William Farone - Day 2 (Morning Session)
Day 2 (Morning Session)
11 THE COURT: All right. At this time we'll
12 resume direct examination of this witness. You may
13 proceed.
14 MR. TILLERY: Thank you, your Honor.
15 WILLIAM FARONE, called as a witness on behalf of the
16 Plaintiffs, having been previously sworn, was
17 continued to be examined and testify as follows:
18 CONTINUED DIRECT EXAMINATION
19 BY MR. TILLERY:
20 Q. I know this is going to be marked, I
21 believe your next exhibit number is 13, but since I've
22 pre-marked one, I would like to mark this as Number
23 14.
24 (At this time Plaintiff's Exhibit Number 14
4
1 was marked for identification.)
2 MR. TILLERY: Counsel. Mr. Lombardi, it's
3 the monograph, okay?
4 MR. LOMBARDI: Okay.
5 Q. I hand you what's been marked as Number
6 14. Can you identify it for the record, please.
7 A. It's Monograph 13 of the National
8 Institutes of Health, National Cancer Institute titled
9 Risks Associated With Smoking Cigarettes With Low
10 Machine Measured Yields of Tar and Nicotine.
11 Q. Did you have any role as a reviewer in
12 connection with that document, sir?
13 A. Yes, I did.
14 Q. What is that document?
15 A. This document is a, what we refer to as a
16 consensus document. It's a document that was put
17 together by various scientists. And the National
18 Cancer Institute asked them to put this document
19 together, and they asked a panel of other people like
20 my -- including myself to review this document to
21 insure that the information provided in this document
22 was the consensus of the scientific community with
23 regard to this subject.
24 Q. Now, you have this document, I think it's
5
1 marked as Number 11, don't you? If it isn't, please
2 correct me.
3 A. Yes, I do, and it is so marked.
4 Q. Now, can you -- you've read this you
5 indicated on the record yesterday. Is there a
6 reference in this document to Monograph 13?
7 A. Yes, there is.
8 Q. And is that the reference that appears on
9 page 13? I'm sorry, page 9?
10 A. Yes, it is.
11 Q. And just for the record, go through and
12 explain the reference that appears from Exhibit 11,
13 which is the insert that Philip Morris put in
14 newspapers around the country in November of last
15 year. What is the reference to Monograph 13?
16 A. The page nine is related to low tar
17 cigarettes, and it says, for example, there it says
18 There is no such thing as a safe cigarette. Low tar
19 and ultra low tar cigarettes are no exception. In
20 this section of our web site you'll find information
21 on what brand inscriptors like light and ultra light
22 mean and do not mean as well as links to public health
23 authorities on this topic. And they reference the
24 National Cancer Institute Monograph 13, and they have
6
1 a link to that. And there's a box in the lower right-
2 hand corner that describes this document, if you want
3 me to --
4 Q. Yes.
5 A. Read that. It says: News from the
6 National Cancer Institute, Low Tar Cigarettes:
7 Evidence does not indicate a benefit to public
8 health. Millions of Americans smoke low tar, mild, or
9 light cigarettes believing these cigarettes to be less
10 harmful than other cigarettes. In a new monograph
11 from the National Cancer Institute, NCI, titled Risks
12 Associated with Smoking Cigarettes and Low Machine
13 Measured Yields of Tar and Nicotine, national
14 scientific experts conclude that evidence does not
15 indicate a benefit to public health from changes in
16 cigarette design and manufacturing over the last 50
17 years.
18 The monograph clearly demonstrates that
19 people who switch to low tar or light cigarettes from
20 regular cigarettes are likely to inhale the same
21 amount of cancer causing toxins and they remain at
22 high risk for developing smoking related cancerss and
23 other diseases. This monograph is the 13th volume in
24 NCI's smoking and tobacco control monograph series
7
1 which began in 1991.
18 Q. Dr. Farone, can you now go to Exhibit 14,
19 page 60.
20 MR. TILLERY: At this point, your Honor, I
21 move the admission of Exhibit 14.
22 THE COURT: Any objection?
23 MR. LOMBARDI: That's the monograph? No
24 objection.
8
1 THE COURT: Admitted.
2 Q. Are you at page 60?
3 A. Yes, I am.
4 Q. All right. There are several different
5 chapters in this book that deal with different aspects
6 of low tar or light cigarettes. One of them is a
7 chapter written by Neal Benowitz dealing with
8 compensatory smoking. On page 60 does he list some
9 conclusions?
10 A. Yes, he does.
11 Q. What's the very first conclusion that he
12 lists?
13 A. Conclusion number one: Smokers who
14 regulate their intake of nicotine to –
22 Q. Were you a reviewer of this document,
23 sir?
24 A. Yes, I was.
10
1 Q. What's a reviewer do?
2 A. We read the entire document. And the
3 proposition that was put before us was to insure that
4 this represented the consensus of the scientific
5 community. If the reviewer has disagreements with any
6 of the subjects that are in here, then they bring them
7 forward. If they have suggestions on how they might
8 be changed or whatever, which I had made suggestions
9 during the course of preparation of this monograph,
10 the opinions in here are ones that I agree with and
11 that I have been involved in developing the text.
12 Q. Did those opinions involve those that
13 occur on page 60?
14 A. Yes, they do.
15 MR. TILLERY: All right. Now, at this point,
16 your Honor, I would ask the same question then.
17 Q. The conclusion number one, is that an
18 opinion that you hold as well, sir?
2 A. Yes. The point is that Dr. Benowitz and
3 others' general consensus of the people writing this
4 concluded that smokers regulate their intake of
5 nicotine to obtain the amount of nicotine that they
6 need to sustain their addiction. And that is
7 generally accepted by the people that were involved in
8 this monograph.
9 Q. If people who smoke Marlboro Lights --
10 strike the question. Do people who smoke Marlboro
11 Lights get the same nicotine does as people who smoke
12 Marlboro Regs?
12 Q. We'll come back to the question after we
13 talk about compensatory smoking, Dr. Farone. We will
14 come back at that point in time. I want to hand you
15 one exhibit, sir, a Group Exhibit 13.
22 Q. I'd like for you, first of all, to go
23 through Group Exhibit 13 and, if you can, familiarize
24 yourself with the documents contained within it.
13
1 There are several different Philip Morris documents.
2 I believe they run A through K, I believe. And I'd
3 like, first of all, if you can, tell me if you can
4 identify the specific documents.
5 A. I've gone through them, and, yes, I can.
6 Q. I'm sorry, sir?
7 A. I've gone through them, and, yes, I can.
8 Q. All right. Why don't you now, if you
9 can, just first of all, before we go any further,
10 identify what these documents are for the Court.
11 A. These documents relate to the behavior of
12 people who smoke, and particularly to the issue of
13 compensation; how people change the way they smoke
14 when they smoke a cigarette of a different yield.
15 Q. All right. And can you go through those
16 individually, and as you go through them just
17 reference the specific number 13-A, B, C, etc., to
18 identify them for the record, please.
19 A. 13-A is titled Some Unexpected
20 Observations on Tar And Nicotine and Smoker Behavior,
21 March 1st, 1974. And it is a document that talks
22 about changes in how people smoke given the tar
23 delivery of the cigarette that they're given. And
24 this is a Philip Morris document that I was aware of
14
1 at the time I was there.
2 Q. And if you can, if you recognize, you can
3 tell the Court as you go through this if you see any
4 names, reference, either as authors or as recipients
5 of the documents, you can explain that as you go
6 through the individual documents that we're referring
7 to.
8 A. Well, this particular document does not
9 have, apparently from what I see right now, an author
10 and recipient, however, I know all of the individuals
11 who are a part of the test panel that was used here,
12 and this was work that was done in Philip Morris to
13 understand how people smoke and the -- if I can find
14 the page, there's a page that summarizes the smokers
15 that participated in the study, or some of them
16 anyway.
17 Page -- Chart 10, page CKT 001053. And
18 you'll see some names there. Ken Burns at the time I
19 was there was the manager of the tobacco processing
20 area. Harry Grubbs was a chemist who ultimately
21 worked for me. And the Martin referred to here is
22 Peggy Martin. She was involved in the behavioral
23 science group. Mr. Krummel was an engineer there.
24 And this was done in order to show how Philip Morris
15
1 obtained information, what's called a puff report, to
2 determine how people smoke as contrasted to how the
3 Federal Trade Commission method is set up.
4 Q. All right. You can keep going with the
5 documents. I want to just go through --
6 A. All right. The next document, 13-B, is a
7 memorandum from Helmut Wakeham, who I knew first as
8 the vice president of Research and Development and
9 later as the senior vice president of Research and
10 Technology of Philip Morris, Inc. -- at the time he
11 wrote this he was vice president of R&D -- to Mr. Paul
12 Smith, who I do not know, Plastic Dilution Tipped
13 Parliament. And this document essentially discusses
14 compensation in the form of puff compensation, that
15 people take larger puffs on cigarettes of lower
16 delivery.
17 And on the second page, which is CKT 034321,
18 there's a list of copy people. Mr. Goldsmith at the
19 time I was there was president of Philip Morris, Inc.
20 Before I joined he was president of Philip Morris
21 USA. I do not know his position in 1967. Mr. Landry
22 was a marketing manager. Mr. Resnik, who later became
23 president of Philip Morris USA, at this time was
24 senior director. Dr. Seligman was in the NR&D as well
16
1 as Mr. Thomson.
2 Q. Okay.
3 A. The next document, 13-C, is a memorandum
4 written from Ray Fagan to Dr. H. Wakeham. Dr. Fagan
5 was a staff -- he did epidemiology. His actual
6 training was in veterinary medicine. And this
7 document discusses the same issues of the Federal
8 Trade Commission studies versus delivery of tar. And
9 this one specifically relates to the biological
10 significance of tar.
11 The 13-D is a project review. I mentioned
12 yesterday about the projects. This is a review of a
13 project headed by Dr. William Dunn, who was the head
14 of the Smoker -- at this time called Smoker Psychology
15 Program, generally the behavioral research area, dated
16 March 13th, 1973, again about how and why people
17 smoke. Through the pages here you'll see Mr. Frank
18 Ryan, who worked on these projects. He actually
19 carried out much of the work. And again, this
20 document discusses the idea of puff volume
21 compensation.
22 Exhibit 13-E is titled Smoker Simulation
23 Studies authored by George C. Kiritsis. Actually we
24 knew him as Gus Kiritsis. And he later became an
17
1 engineer. At this time he was working on the project
2 of developing equipment that would allow Philip Morris
3 to test cigarettes in a manner that was more similar
4 to the way people smoked them than the way the smoking
5 machine at the Federal Trade Commission used smoked
6 them. And on page CKT 023454 you'll see references to
7 the Engineering Services Division, Mr. W. F. Mutter
8 and F. M. Watson.
9 Frank Watson eventually, because of his
10 service in this project, came to work for me. Because
11 in the next paragraph you'll see Mr. Dave Clark and
12 Dr. Peter Martin in the computer section. One of the
13 initial divisions I had responsibility for was the
14 computer section, where we analyzed this. And due to
15 his work on this project, Mr. Watson eventually became
16 the manager of the computer section. This document
17 again discusses the machine that Philip Morris used to
18 obtain a better idea of deliveries than one obtained
19 from the Federal Trade Commission method.
20 Q. What is that machine?
21 A. Well, the machine is called a human smoke
22 simulator. And what one can do, it's a smoking
23 machine like the Federal Trade Commission uses, but
24 you can program it to take any size puff or for any
18
1 duration. It's more flexible. And what the
2 engineering and computer people did was to help write
3 the program to allow us to program that machine. Mr.
4 Watson, for example, made the hardware that allowed
5 the machine to take different sized puffs, different
6 puff volumes, different durations. So that you could
7 take a regular smoking machine, modify it in this
8 manner, and obtain information on deliveries under
9 different smoking profiles.
10 Q. Could you by just simply changing the
11 profiles in the computer alter the results?
12 A. Yes.
13 Q. Keep going, sir.
14 A. 13-F is a memorandum again from Dr. Fagan
15 to Dr. Helmut Wakeham dated March 7th, 1974 concerning
16 a moral issue on FTC tar. And this document discusses
17 the issue of whether or not Philip Morris has a moral
18 obligation or an ethical obligation to share the
19 information it has from programs on how people
20 actually smoke with the Federal Trade Commission.
21 13-G is a Philip Morris Europe research
22 report June 1974 that -- it doesn't say here who
23 prepared it, but I have a personal knowledge that this
24 came via Mr. Helmut Gaisch -- which shows that the
19
1 people in Europe, who were our colleagues in Philip
2 Morris, Inc., doing research in Europe had noticed the
3 same kinds of compensatory behavior that we had
4 noticed at Philip Morris. And it's described in this
5 memo.
6 Q. When you say Europe, what was going on in
7 Europe?
8 A. Well, there are research laboratories
9 that Philip Morris, Inc., had in Europe as part of
10 another subsidiary, Philip Morris Europe, and they
11 were at Neuchatel in Switzerland. And we had general
12 interaction and a lot of joint projects between the
13 two companies.
14 Q. All right. The next memo -- or the next
15 document, 13-H, actually is a letter summarizing the
16 one that we just saw, or talking about the one, and
17 this is written by Helmut Wakeham, who at that time
18 was vice president of R&D in the United States, and
19 it's going to Dr. Max Hausermann, who later would
20 become vice president in the United States and my
21 boss, but at this time he was the vice president of
22 R&D in Europe. And it discusses these results.
23 And particularly it goes on to say that you
24 probably should -- he proposed deferring publication
20
1 or presentations to committees or conferences,
2 particularly those attended by our competitors, for
3 obvious reasons, indicating the knowledge with regard
4 to how people actually smoke cigarettes.
5 13-I is a document written by attorneys for
6 Philip Morris to the Federal Trade Commission
7 essentially complaining about -- this is in 1981, July
8 10th, 1981. And the people working for me actually
9 developed a lot of the information that was used in
10 coming up with this letter. If you go to page CKT
11 014872, you'll see underneath Mr. Krash's signature
12 the names of two Philip Morris people, Alexander
13 Holtzman and G. Carlton Adkins. And those are the
14 people that the attorneys within Philip Morris who the
15 people working with me communicated our results with
16 regard to the topic of this, which is the product life
17 filter. This is a filter that appeared on a
18 competetive cigarette that had the very specific
19 property, as it says, of defeating the basic purpose
20 of the FTC's tar testing program.
21 13-J is an excerpt from Philip Morris' web
22 site, and it contains a series of information
23 concerning smoking issues -- quitting smoking,
24 cigarette ingredients, and so on, which is essentially
21
1 much of the same information we just saw in the insert
2 that we were talking about.
3 Q. All right.
14 A. Okay. And finally, 13-K is some
15 information also from Philip Morris USA, 2002,
16 describing the same issues, some of the information
17 we've discussed before, concerning the words ultra
18 light, light, medium, mild, all in quotes. And the
19 statement is that these are used as descriptors of the
20 strength of taste and flavors.
21 Q. Does that last 13-J correspond with this
22 onsert, sir?
23 A. Yes. Well, the words are all the same.
24 Yes, it's exactly the same. So, this 13-K actually is
22
1 apparently a copy of both sides of this onsert.
2 Q. All right. And we've used 14.
3 MR. TILLERY: And I'm going to call this
4 exhibit, let's call this 15.
5 (At this time Plaintiff's Exhibit Number 15
6 was marked for identification.)
21 Q. Now, sir, with reference to -- I mean,
22 I'm not limiting you by any means, but with reference
23 to those specific documents, if you need to refer to
24 them to answer the next series of questions, I'm going
23
1 to ask you some questions about the FTC testing system
2 and Philip Morris' understanding and recognition of
3 that system. When you began working at Philip Morris,
4 was there an understanding that there was a difference
5 between the way human smokers smoked cigarettes and
6 the way the FTC testing machine smoked the cigarette?
12 A. Yes, there was.
13 Q. Could you tell us what that was.
14 A. It was understood that the people, normal
15 smokers, did not smoke cigarettes the way the machine
16 did, and furthermore, there was an understanding of
17 exactly how they smoked cigarettes. That is, we knew
18 that puff compensation, that people would draw hard on
19 low delivery cigarettes. We had measured -- in my
20 review of the work while I was there, we had measured
21 the actual parameters for smokers and we had actually
22 determined the amount and duration for many different
23 kinds of smokers as to how they would draw harder on
24 cigarettes and how they would in fact obtain higher
24
1 yields than were obtained on the Federal Trade
2 Commission measurement.
3 In other words, it's not just the idea that
4 we knew that it was different, but we knew how it was
5 different and we knew how to use that information to
6 design the cigarettes.
7 Q. Explain that last point.
8 A. Well, if you wished to have ventilation
9 or dilution, we showed yesterday the picture of
10 cigarette with holes in the filter. If you put those
11 holes there to reduce delivery, that's a good idea to
12 reduce the toxins, right? We're going to put holes
13 there to reduce the delivery of the toxins. But, if
14 you don't put enough holes, you may in fact create,
15 because it burns differently, smoke that's more
16 toxic.
17 So, the issue is to put enough holes and
18 design the cigarette such that you cannot compensate,
19 that you cannot simply increase your delivery of the
20 tar by sucking harder. So, we knew that you needed to
21 put a lot of holes in there. As a matter of fact, we
22 used that knowledge to do the original Cambridge
23 cigarette to get the delivery way down to zero to
24 three milligrams on the FTC machine to be very
25
1 specific.
2 To make a cigarette that people could not
3 perform the act of compensation on, if you're talking
4 about a Marlboro at 16 milligrams of delivery, we knew
5 that the dilution or delivery of that cigarette had to
6 be brought down to below 5 milligrams or so. If it
7 wasn't that much lower, then smokers in an attempt to
8 achieve their nicotine requirement would draw harder
9 and obtain the same amount of tar.
10 Q. So, just so the record is clear, taking
11 into account all of the knowledge you had about the
12 design and knowing how the FTC system worked, was it
13 possible to design a cigarette that scored, let's say,
14 lower on the FTC machine while simultaneously
15 delivering the amount of nicotine that that smoker
16 would derive from a regular cigarette?
17 A. Yes.
18 Q. Was that something that happened?
19 A. It happened because many of the
20 cigarettes with minor reductions in tar, minor being
21 four or five units on the -- milligrams on the Federal
22 Trade Commission machine in fact were very very easy
23 for the smoker to compensate. And we knew that in
24 order to make that not happen, you needed to have a
26
1 very major reduction in the amount of FTC delivered
2 tar. In other words, you wanted to get it down to, as
3 I said before -- it depends on a lot of other factors
4 and design -- but as a rule of thumb, roughly below
5 five milligrams of tar.
6 Q. Was the Marlboro Light designed like
7 that?
8 A. No. The Marlboro Light was designed to
9 reduce the tar delivery by about four to five
10 milligrams of tar.
11 Q. But, was the Marlboro Light designed such
12 that it could score one level on the FTC machine while
13 simultaneously delivering the needed dose of nicotine
14 for the smoker?
17 A. Yes.
18 Q. Was there a time in the 1966 that before
19 the use of the FTC machine when Philip Morris and
20 other members of the industry objected to the use of
21 the machine?
22 A. Yes.
23 Q. Would you explain that to the Court.
24 A. The members of the industry, including
27
1 Philip Morris, felt that the machine was not
2 indicative of the way people smoked. They didn't
3 know, or at least they didn't say at that time,
4 exactly how people smoked, but they objected to the
5 use of the machine as providing information on how
6 people smoked.
7 Q. And they wrote a letter to the FTC to say
8 that, didn't they?
9 A. They did.
10 Q. And did that letter challenge the
11 adoption of the method?
12 A. It did.
13 Q. And in spite of the protestations by the
14 industry, did the FTC adopt the method?
15 A. They did.
16 Q. Is that the method you described
17 yesterday in your testimony here?
18 A. It is.
19 Q. All right. Now, after the method was
20 utilized by the FTC and this whole system started with
21 testing cigarettes, did the -- did this defendant
22 strenuously object at that point?
23 A. No. And one of the documents here shows
24 that by 1967, which is within a year of that letter,
28
1 they had performed research to determine how people
2 smoked and knew of puff compensation.
3 Q. And why is it that a -- why is it that
4 they would then want to keep the testing machine?
8 A. It provides a series of values that
9 people would see, but that some of them anyway, and
10 this is very difficult, because, as I say, if you make
11 it low enough, you can't compensate. But, it provides
12 an opportunity to sell cigarettes with lower tar
13 values that in fact they're essentially the same as
14 cigarettes of higher tar value.
15 Q. Why wouldn't you just drop the nicotine
16 level down below this four or five or three level?
17 Just take the Marlboro Light and design it so that it
18 only gives these smokers a two?
19 A. And those are tar levels.
20 Q. I'm sorry, tar levels, excuse me. I got
21 my tars and nicotines mixed up.
22 A. The nicotine is about 6 percent of that
23 in some cigarettes, and it rises up to about 10
24 percent in some other cigarettes.
29
1 Q. By the way, was that mistake I just made
2 -- what would happen if you gave a smoker that dose
3 of nicotine?
4 A. They would have a very difficult time. I
5 mean, they would draw very very lightly on the
6 cigarette, probably not -- it's like giving a
7 cigarette smoker a cigar and asking him to inhale it.
8 The dose would be reduced. The person would
9 compensate by only sucking a little bit, drawing a
10 little bit, trying to get a nicotine in their mouth.
11 Because that's a massive dose of nicotine.
12 Q. Is a massive dose of nicotine lethal?
13 A. Well, not two milligrams. But, there are
14 doses that are lethal. And, yes, people have died
15 from excess nicotine.
16 Q. Answer my question then going back to the
17 point of why not then reduce this level down, as you
18 were describing, down below four?
19 A. Well, in some cigarettes it was reduced
20 down below four, and those cigarettes basically were
21 -- did not have the market share, because it was too
22 difficult for many of the people who used them to
23 obtain enough nicotine from that product. So, they
24 would either smoke a lot more cigarettes, which was
30
1 expensive, or they would become frustrated because
2 they could not obtain the nicotine that they desire.
3 MR. TILLERY: Can you call up for me, please
4 -- and this is in your selection of documents, I
5 think it's 13-A -- can you call up CKT 001065.
6 Q. I believe this is the conclusion of 13-A,
7 Dr. Farone. Can you tell us what's referenced here?
8 A. Yes. This is the last page of the
9 document, Chart 17, this presentation that was
10 referenced here. And it says the FTC standardized
11 test should be retained, number one, because it gives
12 low numbers, and, two, it permits comparison between
13 brands.
14 Q. And this last sentence.
15 A. Meanwhile, we are reviewing our own
16 program in the light of these observation to design
17 cigarettes for improved acceptance.
18 Q. What's that mean?
19 A. This has to do with the knowing, the
20 knowledge of compensation, which is the subject of
21 this document, and designing the cigarette so that the
22 number is lower, but the amount of nicotine that can
23 be extracted by the smoker relatively easily by
24 changing their habits would be equal to the one of
31
1 higher tar delivery.
2 Q. You mentioned a document that involved
3 moral dilemma, and there were a series of documents I
4 think that led up to this Wakeham discussion of a
5 moral dilemma. Were there some human tests or studies
6 that were done there as well in addition to these
7 simulator studies?
8 A. Well, when we say simulator we have to be
9 very careful. There's two parts to it. One is
10 understanding how people smoke, particularly when
11 they're switching from a high tar product to a low tar
12 product. We're not talking about in the abstract of
13 taking 150 people and determining how they smoke their
14 product. That's not what we're talking about.
15 We're talking about a person who is smoking a
16 high yield product being given a low yield product or
17 the other way around and under that circumstance what
18 do they do? And it was learned very early on that
19 what they do is to compensate, to change the way they
20 smoke to obtain equal nicotine. Exhibit 13-F, which
21 is I think the one you're referring to --
22 Q. Yes.
23 A. Dr. Fagan to Dr. Wakeham occurs in 1974.
24 This is about seven years after the one that we just
32
1 -- the original Wakeham document. And it has to do
2 with not so much whether or not the test tells you how
3 people smoke, because in 1966, as we've seen, the
4 industry told the FTC that that's not how people
5 smoked. It has to do with the knowledge now gained in
6 that interim period of exactly how people smoked and
7 the information that I was just sharing, which is, for
8 example, there really isn't much -- there isn't any
9 difference between a ten milligram product, for the
10 most part, of tar and a fifteen milligram product.
11 That difference is so small in that test that it's
12 easy for people to overcome that difference when they
13 smoke.
14 So, it has to do with the knowledge of the
15 numbers are too low, okay, we just saw on the other
16 graph, and in fact, the FTC test doesn't give a fair
17 comparison of the yield that one is actually going to
18 get. Because a small change in FTC number is easily
19 overcome by the smoker.
23 Q. Dr. Farone, there's a reference in
24 paragraph -- or a point two. It says it permits
34
1 comparisons between brands. Is that a correct
2 statement?
3 A. Well, obviously it permits comparison
4 between brands, but the statement is whether -- I
5 mean, the underlying information conveyed is that
6 those brands are significantly different. In other
7 words, a comparison between two things that aren't
8 significantly different is allowed, but the object is
9 or we know at that time that they really aren't
10 different.
11 In other words, it has to do with the
12 precision of the test and not whether or not -- for
13 example, if I had a Marlboro and a Carlton, the
14 numbers are like 1 compared to 16, and Carlton is
15 lower. And I don't know of any way except by breaking
16 off the filter that you could smoke the Carlton to get
17 it equivolent to the Marlboro. So, in that case it's
18 a comparison.
19 Q. What about a Marlboro Light and a
20 Marlboro –
12 A. And it is a comparison and it's there on
13 tables and one can see it, but what we're talking
14 about is the meaning of that difference. That's all.
15 Q. What I was going to ask you is that Is
16 this test in terms of marketing a Marlboro Light and a
17 Marlboro Red an accurate basis for telling its
18 consumers that you can extract light or lower tar
19 nicotine from a light -- Marlboro Light compared to a
20 Marlboro Red?
22 Q. Is it accurate for that brand
23 comparison?
6 A. It does not allow knowledge of a
7 difference or the lack of difference between those two
8 products.
9 Q. Now, you were in the process of I think
10 at one point discussing this moral dilemma issue when
11 I interrupted you and pulled this document up. Were
12 were you concluded answering that point?
13 A. I'm not sure.
20 A. I'm not sure. I keep pointing out that
21 this was a document written by Dr. Fagan --
22 Q. Fagan, excuse me.
23 A. To Dr. Wakeham.
24 Q. You have to hit me in the head sometimes.
37
1 I'm sorry. Go ahead.
2 A. And I had an opportunity to discuss this
3 with Dr. Fagan. And the -- back in 1976 actually.
4 And the issue here is not critical of FTC. The issue
5 here is simply telling people what Philip Morris has
6 learned in detail about how people smoke between the
7 time the test was put in place in 1966, '67, and now
8 it's, you know, seven or eight years later. So, the
9 issue is what information do you share.
10 Q. Did they share their results of this
11 testing with the FTC?
12 A. No. And I think in the previous memo we
13 saw that there was even some concern about publishing
14 it in the literature, because it might be useful to
15 competitors to find out the same information. I think
16 we saw that in the letter that Dr. Wakeham wrote to
17 Dr. Hauserman.
18 Q. What did this defendant do, however, when
19 it believed that a competetor was benefitting from the
20 FTC testing method flaws -- what they perceived to be
21 flaws?
22 A. That is the Barclay document that we
23 discussed. That was the filter that appeared on a
24 competetive product that when placed in the machine
38
1 gave a normal reading, but when you smoked it it was
2 very easy to occlude, or block, the ventilation holes,
3 giving you a much higher yield. And Philip Morris
4 complained about that to the Federal Trade Commission.
5 MR. TILLERY: Can you pull up 014868.
6 Q. What is this document, sir?
7 A. Well, this is the letter written by
8 attorneys for Philip Morris to the Federal Trade
9 Commission on this topic of the Barclay filter.
10 Q. Is this the document that you were just
11 referencing?
12 A. Yes.
13 Q. And could you tell the Court what they
14 were complaining about.
15 A. Well, the last paragraph on that page, if
16 you bring it up: As a result -- well: As a result of
17 its unusual construction, the Barclay filter is
18 duplicitous -- it functions one way on the
19 Commission's present smoking machine, but in a
20 radically different way in the smoker's mouth. While
21 Barclay is proclaimed to be an ultra low tar
22 cigarette, in truth and in substance it is not. By
23 artful design, the Barclay filter exploits a loophole
24 in the testing protocol and thereby effectively
39
1 destroys the reliability of the tar rankings produced
2 by the current FTC testing method.
3 Q. Did Philip Morris market Marlboro Lights
4 using the FTC testing results as a basis for the word
5 light?
9 Q. Did Philip Morris market Marlboro Lights
10 using, first of all let's just say the FTC testing
11 results?
12 A. I'm not sure I understand the question.
13 I mean, they marketed Marlboro Lights, and to my
14 knowledge they didn't put it on the pack or in the
15 ads, but from FTC listings it was lower. They knew
16 that it would be lowered in the listings of the
17 Federal Trade Commission, and, therefore, somebody
18 looking at those numbers would say it's lower. But,
19 the term lights to me has an entirely different
20 meaning.
21 Q. Okay. To your knowledge, sir, did Philip
22 Morris ever communicate this statement that I'm about
23 to show you, and you can reference it yourself from
24 13-J if you want to look at it --
40
6 A. We're looking at 13-J?
7 Q. 13-J. Do you have that up there?
8 Actually we referenced this I think yesterday, the
9 document. And I want -- if you look at page eight of
10 the insert. It's in this, the body, here?
11 A. Yes.
12 Q. All right. And it reads: Smokers should
13 not assume that brand descriptors such as light or
14 ultra light indicate with precision either the actual
15 amount of tar and nicotine inhaled from any particular
16 cigarettes or the relative amount as compared to
17 competing cigarette brands. That's what they say in
18 November 2002. Do you see that point?
19 A. I see that, yes.
20 Q. All right. To your knowledge, did Philip
21 Morris ever communicate that statement to Marlboro
22 Lights or Cambridge Light smokers in a similar
23 newspaper insert or communication prior to November
24 2002?
41
22 Q. Now, we have marked I think as Exhibit 15
23 the -- what's been referenced in this courtroom as the
24 onsert. I think it's the last page of the Group
42
1 Exhibit 13.
2 A. Yes. It's 13-K is what I have.
3 Q. 13-K, all right. Now, I'm going to go
4 through a series of questions with reference to that
5 onsert, okay?
6 A. Yes.
7 Q. Did Philip Morris ever tell consumers of
8 its Marlboro Lights and Cambridge Light cigarettes
9 that the testing machine did not give them an accurate
10 indication of the tar and nicotine actually inhaled?
14 A. Not before 2002.
15 Q. Prior to November 2002 did Philip Morris
16 ever tell smokers of its Marlboro Lights and Cambridge
17 Light cigarettes in an attachment to packaging like
18 that -- and I want to make sure you're focussed on my
19 specific question that I'm asking you with respect to
20 packaging of that type -- did they ever tell them
21 these things?
13 Q. Start over just so we're clear. He's
14 made his objection. I want to make sure we're all set
15 here. To your knowledge, prior to November 2002 did
16 Philip Morris ever tell smokers of its Marlboro Lights
17 and Cambridge Light cigarettes in an attachment to its
18 packaging like the one that you have in front of you
19 and that we've referenced here that the tar and
20 nicotine numbers are not meant to communicate the
21 amount of tar or nicotine actually inhaled by any
22 smoker as individuals do not smoke like the machine
23 used in the government test method?
24 A. To my knowledge, they did not.
44
1 Q. Did they ever tell them that the amount
2 of tar and nicotine you inhale will be higher than the
3 stated tar and nicotine numbers if, for example, you
4 block ventilation holes, inhale more deeply, take more
5 puffs, or smoke more cigarettes?
6 A. To my knowledge, they did not.
7 Q. Did they ever tell them again in a
8 package onsert like this one that -- and when I say
9 them, just for the record so there's no question
10 later, I'm referencing the consumers, including
11 Illinois consumers, people who purchased cigarettes in
12 this state, of Marlboro Lights and Cambridge Light
13 cigarettes, did they ever tell them that, quote,
14 Similarly, if you smoke grand with descriptors such as
15 ultra light, light, medium, mild, or lowest, you may
16 not inhale less tar and nicotine than you would from
17 other brands?
18 A. To my knowledge, they did not.
19 Q. Did they ever tell those same people with
20 respect to the same type of onsert that, quote, You
21 should not assume that cigarette brands using
22 descriptors like ultra light, light, medium, or mild
23 are less harmful than full flavor cigarette brands or
24 that smoking such cigarette brands will help you quit
45
1 smoking?
2 A. To my knowledge, they did not.
3 Q. Throughout the time period of this class
4 -- and for your references, sir, the class period
5 with respect to Marlboro Lights starts in 1971 in sale
6 and Cambridge Lights '86 and it extends to early
7 2001. During this time period, to your knowledge, was
8 Philip Morris able to have conducted tests to better
9 quantify the relative risks of Marlboro Lights versus
10 Marlboro Reds?
3 A. The relative risk between those two
4 products during that class period to my knowledge was
5 not directly tested, but experiments that show what
6 the relative risk could be or was were conducted for
7 products of similar construction.
8 Q. I want to show you what's been marked as
9 Exhibit 16 and ask you if you can identify it.
10 A. Yes, I can. This is a copy of an article
11 that I wrote for Tobacco Control Journal published in
12 December of last year.
13 Q. And what's this involve?
14 A. This involves a discussion of harm
15 reduction, that is, reducing risk in cigarettes. And
16 it's been a little over 25 years since I was directly
17 involved in it. And I wrote this because this
18 particular journal issue was related to harm reduction
19 and threw out certain ideas out and out for reducing
20 harm in cigarettes. I've been participating in
21 government and public sponsored programs concerning
22 harm reduction, and this is an editorial, if you will,
23 on how harm reduction could have taken place 25 years
24 ago and did not and why I think -- why I've concluded
47
1 that harm reduction now needs to follow the same
2 procedures that could have been followed 25 years ago.
3 Q. All right.
19 Q. Dr. Farone, how does this relate to the
20 scope of what you and I have spoken about over the
21 last day or so?
22 A. This is directly related to the scope.
23 And in fact, as part of my expert witness work for
24 this case, I've prepared some documents that I think
50
1 we're going to show at some point that build on it,
2 that go beyond this particular document, which in fact
3 much of it was prepared because of this case and
4 because of the fact that the issues that are discussed
5 here about the terminology light, mild, low tar, are
6 at issue right now in the scientific community. And
7 the purpose of this document was to point out that
8 those terms light, low tar, mild, don't really mean,
9 even on the face of them, even with Federal Trade
10 Commission numbers, what they appear to mean.
51
1 Q. Dr. Farone, do you have an opinion to a
2 reasonable degree of certainty as to whether defendant
3 Philip Morris throughout the class period that I've
4 defined for you here knew that the Federal Trade
5 Commission measured, the test measured tar and
6 nicotine numbers were not indicative of the actual
7 delivery of nicotine and tar to smokers of Marlboro
8 Lights and Cambridge Light cigarettes?
17 A. I do have such an opinion.
18 Q. What is your opinion, sir?
19 A. They did know. They did not communicate
20 it.
21 Q. Do you have an opinion to a reasonable
22 degree of certainty as to whether Philip Morris knew
23 again through the class period I've identified that
24 the FTC machine measured tar and nicotine numbers had
52
1 no comparative value for Marlboro Lights compared to
2 Marlboro Regulars and for Cambridge Lights compared to
3 Cambridge Regular cigarettes?
12 A. Yes, I do have an opinion.
13 Q. What is your opinion, sir?
14 A. That for those products specifically,
15 that comparative value does not exist.
16 Q. We talked a little bit about this
17 yesterday for one of the brands involved in this
18 litigation, but I want to make sure the record is
19 clear with respect to both. Throughout the class
20 periods that I've identified for the -- both of the
21 brands involved in this case, Marlboro Lights and
22 Cambridge Lights, did Philip Morris intend the
23 descriptor light to communicate to consumers the fact
24 that the cigarettes were less harmful?
53
10 A. Yes, I do.
11 Q. Your opinion, sir?
12 A. It was the intent to communicate the idea
13 that they were less harmful. The term light, that was
14 the intent of the use of the term light.
15 Q. Throughout the class period with respect
16 to Marlboro Lights, did Philip Morris intend the term
17 lower tar and nicotine to communicate to the consumer
18 that the consumer would actually get less tar and
19 nicotine from the cigarette?
23 A. Yes, they did.
24 Q. Did -- to your knowledge and belief, to a
54
1 reasonable degree of certainty and your expertise, did
2 Philip Morris intend for the term lower tar and
3 nicotine to communicate to the consumer that Marlboro
4 Lights were less harmful than a regular cigarette like
5 a Marlboro?
8 A. Yes, they did.
9 Q. I want to move on to another topic at
10 this point in time.
11 (At this time Plaintiff's Group Exhibit
12 Number 17 was marked for identification.)
13 Q. I'd like you to do the same thing you did
14 with Group Exhibit 13. Is there a Number 17 on this,
15 did you say?
16 A. Yes, there is.
17 Q. And what I'm asking you to do is to go
18 through this collection of documents and first of all
19 identify them after you've familiarized yourself with
20 them.
5 Q. Mr. Lombardi has pointed out that there's
6 duplications on this topic that, frankly, it's for
7 ease of reference as you go through them. It doesn't
8 matter. I mean, as long as we're -- certainly these
9 same documents relate to the next topic, which is
10 compensation I'm going to talk to you about, sir.
11 A. I think I've sorted out the duplications,
12 but --
13 Q. You're going to have to reference those,
14 though, at some point. It might make it actually
15 easier as we go through this rather than harkening
16 back to 13. Because she's going to be referencing
17 these in sequence.
18 A. Okay. Let's start with -- oh, what do
19 you want?
20 Q. Go ahead. What I want you to do, with
21 the exception of those that are already in Group
22 Exhibit 13 and you've already identified, go through
23 the additional documents.
24 A. Okay. 17-A is an additional document
56
1 that was written in 1961 by Helmut Wakeham, then the
2 vice president of R&D, or I think just made vice
3 president of R&D, to Mr. Hugh Cullman. Both gentlemen
4 I knew while I was there. Hugh Cullman was the senior
5 executive in Philip Morris. The next, B and C, I
6 think are duplicates from 13. The next document that
7 appears different to me is 17-D, which is a report
8 written by Mr. Schori, approved by Dr. Dunn. This is
9 in 1971.
10 THE COURT: I'm sorry which?
11 A. 17-D.
12 THE COURT: Oh, D. I'm sorry.
13 A. And that's entitled Tar, Nicotine, and
14 Smoking Behavior. And this is a special report,
15 research report, in the Philip Morris Research &
16 Development Center.
17 The next one is E. And it appears to be a
18 manuscript or paper that is based on a report that I
19 just read. The authors are Mr. Schori and Dr. Dunn.
20 And it has slightly different title. It says Tar,
21 Nicotine, and Cigarette Consumption.
22 The next few are duplicative, I believe, of
23 what's in 13.
24 The next different one that I see is J as in
57
1 Juliet. That's a May 1975 memorandum from Dr. William
2 Dunn to Dr. R. B. Seligman entitled Observations on
3 the Relationship of Nicotine Change and Sales Change
4 in Marlboro.
5 And finally a document, K, from Barbro
6 Goodman to Mr. Leo Meyer dated September 17th, 1975.
7 It says Marlboro, Marlboro Lights, Study and Delivery
8 Data. And that is a memorandum concerning Miss
9 Goodman's research work.
24 Q. What is compensation?
58
1 A. Compensation is the change in smoker
2 behavior to titrate or equilibrate the amount of
3 nicotine received by a smoker.
4 Q. And you should also tell us what
5 titration is then.
6 A. To obtain the same amount that one
7 requires or needs.
8 Q. All right. What is it that determines
9 how an individual smokes a cigarette?
10 A. Well –
16 A. Well, the general consensus as I've been
17 involved in it and understand it scientifically is
18 that when one starts to smoke, one builds up a
19 tolerance, if you will, for nicotine. That level is
20 different for different people. Some people develop
21 higher tolerances, some people have lower tolerances.
22 Eventually that tolerance becomes a desired amount.
23 And it becomes sort of a required amount to sustain
24 the dependence on nicotine. So, there's a set point,
59
1 let's call it that to make it simple, and that may
2 change in a smoker over time. But, there's a set
3 point. And then smokers will modulate their smoking
4 behavior in many different ways to obtain that desired
5 amount of nicotine.
6 Q. All right. Was Philip Morris aware of
7 that phenomenon at the time you started working for
8 them?
14 Q. Okay. My question to you, sir, was
15 whether or not Philip Morris was aware of the
16 phenomenon of compensation when you were there?
17 A. Yes, the people at Philip Morris as
18 described in these documents, these are Philip Morris
19 people writing these documents, and they're
20 documenting this phenomenon. And they're discussing
21 that we were aware of and used this understanding of
22 the compensation, titration, the nicotine facet of
23 what was required to make a smoker feel that they
24 received an adequate level of nicotine.
61
1 Q. Why don't you, referencing these
2 documents, if you would, take us through and show how
3 it is that these documents demonstrate an awareness of
4 this phenomenon of compensation.
5 A. Okay. Well, I've unfortunately scrambled
6 them, but let's start with A.
7 Q. All right.
8 A. This is an early document, 1961. And it
9 talks about -- this is in the early days when filters
10 were new. Ventilation was not as widely used a
11 technology at that time. We're just putting filters
12 on cigarettes by and large at that time.
13 And in the first paragraph, the last
14 sentence, for example -- let me put it up. It's CKT
15 023060. And if we go to the last sentence of the
16 first paragraph -- no, the last sentence. Start with
17 the last sentence. There we go. The King non-filter
18 smokers and the regular non-filter smokers may
19 actually be smoking to a comparable delivery, the
20 former group omitting the last puff or two and the
21 latter group smoking down to the bitter end. This is
22 puff compensation recognize -- and I would point out
23 this is five years before the Federal Trade Commission
24 tests. This is 1961.
62
1 And then it talks about switching in the next
2 paragraph, the second paragraph. Yeah, the yellow
3 highlight. If you can just blow that up. As we know,
4 all too often a smoker who switches to a hi-fi,
5 meaning highly filtered, cigarette winds up smoking
6 more units in order to provide himself with the same
7 delivery which he had before. Now, the smoking of
8 more cigarettes is a different type of compensation.
9 And if you don't have holes in the filter so that
10 sucking harder is easy to compensate, that's another
11 -- and deliveries are widely different. That's
12 another compensation method, simply smoking more
13 cigarettes.
14 I have to find B now. Which one is B?
15 Q. I'm sorry. It's the 1967, August 11th,
16 1967 document. Paul Smith.
17 A. Oh, that's the memo. Yes, okay. There
18 we have it. This is the memo from Dr. Wakeham to Paul
19 Smith. It's about six years later. And this is
20 shortly after the Federal Trade Commission test is
21 adopted. And in this one, if you can sort of blow-up
22 the second to the last paragraph, the last sentence
23 there. Notice it says: Not so with the human smoker
24 who appears to adjust to the diluted smoke -- now
63
1 we're talking about dilution, filtered ventilation --
2 by taking a larger puff so that he still gets about
3 the same amount of equivalent undiluted smoke.
4 So, this is a document I referred to earlier
5 as showing that at this particular time was the
6 recognition that when you have dilution or
7 ventilation, the mechanism for compensation is puff
8 adjustment.
9 Q. Could you go to the top of the second
10 page of that document. Just enlarge that whole
11 paragraph. There we go.
12 A. This is a further conclusion: Smokers
13 thus apparently defeating the purpose of dilution to
14 give him less smoke per puff. He is certainly not
15 performing like the standard smoking machine, and to
16 this extent the smoking machine data appear to be
17 erroneous and misleading. It has probably always been
18 so for diluted smoked cigarettes, whether dilution is
19 obtained by porous paper or holes in the filter.
20 And I would like to point out that at this
21 time very highly diluted cigarettes, like 99 percent
22 or 95 percent where you can't do the compensation,
23 were not on the market, were not really that
24 widespread. So, this -- in my opinion this relates to
64
1 only mildly diluted cigarettes such as Marlboro Lights
2 compared to Marlboro. It doesn't relate to Marlboro
3 compared to, say, Cambridge lowest or one of the
4 really low delivery cigarettes.
5 Q. The next document -- I don't know if
6 you're using these in order -- is the September 1970
7 document.
8 A. The -- this is CKT 000901. And this is
9 Dr. Fagan's letter to Dr. Wakeham concerning
10 biological significance of tar. And the one important
11 aspect of this is the beginning of the second
12 paragraph where it says: There is a second assumption
13 which is implicit in the FTC's requirement for the
14 revelation of tar and nicotine content. This
15 assumption is that tar is tar is tar. That is,
16 meaning that there's no chemical distinction between
17 it. And Dr. Fagan correctly points out that there is
18 little evidence to validate it. And you know, as we
19 know and knew then, that there is differences between
20 tar and the carcinogenic potentials in tar.
21 If you go to the second page, at the middle
22 of the page: Smokers determine how much smoke they
23 take in, not the cigarette. And this again goes to
24 the same point, that with certain cigarettes -- it
65
1 says: The number of cigarettes per smoker has
2 increased. With certain kinds of cigarettes the
3 compensation is by increasing number. And then the
4 other kind of compensation we've talked about is
5 drawing harder. Okay. The next one is D.
6 Q. Yes. And that, for the record, is the
7 Schori document?
8 A. Yes, this is the special research report
9 that Mr. Schori wrote. And if we go to the abstract,
10 because that's the quickest way to understand the
11 document, on CKT 0006288. The test here is to look at
12 cigarettes of different tar levels and different
13 nicotine deliveries within those tar levels. And it
14 talks about the accustoms to a certain level. If you
15 could blow-up the yellow spot here.
16 When they had them switched between these
17 cigarettes, as tar delivery decreased from that to
18 which the smokers were accustomed, cigarette
19 consumption increased. This resulted in a tendency
20 for the smokers daily intake of tar to remain constant
21 even though the tar deliveries of the cigarettes he
22 smoked differed markedly. Again, this is a different
23 compensation mechanism that he's discussing.
24 Q. Now, before we leave that document, the
66
1 next page, please.
2 MR. TILLERY: And blow that up, please.
3 A. The last sentence is, and I'll mark
4 here: These finding support the hypothesis that the
5 smoker does have daily intake quotas for tar and/or
6 nicotine and that he titrates his smoke intake to meet
7 his quotas.
8 The next one, E, is essentially the same
9 research result turned into a paper as opposed to a
10 research report. And it's a different sort of --
11 that's CKT 006673. If you notice in the middle of the
12 -- well, the first sentence of the second paragraph
13 there, this again is talking about cigarette
14 consumption rate. The number of cigarettes smoked a
15 day varied as a function of the nicotine delivery.
16 So, if you increase it, they smoke less. If you
17 decrease it, they smoke more. And it again talks
18 about consumption in order to maintain their normal
19 quota on the bottom of this paragraph. And the last
20 sentence I think is very important. No support was
21 found for the analogous notion of a daily tar intake
22 quota. The next document in order is CKT 023486.
23 Q. Had you identified this earlier, sir?
24 A. Yes, it was under a part of Group 13.
67
1 And I'm looking for -- there's several topics
2 discussed in this. And the relevant sections with
3 regard to puffing behavior occurs on page three, CKT
4 023488. And what this does simply is show that puffs
5 were being measured, the number of puffs, the volume
6 of the puffs, and the puff durations -- how long the
7 puffs were being taken -- and flow rates. And then
8 the total volume flow smoked per cigarette in the far
9 right-hand column.
10 So, this gives some idea of how these
11 cigarettes are actually smoked, at least for the group
12 of people that were being studied here. And I might
13 emphasize this is not a switching study to tell you
14 what happens when you change between brand. It's
15 simply categorizing different types of smoking
16 behavior.
17 And on the next page, that is -- well, it's
18 an outline about Carlton showing an increase in puff
19 volume. It shows increases in puff volume, etc., and
20 apparent smoker attempts to compensate for slow
21 delivery. And then if you notice later in that same
22 topic, the last two paragraphs they talk about
23 actually calculating what the real deliveries would be
24 in terms of the milligram of FTC tars compared to what
68
1 is listed in the Federal Trade Commission tests.
2 Q. What's the significance of that?
3 A. Well, if you look at the Federal Trade
4 Commission test and you say Okay, this is what it is
5 under those conditions, you can attempt to extrapolate
6 from those conditions if you know how the puff
7 parameters change. In other words, if you increase
8 the volume by 20 percent -- the assumption you're
9 making here is that that's linear change. And then if
10 you assume a linear porportionality of tar and volume,
11 as they say -- that's in the fourth paragraph from the
12 top. So in this particular one, recent CI reports --
13 that's cigarette information; that's an internal
14 Philip Morris report -- suggest that Carlton delivers
15 3.4 milligrams of FTC tar. And then it goes on to
16 say: Our smokers average 673 cc on Carlton,
17 suggesting their tar intake was more like 7.2.
18 And this is a point I was making earlier that
19 we knew at the time, if you make it low enough, if you
20 notice, it's pretty hard to get up to 16 there. I
21 mean, they increased it by double. The closer you are
22 to the difference between cigarettes, the easier it is
23 to compensate it.
20 (At this time a recess was taken, after which
21 the following proceedings were had in open
22 court.)
23 THE COURT: You may be seated. You may
24 proceed.
81
1 CONTINUED DIRECT EXAMINATION
2 BY MR. TILLERY:
3 Q. Dr. Farone, again, if you need to refer
4 to them, you may refer to the last collection of
5 documents in the group exhibit to answer these
6 questions. Not limited to that, of course. Was there
7 an acknowledgment or understanding that compensation
8 was an unconscious act?
17 Q. While you were at Philip Morris, within
18 the areas in which you worked, which you carefully
19 described yesterday, and the people that you met with,
20 and during the time that you had discussions about
21 topics of smoking that dealt in any way with this
22 compensation or related issues, was it acknowledged by
23 the scientists and others who met to discuss these
24 topics that compensation was largely an unconscious
82
1 act?
5 A. Yes, it was.
6 Q. And would you explain that to the Court,
7 please.
8 A. Well, these topics were discussed among
9 the management of the company, which included all of
10 the people at various times. I was there eight years,
11 and we had these meetings every month, and these
12 topics were discussed several times a year at these
13 meetings. And everyone was not only aware of it, but
14 they were very interested in that subject, and they
15 understood that -- how compensation worked and these
16 issues that we've been talking about were the subject
17 of our meetings between Research & Development people,
18 within Research and Development, and between the
19 Research & Development people and marketing people,
20 and the senior management of the company. And if you
21 like, I could go back through the names each time, but
22 --
23 Q. Did -- after you started there in 1976,
24 did Philip Morris continue to use their understanding
83
1 of the phenomena of compensation in designing the
2 cigarettes?
5 A. Yes, they did.
6 Q. And to your knowledge, was there any
7 effort on the part of people that you worked with
8 there, including your supervisors, to restrict any
9 public acknowledgment on the part of Philip Morris of
10 the phenomena of compensation?
11 A. Yes, there was.
12 Q. Could you explain to to the Court.
13 A. Well, we saw one document where
14 publication was deferred. And I was actually involved
15 as a reviewer of the papers that were sent out of
16 Philip Morris and was involved in trying to write --
17 or help the scientists write the papers in such a way
18 that they could be published, acknowledging some of
19 the facets of compensation.
20 For example, I remember papers on hole
21 occlusion. One method we haven't really talked about
22 is covering up holes as being a method of
23 compensation. And some of the scientists wished to
24 publish a paper on that, and it was denied several
84
1 times until it was worded in such a way that one could
2 assert that the problem was in the significant level
3 of the experiment.
4 (At this time Plaintiff's Group Exhibit
5 Number 18 was marked for identification.)
6 Q. I'm going to show you another group
7 exhibit. This is Group Exhibit 18.
23 Q. Are these documents, sir, that are
24 contained in Group Exhibit 18 that are from web site
86
1 information dealing with other companies, cigarette
2 manufacturing companies, that deal with their
3 understanding and knowledge of the phenomenon of
4 compensation?
5 A. They're documents that deal with their
6 understanding of compensation and with nicotine
7 requirements.
8 Q. Are these the type of documents that
9 experts such as yourself would typically rely upon and
10 use in offering opinions of this sort?
11 A. Yes, for the industry as a whole. I
12 mean, we're not specifically interested in a given
13 company or whatever. These are -- this shows the
14 scientific understanding within the industry of all of
15 these phenomena generally.
19 Q. Was it important for Philip Morris to
20 understand what the industry was doing with
21 cigarettes?
24 Q. While you were there?
88
3 A. Yes. We had a very extensive interest in
4 what we called competetive intelligence, in going to
5 scientific meetings, discussions, wherein
6 conversations and papers were given by all people
7 within the industry and discussions took place on
8 cigarette technology, tobacco smoke technology, all of
9 that kind of thing. As a matter of fact, there's a
10 special conference that was held every year called the
11 Tobacco Chemists Research Conference for the specific
12 purpose of tobacco companies exchanging technical
13 information.
14 Q. Now, based upon those experiences and
15 also based on these and similar documents that you've
16 indicated are the type that you would rely upon, do
17 you have an opinion as to whether or not there was a
18 recognition within the industry of the phenomena of
19 compensation?
20 A. Based on the many many documents I've
21 reviewed from the other companies and discussions with
22 scientists from other companies that I've met since --
23 in the last eight years, the answer to that is yes.
24 Q. I want to now mark as the next, I guess
89
1 that's 19.
2 (At this time Plaintiff's Group Exhibit
3 Number 19 was marked for identification.)
4 Q. Would you take your time and look at
5 Group Exhibit 19, please. I think it actually
6 involves just two documents.
7 A. Yes, 19-A and 19-B.
8 Q. Do you recognize these documents?
9 A. Yes, I do.
10 Q. What do these documents involve?
11 A. These documents involve the later stages
12 of what was called the smoking simulator program. By
13 later I don't mean taking it up through today, but the
14 fact the program started in the late 60's, early 70's,
15 and when I arrived at Philip Morris in '76 it was
16 ongoing and relatively mature program. They're
17 written by Barbro, B-a-r-b-r-o, Goodman. And the
18 first one is a memo and the second is a special
19 report, which is the type of document that was
20 produced in R&D whenever a project had what they felt
21 were significant findings.
22 Q. And what was the significance of those
23 findings to the scientists at Philip Morris of Miss
24 Goodman's -- was it Dr. Goodman?
90
1 A. Not that I remember. I don't think so.
2 Q. All right. Barbro Goodman's conclusions
3 and studies.
4 A. The earlier work had determined how
5 people smoked. This work took how they smoked and
6 incorporated into equipment, as I mentioned earlier,
7 that could be programmed to smoke like certain
8 smokers. So, one would obtain better information on
9 the actual delivery and yields and nicotine from
10 cigarettes under a wide variety of smoking profiles
11 and not be limited simply to the Federal Trade
12 Commission numbers.
13 Q. Did the conclusions -- for example,
14 looking at the first document. Were the conclusions
15 that Marlboro 85 smokers did not achieve any reduction
16 in smoke intake? I may have that backwards.
23 Q. Direct your attention, if you would --
24 what I'm asking you, first of all, is: What were the
91
1 conclusions that the scientists there relied upon by
2 these tests that were being done by Barbro Goodman?
3 A. It was an attempt to obtain the actual
4 deliveries. I mean, the only way to do it was
5 actually on the smoker. But, it gave a better idea of
6 how people smoked these products than the FTC
7 methods. And for example, the conclusion I think is
8 in that paragraph. Marlboro 85 smokers in the study
9 does not achieve any reduction in smoke intake by
10 smoking a cigarette. Marlboro Lights normally
11 considered lower in delivery. And then they talk
12 about Conversely, the Marlboro Light smoker did not
13 increase their smoke intake when they changed to the
14 regular delivery.
15 And this is totally consistent with the
16 consensus knowledge on Monograph 13 and what we
17 discussed earlier of this titration effect and smoking
18 for a specific level of nicotine.
19 Q. And were these results of Goodman's work
20 there disseminated and discussed?
21 A. Yes.
22 Q. Explain that to the judge.
23 A. Well, this information was important to
24 understand how to design cigarettes to in fact, if --
92
1 if you wish to avoid this, as I think I mentioned
2 earlier, you have to change the product to a
3 significant enough extent that this mechanism of
4 compensation cannot be used. You have to make very
5 large changes in the product to achieve a significant
6 reduction in the tar.
7 Q. Did you ever hear any presentations by
8 Goodman while you were there?
9 A. Oh, yes, virtually all of the ones that
10 she gave during the period of '76 to '84, because her
11 work was presented at these Friday meetings that I
12 mentioned yesterday.
13 Q. And was there ever any criticism that she
14 voiced of her own studies?
15 A. Not that I recall.
16 Q. Did anybody ever suggest that because of
17 the number of subjects in some of her studies that her
18 results were not reliable?
19 A. Not that I recall.
20 Q. Okay. Do you have an opinion as to
21 whether Marlboro Lights were specifically designed to
22 deliver the same tar and nicotine impact satisfaction
23 to the smoker as a regular cigarette like a Marlboro
24 Red, sir?
8 A. Yes, I do.
9 Q. What is your opinion?
10 A. As it was, it was designed to be as
11 similar to Marlboro Regulars as possible.
12 Q. And was that effort realized? In other
13 words, in terms of the design, did they accomplish
14 that by using knowledge of the science of design of
15 cigarettes to achieve a cigarette that effectively
16 delivered the same tar and nicotine impact to the
17 consumer?
18 A. Yes.
19 Q. In Marlboro Light, I'm saying.
20 A. Yes, they did.
21 Q. Regardless of the variations -- you
22 mentioned this threshhold level that some cigarette
23 smokers have, and you said that they smoke and they
24 obtain this threshhold level. Regardless of the
94
1 variations in the threshhold level of nicotine needed
2 by different smokers, were Marlboro Light and
3 Cambridge Light cigarettes designed to allow
4 habituated smokers to extract their own individually
5 needed dose of nicotine?
8 A. Yes, they were.
9 Q. And would that design that you've spoken
10 about with these cigarettes make them compensatable,
11 if that's a term, for all such smokers of Marlboro
12 Lights and Cambridge Lights regardless of the
13 individual differences in their smoking behavior?
20 A. Yes, they were.
21 Q. Could you explain that last point.
22 A. Well, the major point is that the
23 difference in design between these two products is
24 small. It's a relatively small difference. And that
95
1 allows any of these mechanisms we've discussed to
2 occur. And the objective with -- based when I was
3 there anyway, was to maintain the product, Marlboro,
4 the flagship product of Philip Morris, and all of its
5 extensions to be as desirable and as similar as
6 possible. So that the design characteristics for
7 Marlboro is one thing. When you get to Cambridge
8 Lights and some of the other brands where there's this
9 small difference in FTC tar, that same scientific
10 knowledge is applied. It's very easy to compensate,
11 or as you coin the word, make them compensatable.
Q. Dr. Farone, before we move to this
7 document, I again refer you to page -- you don't have
8 to look it up. You've already done that. You've got
9 another stack of materials in front of you. Page 60
10 of the Monograph 13, first conclusion, quote: Smokers
11 regulate their intake of nicotine to obtain the amount
12 of nicotine that they need to sustain their addiction,
13 end quote. Do you agree with that statement?
6 A. Yes, I do.
7 Q. Were Marlboro Lights, Marlboro Reds,
8 using those two cigarettes by comparison, if people
9 smoke a Marlboro Light, are they designed to get the
10 same amount of nicotine as a Marlboro Red?
22 A. Yes, they were designed, and I interpret
23 all to mean to a reasonable degree of scientific
24 certainty statistically valid. I'm sure there's
98
1 probably one smoker that it doesn't work for, or two,
2 but we're talking about a very very high level of
3 confidence here, 99.9 percent.
4 Q. All right.
19 Q. Could you tell us your background in
20 testing products for relative toxicity.
21 A. I alluded to it yesterday. When I was at
22 Lever Brothers I was in charge of the entire
23 toxicology, microbiology. Every consumer product
24 testing thing that we did was done under my
99
1 supervision and went out to all regulatory officials
2 under my signature.
3 Q. What does toxicity mean?
4 A. Toxicity is the ability of a material to
5 cause toxic effect. And there's many such effects.
6 Q. When you joined Philip Morris in 1976,
7 were you aware of industry standards for testing
8 toxicity or relative harm of products?
9 A. Yes, I was.
10 Q. What's the proper way to evaluate the
11 relative exposure of a product or a design change?
12 A. Well, it starts with the human exposure.
13 You have to understand how the product is exposed to
14 humans. For example, a bar of soap hits skin, but you
15 might get some in your eye, and maybe a baby might
16 pick it up and eat it. So, the skin test would be the
17 predominant mode of testing. And then you would
18 follow that by potentially ingestion and eye
19 irritation.
20 Now, if you know that it happens in humans,
21 though, you're not going to go and test the products
22 in humans. So, once we understand what the mode of
23 exposure in humans is or could be, we then develop or
24 use several, not just one, but several animal models
100
1 to kind of estimate the same chemical effects in the
2 animals that would occur in humans.
3 For example, for eye irritation we use
4 rabbits' eyes and primates. We use actually monkeys'
5 eyes. And for skin you can use a wide variety of
6 animals.
7 In addition to that, if you don't want to or
8 it becomes cumbersome and expensive to look at the
9 animal level, and this is a big move in the industry
10 since the time -- in the testing area and science of
11 testing since the time I was at Philip Morris, you try
12 to use simpler systems, cell level systems.
13 Because chemically, let's say we're talking
14 about irritation, the irritation starts by the
15 chemical attaching itself to a cell, or the mutation,
16 or whatever chemical interaction we're talking about,
17 that starts at an individual cell. The cells are part
18 of the animal. And then we move to humans.
19 So, we have what we call a step-wise approach
20 or a battery of tests. And you try to start with the
21 simplest ones. And if it shows harm there, usually
22 you disregard it. If it's acceptable, then you go to
23 the next level of testing.
24 So, for example, if we tested guinea pigs'
101
1 skin for a bar of soap and they irritated the guinea
2 pigs' skin, we probably wouldn't use that formula. We
3 wouldn't use that formula. If it passed that test,
4 then we might go to human clinical or something like
5 that.
6 And the key things we're worried about in
7 toxicity are carcinogenicity. Next is mutagenicity.
8 Mutagenicity is something that happens to all
9 carcinogens. That is, all carcinogens are mutagens,
10 but not all mutations cause cancer. You can have a
11 mutation which gives you a benign tumor or it simply
12 causes a reproductive change or something else.
13 When it causes a reproductive change, we call
14 it a teratogen. It's a different form of toxicity.
15 And then the simplest class are just irritants. And
16 irritants cause cell damage. And if cells have to be
17 repaired many many many times, usually they
18 misfunction. So, that's the four basic types of
19 toxicity.
20 Q. What's the purpose of such a toxicity
21 evaluation in terms of cigarettes?
22 A. Well, in terms of cigarettes, you start
23 with back in the 50's the knowledge that they can --
24 the chemicals in them cause cancer. And so, if you're
102
1 talking about making a product that's acceptable, you
2 wouldn't want to make a product that caused any more
3 relative risk, and ideally you would like to make a
4 product that causes less relative risk. And that was
5 the premise of my point.
6 (At this time Plaintiff's Group Exhibit
7 Number 20 was marked for identification.)
8 Q. Why don't you take a look at the
9 collection of documents that I've handed you. This is
10 Group 20. Let's first of all see if you can recognize
11 them and are familiar with them.
12 A. Yes, I am.
13 Q. Let's take a look at that first
14 document. I think this is a document that we looked
15 at yesterday, at least with respect to slide five of
16 this presentation. Would you look at the third
17 slide. And I believe it's entitled --
18 MR. TILLERY: You want to pull that up. That
19 would be -- there we go. Great.
20 Q. What is this? What's the document, first
21 of all?
22 A. This is a document from March 7th of 2002
23 prepared by Philip Morris. It's -- the author appears
24 to be Roger Waugh, Ph.D.. And it's a presentation, it
103
1 appears, being given to Foreign Correspondents USA
2 Richmond Tour it says on the front page.
3 Q. And what are we talking about here on
4 this slide three, which is I guess the -- it is the
5 third page of the document.
6 A. This is some of the topics we were just
7 talking about. Talking about developing and marketing
8 a cigarette that may reduce the risk of smoking. And
9 it lists some points.
10 Q. Do you agree with those points?
11 A. Yes.
12 Q. And walk us through them.
13 A. The first one is to design a cigarette
14 that significantly, and that's important to be
15 significant, reduces the potentially harmful
16 constituents in the inhaled smoke.
17 And then second point is to provide
18 scientific evidence that this change reduces the
19 biological activity in appropriate cellular and
20 laboratory animal models. And we just talked about
21 why you use cellular models and why you use animal
22 models.
23 And then after you you've done that, the
24 step-wise approach, then once you've proven they're
104
1 okay in cellular and animal models, then you measure
2 adult smoker exposure to the smoke from these
3 cigarettes.
4 And then finally you attempt to obtain
5 scientific community consensus. You share these
6 results with the scientific public health community to
7 gain their consensus that the test results were valid
8 and relevant and that they support the conclusion that
9 the cigarette reduced the risk of smoking.
10 Q. Are you happy with this discussion of the
11 steps that you would take?
12 A. Yes, absolutely.
13 Q. Were these steps taken while you were
14 there at Philip Morris with respect to Marlboro Lights
15 and Cambridge Light cigarettes?
16 A. No, not while I was there.
17 Q. Let's go on to slide nine. This would be
18 -- I'm sorry. This would be -- there it is. Now,
19 what's the topic of this in terms of acceptable --
20 acceptability testing versus harm reduction testing?
21 A. It talks about two different things. An
22 acceptable product by this definition would have no
23 significant increase in existing activity and it
24 wouldn't introduce any new activity. They're defining
105
1 that as being acceptable. And an acceptable product,
2 as I understand it from reading this and reading the
3 entire presentation, would not necessarily reduce
4 harm, but it certainly wouldn't increase it. And the
5 harm reduction, it would decrease existing activity.
6 So, in order for it to be a product for which you
7 would say it decreased harm, it would have to meet
8 those four steps that we saw on the slide three.
9 Q. Does this document tell you that at least
10 as of March 7th, 2002 the scientists at Philip Morris
11 understood the steps required to develop a less
12 harmful cigarette?
16 A. Yes, these are the steps that the
17 industry -- or people in the industry that would test
18 products for human exposure would normally use.
19 THE COURT: Well, the question was as to
20 Philip Morris.
21 A. Yes.
22 Q. Philip Morris.
23 A. Yes. Yes, they would. Sorry.
24 Q. Were these revolutionary concepts in
106
1 March of 2002?
2 A. No.
3 Q. And were the scientists at Philip Morris
4 aware of these steps in 1976 when you were there?
5 A. Yes.
16 A. Yes. And they were specifically
17 discussed by me as part of my employment.
18 Q. Explain that, please.
19 A. Well, when I went to work there, we
20 discussed these issues with regard to how to make a
21 safer cigarette. And this is 1976. Well, actually
22 December '75 and the first couple months of '76 when I
23 interviewed at Philip Morris, these types of issues
24 were discussed as being part of the procedure for
107
1 making a safer cigarette, because I was being hired
2 for that purpose, and this was my background at Lever
3 Brothers. So, in discussing with people that I
4 interviewed, these topics came up.
5 Q. What specific kinds of testing are you
6 aware of, sir, that Philip Morris conducted while you
7 were working there?
8 A. In Philip Morris R&D in Richmond,
9 Virginia we did predominantly in-vitro tests.
10 In-vitro tests were cell level tests -- petri dish,
11 test tubes. There were several different varieties of
12 those tests. And at facilities outside of Richmond
13 there were tests done like mouse skin painting,
14 inhalation studies. Most of the animal tests were
15 done outside. Other than tests on nicotine analogues,
16 no animal tests were done in Richmond in the United
17 States Philip Morris Laboratories. They were all done
18 outside the company.
19 Q. When you say outside, where were they
20 done?
21 A. Well, most of them that I'm aware of were
22 done at a company called INBIFO in Cologne, Germany.
23 Some of them were done at other laboratories like
24 Hazelton. I remember there were some tests that were
108
1 done there. And maybe one or two other laboratories.
2 But, the vast majority were done at INBIFO.
3 Q. What did the results of the testing that
4 you are personally aware of that were performed at
5 Philip Morris demonstrate about Marlboro Lights and
6 Cambridge Light cigarettes?
7 A. All of the information that we had during
8 that period indicated that when you dilute a
9 cigarette, that is, add small amounts of ventilation,
10 or even larger amounts, up to maybe 50 percent, you
11 would increase its relative toxicity.
12 Q. Let's make sure we understand on the
13 record what relative toxicity means. You started off
14 with different terms. You started off with
15 carcinogenic, mutagenic, and you said the -- I think
16 the way you were describing is that mutagenic are
17 those constituents are the portal through which
18 carcinogens must pass before they get there is what I
19 understood you to say.
20 A. That is.
21 Q. Now, how does the term of you say
22 relative toxicity relate to those?
23 A. In addition to the biological
24 measurements of toxicity, there's also chemical
109
1 measurements, right? Because we can look at whether
2 or not we increase or decrease chemicals we know to be
3 toxic. But, in terms of relative toxicity in the
4 biological sense, you're comparing it to some
5 standard.
6 In the case of Marlboro and Marlboro Lights,
7 you maybe compare Marlboro Lights to Marlboro or a
8 cigarette like Marlboro Lights to a cigarette like
9 Marlboro. And you would look at it to see whether
10 there was any increase in any of those. Did you
11 increase the irritancy? Did you increase the
12 mutagenicity? Did you increase the carcinogenicity?
13 And the mutagenicity studies that we did at
14 Philip Morris were used as an indicator for not only
15 just mutagenicity, but also for carcinogenicity.
16 Q. And then back to that question then in
17 terms of what you learned from the studies that you
18 did about Cambridge Lights and Marlboro Light
19 cigarettes.
23 Q. You just defined and qualified what I
24 asked you about, mutagenic, carcinogenic, toxicity of
112
1 components of smoke. I was asking you with respect to
2 your knowledge of the testing specifically at Philip
3 Morris, how then Marlboro Lights and Cambridge Lights
4 would fit in that picture.
5 A. Yes. Well, there's several parts to
6 that. First of all, Philip Morris, when I was at
7 Philip Morris, we relied heavily, extensively, on the
8 mutagenesis assay, as you will see from these
9 documents that we're about to discuss. And in fact,
10 in Richmond at Philip Morris, that's virtually the
11 only test that was done. The whole idea is that
12 while, if you get a mutagen -- this is a step-wise
13 approach we just got through discussing. If you have
14 a mutagen, that's clear evidence you need to look at
15 the carcinogenicity.
16 And mutations on their own are not good. So,
17 the existence of increased level of mutation is
18 certainly a hazard. It doesn't -- the only point I
19 was making, it doesn't mean that every mutation leads
20 to increased cancer, but it leads to a mutation, I
21 mean, so it's still a bad thing.
22 Q. All right.
23 A. And the question is following this
24 step-wise approach that we just talked about.
113
1 Q. All right. I want to first focus as we
2 go through this on -- excuse me -- on mouse skin
3 painting. And I would like to back up for a second.
4 Yesterday during Mr. Lombardi's opening statement he
5 indicated that the scientific community established a
6 dose response relationship between cigarette smoke and
7 disease in the 1950's and 1960's through mouse skin
8 painting. Are you aware of such testimony?
9 A. Yes, I am. Very extensively.
10 Q. And were you aware of that testing before
11 you joined Philip Morris?
12 A. Yes, I was.
13 Q. When did you first become familiar with
14 such testing?
15 A. During my college, you know, 1959, 1960,
16 something like that. The testing was done in the
17 early 50's, but my educational career got to the point
18 where it became of interest with regard to chemicals,
19 specifically carcinogens and that type of testing,
20 around 1959.
21 Q. When you joined Philip Morris did the
22 group of scientists with whom you worked know the
23 testing that causally linked cigarette smoke and
24 disease?
114
1 A. Yes.
2 Q. Okay. Was that basically a recognized
3 principle, as he suggested in this dose response
4 relationship?
5 A. Yes. And again, what we're talking about
6 here, for specific chemicals you know the specific
7 dose response. Like if we're talking about one of the
8 chemicals we had on the board, you can give the mouse
9 or you can give any kind of test animals different
10 levels of chemicals. You find the number of cancers,
11 or whatever you're looking for, at each level, and
12 that allows you to extrapolate back to very low
13 levels.
14 And for smoke, because it's a very
15 complicated mixture of all those chemicals, the
16 importance of the dose response for smoke was showing
17 that the dose response for smoke followed the general
18 idea of all chemicals. Even though it was a
19 complicated mixture and some might go up and down, you
20 could use the test to show relative carcinogenic
21 potential of cigarette tar.
22 Q. Are you aware of any mouse skin painting
23 test results where Philip Morris determined the impact
24 of ventilation on tumor rates?
115
1 A. Yes, I am.
2 Q. Could you direct us to those results.
3 A. The result I'm aware of, which is in
4 Exhibit B, CKT 046281.
5 Q. And you'll have to explain this document
6 to the Court.
7 A. Yes.
8 Q. This, by the way, would be B of the Group
9 Exhibit 20, wouldn't it, sir?
10 A. Yes.
11 Q. All right.
12 A. This is the -- right at the very top
13 there's a code name, X6D7AKJ. And for simplicity I
14 would like to be able to refer back to it as AKJ going
15 forward so I don't have to keep repeating. And under
16 Roman Numeral I here you'll see that this is a mouse
17 skin painting study that was done at INBIFO in
18 Cologne, Germany, 1977, at the time that I was
19 employed at Philip Morris.
20 And the report came out at around June 11th,
21 1979. And the reason for the disparity in the dates
22 is because these tests take many weeks. You notice
23 here it says 78 weeks. So, it generally is over a
24 year, year and a quarter, year and a half before you
116
1 see significant development of tumors.
2 Q. Would you explain to the Court how this
3 test takes place.
4 A. There are many things you can test. You
5 can test tar or you can test total particulate matter,
6 which is the tar before you analyze for the water and
7 nicotine. As a matter of fact, that's usually what's
8 tested, because the test tar is difficult. You kind
9 of have to take away the water and the nicotine.
10 So, normally they test either the total
11 particulate matter off the pads, the Cambridge pads we
12 talked about, or you can test whole smoke condensate.
13 And there are many ways of condensing and collecting
14 smoke. You can do it with a cold trap. You can do it
15 with different kinds of collection devices.
16 So, but, the general idea in all of them is
17 we're going to collect this aersol material and maybe
18 some of the gas coming off the cigarette and we're
19 going to paint this onto a mouse, on his stomach
20 usually, and we're going to then do this periodically,
21 and we will use different doses. And over a period of
22 time we will observe the formation of tumors.
23 Q. All right. Would you explain this
24 document that is B of Group Exhibit 20.
117
1 A. Yes. The low tar reference in this
2 document -- if you could highlight the first set of
3 results. Yeah, that. Okay. The AKJ is the low tar
4 reference. The other reference in here is 2R1.
5 That's a Kentucky reference.
6 Q. How do you know that?
7 A. My experience and, you know, I was there
8 for eight years. That's the general designation for
9 the Kentucky reference cigarette in everything I've
10 seen. So, that's a reference cigarette. That is not
11 ventilated. The 2R1 is not ventilated. The AKJ is
12 ventilated. And you'll notice the AKJ is being
13 presented at three different doses. The one to four
14 ratio is lower than the one to two, which is lower
15 than the one to one.
16 And you can see the dose response that Mr.
17 Lombardi was talking about. The more of it I apply,
18 the higher the response of tumor rate. And you can
19 also see that highest rate, the 54.2 percent rate in
20 the 78 weeks, is greater than the 42.6 percent rate
21 from the 2R1 reference cigarette.
22 I would also, if you could go back, and just
23 to give some idea of the group reproducibility of
24 these kinds of tests, they are normally different, you
118
1 know, plus or minus say 5 percent or 10 percent
2 spread.
3 If you look down in the other one at 62
4 weeks, and blow that one up, you'll see that the AKJ
5 is also tested there and had a slightly higher rate,
6 which would lead one to believe that the average for
7 AKJ is actually higher than what you saw in the first
8 test. But, certainly it's showing a considerable
9 amount of tumor genicity. Not different than the ALB
10 here, which if you look right above is the AKJ with a
11 chemical additive. WS-14 I know from my personal
12 experience at Philip Morris is a menthol analog we
13 were working on.
14 So, essentially that addition of that
15 chemical didn't make much difference. And you have
16 three numbers roughly for AKJ compared to the control,
17 for which over time we have other numbers. And
18 basically there's a difference in the wrong
19 direction. You get more tumors from a diluted
20 cigarette.
21 Q. All right. How do you draw that
22 conclusion? That may sound like a foregone conclusion
23 to you, but I would like for you to explain it to the
24 Court.
119
1 A. Because the tumor rate is higher in the
2 diluted cigarette than in the undiluted cigarette.
3 Q. And the next document in the list is C.
4 How does that relate to this other document?
5 A. Well, C, if we could go to CKT 900102.
6 MR. TILLERY: That's not on there. That's
7 all right.
8 A. Well, okay. I'll read. The purpose of
9 that document is only to show that AKJ cigarettes for
10 groups one gram to four grams with tip ventilation and
11 for groups five to eight with plugged tip ventilation
12 dilution. So, it's just identified that the AKJ
13 cigarette, which we're going to see in some other
14 documents also, is a diluted cigarette.
15 Q. It's a ventilated cigarette?
16 A. Ventilated cigarette.
17 Q. Is the purpose of then the C document,
18 does that verify that it is a ventilated cigarette?
19 A. It verifies that the cigarette used at
20 INBIFO is a ventilated cigarette. And as we'll see,
21 similar results were done on different tests in
22 Richmond on a similar cigarette.
23 Q. When you were at Philip Morris did you
24 discuss with fellow scientists the fact that mouse
120
1 skin painting test results correlated with Ames
2 Salmonella Assay with respect to cigarettes smoke
3 tests?
4 A. Yes.
5 Q. Could you explain who you had those
6 conversations with.
7 A. Virtually everyone in Research &
8 Development Department. Dr. Osdene was in charge of
9 that particular area. We discussed that from my very
10 first stages of employment. The people who ran them,
11 Dr. Pages at that time. Then Dr. -- Mr. Kuhn, who
12 later came to work for me, was the head of the
13 biochemical research division at that time. We had
14 extensive discussions. And I participated in their
15 project to the extent of suggesting things that they
16 should test. And this was a subject of their annual
17 presentations, as we'll see. So that we'll have a
18 list of all the scientists who were involved in these
19 discussions on some of the documents we're going to
20 see. But, certainly everyone in the Research &
21 Development Department at a level of project leader or
22 above was involved in understanding the meaning of the
23 Ames test.
24 Q. Would you explain -- I think you have
121
1 alluded to the Ames test. But, I think it would help
2 if you could explain it more in greater detail on the
3 record.
4 A. Dr. Bruce Ames discovered a particular
5 microorganism that had mutated. Salmonella, a strain
6 of Salmonella. And he found that if you applied
7 certain chemicals to it known to be mutagens,
8 carcinogens some of them, that it would revert back to
9 its original form. So, by measuring the -- a number
10 of in a petri dish, a test tube, you could measure the
11 number of these bacteria that changed back to their
12 original state.
13 And there are two ways of running the test.
14 You could run an activated with some chemicals that
15 would help that change or not. And by using this, one
16 could develop a quantitative measure of, because you
17 could do dose response for this just like you could
18 for carcinogenicity, and show the more chemical I put
19 in, the bigger the changes I got.
20 And you were able to then determine, if you
21 were studying like a formulation of toothpaste or
22 whatever it was, mouthwash, and if it had some
23 chemicals in it that caused that response, you didn't
24 want that. So, you could use this as a test for
122
1 that.
2 Philip Morris used that test for TBM and
3 whole smoke condensate. They adapted the test
4 specifically for whole smoke condensate. And by the
5 time I was there, well, certainly by 1977 this was the
6 test that was used predominantly for all types of
7 testing.
8 Q. Are you familiar with the next document
9 in the group, sir?
10 A. Yes, I am.
11 Q. And could you tell the Court what that
12 document is.
13 A. If I could have the front page of --
14 MR. LOMBARDI: Which letter are you on?
15 MR. TILLERY: D.
16 Q. And I don't know if that document is
17 loaded.
18 A. Okay. Well anyway, it's a note from
19 Robert B. Seligman, who was my boss at the time this
20 was written. And this is a set of notes that was
21 developed by him and Dr. Osdene and people working for
22 Dr. Osdene that was discussed at director's meeting
23 that I participated in.
24 MR. TILLERY: Actually it looks like we are
123
1 able to do that with a --
2 A. Well, to point out just it's got a symbol
3 here, a delta. And delta is one of the projects that
4 was ongoing at Philip Morris at that time. And it's
5 the early predecessor of the Accord cigarette. It
6 says Update after it, and that may be confusing to
7 people. What Dr. Seligman was doing was updating with
8 his presentation to senior management at the company
9 with our knowledge concerning the reduced tar
10 reduction in cigarettes.
11 Q. I want to direct you to, first to 5435.
12 MR. TILLERY: It would be that section right
13 there. Perfect. Under the word Generally.
14 Q. Do you see that?
15 A. Yes.
16 Q. What does that indicate?
17 A. Well, it's a statement that was being
18 presented which says that With regard to the
19 Salmonella assay, or the Ames test, that generally
20 good correlation with skin painting results when used
21 with, and that says microsome activation. So, that's
22 addition of another chemical to enhance the rate at
23 which the mutations occur. And it was used because it
24 correlated with skin painting. That meant you could
124
1 do a lot of testing without having to use up a lot of
2 mice.
3 There's also on the previous page -- no, on
4 page 5434. This is a summary of the skin painting
5 knowledge at that time. The Ames test is being used
6 as a correlated device with that, with skin painting.
7 But, there's an important point here that the skin
8 painting knowledge at the time said that the activity
9 of the condensate was lowered by some things here --
10 Some reconstitution processes, stems, non-tobacco
11 cigarettes.
12 And if you look further on that, it says:
13 However, all of the above must be as 100 percent of
14 the filler. And, for example, when added to leaf as
15 part of the filler have -- stems, for example, when
16 added to leaf as part of the filler have no measurable
17 effect.
18 So, this just goes -- one of the reasons for
19 using the Ames test, because it correlated with the
20 mouse skin painting test, was because you could get
21 into how much of something do I have to add before I
22 make the reduction or how much of something do I have
23 to change. So, without every change using mouse skin
24 paint, you could use the Ames test very simply and
125
1 conveniently for that change.
2 Q. Were you at this meeting where this was
3 discussed?
4 A. Yes, I was.
5 Q. And could you just for the record point
6 out at the time of that meeting who Robert B. Seligman
7 was.
8 A. Vice president of Research &
9 Development. He was my immediate superior. And he
10 reported to at that time Mr. Wally McDowell, who was
11 senior VP, who reported to the president of Philip
12 Morris USA.
13 Q. Now, this document refers to reference
14 cigarettes. What's a reference cigarette?
15 A. A reference cigarette is a cigarette used
16 by the entire industry and many universities, the
17 major ones. They were designed, the original ones, by
18 the University of Kentucky, but later other
19 universities. It became sort of a committee thing.
20 And they're made in very large quantities and
21 distributed among all the people who do any kind of
22 testing. And the idea behind reference cigarette is
23 biological tests vary. That is, they change with
24 time. The mice strains aren't always the same and so
126
1 on. And the way that you calibrate those tests is
2 that you use a reference cigarette. And most of the
3 results that you report are to the reference
4 cigarette.
5 For example, if you test formulation A versus
6 formulation -- versus a reference cigarettes, and it's
7 higher, and then a year later you want to test
8 formulation B, you can test that against the reference
9 cigarette; and if it's lower, then you know that B is
10 lower than A. In other words, reference means it's
11 exactly what you would think. You need to have a
12 control in biological experiments, and the reference
13 cigarette performs that function.
14 Q. Why not use them on cigarettes as sold?
15 A. Well, you should use them on cigarettes
16 as sold.
17 Q. Why weren't they done? Why wasn't it
18 done that way?
19 A. Well, at Philip Morris the policy was not
20 to test cigarettes as sold, at least in Richmond.
21 Q. Why not?
22 A. There was a concern that results of those
23 tests would end up in litigation and be used against
24 the company.
127
1 Q. Did you do any testing of real cigarettes
2 in the context then of smoking and health? That is,
3 toxicity, mutagenicity, tumor genicity, or any other
4 test of relative harm?
5 A. At Philip Morris?
6 Q. Yes.
7 A. Well, during the time I was there, no.
8 But, recently I'm aware of results -- some results
9 where Philip Morris has begun to test as-marketed
10 cigarettes in some of these tests. And these
11 documents will be presented somewhat later in the
12 stack.
13 Q. And when I -- I guess I'm talking about
14 all the time that you were there and your access to
15 information while you were there. To your knowledge,
16 were any such tests done on as-marketed cigarettes on
17 any time while you were there until you left?
18 A. Well, that is an interesting subject.
19 I've never -- I've only seen one such document. I was
20 told by Dr. Osdene. And Dr. Seligman told me that I
21 needed to do all of that through Dr. Osdene. We would
22 make changes or suggest changes. The cigarettes would
23 be made. And those cigarettes would be tested either
24 in the biochemical research lab or in -- outside the
128
1 company.
2 When those changes -- or when the suggestion
3 was made that they talked to -- they that looked at
4 real chemicals -- I mean, real cigarettes like
5 Marlboro Lights versus Marlboro, my understanding was
6 at the time, and what I was told specifically by Dr.
7 Osdene, Dr. Seligman, Dr. Hauserman, Dr. Wakeham, Dr.
8 James Charles, who worked for Dr. Osdene, Mr. Robert
9 Carpenter, Mr. William Kuhn, and maybe a few other
10 people that I've forgotten, that those cigarettes
11 would be made up and sent secretly to a test
12 laboratory in Germany, Cologne, Germany, the INBIFO
13 Laboratory.
14 They would be tested there. And then the
15 results of those tests would be sent back directly to
16 Dr. Osdene. Not to Philip Morris, but to Dr. Osdene
17 at his home. Dr. Osdene would then inform us, us
18 being the people working on those projects, as to
19 which things were better or worse than some of the
20 others.
21 So, therefore, what happened in practice was
22 that most of the information about how to make
23 cigarettes safer came from prototypes, cigarettes that
24 were like those that are marketed. And, for example,
129
1 the mouse skin painting that we just looked at wasn't
2 Marlboro Lights versus Marlboro. It was a cigarette
3 that was undiluted versus a cigarette that was
4 diluted.
5 You can infer that the result is the same;
6 but, in a court you can say Well, gee, that's not
7 Marlboro versus Marlboro Lights. And so that was why
8 the testing was done on prototypes that we had access
9 to and not on the as-designed, on the real cigarettes
10 they were marketing.
11 Q. Have you seen the codes that are used on
12 INBIFO testing?
13 A. Yes. We just saw, for example, one of
14 them.
15 Q. Have you seen others where there's been
16 codes used?
17 A. I've seen hundreds of INBIFO tests that
18 they're all coded. And one of the interesting things
19 in Philip Morris documents we're going to look at in a
20 bit, you'll see that the codes are explained what they
21 are. In a lot of the INBIFO tests you don't really
22 know what's being tested. Someone else has the
23 codes. So you know that cigarette MJQ is better than
24 whatever else it was, but you don't really know what
130
1 those things were.
2 Q. I want to direct your attention to this,
3 on this same document on page 5423.
4 A. Can you make that a little bit smaller?
5 MR. TILLERY: Even a little more.
6 A. That's fine.
7 Q. What is this?
8 A. This is a diagram that Dr. Seligman used
9 to explain the way that the smoking and health
10 information, this chemical testing, was going to be
11 handled within Philip Morris.
12 Q. By the way, is this Dr. Seligman's notes?
13 A. Well, as I recall it, these are -- some
14 of it is Dr. Seligman and some of it is Dr. Charles.
15 Some of it is Dr. Carpenter's. If you notice in here,
16 if you go through it, there's some slightly different
17 printing. But, basically the notes that he required
18 for his presentation and that he pulled together for
19 his presentation.
20 Q. All right. Explain this to me. You were
21 there for this presentation?
22 A. Well, I had this discussion -- yes, I was
23 for this particular one also. Had this discussion
24 many times. There's -- if you notice the circle in
131
1 the middle, it says Coordination. And the
2 coordination is Dr. Thomas Osdene. The PM Management
3 is the arrow up on top. And so, the information would
4 flow from coordination to management, that way.
5 And as was explained to me, I was part of
6 that PM Management. So, I have to get my information
7 from coordination. Coordination has a line over at
8 the side that says PME. That's Philip Morris Europe.
9 There's some kinds of research going on there. And if
10 it's smoking and health research, I'm not supposed to
11 communicate with PME. I have to get my information
12 from coordination.
13 Q. Coordination meaning Mr. Osdene?
14 A. Dr. Osdene or one of his designated
15 subordinates, of which there were three. Down in the
16 lower left-hand corner there is an internal. This is
17 stuff we did at Philip Morris. And this is layed out
18 in this document as to what exactly that was. But,
19 basically we did chemistry and in-vitro testing.
20 And the four documents you're going to see
21 later, everybody was allowed at R&D to see them. But,
22 there were tests going on internally that were
23 considered so sensitive that I was only allowed to get
24 that information from Dr. Osdene. For example, if we
132
1 were going to measure the level of change that we made
2 in a cigarette, then that would go over, and I could
3 only get that information back from Dr. Osdene at that
4 time. I couldn't go talk directly.
5 On the lower right-hand side you'll see a
6 line that goes to a box that says R.R., and then that
7 leads to INBIFO. R.R. is Dr. Rylander,
8 R-y-l-a-n-d-e-r, who is a professor at the University
9 of Geneva in Switzerland, and he was the go-between
10 for information between Dr. Osdene and INBIFO;
11 although for sending samples to INBIFO originally, we
12 would send them to Philip Morris Europe, and Philip
13 Morris Europe would send them to INBIFO. And later
14 they set up a box in Cologne, Germany where they would
15 be sent to that box, and somebody would then go to the
16 box and bring to them to INBIFO so the samples weren't
17 sent directly.
18 And information from all of those sources
19 would then flow back to Dr. Osdene. And then at
20 meetings that I would have with Dr. Osdene I could
21 obtain the information about the toxicity of the
22 products.
23 Q. And what would Dr. -- why was Dr. Osdene
24 kept in the center circle?
133
1 A. That was his job. That was his
2 designated job was to be the coordinator. He was the
3 director, I think eventually the title was Biochemical
4 Research and Extramural Studies.
5 Q. Okay. Now let's go to the CKT 014311.
6 Could you describe this document?
7 A. Yes.
8 Q. It's E in your group.
9 A. This is a handwritten note that is an
10 excerpt, something that Dr. Osdene wrote. And I know
11 that because he sent me lots of notes. And the TSO in
12 the lower right-hand section there is very
13 distinctive. And Dr. Osdene, also being of British
14 extraction, had a way of deferring to himself in the
15 third person.
16 So, the first line says: Ship all documents
17 to Cologne by Tom, meaning he would do that. Keep in
18 Cologne. Okay to phone and telex –
8 Q. Is this after 1971?
9 A. Yes.
7 Q. Go ahead, sir.
8 A. I was at point three. It's okay to phone
9 and telex; these would be destroyed. The information
10 would either be called to him directly on the phone,
11 any results, or provided by telex. And then down at
12 the bottom it says Important -- If important letters
13 or documents have to be sent, please send them to
14 home. I will act on them and destroy. And the
15 importance of that was, following that diagram, is
16 that I -- the information that we obtained in order to
17 do our work came through Dr. Osdene, including the
18 kind of work that we're talking about.
19 So, any testing of Marlboro Lights versus
20 Marlboro that would have been done would have been
21 done under this arrangement, and I would have only
22 become aware of it by discussions with Dr. Osdene.
23 Q. Let's go to the very next document, which
24 is F.
137
8 Q. And this is a March 31, 1977 document?
9 A. Yes. And this is a letter written from
10 Dr. Seligman again to Dr. Hauserman, who later would
11 be my boss, replaced Dr. Seligman. And what this does
12 is it sets up the way to send the samples to INBIFO to
13 get the testing done. And the relevance of this is
14 that Helmut Gaisch didn't like being the go-between,
15 and this lays out: We have gone to great pains to
16 eliminate any written contact with INBIFO, and I would
17 like to maintain that structure. And then: I am
18 advising Jerry Osmalov to continue sending samples to
19 Neuchatel for shipment to INBIFO. If this procedure
20 is unacceptable to you, perhaps we should consider a
21 dummy, in quotes, mailing address in Koln, K-o-l-n,
22 which is German for Cologne, for the receipt of
23 samples.
24 And it goes on to say: The written
138
1 analytical data will still have to be routed through
2 FDR if we are to avoid direct contact with INBIFO and
3 Philip Morris USA.
4 Q. Was that the effort to avoid direct
5 contact?
6 A. Yes.
7 Q. Again, who, in 1971 on March 31, were Dr.
8 Max Hauserman and Robert Seligman?
9 A. This is 1977. You said '71.
10 Q. I'm sorry, 1977. Excuse me.
11 A. Dr. Hauserman was the vice president of
12 Research & Development at Philip Morris Europe at
13 Neuchatel and Dr. Seligman was vice president of
14 Research & Development of Philip Morris USA.
15 Q. All right. Let's go to Exhibit G. Can
16 you identify this document?
17 A. Yes. This was a document written by Dr.
18 Dunn to Dr. Seligman concerning the nicotine analog
19 program I discussed a little bit yesterday that we had
20 to find other chemicals besides nicotine that would
21 provide the effect. And Dr. Dunn referred to it as
22 the nicotine receptor program as opposed to the actual
23 making of analog.
15 Q. Explain this document, sir.
16 A. The concern about this program was
17 ongoing for the entire period of time that I was
18 there, the program being the nicotine analog work.
19 And eventually it was terminated in '84. But, at this
20 time Dr. Dunn is defending the program, and he makes
21 some statements which document some of the things that
22 I've noted before. And you could see where it says
23 The first reason it's talking about in the middle of
24 second paragraph.
140
1 Q. Yes. The first reason is the oldest and
2 -- can you read that into the record?
3 A. Yes. The first reason is the oldest and
4 is implicit in the legal strategy employed over the
5 years in defending corporations within the industry
6 from claims of errors and estates of deceased
7 smokers. Quote -- I think there's a quote there -- We
8 within the industry are ignorant of any relationship
9 between smoking and disease, period. Within our
10 laboratories no work is being conducted on biological
11 systems, period. End of quote. That posture has --
12 Q. Moderated.
13 A. Moderated considerably as our attorneys
14 have come to acknowledge that the original carte
15 blanche avoidance of all biological research is not
16 required in order to plead ignorance about any
17 pathological relationship between smoke and smoker.
18 There is an important distinction that has had been
19 made here, which is well to articulate. And he goes
20 on to defend the program for studying nicotine.
21 Q. And the second page of that document.
22 Third paragraph. What does is it say?
23 A. Our attorneys, however, will likely
24 continue to insist upon a clandestine effort in order
141
1 to keep nicotine the drug in low profile.
1 Q. (by Mr. Tillery) Earlier you had
2 described the Ames test, Dr. Farone. Can the Ames
3 test be used for quantitative dose response
4 predictions with respect to cigarette smoke?
5 A. Yes, it can and has been.
6 Q. What do those test results mean?
7 A. They mean that the cigarette smoke has
8 differing levels of mutagenicity.
9 Q. Why did Philip Morris use the Ames test
10 more than all other in-vitro tests?
11 A. It's a relatively inexpensive simple test
12 to run and it's a predictor of skin painting results,
13 which were considered a predictor of carcinogenicity.
14 So, in a way it's a predictor of one level removed of
15 carcinogenicity.
16 Q. Do other industries use the Ames test for
17 product testing?
18 A. Yes, product testing. And it's required
19 actually in some EPA submissions now and FDA
20 submissions, that you actually, if you make a new
21 chemical, for example, the Ames test dose responses
22 are required submission for most chemicals.
23 Q. Did other cigarette companies perform
24 such Ames testing as well?
143
21 Q. Do you know certainly whether -- one way
22 or another whether the other tobacco companies used
23 the Ames test?
24 A. I do.
146
1 Q. And is it recognized testing?
2 A. Yes, it is.
3 Q. And explain that to the Court, please.
4 A. It's been used by the other companies,
5 and actually extensive peer reviewed publications have
6 been made on it, and Philip Morris uses it to this day
7 and has published papers indicating using it as a
8 basis for increased safety of their own products.
9 Q. What did Philip Morris use the test for
10 with respect to their cigarette products?
11 A. Well, recently they've used it for the
12 core product. But, at this time what was being done
13 was studying the difference in diluted cigarettes like
14 Marlboro Light versus cigarettes with lesser or no
15 dilution like Marlboro.
16 Q. And how were they using it for that
17 purpose?
18 A. Well, we'll see that in all these
19 documents.
20 Q. Well, you have a group exhibit.
21 A. Yeah.
22 Q. Can you with reference to those specific
23 documents explain how they used it and the results of
24 those tests.
147
1 A. Certainly. If you look at Exhibit H,
2 which is CKT 046185, and this is a memorandum written
3 by Miss Booker and Mr. Drew to Dr. Pages. They are
4 the chemists who ran the tests in November of 1977.
5 And the cigarettes at issue here, if you look at the
6 one in this little box, you'll see CIG. That is a
7 high porosity paper and filter dilution. And CIF, the
8 first one, is a low porosity paper, no filter
9 dilution, no tipping paper on this set. And if you
10 then go to the next page --
11 MR. TILLERY: That's 46186. Yes, there it
12 is.
13 A. And if you blow up the results at the
14 top, the cigarette that was called CIG which is the
15 one with dilution, has a score of 3720, which is
16 significant compared to the one at the bottom, CIF
17 without the dilution, which is 2912. And the very
18 last page -- the last sentence on this page --
19 paragraph, at the bottom, says: The take-home lesson
20 from this experiment is that dilution of a cigarette
21 appears to increase the activity of the whole smoke
22 condensate, WSC, more dramatically for some cigarettes
23 than for others.
24 But, it fits the pattern we saw with the
148
1 mouse skin painting. And this document is consistent
2 with the correlation that we had talked about
3 previously.
4 Q. Just when you say --
5 THE COURT: Let me see you.
6 (At this time a discussion was held at the
7 bench, after which the following proceedings
8 were had in open court.)
9 Q. Before you move on to the next document,
10 now just so we're clear, you're comparing with those
11 ventilated cigarettes there, what does that tell you?
12 What's the conclusion?
13 A. The conclusion is, as we have seen with
14 mouse skin painting, and it's consistent with these
15 documents, and with, as we'll see, the testing that
16 they've actually done on Marlboro Lights versus
17 Marlboro, that the mutagenic activity as a predictor
18 for the carcinogenic activity for the light cigarette
19 is greater than for the regular.
20 Q. All right. Let's go to your next test
21 then -- or your next document, I'm sorry.
22 A. The next document is an annual report,
23 which I was a recipient while I was there.
24 MR. TILLERY: By the way, before we go any
149
1 further, could you highlight the distribution list.
2 Q. Is W.A. Farone you?
3 A. Yes, that's me. And the other people on
4 here are people that -- whose names we've seen and who
5 I've referenced before. These are the R&D managers
6 and directors who obtained copies of this document.
7 Q. All right. Let's go through this
8 document then, please.
9 A. I think we can just go to the page where
10 -- there should be tables in here that simply point
11 out the construction of the cigarettes. I'll find it
12 in just a second.
13 Q. Would that be CKT 04981?
14 A. That's correct.
15 Q. All right. I'm there now. 004981. If
16 you look at the last two coded cigarettes, the CII and
17 the CIG, the CIG -- the only difference between those
18 two cigarettes is filter dilution. So, CII, and it's
19 been changed when you do CIG simply by filter
20 dilution. And if you now go to page CKT 004985, you
21 can see that there's again a significant difference in
22 the score. The higher the score, the more mutagenic
23 between the CIG and the CII.
24 Q. What's the conclusion from that document?
150
1 A. Same conclusion; that as you increase
2 dilution, you increase the mutagenicity.
3 Q. When you say increasing dilution, and
4 then I don't want to be repetitious, unduly
5 repetitious, but let's make sure we're clear.
6 Dilution or ventilation means what?
7 A. The holes in the filter of the cigarette,
8 the number of holes in the filter of the cigarette.
9 Q. As you increase those, what happens then?
10 A. The amount of mutagenicity per milligram
11 of tar, per milligram of tar, increases. If you were
12 to do it to such a great extent that it's very hard to
13 get any tar, like 99 percent dilution, then you would
14 have an overall reduction per cigarette even though
15 what you got was a little more toxic. But, in
16 cigarettes where the change is very small, as we'll
17 see like between Marlboro Lights and Marlboro
18 Regulars, you get essentially more toxicity from the
19 Marlboro Light than you do from the March Regular.
20 Q. Let's go to the next document then.
21 A. Next document simply makes the same
22 point. If you go to the third paragraph, the first
23 line, Table 6, we just saw, they're just stating what
24 I just said. CIG was significantly more active than
151
1 CIF. This result strengthened our conclusion that
2 filter dilution acts to increase WSC activity.
3 Q. What's WSC?
4 A. Whole smoke condensate.
5 Q. All right. The next document.
6 A. The next document is K. And the middle
7 paragraph on that page, it simply talks about the
8 objective to decrease the biological activity of
9 smoke, that's their objective, by using these in-vitro
10 assays.
11 And then if you go to CKT 046494, the last
12 paragraph, it says: From these studies, filter
13 ventilation appears to be the outstanding cigarette
14 parameter which affects cigarette smoke condensate --
15 it's an acronym, but the same stuff -- Salmonella
16 mutation activity the most. That's what SM stands
17 for.
18 So, and we saw what they're talking about is
19 the difference in levels that that causes. This, by
20 the way, is in '91; and this shows that in the period
21 going from '74 to '91, '77, that the results continue
22 to be the same and the testing continues to be the
23 same.
24 The next one is CKT 046542.
152
1 MR. LOMBARDI: Your Honor, I just make an
2 objection to the narrative form; suggest we proceed --
3 MR. TILLERY: Well, if you want me to resume
4 it, I'm trying to speed it up to get him through the
5 documents.
6 THE COURT: Well, let's speed it up, because
7 I'm going to give this a little greater scrutiny than
8 some of the other stuff -- other testimony, I mean.
9 A. The last paragraph here, it simply makes
10 the same point. This is a 1990's work. Increased
11 ventilation leading to an increased cytotoxicity and
12 irritancy. This is filtration as opposed to
13 dilution. And I think the next one has a summary
14 chart.
21 A. It's Exhibit M. And the page that I want
22 you to look at is CKT 046120.
23 Q. Before you go there, if you wouldn't
24 mind, can we back up to the document you were on.
153
1 A. Sure.
2 Q. The 1994 document, page two, which would
3 be 046543.
4 A. Yes, that's the --
5 Q. The top of that page.
6 A. Yes, the point about ventilation. It
7 adds the point about filtration, and then it talks
8 about increased porosity and ventilation will lower
9 the air flow through the cone and increase the
10 specific mutagenicity. Cytotoxicity will not be
11 changed. In practice several of these and other means
12 will be combined, and the overall biological changes
13 from a medium to a low yield cigarette can hardly be
14 predicted on theoretical grounds, meaning that you
15 have to test it. I was forging ahead to the middle of
16 next one where there's a table.
17 Q. And that's at 04611 --
18 A. 120. No, 113 was correct. This just
19 defines again what assay they're using and points out
20 that it's a widely accepted -- widely used and
21 accepted short-term assay.
22 Q. Explain that, if you wouldn't mind.
23 A. Well, it's widely used throughout not
24 only the cigarette industry, but in other industries.
154
1 And it points out here that a publication in '74 where
2 the smoke condensate was reported being tested by this
3 method, and from that point on the industry sort of
4 adopted the method.
5 Then they talk about the different things.
6 This is a study of different parameters. And if you
7 go to CKT 046120, I think that's the next key point
8 here. This lists the importance of the parameters
9 relative to each other and in terms of the percentage
10 importance of it. And the filler make-up, the blend,
11 is the largest one. That's 43 percent. And then you
12 can see filter efficiency and filter ventilation down
13 at the bottom are 15 and 8 percent respectively. So,
14 these are the major things which influence the
15 mutagenic activity of cigarette smoke.
16 Q. Okay. The next document.
17 A. The next document is a 1994 document,
18 INBIFO document, which talks about four research
19 cigarettes that they are studying. And if you go to
20 CKT 017627, the third paragraph, first sentence. The
21 specific mutagenicity of mainstream smoke condensate
22 of the non-ventilated reference cigarette, gives it a
23 number, was statistically significantly lower than
24 that of the ventilated reference cigarettes in strain
155
1 TA98. In strain TA100 it was only numerically lower.
2 Again, this is consistent with what we have seen in
3 all of the previous information.
4 Q. And if you wouldn't mind, if you would go
5 to 017638 on that same document. Page 13 of that same
6 document, Dr. Farone.
7 MR. TILLERY: And enlarge the first
8 paragraph.
9 A. Yes, the third sentence. This result is
10 in agreement with results from a previous study in
11 which it was shown that decreasing filter ventilation
12 decreases the specific mutagenicity of MSC-I in-vitro
13 study, and they give a number. And I think we'll see
14 more of that in a bit. The next document are simply
15 draft guidelines from sometime after 2001 concerning
16 assays that -- it's called Guidelines for the New
17 Assay Approval Committee.
18 MR. TILLERY: Let's enlarge 045911.
19 Q. Directing your attention to the first
20 paragraph of that.
21 A. Yes. This is a -- they're reviewing all
22 of their methods. And they said that The assay is
23 sensitive for detention of mutagenicity of cigarette
24 smoke condensate, robust, widely used, and accepted.
156
1 It is routinely used at INBIFO for the reproducible
2 discrimination of different cigarette types.
3 Q. What does that tell you?
4 A. It's a good test. Finally, we have some
5 specific test done recently by Philip Morris of
6 Marlboro versus Marlboro Lights.
7 Q. And that would be --
8 A. Plaintiff's Exhibit P is the first one I
9 have.
10 Q. All right.
11 A. First page. And you will note that the
12 Marlboro Lights is the third product, and the scores
13 are given for two different kinds of testing -- ISO
14 conditions, that's the International Standards
15 Organization, and then an accelerated test. And
16 you'll see that the scores for Marlboro Light are
17 higher than for Marlboro.
18 Q. And what test is used? What test is
19 being used here?
20 A. This is, again, the Ames mutagenicity
21 assay.
22 Q. And if you wouldn't mind, I think this is
23 important that you should compare those results.
24 Point out in the record the specific result
157
1 differences.
2 A. Well, for Marlboro we have, for the ISO
3 conditions we have 3485 done on one day and then 3508
4 on the second day. And under the same days for on
5 September 5th for Marlboro Light the 3858 compares to
6 3485. The 4061 compares to the 3508 under those
7 conditions.
8 Q. What is this test telling you?
9 A. It's telling us that the condensate or
10 the smoke from the Marlboro Light is more mutagenic,
11 as we have seen in all of this data, than smoke from
12 Marlboro.
13 Q. If you could go to the page four of that
14 same document.
15 A. Again, under the ISO, International
16 Standards Organization, we have test under -- let's
17 see, the difference between these is the activation
18 difference. This is strain difference. The other one
19 was strain TA98. This is strain TA100. And in strain
20 TA100 the numbers are lower overall, but the trend is
21 the same. The Marlboro, for example, was 1383
22 compared to 1472 for Marlboro Lights on one day, and
23 another day the Marlboro was 1294 and the Marlboro
24 Lights was 1656.
158
1 Q. Okay. The next document you have, sir.
2 A. Well, the next document essentially is
3 graphical descriptions of similar results.
4 Q. These are Philip Morris documents?
5 A. Yes.
6 Q. And what do those graphical descriptions
7 demonstrate?
8 A. The numbers we were just talking about,
9 they demonstrate that the mutagenicity in the Ames
10 test of Marlboro Lights is greater than Marlboro. I
11 think there is one exaggerated condition where they're
12 about equal, and the rest of them are all Marlboro
13 Lights is greater than Marlboro.
14 Q. Does that conclude all of the documents
15 in that group?
16 A. Except for R.
17 MR. TILLERY: Your Honor, at this time point
18 --
19 THE COURT: You've got about five more
20 minutes if you want to -- if you want to stop here,
21 we'll stop here.
22 MR. TILLERY: All right. That would be fine,
23 Judge.
24 THE COURT: Stop here?
159
1 MR. TILLERY: It might be a good breaking
2 point. Yes.
3 THE COURT: Okay. We'll break. Be back at
4 12:30. Give you a little longer for lunch today.
5 (Thus concluding the proceedings had in the
6 a.m. on January 23, 2003.)
Day 2 (Afternoon Session)
1 WHEREUPON:
2 BE IT REMEMBERED AND CERTIFIED, that
3 heretofore, on, to-wit: January 23, 2003, the
4 same being one of the regular judicial days of
5 said Court, the said cause entitled as
6 hereinbefore set forth came on for Non-Jury Trial
7 before the Honorable Nicholas G. Byron, Circuit
8 Judge of the Third Judicial Circuit, Madison
9 County, Illinois, whereupon the following
10 proceedings were had of record:
11 THE COURT: You may proceed.
12 MR. TILLERY: Your Honor, at this time
13 I move the admission of Exhibit 20, group
14 exhibit.
1
7 FURTHER DIRECT EXAMINATION
__________________________
8 By Mr. Tillery
9 MR. TILLERY: (Q) Did Philip Morris
10 ever use the Ames test results to try to
11 establish reduced harm for light cigarettes like
12 Marlboro Lights and Cambridge Lights?
13 A. Never tested those -- well, no, they
14 did not use it to reduce it. The question, yes.
15 Q. Yeah. Has Philip Morris ever utilized
16 the Ames test results to try to demonstrate
17 reduced harm for any other cigarette?
18 A. Yes, they have.
19 Q. And what cigarettes have they tried to
20 use it for for that purpose?
21 A. Case of the accorded cigarette, the
22 nonconventional electrical heated cigarette, one
23 of the primary tests they use in showing the
24 reduced or potential for reduced risk was the
9
1 Ames test.
2 Q. At this time I would -- would like to
3 show three clips of witnesses in this case who
4 are three scientists that have been deposed in
5 this litigation of Defendants, and I would like
6 to show those of Dr. Burnley, Solana and Whidby.
13
1 You may proceed.
2 MR. TILLERY: Yes.
3 The video clip from Solana was on June
4 18th, 2002, and that's on pages 18 and 19, and
5 the video clip from the Whidby deposition of May
6 21, 2002, is on page 57. You can show those
7 clips now, please.
8 (Whereupon, video
9 clips were presented
10 on screen for the
11 Court.)
12 -- -- --
13 Clip -- "well, the biological testing is
14 something used to determine the suitability of a
15 product change. Certainly I don't want to do
16 anything that will make a product more hazardous
17 -- more hazardous or more risky or increase the
18 likelihood that people would use the product
19 would get sick".
20 "All other things being equal or
21 mutagenicity is worse rather than better, is that
22 right?" "It may be, yes. I'll give you your
23 point".
24 "Our evaluation process is to look at
14
1 changes that are proposed to products so that any
2 modifications we're considering making, you know,
3 as I said, either at a minimum do not increase
4 the overall smoke chemistry or biological
5 activity or we're intending to reduce the risk of
6 smoking that they do achieve that".
7 "In pursuing reduced risk of smoking, one
8 clear tool is in addition to pursuing change in
9 the smoke so that it has less biological
10 activity."
11 "In some cases that I was involved in we
12 found the biological activity was increased, and
13 therefore we did not implement those -- those
14 changes. But if there was a biological activity
15 piece of it that was bad news you might not go
16 forward with it. We wouldn't go forward".
17 (End of video being
18 played.)
19 -- -- --
20 MR. TILLERY: I want to ask you some
21 questions about that.
22 THE COURT: Let me clarify this part of
23 the procedure. You -- you're going to ask the
24 witness some questions relating these --
15
1 MR. TILLERY: Yes.
2 THE COURT: -- submissions?
3 All right, then what counsel -- defense
4 counsel could do is if he wants to cross-examine
5 and he thinks it's necessary to supplement this,
6 then you may examine him in your cross-examine --
7 when you cross-examine.
8 MR. LOMBARDI: Thank you.
9 THE COURT: You may submit your
10 submissions in your cross-examination.
11 MR. LOMBARDI: And I understand your
12 ruling, Your Honor, but just -- just to note it
13 we didn't even get the questions in those clips.
14 THE COURT: Under these circumstances,
15 I'm not sure it's necessary.
16 You may proceed.
17 MR. TILLERY: (Q) You know some of
18 these people?
19 A. Yes, I do.
20 Q. Did you work with any of them?
21 A. Jerry Whidby, yes. (s.i.c.)
22 Q. What was his job when you were there?
23 A. The time I was there he was a manager
24 of division called Biomaterial Science studying
16
1 tobacco, processing technology and reported to
2 me.
3 Q. The reference to biological activity,
4 isn't that a term that was used at Philip Morris?
5 A. Yes.
6 Q. What did that reference?
7 A. Referenced the summation of testing,
8 whatever testing would happen to have so it could
9 relate to skin mouse skin painting or it could
10 relate to Ames testing. Philip Morris in R.D. in
11 Richmond the most frequent use was to refer to
12 the Ames testing result.
13 Q. As a biological activity?
14 A. Yes, a biological activity.
15 Q. Do you -- did Philip Morris ever use
16 the results of the biological tests or Ames
17 testing to improve Marlboro Lights or Cambridge
18 Lights to make them safer?
19 A. Relative to the regulars you mean?
20 Q. Yes.
21 A. Not relative to the regulars.
22 Q. Did Philip Morris ever do anything
23 about their light products including Marlboro
24 Lights or Cambridge Lights or vent -- including
17
1 ventilation generally as a design parameter in
2 response to Ames biological testing?
3 A. I'm not sure of the question. I think
4 I would like to make sure we understand it's
5 relating only to these two products the Marlboro
6 Lights versus the Marlboro and --
7 Q. Cambridge?
8 A. -- Cambridge versus that because if you
9 look at all the products then changes have been
10 made which decrease biological activity, but with
11 respect to those two products, no.
12 Q. I want to ask you a hypothetical
13 question.
14 Assume that the Ames test gives only a yes
15 or no result?
16 A. Okay.
17 Q. Assume "yes" means that the tested
18 material is mutagenic and thus possibly
19 carcinogenic and "no" means it is not mutagenic
20 for cigarette smoke and would then be potentially
21 a much safer cigarette. Okay?
22 A. Okay.
23 Q. Are you aware of any data anywhere at
24 any time since 1971 that shows that a Marlboro
18
1 Light or a cigarette of similar construction
2 shows a "no" in this test while a regular shows a
3 "yes"?
4 A. I am not.
5 Q. And under the same yes no criterion,
6 would Marlboro Lights thus be any safer or
7 lighter in toxicity than a regular?
8 A. They would not.
9 Q. Did Philip Morris to your knowledge
10 ever publicly disclose the results of any of this
11 biological testing?
12 A. Well, they have recently, but not early
13 on. I mean there are publications now.
14 MR. LOMBARDI: Your Honor, I object
15 again on pre-emption grounds the implication that
16 somehow Philip Morris should have disclosed this
17 information at any earlier time. It's not
18 relevant to this lawsuit. That is pre-empted.
19 THE COURT: Overruled.
20 MR. TILLERY: (Q) I want to ask you
21 some questions about Cambridge cigarettes.
22 When did the Cambridge cigarette first -- strike
23 that.
24 When was the Cambridge cigarette first
19
1 manufactured and sold in this country?
2 A. 1980.
3 Q. And could you describe for the Judge
4 the first Cambridge cigarettes?
5 A. Well, they were developed under a
6 project known as the Trinity Project, the idea
7 being that there were three cigarettes. One of
8 the three was intended to be the lowest cigarette
9 in tar and nicotine of any product on the market,
10 and at that time there were on the market two
11 competing products, Carlton and Now, that were
12 well. And so one of them was intended to be
13 lower than those -- than that cigarettes were
14 being sold. The other two were slightly higher
15 in tar and nicotine.
16 If I remember the numbers, the lowest one
17 was supposed to be as close to zero point zero
18 zero as we could get it, and the other ones were
19 around one to two milligrams of tar, a tenth to
20 two-tenths of nicotine, and then three to four
21 milligrams of tar, point three point four
22 milligrams of nicotine approximately. Don't
23 remember exactly without looking it up for the
24 third one. So there was a box product and then
20
1 there were two soft pack products.
2 Q. Did -- did you create a data set as a
3 graph exhibit for us here?
4 A. Yes, I did.
5 Q. All right. I don't know if you have
6 that on the system.
7 I'll show you what we will call 21, Exhibit
8 21.
9 I have a smaller version of this that we'll
10 submit, Your Honor.
11 Tell me if you would --
12 MR. LOMBARDI: Your Honor, --
13 THE COURT: Show it to counsel first.
14 MR. LOMBARDI: -- I have never seen it.
15 THE COURT: Show it to counsel, please.
16 MR. TILLERY: (Q) Can you identify
17 what 21 is?
18 A. Yes, this is a chart which shows the
19 FTC tar deliveries of the various Cambridge let's
20 call them packings, Cambridge products, over a
21 period of time from approximately 1981 to 1998.
22 Q. Let's start over. I had this blowup
23 made. Be a shame for me not to use it.
24 So what -- start over here on the -- in the
21
1 left column.
2 Could you describe what's -- what's shown
3 there?
4 A. Yes. Now, some of these numbers come
5 from the Federal Trade Commission reports, and
6 some years the Federal Trade Commission didn't
7 publish the reports. So I used the numbers that
8 were listed in the Philip Morris Cigarette
9 Information Reports of the type that would be
10 submitted to the Federal Trade Commission.
11 And I also want to point out the numbers at
12 the bottom with quotes there was a period of time
13 because of the tremendous number of brands as I
14 understand it from, that the Federal Trade
15 Commission got behind in publishing. So you're
16 going to see three at the lower left-hand corner
17 that are '99. That's when the report came out,
18 but they reference the products for '96, '97 and
19 '98.
20 So what I have attempted to do here is to
21 categorize the tar delivery of the Cambridge
22 products over the years. And this product that I
23 told you was the lowest tar product 0.0 on that
24 scale that's a Box 85 millimeter product from
22
1 approximately 1981, was introduced in 198O.
2 These numbers tend to be maybe a year behind by
3 the time the number gets taken and put in.
4 0.0 as you can see that was advertised as
5 being the lowest. And then the next one I talked
6 about varies goes up from 0.0 to 2.2 in November
7 of 1985. And then there's a Regular 100 product
8 which is 2.9 going up to 6.0 in 1985, and then
9 this drops back down to 4.8 in 1988.
10 Q. All right. So now again let's talk
11 about it.
12 In 1994, this is the King Lowest and this
13 is an FTC tar number?
14 A. No. Yes, those were introduced into
15 the market April of '92 is the first number I
16 have. Two more products a King Lowest and 100
17 Lowest. And then the next column Ultra Lights
18 that approximately 1990 is the first number I
19 have there.
20 Q. And now again, just so we're clear, 19
21 -- is that corresponding with the number?
22 A. Yes.
23 Q. All right. Okay.
24 A. It's in the range of five, four to six
23
1 in that range that's called an Ultra Lights 100.
2 Q. All right.
3 A. And the next column are two Cambridge
4 Lights products. The Lights 100 and the Lights
5 King that ran in tar from as you can see 10 and
6 to 12 in that range, and then on the far right
7 column we have one that is called a Full Flavor
8 King starting about 1998 -- 1988, and that's in
9 the range of about 15 to 17 milligrams depending
10 on the year.
11 Q. All right. So just so we're clear and
12 the -- the Exhibit Number 21 sets this out, as
13 you -- in the 1986 range when the lights came
14 out, they were at 11.3 milligrams?
15 A. In the range of 11 to 12, yes.
16 Q. All right.
17 A. And there was a Regular at that point
18 that was 4.9.
19 Q. Simultaneously there was a Light that
20 was demonstrating 11. -- 11 to 12 and a Regular
21 on the market at the same time that was 4.9?
22 A. According to the records, yes. In the
23 1988 4.8 and then we have the other numbers. And
24 the Regular 100 was taken off the market, and
24
1 then a product of similar delivery range called
2 Ultra Lights was introduced in the market after
3 about a year spacing in between.
4 Q. Okay. Let's make sure we're clear on
5 that. This was the -- this was the Regular 100
6 that was taken off what, in about '8 --?
7 A. Looks like about '88.
8 Q. '88. And another one delivering
9 virtually identical FTC numbers was remarketed as
10 an Ultra Light?
11 A. That's correct.
12 Q. Did you have any familiarity with this
13 project?
14 A. The original project. I was there when
15 the initial project was -- was underway and when
16 the -- the product was launched.
17 Q. And did you ever have any involvement
18 or discussion about this particular project in
19 terms of where it was going, long-range planning?
20 A. Yes. On the -- first of all, some of
21 the technology that we developed was used to make
22 this product because this is a very highly
23 diluted product, and this is one of the products
24 that it's very very difficult no matter what you
25
1 do short of taking off the filter to extract the
2 significantly large amount of tar and nicotine
3 from the product. And it was considered sort of
4 a breakthrough to be able to make the product to
5 make that many holes and to achieve the kind of
6 dilution that we achieved with that 0.0 product.
7 Q. Was it successful at 0.0?
8 A. No, it was not. It was my
9 understanding it was taken off the market.
10 Q. Would that give a smoker the ability to
11 extract the needed dose of nicotine to sustain
12 addiction?
13 MR. HEPLER: Objection.
14 MR. WAGNER: Objection, just to the
15 concept, you know, all smokers and any smokers
16 there's no foundation. He's not done any tests
17 of any smokers and any study of any smokers or
18 any study or testing of the class members to be
19 talking about this. So it's same foundation
20 objection that we have been making.
21 THE COURT: In the context of his
22 employment, overruled.
23 MR. TILLERY: You can answer.
24 A. No, you could not get the -- you could
26
1 not extract required amount of nicotine from.
2 Q. Well, were you familiar with a plan?
3 Was there a plan with respect to this cigarette?
4 A. Yes.
5 Q. Were you familiar with that plan?
6 A. I was there when it was discussed, yes.
7 Q. And what was the long-range plan for
8 this cigarette?
9 A. The long-range plan was to introduce
10 the product as a low tar product and then
11 eventually to increase the tar of the product.
12 Q. And why would that be the case?
13 A. Well, it was anticipated that the
14 product would not sell very well at that low tar
15 and eventually one would increase the tar and
16 having sold it as low tar product people would
17 remember that as being a low tar product.
18 Q. And buy it when it reached a point of
19 nicotine in it that would sustain the habit of
20 addiction?
21 MR. LOMBARDI: Objection, calls for
22 speculation.
23 MR. TILLERY: Well, here. If there's a
24 question about --
27
1 THE COURT: I'll sustain your objection
2 as to the remarks made by counsel. If you want
3 to ask a question, go ahead.
4 MR. TILLERY: (Q) Did you -- did you
5 have personal knowledge of these conversations
6 and discussions?
7 A. Yes, I had personal knowledge and the
8 numbers that you see here reflect what was
9 actually done which was discussed in 1979 before
10 the project was even instituted.
11 If you notice, if you want to put that back
12 up there again, even in the low ones in the early
13 years there's an increase going from 0.7, 0.8,
14 1.0, 1.2 gradual increase in that Regular 85.
15 Similarly, the Regular 100s start -- starts
16 off at 2.9 and increases up to the range of about
17 5. And that's -- that's the plan that was
18 discussed in 1979 that I heard being discussed
19 because I was present at the meeting, and the
20 results that were discussed are shown on the
21 chart.
22 Q. While you were at Philip Morris, were
23 you involved in any research regarding the
24 removal of N-nitrosamines from light cigarettes
28
1 including Marlboro Lights?
2 A. Well, we were involved in general
3 removal of nitrosamines from any cigarette.
4 Q. That's what I mean, including Marlboro
5 Light?
6 A. Yes.
7 Q. Did Philip Morris have the capability
8 of manufacturing their cigarettes including
9 Marlboro Lights and Cambridge Lights in a way
10 that would enhance their safety without unduly
11 compromising their utility?
12 MR. LOMBARDI: Your Honor, this is the
13 same objection -- well, object to the form and
14 it's leading, but I also object to the testimony
15 because it's calling for testimony about what
16 might have been a safer cigarette, things that
17 could have been done to make the cigarette safer.
18 And we have made that objection before, and I'm
19 repeating it now.
20 THE COURT: Overruled, on both points.
21 A. Technology was developed which if
22 implemented in Marlboro Lights would have
23 resulted in reductions in many of the
24 constituents, toxic constituents in the tar.
29
1 Q. Was it employed in Marlboro Lights?
2 A. No.
3 Q. Was it employed in Cambridge Lights?
4 A. No. Well, Cambridge Lights that we're
5 talking about here from 1986 on.
6 Q. Okay. Do you have personal knowledge
7 as to whether Philip Morris scientists have
8 publicly stated that smokers of light cigarettes
9 including Marlboro Lights are exposed to only
10 quote "small amounts of toxic materials" end
11 quote?
12 A. Philip Morris scientists I don't --
13 Q. About -- how about Philip Morris
14 officials or spokesmen?
15 A. I heard that statement made, but I
16 don't recall exactly who made that statement.
17 Q. All right.
18 MR. LOMBARDI: Your Honor, I don't know
19 what that was being read from. I don't know what
20 he was reading from. I guess it's hearsay.
21 THE COURT: I'm not sure it makes any
22 difference.
23 Are you objecting?
24 MR. LOMBARDI: I'm objecting.
30
1 THE COURT: I'll sustain the objection.
2 MR. TILLERY: (Q) Did Philip Morris
3 use the best technology available to design
4 Marlboro Lights and Cambridge Lights to deliver
5 lower tar?
6 A. No.
7 Q. Did Philip Morris use the best
8 scientific methods available to prevent
9 compensation in Marlboro Lights and Cambridge
10 Lights?
11 A. No.
12 Q. Did they use the best scientific
13 methods available to limit the puff size of a
14 smoker in Marlboro Lights and Cambridge Lights?
15 A. No, they did not.
16 Q. To your knowledge has Philip Morris at
17 any time ever informed consumers of the results
18 of the biological assays which indicate increased
19 mutagenicity for Marlboro Lights?
20 MR. LOMBARDI: Objection, Your Honor.
21 Again that goes to the objection we have made
22 before pre-emption in terms of what we should
23 have warned consumers about, what we should have
24 said to consumers.
31
1 THE COURT: Overruled.
2 A. Not to my knowledge.
3 MR. TILLERY: (Q) Do you have an
4 opinion to a reasonable degree of certainty
5 within your field of expertise, as to whether or
6 not Marlboro Light cigarettes and Cambridge Light
7 cigarettes are more dangerous than their regular
8 counterparts?
9 A. I do.
10 Q. What's your opinion?
11 A. I believe they are.
12 Q. And what's that based on?
13 A. It's based on much of the information
14 we have talked about today that they at least by
15 the standards used to determine risk -- relative
16 risk they appear to present an increased relative
17 risk in direct contradiction to the methodologies
18 we talked about.
19 MR. WAGNER: Your Honor, I just want to
20 make sure with respect to the last two statements
21 that our objection is on the -- the record not
22 only about the scientific safer cigarettes but
23 also remember Plaintiffs began their case by --
24 THE COURT: Your objection is noted.
32
1 MR. WAGNER: -- by disclaiming all
2 personal injury.
3 MR. TILLERY: (Q) Do you have an
4 opinion to a reasonable degree of certainty as to
5 whether or not Marlboro Lights and Cambridge
6 Light cigarettes are a more harmful product than
7 their regular counterpart?
8 A. I do.
9 Q. And what's your opinion?
10 A. I believe they are. I conclude that
11 they are.
12 Q. When did you --
13 MR. LOMBARDI: I'm sorry. Just for the
14 record, Your Honor, same objection to the last
15 couple of questions.
16 THE COURT: Overruled.
17 MR. TILLERY: (Q) When did you leave
18 Philip Morris?
19 A. Officially September of 1984,
20 unofficially July of 1984.
21 Q. And in the period of time throughout
22 the '80s after you left, did you become involved
23 in any litigation, lawsuits of any kind,
24 tobacco-related lawsuits?
33
1 A. No.
2 Q. At that time?
3 A. Did not.
4 Q. When was the first time that you were
5 asked to become involved in any tobacco-related
6 lawsuit or tobacco-related matter, let's say
7 that?
8 A. It wasn't lawsuit. I was approached by
9 Food and Drug Administration in December of 1993
10 to assist them with understanding tobacco
11 technology.
12 Q. And what was that all about?
13 A. It was about an investigation they were
14 making with intent to regulate the industry, and
15 they needed to have someone who could explain to
16 them how cigarettes were made and how they
17 functioned and things of that sort. And I
18 volunteered to do that.
19 Q. In the ten -- in that ten year period
20 after you left, were you under any kind of
21 restriction not to become involved in any way?
22 A. No.
23 Q. And after that period of time, did you
24 become involved in -- were you asked to become
34
1 involved in litigation?
2 A. Well, in 1996 there was a change when
3 FDA actually promulgated a rule. I was asked to
4 write a paper for them, which I did. And then I
5 was sought by the State's Attorney Generals to be
6 a witness in their behalf, and at the time there
7 was also a criminal investigation going on. So I
8 was subpoenaed for that. So at that point I
9 became involved as they say "like it or not".
10 Q. Okay. After that period of time, have
11 you become -- have you been asked to become
12 involved in other cases?
13 A. Yes. The opinions that I rendered to
14 the Food, Drug Administration were of interest to
15 other people particularly plaintiffs in certain
16 cases, and so I have been asked to represent
17 plaintiffs in many cases such as this.
18 Q. When you -- how did you -- what
19 circumstances did you leave Philip Morris?
20 A. Well, I was terminated for
21 irreconcilable differences with the company. It
22 did not relate to my performance, and there was a
23 disagreement. There was a settlement made
24 between myself and Philip Morris which I was
35
1 pleased with; they were pleased with.
2 Q. Was that resolved in 199 -- 1984?
3 A. It was resolved in 1984.
4 Q. Now, have you been asked by the Center
5 for Disease Control to review information
6 regarding cigarette additives?
7 A. Yes, I have presented some information
8 to them. I have provided answers to questions
9 they have asked me.
10 Q. And --
11 MR. LOMBARDI: Your Honor, I didn't
12 hear the end of the question regarding cigarette
13 what?
14 MR. TILLERY: Additives.
15 (Q) And have you been asked to lecture
16 regarding tobacco-related issues?
17 A. I have.
18 Q. And could you tell us about that?
19 A. Well, I've been asked by various
20 health-related conferences to provide information
21 on cigarette design, particularly with regard to
22 toxicity, chemicals, also have been requested to
23 be and am currently a member of the scientific
24 advisory board of one of the eight centers for
36
1 excellence called Tobacco Technology Research Use
2 Centers.
3 The one that I'm involved with is in the
4 University of California Irvine where their focus
5 is on adolescent smoking, but I've also been
6 involved in Harm Reduction Program at the
7 University of Michigan.
8 Q. I have a copy of your resume.
9 Obviously, I -- I understand, Your Honor, resume
10 in and of itself is -- is pure and simple
11 hearsay, but I wanted to at least show it to him
12 so that he could go through and explain to us
13 finally the publications, the type that he's been
14 through if I might hand it to him.
15 THE COURT: Go ahead.
16 MR. TILLERY: (Q) Could you describe
17 over the course of your career, the type of
18 scientific investigation you have become involved
19 in?
20 A. Well, the early part of my career had
21 to do with polynucleic aromatic hydrocarbon. The
22 very first publication which are typical of the
23 chemical compounds we talked about in smoke, and
24 then there's a series that have to do with
37
1 measuring these aerosols using light scattering,
2 other methods, some of which I carried to Philip
3 Morris and used there.
4 And then there's a section on when I worked
5 at Lever Brothers on enzymes, performance of
6 detergents, and finally there's a series of many
7 patents covering many different fields from
8 electronics to the ones that I have discussed
9 that are making the chemicals that we make and
10 inject into the ground, and most recently some of
11 these papers that I have been asked to produce
12 for dealing with harm reduction.
13 MR. TILLERY: Dr. Farone, thank you
14 very much.
15 No further questions, Your Honor.
16 THE COURT: You may cross-examine the
17 witness.
18 CROSS EXAMINATION
_________________
19 By Mr. Lombardi
20 MR. LOMBARDI: (Q) Good afternoon, Dr.
21 Farone.
22 A. Mr. Lombardi.
23 Q. We have met before, haven't we?
24 A. Sometimes off the record even.
38
1 Q. Okay. Dr. Farone, you worked for
2 Philip Morris from 1976 to 1984, is that right?
3 A. That's right.
4 Q. A period of eight years, is that right?
5 A. That's right.
6 Q. And you started working with the FDA
7 and then for plaintiffs' attorneys in 1996 or so,
8 is that right?
9 A. No. The FDA was for the two years
10 before that.
11 Q. 1994?
12 A. '94 to '96.
13 Q. Okay. So you have been working with
14 the FDA or other groups which are involved in
15 litigation against the tobacco company from '94
16 to the present, is that right?
17 A. Well, there was no -- was there
18 litigation in the FDA thing? I really don't
19 think so. That was a regulatory matter for us
20 providing --
21 Q. Regulatory matters or litigation
22 involving tobacco industry from 1994 to the
23 present, is that right?
24 A. That's correct, yes.
39
1 Q. Approximately nine years, is that
2 right, Dr. Farone?
3 A. Eight or nine years.
4 Q. You have now spent more time testifying
5 against the tobacco companies and working for
6 regulatory agencies concerning the tobacco
7 companies than you actually did at the tobacco
8 company, is that right?
9 A. About equal.
10 Q. It's about eight years when you were at
11 the tobacco company, is that right?
12 A. That's true, but the difference was
13 there I worked a hundred percent of my time and
14 now it's like, you know, ten or fifteen percent,
15 but the time is right.
16 Q. Okay, fair enough. Fair enough.
17 And in the time away -- let's -- when you
18 were being examined over the last couple days,
19 did you -- did you keep track, did you keep count
20 of how many of the documents you talked about you
21 were actually copied on?
22 A. No, I didn't.
23 Q. Do you know?
24 A. Do I know the documents?
40
1 Q. Do you know how many?
2 A. No, I don't.
3 Q. Do you have an estimate?
4 A. No, I didn't pay attention.
5 Q. Did you know if you're copied on any of
6 them?
7 A. Oh, yes.
8 Q. You're copied on one of the
9 mutagenicity documents, is that right?
10 A. That is correct.
11 Q. Okay. Do you know how many of the
12 documents that you talked about occurred before
13 the time you got to Philip Morris, when I say
14 occurred I should say written before the time you
15 got to Philip Morris?
16 A. Well, yes, because I don't know exactly
17 -- I didn't keep count but considerable number
18 were.
19 Q. Okay. Were most of them from before
20 the time you came to Philip Morris?
21 A. I didn't keep track.
22 Q. Okay. How about after you left Philip
23 Morris, how many of the documents that you
24 testified about were written after you left
41
1 Philip Morris?
2 A. Quite a few.
3 Q. Okay. Was it -- was the combination --
4 well did you talk about more of the documents
5 from before the time you get to Philip Morris
6 than you talked about documents that were written
7 during your time at Philip Morris?
8 A. Well, chronologically I can't say I
9 paid much attention to that, but I would estimate
10 thinking about it now that there were probably
11 more before more after, but I think there was
12 quite a few. I really can't -- maybe a third
13 slightly less after, more before, but there was a
14 lot of documents that I was involved in from the
15 period of 1974 -- 1976 to '84 that were described
16 in this testimony.
17 Q. Okay. And you have said that what you
18 did was you -- you read a huge number of
19 documents from before the time you got to Philip
20 Morris when you got there, is that right?
21 A. I spent the whole first year trying to
22 learn as much as I could about everything that
23 had gone before.
24 Q. Okay, and you started off when you came
42
1 to Philip Morris in 1976 I think was your title
2 Research Scientist or something along those
3 lines?
4 A. No, Associate Principal Scientist.
5 Q. Okay. And that was the year you
6 described as it was really a year before you got
7 into your main work at Philip Morris, is that
8 correct?
9 A. Sort of. I mean the idea was that I
10 brought some skills to Philip Morris, and I was
11 supposed to figure out how those skills could be
12 applied.
13 For example, before I came, before I became
14 director Philip Morris did not have a
15 biotechnology program in tobacco and that was an
16 expertise I brought in, and so I set up and
17 developed the biochemical research division of
18 which Jerry Whidby eventually became the manager.
19 Q. Okay, and you were hired initially by
20 Philip Morris for the purpose of working on
21 making a safer cigarette, is that right?
22 A. That was one of the two reasons, yes.
23 Q. Okay, and the other reason had to do
24 with looking for merger candidates, is that
43
1 right, or acquisition candidates?
2 A. That's correct.
3 Q. But your main -- your main purpose when
4 you were hired was to work on the development of
5 a safer cigarette, is that right?
6 A. Not quite, Mr. Lombardi. The main
7 purpose I thought when I was hired was the first
8 one it turned out over the course of my
9 employment that approximately eighty percent of
10 my time was spent on the safer cigarette.
11 Q. Okay, fair enough.
12 And after your year that you just described
13 to us, you took a position as -- or you assumed a
14 position as a director, one of the directors that
15 Philip Morris research and development area, is
16 that right?
17 A. That's correct.
18 Q. And you were specifically the Director
19 of Applied Research, is that right?
20 A. That's correct.
21 Q. And you held that position through the
22 time you left, is that right?
23 A. That's correct.
24 Q. Okay. And when you were a Director of
44
1 Applied Research, there were -- what were there,
2 four other directors at the company at that time?
3 A. Well, --
4 Q. In that area?
5 A. No, when I started there were only
6 three others, four total. And when I ended there
7 were five total so we increased by one during the
8 period.
9 Q. And these were all directors in areas
10 related to research, is that right?
11 A. That is correct.
12 Q. And there was a -- there was a director
13 of research? Wasn't that one of the titles?
14 A. Well, only in the very first little
15 bit. Then the title changed to Biochemical
16 Research and Extramural Activities.
17 Q. There's a Director of Process
18 Development?
19 A. That's correct.
20 Q. Director of Product Development?
21 A. That's correct.
22 Q. Director of Administrative Services?
23 A. Correct.
24 Q. Okay. And in your position as Director
45
1 of Applied Research, you reported to the Director
2 of R and D, is that right?
3 A. No.
4 Q. Who did you report to?
5 A. The vice president.
6 Q. I'm sorry, got it wrong.
7 Directors were your level, but the next
8 level up was the vice president of R and D, is
9 that right?
10 A. That is correct.
11 Q. And the vice president of R and D had
12 basic responsibilities despite the fact called
13 vice president for all R and D at the company, is
14 that right?
15 A. Well, he had responsibility for the
16 tobacco R and D and PMUSA.
17 Q. Which is the company you worked for,
18 correct?
19 A. Well, that's not right. The check came
20 from New York for PM, Inc., but for the purposes
21 of R and D, the R and D division was PMUSA.
22 Q. Now, when you started your position I
23 think you said you had something like forty to
24 fifty people reporting to you?
46
1 A. Yes, about right.
2 Q. Okay. And what you were doing and what
3 those forty to fifty people were doing when you
4 started was working on ways, finding ways to
5 reduce the risk of smoking, is that right?
6 A. That's correct.
7 Q. Okay. And over the course of time,
8 the people that reported to you the number of
9 people that reported to you expanded, is that
10 right?
11 A. It did.
12 Q. Okay, and by the time you left was it
13 about two hundred people that reported to you?
14 A. I don't have the exact number, but
15 something like that because there was a major
16 change in half year before where it grew very
17 large. But I don't know the exact number. I
18 estimate it somewhere between two hundred and two
19 fifty.
20 Q. Okay. And the people in that
21 department were working on developing safer
22 cigarettes or reducing the risk of cigarettes, is
23 that right?
24 A. About eighty percent of the effort.
47
1 Q. Okay. And eighty percent of your
2 effort over that time was devoted to reducing the
3 risk of smoking?
4 A. That's correct.
5 Q. And you thought that was a worthwhile
6 goal, is that right?
7 A. That is correct.
8 Q. Providing a less harmful cigarette was
9 one of your main missions at Philip Morris?
10 A. It was.
11 Q. And there were people in other
12 directors not just in your director who were
13 working on the same thing, is that right?
14 A. That is correct.
15 Q. And when you left Philip Morris in
16 1984, the entire research and development
17 department had also grown over the time that you
18 were there, is that right, not just your
19 director?
20 A. It did.
21 Q. Okay, and it was what, about six
22 hundred people by the time you left?
23 A. That's my estimate, yes.
24 Q. And all of those people were being paid
48
1 by Philip Morris to work on research that would
2 provide the technology to work on to reduce the
3 risk of smoking, is that right, all the people in
4 your director?
5 A. I think we estimated the number related
6 to the safety issue. People working on things
7 like manufacturing, reduction cost, and things
8 like that. But eighty percent of the efforts as
9 I recall it from the budget programs was
10 dedicated toward the lower tar and reduced risk.
11 Q. You're proud of the work you did when
12 you were at Philip Morris, is that right?
13 A. That is correct.
14 Q. And you're proud of the work that the
15 scientists that worked for you did while you were
16 at Philip Morris, is that right?
17 A. That is correct.
18 Q. You believed that the work that you
19 were doing was in the best interest of Philip
20 Morris' customers, is that right?
21 A. Harm reduction, yes, I believe that.
22 Q. And you believed that the work you were
23 doing was serving the interest in the medical and
24 scientific communities, is that right?
49
1 A. That is correct.
2 Q. And at the time that you left the
3 company in July of '84, the company was still
4 working to reduce the risk of smoking, is that
5 right?
6 A. That's correct. Seeing one of the
7 products that came out with lowest tar the
8 Cambridge was one of the things that came out of
9 the program that we were involved in.
10 Q. And you believed that Philip Morris was
11 genuinely interested in accomplishing the goal of
12 developing a safer cigarette or safer cigarettes
13 I should say?
14 A. In July of 1984, that's correct.
15 Q. Okay. And you believed in July of 1984
16 that the company was working on technology that
17 ultimately would result in safer cigarette
18 technology, is that right?
19 A. I still believe it could result in
20 safer cigarette technology.
21 Q. You did not leave Philip Morris, Dr.
22 Farone, -- you didn't leave Philip Morris because
23 you were unhappy with your position there, is
24 that correct?
50
1 A. That is correct.
2 Q. Okay. You left because you were
3 fired, is that right?
4 A. Well, it's debatable, but, yes, you can
5 say fired. I don't mind that terminology,
6 irreconcilable difference with the company.
7 Q. You didn't leave the company because
8 you were so unhappy with what the company was
9 doing that you couldn't stand to be there
10 anymore, is that right?
11 A. Well, the circumstances were such that
12 I don't know that I would have stayed much
13 longer, but your characterization is probably
14 correct. I wasn't at that particular time in the
15 belief that Philip Morris would continue to
16 market the products exactly the same. I thought
17 they would continue to decrease tar and continue
18 to have harm reduction.
19 Q. Decreasing tar was a good thing, is
20 that right?
21 A. As long as you keep on doing it.
22 Q. As long as you keep on?
23 A. Keep on doing it. I don't see any
24 significance tar reduction since 1980 in as
51
1 marketed products. I mean, yes, the overall
2 concept is good, but, you know, everything we
3 have seen you have to reduce it substantially.
4 You have to keep on reducing it.
5 Q. Okay. But you were happy with the fact
6 that Philip Morris was reducing tar levels and
7 making genuine effort to reduce tar levels at the
8 time that you were at the company, is that right?
9 A. That is true.
10 Q. And what happened in 1984 was you got
11 fired for insubordination, is that right?
12 A. It's not right.
13 Q. Well, let's go through this.
14 1983 you were the Director of Applied
15 Research, weren't you, Dr. Farone?
16 A. Yes. I think you're missing something.
17 May I add something?
18 Q. Why don't I just ask you questions, and
19 we'll go from there, Dr. Farone.
20 A. Okay.
21 Q. 1983 you were the Director of Applied
22 Research, is that right?
23 A. That is correct.
24 Q. And in 1983 your boss was Dr. Max,
52
1 I'll say Hausermann. You have said Hausermann
2 and Hausermann today.
3 Which one do you prefer?
4 A. Depends on what he prefers. Hausermann
5 is fine. He was Swiss, you know, Swiss national,
6 spoke French, German, and English. Depending he
7 didn't care how you pronounced the name.
8 Q. How are we going to say it?
9 A. Hausermann.
10 Q. 1983 Dr. Hausermann was your boss, is
11 that right?
12 A. That is correct.
13 Q. And Dr. Hausermann took you aside and
14 he said that he was going to promote you; you
15 were going to be promoted when he left, is that
16 right?
17 A. Not quite. Doctor -- Mr. McDowell told
18 Dr. Hausermann to make that announcement.
19 Q. Okay, but Dr. Hausermann was the one
20 that told you, is that right?
21 A. That is correct.
22 Q. And Dr. Hausermann told you that you
23 were now going to become the Director of R and D
24 at some point down the road, is that right?
53
1 A. The Vice President of R and D.
2 Q. I keep getting it wrong. Thank you for
3 the correction.
4 The Vice President of R and D when Mr.
5 Hausermann, Dr. Hausermann, went back to Europe,
6 is that right?
7 A. That's correct.
8 Q. That was going to be six months or so?
9 A. That's what I was told.
10 Q. Okay, and you were excited about that
11 promotion, weren't you?
12 A. Was an opportunity to continue these
13 programs, yes.
14 Q. And you made plans based on the belief
15 that you were going to be promoted, is that
16 right?
17 A. Well, we had actually a direction or a
18 planning process that required us to inform
19 subordinates of their future careers who was
20 going to take my place, what was going to happen.
21 That was the idea behind the six month period was
22 to allow for uniform transition to a new way of
23 doing things, new directors, new managers, that
24 kind of thing.
54
1 Q. At any rate, after you heard that you
2 were going to be promoted, what was that? That
3 was around December of '83, is that right?
4 A. November/December, something like that.
5 Q. After you heard that you were going to
6 be promoted, you went and bought a big house in
7 Richmond, is that right?
8 A. No, Mr. Lombardi, did not buy a big
9 house in Richmond. My wife made an offer on a
10 home sometime in early part of 1984 based on her
11 -- on her status within that company. I didn't.
12 I was not involved in that. I was going to live
13 there but -- as you pointed out, but I --
14 Q. Your wife was going to buy a big house?
15 A. That's right.
16 Q. And you were going to live with your
17 wife?
18 A. That's true.
19 Q. In the big house?
20 A. Wasn't a big house, but, yes.
21 Q. In Richmond?
22 A. Yes.
23 Q. And so you made that -- you made that
24 claim. People around Philip Morris were they
55
1 told -- were people in your department told that
2 you were going to be the Vice President of R and
3 D?
4 A. They were.
5 Q. And people knew -- that you associated
6 with on a daily basis knew that, is that right,
7 Dr. Farone?
8 A. It was announced to all the directors
9 and generally throughout R and D. There was a
10 succession planning process that required that
11 changes were going to be made in a reasonable
12 way.
13 For example, Dr. Osbene was going to be
14 transferred, Mr. Turano was going to be replaced
15 by Harold Burnley, so there was a series of
16 things that were going to happen over the next
17 six months.
18 Q. And ultimately you found out that you
19 weren't going to be promoted, is that right?
20 A. In about June of 1984, that's correct.
21 Q. In June of 1984, you found out that you
22 were not going to be promoted. And you came to a
23 conclusion yourself about why that was so, didn't
24 you?
56
1 A. I did.
2 Q. You came to a conclusion that had to do
3 with your wife, is that right?
4 A. That is correct.
5 Q. Okay. And you concluded that it had to
6 do with a claim that your wife had brought
7 against Philip Morris, is that right?
8 A. That's correct.
9 Q. And based on that, you were angry and
10 upset, is that right? Based on the fact that you
11 weren't promoted, you were angry and upset?
12 A. No, I wasn't angry. I was advised by
13 Dr. Hausermann to consult an attorney, and at
14 that point I recognized that I needed to
15 negotiate a means of leaving Philip Morris
16 because the situation with regard to my wife's
17 EEOC complaint had escalated to a point where
18 that was a major issue with Philip Morris, and
19 there was no way that I could stay there anymore.
20 Q. Well, you wrote a letter to Dr.
21 Hausermann saying that you were going to sue the
22 company, is that right?
23 A. If you have the letter, we could show
24 that and it would show that I did not say I was
57
1 going to sue the company.
2 Dr. Hausermann advised me to get an
3 attorney. The attorney told me that I should
4 file EEOC complaint, but I didn't want to do that
5 because I didn't think that was proper without
6 talking to Dr. Hausermann about it. So I wrote a
7 letter to Mac saying, well, we had these
8 discussions in the past; you promised me or
9 Philip Morris promised me this position; I don't
10 want it to reflect on my reputation, my career,
11 and I have retained an attorney and told him to
12 prepare to file a complaint, but I don't want to
13 do it until we talk about it and resolve the
14 issue. And that's exactly what happened, Mr.
15 Lombardi. We resolved the issue.
16 Q. Well, I guess I didn't say what
17 happened, what didn't happen, doctor. I -- I'm
18 just asking you some questions about what
19 happened back at the time.
20 You understand that, don't you?
21 A. Yeah.
22 Q. Okay.
23 A. I'm explaining what happened.
24 Q. And you're saying your testimony Dr.
58
1 Hausermann told you to go out and get an attorney
2 so that you could sue the company, is that what
3 you're saying?
4 A. Dr. Hausermann said he could not advise
5 me as to the reason why I was not going to get
6 promoted. So he said I can't talk to you about
7 this. The only thing you can do is to get some
8 -- get advice of an attorney. So I took his
9 advice, and I did that.
10 Q. Okay. And you got an attorney, is that
11 right?
12 A. That's true.
13 Q. And the -- you talked to the attorney,
14 I take it?
15 A. Correct. I didn't follow his advice,
16 but, yes, I talked to the attorney.
17 Q. You sent a letter to Philip Morris or
18 did Dr. Hausermann as a result of that discussion
19 with the attorney, is that right?
20 A. Yes, I did.
21 Q. And this is the one you wanted to look
22 at, isn't it?
23 A. I think you probably have it there.
24 MR. TILLERY: Just so we're clear, we
59
1 didn't discuss this, but I assume the protocol is
2 that we don't disclose any documents they're
3 going to use on cross-examination of each other's
4 witnesses since these weren't disclosed to us.
5 So if they're not going to make sure that's the
6 rule for the --
7 MR. LOMBARDI: Judge, I didn't hear
8 what --
9 MR. TILLERY: Well, we announced we
10 told you in advance that of Dr. Farone's
11 testimony, and we have never been given any kind
12 of list of documents. I'm perfectly fine with
13 that rule as long as this applies to both sides.
14 That's fine. Thank you.
15 MR. LOMBARDI: (Q) Copy of the
16 document.
17 Dr. Farone, I'll hand you just so that you
18 can see it. It's MIPM 3533. Filling in to try
19 to get it focused.
20 So this is the letter that you're referring
21 to, is that right, Dr. Farone?
22 A. It's a memorandum note to personal and
23 confidential note to Dr. --
24 Q. And you wrote it in June of 1984?
60
1 A. That's correct.
2 Q. And it's to Dr. Hausermann. That's
3 your signature down at the bottom, is that right?
4 A. That is correct.
5 Q. Okay. And you do say that you
6 retained an attorney at the top, is that right?
7 A. Yes.
8 Q. "For the purpose of taking whatever
9 legal actions are necessary to protect my career
10 from what I perceive as discriminatory
11 treatment", is that right?
12 A. That's correct.
13 Q. Okay, and this is in reference to your
14 wife's situation, is that right?
15 A. Yeah, my wife had filed an EEOC
16 complaint against the company.
17 Q. And then you said, "as we discussed I
18 believe that promises made to me by senior
19 management were not kept and that the major
20 reason for this was my wife's complaint against
21 the company".
22 Do you see that?
23 A. I do.
24 Q. Okay. And that's what you just
61
1 referred to. You thought that you weren't being
2 promoted because of your wife's complaint against
3 the company, is that right?
4 A. Well, I was not told the reason why I
5 wasn't being promoted, and I was told to go
6 consult an attorney. So that's the conclusion
7 that I came to.
8 Q. Okay. And we can read the next two
9 lines if you want to, doctor, but how about the
10 last line of the first paragraph? "Since the
11 promises were witnessed by and stated in front of
12 my peers and greatly affected my career, the
13 future needs to be clarified".
14 You wrote that, didn't you?
15 A. I did.
16 Q. And that's -- and that's -- the
17 promises you're referring to are the promises
18 that were made of your promotion in front of
19 others at Philip Morris, is that right?
20 A. That's part of the promises. The other
21 part of it has to do with what position am I
22 going to have if I'm not going to get promoted.
23 In other words, one could interpret and
24 sort of what's not quite stated this way, but
62
1 that I was actually terminated as the day of
2 which I was told that I wasn't going to get
3 promoted. Because given this planning we had
4 done, and I had designated a successor to me
5 presumably would take over and Dr. Hausermann
6 wasn't leaving, it didn't seem to leave any place
7 for me to be or to go.
8 Q. Okay. I understand that part. But
9 what you said was the promises were witnessed by
10 and stated in front of your peers.
11 That's a significant point from your point
12 of view, isn't it?
13 A. Yes.
14 Q. A -- promises were made to you in front
15 of the people you worked with every day. That's
16 what you're saying there, right?
17 A. Well, it's by reason it's by way of
18 pointing out that these are not something that
19 I'm making up; that there are witnesses to what
20 was supposed to have happened.
21 So, for example, if there was to be
22 litigation, which I did not anticipate because it
23 was going to be EEOC complaint, I'm letting him
24 know that there are witnesses. That's all.
63
1 Q. Well, but there's another aspect to it,
2 isn't there, doctor? And part of that aspect to
3 it was it was embarrassing to you to have been
4 promised a position as Vice President of R and D
5 and then -- in front of your peers and then have
6 it taken way, isn't that right?
7 A. Without an explanation I think that's
8 true also.
9 Q. It's just a natural reaction, isn't it,
10 doctor?
11 A. Well, yeah. I don't see any problem
12 with that.
13 Q. Okay. The next paragraph, doctor, you
14 say "I have instructed my attorney to prepare to
15 file a complaint". That's part -- that's the
16 first -- the first line at least, not the full
17 sentence. "I have instructed my attorney to
18 prepare to file a complaint".
19 Do you see that?
20 A. I see the first line, yes.
21 Q. Okay. And when you say you have
22 instructed your attorney to prepare to file a
23 complaint, you mean you were getting ready to
24 begin litigation against Philip Morris, don't
64
1 you?
2 A. EEOC complaint. You can tell from the
3 first line what I'm talking about because I'm
4 talking about discriminatory treatment, and my
5 wife has already filed an EEOC complaint and
6 believe the simplest way to resolve that issue is
7 to jump on to that complaint and say, okay, I
8 have been in management for long enough to know
9 that that's a nice quiet way to get around the
10 problem like this. Because you can then go
11 negotiate EEOC complaint. It's not a lawsuit.
12 And -- but I told them I wasn't going to file it
13 because I wanted to talk to him about it.
14 Because what it says here "your determination
15 with senior management on our ability to
16 negotiate a mutually satisfactory solution"
17 which, Mr. Lombardi, we did.
18 Q. Okay. Now, after you -- actually Mr.
19 Hausermann, Dr. Hausermann, excuse me, wasn't in
20 town at the time you wrote this letter, is that
21 right?
22 A. That's why I wrote it. Otherwise I
23 would have talked to him. He was on the way out
24 the door, and the only way, excuse me, I could
65
1 get him a message was to write this and ask his
2 secretary to give it to him.
3 Q. Okay. And so you -- you wrote the
4 letter while he was off on vacation, is that
5 right?
6 A. That's correct.
7 Q. And you said you wanted to keep this
8 nice and quiet with the EEOC type of claim, is
9 that right?
10 A. I hadn't got to make a plan at this
11 point.
12 Q. But that was your plan, that was your
13 overall plan to keep it quiet?
14 A. Pretty quiet. I mean the only people
15 that know about it at this point are Dr.
16 Hausermann and myself.
17 Q. Okay. But shortly thereafter you
18 started to tell the people that worked for you
19 about it, is that right?
20 A. No, that's not, Mr. Lombardi.
21 Q. Well, you did tell some of the people
22 that worked for you that you were thinking of
23 filing an EEOC claim against Philip Morris, is
24 that right?
66
1 A. I don't think so. I think what I told
2 the people who worked for me that would have
3 testified about before was that I was not going
4 to be promoted, and therefore the plans that we
5 had made for succession plans, Jerry Whidby by
6 the way supposed to advance the position I had.
7 We had all kind of plans for who was supposed to
8 advance, but that wasn't going to happen. And
9 until the situation was resolved, and I probably
10 would be terminated I told them that and that I
11 could not go much further than that because I
12 hadn't had a chance to talk it over with Max
13 Hausermann.
14 Q. Now, you -- you actually did speak to
15 other employees about the threatened EEOC
16 lawsuit, is that right, or complaint? Let me say
17 complaint so there is no confusion.
18 A. I don't recall; I don't know. Mr.
19 Lombardi, I know I spoke to them about the fact
20 that I would not be promoted and that there would
21 be -- you know, I may have mentioned it to one or
22 two of them, but that wasn't the issue.
23 The issue was that they were not going to
24 get the promotions that they had in line. Jerry
67
1 Whidby was not going to become Director of
2 Applied Research, and I forget who was supposed
3 to take over for him and all of those chain of
4 events would not happen.
5 Q. But it was actually -- may not have
6 been an issue for you, but it was an issue for
7 Philip Morris that you talked to some of those
8 employees, wasn't it?
9 A. I don't know if there was an issue for
10 Philip Morris. I mean the -- according to Max
11 Hausermann who was the official representative to
12 me, and by the way there is an official letter
13 that I have seen recently that explains the cause
14 of my termination which by the way was not
15 insubordination, and between Max and I it was
16 pretty straightforward, so I don't know.
17 I mean other people may and Philip Morris
18 may have had other opinions, but between Max and
19 I it was pretty straightforward.
20 Q. Okay. Well, in any event -- in any
21 event on June 26th you send the letter. And what
22 was the day that you got fired, Dr. Farone?
23 A. Officially or unofficially?
24 Q. Officially?
68
1 A. September 20th.
2 Q. Okay. And that's pursuant to an
3 agreement that you worked out with Philip Morris?
4 A. That's right. Unofficially July 6th.
5 Q. And July 6th is when they told you that
6 they didn't need your services anymore, is that
7 right?
8 A. Except I came back on July 7th, but,
9 yes, that's essentially --
10 Q. Came back to clean out your office, is
11 that right?
12 A. Yes.
13 Q. Okay. On July 6th you had a meeting
14 with Dr. Hausermann who had flown back in town,
15 is that right?
16 A. I had two meetings. I had a meeting
17 with Mr. Case and Dr. Hausermann were flown back
18 into town, and then after that I had a meeting
19 with Dr. Hausermann and all of the people in R
20 and D in the auditorium of the Research and
21 Development Center.
22 Q. Okay. I'm sorry. What was the meeting
23 in the auditorium?
24 A. That was to announce to the people who
69
1 worked there that I had left Philip Morris
2 amicably; that I held no bad will. Max said --
3 told those people that I had resigned as opposed
4 to -- because we did not want to upset the people
5 with this entire thing. And I agreed with Max
6 that I would do that, sit in the back and wave at
7 the people because I did not want any hard
8 feelings with regard to this situation resolving
9 of -- stemming from the EEOC complaint.
10 Q. But you actually -- I mean the fact was
11 although you put on a good face, you were upset;
12 is that right?
13 A. Of course, I was upset.
14 Q. Okay, and I didn't mean to imply you
15 shouldn't have been upset, doctor, but you were
16 upset, is that right?
17 A. That's correct. But you have a
18 professional manner in which to conduct these
19 things, and I wasn't -- I didn't need Philip
20 Morris; Philip Morris needed me. If they didn't
21 want me, that's fine. Just give me my severance
22 pay and let's get on with life, and that's the
23 attitude I took and that's what happened.
24 Q. Okay. That's the attitude you took
70
1 except at the time when you sat down with Mr. --
2 Dr. -- I keep saying Mr., I apologize. Dr.
3 Hausermann and there's another fellow there too,
4 is that right? Mr. Case, is that right?
5 A. Mr. Case the head of the Human
6 Resources Department who was theoretically the
7 person to break the news to me that my services
8 were no longer needed on that day so, yes.
9 Q. Okay, and so it was a meeting between
10 you, and Dr. Hausermann, and Mr. Case, is that
11 right?
12 A. That's correct.
13 Q. And I think you said it was July 6th of
14 1984?
15 A. Yes.
16 Q. Okay, and at that meeting, Mr. Case
17 read you a statement, is that right?
18 A. Well, that's what you said. He had a
19 statement out of his desk, and I believe he was
20 reading it, but I didn't have access to that
21 statement, didn't see it, but I heard what he
22 said.
23 Q. Well, that's fair enough, doctor. But
24 it looked to you like he was reading from
71
1 something, is that right?
2 A. That's correct.
3 Q. And what he said to you, I'm sure you
4 don't remember the exact words, but essentially
5 what he said to you was because of an attitude of
6 insubordination demonstrated by statements made
7 to other employees regarding your threatened
8 litigation, you were being terminated; is that
9 right?
10 A. That's correct. And at that point I
11 said I think you're making a big mistake because
12 I didn't threaten any litigation, and the
13 discussion with the other people was part of our
14 succession plan because I was not going to be
15 there and I didn't consider it to be
16 insubordination so I told him he's made a
17 mistake.
18 Q. Well, the first thing you did was you
19 became visibly upset, is that right?
20 A. Yeah, I mean why wouldn't you be upset?
21 Somebody is making statements that are not true.
22 And Dr. Hausermann by the way agreed with me that
23 they weren't true.
24 Q. And you were shocked, right?
72
1 A. Yeah.
2 Q. You're extremely shocked?
3 A. Of course.
4 Q. You did not anticipate that sending a
5 letter like this would wind up with you being
6 terminated from Philip Morris, is that right?
7 A. I felt it was extremely unprofessional.
8 Q. Okay, and you did -- you interrupted
9 Mr. Case in the middle of his statement and said
10 that he had made a big mistake; he was making a
11 big mistake, is that right?
12 A. He did make a mistake.
13 Q. And you said to him, how am I going to
14 live without the income, is that right?
15 A. No.
16 Q. You said to him, I have a wife and a
17 family and have just purchased a new house.
18 Didn't you say that to him?
19 A. I did not.
20 Q. You took your glasses off?
21 A. I took my glasses off.
22 Q. And you threw them in the air?
23 A. I didn't throw them in the air. I tell
24 you what I did. I took my glasses off and went
73
1 thinking about the situation like this. I didn't
2 throw them anywhere.
3 Q. Not in the air?
4 A. I don't -- I don't recall throwing them
5 in the air.
6 Q. Okay. And you also said something to
7 Mr. Case and Dr. Hausermann in Latin, is that
8 right?
9 A. No, Mr. Lombardi. I said it to Dr.
10 Hausermann in Latin. Mr. Case didn't know Latin
11 from Greek.
12 Q. Do you know that? Did you ask him if
13 he knew Latin?
14 A. He didn't know what I said.
15 Q. How do you know he didn't know what you
16 said?
17 A. Dr. Hausermann and I discussed it
18 afterwards, several occasions.
19 Q. Dr. Hausermann told you that Mr. Case
20 didn't understand what you said?
21 A. I don't recall what Dr. Hausermann said
22 exactly, but the statement was made to Dr.
23 Hausermann because of our longstanding friendship
24 discussion he was Latin scholar and good friend
74
1 of mine.
2 Q. And you're a fan of classic literature?
3 A. I am. And so I said the "de jaelia
4 jacta est" meaning the die is cast.
5 Q. Not everybody here speaks Latin,
6 doctor, so let's just go a little slower. Say
7 the phrase again that you said.
8 A. "De jaelia jacta est", the die is cast
9 meaning that fates have decided I'm out of here.
10 And Max actually smiled and it was not a
11 declaration of war that Julius Caesar made when
12 he crossed the Rubicon.
13 Q. Would he -- let's slow down. Let's do
14 it slow because not everybody is going to be
15 aware --
16 THE COURT: Roman history here.
17 MR. LOMBARDI: -- here.
18 Your Honor, it's important to what Dr.
19 Farone did at the time and what's going on here
20 today, Your Honor.
21 THE COURT: Die is cast and we have
22 crossed the Rubicon. Rome is jeopardized.
23 MR. LOMBARDI: It was what Caesar said
24 when he crossed the Rubicon, is that right,
75
1 doctor?
2 A. That's correct. If one was going to
3 make a military analogy believe me as a student
4 of military history that is not the one I would
5 use. There are so many better ones.
6 Q. When you said that you -- when you said
7 that you were intending to threaten Philip
8 Morris, isn't that right, doctor?
9 A. Mr. Lombardi, no, I was not
10 threatening. Little old me threatening Philip
11 Morris? Come on.
12 Q. Well, we'll talk about that in a
13 minute, doctor.
14 But did you intend for it to sound ominous?
15 A. No. I wanted to get out of there and
16 talk with Max to figure out how we extricate
17 ourselves from this situation and we did. We
18 extricated ourselves; we negotiated the
19 settlement.
20 Max came over to my house. You know, we --
21 we've had -- I had the going away party with the
22 people. It was all resolved in a very friendly
23 manner. It's not until this litigation began in
24 1996 that this interpretation has been put on
76
1 this termination.
2 Q. Well, you would agree -- well you were
3 very upset at the time you said "de jaelia jacta
4 est", is that right?
5 A. I was upset sure because I felt it was
6 unprofessional way it was being done but not to
7 the point of -- I mean what war am I going to
8 declare? I don't understand.
9 Q. Well, actually I wasn't the one that
10 said it was a declaration of war, was I, doctor?
11 A. At this trial, that's correct.
12 Q. You said it at this trial?
13 A. Yes.
14 Q. Yes, you were the one that said that.
15 And shortly after this conversation, you entered
16 into a settlement with Philip Morris, is that
17 right?
18 A. Yes.
19 Q. And you and your wife ultimately left
20 Richmond, is that right?
21 A. Well, yes. I started my company and
22 within a week of the time that I left Philip
23 Morris I had my first major contract.
24 Q. Okay. And you actually were somewhat
77
1 upset with Philip Morris about some out placement
2 activities that they engaged in, isn't that
3 right?
4 A. Yes, just one.
5 Q. They called it one of the most
6 humiliating things you have been through in your
7 life, is that right?
8 A. That's true.
9 Q. You went to a company for an interview?
10 A. A.H. Robins.
11 Q. That's the company you went to for an
12 interview?
13 And when you got there you thought that
14 they didn't treat you with respect, is that
15 right?
16 A. No. They told me that was I the guy
17 that got fired from Philip Morris, and I just had
18 signed a settlement agreement that said they
19 weren't going to tell anybody that I was fired
20 from Philip Morris. So, you know, that's why I
21 was upset not so much because --
22 Q. Well, you thought they weren't even
23 interested in giving you a job first of all, is
24 that right?
78
1 A. Well, I don't think they were.
2 Q. Because then you blame that on Philip
3 Morris, is that right?
4 A. No. No, I didn't need a job. You see
5 I already had my first main contract. I only
6 went to that interview because I was trying to be
7 polite. I didn't want to look discourteous by
8 saying I was going to turn down an offer for help
9 of Philip Morris. That the job had been Vice
10 President of R and D of A.H. Robins and better
11 than the deal I signed with Dean Witter Reynolds,
12 I would have done it.
13 Q. Okay, and in any event, doctor, tobacco
14 litigation took an upswing in the 1990s, is that
15 right?
16 A. I thought it started in 1980s, but I
17 guess you could say there's more cases now than
18 there was then.
19 Q. Well, for you it took an upswing in the
20 1990s, is that right?
21 A. 1996, yes, because once I did that
22 paper for FDA there was no holding back the
23 telephones calls.
24 Q. How much of your time now do you spend
79
1 traveling the country testifying against Philip
2 Morris or the other tobacco companies?
3 A. Well, it's expanded beyond testifying.
4 I spend ten to fifteen percent of my time doing
5 lectures, working with public health agencies and
6 testifying. Many of the other people interested
7 in reducing harm from tobacco.
8 Q. Have you sat down and computed how many
9 days you spend testifying against Philip Morris,
10 actually testifying? That's all I'm talking
11 about.
12 A. No, cause I don't really separate
13 Philip Morris from B and W and --
14 Q. Let's take it as a group then.
15 Have you sat down and you figured out how
16 many days just testifying days you spent against
17 Philip Morris and others in the tobacco industry?
18 A. I would estimate since 1996 maybe
19 seventy days.
20 Q. Okay. Seventy days of testimony, is
21 that right?
22 A. That's right.
23 Q. And you have testified in a number of
24 trials, is that right?
80
1 A. That is correct.
2 Q. You have testified -- well are you due
3 to testify in a trial soon in New Orleans?
4 A. I believe so.
5 Q. Okay. You have testified in a case
6 called the Washington AG case, is that right?
7 A. I think I remember it from that case,
8 yes.
9 Q. I was there.
10 You remember that case?
11 A. I do.
12 Q. You remember the iron workers' case?
13 A. Yes, I do.
14 Q. Williams-Branch?
15 A. Yes, that's an organ case.
16 Q. Widdick?
17 A. Is that the Florida case?
18 Q. Engle?
19 A. Florida case.
20 Q. Blankenship?
21 A. West Virginia.
22 Q. Bullock?
23 A. Yes, California.
24 Q. Whitely?
81
1 A. Yes.
2 Q. Anderson?
3 A. New York, yes.
4 Q. La Belle?
5 A. Carolina.
6 Q. Falise?
7 A. New York.
8 Q. Blue Cross Blue Shield?
9 A. New York.
10 Q. Whitely?
11 A. Another California case.
12 Q. Nery?
13 A. I don't remember, that's a New York
14 state case.
15 Q. Bolling?
16 A. Yes.
17 Q. Arch?
18 A. You mean Barnes?
19 Q. Memphis Consolidated?
20 A. Arch, you mean Barnes case?
21 Q. Yes, I think it is Barnes also.
22 A. Yeah, okay.
23 Q. Memphis Consolidated?
24 A. I don't recall that one.
82
1 Q. And you've had the opportunity since
2 you started testifying against the tobacco
3 companies to have media attention also, haven't
4 you?
5 A. Well, I guess you could say that. I
6 mean I have been asked to explain tobacco
7 technology for the BBC and for "60 Minutes" and
8 all kinds of things, yeah.
9 Q. Right. You don't have any way of
10 knowing this I guess, doctor, but -- but the "60
11 Minutes" that you were on it's been played in
12 this court, you were on a "60 Minutes" program,
13 is that right?
14 A. I was on "60 Minutes" twice, I believe.
15 Q. Okay. You have been on "60 Minutes"
16 twice. You have been profiled in newspapers, is
17 that right?
18 A. That is correct.
19 Q. You got a lot of attention, is that
20 right?
21 A. Unwanted attention, yes.
22 Q. Okay. You don't like the attention
23 that is brought by testifying against the tobacco
24 companies, Dr. Farone?
83
1 A. I do not.
2 Q. You do not.
3 If you don't like it, why are you doing it
4 so much, Dr. Farone?
5 A. Because I feel an obligation to the
6 four hundred thousand people who die every year
7 from smoking cigarettes.
8 Q. Okay, doctor.
9 Let's talk about the FTC for a minute. You
10 gave some testimony on the FTC or I guess maybe
11 it was yesterday, doctor, is that right?
12 A. I think probably, yes.
13 Q. Okay. And the FTC is, of course, the
14 Federal Trade Commission, is that right?
15 A. That is correct.
16 Q. And the FTC is an agency of the United
17 States government that has some regulatory
18 responsibility over the tobacco industry, is that
19 right?
20 A. Among other industries, that's correct.
21 Q. Correct. I didn't mean to limit it to
22 tobacco industry, but the FTC has significant
23 responsibilities concerning the tobacco industry,
24 is that right?
84
1 A. They have responsibilities. I don't
2 know how significant I call it, but, yes, they do
3 have responsibility.
4 Q. Okay. And actually the FTC -- you're
5 aware that the FTC regulation of the tobacco
6 industry goes back well for the purposes of this
7 case at least as early as the 1950s, is that
8 right?
9 A. I'm aware that back to 1955.
10 Q. Okay, and in the 1950s, the FTC took
11 action related to -- well strike the question.
12 In the 1950's there was tobacco advertising
13 obviously, is that right, Dr. Farone?
14 A. That is correct.
15 Q. And in the 1950s tobacco advertising
16 was permitted to include information about the
17 tar yields of cigarettes, is that right?
18 A. I'm not sure I understand the question.
19 Q. Tar yields of cigarettes.
20 In the 1950's tobacco advertising could
21 contain information about the tar yields of
22 cigarettes, is that right?
23 A. Not specifically aware of that.
24 Q. Were you aware that something called
85
1 the "tar derby", Dr. Farone?
2 A. Yes, I was aware of that.
3 Q. Okay, and the "tar derby" in the late
4 1950s was -- was a situation where the tobacco
5 companies were advertising the tar levels in
6 their cigarettes, is that right?
7 A. Yes. But the part I wasn't aware of
8 wasn't that that occurred, but what role the FTC
9 played in that. I don't recall that because of
10 the --
11 Q. Fair enough, fair enough.
12 The only question right now is was there a
13 "tar derby" in the 1950s?
14 A. Yes, there was.
15 Q. In particularly the late 1950s, is that
16 right?
17 A. That is correct.
18 Q. And following on the heels of the
19 determination that there was a dose response
20 relationship between tar levels and cancer
21 particularly in the mouse skin painting test I
22 guess but also in epidemiological tests, is that
23 right?
24 A. That is correct.
86
1 Q. So from the -- approximately 1955 to
2 1960, the tobacco companies were advertising
3 based on tar yields, is that right?
4 A. As I say I don't really know which
5 advertising, what was meant, you know, what was
6 being done in terms of advertising. I know
7 generally what you're saying is correct, but I
8 don't have any specifics on that.
9 Q. Okay. Fair enough.
10 1960 you're aware that the FTC changed its
11 policy, is that right, concerning tar nicotine
12 yields in advertising?
13 A. I'm aware that the advertising rules
14 were changed in the 1955s, yes.
15 Q. In 1960 the FTC put in a prohibition on
16 advertising tar levels, is that right, doctor?
17 A. I'm not sure this is the one that I
18 have seen and discussed before, but it's not a --
19 is that the rule where the FTC says that before
20 you could advertise anything that is related to
21 health you have to bring evidence to the
22 committee?
23 Q. No, I think you're -- I think you're
24 probably thinking of something else. But I'll
87
1 just take what you know, doctor, right now.
2 Do you know that --
3 A. Okay.
4 Q. -- that in 1960 -- in 1960 the tobacco
5 companies stopped advertising tar and nicotine
6 levels in their -- for their cigarettes?
7 A. Yes, they did. My understanding was is
8 that was because the FTC was requiring proof that
9 any claim of that type actually resulted in the
10 health benefits. You were allowed to make it
11 provided you would bring to the commission your
12 evidence that supported the claim.
13 Q. Okay, and the net effect was -- the net
14 effect was that the FTC or that there were no
15 more tar yields referenced in advertising from
16 1960 for a period of time, is that right?
17 A. Net effect was that.
18 Q. Okay, and the net effect was that there
19 was no advertisement of tar yields from 1960 to
20 say about 1966 or so, is that right?
21 A. No advertising regarding yields.
22 Q. Tar yields, correct?
23 A. Yeah, correct.
24 Q. Okay. And then in the mid-1960's the
88
1 FTC took some action to come up with a method for
2 testing the tar yields in cigarettes, is that
3 right?
4 A. Yes.
5 Q. Before that time the FTC didn't have a
6 method, is that right?
7 A. No, only the various companies within
8 the industry had a method.
9 Q. Okay. There was no standardized method
10 among those companies though, is that right?
11 A. That is correct.
12 Q. People had different tests that they
13 were using, is that right?
14 A. Slightly different tests, yes.
15 Q. And they were unable to come up with a
16 uniform measure based on those tests, is that
17 right?
18 A. Different companies would get different
19 results, that's correct.
20 Q. And we should take a step back, doctor.
21 When you're talking about the tar in smoke, tar
22 is in smoke, is that right?
23 A. No, tar is what is collected on the
24 pad. Some tar gets through the pad. I mean it's
89
1 a defined thing tar.
2 Q. Tar -- tar happens when you light the
3 cigarette and smoke comes off of it, is that
4 right?
5 A. You get the smoke aerosol which
6 contains materials that are collected and called
7 tar.
8 Q. Yeah, that's what -- that's really what
9 I'm talking about?
10 A. Okay.
11 Q. When you have the cigarette that is
12 unlit sitting in front of you you don't talk
13 about the tar in that particular cigarette.
14 There's no tar at that point in time, is that
15 right?
16 A. It's a semantic thing, of course, not
17 because it's not lit, yes.
18 Q. So when you light the cigarette you
19 create the smoke and when you create the smoke
20 you have the tar, is that right?
21 A. You have an aerosol which has part of
22 it called tar, yes.
23 Q. Okay, and the tar -- I don't -- I want
24 to make sure I'm stating this in the way you're
90
1 comfortable with. The tar -- can I say the tar
2 is in the smoke, and you'll be comfortable with
3 that?
4 A. I understand what you mean, yes.
5 Q. Okay. The tar is in the smoke, is that
6 right?
7 A. Well, I understand what you mean.
8 Okay, smoke comprises materials which turn into
9 tar when you collect them on the pad.
10 Q. Uh-huh. Okay. The tar -- the tar that
11 a smoker gets from a cigarette depends on how
12 much smoke they inhale, is that right?
13 A. I'm having trouble following you. I
14 mean you get it in the lungs. Where do they get
15 it? Because in the mouth they get more. I mean
16 what do we mean by --
17 Q. Just to the smoker. I am just talking
18 about to the smoker. The amount of tar you get
19 depends on the amount of smoke you take in?
20 A. Into your mouth.
21 Q. Yes?
22 A. Okay.
23 Q. Is that correct?
24 A. Yes.
91
1 Q. Okay. And the amount of tar that any
2 given smoker gets from a cigarette will depend on
3 that individual smoker, is that right?
4 A. That is correct.
5 Q. Okay. So if I'm sitting over there
6 and I smoke two puffs of a cigarette, and
7 somebody over here smoking five identical puffs,
8 I'm getting less tar; is that right?
9 A. Depends on the cigarette.
10 Q. Okay. But the point I'm asking, sir,
11 assume everything is equal, if I smoke two and
12 somebody else smokes five puffs, the person with
13 five puffs is getting more tar because they take
14 in more smoke, is that right?
15 A. With identically designed cigarettes
16 the tar that you obtain it's not literally but
17 it's proportional to the puff count. The first
18 puff, you know, gives more tar and then it
19 decreases as you go down the rod, but basically
20 you're okay.
21 Q. Okay. And the amount of smoke that a
22 -- the tar that this smoker gets will depend on
23 the size of the puffs that they take, is that
24 right?
92
1 A. That's true.
2 Q. And the amount of tar that a smoker
3 gets will depend on the number of puffs they take
4 in a cigarette, is that right?
5 A. That's true.
6 Q. And the number -- and the amount of tar
7 that you get from a cigarette will depend on the
8 intensity of the way you smoke the cigarette, is
9 that right?
10 A. Yes.
11 Q. And the amount of tar that any
12 individual gets from the cigarette is going to be
13 based on the way that individual smokes the
14 cigarette, is that right?
15 A. Yes.
16 Q. And the amount -- well you have
17 actually said, doctor, -- you have said before in
18 testimony that all smokers are different, is that
19 right?
20 A. That's very difficult to come to any
21 other conclusion. When you get down to, you
22 know, the molecular levels and talks about
23 differences you can categorize I have testified
24 put them in general categories especially if you
93
1 know what cigarette they smoke and the design of
2 that cigarette. But -- but clearly there's huge
3 differences among smokers.
4 Q. Okay. And that's just because people
5 are different, right? It's as simple as that?
6 A. No.
7 Q. They're huge differences among smokers?
8 A. Yes, it depends on the cigarette, the
9 deliverable nicotine, and the nicotine level that
10 that person wishes to extract from the cigarette.
11 So it's -- it's a cause and effect thing. It's
12 not just people smoking for tar.
13 I don't think people smoke for tar, otherwise
14 cigarettes like Next and Camel would have been a
15 market success.
16 Q. We can talk about those later, but you
17 have said actually, doctor, in testimony before
18 that smokers are all different. They're like
19 snowflakes?
20 A. That's -- I mean they're all different
21 in terms of how they use the product. The
22 similarity is their desire to extract whatever
23 level which is also different of nicotine they
24 wish to extract.
94
1 Q. Each smoker has a different level of
2 nicotine that they want to extract too, is that
3 right?
4 A. I don't know if you could say each
5 smoker, but I mean basically if you cut it fine
6 enough, you know, if we're talking to the tenth
7 decimal place every yardstick is different. I
8 mean, you know, just a question of how closely
9 you want to cut it.
10 If we're talking about to the nearest tenth
11 of a milligram huge similarities. You know,
12 depends on what your unit of measure is, but
13 basically I think the point which I can agree
14 with is that tremendous variety of the way people
15 smoke and therefore a tremendous variety of
16 yields they obtain.
17 Q. Okay. And -- and, doctor, that was one
18 of the issues that the FTC had to grapple with in
19 coming up with a test method for tar levels in
20 smoke, is that right?
21 A. Yes.
22 Q. They had to grapple with the fact that
23 no test method was going to be capable of
24 measuring exactly what any individual smoker was
95
1 going to get, is that right?
2 A. That's right.
3 Q. Because there was no test measure, no
4 test method out there that could tell you exactly
5 what the population in all the people in the
6 populations would get from a cigarette, is that
7 right?
8 A. I can agree with that.
9 Q. And so the FTC began a process of
10 trying to come up with a test method, is that
11 right?
12 A. The FTC solicited advice from the
13 industry and others who might be interested about
14 what method they should use. I believe that's
15 the way it worked if I recall correctly.
16 Q. Okay, this is back in the mid-1960's or
17 so, is that right?
18 A. Right, because when I was doing my
19 project at Virginia State tobacco smoke that
20 whole thing was going on. So that's sort of
21 peripheral involvement in Virginia. It was
22 discussed part of chemical society meetings and
23 things I was going to.
24 Q. You were generally aware of what was
96
1 going on, is that right?
2 A. Yes.
3 Q. And the Federal Trade Commission
4 actually received comments from the tobacco
5 companies about how they could go about doing
6 this test, is that right?
7 A. Yes.
8 Q. And let me say one of the reasons or
9 the reason you were aware at the time the reason
10 that this testing was starting to be considered
11 by the FTC was there was a big interest in tar in
12 general in the cigarette world, is that right?
13 A. I'm not sure. I'm the sure.
14 Q. If you don't understand the question
15 just let me know and I'll rephrase it.
16 At that time in the mid-1960's after the
17 1964 Surgeon General's Report, is that right?
18 A. That's correct.
19 Q. And that was a huge deal, is that
20 right?
21 A. Very important, yes.
22 Q. Okay, and in 1966 or so, the Public
23 Health Service was talking about the need to
24 reduce tar and nicotine yields in cigarettes, is
97
1 that right?
2 A. To reduce the toxic materials in the
3 smoke and --
4 Q. And the American Cancer Society and
5 other organizations like that were saying you
6 ought to bring the tar and nicotine levels of
7 smoke down, is that right?
8 A. That's correct.
9 Q. And it was in response to those kinds
10 of comments that were made by other agencies of
11 the government and the public health community
12 that the FTC decided to come up with this test,
13 is that right?
14 A. Correct.
15 Q. Okay. And you are aware and you're
16 familiar with submissions paid by the tobacco
17 companies to the FTC concerning the test method,
18 is that right?
19 A. The original submissiond I haven't seen
20 them all, but I'm aware of some of them, some of
21 the different methods.
22 Q. I'll give you one and see if you're
23 familiar with this, and I think you are.
24 I'll take 7205, please.
98
1 And this has it says MIPM 7205, Your Honor,
2 and this is a document you have seen before,
3 isn't it?
4 A. Yeah.
5 Q. It's a submission to the Federal Trade
6 Commission by the tobacco companies, is that
7 right?
8 A. That is correct.
9 Q. Okay, and that was submitted following
10 a 1966 hearing?
11 A. Yes.
12 Q. It says on the front page there?
13 A. Yes.
14 Q. Okay, and this is a submission where
15 the tobacco companies including Philip Morris, is
16 that right?
17 A. That is correct.
18 Q. Tobacco companies including Philip
19 Morris was telling the FTC what it thought of the
20 method that the FTC was using or proposing to use
21 I guess I should say, Dr. Farone?
22 A. Yes, they were essentially laying out
23 all of the problems and methods.
24 Q. Okay, and the method at that time it
99
1 was called the Ogg, o-g-g, method, is that right?
2 A. Yes.
3 Q. That was named for somebody who had
4 proposed it I take it, is that right, Dr. Farone?
5 A. Yes.
6 Q. If you turn to page 2, 7205.3.1 let's
7 go ahead and look at the title there.
8 It says, "What Is Not Being Measured", and
9 this is what the tobacco companies are telling
10 the FTC, is that right, Dr. Farone?
11 A. That's my understanding.
12 Q. Okay. All right, and in the second
13 paragraph there it says "the Ogg method" that's
14 the -- what's to become the FTC method, is that
15 right, Dr. Farone?
16 A. Yes.
17 Q. Okay. "Does not measure the volume of
18 smoke or the PM".
19 What is PM?
20 A. It's defined in the paragraph above
21 where it says it doesn't measure the total
22 nicotine as particulate matter.
23 Q. Okay, and what's particulate matter,
24 Dr. Farone?
100
1 A. Well, that's the materials collected on
2 the pad before you subtract the nicotine and
3 water to come up with a tar number.
4 Q. Okay. And it says, "the Ogg method
5 does not measure the volume of smoke or the PM or
6 nicotine in the volume of smoke - that any human
______
7 being, underlined, will draw from smoking any
_____
8 particular cigarette".
9 Do you see that?
10 A. Yes.
11 Q. And that's true, is that right?
12 A. That's true.
13 Q. Okay. "Each smoking characteristic is
14 leveled or averaged out by the standard method".
15 You see that?
16 A. Yes.
17 Q. Okay, and then the tobacco companies
18 including Philip Morris say to the FTC, "no two
19 human smokers smoke in the same way. No
20 individual smoker always smokes in the same
21 fashion".
22 Now, that's true, too, isn't it, doctor?
23 A. Yes.
24 Q. And what that means is that even if
101
1 you're talking about one individual smoker, that
2 individual will smoke differently at different
3 times, is that right?
4 A. All depends on nicotine demand, yes.
5 Q. Okay, and so in the morning when they
6 first get up a smoker might smoke particularly
7 intensely, correct?
8 A. That's correct.
9 Q. And then by the afternoon after the
10 smoker has been up and working for a while, they
11 might not smoke as intensely, is that right?
12 A. That's all possible.
13 Q. Well, that's -- I mean that is true.
14 That's what -- that's what it means to say that
15 no individual smoker always smokes in the same
16 fashion, correct?
17 A. I mean that's an interpretation of what
18 it could mean. I can think of many other ways,
19 but I don't dispute that that's a possibility.
20 Q. Okay, you don't disagree with that?
21 A. No.
22 Q. Okay. "The speed at which one smokes
23 varies both among smokers, and usually also
24 varies with the same individual under different
102
1 circumstances even within the same day".
2 You see that?
3 A. Yes.
4 Q. And you agree with that?
5 A. Yes.
6 Q. "Some take long puffs or draws; some
7 take short puffs".
8 You agree with that, is that right?
9 A. See I disagree, but, yes, I agree.
10 Q. Okay. "That variation affects the PM
11 quantity in the smoke generated".
12 Is that right?
13 A. Yes.
14 Q. Okay. So all that means is that the
15 variation the way someone smokes affects the
16 quantity of the particulate matter that any given
17 smoker gets, is that right?
18 A. That's true. Or in all of this what
19 we're talking about is the same cigarette. We're
20 not comparing two cigarettes.
21 Q. Okay.
22 A. We are not comparing how they change
23 from one cigarette to another. This is all in
24 the context of how they might smoke a single
103
1 cigarette.
2 Q. Correct. And they vary the way they
3 smoke the single cigarette, correct?
4 A. That's correct.
5 Q. And that affects the particulate matter
6 tar quantity in the smoke that is generated, is
7 that right?
8 A. That is true.
9 Q. And even -- it goes on to say, "even
10 with the same type of cigarette, individual
11 smokers take a different number of puffs per
12 cigarette depending upon the circumstances".
13 This is what we're just talking about, you
14 remember that?
15 A. Yeah, I think I would be more precise
16 here and say individual smokers can take. There
17 is no -- there is no rule that says that they do
18 or they will.
19 I mean some people can be very precise in
20 their smoking habits based on data that I have
21 seen.
22 Q. Okay. Well, you don't understand the
23 tobacco companies to say that it's a rule that
24 they have to do that, right?
104
1 A. No, that is correct. I'm just pointing
2 out that I would have put that on.
3 Q. That's fair, but they go on to say,
4 "when concentrating", just to give an example,
5 "when concentrating, or talking, the number of
6 puffs is usually less".
7 You see that?
8 A. I see that.
9 Q. And that would affect -- that would
10 affect the total tar that a smoker -- an
11 individual smoker would get, is that right?
12 A. If you took less number of puffs I
13 don't know why, you know, I don't know how they
14 know that whether concentrating or talking that
15 would happen. But if you took less puffs you get
16 less tar.
17 Q. And then they give you another example
18 at the other end of the extreme. They say, "when
19 listening or required to listen, to another
20 person talking, the number of pumps per" . . . --
21 go to the next, top of the next page. . . . --
22 "cigarette as well as the duration of each puff,
23 usually increases".
24 Do you see that?
105
1 A. Yes.
2 Q. So that's another way, another reason
3 why the amount of smoke that any particular --
4 what any individual smoker gets from a particular
5 cigarette can vary, is that right?
6 A. Vary for many reasons. These are
7 possibilities. I don't -- I don't know that any
8 study cited here that say all of these things
9 happen or how they happen, but certainly nothing
10 implausible about any of these as assumptions.
11 Q. Okay. And one more, Dr. Farone, if we
12 can just go to that last one there. "The Ogg
13 method does not and cannot measure these many
14 variations in human smoking habits".
15 Do you see that?
16 A. I do.
17 Q. Okay, and you agree with that, is that
18 right?
19 A. I agree with that.
20 Q. And they're referring back to the
21 variations in human smoking habits that have an
22 effect on how much tar an individual gets from a
23 cigarette, is that right?
24 A. Yes.
106
1 Q. Okay. Now, doctor, after the tobacco
2 companies including Philip Morris submitted that
3 document to the FTC, a period of time passed
4 while the FTC was considering matters, is that
5 right?
6 A. That is correct.
7 Q. And then the FTC made a decision about
8 what it was going to do about the smoking method,
9 the smoking test?
10 A. They did.
11 Q. Okay. And they decided to initiate
12 testing, is that right?
13 A. Yes.
14 Q. And you have seen documents relating to
15 the Federal Trade Commission's announcement that
16 it's going to initiate a test method, is that
17 right?
18 A. I have.
19 Q. Okay. And that was in about the summer
20 of 1967, is that right?
21 A. Sounds right, yes.
22 Q. Okay. I'll show you a document. See
23 if that helps.
24 MR. LOMBARDI: This is Exhibit 7147,
107
1 Your Honor.
2 May I switch with you?
3 A. Sure.
4 Q. Thank you very much.
5 MR. LOMBARDI: (Q) Okay, can you --
6 you see this is the Federal Trade Commission News
7 Release from August 1st, 1967, is that right, Dr.
8 Farone?
9 A. Yes.
10 Q. And you have seen this document before,
11 is that right?
12 A. I have.
13 Q. And this is a document where the
14 Federal Trade Commission announces that it's
15 going to institute its test method, is that
16 right?
17 A. That's correct.
18 Q. And it's explaining to the public what
19 it's doing with that test method, is that right?
20 A. That is correct.
21 Q. Okay. Can we go to the second page,
22 please?
23 Just that first part would be good. That's
24 fine.
108
1 First thing I have highlighted there is
2 that the FTC is saying, "use of more than one
3 testing method would produce different results
4 which would only serve to confuse or mislead the
5 public".
6 That's what the FTC was saying at that time
7 about its reasons for coming out with a
8 standardized test method, is that right?
9 A. That's what the document says.
10 Q. Okay. I mean you don't have any reason
11 to disagree with that?
12 A. Well, in general I mean I wasn't there
13 at the time, but in general multiple methods
14 don't have to be confusing if you explain them.
15 There is plenty of governmental test methods that
16 require multiple tests, but I understand what it
17 means. They're thinking that, okay, this is
18 difficult so let's try and get one number people
19 can rely on.
20 Q. Okay, and that's what you have always
21 understood the purpose of the FTC test method to
22 be, is that right?
23 A. No, that's what I have understood what
24 is the intent of the FTC in that method.
109
1 Q. Okay. But the FTC purpose was in
2 instituting the FTC test method?
3 A. That's what I understood, yes.
4 Q. Okay, that's fine. In determining the
5 testing method the document goes on to say, "the
6 commission has not attempted to gauge the test to
7 the amount of smoke or tar and nicotine which the
8 "average" smoker will draw from any particular
9 cigarette".
10 Do you see that?
11 A. Yes.
12 Q. You understood and you understood
13 throughout your time at Philip Morris, that the
14 FTC test results were not intended to gauge the
15 average -- the amount an average smoker would
16 draw from any particular cigarette, is that
17 right?
18 A. Well, that's not quite the way I -- I
19 understand it. I understand that the parameters
20 chosen were actually close to the average based
21 on human smoking results where people who smoked
22 high tar unfiltered cigarettes; that's my
23 understanding.
24 Q. Okay. In any event, this is what you
110
1 don't dispute this is what the FTC said?
2 A. No, I don't.
3 Q. The FTC said it's not -- "it's not an
4 attempt to gauge the test to the amount of smoke
5 which the average smoker will draw from any
6 particular cigarette", is that right?
7 A. That's what they said.
8 Q. Okay. Could I have the next paragraph,
9 please?
10 Now this language may look familiar,
11 doctor. Does it look familiar from the document
12 we just read?
13 A. As a matter of fact, I think I stated
14 before that I thought they should have provided a
15 notation or quotes here because it's almost like
16 plagiarism, but I guess if they can do that.
17 Q. Okay, and what you are referring to is
18 the FTC's essentially taken what the tobacco
19 companies said in its submission to the FTC and
20 put it in their press release, is that right?
21 A. Virtually word for word.
22 Q. Okay, and they go through the same
23 stuff we talked about before about no two human
24 smokers smoke in the same way, is that right?
111
1 A. That's correct.
2 Q. And you have said already you agree
3 with that, is that right?
4 A. Yes.
5 Q. Okay, and then the next paragraph the
6 same thing, is that right?
7 Dr. Farone, this is another paragraph that
8 is identical to what the tobacco companies were
9 saying to the FTC at the time?
10 A. Yes, I think I have remarked that to
11 you in one deposition you gave, yes.
12 Q. Okay. And since that time, in 1967
13 you're aware that Philip Morris has had its --
14 has had its cigarette brands tested pursuant to
15 the FTC method?
16 A. Yes.
17 Q. And you're aware that since that time
18 Philip Morris -- well, in 1970 the FTC changed
19 its policy on advertising tar and nicotine
20 numbers, is that right?
21 A. They did.
22 Q. Okay.
23 A. I think -- I don't remember the exact
24 date, Mr. Lombardi, but I know --
112
1 Q. And -- I'm not going to hold you to the
2 exact date.
3 A. I remember the --
4 Q. Let me step back. At about the time
5 the FTC instituted the test, the FTC said that
6 there's going to be a change in the advertising
7 policy then that would make it voluntary for
8 tobacco companies but to put the tar and nicotine
9 levels in their advertisements, is that right?
10 A. That is right.
11 Q. But at that time it wasn't a
12 requirement by the FTC, is that right?
13 A. I don't -- has it ever been a
14 requirement? I don't think so.
15 Q. Okay. In 1970, didn't it become a
16 requirement that the tobacco companies report the
17 FTC method results in their advertisements?
18 MR. TILLERY: I object to his
19 mischaracterization of requirements of a December
20 1970 voluntary agreement that doesn't even apply
21 to all tobacco companies. If he's got it, I
22 would like him to show it to you.
23 THE COURT: You want to show it to me?
24 MR. LOMBARDI: I don't have -- I'll ask
113
1 the doctor -- doctor another question, but we
2 call it a voluntary agreement, doctor.
3 (Q) You understand the entire circumstance
4 of what happened with the FTC at that time, don't
5 you?
6 A. I'm not sure I understand at all, but I
7 did understand enough to know that I didn't think
8 it was a requirement.
9 Q. Well, did you understand at the time
10 that the FTC said to the tobacco companies we're
11 thinking about a regulation right now. Did you
12 understand that?
13 A. I remember that that was a
14 consideration, yes.
15 Q. Yeah, and do you remember that the FTC
16 said if you don't put the tar and nicotine levels
17 in your ads we're going to sue you?
18 MR. TILLERY: I'll object to that as
19 mischaracterization, if he has proof --
20 THE COURT: Do you have --
21 MR. LOMBARDI: I can't prove it through
22 this witness, Judge, but I can prove it.
23 THE COURT: If you got something, let
24 him see.
114
1 MR. TILLERY: I would like to see it,
2 too.
3 MR. LOMBARDI: I -- got to be some
4 latitude to cross-examine. I can't --
5 THE COURT: Wait a minute. There's an
6 objection made as to -- to the premise of your
7 question. Obviously assumes something that's
8 improper or not -- not correct. I want to see if
9 it is correct.
10 MR. LOMBARDI: Okay. I'll tell you
11 what, Your Honor. I'll move on to another
12 question, and we'll deal with that.
13 (Q) But, Dr. Farone, from 1970 on Philip
14 Morris always reported the FTC tar nicotine
15 numbers in its advertisements, is that right?
16 A. I'm not sure of that. We would have to
17 define what you mean by advertisements because
18 clearly today if what you put on the pack is part
19 of an advertisement, you know, it's on some of
20 the really low ones; it's not on the high ones.
21 So I don't think it's uniformly done that
22 for people buying these packs understand what tar
23 and nicotine number that they're getting.
24 Q. I'm talking about advertisements like
115
1 an ad in a magazine, when ads in magazines are
2 possible, Dr. Farone, did they have the tar and
3 nicotine numbers from 1970 forward?
4 A. Many of them did. I don't know that
5 all of them did that I can recall, but I'm more
6 interested at point of purchase where the final
7 decision is made. I think there's a wide variety
8 my understanding, and in looking at the Federal
9 Trade Commission results the numbers are usually
10 on the lowest tar dose.
11 The -- those you put the numbers on if it's
12 intermediate or high tar numbers on those packs,
13 that's my understanding of the labeling of these
14 products which I consider at point of purchase an
15 advertisement.
16 Q. Okay. I'm talking about -- I'm talking
17 about a magazine ad, for instance, or a billboard
18 ad, Dr. Farone.
19 Have you noticed that Philip Morris has
20 always put the tar and nicotine numbers on those
21 advertisements from 1970 forward?
22 A. I can agree that they appear on the
23 billboard or they have appeared on billboards,
24 but I don't know that they have appeared on all
116
1 billboard ads.
2 Q. Okay, and do you know from the time
3 that you were at Philip Morris that Philip Morris
4 consistently submitted its cigarettes to the
5 testing required by the FTC?
6 A. Not only did they submit them, we also
7 performed the test in our laboratories and we
8 submitted data. We actually tried to compare
9 Philip Morris data, I believe all the companies
10 do this, compare it with the FTC lab so that
11 there's some comparative information. Arguments
12 over, you know, can I call it one-tenth or do I
13 say less than five-tenths or can I say 0.0, that
14 kind of thing.
15 Q. Okay, and there was interaction with
16 the FTC on issues of that sort, is that right?
17 A. Much interaction, yes.
18 Q. Okay, but Philip Morris always
19 accurately reported as best you know the FTC test
20 results on its advertisements, is that right?
21 A. They -- I'll give you this. They
22 reported on their advertisements the numbers that
23 they agreed were the FTC after this discussion
24 took place as to what the right numbers.
117
1 Q. Fair enough.
2 They would discuss with the FTC; the FTC
3 would decide what the right number was, and
4 Philip Morris accurately reported the numbers, is
5 that right?
6 A. Again, I'm not sure on all the
7 advertising, but I do recall seeing it on
8 billboards.
9 Q. Okay. And my specific question is it
10 was always accurate as best you knew, Dr. Farone,
11 is that right?
12 A. I haven't made a check of accuracy, but
13 I have no reason to doubt that statement. I mean
14 --
15 MR. LOMBARDI: Your Honor, I'm at a --
16 at a breaking point here, if -- it's 2:25 I
17 think.
18 THE COURT: Can you go till 3:00?
19 MR. LOMBARDI: I'm not -- I would
20 prefer to break and organize my notes, Your
21 Honor.
22 THE COURT: Oh, sure. If you want to
23 break at this point, fine. We have flexibility
24 here. If that's the case we'll break at this
118
1 point, adjourn until tomorrow.
2 So we'll start at 8:00.
3 Now there's -- one of the members here has
4 a certain personal matter, and so we will not go
5 past 2:30 tomorrow.
(End of proceedings
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