ADVERSE EXAMINATION - WALKER N. MERRYMAN STATE OF MINNESOTA
DISTRICT COURT COUNTY OF RAMSEY
SECOND JUDICIAL DISTRICT
File No. C1-94-8565
The State of Minnesota, by Hubert H. Humphrey, III, its attorney general, and Blue Cross and Blue Shield of Minnesota,
Plaintiffs,
vs.
Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, B.A.T. Industries P.L.C., Lorillard Tobacco Company, The American Tobacco Company, Liggett Group, Inc., The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc.,
Defendants.
TRANSCRIPT OF PROCEEDINGS
VOLUME 15, PAGES 2877 - 3126
FEBRUARY 9, 1998
ADVERSE EXAMINATION - WALKER N. MERRYMAN 1P R O C E E D I N G S.
THE CLERK: All rise. Ramsey County District Court is again in session, the Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning.")
THE COURT: Counsel.
MR. CIRESI: Thank you, Your Honor. Good morning, ladies and gentlemen.
(Collective "Good morning.")
MR. CIRESI: Mr. Merryman.
(Witness resumes the stand.)
THE CLERK: Mr. Merryman, could you please remain standing and raise your hand.
(Witness resworn.)
THE CLERK: Please state your name for the record.
THE WITNESS: Walker Merryman.
BY MR. CIRESI:
Q. Good morning, Mr. Merryman.
A. Good morning.
Q. Can you direct your attention once more to Exhibit 14452, which is in volume one in the two
volumes in front of you.
A. All right.
Q. You'll recall when we recessed Friday we were asking you questions concerning the ability of the drug companies to manipulate nicotine and to keep proprietary information that may relate to that issue. Do you recall where we were when we recessed?
MR. BLEAKLEY: Objection, Your Honor.
First he said "drug companies;" I think he may have misspoken.
MR. CIRESI: Well it was a Freudian slip.
Q. Cigarette companies. Do you recall where we were?
A. Yes, sir. We were talking about the tobacco companies, yes, sir.
Q. Okay. And you recall where we were in the testimony?
A. Yes, I believe I do.
Q. Now this press release which was issued on March 25th, 1994, related to testimony that a Charles Whitley provided to Congress; correct?
A. It summarized testimony from Mr. Whitley and two scientists, yes, sir.
Q. And specifically addressing Mr. Whitley, did he testify in front of Congress on that day?
A. Mr. Whitley did testify before a congressional subcommittee, yes, sir.
Q. And did the subject matter of his testimony concern whether or not the FDA would regulate tobacco as a drug?
A. Can I just read the document, sir, just --
Q. Certainly.
A. -- take a moment to do that?
Q. Look at the bottom two paragraphs, it might help you.
A. Yes.
All right, I've read that.
Q. Is your answer yes?
A. Would you repeat the question?
Q. Was the subject matter of his testimony the regulation by the FDA of tobacco as a drug?
A. Yes, sir.
Q. Have you testified in front of Congress on behalf of The Tobacco Institute?
A. I have, sir.
Q. When you testify, you obtain information from the member companies of The Tobacco Institute; correct?
A. Yes, sir.
Q. You prepare yourself for testimony; correct?
A. Yes, sir.
Q. You intend to provide the full truth; correct?
A. I certainly intend to provide as -- as much information as possible in my statement and in response to questions from the members of Congress.
I don't know if that ends up being the full truth.
Q. Do you intend to provide the full truth on the issues that you're asked about?
A. I certainly try to.
Q. That's your purpose; correct, sir?
A. Yes, sir.
Q. That would be Mr. Whitley's purpose when he's speaking on behalf of The Tobacco Institute; correct?
A. With respect to an issue that he's addressing, I assume that he would want to provide the full truth as he understood it and knew it.
Q. The tobacco industry in 1994 was resisting attempts by the FDA to regulate it as a drug; correct?
A. The -- the tobacco industry was opposed to attempts to regulate cigarettes as drug-delivery devices, yes, sir.
Q. And you undertook to make representations to the public with respect to that issue during that period of time; correct?
A. Yes, we did, particularly when asked to do so by the news media.
Q. Well you not only did it when you were asked to do so by the media, you unilaterally provided information to the public; didn't you, sir?
A. This was a matter of some controversy, and certainly we hoped the public would be interested in our perspective. Certainly, yes, sir.
Q. So that you, on your own volition on behalf of the industry, disseminated information on that subject; correct?
A. We disseminated the industry's perspectives, certainly, on this subject and others, we certainly did.
Q. Did you intend to convey the truth when you disseminated that information as the industry knew it regarding that subject?
A. Certainly we intended to distribute truth, facts, information as we knew it, yes, sir.
Q. Did you ask any of the member companies for their information in their files with respect to whether they considered a cigarette a drug-delivery system?
A. I did not personally, no, sir.
Q. Did you ask anyone at The Tobacco Institute to
obtain such information from the defendants?
A. I did not, no, sir.
Q. Did anyone at The Tobacco Institute, to your knowledge, ask for that information?
A. I have no knowledge of that, no, sir.
Q. Did you have any discussion with anyone in The Tobacco Institute with regard to whether we shouldn't get that type of information from the drug -- or from the tobacco companies?
A. We certainly discussed the issue within The Tobacco Institute about what constituted a drug-delivery device, and it was the information we received that the companies did not consider a cigarette to be such a device, and that was the information that we gave to the public and to members of Congress.
Q. You received that information from the companies, sir?
A. Yes, sir.
Q. You received it from Philip Morris?
A. Our member companies, including Philip Morris --
Q. Did you receive it from R. J. Reynolds?
A. -- gave us that information.
Q. I'm sorry. I missed --
A. Correct.
Q. I'm sorry, I interrupted you.
A. R. J. Reynolds is a member, and yes, they would have given us that information, yes.
Q. Brown & Williamson, did they give you that information?
A. Brown & Williamson is a member of the Institute.
They would have given us that information.
Q. Did American Tobacco at that time give you that information?
A. American Tobacco, I believe, was a member of the Institute at that time. They would have given us that information.
Q. Did Liggett give you that information at that time?
A. I believe they were a member in 1994 and they would have given us similar information, yes, sir.
Q. So that every one of the members of The Tobacco Institute who are defendants in this case told you at that time that a cigarette is not a drug-delivery system; correct?
A. Yes, sir, that's my information.
Q. Did you talk to any scientists within the company?
A. No, sir, I don't typically talk to scientists.
Q. Did you talk to anyone yourself within the
companies regarding that issue, you personally?
A. I don't know if I personally did. There were others at the Institute who were -- who were responsible directly for that issue at that time.
Q. But they talked to the lawyers; didn't they, sir?
A. Oh, I suppose on occasion you'd talk to lawyers to make sure what you're saying is accurate.
Q. Didn't the information that you obtained with regard to that subject come from the lawyers and not the companies?
A. Well certainly any information that we give to the public on behalf of our members comes from our members. Certainly we talk to lawyers as well to make certain what we're saying is accurate. That's why we ask our attorneys to look at news releases to make certain they're accurate.
Q. That wasn't my question, Mr. Merryman.
At that time, didn't you obtain the information from the lawyers and not the companies? "Yes" or
"no."
A. No, it's my -- it's my recollection that this information comes from the companies, sir.
Q. Did it come from the companies through the lawyers, if you know?
A. It may have. I don't know.
Q. Isn't it a fact that when you obtain external-source information regarding smoking and health, you obtain it from Shook, Hardy & Bacon, a law firm?
A. Some information comes from law firms, but we certainly evaluate external-source information ourselves and have prepared on our own information on a wide variety of issues, including smoking and health.
Q. Do you obtain smoking-and-health information from the law firm of Shook, Hardy & Bacon? "Yes" or
"no."
A. Yes, on occasion.
Q. And in 1994 did you obtain the information from that law firm with regard to whether or not a cigarette is a drug-delivery device?
A. We may have received some information from that law firm in 1994. I don't recall specifically what it may have been or how much, if we did.
Q. Did you obtain any information from LRD at that time regarding the cigarette as a drug-delivery device?
A. LRD?
Q. Yes.
A. I don't know what that is.
Q. Do you know that as a division of CTR?
A. No, sir, I don't.
Q. Never heard of it.
A. I don't believe so. LR -- LRD?
Q. Correct.
A. No.
Q. Have you ever heard of L. S. Inc.?
A. L. S. --
Q. Inc.
A. No. No, sir.
Q. Okay. Now Shook, Hardy has compiled industry documents for decades; have they not?
A. They've represented tobacco companies for decades. That's certainly a fair statement, sir.
Q. And you have obtained documents from that firm for decades with regard to smoking-and-health issues; correct?
A. Well on occasion, certainly, they will provide us with documents from the scientific literature.
That's what I remember.
Q. Now can you direct your attention, Mr. Merryman, to Exhibit 13155.
A. All right.
Q. This is an RJR document which is in evidence,
stamped "SECRET," entitled "IMPLICATIONS AND ACTIVITIES ARISING FROM CORRELATION OF SMOKE pH WITH NICOTINE IMPACT, OTHER SMOKE QUALITIES, AND CIGARETTE SALES." I'd like to direct --
It's, by the way, is written by a Claude E.
Teague, Jr. Do you know Mr. Teague?
A. I've never met him.
Q. Have you read some of his documents?
A. I've heard his name, and I believe I may have seen a document or two of his that you've selected for this deposition -- or for this litigation.
Q. Have you ever --
A. And perhaps in my -- and perhaps in my deposition.
Q. Did you ever see any of his documents before this litigation?
A. I don't believe so, no, sir.
Q. Did you ever see this document before this litigation?
A. I don't believe so, no, sir.
Q. Can you turn to the page which has number two at the top, "SMOKE pH AND FREE NICOTINE."
A. All right.
Q. "In essence, a cigarette is a system for delivery of nicotine to the smoker in attractive,
useful form." Do you see that?
A. Yes, I see that.
Q. Did you have discussion about that with RJR in 1994, around the time of the congressional hearings?
A. No, sir.
Q. Did you have any discussion with RJR regarding free nicotine and its manipulation?
A. No, sir. As I mentioned before, I'd not seen this document before just a few days ago, perhaps a few weeks ago.
Q. I'm just asking you now about the subject matter. Did you ever have discussions --
A. The answer --
Q. -- with anyone at RJR about the manipulation of free nicotine?
A. No, sir.
Q. Did you have any discussion with anyone at The Tobacco Institute regarding that subject matter in 1994?
A. No, sir.
Q. Have you ever had any discussion with anyone at The Tobacco Institute regarding that subject matter?
A. Regarding free nicotine, no, sir.
Q. Do you know if Mr. Whitley saw this document in before he testified before the congressional
committee?
A. I don't know what documents Mr. Whitley may have looked at, no, sir.
Q. You didn't see it before you gave any statements; correct?
A. That is correct.
Q. Can you direct your attention to Exhibit 12408.
This is a document entitled "RJR CONFIDENTIAL, RESEARCH PLANNING MEMORANDUM ON THE NATURE OF THE TOBACCO BUSINESS ON THE CRUCIAL ROLE OF NICOTINE THEREIN."
Can you direct your attention to the first page, sir.
A. All right.
Q. This again is a memorandum prepared by Mr.
Teague on April 14th, 1972.
By the way, do you know who Dr. Senkus is at RJR?
A. I believe I have met him once or twice.
Q. Did you ever talk to him about the manipulation of free nicotine?
A. No, sir.
Q. Did you ever talk to him about the subject matter of the cigarette as a drug-delivery device?
A. No, sir, I don't believe I did.
Q. You --
A. I haven't -- I haven't seen or talked to him in a long, long time.
Q. He was the head of research and development at RJR?
A. I don't know what his position was when I met him briefly.
Q. Well, do you know if he was ever the head of research and development at RJR?
A. I do not.
Q. Did you ever ask him what his position was?
A. I only knew he was in research.
Q. On this page it states, "In a sense, the tobacco industry may be thought of as being a specialized, highly ritualized and stylized segment of the pharmaceutical industry. Tobacco products, uniquely, contain and deliver nicotine, a potent drug with a variety of physiological effects."
Did Mr. Whitley testify to that at the congressional hearings?
A. I don't recall that Mr. Whitley used those words, no, sir.
Q. Did he say anything near those type of words, that it was a potent drug?
A. Not to the best of my recollection, no, sir.
Q. Did Mr. Whitley ever say that any of the defendants were part of a highly ritualized and stylized segment of the pharmaceutical industry?
A. No, sir.
Q. Did they ever tell you that was their internal belief?
A. No, no one ever told me that was an internal belief of any company, no, sir.
Q. When's the first time you saw this document?
A. Either at my deposition, or perhaps in preparation for this litigation, it was one of the ones that you'd picked out.
Q. Did you ask to see other documents from the defendants' lawyers when you were shown this one?
A. I was shown this one because it was one you had selected, I understood.
Q. Did you ask to see any others?
A. I had a lot of documents that you'd asked me to look at. I had time to look at those and no more.
Q. Okay. Other than the ones that your lawyers told us -- told you we were going to use, did you ask to look at any other documents?
A. No, sir. Just wasn't time.
Q. Your only job is with The Tobacco Institute; isn't it?
A. Yes, sir.
Q. Can you go down a little bit in that paragraph where it says -- toward the -- toward the bottom it starts, "Thus a product...." Do you see that?
A. Where it begins "Thus a tobacco product is...?"
Q. Correct.
A. All right.
Q. "Thus a tobacco product is, in essence, a vehicle for delivery of nicotine, designed to deliver the nicotine in a generally acceptable and attractive form."
Mr. Whitley did not tell Congress that; did he?
A. No, sir.
Q. You did not say that publicly on behalf of the tobacco industry; did you?
A. No, sir, I have not.
Q. None of the defendants said that on behalf of the tobacco industry at that time; did they?
A. Not that I'm aware of, no, sir.
Q. None of the defendants ever said that before that date; did they?
A. If they did, I'm not aware of it, no, sir.
Q. It goes on to state, "Our industry is then based upon design, manufacture and sale of attractive dosage forms of nicotine, and our company's position
in our industry is determined by our ability to produce dosage forms of nicotine which have more overall value, tangible or intangible, to the consumer than those of our competitors."
Did any of the member companies, the defendants in this case, tell you at any time that the industry was based upon the design, manufacture and sale of attractive dosage forms of nicotine?
A. No, sir.
Q. Did you ever state that publicly at any point in time anywhere in this country, sir?
A. No, sir.
Q. Did you ever state it anywhere in the world?
A. No, sir.
Q. Do you know if the industry ever stated that anywhere in this country?
A. Not to the best of my knowledge.
Q. Can you direct your attention to page four of this document, and I'd like to direct your attention specifically to the bottom paragraph. And please take the time to read it.
You see there that Mr. Teague is referring to two types of customers, the pre-smoker or non-smoker, and an individual who is already a confirmed smoker?
A. Yes, sir.
Q. Now do you see that Dr. Teague's referring to the fact that nicotine is unknown and largely unexplained to the non-smoker?
A. That's what he says.
Q. Did any of the defendants ever tell you that non-smokers largely do not know about nicotine?
A. No, sir, I don't recall anyone ever telling me that.
Q. Did you ever have any discussion with anyone at RJR or any of the defendant companies regarding that subject matter?
A. No, sir.
Q. Did you have discussion with RJR or any of the defendant companies with respect to the fact that most starters are youth?
A. Most people who start smoking are youth did you say?
Q. Correct.
A. I am sure that that's been discussed. I know it's been discussed in connection with the initiatives that the industry has undertaken to attempt to discourage young people from smoking.
Q. We'll get to those, sir.
Have you had that discussion with the industry?
A. In general terms, yes, sir.
Q. And you're aware, are you not --
A. With people at the companies, yes, sir.
Q. Pardon me?
A. I've had that discussion with people at the companies, yes, sir.
Q. Then you are aware, are you not, that over 80 percent of smokers start before the age of 18?
A. I believe the number is less than 80 percent, but it's substantial in any case, yes, sir.
Q. And you're aware that the defendants targeted those individuals; correct?
A. No, I'm not aware of that, sir.
Q. You've seen documents in this case which reflect the fact that they targeted those individuals.
A. I've not seen documents which demonstrate to me that the companies or any company has targeted kids as smokers -- as customers. I've seen documents which -- which list observations about the number of kids who smoke.
Q. I'm going to hand up a document to you that's in another book.
A. Okay.
Q. I believe you have them up there, sir. They're on your right.
A. All right.
Q. Can you go to the recross book, volume one, Exhibit 12493.
Do you have it, sir?
A. I do.
Q. Okay. This is an RJR 19970 -- 1975 marketing plan presentation to the board of directors at Hilton Head, September 30th, 1974?
A. Yes, sir.
Q. You've reviewed this document?
A. Can you give me a moment? I'm not certain I have.
I don't believe I have.
MR. CIRESI: Your Honor, we'd offer Exhibit 12493.
MR. BLEAKLEY: Excuse me just a moment, Your Honor.
No objection.
THE COURT: The court will receive 12493.
BY MR. CIRESI:
Q. Can you direct your attention, first of all, to the first page. It says "PRESENTATION TO THE RJRI BOARD OF DIRECTORS, 9/30/74, MARKETING PLANS," do you see that?
A. Yes, sir, I do.
Q. Can you turn to the next page then.
A. Uh-huh. All right.
Q.
MARKETING PLANS PRESENTATION, HILTON HEAD, SEPTEMBER 30, 1974." And they stated first of all their objective in 1975; correct?
A. That's correct.
Q. And the objective is "Our paramount marketing objective in 1975 and ensuing years is to re-establish RJR's share of marketing growth in the domestic cigarette industry." Do you see that?
A. Yes, sir.
Q. "Paramount." That's the same word we saw in the Frank Statement; is it not, sir?
A. That's a word that's common to both documents, yes, sir.
Q. And in the Frank Statement the defendants in this case said, "We accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business." Correct?
MR. CORRIGAN: Your Honor, objection. The phraseology "defendants" in this case is not correct with respect to that document. I ask that the question be rephrased.
THE COURT: I'm sorry, I don't understand the objection.
MR. CORRIGAN: Your Honor, Mr. Ciresi in
describing the document just now said the defendants in this case made the statements in the Frank Statement. He knows that's not true.
THE COURT: Rephrase the question, counsel.
BY MR. CIRESI:
Q. Well, the defendants who are listed down below here made that statement; correct, sir, that are listed on this document?
A. Yes, sir.
Q. And Brown & Williamson is one of those companies; correct?
A. Yes, sir.
Q. And they're part of the family of B.A.T; correct?
A. I believe so, yes.
Q. And you have an understanding that B.A.T provides research and development to B&W?
MR. CORRIGAN: Objection, Your Honor. I ask for Mr. Ciresi to be specific when he says B.A.T.
Is he talking about BATCo or B.A.T Industries?
THE COURT: Would you like to be specific, counsel?
MR. CIRESI: We'll take both.
Q. Are you aware that BATCo provides research and development?
A. I really don't know what the connections or synergies are between B.A.T or BATCo and Brown &
Williamson.
Q. Have you looked at their documents in this case?
A. I have looked at some documents, yes, sir.
Q. You know they share research and development; don't you?
A. I don't know that, no, sir.
Q. Well you know it from the documents; don't you?
MR. BLEAKLEY: Objection, asked and answered, Your Honor.
THE COURT: It's been asked and answered.
Q. Now directing your attention back to Exhibit 12493, the chart two talks about four key opportunity areas to re-establish RJR's share of the marketing growth; correct?
A. Yes, it does.
Q. Number one is stated "Increase our young adult franchise." Do you see that?
A. Yes, I do.
Q. And when they define young adult, they define that as the age group from 14 years old to 24 years old; don't they?
A. Well apparently, although he says -- he says in reference to 1960, so apparently that's what he means
in 1960. I don't know if that's what he means in 1974.
Q. This is a 1974 document; correct, sir?
A. Yes, it is. But he's speaking of --
Q. Excuse me.
A. -- something from 1960.
Q. It is a presentation to the board of directors; correct?
A. Yes, it is.
Q. And then he says, "Let's look at the growing importance of the young adult in the cigarette market." Correct?
A. Correct. Correct.
Q. And he says, "In 1960, this young adult market, comma, the 14-to-24 age group, comma, represented 21 percent of the population." Correct?
A. Correct.
Q. Then he goes on to say, "As seen by this chart, they will represent 27 percent of the population in 1975." Correct?
A. That's correct.
Q. He says, "They represent tomorrow's cigarette business." Correct?
A. That's what he says.
Q. "As this 14-to-24 age group matures, they will
account for a key share of the total cigarette volume - for at least the next 25 years." Correct?
A. Yes.
Q. So those people today would be somewhere between, what, 39 and 49 years old?
A. Approximately, yes, sir.
Q. If you go on to the next page, next to chart four, you see a comparison of Philip Morris and Brown
& Williamson with regard to this young adult group, the age 14 to 24; correct?
A. That is correct.
Q. And with respect to that young adult group age to 24, it is reported that Philip Morris had a 38 percent share and Brown & Williamson a 21 percent share; correct?
A. Correct.
Q. And if we go down to chart six, they start comparing by age Winston and Salem, which are RJR's products, versus Marlboro and Kool; correct?
A. That is correct.
Q. And it is reported there to the board of directors that Winston is at 14 percent in the 14-to-24 age group versus Marlboro at 33 percent, and Salem is at nine percent versus Kool at 17 percent; correct?
A. That is right.
Q. Now Kool is a Brown & Williamson cigarette; correct?
A. Correct.
Q. Salem is an RJR; correct?
A. Yes.
Q. If you go to the next page you'll see that the strategy that was going to be implemented by RJR is explained to the highest level of the corporation, its board of directors; correct?
A. This was a recommendation he made, yes, sir.
Whether it was carried out, I have no -- I have no way of knowing.
Q. Sir, this is a statement made to the board of directors at Hilton Head Island on September 30, 1974; correct?
A. Yes, uh-huh.
Q. Did you see any documents that said they didn't carry this out?
A. I saw none that said they did or did not, no, sir.
Q. My question was did you see any that said they did not?
A. I saw no documents that said they carried this out, no, sir.
Q. Did you see any document which said we can't do this, we will not sell to children of 14 years of age? Did you see any such document?
A. I certainly have seen documents consistently from the companies in the years I have been at The Tobacco Institute which said very clearly they don't want kids as customers.
Q. Did you see any document which said we will not sell to 14-year-olds in carrying out this strategy?
"Yes" or "no."
A. I did not see any document that said we will not carry out this strategy, nor did I see any document which said we will carry out this strategy.
MR. CIRESI: Move to strike everything after "or" as not responsive.
THE COURT: I'll let the answer stand.
Q. Can you direct your attention now to the strategy. "Direct advertising appeal to the younger smokers." Do you see that?
A. Yes, sir, I see it.
Q. And down below under chart eight, "Research has shown that among young adults, the new Winston ads generate twice as much recall as any previous Winston campaign and are 40 percent more persuasive compared to the Marlboro campaign." Correct?
A. Yes, sir, I see that.
Q. Now you said you didn't see anything in their documents that said they did or didn't carry out a marketing strategy; didn't you, sir?
A. That's correct.
Q. You just said that; didn't you?
A. Yes, sir.
Q. And right here it says they are reporting to the board of directors that research has shown that among these young adults age 14 to 24, the new Winston ads generate twice as much recall as any previous Winston campaign and are 40 percent more persuasive compared to the Marlboro campaign; correct?
A. That is an observation of the data that they've made, yes, sir.
Q. And if you direct your attention, sir, to the page which bears the Bates number 1316, which talks about the media campaign of RJR with regard to this strategy, "We have also increased our media efforts toward young adults for our brands." Do you see that?
A. I see it, yes, sir.
Q. That is speaking to the fact that RJR has already taken action with regard to young adults; correct?
MR. BLEAKLEY: Your Honor, I object.
That's argumentative. The document speaks for itself. And Mr. Merryman was not involved in these campaigns.
THE COURT: You may answer it if you know.
A. I don't know.
Q. Wouldn't you agree it's reasonable to conclude that from the statement?
MR. BLEAKLEY: Objection.
Q. "We have also increased our media efforts toward young adults for our brands."
MR. BLEAKLEY: Objection, Your Honor. Now he's asking the witness to speculate.
THE COURT: The objection is sustained.
Q. Does it report in there what specific undertakings RJR has done with regard to media efforts toward young adults?
A. It does.
Q. "Increased advertising insertions in young adult magazines like Sports Illustrated, Playboy and Ms.;"
correct?
A. That's what it says.
Q. "New young adult special interest magazines;"
correct?
A. Yes, sir.
Q. "Expanded outdoor with selective locations for maximum young adult exposure." Correct?
A. That's correct.
Q. It also talks about special events and promotional activities in this document, doesn't it?
You go on two more pages.
A. Yes, that's correct.
Q. Talks about heavy involvement at event site, permanent billboard advertising, and brand exclusivity at concession stands; correct?
A. Where are you in the document, sir?
Q. Two pages forward, next to chart 17.
A. Yes, that's correct.
Q. RJR says we're going to sell our branded event-
related items such as Winston hats, shirts and jackets; correct?
A. That is what it says, yes, sir.
Q. And they're going to have tie-in banners and posters with strong brand identification and brand commercials over the public address systems; correct?
A. That is correct.
Q. Can you direct your attention to Exhibit 13101.
A. Yes, I have it. I'm sorry, sir.
Q. This is an RJR document to Mr. Horrigan from G.
H. Long; correct?
A. Correct.
Q. You know Mr. Horrigan?
A. Yes, I do.
Q. He was president of RJR?
A. He was.
Q. Also president of -- was it Brown & Williamson?
A. No, I don't believe Mr. Horrigan was ever president of Brown & Williamson.
Q. Only RJR; correct?
A. He was president of R. J. Reynolds, yes, sir.
Q. And in 1980 you were at The Tobacco Institute; correct?
A. I was, yes, sir.
Q. And you were on TV saying that RJR and the other defendants didn't target youth; correct?
A. That is correct, that our -- that's our industry policy.
Q. The policy. That's the written policy; right?
A. Yes, sir.
Q. Just like the policy that cigarette doesn't cause any illnesses; correct?
A. That's not our policy. Don't misstate it, sir.
We don't know if it does.
Q. Oh, okay. Your policy is that you don't know if it causes illness or not; is that right?
A. That's one of the things we believe, yes, sir.
Q. Okay. Another policy is that smoking isn't addictive; correct?
A. I don't believe it is, no, sir.
Q. That's another policy; isn't it?
A. That is correct, yes, sir.
Q. Now while you were on TV on behalf of the industry speaking about these policies, the companies were marketing to youth; weren't they?
A. I don't know that to be a fact, no, sir.
Q. Can you direct your attention, then, to this 13101.
MR. CIRESI: And we'd offer it, Your Honor.
THE COURT: Is there any objection?
MR. BLEAKLEY: I'm sorry. Was that introduced?
THE COURT: 13101.
MR. BLEAKLEY: Sorry, Your Honor. No objection.
THE COURT: Okay. 13101 will be received.
BY MR. CIRESI:
Q. Now this is a report from a Mr. Long to the president of the company, E. A. Horrigan, Jr.; correct?
A. Correct.
Q. And it's attaching a report concerning teen-age smokers age 14 to 17; correct?
A. That is correct.
Q. And it's July 22nd, 1980; correct?
A. It is.
Q. And at that very same time, just so the record's clear, you were saying that the industry wasn't marketing to youth; weren't you?
A. That's correct.
This -- this document appears to offer some observations on youth smoking, and that's all I see here.
Q. Now this report to the president of the company reads as follows. "Last January, a report was issued on this subject that indicated that Philip Morris had a total share of 59 among 14- to 17-year-old smokers, and specifically, Marlboro had a 52 share."
Now does that mean percent?
A. I suppose it would be percent.
Q. Okay. And you know that "means" share of the market for that age group; isn't that right?
A. Typically that's what it means, yes, sir.
Q. That's what you've come to understand it to mean during the course of your dealings on behalf of the tobacco industry; correct?
A. That is correct, yes, sir.
Q. And here in 1980 Mr. Long was telling Mr.
Horrigan about the youth market and what share the various companies had; correct?
A. That is correct, yes, sir.
Q. And it is reported to Mr. Horrigan, the president, that the latest report indicates that Philip Morris's corporate share has increased by about four points but Marlboro remains the same; correct?
A. That is correct.
Q. It is also reported to Mr. Horrigan, the president of RJR, that RJR's share is decreasing in that market; correct?
A. Correct.
Q. And Mr. Long reports to Mr. Horrigan what RJR is going to do in the fall to remedy that situation; correct?
The last line, sir.
A. Mr. -- Mr. Long does make that statement, yes, sir.
Q. He says "Hopefully" -- and "hopefully" refers to the fact that they're going to hopefully increase their share in that market; right?
A. I don't know what he means, but he does say
"hopefully."
Q. Okay. But that's fair to conclude that's what he means; isn't it, Mr. Merryman?
A. I think that's one conclusion you could reach.
Q. "Hopefully, our various planned activities that will be implemented this fall will aid in some way in reducing or correcting these trends." Correct?
A. Correct.
Q. And you don't think that means that RJR was marketing to youth in 1980; correct?
A. I don't know what they ended up doing.
Q. Well let me ask it this way: Do you think this manifests an intent to market to youth in 1980?
MR. BLEAKLEY: Objection, Your Honor, calls for speculation.
THE COURT: Sustained.
MR. CIRESI: Your Honor, this is an individual who reports on behalf of this indistry and speaks to this issue.
THE COURT: The objection is sustained.
BY MR. CIRESI:
Q. Sir, did you ever ask anyone at any of these companies whether they were marketing to youth despite their policy?
A. Every communication I ever received from any of
the companies was that they weren't marketing or advertising their product to youngsters.
Q. Okay.
A. That was very consistent and has been consistent over the 22 years I have been at the Institute, sir.
Q. That's not what I asked you. I know what you want to say, and your counsel will have a chance to ask you -- ask you questions. See if you can answer mine.
Did you ever specifically ask anyone at any of these defendants whether they were marketing to youth while you were out voicing a policy that they weren't marketing to youth? Did you ever ask them that?
A. I never asked them directly because they always made it clear what their policy was, what their position was.
Q. Not -- not once in 21 years have you ever asked the question; have you, Mr. Merryman?
A. No. It didn't seem necessary.
Q. Because they sent you materials saying they weren't; is that right?
A. Because every single communication was consistent on that subject. I believe it.
Q. Do you know if Brown & Williamson targeted 16-year-olds?
A. I believe there are some documents that I may have looked at in this litigation regarding that subject, but I can't recall for certain, sir.
Q. Do you know if they built their Newport business on the backs of high-school smokers based on documents you reviewed?
A. Brown & Williamson doesn't -- doesn't make Newports, sir.
Q. Excuse me. Kools. I misspoke.
A. I don't know if that statement is -- appears someplace.
Q. Did you see such a statement?
A. I may have. I don't recall, sir.
Q. Did you see statements that Philip Morris was marketing to youth?
A. Do you have a document that you'd like to talk about? I don't recall specifically seeing that.
Q. Do you recall --
A. If there's something you'd like to ask me about and show me, I'll be happy to try to respond.
Q. I will do that. I'm just asking you now if you recall in looking at these documents that Philip Morris marketed to youth.
A. I -- I may have. I just don't recall.
Q. Can you direct your attention to Exhibit 10299.
Do you know who Dr. Wakeham is?
A. I'm never met him, but I recall that he was in the research and development -- research and development at Philip Morris.
Q. Did you ever talk to him on the phone?
A. No, I don't believe I ever did.
Q. This is a presentation to the Philip Morris board of directors, November 26, 1969; correct?
A. That's what it says, yes, sir.
Q. Have you reviewed this document before?
A. I have seen this document, yes, sir.
Q. When did you first see it, sir?
A. In preparation for this litigation.
Q. Okay. Can you turn to the page which bears the last three Bates numbers 749.
A. All right.
Q. Now you understood this was a presentation to the board of directors at Philip Morris regarding smoker psychology research; correct?
A. That's what the cover page says, yes, sir.
Q. And did you read through to satisfy yourself that that's what this document was about?
A. I don't recall doing that specifically.
Q. Did you look at the document at all?
A. I looked at it.
Q. Okay. And did you find here that Dr. Wakeham was reporting to the board of directors with regard to smoker psychology for the age group 16 years old to 20 years old?
A. He mentions the 16- to 20-year-old age group.
Q. And he was reporting on their smoker psychology for that age group; correct, sir?
A. There is a portion that deals with that. I don't know that the entire report deals with that, but there is that portion, yes, sir.
Q. And in that portion of the report Dr. Wakeham reports to the board that for that age group, when they're asked about why they smoke, they either parrot an advertising slogan or they give one of the responses "It relaxes me or stimulates me;" is that right?
A. Well he reports that that's one of the -- one of the things that he's summarizing here, asking the smoker why the smoker smokes. Certainly he doesn't appear to say that that's the only reason why people smoke.
Q. I didn't ask you that. Did you understand --
If you don't hear my question or understand it, you let me know. Okay, Mr. Merryman?
A. Certainly.
Q. Okay. I didn't say that was the only reason. I asked you whether or not Dr. Wakeham reported to the board of directors that smokers will either parrot an advertising slogan or give one of two responses, "It relaxes me or stimulates me." Is that what he reported to the board?
A. That's one of the things he reported, yes, sir.
Q. And advertising slogans are the advertising slogans of these companies; correct?
A. Correct. I assume that's what he's talking about.
Q. And here he's talking about an age group from 16 to 20 years old; correct?
A. I believe so.
Q. Can you direct your attention to Exhibit 10497.
A. Yes, I have that.
Q. Have you seen this document before, sir?
A. I don't know if I've seen this one, sir.
Q. It's entitled "A Study Of Smoking Habits Among Young Smokers" prepared for Philip Morris Incorporated, July 1974. Correct?
A. That is right.
MR. CIRESI: We'd offer Exhibit 10497, Your Honor.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 10497.
BY MR. CIRESI:
Q. Title page is now on the overhead, and if you could direct your attention to the next page, there's a foreward and it talks about the purpose of the study; correct?
A. Yes, it does.
Q. And it says the questions that the study was designed to explore were six; correct?
A. That is correct, yes, sir.
Q. And those questions are as follows: Number one, "What is happening in the young market with respect to Marlboro nonmenthol and menthols;" correct?
A. Yes, sir.
Q. Number two, "In which segments of the age spectrum are Marlboro nonmenthol and menthols most popular?" Correct?
A. Correct.
Q. Three, "Are younger people starting with menthols or is there mass switching at some point?"
Correct?
A. Correct.
Q. Now I believe your previous testimony was that somewhere around two-thirds, you said, of young people start before age 18?
A. I couldn't recall the precise number. I believe you said 80 percent and I said I thought that sounded high. But I still don't recall the exact number.
It's substantial and too high, whatever it is.
Q. Okay. So when you're talking about young people starting, those are starters; correct?
A. Young people starting to smoke I suppose could be called starters, yes, sir.
Q. Do you know how many adults start smoking after the age of 21?
A. I don't know the precise number, no, sir.
Q. It's less than one percent. Does that ring a bell?
A. I don't know if that's accurate.
Q. Have you heard that number?
A. I don't believe so. Less than one percent? I don't think that sounds familiar to me.
Q. What have you heard?
A. I don't remember what I've heard on that subject.
Q. No recollection at all.
A. No, sir.
Q. Number four of the questions looked at in this exhibit, "Are smoking patterns different among young blacks, and how much more popular are menthols among
young blacks?"
Five, "Do more whites smoke menthols when some of their friends are black than when few or none of their friends of black?"
Six, "Is there a recognition among young people that menthols are growing in popularity?"
Now, did you review this document -- I -- I'm sorry. I think you said you didn't see this document; is that right?
A. I believe I was aware of it. I don't think I really focused on it. I don't think I saw it more than briefly.
Q. Did you become aware of it because you learned of it in this litigation?
A. That is correct, sir.
Q. So you had never seen it before the litigation; correct?
A. I don't believe I did, no, sir.
Q. Were you aware of the fact before the litigation that Marlboro was researching why young people start smoking and differentiating between blacks and whites or any other demographic group?
A. No. A company wouldn't share with us their research information, sir.
Q. Would they share with you the fact that they
were researching youth and when they start smoking?
A. As I said, I wasn't aware of this document before the -- before this litigation.
Q. So the only thing they shared with you was their policy that they would not market to youth; is that right?
A. They shared with us a great deal more than that in order to put a number of projects and programs in place to discourage youngsters from smoking and to encourage legislation to forbid the sale of cigarettes to youngsters.
Q. Do you know how much money this industry spends collectively marketing as opposed to what they spend on youth prevention?
A. I know what the numbers are for marketing expenditures and I know what the figures have been for discouraging young people from smoking, yes, sir.
Q. And from 1983 to 1994, would you agree that the amount spent on youth prevention is one one-hundredth of one percent of the amount spent on marketing and promotion?
A. I've not done the math. I don't know what that percentage is.
Q. If you assume that to be true, you would agree, would you not, Mr. Merryman, that there is a
tremendous disparity between what's spent on marketing and promotion as contrasted with youth prevention, one one-hundredth of one percent?
A. If one assumes that's true, the difference is great. However, that marketing expenditure is not marketing at youth, it's marketing for adult smokers.
Q. Oh. Because that's the policy; right?
A. That's been the consistent policy of the industry, and the industry has put resources behind that policy for many, many years.
Q. Yeah. One one-hundredth of one percent over 11 years.
A. I think a 35-million-dollar commitment in that area is substantial. Some may argue with it, but I think it certainly reveals a very substantial commitment to that policy.
Q. Compared to, what is it, 40 billion dollars over the same period -- excuse me, 27 billion dollars over the same period for marketing and promotion?
A. Well as I said, I -- I haven't done the math. I don't know what the -- what the total is.
Q. But you did --
A. But I think that the commitment the industry has made to discouraging youth smoking is substantial, and I think it demonstrates that the industry is very
serious about that policy.
Q. You did the math for how much they spent to prevent youth smoking; is that right?
A. That's in a document, yes, sir.
Q. Now --
And the math on marketing and promotion you apparently didn't do; correct?
A. No, sir, I didn't -- I didn't see the comparison.
Q. You wouldn't argue with the 27-billion-dollar figure for that period of time; would you?
A. I don't know what it is.
Q. Now directing your attention, sir, back to 10497, this survey conducted on behalf of Philip Morris required the interviewers to go to locations where young adults might be gathered in order to do the survey; correct?
Direct your attention to page two. It's part of the foreward.
A. Yes, sir, that's what it says.
Q. Okay. They were instructed to go to locations where young people, as described in their quota assignments, were likely to be found; correct?
A. That is correct.
Q. Near high schools and colleges; correct?
A. Correct.
Q. Around young people's hangouts, such as soda fountains, recreation areas, parks, bowling alleys, beaches, lakes, et cetera; correct?
A. That is correct.
Q. Now this would be contrary to the policy that you learned about through documents sent to you by the industry; correct?
A. Well if it resulted in a plan of marketing toward youth, it certainly would be. And I wouldn't agree with it.
Q. So the answer is yes, it would be against the policy; correct, sir?
A. If it resulted, as I said, in a marketing plan to target youth, it's something I wouldn't agree with and it would be contrary to -- to our policy.
Q. To the stated policy; correct?
A. Yes, sir.
Q. The one that's said externally; correct?
A. The one that's said what, sir?
Q. Externally, external to the companies, to the public.
A. It's -- it's the policy that we enunciated on behalf of the companies, yes, sir.
Q. And can you direct your attention to page four.
THE COURT: Counsel, counsel, I think we'll take a short break at this time.
THE CLERK: Court stands in recess.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
BY MR. CIRESI:
Q. Mr. Merryman, we were on Exhibit 4 -- or 10497.
10497.
A. Yes, sir.
Q. That's the Philip Morris study.
A. Yes, sir.
Q. Now if you go to page three, you'll see the title of that is the "SUMMARY OF MAJOR FINDINGS?"
A. It is, yes, sir.
Q. And if you turn to the next page, at the very bottom, do you see it's reported that this study by Philip Morris found that Marlboro was the starting brand for young whites and Kool the starting brand for young blacks? Do you see that?
A. That's what it says, yes, sir.
Q. And again, starters are predominantly youth; correct?
A. Doesn't say that.
Q. I didn't --
A. But from what we've discussed before, that's a reasonable assumption, I guess.
Q. Can you turn to page six, and at the bottom is there a reference with respect to what Philip Morris could do about what was found in this survey?
A. Yes, sir, there is.
Q. I'd like to read this portion, then ask you some questions.
"What can Philip Morris do about the situation?
We are not sure that anything can be done to halt a major exodus if one gets going among the young. This group follows the crowd, and we don't pretend to know what gets them going for one thing or another.
Certainly Philip Morris should continue efforts for Marlboro in the youth market, but perhaps as strongly as possible aimed at the white market rather than attempting to encompass blacks as well."
Now sir, did any of the companies, including Philip Morris, ever tell you that they were actually marketing in the youth market in the 1970s or '80s?
A. No, sir.
Q. Did they ever share these types of documents with you?
A. No. This would not have been shared with us, no, sir.
Q. So that if they were actually doing that, you didn't know about it; did you?
A. We didn't know anything about internal marketing plans. This is a recommendation. What came of it I have no way of knowing.
Q. If they were in fact marketing to youth, they didn't tell you about it; correct?
A. They would not have shared with us marketing plans for any segment, no, sir.
Q. So that you were not aware of their marketing to youth, if in fact they were doing that; correct?
A. We would not have been, as a trade association, aware of commercial planning by our member companies.
Q. They would have withheld that information from you; correct?
A. As a trade association I don't believe it would have been proper for us to receive information on their commercial plans, their marketing plans, no, sir.
Q. They would have withheld the information from you; correct?
A. Absolutely. I think it's very proper for them to do so.
Q. You would have been deceived with regard to what they were actually doing if in fact they were marketing to youth; correct?
A. We would not have received any information on --
on marketing at all.
Q. You would have been deceived.
A. Well since we don't receive information on marketing from our member companies, I don't think --
I don't think the use of the word "deceived" there is proper.
Q. Well if they were actually marketing to youth, you didn't know it; isn't that right?
A. We did not know anything about specific marketing plans that our member companies had because it simply isn't appropriate for a trade association to know that kind of thing.
Q. You were speaking on behalf of the entire industry saying that the industry was not marketing to youth; correct?
A. That was the --
Yes, that was the information that we received from our companies.
Q. And --
A. Our member companies.
A. -- if they were actually marketing to youth,
then you were deceived by them with regard to what they were doing; correct, sir?
A. If they were doing what you suggest, then we wouldn't have been given accurate information by the companies.
Q. You would have been deceived; correct?
A. But I don't believe that there is any showing that that in fact happened.
Q. Sir, if you weren't given accurate information, you would have been deceived; correct?
A. Correct.
Q. And you, on behalf of the entire industry, would have been deceiving the American public because you were saying they weren't marketing to children; correct?
A. That was our information, that they weren't.
That was the industry's policy, that was the industry's perspective on the issue, and we made certain that that policy was well known.
Q. You would have been deceiving the American public because you weren't provided the information; correct?
A. We weren't providing information on -- on marketing plans that our companies have, but I don't know that they ever had marketing plans, as you
suggest, to try to convince kids to begin smoking.
Q. You --
A. Just the opposite.
Q. You would have been deceiving the American public because they would not have provided the information; correct, sir?
MR. BLEAKLEY: Your Honor, I object at this point. I think it's getting very argumentative.
THE COURT: It's -- I think you've got the answer you're going to get, counsel. Maybe you should move on.
Q. You can't answer that question?
MR. BLEAKLEY: Objection.
THE COURT: Counsel, move on, please.
Q. Can you turn to Exhibit 11808.
A. I have that.
Q. Did Philip Morris ever tell you they dominated in the 17 and younger age category?
A. Philip Morris did not, no, sir.
Q. Did they ever tell you that they capture over 50 percent of that market?
A. I don't recall that, no, sir.
Q. Directing your attention to Exhibit 11808, have you ever seen this document before, a March 29th, memorandum of Philip Morris?
A. I don't believe I have, no, sir.
MR. CIRESI: We'd offer Exhibit 11808, Your Honor.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive Exhibit 11808.
BY MR. CIRESI:
Q. Sir, this is a Philip Morris document dated March 29th, 1979, regarding the subject matter of Marlboro. I'd like to direct your attention to that portion which says "Demographics."
A. All right.
Q. "Marlboro dominates in the 17 and younger age category, capturing over 50 percent of this market."
When a company captures a market, does that mean that company is marketing to that market?
A. It doesn't mean that to me.
Q. No relationship at all to you; correct?
A. It doesn't mean that the company is marketing to that segment.
Q. Can you direct your attention to Exhibit 11780.
Before you go there, sir, let me ask you to go back to 11808 for one minute. I'm sorry.
A. All right.
Q. Do you see reflected there the fact that
Marlboro represents 60 percent of Philip Morris U.S.A. sales?
A. Yes, sir, I see that.
Q. And that the brand accounts for one-third of all the growth of Philip Morris U.S.A.?
A. I see that.
Q. Based on this document, would it be fair to assume that that growth for Philip Morris came from youth?
A. I can't make that assumption, no, sir.
Q. Even though Marlboro was dominating in the 17 and younger category; correct?
A. That's what it says.
Q. Even though the vast majority of smokers who start are youth; correct?
A. That is correct.
Q. If you to turn to Exhibit 11780.
A. All right.
Q. 11780, --
A. Yes.
Q. -- you have it?
A. Uh-huh.
Q. This is a Philip Morris product testing short course. Have you seen this document before?
A. No, sir, I've not.
Q. Did you review this when it was provided to you by the lawyers?
A. This document is not familiar to me, no, sir.
MR. CIRESI: We'd offer Exhibit 11780, Your Honor.
MR. BLEAKLEY: I can't tell what this document is.
MR. CIRESI: It's a product testing document by Philip Morris dated January 23rd-24th, 1984.
MR. BLEAKLEY: All right. No objection.
THE COURT: The court will receive 11780.
BY MR. CIRESI:
Q. If we could go to the second page, we'll see what the full title is and who it was prepared by.
This is Exhibit 11780, "PRODUCT TESTING, SHORT COURSE," Mr. Ennis, Mr. Tindall, Mr. Eby, Product Evaluation Division, R&D department, Philip Morris, Richmond, Virginia, January 23rd-24th, 1984.
Can you go to the preface page there.
A. All right.
Q. And is the purpose of the short course set forth therein?
A. It appears to be.
Q. Let me read it. "In preparing for this short
course in Product Testing, there were two considerations. First, we intended to make sure that basic principles and traditional forms of product testing and analysis were covered. Second, we felt that it was important to communicate our latest thinking on how product testing should be conducted which involves some new, less tried concepts.
Research in the Product Evaluation Division, Research and Development Department in Richfield -- Richmond proceeds continually and so our knowledge of this subject continues to expand, creating new outlooks and new methodology. In this course we hope to provide both the backbone of our testing system and the general direction in which our thinking is headed for the future."
Now sir, can you direct your attention to page 7504, the last four Bates numbers.
A. All right.
Q. And this is part of the "Demographic Developments" section of this short course; correct?
A. That's the heading, yes, sir.
Q. And if you go to the second paragraph, do you see the following statement: "Marlboro floundered for eight years and then hit -- and then hit a responsive chord among post-war baby-boom teenagers
with a theme from the Magnificent Seven and an image uncalculatedly right for the wave of teenagers coming of smoking age."
Now sir, did you ever receive anything from Philip Morris in the 21 years you've been with The Tobacco Institute which set forth that Marlboro rose to prominence on teen-agers?
A. I've not seen this document before this litigation, no, sir.
Q. Did you ever have a discussion with anyone at Marlboro -- or at Philip Morris regarding that subject?
A. I don't recall a discussion specific to a brand with anyone at Philip Morris, no, sir.
Q. And you see the reference in the next section to Kool cigarettes?
A. Yes, sir.
Q. And you see there that there's a reference that Kool was the "in" menthol brand among young people?
A. I see a reference to Kool and -- and blacks, it says.
Q. Well let me read it. "While it is difficult to see anything in the Kool image that young people could associate with, Kool was apparently the 'in'
menthol brand corresponding to Marlboro, especially
among blacks." See that?
A. Yes, sir.
Q. And who manufactures Kool?
A. Brown & Williamson.
Q. Did you have any discussions with Brown &
Williamson about whether they market to youth?
A. Yes, sir.
Q. And have they told you that they targeted youth?
A. No, they have not said that they've targeted youth. Just the opposite.
Q. Can you direct your attention, then, to Exhibit 13723.
By the way, who at Brown & Williamson said the opposite?
A. The people with whom I usually have contact with in their public affairs and public relations divisions.
Q. Public affairs. Can you give me a name?
A. Tom Fitzgerald.
Q. Tom Fitzgerald.
Anybody else at Brown & Williamson tell you they did not market to youth?
A. Joe Helewicz.
Q. Is he in the PR department, too?
A. Yes, sir.
Q. Did you talk to any scientists or marketers at Brown & Williamson?
A. I don't have contact with scientists and marketers at any of the companies on a regular basis.
It would be very unusual for me to do that.
Q. And Brown & Williamson's public relations policy position was that they don't market to youth; correct?
A. The clearly-stated policy position of Brown &
Williamson and every other tobacco company is that they don't market to young people.
Q. If you could direct your attention, then, to Exhibit 13723.
A. Is that in volume two?
Q. It is. I'm sorry.
A. All right.
Q. This is a Brown & Williamson document; correct?
A. It appears to be.
Q. Have you reviewed this document?
A. I don't believe so.
Q. Did Mr. Fitzgerald or Mr. Helewicz ever review this document with you?
A. No, sir.
MR. CIRESI: Your Honor, we'd offer Exhibit 13723.
MR. BLEAKLEY: Your Honor, we do have an objection to this exhibit. There is no indication of the author. We don't know who the author is. This is not a business record. It's undated. It's a bunch of documents attached together. So we do object on the grounds of lack of foundation.
MR. CIRESI: This is a document produced by Brown & Williamson in this litigation as an ordinary business record. There was no objection made pursuant to court orders in this case.
THE COURT: All right. Court will receive 13723.
BY MR. CIRESI:
Q. The first page of this is entitled "Group I: High-Filtration/Low 'Tar' Products," and Group II, New Segmentation of Cigarette Market." Do you see that, sir?
A. Yes, I do.
Q. And can you direct your attention to page 6815.
A. All right.
Q. And is the -- is a direct target group set forth therein in this Brown & Williamson document?
A. There is.
Q. And does it refer to 16-year-olds to 25-
year-olds?
A. 16- to 25-year-old smokers, et cetera, yes, sir.
Q. And did Mr. Fitzgerald or Mr. Helewicz ever tell you that Brown & Williamson targeted 16- and 17-year-olds?
A. No, sir.
Q. Can you direct your attention, then, to Exhibit 13820, which is the next exhibit in your book.
A. All right.
Q. This is another Brown & Williamson document?
A. It appears to be.
Q. And have you reviewed this document?
A. I have not.
Q. Did Mr. Fitzgerald or Mr. Helewicz ever talk to you about this document?
A. I don't believe so, no, sir.
MR. CIRESI: Your Honor, we'd offer Exhibit 13820.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 13820.
BY MR. CIRESI:
Q. See the first page, it's to Mr. Pittman, who was an executive vice-president, from R. L. Johnson, a brand manager. I'd like to direct your attention down to paragraph three. Is there reported therein that "KOOL has shown little or no growth in the
26-plus age group," and that growth was coming from the 16-year-old to 25-year-olds?
A. That's what it says.
Q. And is there also reported that at the present rate, a smoker in the 16 to 25 age group will soon be three times as important to Kool as a prospect in any other broad age category?
A. That's what it says, yes, sir.
Q. Did you ever have a discussion with Mr. Helewicz or Mr. Fitzgerald about the fact that the 16- to 17-year-old, up to 25-, was the most important demographic market for Kool?
A. No, sir, that never was mentioned to me.
Q. Did they ever tell you they targeted those individuals?
A. No, sir.
Q. Can you direct your attention to the last page of this memorandum, and specifically -- I'm sorry, not the last page, it's the page that bears the Bates number 998.
A. All right.
Q. Do you have it?
And you see number three there, "KOOL'S stake in the 16- to 25-year-old population segment is such that the value of this audience should be accurately
weighted and reflected in current media programs. As a result, all magazines will be reviewed to see how efficiently they reach this group and other groups as well."
Now do you know what the term "accurately weighted" means?
A. No, I do not.
Q. You don't know what that means in terms of marketing?
A. No, sir.
Q. Did Mr. Fitzgerald or Mr. Helewicz ever talk about the fact that Brown & Williamson was targeting its media programs to reach 16- and 17-year-olds?
A. They never discussed marketing with me in any way.
Q. So if they were doing that, you were deceived with regard to that; correct?
A. We never received information on specific marketing plans by our member companies. It wouldn't have been appropriate.
Q. Well you were deceived, then, if they were actually marketing to those people; correct?
A. Well I -- I think my answer stands. We don't receive information about specific marketing plans from our member companies. It -- it wouldn't be
appropriate. We're a trade association and we have to represent them all, so we can't know of their individual marketing plans.
Q. They tell you that they don't market to youth; don't they?
A. That is correct.
Q. That's what they tell you their plan is; right?
A. That is their policy. They tell us exactly what they do and don't do with respect to that policy.
Q. But if they were doing it, they weren't telling you what they were actually doing; were they?
A. All the information I've ever received from our member companies is that they don't market to youth.
Q. If they were doing this, they didn't tell you, did they, sir? "Yes" or "no."
A. Well that's correct, because we wouldn't have specific information on any marketing that the companies do.
Q. So what you do as a trade association, you just take their word. They say we're not marketing to youth and you don't get any specific information from them; correct?
A. We don't get specific marketing information about what the companies are doing. As I said, I --
I can't see how that would be appropriate for a trade
association that has to represent all of the companies.
Q. So you don't know one way or the other whether they're lying to you or deceiving you, do you, based on their own documents?
A. Based on my experience over the last 22 years with the industry, I don't believe I've been lied to, no, sir.
Q. No, that wasn't what I asked you.
Based on their own documents, you don't know if you're being lied to or not; do you?
A. I don't believe these documents show that I've been lied to, sir.
Q. You don't.
A. No, sir.
Q. Do you think this document shows that they're marketing to 16- and 17-year-olds?
MR. BLEAKLEY: Your Honor, I object, this is getting argumentative.
THE COURT: Well, you may answer that question.
A. Would you repeat the question?
Q. Sure. Do you think this document shows that Brown & Williamson was marketing to 16- and 17-year-olds?
A. That's not my impression, no, sir.
Q. It's not.
Well let's go to the next document and see if they report whether they were successful. Can you turn to Exhibit 13679.
Do you have that, sir?
A. Yes, I do.
Q. Have you ever seen this before?
A. No, sir.
Q. This is from an advertising agency; isn't it?
A. It appears to be, yes, sir.
Q. It's a Brown & Williamson document; correct?
MR. BLEAKLEY: Objection, Your Honor. Mr.
Ciresi knows that it is in fact a Ted Bates document, not a Brown & Williamson document.
Q. Produced by Brown & Williamson out of their files. You know that, sir?
MR. BLEAKLEY: Objection.
THE COURT: Rephrase --
MR. BLEAKLEY: How would Mr. Merryman know if it was produced by Brown & Williamson?
THE COURT: Rephrase the question, then, counsel.
BY MR. CIRESI:
Q. Do you see at the top it says "(B&W) PROTECTED
BY MINNESOTA TOBACCO LITIGATION PROTECTIVE ORDER?"
A. Yes, sir, I see that.
Q. Do you see over on the side it says
"CONFIDENTIAL MINNESOTA TOBACCO LITIGATION?"
A. Yes, sir.
Q. Who's B&W?
A. That would be Brown & Williamson.
MR. CIRESI: Your Honor, we'd offer Exhibit 13679.
MR. BLEAKLEY: Your Honor, we do object to the receipt of this document. It is a third-party document, not a Brown & Williamson document.
MR. CIRESI: Again there was no objection pursuant to the court orders. It's a representative admission by the -- on the part of an agent. It's admissible under the business records exception, under the admission exception, the rule against hearsay, and it's to Brown & Williamson, as is indicated on the last page of the document.
MR. BLEAKLEY: It's not a representative admission, that's just argument, Your Honor. It's a document from an advertising agency, it is not a Brown & Williamson document. We don't deny that it was produced by Brown & Williamson during this case, but it is a document prepared by an outside
advertising agency.
MR. CIRESI: No objection to this document, Your Honor, and it's admissible under the rules I cited.
THE COURT: Was there any objection made, counsel?
MR. CIRESI: There was not.
THE COURT: Just -- I'm addressing my question to the --
MR. BLEAKLEY: I have to be honest, Your Honor, and tell you I don't remember whether there was or not.
THE COURT: Well I'll receive it at this time, and then if you could show me that there was an objection made, I'll strike it.
MR. BLEAKLEY: Fine. Thank you.
BY MR. CIRESI:
Q. Now this is the "Ted Bates new york/
advertising," it says in the upper right-hand corner?
A. Yes, sir, it does.
Q. And it's to Mr. M. O. Willson?
A. Mr. Willson, yes, sir.
Q. And if you go to the back page, you see carbon copies to Mr. Willots --
Do you know if he's the new product director at
Brown & Williamson?
A. No, sir, I don't.
Q. Do you know if Mr. Smoot is the product supervisor?
A. No, sir, I don't.
Q. And you see in the very first paragraph that B&W was being provided with the agency's analysis of the brand switching study?
A. It says something about a brand switching study, yes, sir.
Q. And it says that in the next paragraph, "It should be noted at the outset that Kool's two strongest market segments - the Black and young Smoker segments - are again under-represented in this wave of the study?"
A. That's what it says.
Q. Okay. And can you turn to the last page. I'm sorry, I misspoke, sir, the second-to-the-last page.
A. All right.
Q. Where it starts with "CONCLUSIONS."
A. All right.
Q. Number one, "Kool's effort against the 16 to 25 age group continues to be working. While the entire menthol category is above the industry average with this group, Kool continues to perform at an
exceptionally high level with both 85-millimeter and 99-millimeter sizes. Salem's share of this group is about half of Kool's. Only Newport 84 millimeter is on a level comparable to Kool's, and this we attribute to recent successes with the box in selected markets."
Did either Mr. Fitzgerald or Mr. Helewicz ever tell you that Kool's strategy marketing to 16- and 17-year-olds was working?
A. No, sir.
Q. Please take a look at the second conclusion.
"Kool's effort is successfully attracting new smokers."
Once again, sir, new smokers are predominantly young; correct?
A. Well I don't know if new smokers is meant to convey young in this context. I don't know what the writer meant.
Q. New smokers are predominantly young; correct?
A. People who start smoking for the first time might be considered to be in that category, but I don't know if that's what the writer meant here.
Q. Well let's read it. "While Kool's overall performance among the 16 to 25 age group is strong, it is not limited to this group in terms of starters.
Kool's starter level" --
That's who you think young people are, right, starters? Isn't that what you just said?
A. That's -- that's a definition that's been given to people under the age of 18 who start smoking.
Q. And that's what you just said because you want to say, "Well, I don't know who new smokers are.
Starters are young people." Isn't that what you just said?
A. That's what -- that's what I said because that's what's been defined as starters by some people.
Q. Okay. And this writer reports, "Kool's starter level is well above the average among all age groups and both sexes, with particular strength evidenced among female starters. Salem starter level remains close to the total menthol average." Isn't that right?
A. That's correct.
Q. So Kool was very successful among starters in accordance with this exhibit; correct, sir?
MR. BLEAKLEY: Objection, Your Honor, he's asking the witness to characterize the document and speculate about what was meant and what was done.
THE COURT: Sustained.
Q. Sir, did either Mr. Fitzgerald or Mr. Helewicz
ever tell you that Kool's starter level was well above the average of other cigarettes?
A. No, sir.
Q. Now you recall the Philip Morris document that talked about the Magnificent Seven and the teen-agers and what they're influenced by?
A. I recall a document from Philip Morris that mentioned some of those things, yes, sir.
Q. Exhibit 11780, the one we just dealt with.
A. I don't recall the number.
Q. But you remember we just dealt with that; correct?
A. Yes, sir.
Q. And I'd like you now to go back to Exhibit 12408, which is in the first volume of the cross documents. This is Mr. Teague's memo.
It will be in a smaller volume, sir. It will say cross, volume one.
A. Can you give me that number again?
Q. Certainly. 12408. You'll recall --
A. All right.
A. -- we were talking about that with regard to pre-smokers or starters and people who were confirmed smokers, and that's what led us off into all these youth documents. Do you remember that?
A. I -- I can't characterize the document in any particular way. I remember that we talked about it.
Q. Okay. If you go to page four, maybe that will refresh your recollection.
A. All right.
Q. Remember I asked you, in looking at the bottom part of that page, whether Dr. Teague wasn't referring to both young people, starters, and confirmed smokers?
A. Yes, sir. Uh-huh.
Q. And from there we went into all these youth documents that we just talked about.
A. Yes, sir.
Q. Remember that?
Now if I could direct your attention, Mr.
Merryman, to the sentence which says that the new smoker is unaware and has largely unexplained the nicotine and other physical and manipulative gratifictions of the cigarette. Do you see that?
A. I don't. Where are you?
Q. In the first full paragraph, it says, "He does not start smoking...." Do you see that?
A. All right.
Q. Okay. Right above that it says, "Paradoxically, the things which keep a confirmed smoker habituated
and 'satisfied,' i.e., nicotine and secondary and physical and manipulative gratifications, are unknown or largely unexplained to the non-smoker." Do you see that?
A. That's what he says, yes, sir.
Q. Okay. And Dr. Teague goes on to explain that the non-smoker does not start smoking to obtain these physiological gratifications; correct?
A. That's his view, yes, sir.
Q. And the non-smoker does not start to smoke to satisfy a non-existing craving for nicotine. Do you see that?
A. Yes, sir.
Q. And what's being referred to here are starter smokers; correct?
MR. BLEAKLEY: Objection, Your Honor. The witness has never seen this document. It speaks for itself. It either says that or it doesn't.
THE COURT: The objection is sustained.
Q. Do you know if what's being referred to are starters?
A. No, sir, I do not.
Q. Can't tell that by reading it; correct?
A. I do not know.
Q. Can you tell it from reading it, sir?
A. No, sir, I cannot.
Q. All right. You do know that youth, based on your experience at the tobacco industry, tend to smoke -- or start to smoke for purely psycological reasons; don't you?
A. That's not my impression, no, sir.
Q. Do they tend to start to smoke to emulate a valued image?
A. It's my impression that those kids who start to smoke do so principally out of peer pressure.
Q. Well, so peer pressure would be one; is that right?
A. Yes, sir.
Q. To conform; is that right, conform to their peer group?
A. I think that would be another way of saying it, yes, sir.
Q. And that's what Dr. Teague reports here; correct?
A. That would be one thing, one reason why youngsters might start smoking, yes, sir.
Q. And another reason why they might is to experiment; correct?
A. That could be. I don't recall that I've seen a lot of comment on that particular area. It's mostly
having to do with peer pressure and the impact of siblings and parents.
Q. And with regard to parents, one of it might be to defy parents; correct?
A. "To defy" did you say?
Q. "Defy."
A. Yes, youngsters are quite often rebellious.
Q. And that's mentioned by Dr. Teague; isn't that right?
A. What are you referring to in specific, sir?
Q. To defy.
A. All right.
Q. To be daring, that's another reason why youth start smoking; correct?
A. That's what this document says.
Q. And that's consistent with your understanding; correct?
A. It is.
Q. Now if you go on to the next page, sir, does Dr.
Teague, in speaking about the two types of smokers, one who's already smoking, and starters, outline the fact that the industry, then, has to design and promote the product to two different types of market with two different sets of motivations, needs and expectations?
A. He says that "leaves us," so I assume he's talking about what he thinks the companies ought to do.
Q. Correct.
A. Yes, sir.
Q. And the companies spent, as you said, billions of dollars in advertising; correct?
A. They spend money on advertising and other marketing activities, yes, sir.
Q. Let me show you what's been marked Exhibit 30220, which are some of the Joe Camel ads of RJR.
Do you think these are directed to adults?
A. Yes, sir, I do.
Q. You do.
So your position would be these are not intended to be directed to youth; is that right?
A. Yes, sir.
Q. And you've never heard anyone at RJR say that they've done research on whether or not they were attractive to youth; is that right?
A. Whether R. J. Reynolds had done such research?
Q. Yes.
A. I don't recall it.
Q. They wouldn't share that with you because that would be an internal document; isn't that right?
A. Should be, yes, sir.
Q. Okay. And as you said, they don't share internal documents with you; correct?
A. They do not.
Q. Now can we direct our attention, sir, to Exhibit 18809, which is in volume two in front of you. This is a memorandum from William L. Dunn of Philip Morris.
Have you ever seen this document before?
A. I don't believe I have.
Q. Do you know Mr. Dunn?
A. No, I do not.
Q. Now I want to direct your attention, again, back to March of 1994 when you were making statements regarding the FDA's regulation of the cigarette as a drug. Do you have the time period in mind?
A. Yes, sir.
Q. And you were making statements publicly at that time; correct?
A. Yes, we were.
Q. Can you direct your attention to page five of this memorandum. In the second full paragraph, Mr.
Dunn states as follows: "The cigarette should be conceived not as a product but as a package. The product is nicotine." Do you see that, sir?
A. That's what he says.
Q. Did Philip Morris tell you that in 1994?
A. No, sir.
Q. Did RJR tell you that in 1994?
A. No, sir.
Q. Did any of the defendants tell you that in 1994?
A. No, sir.
Q. Did you ever state that publicly in 1994?
A. No, I did not.
Q. Do you know if The Tobacco Institute ever stated that publicly in 1994?
A. I'm relatively certain we did not.
Q. Did The Tobacco Institute ever testify to that in front of Congress in 1994?
A. By that, do you mean that the product is nicotine?
Q. Right.
A. No, sir.
Q. Did you put that out in a press release to your distribution list of news media --
A. We did not.
Q. -- in 1994?
A. No, sir.
Q. Did you ever do it before that time?
A. No, sir.
Q. Please move down a couple paragraphs to see where he says, "Think of the cigarette pack as a storage container for a day's supply of nicotine."
Do you see that?
A. Yes, I do.
Q. Did you ever say that in 1994 when the FDA was considering -- or excuse me, when Congress was considering the regulation of cigarettes by the FDA?
A. No, we did not.
Q. Did any of the defendant companies ever state that, to your knowledge?
A. Not to the best of my knowledge, no, sir.
Q. Did you ever put that into a public release to be disseminated to the public with regard to the industry's knowledge?
A. No, sir.
Q. Did you have any discussion with anyone at Philip Morris with regard to whether or not it considered its product to be nicotine and the cigarette to be a day's supply of nicotine?
A. No, sir.
Q. Is that true right up to today?
A. I think we've discussed the issue in general terms, but I'm not certain that's what you mean.
Q. You discussed the issue of whether Philip Morris
considered its product to be nicotine?
A. The industry, not -- not the particular company.
Q. I'm asking about Philip Morris right now.
A. No, sir.
Q. You've never discussed that.
A. No, sir, not with Philip Morris.
Q. Did you ever discuss it with any of the other companies, right up to today?
A. No, sir.
Q. Can you turn to the next page, and at the top it says "Think of a puff of smoke as the vehicle of nicotine." Do you see that, sir?
A. I do.
Q. Did you ever discuss that with Philip Morris at any time right up to today?
A. No, sir.
Q. Did you discuss it with any of the other defendants right up to today?
A. No, sir, not that specific sentence or phrase, no, sir.
Q. Did The Tobacco Institute ever disseminate information that Philip Morris thought of a puff of smoke as a vehicle of nicotine?
A. No, sir.
Q. Did any of the other companies ever disseminate
that?
A. Not to the best of my knowledge.
Q. Did you ever discuss it with any of the other companies?
A. Not with respect to that specific sentence or the way it's used there, no, sir.
Q. Did you ever get any documents from any of the companies with regard to whether they considered a puff of smoke as a vehicle for the delivery of nicotine?
A. No, sir.
Q. Do you see right below number five it says, "Smoke is beyond question the most optimized vehicle of nicotine and the cigarette the most optimized dispenser of smoke?" Do you see that?
A. That's what it says, yes, sir.
Q. Did you ever discuss that with Philip Morris?
A. No, I don't believe so, sir.
Q. Did you ever discuss it with any of the other defendants?
A. Not to the best of my recollection.
Q. Did you ever testify in Congress that smoke was beyond question the most optimized vehicle of nicotine and the cigarette the most optimized dispenser of smoke?
A. No, sir.
Q. Did anyone from The Tobacco Institute ever so testify?
A. I don't believe so, no, sir.
Q. Do you know if anyone from the cigarette companies ever so testified?
A. Not to the best of my recollection.
Q. Do you know that people from the tobacco companies denied that nicotine was addictive in front of Congress under oath?
A. Yes, sir, they -- they stated that, that that was their belief, yes, sir.
Q. In 1994; correct?
A. Correct.
Q. Have they changed that?
A. I don't believe that our position has changed with respect to how we regard smoking and addiction.
Q. That's not what I asked you.
A. But I think that certainly there are people who disagree with how we regard it.
Q. That's not what I asked you.
Did any of the other companies ever testify that nicotine was addictive in front of Congress since 1994.
A. In front of Congress since 1994?
Q. Yes.
A. I don't know. Certainly none of our members have.
Q. Not even --
Is Philip Morris a member?
A. Yes.
Q. Is Brown & Williamson a member?
A. Yes.
Q. Is RJR a member?
A. Yes.
Q. None of them have testified in front of Congress right up to today that nicotine is addictive?
A. Not to the best of my knowledge.
Q. Well certainly you know that Liggett has admitted that nicotine is addictive; correct?
A. I understand that Liggett has made some representations, yes, sir.
Q. They put it right on their pack of cigarettes now; don't they?
A. Yes, sir, that's my understanding. I haven't seen the packages, but it's my understanding they intended to.
Q. Now were you in Congress within the last two weeks?
A. I beg your pardon?
Q. Were you in Congress within the last two weeks?
A. Was I in Congress? No, sir.
Q. You weren't.
Do you know if any of the chief executive officers of any of your member companies testified in Congress within the last two weeks?
A. Yes, I believe they did.
Q. And did they testify that nicotine was addictive?
A. I don't believe they testified that nicotine is addictive, no, sir.
Q. None of them?
A. I don't believe so.
Q. You're certain of that?
A. My recollection.
Q. Do you know why they were in front of Congress?
A. They were asked to present their views on this what's called worldwide settlement of issues, yes, sir.
Q. They wanted immunity; didn't they?
A. I don't recall what they asked for specifically in that testimony. I didn't watch it.
Q. Didn't you think that was something that might be of interest to you, who is stating a policy on cigarettes to the entire American people?
A. Well with respect to media inquiries or public inquiries on that issue, the tobacco industry has set up an entirely separate way of dealing with it and responding to it, and The Tobacco Institute is not part of that setup.
Q. That's not what I asked you.
A. Well I think -- I think it's responsive because The Tobacco Institute doesn't respond to inquiries about that subject.
Q. Well, Mr. Merryman, but that wasn't what I asked you. See if you can answer my question.
As a spokesman for this industry and its, quote, policies, end of quote, did you have an interest in seeing what the chief executive officers of your member companies were going to say under oath to Congress?
A. Yes.
Q. "Yes" or "no?"
You did.
A. Certainly.
Q. But you didn't watch it.
A. I did not.
Q. You didn't read about it.
A. I read about it, yes.
Q. You did.
And did you read that some of those executives testified that nicotine was addictive?
A. I don't recall that they testified nicotine is addictive, no, sir.
Q. Did they testify that smoking was addictive?
A. I don't believe that I recall --
I don't recall them testifying that smoking is addictive, no, sir.
Q. Now you do know that they were in there to attempt to get immunity for their past actions; don't you?
MR. BLEAKLEY: Your Honor, I think we've gone way beyond the capabilities of this witness, and I object to this line of questioning.
THE COURT: Well the objection as to that question is sustained.
Q. Did you read all their testimony?
A. No, I did not.
Q. Were you provided with a summary of it?
A. I read newspaper accounts of it and I looked at some of the testimony, but I certainly did not finish it all. It was a five- or six-hour hearing.
Q. Were you provided -- and by "you" I mean The Tobacco Institute -- with a briefing paper on this issue?
A. If there was such a paper, I never saw it.
Q. By that do I take it to mean you don't know if The Tobacco Institute was provided with a briefing paper or not?
A. That is correct.
Q. Have you asked Mr. Chilcote what the executives testified to?
A. No, I have not.
Q. Have you had any discussion with him regarding that testimony?
A. I have not.
Q. Does The Tobacco Institute do anything other than represent policies of the tobacco industry?
A. We're their trade association, and that is our principal endeavor, to articulate the perspectives of the industry on a wide variety of issues.
Q. Well other than smoking and health, what other wide variety of issues do you articulate to the industry?
A. Taxation on -- on the product at the federal, state and local level; there are in many years hundreds of pieces of legislation on -- on increasing taxes on the product; proposals to ban or restrict smoking in restaurants or other places, there are likewise many, many legislative proposals to do that;
proposals to ban or restrict advertising of the product. Those are the main issues that we address.
Smoking-and-health issues rarely come up and haven't for years.
Q. Is that the total of the issues that you address on behalf of the tobacco industry?
A. Well as I mentioned, those are the -- those are the main issues. I don't recall others, if they come up.
Q. Now you said that the testimony in Congress was with respect to a global settlement; is that right?
A. That's my understanding.
Q. Have you ever read it?
A. The settlement?
Q. Yes.
A. I know I have seen a 68-page document that may or may not be a summary of it. I don't know that I've read the whole thing.
Q. Did you read the summary?
A. Parts of it, yes, sir.
Q. And did you learn from there that the industry was seeking immunity from its past actions?
A. I don't recall if I learned that from reading that document.
Q. Do you know if the industry has taken a position
with respect to whether these documents we're seeing should be made public?
A. I don't know, sir.
Q. Didn't they testify in front of Congress that they would make them public if they got immunity?
MR. BLEAKLEY: Your Honor, a witness who has testified before Congress is a matter of public knowledge and can be introduced here, if it's appropriate. This person is not the right person to do that. I object.
THE COURT: Well do you know the answer to the question?
THE WITNESS: I do not.
THE COURT: Okay.
Q. Can you turn, sir, to Exhibit 13344.
A. All right.
Q. Do you have it?
A. Yes, sir.
Q. This is a Brown & Williamson document?
A. It appears to be.
Q. Have you seen this before, sir?
A. No, sir, I've not.
Q. It's to Mr. Blott, who's a senior vice-president for domestic marketing, from Mr. Mellman, who is the director of consumer research, with carbon copies to
Mr. McCafferty, group product director, and Mr.
Lewis, who is the director of international brands.
Do you know any of those individuals?
A. I do not, sir, no.
Q. Have you ever spoken with any of those individuals on the phone?
A. I don't remember speaking to any of them, no, sir.
Q. Can you turn to the next page. And this is
"Relationship of nicotine level to switching behavior." Do you see that?
A. Yes, sir.
Q. "Nicotine is the addicting agent in cigarettes."
Do you see that?
A. That's what it says.
Q. Now, did you ever have a discussion with anyone at Brown & Williamson wherein they stated that nicotine was the addicting agent in cigarettes?
A. No, sir.
Q. Did Brown & Williamson ever provide you any information that nicotine was the addicting agent in cigarettes so you could provide that to the public?
A. No, sir.
Q. Do you know if Brown & Williamson ever publicly stated before this year that nicotine was the
addicting agent in cigarettes?
A. No, sir.
Q. No, you don't know, or no, they didn't?
A. I don't believe they ever did, no, sir.
Q. If you were faced with a situation at The Tobacco Institute where one or two of your members said nicotine is addictive and the others said it wasn't, what would be your policy on dissemination of that information?
A. Well generally we operate, as I understand it, on a basis of consensus among our members. If there's no consensus, then there's no policy statement.
Q. They all have to agree before a statement is made; right?
A. Well I think you're going beyond what my understanding of how the Institute operates is since I'm not a administrative agent, but I think the way our operation usually is is that everybody has to agree on something before there is a policy statement. You know, I could be mistaken on that since I'm not involved in that sort of activity on a day-to-day basis.
Q. Can you think of one time in your 21 years where they didn't agree on a policy statement?
A. Well I wouldn't normally have been exposed to that kind of discussion since that would have taken place at committee meetings that I rarely, if ever, would have attended.
Q. So they all work in combination, don't they, sir, in making their statement.
A. The member companies of The Tobacco Institute certainly work in concert to develop positions, yes, sir.
Q. They combine together and make the statement; isn't that right?
A. Well if by that you mean they have to agree on a statement before it's issued, yes, sir.
Q. You do not at The Tobacco Institute put out conflicting or contradictory statements based on what one company may know as contrasted with another company; do you?
A. Well the statements and positions that The Tobacco Institute issues on behalf of its members obviously are reached as a result of the consensus that they come to, so it wouldn't -- it wouldn't conflict, obviously.
Q. If two member companies disagree, you don't put out the disagreement; do you?
A. No, sir.
Q. Never have in the 21 years you've been there; have you?
A. Our -- our policies are reached as a result of consensus and discussion, and then the policy statement is issued.
Q. Have to agree; correct?
A. That's my understanding.
Q. And The Tobacco Institute had a policy against stating that nicotine was addictive because it might affect lawsuits; isn't that right?
A. No, our -- our policy on smoking and addiction was made clear because, in my opinion from what I was told, that was supported in the scientific literature and it was a position we thought was an honest, accurate reflection of what was known and understood about -- about smoking and addiction.
Q. Sir, there was a policy not to admit addiction because you couldn't defend smoking as a free choice; isn't that right?
A. Well if -- if someone's addicted, then they don't exercise free choice. But that was never a policy statement that the Institute issued, nor was it a policy of the Institute.
Q. Well I know you didn't issue that, but that was an internal policy; isn't that right, Mr. Merryman?
A. No, sir.
Q. You were told that by your lawyers; isn't that right, sir?
A. No, sir, not that I remember.
Q. Can you turn to Exhibit 14303, please.
A. All right.
Q. This is a Tobacco Institute memorandum?
A. It appears to be.
Q. Mr. Kloepfer was a senior vice-president, public relations, in 1980?
A. He was at the time, yes, sir.
Q. And Mr. Knopick was an employee of The Tobacco Institute?
A. He was.
Q. And you were employed at that time; correct?
A. Yes, sir.
Q. And in 1980 the National Institute of Drug Abuse wanted "addictive" added to the cigarette warning; correct?
A. I don't recall what they wanted at that time.
Q. Does this memorandum reflect that?
A. That's what Mr. Knopick says.
Q. Do you have any reason to dispute that, based on your memory?
A. I -- I can't recall back that far to remember
what the National Institute on Drug Abuse wanted.
Q. Can you turn to the next page, sir.
Now Shook, Hardy is one of the law firms representing the defendants in this case; correct?
A. Yes, sir.
Q. And they'd been industry lawyers, as you said, for decades; correct?
A. They have represented tobacco companies for a considerable period of time, yes, sir.
Q. And if you direct your attention to the last four sentences, "Shook, Hardy reminds us, I'm told, that the entire matter of addiction is the most potent weapon a prosecuting attorney can have in a lung cancer/cigarette case. We can't defend continued smoking as 'free choice' if the person was
'addicted'." Do you see that?
A. Yes, sir, I see it.
Q. And you knew about that policy; didn't you, sir?
A. This wasn't a policy of The Tobacco Institute, it was this writer's opinion.
Q. You knew that Shook, Hardy had told The Tobacco Institute that; didn't you?
A. I knew no such thing.
Q. You didn't.
A. No, sir.
Q. But you do know that if the individual smoker is addicted, as you just said, he or she doesn't have free choice; correct?
A. If someone is unable to make the choice, is truly addicted, then there's -- there's no choice involved. However, I happen to disagree with the use of the word "addiction" in smoking.
Q. I didn't ask you that. I know what you feel; you've said it every time. And your lawyers will have a chance to ask you that.
If a person is addicted, he or she doesn't have a free choice; correct?
A. That is correct.
Q. And if a person starts smoking when they're young and they don't know about addiction, they can be trapped into addiction without knowing the consequences of it; correct?
A. I think it's very clear that people can and do quit smoking all the time.
Q. That's not what I asked you, sir.
MR. BLEAKLEY: Objection, Your Honor, he's interrupted the witnes's answer.
MR. CIRESI: Your Honor, Your Honor, it's non-responsive.
THE COURT: It is non-responsive.
MR. BLEAKLEY: But he's still entitled to finish his answer.
THE COURT: All right. Have you finished your answer?
THE WITNESS: Yes, sir.
THE COURT: Okay.
MR. CIRESI: May I have the question read?
(Record read by the court reporter.)
A. Accepting all of the assumptions inherent in that question, then yes.
Q. And if they stay addicted and the smoking causes lung cancer or emphysema, they might die from that addiction; isn't that right, sir?
A. If smoking were responsible for causing those diseases, someone who is a smoker might die from them, yes, sir.
Q. And the overwhelming majority of the people who start smoking are our young; correct, sir?
A. I don't know if I could characterize it that way. Certainly it's a large number, and too many.
MR. CIRESI: Your Honor, you want to take the break there?
THE COURT: All right. We'll recess for lunch, reconvene at 1:35.
THE CLERK: Court stands in recess, to
reconvene at 1:35.
(Recess taken.)
AFTERNOON SESSION.
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. CIRESI: Thank you, Your Honor. Good afternoon, ladies and gentlemen.
(Collective "Good afternoon.")
BY MR. CIRESI:
Q. Good afternoon, Mr. Merryman.
A. Good afternoon.
Q. Sir, I'd like to direct your attention now to the policy statement that the TI made with regard to whether or not smoking causes diseases. You'll recall we touched on that briefly on Friday?
A. Yes, sir.
Q. Can you direct your attention once more to Exhibit 11028.
A. What volume is that in?
Q. That would be in volume one, sir.
A. All right.
Q. You'll recall that was the B.A.T. Company Ltd.
trip report of a visit to the United States from April 17th through May 12th, 1958; correct?
A. Yes, sir.
Q. And you recall we looked at the itinerary and the number of companies and institutions that were visited by the three individuals from England; correct?
A. That's correct, yes, sir.
Q. Can you turn to page three, please. That's the number at the top, sir.
A. All right.
Q. See the reference as follows: "Otherwise we found general acceptance of the view that the most likely means of causation is that tobacco smoke contains carcinogenic substances present in sufficient quantity to provide lung cancer when acting for a long time in a sensitive individual."
Now sir, did American Tobacco ever tell you that during your tenure --
A. No, sir.
A. -- at The Tobacco Institute?
A. Not that I recall.
Q. Did Liggett ever tell you that during your tenure with The Tobacco Institute?
A. I don't believe so, no, sir.
Q. Did Philip Morris ever tell you that?
A. I don't think so, no, sir.
Q. Did any of the other defendants ever tell you
that?
A. Not to the best of my recollection, no, sir.
Q. Can you turn to page nine of that document, and I'd like to direct your attention to number three --
and this is part of the conclusions made by these individuals after they met with all of the institutions and companies listed on the itinerary.
It states as follows: "The direct carcinogenicity of smoke condensate to animal tissue, which is consistent with direct causation, is now fully confirmed but the evidence so far obtained makes it unlikely that this activity is due to any single
'super carcinogen' in smoke." Do you see that?
A. Yes, I see that.
Q. Do you know how many carcinogens there are in smoke?
A. I do not, no, sir.
Q. Did you ever have any discussion on that with anyone from American?
A. I don't know if there was a specific discussion on that number with American Tobacco, no, sir. I don't recall that.
Q. Did you ever have a specific discussion with anyone from Philip Morris regarding that specific issue?
A. Regarding carcinogens identified in tobacco smoke? Yes, sir, we've had that discussion.
Q. And were you told that there were carcinogens in tobacco smoke?
A. Yes, sir.
Q. Okay. And did you have discussions with Liggett concerning that subject matter?
A. I don't recall discussions with anyone from Liggett on that subject.
Q. Did you have discussions with anyone from RJR on that subject matter?
A. I -- I believe I recall those, yes, sir.
Q. Did you have discussions with anyone from Brown
& Williamson on that subject matter?
A. Not that I remember specifically.
Q. Did you have discussions with anyone from any of the other defendants regarding that subject matter?
A. There may have been with some representatives from The Council for Tobacco Research.
Q. Did the representatives from -- strike that.
Who from the Tobacco Council -- Council for Tobacco Research?
A. Dr. Sommers.
Q. When did you have your discussion with Dr.
Sommers?
A. 1976.
Q. Did Dr. Sommers tell you that it was fully confirmed that there was direct causation between smoke condensate and cancer?
A. I certainly don't recall him having said that, no, sir.
Q. Did any of the defendants ever tell you at any time from 1958, the date of this document, forward that the direct carcinogenicity of smoke condensate to animal tissue which is consistent with direct causation is now fully confirmed?
A. No, sir, I don't believe so.
Q. Did you ever state to the public on behalf of the industry that the direct carcinogenicity of smoke condensate to animal tissue which is consistent with direct causation was fully confirmed?
A. No, sir.
Q. Do you know if any of the other defendants ever made such a statement from 1958 up to the present time?
A. I'm not aware of it, no, sir.
Q. Sir, can you direct your attention to Exhibit 12581.
A. All right.
Q. This is a survey of cancer research by Claude
Teague, Jr., dated February 2nd, 1953. Have you ever seen this document before?
A. I don't know if I have or not, Mr. Ciresi. It doesn't seem familiar.
Q. Do you know if you saw it in preparation for this litigation?
A. It is possible I did. However, I cannot be certain.
MR. CIRESI: Your Honor, we'd offer Exhibit 12581.
MR. BLEAKLEY: No objection, Your Honor.
THE COURT: Court will receive 12581.
BY MR. CIRESI:
Q. Title is "SURVEY OF CANCER RESEARCH with emphasis upon POSSIBLE CARCINOGENS FROM TOBACCO" by Claude E. Teague, Jr., 2 February 1953.
This is about, what, 11 years before the Surgeon General's report in 1964?
A. Approximately, yes, sir.
Q. Can you turn to page 14, the conclusion section.
I want to read part of that to you and ask you some questions. Quote, "The increased incidence of cancer in the lung of man which has occurred over the last half century is probably due to new or increased contact with carcinogenic stimuli. The closely
parallel increase in cigarette smoking has led to the suspicion that tobacco smoking is an important etiologic factor in the induction of primary cancer of the lung."
First of all, what's an etiologic factor, if you know?
A. I believe it has to do with causation.
Q. It's a factor that causes something; correct?
A. I can't say for certain. I don't know.
Q. I'll read on. "Studies of the clinical data tend to confirm the relationship between heavy and prolonged tobacco smoking and the incidence of cancer in the lung."
Sir, did Mr. Teague of RJR or anyone from RJR ever tell you that in 1953 they had done an analysis in which they concluded that studies of clinical data tend to confirm the relationship between heavy and prolonged tobacco smoking and incidence of cancer in the lungs?
A. I don't recall ever hearing of Mr. Teague's opinions on the subject, no, sir.
Q. Did you hear anyone from RJR say that?
A. No, sir.
Q. Did you hear anyone from any of the other defendants say that?
A. No, sir.
Q. That would be right up to today; correct, sir?
A. Correct.
Q. Would it be fair to state that The Tobacco Institute has never stated publicly that studies of clinical data tend to confirm the relationship between heavy and prolonged tobacco smoking and incidence of cancer in the lung?
A. I don't recognize that as a statement The Tobacco Institute has ever made, no, sir.
Q. Do you know if The Tobacco Institute has ever said that some of our member companies knew that as early as 1953, eleven years before the first Surgeon General's report?
A. I don't recall the Institute ever making a statement to that effect, no, sir.
Q. You don't recall any of the defendant companies ever making such a statement either; do you, sir?
A. No, sir, I do not.
Q. Can you take a look at the paragraph directly above that, "Tobacco Additives." Do you recall last Friday we were talking about the duty of a company to investigate hazards with respect to its product?
A. Yes, I recall that.
Q. And in order for a company to investigate
hazards, would you agree with me that the investigator must know what additives are in the product?
A. I suppose that's one of the things that he might want to know.
Q. Well you wouldn't know how to investigate the additive unless you knew what the additive was; correct?
A. Well that's true. That's certainly true.
Q. And Mr. Teague didn't have access to that information; did he?
A. I don't know. If I can read this for a moment, maybe we can see.
Q. Take a look under "Tobacco Additives." "In the manufacture of tobacco products a number of organic materials are added to the leaf tobacco. Such additives are flavorants, humectants and like substances. It is possible that one or more of these materials may give rise to carcinogenic substances.
The writer does not have access to information as to the additives used and is therefore unable to evaluate them." Is that right?
A. That's what he says, yes, sir.
Q. But if a scientist were going to evaluate them, he or she would need to know what they were; correct?
A. Yes, sir.
Q. And does Mr. Teague in the last line under
"CONCLUSIONS" report that he couldn't determine whether or not additives produced any carcinogenic role because he didn't have access to the information?
A. He says he does not have access to the information, that's true, sir.
Q. Can you direct your attention, sir, to Exhibit 13555, which is a Brown & Williamson document dated 1952.
A. All right.
Q. Have you ever seen this document before, sir?
A. It's not familiar to me, no, sir.
Q. Do you recall if you looked at this with regard to preparing to testify here?
A. I don't believe I did, no, sir.
Q. You can see that it's a Brown & Williamson document; correct?
A. That's what it appears to be.
MR. CIRESI: Your Honor, we'd offer Exhibit 13555.
This may be in.
It is admitted, Your Honor.
BY MR. CIRESI:
Q. Mr. Merryman, the title of this is "REPORT OF PROGRESS - TECHNICAL RESEARCH DEPARTMENT, 24 DECEMBER 1952." Twelve years before the Surgeon General's report; correct?
A. Yes, sir, approximately.
Q. Can you turn your attention to page nine, and I'm referring to the number at the bottom.
A. All right.
Q. And do you see in that paragraph that the author is referencing the fact that the Brown & Williamson lab had made a partial isolation and identification of benzopyrene?
A. Yes, sir.
Q. Do you know what an aromatic hydrocarbon is?
A. Don't know if I can respond to that very well.
I don't actually know, no, sir.
Q. They're highly carcinogenic; are they not?
A. I don't know that.
Q. Do you know what a benzoid ring is?
A. I'm sorry?
Q. Benzoid ring.
A. No, sir.
Q. And it's reported here that benzopyrene in both smoke and original tobacco from Raleigh blend cigarettes had been isolated and identified; correct?
A. Yes, sir.
Q. And the paragraph below that states, "A most important factor is that no investigator has accurately established what causes cancer and no one has proved that the chemical agents, like benzopyrene, which cause cancer in animals will definitely cause cancer in humans." Correct?
A. Yes, sir.
Q. But of course today we know that benzopyrene causes cancer in humans; don't we?
A. No, sir. I don't believe that's -- that has been established.
Q. Never been made aware of that.
A. I don't believe that's been established.
Q. Have you ever heard of the P-53 gene?
A. I don't think so, no.
Q. Do you know what the tumor-suppressant gene is?
A. No, sir, I don't.
Q. Do you know if it's been reported in the literature that benzopyrene binds to the P-53 gene in the same spot where cancer develops?
A. No, sir, I'm not aware of that.
Q. Are you aware that it's been reported that the mechanism by which that does is it binds to the DNA in the nucleus of a cell?
A. That's not something I know anything about, sir.
Q. Nobody ever told you that from any of the companies?
A. I don't recall ever hearing that, no, sir.
Q. Shook, Hardy never told you that?
A. I don't recall hearing it, sir.
Q. Nobody at The Tobacco Institute ever told you that?
A. It's not familiar to me, sir.
Q. Well if that had been reported, that would be a mechanism, as you use the term; wouldn't it?
A. I don't know, sir.
Q. Just don't know.
A. I'm not that well versed in -- in science to be able to answer that question.
Q. Well what would you need to know whether something was a mechanism or not?
MR. BLEAKLEY: Objection, Your Honor, this witness is not qualified to answer a question like that.
THE COURT: You can give --
I think you'll have to rephrase that if you want him to give his definition.
MR. CIRESI: Yes. I'm just asking for his definition.
THE WITNESS: Could you repeat it, sir?
MR. CIRESI: Sure. Could you read the question back, please.
(Record read by the court reporter.)
A. I think that it would have to be identified by scientists and published in the scientific literature and replicated to establish that something caused a previously normal, healthy cell to become malignant or cancerous. You know, I answer that as a layman without any scientific background, and that's what it means to me.
Q. And if that was reported in the literature, then you would say that cigarette smoking does cause cancer; correct?
A. Well having a -- a report in the literature certainly is interesting information, but I think that most scientists agree that a single report is something that has to be confirmed, reconfirmed, replicated, before there's any consensus about what it means.
Q. How many of those reports would you need before you'd say cigarette smoking causes cancer?
A. Well again, I don't think it's up to me to make that decision as a layman. I think that science has to in the end make that -- that -- that
determination.
Q. How many scientists would you want saying that?
Let's assume there's a hundred scientists out there.
How many of those would need to say that before you would accept it?
MR. BLEAKLEY: Objection, Your Honor, asked and answered.
THE COURT: Well, I think you're asking him an improper hypothetical.
Q. Well sir, you know that you are standing alone.
I think you said you're the lone soldier, the industry, in saying that cigarette smoking doesn't cause cancer. Isn't that what you said?
A. Well I said that I didn't know of any organizations that took that viewpoint.
Q. Okay.
A. I think there are -- there's adequate support for our view in the scientific literature.
Q. How many scientists in your judgment do you need to have adequate support to deny that smoking causes cancer?
MR. BLEAKLEY: Objection, Your Honor.
THE COURT: Sustained.
Q. Well you make these decisions on your own; don't you?
A. I make what decisions on my own, sir?
Q. As to whether you believe smoking causes cancer.
A. Well I -- I make decisions based on a review of the scientific literature and --
Q. Do you rely --
Do you rely solely on what somebody else tells you to make that decision?
A. Well we're presented with a great deal of scientific information on this subject. I think that taking the position I take on behalf of the industry is responsible and it is supported in the scientific literature.
Q. That's not what I asked you.
Do you rely on other people or do you make that decision yourself?
A. I rely on other people for information.
Q. And that information for you comes from the lawyers; correct?
A. I get information from the companies, I get information from the scientific literature.
Certainly we communicate with the lawyers.
Q. Do you read the scientific literature?
A. I do not personally, no.
Q. Okay. So you get it from the lawyers and you get it from the companies; correct?
A. We get some information from the lawyers, we get some information from the companies, yes, sir.
Q. And the information you get from the companies is not from the scientists and it's not from the CEOs, it's from their public relations departments; correct?
A. Well I should also add that we do get scientific information at The Tobacco Institute. I may not personally read it, but we do receive it. We get information from the companies, from the people with whom I normally would have contact on a day-to-day basis, and those would be people in the public relations division normally.
Q. All right. So the answer to my question is yes, you get it from the public relations department, not from the scientists or the CEOs; correct?
A. It's correct to say that I don't have contact r