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DIRECT EXAMINATION - DR. RICHARD HURT STATE OF MINNESOTA
DISTRICT COURT COUNTY OF RAMSEY
SECOND JUDICIAL DISTRICT
File No. C1-94-8565
The State of Minnesota, by Hubert H. Humphrey, III, its attorney general, and Blue Cross and Blue Shield of Minnesota,
Plaintiffs,
vs.
Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, B.A.T. Industries P.L.C., Lorillard Tobacco Company, The American Tobacco Company, Liggett Group, Inc., The Council for Tobacco Research-U.S.A., Inc., and The Tobacco Institute, Inc.,
Defendants.
TRANSCRIPT OF PROCEEDINGS
VOLUME 8, PAGES 1363 - 1518
JANUARY 29, 1998
DIRECT EXAMINATION - DR. RICHARD HURT P R O C E E D I N G S.
THE CLERK: All rise. Ramsey County District Court is again in session, the Honorable Kenneth
J. Fitzpatrick now presiding.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
(Witness resume stand.)
THE COURT: Good morning.
(Collective "Good morning." )
THE COURT: I apologize for the delay. I was at the swearing in or our new Chief Justice, and as you might suspect, lawyers tend to get wordy, and that's why I was late.
Counsel.
MR. CIRESI: A shock, Your Honor.
(Laughter.)
THE WITNESS: I noticed.
BY MR. CIRESI:
Q. Doctor, when we recessed yesterday, we were addressing the issue of the defendants' research into nicotine technology, specifically as it related to the pH of nicotine. Do you recall that?
A. I do.
Q. Okay. Could you turn, please, to Exhibit 12505 in volume one of the exhibit books in front of you.
A. Okay.
Q. This is an RJR document dated September 8th, 1980 to Dr. Roy E. Morse, M-o-r-s-e, vice-president of R&D, regarding a memo on nicotine additive from the Horrigan, H-o-r-r-i-g-a-n, memo. Mr. Horrigan was at one point president of RJR. And it's from Alan Rodgman.
Have you reviewed this document?
A. I have.
Q. This is one of the documents you reviewed that forms the basis of your opinions?
A. It is.
Q. Is it representative of other documents that you reviewed on this issue?
A. It -- it does.
MR. CIRESI: Your Honor, we would offer Exhibit 12505.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive Exhibit 12505.
BY MR. CIRESI:
Q. The first page of this indicates it's from Alan Rodgman, dated September 8th, 1980, to Roy
E. Morse, the subject is "Clarification of 07/22/80 Memo on Nicotine Additive." And in the introductory paragraph Mr. Rodgman states that Roy Morse could forward this to Mr. Horrigan and Mr. Tompson, and if there's parts that are still not clear, he would get back to him.
I want to direct your attention then to the next page -- that's the cover memo -- and go to the memo itself.
Can we see the whole page, please?
If you would then direct your attention, sir, to the first paragraph, it states, "My July 22 memo assumed that the reader was familiar with PM's" -- which is Philip Morris -- and our past activities in developing nicotine technology. To put the information in that memo in perspective, the following background is presented:
"Development of nicotine technology involves the study of a host of factors, chief among which are
"a. 'Tar' delivery.
"b. Nicotine delivery.
"c. T/N ratio."
What does that refer to?
A. Tar-and-nicotine ratio.
Q. And "d. Nicotine satisfaction: This is dependent on puff count, puff volume, T/N ratio, total nicotine delivery, nicotine delivery per puff, plus 'free' nicotine per puff. This latter in turn is related to nicotine delivery per puff and smoke pH."
And then there's a footnote down below, "a Most, if not all, nicotine in tobacco is present at a salt, the reaction product of nicotine and an acid, generally referred to as 'bound' nicotine; most of the nicotine in smoke is present as a salt or 'bound' form and a small fraction is present as 'free' nicotine. The percentage 'free' nicotine depends on the smoke pH. 'Free' nicotine is absorbed more rapidly by the smoker than is 'bound' nicotine."
Now with respect to that subject matter, free nicotine and the rapid absorption, is that consistent with what you testified to here earlier in your understanding of the potential of free nicotine to get into the blood system faster?
A. It is. And -- and as I said, I think I said yesterday the addictive potential of an addictive drug relates to how fast it gets in, the concentrations that -- that reach the brain.
Q. Doctor, I'd like to direct your attention to the last paragraph on this page, and specifically the last phrase of the last sentence, which reads as follows: "...our approach has been primarily one of controlling the smoke parameters noted above by blend formulation and denicotinization rather than by addition or transposition of nicotine."
Did you investigate any part of that, how -- the blend formulations and denicotinization of RJR or any of the other defendants?
A. No. That's really outside the scope of what I did. I really was focused on nicotine, nicotine delivery, the addictive properties and the free base nicotine as it relates to addiction.
Q. Okay. Thank you.
Can you direct your attention now, doctor, to Exhibit 10095, which is in the same volume.
A. Okay.
Q. This is a Lorillard document dated February 8th, 1973 from
A. M. Ihrig, I-h-r-i-g, a senior research scientist, to Mr. C. L. Tucker, Jr., director of product development.
Have you reviewed this document in preparing to testify?
A. Yes, I have.
Q. Is it one of the documents you're relying on to form part of the basis of your opinion?
A. It is.
Q. Is the information therein consistent with and representative of other documents that you reviewed of the defendants during the course of your investigation?
A. It is.
MR. CIRESI: Your Honor, we would offer Exhibit 10095.
MR. BERNICK: No objection.
THE COURT: The court will receive 10095
BY MR. CIRESI:
Q. The first page is -- first along the right-hand column we've got "CONFIDENTIAL: MINNESOTA TOBACCO LITIGATION," and the title of this document is "pH of Particulate Phase."
What's particulate phase, doctor?
A. Well it's the tar aerosol mixture, basically water, tar and other -- other chemicals in the particulate phase. It's the phase you can actually see when you blow smoke outl, those are the particles.
Q. And the summary of the abstract says, "The pH of the particulate matter for wide variety of little cigars, cigarettes special tobaccos were determined. Some of the factors affecting smoke pH are discussed."
And this memorandum went to a number of individuals, one of whom is Dr. A. W. Spears, who is the current CEO of Lorillard.
Could you turn, then, to the second page of this document, and I'd like to direct your attention to the first paragraph. If we could first see the whole page, and then we'll pull up the first paragraph.
"The pH of tobacco smoke significantly affects the aroma and physiological properties of cigarettes and cigars. Generally speaking, cigarette smoke is acidic with a pH between 5 to 6.8 while cigar smoke is basic, having a pH in the range of 7.0 to 8.5. Nicotine in alkaline cigar smoke is more readily absorbed in the lungs and mouth because of the higher concentration of nicotine in the form -- in the free or unprotonated form."
Is "unprotonated" another term for free nicotine?
A. That's correct.
Q. And is this document consistent with documents of the defendants that you reviewed?
A. Yes, it is.
Q. And if you go into the next paragraph, the last sentence, there's a reference to, "Furthermore, the cigarette brands which are enjoying the largest sales increase generally have smoke pH's in the 6.5 to 7.0 range."
Did you find any other references to the sales related to the pH factor of cigarettes during your review of the defendants' memoranda and correspondence?
A. There were many such documents.
Q. If you could, now, doctor, I'd like you to go back to a document that we reviewed yesterday -- it's in the same volume, it's Exhibit 13155 -- and you'll recall that was a secret memorandum
BY MR. Teague -- or Dr. Teague of RJR.
A. Okay.
Q. Again, the title of that document is "IMPLICATIONS AND ACTIVITIES ARISING FROM THE CORRELATION OF SMOKE pH WITH NICOTINE IMPACT, OTHER SMOKE QUALITIES, AND CIGARETTE SALES."
Can you turn to the page which has Roman numeral II, "HISTORICAL DATA, TRENDS, AND BRAND COMPARISONS."
A. Okay.
Q. First of all, is there reported here by Dr. Teague that there was -- he was noticing a difference between the pH between Marlboro brands and his own brands?
A. That's correct.
Q. And is that in the first paragraph where he reports, "It soon became apparent that in recent years, corresponding to recent sales performance, the most significant difference between our brands," that's RJR, "and Philip Morris brands and Kool has been in the area of smoke pH?"
A. That's correct. That's what it says.
Q. And in this memoranda, in that section Roman numeral II, does Dr. Teague report that from RJR's standpoint all evidence indicates that the relatively high smoke pH shown by Marlboro and other Philip Morris brands and Kool is deliberate and controlled?
A. That's what it says.
Q. And that's at the -- I guess it's about the second-to-the-last paragraph; is that correct?
A. That's right.
Q. Second-to-the-last sentence.
A. Second-to-the-last sentence, right.
Q. And can you turn, then, to the next page -- we saw a part of that yesterday, -- under Roman numeral III, "SMOKE pH AND 'FREE' NICOTINE." And does Dr. Teague report in that paragraph the smoke pH of various brands, including Marlboro and Kool and Winston and Salem?
A. That's correct.
Q. I'd like to read that for a minute and ask you a couple questions. "Marlboro and Kool deliver about the same amounts of total smoke nicotine as do our comparable brands. However, Marlboro smoke is typically at pH between 6.8 to 7.3, and Kool smoke is typically at 6.4 to 6.6, as compared with WINSTON smoke at ph 5.8 to 6.0 and SALEM smoke at pH 6.0 to 6.2."
Now first of all, that pH, is that the scale of zero to seven -- or 14 that we were talking about?
A. Correct. But the changes that we talked about yesterday, you go a small change on the pH scale, it's a logarithmic scale, so a change of one unit is a ten-fold increase. So a difference between 5.8 and 6.8 is ten times different.
Q. Okay. And when Dr. Teague here was referring to the same amounts of total smoke nicotine and then he differentiated the pH, what is total smoke nicotine?
A. That would be just the measure of all the nicotine in the smoke.
Q. Is that referred to as the delivery?
A. I think so, yes.
Q. Okay. Now he goes on, then, to say, "Thus, Marlboro and Kool contain -- smokes contains more 'free' nicotine than our comparable brands, hence we would be expected to show more instantaneous nicotine 'kick' than our brands."
Did you see that in other documents of the defendants?
A. Yes. Several documents.
Q. And if you could turn to page four of this, and specifically -- see the whole page first, there you go -- and we want to go down to Roman numeral VII as soon as we see the whole page, and this part of the memo is entitled "RESEARCH ACTIVITIES, CURRENT AND PLANNED," and in the very first sentence there does Dr. Teague report that the research that's been conducted by RJR has been collected, correlated, interpreted and described to management, data on smoke pH of various brands?
A. That's what it says.
Q. Can you now turn to Exhibit 14009. It is a Lorillard document regarding smoke pH.
Is this one of the documents that you've reviewed during the course of preparing to testify?
A. Yes, it is.
Q. And does it form part of the basis of your opinion?
A. It does.
Q. And is it consistent with the subject matters of other documents that you've reviewed of the defendants?
A. It -- it does.
Q. Now this document is a presentation by Dr. Spears, the current CEO of Lorillard?
A. That's correct.
Q. Can you go, please, to page three of this document, and specifically the second full paragraph where Dr. Spears is reporting on the research activities of the document.
MR. CIRESI: Before we do that, I'm going to offer the document, which is Exhibit 100095. Excuse me.
MR. BERNICK: No objection, Your Honor.
THE COURT: Excuse me, counsel. What's the number?
MR. CIRESI: It's the wrong number, Your Honor. 14009.
THE COURT: Court will receive 14009.
BY MR. CIRESI:
Q. If you go to page three then, doctor --
A. Okay.
Q. -- and direct your attention to the second full paragraph.
A. Okay.
Q. And in that paragraph does Dr. Spears report on the research activities on the physiological element concerned with nicotine that had been undertaken by Lorillard?
A. That's -- that's what he says, yes.
Q. And is one of those factors the pH dependence, which you see in number two?
A. Correct.
Q. And with regard to that he states "fraction of inhaled nicotine which is deposited in the respiratory tract, paren, pH dependence, close paren." What is he referring to there, sir?
A. Well the pH dependence would -- would determine what fraction of the nicotine is free base nicotine. The higher the pH, the more free base nicotine will be present, and that has to do with the absorption of the nicotine.
Q. Okay. And does he relate to that in subpart one of that paragraph where he says "absorption rate into the bloodstream, once the nicotine has deposited on the respiratory tract?"
A. Correct. That's one of the factors as well.
Q. Can you now direct your attention to Exhibit 11903, which is in volume one.
A. Okay.
Q. Now this is Liggett document, doctor, dated 12-16-1971?
A. That's correct.
Q. The title is "DEVELOPMENT OF A CIGARETTE WITH INCREASED SMOKE pH?"
A. Yes.
Q. And is this one of the documents that you reviewed with respect to your testimony in this case?
A. It is.
Q. Is it representative of other documents that you reviewed with respect to this subject matter, smoke pH?
A. It is.
MR. CIRESI: Your Honor, we'd offer Exhibit 11903.
MR. BERNICK: No objection, Your Honor.
THE COURT: The court will receive 11903.
BY MR. CIRESI:
Q. We're going to first put up the title page, and I know the Bates numbers on these were reversed, that sometimes happens when documents are produced, so we will go to the first page first even though it's the second page of the document. All right?
On that we see the title "DEVELOPMENT OF A CIGARETTE WITH INCREASED SMOKE pH."
A. Yes.
Q. And in the first paragraph there, "SUMMARY OF PROGRESS," is it indicated there that Liggett was researching this issue of smoke pH?
A. They were.
Q. Okay. And let me read that -- that portion. "Increasing the pH of a medium in which nicotine is delivered increases the physiological effect of the nicotine by increasing the ratio of free base to acid salt form, the free base form being more readily transported across physiological membranes." Let me stop right there.
When we were talking about the lung yesterday, is that a physiological membrane?
A. It is.
Q. "We are pursuing this project with the eventual goal -- goal of lowering the total nicotine present in smoke while increasing the physiological effect of the nicotine which is present, so that no physiological effect is lost on nicotine reduction."
Can you tell me what was being discussed there?
A. Well in terms of the nicotine delivery, this was an effort to maintain or actually enhance the delivery of free base nicotine so that it continued to have the physiological effect, which is the effect on the brain and the central nervous system we talked about yesterday. So it's just a way of changing the form of the nicotine, increasing the amount of free base nicotine available to the alveolar capillary membrane so that there is more available to cross that membrane to get into the bloodstream to get to the brain faster.
Q. Now doctor, during this period of time, 1971, were the cigarette manufacturers reducing tar and nicotine -- tar and nicotine in their cigarettes?
A. Well that was what was indicated earlier, and -- and that was the graph, I think, that one of the people showed on the opening statements, that the delivery of tar and nicotine was reduced over time.
Q. Okay. Now then this paragraph here relates to when you're lowering the tar and nicotine, how you keep the kick up so that you get the physiological effect; is that what's being referred to?
A. That's exactly what's being described here. So if you have more free base nicotine available, even though there may be less delivery, more free base nicotine gets into the system faster, gets to the central nervous system faster, and therein lies the addictive potential of the nicotine.
Q. And if -- if we could go, then, to the second page of this memorandum with regard to Liggett, did Liggett run into a problem with its filter regarding this issue?
A. That's correct. It had a different filtering mechanism that apparently was not -- not what they wanted it to be.
Q. If we could look at the -- starting on the third line, "It was found that the additive increased tobacco pH and unfiltered smoke pH, but that the L&M" -- Liggett & Myers -- "filter had a buffering effect on the smoke so that there was no observable filtered smoke pH change." Do you see that?
A. Yes.
Q. Is that what you were just referring to?
A. Yes, that's correct.
Q. And does the memo then reflect that Liggett tried another filter on this cigarette and found that the cigarette with that filter then did exhibit the expected increase in tobacco and smoke pH?
A. That's correct.
Q. And that's at the -- I think it's the third-to-the-last line which reads as follows --
They had put an empty-cavity Lark filter on the cigarette; is that right?
A. Right.
Q. And then it reads, "These cigarettes exhibited the expected increase in tobacco and smoke pH." Is that correct?
A. Right.
Q. And from your review of the documents, did you find that filters could have an effect based on what the defendants' research regarding the smoke, tar or nicotine that's delivered?
A. That's correct.
Q. Can you direct your attention now, doctor, to Exhibit 12223, which is in the same volume of exhibits.
A. Okay.
Q. And this is a B.A.T product development review, the date of it is June 1988, the title is "The Significance of pH in Tobacco and Tobacco Smoke," the author is Mr. D. E. Creighton, C-r-e-i-g-h-t-o-n, a research scientist, and it's issued by Dr. T. Hirji, H-i-r-j-i, who was project manager for marketing at one time, and also in R&D for B.A.T. Company Ltd.
Have you reviewed this document before, sir?
A. I have.
Q. And is this document one of the documents that forms the basis of your opinion?
A. It does.
Q. And is it consistent with other documents that you saw of the defendants with respect to this pH issue?
A. It -- it does.
MR. CIRESI: Your Honor, we would offer Exhibit 12223.
MR. BERNICK: No objection, Your Honor.
I'd like to note for the record, this is a BATCo document.
THE COURT: The court will receive 12223.
BY MR. CIRESI:
Q. Can we go to the first page. It says "Product Development Review," and down in the lower left-hand corner, if we could get that up a little, bring that in, there is a research and development stamp and then a logo of B.A.T, B-A-T, and it says "This review must not be copied or shown to unauthorized persons."
If we go on to the next page, this is the title page. If we could move up just a little bit. There we go. Little bit more so we can see the upper right-hand.
Up there in the upper right-hand corner is the date of June of 1988, and the title is "The Significance of pH in Tobacco and Tobacco Smoke," and we see the author and who it was issued by, and if we could go down to the bottom -- counsel I believe just referenced the fact this was a B.A.T. Company Ltd. document. Right above that does it say it's also what's been referred to as BAT (U.K. and Export), Ltd.? I believe counsel always went "BATUKE," put the quotation marks up there. Does it also indicate that?
MR. BERNICK: Sure does.
I think it might be -- with Your Honor's indulgence to explain to the jury, that the logo that appears on the bottom is the logo that was placed on the document in connection with its production in this case; that is, it was produced by BATCo, and that's why it appears there. It's kind of like the Bates stamp, it's a way of indicating the source of the document.
MR. CIRESI: So that, Your Honor, it was produced by BATCo in this litigation from their files, but it also is a BATUKE document.
MR. BERNICK: It was generated by BATUKE, yes.
THE COURT: Let's move on, counsel.
BY MR. CIRESI:
Q. Now can we go to the first page, which is entitled "The Significance of pH in Tobacco and Tobacco Smoke." First of all, in the first paragraph, is there a definition of pH?
A. Yes, there is. It's basically the one we talked about yesterday.
Q. Okay. And in here it's talking about the logarithmic nature of the pH scale.
A. That's correct.
Q. And it's showing that that means that for one pH there's a ten-fold change in acidity or alkalinity; is that correct?
A. Right, that's correct.
Q. And that's the issue you were talking about yesterday?
A. Yes. Small changes in pH would make big changes as far as the hydrogen ion concentration.
Q. If you could go to page two, is there reported there the pH of tobacco for various different types of tobacco and showing typical values of pH?
A. That's correct.
Q. We have flue-cured at 5.45, air cured or burley, 5.8, oriental at 4.9 and Maryland at 6.60; is that right?
A. Yes.
Q. And if you could direct your attention, then, to page three, is there reported at that page
BY MR. Creighton the effects of pH on smoke?
A. Yes. It's in the middle of the page.
Q. Okay. And what is reported there in this document?
A. Well it just shows the -- the range of pH as it -- as it relates to free base nicotine, is -- is basically what it shows.
Q. And is there then a definition of free base nicotine as extractable or unbound nicotine?
A. It does. But the first sentence I guess is probably the most important, "Free base nicotine is the most chemically and physiologically active form because it is most rapidly absorbed. It's more rapidly absorbed than nicotine, it says, because it is a smaller molecule, as we talked about yesterday.
Q. Can you go over, then, to page four of this document, doctor.
A. Okay.
Q. Before you do that, I'd like to direct your attention back just to the bottom of that page. Mr. Creighton reports here "The important feature of Figure 2," which is one of the figures in this document, "is that relatively small changes in pH between 6 and 8 have a very large effect on the proportion of free base nicotine in the smoke." Is that what you were referring to yesterday?
A. That's correct. And I think I was on the wrong page when I said what I just a minute ago. The free base nicotine and non-extractable nicotine that's on this page explain the terms. Free base nicotine and extractable nicotine or unbound nicotine they say here are equivalent, so you'll see them used interchangeably. And non-extractable nicotine is the salt form or the bound form of nicotine, and so that's the one that's less available as far as transfer across the physiological membrane.
Q. And if we then go on to the next page, that's the reference that --
A. That's correct.
Q. And I apologize --
A. I'm sorry.
Q. -- for not getting you the right page.
A. Yeah.
Q. The next page is the "Effects of Free Base and Bound Nicotine on the Sensory Properties of Smoke," and there it's reported that free base nicotine is the most chemically and physically -- physiologically active form because it is most readily absorbed; is that correct?
A. That's correct. Most rapidly absorbed.
Q. And if you could direct your attention down to the pH range of the general approximation that's in this document of U.S. blended cigarette smoke, is it depicted there the range that you get by small changes in pH? If we could just use the U.S. blended cigarette smoke.
A. Yes, the one in the middle, and it shows a pH range of 5.2 to 6.2, and then it shows you out to the right of that percentage that you might expect in a solution like that to be free base nicotine. And this really shows the logarithmic effect of pH. So with a change of one unit, from 5.2 to 6.2, there's a ten-fold increase in the amount of free base nicotine or the percentage of free base nicotine going from .22 to 2.20.
Q. Doctor, could you turn, then, to the chart of the chemical structure of nicotine, which is at Bates number, last three pages, 420.
A. Okay.
Q. And we have three different chemical equations there, one is the diprotonated, monoprotonated, and then unprotonated. Can you describe what is being depicted here?
A. Well when you talk about protons, you're talking about hydrogen ions, so in the top drawing at the bottom of the first N, which is a nitrogen, is an H with a little plus beside it, so that represents a proton. And there's also next to the -- the H -- CH3, there's another H there. So there's two hydrogen ions, and that's what it means, diprotonated. Two is di, protonated means hydrogen ions. And so this is the bound type of nicotine or the non-extractable type of nicotine.
If you lose one of those hydrogen ions, then it becomes monoprotonated, one proton, and that's kind of an intermediate form. And then the one at the bottom is the one where there's no hydrogen ions present, and that is the unprotonated or the free base form of nicotine, and they also term it extractable form. There's an extraction process at one point that they use where they would extract nicotine with various solvents, and that's -- that's how they did the procedure. But basically, the salt form or the bound form and the free base form are the two that are the -- kind of each ends of the spectrum.
Q. And could you turn back one page, then, to 419, which is entitled Figure 2, "DISTRIBUTION OF BOUND AND FREE BASE NICOTINE FORMS AT VARIOUS pH LEVELS." And what's being depicted there, sir?
A. This is --
Q. This is a busy graph.
A. Yeah.
Q. But could you describe it.
A. I don't have my pointer with me. The -- the -- graph shows the -- the three different forms of nicotine, it shows the diprotonated, the monoprotonated and the unprotonated forms, and the they're basically in equilibrium, depending upon what the pH is. So if you move the pH one direction, then there will be more of one form than the other. So at a pH of eight, which is the dissociation constant for nicotine, it's called the PKA, at a pH of eight, half of it will be in the bound form and half of it will be in the free form. And if the pH is less than that, again with the logarithmic curve, it will be lots less depending upon what the pH is.
So if you look at the bottom of this, if you could make that a little bit -- come in closer and just go to the bottom where it shows the pH of solution? Yeah. That's -- that's better. So the pH of solution at the bottom where you see the number six, just to the left of that is where the diprotonated curve kind of ends, but then as you get on to the next part of the curve, then the solid line begins to go up very dramatically, depending upon what the pH is. And that's why I'm talking -- when you talk about the curve being exponential, it kind of just almost goes straight up as the pH goes higher. So that represents the free base nicotine.
Q. Now cigar smoke is at about eight pH we saw from the documents?
A. That's the rough -- the rough estimate. It probably can vary. But eight is what they use in the documents that we've seen.
Q. Okay. Now at a pH of eight, is nicotine absorbed in the mouth --
A. Oh, free base nicotine --
Q. -- with cigars?
A. -- will go across any biological membrane, that's -- that's how it gets into the system. And that's the --
Cigar smoke doesn't have to be inhaled in order to get a lot of nicotine into the system. If you puff on a cigar, there is a very large amount of free base nicotine, as indicated here, so if you puff it in your mouth, hold it in your mouth, you can get very large quantities of nicotine, just the same --
Same thing is true with smokeless tobacco. The higher the pH of smokeless tobacco, the more free base nicotine is contained in the -- the smokeless tobacco, and therefore the more absorption that occurs across that biological membrane, which happens to be in the mouth.
The other would be pipe smoke. Pipe smoke also has a higher pH. And some of the highest cotinine levels that we see sometimes are in people that use those other products. So there are other ways of getting nicotine into the system, but cigarettes just happen to be the most efficient delivery system to get that very high spike that we talked about yesterday.
Q. Now the cigar smokes have the higher pH; is that what you're talking about?
A. That's correct.
Q. Okay. And you said the cotinine level. What was that again?
A. Well cotinine is the metabolic product of nicotine. When nicotine is ingested in any form, it goes into the body system and it goes around, eventually gets metabolized by the liver. And cotinine is one of the metabolic products of nicotine that we can measure in the bloodstream. And it has a longer half-life than nicotine. Nicotine has a very short half-life, around 120 minutes.
And what "half-life" means is that if you had a solution -- a chemical in your bloodstream like nicotine, and let's just give it a number, say the number was 20, 20 nanograms per ml, if it has a half-life of 120 minutes, then in 120 minutes the amount left in your body would be half of that, it would be ten; and then another 120 minutes later, it would be five; and 120 minutes later, it would be two and a half. And so that's what a half-life is.
Cotinine has a longer half-life, it has a half-life of 18 to 20 hours, so it's much easier to measure. And it gives us an idea of what the total exposure of a person has been to nicotine over a longer period of time. It's just a measure we use. Like we want to use it to measure how much nicotine patch therapy to give a patient, we would measure their cotinine level, which would give us an indication of how much nicotine they've been taking in. And we might use two patches instead of one with people with very high cotinine levels.
Q. Okay. Now doctor, based on your review of the defendants' documents, do you have a opinion to a reasonable degree of scientific certainty whether the defendants were aware that free base nicotine is the most chemically and physiologically active form of nicotine because it is most rapidly absorbed into the blood system?
A. They absolutely were.
Q. And doctor, based on your training and expertise and experience, do you have a opinion to a reasonable degree of scientific certainty whether nicotine is addictive?
A. Absolutely it is.
Q. And when we speak about addictive, is it addictive to all people?
A. Oh gosh, no, no. There is a range of -- of this as far as people who can use and not become dependent, just like there is a range of people who can use heroin and not become dependent. There is lot of reports in -- in the literature about that type of exposure. Even from Viet Nam, people who may have had used heroin very regularly, but then when they got back to the United they weren't dependent upon it. So even with a drug hike heroin, not everyone becomes dependent upon it. And the same thing is true of nicotine.
Q. And did the defendants' documents indicate they were aware of that?
A. Aware of its addictive potential?
Q. Yes.
A. Yes, they were.
Q. Were they aware that there was a range of tolerance with respect to nicotine?
A. Yes.
Q. Prior to the filing of this lawsuit in August of 1994, did any of the defendants ever publicly admit that nicotine was addictive?
A. Not to my knowledge.
MR. BERNICK: Objection, Your Honor, lack of foundation.
THE COURT: You may answer that.
A. Not to my knowledge, no.
Q. Okay. Now you used the term "addiction" and "dependence." Is there a difference?
A. No. We use those terms interchangeably in the field. They are basically synonymous. We've got a lot of discussion over the years of what -- which one to call this. Even when we named our Nicotine Dependence Center we had a lot of discussion within our staff whether or not to call it the Nicotine Addiction Center or the Nicotine Dependence Center, and we discussed it and decided to call it the Nicotine Dependence Center for a lot of different reasons. The Surgeon General's report of 1988 is called -- or is named "The Surgeon General's Report on Nicotine Addiction," and they had the same public discussions there. And others have had those kind of discussions as well.
But basically "dependence" and "addiction" are synonymous terms, and we use them in that way.
Q. Okay.
A. They're interchangeable.
MR. CIRESI: Your Honor, at this time I'd like to play a proceedings -- an excerpt from the proceedings before the House Subcommittee on Health and Environment of the House Committee on Energy and Commerce, Henry
A. Waxman, Chairman, dated April 14th, 1994, which is the testimony of the CEOs of the defendants on the issue of nicotine before Congress.
MR. BERNICK: Object, Your Honor. I'm going to object. I believe that that congressional proceeding is not properly admissible into evidence, certainly not excerpts from it. And I don't believe that that was disclosed as part of the expert materials that this witness relied upon in connection with the expert discovery in this case.
MR. CIRESI: It was so disclosed. It's on the exhibit list.
THE COURT: Excuse me, counsel. Was it disclosed or was it not?
MR. BERNICK: In the materials that were listed for his testimony it was disclosed, but in connection with the expert process; that is, the identification of those materials upon which he would rely as an expert, it was not in fact disclosed. And that is the basis for our objection.
MR. CIRESI: Could I address that now?
THE COURT: Please.
MR. CIRESI: Okay. As the defendants have stated with regard to their experts, they said these are illustrative. Neither side was required in the expert reports to list every single document that the experts would be relying on to form the basis of their opinions. What they were required to do was to set forth the opinions that they would be testifying to. That's the notice that the parties needed to have and were given.
THE COURT: All right. Proceed, counsel.
MR. BERNICK: Your Honor --
THE COURT: Proceed, counsel.
MR. BERNICK: All right.
(Video excerpt played.)
BY MR. CIRESI:
Q. Doctor, is there a standard used in the medical community for defining substance dependence or addiction?
A. There is.
Q. And what is that, sir?
A. What's called the DSM IV criteria, which is the Diagnostic and Statistical Manual, the fourth one, from the American Psychiatric Association.
MR. CIRESI: And Your Honor, we would offer Exhibit GK000298, which is the American Psychiatric Association's Diagnostic and Statistical Manual No. IV, and we'd offer it pursuant to 803(18), a learned medical treatise.
MR. BERNICK: I have no objection to that.
THE COURT: It will be received into evidence.
BY MR. CIRESI:
Q. And doctor, can you turn in the second volume of your book to Exhibit 30219 --
MR. CIRESI: Which, Your Honor, we're going to offer for illustrative purposes. It is part of -- it is the criteria for dependence or addiction from Exhibit GK000298. We're offering it for illustrative purposes.
MR. BERNICK: I'm sorry, the number again was that?
MR. CIRESI: 30219.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 30219.
BY MR. CIRESI:
Q. Doctor, can you first of all explain the title, it says "Criteria for Substance Dependence." Does that also include addiction in that term?
A. Correct. And again we use the term "dependence" and -- and "addiction" synonymously. And this is the criteria for all substance dependence, "substance" meaning a drug and "dependence" meaning the addictive or the dependence process. So in order to be classified as a drug of dependence, it would have to have, as it says in the beginning of this, a pattern of substance abuse manifested by three or more of the following occurring at any time in the same 12-month period. So this is a -- a way of defining for us and for our -- our profession how to judge when a person would be classified as being dependent on a substance.
Q. Now you say it has to have a substance. What's the significance of that?
A. Well, a substance is like a drug -- or is a drug as opposed to other compulsive behaviors. There are a lot of compulsive behaviors, and smoking is a compulsive behavior too, but it has also a substance or drug present as well. There are compulsive behaviors, like compulsive gambling and other types of compulsive behaviors. The thing that sets this aside is the drug is central to the issue or the substance is central to the issue, and that's what we talk about when we talk about substance dependence.
Q. One of the defense counsel mentioned in their opening statement, I think, something to the effect that water or TV could be addictive. Is that possible?
MR. BERNICK: Mischaracterization of what was said. I object, Your Honor.
THE COURT: Okay. The jury will recall what the opening statement said.
Q. Is water addictive?
A. No.
Q. Is TV addictive?
A. No.
Q. Does that make any sense to you as a medical doctor?
A. No.
Q. Can we then direct our attention to tolerance. Can you describe that criteria.
A. Tolerance is the phenomenon that we see with -- with drugs of dependence where, when you are exposed to it initially, then you may have an effect, that if you're exposed to it more and more and more, that effect goes away.
You recall the first experience a person may have had with smoking a cigarette, like myself, the first cigarette I ever had, I felt like I was turning green, I got nauseated, I got lightheaded and I didn't feel very well. And in fact somebody will get sick to their stomach if they take -- if they smoke too much at their first experience. And the way that a person overcomes that or gets accustomed to that is to smoke more. And the more you smoke, the more tolerance there is to those adverse effects like nausea or lightheadedness.
So the phenomenon begins to build up in the central nervous system, that's where it's mediated, so that a person can smoke large numbers of cigarettes over a period of time and not have those -- those adverse effects.
The tolerance phenomenon in this one, in nicotine dependence, is a little different than some of the tolerance phenomenon to other drugs. Some of the other drugs take a lot longer to develop a tolerance, and therefore when they stop using the substance, like alcohol or opiates, it takes a long time for that tolerance to go away.
With nicotine, the tolerance can develop fairly rapidly, and then when a person stops smoking, the tolerance can go away. We watch the patients who will experience that. For example, they may stop smoking for a month or six weeks and then start again, and they'll experience the same thing all over again; they'll get nauseated, lightheaded with their first cigarette again. So it's a phenomenon we observe. And tolerance is a biochemically mediated experience within the central nervous system.
Q. The next criteria is withdrawal. Can you describe that?
A. Withdrawal symptoms are what happens when a person has a blood level of the substance to go down or to go away completely, and it can happen either way. We often have patients who will awaken in the middle of the night to smoke a cigarette because they had withdrawal symptoms during the night that would awaken them because their nicotine levels have gone down. So it doesn't have to be totally abstinence from the substance in order to have withdrawal symptoms. Withdrawal symptoms can occur just with a decrease in the nicotine levels in the bloodstream.
And remember that the nicotine half-life is very short, and that's one reason that the dosing of nicotine in cigarettes has to be so frequent is because the half-life is only 120 minutes. So when you smoke a cigarette, then 120 minutes later the amount of nicotine that was in your bloodstream has been reduced at least by half, if not more, and so that's why repeated smoking throughout the day is required in order to keep the nicotine levels up.
So withdrawal symptoms can occur either with a decrease in the nicotine level or it can occur when the nicotine level goes down completely. Withdrawal symptoms are very well described as being anxiety, irritability, frustration. I think I described my own experience when I stopped smoking. My co-workers wanted me to start smoking again because I was so irritable and so crabby and I wasn't able to concentrate on what I was doing. Inability to concentrate is one of the other withdrawal symptoms that occurs.
People can become depressed. Depression is one of the symptoms that we know occurs in people who stop smoking. I think I described yesterday people who have had to be admitted to the hospital because of severe depression. Probably the -- the most profound evidence of withdrawal I've ever seen is a woman that we had in our inpatient treatment program.
And we were making rounds on the second day after she had been admitted, and at the time she was admitted her cotinine level was in around the 1100 range or so. She still kind of holds the indoor record. And the cotinine level of 1100 would be the equivalent of smoking four to five packs of cigarettes in a day, and that's what she had been smoking. And her -- her ability to concentrate and to really be in touch with all of us was so impaired that when I walked in the room she was looking at her watch and poking on it, and she said that -- that this is really hard to dial the telephone. And -- and she really was very confused and in the midst of the most severe withdrawal I've ever seen.
So withdrawal symptoms can be mild, they can be not -- they can be absent, some people do not have severe withdrawal symptoms at all, they can be moderate or they can be severe, depending upon how much exposure the person has had over what period of time.
Q. Now the third criteria for addiction or dependence, "Substance taken in larger amounts or longer than intended." Can you describe what that entails?
A. Well the "than intended" is kind of the key part to this, because it really has to do with control. Patients very often -- my --
My own example, I would get up in the morning, a lot of the mornings, and I'd say well I'm not going to smoke as much today as I did yesterday. I smoked two to three packs a day when I smoked, and so you had to work really hard to get that many cigarettes in. And there were many days that I would say well I'm not going to do that all over again, but then about the second hour of the day, the control mechanism, which had been lost a long time ago for me, would have -- would take over and the drug itself would take over and I would smoke the same number of cigarettes all over that day, even though I had consciously decided not to do that. I just didn't have the control over the substance.
And that's -- that is the -- one of the central issues here, is loss of control. I had lost my choice. I didn't have a choice any more in this matter because the drug was interfering with my choice.
Q. The next criteria is "Persistent desire or unsuccessful efforts to cut down or control substance use."
A. It's kind of similar to the -- to the third criteria, and that is the desire to control the use. And -- and when you have -- when you're dealing with a substance of dependence in a person who is becoming or has become dependent, the control is -- is no longer there because the drug is exercising control.
Now that doesn't mean that somebody can't cut down or -- or -- or -- or reduce their intake for periods of time. The patients we see have a lot of difficulty with this because they can reach down to a certain level of smoking, around ten cigarettes a day, and when they try to go below that they have a lot of difficulty as far as withdrawal symptoms are concerned. They can smoke hard enough on ten cigarettes a day to usually get enough nicotine into their system that they can get through the day without too severe of withdrawal symptoms. And below that kind of threshold for those individuals, they will have withdrawal symptoms.
So when -- when we help people to stop smoking, there has been a lot of theory in the past, maybe -- maybe people can just cut down and fade down in their use and cut down one or two more a day until they get down to zero. Well they hit that barrier around ten or so cigarettes a day and they can't go below that, and usually will then relapse to smoking at higher levels. It's one of those things that really has to do with control. And people will tell you that they have tried many, many times to stop smoking. I stopped smoking dozens of times, sometimes for as long as only 30 minutes, because then the desire to smoke would come back and it would be overpowering.
Q. Can we move then to the next criteria, doctor, which is "Great deal of time spent in activities necessary to obtain or use the substance, or recover from its effects."
A. Well this isn't quite a big a deal as it used to be as far as cigarettes are concerned. When I was growing up and when I was in college -- I didn't start smoking until I was in college. I played basketball and -- and didn't start -- start smoking until I was in college after I'd stopped playing basketball. But at that time in -- in our history, if you will, there weren't convenience stores so you could go at any hour of the day or night to go buy cigarettes or anything else. So after I had been smoking for about a year, I was a heavy smoker not at the very beginning, but within six months I was a very heavy smoker, and within a couple of years I was an extremely heavy smoker, two to three packs a day, and I spent an enormous amount of time making sure that I never ran out of anything.
I would start the day with two packs of cigarettes, two fresh packs, unopened packs. I had a Zippo lighter with me at all times, I had a Ronson lighter fluid in the glove compartment, Ronson lighter fluid in the medicine cabinet, and though it's not as much a big deal today as far as spending time making sure the supply is there, most people who are dependent will make sure that they don't run out, because when you run out, then the symptoms can be very severe.
Q. The next criteria is "Important activities given up or reduced because of substance abuse." Can you describe that?
A. Well it is a very important part of what I do from a medical standpoint in the patients that I see because they often will give up things and not do things because of their smoking.
As time has gone into the 1980s and 1990s, as smoking policies have become more restrictive, we've had people who retire from jobs because of smoke restrictions at work. I've not known of anyone to be fired from our place, but there have been people who have retired that are giving up important things because the substance is more important than that.
I'll never forget a woman that I had that became very depressed, and I inquired of her why are you depressed? And as we went through the history-gathering process, it became apparent that she'd become depressed because of her daughter-in-law. And her daughter-in-law had made a little rule in her house that there was no more smoking, and the daughter-in-law and son -- and son had a baby, and this woman became depressed because she couldn't any longer go see the grandchild. And the reason she couldn't go see the grandchild was because the daughter-in-law had put a rule in the house that she couldn't smoke in the house. And she became depressed and we had to deal with that, and it was not because of anything except her dependence on nicotine.
So people very frequently will give up important things to them, even to the point of giving up relationships, because of their dependence on this substance.
Q. And the last criteria then, doctor, is "Continued substance use despite knowledge of a physical or psycological problem likely caused or exacerbated by the substance. Can you describe that?
A. Well as -- as an internist, I probably see this one most often. Excuse me. I take care of parents and I've taken care of patients all of -- all of my career, and this is probably the one that is the most difficult to deal with because these patients that we see have serious medical problems but continue to use this substance, nicotine delivered via cigarettes. And as I said earlier, the cigarette is the most efficient delivery device of nicotine that exists; it is the best way to get the nicotine to the central nervous system. Unfortunately, it carries along with it four thousand other compounds and chemicals as were described earlier of which 43 are known carcinogens, and so the effect that that has on the human body is devastating.
So this one is the one that -- that physicians see the most often. We see people with emphysema, we see people with peripheral vascular disease, hardening of the arteries leading to their legs, we see people with coronary artery disease, we see people dying of coronary artery disease.
They just reported in the news like -- like even today, Dave Moore died of coronary artery disease, but he really died of nicotine dependence because he was a smoker. So we see this all the time, and it's the highest level criteria that we use for the measurement of a dependence-producing product.
The best example I think I can give you of this, and he -- and he really gives examples of all of this, was a man that I took care of until he died last year, and he was a recovering alcoholic. In fact when I first saw him as a fellow, when I was in training in 1975, I got him into a treatment for his alcoholsm. He continued to smoke during the all the time from 1975 through the summer of 1997, and he had every complication that you can imagine; he had emphysema, he had coronary artery disease, had bypass procedure, he had peripheral vascular disease, had to have two procedures on his legs in order to get circulation working again into his legs, he had a perforated peptic ulcer, and -- and he still did not get the relationship between his smoking and his diseases. And even though I confronted him with that and said, "Frank, you know, what do you think about all these diseases that you've had that are related to your smoking?" And his response was, "You know, doctor, I just don't see how my cigarettes have caused all of this."
So denial and rationalization feed into this one, which is the last one, and we see it every day in our medical practice.
THE COURT: Counsel, I think we'll recess for lunch at this time and reconvene at 1:40.
THE CLERK: Court stands in recess.
(Recess taken.)
AFTERNOON SESSION.
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. CIRESI: Thank you, Your Honor.
BY MR. CIRESI:
Q. Good afternoon, doctor.
A. Good afternoon.
Q. In 1988, did the Surgeon General of the United States issue a report on "The Health Consequences Of Smoking, NICOTINE ADDICTION?"
A. That's correct.
Q. Could you turn, doctor, please, to Exhibit 3820. Again in volume one.
MR. CIRESI: Your Honor, we would offer Exhibit 3820, report of the Surgeon General, 1988, under 8038), public records and reports.
MR. BERNICK: No objection.
THE COURT: The court will receive 3820.
BY MR. CIRESI:
Q. Doctor, can you direct your attention, please, to 3820. First of all, we have the title page on the overhead, and specifically to page nine, which has the "Major Conclusions," and please tell the ladies and gentlemen of the jury the major conclusions of the Surgeon General's report of 1988 were.
A. That "Cigarettes and other forms of tobacco are addicting.
"Nicotine is the drug in tobacco that causes addiction.
"The pharmacologic and behavioral process -- processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine."
Those were the major conclusions from the '88 Surgeon General's report, which, by the way, is about that thick, six hundred or so pages.
Q. Now doctor, when -- based on your experience, when people start smoking, are they aware of the addictive nature of nicotine in the cigarettes?
A. No. Most people who start smoking start smoking before the age of 18. In fact more -- most people start smoking before the age of 16. I was an unusual person in that respect because I didn't start until later, but I still started smoking at age 18 or 19.
So most people start smoking when they're teen-agers, and teen-agers are children, do not really recognize or even think about nicotine as being an addicting substance.
Q. And from your review of the defendants' documents, were they aware, based on your -- on this review, that most people who started smoking were not aware of the addictive nature of nicotine?
A. That's correct, they were.
Q. Can you direct your attention, first, to Exhibit 12408.
A. Okay.
Q. And this is a document that's already in evidence. Please put the title page up on the --
It's Mr. Teague's April 14th, 1972 research planning memorandum on the nature of the tobacco business on the crucial role of nicotine therein. Would you please direct your attention to pagel four --
A. Okay.
Q. -- of that report, that confidential report.
A. Okay.
Q. And I'd like to specifically direct your attention to what is the first full paragraph starting with the word "Before proceeding...," and I'd like to -- to read that and then ask you some questions about it.
"Before proceeding too far in the direction of design of dosage forms of nicotine, it may well be -- it may be well to consider another aspect of our business; that is, the factors which induce a pre-smoker or non-smoker to become a habituated smoker. Paradoxically, the things which keep a confirmed smoker habituated and 'satisfied', i.e., nicotine and secondary physical and manipulative gratifictions, are unknown and/or largely unexplained to the non-smoker. He does not start smoking to obtain undefined physiological gratifictions or reliefs, and certainly he does not start to smoke to satisfy a non-existent craving for nicotine. Rather, he appears to smoke for purely psycological reasons -- to emulate a valued image, to conform, to experiment, to defy, to be daring, to have something to do with his hands, and the like. Only after experiencing smoking for some period of time do the physiological 'satisfactions' and habituation become apparent and needed. Indeed, the first smoking experiences are often unpleasant until a tolerance for nicotine has been developed."
Now first of all, the tolerance that's mentioned there, is that one of the criteria of addiction or dependence?
A. That's correct. We went over that before the lunch hour. In this situation it's tolerance to those adverse side effects of nausea, light-headedness and so on, and the tolerance develops fairly quickly, and goes away fairly quickly if a person stops smoking.
Q. In 1972, what Mr. Teague was defining with regard to pre-smokers or non-smokers, is that consistent with what you've learned in your clinical experience?
A. That's correct, that they really may start smoking for all of these reasons, the image, non-conformity, defying, and all of those things listed here, but once hooked, then the nicotine is the driving force.
And it's interesting that up above, when he talks about that a person doesn't start smoking to satisfy a non-existent craving for nicotine, "craving" is a word that we use when we talk about cocaine. Cocaine craving, nicotine craving are synonymous in many respects because the craving can be very powerful.
So people don't start smoking to avoid withdrawal symptoms because they haven't experienced them yet.
Q. Is it inconsistent to say that nicotine is addictive and at the same time to say that people can stop smoking?
A. Oh. Oh, gosh, no. People who are dependent on drugs, alcohol, other drugs, can stop -- stop using those drugs. That's not inconsistent at all. Just because a person can stop using a substance, and stop smoking, does not reclassify it into a non-addicting substance, no.
Q. Can you direct your attention, then, to page five of this report.
A. Okay.
Q. In the middle of the first full paragraph, starting with the word "If" there's the following, "On the other hand, if we are to attract non-smoker or pre-smoker, there is nothing in this type of product that he would currently understand or desire. We have deliberately played down the role of nicotine, hence the non-smoker has little or no knowledge of what satisfactions it may offer him, and no desire to try it. Instead, we somehow must convince him with wholly irrational reasons that he should try smoking, in the hope that he will for himself then discover the real 'satisfactions' obtainable."
Is that consistent with what you've learned from your clinical experience, doctor?
A. It is. And it's always curious in these documents when they put things in quotation marks, this -- this has "satisfactions" in quotation marks right in the middle of it, and I think that what's being referred to is the effect of the drug, and -- and that's really what -- what this person is saying because that is the effect that they're looking for. That's when people start smoking and then they begin to have the experience of the effect of the drug, that's -- that's how -- that's how it occurs.
Q. And doctor, can you then turn your attention to Exhibit 13677, which would be in the second book.
A. Okay.
Q. This is a Brown & Williamson document dated August 24th, 1978, from the brand manager,
H. D. Steele, to Mr. M. J. McCue, a brand manager.
Have you reviewed this document, sir?
A. I have.
Q. Is this one of the documents that you've used to form the basis of your opinion?
A. It is.
Q. Is it consistent with other documents that you've seen of the defendants in their files?
A. Yes, very consistent.
MR. CIRESI: Your Honor, we would offer Exhibit 13677.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 13677.
BY MR. CIRESI:
Q. At the top it's marked "BROWN & WILLIAMSON, PROTECTED BY MINNESOTA PROTECTIVE ORDER." The subject of this is "Future Customer Reaction to Nicotine."
Now in this memorandum does Mr. Steele point out that Brown & Williamson was aware that few customers were aware of the effects of nicotine?
A. Yes, he does, in the beginning of the second paragraph.
Q. Let me read that. "Very few customers are aware of the effects of nicotine, i.e., its addictive nature and that nicotine is a poison. Most smokers view nicotine as the number that follows the 'tar' figure on cigarette packs. Hardly any consumers use nicotine numbers as a basis for their purchase. Tests have been conducted to determine the effect of including nicotine numbers in the advertising message, and in every case there were adverse reactions to the ads."
Now this knowledge on the part of Brown & Williamson from its studies, is that consistent with what you found in your clinical experience?
A. I think that's not only correct, it's really stated very well. Very few consumers, very few smokers are aware of the effects of nicotine until they get into it. And -- and the early consumers, the starters in their words, which are basically our children, do not know this. They -- they don't realize that it's a toxin or a poison as well as an addictive substance.
Q. And in your review of the documents, did you ascertain whether or not the industry was concerned that if the knowledge of the addictive nature of nicotine became known to the public, the industry would no longer be able to defend smoking as a free choice?
A. I have seen such documents, yes.
Q. Can you direct your attention to Exhibit 14403. This is a --
A. 14303.
Q. 14303.
A. Yeah.
Q. This is a September 9th, 1980 Tobacco Institute memorandum from Mr. Knopick, K-n-o-p-i-c-k, an employee of The Tobacco Institute, to Mr. Kloepfer, K-l-o-e-p-f-e-r, senior vice-president of public relations.
Have you seen this before?
A. I have, yes.
MR. CIRESI: Your Honor, we would offer Exhibit 14303.
MR. BERNICK: No objection.
THE COURT: The court will receive 14303.
BY MR. CIRESI:
Q. Now doctor, this relates to Mr. Knopick's reporting to Mr. Kloepfer on a story that the National Institute of Drug Abuse in 1980, eight years before the Surgeon General's report, wanted to add the word "addictive" to the cigarette warnings. Do you see that?
A. I do, yes. It's in the first paragraph.
Q. By the way, that last document that we saw, the Brown & Williamson one, that was in 1978, ten years before the Surgeon General's report?
A. Yes, it was '78.
Q. And Mr. Teague's was in 1972, about 16 years before the Surgeon General's report; is that correct?
A. Before the '88 Surgeon General's report, yes.
Q. Now in this document on page two, Mr. Knopick reports to Mr. Kloepfer as follows: "I feel badly about my own lack of intelligence-gathering in this situation. But I don't think the questions I now raise are academic. Shook, Hardy" -- which is one of the defendants' law firms defending the defendants -- "reminds us, I'm told, that the entire matter of addiction is the most potent weapon a prosecuting attorney can have in a lung cancer/cigarette case. We can't defend continued smoking as a 'free' choice if the person was 'addicted.'" Now can an addicted person make a free choice, or is his or her choice impacted by the drug?
A. No, and -- and in -- this actually says it very well. Free choice is something that -- that the defendants talk a lot about, but when you talk about an addiction or a dependence, it's well beyond that, it's on orders of magnitude that are very, very much beyond that. So the dependence process and addiction process affects the ability to make free choice.
Q. Can you turn your attention now, doctor, to Exhibit 11938, which would be in volume one.
A. Okay.
Q. This is a private and confidential matter dated February 13th, 1962 of B.A.T. Company, Ltd.?
A. Yes.
Q. And have you reviewed this document?
A. I have.
Q. And is this one of the documents that has formed the basis of your opinions in this case?
A. It is.
Q. And with respect to the issues that it addresses, is it consistent with other documents that you've reviewed of the defendants in this matter?
A. Yes, it is.
MR. CIRESI: Your Honor, we would offer Exhibit 11938.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 11938.
BY MR. CIRESI:
Q. You see first of all, the first page, "PRIVATE AND CONFIDENTIAL," February 13th, 1962, "THE EFFECTS OF SMOKING, PROPOSAL FOR FURTHER RESEARCH CONTRACTS WITH BATTELLE."
A. Yes.
Q. And if you'd turn to page five, you'll see the name of Charles Ellis, who was a senior scientist at BATCo.
A. Yes.
Q. If we go back to page one, we see, then, that there's certain research projects which have code names. Do you see that?
A. Yes.
Q. The first one is MAD HATTER I?
A. Uh-huh.
Q. Which is a preliminary investigation of the factors influencing demanding habits and literature survey?
A. Uh-huh, yes.
Q. Then you go on to page two, MAD HATTER II, investigation of the nicotine balance in moderate and in heavy smokers, and the study of the social and physiological factors in the smoking habit?
A. Yes.
Q. And then you go on to MAD HATTER III, investigation of the fate of nicotine in the body, experiments on animals, to be followed by experiments on human beings. See that?
A. Yes.
Q. If we go on, then, to page three, the next project code name is HIPPO I, to identify and investigate the various physiological effects resulting from the entry of nicotine into the body.
And by the way, let me stop right there. This overview shows when these projects were started; does it not?
A. Yes.
Q. Then if we go on to the next page, there's a code name ARIEL. This was a proposed project that would be aimed at making the first steps toward an actual smoking device as an alternative to the cigarette; correct?
A. That's correct.
Q. And then finally code name HIPPO II, and this would be a continuation of HIPPO I and the argument for it would rest on the relevance and importance of the results obtained from HIPPO I; correct?
A. That's what it says.
Q. Now if you can direct your attention to page seven.
A. Okay.
Q. I'd like to direct your attention to the middle of the page, basically, where it says "If the absorption...." Do you see that?
A. Yes.
Q. "If the absorption of nicotine is made pleasant and attractive this enhances the benefits just as in the case of well prepared and well served food. However, the force of the habit or the strength of addiction is not such as to give any grounds for complacency in the face of alternative methods of stimulating the body to meet stress, and that is just where the danger lies since alternative methods are becoming available. In the last few years there has been a quite remarkable increase in the production of tranquilizer drugs, and while most of these need a doctor's prescription there is already one on free sale in Switzerland. If such drugs become more freely available they will compete with nicotine, which was a -- which is a natural tranquilizer, and will leave smoking primarily dependent on its psycological effects for the maintenance of the habit."
Now is that consistent with what you know about nicotine and its effect physiologically on the body, doctor?
A. It is. And some people have the stimulant effect from nicotine, others have a very sedating or a calming effect. Part of that may be just the relief of withdrawal symptoms. But it's a drug that actually can act in two ways, it can be a stimulant on one hand or can it be a stress reliever or calmer on the other hand. So it's very consistent.
Q. And does the author of this document go on to state that BATCo needs to learn about and know all things that constitute the hold of smoking?
A. Yes. That is, to understand addiction, the last part of that sentence, which --
Q. Go down to the very last paragraph there. "What we need to know above all things is what constitutes the hold of smoking, that is, to an understand the addiction. We wish to be able to set up a reasonable picture of the interplay of the various effects of smoking because only by knowing in detail the performance of our own product can we appreciate the strength and vulnerability of our position."
And did you review documents during the course of this litigation which showed that BATCo and other of the defendants did in fact study nicotine and its addictive qualities?
A. They did.
Q. Can you direct your attention to Exhibit 11899, which is a Philip Morris exhibit.
A. Okay.
Q. This is a Philip Morris exhibit entitled "THE CIGARETTE CONSUMER," March 20th, 1984.
Before I ask you about this document, the last document, doctor, that was --
A. 1962.
Q. 1962, Exhibit 11938. That was 26 years before the Surgeon General's report; is that correct?
A. The '88 Surgeon General's report on nicotine addiction, yes, it was.
Q. Back, then, to Exhibit 11899. It's entitled "THE CIGARETTE CONSUMER," March 20th, 1984. And you did review this; correct?
A. I did.
Q. And it's one of the documents that forms the basis for your opinions?
A. It is.
Q. And is it consistent with other documents that you've reviewed of the defendants concerning the subject matters contained therein?
A. Very much so.
MR. CIRESI: Your Honor, we would offer Exhibit 11899.
MR. BERNICK: No objection.
THE COURT: Court will receive 11899.
BY MR. CIRESI:
Q. Can you direct your attention --
Well let's first look at the first page entitled "THE CIGARETTE CONSUMER," March 20th, 1984.
A. Okay.
Q. If we go to the second page it shows what the report will cover, who smokes, incidence; heaviness of use, consumption; brand loyalty, brand switching.
Can you direct your attention to page 14 of this document.
A. Okay.
Q. If we move toward the -- toward the top, do we find Philip Morris doing the same type of consumer research and finding the same answers as RJR and the other companies' documents that we've already seen --
A. That's --
Q. -- in terms of who begins to smoke?
A. That is correct.
Q. That would be they begin smoking for peer pressure, to rebel, or a certain independence, to appear grown up, or to experiment; correct?
A. Those are some of the reasons, yes.
Q. And if you go to the second check right -- right below that, "But, for the most part, people continue to smoke because they find it too uncomfortable to quit."
Does that relate in any way to the criteria for substance dependence or an addiction?
A. I think it's an euphemism for withdrawal symptoms.
Q. Okay. And the next check point is "Over 85 percent of smokers agree strongly/very strongly to "I wish I had never began smoking." Is that consistent with what you found in your clinical experience?
A. Absolutely.
Q. The next check point is "Over 80 percent claim to have attempted to quit, approximately 40 percent to have quit for more than a week, 22 percent...serious attempt in the past 18 months." Is that what you find in your clinical experience?
A. It actually may be an underestimate, but it certainly -- actually in our experience I think more people would say these answers in this day and time. So this is probably an underestimate of what is reality right now. More people would say that they have attempted to stop.
Q. Doctor, can you turn, then, to Exhibit 13344.
A. Okay.
Q. This is a Brown & Williamson document, protected by the Minnesota litigation protective order, entitled "CONFIDENTIAL" and "LIMITED," dated March 25th, 1983, subject, "PROJECT RECOMMENDATIONS."
Have you reviewed this document?
A. I have, yes.
Q. Is this one of the documents that forms the basis of your opinions?
A. It is.
Q. Is this document and the subject matter that's contained therein consistent with other documents of the defendants that you have reviewed?
A. It is very consistent.
MR. CIRESI: Your Honor, we would offer Exhibit 13344.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive 13344.
BY MR. CIRESI:
Q. The first page is to
R. A. Blott, who was senior vice-president of domestic marketing, carbon copies to
B. L. McCafferty, who was group product director, and
L. R. Lewis, who was the director of international brands. And we see right above "INTERNAL CORRESPONDENCE" -- it may be difficult to make out -- but it says "Brown & Williamson Tobacco Corporation." And over to the right of that in quotes is the word "LIMITED."
Can you direct your attention to page two of that document for project recommendation, it deals with the specific ideas of the project recommendation, and number one is the relationship of nicotine level to switching behavior.
"Nicotine is the addicting agent in cigarettes. It, therefore, seems reasonable that when people switch brands, they have a certain smoking pattern, i.e., number of sticks/day, they will switch to a brand at the same nicotine level.
"I am currently examining all brands by nicotine level and by nicotine/tar ratio levels, comparing those correlations to switching patterns."
Now in your review of the defendants' documents, did you see a number where these companies were looking at tar/nicotine ratios and the addictive nature of various types of cigarettes?
A. Yes.
Q. And Brown & Williamson was one of those companies?
A. They were.
Q. Was one of the project implications of this memorandum that they were going to increase the cocoa flavor in cigarettes?
A. I think that's on another page. I think that was on page two.
Q. All right. If you go to page two, this is dealing with a specialty cigarette. If you look at the third paragraph, "Increase the cocoa flavoring to a subliminally-recognizable level. Chocolate, quote, addiction, end of quote, is probably the major food craving, and a cigarette reminiscent of sweet and chocolate flavors could be appealing."
Now I'm curious, doctor. They use "addiction" here in quotes, and they talk about nicotine addiction in the previous page without the quotes. Is chocolate addicting?
A. No.
Q. Is there any relationship of chocolate to nicotine in terms of addictive and the physiological effects on the body?
A. Well chocolate can have physiological effects, it's xanthine, but it's trivial in comparison to the effects nicotine has. And furthermore, when nicotine is delivered via cigarettes it causes over 400,000 Americans to die every year, so it's clearly very different.
Q. Doctor, one of the criteria in substance dependence -- set of criteria, was the continued use. Do you recall that?
A. Yes.
Q. Okay. Is this known as rationalization and denial?
A. Continued use despite a known -- known complication to a substance of dependence, in other words, developing emphysema and continuing to use, requires rationalization and denial in order for the person to continue to use the substance. Otherwise they would -- if they were, quote, rational about it, they would not do it. So you have to rationalize that, and the denial mechanism can be very, very strong.
Q. From your review of the defendants' documents, did you learn whether or not they were aware of this defense mechanism of people?
A. Yes, they were.
Q. Did they capitalize on it?
A. Absolutely.
Q. How did they do that?
A. They did it by creating doubt, creating controversy. I mean just two days ago we heard about the health controversy is still a controversy. There's no health controversy here. That is a -- a -- a euphemism used by the industry to continue to stir the health controversy, as they would have you to believe it. And the same thing is true with the addictions controversy. This is an addictive drug delivered by a device, the cigarette, that when it's done that way is powerfully addicting. But it's -- it's -- if you continue to have doubt and controversy, then a person who's already dependent on the drug will rely on that sort of information to allow them to continue to rationalize the use of the substance.
The best example I can give you is when the nicotine patches came out in 1991, a year after that there were some heart attacks reported in people who were wearing the patch and happened to smoke at the same time. And we had patients, hundreds and probably thousands of patients across the country, because they were dependent on nicotine, trying to stop smoking, they would say, well gee, if it causes heart attacks if I use this, maybe I should stop using the patch as I continue to smoke. So that's a good example of rationalization. They -- they were concerned about the heart attack, but for the wrong reasons.
Q. Can you turn to Exhibit 20987. It would be in volume two.
A. Okay.
Q. This is a Tobacco Institute memorandum dated May 1st, 1972, from Fred Panzer, a vice-president for the tobacco industry, to Horace Kornegay, the president of The Tobacco Institute.
Have you reviewed this document?
A. I have.
Q. And is it one of the documents that forms a part of the basis of your opinion?
A. It does.
Q. And were the subject matters that were dealt with in this document also present in other of the defense documents that you reviewed?
A. Yes.
MR. CIRESI: Your Honor, we would offer Exhibit 20987.
MR. BERNICK: No objection to the introduction of the document, Your Honor. I have an objection to the expertise of this witness. I don't think an adequate foundation has been laid to establish his expertise with regard to consumer behavior and the perceptions of consumers, and we also think -- we think it falls outside of the scope of the expertise that has been covered by his report.
THE COURT: Court will receive 20987.
BY MR. CIRESI:
Q. First of all, we see the date is May 1, 1972, and I want to deal with the -- first the general comments. The subject of this is "The Roper Proposal," proposal made by a consultant to The Tobacco Institute.
"It is my strong belief that we now have an opportunity to take the initiative in the cigarette controversy, and start to turn it around.
"For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts -- litigation, politics, and public opinion.
"While the strategy was brilliantly conceived and executed over the years helping us to win important battles, it is only fair to say that it is not -- nor was it intended to be -- a vehicle for victory. On the contrary, it has always been a holding strategy, consisting of," one, "creating doubt about the health charge without actually denying it."
Now doctor, this is 1972 and it's referring to almost 20 years ago, which would be 1952. The Frank Statement, which is Exhibit 30210, in 1954, and specifically January 4th of 1954, made the following statement: "We accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business.
"We always have and always will cooperate closely with those whose task it is to safeguard the public health."
Now this statement was made right after the mouse-painting experiments; correct?
MR. BERNICK: Your Honor, I object to the form of the question. There was a recital that pertained to the prior document, there was then a recital from this document and then another question, so I think the question is objectionable on the grounds of form.
We also continue to object to this line of examination through this witness. We seek the opportunity to conduct voir dire in order to establish that it lies beyond the scope of his expertise. We also think it invades the province of the jury. And I understand that Your Honor ruled on the document, but I'm now objecting to the line of questioning.
THE COURT: Objection overruled.
MR. BERNICK: Can I have a --
THE COURT: Objection overruled.
MR. BERNICK: A request --
THE COURT: Please be seated, counsel.
BY MR. CIRESI:
Q. Now sir, that statement was made almost 20 years before this document, 20987; correct?
A. Yes.
Q. Okay. And in this document, 20987, The Tobacco Institute states that their policy was to create doubt about the health charge without actually denying it.
Now from your review of the defendants' documents in this case, did you find that that was their policy?
A. Absolutely.
MR. BERNICK: Your Honor, can I have a continuing objection to this line of questioning so I don't have to keep on standing up and make it?
THE COURT: Yes, you may.
MR. BERNICK: Thank you.
BY MR. CIRESI:
Q. And can you turn over to the next page of this document where it says "THE STRATEGIC IMPASSE."
A. Yes.
Q. "As an industry, therefore, we are committed to an ill-defined middle ground which is articulated by variations on the theme that, quote, the case is not proved."
Did your review of the defendants' documents in this case show that that was their theme, carried out by them since 1954?
A. Yes.
Q. And finally, the second-to-the-last paragraph under "THE STRATEGIC IMPASSE." "In the cigarette controversy, the public -- especially those who are present and potential supporters (e.g. tobacco state congressmen and heavy smokers) -- must perceive, understand, and believe in evidence to sustain their opinions that smoking may not be the causal factor."
Now, was there evidence in the documents you reviewed that as early as 1958 the industry knew that there was almost universal agreement that smoking caused lung cancer?
A. Yes, there is.
Q. Can you turn to Exhibit 11028.
A. Say that again.
Q. 11028, which would be in volume one.
A. Volume one. Okay.
Q. This is a report on a visit to the United States and Canada, April 17th to May 12th, 1958, report prepared by three scientists of BATCo, Ltd., Mr. Bentley, B-e-n-t-l-e-y, Mr. Felton, F-e-l-t-o-n, and Mr. Reid, R-e-i-d.
Have you reviewed this document, sir?
A. I have.
Q. Is this one of the documents that forms a part of the basis of your opinions in this case?
A. Yes, it is.
Q. Is it consistent with the other documents you reviewed with regard to the subject matters that you're testifying about here in court?
A. Yes, it is.
MR. CIRESI: Your Honor, we would offer Exhibit 11028.
MR. BERNICK: Your Honor, we have an objection to this document. This document actually was authored by three individuals, the lead author, I believe, was at the time an employee of the Imperial Tobacco Corporation.
THE COURT: Counsel, state -- state your legal objection.
MR. BERNICK: Okay. We think that it is hearsay and contains hearsay, Your Honor.
THE COURT: Counsel, can you lay more foundation for this exhibit, please.
BY MR. CIRESI:
Q. Is it indicated on the bottom that it's a BATCo, Ltd., Minnesota tobacco litigation?
A. Yes, it does.
MR. CIRESI: Your Honor, this is being offered under 803(6), 803(16), ancient document, and 801(d)(2), admissions by party opponents, and 801(e), admissions by co-conspirators.
THE COURT: Yes, counsel.
MR. BERNICK: It was produced by BATCo, but that does not establish that it was generated in the ordinary course of business by BATCo. The ancient records exception, even were it to apply, still would not take care of the second layer of hearsay in that it reports hearsay statements; it simply establishes that the document itself is not hearsay. This has hearsay within hearsay, Your Honor.
THE COURT: Court will receive 11028.
BY MR. CIRESI:
Q. Put the title page up, please. Thank you.
Title page is entitled "REPORT ON VISIT TO U.S.A. AND CANADA," 17th of April to 12th May 1958," by
H. R. Bentley,
D. G.
I. Felton, and
W. W. Reid. On the bottom, shows it was produced by B.A.T. Company, Ltd. out of their files, in the Minnesota tobacco litigation.
First of all, doctor, does the first page of the document list the itinerary of those individuals who went to the United States and Canada to seek certain information?
A. Yes, from April the 17th through the middle of May looks like.
Q. And I'd like to just review some of those with you. First of all they visited American Tobacco Company in Richmond; correct?
A. Correct.
Q. One of those individuals was Mr. H. R. Hamer or Harmer, H-a -- I believe it's Hamer, H-a-m-e-r; correct?
A. That's what it says.
Q. And Dr. Harlan?
A. Correct.
Q. And Mr. Harlow?
A. Right.
Q. He also visited the Medical College of Virginia?
A. Yes.
Q. Richmond, Virginia.
Duke University. Liggett & Myers. And they visited with Mr. Darkis, D-a-r-k-i-s, and -- I should say Dr. Darkis, excuse me, and Dr. Bates at Liggett & Myers; correct?
A. Correct.
Q. They also visited Richmond -- in Richmond, Virginia, Philip Morris, with Mr. Seligman, S-e-l-i-g-m-a-n, and Mr. O'Keefe.
A. Yes.
Q. They visited with three individuals -- or two individuals in New York at The Tobacco Institute Research Committee, a Mr. Hoyt and a Mr. Carl Thomson from Hill & Knowlton.
A. Yes.
Q. They visited the Roswell Park Memorial Institute in Buffalo, Yale University, the Biological Research Institute in Cambridge, the Roscoe Jackson Laboratory in Bar Harbor, the Industry Technical Committee of The Tobacco Institute Research Committee in Richmond, and the individuals they met with Mr., Mr. Mr. Hanmer, the chairman, Mr. Hoyt and Dr. Hockett. They visited the National Cancer Institute in Bethesda, Maryland. They visited Johns Hopkins Hospital in Baltimore, the New York University in New York. They visited the TIRC, Tobacco Institute Research Committee, in New York and met with its Scientific Advisory Board chairman, Clarence Cook Little and Dr. Hockett. They met with individuals at the Sloan-Kettering Cancer Institute in New York, and they also met with the Scientific Advisory Board of the TIRC in New York, and they met in Montreal with Dr. Wright at the University of Toronto.
Now if you can turn to the second page, sir, does it list there the information they were seeking?
A. Yes, it does.
Q. I'd like to direct your attention to just two of those issues. Number one, first, "the extent to which is it -- it is accepted that cigarette smoke causes lung cancer."
Now again, the date of this is 1958; correct?
A. Correct.
Q. Fourteen years before that Tobacco Institute document we just looked at; am I right?
A. Correct.
Q. Direct your attention to "'CAUSATION' OF LUNG CANCER" on this page one.
"With one exception (H.S.N. Greene)" -- I believe he was from Yale University -- "the individuals whom we met believed that smoking causes lung cancer if by 'causation' we mean any chain of events which leads finally to lung cancer and which involves smoking as an indispensable link. In the U.S.A. only Berkson, apparently, is now prepared to doubt the statistical evidence and his reasoning is nowhere thought to be sound."
Now I think Mr. Berkson was mentioned by one of the lawyers -- or Dr. Berkson, excuse me, one of the lawyers in their opening statements. He used to be at the Mayo Clinic?
A. That's correct.
Q. What was his field of specialty?
A. He was an epidemiologist, actually probably before the whole field developed. He did statistics and epidemiology.
Q. Okay. Thank you.
They then below that reference Mr. -- or Dr. Greene from Yale, and they state the following about Dr. Greene. This is the third paragraph: "Greene of Yale still says that his repeated failure to produce carcinoma by implanting lung tissue along with tobacco smoke condensate into the muscles of mice is conclusive evidence that smoke cannot cause lung cancer. His experiments were not done quantitatively, however, and on these grounds alone the conclusion which he draws is certainly not justified."
Now in the conclusions of this document, are there statements made by these individuals based upon their review of this issue with all of these individuals at these various medical institutions and with the defendants themselves, such as American Tobacco, Liggett & Myers, Philip Morris and the TIRC? Do they make conclusions?
A. Yes. It's on page eight.
Q. Go to page eight, please. And doctor, can you read conclusion one and conclusion three.
A. Conclusion one reads, "Although there remains some doubt as to the proportion of the total lung cancer mortality which can fairly be attributed to smoking, scientific opinion in the U.S.A. does not now seriously doubt that the statistical correlation is real and reflects a cause and effect relationship."
And then number three, "The direct carcinogenicity of smoke condensate to animal tissue, which is consistent with direct causation, is now fully confirmed but the evidence so far obtained makes it unlikely that this activity is due to any single 'super carcinogen' in smoke."
Q. Doctor, we saw earlier the 1994 congressional hearings in front of Representative Waxman where the seven executives lined up and denied that cigarette smoking was addictive. Do you recall that?
A. I recall that, yes.
Q. Was there also testimony at that hearing on behalf of the industry with regard to whether smoking causes disease?
A. There was.
Q. Okay. And this would be some 36 years after this document?
A. That's correct.
Q. Do you know if this document that we're presently on, Exhibit 11028, ever saw the light of day before this litigation?
A. Not to my knowledge.
Q. Can you turn to Exhibit 4700, which would be in the same volume.
A. Okay.
MR. CIRESI: Your Honor, we would offer Exhibit 4700. It's the hearings -- the transcript of the hearings before the Subcommittee on Health and the Environment of the Committee on Energy and Commerce, House of Representatives, 103rd Congress, Second Session, April 28th, May 17th and May 26th, 1994. It's a public record.
MR. BERNICK: Your Honor, I believe that the document is hearsay. The testimony was not taken pursuant to the rules, and I don't believe that the record reflects a foundation for this witness to be able to testify concerning this document.
THE COURT: Well I can't imagine Congress having a hearing that is only one page long.
MR. CIRESI: We have the entire document, Your Honor. Just so we didn't have to put it all in.
THE COURT: Are you going to be introducing the entire document?
MR. CIRESI: Yes, Your Honor. The exhibit number is the entire document.
THE COURT: Okay.
MR. BERNICK: Our objection then would certainly still stand. It contains numerous statements from numerous parties not subject to cross-examination.
THE COURT: It's a public record. It will be allowed, 4700.
BY MR. CIRESI:
Q. I'd like to go to page 375 where Mr. Glenn, the let of CTR, Council for Tobacco Research, testified as follows:
"Question: Do you believe that smoking causes cancer?
"No, sir.
"Do you believe that smoking is addictive?
"No, sir."
To this day, doctor, do you know if any of these defendants have ever publicly admitted that smoking causes lung cancer or any cancer?
A. Only the Liggett Group, I think, has admitted that.
Q. And that was since the institution of this lawsuit?
A. That's correct.
Q. Can you go back, now, to Exhibit 11028. In this document did the Liggett company make some comments to these industry representatives with respect to the Council for -- the CTR, which Mr. Glenn was the head of in 1994, but which was called the TIRC back in 1958, are there comments made by Liggett regarding that organization?
A. Yes.
Q. Can you direct your attention to page five.
A. Okay.
Q. And could you read into the record what Liggett & Myers told these industry representatives about TIRC in 1958.
A. It's kind of in the middle of the page, ATTITUDE OF U.S. INDUSTRY TO BIOLOGICAL TESTING" is the heading. "Liggett & Myers stayed out of TIRC originally because they doubted the sincerity of TIRC motives and believed that the organization was too unwieldly to work efficiently. They remain convinced their misgivings were justified. In their opinion TIRC has done little if anything constructive, the constantly reiterated "not proven" statements in the face of mounting contrary evidence has thoroughly discredited TIRC, and the SAB" -- that's the Scientific Advisory Board -- "of the TIRC is supporting almost without exception projects that are not related directly to smoking and lung cancer. Liggetts felt that the problem was sufficiently serious to justify large-scale investment by the Company directly in research" on their own.
Q. And in this Exhibit 11028, in 1958, do the industry representatives also talk about the marketing practices of the industry in America at that time?
A. Yes.
Q. Can you direct your attention to page eight.
A. Okay.
Q. Under "FILTRATION AND RELATED PROBLEMS." Do you see that?
A. Yes.
Q. I'd like you to go down to the paragraph starting with the word "Although...."
A. Okay.
Q. "Although TIRC officially still takes the view that 'causation' is not proven, in practice the industry in U.S.A. has found a good deal of common ground with the opposition. Unfortunately, however, this not taken the form -- this has taken the form of a highly undesirable competitive scramble for a cigarette with the smallest amount of smoke consistent with good flavor, paren, 'maximum filtration for the smoothest smoke', close paren, and advertising with implied health claims is in full cry."
What is being referred to there, sir?
A. Well it's the change so that if there are implied health claims about a cigarette, then for a person who is using the product, that reassures them. If -- so if there are health claims being made that a cigarette is safer or less hazardous, then the individual is reassured by that.
Q. In 1958, was the industry engaged in what became known as the tar derby because they were reducing tar in cigarettes?
A. Yes.
Q. When you reduce tar, do you reduce nicotine?
A. They go together. They go hand in hand.
Q. I'd like to now direct your attention to a document that came six months -- or excuse me.
I would like to now direct your attention to a document that came six years after the 1958 document.
A. Okay.
Q. If you could direct your attention to Exhibit 10322, a Philip Morris document dated February 18th, 1964.
A. Okay.
Q. This is a document on the stationery of Philip Morris Research Center, "SMOKING AND HEALTH, SIGNIFICANCE OF THE REPORT OF THE SURGEON GENERAL'S COMMITTEE TO PHILIP MORRIS INCORPORATED, EVALUATION REPORT."
Is this one of the documents that you reviewed, sir?
A. Yes, it is.
Q. And does it form part of the basis for your opinions in this case?
A. Yes, it does.
Q. Is the information contained in here information that was addressed in other of the defendants' documents that you reviewed?
A. Yes, it is.
Q. Can you direct your attention to the page which is typed that says "February 18, 1964."
MR. CIRESI: Your Honor, we would offer Exhibit 10322.
MR. BERNICK: No objection.
THE COURT: The court will receive 10322.
BY MR. CIRESI:
Q. Shows the date, the title of the report, "SMOKING AND HEALTH, SIGNIFICANCE OF THE REPORT OF THE SURGEON GENERAL'S COMMITTEE TO PHILIP MORRIS INCORPORATED," and then it shows a distribution list including Hugh Cullman, who was a senior executive, and also Dr. Wakeham, who we've heard from previously.
In this report, is there reference to the validity of the Surgeon General's report of 1964?
A. There is.
Q. And what was the major finding of the Surgeon General's report of 1964?
A. That cigarette smoking caused lung cancer.
Q. Can you direct your attention to the first page, which has a number of the top that says 567.
A. Yes.
Q. Okay. And the Bates number, last three, are 615.
A. Okay.
Q. "INTRODUCTION AND SUMMARY." And I'd like to direct your attention to the second paragraph.
"The onus of proof has been moved by the report" --
Which report is being referred to there?
A. The Surgeon General's report, the '64 report.
Q. -- "from its usual position with the industry's accusers to the tobacco industry itself. Meeting this challenge affords Philip Morris a splendid opportunity to gain a competitive edge through effective technical activity. Positive programs to cure ills cited in this report, whether real or alleged, are recommended, as little basis for disputing the findings at this time has appeared."
Now is this consistent with what the industry found out six years earlier when they did their own internal survey?
A. Yes.
Q. Can you turn to the next page.
Was there a recommendation in this report that due to the Surgeon General's report and competitive pressures, that the industry ought break up its common front?
A. Yes.
Q. Did the industry, based on your review of the documents, break up its common front in denying causation over the ensuing decades?
A. No.
Q. If you look at the bottom of this page two, states as follows, "Health impact will surely be an important, perhaps the most important, basis for competition in the industry in the next few years. Competitive pressures suggest a break up of the common front approach of the industry through TI and TIRC. While R. J. Reynolds continues to advocate a joint front, sit tight, status quo approach, paren, it has the most to lose from any change in status quo, close paren, others like American and Liggett and Myers, sanguine for improved competitive positions, show signs of bolting and have capitalized with their new products on early reactions to the report. The greater the long term market impact of the report, the more intense will there be health competition, which is to say technical competition, among major tobacco companies."
Now doctor, post-1964, did the defendants continue to reduce tar and nicotine?
A. They reduced the tar and nicotine deliveries, yes.
Q. And during that time did they make implied health claims about the cigarettes?
A. Yes, they did.
Q. During that period of time did they also investigate the nicotine technology?
A. Yes.
Q. And during that period of time were there advertisements with respect to the implied health claims that they were making?
A. Yes, there were.
Q. During that period of time did they -- from your review of the documents, did they continue to feed information to smokers which would serve to support the rationalization and denial that you've talked about?
A. Yes, they did.
Q. Can you direct your attention to Exhibit 11102.
A. Okay.
Q. This is a B.A.T/B&W document dated October 18th, 1979?
A. Correct.
Q. And it's produced by B.A.T. Company, Ltd.?
A. Yes.
Q. Is this one of the documents that you reviewed during the course of this litigation?
A. Yes, it is.
Q. Is it one of the documents that forms part of the basis of your opinion?
A. Yes, it is.
Q. And is it consistent with regard to the subject matters that the other documents you reviewed dealt with?
A. Very much so.
MR. CIRESI: Your Honor, we would offer Exhibit 11102.
MR. BERNICK: No objection.
THE COURT: Court will receive 11102.
BY MR. CIRESI:
Q. Now the title of this document is "CIGARETTE SMOKING, HEALTH, AND DISSONANCE (PROJECT LIBRA)." And you'll see a distribution list on the left-hand side there.
Can you direct your attention, first, to page 84 of this document.
A. Okay.
Q. And at that part of this report, is B.A.T and B&W dealing with the rationalization and health reassurance issues, doctor?
A. Yes, they are.
Q. And can you point out where that is?
A. Well it's really down in the -- "How does the smoker remain a smoker despite apparently good reasons for him to quit? One way of reducing the conflict" -- and that's the internal conflict for a smoker who may recognize that -- that they should quit, so -- "One way of reducing the conflict within the smoker is to deny, devalue or otherwise rationalize the health argument." And that fits into the addictive process of denial and rationalization.
Q. And it goes on to say that "The four modes of potential conflict reduction discussed so far rely on either a fatalistic disposition to health or a faith in 'safer' smoking, or a denial of anti-smoking information."
A. That's correct.
Q. And did you have an understanding of whether or not The Tobacco Institute's policy, as enunciated in that exhibit we saw, to create doubt, was that intended to create doubt in smokers to give them an ability to deny?
MR. BERNICK: Objection, Your Honor. I believe that that invades the province of the jury. There's not adequate foundation for him to speak to the intent of a statement.
THE COURT: You'll have to rephrase the question, counsel.
BY MR. CIRESI:
Q. Did The Tobacco Institute document reflect that the tobacco industry was attempting to create a controversy?
MR. BERNICK: Again, Your Honor, that is precisely the question the jury will have to decide.
THE COURT: No, that's a different question. You may answer that.
THE WITNESS: Would you repeat the question?
MR. CIRESI: Sure. Can you read it back, please.
(Record read by the court reporter.)
A. Yes, it did. And they were.
Q. And from your review of the documents of the various defendants, did you find that that is what they were doing during this period of time?
A. That's correct.
Q. And if you go to page 80 of this document, --
A. Okay.
Q. -- another term that you mentioned was "rationalization," and does this document reflects -- reflect B.A.T and B&W's understanding and knowledge of that conflict?
A. Yes, it does.
Q. Is that at the top of that page?
A. They use the term. They describe it very accurately. Rationalization through modifying smoking behavior is a feasible means of conflict reduction. When a person is using a drug and they know that it's possibly causing them harm and they continue to use the drug, that's part of the addictive process. So the way that a person overcomes that internal conflict is to rationalize that and to try to explain it away.
Q. And with regard to low tar/low nicotine, doctor, we've heard the term "compensation." Were the defendants aware of compensation of smokers in smoking low tar --
A. Yes, they were.
Q. -- low nicotine cigarettes?
A. Yes, they were.
Q. Did they take any action to exploit that conduct?
A. Absolutely.
Q. Okay. And how do you know this?
A. My patients tell me. If you ask the question: Why did you switch to low tar/low nicotine cigarette? They say they thought it was safer. That's how they do it.
Q. And did the defendants' own documents reflect that?
A. Yes, they did.
Q. Now when you're treating people in the Nicotine Dependence Clinic, do you do a demonstration for them on compensation?
A. Yes, we talk about it, because most of them don't understand it at all. They don't understand about low tar/low nicotine cigarettes.
Q. And does the demonstration have to do with the ventilation holes on the cigarette?
A. That's the most obvious thing that you can demonstrate to the patients.
Q. And do you have a pack of Marlboro Reds and Marlboro Lights and Merits with you?
A. I do.
Q. Okay. And can you demonstrate that for the ladies and gentlemen of the jury?
A. Sure can.
MR. CIRESI: Your Honor, could he step down to them?
THE COURT: You're not going to light it, are you, doctor?
THE WITNESS: No, sir. I'm even nervous about having them in my pocket actually.
Actually I want to draw first.
Can you see?
A. When we talk about the cigarette, we talk about the cigarette as a rod, and we've heard about the filtering mechanism of the rod. And how this all works is it burns on this end, and the gases are formed. Nicotine is in a liquid form to begin with and it is basically just distilled across the rod. As it -- as it burns it heats up, it volatizes, it becomes a gas, and then as it cools it becomes a droplet again, and then it comes out the end of the cigarette in the form of an aerosol, which is basically a tar particle. And I'll make a great big one. And on that tar particle, in the aerosol, is water and also nicotine. So it's a -- when you blow smoke out, smoke is an aerosol.
When the measurements are made with the Federal Trade Commission machines, it basically measures the air and gas mixture, smoke mixture that comes out of the end of the cigarette. And if you think about it as a billows mechanism, and this is the only way I can draw it, with the cigarette over here burning, and then the billows goes up and down but it goes up and down at the same inhalation every time, so it draws in a certain amount of smoke into -- into this chamber. And then the smoke, which I'll just depict like this, is taken out, and for simplistic purposes is run through a gauge or a certain measuring device to measure the tar and nicotine levels. And that's what's reported on the cartons of cigarettes and in the advertisements. This is the level that's reported.
One way of fooling the machine, if you will, is to reduce the concentration of these particles in the -- in the chamber. So if indeed this is a, quote, full-flavored cigarette, with that amount of -- of particles in there, that will measure a certain amount, and if you put a cigarette over here, a, quote, low tar/low nicotine cigarette, and the amount of particles that come in are more dilute, then when you do the measurement over here on this side, it will read much lower.
And so one way of doing that -- and there are multiple ways of doing it, but the most common way of doing it is to modify the cigarette in order for there to be more air to come in. And one way of doing that is to put ventilation holes on the filter. And so when you have ventilation holes on the filter, it entrains air into the stream and makes the smoke more dilute. So that you end up with this situation: more dilute smoke coming in, and the measurement is low.
Now the problem with this is that this is a machine. It takes a single puff in a certain volume every time. It also doesn't get emphysema and lung cancer, but -- and they use them over and over again, but it does it every -- every time the same way. But smokers don't smoke that way. Smokers compensate for this by taking deeper breaths and holding their breath longer so that they can extract a larger amount of nicotine from the cigarette than the machines can.
And one way of looking at that will be to look at some cigarettes and looking at the ventilation holes. So we'll start out with a Marlboro Red, which is a -- what I used to smoke. It doesn't say on here that it's a full-flavored cigarette, but I think that it probably is. It does say you get five miles if you buy a pack. I'm not sure what -- what that actually means.
So let's look at this cigarette and see what's in it. So I'll cut it this way, and of course you can see the tobacco, and then -- get a little light here -- and then you can see little holes. See the little holes?
Can you pass that around?
And that's a full-flavored cigarette.
And then if you look at a Marlboro light, which is a lower tar and nicotine cigarette, cut it apart -- and by the way, the tobacco in these two cigarettes is the same. Same tobacco. No difference in the tobacco. And that's the thing that the patients don't understand at all. They think that something's been done to the tobacco, but the tobacco in the Marlboro Light and the regular Marlboro is the same.
And so for this one, you can kind of compare the differences, because instead of one layer -- one row of holes, this one has two rows of holes. More ventilation.
And then if you go to one that says the low tar enriched flavor, I'm not exactly sure what that means, but lower tar delivery in this scheme of things, and this is a Merit, and so this one has two rows of holes, but they're more obvious, aren't they? They're much larger.
So if you put them all together -- I don't know where the other light went -- but if you put them all together, then -- then you can identify the holes.
Let me get the light and I'll show Your Honor. Would you like to see these, Your Honor?
THE COURT: When they're finished.
THE WITNESS: Okay.
A. So the Merit has bigger holes, same general vicinity, two rows.
When I did this demonstration to a group of patients, oh, couple weeks ago, the patients are always a little bit embarrassed to say that they have cigarettes with them, so I usually just ask do you have any cigarettes with you, because they're using the process of trying to stop when they have a group program, and one gentleman had a package of Kent III, Roman numeral III, which is an ultralight, and it had six rows of ventilation holes. So he was getting a lot of air mixed in, but he was able to compensate for that by taking deeper breaths, holding his breath longer, and able to get nicotine.
This is the Marlboro, and then -- it's one little thin line of holes. See it?
I'll clean this mess up later.
THE COURT: Maybe we should take a short recess and allow the doctor to clean up the mess.
THE WITNESS: Thank you.
(Recess taken.)
THE CLERK: All rise. Court is again in session.
(Jury enters the courtroom.)
THE CLERK: Please be seated.
MR. CIRESI: Your Honor, we'd offer trial Exhibit 30252, 30112. The first exhibit is a box of Marlboro Lights, second Marlboro Reds, Exhibit 30114, which is a box of Merit, and Exhibits 25005 and 25006, the last two for illustrative purposes, they are the handwritten notes on the write board.
MR. BERNICK: No objection, Your Honor.
THE COURT: Court will receive those as exhibits.
BY MR. CIRESI:
Q. Doctor, if we could for one minute before we go on on this issue, I'd like to go back to Exhibit 11938, which is in volume one. It's the B.A.T 1962 document.
A. Okay.
Q. As you'll recall, this was the document that was dealing with the various proposed projects, MAD HATTER I, MAD HATTER II, et cetera.
A. Yes.
Q. And if you turn to page nine of that document, with regard to BATCo's state of knowledge with regard to nicotine and research into nicotine vis-a-vis knowledge that was in the scientific literature back at that time, and does the author of this report state what the status of BATCo's knowledge is?
A. They did. First -- first paragraph on the screen.
Q. "As a result of these various researches we now possess a knowledge of the effects of nicotine far more extensive than exists in published scientific literature. It is indeed so extensive and represents so much new thought that it is not easy to condense the material of these several reports and working papers without the risk of over-simplification."
Doctor, when you looked at the defendants' documents, did you find, as a person who has been trained in this field, new information regarding nicotine and its addictive qualities?
A. I did.
Q. If we could go back, then, to the lower tar/ lower nicotine cigarettes, approximately what percentage of people smoke those type of cigarettes?
A. I think the vast majority, it's over 80 percent in the current environment, smoke low tar/low nicotine cigarettes.
Q. Have the lung cancer rates gone down since low tar and low nicotine came on the market?
A. No, they have not.
Q. I'd like to now direct your attention to the defendants' knowledge with respect to low tar and low nicotine, specifically with regard to smokers' use of those types of cigarettes.
A. Okay.
Q. Can you direct your attention to Exhibit 11889. And this is a document that's been introduced into evidence. It's a Philip Morris document, the cigarette consumer of March 20th, 1984.
A. 11899?
Q. It's 11899.
A. Okay.
Q. And in that document, can you turn to page ten. Does Philip Morris reflect there what people think with regard to safety of low tar/low nicotine based on their own research?
A. They do.
Q. And if we look at the lower part of that page, it states, "Historically, motivation has come from health issue, people willing to stick with lower tar because they are doing themselves a favor, most successful new brands have had low tar/health motivation, colon, Merit."
Is that the type of information that you saw in the defendants' documents as you reviewed them?
A. It is. Yes, it is.
Q. If you go to Exhibit 17994, which is a Lorillard document dealing with this subject matter, and that would be in volume two -- 17994.
A. Okay.
Q. The title of that document is "SHF CIGARETTE MARKETPLACE, OPPORTUNITIES SEARCH AND SITUATION ANALYSIS, VOLUME II, Management Report" for Lorillard, December 1976. Is this one of the documents you've reviewed?
A. Yes, it is.
Q. Does it form part of the basis of your opinions in this case?
A. Yes, it does.
Q. Is it the type of information that you found in other documents of the defendants that you were reviewing?
A. Yes, it is.
MR. CIRESI: Your Honor, we would offer Exhibit 17994.
MR. BERNICK: No objection.
THE COURT: Court will receive 17994.
BY MR. CIRESI:
Q. On the title page, doctor, it says "SHF CIGARETTE MARKETPLACE."
A. Yes.
Q. Is SHF super high filtration?
A. That's correct.
Q. If you could, please, would you turn to page seven first.
A. Okay.
Q. And this deals with low tar and nicotine cigarettes.
A. Yes.
Q. And first of all I'd like to direct your attention to the first part. "What is tar? What is nicotine?
"When separately discussed, nicotine is usually defined as a chemical or an addictive drug; tar is seen as a thick, gooey residue.
"Most smokers, however, do not really understand what tar and nicotine are, or the difference between the two. 'Tar and nicotine' is a term commonly used as a single word."
Is that consistent with what you found in your clinical experience?
A. It is.
Q. And when we go down to the "Advantages and Disadvantages of Low Tar and Nicotine Cigarettes," do you find in your own clinical experience that people believe that cigarettes low in tar and nicotine have different tobacco ingredients or different kinds of filters than other cigarettes?
A. Yes, but most common they think it's something that's been done to the tobacco to remove all the harm -- all the chemicals or the substances that might cause harm. That's -- they publish along that.
Q. Do the people that come into your clinic, and those who smoke low tar and nicotine cigarettes, generally do so because they believe such cigarettes are better for them?
A. They believe they're safer, yes.
Q. And if we go to the "KEY HIGHLIGHTS" of this research project on behalf of Lorillard, this is on page two.
A. Okay.
Q. And I'd like to direct your attention to number two and ask you if that's consistent with what you heard from people that come into the Mayo nicotine clinic.
A. Yes, it is. Health concerns are their usual reason for switching to a low tar and low nicotine cigarette. They think that they're safer.
Q. Can you turn now to a B.A.T document in 1977, which is Exhibits 10584 and 10585. 10584 is the cover letter. That would be in volume one.
A. Okay.
Q. Are these two documents that you reviewed in order to prepare yourself to testify?
A. Yes, they are.
Q. And do they form part of the basis of your opinion?
A. They do.
Q. And are they consistent with the other documents that you reviewed with regard to the subject matters that are discussed therein?
A. Yes, they are.
MR. CIRESI: Your Honor, we would offer Exhibit 10584 and 10585, which is the cover letter and the document itself, of B.A.T in 1977.
MR. BERNICK: No objection.
THE COURT: The court will receive 10584 and 10585.
BY MR. CIRESI:
Q. 10584, first of all, is dated April 28th, 1977, has a "RESTRICTED" notation on it, and it indicates that in the first paragraph that it had been approved BY MR. Sheehy, who was the chairman of BATCo. And it is written by
M. L. Short, who is -- excuse me,
P. L. Short, who's the marketing manager of BATCo.
If you turn, then, to the document itself, which is the next exhibit, the title of the exhibit is "SMOKING AND HEALTH, ITEM 7 : THE EFFECT ON MARKETING." And in the first paragraph we see that this was a senior marketing conference, "Marketing in the '80s," held at Chelwood in October 1976 and attended by the No. 1s and marketing directors from North America, Australia, Europe and Brazil.
Do you see the term No. 1s a lot in the documents, doctor?
A. Yes.
Q. Do you know what that refers to?
A. I think it's the presidents or the CEOs.
Q. And if you go down to "Future Prospects," does that document reflect BATCo's position that their overall marketing policy was to maintain faith and confidence in the smoking habit, whether brand choice is in traditional or not in particular markets?
A. That's what it says.
Q. And was this consistent with the type of information you saw in the other defendants' documents during the course of your review?
A. It is.
Q. And we see in the same paragraph a strategy that B.A.T tends to employ. "This means that B.A.T will not remain on the defensive, by simply reacting to alleged 'health' hazards and related competitive challenges: instead, we will actively seek out all worthwhile prospects for brand and product reassurance in marketing throughout the world."
Now the term "product reassurance," did you learn that had a significant meaning to the defendants regarding their --
A. It's kind of what we talked about as reassuring the consumer as far as the health risks are concerned, to make a product that -- that appeared to be safer and to market that in a way that they describe here. It's an overall marketing policy.
Q. And in this document, did B.A.T project out into the future with respect to the number of smokers who might be moving to the low tar category?
A. Yes. I believe they said something like over 80 percent by the early 1990s. I can't find the exact spot.
Q. Can you go to page two, please.
A. Okay. Yes, "For example, in the U.S.A., it has been forecast that by 1990 over 80 percent of the brands will be in the low tar category."
Q. Now if you direct your attention, please, to page three of this document, does this part of the document, which relates to communication, also relate to providing consumer reassurance?
A. Yes. That's the word that's underlined at the very top. Emphasized.
Q. Let me read this. "All work in this area should be directed towards providing consumer reassurance about cigarettes and the smoking habit. This can be provided in different ways, e.g. by claimed low deliveries, by the perception of low deliveries and by the perception of 'mildness'. Furthermore, advertising for low delivery or traditional brands should be constructed in ways so as not to provoke anxiety about health, but to alleviate it, and enable the smoker to feel assured about the habit and confident in maintaining it over time."
Now doctor, on that type of approach and philosophy, was that reflected in the defendants' documents that you reviewed?
A. Yes. Over and over again. Another euphemism for this is health reassurance.
Q. And under the "Goodwill" section it states that "In the first place, the goodwill of existing brands must be maintained by a planned approach to reduced deliveries, via research and product development. Here, we should (a) seek to obtain the edge over competitors (b) ensure that smoking satisfaction is achieved by franchise smokers within the range of smoker 'compensation' of the original product."
What's being discussed there?
A. Well it's basically a range of -- the addiction range, if you want to think about it that way, where there is a level of nicotine delivery that's required to keep a person using the product. So there's kind of a window, if you will, and the products that they design or have designed over the years have focused