February 11, 1998
STATE OF MINNESOTA
DISTRICT COURT COUNTY OF RAMSEY
SECOND JUDICIAL DISTRICT
File No. C1-94-8565
The State of Minnesota, by Hubert H. Humphrey, III, its attorney general, and Blue Cross and Blue Shield of Minnesota,
Plaintiffs,
vs.
Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, B.A.T. Industries P.L.C., Lorillard Tobacco Company, The American Tobacco Company, Liggett Group, Inc., The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc.,
Defendants.
THE CLERK: All rise. Ramsey County District Court is again in session, the Honorable Kenneth J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Good morning.
(Collective "Good morning.")
THE COURT: Ladies and gentlemen and members of the jury, as you'll recall previously, I mentioned that I'll periodically remind you of the necessity of your avoiding reading any newspapers or magazines or listening to the radio or television concerning this particular case, having any discussions with any members of your family, spouses, girlfriends or boyfriends or other close members of your family, and of course not talking to anyone, any outsiders about the case, and again reminding you that should anyone from the outside contact you, please contact the court immediately so that we can address the issue. This is just another general reminder. I'll -- I'll be giving you that periodically through the case.
Counsel.
MR. BLEAKLEY: Thank you, Your Honor. Good morning, ladies and gentlemen.
(Collective "Good morning.")
WALKER N. MERRYMAN called as a witness, being previously sworn, was examined and testified as follows:
BY MR. BLEAKLEY:
Q. Good morning, Mr. Merryman.
A. Good morning.
Q. As you know, my name is Peter Bleakley and I'm counsel for one of the defendants, Philip Morris, in this case, and I'm going to ask you a few questions and hopefully get you out of here today.
Let me ask you first, Mr. Merryman, to tell us a little bit about your background. Where are you from and where did you grow up?
A. I was born and grew up in Rapid City, South Dakota, spent all of my formative years there, went to high school there, graduated from Rapid City Central High School. My mother still lives there.
Q. And what did you do after you graduated from high school?
A. I attended college in Beloit, Wisconsin, for a year, and transferred to Emerson College in Boston following that.
Q. Did you graduate from Emerson?
A. Yes, I did.
Q. What kind --
A. In 1971.
Q. What kind of a degree did you receive?
A. I received a bachelor's degree in mass communications.
Q. And that was 1971 you said?
A. Yes, it was.
Q. After you graduated in 1971, what -- what did you do?
A. I returned to Rapid City to work for a cable television system in their news division, starting up their news department. Was one of the first cable systems in the country, as I recall, to do any significant amount of news and local public affairs programming.
Q. And how long did you hold that job?
A. I was there for little less than a year.
Q. What did you do next?
A. Following that I went to Sioux City, Iowa, where I was employed by the NBC television affiliate there to write and produce and anchor newscasts and do reporting.
Q. And how long did you hold that position?
A. I was there for a little less than a year.
Q. And what came next?
A. After that I took a job as news director at the Nebraska Television Network in Carney, Nebraska, which was a commercial network of four television stations that covered predominantly rural areas of Nebraska, Kansas and Colorado.
Q. And how long were you in Carney, Nebraska?
A. From approximately November 1972 until early 1976.
Q. So about four years?
A. Little less than that, yes.
Q. And you left Carney in 1976; is that right?
A. That is correct.
Q. And what position did you take then?
A. That is when The Tobacco Institute offered me a position as assistant to the president of the Institute.
Q. So you moved to Washington in 1976 then?
A. Yes, sir, I did.
Q. Is it fair to describe the five years that you spent before you went to The Tobacco Institute as a broadcast journalist?
A. That is correct, yes, sir.
Q. Now tell us how is it that you came about to take a position with The Tobacco Institute?
A. Well I became aware of their interest in hiring someone who was familiar with broadcasting and journalism. Friend of mine who ran a job-placement service for the Radio and Television News Directors Association told me of the position. I applied for it, and they asked for a substantial amount of background material on me, which I submitted, and went to Washington then for a personal interview, and subsequently I was hired.
Q. And what were you hired to do?
A. I was hired to respond to inquiries from the news media about issues that The Tobacco Institute addressed on behalf of its member companies.
Q. What kind of media inquiries were you responding to?
A. Well typically a reporter would call and ask for information on tobacco economics, tobacco history, taxation, smoking bans, smoking and health also on occasion. We responded, if we could, if we had the information, to those questions and were in a position of being the spokesman for the industry on those issues on which there was a common position.
Q. How did you -- What was the title that you had when you first went to work for TI?
A. Assistant to the president, sir.
Q. And how did you go about responding to inquiries, what -- what physically did you do?
A. Well we had information at the Institute in published form that we referred to, position papers. In terms of economic information, we'd gather that from sources such as the U.S. Department of Agriculture or state tax and revenue offices on taxation matters. We'd certainly review material that came to us in subscription form; for example, magazines and newspapers. So that we had as much information as we could gather on -- on these issues, and also obviously we got a lot of information from our member companies.
Q. Did you, during this time that you were assistant to the president, did you do things other than respond to inquiries from the media?
A. Yes, sir. Occasionally I would pitch in to help write a news release. I would write -- sometimes I'd write speeches for myself. I don't think I wrote speeches for anybody else. We were asked on occasion to give speeches to civic clubs like Kiwanis Clubs and Lions Clubs. Also sometimes tobacco trade magazines would ask us to write an article on a current issue for their magazine, and sometimes I would do that.
Q. How long did you hold this position of assistant to the president?
A. Until approximately 1980 or '81.
Q. And would you tell the jury what -- what position you took up next?
A. After that I was offered a position of director of communications at the Institute.
Q. And what year was that?
A. 1980 or 1981, I believe.
Q. And did your job responsibilities change when you became director of communications?
A. Yes, sir, they did. They were expanded quite a bit.
Q. And how were they expanded?
A. To include some administrative duties, to oversee the activities of three other people who would act as spokesmen for the Institute, for the industry, and also a support staff of two people.
Q. How long were you director of communications?
A. For approximately two years.
Q. And then what position did you take?
A. Then I was offered the position of vice-president of The Tobacco Institute, which I took.
Q. And did your responsibilities change when you became a vice-president?
A. Not materially, no, sir.
Q. And is that the job that you have today?
A. Yes, sir, it is.
Q. So you've had essentially the same position for the past 15 years, approximately?
A. Yes, sir, that's right.
Q. Are you a part of a particular unit of The Tobacco Institute?
A. I'm part of the public affairs division.
Q. The public affairs division.
A. Yes, sir.
Q. And is there someone in that division to whom you report, or are you the -- the head of it? What is -- how does that operate?
A. The public affairs division is headed by a senior vice-president whose name is Walter Woodson.
Q. Can you tell us a little bit about the organization of The Tobacco Institute? Are there divisions other than the public affairs division?
A. Yes, sir, there are.
Q. What are they?
A. There are three other divisions: one is the administrative division, which takes care of things like payroll and -- and personnel and computers; there is our state activities division, which oversees our efforts to monitor legislative and regulatory activity at the state and local level; and then there's our federal relations division, which oversees our activities at the federal level with respect to Congress and federal agencies.
Q. What -- what does the state activities division do?
A. State activities oversees our activity at the state and local level. We have, obviously, a lot of concerns with respect to legislation and regulatory -- regulation in the 50 states. A lot of legislators are in session right now. We have contract lobbyists who report to various regional vice- presidents who represent The Tobacco Institute in Minnesota and other states.
Q. When you joined The Tobacco Institute, how many employees did it have?
A. I believe there were approximately 30 employees at that time, sir.
Q. How many does it have today?
A. Somewhere around 50 or 54 employees, I believe.
Q. How many are there in the public affairs division, your division?
A. The division which I'm employed, I believe there are a dozen.
Q. Who supports The Tobacco Institute; that is, provides the funding for the organization?
A. Our funding comes entirely from our members, which are the cigarette manufacturers, manufacturers of tobacco products.
Q. If you would look in that small exhibit book you have there at the first exhibit that's marked PA000341.
A. All right.
MR. BLEAKLEY: Your Honor, at this time I offer PA000341 for illustrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive PA000341.
BY MR. BLEAKLEY:
Q. I'm not sure you're going to be able to --
Let me first ask you what this document is, PA000341.
A. This is a document which, as it says, is the scope and activities of The Tobacco Institute. It describes in general terms what The Tobacco Institute is and does.
Q. And what was the purpose for which this document was prepared?
A. We wanted to give people who were interested in knowing something about the Institute a general overview of our activities.
Q. As a general overview, does it accurately state what The Tobacco Institute does and doesn't do?
A. It -- it does, sir.
Q. Let me direct your attention to the second page of this exhibit, the page that reads, "What it does...
"The functions of The Institute are similar to those of many other industry or professional associations. The aim of The Institute is to foster public understanding of the smoking and health controversy and to increase awareness of the historic role of tobacco and its place in the national economy. It is a communicator of information and viewpoints on such matters to the public, news media and government at state" -- excuse me, "local, state and federal levels."
Does that accurately state what The Tobacco Institute does?
A. Yes, sir, it does.
Q. Now how does it accomplish that, that aim or that function? The aim of the Institute, to foster public understanding, how does it do that?
A. We have a variety of publications that we make available to the news media, to the general public, on issues that The Tobacco Institute takes a policy or position on. We also have, as I mentioned a moment ago, people like me who act as spokesmen for the Institute and for the industry who are available to talk to the news media or talk to public groups upon invitation. We occasionally have had films on agriculture, for example, to give people an overview of what tobacco agriculture and history is like. And we also maintain documents for our own use in researching some of those issues.
Q. At the beginning of this paragraph it says "The functions of The Institute are similar to host of many other industry or professional associations." What does that mean?
A. Well there are hundreds if not thousands of trade associations and professional associations, a lot of them in Washington, D.C., and we are not unlike almost all of them with the exception that we don't promote the product, as some do on behalf of their members. But we're not in the business of trying to encourage smoking or discourage quitting, so we're not involved in that commercial activity. But apart from that, what we do on behalf of our members is virtually indistinquishable from what a lot of other trade associations do.
Q. Do you in your job have occasion to talk with and meet with people who work for other trade associations?
A. Yes, sir, I do.
Q. Do you exchange ideas and have conferences and that sort of thing?
A. Yes, sir, both formally and informally we do.
Q. And based upon your knowledge of other trade associations, do they function pretty much like The Tobacco Institute does, except --
MR. CIRESI: Objection. Objection, hearsay, no foundation.
THE COURT: Sustained.
BY MR. BLEAKLEY:
Q. To your knowledge, do most industries in the United States have trade associations?
A. I believe they do, yes, sir.
Q. Let me return to -- or turn to the other page of Exhibit 000341 and direct your attention to the paragraph that reads, "What it doesn't do...
"The Institute has no role in competitive activities of the tobacco industry such as purchasing, manufacturing, pricing, promoting or marketing tobacco or tobacco products."
Is that an accurate statement of what The Tobacco Institute does not do?
A. Yes, sir, it is.
Q. The Tobacco Institute does not promote the sale or purchase of cigarettes?
A. That is correct, sir.
Q. And does it promote smoking?
A. No, sir, we do not.
Q. Does it discourage smoking?
A. No, sir, it does not.
Q. Does The Tobacco Institute have any involvement in the business operations of its member cigarette companies?
A. No, sir, we do not.
Q. Let me go back to the other page of that exhibit, the section entitled "Speakers programs" which reads, "The Institute provides speakers on any tobacco-related subject for civic and service clubs, business on professional groups," and so forth, and then it reads, "Generally, the age of the audience is the only restriction on where they will schedule appearances, in line with the industry's longstanding policy that smoking is not for the young but a custom of free choice for informed, mature persons. They do not, therefore, address young persons' groups." Do you see that?
A. Yes, sir, I do.
Q. Is that an accurate statement, --
A. Yes, sir, it very much is.
Q. -- that The Tobacco Institute does not address young persons' groups?
A. That is correct.
Q. And how does The Tobacco Institute, for the purposes of this program, define "young persons' groups?"
A. We avoid addressing groups that are made up of anyone under the age of 21.
Q. How long has this policy existed?
A. To the best of my knowledge, ever since I've been at the Institute, 22 years.
Q. Has The Tobacco Institute taken steps to communicate to the public the policy that smoking is not for the young, but a custom of free choice for informed, mature persons?
A. Yes, sir, we have.
MR. BLEAKLEY: Your Honor, at this time I have a demonstrative exhibit entitled -- MR. CIRESI: May I see it before --
MR. BLEAKLEY: You've got it. It's the same.
MR. BLEAKLEY: -- Exhibit No. 2803, which we would offer for illustrative purposes.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive 2803 for illustrative purposes.
BY MR. BLEAKLEY:
Q. Now you have a copy of that in your exhibit book, I hope. Should be the next exhibit in there.
A. Don't --
Yes, I do.
Q. Well let me just ask you --
A. Yes, I do.
Q. Let me just ask you about it.
Tell us how the Institute has gone about communicating to the public the policy that smoking is not for the young, but a custom of free choice for informed, mature persons?
A. Well, in 1982 we launched an advertising campaign, the theme of which was Do Cigarette Companies Want Kids To Smoke? The Answer: No.
MR. BLEAKLEY: Your Honor, may I approach the witness with a small version of this exhibit? Thank you.
Oh, you found it. Okay. Sorry.
Q. All right. Referring, if you would, to Exhibit 2803, is this the program on this exhibit identified as The Tobacco Institute ad campaign?
A. Yes, sir, that's correct.
Q. Okay. Would you describe for the ladies and gentlemen of the jury and the court what this campaign consisted of and why The Tobacco Institute launched it.
A. It was a national advertising campaign in consumer magazines that were read by literally millions of Americans. We launched the campaign because there had been a leveling off in what had been a decline in youth smoking in the previous couple of years. We wanted to make certain that our industry policy on youth smoking was clearly enunciated and clearly understood, and this was our attempt to let people know that the industry did not want kids to smoke.
Q. And where was this ad campaign launched, in what media?
A. It was national magazines, sir.
Q. What kind of national magazines?
A. Such as Time, Newsweek, magazines such as that.
Q. And were you personally involved in this campaign?
A. I had no personal involvement in it, no, sir.
Q. Had you been involved in the policies in communicating to the public The Tobacco Institute's policy that smoking is not for the young, but a custom of free choice for informed, mature adults?
A. I've been consistently involved in communicating that policy over the years as a spokesman for the Institute in response to requests from reporters for our position on the issue and also in public appearances, yes, sir.
Q. Using Exhibit 2803, the next entry is 1984, "Tobacco Institute offers 'Helping Youth Decide', 'Helping Youth Say No' guide books to parents." Would you explain that program for the ladies and gentlemen of the jury, please?
A. That was a program in which we and the National Association of State Boards of Education cooperated to distribute these two booklets that are named. The booklets were written by child psychologists and child guidance experts at the National Association of State Boards of Education. They were an attempt to give parents in particular, but also really anyone who had substantial contact with young people, some good guidance on how to help youngsters make good decisions about challenges that they were very likely to face as they were growing up. And then the second booklet, Helping Youth Say No, went a little further to help those same parents and other people who were in constant contact with youngsters, help them give these youngsters some guidance on how to say no to peer group pressure, how to handle things that came up about smoking, about drinking, about sexual activity, about drugs, all things that kids face as they're growing up. We knew that smoking wasn't the only thing that kids face as an issue, it was one of many, and we decided that, with the assistance of National Association of State Boards of Education, it was a good idea to try to address them all in these booklets that we made available free of charge to -- to parents.
Q. Did you personally make any speeches dealing with this subject as a part of this program?
A. Oh, yes, sir. I traveled extensively around the country to give -- give presentations on this subject, to be interviewed by radio and television reporters and to give presentations to public groups.
Q. Would you turn to the next exhibit in the book in front of you, which is 000531. Do you have that in front of you?
A. Yes, sir, I have that.
Q. Is that an example of such a speech?
A. Yes, sir, it is.
MR. BLEAKLEY: Your Honor, we offer Exhibit 000531.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive 000531.
BY MR. BLEAKLEY:
Q. This is "STATEMENT OF WALKER MERRYMAN, VICE PRESIDENT, TOBACCO INSTITUTE, SEPTEMBER 25, 1984;" is that correct?
A. Yes, sir, that's correct.
Q. And where was this speech given?
A. This was at the National Press Club in Washington, D.C.
Q. And to whom were you making this speech?
A. I was making these remarks to reporters who had gathered to hear of this project that we were undertaking.
Q. And who is the Mrs. Davidson referred to in the second paragraph of your speech?
A. That would be Jolly Ann Davidson, who was past president of the National Association of State Boards of Education.
Q. And how did you happen to be making the speech together with Ms. Davidson?
A. She and I were taking this opportunity to publicly launch Helping Youth Decide and making people aware of its existence.
Q. And you told this group that you were here this morning because we do not want youngsters smoking cigarettes?
A. That is correct.
Q. And that the program that was described by Mrs. Davidson, that's the program you've just been talking about; is that correct?
A. Yes, sir.
Q. That you were taking that policy one step further. "To date, we have avoided encouraging youngsters to smoke. This effort should actively discourage youth smoking." Is that correct?
A. That is correct.
Q. And is that in fact what you and The Tobacco Institute have done since 1984?
A. Yes, sir, we have.
Q. Now what materials did you disseminate and to whom as a part of this program?
A. We disseminated, as I mentioned before, these booklets that were written by child guidance specialists at the National Association of State Boards of Education, the booklet called Helping Youth Decide and then later Helping Youth Say No. We distributed them by advertising their availability free of charge. Some people in organizations wrote in for multiple copies, which we were happy to provide. And we distributed them, to the best of my recollection, in every state in the union.
Q. Is that the booklet that is referred to on page two of your speech?
A. Yes, sir, it is.
Q. And I see that in the second paragraph you said, "We are mindful that the booklet alone is not enough. It must find its way into the American home -- and that is why advertisements offering the booklet at no charge will begin appearing in major publications tomorrow." Is that -- was that part of the policy?
A. Yes, sir, it was.
Q. Would you turn to the next exhibit in your exhibit book there, which is 000233, an exhibit entitled "Hoping Youth Decide."
A. Yes.
Q. Do you have that in front of you?
A. Yes, I have that.
MR. BLEAKLEY: Your Honor, at this time we offer 000233.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive 000233.
BY MR. BLEAKLEY:
Q. Is this the booklet that you described in your speech and that you talked about here just a moment ago?
A. Yes, sir, it is.
Q. And this booklet was distributed throughout the United States?
A. It was.
Q. Was this published in 1984?
A. Yes, sir, it was.
Q. Take a look at the next exhibit in your booklet, which is 000238, another booklet entitled "Helping Youth Say No."
A. All right, sir.
Q. Can you tell us what the difference is between this booklet, 002 -- 000238 and 000233?
A. Well this booklet really is an attempt to expand and build on Helping Youth Decide by giving parents useful information that they can put into practice with their own youngsters on how to help those kids resist peer pressure, say no to their friends if their friends try to get them to use drugs, to smoke, to drink, to engage in -- in sexual activity or anything else that they might be faced with as adolescents. We thought it was a logical next step.
Q. So is it fair to say it was a subsequent version of the earlier booklet?
A. Yes, sir, it was.
MR. BLEAKLEY: We offer 000238, Your Honor.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive 000238.
BY MR. BLEAKLEY:
Q. And the next exhibit in your binder there is Exhibit 000226. This one is entitled "Tobacco: Helping Youth Say No." What is this?
A. This follows on to the first two, and as you'll notice, it is tobacco-specific, it says "Tobacco: Helping Youth Say No," and we decided that it made sense for us to zero in on this issue, tobacco use among youngsters, and again focus the attention on how parents, but also anyone, really, who deals with youngsters on a regular basis, can help youngsters deal with peer pressure that they face to smoke. And this booklet we thought was a very good teaching and learning tool for parents and their youngsters.
MR. BLEAKLEY: Your Honor, at this time we offer 000226.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive -- is it 226, counsel?
MR. BLEAKLEY: Yes, Your Honor.
THE COURT: All right.
MR. BLEAKLEY: 000226.
THE COURT: Court will receive 000226.
BY MR. BLEAKLEY:
Q. And this is the cover page of that booklet?
A. Yes, it is.
Q. "Tobacco."
And when did you start distributing this booklet?
A. This would have been about 1989, I believe.
Q. How many of these Helping Youth Say No booklets has The Tobacco Institute distributed throughout the United States?
A. I believe there have been well over a million copies distributed.
Q. And how many have been distributed in Minnesota, if you know?
A. I don't recall the specific number. We did keep a list -- of a tally state by state so that we were aware of how many. But certainly there was distribution within Minnesota because people saw the ads and -- and wrote or called to get copies.
Q. Referring, if you would, back to the time line, the next entry is for 1986, "Tobacco Institute funds 'Community -- Community Alliance Programs'."
Can you explain for us what these community alliance programs were?
A. Yes, sir. Those were programs that we funded in communities around the country to encourage grass roots organizations to become familiar with the publications Helping Youth Decide, Helping Youth Say No, and distribute them more intensively at the -- at the grass roots level in communities. As I say, there were a number of grants in towns nationwide to help do that.
Q. Grants. You mean money grants?
A. Small grants of about, I believe, three thousand dollars was typical, to pay for administrative costs just to get the program off the ground.
Q. And these were funded by The Tobacco Institute?
A. Yes, sir, they were.
Q. The next entry is for 1990, and it's entitled "C.O.U.R.S.E. CONSORTIUM releases 'Tobacco: Helping Youth Say No'. Tobacco Institute launches 'It's the Law'." Can you tell us about those programs?
A. Yes. The family C.O.U.R.S.E. Consortium was an organization made up of educators, child-guidance specialists, people who were interested in adolescent issues who had agreed to distribute -- be the administrative distribution point for our booklet "Tobacco: Helping Youth Say No." They were volunteers who became involved in this effort, I think at the -- as I recall, at the request of Mrs. Davidson, whom we talked about earlier. They also were very instrumental in making certain that Tobacco: Helping Youth Say No got substantial publicity in their communities.
The It's the Law project was something separate that The Tobacco Institute did in working with the retail community. Tobacco retailers, obviously, are the ones who sell the cigarettes to people, convenience stores, grocery stores, chain drug stores, and we wanted to help those retailers understand what their responsibilities were under the laws in their state with respect to the sale of cigarettes. We wanted them to understand what the law was, we wanted them to observe it.
We provided them with free material that they could give to their store clerks so that the clerks and managers could understand what the law was. We provided them with material that they could display in their stores on their store windows, on their doors, at the point of purchase, at the cash register, that said "It's the Law. We don't sell tobacco products to anyone under the age of 18" in most states, in three states it's 19 years, and we made wide distribution of that material free of charge to retailers across the country.
Q. Approximately how many of these kits did you distribute to retailers across the country?
A. There were, I believe, 300,000 kits that had been sent to retailers, either directly in response to advertisements we placed in retail trade magazines or through tobacco wholesalers. I think in some cases the manufacturing companies themselves in their contacts with retailers dropped off these free kits.
Q. Were these It's the Law kits distributed in Minnesota, to retailers in Minnesota?
A. Yes, sir, they most certainly were.
Q. The next entry on Exhibit 2803 is for December 1995, "Coalition for Responsible Tobacco Retailing launches 'We Card'." Can you tell us about that? What was that program?
A. Yes, sir. That was a coalition of which The Tobacco Institute was a part, but it also included other trade associations representing the retail and wholesale community. It was a follow-on, a natural one I think, to the It's the Law program, because what we were doing with We Card was distributing, again free of charge, material to retailers that they could display to tell customers that they were serious about observing the law, that they were going to card people who wanted to make tobacco purchases. And again, these kits were -- were state-specific because not every state has a uniform law when it comes to the sale of tobacco products. Again, the -- the Coalition for Responsible Tobacco Retailing distributed this material free of charge to retailers around the country. I've seen it in use in many parts of the country. And it included -- the coalition, as I said, included not just The Tobacco Institute, but also other trade associations for the retail and wholesale industries.
Q. Exhibit 000149 is a box entitled "We Card." Is this the We Card kit that's distributed to retailers across the United States?
A. Yes, sir, it is.
MR. BLEAKLEY: Your Honor, may I approach the witness?
(Box handed to the witness.)
MR. BLEAKLEY: At this time we offer 000149.
MR. CIRESI: No objection, Your Honor.
THE COURT: Court will receive 000149.
BY MR. BLEAKLEY:
Q. Can you open up 000149 and sort of show the ladies and gentlemen of the jury what -- what it consists of and how it was used.
A. Well this, for example, would be a sign for the counter, perhaps next to the cash register. This is a video tape that store employees and store managers would watch so that they could understand why this was an important subject and what their duties and responsibilities would be. A number of lapel pins for clerks to wear so that customers would be aware of the fact that that store is serious about observing the law. This was a calendar, and I think you've probably seen similar ones in, for example, liquor stores. It tells you how old you have to be in order to buy tobacco products in that store. And there is additional training material for the retailer and for the retailer's employees and additional signage that can be placed on the window, on the glass door, on the cash register. And then, obviously, order forms for more material in case the retailer needs additional supplies.
Q. And was this kit, 000149, distributed to retailers in the state of Minnesota?
A. Yes, sir, it's been distributed to retailers in Minnesota. I think about 14,000 of these kits have gone to retailers here.
Q. Now we talked a moment ago about the speech that you made at the National Press Club. Have you made other speeches that have dealt with The Tobacco Institute's policy that youth shouldn't smoke?
A. Yes, sir.
Q. Personally?
A. Yes, sir, I have.
Q. Throughout various parts of the United States?
A. Yes, sir. I've traveled extensively to do that.
Q. Have you ever come to Minnesota to talk about that program?
A. I have.
Q. When was that?
A. Mrs. Davidson and I had been in Minnesota on more than one occasion in the 1980s to speak about the industry's anti-youth-smoking projects.
Q. And what did you do when you were here in Minnesota?
A. We talked to reporters for radio and television stations and newspapers.
Q. And did you talk with anyone else when you were here in Minnesota, representatives of the state of Minnesota?
A. Yes. I have personally had a meeting with a representative of the Minnesota State Department of Health.
Q. And what was that person's name?
A. Mark Skubic, I believe.
Q. And tell us about your meeting with Mr. Skubic. What -- what happened?
A. It was a meeting to give him some of the details of the tobacco industry's involvement in these projects, in these programs to try to discourage youth smoking, and so I gave him a briefing on what the industry had done, what we had accomplished so far, what we were looking forward to in the future.
Q. Did you provide any materials to Mr. Skubic when you met with him?
A. I believe I did, yes, sir.
Q. What did you provide?
A. Copies of our booklets.
Q. The Helping Youth Decide booklets?
A. Yes, sir.
Q. Do you have any idea how many you gave him?
A. No, I don't recall.
Q. Okay. Now is The Tobacco Institute still today, in 1998, involved in a campaign to -- involving youth smoking?
A. Well yes, sir, we are. We certainly are.
Q. And are you personally continuing to be involved in that?
A. I am.
Q. Has anyone from any of the member tobacco companies ever discouraged you or The Tobacco Institute from engaging in these programs?
A. No, sir, not to the best of my knowledge.
Q. Have you ever received any indication from any of the people with whom you meet that the members of The Tobacco Institute were not fully behind the programs?
A. No, sir.
Q. Have they told you that they were, in fact were behind the program?
A. Absolutely.
MR. CIRESI: Objection, calls for hearsay, Your Honor.
THE COURT: You may answer that.
A. Absolutely they have, yes, sir.
Q. Now Mr. Ciresi asked you a number of questions about The Tobacco Institute's public statements with regard to smoking and health. You remember those questions?
A. Yes, sir.
Q. Does The Tobacco Institute today in 1998 issue press releases and publications dealing with smoking and health?
A. No, sir, we don't.
Q. How --
When did you stop doing that?
A. Well I think the last time I recall we issued anything was in the early 1980s.
Q. You'd still respond to inquiries from people about the Institute's position if they asked; is that right?
A. Yes, sir. If a reporter called and asked for our opinion on a smoking- and-health issue, if it was something that I could respond to, I would.
Q. But you don't prepare and issue on your own press releases or public statements, and haven't for several years; is that right?
A. That is correct.
Q. And why is that? Why -- why don't you do it any more?
A. Well it seemed that there was less and less interest in the subject as the American public believed that smoking caused disease.
MR. CIRESI: I'm going to object to his conclusion as to what the American public thought. There's no foundation.
THE COURT: Sustained.
MR. BLEAKLEY: Your Honor, this -- Your Honor, this is being offered for the state of mind of Mr. Merryman and The Tobacco Institute and not for the purpose of proving, in fact, what the public knew or believed.
THE COURT: Sustained.
BY MR. BLEAKLEY:
Q. Now I want to ask you a couple of questions about documents that Mr. Ciresi showed you during his direct -- during his cross-examination, one of which is Trial Exhibit 18089. I'm not sure which of those books it's in.
MR. CIRESI: The number again, counsel.
MR. BLEAKLEY: 18089.
MR. CIRESI: It would be in volume two.
MR. BLEAKLEY: Volume two? Thank you.
A. I have it, sir.
Q. Do you remember being shown that --
A. Yes, sir.
A. -- exhibit by Mr. Ciresi?
A. Yes, sir, I do.
Q. And do you remember being asked by Mr. Ciresi whether Philip Morris ever showed you that document?
A. Yes, sir.
Q. And do you remember being asked whether or not The Tobacco Institute had ever disclosed the contents of that document to the public or to Congress?
A. I recall that question, yes, sir.
Q. Now this exhibit, Trial Exhibit 18089, is a document written by William L. Dunn, Jr., Philip Morris Research Center, Richmond, Virginia.
Do you know Mr. Dunn?
A. No, sir.
Q. Do you know what he does?
A. No, sir.
Q. Do you know what purpose he had when he wrote this document?
A. No, I don't, sir.
Q. Do you know who attended this conference that Mr. Dunn was talking about in this document?
A. No, I don't, sir.
Q. Do you know whether in fact this conference that Mr. Dunn is writing about was a Philip Morris conference?
A. No, I don't know that, sir.
Q. Do you know, for example, looking at page two, when Mr. Dunn says, "In January 1972, the Dutch side of St. Martin was invaded by an unlikely party of twenty-five scientists," do you know whether those scientists were Philip Morris scientists or whether they were scientists from all across the country?
A. I do not know, sir.
Q. Do you know whether the pharmacologists, sociologists, anthropologists and psychologists referred to were Philip Morris employees?
A. No, sir, I do not.
Q. So far as you know, they were not Philip Morris employees.
MR. CIRESI: Well objection, calls for speculation. He just said he didn't know who they were.
THE COURT: Sustained.
BY MR. BLEAKLEY:
Q. Do you know what the Philip Morris Research Center is?
A. I've heard the name, and I believe I've seen the building from the highway, but that would be about the extent of my knowledge.
Q. Do you know how many employees there are in the Philip Morris Research Center?
A. No, sir, I don't.
Q. Do you know whether there are other scientists in the Philip Morris Research Center besides Mr. Dunn?
A. I don't know anything about the center, sir.
Q. Do you know whether other scientists in the Philip Morris Research Center have the same views that Mr. Dunn expressed in this document?
MR. CIRESI: Objection, no foundation. He just said he didn't know anything about the center.
THE COURT: Sustained.
Q. Do you know whether Philip Morris as a company endorsed the views expressed in this document?
A. No, sir, I don't know.
Q. Do you have any idea why Mr. Dunn wrote this document?
A. No, sir.
MR. CIRESI: Objection, Your Honor, no foundation. He already disqualified himself.
THE COURT: He's answered it.
Q. Do you know what was done with this document after it was written?
A. No, sir.
Q. Have you ever spoken to Mr. Dunn about this document?
A. No, sir.
Q. Do you remember being asked by Mr. Ciresi about the statement in this document, "Smoke is beyond question the most optimized vehicle of nicotine and the cigarette the most optimized dispenser of smoke?"
A. Yes, sir.
Q. And you said you'd never seen that before?
A. That is correct.
Q. Take a look, if you would, at the next paragraph of that exhibit, which reads, "Lest anyone be made unduly apprehensive about this drug-like conceptualization of the cigarette, let me hasten to point out that there are many other vehicles of sought-after agents which dispense in dose units: Wine is the vehicle and dispenser of alcohol, tea and coffee are the vehicles and dispensers of caffeine, matches dispense dose units of heat, and money is the storage container, vehicle and dose-dispenser of many things." Do you see that?
A. Yes, sir, I do.
Q. Had you ever seen that before either?
A. No, sir, I had not.
Q. So you don't have any knowledge whatsoever of why this document was prepared, what use was made of it by Philip Morris or anyone else; is that right?
A. That is correct, sir.
Q. Okay. Now you were asked yesterday by Mr. Ciresi some questions about the Auerbach smoking dog study. Do you remember that?
A. Yes, sir, I do.
Q. And you were shown a number of exhibits, including Exhibit 18325, The Tobacco Institute release concerning the Auerbach smoking dog study. Do you remember that?
A. Yes, sir, I do.
Q. Now let me ask you a couple questions about this.
To your knowledge, has any scientist ever been able to replicate the results of the Auerbach smoking dog study?
MR. CIRESI: Objection, no foundation.
MR. BLEAKLEY: Your Honor, --
THE COURT: You'll have to --
MR. BLEAKLEY: -- he was asked extensive questions about this and his understanding.
THE COURT: Well you'll have to lay a foundation for the question.
MR. BLEAKLEY: All right. Thank you.
BY MR. BLEAKLEY:
Q. Did The Tobacco Institute follow what was being said in the medical and scientific literature about the Auerbach smoking dog study after it was published and when this press release came out?
A. I believe we did, sir.
Q. And did you follow, for example, what was said by the Surgeon General of the United States about this study in the 1982 Surgeon General's report?
A. Yes, sir.
Q. And in the 1982 Surgeon General's report, did the Surgeon General of the United States endorse the Auerbach smoking dog study?
A. No, sir, he did not.
Q. And in the course of following the Auerbach smoking dog study, was the Tobacco Institute aware of whether or not any scientist has ever been able to replicate the results of that study?
MR. CIRESI: Still no foundation, Your Honor.
THE COURT: You'll have to lay further foundation.
BY MR. BLEAKLEY:
Q. Did you and The Tobacco Institute follow the medical literature in order to determine whether any other scientist was able to replicate that study?
A. We did.
Q. And did you find that any other medical scientist, any other scientist has ever been able to replicate that study?
A. To the best of my knowledge as a layman, I'd say that there's been no repeat or replication of this study.
MR. CIRESI: Move to strike, no foundation.
THE COURT: That answer will be stricken.
MR. BLEAKLEY: At this time, Your Honor, if it hasn't already been offered, I'd like to offer the 1982 Surgeon General's report which the parties have agreed can be admitted. I can't remember, frankly, whether it's already been placed in evidence or not.
THE COURT: I believe it is.
MR. BLEAKLEY: The 1982?
MR. CIRESI: Well, we've stipulated that they're all in evidence. This one was not designated to be used with this witness, but we have no objection to it, Your Honor.
THE COURT: It will be received.
Why don't we take a short recess 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.
(Side-bar discussion as follows:)
THE COURT: Just to remind -- a reminder to counsel, when you're conducting your examination of the witness, please conduct it behind the podium. Okay? I just want to remind you.
MR. CIRESI: Okay.
(Side-bar discussion concluded.)
THE COURT: Before we continue with the testimony, members of the jury, I just want to apprise you of the fact that next Monday is a -- I believe it's a legal holiday, and so that you have some advanced notice, you will not be required to be here for trial. That day will be spent -- devoted to legal motions by the parties, and the only ones that need be present are the attorneys. And those hearings will begin at 9:30 on Monday. So that when you make your plans, you can plan on a long weekend away from the case.
Go ahead, counsel.
MR. BLEAKLEY: Thank you, Your Honor.
Your Honor, at this time we would offer in evidence the 1982 Surgeon General's report, which is PYA000085.
MR. CIRESI: No objection, Your Honor.
THE COURT: That will be received into evidence.
BY MR. BLEAKLEY:
Q. I want to direct your attention, Mr. Merryman, to page 184 of the 1982 Surgeon General's report, Exhibit PYA000085, which is entitled "Inhalation Studies." Reads, "Ideally, a suspected carcinogen should be tested using the route of administration corresponding to the exposure of humans. The experimental induction of respiratory cancer with tobacco smoke is beset with major difficulties because of toxicity introduced by high carbon monoxide concentrations (generally 3.5 to 5 volume percent), and high levels of nicotine. Furthermore, laboratory animals are not willing to inhale aerosols very deeply and are especially reluctant to inhale tobacco smoke. Inhalation studies have been explored by training Rhesus monkeys and baboons to smoke cigarettes. This approach does not produce respiratory neoplasms because of insufficient exposure time and because of the tendency of the animals merely to puff rather than to inhale.
"Invasive and noninvasive bronchoalveolar tumors developed in several of 78 dogs that were trained to smoke through a tracheostoma and that smoked cigarettes daily for about two and a half years. In a group of 24 dogs that smoked nonfilter cigarettes, 2 animals developed early invasive squamous-cell carcinoma in the bronchi. However, this observation has not been repeated so far."
Do you see that from the 1982 Surgeon General's report?
A. Yes, sir, I do.
Q. And you had seen this in the 1982 Surgeon General's report; is that right?
A. Yes, sir.
Q. And this followed the press release issued by The Tobacco Institute criticizing the Auerbach smoking dog study; is that right?
A. Yes, sir, that's correct.
MR. BLEAKLEY: I have no further questions, Your Honor.
BY MR. CIRESI:
Q. Good morning, Mr. Merryman.
A. Good morning, sir.
Q. How are you today?
A. Fine, sir. And you?
Q. Good. Good. I'm fine, thank you.
Can we go back to the Surgeon General's report that you were just looking at. Mr. Bleakley directed your attention to the portion of the report which says, "However, this observation has not been repeated so far." Correct?
A. Correct, sir.
Q. Now what was being reported there in the Surgeon General's report was that the specific test that was conducted by Drs. Hammond and Auerbach had not been repeated; correct?
A. I believe that's correct.
Q. But of course the Attorney General pointed out all kinds of inhalation studies that had been completed in other animals in that section of the report; did they not?
A. The Surgeon General? Yes, sir.
Q. Yes.
And in that portion of the report it was disclosed that other animal studies showed the development of precancerous and cancerous conditions; didn't it?
A. There were reports -- there were summaries of other reports, yes, sir.
Q. And do you know if American Tobacco or Philip Morris provided their information that they had from the Auerbach-Hammond report to the Surgeon General?
A. I don't know what the companies may have provided to the Surgeon General, no, sir.
Q. Sir, there is no reference in the Surgeon General's report that the internal information of the companies was provided; is there?
A. Not that I'm aware of, no, sir.
Q. And when you read it, you didn't see any reference to the fact that the companies provided their internal information to the Surgeon General; did you?
A. I have not seen that, no, sir.
Q. And sir, if you go to -- I think it may be volume one -- or it may be volume two of the documents I gave you, it's Exhibit 21905. You'll see it on the outside. It would be volume two, sir.
A. I think I have it. 21905?
Q. Correct.
A. Yes.
Q. That's the Gallaher study; correct?
A. It is a document from Gallaher Limited, yes, sir.
Q. The one we looked at yesterday; correct?
A. It is.
Q. And can you direct your attention to page four. You'll recall we looked at that yesterday; did we not?
A. We did, yes, sir.
Q. In the last paragraph in this document of Gallaher, which went to American Tobacco, it's reported that there are other experimental studies going on, run by several independent research laboratories; isn't that right?
A. It does make reference to other ongoing work, yes, sir.
Q. And each one of which was of a very high caliber; correct?
A. That's the view of the author of this document, yes, sir.
Q. Now did The American Tobacco Company or Philip Morris report that to the Surgeon General, if you know?
A. I don't know, sir.
Q. You didn't see any reference to it when you read the Surgeon General's report; did you?
A. No, I did not.
Q. You really didn't read the Surgeon General's report; did you, sir?
A. I read many of the Surgeon General's reports, yes, sir.
Q. Did you read that Surgeon General's report though?
A. I did.
Q. Let me ask you this: Did you read that section or was it pointed out to you by your lawyers?
A. Both, sir.
Q. And when it was pointed out by your lawyers, you read it; is that right?
A. I read it, yes, sir. I read it previous to that as well.
Q. What other part of the Surgeon General report of 1992 did you read?
A. Did you say '92, sir?
Q. Excuse me, '82.
A. When the report first came out I recall reading several portions of it, sir.
Q. How did you know which portions to read and which ones not to read?
A. I skimmed through it and read extensively those portions which seemed to interest me at the time.
Q. Why did the smoke inhalation section interest you at the time?
A. I don't recall that that specific section interested me at the time, sir.
Q. Well that's the one that you pointed out here today that you had read; isn't that right?
A. Yes, sir.
Q. Is the first time you read it when it was pointed out to you by counsel or --
A. No, sir.
A. -- back in 1982?
A. No, sir. I certainly was aware of it in 1982.
Q. That wasn't my question. Did you read it in 1982?
A. Yes, sir.
Q. Okay. Then what drew your attention to that section?
A. I simply was interested in it. I don't happen to recall the reasoning why I was interested in it.
Q. Isn't it fair to state you wanted to know whether there were biological tests going on in which cancer was being developed as a result of cigarette smoke, that's why you read it?
A. As I said, sir, I don't recall specifically why I read it in 1982.
Q. That's what the section is about; isn't it, Mr. Merryman?
A. That's what part --
That's what that section of the report is about, yes, sir.
Q. Then isn't it fair for an objective person, judging your testimony, to conclude that the reason you read it is because you wanted to know whether there were studies being conducted on animals which showed that cancer was being developed as a result of cigarette smoke? Isn't that reasonable to conclude?
MR. BLEAKLEY: Objection, Your Honor, that's argumentative.
THE COURT: It is argumentative.
Q. Sir, isn't that the reason you read it, because you wanted to know whether or not animal studies were being done which would show the development of cancer as a result of exposure to cigarette smoke?
A. I can't honestly sit here today and tell you why I may have read something in 1982, sir.
Q. But you will agree that that's all that that section is directed to; isn't that right?
A. Yes, sir.
Q. Now the tobacco companies conducted other in-house studies; didn't they?
A. I assume that the tobacco companies do in-house research, sir.
MR. CIRESI: May I approach, Your Honor?
(Document handed to the witness.)
MR. BLEAKLEY: Do we know what exhibit is being used?
(Document handed to Mr. Bleakley.)
BY MR. CIRESI:
Q. Now sir, I've handed you a document which is marked 10465, it's dated December 15th, 1969, it's an R. J. Reynolds document, carbon copies to Osdene and Wakeham, it's from Mr. Carpenter from a Mr. Weissbecker.
Have you seen this document before?
A. No, sir.
MR. CIRESI: Your Honor, we'd offer Exhibit 10465.
MR. BLEAKLEY: I'm advised by counsel, Your Honor, that this is not an R. J. Reynolds document.
MR. CIRESI: Well --
MR. BLEAKLEY: And therefore we object to the receipt of the document on the grounds of lack of foundation.
MR. CIRESI: Your Honor, it's recross. They did not advise us of the Surgeon General's report, they did not advise us of another document that was used. This is recross, and it was opened up by his testimony with regard to the Surgeon General's report. And I think I misspoke and said it was an RJR document; it's a Philip Morris document.
THE COURT: Well, I would intend to allow its introduction if I could read what it said. The second page that I have is backwards, reversed, and upside down.
MR. CIRESI: I'm -- I'm only offering the first page, Your Honor.
(Laughter.)
MR. CIRESI: Mine is similar to yours, and I will remove the second page.
THE COURT: I'll feel much more comfortable then.
MR. CIRESI: Which I believe, Your Honor, is just the same as the first page, but when we copied it at the break, it was reversed.
THE COURT: All right. Court will receive 10465.
And I should also mention yesterday that the defendant did introduce Exhibit A2008005, and the record should show that that has been received into evidence.
MR. WEBER: I think that was AZ, Your Honor.
THE COURT: I'm sorry, AZ, right.
MR. WEBER: Thank you.
THE COURT: Okay.
BY MR. CIRESI:
Q. Now sir, you have Exhibit 10465 in front of you?
A. Yes, sir, I do.
Q. And does this report "RJR's Biological Research Program," a Philip Morris document?
A. That's the title of it, yes, sir, "RJR's Biological Research Program."
MR. BLEAKLEY: Objection, Your Honor, the document does not say it's a Philip Morris document. I object to Mr. Ciresi characterizing a document.
MR. CIRESI: Well, Your Honor, this document was produced out of Philip Morris's files.
THE COURT: All right.
MR. CIRESI: Bears their number.
THE COURT: You'll have to rephrase your question, though, counsel.
BY MR. CIRESI:
Q. I want you to assume it's a Philip Morris document. Can you do that, sir?
A. All right, sir.
Q. And you know that Dr. Osdene and Dr. Wakeham are Philip Morris employees?
A. I believe they were, yes, sir.
Q. And do you know if Mr. Carpenter and Mr. Weissbecker were Philip Morris employees?
A. Those names are not familiar to me, sir.
Q. Now do you see here that it's reporting that Mr. Weissbecker met with Dr. Price from R. J. Reynolds at a CTR-USA meeting on December 11th and 12th?
A. Yes, sir.
Q. And do you see that he's reporting that Dr. Price had mentioned doing chronic cigarette smoke exposure studies with rats?
A. I see that.
Q. And you see that he then reports what the nature of the study was, with the animals receiving up to 500 cigarettes, and emphysema was produced?
A. That's what he says.
Q. And do you see that Dr. Price was also expressing an interest in nicotine pharmacology and that his work was integrating with their packaging toxicity work?
A. I see that, yes, sir.
Q. And do you see that he was also -- they hired the wife of an instructor from the Bowman Gray School of Medicine, and that she was doing research with lung macrophages?
A. I see that.
Q. And do you see that Dr. Price reported that he was interested in learning about the gas chromatographic profile of cigarette smoke within animal exposure chambers?
A. That's what's in the bottom, yes, sir.
Q. And an animal exposure chamber is a lung; correct?
A. I don't know, sir.
Q. And do you know, sir, that when Philip Morris found out about this, their CEO called RJR's CEO and demanded that this be shut down because it was in violation of an agreement between the companies that they would not do in- house biological research?
MR. BLEAKLEY: Objection, Your Honor, that's argumentative, beyond the scope of direct, beyond the scope of cross.
THE COURT: It's -- I don't believe it's argumentative, but it is beyond the scope.
MR. CIRESI: Well Your Honor, they were talking about biological research, and that's why I've addressed this issue.
THE COURT: The last question is beyond the scope, counsel.
BY MR. CIRESI:
Q. Are you aware of whether the companies were doing in-house biological research?
MR. BLEAKLEY: It's been asked and answered several times in this testimony before, Your Honor.
THE COURT: You can answer that.
A. No, sir, I'm not.
Q. Were you aware of an issue relating to the Mouse House at Philip -- or at R. J. Reynolds?
A. I've heard of that in litigation, sir, but that's all.
Q. You've read about it in the papers; haven't you?
MR. BLEAKLEY: Your Honor, this is beyond the scope of Mr. -- my examination and Mr. Ciresi's examination.
THE COURT: No, I think -- I think this is -- I think this is the area that you opened up on.
MR. BLEAKLEY: No, Your Honor. I was -- my -- what I opened up --
THE COURT: Counsel --
MR. BLEAKLEY: -- was the Auerbach smoking dog study.
THE COURT: Counsel, I think what was opened up was the experiment on animals, and I'm going to allow it.
MR. CIRESI: Can I have the question back, please?
(Record read by the court reporter.)
A. I don't recall if I've read about it in the newspapers.
Q. But you have an awareness of that issue; don't you?
A. Vague and general, yes, sir.
Q. And your vague and general awareness is that Philip Morris demanded that RJR shut down the in-house biological research because it was contrary to an agreement not to do such research; isn't that right, sir?
MR. BLEAKLEY: Objection, Your Honor, it's beyond the scope and it's argumentative.
THE COURT: It is beyond the scope. Sustained.
Q. Do you know if RJR shut down any biological research that they were doing in 1970?
MR. BLEAKLEY: Same objection, Your Honor.
THE COURT: Sustained.
BY MR. CIRESI:
Q. Now sir, you talked about the efforts on the part of The Tobacco Institute, and I forget the exhibit number, two --
MR. CIRESI: Do you have the demonstrative exhibit number, counsel?
MR. BLEAKLEY: It's 2803, I think.
MR. CIRESI: 2803.
Q. 2803. Do you remember which one it was, sir?
A. Yes, sir.
Q. Now what you were saying, as I take it, is that you were going out and speaking on behalf of The Tobacco Institute with regard to children smoking; is that right?
A. My personal appearances were part of a much larger program, yes, sir.
Q. And you've told us about Exhibit 341, which was part of the literature that went out; is that right?
A. Which one was that, sir?
Q. Defendants' Exhibit 341. It would be in the defendants' book.
A. Yes, sir.
Q. You recall all those exhibits. Helping Youth Say No, Exhibit 3227, remember that one?
A. Yes, sir.
Q. Helping Youth Decide, the last three numbers were Exhibit 233, you remember that?
A. I do.
Q. You remember the scope and activities of The Tobacco Institute, remember that exhibit?
A. I do, sir.
Q. And then you remember your speech which was Exhibit 531?
A. Yes, sir, I remember that.
Q. Okay. Now can you point the ladies and gentlemen of the jury to that portion of any of those exhibits where you tell people, particularly youth, that smoking is addictive?
A. I don't believe there's any reference in those documents to that, sir.
Q. Can you point where in any of those documents you tell youth that smoking causes diseases such as cancer, emphysema, et cetera? Where do you say that here?
A. I don't believe there's any such reference to that in those documents, sir.
Q. Can you tell us where in any of these documents you say that the tobacco companies manipulate nicotine in order to addict people?
A. There is nothing in those documents that has to do with nicotine, sir. That's not the purpose of those documents.
Q. The purpose was to educate youth; wasn't it?
A. The purpose of the brochures that we distributed was to assist parents in helping youngsters to avoid bad decisions.
Q. So these were directed to parents; is that right?
A. Those brochures were certainly directed to parents and others who had regular contact with youngsters, yes, sir.
Q. Where do you tell the parents, then, that nicotine is addictive in those documents?
A. There is no place in those documents where such a statement appears, sir.
Q. Where do you tell them that you manipulate nicotine?
A. That's not in there.
Q. Where do you tell them that the cigarette is a drug-delivery device?
A. Certainly I wouldn't expect that to be there either, sir.
Q. Where do you tell the parents that cigarette smoking causes lung cancer, emphysema, larynx cancer, et cetera? Where do you say that?
A. That's not there because we weren't attempting to give people a health- education message, we were attempting to give parents and others who work with youngsters some good, solid ideas on how to help kids avoid bad decisions and help them avoid peer pressure.
Q. You weren't attempting to tell them about health issues; is that right? Is that what you said?
A. It was the information we had that the American public and even youngsters, according to the Surgeon General, believed that smoking was hazardous to health.
Q. That's not what I asked you.
You weren't --
A. You were --
Q. You weren't trying to tell them about health issues; were you, sir?
A. No, the -- the purpose of those -- of those brochures, those booklets, was to give parents the information on how they could help their kids make better decisions growing up, whether it was cigarettes or drinking or drugs or other things that they might encounter.
Q. Is your answer no? You weren't trying to tell them about health issues; were you?
A. No, that wasn't the purposes of those brochures.
Q. So your answer is no; is that right?
A. That's correct.
Q. So you weren't in those documents discharging your responsibility of accepting an interest in people's health as a basic responsibility, paramount to every other consideration in our business; is that right? You weren't doing that in those documents; were you, sir?
A. The documents were not meant to address health concerns. We thought that those documents could be better used -- those brochures could be better used to give parents useful information on how to guide their kids.
Q. And sir, the fact is the amount of money spent promoting and marketing the cigarettes vastly exceeded what was spent on any of these programs; didn't it?
A. As I -- as I said before, I believe in response to your line of questioning on that issue, I haven't added up what the marketing budgets were for the tobacco companies in any combination of years.
Q. Well let's take a look at some of them. Turn to Exhibit 20177.
THE REPORTER: 20177?
MR. CIRESI: Correct. 20177. Let me hand up copies of it for you, sir.
May I approach, Your Honor?
(Document handed to the witness.)
THE WITNESS: Thanks.
MR. CIRESI: You're welcome.
MR. CIRESI: Your Honor, we'd offer Exhibit 20177. They are three demonstrative exhibits -- excuse me, three summaries pursuant to 1006, based on interrogatory answers provided by the defendants under oath in this case.
MR. BLEAKLEY: I'm sorry. You were offering that?
MR. CIRESI: Yes.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 20177.
BY MR. CIRESI:
Q. Now the first exhibit, sir, is R. J. Reynolds. We'll also put it up on the screen.
Now this shows youth prevention expenditures, based on answers to interrogatories, by Philip Morris --
MR. CIRESI: I apologize for that.
Q. -- for the period 1983 to 1994. Do you see that?
A. I do.
Q. And during that period of time Philip Morris, in those eleven years, spent 15,914,336,845 dollars for advertising, marketing and promotion. Do you see that?
A. Yes, sir.
Q. And what they spent -- that little sliver there is what they spent on youth prevention, 20,818,740 dollars. Do you see that?
A. Yes, I see it.
Q. Now as a communicator, one who is involved in TV, one who has communicated on behalf of the industry, you would admit that saturation through the devotion of resources has an impact; doesn't it, sir?
A. Yes, sir.
Q. And you would agree that there is a vast disparity over an eleven-year period between almost 16 billion dollars and a little bit under 21 million dollars; wouldn't you?
A. There is a difference in the figures. There's also a difference in what that money is spent for.
Q. And if it's spent for advertising, marketing and promoting, that's promoting, advertising and marketing of cigarettes; isn't it?
A. Yes. And as I understand it from the Federal Trade Commission reports, the vast majority of that money is in coupons and -- and slotting allowances.
Q. You mean you give coupons, you give hats, jackets, other paraphernalia; isn't that right?
A. Well the coupons are generally for cents-off promotions. They're not --
Q. So --
A. They're not advertising as we might think of advertising in the usual sense.
Q. Well they're advertising according to Philip Morris in its sworn answers to interrogatories.
A. This is advertising, marketing and promoting.
Q. Right. And it is --
A. Coupons I don't think can be fairly regarded as advertising.
Q. And is it fair to state, sir, that children generally have less money than do adults?
A. I don't know if they do or not, but I suppose as a general proposition one could say that.
Q. Now let's take a look at what RJR did during that period of time.
Do you have the RJR up there, sir?
A. Yes.
Q. Now RJR, during the same period 1983 to 1994, spent 6,132,810,796 dollars on advertising, marketing and promotion; correct?
A. Yes, sir.
Q. And what they spent on youth prevention expenditures during that eleven- year period was 19,099,617 dollars; correct?
A. Yes, sir.
Q. Again, a vast disparity in resources; correct?
A. There is a difference in the numbers, yes, sir.
Q. Vast difference; isn't there, sir?
A. There -- there is a difference in the numbers.
Q. You wouldn't agree it's vast.
A. Certainly substantial. And I think there's good reasons for it.
Q. Now sir, let's take a look at Brown & Williamson during the same period of time. Do you have that there?
A. Yes, I do, sir.
Q. Now Brown & Williamson during that eleven-year period spent 4,995,213,427 dollars on advertising, marketing and promotion; correct?
A. Yes, sir.
Q. And what they spent on youth prevention was 642,805 dollars; correct?
A. That is correct.
Q. Again, a vast disparity between the two; correct, sir?
A. That certainly is a large disparity, yes, sir.
Q. Well let me use your definition. It's a substantial disparity; correct?
A. Certainly.
Q. Now during that same period of time, sir, The Tobacco Institute was fighting legislation in each and every state that would have prevented youth smoking; wasn't it?
A. I don't recall that we were fighting legislation that would have prevented youth smoking, sir.
Q. Can you direct your attention to Exhibit 14488. That's going to be in the larger book, sir, volume two.
Do you have it?
A. Yes, sir, I have it.
Q. This is a Tobacco Institute document; isn't it?
A. It appears to be.
Q. Mr. Mozingo is the senior vice-president for tobacco activities?
A. Mr. Mozingo, I believe at the time, was senior vice-president for state activities.
Q. Okay. And Mr. Brozek was a Minnesota Tobacco Institute operative; was he not?
A. I believe Mr. Brozek was regional vice-president. He wasn't based in Minnesota.
Q. Did he have Minnesota under his authority, sir?
A. I believe he did.
MR. CIRESI: Your Honor, we'd offer Exhibit 14488.
MR. BLEAKLEY: No objection.
THE COURT: Court will receive 14488.
BY MR. CIRESI:
Q. First of all, we see on the title page that it's to Mr. Mozingo from Mr. Brozek, and it's called "minnesota Legislative Status;" correct?
A. Yes, sir, it is.
Q. Now if I could direct your attention, first of all, to the "BACKGROUND" of this memorandum, I'd like to read a part, then ask you some questions.
"Since January, as you know, the situation in Minnesota has become 'uncommonly active'. A raft of legislative issues in the form of taxation, regulation and prohibitions have found their way through the Minnesota legislative process. The 39-point Technical Advisory Committee Report on Non- smoking and Health, introduced in November, held the promise of 39 separate legislative proposals to be advanced through both houses. This report, a revolutionary attack on our industry, was championed not only by anti-industry organizations, but also the strong direct lobbying of the Minnesota Department of Health. The ink was not yet dry on this report before our lobbyists initiated an aggressive and focused effort in communication with legislative leadership and targeted key legislative activities. This effort was successful in preventing a majority of the report from seeing its way from the drafting board to the legislators' hands."
Now did I read that correctly?
A. You did.
Q. And sir, in 1985, while you were a member of The Tobacco Institute, an aggressive campaign was instituted by the industry to kill bills in the Minnesota legislature which would have prevented youth smoking; isn't that right, sir?
A. That's not what this document says, no, sir.
Q. It doesn't say that. Well let's go through the document and see if it does or doesn't.
Do you know if it was directed to killing bills which would have funded health-related expenses caused by smoking?
A. I'd have to read the document, sir, in order to tell you what it says. I have not done that.
Q. You've never seen this before?
A. I don't frankly recall if I've seen it or not.
Q. It was one of the ones that we gave notice to the other side that would be used in your examination; wasn't it?
MR. BLEAKLEY: Your Honor, it doesn't make any difference whether it was one. The question is did he see it or didn't he see it.
THE COURT: Well that's a proper question. He can answer that.
MR. BLEAKLEY: Well it's -- it suggests somehow that there was an obligation on the part of us to show him every document they identified as an exhibit, and there is no such obligation.
THE COURT: Counsel, it does suggest that there's no surprise.
MR. CIRESI: Can you answer the question?
THE WITNESS: I'd appreciate if I could hear the question again.
Q. Was it one that was provided to counsel so you would have an opportunity to look at it?
A. Apparently. It has an exhibit number on it.
Q. And you did look at documents that we gave notice that we were going to be using with you during your testimony; correct?
A. I was able to look at some of them, yes, sir.
Q. Okay. Were you able to look at this one?
A. I don't recall that I did.
Q. Now can you go to the second page, and do you see there there's a "STATUS" section?
A. Yes, sir, there is.
Q. It refers to Senate File 38, SF 38?
A. Yes, sir.
Q. And do you see that there's language in that bill which was proposing increasing excise taxes, earmarking those revenues for the state medical assistance fund, that language contained in the legislation referred to tobacco-related illnesses?
A. That's what it says.
Q. And do you see down below legislative program action notes with regard to what the industry was attempting to do with that bill?
A. Yes, sir, that's what it says.
Q. And it said "Efforts are continuing to kill this bill in committee;" is that correct?
A. That's what it says.
Q. And down below that, the legislative support/action notes, does it say the "Tobacco Institute legislative counsels have been working closely with one of two wholesaler organizations on this particular bill. A more subtle and less bombastic approach has been utilized in order to prevent an overemphasis by Twin Cities media. No further support group assistance is requested at this time." Do you see that?
A. I see that.
Q. And The Tobacco Institute, as part of its strategy to kill legislation relating to smoking and health, utilizes other organizations and pays them money for it; doesn't it?
A. We certainly have allies in legislative confrontations, yes, sir.
Q. And you pay them money to be your ally; don't you?
A. I think that's an improper characterization.
Q. Well, does money exchange --
Do you give them funds? I don't want to mischaracterize it for you, Mr. Merryman. Does money flow from the tobacco industry to these allies?
A. Well you're really beyond my area of expertise as someone who's involved in -- as a spokesman for the industry. That is an administrative area that I don't have any information on.
Q. Are you saying that as you sit here on the witness stand under oath, you don't know if money flows from the industry to your allies to help defeat legislation? Are you saying that?
A. I don't have personal knowledge of that kind of thing. I'm not involved in the state activities division, I'm not an administrator of The Tobacco Institute. I don't know what may or may not occur with respect to that kind of thing that you're referring to.
Q. Well you've heard that during your 21 career -- 21-year career at The Tobacco Institute; haven't you?
A. Oh, this isn't the first time I've heard somebody say something like that.
Q. And you've heard it from people in The Tobacco Institute, that money is paid to your allies to help defeat legislation; haven't you?
A. I don't recall.
Q. You don't deny that; do you?
A. If I don't recall it, I can't deny it.
Q. Now can you turn to the page which is numbered five at the top. Now, do you see the bill referenced, Senate File 776, House File 810?
A. Yes, I do.
Q. And in the Senate it was being sponsored by Senator Nelson from Austin, a member of the DFL party?
A. Yes, sir.
Q. And in the House it was being sponsored by Representative Quist, a member of the Republican Party, and he's from St. Peter?
A. That's what it says.
Q. Okay. I want to read this and ask you some questions about it. "This is Governor Perpich's priority legislation. Bill would increase cigarette tax by 15 cents per pack in order to segregate revenues for youth education, community 'stop smoking' programs, work place initiatives, sampling ban, advertising bans," and then "sewer construction, mosquito control" -- we have a lot of those here -- "and general mischief." Do you see that?
A. Yes, I see that.
Q. Now I -- I don't want to imply that the general mischief relates to the tobacco industry. I'm not saying that. Do you understand that?
A. I'm sure you wouldn't.
Q. Now with regard to the youth education, community stop smoking programs, work place initiatives, sampling bans, advertising bans, The Tobacco Institute worked to defeat that measure; didn't it?
A. The document speaks for itself in that regard.
Q. It says right there in the next paragraph, "It is at the Finance Committee level that we hope to defeat this measure." Is that right?
A. That's what it says.
Q. Now when you were putting out these small sums of money over eleven years for youth prevention, did you tell the parents that you were at the same time working to defeat legislation that would prevent kids from smoking? Did you tell them that?
A. We didn't tell people what our legislative agenda was. Certainly if someone had asked what our position on this bill was, I'm sure we would have told them.
Q. Sir, would you agree with me that actions speak louder than words?
A. As a general proposition I'd say so, yes, sir.
Q. So you didn't tell people that your actions were to defeat youth prevention programs, but your words were that you had a policy that you didn't want kids to smoke; didn't you?
A. Certainly our policy with respect to kids and smoking extended to supporting legislation which we thought would do just that, sir.
Q. You didn't tell them what I just asked you; did you?
A. We didn't tell anyone that I recall that we opposed this particular piece of legislation. However, if someone had asked, we'd have been happy to tell them.
Q. Now in this memo -- strike that.
If they would have asked, you would have been happy to tell them; is that right?
A. If a reporter asks for our position on a piece of legislation, we'd certainly tell him.
Q. So that if a reporter or if a federal regulatory agency or if anyone, a lawyer asks for your internal documents which show what the companies really knew and when they knew it, you'd be happy to give it to them; is that right?
A. I can't provide anyone with company internal documents, sir.
Q. And of course the companies don't provide them; do they?
A. That's up to them, sir. I don't know what they do.
Q. Now you remember --
You've heard of Winston Churchill; haven't you?
A. Yes, sir.
Q. You remember during World War II he said, "We're going to fight them on the beaches, we're going to fight them in the hills?" You remember that?
A. Yes, sir.
Q. That's how this campaign of The Tobacco Institute was characterized by your own Tobacco Institute; wasn't it?
A. I don't recall that, sir.
Q. Well they used words to that effect; isn't that right?
A. It's possible. I don't remember specifically.
Q. Why don't you turn to the very last page, page nine, "CONCLUSION." I'll just read it to you.
"Every possible legislative, political, social and theoretical angle is being utilized in our efforts to get out of this session unscathed. Since Minnesota has seen fit to designate itself, as Surgeon General Koop stated, quote, a model for the country, end of quote, with regard to anti-smoking legislation, our only choice in this matter is a complete victory. Anything less could be used against us in other states. We will employ all means to secure that victory."
Your words, not mine; correct, sir?
A. Not my words, no, sir.
Q. The Tobacco Institute's words, not mine; correct?
A. An employee of the Institute in his report, yes, sir.
Q. Did you ever see any document which refuted Mr. Brozek and said "That's not our policy. That's not what we do?" Did you ever see any such document?
A. No, sir.
Q. Did the lawyers ever show you any such document?
A. No, not that I recall.
Q. And sir, you yourself are aware with regard to the health risks of smoking and what smoking causes that 91 percent of scientists who have done work for the industry believe that most lung cancer deaths are caused by smoking; isn't that right?
A. I'm aware of a survey that was reported on that subject, but I don't remember the specifics of it.
Q. And when you were faced with that, you yourself, you stated "The Tobacco Institute has long said that smoking is a risk factor associated with a variety of diseases. We don't know whether smoking causes disease." Isn't that what you said?
A. I believe I was quoted as having said that in a newspaper article.
Q. And in newspaper articles that ran right here in Minnesota; isn't that right?
A. I'm sorry, I don't know where it ran. But if -- if it was nationally distributed, it may have.
Q. That was your intent, to have it nationally distributed and run here; isn't that right?
A. Well I responded to a reporter's inquiry. My only intent was to provide him with answers to his questions, if I could.
Q. Your intent was to provide him with the stated policy of the Institute; isn't that right?
A. Certainly, in answer to his questions.
Q. And you were doing that in 1991. You didn't stop doing that in the '80s or '70s; did you?
A. In response to inquiries from reporters, we'll try to answer their questions, yes, sir.
Q. Can you turn to Exhibit 18799, which is a Minneapolis Star Tribune article of June 26th, 1991.
A. Which volume is that, Mr. Ciresi?
Q. It would be volume two, I believe.
A. Is it?
Q. It is volume two, sir.
A. All right.
All right, yes, sir.
Q. Do you have that?
A. Yes, I do.
Q. It's an article that was in the Minneapolis Tribune; correct?
A. Yes, sir.
Q. You're quoted in it?
A. I am.
MR. CIRESI: Your Honor, we'd offer Exhibit 18799.
MR. BLEAKLEY: Your Honor, I have no objection to the introduction of the quote of Mr. Merryman. The rest of this document is hearsay, however, so I do object to its receipt.
THE COURT: Court will receive 18799.
BY MR. CIRESI:
Q. First of all, the title is "Scientists Funded By Tobacco Say Smoking Is Harmful." Correct?
A. That's what it says, yes, sir.
Q. And you recall you had to respond to this on behalf of the tobacco industry; isn't that right?
A. I responded to a reporter's inquiry about this issue, yes, sir.
Q. And you delivered your response to your media contact people too; didn't you?
A. I don't know what you mean, sir.
Q. Well you've got a news release distribution list for The Tobacco Institute. It's got just all kinds of contacts throughout the country. Don't you?
A. Yes, sir.
Q. You use that when you release statements; don't you?
A. If we have a prepared news release, we sometimes will use that distribution list you have in hand.
Q. And --
A. We may use a portion of it, we may use only a few.
Q. And you used this distribution list for this statement; didn't you, sir?
A. No, sir. It's my recollection that I responded to an inquiry from a report from the Associated Press, and I don't recall that we made a distribution of a -- of a written statement.
Q. Do you deny that you made a distribution of a written statement concerning this subject matter in 1991?
A. I don't recall it.
Q. You just don't remember.
A. This -- this, obviously, is my response to the Associated Press reporter's telephone call.
Q. Okay.
A. I don't recall any additional distribution we made.
Q. And what you were responding to was a survey that had been conducted by scientists who got research money from The Tobacco Institute; is that right?
A. No, sir, that's not true at all.
Q. You weren't. Well you -- you are aware of the survey that was published in the American Journal of Public Health; correct?
A. I'm aware of that survey, yes, sir.
Q. And in that survey, 94 percent of those scientists that were funded by the industry agreed that secondhand smoke was harmful to non-smokers; correct?
A. That is correct.
Q. And 91 percent agreed that most lung cancer deaths are caused by smoking; is that right?
A. That's what it says.
Q. Would you agree the 91 percent is a consensus?
MR. BLEAKLEY: That's argumentative, Your Honor. Objection.
THE COURT: No, you may answer that.
A. May represent a consensus of the people that were surveyed.
Q. Do you consider it a consensus?
A. Of those who were asked, it seems like it would be.
Q. Okay. And those were people that were funded by tobacco money to do some research; isn't that right?
A. As I recall, the funding came from The Council for Tobacco Research. My response was to a reporter's question on the smoking-and-health issue, not the survey or funding sources themselves.
Q. Well The Council for Tobacco Research, which was formerly known as TIRC, was funded by the tobacco industry; was it not?
A. It's tobacco --
It's funded by the tobacco industry. It is entirely separate from The Tobacco Institute, however.
Q. I didn't ask you if it was separate from The Tobacco Institute. It's funded by the tobacco industry; correct?
A. It's funded by the companies.
I don't respond to things on behalf of The Council for Tobacco Research, however.
Q. And the Tobacco -- TIRC, which became the CTR, was one of the entities that was visited by the three Englishmen back in 1958; isn't that right?
A. I believe that was on the itinerary.
Q. In fact they had three separate meetings with the TIRC; didn't they?
A. That I don't recall, sir.
Q. Now in this article -- and you said this in 1991 -- "'The Tobacco Institute has long said that smoking is a risk factor associated with a variety of diseases,' said Walker Merryman, vice-president of the group that represents the tobacco industry. 'However,' he said, 'we don't know whether smoking causes disease."' Is that right?
A. Yes, sir.
Q. And you've been saying that in the paper which has been published here in Minnesota ever since you have been a representative of The Tobacco Institute; haven't you?
A. I do respond to reporters' inquiries on the subject, yes, sir, where appropriate.
Q. Now when you met with Mr. Skubic at the Minnesota Department of Health, did you tell him that you were -- not you personally, but that the industry was attempting to kill the bills that were in front of the legislature? Did you tell him that?
A. No, sir. Mr. Skubic, I'm sure, was aware of the fact that we had contract lobbyists in Minnesota.
Q. Did you tell him that smoking was addictive?
A. No, sir.
Q. Did you tell him that the defendants were manipulating nicotine?
A. No, sir.
Q. Did you tell him that cigarette smoking causes disease and death?
A. No, sir, that wasn't the purpose of my visit.
Q. The purpose of your visit was to impart knowledge that the companies had regarding smoking and health; wasn't it?
A. The purpose of my visit was to acquaint him with a project that we had underway having to do with discouraging youth smoking.
Q. Well, part of discouraging youth smoking would be to advise them, fully inform them or their parents of what the companies know about the risks of smoking; wouldn't you agree?
A. No, I don't believe so, sir.
Q. I didn't think you would.
MR. CIRESI: Thank you, sir. I have no further questions.
THE COURT: We'll recess for lunch, reconvene at 1:35.
THE CLERK: Court stands in recess to reconvene at 1:35.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
THE COURT: Counsel.
MR. HAMLIN: Good afternoon, Your Honor.
THE COURT: Good afternoon.
MR. HAMLIN: Good afternoon.
(Collective "Good afternoon.")
THE CLERK: Mr. Samet, please rise.
(Witness sworn.)
THE CLERK: Please state your name for the record.
THE WITNESS: My name is Jonathan Michael Samet.
THE CLERK: Thank you. Please have a seat.
MR. HAMLIN: At this time, Your Honor, plaintiffs call Dr. Jonathan Michael Samet.
JONATHAN M. SAMET called as a witness, being first duly sworn, was examined and testified as follows:
BY MR. HAMLIN:
Q. Good afternoon, Mr. Samet.
A. Good afternoon, Mr. Hamlin.
Q. My name is Tom Hamlin. I'm one of the attorneys for the state of Minnesota and Blue Cross Blue Shield of Minnesota.
Dr. Samet, what is your current position?
A. I'm currently professor and chair of the Department of Epidemiology of the Johns Hopkins University School of Hygiene and Public Health.
Q. And do you also have an appointment at the Oncology Center at the Department of Medicine at Johns Hopkins?
A. That's right. I also hold appointments in the Oncology Center or the Cancer Center and the Department of Medicine.
Q. Doctor, you are a physician and an epidemiologist; is that correct?
A. That's correct.
Q. How long have you been at Johns Hopkins?
A. Since August -- well August of 1994.
Q. Doctor, can you briefly tell the ladies and gentlemen of the jury and the court what epidemiology is?
A. Epidemiology is a science to study methods that we use to identify the causes of disease in populations, to know what affects people's health. It's studies that are done directly involving people.
Q. Doctor, could you tell us a little bit about the Johns Hopkins School of Public Health.
A. The School of Public Health is actually the oldest school of public health in the world, and at the moment the world's largest school of public health.
Q. Where is it located?
A. In Baltimore.
Q. Now as chair, do you have the following duties: Do you teach?
A. Yes.
Q. And what subjects do you teach?
A. I teach a variety of subjects in epidemiology, some on the methods of the field itself, introduction to epidemiology, more advanced methods. I also give classes on cancer epidemiology, environmental effects on epidemiology and public policy, clinical research and other -- other matters.
Q. And you also have the administrative responsibility of running the department; is that right?
A. That's correct.
Q. How many faculty members do you supervise?
A. I have over 40 faculty in the department at present.
Q. Could you tell us something about the research activities in the department.
A. We have a large department and very diverse research activities going on really throughout the world. We have major programs on infectious diseases in Africa, Thailand, Baltimore, studying, among other things aids, we have programs on cardiovascular disease, on respiratory diseases, on sleep and many other problems, all this going on through the department.
Q. And you also do your own research and writing; is that right, doctor?
A. That's correct.
Q. I'd like to go over your educational background. You received your B.S. in physics and chemistry at Harvard in 1966; is that right?
A. That's correct. Actually a bachelor of arts.
Q. And you received your medical degree from the University of Rochester in 1970; is that right?
A. That's correct.
Q. And you received a master's of science in epidemiology from the Harvard School of Public Health in 1977; is that right?
A. That's -- that's correct.
Q. You are licensed to practice as a physician in Maryland; is that right?
A. That's correct.
Q. And you are also licensed to practice in New Mexico; correct?
A. That's correct.
Q. Following graduation from medical school, you took an internship at the University of Kentucky in internal medicine from 1970 to 1971; is that right?
A. That's correct.
Q. And in that internship, did you have extensive experience in treating patients with lung cancer?
A. Yes, I did.
Q. And did you also treat people with chronic obstructive pulmonary disease?
A. I took care of many patients with that disorder.
Q. From 1971 to 1973 you were in the United States Army; is that right?
A. That's correct.
Q. You were a physician in the Army?
A. Correct.
Q. And you were stationed in Panama?
A. Yes.
Q. And did you practice as an anesthesiologist?
A. That's right, I was an anesthesiologist for a 450-bed hospital.
Q. And from 1973 to 1975 did you complete your internal medicine residency?
A. Yes, I did, at the University of New Mexico.
Q. All right. And were you responsible for patient care at that time?
A. That's what a resident does. I was very busy.
Q. Okay. And did you treat patients with a variety of diseases?
A. Yes.
Q. And did those diseases include lung cancer?
A. Yes.
Q. And chronic obstructive pulmonary disease?
A. Yes.
Q. Heart disease?
A. Yes.
Q. Other kinds of cancer?
A. Yes.
Q. And other types of diseases; right?
A. Yes.
Q. From 1975 to 1978, did you have a fellowship in Boston?
A. Yes. I was at Harvard Medical School.
Q. And at that -- That's when you obtained your master's in epidemiology; is that right?
A. Correct.
Q. And did you also develop a subspecialty in pulmonary disease?
A. Yes.
Q. And did you do work at the Peter Bent Brigham Hospital?
A. Yes.
Q. You also practiced at Massachusetts General; is that right?
A. That was another site of my clinical fellowship, yes.
Q. You also practiced at Boston City Hospital; right?
A. Correct.
Q. And again, you were treating patients; right?
A. Correct.
Q. And some of those patients had lung cancer; correct?
A. Yes.
Q. And COPD?
A. Yes.
Q. Chronic obstructive pulmonary disease.
And other kinds of cancers; correct?
A. Yes.
Q. And other diseases.
A. Correct.
Q. In 1975 you passed your internal medicine board exam?
A. That is correct.
Q. And you passed your pulmonary disease board exam in 1980, right?
A. Yes.
Q. Now let me ask you about one of your teachers at the Harvard School of Public Health. You studied under Dr. Frank Speizer; is that right?
A. That's right. He was my mentor for my fellowship.
Q. All right. Now Dr. Speizer trained with Richard Doll; is that right?
A. Yes.
Q. Who is Richard Doll?
A. Richard Doll was one of the field's preeminent empidemiologists, a man now in his mid-80s who did much of the pioneering work on cigarette smoking and other diseases from the 1940s extending into the 1950s to the present.
Q. And we're going to be talking about Dr. Doll's work later in our testimony.
A. We'll be touching on some of his studies.
Q. And did Dr. Speizer also start the nurses health study?
A. Yes. He remains the principal investigator for this study.
Q. And is that a well-known and well-regarded prospective study of the disease of smoking?
A. It's a very important study, not only for smoking but for other diseases.
Q. Did Dr. Speizer win the Ochsner Award for research?
A. Dr. Speizer won the Ochsner Award for research contributions to -- to smoking and health.
Q. Is that a prestigious award?
A. Yes.
Q. Now did you do original research with Dr. Speizer?
A. Yes, during my years in Boston.
Q. And did that original research include research regarding smoking and disease?
A. Yes.
Q. Now I want to talk about your experience as a teacher and as a clinician.
In 1978 you took an appointment at the University of New Mexico School of Medicine in the Department of Medicine; is that right?
A. Yes.
Q. And you had responsibilities for patient care, teaching, and research; correct?
A. Yes. Correct.
Q. So you --
Again, you treated patients; right?
A. That's correct. That was part of my duties in the Department of Medicine.
Q. Some of those patients had lung cancer; correct?
A. Yes.
Q. Some had chronic obstructive pulmonary disease; right?
A. Yes.
Q. And some had other kinds of cancers; right?
A. Correct.
Q. And other diseases; right?
A. Yes.
Q. Did you also work in a pulmonary clinic?
A. Yes, I had a weekly pulmonary clinic.
Q. Okay. And did you do in-hospital pulmonary care?
A. Yes. I provided consultation and in-hospital pulmonary care.
Q. Did you also cover a general medicine ward of the hospital?
A. Periodically one of my duties was to supervise the team providing general medical care.
Q. In 1986 did you become chief of pulmonary medicine?
A. Yes.
Q. And later did that department become known as the Pulmonary and Critical Care Medicine Department?
A. That's right.
Q. And were you administratively responsible for a large clinical program in pulmonary and clinical care medicine from 1986 through 1994?
A. Yes, I was.
Q. And in 1994 you left for Johns Hopkins; right?
A. Correct.
Q. Now doctor, what other kinds of clinical experience have you had other than what we have already covered?
A. Over my years of being a physician I've had some other experiences. As a resident at the University of New Mexico I took care of patients discharged from the University Hospital to nursing homes. Also over the years, particularly early in my career, I had a variety of experiences being in charge of providing emergency care in various settings.
Q. Doctor, I have your curriculum vitae here. I want to ask you a few questions about it.
Now it says that you were the author and editor of nine books and monographs, including a book entitled "The Epidemiology Of Lung Cancer" published in 1994; is that correct?
A. That's correct.
Q. You were also the author of 92 chapters; right?
A. Yes, I am.
Q. What does that mean, doctor?
A. Okay. A chapter is like a contribution to a textbook or a collection of papers on some special subject, so respiratory textbooks, general medicine textbooks, and others, for example.
Q. You were also the author of 173 peer-reviewed research articles; is that correct, doctor?
A. That's correct.
Q. Can you tell the ladies and gentlemen of the jury and the court what a peer-reviewed article is?
A. Okay. These are articles of original research where data has been gathered, collected, analyzed and written into a paper for publication in what we call the peer-reviewed literature, meaning that it's been sent to a journal, reviewers have decided that this work is acceptable for publication, it's advancing, providing new knowledge. And that's what we mean by "peer review."
Q. You were also the author of and editor of 40 proceedings of meetings, is that correct, doctor?
A. That's correct.
Q. And you've also authored 74 case reports and editorials and other publications; right?
A. That's correct.
Q. And you have had 72 abstracts accepted for presentation; is that correct, doctor?
A. That's approximately correct, yes.
Q. Let me ask you about a couple of your peer-reviewed journal articles. Specifically there's a publication entitled "Respiratory Disease in a New Mexico Population Sample of Hispanic and Non-Hispanic Whites" published in 1982. Could you tell us a little bit about that study?
A. This is a study that I did shortly after going to New Mexico that was funded by some funds from the university and by the American Lung Association. It was a survey of approximately 1700 residents of Albuquerque, New Mexico, half Hispanic and half non-Hispanic, gaining information on smoking by this group, the respiratory symptoms that -- that they had, and also the respiratory diseases that they had been diagnosed with.
Q. Next publication I want to ask you about, doctor, is one entitled "Cigarette Smoking and Lung Cancer in Hispanic Whites and Other Whites in New Mexico" published in 1985. Can you tell us about that particular report.
A. This was a study funded by the National Cancer Institute, a so-called case-control study. It was directed at the risks of smoking in the state. The intent was to try and understand why we had been observing somewhat lower rates of lung cancer in Hispanic residents of the state compared with non-Hispanic residents.
Q. And did that study generate a number of publications exploring smoking and lung cancer?
A. Yes, it did.
Q. Next publication I want to ask you about is entitled "Respiratory Diseases and Cigarette Smoking in a Hispanic Population in New Mexico" published in 1988. Would you tell us about that report.
A. This was another study in the population in New Mexico funded by the National Heart, Lung and Blood Institute, which is one of the National Institutes of Health. Here, this was a door-to-door study involving approximately 700 households, over 2,000 persons who we talked to about smoking and other risk factors for disease. We measured lung function and so forth. And this paper provides a description of the findings.
Q. Did you look at biomarkers in that study, doctor?
A. Yes, we did. We collected saliva for analysis of cotinine, a nicotine metabolite.
Q. What are biomarkers?
A. Biomarkers refer to compounds that we can measure in a body fluid, a tissue, air breathed out by people, and so forth.
Q. Next publication I want to ask you about is entitled "Lung Cancer Mortality and Exposure to Radon Progeny in a Cohort of New Mexico Underground Uranium Miners" published in 1991. Would you tell us about that study.
A. Well when I returned to New Mexico in 1978, the state was the site of the free world's largest uranium mining industry. There was a great deal of concern about the risks of radiation for the minors, so we undertook a large epidemiological study that's still going on, looking at the risks of radon. A component of that study was to try and understand how smoking and radon act together to cause lung cancer.
Q. And what were the conclusions of the study, doctor?
A. Well one of the -- one of the findings of the study, unfortunately for the miners, was that in fact there were risks of radon with regard to lung cancer. We also found evidence of synergism in the combined effect of smoking and radon.
Q. Doctor, have you also been involved with national scientific committees on the subject of radon?
A. Yes.
Q. And are you involved with the National Research Council?
A. Yes.
Q. Now what -- what is the National Research Council, doctor?
A. The National Research Council is essentially the operating arm of the National Academy of Sciences, which was commissioned by Congress to provide guidance to the Congress on matters of science and policy.
Q. And are you a member of the committee known as The Biological Effects of Ionizing Radiation?
A. I've been a member of several such committees and currently chair the sixth such committee.
Q. The next publication I want to ask you about is entitled "Determinants of Survival in Older Cancer Patients" published in 1996. Could you tell us about that study.
A. Yeah. This study was one of a series --
This paper was one of a series of papers based on a National Cancer Institute-funded study on determinants of the outcome of cancer in older persons. We had enrolled a group of 800 persons newly diagnosed with cancer who were at least 65 years of age. We were initially interested in factors that influenced delay in both the patient's seeking medical care and then in making the diagnosis. The paper mentioned describes what impacted their survival over the long run.
Q. Did that study also generate a number of publications?
A. Yes, it did.
Q. Last publication I want to ask you about is called the "Sleep/Heart Health Study Design Rationale and Methods" published in 1997. Could you tell us about that study.
A. Yes. Since early 1995 I've been chairing for the National Institutes of Health a multi-centered study on sleep and sleep disordered breathing, the problem of breathing pauses during sleep and risk for cardiovascular disease. This is a multi-site study involving about 6,000 persons, including about a thousand from Minnesota, who are now going to be followed for their risks of heart disease in relationship to the sleep that we've just finished measuring.
Q. And as part of this study, did you collect -- are you collecting information on smoking?
A. Yes.
Q. Doctor, you've also done work for the Surgeon General of the United States regarding smoking and health.
A. That's correct.
Q. Correct?
You wrote a chapter for the 1984 report; is that right?
A. That's correct.
Q. The 1984 report concerned chronic lung disease; is that correct?
A. Yes.
Q. And you wrote a piece on smoking, lung function and development of chronic obstructive pulmonary disease; is that correct?
A. That's right. That was my contribution.
Q. And you also wrote a chapter in the 1984 report; is that right? I'm sorry, the 1985 report.
A. Yes, I did.
Q. Can you tell us the subject matter of that submission.
A. That submission was essentially on smoking and lung disease in the work place.
Q. And were you also consulting scientific editor for the 1985 report?
A. Yes, I was.
Q. Did you submit a paper for the 1986 report?
A. Yes, I was one of the authors of the 1986 report.
Q. And were you also consulting scientific editor of that report?
A. Yes, I was.
Q. Did you also make a contribution to the 1989 report?
A. Yes. That was the 25th anniversary report, and I contributed to that.
Q. Could you tell us the subject matter of the 1989 report?
A. Well the 19 -- the 1989 report was a review of the information gained over 25 years since the 1964 Surgeon General's report.
Q. And what was the subject matter of your contribution?
A. I contributed to the chapter on the health consequences of smoking.
Q. Did you also make contribution to the 1999 -- or strike that -- the 1990 --
A. Yes, I did.
A. -- Surgeon General's report?
A. Yes.
Q. And could you tell us about that contribution?
A. Well I authored and contributed to several of the chapters in that report.
Q. What was the subject matter of that report?
A. That report was on the health benefits of smoking cessation.
Q. And were you the senior scientific editor of that report?
A. Yes, I was.
Q. Did you also make a contribution to the 1994 Surgeon General's report?
A. Yes, I did.
Q. What contribution did you make?
A. That report was on children, and I authored the chapter on the health consequences of smoking for children.
Q. And have you also written for one of the Surgeon General's reports currently in development?
A. Yes, I have.
Q. And what is the subject matter of that report going to be?
A. Essentially smoking in minority populations.
Q. Doctor, do you also serve as a reviewer of the Surgeon General's reports?
A. Yes. For a number of years I have both reviewed the outlines of the reports as they've been developed, chapters, selected chapters from the reports, and then the final reports themselves.
Q. And in 1990 did you receive the Surgeon General's Medallion for contributions to Surgeon General's reports?
A. Yes, I did.
Q. Doctor, do you also review or work as a reviewer of scientific literature?
A. Very frequently.
Q. Can you tell us what a reviewer of scientific literature does?
A. A reviewer is sent manuscripts, people's work, describing their data and their interpretation of it. The reviewer assesses whether this contribution -- whether this work will make a contribution, whether it represents the state of the science, has used the state of the science, and whether the authors have properly interpreted and presented their data, their findings.
Q. Who have you done -- or what publications have you done reviews for?
A. Over the years, many, many journals such as the Journal of the American Medical Association, New England Journal of Medicine, and the Journal of the National Cancer Institute, Cancer, and many journals in the area of cancer and respiratory diseases.
Q. Doctor, how many scientific articles have you reviewed in your career?
A. Probably too many. There are many.
Q. Are you also involved with smoking-and-health issues in China?
A. Yes, I am.
Q. Could you tell us about that.
A. Yes. For several years I have been working with the Chinese government through the Chinese Academy of Preventive Medicine and the Chinese Association on Smoking and Health, providing collaboration and assistance with regard to their recently-completed national study of smoking, and now follow-up surveys related to smoking among Chinese children, trying to understand its origin, and also among urban and rural populations in China.
Q. In connection with your work on smoking and health, are you also involved with the International Agency for Research on Cancer?
A. I was a member of the 1985 working group on smoking that resulted in the 1986 International Agency for Research on Cancer monograph on smoking.
Q. Are you also involved with the National Cancer Institute?
A. Yes, I'm currently on the Board of Scientific Counselors of the National Cancer Institute.
Q. And have you contributed to the National Cancer Institute's Smoking and Control -- strike that -- Smoking and Tobacco Control monograph series?
A. Yes.
Q. What is that, doctor?
A. This is a series of volumes published by the National Cancer Institute that have addressed specific issues related to smoking and tobacco control.
Q. And were you involved with monograph one?
A. Yes, I was one of the editors.
Q. And was the subject of monograph one tobacco control?
A. Yes.
Q. Was that published in 1990?
A. Yes.
Q. Were you also involved with monograph seven?
A. Yes. I authored it. Yes.
Q. Did you contribute an article on the changing cigarette to monograph seven?
A. Yes, I did.
Q. And was that article published in 1996?
A. Yes.
Q. We'll get to that article later in the testimony; is that right?
A. Yes.
Q. Did --
Were you also a contributor to monograph eight of the National Cancer Institute's monograph series?
A. Yes, I was one of the editors.
Q. And what -- what was the subject matter of monograph eight?
A. This monograph addressed the risks of smoking and mortality over time.
Q. You're also on the Board of Scientific Counselors at the National Cancer Institute.
A. Yes.
Q. What does that board do?
A. This board provides peer review for the National Cancer Institute's internal research programs.
Q. Let me talk for a moment about your professional memberships, doctor. Are you a member of the American Thoracic Society?
A. Yes, for many years.
Q. Are you a member of the Society for Epidemiological Research?
A. Yes.
Q. And were you president of that society in 1990?
A. Yes.
Q. Are you also a member of the National Academy of Sciences?
A. Correct.
Q. How long have you been a member, doctor?
A. I entered the Institute of Medicine in 1997.
Q. Can you tell us what the Institute of Medicine is?
A. Yes. The Institute of Medicine comprises the health-related arm of the National Academy of Sciences. There are approximately 500 individuals in the Institute of Medicine who have been selected as leaders in their field who can provide guidance to the National Academy on matters of health-related policy in very broad ways.
Q. Doctor, are you also chair of the Committee on Research Priorities for Airborne Particulate Air Pollution?
A. Yes.
Q. What do they do?
A. This is a new committee of the National Research Council that has been asked by the Congress to set a research agenda and essentially assign priorities for spending approximately 50 million dollars of research money annually related to air pollution with particles.
Q. And are you also a member of the Environmental Protection Agency's Science Advisory Board?
A. At the moment I'm a consultant. In the past I've been a member of various committees.
Q. And are you also an advisor to the American Lung Association?
A. Yes.
Q. You're also editor of several scientific publications, including the American Review of Respiratory Disease; is that correct?
A. In the past I've been editor of that, yes.
Q. Okay. And have you also been editor of the American Journal of Epidemiology?
A. Yes. I am at present.
Q. And have you been an editor of the journal entitled Epidemiological Reviews?
A. Yes.
Q. And are you a member of several other editorial boards?
A. Yes.
Q. For example, the American Journal of Medicine?
A. Yes.
Q. And you're also associate editor of a journal called Tobacco Control?
A. Correct.
Q. Okay. Doctor, you've been retained as an expert in this matter for the state of Minnesota and Blue Cross; is that right?
A. That's correct.
Q. And you were retained in 1995?
A. Yes.
Q. And this is the first time that you've testified in court as an expert witness; is that right?
A. That's correct.
Q. Now in preparation for your testimony today, did you do a review of the scientific literature on the science of smoking and health?
A. Yes, I conducted an extensive review on this topic.
Q. Yes. Can you tell us briefly what that review consisted of?
A. Yes. Well of course I'd been reading on this topic for many years, but for developing this testimony today an extensive database of the epidemiologic literature was prepared.
Q. And did you have assistance?
A. Yes, I did. I was assisted by an epidemiologist, Tracey Sides, in preparing this database.
Q. And can you tell us briefly the nature of this database?
A. Yes. At this point the database includes over 900 studies that have been reviewed and their results entered into a computer file so that they can be accessed and examined and displayed.
Q. And did you review these articles yourself, doctor?
A. Yes, I'm familiar with these articles.
Q. Now during the course of your testimony, are you prepared to testify about the following matters: Whether smoking causes disease?
A. Yes.
Q. And whether lower tar and lower nicotine cigarettes have reduced the health risks of smoking?
A. Yes.
Q. Doctor, what I'd like to do now is have you come down from the witness stand and, if you would, talk a bit about the anatomy of the human body, and specifically some of the organs that you plan to talk about in your testimony today and perhaps tomorrow.
A. Okay.
Q. First we have to put this model on a pedestal here.
MR. GARNICK: Your Honor, may I go over there and watch?
Q. Now doctor, I want to direct your attention to Trial Exhibit 30110, which is a model of the anatomy of the human body, and if you could tell the ladies and gentlemen of the jury and court about some of the organs in the body.
A. Okay. Well beginning --
Q. Beginning with the air pathway and the pathway for the lung.
A. Right. Let me start from the top. Here what we can see, of course, is the nose and the mouth, leading to the throat, to the larynx, the voice box, where the air passes down.
Q. Doctor, perhaps you could go --
A. Rotate it a little more?
Q. No, if you could come to this side so the judge can see as well.
A. In any case, starting over: The nose, of course, where most of the breathing takes place, some breathing goes on through the mouth depending on the level of exercise, the air passes down the back of the throat, through the larynx or the voice box and into the trachea, which is the tube connecting the voice box to the -- to the lung.
Q. And now could you point out the lungs to the jury, please.
A. Of course we have two lungs, of course, the left lung and the right lung, and sitting between lungs is the heart, as you can see here.
Q. And could you point out the heart and the coronary artery. Perhaps you are going to have to remove one of those lungs.
A. I'm taking out one of the lungs, I hope.
Q. Well maybe we won't remove one of the lungs.
There we go.
A. I'm just going to remove the -- the heart, and what you can see with the heart is that the heart itself has its own blood vessels, the blood vessels -- the heart is a muscle, it's a pump, and the blood vessels that take the blood into the heart are called the coronary arteries.
Q. Can we talk about the organs in the abdominal cavity now, doctor.
A. Okay. So just looking front-on, we can see this large brown structure here is the liver. Over here we see the stomach, which will connect behind the duodenum, which is how it leads on into the intestine. These would be the small intestines, this yellowish mass here, and then this larger structure here would be the large intestines, the colon.
Q. And are there other organs behind the stomach as well; for example, the kidney and the pancreas?
A. Yes, there are. And if I can successfully remove the small intestine and the liver, we can see of course there is a kidney on both sides, the right kidney and the left kidney, and then sitting behind the stomach there's also now the secretory organ, the pancreas, which makes digestive enzymes and also insulin.
We can see here, this is just the start of the intestines, the duodenum, which is the point where the stomach connects to the intestines.
Q. Thank you, doctor. You can return to the witness stand now.
Doctor, let's turn to the animations to continue the lesson in anatomy, and specifically Trial Exhibit 30255, if you could access that animation and show us how people breathe normally.
A. Here we go.
Q. Good.
A. Yeah. Here we're just looking at normal respiration with the lungs, of course, expanding and contracting. You can see the heart sitting between the lungs beating. And air, of course, would be entering and leaving. Air predominantly, actually, during resting breathing, comes in through the nose, and then of course goes out into the gas-exchanging portions of the lung.
Q. Could you turn to the next animation, which shows lung structure and function.
A. Okay. Here --
Q. Tell us what we see here, doctor.
A. Here again, we're now looking at the lungs again, beating -- moving slowly now in slow motion, the heart beating, the air being carried into the lungs, down the trachea, to this tissue of the lung itself.
Here we're seeing that tissue, which has been said to be sponge-like. The space is corresponding to the air sacks, the alveoli, where gas exchange takes place within the -- within the lung.
Now what we're going to see as this goes on is the structure in more detail, with here the bronchus or the tube