K. Michael Cummings, Ph.D, - Testimony Excerpts
13 DIRECT EXAMINATION
14 QUESTIONS BY MR. BRICKMAN:
15 MR. BRICKMAN: May we proceed, your Honor?
16 THE COURT: You may proceed.
17 Q. Could you state your full name, sir?
18 A. Kenneth Michael Cummings.
19 Q. And how old are you, sir?
20 A. 48.
21 Q. I've called you Dr. Cummings, just so we
22 can set the record straight, are you a medical
23 doctor?
24 A. Ph.D.
8
1 Q. Ph.D. What is the general field you work
2 in?
3 A. Cancer prevention and public health.
4 Q. Can you give the Court your educational
5 background, please?
6 A. Sure. I have a masters -- Bachelors Degree
7 in Health Education, actually was trained as a
8 health teacher from Miami Ohio. I went to the
9 University Michigan and received a Masters in Public
10 Health in the area of health education and health
11 behavior and I continued in that program and got my
12 Ph.D. in the same program.
13 Q. Okay. And how does your education in
14 health behavior differ from what a medical doctor's
15 training would be?
16 A. Well, I'm not trained to treat patients.
17 Basically I'm trained to provide health
18 communications, messages to the public on topics
19 related to health. My research, because I have a
20 research degree, my doctoral degree, is basically to
21 study why people behave with regards to their
22 health. The factors that influence them to get
23 vaccinated, to get screened for cancer, to use
24 tobacco products, to quit using tobacco products.
9
1 Q. Let's get right down to why you are here
2 today. What have you been doing for the last twenty
3 years that brings you into this courtroom today?
4 A. I started working at Roswell Park Cancer
5 Institute 22 years ago and basically in their cancer
6 prevention program. The focus of my work at Roswell
7 Park has been on tobacco and tobacco use cessation.
8 I've been running stop smoking clinics for over
9 twenty years. And most of my research, and I have
10 had dozens of grants -- it's a research institute,
11 so you get grants, you publish research, almost all
12 on tobacco. Published over 160 articles on the
13 topic of cancer prevention, again 90 percent of
14 those or more on tobacco.
15 Q. What is your current position now?
16 A. I've been leading the cancer prevention at
17 Roswell Park for the last five years. I'm now
18 chairman of the Department of Health Behavior within
19 the division of cancer prevention and population
20 science at Roswell Park.
21 Q. Okay. And are you also involved in the
22 smoking control program there?
23 A. I'm the Director of the Smoking Control
24 Program at Roswell Park and have been for twenty
10
1 years. I basically created that program.
2 Q. Are you also involved in the Department of
3 Experimental Pathology and Epidemiology?
4 A. Yes, I am. I have been teaching graduate
5 students for over twenty years. I teach epidemiology
6 for graduate students. I have had graduates students
7 do their Ph.D.s under my direction in that program
8 in epidemiology. I teach a course in health behavior
9 and also a course specifically on tobacco control.
10 Q. On what? Tobacco control?
11 A. Yes.
12 Q. What kind of work is done at Roswell Park?
13 A. We are a research institute, but we are
14 also a cancer hospital. In fact we are the oldest
15 free standing cancer hospital in the United States
16 just dedicated to treating cancer and doing research
17 on cancer. We are one of some 40 or so designated
18 comprehensive cancer centers in the United States,
19 designated by the National Cancer Institute. We have
20 lots of grants, like 50 million dollars in grants.
21 He have a staff of about 250 professionals, Ph.D.s
22 and M.D.s and their sole purpose is to be there
23 basically to do research on cancer, treatment,
24 detection, prevention and take care of cancer
11
1 patients to the benefit of those patients.
2 Q. What are your specific duties as Chairman
3 of the Department of Cancer Control?
4 A. Well, it's actually the Department of
5 Health Behavior currently. We actually reorganized.
6 Q. We need an updated CV then.
7 A. Right. Basically leading the prevention
8 research program at Roswell Park. And that involves
9 sort of organizing research for the institute as
10 well as providing service programs. So we deliver a
11 number of services to people in the western New York
12 area in the area of cancer prevention. We run a
13 cancer screening program that I have people oversee,
14 they work under me at my direction. I am also
15 involved in running tobacco control programs, which
16 covers the range of doing prevention programs for
17 kids, training for health professionals and smoking
18 cessation services for smokers.
19 Q. Let's talk just a second about your
20 research. What percentage of your time is spent
21 doing research?
22 A. Quite a bit. About 80 percent.
23 Q. And what are the primary areas that you
24 are now researching and have researched over the
12
1 last twenty years?
2 A. Primary area of my research and many of my
3 research grants currently are on the area of tobacco
4 documents.
5 THE COURT: On what?
6 A. Tobacco documents.
7 Q. Okay.
8 A. I have four current grants on that topic
9 totaling over one million dollars. I actually have
10 two grants from the National Cancer Institute. A
11 grant from the American Legacy Foundation,
12 subcontracts from the Mayo Clinic and the
13 Massachusetts Department of Health that are doing
14 research on tobacco documents as well and we are
15 assisting them in that work.
16 Q. We'll come back to those in a second. Do
17 you also do work in the research of smoking
18 cessation?
19 A. Yes. I have been doing that work for over
20 twenty years. Started out initially studying the
21 smoking behavior of people in my clinic and their
22 ability or inability to quit smoking, as well as
23 I've got involved in some of the largest studies
24 funded by the Federal Government in the area of
13
1 smoking cessation. There's a study funded by the
2 National Cancer Institute called the COMMIT trial.
3 That started in 1986. I was a part of that. There
4 were 11 research centers that were participants in
5 this project from all over North America. I headed
6 up a major section of that program leading the
7 evaluation committee of that trial. That study went
8 on until 1993. And I've subsequently written grants
9 and have gotten grants from the Robert Wood Johnson
10 Foundation. I have a current grant of over a million
11 dollars from the National Cancer Institute that paid
12 me to follow-up the original participants in that
13 trial over 20,000 smokers recruited and followed for
14 thirteen years to look at their ability to quit.
15 Look at the factors that influenced their quitting
16 behavior, their knowledge and attitudes about the
17 risk of smoking.
18 Q. As a result of that have you learned about
19 the factors that make it easier or more difficult
20 for the smoker to quit?
21 A. Yes. That's certainly been a very useful
22 study to help reaffirm and certain hypotheses why
23 people have a tough time quitting. Of course with my
24 clinics I have people come in every month. I treat
14
1 the smoker, I've been running the programs
2 personally myself, and I probably have had over
3 10,000 people come through my clinics. You can do
4 the research then you can deal with the people every
5 day that I see in my programs and you put together a
6 pretty good picture of what's going on. In fact a
7 lot of what I learn from the people in my clinics
8 turns around to be the research questions that I end
9 up going out and test in terms of studies that I do.
10 Q. Have you also researched in the area of
11 tobacco marketing?
12 A. Yes, I have.
13 Q. And tell us what sort of research you have
14 done there?
15 A. Well, my group was the first group,
16 actually it was part of the COMMIT trial we
17 surveyed --
18 Q. You say COMMIT trial, explain that for me
19 first.
20 A. It's an acronym used for the Community
21 Intervention Trial for Smoking Cessation. It's
22 called COMMIT. That trial involved surveying adult
23 smokers over 20,000, actually 22,000 that were
24 originally followed. But it also involved surveying
15
1 teenagers, a group of 9th graders in each one of
2 these 22 communities. In that particular study we
3 asked both the adults and the teenagers what brand
4 cigarettes they smoked. We published the first
5 study really to show in terms of public health
6 literature that the kids' brand choices were
7 narrowed down to really three primary brands. Where
8 adults had a much wider variety of brands that they
9 smoked. And that got me interested in looking at why
10 that was the case and looking at factors that
11 influenced kids' selection of certain brands. And I
12 have written a grant and got a grant from the
13 National Cancer Institute when tobacco documents
14 became available to look very specifically at
15 marketing of tobacco products that was written by
16 the industry. To look at youth markets, to look at
17 marketing to minority groups, as well as to look at
18 marketing of various categories of products like low
19 tar.
20 Q. How long have you been researching in the
21 area of smoking cessation and tobacco marketing?
22 A. Well, I mean reality is any time you are
23 doing smoking cessation work you are doing work on
24 tobacco product marketing.
16
1 Q. That goes back twenty years almost?
2 A. Yes.
3 Q. With regard to your research into the
4 tobacco industry documents how far back does that
5 go?
6 A. Well the tobacco documents that started
7 when the documents became available in mass through
8 the Master settlement agreement. It's been five
9 years. Even though there were some documents that
10 had become available in other court cases in the
11 later part of the 1980s, the Cippollone case, that
12 was really a handful of documents. But sort of the
13 most part that work really has begun in earnest in
14 the last five years. 1997 I think was the first year
15 I got a grant.
16 Q. You mentioned earlier about epidemiology.
17 You said you taught epidemiology, is that correct?
18 A. For twenty years I've been teaching it to
19 our graduate students.
20 Q. Do you yourself use epidemiology in any of
21 your research?
22 A. Absolutely.
23 Q. What do you use it for?
24 A. Well, we basically are looking at the
17
1 causes of cancer or my work since I focus on health
2 behavior and my training is in health behavior.
3 Epidemiology behavior tobacco use that I focus on.
4 It's looking at the factors that influence people to
5 start smoking, influence people to quit smoking,
6 look at barriers that effect people's ability to
7 quit smoking. Interventions, how successful they are
8 in modifying tobacco use behavior. Marketing being
9 one of those factors.
10 Q. What's the overall purpose of studying all
11 this material?
12 A. Well, I work at a cancer center. A third
13 of the patients in our center are there because they
14 have cancer caused by smoking. So it's the number
15 one thing that I can do as Director of a Cancer
16 Center and Prevention Program to focus on
17 discouraging people from tobacco use. So that's why
18 I spend so much time doing it. In fact there's not
19 one single thing that I can think of that would be
20 more effective in reducing cancer in our community,
21 which is what our mission. We have money we get from
22 New York State to fund our cancer center as part of
23 our mission is to prevent cancer. That's why I spent
24 the last twenty years focusing on that topic.
18
1 Q. Is part of your teaching responsibilities
2 do you teach aspiring doctors?
3 A. Yes I do.
4 Q. What it -- what areas do you teach them
5 on?
6 A. Well, I teach them about smoking
7 cessation. I teach them about mainly smoking
8 cessation, how to talk to their patients about
9 tobacco. Most doctors quite frankly are pretty
10 ignorant about a lot of aspects of cigarettes and
11 addiction and so I spend a fair amount of time
12 trying to educate them. In order for them to be
13 successful in counseling they need to be able to
14 give their patients information that will lead them
15 and help them quit smoking.
16 Q. In your teaching of these aspiring doctors
17 do you in fact use any of these tobacco documents
18 that you have come across in the last four or five
19 years?
20 A. Yes I do.
21 Q. And what's the purpose of using them in
22 that scenario?
23 A. Well, the purpose is, the documents have
24 been quite illuminating in terms of educating myself
19
1 and therefore other people who are dealing with
2 smokers about how the products are designed to keep
3 people smoking. The factors that influence their
4 behavior relating to smoking. What smokers believe
5 and know about smoking because these marketing
6 documents are quite extraordinary quite frankly from
7 the industry about why, what factors influence
8 people to smoke and what keeps them smoking. I've
9 used them in that regard.
10 And also educate physicians, it's not one
11 message this is a chronic relapsing behavior you
12 will see with smoking. Most smokers are going to
13 have to quit many times and, you know, they are a
14 cigarette away from being a smoker again. I tell
15 people choose not to smoke for today. I can't tell
16 you what tomorrow is going to bring. Take it a day
17 at a time because we know just like an alcoholic
18 they are a cigarette away. This is frustrating to
19 doctors because they figure, give you the
20 medication, you are cured of the disease, you are
21 done with it, that is not what happens with a
22 smoker.
23 Q. Do you teach about low tar or light
24 cigarettes?
20
1 A. Yes I do.
2 Q. Do you teach about low tar and light
3 cigarettes and their alleged value to doctors as
4 well?
5 A. Absolutely. Low tar filtered cigarettes, I
6 actually have a little slide show that I typically
7 use both for public as well as for physicians that
8 talk about how cigarettes are constructed. You know,
9 talking about how nicotine is controlled in the
10 product. People that are smoking for the nicotine
11 and how the product is designed so that person can
12 get the proper dose of nicotine. It's not a natural
13 product. There are many elements that are added to
14 cigarettes that is reconstituted tobacco, how
15 filters are constructed. Being in up state New York
16 people are very interested to know about the filter,
17 the cellulose acetate filter that was originally
18 patented by Kodak which is just down the road in
19 Rochester, New York. So I talk about how the
20 cigarette filters made of cellulose acetate are
21 painted with titanium dioxide. White shoe polish
22 giving them white color. Things I've learned in the
23 documents about the paper used on, the tipping paper
24 on cigarettes. For example, if you put a piece of
21
1 paper in your mouth seven or eight times, I usually
2 I do this with teachers, they understand this.
3 Kids --
18 Q. Dr. Cummings, have you also lectured to
19 various groups outside the United States in this
20 area?
21 A. Yes I have.
22 Q. And you said you are published in this
23 area, is that correct?
24 A. Extensively.
25
1 Q. And you've published in peer review
2 journals?
3 A. Yes I have.
4 Q. Have you published specifically on the
5 topic of smoking and health, tobacco and marketing
6 and cessation and all the areas you described
7 earlier?
8 A. Yes, I have.
9 Q. Now, you mentioned tobacco company
10 documents and you mentioned you had some grants from
11 various entities. Just very quickly tell us the
12 grants you have and what you are supposed to be
13 doing with those documents?
14 A. Sure. I've just completed a grant from the
15 National Cancer Institute on the issue of tobacco
16 product marketing particularly with the aim of
17 marketing to youth and also minorities. I published
18 an entire issue of a journal based on findings of
19 that work. I have a current grant that has focused
20 on tobacco institute documents. Documents from The
21 Council for Tobacco Research. These documents were
22 turned over uniquely to New York State as part of an
23 agreement between our State Attorney General and the
24 tobacco industry to the New York State archives, who
26
1 turned them over to Roswell Park and we are
2 processing those documents, indexing, cataloging
3 them, putting them online.
4 Q. Are you in charge of that?
5 A. I am in charge of that.
6 Q. Are you also analyzing those documents?
7 A. We are.
8 Q. What other grants have you gotten with
9 regard to tobacco company documents?
10 A. We have a grant from the Massachusetts
11 Department of Public Health, their National Cancer
12 Institute funded study to help them catalog and
13 analyze their documents on cigarette product design,
14 things like additives, low tar cigarettes. We have
15 a grant or subcontract with Mayo Clinic as part of
16 their National Cancer Institute funded study to help
17 them process their documents on the subject of
18 environmental tobacco smoke. These documents are
19 coming from the Gilford Repository which is a
20 repository for tobacco documents that was set up by
21 a British American tobacco located in Gilford
22 England. I just recently received a grant, in fact
23 this last month I got notice of award from the
24 American Legacy Foundation close to one million --
27
1 $800,000 grant to continue our analysis and
2 processing of the tobacco institute documents.
3 Q. How many pages of tobacco company and
4 tobacco company organizations documents do you have?
5 A. Lots. We estimate that the CTR Tobacco
6 Institute Collections turned over to the New York
7 State archives, which are many of them about half of
8 that collection is now at Roswell Park and we are
9 scanning and analyzing that work right now, is 23
10 million pages. In fact this courtroom is only about
11 a quarter of the size of the room that I currently
12 have filled top to bottom with boxes of tobacco
13 documents currently. Our goal is to get them indexed
14 on the internet. I have seven librarians working for
15 me over the course of the last five years. I have
16 some with expertise relating to science. Being in an
17 institute like Roswell Park you can find people who
18 have that background. That's been particularly
19 helpful for some of the technical documents that we
20 come across.
21 Q. Do these documents include the documents
22 of the Philip Morris company?
23 A. Many.
24 Q. Do they include the documents of
28
1 organizations that the Philip Morris Company
2 belonged to?
3 A. Yes. Philip Morris was a participant in
4 Tobacco Institute as well as the Council for Tobacco
5 Research. That's the same organization known as the
6 Tobacco Industry Research Committee which was
7 announced as part of the Frey statement in 1954.
8 Q. As a result of having all these documents
9 here, going through all these documents, do you have
10 an ability as a historian of these documents to put
11 them in context?
12 A. Yes I do.
13 Q. Do you believe you can assist this Court
14 in reviewing certain documents and putting them in
15 context so the Court can understand the significance
16 of some of these documents as it relates to public
17 health?
18 A. Absolutely. In fact I can't think of
19 anybody in the country who would be more qualified
20 on tobacco documents in the public health area,
21 which is why most of the people who are doing work
22 in this area are actually coming to us for
23 assistance in organizing this material. In fact the
24 context area is exactly what we try to do in the
29
1 publications of the documents.
2 Q. In fact have you just recently testified
3 in a case where you were qualified as an expert in
4 reviewing these documents?
5 A. Yes.
6 Q. Have you also worked on Surgeon General
7 reports?
8 A. Yes I have.
9 Q. What have you done?
10 A. Well, I served both as a reviewer, in
11 other words sections of the report have been sent to
12 me, or the entire report in the case of the 2000
13 Surgeon General report for editing, comment, review.
14 And I've also contributed chapters to past Surgeon
15 General reports. The 1989 report I was a
16 contributor, I wrote a chapter. And in the 1994
17 report I was a contributor to that report as well.
18 Q. Have you received awards for the work
19 you've done in your field?
20 A. Many.
21 Q. Just give us one or two.
22 A. Well, I was selected in the year 2000 as
23 the outstanding research scientist at the cancer
24 center. Which is quite a high honor particularly for
30
1 somebody in the prevention area. I think I was the
2 first prevention person ever to receive that award,
3 the Thomas Tomasse Award. Just recently I received
4 the award, the Joe Cullin Award from the American
5 Society of Preventative Oncology. That will
6 actually be given to me in Philadelphia this March
7 for my research on tobacco. That's a national
8 organization. They select one person to give an
9 award to because of their work in the area of
10 tobacco epidemiology and control. I was the
11 recipient this year.
12 Q. Do you also belong to a number of
13 professional associations including the American
14 Society of Preventive Oncology, the Society for
15 Public Health Education, the American Public Health
16 Association, Doctors Ought to Care, Stop Teenagers
17 Addiction to Tobacco, Society for Research on
18 Nicotine and Tobacco. Also on the Board of
19 Directors of the American Lung Association of
20 Western New York, Board of Directors New York State
21 Lung Research Council, Board of Directors Erie
22 County Unit of the American Cancer Society, Co-Chair
23 Evaluation Advisory Task Force for Proposition 99
24 for the California Department of Health and a number
31
1 of others?
2 A. That's right.
3 Q. Okay. As a result of all the work you've
4 done have you been asked to testify in a number of
5 cases?
6 A. Yes, I have.
7 Q. Have you been asked -- were you asked by
8 the various states when they had their litigation
9 with the tobacco companies to testify on behalf of
10 the States?
11 A. Yes, I was.
12 Q. What States asked you to be a witness for
13 them?
14 A. Texas, Florida, Mississippi, Oklahoma,
15 Washington State, Pennsylvania, Connecticut, those
16 are a list off the top of my head. I think I
17 provided a list of the deposition and trial
18 testimony as part of my preparation of a witness
19 statement in this case.
20 Q. All right. What I would like to do is
21 shift gears a little and talk about sort of the
22 hands-on role you have in the smoking cessation
23 programs at Roswell. Could you tell us what you
24 yourself do there and how you come in contact with
32
1 people?
2 A. Well, I lead the program. So people --
3 it's a class, three sessions, used to be five. I
4 modified it over the years, but I created the
5 program. People would call our institution when I
6 first arrived at Roswell Park looking for programs
7 to help them quit smoking. And so creating a need
8 for that I actually helped create a program.
9 Actually had a student who was working with me for a
10 semester back in 1981 and said we ought to develop a
11 class and she went out and pulled together some
12 material, I had some material from my training at
13 Michigan from Don Powell who created a program
14 called Smoke Stopper's. He was a psychologist who
15 was a graduate student when I was at Michigan. I
16 used that material and started running a program. I
17 didn't know how successful it would be. We did it
18 first with our employees at Roswell Park who are
19 smokers and their family members. They liked it,
20 word of mouth got out. After a short while we became
21 the most widely recognized stop smoking facility in
22 the Western New York area and I have been running
23 the programs every month, virtually every month,
24 sometimes more than once a month, for the last, you
33
1 know, 21 years at this point.
2 Q. As a result of this you talked to smokers
3 obviously, don't you?
4 A. Every day. I get smokers who call me up on
5 advice on how to quit. Obviously.
6 Q. And do you use this, these conversations
7 you have with these people as part of your
8 background as to what smokers are thinking, what
9 problems they are undergoing in dealing with their
10 smoking?
11 A. I ask them very explicitly what they are
12 thinking. It's very useful for doing more systematic
13 research to gauge what people know and believe about
14 the risks of smoking, about the type of cigarettes
15 they are smoking. My job is to provide new
16 information. Smokers have heard at this point
17 smoking causes lung cancer. Do they believe it?
18 Well, generally they believe it. Do they think it
19 will happen to them? Not really. They think they
20 will be able to quit before they have that problem.
21 They really have very little knowledge in my opinion
22 about the cigarettes that they smoke. They have no
23 idea how they are constructed, very little knowledge
24 of dilution holes and filters, a variety of other
34
1 things about cigarettes. I spend time telling this
2 to people because that's my job.
20 Q. (By Mr. Brickman) Let me ask this basic
21 question. Have you talked to various people over
22 throughout this United States?
23 A. Yes, I have.
24 Q. Talked to them about smoking?
35
1 A. Yes, I have.
2 Q. Smoking problems?
3 A. (Nodded).
4 Q. You've got to say yes.
5 A. The answer is yes.
6 Q. Smoking cessation?
7 A. Yes.
8 Q. Smoking prevention?
9 A. Yes.
10 Q. People throughout this country have the
11 same problems, same issues with smoking wherever
12 they are?
23 A. The smokers that I've spoken with; the
24 studies that I've done with smokers all over the
36
1 United States show they are just the same as the
2 ones in Buffalo, New York, the ones I talk to every
3 month that come into my clinic.
4 MR. BRICKMAN: Your Honor, as I understand
5 you already qualified him as an expert and we can go
6 ahead and ask him questions?
7 THE COURT: Some time ago.
8 MR. BRICKMAN: I appreciate your patience
9 with me.
10 Q. Let's have a little history lesson if we
11 could. You know what the tar derby is or was?
12 THE COURT: I didn't hear the question.
13 Q. Do you know what the tar derby was?
14 A. Yes.
15 Q. Tell the Court what it was and how it came
16 about?
17 A. Well, the tar derby basically started in
18 the early 1950s as a result of the early studies
19 linking cigarettes smoking to cancer. And the
20 studies that emanated from those early epidemiologic
21 studies which involved extracting tar from the
22 cigarettes, particulate matter from the cigarettes
23 and painting it on the backs of animals, some of
24 these studies were done at my institution, at
37
1 Roswell Park, and showing those animals developed
2 cancer. That created a concern about stuff in
3 cigarettes, namely the tar, being harmful, being the
4 cause of cancer. And basically the tar derby ended
5 up being a competition among the companies trying to
6 address that namely by the introduction of filtered
7 cigarettes, and advertising and marketing of
8 filtered cigarettes in the 1950s.
9 Q. Well, what was, I assume this was a race,
10 what was the race over?
11 A. To sell cigarettes.
12 Q. What were they trying to do with the tar
13 derby? What were they claiming at this point?
21 Q. Just to put it in perspective, what were
22 they racing over? What issue was the key driving
23 force in the tar derby?
24 A. To reduce the tar. Tar was the villain.
38
1 Take the tar out, our products are better, they are
2 safer, and that's what the race was about. Our
3 cigarettes are going to be better. Our filtered
4 cigarettes are more efficient. They are taking the
5 tar out and that was reassuring to smokers to keep
6 them smoking.
7 Q. Okay. Starting at at least this point in
8 time.
22 Q. Dr. Cummings, have you looked at consumer
23 perceptions with regard to cigarette marketing over
24 time?
39
1 A. Yes.
2 Q. And have you done that in reading various
3 articles published in the scientific literature?
4 A. That's one source.
5 Q. Have you also looked at tobacco company
6 documents to see what consumer perception was with
7 regards to various issues over time?
8 A. Yes, I have. That's another source.
9 Q. And did you learn tobacco companies
10 including Philip Morris would conduct regular
11 surveys and focus groups to see what people were
12 thinking at the time?
13 A. Yes, I have.
14 Q. And have you looked at those surveys and
15 focus groups as part of your ongoing research?
16 A. Yes, I have.
17 Q. Okay. Now, let's go back again to the tar
18 derby. What did you learn based on your research
19 that consumers were perceiving about what
20 constituent was the villain as you described it in
21 cigarettes?
17 Q. Okay. What was the consumer perception
18 about the bad constituent?
19 A. Tar was bad. Tar and nicotine both.
20 Q. What did you learn was the message that
21 was being conveyed then to the consumer with regard
22 to the efforts by these companies to reduce that
23 tar?
24 MR. LOMBARDI: Object to the form,
41
1 foundation again.
2 THE COURT: Overruled.
3 Q. They were providing consumers with a
4 response to their concern about the tar and nicotine
5 by saying these filters will reduce the tar and
6 nicotine; take the bad stuff out. That's what the
7 filter is, we're going to take things out.
8 Q. As a result of that were consumers
9 equating lowering the tar with making a cigarette
10 safer?
17 Q. What -- based on research, looking at all
18 the documents, all the factors we've discussed, do
19 you have an idea based upon this as to what
20 consumers were perceiving when they heard that tar
21 was being lowered?
22 A. Yes.
23 Q. What is that opinion?
8 Q. Please, what was that perception about
9 lowering tar?
10 A. That it would make the -- it would be
11 better for you, be safer. Less dangerous. In fact
12 there are studies I'm thinking specifically of the
13 Elmo Roper Polls that were done by Philip Morris
14 Tobacco Company. There was a Roper Poll in 1953,
15 another one in '59 specifically talking about we are
16 going to win more nonsmokers with mildness because
17 of the filter. People perceived the harshness,
18 irritability, which they link to health, those are
19 health connotations and the filters were solving the
20 problems. In fact the sales that I tracked look at
21 brands all introduced in the '50s, and they are all
22 filtered brands and they are selling more and more
23 filters. Less than two percent smoking filter
24 cigarettes in 1953, by 1959 you are seeing close to
43
1 50 percent of people smoking a filtered cigarette.
2 That's a tremendous behavioral change that occurred
3 in this population.
4 Q. Let's move forward.
24 Q. I really want to jump a little bit. Let's
46
1 go to the age of the low tar cigarettes, light
2 cigarettes. Have you worked with smokers who are
3 trying to quit cigarettes and who have over the
4 course of their smoking switched to these supposedly
5 low tar light cigarettes?
6 A. Yes. Lots of people.
7 Q. Have you in fact talked to these people
8 about why they switched?
9 A. Yes.
10 Q. Have you also looked at various surveys
11 over time that were conducted both external to the
12 tobacco companies and internal to Philip Morris as
13 to the reasons these smokers switched?
14 A. Yes, I have.
15 Q. Based upon your research, your
16 observations, your discussions do you have an
17 opinion as to the reason people switched to these
18 allegedly low tar light cigarettes?
7 A. Consumers switched to these products
8 because they think they are safer. They think they
9 are getting less tar, less tar means safer. Less
10 likely to get sick as a result of using the product.
11 Q. Now, you mentioned earlier in your
12 testimony that some consumers say they are milder,
13 not as harsh. Does that equate in anyway in your
14 opinion based on your research to their thinking as
15 to whether these products are safer?
18 Q. Now, we talked about people switching. Is
19 that also true for people who first started out
20 smoking light cigarettes based on your own research?
21 A. Yes.
22 Q. Okay. And I was actually asking you
23 another question, I don't know if you answered it or
24 not. We were talking about the fact that some
49
1 consumers used other language besides they think
2 it's safer. You mentioned milder, less harsh,
3 easier on your throat.
4 A. Smooth.
5 Q. Have you come to learn what that means to
6 consumers?
7 A. It means that it's safer. It's basically
8 those are health connotations that they used. Words
9 like mild, smooth, less harsh, less irritating, and
10 in fact some of the documents that I've read from
11 the companies actually use those terms exactly when
12 they talk about better for you, safer. So this is
13 exactly --.
13 Q. Doctor, let me give you this caveat. I
14 don't want to hear about any other tobacco company,
15 documents from any other tobacco companies. I want
16 all your opinions based upon documents of the
17 defendant in this case, Philip Morris, or the
18 organizations in which they participated. Fair
19 enough?
20 A. Fair enough. In fact I was speaking to
21 Philip Morris documents particularly in the last
22 when I made that comment just so it's clear.
23 Q. Have you always held the opinion that
24 virtually all smokers have switched or smoked light
51
1 cigarettes for the issue of it being safer?
2 A. No.
3 Q. What made you change your mind?
4 A. Well, basically I changed my mind because
5 I used to think that smoking a low tar cigarette was
6 safer. And as I learned that that wasn't the case.
7 Certainly I began to transfer what I was learning
8 and sharing that with smokers in my clinic.
9 Q. Let's talk specifically about this company
10 and their cigarettes. Do you know when they first
11 began selling Marlboro Lights?
12 A. Yes I do.
13 Q. Way was that?
14 A. 1971. I believe late 1971.
15 Q. Are you aware of whether shortly
16 thereafter they began conducting surveys and focus
17 groups on consumer perceptions specifically with
18 regard to that cigarette Marlboro Light?
19 A. Yes.
20 Q. And did they also do focus and survey
21 groups to determine consumer perceptions about
22 lights in general?
23 A. Many. Yes.
24 Q. Did they also do consumer surveys and
52
1 focus groups to determine consumer perception of the
2 term lower tar or lower tar and nicotine?
3 A. Yes, they did.
4 Q. And have you reviewed those documents?
5 A. Yes, I have.
6 Q. And do you rely upon those documents for
7 the opinions you are going to be giving here today?
8 A. Yes I do.
9 MR. BRICKMAN: Your Honor, at this time we
10 would mark as Exhibit No. 30.
11 THE COURT: We already have a 30.
12 MR. BRICKMAN: I apologize. Exhibit 31. An
13 exhibit dated May 1st, 1976. Do we have copies?
11 Q. Could we flash up CKT014957, which is the
12 cover page. And could you then go to 14958-RT? Dr.
13 Cummings, tell us first of all are you familiar with
14 this document?
15 A. Yes, I am.
16 Q. Just tell us briefly what this document
17 is?
18 A. This is basically a summary of a survey
19 that was done by the Roper organization, which is a
20 survey organization that Philip Morris hired. It is
21 basically, the title speaks to the topic of the
22 report, a "Study of Smoker's Habits and Attitudes
23 with Special Emphasis on Low Tar Cigarettes."
24 MR. BRICKMAN: Can you pull that title up
57
1 for me please?
2 Q. Is that the title?
3 A. That's the title.
4 Q. And this was prepared as I understand for
5 the Philip Morris Company?
6 A. That's right.
7 Q. You referenced an organization known as
8 the Roper organization. Do you come across their
9 name on a regular basis within the Philip Morris
10 documents that you reviewed?
11 A. Yes, I did.
12 Q. Do they do you surveys for Philip Morris
13 Company on a regular basis?
14 A. Yes, they did.
15 Q. Let's go to CKT014961-01. That is page
16 three of this document. And do you see the
17 highlighted portion?
18 A. Yes.
19 Q. And can we blow that up a little please?
20 And is this in the summary of major findings this
21 section?
22 A. Yes, it is.
23 Q. And could you read that into the record
24 for us please?
58
1 A. "Even among those who have not switched to
2 a low-tar brand, there is fairly high disposition
3 among smokers to consider switching to one. This is
4 probably attributable to the continuing concern over
5 smoking and health, and this study shows that the
6 smoking public is convinced that to the extent any
7 brands are better for health, it is the low-tar
8 brands that are."
9 MR. BRICKMAN: Can we now go to a 014977-01
10 that's page 19 of that same report. Can you blow up
11 that highlighted section please?
12 Q. And again this is what Philip Morris was
13 being told, correct?
14 A. That's right.
15 Q. Could you read that for us, please?
16 A. Under the title Brands Thought Better for
17 Health. "The low tar brands have cornered opinion
18 that to the extent any brands are better for your
19 health, they are."
20 MR. BRICKMAN: Let's go to one more, page
21 twenty, 014978-01.
22 Q. What are they saying is the reason people
23 think they are better for your health?
24 A. It says, "Furthermore, it is the lower tar
59
1 content of these brands that makes people say they
2 are better for health. When asked why the brands
3 they named were better for their health, answers
4 overwhelmingly were concerned with lower tar
5 content." And then they list a table before.
6 Q. Does that comport with your own research
7 as to why smokers were choosing low tar cigarettes?
9 Q. Let me show you Exhibit No. 29 in this
10 case. Have you seen that before?
11 A. Yes.
12 Q. What is that?
13 A. This is a pack of Marlboro Light
14 cigarettes.
15 Q. What writing is under the Marlboro Light?
16 A. Lower tar and nicotine.
17 Q. Is there anything different about that
18 lower tar and nicotine than the lower tar they are
19 referencing in this report that you've just talked
20 about?
21 A. No.
22 Q. Throughout the documents that you looked
23 at at Philip Morris did they constantly talk about
24 the phrase lower tar and what it meant?
61
13 A. The answer is, yes, there were lots of
14 documents that talked about lower tar.
15 Q. And did they apply to cigarettes like
16 Marlboro Lights?
17 A. They applied specifically to Marlboro
18 Lights. In fact many of the documents talk
19 specifically about Marlboro Lights, like this
20 document where they surveyed Marlboro Lights
21 smokers. This is a study of over 1,000 smokers
22 representedly selected from the United States.
23 Q. Now, I don't want to go through all the
24 surveys. Based on your review of documents did they
62
1 do a number of surveys over time on this same issue?
2 A. Yes, they did.
3 Q. Did those surveys come up with the same
4 basic conclusions that are in this survey?
17 Q. Let me ask you this, doctor, there are
18 quite a few surveys as I understand?
19 A. Many.
20 Q. I would like to show you just a couple and
21 would you tell me, tell the Court rather, the Court
22 needs to know, whether these surveys are
23 representative of the surveys you reviewed within
24 the Philip Morris Company?
63
1 A. Yes, I'd be happy to do that.
2 Q. Is this one representative of a number of
3 other surveys that are within Philip Morris Company
4 documents?
11 Q. Let's look at an exhibit dated March 1978.
12 We'll pass that out, please. Doctor, for the record
13 what was the date of that last document?
14 A. May, 1976.
21 MR. BRICKMAN: This is -- could you put up
22 CKT048284C. Let's go to the next page, which is
23 285-RT.
24 Q. Doctor, you familiar with this document?
64
1 Could you blow it up so we can get it a little
2 clearer? There we go. Are you familiar with this
3 document?
4 A. Yes, I am.
5 Q. Have you previously reviewed it?
6 A. Yes, I have.
7 Q. And could you tell us just in general
8 terms what it is?
9 A. This is a report of a study that Philip
10 Morris did, one of their scientists, Frank Ryan,
11 called exit brand cigarettes. A study of
12 ex-smokers. They were looking at the last brand of
13 cigarettes of people who quit smoking had smoked to
14 see whether there were differences in quitting
15 behavior between those smoking different types of
16 cigarettes or different brands like low tar versus
17 full flavored cigarettes.
18 Q. Does this document also tell you about
19 consumer perception about light cigarettes or low
20 tar cigarettes?
21 A. Yes. It speaks specifically to that point.
22 MR. BRICKMAN: Okay. Let's go please to
23 CKT048288-01. And that is page three of this report.
24 Q. Do you see the highlighted portion on the
65
1 screen?
2 A. Yes.
3 Q. Would you read that please?
4 A. Sure. "It is likely, for example, that the
5 popular belief that low tar cigarettes are healthier
6 than full flavored cigarettes means that people who
7 are concerned about their health will be more likely
8 to switch to low tar products than people who are
9 not concerned about their health."
10 Q. Does this again comport with the last
11 document as to consumer perception about low tar
12 cigarettes?
22 Q. Does this document in fact have some
23 examples of some people who were smoking Marlboro
24 Lights as well?
66
1 A. Yes.
2 Q. Okay. Again were there other surveys as
3 well, with the same conclusions?
4 A. Yes, there were.
19 Q. Now we talked about the phrase lower tar,
20 what I want to now talk about is the phrase lights.
21 Have you done research and looked at documents and
22 talked to smokers as to their perception of the word
23 lights?
24 A. Yes, I have.
67
1 Q. And what is your understanding of how
2 smokers interpret the words lights based on your
3 work in the field?
13 Q. Go ahead.
14 A. The use of the term lights or how
15 consumers perceive it specifically with regards to
16 Marlboro Lights is that it means less tar and safer
17 because people view less tar equals better for you
18 less likely to cause harm. Less of the bad stuff
19 that you are going to get specifically tar and
20 nicotine.
21 Q. Is that also true for Cambridge Lights who
22 use lights in their title or name?
23 A. Yes, it is.
8 Q. Dr. Cummings, are you familiar with this
9 document?
10 A. Yes, I am.
11 Q. Could you briefly describe what this
12 document is?
13 A. This is a document from a company that was
14 doing focus groups for Philip Morris and it's
15 actually focus groups of people who were smoking
16 light cigarettes. And it's a summary of two groups.
17 The discussion that was held on those two focus
18 groups.
13 MR. BRICKMAN: It has bates number
14 1004888480.
15 Q. Can you see the highlighted portion there?
16 A. Yes.
17 Q. Now we talked earlier about what low tar
18 is perceived as. Could you read that for us about
19 lights?
20 A. "Those who are currently smoking lights,
21 do so because 'they are better for you' than full
22 flavored cigarettes."
23 MR. BRICKMAN: That's fine for now. We may
24 have some other issues with this document.
72
1 Q. Is that again representative of the other
2 documents that you have seen in the Philip Morris
3 group that deal with how they interpret the word
4 lights?
19 Q. Is this a Philip Morris document?
20 A. This was prepared by a company Wells Rich
21 Green, Inc.
22 Q. Who got this document?
23 A. It says for Philip Morris, it's dated
24 August 28th, 1978. Benson and Hedges, it was about
73
1 the Benson and Hedges brand. In fact the light
2 smokers who were interviewed, very few were smoking
3 Benson and Hedges Light, they were smoking other
4 lights.
21 Q. Now obviously these are older documents
22 going back to the 70s, correct?
23 A. That's right.
24 Q. Again has that understanding of lights as
77
1 reflected in the documents internal to Philip Morris
2 continued over time?
3 A. Yes, they have.
4 Q. To that end, let's look at a document
5 dated March 31, 1998.
12 Q. Does that perception about lights and
13 lower tar continue to this day insofar as what
14 Philip Morris understands consumers perceive?
24 A. Yes. That conclusion remains today for
82
1 Philip Morris including in testimony I've read from
2 some of their executives who acknowledged that their
3 conclusions and as well as their internal documents
4 and most directly in terms of Philip Morris'
5 consumers of Marlboro Lights cigarettes they have
6 that perception.
13 Q. What testimony are you referencing?
14 A. I read the testimony of Mr. James Morgan,
15 Ross Millhiser, Joseph Cullman, these were the
16 basically presidents of the company. I read the
17 testimony of Nancy Lund and Jeanne Bonhomme who's
18 been involved in the marketing of Marlboro Lights
19 cigarettes, and Jeanne Bonhomme and Nancy Lund where
20 they believed that low tar numbers they would get
21 low tar when you don't. And Morgan, Millhiser and
22 Cullman all said low tar cigarettes specifically
23 Marlboro Light cigarettes the perception was they
24 were safer.
83
8 Q. Let's shift gears for a minute. You talked
9 about this consumer perception of lights and lower
10 tar. And we have heard continually throughout the
11 trial about these lawyers for tobacco companies that
12 they never said their cigarettes were safer. And
13 have you heard that when you've been cross-examined
14 on previous occasions?
15 A. Yes.
16 Q. Did Philip Morris, again based on your
17 research, your looking at marketing issues, your
18 analyzing their documents, their corporate
19 documents, reading the depositions of their
20 executives, did they in fact market cigarettes such
21 as Marlboro Lights and Cambridge Lights as in fact
22 safer?
8 A. Yes, they did.
9 Q. Tell us what you have seen to that effect?
10 A. Well, basically I've seen, you know, many
11 documents that talk about filtered cigarettes are
12 safer. The testimony of the executives that I just
13 mentioned talking about the perception, they knew
14 the perception the consumers had was that it was
15 safer. I've seen actually representations that were
16 made by some of their scientists to members of the
17 public health community that low tar cigarettes are
18 safer.
24 Q. Let me ask you, are you familiar with the
85
1 deposition, the sworn testimony of Ross Millhiser in
2 this case?
3 A. Yes.
4 Q. Do you know he who Mr. Millhiser was?
5 A. Yes, I do.
6 Q. Can you tell us briefly what is your
7 understanding?
8 A. Senior executive and actually president of
9 the company in I believe the 1970, mid 1970s. The
10 time that Marlboro Lights was actually taking off he
11 was president of the company.
12 Q. Does he discuss whether in fact Philip
13 Morris was marketing his cigarettes as hopefully
14 safer for their consumers?
15 A. Yes.
16 MR. BRICKMAN: Can we play that clip?
17 Q. Let me ask if this is what you are
18 referencing?
19 " Q. The perception also was that as you
20 described that the supposed villain was tar, that
21 people were perceiving if you could market a low tar
22 cigarette it would be hopefully better for you,
23 correct?
24 A. The answer is yes.
86
1 Q. And the low tar cigarette, as we just
2 discussed, was marketed because it was perceived to
3 be hopefully safer, correct?
4 A. Hopefully. Hopefully."
5 Q. Is that in fact one of the clips you are
6 referencing?
7 A. Yes, it is.
8 Q. Did you also see the testimony of a Mr.
9 Cullman?
10 A. Yes, I did.
11 Q. Do you know what his position was with
12 Philip Morris?
13 A. He was president of Philip Morris and CEO
14 on the Board of Directors. I believe he still has
15 an office on the 10th floor of their 100 Park Avenue
16 building New York City.
17 Q. Did he also give sworn testimony about
18 marketing their cigarettes as safer?
19 A. Yes, he did.
20 MR. BRICKMAN: Can we play Cullman one,
21 please?
22 "Q. This one could be a little difficult to
23 read, you have to bear with me, but as we keep
24 getting at implicit in your ads for Philip Morris,
87
1 was the assumption that less tar and less nicotine
2 represented a safer cigarette, correct?
3 A. Yes."
4 Q. Did you rely upon that as well?
5 A. Yes, I did.
16 Q. Are there also documents that reflect the
17 fact that implicit in their ads was the assumption
18 consumers were perceiving this as safer?
19 A. Yes, there are.
20 MR. BRICKMAN: If we could mark as Exhibit
21 35 a document June 1, 1980, could you hand that out
22 please?
11 Q. Have you seen this document before?
12 A. Yes, I have.
89
1 Q. I'm going to show you the cover, is this
2 in fact the document we just referenced?
3 A. Yes, it is.
4 Q. And does it have on it hand written June
5 80th?
6 A. That's right.
7 Q. Let's go to page seven. And it is in fact
8 very difficult to read, the very bottom of the page.
9 And the one line on, this is the only page that has
10 that line across the bottom. Nevertheless, can you
11 read the very bottom of that page seven?
12 A. Sure. This is a document by William Dunn.
13 THE COURT: It's S. Dunn. If you look, not
14 William, just to correct you.
15 A. "In fact implicit in the tobacco
16 industry's promotion of the low delivery cigarettes
17 it is the assumption that less tar and less nicotine
18 represents a quote safer cigarette."
19 Q. This again is a Philip Morris document?
20 A. That's correct.
11 CONTINUED DIRECT EXAMINATION
12 BY MR. BRICKMAN:
13 Q. Dr. Cummings, let's talk a little bit
14 about quitting and people quitting smoking, if we
15 could. And again, I don't want to belabor the point,
16 but just for foundation purposes, you've worked in the
17 field for a long time?
18 A. Yes, I have.
19 Q. And you've dealt with people who are
20 trying to quit and who have quit smoking, correct?
21 A. For decades.
22 Q. And you have trained others in this
23 field?
24 A. Yes, I have.
5
1 Q. Researched the field?
2 A. Yes, I have.
3 Q. You've looked at tobacco company
4 documents in the field?
5 A. Yes, I have.
6 Q. Looked at Philip Morris documents in the
7 field?
8 A. Yes.
9 Q. Okay. In your work and over time have
10 you encountered smokers who switched to allegedly low
11 tar or light cigarettes, low tar and low nicotine
12 cigarettes, in the hope that it would help them quit?
14 Q. Just so we're clear, what you're going to
15 talk about and your work is in your opinion applicable
16 to the people in this class for the people of the
17 State of Illinois?
18 A. Again --
2 Q. As we discussed earlier, have you talked
3 with smokers all over the country?
4 A. Yes, I have.
5 Q. And have you found that as a general rule
6 the item that you learn in one area of the country are
7 applicable to other areas of the country?
8 A. Yes, they are.
9 Q. And with regard to the discussion I want
10 to have with you as to the efforts of people to quit
11 by switching to low tar -- low nicotine cigarettes or
12 allegedly low tar and nicotine cigarettes, is that as
13 applicable to people across this country based on your
14 research?
15 A. Yes, it is.
13 Q. Have you in fact dealt with such people?
14 A. Yes.
15 Q. Okay.
16 A. People that --
17 Q. And again, I'm referring to people who
18 have switched to allegedly low tar, low nicotine
19 cigarettes to try -- as a way of trying to quit.
20 A. That's right.
21 Q. All right. Has there been a thought in
22 the scientific literature over time since the -- well,
23 let's just say the 1960's, 1970's, that switching down
24 from a high tar regular or full flavor cigarette to a
9
1 low tar, low nicotine cigarette was a step toward
2 quitting?
3 A. Yes.
4 Q. And do you know how that was intended to
5 work?
6 A. Well, there were techniques that were
7 discussed in the published literature and also that I
8 saw people try to utilize in my clinics called
9 nicotine fading, which was the idea of switching down
10 to a lower and lower yield nicotine products in the
11 hopes that it would make it easier to stop smoking.
12 Q. And are you aware of physicians who
13 recommended this approach to try to get people off
14 from cigarettes?
15 A. Physicians, nurses. It was fairly common
16 strategy that people recommended and discussed. There
17 were books written on the topic.
18 Q. Have you yourself done research as to the
19 -- whether this type of approach is successful in
20 getting people to quit?
21 A. Yes, I have.
22 Q. What did your results on this show?
9 Q. Is there any reason to believe that
10 smokers vary in their beliefs regarding their
11 perceptions of light cigarettes on a regional basis?
2 Q. Are we talking generally about people
3 when I ask you these questions? You're not saying
4 everybody in the world is doing it, are you?
5 A. No.
6 Q. But, you've encountered a large number of
7 people this has occurred to?
8 A. A lot of people switch to low tar
9 cigarettes in an effort to try to quit smoking.
10 Q. All right. Let's talk about that group.
11 Does it do any good?
12 A. My research says no. Research that I've
13 come up with from Philip Morris says no.
14 Q. Philip Morris looked at this?
15 A. Yes.
16 Q. When did you look at this issue?
17 A. I have a paper that's in press. We've
18 just really done the analysis in the last several
19 years.
20 Q. So, this is just recently for you?
21 A. Correct.
22 Q. How about for Philip Morris?
12 Q. I forgot my question. What did your
13 research show?
14 A. My research showed that people who
15 switched to low tar, low nicotine cigarettes were no
16 more successful in quitting than those who did not did
17 switch.
18 Q. All right. And I know where --
3 Q. All right. I know where I was going.
4 And that is you said that Philip Morris has also done
5 this research, is that correct?
6 A. That's right.
7 Q. And you've reviewed their documents on
8 this matter?
9 A. I have.
10 Q. And are their documents also within the
11 last couple of years?
12 A. No.
13 Q. They go back in time?
14 A. Quite a bit of time, yes. Back into the
15 70's.
16 Q. Okay.
17 MR. BRICKMAN: Your Honor, at this time I
18 would reference for this witness what we have already
19 marked as Exhibit 32.
9 Q. Do you recall this document?
10 A. Yes, I do.
11 Q. Okay. And this is the document you
12 identified earlier as being familiar with?
13 A. Yes.
14 Q. Okay. Could you go to page two, please.
15 MR. BRICKMAN: And that is 048287-01. Great.
16 Q. Let's go -- let's go -- actually we just
17 can go down to the very bottom of the page. First of
18 all, explain what this study was again.
19 A. This was a study looking at the last
20 brand of cigarette that people who had quit smoking
21 reported smoking at the time they last smoked. So, in
22 other words, among former smokers what was the last
23 brand you smoked, comparing the low tar smokers with
24 full flavor to see if there was a difference in the
15
1 quit rates.
2 Q. And again, this is a Philip Morris
3 document, correct?
4 A. That's right.
5 Q. Could you read into the record that last
6 sentence on that page that I just gave you, page two.
7 A. Sure. If the industry's introduction of
8 an acceptable low nicotine products does not make it
9 easier --
10 Q. No, no. Try again.
11 A. If the industry's introduction of
12 acceptable low nicotine products does make it easier
13 for dedicated smokers to quit, then the wisdom of the
14 introduction is open to debate.
15 Q. Philip Morris is apparently wanting to
16 see what the issue is going to be with low nicotine
17 cigarettes, is that correct?
18 A. Yes.
19 MR. LOMBARDI: Objection. Speculation.
20 THE COURT: Overruled.
21 Q. And did they in fact make some
22 determination a little later?
23 A. Yes, they did.
24 Q. And we would now move -- mark as -- let
16
1 me get the right one -- Exhibit Number --
2 MR. COURT: You were just on 32.
3 MR. BRICKMAN: Yeah, I know. But, we had
4 gone back to an exhibit. I think that this is now
5 Exhibit 36, which is a document dated September 11th,
6 1980.
7 Q. Could you identify this for us, please,
8 Exhibit 36.
9 A. Sure. This is a basically a memoranda
10 from the -- on the letterhead of the Marketing
11 Research Department Report. Their subject is
12 Quitters. And it's written by an N. Holbert.
13 Q. All right. And did they report -- in the
14 very end, would you tell us what they found?
15 A. Okay. Well, this is, again, it's a study
16 from their tracking studies that they do of smokers.
17 This is from 1980.
18 Q. And let me just stop you for a second. I
19 apologize. Could you look at the very bottom of the
20 page. And would you tell me if that -- you see the J.
21 Morgan? Because we heard from Mr. Morgan yesterday.
22 Is that Mr. Morgan who eventually became president of
23 the company?
24 MR. LOMBARDI: Speculation, your Honor.
17
1 MR. BRICKMAN: Do we got more than one?
2 Q. As far as you know, is that the only
3 Morgan you've seen at this company?
4 A. Well, I've seen J. Morgan referenced many
5 times on many Philip Morris documents, and I believe
6 this refers to James Morgan who became the -- he was
7 the vice president for marketing at this time when
8 this document I believe was written.
9 Q. All right. Do you know whether he
10 eventually became president of the company?
11 A. He did.
12 Q. Okay. Could you read that last sentence
13 of the document, please.
14 A. Sure. Low-tar smokers, and in
15 parentheses and ultra-lows, say they'll quit more than
16 smokers in general, but actually they quit less,
17 especially ultra-lows.
18 Q. Does that finding comport with what you
19 have recently found?
20 A. Yes, exactly.
21 Q. And what is the date on this document?
22 A. 1980. September 11th, 1980.
23 Q. From a public health point of view, what
24 is the significance of this document and the fact it
18
1 goes back all the way to 1980?
13 Q. Go ahead.
14 A. Well, the significance to the public
15 health is that the marketing of low tar cigarettes
16 basically circumvent the ability of people to quit
17 smoking, because there is no benefit to somebody
18 quitting smoking switching to a low tar cigarette.
19 And we know that the -- to reduce the disease risk
20 associated with smoking, the thing you got to do is
21 quit. You get no benefit by going to low tar.
22 Q. All right. Now, just to make sure,
23 because there's a little point I got to quibble with.
24 We talked about the fact just now that these are
19
1 people we were looking at who we're trying to wean
2 down, correct?
3 A. That's right.
4 Q. Are there also some people who smoke low
5 tar cigarettes not to wean down, but simply as an
6 alternative to quitting?
7 A. That's right. I think actually that's a
8 larger percentage.
9 Q. And --
16 Q. Have you in fact encountered such people?
17 A. Yes. Many.
18 Q. And have you learned from your research
19 and your review of the literature and your talking to
20 people what they are doing in switching down to a --
21 not switching down -- it's the wrong word -- in
22 turning to a light or low tar cigarette instead of
23 quitting?
24 A. They're hedging their bets on the risks
20
1 of smoking. They think they're doing something better
2 by reducing the tar levels in hopes that they'll lower
3 their chances of getting ill from smoking.
21 Q. Now, let me show you what we have already
22 looked at previously and have marked as Exhibit 33,
23 which is a document dated August 14th, 1978. Do you
24 recall this document, sir?
21
1 A. Yes. This is the focus --
2 Q. Are you still familiar with it?
3 A. Yes, I am.
4 Q. Okay. This is the focus group you were
5 referencing earlier?
6 A. Two focus groups.
7 Q. Excuse me?
8 A. There were two of them.
9 Q. Okay. And this again is something that
10 was provided to Philip Morris, correct?
11 A. That's right.
12 Q. All right. Let's turn again to where we
13 were reading before. Remember we stopped reading at a
14 certain portion. And I'm looking at the same page as
15 before. And that is with the Bates number
16 1004888480.
17 A. Okay.
18 Q. And let's read the highlighted portion
19 there if we could, sir.
20 A. Although some experience that they
21 actually smoke more lights, they perceive that they
22 are cutting down and it is an alternative to quitting,
23 which most cannot accomplish.
24 Q. Is that -- does that comport with what
22
1 you have found in your research?
2 A. Yes. And my experience in working with
3 smokers.
4 Q. What is the significance of that from a
5 public health point of view?
11 A. The significance is that people are
12 smoking under the illusion -- smoking lights in this
13 case under the illusion that they're lowering their
14 risk when they're not, and they'll continue to smoke
15 and continue to put themselves at great peril as a
16 result of that behavior.
17 Q. Dr. Cummings, you have been active in
18 public health and tobacco control now for twenty
19 years, correct?
20 A. Twenty-two years, yes.
21 Q. Twenty-two years. In your position, you
22 know, in public health, as Chairman of the Department
23 of Health Behavior with the Division of Cancer
24 Prevention, one of the leading cancer institutions in
23
1 the country, has the introduction of light cigarettes
2 by Philip Morris, low tar cigarettes such as Marlboro
3 Lights and Cambridge Lights, contributed in any way to
4 make smokers safer?
5 MR. LOMBARDI: Objection. Foundation, your
6 Honor. There is no foundation for this testimony.
7 THE COURT: Overruled.
8 A. Not at all.
9 Q. Has the switch from cigarettes like
10 Marlboro Regulars to Marlboro Lights or Cambridge
11 Regulars to Cambridge Lights contributed in any way to
12 cancer prevention?
13 MR. LOMBARDI: Objection. Foundation.
14 Relevance to this case.
15 THE COURT: It would be overruled.
16 A. Not at all. Just the opposite. It's
17 contributed to an increase in cancer.
18 Q. Has the switch from full flavor --
24 Q. Has the switch from full flavor
24
1 cigarettes such as Marlboro Regulars and Marlboro Reds
2 to Marlboro Lights contributed to smoker cessation in
3 any way?
4 MR. LOMBARDI: Object to the foundation.
5 Lack of foundation, your Honor.
6 THE COURT: Overruled.
7 A. In my opinion it's kept people smoking
8 who might have otherwise quit.
15 Q. Based on your research in the field, do
16 you have an opinion as to whether smokers of
17 cigarettes like Marlboro Lights or Cambridge Lights
18 get less tar and nicotine when they smoke them?
22 A. Based on my research, they do not get
23 less tar or nicotine by smoking Marlboro Lights or
24 Cambridge Lights. In fact, they may even get more.
25
1 Q. At the end of the day we're going to go
2 through one other document, so I don't want to
3 reference it specifically. But, you testified earlier
4 that consumers to this day still perceive them as
5 safer, is that correct?
6 A. That is correct.
7 Q. How is that so, do you know? Do you have
8 some idea as to why that is still so?
17 A. Yes, I do.
18 Q. What's that reason?
19 A. Well, the reason is marketing. And
20 they've been told that it's lower in tar and
21 nicotine. It says so on the pack. It said so in the
22 advertising. And that's what smokers believe.
23 Q. Does the use of the word light also
24 contribute to that?
26
1 A. The word light, yes, definitely
2 contributes to that as well other aspects of the
3 pack. The gold rather than the red. The more white
4 space. The fact that they use many other ways in
5 their marketing, as I've learned in reading their
6 documents, to communicate light, less, low tar, safer,
7 less dangerous. It's been a fraud.
14 Q. Once again, let's switch to a new topic,
15 if we could.
16 A. Okay.
17 Q. Put the mind elsewhere. You talked
18 earlier about the tar derby.
19 A. Yes.
20 Q. Do you recall that?
21 A. Yes.
22 Q. And you said it was prompted at least in
23 some part by the linking of cigarette smoking with,
24 among other diseases, cancer, correct?
27
1 A. That's right.
2 Q. Were there additional episodes thereafter
3 wherein cigarette smoking was linked with diseases in
4 humans?
5 A. Many. Cigarettes are considered the most
6 studied risk factor for human health that there ever
7 has of any other risk factor out there. I believe the
8 Surgeon General has stated that.
9 Q. From a public health point of view and in
10 your efforts to get smokers to quit smoking, these
11 efforts by public health to publicize the dangers, are
12 those helpful to you?
13 A. Yes.
14 Q. And why is that?
15 A. Well, I work at a cancer center, and
16 obviously, since smoking causes cancer, efforts to
17 publicize and educate people is the first thing you're
18 going to do to try to discourage or reduce cancer
19 rates. That's basically what I do in my job.
20 Q. Now, in opening statement and in the
21 cross examination of a prior witness, Dr. Benowitz,
22 Counsel for Philip Morris said that Philip Morris and
23 the tobacco companies were working together with
24 public health to make it a safer world with their
28
1 cigarettes.
10 Q. Are you familiar with them having made
11 that argument previously?
12 A. Yes, they have.
13 Q. All right. Let's start right at the
14 get-go. Is it true?
15 A. Completely false. At every step that I
16 have seen, and it's -- I have stacks of press releases
17 -- every article that came out showing that smoking
18 was linked to disease, basically there was a response
19 from the tobacco companies either through the Tobacco
20 Institute, accounts for tobacco research, or the
21 individual companies like Philip Morris, disputing the
22 fact.
24 Q. Dr. Cummings, let's do this. Let's put
33
1 them in broad categories, if we could. Could you tell
2 me the various responses that tobacco companies, and
3 specifically Philip Morris now -- I don't want the
4 others -- what they have been with regard to these
5 public health issues and health scares as you've -- as
6 we've referred to them earlier.
7 A. Sure. I use four categories. They made
8 promises to consumers on a variety of issues like
9 cooperating with public health, the promise to do
10 research to find out whether there was a relationship
11 between cigarette smoking and disease; they basically
12 denied the health risks related to cigarette smoking;
13 and they attacked repeatedly over the last 50 years in
14 my assessment of their documents and my experience
15 personally the findings from scientific studies; and
16 finally, they provided a crutch to smokers initially
17 with the introduction of filtered cigarettes and then
18 later with the introduction of lower delivery
19 cigarettes to keep people smoking.
22 Q. All right. Let's go through them one at
23 a time, if we could. Let's talk about what you mean
24 by promises. What are you referencing there?
35
1 A. Well, the initial promise that was made,
2 is really articulated to the public, was in the form
3 of an advertisement that was published in January of
4 1954 referred to as the Frank Statement, which Philip
5 Morris was a party to that particular advertisement
6 along with other cigarette manufacturers.
7 Q. And bear with me for a second.
8 MR. BRICKMAN: Could with go to CKT 040705,
9 which, before you put it up, hold on, would you
10 provide a copy to Counsel. And this will be Exhibit
11 37.
24 Q. All right. What is a Frank Statement to
36
1 cigarette smokers?
2 A. Well, this is an ad that appeared in I
3 think some 400 different newspapers, 258 cities around
4 the country, I think reaching 48 million Americans in
5 January -- I think it came out in January 1st and 2nd
6 of 1954 in some major newspapers. And it was a
7 response to some of the claims that cigarette smoking
8 was harmful to health, specifically that smoking would
9 cause cancer.
10 Q. And what is the significance of a promise
11 in this document to cigarette smokers?
12 A. Well, there were three promises made in
13 this particular advertisement. And it was directed to
14 cigarette smokers. That's why it says A Frank
15 Statement to Cigarette Smokers. And it said, you
16 know, We believe the products we make are not
17 injurious to health. We have always had and always
18 will cooperate closely with the task. It is the
19 safeguard for public health. We pledge aid and
20 assistance to the research effort in all phases of
21 tobacco use and health. In other words, to look at
22 the allegations that were being made about smoking and
23 cancer at the time. They talked about the
24 establishment of an independent research group at that
37
1 time referred to as the Tobacco Industry Research
2 Committee. And they basically promised to share the
3 findings of their research, whatever they may be, with
4 the American public.
5 Q. All right. Did their promises end with
6 this statement?
7 A. No. This was the opening part of the
8 promise. And they went out on the road basically and
9 repeated this all over the country in speeches that
10 were made by executives from the companies --
11 Q. All right. Well, bear with me. I'm
12 going to get to the speeches in a minute. Let's stop
13 there. Let's now go to our next exhibit, which is 38,
14 which is a document dated June 7th, 1966.
22 Q. Could you tell the Court what this is,
23 just briefly.
24 A. Yes. This is a -- remarks of a speech
38
1 made by Joseph Cullman, president of Philip Morris,
2 June 7th, 1966, to the South Carolina Tobacco
3 Warehouse Association.
4 Q. Getting near my hometown.
5 A. Yes.
6 Q. All right. And if we can turn to page
7 ten. And again, is this another promise coming about?
8 A. Yes, it is.
9 Q. And what is he promising here?
10 A. Actually it's not another one. This is
11 just a reiteration of the original promises that have
12 been made back in 1954. It says First of all, we feel
13 a deep sense of responsibility to our cigarette
14 smokers. All of us who work in the industry feel a
15 deep concern over the questions raised about
16 cigarettes and health. We will not rest until we
17 learn the scientific facts that will provide solutions
18 to the medical problems and questions. We intend to
19 leave no research question unanswered in our quest for
20 the truth. And then it goes on to talk about the
21 Council for Tobacco Research, which was the
22 organization that started out as the Tobacco Industry
23 Research Committee that was talked about in that Frank
24 Statement advertisement in 1954.
39
1 Q. Now, let's go to one more document, if we
2 could, and that will be Exhibit 38 -- 39, I'm sorry,
3 which is a document dated January 3rd, 1971. And just
4 a minute.
5 MR. BRICKMAN: It will be CKT 041080. But,
6 don't put it up yet, please. All right. Could we put
7 up this document, please.
8 Q. All right. What is this, Dr. Cummings?
9 A. This is a transcript of an interview that
10 was done with Joseph Cullman, who then was Chairman of
11 the Board of Philip Morris in 1971, and it was on CBS
12 Face the Nation.
13 Q. All right. What's the date on it?
14 A. January 3rd, 1971.
15 Q. And that immediately in some number of
16 months precedes the launching and marketing of
17 Marlboro Light cigarettes?
18 A. Yes, it does.
19 Q. What does Mr. Cullman say here? What did
20 he say on this show? And let's go to --
21 A. Well, he said a lot of things actually.
22 Q. All right. Well, let's go to what I want
23 to hear about. Let's go to page four, which is
24 041085-01.
40
1 A. All right. Would you like me to read it?
2 Q. Please.
3 A. We are also very concerned about the
4 charges leveled against our product, and we are very
5 anxious to do whatever we can to clear the air in this
6 matter. We happen to be optimistic about the future,
7 and we happen to feel that this is a great industry
8 and that this industry can face the future with
9 confidence because when, as, and if an ingredient in
10 cigarette smoke is identified as being injurious to
11 human health, we are confident that we can eliminate
12 that ingredient.
13 Q. How does this promise relate to
14 cigarettes with less tar in them -- allegedly less tar
15 in them?
22 Q. You mentioned before the villain in
23 cigarettes. What was the public's perception of the
24 villain?
41
1 A. Tar was the villain.
2 Q. Does this fit in with the -- well, strike
3 that. With regard to this promise, what are they
4 saying if they find a villain in cigarette smoke what
5 they could do?
6 A. If we find any ingredient that's harmful
7 to human health, we'll take it out.
8 Q. Does this comport with the idea that even
9 if they can't take it out by at least reducing it,
10 they're telling consumers it's safer?
42
1 A. This reinforced the perception that it's
2 okay to smoke; and that if there's anything bad, we'll
3 take it out; and that if tar is the villain, less tar
4 is better.
5 Q. All right. Now, you also mentioned in
6 your four sets of responses by Philip Morris to the
7 public health scares, attacks. What did you mean by
8 that?
9 A. Well, the attacks were basically
10 attacking every article that came out on smoking and
11 health, there was a press release, a press conference,
12 a comment challenging the findings. And of course
13 they just accumulate. I've got stacks of these press
14 releases from all the companies, but including Philip
15 Morris, on every study that came out from the early
16 50's basically up to present. In fact, some of my own
17 studies have been attacked. I've had people, you
18 know, talk to me about science by press release in
19 some of the work that I've done.
9 Q. Let's just stick to leave you out of it
10 for now, okay?
11 A. Okay.
12 Q. Counsel's referenced Surgeon General
13 Reports and information contained therein during some
14 of his prior -- in opening statements and in some of
15 his cross examination of some of the witnesses. Did
16 they cooperate with the Surgeon General Reports?
17 MR. LOMBARDI: Object to the form. No
18 foundation.
19 THE COURT: What period?
20 MR. BRICKMAN: Any period, Judge.
21 THE COURT: Well, why don't you couch it that
22 way.
23 Q. Did they cooperate or assist the Surgeon
24 General in what he was trying to do with regard to
44
1 smoking and health issues in the 1960's?
7 A. They commented on virtually every Surgeon
8 General's report that came out from 1964 right up
9 basically to the present time with press releases
10 basically challenging and criticizing the findings of
11 those reports. And those reports, of course, are
12 summary findings related to the wave of evidence of
13 scientific -- scientific evidence on smoking and
14 health issues.
15 Q. All right. I want you to assume that
16 there are going to be witnesses for the tobacco
17 company here that are going to come in and say there
18 were just one after the other Surgeon General Report
19 talking about the dangers of cigarettes, talking even
20 about low tar cigarettes. What impact from a public
21 health point of view does it have when a company like
22 Philip Morris or its organizations it belongs to
23 attack each and every one of those reports?
16 A. Basically the effect is -- on the
17 consumer is to say Well, it's still an open debate,
18 It's an open question. It would basically water down
19 the findings of those consensus documents in '64 that
20 heavy smoking was a cause of lung cancer. They were
21 challenging that finding. They said Well, you know,
22 we don't believe that finding; It's not true; More
23 research is needed. And you can find press releases
24 like that for virtually every report right up through
46
1 the 1990's and statements from their executives as
2 well claiming that we just don't believe that
3 cigarette smoking has been proven to be a cause of
4 cancer.
9 MR. BRICKMAN: Your Honor, at this time we
10 would mark as Exhibit 40 a document dated January
11 10th, 1979.
12 Q. I don't want to go into great detail with
13 this. Is this one of the type of reports that you're
14 referring to?
15 A. Yes.
24 Q. And again, let's put that one down.
47
1 We're going to have another one now. This is Exhibit
2 41, which is a document dated February 5th, 1972.
3 MR. BRICKMAN: And, your Honor, I'm just
4 going to put a series of these in. I don't think we
5 need to go through all of them. And actually I would
6 like to put one phrase from this one in here.
14 MR. BRICKMAN: I'm sorry. 063309, and then
15 there will be an 01 for the next one. Let's put it
16 up. 063309. There we go.
17 Q. What is this?
18 A. This is a press release from the Tobacco
19 Institute.
20 Q. And what is the Tobacco Institute?
21 A. The Tobacco Institute is a trade
22 association of the major tobacco manufacturers, of
23 which Philip Morris is -- or was one. The Tobacco
24 Institute no longer exists.
48
1 Q. Okay.
7 Q. Could you read that for us, please.
8 A. Okay. Oklahoma City, this is Mr.
9 Ehringhaus, Jr., Vice President and Counsel for the
10 Washington-based Tobacco Institute, said here today
11 that the 1972 report of the Surgeon General to
12 Congress on smoking and health insults the scientific
13 community and thus leads us all to the conclusion that
14 the number one public health problem is not cigarette
15 smoking, but is the extent to which public health
16 officials may knowingly mislead the American public.
17 Q. Now again, and I want to keep it to this
18 case, how does that affect the people in this case and
19 making the choices they are making with regards to
20 listening to officials like the Surgeon General and
21 other public health officials?
7 A. Well, basically what it would do is water
8 down any kind of statements that would come out of the
9 Surgeon General's Committee, which in 1972 there is
10 more evidence coming out reinforcing the dangers of
11 cigarette smoking. And the effect of comments like
12 this would be to basically water those down. And if
13 you're a smoker, this is sort of reassuring Well,
14 maybe the Surgeon General doesn't know; It's the
15 Government out there saying something. Basically this
16 is reassuring to the smoker that they just don't
17 know. And, of course, by 1972 the weight of
18 scientific evidence is certainly clearly in the
19 Surgeon General's court that cigarette smoking was a
20 cause of lung cancer. We did know. And this was
21 basically reassurance to smokers --
22 MR. LOMBARDI: I would move --
23 A. -- to keep smoking.
7 Q. Just so we don't have to go into too
8 many, did they only attack the findings of the Surgeon
9 General with regard to smoking and health issues?
10 A. No. They attacked the American Cancer
11 Society. They attacked individual scientists who
12 would publish their research. There were numerous
13 numerous press releases. On virtually any comment
14 about smoking and health, they would have a response.
15 And their response was very consistent: It's still
16 not known; More research is needed. And that was a
17 lie.
18 Q. Now --
5 Q. All right. Along the same lines, and
6 again, so we can move a little bit faster, did they do
7 the same thing with the concept of just the denials,
8 just what you've said?
9 A. Yes. I mean, their denials were
10 consistent. It started in 1954, Our products are not
11 injurious to health. Some of the executives from
12 Philip Morris went out on the road and actually made
13 speeches that said If our products are ever found to
14 be harmful, we'll stop business tomorrow; We'll stop
15 selling it. They made quotes like that that were in
16 the Wall Street Journal. As recently as 1972, I think
17 it was Mr. James Bowling who made that quote, If our
18 product is ever found to be harmful, we'll stop
19 selling it.
20 Q. All right. Let's move on to where I
21 really want to go. And we've got to take it in two
22 steps, if the Court will bear with us, which is the
23 last item on your list. And that's the psychological
24 crutches.
52
1 MR. BRICKMAN: And to that end we would offer
2 into evidence Exhibit Number 42, which is a document
3 dated January 29th, 1964, and which will be -- don't
4 put it up quite yet -- 052480-02.
5 Q. Have you seen this document previously,
6 sir?
7 A. Yes, I have.
8 Q. And who are the -- who are the two people
9 named at the top there?
10 A. George Weissman was a senior vice
11 president for Philip Morris. In fact, he made some of
12 those comments that I just made mentioned about the
13 speeches. He was making some of those speeches. And
14 Joseph Cullman was the president of Philip Morris.
15 Q. All right.
16 A. And the comment here --
17 Q. Wait. Bear with me. Give me a little
18 slack. Let me lead you a little bit here where I want
19 to go.
20 A. Sure.
21 Q. Let's go to paragraph one first. It's
22 not highlighted.
23 MR. BRICKMAN: Go up to the very top. Very
24 top.
53
1 Q. The first one right there.
2 A. Sure. Inasmuch as I am leaving soon and
3 I'm involved in preparations for my trip, I thought I
4 would pass on to you some of my thoughts regarding the
5 recent release of the Surgeon General's Report.
6 Q. All right. What report came out around
7 this time, 1964?
8 A. The original Surgeon General's Report
9 came out January 11th, 1964. This memo is dated
10 January 29th, 1964.
11 Q. What did this report deal with?
12 A. This was the original report on smoking
13 as a cause of cancer.
14 Q. All right. Let's go down to the bottom
15 of the page, the highlighted portion. And it's under
16 the category Public Relations Program. Could you read
17 that, please.
24 A. However, at some point, reflecting the
54
1 same seriousness with which we meet the report, we
2 must in the near future provide some answers which
3 will give smokers a psychological crutch and a
4 self-rationale to continue smoking. The answers must
5 also point up the weaknesses in the report and the
6 path for future research.
7 Q. All right. Is this what you're referring
8 to when you use the phrase psychological crutch, this
9 concept?
10 A. Yes.
11 Q. What are they trying to do here based on
12 your understanding of the document?
22 A. I think the document actually is fairly
23 self-explanatory in the sense that it indicates that
24 Philip Morris was looking at ways to reassure smokers
55
1 through its marketing, through its introduction of new
2 products, looking to the future so they could continue
3 to sell cigarettes and keep people smoking.
4 Q. All right. And again, who are these
5 people who were writing and receiving this document?
6 A. It's the president of Philip Morris
7 received the document, Mr. Cullman, and George
8 Weissman, who was the senior vice president of the
9 company.
10 Q. All right. To your knowledge, did they
11 provide some crutch or reassurance to the smokers?
12 MR. LOMBARDI: Object to the form.
13 Foundation.
14 THE COURT: Yeah, lay a little better
15 foundation.
16 MR. BRICKMAN: That's fine.
17 Q. Let's look at the next exhibit.
18 MR. BRICKMAN: We'll do it by exhibit, your
19 Honor.
20 Q. Let's look at the next one, Exhibit
21 Number 43, which is a document dated February 18th,
22 1964. And it will be 006101.
9 Q. Could we now -- well, first of all, can
10 you identify this for us, please.
11 A. Yes. This is a February 18th memo or
12 report entitled Smoking and Health, Significance of
13 the Report of the Surgeon General's Committee to
14 Philip Morris Incorporated. It's signed by Helmut
15 Wakeham.
16 Q. Who is Mr. Wakeham?
17 A. He was the senior scientist at Philip
18 Morris Tobacco Company. And it's copied to a variety
19 of people at Philip Morris, including Mr. Cullman.
20 Q. Okay. Now, this is Hugh Cullman. This
21 is a different Cullman than the Joseph Cullman,
22 correct?
23 A. That's correct.
24 Q. Was he also, however, one of the
57
1 executives at Philip Morris?
2 A. Yes, he was.
3 Q. All right. And let's go, please, to page
4 8, which is 006110-02.
5 MR. BRICKMAN: And could you blow that up for
6 us, please.
7 Q. Could you read that.
8 A. Sure. This is actually under the title
9 Industry Posture Vis-A-Vis Public. The health value
10 of filters is undersold in the report and is the
11 industry's best extant answer to its problem. The
12 Tobacco Institute obviously should foster the
13 communication of the filter message by all effective
14 means.
15 Q. Are you aware of advertising by these com
16 -- by Philip Morris that took place around this time
17 with regard to their cigarettes?
18 A. Yes.
19 Q. Did they talk about any particular
20 feature from here on out?
7 A. Well, basically they marketed and
8 advertised filtered cigarettes and lower tar
9 cigarettes or light cigarettes after this came out. I
10 don't think they ever introduced a non-filtered brand
11 after this time.
12 Q. And what was the message being given with
13 these filters?
14 A. They're safer. That's the message that
15 the consumer --
16 THE COURT: I'm sorry?
17 THE WITNESS: That they're safer. They
18 reduce the tar. They take the bad stuff out of the
19 cigarettes.
20 THE COURT: Wait, wait.
21 MR. LOMBARDI: I'm going --
22 THE COURT: Wait, wait, wait. Go ahead.
6 MR. BRICKMAN: Let's go one more document in
7 this area, your Honor. And that is Exhibit -- oh,
8 it's already in evidence. It's Exhibit 5.
9 Q. You don't have it, Dr. Cummings.
10 MR. BRICKMAN: Counsel, do you need another
11 copy?
12 MR. LOMBARDI: I'm sorry, which number?
13 MR. BRICKMAN: Five.
14 MR. LOMBARDI: You know, it would make it
15 easier.
16 MR. BRICKMAN: Absolutely. And this is CKT
17 004421. And this document is already in evidence,
18 your Honor.
19 Q. Do you know what this document is, Dr.
20 Cummings?
21 A. Yes. This is a document written by Myron
22 Johnston, who was a demographer and economist working
23 for Philip Morris. It was approved by William Dunn,
24 who is a psychologist who set up and ran the Human
60
1 Behavior Smoking Behavior Lab for Philip Morris. And
2 it was distributed to Robert Seligman and Helmut
3 Wakeham, both of whom were senior scientists at Philip
4 Morris.
5 Q. All right.
12 MR. BRICKMAN: When was it introduced?
13 THE COURT: Yes. I'm trying to figure the
14 context in which it came. Who testified on this?
15 MR. BRICKMAN: Your Honor, I believe this
16 would have been Dr. Farone.
17 MR. TILLERY: Dr. Farone identified it, your
18 Honor.
19 THE COURT: Oh, okay. Overruled.
20 Q. All right. Let's set the stage a little,
21 if we could. Put this in context. You've had the tar
22 derby, correct?
23 A. Correct.
24 Q. Public perception, tar is the villain,
61
1 correct?
2 A. Correct.
3 Q. You have the Surgeon General's Report
4 coming out, correct?
5 A. It's come out by the time this document.
6 Q. That's right. They're saying We ought to
7 be touting our filters, correct?
8 A. That's right.
9 Q. Our filter is going to get rid of that
10 evil villain tar, correct? Or reduce it, correct?
11 A. Correct.
12 Q. Make it safer, correct?
13 A. Correct.
14 Q. What does this document say about those
15 filters? And could you turn to page two.
16 MR. BRICKMAN: If we could get the
17 highlighted portion, 4426-02.
18 A. All right. This is under the
19 Conclusions, and there are a list of twelve. And
20 number ten was: The illusion of filtration is as
21 important as the fact of filtration.
22 Q. With regard to low tar light cigarettes,
23 is that in fact what occurred?
6 A. Yes, it is.
7 Q. In what way?
8 A. Well, basically it doesn't matter whether
9 the product actually delivers what it says it does;
10 it's only what the consumer believes.
11 Q. Let's look at the next item on this one.
12 Number eleven, please.
13 MR. BRICKMAN: And I don't think I
14 highlighted it. If you could go down, please.
15 Q. Could you read that next, number eleven,
16 also.
17 A. Therefore, any entry should be by a
18 radically different method of filtration, but need not
19 be any more effective.
20 Q. As it has turned out, has the low tar or
21 light cigarettes such Marlboro Lights and Cambridge
22 Lights turned out to be any more effective?
23 A. They have not.
3 Q. What is the significance of this from a
4 public health point of view of taking this position
5 with regard to cigarettes?
19 MR. BRICKMAN: Well, I want to play a video
20 clip for you first. Make it even easier.
21 THE COURT: All right.
22 MR. BRICKMAN: Let's play Cullman Number 2,
23 please.
24 (The following was an excerpt was played from
64
1 the videotape.)
2 "Q. We will have as Exhibit 11. Now, let me
3 show you a document which we will mark
4 as Exhibit 11. Now, this is a document
5 dated January 29, 1964 from Mr. Weissman
6 to a Joseph F. Cullman, III. That's
7 you, right?
8 A. Uh-huh.
9 Q. And -- you have to say yes.
10 A. Yes.
11 Q. Okay. Now, that Mr. Weismann here,
12 that's the same Mr. Weissman that's up
13 on the tenth floor with you down the
14 street at Philip Morris Company?
15 A. Yes.
16 Q. Okay. Now, Mr. Weissman apparently
17 told you back in '64 that you were
18 concerned about cigarette smokers
19 quitting and you needed to give them a
20 crutch or a rationale to keep
21 smoking, correct?
22 A. That's what this says.
23 Q. And that's what he wrote to you,
24 correct?
65
1 A. He did write it.
2 Q. Well, let's look at it again. We must
3 in the near future provide some answers
4 which will give smokers a psychological
5 crutch and a self-rationale to continue
6 smoking. Isn't that what it says?
7 A. It does say that.
8 Q. And one of the crutches that you gave
9 them was light cigarettes, correct?
10 A. We must in the near provide some
11 answers which will -- light
12 cigarettes. Okay, yes."
20 Q. Is that what you're saying that they were
21 -- first of all, that they were providing light
22 cigarettes. Is that crutch to keep them smoking?
23 A. Yes.
24 Q. And with regard to light cigarettes, was
66
1 the filtration system any better or any more
2 effective?
3 A. No.
4 Q. And that is in fact what they were saying
5 back in the 1960's?
10 A. Yes, it was. That's what they were
11 saying.
12 Q. We're about to finish up. Let me just
13 ask you a couple of things, because I've seen some of
14 your depositions and cross examinations. Do you know
15 what a zealot is?
16 A. Yes.
17 Q. Are you a zealot?
18 A. Well, I've been labelled a zealot. I'm a
19 research scientist. That's what I consider myself.
20 But, I have certainly had people call me a zealot,
21 mainly people from the tobacco companies.
22 Q. If you're zealot about something, what
23 are you zealot about?
24 A. Preventing cancer. That's my job.
67
1 Q. You've also been asked about an article
2 you wrote entitled Involving Older Americans in the
3 War on Tobacco. Are you at war with tobacco?
4 A. Well, I did use that title. But, I'm not
5 at war with tobacco. I'm at war with cancer. And
6 because cigarette smoking is the number one cause of
7 cancer, it's why I've dedicated my career to try to
8 discourage people from, you know, starting to smoke,
9 and for those who do smoke, I offer assistance and
10 help to try to get them off the cigarettes. It's not
11 easy to do, because most people struggle to quit.
12 Q. Do you consider yourself anti-tobacco?
13 A. Well, I've of course been labelled -- I
14 don't like the word anti-tobacco, to tell you the
15 truth. I usually like to use the term pro-health. I
16 actually am in the position of trying to help smokers
17 quit. So, I offer help and assistance. I'm not anti-
18 tobacco. I'm anti-cancer. And I think most people
19 are. They want to prevent cancer. I would like to
20 put my cancer center out of business, quite frankly.
21 Q. I want to make sure the record is clear
22 on something I asked you earlier that I've been told
23 to clear up. With regard to the testimony you gave
24 throughout the day, have you ever seen any research or
68
1 any other literature that suggests that there are any
2 regional differences among people in this country
3 regarding their beliefs about light cigarettes or low
4 tar cigarettes?
11 A. The answer is no, I've not seen such
12 evidence. And we've looked. Because, you know, the
13 Commit Study was community-based studies in 22
14 different communities around North America. So, we
15 have data on 20,000 smokers. These are 22
16 communities. And, you know, with regard to the
17 beliefs about risks of smoking and so on, there was a
18 lot of consistency across those smoker groups.
19 THE COURT: Well, he's gone to communities
20 now. He's going to have to elaborate where these
21 communities are.
22 THE WITNESS: Sure. I would be happy to tell
23 you. We have four of those communities in New York
24 State -- Binghamton, Utica, New Rochelle, and
69
1 Yonkers. Two of the communities were in
2 Massachusetts. We had two communities in Iowa. We
3 had two in North Carolina. California, New Mexico,
4 Oregon, Washington State, two in Southern Ontario,
5 Canada. I think those -- North Carolina I think I
6 mentioned. So, I think that captures them all.
7 Q. Do you believe that the information
8 you've culled from that would also be applicable to
9 the citizens of this state, too?
10 A. Absolutely.
11 MR. LOMBARDI: Objection. Foundation.
12 THE COURT: Well, if you're going to connect
13 that up, then I have to see how he connects it up.
14 So, I'll require you to do that.
15 Q. Is there any reason to think, first of
16 all, that the citizens of the state of Illinois are
17 any different from any of the other people you've
18 examined with regard to their beliefs, their
19 perceptions of light cigarettes and low tar
20 cigarettes, based on just your examination of all the
21 variations elsewhere?
2 A. No. I have no basis for saying that they
3 would be any different than the people that I see in
4 my clinics at Roswell Park.
5 Q. Do you know whether you've ever talked
6 with people from the state of Illinois about these
7 situations?
8 A. I've been to Illinois many times. I've
9 given talks here in Illinois on the subject of smoking
10 and health. So, no. The answer would be there's no
11 reason to believe that people in Illinois are going to
12 be uniquely different than the people in every other
13 place where I've spoken to smokers.
22 MR. BRICKMAN: Your Honor, at this time we
23 would move the admission of all the documents we have
24 marked to date, which are -- start with Exhibit 31 and
71
1 go through 43.
14 CROSS EXAMINATION
15 BY MR. LOMBARDI:
16 Q. Doctor, when you were talking about the
17 war on tobacco, you left one part out from your
18 testimony, didn't you?
19 A. I'm not sure what you're referring to.
20 Q. Well, I'm referring to the fact that you
21 also compared the war on tobacco to the war on
22 terrorism, don't you?
23 A. I have in an editorial that Dr. Pollay
24 and I wrote for a journal issue on tobacco documents,
73
1 yes.
2 Q. And you testify quite a bit, don't you,
3 Doctor?
4 A. I have testified before, yes.
5 Q. Quite a bit. Are you uncomfortable with
6 the term quite a bit?
7 A. Well, I'm not sure how you mean it.
8 Q. Okay. Well, you've testified this week?
9 A. I finished up cross examination this week
10 in a case in New York City, yes.
11 Q. In New York. And you've testified in how
12 many tobacco trials?
13 A. At trial, maybe nine or ten.
14 Q. And how many depositions have you given?
15 A. I'm guessing, but maybe thirty.
16 Q. And then you work with plaintiffs'
17 attorneys as well, is that right?
18 A. I work with lots of people.
19 Q. Okay. Do you work with plaintiffs'
20 attorneys?
21 A. Yes, I have.
22 Q. Okay. And you've gone to conferences
23 with plaintiffs' attorneys?
24 A. I have been asked to speak at conferences
74
1 by plaintiffs' attorneys, yes.
2 Q. And you speak at conferences that are
3 designed to tell plaintiffs' attorneys how to win
4 tobacco cases, isn't that right?
5 A. Well, actually that was a conference that
6 was sponsored by the Northeastern Law School in
7 Boston. I was invited to give a talk on some of my
8 research on tobacco documents.
9 Q. All right. It's true, isn't it -- I
10 didn't think you answered my question. I asked you
11 Did you go to -- Do you speak at conferences that are
12 designed to help plaintiffs' attorneys win tobacco
13 trials?
17 A. I have spoken at conferen -- many
18 different conferences, and I think the conference
19 you're referring to I was invited to give a talk
20 because of my research on tobacco documents.
21 Q. Do you remember that it -- if it's
22 difficult for you to answer the question, Dr.
23 Cummings, let me just ask you if you remember the
24 title.
75
1 MR. BRICKMAN: Objection.
2 THE COURT: Hold on. I'll sustain the
3 objection. Ask your question.
4 Q. What was the title of that conference,
5 Doctor?
6 A. How to -- I think it was How to Win a
7 Successful Verdict. I think that was it.
8 Q. And that related to tobacco cases, is
9 that right?
10 A. It was on tobacco, yes.
11 Q. Okay. Now, you have spent over the past
12 five years or -- strike the question. You derive
13 income from your testimony as well, is that right?
14 A. Yes.
15 Q. And your work with plaintiffs' attorneys,
16 is that right?
17 A. Yes.
18 Q. Ten to fifteen percent of your income
19 over the last five years has been from your testimony
20 in tobacco cases, is that right?
21 A. Yes.
22 Q. Now, Doctor, you're not a medical doctor?
23 A. No.
24 Q. You're not a pharmacologist?
76
1 A. No, I'm not.
2 Q. You're not trained as a historian, is
3 that right?
4 A. Not formally trained, no.
5 Q. You didn't major in history in college,
6 is that right?
7 A. No, I didn't.
8 Q. No advanced degrees in history?
9 A. Correct.
10 Q. No advanced degrees in working with
11 source materials from historical time periods, is that
12 right?
13 A. I wouldn't say that. Because in my field
14 we use source materials for our research all the time,
15 and many of those source materials are historical in
16 nature, like medical records and such.
17 Q. You're not a psychologist?
18 A. I'm not trained as a psychologist.
19 Q. You're not a psychiatrist?
20 A. Correct.
21 Q. You're not a chemist?
22 A. Not a chemist.
23 Q. You're not a toxicologist?
24 A. No.
77
1 Q. Never went to school in marketing? For
2 instance, consumer product marketing?
3 A. No, I never went to a business school in
4 marketing. I certainly have a lot of experience in
5 marketing in doing that work for my institution.
6 Running the Cancer Prevention Program, I basically set
7 up the marketing prevention programs for our
8 institute.
9 Q. Okay. You never had worked at a consumer
10 product company in marketing, is that right?
11 A. Correct.
12 Q. You've never studied consumer product
13 marketing at a business school, is that right?
14 A. Not at a business school. At Roswell
15 Park I've spent a good portion of my career studying
16 the marketing of tobacco products.
17 Q. And what you're an ex -- you're an expert
18 in smoking cessation, is that right?
19 A. Yes.
20 Q. Okay. Now, you have gotten grants that
21 enable you to spend time organizing and looking
22 through tobacco company documents, is that right?
23 A. Several.
24 Q. That's one of the things you testified
78
1 about this morning, is that right?
2 A. That's correct.
3 Q. And you're given a lot of money to go
4 through these documents and organize them so that
5 other people can use them, for instance, in lawsuits
6 and for other purposes, is that right?
7 A. How people use them is really up to
8 them. But, actually the purpose of most of my grants
9 have been to organize them for my own internal study.
10 Q. Well, you do provide documents, tobacco
11 company documents, to plaintiffs' attorneys, is that
12 right?
13 A. I have, yes.
14 Q. And you've provided to them on solicited
15 occasion, is that right?
16 A. Yes.
17 Q. Now, when you look at these documents,
18 Doctor -- well, strike the question. I think you said
19 this morning you haven't had a chance to look through
20 all the documents yet, is that right?
21 A. Well, there are 33 million pages of
22 material just on the industry web sites and then
23 another 23 million pages of material that I've
24 collected as part of the Tobacco Institute and CTR
79
1 collection. So, it's a lot of material. I have not
2 looked at every page.
3 Q. Okay. Thirty-three million documents is
4 a lot for anybody to look at, isn't that right?
5 A. That's right.
6 Q. Okay. And you haven't had the
7 opportunity to, for instance, look at every document
8 that any particular individual wrote while they were
9 at Philip Morris, is that right?
10 A. I think that's fair, yes.
11 Q. And you haven't had a chance to talk to
12 people at Philip Morris about the documents that they
13 wrote, is that right?
14 A. No. That's not right.
15 Q. Have you talked to -- let's just use a
16 name. Have you talked to Joseph Cullman?
17 A. No. I've read his deposition testimony
18 in this case, though, but I've not talked to him
19 personally.
20 Q. Okay. Have you had sit-down interviews
21 with any of these people, you yourself?
22 A. Yes.
23 Q. Okay. Have you had sit-down interviews
24 with, for instance, James Morgan?
80
1 A. No, not with Mr. Morgan. I have read his
2 deposition testimony.
3 Q. Would you agree with me that in order to
4 understand the context of a document, you need to
5 understand the whole situation that was going on at
6 the time, is that right?
7 A. I think it's helpful to have a good
8 understanding of the situation going on at the whole
9 time, yes.
10 Q. And sometimes documents can be taken out
11 of context if they're not viewed in their entirety, is
12 that right?
13 A. Sometimes.
14 Q. Okay. I want to ask you about a couple
15 of the documents that you put up in this last line of
16 direct that you had just to see -- this is Exhibit
17 37. I don't know. Do you have it, Doctor?
18 A. Yes, I do.
19 Q. This is the Frank Statement to cigarette
20 smokers. Now, this is a document you testify about a
21 lot, is that correct, Doctor?
22 A. I not only testify about it, but I've
23 written an article about the whole issue of the Frank
24 Statement and looking at the public and the internal
81
1 statements from all of the tobacco manufacturers in
2 relationship to this particular ad.
3 Q. Okay. Now, this was written in what
4 year?
5 A. This was written in 1954.
6 Q. And it was published as a newspaper
7 advertisement, is that right?
8 A. That's right.
9 Q. Do you know whether Michael Fruth read
10 this?
11 A. No, I don't.
12 Q. Do you know who Michael Fruth is?
13 A. One of the class members.
14 Q. Do you know whether he was born when this
15 came out?
16 A. I don't believe he was.
17 Q. Do you know whether Miss Price read this?
18 A. I don't know.
19 Q. Do you know whether Miss Miles read this?
20 A. I don't know.
21 Q. Do you know whether Miss McHatton read
22 this?
23 A. I don't know.
24 Q. Do you know whether Miss Witt read this?
82
1 A. I don't know.
2 Q. Do you know whether any member of this
3 class read this?
4 A. I don't know. But, it wouldn't really
5 matter, because the statements have been consistently
6 articulated by Philip Morris relevant to this Frank
7 Statement for nearly fifty years. That's what my
8 article was about.
9 Q. All I can ask you about is the documents
10 you put up in front, so let's talk about the document
11 that you put up in front. You didn't mean to imply by
12 putting this document up here that you know that any
13 particular member of this class saw this document, do
14 you?
15 A. No. The purpose of putting this up was
16 --
17 THE COURT: No. You answered it.
18 A. No.
19 Q. And you don't mean to suggest by putting
20 this document up that you can testify that any
21 particular member of this class bought Marlboro Lights
22 or Cambridge Light cigarettes in reliance on what was
23 said in this document? You don't mean to say that, do
24 you?
83
1 A. No. I'm sure that they bought them in
2 reliance to the Philip Morris advertising for that
3 brand.
4 Q. Well, when you say you're sure, Doctor,
5 have you talked to any of the five class
6 representatives?
7 A. Not directly, no.
8 Q. Have you talked to any class member?
9 A. No, I haven't.
10 Q. Okay. Now, let's look at the next
11 document. This was Plaintiff's Exhibit 38. This was
12 the one that was the remarks of Joseph F. Cullman, III
13 on June 7th, 1966. Do you have that one, Doctor?
14 A. I'll get it. Okay.
15 Q. Now, I don't believe -- and I may be
16 mistaken. I don't believe you read to the judge what
17 group this speech was given to. Would you read that
18 to the Court, please.
19 A. Well, actually I did read that, but it
20 was the South Carolina Tobacco Warehouse Association
21 Incorporated, Myrtle --
22 Q. Have you --
23 A. -- Beach, South Carolina.
24 Q. I'm sorry. Are you finished?
84
1 A. Yes.
2 Q. Okay. Have you done an investigation to
3 determine how many members of this class in this case
4 were members of the South Carolina Tobacco Warehouse
5 Association?
6 A. I haven't done that investigation, no.
7 Q. Do you have any reason to believe that
8 any of the class representatives -- that's the five
9 individuals I mentioned -- Price, McHatton, Miles,
10 Fruth, and Witt -- were members of the South Carolina
11 Tobacco Warehouse Association?
12 A. I haven't.
13 Q. Do you have any reason to believe that
14 they heard this speech?
15 A. This particular speech?
16 Q. Yes.
17 A. No.
18 Q. And do you have any reason to believe
19 that they used this speech as some kind of basis for
20 their decision to buy Marlboro Lights or Cambridge
21 Lights?
22 A. The particular speech?
23 Q. Yes.
24 A. No.
85
1 Q. And how about any other member of the
2 class? Do you have any reason to believe that any
3 member of the class used this speech as a basis for
4 purchasing Marlboro Lights or Cambridge Lights?
5 A. The particular speech? No.
6 Q. Okay. Do you know who the members of the
7 South Carolina Tobacco Warehouse Association are?
8 A. I do not.
9 Q. Did you not -- did you investigate that
10 before you came in to court or other courts to tell
11 people about what Philip Morris said to the public?
12 Did you investigate who the members of that Warehouse
13 Association are?
14 A. No. My interest in this document were
15 the comments from the president of Philip Morris to
16 see what he was saying about the issue of smoking and
17 health.
18 Q. But, who he was saying it to was not a
19 focus of your research, it was not a concern of yours,
20 is that right, Doctor?
21 A. Incorrect. I have done historical
22 studies and looked at many of Mr. Cullman's statements
23 over time, and sometimes his statements were in the
24 form of speeches to groups like this and sometimes
86
1 they were in the form of presentations done on places
2 like Face the Nation or a newspapers.
3 Q. And we're going to get to that, sir.
4 But, if you could limit --
11 Q. With respect to the document we were
12 looking at, Doctor, Exhibit 38, you didn't do the
13 research to figure out who the members of that
14 Association were, did you?
15 A. I did not.
16 Q. Now, you talked about the Face the Nation
17 transcript. That's Exhibit 39. Do you see that? I
18 got that back up on the screen.
19 A. Okay.
20 Q. This is the Face the Nation broadcast
21 transcript, I guess, from, it says January 3rd, 1971.
22 Do you see that?
23 A. That's right.
24 Q. Did Michael Fruth see that broadcast of
87
1 Face the Nation?
2 A. I don't believe so.
3 Q. Did Miss Miles?
4 A. I don't know.
5 Q. Miss McHatton?
6 A. I don't know.
7 Q. Miss Witt?
8 A. I don't know.
9 Q. Miss Price?
10 A. I don't know.
11 Q. Do you know with certainty, Dr. Cummings,
12 whether any member of this class saw that broadcast?
13 A. It's very likely that somebody did. It
14 could have --
15 Q. Could you name me --
16 A. -- been a member of this class.
17 Q. I'm sorry. I'm sorry. Are you done?
18 A. Yes.
19 Q. Can you name them for me?
20 A. No, I can't.
21 Q. You haven't done an investigation to
22 determine which members of this class saw this Face
23 the Nation broadcast, is that correct?
24 A. No, I haven't.
88
1 Q. Okay. So, then you don't know, Dr.
2 Cummings, do you, whether this broadcast affected the
3 decisions of any of the class representatives to
4 purchase Marlboro Lights or Cambridge Light
5 cigarettes, is that fair?
6 A. That this particular broadcast?
7 Q. That's what I said.
8 A. No.
9 Q. You don't know whether this particular
10 broadcast influenced the decisions of any member of
11 the class to purchase Marlboro Lights or Cambridge
12 Light cigarettes, is that fair?
13 A. Well, the broadcast was evidence --
14 Q. Can you answer my question, sir?
15 A. Not of this particular broadcast. But,
16 the statements were consistent --
17 Q. Thank you.
18 THE COURT: Okay. That's all he wants.
2 Q. Okay. This is -- I'll show you the
3 exhibit number just so we see it, Dr. Cummings.
4 Plaintiffs Exhibit 40. Do you see that?
5 A. Yes.
6 Q. And this was the document entitled
7 Smoking and Health 1964 to 1979, The Continuing
8 Controversy. Do you see that?
9 A. Yes, I do.
10 Q. That's a document that you put up earlier
11 today, is that right?
12 A. Yes.
13 Q. Do you know whether any of the class
14 representatives in this case saw that document?
15 A. I don't.
16 Q. Do you know whether that document was
17 circulated generally among the general public?
18 A. It was.
19 Q. Was it circulated to individuals outside
20 the public health arena?
21 A. Yes.
22 Q. Was it circulated to any individuals that
23 were members of this class in Illinois?
24 A. I don't know.
90
1 Q. Okay. Do you know whether any class
2 representatives saw this document?
3 A. This particular document?
4 Q. Yes.
5 A. No.
6 Q. I'm sorry?
7 A. No, I don't.
8 Q. Okay. Now, would you agree with me then,
9 Doctor, that you can't testify here today to any
10 potential effect that that document had on an
11 individual class member in this case and their
12 decision to purchase Marlboro Lights or Cambridge
13 Lights?
14 A. I disagree.
15 Q. Okay. Sir, what evidence do you have
16 that Michael Fruth saw this document?
17 A. I don't have evidence of that.
18 Q. What evidence do you have that Susan
19 Miles saw this document?
20 A. I don't have evidence of that.
21 Q. What evidence do you have that Miss
22 McHatton saw this document?
23 A. I don't have evidence of that.
24 Q. What evidence do you have that Miss Witt
91
1 saw this document?
2 A. I don't have evidence of that.
3 Q. And Miss Price?
4 A. Same answer.
5 Q. Okay. Same answer as far as all members
6 of this class go, is that correct?
7 A. To them seeing this specific document.
8 The document was indicative of the statements made by
9 Philip Morris.
10 Q. Well, that's just --
11 A. For fifty years.
12 Q. I'm sorry. I'm sorry. Did you finish
13 your answer?
14 A. Yes, I did.
15 Q. You haven't talked to any member of this
16 class about the allegations of this lawsuit, is that
17 right?
18 A. That's correct.
19 Q. So, when you say that you're talking
20 about this particular document, actually you don't
21 know about what any particular class representative
22 saw or didn't see with respect to the documents that
23 you put on the screen today, is that right?
24 A. Given that this --
92
1 Q. Can you answer that question?
10 A. Of specific members of the class that you
11 named, no, I don't about this specific document. The
12 document was selected, as I believe I testified, that
13 I have stacks of public news releases, of which this
14 is just one of the attachments to a news release that
15 was issued in 1979 by the Tobacco Institute, that
16 articulated the consistent position that smoking was
17 not proven to cause cancer. And that certainly did
18 have an effect on the class members in this case.
19 Q. Which class members?
20 A. All of them.
21 Q. Which ones? Which ones did you talk to
22 about that point?
23 A. Well, they're all smoking.
24 Q. Which one did you talk to about that
93
1 point, sir?
2 A. I haven't spoken to any of them directly.
3 Q. Okay. You also put this document up.
4 This is the one from Weissman to Cullman dated January
5 29th, 1964. And it has language about a psychological
6 crutch down here. Do you remember that?
7 A. Yes, I do.
8 Q. First of all, you are a tobacco
9 historian, is that right?
10 A. Well, I would say I'm a tobacco documents
11 historian at this point, yes.
12 Q. I'm sorry. Were you finished?
13 A. Yes.
14 Q. Okay. And I think you have said that
15 it's very important for people to understand the
16 context in which documents come up, is that right?
17 A. Yes.
18 Q. Because if you don't understand the
19 context, you might not understand the document, is
20 that right?
21 A. That's true.
22 Q. Now, in your historical work, this is a
23 document that you've run across numerous times before,
24 fair enough?
94
1 A. I have testified to this document before
2 and have cited to it, yes.
3 Q. And have you studied it carefully?
4 A. Yes.
5 Q. And have you studied the context in which
6 it was raised carefully?
7 A. Yes.
8 Q. Was Mr. Weissman the author of the
9 document?
10 A. It's not clear on this memo the To and
11 From, although if it follows the normal pattern, it
12 would be Mr. Weissman writing the document to Mr.
13 Cullman.
14 Q. Okay. So, it's either Mr. Weissman or
15 Mr. Cullman, is that right?
16 A. Mr. Cullman testified that he had
17 received the memo.
18 Q. Did you mean to imply to the Court that
19 either Mr. Weissman or Mr. Cullman coined the phrase
20 psychological crutch?
21 A. Yes.
22 Q. Okay. It's your testimony that Mr.
23 Weissman or Mr. Cullman came up with the word
24 psychological crutch at the time they wrote this
95
1 document?
2 A. I think the document speaks for itself.
3 Q. Well, no, no. That's not my question. I
4 agree the words are there. But, just so you
5 understand my question, Were they the first people --
6 first people to use that phrase? Is that your
7 testimony?
8 A. No.
9 Q. Who was the first to use that phrase in
10 the context of smoking and health, Doctor?
11 A. I don't know.
12 Q. Wasn't it the Surgeon General in 1964?
13 A. I don't know that.
14 Q. You haven't done that much research on
15 the context of this particular document, is that fair?
16 A. No, I've done a fair amount of -- I
17 disagree with that.
18 Q. Okay. Well, you -- I know. What I mean
19 is you haven't done enough research to determine
20 whether possibly the Surgeon General in 1964 used that
21 phrase?
22 A. I haven't done that specific research,
23 no.
24 Q. Okay. Now, Doctor, when you said that
96
1 this was a psychological crutch, I think -- was it
2 your testimony -- was it your testimony that the
3 psychological crutch was Marlboro Lights?
4 A. No.
5 Q. Okay. You testified that Marlboro Lights
6 was one of the psychological crutches, is that right?
7 A. Well, it certainly has been for smokers
8 today, yes.
9 Q. Okay. Well, incidentally, when you say
10 it has been, you haven't talked to any member of this
11 class about whether it was a psychological crutch, is
12 that right?
13 A. No, I haven't.
14 Q. You haven't talked to any of the class
15 representatives about that either, is that right?
16 A. I think we've established that.
17 Q. Okay. And you said -- well, just so the
18 record is clear, how many years -- how many years
19 after this document did Marlboro Lights come out?
20 A. It came out in 1971.
21 Q. Seven years?
22 A. Seven years.
23 Q. How many years after this document did
24 Cambridge Lights come out?
97
1 A. Cambridge Lights came out in 1985.
2 Q. Now, in your work as a tobacco historian
3 concerned with understanding the entire context -- the
4 entire context for how things happen, have you run
5 across the story of how Marlboro Lights came about?
6 A. Yes, I have.
7 Q. So, you know then, Doctor, you know that
8 Marlboro Lights came about after the City of New York
9 came up with a tax on tar, is that right?
10 A. Yes.
11 Q. They came up with a tax that was designed
12 to encourage tobacco companies to sell lower tar
13 cigarettes, isn't that right?
14 A. There was that proposal, yes.
15 Q. And it actually was enacted, wasn't it,
16 Doctor?
17 A. For a brief period, yes.
18 Q. Okay. Well, you found that in your
19 historical work, is that right?
20 A. Correct.
21 Q. And it was Mayor John Lindsay of New York
22 who said he wanted a tax that would encourage tobacco
23 companies to lower the tar levels in smoke.
24 A. It's a good idea.
98
1 Q. That's what he said, isn't it?
2 A. Yes.
3 Q. And the tar levels that he was talking
4 about were the tar levels as measured under the FTC
5 method, isn't that right?
6 A. I'm not sure if that's what Mayor Lindsay
7 was speaking of.
8 Q. Well, but, you know, because you're a
9 historian, you've looked at the context. You know
10 that the tax was based on the FTC tar yields, don't
11 you?
12 A. But, I think Mayor Lindsay was hoping
13 that we would reduce the actual tar delivery to the
14 smoker, because tar was the villain. Tar actually
15 increased the risk of disease.
16 Q. Sir, did you know -- I think my question
17 to you was Did you know that Mayor Lindsay proposed
18 and it was enacted into law that the tar levels would
19 be determined by the FTC method?
20 A. Yes.
21 Q. In fact, the FTC method is the only
22 measure of tar that has been approved by the United
23 States Government, is that right?
24 A. That's right.
99
1 Q. And you would suggest that the tobacco
2 companies do what the United States Government wants
3 it to do, wouldn't you, sir?
4 A. I would suggest that they do what they
5 promise to tell consumers originally.
6 Q. Can you answer my question? It was about
7 the Government, not the consumers. Can you answer my
8 question?
9 A. Could you repeat your question?
10 Q. You would suggest that the tobacco
11 companies do what the United States Government tells
12 them to do with respect to measuring tar units,
13 wouldn't you?
14 A. They have.
15 Q. Oh. They have?
16 A. Yeah.
17 Q. Okay. Consistently since 19 whatever --
18 1966, is that right?
19 A. Sixty-seven.
20 Q. Okay. Now, when Mayor Lindsay in New
21 York came up with this idea for the tax, what he did
22 was he imposed a tax that was higher based on the
23 higher levels of tar, isn't that right?
24 A. That's right.
100
1 Q. And that gave companies an incentive to
2 reduce the levels of tar so that the tax on their
3 cigarettes would be lower, isn't that right?
4 A. It would provide an incentive to do that.
5 Q. Okay. Well, you would agree that it did
6 provide an incentive, don't you?
7 A. It would provide an incentive to do that,
8 yes. You would have an advantage to sell the product
9 at a little less -- for a little less money.
10 Q. Let's look at this document. This is
11 Plaintiff's Exhibit 5. This was the document you
12 referred to that talked about the illusion of
13 filtration?
14 A. Correct.
15 Q. And I think -- I think what you said,
16 Doctor, and please correct me if I'm wrong -- or I'll
17 give you a second to find it, if you need to.
18 A. Go ahead. I'm pretty familiar with the
19 document. Go ahead.
20 Q. And correct me if I'm wrong again,
21 Doctor, because I've just taken notes as best I
22 could. But, I thought you said that this document
23 says it does not matter what the cigarette delivers.
24 Is that the gist of what you said about this document?
101
1 A. It basically says that the key here is
2 that consumers believe that the filtration works. So,
3 the illusion rather than the reality.
4 Q. Okay. Well, what it actually says is --
5 let's read the language. It says: The illusion of
6 filtration is as important as the fact of filtration.
7 Do you see that?
8 A. Yes.
9 Q. So, it's referring to filtration as being
10 a fact, is that right?
11 A. Well, it was a fact. Most of Philip
12 Morris' products at this time had filters.
13 Q. Okay. But, you're not trying to imply
14 that this document somehow says that filtration
15 doesn't work? Because that's not what the document
16 says, does it, Doctor?
17 A. No. This is talking about how to market
18 a potential of a health cigarette, and one way to do
19 that and one way that Philip Morris was doing that was
20 through its marketing of filtered cigarettes and
21 smokers' perception that the filtration would reduce
22 the bad stuff in cigarettes.
23 Q. Now, you said this morning, Doctor, I
24 think, that you're an epidemiologist, is that right?
102
1 A. I teach epidemiology.
2 Q. You do a lot of work in epidemiology on
3 tobacco issues, do you?
4 A. Yes, I do.
5 Q. Okay. So then, you're familiar, Doctor,
6 with the long history of epidemiology related to
7 cigarettes, is that right?
8 A. Yes.
9 Q. And nothing you said this morning meant
10 to deny the epidemiological studies concerning filter
11 and non-filtered cigarettes? You didn't mean to deny
12 that those studies had taken place, did you?
13 A. What studies are you referring to?
14 Q. Well, there's a -- you are aware that
15 there's a long history of studies of filter and
16 non-filter cigarettes in the epidemiology, aren't
17 you?
23 A. So, am I aware of studies on filtered and
24 non-filtered cigarettes? Yes.
103
1 Q. That there are epidemiological studies.
2 A. There are epidemiologic studies.
3 Q. And you're aware that right up until
4 recently it was thought by the scientific community
5 that those epidemiological studies showed that
6 filtered cigarettes were in fact less risky than
7 unfiltered cigarettes?
8 A. I don't know what you mean by recently.
9 Q. Well, let's just -- let's make it easy,
10 Doctor. Have there been epidemiological studies out
11 there that show -- epidemiological studies done by the
12 scientific community that show that filter cigarettes
13 are less risky than non-filter cigarettes?
14 A. Yes.
15 Q. And so, to the extent that consumers
16 thought that filters were a benefit in light
17 cigarettes, there was scientific support for that, is
18 that correct?
19 A. Not in 1966 when this document was
20 written. In fact, I believe that the Surgeon General
21 of the United States was questioned right after the
22 issuing of the '64 report about that very fact, and he
23 said there wasn't enough evidence. And that's why
24 they didn't include it in their report.
104
1 Q. I'm glad you raised that. Because
2 the '64 Surgeon General, after the report came out, he
3 expressed doubts about low tar cigarettes, didn't he?
4 A. Filtered cigarettes, I believe.
5 Q. Filtered cigarettes. And he talked
6 specifically about compensation, didn't he?
7 A. Among other things, the lack of studies
8 to show whether there was a benefit for filtration.
9 Q. But, one of the things he specifically
10 mentioned and was aware of was the possibility that
11 smokers could compensate when they smoked these
12 filtered cigarettes, right?
13 A. He did comment on that.
14 Q. And that was in -- right after he came
15 out with the report in 1964, he was aware of that
16 issue?
17 A. Well, actually to be specific, he said We
18 don't really know, so we need to do research. And
19 then of course what Surgeon General Reports are is
20 summaries of research. So, he was saying we need to
21 have a search on this because this could be a
22 possibility.
23 Q. Do you know -- have you done a study of
24 the class members in this case to determine whether
105
1 the illusion of filtration was important as the fact
2 of filtration to the class members in this particular
3 case?
4 A. To the particular members? You mean have
5 I talked to those specific members?
6 Q. Those are the parties in this lawsuit.
7 That's who I'm talking about.
8 A. I haven't talked to the members, but I've
9 done a --
10 Q. That's the answer to my question. Thank
11 you.
12 A. All right.
13 Q. And when I say class members, just to
14 make sure I'm being clear, you haven't talked to any
15 of the class representatives about whether the
16 illusion of filtration was as important to them as the
17 fact of filtration, is that right?
18 A. Not the specific members, no.
19 Q. This is -- I'll try and show you the
20 number here. It's Exhibit 43, Doctor. And it's the
21 one --
22 A. The Wakeham document?
23 Q. It's called Smoking and Health
24 Significance of the Report of the Surgeon General's
106
1 Committee to Philip Morris Incorporated.
2 A. Right.
3 Q. And is this the section that you read?
4 A. Yes, it is.
5 Q. The health val -- it goes -- it says:
6 The health value of filters is undersold in the report
7 and is the industry's best extant answer to its
8 problem. Do you see that?
9 A. Yes.
10 Q. When it's referring to the report, it's
11 referring to the Surgeon General's Report, is that
12 right?
13 A. Yes, it is.
14 Q. And the statement here is that a filter
15 is the best answer to the problem. And you take that
16 as meaning to the problem of tar being the culprit and
17 getting to smokers, is that right?
18 A. Actually I think he's referring to the
19 cancer and the health problems that have been linked
20 to cigarettes, if you read the early part of the
21 document.
22 Q. Okay. But, filters were what he thought
23 were the best answer to the problem of cancer, is that
24 right?
107
1 A. He says: The health value of filters is
2 undersold in the report and is the industry's best
3 extant answer to its problem. So, I think its problem
4 is the industry's problem.
5 Q. The industry's problem that its
6 cigarettes have been said by the Surgeon General to
7 cause cancer, right?
8 A. Exactly.
9 Q. And so, filters he viewed as a way to
10 help solve that problem? At least it's the best
11 answer to the problem at this point in time, is that
12 right?
13 A. Right.
14 Q. And that's what people were urging the
15 tobacco companies to do with their cigarettes, was put
16 filters on them at that point in time, is that right?
3 Q. But, we just talked about filters. We
4 talked about the epidemiology. There are studies out
5 there that show that filters were an answer in terms
6 of reducing the risk of cancer. The epidemiology
7 studies showed that, didn't they?
8 A. When?
9 Q. They showed it in -- how about one in --
10 do you remember one by Dr. Bross in 1968?
11 A. Irwin Brose is the name.
12 Q. I'm sorry. Mispronounced it. 1968?
13 A. Yes, I'm familiar with that study.
14 Q. And that showed that filters were -- had
15 reduced risk as compared to non-filter, is that right?
16 A. It suggested there might be a slight
17 benefit for people smoking a filtered cigarette rather
18 to one that was unfiltered.
19 Q. Incidentally, do you know -- have you
20 done any study -- well, have you talked to Michael
21 Fruth about whether he heard anything that Dr. Bross
22 or anybody else in the public health community said
23 about the relative risks of low tar cigarettes? Have
24 you asked Mr. Fruth that?
109
1 A. No, I haven't.
2 Q. Have you asked any other class
3 representative in the case that?
4 A. No, I haven't.
5 Q. Have you asked any member of this class
6 that question?
7 A. No, I haven't.
8 Q. Now, you also referenced attacks in
9 general -- attacks on the Surgeon General Reports, is
10 that right?
11 A. I'm not sure what you're referring to. A
12 tax on the Surgeon General's Reports?
13 Q. Well, maybe I misunderstood. You had a
14 big -- up there on -- big on the chart it said
15 Attacks, I thought.
16 A. Oh, attacks? I thought you said a tax.
17 Attacks.
5 Q. I'm talking about what you put up on the
6 screen. And I understand your confusion. But, you
7 had up on the screen there were attacks,
8 a-t-t-a-c-k-s, on it.
9 A. I'm sure Philip Morris would like a tax
10 on the Surgeon General's Reports. But, yes, I know
11 what you're talking about.
15 Q. And the attacks on the Surgeon General's
16 Reports that you made reference to, I think you said
17 there were numerous press releases, is that right?
18 A. Press releases, press conferences that
19 were held, various pamphlets that were produced around
20 the times of Surgeon General's Reports being issued,
21 to basically talk about the industry's concerns about
22 some of the conclusions in those reports. The main
23 conclusions in all of those reports is that smoking is
24 an important source of cancer, cause of cancer, as
111
1 well as other diseases.
2 Q. Okay. Well, let's bring it back to this
3 case, Doctor.
4 A. Sure.
5 Q. Those attacks, let's take them as a
6 group. All those attacks on the Surgeon General's
7 Reports, all those press releases, did Michael Fruth
8 see one of them?
9 A. I don't know.
10 Q. Did any of the class representatives see
11 a single one of those?
12 A. See any of the attacks?
13 Q. Yes.
14 A. I suspect they probably did, because they
15 were made almost every year and they were widely
16 publicized.
17 Q. Well, I'm not asking what you suspect.
18 I'm asking what you know. Do you know whether any
19 other class representatives saw any of these attacks?
20 A. I don't -- I haven't spoken with any of
21 the class members.
22 Q. Okay. And I was asking about class
23 representatives in that instance. But, you'll agree
24 that for the entire class, you haven't spoken to any
112
1 of them about whether they saw any of these attacks?
2 A. No, I haven't personally.
3 Q. Now, I think you talked about quitting
4 for a while, didn't you?
5 A. Yes, I did.
6 Q. And you run a smoking cessation clinic,
7 is that right?
8 A. Yes, I do.
9 Q. Okay. And with respect to quitting -- if
10 I can find my note, Doctor -- you mentioned that there
11 was a theory that people could work their way towards
12 -- I'm paraphrasing, and if you're uncomfortable with
13 the way I word it, please tell me -- but, work their
14 way towards quitting by switching down, and I think
15 you used the term nicotine fading, is that right?
16 A. That was the term I used, yes.
17 Q. Now, first of all, do you know whether
18 any member of this class switched down to Marlboro
19 Lights for the purpose of nicotine fading?
20 A. For that explicit purpose, no.
21 Q. Okay. Do you know whether any member of
22 this class -- well, let's ask this question: Do you
23 know -- we're talking about Marlboro Lights and
24 Marlboro Regulars is part of what we're talking about
113
1 in this case, is that right?
2 A. That's right.
3 Q. Do you know if any of the class
4 representatives, do you know personally, switched from
5 Marlboro Regular to Marlboro Lights?
6 A. I believe some of them did, as I recall
7 reading some of the --
8 Q. My question is Do you know?
9 A. I'm recalling that some of them did.
10 Q. Okay. Do you know how many did?
11 A. I don't.
12 Q. Do you know how many people across the
13 class switched from a higher tar brand to a lower tar
14 brand?
15 A. Well, none of them, because they're
16 equivalent in terms of actual tar delivery.
17 Q. Okay. Well, we'll just make it easier
18 for you, Doctor. We'll talk about the FTC, whether
19 high tar or low tar under the FTC method. Do you
20 understand that?
114
1 Q. I'll ask you the question again, Doctor.
2 I'm talking about high tar and low tar as measured by
3 the FTC method. Are we on the same page here?
4 A. Okay.
5 Q. Do you know how many members of the class
6 switched from a high tar cigarette to a low tar
7 cigarette?
8 A. Not the exact number, no.
9 Q. Well, do you have any number for this
10 particular class of people?
11 A. Well, I have numbers nationally, because
12 we've looked at it in my own data. And to the extent
13 that my own data is relative to this class --
14 Q. I'm asking about this class. I want to
15 know what evidence you brought to this courtroom about
16 this class and the number of people in this class that
17 switched from a higher tar cigarette to a lower tar
18 cigarette.
19 A. It's a very -- I don't have an exact
20 percentage.
21 Q. Okay. Do you know how many people in
22 this class switched from a non-Philip Morris brand to
23 a Philip Morris brand?
24 A. I have studies that I have done on that
115
1 very topic, again national.
2 Q. And my question is this class. This is a
3 case about this class. You understand that?
4 A. I understand.
5 Q. Okay. And so, I want to know how many
6 people in this class switched from a non-Philip Morris
7 brand to a Philip Morris brand?
8 A. Generally people stay within the company.
9 Q. Well, no. Remember I'm not talking
10 generally. I'm talking about this class. Can you
11 tell me how many people in this class moved from a
12 non-Philip Philip Morris brand to a Philip Morris
13 brand?
14 A. The specific number, no.
15 Q. You don't know?
16 A. Well, you know, that question is very
17 broad, because you go over a long period of time and
18 ask that question.
19 Q. Well, that's right. It's a long period
20 of time. And your experience is that over a long
21 period of time smokers switch brands?
22 A. Yes. And over a long period of time
23 there's been a very big switch in terms of people
24 going from high tar to low tar cigarettes. In fact,
116
1 today over 87 percent of people who are purchasing
2 cigarettes are purchasing cigarettes in the low tar
3 category, and Marlboro Lights is the number one
4 selling low tar cigarette.
10 Q. Doctor, you know from your own experience
11 those people that you talked about whenever -- when
12 Mr. Brickman was asking questions, those people you
13 know switch brands frequently, is that right?
14 A. That's incorrect.
15 Q. Well, you know that people switch brands,
16 don't you?
17 A. Yes, I do.
18 Q. And you know that whether somebody
19 switches brands -- well, let's strike the question.
20 You know that somebody's smoking history -- maybe I
21 should step back a second. What do you understand by
22 the term smoking history?
23 A. Well, my use of the term smoking history
24 is when you ask somebody about the age when they
117
1 started to smoke, how much they were smoking at a
2 particular age, what brand, whether they made quit
3 attempts, how they did that. It's an array of things
4 that you ask about.
5 Q. And based on your experience dealing with
6 smokers, that smoking history varies from individual
7 smoker to individual smoker, is that right?
8 A. Well, I don't know what you mean. Is
9 there variation across the population of smokers?
10 Yes.
11 Q. Well, isn't that just logical, Doctor,
12 that there's variation across the population of
13 smokers?
14 A. I don't know if it's logical. We've
15 looked at it. There's some variation across smokers
16 in terms of their smoking history.
17 Q. Well, what I'm getting at, Doctor, is you
18 -- if I just said I've got a smoker standing in the
19 back of the room, you couldn't just look at that
20 person and tell me his smoking history, could you?
21 A. No.
22 Q. You would need to talk to them, wouldn't
23 you?
24 A. Yes.
118
1 Q. You would need to get information from
2 each individual smoker about what their smoking
3 history was, is that right?
4 A. For what purpose?
5 Q. If you wanted to know their smoking
6 history.
7 A. Well, I mean, one of the ways you can --
8 Q. Can you answer that question?
19 Q. Dr. Cummings, for an individual -- to
20 know whether any individual smoker -- my hypothetical
21 smoker in the back of the room. To know what that
22 person's smoking history was, you would need to talk
23 to them, wouldn't you?
24 A. Well, the hypothetical smoker, you know,
119
1 you can estimate from surveys that are done knowing
2 about people's smoking --
3 Q. Okay.
4 A. -- histories in general to get an idea of
5 what the likelihood of that particular smoker smoking
6 a given brand, or how long they've smoked, or efforts
7 that they've made to quit. That's what we do with our
8 surveys.
9 Q. Okay, fair enough. Well, let me change
10 it from a hypothetical smoker. I've got a class
11 member back there in the corner of the room. That
12 class member standing up there, you couldn't tell me
13 that person's smoking history without sitting down and
14 talking to that individual, is that right?
15 A. Well, that particular class member,
16 that's true. But, if you lump them altogether as a
17 population, if you did these surveys, you would have a
18 very good idea of what the smoking histories would be
19 of individual class members.
20 Q. And you haven't sat down and talked with
21 any class member in this case about their smoking
22 histories, is that right?
23 A. I haven't done that, no.
24 Q. Now, you talked a lot about Philip
120
1 Morris' position on causation and creating doubt. Do
2 you remember that testimony?
3 A. They did, yes.
4 Q. Okay. Now, I want to bring that back to
5 this case, Doctor. Have you talked to any of the
6 class members about what they thought about the link
7 between smoking and disease?
8 A. The individual members? No.
9 Q. Okay. Are you aware, Doctor, that in
10 this case every class representative has testified
11 that they were fully aware that smoking caused
12 disease?
13 A. I wouldn't be surprised by that.
14 Q. But, you don't know it yourself
15 personally, is that right?
16 A. I haven't talked to them directly.
17 Q. Okay. And you don't know the answer --
18 you don't know what the class as a whole thought about
19 smoking and disease and the causation question, is
20 that right?
21 A. Well, again, based on my studies of
22 populations of smokers and my dealing with thousands
23 of smokers over the years, I have a pretty good idea
24 of what smokers know and believe.
121
1 Q. Well, you understand I'm talking about
2 this class. And I want to know, do you -- can you
3 tell me what any individual member of this class
4 believed about the causation issue that you talked
5 about here today?
6 A. When?
7 Q. Any individual smoker.
8 A. Any individual smoker --
9 Q. In this class.
10 A. Yeah. These specific individuals I
11 haven't spoken to. The population in general, yeah, I
12 can tell you what --
13 Q. My question was on the individual members
14 of this class. This is a case about this class. You
15 understand that, Doctor?
16 A. I understand that.
17 Q. Okay. Now, we were talking about
18 quitting -- or I started to talk about quitting. And
19 you said, I think -- we were talking about that
20 nicotine fading idea.
21 A. Right.
22 Q. And you said that physicians and nurses
23 were at least partly responsible for suggesting that
24 to patients, if I understood your testimony correctly,
122
1 is that right?
2 A. That's correct.
3 Q. Okay. Philip Morris never told smokers
4 that they could nicotine fade as a way of quitting, is
5 that right?
6 A. My understanding is that Philip Morris
7 has not provided advice about quitting smoking.
8 Q. Okay. Did that mean that Philip Morris
9 never told smokers that they could quit by nicotine
10 fading, is that right?
11 A. My understanding is that Philip Morris
12 hasn't provided advice about smoking cessation.
13 Q. Can you just answer my question, sir?
14 A. Well, to the extent that that would be
15 advice about smoking cessation, Philip Morris hasn't
16 provided that advice.
17 Q. And do you consider that advice about
18 smoking cessation?
19 A. Well, it's implicit in your advertising
20 low nicotine.
21 Q. We'll get to -- I'm going to get to those
22 ads. Don't worry about that. I'm going to get to
23 those ads. But, Philip Morris has never --
24 A. Not only that, it's right on the pack.
123
1 It says lower in tar and nicotine.
2 THE COURT: No, no. He's asking the
3 question. Please, just listen to the question.
4 Q. Philip Morris has never told smokers that
5 they could quit through nicotine fading, is that
6 right?
7 A. I don't think they've used specifically
8 nicotine fading. But, to the extent that people
9 understand that one of the difficulties in quitting is
10 their addiction to nicotine, saying that it's lower in
11 nicotine would imply that it would be easier to quit.
12 Q. Okay.
13 A. And that's what in fact I've learned from
14 talking to smokers who have switched to light
15 cigarettes, lower in tar and nicotine.
16 Q. But, not by talking to smokers in this
17 class in this case, is that right?
18 A. That's correct.
19 Q. You haven't talked to any of the class
20 representatives about this concept of nicotine fading,
21 is that right?
22 A. That's correct.
23 Q. And you haven't talked to any of the
24 class members as a whole about nicotine fading, is
124
1 that right?
2 A. Just to the extent that my own research
3 of smokers in general. But, the specific members of
4 this class, no.
5 Q. And you're not suggesting to the Court
6 that everybody who smokes light cigarettes is doing so
7 because they're trying to do this nicotine fading, are
8 you?
9 A. No, I didn't suggest that.
10 Q. Okay. And in fact, the thought that
11 switching to low tar cigarettes might be a way of
12 quitting was something that was promulgated not just
13 by doctors and nurses, but by the public health
14 community. Wouldn't you agree with that?
15 A. Well, mainly it was promulgated by Philip
16 Morris, who was promoting lower tar and nicotine.
17 But, it certainly was discussed in the public health
18 community. I wrote a chapter in the Surgeon General's
19 Report that talked about smoking cessation and
20 nicotine fading.
21 Q. Here's my question, sir. My question to
22 you is -- let me be very specific: Did organizations
23 like the American Cancer Society suggest that it would
24 be easier to quit from low tar cigarettes?
125
1 A. Yes. They were deceived also.
5 Q. Now, Doctor, when you talked about --
6 well, you treat -- I think you said you treat smokers
7 of Marlboro Lights and Cambridge Light cigarettes?
8 A. Yes. Marlboro Lights is probably the
9 most common brand of cigarettes that we see people
10 smoking today.
11 Q. And you even out there in Buffalo with
12 the group of people you work with haven't done any
13 analysis of cessation rates for people who smoke
14 Marlboro Lights or Cambridge Light cigarettes, is that
15 right?
16 A. It's incorrect.
17 Q. Have you noticed any difference in the
18 cessation rate of Marlboro Light cigarette smokers and
19 Cambridge Light cigarette smokers as opposed to any
20 other cigarette smokers in your cessation clinic?
21 A. In my clinic, no.
22 Q. Okay. And it's true that you haven't
23 systematically looked at that question, is that right?
24 A. Incorrect.
126
1 Q. Well, let me ask you if you gave this
2 answer to the question in this case. Page 33 of your
3 deposition here.
18 Q. Doctor, page 33.
6 Q. Starting at line 13.
7 "Have you noticed any difference in the
8 cessation rate of Marlboro Light
9 cigarette smokers and Cambridge Light
10 cigarette smokers as opposed to any other
11 cigarette smokers in your cessation
12 clinic?"
13 And you answered:
14 "I've not done such an analysis to know."
15 Next question:
16 "But, anecdotally have you noticed any
17 difference?
18 I haven't systematically looked at it, so
19 I really can't comment."
20 Is that the answer you gave at your
21 deposition?
20 Q. Was that the answer you gave at your
21 deposition in this case?
22 A. Yes, that was the answer in reference to
23 the question about the attendees of my stop smoking
24 clinic. But, I answered your question here in
129
1 reference to the studies that I have done. And I have
2 looked at systematically whether smokers of Marlboro
3 Lights are any more or less likely to quit smoking
4 than smokers of other brands, including full flavor
5 brands, including Marlboro Red.
6 Q. Is this your unpublished study?
7 A. It's unpublished at the present time.
8 Q. And you haven't given any --
9 A. It's in press. I mean, it's gone through
10 peer review. It's been accepted for publication.
11 Q. Well, that's fine, Doctor. But, you
12 haven't given it to me, is that right?
13 A. It was on my CV I believe at the time.
14 Q. Did you give me a copy of it, Doctor?
15 A. Yes, I probably would have provided it.
16 Q. Are you sure you gave me a copy, Doctor?
17 You're under oath now. Are you sure you gave me a
18 copy?
19 A. I'm not absolutely sure I gave you a
20 copy. I'm not sure that it was asked for.
8 Q. Well, at any rate -- at any rate, Doctor,
9 have you systematically studied Marlboro Lights and
10 Cambridge Light smokers in Illinois?
11 A. Not in Illinois, no.
12 Q. Have you systematically studied the
13 Marlboro Lights and Cambridge Light smokers that are
14 the class representatives in this case?
15 A. Not the specific ones in this case.
16 Q. Have you systematically studied the
17 Marlboro Lights and Cambridge Light smokers who were
18 the members of the class in this case?
19 A. No. Not in this case.
20 Q. And you would agree, Doctor, that
21 quitting smoking -- I think you said that smoking is
22 addictive, is that right?
23 A. It is.
24 Q. It's not addictive to every smoker, is
131
1 that right?
2 A. That's true.
3 Q. It depends on the individual smoker, is
4 that right?
5 A. It depends on whether they're smoking a
6 cigarette with nicotine in it.
7 Q. Well, there are some smokers, even
8 smokers smoking cigarettes with nicotine in it, that
9 aren't addicted? You would agree with that, wouldn't
10 you?
11 A. Yes.
12 Q. And to determine whether any individual
13 smoker is addicted, you would need to talk to that
14 smoker, is that right?
15 A. To know whether they're addicted? Not
16 necessarily, no.
17 Q. Well, you would need information on that
18 individual smoker, is that right?
19 A. It would help to have -- if you wanted to
20 make a specific claim about that individual, yes.
21 Q. It would help to talk to the individual
22 or get some information about the individual?
23 A. But, a class you could understand just
24 generally from surveys.
132
1 Q. Have you talked -- have you talked to any
2 of the class representatives in this case about their
3 addiction or lack of addiction to smoking?
4 A. This specific class members here? No.
5 Q. Okay. In order to determine whether any
6 one of them, any individual one of them, is addicted,
7 you would need to talk to them, or at least get
8 information about that individual, isn't that true,
9 Doctor?
10 A. No. I think it's pretty safe to say that
11 smokers who are smoking on a daily basis are
12 addicted. I think that's what I testified to in the
13 past. And that information is available from public
14 sources here in Illinois. I believe the State of
15 Illinois does surveys every year of smokers. So,
16 there are ways of getting the information on class
17 members here.
18 Q. Well, Doctor, you're not a medical
19 doctor, right?
20 A. No, I'm not.
21 Q. You work with medical doctors, though?
22 A. Yes, I do.
23 Q. And you know that medical doctors as a
24 group would prefer not to diagnosis somebody without
133
1 having some information about that individual, right?
2 A. Yes.
3 Q. Okay. And you don't have any quibble
4 with the fact that if you were going to diagnosis
5 somebody as addicted, you ought to have information
6 about that individual? You don't quibble with that,
7 do you?
8 A. Well, it would be nice to have the
9 information, but I could certainly make an inference
10 about the proportion of individuals who are addicted
11 in -- who are smokers here in the state of Illinois
12 from surveys without having to talk to those
13 individuals directly.
14 Q. I'm not talking about inferences,
15 Doctor. I'm talking about the individuals that are in
16 this class. If you wanted to tell this Court that any
17 one of those indiv -- let's take Mr. Fruth, for
18 instance. If you wanted to tell this Court from the
19 witness stand that Mr. Fruth was addicted, you would
20 need to talk to him and get information about him,
21 wouldn't you?
22 A. Not necessarily talk to him directly, but
23 get some information about him, sure.
24 Q. You're agreeing with the information part
134
1 of this?
2 A. Sure.
3 Q. Okay. So, you're not in a position as
4 you sit here today to tell this Court that any
5 particular individual that's a member of this class
6 was addicted, is that right?
7 A. No.
8 Q. Okay. Now, with respect to quitting, you
9 said it could be very difficult to quit, is that
10 right?
11 A. It is difficult to quit, right.
12 Q. But, even that, there's some variation
13 among smokers, isn't that right?
14 A. Yes.
15 Q. Some people can do it cold turkey?
16 A. That's right.
17 Q. Some people can't do it no matter how
18 many times they try, is that right?
19 A. That's right.
20 Q. And some people need the help of a clinic
21 like yours?
22 A. That's correct.
23 Q. Some people can look at a videotape that
24 they get from a company that helps them get over the
135
1 habit or the addiction to smoking, is that right?
2 A. I don't know what you're referring to,
3 but I'll take it.
4 Q. I'll withdraw that then, Doctor. But, in
5 terms of people quitting, there are certain things
6 that you consider very important characteristics of
7 people who are quitting, right?
8 A. That's right.
9 Q. One of them is a sincere desire to quit,
10 is that right?
11 A. Correct.
12 Q. And you can't assess whether somebody has
13 a sincere desire to quit unless you talk to that
14 person, is that right?
15 A. Incorrect.
16 Q. Okay. Well, do you know whether Michael
17 Fruth, for instance, has a sincere desire to quit
18 smoking?
19 A. I don't. I haven't talked to Michael.
20 Q. You would need to talk to him in order to
21 make that assessment, wouldn't you?
22 A. No. I could get information about his
23 smoking behavior from interviews or reading about his
24 past efforts of quitting. Regardless, the actions
136
1 speak louder than words.
2 Q. Well, at a minimum you would want
3 information about Mr. Fruth, is that right?
4 A. Yes.
5 Q. And at a minimum, to determine whether
6 any member of this class would have the capacity to
7 quit, you would want to get information about those
8 members of the class, is that right?
9 A. What do you mean by the capacity to quit?
10 Q. Well, in order to assess, for instance,
11 the sincerity of their desire to quit, you would need
12 to talk to the individual members of the class, is
13 that right?
14 A. Sure.
15 Q. Okay. And just by the fact that we're
16 talking about somebody's -- the sincerity or the
17 desire to quit as being an important factor in
18 quitting, you're saying that there's a variation among
19 people as to how sincere they are about wanting to
20 quit smoking, is that right?
21 A. No. I think there what I was saying is
22 you have to be motivated to quit smoking.
23 Q. Well, not everybody is equally motivated
24 to quit smoking, is that right?
137
1 A. I think that's fair.
2 Q. Okay. Now, Doctor, actually the state of
3 the academic literature on quitting is that no studies
4 have adequately assessed whether health claims used to
5 market reduce yield products delay cessation among
6 smokers who might otherwise quit or increase
7 initiation or relapse among non-smokers. That's the
8 state of the academic literature, isn't it?
9 A. I think that's not a fair
10 characterization of the literature.
11 Q. Okay. Let me show you --
12 MR. LOMBARDI: 4495, please.
13 Q. Doctor, this is -- well, I guess one
14 thing I didn't ask you about. You are the Deputy
15 Editor of a publication called Tobacco Control, is
16 that right?
17 A. That's correct.
18 Q. And Tobacco Control is a publication
19 devoted to articles about tobacco, is that right?
20 A. The science of tobacco control, public
21 health science of tobacco control.
22 Q. And what I've put up on the screen is an
23 article that was written and published in 2001 from
24 Tobacco Control, is that right?
138
1 A. Yes, one of our supplements.
2 Q. Did you review this article before it was
3 published?
4 A. I did not.
5 Q. Did you see it once it was published?
6 A. Yes, I have.
7 Q. Okay. And it was written by Michael
8 Thun. Do you know him?
9 A. Yes, I do.
10 Q. And do you know him to be somebody who is
11 on plaintiff's expert list in this case?
12 A. I believe he is, yes.
13 Q. And David Burns, do you know him?
14 A. Yes, I know Dr. Burns.
15 Q. And do you know him to be somebody who is
16 on plaintiff's expert list in this case?
17 A. Yes.
18 Q. Could you turn to 4495.6, please. That
19 would be the last page of the article, page 19.
20 A. It's not 19. It's i9. We use i for
21 supplements.
22 Q. All right. I couldn't tell that, but I
23 appreciate the clarification.
24 MR. LOMBARDI: Could you highlight that line,
139
1 please.
2 Q. Did this article in your journal, Tobacco
3 Control, say: No studies have adequately assessed
4 whether health claims used to market reduced yield
5 products delay cessation among smokers who might
6 otherwise quit or increase initiation or relapse among
7 non-smokers? Did that sentence appear in this article
8 in your journal?
9 A. Yes, it did.
10 Q. And that was in 2001?
11 A. Actually it's not my journal. It's a
12 journal published by the British Medical Association.
13 Q. I appreciate your modesty. But, the
14 journal you work for, correct?
15 A. Yes.
16 Q. The journal you're on the editorial staff
17 of?
18 A. That's right.
19 Q. And it published this particular line, is
20 that right?
21 A. It did.
22 Q. Doctor, not all -- I'm sorry, Doctor.
7 Q. Doctor, not all smokers of light
8 cigarettes perceive their cigarettes to be safer,
9 isn't that correct?
10 A. Incorrect.
11 MR. LOMBARDI: Page 253.
12 Q. Do you have page 253, Doctor?
13 A. I'm getting there. Got it.
14 Q. Line 18. Were you asked this question
15 and did you give the following answer at your
16 deposition in the Mehlman case under oath:
17 "But, not all smokers of light cigarettes
18 perceive their cigarettes to be safer,
19 isn't that correct?
20 ANSWER: That's true."
21 Did you give that answer to that question
22 under oath at the Mehlman deposition?
23 A. I did.
24 Q. And, sir, it's true that the perception
141
1 of what the word lights means is an individual
2 perception that changes from smoker to smoker, isn't
3 that correct?
4 A. It is correct. And it also connotates --
16 Q. Okay. Now, Doctor, you made some
17 statements that I think -- did you say there's no
18 reason to believe that there could be regional
19 differences among smokers in terms of their attitudes
20 towards smoking? Is that part of your direct
21 testimony?
22 A. Generally there are not large
23 differences, and the experience that I've had working
24 with smokers and their beliefs about light cigarettes
142
1 would be the same in Buffalo as they would be here in
2 Illinois.
3 Q. Well, now you're saying generally there
4 would be no large differences.
5 A. I don't believe there would be large
6 differences.
7 Q. Could there ever be differences? Could
8 there ever be regional differences?
9 A. In what?
10 Q. In smokers' attitudes toward smoking.
11 A. What attitude?
12 Q. Any attitude. I'm being broad, and I'll
13 narrow it down after that. But, could there be
14 differences in smokers' attitudes towards smoking?
15 A. Ever? Probably.
16 Q. Could there ever be regional differences
17 among groups of smokers in their attitudes towards
18 smoking?
19 A. It depends on what regions you're looking
20 at, but, yes, there might be.
21 Q. Have you done any research and analysis
22 in this case about the class from this region of the
23 country and whether there are any differences between
24 this class and this region and other regions of the
143
1 country?
2 A. Yes.
3 Q. Have you done any research at all that
4 involved you talking to any member of this class?
5 A. Specific members of this class, I mean,
6 may have. We do national surveys all the time. I'm
7 sure people in Illinois show up in our surveys that we
8 do. And we have looked at variation regional
9 differences in some of the attitudes and beliefs about
10 things like lights cigarettes, low tar cigarettes, and
11 we don't see differences. That's what I was referring
12 to.
13 Q. And I understand that you're referring to
14 in a general sense. But, my question is very
15 specific. Have you done a study of this class to
16 understand whether this class perceives the words
17 lights and lower tar and nicotine the same way as all
18 other regions of the country?
4 A. We've looked for regional differences and
5 variation in attitde and beliefs about light
6 cigarettes, and I have not seen it in any of my
7 research. And that's how I would answer the
8 question. And to the extent that, you know, Illinois
9 would somehow be different than all the other
10 variations that we've looked at, I would say that's
11 very unlikely.
12 Q. Well, I'm not asking --
13 A. So, in my professional opinion I would
14 not expect to see differences.
15 Q. I'm not asking whether you think it's
16 likely or unlikely. I'm asking whether you've done a
17 study that involves this class that tells you whether
18 the people in this class perceive light and lower tar
19 and nicotine differently from anybody else?
20 A. They wouldn't.
21 Q. Have you done a study of this class?
22 A. Yes, I've looked at the regional
23 variation I've just described.
24 Q. Which people in this class have you
145
1 talked to, Doctor?
2 A. Well, I don't know the names
3 particularly, because we do our studies anonymously.
4 We don't ask the names of people.
5 Q. Tell me which members of this class
6 you've spoken to.
7 A. I couldn't give you a name.
8 Q. Have you spoken to Michael Fruth?
9 A. I haven't.
10 Q. Have you spoken to Price?
11 A. I haven't.
12 Q. Miss McHatton?
13 A. I haven't.
14 Q. Miss Miles?
15 A. I haven't.
16 Q. Miss Witt?
17 A. I haven't.
18 Q. Would you agree with me that you've done
19 no study of those five class representatives on this
20 point?
21 A. I would agree.
22 Q. Would you agree with me that you've not
23 sat down and specifically gotten all the class members
24 in this case and talked to them about their perception
146
1 of lights or lower tar and nicotine?
2 A. I've read some of their statements.
3 Q. Okay.
4 A. Initially in the case.
5 Q. Well, you know that --
6 A. They're consistent with my opinions.
7 Q. And you understand that not every class
8 member in this case has given a deposition or a
9 statement, is that right?
10 A. Yes.
11 Q. And so, you haven't spoken to people who
12 weren't class -- who haven't given a deposition in
13 this case, is that right?
14 A. That's correct. Perhaps.
15 MR. LOMBARDI: That's the answer.
16 Q. Now, back to this question about regional
17 differences. You're aware, aren't you, Doctor, that
18 there is literature, academic public health literature
19 out there, that shows that there may well be
20 differences in the way people view the health effect
21 of light cigarettes?
22 A. I don't know what you're referring to.
23 Q. Well, do you keep up on the literature on
24 these regional differences between groups of people?
147
1 A. On tobacco?
2 Q. Yes.
3 A. I keep up on the literature on tobacco
4 control, absolutely.
5 Q. Okay. Do you keep up with the work of
6 Lynn Kozlowski?
7 A. I'm familiar with his work.
8 Q. Okay. Are you familiar with an article
9 he's written entitled Massachusetts' Advertising
10 Against Light Cigarettes Appears to Change Beliefs and
11 Behavior?
12 A. Yes, I am.
13 Q. Well, let's give you a copy of it.
14 MR. LOMBARDI: Doctor, I take that back.
15 This is 4089. I apologize, your Honor. Counsel, this
16 is one with the Exhibit Number on it, 4089.
17 MR. BRICKMAN: Thank you.
18 Q. This is an article that was written by
19 Lynn Kozlowski in 2000, the year 2000, is that right?
20 A. Yes.
21 Q. And it's from the American Journal of
22 Preventive Medicine, is that right?
23 A. Correct.
24 Q. And Lynn Kozlowski you know to be one of
148
1 the authors of NCI Monograph 13, is that right?
2 A. Yes.
3 Q. Okay. And if you go back to page 341,
4 there's a chart at the top of the page. Do you see
5 that?
6 A. Yes.
7 Q. And the chart says Responses to key
8 questions in the United States excluding Massachusetts
9 and Massachusetts as a function of reports of having
10 seen ad against low-tar cigarettes. Do you see that?
11 A. That's right.
12 Q. And the first question is: Compared to
13 regular cigarettes, would smoking light cigarettes
14 increase, decrease, or have no effect on your risk of
15 having health problems. Do you see that?
16 A. Right.
17 Q. Okay. And do you see that the answer for
18 the United States is 32?
19 A. Right.
20 Q. And the answer for Massachusetts all is
21 18?
22 A. Yes. But, it would be inappropriate to
23 use the all.
24 Q. Well, are you aware that Dr. Connelly has
149
1 testified about this? Have you talked to Dr. Connelly
2 about this?
3 A. No.
4 Q. Do you know that he considers that a
5 statistically significant difference?
14 Q. Well, let me ask you this: It does show
15 different numbers for United States and Massachusetts,
16 is that right?
17 A. Well, not really. When you look at the
18 No Ad group and the United States, they're very
19 similar, 32 and 28. The 12 percent that saw the ad --
20 this was actually responding in the study about
21 evaluating how people respond to an advertising
22 campaign that was specifically intended to give
23 smokers of light cigarettes information about the fact
24 that light cigarettes really weren't light and low
150
1 tar. And the all, which is why I mentioned the all
2 would be inappropriate to look at, is the combination
3 of those two groups. So, there's not a whole lot of
4 difference between the United States and
5 Massachusetts, 32 and 38 percent on that.
6 Q. And you've seen this survey before?
7 A. Yes, I have.
8 Q. And you accept it as a valid survey?
9 A. Yes.
10 Q. Would you agree with me, Doctor, that
11 only 32 percent of the people in the United States
12 said that compared to regular cigarettes, smoking
13 light cigarettes would have an effect on your health
14 problems?
15 A. That's what that says, yes.
16 Q. And it says the percent -- and the
17 percentage is the ones answering that it would show a
18 decrease in your health problems, right?
19 A. That's right.
20 Q. So, it says Compared to regular
21 cigarettes, 32 percent of the people in the United
22 States agree that smoking light cigarettes would
23 decrease the risk of having health problems, is that
24 right?
151
1 A. That's what it says.
2 Q. And 32 percent is less than 100 percent,
3 is that right?
4 A. Yes. But, my experience is that people
5 also --
9 Q. Doctor, do you know which 32 percent of
10 the members of this class perceive lights as
11 decreasing their health risks?
12 A. Member of this class and all members of
13 Marlboro Lights and Cambridge Lights believe it's
14 safer in my opinion.
15 Q. You don't know that? You haven't talked
16 to them, is that right?
17 A. I haven't talked to the specific members.
18 Q. But, if I apply that 32 percent number to
19 this class, I just want to confirm, you can't tell me
20 which 32 percent of the class perceived it as having a
21 positive health effect, can you?
2 Q. Well, you told me you accepted that
3 survey as being a valid survey of the United States,
4 right?
5 A. It was a survey of the United States,
6 yes.
7 Q. You said valid though, didn't you?
8 A. No, I think you said valid.
9 Q. And you agreed?
10 A. I said it was a survey of the United
11 States.
12 Q. Do you agree that Dr. Kozlowski's survey
13 printed in the American Journal of Preventive Medicine
14 is a valid survey, Doctor?
15 A. I think it has valid components. I think
16 what they showed is when you gave people truthful
17 information, it changed their behavior and their
18 attitudes.
19 Q. The group for the United States -- the
20 group for the United States, which you say is
21 applicable everywhere, right? The views are the same
22 everywhere, correct?
23 A. It appears that way based on the data
24 that was presented.
153
1 Q. And the number for the entire United
2 States of people who view lights as having a health
3 benefit was 32 percent according to that survey, is
4 that right?
5 A. I don't think that's the -- one question
6 and how people responded to that one question, it
7 would be a mischaracterization to say that that's what
8 it means.
9 Q. Well, but the question asked specifically
10 about health problems, right, and people's attitude
11 towards health problems?
12 A. Right. And I believe I testified this
13 morning that people sometimes use the word reduced
14 risk or safer. They sometimes use connotations of
15 mild, smooth, lighter tasting. And those are --
16 Q. Now, this doesn't say anything about --
22 Q. All right. Doctor, you showed some
23 Philip Morris documents. Let me show you this one.
24 This is one of the exhibits that plaintiffs put up
154
1 this morning. It's Exhibit 31. Do you see that?
2 A. Yes.
3 Q. And it has a horrible front page, and I'm
4 not even sure if there's a title buried in there
5 somewhere. But, on the next page --
6 A. Well, it's on the top. It says Received.
7 There's a date and it's --
8 THE COURT: Well, here. Let him go on.
9 Q. At least, Dr. Cummings, if you move to
10 the next page, there's a title, right?
11 A. Yes.
12 Q. And it says Study of Smokers' Habits and
13 Attitudes with Special Emphasis on Low Tar Cigarettes,
14 correct?
15 A. That's right.
16 Q. And then you showed that it was prepared
17 for Philip Morris by The Roper Organization, correct?
18 A. Correct.
19 Q. Now, let me see if I can find the part
20 that you referred the Court to. This is the first
21 thing I believe that you referred to: Even among
22 those who have not switched to a low tar brand, there
23 is fairly high disposition among smokers to consider
24 switching to one. This is probably attributable to
155
1 the continuing concern over smoking and health, and
2 this study shows that the smoking public is convinced
3 that to the extent any brands are better for health,
4 it is the low tar brands that are. That was one of
5 the portions that you read to the Court, is that
6 right?
7 A. Correct.
8 Q. Okay. Then I believe you moved to -- I
9 can't remember, Doctor. Remind me. Did you read that
10 line: The low tar brands have cornered opinion that
11 to the extent any brands are better for your health,
12 they are?
13 A. Yes.
14 Q. Okay. And was that it from this
15 document? I want to make sure I've covered it. Or
16 was there one more? Do you remember?
17 A. I believe there was one more.
18 Q. Okay. Was that on the next page?
19 A. I believe it was.
20 Q. And it was this: Furthermore, it is the
21 lower tar content of these brands that make people say
22 they are better for health. When asked why the brands
23 they named were better for your health, answers
24 overwhelmingly were concerned with lower tar content.
156
1 Is that right?
2 A. That's right.
3 Q. Okay. Those are the sections you read of
4 this document. Would you agree with me this is a
5 lengthy document, Doctor?
6 A. Yes, it is.
7 Q. But, Doctor, you did not read to the
8 Court the second highlighted portion there. You read
9 the top one, but not the bottom one, is that right?
10 A. That's correct.
11 Q. And the bottom one says: Three in ten of
12 all smokers said some brands were better for health
13 than others and almost half of the low tar brand
14 smokers said this. Do you see that?
15 A. Yes.
16 Q. Had you read that before coming into
17 court today?
18 A. Yes, I've read the entire document.
19 Q. Okay. So, you were aware when you
20 testified this morning that what the document actually
21 says is that about half of the low tar brand smokers
22 said that some brands were better for health, is that
23 right?
24 A. What it says is people who go to low tar
157
1 brands are doing so for health.
2 Q. And it says about half of the people who
3 go to low tar brands do that, isn't that right,
4 Doctor?
5 A. Explicitly stating safer, but for other
6 reasons that would connotate health.
7 Q. Well, Doctor --
8 A. I mean, if you go to the summary, which I
9 think was the first statement --
10 Q. No, Doctor. I want to talk to you about
11 the language of the document right here where we're
12 talking about specific results, okay?
13 A. Sure.
14 Q. Can we look at that language?
15 A. Okay.
16 Q. And you don't -- you're not quibbling
17 with me that I'm reading the language wrong, are you?
18 A. No, I'm not.
19 Q. You would agree that what the language
20 says is that almost half, not even half, of the low
21 tar brand smokers said that some brands were better
22 for health, is that right?
23 A. That's right.
24 Q. And that provides some context for the
158
1 sentence that you read to the Court above, isn't that
2 right?
3 A. That's right. But, this would include
4 all smokers, not just those of light cigarettes.
5 Q. Now, this also talked about Marlboro
6 Light smokers, is that right?
7 A. Yes, it did.
8 Q. How many Marlboro Light smokers did this
9 document talk about at this point?
10 A. I have to find the percentage. I don't
11 have the percentage right off-hand. I'd have to go
12 through and find out.
13 Q. Well, do you see the chart on the next
14 page?
15 A. Which page is that? Twenty?
16 Q. Twenty.
17 A. Okay.
18 Q. This actually is talking about the number
19 of people that think particular brands are better for
20 health. Do you see that?
21 A. Correct.
22 Q. And you see Marlboro Lights there?
23 A. Right.
24 Q. And under low tar you see -- you can see
159
1 the chart. There's that -- it's that second column.
2 You see where it says 47 percent?
3 A. Right.
4 Q. That's the almost half of the smokers
5 that think some brands are better for health. Do you
6 see that?
7 A. Right.
8 Q. And look down at Marlboro Lights. What
9 is it? It's 3 percent of that 47 percent?
10 A. That's right. In 197 --
11 Q. That gives some more context to the
12 document, is that fair, Doctor?
13 A. Sure. I mean, the entire document -- I
14 mean, the document speaks for itself.
15 Q. We can agree on that. Doctor, you also
16 saw Plaintiff's Exhibit 33. Can you find that one up
17 there? It's the Benson & Hedges document.
18 A. Okay.
19 Q. I'll put it up here so everybody is
20 reminded of it.
21 A. Got it. Go ahead.
22 Q. I'm sorry, Doctor. Did you say you have
23 it now?
24 A. Yep.
160
1 Q. Okay. Do you remember this? You gave
2 some testimony about this Benson & Hedges document?
3 A. That's right.
4 Q. And you turned to the back of the
5 document. Let's see if I can get there. And you said
6 Look at this language: Those who are currently smoking
7 lights do so because they are better for you than full
8 flavor cigarettes, and go on there from, is that
9 right?
10 A. That's right.
11 Q. Now, there were other portions of this
12 document that you did not read to the Court, is that
13 right?
14 A. That's correct.
15 Q. And there are some other portions of this
16 document that would help provide some context for the
17 meaning of this document, is that correct?
18 A. I'm not sure what you're referring to.
19 Q. Well, let's take a look. First of all,
20 who were the smokers that were being considered in
21 this group?
22 A. These were light smokers.
23 Q. What kind of light?
24 A. Ten women, eight men, seven lights, three
161
1 full flavor, three menthol of the men group. And they
2 did the group separately, did the women separately
3 from the men. Eight men, four lights, four full
4 flavor, four menthol.
5 Q. Do you know -- is your answer you don't
6 know what brand these folks were smoking?
7 A. The comment about brands is, you know,
8 they were basically asking about some Benson & Hedges
9 stuff, but they basically make a comment that few of
10 them were smoking Benson & Hedges. So, it would be
11 other brands.
12 Q. Okay. Do you know whether any member of
13 this class was part of that group of smokers?
14 A. I believe this was done in Dallas, so I
15 doubt that.
16 Q. Okay. So, you're not representing this
17 as providing information about any specific members of
18 this class, is that right?
19 A. No. I'm providing this as evidence of
20 what Philip Morris knew about how people interpreted
21 the word lights.
22 Q. Okay. And it would be important to know
23 how Philip Morris felt about this study to look at
24 what they said in the document, is that right?
162
1 A. That's right.
2 Q. What's the difference between qualitative
3 and quantitative research, Doctor, in this context?
4 In the advertising context?
5 A. Well, in terms of this particular
6 context, you wouldn't want to make, you know, gross
7 representations from focus groups of people who have
8 been self-selected and often paid to come in and
9 provide their opinions; however, generally that's done
10 to explore people's attitudes and knowledge and often
11 utilized for hypothesis generating for studies in
12 other ways, like larger surveys and such.
13 Q. And this was qualitative research, wasn't
14 it, Doctor?
15 A. Yes.
16 Q. That was being discussed here? Because
17 on this page, Doctor, the second page of the document,
18 in a paragraph you did not read, it says: Because
19 group research is qualitative rather than quantitative
20 in nature, it serves to develop rather than prove
21 hypothoses. You agree with that?
22 A. Yes.
23 Q. Although the findings reported here are
24 valid for this sample, they're indicative rather than
163
1 definitive and should not be generalized to the
2 population at large, underlined, unless their
3 reliability is checked further by large scale
4 research. That's what this document says about the
5 results that you reported to the Court earlier, isn't
6 that correct?
7 A. That's correct.
8 Q. And that was not a section you chose to
9 read, is that correct?
10 A. I didn't choose to read that section.
11 But, I have no problem with it being read. I think
12 the document speaks for itself.
13 Q. And again, Doctor, we can agree on that.
14 A. Good.
15 Q. Another document that you showed, Doctor,
16 was this one, Exit Brand Cigarettes, a Study of
17 Ex-Smokers, by F. J. Ryan. And that, so you can find
18 it, is Exhibit 32, Plaintiff's Exhibit 32.
19 A. Got it.
20 Q. Now, I think you read this document for
21 the prop -- something to do with propositions about
22 low tar cigarettes being healthier, is that right?
23 A. That's right.
24 Q. One part of the document you didn't read
164
1 was the first paragraph of the summary, is that right?
2 A. I didn't read that paragraph, no.
3 Q. Okay. And that paragraph says: This
4 survey of people who have quit smoking found that the
5 proportion of quitters leaving the market via low-
6 delivery cigarettes is 1.4 times as large as the
7 market share of those brands would suggest. Do you
8 see that?
9 A. Yes.
10 Q. And that provides some of the context in
11 which this document was written, is that right?
12 A. Well, the context would be the paragraph
13 below: The most likely explanation lies not in the
14 delivery of nicotine and tar, but in the
15 characteristics of the people who have shifted to low
16 delivery - people who are concerned about their health
17 and have already shown their concern by shifting to
18 low delivery.
19 Q. And it says that those people are leaving
20 the market via low delivery cigarettes?
21 A. And the way to hold on to them is to
22 offer a low tar cigarette.
23 Q. Just answer, it's saying that those
24 people are leaving the market via low-delivery
165
1 cigarettes, isn't that right?
2 A. It says they're more concerned about
3 health and, therefore, more likely to quit.
4 Q. I just want to make sure we're not
5 confused. I'm just trying to read --
6 THE COURT: Just answer the question.
7 Q. Those people are leaving the market via
8 low-delivery cigarettes. That's what the document
9 says, Doctor?
10 A. Yes.
24 Q. Doctor, going back to that Roper Study
166
1 that's been marked as Plaintiff's Exhibit 31. There
2 were some other polling data in that document that we
3 didn't refer to earlier today, is that right?
4 A. This is the May '76?
5 Q. This is the May '76, which was marked as
6 Plaintiff's Exhibit 31.
7 A. Yeah, I believe that was the -- the data
8 were based on a sample of a thousand thirty some odd
9 smokers. Three thousand total people in that study.
10 Q. And there were questions that were asked
11 of these smokers that you didn't relate to the Court
12 earlier today, isn't that is right?
13 A. That's right.
14 Q. It's a long document?
15 A. It's a very long document.
16 Q. But, one of the things you've testified
17 about is the meaning of lights and how people perceive
18 that, is that right?
19 A. That's right.
20 Q. And how people view low tar brands, is
21 that right?
22 A. That's right.
23 Q. Now, if you turn to page fifteen. This
24 is going to get cramped here, I guess, but I'm going
167
1 to zoom in so we can see what the title is. It says
2 Reasons Brand Smoked Most Often Is Liked. So, this is
3 talking about why people like their brand?
4 A. That's right.
5 Q. And it's got a column for low tar smokers
6 and a column for flavor filter smokers?
7 A. That's right.
8 Q. And the number one answer is mild, is
9 that right, the 60 percent?
10 A. That's right.
11 Q. The next one is good flavor at 34
12 percent, is that right?
13 A. That's right.
14 Q. The next one is a satisfying cigarette at
15 33 percent, is that right?
16 A. That's right.
17 Q. And then we have better for your health.
18 And what was the percentage there, Doctor?
19 A. Thirty percent.
20 Q. Very close to the percentage from Dr.
21 Kozlowski's article, is that right?
22 A. Yes.
23 Q. Now, Doctor, if you can find in your pile
24 Plaintiff's Exhibit 35, which had the S. Dunn --
168
1 A. Right.
2 Q. -- handwritten on it -- handwritten
3 notation on it. And I believe you read to the Court
4 -- I'm sorry. I'll wait until you have it.
5 A. Got it.
6 Q. Okay. And I think the page that you read
7 from was page seven within the document, and the Bates
8 number ends with 202?
9 A. Correct.
10 Q. And then you read down here at the
11 bottom, that last line: In fact, implicit in the
12 tobacco industry's promotion of the low delivery
13 cigarette, it's the assumption that less tar and less
14 nicotine represent a safer cigarette, right?
15 A. That's right.
16 Q. Okay. And I said Read the next
17 paragraph, and Mr. Brickman said Do it later, right?
18 A. Okay.
19 Q. Right?
20 A. Okay.
21 Q. Here's the next paragraph. Since health
22 practitioners assert that the health risks increase
23 proportionately to the amount of tobacco smoke,
24 concern about cigarette smoking increasing health risk
169
1 may be a major factor motivating some people to select
2 a low-delivery brand as their preferred cigarette. Do
3 you see that?
4 A. Yes.
5 Q. It is true that health practitioners in
6 this time frame, which is 1976, is that right, were
7 asserting that the health risk increased
8 proportionately to the amount of tobacco smoked, is
9 that right?
10 A. Yes.
11 Q. And health practitioners were telling the
12 world that lower tar cigarettes as measured on the FTC
13 method were safer, is that right?
14 A. Yes.
15 Q. And Philip Morris never said that, is
16 that right?
17 A. That's incorrect.
18 Q. Isn't it a fact, Doctor, that you are
19 unaware of any explicit statement made by the
20 defendant in this case, a public statement, to the
21 effect that light cigarettes are safer than
22 traditional cigarettes?
23 A. Depends. And, of course, Philip Morris
24 denied that any of their cigarettes caused disease.
170
1 So, of course they couldn't say that low tar
2 cigarettes would be less likely to cause disease since
3 they actually put out pamphlets that says Are low tar
4 cigarettes safer? No. Because we don't believe that
5 our cigarettes are safe -- I mean are dangerous.
23 A. The answer is they have.
24 Q. They have made explicit statements?
171
1 A. They did under oath in this case. They
2 also --
3 Q. In this case?
4 A. Yes. I've seen some of the testimony
5 from Mr. Cullman and also Mr. Millhiser.
6 Q. Have you ever given exactly the opposite
7 answer under oath in another case, Doctor?
8 A. I may have. I don't know.
9 Q. Are you concerned with what you might
10 have said under oath in another case, Doctor?
21 Q. Page 206 from the Daniels' case, Doctor.
22 Line 22. Do you have that, Doctor?
23 A. Yes.
24 Q. Were you asked this question and did you
172
1 give the answer that follows:
2 "Let me ask you this: Are you aware of
3 any explicit statement made by anyone, by
4 any of the defendants in this case, a
5 public statement, to the effect that
6 light cigarettes are safer than
7 traditional cigarettes?
8 And did you answer under oath:
9 "No."?
10 A. Yes, I did.
11 Q. Thank you.
12 A. I've come to know since the time of this
13 deposition the statements.
17 Q. Would you read to the Court the date that
18 deposition was given, Doctor.
19 A. Sure. I believe it's 1999. I'm still
20 looking for the date here. October 27th, 1999.
21 Q. Okay. Doctor, have you done a study to
22 determine when the word lights acquired a meaning
23 related to health?
24 A. Well, I mean, I don't know what you mean
173
1 by did a study. I've read Philip Morris documents.
2 Q. I'll be clear --
3 A. And I know how maybe non-smokers
4 interpret the word lights.
5 Q. I'll be --
6 A. And I know how I interpret the word
7 lights used on a lot of consumer products.
8 Q. Right. Very good, Doctor. I'm going to
9 be more clear for you, okay? Have you -- you're a
10 historian, right?
11 A. I'm a research scientist, and I have
12 studied the tobacco documents, yes.
13 Q. Okay. And you've tried your best to put
14 those tobacco documents into context, is that right?
15 A. Yes, I have.
16 Q. And you agree that it's important to put
17 them into context?
18 A. Yes.
19 Q. Have you done a study yourself in an
20 effort to put the tobacco documents in context to
21 determine when it was that the word lights started to
22 acquire a meaning related to health?
23 A. That specific study, no.
24 Q. You're aware, Doctor, are you not, that
174
1 the word lights had been used in tobacco advertising
2 before Marlboro Lights came out? You're aware of that
3 from your review of tobacco documents, is that right?
4 A. Yes.
5 Q. And let me just show you an example.
6 MR. LOMBARDI: I'll hand Counsel a copy,
7 4174. I'm going to get that blown up, Doctor, so it
8 will be easier, but here's a copy.
9 Q. Have you seen this advertisement before,
10 Doctor?
11 A. I'm not sure if I've seen this one or
12 not.
13 MR. LOMBARDI: Okay, could you blow-up right
14 where you've got the cursor, and just do that whole
15 line would be great.
16 Q. Have you heard of -- I don't even know
17 how to pronounce it, Doctor -- Shahdur cigarettes?
18 THE COURT: Are they American or --
19 A. No, I have not heard of Shahdur
20 cigarettes.
21 MR. LOMBARDI: No, they're sold in America.
22 It says it was sold in New York City, Judge, but I
23 don't --
24 THE COURT: I see New York City on there.
175
1 Q. Okay. There we go. It says: Some
2 people prefer a lighter cigarette than Shahdur. Do
3 you see that, if I'm pronouncing that right, Doctor?
4 A. Yes.
5 Q. In 1916 were they saying that they have a
6 safer cigarette than Sha -- that some people prefer a
7 safer cigarette than the one they're advertising here?
8 A. I don't see the word safe used in this.
9 Q. And you don't understand the word light
10 to mean safe in the context of this advertisement, is
11 that right?
12 A. Where it says Some people prefer a
13 lighter cigarette?
14 Q. No implication that it means safe, is
15 that right?
16 A. Well, mild is one of the terms that's
17 used above it. Medium blend. So, that would be
18 interpretting it wouldn't be as strong.
19 Q. Well, what they're talking about, they're
20 advertising for Shahdur, though, and they're saying
21 that some people might prefer something that's lighter
22 than Shahdur, right?
23 A. They're advertising Shahdur cigarettes. I
24 think the implication would be that this would be
176
1 lighter.
2 Q. No. It's saying that some people prefer
3 a lighter cigarette than Shahdur, right?
4 A. Correct.
5 Q. So, you understand that in this context
6 as being a reference to taste, don't you?
7 A. Mild, medium blend.
8 Q. The lighter. I'm talking about the
9 lighter. You understand that as being a reference to
10 taste, don't you?
11 A. I think it speaks for itself. I mean --
12 Q. Well, I'm asking -- you're the expert,
13 and you've told us your opinion about the word light
14 over and over today. And I'm asking you as an expert,
15 when this ad went out in March of 1916 it says on
16 there, did the word lighter refer to taste?
17 A. Yes.
18 Q. Now, Doctor, let me show you another
19 example.
20 MR. LOMBARDI: 4298, please.
21 Q. This is from the 1960's, Doctor. You've
22 heard of Viceroy cigarettes, is that right?
23 A. Yes, I have.
24 Q. And you see the line at the top?
177
1 MR. BRICKMAN: Do you have a copy, Counsel?
2 MR. LOMBARDI: Oh, I'm sorry. I apologize.
3 4298.
4 Q. And, Doctor, if you want a copy rather.
5 Whichever way you want to do it.
6 A. Correct.
7 Q. I've handed you what's been marked as
8 4298, Doctor. And this is an ad for Viceroy from the
9 1960's, is that right?
10 A. That's right.
11 Q. And this was -- actually it was before
12 the Surgeon General's Report in '64, is that right?
13 A. That's right.
14 Q. And it says Smoke all seven filter brands
15 and you'll agree: Some taste too strong -- that's a
16 reference to taste, right?
17 A. Yes, it is.
18 Q. And some too light. Do you see that?
19 A. Yes.
20 Q. That's a reference to taste, too, isn't
21 it, Doctor?
22 A. Yes. And implicit in this is the
23 lighter, because actually Viceroy was talked about in
24 Philip Morris' documents as one of those safer
178
1 cigarettes, the hi-fi cigarettes as they refer to
2 them.
3 Q. Actually, was Viceroy advertised as a low
4 tar cigarette here?
5 A. I don't believe.
12 A. No.
13 Q. Now, Doctor, before Philip Morris came
14 out with Marlboro Lights, was any cigarette brand, the
15 brand itself, called Lights?
16 A. I don't believe so.
17 Q. Have you specifically researched that
18 question as part of your exhaustive look at the
19 tobacco company documents?
20 A. No.
21 MR. BRICKMAN: Thank you.
22 Q. Showing you what's been marked as
23 3483.1. Now, have you run across Marlboro Lights ads
24 in the course of your studies?
179
1 A. Yes, I have.
2 Q. Okay. And you've seen this one or one
3 like it before, is that right?
4 A. Yeah. There are actually many like this.
5 Q. Okay. And this is from -- then you know,
6 Doctor, I assume, that this is from around the time of
7 the introduction of Marlboro Lights, is that right?
8 A. Yes. I believe so, yes, that's correct.
9 Q. Just to give you a clue, if you look down
10 at the line with the FTC numbers. Do you see that
11 line down there?
12 A. Right.
13 Q. And it has a date on it, right?
14 A. Yes.
15 Q. And what's the date?
16 A. FTC report August '71.
17 Q. And Philip Morris was reporting the FTC
18 numbers as required by the FTC, correct?
21 A. Not required.
22 Q. Okay. You know that Philip Morris
23 reported the FTC numbers, is that right, Doctor?
24 A. It's -- yes.
180
1 Q. And you're not suggesting that there's
2 anything wrong with Philip Morris reporting those
3 numbers, are you?
4 A. No.
5 Q. Okay.
6 MR. LOMBARDI: You can take that down. No, I
7 want the whole document still, but take down that.
8 Q. And let's go to -- well, it says From
9 Marlboro to America's low tar and nicotine cigarette
10 smoker, Marlboro Lights.
11 MR. LOMBARDI: And then let's go right where
12 you are.
13 Q. It says Lighter in taste. Do you see
14 that?
15 A. Yes.
16 Q. The word light there is being used in
17 reference to taste, isn't it, Doctor?
18 A. And low tar.
19 Q. Well, it says lighter in taste, doesn't
20 it?
21 A. It does say that.
22 Q. And then it says low in tar, is that
23 right?
24 A. Yes.
181
1 Q. Okay. Now, have you studied what the FTC
2 said about using the term low tar in that time frame?
3 A. Yes.
4 Q. And you're aware then that the FTC in a
5 case with American Brand said that you can use the
6 term low tar or lower tar as long as its by reference
7 to results under the FTC method? You're aware of
8 that, aren't you, Doctor?
9 A. Yes.
10 Q. Okay. So, it says: Some people prefer
11 the taste of a low tar and nicotine cigarette. For
12 them we've made Marlboro Lights. The same great
13 quality you get with Marlboro Red, only Lights were
14 developed especially for those who prefer the lighter
15 taste of a low tar smoke. Low tar smoke. Is that
16 right?
17 A. That's right. You read that correctly.
18 Q. And again -- and again, they use the word
19 light together with taste, is that right?
20 A. They use the word light in taste together
21 with low in tar, and that is true.
22 Q. Okay.
23 Q. Now, you know, Dr. Cummings, as a student
24 of the tobacco company, that after Marlboro Lights
182
1 came out, other brands came out and used the term
2 lights, is that right?
3 A. Yes.
4 Q. You don't remember or you don't know
5 whether Marlboro Lights was first or whatever, but you
6 know that after this time, the early 70's, more and
7 more brands came out that used the term lights, is
8 that right?
9 A. Viceroy was using the term lights at
10 around this time, and I believe Winston had light
11 cigarettes. But, they were sued by Philip Morris to
12 prevent them from using that term.
13 Q. Using the term lights?
14 A. Correct.
15 Q. And Philip Morris lost?
16 A. Yes, they did.
17 Q. And Winston then -- a Court ruled on
18 that, right?
19 A. Yes, they did.
20 Q. Considered the meaning of the word
21 lights, right?
22 A. Yes, they did.
23 Q. The Court did?
24 A. The Court did.
183
1 Q. And the Court ruled that Winston could
2 use the term lights, is that right?
3 A. Actually it's R.J. Reynolds.
4 Q. Fair enough. They could use -- R.J.
5 Reynolds could use the term lights with their brand
6 Winston, is that right?
7 A. Correct.
8 Q. And then by the end of the 1970's there
9 were a number of companies that had used the word
10 lights with their cigarettes, is that right?
11 A. That's right.
12 Q. And the companies that used the word
13 lights with their cigarettes used them in association
14 with cigarettes that had a yield of tar under the FTC
15 method in a certain range, didn't they?
16 A. The companies used the term lights in
17 their marketing and created a category under 15
18 milligrams.
19 Q. And 15 down to what?
20 A. Seven typically.
21 Q. So, those companies that used the word
22 lights created a category between 15 and 7, is that
23 right?
24 A. Yes, the companies did that.
184
1 Q. Okay. And those cate -- that category
2 was lower -- when -- if a brand was called light, it
3 was lower than the regular version of that brand, is
4 that right? Lower in tar under the FTC test method,
5 is that right?
6 A. Well, they weren't really lower in tar,
7 but to the smoker --
8 Q. I said under the FTC test method.
9 A. Under the FTC test method they would be
10 lower, yes. Under 15.
11 Q. Which was the only method the Government
12 permitted the tobacco companies to use, is that right?
13 A. Incorrect.
14 Q. Did the Government -- sir, are you
15 telling this Court that the Government permitted the
16 tobacco companies to use something other than the FTC
17 test method in its advertisements?
18 A. That wasn't your question. Your question
19 was Was Philip Morris able to use other testing
20 methods. In fact, Philip Morris did use other testing
21 methods. And I've come across many documents that
22 talk about Philip Morris using a variety of testing
23 methods to look at the amount of tar and nicotine
24 somebody would get and compared that to the FTC
185
1 method.
2 Q. Okay. Well, I'm talking about advertise
3 -- did you understand I'm talking about
4 advertisements, Doctor?
5 A. I do now, but you didn't clarify that to
6 start with.
7 Q. I apologize. Do you understand now I'm
8 talking about advertisements?
9 A. The FTC didn't say you had to advertise
10 the tar and nicotine content. It just said that you
11 had to report to the FTC the amount of tar and
12 nicotine according to their method.
13 Q. And the FTC published those numbers?
14 A. Yes, they did.
15 Q. And the FTC made those numbers available
16 to smokers across the country?
17 A. Not really.
18 Q. Are you not familiar with publications by
19 the United States Government that made the numbers,
20 the FTC tar and nicotine numbers for brands, available
21 to smokers?
22 A. Well, I think you're mischaracterizing
23 the statement Made available to smokers. I mean, they
24 were made available, and people like myself who do
186
1 research on tobacco products certainly have -- I have
2 a whole stack of the FTC reports. But, I've never
3 come across one smoker in all my dealings with smokers
4 who has ever had an FTC report, ever.
8 Q. Dr. Cummings, I'm not talking just about
9 the FTC report. You're aware -- you're aware that the
10 Government had public service announcements that went
11 out concerning cigarettes of various tar and nicotine
12 levels? You're aware of that, aren't you, in your
13 study of tobacco?
14 A. Well, I'm aware of the fact that the
15 Government had many public service announcements. Most
16 of them didn't deal with FTC. I'm not aware of them
17 ever doing anything on the FTC.
18 Q. Well, we've actually already looked in
19 court at one called Bad is Better Than Worse. Have
20 you heard of that one?
21 A. Yes, I have.
22 Q. Well, then there's no mystery, is there,
23 Doctor? Bad is better than worse is an ad by the
24 Government that says a bad cigarette, meaning a lower
187
1 tar and nicotine cigarette, is better than a worse
2 cigarette, which is a higher tar and nicotine
3 cigarette under the FTC method, correct?
4 A. That's right.
5 Q. And at the bottom of that ad there's a
6 list of cigarette brand and their tar and nicotine
7 levels, isn't that correct?
8 A. That's correct.
9 Q. And you're aware that it wasn't -- well,
10 strike the question. So, these cigarettes -- these
11 cigarettes called lights are associated with a range
12 of tar and nicotine numbers under the FTC tests,
13 correct?
14 A. What cigarettes are you referring to as
15 these?
16 Q. The ones called lights.
17 A. Okay.
18 Q. And you said that's 15 down to about 7,
19 is that right?
20 A. That's right.
21 Q. And the full flavor version of those
22 cigarettes would be higher than that under the FTC tar
23 and nicotine level, is that right?
24 A. That's right.
188
1 Q. And the FTC -- under the FTC tests, they
2 are -- those brands at least are lower tar than the
3 full flavor brands, is that right?
4 A. Under the FTC method, but not in reality.
5 Q. That was my question. That was my
6 question.
7 A. All right.
8 Q. Marlboro Regulars have a higher tar than
9 Marlboro Lights?
10 A. No, they don't.
11 Q. Under the FTC test, sir?
12 A. Under the FTC test, they do.
13 Q. Okay. Cambridge Regulars have a higher
14 tar than Cambridge Lights under the FTC test?
15 A. That's incorrect. Cambridge in 1980 was
16 much lower on the FTC test method than the Cambridge
17 Lights brand that came out in 1985. I believe it was
18 12 milligrams in 1985 and less than 05 milligrams of
19 tar in 1980.
20 Q. We talked about this in court, but just
21 so the record in clear, you know as you say that to
22 the Court that the 1980 version of Cambridge was
23 labelled ultra low tar, don't you, Doctor?
24 A. Yes, it was not labelled lights.
189
1 Q. It was labelled ultra low tar. And the
2 Cambridge Lights was above the ultra low tar in tar
3 delivery under the FTC method, is that right?
4 A. Well, the lights was 12 and the other
5 Cambridge was less than 1.
6 Q. The ultra low tar, the one labelled ultra
7 low tar was lower than the lights under the FTC
8 method, isn't that correct, Doctor?
9 A. Yes.
10 Q. And, Doctor, the term low tar, there was
11 communication among the public health community about
12 lower tar under the FTC test method and whether that
13 meant safer or not, wasn't there, throughout this
14 whole period of time?
15 A. What do you mean by communication?
16 Q. Well, there were discussions among
17 members of the public health community about whether
18 low tar under the FTC method was safer.
19 A. I think there was the belief that if it
20 was lower in tar, it was safer.
21 Q. And they talked about it publicly, isn't
22 that right?
23 A. I'm not sure what you're referring to.
24 Q. Well, they told the smokers that if
190
1 you're going to smoke -- or you should quit. You
2 should definitely quit smoking. But, if you are going
3 to smoke, you should smoke a lower tar cigarette under
4 the FTC method, isn't that right?
5 A. I've never heard anybody say under the
6 FTC method. They said, you know, if you're going to
7 smoke, smoke a cigarette that gives you a lower tar,
8 and the deception that they would actually get lower
9 tar by smoking, say, a Marlboro Light.
10 Q. Okay. Well, now you're not -- I just
11 want to be very clear. You're not accusing members of
12 the public health community of a deception by saying
13 lower tar is safer, are you?
14 A. No. I would be accusing Philip Morris of
15 that.
16 Q. That's understood. But, you're not
17 accusing -- when people in the public health community
18 said that lower tar under the FTC test is safer,
19 you're not accusing them of a deception, are you?
23 Q. You've heard of Ernest Wynder?
24 A. Yes.
191
1 Q. Dietrich Hoffmann?
2 A. Yes.
3 Q. Famous scientists?
4 A. Yes, they are.
5 Q. Outside the tobacco industry?
6 A. Yes. Although they have received money
7 from the tobacco industry.
8 Q. Well, you're not -- are you impuning the
9 integrity of Ernest Wynder, Doctor?
10 A. No, I'm not.
11 Q. You're not doubting that he had given the
12 best scientific reports relating to tar and nicotine
13 that he possibly could and the most accurate ones as
14 well?
15 A. Yes.
16 Q. You don't doubt that he was doing it?
17 A. No. I think he was doing the best he
18 could.
19 Q. Handing you a document from the Second
20 World Conference on Smoking and Health.
16 Q. You have heard of the Second World
17 Conference on Smoking and Health, haven't you, Doctor?
18 A. I'm familiar with world conferences.
19 Q. And are you specifically familiar with
20 the Second World Conference?
21 A. No, not specifically.
22 Q. Okay. And you knew that -- did you know
23 that this conference was held in 1971?
24 A. It says that, yes.
193
1 Q. And right around that time --
20 MR. LOMBARDI: Let's go to 4361.2, the second
21 page.
22 Q. And these are the recommendations of the
23 Conference, is that right?
24 A. That's what it says.
194
1 Q. Okay. And let's look at what the
2 recommendations are.
3 A. Actually you mischaracterized. It says
4 this is a member of a working group or a workshop, and
5 they're submitting summary recommendations to the main
6 conference.
7 Q. Fair enough. Okay. And it says --
8 MR. LOMBARDI: Actually if we go just a
9 little bit above that just to see what it says.
10 Q. The smoker who at present cannot quit
11 should practice the following. Do you see that?
12 A. Yes.
13 Q. And it says Most importantly, don't
14 inhale the tobacco smoke. Do you see that?
15 A. That's right.
16 Q. To take fewer puffs on each cigarette?
17 A. That's right.
18 Q. Not to smoke the cigarette all the way
19 down?
20 A. That's right.
21 Q. And to use low tar and low nicotine
22 cigarettes. Do you see that?
23 A. Yes.
24 Q. And they're telling -- they're telling
195
1 the manufacturers something, too. Do you see that in
2 that number two?
3 A. Okay.
4 Q. Recognizing the difficulty of changing
5 human smoking behavior, the workshop stresses the need
6 to modify tobacco products. The manufacturer should
7 be encouraged to produce cigarettes with increasingly
8 lower tar and nicotine yields. And it talks about
9 ways that they could do that. Do you see that?
10 A. Right. So smokers would actually get
11 less tar.
12 Q. It says it should be encouraged to
13 produce cigarettes with increasingly lower tar and
14 nicotine. Do you think that they didn't know about
15 FTC test method when they wrote that? Is that your
16 testimony?
17 A. I think they didn't know that Philip
18 Morris knew you didn't get a less tar --
19 Q. That wasn't my question. Did they know
20 about Government test methods for tar and nicotine
21 levels, Doctor?
22 A. I don't know who attended the workshop.
23 Q. Well, let's look. It says Government
24 agencies, they say, should be responsible for the
196
1 regular publication of tar and nicotine levels
2 determined by international standardized techniques of
3 all smoking products for dissemination to the public.
4 Do you see that?
5 A. Yes.
6 Q. They want there to be standardized
7 techniques of measuring tar and nicotine, is that
8 right?
9 A. That's right.
10 Q. And the FTC test method is what is known
11 as a standardized technique for measuring tar and
12 nicotine?
197
1 Q. And I'll just -- just to be very clear,
2 Dr. Cummings. They're talking -- they would like to
3 have an international standardized technique for tar
4 and nicotine delivery, is that right?
5 A. Yes.
6 Q. And you know that there is an
7 international standard for tar and nicotine delivery
8 that's similar, but a little bit different from the
9 FTC method, isn't that is right?
10 A. Yes.
11 Q. It's called ISO, I-S-O, is that right?
12 A. That's right.
13 Q. But, you would call both ISO and the FTC
14 test of method standardized techniques, wouldn't you?
15 A. They are.
16 Q. That was in 1971 when Marlboro Lights was
17 first introduced, is that right?
18 A. Yes.
19 Q. That type of recommendation that smokers
20 smoke low tar cigarettes as measured by the FTC method
21 continued throughout the 70's and into the 80's, isn't
22 that right?
23 A. By whom?
24 Q. The public health community.
198
4 Q. You've heard of the Banbury Conference,
5 Doctor?
6 A. Yes.
7 Q. That's a famous conference concerning
8 safe cigarettes, is that right?
9 A. That's right.
10 Q. I'm handing you what's been marked as
11 5411.
12 MR. LOMBARDI: Let me just make sure, your
13 Honor. It's 5204, your Honor. I apologize.
14 Q. And the Banbury Report grew out of the
15 Banbury conference, is that right, Doctor?
16 A. That's right.
17 Q. Okay. And there were some eminent
18 scientists who participated in the Banbury Conference,
19 is that right?
20 A. That's right.
21 Q. And we actually have some pictures of
22 them over here. But, among them were Dietrich
23 Hoffmann, Ernest Wynder, Cuyler Hammond, C-u-y-l-e-r.
24 You're familiar with him, aren't you?
199
1 A. Yes.
2 Q. A Dr. Garfinkel. Are you familiar with
3 Dr. Garfinkel?
4 A. Yes, I am.
5 Q. Okay. These are eminent scientists
6 outside the tobacco industry, is that right?
7 A. Those that you named are outside the
8 tobacco industry.
9 Q. And actually this was edited by Gio Gori,
10 who is from the National Cancer Substitute, right?
11 A. At the time he was, yes.
12 Q. And Fred Bock?
13 A. Yes.
14 Q. And he's from your institution?
15 A. Yes, he was.
16 Q. Okay. And this document, this report,
17 came out of a conference that was held, is that right?
18 A. That's correct.
19 Q. Okay. Doctor, let's look at the chapter
20 by Cuyler Hammond of the American Cancer Society.
21 That's what he was affiliated with, is that right?
22 A. That's right. Which chapter are you
23 looking at?
24 Q. I'm sorry, it's -- I believe page 13
200
1 you'll find it at. It doesn't have a chapter number.
2 A. Okay.
3 Q. All right. And he's referring to a
4 meeting right off the bat here that occurred sometime
5 in the early 1960's to talk about the less harmful
6 effects of a low tar, low nicotine cigarette?
7 A. Yes.
8 Q. And he says At this meeting Ernest Wynder
9 and I drafted a resolution that was approved by the
10 Committee and was quoted in the Congressional Record
11 and by the Surgeon General. It said, quote, The
12 preponderance of scientific evidence strongly suggests
13 that the lower the tar and nicotine content in
14 cigarettes, the less harmful would be the effects.
15 1967. Do you remember that?
16 A. Yes.
17 Q. And you've seen that statement before, is
18 that right?
19 A. I've read the Banbury Report, yes.
20 Q. This statement has been relevant ever
21 since. Today I would change this wording. Instead of
22 saying that the preponderance of scientific evidence
23 strongly suggests, I'd now say the preponderance of
24 scientific evidence very strongly suggests and I'd
201
1 leave the rest of the wording unchanged. Do you see
2 that?
3 A. That's right.
4 Q. And that's what Cuyler Hammond was saying
5 at the Banbury Conference in 1980, is that right?
6 A. That's what it says.
7 Q. Okay. Let's go to the summary. If they
8 must smoke, people who must smoke would be well
9 advised to switch to a low tar, low nicotine
10 cigarette. Do you see that, Doctor?
11 A. Yes.
12 Q. And that's what Dr. Cuyler Hammond of the
13 American Cancer Society was saying in 1980, correct?
14 A. What page are you on?
15 Q. That was the summary at page 18.
16 A. Eighteen, okay. Yes. Do you want me to
17 read the whole paragraph or --
18 Q. That's sufficient, Doctor. Do you see
19 that there?
20 A. If they must smoke, they would be well
21 advised to switch to a low tar, low nicotine
22 cigarette. But, the group that concerns me most,
23 those for whom we are likely able to do something, is
24 young people. Evidence we have presented strongly
202
1 suggests that the degree of addiction depends upon age
2 at the start of smoking, the number of cigarettes
3 smoked, and probably depends a great deal upon the tar
4 and nicotine content of the cigarettes smoked. So,
5 he's, you know, basically speculating on his data.
6 He's making a recommendation. But, it wasn't -- it
7 wasn't firmly known certainly at this time that there
8 was a benefit. But, it got lower tar, truly. I think
9 everybody agrees that would be better.
10 Q. You know that he's referring to low tar
11 cigarettes as measured under the FTC method, don't
12 you? That's how he's measuring it, isn't it, Doctor?
13 A. I'll take your word for it that he says
14 that's how he's measured it. But, since the FTC
15 method doesn't give you --
16 THE COURT: Wait a minute. Wait a minute. I
17 don't want you to take his word for it.
18 THE WITNESS: You want me to look it up?
19 THE COURT: This Court is a fact finder.
20 THE WITNESS: All right.
21 THE COURT: And in that case you're presuming
22 something that is not at this point in evidence. You
23 determine that for the sake of the Court, whether
24 that's the case or not.
203
1 THE WITNESS: Okay.
2 THE COURT: Because this disputes the
3 previous comment of the public health community.
4 THE WITNESS: Well, I'm glad you pointed that
5 out, Judge, because I don't see anywhere in the report
6 of Dr. Hammond where he's talking about the FTC
7 method.
8 Q. Well, let me ask you this, Doctor: How
9 did he know that low tar and low nicotine cigarettes
10 were potentially safer if he didn't measure the tar
11 and nicotine of those cigarettes?
12 A. I don't know. It doesn't describe his
13 method for doing that.
14 Q. Are you saying that Cuyler Hammond of the
15 American Cancer Society would make a recommendation
16 without having a basis for saying that they were low
17 tar and nicotine cigarettes that were being studied?
18 A. I can't say how he did it. It doesn't
19 say how he did it. It doesn't say that he used and
20 relied upon the FTC testing method as the way for
21 categorizing people into different tar levels.
22 Q. Well, let me ask you this --
23 THE COURT: Well, wait a minute. It's
24 getting late. Is there anywhere in here that it
204
1 indicates what chart he's using?
2 MR. LOMBARDI: Here --
3 THE COURT: If not, I don't know why you
4 asked the question.
5 MR. LOMBARDI: Yes; let me refer to page 14.
6 THE COURT: All right.
7 Q. Do you see the second to last paragraph
8 on page 14, Doctor?
9 A. Yes.
10 Q. It says The high classification referred
11 to cigarettes that in 1959 had 25.8 milligrams or more
12 of tar and 2.0 milligrams or more of nicotine. Do you
13 see that?
14 A. That's right.
15 Q. That's the FTC test method, isn't it,
16 Doctor?
17 MR. BRICKMAN: Objection.
18 A. No.
19 Q. What is it?
20 THE COURT: He answered no.
21 Q. I want to know what it is. I want you to
22 tell the world why it is that you say that's not the
23 FTC test method, Doctor.
24 A. Because the FTC test method came out in
205
1 1967. This is referencing tar and nicotine yields
2 from 1959.
3 Q. Right. And there were methods -- there
4 were machine methods of smoking from 1950's forward,
5 right, Doctor?
6 A. There were many different methods
7 available for testing tar and nicotine content, which
8 is why the FTC put out a standardized method in 1967.
9 Q. I think I understand the confusion now,
10 Doctor. You're not --
6 Q. Let's just look at one more, Doctor.
7 MR. LOMBARDI: 7517.
8 Q. I'm handing you 7517. And this is an
9 article by Dietrich Hoffmann and I believe it's Ilsa
10 Hoffmann, is that right?
11 A. That's right. That's Dietrich's wife.
12 Q. And Ernest Wynder again, is that right?
13 A. That's right.
14 Q. And this is an article called Lung Cancer
15 and the Changing Cigarette?
16 A. Yes.
17 Q. This is from 1991, is that right?
18 A. It appears to be, yes.
19 Q. Okay. And let's look at -- I'll just be
20 fast, and we'll just stay with the summary, Doctor.
21 They say: 1991, Epidemiological studies have shown
22 that the long-term smoker of low-yield cigarettes has
23 a 20 to 50 percent lower risk of lung cancer than the
24 smoker of high-yield cigarettes, is that right?
207
1 A. Yes.
2 Q. Thus, a strong social case is made for
3 further developments in the low-yield cigarette. Do
4 you see that?
5 A. Yes.
6 Q. And that's what Drs. Hoffmann and Dr.
7 Wynder were saying in 1991, is that right?
8 A. Yes.
9 MR. LOMBARDI: No further questions, Judge.
10 THE COURT: Re-direct.
11 MR. BRICKMAN: Yes. Please.
12 RE-DIRECT EXAMINATION
13 BY MR. BRICKMAN:
14 Q. Have you ever seen a study by Barbro
15 Goodman of the Philip Morris Company --
16 MR. LOMBARDI: It's beyond the scope.
17 Q. In 1975?
18 MR. LOMBARDI: Oh, I'm sorry. I'll let you
19 finish.
20 MR. BRICKMAN: Thank you.
21 Q. Have you ever seen it?
22 A. Yes, I have.
9 Q. Did that study indicate that Marlboro
10 Light smokers allegedly with lower tar and nicotine
11 were getting lower tar and nicotine than regular
12 smokers?
16 A. No difference.
17 Q. Would any public health official
18 recommend a cigarette as presumably better for
19 somebody if it didn't make a difference in the amount
20 of tar and nicotine they were getting?
24 Q. Assuming that to be true that it didn't
210
1 give any lower tar and nicotine, do you know of any
2 public health official -- any public health official
3 that would recommend it as better for you or safer?
4 MR. LOMBARDI: Objection. Foundation. And
5 it mischaracterizes this document according to their
6 own witnesses I might add.
7 THE COURT: Overruled with the assumption.
8 A. No.
9 Q. Was the Barbro Goodman study published?
10 A. No.
11 Q. Does it do any good to recommend a
12 cigarette as being lower in tar if it's not really
13 lower in tar?
2 Q. Now, with regard to Exhibit 4361 -- this
3 was the two pages that you got.
4 A. Right.
5 Q. Now, when they were recommending low tar,
6 low nicotine cigarettes, they didn't say anything
7 about low tar, low nicotine under the FTC method, did
8 they?
9 A. It doesn't say that, no.
10 Q. And in order to get the benefit of it, I
11 presume you'd have to get the lower tar and nicotine,
12 correct?
13 A. Yes.
14 Q. Not the machine getting it?
15 A. I think they're referring to biologically
16 what you would get -- what the smoker would actually
17 get.
18 Q. There was a number of references to
19 public health knowing various things over time. Has
20 it been your understanding that what public health
21 knows or what some people in public health know
22 translates into what the public knows?
23 A. It's my understanding that the public
24 knows a lot less than what might be in some scientific
212
1 journal someplace or even summarized in a Surgeon
2 General Report for that matter.
3 Q. You were shown MIPM 4174, Shahdur
4 cigarettes. You were asked what they meant by the
5 word light. You don't have any internal documents for
6 the Shahdur Company to determine what they meant, do
7 you?
12 Q. Do you have any of their internal
13 documents?
14 A. No.
15 Q. Do you have internal documents, though,
16 from Philip Morris to determine what they were told
17 that word meant to their smokers?
18 A. Yes.
19 Q. What did it mean to their smokers, not to
20 the Shahdur smokers?
5 A. It promised lower tar and better for you.
6 Q. Viceroy. Are you familiar with the
7 Viceroy cigarette that came out around this time?
8 A. Yes, I am.
9 Q. This was in 1962, sometime around and
10 shortly after the tar derby?
11 A. That's right.
12 Q. Touting of filter tip cigarette?
13 A. Right.
14 Q. Do you know if Viceroy was looked upon as
15 a potentially safer cigarette because of that filter?
21 A. It was marketed as a hi-fi cigarette and
22 was considered in the new category of cigarettes that
23 were presumably safer because they delivered less of
24 the tar.
214
1 Q. I don't want the judge to get mad at me
2 for belaboring the point, but do you see this ad.
3 This is 3483.1. And they claim that they are
4 advertising in here that lighter in taste. Are you
5 aware, however, of what the president of the company
6 said --
7 A. Yes.
8 Q. -- how they were marketing this
9 cigarette?
10 A. Yes.
11 Q. And did they in fact say they were
12 marketing it as safer?
13 A. Yes, they did.
18 Q. Showed you a deposition from three years
19 ago wherein you said at that time you weren't aware of
20 any public statements that cigarettes are safer.
21 Subsequently have you seen some of these remarks?
22 A. Yes. I think the question was explicit
23 statements. And, yes, since that time I've seen these
24 remarks from company executives as well as certain
215
1 documents that I've seen.
2 Q. You were asked about the New York City
3 tax. Do you recall that?
4 A. Yes.
5 Q. And they said they were taxing them on
6 their tar content apparently, correct?
7 A. Correct.
8 Q. Did that reference in any way the name of
9 the cigarette?
10 A. No.
11 Q. Did that in any way require them to call
12 their cigarette light?
13 A. Not that I'm aware of.
14 Q. Did that require them in any way to use
15 the phrase lower tar and nicotine on their pack?
16 A. No.
17 Q. Now, you were about to say at one point,
18 and the judge said I could come back on re-direct,
19 about why these boys over in the tobacco company
20 couldn't use the word safer. What was that reason?
6 Q. The men and women at Philip Morris. You
7 said you wanted to explain why they couldn't use the
8 term safer. What did you mean by that?
9 A. I meant they never admitted that any of
10 the cigarettes they made were unsafe. They said they
11 weren't proven to be a cause of cancer, and they in
12 fact stated in there Frank Statement in 1954: Our
13 cigarettes are not injurious to health. And they
14 maintained that position up until recently.
15 Q. So, how did they convey the message of
16 safer?
17 A. They used the word light. They used the
18 word lower in tar. They conveyed it through their
19 millions and millions and millions of dollars annually
20 spent on advertising to market to consumers. They
21 used it through their denials of the health risks of
22 smoking, the Surgeon General's Reports. They provided
23 reassuring statements to consumers in the form of
24 public statements that Our products have not been
217
1 proven to be dangerous. We'll provide research, and
2 we'll share the findings of that research with the
3 American public.
4 Q. All right. Let me -- I know the judge
5 doesn't want me to go too long.
6 THE COURT: No. You can take long.
7 MR. BRICKMAN: I'm going to try to move. I'd
8 like to get everybody out of here.
9 Q. Exhibit 31, which is the May 1976
10 document.
11 A. Right.
12 Q. And on page 15 you were shown a little
13 chart that had --
14 MR. BRICKMAN: Let me just put it on
15 download, if I could.
16 Q. And it said in there 59 percent think,
17 you know, the reason they smoke it for most often is
18 lights is because it's mild. Now, a couple questions
19 on this. One: These people gave multiple reasons for
20 liking the cigarette, correct?
21 A. Correct.
22 Q. And in fact, some of the reasons they
23 could have given were, based on the numbers, they
24 could have said mild and better for your health or
218
1 mild and more effective filter. These numbers don't
2 add to a hundred percent, do they?
3 A. That's right.
4 Q. Now, based on your own experience, when
5 consumers give you a number of reasons, has it been
6 your findings that behind all of them, somewhere in
7 those reasons virtually all of them have a health
8 related reason for smoking these cigarettes?
9 MR. LOMBARDI: Object to the form, and
10 foundation. There's no foundation for that.
11 THE COURT: Overruled.
12 A. The answer would be yes. In fact, the
13 term mild has a connotation of safer, less harsh, less
14 irritating, lighter feel in your airways. These are
15 all statements in fact that I found in surveys done by
16 Philip Morris, actually the Roper organization,
17 talking about filtered cigarettes back as early as
18 1959, using those terms as a connotation for health --
19 safer, better for you, less risky.
20 Q. Let me show you what we will mark as
21 Exhibit 44. And it is a March 1979 document. And
22 this is again along those same lines. Are you
23 familiar with this document?
24 A. Yes, I am.
219
1 Q. What is this document?
2 A. This is another survey report. It's one
3 on The Habits and Attitudes with a Special Emphasis on
4 Low Tar and Menthol Cigarettes.
5 Q. Who is it prepared for?
6 A. Philip Morris.
7 Q. When?
8 A. March of '79.
9 Q. Who did it for them?
10 A. The Roper Organization.
11 Q. Same group you saw before?
12 A. Yes.
13 Q. Let's turn to page seven, please. Do you
14 see the highlighted portion?
15 A. Yes.
16 Q. What does it say the appeal of low tar
17 cigarettes is?
18 A. It says The appeal of low tars is simple
19 and single: Better for you, less harmful, easier on
20 the lungs, throat, etc.
21 Q. All right. Now, we've already covered
22 the fact that people have been looking at it as better
23 for you. But, they're using in that same sentence,
24 and when they same simple and single, easier on the
220
1 lungs, throat, etc. Is that what you've been
2 referring to?
3 A. Yes.
4 Q. Now, what does it say the weakness is of
5 low tar cigarettes?
6 A. It says The weakness or objection to low
7 tars is also simple: Tasteless, lacking the
8 satisfaction, and the related factors of hard to draw.
9 Q. Do you think they're advertising light
10 for that?
11 A. No.
12 Q. You were also asked about, you know, some
13 documents we had presented in the '64, '65, '66
14 period, especially with regard to that illusion of
15 filtration. And I want to refer to that same
16 document, which is Exhibit 5. And let me put up on
17 the screen. And again, this is during that same --
18 this is during 19 -- what's the date of this?
19 A. 1966.
20 Q. 1966. Well, let's see what their plan is
21 in 1966. Would you read that for us, please.
22 A. It should be noted that this report is an
23 evaluation of the market potential of a healthier
24 cigarette rather than a healthy cigarette. If we
221
1 could develop a medically and governmentally endorsed
2 healthy cigarette that tasted exactly like a Marlboro,
3 delivered the nicotine of a Marlboro, and was called
4 Marlboro, it would probably become the best selling
5 brand.
6 Q. What's the best selling brand today?
7 A. Marlboro Lights.
8 Q. Did it fit what the plan was?
9 A. Like a glove.
10 MR. LOMBARDI: Counsel, can you tell me which
11 exhibit that was.
12 MR. BRICKMAN: That was Exhibit 5.
13 MR. LOMBARDI: And what page was it?
14 MR. BRICKMAN: That was on page four.
15 MR. LOMBARDI: Thank you.
16 Q. Just a couple more points, Doctor. You
17 mentioned the fact that you weren't able, because
18 obviously the Judge wanted to give Counsel plenty of
19 opportunity to cross examine you, but you mentioned
20 the fact that you thought organizations like the
21 American Cancer Society had been deceived.
22 A. Yes.
23 Q. Is that in fact your opinion?
24 A. Yes, it is.
222
1 Q. What is that based on?
2 A. Well, it's based on the fact that they
3 thought you would get lower tar and nicotine, which
4 would be better for you, and that the smoker would
5 actually get less tar and nicotine, and in fact that
6 was a good thing. I think people still think that's a
7 good thing today. What the deception was is people
8 didn't get less tar and nicotine, and, therefore, the
9 product wasn't safer, wasn't better for you, wouldn't
10 help you quit smoking, would keep people smoking under
11 the illusion that they could get away with it, which
12 of course they can't. And it's been a public health
13 disaster in my opinion.
14 Q. You were asked in cross examination Who
15 first came up with the term psychological crutch.
16 Maybe it was the Surgeon General. I don't know. Who
17 used it today? Who was using that?
18 A. Who used that today?
19 Q. Yes.
20 A. That was George Weismann in a memo to Mr.
21 Cullman.
22 Q. And who testified under oath that one of
23 those psychological crutches was Light cigarettes?
24 A. Joseph Cullman.
223
1 Q. President of Philip Morris?
2 A. Philip Morris, right.
3 Q. Why do you believe that all or virtually
4 all smokers of Marlboro Lights and Cambridge Lights,
5 including those in Illinois, believe that those
6 cigarettes are safer or healthier?
13 A. I believe that because there would be no
14 other reason to smoke Marlboro Lights unless you
15 thought you were getting less tar and that it would be
16 better for you.
22 Q. And you were also asked about the fact
23 that you testified a lot in court, testified a lot on
24 tobacco matters, correct?
224
1 A. That's right. Yeah.
2 Q. A lot of people have been hurt by
3 tobacco, haven't they?
15 Q. A lot of people been hurt by these
16 cigarettes?
17 A. Lots.
4 RE-CROSS EXAMINATION
5 BY MR. LOMBARDI:
6 Q. On that market to healthier cigarettes.
7 I take it, Dr. Cummings, that you would agree that if
8 Philip Morris could develop a medically and
9 governmentally endorsed healthy cigarette, that would
10 be a good thing, wouldn't it?
11 A. If they delivered a cigarette that was
12 really less likely --
13 Q. No, I asked you a very specific question.
14 THE COURT: Just answer his question.
15 Q. I'll give it to you again, Doctor, just
16 so there's no ambiguity. You would agree that if
17 Philip Morris could develop a medically and
18 governmentally endorsed healthy cigarette, that would
19 be a good thing?
20 A. Yes.
21 Q. That's a good motive?
22 A. That would be a good thing.
23 Q. Now, you said that the American Cancer
24 Society was deceived. The American Cancer Society in
226
1 fact does epidemiological studies of cigarettes, is
2 that right?
3 A. Yes.
4 Q. And epidemiological studies take into
5 effect -- into account the natural circumstances of
6 use of the cigarette, is that right?
7 A. Yes, they do.
8 Q. And so, they take into account whether
9 compensation has occurred and things along those
10 lines, is that right?
11 A. No.
12 Q. It takes it into account --
13 THE COURT: He said no.
14 MR. LOMBARDI: I know. I'm asking another
15 question.
16 Q. You're familiar with Monograph Number 7,
17 is that right?
18 A. Yes.
19 Q. You're familiar with Dr. Samet, is that
20 right?
21 A. Yes, I am.
22 Q. And you're familiar with the fact that
23 Dr. Samet said only epidemiological data can measure
24 the risks of cigarettes under the natural
227
1 circumstances of use, is that right?
2 A. I'm not reading from anything
3 specifically.
4 MR. BRICKMAN: Could he have a copy of that
5 to look at?
6 MR. LOMBARDI: Can I just put it up on the
7 screen?
8 THE COURT: Sure.
9 MR. LOMBARDI: 4365.96.
10 MR. BRICKMAN: Could I get a copy also?
11 MR. LOMBARDI: We gave it to you yesterday.
12 This is from Monograph 7.
24 Q. Doctor, I'll blow up -- you recognize
228
1 this?
2 THE COURT: Give him a copy after it's over.
3 MR. LOMBARDI: I will, Judge. I'll do that.
4 Q. This is from Chapter 6 of Monograph 7.
5 You recognize this, don't you, Doctor?
6 A. Yes, I do.
7 Q. And this is the line I just read. I'll
8 read it again if you want. But, do you recognize that
9 line?
10 A. Yes, I do.
11 Q. And you know that that was in the
12 monograph for the FTC from 1996, is that right?
13 A. Actually the monograph was published by
14 the National Cancer Institute.
15 Q. That's fair enough. I made the mistake.
16 Because it was about the FTC method in large part, is
17 that right?
18 A. That's right.
19 Q. Okay. So, it says only epidemiologic
20 studies can provide information on modification of the
21 risks of smoking as the cigarette has evolved, and
22 only epidemiologic data can measure the risks of
23 cigarettes under the natural circumstances of use.
24 That's what Dr. Samet said, is that right?
229
1 A. That's what he said.
2 Q. Okay. And then if we go to the bottom of
3 page 79, please. That would be 4365.98. He says
4 something more about the nature of epidemiological
5 studies there. He says: Epidemiologic research has
6 had a central role in characterizing the consequences
7 of the changing cigarette, because it supplies direct
8 information on the consequences of varying tar and
9 nicotine yield products. Do you see that?
10 A. Yes.
11 Q. Thus, the findings inherently consider
12 compensatory changes in inhalation patterns or in
13 numbers of cigarettes smoked and provide the evidence
14 needed to answer the question of immediate public
15 health relevance whether disease risk varies with
16 cigarette tar and nicotine yield as determined by the
17 FTC method. Do you see that?
18 A. I see that.
19 Q. And you know what his conclusions were,
20 don't you, Doctor?
21 A. Yes.
22 Q. Okay. Let's move to page 4365.105. And
23 he quotes from the Surgeon General's Report in 1981.
24 Do you remember that? And quotes a conclusion from
230
1 that report?
2 A. Yes.
3 Q. And that report says: Today's filter
4 tipped, lower tar and nicotine cigarettes produce
5 lower rates of lung cancer than do their higher tar
6 and nicotine predecessors. Do you see that?
7 A. That's right.
8 Q. And then he points out that if you're
9 smoking, you have a much higher lung cancer incidence
10 than if you don't smoke in the next sentence, right?
11 A. That's right.
12 Q. Okay. And then he says, he updates it up
13 to 1996, right?
14 A. Right.
15 Q. And he says: The more recent case
16 control evidence remains consistent with the first
17 component of this conclusion. Do you see that?
18 A. That's what he says.
19 Q. And that was based on his review of the
20 most up-to-date epidemiologic evidence, is that right?
21 A. Well, I've actually spoken with Dr. Samet
22 about this --
231
1 A. Well, that's what it says.
2 THE COURT: Okay. Go on and ask your next
3 question. Sustain your objection.
4 Q. Okay. And that's what Dr. Samet said in
5 a publication that went out to the world in 1996,
6 isn't that right, Dr. Cummings?
7 A. He said it in a publication that actually
8 it was 1995, but that's what he said.
9 Q. I'll bet you I'm right on that, but I'll
10 concede the point.
11 A. Okay. Well, he wrote it in 1995.
12 MR. LOMBARDI: No further questions.
13 RE-DIRECT EXAMINATION
14 BY MR. BRICKMAN:
15 Q. First of all, was that on filter versus
16 unfilter or low tar versus high tar as we now know it
17 today?
18 A. Filter versus non-filter.
19 Q. And what were you about to say about Dr.
20 Samet?
24 A. I have talked to Dr. Samet. I believe
232
1 Dr. Samet has testified in cases after he wrote that.
2 And he now is of the opinion that low tar cigarettes
3 have not been shown to make any difference in terms of
4 lowering one's --