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11 MR. TILLERY: Our first witness today is

12 Robert Cialdini.

13 (Witness sworn)

14 ROBERT CIALDINI, called as a witness on behalf of the

15 Plaintiffs, being first duly sworn, was examined and

16 testified as follows:

17 DIRECT EXAMINATION

18 BY MR. TILLERY:

19 Q. Would you state your name, please.

20 A. My name is Robert Cialdini.

21 Q. Where do you live, sir?

22 A. I live in Phoenix, Arizona.

23 Q. What is your occupation?

24 A. I'm a professor of psychology at Arizona






 13




1 State University.

2 Q. Do you have a title there?

3 A. I'm Regents' Professor of Psychology.

4 Q. What does that mean?

5 A. It's a designation that is given to

6 certain faculty members on the faculty of the -- all

7 of the universities in the state to indicate special

8 international contributions and recognition in their

9 field.

10 Q. How long have you been a Regents' -- or

11 the Regents' Professor at Arizona State University?

12 A. I believe it was in '89 that I was given

13 that designation.

14 Q. Okay. Could you tell the Court about

15 your educational background, Dr. Cialdini?

16 A. I was educated in psychology at the

17 University of Wisconsin, the University of North

18 Carolina, and at Columbia University.

19 Q. And how far has your education

20 progressed?

21 A. I'm a Ph.D. in social psychology.

22 Q. Okay. And what is that field?

23 A. Social psychology really focusses on the

24 reasons and the forms of everyday human behavior.






 14




1 Q. And could you tell the Court about your

2 professional experience since you've graduated from

3 school and what you've been doing.

4 A. Well, I -- after -- my first position was

5 at Arizona State University.

6 Q. Right.

7 A. Back in 1971. Since then I've taught at

8 the Annenberg School of Communications at the

9 University of Southern California, at the Stanford

10 Business School, at the Stanford Department of

11 Psychology, and at the University of California at

12 Santa Cruz.

13 Q. When you say you've taught at Standord

14 University in both the psychology department and the

15 business school, could you explain how you've taught

16 at both of those schools.

17 A. Yeah. In different leaves of absence

18 from my university I was invited to Stanford to teach

19 in their psychology department -- I'm a psychologist

20 by training -- initially. Another visit I was invited

21 by the business school to give a graduate course in

22 marketing to their MBA's.

23 Q. And I'm going to get into this in a bit,

24 but do you have a particular field of interest?






 15




1 A. It is. I mean, inside the general topic

2 of social psychology, I'm interested in the study of

3 persuasion and social influence, especially as they

4 regard -- as they reflect on consumer persuasion and

5 influence decisions.

6 Q. All right. Were you the past president

7 of the Division of Personality and Social Psychology

8 of the American Psychological Association?

9 A. Yes.

10 Q. What's that mean?

11 A. I was elected to be the president of the

12 division of all personality and social psychologists

13 within the American Psychological Association, which

14 is the largest association of psychologists in the

15 world.

16 Q. Were you the recipient of the

17 Distinguished Scientific Achievement Award of The

18 Society of Consumer Psychology in 2000?

19 A. Yes.

20 Q. What is the significance of that, if you

21 could just explain that to the Court.

22 A. That's an award given to individuals for

23 life-long contributions to the discipline of consumer

24 psychology.






 16




1 Q. Now, since you've been at Arizona State

2 University, could you explain the type of courses that

3 you've taught and the responsibilities you've had

4 there in terms of the graduate program.

5 A. The type of courses, of course I teach at

6 the undergraduate level the course called Social

7 Psychology, which again is a broad examination of the

8 factors that influence everyday social behavior. I

9 teach specialty courses on attitude change, social

10 influence, interpersonal influence -- those factors

11 that incline people to change their mind, change their

12 behaviors as a result of a communication that we give

13 them. And so, we study the character of the

14 communication that's most likely to be successful in

15 causing people to change their beliefs, attitudes, or

16 actions.

17 Q. Now, have you been the director of the

18 graduate program of Social Psychology?

19 A. I have, yes.

20 Q. Do you have that position today?

21 A. No.

22 Q. When did you -- you take -- you handle

23 graduate students and Ph.D. students at this point?

24 A. Yes. I train -- I'm currently training






 17




1 five Ph.D. students.

2 Q. Explain that to the Court, the

3 responsibility you have when you are training Ph.D.

4 candidates.

5 A. A student who comes out of the under-

6 graduate experience comes to graduate school with the

7 idea of becoming a professional social psychologist,

8 someone who can do high level research and teaching in

9 the domain of social psychology. Those students who

10 want to learn especially about those aspects of social

11 psychology that have to do with my specialty,

12 persuasion, come to work with me to get that training

13 and get a Ph.D. in the process.

14 Q. Were you a member of the Board of

15 Consulting Editors of Basic and Applied Social

16 Psychology?

17 A. Yes. I still am.

18 Q. Okay. And tell the Court what that

19 involves.

20 A. That would be a peer reviewer of

21 manuscripts that have been sent by people who have

22 done research in basic and applied social psychology.

23 They send it to this journal, and the editor of the

24 journal will send it to members of their consulting






 18




1 Board who they think are expert in this topic to

2 decide whether this report of research is good enough

3 to warrant being published in the journal. And so, I

4 would make a decision based on the quality of the

5 work.

6 Q. And have you been one of the member of

7 the Board of Directors of the Society for the Study of

8 Social Influence?

9 A. Yes.

10 Q. And could you explain that as well.

11 A. That's a group of social scientists who

12 are particularly focussed and dedicated to the study

13 of the social influence process.

14 Q. You said that you're a peer reviewer and

15 that you review these submitted articles. Does that

16 place you in a position of reviewing the most recent

17 literature in terms of this field of social

18 psychology?

19 A. It does. It gives me access to the

20 cutting edge work, the work that isn't even published

21 yet, but it's about to be published. That's one thing

22 it does. The other thing it does is to give me the

23 responsibility of deciding which things should be

24 published, which things should contribute to our






 19




1 published body of evidence.

2 Q. Are you past associate editor of the

3 Journal of Personality and Social Psychology?

4 A. Yes.

5 Q. Now, I want to go over a couple of

6 publications of yours, one entitled Social Psychology,

7 Unraveling the Mysteries. Could you explain to the

8 Court what that is.

9 A. That's a textbook written for under

10 graduates who take social psychology as a semester-

11 long course. And they will use our book to provide a

12 guide to all of the facets of social psychology, all

13 of the forms of everyday social behavior that the

14 discipline studies. So, that's kind of a broad look

15 at that whole discipline of social psychology.

16 Q. And are you also the author of a book

17 called Influence: Science and Practice?

18 A. Yes, I am.

19 Q. And what is that book about?

20 A. That's a more specialized investigation

21 focussed on my interest in influence and persuasion.

22 And the subtitle then offers another hint about it.

23 It says Science and Practice. It's about the science,

24 what we've learned scientifically about what causes






 20




1 people to say yes to requests to change their minds,

2 and then how this is used in practice by

3 practicioners, marketers, advertisers, fund raisers,

4 so on.

5 Q. Is the book widely adopted as a teaching

6 text?

7 A. It's adopted in over 300 universities'

8 required reading.

9 Q. And what type of classes require it?

10 A. Well, the majority in psychology courses,

11 but I'm heartened by the extent to which that it -- it

12 is also required in courses on communication, in

13 business schools, law schools. It's required at the

14 Stanford Business School, at the Harvard Law School,

15 at the Stanford Law School.

16 Q. The book that you wrote?

17 A. Yes.

18 Q. All right. And what about businesses

19 outside -- taking you outside of the academic

20 setting? Do businesses use your book?

21 A. Businesses do use my book. In fact, many

22 of the sales occur from corporate groups who decide

23 that knowing about persuasion and how it works would

24 be beneficial for their managers or their marketers,






 21




1 and so they will buy lots of the book and distribute

2 it to all of their people.

3 Q. Now, we haven't really gotten into your

4 research about influence, the science of influence or

5 persuasion, but you've talked about sort of a

6 university setting at this point. Have you taken

7 these ideas or been asked to take these ideas and

8 speak to the business community around the country?

9 A. Yes, I have.

10 Q. Explain that to the Court.

11 A. Well, frequently at conferences or

12 conventions or sometimes at sales meetings or

13 marketing meetings within a corporation they need

14 speakers. They need people who come in to educate

15 their employees about the cutting edge work that's

16 being done in an area that's of relevance to the job

17 responsibilities of their employees. And so, they

18 will ask me to come and tell them about the newest

19 research and my conclusions about what it is that they

20 should know to optimize their efforts in persuading

21 and influencing.

22 Q. I want to go through some other

23 publications, and not all of yours obviously, but some

24 of those that touch upon the subject of influence and






 22




1 persuasion. Have you written about The Science of

2 Persuasion published in Scientific American?

3 A. That's a -- that's a good question,

4 because it really has to do with an audience that --

5 the audience to the magazine Scientific American,

6 which is typically hard scientists, physical

7 scientists, but who want to know about social science

8 as well as long as it's done in a scientific

9 experimentally rigorous controlled fashion. So, the

10 editors asked me to speak about my knowledge of the

11 persuasion process to their audience of scientists.

12 Q. And what about Harnessing the Science of

13 Persuasion in the Harvard Business Review? Did you

14 write that?

15 A. Yes, I did. So, if you remember, the

16 title of the earlier article for Scientific American

17 was The Science of Persuasion. Now the Harvard

18 Business Review wants me to speak to its readership

19 about harnessing the power of persuasion, making it

20 practical, making it Let's see what the actionable

21 implications are of knowing this. Can I speak to

22 their readership, which tend to be leaders in

23 business.

24 Q. And also have you written Human Behavior






 23




1 in the Marketplace?

2 A. Yes.

3 Q. And Principles and Techniques of Social

4 Influence?

5 A. Yes.

6 Q. Interpersonal Influence?

7 A. Yes.

8 Q. Now, I want to ask you in particular

9 about a book that you've written, and I want you to

10 explain the research that you did. There's been three

11 editions of your book called Influence: The

12 Psychology of Persuasion, is that correct?

13 A. Yes.

14 Q. That first was published in 1984, and

15 then again in 1989 and 1993?

16 A. Yes.

17 Q. Tell the judge what that book is about.

18 A. That book is about the results of a

19 research project I did for about two and a half

20 years. I'm something of a pragmatist. I'm not just

21 an academic, because I don't want to stay located in

22 my university and just think about the theory of

23 influence. I really want to talk about the practice

24 of influence. And it seemed to me to learn about that






 24




1 I needed to get beyond my university setting into the

2 environment, the business environment, where influence

3 wars are being fought every day after all.

4 Q. How did you go about doing that?

5 A. I began to -- I recognized that there

6 were professionals that whose business it is to get

7 others to say yes to them. To be successful they had

8 to use effective strategies of influence. Sales

9 people, marketers, advertisers, fund raisers,

10 recruiters, lobbiests, so on. So, what I did was to

11 enter the training programs of as many of these

12 professions and learn from the inside what the pros

13 were telling their recruits This works for us, This

14 gets people to say yes to us. So, I looked at all of

15 that information, and I tried to draw from it some

16 overall conclusions about the universals of influence

17 -- which were the things that worked to get people to

18 say yes wherever they were employed.

19 Q. Well, more specifically, give the judge

20 some of the -- an idea of some of the things you did

21 in order to understand those principles.

22 A. Well, so I took training in selling

23 cars. I learned how to sell cars. I learned how to

24 sell vacuum cleaners door-to-door. I learned how to






 25




1 sell portrait photography over the phone. I was the

2 guy from Olin Mills. I was that guy. I also -- I

3 also learned how to sell insurance. But, I didn't

4 stop at just sales. I also looked at how fundraisers

5 are trained to get people to say yes to a request for

6 a donation. I looked at what advertisers are trained

7 to do to load into their advertising copy the most

8 effective strategies for getting movement in the

9 direction of their products. I -- I interviewed

10 recruiters on -- Service recruiters. What do they do

11 to get kids to sign on this line and give away two to

12 three years of their life? What do they do that's

13 most effective? I even interviewed cult recruits.

14 Q. You didn't interview Hare Krishas, did

15 you?

16 A. I stayed away from getting in, but I

17 interviewed them. I was worried about getting in.

18 Q. All right. So, and then with all of that

19 information, you took all of that, and that became a

20 basis for your book Influence: The Psychology of

21 Persuasion?

22 A. That's correct.

23 Q. Has it been -- this topic, has it been a

24 professional pursuit, a professional interest for you






 26




1 throughout your career?

2 A. For 30 years.

3 Q. Let's go through just a couple of more,

4 and then we'll talk about why you're here today.

5 A. Fine.

6 Q. All right. You've written about

7 Understanding the Decision -- excuse me. You've

8 written Consumers as Targets of Personal Influence

9 Tactics in 1990; Psychology of Influence in different

10 texts; Persuasion Principles, 1985; Principles of

11 Automatic Influence -- a number of texts, articles,

12 chapters, books on influence, haven't you, sir?

13 A. Yes.

14 Q. All right. What have you been asked to

15 do in connection with this lawsuit?

16 A. I've been asked to analyze the language

17 that was employed on the packages of Marlboro Lights

18 and Cambridge Lights as to the effect of that language

19 on consumers who would be exposed to it.

20 Q. So, you see the big blow-up exhibit of

21 Marlboro Lights, looking at the language of that

22 package and try to --

23 A. Yes.

24 Q. -- assess its impact?






 27




1 A. That's correct.

2 Q. Did you also review some internal

3 documents of Philip Morris and their strategy for

4 developing and marketing light cigarettes?

5 A. Yes.

6 Q. And have you reviewed reports,

7 declarations of other expert witnesses in the case?

8 A. Yes.

9 Q. And you've reviewed some depositions of

10 class members, haven't you?

11 A. Those as well.

12 Q. Let's focus on the language that you

13 found pertinent to this evaluation. What was it that

14 you determined the words light and lower tar and

15 nicotine on the Marlboro Lights packages and the word

16 light on the Cambridge Lights packages would mean to

17 the consumers, to the smokers of those cigarettes?

18 A. I determined that they would mean health

19 -- more healthy, less hazardous.

20 Q. Why do you believe that?


4 Q. Just as a matter of you not to direct

5 your attention to an objection, but he raises this

6 point, and I wanted to cover this. It reminded me of

7 something. You know that this case involves people

8 who purchased these cigarettes, the two that you

9 referenced, Cambridge Lights and Marlboro Lights, in

10 the state of Illinois?

11 A. Yes, I do know that.

12 Q. All right. From the standpoint of the

13 issues that you're going to speak about, that's

14 persuasion and influence, basically I've asked you to

15 look at this and to look at these packages, the word

16 lights and the word lower tar and nicotine, and to

17 speak to the Court about what the meaning would be to

18 a consumer. Isn't that what you're doing here?

19 A. Yes.

20 Q. All right. Do you have any reason to

21 believe that the people who bought these cigarettes in

22 the state of Illinois are somehow influenced by

23 difference psychological principles of influence or

24 persuasion in a different manner so that they would






 29




1 react differently or receive information differently

2 here than they would 50 miles or 100 or 500 or 1000

3 miles away?


18 Q. Can you answer my question, sir?

19 A. Very clearly. I know of no evidence to

20 suggest that the members of this class would be

21 psychologically different from other individuals,

22 comparable individuals, elsewhere.

23 Q. And when you say psychologically

24 different -- I want to make sure that we've covered






 30




1 this point -- does that mean in terms of their

2 susceptiblity to influencing statements or comments on

3 the package of cigarettes?

4 A. That's precisely it, yes.

5 Q. You told me that you thought that the

6 words light or lower tar and nicotine, the connotation

7 of health to the people who bought them here in this

8 state, right?

9 A. Yes.

10 Q. Why do you believe that?

11 A. Well, if we look back at some of the

12 evidence from when light brand cigarettes were

13 initiated, for example, including evidence from Philip

14 Morris documents, it was very clear that the intent

15 was to provide a product that addressed the health

16 concerns of individuals in the marketplace who were

17 increasingly worried about the health consequences of

18 light cigarettes.



15 Q. Have you reviewed this testimony of James

16 Morgan?

17 A. Yes, I have.

18 Q. And does this answer questions about the

19 intention of Philip Morris when they released this

20 Marlboro Light cigarette?

21 A. I believe it does.

22 Q. All right.

23 THE COURT: Overruled.

24 (The following excerpt testimony of Mr. James






 32




1 Morgan was played.)

2 "Q. The phrase especially is very important,

3 but be that as it may, you were getting

4 findings by your people, or people working

5 for indirectly, that the overall image that

6 was being perceived by consumers, whether

7 you intended it or not, was that these

8 cigarettes were better for you and better

9 for your health from those two reports I

10 have shown you, is that correct, sir?

11 MR. LOMBARDI: Object to the form. That's

12 not a complete statement of what the report

13 that is Exhibit 4 says. So, object to the

14 characterization.

15 A. Through information, persuasion,

16 communications external to the cigarette

17 industry regarding low tar, low tar's

18 relationship to smoking and health, it is,

19 yes. The answer is yes, the consumer was

20 perceiving in the 1970's lower tar as tied

21 to less hazardous. We'll use that phrase,

22 okay. And yes, we were aware of that."

23 (Thus concluding the exerpt testimony.)


22 Q. This clip that you just observed, did it

23 indicate to you what light cigarette customers thought

24 about low tar cigarettes?






 36




1 A. Precisely. I mean independent of the

2 intent of the -- of Philip Morris, the -- Mr. Morgan

3 was saying he had information from all kinds of

4 sources -- or information was coming to the public

5 from all kinds of sources, and he had access to that

6 information, that, yes, indeed, health is what was

7 implied by this language.


23 Q. Have you had a chance to look at this

24 document, sir?






 39




1 A. Yes, I have.

2 Q. Does this document help you understand

3 what consumers believed in terms of the word low tar

4 and light?

5 A. Yes, it does.

6 Q. Okay. And could we look to the second

7 page.


7 Q. What's the significance of this language,

8 Dr. Cialdini?

9 A. It's very clear. In the highlighted

10 language it says that the principle reason for

11 switching to low tar is of course the health concern.

12 And then it goes on to say that it's so generally

13 understood that smoking it bad for you, that the

14 attitude is unspoken unless asked for. Frequently

15 people don't even mention it because it's so clearly

16 the case in the minds of the majority of individuals.

17 But, the key for me is the first part of the phrase

18 relative to the question why did I believe that that

19 language suggests health is that the principle reason

20 for smoking low tar is of course that is the health

21 concern. So, it was about the health concern.

22 Q. Now, Mr. Morgan was talking about the

23 time when Marlboro Lights were introduced into the

24 market. I think his testimony is referencing a time






 41




1 in the early 70's and referencing that period. What's

2 the date of that document?

3 A. 1987.

4 Q. So, this is reflecting a period some

5 sixteen years later. And what does that indicate to

6 you throughout this period of time, the consumer's

7 perception of this term light?

8 A. That it has remained constant.

9 Q. Now, what psychological principles did

10 you find when you went about this -- this task of

11 looking at these specific descriptors, what principles

12 did you find relevant in analyzing the language on

13 these cigarette packs?

14 A. I thought there were four principles of

15 persuasion and of psychology in general that were

16 relevant. One is association, another is consistency,

17 a third is authority, and the final is what we call

18 social proof.

19 Q. If you can, before we start going through

20 them individually, can you explain how these

21 principles affect people in their day-to-day lives.

22 A. They are the shortcuts that people use to

23 decide how to behave or what to believe in a situation

24 when they don't have the time or energy to examine all






 42




1 of the features of that situation. If they see one or

2 another of these principles there, they're likely to

3 use it as a shortcut for determining what to do.

4 Let's take the principle of authority, for example.

5 If the experts in an arena have specified that this is

6 the right way to move, well, it doesn't require that

7 we learn everything about that perhaps highly

8 technical or arcane area. We can just take their

9 advice and move in that direction. We don't have to

10 think very much about it. We can still be right.

11 It's a shortcut.

12 Q. I should have asked you before, but when

13 we were showing the video clips of Mr. Morgan and we

14 were looking at these documents -- you've actually

15 given depositions, three depositions in this case,

16 haven't you?

17 A. Yes.

18 Q. And these documents weren't even released

19 until the last couple, two or three, weeks. Had you

20 formed your opinions about this from looking

21 specifically at these packs and drawing upon your

22 knowledge and understanding of human behavior in

23 psychology?

24 A. Yes. It was the case that my






 43




1 understanding of how these principles would work to

2 influence people were the basis of my opinions; but,

3 these subsequent recently released documents

4 corroborated that point of view, were very consistent

5 with it.

6 Q. Weren't a surprise to you, were they?

7 A. I was heartened at the extent to which I

8 could make the same determination that later proved to

9 be the case from simply an analysis of the psychology

10 of influence as I know it.

11 Q. Let's start with the first of these

12 principles that you've identified which you talk about

13 of the four we should talk about, and that's

14 association. Could you explain how this principle of

15 association works, how it affects people.

16 A. It is perhaps the most fundamental of all

17 processes that people use to make a decision or to

18 develop a response in a situation. And it is that

19 though it refers to the fact that those things that

20 are consistently associated with something else that

21 is positive become positive as a consequence just by

22 virtue of the link between that thing and this

23 positive other entity. The first thing acquires the

24 positivity of the second. This is Pavlov's law of






 44




1 classical conditioning. Remember his dogs? You would

2 ring a bell every time you presented food, and pretty

3 soon the dogs were salivating to the bell. The bell

4 had acquired the character of the food.

5 Q. Is this principle known throughout not

6 only just psychology, but association recognized in

7 virtually all forms of life?

8 A. Yes. I mean, association is the basis

9 for -- I would again say it's the most primitive and

10 fundamental basis for all responding, and there is

11 no-one that does not respond to this principle.

12 Because it is so fundamental. It's the basis on which

13 we decide very frequently at the most primitive level

14 how to think about something, what's it connected

15 with.

16 Q. Is the principle effective even when the

17 association is not real?

18 A. Yeah. I like to tell the anecdote of a

19 few years ago, if you remember, NASA landed on Mars.

20 And there was a piece of vehicle, a vehicle called the

21 Mars Lander, that went out from the ship and toured

22 around and sent some signals back to earth. And there

23 was a big publicity about it for a while. And

24 everything associated with the Mars Lander -- there






 45




1 was a toy model, for example, that sold out in the

2 stores. Because it was such a positive success, that

3 anything associated with the Mars Lander was -- was

4 positive in the marketplace. The interesting thing

5 was that not only was everything associated with Mars

6 Lander a big seller; Mars candy bars became -- became

7 much more popular, even though the Mars candy bar was

8 named after the owner of the candy company, Charles

9 Mars, who had nothing to do with it. Just the

10 association was enough to cause people to see Mars

11 bars as more positive and wanted more.

12 Q. How do marketers use this principle of

13 association?

14 A. They use it in -- one way they use it is

15 to associate their product or service with something

16 that they perceive is a desirable or positive

17 attribute that the market wants, that its target

18 market wants.

19 Q. Is there anything with a marketer using

20 the principle?

21 A. I bet we can -- there are some examples

22 of how marketers use it. I think I --

23 Q. Do you have some?

24 A. I have some. I have an ad for Saturn,






 46




1 for example, that appeared in a recent magazine that

2 I've brought along. And if you could punch that up,

3 we could probably take a look at what that is like.

4 This was an ad for Saturn.

5 Q. By the way, does this appear in a

6 textbook of yours?

7 A. Yes, it does. It's in the book

8 Influence.

9 Q. All right. And explain, if you would,

10 how association works here.

11 A. What we have is a survey from a purchaser

12 of Saturn, Jennifer Miller, who writes to Saturn and

13 says I'm environmentally minded -- I'm an

14 environmentally minded kind of person, and I know that

15 Saturn does a great job with its recycling program.

16 And for that reason it was just -- it was associated

17 with Saturn that I would want to -- I would want to

18 buy this product.

19 Q. And do marketers use that throughout all

20 different types of techniques to associate some

21 positive attribute with their product?

22 A. Yes, they do, in all kinds of situations.

23 Q. Is it an effective marketing tool?

24 A. It's very effective, because it applies






 47




1 -- once again, it's a process that applies to

2 everyone.

3 Q. What about improved health

4 characteristics of a product? How would that be

5 susceptible to consumer association in terms of

6 health?

7 A. Well, now you've hit on another universal

8 in my view. I think that it's the case that personal

9 well-being, improved health, is universally positively

10 regarded, and that if that is -- and very powerfully

11 positively regarded. Because health is so persuasive

12 and so powerfully regarded as a positive entity, if

13 that's the thing that we associate with our product,

14 we're going to get our product garnering a lot of

15 positivity that comes from this -- this concept of

16 health.

17 Q. You were talking about health being a

18 positive. I mean, can you imagine -- and irrespective

19 of a person's background or education and training,

20 what part of the country they live in -- health not

21 being some positive attribute for them, positive

22 health?

23 A. See, I can't conceive, except for people

24 with a death wish, that there is -- that there






 48




1 wouldn't be a positive connection to health within all

2 strata of society.

3 MR. LOMBARDI: Objection. Lack of

4 foundation.

5 THE COURT: Overruled.

6 Q. Let's talk about cigarettes in

7 particular, okay.

8 A. Surely.

9 Q. Why is association so effective in

10 communicating an improved health message?

11 A. Because for many many many years now all

12 members of the American public have been aware of the

13 controversy associated with cigarette smoking and

14 health. And so, if one could link some aspect, some

15 positive aspect of cigarettes to health, that would be

16 very important for especially smokers to hear.

17 Q. What's the role of association in your

18 mind in the sale of products marketed with the

19 descriptor light?

20 A. Well, light, as I've testified, typically

21 refers to healthier, less hazardous. So, if we can

22 associate the concept light with our product, we bring

23 along the concept of health, that powerful engine for

24 favorability and positivity that transfers to the






 49




1 product.

2 Q. Is the concept of improved health the

3 only reason a person would buy a light product?

4 A. No, I don't believe that. But, I believe

5 it is one reason.

6 Q. Why do you believe that?

7 A. Well, I believe it's the case that, as I

8 said, it is so universally positive that it would be a

9 determining factor. And let me qualify that a little

10 bit by saying for members of this class certainly who

11 have made a choice for a light brand, which means

12 health, as Mr. Morgan admitted, it means health, then

13 of course this is going to be an important

14 decision-making feature for them.


10 Q. Doctor, do you have an opinion to a

11 reasonable degree of certainty within your area of

12 expertise as to the whether the association of light

13 cigarettes with improved health was at least one

14 reason that every member of the class in this case

15 bought Marlboro Lights or Cambridge Lights cigarettes

16 in the state of Illinois?


7 Q. All right. With reference specifically

8 to those people in this class, and they have been

9 defined as people who purchased in the state of

10 Illinois Marlboro Light cigarettes and Cambridge Light

11 cigarettes, and those dates range from 1971 for

12 Marlboro Lights through the beginning of February 2001

13 at the end of the class period as well as Cambridge

14 Lights from 1986 until 2001, do you have an opinion

15 again within --

16 THE COURT: Well, before you go on, all

17 right, next ask him if he's -- if he would be familiar

18 with the consumer responses or whatever the subject

19 matter.

20 MR. TILLERY: All right.

21 Q. Do you feel that the experience that you

22 have, the training you have, the specific

23 understanding you have of these, as you've described,

24 fundamental principles of persuasion and influence






 57




1 accepted in your field, would apply equally to the

2 people that I've just described in this class who

3 would have purchased these cigarettes in the state of

4 Illinois?


21 Q. Did you remember it, or do you want her

22 to read it back?

23 A. I think I will need to have it restated.

24 Q. All right. I'll restate it. The






 58




1 question is: From all of your training and experience

2 and knowledge of these principles of influence and

3 persuasion, whether people from this class, purchasers

4 of Marlboro Lights and Cambridge Light cigarettes in

5 the state of Illinois, would they in your view, first

6 of all, the first part of the question is, be

7 influenced, be pursuaded, be affected by the

8 descriptors along the same ways you would expect other

9 consumers in this country to be affected?



19 A. Yes, I do believe that they would respond

20 comparably.

21 Q. All right. Now, do you have an opinion

22 to a reasonable degree of certainty within your field

23 as to whether the association of light cigarettes with

24 improved health was at least one reason that every






 59




1 member of the class in this case bought Marlboro

2 Lights or Cambridge Light cigarettes during the class

3 period?

4 MR. LOMBARDI: And for the record, the same

5 objection.

6 THE COURT: Overruled.

7 A. I will -- yes, I do have an opinion.

8 Q. What is your opinion?

9 A. It is that -- I'm going to ask you to

10 repeat the question again, because the objection --

11 Q. All right. Do you have an opinion as to

12 whether or not the association of light cigarettes

13 with improved health was at least one reason that

14 every member of the class in the case bought Marlboro

15 Lights or Cambridge Light cigarettes during the class

16 period?


11 Q. What is your opinion?

12 A. It is that it was at least one reason.

13 Q. Why do you say that?

14 A. I say it because, first of all, I believe

15 that health is a universally positive feature, that

16 people will choose it when given the option. And it's

17 part of a suggestion to them that they can get it by

18 moving in a certain direction. And as members of this

19 class they made an affirmative choice to purchase this

20 kind of cigarette. So, I believe that they did so for

21 -- at least one reason was for the purposes of

22 improved health.

23 Q. How did the phrase lower tar and nicotine

24 affect the association with improved health of a light






 61




1 cigarette?

2 MR. LOMBARDI: Same objections. I have the

3 standing objection, the lack of foundation objection,

4 as I just stated, your Honor.

5 THE COURT: Overruled.

6 A. Yes. Well, lower tar and nicotine is

7 once again associated with health, and that

8 association that repeatedly appeared on the pack with

9 light then of course strengthened the association

10 between light and health.

11 Q. Why does association particularly affect

12 all class members here?

13 MR. LOMBARDI: Same objection. Lack of

14 foundation and my standing objection.

15 THE COURT: Overruled.

16 A. Because association applies to all

17 people. It is the fundamental way in which we process

18 information. In fact, it applies even to sub-humans,

19 like Pavlov's dogs. And there's research that worms

20 behave on the basis of association. It's so

21 fundamental, it is the elemental way in which we

22 decide.

23 Q. What is consistency, sir?

24 A. Consistency, the principle of consistency






 62




1 refers to the tendency of people to want to be

2 consistent with the beliefs, behaviors,

3 self-perceptions, and attitudes that they hold.

4 Q. Can you give me an example of how

5 consistency would work in terms of marketing or any

6 other --

7 A. Yes. We could take that same Saturn

8 example that we looked at earlier. Not only is it the

9 case in this ad that Saturn is associated by the

10 marketers with -- with environmental causes, but the

11 specific proposal is that an environmentally minded

12 purchaser decided to purchase a Saturn to be

13 consistent with her self-perception as an

14 environmentally focussed person. And so, this kind of

15 ad will do double duty. It not only associates Saturn

16 with the environment; it's a -- to all customers out

17 there who are environmentally minded, if you are to be

18 consistent with that self-perception, you should take

19 a step in our direction.

20 Q. How does consistency work with a prior

21 action or commitment, Doctor?

22 A. Well, another way in which consistency

23 works is if an individual takes a step, takes a stand

24 on some issue, makes a behavior, an active step, then






 63




1 there will be consistency pressures to cause people to

2 behave in a way that's congruent with what they have

3 already said or done.

4 Q. Give the judge an example of that.

5 A. Well, in a legal situation there's

6 research to show that if in jury deliberations on a

7 preliminary vote the members of the jury are asked to

8 show -- for a show of hands versus a secret ballot,

9 the jury hangs significantly more often because they

10 have taken this -- they've made a commitment, a public

11 act of commitment, to their initial position, and they

12 won't get away, and they'll stay stubbornly with it.

13 They'll be consistent with the commitment, the

14 behavior, that they've undertaken.

15 Q. Are there some more demonstrative slides

16 that demonstrate the same thing?

17 THE COURT: Excuse me. These are bales of

18 what? Paper or rags or what?

19 THE WITNESS: Yeah, they're sitting on

20 recycled materials.

21 THE COURT: The reason I ask is I knew a junk

22 man who used to collect them 30, 40 years ago.

23 THE WITNESS: Yeah. And they're still doing

24 it.






 64




1 THE COURT: Yeah. Okay. I'm just trying to

2 associate the environmental aspect of the ad.

3 THE WITNESS: Yeah.

4 A. Here's a study that shows how this

5 works. It's also a study that I talk about in my book

6 Influence in which people are asked to make a choice

7 about the length of certain lines initially. And one-

8 third of them are asked to keep their choices in their

9 heads as to which line is the longest. Another group

10 is to make an active choice. They're to write down

11 their decision for just a second and then erase the

12 decision so nobody can see it, all right. And you

13 find that just making a choice causes people to be

14 loyal to that choice. Because now when the

15 researchers bombarded them with information to show

16 that their choice was wrong, how many stayed loyal to

17 it? Well, just making the choice, 50 percent will

18 stay loyal to their choice. If they make it actively,

19 if they just write it down, now 68 percent will stay

20 loyal to that choice in the face of this contradictory

21 information. But, if I see the next slide, by far

22 those who stay adamentally loyal to their position are

23 those who make an active and public choice where --

24 now we don't see it on this particular slide. Now






 65




1 it's 89 percent of everyone who has made an initial

2 choice actively and publicly, that is, not only by

3 writing it down, but by showing it to other people,

4 they're not going to get off of this point. And it

5 doesn't matter that along comes some contradictory

6 information. They are going to stay there. That's

7 how powerful this is. Eighty-nine percent.

8 Q. Marketers know about this?

9 A. Marketers know about this.

10 Q. And how do they know about it?

11 A. They try -- well, they know about it by

12 trial and error and by reading the research. But,

13 they try to implement it by getting people to take

14 steps, to take initial stands, that are consistent

15 with the direction they eventually want them to go.

16 Q. Give us an example of that.

17 A. I've studied a technique that car

18 salesmen use called a low ball technique where what

19 they'll do, you go into a dealership, and they will

20 give you a price on a car that they never expect to

21 sell you that car for. But, they want to get you to

22 choose that car, to make a decision for it, maybe even

23 take it home, drive it around the neighborhood, show

24 it to your friends. Then you come back, and something






 66




1 happens. The deal that they gave you isn't quite as

2 good. Oh, well, the manager wouldn't allow me to give

3 you this deal. Oh, you mean you wanted air

4 conditioning with that here in Arizona? Okay. Well,

5 then that's an extra $600 or whatever. People stay

6 with the choice that they make, even though the reason

7 they made the choice has been taken away, because

8 they've made the choice.

9 Q. What's this mean to a person who buys

10 light cigarettes?

11 MR. LOMBARDI: And same standing objection,

12 your Honor, and lack of foundation.

13 A. Every time --

14 THE COURT: Overruled.

15 A. Excuse me. Every time someone buys a

16 pack of light cigarettes, that person makes an active

17 public choice for it and commitment to it. I want a

18 pack of Marlboro Lights, I want a pack of Cambridge

19 Lights. Every time.

20 Q. How does that public and active

21 commitment affect them?

22 A. It's going to solidify their commitment

23 to it, their loyalty to the brand, and it's going to

24 cause them to see that brand as more favorable. All






 67




1 aspects, all features of that brand must be more

2 favorable because I've chosen it.

3 Q. Does --

4 MR. LOMBARDI: And I move to strike based on

5 the standing objections and lack of foundation, your

6 Honor.

7 THE COURT: Overruled.

8 Q. Does this prior action or commitment have

9 to be a significant type of action or commitment?

10 A. That's the interesting thing about it.

11 It can be as small as buying a pack of cigarettes. It

12 can be as small -- let me give you an example from a

13 restaurant as to how small this can be and make a big

14 difference. One big problem that restaurant owners

15 have is no shows, people who book a reservation at the

16 restaurant and then don't appear for the table.

17 Everybody loses. What restaurant owners have tried to

18 do is all kinds of things to reduce the number of no

19 shows. But, there's a guy in Chicago, Gordon

20 Sinclair, who did something in his restaurant that

21 greatly reduced the number of people who bailed out on

22 their reservation by adding two words to what his

23 receptionist said when they called on the phone.

24 Previously she said Thank you for calling Gordon's






 68




1 restaurant. If you have to change or cancel your

2 reservation, please call. All right. Now she says

3 Thank you for calling Gordon's restaurant. If you

4 have to change or cancel your reservation, will you

5 please call. And she pauses and waits for the

6 customer to say Yes, I will. And no shows have

7 dropped by 300 percent at that restaurant

8 immediately. A small commitment, and now people are

9 going to stay consistent with it.

10 Q. Signing a petition, is that another

11 example of this?

12 A. Signing a petition in favor -- I don't

13 sign petitions in favor of things that I'm not truly

14 involved in any more, because I know there's research

15 that shows that if I sign a petition, if anybody signs

16 a petition, in favor of a particular cause -- there

17 was a study done in Israel, for example, where if

18 people signed a petition in favor of a handicap -- the

19 mentally handicapped, supporting them, a week later

20 when soliciters came to their door collecting funds

21 for the mentally handicapped, over 90 percent of those

22 people were now willing to give a donation whereas

23 those who hadn't been asked to sign the petition, only

24 55 percent of those were willing to. So, you can






 69




1 increase almost to everybody by just getting people to

2 make that powerful first commitment.

3 Q. Can consistency be used both fairly and

4 unfairly in the marketing context?

5 A. Yes. If we were -- please go ahead. I'm

6 sorry.

7 Q. Give me an example of it.

8 A. If we could look again at our Saturn ad.

9 And if it's indeed the case that Saturn does recycle,

10 and they do a great job of recycling, they're at the

11 top of their industry for recycling, they are

12 entitled, it seems to me, to say to environmentally

13 minded people If you're environmentally minded, buying

14 a Saturn is consistent with that self-perception.

15 But, if they're dissembling, if they're not honest, if

16 they just say You know what, We want to get the market

17 on environmentally conscious people, and they just

18 make up this ad in order to get those people to behave

19 in ways that are consistent with the self-perception,

20 that's unfair. That's a misuse of this powerful

21 psychological principle.

22 Q. Let's move into the area of health

23 products. How effective is consistency in marketing a

24 so-called improved health product?






 70




1 A. Oh, I think it's very important.

2 Because, once again, the power of health. And people

3 want to be consistent with a view of themselves as

4 prudent, as health minded, as concerned about their

5 personal welfare.

6 Q. Well, in the context of light products,

7 would consistency have a role in the sale of light

8 products?

9 A. Yes.

10 MR. LOMBARDI: Same objection, your Honor.

11 THE COURT: Overruled.

12 MR. LOMBARDI: Standing objection, and lack

13 of foundation.

14 THE COURT: Overruled.

15 A. Yes, of course. Because, as we've

16 already discussed, light products are associated with

17 health, and health is that -- is that powerful engine

18 of positivity that people want to be associated with

19 and want to be consistent with if they view themselves

20 as personally prudent.

21 Q. What does this role or strategy have in

22 the sale of Marlboro Lights and Cambridge Light

23 cigarettes to class members?



8 A. Well, Marlboro Lights and Cambridge

9 Lights represent on the pack either that there is --

10 that their cigarette is light, which I've previously

11 testified in my opinion suggests health -- implicates

12 health. It does more than suggest it. It implicates

13 health. In the case of Marlboro Lights, there's also

14 that information there that says lower tar and

15 nicotine, which implicates health.

16 Q. Could you explain how the -- let's just

17 assume -- I know you're not here talking about

18 nicotine or addiction or anything else. But, could

19 you explain how the addictive nature of cigarettes

20 affects the way in which consistency is used by class

21 members.

22 MR. LOMBARDI: Object --

23 Q. And from a psychological or social

24 psychological.






 72





5 Q. Is it a factor?

6 A. Yes, it is.

7 Q. Explain to the Court how it is.

8 A. People who are addicted know that they

9 will be -- they are likely to be smoking cigarettes.

10 Therefore, if they can find --


7 Q. You can answer.

8 A. Yes. An individual who is addicted

9 likely expects that he or she will be a smoker.

10 Therefore, it's very important for this individual to

11 move in the direction of health to be consistent with

12 this desire for personal well-being, all right. So,

13 it's even more important for that type of individual,

14 that person suggests to himself, probably will be a

15 smoker. So, anything -- any opportunity to move in a

16 healthful direction will be motivated for that person.

17 Q. Is health a special motivator for

18 consistency with regard to Cambridge Lights and

19 Marlboro Light cigarettes?

20 MR. LOMBARDI: Objection, your Honor, to the

21 lack of foundation and lack of foundation as to this

22 class.

23 THE COURT: Overruled.

24 A. Yes, I believe it is for the reasons I've






 75




1 already stated, that health is so powerfully positive

2 and pervasive, people will want to be consistent with

3 it.

4 Q. What is authority in terms of these four

5 psychological principles you've mentioned?

6 A. Yes. The authority principle of

7 influence suggests that people will defer in their

8 judgments and decision to the counsel of expert --

9 experts in a particular area.

10 Q. Give us some examples of that, Dr.

11 Cialdini.

12 A. Well, it's another shortcut that we will

13 use. When I go to the supermarket and I want to buy a

14 good tube of toothpaste, I don't want to first have to

15 go to my university library and research the chemical

16 constituents of a good dentifrice. I want to turn the

17 box over and see that the American Dental Association

18 has certified this as a good toothpaste. And the

19 authority has spoken for me. I don't need to expend

20 any time or energy. I can use that shortcut. And

21 it's in my -- it's in my cart, and I'm on to my next

22 decision.

23 Q. You indicated you used that as a short-

24 cut. Is there a term recognized by psychologists,






 76




1 social scientists, to describe this decision-making

2 process shortcut?

3 A. Yeah. It's called a decisional

4 heuristic.

5 Q. And how does this work overall? People

6 do this all day long throughout their life?

7 A. Yes, they do. And I think even more as

8 the pace and form of modern society gives us so much

9 information, so many choices, so many options that we

10 have to consider, we need our shortcuts. They're not

11 luxuries any more. They're out and out necessities

12 that we use these principles. And so, marketers who

13 employ them are going to be successful.

14 Q. Why don't we look at a couple of examples

15 that you've given us for marketing using principles of

16 authority.

17 A. So, here's an ad for Colgate using the

18 same toothpaste analogy that I was describing before.

19 The only toothpaste accepted by the ADA, the American

20 Dental Association, for protection against plaque,

21 cavities, and gingivitis. Their claim is lent

22 credibility by the authority.

23 Q. Do you got another example?

24 A. Here's an ad for Toyota Sienna which says






 77




1 The Toyota Sienna did better in Insurance Institute

2 crashes than any other vehicle ever. Well, here the

3 deference is to this independent expert body called

4 the Insurance Institute. You don't have to take our

5 word for it; Look, the Insurance Institute claims

6 this; Therefore, you would be well advised if you're

7 interested in safety, if that's consistent with your

8 self-view and what you want, to purchase our product.

9 Q. Anything wrong with doing that if you're

10 a marketer?

11 A. Not at all if that information is indeed

12 correct. I think it actually -- it's beneficial to

13 the consumer to know this information. I'm not

14 suggesting that these principles are tricks or devices

15 used to invariably fool people. I think they're the

16 tools that people normally use to steer themselves

17 correctly.

18 Q. And make correct decisions?

19 A. And make correct decisions. It's only

20 when a marketer would twist the facts so that it's not

21 true --

22 Q. Well --

23 A. -- what they're saying.

24 Q. -- what if you sold a product that's not






 78




1 really lower tar and nicotine to the consumer?

2 A. That would be a deceptive use of this

3 principle. That would be using a lever that moves

4 people all the time in normally correct directions,

5 but you've tricked the system. You've fooled them

6 into believing something.


3 Q. I wanted to go back for just a minute and

4 talk about something that really goes just a little

5 bit before where we were here. You talked about this

6 issue of consistency in terms of the decision-making

7 actions of a smoker, and we were talking about

8 addiction. And let's talk about the smoker who for

9 one reason or another views himself or herself as

10 negatively in the -- from the standpoint of their own

11 smoking. What does a light or a lower tar and

12 nicotine cigarette provide that smoker to allow them

13 to deal with this issue and maintain consistency?

14 MR. LOMBARDI: Objection, your Honor. No

15 foundation. There's no foundation that this gentleman

16 has spoken to any smoker that fits that description.

17 And obviously I'm referring to the standing objection

18 as well.

19 THE COURT: Overruled.

20 Q. You can answer.

21 A. Yes. That's no question, because that I

22 think characterizes the situation that --

23 THE COURT: Well, let's answer it. I'll

24 evaluate the question. Go ahead.






 81




1 A. Okay. It is that there is -- people are

2 in a state of conflict. That is, on the one hand they

3 recognize that they are a smoker. On the other hand,

4 they do want health. And what consistency requires

5 them to do is to reduce this inconsistency. In the

6 language of social science, to reduce the cognitive

7 dissonance associated with that conflict, with that

8 inconsistency. And one way to do it is to use a

9 strategy that -- a term of art called mini-maxing the

10 decision. That is, minimizing the costs associated

11 with any option and maximizing the benefits. So, you

12 chooose the option that allows you to minimize the

13 negative aspects and maximize the positive aspects of

14 a situation. And it seems to me that for the light

15 smoker, the representation that light brands will

16 allow you to be a smoker and at the same time do

17 something positive for your health gives them the

18 opportunity to choose the option that minimizes the

19 costs and maximizes the benefits that they're looking

20 for.

21 Q. Now, if we can, let's switch back for a

22 moment to this issue of authority that you've been

23 discussing. Do you believe that the principle of

24 authority played a role in Philip Morris' sale of






 82




1 Marlboro Lights and Cambridge Light cigarettes to the

2 members of this class?

3 MR. LOMBARDI: Objection to foundation in

4 addition to the standing objection.

5 A. I do.

6 THE COURT: Overruled. Wait until I rule,

7 sir. Overruled.

8 THE WITNESS: I'm sorry.

9 Q. Go ahead.

10 A. I do. And --

11 Q. Go ahead. What do you believe?

12 A. Well, I believe that there was authority

13 and expertise that was -- that was lent to Philip

14 Morris by members of the public health community

15 actually who would from time to time deliver

16 information suggesting that light cigarettes were less

17 hazardous.

18 Q. How did they do that as far as your

19 understanding?

20 A. From time to time they would deliver

21 reports. Doctor's would deliver that information. It

22 was taught in medical schools and various kinds of

23 ways that the public might encounter that

24 information.






 83




1 Q. If you can't quit smoking, reduce your

2 tar intake, that sort of thing?

3 A. That message that I heard very frequently

4 was Look, you should quit smoking; but, if you must

5 smoke, choose a low tar brand.

6 Q. How does that association of Marlboro

7 Lights and Cambridge Lights with improved health

8 appear to be aback by the public health community?

9 What impact does that have?

10 A. Oh --

11 MR. LOMBARDI: Just let me state my objection

12 to foundation, your Honor.

13 THE COURT: Overruled.

14 A. It lends credibility to the

15 representations of Philip Morris for their light

16 brands.

17 Q. Explain that.

18 A. Well, if -- if I might not want to

19 purchase a light brand until I'm convinced that it

20 does indeed improve my health, if I hear that members

21 of the public health community are willing to

22 subscribe to this action, that enhances my confidence

23 that this is indeed a proper step for me to take.

24 Q. Is the public health community and their






 84




1 information to the public generally a positive

2 attribute for people? In other words, do they view

3 the public health community positively?

4 A. I believe they do.

5 Q. If light cigarettes, specifically

6 Marlboro Lights and Cambridge Light cigarettes,

7 weren't actually healthier than regular cigarettes,

8 did the authority of the public health community

9 actually make the fraud more credible?


20 A. Yes. If it was the case that this

21 information was false, the commentary of the public

22 health community recommending lower tar brands would

23 increase the credibility of Philip Morris'

24 representations about this even though it was false.






 85




1 Q. Explain the principle of social proof to

2 the Court, please.

3 A. That's the last of the principles I talk

4 about. It's the one, it refers to a tendency for

5 people to make a decision about what they should do in

6 a particular situation by looking at what others are

7 doing or have done there.

8 Q. Well, give us an example of that.

9 A. Well, you can see it in various kinds of

10 situations. I think we've got a couple of slides that

11 show how that works.

12 Q. Before you put the slides up, I wanted to

13 ask you a question, something that seems to work on me

14 pretty well. You go into a restaurant and you see on

15 the menu Our most popular dish -- into some restaurant

16 that you're happy with -- Our most popular dish. What

17 does that mean? How is that construed by a consumer?

18 A. I think it's construed that Oh, this must

19 be good, because everybody does it. In fact, there's

20 research to show that if a restaurant owner puts on

21 the menu an item that says Our most popular dish, it

22 becomes more popular immediately just by knowing that

23 other people do it. I've actually used this in my own

24 marketing for my book. I don't have a copy of the






 86




1 book here, but one of the things on the book says

2 250,000 copies sold, or a quarter of a million copies

3 sold. And I'm not ashamed at using this, because it

4 really has sold a quarter of a million. And if people

5 read that, I think that they're properly informed

6 about the fact that a lot of people like this book,

7 and they might, too.

8 Q. If you had, however, sold 2500 copies or

9 25 copies, that claim would be fraud, wouldn't it?

10 A. I would -- I would find that

11 objectionable.

12 Q. Right. Okay. There was a reference you

13 told me about when we spoke about this last evening

14 about the 9-11 incident.

15 A. Yes.

16 Q. And the social proof issues that one

17 could glean from at least some of the film clips from

18 that tragedy.

19 A. Actually it was something more than film

20 clips. It was a conversation I had with a man who was

21 in New York during 9-11 and was walking toward the

22 twin towers when the first one was struck. And he --

23 he saw smoke, and he didn't know what it was, and so

24 he began moving toward the towers to see what was






 87




1 going on there. And about a block later he

2 encountered a mass of people running away from the

3 towers. He turned and went with them because the

4 social proof -- there wasn't any material or physical

5 proof that he had now gotten. The social proof was

6 safety is the other way. It certainly is not that

7 way. He turned on his heel and ran with them.

8 MR. TILLERY: If you can, pull up these

9 slides demonstrating this point from a marketing

10 standpoint.

11 Q. Tell us what this demonstrates, please.

12 MR. TILLER: I've got copies for the record,

13 your Honor, of all of these to put into evidence.

14 THE COURT: Okay.

15 A. Here's an ad for Price Line. com. And if

16 you notice, the headline, after showing all -- or

17 before showing all of these photographs of people who

18 have purchased Price Line -- or used Price Line.com,

19 This week 2000 -- excuse me, 20,000 more people got

20 their price at Price Line.com. You could be next.

21 The message is Look, if everybody is doing this, it's

22 the right thing; It's probably right for you, too.

23 Q. Is there another?

24 A. This ad is similar in that it shows a lot






 88




1 of faces indicating the multiplicity of people who

2 have chosen a Toyota. I think the key is the line at

3 the bottom: Toyota Camry is the number one selling

4 car in America for the second year in a row. Looks

5 like we all share more in common than we think.

6 Okay. The interesting thing and the telling thing for

7 me here about that message is that they have not said

8 anything about the car, that the car is good. They've

9 said a lot of people think the car is good, which is

10 proof enough in this ad.

11 Q. That's a demonstration exactly of what

12 you're talking about?

13 A. Yeah. It's the social proof, not the

14 physical proof that carries the day.

15 Q. Well, let's apply that to the health

16 message. How does that work if we apply that to the

17 marketing of products making health claims?

18 A. If we see that those health claims have

19 the consequence of causing a lot of people to move in

20 their direction, in the direction of the product, it

21 once again lends credibility to those claims: Look,

22 all these people are choosing it; It must be the right

23 thing to do.

24 Q. What role would you think this principle






 89




1 of social proof would play in the sale of Marlboro

2 Lights and Cambridge Lights to the class members in

3 this case?

4 MR. LOMBARDI: And again, my objection is

5 lack of foundation for any response to this question

6 in the record so far. And I obviously refer to the

7 standing objection as well, your Honor.

8 THE COURT: Overruled.

9 A. My understanding is that Marlboro Lights

10 has become an extremely popular brand. I think it's

11 --

12 Q. You may assume it's the most popular

13 brand in the country.

14 A. Most popular brand in the country. That

15 popularity will cause other people to choose it,

16 because the popularity validates the claims of the

17 marketers of the brand.

18 Q. Light, lower tar and nicotine?

19 A. Light, lower tar.

20 Q. In your opinion to a reasonable degree of

21 certainty in your field based upon the principles that

22 you told us about, did Philip Morris' health message

23 on the packages of Marlboro Light and Cambridge Lights

24 influence all class members in their decision to






 90




1 purchase those cigarettes at least in some way?

2 MR. LOMBARDI: Excuse me, I'm sorry. In

3 addition to the standing objection, there's a complete

4 lack of foundation for any response to that question.

5 THE COURT: You want to specify the health,

6 what health aspects.

7 Q. Okay. The word -- let's start off and

8 let's break the question down and say the word light

9 as a descriptor. To a reasonable degree of certainty,

10 does that, as you have described, the connotation of

11 that health message, influence all class members in

12 their decision to purchase those cigarettes?

13 A. I believe --

14 MR. LOMBARDI: I'm sorry. My object --

15 THE COURT: Overruled. The Court is

16 satisfied.

17 MR. LOMBARDI: And I'd just say my objection

18 is foundation, your Honor, for the record.

19 THE COURT: I know it's your objection.

20 MR. LOMBARDI: And the standing objection.

21 A. I believe it does.

22 Q. In the ways you've described?

23 A. In the ways that I've described.

24 Q. Do you believe that --






 91




1 A. Well, let me -- I'm going to qualify

2 that. Except for people with a death wish.

3 Q. All right. Do you believe if we apply

4 these principles that you've identified, all of them,

5 do you believe that any of these four principles when

6 you're dealing with a single consumer --

7 A. Yes.

8 Q. Okay? We're talking about a class member

9 of this class buying Marlboro Lights and Cambridge

10 Light cigarettes, caused -- any of those four

11 principles caused Philip Morris' health message and

12 the term light to play a role in every class member's

13 choice of Marlboro Lights and Cambridge Lights?

14 MR. LOMBARDI: And, your Honor, I object on

15 grounds of foundation. There's no foundation with

16 respect to the class members in this case. And I

17 still rest on the standing objection as well.

18 THE COURT: Overruled.

19 A. Yes, I do. I believe that the principle

20 of association has that quality of likely to connect

21 the principle -- or excuse me -- the concept of health

22 with this -- with this product and to move people --

23 with the exception of individuals who with suicidal

24 tendencies or some sort of a death wish -- to move






 92




1 these people in favor of choosing that brand.

2 Q. Assuming the Marlboro Lights and

3 Cambridge Light cigarettes are actually no safer than

4 regular cigarettes such as a Marlboro Red or regular

5 Cambridge cigarette. Do you have an opinion to a

6 reasonable degree of certainty whether the use of the

7 descriptor light on the packages of both Marlboro

8 Lights and Cambridge Lights and the phrase lower tar

9 and nicotine on the packages of Marlboro Lights was

10 deceptive?

18 A. I do. If that is a false representation,

19 then this is a deceptive use, then this would require

20 -- or this would produce a deceptive use of all of

21 these principles that I've talked about.

22 Q. Now, you know that taste is deemed a

23 factor in --

24 THE COURT: Are you going to get into another






 93




1 line?

2 MR. TILLERY: I am going to start a new

3 line.

4 THE COURT: Okay. Let's take a 15 minute

5 break.

6 (At this time a recess was taken, after which

7 the following proceedings were had in open

8 court.)

9 THE COURT: You may be seated. Are you

10 ready?

11 MR. TILLERY: We're ready, Judge.


16 CONTINUED DIRECT EXAMINATION

17 BY MR. TILLERY:

18 Q. You've heard about taste being a feature,

19 some feature for some smokers?

20 A. Yes.

21 Q. All right. Why do you believe that

22 health was a factor in the class members' decisions to

23 purchase Marlboro Lights and Cambridge Lights when

24 sometimes smokers talk about taste as a factor?






 95




1 MR. LOMBARDI: I object. No foundation, and

2 my standing objection.

3 THE COURT: Okay. That's noted. Overruled.

4 A. Well, first of all, as I've already

5 testified, I believe that health is a factor in the

6 decisions of the members of the class in virtually all

7 instances. Secondly, an examination of the documents

8 that I've seen from Philip Morris suggest that taste

9 was actually a factor that had to be overcome in the

10 marketing of this product right from the beginning and

11 that it was perceived as a negative by the marketers

12 that they had to, as I say, overcome in order to get

13 people to buy the product in the first place.

14 MR. TILLERY: Let's show the Morgan clip,

15 we've got another clip there, please.

16 MR. LOMBARDI: Can I have a page reference?

17 MR. TILLERY: Yes. I'm sorry. Page 40,

18 lines -- page 39, line 19 through page 40 line 15.

19 (The following excerpt testimony of Mr. James

20 Morgan was played.)

21 "Q. The word lighter in taste implied I

22 guess sort of a negative in that it had, as

23 you said, less taste and presumably less

24 flavor than some other cigarette you were






 96




1 comparing it to, is that correct?

2 A. The Marlboro Red.

3 Q. Did that make it a little more

4 difficult to sell at the time because of

5 that?

6 Yes, it did.

7 Q. So that that was not a positive

8 attribute to the cigarette insofar as

9 selling it?

10 It was a consciously applied negative.

11 Q. Okay.

12 Or a limitation, if not negative.

13 Q. It had some negative connotation to

14 you? It wasn't a positive word to use in

15 selling the cigarette, correct?

16 A. Well --

17 MR. LOMBARDI: Object to the form.

18 A. I -- I -- I-- yes, okay.

19 Q. Yes?

20 A. Yes."

21 (Thus concluding the excerpt testimony.)

22 Q. And you said that you've seen documents

23 as well --

24 A. Yes.






 97




1 MR. TILLERY: I want to bring up, if you can,

2 the document 58858. There we go. Great. Hold there

3 just for a second, please.


3 MR. TILLERY: I think this is 79, your

4 Honor. I'll hand them out.

5 Q. Are you familiar with that document, Dr.

6 Cialdini?

7 A. Yes, I am.

8 Q. Let's direct your attention to page six

9 of the document.

10 MR. TILLERY: That's 004382.

11 Q. Go through these highlighted portions

12 with the Court, if you wouldn't mind, and explain how

13 these statements in this Philip Morris document relate

14 to the points you've made.

15 A. The first reads: "Initially, because

16 smokers know they are sacrificing something in the way

17 of taste and effect, there appears to be a conscious

18 settling for a less satisfying cigarette." So, here

19 at the early stages in making a decision about

20 choosing a particular brand or switching to a

21 particular brand, the taste features of a low tar

22 cigarette will be a negative is how I interpret that.

23 "However, once the adjustment or sacrifice is made,

24 the basic motivations for smoking seem to be satisfied






 100




1 and the smoker no longer considers the trade-offs at a

2 conscious level."

3 Q. What's the significance of that?

4 A. That at this point they're not thinking

5 consciously about the trade-off between health and

6 taste; they're just focussing on the experience of the

7 taste. In other words, the ultra low tar cigarette

8 then seems to assume the role of a normally satisfying

9 product. So, whereas before it was negative, it now

10 acquires the satisfaction of a normally purchased

11 product. And then finally: "In all cases, apparently

12 the consumer comes to like or get used to the product

13 and find it somewhat upappetizing to switch back."

14 It's precisely what an analysis of this

15 decision-making process led me to without ever seeing

16 this document by just analyzing the way that the four

17 principles of influence, especially commitment and

18 association, work.

19 Q. Thank you very much, Dr. Cialdini.

20 MR. TILLERY: We'll offer these exhibits, I

21 think there are three, 77 through 79, your Honor, into

22 evidence.


14 CROSS EXAMINATION

15 BY MR. McCONNELL:

16 Q. Good morning, Dr. Cialdini.

17 A. Hello, Mr. McConnell.

18 Q. We've met before, haven't we?

19 A. We have.

20 Q. In fact, I took your deposition three

21 times, is that true?

22 A. That's correct.

23 Q. This is not the first time that you've

24 served as an expert witness, is it?






 105




1 A. No.

2 Q. It actually is the first time that you've

3 been an expert witness in a tobacco case, correct?

4 A. Yes.

5 Q. But, you've also been an expert witness

6 in cases since at least 1984? Do I have that right?

7 A. I believe that's the case.

8 Q. And this also isn't the first time that

9 you've served as an expert witness for Mr. Tillery,

10 correct?

11 A. That's correct.

12 Q. You've been an expert witness in cases

13 involving things like telephone leasing and Publishers

14 Clearing House contests and others as well, isn't that

15 right?

16 A. I have not all for Mr. Tillery.

17 Q. No. I'm sorry. I didn't mean to convey

18 that. But, you have been an expert witness in cases

19 involving those subject matters, correct?

20 A. Yes.

21 Q. And is it true that since 1984 you've

22 made on average at least $30,000 a year as an expert

23 witness?

24 A. I don't know that for sure, but that






 106




1 sounds about right.

2 Q. And does it sound about right that the

3 number has certainly gone up considerably over the

4 last few years?

5 A. Yes.

6 Q. So, for example, in the year 2001 you

7 made over $70,000 as an expert witness, correct?

8 A. I don't know those numbers. I'm sorry.

9 Q. And in this case, Doctor, are you

10 charging $400 an hour for your services?

11 A. Yes.

12 Q. Is that for everything or are there

13 different rates for different activities?

14 A. No, $400 an hour for my services.

15 Q. And up to this point in the case you've

16 billed the plaintiff's Counsel approximately, what,

17 80, $90,000?

18 A. I think it's maybe 75 to $80,000.

19 Q. And in preparing for this case you've met

20 with plaintiffs' attorneys numbers -- a number of

21 times, correct?

22 A. I have.

23 Q. And, for example, you've been meeting

24 with them here in the Edwardsville area for the last






 107




1 few days preparing for your testimony here today,

2 correct?

3 A. Yes, I have.

4 Q. You've been in the area since Sunday, is

5 that right?

6 A. Sunday afternoon, yes.

7 Q. Now, most of your research has been in

8 the area of compliance techniques, correct?

9 A. Well, it's been in the general area of

10 social influence, which would include compliance

11 techniques and persuasion, that is, attitude change.

12 Q. And not to advertise one of your rivals

13 in the field of influence or persuasion, but the issue

14 of compliance often involves getting to yes, is that

15 right?

16 A. Yes. No pun intended.

17 Q. And it's fair to say, isn't it, Doctor,

18 that all businesses engage in compliance techniques?

19 A. If they're to remain successful, yes.

20 Q. All right. And in fact, not just

21 businesses, but all people engage in compliance

22 techniques?

23 A. I would agree with that.

24 Q. Now, you spoke a little bit on direct






 108




1 about some of the -- pardon the phrase -- undercover

2 work that you did to learn about how certain

3 organizations do compliance techniques. Do you have

4 that testimony in mind?

5 A. Yes.

6 Q. And what you did when you engaged in that

7 research activity is you actually infiltrated certain

8 companies or institutions. And in fact, you even used

9 a false name to get a job there, is that right?

10 A. Never to get a job, but to enter their

11 training programs.

12 Q. And you made yourself out as having the

13 intent to become trained as part of that organization

14 to sell whatever product or service they were selling,

15 correct?

16 A. Yes.

17 Q. And it's fair to say that you, in a

18 sense, you misrepresented yourself to them, didn't

19 you?

20 A. For a time.

21 Q. But, you don't consider that an improper

22 misrepresentation? It was in the service of research,

23 is that right?

24 A. Well, I did it for scientific purposes,






 109




1 and I committed myself at the end of each

2 investigation to revealing my true purposes and to

3 allowing them to have me reserve the use of any data

4 that I collected so that they were not bound by my

5 observations.

6 Q. Mr. Tillery, in addition to asking you

7 about your academic activities at ASU, also had you

8 talk a little bit about how you do speaking for

9 companies, is that fair to say?

10 A. Yes.

11 Q. And do you in fact have your own company

12 called Influence at Work?

13 A. I am a co-owner of that company, yes.

14 Q. You have a web site?

15 A. Yes, we do.

16 Q. All right. And one thing that you do at

17 Influence at Work is you actually go out and you do

18 presentations for people who want to be trained how to

19 influence and pursuade people, is that fair to say?

20 A. Well, let me say that I do presentations

21 to people who are interested in persuasion and how to

22 influence people. We also do bring people in to train

23 them for that purpose.

24 Q. Now, typically when you go out and






 110




1 perform these speaking engagements, you charge people

2 to come in and learn from you, is that right?

3 A. I do.

4 Q. And you in fact also train other people,

5 who in turn train other people for money how to

6 influence and persuade people, right?

7 A. Yes.

8 Q. What's your typical fee for speaking at

9 one of these engagements?

10 A. It varies, but I would say the average is

11 $15,000.

12 Q. And about how many of these speaking

13 engagements do you participate in in a given year?

14 A. I try to keep it to about one a month.

15 Q. Now, as part of your speaking

16 engagements, you've also participated in some

17 presentations with a company called McKenna Breen, is

18 that right?

19 A. Yes.

20 Q. And McKenna Breen is a consulting firm in

21 London?

22 A. Yes.

23 Q. You've actually gone over to London to do

24 presentations with McKenna Breen, haven't you?






 111




1 A. I did once, yes.

2 Q. And doesn't McKenna Breen practice

3 something called neurolinguistic programming?

4 A. I don't know what you mean by practice

5 it. They teach the principles of neurolinguistic

6 programming as one of the -- the programs that they

7 offer to clients.

8 Q. All right. And neurolinguistic

9 programming actually is a form of hypnosis, isn't it?

10 A. No, it's not.

11 Q. You agree that there's a connection

12 between neurolinguistic programming and hypnosis?

13 A. The founder of the movement for

14 neurolinguistic programming was a psychoanalyst who

15 used hypnosis in his practice.

16 Q. Mr. Tillery also asked you about some of

17 your publications. Just so the record is clear, prior

18 to any work that you've done in this case, in fact

19 even including work that you've done in this case, you

20 haven't written any peer reviewed work on how people

21 perceive low tar cigarettes, have you?

22 A. No.

23 Q. And you don't consider yourself an expert

24 in cigarette design, do you?






 112




1 A. That's correct.

2 Q. You're also not an expert in addiction,

3 are you?

4 A. I am not.

5 Q. And you've never treated anybody for

6 addiction, have you?

7 A. No.

8 Q. And you don't have an expert

9 understanding of the causes of addiction, do you?

10 A. That's not my area of expertise.

11 Q. And also, it's not your area of expertise

12 to understand the effects of addiction, is it?

13 A. That's not my area of expertise.

14 Q. You've also seen no evidence -- no

15 evidence, Doctor, that addiction makes people more

16 vulnerable to weapons of influence, isn't that right?

17 A. I have seen no direct evidence.

18 Q. You've also seen no evidence that

19 somebody's being addicted to anything, including

20 cigarette smoking, affected their cognitive abilities

21 in terms of being able to literally understand

22 information that was provided to them, isn't that

23 right?

24 A. If you use the strict definition of






 113




1 people who are addicted, I would agree. I am using

2 addiction as a surrogate for being strongly committed

3 to something. And then I have seen all kinds of

4 evidence relative to that.

5 Q. You mentioned marketing, you taught a

6 marketing course at Stanford, is that right?

7 A. Yes.

8 Q. Now, you've never taught a single

9 marketing class at Arizona State University, have

10 you?

11 A. No.

12 Q. And Arizona State does have a College of

13 Business, isn't that right?

14 A. Yes.

15 Q. And that College of Business is what

16 contains the marketing department at ASU, true?

17 A. Yes.

18 Q. And you're not a member of that

19 Department, are you?

20 A. No, I'm not.

21 Q. Now, in formulating your opinions in this

22 case, did you make an effort to try to review as much

23 relevant information as possible?

24 A. Well, I made an effort to review the






 114




1 information that I was afforded by plaintiffs'

2 attorneys and visited the web site of Philip Morris to

3 examine the -- some of the materials that were there.

4 But, truly they were an overwhelming number.

5 Q. Certainly in your academic endeavors and

6 in writing peer reviewed articles you don't think it's

7 appropriate, do you, to try to just take materials

8 that would support a particular hypothesis?

9 A. I -- I wouldn't do that. But, if you

10 have information that would pursuade me in a different

11 direction, I'm glad to hear about it.

12 Q. If you were yourself writing a peer

13 review article, you would go out and try to look at

14 various information, not just information that would

15 support a hypothesis, right? You wouldn't just get

16 information that supports a hypothesis and ask

17 somebody else to provide the counter information,

18 would you?

19 A. I try to look at as representative sample

20 of information as possible.

21 Q. And in doing that you understand it's

22 important to look at evidence, even if that evidence

23 might possibly contradict any preconceptions that you

24 have, true?






 115




1 A. True.

2 Q. Now, whatever internal Philip Morris USA

3 documents that you've reviewed in this case, you've

4 reviewed them because the plaintiffs' lawyers chose

5 them for you, isn't that right?

6 A. That is correct.

7 Q. And isn't it a fact that you've done

8 nothing to determine whether the Philip Morris USA

9 internal documents you reviewed for this case are a

10 representative sample -- that's the phrase that you

11 just used -- of Philip Morris USA documents, have you?

12 A. I have not assessed the represen-

13 tativeness of those documents.

14 Q. By the way, in the kind of work that you

15 typically do and with respect to the peer reviewed

16 articles that you've written, you don't typically

17 attempt -- even attempt to analyze internal company

18 documents to ascertain a marketer's intention, do you?

19 A. Not typically.

20 Q. And you admit, don't you, that any effort

21 to learn a marketer's intention by reviewing internal

22 documents would require you to review a representative

23 sample of such internal documents?

24 A. That would be optimal.






 116




1 Q. Now, if you were trying to formulate an

2 opinion about the intention of Philip Morris USA and

3 marketing certain brands, wouldn't it be relevant to

4 look at what people in the marketing department at

5 Philip Morris USA actually said?

6 A. Yes.

7 Q. Now, your opinions in this case relate to

8 the marketing of Marlboro Lights and Cambridge Lights,

9 correct?

10 A. Yes.

11 Q. And are you aware based on whatever

12 marketing experience you've had that when a company

13 markets products, they typically use certain sorts of

14 documents like brand plans, media plans, things of

15 that nature?

16 A. Yes.

17 Q. Tell the judge how many Marlboro Lights

18 brand plans or media plans you've looked at in

19 formulating your opinions in this case.

20 A. I can't know that. I don't recall how

21 many of them were of that character.

22 Q. Can tell the judge how many brand plans

23 or media plans for Cambridge Lights you've reviewed in

24 formulating your opinions in this case.






 117




1 A. Same answer.

2 Q. Have you looked at any internal Philip

3 Morris USA documents that discuss the relaunching of

4 Cambridge and Cambridge Lights in the mid 1980's?

5 A. No.

6 Q. Have you even asked for those documents

7 from Plaintiff's Counsel or anybody else?

8 A. No.

9 Q. You mentioned the Philip Morris web site

10 before, didn't you?

11 A. Yes.

12 Q. And have you actually gone on that web

13 site?

14 A. Yes.

15 Q. I mean, you have a computer, don't you?

16 A. Yes.

17 Q. One at your office?

18 A. Yes.

19 Q. One at your house?

20 A. Yes.

21 Q. And you know that it's not that hard to

22 log on to the PM dot web site, correct?

23 A. Correct.

24 Q. In doing that, have you ever even tried






 118




1 to find any Cambridge Lights marketing documents?

2 A. I looked in an overall sense at what the

3 documents offered and provided, and I don't recall if

4 I looked at any specific Cambridge Light documents. I

5 didn't go there with an intention to find Cambridge

6 Light documents. I may have encountered some, but

7 that was not my purpose.

8 Q. Did you ever type in the search field

9 Cambridge Lights, push a button, and see what you got?

10 A. No.

11 Q. The same thing for Marlboro Lights?

12 A. I didn't type in the search field, that

13 designation, no.

14 Q. By the way, I just sort of generally

15 stated when Cambridge was relaunched. Do you know

16 specifically when Cambridge was relaunched?

17 A. I think it was about 1985, but I can't be

18 sure. Eighty-six.

19 Q. I'm going to ask about a couple of the

20 documents that you discussed on your direct testimony,

21 Doctor. I want to direct your attention to Plaintiffs

22 Exhibit 77. I don't know if you have a copy of it up

23 there or not.

24 A. Yes, I do.






 119




1 Q. It's -- is that the document that's from

2 Frank Ryan to Myron Johnston dated February 24th,

3 1987?

4 A. Yes.

5 MR. McCONNELL: And can we get that up on the

6 screen, please. It's 3367.

7 Q. Now, when was the first time, Doctor,

8 that you looked at this document?

9 A. It was within the last few days.

10 Q. So, you had actually formulated your

11 opinions -- you had actually made a commitment before

12 you saw this document, isn't that true?

13 A. I had formulated an opinion. One of the

14 things I said in my opinion was that it was

15 susceptible to change upon the -- upon exposure to

16 other information. So, I didn't make a commitment

17 that was irrevokable. I made a commitment to being

18 flexible about those positions that I took.

19 Q. To the extent you did make a commitment,

20 you certainly have remained consistent with that

21 initial commitment, haven't you?

22 A. I've found that the evidence I've

23 reviewed has been consistent, so I haven't had to move

24 far from those initial points of view.






 120




1 Q. Now, this document that's up on the

2 screen, Plaintiff's Exhibit 77, that's a document that

3 was provided to you by Plaintiff's Counsel, correct?

4 A. Yes.

5 Q. In the last few days?

6 A. Yes.

7 Q. And certainly you've read the entire

8 document, haven't you? You haven't just looked at

9 snippets that people --

10 A. Yes.

11 Q. -- have directed you to? All right. So,

12 you read paragraph number one, didn't you?

13 MR. McCONNELL: Maybe we can expand that so

14 it's easier to read.

15 A. Yes.

16 Q. So, you understood that this study in

17 1987 was based on 50 smokers between the ages of 25

18 and 46, right?

19 A. Yes.

20 Q. And to your mind, based upon your

21 expertise, is that a sufficient sample upon which to

22 make general conclusions about consumer behavior?

23 A. In any one instance it can provide a

24 piece of data that we can use to build confidence, but






 121




1 I would say that to the extent that it was consistent

2 with other pieces of evidence, then -- then I would

3 assign more validity to their conclusions.

4 Q. Do you know whether Philip Morris itself

5 assigned validity to these conclusions and concluded

6 whether or not this was a random sample?

7 A. I don't know that.

8 Q. If we look at paragraph one up on the

9 screen, it says Because many were people likely to be

10 free during the day or early evening, they were by no

11 means a random sample of Marlboro and former Marlboro

12 smokers, correct?

13 A. That's correct. I don't know whether

14 Philip Morris assigned such a character to it. I know

15 that the statement is that it was not.

16 Q. And that's in fact referring to something

17 that you understand in your business as a kind of a

18 selection bias, correct?

19 A. I don't know if you call it selection

20 bias, but it's a selected group of individuals not

21 selected at random.

22 Q. By the way, it says that this was a by no

23 means random sample of Marlboro and former Marlboro

24 smokers. How many Marlboro Light smokers were






 122




1 involved in this study?

2 A. Not stated.

3 Q. You can probably tell there were no

4 Cambridge Light smokers involved, right?

5 A. At least from this designation, it

6 doesn't appear.

7 Q. The title of the document is Subject:

8 Marlboro Gray, Boston Interviews, correct?

9 A. Yes.

10 Q. What's Marlboro Gray mean?

11 A. I don't know that.

12 Q. And these -- you'll take this at face

13 value. These are interviews of people in Boston,

14 correct?

15 A. Yes.

16 Q. Do you have any reason to believe that

17 the people interviewed as part of this study were in

18 any way class members for this case?

19 A. I would be surprised if they were.

20 Q. Now, I want to look at the paragraph that

21 you discussed in your direct testimony. That's on the

22 next page. It's paragraph four. And what you

23 discussed and what you showed the judge was a part of

24 this paragraph, correct?






 123




1 A. I don't recall what was -- what was

2 highlighted, but I focussed on a part of it.

3 Q. But by the way, and you said that in your

4 direct, too, what you focussed on. I have a question

5 for you: Who actually chose the sections of this

6 document to focus on, you or the plaintiffs' lawyers?

7 A. Well, they showed me the documents, and I

8 looked through it and indicated those aspects of it

9 that I thought were most relevant to my opinions.

10 Q. So, did you choose the parts that would

11 be blown up and shown to the judge earlier?

12 A. Yes.

13 Q. Okay. So, you chose to show the judge

14 the first sentence in this paragraph, but not the

15 rest, is that right?

16 A. Well, I thought the -- the first sentence

17 was most relevant to my position. And I'm certainly

18 willing to entertain the extent to which the rest of

19 it is inconsistent. If you feel that it is, we can

20 talk about it.

21 Q. Well, let's look at it. The first

22 sentence, the one that you read to the judge, was The

23 principle reason for switching to a low tar is of

24 course the health concern, and it is so generally






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1 assumed to be understood that smoking is bad for you

2 that the attitude is unspoken unless asked for. Now,

3 that's the sentence you read, correct?

4 A. Yes.

5 Q. Now, it says Unless asked for. So, do

6 you know whether or not it was asked for in this

7 survey?

8 A. I don't believe that that was what this

9 sentence says. It said it's so general that in -- I

10 think what this sentence is saying is that in general

11 it's common knowledge that the health con -- the

12 health consequences of cigarette smoking are so well

13 understood that people assume them without being

14 asked. Now, I don't know if that refers to this

15 particular group.

16 Q. Yeah. And my question to you is: Do you

17 know whether or not the respondents in this study were

18 asked?

19 A. Apparently -- no, I don't know for sure.

20 I know that they gave some specific responses.

21 Q. Now, the second sentence says: Specific

22 personal health problems -- coughs, chest congestion,

23 head colds, voice affected by smoking -- had

24 precipitated some switching in the past. Now, let's






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1 stop there. That's consistent with what you've seen

2 in other internal documents, isn't it?

3 A. I can't recall.

4 Q. Well, do you recall whether in any other

5 documents people gave as a reason for switching to

6 lower tar cigarettes the fact that they had coughs,

7 chest congestion, etc., and that after down switching

8 to low tar cigarettes those symptoms went away?

9 MR. TILLERY: Object unless he shows him the

10 documents. He said he doesn't recall, and I object to

11 this unless he shows him the specific documents he's

12 referencing.

13 MR. McCONNELL: I'm just attempting to

14 refresh recollection.

15 A. Yeah, I --

16 THE COURT: Hold on. Let me rule.

17 Overruled.

18 A. I don't have specific recollections.

19 Q. Do you have a general recollection?

20 A. Not on that particular point.

21 Q. If we could look at the top of page

22 three. It's the carryover of paragraph four.

23 MR. McCONNELL: If we could just blow up the

24 first couple of sentences.






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1 Q. Just to make the point, Doctor, if you

2 see right here, the sentence that begins at the top.

3 It says: Based on this inadequate sample, it could be

4 conjectured that if this doesn't occur in the three

5 months pre or post-marriage, it won't occur at all.

6 Now, did you read that when you first read this

7 document as part of reading the entire document?

8 A. I'm sure I did.

9 Q. And did you read this to reflect the fact

10 that Philip Morris itself viewed the sample in this

11 particular study to be inadequate?

12 A. Well, it seems to be an inadequate sample

13 for making statements about the point in that

14 sentence, but I don't know that they saw it as an

15 inadequate sample for making larger points about

16 cigarette smokers. But, about pre or post-marriage,

17 perhaps they did feel it was inadequate.

18 Q. And now if we look at page five,

19 paragraph nine. This is also another paragraph that

20 you must have read when you reviewed this document,

21 correct?

22 A. Yes.

23 Q. And it says: There was some

24 undercurrents in their comments which reflect this






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1 notion: All cigarettes are bad for you and Marlboro

2 and Winston Red are the worst filtered products in

3 this respect. Now, with respect to the first clause

4 of that, quote, All cigarettes are bad for you, is

5 that consistent or inconsistent with what you've seen

6 in the other internal company documents that you

7 reviewed that were provided to you by Plaintiff's

8 Counsel?

9 A. I can't recall if I saw that kind of

10 statement in internal documents from Philip Morris.

11 Q. Do you have Exhibit 79 in front of you,

12 Doctor?

13 A. I do.

14 Q. This is the Goldstein Krall study, is

15 that right?

16 A. Yes, it is.

17 Q. Now, do you know whether the study was

18 actually commissioned by Philip Morris as opposed to

19 Goldstein Krall doing it and then on its own providing

20 it to Philip Morris?

21 A. It appears to be commissioned by Philip

22 Morris, because it says For Philip Morris USA on the

23 title page.

24 Q. Okay. But, do you understand in your






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1 experience that sometimes survey firms will actually

2 on their own perform a survey and then provide it in a

3 way of drumming up future business? Do you know if

4 that's a general practice?

5 A. That's not my experience.

6 Q. Now, this study did focus on ultra low

7 tar smokers, correct?

8 A. Yes.

9 Q. And, in fact, in your review of various

10 materials to prepare for your opinions in this case,

11 you've seen studies, haven't you, that suggest that

12 ultra low tar smokers differ from low tar smokers in

13 their perception of the significance of tar?

14 A. They differ in degree, yes.

15 Q. And Marlboro Lights is not an ultra low

16 tar cigarette, is it?

17 A. No, it's not.

18 Q. And Cambridge Lights is not an ultra low

19 tar cigarette, is it?

20 A. No.

21 Q. And this particular study focussed on the

22 brands Carlton, Now, and True, correct?

23 A. Yes.

24 Q. By the way, those are -- those are all






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1 brands that are ultra low, correct?

2 A. That's my understanding.

3 Q. They don't have the word light or ultra

4 light in their names, do they?

5 A. No.

6 Q. In fact, you're familiar with Carlton as

7 being a brand that actually did make the issue of low

8 tar a prominent feature of its marketing campaign,

9 correct?

10 A. Yes, I recall that.

11 Q. Do you happen to know what Carlton's

12 market share is?

13 A. I don't know.

14 Q. If I tell you it's quite low, will you

15 accept that?

16 A. I will accept that.

17 Q. Do you have an opinion as to why

18 Carlton's market share, given that it's a brand that

19 prominently features what you've referred to as health

20 notions -- ultra low, low tar -- why isn't Carlton

21 more popular than it is?

22 A. I can speculate, if that's what you're

23 asking.

24 Q. I'm just going to ask if you have an






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1 expert opinion. I'm not going to ask you to

2 speculate, Doctor.

3 A. Well, it depends if you want an answer.

4 I don't have an expert opinion. I have some

5 hypotheses.

6 Q. All right. Now, if we look at page 20 of

7 this document, Doctor. This has a classification

8 data, doesn't it?

9 A. Yes, I see that.

10 Q. And it tells us who the respondents were,

11 right?

12 A. Yes.

13 Q. And we see that all the respondents for

14 this study were smokers of various packings of

15 Carlton, True, and Now, correct?

16 A. Yes.

17 Q. And then they were asked What brand of

18 cigarettes do you smoke when the brand most often

19 smoked was not available, correct?

20 A. Yes.

21 Q. How many of them listed Marlboro Lights

22 as one of their other brands?

23 A. Two.

24 Q. One from each group, correct?






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1 A. Yes.

2 Q. And how many listed Cambridge Lights as

3 one of their alternative brands?

4 A. I don't see any.

5 Q. Now, Doctor, you're known for your

6 identification of six principles of influence,

7 correct?

8 A. Yes.

9 Q. And this is your book that you talked

10 about, right?

11 A. That is it.

12 Q. Over a quarter million copies sold?

13 A. Yes.

14 Q. All right. It's a social proof?

15 A. Yes.

16 Q. Quote from Tom Peters. It's authority?

17 A. Authority.

18 Q. Okay. The six principles that you

19 discuss as various weapons of influence in this book

20 and elsewhere are -- and tell me if I'm right or wrong

21 about this -- and I'm going to try to get them in the

22 order that you talked about -- recriprocation,

23 authority, commitment and consistency --

24 A. Yes.






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1 Q. Social proof, liking, and scarcity,

2 right?

3 A. Yes.

4 Q. All right. Now, when you talked about

5 the principles of influence during your direct

6 testimony, you referred not to all six of these, but

7 you referred to a subset of those, correct?

8 A. Yes.

9 Q. And the ones that you referred to were

10 certainly commitment and consistency, correct?

11 A. Yes.

12 Q. And social proof?

13 A. Correct.

14 Q. And authority, correct?

15 A. Correct.

16 Q. But, the first one you talked about was

17 association.

18 A. Yes.

19 Q. So, I just need you to clear up for me.

20 What is association? It doesn't seem to match any of

21 those six principles, but maybe you can explain that.

22 A. Yes. It's a -- if you look in the

23 chapter on Liking, it's a major section of the

24 principle of liking. We come to like something -- one






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1 of the ways we come to like something is by virtue of

2 association.

3 Q. Now, in general, Doctor, you would agree,

4 wouldn't you, that you can't say which of those

5 principles of influence are more influential than

6 others, right? Because it varies from situation to

7 situation?

8 A. I would agree that depending on the

9 situation, one principle might be more powerful than

10 another.

11 Q. And not only does it vary from situation

12 to situation, but it varies from individual to

13 individual? That is, some individuals may be,

14 certainly in a given situation, more susceptible to

15 some of those weapons of influence than others,

16 correct?

17 A. Yes. That some people are more inclined

18 to respond to authority, other people might be more

19 inclined to respond to the social proof of their

20 peers.

21 Q. And certainly some people might respond

22 to certain principles of influence more than other

23 people would, right?

24 A. Yes.






 134




1 Q. And you'd agree that these principles of

2 influence don't work on everyone all the time, do

3 they?

4 A. With the exception of association, I

5 would agree. But, I think association works on

6 everyone all the time.

7 Q. And when faced with one or more of the

8 these weapons of influence, some people may be

9 influenced to the point of action and others may not,

10 correct?

11 A. Depending on the situation.

12 Q. And actually one thing that you do in

13 your book is you try to tell people how they can

14 resist certain weapons of influence, correct?

15 A. Correct.

16 Q. And there are probably people who already

17 on their own had developed the capacity to resist

18 certain of those principles of influence even before

19 reading your book, true?

20 A. Surely. But, I don't advise them to

21 resist them unless those principles are used

22 unethically or deceptively.

23 Q. Now, in terms of how those principles can

24 be used unethically, I just want to talk about a






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1 couple of examples that I think you've given in the

2 past. You actually think it is unethical of Pillsbury

3 to use a fictional figure, Betty Crocker, to sell

4 cookbooks and cake mix, correct?

5 A. Well, a fictional figure who has a set of

6 characteristics that the target market finds

7 convincing about the product when in fact there is no

8 such person.

9 Q. And similarly, when the President of the

10 United States begins a speech and says My friends, you

11 think that's deceptive, because not all the people

12 he's talking to really are his friends?

13 A. Well, I think that -- I wouldn't have

14 much of an objection to that. But, it probably is

15 stretching the truth.

16 Q. You in fact have said in the past that

17 that is objectionable, true?

18 A. I would consider it mildly objectionable.

19 Q. Now, let's talk a little bit about the

20 members of the class in this case. First of all, you

21 haven't seen any evidence in this case that

22 specifically addresses and is confined to smokers who

23 purchase cigarettes in Illinois, right?

24 A. Evidence in the case?






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1 Q. Any evidence that specifically addresses

2 and is confined to smokers who purchase cigarettes in

3 Illinois.

4 A. I've seen the depositions of two class

5 members.

6 Q. Anything else?

7 A. I've spoken to three class members.

8 Q. When did you do that?

9 A. In the last three days.

10 Q. So, you had already formulated your

11 opinions before you spoke with the class members,

12 correct?

13 A. Yes.

14 Q. Can you identify any surveys that you've

15 looked at where you know that at least some of the

16 respondents purchased Marlboro Lights or Cambridge

17 Lights in Illinois?


5 A. I'm sorry. Could you repeat the

6 question?

7 Q. Sure. Of course, Doctor. Have you

8 looked at any surveys where you know that at least

9 some of the respondents to the survey had purchased

10 Marlboro Lights or Cambridge Lights in the state of

11 Illinois?

12 A. No.

13 Q. And you don't know what percentage --

14 we'll now do the public generally. You don't know

15 what percentage of the public generally currently

16 believe that low tar or light cigarettes are safer

17 than full-flavored cigarettes, do you?

18 A. Not the specific percentage.

19 Q. And do you know what percentage of the

20 public in Illinois believes that low tar or light

21 cigarettes are safer than full-flavored cigarettes?

22 A. Not a specific percentage.

23 Q. Now, do you know what percentage of the

24 class members believe that low tar or light cigarettes






 138




1 are safer than full-flavored cigarettes?

2 A. Would be the same answer.

3 Q. Do you know what percentage of the class

4 members in this case believe that low tar cigarettes

5 are safe?

6 A. I don't have the specific percentage.

7 Q. You also don't have any information, do

8 you, Doctor, as to the age, gender, ethnicity, or

9 social economic status of the class, correct?

10 A. I have no specific information about

11 that, correct.

12 Q. You agree, don't you, Doctor, that

13 smokers differ in their reasons for choosing low tar

14 brands?

15 A. Yes, I'll agree that there can be

16 multiple reasons, and they don't all share the same

17 weighting of those reasons.

18 Q. And you don't know what percentage of the

19 class members in this case switched to low tar

20 cigarettes because they believe them to be healthier

21 than full-flavored cigarettes?

22 A. I believe that it's 100 percent except

23 for those individuals who have some sort of a death

24 wish.






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1 Q. Okay.

2 MR. McCONNELL: Can we get Dr. Cialdini's

3 deposition from July 22nd. Page 80, lines five

4 through nineteen.

5 MR. BRICKMAN: What page, Counsel?

6 MR. McCONNELL: I'm sorry. Page 80.

7 MR. McCONNELL: May I approach, your Honor?

8 THE COURT: Sure you may.

9 Q. Doctor, referring you to page 80,

10 starting at line five. Do you have that in front of

11 you?

12 A. Yes.

13 Q. I just want to confirm that this was

14 asked and this was what your answer was:

15 "QUESTION: What percentage of the class

16 members in this case, Doctor, switched to

17 low tar cigarettes because they believed

18 them to be healthier than full-flavored

19 cigarettes?

20 ANSWER: That's a question I can't -- it

21 says asked -- because it assumes that

22 there's one cause that move people in that

23 direction. I don't believe that's the

24 case. I believe there are a number of






 140




1 factors that work in any decision that

2 people make. But, I do believe that one of

3 those factors was the implication that such

4 a switch to light brand cigarettes would be

5 healthier."

6 MR. TILLERY: Excuse me.

7 Q. Just let me finish it.

8 "QUESTION: For what percentage of class

9 members in this case was the perception

10 that low tar cigarettes are healthier a

11 factor as a reason why that class member

12 switched from full-flavored cigarettes

13 to light cigarettes?

14 ANSWER: I don't know their exact

15 percentage."

16 Now you do know the exact percentage, and

17 it's a hundred percent?

18 A. No.


9 Q. Doctor, do you know whether smokers'

10 attitudes toward low tar cigarettes have changed over

11 time?

12 A. I don't know.

13 Q. Do you know whether members of the class,

14 their attitudes toward low tar cigarettes as to

15 whether or not they're actually safer, have changed

16 over time?

17 A. I don't know that.

18 Q. Do you know whether low tar is as

19 important an issue to smokers today as it was in the

20 past?

21 A. I don't know for sure.

22 Q. Do you know to what extent, Doctor,

23 members of the class in this case switched to Marlboro

24 Lights as opposed to starting to smoke Marlboro






 143




1 Lights?

2 A. No.

3 Q. Do you know what percent of class members

4 who smoked Cambridge Lights had, prior to smoking

5 Cambridge Lights, smoked some other light brand?

6 A. I don't know that.

7 Q. And isn't it true you also don't know the

8 extent to which Philip Morris' marketing, the things

9 that Mr. Tillery showed you, induced somebody to

10 switch to Marlboro -- I'm sorry, to Cambridge Lights

11 and that that marketing had an effect in getting

12 people to switch by emphasizing that the brand was

13 cheaper as opposed to being healthier?

14 A. I don't know the percentage who have been

15 influenced by price.

16 Q. And Mr. Tillery pointed you to some

17 language on the Marlboro Lights package, lower tar and

18 nicotine. You don't even know, do you, Doctor, to

19 what extent class members even noticed those words on

20 the package?

21 A. I don't know for sure. I wasn't there.

22 But, the fact that they were on every package and the

23 fact that they had to use the term light to even

24 request a purchase of the product tells me that they






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1 registered the term light.

2 Q. Now, to determine how class members

3 responded to any marketing for light cigarettes,

4 wouldn't you need to look at a number of factors? I'm

5 going to list a few, and you tell me if you would

6 agree or not. Number of exposures, existence of

7 competing or conflicting messages, cognitive versus

8 emotional content, and extent to which the recipient

9 was to believe the message -- wanted to believe the

10 message, I'm sorry.

11 A. Yes.

12 Q. And the effect of those factors on the

13 class members in this case has not been tested by you

14 or by anybody else, isn't that true?

15 A. If you're talking about the marketing, I

16 haven't even testified about marketing. I've

17 testified about the language on the package.

18 Q. That's what I meant. I'm sorry, Doctor.

19 A. Does that include the marketing?

20 Q. Yes. So, with that clarification. I

21 apologize for that.

22 A. Yes.

23 Q. That hasn't been tested, has it?

24 A. Not explicitly. It's been tested in






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1 other situations, how those factors influence

2 decisions, but not with this class.

3 Q. Doctor, what evidence have you seen in

4 terms of data that shows that the perceptions of light

5 cigarettes by members of the class is congruent in any

6 way with the perceptions of light smokers nationwide?

7 A. I haven't seen that comparison.

8 Q. And another point, Doctor. Isn't it true

9 that any one consumer might not be representative of

10 the larger body of consumers who saw certain marketing

11 communications?

12 A. True. Any one consumer may not be at the

13 mean, or the central tendency, for --

14 Q. Or any three?

15 A. Well, I could -- I could pick three that

16 would be. But, if I picked three randomly, I could be

17 very confident that they were at the center.

18 Q. Okay. Now, Doctor, you've written that

19 there could be a difference among people in terms of

20 their receptivity to certain weapons of influence,

21 correct?

22 A. Yes.

23 Q. And, for example, I think that you've

24 written in the past and testified in the past that






 146




1 elderly persons tend to be more susceptible to appeals

2 of consistency, is that right?

3 A. Yes.

4 Q. And you've also stated that there can be

5 differences among various ethnic groups in terms of

6 the way they respond to various weapons of influence?

7 A. I don't recall that; but, yes, as

8 national groups, we've done some research on different

9 nationalities.

10 Q. And Mr. Tillery asked you about a book

11 that you wrote, a textbook called Social Psychology,

12 Unraveling the Mystery, right?

13 A. Yes.

14 Q. And you've got a chapter there in that

15 book entitled Different Persons Respond Differently to

16 the Same Situation, correct?

17 A. It's a sub-title.

18 Q. And you agree with that sub-title?

19 A. Yes.

20 Q. And you found also in your research,

21 Doctor, that people differ in their preference for

22 consistency, don't they?

23 A. Yes.

24 Q. You even have a phrase -- I guess it's an






 147




1 initialization as opposed to an acronym -- it's called

2 PFC?

3 A. Yes.

4 Q. It means preference for consistency,

5 right?

6 A. Yes.

7 Q. And then you found that some people have

8 a high preference for consistency and some people have

9 a low preference for consistency, right?

10 A. True.

11 Q. You certainly don't assume that everybody

12 has a high preference for consistency, do you?

13 A. I don't assume that.

14 Q. And you certainly don't assume that the

15 members of the class uniformly from a high preference

16 for consistency, do you?

17 A. Not uniformly.

18 Q. Okay. Is there a concept of social

19 psychology called self-monitoring?

20 A. Yes.

21 Q. What is that?

22 A. It has to do with the extent to which

23 people decide what they should do based on what those

24 around them seem to be valuing versus what their own






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1 internal standards suggest they should do.

2 Q. And your research has shown, hasn't it,

3 Doctor, that people actually differ in terms of their

4 extent of self-monitoring?

5 A. I haven't done any research on self

6 monitoring.

7 Q. Have you seen other research and agree

8 with other research that people differ in terms of

9 self-monitoring?

10 A. Yes.

11 Q. And in fact, you've referred to some

12 people as being high self-monitors, correct?

13 A. I have -- I know -- I know the

14 designation, yes.

15 Q. Doctor, would you agree that no matter

16 how much information is put into the marketplace,

17 there is going to be some percentage of people who are

18 not going to be informed?

19 A. Are not going to be informed, did you

20 say?

21 Q. Yes.

22 A. If you're talking about marketing

23 information that may come from sources like ads and

24 reports from the Surgeon General and so on, I would






 149




1 agree. If you're talking about something like what --

2 what appears on every pack of cigarettes that people

3 buy, then I'm going to opine that they will be

4 influenced by the language on that pack.

5 Q. Now, you agree, don't you, Doctor, that

6 there are a variety of reasons why people begin to

7 smoke?

8 A. Yes.

9 Q. And you also agree that there are a

10 variety of reasons why people continue to smoke?

11 A. Yes.

12 Q. And there are also a variety of reasons

13 why people quit smoking?

14 A. Yes.

15 Q. I guess that sort of follows. In your

16 writing where you've talked about weapons of

17 influence, you've never contended, have you, that a

18 particular weapon of influence will work on everybody?

19 A. That's correct.

20 Q. And isn't it also the case, Doctor, that

21 it's possible to obtain compliance from somebody even

22 without resorting to a weapon of influence?

23 A. Certainly.

24 Q. In fact, what you've done in your






 150




1 research to show how powerful a weapon of influence is

2 is you've shown that a weapon of influence has worked

3 by showing what happens when it's not used, and then

4 you get a baseline of compliance. If it's not used, a

5 certain amount of people say yes?

6 A. Yes.

7 Q. Then you go and see what happens when it

8 is used, and you see the increase, right?

9 A. Yes.

10 Q. So, there's some baseline of people who

11 are going to comply even in the absence of a weapon of

12 influence?

13 A. Well, it depends what -- what was part of

14 the request in the control group that didn't get the

15 weapon of influence. So, what you find is that a

16 number of people will say yes to a request if they're

17 asked by a -- nicely, let's say, to contribute to a

18 cause. And then a larger number will say yes if

19 they've previously signed a petition in favor of that

20 cause. But, it doesn't mean that no weapon of

21 influence was used to get those in the control group

22 to say yes. Things like liking would apply.

23 Q. So, applying what you just said to this

24 case, what that means is, even assuming your testimony






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1 that Philip Morris USA somehow used these weapons of

2 influence, that even if Philip Morris USA had not used

3 any of those weapons of influence, that a certain

4 percentage of members of the class would have

5 purchased Marlboro Lights or Cambridge Lights,

6 correct?

7 A. I don't believe that.

8 Q. You believe nobody would have purchased

9 Marlboro Lights or Cambridge Lights, is that right?

10 A. Could you begin the question? I think

11 no-one would have purchased Marlboro Lights or

12 Cambridge Lights but for the representation that they

13 provided health benefits.

14 Q. Let's try this. What percentage of the

15 members of the class in this case would have complied

16 using your notion of compliance? That is, that would

17 have bought Marlboro Lights or Cambridge Lights even

18 absent any of the weapons of influence that you've

19 talked about?

20 A. None.

21 Q. Okay. Can we take a look --

22 THE COURT: Your answer was done?

23 THE WITNESS: Yes.

24 Q. All right. I want to have you look at






 152




1 your deposition. I think you still have it in front

2 of you. It's pages 114 to 115, Doctor.

3 A. Let me just qualify that the way I always

4 qualify it, except for people who might have a death

5 wish.

6 Q. Okay. Well, let's see what you said

7 about that or the death wish in the prior deposition.

8 If we could look at page 114, line 13. We can start

9 there. It's going to go on over to the next page,

10 too. Let me know when you have that, Doctor.

11 A. I see page 113.

12 Q. One fourteen, I'm sorry. Page 114. At

13 line 13 on page 114, the question is:

14 "So, it's the case, isn't it, that here

15 specifically, even if, let's assume that you

16 were right, that Philip Morris has used

17 these weapons of influence in marketing

18 Marlboro Lights and Cambridge Lights, that

19 even if those weapons of influence hadn't

20 been used, there would still be some level

21 of compliance by members of the class,

22 correct?

23 ANSWER: I would assume that any well-

24 marketed product would produce some sort of






 153




1 response from the class, but that by

2 employing these additional levers, one

3 enhances significantly the effectiveness of

4 the campaign.

5 QUESTION: What percentage of the members of

6 the class in this case would have complied

7 using your notion? That is, would have

8 bought Marlboro Lights or Cambridge Lights

9 even absent any of the weapons of influence

10 that you talk about in your disclosure?

11 ANSWER: I can't say that. I can say it

12 would be a substantially smaller number in

13 my opinion."

14 Now, actually the question I asked you

15 earlier, I read from that depo. I asked you the exact

16 same question, didn't I, Doctor?

17 A. Well, I may have misunderstood. I

18 answered the question that I thought no individual

19 would choose the product, all right, on the basis of a

20 lack of association with health. And that's how I

21 understood your question. And that's the way I

22 answered here now.

23 Q. Well, earlier you said a substantially

24 smaller number, but now you're saying zero except for






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1 those suicidal people?


10 Q. All right. Well, Doctor, the fact is you

11 don't know how many class members were misled in any

12 way by Philip Morris ads for Marlboro Lights or

13 Cambridge Lights, do you?

14 MR. TILLERY: Excuse me. Ads? I object to

15 this.

16 MR. McCONNELL: I'm sorry. You're right.

17 Absolutely let me fix that.

18 THE COURT: Yes.

19 Q. You don't know how many class members

20 were misled in any way by the marketing communications

21 that Mr. Tillery showed you on direct exam, do you?

22 A. If you're asking misled, I'm not even

23 testifying to that. So, I don't know.

24 Q. Let me ask you a hypothetical, Dr.






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1 Cialdini. Assume that we have a member of the class

2 who is in fact an attorney, who has even worked on

3 tobacco cases for plaintiffs. They're fully aware of

4 everything that you're aware of, maybe even more,

5 about low tar cigarettes. But, that person decides to

6 start smoking Marlboro Lights. Is that somebody who

7 is deceived?

8 A. Who decides to start smoking Marlboro

9 Lights?

10 Q. Correct.

11 MR. TILLERY: And the assumption is they knew

12 everything?

13 MR. McCONNELL: That's right. Well, they

14 know what you know. I don't know if that's everything

15 or not.

16 A. I would say -- let me ask a question

17 again for clarification. Been deceived about the

18 health consequences?

19 Q. Been deceived by Philip Morris. Sure.

20 A. And they know everything I know, is that

21 the premise?

22 Q. That's right.

23 A. I'm not claiming to know that Philip

24 Morris is less healthy. So, I don't know how to






 156




1 respond to that question.

2 Q. Similarly, if there's somebody who has

3 heard everything that's been said in this courtroom

4 about this case, they go out to a bar tonight, they

5 see that everybody around them is smoking Marlboro

6 Lights, and they decide to smoke a Marlboro Light, are

7 they somebody who is deceived?


20 Q. So, I want you to assume that, again,

21 there's somebody who knows everything about light

22 cigarettes that you know and knows whatever -- well,

23 you've read -- you've actually read the depositions of

24 Dr. Burns, is that right?






 157




1 A. I have.

2 Q. Okay. So, let's assume this person had

3 read that deposition, read the declaration of Dr.

4 Burns.

5 A. Yes.

6 Q. Now they go out to a bar, and everybody

7 else is smoking Marlboro Lights. They light one up.

8 Were they deceived? Did they fall prey to a weapon of

9 influence?

10 A. If they borrow a Marlboro Light from

11 somebody, they haven't fallen victim to any weapon of

12 influence, borrowing a Marlboro Light.

13 Q. Okay. Well, let's say they bought a

14 pack.

15 A. Was it the only one available?

16 Q. No.

17 A. Okay. Then, if -- I'm not sure what they

18 believe on the basis of hearing all the evidence

19 that's been presented in this case. But, if they

20 believe that Marlboro Lights are not any more -- are

21 not any more healthy, I can't imagine the

22 circumstances on which they would choose a light if

23 they were a Red smoker to start with.

24 Q. Doctor, you talked a little bit about






 158




1 authority earlier, didn't you?

2 A. Yes.

3 Q. And you have read at least two

4 depositions of class members in this case, haven't

5 you?

6 A. Yes.

7 Q. Including the deposition of Linda

8 McHatton, is that right?

9 A. Yes.

10 Q. And when you received materials from the

11 plaintiffs' attorneys, you actually made a set of

12 notes, didn't you? You sort of summarized what it was

13 you were reading; you made your own little comments?

14 A. Yes, I did.

15 Q. And you recall, don't you, that Miss

16 McHatton said that she came to believe that light

17 cigarettes were less harmful based on a brochure she

18 read in her doctor's office?

19 A. Yes.

20 Q. And in your note that you made of that,

21 you actually in your own note, you wrote in brackets

22 next to it "Authority", didn't you?

23 A. Yes.

24 Q. And you did that because a doctor is a






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1 figure of authority, true?

2 A. Yes.

3 Q. And you've written so in the past? This

4 isn't the first time you've thought that; right?

5 A. That is correct.

6 Q. And a doctor's advice as to what to do

7 regarding one's health would be extremely persuasive

8 to most people, isn't that right?

9 A. It would. In fact, it would -- it would

10 lend credibility to Marlboro Lights' claims.

11 Q. Okay. And in talking about authority,

12 authority is linked with the concept of credibility,

13 isn't it?

14 A. Yes.

15 Q. And isn't it a fact that people perceive

16 tobacco companies to be not very credible on the issue

17 of smoking and health, isn't that true?

18 A. I haven't seen any specific information

19 about that, but I would agree with you.

20 Q. All right. I want to talk a little bit

21 bit about social proof. And we already talked about

22 one example, your book, right?

23 A. Yes.

24 Q. A quarter of a million copies sold. And






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1 that's an example of something using social proof,

2 right? I mean, you made a decision, or somebody made

3 a decision, to put that on the cover of your book,

4 right?

5 A. Correct.

6 Q. If somebody didn't put that on the cover

7 of your book, but the fact remains 250 million copies

8 had been sold -- I'm sorry, a quarter of a million.

9 You wish 250 million.

10 A. I wish.

11 Q. A quarter of a million --

12 THE COURT: He wouldn't be here testifying.

13 Q. All right. If the fact is -- and I

14 assume that that's a true fact you put on your book,

15 right?

16 A. Yes.

17 Q. That's true. All right. So, a quarter

18 of a million copies have been sold, and that's a fact,

19 but it wasn't put on your book. Would you still be

20 using social proof in marketing your book?

21 A. Would I be using it as a marketer? No.

22 Would the principle of social proof still be working?

23 Yes. Because the 250,000 people who purchased it

24 would be models for others who might say Well, if






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1 everybody else in my class bought this book, maybe I

2 will want to, too.

3 Q. Now, with respect to Marlboro Lights,

4 it's the latter situation that you're talking about,

5 not the former? In other words, when Mr. Tillery

6 showed you whatever he showed you on the Marlboro

7 Lights box, there wasn't something on the Marlboro

8 Lights box saying Number one selling brand in America,

9 was there?

10 A. No.

11 Q. It's the fact that -- this hypothetical

12 that I alluded to before -- if you go to a bar and you

13 look around at what people are smoking, a lot of them

14 are smoking Marlboro Lights, right?

15 A. Yes.

16 Q. That's the social proof that you're

17 talking about?

18 A. That's the social proof. If they

19 generated the social proof by virtue of some

20 deception, then I still consider it an inappropriate

21 use of the technique.

22 Q. But, I guess you would say that the

23 leading brand for any product is use of social proof

24 somehow?






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1 A. Yes, it is. If they announce it. And

2 social proof then -- even if they don't announce it,

3 social proof benefits them as a consequence. And I

4 think they're entitled to it.

5 Q. Social proof, that kind of goes along

6 with the idea of peer influence, is that fair to say?

7 A. That's very close to it. That is, we are

8 especially influenced not just by all others, but by

9 people who are like us. Similarly situated others.

10 Q. So, if a person's peers are using a

11 particular brand, that might influence whether that

12 person would use that same brand, true?

13 A. That would, once again, lend credibility

14 to the claims of the marketers of that brand.

15 Q. And you agree, I take it, that a lot of

16 people who smoke Marlboro Lights do so because a lot

17 of people smoke Marlboro Lights?

18 A. It's one reason.

19 Q. Do you know how many of the class members

20 in this case smoke Marlboro Lights because of social

21 proof?

22 A. No.

23 Q. If you want -- I'm going to ask you to

24 assume there's a class member who smoked Marlboro






 163




1 Lights, but this class member had a twin who smoked

2 Marlboro Lights. Are you with me so far?

3 A. Yes.

4 Q. And that class member had six sibblings

5 in all who smoked Marlboro Lights. Now, given that

6 hypothetical, do you think the fact that that class

7 member's six sibblings smoked Marlboro Lights had

8 something to do with that class member's decision to

9 smoke Marlboro Lights?

10 A. I would say it would validate the claims

11 on the pack for that individual.

12 Q. I've been talking about Marlboro Lights.

13 Now I want to talk about Cambridge Lights. Now, you

14 know, don't you, Cambridge Lights is not a very

15 popular brand?

16 A. I do know that.

17 Q. It's not a popular brand in Illinois,

18 it's not a popular brand anywhere, is it, as far as

19 you know?

20 A. My guess is -- I'm willing to assume what

21 you're saying.

22 Q. Can you tell us, how does Cambridge

23 Lights use social proof?

24 A. I'm not suggesting that it's a factor






 164




1 that plays much of a role in the purchase of Cambridge

2 Lights.

3 Q. You were asked questions by Mr. Tillery

4 about taste, the extent to which people look at taste

5 as a reason why they smoke low tar cigarettes. Do you

6 recall that?

7 A. Yes, I recall.

8 Q. And I referred earlier to the notes that

9 you made. You not only made notes about things that

10 you read in the depositions, but you made notes about

11 articles and documents that you read, didn't you?

12 A. Yes.

13 Q. You made a lot of notes on surveys that

14 either you read or that were discussed in other

15 articles, correct?

16 A. Yes.

17 Q. And isn't it a fact -- you certainly

18 didn't see a single survey, did you, where a hundred

19 percent of the people who smoked low tar cigarettes

20 said I smoke low tar cigarettes because I think

21 they're safer?


15 Q. Doctor, so you made notes of various

16 things that you read, including surveys, either

17 because you read the surveys or because you read other

18 articles that discussed the surveys, right?

19 A. Yes.

20 Q. And about how many surveys would you say

21 that you read or read about relating to perception of

22 low tar smokers?

23 A. Ten to twelve perhaps.

24 Q. Now, of those ten to twelve, you didn't






 166




1 see a single one, did you, where a hundred percent of

2 the low tar smokers said I smoke low tar cigarettes

3 because I think they're safer?

4 A. I did not.

5 Q. In fact -- in fact, you didn't see one

6 where more than 50 percent of the respondents said I

7 smoke low tar cigarettes because I think they're

8 safer?

9 A. I have seen one.

10 Q. Which one was that?

11 A. It's not --

12 THE COURT: Well, no. Here. I'll let you

13 just skirt on this, because then we get in -- if we

14 start this line, then you're going to have to call him

15 as your witness. But, I'm going to let you gloss over

16 this for whatever other purpose you need in relation

17 to your cross examination. Otherwise, we get into

18 other extrensic matters concerning the surveys.

19 MR. McCONNELL: I agree with you.

20 THE COURT: Okay.

21 Q. All right. Now, you do agree, don't you,

22 that people who smoke full-flavored cigarettes do so

23 for taste, right?

24 A. I think it's one of the reasons they do.






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1 There are probably other reasons as well. Cost.

2 Q. I want to try out a hypothetical that Mr.

3 Tillery used, and I just want to change it a little

4 bit. Mr. Tillery talked about, let's assume there's a

5 so-called real Marlboro Light as opposed to the

6 Marlboro Lights we have now. It's identical -- I

7 think he said it's identical in every respect except

8 that it actually does deliver less tar. First of all,

9 do I have that right?

10 THE COURT: I'll give you that. Go ahead.

11 Q. And the question was How many people

12 would smoke the current Marlboro Lights as opposed to

13 the so-called real Marlboro Lights that's the same in

14 every respect except safer, okay?

15 A. Yes.

16 Q. And I think your answer was you'd expect

17 pretty much everybody is going to smoke the Marlboro

18 Lights that's the same in every respect except it

19 actually delivers less tar, right?

20 A. Pretty much everybody.

21 Q. I'm going to change the hypothetical.

22 Same hypothetical, but this so-called real Marlboro

23 Lights, it doesn't taste very good. It tastes less

24 good than the current Marlboro Lights. Now, with that






 168




1 change in the hypothetical, how many people would

2 smoke which cigarette?



3 A. And I will need to hear the question

4 again.

5 Q. Sure. I just want to give you the same

6 hypothetical that Mr. Tillery did except that this

7 so-called real Marlboro Lights that really does have

8 less tar, that it tastes less good than the current

9 Marlboro Lights.

10 A. Yes.

11 Q. Given that, are you able to tell us how

12 many people would smoke the so-called real Marlboro

13 Light as opposed to the current Marlboro Lights?

14 A. Not to an exact percentage; but, because

15 I think taste is one factor that plays a role, I would

16 expect fewer people to choose the one that tasted not

17 as good.

18 Q. How many people?

19 A. I don't know.

20 Q. Doctor, if there were no Marlboro Lights

21 and there were no Cambridge Lights, to what extent

22 would members of the class in this case have not

23 smoked at all, have smoked some other low tar

24 cigarette, have smoked full-flavored cigarettes? Do






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1 you have any opinion on that?

2 A. My opinion is the members of the class

3 would have most likely smoked another low tar

4 cigarette.

5 Q. Now, you talked before about Pavlovian

6 conditioning, is that right?

7 A. Yes.

8 Q. That's the dog that salivates when it

9 hears the bell?

10 A. Yes.

11 Q. Okay. And the fact is you don't have any

12 knowledge as to what percentage of the class members

13 smoked light cigarettes, Marlboro Lights or Cambridge

14 Lights, as a result of this Pavlovian conditioning?

15 A. I do know that that conditioning works on

16 everyone, and so I am able to assume that it applies

17 to everyone in the case.

18 Q. So, if you take away the Pavlovian

19 conditioning that you talk about in this case, how

20 many of the class members would have smoked Marlboro

21 Lights or Cambridge Lights?

22 MR. TILLERY: Excuse me. That's not a proper

23 hypothetical, to ask him to assume that people don't

24 have association.






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1 THE COURT: Well, I want to see how adept he

2 is at articulating that complex.

3 MR. TILLERY: Well, he's asking him to assume

4 people aren't people.

5 THE COURT: Well, I'm going to overrule you

6 and see if he can answer it.

7 A. Yes. If they are not associating

8 Marlboro Lights with taste -- or excuse me, with

9 health, that is, the principle of association does not

10 apply to them, I'm going to assume that they will not

11 choose Marlboro Lights.

12 Q. You've said --

13 THE COURT: Well, okay. I'm glad I let him

14 answer the question. Go ahead.

15 Q. All right. Now, you -- you said in your

16 direct testimony that Pavlov's principles apply to

17 everyone, correct?

18 A. Yes, at some level.

19 Q. But, not every smoker who sees a Marlboro

20 Lights package decides to smoke Marlboro Lights,

21 correct?

22 A. Correct.

23 Q. And not every smoker of Marlboro Reds who

24 sees a Marlboro Lights package decides to smoke






 172




1 Marlboro Lights, correct?

2 A. Correct. Because it's not the only

3 factor that makes the decision.

4 Q. You haven't seen any study, have you, any

5 peer reviewed study, that supports this notion that

6 low tar smokers smoke because of some sort of

7 Pavlovian conditioning?

8 A. I haven't seen any studies.

9 Q. And you've talked about this idea of

10 somebody chooses a particular brand because they value

11 a particular attribute, like health, right? Is that

12 right?

13 A. Yes.

14 Q. But later they then undervalue that

15 attribute and start to overvalue another, right? Have

16 I kind of generally captured what it is you're talking

17 about when you're talking about this Pavlovian

18 conditioning and how it affects smokers of low tar

19 cigarettes?

20 A. That doesn't apply to association.

21 Q. Okay.

22 A. Overvaluing or undervaluing.

23 Q. All right. The example you give in your

24 book -- I guess this really goes along with commitment






 173




1 and consistency also. The example you give in your

2 book is I go to a horse track, and I'm going to bet on

3 a horse, and I don't really have that strong of

4 feeling about the particular horse. But, then I bet

5 on that horse. And after I bet on that horse, I

6 really think that horse is the one that's going to

7 win, right?

8 A. Yes. There's research to say that people

9 increase their likelihood of winning once they put

10 their money down.

11 Q. So, before I bet on that horse I begin to

12 develop a feeling that that's a fast horse. So, I bet

13 on it. Now I really think it's a fast horse. I

14 really think it's going to win. Right?

15 A. Yes.

16 Q. Now, the analogy for light cigarettes is

17 -- you're saying the reason somebody chooses a low

18 tar cigarette is because I think it's safer. The

19 analogy would be, wouldn't it, if I choose the

20 cigarette initially because I think it's safer, and

21 now after I've made the commitment, I really think

22 it's safer, right?

23 A. I do think it's safer, yes. And I also

24 think it tastes better.






 174




1 Q. So, if anything -- if anything in the

2 polls, in the surveys that you looked at, that asked

3 people why they smoked light cigarettes, if anything,

4 they should overvalue the issue of safety, shouldn't

5 they?

6 A. Not necessarily. Not when they've now

7 come accustomed to the taste of the cigarette, now

8 they're going to overvalue taste.

9 Q. Doctor, it's your opinion, isn't it, that

10 if a customer has full information, that the customer

11 is the one who has to decide whether the product is

12 good or bad?

13 A. I'm sorry. You need to repeat that

14 question for me.

15 Q. If a customer has full information, the

16 customer him or herself has to decide whether

17 something is detrimental to his well-being?

18 A. Are you asking me the legal?

19 Q. No; your opinion as somebody who talks

20 about influence. In the end, if you have information,

21 you're the one who has got to decide whether or not

22 something is good for you?

23 A. It sounds to me like you're asking me to

24 make a legal judgment here about whether it's my






 175




1 responsibility given full information to now decide

2 whether there are -- there are no other factors that

3 should play a role in here, like regulation or

4 something of that sort, and I just don't feel

5 competent to make that decision.

6 Q. Can't answer it. Okay.

7 MR. McCONNELL: I have no further questions,

8 your Honor. Thank you. Thank you, Doctor.

9 THE COURT: Re-direct.

10 MR. TILLERY: Yes.

11 RE-DIRECT EXAMINATION

12 BY MR. TILLERY:

13 Q. Dr. Cialdini, do variations in age of the

14 various class members cause people to regard health --

15 I'm sorry, let me rephrase that. Do variations in age

16 of the class cause people to reject health as a

17 positive factor in their decision making?

18 A. Not that I can think of, no.

19 Q. Would variations in socioeconomic status

20 cause people to reject health as a positive

21 influencing factor in their decision making?

22 A. No.

23 Q. Would whether they live in Chicago or

24 Lawrenceville or Springfield, Illinois or Belleville






 176




1 or any other part of the state, would the variations

2 in where they live cause them to reject one over

3 another health as a positive factor in their decision

4 making?

5 A. Not in my opinion.

6 Q. You indicated that you thought

7 association runs throughout this whole class. Could

8 you explain that point to the Court.

9 A. Well, association is a process of

10 deciding that is universal to human experience. And

11 I've also said that health and a positive orientation

12 toward personal health is universal except for a small

13 percentage, a very small percentage of individuals.

14 And so, those two things seem to me to be

15 characteristic of the issues in the case and the

16 class.

17 Q. You've never contended at any time, have

18 you, that looking at this package of cigarettes --

19 going into a grocery store, a Wal-Mart, or a gas

20 station -- that class members invariably limited their

21 purchase decision to the words lower tar and

22 nicotine: Give me that lower tar and nicotine

23 cigarette? You've never said that, have you?

24 A. No.






 177




1 Q. You've never said that they've looked at

2 the word light and said it had to be limited to that

3 word light as an exclusive factor for making their

4 decision, have you?

5 A. No.

6 MR. McCONNELL: Object to the leading.

7 THE COURT: Overruled.

8 Q. Now, there are a number of variables,

9 aren't there?

10 MR. McCONNELL: Objection. Leading.

11 THE COURT: Overruled.

12 A. There are multiple variables that apply

13 to any consumer choice.

14 Q. And the choice of a cigarette is probably

15 no different, is it?

16 MR. McCONNELL: Objection. Leading.

17 Q. Or is the choice of a cigarette any

18 different?

19 A. Not in my opinion.

20 Q. And --

21 A. That there are multiple factors that made

22 a difference.

23 Q. And in spite of those multiple factors --

24 let's look at some of them -- taste, price, whatever






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1 -- is health -- the claim light, Marlboro Lights and

2 Cambridge Lights, the claim lower tar and nicotine for

3 Marlboro Lights, is that implicit in your view, in

4 your opinion, as a positive health feature in every

5 single class member in this whole class in their

6 purchase of these cigarettes?

7 A. It has to be.

8 Q. Tell us why it has to be.

9 MR. LOMBARDI: Objection. Foundation, your

10 Honor. I think it goes back to our standing objection

11 as well.

12 THE COURT: Yeah. Overruled.

13 A. Yes. And I would once again point to the

14 two universals that I have indicated. One is the

15 process of association and the other is the positivity

16 of prudent self-interest and health. Those things are

17 universals. And so, they -- I think that's why they

18 are a part of everyone's decision-making process here.

19 Q. You were asked about your deposition.

20 You remember the part where you were asked this

21 question, and the opposing Counsel asked you a

22 question about the exact percentage of those people.

23 You said I don't believe there are -- I believe there

24 are a number of factors that work in any decision that






 179




1 people make, but I do believe that one of those

2 factors was the implication that such a switch to

3 light brand cigarettes would be healthier.

4 A. Yes.

5 Q. That's what you said?

6 A. Yes.

7 Q. Is that what you believe?

8 A. Yes.

9 Q. And when he asked the specific

10 percentage, he said the percentage, what were you

11 referring to?

12 A. I was referring to -- well, can you

13 re-read the question, because I recall.

14 Q. Yeah. You've indicated throughout that

15 there are people other than people with a death wish

16 --

17 A. Yeah.

18 Q. That those people --


5 Q. The point is this, sir: Are you able to

6 specify the exact percentage of those people who might

7 look at the world in some peculiar way and disregard

8 health as a positive attribute?

9 A. I have never said that I could identify

10 100 percent. I said -- I've always said nearly 100

11 percent, because there's some unknown quantity of

12 individuals who have this death wish or desire for

13 suicide, and I don't know what that percentage is.

14 And so, in response to the, what seemed to be an

15 inconsistency in my previous testimony, I was

16 referring to the fact that I can't know that

17 percentage for sure. I just don't know it. But, I've

18 always said it's very very small. But, I don't know

19 it for sure.

20 Q. And when you say very very small, you're

21 talking about that limiting it to those people who may

22 simply not ascribe for one reason or another to the

23 belief that health is positive?

24 A. Yeah.






 181




1 MR. McCONNELL: Objection. Leading.

2 THE COURT: All right. It is leading, but

3 obviously he's going to ask it in such a way he's

4 going to get the same response. Let's get on with

5 this. Overruled.

6 A. You know, there are people who believe

7 the earth is flat.

8 THE COURT: Wait a minute. Is there a

9 question?

10 MR. TILLERY: Yes. He's answering.

11 THE COURT: Oh, all right. Go ahead.

12 A. It's like that. It's that sized

13 percentage.

14 Q. All right.

15 A. It's vanishingly small given --



4 Q. Can you answer?

5 A. I'll need the question.

6 Q. All right. What I'm saying is is that

7 irrespective of what you heard in terms of survey

8 questions, whatever you were asked on cross

9 examination, does the word light, do the words lower

10 tar and nicotine, convey to every member of the class

11 in your opinion to a reasonable degree of certainty

12 the connotation of light, and does that connotation

13 play a role in every consumers' decision to purchase

14 these products?


24 A. It's two questions, and I would like to






 183




1 answer each.

2 Q. All right.

3 A. And that is I believe that every member

4 of the class associates light and lower tar and

5 nicotine with the concept of health and that nearly

6 everyone, except for that small percentage that I've

7 referred to in the past, relies on that percentage --

8 on that association as one factor in making their

9 decision.

10 MR. TILLERY: Thank you very much.

11 THE COURT: Re-cross?

12 MR. McCONNELL: No.

13 THE COURT: Are we done with this witness?

14 MR. TILLERY: We are, your Honor.

15 THE COURT: All right. Thank you very much,

16 Doctor. You'll be excused. I guess we could break

17 for lunch here.