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02 JOEL BENJAMIN COHEN,
03 called as a witness on behalf of the Plaintiffs, being first
04 duly sworn, was examined and testified as follows:
05 DIRECT EXAMINATION
06 BY MR. TILLERY:
07 Q. Sir, would you state your name for the record
08 please?
09 A. Joel Benjamin Cohen.
10 Q. And where do you live?
11 A. Gainesville, Florida.
12 Q. What is your employment?
13 A. I am a professor at the University of Florida.
14 Q. You say you are a professor. Are you in fact the
15 Distinguished Service Professor of Marketing at the
16 University of Florida?
17 A. Yes.
18 Q. And could you tell the Court what that title means?
19 A. Most universities have special ranks above the
20 standard assistant, associate, full professor ranks which
21 they reserve for particular members of the faculty and the
22 University of Florida one of these special titles is
23 Distinguished Service Professor.
24 Q. And you are also Adjunct Professor of Anthropology?

Page 44

01 A. Correct.
02 Q. Now could you tell us about your educational
03 background, sir?
04 A. I have a Bachelor's Degree in Business
05 Administration, an MBA from UCLA and my Ph.D. is also from
06 UCLA with a specialization in Marketing and a minor
07 essentially in Social Psychology.
08 Q. What was your doctoral dissertation? What was the
09 subject of that?
10 A. Oh, it's a long time ago: Interpersonal Response
11 Traits and Consumer Behavior.
12 Q. Have you always had an interest in consumer
13 behavior and social psychology and marketing and the mix or
14 intertwining of those disciplines?
15 A. Yes. Well, that's what consumer behavior is. The
16 field of consumer behavior really started in the mid 1960's.
17 I guess I am either considered a dinosaur or considered one
18 of the founders of the field of consumer behavior, and
19 consumer behavior represents an amalgam of marketing
20 economics, psychology, anthropology, sociology. And there is
21 a sub▴field which has grown up also more recently called
22 consumer psychology which is now a major academic field.
23 And so most people consider me a consumer
24 psychologist as well as a consumer behavior and marketing

Page 45

01 person.
02 Q. And have you taught courses in psychology as well,
03 consumer psychology?
04 A. Yes, I have taught a number of courses, both at the
05 University of Illinois and University of Florida in those
06 areas.
07 Q. Let's talk about your teaching experience. Would
08 you walk the Court through briefly the experience you have
09 had as a professor?
10 A. While I was receiving my Ph.D. training at UCLA I
11 taught courses there and then afterwards occasionally, but my
12 first full time employment as a professor was at the
13 University of Illinois from 1966 to 1972.
14 Then after a brief stint in industry I went to the
15 University of Florida as Chairman of the Marketing Department
16 in 1974. I became director of the Center for Consumer
17 Research there in 1975, and I have remained at the University
18 of Florida teaching various doctoral level and undergraduate
19 courses, all dealing with consumer behavior since then.
20 Q. You said that you have been the Director of the
21 Center for Consumer Research. Could you explain to the Court
22 what that is?
23 A. When I came to the University of Florida in 1974 I
24 reached an understanding with the Dean before taking the

Page 46

01 position and my goal which he endorsed was to make the
02 University of Florida a center of excellence in the study of
03 consumer behavior and possibly the best department in the
04 Country.
05 And I told him that I thought it was important to
06 have a Center for Consumer Research that was associated with
07 the work in the department that would help to bring in the
08 best faculty and track funding.
09 So the President of the University agreed, set up a
10 Center, appointed me as director and it helped substantially
11 in our efforts to become the department that I think is now
12 recognized as probably the single best department in the
13 country in consumer behavior.
14 Q. What is it that you do at the Center for Consumer
15 Research? What types of projects have you become involved
16 in?
17 A. The University has several different kinds of
18 centers. The Center for Consumer Research was never
19 envisioned as a big Center -- with a capital C -- that would
20 go out and have a budget and run studies. It became an
21 organizing vehicle for faculty across campus, from
22 psychology, economics, marketing to come together for
23 workshops. We would invite people from other universities,
24 distinguished scholars to give talks.

Page 47

01 We put out a working paper and reprint series. It
02 was a center which facilitated scholarships.
03 Q. If you could tell the Court in the years ▴▴ and you
04 have been teaching for a number of years, haven't you,
05 college level?
06 A. Many, many.
07 Q. All right. Could you with reference to marketing
08 and social psychology matters, could you explain the types of
09 courses that you have taught over the years that relate to
10 those subjects?
11 A. Because of other people on the faculty, other
12 people on the faculty were brought in to handle some of the
13 more traditional marketing management courses I was able to
14 focus almost exclusively on cutting edge consumer behavior
15 issues.
16 So I would offer doctoral seminars dealing with how
17 consumers make decisions, how consumers process information
18 and basically trying to understand how consumers think and
19 perceive the world. So that's what I focused on, and to do
20 that in those courses I would bring together research
21 articles in cognitive psychology, social psychology and
22 related fields and dovetail them into the study of consumer
23 behavior, consumer decision making.
24 Q. Would it be fair to say that you are ▴▴ virtually

Page 48

01 your entire professional career has involved as sort of the
02 major interest why consumers make the decisions they make?
03 A. Yes, that's quite true.
04 Q. Have you published in the field of consumer
05 behavior, marketing, social psychology?
06 A. Certainly in all those areas.
07 Q. And I have a copy of your Curriculum Vitae here,
08 and I am not going to go through all of these but I think
09 it's important for the Court that I explain ▴▴ that you
10 explained the type of work that you have done over the years
11 and the types of research that you have engaged in so the
12 Court is aware of the depth of your knowledge of the subject.
13 Let's go through some of these in terms of book
14 chapters or publications. Have you written in ▴▴ on the role
15 of personality and consumer decisions?
16 A. My doctoral dissertation basically dealt with
17 personality theory, and so some of my earliest writings dealt
18 with the role of personality in consumer decision making.
19 Q. And I am referencing another article here: Toward
20 the Integrated Use of Expectancy Value Attitude Models?
21 A. That has represented a major research thrust of
22 mine for many, many years. I think that model is
23 particularly important as applied to consumers' choice of
24 light cigarettes, and so I think later on if I would be

Page 49

01 allowed to do so I would like to explain how that
02 particularly fits in.
03 Q. And you have written on the Structure of Product
04 Attributes, Defining Attribute Dimensions for Planning and
05 Evaluation?
06 A. Right.
07 Q. What is that type of research?
08 A. That was an American Marketing Association
09 Conference. I think it was around 1979, and marketing field
10 was trying to understand the relationship between the product
11 attributes and consumer choice. And I was among the people
12 at that time who was making the point that people really
13 don't desire attributes, they desire benefits.
14 And consumers in fact will make an inference from
15 an attribute to a benefit almost without thinking about it
16 because consumers don't care about the attribute. They want
17 what the attribute gives them ▴▴ the benefit ▴▴ so I was
18 explaining how one could build a model and measure the degree
19 to which a consumer in a given product category would come to
20 like and develop a favorable attitude toward a product based
21 upon the degree to which the product had an attribute and
22 delivered a resulting benefit.
23 That may have been way too complicated. I am
24 sorry.

Page 50

01 Q. We will come back to that. I am going to ask you
02 some questions specifically. You authored an article
03 entitled, Charting a Public Policy Agenda for Cigarettes.
04 We haven't gotten into it much, but you have had
05 extensive background dealing with the attitudes of smokers,
06 haven't you?
07 A. I have been studying the cigarette industry since
08 probably 1980 and have written a number of papers and book
09 chapters and done some other work as well.
10 Q. While we are on the topic of your writings, are
11 there journals in these fields? And I want to make sure we
12 point out that you are really working out of two separate
13 disciplines in terms of marketing and social psychology.
14 Would you explain to the Court your role either as
15 an editor or on editorial boards that involve both of these
16 disciplines?
17 A. The preeminent journal in consumer behavior is the
18 Journal of Consumer Research, and I have been a member of
19 that Editorial Board since 1974. And that Journal basically
20 is at the cutting edge of the intersection between marketing
21 consumer behavior and psychology.
22 I am currently the editor of the Journal of Public
23 Policy in marketing. That is the American Marketing
24 Association Journal which is their premiere journal for

Page 51

01 publications that deal with public policy implications of
02 marketing practices and so it brings together economics,
03 marketing and the other social sciences in order to evaluate
04 the impacts on consumers and on society of marketing
05 activities. And I am currently the editor of that Journal.
06 I have been on the Editorial Board of the Journal of
07 Marketing and I have been on a number of other Editorial
08 Boards as well.
09 Q. Were you the first elect President of the
10 Association for Consumer Research?
11 A. Yes.
12 Q. Was that 1972?
13 A. Right. The ▴▴ that was an honor and the
14 Association for Consumer Research was founded in 1969 and has
15 now grown to be the very large interdisciplinary organization
16 across the world of basically everyone who studies consumer
17 behavior, certainly in an academic setting and also in
18 government and many people in industry and I was chosen to be
19 its first President.
20 Q. Now, there is a document or publication called the
21 Annual Review of Psychology?
22 A. Yes.
23 Q. And in spite of the fact it's the Annual Review, is
24 it published annually?

Page 52

01 A. It is published annually. Basically the field of
02 psychology is so broad, has so many sub▴disciplines and areas
03 that they assign the honor basically of writing chapters
04 which we view areas within psychology.
05 Some areas such as reinforcement theory might be
06 reviewed every year. Other areas like political psychology,
07 consumer psychology probably reviewed every three or four
08 years. And ▴▴
09 Q. Were you selected to be the writer for the Annual
10 Review of Psychology as well?
11 A. Yes, I was asked to write the chapter on Consumer
12 Psychology some years ago, 1990 I believe.
13 Q. Do you have ▴▴ I don't want to take the time, Dr.
14 Cohen, to go through pages and pages and pages of
15 publications. Do you have an idea of the total number of
16 chapters and books and articles that you have published on
17 these topics over the years?
18 A. I actually don't. I try not to look back. I try
19 to look forward. So I really don't know.
20 Q. Suffice it to say you have had an active, ongoing
21 research areas in these overlapping disciplines of consumer
22 behavior, social psychology and marketing?
23 A. Yes. A colleague not too long ago told me
24 something which surprised me, told me that I had produced

Page 53

01 more doctoral students who are currently on major university
02 faculties in Consumer Behavior than anyone in the country.
03 And I didn't realize that until I looked down the list of my
04 doctoral students, and I think he is probably right.
05 Q. Was there a time when you became involved with the
06 Federal Trade Commission activities?
07 A. Yes, in 1972 they approached me to design research
08 to examine the likelihood of consumer deception for a
09 particular product.
10 Q. What I want you ▴▴ what I want you to do now is to
11 walk through the experiences you have had with the Federal
12 Trade Commission and what they have asked you to do over the
13 years and the types of activities you become involved in?
14 A. It's a lot of activities.
15 Q. Let me do it this way. It might short▴circuit
16 things. Have you been involved in trade regulation rules
17 relating to the regulation or advertising of certain things
18 for them? And let me just give the topics and you can
19 explain these.
20 A. Okay.
21 Q. Motor vehicles, over▴the▴counter drugs, over▴the▴
22 counter antacids, nutritional advertising claims for food
23 products, detergent performance, labeling, consumer rights
24 and credit contracts. Have you been involved in those sort

Page 54

01 of things?
02 A. I have been involved in all of those doing somewhat
03 different things. Federal Trade Commission has considered me
04 an expert obviously in consumer psychology and consumer
05 behavior but also in survey research. And they have sought
06 my help in designing studies and in evaluating studies,
07 surveys, qualitative research that came to the Commission
08 when they looked at these particular issues.
09 Q. Well, let's go through those and I know you have
10 also served in terms of the ▴▴ either advisor or expert in
11 other cases involving the Federal Trade Commission that they
12 have brought, haven't you?
13 A. Yes, a number of cases.
14 Q. That would involve cases against General Motors,
15 Thompson Medical for Aspercreme, Figi International for heat
16 detectors ▴▴
17 A. Right.
18 Q. American National Cellular for cellular telephones,
19 Campbell Soup and the Joe Camel case. And tell the Court
20 about your role in terms of the Joe Camel case.
21 A. Well, Federal Trade Commission launched an
22 investigation into R.J.R. or R.J. Reynolds marketing and
23 advertising of Camels using the Joe Camel character and
24 decided to file an action against Reynolds.

Page 55

01 They brought me in as their chief consultant on
02 consumer behavior to evaluate the internal documents at
03 Reynolds and the effect of Reynolds' marketing and
04 advertising on consumers, particularly under age consumers.
05 And so that's what I did and went through all those documents
06 and testified in the hearings at the Federal Trade
07 Commission.
08 Q. You mentioned these tobacco documents. How long
09 have you been involved with reviewing tobacco documents, just
10 the population of documents from one sort or another? How
11 long have you been involved in that?
12 A. I guess I started looking at tobacco industry
13 conduct through the documents with the Cippollone case which
14 probably puts me back into the early '80's, '83, '84 when I
15 started reviewing cigarette industry documents. And then I
16 worked with the Attorney General of Canada in their case
17 against the tobacco industry in support of a potential
18 advertising ban as I reviewed basically all the documents
19 available in Canada.
20 And then since that time I have kept pace and tried
21 to keep up with documents that were available in this
22 country. So I have been really looking at cigarette company
23 documents since early '80's.
24 Q. You mentioned the Cippollone case. You were

Page 56

01 involved in that Cippollone case as well?
02 A. Yes, I was.
03 Q. Now, while we are on the topic of cigarettes and
04 your work there, what was the first work that you had
05 involved? What did you do very first job in terms of some
06 aspect of the tobacco industry?
07 A. Around 1980 there were many people who thought that
08 the warning that was then on cigarette ▴▴ on cigarettes was
09 ▴▴ it was inadequate and didn't communicate all that was
10 necessary.
11 The Federal Trade Commission asked me to evaluate
12 the warning in its present form and to recommend any changes
13 in the warning, and I enlisted the help of a colleague and we
14 basically did that and sent a report to the Commission
15 advocating a rotational warning system and providing
16 psychological support for that explaining why that would be
17 more effective.
18 Commission liked the report. They passed it along
19 to Congress in their annual report. I then testified before
20 the Operative Committee ▴▴ one of the Operative Committees in
21 Congress and rotational warning system was of course adopted.
22 Q. And have you been a reviewer of Surgeon General's
23 Reports, sir?
24 A. I reviewed a part of a 1989 Surgeon General's

Page 57

01 Report.
02 Q. What would you be asked to review in the Surgeon
03 General's Report?
04 A. Chapters dealing with the impact of cigarette
05 marketing and advertising on consumer behavior and especially
06 survey and other evidence that would deal with what consumers
07 understood or took away from advertising and promotion of
08 cigarettes.
09 Q. And have you been involved as a reviewer of
10 Monograph 7 and Monograph 13?
11 A. I actually wrote a chapter for the earlier
12 Monograph.
13 Q. Could you tell the Court about that, your role with
14 these Monographs?
15 A. The National Cancer Institute asked me to design a
16 nationwide study to learn what smokers understood when they
17 saw tar numbers appearing in cigarette advertising. What did
18 consumers ▴▴ what did smokers make of these tar numbers? How
19 did they understand them? And so I carried out you a
20 national study for the National Cancer Institute and
21 presented that at a special conference in front of the
22 President's Cancer Panel and that led then to this Monograph,
23 Monograph 8.
24 I subsequently wrote a paper based on that work and

Page 58

01 that became a lead article in the American Journal of Public
02 Health about a year or so later.
03 Q. And were you a reviewer for Monograph 13 as well?
04 A. Yes, I was.
05 Q. Now you said had ▴▴ you had done this work that
06 resulted in this paper. What type of study did you do?
07 A. The paper that led to the American Journal of
08 Public Health article?
09 Q. Yes.
10 A. I carried out a nationwide survey of smokers and
11 developed questions to ask them to determine their use of tar
12 numbers and their understanding of tar numbers so I could
13 report to the National Cancer Institute and President's
14 Cancer Panel how these numbers were being used by smokers.
15 Q. And when did you first become involved in surveys,
16 survey techniques?
17 A. Well, in addition to my doctoral training I would
18 say probably the heaviest involvement was after I left the
19 University of Illinois in 1972 I became the Director of
20 Social and Behavioral Science Research at a leading survey
21 research organization called National Analysts in
22 Philadelphia. So I was in charge of all government▴related
23 surveys including for Department of Transportation, and NIH
24 and other federal agencies. And so I had over▴all

Page 59

01 responsibility for the quality of these surveys, and I guess
02 I have been involved where survey research for very long
03 time.
04 Q. You mentioned the case of Attorney General of
05 Canada vs. R.J.R. and your involvement in that matter?
06 A. Well, it wasn't just against R.J.R. There was
07 R.J.R. McDonald was one party and Imperial Tobacco was the
08 other.
09 Q. What was your role there, sir?
10 A. I was asked to review the internal documents of
11 both companies to try to understand what the impact of the
12 advertising was on both the initiation of smoking and
13 people's continuing to smoke, and basically that was my
14 assignment.
15 Q. Let me read some of these matters into the record
16 and just tell me what these are, things that you have been
17 involved with by way of credentialing, sir.
18 You were invited and gave testimony to the United
19 States House of Representatives 1989 on the subject of
20 protection of children from Cigarettes Act of 1989?
21 A. Yes, that's true.
22 Q. You gave an invited presentation to the Ad Hoc
23 Committee of the President's Cancer Panel at the National
24 Cancer Institute Conference on the FTC Test Method for

Page 60

01 Determining Tar and Nicotine, Carbon Mmonoxide Levels and
02 that was in Bethesda, Maryland in December, 1994?
03 A. Yes, it was.
04 Q. Now, in terms of other public policy activities you
05 have some involvement with the National Academy of Sciences?
06 A. Yes, when I was a National Analyst in Philadelphia,
07 one of the important issues of the day was trying to curb
08 particularly adolescents' use of illegal drugs through mass
09 media approaches, and a Blue Ribbon Committee of the National
10 Academy of Sciences was created, and they came to
11 Philadelphia to meet with me to ask some advice about how
12 they would measure effectiveness of those mass media
13 approaches. So I gave them a small amount of help on that.
14 Q. You have been a consultant to the Office of
15 Technology Assessment of the U.S. Congress as well on the oil
16 crisis in the '70's?
17 A. Yes. How quickly we forgot these things, yes.
18 Q. Okay. And I just want to read your editorial
19 levels from your C.V. You have been editor or you are now
20 currently the editor of the Journal of Public Policy in
21 Marketing.
22 You have been one of the editors on the Editorial
23 Board of the Journal for Consumer Research, the Journal of
24 Public Policy and Marketing, the Journal of Marketing, is

Page 61

01 that correct, sir?
02 A. Those are the journals where I sit or have sat as a
03 regular either editor or member of the Board. There are
04 quite a number of other journals that I serve as an ad hoc
05 reviewer.
06 Q. All right. What have you been asked to do in this
07 case?
08 A. I have been asked to review documents that would
09 bear on Philip Morris's marketing of Marlboro Light and
10 Cambridge, Cambridge Light cigarettes to understand how that
11 marketing would affect smokers' behavior.
12 Q. You have been asked to do that before, haven't you?
13 A. Oh, yes.
14 Q. You have done this at the request, for example, of
15 the Federal Trade Commission, haven't you?
16 A. Yes.
17 Q. And you have been involved in other lawsuits as
18 well, haven't you?
19 A. I have only been involved in three cigarette
20 lawsuits that have come to trial: The Cippollone case, the
21 Federal Trade Commission case against Reynolds on Joe Camel
22 and didn't actually come to trial, came to administrative
23 hearing at the Commission, and this one. So this is only the
24 third time that I have actually testified about that.

Page 62

01 Q. As we start off and we go through this, can you ▴▴
02 have you assembled a demonstrative slide that explains the ▴▴
03 sort of the historical perspective prior to the release of
04 Philip Morris's product Marlboro Lights?
05 A. Yes. Before I get to that maybe my ability to
06 count has deserted me. I think I left out Canada. So that
07 would be four; three and one is four. There are ▴▴ there are
08 a couple of other cases pending, but I have no idea if they
09 are going to come to trial.
10 Q. Now, as we look at and you know that Marlboro
11 Lights and Cambridge Light cigarettes are the subject of this
12 litigation?
13 A. Yes.
14 Q. And as we look at the historical background for the
15 release of the Marlboro Light product in this country, can
16 you look at and explain to the Court sort of the information
17 environment that was there and what I want to make sure you
18 explain is how this relates, all of this relates to consumer
19 behavior, consumer awareness, the expected ▴▴ what a social
20 psychologist or person who is familiar with the marketing
21 efforts of a company can look at and how consumers would
22 react to certain things?

16 A. The reason I think this is important when Philip
17 Morris launched Marlboro Lights, '71, '72, they didn't do
18 that in a vacuum, and it's impossible to understand smokers'
19 response to that launch without understanding what preceded
20 it and therefore what consumers had in their minds at the
21 time that Philip Morris launched Marlboro Light.
22 So in the 1950's some very important things
23 happened, and if you just want to put some of these up. The
24 public began to hear about some impressive statistical

Page 64

01 relationships between cigarette smoking and disease,
02 particularly lung cancer. And this was in the early '50's,
03 and then some magazines, particularly Consumer Reports I
04 think around 1953 and Reader's Digest that you have up there,
05 both of these published a tar and nicotine numbers and
06 focused on tar.
07 So the American public is first becoming alarmed
08 about cigarettes and disease in a very serious way with the
09 hard empirical data and then they are being told in the
10 popular press that the real problem is tar and so this is ▴▴
11 this starts in the 1950's. People are made conscious about
12 tar.
13 Q. And then if we go on we see some more studies that
14 ▴▴ and there is a lot of popular press. These are not just
15 studies that appear in scientific journals as you might
16 imagine given the importance of this for a smoking public
17 over 50 million people. These are getting a lot of
18 attention, and Doll & Hill is a very important series of
19 studies in England, very well done studies.
20 The industry at that time responded with pretty
21 blatant health claims and filter wars and I am not sure how
22 much detail you want me to get into. Obviously I have been
23 over this stuff very carefully. The basic ▴▴ the gist of
24 what the industry did was to argue that these miraculous

Page 65

01 filters were going to remove the harmful ingredient. As you
02 know advertising was permitted on television at the time and
03 there were amazing demonstrations showing that essentially
04 nothing could get through the miraculous filters.
05 The industry decided in 1954 that it had better
06 take a stand of some kind because clearly the American public
07 was becoming alarmed. They put out something called the
08 Frank Statement to Cigarette Smokers. That was a full page
09 ad that appeared in many newspapers around the country, and
10 it pledged to the American public that the cigarette industry
11 would get to the bottom of this.
12 It said basically that there is a controversy. We
13 know of no evidence that would link cigarette smoking and
14 disease, but we pledge to get to the bottom of this and
15 furthermore they formed a research committee. I think ▴▴
16 Q. This is the Tobacco Industry Research Council?

22 Q. (Mr. Tillery) Is there any reason, sir, from
23 anything, any documents you have looked at, any research from
24 all of the years of your association first with social

Page 67

01 psychology and consumer behavior and secondly with cigarette
02 smoking and the behavior of ▴▴ consumer behavior of cigarette
03 smokers to suggest that the people of the State of Illinois
04 or the people who buy cigarettes in the State of Illinois,
05 specifically Cambridge Lights and Marlboro Lights are somehow
06 different or in any measurable significant way that would
07 somehow alter this collection of people in Illinois from ▴▴
08 and change the opinions that you would have from the people
09 who live in Missouri or other parts of the country?
10 MR. WAGNER: Your Honor, I object to that question.
11 That is a totally ▴▴
12 THE COURT: Let him answer it first.
13 A. No, I think people in the State of Illinois, having
14 lived in the State of Illinois for six years are very much
15 like people living in the rest of the United States, and the
16 mind set of people is very important in order to understand
17 how they responded to the launch of Marlboro Lights.

01 Q. (Mr. Tillery) You were at the ▴▴ I think at the
02 point of discussing the Tobacco Industry Research Council and
03 let's stop there for a second. Was Philip Morris involved in
04 the Tobacco Industry Research Council?
05 A. Oh, yes. They were a member of the Tobacco
06 Institute in the sense of all cigarette companies having a
07 representative ▴▴ may not be all ▴▴ virtually all, certainly
08 Philip Morris having a representative on the Tobacco
09 Institute and Philip Morris as a particularly prominent
10 member of the tobacco industry having more than that, having
11 representation on the Lawyers Committee that took heavy
12 responsibility after Tobacco Institute to determine a lot of
13 very important matters including how the research money was
14 spent. So Philip Morris was heavily involved with tobacco
15 industry.
16 Q. From this period of time that we are talking about
17 in the '50's until the Tobacco Institute ceased to exist as
18 part of the agreement that was reached, did Philip Morris
19 have a seat at the table throughout that period of time?
20 A. Oh, yes.
21 Q. And was the CEO of Philip Morris always a board
22 member of the Tobacco Institute at a minimum, if not an
23 officer?

07 Q. (Mr. Tillery) Go ahead, sir.
08 A. I can't say that it was always the CEO of Philip
09 Morris but it was whoever Philip Morris wanted to have that
10 responsibility. That was the person who would have it. Let
11 me make it clear because I believe the flow was lost and when
12 people stand up I just stop because I don't know what else to
13 do.

Page 71

01 Q. (Mr. Tillery) Go ahead, sir.
02 A. The point I was starting to make was that after
03 this Frank Statement to the American Public, the Council for
04 Tobacco Research was set up and this was part of the pledge
05 to the American public that money was going to be spent ▴▴ in
06 fact later on an imminent scientist came in to head up this
07 Council for tobacco research and that ▴▴ the pledge was that
08 this group and the tobacco industry was going to spend the
09 money necessary to investigate the relationship between
10 smoking and disease.
11 Later on the Council for Tobacco Research became Tobacco
12 Industry and Research Council. I hope I am not misstating
13 any of the words, and Philip Morris had a prominent role not
14 only in the Tobacco Institute but on the Research Committee
15 and Lawyers Committee that was subsequently set up to oversee
16 the Research Committee and that continued all the way
17 through. I have called this disinformation campaign ▴▴
18 Q. When you use that term, first of all would you
19 explain to the Court what you mean by the term?
20 A. During this period of time the Tobacco Institute
21 entered into arrangements with several large public relations
22 organizations, and these are memorialized in plans that were
23 submitted and budgets to the Tobacco Institute, and they
24 detail how the tobacco industry was going to proceed to

Page 72

01 inform the American public about its side of the story.
02 In essence what they did was, every time a study
03 was published that was indicative of a relationship between
04 smoking and disease the Tobacco Institute either by its own
05 officers or by bringing in other scientists cast doubt on
06 those studies. The Tobacco Institute cast doubt on every
07 statement made by the Surgeon General of the United States
08 that attempted to link smoking and disease, and I ▴▴ in total
09 this can be called nothing other than a disinformation
10 campaign, and I have got exhibits to present that make this
11 abundantly clear.
12 Q. Why would you do that if you are involved in a
13 business that sells cigarettes and the Surgeon General of the
14 United States comes out in, say, 1964 and links lung cancer
15 to smoking, why would you do that?
16 MR. WAGNER: Objection, lacks foundation, no tie to
17 Philip Morris.
18 THE COURT: Overruled.
19 A. The cigarette industry, including Philip Morris,
20 understood that smokers were becoming very anxious in the
21 1950's. Their anxiety can be thought about in terms of the
22 very important psychological concept called cognitive
23 dissonance.
24 Here is what that's all about. If a person smokes

Page 73

01 and came to hear that smoking was harmful, potentially life
02 threatening, psychologists talk about cognitive dissonance as
03 a state where you hold two opposing beliefs. I smoke.
04 Smoking is unhealthy, may even kill me. That causes a
05 tremendous amount of tension for the individual.
06 The individual will seek to reduce the tension.
07 One way to do it is to stop smoking. Then smoking can kill
08 me, I quit. Fine, no more dissonance. But as we have
09 subsequently learned it's pretty difficult for many people to
10 quit smoking. Many people tried repeatedly. With each
11 failure there is an added conviction that I am unable to
12 stop. Now consider the dissonance. I smoke, can't quit,
13 smoking is harmful to me.
14 The tobacco industry ▴▴ and I will demonstrate this
15 with some examples from your documents ▴▴ understood that
16 they had to deal with that dissonance and the best way of
17 doing that was to try to convince smokers that smoking may
18 not be bad for them, that the evidence was weak.
19 So if a smoker would hear what the tobacco industry
20 was saying through the Tobacco Institute and through other
21 sources they would then be able to say, I smoke and smoking
22 may or may not be harmful to me, they don't know yet. And
23 the tobacco industry is doing all it can to find out, and
24 when they find out they will tell us.

Page 74

01 So this disinformation campaign had to have the
02 effect of reducing dissonance for smokers thus leading them
03 to continue smoking, especially for those who found it
04 difficult to quit.
05 Q. When did you first become aware of this concept of
06 cognitive dissonance?
07 A. Well, when I was a doctoral student at UCLA taking
08 social psychology with very imminent social psychologist
09 named Harold Kelly, Kelly had worked with the legendary Leon
10 Festinger.
11 Festinger developed among several major theories a
12 dissonance theory in 1957 and Festinger came down to teach us
13 in Kelly's class the theory of cognitive dissonance and
14 review his research. So I was able to learn dissonance
15 theory from the master as it were and understand it. And
16 then I had the good fortune of being able to apply it almost
17 immediately because immediately in 1964 the Surgeon General's
18 Report came out.
19 And so with a colleague we did a study to examine
20 the impact of the Surgeon General's Report on smokers to see
21 if dissonance theory predictions would be upheld. Let me try
22 to make this simple. I am probably rambling. Professors do
23 that.
24 Q. You are doing just fine.

Page 75

01 A. Okay. Dissonance theory as I indicated before
02 said, I smoke. Now the Surgeon General's Report has just
03 come out, nationwide publicity, every newspaper, evening
04 news. So now they have to say, I smoke; smoking is bad for
05 me.
06 We went out and did a study to see whether people
07 would believe the Surgeon General's Report if they were
08 smokers and whether that varied depending on how much they
09 smoked, and sure enough the more you smoked, the heavier
10 smoker you were the less inclined you were to believe the
11 Surgeon General's Report.
12 So the disinformation campaign played right into
13 that. Anything that smokers could be told by the Tobacco
14 Industry that disparaged the Surgeon General's Report, that
15 said the evidence is weak, it's only statistical, it's
16 correlational, then indeed smokers could continue to smoke
17 and reduce their dissonance by saying there isn't enough
18 evidence yet.
19 Q. You are talking about learning this or hearing this
20 yourself as a social scientist in the '50's. How do you
21 convince the Court that these tobacco companies like Philip
22 Morris were aware of this concept?
23 MR. WAGNER: Object to the form.
24 THE COURT: Overruled.

Page 76

01 A. There are documents from the tobacco industry that
02 shows they are very well aware of cognitive dissonance theory
03 and talk about it and use it in their own thinking, including
04 Philip Morris, and I think we have some examples of that.
05 Q. Can we at this time ▴▴ would you be able to come
06 back at this stage in this demonstrative in just a minute?
07 Why don't you take it down just a minute. I want to
08 reference one document. Can you pull up this document. It's
09 CKT06082101.
10 Are you familiar with this document, sir?
11 A. Yes, I am.
12 Q. And this we will call ▴▴ I think this is ▴▴
13 MR. WAGNER: Can we have an identity what document this
14 is?
15 MR. TILLERY: If you can go to the first page it's ▴▴ I
16 believe this is the Philip Morris Consumer Research Group
17 Statement of Position on ▴▴ of the Social Pressures
18 Construct. We will call this ▴▴ I think we were at 61. Is
19 61 the last or 60 the last? I think it's 61. This will be
20 62.
21 THE CLERK: 62 was the last one.
22 THE COURT: This will be 63.
23 MR. TILLERY: I am sorry?
24 THE COURT: 63.

Page 77

01 Q. (Mr. Tillery) 63. This is a document that's an
02 internal ▴▴ can you go through and using this document
03 explain what the points you were just making.
04 Do I have the correct document, sir?
05 A. Yes, this is Philip Morris document dated June 20,
06 1988, and it shows that Philip Morris is well aware of
07 Festinger's theory of cognitive dissonance. They say it's
08 intuitively useful in making predictions about the strategies
09 smokers adopt to deal with social pressures. It's
10 intuitively useful in fact in making predictions about the
11 strategies smokers use in responding to any information
12 concerning smoking and health because once they are dissonant
13 then the theory makes predictions about how they will
14 respond.
15 Now I asked to have this document introduced to
16 simply make the point that my original analysis of smokers in
17 term of cognitive dissonance in 1965 and my research on the
18 subject in connection with the Surgeon General's Report is
19 not isolated but in fact is fully consistent with what the
20 industry subsequently has done.
21 Q. Your work in 1965 was entitled, Cognitive
22 Dissonance in Consumer Behavior?
23 A. That's correct.
24 Q. Reactions to the Surgeon General's Report on

Page 78

01 Smoking and Health?
02 A. Yes.
03 Q. Now I want to reference another document. I think
04 you have it as the next document, Dr. Cohen. This will be
05 Exhibit 63 ▴▴ 64, I am sorry.
06 MR. WAGNER: Your Honor, I am going to object to this
07 document. It's not a Philip Morris document. It's from
08 British American and Tobacco.
09 MR. TILLERY: It's subject to a stipulation, however.
10 We specifically negotiated the stipulation to include it. If
11 you want me to get the stip out ▴▴
12 MR. WAGNER: It has to do with relevancy objection, not
13 authenticity.
14 THE COURT: Overruled.
15 Q. And just so we are clear you are not suggesting,
16 are you, that this is a ▴▴ you know the document we are
17 referencing?
18 A. Oh, sure.
19 Q. Let's pull up if you can CKT900661, and do you have
20 that document in front of you, sir? That's Exhibit 64?
21 A. Yes, it's a fairly long document and if you don't
22 mind the point I would like to focus attention on is on page
23 16 of that document.
24 Q. That would be 90069201. If you could expand that

Page 79

01 portion. Can you read this?
02 A. Much better on my screen.
03 THE COURT: That's not page 16.
04 A. I was going to lead to this by focusing on page 16
05 and take a little more time.
06 Q. (Mr. Tillery) Go ahead. If you wouldn't mind. I
07 am sorry, Doctor.
08 A. But whatever is easy to do. I don't know how
09 difficult it is to use this technology. The ▴▴ I would
10 rather do it that way.
11 Q. Go ahead.
12 THE COURT: That's fine.
13 A. So if we could look, it's a few pages earlier. I
14 have a hard time reading the Bates number. It ends in a 6 I
15 think.
16 MR. LOMBARDI: You can read the page number of the
17 document itself would be fine.
18 A. Fine. It's page 16.
19 Q. I don't know that she has that loaded ▴▴
20 A. I can read it into the record.
21 Q. That's fine.
22 THE COURT: Is there a question?
23 Q. (Mr. Tillery) Why don't you go ahead and read the
24 portion into the record that you are referencing, but tell

Page 80

01 them the page on the document that you are referencing.
02 A. Yes, it's page 16 at the bottom and continues for
03 one sentence on the top of page 17.
06 Go ahead.
07 A. Recall that the last document I talked about was a
08 Philip Morris document that talked about cognitive
09 dissonance.
10 So we now ▴▴ we have learned from the prior
11 document that I introduced that Philip Morris thought that
12 about cognitive dissonance in respect to smokers' behavior.
13 This document at bottom of page 16 says the
14 following: Smokers who have moved down the tar brands report
15 that they feel themselves to be under a great deal of
16 pressure to give up smoking. For these smokers switching to
17 low tar brands offers an alternative means of reducing their
18 concern about their smoking. For them the reassurance gained
19 by smoking a lower tar cigarette outweighs any loss in
20 satisfaction. For some, this reduced taste and satisfaction
21 may complement and reinforce any sense of reassurance given
22 by smoking a lower tar product.
23 In simple English what this says to me as someone
24 who has studied cognitive dissonance is that it was well

Page 82

01 understood that low tar brands when offered to consumers
02 reduced smokers' dissonance and would be a way to have
03 smokers continue to smoke, not experience the psychological
04 discomfort that they would have ordinarily, and the marketing
05 of low tar brands including Marlboro Light then would serve
06 this function and would retain people in the market and make
07 people more comfortable about continuing to smoke.
08 Q. And the last quote which is on page 30 of that
09 document if you could pull that up now. That's the one we
10 reference. Do they actually refer to dissonant smokers in
11 this document?
12 MR. WAGNER: Same objections, your Honor.
13 THE COURT: Overruled.
14 A. Yes, so it's my intent with the previous statement
15 to give some background for this, and this very directly
16 talks about these highly dissonant smokers. They feel under
17 pressure to give up smoking. They have attempted to do so.
18 They have made serious attempts to quit and they failed, and
19 these highly dissonant smokers according to this document
20 would be highly motivated to modify their smoking behavior in
21 terms of switches to brands which they perceived as, quote,
22 safer, end quote and yet meet their requirements, whatever
23 they might be.
24 This is a wonderful ▴▴ wonderfully clear

Page 83

01 explanation as to how the marketing of low▴tar, lower▴tar,
02 light cigarettes would reduce dissonance for smokers and make
03 it possible for them to continue smoking and because they are
04 reassured feel better about continuing to smoke.
05 Q. In your review of documents and Philip Morris
06 documents, were you aware of the fact that Philip Morris
07 actually employed a behavioral research center to explore the
08 attitudes and behavior of smokers?
09 A. Yes, they had very sophisticated behavioral people
10 working there, and given the dissonance theory was one of the
11 paramount theories in psychology it would be inconceivable to
12 me that sophisticated behavioral people would not be well
13 aware of that.
14 Q. Let me talk about one point ▴▴
15 MR. WAGNER: Your Honor, we would move to strike that.
16 There is no foundation for that to say, It's inconceivable
17 that they wouldn't know that. That is not proper testimony
18 about what anyone at Philip Morris actually knew, was reading
19 about, was considering at any time in connection with the
20 marketing of cigarettes.
21 MR. TILLERY: I can ask one or two ▴▴
22 THE COURT: Let's see how he ties it up.
23 Q. Back by the late '60's, let's just say mid '60's,
24 was Leon Festinger's concept then taught and recognized

Page 84

01 throughout social psychology and psychology as a more than a
02 theory but as an accepted behavioral activity of people?
03 A. Yes, it was highly recognized, but recall that the
04 first document I introduced that talked about dissonance
05 theory was a Philip Morris document. I have already
06 demonstrated that Philip Morris ▴▴
07 THE COURT: Overruled.
08 A. ▴▴ was very well acquainted with dissonance theory.
09 Q. But for my question was it by the late '60's, early
10 '70's clearly understood and recognized by people who would
11 go to school and learn behavioral issues of consumers?
12 A. Oh, yes, very widely recognized theory.
13 Q. Now ▴▴
02 Q. (Mr. Tillery) I have asked that the demonstrative
03 be put back up on the screen and I would like if we can to go
04 through and complete ▴▴ again if you remember my original
05 question was the sort of historical back drop, and you have
06 explained and added to this the whole concept and recognition
07 of cognitive dissonance.
08 Now ▴▴ and I have interrupted you about three or
09 four times and I would like for you to complete this
10 historical back drop prior to the release of the Marlboro
11 Lights product.
12 A. Certainly. The disinformation campaign that I am
13 referring to largely represents efforts by the Tobacco
14 Institute and the companies including Philip Morris that were
15 members and participated in the Tobacco Institute.
16 The disinformation campaign consists of efforts to
17 discredit any study assumed to have or that might have
18 significance to consumers on the link between cigarette
19 smoking and cancer or any other disease, and Tobacco
20 Institute mounted a hefty public relations program to
21 discredit health authorities and health information linked
22 to disease, and I have chosen to illustrate this with various
23 documents that illustrate what these activities look like.
24 Q. Before we do that I want to reference a single

Page 88

01 document before we go through and talk about the entire
02 collection that you have selected of these documents. Was
03 there one document that sort of epitomizes the over▴all theme
04 of the Tobacco Institute that sort of lays out what their
05 goals were?
06 A. Well, there might be several but Fred Panzer who
07 was an attorney with the Tobacco Institute in I think 1972
08 which corresponds to the launch of the Marlboro Lights
09 described the over▴all strategy of the disinformation
10 campaign. And I think that one document summarizes the
11 efforts in the disinformation campaign.
12 MR. TILLERY: I am going to mark as Exhibit 65, your
13 Honor, the Panzer memo. You probably have one there, but we
14 will pull it up on the screen, sir.

22 Q. (Mr. Tillery) First of all do you have a copy of
23 it, sir?
24 A. I probably do, but I can read it quite adequately

Page 89

01 on the screen.
02 Q. If you can explain this documents in terms of the
03 context of what you have just said.
04 A. Panzer looking back from 1972, looking back into
05 the '50's where I started with the demonstrative exhibit
06 talks about the strategy that the tobacco industry has
07 employed, a single strategy on three major fronts:
08 Litigation, politics and public opinion.
09 I will leave it to anyone who wishes to read each of the
10 words, but I would draw attention to the ▴▴ what I would call
11 the bullet points or dash points. What did they do? The
12 strategy was first to create doubt about the health charge
13 without actually denying it. It's very subtle. They didn't
14 deny it, but they created doubt in every possible way about
15 health, and Panzer describes this strategy as brilliantly
16 conceived and executed.
17 The second bullet or dash point advocating the
18 public's right to smoke without actually urging them to take
19 up the practice. I think that speaks for itself.
20 The third of these, encouraging objective
21 scientific research as the only way to resolve the question
22 of health hazard. Now this seems perhaps innocuous as it's
23 written here but it's not.
24 Every time a major study was introduced, including

Page 90

01 the Surgeon General's Report the response from the Tobacco
02 Institute would be that there is something flawed in the way
03 the data was gathered or analyzed or presented. Important
04 information may have been left out and what's needed is
05 solid, objective scientific research and that communicates to
06 smokers the jury is still out. We don't know yet, and that's
07 the upshot of this strategy.
08 Q. Now, have you gone through and selected documents
09 that show what Philip Morris as part of the Tobacco Institute
10 was doing in terms of what you described as a disinformation
11 campaign?
12 A. Yes, from a very large volume of documents
13 including those I have reviewed starting in 1980 and up to
14 the present date I selected just a few examples of this
15 disinformation campaign to illustrate exactly what I have
16 been talking about.
17 Q. I will hand you what we will mark as Group 66. Do
18 you have a copy of that?
19 A. I think I do.
20 Q. And before we get into the summaries of these
21 documents I am going to mark as 67 another collection of
22 documents.
23 These are, your Honor, set out in the separate
24 boxes.

Page 91

01 And first of all if you would, sir, tell him what
02 these documents are.
03 A. Well, it was actually hard to only pick a few to
04 talk about because there are so many of these similar
05 attempts, and so I have asked that a more complete exhibit be
06 put together of related documents.

02 MR. TILLERY: Thank you, Mr. Lombardi.
03 Q. So the box so you know, Judge, just so the record
04 is clear, have you been through this box of documents?
05 A. Yes, I have.
06 Q. And the box of documents, your Honor, is numbered
07 ▴▴ it will be Group 67, 1 through 273 and those are what,
08 sir?
09 A. Part of the disinformation campaign that was used
10 to reduce smokers' dissonance and has continued to have them
11 smoke.
12 Q. And number 66 is what? Group Exhibit 66 is what
13 that you have in your hand?
14 A. These are selected examples which I think will
15 illustrate the point I have made about cognitive dissonance
16 and about how the tobacco industry used public relations and
17 other activities to reduce smokers' dissonance thus leading
18 them to continue smoking.
19 Q. And have you asked that portions of these specific
20 documents which are made up in Group 66 be placed on the
21 board.
22 A. Yes please.
23 Q. Can we do that please? What is this reference to a
24 March 7, 1962 comment of George Allen. Who is George Allen?

Page 99

01 A. Not the Redskins former football coach, but rather
02 President of the Tobacco Institute.
04 Q. (Mr. Tillery) Go ahead, sir.
05 A. In each of my depositions I spoke about the
06 information environment. I was asked numerous questions by
07 Philip Morris attorneys about the information environment.

15 THE COURT: You know, he kind of took me back here.
16 Q. (Mr. Tillery) Finish your point.
17 A. And the information environment consists in part of
18 statements by the cigarette companies and statements by the
19 Tobacco Institute composed of representation by Philip Morris
20 and the other cigarette companies to the American public and
21 to other influential in society.
22 In order ▴▴ it's important to understand the
23 information environment in order to understand why the launch
24 of Marlboro Lights cigarettes would have been received

Page 101

01 favorably, and I will tie that in later on even more
02 specifically.
03 This first document represents the comments on a
04 British ▴▴

04 A. The first of these, the President of the Tobacco
05 Institute is commenting on a study done in England by the
06 Rail College of Physicians discussing smoking and health and
07 he says, I am informed that the British report contains a
08 number of contradictions and inconsistencies. This is
09 illustrative of cigarette industry, Tobacco Institute actions
10 to lead people to doubt that there was any firm linkage
11 between cigarette smoking and disease.
12 The second one of these does roughly the same thing
13 by ▴▴ the second one of these quotes by talking about the
14 contradictions that are found elsewhere in the report and
15 points out that there are a large amount of other factors
16 which might be related to disease. Again this reduces
17 smokers' dissonance and enables them to keep smoking.
18 And the final points here: I am proud the Tobacco
19 Industry supports continued independent research aimed and
20 getting the full facts about cancer and other diseases.
21 In point of fact the Tobacco Institute and its
22 research committee did not do what was said here. The
23 research was carefully under the control of a lawyers'
24 committee, and although this promise was heard by the

Page 103

01 American public or was at least exposed to the American
02 public and so this is what people had a reasonable
03 expectation about what would happen.
0
18 Q. (Mr. Tillery) Go to the next one. Were you
19 finished with that one?
20 A. Yes.
21 Q. Go to the next one. Could you give the Court the
22 factual background for this particular statement by the
23 Tobacco Institute?
24 A. Yes, there was a highly publicized study by Dr.

Page 104

01 Auerbach called the Smoking Dog study, and I believe it
02 received very wide dissemination in newspapers and magazines.
03 The Tobacco Institute launched a very aggressive
04 disinformation campaign against this study calling it highly
05 suspect and saying the report was far from accurate and none
06 of the dogs developed lung cancer.
07 This is blatantly false, and I can prove in case
08 anyone wishes me to that the industry knew it was false at
09 the time they were making this statement.
10 Q. And this statement ▴▴ these were the types of
11 statements sent out in press releases around the country?
12 A. Yes, it was picked up by the public relations group
13 working with him. Hill and Noulton was the public relations
14 firm that they hired to disseminate this kind of information.
15 Q. Go to the next slide please. What is this please?
16 This is an October 12, 1970 letter to members of Congress.
17 A. Right. This is again on the Auerbach Smoking Dog
18 study. This went out to every member of Congress I believe
19 and was widely publicized and I think ▴▴ I am not sure I want
20 to take the Court's time to read every word of this, but it's
21 a very dismissive of this important study. And as I said
22 earlier the industry knew that at least people in the Tobacco
23 Institute of which Philip Morris had a representative knew
24 that the evidence was sound in this study, and yet they were

Page 105

01 derogating it.
06 Q. Go ahead, Doctor.
07 A. I don't want to take unnecessary time of the Court.
08 I think it's very, very clear I don't think it calls ▴▴
09 requires more interpretation than I have given it. It
10 clearly smears the research and basically says that it's ▴▴
11 it's got very little objectivity and shouldn't be taken
12 seriously.
13 Q. And the next one. What is this?
14 A. Oh, this is a direct assault on the 1972 Surgeon
15 General's Report. They said it insults the scientific
16 community and leads to the conclusion that the number one
17 public health problem is not cigarette smoking but is the
18 extent to which public health officials may knowingly mislead
19 the American public.
20 Q. Stop for a second. Stop for a second. Reference
21 to the 1972 Surgeon General's Report?
22 A. Yes.
23 Q. And a statement that it's really not cigarette
24 smoking is the problem but the extent to which public health

Page 107

01 officials may knowingly mislead the American public?
02 A. Right. They derogated from the Surgeon General on
03 down to imminent scientists and researchers. Any information
04 that suggested a link between cigarette smoking and disease,
05 they immediately attacked, and this was put out there and
06 became part of the information environment. And if you think
07 about it in terms of smokers' dissonance a smoker who has had
08 trouble trying to quit smoking, Surgeon General's Report
09 comes out, get some press and then a very strong statement
10 says this report is nonsense.
11 It's an insult to the scientific community. There
12 is no way to interpret the effect of this other than to say
13 that it would lead a smoker to think that perhaps it's okay
14 to smoke until the evidence is stronger.
15 Q. On the second ▴▴ the second paragraph along the
16 same line?
17 A. Along the same line.
18 Q. Next document please. What is this?
19 A. This was information dissemination in Chicago and
20 disinformation at that. This one takes on the American
21 Cancer Society and the third bullet there: Smoking may or
22 may not be hazardous. And you know, you can read the
23 language. Basically they have descended from science,
24 polemics and politics pressure. The last point basically

Page 108

01 says that you can't trust the American Cancer Society. They
02 are not giving honest information.
03 Q. They have descended from science, into polemics and
04 political pressure?
05 A. Right, it just castigates the American Cancer
06 Society and again it fits exactly into my discussion of
07 cognitive dissonance. The entire disinformation campaign
08 could have only one impact on a smoker. It would be to lead
09 a smoker to question the evidence regarding cigarette smoking
10 and disease, and hence actually do two things, and I haven't
11 mentioned the second and it's about time I did.
12 It would lead people to believe that continuing to
13 smoke might be okay, but it also sets them up for something
14 because if a cigarette company were to then proclaim that it
15 had a cigarette which might be less harmful, then this kind
16 of disinformation would lead people to be reassured about
17 smoking that kind of cigarette because after all if it's not
18 clear that cigarette smoking has a strong associationship to
19 disease then certainly taking the step of smoking a, quote,
20 less hazardous cigarette would be an adequate response on my
21 part as a smoker.
22 Q. Let's see the next slide please.
23 Q. What is this one?
24 A. This is I think a longer document and same kind of

Page 109

01 thing. It accuses various government health officials and
02 private interest groups of waging ▴▴ let me read the words.
03 Well, it accuses these groups of being media events and
04 zealots and basically says that the cancer issue is
05 propaganda, and it makes a call ▴▴ which in the abstract I
06 agree with. I mean, a call for good science. Who can
07 disagree with a call for good science?
08 However, labeling ▴▴ in 1979, labeling linkage
09 between cigarette smoking and disease, a scientific unknown,
10 after all the Surgeon General's Report original one came in
11 and out in 1964. This is 15 years after that and basically
12 they are still saying it's unknown and that there needs to be
13 unbiased investigation when in fact we have had serious study
14 after study of unbiased investigation.
15 Q. What's the next slide please?
16 This is Professor Booker's (ph.) states Findings for
17 Rotating Labels Are Not Clearly Established. March 12th,
18 1982?

09 A. I would point out that each of the documents I have
10 chosen to illustrate the disinformation campaign are
11 indicated for immediate release, not to Congress but as part
12 of public relations to the larger nation.
13 Q. And you say "for immediate release" and it says
14 that right on the top of the document, and it says "for
15 immediate release" and the date of the document, and that's
16 an indication that it is a press release?
17 A. Oh, yes. The statement may have been first made to
18 Congress but this is their public relations arm, Hill and
19 Noulton public relations firm that disseminates these kind of
20 statements to the American public. What Hill and Noulton
21 tried to do was get these statements in as many newspapers as
22 possible and it's in the context of my testimony about the
23 information environment, a subject they asked me about quite
24 a bit in my deposition.

Page 111

01 Q. What is this one here?
02 MR. LOMBARDI: The gratuitous reference to deposition
03 testimony ▴▴
04 THE COURT: That part will be stricken. That will be
05 stricken.
06 Q. What is this one here, sir?
07 A. The Federal Trade Commission had recommended to
08 Congress based in part on a ▴▴ my work that I described
09 earlier, a rotational warning system. And this person was
10 speaking against it, and he is speaking against it based on
11 what he believes is inadequate scientific knowledge about the
12 linkage between cigarette smoking and disease. So again it's
13 challenging that there is any evidence. This is 1982 and
14 they are still challenging a link between smoking and
15 disease.
16 Q. The next one please. This is the final of the
17 group, isn't it, sir?
18 A. Yes, I believe so.
19 Q. What is this?
20 A. There is another response to an even later Surgeon
21 General's Report and this response November 20, 1983 and what
22 the person is saying that the ▴▴ wants you to be cautious in
23 assessing the Surgeon General's Report because it is a
24 one▴sided statement shorn of scientific objectivity.

Page 112

01 Q. This representative of the type of documents that
02 are contained in Group Exhibit 67?
03 A. Yes, if you go through the box there is a great
04 many similar to this.
05 Q. Now, this last one document is 1983. Did this
06 campaign stop at that time?
07 A. No, it did not. The disinformation campaign has
08 continued many years beyond that.
09 Q. And have you seen the spokesperson's guide we will
10 call it. Do you have a copy of that?
11 A. Yes.
12 Q. This is Number 68.

10 Q. (Mr. Tillery) Is this representative ▴▴ you have
11 seen several of these, haven't you?
12 A. Yes, they have done these at different points in
13 time.
14 Q. And is the Spokesperson's Guide here irrespective
15 of whether it's international or this Defendant
16 representative of the type of instructions that Philip Morris
17 would give its speakers on issues relating to smoking and
18 health?

06 Q. Are you familiar with guides like this from Philip
07 Morris the Defendant?
08 A. Yes.
09 Q. Is this representative in terms of its instruction
10 on issues, and I am not talking about any other issue others
11 than those specifically related to this litigation. Is this
12 the kind of instruction they would give their smokers ▴▴
13 their speakers?
14 A. It's representative except that it's more complete,
15 more references typically but in general it's the same
16 purpose. The document has the same purpose.
17 Q. And there has been ▴▴ just so the Court is aware
18 there has been a stipulation with respect to this document's
19 authenticity they have given us.
20 THE COURT: They already cleared that.
21 MR. WAGNER: I still think there is inadequate
22 foundation to testify that anything was said by the defendant
23 in this case to anyone in this Class or anyway in Illinois ▴▴
24 THE COURT: It sounds adequate to me. Overruled.

Page 115

01 Q. (Mr. Tillery) Let's turn to page 12 of that
02 document, Dr. Cohen. I am not going to go through all of the
03 statements made here, but if we can reference or speak to the
04 specific highlighted version that shows up on the Elmo on
05 that page.
06 Is this indicative of the kind of instruction they
07 would give and you understand the question is in the context
08 of the ongoing statements by Philip Morris with respect to
09 disinformation?
10 A. Yes, this basically is instructing anyone who
11 speaks on behalf of Philip Morris what to say about smoking
12 and health and to speak with one voice: It has not been
13 scientifically proven that smoking causes disease. The
14 industry does not have all the answers, neither do those who
15 oppose the use of tobacco.
16 While the latter statement may be true, all the
17 answers ▴▴ I can understand that ▴▴ but to say it has not
18 been scientifically proven that smoking causes disease and to
19 have every spokesperson for Philip Morris say the same thing
20 has an impact on the information environment, and if it has
21 an impact on the information environment then it can reduce
22 dissonance on the part of smokers.
23 Q. I am going to reference the next page, page 13 and
24 I will ask you to assume that the Court or in this Court

Page 116

01 there has been introduced or shown a videotape of a speaker
02 on behalf of Philip Morris -- Mr. Morgan -- referencing gummy
03 bears or some other sweets. Look at that specific point. Is
04 that consistent with this disinformation campaign?
05 A. Well, if spokesmen are encouraged to talk about
06 cigarettes the way they would talk about chocolate, sweets,
07 tea and coffee then it certainly minimizes the unique aspect
08 of cigarettes.
09 Q. I want to show you another one. I am going to move
10 along here. This is page 15. Their aim to establish that
11 the scientific case against tobacco is closed. This by the
12 way is a 1990 document I believe. Your goal to prove that
13 there is a valid scientific controversy concerning smoke and
14 health issues. Is that consistent?
15 A. That's what the various documents that I have
16 introduced in earlier years all do, and this is just the same
17 instruction carried on in 1990 giving very explicit
18 instructions.
19 Q. This is a reference from page 20. Their claim:
20 Smoking causes lung cancer. Your response: This is a
21 misstatement. How can people claim that it has been proven
22 that smoking causes lung cancer when science has not
23 determined the mechanism by which normal lung cell becomes
24 cancerous.

Page 117

01 How does that affect to the extent that information
02 finds its way into this information system that anybody may
03 be exposed to? How does that affect what you described as a
04 dissonant smoker?
05 A. If a smoker were to hear this it would cause a
06 smoker to doubt that smoking in fact caused cancer and it
07 would support the smoker's willingness to keep smoking?

18 Q. This next one ▴▴ I think this is from page 29:
19 Smokers Die Younger. And the response: Scientists do not
20 really know why the mortality rates of smokers as a group
21 tend to differ from these of non▴smokers, but it has been
22 suggested that the prime determinant may be behavioral and
23 genetic nature of the smoker rather than smoking itself.
24 Is that consistent?

Page 118

01 A. Yes, in fact earlier that was known as the
02 Constitutional hypothesis has a long history in the tobacco
03 industry and was talked about 20 years earlier. So it's the
04 same line brought up to date I guess.

14 Q. (Mr. Tillery) Was that campaign effective?
15 A. Oh, I think it was very effective.
16 Q. Why do you think that?
17 A. Well, from a theoretical standpoint this is exactly
18 the kind of information which ought to reduce dissonance on
19 the part of smokers, and so as I have shown in earlier
20 documents both Philip Morris and other firms in the tobacco
21 industry understood cognitive dissonance so well, understood
22 the theory and disinformation of this sort disseminated
23 constantly over the years has to have the impact of leading
24 people to be more likely to doubt the relationship between

Page 119

01 cigarette smoking and disease.
02 Q. I want to show you a document, sir, that we will
03 mark as 69. This is a document, your Honor, that I
04 referenced earlier today as a document just posted on the
05 Philip Morris website.
06 Have you had a chance to look at this document?
07 A. Yes, sir, of course I have seen this before.
08 Q. What is it?
09 A. There were some focus groups, a form of qualitative
10 research that were run in St. Louis in March of 2001 that
11 were designed to evaluate the impact of some recent ▴▴ what
12 are called attacks on Philip Morris and the cigarette
13 industry and this report summarizes what was learned in those
14 focus groups and some recommendations.
15 Q. And this is a focus group right here in the St.
16 Louis metropolitan area?
17 A. Yes, in St. Louis.
18 Q. This was after this lawsuit was filed so if I ask
19 you to assume the lawsuit was filed in February of 2000, this
20 coincided with the 60 Minutes television broadcast about
21 Light cigarettes, didn't it?
22 A. Yes, on the second page at ▴▴ near the top the
23 report starts focusing in on the 60 minutes II, Roman Numeral
24 II, piece on Light cigarettes. I am not sure if you were

Page 120

01 going to highlight that.
Page 121

01 Q. (Mr. Tillery) If you can answer this, what is this
02 document referencing, and this by the way is a March, 2001
03 document, right?
04 A. Right.
05 Q. Give us the background here. I think you have, but
06 put it in perspective.
07 A. 60 minutes II ran a part of a program talking about
08 light cigarettes and questioning whether light cigarettes
09 were any less risky than regular cigarettes and producing
10 some information ▴▴ generated some information for people in
11 St. Louis as well as people in ▴▴ who would see the 60
12 Minutes broadcast anywhere: Illinois, Florida, that who tell
13 people that smoking lights is not a way to deal with your
14 safety concerns about smoking cigarettes.
15 And then if you look at point two however, the
16 industry and the company take a hit on this issue as well for
17 one big reason. For most people this is new information.
18 This is not something they have heard before. This alone
19 make a potentially explosive and damaging from both a legal
20 and image perspective.
21 What this says is that the focus group members who
22 are just average citizens in a research study, their reaction
23 to the 60 Minutes broadcast is to say this is new
24 information. They were not aware prior to receiving this

Page 122

01 information that light cigarettes were not safer than the
02 regular cigarettes.
03 MR. WAGNER: Your Honor, we object to the extent this is
04 offered as part of the failure to warn. It's preempted.
05 It's not specific, not as to the Class members or to this
06 lawsuit.
07 THE COURT: Overruled.
08 Q. What is a tar derby? Do you know what the tar
09 derby was?
10 A. I am not sure which ▴▴ yes. I am not sure which
11 newspaper columnist or who it was that called it the tar
12 derby but the term certainly stuck. There was a race ▴▴ I
13 guess a derby ▴▴ a race among the cigarette companies to try
14 to communicate to smokers that their cigarette was lower in
15 the one harmful ingredient that had been discussed by the
16 media.
17 So the information environment had been inundated
18 with information that tar was bad stuff and so the tar derby
19 was a race among cigarette companies to prove to consumers
20 that by smoking their brand of cigarette it would have less
21 of this bad stuff, this tar.
22 Q. What is the introduction of a health reassurance
23 product do for the psychology of the dissonant smokers?
24 A. It's an absolutely brilliant strategy. To come

Page 123

01 back and understand the dissonant smoker, here is a person
02 who is smoking and comes to understand that smoking is
03 unhealthy, is risky, may cause disease.
04 Should I stop?

14 A. So a smoker faced with dissonance: I am smoking; I
15 am receiving information that smoking is harmful to my
16 health, might even kill me. Now, there is a barrage from
17 Philip Morris and every other firm in the tobacco industry,
18 maybe there is an exception but say most every firm in the
19 tobacco industry telling people: Here is a cigarette, a low
20 tar cigarette that is, it has less of the bad stuff. So a
21 smoker could then reduce dissonance by not ▴▴ doesn't have to
22 quit, just simply smoke a cigarette with less of the bad
23 stuff because then that reduces the problem.
24 What that does is reduce the level of tension or

Page 124

01 discomfort on the part of the person. When that happens,
02 when the level of discomfort with a person's behavior is
03 diminished there is less incentive to change the behavior.
04 In other words, for a smoker who has his dissonance
05 reduced by switching to a cigarette presumably lower in tar,
06 therefore presumably with less of the bad stuff, presumably
07 healthier then there is not the same incentive for that
08 smoker to contemplate quitting.
09 Q. Did Philip Morris actually have to introduce a
10 safer cigarette in order to capitalize on the health
11 reassurance market?
12 A. No. What they had to do was connect a cigarette to
13 low tar. In other words, the public had been led to believe
14 and the information environment was abundant in the
15 information that low tar meant healthier.
16 So what a cigarette company had to do, including
17 Philip Morris, was to connect a brand to less tar because
18 then consumers would be led to conclude that that cigarette
19 is healthier. In fact Philip Morris wouldn't even have had
20 to say the cigarette is safer or healthier. People could
21 connect the dots themselves.
22 All people had to do was to say this cigarette
23 Marlboro Lights, say, has lower tar and hence it's got less
24 of the bad stuff that can kill you. It's safer. Philip

Page 125

01 Morris didn't have to say we have a safer cigarette. The
02 people will do that. Smokers will do that by themselves and
03 that's the marvelously clever thing about capitalizing on the
04 information environment, and why I spent so much time talking
05 about the information environment; the information
06 environment was all set up for the launch of Marlboro Lights.
07 The information environment created the association
08 in smokers' minds between low tar and safer and now all had
09 the company had to do was come in and connect their cigarette
10 to low tar.
11 Q. And I am not going to put the documents up. I
12 think it's already in evidence, but there is a June, 1966
13 Special Report 248. You are familiar with that document,
14 aren't you, sir?
15 A. Not by the number but I am sure ▴▴
16 Q. It's called a Market Potential of a Healthy
17 Cigarette?
18 A. Oh, yes. Oh, yes.
19 Q. Do you remember the reference to the illusion of
20 filtration is as important as the fact of filtration. Do you
21 remember that?
22 A. I think that's ▴▴
23 THE COURT: He asked if you remember.
24 A. Yes, I remember it and I actually ▴▴ if I am

Page 126

01 testifying I think that's a very important statement and I
02 would prefer you put it up if it doesn't matter to you. I
03 think it's very important.
04 Q. Let's put up ▴▴ your wish is her command. Is this
05 the portion you are referencing?
06 A. Yes.
07 Q. And explain that.
08 A. It's a very insightful comment, that all we need to
09 do is connect a cigarette to the reduction of harm in
10 people's minds. This is a battle for people's minds and so
11 even the illusion that the cigarette is less harmful, that it
12 has marvelous filtration or less of the bad stuff is
13 important to smokers as the facts themselves.
14 And another reason for that is the average smoker
15 can't determine the fact. How is the average smoker going to
16 determine whether or not a cigarette actually is safer? They
17 can't do it. And so the illusion is all that's needed.
18 People can't discern the fact.
19 Q. As you sit here today, do you have an opinion as to
20 whether or not Marlboro Lights and Cambridge Lights products
21 are actually safer or less harmful than the regular Marlboro
22 and regular Cambridge products?
23 MR. WAGNER: Object, your Honor. He specifically
24 testified in his deposition he was not being offered on that

Page 127

01 point.
02 MR. TILLERY: Can I ask a follow up for foundation?
03 THE COURT: Well, if he has not been offered for that
04 expertise ▴▴
05 Q. Do you have expertise to answer it?
06 A. No, I don't.
07 MR. TILLERY: Then can I follow up?
08 THE COURT: Follow up.
09 Q. (Mr. Tillery) Wait a minute. You are not a
10 medical doctor?
11 A. Certainly not.
12 Q. You are not a hard scientist, are you? How on
13 earth could you tell this Court you know the answer to that
14 question?
15 A. Well, I thought that Philip Morris had already
16 communicated that position to the American public fairly
17 recently so ▴▴
18 Q. And is that on the onserts and inserts throughout
19 the magazines and all the packages of Marlboro Lights in
20 November of last year?
21 A. Right. My foundation is Philip Morris's own words.

11 Q. (Mr. Tillery) How do consumers make decisions?
12 Let's move into a new area. Let's talk about the process
13 that they go through in terms of decision making?
14 A. Okay. Let me not be too long winded about this,
15 but this is going to be fundamental to my views about
16 Marlboro Lights and how Marlboro Lights are sold.
17 The core theory about decision making is called a
18 field of forces approach. I won't bore people with the
19 theoretical background, and I will get right to it. Imagine
20 that a consumer is considering a product, any product. Let's
21 take a car, and a car has a number of attributes. It has a
22 number of qualities. So a particular car might be seen as
23 high quality. It might be seen as durable. Those are
24 positive features.

Page 129

01 In a theory of decision making a positive feature
02 or positive attribute is like a force exerting some impact on
03 the consumer in the direction of the behavior. So a positive
04 force exerts force into the direction of the behavior. I am
05 more inclined to buy a car if I associate that car with high
06 quality, durability.
07 Let's say cost is a negative because other things
08 equal I would rather not spend the extra amount of money. So
09 if a car is particularly costly that's a negative force.
10 Negative forces act the opposite way. They push people away
11 from the behavior.
12 Coming down to the bottom line: A person is likely
13 or more likely to make a decision when there are positive
14 forces in the direction of behavior and less negative forces
15 in the direction of behavior. That's a fundamental axiom of
16 decision making.
17 Q. What is it called? Is there a specific model term
18 that's used by marketing theorists or by social scientists
19 that discuss this?
20 A. The basic model came out of physics. It's called
21 fuel theory and it was cornerstone of modern 20th Century
22 physics. It was brought into psychology middle of the 20th
23 Century by the eminent Curt Lewin. That's spelled L▴E▴W▴I▴N.
24 So he brought this model from physics into psychology.

Page 130

01 People have been working with this as a cornerstone
02 model. Out of this model have come more applied models. In
03 social psychology the leading applied is called Expectancy
04 Value Theory. In marketing and consumer behavior the leading
05 applied model is called Multi▴Attribute Attitude Theory.
06 Every consumer textbook either Multi▴Attribute
07 Model Theory or Expectancy Value Model Theory is introduced
08 to talk about how people make decisions. Again, the bottom
09 line is that a product that has more positive attributes is
10 more likely to be purchased, and a product that has fewer
11 negative attributes is less likely to be purchased.
12 There is one obvious implication of this. Any time
13 you can add a positive attribute to a product you increase
14 the likelihood it will be purchased. Any time you can reduce
15 a negative attribute of the product you increase the
16 likelihood it will be purchased. So let's take cigarettes.
17 There are a number of attributes that research has
18 indicated are relevant to consumers choosing cigarettes.
19 There is cachet or image been talked before a lot. Social
20 acceptability has been talked about a lot. Price has been
21 talked about. Taste has been talked about, flavor, impact,
22 okay.
23 Let's say that flavor is a positive, but if you
24 look at that more carefully some people like favor X. Some

Page 131

01 people like flavor Y. It doesn't necessarily have to be a
02 positive attribute. There is only one attribute of
03 cigarettes which is uniformly positive, can't be anything
04 else which one.
05 Q. Which one? What is it?
06 A. That's health reassurance.
07 Q. Can you tell the Court why that one attribute has
08 to be positive?

02 Q. (Mr. Tillery) Before we go on and discuss that
03 matter further ▴▴ by the way did you speak of this and
04 reference this without maybe the specific reference to the
05 underlying theories, but were these discussed? Have you
06 disclosed these?
07 A. I am trying to remember. I think I discussed this
08 at length in my deposition.
09 THE COURT: I already ruled on it. I have already ruled
10 on it.
11 Q. (Mr. Tillery) Now, there was a reference to the
12 particular modeling from physics?
13 A. Right.
14 Q. Has the model ▴▴ this field of forces model been
15 accepted by social scientists?
16 A. Oh, yes. As I indicated if became really a
17 cornerstone model in social psychology and then has been
18 adopted into the leading models taught in consumer behavior.
19 So any expert in consumer behavior, consumer
20 psychology would be relying on a derivation of that model.
21 Q. And is it called or referenced ▴▴ strike that. Is
22 it used in other disciplines, the same sorts of modeling?
23 A. It's used quite widely. Economists have a
24 different way of talking about it. Economists starting with

Page 134

01 utility theory have this theory of subjective expected
02 utility which leads them to conceive of a product that's a
03 bundle of benefits.
04 And what that means is that when you buy a product
05 you really acquire a bundle of benefits. A fundamental axiom
06 of economic theory is that you add utility by adding a
07 benefit.
08 So the theory that I am talking about is so
09 fundamental in the social sciences that if someone would say
10 this theory is wrong, it's unchallenged modern economic
11 theory would crumble because modern economic theory tests
12 rationality or assumes rationality on the basis that any
13 rational person when offered a bundle of benefits would
14 prefer the bundle of benefits with an additional positive
15 benefit to one that didn't have the additional positive
16 benefit. So it's a fundamental model in all the social
17 sciences.
18 Q. Before we get back to cigarette smokers and how
19 health reassurance is a positive attribute in this multi-
20 attribute modeling, have you written on this topic? Have you
21 researched this topic?
22 A. I have written about this class of models since
23 1972.
24 Q. And have you written a book chapter and Toward the

Page 135

01 Integrated Use of Expectancy Value Attitude Models?
02 A. Yes.
03 Q. And the Structure of Product Attributes in 1979
04 from a book?
05 A. Yes.
06 Q. And the Nature and Uses of Expectancy Value Models
07 in Consumer Attitude Research?
08 A. Yes.
09 Q. That was in 1972 Journal of Market Research?
10 A. Yes.
11 Q. Have you written, Isolating Attitudinal and
12 Normative Influences and Behavior Intention Models?
13 A. Yes.
14 Q. And that's in the 1979 Journal of Marketing
15 Research?
16 A. Yes. I have also written about them in psychology
17 journals.
18 Q. Now, if we can applying these principles, you were
19 in the process of describing how these values or positive
20 attributes from health -- actually I won't paraphrase your
21 testimony. I will have you if you would continue on.
22 A. Let's come directly to Marlboro Lights so that I
23 can make this as clear as possible. Health ▴▴ good health is
24 a positive attribute. So whether you approach this the way

Page 136

01 economists do in thinking about utility or you approach it
02 the way a psychologist would approach it, the answer is still
03 the same. No rational person should ever refuse a product
04 which has the same bundle of benefits, the same attributes
05 and in addition has health reassurance or a health benefit.
06 Q. Explain that.
07 A. Take a person who is smoking a certain cigarette.
08 We will call the cigarettes X. It doesn't matter what it is,
09 and if you said to this person, you can continue to smoke
10 cigarette X and it has all of these positive because you have
11 told me it has all these positive.
12 Now here is X prime. X prime has all the same
13 things but in addition it has health reassurance. It has a
14 health benefit. It is less risky. Any rational person ought
15 to choose the latter because it has everything the former had
16 plus health reassurance, and I think that's absolutely
17 essential to understanding Marlboro Lights and the reaction
18 to it.
19 Marlboro Lights provided health reassurance to
20 smokers. So it added to people's utility. It doesn't matter
21 if the person is in Alaska, Afghanistan, Illinois, Florida,
22 wherever. Every single person according to economic theory,
23 according to social psychology, every single person ought to
24 prefer a cigarette with health reassurance to an equivalent

Page 137

01 cigarette without health reassurance but has everything else.
02 Q. Let's stop and talk about some purchase decisions
03 in different smokers for a second, okay. The smoker that
04 has, let's say, two or three reasons for smoking, that may be
05 they have purchased Cambridge cigarettes or Cambridge Lights
06 cigarettes in part because of price. Maybe they purchased
07 Marlboro Light or Marlboro product in terms of some taste
08 component. Would it surprise you that there are multiple
09 types of reasons that will apply to this?
10 A. Oh, no. This field of forces model and any of its
11 derivations, multi▴attribute bundle of benefits assumes there
12 are going to be multiple reasons, multiple attributes,
13 multiple forces.
14 Here is the way the model plays out. Each
15 attribute is either positive or negative, and for each
16 attribute there is a weight. So for each consumer the
17 individual consumer might assign a high weight to that
18 attribute, a middle weight or a low weight, but for health
19 it's always positive.
20 The only question is for any person on earth the
21 only question is, what's the weight? It's always positive
22 which means it always leaves a person to be more likely to
23 purchase it, and the only question is, what's the weight?
24 Now I just had a revelation. There is a person who

Page 138

01 I might be completely wrong about. A person with a suicidal
02 tendency, who actually had a negative value on health might
03 say, if it has health ▴▴ a health benefit I don't want it,
04 but leaving aside someone on a suicidal ▴▴
05 Q. Have you ever written any reports where somebody
06 tried to commit suicide by smoking cigarettes?
07 MR. LOMBARDI: My objection ▴ I wanted to get it before
08 the questions but Mr. Tillery is too fast for me. I object
09 to the whole line of testimony about what every smoker must
10 think and do. Unless the doctor can tell us he has
11 investigated specific individuals in Illinois that are
12 members of this Class this is all irrelevant.
13 It's an attempt to create a generic impression of
14 what an ideal smoker is, and this case is about the
15 individuals that are members of this Class.
16 THE COURT: That's why we have cross examination. If he
17 says I got a way, his testimony ▴▴ obviously if he says it
18 applies to everybody then there are holes there you fair them
19 out and punch them to put it in the vernacular, and it's
20 getting near lunch time.
21 MR. TILLERY: This will be a good time.
22 THE COURT: Is this a good time?
23 MR. TILLERY: Yes, sir.
24 THE COURT: We will recess for lunch, back ▴▴ give you a

Page 139

01 little more than a half hour this time, quarter after 12.
02 (Lunch recess taken.)

Afternoon Session

9 *****
10 THE COURT: You may proceed.
11 MR. TILLERY: Thank you, Judge.
12 ******
13 DR. JOEL COHEN
14 called as a witness herein, having been previously
15 sworn, was examined and testified as follows:
16 DIRECT EXAMINATION
17 BY MR. TILLERY:
18 MR. TILLERY: You were in the process, before the
19 lunch break, of describing how the influence, all of these
20 matters could influence a decision of a smoker of a health
21 reassurance cigarette. And just for purposes of the record,
22 what is your understanding of what a health reassurance
23 cigarette would be?
24 THE WITNESS: It would be a cigarette that either
0003
 1 expressly or in some implied fashion conveyed the notion of
2 having a health attribute. By implied, I would mean if it
3 said low tar or lowered tar. If it said light, I believe
4 that would have an implied health representation. So those
5 would be health reassurance cigarettes.
6 Q. And you had made some statements about these
7 decision making processes by a consumer as it related
8 specifically to light cigarettes before the break. Are there
9 documents which support that view, recognize that, that you
10 have reviewed?
11 A. Yes, I have identified a number of those
12 documents.
13 Q. And, I think we are at #69, Your Honor?
14 THE COURT: We are past that, aren't we?
15 MR. WAGNER: Seventy.
16 MR. TILLERY: I'm going to show you what has been
17 marked as Exhibit #70, what is this document, first, before
18 we pull it up?
19 A. It is a memorandum from Mace to Dr. DuPuis, dated
20 July 24th, 1958. And it deals with a program to produce a
21 low delivery cigarette with flavor.
22 Q. And if we can, is this the second page of the
23 document that is up on the screen right now, doctor?
24 A. Yes, it is.
0004
 1 Q. And if you can highlight these last paragraphs,
2 please? How does this support what you have stated?
3 A. The letter writer is making the point that if a
4 product could be produced that claimed a substantial
5 reduction in tar and nicotine, or an ersatz cigarette whose
6 smoke contained no tobacco tars, and with good smoking
7 flavors, we will take the market.
8 And this goes on to say that this would be marketed
9 because of the continuing evidence linking cigarette smoking
10 with health. And even though the evidence is not altogether
11 irreputable, we have decided upon this course of action in
12 the public interest.
13 And then it makes the interesting statement, in this
14 way we have protected our bridges behind us, because we have
15 not admitted there is a direct relation between smoking and
16 health. And we are building new bridges ahead, which we
17 will need if there is a flood, but which we will not need if
18 there is no flood.
19 Now, this is in 1958. And my reading,
20 interpretation of that, I have to confess is I think the, it
21 is a very cynical statement. Basically it says if we need
22 to, if the marketplace demands it, let's have the cigarette
23 where we can claim a substantial reduction in tars and
24 nicotine. But if we don't need it, if the marketplace
0005
 1 doesn't demand it, then there is no reason for us to market
2 such a cigarette.

0006
 1 MR. TILLERY: I want to direct you to a document that
2 has already been introduced, it is Exhibit #32?
3 A. I have that.
4 Q. Alright.
5 Q. And before we get in and show that document, what
6 is this document? Do you have it in front of you, sir?
7 A. It is titled Exit Brand Cigarettes, a Study of
8 Ex-Smokers. And it is authored by F.J. Ryan, at the Phillip
9 Morris Research Center. And distributed to a number of
10 people at Philip Morris, and approved by W.L. Dunn.
11 Q. This is a March 1978 document?
12 A. Right.
13 Q. And if we can go to 048288, please. Enlarge the
14 highlighted portion.
15 What is the significance of this document in terms of
16 the opinions you have given, doctor?
17 A. In this paragraph, the author is distinguishing
18 between the marketplace, real people, real cigarette smokers
19 out there in the world, and the people who were brought in
20 for the purpose of this study.
21 And if you look at the last part of this, it is
22 likely, for example, that the popular belief that low tar
23 cigarettes are healthier than full flavor cigarettes, means
24 that people who are concerned about their health will be more
0007
 1 likely to switch to low tar products than people who are not
2 concerned about their health.
3 And I have already testified that I believe this is
4 correct, based on established theory and my understanding of
5 smoker behavior.
6 Q. There is another portion of this document, if you
7 can highlight this, the second part, the second paragraph.
8 A. I see.
9 Q. People who are concerned about their health, have
10 you summarized the entire document, sir?
11 A. Okay, this sort of paraphrases the point I was
12 making before about the dissonent smoker. What this section
13 is saying is that the largest group of all are people who are
14 convinced that smoking is dangerous to their health, and they
15 are torn between a conscience that urges them to quit, and a
16 hedonistic desire to continue doing something they enjoy.
17 So this describes the very conflict that this theory
18 suggests that people are experiencing. People are anxious.
19 They are becoming convinced that smoking is dangerous to
20 their health. They would like to quit, they would like to
21 continue doing something they enjoy.
22 Q. You mentioned so far the word light as a
23 reference point in terms of health reassurance products.
24 What is the significance of using the words lowered tar and
0008
 1 nicotine on a package of Marlboro Lights?
2 A. Lowered tar and nicotine conveys to people
3 exactly what it says, lowered tar and nicotine. Since we,
4 we know that in the information environment, lower, lowered
5 tar, means less of the bad stuff that leads to cancer, less
6 of the bad stuff that leads to disease. Then that
7 expression on a pack of cigarettes, lowered tar and nicotine,
8 directly implies a healthier cigarette.
9
20 MR. TILLERY: Well, I mean again, is there any
21 indication that when the folks of Illinois who purchased a
22 package of Marlboro Lights, and see the words lowered tar and
23 nicotine, are going to react differently than the people in
24 Missouri or California or Massachusetts or somewhere else?
0009
 1
5 A. I can think of no valid evidence to suggest that
6 people in Illinois would interpret commonly understood
7 English language words differently than people in general.
8 I have worked on any number of cases involving alleged
9 deception, and it is always assumed that unless there is
10 evidence to the contrary, that unless specialized knowledge
11 is required, that plain spoken language clearly communicated,
12 it has a well understood meaning, and I can think of no other
13 interpretations for lowered tar and nicotine than it means
14 there is less of the bad stuff.
15 And I think any smoker who has been exposed to any
16 health related information had to understand that tar was
17 bad, and bad for you. So if the cigarette says on the
18 package lowered tar and nicotine, it has to mean less of the
19 bad stuff that can make you sick.
20 MR. TILLERY: Now, lets take that right there, back
21 to this point of these attributes, positive and negatives,
22 and the decision making process, this multi-attribute model
23 that applies to any consumer decision making process.
24 What does that tell you about the health implication
0010
 1 about the word light or lowered tar and nicotine, and in
2 every consumer's decision when they purchase either Cambridge
3 Lights cigarettes or Marlboro Lights cigarettes, irrespective
4 of what their --
5 MR. WAGNER: Objection, that lacks a foundation.
6 THE COURT: Overruled.
7 A. I think it is very clear that lowered tar and
8 nicotine is a positive health attribute. It can be no other
9 interpretation, because lowered tar and nicotine means it has
10 less of the bad stuff that can make you sick. It has to
11 function as a positive attribute. Economists would say it
12 has to function as additional benefit. So any cigarette
13 which claimed lowered tar and nicotine, would be perceived
14 more favorably than a cigarette that did not claim that.
15 Q. And would that be every time, to everybody?
16 MR. WAGNER: Same objection.
17 A. For all people.
18 THE COURT: Overruled.
19 A. For all people. Outside of the aberrant,
20 suicidal individual. I think it is absolutely fair to
21 assume that every single person would like to live longer,
22 live healthier. And so a cigarette that said explicitly that
23 this cigarette has lowered tar and nicotine directly implies
24 improved health. It has to be a positive attribute, it can
0011
 1 have no other function, other than to lead people to be more
2 inclined to purchase the product.
3 MR. TILLERY: Now, there has been comments made in
4 this courtroom about the fact that Philip Morris didn't put
5 the words safer or healthier or less harmful on their
6 packages of cigarettes, okay? Just assume that for a
7 minute.
8 A. Okay.
9 Q. Is there a situation, if you put this case in
10 proper perspective, in terms of their marketing, is there a
11 situation that you can explain to the Court as to why it
12 would have been difficult, if not impossible, for them to
13 have said that back at the time at the release of these
14 cigarettes?
15 A. Well, I think it would have been quite difficult
16 for them to say it, because they lacked adequate
17 substantiation to be able to say a product was safer. And
18 that would leave them open to all sorts of risks, including,
19 I would assume, legal risk.
20 So to make a flat out statement that the product is
21 safer, when they can't defend that statement, would, I think,
22 be very risky. But there is a second point. They didn't
23 need to do that, they could avoid all of that risk by saying
24 lowered tar and nicotine, because everyone would universally
0012
 1 understand that lowered tar and nicotine means safer, so why
2 would they even need to say that?

14 MR. TILLERY: At the time, during the release of
15 Marlboro Lights and Cambridge Lights cigarettes, were they
16 publicly taking views, Philip Morris I am talking about, that
17 their other regular products were not specifically linked to
18 disease?
19 A. Well, yes. We have been over documents from
20 both Philip Morris and the Tobacco Institute that basically
21 denied the link between any cigarette and cancer or
22 disease. So, if they were to say light cigarettes or
23 Marlboro Lights cigarettes are safer, the implication is that
24 their other cigarettes are not. Which would make it very
0013
 1 difficult, I would think, to market a cigarette that you have
2 now labeled as not safer. I can't imagine that would be
3 something they would want to do.
4 Q. Do you have information that Philip Morris, at
5 the time of the launch of Marlboro Lights, was aware that the
6 representation of lowered tar and nicotine would lead
7 consumers to understand the health implication of that
8 statement?
9 A. Yes, I think their documents make this clear.
10 Q. Do you have this document, sir?
11 A. Which is that? Is that this one here?
12 Q. Yes, #71, Your Honor. What is this document,
13 sir?
14 A. Well, it is stated to be a statement of
15 position. It covers a lot of territory, including the
16 position that cigarette smoke has not been established as a
17 cause of human disease. And there is discussion of specific
18 disease.
19 And the evidence, there is also discussion later on
20 about why mandatory tar and nicotine labeling would be
21 misleading. And it goes on to talk about other issues for
22 which there is a position stated as well.
23 Q. If you could direct your attention to page forty
24 of the document, let's see if we have a --
0014
 1 Q. If you could direct your attention to that
2 specific reference, sir?
3 A. Yes.
4 Q. I will, just for the record, this is on page
5 forty of the document, that additionally, if it were assumed
6 that smoking causes disease, any tar and nicotine labeling
7 requirement might not be only misleading, but dangerously
8 so.
9 For example, a smoker would assume, as congress is
10 asked to determine as an established fact, in order to
11 require labeling that lower tar and nicotine content means
12 safer cigarettes, do you see that?

22 MR. TILLERY: Go to the bottom of that page, please,
23 that same page. Accordingly, a smoker could be lulled into a
24 false sense of security by labeling which indicates reduced
0015
 1 tar and nicotine content when harmful ingredients have not
2 been reduced at all. A smoker may compare two packs of
3 cigarettes, and choose one on the grounds that its tar and
4 nicotine content is less than the other.
5 Presumably he would be doing so because of his belief
6 that reduced tar and nicotine content makes the cigarette
7 safer. Here again, he is receiving a possibly false
8 assurance of safety, because there is no way of knowing
9 whether or not the differences between the two cigarettes is
10 at all significant. Even if one were to assume that reduced
11 tar and nicotine content made cigarettes safer, no one knows
12 how much reduction would be meaningful.
13 Now, this is a document of the Tobacco Industry on
14 which Philip Morris, rather Philip Morris signed and takes a
15 position with respect to, at that time, proposed FTC conduct,
16 correct?
17 A. That is my understanding.
18 MR. WAGNER: Your Honor --
19 MR. TILLERY: And this is a document that would
20 never, it was released, I believe Mr. Wagner is correct, in
21 Minnesota, and then posted by Congressman Bliley on the
22 website in the late 1990's, is that your understanding as
23 well?
24 A. 1998.
0016
 1 MR. TILLERY: Yes.

8 MR. TILLERY: If we could go to the very next part of
9 that, this is a foot note. Can you enlarge that? What is
10 the significance of that statement, Dr. Cohen? Do you see it
11 in your --
12 A. Yes. The point is that even though there is a
13 warning on cigarette packages, still above and beyond that
14 warning, the notion that a cigarette has less nicotine is not
15 voided by the warning. What the warning would do is remind
16 the smoker that the lower nicotine cigarette is not
17 necessarily completely safe. So here's a warning, and it
18 says what it says, as a required warning.
19 But the manufacturer has gone beyond the warning and
20 made an affirmative statement about lowered tar and
21 nicotine. In making that affirmative statement, consumers
22 are justified in interpreting that as implying that the
23 cigarette is safer, even though the warning makes it clear it
24 is not completely safe.
0023
 1 MR. WAGNER: If you are finished with that, then I
2 object to that, and move to strike that. Now his testimony
3 regarding the utilization of the Surgeon General --
4 MR. TILLERY: No, we are not making that claim.
5 THE COURT: No, I think it gets around that,
6 overruled.
7 MR. TILLERY: And if you could go to the last page of
8 that, yes. And if you could direct your attention to that
9 portion, again this is the last of those, it is on page
10 forty-two of your document, yes.
11 And if you can, if you take your time and read that,
12 and then explain how that corresponds with what you have just
13 been describing to the Court?
14 A. This paragraph enlarges upon the footnote we just
15 talked about. And it calls attention to the fact that
16 smokers are warned by the warning that does appear in
17 cigarette advertising.
18 Now, even though that warning appears, the effect of
19 the warning can only be to let smokers know that the
20 cigarette is not absolutely safe. That is what this is, it
21 is not absolutely safe. But there is no reason for the
22 smoker not to conclude that the cigarette is substantially
23 safer.
24 And then it goes on to make, I think, a telling
0024
 1 point. Indeed that conclusion is virtually inescapable,
2 since the very reason for the proposed labeling of tar and
3 nicotine content is to encourage reduction of that content,
4 thereby purportedly making the cigarette safer.
5 I won't go on to read the rest. I think this also
6 applies forcefully to putting a lowered tar and nicotine and
7 light on a cigarette package. Because lowered tar and
8 nicotine would lead to the same, virtually inescapable
9 conclusion that a cigarette is substantially safer, even
10 though consumers may have been warned that the product is not
11 absolutely safer.
12 MR. LOMBARDI: Your Honor, same motion to strike on
13 the basis of pre-emption.
14 THE COURT: Overruled.
15 MR. TILLERY: How would the smoker, switching to
16 Marlboro Lights, understand that the cigarette product, the
17 new one that he has gone to, would be healthier than the old
18 one, the regular cigarette product?
19 A. It is a very simple step. All the smoker has to
20 do is understand that tar is bad. And the information
21 environment had a virtual drum beat of information to that
22 extent. Once Marlboro Lights could then link their
23 cigarette to the reduction in tar, by simply saying, as it
24 did on every package, lowered tar and nicotine, once it did
0025
 1 that, then the cigarette inescapably, using words from this
2 paragraph, inescapably leaps to the conclusion that the
3 cigarette is safer.
4 Q. How do you know, do you know, if Philip Morris
5 intended light cigarettes, that is Marlboro Lights
6 cigarettes, Cambridge Lights cigarettes, to be marketed as
7 health reassurance products?
8 A. Again, I think the best evidence would be the
9 documents themselves.
10 Q. Do you have this document, sir? This is #72,
11 Your Honor. What is this document, sir?
12 A. This is the first draft of a proposal developed
13 in, I think June, 1980. And it is a file of some person at
14 Philip Morris, a person named Dunn.
15 Q. And if you could go to the, yes, that labeling in
16 fact, in the Tobacco Industry production of the low delivery
17 cigarettes is the assumption that less tar and less nicotine
18 represent a safer cigarette. And the part that has got a
19 line through it.
20 How is that consistent with your opinion, sir?
21 A. It is not only consistent with, it virtually says
22 in their own words what I have been saying. Basically the
23 Tobacco Industry can promote a low delivery cigarette,
24 knowing that less tar and less nicotine represent to
0026
 1 consumers a safer cigarette. There can be no dispute about
2 it.
3 Q. Can you show, I think it is this Morgan
4 deposition clip that is in evidence, do you have that next
5 clip?
6 MR. LOMBARDI: And, Your Honor, just for the record,
7 I think this document has been used before, and there is
8 marginalia on the document that we can't identify, and I
9 think Your Honor admitted it subject to --
10 THE COURT: Yes, with the exclusion of that
11 marginalia.
12 MR. TILLERY: And you have seen this depo, haven't
13 you?
14 A. I haven't seen it, I have read it.
15 ******
16 (Video clip played.)
17 UNIDENTIFIED SPEAKER 1: Which low tar cigarettes
18 were to a large extent, which, because of that health
19 concern.
20 UNIDENTIFIED SPEAKER 2: Objection to the form. Are
21 we in a particular time frame now?
22 UNIDENTIFIED SPEAKER 3: That is a good idea, why
23 don't we keep it, when you brought out Marlboro Lights in to
24 that early '70's time frame, thank you, counsel.
0027
 1 UNIDENTIFIED SPEAKER 1: There were, I believe a
2 significant number of people who were switching to low tar
3 for the reasons that you stated, which is the continued and
4 increasingly publicized issues of smoking and health.
5 There were probably also some people who switched
6 because they in fact liked a less harsh taste, but I would
7 agree that the majority of people smoking low tar were doing
8 it surrounding their perceptions of the health issue with
9 cigarettes.
10 (Video clip ends.)
11 ******
12 MR. TILLERY: Skipping ahead, he just raised
13 something that I want you to, to this less harsh taste
14 issue.
15 What is the significance of that when they, if, when
16 they smoke, a consumer smokes a cigarette and discerns,
17 because of ventilation, what they think is a less harsh
18 taste?
19 A. I have reached an opinion about that, and there
20 are also documents that support this opinion. People can use
21 the less harsh taste as confirmation that the cigarette has
22 less tar and is healthier. People do not understand how
23 smoking effects their health. They only know that there is
24 evidence that it does, however disputed that evidence might
0028
 1 have been over various periods of time.
2 Now, smoke reaches the throat, obviously, before it
3 reaches the lungs. The average person, therefore, is going
4 to make a logical assumption that if it feels less harsh in
5 the back of the mouth, in the throat, that, that it is a less
6 harsh cigarette. It is less irritating, consequently it is
7 less likely to cause harm further down.
8 So I am making kind of a combined point here. One
9 point which I think is very important is that, it is a
10 confirmation point. People don't know how a cigarette
11 company made a product which they are now calling lowered tar
12 and nicotine or light. They don't know whether it is
13 different kind of tobacco, different kind of processing,
14 people are not experts in cigarette consumption. So they go
15 by what they can experience, what they can feel, as well as
16 what is on the package.
17 Now, the package says lowered tar and nicotine, and
18 it says light. And now their experience of that product is
19 confirmation that the product itself is a light, lowered tar
20 product, because that is the way it feels.
21 Q. Is there recognition of this principle in
22 marketing?
23 A. Marketers sometimes talk about this as a
24 Listerine effect.
0029
 1 Q. Why don't you explain that?
2 A. Listerine was formulated and sold for many years
3 as a product to kill germs that cause colds. A subject of a
4 much celebrated court case.
5 The makers of Listerine apparently deliberately made
6 the product taste much stronger and more medicine-like than
7 they needed to. And the reason for that was that if it
8 tastes that mediciny (PH) and that strong, it must be killing
9 germs that cause colds. If they made the product to be
10 lighter, softer, then, gee, it can't be as strong, it is
11 probably not doing its job as well.
12 So applying that principle here, the lack of
13 harshness, the aeration of the cigarette, where the air is
14 coming through and leading to a less harsh feel, is virtual
15 confirmation that a cigarette is healthier.
16 Q. So when a person smokes, say they notice a
17 difference, and they feel a lighter or less harsh taste, what
18 does that do in terms, psychologically, in terms of some
19 confirmation, when they see on the package, when they see
20 this?
21 A. Well, as I have indicated, the feel of the smoke
22 in their mouth is confirmation that the product is in fact
23 delivering lowered tar and nicotine, which increases the
24 health reassurance of the cigarette.
0030
 1 Q. What about this compared, I have got another
2 three foot tall box of Marlboro Reds over there, but what is
3 the significance, you just talked about packaging, what is
4 the significance of that, this one, versus this bright red
5 one, in terms of marketing and what you are trying to convey
6 to the consumer?
7 A. Marketers well understand, and documents reveal
8 that cigarette industry also well understood that consumers
9 take meaning away from colors. So for example, light color,
10 white color, suggests light. The color itself will do
11 that. And this process can almost work subconsciously, and
12 it certainly re-enforces the right of lowered tar and
13 nicotine.
14 So putting a cigarette in a white package, even
15 without consumers really understanding what the package is
16 doing, conveys purity, conveys lightness, and re-enforces the
17 very notion --
18 There's documents that go into this, it is even the
19 case for tipping paper on a cigarette. Cigarette companies
20 have experimented with different colors of paper as tipping
21 paper on the cigarette around the filter. And it turns out
22 that white leads people to believe that the cigarette is less
23 strong, less harsh and presumed to be safer, even if there is
24 no difference in the cigarette.
0031

17 MR. TILLERY: Have you relied upon depositions of Leo
18 Burnett executives as part of the basis for your opinion as
19 to what Mr. Philip Morris specifically intended when it was
20 marketing its lights?
21 A. Yes, I have.
22 Q. And do those depositions give you insight as to
23 whether or not the word light was used to convey a health
24 reassurance to the smoker or some taste component that they
0033
 1 were trying to get out to the consuming public that these
2 tasted different?
3 A. They convey to me very clearly that the intent
4 was to use light to convey health view reassurance.
5 MR. WAGNER: I'm sorry, are you going to the discuss
6 the deposition in this case?
7 MR. TILLERY: Yes, the video deposition of Adams
8 taken on, I'm sorry I misspoke. It is a Leo Burnett
9 deposition of Mr. Adams and it was May 31st, '02, page
10 sixty-eight, I'm sorry, eighty-six through eighty-nine.
11 Why don't we show that.
12 ******
13 (Video clip played.)
14 UNIDENTIFIED SPEAKER 1: In your opinion why did
15 people move to this product?
16 UNIDENTIFIED SPEAKER 2: Because the whole, the whole
17 area of light, lighter cigarettes was being positioned as
18 something that was better for them. It took some people
19 longer than others to get used to the taste, or to develop a
20 taste for it.
21 UNIDENTIFIED SPEAKER 1: So the reason that it took a
22 long time for this market to develop, in your opinion, is
23 because of the taste? Overcoming the different taste, is
24 that correct?
0034
 1 UNIDENTIFIED SPEAKER 2: To get used to the taste,
2 yes. Some people got with it more quickly than others.
3 UNIDENTIFIED SPEAKER 1: And the reason the lights
4 market grew as a category, was because smokers thought that
5 it was better for them, is that correct?
6 UNIDENTIFIED SPEAKR 2: This whole area had been
7 positioned for smokers as something that was better for
8 them.
9 (Video clip ends.)
10 ******
11 MR. TILLERY: Now, did you rely upon that statement?
12 A. I am not sure I understand the legal definition
13 of rely. I find it absolutely consistent with everything
14 that I have learned and my prior testimony. So in that sense
15 I guess I should say I rely on it.

15 MR. TILLERY: Okay. Now, what was significant about
16 that statement to you, sir?
17 A. Well, the statement that was read in? It doesn't
18 matter, I think, whether the information environment about
19 low tar or lowered tar or light cigarettes being healthier
20 was created in part by the Federal Trade Commission or the
21 man in the moon.
22 The fact is that Philip Morris put lowered tar and
23 nicotine on the box, put light on the box. They took
24 advantage of the information environment, and that is the
0036
 1 issue. It doesn't matter to me whether they created that in
2 the public mind that low tar is, is safer.
3 But, in fact health authorities contributed to that,
4 FTC contributed to that, and then Philip Morris is put in the
5 box where they made a decision, conscious choice to link
6 Marlboro Lights to lowered tar and nicotine.

16 MR. TILLERY: Now, taste, was taste an obstacle to
17 the release of these cigarettes?
18 A. As the deposition clip we just saw indicates,
19 taste was a severe obstacle to the marketing of Marlboro
20 Lights, and all light cigarettes. There is an abundance of
21 documents that establishes beyond a shadow of a doubt that
22 people did not start smoking Marlboro Lights primarily for
23 the taste. In fact, taste was something to be overcome, as
24 executives, from Philip Morris, from other tobacco companies,
0037
 1 from advertising agencies, have all commented about.
2 Q. We will come back to that in a minute. You
3 commented very early today about, a little bit about your
4 experience with surveys, okay. I would like, if you would,
5 just to spend a couple of minutes and tell the Court your
6 experience doing survey work, and your analysis of surveys?
7 A. Well, I think I said earlier that I was director
8 of Social Science Research Analysis, and in charge of every
9 survey the organization did, that had to do with social
10 science research.
11 I have also been consultant to the Federal Trade
12 Commission on survey research. I was asked by the National
13 Cancer Institute to run the nation wide survey to determine
14 what people understood low tar numbers to mean.
15 I hate to use the word expert in talking about
16 myself, but I am considered an expert in survey research.
17 Q. Okay, have you reviewed survey research relating
18 to light smoker's perceptions and beliefs?
19 A. Yes, I have.
20 Q. What does the most reliable survey data tell us
21 about light smokers in terms of their perception and beliefs?
22 A. There is substantial consistency among all
23 reliable surveys that smokers believe that lower tar
24 cigarettes were healthier than other cigarettes. Different
0038
 1 surveys ask different questions, they ask them different
2 ways. But if you look at all the survey evidence, and put it
3 together, there is the unmistakable conclusion that consumers
4 understand that lower tar cigarettes were safer.
5 Q. I'm going to refer you to a group exhibit now,
6 this is #74, Your Honor. What are these documents that make
7 up --

17 MR. TILLERY: My question is, if you could, just for
18 the record, indicate what these documents are in this group
19 exhibit?
20 A. They are a group of representative surveys that I
21 think are proper in the sense that they represent appropriate
22 ways of gathering this information from smokers via survey
23 method.
24 Q. Does this group exhibit include the Roper Study,
0039
 1 the Thomas and Larson Study, the Knowledge Networks Study
2 that was done in connection with this lawsuit?
3 A. Yes, it does. There are other surveys. I was
4 responsible for reviewing the Chapter that covered survey
5 evidence about smokers for the 1989 Surgeon General's
6 Reports. Earlier than that I had examined every survey done
7 that I could find, up until the time of the Chippolone case,
8 which was the mid-eighties. So I think I am familiar with
9 virtually all, if not all, surveys in the public domain, at
10 least having to do with smoker's attitudes and beliefs.
11 I think these surveys speak to the issue fairly and
12 are appropriate for this Court's consideration.
13 Q. Are there limitations to the utilization of
14 survey data in terms of trying to understand specifically
15 smoker's beliefs?
16 A. Yes. Basically a survey is a data, or it
17 presents data --
18 Q. I'm sorry I didn't hear you.
19 A. A survey represents or presents a data point.
20 Q. Alright.
21 A. A survey is generally not a good way to examine
22 how people think, or even what they think, in any detail.
23 Especially if you are only going to devote a few questions to
24 the topic. And so surveys are really snapshots.
0040
 1 A related issue is that most surveys that I have seen
2 that deal with cigarette smoking focus on believe
3 questions. They ask people, do you believe that, and then
4 they fill in the blank. Do you believe that low tar
5 cigarettes are healthier? Do you believe that.
6 There are different ways the question is asked, but
7 lets just take that, I think to make a useful point.
8 When answering a question like, do you believe that,
9 the respondent has to decide what the criterion is to answer
10 yes. Most beliefs are not held with certainty. I mean, I
11 am pretty certain this is a hard desk, I can answer that
12 question yes.
13 But the question, do you believe that cigarettes are
14 hazardous? Do you believe that light cigarettes are safer?
15 As we have seen, the information environment created some
16 degree of controversy in some of these areas for consumers.
17 So in answering the question, respondent has to say,
18 basically, how certain do I have to be to say yes. So, most
19 surveys will under report people's beliefs, such as a belief
20 about light cigarettes or low tar cigarettes being less
21 hazardous.
22 If the question was, do you think low tar cigarettes
23 are less hazardous, or do you think they are safer? If I was
24 somewhat uncertain, and I adopted a fairly stringent
0041
 1 criterion, I'm going to say, well, I don't know, or no.
2 Because no is actually a smarter answer from the standpoint
3 --
4 Q. Why is no a smarter answer?
5 A. Well, you don't look foolish. After all, if it
6 isn't certain, then no is a perfectly reasonable answer. So
7 we know don't know how many respondents in any given survey
8 adopt a stringent criterion and how many adopt a more lenient
9 criterion.
10 In truth, when people have a belief that, gee, this
11 may be true, they still may not answer yes, because yes
12 commits them to it is true. So you will under report yes
13 answers on those kind of surveys.
14 Q. Is there a reference that you mention, within
15 category and between category choice?
16 A. Oh, I think that is a pivotal issue on all
17 surveys, that is critical, as far as I am concerned.
18 Q. Could you explain that to the Court?
19 A. Sure. When a survey focuses on the brand a
20 person is smoking, and asks questions about that brand, such
21 as, why did you start smoking the brand you are currently
22 smoking, remember that that may be a different reason than
23 the reason to switch down from a regular to a light
24 cigarette.
0042
 1 I refer to the switching down decision as a between
2 category decision. There is a different category of
3 cigarettes, lets just simplify. Regular full flavored on one
4 hand, that is one category. Lowered tar light, is the
5 second category.
6 So when people were concerned about their health, and
7 they learned that tar was the bad guy, and they then switched
8 down from a regular cigarette, no matter which brand it was,
9 and they switched down into a lowered tar cigarette or a
10 light cigarette, they did that on the basis of health. And
11 the documents make it absolutely clear that is true.
12 Now, survey researcher comes along, and says, why did
13 you start smoking your current brand? But after making the
14 between category decision, the smoker now must find the
15 satisfactory brand within the category. And smokers
16 experiment. They may in fact have chosen the brand they are
17 currently smoking for taste. They may in fact prefer the
18 taste, for example, of a Marlboro Lights to the taste of some
19 other light.
20 Within category decision may be based on taste, but
21 as we have seen from the document, the between category
22 decision, moving down from a regular cigarette to a light
23 cigarette, is not going to be based on taste because there is
24 uniformity in the end.
0043
 1 Q. Let me stop you for a second, I'm sorry for
2 interrupting.
3 I want to ask you to assume something. Last week we
4 heard testimony in this courtroom from one of the class
5 representatives in the case, and described that he had smoked
6 regular cigarettes for a period of time, and then for health
7 reasons went to a mild and then light cigarettes. And then
8 ultimately, some years later, switched to Marlboro Lights
9 cigarettes, okay?
10 And the reason he gave, one of the reasons was
11 because of some promotion item that was there, that was
12 involved.
13 A. Okay.
14 Q. And he was asked the question about his beliefs,
15 and he answered all these. How does that fit, for example,
16 if that were a respondent in a survey, and asked specific
17 questions, can you explain how the answers to those may
18 distort the results? Can you explain that to the Court?
19 A. Yes, it presents a terrible problem for the
20 survey researcher. If the survey researcher asks a
21 straightforward question, why are you smoking the brand you
22 are now smoking, in this case I guess Marlboro Lights, the
23 person will honestly answer, taste. Because the within
24 category choice -- Or was it promotion?
0044
 1 Q. It was promotion.
2 A. Fine, the within category choice was made on
3 promotion. You cannot conclude from that that the reason the
4 person switched from a regular cigarette to a low tar
5 cigarette is because of that.
6 As a further problem, cognitive psychologists have
7 established convincingly that the last decision you make is
8 the more memorable one, in memory, for these kind of routine
9 decisions. That is the more accessible piece of information.
10 So when you ask someone, why are you smoking this
11 brand, your current brand of cigarette, what comes to mind
12 first is the reason for the within category choice, which
13 could be promotion, could be flavor, could be any one of a
14 number of things.
15 It is very difficult to then say to the person, no,
16 no, no, no, I want you to go back and think about what made
17 you choose a cigarette in this category to begin with. You
18 are asking for a lot more work on the part of the survey
19 respondent.
20 Most surveys did not ask people to do that kind of
21 mental work. And so what you get in the results of these
22 surveys is an over reporting of within category reasons and
23 an under reporting of between category reasons.
24 Q. Lets stop for a second and go backwards here for
0045
 1 a moment, and look at this multi-attribute model. Positives,
2 negatives, and ultimately a decision is made within a
3 category about a particular, say, light cigarette.
4 You indicated, I think, to Judge Byron, that there
5 could be multiple factors, but that in your mind health was
6 invariably a positive attribute of that decision?
7 A. Yes.
8 Q. How does the fact that there could be multiple
9 attributes effect this as well? That there could be
10 different things within the minds of the consumers when they
11 are asked these questions?
12 A. Well, if I understand your question, we are
13 still, if we are still focusing --
14 Q. Sure.
15 A. On the survey question that would ask people, why
16 are you smoking your current brand? If that current brand
17 is one of the brands they have tried in the low tar category,
18 then they, they will pick an attribute that differs between
19 those brands.
20 In other words -- That may not have been clear.
21 People are not going to say health, if health is common, if
22 health reassurance is common to the new category. Then
23 health can't be a reason for any specific brand choice. It
24 has got to be something that differentiates one brand from
0046
 1 another. I don't know if that was clear.
2 Q. It does, it does. Have you looked at the
3 internal research of Philip Morris with respect to some of
4 these issues as well?
5 A. Yes. Philip Morris did a lot of qualitative
6 research.
7 Q. Explain to the Court what qualitative research
8 is?
9 A. Most marketers, and certainly Philip Morris, and
10 from my reading of documents, for twenty odd years, most
11 cigarette companies relied more heavily on qualitative
12 research than on survey research. In fact, I have been hard
13 pressed to find evidence that Philip Morris or anyone else
14 ran surveys to learn anything about the smokers. About why
15 smokers choose particular brands.
16 Certainly they hired Roper to look at larger
17 issues. The relationship of cigarette smoke and health.
18 But, for the brand managers purpose, this is what I am
19 focusing on.
20 Brand manager wants to learn something about why
21 consumers are buying that product. Say Marlboro Lights.
22 Wants to learn something that will help the advertising, help
23 the package design person. Invariably they do qualitative
24 research.
0047
 1 Qualitative research allows you to explore the
2 person's reasons in depth. You don't ask a one shot
3 question, do you believe that. You explore things, and so
4 you can probe and really learn a lot more about what people
5 think and how they think and why they think.
6 Q. When a person has, as you said, been within a
7 category, lets say, and they have gone from lets say a
8 regular cigarette to a light cigarette over time, can you
9 describe what happens to a cigarette smoker's perception of
10 their decision to smoke a light cigarette?
11 A. Well, over time, a number of things happen. I
12 have already talked about that they focus on the within
13 category of the decision process. But something else
14 happens, and it very important with respect to cigarettes.
15 When people start smoking a cigarette in a lower tar
16 category, at first they clearly notice a difference. All
17 the documents I have seen have tested that, and people don't
18 like the taste of the lower tar product.
19 After a while, they acclimate to it. And in fact
20 they, there is evidence, there is documentary evidence that
21 suggests that people have a hard time going back and smoking
22 a previous cigarette, because it will now be experienced as
23 harsher.
24 And the other issue that is related -- And I will end
0048
 1 so that you can state your objection -- Is that cigarettes
2 have a property, which I am sure other people talk about, or
3 have talked about, called elasticity, which allows a smoker
4 to extract the amount of nicotine that a smoker desires,
5 within limits.
6 And because of that, smokers learn to adapt to a
7 lower, lower tar cigarette, learn how to smoke it, and then
8 they try to go back to a regular, full flavored cigarette,
9 their smoking pattern will be that the cigarette has effects
10 they don't like.

4 MR. TILLERY: Is there any reason why a consumer
5 would have a psychological incentive to forget the health
6 reason for choosing, let's say the initial health reason or
7 to move it into a different plane of thinking?
8 A. Well, lets talk about in a survey research
9 context.
10 Q. That is what I meant, I should have said that.
11 A. Well, one thing to understand is that it is
12 basically unpleasant to think about doing something very
13 stupid, especially if that thing can injure your health. So
14 people don't like to think about those things. And they
15 also don't like to admit to others that they do stupid
16 things.
17 So, when asked questions in a survey about why you
18 started smoking a light cigarette, or a low tar cigarette,
19 people may not want to say it was health, and they may not
20 even want to think about it. Because if you bring up health,
21 you basically renew dissonance, you basically increase the
22 level of the anxiety about, what have I been doing all these
23 years, have I been harming my health? And so some people
24 would just rather not think about it. Just rather avoid it
0050
 1 and not talk about it.
2 Q. What impact does this have when they are
3 self-reporting in terms of their reasons for smoking lights
4 in a survey that you just indicated?
5 A. They would lead people, at least some people, to
6 stay away from health as an answer, because they just don't
7 want to talk about smoking cigarettes in relation to health.
8 They may not want to think about it.
9 Q. Is it possible for a consumer to deny that light
10 cigarettes are safer in any way, yet still purchase light
11 cigarettes because they are represented as lower in the bad
12 stuff of the cigarette?
13 A. Yes, I mean the denial may be a public denial, as
14 in a survey. It also may be a personal denial, not even be
15 willing to admit to yourself that you are doing it. But you
16 still do it.
17 I can give you some examples, this is not confined to
18 cigarettes. I am a baseball fan, and I pretended to be a
19 pitcher at UCLA until good fortune happened to hurt my arm,
20 and I could move on to something that I could do better than
21 throw a baseball. And I always noticed something.
22 I have yet to see a pitcher step on a foul line,
23 going out to the mound. Now, if you had a survey of
24 pitchers, and you said, do you believe that stepping on a
0051
 1 foul line will reduce your performance in the next inning
2 that you have to pitch, no, of course not, no, no. But they
3 won't do it. They won't step on the foul line.
4 So, that is, I think, an illustration of people who
5 are willing to say they don't believe something. But if you
6 look at what they do, they act like they believe it.
7 I'm not sure that, for example, that I really need to
8 take a multi-vitamin every day. I read some reports that say
9 if you eat a well balanced meal you don't have to take a
10 vitamin every day. But I don't know whether to believe them
11 or not, so I take one. So I'm not sure how I'd answer a
12 survey question if someone asked me if you should be taking
13 multi-vitamins, are they essential for your health? I don't
14 know how I would answer it, but I take them.
15 So, again, in doing surveys, there are inherent
16 limitations. And they all point the same way. There are
17 inherent limitations to surveys, you are going to under
18 report a person's true belief, in this case that cigarette
19 smoking is harmful and that light cigarettes are, relatively
20 speaking, safe.
21 Q. What about the smoker who claims not to believe
22 that any cigarette is harmful to his health? If he chooses a
23 light cigarette. I mean, what about that smoker?
24 A. Well, the best way for a person to protect
0052
 1 himself from dissonance is to simply say, I don't believe the
2 evidence that cigarette smoking is harmful. I just don't
3 believe it.
4 And some of the research I have done, including my
5 1965 survey in response to the Surgeon General's report, I
6 found that, and I have seen it in other surveys where people,
7 particularly heavy smokers, don't want to say, and possibly
8 don't want to admit that cigarette smoking is seriously
9 harmful. They may believe, oh, it depends on how much you
10 smoke, or it really comes down to genes, constitution.
11 Nevertheless, whether they believe cigarette smoke is
12 harmful or not, assuming they can put up with the taste of a
13 light or low tar cigarette, why not? It is an added benefit,
14 why take the chance that you are wrong.
15 And so even for a smoker who claims not to be
16 terribly distressed about health, even that consumer would
17 have an incentive to smoke a cigarette that, after all, may
18 be safer, just like the multi-vitamin. It might be good, so
19 why not do it.
20 Q. Assume for purposes of this question, Dr. Cohen,
21 that there was a hypothetical Marlboro Lights cigarette that
22 really did deliver meaningfully less tar to all smokers than
23 a Marlboro Reds cigarette, or that is meaningfully less
24 harmful than a Marlboro Reds cigarette, in some way.
0053
 1 Assume also that the hypothetical Marlboro Lights
2 cigarette is identicl to the Marlboro Lights, which Philip
3 Morris actually sold to the class members, in every
4 non-health respect, including taste and price.
5 Given a choice between the hypothetical Marlboro
6 Lights, and the Marlboro Lights which Philip Morris actually
7 sold to the class members, in the State of Illinois,
8 throughout the class period, do you have an opinion as to
9 which cigarette the class members would have bought?
10 MR. WAGNER: Objection, there is no foundation for
11 this witness to testify about class members. He has not
12 studied them, he has not conducted any survey of them. He
13 has not met a single one.
14 MR. TILLERY: I mean we have established a
15 foundation, there is no distinction.
16 THE COURT: Overruled.
17 A. Well, I think the situation you described is
18 answerable in the absence of any survey evidence whatsoever,
19 and let me tell you why.
20 All economists who subscribe to ration utility
21 theory, and I haven't met an economist who doesn't, would say
22 that you have got the same bundle of benefits, except that
23 you are adding a benefit for the Marlboro Lights that was, or
24 the cigarette that was safer.
0054
 1 Q. Or less harmful?
2 A. Or less harmful, right. It would be irrational
3 for any consumer, any smoker to choose the cigarette that had
4 fewer benefits. People don't go around, when given a choice
5 between N benefits and N plus one benefits, they don't go
6 around choosing the cigarette or product with N benefits. If
7 that happened, as I said earlier, you would have to throw out
8 micro-economic theory.
9 From the same standpoint, looking at the
10 multi-attribute model, the same thing is true. So all major
11 theories in psychology, marketing, consumer behavior, would
12 give the same answer. If you have the equivalent attributes,
13 and that was your hypothetical, equivalent attributes, but
14 there's an additional health reassurance or health benefit
15 attribute, the consumer has to choose the cigarette with the
16 additional attribute. It provides more benefit, more overall
17 utility.
18 Q. And the only difference that you said, the only
19 possible exception is somebody, some aberrant person that
20 might have some suicidal tendency, would be the only person
21 that would be outside --
22 A. Yes, and I don't think, to repeat, I don't think
23 the evidence of that, if the propositions that I have just
24 stated are not true, you would have to throw out economics,
0055
 1 psychology, marketing.
2 I mean, we have learned a lot about people's behavior
3 in the social sciences. We have very well established
4 theory, and the theories lead to an unequivocal prediction.
5 Q. I'm going to ask you the same question for
6 Cambridge Lights, bear with me.
7 A. Okay.
8 Q. But for this record, I am going to ask the
9 question.
10 Assume for purposes of this question that there was a
11 hypothetical Cambridge Lights cigarette that really did
12 deliver meaningfully less tar to all smokers than a regular
13 Cambridge Lights cigarette, or that is meaningfully less
14 harmful that a regular Cambridge in some way.
15 Assume also that the hypothetical Cambridge Lights
16 cigarette is identical to the Cambridge Lights, which were
17 actually sold to the class members, in every non-health
18 respect, including taste and price.
19 Given a choice between the hypothetical Cambridge
20 Lights and the Cambridge Lights, which Philip Morris actually
21 sold to class members throughout the class period, here in
22 Illinois, which cigarette do you believe the class members
23 would have bought?
24 MR. WAGNER: Same objection, Your Honor.
0056
 1 THE COURT: Overruled.
2 A. Well, you have asked me the same question, but
3 you put Cambridge Lights in. I would give the identical
4 answer.
5 No matter what brand you put in, the focus is not the
6 brand. It is the additional benefit. And so the answer has
7 to be the same answer.
8 MR. TILLERY: Dr. Cohen, based upon all your work in
9 consumer psychology over the last forty years, all of your
10 research into marketing and consumer perception, the review
11 of the entire collection of Philip Morris documents that you
12 have seen, the review of studies, and I'm going to reference
13 these qualitative studies by introducing them in a minute,
14 you have brought these.
15 A. I have seen the qualitative studies.
16 Q. Studies of Philip Morris, and your comprehensive
17 review of available survey research, do you have an opinion,
18 based upon a reasonable degree of certainty, as to whether
19 the implicit health reassurance representation in the term
20 lights and lowered tar and nicotine, was universally
21 understood by all smokers of Cambridge Lights and Marlboro
22 Lights cigarettes?

17 MR. TILLERY: Do you have an opinion?
18 A. Yes, sir.
19 Q. What is your opinion?
20 A. I don't want, my thought process was interrupted.
21 MR. TILLERY: Alright, let me go back and make sure
22 we are --
23 THE COURT: Let the Court Reporter read it.
24 MR. TILLERY: Well, it was broken up, I will re-ask
0058
 1 it.
2 I asked you, sir, if, based upon all of the works you
3 have done, and all your experience and your research, over
4 the last forty years, your understanding of consumer
5 perception, marketing, and also based upon your review of the
6 documents, the surveys, the Knowledge Networks study, the
7 internal qualitative studies of Philip Morris, and your
8 comprehensive review of all the other survey research as to
9 whether or not you had an opinion to a reasonable degree of
10 certainty as to whether the implicit health reassurance
11 representation in the term lights and lowered tar and
12 nicotine was universally understood by all smokers of
13 Cambridge Lights and Marlboro Lights cigarettes?
14 MR. WAGNER: Same objection.
15 THE COURT: Overruled.
16 A. Yes, I do.
17 MR. TILLERY: What is your opinion?
18 A. I think that light and low tar and lowered tar
19 are universally understood by all smokers. And that the
20 cigarettes that claim to be light, be lowered tar and
21 nicotine, would be perceived to be safer.
22 Q. In your opinion, again, based upon all of this
23 information that you have seen and relied upon, do you have
24 an opinion as to whether consumers valued the health aspect
0059
 1 of the light cigarettes as a positive attribute or a positive
2 force in at least some fashion in their consumer decisions?
3 MR. WAGNER: Same objection.
4 THE COURT: Overruled.
5 A. Yes, the only issue can go to weight. Health,
6 living longer, living healthier is a positive benefit,
7 universally. That does not need to be established yet
8 again. Even something called a biological imperative, you
9 can go back to biology, all species have, to some extent,
10 that kind of biological inherency. To live longer, to be
11 healthier is a fundamental trait of life.
12 And so people have that as a posit, they want that.
13 People desire that as an attribute. And so if that can be
14 linked to a cigarette product, it would lead to people being
15 more likely to purchase that product.
16 Q. Again, based upon all of your background,
17 training, education, expertise, documents you have reviewed
18 in this case and you have reportedly told us about, do you
19 have an opinion as to whether all consumers of Marlboro
20 Lights and Cambridge Lights value the health reassurance of
21 those terms in the context of their purchase decision as a
22 positive attribute?
23 MR. WAGNER: Same objection, Your Honor.
24 THE COURT: Overruled.
0060
 1 A. It would be a positive attribute for all people,
2 including all people in Illinois, I believe, including all
3 smokers in Illinois. It is a positive attribute, pure and
4 simple.
5 And hence, since it is positively valued, it would
6 increase the likelihood that people would behave in that
7 fashion and buy the cigarettes. The only issue goes to
8 weight. Whether it is a hundred percent, that is impossible
9 for a scientist to say. But in terms of the direction, it
10 is clear cut. The direction is positive. If you add a
11 positive attribute, you are increasing the likelihood that
12 people will choose that product or brand.
13 MR. TILLERY: Well, the next question follows up on
14 what you just said. Based upon everything, again, your
15 training, expertise, knowledge of internal documents in this
16 case, did the word lights and the term lowered tar and
17 nicotine, specifically for Marlboro Lights, contribute, in
18 your opinion, to a reasonable degree of certainty, to the
19 purchase decision for those cigarette brands?
20 MR. WAGNER: Same objection.
21 A. Yes, definitely.
22 THE COURT: Overruled.
23 A. Definitely.
24 MR. TILLERY: Explain that?
0061
 1 A. The only issue is weight. But the direction is
2 unmistakable. So if you have Marlboro and Marlboro Lights,
3 or if you have any, lets just take two, X and X prime. You
4 add a health benefit to one, in X prime, you are increasing
5 the attractiveness of that cigarette. You don't know by
6 exactly how much you are doing it, if someone is preoccupied
7 which health, it could be a hundred percent.
8 If someone is not that much concerned with health, it
9 is a much lower weight. But there should be no one on earth,
10 other than a suicidal person, who gives anything other than a
11 positive weight, to health. And so it should be universal
12 that people should prefer this attribute.
13 Q. Your Honor, I am all but concluded with my direct
14 examination of Dr. Cohen.
15 THE COURT: Well, if you want to take a break at this
16 time and look over some notes?
17 MR. TILLERY: The only thing, there are a couple of
18 documents that are being collected, are a collection of
19 internal studies. If we could have just a few minutes.
20 THE COURT: Alright, we will take a fifteen minute
21 break.
22 *****
23 (Brief recess was taken.)
24 *****
0062
 1 THE COURT: You may proceed.
2 MR. TILLERY: For the record, you have referenced the
3 qualitative studies, and I want to introduce those, offer
4 those at this time.
5 Group Exhibit #75, if you could take a look at these,
6 please, and I have already given the clerk a copy, Your
7 Honor.
8 MR. LOMBARDI: Your Honor, Mr. Tillery, may I ask, I
9 didn't get the number for the group exhibit.
10 MR. TILLERY: That is #74, this is #75. What is
11 Exhibit #75?
12 A. These are reports of qualitative research that I
13 referred to in my testimony, that explored with various
14 smokers, at various times, issues such as taste, issues
15 surrounding low tar cigarettes, and health issues surrounding
16 low tar cigarettes.
17 But they are a report of a number of qualitative
18 studies that dovetail the testimony that I provided.
19 Q. Were those the internal Philip Morris qualitative
20 studies that you relied upon when you answered my questions,
21 sir?
22 A. There are Philip Morris studies in here, and
23 without checking through each document meticulously, the ones
24 I have come to so far all say Philip Morris.
0063
 1 Q. There is another collection, Group #76?
2 A. Okay, perfect.
3 Q. Which is separated.
4 A. These are, there's a couple of studies that are
5 prepared for Philip Morris by Leo Burnett or by outside
6 vendors, but these are all related to Philip Morris as a
7 company.
8 Q. And just so the record is clear, Group Exhibit
9 #75 references those surveys done either by or for Philip
10 Morris that you lumped into the category of qualitative
11 studies that tell them what about consumer behavior?
12 A. Right, I wouldn't call them surveys --
13 Q. I'm sorry, studies. I misspoke.
14 A. I would call them qualitative studies that
15 examine people's thinking and motivations and understanding
16 with respect to Marlboro Lights, and issues such as low tar
17 and health.
18 Q. Alright.

6 MR. TILLERY: Exhibit, Group Exhibit #76, I have
7 given a copy to the clerk, Your Honor.
8 Could you take a look at these, I think these were
9 the --
10 A. Right.
11 Q. The qualitative studies that were sort of, I
12 guess we could call them non-Philip Morris qualitative
13 studies?
14 A. Right. These studies in this exhibit are
15 qualitative research of a similar time, conducted either by
16 or on behalf of other cigarette companies. And I bring them
17 in to show that there are more, there are general
18 understandings by firms selling cigarettes about such things
19 as the taste of low tar cigarettes. Many companies, not only
20 Philip Morris, explored whether people liked or disliked the
21 taste of low tar, and the meanings of these sorts of things.
22 So I have the first stack from Philip Morris and the
23 second other companies.

9 MR. TILLERY: One thing I did, I forgot to ask for
10 foundation is, were these, #75 and #76, documents that you
11 relied upon, looked at and considered in forming your
12 opinions in this case?
13 A. Yes, definitely.


13 ******
14 CROSS EXAMINATION
15 BY MR. WAGNER:
16 MR. WAGNER: Good afternoon, Dr. Cohen.
17 THE WITNESS: Good afternoon.
18 Q. My name is Jeff Wagner, we have met before, it's
19 nice to see you again.
20 Now, you said, if I understood it correctly, that if
21 Marlboro Lights were laid next to another cigarette, they
22 were the essentially identical in blend, taste, price, all
23 these other things, but one might be safer than the other,
24 the only rational choice that a consumer would make would be
0072
 1 to choose the one that is safer, going by the implication
2 safer, right?
3 MR. TILLERY: Excuse me, the word might, was that in
4 there?
5 MR. WAGNER: That was in your hypothetical, sir.
6 A. Well, if it was, fine, I will stand by that.
7 MR. WAGNER: It would be suicidally irrational for
8 anybody to make another choice, right?
9 A. Well, I will go along with the hypothetical.
10 Q. That is what you said, right?
11 A. I don't know those exact words, but it is close
12 enough, so I will go along with it.
13 Q. You understand that Marlboro still has full
14 flavor cigarettes on the market, don't you?
15 A. Yes, I do.
16 Q. They have pretty big market share, don't they?
17 A. Yes.
18 Q. They are the largest or the second largest
19 cigarette sold in the United States, right?
20 A. Yes.
21 Q. So is it your testimony that every purchaser of
22 Marlboro Reds cigarettes is suicidally irrational?
23 A. No.
24 Q. Why not?
0073
 1 A. My point is simply this: Take a Marlboro Red,
2 call it X --
3 Q. Right.
4 A. Take a Marlboro Reds, and right now in front of
5 us, put lowered tar on the package.
6 Q. Right.
7 A. A person would have to be foolish not to pick the
8 Marlboro Reds with lower tar. It is an additional benefit.
9 Q. Right.
10 A. That is the only point I want to make.
11 Q. Okay, I want you to assume there is testimony in
12 this case --

17 MR. WAGNER: You testified that while everybody
18 believes that they are in good health, different people
19 assign a different weight to the health. Is that what you
20 were trying to say?
21 A. What you just said, I didn't testify to. Maybe
22 you misstated your --
23 Q. Okay, I don't mean to misstate any of your
24 testimony. You said, I thought, I believe on direct
0075
 1 examination that everybody, any rational person, is going to
2 believe that good health is something, a positive attribute,
3 right?
4 A. Yes. That is a different statement.
5 Q. That is universal. But different people assign
6 the health attributes different weights, correct?
7 A. Correct.
8 Q. That is what I was trying to get at. And you
9 don't know what any individual class member, what weight any
10 individual class member assigned to the health attribute --
11 A. You are right.
12 Q. With respect to Marlboro Lights or Cambridge
13 Lights, do you?
14 A. You are absolutely right.
15 Q. Lets talk about your testimony in this case and
16 make sure that we understand exactly where it fits in with
17 the Plaintiff's chain of causation.
18 Now, I want to walk you through what I understand the
19 Plaintiff's chain of causation to be, and then we are going
20 to make sure where your testimony fits in.
21 The first part of the chain of causation of, for this
22 case, is that there are consumers who come to Illinois,
23 whether they live here or they are traveling or for whatever
24 reason, and they make a decision to purchase Marlboro Lights
0076
 1 or Cambridge Lights cigarettes, right? You understand that
2 that is part of the case the Plaintiffs are trying to put on
3 here?
4 A. Well, I am just going to accept your statement as
5 accurate.
6 Q. Well, if there were no purchases of Marlboro
7 Lights, then we would have no reason to be here.
8 A. Well, I'm not arguing with you.
9 THE COURT: No, your question had to do with people
10 coming through Illinois.
11 MR. WAGNER: Anybody in Illinois making a purchase,
12 just making a decision to purchase, making a decision to
13 purchase. You understand that is the beginning of the
14 causation chain, right?
15 A. I'm not sure I know what a causation chain is,
16 but I will work with you to try to answer your question.
17 Q. Very good. And the next step of the causation
18 chain is once people have decided to purchase, then they
19 smoke the cigarettes, and the Plaintiff's have told us that
20 people compensate, and they do so fully. Okay? You with me
21 on that? That they smoke the cigarette a certain way so that
22 the tar and nicotine level they get from a Marlboro Lights or
23 a Cambridge Lights is the same as they would get from a full
24 flavor?
0077
 1 A. I cannot proceed with your question, because I
2 have no idea what has been said about compensating fully. It
3 is beyond the area of my competence. I said nothing about
4 it in my direct, and I don't want to be led in an area that
5 I'm not an expert in.
6 Q. I apprecaite that, and that is why I am doing it
7 step by step, so we can understand exactly where your
8 testimony fits in, okay.
9 So the next step in the causation chain would be
10 injury, okay. We have somebody who decides to purchase, they
11 smoke the cigarette a certain way, and therefore they are
12 injured.
13 Will you accept, for the purpose of my questions,
14 that that is a causation chain that is being articulated in
15 this case? Will you just accept that for the purpose of my
16 question?
17 A. I don't think I understand it, but I will let you
18 proceed.
19 Q. Now, you are not here to discuss injury, are you?
20 A. I haven't talked about it.

6 MR. WAGNER: And whether or not light cigarettes are
7 safer, that is not your area of expertise either, is it?
8 A. It is not.
9 Q. Okay. And you are not an economist, so you are
10 not here to discuss --
11 A. That's correct.
12 Q. Economic interest?
13 A. That's right.
14 Q. Now, sometimes though, in your testimony, you
15 were straying a little bit, I think you discussed lights
16 marketing, and whether or not it might create an incentive
17 for consumers not to quit?
18 A. Yes.
19 Q. Do you recall talking about that?
20 A. Yes.
21 Q. So I want to talk to you about that for a minute,
22 and I want to talk to you about whether or not, is it your
23 opinion, or are you offering any testimony that lights
24 marketing causes people to start smoking, who otherwise
0079
 1 wouldn't start?
2 A. Yes.
3 Q. Okay, I didn't hear any of that in your direct
4 testimony, so --
5 A. I wasn't asked the question.
6 Q. Okay. Have you attempted to quantify the class
7 members who initiated their smoking with Marlboro Lights or
8 Cambridge Lights?
9 A. No, I said quantification was unnecessary in my
10 testimony.
11 Q. And you haven't done it, right?
12 A. Right, it is unnecessary.
13 Q. And you have not quantified the number of class
14 members who started smoking because of Philip Morris for
15 advertising for Marlboro Lights or Cambridge Lights, have
16 you?
17 A. No.
18 Q. And you have not quantified the number of class
19 members who wouldn't have initiated smoking at all, but for
20 Philip Morris marketing Marlboro Lights and Cambridge Lights,
21 have you?
22 A. I have not done that either.
23 Q. And you have not attempted to quantify the
24 numbers of class members who switched to Marlboro Lights or
0080
 1 Cambridge Lights, rather than quit, have you?
2 A. No, I haven't.
3 Q. Okay. And you have not attempted to identify or
4 quantify the class members who would have quit smoking but
5 for the lights or the lowered tar and nicotine descriptors,
6 have you?
7 A. I haven't done it, and I'm not sure how you would
8 do it.
9 Q. Okay, you just testified that you think all
10 people might be more prone to believing that these cigarettes
11 might be safer, right?
12 A. No, I have gone beyond that.
13 Q. Okay. You testified, I believe, on direct, that
14 you believe every single consumer of Marlboro Lights or
15 Cambridge Lights cigarettes would believe that there is a
16 health or safety attribute, correct?
17 A. Yes, because it is on the package.
18 Q. Okay. And you have done no study of the class on
19 this point, have you?
20 A. No. It is on the package. I would assume that
21 anyone who reads the package understands that.
22 Q. That is an assumption of yours, you have not done
23 any study, survey, or examination of the class, have you?
24 A. No, I haven't.
0081
 1 Q. Okay. In fact, you never did any study of any
2 group on this point, have you?
3 A. I haven't done any quantitative study on that
4 point.
5 Q. Okay. Have you attempted to, you have not, I
6 think you will also agree with me, attempted to quantify the
7 class members, either as percentage or group or some other
8 way, who have would have continued to smoke Marlboro Lights
9 or Cambridge Lights cigarettes, but for the use of the
10 descriptors, lights or lower tar, have you?
11 A. I have done no quantitative research at all,
12 which may cut off a lot of questions, any question you ask me
13 about doing quantitative research, the answer will be, I have
14 not done it.
15 Q. Okay. Now, in your direct testimony, you were
16 talking about Philip Morris inserting Marlboro Lights and
17 Cambridge Lights into the information environment, right?
18 That already existed?
19 A. Okay.
20 Q. And you said this was, that Philip Morris
21 understood that health concerns were already out in the
22 marketplace, but that Philip Morris was injecting these
23 cigarettes into a marketplace where people already had health
24 concerns, right?
0082
 1 A. Yes.
2 Q. And that this might be a continuation of the
3 marketing of health reassurance, I believe you were trying to
4 tie it to a marketing of health reassurance?
5 A. Part and parcel of health reassurance, yes.
6 Q. Okay, now, in all of your reliance materials, and
7 you put in lots of documents here, and all of the documents
8 you testified to on direct, did you identify a single
9 document stating that Philip Morris's goal was to increase
10 the overall demand for cigarettes by lights marketing?
11 A. I haven't introduced any document that says that.
12 Q. Okay. And in all of your reliance materials, and
13 all of the documents you testified to on direct, did you
14 identify a single document that said Philip Morris marketing
15 lights was intended to continue a marketing of health
16 reassurance that followed the health scares of the 1950's?
17 A. Are you asking me whether a document had that
18 wording?
19 Q. That's exactly what I am asking.
20 A. No document that I saw had that wording.
21 Q. Okay. And you reference a number of documents
22 regarding, or you referenced in your testimony an intent to
23 deter people from quitting, but the documents that you
24 identified with respect to quitting weren't Philip Morris
0083
 1 documents, were they?
2 A. I believe you are correct.
3 Q. Okay. Those were all documents from other
4 companies, Brown and Williamson, R.J. Reynolds, correct?
5 A. I believe you are correct.
6 Q. Okay. And you have no evidence to indicate that
7 any of those documents were authored by Philip Morris, do
8 you?
9 A. I don't.
10 Q. And you have no evidence to indicate that any of
11 those documents were shared with Philip Morris, do you?
12 A. I don't.
13 Q. And you are not aware of a single document, are
14 you, from Philip Morris's files, that says Philip Morris
15 wants to deter people from quitting smoking?
16 A. No, I am not. I have been answering very
17 quickly, so you can ask a lot questions, but realistically, I
18 wouldn't expect a cigarette company to say those things,
19 because if those documents were later discovered, the
20 cigarette people would look terrible for having said that.
21 So the fact that those words don't appear in documents, is
22 not surprising to me.
23 Q. But you have not seen any such documents?
24 A. No, I haven't. I didn't expect to.
0084
 1 Q. But in your direct testimony this morning, you
2 referred to a document, I believe it was Plaintiff's Exhibit,
3 I'm not even sure which one it was, the exit-brand of
4 cigarettes, the study of ex-smokers? I believe it is
5 Plaintiffs #32, do you have that in front of you?
6 A. It might take me just a bit to find it, because I
7 don't have them by number.
8 Q. Okay.
9 A. So if you have it, hand me --
10 Q. I can give you my copy. That is the, this is a
11 document that you referred to, a March, 1978, Special Report,
12 F.J. Ryan, titled Exit-Brand Cigarettes, A Study of
13 Ex-Smokers. And I believe you testified that this document
14 demonstrated some knowledge by Philip Morris of the conflict
15 between a desire to quit, and maybe a desire to continue to
16 do what people are enjoying, so it may be intercepting some
17 people, right?
18 A. Well, the record will reveal what I said. If you
19 would draw me to the particular page I was talking about, I
20 can't remember every single thing I said.
21 Q. Okay, you were talking about dissonance this
22 morning --
23 A. Yes.
24 Q. Do you remember that?
0085
 1 A. Sure.
2 Q. Do you remember characterizing this document as
3 one that Philip Morris was understanding the dissonance and
4 was marketing in order to convince smokers or to give smokers
5 something so that they would reduce their dissonance and keep
6 smoking, correct?
7 A. I may have said that, this sounds consistent with
8 my testimony.
9 Q. There is nothing in the document that actually
10 says that though, is there?
11 A. Well, I'm going to have to now take a little bit
12 of time and go through it.
13 Q. Okay.
14 (Short pause in proceedings.)
15 A. Now, is your question whether the term dissonance
16 appears in this document? I wasn't sure --
17 Q. Sure.
18 A. I don't think the word dissonance appears in it,
19 but it illustrates the point I was making at the time.
20 Q. Okay. In your supplemental expert report issued
21 in this case, and I have got the first page of that up on the
22 screen, you cited this document for the proposition that
23 cigarette companies capitalize on these consumer's health
24 concerns by marketing product likely to be perceived as lower
0086
 1 risk or even substitutes for quitting. There is no statement
2 in this document that refers to light cigarettes as being a
3 substitute for quitting, is there?
4 I'm sorry, you want me to put that back up?
5 A. On page four of what the document says, it has
6 got a CKT number that ends in eight-nine --
7 Q. Uh-huh.
8 A. It says the very fact then that a smoker has
9 decided to switch from a full flavor cigarette to a low
10 delivery cigarette, tells us something very important about
11 him. He is concerned about his health and he is willing to
12 do something about it.
13 Q. Right.
14 A. Okay.
15 Q. Those words don't say substitute for quitting, do
16 they?
17 A. Well, I am on page four, I just wanted to point
18 out things that I was --

8 MR. WAGNER: And now I will tell you what, Dr. Cohen,
9 why don't we take a rigorous look at this document -- You are
10 a scientific expert, right?
11 A. Well, I don't know what you mean by scientific
12 expert.

19 MR. WAGNER: It has nothing to do with disagreement.
20 I want to make sure that as an expert you are being very fair
21 with the documents, so that the Court has complete
22 understanding, right?
23 A. I am taking my time so I do not mislead or
24 misrepresent my testimony, of course.
0088
 1 Q. Lets take a look at what this document says then
2 about actually quits, lets take a look at page one of the
3 document, states a summary, the very first sentence, right?
4 A. Okay.
5 Q. You see that, Mr. Ryan says, this survey of
6 people who have quit smoking found that the proportion of
7 quitters leaving the market via low delivery cigarettes is
8 1.4 times as large as the market share of those brands would
9 suggest, right?
10 A. That is what it says.
11 Q. Okay. And then if we look a little further into
12 the document. The methodology of what is going on, why
13 don't you flip ahead to page five?
14 A. Okay.
15 Q. Okay. And Mr. Ryan is discussing what he did.
16 And there is an explanation of his methodology. And he
17 explains how he is going to define a quit ratio.
18 The ratio between two percentages, the brand's
19 percentages of the identified quitters would be divided by
20 the brand's market share. And high ratios would be more
21 quitters than expected from market share, low ratios mean
22 fewer quitters than expected from market share, correct?
23 A. That's what it says.
24 Q. And he has some data in here that is very
0089
 1 specific to Marlboro Lights, doesn't he?
2 A. Yes, he does.
3 Q. Okay, if you look at the next page, at Table One,
4 I'm sorry, yes, Table One, on page six, Marlboro Lights,
5 right? And he is saying that the quit ratio for Marlboro
6 Lights is actually 1.9 times the size of its market share,
7 right?
8 A. That's right.
9 Q. Okay. And if we go ahead to the next page, on
10 page seven, for the low tar category as a whole, he says we
11 concede that the low delivery, non-menthol brands in general,
12 were about 1.42 times as likely to be represented in the
13 quitter column as the sales market shares would suggest,
14 correct?
15 A. That is what it says.
16 Q. Okay, now, if this is the information that is
17 known to Philip Morris at this time, that putting out low tar
18 and light cigarettes is going to result in greater than
19 market share quits, isn't that exactly the opposite of the
20 economic incentive you were talking about this morning?
21 A. No, I don't see how it would say that.
22 Q. Well, doesn't it show that Philip Morris, in
23 putting out lights and low tar cigarettes, more of those
24 people were quitting than from the high tar brands?
0090
 1 A. Well, number one, I never testified about
2 quitting from Marlboro Lights, so you are well beyond
3 anything I said in direct. I never talked about Marlboro
4 Lights smokers quitting, in none of my testimony today did I
5 even remotely talk about that. So you are asking me a
6 different question than anything I testified to.
7 THE COURT: Well, lets, he may be trying to develop a
8 line here.
9 A. Okay.
10 THE COURT: And so, you can ask, you can answer his
11 question. If you didn't, don't know, or whatever, so be it.
12 A. Alright, let me, but I didn't want to leave the
13 impression that somehow I talked about this this morning.
14 THE COURT: You did not talk about it, the Court
15 would note that.
16 A. Alright.
17 THE COURT: But if you can, answer his question.
18 A. Could you read it again, please?
19 MR. WAGNER: Let me make sure I understand what you
20 just told me, if I could. You did talk this morning about
21 whether or not people have cognitive dissonance, correct?
22 A. Absolutely.
23 Q. And you said the dissonance is that people
24 understand smoking is unhealthy, so that would suggest that
0091
 1 they would want to quit, but on the other hand, they are
2 being given a message that might cut into that dissonance and
3 give them some reason to stay, is that correct?
4 A. Correct.
5 Q. Now, are you saying that none of that testimony
6 applies to Marlboro Lights?
7 A. No, that is not what I'm saying. I'm saying I
8 did not discuss this morning whether people would quit
9 smoking Marlboro Lights. I never, I never discussed that.
10 Q. Okay, my question remains, though, you looked at
11 this document and discussed this document in connection with
12 your explanation of dissonance, right?
13 A. Yes.
14 Q. Okay. And my question to you is, based upon the
15 data that actually exists, now, Philip Morris's intent was,
16 what I want to know is, doesn't this document demonstrate
17 that Philip Morris had evidence that it would be contrary to
18 their economic well-being if more people are in fact quitting
19 from the lights category, including Marlboro Lights, than
20 from the full flavored categories?
21 A. I don't understand that question, I'm sorry.
22 Q. Okay. You don't have any basis to dispute the
23 data that's in Mr. Ryan's document, do you?
24 A. I don't dispute the data, but you are overlooking
0092
 1 something very important, and that is there are not only
2 differences in cigarettes, there are differences in people.
3 So the people who quit Marlboro Lights, which I didn't talk
4 about today, but those people may be different people --
5 Q. Right.
6 A. Than the people who don't quit Marlboro Lights.
7 Q. Everybody has their own individual reasons,
8 right?
9 A. I didn't say that, I just said they may be
10 different people. You can't use, you can't say that the
11 cause has anything to do with Marlboro Lights marketed, you
12 cannot logically contribute people's behavior in quitting
13 Marlboro Lights, Marlboro Lights marketing. It may have
14 been, for some people, they hated the taste so much and were
15 weaned off cigarettes.
16 Q. Okay, doctor, we are going to talk about cause in
17 just a few minutes.
18 Compensation and whether or not they compensate fully
19 when they smoke the cigarettes, you are not here to discuss
20 that, right?
21 A. I'm not.
22 THE COURT: I think he testified to that previously.
23 MR. WAGNER: You haven't conducted any survey of
24 class members in order to determine what they expected from
0093
 1 the tar delivery of Marlboro full flavored, have you?
2 A. I haven't conducted any quantitative studies, at
3 all.
4 Q. Okay, but if it's okay, I just want to make sure
5 that our record is completely clear, okay?
6 You haven't conducted any studies of class members in
7 order to determine what tar and nicotine they expected from
8 Cambridge full flavored cigarettes, have you?
9 A. That's correct.
10 Q. And you haven't conducted any study of class
11 members in order to determine what they expected in terms of
12 tar and nicotine levels with respect to Marlboro Lights or
13 Cambridge Lights, have you?
14 A. That's correct.
15 Q. And you haven't conducted any study of class
16 members in order to determine what tar and nicotine levels
17 they actually received, either when smoking Marlboro or
18 Cambridge full or Marlboro Lights or Cambridge Lights, have
19 you?
20 A. That's correct.
21 Q. Okay. What we are here to talk about is the
22 decision to purchase, right? That is what your testimony
23 related to this morning and this afternoon?
24 A. Well, I don't think it is appropriate to take all
0094
 1 my testimony and try to put it in that box. So I didn't
2 answer your question, I don't think you believe that. I
3 talked about surveys, I talked about a number of things, not
4 just that. But if you want to ask me about that, that's
5 fine.
6 Q. Right, you talked about surveys and you talked
7 about quality of research and you talked about psychology,
8 all of which would lead to someone's decision to purchase
9 Marlboro Lights or Cambridge Lights cigarettes, right?
10 A. Well, it is relevant to their decision to
11 purchase Marlboro Lights.
12 Q. Okay. Let's talk about, let's see if we can
13 break it down, because whether someone decides to buy and
14 smoke Marlboro Lights or Cambridge Lights cigarettes,
15 actually has a lot of levels, and I think you will agree with
16 me.
17 First somebody has to decide that they want to smoke,
18 right?
19 A. Okay.
20 Q. And then once they decide that they want to
21 smoke, they have got a choice they are going to make, because
22 I think you called it categories, full flavored, low tar,
23 might even be an ultra low tar, okay?
24 A. Okay. It is a little bit more complicated than
0095
 1 that.
2 Q. You can stay with me on that?
3 A. With the proviso that, I can tell you why it is
4 more complicated, but lets go ahead, lets go ahead with
5 that.
6 Q. And then once they are within a category, think
7 you testified that there are brand choices within the
8 category, right?
9 A. Right.
10 Q. Okay. I want to talk about each of those levels
11 and find out what is going on with them.
12 And the first thing I want to talk about is smoking,
13 why do people make that choice, okay?
14 Now, will you agree with me that people choose to
15 smoke for a variety of different reasons?
16 A. Yes.
17 Q. Okay. And will you agree with me that the issue
18 of what influences people to smoke has been studied
19 extensively?
20 A. Yes.
21 Q. And will you agree with me that these studies
22 identify a number of different factors that cause people to
23 smoke?
24 A. Yes.
0096
 1 Q. And you are familiar, I think you said, with
2 almost every survey that has been done on the issue, you have
3 an extensive review in 1989, and you updated it, is that
4 correct?
5 A. Right.
6 Q. And you are familiar with various Roper and
7 Gallop polls, aren't you?
8 A. Yes.
9 Q. Let's see if we can identify some of the reasons
10 why people might make the choice to smoke.
11 You would agree with me, would you not, that some
12 people decide to smoke because of peer pressure?
13 A. Yes. I might redefine that as social acceptance,
14 but, so if you say peer pressure and social acceptance.
15 Q. Sure, lets add it in. Social acceptance, that is
16 a reason people might choose to smoke, right?
17 A. Correct.
18 Q. Desire to be grown up?
19 A. Correct.
20 Q. Family influence? Whether your parents, brothers
21 and sisters smoke?
22 A. Fine.
23 Q. How about rebelling?
24 A. Fine.
0097
 1 Q. Desire to be independent?
2 A. I will agree to virtually anything you put up
3 there.
4 Q. Well, don't give me too much license.
5 A. Let me explain --
6 Q. You and I get along.
7 A. If you don't mind, I can help you out.
8 Q. No, no.
9 THE COURT: No, no, he is --
10 A. Okay.
11 Q. Thank you, Your Honor, I appreciate that. How
12 about a desire for prestige?
13 A. Fine.
14 Q. Curiosity?
15 A. Fine. You will run out of paper before I run out
16 of fines.
17 Q. How about advertising?
18 A. Fine.
19 Q. Are you sure about that?
20 A. Fine.
21 Q. Well, you have seen polls and data on this,
22 right?
23 A. I have.
24 Q. And you are familiar with, for example, Roper and
0098
 1 Gallop trying to check and see whether or not advertising
2 caused people to smoke?
3 A. It is a hard thing to study for surveys, so I
4 would say fine.
5 Q. Are you familiar, will you agree with me that
6 when advertisers study, the link is somewhere between zero to
7 to two percent to why people smoke?
8 A. I would agree as to what you say about the
9 number, but I will not agree that that number is a valid
10 number.
11 Q. Okay. Now, you will agree with me, will you
12 not, that different class members were subject to different
13 influences, right? They could have been subject to one or
14 more of these?
15 A. Well, you know how I think, it is a
16 multi-attribute model, all of these are attributes, and they
17 all can have either positive or negative signs. And the only
18 difference from person to person is the weight attached to
19 each of these. And so that has to be added in.
20 So I am agreeing with you, but I am stating it more
21 generally.
22 Q. Okay. And will you agree with me then that
23 because people, different people have different weights that
24 they are assigning to different attributes, that different
0099
 1 members had different reactions to all of these influences?
2 A. Yes.
3 Q. And will you agree with me that you did not
4 attempt, when looking at this, to disaggregate between these
5 different influences in order to determine why class members
6 smoke?
7 A. I didn't need to. I didn't do it and I did not
8 need to.
9 Q. Now, there was a lot of testimony this morning
10 about some historical documents, and there was all sorts of
11 testimony regarding doubt and confusion and a campaign of
12 disinformation. Do you remember taking the time and going
13 through that with you?
14 Now, do you have any idea if Michael Fruith saw
15 Frank's statements?
16 A. Who is Michael Fruith?
17 Q. That is my point. Do you have any idea whether
18 Sharon Price saw the Frank's statement, or any of the Tobacco
19 Institute statements that you referenced this morning?
20 A. Not sitting here now, I don't.
21 Q. Do you have any information or any evidence that
22 any class representative saw, heard or believed any of the
23 Tobacco Institute statements, or the other statements from
24 the disinformation campaign, from the 1950's and 1960's that
0100
 1 you put up and asked the Court to consider during your direct
2 testimony?
3 A. No, that is not how I was presenting that
4 exhibit. I was presenting that exhibit to indicate what the
5 information environment was like. Not, I was not attempting
6 to say that any single person had seen all of them, some of
7 them. I was describing the information environment that
8 people living in our society would have been exposed to.
9 Q. Right, so you can't testify that any of the class
10 members actually saw, heard or believed any of that
11 information, correct?
12 A. Logically I can't.
13 Q. And you are aware though, are you not, that every
14 single class member has testified that they saw and read and
15 believed the Surgeon General warnings, are you aware of that?
16 A. No.
17 Q. I see, that is because you didn't feel it was
18 important for your opinions to study class members, right?
19 A. Well, I think that is a non sequitur. You are
20 asking whether I was aware of a specific fact, and I said no.
21 Q. Right.
22 A. And then you went on to characterize my
23 assumption, my whole approach, and I think it is a non
24 sequitur.
0101
 1 Q. You didn't focus specifically on class members in
2 this case because you didn't feel like you needed to, right?
3 A. That is true.
4 Q. Are you aware of whether there is any single
5 class representative or class member who has been presented
6 for testimony in this case, who didn't believe that smoking
7 was dangerous?
8 A. I'm not in a position to characterize the beliefs
9 of the class members on that issue with any degree of
10 scientific certainty.
11 Q. Are you aware of whether or not any class
12 representative testified that they were confused regarding
13 the relationship between smoking and health?
14 A. I haven't read the testimony of class members.
15 Q. Okay, so is the answer no?
16 A. Well, I haven't read the testimony, so, no, I did
17 talk to a number of class members, a few of them in-depth,
18 but, in answering your question --
19 Q. Do you even know how many people in the class
20 were alive at the time of the Frank's statement?
21 A. I haven't done a study to examine that.
22 Q. Do you know how many were smokers at that time?
23 A. No.
24 Q. Do you know how many class members made a
0102
 1 purchase decision, either at the time of any of this
2 disinformation, or afterwards, because they were confused
3 about the relationship between smoking and health?
4 MR. TILLERY: I am just asking for clarification, is
5 he looking for a specific number of class members? I mean,
6 the question is ambiguous and confusing.
7 A. I didn't understand the question.
8 THE COURT: Well, ask it again.
9 MR. WAGNER: Then I will see if I can clarify it for
10 you.
11 Are you in a position to tell us whether or not any
12 class members made a purchase decision, either at the time of
13 the disinformation statements that you identified, or
14 afterwards, because they were somehow confused about the
15 relationship between smoking and health?
16 A. No.
17 Q. Alright. Are you aware of any class member who
18 heard of the smoking beagles?
19 A. No.
20 Q. You are aware, by the way, aren't you doctor,
21 that that study was in the end discredited because the
22 beagles that were the subject of that study were sick when
23 they were imported for the study?
24 A. Oh, I am aware of a re-analysis of those data,
0103
 1 which concluded, roughly, that had the study gone on to
2 conclusion, as many as twenty dogs would have died with
3 symptoms of carcinoma, which of course was a complete
4 opposite statement than the tobacco industry, Tobacco
5 Institute put out in its press release.
6 Q. You said, I think, the tobacco companies had
7 taken great pains to insult the Surgeon General with the
8 court's, right? Do you remember having that demonstrative
9 up?
10 A. That's correct.
11 Q. That was a speech that was given to an
12 association of tobacco distributors in Oklahoma, wasn't it?
13 A. It was given in Oklahoma.
14 Q. Uh-huh, now, you also made reference in this
15 disinformation campaign, to a 1990 Philip Morris
16 International Spokesperson's Guide.
17 Do you remember talking about that?
18 A. Yes.
19 Q. It was Plaintiff's #68?
20 A. Right.
21 Q. Now, I believe what you referred to, you refer to
22 a few quotes from there, but you were talking about whether
23 or not people were being instructed to give certain responses
24 regarding statistical evidence against smoking, right? You
0104
 1 were just talking about that subject?
2 A. I was talking about a number of things, I'm not
3 sure I focused on the statistical evidence claim. My
4 testimony was, I think, about some other things in there, but
5 in general I am in agreement.
6 MR. TILLERY: I don't think that was --
7 MR. WAGNER: Is this one of the things you were
8 referring to, that statistical studies have failed to take
9 into account numerous other variables that have been
10 associated with disease, in addition to smoking, such as
11 lifestyle, genetics, inherited traits, occupation, and
12 environmental exposure and psychological variables?
13 A. I do not believe I identified this statement in
14 court today, but I am happy to discuss this statement with
15 you, if you want.
16 Q. Okay, I thought you had referred to that. It is
17 your testimony that you didn't?
18 A. I don't recall.
19 THE COURT: The Court would note that he did not.
20 MR. WAGNER: Okay. Do you have any evidence, Dr.
21 Cohen, that Philip Morris spokespeople made any of these
22 statements referenced in here as potential responses?
23 A. Do I have any evidence that, having been
24 instructed to make these statements, that anyone actually
0105
 1 made a statement?
2 Q. No, do you have any evidence that anyone made any
3 of the responses that are referenced in that document? That
4 anyone said them out loud, to anybody?
5 A. Well, no. How could I know that, other than
6 being there? A fly on the wall? But if everyone associated
7 at Philip Morris is instructed to give these responses, I
8 have to assume that Philip Morris is not going to put out a
9 booklet this thick and have the intention that nobody would
10 say anything.
11 Q. Let me ask you the question this way. Are you
12 aware of anybody connected with Philip Morris making the
13 statements you referenced in this document? To anyone?
14 Anyone in Illinois?
15 A. No.
16 Q. Do you have any evidence that anyone associated
17 with Philip Morris made the statements referenced in this
18 document to any class member?
19 A. No.
20 Q. You also reference a Tobacco Institute document
21 from Fred Panzer to Horace Korenegay, which I believe is
22 Plaintiff's Exhibit #65. Do you recall that?
23 A. Yes.
24 Q. Now, that is the Tobacco Institute, right?
0106
 1 A. Yes.
2 Q. You don't know, as you sit here, whether or not
3 Philip Morris had any input into this memo, do you?
4 A. No, I don't.
5 Q. Okay. And you don't know whether Philip Morris
6 took any action in response to this document, do you?
7 A. No, I don't.
8 Q. Okay.
9 A. If you are asking me can I connect the dots,
10 causal link between that memo and action by Philip Morris, I
11 have no way to draw a causal link from that one document to
12 anything Philip Morris did.
13 Q. Okay. Here's a statement that is also in the
14 document, that I am not sure you referenced here. Let's just
15 make sure we are talking about the same document. This is
16 the one that you were referring to during your direct
17 testimony?
18 A. Looks that way. Go down a little bit further on
19 the page, yes.
20 Q. Okay.
21 Q. Now, there is a statement in here about what
22 exactly is happening on the public opinion front, right?
23 A. Yes.
24 Q. And doesn't the document say that on the public
0107
 1 opinion front, however, our situation has deteriorated and
2 will continue to worsen. This erosion will have an adverse
3 affect on the other fronts because here is where the beliefs,
4 attitudes and actions of judges, juries, elected officials
5 and government employees are formed.
6 Is that statement also made in that document?
7 A. Yes, and I believe it is a call for renewed vigor
8 on the part of the Tobacco Institute to make sure this
9 doesn't happen. And if you read that statement in
10 connection with what is said on the front, if you want to go
11 back to that, because that is what I testified about.
12 On the first page of that document, I think the real
13 message comes through.
14 Q. But you don't know, as you sit here, whether or
15 not Philip Morris took any action with that document, is that
16 what you said?
17 A. Yes.
18 Q. I think you also referenced a document that was
19 Plaintiffs Exhibit #70, from Mace to DuPuis, from 1958. Do
20 you recall that?
21 A. Yes.
22 Q. Now, this document, I believe you focused on the
23 second page?
24 A. Yes.
0108
 1 Q. Sounds like a wild program, but I'll bet the
2 first company to produce a cigarette claiming a substantial
3 reduction, say fifty percent less than the present Parliament
4 and Kent, in tars and nicotine, or an ersatz cigarette whose
5 smoke contains no tobacco tars, and with good smoking flavor,
6 will take the market.
7 That is what you testified about this morning,
8 right?
9 A. Yes, and the rest of that paragraph, right.
10 Q. And the rest of that paragraph.
11 A. Uh-huh.
12 Q. Now, lets talk about what the document is
13 actually saying. The documents begin a little bit
14 differently, right? The first paragraph of the document
15 there, Mr. Mace -- By the way, who is Mr. Mace?
16 A. Sitting here today, I'm not sure. I shouldn't
17 say because I would be speculating, I'm not sure.
18 Q. Okay, you don't know how high up he was in the
19 company?
20 A. No.
21 Q. You don't know whether this memo had any affect
22 on anything that Philip Morris actually did with respect to
23 any cigarette, much less Marlboro Lights or Cambridge Lights?
24 A. Once again, I can't connect this document, I
0109
 1 wasn't at Philip Morris, I can't connect this document to any
2 action by a Philip Morris employee.
3 Q. Okay. Let's see what Mr. Mace has to say. In as
4 much as the evidence, and I will skip the parenthetical, is
5 building up that heavy cigarette smoking contributes to lung
6 cancer, either alone or in association with physical and
7 physiological factors such as air pollution, predisposition,
8 nervous tension, rate of living, etc., I believe we should
9 increase the departmental effort both in terms of short range
10 and long range objectives towards the development of a low
11 delivery cigarette having good flavor.
12 Do you see that?
13 A. Yes, I do.
14 Q. My question to you is, is there anything
15 inherently wrong with that statement?
16 A. No, I only wish they had done it.
17 Q. Okay.
18 A. Let me explain why I just said that. Here we
19 are, 1958, and this states an intention to increase effort
20 toward the involvement of a low, an actual low delivery, not
21 an ersatz cigarette, not an illusion cigarette, but a true
22 low delivery cigarette.
23 And it is my testimony that Philip Morris, instead of
24 doing that, was content with the illusion of filtration,
0110
 1 rather than involvement of low tar.
2 Q. I understand, we will come to illusion. But I
3 want to just understand this document and what the
4 motivations are for the conclusions that you testified to.
5 Now, the second paragraph --
6 A. I don't agree with that characterization. You
7 said the motivations are not the conclusions --
8 Q. No, I said I want to focus on this document, and
9 focus on why it is the conclusions were stated on page two of
10 this document, okay, just the conclusions of the author of
11 this document.
12 So lets make sure we understand exactly what is said
13 in this document, okay?
14 A. Fine.
15 Q. The second paragraph then has short and long
16 range objectives, correct?
17 A. Yes.
18 Q. Okay. And says, for the short range, lets
19 concentrate on means to produce a substantial reduction in
20 tar delivery, even if it is only across the board, since the
21 chance is good that any specific irritant and/or carcinogen,
22 if present, would be reduced also.
23 There is nothing wrong with that, is there?
24 A. It is a great idea.
0111
 1 Q. Okay. Then he said, for the long range, lets
2 study means for identifying carcinogenic substances as well
3 as all substances in cigarette smoke that are irritating or
4 are known to produce undesirable physiological effects, and
5 find means of removing them.
6 That's a good idea, too, isn't it?
7 A. Bravo! I absolutely agree.
8 Q. Okay. And for the short range, lets increase the
9 effort of a development of a better filter, giving slightly
10 less priority to ventilation, tobacco catalysts and tobacco
11 extraction.
12 Do you see that?
13 A. Yes. Less priority to ventilation, so instead of
14 having, instead of achieving lightness through ventilation,
15 isn't he saying actually have a better filter? That actually
16 gets rid of the harmful stuff? Rather than a cigarette that
17 works by ventilation, rather than getting rid of harmful --
18 Q. Well said, Dr. Cohen.
19 So what Mr. Mace is talking about in this program is
20 an actual reduction, and when he says, I bet that this would
21 be a wild program, but if we can get rid of fifty percent,
22 then that would be a good thing, right? And there is nothing
23 wrong with that as a corporate goal, is there?
24 A. I agree. But then he goes on to say some other
0112
 1 things, but you stopped short.
2 Q. I understand.
3 A. And the other things are pivotal, because that is
4 how he closes out the memo.
5 Q. Okay, Dr. Cohen, Your Honor, I'm sorry, there is
6 no question pending as far as I know.
7 A. Well, you are asking about the conclusion --
8 Q. Right. And my question --
9 A. And the conclusions he reached are further on.
10 Q. My question to you was, aren't all of those
11 objective, proper objectives and proper things for a
12 corporation to be doing?
13 A. Yes. But he doesn't conclude with that. That
14 isn't his conclusion.
15 Q. Now, we talked about why people make the choice
16 to smoke, and I want to make the next step about why people
17 might choose lights, why people might make that choice.
18 Now, I believe you were talking about, in your direct
19 testimony, that people might choose lights because they think
20 that there is a health attribute, right?
21 A. Oh, definitely. That is what the research points
22 to.
23 Q. That would apply to people who are switching, who
24 have been smoking full flavor, and then they might want to
0113
 1 switch down to another brand? Is that what you are referring
2 to?
3 A. Apply to everybody.
4 Q. Well, if you have somebody who is smoking, they
5 are the ones who are fighting this cognitive dissonance,
6 right?
7 A. No, you also could have people just starting to
8 smoke, who understand that smoking is harmful -- And lets say
9 a fourteen year old girl, who wants to fit in desperately,
10 so, you put up social acceptance before, right?
11 Q. Right.
12 A. So you take this person, a fourteen year old
13 girl, anxious about fitting in, social acceptance.
14 Q. Uh-huh.
15 A. Now, she is not going to disinterested in health,
16 because health is a fundamental attribute for all people. So
17 what she would like to have is her cake and eat it, too. She
18 would like to have a cigarette that has social acceptance,
19 and Marlboro Light has the Marlboro cachet, but she would
20 also like to have health reassurance. So she would like to
21 have the two benefits, rather than the one.
22 Q. Okay, I appreciate that, now I understand the
23 theory of where you are going.
24 You have done no study of the class members in order
0114
 1 to determine whether or not there are any class members who
2 fit the description you just described, right?
3 A. I have done no quantitative studies of class
4 members.
5 Q. One reason why people might make the choice to
6 choose lights is health, that is what you have testified to,
7 right?
8 A. Yes.
9 Q. Okay, do you agree with me that consumers smoke
10 lights for a variety of reasons other than health, as well?
11 A. Not other than, in an addition to. These are
12 attributes, they are all connected to lights, and in terms of
13 a bundle of benefits, it is not either/or. They are each
14 connected, and they have different weights, depending on the
15 person.
16 Q. And each person has his own weights?
17 A. That's correct.
18 Q. Okay, lets just see if we can get some of the
19 other attributes out, so that we understand, okay?
20 Will you agree with me that taste is an attribute?
21 A. Yes.
22 Q. Okay. Now, lets spend a few minutes talking
23 about taste, because I think that you were testifying, and,
24 in your direct testimony, that taste was an obstacle to
0115
 1 people actually switching to lights, right?
2 A. Yes, for most people it would be an obstacle.
3 Q. And you talked about the Listerine affect, I
4 believe, right?
5 A. I did.
6 Q. In your direct testimony?
7 A. I did.
8 Q. Now, you have looked at a lot of surveys, you
9 testified about that, right?
10 A. Yes.
11 Q. And isn't it true that a predominant theme in
12 those surveys is that people choose taste for lights?
13 A. Did you say choose taste for lights?
14 Q. Choose lights for taste. If I misspoke, I
15 apologize.
16 THE COURT: Choose lights for taste?
17 A. In surveys?
18 Q. In surveys?
19 A. Well, when asked a question, why are you smoking
20 your current brand, they might say taste. And I explained
21 why, in detail, earlier.
22 Q. I understand. Here is my question to you, is
23 whether or not it is a predominant theme in surveys that
24 people choose lights for taste. Do you recall or do you
0116
 1 agree with that?
2 A. It is one of the things that comes out in
3 surveys.
4 Q. Okay. For the record, I have handed the witness
5 Exhibit #4183, which is a November 15th, 1971, memorandum
6 from the marketing research department of Philip Morris, to
7 Mr. James Morgan.
8 And it cited the results of a consumer study for
9 Marlboro Lights, do you see that Dr. Cohen?
10 A. Yes.
11 Q. This is a document you have seen in your
12 research, right?
13 A. I don't think I have seen this document. Was it
14 in my set of documents?
15 Q. You have never seen this before?
16 A. I said I don't think I have seen this document,
17 was it in my set of documents that I turned over?
18 Q. Well, I haven't memorized the list, I just wanted
19 to know if you have a memory of seeing this before with
20 regard to Marlboro Lights?
21 A. I think I might remember this, and I don't recall
22 it now, so I am wondering whether I ever saw this document.
23 Q. Okay. Marlboro Lights were introduced in 1971,
24 are you familiar with that?
0117
 1 A. Yes.
2 Q. And I think you testified on direct that
3 companies like Philip Morris often do tracking studies of
4 their particular brands, right?
5 A. I didn't talk about that today, but in my
6 deposition I talked about it.
7 Q. And they do qualitative research regarding their
8 brands?
9 A. They do that as well, yes.
10 Q. Okay. Now, if you could put up 4183.14, and this
11 will be the page that ends in Bates #2757, doctor.

20 MR. WAGNER: You can look through the document if you
21 like, I just want to call your attention to certain data.
22 Now, this is five weeks after the introduction of
23 Marlboro Lights, I think, as you can tell from the document,
24 and they had been tracking some consumer responses, awareness
0118
 1 of Marlboro Lights, and the reaction to cigarettes, right?

17 A. I will try to answer your question, and to save
18 time, I am rushing through this to try to get, to be familiar
19 with it enough to answer your question.
20 MR. WAGNER: Okay. You see on page one of the
21 document, this is a report of the results of the fifth weekly
22 consumer study for Marlboro Lights?
23 A. I recall reading that.
24 Q. Okay, and then interviews were conducted, and
0119
 1 then here is some data that they have now got five hundred
2 fifty-five total people that they have interviewed, right?
3 A. Okay.
4 Q. Okay. Now, of the responses that they are
5 getting, 61% of the people like something about Marlboro
6 Lights, right?
7 A. Okay.
8 Q. And for the strength and taste figures you get
9 36% and 19% of the people agreeing with that, correct?
10 A. Right.
11 Q. And only 10% refer to lower tar and nicotine,
12 right?
13 A. Right.
14 Q. Okay. And that is the data that, as far as you
15 know, was available to Philip Morris about how people were
16 reacting to Marlboro Lights upon their introduction, correct?
17 A. No, that is the response to one question.
18 Q. That's right?
19 A. Which is, what do you like about Marlboro Lights.
20 Q. And I only --
21 A. To the extent, excuse me, to the extent that this
22 represents within category choices, as I talked about before,
23 it may indicate that people who were in the low tar category
24 liked the taste of Marlboro Lights.
0120
 1 So, I mean, I don't, you can't, I can't interpret
2 beyond that, because I don't know. I don't know from looking
3 at this who is in the study.
4 I don't know whether these are people who have
5 switched down, whether these are people who have been smoking
6 other light cigarettes, without having that sort of
7 information -- I know it says brand usage in the far right
8 corner, Marlboro Red or Gold, but that doesn't answer the
9 question. Because they might have been a former Marlboro
10 Red, but still have smoked a number of low tar cigarettes.
11 Q. You just mentioned a couple of things that would
12 be very important for you to know based on surveys, like what
13 people have been smoking, whether they had switched down,
14 correct?
15 A. When you asked this question, in other words, the
16 question, what do you like about Marlboro Lights, what I'm
17 saying is consistent with my testimony this morning. People
18 who are thinking about the within category decision are
19 likely to answer that question differently than people who
20 think you are asking about a decision, why did they shift
21 from Marlboro Reds down to Marlboro Lights.
22 And I submit that if you were asked, if the people
23 understood the question, why did you switch down from
24 Marlboro Reds and Marlboro Lights, you couldn't possibly get
0121
 1 these people making, you know, good taste, because all the
2 qualitative research I have seen indicated that people hated,
3 even the executives and the advertising people, all said that
4 people didn't like the taste.
5 Q. Well, in your opinion, isn't it true that the
6 documents make it very clear that people just like the taste
7 of Marlboro Lights?
8 A. I don't understand the question.
9 Q. I am, well, I am just asking, in response to what
10 you just told me, that taste was horrible, all the documents
11 you have seen, isn't it true, doctor, that the documents you
12 have seen are very clear that people just like the taste of
13 Marlboro Lights?
14 A. No, the documents say the opposite. The
15 documents say, qualitative research, which really explores
16 the issue, and the ad executives and the executives at Philip
17 Morris, all understand that people did not like the taste of
18 Marlboro Lights, they termed it something that had to be
19 overcome. Now, as I testified this morning --
20 Q. I believe you answered my question. You said --

14 MR. TILLERY: Go ahead, doctor.
15 A. The key point that I made this morning, is
16 applicable here, is that for all people in this study, who
17 interpret the question as a within category question, why,
18 what do you like about Marlboro Lights, meaning compared to
19 the other light cigarettes or the other low tar cigarettes
20 you were smoking, they may well say taste. And I wouldn't
21 disagree with that. They may prefer the taste.
22 But they are not going to say that if you are asking
23 if they interpret the question as indicating what do they
24 like about Marlboro Lights as compared to Marlboro Reds.
0123
 1 And that question wasn't asked.
2 MR. WAGNER: Okay, let me ask you this question. One
3 of the documents that you highlighted in your testimony,
4 well, it is actually in the documents, the qualitative
5 research is what you are referring to right now, right?
6 A. I mentioned --
7 Q. You mentioned the qualitative research, and at
8 the end of your testimony you actually put in some very
9 lengthy exhibits here, these were the documents you were
10 relying on for your qualitative research, right?
11 A. And I think a number of those were identified in
12 my expert reports.
13 Q. That's right. And in particular, some of the
14 documents that you were referring to were some focus groups,
15 right?
16 A. Yes.
17 Q. You testified to those?
18 A. Yes.
19 Q. And I believe your expert report, and they are in
20 that stack of documents there. They are the Brand Gruber
21 Focus Groups, right?
22 A. Right.
23 Q. And they were in 1972, March of 1972, and then
24 again in October of 1974. And these are the documents that
0124
 1 you say are supporting the proposition that taste was an
2 impediment to switching to Marlboro Lights, right?
3 A. No, if you read that part of the report, these
4 documents were put in to document the fact that people may
5 not respond by saying health, look up above the thing you
6 highlighted, at the highest point.
7 Q. Sure.
8 A. Why don't you move your finger just a second.
9 You see right above the highlighting there.
10 Q. Yes.
11 A. Moreover, this memo provides an insight into why
12 people, smokers would be likely to under-report health
13 concerns, when asked general questions about their smoking
14 preference. And the quote is taken from this document, the
15 principle reason for switching to low tar is, of course, the
16 health concern.
17 And it is so generally assumed to be understood that
18 smoking is bad for you, that the attitude is, you know -- So
19 what this says is survey response didn't, might not mention
20 it, because it is assumed.
21 Q. I understand that. And so you then looked at
22 focus group intervention of qualitative research in order to
23 get a fuller understanding, right?
24 A. Yes.
0125
 1 Q. Because survey only understands, a certain
2 snapshot, right?
3 A. Right, they give you data point.
4 Q. And so you say, see also, and you included this
5 in the material you submitted to the Court this morning or
6 this afternoon, some focus groups.
7 And for example, the March, 1972, session of the
8 Brand Gruber Focus Groups, for the proposition that people
9 don't like either the taste or the sensation of smoking hi-fi
10 cigarettes, and so they are smoking them for, in spite of
11 what they perceive to be bad taste?
12 A. Wrong.
13 Q. Is that not what you wrote in your report?
14 A. I think when that says, see also, that refers to
15 the quote just before it. Which I just read in, I cited the
16 March, '72, based on Brand Gruber Focus Group for the
17 material I have got quoted. I cited it for that purpose.
18 Q. Is it your position in this case, because I
19 thought that was your testimony, and maybe you are not saying
20 that any more, that taste was an impediment to people
21 switching to Marlboro Lights?
22 A. I absolutely say that, but I wasn't using that
23 document in and of itself to make that point. I was using
24 this document in my expert report, as I indicate I am using
0126
 1 it.
2 Q. Well, lets look at what these documents, Brand
3 Gruber documents say. Whether or not, whether or not they
4 support this propsition.
5 MR. TILLERY: Well, objection to the foundation,
6 because he has clearly said that is not why he used the
7 documents, so if he is using it for that purpose, then I
8 object to this.
9 THE COURT: Well, sustained, you may examine that
10 document and connect it in with this.
11 MR. WAGNER: The March, 1972, sessions from Brand
12 Gruber are part of your reliance materials, correct?
13 A. Yes.
14 Q. Okay. And the quote you have here, most hi-fi
15 smokers, right?
16 A. Okay.
17 Q. Are used primarily, they are for the most part
18 smoking in spite of what they perceive to be bad taste,
19 right? That is what you are citing it for?
20 MR. TILLERY: Are you using that --
21 A. No.
22 MR. TILLERY: If you are using that, may we have a
23 copy of the documents?
24 MR. WAGNER: It is 3359.
0127
 1 A. When I say see also, that refers back to the
2 previous point. See also is in reference to the quote that
3 preceded it.
4 MR. WAGNER: Let me ask you this question, you are
5 familiar with the Brand Gruber documents, correct?
6 A. Well, yes, I have referenced them.
7 Q. Relied upon them? Isn't it a fact, doctor, that
8 the Brand Gruber Focus Group showed that in 1974, there was a
9 major shift in consumer preferences such that consumers no
10 longer believed that taste was an impediment to switching to
11 lights?
12 A. Now, you are switching from the '72 to the '74?
13 Q. Yes?
14 A. If you will hand me the document, I would be
15 happy --
16 Q. 4176. This is 4176, which I believe is, matches
17 up with Bates numbers from your expert report of the --
18 A. Right, so on top of page three, certainly a key
19 finding of that research endeavor was that although a
20 substantial number of people were smoking hi-fi brands,
21 relatively few seemed to enjoy them. Indeed the standard
22 reaction to probes on enjoyment was, I smoke them because of
23 health reasons, but I sure don't like them.
24 Q. And in fact the quote that you have in your
0128
 1 expert report appears in the next paragraph, right? The
2 whole concept of hi-fi cigarettes appears to predispose
3 expectation --
4 A. Yes.
5 Q. And that is the quote that you pulled out of this
6 document, right?
7 A. Alright.
8 Q. Now, if you jump ahead, to page sixteen of the
9 document, which, well, actually I think you can put this up,
10 it is 4176.4.
11 THE COURT: What page did you say?
12 MR. WAGNER: Page sixteen, it is the Bates stamp
13 number that ends in 230. These are the conclusions, right?
14 A. Right.
15 Q. Conclusion one says there appears to have been a
16 major shift in attitudes towards low tar, low nicotine
17 cigarettes during the past two and a half years, right?
18 A. Right.
19 Q. It says the primary characteristic of this shift
20 is that most hi-fi brands no longer feel they are making a
21 major compromise in taste in order to obtain the advantages
22 of low tar and low nicotine. Whereas two and a half years
23 ago, virtually every smoker of hi-fi cigarettes believed that
24 his brand was substantially less tasteful than what he used
0129
 1 to smoke.
2 There was hardly any occurance of this phenomenon at
3 all at this time. Instead there was scientific evidence that
4 smokers of hi-fi cigarettes believed that their brands tested
5 better than regular filter non-hi-fi cigarettes.
6 Do you see that?
7 A. Yes, uh-huh.
8 Q. Alright. Do you have any reason to doubt that
9 data or that conclusion?
10 A. No. But I testified about that this morning.
11 What I said, that the longer people smoke a low tar brand, or
12 in this case a hi-fi brand, is the same story, they adapt to
13 it.
14 Q. All I have asked, Dr. Cohen, is whether you have
15 any data to dispute what Brand Gruber --
16 MR. TILLERY: Well, he is not only not disputing it,
17 he is agreeing with it.
18 THE COURT: Yes, he has testified to that.
19 A. What I am saying, your apparent interpretation is
20 dead wrong, the interpretation is that smokers adapt soon
21 after you smoke a hi-fi cigarette or low tar cigarette for
22 longer periods of time, as I said this morning, it is then
23 harder for you to even contemplate going back to smoking a
24 regular cigarette.
0130
 1 MR. WAGNER: Actually, Brand Gruber talks about those
2 who switch, don't they? Go to the next page, which would be
3 4176.5, and at the bottom --
4 A. Well, can I, where I am reading it says two and a
5 half years ago, virtually all smokers of hi-fi brands
6 indicated they smoked their brands because of health fear,
7 which is exactly what my testimony is.
8 Q. And I understand that, and my question to you
9 relates to whether or not Brand Gruber is now finding a
10 switching in attitudes, in the last two and a half years --
11 So you actually come back, and if you highlight the whole
12 bottom paragraph, yes, start up in the recent study, okay.
13 Over half of the respondents indicated selection of
14 hi-fi brands out of the preference to other brands, they
15 liked it better now. Somewhat less than a fourth indicated
16 that they made the switch because of health reasons, isn't
17 that what that data is showing?
18 A. Yes, but the switch from what to what?
19 Q. They had switched to hi-fi brands, right? That
20 is what Brand Gruber is talking about?
21 A. Right, they switched because regular brands were
22 too harsh, right.
23 Q. Okay, so your testimony then about taste, about
24 people is that they are just, they don't even understand what
0131
 1 they are doing, right? They are just rationalizing their
2 taste?
3 A. They adapt to their taste and their
4 expectation. There is a set of qualitative documents that
5 talks about the following: People's expectation regarding
6 taste for low tar cigarettes are so much lower that they can
7 like them, not on the basis, well, they say this is about
8 what you should get from a low tar brand.
9 Q. In fact, I think what you said in your
10 surrebuttal report is that some light cigarette smokers
11 unconsciously choose a cigarette for health reasons, even
12 though they are not cognizant of their own motivation to
13 admit that, is that right?
14 A. It can happen.
15 Q. So people aren't even smart enough to say, right?
16 A. Well, what you just said is not what I said, I
17 don't want to debate you on it, but --
18 Q. Well, it is just that people don't have the
19 ability to respond correctly when they are answering a survey
20 question? Is that what you are trying to tell the Court,
21 that we should ignore what people say in response to survey
22 questions?
23 A. No, what I talked about is a difficulty with a
24 survey approach, where you are asking a limited number of
0132
 1 questions, and not exploring in-depth at getting to the
2 truth. And some people, I said some people, are so
3 concerned about health, they may not even want to acknowledge
4 it.
5 But, if you go back over my testimony this morning,
6 you will see that I laid out, virtually in order, the most
7 important reasons why a survey will under represent certain
8 answers.
9 Q. Okay. And specifically with respect to taste,
10 and you did talk about the Listerine effect?
11 A. I did.
12 Q. And you gave us the whole effect of what happened
13 with Listerine. And I think as it applies to cigarettes, you
14 are saying that means that when people switch, they can
15 actually experience a lighter impact, right?
16 A. I didn't say it that way, but it is possible that
17 that is true. In other words, I didn't say it that way, but
18 I am agreeing with you, that it is possible it is true.
19 What I said was that the Listerine effect meant that
20 when people smoked a cigarette that was light, it confirmed
21 the fact, the lightness of it, or the air coming in, whatever
22 it is, confirmed the fact that it was healthier. That is
23 what I called the Listerine effect. Which comes from
24 Listerine tasting strong, so therefore it kills germs.
0133
 1 Q. It means that the person would experience in the
2 throat, in the mouth, the sensation that it was affected,
3 because there would be a lighter, milder taste, right?
4 A. Yes.
5 Q. And enough people report this as occurring, that
6 this sensation, and the rationalization that people really
7 are experiencing these results, correct?
8 A. I don't know how many experience that result.
9 Certainly some people do.
10 Q. Okay, but you would agree with me that since
11 enough people report these results, that is of smoking a
12 lighter or low tar cigarette being lighter, more gentler,
13 less irritating, less harsh, that you believe it is not
14 primarily a rationalization, but they actually are
15 experiencing those effects?
16 A. They are experiencing those effects, but their
17 rating of them, their response, is based upon a combination
18 of an expectation about a lower level of taste, it is based
19 upon an adaptation to a lower level of tasting flavor. So
20 the process is more complicated when you weight it out.
21 Q. And the reason, the reason that people are having
22 this effect, and I think you testified to this this
23 afternoon, I think when you were testifying to the Listerine
24 effect, is because people are taking in more air when they
0134
 1 are smoking those cigarettes, that is why it is a lighter
2 sensation correct?
3 A. I think that is possibly the major reason.
4 Q. The major reason?
5 A. Possibly, yes.
6 Q. And if people in fact are taking in more air,
7 then the dilution that is built in the ventilation is
8 actually working, air is coming in through the filter?
9 MR. TILLERY: That goes beyond the scope of his
10 direct examination, Your Honor.
11 MR. WAGNER: Well, he testified --
12 THE COURT: Overruled.
13 MR. WAGNER: Thank you.
14 A. When you say it is working, what do you mean? I
15 don't understand the question.
16 MR. WAGNER: Do you understand how air gets into the
17 lighter cigarette?
18 A. Well, there's several ways. With Marlboro
19 Lights, it would be the holes in the paper.
20 Q. That is what I am referring to. So the smokers
21 of Marlboro Lights are in fact feeling more air?
22 A. Yes.
23 Q. And that is why they are getting this sensation,
24 that means air is coming through holes, and the dilution is
0135
 1 working?
2 THE COURT: Well, now that you put it that way, I
3 don't think, he certainly has offered his expertise for that
4 type of proposition, so I would sustain that.
5 Q. At the end of the day, Dr. Cohen, would you agree
6 with me that taste and flavor are important brand
7 differentiating factors and respondent accurately reporting
8 information?
9 A. I would agree with part, it is a compound
10 question. There are important differentiating information.
11 Whether people accurately report it, I think they try to
12 accurately report it. But whether they are able to depends
13 on a lot of things, including the kinds of questions that are
14 asked. So I think your statement is a bit general.
15 Q. This is your supplemental record, you say taste
16 and flavor as well as image are important brand
17 differentiating factors to accurately report this
18 information?
19 A. Yes. I should say try to accurately report. In
20 other words, here is my point.
21 They are accurately reporting. Whether it is valid
22 or not is different. In other words, they are trying, they
23 are not hiding, they are reporting accurately.
24 Q. Right.
0136
 1 A. But whether, whether what they are reporting is
2 correct, what they are reporting, in actuality, is another
3 story. They are accurate, they are not lying to the
4 interviewer, they are not deceiving the interviewer. But
5 whether it is an accurate reflection of the cigarette is not
6 clear.
7 There are all kind of disguised studies. Marketing
8 disguises. You can put a label on a product, and people will
9 accurately report they like it better, even though it is the
10 same product. They are being accurate, but their answers do
11 not validly represent the fact that it is the same product.
12 Q. Now, my question is, are those your words in your
13 supplemental expert report?
14 A. They are.
15 Q. And is it your testimony then when people are
16 reporting in answers to surveys, that we just can't take
17 their answers as true because they are inaccurate?
18 A. No, I didn't say that.
19 Q. Okay.
20 A. What I said, what I said was that you have to be
21 very careful about how the question is asked. And a survey
22 that is a, that basically collects a data point, without
23 going into depth, may not tell you very much about people,
24 how people actually think or what their beliefs are.
0137
 1 Q. Lets go back to the list, why they choose lights.
2 We have got health, we have got at least some measure of
3 taste, is that correct?
4 A. Sure.
5 Q. And will you agree with me that price is a
6 consideration for people?
7 A. Sure.
8 Q. And will you agree with me that Cambridge Lights
9 was brought in in 1986 as a price proposition?
10 A. Yes.
11 Q. Okay. And are you aware that class
12 representative Susan Miles testified that she switched to
13 Cambridge Lights because they were cheaper?
14 A. You have a class representative named Susan
15 Miles?
16 Q. You don't know that?
17 A. I didn't look at their, I haven't examined class
18 member's testimony.
19 Q. Okay. People might switch, might choose lights
20 because of family members and friends telling them that is
21 what they ought to do, correct?
22 A. Yes, uh-huh. We don't know why family members
23 are telling them, maybe it is health concerns, probably
24 health concerns.
0138
 1 Q. Okay. People might also choose light cigarettes
2 because they are popular?
3 A. Yes, they might. But not just because, see.
4 Q. No, I understand that, doctor.
5 A. See, I want --
6 Q. That is one factor?
7 A. It is, as long as you understand what I'm saying
8 is, these are attributes and they comprise a field of force,
9 and together they effect people's decisions.
10 Q. I understand that. Now, in order to try to
11 disaggregate between these factors and whatever other reasons
12 for choosing lights, you would have to have an individual
13 inquiry into class member's information, opinions and
14 beliefs, right? You would have to get into people's minds?
15 A. To not, not to know the direction, to know the
16 weight. Very, very important difference. Health will
17 always have a positive impact on choosing lights as opposed
18 to regular. But the exact weight assigned to health will
19 vary over people. That is what I testified about.
20 Q. Well, you agree, do you not, that it is more
21 likely than not that at least some class members focus
22 particularly on taste or price, correct?
23 A. If, the way I would say that is, it is more
24 likely than not that some class members assigned relatively
0139
 1 high weight to taste. That would be my interpretation.
2 I think that is, I don't know, that is how I would
3 understand the situation.
4 Q. Okay. But you haven't done anything that would
5 allow us to disaggregate between these class members in this
6 case, right?
7 A. No, I haven't.
8 Q. Okay, so all we can say is that for a given
9 person, lightness may have been important, taste may have
10 been important, price may have been important, we can't go
11 any further based on data that you have?
12 A. Based on data?
13 Q. Right?
14 A. You know, I didn't collect any data. But I have
15 said, you know, that every single person will be influenced
16 in a positive direction by the health reassurance of a light,
17 lower tar cigarette.
18 Q. Well, you have not attempted to identify or
19 quantify the number of class members who interpret the word
20 light to mean safer or healthier, have you?
21 A. No, I haven't done any quantitative research with
22 class members, as I told you repeatedly.
23 Q. And you haven't attempted to identify or quantify
24 the number of class members who interpret the words lowered
0140
 1 tar and nicotine to mean safer or healthier?
2 A. I haven't done any quantitative research on class
3 members.
4 Q. And you don't know what percentage of class
5 members believe Marlboro Lights are safer than Marlboro
6 Regulars, do you?
7 A. Haven't done any quantitative research.
8 Q. And the same is true for Cambridge Lights as
9 compared to Cambridge, correct?
10 A. I haven't done any quantitative research with
11 regard to class members.
12 Q. Now, let's look at the next level we talked
13 about. Smoking and choosing lights, the next issue is, lets
14 talk about this, you said that there is an information
15 environment, and that people are choosing lights, so lets
16 talk about lights information and where it comes from.
17 A. Okay.
18 Q. Now, your opinion is the consumers generally
19 believe that lights are safer than full flavored cigarettes,
20 right?
21 A. Yes.
22 Q. And you understand, don't you, that Plaintiffs in
23 this case are saying that Philip Morris should be held
24 accountable soley and exclusively on the basis of two
0141
 1 particular descriptors, the words lights and lowered tar and
2 nicotine, and nothing else, right?

13 MR. WAGNER: Alright. Lets understand, Dr. Cohen,
14 how it is that a smoker might come to the conclusion, you
15 will agree with me, will you not, that there are many sources
16 of information in any smoker's or class member's information
17 environment, correct?
18 A. Yes.
19 Q. And all of the information that is available to a
20 consumer is what exists in the information environment,
21 correct?
22 A. Correct.
23 Q. Okay, and will you agree with me that there are
24 sources other than tobacco companies and Philip Morris and
0148
 1 their spokespeople from which consumers obtain information
2 about the health effects of cigarettes, right?
3 A. I said that this morning --
4 Q. Alright.
5 A. On my demonstrative exhibit, I pointed that out.
6 Q. I understand, I am just asking you whether or not
7 that is correct, Dr. Cohen.
8 One of the sources of information, for example, is
9 doctors, right?
10 A. Okay.
11 Q. Is that correct?
12 A. Fine.
13 Q. Another source of information is family members,
14 right?
15 A. Fine.
16 Q. Another source of information is magazines,
17 right?
18 A. Good, fine.
19 Q. Another source of information is television,
20 right?
21 A. Yes.
22 Q. Another source of information is the radio,
23 right?
24 A. Right.
0149
 1 Q. Another source of information is newspapers,
2 right?
3 A. Right.
4 Q. Another source of information might be schools
5 and teachers, right?
6 A. Right.
7 Q. Another source of information might be peers and
8 friends, right?
9 A. Right.
10 Q. Another source of information is the public
11 health community?
12 A. Right.
13 Q. Such as the Surgeon General?
14 A. Absolutely correct.
15 Q. Another source of information might be other
16 tobacco companies, besides Philip Morris, right?
17 A. Right.
18 Q. Okay. And it is true, is it not, that each of
19 these are capable of communicating a message about smoking
20 and health?
21 A. Yes, they are capable of doing it, yes.
22 Q. And you will agree with me that individuals react
23 differently to information that they receive, right?
24 A. I don't know what you mean by that.
0150
 1 Q. Well, your field, the whole field of consumer
2 information processes is the study of how individuals respond
3 to information that is presented to them, right?
4 A. Yes.
5 Q. Okay. And I think, will you agree with me that
6 consumer behavior is individualistic?
7 A. Depends on how you talk about it. If you talk
8 about consumers being aggregate, then I wouldn't, I can't
9 agree with it. In other words, you can look at a group of
10 people, and all the people left in Mississippi, and study
11 their consumer behavior.
12 Q. Is it true that what a scientist in your area
13 does is to think about both how an individual responds to
14 stimuli and then how particular individuals, because of
15 background, knowledge, personality, social class or whatever
16 would respond, and these are all variables which in your
17 field are called segmentation variables, and it is possible
18 to look at how these effect an individual's behavior?
19 A. Whether or not, whether a scientist would do that
20 depends on the question a scientist would investigate. I
21 mean, it doesn't sound like a crazy idea, but what a
22 scientist does depends upon the subject of the inquiry.
23 Q. Right. All I am asking you is whether or not
24 that statement is correct, that what a scientist in your area
0151
 1 does is think about how individuals respond to stimuli,
2 right?
3 A. No. When you say my area, a member of the
4 general public policy in marketing, I look far beyond what
5 individuals do.
6 Q. Is that one of the areas you look at?
7 A. That's right. But you haven't made it very
8 specific, I don't know how to answer your question.
9 Q. Okay, will you agree with me that consumer
10 behavior, at least to a certain extent, is individualistic?
11 A. Every behavior, to some extent, is
12 individualistic, to some extent it is shared.
13 Q. Okay. And in your testimony you referred to, I
14 believe, you referred to a memo by S. Dunn, I have forgotten
15 which exhibit it was. Exhibit #72.
16 MR. TILLERY: Which one is that?
17 MR. WAGNER: Well, let me not ask you about the
18 document for a moment, let me see if I can short circuit this
19 a different way.
20 Will you agree with me, sir, that many authoritative
21 and credible sources were stating directly and explicitly
22 that lights and low tar cigarettes were safer than high tar
23 cigarettes, and therefore that smokers who cannot or will not
24 quit should switch to those light cigarettes?
0152
 1 A. Yes, I do.
2 Q. And so the information environment includes
3 advice from those credible medical and scientific
4 authorities, saying if you can't or won't quit, switch to low
5 tar, right?
6 A. That is true.
7 Q. Okay.
8 A. They didn't say smoke Marlboro Lights, they said
9 smoke a tar low cigarette.
10 Q. I understand.
11 A. And I believe what they meant, a real low tar
12 cigarette, not a cigarette that is an ersatz --
13 Q. Well, Your Honor, I have asked him a question,
14 he's gotten an answer, and then I think he should wait for
15 the next question.
16 THE COURT: Okay, given your remaining question, I
17 will sustain the objection.
18 MR. WAGNER: Okay. Let me ask you this question, is
19 there any work you have done in this case in order to permit
20 the Court to disaggregate between these sources of
21 information as to what effected these class members and
22 caused them to smoke a light cigarette?
23 A. No, I have not attempted to do that, and I don't
24 feel it is necessary.
0153
 1 Q. In fact it is true, is it not, that at the very
2 same time that credible, authorative and scientific
3 authorities were saying lights and low tar were safer, Philip
4 Morris was not saying that lights are safer, correct?
5 A. Well, Philip Morris, if some Philip Morris
6 document revealed that they understood that their light
7 cigarettes were not safer --
8 Q. That is not my question, doctor.
9 A. Well --
10 Q. Are you aware of any statements by Philip Morris
11 specifically stating that its light cigarettes are safer or
12 safer than full flavored cigarettes?
13 A. That wasn't your question, I'm not --
14 Q. I'm asking you a new question.
15 A. I'm not aware of any statement.
16 Q. Are you aware of any express statements by Philip
17 Morris that Marlboro Lights are safer than Marlboro full
18 flavored?
19 A. They did not make express statements, I testified
20 about that earlier.
21 Q. Okay, and you are not aware of any express
22 statements by Philip Morris that Cambridge Lights cigarettes
23 are safer than Cambridge full flavored cigarettes, are you?
24 A. They did not make any express statements and I
0154
 1 explained why earlier.
2 Q. Okay. And you can't identify, can you, any
3 Philip Morris statement encouraging smokers to switch to
4 Marlboro Lights or Cambridge Lights cigarettes for health or
5 safety reasons, can you?
6 A. Am I, can I only answer yes or no?
7 Q. That is the way I have asked the question. Can
8 you identify a single, direct statement by Philip Morris
9 encouraging --
10 A. No.
11 Q. Encouraging smokers to switch to Marlboro Lights
12 or Cambridge Lights for health or safety reasons?
13 A. No.
14 Q. Can you identify any direct statements by Philip
15 Morris to smokers saying you should switch to lights or low
16 tar cigarettes for health or safety reasons?
17 A. No.
18 Q. Okay. Can you identify any statement in any
19 Marlboro Lights or Cambridge Lights advertising or on any
20 pack stating that those cigarettes are safer than their full
21 flavored counterparts?
22 A. Not using the word safer.
23 Q. Okay. Isn't it true that, Dr. Cohen, that the
24 class members in this case never heard Philip Morris say that
0155
 1 lights are safer?
2 A. How could I know what the class members heard
3 from Philip Morris?
4 Q. Okay.
5 A. I mean, one class member might be a Philip Morris
6 employee, for all I know.
7 Q. Now, let me just make sure I am clear on one more
8 point, and then I am going to leave this line of
9 questioning. Bear with me for just a second.
10 You have not attempted to determine what percentage
11 of information on the health risks of smoking that smokers
12 obtained from Philip Morris, or tobacco companies, as opposed
13 to the other sources, even though such a study is possible,
14 right?
15 A. Even though such a study is possible?
16 Q. Yes?
17 A. I'm not sure I am prepared to say that such a
18 study is possible today. Might be theoretically possible,
19 but I would have to think long and hard about how you could
20 do such a study.
21 Q. Might be difficult, but it is not totally
22 impossible, is it?
23 A. With an unlimited budget, maybe.
24 Q. Would you agree with me that there is a way,
0156
 1 though, to determine what percentage of information on the
2 health risks of smoking, smokers obtain from tobacco
3 companies and their spokespeople, as opposed to from any of
4 the other sources?
5 A. Not in the real world. You have to, you would
6 have to do a study which would be so far-fetched, it is only
7 true, it is only true in theory that you can do it.
8 Practically speaking, you couldn't do it.
9 Q. Do you recall giving a deposition in some
10 litigation taking place in West Virginia, in June of this
11 year? June of this last year.
12 A. Yes, I remember giving a deposition.
13 Q. Do you have a transcript? June 17th and 18th.
14 And I'm going to particularly ask you about page twenty-four.
15 MR. TILLERY: Page twenty-four?
16 A. I'm sorry, what page did you say?
17 MR. WAGNER: Twenty-four. Page twenty-four, line
18 fourteen:
19 Question, is there any way to determine what
20 percentage of information on the health risks of smoking,
21 smokers obtain from tobacco companies and spokespeople from
22 tobacco companies as opposed to from these other sources?
23 Answer, it would be very difficult to try to estimate
24 the quantitative impact in different sources. It is not
0157
 1 totally impossible, but it would be difficult.
2 That is what you were asked, and that is your
3 testimony?
4 MR. TILLERY: Excuse me, that is not impeaching, Your
5 Honor.
6 THE COURT: I would rule that that is, would not be
7 impeaching.
8 A. I think I just said that, that it is
9 theoretically possible, but practically would be impossible
10 unless you had an unlimited budget.
11 MR. WAGNER: You have not undertaken any studies to
12 determine whether smokers attributed more health and safety
13 significance to public health statements, such as from the
14 public health community, about lights or lowered tar, as
15 opposed to the use of the descriptors themselves, right?
16 A. Your question is have I run a study?
17 Q. Correct.
18 A. I have run no quantitative study in this case on
19 any subject.
20 Q. Okay. Now, the next issue I believe is why
21 consumers might then choose a particular brand, we were going
22 to go through all the levels. Maybe I am a little bit
23 ahead.
24 We discussed why people smoke and why they smoke
0158
 1 lights, and we have talked about their various factors,
2 right?
3 A. Yes.
4 Q. Now, the next level of specificity I want to talk
5 about is why class members choose Marlboro Lights or
6 Cambridge Lights, okay?
7 And you will agree with me, will you not, that
8 smokers have a variety of different reasons for choosing a
9 specific brand, right?
10 A. Yes. The multi-attribute model again applies to
11 that.
12 Q. Alright. One factor might be advertising?
13 A. Yes.
14 Q. Another might be taste?
15 A. Yes.
16 Q. Another might be price?
17 A. Yes.
18 Q. Another might be peer influence?
19 A. Yes.
20 Q. Another might be parental influence?
21 A. Yes.
22 Q. Another might be popularity of brand?
23 A. Yes.
24 Q. Another factor might be recommendation from
0159
 1 others?
2 A. Yes.
3 Q. Okay. And you are not aware of any test to
4 disaggregate any of these factors or separate between these
5 factors, are you?
6 A. No.
7 Q. You haven't conducted such a study, have you?
8 A. I have not done any quantitative studies in
9 connection with this case.
10 Q. Okay. And in fact, if one wanted to get to a
11 very specific level, such as asking whether someone would
12 have switched from one brand to another, for any particular
13 reason, you would feel uncomfortable offering such an opinion
14 because it gets too specific, it requires knowledge about
15 each individual, right?
16 A. To know exactly what the weights were for that
17 person, yes. You would have to, you would have to study that
18 person to know what the weights were.
19 Q. Okay. And would it be fair to say that it would
20 be inappropriate to predict the behavior of a given
21 individual on a brand choice level, because you have to know
22 an awful lot about the person's entire purchase history for
23 that brand and current perceptions, right?
24 A. In order to predict the specific brand that a
0160
 1 person would purchase, that is correct.
2 Q. Okay. And it is true, is it not, groups don't
3 respond to advertising, advertising is processed by
4 individuals, depending on their background, needs and wants?
5 A. Yes. That is true by definition. People process
6 information, groups don't.
7 Q. And therefore, isn't it true, Dr. Cohen, that if
8 you want to understand how an individual responds to
9 advertising, you can't take your measurement at a group
10 level, you have got to take your measure at an individual
11 level?
12 A. You can take them at a group level, but you have
13 to have individual level data, which you can then aggregate
14 for the group. But you would have to have individual level
15 data, that's correct.
16 Q. Okay. And whether individual -- You have done no
17 study of class members, right?
18 A. You know I haven't.
19 Q. Okay. So now, lets talk about what you wanted to
20 talk about, which was some survey data, I believe you
21 testified about some survey data in your direct testimony,
22 right?
23 A. I believe.
24 Q. Okay, so now, lets talk about surveys, find out
0161
 1 what they show. Dr. Cohen, are you aware of any survey that
2 shows that 100% of survey respondents believe that lights are
3 safer?
4 A. No, the reasons I have discussed --
5 Q. Just whether or not you are aware of it, are
6 you?
7 A. No, I am not.
8 Q. That is a no, right?
9 A. That is no, right.
10 Q. Are you aware of any survey showing that 100% of
11 survey respondents believe that Marlboro Lights or Cambridge
12 Lights are safer than their full flavored counterparts?
13 A. That's a no.
14 Q. Your Honor, for, I put on here M-L and C-L for
15 Marlboro Lights and Cambridge Lights, for short.
16 And that is a no, right, doctor?
17 A. That is a no.
18 Q. Are you aware of any survey of Cambridge Lights
19 smokers?
20 A. You mean exclusively done on Cambridge Lights
21 smokers?
22 Q. Yes?
23 A. No.
24 Q. Any survey that you are aware of, whether you did
0162
 1 it or anybody else, of class members?
2 A. Exclusively class members?
3 Q. Class members?
4 A. I just want to know if you mean exclusively class
5 members.
6 Q. Well, lets start there.
7 A. No.
8 Q. And you haven't gone back to any other data set
9 and tried to determine whether or not class members were
10 included within that data set and tried to derive any results
11 from the, specific to the class, have you?
12 A. I haven't gone back, if I understand what you are
13 asking, I haven't gone back into someone elses survey data
14 and tried to pull out data just for the class.
15 Q. Exactly what I am asking.
16 A. No, I haven't.
17 Q. And you haven't seen any survey by Philip Morris,
18 or any other tobacco company, that is specific to persons who
19 purchased cigarettes in Illinois, is that correct?
20 A. No.
21 Q. And you didn't attempt to break out from any,
22 break out from any other survey, any data specific to
23 Illinois purchases from any survey done by a non-tobacco
24 company or by any independent organization, is that correct?
0163
 1 A. That's correct.
2 Q. And you haven't seen any consumer perception data
3 gathered by or on behalf of the tobacco company or
4 non-tobacco companies, specific to Illinois, right?
5 A. Right. Well, I have to think about it, there may
6 have been focus groups, had to be focus groups conducted in
7 Chicago. There is a firm called Social Research,
8 Incorporated, that did a lot of research for some tobacco
9 companies, they are headquartered in Chicago. And I know
10 they did several studies. And their membership in those
11 studies was Illinois smokers.
12 Q. Okay, you have a memory of some focus groups that
13 may have been done?
14 A. Yes.
15 Q. The survey in Illinois --
16 A. No, I didn't say survey, but I am aware of
17 qualitative research.
18 Q. Okay. I will add there focus groups, mainly,
19 Illinois, or Illinois?
20 A. They are. Because social research was in
21 Chicago, and Sid Levy did the research, and it was in
22 Chicago.
23 Q. Have you seen data that was gathered by or on
24 behalf of tobacco companies specific to smokers of Marlboro
0164
 1 Lights?
2 A. Using survey, let me see if I understand the
3 question. Using surveys, can you repeat that again?
4 Q. Have you seen any surveys gathered by or on
5 behalf of the tobacco companies specific to smokers of
6 Marlboro Lights?
7 A. Well, you just showed me one, didn't you? It is
8 the document you just gave me, a survey by Philip Morris on
9 Marlboro Lights, so the answer would be yes, you just showed
10 it to me.
11 Q. Okay, apart from that you had never seen one?
12 A. Well, I don't know. I wouldn't have remembered
13 that except you just showed it to me. It is hard to sit
14 here, and I have been looking at this stuff, it is hard for
15 me to remember every survey that I looked at.
16 Q. Prior to your testimony today, you had not seen
17 any consumer perception data gathered by or on behalf of
18 tobacco companies specific to smokers of Marlboro Lights,
19 have you?
20 A. I don't think that is right.
21 Q. Okay. You remember giving a deposition in this
22 case in December?
23 A. I did give a deposition. Maybe I missed
24 something, you actually read very fast.
0165
 1 Q. I apologize. What I want to know is, prior to
2 today, or at least the time of your deposition, which was in
3 December, had you seen any consumer cigarette data gathered
4 by or on behalf of tobacco companies, specific to smokers of
5 Marlboro Lights?
6 A. By consumer perception data, I wouldn't
7 necessarily call it data material. So consumer perception
8 data is not the same as a survey.
9 Q. Okay. So for surveys, you just haven't seen
10 that, right?
11 A. Right, except for what you showed me today.
12 Q. And have you seen any surveys limited to
13 purchases of Cambridge Lights cigarettes in Illinois?
14 A. No, I haven't.
15 Q. And with respect to the surveys that you
16 referenced, I think you had three of them in a packet of
17 evidence, Knowledge Networks and Roper and one other one.
18 With respect to those surveys that you reference in your
19 direct testimony, have you done any examination of the
20 underlying data in order to determine whether or not, and to
21 what extent, the demographics of the sample population match
22 the demographics of the class?
23 A. No.
24 Q. Okay. In fact, you don't know what the class
0166
 1 size is, do you?
2 A. No.
3 Q. Okay. You don't know what the age distribution
4 of the class is, do you?
5 A. No.
6 Q. You don't know what the income distribution of
7 the class is, do you?
8 A. No.
9 Q. You don't know what the education distribution of
10 the class is, do you?
11 A. No.
12 Q. You don't know their urban or rural distribution,
13 do you?
14 A. No.
15 Q. You don't know the percentage of the class -- I'm
16 going to slow down.
17 You don't know the percentage of the class, you don't
18 know how the class breaks down between current and former
19 smokers, do you?
20 A. No.
21 Q. And you don't know the percentage of the class
22 that initiated their smoking with light cigarettes as opposed
23 to switching from full flavor, do you?
24 A. No.
0167
 1 Q. And with respect to all of those variables, they
2 may change from year to year, right? Age, income, education?
3 A. Well, physically they change from moment to
4 moment.
5 Q. Alright.
6 A. People die, people are born, people start
7 smoking, people stop smoking.
8 Q. Right. And with respect to all of these
9 variables, in Illinois, you haven't undertaken an examination
10 of any of the data that you have looked at, from the surveys
11 or anywhere else, to determine whether or not there is a
12 match between that data and any of the demographic
13 characteristics in Illinois, have you?
14 A. I have not.
15 Q. Okay. Now, is there any survey that shows that
16 smokers who form their safety beliefs, specifically did so
17 because of the descriptors lights and lowered tar and
18 nicotine?
19 A. Not that I am aware of.
20 Q. Okay.
21 A. I mean the Knowledge Networks survey asked
22 questions about the words --
23 Q. Right.
24 A. And so in an indirect way, that survey does ask
0168
 1 people what those words mean to them. So, maybe that ought
2 to be --
3 Q. We are going to talk about --
4 A. Tell me what you meant by your last question.
5 Q. We are going to talk about Knowledge Networks at
6 some length.
7 First lets talk about what some surveys actually show
8 in the data. You testifed that you believed that everybody,
9 everybody was influenced within a certain direction, right?
10 A. I don't think I said that. I think I said
11 theoretically everybody has to be influenced in a certain
12 direction, or else several social science fields completely
13 crumble.
14 Q. Okay, I just want to know if we can understand
15 what it is that survey data is showing about people's belief
16 about lights being safer and not safer, okay?
17 Lets look at 44302. You are familiar with Roper,
18 correct?
19 A. Yes, there are number of Roper studies.
20 Q. Right. Okay, we are going to start with this
21 one, a Roper study, which is 4402, and I will give one to
22 Your Honor. I think we may have seen this before in this
23 case.
24 Dr. Cohen, I will give this to you. 4402 is a study
0169
 1 of smoker's habits and attitudes with special emphasis to low
2 tar cigarettes, from May of 1986. See that, Dr. Cohen?
3 A. I think it is May, '76.
4 Q. I misspoke, I apologize, right? You are
5 familiar, you have seen this study before?
6 A. Oh, yes.
7 Q. And his survey asked low tar smokers for the
8 primary attributes they like about their brands, right?
9 A. Well, I don't like to talk about a survey the way
10 your question, when you say asked about. Surveys ask
11 specific questions, they don't ask about.
12 Q. Okay.
13 A. So you need to focus me on a specific question.
14 Q. Okay. Look at page fifteen, and it is 3448.17,
15 page fifteen, doctor?
16 A. Okay.
17 Q. Doctor, let me see your copy, if I can, of this
18 document.
19 A. Well, Roper did a number of studies.
20 Q. Right. Okay, it is page seventeen, I
21 apologize. That is the page I am looking at.
22 A. Okay.
23 Q. As things that they liked and disliked about low
24 tar brands, right? That is the category that Roper is
0170
 1 describing?
2 A. Yes. It says a little later on about the brand
3 they smoked most often.
4 Q. Correct.
5 A. Right.
6 Q. And to determine the particular appeal of low tar
7 brands and to explore criticims of them among their smokers,
8 we have all smokers, we have a list about the brand they
9 smoke most often, and the criticisms they have of their
10 brand, right?
11 A. Yes.
12 Q. And of those, better for your health got what
13 percentage?
14 A. 30%.
15 Q. 30%. Next would be 4423.
16 A. Are all the questions going to deal with the
17 brand they currently smoke? Because otherwise we are
18 comparing apples and oranges.
19 Q. Your Honor, well, Your Honor, I move to strike
20 that, there is no question.
21 THE COURT: No, he is commenting on the survey.
22 A. Unless you have the same question, I mean, the
23 chart that you are putting up there makes no sense unless we
24 --
0171
 1 MR. WAGNER: Your Honor, I move to strike that.
2 THE COURT: Well, the Court will buy that, lets get
3 on with this. I think it is very important to this line of
4 questioning, we are going to start making comparisons and
5 that is his position, unless you have a different position,
6 state it to the Court now.
7 MR. WAGNER: Lets move ahead to 1984, Your Honor.
8 This is Roper from June of 1984, see that?
9 A. Right.
10 Q. And just for the Court's reference, on page
11 sixty, which I believe is, I just want to go to page sixty,
12 Your Honor.
13 It says how the study was conducted, says it was a
14 nation-wide subject of twenty-five hundred people. That's
15 all I am putting out on this page, it is a large study.
16 And now, if you come back to page thirty-two, there
17 is a question about whether or not people agree or disagree
18 that low tar cigarettes reduce the risk of health risks in
19 smoking, do you see that?
20 A. Yes. You called my attention, I believe to page
21 sixty, and you said you wanted to get into the record
22 something about the quality of the study?
23 Q. No, just the sample size, that's all.
24 A. Okay, because it is not a probablity study.
0172
 1 Q. Alright.
2 A. So that reduces the quality.
3 Q. Okay, that's fine.
4 Page thirty-two, they are asking whether people agree
5 or disagree with certain propositions, correct?
6 A. Correct.
7 Q. Okay. And for 1984, if you look at the one, two
8 three, four, five, sixth one down, it is whether low tar
9 cigarettes reduce the health risks in cigarette smoking, and
10 what is the percentage in 1984?
11 A. Forty.
12 Q. 40%, not 100%, is it?
13 A. No, now wait a minute, this is what I objected
14 to. You have got different questions and you are putting the
15 numbers up as if they -- They can't be, this is a grossly
16 misleading exhibit. These are different questions. You
17 can't compare these numbers.
18 Q. The question is whether or not, in response to
19 their question that they asked, whether low tar cigarettes
20 reduce the health risks of cigarette smoking, more than 40%
21 of the people agreed with that statement. That's all I am
22 asking you, Dr. Cohen.
23 A. Okay, that is what it says.
24 Q. Thank you. You did a study in 1994, correct?
0173
 1 A. Yes.
2 Q. Okay. This would be 3004, I believe. You
3 referenced that in your direct testimony, right?
4 A. I believe so, oh, I definitely do, yes,
5 absolutely.
6 Q. Now, Exhibit #3004, that is the data from your
7 1994 study. And you presented that to us before your
8 deposition, correct?
9 A. It looks like it, yes.
10 Q. Okay. Now, if you turn in, turn in two, three,
11 four, five, six, seven, eight, nine, to the tenth page of
12 this exhibit, and we just put it together the way it was
13 handed to us, doctor, I think it says page seventeen in the
14 top righthand corner?
15 A. Yes.
16 Q. It says question K6, I believe?
17 A. I am there.
18 Q. Okay. It says, have you ever used the tar
19 numbers in advertising on a cigarette pack in order to make
20 judgments about the relative safety of different brands of
21 cigarettes?
22 A. Right.
23 Q. Okay. And for the low and medium ranges, which
24 are in the six to fifteen category, we see the answer of 12%
0174
 1 to 15%, right?
2 A. Of people who use the tar numbers.
3 Q. Of people who use the tar numbers. So very few
4 are using them for safety, correct?
5 A. That's correct. They didn't even recall the
6 numbers.
7 Q. That's correct. Now, if you go three pages
8 further into this exhibit, you yourself asked a question, I
9 think it is K9A, you wanted to know whether people agreed or
10 disagreed with this, right? Switching --
11 MR. TILLERY: Which page are you on?
12 MR. WAGNER: Three more pages in, and it is page
13 twenty, I believe it says. See that, question 9A, K9A?
14 MR. TILLERY: Okay.
15 MR. WAGNER: Got it. Switching from a 20 milligram
16 tar cigarette to a 16 milligram tar cigarette would
17 significantly lower that person's health risk due to smoking,
18 for someone who smokes a pack a day.
19 That is a question you put to survey respondents,
20 right?
21 A. Well, it is my survey, yes.
22 Q. Okay. And what percentage agreed with that?
23 From the medium, the medium category, the eleven to fifteen,
24 which is the category that reports where Marlboro Lights and
0175
 1 Cambridge Lights merge, what is that?
2 A. 28%.
3 Q. 28%?
4 A. I must object.
5 Q. You agree --
6 A. This is outrageous.

23 MR. WAGNER: Right. This is 4493, Your Honor.
24 This is another study that examined smoker's beliefs
0176
 1 regarding lights and low tar cigarettes, completed at the
2 University of Missouri, in Kansas City, an examination of
3 cigarette brand switching to reduce health risks that was
4 published in the Annals of Behavioral Medicine in 1999.
5 Do you see that?
6 A. Right.
7 Q. Now, lets look at, lets highlight that top part
8 on the abstract, just so we can get an idea what the abstract
9 is talking about.
10 Doctor Haddock explains this study, explained brand
11 switching to reduce health risks, and a population of young
12 smokers, and N equals 7,998. That means that there were
13 eight thousand people that were examined in this study,
14 right?
15 A. I don't know what was done exactly in this study,
16 you haven't given me a chance to read it. But, they talk
17 about the population, they don't, that statement doesn't say
18 that those people were in the study.
19 Q. Okay.
20 A. That is the population that they started with.
21 Q. Okay, we will continue to look at that. It's
22 just that N equals 7,998 is the usual way in which survey
23 authors refer to the population being studied.
24 A. No, it says very clearly, your interpretation is
0177
 1 wrong. This study states -- or shouldn't I say that, do I
2 have a right to say that?
3 THE COURT: In this, at this point, yes, because you
4 are correcting.
5 Q. Okay.
6 A. This is not the size of the study.
7 Q. Okay, we will keep looking then. Okay, now, page
8 4493.2, the next page of the study.
9 At the top, on the left, the part that is
10 highlighted, Dr. Haddock says that medical professionals
11 sometimes recommend switching to healthier cigarette brands
12 for their patients who do not wish to quit.
13 In the Smoker's Book of Health, for instance, a
14 physician suggests that smokers who do not wish to quit
15 should switch to low yield brands and claims that such brands
16 will supply you with the required level of nicotine while
17 exposing you to less of the most harmful constituents of
18 tobacco smoke.
19 That is something you do, right? Medical
20 professionals recommend switching to low tar brands for those
21 who cannot or will not quit?
22 THE COURT: Okay, let me ask you, are you asking him
23 if he agrees with what you just stated?
24 Q. Yes.
0178
 1 THE COURT: Or the whole --
2 Q. Just with what I quoted.
3 THE COURT: Just with what you quoted.
4 Q. Yes, do you agree with that statement?
5 A. No.
6 Q. Okay.
7 A. Do you want to know why?
8 Q. No, I just want to know --
9 THE COURT: No.
10 A. Okay.
11 Q. Now, if we go down further in the paragraph, all
12 the way to the bottom on the left, it says the purpose of
13 this study is to examine smokers who have switched cigarette
14 brands based on tar and nicotine content, specifically to
15 reduce their health risks. Do you see that?
16 A. Yes.
17 Q. Okay. Then if we go back out, we will look at
18 the methods of the study. It says the participants are all
19 individuals who entered the enlisted ranks of the United
20 State's Air Force from August 1995 to August, 1996. They
21 were screened for participation in this study.
22 A. Right.
23 Q. It says that, do you see that?
24 A. Yes.
0179
 1 Q. And then it says, from a population of 32,144
2 trainees, 24.9%, or 7,998 smoked regularly up to basic
3 military training, correct?
4 A. That's what it says.
5 Q. Okay.

19 MR. WAGNER: Okay, let's look at 449, okay. Let's
20 look at, now, Dr. Haddock explains that cigarette brand
21 switching for health reasons was assessed using a question
22 phrased, in the twelve months prior to basic military
23 training, had you ever switched to a lower tar/nicotine
24 cigarette just to reduce your health risks? Which
0180
 1 participants answered either in the affirmative or the
2 negative.
3 And individuals who reported switching cigarettes for
4 health reasons, were categorized as switchers, while those
5 who had not switched brands were termed non-switchers.
6 Do you see that?
7 A. I see a contradiction.
8 THE COURT: No, no.
9 A. It just, says just. It says just, and then it
10 doesn't say just down there. So that is a contradiction.
11 Just to reduce health risks is what he says up front, and at
12 the bottom he says switching cigarettes for health reasons,
13 he dropped the just, which is inexcusable.
14 Q. All I am trying to do is make sure that we
15 understand what the methodology was.
16 Do you see that Dr. Haddock explained exactly what he
17 did in order to define for himself, in his study, what
18 switches were made?
19
5 MR. WAGNER: Okay, lets go out to the highlighted
6 portion on the right side, and just see if we can get Dr.
7 Haddock's results.
8 Dr. Haddock reports that actually 31.3% of male and
9 32.3% of female smokers reported switching cigarette brands
10 in order to reduce associated health risks of smoking.
11 Do you see that that is Dr. Haddock's description of
12 his results?
13 A. I see that is his description.
14 Q. Okay, we will take the higher, 32.3%.
15 This is 4089, Your Honor, this is a study published
16 by Lynn Kozolowski, and others, of the American Journal for
17 United Medicine, for the year 2000, entitled Advertising
18 Against Light Cigarettes Appears to Change Beliefs and
19 Behaviors.
20 Do you see that Dr. Cohen?
21 A. I see it.
22 Q. Okay. Now, if you go ahead to page 341, you know
23 who Dr. Kozolowski is, correct?
24 A. Yes.
0182
 1 Q. Okay. He is no fan of the tobacco companies, is
2 he?
3 A. I would rather not answer that.
4 MR. TILLERY: I object to that question.
5 MR. WAGNER: I will withdraw that. Okay, the first
6 question asked in that table is, compared to regular
7 cigarettes, would smoking light cigarettes increase, decrease
8 or have no effect on your risk of having health problems.
9 Do you see that?
10 A. I see it.
11 Q. And it says the percent answering a decrease is
12 what is shown, right?
13 A. That is what he says.
14 Q. Okay. And for the United States, what percentage
15 respond that smoking light cigarettes would decrease your
16 risk of having health problems?
17 A. Well, I am trying to make sense out of this
18 table. You have got thirty-two, then parenthesis,
19 twenty-eight, thirty-six.
20 Q. Those are his comparables.
21 A. Yes, it would have to be, plus or minus four, so
22 thirty-two.
23 Q. 32%, you will agree with me thirty-two is a lot
24 less than a hundred?
0183
 1 MR. TILLERY: We stipulate.
2 A. No, it is just about a hundred.

3 MR. WAGNER: There is data from Neil Weinstein and
4 Paul Slovic, from 2001. Are you familiar with either of
5 those doctors?
6 A. Yes.
7 Q. From 2001, and you know that Dr. Weinstein and
8 Dr. Slovic, they serve on consumer protection regarding
9 cigarettes, and a variety of topics, correct?
10 A. Yes.
11 Q. I want you to turn, it is very hard to read, but
12 if you start, the first part of your document contains the
13 survey instrument, and then about half-way through you will
14 start to see the tables that are the results. And I will
15 help you by turning to the page I actually want you to look
16 at, if, may I approach the witness?
17 THE COURT: Sure.
18 Q. Just trying to speed this up.
19 MR. TILLERY: What made page are you on?
20 MR. WAGNER: They weren't paginated, so, you will
21 see, after the survey reports, after the survey instrument,
22 there is the data, and it is question #28 that I wanted to
23 ask Dr. Cohen about.
24 So, I have got it up on the screen, that way you
0185
 1 don't have to fuss with it so much. But the question that
2 Dr. Weinstein and Dr. Slovic were asking was whether or not
3 smoking light cigarettes lowers the risk of health problems.
4 Do you agree or disagree.
5 And then they have got their data broken out into a
6 couple of groups. A-N refers to adult non-smokers, A-S is
7 adult smokers. And then there is teen non-smoker and teen
8 smokers. So I want to focus on that second group, the adult
9 smokers. Light cigarettes are safer.
10 And he says, #2 will tell you the percentage that
11 agree. What percentage is reported by Dr. Slovic and
12 Weinstein as agreeing with the proposition that smoking light
13 cigarettes lowers the risk of health problems?
14 A. Well, I am trying to figure out the columns, A-N
15 --
16 Q. A-N is the adult non-smokers. A-S is the adult
17 smokers, lets focus on adult smokers.
18 A. Well, the number there, you just want me to read
19 off numbers, so I'm going to read off a number and make you
20 happy. It is 16%.
21 Q. 16%. The last one, and then we will break.
22 3412. 3412 is a publication, Nicotine and Tobacco Research,
23 dated 2001. It is a conference summary by selected
24 abstract. And if you go back to page 276, you will see
0186
 1 reference to a study done by Janine Pillitteri, and others.
2 Do you see that, Dr. Cohen?
3 A. So what you are offering me is an abstract, but
4 not a report?
5 THE COURT: No, he is asking if you see --
6 A. I see it.
7 Q. And this is a report of a survey that Miss
8 Pillitteri and others did, a random digit dial telephone
9 survey, that was conducted with a national sample of 2,100
10 daily cigarette smokers: 944 were regular, 816 were light,
11 and 360 were ultra light smokers. Do you see that?
12 A. Yes.
13 Q. Okay. And then Miss Pillitteri says, she says
14 substantial numbers of smokers believed that lights and ultra
15 lights offered health benefits, right?
16 A. Right.
17 Q. She says, of the entire sample, 55% believed that
18 lights and ultra lights give you less tar than regulars,
19 right?
20 A. If you are going to read it, I agree that you are
21 reading correctly.
22 Q. Okay, now lets skip down to whether they are
23 healthier. She reports that 20.5% believed that they are
24 healthier, and that 17% believed that they are safer,
0187
 1 correct? That is what she is reporting as a result of her
2 survey?
3 A. That is the way you have read it. That is not
4 how I would interpret these numbers.
5 Q. Okay, Miss Pillitteri says, I just want to know
6 whether it is correct or incorrect, that 20.5% believe that
7 they are healthier, 17.0% believe that they are safer, and
8 10.5% believe they are less likely to cause lung cancer. Are
9 those the words she used?
10 A. Those are the words she used.
11 Q. Of the surveys we have seen, not a single one
12 says 100% of smokers believe that lights are safer, correct?
13 In any form of the questions that were asked in those
14 surveys?
15 A. None of those numbers is 100%.
16 Q. None of these numbers are even greater than 50%,
17 are they?
18 A. None of these numbers is greater than 40%.
19 Q. Got one 40%.
20 A. Not greater.
21 THE COURT: Not greater. For the record, you are not
22 going to out think him on the subject.
23 Q. I won't even try, that's all I wanted to say.
24 THE COURT: I just want to point that out.
0188
 1 Q. Thank you very much, Your Honor. Okay, you
2 wanted to take a break, Your Honor?
3 THE COURT: Lets take fifteen minutes, and then when
4 we come back we are going to go until we finish.
5 MR. HEPLER: Your Honor, can we be given our witness
6 list for tomorrow?
7 THE COURT: Talk to him and ask him for it.
8 *****
9 (Brief recess was taken.)
10 *****
11 THE COURT: You may proceed.
12 MR. WAGNER: Thank you, Your Honor.
13 Dr. Cohen, you identified in your direct testimony,
14 and I will mention it again on your cross examination, the
15 study conducted by Knowledge Networks. Do you remember that?
16 THE WITNESS: Yes, I do.
17 Q. I just want to discuss that survey with you for a
18 couple minutes. You didn't design this survey?
19 A. No.
20 Q. Do you know who designed this, sir?
21 A. Mr. Dennis, the president, I guess, at Knowlege
22 Networks.
23 Q. Were the Knowlege Networks studies limited to
24 people who purchased cigarettes in Illinois?
0189
 1 A. No.
2 Q. So it was not a study of the class, right?
3 A. I think I just answered that, correct.
4 Q. Okay. And you didn't attempt to break out, in
5 the Knowlege Network study, just the people who purchased in
6 Illinois, did you?
7 A. No.
8 Q. You don't even know that that is possible, do
9 you?
10 A. Well, it would be theoretically possible. I am
11 not sure how many there would be, but the data available, as
12 long as you code where the people are, you could do it.
13 Q. You don't know how many survey responses came
14 from Illinois, do you?
15 A. No.
16 Q. And you don't know whether or not Mr. Dennis and
17 Knowledge Networks attempted to obtain a large sample from
18 Illinois, but were unable to do so, are you aware of that?
19 A. No.
20 Q. And you have not made any attempt to compare the
21 demographics from the Knowledge Networks to the demographics
22 of Illinois or the class, have you?
23 A. I haven't, no.
24 Q. Okay. Is Knowledge Networks specific to
0190
 1 Cambridge Lights in any way?
2 A. No.
3 Q. It is important, is it not, Dr. Cohen, when you
4 are conducting a survey, to eliminate all possible sources of
5 bias?
6 A. It is impossible. Well, bias, okay, I'm sorry.
7 You try to eliminate all sources of bias. Whether you can
8 succeed a hundred percent may not be possible, but you try to
9 do the best you can to eliminate bias, yes.
10 Q. Fair enough. So a good survey would try to
11 eliminate as much bias as possible?
12 A. Yes.
13 Q. Are you familiar with the concept of hindsight
14 bias or recall bias?
15 A. Yes.
16 Q. Okay, what is that concept?
17 A. Well, the way cognizance psychologists talk about
18 it, it is looking at things from the standpoint, looking at
19 the past from the present standpoint, so that your recall of
20 the past is distorted by something that has occurred more
21 recently.
22 Q. Okay. It is hard, in other words, for people to
23 put themselves back in time to exactly what they knew at that
24 certain point in time in the past, and recall things exactly
0191
 1 as they were, right?
2 A. That depends on the topic. It is easier for some
3 topics than for others. But I can recall a lot of things I
4 did a long time ago and may not recall what I did yesterday.
5 Q. The questions in the Knowlege Network survey that
6 you were referring to in your direct testimony, was a set of
7 questions, one through ten. The belief questions. You
8 weren't testifying about the willingness to pay questions?
9 A. That's correct.
10 Q. And the belief questions that are in questions
11 one to ten, those were asking people about the past, right?
12 A. Yes, quite deliberately.
13 Q. And questions that ask about the past are subject
14 to recall bias, right?
15 A. Yes. But it would not be important to eliminate
16 that bias in this study.
17 Q. Now, there was something in this survey called a
18 pre-test and main survey, correct?
19 A. Correct.
20 Q. Why don't you look for a second at question two
21 of the survey, which is at page twelve.
22 A. Yes.
23 Q. That question asked smokers, lets highlight and
24 bring up question number two.
0192
 1 When you first chose to smoke Marlboro Lights, did
2 you think that by lowered tar and nicotine that appeared on
3 the cigarette pack of Marlboro Lights, meant that a Marlboro
4 Lights was lower in tar and nicotine when you smoked it than
5 a Marlboro Reds cigarette?
6 Do you see that language??
7 A. Yes.
8 Q. That's kind of tautological, isn't it?
9 A. No, well, I mean, questions like this --
10 Q. Sir, you said no, that's fine. Do you recall --
11 MR. TILLERY: Well --
12 A. I didn't say anything, if you are giving me a
13 choice --
14 MR. WAGNER: I apologize.
15 A. Most surveys are going to give a choice between
16 yes, no and don't know.
17 Q. Right.
18 A. And the answer to your question is, I don't know,
19 given the question.
20 Q. I don't know wasn't provided as an option in this
21 survey, was it?
22 A. No. When you say is it tautological, you are
23 putting in a situation where I can't supply a meaningful
24 answer.
0193
 1 Q. Do you think the question could be interpreted as
2 tautological?
3 A. I don't know what you mean by tautological. You
4 mean by responding, respondents wouldn't even think
5 tautological, that is a word that respondents aren't familiar
6 with.
7 Q. I am just asking you whether you, as a survey
8 expert, believe that the question could be interpreted as
9 tautological?
10 A. Interpreted by whom?
11 Q. As someone who is familiar with survey
12 methodology, my question to you is, is that question flawed
13 by being somewhat tautological?
14 A. I wouldn't say it is flawed. I don't
15 particularly like the question. I wouldn't, I wouldn't write
16 it exactly that way, for other reasons. But I wouldn't say
17 it is tautological, and I wouldn't say it is biased.
18 Q. There is a transcript of your December 6th
19 deposition. It is not the one that I was at, but if you turn
20 to page fifty-five, let me know when you are there, Dr.
21 Cohen?
22 A. I am almost there.
23 Q. Take your time.
24 A. I am there.
0194
 1 Q. Okay. At line fifteen, the question was, now,
2 looking at the question below that, on the same page,
3 professor, question says, when you first chose to smoke
4 Marlboro Lights, did you think that the words lowered tar and
5 nicotine that appeared on the cigarette pack of Marlboro
6 Lights meant that a Marlboro Lights cigarette was lower in
7 tar and nicotine when you smoked it than a Marlboro Red
8 cigarette?
9 My question to you, as somebody, again, who is
10 familiar with survey methodology is, is that question flawed
11 by virtue of being somewhat tautological? And the next page,
12 at line two, you said, I think the question could be
13 interpreted that way.
14 Is that the question and answer you were asked at
15 your deposition? I'm sorry, let me say that again. Is that
16 the question you were asked and the answer that you gave at
17 that deposition?
18 A. I think the question could be interpreted that
19 way.
20 Q. Okay. Now, is the question that was asked there
21 in question two, that we have still got highlighted on the
22 screen, that question doesn't provide the respondent with all
23 of the information that is on a pack of Marlboro Lights, does
24 it?
0195
 1 A. No.
2 Q. No. Example, it doesn't tell respondent that
3 there are Surgeon General warnings on the pack, and that the
4 warnings, that the warnings that are on those packs are the
5 same warnings that appear on the packs of Marlboro Reds, does
6 it?
7 A. No, you see what the question is there.
8 Q. So the question is not providing complete
9 information about the package of cigarettes, is it?

18 MR. WAGNER: Now, in response to this question, 13.8%
19 of the people responded no, didn't they?
20 MR. TILLERY: Which question are you on now?
21 MR. WAGNER: Same question. If you look at the
22 percent?
23 A. Under the valid percent, 13.8, yes, said no.
24 Q. 13.8% said no, right. Now, if the question is
0196
 1 tautological, why would 13.8% of the respondents say no?
2 A. Do you want me to answer your question? Because
3 it might take me a little while.
4 Q. Well, I appreciate the warning, I withdraw the
5 question.
6 THE COURT: Wait a minute, wait.
7 Q. Can I withdraw the question? He hasn't started
8 an answer.
9 THE COURT: After being forewarned, I will let you
10 withdraw the question.
11 Q. Okay, lets look at the main survey then, Dr.
12 Cohen, which is, begins at page twenty-three, and the
13 questions at page twenty-six.
14 A. Alright.
15 Q. Now, after 13.8% of the people responded, no, the
16 question changes in the main survey, didn't it?
17 A. Your question presumes cause and effect. After
18 13.8 respond no, the question changes.
19 What is correct is that there is a difference in the
20 form of the question between the pre-test and the regular
21 study.
22 Q. Okay, all I asked you --
23 A. No.
24 Q. Is whether or not the question changed.
0197
 1 A. No, in your question you suggested that it was
2 due to the answer in the pre-test, and that I object.
3 Q. I move to strike that.
4 THE COURT: No, see, I will tell you. Now, see I
5 would not have made that sermon, but this doctor understands
6 statistics and this type of charts. And based on his
7 response, I'm going to allow it.
8 MR. WAGNER: Alright, all I am asking you, the next
9 point in time, is that there is a main test, right?
10 A. The main test always follows a pre-test.
11 Q. And in the main test, question two changed,
12 correct?
13 A. Yes, it did.
14 Q. Okay. Now, are you aware of any cognitive
15 feedback that Knowledge Networks received from the pre-test
16 respondents?
17 A. I have no idea what you mean by cognitive
18 feedback.
19 Q. Okay, are you aware of any information that
20 Knowlege Network received, other than the answers to the
21 questions? In other words, did Knowledge Network interview,
22 are you aware whether or not Knowledge Network interviewed or
23 had any feedback other than the answers to the questions in
24 response to the pre-test?
0198
 1 A. No. But I am the wrong person to ask. I didn't
2 design this study.
3 Q. All I am asking is whether you are aware of it.
4 A. No, I didn't design this study.
5 Q. Okay, that's fine. Do you know whether the
6 respondents were taking, in the pre-test, were taking an
7 inordinate amount of time to answer the questions?
8 A. I had no connection with running this study.
9 Q. Okay.
10 A. I don't know the answer to any questions about
11 what happened during the study.
12 Q. Is there anything that appears on the face of the
13 Knowledge Network report that you have reviewed, that
14 indicates people taking the pre-test couldn't understand
15 question two of the pre-test?
16 A. Other than any inference I would make as a survey
17 expert, looking at the form of the question, and thinking
18 that people might not understand it.
19 Q. Okay. Now, question two, question two changed,
20 correct?
21 A. Yes.
22 Q. And you have never actually seen a question in
23 any survey of smoking behavior that is exactly like question
24 two, have you?
0199
 1 A. I have never seen anything like that, exactly
2 like question two, in any other survey.
3 Q. And you don't have any basis to compare it with
4 anything, correct?
5 A. I don't understand.
6 Q. You don't have any external data to compare it
7 with, do you?
8 A. I can't compare these results with the results
9 for any other question. Just like in the chart you gave, all
10 of the numbers you put up, are non-comparable, because all of
11 the questions are different. So the chart you put up also is
12 non-comparable. I can't compare, I can't compare this with
13 anything either.
14 Q. Now, having done a great deal of work for
15 deceptive advertising for the Federal Trade Commission, you
16 testified to, on your direct, isn't it true, Dr. Cohen, they
17 would almost never use a question like this, would they?
18 A. Well, they wouldn't be studying this issue
19 exactly this way. But I would agree with you that they,
20 they would use a different question than this. And I can
21 tell you what they would do, if you want to me to tell you.
22 THE COURT: No, no.
23 Q. No.
24 THE COURT: Let him ask you.
0200
 1 Q. Alright. You understand that the Knowledge
2 Networks survey was intended to elicit information on beliefs
3 and willingness to pay, two different topics, correct?
4 A. In general, yes.
5 Q. Okay. And the first ten questions, the ones that
6 you talked about, were geared towards consumer beliefs, is
7 that correct?
8 A. That's correct.
9 Q. And subsequent questions were the willingness to
10 pay questions, right?
11 A. Correct.
12 Q. And it would be wise, would it not, to make sure
13 that the data that is being generated in these two sets of
14 questions are internally consistent, isn't it?
15 A. I don't follow you. I know what internal
16 consistency means, but I don't really follow your question.
17 Q. Is it important when a survey is conducted to
18 make sure that the data makes rational sense, that it comport
19 with a view of rationality?
20 A. Absolutely not. When you run a survey, you
21 don't impose your view of rationality. You collect data from
22 people, and you have to live with the data they give you.
23 Q. Okay, I understand. Now, when people, when
24 people are surveyed about topics, they should be giving
0201
 1 answers, I want to see if I can get to the consistency point,
2 if somebody says that, I believe that an attribute is
3 positive, are you with me so far?
4 A. Yes.
5 Q. And then you ask them about the willingness to
6 pay for a product?
7 A. Yes.
8 Q. If the answers are being rational, then one would
9 assume that the willingness to pay would go up, correct?
10 A. Well, it depends how the questions are asked.
11 But in general, if an attribute is positive, then people
12 should be willing to pay more for it than for nothing.
13 Q. Right. And if the attributes of the product
14 get, go down, if they are worse, then willingness to pay
15 similarly should go down, right?
16 A. In general, right.
17 Q. Okay. And you didn't do any test in order to
18 determine whether or not the responses to the questions one
19 through ten on belief were internally consistent with the
20 response on the willingness to pay questions, did you?
21 A. No, as we have been over in my testimony, I
22 didn't look at the latter part. That is strictly for the
23 damages part of the case, and I have no involvement in that.
24 Q. Okay. Let's look at question twelve, which is
0202
 1 at page thirty-two. Now, this question asked consumers to
2 suppose they have a choice between two different kinds of
3 Marlboro Lights.
4 Both taste exactly the same, cost the same, and are
5 identical in every way to the Marlboro Lights you smoke,
6 except that these two cigarettes differ in the amount of tar
7 they deliver to your body and how harmful they are. One
8 delivers less tar, less harmful or safer than Marlboro Reds,
9 the other delivers the same amount of tar as Marlboro Reds
10 and is just as harmful as Marlboro Reds.
11 Do you remember being asked that question in your
12 direct testimony?
13 A. I was asked a related question.
14 Q. And then asked the survey respondents, which
15 would you buy. Do you see that?
16 A. Yes.
17 Q. And 7.4% choose the just as harmful, right?
18 A. Yes.
19 Q. Now, that number should been zero, shouldn't it?
20 A. No.
21 Q. Well, didn't you testify on direct that no
22 rational person would choose the just as harmful cigarette if
23 one was laying next to them that was identical in all other
24 respects, but had the characteristics of the safer
0203
 1 attributes?
2 A. Yes. And I stand by that.
3 Q. Okay. Do you think that the response to this
4 question should make economists aghast?
5 A. No.
6 Q. You still have your December 6th deposition,
7 right?
8 A. Yes.
9 Q. At page sixty-four, you were being asked about
10 this question, and you can look at sixty-three to confirm
11 that, I think, but at sixty-four, at line one, the question
12 was asked: To what extent, in your opinion, does the
13 respondents who chose #2, being just as harmful Marlboro
14 Lights responding out of, I'll call it an irrational bias
15 that you have discussed.
16 Your answer was, you know, it is impossible to know
17 what was in each person's mind when they decided to answer a
18 certain way. I am simply giving you an opinion that there is
19 a bias that is likely to get some people to answer no, which
20 would therefore inflate the number of people who answer, very
21 strangely, that they would prefer a cigarette that is just as
22 harmful as Marlboro Reds.
23 That is a very strange response, and you might assume
24 the number should be zero, because it defies rationality for
0204
 1 it to be zero. In fact, the economists would be aghast. You
2 know, this makes no sense. People just being rational should
3 never choose to have less of something good when they can
4 have more of something good. So this doesn't make any sense,
5 the number ought to be zero.
6 Were you asked that question and did you give that
7 answer in December?
8 A. Yes.
9 MR. TILLERY: That is not impeaching, Your Honor.
10 THE COURT: Okay, well, he must have forgotten he
11 used the word that he would be aghast. And, except for that,
12 it is not impeaching. But I'm not sure that it is a material
13 matter that he forgot that economists would be aghast.
14 A. I didn't forget anything.
15 THE COURT: But it is not impeaching.
16 A. You have mis-interpreted completely my answer.
17 MR. WAGNER: I move to strike, Your Honor, there is
18 no question.
19 A. I didn't say what he thinks I said.
20 THE COURT: You came out alright.
21 MR. WAGNER: Why don't you take a look at question
22 fifteen, which is at page thirty-seven.
23 Now, here, the survey ups the ante in a way, because
24 now it says that the respondent should suppose there is
0205
 1 another kind of Marlboro Lights that could be more harmful
2 because had it both increased --
3 THE COURT: Wait, where are you reading?
4 Q. Question fifteen, page thirty-seven, I am back on
5 the survey.
6 THE COURT: Oh, oh, I'm sorry.
7 Q. Okay. Because it had both an increased
8 potential for causing genetically chromosonal damage, and
9 contained higher levels of some of the most toxic substance
10 found in cigarette smoke as compared to a Marlboro Reds
11 cigarette, which of the following would you choose? Remember
12 that both Marlboro Lights cigarettes taste exactly the same
13 and cost exactly the same.
14 And then the choice is back between a Marlboro Lights
15 cigarette that is less harmful or safer, and the Marlboro
16 Lights cigarette that could be more harmful. You say that is
17 a choice that is presented to these survey respondents?
18 A. That is a survey answer choice, it is not the
19 behavioral choice.
20 Q. Okay. And in this survey, the response choice
21 that was given to them, 52% of the respondents chose the more
22 harmful Marlboro Lights, didn't they.
23 A. A total of eleven people chose in the sample, if
24 you percentage it, out of twenty, you get 52%. But it is
0206
 1 eleven people.
2 Q. Are you suggesting that there is something that
3 we ought to be cautious about because of the sample size?
4 A. You bet.
5 Q. Okay. Twenty-one people, or twenty people, I
6 guess, they were weighting the answers, means that one should
7 be very cautious in interpreting those results and taking
8 them too far, right?
9 A. I'm going to have to answer your question with
10 more than a yes or no, to make any sense of your question.
11 Q. Well, I want, just want to know whether or not it
12 would be good practice for someone to be careful when
13 extrapolating results of such a small sample to any larger
14 population?
15 A. I think I said in my deposition I would be
16 concerned about the numbers of people that are as small as
17 ten or eleven, and making a major conclusion based upon ten
18 or eleven.
19 Q. Right. And if the sample size was nine or five,
20 even smaller, you would be even more concerned, wouldn't you?
21 A. Depending on how the question is going to be
22 used. Obviously, you ought to be cautious when you have
23 very small numbers of people.
24 Q. That's all I wanted to know. Okay, with respect
0207
 1 to any survey you would agree with me, Dr. Cohen, that it is
2 important to make sure that the questions are understandable,
3 correct?
4 A. Yes, that is why you do a pre-test.
5 Q. And did you perform any sort of analysis to
6 compare the reading difficulty with the Knowledge Networks
7 questions, with the education level of the panel of
8 respondents?
9 A. No.
10 Q. Did you perform any sensitivity test with respect
11 to the data?
12 A. I have no idea what you mean.
13 Q. Okay. Lets try an example. Did you test these
14 results against responses to questions that might anchor the
15 respondents in other information that appears on the pack,
16 such as Surgeon General warnings? Did you do that?
17 A. No.
18 Q. Okay. Are you familiar with the concept of
19 non-response buys?
20 A. Yes.
21 Q. Okay. Mr. Dennis says that the response rate
22 for his service was in the ballpark of 15%, that is very low,
23 isn't it?
24 A. Compared to what?
0208
 1 Q. Compared to 50%, 60%, 90%?
2 A. Yes. But compared to most surveys it not low.
3 Q. You have no information regarding preferences,
4 beliefs or demographics of the non-respondents, do you?
5 A. No.
6 Q. Okay, so you can't eliminate the possibility of
7 non-response bias when looking at the results of this survey,
8 can you?
9 A. Logically you can't eliminate it.
10 Q. Okay. With respect to the first box on our
11 chart, at the very beginning, about purchase decisions, you
12 have agreed with me that there are many reasons why
13 individuals choose to smoke, right?
14 A. Yes.
15 Q. Okay. And there are many reasons why individuals
16 may also choose to smoke lights, correct?
17 A. Yes.
18 Q. Okay.
19 A. But there is one common reason --
20 Q. Understood. And there are many reasons why
21 individuals may choose the brands Marlboro Lights and
22 Cambridge Lights, correct?
23 A. Many more reasons to choose the brand than to
24 choose a category.
0209
 1 Q. And individuals are subject to different sources
2 of information, correct?
3 A. To a degree. But we live in the same society,
4 and, so, there is more uniformity than there are differences.
5 Q. And individuals have different weights right,
6 that they attribute, that they give to different attributes,
7 right?
8 A. They do, but health is always a positive
9 attribute.
10 Q. And individuals react differently to information
11 they receive from different sources, correct?
12 A. Yes, but it is not totally variable.
13 Q. I understand that, but there is some variation,
14 you will give me that?
15 A. There is variation, yes.
16 Q. And individuals have different perceptions of the
17 risks involved with smoking, will you give me that, there is
18 some variability of that?
19 A. Yes, there is.
20 Q. Okay. And you give individuals their individual
21 variability with respect to perceptions of the risks involved
22 with smoking lights?
23 A. You mean in the abstract or relative?
24 Q. Just individuals have varying levels of the risk
0210
 1 belief with respect to smoking lights?
2 A. Well, there's two ways of measuring risk. One is
3 absolute and the other is relative. I don't know which one
4 you are asking.
5 Q. Relative to full flavor?
6 A. Relative risk, no. I think that people would
7 believe, honestly believe that the relative risk of light
8 cigarettes is less than regular cigarettes.
9 Q. People have different, once they are at the point
10 where they might think it is below, somebody might think it
11 is a tiny bit, somebody might think it is a lot and there are
12 an infinite amount of points within that continuum?
13 A. If what you are asking is some people think the
14 diminution of risk is very small and others think it is
15 bigger, the answer is yes.
16 Q. Okay. And at the end of the day, Dr. Cohen, you
17 don't feel comfortable using the concept of cause, do you?
18 A. Cause is a very difficult concept to use in
19 social sciences. I might use it, I would use it with care,
20 with very great care. So I think your statement is too
21 broad. I might use it if I had the necessary evidence.
22 Q. You believe cause is like an on/off switch,
23 right? In other words, if a question is put to you, did X
24 cause Y, you think that is like an on/off switch, and instead
0211
 1 you prefer to talk about sets of influences out there that
2 influence behavior, correct?
3 A. Most behavior is determined by multiple causes.
4 However, among multiple causes, one cause may be much more
5 important than others.
6 Q. I just want to understand the limits of your
7 opinion. Now, you would not put it that Philip Morris
8 advertising and marketing for light cigarettes caused people
9 to start smoking, would you?
10 A. No, I won't.
11 Q. Okay. And when you think about human behavior,
12 the word cause is sort of like an on/off switch, and you do
13 not believe that is correct, right?
14 A. The way people talk about cause is, makes it
15 sound like an on/off switch. And in the real world, that is
16 not how causation works.
17 Q. Right. In the real world, in your view, there is
18 a set of influences out there, a set of factors that
19 influence behavior. And it is not that one factor either
20 does or does not cause anything in the context of the set of
21 factors, right?
22 A. That's right.
23 Q. Okay.
24 A. Individual elements in isolation seldom cause
0212
 1 something to happen, which is my field of forces approach.
2 Q. Right.
3 A. You have to consider the entire field of forces
4 and the weight attached to each one.
5 Q. And so at the end of the day, if we were going to
6 state your opinion, it would be that Philip Morris's
7 advertising on Marlboro Lights and Cambridge Lights, had a
8 directional influence on people, on people's behavior? That
9 is how you think about it, not in terms of one factor being a
10 cause, right?
11 A. Exactly right, exactly.
12 Q. Okay. Switch gears to another topic. You
13 testified a little bit about the imagery, whiteness, remember
14 that?
15 A. Yes.
16 Q. Okay. Now, and there are other images that are
17 used that you testified to, right?
18 A. Today?
19 Q. Did you testify to anything about whiteness
20 today?
21 A. I don't think so.
22 Q. Is that your only basis for your opinion about
23 imagery or having an effect of lightness or people's safety
24 beliefs, or the descriptors light or low tar? Are you
0213
 1 limiting your opinion to just the whiteness on the box?
2 A. I am limiting my opinion to the box, of course,
3 the whiteness and the words. And whiteness on, I think I
4 talked about the whiteness on the cigarette itself, on the
5 tipping paper.
6 Q. Right. Now, you will agree with me that
7 whiteness is an image that is used in advertising for other
8 products, won't you?
9 A. Yes, but I haven't been talking about
10 advertising.
11 Q. Well, you will agree with me that there is
12 whiteness on the package for other products, will you not?
13 A. Yes.
14 Q. And you will agree with me that there is white,
15 not only on a package of Marlboro Lights, but there is white
16 also on a package of Marlboro Reds, correct?
17 A. There is some white, yes.
18 Q. Okay. And you will agree with me, and you were
19 referring specifically to just the Marlboro Lights in that
20 testimony, right, that was not Cambridge Lights?
21 A. No, I was talking about Marlboro Lights.
22 Q. Okay. Now, the problem with cigarette smoke, I
23 think, as you suggested, is tar, correct? That is what
24 people were concerned with, because of the information
0214
 1 environment, tar?
2 A. In the 1950's and '60's, tar was identified as
3 the harmful ingredient.
4 Q. And people really don't care about tar, other
5 than its impact on their health, right?
6 A. That's right.
7 Q. Okay. And the views that you are expressing in
8 this case is that the lights and the low tar descriptors
9 convey an image or impression of safety or reduced risk, they
10 are not a direct, explicit statement of safer, correct?
11 A. I think I said that they imply safety, that would
12 be my opinion.
13 Q. And then consumers make the leap that low
14 delivery tar and nicotine means lights are safer, is that
15 correct?
16 A. It is not a leap.
17 Q. Well, you testified, I believe, that consumers
18 were connecting the dots all by themselves, correct?
19 A. But I didn't say it was a leap, you said it was a
20 leap.
21 Q. I will go with connecting the dots.
22 A. Okay.
23 Q. Those are the words you used on direct, is that
24 correct?
0215
 1 A. I think I described it more fully as an implied
2 representation.
3 Q. Implied?
4 A. And so people would come and make that inference,
5 yes.
6 Q. Okay. And consumers took away a message of
7 health reassurance, that is what you are applying it to?
8 A. Yes.
9 Q. And the reassurance is all health, health is
10 intertwined with all the deceptions to which you are
11 referring, correct?
12 A. I don't understand your question, I'm sorry.
13 Q. Health, I think you said, is the sole reason,
14 that is the only attribute that makes a difference, right?
15 MR. TILLERY: That is a misstatement of his
16 testimony, I object.
17 THE COURT: Be sustained.
18 MR. WAGNER: Okay, the words light and lower, lowered
19 tar and nicotine, those are words that appear on the packs,
20 right?
21 A. The words light and lowered tar and nicotine,
22 right.
23 Q. Now, lowered tar and nicotine, by the way,
24 doesn't appear on the pack of Cambridge Lights, does it?
0216
 1 A. No.
2 Q. Now, there was also other information regarding
3 the risks of smoking on packs for Marlboro Lights and
4 Cambridge Lights, correct?
5 A. Yes.
6 Q. Okay, and that is the Surgeon General warnings,
7 right?
8 A. Yes.
9 Q. And they appear on every single pack of Marlboro
10 Lights and Cambridge Lights, correct?
11 A. Yes.
12 Q. And the same Surgeon General warning appears on
13 packs of full flavored Marlboro and full flavored Cambridge?
14 A. Yes.
15 Q. There is no differentiation, is there?
16 A. No.
17 Q. So the warning that says, for example, smoking
18 causes lung cancer, appears equally on packs of Marlboro Reds
19 as on Marlboro Lights, right?
20 A. Right.
21 Q. And those are direct, credible, authoritative
22 warnings, right?
23 A. Right.
24 Q. Okay. And you are aware, maybe you are, I don't
0217
 1 know, are you aware that class members have testified they
2 saw and believed these warnings?
3 A. I'm not aware of what they testified to.
4 Q. Okay. So when you, it is then your opinion then,
5 that the words and the whiteness image that appears on the
6 packages for Marlboro Lights and Cambridge Lights detracts
7 from the warnings or conflicts with the warnings, right?
8 A. No.
9 Q. Okay. Can I have his July deposition, please?
10 Here's a copy of the deposition transcript from July
11 12th.
12 MR. TILLERY: Just for the point, this line goes
13 beyond the scope of his direct examination, Your Honor.
14 MR. WAGNER: Oh, no, it doesn't. There was actually
15 a document, Plaintiff's #71, that talked directly about the
16 warnings, and we raised our objection to it.
17 THE COURT: Overruled.
18 MR. TILLERY: What is your page reference?
19 MR. WAGNER: Thirty-nine.
20 MR. WAGNER: Are you there, Dr. Cohen?
21 A. Now I am on page thirty-nine.
22 Q. At line sixteen, this was one I was at.
23 Question: So is it your opinion then, that the words and
24 images that appear on the packages and advertisements for
0218
 1 Marlboro Lights and Cambridge Lights detract from the warning
2 or conflict with the warning? Answer: I think they do
3 conflict with the warning.
4 Were you asked that question and did you give that
5 answer?
6 A. I did say --
7 Q. Did you give that answer at the deposition?
8 A. I did.
9 Q. Okay, so the way in which this impression and
10 this image from these words then work is, they overcome the
11 warning, right?
12 A. No, I think my opinion has evolved.
13 Q. Oh, it is different?
14 A. I have a somewhat different opinion today than I
15 did at my deposition.
16 Q. Okay. You have written, and you will agree with
17 me, will you not, that if it is deceptive to promote, either
18 directly or by implication, a less hazardous cigarette, the
19 FTC is charged with responsibility for curbing this activity,
20 correct?

15 MR. WAGNER: And substantiation, and so now I think
16 it is just the boundaries for what we are talking about with
17 respect to the FTC.
18 You have written, and you will agree with me, will
19 you not, that it is deceptive to promote, either directly or
20 indirectly, a less hazardous cigarette, the FTC is charged
21 with the responsibility of curbing this activity?
22 A. Did he refer to cigarettes in there?
23 Q. Uh-huh.
24 A. Could you read that back again?
0220
 1 Q. Sure. Will you agree with me that if it is
2 deceptive to promote, either directly or by implication, a
3 less hazardous cigarette, unless this is in fact the case,
4 the FTC is charged with the responsibility of curbing this
5 activity?
6 A. Right.
7 Q. Okay. Now, and you have worked with the FTC,
8 right?
9 A. Right, I have.
10 Q. Okay. And you will agree with me that the FTC
11 adopted a standardized machine based protocol by which
12 cigarette tar and nicotine yields are to be tested?
13 A. The Cambridge Filter Method.
14 Q. And you will agree that it is even called the FTC
15 method, correct?
16 A. Some people call it that.
17 Q. Okay. And the FTC has long been aware of lights
18 advertising, including the low tar descriptors and possible
19 implied health implications, correct?
20 A. Yes.
21 Q. Okay. In fact, as far back as 1971, with the
22 very first introduction of Marlboro Lights, the FTC mentioned
23 that in its annual report to congress, are you aware of that?
24 A. Probably.
0221
 1 Q. Okay. And the FTC also has been aware of
2 disparities between FTC test results and actual delivery to
3 humans, correct?
4 A. To a limited degree.
5 Q. Okay.
6 A. And the limited degree --
7 THE COURT: Okay, now, here, do you want to call,
8 further this line of, of facts, you have to call him as your
9 witness. He didn't get into this area.
10 MR. TILLERY: I didn't ask him a single question
11 about FTC.
12 THE COURT: So I will sustain the objection.
13 MR. WAGNER: Let me just ask you this, Dr. Cohen, are
14 you aware of whether or not the FTC itself has looked at the
15 theories and the testimony that you have given today,
16 specifically as you have articulated?
17 In other words, are you aware of whether or not the
18 FTC has examined your statements, your beliefs, your
19 testimony, in connection with lights and low tar marketing
20 and advertising?
21 A. Well, I am sure they haven't read my testimony in
22 this case.
23 Q. Not in this case.
24 A. I don't know what you are asking.
0222
 1 Q. Okay. You have been testifying, and you have
2 published papers about lights and low tar marketing lulling
3 consumers into a false sense of security regarding smoking,
4 correct?
5 A. Sounds right.
6 Q. This is not a new idea about health reassurance,
7 correct?
8 A. Oh, no, it is well accepted.
9 Q. And you have been someone that has advocated
10 this, that has put forth this theory as a reason why lights
11 and low tar marketing is deceptive, right?
12 A. I have a number of people that have, I have
13 certainly said something to that effect.
14 Q. And all I want to know is whether or not you
15 know, whether or not the FTC has specifically considered your
16 views on this subject in connection with this investigation
17 on lights and low tar marketing?
18 A. I have no exclusive knowledge of the FTC's
19 investigation into low tar cigarettes. I didn't know there
20 was an investigation, an FTC investigation of low tar
21 cigarettes going on.
22 THE COURT: With the Court's intervention, is there
23 an FTC investigation going on?
24 Q. Yes.
0223
 1 THE COURT: Going on?
2 Q. And there have been ones in the past and we will
3 do that in our proffer.
4 One second, Your Honor.
5 (Short pause in proceedings.)
6 MR. WAGNER: The end of the day, Dr. Cohen, will you
7 agree with me that even for those who understand the health
8 risks of smoking, many people continue to smoke just because
9 they want to smoke, they enjoy it?
10 A. Many people say that, and I am sure some do.
11 Q. Okay. Now, you have testified today that
12 smokers, if they are being rational, are going to be moving
13 towards a cigarette that promises a health attribute, right?
14 A. I don't think that was my testimony.
15 Q. Okay.
16 A. It's close to that, I mean. It is not exactly
17 on.
18 Q. Okay, but smokers, if they are, if they are faced
19 with a choice of two cigarettes, and the difference is a
20 health attribute, they are going to choose the healthier one,
21 if they are being rational?
22 A. That's right. In other words, two cigarettes
23 where the second has everything the first does, but the
24 second one also has a health attribute, a rational person
0224
 1 would have to choose the one with all of it.
2 Q. And the health attribute that has been portrayed
3 is the tar and nicotine levels, correct?
4 MR. TILLERY: I object to that, it is a
5 mischaracterization of his testimony.
6 A. I didn't talk --
7 THE COURT: Overruled, he can answer that.
8 A. I didn't talk about levels. I said, I didn't
9 talk about tar and nicotine levels.
10 MR. WAGNER: Let me rephrase that. A reduction in
11 tar and nicotine is what would be construed then by people as
12 a health attribute, that is what you are saying?
13 A. Yes, yes. That is different.
14 Q. And the representation has been made of lower tar
15 and nicotine is what conveys to consumers that, in your
16 opinion, that there would be a reduction, and therefore a
17 safety attribute, correct?
18 A. Yes.
19 Q. Okay. And you understand that there are ultra
20 low tar cigarettes on the market, right?
21 A. Yes.
22 Q. But that segment hasn't captured a significant
23 market share, has it?
24 A. Not particularly, no.
0225
 1 Q. Now, presumably your bottom line is that
2 information matters. That if consumers knew something
3 different about these cigarettes, they would have acted
4 differently, correct?
5 A. Well, in general that is true. Information
6 matters. And if people had different knowledge, they would
7 behave somewhat differently. It is hard to disagree with
8 that.
9 Q. But in this case you haven't studied or examined
10 whether smokers who receive the so-called information that is
11 missing about Marlboro Lights and Cambridge Lights, would
12 have changed their smoking behavior in any way, have you?
13 A. What is the information that is missing? I'm not
14 --
15 Q. The information about actual deliveries of tar
16 and nicotine?
17 A. Oh, I haven't done a study to see what would
18 happen if you gave people actual deliveries, see what would
19 happen with their behavior.
20 Q. Okay. With respect to the body of
21 misrepresentation that you have testified to, the
22 descriptors, the white imagery you haven't attempted to
23 quantify or identify the class members who would have smoked
24 their Marlboro Lights or Cambridge Lights differently, but
0226
 1 for those misrepresentations, have you?
2 A. I have not done any quantitative studies in
3 connection with this case.
4 Q. Okay. And you don't have any data or analysis
5 that shows that smokers, if they were to find out the
6 information about light cigarettes not delivering different
7 amounts of tar and nicotine, that they would have quit
8 smoking, do you?
9 A. I have not produced or worked with data as part
10 of a quantitative analysis in this case.
11 Q. So you are not aware of any study which
12 specifically brought the information to people's attention,
13 and then gave them an opportunity, in the natural state of
14 things, to quit or not quit, right?
15 A. That's correct.
16 Q. Okay. You haven't examined, have you, Dr.
17 Kozolowski's study where he informed smokers that lights
18 weren't safer, then looked to see whether quit rates changed,
19 have you?
20 A. Is that the survey --
21 Q. No, that's a different survey.
22 A. Oh, I may or may not. If you could hand it to
23 me, I could tell you.
24 Q. 4492 is a copy of an article published, Addictive
0227
 1 Behaviors, in 2001, by Lynn Kozolowski, and others, citing
2 the persistent effects of the message counter-marketing
3 lights cigarettes, results of a randomized controlled trial.
4 Do you see that?
5 A. Yes.
6 Q. And in the abstract, in the first sentence, Dr.
7 Kozolowski says, in a randomized controlled trial and
8 national sample of smokers of light cigarettes, heard by
9 telephone, a radio message counter-marketing light
10 cigarettes.
11 Do you see that?
12 A. Yes.
13 Q. Okay. Now, if you turn the page, to page 448,
14 you will see a description of the radio message, in the first
15 full paragraph.
16 It says, the key elements involved, a smoker saying
17 (a), that his doctor said lights weren't really light; (b)
18 though lights felt lighter, they were just as bad for the
19 health; (c), lights had hidden vents on the filters; (d), one
20 light equals one regular in tar to the smoker; and (e), the
21 listener should think about quitting smoking.
22 Do you see that?
23 A. I see that.
24 Q. Okay. Now, lets look at the results. What Dr.
0228
 1 Kozolowski did was, he went back after seven months, and
2 reinterviewed his survey respondents, you can see that on the
3 bottom of page forty-eight. After seven months, on average,
4 after the first interview.
5 Do you see that?
6 A. Right.
7 Q. And then he's got a table, and if you turn to
8 page 450, which is 4492.4, Dr. Kozolowski finds that there
9 were no effects on quitting.
10 Do you see that?
11 A. Yes.
12 Q. And on the next page, on 451, he says there were
13 no effects on quitting smoking or attempts to quit smoking.
14 Do you see that?
15 A. Yes.
16 Q. Now, isn't it a fact, Dr. Cohen, that at least
17 with respect to the class representatives, and any other
18 class members who testify, they have all investigated,
19 consulted lawyers, and learned that lights are not safer, and
20 so they are testifying and suing Philip Morris?
21 A. I have no idea what they have done in terms of
22 investigation.
23 Q. Okay, fair enough, doctor. You are aware, isn't
24 it a fact, Dr. Cohen, that not a single one of them stopped
0229
 1 buying Marlboro Lights or Cambridge Lights after learning the
2 facts about which they are complaining in this lawsuit?

5 MR. WAGNER: How about up until four days ago, are
6 you aware that every single class representative, despite
7 having learned the facts about which they want to complain
8 about, having met with lawyers, having sued Philip Morris,
9 having testified, including their deposition, continue to
10 purchase Marlboro Lights and Cambridge Lights cigarettes, up
11 to at least until four days ago?
18 A. No.
19 MR. WAGNER: Thank you. Thank you, doctor, I don't
20 have anything else. Thanks for your patience.
21 ******
22 REDIRECT EXAMINATION
23 BY MR. TILLERY:
24 MR. TILLERY: Were you familiar with the study that
0231
 1 has just been handed to you, before today? This Kozolowski
2 study?
3 THE WITNESS: I believe I have seen it before, yes.
4 Q. Does addiction play a role in these results?
5 A. Oh, sure.
6 Q. Would you explain that to the Court, please?
7 A. Well, I was thinking, when he asked me to read
8 this, this is blaming the victim. You play a short radio
9 message to people one time, and then you blame them if they
10 don't stop smoking. I mean, that is absurd.
11 The conclusion that should be drawn from there is,
12 there was an ineffective effort to get people to stop
13 smoking. And many people, it is not news that people have
14 difficulty quitting smoking. And in all honesty, a single
15 exposure to a radio commercial, that is not going to be
16 sufficient for most people to stop smoking.
17 Q. What do they have to overcome?
18 A. They have got to overcome their physiological and
19 psychological addiction.
20 MR. LOMBARDI: Objection, leading.
21 THE COURT: Yes, that is leading.
22 A. I think this study is a poor study. I can't
23 understand why it was published. And I like Lynn
24 Kozolowski.
0232
 1 This is really a very weak study. A one time
2 exposure to a radio commercial, played over the phone.
3 So you have an unrealistic situation, and then you
4 see if that was sufficient to get people to quit smoking. He
5 didn't need to do the study to know that wouldn't be
6 sufficient to get people to quit smoking.
7 MR. TILLERY: You were asked about ultra low tar
8 cigarettes and their market share?
9 A. Yes.
10 Q. Do you remember that question?
11 A. Yes.
12 Q. Do you have any knowledge about why they have not
13 been able to achieve a market share?
14 A. I think there are several reasons for that. One,
15 people report disliking the taste enormously, and having
16 difficulty extracting the amount of nicotine that they wish
17 to extract from it. So it is really an unsatisfactory
18 product for most people.
19 Q. And you were asked questions about your
20 deposition, and you were asked specific questions about, and
21 I don't know if you recall the point, but your position
22 about, I think he asked you about whether there was a
23 conflict in the warnings?
24 A. Right.
0233
 1 Q. And you, you indicated that you had an evolving
2 opinion?
3 A. Yes.
4 Q. Would you explain that to the Court?
5 A. Absolutely. My initial thought was that the
6 warning on the package would obviously conflict with saying
7 lights and saying lowered tar and nicotine. Because there
8 is the most obvious way to think about it.
9 But the more I thought about it, it is more subtle
10 than that. People see the warning, and they understand that
11 the government is telling them something about cigarettes.
12 But they also see lowered tar and nicotine, and light, and
13 they notice the government hasn't said, you can't do that.
14 So it is quite reasonable for people to conclude that
15 it is, that these cigarettes are in fact better for you. It
16 is almost reverse psychology. But I think it is very clear,
17 and that is why my position has evolved.
18 Let me say it, I think it is a subtle point. A
19 smoker looks at the box, and seeing the warning message, then
20 what does a smoker conclude from that? Cigarettes are
21 harmful or bad, I know that. They cause disease.
22 Now I see light, lowered tar nicotine. The
23 government hasn't said, no, these aren't, take that off. And
24 Philip Morris hasn't taken them off. Therefore, consumers,
0234
 1 smokers are likely to think, okay, then I more, more than
2 ever, should be smoking a lowered tar and nicotine product.
3 So I think what the health warning does on the
4 package is actually re-enforce and intensify the impact. It
5 doesn't conflict entirely, it intensifies the impact of
6 saying lowered tar or nicotine.
7 Q. You were asked questions about the Knowlege
8 Networks survey, and you were asked questions about hindsight
9 bias.
10 Did that study attempt to, as best as possible,
11 reduce hindsight bias?
12 A. I want to -- Yes. Here's what I was trying to
13 say about that study. It was criticized for trying to do
14 something that other studies haven't done. And that is to
15 investigate the between category choice.
16 Now, how are you going to do that. Well, if you had
17 an unlimited budget, you would follow people aroudn, you
18 would wait until somebody made a between category choice, and
19 you would pounce on them and ask all sorts of questions,
20 because it impossible, practically speaking.
21 So what they did here, to their credit, is to put
22 people back in time, mentally, and ask them questions. Now,
23 they are criticized now for engaging, for putting people
24 through hindsight bias, but what was their alternative? I
0235
 1 mean, the fact that they tried to do what needed to be done,
2 to deliver useful data, should not be held against them.
3 Other people haven't done it. I applaud them for doing it.
4 Q. Well, lets talk about the alternative. If you
5 look around the room and you find people who smoked for, lets
6 say more than a year, and they get a call and they are part
7 of a survey, lets say they have been smoking, six months, and
8 they are not asked questions specifically directing them to,
9 as you said, that initial decision about smoking, okay? This
10 particular type, this light cigarette.
11 Explain then, if they answer the question in the
12 context of their day to day behavior, how those results, such
13 as those depicted on the ones we are going to go through in a
14 minute, can not give an accurate picture? May not give an
15 accurate picture?
16 A. As I testified at length this morning, people are
17 going to focus on their most recent cigarette decision, which
18 is a within category decision. And unless you instruct
19 people to think back to the time that you switched down from
20 say Marlboro Red to Marlboro Lights, or you made this between
21 category decision, people are going to, what is going to come
22 to people's minds is the reason they are smoking their
23 current brand.
24 And someone may well choose a Marlboro Lights because
0236
 1 they like the flavor, they like the taste, they like the
2 cachet, within the category of low tar cigarettes.
3 On that same survey -- I am bursting to say
4 something.
5 Q. Well, I want to ask you a question about one
6 thing on this same survey. There are questions about a
7 pre-test?
8 A. Right.
9 Q. What is the significance of a pre-test?
10 A. The best surveys always have a good, solid
11 pre-test. Now, I have, I have to share an important
12 personal observation.
13 I have been involved in so many surveys for the FTC,
14 all sorts of cases, on all sides, and advising people. And I
15 think it is terrible that if someone does a pre-test, and on
16 the basis of the pre-test says ouch, people are just not
17 getting it, I can see that I'm going to revise the
18 questions.
19 Lawyers, and this is not meant to be, but advocate,
20 adversaries will make the point, you changed your question.
21 As if to impune the person who designed the study.
22 And you know what that does, it is very bad from a
23 public policy standpoint, that is my journal. That leads
24 people to not want to run pre-tests, so that they don't get
0237
 1 accused of changing questions between the pre-test and the
2 survey. And that is bad. And I don't fault these people at
3 all for changing questions that they think didn't work.
4 Q. And then turning them over and disclosing them?

22 MR. TILLERY: Yes. And your other point on that
23 survey as well, sir?
24 A. I was asked a number of questions about this
0238
 1 item. Think back to when you started smoking Marlboro
2 Lights, did you think that the words lowered tar and nicotine
3 that appeared on a cigarette package meant that a Marlboro
4 Light cigarette would deliver less tar to your body than a
5 regular cigarette, like Marlboro Red. And there is a number,
6 about, 83%, 83.1%.
7 And I was asked a question about the FTC, do they use
8 this kind of question. The wording of this question is
9 "meant", did you think that the words lowered tar and
10 nicotine "meant". There are a lot of survey respodents who
11 were literal, and they will say no, the words lowered tar and
12 nicotine "mean" lowered tar and nicotine.
13 What I always do, for a study where I want to detect
14 implied representation, and a procedure which all Courts have
15 endorsed, is to ask a question, what did the words
16 "communicate" to you. Because that is the story, what you
17 want to know is what they took away from the words lowered
18 tar and nicotine.
19 And I can tell you, based on years of experience,
20 that this number, 83.1%, would go way up if the question had
21 been reworked to say conveyed or communicated.
22 So this number, I can tell you the direction of bias
23 on this question.
24 Q. Now, you were shown a number of surveys, you
0239
 1 remember those?
2 A. I do.
3 Q. Alright. Now, first of all, do any of those
4 surveys, the numbers that he has put up, in any way change or
5 alter any of your opinions about the health message of light
6 or lowered tar and nicotine being a positive attribute to
7 every single person who bought these cigarettes?
8 A. No.
9 Q. Explain that to the Court, please?
10 A. My opinion is based on extremely well grounded
11 theory. As well grounded as any theory in social science
12 can possibly be. There are different explanations for every
13 one of these numbers, in every study.
14 And what I was being very uncomfortable about, every
15 study I was asked about had different forms of questions.
16 And so it is apples and oranges and pineapple, it is a fruit
17 salad. It is impossible to tell a coherent story about
18 surveys by asking me about surveys that have very, very
19 different approaches. So you really can't come to any
20 systematic conclusion. In fact, when he asked me about my
21 survey --
22 Q. Yes, I wanted you to comment on that
23 specifically.
24 A. That survey asked only about the numbers.
0240
 1 Q. What numbers?
2 A. The tar numbers that appear in advertising. It
3 has got nothing to do with the issues I was testifying about
4 today. The issue I am testifying about today has nothing to
5 do with the tar numbers at all, but the words on the package,
6 lowered tar and nicotine and light, so that study has no
7 bearing on it.
8 Q. And let's look, just for example, take one of his
9 studies that you referenced, the Pillitteri study, and this
10 is an abstract. And if you could, take a look at, to point
11 out, I think you were asked about one question, if they
12 thought they were safer, do you remember that?
13 A. Right.
14 Q. Here, I have got this here, if you want to look
15 at it, doctor, just to shorten time. Do you have it?
16 A. I have got it.
17 Q. Alright. I think he wrote up on the board the
18 reference to what 17% or so thought they were healthier or
19 20%?
20 A. No, well, he may have said 20% believe they are
21 healthier.
22 Q. Go over the rest of them, for the Court.
23 A. Here's what people said, here's what they, here's
24 what they said in response to this line of inquiry.
0241
 1 MR. WAGNER: Your Honor, I am just going to object,
2 this is asked and answered. I did go over all that.
3 THE COURT: I will sustain.
4 A. He didn't --
5 MR. TILLERY: He took, he took one reference point
6 out of this context, and we are pointing out the fact that he
7 didn't state the other ones that mean exactly the same.
8 MR. WAGNER: I believe the record will bear me out, I
9 did go through the entire paragraph. I highlighted the 17%
10 to 20%, but I read every one of those into the record.
11 THE COURT: Well, I don't remember.
12 A. No, I would remember, and I absolutely, a hundred
13 percent --

0242
 1 MR. TILLERY: Okay, go through the rest of these
2 points, please?
3 A. I, first, I apologize. My goal is to get the
4 truth out.
5 THE COURT: No, no
6 MR. LOMBARDI: Move to strike.
7 A. I will read this, I will read this exactly the
8 way this appears.
9 Of the entire sample, 55% believe that lights, ultra
10 lights, give you less tar than regular.
11 Q. Lets stop there.
12 A. Right.
13 Q. How does that comport with some health issue?
14 A. When I was asked a question, I was only asked to
15 consider the specific number who said they are safer. He
16 did not ask me to consider the additional 55% who believe
17 that lights and ultra lights give you less tar than regular.
18 He also didn't ask me to consider the 50.6% who
19 believe they give you less nicotine. He did not ask me to
20 consider the 29.6% who believe they give you fewer toxins.
21 And the 10.5% who believe they are less likely to cause lung
22 cancer.
23 I was not asked to consider any of those.
24 Q. So these questions, there was one that was a
0243
 1 reference to a study of smoker's habits and attitudes. This
2 was a Roper study. Did you remember the part of this about,
3 in terms of the, I think the reference you made specifically,
4 was whether these were overlapping questions.
5 Do you remember, do you have that study in front of
6 you, sir?
7 A. Yes.
8 Q. Do you know whether there were any confidence
9 intervals calculated on that study?
10 A. There don't appear to be on the table I am
11 looking at, for the question low tar cigarettes reduce the
12 health risks in cigarette smoking. There is not a confidence
13 interval there.
14 Q. Alright. What can you discern from that specific
15 study in terms of how it relates to your opinions in this
16 case?
17 A. This is exactly the sort of question I talked
18 about earlier. People are asked whether they agree or
19 disagree with the statement, low tar cigarettes reduce the
20 health risks in cigarette smoking.
21 And I talked this morning about, maybe it was this
22 afternoon, about, in answering that question, respondent has
23 to decide what his or her criterion is to answer yes.
24 Is your criterion, I am certain that low tar
0244
 1 cigarettes reduce the health risk of smoking? If you use the
2 stringent criterion, you are going to answer no.
3 So I talked about these things being data points. So
4 this question is fine to give you a sense of direction.
5 What Roper does for the Tobacco Institute, Roper ran
6 one of these studies using similar questions. And he did it,
7 just to make it clear, this is the ninth study, is what Roper
8 says here.
9 So what he, the value of this data is not that this
10 point estimate is necessarily correct, but that you can see
11 over time, when you ask the same question, how it changes.
12 That is why it makes sense to ask this question, you get a
13 relative comparison over time.
14 But this question has all sorts of problems if you
15 are going to say, well, this number is the real number.
16 Q. Do you remember the reference on the easel to a
17 myriad of different sources of information for class members?
18 A. Yes.
19 Q. Teachers, parents, siblings, neighbors, friends?
20 A. Yes.
21 Q. Do you remember that?
22 A. Yes, I do.
23 Q. I am sure I have left some out. Can you imagine
24 one of those sources of information telling a single class
0245
 1 member of this class, that health isn't a positive attribute
2 in their life?
3 A. No, of course not.
4 Q. Irrespective of the source, irrespective of any
5 point they make in terms of the source of that information,
6 can you imagine a teacher, a brother, a sister, conveying to
7 any class member that health is somehow negative?
8 A. No, it would be absurd. The person would be
9 laughed at to say that health is a negative.
10 MR. WAGNER: Your Honor, I just object to the form of
11 this, can you an imagine, I don't think is a proper form of
12 the question. I'm not sure where he is going.
13 THE COURT: Okay, your reference to the end of the
14 day, is getting close, so I'm going to give it what it is
15 worth.
16 MR. TILLERY: And while we are on the topic of the
17 health attributes, you were asked a question about people in
18 Illinois, from rural areas, urban areas, different ages,
19 different incomes, different educations, beginning smokers,
20 quitting smokers, all of those different types, can you
21 imagine, or can you conjure up in anyway, if you want to look
22 at this from any perspective, Dr. Cohen, that any one of
23 them, irrespective of any of those different features in
24 their background, are going to view health as anything other
0246
 1 than a positive attribute?
2 MR. WAGNER: Same objection.
3 THE COURT: Why?
4 MR. WAGNER: On the form, can you imagine.
5 THE COURT: He changed --
6 MR. WAGNER: Conjure. I will object to conjure.
7 THE COURT: Can you --
8 MR. TILLERY: I will state it again, better, I will
9 do it.
10 THE COURT: Better word than conjure, that would be
11 more precise and less --
12 MR. TILLERY: Do you have an opinion, sir, to a
13 reasonable degree of certainty, within your field of
14 expertise, as to whether or not, irrespective of the social
15 economic background of Illinois smokers, people who bought
16 Cambridge Lights, Marlboro Lights cigarettes, during the
17 class period in the State of Illinois, irrespective of their
18 education, where they live in the state, whether their
19 smoking history is such that they are beginners or quitters,
20 can you imagine whether any of those features would somehow
21 view or consider health as anything other than a positive
22 attribute in their decision making?

7 MR. TILLERY: Okay, within your realm of expertise to
8 a reasonable degree of certainty.
9 MR. WAGNER: Same objection.
10 THE COURT: Overruled.
11 A. I believe I have quite adequate support from the
12 best theory we have in the social science, is that every
13 single person in the State of Illinois, whether on a farm,
14 whether anything, no matter who they are, must regard health,
15 positive health as a positive attribute. It doesn't make
16 any sense for someone to say, now there is something I don't
17 want. Give me poor health, I really want poor health. It
18 doesn't make any sense.
19 Everyone desires to be healthier. That is a
20 positive attribute for everyone. And I don't have to do a
21 survey, I don't have to do a focus group, I don't have to
22 re-analyze someone elses data on that.
23 Q. Thank you, sir.
24 ******
0248
 1 THE COURT: Recross?
2 MR. WAGNER: Your Honor, I know that it is late, we
3 will get you out.
4 THE COURT: We have reached the end of the day, have
5 we?
6 MR. WAGNER: Dr. Cohen, have a nice flight home.
7 THE COURT: Doctor, you will be excused. Gentlemen,
8 can he be released?
9 MR. TILLERY: Yes, Your Honor.
10 THE COURT: Alright, you are released.