery devices for a moment.
Let me mark this one and get a clean one.
I take it in order to have a drug-delivery device, you first of all need a drug. Fair?
A. Yes.
Q. And the delivery device is, then, a vehicle for delivering the drug; right?
A. That's one way to put it, yes.
Q. Now I believe you told us on your direct examination that a drug -- that any substance that would have a pharmacological effect when taken into the body would qualify as, in your term, a drug; is that correct?
A. Well I think that's a generally accepted definition.
Q. And is it true that there are many, many substances that, when taken into the human body, have pharmacological effects?
A. There are many drugs.
Q. Okay. And is it also true that there are many substances that, when taken into the human body, have a pharmacological effect on the brain and the nervous system?
A. There are many, yes.
Q. Okay. Now in this particular case, I think what you have said is that tobacco has, when consumed, has pharmacological effects; correct?
A. I said that when nicotine is consumed, it has pharmacological effects.
Q. Nicotine is the portion of the tobacco, when consumed, that has the particular pharmacological effects that your testimony has been focused on; correct?
A. Nicotine in tobacco, yes.
Q. Now it's true, is it not, that the fact that consuming tobacco has pharmacological effects has been known for literally two, three hundred years?
A. Well certainly tobacco in some form has been known to be used for hundreds of years, yes, for its pharmacologic effect.
Q. And when it comes to nicotine in particular, am I correct that nicotine was first isolated in about 1828?
A. As a pure compound?
Q. Yes.
A. That may be the case.
Q. And is it also true that by 1889, it was determined that nicotine in particular has pharmacological effects?
A. Are you referring to a document or a --
Q. Take a look at the Surgeon General's report.
A. Okay.
Q. 1988. It's the third in the stack in front of you. That's in evidence as GK245. And if you take a look at page ten.
A. Okay.
Q. Do you see where it refers to the fact that, "Since the late 1800s, research on the pharmacologic actions of nicotine has contributed substantially to basic information about the nervous system. The classic work which Langley and Dickinson (1889) on nicotine's effects in autonomic ganglia led to the postulates that chemicals transmit information between neurons and that there are receptors on cells that respond functionally to stimulation by specific chemicals."
That would be pharmacologic work on nicotine; would it not?
A. Yes.
Q. Now in the case of cigarettes, the vehicle for delivering the drug is the -- the cigarette package. Everything outside of the rod; right?
A. I don't follow you on that.
Q. Okay. I'm sorry. Let -- let me see -- we had the diagram here.
The device for delivering the nicotine is -- is this, it's the packaging of the tobacco; right?
A. It's the cigarette itself.
Q. Okay. And long before filters were put on, and ventilation holes and tipping paper and the like, people used to smoke cigarettes with just a wrapper around the tobacco rod; right?
A. That's right.
Q. And for so long as cigarettes have existed, just a tobacco rod with a piece of paper around it, even roll-your-own, that would be a vehicle for delivery or a device; would it not?
A. Yeah. It's a primitive form of -- of that relative to the highly engineered systems that your clients make today.
Q. I understand.
So it would be fair to say that the fact that cigarettes are drug-delivery devices in the fashion that we're talking about it here; that is, something to deliver cigarette smoke that has these basic pharmacological effects, the fact that cigarettes are a drug-delivery device in that sense has been known literally for more than a hundred years; correct?
A. I don't know that it was -- has been referred to as a drug-delivery device during those times. What I do know is that according to your internal documents, that's the way your clients view it, as a drug delivery device, and that's the business that they're in.
Q. But if someone -- if someone were to be asked in 1889 whether cigarettes are a drug-delivery device, based upon how you have defined device, pharmacological effects delivered through a vehicle, they would have said, "Sure, tobacco delivers nicotine. That's a drug." Is that right?
A. They would -- they would have said that after I gave them a little lecture.
Q. Oh. The basic lecture of drugs and delivery devices, they would have said, "Yes, cigarettes deliver nicotine. They're drug-delivery devices." It's not very -- it's not very complicated.
A. If I walked up to a cowboy in Deadwood, Wyoming in 1885 and said, "You're smoking a drug-delivery device," he'd probably shoot me.
Q. And it probably -- it probably wouldn't have made a -- it probably wouldn't have made any difference to that cowboy that he was smoking what you call a drug-delivery device; would it?
A. If he was smart, he might have gotten into the business before your clients did and make a whole hell of a lot of money.
Q. Maybe he would have. But it would have made no difference to him as a smoker that you are calling what he was smoking a drug-delivery device; would it?
MR. CIRESI: Your Honor, it calls for speculation as to what the unknown cowboy might or might not do.
MR. BERNICK: He was -- he was the one that brought the cowboy up.
MR. CIRESI: Well --
THE COURT: Let's -- let's get out of the West, gentlemen, --
MR. CIRESI: Okay.
THE COURT: -- and get back into today.
BY MR. BERNICK:
Q. Very simple concept. Cigarettes deliver smoke that has pharmacological effects, making them into drug-delivery devices. Very simple concept; is it not?
A. The concept is reasonably straightforward, yes.
Q. Okay.
A. The -- the implementation of that -- of that concept, in any case, can be complex --
Q. Because it's sophisticated.
A. -- because it's a highly engineered, sophisticated device.
Q. Sure. Let's talk about one other feature that you mentioned in your testimony, which is regulating dose; that is, that people, when they smoke, smoke in a fashion that, using the different design features that you've pointed out, delivers a dose of nicotine. You've referred to that in your testimony; have you not?
A. I referred to it, and your documents referred to it pervasively.
Q. Okay. Documents refer to it, you've referred to it. Fair? Right?
A. They both --
We both have.
Q. Okay. And that's why you've talked about rate controller, smoker controls dose. That's on your own chart; is it not?
A. Yes.
Q. Okay. Now the fact --
The theory that smokers smoke to regulate dose, that's been known and published since Johnston wrote about it in 1942; correct?
A. Why don't you show me the Johnston document and I can review it.
Q. Do you see the reference in the Surgeon General's report, "Johnston (1942)concluded that 'Smoking tobacco is essentially a means of administering nicotine, just as smoking opium is a means of administering morphine'?"
A. Yes, I see that.
Q. Okay. In point of fact, Johnston's article is one where he essentially talks about -- he does an experiment where nicotine was administered intravenously in order to see whether it would have the effect of reducing the number of cigarettes that were smoked; correct?
A. Well I haven't read the article.
Q. Oh.
Let's now make a new column, and let's put in this column "Alcohol." Is it a fact that alcohol has pharmacological effects when it's ingested?
A. Yes.
MR. CIRESI: Objection, irrelevant.
THE COURT: You may answer that.
A. Yes.
Q. Is it a fact that the vehicle for delivering alcohol is a glass with a mixture that creates the reservoir for alcohol?
A. A glass or a bottle, a container of some sort, yes.
Q. Is it also true that people control the amount of alcohol -- or are supposed to control the amount of alcohol that they consume?
A. They do that.
Q. Everybody's supposed to exercise judgment on when they have had enough to drink; correct?
A. It's up to the user.
Q. It's up to the user.
And if the user wants more dose of alcohol, you can have a double, you can have two beers, two glasses of wine, et cetera; correct?
A. Yes.
Q. Is it also true that caffeine has pharmacological effects?
MR. CIRESI: Your Honor, we're going to object to the relevance of this line of questioning.
MR. BERNICK: Your Honor, they brought this out through the documents. I can show you the documents that they used to bring this out.
MR. CIRESI: We have not brought out what caffeine is, what the manufacturers of caffeine were doing. We're trying the cigarette case here, Your Honor.
THE COURT: All right. I'll allow a brief inquiry.
MR. BERNICK: Okay.
BY MR. BERNICK:
Q. We could go through caffeine in soft drinks, a double cappuccino, we could go through the same type of presentation regarding caffeine, could we not; that is, there's a drug, a vehicle, and a way of controlling the amount that's up to the consumer.
A. But there's a substantial difference.
Q. Could we go ahead --
A. Could I finish?
Q. Well if we can have an answer to the question first, then we can put another question.
THE COURT: Counsel, please don't interrupt the witness.
A. There's a substantial difference between a cup of coffee delivering a dose of caffeine or a soft drink, or a drink of alcohol, and the difference -- there's a couple differences. One, I personally do not know that the manufacturers of soft drinks or coffee or alcoholic beverages intend to deliver dose amounts of those materials to the recipients, and I suspect strongly that that's not the case since there are, for instance, decaffeinated soft drinks and decaffeinated beverages and coffees available. So clearly they're not intending to achieve a certain dose range. And besides that, caffeine and alcohol don't kill over 400,000 people a year.
MR. BERNICK: Move to strike the last statement, Your Honor.
THE COURT: The last statement does not appear to be responsive.
BY MR. BERNICK:
Q. You can get decaffeinated soft drinks, you just pointed out; right?
A. Yes, you can.
Q. And then if you want a caffeinated soft drink, would we go to the can and find very specifically listed the amount of caffeine that's present?
A. I don't know if that's true on all soft drinks.
Q. You don't think that soft-drink manufacturers control the amount of caffeine they put in soft drinks?
A. I have no knowledge of the manufacturing processes of the manufacturers of soft drinks. I do know that it must be manipulated in some way because there are decaffeinated drinks available and there are caffeinated drinks available.
Q. Ever read on a bottle of wine that it's got 12 percent alcohol by volume?
A. Yes.
Q. And the hard liquor has got -- it's stated in proofs; correct?
A. That's correct.
Q. These are all regulations of the amount of the drug that's being administered through those different tactics; correct?
A. And these are regulated.
Q. Regulated precisely by the manufacturer; correct?
A. What about the Food and Drug Administration?
Q. Are they --
What about the Food and Drug Administration?
A. What kind of regulation do they have?
Q. I don't know. I'm not here to -- I'm not here to tell you about the Food and Drug Administration. I'm asking you a very specific question.
MR. CIRESI: And there is the point, Your Honor.
MR. BERNICK: This is an argument --
MR. CIRESI: This --
MR. BERNICK: This is an argument by counsel. I'm trying to ask the witness questions.
THE COURT: Counsel.
MR. CIRESI: Objection, irrelevant.
THE COURT: Okay. At this point it's sustained. Let's move on.
BY MR. BERNICK:
Q. Okay. Given the nomenclature, these terms that we have, isn't it a fact that as the internal document -- this is Plaintiffs' Exhibit 2788, which is at tab two -- excuse me, volume two, tab 41. Mr. Dunn's document.
MR. CIRESI: That's not the right exhibit number, counsel.
MR. BERNICK: Plaintiffs' Exhibit 2788?
MR. CIRESI: No. You're using a deposition exhibit.
MR. BERNICK: I'm --
What's the corresponding exhibit number? BY MR. BERNICK:
Q. If you could turn to volume two, tab 41, Dr. Robertson. 18089. Are you with me there?
A. I just want to take a look at this second.
Q. Sure. I'm going to draw your attention to page six here in a moment.
Isn't it a fact that what Dr. Dunn pointed out in "MOTIVES AND INCENTIVES OF CIGARETTE SMOKING" -- I should say what William Dunn pointed out in "MOTIVES AND INCENTIVES OF CIGARETTE SMOKING" was as follows on page six. "Lest anyone be unduly" -- well, "Lest anyone be made unduly apprehensive about this drug-like conceptualization of the cigarette, let me hasten to point out that there are many other vehicles of sought-after agents which dispense in dose units: wine is the vehicle and dispenser of alcohol, tea and coffee are the vehicles and dispensers of caffeine, matches dispense dose units of heat, and money is in the storage container, vehicle and dose-dispenser of many things."
Isn't what Mr. Dunn is pointing out exactly what we've pointed out here with regard to alcohol and caffeine, at least in his view, Dr. Robertson?
A. As I said, I haven't had an opportunity to review -- to peek into the citadel of secrecy that would surround a soft-drink company or a coffee company to begin to understand the intent and motives for which alcohol and caffeine are in those beverages, but I know for a fact in the cigarette business it's in there to deliver dosage forms of nicotine to the consumer. And your own documents admit that without it you would have no business. And your Next cigarette was a very good example of falling right through the bottom of the dose-range window.
Q. According to our own internal documents, Dr. Robertson, Mr. Dunn's conceptualization of cigarettes was the same conceptualization that he had with regard to alcohol, tea and coffee.
A. And where does it say --
Q. Correct?
A. Where does it say that he had access to the internal documents of -- of those companies? Nowhere.
Q. The soft-drink companies?
MR. BERNICK: Your Honor, could I have an answer to the question? I think he is not being responsive. I'm asking him whether Dunn's conceptualization --
THE COURT: Counsel, counsel, I believe the answer was responsive to the question that was asked.
BY MR. BERNICK:
Q. Let's go on and talk for a moment about tar.
As science has advanced, have you determined whether smokers in fact dose for tar; that is, what they're smoking for is tar?
A. What do you mean, "as science has advanced?"
Q. Well have you kept abreast --
Have you taken a look at the science of whether people who smoke cigarettes are smoking for tar as well as nicotine on a dose basis?
A. Well what your internal documents say is that tar provides essentially the flavor components for the cigarette, and this is why, as the tar was dropping in the '70s and '80s, you were faced with having to create these witch's brews of additive packages that you put on to the tobacco which then you incinerate and create thousands of more unidentified compounds that go into these people's bodies. That's what the tar was for.
MR. BERNICK: Your Honor, move to strike the editorial comment.
THE COURT: It is a little editorializing, but I'll let it stand.
Q. Are you familiar with the studies that have been done, Dr. Robertson, on whether people smoke for tar separate and apart from nicotine? Have you looked at those scientific studies?
A. Well let's look at them.
Q. I'm just asking you if you have, before you came into court today to testify.
A. Well I haven't seen anything in your internal documents that would say we're in the tar-delivery business for dose -- dose ranges of tars, that's -- that's nonsense because tar contains ten thousand -- ten thousand compounds.
Q. Have you looked at what Dr. Hasenfratz has published on the subject of people dosing for tar, separate and apart from nicotine?
MR. CIRESI: Objection.
A. I wouldn't --
MR. CIRESI: Excuse me. Objection, asked and answered in the broader form.
THE COURT: I'll allow the answer.
A. To the extent people dose for tar, if that -- that's a --
Dosing for what complement of tar? Tar is ten thousand, twenty thousand, maybe a million compounds. What they're -- what they're getting from the tar is these complex -- the complex chemistry that gives cigarettes their flavor and -- and their -- their character, because you know if you just take nicotine and dump it onto cellulose and light it on fire and smoke it, you can't smoke it, it's an acrid, pungent, bitter compound, and so you need to -- you need to have taste in order to achieve your consumer acceptance so that you can deliver the nicotine, the business you're in, which is delivering nicotine.
MR. BERNICK: Your Honor, could I have the question -- I'm sorry. Could I have the question read back about Dr. Hasenfratz?
Q. Do you know the studies or not, Dr. Robertson?
A. Dr. Hasenfratz's studies on the dose threshold of tar for the purpose of delivering tar to people who make a product?
Q. Yes.
A. Then why don't you take nicotine out of your cigarettes if they're just smoking it for tar?
MR. BERNICK: Your Honor, I'd move to strike as non-responsive.
THE COURT: It is non-responsive.
Q. Have you looked at Dr. Hasenfratz's work?
A. No.
Q. Compensation, as you've used the term in your testimony, Dr. Robertson, would mean that people who are smoking low delivery cigarettes with low tar, low tar and low nicotine, smoke them harder in order to get what they're used to with higher delivery cigarettes; correct? That's what compensation would be, is smoking these more; right?
A. Yes, smoking the -- the -- the device in such a way as to increase the -- the nicotine delivery. Of course that will also increase the tar delivery, and of course when you increase the tar delivery with the nicotine delivery, getting more tar is going to change the taste characteristics.
Q. Have you looked at the studies which see how people smoke high nicotine/low tar cigarettes in order to see if they still compensate because they're seeking tar? Have you looked at those studies?
MR. CIRESI: Object to the form of the question. If he has a study, it should be shown, not counsel testifying.
MR. BERNICK: I'm asking if he's familiar with the literature, Your Honor.
MR. CIRESI: Your Honor, he's describing -- attempting to describe literature without putting the exhibit in front of the witness.
THE COURT: Do you have a study that you can show him?
MR. BERNICK: There are -- there are -- there are a number of studies, Your Honor. I'm just asking if he's even familiar with the area.
THE COURT: Okay. You're asking a specific question, so -- I mean if you have a specific study, I think it would be fair to the witness to show it to him.
MR. BERNICK: I do, but in the interests of -- of -- of expedience, Your Honor, I'm just asking if he's even familiar with the area of research. If you want, we can pursue them study by study.
MR. CIRESI: Your Honor --
MR. BERNICK: I just want to know if he knows about it.
MR. CIRESI: And let me also object because it's outside the scope. That was the subject of Dr. Hurt's testimony.
THE COURT: Okay. Well doctor, I guess you can answer if you're familiar with this area.
THE WITNESS: I'm not familiar with the studies he's referring to, and if we need to go through them one by one, we'll go through one by one.
I am familiar with, in the high nicotine-to-tar cigarette, I am familiar with the problems of the irritation and the harshness that arise from them and the need to mask that taste -- mask that problem.
Q. The concept that people smoke for a particular dose of nicotine has been referred to in our documents and in the literature as titration; correct?
A. I've seen that used.
Q. And titration really means that people kind of have a particular dose that they like, and they smoke more or less to get that particular dose; correct?
A. That's what's said, yes.
Q. In point of fact, isn't it true that today, in much more recent work, it's now turned out that the titration theory has never been convincingly demonstrated? Are you familiar with the more recent studies on titration of nicotine?
A. Well let's take a look at them.
Q. I'm asking you if you have kept up. Do you know the current science today on titration of nicotine?
A. What I do know is what, based on the documents I've reviewed, what your industry did for nearly 40 years with regard to tar and nicotine, and what -- what comes out very clearly in looking at those documents is the concern, is the obsession with delivering nicotine and maintaining a dose level of nicotine in the face of declining tar levels, because everybody in your client companies realized that as the tar dropped, cigarette smoke got thin, the sensory panels didn't care for it, it was losing its taste, and this is why you went to these complex flavor packages, why you researched new kinds of casings to put on the cigarette to bring back what in fact you were losing as the tar dropped.
Your documents don't speak to tar dosage levels, they don't speak to dosing any other compound in tar, the only thing they speak to is dosing nicotine and using the tar and the taste attributes of tar to mask the harsh, irritating flavor of nicotine. That's what the documents speak to for 35 years. For 35 years this is the way this industry has worked.
MR. BERNICK: Could I have the question read back, please.
A. What studies are you referring to?
Q. Any current studies on the titration of nicotine. Have you kept up with it?
MR. CIRESI: Well Your Honor, again, I'm going to object to the form. He's not referring to any particular document.
THE COURT: Sustained.
BY MR. BERNICK:
Q. Have you done a literature search, Dr. Robertson, to determine what articles are out there today on the science of titration?
A. Well I did an extensive literature search on issues having to do with cigarette design, which is what I'm here to testify about.
Q. Did you do a literature search to find out what the articles say today about titration?
MR. CIRESI: Objection, asked and answered.
MR. BERNICK: I had a non-responsive answer the first time, Your Honor.
THE COURT: Counsel, please don't characterize the witness's testimony.
MR. BERNICK: Okay.
THE COURT: You may answer the question.
A. I did. I told you what I did.
Q. You've talked frequently about the internal documents that you've reviewed. Who did you get those documents from?
A. I received them from the attorneys.
Q. I'm sorry. Who?
A. The attorneys.
Q. The attorneys for the state; correct?
A. Yes.
Q. Was it important to you, if you were going to base your opinions, as you've testified, on the internal documents, to make sure that you had the full picture of what documents were out there and whether you had reviewed documents that gave a complete perspective on what the companies were doing? Was that important to you?
A. It would be important to have a representative cross-section of the documents, yes.
Q. Did you ever go beyond asking counsel for the state just to give you documents?
A. What I asked for is, after I started reviewing the internal documents that I was sent -- and you have to realize that --
I can't tell you how astonished I was at -- at what I was seeing.
MR. BERNICK: Your Honor, I move to strike the editorial comment.
THE WITNESS: Well it speaks to what the question you've asked me is.
MR. BERNICK: Your Honor, I have that motion.
THE COURT: All right. The witness's astonishment will be struck.
MR. BERNICK: Your Honor, could we have an instruction to the witness? This has happened several times now --
THE COURT: Counsel, do you have a question to address to the witness?
MR. BERNICK: Okay.
BY MR. BERNICK:
Q. Dr. Robertson, did you take the time to ask for depositions that had been taken of people who work for the companies to see what they had to say about the information that was in their files that it had learned? Did you do that?
A. Yes.
Q. You read depositions in this case?
A. Yes, I did.
Q. Which depositions did you read?
A. I read Townsend's deposition, I read Rowell's deposition.
Q. Who else?
A. Those two are the ones that come to mind, but there were others.
Q. What about the depositions of the people who wrote the documents?
Rowell is an expert, correct?
A. If that's what you say, yes.
Q. Okay. Well he didn't work for any of the companies. He's an outside expert; right?
A. That's correct.
Q. Townsend worked for one of the companies; right?
A. That's right.
Q. Okay. What about the people who wrote the documents that you testified about, did you read their depositions?
A. I told you I may have read others. Those are the two that come to my mind.
Q. Let's talk a little bit about -- well when you --
At least with regard to the documents that you've displayed to the jury, did you make sure to ask for other documents that related to the same subject matter so that you could fully appreciate what these documents were designed to do and what happened as a result of them? Did you make follow-up requests?
A. Yes, I did. As I came across topics, I would ask for any other that might -- that they might have that would speak to particular topics as -- as time went on and -- and I began to understand better the pieces of the puzzle.
Q. Okay. Let's go through a few.
I want to show you a chart that was displayed to the jury from Exhibit 12223, which is at volume two, tab 47.
A. Okay.
Q. If you look at the chart that's got the Bates numbers, last four digits of which are 4419, --
A. Yes.
Q. -- did you ever ask where that chart came from?
A. This particular chart?
Q. Yes.
A. Well I've seen it in the literature.
Q. Which literature have you seen it in?
A. Well in Morie's article in Tobacco Science.
Q. Take a look at tab one -- or volume one, tab 25.
MR. CIRESI: Do you have a exhibit number, please?
MR. BERNICK: Yes. GK100344.
MR. CIRESI: Again, please.
MR. BERNICK: I'm sorry, GK100344.
Q. Is that the Morie article?
A. Yes.
Q. Is that an article that you read in connection with your testimony here?
A. Yes. I'm familiar with the article.
Q. And does that article contain exactly the same chart published in the -- in the published literature that was contained in the BATCo chart that was shown to the jury?
A. It appears to be the same, yes.
MR. BERNICK: Your Honor, we offer GK100344.
MR. CIRESI: Under 803?
MR. BERNICK: We're offering it for two purposes, one, the witness -- well actually we'll offer it for one purpose. The witness relied upon it in connection with his work, and we offer it to establish the fact that the chart that was displayed to the jury as being from an internal study was in fact taken from the published literature. We offer it for that fact, Your Honor.
MR. CIRESI: Your Honor, can he make an offer under the rules?
THE COURT: Okay. Make an offer under the rules, please.
MR. BERNICK: That -- that is the offer under the rules. I'm not introducing it -- I -- I'm not introducing it to prove the truth of the matter that's reflected in the chart, I'm offering it as a historical fact that this chart was published in the open literature; therefore, there's no hearsay rule that applies to it.
MR. CIRESI: It's an inappropriate offer. If he's offering it under 803(18), we have no objection.
THE COURT: I'll receive it under 803(18).
BY MR. BERNICK:
Q. The BATCo chart was taken right from the published literature; correct?
A. I don't understand the point. I mean it's --
Q. Just answer it. I mean was this chart taken from the published literature?
A. Well they appear to be the same. Whether the person who wrote that copied it out of here -- he may have. I mean anyone can calculate this.
Q. Well let's take a look at another document. Take a look at Plaintiffs' Exhibit 10110, which is at tab -- volume three, tab 71.
MR. CIRESI: Can we have the exhibit number, counsel?
MR. BERNICK: Yes, PX10110. One of your exhibits.
A. Okay.
Q. Do see at page ten of that document Lorillard, too, went to the published literature and grabbed the same chart from Morie?
A. That's true, and they appropriately referenced it.
Q. In fact, if you take a look at the -- this was the Lorillard piece -- their memo that you talked about to the jury dated July of 1976 -- correct?
A. Yes.
Q. And in fact, the Lorillard document relies for its information on page after page of references to the published literature on the subject; true?
A. Well this is a -- an article dealing with pH and its -- and its measurement, and it refers to the -- to the literature.
Q. Did you take the time to go through the articles that Lorillard went through back in 1976 to see whether what Lorillard was talking about in the internal documents was different in terms of the science from what was already published in the scientific literature? Did you do that?
A. Well I don't quite understand what your point is. Because I have no problem with Leighton Chen writing a -- a -- a review of pH of smoke and referring to the literature.
Q. Okay.
A. I see nothing wrong with that.
MR. CIRESI: I'm sorry.
MR. BERNICK: Excuse me.
MR. CIRESI: Can the witness finish?
MR. BERNICK: I'm sorry. I thought you were finished.
A. I see nothing wrong with that. And the fact that nicotine is reponsive to changes in pH because it's a base substance is well known in the world of chemistry. What's -- what's, of course, not known is how your industry made use of it.
Q. Oh, I see.
A. And it made use of it secretly to manipulate nicotine.
MR. BERNICK: Yeah. Your Honor, again move to strike the editorial comment.
THE COURT: I don't classify that as editorializing. It may stand. BY MR. BERNICK:
Q. Well Dr. Robertson, do you know if anything that is said by Lorillard concerning pH and nicotine in this document is anything different than what was in the open literature that's cited in the document at the time? Do you know?
A. Well I'd have to review this to see if Mr. Chen made any of his own conclusions. I don't know that this -- I don't recall if this is just a true literature review or whether he's making comments based upon the literature and in terms of relating that to cigarette. I'd have to sit here -- cigarette manufacturing. I'd have to sit here and -- and read it. But clearly what it demonstrates is as is -- was true throughout the entire industry, there was a -- a strong desire to know about and control pH of smoke, and this is what this document represents. And I have absolutely no problem with people in the -- in the industry searching the outside literature to learn what they can so that they can use those concepts inside in the ways that they did.
MR. BERNICK: Can I have the question read back, please.
A. I gave you my answer.
Q. Do you know of anything that was in the documents that Lorillard knew that was different from what was known in the published literature?
MR. CIRESI: Objection, asked and answered.
THE COURT: It's been asked and answered.
MR. BERNICK: I'm sorry? I'm sorry?
THE COURT: It's been asked and answered.
BY MR. BERNICK:
Q. Can you identify anything that was different that they knew?
A. Well what shows in this article, if you just read the last page, it says, "One final question needs to be posed, whether an optimal pH can be defined or targeted? In the absence of quantifiable predictors for consumer preferences relative to flavor and taste, a purely operational definition must suffice: the optimal pH is the pH in which the delivered smoke gives a perceived taste, flavor and physiological impact most satisfying to the market target."
So what he does is he reviews pH, but in the end when he relates it to your industry, he relates it in a way that provides us with the clue as to why he wrote this in the first place. He was interested in trying to relate pH to the business, and the business was altering the form of nicotine for the purpose of delivering nicotine in an altered, functional form to the user.
MR. BERNICK: Move to strike as non-responsive.
THE COURT: It is responsive to the question you asked, counsel.
BY MR. BERNICK:
Q. Taking a look at Exhibit 13431, it was introduced on direct examination. This was a market -- "SMOKING BEHAVIOR MARKETING CONFERENCE," and you went through several pages of this. Do you remember?
A. Yes.
Q. Did you ask of counsel whether there were any documents which reflected where it was that BATCo got the information on smoking behavior that is contained in this document?
A. Where BATCo got this information?
Q. Yes.
A. Well there's a huge amount of information in there. What information are you talking about?
Q. Any of the information. Did you ask where BATCo got them, whether they got them from the published literature or from some other source? Did you ask?
A. When I read these, I assumed that -- the only two things I could assume, either BATCo obtained this information from their own experience in-house, they either got it from looking at the literature, or they got it from intelligence operations seeking to find out what other -- other competitors were doing.
Q. And did you -- did you make any inquiry to determine which one of those alternatives was correct?
MR. CIRESI: Objection, Your Honor, it's irrelevant.
THE COURT: You may answer that.
A. Well for a document this size, and going through every single page and trying to understand where the information came from when the information itself isn't referenced by the person who put this document together, that would be pretty difficult to do; wouldn't it?
Q. Well did you ask about whether there were --
Are you familiar with the fact that in the same year there was another conference at BATCo on nicotine that was held by the scientists? Are you familiar with that fact?
A. Oh, I may be. It doesn't ring a bell. What conference was that?
Q. The 1984 nicotine conference that BATCo held, are you familiar with that conference?
A. And where was it held?
Q. I'm just asking if you were familiar with the conference.
A. Well I'm just trying to ask some information about it to see if I can recollect. Where was it held?
Q. I don't remember the particular location. I'm asking you where --
A. Well you have the same problem I do.
Q. I may well.
Q. How about -- how about Southampton?
A. Yeah, perhaps.
Q. All right. Do you know about the Southampton nicotine conference?
A. Well I --
There's been a lot of things going on in Southampton.
Q. Do you know about the 1984 Southampton nicotine conference?
MR. CIRESI: Your Honor --
A. Well why don't you show me the record of it and I'll tell you if I've seen it.
MR. CIRESI: Do you have an exhibit number, please?
MR. BERNICK: TG522.
MR. CIRESI: TG?
MR. BERNICK: TG.
MR. CIRESI: That wasn't designated, counsel. It's a violation of the order, Your Honor. Wasn't designated.
May we have a copy?
MR. BERNICK: I believe it was designated --
MR. CIRESI: Well do you have a copy, counsel?
MR. BERNICK: -- in our February 4th letter.
Do you have a extra copy?
MR. CIRESI: Do you have a copy, counsel?
MR. BERNICK: We'll see if we can find an extra copy. Actually, you know what, if you want to take a look at volume three, tab 74, it's there. And maybe you could use, counsel, the copy that I furnished to the witness.
MR. CIRESI: It's not in your February 4th letter.
MR. BERNICK: Take a look at the last page.
MR. CIRESI: May I approach, Your Honor, to see what the document is?
Okay.
MR. BERNICK: Do you want to correct your misstatement?
MR. CIRESI: Is it on our letter? Is it on the letter?
That was not designated in accordance with the rules. That was in one of the later of eight letters that was referred where they withdrew documents and put them back in, a series of eight letters for this witness.
MR. BERNICK: We provided an updated letter, Your Honor. This was --
THE COURT: All right, counsel. Counsel, do you have a copy available for the parties?
MR. CIRESI: Your Honor, we'll -- we'll just proceed. The witness has one and we'll follow along.
THE COURT: Do you have one, counsel?
MR. CIRESI: We don't.
Oh, now we do.
THE COURT: Okay. Let's go.
BY MR. BERNICK:
Q. Dr. Robertson, have you ever seen that document before?
A. Well I can't tell you for sure one way or the other because there's -- as you might expect, I've looked at thousands of documents. But it's --
Q. Could you check back to the end to see all the references that are contained in that document.
A. Well here is -- here's some pages in the document, for instance, that I -- that I have seen, so it looks like --
Q. Do you see the published literature references in the document?
A. So it looks like I have seen at least some of this document.
What published literature are you speaking about? There's nothing in the back.
THE COURT: Why don't we take a short recess.
MR. BERNICK: Yeah. I'm sorry, Your Honor.
THE CLERK: Court stands in recess.
THE CLERK: All rise. Court is again in session.
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. BERNICK: Thank you, Your Honor.
BY MR. BERNICK:
Q. Dr. Robertson, if you could turn back to volume three, tab 74.
A. Did you want me to look at the references in that --
Q. I'm going to go through those, yeah. That's volume three, tab seventy --
A. Volume three, tab 74?
MR. CIRESI: Do you have the number of the exhibit?
MR. BERNICK: That was TG3522 -- I'm sorry, TG000522.
Q. Are you with me?
A. Yes.
Q. If you turn to the page that ends 118 --
A. Are you referring to the Bates numbers?
Q. Yes, at the -- at the bottom -- at the right-hand side of the page 118.
A. Okay.
Q. Are you familiar with Armitage's 1975 study on -- on puff duration, on puff -- numbers of puff and blood nicotine levels?
A. I've read some of the Armitage articles. Could you show me this one?
Q. That's really what I wanted to ask you. Did you look up this particular article?
A. I just told you I read several, and I could probably recognize it if you showed it to me.
Q. Well when you got this report --
You said you read this report, did you not, of this conference?
A. Yes, I -- I do recognize this.
Q. Yeah. Did you go and look up the reference that's contained in this chart, the reference that's contained in the next chart, the references contained in the chart after that to Armitage '75, Armitage '75 and Benowitz '83? Did you do that?
A. Well I said I've read several of the Armitage papers and several of the Benowitz papers, and if we look at which one this is referring to, I could tell you whether I did or not.
Q. Well I'm just wondering whether as part of your investigation of this document you took that step.
MR. CIRESI: Objection, asked and answered.
THE COURT: It's been asked and answered, counsel.
Q. Did you determine that there was anything that had been discovered regarding the matters set forth in this conference that was different from what appears in the articles?
A. Well that's a -- a huge question. If you want me to sit here and go through this conference proceedings, I'll do that, but that's just too huge of a question.
Q. Well that's -- that's -- that's a fair statement.
Can you make a statement one way or another about whether you recall finding something that had been discovered in this conference that was different from what appeared in the literature that was being referred to? Did you --
A. What do you mean?
Q. Did you find something of consequence that was different?
A. Than?
Q. Than what was already published in the literature at the time.
A. Well I would have to go through and study this large document to ascertain what issues they're referring to that were brought in from the outside literature and what issues that they're referring to that were brought in from their in-house research.
Q. And are --
Have you done that work as an expert and are you prepared to testify to that today?
A. Well let's talk about an issue.
Q. No, I --
Have you done the work before you came in here to court? All I'm asking you is whether you have done that comparison so that you can tell the jury what the result of the comparison is.
MR. CIRESI: Objection, unless we know which specific comment. It's overbroad, over-vague.
THE COURT: You can answer the question.
A. My answer is the same. That's a huge question. You'd have to do that topic by topic very specifically.
Q. And you haven't done it yet; correct?
A. No. I have read the literature regarding issues that are brought up and issues that are discussed here, but we'd have to do it issue by issue.
Q. Can you identify a single issue where there is a material discovery that was made by BATCo internally that's not contained in the outside literature at the time? Can you tell the jury that fact?
A. Well that's another huge, huge question. What I -- what I can tell you, however, --
Q. Well first --
A. -- is that however -- whatever was in the outside literature that was pertinent to the business of developing this drug-delivery system was used. I mean these people were familiar with the outside literature, there's no question about it. But it's --
The way a business works, as you well know, is you take in knowledge from the outside and then you develop internal knowledge. You don't have these enormous research and development laboratories just to have minions in there reading the literature and deciding how to make a product.
Q. And I take it --
A. This makes no sense to me, and it's -- it's -- it's false.
Q. Can we -- can we agree, Dr. Robertson, that the fact of taking ideas as they appeared in the outside literature and investigating them and researching them, that's exactly what you'd expect any company with an R&D department to do; wouldn't you?
A. Everybody looks to the outside literature. But I don't know of any literature in the public domain that says develop a drug-delivery device to deliver dosage forms of nicotine to people, and here's how you do it. That was all developed in-house.
Q. It was all developed in-house, whereas the Surgeon General in 1981 says that the industry should do precisely that; correct?
MR. CIRESI: Objection, Your Honor, it's a misstatement. It's also argumentative.
THE COURT: Okay. It is argumentative.
Q. Let me put the question to you again in a slightly different form. I take it you don't quarrel with the idea that the industry can take ideas that are developed in the outside literature or through the public health authorities and investigate them and research them as part of developing their product. Do you take --
MR. CIRESI: Objection.
A. -- issue with the industry doing that, or any industry doing that?
MR. CIRESI: Objection, it's been asked and answered twice. Also the form.
THE COURT: You may answer it.
A. I have no problem with an industry, even the cigarette industry, being reliant on a knowledge base that exists outside the industry, and in fact it would be silly to imagine otherwise. It's what you do with that knowledge, it's -- it's how you take that knowledge and weave it into a new kind of fabric, in this case a consciously-designed drug-delivery device, and that's the output of the industry.
Q. And the output of the industry and the design of the product is what we talked about yesterday; correct?
A. What are you referring to?
Q. Well all I'm saying is that what finally comes out --
There may be lots of ideas that get developed from the outside, brought in-house, that just don't turn to work out; correct?
A. Oh, that's common in -- in R&D, that you attempt things that -- we have discussed that, whether they --
They may or not work out, it depends on the utility to the business at hand, or you may keep things on the shelf for a while and use them at some later date.
Q. And under any of those circumstances, whether the idea is worked out or not, we would still find documentation in the companies' files that discuss those ideas; correct?
A. I would expect that they keep appropriate records, that you'd find instances where they attempted a project and it -- and it didn't work out, and other times you'd find the trail that leads to a successful product within the files of the company.
Q. Last question to you: The additives, isn't it a fact that a list of these additives was provided to the federal government in 1984 so the federal government could look into whether they were appropriate additives for cigarettes?
A. Well as I recall, I thought that the companies gave these to a law firm and then they were given -- so they went to a law firm, as I understand it, and then -- I don't know what happened there, and then it was given to the HHS.
Q. And -- and do you know whether the list that was given to HHS was comprehensive, of literally hundreds of additives that are used in cigarettes?
A. Comprehensive? You mean did they tell everything that they knew?
Q. Do you know of any additives that were not disclosed to HHS?
A. Well how would I know that?
Q. I'm just asking. I'm not -- I don't think that you would, but I'm just asking you.
Are there any of these additives that haven't been disclosed to HHS?
A. No, those have been disclosed.
Q. Yeah.
A. I don't know if there's any additives that haven't been disclosed.
Q. Okay. And isn't it a fact that HHS was to determine if there was a problem with including those additives in cigarettes?
A. I don't know what HHS was to do with that information.
Q. Isn't it a fact that HHS since 1984 has never taken a position that any of those additives is inappropriate for use in cigarettes?
MR. CIRESI: Objection to the form of the question, Your Honor. Counsel is testifying.
THE COURT: You may answer if you know.
A. I didn't --
As I said, I don't know what HHS does with that information. I don't know if they pyrolyze these and they look at the adverse-reaction components that could result when you incinerate them as you do in a cigarette. I have no idea of what they do with that information.
Q. Isn't it also a fact that additives and their potential consequences for risk were also investigated by the Tobacco Working Group with the National Cancer Institute?
A. What I do recall is, in the internal documents, is a -- a concern that they better start being more careful about and more vigilent about the additives they put in cigarettes in terms of the adverse consequences that might result from them. I do remember those documents.
Q. Can we focus on the question though? Isn't it a fact that additives and their potential effect on risk in cigarettes was specifically investigated by the National Cancer Institute as part of the Tobacco Working Group?
A. Which of these additives?
Q. Have you looked into it at all?
A. Well I'm just asking which of these additives.
Q. Well cocoa.
A. Well that's one out of about 700.
Q. Well could you begin with that one. Do you know whether the National -- the National Cancer Institute and the Tobacco Working Group looked into the appropriateness of using cocoa as an additive?
A. Well show me some documents that show me what they did and I'll tell you.
Q. Well I'm really asking for what you know. Do you know whether they looked at it or not?
A. Specifically I don't know what they did with additives. If you'd show me the documents that deal with it, summary proceedings or what have you, I could answer that.
Q. Do you know whether additives were discussed in the Banbury conference on safer cigarettes with the outside scientists?
A. It may have. I don't recall.
Q. Do you know whether --
Are you familiar with the Hunter Committee in England?
A. Yes, I have heard of the Hunter Committee.
Q. Do you know whether the additives were -- there was a published list of approved additives that came out of the ISC process in England?
A. The Independent Scientific Committee --
Q. Yeah.
A. -- in England?
I do know that the -- the Hunter Commission was concerned about additives, but I don't know how these additives were approved, I don't know how they were tested, and I don't know how that testing related to what happens in a cigarette when you incinerate them.
Q. Well I'm just --
Maybe I'll put the question to you and tell me what the answer is: Have you looked to see if there is an approved list of additives that came out of the ISC committee?
MR. CIRESI: Objection, it's outside the scope of discovery.
THE COURT: No, you can answer it if you know.
A. I don't know one way or the other what list they approved, if they approved a list.
Q. Okay. Do you know how long additives have been used in tobacco?
A. Heaven knows what people might have put on tobacco in the -- in the early days. I mean it's --
I do know that in modern cigarettes additive packages are very, very important.
Q. Do you know how long additives have been used in tobacco?
A. I can't tell you the first day they started adding it. I presume it's been -- been used for some long period of time.
Q. Back to the Portugese sailors that used to sprinkle licorice on their tobacco to preserve it?
MR. CIRESI: Well, Your Honor, I'm going to object to counsel's form of the question.
THE COURT: Counsel, you are testifying.
Q. Do you know the history of the early use of additives as a flavorant?
A. As I told you, my work was focused primarily on the documents that were provided. I wasn't studying Portugese history.
Q. Were you studying tobacco history at all?
A. I was studying the internal documents from the time that the first internal documents that I had were dated and moving forward. And there was ancillary -- ancillary information about material in the past having to do with the tobacco companies and the invention of the cigarette-making machines and so forth, but I didn't focus on that. I focused on what it was you people, your clients knew and what it is they did with the information they knew about in terms of making this drug-delivery system. That's -- that's what I'm here to testify about.
Q. And you're not here to testify about any particular health risks associated with additives because that's outside of your expertise; correct?
MR. CIRESI: Your Honor, that's been asked and answered three times.
THE COURT: It's been asked and answered.
Q. Combustion products. You showed this table here as a part of Exhibit 11973.
A. Yes.
Q. Did you look to see what the Surgeon General reports have discussed concerning combustion products going back to 1964?
A. I don't have a recollection of what -- of what they said, but if you can show me what they said, we can discuss it.
Q. Well I guess what I'm asking you is: Did you look to see if there are any combustion products that were identified, for example, in this document by BATCo? Were there any combustion products that weren't publicly available through the Surgeon General's reports?
A. I don't know of anybody who knows all the combustion products that are found in tobacco, Surgeon General or your clients.
Q. But you certainly have not made a comparison between what's contained in -- in internal documents about combustion products and what's published in the literature; have you?
MR. CIRESI: Objection, Your Honor, it's outside the scope.
MR. BERNICK: I'm asking if he's made the comparison.
MR. CIRESI: Your Honor, whether he has or hasn't is outside the scope. He's not here on the health effects of smoking.
THE COURT: Okay. You may answer the question.
A. I've seen lists of chemicals that are in the open literature and I have seen lists of chemicals that have been present in the internal documents. I haven't made a side-by-side comparison. The list is, as you well know, is -- is enormous.
Q. It's huge, yes.
A. And it's incomplete.
MR. BERNICK: I'd like to mark a couple of these charts for demonstrative purposes.
MR. CIRESI: Excuse me.
MR. BERNICK: I'll mark as --
MR. CIRESI: We're glad to offer counsel our exhibit stickers, but they've been designated so many for the plaintiff and so many for the defendant. So please, go ahead.
MR. BERNICK: Oh, is that all right?
MR. CIRESI: Sure.
MR. BERNICK: Could I borrow maybe like five? Is that --
Can I mark them in sequence?
THE COURT: Are you going to let him have five, counsel?
MR. CIRESI: I think I will, Your Honor.
THE COURT: All right.
MR. BERNICK: I'll even say please and thank you.
We'll mark as 25015 the recipe chart, 25016 the pH chart and ammonia chart, 25017 as the pH and blood chart, 25018 as the ammonia and sugar chart, 25019 as the peripheral and CNS effects. Can I have one more?
MR. CIRESI: You're beyond five already, counsel.
MR. BERNICK: Yeah, I think it's five. But can I have one more? 25 -- 25020 is the drug-delivery device chart.
And we would offer them all as demonstrative exhibits for illustrative purposes only.
MR. CIRESI: We object to them because all they are all drawings from counsel. They're not a demonstrative that was written or drawn by a witness, it's counsel writing down what he wants to write down from testimony.
THE COURT: Sustained.
MR. BERNICK: Well Your Honor, the jury can determine the weight to give, but they were used for purposes of cross-examination.
THE COURT: Counsel, these are your writings and they're not properly a demonstrative exhibit.
MR. BERNICK: Fine.
I have no further questions. Thank you.
THE WITNESS: You're welcome.
REDIRECT EXAMINATION - DR. CHANNING ROBERTSON
REDIRECT EXAMINATION BY MR. CIRESI:
Q. Doctor, you were asked some questions about HHS. Do you recall that?
A. Yes.
Q. Do you know if information provided to the Secretary of HHS by the tobacco companies is required to be treated as trade secret or confidential information?
A. I believe it is.
Q. And do you know if HHS was provided additives with respect to those added to the paper or filter?
A. They were not given that kind of information.
Q. Can you direct your attention, please, to the exhibit in front of you, which counsel gave to you, TJ000522.
A. He took it away.
MR. BERNICK: It's in the notebook. I believe it's in the notebook.
THE WITNESS: Well he asked me for the one you gave me, and he took it away.
MR. CIRESI: Do you have that exhibit?
MR. BERNICK: Sure.
BY MR. CIRESI:
Q. I believe Mr. Bernick asked you to check at the back to see the list of all the references, external references. Is there any such list at the back of that document?
A. No, there's no list of references that I can find in this document.
Q. Now if you go through that document --
This is one that you did review on occasion?
A. Yes, I found pages in here that re -- refreshed my memory, so I have looked at this.
Q. Can you -- I'm just going to touch on a couple.
Can you go to page 347, last three Bates numbers.
A. Okay.
Q. And title of that page is "PHARMACOKINETICS OF NICOTINE." Correct?
A. That's right.
MR. BERNICK: I didn't offer that.
MR. CIRESI: You didn't offer this?
MR. BERNICK: No. If you'd like to put it into evidence, it's fine with me.
MR. CIRESI: We would offer Exhibit 5222, TG5222.
MR. BERNICK: No objection.
THE COURT: Is that the correct number, counsel?
MR. CIRESI: Five --
THE COURT: The TG000522?
MR. CIRESI: I'm sorry, Your Honor. Yeah, I should give you the zeroes, TG000522.
THE COURT: Okay. And there's no objection?
MR. BERNICK: No, Your Honor.
THE COURT: All right. We'll receive that in evidence.
BY MR. CIRESI:
Q. I'm taking you to page Bates number 347.
A. Yes.
Q. And that's the "PHARMACOKINETICS OF NICOTINE;" is that correct?
A. "PHARMACOKINETICS OF NICOTINE," yes.
Q. And in the second paragraph there, is there a reference to internal research done by B.A.T?
A. Yes, that's right. They're talking about preliminary results from a GR&D study, which is the in-house research arm, that was carried out at a local hospital. They were working on the administration of nicotine by different routes and at different rates in an attempt to recognize the importance of these factors which will alter the pharmacokinetics in determining the physiological effects of the drug. So I presume that they were collaborating in some way in -- at a hospital in human studies having to do with the fate of nicotine in the human body.
Q. And can you direct your attention to the page which bears the later three Bates numbers 356.
A. All right.
Q. Do you see the Bates number in the lower right-hand corner? And does this page, which is entitled "SECTION IV, SUMMARY," refer to other in-house studies conducted by BATCo?
A. Yes. This refers to in-house studies which are attempting to characterize the nature of the nicotine receptor in brain tissue. These studies also provide the opportunity to characterize the, quote, pharmacological potential of nicotine analogs, that would be other drugs that behave like nicotine, in terms of their binding characteristics with the nicotine receptor. So this would refer to work that is being conducted within the company under their auspices and within the confines of their own business.
Q. And doctor, were there other references within this document, TG000522, to internal research conducted by B.A.T based on its own internal information and on outside information?
A. Yes.
Q. Mr. Bernick asked you about the Morie article, which was one that you had read. Do you recall that?
A. Yes.
Q. And he also referenced you to Trial Exhibit 12223.
A. Where can I find that? Is it in the trial notebook?
Q. It should have been on the ones that he gave you.
A. All right.
Q. But if not, we can --
We'll put it up on the overhead here, doctor, if you can follow it on that.
Do you recall this chart?
A. Yes.
Q. Do you recall questions where he was asking whether this chart was published in external literature?
MR. BERNICK: Objection, that's not the question that was put.
A. I -- I think the question was whether or not this chart had been taken from the external literature.
THE COURT: Okay.
A. And --
Q. And the date of Exhibit 12223 is June of 1988; is that correct?
A. Yes.
Q. Okay. And the Morie article was in 1972?
A. It was an early article. This whole notion of the -- of the deprotonation/protonation curves is -- there's nothing magic or secret about that. It's not unusual, probably, to find it in -- in many spots in the literature, nor would I consider it unusual to have the BATCo science -- science folks or anyone else make use of that. I mean with a handheld calculator I could calculate those same curves in five minutes. So there's -- there's nothing that's magic about -- about that in my opinion.
Q. And was that same chart referenced in other documents that you saw?
A. Yeah. It -- it forms the basis or the -- the initial basis for understanding under what conditions you will have certain amount of free base, certain amount of protonated nicotine. And so, obviously, you're going to find that in all the documents of any company that's interested in changing the functional form of nicotine through pH control. You need to know that. They all knew it. They all used it.
Q. Now doctor, directing your attention to the issue of the Benowitz article which was published in the New England Journal of Medicine, Volume 331, in July of 1994, do you recall Mr. Bernick directed your attention to that article?
A. Yes, he did.
Q. And you stated that you had read it; correct?
A. That's right.
MR. CIRESI: May I approach, Your Honor?
Q. Do you recall Mr. Bernick asking you questions regarding that article with respect to dose threshold levels?
MR. BERNICK: Your Honor, I object to the form of the question. That wasn't the nature of the question that was put to the witness.
THE COURT: Okay. Rephrase the question, counsel.
Q. Do you recall Mr. Bernick asking you questions concerning this article with regard to threshold levels of nicotine?
MR. BERNICK: Again, that's not the question that was put, but let's just go ahead.
THE COURT: Let's go ahead.
A. I remember there were questions about this article.
Q. Can you direct your attention to page 123.
A. All right.
Q. And in the first column toward the bottom, carrying over to the second column under the title "ESTABLISHING A NICOTINE THRESHOLD FOR ADDICTION," does Dr. Benowitz address that issue?
A. Yes, he does.
Q. We'll start at the bottom of column number one. "That nicotine addiction sustains tobacco use for most smokers is well established. Once a person is addicted to nicotine, quitting smoking is difficult, and more than 90 percent of the smokers who try to quit each year fail. An important, if not the most important, component of a policy to reduce tobacco use in the population is to prevent the development of nicotine addiction in young people."
THE COURT: Counsel, excuse me.
MR. BERNICK: Your Honor, this -- they objected to our showing this very document through this witness, even though it was in evidence, on the grounds of lack of foundation through this witness, and now they're displaying the same document. I'm happy for that, but then I want to be able to question the witness as well in terms of the text of this document because I was not permitted to do so yesterday.
MR. CIRESI: He did ask a question concerning this, implying the public health community -- and he has said this on more than one occasion -- was advocating a threshold level for nicotine to keep people addicted, Your Honor.
THE COURT: Counsel, that --
MR. BERNICK: Your Honor --
THE COURT: Just a moment, please. That opens the whole document up, counsel.
MR. CIRESI: Well I understand. He can come back on this document.
THE COURT: Okay.
MR. CIRESI: I'm just -- I'm looking at the --
MR. BERNICK: Thank you, Your Honor.
BY MR. CIRESI:
Q. "An important, if not the most important, component of a policy to reduce tobacco use in the population is to prevent the development of nicotine addiction in young people. Young people do not start to smoke because they are addicted, but rather because of psychosocial and environmental influences, particularly peer influences, psycological factors and advertising. Young people generally underestimate the addictiveness of nicotine, and most of them at first intend to smoke only a few years. However, once they begin to smoke, many become addicted to nicotine, and this addiction sustains the self-injurious behavior into adulthood. The result of nicotine addiction is a 40 percent probability of premature death from illness caused by tobacco. It is difficult to prevent adolescents from experimenting with cigarettes. However, by regulating the availability of nicotine in the tobacco products, it may be possible to prevent the transition from experimental or occasional smoking to addiction. This paper examines the proposition that the level of nicotine likely to produce addiction can be estimated and that mandating a nicotine level below that level is a feasible approach to tobacco regulation."
Now doctor, with respect to your review of the defendants' documents, what if any action did they undertake, based on those documents, over the 30 years that the documents represent with respect to establishing nicotine levels either below or above or at a certain level?
A. Well as we saw, the documents speak with great clarity to their activities in this area; that is, the recognition that there is a lower threshold dose below which the desired pharmacologic activity disappears, and in view of that, the extreme necessity for this business as we know it today to survive requires that the nicotine availability in a cigarette, by however it's manipulated, be above this threshold dose, but they made no efforts to consider going below it. And when they did, as they did in a few denicotinized products, no one bought them, no one wanted them.
Q. Did you find anything in the defendants' documents which reflected their desire or intention or interest in working with public health authorities to reduce the threshold level of nicotine below an addictive level?
MR. BERNICK: Your Honor, they have consistently, consistently objected to my pursuing questions and interrogation concerning our relationship with public health authorities. We would love to pursue the subject of public health authorities, we've been consistently foreclosed from doing it, and now that's exactly the subject matter he's pursuing.
MR. CIRESI: Your Honor --
THE COURT: Do you have a objection, counsel?
MR. BERNICK: Yes, my objection is that it goes beyond the scope of all the prior examination.
THE COURT: Sustained.
MR. BERNICK: Thank you.
BY MR. CIRESI:
Q. Did you see anything in the documents with regard to designing dose levels that would indicate the defendants wanted to go below a certain level that may be addictive? Whether it's addictive or not, was that a design consideration reflected in their documents?
A. To go below a threshold level?
Q. Yes.
A. No. Never.
Q. Did you find anything in the defendants' documents anywhere in which they endorsed such a position from a design standpoint, regardless of whether it's addictive or not?
MR. BERNICK: Your Honor, same objection. Endorsed whose position?
THE COURT: Rephrase that question, counsel.
BY MR. CIRESI:
Q. Did you find anything in the defendants' documents, regardless of whether nicotine is addictive or not, which endorsed a public health position of going below a presumed addictive level of nicotine?
A. No. Never.
Q. Now you're not here to testify whether it's addictive or not; are you, doctor?
A. I'm not here to testify to that.
Q. Can you turn to page 125 of this article. Go right to the end where it reads as follows: "The measures described in this proposal may seem drastic to some. However, the problem of one-quarter of a billion premature deaths caused by tobacco use in developed countries calls for drastic action. Tobacco use is motivated by nicotine addiction. We offer a strategy for the prevention of nicotine addiction based on recent scientific data. This approach deserves study by the regulatory authorities."
Now with regard, again, to the design of the cigarette and only the design, doctor, what did the documents reflect with respect to their internal knowledge as to when the defendants started manipulating nicotine?
A. It goes to the beginning, it goes to the beginning of the documents I saw. The road to nicotine manipulation was there and it's been there; they're all still on that road.
Q. Now doctor, did your review of the documents indicate what the defendants said publicly about whether they manipulated or didn't manipulate nicotine?
A. Yes, I saw such documents.
MR. BERNICK: Your Honor, again I was foreclosed from pursuing this line. We would have produced evidence concerning numerous public statements through the literature. I was foreclosed from doing it.
THE COURT: Do you have an objection, counsel?
MR. BERNICK: Yes. It goes beyond the scope of any prior examination.
THE COURT: Sustained.
BY MR. CIRESI:
Q. Doctor, let me direct your attention to another issue. Do you have Exhibit 13155 in front of you?
A. I have it.
Q. And that's the article by Dr. Teague which Mr. Bernick questioned you about?
A. Yes, it is.
Q. And he was asking you about market shares. Do you recall, with relationship to pH?
A. Yes.
Q. Can you direct your attention on that page -- or on that document, 13155, to page 4141.
A. Okay.
Q. That's an August 10th, 1973 letter from Mr. Moore of the marketing research department?
A. That's right.
Q. And it's addressed to Mr. Blevins?
A. That's right.
Q. And the title of the page is "CORRELATION OF pH AND SHARE OF MARKET PERFORMANCE?"
A. Right.
Q. And it's dated, as I said, August 10th, 1973; correct?
A. That's correct.
Q. What's being reported here with regard to correlation of pH and share of market performance in their document some 20 -- 25 years before this lawsuit began?
A. Based on the data that they had examined relating pH to share of market for commercial cigarettes, including Salem, Kool, Winston and Marlboro, what they found is that over the period of time they made this examination there was an extraordinarily high correlation between pH and share of market, and in particular between free base nicotine and share of market.
Q. And in the same document that Mr. Bernick used, Exhibit 13155, can you turn to the next page, page 4142, which is dated July 3rd, 1973, and was again from Mr. Moore to Mr. Blevins, and it's titled "CORRELATION OF SMOKE BALANCE FACTORS WITH SHARE OF MARKET, SOM TRENDS."
A. Yes.
Q. And can you tell us what is reported on this page of this document, 13155?
A. Yes. They were trying -- they were analyzing the difference between -- trying to understand the difference in the share of market between Winston and Marlboro and between Salem and Kool, and they were trying to find out what of the many variables that might influence the share of market were the most important, and the factors that they were including were free nicotine, total nicotine, tar, nitrogen, ammonia and sugar, and they were examining these variables to see which of them, if any, correlated best with share of market, and so they made this -- they made this examination. And at the bottom they point out that "In spite of confounding effects, a regression model including differences in free nicotine, advertising expenditures and share of market of the 100's," which is a longer-length brand, "with difference in share of market as the dependent variable" -- so what they did is they tested to see if free nicotine or whether advertising expenditures or whether, as I understand it, loss of some of the 85 market to the 100 market were affecting the share of market that the 85s had. They say that relationship was explained and -- and they say "The variable resulted in 97 percent of the variability explained in the case of Winston 85s and Marlboro 85 and 95 percent of the variability explained in the case of Salem 85 and Kool 85. In both cases free nicotine contributed significantly to the model over and above the other factors."
And so out of this analysis came the conclusion that the distinguishing characteristic between cigarettes that were gaining in the marketplace versus cigarettes that were not was the free base nicotine that was being delivered to the consumer.
Q. Now doctor, when did American Tobacco Company begin ammoniation, approximately?
A. 1967.
Q. Do you know when they stopped?
A. They stopped ammoniating their -- their reconstituted material in the early '70s, but they still did maintain some diammonium phosphate in their casing through the '70s, and then they picked up later with ammoniation in the recon late in the '80s sometime.
Q. And where does American Tobacco sit in terms of share of market, relatively speaking?
A. Near the bottom.
Q. And with regard to Liggett, did Liggett ever use ammoniation?
A. Only just very recently.
Q. Okay. And where is Liggett's position in the -- in terms of share of market?
A. I think they may be at the bottom.
Q. Now I want to deal with the four remaining manufacturers.
Philip Morris. What's its rank, share of market?
A. Number one.
Q. Who was the first company to start ammoniating, of the -- of these four remaining?
A. Philip Morris was the first to start ammoniating in 1965.
Q. What company was the next to ammoniate?
A. R. J. Reynolds.
Q. What's their share of the market?
A. They're number two.
Q. What was the next company which started ammoniating?
A. Brown & Williamson.
Q. What's its share of the market? Where do they stand?
A. Number three.
Q. And finally Lorillard, when did it start ammoniating with respect to those four?
A. In the late '80s.
Q. Were they the fourth one?
A. They're number four.
Q. And with regard to those four, where do they stand in terms of share of market?
A. Lorillard?
Q. Yes.
A. They're fourth in line.
Q. Direct your attention to the series of questions Mr. Bernick asked you with regard to whether you -- if you add ammonia, all other things being equal, and then if you change the crop, all other things being equal, and he took one discrete parameter of cigarette design at a time and then excluded everything else. Is that the way cigarettes are made?
A. No.
Q. Does that bear any relationship to how the formulas are arrived at by these defendants, based on your review of the documents?
A. No. It's -- that was just very simplistic. It's much more complicated than that.
Q. Do you recall some questions about Mr. Dunn -- and I believe your attention was directed to the exhibit which related to the visit to the island of San Martin, north -- north or east of the Antilles. Do you recall that?
A. I recall that.
Q. Something about caffeine and alcohol that was written there?
A. Yes. He was making a comparison.
Q. Can you direct your attention to Exhibit No. 10539, which would be in volume one of the two plaintiffs' volumes in front of you. This is an admitted document. Little hard to make out, but we'll bring it in.
And this is a document to Dr. Wakeham from W. L. Dunn, Jr., "Jett's Money Offer." Do you recall we talked about that on direct?
A. Yes, I do.
Q. That's Jett Lincoln. He was the chief financial officer of Philip Morris at the time.
A. That's correct.
Q. Now with regard to --
I think, and I'm paraphrasing, but Mr. Bernick said something about what the employees thought, their feelings or opinions, did you ask them anything. What did Mr. Dunn say in terms of using the pharmic-medical model in this document, Exhibit 10539?
MR. BERNICK: Your Honor, the question that was put to the witness pertained to his review of what people had said under oath in this case.
MR. CIRESI: Well was counsel implying that they were not speaking the truth when they wrote internal documents?
THE COURT: Is there an objection there, counsel?
MR. BERNICK: Yes. The objection is that the question mischaracterizes the nature of the issue that was put to the witness on cross-examination.
THE COURT: Rephrase the question.
MR. CIRESI: I'll rephrase it.
BY MR. CIRESI:
Q. You were asked whether -- when they were under oath, what they said, and did you check to see what they said about various documents when they were under oath. Do you recall questions to that extent?
A. Yes.
Q. Okay. Now I just want you to assume for the purpose of this question that when Mr. Dunn wrote documents to his superior, he didn't lie. Okay? Can you assume that?
A. Well I -- I would -- I think that's a very reasonable assumption to make.
Q. That he wanted to tell the truth because he was imparting knowledge from himself to his superior. Can you assume that?
A. That's -- that's easy.
Q. Okay. Now having those assumptions in mind, in 1969, before there was a lawsuit, what did Mr. Dunn say with regard to using the pharmic-medical model publicly?
A. He says, "I would be more cautious in using the pharmic-medical model: do we really want to tout cigarette smoke as a drug?" Obviously, this model had implications that it was indeed a drug. "It is, of course, but there are dangerous FDA implications to having such conceptualization go beyond these walls."
Q. Now --
THE COURT: Counsel.
MR. BERNICK: Excuse me. Your Honor, once again, this pursues the issue of what was said publicly in the literature. I would love to go into that issue, been foreclosed from doing it so far, but I believe that counsel has now opened the door. So I object to this on the grounds of the scope of the examination that's been permitted, but I want to alert the court to the fact that I think we're walking right through the door.
MR. CIRESI: It does not -- this --
THE COURT: I'm not sure --
I think this is just in response to the one question. I don't think this quite opens the door. But I believe you better be cautious --
MR. CIRESI: I understand.
THE COURT: -- if you don't want the door opened.
MR. CIRESI: I understand. BY MR. CIRESI:
Q. Now this document, as we said, was written in 1969; correct?
A. That's right. It's February of 1969.
Q. Now let me direct your attention to another area that Mr. Bernick raised. You recall he was asking you about the Henderson Haselbach equation and what was the amount of free nicotine within the particle of cigarette smoke. Do you recall that line of questioning?
A. Yes. He had drawn a figure on the board and was asking me questions about the amount of free base that would be formed at -- at different pH's.
Q. And he was asking you questions regarding the individual smoker's perception. Do you recall that?
A. Yes, I do.
Q. Okay. Now you're not here to testify on addiction; are you, sir?
A. No.
Q. You're not a medical doctor.
A. No, I'm not.
Q. Okay. Now I just want to deal with the chemistry and what you're here to testify on.
Did you find in the defendants' files references to the speed with which free base nicotine would get into the blood system of a smoker?
A. Yes. That was clearly understood by the defendants, that the free base form of nicotine was advantageous to the rate of uptake of that drug by the body.
Q. Now having in mind your testimony that free base can refer both to the particle itself and to the vapor phase, --
A. Yes. It can only exist as free base in the vapor phase.
Q. -- what relevance, if any, does the Henderson Haselbach equation have with regard to the free nicotine which is not in the particles but in the vapor phase?
A. It only tells you the relative fraction of free base that's in the particle, but it does not tell you the relative fraction of free base, the total nicotine in the system, and so you can't use it directly to ascertain what the free base concentration or amount is in the vapor phase. It only tells you how much has transformed to free base in the little liquid droplet. So --
And as we saw, at pH's around six, for instance, it's only what appears to be a small amount, maybe one -- one percent in the droplet is free base, but that doesn't tell you what's in the vapor, and it's what's in the vapor that is controlling the concentration at the wall of the alveoli which is setting the rate of nicotine transfer into the blood.
Q. And doctor, were there documents of the defendants which addressed this very issue?
A. Yes. There are documents in the defendants -- from the defendants in which free base was actually measured. And this is what's key: not calculated, but measured. And what you see when you look at those documents is that even at a pH as low as 4.8 where the fractional conversion in the liquid to free base is tenths or hundredths of a percent, which would seem to be just deminimus, the free base in that system -- the amount of free base in that system, vapor plus the droplet, was as high as 12 or 13 percent, and by the time you get up to levels of, say, 6.4, which represents cigarettes that are commercially available, and particularly this was done with a Merit cigarette, the free base concentration -- free base amount, the total amount of free base in the system, 50 percent, five zero percent, even though the Henderson Haselbach equation would tell you that the amount of free base in the droplet at a pH of 6.4 is only about two percent. And this is because it only talks to the liquid phase and not to the vapor phase, and -- but it's the vapor phase that's key.
So you can see that you can be misled by just buying into the Henderson Haselbach equation as a means of determining what the real importance is, and that is, how much is total -- of the total nicotine, how much is free base? And you can see that you can get very, very significant amounts with really very little changes in the pH. Going from 4.8 to six, it can go from 12 to 50 percent. That's significant. And that's why it's such a critical and important issue to this industry. Which is why, in their research and development laboratories, they drove and they drove and they worked and they worked to manipulate nicotine in such a way as to take advantage of this, and they never told anybody outside of the walls of their research and development citadel they were doing this.
MR. CIRESI: Thank you, doctor. I have no --
MR. BERNICK: Move to strike the last statement. Again, it exceeds the scope of direct examination. We were not permitted to pursue the issue of what was said to people on the outside.
THE COURT: Well, I'll let the answer stand.
MR. CIRESI: Thank you, doctor.
THE COURT: Why don't we recess for lunch, reconvene at 1:40.
THE CLERK: Court stands in recess to reconvene at 1:40.
AFTERNOON
THE CLERK: All rise. Court is again in session.
THE CLERK: Please be seated.
MR. BERNICK: Good afternoon.
RECROSS-EXAMINATION BY MR. BERNICK:
Q. Good afternoon, Dr. Robertson. I think we're probably on the home stretch here.
Q. I just want to follow up on two areas that were covered on redirect examination.
First, with regard to the fortunes of the different companies, I think you told us that Philip Morris started first with ammoniation and now is number one?
A. Yes.
Q. And then you said Reynolds is number two and B&W is number three and Lorillard is number four. Was that your testimony?
A. That's my understanding of the relative rankings, yes.
Q. But in point of fact, the company that was actually second to start using ammonia was the American Tobacco Company; correct?
A. Yes. And we covered that in the redirect.
Q. And it turns out that American Tobacco, even though it used ammoniated recon from the late 1960s, couldn't make an impression on its market share decline even after using ammonia for upwards of ten years; correct?
A. In terms of relating it directly to ammoniation, that appears to have been the case.
Q. And when American started to use ammonia again in the late '80s and early '90s, isn't it true that ammonia did nothing to help it recover its market share?
A. You're right. It's sort of like a company who might come out with -- let's say in the automobile industry, they come out with a fuel injection system, and suddenly, because of the fuel injection system, their sales take off. And then somebody else comes along and says, "Boy, we better put fuel injection into our automobiles." And they might be able to tag along on that. And then the third comes along and so forth. But at some point it tends to lose its uniqueness. And I can't track exactly what happened in terms of American Tobacco Company because I don't know what else was going on that would affect their share of market with regard to advertising or to the taste of their products or other of the many variables that account for one's share of market.
Q. But in point of fact, American, with its fuel injection ammoniated recon, was never able to enable it to use it to recover market share; correct?
MR. CIRESI: Objection, asked and answered.
THE COURT: You can answer it again.
A. Well they started and they stopped and they started again, and they didn't -- they didn't recover. The other ones took off in order and that order still remains.
Q. Well let's talk about that.
Isn't it a fact that Lorillard actually has the number two brand today?
A. I think we're --
I was talking about the overall rankings of the companies in terms of sales --
Q. Oh.
A. -- as opposed to a particular brand within them.
Q. I'm talking about the brands.
Lorillard is a small company, but it's got the number two brand in the country; correct?
A. I'm not aware of that.
Q. Do you know what the number --
Do you know what brands Lorillard makes?
A. I'm drawing a blank on that.
Q. Okay. Do you know why it is --
Brown & Williamson has a Kool product; right?
A. They do have the Kool product, that's right.
Q. Do you know what the competitive Kool product is between B&W and Lorillard; that is, what Lorillard uses in the menthol area?
A. Newport or --
I'm just guessing because I'm just not pulling it out of my head right now.
Q. Do you know why it is that B&W's -- do you know what the differences are --
Well let me ask you this: B&W now comes out with its product. Do you know how B&W's ammoniated recons have competed with Reynolds' ammoniated recons?
A. In what way?
Q. In any way. Do you know how these brands here at B&W have fared versus Reynolds' brands?
A. Brand by brand, no, I don't have that in my head.
Q. Any kind of brand in any kind of way.
A. Well I gave you the relative overall rankings. That was the -- that was what I did.
Q. What you talked to me about was the size of the companies, but you really don't know whether in fact the competition between the brands has anything to do with pH; do you?
A. Well if you say do I know or do I not know, I would certainly expect that to be the -- be the case, but I don't have details that I can give you one against one, I mean in my head.
Q. You can't testify as an expert as to how the brands compete among one another and whether they do on the basis of pH; correct?
A. Well what I can tell you is that within each company, pH and nicotine manipulation, of which pH is a form, is very important in terms of the -- where a brand -- or how a brand -- how a brand behaves in the marketplace. I mean that was clear from the -- from the documents.
Q. Today, can you tell us that pH is a significant factor in competition between brands? "Yes" or "no."
MR. CIRESI: Well I'm going to object to that. Discovery was cut off as of 1994.
MR. BERNICK: As of 1994.
THE COURT: Objection is sustained.
Q. As of 1994. Excuse me.
A. Certainly -- certainly the documents point to that, clearly, that pH was a very important consideration in distinguishing brands.
Q. 1994, can you tell us any two brands and how they competed on the basis of pH?
A. Well I can tell you what I saw in the documents, and what I saw in the documents was, yes, pH was a very important factor. We -- we all saw them together with regard to brand distinction and share of market.
Q. Again in 1994, can you tell me how pH played into the competition as between any two brands?
MR. CIRESI: Objection, asked and answered.
THE COURT: It's been asked and answered.
Q. You said that ammonia --
I think you characterized some of these charts that isolated the contribution of different elements as being simplistic. Do you remember your testimony on redirect examination?
A. Well that's because the -- the entire cigarette construction is -- involves many, many variables, of which the ones we talked about were among them, but certainly not all of them.
Q. Let's take Brown & Williamson's recon and all of the different factors that go into that recon, recon in its totality. Isn't it a fact that if you add more and more Brown & Williamson recon to the blend, pH goes down rather than up?
A. Well do you have some data you want to show me? I'll take a look at it.
Q. Do you know?
A. Because if -- because if you're adding more and more recon, you're taking out something else, and I don't know what effect that's going to have.
Q. In fact, the ammoniated recon that's used is lower in pH than the traditional burleys; correct?
A. Typically the recons are.
Q. And could we --
A. The paper recons.
Q. Including the ammoniated recons. The ammoniated recons are lower in pH than the traditional burleys that go into cigarettes; correct?
A. You're talking about the pH of the substrate itself?
Q. Talking about the pH of the recon. When the recon comes out the end of the plant, Brown & Williamson's ammoniated recon at the end of the plant, isn't it true that the pH's are lower than the burley tobaccos that traditionally have been used?
A. Well there's a variation in pH in terms of the burley tobaccos, and the pH of the smoke is not necessarily well correlated to the pH of the substrate anyway, and that's what counts.
Q. Well can you answer my question? Is the pH -- is the pH of the recon that comes out of the end of B&W's plant lower than the burleys that had been traditionally used?
MR. CIRESI: Objection, Your Honor, asked and answered.
THE COURT: You can answer that.
A. Well I don't know what recon's coming out of what plant with what pH. This varies all over the place. And if you talk about the pH of burley in just one fell swoop, that varies as well. And what I told you was the pH of the substrate itself does not represent what the pH of the smoke is going to be necessarily.
Q. Let's go back to the second area that you covered on redirect, which is the threshold-level-of-addiction proposal that was made by Dr. Benowitz in 1994. It's this one here, it's GK16. Could you get that in front of you? It's volume one, tab 19. Doctor --
Do you have that in front of you? I'm sorry, Dr. Robertson. Do you have that in front of you? This is actually a -- ends up being a proposal that's made by Dr. Benowitz; correct, a possible strategy for regulation?
A. Yes, it's a -- it's a suggestion by Benowitz and Henningfield as to what should be done in order to reduce the number of millions and millions of premature deaths caused by tobacco use. That's what it says.
Q. Under their proposal smoke deliveries have come down, and they talk about what to do to get a threshold for nicotine that is low enough -- that nicotine down here -- that is so low that people won't get addicted. That's basically what they're proposing; right?
A. Yeah. They propose a level of nicotine in cigarettes that they believe to be such that, when smoked, they will -- and when smoked even intensively, they will be below an addictive threshold, and that will improve the situation.
Q. Okay. Now they note at the back page that other researchers have proposed a strategy -- that is, this one -- other researchers have proposed the introduction of safer cigarettes that are enriched with nicotine in order to reduce the ratio of tar to nicotine. Do you see that?
A. Yes.
Q. And that -- that would be a proposal where the tars have come down, but nicotine is raised so as to give people more nicotine, enabling them to smoke less tar. That would be what's discussed here; correct?
A. That appears to be the case, yes.
Q. And if you take a look at who it is that they're talking about here, that was a proposal made by M. A. Russell 20 years ago, 1976; correct?
A. That's who they reference.
Q. Okay. And the theory driving this proposal is that people -- if you take the nicotines down, they'll compensate, and to prevent them from compensating, you give them the nicotine so that they won't compensate, they'll just get the lower tar; correct?
A. They said, "Rationale for such cigarettes is that smokers would need to inhale less smoke to obtain the desired dose of nicotine."
Q. So the rationale is that compensation generally takes place, and the idea is to stop it; right?
A. No. I think the idea here is to stop people from being addicted.
Q. I understand that. But you stop them from being addicted by delivering a lot of nicotine, thereby enabling them to stay with the lower tar delivery; correct?
A. I don't understand that.
Q. The idea is that in order to get people to smoke down here at those low tars, you'd give them enough nicotine so that they won't compensate upwards. That's the whole rationale for that proposal; right?
A. No. Sounds to me like all they are talking about here is lowering the tar, which they felt would be a safer cigarette, but with the nicotine levels up in the addictive range, the people are still addicted, and it goes on to say that that strategy involving nicotine-enriched cigarettes might reduce morbidity and mortality from cigarette smoking, but the reduction would probably be limited, because even at reduced doses tobacco smoke is highly toxic.
Q. I understand.
A. Which gave rise to Henningfield's and Benowitz's proposal.
Q. I understand that. That's what we're reading.
The first sentence says, "It should be noted that other researchers have proposed the introduction of safer cigarettes that are enriched with nicotine in order to reduce the ratio of tar to nicotine. The rationale for such cigarettes is that smokers would need to inhale less in order to obtain the desired dose for nicotine."
The whole idea is to have those nicotine levels be high; right? That's what it says.
A. That's what it says, and that, of course, would still potentially put people in the situation where they're addicted so that they're still getting tar. Even though the tar levels are low, as they say in here, that's a problem, because the tar is still toxic.
Q. So their proposal is different. What they're proposing is to bring the nicotine deliveries all the way down; correct?
A. Their reason for doing that is so people --
Q. Is that what -- is that what their proposal is, Dr. Robertson?
A. You interrupted me.
Q. I understand. But you're telling me the reason, I'm just asking the proposal.
THE COURT: Counsel, counsel, let him finish his answer, please.
MR. BERNICK: Go ahead.
A. What they're proposing, which is very distinctive from the other proposal, is to assure people are no longer addicted to the product. Then, in their proposal, the problem will begin to disappear with time because there will be no reason for people to smoke or to continue smoking, and in the long term they won't be taking in tar.
Q. Their proposal assumes that overcompensation -- what are their words -- appears not to persist; correct? That's what they say.
A. They refer to someone else, and that's what they quote --
Q. That's what they quote.
A. -- from somebody else's work.
Q. From somebody else's --
You don't think that they subscribe to this?
A. I don't know if they do. They certainly --
They quoted it, but I think perhaps when they -- when they wrote this, they may not have known as much about compensation as the industry did. They probably weren't playing with a full deck of cards.
Q. Oh, I see. So you think that this is something they said, but they didn't know the truth?
A. They didn't know --
They didn't have all the facts.
Q. So you don't think that this represents an informed opinion.
A. It represents someone's informed opinion, but I don't know if it's informed enough.
Q. Let's talk --
A. It certainly doesn't --
Q. -- about threshold --
Sorry?
A. It certainly doesn't square with what are in the documents.
Q. Let's talk about what that threshold is.
Could you tell me, looking over to the other page, what the threshold is that they propose for nicotine?
A. Well they talk about a target daily dose of five milligrams of less to avert -- to avert addiction.
Q. It's five milligrams or less per day; right?
What do they say per cigarette?
A. "An absolute limit of .4 to .5 milligrams of nicotine per cigarette should be adequate to prevent or limit the development of addiction in most young people."
Q. Okay.
A. "At the same time, it may provide enough nicotine for taste and sensory stimulation."
Q. Okay. Now I want you to tell me all of the cigarettes that are on the marketplace which meets that threshold.
A. Well this is the most that they could extract out of a cigarette, and the lowest cigarette on the market that I'm aware of is .1 milligram. But of course that's not the delivery they're talking about here.
Q. No? What is it?
A. No, because that's the FTC delivery.
Q. Okay.
A. You can take a Merit at .1 milligram and smoke it up to more than .5.
Q. Okay. First let's deal with the FTC deliveries. Is it true that there are FT -- there are a number of cigarettes that are put out that have FTC deliveries below the threshold mentioned in that article?
A. I wouldn't know if it's "a number," but there -- I do know there are cigarettes that are reported FTC less than .4.
Q. Now?
A. Excuse me?
Q. Now cigarettes?
A. Oh. I believe so. Now, Carlton, Merit.
Q. Do you know what the rated delivery --
Do you know what the actual deliveries were for the Next product when it was out on the marketplace, Philip Morris Next product?
A. What do you mean "actual deliveries?" They can be anything you want --
Q. Okay.
A. -- within the range.
Q. When they measured the Next product in the machine, what were the deliveries?
A. Well I think that once you get below a certain level, the --
The machine is not all that sensitive. As I recall, when you get below the .05 levels, it's just -- less than .05. I think it was in that -- in that range. It was below .1.
Q. Now if we assume for purposes of your testimony that what Drs. Henningfield and Benowitz said when they said overcompensation appears not to persist was a statement of their own views and their own article -- I want you to assume that for purposes of my question -- isn't it a fact that all of these different products in fact do meet the threshold that was suggested by Benowitz and Henningfield?
A. Well if you're saying that you can take a Next -- a Next product and people are going to smoke it and not attempt to overcompensate and leave it, which is what happened, that's kind of a imaginary hypothesis here because you've already tested that in the marketplace and shown that it doesn't work.
MR. BERNICK: Move to strike as non-responsive, Your Honor.
THE COURT: It is non-responsive.
Q. I want you to assume, Dr. Robertson, that what these researchers, these authors said when they said overcompensation appears not to persist, that that's true. I want you to assume that that statement in that article is true. Is it a fact that the companies have indeed put out several different products that come in below the threshold recommended by Benowitz and Henningfield?
A. Well if you -- you're going to coral me into a situation, which evidently is not the case based on your own documents, and you tell me that people can't smoke those up to the .4 or .5 milligram limit, then they'd be below the .4 or .5 milligram limit which -- which they suggested. And I think it's fair to say that even -- even that is a suggestion, because they point out, as I recall in the article, that that in itself -- let's see where it was. "That restricting levels of nicotine would prevent addiction needs to be verify empirically. There is concern that for already addicted adult smokers, reducing the nicotine level in tobacco might result in more intensive compensatory smoking with increased exposure to toxic combustion products such as carbon monoxide and tar."
So this is a proposal. They're not quite sure how it's going to work out, but that's the direction in which they want to move.
Q. I don't think that I've clearly communicated the assumption that I want you to make. I want you to assume that Benowitz and Henningfield --
Those people are authorities in the area of compensatory behavior; are they not?
A. Well I know they've written about it, and I would -- I would presume they know a lot about it, yes.
Q. I want you to assume that those people, who are authorities in the area of compensatory behavior, were saying that -- were saying -- correct me -- that overcompensation appears not to persist, not that people can't smoke more if they want to, but that they don't long term, I want you to assume that they're correct in the statement that they've made.
If you assume that they're correct in the statement that they've made, isn't it a fact that all of these brands are below the threshold?
MR. CIRESI: Objection to the form of the question. It's compound, and also it's been asked and answered.
THE COURT: It's been asked and answered.
MR. BERNICK: Thank you. I have no further questions, Your Honor.
MR. CIRESI: Just one, doctor.
Q. Did the defendants' documents over 30 years --
THE COURT: Counsel.
A. -- reflect --
MR. CIRESI: I have to -- I'm sorry, Your Honor.
Q. Did the defendants' documents over 30 years reflect that smokers compensated and that the defendants knew?
MR. BERNICK: Objection, it's leading and it's simply repetitive of direct examination and redirect.
THE COURT: You may answer that.
A. Yes, they knew, and they designed for it.
MR. CIRESI: I have no further questions. Thank you, doctor.
THE COURT: You may step down.
MR. CIRESI: Your Honor, we have to move a lot of materials to get the next witness and move the Elmo. Could we take like maybe a five-minute break?
THE COURT: All right. We'll take a short recess.
THE CLERK: Court stands in recess.
THE CLERK: All rise. Court is again in session.
(Without Jury)
THE CLERK: Please be seated.
MR. BERNICK: Thank you for hearing this objection, Your Honor.
With regard to Trial Exhibit 21905 and 21951, these are documents as to which privilege has been claimed by American Tobacco Company. Those privileges have been timely lodged and have been recorded in accordance with the court's procedures. We understand that, according to Your Honor's prior order, they were directed to be produced to the other side, and we are not here to re-argue any aspect of that. We do believe, however, that these documents remain privileged documents and should not become before the jury, and we're prepared to address that issue.
I didn't want to have to raise the issue in front of the jury. I didn't believe that was appropriate.
There's also a cover letter -- I don't happen to have it here with me right now. It's been previously, I believe, noted to the court in papers submitted to the court -- goes along with 21905, which is important to its privileged status, and I just want to make sure the record is clear on that.
So we believe these documents should not come before the jury, both because they're privileged and due to their privilege status because of Rule 403 considerations, and we will urge the court not to allow them into evidence.
THE COURT: Counsel.
MS. WALBURN: Good afternoon.
Both of these documents were encompassed by the court's order of December 30 striking certain things as privileged by American Tobacco for sanctions for failure to produce relevant documents during the long discovery period. In addition to striking those claims of privilege and that basis, neither document is properly subject to a claim of privilege either because it's subject to the crime fraud exception or because it merely discusses scientific research and not information that would be covered by the attorney-client or work-product privileges.
I believe the court is familiar with both documents and I won't cite them in detail here until the court rules, but I would point out that counsel for American, Mr. Bernick, has repeatedly throughout this trial made specific references in cross-examination of witnesses relating to American documents knowing full well the status of discovery. Simply put, these are among the few probative documents we have with respect to American Tobacco. The court has already ruled on the status of privilege. The test now is whether the documents are relevant, and both are clearly relevant to these proceedings. One discusses admissions of causation with respect to beagle inhalation test experiments, admissions that the tobacco industry to date has not made publicly, and the other document explicitly references lawyers' impressions of biological research in the 1960s.
THE COURT: The only rulings remaining as to those two documents are relevance, and you may make that objection at the time of their introduction.
MR. BERNICK: Thank you. Would that also include Rule 403 considerations?
THE COURT: That's correct.
MR. BERNICK: Thank you.
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor. Plaintiffs call Mr. Walker Merryman for cross-examination as an adverse witness under the rules.
MR. BLEAKLEY: Your Honor, we would ask the court to instruct the jury as to what the technical meaning of an adverse witness is so they'll understand what it means.
THE COURT: You will come --
Please be seated.
THE WITNESS: Okay.
THE COURT: You will come to learn that there is a process which allows a party to call a witness, many times this will be a witness that is a representative of the other side, and they have the opportunity to bring them to the witness stand, and he will -- it will be obvious in most instances -- be a witness that is adverse to the interests of the party calling him. And because of that, the witness that's being called will be subject to what we call -- what used to be called cross-examination under the rules, but the net effect of it is to allow the party calling this witness to ask leading questions, because it in most instances will be assumed that this witness's interests are adverse to the party that called him.
So you'll see that the questioning that will be asked will be leading questions, and he will be treating him as what we would term a hostile witness, although I trust Mr. Merryman will not necessarily be hostile.
MR. BLEAKLEY: Thank you, Your Honor.
THE CLERK: Please state your name for the record.
THE WITNESS: Walker Merryman.
THE CLERK: Thank you. Please have a seat.
ADVERSE EXAMINATION - WALKER N. MERRYMAN
WALKER N. MERRYMAN
called as a witness, being first
duly sworn, was examined and testified
as follows:
ADVERSE EXAMINATION BY MR. CIRESI:
Q. Good afternoon, Mr. Merryman.
A. Good afternoon.
Q. You and I haven't met before, sir?
A. We have not.
Q. Okay. You are employed by The Tobacco Institute?
A. Yes, sir.
Q. You've been employed by The Tobacco Institute since approximately 1976; correct?
A. Yes, sir.
BY MR. CIRESI:
Q. Before that you were a -- is it a TV announcer?
A. I was a newsman.
Q. Okay. And that was down in Iowa?
A. Among other places. Iowa, South Dakota, Nebraska. Yes, sir.
Q. And how long were you a newsman?
A. I served in that capacity in a number of places for about five or six years.
Q. Did you read the news, or were you an investigative reporter?
A. Well I prepared newscasts, I wrote them, produced them. In addition, I researched and prepared documentary broadcasts. I also was on occasion an anchorman.
Q. And the documentary broadcasts that you prepared, those would be investigative documentaries?
A. Yes, sir, to an extent.
Q. Now sir, you're presently the vice-president, director of communications for The Tobacco Institute?
A. Yes, that's right.
Q. How long have you held that specific position?
A. Since approximately 1981 or '82.
Q. When you assumed employment with The Tobacco Institute in 1976, what position did you hold?
A. The position title was assistant to the president.
Q. And who was the president at that time?
A. Horace Kornegay.
Q. And how long had Mr. Kornegay been the president as of 1976?
A. I believe Mr. Kornegay became president of the institute in 1971.
Q. How long did he remain as president after you started with The Tobacco Institute in 1976?
A. Mr. Kornegay retired in the mid-1980s. I -- I don't recall the date.
Q. And his successor was whom, sir?
A. Samuel Chilcote.
Q. And how long did Mr. Chilcote hold the position of president of The Tobacco Institute?
A. Mr. Chilcote remains in that position today.
Q. Have you served as an assistant to him in addition to your job as a vice-president, director of communications?
A. No. My position is vice-president and director of communications.
Q. Can you describe for the ladies and gentlemen of the jury and the court your general duties as vice-president, director of communications for The Tobacco Institute?
A. Generally speaking, I'm responsible for responding to inquiries from the news media. If we get a call from a reporter, it's my job to try to respond to that reporter if I can, if I have the information, and if it's something that we can respond to.
Q. Do you respond to issues regarding smoking and health?
A. On occasion. If the reporter asks, we do, yes, sir.
Q. And do you specifically respond to inquiries?
A. Certainly not all of them. We might not have the information. But on occasion we have, yes, sir.
Q. And I'm asking now just about you. Let's put The Tobacco Institute aside for a minute, Mr. Merryman.
Have you yourself responded to specific inquiries regarding smoking and health, inquiries directed to The Tobacco Institute by the media?
A. I myself have responded to questions from reporters about smoking-and-health issues, yes, sir.
Q. And would it be fair to state that from the time you started in 1971 right up to today, you have never admitted, as the spokesman for The Tobacco Institute, that smoking causes lung cancer?
A. I began with the Institute in 1976, rather than 71 as you stated.
Q. Excuse me, 1976.
A. It's quite true that the position of the Institute that I have articulated is that we don't believe it's ever been established that smoking is a cause of disease.
Q. So that it would be fair to state that, not only with regard to lung cancer, with regard to any disease, you on behalf of The Tobacco Institute have never stated that smoking causes any disease; is that correct?
A. I've never stated that we believe it's been proven that smoking causes disease, yes, sir.
Q. Are you married, sir?
A. I am.
Q. Any children?
A. No, sir.
Q. Are you a smoker?
A. No, sir.
Q. When did you quit?
A. Oh, about a year and a half ago.
Q. Now during the course of your career from 1976 up to the present time in working for The Tobacco Institute, have you had an understanding with regard to who funds The Tobacco Institute?
A. Yes, sir, it's very clear who funds the Institute. The member companies, the companies that manufacture tobacco products.
Q. Okay. So Philip Morris funds it?
A. Philip Morris is one of our members, yes, sir.
Q. RJR funds The Tobacco Institute?
A. R. J. Reynolds, yes, sir, they're a member as well.
Q. Brown & Williamson?
A. Yes, sir.
Q. American?
A. No, sir, American is not a separate company.
Q. Was American a member of the Institute before it was purchased by Brown & Williamson?
A. From time to time it was, yes, sir.
Q. Lorillard --
A. Yes.
Q. -- funds the Institute?
A. Yes, sir. Lorillard is one of our members.
Q. And Liggett was a membership -- a member, excuse me, of the Institute?
A. They have been in the past. They are not presently.
Q. And they ceased to be a member in 1995?
A. I'm sorry, sir, I don't know when that was.
Q. Well you know that it was when they admitted publicly that smoking was addictive; isn't that correct?
A. I don't know that, no, sir.
Q. Weren't they asked to leave at that time?
A. That's really an administrative detail that's not something I'd be aware of, sir.
Q. You mean you're the vice-president of communications, Liggett quit or was forced out, and you didn't even ask?
A. That's not something that I'd be aware of. No, sir.
Q. Just had no curiosity about why Liggett left?
A. Liggett decided to leave, or however it occurred; it's not something that was brought to my attention.
Q. You didn't talk to Mr. Chilcote about that?
A. No, sir.
Q. You didn't talk to anybody in The Tobacco Institute about that?
A. No, sir.
Q. You didn't call up any of the other tobacco companies and say, "Say, why did Liggett leave?" Nothing like that?
A. No, sir. That doesn't seem to be something that I would need to know in the general course of my business.
Q. Just not a matter of concern at all; is that right?
A. If a company makes a decision or a decision is made with respect to that company, there's not really anything that I can have an impact on with respect to that decision.
Q. Well, let's see if we can get a temporal association.
Would you agree, Mr. Merryman, that the time that Liggett left was the time that they publicly admitted that cigarette smoking was addictive?
A. I can't tell you when Liggett left. I simply don't recall. It doesn't -- it didn't make an impression on me.
Q. What --
Didn't Liggett enter into a settlement with various states around the country and it was the first settlement ever by a tobacco company? Isn't that true?
A. That's not an issue that we at The Tobacco Institute would have talked about to the news media.
Q. That's not --
A. That's not something that we were -- that we were authorized to speak to the news media about.
Q. But you were --
A. So it's not something, sir, that I would have had information on.
Q. But you watch TV; don't you?
A. Oh, I'm generally aware of it, sir, but beyond that I don't have any specific knowledge of it.
Q. You watch TV; don't you?
A. I occasionally do.
Q. Read the papers?
A. Yes, sir.
Q. Listen to the radio?
A. Sometimes.
Q. Try to keep abreast of what's going on in your industry?
A. Yes, sir.
Q. And there was tremendous publicity, wasn't there, about the fact that Liggett admitted that cigarette smoking was addictive?
A. I don't know if I could characterize the nature of the publicity. Certainly there was some.
Q. Ahh. So you were aware of it then.
A. I was aware of some publicity. As I said, I was generally aware of the subject.
Q. And at that time was when Liggett left The Tobacco Institute; isn't that right?
A. I do not know, sir.
Q. Just don't recall.
A. I do not.
Q. Don't know one way or the other.
A. I do not.
Q. Well you would agree, would you not, sir, that it's indisputable as a general proposition that if someone is addicted to a substance, they do not have free choice of deciding whether or not to use that substance?
A. It seems to me that if someone is truly addicted, as I would use that word, then free choice probably doesn't enter into it.
Q. It would be indisputable; wouldn't it, sir?
A. I don't know if I'd use the word "indisputable." I think I'm comfortable with my answer to your question.
Q. All right. Can you look at your deposition up there and direct your attention, please, to page 449.
And first of all, Mr. Merryman, do you recall having your deposition taken on July 15th and 16th of 1997?
A. Yes, sir, I recall the deposition.
Q. And you recall you were under oath at the time?
A. Yes, sir.
Q. Okay. And please direct your attention to page 449 of that deposition. And did you give the following answer to the following question:
"Question: But you would agree as a general proposition that if someone is addicted to a substance, they do not have free choice in deciding whether or not to use it?
"Answer: I -- I think that -- as that's stated, it's indisputable."