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Day 3 (Morning Session)

 

21 MR. LOMBARDI: Thank you, Your Honor
22 ******
23 (Witness previously sworn.)
24 DR. WILLIAM FARONE
0003
 1 recalled as a witness herein, having been previously
2 sworn, was examined and testified as follows:
3 CROSS EXAMINATION
4 BY MR. LOMBARDI:
5 MR. LOMBARDI: Good morning, Dr. Farone.
6 THE WITNESS: Good morning.
7 Q. Dr. Farone, that is one of the demonstrative
8 exhibits that you put up before the Court yesterday, is that
9 right?
10 A. That's correct.
11 Q. And that is the one that deals with the Cambridge
12 cigarettes, is that correct?
13 A. That is one of them, yes.
14 Q. Right, there were multiples. But this is one
15 that deals with specifically Cambridge tar contents over
16 time, is that right?
17 A. That is correct.
18 Q. And there were a couple of points that you were
19 making with respect to this chart, one of which had to do
20 with a plan for the tar levels over time, is that correct?
21 A. That's correct.
22 Q. That was one of the matters, and the other matter
23 that you were talking about was related to the overlap
24 between the brand in the middle there, the Regular 100's, and
0004
 1 a newer version of Cambridge, is that right?
2 A. I don't know if it is a newer version. I think
3 it is pretty much the same cigarette.
4 Q. Well, new as far as being introduced, it starts
5 in, what is it '87, on your chart?
6 A. Oh, you are talking about the Lights 100?
7 Q. Yes?
8 A. That is different than the Regular 100, yes.
9 Q. Okay. And one of the things you are talking
10 about yesterday was the fact that the Regular 100 was out
11 there on the market, and then it overlapped with the Lights
12 100, is that right?
13 A. Yes, uh-huh.
14 Q. And you were pointing out that the Lights 100 was
15 a light cigarettes, at a tar level of 11.3, 11.7 and so
16 forth, right?
17 A. Yes.
18 Q. And that the Regular had a lower tar level, is
19 that right?
20 A. That is correct.
21 Q. And that was one of the points you were making?
22 A. Yes, the major point being the Ultra-Light was
23 the same as the Regular, when it was re-introduced,
24 essentially the same cigarette, the same tar level, with
0005
 1 terminology Ultra-Lights.
2 Q. Okay. Why, for the line in the middle of the
3 chart, that says Regular 100's --
4 A. Uh-huh.
5 Q. FTC tar and milligram, that is a brand that was
6 first introduced in December of '81, or somewhere around
7 there, is that right, Dr. Farone?
8 A. No, I don't think so. I think it was introduced
9 in 1980, but the values, I try to be clear, the values that
10 are on there come out of reports that are of those dates. So
11 you should think of each of those numbers as having been from
12 a cigarette that was sold somewhat before that, maybe a year
13 before that.
14 Q. Okay, that's fine. But it was introduced in the
15 early 1980's?
16 A. Yes.
17 Q. Okay. And where did you get the information for
18 this chart?
19 A. Well, it says on the bottom, some of it, as I
20 tried to explain, came from the Federal Trade Commission --
21 Q. Tar and Nicotine Reports?
22 A. Ratings, some of it came before. For some years
23 they weren't produced, especially in '85, '86, '87. There
24 was a dead space there where I guess they weren't funded
0006
 1 properly or whatever happened. We didn't have the charts.
2 But what we did have was the Philip Morris Cigarette
3 Information Reports, where they, every year, performed the
4 tests to provide the information to the Federal Trade
5 Commission, to compare values and testing.
6 Q. Okay, alright, now, you have got names of brands
7 all across the top, right?
8 A. That's correct.
9 Q. Now, where did you get the information for the
10 names of the brands?
11 A. Well, most of it comes from the Cigarette
12 Information Report of Philip Morris. The lowest is the
13 terminology used by Philip Morris, those brands introduced
14 there. Ultra-Lights, of course, that is what it says in the
15 Philip Morris Report, as well as Lights. I think they use
16 full-flavor. And if they are not that, then they are regular
17 cigarettes.
18 I realize that it is difficult to think of the
19 regular, the regular and the regular as having the same name,
20 but that is the way they were kind of designated in the
21 Philip Morris literature.
22 Q. Okay, the Philip Morris literature, that is what
23 you are referring to when you are talking about, I think you
24 called it Cigarette Information Reports?
0007
 1 A. Yes.
2 Q. That is an internal document of Philip Morris?
3 A. Yes.
4 Q. Which keeps track of the various tar and nicotine
5 yields of various brands and other information, is that
6 right?
7 A. That's right.
8 Q. And it is your testimony that the Cigarette
9 Information Report referred to the Regular 100's as Regular
10 100's, is that right?
11 A. No, I don't think so. I mean, I think what we
12 are saying is everything else, I don't want to call them
13 irregular, but everything else has a specific descriptor,
14 Ultra-Lights, Lights, King. And if it is not that, I have
15 called the other one a Regular 85 millimeter, that is the
16 general terminology.
17 I mean, what is it, if it is not an Ultra-Light, and
18 it is not a Light and it is not a menthol, and it is not a
19 this and it is not a that, what do you call it?
20 Q. You call that a Regular?
21 A. Yes.
22 Q. And you put Regular up there?
23 A. Yes.
24 Q. And that is, you are not quoting the internal
0008
 1 documents at Philip Morris when you call the Regular 100,
2 Regular 100's, right?
3 A. I don't recall, I think what it probably says in
4 the internal document is something like 100 ventilated
5 filter, V-F, they have little code designations after the
6 names. So, it probably just says V-F, ventilated filter.
7 Q. Okay, just so it is clear, on the chart, the word
8 regular is your word?
9 A. Could be.
10 Q. Could be or is?
11 A. Well, no, I obviously put it there. I do not
12 recall whether Philip Morris called that particular cigarette
13 a Regular. The point is that it is not a Light, it is not an
14 Ultra-Light. That is the point.
15 Q. Now, are you meaning to suggest to the Judge, by
16 this chart, that the word Regular is the one that Philip
17 Morris used with consumers to describe that brand? Are you
18 meaning to suggest that to the Court?
19 MR. TILLERY: Just for clarification, the word
20 Regular on the cigarette pack? I object to that.
21 THE COURT: No, he is talking about the graph.
22 A. No, the word Regular was intended to convey only
23 the idea that no special designation such as the Light or
24 Ultra-Light was given to that cigarette.
0009
 1 MR. LOMBARDI: In the internal documents at Philip
2 Morris, correct?
3 A. Or on the pack.
4 Q. Okay, okay.
5 A. So it is not an Ultra-Light.
6 Q. Okay.
7 A. The same, the point here is simply that the idea
8 of introducing the product, and letting the tar be increased
9 in it, which was articulated on October 15th, 1979, and for
10 which documents exist, that document that, you can see that
11 happening here. And you can see that they called something
12 later Ultra-Lights, which in the period of 1981, to '88, was
13 not called an Ultra-Light. That is the only point, what you
14 might refer to it, it was not an Ultra-Light.
15 Q. Okay. The Regular 100's were not an
16 Ultra-Light?
17 A. What I have designated as a Regular 100 was not
18 an Ultra-Light. And the Ultra-Lights 100 is also a 100.
19 Q. And you saw, did you see the packs of these
20 cigarettes? Did you ever see the packs?
21 A. Well, when I worked at Philip Morris I saw the
22 packs of the Trinity Project, the first three.
23 Q. Okay, the first three meaning the first three
24 chronologically in time?
0010
 1 A. No, the first three products, the, what I call
2 the Box 85.
3 Q. Uh-huh.
4 A. Which was, the box, the Regular, what I have
5 called the Regular 85 millimeter, and what I have called the
6 Regular 100. That was a soft pack 100, that is a soft pack
7 85, that is a box 85.
8 Q. Okay. And then the third one was the one in the
9 middle, Regular 100's, right?
10 A. Yes, that is the soft pack 100 millimeter
11 cigarette.
12 Q. And you saw those packs?
13 A. In 1980, yes, 1980.
14 Q. Have you seen them since then?
15 A. Have I seen --
16 Q. Have you seen those packs since 1980?
17 A. Of those cigarettes?
18 Q. Yes?
19 A. No.
20 Q. Have you seen any pictures of those packs since
21 1980?
22 A. Yes.
23 Q. You have seen pictures of them?
24 A. Well, I think this was an issue at several of the
0011
 1 trials, where pictures of those cigarettes were shown to
2 illustrate the color of the pack. That some of those, those
3 were red packs, and I believe these are blue packs.
4 Q. Okay. Because the reason I am asking, doctor, is
5 you know, you know that on that pack, the packs in the middle
6 that were, that show 2.9, the Regular 100's, you know that
7 they actually said ultra-low tar on the packs, don't you?
8 A. Yes, but they don't say Ultra-Lights.
9 Q. They say ultra-low tar, don't they, doctor?
10 A. They all say that.
11 Q. Let's put it up on the screen, 201.4.
12 A. Yes, this exactly the point.
13 Q. I don't know if you need this, and so, doctor, it
14 is the case that the original versions of Cambridge were sold
15 with these blue stripes on the pack, is that right?
16 A. That is the case. And you will note here that
17 they are all called ultra-low tar.
18 Q. Correct.
19 A. And you haven't shown, you have eliminated from
20 this picture the lowest one, the 0.0 milligram of tar one,
21 which also says the same thing. It is very confusing to
22 customers to know what you mean by that. That was one of the
23 points that I was trying to make.
24 Q. It is confusing because all three packages were
0012
 1 called ultra-low tar?
2 A. Yes.
3 Q. Did it help the customer, doctor, did it help the
4 customer that all three packages had the actual tar level of
5 the cigarette on it as well?
6 A. That is an assistance to the customer.
7 Q. It says only four milligrams of tar on the big
8 pack there?
9 A. Yes.
10 Q. Was that of assistance to the customer, knowing
11 which pack was which and how much tar was associated with
12 each pack?
13 A. Of course. And if Philip Morris had put that on
14 all of its packs, instead of just on the ones that are below
15 five milligrams --
16 Q. We are talking about your chart from yesterday,
17 doctor, and you see the smaller pack?
18 A. Yes.
19 Q. That says right on the pack, ultra low tar,
20 doesn't it?
21 A. Yes.
22 Q. Ultra, if you are talking about ultra low tar,
23 that means less tar than low tar, doesn't it? Or are you
24 confused about that?
0013
 1 A. I'm not confused. Show me low tar Cambridge.
2 Q. I am showing you an ultra low tar Cambridge.
3 A. Well, compared to what, sir?
4 Q. Well, it says four milligrams. Four milligrams?
5 A. You have called all three products, with
6 different delivery, ultra low tar. So if you say that ultra
7 low tar is one milligram, this is the exact point I am trying
8 to make.
9 Philip Morris has used those words in such a way as
10 to confuse consumers. Which one of those is ultra low tar?
11 All of them?
12 Q. Well, are you confused, well, let me ask you
13 this. Is it your testimony, doctor, that a consumer who saw
14 a pack with the ultra low tar, with the words only four
15 milligrams of tar on it, would be confused about whether that
16 pack has more or less tar than one that says ultra low tar,
17 and the words, only one milligram of tar, in it? Is that
18 your testimony?
19 A. I believe the evidence shows that people are
20 confused because the product that was marketed, advertised,
21 actually had zero, the one that you don't show here. And
22 one of the problems that people have when they see an ad of
23 something that says 0.0, and they go into the store, they are
24 not quite sure. And I think we knew that at Philip Morris,
0014
 1 that they really distinguish what it says on those packs.
2 They can say, okay, one of these is one and one of
3 these is four. And when we sold those products, Philip
4 Morris sold those products, it is the one with the highest
5 tar level that showed the greatest market acceptance, whereas
6 the advertising showed the ones with the lowest tar level --
7 Q. Well, doctor, you keep changing the subject. I
8 am talking about the two packs up here, because that is what
9 we have got up here.
10 A. Okay.
11 Q. And my question to you, is the average consumer
12 able to determine that four milligrams of tar is greater than
13 one milligram of tar, as put on the pack?
14 A. I believe the average consumer can read what it
15 says on the pack, yes, sir.
16 Q. And actually you would consider it, given your
17 concern about confusion, you would consider it a good thing
18 to put the tar levels on the packs, wouldn't you?
19 A. Every pack of every cigarette that is sold.
20 Q. And we are talking about Cambridge here, aren't
21 we, doctor? We are talking about your testimony about
22 Cambridge? They put the tar levels on the packs, isn't that
23 right?
24 A. On those packs.
0015
 1 Q. On the packs of the first Cambridge that came
2 out?
3 A. Yes, but not on the second ones.
4 Q. They have got the tar levels on the packs, don't
5 they?
6 A. That's correct.
7 Q. And they also have a description that says ultra
8 low tar?
9 A. They do.
10 Q. And you have no, you are not here testifying that
11 you personally are confused by the word ultra, are you?
12 A. Well, I wasn't till you asked the question, and
13 now I ask myself what the word ultra means, means beyond.
14 Q. Beyond low tar?
15 A. Yes.
16 Q. Does ultra mean more low tar than low tar?
17 A. Not in this case.
18 Q. Well, it says there are two ultra low tars,
19 doesn't it?
20 A. Yes. But I always thought that one of the
21 reasons for having these descriptors was to describe them
22 relative to something else. In other words, Marlboro
23 Regular, Marlboro Red, whatever you want to call it, and
24 Marlboro Light, so when you hear the term "light", you know
0016
 1 that that is different than the other one. It conveys a
2 difference in tar level.
3 So now what we are saying is ultra low tar, we can
4 put it on three different packs with three different tar
5 levels. And somehow that has meaning.
6 Q. With the numbers on it, with the milligrams on
7 the pack?
8 A. Let me see if I can answer -- From this I
9 interpret that in order for it to be ultra anything, it needs
10 to be four milligrams or less, is that what we are referring
11 --
12 Q. Doctor, lets talk about the questions related to
13 the testimony you gave yesterday.
14 A. Okay.
15 Q. Yesterday, you didn't tell the Court that ultra
16 low tar was on both of these packs, did you?
17 A. I did not.
18 Q. You did not tell the Court that the number of
19 milligrams for each cigarette was on the pack, did you?
20 A. We talked about that. We said that it was on
21 some packs.
22 Q. You didn't tell the Court that it was on the
23 Cambridge ultra low tar cigarettes that were introduced in
24 1980?
0017
 1 A. That's correct, it did not come up.
2 Q. And you didn't tell the Court, when you were
3 talking about this drift theory, between '80 and '85, I
4 think, you didn't tell the Court that throughout that period
5 of time the tar yields of the cigarettes that you say
6 drifted, were on the packs. You didn't tell the Court that,
7 did you?
8 A. No, I didn't tell the Court that. I wasn't asked
9 the question.
10 Q. Well, Mr. Tillery didn't ask you that question,
11 right?
12 A. Well, I don't think it is relevant.
13 Q. Did Mr. Tillery ask you that question?
14 MR. TILLERY: Excuse me --
15 A. Not that I recall.
16 MR. LOMBARDI: Now, the fact is that the tar yields,
17 to the extent they drifted, or however you want to
18 characterize it, with the Cambridge ultra low tar cigarettes,
19 were reflected on the packs of cigarettes throughout that
20 period of time, isn't that correct?
21 A. Only on the very lowest tar cigarettes, that is
22 correct.
23 Q. So to the extent there was some kind of drift,
24 that was being told to consumers on the pack of the
0018
 1 cigarettes, isn't that correct, doctor?
2 A. Up until the re-introduction of the Cambridge, I
3 believe that is correct.
4 Q. And the drift that you were talking about between
5 1980 and '85 was fully disclosed to consumers in the tar
6 numbers that were put right on the package of the cigarettes,
7 isn't that correct?
8 A. I'm not sure that that is correct. But I don't
9 have any evidence to contradict that.
10 Q. Lets go with 202.5. I'm sorry this is a black
11 and white copy, Dr. Farone, but you see this is another
12 Cambridge ad. Do you see that?
13 A. Yes.
14 Q. Another Cambridge ultra low tar 100's ad?
15 A. Yes.
16 Q. You see what it says on the pack?
17 A. Five milligrams of tar.
18 Q. The last one said four?
19 A. And before that it said something lower.
20 Q. And so the numbers reflect whatever was happening
21 with the FTC test results, is that correct?
22 A. They reflect, yes, the FTC test results and the
23 design of the cigarettes.
24 Q. And I think you said the important thing for you,
0019
 1 as far as tar and nicotine numbers, was to have it informing
2 the consumer at the point of sale, yesterday, didn't you?
3 A. That is one of the things that is important.
4 The other thing is when you develop a cigarette that you
5 intend to be safer, deliver less, that you don't increase the
6 tar.
7 Q. Doctor, you are changing the subject. I am
8 talking about, informing about the tar and nicotine numbers.
9 Lets focus on that for a minute.
10 A. Okay.
11 Q. You said yesterday the best thing to do would be
12 to have it at the point of sale, didn't you?
13 A. That's correct.
14 Q. How about on the package, the actual packages
15 that the consumer gets? That is a pretty good place to have
16 it if you want to have the consumer know what the tar and
17 nicotine yields are, wouldn't you?
18 A. Yes, it is one place. But if you have another
19 sign near that that says it is 0.0, then it is not good.
20 Q. So the sign on the wall that 0.0 will confuse the
21 consumer who buys the pack that says five milligrams? Is
22 that your testimony?
23 A. That is not only my testimony, there is plenty of
24 evidence to support that.
0020
 1 Q. Okay, doctor, that's fine. Doctor, I think you
2 testified yesterday that the definition of the word light,
3 you testified about the definition of the word light at
4 Philip Morris, is that right? Do I have your testimony
5 right?
6 A. I don't know the definition of the word light at
7 Philip Morris, I'm not quite sure --
8 Q. Well, did you testify that the word light was
9 intended to mean, at Philip Morris --
10 A. I testified what, in my opinion, among the people
11 working at Philip Morris, the word light was intended to
12 mean.
13 Q. So you are expressing an opinion on what other
14 people's intentions were, is that what you are saying?
15 A. No, I am giving you my understanding, as an
16 employee of Philip Morris, and in reading documents
17 concerning people who worked there, and what they say, that,
18 what the intention of the word light was.
19 Q. Well, I just want, I just want to understand, are
20 you saying that you are expressing an opinion as to what the
21 intention of the people who came up with the term light was?
22 A. I don't know who came up with the term light.
23 What I'm saying is that I was hired to make safer products,
24 that is why I was hired. I think we went through that
0021
 1 yesterday. And as part of that, general reduction of tar was
2 a part of that. And as part of that, light designated the
3 concept of general reduction, i.e., safer. That is what I
4 was saying.
5 That is the, and I can say that is the intent of
6 Philip Morris, because they hired me to do it.
7 Q. Okay. So here, it is important that I understand
8 exactly what you are saying, doctor. I thought you said
9 yesterday that you knew or you were expressing an opinion
10 that the intention of the people who came up with the word
11 light was to say safer?
12 A. I just explained the basis for that opinion.
13 Q. Your basis would have been that you were hired to
14 work on safer cigarettes at Philip Morris?
15 A. And we talk about 80% of six hundred people doing
16 the same thing.
17 Q. Okay. And that is your basis for saying that the
18 word light was intended to mean safer, is that right?
19 A. I don't quite understand. If we are now saying
20 that Philip Morris --
21 Q. I was just asking you a question, that is your
22 basis?
23 A. Not the total basis. The other basis is the
24 concept of general reduction --
0022
 1 Q. Okay.
2 A. That Philip Morris undertook from the period of
3 the 1950's through the nineteen, they stopped about 1980, but
4 over that period, to generally reduce tar levels in their
5 products.
6 Q. Okay, which you took, and you understand at the
7 time that you were there, as being an effort to make a safer
8 cigarette, right?
9 A. I thought everybody understood that. I mean,
10 that was the whole idea of reducing the tar.
11 Q. Okay, alright. That's fine, I understand. So
12 that is the basis, we have your basis of your testimony, that
13 the word light meant safer. It has to do with general
14 reduction, and what you were hired to do at the company, is
15 that right?
16 A. That's right.
17 Q. Okay. But the word light, just so there is no
18 confusion with the Court, you actually weren't even at the
19 company at the time the word lights was come up with for use
20 with Marlboro Lights, is that right?
21 A. In 1971, I was not there.
22 Q. And you weren't there, do you know who made the
23 decision to call it Lights?
24 A. I understand Mr. Landry, but maybe that would be
0023
 1 wrong, folk lore. By the time I got there, '76, there was
2 this whole mystique and aura about who did what for
3 Marlboro. And I believe that the one gentleman who was
4 actively involved is Mr. Landry.
5 Q. Well, actually, doctor, have you testified under
6 oath before that at the time you were at Philip Morris you
7 never heard any of the company lore?
8 MR. TILLERY: Excuse me, he's got to give us some
9 basis for what he is relating to. He can't just pull out
10 some document and show him --
11 MR. LOMBARDI: I'm not showing him anything.
12 MR. TILLERY: Well, don't repeat it unless you direct
13 it to us, we object to it, because he is not giving us an
14 opportunity to challenge the accuracy.
15 MR. LOMBARDI: If I show it to the witness, I will
16 show it to Mr. Tillery. But I'm not --
17 THE COURT: The protocol, if you are going to examine
18 on something he said previously, if you are reading from the
19 document -- This pertains to everybody -- You should give a
20 copy of the document so he can read, follow what you are
21 reading.
22 MR. LOMBARDI: Well, let me just ask you, without the
23 document, then, Dr. Farone, you weren't there in 1971?
24 A. That's correct.
0024
 1 Q. And actually you never heard at the time you were
2 at Philip Morris what the company lore was about Marlboro
3 Lights and how it got named, did you?
4 A. Not specifically, I don't recall. I just gave
5 you, when you asked me the previous question, what I told you
6 is the gentleman who was most associated from the meetings
7 that I went to with Philip Morris Lights, with Marlboro
8 Lights, was Mr. Landry.
9 Q. Okay, but, doctor, would the answer to my
10 question, that when you were at Philip Morris, you don't
11 recall hearing anything about the company lore about how
12 Marlboro Lights was named?
13 A. Well, that is not, it is true of Marlboro Lights,
14 specifically. It is not true with regard to the whole
15 concept of general reduction and health consciousness among
16 consumers and selecting designations that denote healthier
17 cigarettes. So if you are talking about Marlboro Lights --
18 Q. And that is what I am talking about?
19 A. Okay, that's fine.
20 Q. You don't know any of the company lore about how
21 Marlboro Lights got named, is that correct?
22 A. I know the company lore about how lights became
23 used. I do not know specifically why lights was selected
24 for that version of Marlboro, maybe that --
0025
 1 Q. Okay. But doctor, you do know, from your study
2 of tobacco, you know that light, the word light had been used
3 in tobacco advertising before Marlboro Lights? You do know
4 that?
5 A. I think I stated that, yes.
6 Q. And you knew that, I think you think that going
7 back to the 1930's or something, the word lights had been
8 used in tobacco advertising, is that right?
9 A. That is what I recall from my studies.
10 Q. Okay. And you remember the word light was used
11 in association with taste?
12 A. Well, I would call it more impact and not taste.
13 Q. And impact, you are talking about throat impact?
14 The sensation as it hits the throat? That kind of thing?
15 A. Throat and lungs, yes.
16 Q. Okay. And that is the way the word had been used
17 before Marlboro Lights came out, is that your understanding?
18 A. That is my understanding.
19 Q. And then when Marlboro Lights came out, you know,
20 doctor, that the word was used, as it was used with
21 consumers, was used directly in association with taste. You
22 know that, right?
23 A. Well, I think we are going around this, but there
24 is no taste buds in your lungs. And FTC numbers are an
0026
 1 important part of what people perceive in this. So if light
2 denotes a taste, a level of taste, in that term, then lights,
3 at say, five milligrams or four milligrams, related to a
4 light that says twelve milligrams, doesn't make a whole lot
5 of sense.
6 I thought that within a brand family, the term light
7 was intended to designate something with less tar than a
8 regular, within that same family. That is my understanding
9 of how it is used. Now, maybe I am wrong.
10 Q. Okay. Did you finish your answer, doctor?
11 A. Yes.
12 Q. Now, my only question to you was, in
13 advertisement at Philip Morris, with Marlboro Lights, the
14 word lights was used with, in association with taste, wasn't
15 it? That is my question for you.
16 A. It was used in association with taste.
17 Q. The ads specifically said lighter in taste, isn't
18 that right?
19 A. Some of them.
20 Q. Okay. Judge, I'm sorry this one is black and
21 white, but it is on the screen as well.
22 And Dr. Farone, I assume you are better on the screen
23 than you are with this?
24 A. Yes, that's fine.
0027
 1 THE COURT: Is this the same as appears on the
2 screen?
3 MR. LOMBARDI: It is. Oh, I'm sorry, Judge, the one
4 I handed you is slightly different, looks like. I think it
5 has the same -- Can I substitute for the Court?
6 THE COURT: I will look at the screen.
7 MR. LOMBARDI: I apologize, Your Honor. But anyhow,
8 doctor, this is one of the early ads for Marlboro Lights?
9 MR. TILLERY: Excuse me, before we go any further, we
10 have to have some foundation for where this ran, the source
11 of the ad. I mean, does he have some basis for this, other
12 than just throwing an ad up? I mean, we object to that.
13 MR. LOMBARDI: I'm asking the witness a question.
14 THE COURT: Well, let me hear the question first.
15 MR. LOMBARDI: Doctor, you recognize this as one of
16 the early ads for Marlboro Lights, is that correct?
17 A. Well, I have seen ads like this before.
18 Q. And you recognize it as an ad from the early
19 period of Marlboro Lights, is that right?
20 A. Only because of the 14 milligrams tar. You look
21 at the lower lefthand corner, you can blow that up a bit.
22 See, it has got --
23 THE COURT: Excuse me, can you focus that a little
24 better?
0028
 1 MR. LOMBARDI: I think that is the best focus we can
2 get for this one, Judge.
3 MR. TILLERY: Again, Your Honor, he hasn't laid an
4 appropriate foundation for the use of the document, not with
5 this witness.
6 MR. LOMBARDI: I am cross examining the witness.
7 THE COURT: Well, I know, but, you are relegating
8 your examination on this document, I think you have to --
9 MR. LOMBARDI: The witness has identified the
10 document.
11 THE COURT: He said he has seen something like
12 this. Mark your document and tell us what it is, and go
13 from there.
14 MR. LOMBARDI: Okay. And you see it says FTC Report,
15 August, '71, doctor?
16 A. Yes. But the point, I stopped before, was that
17 the only way I would recognize the time period of this is
18 from having seen right now that it said that. My eyesight,
19 I am far sighted, so I immediately saw the August, '71. So
20 that is how I know.
21 Q. Okay.
22 A. If that wasn't on there, I couldn't tell you when
23 this ad took place.
24 Q. Okay.
0029
 1 MR. TILLERY: Excuse me, on the basis of that, I
2 renew my objection. He's got to lay some foundation if he is
3 going to use this.
4 MR. LOMBARDI: Your Honor --
5 THE COURT: Well, he can do that by asking the
6 witness maybe, for, if he can identify it further. If not --
7 MR. LOMBARDI: At any rate, doctor, do you see the
8 phrase "lighter in taste". Do you see that phrase?
9 A. I do.
10 Q. That is something you recall from Marlboro
11 advertising, is that right?
12 A. Yes, I have seen that term before.
13 Q. And you also recall, it is harder to see, could
14 you blow up the little paragraph under "lighter in taste"?
15 It is a little blurry.
16 But it says, the same great quality you get with
17 famous Marlboro Red, only Lights were developed especially
18 for those who prefer the lighter taste of a low tar smoke.
19 Do you see that, doctor?
20 A. I do.
21 Q. And that is your recollection of, your
22 recollection of advertising for Marlboro Lights?
23 A. Yes. But there is always a link between lighter
24 and low in tar. Those things are synonymous.
0030
 1 Q. I was actually asking, is it recollection that in
2 the ads for Marlboro Lights, there is also a connection made
3 between lighter and lighter taste? Between light and lighter
4 taste?
5 THE COURT: Now, wait a minute, you say in the ad,
6 are you talking about this specific ad?
7 MR. LOMBARDI: I am talking about generally.
8 MR. TILLERY: Again, there is a lack of foundation.
9 Show him the ads if you want to do that.
10 THE COURT: Well, he is saying generally. If he
11 knows, he can answer.
12 A. I don't know, generally. But I do know if you
13 look at this one, as an example, and lets say this was a
14 general one, the association between tar and lighter is very
15 clear. And was there all the way through the marketing of
16 this product.
17 MR. LOMBARDI: Okay, to answer my question, doctor, I
18 asked you, do you recall that there were ads for Marlboro
19 Lights that made the association between the word light and
20 taste?
21 A. I think I will agree with that.
22 Q. Okay, thank you, doctor, thank you very much.
23 Doctor, you talked about compensation some yesterday?
24 A. Yes.
0031
 1 Q. Do you recall that? Compensation is the
2 phenomenon of when a smoker moves from one cigarette to
3 another, they try to obtain the amount of nicotine that they
4 obtained from the previous cigarette, from the subsequent
5 cigarette?
6 A. That's correct. It requires, in order to
7 understand compensation, you have to study the change that is
8 giving a smoker of one kind of cigarette, another kind. And
9 then see how they smoke that. You cannot study that simply
10 by looking at the cigarettes people smoke.
11 Q. And compensation is individual to the smoker, is
12 that right?
13 A. That's correct.
14 Q. The amount of compensation that any individual
15 smoker experiences is individual to that smoker, is that
16 right?
17 A. It is related to the level of nicotine that that
18 smoker perceives the need for.
19 Q. And that varies from smoker to smoker?
20 A. Yes. And as I said yesterday, in taking the
21 amount out to a lot of significant figures, yes, it would do
22 that. But if you categorized it to the nearest tenth of a
23 milligram, it reduces the kind of variation we are talking
24 about.
0032
 1 Q. Okay. And, doctor, just so there is no
2 confusion, I think you spent most of your time yesterday,
3 when you talk about compensation, talking about compensation
4 studies and knowledge at Philip Morris, is that right?
5 A. Yes, I did. But I am, of course, aware of the
6 other ones that have been done, for example, in support of
7 Monograph 13, or not in support of, but upon which the people
8 who wrote the areas of Monograph 13 rely on.
9 Q. Okay. But you have known about compensation, not
10 just since Monograph 13 came out, you have known about it for
11 a long time before that?
12 A. Oh, yes.
13 Q. Okay.
14 A. I think I testified previously, the idea of
15 titrating for nicotine level appears in pharmacology
16 textbooks that chemists used as early as 1977. The exact
17 idea of titrating.
18 Q. And that is the point, when you were at Philip
19 Morris, or maybe even before, doctor, were you aware of
20 literature that went back decades, talking about
21 compensation? By literature, I am talking about literature
22 outside Philip Morris?
23 A. Yes. As I said, by the time I got there, it was
24 appearing in summary textbooks.
0033
 1 Q. Okay, and that is what I am asking. In fact, you
2 recall, don't you, doctor, that there was an article by
3 somebody named Finnegan, going back to the 1940's, they
4 talked about compensation?
5 A. I don't recall the article right now, but the
6 name, it is possible, I don't recall.
7 Q. Well, you generally recall, don't you, the
8 compensation articles were around since at least the 1940's?
9 A. Yes. And articles on things like satisfaction
10 from injecting nicotine versus inhaling it, and things like
11 that.
12 Q. Okay. And then the articles continued in the
13 '50's, is that right?
14 A. Yes.
15 Q. And again, we are talking about articles, we are
16 talking about articles outside Philip Morris, and produced by
17 members of the scientific community?
18 A. Yes.
19 Q. And then there were articles about compensation
20 again in the 1960's, is that right?
21 A. Yes.
22 Q. And you are aware that there were articles out
23 there that indicated, what you were testifying to yesterday,
24 that smokers could control the amount of nicotine they got
0034
 1 from a cigarette, based on the way they smoked the cigarette,
2 is that right?
3 A. Well, in the early articles, sir, focused a lot
4 on how many cigarettes they smoked. So if we put how many
5 and how they smoked it in the same sentence, then, yes.
6 Q. Okay. Doctor, I hand you an article called the
7 Pharmalogical Basis for Tobacco and Smoking Habits, do you
8 see that?
9 A. Yes.
10 Q. It is by Armitage, Hall and Morrison? See that?
11 A. I do.
12 Q. Is this an article you are familiar with?
13 A. I think I have seen it before, yes.
14 Q. And were you aware of this article at the time
15 you were at Philip Morris?
16 A. Well, probably the first time I saw it was when I
17 was at Philip Morris.
18 Q. Okay. Can we go to the second page of the
19 article, please, and just blow up that part. This is an
20 article, incidentally, from 1968, correct, doctor?
21 A. Yes.
22 Q. Before you got to Philip Morris?
23 A. Yes.
24 Q. It is worth noting that someone smoking a
0035
 1 cigarette has literally fingertip control of how much
2 nicotine he takes into his mouth. By reducing the puff
3 volume or inhaling less frequently, he absorbs less
4 nicotine.
5 Do you see that?
6 A. Yes.
7 Q. And that was a concept that was well known in the
8 scientific community prior to the time that you got to Philip
9 Morris, is that right?
10 A. Yes. I think we showed a document where Dr.
11 Wakeham discussed, in 1961, and that would have been related
12 to work that was done before in the fifties.
13 Q. Okay. The work that you are referring to that
14 Dr. Wakeham did was referring to from the '50's, that was
15 public work, wasn't it?
16 A. I'm not sure. I think it was a combination of
17 both. With regard to scientific work in this area, I don't
18 know that the scientists at Philip Morris distinguish, you
19 know, the quality of the work and what is relevant to your,
20 the research you are doing, not the source that is
21 important.
22 Q. Okay. Doctor, I am just going to give you a few
23 examples, because there is a lot of literature out there on
24 compensation. Is that right, doctor?
0036
 1 A. Yes. This one actually is about compensation in
2 rats.
3 Q. But the quote we just read, was that about rats,
4 doctor?
5 A. No, it was about people. But I am just pointing
6 out that rats were used because they apparently tend to do
7 the same thing. Once you train them, give a consistent
8 amount of nicotine, that is why they are used as a model in
9 these studies.
10 Q. Just so there is no confusion, when we are
11 talking about fingertip control of how much nicotine he takes
12 into his mouth, we are talking about a human, right, doctor?
13 A. Right, I'm not quarreling with that. I am just
14 pointing out that the same addictive mechanisms appear to
15 work in a rat, and he mentioned cats. And it is a
16 pharmalogical property that this document is talking about.
17 Q. In any event, doctor, by the time you were at
18 Philip Morris, knowledge of compensation and the ability of
19 smokers to control a cigarette, with their fingertips,
20 essentially, or with their own behavior, was so well known
21 that it was out in the consumer literature, is that right?
22 A. By what time?
23 Q. By the time you were at Philip Morris?
24 A. '76, yes, I believe there were some articles out
0037
 1 there then.
2 Q. There was an article out in Consumer Reports,
3 specifically, doctor, is that right?
4 A. Yes.
5 Q. I will show this one to counsel, and Your Honor,
6 I have got one I can put on the screen, if that's alright.
7 The number is 4503.
8 This is an article from Consumer Reports, is that
9 right, doctor?
10 A. I believe it is. This one is the, oh, yes, okay
11 it is the Changing World of Cigarettes.
12 Q. It is hard to read, but you recall this from
13 Consumer Reports?
14 A. I recall that title, I'm not quite --
15 Q. And that was during the time you were at Philip
16 Morris?
17 A. Barely.
18 Q. Barely means it was May of 1976 and you got there
19 in April of '76, is that correct?
20 A. Correct.
21 Q. Lets look at that first highlighted part. When
22 cigarette smoke contains less nicotine than smokers are
23 accustomed to, their bodies simply contrive ways to get more
24 smoke. Do you see that?
0038
 1 A. I do.
2 Q. That is referring to the concept of compensation,
3 is that right?
4 A. Yes.
5 Q. Okay. Lets go to the next highlighted portion,
6 please.
7 The less nicotine in the smoke, in the cigarette
8 smoke, the more cigarettes were smoked per day.
9 That is referring to the concept of compensation?
10 A. Right. That is the one type we talked about,
11 increasing the number of units compensation.
12 Q. We are going to talk about that, I'm sorry, go
13 ahead.
14 A. I think that is what Dr. Wakeham is referring to
15 in '61.
16 Q. Okay. Next one, please. But nicotine intake is
17 also increased by other adjustments and smoking patterns.
18 That is talking about other methods of
19 compensating, right, doctor?
20 A. That's correct.
21 Q. Smoker's often smoke a low nicotine cigarette to
22 a shorter butt, correct?
23 A. Yes.
24 Q. Okay, next one, please.
0039
 1 Some smokers also increase the size of each puff,
2 thus increasing the nicotine dose per puff?
3 You see that, doctor?
4 A. I do.
5 Q. Another form of compensation that you were
6 talking about yesterday?
7 A. Yes.
8 Q. Some shorten the interval between puffs?
9 A. Yes.
10 Q. That is another form of compensation you were
11 talking about yesterday?
12 A. That's correct.
13 Q. And then they say in the next paragraph, there
14 are also other ways to compensate for a drop of nicotine, by
15 drawing the smoke deeper into the lungs, for example, or by
16 holding it there longer before exhaling.
17 Other forms of compensation, Dr. Farone?
18 A. Yes.
19 Q. Okay. And then the article says, the Consumer
20 Reports article says, in short, human smokers are not smoking
21 machines. They do not necessarily smoke a low nicotine
22 cigarette in the same way they smoke a high nicotine
23 cigarette, nor do they smoke the same number of cigarettes
24 when they switch from a low nicotine brand to a high nicotine
0040
 1 brand.
2 Do you see that, doctor?
3 A. I do.
4 Q. And that was information that was out, not only
5 in the scientific literature, but out in the public, when you
6 were at Philip Morris, is that right?
7 A. Yes.
8 Q. Now, you talked about some compensation studies
9 at Philip Morris when you were there, is that right? And
10 before you were there?
11 A. Yes.
12 Q. And you put a few studies in front of the Court,
13 and I want to go back to a couple of those.
14 You didn't mean to imply yesterday that you were
15 giving the Court the full range of compensation work that had
16 been done? I just want to confirm that?
17 A. No, no implication at all. There was many, many
18 studies, some of which I participated in, that I think --
19 Some of them were not even documented.
20 Q. And you showed some studies on compensation from
21 before the time you got to the company, is that right?
22 A. Yes.
23 Q. And there was one by Schori, S-C-H-O-R-I, and
24 Dunn --
0041
 1 A. Yes.
2 Q. Do you remember that?
3 A. Yes.
4 Q. And that later became a publication, is that
5 correct, or prepared for publication, I guess is the way you
6 put it. Is that right?
7 A. Parts of that, if you remember the testimony,
8 there are slightly different discussions, but part of the
9 same research work.
10 Q. And Plaintiff's #8 was that document, is that
11 right?
12 A. I don't recall the number.
13 Q. Let me put it up on the screen. I will zoom in,
14 doctor, and show you the tagged end. My copy of Plaintiff's
15 Exhibit #8.
16 A. Yes.
17 Q. And this is the Schori and Dunn article, is that
18 right? Or actually, I'm sorry, should be abstract, I think
19 is what you called it?
20 A. Yes.
21 Q. And the portion you noted for the Court is right
22 there, highlighted, is that right?
23 A. I think I discussed more of it, but that's fine,
24 yes.
0042
 1 Q. Okay. That is one of the portions?
2 A. No problem.
3 Q. Okay. And it was talking about the cigarette
4 consumption rate went up or down depending on the nicotine
5 delivery of the cigarettes?
6 A. I think actually I focused on the daily quota,
7 but that's fine.
8 Q. If you want to read it, you can read it, doctor.
9 A. Well, I read it, I think I read it into the
10 record yesterday.
11 Q. Tell me when you are ready, doctor.
12 A. I'm fine. Do you want to ask me a question?
13 Q. I don't think you went to the next page of the
14 document, did you?
15 A. I think I went there.
16 Q. You didn't read it, though, to the Court, did
17 you?
18 A. I don't believe so.
19 Q. Because the next page of the document has some
20 other information about how the scientists that did this
21 experiment reacted to the experiment, is that right?
22 A. How the scientist who did it, no, I think it
23 talks about the people.
24 Q. Okay. It had some more information on the
0043
 1 conclusions the authors of this report drew from the study
2 that they did, is that right?
3 A. Well, there is more information about
4 conclusions, but I think it is consistent with the, what I
5 read. But we can go into it.
6 Q. Alright. Just so that we are clear, this is what
7 I put up on the screen, is the second page of the report, is
8 that right?
9 A. Yes.
10 Q. And it says, this suggests an interesting
11 possibility. The smokers may have smoked less, not because
12 of the increased nicotine. That is the nicotine intake
13 hypothesis, right?
14 A. Yes.
15 Q. But rather because of the decreased acceptability
16 associated with increased nicotine. And they call that the
17 acceptability hypothesis.
18 A. Yes.
19 Q. Do you see that?
20 A. Yes, uh-huh.
21 Q. Thus while the data do support the hypothesis of
22 a nicotine intake quota, they also provide support for an
23 equally plausible alternative hypothesis.
24 Do you see that?
0044
 1 A. I do.
2 Q. That is what the authors of the paper said, is
3 that right?
4 A. Yes. And this was intended for outside
5 publication, whereas that would be useful to Philip Morris in
6 attempts to deflect the daily quota discussion, right?
7 Because if you are going to publish this outside, it throws
8 into question, or attempts to, even though the data, even
9 though before that they talk about daily quota, and that was
10 the generally accepted hypothesis at the time, is this not
11 trying to shed some doubt on the hypothesis?
12 Q. Well, this document, just to be clear, doctor,
13 you testified yesterday, was from 1972, is that right?
14 A. Yes.
15 Q. That was before you got to Philip Morris?
16 A. Right.
17 Q. You weren't involved in drafting the document?
18 A. That's correct.
19 Q. You weren't involved in the experiments or
20 studies that underlie the document?
21 A. That's correct.
22 Q. And what the document then goes on to say,
23 doctor, is one should exercise caution in generalizing from
24 their data.
0045
 1 Do you see that?
2 A. Yes.
3 Q. That's good advice generally for a scientist,
4 isn't it, doctor?
5 A. I'm not sure I understand the question.
6 Q. Well, it is good advice to exercise caution
7 before you generalize from the data of one side, isn't that
8 right?
9 A. Yes. One of these authors had previously
10 published, but there is nothing wrong with that statement, if
11 that is the question.
12 Q. What I am asking right now is, you agree, when
13 you are looking at one study, you should exercise caution in
14 generalizing from it? You agree with that, don't you?
15 A. As a general scientific principle, I don't see
16 any problem with that.
17 Q. Okay. Doctor, I actually wanted to go back to
18 the first page of the document, where we are talking about
19 cigarette consumption rates again.
20 The form of compensation that is talked about in this
21 study is increasing number of cigarettes you smoke per day,
22 is that right?
23 A. And I think I noticed that specifically it is
24 different than the form of compensation that we are talking
0046
 1 about between Marlboro Lights and Marlboro.
2 Q. Okay. And one form of compensation, another form
3 of compensation is compensation in the way you smoke an
4 individual cigarette, is that right, generally?
5 A. Well, I would add in the way an individual smokes
6 an individual cigarette.
7 Q. Okay, because it varies from individual to
8 individual?
9 A. Yes.
10 Q. Okay. But in this study we are talking just
11 about increased cigarette consumption rates, is that right?
12 A. Yes. And this is, you know before the advent of
13 many cigarettes with filters, we are talking about putting
14 filters on them, reducing intake that way. Very few
15 cigarettes, this is only a year after Marlboro Lights, for
16 example, ventilated cigarettes were not as common as they are
17 now. And that form of compensation was not as big a part of
18 what was happening. Up until 1970, as indicated in the other
19 articles, because it wasn't so easy to change simply by
20 sucking more. You could do it, I am not arguing that. It
21 showed up a lot. But you would also have to increase the
22 number. And this talks about that.
23 Q. Well, actually, you recall, doctor, that this
24 study involved a cigarette with a tar level lower than
0047
 1 Marlboro Lights, correct?
2 A. Not -- The tar, it has nothing to do -- It is
3 nicotine levels. And the nicotine levels are 1.3, 1.8 and
4 2.2 in these cigarettes. And there is, and I think if you
5 want to put that ad back up, we can see what the nicotine
6 level was in Marlboro Lights at that time.
7 Q. The tar level of the lowest tar cigarette that
8 was being tested here was 9.7, is that right?
9 A. Yes, but for compensation, what I'm saying, what
10 is important, are the three levels, 1.3, 1.8 and 2.2.
11 Q. And, doctor, I think you were starting to allude
12 to this before, but if cigarette consumption increases or the
13 way compensation is occurring, that means that smokers need
14 to increase the number of cigarettes they smoke in order to
15 get the nicotine they need. That is the theory, is that
16 right?
17 A. Well, we have just gone from experimentally
18 observed evidence to theories.
19 Are we saying that that is not what happened?
20 Q. No, I am asking you, doctor, when you are talking
21 about cigarette consumption rates increasing, as a form of
22 compensation --
23 A. Yes.
24 Q. The belief is on the part, your belief is that
0048
 1 that happens because the smoker wants to get more nicotine,
2 is that right? They increase their consumption of cigarettes
3 to get more nicotine?
4 A. The literature out there at this time was that
5 when nicotine levels were reduced, people increased their
6 use, consumption of cigarettes. They smoked more
7 cigarettes. That is what this is all about.
8 Q. Okay.
9 A. I don't see any evidence that says the opposite.
10 Q. Okay. I didn't suggest there was, doctor.
11 A. Okay.
12 Q. I just was asking you that question. And then my
13 question is, if the cigarette consumption levels increase,
14 then the cigarettes must not be giving the consumer what
15 nicotine levels they want, is that right?
16 A. Yes, I can agree with that.
17 Q. Okay. Now, you also showed the Court another
18 document, and I do not have Plaintiffs #4, it is the Goodman,
19 September, 1975, document. You showed it to me, I think it
20 was part of a group. But I can put up another version of
21 it.
22 Okay, doctor, you remember talking about this
23 document yesterday?
24 A. Yes, I do.
0049
 1 Q. This was a study that was done by Barbro Goodman,
2 is that right?
3 A. Yes.
4 Q. Okay. And this was from September 17th of 1975,
5 is that right?
6 A. That's correct.
7 Q. And this was a study that was performed before
8 you got to Philip Morris, is that right?
9 A. Yes, prior year.
10 Q. And you talked about, I think you talked about
11 the conclusion of the document, is that right?
12 A. Well, I think I talked about some statements on
13 page three, and also, yes, I think so, conclusion.
14 Q. Okay, lets go to 4490.31, conclusion. And I
15 think the conclusion that you read is up here, doctor.
16 In affect, the Marlboro 85 smokers in this study did
17 not achieve any reduction in smoke intake by smoking a
18 cigarette, Marlboro Lights, normally considered lower in
19 delivery. Conversely, the Marlboro Lights smokers did not
20 increase their smoke intake when they switched to the regular
21 delivery cigarette. Is that right?
22 A. That's right.
23 Q. Is that the conclusion that you read to the
24 Court?
0050
 1 A. Right.
2 Q. Now, you didn't go into any detail yesterday,
3 about the details of this study, did you doctor?
4 A. I did not.
5 Q. You didn't talk about the size of the study, is
6 that right?
7 A. The size of the study?
8 Q. Yes?
9 A. You mean number of people involved?
10 Q. Yes?
11 A. No, I did not.
12 Q. And you didn't talk about the details of the
13 results beyond reading this conclusion, is that right?
14 A. That's correct.
15 Q. Your Honor, I apolgize, may I have a moment?
16 THE COURT: Yes.
17 (Short pause in proceedings.)
18 MR. LOMBARDI: Your Honor, I will show this to
19 counsel, we can get another copy over the break. And I have
20 one I can put up on the screen, but I will show it to counsel
21 before I show it to the witness.
22 THE COURT: Do you want to identify it for the
23 record?
24 MR. LOMBARDI: I will as soon as counsel has had a
0051
 1 chance to review it, Your Honor.
2 MR. LOMBARDI: Your Honor, the document I'm going to
3 put on the screen is a January 3rd, 1975, memo from Barbro
4 Goodman to Leo M. Meyer.
5 THE COURT: Do you have a document number?
6 MR. LOMBARDI: It is Exhibit #6516, Defendant's
7 Exhibit #6516.
8 Okay, doctor, you have seen that document before?
9 A. Oh, was this in the Plaintiff's Group that was
10 submitted yesterday?
11 Q. I'm not sure. Why don't you go ahead and read
12 it?
13 A. Group #19, it is #19-B.
14 Q. Okay. And this is a document that goes with the
15 September 17th, 1975, document, is that right?
16 A. Well, this is a predecessor memo on the same
17 subject.
18 Q. And the September 17th, 1975, document was
19 discussing and specifically made reference to the January
20 3rd, '75, document that we now have up on the screen, is that
21 right?
22 A. That's correct.
23 Q. Okay. And the document from January 3rd, 1975,
24 explains the research that was being done in more detail than
0052
 1 we went over yesterday, is that correct?
2 A. It is summarized in the September 17th, memo. It
3 assumes that the person reading that had some familiarity
4 with the smoke simulator program, which they did, of course.
5 Q. And lets look at the first highlighted portion.
6 We are able to find four smokers who are willing to
7 participate and switch to another brand for two weeks.
8 Those are four smokers who smoked Marlboro Lights as
9 their regular brand, is that right?
10 A. Yes.
11 Q. Five smokers who normally smoke Marlboro 85's
12 were then selected for being representative of the range of
13 Marlboro 85 smokers, right?
14 A. Yes.
15 Q. So they were going to participate in this study,
16 is that right?
17 A. Right.
18 Q. So is that the total of the people in the study?
19 A. I believe there were nine total people, which
20 four and five adds up to nine, that works out about right.
21 Q. That's how I add it, too, doctor. And then you
22 go to the next highlighted portion.
23 Each of the nine subjects first smoked their own
24 brand for two weeks.
0053
 1 Do you see that?
2 A. Yes.
3 Q. During this time period, they smoked sets of
4 three cigarettes through a recording unit at three different
5 times.
6 A. Yes.
7 Q. Okay, then lets go to the next page.
8 Individual analysis, and what this refers to,
9 actually if you could take that away for just a second, above
10 that it says group analysis, correct, doctor?
11 A. It does.
12 Q. And that was an analysis of the smoking trends as
13 applied to the group as a whole, is that correct?
14 A. Yes. Statistically, more information in the
15 group than there is in an individual.
16 Q. Okay. And then we go down to individual
17 analysis. And it says, within the two groups of smokers,
18 there were rather large variations in volume from cigarette
19 to cigarette, as well as from day to day.
20 Do you see that?
21 A. Yes.
22 Q. Therefore, the data was analyzed for each
23 individual smoker, rather than for the entire group, is that
24 right?
0054
 1 A. In the individual analysis?
2 Q. That's correct?
3 A. That is what that means.
4 Q. So what we are talking about here, when they did
5 this analysis of the nine smokers, and some of the smokers
6 are switching from higher tar to lower tar, is that right,
7 doctor?
8 A. Well, they had the Marlboro Lights smokers smoke
9 Marlboro Reds, yes.
10 Q. So some of them were going from Marlboro Regulars
11 down to Marlboro Lights?
12 A. And some the other way.
13 Q. And they said that within the two groups of
14 smokers, that there were rather large variations in volume,
15 correct?
16 A. Yes.
17 Q. So there were individual differences in the way
18 these people were smoking when they went from Marlboro Reds
19 to Marlboro Lights, is that right?
20 A. Exactly as one would anticipate, yes.
21 Q. Okay. Then if you go to the next, doctor, this
22 is, I think, the portion that was also referenced in the
23 later memo.
24 These are the results for the Marlboro Reds smokers
0055
 1 who switched down to Marlboro Lights, is that correct? On
2 the page, if you are looking at it, doctor, it says --
3 A. I was looking at what you have highlighted.
4 Q. That is at the bottom of the page. It is under
5 Marlboro 85 smokers. Do you see that?
6 A. Yes, this is the experiment where they gave the
7 Marlboro 85 smokers the Marlboro Lights, and they took larger
8 puffs.
9 Q. Okay, so Marlboro 85, just so the record is
10 clear, those are what we are, what we call the Marlboro
11 Regular smokers?
12 A. That's right.
13 Q. And they gave them Marlboro Lights and saw what
14 happened, okay. And so on this study, what they said is
15 four of the five smokers increased their volume per puff when
16 they smoked the lower tar cigarette.
17 Do you see that?
18 A. Yes.
19 Q. They also decreased their puff count per
20 cigarette. So in terms of total volume per cigarette, only
21 three of the five smokers had a larger smoke intake on
22 Marlboro Lights than on Marlboro 85's, correct?
23 A. That's right.
24 Q. So in this study, where we are talking about
0056
 1 Marlboro Regular smokers switching down to the Marlboro
2 Lights, the first thing is there are five smokers that are in
3 question, is that right?
4 A. Well, these experiments are difficult to do.
5 Yes, they used five smokers, they had to hook them up to
6 these machines, that is why there's five smokers.
7 Q. Incidentally, some scientists today, in terms of
8 measuring compensation, they say hooking somebody up to a
9 machine is the wrong way to measure compensation, is that
10 right?
11 A. It changes the result, there is no question about
12 that. That is why the most preferred methods are
13 observation, which we did with like video cameras, and things
14 of that sort.
15 And much of the scientific community relies on
16 studies where you actually measure the metabolites of
17 nicotine in the blood after different smoking machines. So,
18 yes, they are difficult to do, but Philip Morris wanted to do
19 these. We wanted to do these to understand the range of
20 variations for an individual smoker. That way we can program
21 the smoke machine to provide results for any type of smoker.
22 Once you know what nicotine level the smoker wants,
23 whether it is a low level or high level, you can program the
24 machine for a given cigarette, to give you that level of
0057
 1 nicotine delivery. And you can adjust the puff parameters to
2 see what happens in terms of the delivery of tar under the
3 various types of consumption.
4 Q. So we have five smokers here, total, that are
5 going from Marlboro Regulars to Marlboro Lights, is that
6 right?
7 A. Yes.
8 Q. Three of the five were increasing the amount of
9 tar and nicotine they took in, is that right?
10 A. Yes.
11 Q. Two of them did not, is that right?
12 A. Yes.
13 Q. Two of the smokers increased the number of
14 cigarettes they smoked, is that right?
15 A. Yes.
16 Q. And two decreased?
17 A. Yes.
18 Q. So when you take, you take the bottom line of the
19 study, when you look at it, it is, three compensated, two
20 didn't, is that right?
21 A. I guess I am getting confused. This study wasn't
22 done to prove compensation.
23 Q. Well, maybe I misunderstood your testimony from
24 yesterday, doctor. But anyway, the bottom line of the study
0058
 1 is, we see in the memo, January 3rd, 1975, that is up on the
2 screen right now, is that there were mixed results as to the
3 five smokers that switched from Marlboro Regulars to Marlboro
4 Lights, is that right?
5 A. In the September 17th, they say, you know, they
6 analyze this statistically. But the point I want to make
7 sure we don't lose here, is that we knew compensation
8 occurred, we knew how it occurred, we understand that by the
9 time we get to 1975, from all the previous work, what this
10 work is aimed at is developing a machine that we can use, so
11 that we can put in compensatory profiles and see how it
12 delivers tar. This wasn't done by Philip Morris to attempt
13 to refute or to accept, the compensation idea was already
14 accepted by this point. I told you that by '77, it is in
15 textbooks.
16 Okay, so the purpose of this was to develop these
17 tapes of how individual people smoked, so that you could put
18 them in the machine, so that you could twiddle the knobs on
19 the machine and see how much tar people got under the
20 different smoking profiles.
21 And they wanted to have profiles, they are called
22 command tapes, if you look at the bottom of September 17th,
23 1975, memo. They have command tapes based on different
24 smokers. That allows them to get an idea of how to program
0059
 1 the machine. It is not to study what is going on in
2 humans. I think you are pointing out you should use a larger
3 group of people.
4 Q. Well, maybe I misunderstood you, because
5 yesterday what you read to the Court, the only thing you read
6 to the Court was the part that said that smokers in this
7 study, Marlboro 85 smokers in this study, did not achieve any
8 reductions in smoking by smoking Marlboro Lights, normally
9 considered lower in delivery. That is what you told the
10 Court yesterday.
11 A. That's true, they didn't.
12 Q. And you don't have any problem with me going back
13 and pointing out that there was a study that involved five
14 smokers who went from Marlboro Regulars, and only three of
15 the five got more smoke than you would have thought from
16 Marlboro Lights? You don't have a problem with that?
17 A. Absolutely not.
18 Q. And the Court should know that in evaluating this
19 study, is that right?
20 A. Yes. All I was trying to do is point out that
21 the purpose of the study was to be able to program a
22 computer.
23 Q. There's another part of the study here. Let me
24 make sure there is not another point on that page.
0060
 1 If you could go to the next highlighted portion, it
2 is under general observations. It says, because of the
3 variations in a smoker's puffing profile from cigarette to
4 cigarette, it was not possible to establish a quote, normal,
5 close quote, smoking pattern for the individual smoker.
6 Do you see that?
7 A. I do.
8 Q. Individual variations made it impossible to
9 establish a normal smoking pattern with these smokers,
10 including those who were going from Marlboro Regulars to
11 Marlboro Lights, is that correct?
12 A. That's correct.
13 Q. That is consistent with your understanding, is
14 that right?
15 A. Consistent with my understanding of compensation.
16 Q. Okay. Lets go back to the September 17th, 1975,
17 memo, for a moment. There's something else that came out of
18 this study, doctor. You can also get reports, or they also
19 reported results for the tar levels of Marlboro --
20 THE COURT: Just a second, when you said this study,
21 are you talking about the same study now?
22 MR. LOMBARDI: Yes, Your Honor. It is the same
23 study, it is the subject of two memo's. And I am just moving
24 back to the memo that the doctor referred to yesterday.
0061
 1 Same study, right, Doctor Farone?
2 A. Yes. I think we referred to both of them.
3 MR. LOMBARDI: Alright.
4 MR. TILLERY: Which document are you on?
5 MR. LOMBARDI: I am on the September 17th, 1975,
6 study.
7 THE COURT: Well, I want, he made reference to the
8 two documents, and that is what I was afraid of. Specify
9 which one.
10 MR. LOMBARDI: I will, I will, Your Honor.
11 THE COURT: In your testimony.
12 MR. LOMBARDI: We are now referring to the document
13 that was a Plaintiff's Exhibit yesterday, Barbro Goodman's
14 letter to Leo M. Meyer, dated September 17th, 1975. And you
15 have that today?
16 A. Right. So we know, that's #19-K and the other
17 was #19-B.
18 Q. That's fine. #19-K is the September document, is
19 that right?
20 A. Yes.
21 Q. You can also draw conclusions, they also, the
22 people that did this study, before you got to Philip Morris,
23 they drew conclusions about the tar levels that Marlboro 85
24 smokers got as a group, and Marlboro Light smokers got as a
0062
 1 group, is that right?
2 A. Yes.
3 Q. And you can see those results at Table Two, is
4 that right?
5 A. Yes.
6 Q. And that is, I have the table up there, Table
7 Two?
8 A. That is correct.
9 Q. If you look down at the bottom where it explains,
10 the note explains, tape #40 contains parameter data for
11 Marlboro 85 smokers as they smoked Marlboro 85's.
12 Do you see that?
13 A. Yes.
14 Q. And then tape #34 contains parameter data for
15 Marlboro Lights smokers, as they smoked Marlboro Lights.
16 Do you see that?
17 A. Yes.
18 Q. Okay. And then if you go back up to the chart,
19 if you look at tape #40, actually, if you could, tape #40,
20 that is the Marlboro 85 smokers, as they smoked Marlboro
21 85's, is that right?
22 A. Yes, tape #40 is Marlboro 85 smokers.
23 Q. They got 21.7 milligrams, is that right?
24 A. On average, yes.
0063
 1 Q. And the tape #34 shows the Marlboro Light smokers
2 as they smoked Marlboro Lights, and they got 15.2, is that
3 right?
4 A. Yes, the Marlboro Lights, yes, because that is
5 their normal cigarette. If you look, the next column, the
6 nicotine level, you see that within the columns they are very
7 close together. In other words, this is an exact point that
8 you see under the forty versus twenty-seven, they are both
9 getting 1.4 milligrams of nicotine.
10 The seventeen versus thirty-nine, 1.4 compared to
11 1.5. The air gets a little higher, so you go down lower, 1.1
12 compared to .9.
13 Q. Okay, but it shows, it shows that the Marlboro
14 85, or the Marlboro Regular smokers, as a group, got more tar
15 than the Marlboro Lights smokers, as a group. That is what
16 it shows, isn't that right?
17 A. Yes. If you look at the very bottom, says puff
18 by puff, the machine profile would have given you 1.4 for the
19 Marlboro Red and 1.0 for the Marlboro Light. And you can see
20 that everybody got at least the 1.0 from the Marlboro
21 Light.
22 But in the middle ranges, the upper two, those people
23 smoking the Marlboro Lights got the amount of nicotine that
24 they would have gotten from the Marlboro Red. It is, you
0064
 1 are focusing on the tar, and I am focusing on the point of
2 compensation.
3 Q. Okay, but I am focusing on the tar, because
4 according to this test, as smoked generally by Marlboro
5 Lights smokers, Marlboro Lights smokers got less tar than the
6 Marlboro Regular smokers, is that correct?
7 A. I don't, if you are saying that Marlboro Light
8 smokers, when they are titrating for their level of nicotine,
9 with Marlboro Lights, get less tar than Marlboro Red smokers
10 titrating for their level of nicotine, I, at this time, with
11 these cigarettes, the answer is yes. But they are getting
12 the same level of tar when they switch from one to the other,
13 right, that is what this says.
14 Q. This is what you would call a cross-sectional
15 study, isn't it?
16 A. Yes.
17 Q. When you look at it this way?
18 A. That is not what we are talking about with what
19 happens with compensation. When we are switching from one
20 product to another.
21 Q. You don't think a cross-sectional study is a
22 valid way of doing it, doctor?
23 A. Well, a valid way of doing what?
24 Q. Of talking about studying compensation, say?
0065
 1 A. No. It is a valid way of studying the nicotine
2 level that people want. It is a valid way of studying how
3 people smoke within that range of nicotine they want. But it
4 is not a valid way of finding out what happens when you give,
5 for example, a Marlboro Red smoker a Marlboro Light.
6 Q. Okay. Do you know who Neal Benowitz is?
7 A. Of course.
8 Q. Okay. He wrote a Chapter in the Monograph #13
9 is that right?
10 A. Yes, he did.
11 Q. On compensation?
12 A. Yes.
13 Q. Do you know what he says about cross-sectional
14 studies?
15 A. They are useful. I understand they are useful.
16 The question we are talking about is determining the nicotine
17 levels. They are very useful for determining various levels
18 of the nicotine that different types of smokers wish to
19 obtain.
20 Q. And this cross-section of study shows that the
21 Marlboro Red smokers got more tar?
22 A. And that is because, as I tried to point out, the
23 Marlboro Red smokers are, the people smoking Marlboro Red,
24 they require a higher level of nicotine. So it is not a
0066
 1 compensation.
2 Q. Now, Barbro Goodman did other studies than just
3 that one when she was at Philip Morris?
4 A. Yes. There is a whole series during the period
5 that I there was.
6 Q. And the truth is, doctor, that Marlboro, that in
7 Barbro Goodman's studies, over the course of time, well,
8 strike the question.
9 Study we just looked at, that was the subject of the
10 January, '75 and September, '75 memo's, that study, was that
11 the first study that Barbro Goodman performed when she was at
12 Philip Morris?
13 A. I think she was involved, I think the early ones,
14 and Mike Kelly did some in between. And I think she was
15 involved in those. But at some point, maybe '73, '74, as I
16 recall, she took over the project.
17 Q. Okay. And she did a number of studies from that
18 point on, is that right?
19 A. That's correct.
20 Q. And I think you said you heard about these
21 studies, I forget which meeting, the Friday meeting,
22 something like that.
23 Q. Well, there are studies that are done during the
24 period of time, which there is like '76, '77, I attended
0067
 1 those meetings. And of course, like all scientific meetings,
2 you discuss the previous work. So it is a cumulative
3 phenomenon.
4 So you refer back to the old work and read it and
5 talk about it.
6 Q. Okay. And one of studies, well, she did other
7 studies that involved Marlboro Regulars and Marlboro Lights,
8 didn't she?
9 A. And all kinds of other cigarettes, yes.
10 Q. And she did studies to determine the tar/nicotine
11 intake of the individual smoker, based on this smoke
12 simulator machine when they switch brands, is that right?
13 A. Well, I characterize it differently. That is a
14 result that comes out of studies that she did. But I point
15 out, the purpose of studies was to obtain these command
16 tapes, so that cigarette designs could be analyzed to see the
17 range of tar and nicotine people would get with different
18 nicotine requirements.
19 Q. Okay, again, but that wasn't the purpose that you
20 talked about yesterday, right, doctor?
21 A. I hope, yesterday, I tried to get across the
22 point that the basis of this is the nicotine requirement that
23 people have.
24 Q. Okay. But the only thing you put up was the
0068
 1 conclusion that showed something about Marlboro Regular
2 smokers who switched to Marlboro Lights, is that right?
3 A. I don't think that was the only, we did put this
4 one up, but that wasn't the only thing we discussed, I am
5 sure.
6 Q. But with respect to Barbro Goodman, you know that
7 she did more studies that just that study, is that right?
8 A. Yes, of course. She did many, many studies.
9 Q. And she did other studies that involved Marlboro
10 Regulars and Marlboro Lights?
11 A. She did.
12 Q. Your Honor, I am handing the witness and the
13 Court what is marked as 6505. And that one says Smoking
14 Parameters For R & D Personnel on the cover?
15 A. Yes.
16 Q. It is dated September 23rd, 1976?
17 A. Yes.
18 Q. Okay. You are not copied on this document, are
19 you?
20 A. No, but I did receive a copy.
21 Q. Okay. Did you typically receive copies of
22 documents you weren't copied on?
23 A. Well, this is an initial year before I was a
24 director, and Dr. Sullivan, who I reported to, would send me
0069
 1 his copies of all these documents for me to give opinions on.
2 Q. Okay, and we put it up on screen. Now, doctor,
3 you can see it is a September 23rd, 1976, Smoker Parameters
4 For R & D Personnel Study, is that right?
5 A. Yes.
6 Q. And it was written by Barbro Goodman?
7 A. Yes.
8 Q. And this study shows some comparison on tar
9 intakes for Marlboro Regular and Marlboro Light smokers, is
10 that right?
11 A. This is another cross-sectional study.
12 Q. Okay. Please go to Table One, which, doctor is
13 after page six of the study. And I have, do you see this
14 chart, Table One?
15 THE COURT: Wait a minute.
16 MR. LOMBARDI: I'm sorry, Judge.
17 THE COURT: Okay, table, alright, this is a
18 cross-sectional study?
19 MR. LOMBARDI: Correct.
20 THE COURT: Okay.
21 MR. LOMBARDI: Well, this part specifically is not.
22 But we will get to that.
23 THE COURT: Oh, this is not?
24 MR. LOMBARDI: I will have the doctor explain to
0070
 1 you. This table, actually, doctor, this is just setting out
2 the general characteristics of the cigarettes that are being
3 studied, is that right?
4 A. That's right. This is a cross-sectional study.
5 But this part of it only deals with what the machine
6 measures. It tells you the butt length, the FTC tars, FTC
7 nicotine, puffs per cigarette, etc.
8 Q. And that is just a standard specification type
9 data that you would always include in reports like this when
10 you are studying the cigarettes?
11 A. Well, it should be included, but it isn't always
12 included.
13 Q. Okay, well, it is typically included in Barbro
14 Goodman's reports and I have just highlighted --
15 A. Okay, so page one --
16 Q. And I just want to show you, we have got Marlboro
17 85's highlighted there. Those are what we have been calling
18 Marlboro Regulars, right? If you look, are you finding what
19 I am talking about?
20 A. Oh, what do you mean, we call it regular?
21 Q. What we have been calling today Marlboro Reds or
22 Marlboro Regulars.
23 A. Nothing wrong with regular, go ahead.
24 Q. Marlboro 85, FTC tar, 17.9, correct?
0071
 1 A. Yes.
2 Q. And it shows Marlboro Lights a little farther
3 down at 12.6 of FTC tar, is that right?
4 A. 17.9 is the second column of Table One, is that
5 what we are referring to?
6 Q. Yes.
7 A. And Marlboro Lights would be way over to the
8 right?
9 Q. Yes?
10 A. 12.6.
11 Q. 12.6, that shows the FTC tar levels of Marlboro
12 85's and Marlboro Lights, is that correct?
13 A. That's correct.
14 Q. Then you go back to Table Five, which is several
15 pages back from there, doctor. That is where we show the
16 results of the human smoker simulator data, is that right?
17 A. Okay, Table Five, I have Table Five.
18 Q. Okay. And that is the results of the human
19 smokers simulator data, is that right?
20 A. That's correct.
21 Q. Okay. And this is a cross-sectional study, right
22 doctor?
23 A. Yes.
24 Q. And it shows that the people who were smoking
0072
 1 Marlboro 85's got more tar than the people who were smoking
2 Marlboro Lights, is that right?
3 A. Well, no. Well, Marlboro, lets looks, Marlboro
4 85 males, okay, the nicotine number is 1.66. They are
5 titrating to a higher nicotine level. If you compare the
6 Marlboro 85 females, with the Marlboro 100, which is down a
7 little bit further, the Marlboro Lights, you will see that
8 they are all getting 1.27 milligrams, they are titrating to
9 the same level.
10 Q. Well, actually, I think it says 1.66 milligrams
11 of nicotine for the Marlboro 85 males. But lets talk the tar
12 numbers.
13 Marlboro 85 males have 27.1 milligrams of tar, is
14 that right, doctor?
15 A. The which?
16 Q. Marlboro 85 males?
17 A. Yes, the males with the higher nicotine intake
18 are getting the higher tar intake, I agree.
19 Q. Okay. The Marlboro 85 females, are getting 21.6
20 milligrams of tar?
21 A. 21.6, that's correct.
22 Q. And the Marlboro Light smokers are getting 17.8
23 milligrams, is that right?
24 A. That's correct. And the Marlboro 100 smokers,
0073
 1 and 100 is a longer cigarette than the 85, they are actually
2 getting less than either the males or the females on the 85
3 Regular, because they are smoking to the 1.27.
4 This is a cross-section. You haven't given those
5 smokers the other cigarettes and see what happens. But it is
6 interesting to see that the Marlboro Lights people appear to
7 have same the nicotine requirement as the Marlboro Reds
8 people, 1.28.
9 Q. And the Marlboro Lights smokers are getting less
10 tar than the Marlboro 85's?
11 A. In the cross-sectional study, right.
12 Q. You keep saying, emphasizing the cross-sectional
13 study, but you do understand that cross-sectional studies are
14 used in Monograph 13, is that right?
15 A. I understand the reference to cross-sectional
16 studies and comparitive studies.
17 Q. And, doctor, Marlboro Lights and Marlboro
18 Regulars were also studied in the context of a form of
19 compensation known as vent blocking, is that right?
20 A. Yes, they were.
21 Q. And some studies were done inside Philip Morris,
22 that someone blocked a certain number of the vent holes, you
23 would see how much tar and nicotine would be delivered, is
24 that right?
0074
 1 A. I think that, I wouldn't exactly put it that
2 way. The premise was that when people smoke, they have the
3 opportunity to block vent holes.
4 So what was being done at Philip Morris, when I was
5 there, is try to determine what the delivery yield would be
6 if in fact they accidentally or deliberately block them a
7 certain way. With your lips, with your fingers.
8 Q. And you did that kind of study at Philip Morris,
9 Barbro Goodman did that kind of study at Philip Morris, and
10 compared the delivery of Marlboro Reds and Marlboro Lights,
11 and other brands as well?
12 A. Right, smoked under different profiles, yes.
13 Q. Okay. I am handing the witness what has been
14 marked as 6512, Your Honor. And this is an October 21st,
15 1982, memo, from Barbro Goodman to Mr. L.F. Meyer.
16 And this is the type of study we are just talking
17 about, when you make some assumption about vent hole
18 blocking, and then measure the tar delivery, is that right,
19 doctor?
20 A. I'm not quite sure what you mean by that. The
21 primary information was observed in humans, and noticing that
22 they did in fact block the vent holes. That was one of the
23 mechanisms of compensation.
24 Okay, let us take that information, now that we know
0075
 1 it happens, and see if we can use our knowledge about the way
2 people smoke on this machine, to get some idea of how that
3 changes the tar and nicotine levels.
4 Q. Okay. And in this study, if you can highlight
5 that first line of the table, please.
6 That is the Marlboro King size smokers, that shows
7 FTC of 16.6, I'm sorry, 16.6, and then model tar of 16.4. Do
8 you see that?
9 A. Those are FTC numbers, yes.
10 Q. Okay, and the model --
11 THE COURT: Excuse me a second, the last column, is
12 that a FTC representation?
13 A. On the far right?
14 THE COURT: On the far right?
15 A. No, that is the model.
16 THE COURT: That is the model.
17 MR. LOMBARDI: That is after you input smoke, you
18 input data about the way people smoke into the machine, and
19 you have the machine smoke it that way, is that right? And
20 then you get a number, is that right?
21 A. I don't, is that what these, that is the
22 Simulator APL model. We worked on that, yes.
23 Q. And in any event, doctor, it shows, under the
24 model, 16.4 for Marlboro King size, is that right?
0076
 1 A. Yes. But these aren't being smoked the way --
2 These are -- Parameters being input in that simulator model
3 at this point are not, are they defined in here? Because I
4 don't recall that they were inputting.
5 I think all this is is putting in the FTC numbers,
6 and seeing what happens when you block those vents using the
7 simulator program to do it.
8 Q. That's all I'm trying to, and I'm not trying to
9 say it is anything more than that, doctor.
10 A. It has nothing to do with humans.
11 Q. Well, it has to do with humans because you are
12 trying to learn something about the way humans smoke, right,
13 doctor?
14 A. Yes. Well, wait a minute, you are trying to say
15 what would happen if humans blocked holes in a certain way,
16 but they are not actually using human smoker's profile in
17 this study.
18 Q. Okay, but the studies show, under Marlboro King
19 size, smokers get 16.4? Is that right?
20 A. No, no. If you take a Marlboro King size, and
21 you plug six percent, you know, if that's about half of what
22 is there, it shows that it doesn't make much difference in
23 the dilution in the FTC method, using the FTC profile. It
24 does not say that a smoker will get 16.4 milligrams of tar.
0077
 1 It is milligrams per cigarette, under the same conditions as
2 the FTC, but with a portion of the holes blocked.
3 And if I can show you, if you go down to Virginia
4 Slims Lights, for example, you will see that the number,
5 because of the high dilution, still stays about the same, but
6 it's actually dropped down.
7 And as you go to Merit Ultras, they block thirty-six
8 percent of the holes.
9 And the model tar, the right-hand one is a little bit
10 less than the FTC. But these are under FTC conditions, all
11 of them.
12 Q. Fair enough, doctor. I am just trying to point
13 out that under those conditions, Marlboro King size, you get
14 16.4, is that right?
15 A. Yes.
16 Q. And Marlboro Lights, under those conditions that
17 you just described to us, shows 11.1, is that right?
18 A. Yes.
19 Q. I believe you were also shown another Barbro
20 Goodman document yesterday, that was #19-B. Do you have a
21 copy of #19-B? Or I can refer the witness -- I can put it up
22 on the screen.
23 THE COURT: Excuse me, just a second. I want to make
24 sure I am following this.
0078
 1 Under the Marlboro Lights, the twenty-five percent
2 dilution, the FTC indication was 10.7, the machine indication
3 shows 11.1. Is that correct?
4 MR. LOMBARDI: The model indication.
5 THE COURT: The model indication?
6 MR. LOMBARDI: Right.
7 THE COURT: Alright. And this is a machine same as
8 that used by the FTC?
9 MR. LOMBARDI: What it says, the FTC, it is measured
10 on the FTC machine, is that right, doctor?
11 A. Well, what they were doing is using the simulator
12 machine, the simulator machine is nothing more than an FTC
13 machine that you can program with different profiles,
14 different puff volumes, different time variations.
15 But in this particular one, they haven't changed the
16 machine from the way the FTC runs it. They are using the
17 same --
18 THE COURT: Excuse me, let me just read this.
19 (Short pause in proceedings.)
20 THE COURT: The simulator APL model described, is
21 that the same as the FTC machine?
22 A. Well, it isn't, but you can use it by putting in
23 those numbers the FTC uses to make it be the same. They were
24 just interested in what happened, when you block the holes,
0079
 1 to the FTC number. You can do the same study by making it
2 smoke like George Green --
3 THE COURT: Alright, thank you.
4 MR. LOMBARDI: Do you have #19-B in front of you?
5 A. I do.
6 Q. Plaintiffs #19-B?
7 A. I do.
8 Q. This was March 16th, 1977, memo from Barbro
9 Goodman, titled Changes in Smoker Profiles With Changes in
10 Nicotine and Tar Deliveries, Both On and Off Smoking Profile
11 Recorders.
12 Do you see that, doctor?
13 A. That's correct.
14 Q. And I think this is one that was in one of the
15 Plaintiff's Group Exhibits, but you didn't get a chance to
16 talk about it yesterday, is that right?
17 A. I don't recall talking about it. I think it was,
18 yes, it definitely was, #19-B.
19 Q. Okay. And if you go in to page one, under the
20 heading "summary", it says: Three cigarette models with
21 different tar and nicotine deliveries and/or ratios were
22 smoked by ten panelists over an extended period. The models
23 were a control Marlboro 85, an 11-12 milligram 85 millimeter
24 model, and the same model as b, with nicotine citrate sprayed
0080
 1 on the filler.
2 Do you see that?
3 A. I do.
4 Q. So these are the cigarettes that are being tested
5 in this particular Barbro Goodman study, is that right?
6 A. That's correct.
7 Q. And they were smoked by a panel of ten, is that
8 right?
9 A. Yes.
10 Q. Okay. And if you go back, doctor, to page
11 eleven of the document, Table One, this shows the physical
12 and analytical data that we looked at in the study, a couple
13 studies ago, is that right, doctor?
14 A. Yes.
15 Q. This is the basic, gives us, among other things,
16 the basic FTC tar numbers of the brands that are being
17 studied?
18 A. That's correct.
19 Q. And for the Marlboro, it is 16.9 under FTC tar?
20 A. Yes.
21 Q. And for the two others that are being tested
22 there is lower tar, is that right?
23 A. Yes. But the nicotine in the second one is about
24 the same as the nicotine in the first one. And even the
0081
 1 middle one, low delivery, if you look at the nicotine to tar
2 ratio, it is much higher than per cigarette.
3 Q. Okay. The FTC tar is higher for Marlboro 85 than
4 it is for the other two, is that right?
5 A. Yes, yes, it is.
6 Q. Okay. Then if you turn to Table Five, at page
7 fifteen, that is where the results are, is that right?
8 A. Yes.
9 Q. Of the human smoke simulator study?
10 A. Right.
11 Q. For these ten panelists?
12 A. Right.
13 Q. And for the Marlboro 85, they got 27.3 milligrams
14 of tar, is that right?
15 A. That's right, which about, is six divided by
16 twenty-one, it is about a 15% increase.
17 Q. Over the FTC numbers?
18 A. Yes.
19 Q. The FTC numbers, which weren't intended to
20 measure what an individual smoker would get?
21 A. But it is about 15% over the FTC.
22 Q. Okay, but the FTC also was put in place for
23 comparitive purposes among the brands, is that right?
24 A. Yes. I am not disagreeing with any of that. I
0082
 1 am just pointing out, or want to, because the purpose of this
2 test was to prove the benefit of increasing the nicotine to
3 tar ratio. And you will see that the amount of tar delivered
4 on the added nicotine one, and the other one, is 50%, 100%
5 increase over what it was in the other two cigarettes.
6 So while you didn't get exactly the same, in
7 titrating to the same nicotine level, and the .85 is a little
8 bit lower, so the tar goes up higher, they achieve much
9 greater amount of tar proportional to the nicotine they take
10 in. These cigarettes are high nicotine cigarettes.
11 Q. The ones that are being tested, is that right?
12 A. High nicotine to tar ratio. Same nicotine and
13 less tar cigarette to start off with.
14 Q. Well, doctor, what happened is the Marlboro 85's
15 had the highest number under the FTC tar measurements, is
16 that right?
17 A. Yes.
18 Q. And it had the highest tar measurements under the
19 human smoke, human smokers simulator delivery data, is that
20 right?
21 A. That's right. But you are missing the point
22 that, what we did in the cigarettes is to make the nicotine
23 level the same in those cigarettes. If you look at the
24 nicotine actually obtained, it is 1.84, compared to 1.74.
0083
 1 In other words, the people are smoking to get the
2 increased level of nicotine. And because the nicotine to tar
3 ratio was higher, you can't get as much tar out of that
4 cigarette as the same nicotine.
5 This was the idea behind the Merit cigarette, not the
6 idea behind the Marlboro Lights. This doesn't have anything
7 to do with Marlboro Lights.
8 Q. I didn't say Marlboro Lights, and if you
9 understood me to say that, then lets make this very clear
10 right now.
11 But the point, doctor, I am making is, when you
12 measure, under the FTC test method, you get results that are
13 Marlboro 85's is the highest tar level, is that right?
14 A. In this particular study, yes.
15 Q. And then when you measure under the human smokers
16 delivery data, Marlboro 85 has the highest tar levels again,
17 is that right?
18 A. With these cigarettes that are engineered to have
19 a higher nicotine content, that's right.
20 Q. Okay. I am showing you, doctor, what we have
21 marked as Exhibit #5050. Do you have that in front of you,
22 doctor?
23 A. I do.
24 Q. Okay. This is a report from August 20th of
0084
 1 1975, is that right, doctor?
2 A. Yes.
3 Q. And it is titled Twelve Milligrams Full Flavored
4 versus Marlboro 85 versus Vantage.
5 Do you see that?
6 A. I do.
7 Q. And this one was written by M.F. Kelley, is that
8 right?
9 A. Mike Kelley.
10 Q. And it shows, up in the upper right, this
11 particular copy was issued to Barbro Goodman, is that right?
12 A. That is what it says.
13 Q. Is this a document that you have seen before?
14 A. Yes.
15 Q. And this is another one of the studies using the
16 human smoking simulator, is that right?
17 A. That's correct.
18 Q. Okay. If we can go to the summary page, which is
19 numbered one, right after the table of contents?
20 A. We are at Table One?
21 Q. We are just waiting for it to come up on the
22 screen. Okay, and if you can just get that first
23 highlighted portion, it says, a characterization study was
24 conducted on the twelve milligram full flavored cigarette
0085
 1 recently tested on national P-O-L, and then it brackets 3006,
2 versus the Marlboro 58 control.
3 Do you see that?
4 A. I do.
5 Q. So they are working with a twelve milligram
6 cigarette, and comparing it to a Marlboro 85, is that right?
7 A. Yes. This was sent out on product opinion
8 laboratory, which is human testing. We get it out for people
9 to smoke.
10 Q. And they were testing Vantage cigarette, which is
11 by another manufacturer as well?
12 A. Yes. As I recall, the purpose of that twelve
13 milligrams cigarette is supposed to be competitive with
14 Vantage, and they are using Marlboro as the control. And I
15 think it should tell us what they mean by twelve milligram
16 full flavored in this document.
17 Q. But this, to finish up with this page, lets go to
18 the next highlighted portion. This summarizes the results,
19 right, this page, doctor, summarizes, it says the smokers
20 responded to the 23% dilution level in the twelve milligram
21 cigarette by taking significantly higher puff volumes than
22 were taken on the Marlboro 85 or the Vantage.
23 Do you see that?
24 A. Yes.
0086
 1 Q. Okay. But then it goes on to say, in the next
2 paragraph, although the properties used in the design of the
3 twelve milligram full flavored cigarette result in increased
4 volume slash puff, a known response to dilution, a
5 significant decrease in TPM slash puff to the smoker was
6 achieved. The decrease achieved averaged 26% lower TPM
7 slash puff than the control.
8 Do you see that?
9 A. I do.
10 Q. And TPM stands for what?
11 A. Total Particulate Matter.
12 Q. And that is what you have before you take out the
13 water to get to tar?
14 A. Yes.
15 Q. Okay.
16 A. And so it depends on the amount of tar you have,
17 the amount of nicotine you have, and if you look at Table
18 One, on page eight, if we are going there --
19 Q. That is where we are headed. And this again,
20 doctor, is the page that we have seen before, that is similar
21 in these kinds of studies where you give the specifications
22 for the cigarette, is that right?
23 A. Yes.
24 Q. And this one shows at the top, Vantage, the
0087
 1 control, the Marlboro control, and the twelve milligrams full
2 flavored, right?
3 A. Yes.
4 Q. And it shows the FTC tar levels, is that right?
5 A. Yes. And the nicotine levels, which are very
6 important for any kind of thing where you are trying to
7 compare and relate it to compensation.
8 Q. Okay. But under the FTC tar test, the Marlboro
9 85 gets more tar, is that right?
10 A. Yes.
11 Q. And the Vantage and the twelve milligram full
12 flavored are close, in the same ballpark, 10.5 to 11.6, is
13 that right?
14 A. That's correct. And in both products the
15 nicotine to tar ratio is higher than it is in the Marlboro 85
16 control.
17 Q. Okay. And then if you move to the results, and
18 they are actually hand written in this study, doctor --
19 A. What page are we on, I'm sorry?
20 Q. The page numbers are upside down, and in the
21 left-hand corner. But this is what we are looking for,
22 doctor. And it should be right before the appendix, I
23 think. The appendix is page number, ending 924, and it
24 should be the document right before that.
0088
 1 Do you see that?
2 A. Yes, I do.
3 Q. Okay. And again, this is hand written this time,
4 is that right?
5 A. Yes.
6 Q. And if you look at the Marlboro 85, the tar level
7 for the Marlboro 85 -- First of all, it says this is a
8 simulator data, do you see that?
9 A. Yes.
10 Q. And it totals it up down at the bottom. Marlboro
11 85 is there in the middle, is that right?
12 A. Yes, but that is not the important comparison.
13 Q. I am talking about the tar level, doctor.
14 A. I understand, but what I am calling your
15 attention to is that the only difference between Philip
16 Morris' full flavored model and Vantage, is the 23%
17 dilution.
18 And I would like you to look at the tar levels for
19 the Vantage over on the right-hand side, it is 20.4. And
20 compare that with the tar level for the twelve milligrams
21 full flavor. Now you are comparing apples with apples.
22 With everything the same except the dilution, the tar
23 level for the twelve milligrams full flavored is 22.4,
24 compared to 20.4 for the Vantage.
0089
 1 MR. TILLERY: Judge, just so --
2 THE COURT: Excuse me, is the dilution constant here?
3 A. No, that is the only difference, is the cigarette
4 on the left is 23% dilution.
19 THE COURT: That is how it is going to work.
20 MR. LOMBARDI: And, doctor, so the Marlboro 85 had
21 the highest tar level under the FTC test, is that right?
22 A. Yes.
23 Q. Okay. And the Marlboro 85 shows 26.2 tar under
24 this simulator data, is that right?
0090
 1 A. That's correct, right.
2 Q. And that is the highest of the three, is that
3 right?
4 A. It is in line of what you would anticipate if you
5 titrate to the same nicotine.
6 Q. The twelve milligram full flavored had the next
7 highest level under the FTC, is that right?
8 A. Right.
9 Q. And here it was 22.24 milligrams of tar?
10 A. Yes.
11 Q. That is the second highest under the simulator
12 data, too, is that right?
13 A. Yes.
14 Q. And then the Vantage had the lowest tar levels
15 under the FTC test, is that right?
16 A. That's right.
17 Q. And it has 20.4 milligrams of tar under the
18 simulator test, is that right?
19 A. That's right.
20 Q. It had the lowest level of tar on both the FTC
21 test and simulator data?
22 A. And the only difference between that cigarette
23 and twelve milligrams full flavor, is the 23% dilution.
24 Which shows that when you dilute cigarettes, and that is the
0091
 1 only difference, it is easier to compensate and get more tar.
2 Q. Okay. And with these cigarettes, as it was with
3 the last study we looked at, the FTC tar levels for the
4 cigarettes, gave a comparitive ranking that remained the same
5 after you put it through the simulator, is that right?
6 A. Not if the only difference is dilution, that's
7 the point.
8 Q. The tar levels, the tar levels in this document
9 show that the FTC tar ranked the Marlboro 85 first, twelve
10 milligrams second, and Vantage third, is that right?
11 A. But you are wrong. If you look back --
12 THE COURT: Excuse me, are you presuming with
13 dilution constant?
14 MR. LOMBARDI: Well, yes, presuming as they did it in
15 this document, as is reported in the document, Judge. And
16 the document reports that the Vantage cigarette and the
17 Marlboro 85 and the twelve milligrams had certain FTC tar
18 numbers. Is that right?
19 A. Okay. I agree that that is the data. The 26.2
20 is the highest of the three cigarettes, no question about
21 that.
22 Q. Okay. Under the human smoke simulator, is that
23 right?
24 A. That's correct.
0092
 1 Q. And that was for the Marlboro 85, the Marlboro
2 Regular, is that right?
3 A. That's correct, when smoked to the same nicotine
4 level. Again, if the cigarette were higher, the nicotine to
5 tar ratio would be -- Yes, that's true.
6 Q. Okay. And you agree doctor, that the ranking for
7 the other two cigarettes under the FTC test is also reflected
8 in the ranking under the simulator data, is that right?
9 A. Within the errors of statistics, I would say the
10 other two are pretty much the same, yes. But you have got a
11 little bit more out of the twelve milligrams full flavor
12 compared to the Vantage.
13 Q. Well, but it's true, doctor, there are a lot more
14 studies than that we just looked at this morning by Barbro
15 Goodman did, is that right?
16 A. That's correct.
17 Q. Barbro Goodman's studies show, didn't they,
18 doctor, that the FTC tar numbers were reflected in the human
19 smoke simulator numbers as well? At least in terms of the
20 relative ranking of the cigarettes that she tested?
21 A. Not quite. Barbro Goodman was not allowed to
22 use, or did not use parameters, smoker parameters, that would
23 have caused the reverse to happen. You have the opportunity,
24 in this machine, to select the parameters that you use.
0093
 1 What tapes you select to put in there gives the results.
2 And these studies were not done to correlate to the
3 FTC numbers. They were simply done so that people could
4 understand, if you smoked a cigarette a different way, what
5 could happen in that particular cigarette. They weren't
6 done --
7 If you were to do these to try to prove ranking with
8 regard to the Federal Trade Commission, you would have to go
9 through all the different ways people smoke, or a great
10 variety, a wide variety of cigarettes. You would find, for
11 example, that Winston was higher at one time, Marlboro
12 Regulars lower, and flip around.
13 That wasn't the reason for doing this. They weren't
14 trying to prove anything about Federal Trade Commission
15 numbers. We were trying to understand how delivery levels
16 increased with different kinds of smoker profiles.
17 Q. Okay. But you were the one, you talked about the
18 Barbro Goodman study yesterday, here in court.
19 A. I talked about a specific study where the only
20 difference between the product was Marlboro Lights versus
21 Marlboro's. Because as I understand it, that is what is at
22 issue in this case. I tried to stick with that, so as not
23 to confuse ourselves, actually.
24 Q. Okay, alright. But my only question is, doctor,
0094
 1 you are aware that Barbro Goodman's studies, she did a number
2 of studies that were similar to this, where she would put a
3 report of the FTC tar levels of cigarettes, and then she
4 would put a report of the tar levels under the human smoke
5 simulators. She did a number of those studies, didn't she?
6 MR. TILLERY: Excuse me, if he's got the study, show
7 him this reference. Vague references to studies --
8 THE COURT: I think he can ask. That is about the
9 third time he's asked him, but --
10 A. She did lots of studies.
11 MR. LOMBARDI: Of that nature that I just described?
12 A. Not related to Marlboro Lights, Marlboro
13 Regulars. Just showing what happens. And always, every
14 time, you get more tar when you smoke it in the human smoke
15 simulator than you do in the FTC.
16 And what you are trying to say, I think, is by and
17 large, if I pick the parameters right, they will always come
18 out of the same ranking order. And I don't disagree with
19 that.
20 Q. Okay, and you agree with the Barbro Goodman study
21 you are aware of, they come out in the same ranking order
22 under the FTC?
23 A. But they are not indicative of Marlboro Lights
24 versus Marlboro Regulars, as smoked by humans. The important
0095
 1 studies are not what the machine simulator does when you
2 tweak the knobs, it is what the people got, leading up to
3 that knowledge.
4 Q. Because people are different than machines,
5 correct?
6 MR. TILLERY: We will stipulate to that.
7 A. Yes.
8 MR. LOMBARDI: Do people smoke differently, among
9 themselves?
10 THE COURT: He is asking the question, so he is
11 entitled to the answer to that question.
12 A. Yes, they do.
13 THE COURT: Thank you.
14 MR. LOMBARDI: I'm sorry, doctor, and individuals
15 smoke different?
16 A. I said yes to both questions.
17 Q. Now, doctor, the extent of compensation is
18 something I don't think I have talked to you about yet
19 today.
20 When we talk about compensation, we are talking about
21 full compensation, is that right? You are familiar with that
22 term, full compensation?
23 A. Yes, I am.
24 Q. In the context of cigarettes, and not in the
0096
 1 context of employment?
2 A. Full compensation, as we said, that means getting
3 equal amounts of nicotine.
4 Q. And when you fully compensate, then you get the
5 exact same amount of nicotine that you got -- Say you switch
6 from a higher tar brand down to a lower tar brand. If you
7 fully compensate, you get the same amount of nicotine from
8 the lower tar brand, as you did from the higher tar brand?
9 A. If the brand is designed to allow that to
10 happen. As I pointed out yesterday, we can design that so
11 that doesn't happen.
12 Q. And it is also possible to have partial
13 compensation, isn't that right?
14 A. That is what happens when you have a cigarette
15 designed that you can't do full compensation.
16 Q. So you can have partial compensation where you
17 start with a higher tar brand, you switch to a lower tar
18 brand, and you might get more from the lower tar brand, but
19 not as much as you would have gotten from the higher tar
20 brand, is that right?
21 A. That's correct. And then the next thing you do
22 is see whether the number of cigarettes per day increased to
23 make up that shortfall on the nicotine.
24 Q. Okay. But that is what partial compensation
0097
 1 means, is that right?
2 A. That's right.
3 Q. And there is also something called temporary
4 compensation, is that right?
5 A. Especially for new smokers, where they haven't
6 quite picked up the level that they would like. And as you
7 go through life, the level changes of nicotine, so, yes, in
8 certain instances, where the level of nicotine that one
9 desires is changed, you get this phenomenon of temporary
10 compensation, until they find their new acceptable level.
11 Q. Okay, and temporary compensation refers to the
12 idea, at least with some smokers, there might be compensation
13 for a period of time, but it doesn't, it is not permanent, is
14 that right?
15 A. I have trouble with that question. The
16 compensation, it has to do with the level of nicotine. But
17 if what you are asking me, when they get to the new level of
18 nicotine that they need or want, do they still compensate the
19 same way, I can agree. But it is all dependent on the level
20 of nicotine.
21 Q. And there is a phenomenon, at least with some
22 smokers, some smokers only temporarily compensate, is that
23 right?
24 A. Yes, because they develop a new titration level.
0098
 1 Q. Okay. But it's not, I'm not saying it is all
2 smokers, not all smokers just temporarily compensate, but
3 there are some smokers who do?
4 A. That's correct.
5 Q. Okay. Now, you have kept up on the literature
6 relating to compensation since you left Philip Morris,
7 particularly here in the 1990's, is that right?
8 A. In the 2000's, too, yes.
9 Q. I am behind, doctor. In the 1990's, there was
10 Monograph, another Monograph that reference has been made to,
11 I think in this trial, but if not, certainly in this
12 litigation, called Monograph 7, is that correct?
13 A. That's right.
14 Q. And that was another government Monograph, is
15 that right?
16 A. That's right.
17 Q. It was called the FTC Cigarette Test Method for
18 Determining Tar, Nicotine and Carbon Monoxide levels in U.S.
19 Cigarettes, is that right?
20 A. Sounds about right.
21 Q. I will give you a copy, and this is a big one.
22 And doctor, this is marked as Exhibit #4365.
23 If you just look at the cover page, doctor, I'm not
24 going to ask you to affirm that this is the entire document,
0099
 1 but based on the cover page, that is what you would
2 recognize, that is Monograph #7?
3 A. Yes, I have reviewed this Monograph.
4 Q. And essentially what is going on with Monograph
5 #7, doctor, that is a publication that followed a conference
6 or symposium that took place, is that right?
7 A. Well, yes, panels were convened to discuss this
8 topic, if that is what you mean.
9 Q. But what happened was, first there was a meeting
10 of panels of various people who study tobacco issues and
11 specifically issues related to the FTC method, and they met
12 and had a conference in 1994, is that correct?
13 A. I don't recall the date, but that is what it says
14 here, yes.
15 Q. And then subsequent to that, the participants
16 wrote papers, and some of the dialogue at the conference was
17 transcribed, and it was made into this document, which is
18 called Monograph 7, is that right?
19 A. Yes.
20 Q. And this was the government taking a look at the
21 FTC method, and some of the issues concerning the FTC method,
22 is that right? In general?
23 A. In general, yes.
24 Q. And they were trying to decide what they should
0100
 1 do, should they maintain the FTC method or not, is that
2 right?
3 A. That's correct.
4 Q. And there were, you are familiar with the
5 document, is that right?
6 A. Yes. And I have talked to some of the people
7 that were involved.
8 Q. And the document has some information in it on
9 compensation, is that right?
10 A. I believe it does.
11 Q. I can refer you to something specific, doctor, to
12 make it easier. For instance -- You need some water,
13 doctor?
14 THE COURT: I didn't realize two hours had elapsed.
15 Before we get into this line of questioning, I think we will
16 have a fifteen minutes recess at this time.
17 MR. TILLERY: Okay.
18 *****
19 (Brief recess was taken.)
20 *****
21 THE COURT: Okay, you may resume.
22 MR. LOMBARDI: Dr. Farone, we were talking, just
23 introducing the subject of NCI Monograph 7, is that right?
24 THE WITNESS: Yes.
0101
 1 Q. And just to get back to where we were, that was
2 based on a symposium or a meeting of scientists in 1994, that
3 discussed FTC methods and issues related to it, is that
4 right?
5 A. Yes. And I have reviewed it and its conclusions.
6 Q. You reviewed it before you came here today?
7 A. That's correct.
8 Q. Okay. And this is, it has got a number of
9 chapters in it, some of which talk directly about
10 compensation, and others don't, obviously. But some talk
11 directly about compensation, is that right?
12 A. Yes.
13 Q. One of the chapters that talks about compensation
14 is the one by Lynn Kozlowski, is that right?
15 A. I believe so.
16 Q. That is chapter twelve, page 161.
17 A. Okay.
18 Q. Do you have that page 161, doctor?
19 A. I do.
20 Q. And we put that up on the screen, it is called
21 Compensation for Nicotine by Smokers of Lower Yield
22 Cigarettes, by Lynn Kozlowski and Janine Pilitarri (PH), it
23 looks like.
24 Do you see that?
0102
 1 A. I do.
2 Q. I am sure you are familiar with Lynn Kozlowski,
3 is that right?
4 A. Yes.
5 Q. And Lynn Kozlowski is somebody who has written
6 extensively on compensation, is that right?
7 A. That's correct.
8 Q. And Dr. Kozlowski studies some of the literature
9 concerning the extent of compensation in this article, is
10 that correct?
11 A. Yes.
12 Q. If we turn to Table One, I believe that is page
13 163, do you have that doctor?
14 A. Yes, I do.
15 Q. Okay. And he calls the table, Summary of Five
16 Experimental Brand Switching Studies Demonstrating Changes in
17 Cigarette Yields Due to Compensation.
18 Do you see that?
19 A. Yes.
20 Q. Okay. And he summarized, looks like six studies
21 there, is that right?
22 A. Yes.
23 THE COURT: Is that a he or a she?
24 MR. LOMBARDI: Lynn is a he, isn't it, doctor?
0103
 1 A. Yes, it is a he.
2 THE COURT: Okay, I got confused.
3 MR. LOMBARDI: And actually, doctor, it said it is
4 six studies, there are two entries for one study, Robinson,
5 see right in the middle of the left-hand column, Robinson
6 Stage One and Robinson Stage Two.
7 Do you see that?
8 A. Yes.
9 Q. So we are talking about five studies, six studies
10 as broken down on this chart, is that right?
11 A. Yes.
12 Q. And what Dr. Kozlowski reports is that according
13 to those the studies, well, he records what the percentage of
14 compensation was according to those studies, is that right?
15 A. Yes.
16 Q. And he is going through and trying to determine
17 the extent of compensation according to those studies, is
18 that right?
19 A. That's correct.
20 Q. And what he does is he puts a percentage
21 compensation in the right-hand column that corresponds to
22 each study, is that right?
23 A. Yes.
24 Q. And a hundred percent compensation would mean
0104
 1 that you are getting all the nicotine that you would have
2 gotten from the higher yield cigarette, when you smoke the
3 lower yield cigarette, is that correct?
4 A. That's correct.
5 Q. And what this chart shows is that compensation in
6 these studies is incomplete, is that right?
7 A. Yes. The nicotine levels are -- The differences
8 are large in most of these, and therefore it is not complete.
9 Q. Okay, which means that the smoker who goes from
10 the high tar cigarette to low tar cigarette is not getting
11 the same delivery with the low tar cigarette, as they would
12 have gotten with the high tar cigarette, is that correct?
13 MR. TILLERY: Unless he specifies the type of low tar
14 cigarette, I object, Your Honor.
15 THE COURT: Alright, I will sustain that. Why don't
16 you insert that condition.
17 MR. LOMBARDI: Okay, with that condition, Dr. Farone,
18 you understand that? You understand this is a measure of the
19 levels in the blood?
20 A. Yes, I do understand. And the point is, the
21 levels are being measured relative to the change in nicotine
22 in specific cigarettes. And some of those changes are huge,
23 a tenth to 1.3. And this is not what we are talking about
24 with regard to Marlboro Lights versus Marlboros or Cambridge
0105
 1 Lights versus Cambridge.
2 Q. Okay. This is what the public health community
3 was talking about, the 1994 conference, talking about the FTC
4 method, isn't that right, doctor?
5 A. No, actually there is a conclusion with regard to
6 the FTC method in the front of this book, which I reviewed,
7 if you would like to know what their opinion is.
8 Q. Well, lets talk about this chapter first.
9 A. Okay.
10 Q. Whatever their conclusion was, doctor, you are
11 aware that the FTC method continued in place after this
12 conference, is that right?
13 A. They explain here what they would like to do
14 about that, yes.
15 Q. But the FTC method was never taken out of play by
16 this conference?
17 A. Not by the conference.
18 Q. Whatever criticism they raised here, the FTC
19 continued on with the method, is that right?
20 A. They have so far, yes.
21 Q. They are considering that today, is that right?
22 A. That is my understanding.
23 Q. Out in Washington, D.C.?
24 A. Well, people like myself have been asked their
0106
 1 opinions on it.
2 Q. You have been asked for opinions by the FTC?
3 A. No, by people who, by panels who are discussing
4 this with regard to the FTC.
5 Q. So you are involved with the FTC consideration
6 today, of issues that we are talking about in this lawsuit,
7 is that right?
8 A. I wouldn't quite put it that way. But I do have
9 some opinions on proper testing, and frequently people call,
10 some of the people that talk to, when I give my
11 presentations, these are discussed among people, that include
12 Dr. Cummings, Dr. Burns, and other people.
13 Q. And those type of people, to your knowledge, are
14 also communicating today about the FTC test methods?
15 A. Well, I don't know about today. Yes, currently
16 that is still a discussion that is ongoing as to what type of
17 testing should be done with particular reference to specific
18 testing of carcinogenic materials in cigarettes in addition
19 to simple tar and nicotine.
20 Q. Okay. Back to the table, doctor. This table
21 shows that the studies that Dr. Kozlowski chose to include
22 resulted in less than 100% compensation, is that right?
23 A. It does.
24 Q. Okay. And then he actually graphs, on page 164,
0107
 1 in figure one, compensation, is that right? Down there, that
2 graph at the bottom of the page?
3 A. Yes.
4 Q. Okay. And this is applying this, the results
5 from the studies we saw in the table we just looked at, Table
6 One, is that right?
7 A. That's correct.
8 Q. And what it shows is if you look on the, what is
9 the vertical axis, that is the Y axis, isn't it, doctor?
10 A. Yes.
11 Q. The vertical axis is the percentage of
12 compensation over there on the left?
13 A. Right.
14 Q. And he does an un-adjusted number and an adjusted
15 number for the number of cigarettes, is that right?
16 A. That's right.
17 Q. And what he concludes, what he shows on the
18 graph, graphically, that was in the table, is a compensation
19 is not up at 100%, is that right?
20 A. That's correct. It reaches 80%, not 100% in
21 these particular studies.
22 Q. Okay.
8 MR. LOMBARDI: Dr. Farone, there is another chapter
9 on compensation in the book, and the volume is chapter seven,
10 on page 93, titled Biomarkers of Cigarette Smoking, is that
11 right?
12 A. Well, there is also one before that, chapter
13 eleven.
14 THE COURT: He is asking --
15 A. I don't know --
16 MR. LOMBARDI: Chapter seven, page 93, please. Have
17 you been able to find that doctor?
18 A. Yes.
19 Q. That is the chapter written by Neal Benowitz, is
20 that right?
21 A. That's right.
22 Q. And when we talk about, just so the Judge is
23 aware, when we talk about biomarkers of cigarette smoking,
24 that refers to a way of trying to determine how much nicotine
0109
 1 a smoker gets from a cigarette, is that right?
2 A. Yes. Not instaneously. It usually refers to a
3 measurement of how much intake has been over some period of
4 time. Long enough for something to accumulate in the blood
5 that is related to the intake of nicotine.
6 Q. So, for instance, one biomarker that is used in
7 is something called cytosine, is that right?
8 A. That's correct.
9 Q. And the idea is that you smoke a cigarette, you
10 take in nicotine, is that correct?
11 A. Among other things, yes.
12 Q. And then, when the nicotine gets into your blood
13 stream, eventually it metabolizes, some of it metabolizes,
14 making cytosine, is that right?
15 A. Yes.
16 Q. And when it is changed into cytosine, that is one
17 of the ways that you can experiment, is to take a blood
18 sample from a smoker, and then try to measure the cytosine
19 level in the smoker's blood, is that right?
20 A. Yes.
21 Q. And that is one of the common biomarkers of
22 cigarette smoke, is that right?
23 A. Yes, it is.
24 Q. And that is actually the biomarker that is used
0110
 1 in Monograph 13, is that right? The chapter on Monograph 13?
2 A. That is the most frequently used biomarker,
3 because it is the easiest one related directly to the effect
4 of nicotine.
5 Q. Now, Dr. Benowitz concluded, in this chapter,
6 based on his biomarker studies, that there was some
7 relationship between the nicotine yield as reported in the
8 FTC tests and the nicotine received by the smoker, is that
9 right?
10 A. I don't understand. You can always have some
11 relationship, I can't disagree with that.
12 Q. Well, what it means when he says there is a
13 relationship, is that as the nicotine level of a cigarette
14 goes down, the nicotine taken in by the smoker goes down?
15 A. Especially over wide ranges of delivery, yes.
16 Q. Okay. Well, when I say the nicotine of the
17 cigarette goes down, I mean the nicotine of the cigarette as
18 measured under the FTC method, as it goes down, the cytosine
19 level, and therefore the nicotine in the smoker goes down, is
20 that right?
21 A. Well, over large ranges of nicotine, that is
22 true, yes.
23 Q. Okay, and just to be completely up-front, fair
24 about this, doctor, he says it is a shallow relationship, it
0111
 1 is a weak relationship, but there is a relationship, right?
2 A. Yes, there is always a relationship.
3 Q. Okay. And he says, and this is right before you
4 get to the question and answer section, so this is the
5 conclusion of the document.
6 On the other hand, because there is some relationship
7 between yields and nicotine, and although the slope of that
8 relationship is shallow -- And you agree with him to that
9 point, don't you? That there is some relationship and the
10 slope of the relationship is shallow?
11 A. There is always a relationship, even if it is one
12 to one.
13 Q. Well, do you agree with what he said there,
14 doctor?
15 A. Yes, I agree that there is some relationship, and
16 the slope is shallow, meaning that there is not much
17 difference.
18 Q. Okay. He then goes on to say, it is not
19 recommended that smokers regress to smoking higher yield
20 cigarettes.
21 Do you see that?
22 A. Yes. And he means not FTC tar, necessarily, but
23 yield.
24 Q. It means yield as measured by the FTC measure, is
0112
 1 that right?
2 A. Doesn't say that. I'm not sure if that is what
3 that means. I think he means higher yield, they don't smoke
4 cigarettes from which you would extract more tar.
5 Q. Okay, well, if you look higher in the paragraph,
6 do you see a reference to low yield cigarettes?
7 A. Yes, that is also one of the conclusions of that
8 Monograph.
9 Q. He refers to the benefit of switching to low
10 yield cigarettes in that sentence?
11 A. Yes.
12 Q. And then he goes on to say, he doesn't recommend
13 that smokers regress to smoking higher yield cigarettes, is
14 that right?
15 A. I don't think there is any disagreement with
16 that.
17 Q. Well, that was my next question. You agree with
18 that?
19 A. Yes.
20 Q. You would not recommend to smokers that they go
21 back to smoking higher yield cigarettes under the FTC test
22 method, is that correct?
23 A. I would recommend that they smoke an FTC number
24 that is so low, that they can't possibly compensate and get
0113
 1 more tar out of that cigarette.
2 Q. And, Dr. Farone, the public health community,
3 there's been discussion about the fact that compensation, if
4 it is not complete, well, strike the question.
5 There has been some discussion in the public health
6 community about, if compensation exists, and even if it is
7 substantial, but not complete, that there is still some
8 benefit to selling cigarettes of that nature, is that right?
9 A. I'm not sure I understand what you are --
10 Q. Okay, let me ask, I will take it a piece at a
11 time.
12 You can have compensation that is not complete,
13 correct?
14 A. Yes, with wide differences in tar deliveries, I
15 mean in nicotine deliveries, that's correct.
16 Q. And you can have compensation that is
17 substantial, but is not complete?
18 A. That's correct.
19 Q. Okay. Meaning, not complete, meaning you are not
20 getting all the way up to the level of nicotine you would get
21 under the higher yield cigarette, but you are getting up
22 close to that level?
23 A. Yes.
24 Q. Okay. And there has been discussion in the
0114
 1 public health community about whether a cigarette, about
2 whether a cigarette that permits substantial compensation
3 still might be useful from a public health perspective, as
4 long as it is not complete compensation?
5 A. Well, it is a little more complicated than
6 that. It is useful as long as the dose of the various
7 toxins in that tar are delivered are less, because we also
8 know that all tar is not created equal. I think if we assume
9 all tar is created equal, then we can just look at yield. If
10 tar is more toxic, then yield alone doesn't answer the
11 question. You have to know the relative toxicity and then
12 you can make tests to determine which is more beneficial.
13 But you can always come to some conclusion about how
14 low the compensation has to be, given some increase toxicity
15 that would make that beneficial. What we are trying to do
16 is to reduce the number of carcinogens and mutagenicity and
17 things like that.
18 Q. Okay. And Dr. Benowitz actually commented on
19 this point at the conference, didn't he?
20 A. Yes, he did.
21 Q. Okay. And do you recall what his comment was?
22 A. No, I just, as I say, I am aware of the general
23 conclusion of this Monograph 7 as applied to this case.
24 Q. Okay. And lets look at, well, you are familiar
0115
 1 with the nature of this document, is that, after all the
2 reports were finished, there is a section that transcribes
3 back and forth between the scientists, their discussion of
4 the issues, is that right?
5 A. That's correct.
6 Q. Okay. And that is at the back of the document,
7 if you could look at page 214, please.
8 A. Got it.
9 Q. Okay. And you see at the bottom of the page,
10 there is a reference to Dr. Benowitz?
11 A. Yes.
12 Q. Okay. And he starts off, I think that it would
13 be great if we could put something in about health risks. I
14 think the data seems very clear that smoking any cigarette is
15 so much greater risk than smoking none, that it would be
16 impossible to quantitate it. And I think that should be
17 communicated.
18 And you certainly agree with that, don't you, doctor?
19 A. Well, you have got to read the rest.
20 Q. Well, we are going there, but I am talking about,
21 so far you agree with what --
22 A. No, I don't, because he contradicts it, what he,
23 you have to read the next sentence.
24 Q. You disagree that it is better --
0116
 1 MR. TILLERY: Your Honor, I object, unless he
2 finishes the paragraph. That is for Rule of Completeness.
3 THE COURT: He is asking the question, you can recall
4 this in your cross examination.
5 MR. LOMBARDI: I will be finishing the paragraph,
6 Your Honor. I am taking it a step at a time, doctor.
7 My only question is, I think what Dr. Benowitz is
8 saying is fairly non-controversial. If you are concerned
9 about your health, the best thing to do is quit smoking?
10 A. I don't think anybody disagrees with that.
11 Q. And that is what he said there, isn't it?
12 A. Yes, okay, I will buy into it. It is the
13 communication which -- Go ahead.
14 Q. And then he says, but at the same time, even if
15 there is a small difference in exposure from high to low
16 yield cigarettes, if you are talking about huge population of
17 smokers, it is worthwhile to encourage as many as possible,
18 as many possible, excuse me, to get as low a yield as
19 possible.
20 And I will continue the sentence in a second, but do
21 you see that so far?
22 A. Oh, yes. And that is exactly what I, I agree
23 with that statement.
24 Q. You agree that even if there is only a small
0117
 1 difference in exposure to tar and nicotine, as between high
2 and low yield cigarettes, when you are talking about a huge
3 population of smokers, it is worthwhile to encourage as many
4 smokers as possible to get as low a yield as possible?
5 A. Well, if he is talking about, see, I think when
6 we talk about this, we have to distinguish tar, the yield of
7 tar from the yield of things that cause disease within the
8 tar.
9 Because you could get a lower yield of tar, and
10 that's my point, you could get a lower yield of tar -- And I
11 discussed this with Dr. Benowitz, he understands this point,
12 he doesn't disagree. If you could get a lower yield of tar
13 that is more toxic, it would not be beneficial, compared to a
14 higher yield of tar.
15 Q. All I am asking, do you agree with what I read
16 from the sentence so far?
17 A. Under the assumption that all tar is created
18 equal, yes, I agree with it.
19 Q. Okay. And then he goes on to say, even though
20 it, meaning switch from high yield to a low yield cigarette
21 is not going to have nearly the effect of stopping,
22 switching, and you agree with that for sure, don't you,
23 doctor? Don't you?
24 A. Yes, I understand. Go ahead, I agree. Again,
0118
 1 under the same, the standing assumption, we need to
2 understand here, is that the assumption is that all tar is of
3 equal toxicity. And as long as we understand that, there is
4 no problem with what he says.
5 Q. Okay, and I understand your assumption in reading
6 this. But you agree that it is always going to be safer,
7 from a health standpoint, to stop smoking, than it is to
8 switch from a higher yield to a lower yield, is that right?
9 A. That's correct.
10 Q. Okay. But he goes on to say, it is still of some
11 benefit, it meaning switching from a high yield to a low
12 yield, even if there is a small difference in exposure,
13 right, doctor?
14 A. Yes.
15 Q. So I think we should warn people that switching
16 to low yield cigarettes is not going to remove the risk of
17 smoking, but still try to encourage that somehow people do
18 that.
19 Do you see that?
20 A. I do.
21 Q. Do you agree with that?
22 A. It is better to stop than get it as low as
23 possible, I don't see how you can disagree with that. The
24 only proviso is we don't want to give them something more
0119
 1 toxic.
2 Q. That Monograph was the last Monograph that dealt
3 with compensation and low tar cigarette issues, prior to
4 Monograph 13, is that right?
5 A. I believe so.
6 Q. Doctor, I guess, is it fair to call you, during
7 your period of time at Philip Morris, a cigarette designer?
8 A. Well, I mean, as a physical chemist with
9 engineering background, processing tobacco, chemistry,
10 cigarette design is one thing that we spent a lot of time, of
11 the 80% of time on safe cigarettes, probably two-thirds of
12 that spent on designing safer cigarettes. The other third
13 was spent on developing processes or tobacco that
14 intrinsically would be less harmful.
15 Q. My only question, as part of what you did at
16 Philip Morris, designing cigarettes?
17 A. I didn't design, the development people design
18 cigarettes. What we did is we studied cigarette design, and
19 we developed technology that allowed cigarettes to be
20 designed differently.
21 Q. And designing cigarettes, particularly when you
22 are trying to make a safer cigarette, is a complex business,
23 is that right?
24 A. Yes.
0120
 1 Q. That's one of the reasons you liked it, it was a
2 challenge, is that right?
3 A. Yes, it has a lot of parameters to it. But
4 fairly well understood ones.
5 Q. But just to give the Court an idea of the
6 complexity, when you are talking about smoke, you are talking
7 about like five thousand chemical constituents in the smoke?
8 A. Well, probably closer to eight, but five or so
9 have been identified now, and as the time went on, identify
10 more. But, yes, a large number, and some of them have been
11 identified as being the ones we talked about being important
12 for health. And you have to understand how those, the ones
13 that are of issue here.
14 Q. Okay. And one of the things that you dealt with
15 when you were at Philip Morris, was if you try to have an
16 effect on one part of the smoke, one chemical part of the
17 smoke, you might also have effect on other parts, other
18 chemical parts of the smoke, is that right?
19 A. That is correct. Change the ratio of combustion
20 parallels will change the chemicals that are formed.
21 Q. And so you are trying to address one of the bad
22 actors in smoke by reducing it, that's fine, but you might
23 also, in doing that, have an effect on another part of the
24 smoke that might also have a harmful effect?
0121
 1 A. That's right. So you have to understand the
2 biological testing, the differences between the two
3 substances. Because what you would like to do is reduce at
4 least the one that is more harmful to a lower level to permit
5 the one that is still harmful but maybe not quite as bad, you
6 can allow small increase in that, and still have an over-all
7 reduction relative risk.
8 Q. Okay. And just to give the Court an example, for
9 instance, you can, aldehydes are one of the constituents of
10 smoke that is potentially one of the bad actors, is that
11 right?
12 A. That's correct.
13 Q. And you refer to, I think yesterday poly-aromatic
14 hydrocarbons, is that right?
15 A. That's correct.
16 Q. And that is another potential bad actor, is that
17 right?
18 A. That's right.
19 Q. And we call it PAHs for short?
20 A. That's right.
21 Q. So for instance, you could increase the sugar in
22 the smoke and decrease the aldehyde, is that right?
23 A. The other way around, decrease the sugar in the
24 cigarette, and decrease the aldehydes.
0122
 1 Q. But if you decrease the sugar, you have the
2 opposite effect on the PAHs, is that right?
3 A. No, the tobacco itself, if you have more air
4 going through, in the absence of air, there is always this
5 trade off between the PAH's, and the aldehyde.
6 Q. Okay. And if trade off was actually the word I
7 probably should have used, but you have to understand those
8 kinds of trade offs, and that is one of the challenges and
9 difficulties of designing cigarettes, is that right?
10 A. That's correct. The relationships are fairly
11 well known. And we also know the dose response
12 characteristics for those chemicals, so we know which of them
13 is more toxic. And you can make a determination of which
14 reduction allows certain increases than the other one.
15 Q. Okay.
16 A. Aldehydes, for example are produced five hundred
17 or eight hundred micrograms per cigarette. And a safe dose,
18 or lets put it this way, a dose that causes harm to less than
19 one in a hundred thousand people, that level of risk is only
20 ninety micrograms per day. So you have got a long way to go
21 to reduce those, to make them be less harmful.
22 Where as PAHs, they are fairly close to the threshold
23 level. So we can tolerate probably a little more PAH on a
24 per cigarette basis, but the quantity is so large.
0123
 1 Q. Okay, and you have talked about biological
2 testing of cigarettes as a way to try to get a feel for how
3 these trade offs work and to inform yourself about what you
4 should be trying to do with the trade offs, is that right?
5 A. That's correct.
6 Q. And you are of the opinion that there should be a
7 battery, I think that is your term, a battery of biological
8 tests performed is right?
9 A. That's correct.
10 Q. And that is because you want to have as much
11 information as you can about these various constituents of
12 smoke, is that right?
13 A. Not really. The battery that you select has to
14 be related to how the chemical of the smoke interacts with
15 humans. But assuming that every one of those tests has some
16 relevance to the toxicity mechanism in humans, then obviously
17 the more you have is --
18 Q. Alright, that's alright. When I talk about
19 biological activities, I am talking about a test in the
20 laboratory, is that right?
21 A. Well, I don't know. I mean, epidemiology is the
22 ultimate biological activity, but yes.
23 Q. Okay, and that is, let's put epidemiology to the
24 side for a moment.
0124
 1 When we talk about the battery of biological tests
2 that you want to perform, we are talking about tests that you
3 do in a laboratory, is that correct?
4 A. That's correct.
5 Q. And they are not tests with humans, is that
6 right?
7 A. That's right.
8 Q. And for that reason, there are some limits to the
9 information you can glean from the test in terms of the
10 effect that they are going to have on people, is that right?
11 A. They are not human, so, yes, there is a limit.
12 The tests are supposed to be related to how it works in
13 humans, so that you then know what specific information you
14 are gleaning from each test.
15 Q. Okay. But one of the reasons you have a battery
16 of tests, this is my only point, doctor, one of the reasons
17 you have a battery of these laboratory tests is that none of
18 them is obviously a test with a human, and so none of them
19 actually correlates directly to the human, is that right?
20 A. No, that is not right. If they don't correlate
21 to the human, you shouldn't use them. But your point, I
22 think, what you mean is it is not a human, and so no matter
23 what you get out of that animal test, you are not going to be
24 100% sure that that is going to be applicable in humans. Is
0125
 1 that --
2 Q. Okay, and so some of the biological activities
3 tests, well, first of all, the government, for instance,
4 United States government, hasn't set forth a group of
5 biological activity tests that should be performed on
6 cigarettes, is that right?
7 A. Not on cigarette smoke, yes, it is under
8 discussion.
9 Q. And some of this is being discussed in the wake
10 of something called the I.O.M. Report, what is that,
11 Institute of Medicine?
12 A. Yes.
13 Q. And they are talking about, actually the I.O.M.
14 Report didn't specifically set forth different tests that
15 should be done, but suggested that there should be a battery
16 of tests that are applied to cigarettes, is that right?
17 A. They illucidated principles of what those tests
18 should be and how they should be run, so that the information
19 would be useful to make safer cigarettes.
20 Q. Okay, but back at the time you were at Philip
21 Morris, there was not a battery of tests that the government
22 prescribed or suggested to do on cigarettes, is that right?
23 A. Well, I don't know the government, the government
24 has never prescribed tests for cigarette smoke as far as I am
0126
 1 aware, other the Federal Trade Commission.
2 Q. Okay. And you have talked about, at least you
3 talked in some depth about one of the types of biological
4 activities tests that was done at Philip Morris when you were
5 there, the mutagenicity test?
6 A. Yes, I did.
7 Q. And there were other biological tests that were
8 done at Philip Morris during the time that you were there,
9 doctor, is that right?
10 A. Yes.
11 Q. There was cytotoxicity test?
12 A. That is correct.
13 Q. And cytotoxicity test measured cell death, is
14 that right?
15 A. Cell death, usually more related to COPD than to
16 cancer or mutation, yes.
17 Q. And just so the record is clear, COPD --
18 A. Chronic Obstruction Pulmonary Disease.
19 Q. And there were inhalation tests done, is that
20 right?
21 A. That's right.
22 Q. And one kind of inhalation test is called an
23 acute inhalation test?
24 A. Acute means it is done for a short period of
0127
 1 time.
2 Q. And there is another kind called chronic, is that
3 right?
4 A. That's right.
5 Q. And there were also tests called mouse skin
6 painting tests, which you talked about yesterday?
7 A. Yes.
8 Q. And those are the ones where you shave the skin,
9 shave down to the skin of a mouse and apply tar to the skin,
10 is that right?
11 A. Yes.
12 Q. And if you did, tumors result?
13 A. Yes.
14 Q. That is also called a tumorigenisity test?
15 A. It is a type of tumorigenisity, yes.
16 Q. And you would use all these, you took the
17 information from all these tests together, to come to
18 conclusions about the cigarettes that you were working with
19 or any changes in the cigarettes that you were working with,
20 is that right?
21 A. Well, the ones we talked about gives you
22 information about different aspects. So I don't know that
23 you would always take them together. But I generally combine
24 the principles that you use all of that information to get as
0128
 1 much idea as to whether you are making something that has
2 less toxicity or greater.
3 Q. Okay, but you try to get the information from all
4 those tests together, and then make judgments based on all
5 the information, is that right?
6 A. Yes, I think the principles that I have seen, and
7 I think we put one of those up on the board, or put it in
8 yesterday, which I agreed with, Philip Morris does now, is
9 that whatever changes you make should never score higher in
10 any of the tests. It should be equal to what it is, or
11 less. And I think that is what we are talking about here.
12 Q. Okay. And you have recognized, I think you said
13 it yesterday, but say for instance you have a higher score,
14 just because you have activity in one of the battery of
15 tests, wouldn't prevent you from going ahead with whatever
16 change in the cigarette resulted in that activity, as long as
17 over all the harm is reduced, is that right?
18 A. I'm not quite sure. I mean, depends on if that
19 activity is unique for that test, I mean, I think what we are
20 talking about, you know, if you get a score on a mutations
21 test, I think one point is, well, you don't really know that
22 that mutation is going to lead to increased cancer. But what
23 you do know is it leads to increased mutation, and that is
24 not good.
0129
 1 So I don't know that if your score on a mutagenicity
2 test was extremely high, and then you went ahead and did a
3 carcinogenicity test on mice and it came out relatively low,
4 that that would give you a heck of a lot of comfort. You
5 might say, okay, that particular model has maybe a little
6 less cancer, but we are going to cause mutations like
7 crazy.
8 But that may be a bad example, because they correlate
9 pretty well, but I just want to make the point that you have
10 to look at what each test is telling you.
11 Q. Okay. You have recognized, I think, and just
12 correct me if I am wrong, doctor, that even if smoke were
13 more mutagenic, more mutagenic smoke might still be safer, if
14 the smoker is taking in less of it?
15 A. Oh, sure. Because the over all dose of chemical
16 that you are delivering would be reduced.
17 Q. Let's talk a little bit about mutagenicity,
18 specifically, which you talked about yesterday, doctor.
19 Mutagenicity refers to, comes from mutation,
20 basically? Mutation is the root of that word, is that
21 right?
22 A. Yes.
23 Q. Which means changes, right?
24 A. Well, means changes in living cells.
0130
 1 Q. So when you are talking about mutagenicity, you
2 are talking about taking cells, and putting them in a test
3 tube or some laboratory equivalent, exposing them to
4 something, and seeing what the effect is on those cells?
5 A. Well, that is a cell level mutagenicity test.
6 You can do it with mice, too. You can do it on animals,
7 actual mutagenicity tests, as I have done before, for
8 products.
9 Q. You are getting ahead of me. But one, one of the
10 tests that you talked about, in fact the test that you talked
11 about at Philip Morris taking place, is a mutations test
12 related to the Salmonella bacteria, is that right?
13 A. Right, that is a test tube, petri-dish type test
14 we described yesterday.
15 Q. And you take a bacteria that is called
16 Salmonella, is that right?
17 A. Yes.
18 Q. And that is the bacteria that we have all heard
19 about, right?
20 A. Specific species of Salmonella, right.
21 Q. Okay, and you deal with that particular bacteria,
22 see if a substance from smoke has an effect on those cells,
23 is that right?
24 A. That's right.
0131
 1 Q. Okay. There are other types of mutagenicity
2 tests, is that right?
3 A. Yes.
4 Q. Well, actually, there are different strains of
5 Salmonella you can use in a Salmonella mutagenicity test, is
6 that correct?
7 A. That's correct.
8 Q. You can get different results based on different
9 strains that you used?
10 A. That is why you have to calibrate the tests,
11 right.
12 Q. And then there are different kinds of
13 mutagenicity tests that you can do, beyond the Salmonella
14 mutagenicity test?
15 A. That's correct.
16 Q. And you mentioned one relating to mice, is there
17 a name for that one?
18 A. I don't recall a special name, but we were doing,
19 it is done, the name is usually the number of generations you
20 look at. You look for fetal deformaties and then you look
21 for cell changes, DNA, measurements of subsequent
22 generations. I don't think there is a specific name.
23 Q. Okay. There are mutagenicity tests that use
24 mammal cells, is that right?
0132
 1 A. At the cell level, that's correct.
2 Q. Okay. There are mutagenicity tests that use
3 other bacteria, other than Salmonella, is that right?
4 A. Yes.
5 Q. Like the yeast mitotic? Did I say that right?
6 A. Yes, but that is not a bacteria, but, yes.
7 Q. And the Ames test is one that uses Salmonella?
8 A. Right.
9 Q. And you can get different results in the same
10 substance in each of those different mutagenicity tests, is
11 that right?
12 A. Well, yes. You calibrate each of those by doing
13 dose response for chemicals that are known to cause problems
14 in man. Then, if you don't get that same dose response from
15 that test, you don't use it, because it is not going to
16 correlate to what happens in man.
17 Q. And a mutagenicity test does not tell exactly
18 what is going to happen in a human, is that right?
19 A. I can agree with that.
20 Q. Okay. There is not a correlation between a
21 mutagenicity test and what happens in a human, is that
22 right?
23 A. No. There is a correlation, it doesn't tell you
24 exactly what happens. Correlation means that there is a
0133
 1 dose response in the test that corresponds to a dose response
2 in man. It does not mean that every change that you see in
3 that test is due to that particular dose response. I hope I
4 am being clear.
5 Q. Okay, a mutagenicity test is referred to as a
6 pre-screening test, is that right?
7 A. For cancer.
8 Q. Yes, is that right?
9 A. For cancer, that is true.
10 Q. You do a mutagenicity test, and if you get an
11 active result or a mutagenic result, then you should test
12 further, is that right?
13 A. Not for mutagenicity, for cancer. I mean, for
14 mutagenicity you can say you are going to test further, but
15 you would be very, very -- I mean, right now, with EPA, for
16 example, if you fail the Ames test, and you get a very high
17 score on that test, and you are putting a new chemical into
18 the environment, they are probably not going to let you do
19 it.
20 I mean, I know, because we do this as a matter of our
21 business. Because that is, in and of itself, as being a
22 sufficient warning that unless you can prove that it is not
23 damaging to man, the shoe gets on the other foot when that
24 happens. All of a sudden, instead of being -- You are guilty
0134
 1 until proven innocent, put it that way.
2 Q. But the Ames test, the Ames mutagenicity test
3 that you talked about yesterday, isn't predicting cancer, is
4 that right, doctor?
5 A. It predicts tumors in mice, but it doesn't
6 predict cancer in humans necessarily. It is supposed to be
7 related to cancers --
8 If you take carcinogens that are known to cause
9 cancer in humans, and you put them in that test, you will get
10 a relationship that you can use for that carcinogen in the
11 product that would be predictive of cancer in humans, such as
12 benzene causes leukemia in humans. If I find a dose response
13 to benzene in the Ames test, testing levels of Benzene, that
14 is going to be predictive of leukemia for humans. So it can.
15 Q. Okay, doctor, do you agree that the fact that one
16 cigarette brand tests higher or lower in a mutagenicity test,
17 doesn't correlate to that brand causing more or less disease
18 in humans?
19 A. Well, the word correlate, depends how well it has
20 been defined. I would say that that would be greatly, I
21 would be greatly concerned about that. You can't say, I
22 think, to a 90% probablity, it is going to cause a problem in
23 humans. You can't say that.
24 Q. Can you say, you also, doctor, isn't it also
0135
 1 true, that there is no such correlation between how a
2 cigarette brand tests in a mutagenicity test and the cause of
3 disease in humans?
4 A. No, that is absolutely not true.
5 Q. Doctor, you testified in this case in a
6 deposition, is that right? A couple depositions?
7 A. Yes, I did.
8 Q. You testified in one on July 30th, of last year,
9 is that right?
10 A. Yes.
11 Q. And at that deposition, did I ask you the
12 question --
13 MR. TILLERY: Excuse me, page and lines, please.
14 MR. LOMBARDI: Page ninety, line seventeen.
15 MR. TILLERY: Okay.
16 MR. LOMBARDI: Do you agree, Dr. Farone, that the
17 fact that one cigarette brand tests higher or lower in
18 mutagenicity tests doesn't correlate to that brand causing
19 more or less disease in humans? Do you remember me asking
20 you that question?
21 A. Yes, you asked that question in many depositions.
22 Q. And your answer was no, no such correlation has
23 been established, if that is -- I think we have said that
24 before?
0136
 1 A. Are we talking about cancer? Are we talking
2 about mutation or what? COPD?
3 Q. The question was, the fact that one cigarette
4 brand tests higher or lower in a mutagenicity test, doesn't
5 correlate to that brand causing more or less disease in
6 humans?
7 A. No brand epidemiology has ever been done, okay.
8 So we don't know whether Marlboro causes more cancer than
9 Winston. If we knew that --
10 Q. Excuse me, doctor, my question wasn't about
11 epidemiology, it was about mutagenicity.
12 A. No, but you have to know how the brands cause
13 disease in humans before you can correlate brands. That is
14 different than correlating smoke out of cigarettes with
15 chemical toxins. That question is specific to brands. And
16 of course, unless we had brand specific epidemiology, there
17 is no test --
18 THE COURT: Repeat that question again.
19 MR. LOMBARDI: I will just put it up on the screen.
20 Do you agree, Dr. Farone, that the fact that one cigarette
21 brand tests higher or lower in a mutagenicity test, doesn't
22 correlate to that brand causing more or less disease in
23 humans? No, no such correlation has been established. If
24 that is, I think we have said that before.
0137
 1 Did you give that answer to a question at a
2 deposition?
3 A. Keep going.
4 Q. I will, but did you give that answer?
5 MR. TILLERY: Lets see his full answer.
6 MR. LOMBARDI: Is it correct so far?
7 A. It is correct so far, brands, specifically
8 limited to brands.
9 MR. LOMBARDI: And that was the question I was
10 asking. Because you gave testimony about Marlboro Lights and
11 Marlboro in this case, didn't you?
12 A. But I was talking about the smoke from those
13 cigarettes.
14 Q. Well, doctor, but my question for you is
15 mutagenicity tests do not correlate to brands causing more or
16 less disease in humans, and the answer to that is no, is that
17 right?
18 A. Well, I think I can agree with you on this, no
19 one has ever proved that Marlboro causes more cancer directly
20 than Marlboro Lights. Because that epidemiology hasn't been
21 done, which is what you need to do to prove it. I would like
22 to see the rest of the question.
23 Q. I am going, I was just going to change the page,
24 doctor. But I just wanted to make sure we were clear on the
0138
 1 record, there is no correlation between mutagenicity test
2 results and disease causation on humans, on a brand specific
3 basis?
4 A. On a brand specific basis, I agree.
5 Q. Let's go on, and we will read as much of it as
6 you want, doctor.
7 You said no, no such correlation has been
8 established. I think we have said that before, but it does
9 increase an indication of the total load, if you will, on the
10 system.
11 See, the trouble with cigarette smoke is, you are not
12 dealing with a single, defined chemical, it is a mixture.
13 That is what we are talked about earlier.
14 A. Yes. Keep going.
15 Q. And if you can start to establish, as we tried at
16 Philip Morris, which chemicals within the mixtures are
17 responsible for that, then you are getting some place.
18 For example, if you compare acetaldehyde with
19 benzene, we know in humans which of those causes cancer to a
20 higher degree. And so, if you then look at the, your
21 chemistry, like the mutagenicity test, you say this one is
22 scoring higher, and oh, it has got more acetaldehyde in it,
23 see that is the information that then leads you to conclude
24 that it is worse?
0139
 1 A. Okay, and this, just so you understand, I am
2 pointing out how you use it in the absence of being able to
3 use it for specific brands. This is just a general chemistry
4 of how you use that test. And so if you know the smoke
5 chemistry and you know the smoke test, you can make that
6 determination, as I said. But you cannot conclude for
7 brand, because we don't have cancer by brand.
8 Q. And, doctor, you went through a series of
9 documents that reflected mutagenicity testing at Philip
10 Morris, is that right?
11 A. That's correct.
12 Q. And this is from your Exhibit H, I'm not sure
13 what the -- Number twenty?
22 MR. LOMBARDI: Judge, have you been able to find
23 that? Now, this is #20, a group exhibit, 1977 memo.
24 THE COURT: Okay, I have got it, I'm sorry.
0140
 1 MR. LOMBARDI: It is, again for the record, Your
2 Honor, it is a November 29th, 1977, memo, to a Dr. R. A.
3 Pages, from J. Booker and S. Drew, is that right, Dr. Farone?
4 A. That's correct.
5 Q. Okay. This is one of the documents you talked
6 about yesterday?
7 A. Yes, it is.
8 Q. And it was talking about testing in a
9 mutagenicity test, is that right?
10 A. Yes, the purpose is described in the first
11 paragraph, underneath the sample.
12 A. Okay. And in, right, and the samples are set
13 forth in that first, right under that first paragraph, with
14 some description of the samples, is that right?
15 A. Correct.
16 Q. And by sample, we are talking about a type of
17 cigarette that was used to create the smoke condensate which
18 was then put into the test, is that right?
19 A. That's right.
20 Q. Okay. And I think you talked specifically about
21 a few of these, but one of them was the top sample on the
22 list there, X5D7CIF, is that right?
23 A. Well, I talked about the two that are part of the
24 purpose, the CIF and the CIG are the purpose of this test.
0141
 1 Q. Okay, well, I just taking them one at a time,
2 doctor, but you refer to them by the last three letters?
3 A. Right.
4 Q. And the top one would be the CIF, is that right?
5 A. Right.
6 Q. And what kind of cigarette was the CIF?
7 A. CIF is a cigarette with no dilution.
8 Q. Okay. And it says that right over in the
9 description, no filter or dilution?
10 A. That's correct.
11 Q. And then CIG is the cigarette one in the table,
12 is that right?
13 A. Yes.
14 Q. And what type of cigarette was that?
15 A. High porosity paper, filter, dilution.
16 Q. High porosity paper refers to what, doctor?
17 A. The paper that is used to wrap the filler has
18 more holes in it, so the air can come in through holes and
19 gases can escape through those holes.
20 Q. So the paper here is high porosity paper, is that
21 right?
22 A. Uh-huh.
23 Q. And then it says it had a filter, is that right?
24 A. Yes.
0142
 1 Q. And it had dilution, is that right?
2 A. That's correct.
3 Q. Now, how much dilution did the CIG have?
4 A. Well--
5 Q. Do you know off the top of your head?
6 A. I would have to go back. Some of these vary.
7 20%, some are 40%.
8 Q. Well, just stop, first --
9 A. I think it is in the subsequent one, because the
10 subsequent one we discussed, I compared CIG with CII, where
11 the only difference was the dilution. I think it tells you
12 on that one, what the dilution --
13 Q. Well, lets just stay with this one for right
14 now. Just looking at this document, you don't know what the
15 dilution of the CIG is, is that right?
16 MR. TILLERY: Well, he said if you show him another
17 document, I object to that.
18 MR. LOMBARDI: And I asked him, just looking at this
19 document, you don't know, doctor, is that right?
20 THE COURT: Overruled.
21 A. I don't see it listed.
22 MR. LOMBARDI: Okay, there is no listing of the
23 dilution on this document, and while you think you can figure
24 out the dilution of the CIG from another document, you don't
0143
 1 know it off the top of your head as you are sitting here
2 right now, is that right?
3 A. That's correct. This document was incorporated
4 into the report of that year. As was the other document.
5 But yes, that is correct.
6 Q. And there are different, just so everybody
7 understands, there are different levels of dilution that you
8 can use with a cigarette, is that right?
9 A. That's correct. All the way from zero all the
10 way to virtually 100%.
11 Q. That's right. The Cambridge cigarette that you
12 talked about, the lowest Cambridge cigarette from 1980,
13 remember that one?
14 A. Right.
15 Q. That one had almost 100% dilution, is that right?
16 A. Ninety-eight to ninety-nine.
17 Q. I was going to say ninety-seven, but I'll take
18 ninety-eight to ninety-nine. But there is a wide variety of
19 dilution, is that right?
20 A. That's correct.
21 Q. And the dilution, the extent of the dilution can
22 have an effect on the type of condensate that you get from a
23 particular cigarette, is that right?
24 A. Yes. And on the result of the Ames test, we saw
0144
 1 a document yesterday that gave the, you know, the filter
2 accounts for about 20% of that. And as you start diluting,
3 it goes up very quickly, to a very high level, and it levels
4 off.
5 So if you go back 45% dilution, it doesn't change it
6 much, which is the reason we wanted to go up to above ninety
7 or ninety-five or ninety-nine for the Cambridge.
8 So, yes, that changes all the way along that curve.
9 But it increases most rapidly when you start diluting in the
10 range of 10% to 20%.
11 Q. Well, incidentally, doctor, did you present any
12 evidence yesterday of this leveling off that you are
13 referring to, when dilution got above 55%?
14 A. Well, yes, the data shows that. Because in the
15 data, we presented on Marlboro Lights versus Marlboro. That
16 difference is about 20%. And the difference, and that is a
17 difference of 10% to 20% dilution. And some of these I know
18 are near 50% dilution. It is virtually no different at that
19 higher level of dilution, maybe another 5%.
20 And we showed a table out of a report where it said
21 that the filter was, filter efficiency was responsible for
22 15% of the total activity. And I think it was 7.8% or 7.9%
23 for dilution alone. This is all covered in those documents
24 that we presented yesterday.
0145
 1 Q. Okay, well, in this document, doctor, there would
2 be no argument, would there, between the two of us, about the
3 fact that it would be important to know the percent of
4 dilution in order to draw conclusions about what that
5 dilution meant to mutagenicity?
6 A. Not for the purpose for which I used it. What I
7 was using this for was to show that all diluted cigarettes,
8 every time dilution is mentioned in every one of these
9 cigarettes, it is always more mutagenicity. And we
10 culminated that whole series of discussions with the actual
11 differences between Marlboro Lights and Marlboro. None of
12 these are Marlboro Lights and Marlboro.
13 Q. I understand that.
14 A. Because we weren't allowed to do that test. You
15 understand, at the time, it was not allowed. So you have to
16 infer that difference here.
17 But Philip Morris has now done that test, and all of
18 these results are 100% totally consistent with the results
19 that Philip Morris obtained in the year, whatever that was,
20 2000.
21 Q. My only question, simple question, though,
22 doctor, and I guess maybe we don't agree on this. My
23 question is, is it important, in drawing conclusion about the
24 effect of dilution on mutagenicity, to know the amount of
0146
 1 dilution in the cigarettes that are being tested?
2 A. Okay, it is important to know how, if you want to
3 describe a relationship between the amount of dilution and
4 the Ames test score, mutagenicity, that is very important to
5 know.
6 If you only want to know whether or not dilution
7 causes an effect, then it either has dilution or it doesn't.
8 And we can go back and look at all scores, but I didn't think
9 that was necessary because we showed a specific test, in
10 duplicate, of Marlboro Lights versus Marlboro, to show that
11 it went along with all this.
12 Q. Okay, and the testing that you are referring to
13 right now is testing that was done in the 1990's at Philip
14 Morris, is that right?
15 A. I think the date was 2000, actually.
16 Q. I have a problem with the turn of the century,
17 apparently, doctor.
18 A. Okay.
19 Q. It was recent testing, though?
20 A. Yes.
21 Q. And that is not testing that you were personally
22 involved in, is that right?
23 A. That's correct.
24 Q. Okay. And doctor, you talked about another
0147
 1 reference to cigarettes, that is the CIG, we just looked at
2 the CIG and the CIF. The CIG, you don't know the dilution of
3 that at the moment?
4 A. Out of this document, at the moment, that's
5 correct.
6 Q. You also talked about another test cigarette
7 called the AKJ, is that right?
8 A. And that is different in this than it is in the
9 other test. In the other test, I think that is 47% dilution,
10 if I recall correctly.
11 Q. Okay, 47% dilution?
12 A. Yes.
13 Q. And is it 47% dilution in Exhibit #20-H, that you
14 are referring to?
15 A. It doesn't tell you any of the dilution, that I
16 am aware of.
17 Q. Do you know what the dilution of Marlboro Lights
18 cigarettes is?
19 A. About twenty some odd percent.
20 Q. And the AKJ was 47% or above, you thought?
21 A. That's correct.
22 Q. You also, doctor, in the course of your testimony
23 yesterday, showed us some results of mouse skin painting
24 studies related to the AKJ test, is that right?
0148
 1 A. Yes.
2 Q. And the mouse skin painting studies related to
3 the AKJ, you reported, showed an elevated tumor rate, is that
4 right?
5 A. And I pointed out it was consistent with the AKJ,
6 with WS14, and the second test of the AKJ. There were
7 essentially three numbers from which you could infer that it
8 was statistically quite a bit larger than the un-diluted
9 cigarettes.
10 Q. Well, doctor, you are not a big fan of the mouse
11 skin painting tests, is that right?
12 A. No, I think the mouse skin painting test is
13 useful. It has its limitations with regard to situations
14 with ionic strength of the nitrate affect, that we have
15 talked about before, because when you put things on your skin
16 -- You can make a soap bar that will not remove things from
17 your skin, it is called Dove. And I can make one regular
18 soap that does. And one irrates you and one has got a much
19 lesser amount of irritation.
20 So the mouse skin painting has been very useful over
21 the years, it is sort of the gold standard. All I'm saying
22 is we have to be very careful that we understand the skin
23 irritancy of the stuff we put on there, because that can
24 increase the penetration of the chemicals in the tissue and
0149
 1 give you an elevated effect. And it can also give you a
2 retardation -- If I put what is known as an isotonic solution
3 on a mouse's skin, and put a carcinogen on there, it wouldn't
4 go into his skin.
5 Q. Okay. The AKJ, well, you actually, doctor, you
6 have said before that in terms of the battery of tests, after
7 you did a mutagenicity test, you would preferably, from your
8 point, go to an acute inhalation study, is that right?
9 A. Well, inhalation study, acute and then long term,
10 yes.
11 Q. Did you do any looking around to see what the
12 results for AKJ cigarettes were in acute inhalation studies?
13 A. I think we did, I think I did. I believe the
14 general set of that stuff at the time was referenced in that
15 Dr. Sullivan memo. But maybe not specifically. But it does
16 list results in different types of testing, including
17 inhalation.
18 Q. Is it true that the AKJ comes out to be three
19 times less toxic under the acute inhalation study than the --
20 A. Well, the acute inhalation is not the key, it is
21 the chronic inhalation.
22 Q. We are just talking about the acute inhalation?
23 A. Okay, well, I would disagree with that. Because
24 acute means you can't measure cancer, you just measure
0150
 1 mutation. That is just an irritant.
2 Q. Okay. Doctor, as I understand it, your testimony
3 yesterday, and correct me if I am wrong, because I don't mean
4 to be imprecise, but just correct me if I am wrong.
5 You testified that Marlboro Lights are more dangerous
6 than Marlboro Regulars, is that right?
7 A. That's correct.
8 Q. Okay. Have you ever testified to that before?
9 A. I think I have testified that light cigarettes,
10 with those small changes, are more dangerous, because they
11 lead people to a false sense of security, thinking that this
12 difference is bigger. And that is the same conclusion, by
13 the way, reached in Monograph 7, we were just looking at
14 that.
15 The claims, light, lighter and all of that, are
16 easily misleading people.
17 Q. Okay, my specific question is, doctor, in all the
18 time you have testified in these cases, have you ever
19 testified that Marlboro Lights cigarettes are more dangerous
20 than Marlboro Regulars?
21 MR. TILLERY: Other than what, he is just repeating
22 the question. He just answered it, I object.
23 A. Let me try a different way.
24 THE COURT: Maybe he --
0151
 1 MR. LOMBARDI: Maybe he can give me a yes or no.
2 A. Well, I have testified many times. The analogy I
3 used for shooting bullets at people, I shoot a hundred
4 thousand bullets, you are a cell, and I shoot a hundred
5 thousand bullets at you. Now I say, what is the probablity
6 that you didn't get hit.
7 And now I reduce it a little bit, like the difference
8 between Marlboro Regular and Marlboro Lights, so I reduce it
9 by 70%. That is a big reduction, not like the small one in
10 Marlboro Lights.
11 Now you have only got thirty thousand bullets headed
12 your way. Do you feel better? Do you feel a lot safer with
13 thirty thousand bullets?
14 The point is that it is a reduction, but my testimony
15 consistently, from the very beginning, has been that the
16 reduction needs to be large and significant. So in my
17 opinion, I have never used the words Marlboro Lights and
18 Marlboro Regulars before, I will give you that, but my
19 opinion is a slight reduction in tar can be misleading.
20 Doesn't mean you ought not to do it, I agree with Dr.
21 Benowitz, I agree with everybody, the lesser is better. But
22 if somebody really thinks they are not going to get cancer
23 from Marlboro Lights, or they are going to get it at a
24 significantly reduced rate, then that is not right.
0152
 1 Q. And that is why we have the same warnings on
2 Marlboro Lights as we do on a Marlboro Regular, correct,
3 doctor?
4 MR. TILLERY: I object to him asking for a legal
5 conclusion about why.
6 MR. LOMBARDI: I withdraw the question, then.
7 Doctor, you do know that the warning that goes on a Marlboro
8 Lights is exactly the same as that that goes on a Marlboro
9 Regular?
10 A. We discussed before about the propriety of what
11 information you share, make sure people understand what that
12 means. Which by the way is also discussed in Monograph 7.
13 Q. Okay, well, doctor, you understand that
14 government prescribes what is to be said in the warnings?
15 A. Yes, I do.
16 Q. They tell you where to put the warnings?
17 A. That's right.
18 Q. They tell you the size of the warnings?
19 A. They do.
20 Q. And the warning on Marlboro Lights says smoking
21 causes cancer and other diseases, the same way that smoking
22 from Marlboro Reds does, is that right?
23 A. Yes, it does.
24 Q. And you did just say, didn't you, doctor, you
0153
 1 have always said that there are reductions, there are
2 reductions when you get to low tar cigarettes, right?
3 A. I think I explained it fairly well, yes, there
4 are reductions. And I'm not indicating that people should
5 smoke higher yield cigarettes. It is just what that amount
6 of reduction means to the smoker.
7 Q. Okay. By the way, doctor, have you ever written
8 an article in a peer review journal, that says that low tar
9 cigarettes are actually more dangerous than higher tar
10 cigarettes?
11 A. Well, that tobacco control thing that we talked
12 about yesterday, is one of the first that I have done.
13 Q. Okay. That didn't go through scientific
14 evidence concerning the relative safety of low tar and high
15 tar, is that correct?
16 A. It talked about the misleading nature of Lights.
17 Q. Well, it talked about the terms, isn't that
18 right?
19 A. Well, and why they were misleading in and of
20 itself. Before you even get into the scientific nature.
21 Q. Okay, but the scientific nature is not the focus
22 of that article, is that right?
23 A. Oh, no, I talk about the levels of --
24 THE COURT: Excuse me, are we talking about this
0154
 1 article that was not admitted?
2 MR. TILLERY: Yes, would you like to see the
3 article?
4 THE COURT: No, I am going to see where he is going
5 with it.
6 MR. LOMBARDI: Did you finish your answer?
7 A. No, I forgot the question.
8 THE COURT: Repeat the question, I interrupted.
9 A. That's alright.
10 MR. LOMBARDI: Doctor, you talk about --
11 MR. TILLERY: Your Honor, I would like, on the record
12 there is a question, and it was interrupted, and the question
13 was whether you went through any scientific analysis for
14 purpose of that study.
15 A. No, no, it had to do with whether there was
16 analysis of risk. That article talks about carcinogens in
17 smoke. It talks about minimum doses to make it really
18 safe.
19 And what it says is that before you call something a
20 light or low tar or whatever, you should reduce the chemicals
21 to the level known by scientists to cause the minimum
22 reduction of harm. There are limits that are known by
23 scientists that below which the risk is one in one hundred
24 thousand. That is what I talk about.
0155
 1 MR. LOMBARDI: Did you specifically, in that article,
2 talk about Marlboro Lights versus Marlboro Regulars?
3 A. I don't think, no, I didn't.
4 Q. Did you talk about specific brands in that
5 article at all?
6 A. Yes, I did.
7 Q. In terms of safety?
8 A. Well, in terms of the implied safety and
9 discussion of what it would take to make them safe, yes.
10 Q. How about in terms of the scientific proof
11 concerning safety?
12 A. I think that article describes the response stuff
13 which I just talked about, which would be scientific proof.
14 If you get alcetaldehyde in a pack of cigarettes,
15 pack a day smoker, down below ninety micrograms per day of
16 exposure, I think you could quite say, that in terms of
17 acetaldehyde, anyway, it is safe. Safe is still not defined
18 as risk free. Safe is defined as a risk of no greater than
19 one in one hundred thousand people getting cancer.
20 In other words, less than --
21 Q. Let me just ask you this, doctor. Is that
22 article the only article that you have done that, I guess,
23 says that light cigarettes are more dangerous than regulars?
24 A. No, I have given talks and articles on that. It
0156
 1 is the only peer reviewed one.
2 Q. Right. And are you aware, you are aware of the
3 fact that Monograph 13, you know what Monograph 13 is?
4 A. Yes.
5 Q. Okay, Monograph 13 is that document that you are
6 a reviewer for, is that right?
7 A. Yes.
8 Q. And that is the document that came out within the
9 last, what is it, year or so?
10 A. Right.
11 Q. And that document talks about light cigarettes,
12 is that right?
13 A. It does.
14 Q. Okay. And that document does not conclude that
15 low tar cigarettes are more dangerous than higher tar
16 cigarettes, is that right?
17 A. Well, that document doesn't say it is certainly
18 no safer.
19 Q. It doesn't say that low tar cigarettes are more
20 dangerous than higher tar cigarettes, is that right?
21 A. I would have to go back and look through the
22 whole thing. It doesn't say it in that way. It doesn't say
23 lights are more dangerous than regulars, I am sure of that.
24 Q. And that is what has been referred to in this
0157
 1 courtroom as a consensus document, is that right?
2 A. Yes, but it doesn't say at Monograph 7.
3 Q. In Monograph 13, the consensus document that has
4 been referred to in this courtroom --
5 A. Right.
6 Q. It doesn't say that lights are more dangerous
7 than regular cigarettes, is that right?
8 A. I would have to go back through the whole thing.
9 I think you are right, it doesn't say it in those words. It
10 just says that is misleading and there is no benefit. I
11 don't remember an exact sentence that uses the word more
12 dangerous.
13 Q. In fact, the way the Monograph is worded is that
14 there is no convincing evidence that the changes in cigarette
15 design have resulted in a decrease in health burden, is that
16 right?
17 A. That is certainly, yes.
18 Q. And the Monograph is based on, well, strike the
19 question.
20 Epidemiology, doctor, you said, is the gold standard,
21 you said, I think, for determining health and safety of
22 cigarettes, is that right?
23 A. Yes.
24 Q. And epidemiology, you have actually called it the
0158
 1 ultimate arbitor of whether one cigarette is safer than
2 another?
3 A. That's correct.
4 Q. And the epidemiology was going on at the time
5 you, that you were at Philip Morris, is that right?
6 A. Epidemiology is always going on, as people are
7 exposed to things, and that information can be used to
8 conclude whether or not those exposures cause problems.
9 Q. And the epidemiology I am referring to, that is
10 the epidemiology done by scientists outside Philip Morris, is
11 that right?
12 A. Yes, CPS II I think was going on at the time.
13 Q. And there were other studies going on?
14 A. Yes.
15 Q. And the Surgeon General, while you were at Philip
16 Morris, reported on epidemiology, is that right?
17 A. Well, they used it as part of the Surgeon
18 General's report on smoking. If that is what --
19 Q. And you certainly looked at the Surgeon General's
20 report on smoking when you were at Philip Morris, is that
21 right?
22 A. I did.
23 Q. Doctor, I am handing you the 1979 Surgeon
24 General's report, and I'm not going to make you look at the
0159
 1 whole thing. Doctor, I'm going to refer you to a specific
2 page, and, Your Honor, I don't have a copy for you, but I
3 will show you on the screen.
4 Doctor, you have seen the 1979 Surgeon General's
5 report before, is that correct?
6 A. That's correct.
7 Q. And this is a report that you saw when you were
8 at Philip Morris, is that right?
9 A. That's correct.
10 Q. And it was a report that was important to you,
11 because at the time you were working on cigarette design, is
12 that correct?
13 A. That's correct.
14 Q. If you look at page 114, I will get it up here on
15 the screen for you, doctor, if it is easier, 7076.43, is it
16 easier, I will blow that up for you.
17 But you are familiar with the Surgeon General's
18 report, expressed conclusion in numbered form at the end of
19 chapters, or the beginning of the document, is that right?
20 A. That's correct.
21 Q. Okay, we will blow this up. Is this one of the
22 conclusions that was expressed and that you remember seeing
23 in the 1979 Surgeon General's report?
24 A. Yes.
0160
 1 Q. And the conclusion is smokers of low tar and
2 nicotine cigarettes experience less risk for coronary heart
3 disease than smokers of high tar and nicotine cigarettes.
4 But their risk is considerably greater than that of
5 non-smokers, is that right?
6 A. Yes. And that was based on reduction from 1950
7 to, obviously, that time. Not based on things that happened
8 after, about 1960, because of the twenty year lag. And I
9 digress.
10 Q. Isn't it true, doctor, this is a document that
11 you saw, when you were working at Philip Morris in 1979?
12 A. That's correct.
13 Q. Lets go to 7076.45. And the first highlight,
14 this deals with lung cancer, doctor.
15 The risk of developing lung cancer decreased with
16 increasing dosages of smoking as measured by number of
17 cigarettes smoked per day, duration of smoking, age of
18 initiation of smoking, degree of inhalation, tar and nicotine
19 content of cigarettes smoked, and several other measures.
20 Do you see that?
21 A. Yes, that is the dose response we are talking
22 about.
23 Q. Right.
24 A. Two packs giving more cancer than one, gives you
0161
 1 more cancer than, and that is the same like for the Ames
2 test, that is the dose response.
3 Q. Okay, dose response is what we talked about that
4 was first established back in the '50's?
5 A. Right.
6 Q. And you still believe that there is dose response
7 established even as of today, is that right?
8 A. Yes.
9 Q. And you still believe that the idea of less tar
10 based on that dose response relationship is a good thing, is
11 that right?
12 A. With equal tar, with same toxicity tar, less is
13 better. We always have to make sure it is same toxicity.
14 Q. Okay. Paragraph four, please. Use of filter
15 cigarettes and smoking of cigarettes with lower amounts of
16 tar and nicotine decrease lung cancer mortality rates among
17 smokers. However, these rates are significantly elevated
18 compared to rates for non-smokers. Do you see that?
19 A. I do.
20 Q. Okay. And that was a conclusion the Surgeon
21 General was coming to at the time you were at Philip Morris,
22 in 1979?
23 A. Correct.
24 Q. There was another Surgeon General's report,
0162
 1 doctor, handing you what has been marked as Exhibit #7078,
2 and this is the 1981 Surgeon General report, is that right?
3 A. That's correct.
4 Q. Okay. And the 1981 Surgeon General report also
5 came out while you were at Philip Morris?
6 A. That is true.
7 Q. And the 1981 Surgeon General's report went
8 through the epidemiological studies related to smoking, is
9 that right?
10 A. That's correct.
11 Q. And the 1981 Surgeon General's report came to the
12 conclusion that todays filter tip, lower tar nicotine
13 cigarettes produce lower rates of lung cancer --
14 Actually, lets go to the paragraph before that one.
15 Todays filter tip, lower tar and nicotine cigarettes produce
16 lower rates of lung cancer than do their higher tar and
17 nicotine predecessors.
18 Nonetheless, smokers of lower tar and nicotine
19 cigarettes have much higher lung cancer incidents and
20 mortality than do non-smokers.
21 Do you see that?
22 A. I do.
23 Q. And this was a conclusion of the Surgeon General
24 that you saw at the time you were at Philip Morris, is that
0163
 1 correct?
2 A. That's right.
3 Q. And actually you have said that you were greatly
4 encouraged by that kind of reporting, is that right?
5 A. That's right. Because my job was along those
6 lines. And actually very encouraged by these, because these
7 are the motivation behind the original Cambridge, to take the
8 tar and nicotine as low as we possibly could, zero.
9 Q. And that is something that Philip Morris actually
10 put on the market, is that right?
11 A. Yes, and then replaced with a higher tar one.
12 Q. When it didn't sell?
13 A. But they still replaced it with one that they
14 knew, according to the Surgeon General, would cause more
15 toxicity.
16 Q. That's fine, doctor, but the point is, when you
17 were at a Philip Morris, this word that came out from the
18 Surgeon General in 1981 was encouraging to you because it
19 seemed to validate your efforts to lower the tar levels in
20 smoke, is that right?
21 A. Yes. And I still feel that the lowest level you
22 can get, down below .02 milligrams, that is where you want it
23 to be.
24 Q. And the Surgeon General, at this time, was aware
0164
 1 of the concept of compensation, at the time the Surgeon
2 General came to these conclusions, is that right?
3 A. Well, the people who write the book were probably
4 aware, I don't know the Surgeon General himself is aware,
5 from what --
6 Q. I think the same thing, you don't think the
7 Surgeon General actually sat down and put pen to paper for
8 this?
9 A. I don't think so.
10 Q. But anyway, the report itself makes clear that
11 those who wrote the report were aware of compensation?
12 A. Yes.
13 Q. Is that right?
14 A. They were.
15 Q. If we could highlight that next paragraph.
16 Smokers of lower tar and nicotine cigarettes may tend to
17 smoke larger numbers of cigarettes.
18 That is one of the forms of compensation, correct?
19 A. Correct.
20 Q. To inhale more deeply, to have relatively higher
21 amounts of carboxyhemoglobin than predicted from the machine,
22 from the carbon monoxide yield, and so forth.
23 That is indicating an awareness of compensation, is
24 that right?
0165
 1 A. Yes.
2 Q. And then the Surgeon General, at least the people
3 who wrote the report for the Surgeon General, doctor, go
4 through some epidemiological studies, starting at page 81,
5 which I can also put up on the screen.
6 Epidemiological studies, and the Surgeon General's
7 report here indicates there are three epidemiological studies
8 by three public health institutions, is that right?
9 A. Yes.
10 Q. And you remember these studies, don't you,
11 doctor?
12 A. Yes.
13 Q. First one it deals with is the American Cancer
14 Society study.
15 And if you go over to page 82, right there, if you
16 could highlight that. You are familiar with this, doctor, so
17 I am just going to go to the conclusion.
18 The mortality rate from lung cancer in low tar and
19 nicotine cigarettes for both sexes, over a combined time
20 period was 26% lower than for high tar and nicotine smokers,
21 is that right?
22 A. That's correct. And it gives you the period
23 there that you can see, they are talking about the period
24 basically before 1972.
0166
 1 Q. Okay, it was the best information they had. You
2 are not being critical --
3 A. No, no. I am just pointing out that in the
4 period from the '50's to the late '40's, the tar reductions
5 that occurred were very dramatic in that period. And from
6 1980 until the current time, there have been essentially no
7 more reductions. That's all I am pointing out.
8 Q. But you are not being critical, because, but that
9 is the most recent data that they had.
10 A. No, there is nothing wrong with the data
11 whatsoever.
12 Q. And you still consider that data to be
13 encouraging to you, based on work that you were doing at
14 Philip Morris?
15 A. Yes. It says we should keep on reducing the tar
16 and nicotine.
17 Q. Okay. The next study that they talk about is at
18 the bottom of the page, it is the American Health Foundation
19 study. Just so, Dr. Farone, that was a study of lower tar
20 and nicotine cigarettes?
21 A. Right.
22 Q. Okay, then if you go to the next page, page 83,
23 just briefly look, doctor, at the results of that study.
24 Figure #30 shows a relative risk of the male filter
0167
 1 smoker as a percent of the risk for non-filter smokers. The
2 percentages range from 61% to 89%. Females showed the same
3 pattern with a relative risk of long term filter smokers
4 ranging from 38% to 79% of the non-filter group.
5 Only in the heaviest smoking category, a small number
6 of cases where the relative risk was the same.
7 Do you see that?
8 A. Yes, I do.
9 Q. And that was one of the reports, one of the
10 studies that the Surgeon General relied on at the time you
11 were at Philip Morris in 1981, is that right?
12 A. Yes, it was.
13 Q. Now, you talked a little bit in your direct
14 testimony about TWG, the Tobacco Working Group, is that
15 correct?
16 A. Correct.
17 Q. And the Tobacco Working Group was a group of
18 tobacco industry and government scientists, is that right?
19 A. Yes.
20 Q. And it was a group that was constituted in the
21 mid to late 1960's, 1967, I believe, doctor?
22 A. Toward the end of the '60's.
23 Q. And it stayed in place through the mid to late
24 1970's, 1977, I believe?
0168
 1 A. '77 or shortly after I came to Philip Morris.
2 Q. And the Tobacco Working Group worked on coming up
3 with safer designs for cigarettes, is that --
4 A. Well, yes, they came up, they studied various
5 cigarettes to see if they could determine design specific
6 toxicity.
7 Q. Okay, well, you said yesterday, you were asked a
8 question, did these scientists come to Philip Morris and help
9 you design cigarettes, and you said, no, didn't you?
10 A. Well, they didn't.
11 Q. Right, they didn't come to Philip Morris?
12 A. That's correct.
13 Q. But you are not trying to suggest that the
14 Tobacco Working Group scientists didn't work together with
15 Philip Morris and other industry scientists to come up with a
16 safer cigarette?
17 A. No. As you well know, I pointed out, when I went
18 there, that the concept of increasing the nicotine to tar
19 ratio to a very high level, so that when you compensate you
20 get less tar, was one that they had suggested with, at Philip
21 Morris, not on Marlboro Lights but in other products, we
22 attempted to implement that.
23 Q. So there is no confusion, based on your testimony
24 yesterday, your testimony is that the government scientists
0169
 1 and the industry scientists that were involved in the Tobacco
2 Working Group from the late '60's to the late '70's, were
3 working together to try to come up with a safer cigarette?
4 A. They were working as part of that group, but I
5 wouldn't say together. In cooperation, as you said.
6 Q. Okay, that is fair enough. And the premise of
7 the work that they did, at least one of the works that they
8 did, was that, was to work to reduce tar and nicotine levels
9 of cigarettes, is that right?
10 A. One premise, yes.
11 Q. And they worked on other things as well. But one
12 of the things they were focused on was reducing tar and
13 nicotine levels?
14 A. Corect.
15 Q. Which was one of the things you were focused on
16 when you were at Philip Morris?
17 A. Yes. General reduction and specific reduction.
18 Q. Okay. And the Tobacco Working Group issued
19 reports over the course of its history, is that right?
20 A. Yes.
21 Q. I mean, there are reports that summarize the
22 experimental work that the Tobacco Working Group did to
23 develop a safer cigarette, is that right?
24 A. Yes. A lot of NCI studies and things of that
0170
 1 nature.
2 Q. I hand you what has been marked as 5206, we put
3 the cover on the screen, it will be easier, Dr. Farone, with
4 your eyes, to see.
5 A. I am fine.
6 Q. Then, you recognize this as one of the reports of
7 the Tobacco Working Group, is that right?
8 A. Yes, this is the 1980 report, yes.
9 Q. And it is actually the fourth report in a series
10 that was issued by the Tobacco Working Group, is that right?
11 A. Yes. Is there one after this? Is this the last
12 one?
13 Q. It is either the last or second last, doctor, I'm
14 not certain right now. But it was actually issued by the
15 National Cancer Institute Smoking and Health Program, is that
16 right?
17 A. That's correct.
18 Q. And a lot of the scientists that worked on this
19 project were at the National Cancer Institute of the national
20 government, is that right?
21 A. Yes, many of them were.
22 Q. Okay. If you turn to the acknowledgment page,
23 that is 55206.10, do you have that, doctor? I have got it on
24 the screen. I can blow up portions of it for you.
0171
 1 A. That's fine.
2 Q. Okay, lets blow up that first paragraph, and it
3 describes who the Tobacco Working Group was, is that right?
4 A. Yes.
5 Q. The principle advisory group to the smoking and
6 health program during the course of the mouse skin painting
7 experiments. They had been doing some mouse skin painting
8 experiments, is that right, doctor?
9 A. That's correct.
10 Q. And it tells who the chair-people were. But lets
11 go down to the list, if we can, so that we can, lets, Dr.
12 Farone, explain who some of these people were. Many of these
13 people we have already actually mentioned in this case,
14 doctor, for instance Deitrich Hoffman?
15 A. Yes.
16 Q. Deitrich Hoffman is a scientist that studies
17 tobacco?
18 A. That's correct. He is the author of chapter five
19 of Monograph 13.
20 Q. Not associated with, he is an outside scientist?
21 A. That's correct. He has done work under contract
22 with the tobacco company, but he is not in the company.
23 Q. Above that, Fred Bock, is another noted outside
24 scientist, is that right?
0172
 1 A. Yes.
2 Q. Gio Gori, he was the head of the smoking health
3 program at that time?
4 A. At that time, he was, yes.
5 Q. Okay. And then down towards the bottom, Jesse
6 Steinfeld, he is a former Surgeon General, is that right?
7 A. That's correct.
8 Q. You say that Tso?
9 A. Tso.
10 Q. And he is a government scientist, is that right?
11 A. No, he was a person with the United States
12 Department of Agriculture, who was mainly responsible for the
13 recognition that we should remove nitrogenous compounds from
14 tobacco to reduce toxicity.
15 Q. Okay. And then you see at the bottom, Ernst
16 Winder, he is another prominent scientist who has published
17 numerous things on tobacco, is that right?
18 A. That's correct.
19 Q. And in addition I highlighted a couple of folks
20 that you knew from your time at Philip Morris, Seligman?
21 From Philip Morris?
22 A. Right, my boss for my first four years I worked
23 there.
24 Q. And then Mr. Wakeham, way down at the bottom, is
0173
 1 also somebody from Philip Morris?
2 A. That's correct.
3 Q. And we could go through this, but there are
4 others, there are people from other tobacco companies, other
5 public health institutions, and the government, on that list,
6 is that right?
7 A. That's correct.
8 Q. And just to give the Court an idea of the kind of
9 work that was done, could you turn to page two? And we will
10 just start at the top.
11 This says it is a summary of the first three series
12 of experimental cigarettes. What they did is they made
13 experimental cigarettes and then did tests on them. And
14 doctor, again, I have blown it up for you. Again, if it is
15 easier for you to refer to the screen, that's right, isn't
16 it?
17 A. Yes. They are agreed on the construction of
18 cigarettes, cigarette companies would make them to those
19 constructions. They would test them for the yields and they
20 would test them in the skin painting test.
21 Q. Okay, so they made up different, they modified
22 cigarettes in various ways to see how that influenced the
23 chemical composition and the tumorigenic activities of the
24 smoke and smoke condensate, is that correct?
0174
 1 A. That's correct.
2 Q. They were specifically concerned with the
3 tumorigenic activity, is that right?
4 A. That's right.
5 Q. And that means the amount of tumors that the
6 smoke condensate makes, is that right?
7 A. Yes.
8 Q. Okay. And then series one, if we skip down,
9 under series one, and we will just go briefly here, doctor.
10 But series one was the first group of experimental cigarettes
11 that were made, and SEB-I as referred to there, is one of
12 those experimental cigarettes, is that right?
13 A. Yes.
14 Q. And they made twenty-one modifications of it,
15 including variations in paper porosity, widths of tobacco
16 cut, concentration of nitrate. Those kinds of changes they
17 made to measure what the effects of those changes were on the
18 cigarettes, is that right?
19 A. Well, to try to do that. In fairness, they did
20 not have total information concerning some of the
21 constituents. But what they were looking at is differences
22 between models of two different cigarettes, where they might
23 know what that one difference was between models.
24 Q. Okay. Series two, we will just take a quick
0175
 1 look at that, doctor. This is the next set of cigarettes
2 that they worked with, doctor, and this talks about here are
3 the experimental variables that they used variations in
4 tobacco processing, the amount of tobacco per cigarette,
5 aeration of the burning zone.
6 Are you with me, doctor?
7 A. Yes, I am.
8 Q. Okay, I'm sorry. Use of tobacco with normal and
9 low nicotine content, you have talked about that before,
10 doctor?
11 A. Yes.
12 Q. And these are all kind of variations in the
13 design of the cigarette that they considered, to see whether
14 it worked toward a safer cigarette, is that right?
15 A. Yes.
16 Q. Lets go to the next page, down at the bottom,
17 second from the bottom. And this is the third set of
18 experiments.
19 They worked with additives. The flavor and chemistry
20 of the smoke. Burn rates of the cigarettes. The
21 tumorigenicty of the condensate. Back to paper porosity
22 again.
23 Those type of issues were considered by the
24 government and industry scientists, is that right?
0176
 1 A. Right.
2 Q. Why don't you highlight the fourth paragraph
3 down, that wasn't highlighted, actually.
4 Just to give an example of the kind of work they were
5 doing, they looked at air dilution filters, didn't they,
6 doctor?
7 A. They did.
8 Q. And they concluded the air dilution filter proved
9 to be effective in reducing the tumorigenicity of the
10 cigarette condensate applied on equivalent weight basis. Do
11 you see that?
12 A. Well, the air dilution, you have to go back and
13 look at what the cigarettes were here. But, yes, applied on
14 an equal weight basis.
15 Q. That is the conclusion of the Tobacco Working
16 Group on that point?
17 A. Right.
18 Q. And the Tobacco Working Group actually continued,
19 what was it, a year into your time at Philip Morris, is that
20 right?
21 A. Yes.
22 Q. Okay. And then the Tobacco Working Group was
23 disbanded, is that right?
24 A. 1977, right.
0177
 1 Q. It was disbanded?
2 A. Yes.
3 Q. And it was disbanded because the government
4 decided that it didn't want to be working on safer cigarettes
5 at that point in time, is that right?
6 A. Well, it was disbanded because they decided they
7 didn't want to spend funds on areas that companies should
8 spend funds on themselves.
9 Q. And it coincided with a guy named Joseph Califano
10 being the head of H.E.W., is that right?
11 A. That's right.
12 Q. And he decided he wanted to turn the government's
13 attention to efforts to cause people to quit rather than
14 working on trying to make a lower risk product, is that
15 right?
16 A. That's right.
17 Q. Alright, and so that is what happened then. And
18 you were at Philip Morris then from that point, until 1984,
19 is that true?
20 A. That's correct.
21 Q. And that is the point of time during which you
22 worked to lower the tar rate?
23 A. Yes. And change specific toxocity.
24 Q. And in cigarettes, you can talk about a
0178
 1 conventional cigarette or a non-conventional cigarette, at
2 least that is the terminology that has come up of late, isn't
3 that right, Dr. Farone?
4 A. Well, you can. And the non-conventional can take
5 more than one form. The conventional cigarettes like the
6 Marlboro, Marlboro Lights. Non-conventional cigarettes are
7 like the electrically heated ones, ones that are like straws
8 or different forms.
9 Q. Okay. And you made reference yesterday to the
10 fact that conventional cigarettes can be smoked in different
11 ways by different people, is that right?
12 A. That's correct.
13 Q. And that is sometimes referred to as elasticity,
14 is that right?
15 A. Well, there is two kinds of elasticity, that is
16 one kind.
17 Q. Okay, but that is the kind of elasticity that
18 relates to cigarette smoking, is that right?
19 A. No, well, for the purpose of smoking cigarettes,
20 what you said is correct.
21 Q. Okay, that is what I meant. And it is fair to
22 say, doctor, that you are not aware of any cigarette,
23 conventional cigarette, at least, in the world, that can be,
24 that is not elastic, is that right?
0179
 1 A. To some extent, that's correct.
2 Q. Okay. And there is no conventional cigarette in
3 the world in which somebody can't compensate, to some extent,
4 is that right?
5 A. Right, it is a question on the original
6 Cambridge, you can try, but you can't get very much out of
7 it.
8 Q. But you can still compensate to some extent?
9 A. You can still compensate.
10 Q. Alright. And that is because of the design
11 characteristics that you use to try to dilute the smoke and
12 so forth, they are inherently the type of design
13 characteristics that permit people to smoke the cigarette
14 differently, is that right?
15 A. That's correct.
16 Q. Okay. And then you use those design
17 characteristics, when you are at Philip Morris, because you
18 thought they were the best you had at the time to lower tar
19 levels, is that right?
4 A. Yes, we used all of those, and we knew that in
5 order to reduce toxicity, you had to make very, very large
6 changes. Small changes, go back to the bullet analogy.
7 For example, we knew that RL was less toxic than
8 leaf, but you had to use a whole cigarette, you couldn't just
9 sprinkle it with that.
10 Q. Well, lets talk about some of the methods you
11 use. One of the methods you used to reduce tar, when you
12 were at Philip Morris, was the porous paper, is that right?
13 A. That's right.
14 Q. And we talked a little bit about that before, but
15 the idea is paper that has holes in it?
16 A. Right.
17 Q. And so that air can be pulled in when the smoker
18 draws on the cigarette, is that right?
19 A. That's correct.
20 Q. And smoke can also go out of the porous paper, is
21 that right?
22 A. No, not smoke. Gases go out through the porous
23 paper. Very actual little smoke.
24 Q. Okay. Gases, like carbon monoxide, escape,
0181
 1 right?
2 A. Yes.
3 Q. Hydrogen cyanide escapes, because you are using
4 porous paper?
5 A. Yes.
6 Q. Carbon dioxide escapes, is that right?
7 A. That is true.
8 Q. Oxides of nitrogen?
9 A. Yes.
10 Q. The brown gas?
11 A. Yes.
12 Q. Porous paper is a positive involvement, is that
13 right, doctor?
14 A. With regard to being able to use a product
15 dramatically lower of toxins, yes.
16 Q. Okay, there are also techniques used that reduce
17 the amount of tobacco in a cigarette, when you were at Philip
18 Morris?
19 A. Yes.
20 Q. Things like expanded tobacco, is that right?
21 A. That's right.
22 Q. And expanded tobacco, without going through all
23 the technical aspects, basically resulted in having less
24 tobacco in the rod?
0182
 1 A. Yes. Burn less and make less tar that way.
2 Q. And it is another way to help bring down the tar
3 levels, is that right?
4 A. Yes.
5 Q. And it also brings down the carcinogenic
6 compounds that individual smokers can inhale, is that right?
7 A. That's right.
8 Q. And the, also there is reconstituted tobacco,
9 that is used, that is also a way to reduce the tobacco?
10 A. Yes, I just mentioned that a few minutes ago.
11 Q. Okay. And you also, obviously there is a filter
12 on the end, that was another way to help reduce the levels,
13 is that correct?
14 A. That's right.
15 Q. But probably the most important thing, the single
16 most important thing was the ventilation holes, is that
17 right? In terms of reducing tar levels?
18 A. Well, in terms of reducing tar levels, that is
19 correct. But you can't get them very high, in terms of
20 reducing toxicity. But the ventilation holes were for
21 reducing tar.
22 Q. It is probably the most important step in
23 reducing tar levels, isn't that right?
24 A. Yes, especially if you go to the 97%, the 98%,
0183
 1 yes.
2 Q. And you were involved, you personally were
3 involved in developing vent hole technology at Philip Morris,
4 is that right?
5 A. Yes, I was.
6 Q. And there is a long story as to how vent hole
7 technology was developed at Philip Morris, is that right?
8 A. I can agree with that.
9 Q. But I think it was before you got there, that
10 vent holes were essentially made physically, but, is it
11 proper to say pins making holes?
12 A. Pin perforation.
13 Q. It was not the more advanced way of doing it, is
14 that right?
15 A. That's correct.
16 Q. But you made the holes with pins, and that helped
17 ventilate the filter?
18 A. That's correct.
19 Q. Didn't have a great degree of precision?
20 A. That's right, too.
21 Q. Then you changed, you came up with a different
22 manner, or was the first change made before you got to Philip
23 Morris?
24 A. The change was made, the electrostatic
0184
 1 perforation, that was a change that was made before I got to
2 Philip Morris.
3 Q. Electrostatic perforation is another way of
4 putting the vent holes on the cigarette filter, is that
5 correct?
6 A. That's correct.
7 Q. And electrostatic perforation involved, I think
8 it has been explained, as using sparks to cause the holes in
9 the filter, is that right?
10 A. Tiny little bolts of lighting burning holes in
11 the paper.
12 Q. And again, not the most precise way of doing it,
13 but it is a step up from the pin holes?
14 A. That's right.
15 Q. And then when you got there, doctor, there was
16 another advancement made?
17 A. That's right.
18 Q. And it turned to laser perforation, is that
19 right?
20 A. That's right.
21 Q. And you were very directly involved in laser
22 perforation and making vent holes by the use of laser, is
23 that right?
24 A. That's correct.
0185
 1 Q. And laser perforation, is it fair to say that now
2 that is a high-tech way of putting the vent holes into the
3 cigarette, is that right?
4 A. High-tech and very inexpensive way of doing it,
5 yes.
6 Q. And a very precise way? You are able to be very
7 precise when you have lasers doing the work, is that right,
8 doctor?
9 A. That's right.
10 Q. And you are able to do it very consistently from
11 cigarette to cigarette, when you are doing that?
12 A. That is also true.
13 Q. And vent holes, there was a concern when you were
14 at Philip Morris, with the vent holes, and you referenced
15 this earlier in your testimony today, the possibility that
16 the vent holes could get covered, is that correct?
17 A. That's correct.
18 Q. Because vent holes, if they get covered, there is
19 a concern that that could eliminate the benefits of
20 dilutions, is that right?
21 A. Yes.
22 Q. Because obviously, if you cover a vent hole, then
23 the air can't come in through the vent hole, is that right,
24 doctor?
0186
 1 A. That's right.
2 Q. And you took steps, when you were at Philip
3 Morris, to make sure that the vent holes wouldn't get
4 covered, is that correct?
5 A. Especially by the lips.
6 Q. I'm sorry?
7 A. You put them back too far and your lips will
8 cover them. Put them up too far, your fingers will cover
9 them.
10 Q. So you have to, it took some work to figure out,
11 but if you had the vent holes too close to the smoker end of
12 the cigarette, they could get covered by the lips, right,
13 doctor?
14 A. That's correct.
15 Q. And that could potentially eliminate the
16 benefits, is that right?
17 A. Yes.
18 Q. So you moved the vent holes where they wouldn't
19 be covered by the lips?
20 A. Tried to.
21 Q. And then you became concerned that maybe the vent
22 holes would get covered by the fingers, is that correct?
23 A. That's right.
24 Q. And when you looked at that, you came to the
0187
 1 conclusion that the filter, if you put the vent holes in a
2 place where fingers really weren't a factor in covering the
3 vent holes, is that right?
4 A. Call it about three percent, small factor.
5 Q. Okay. You thought, at the time you were at
6 Philip Morris, you had done everything possible to prevent
7 the vent holes from getting either covered by the lips or the
8 fingers, is that correct?
9 A. That's correct.
10 Q. And you know that actually Monograph 13, actually
11 has concluded that with low tar cigarettes like Marlboro
12 Lights, that vent hole blockage is not a significant problem,
13 is that right?
14 A. That's correct.
15 Q. So your work at Philip Morris on that was
16 validated, is that right, doctor?
17 A. Well, it certainly turned out the way we expected
18 it to, yes.
19 Q. And doctor, you were aware, when you were at
20 Philip Morris, that Philip Morris wasn't just stopping with
21 low tar cigarettes --
22 THE COURT: Alright, I think you are kind of
23 changing the subject here.
24 MR. LOMBARDI: I am, Your Honor, I am.
0188
 1 THE COURT: Okay, we will take a recess for lunch at
2 this time. See you back here, I have got four minutes to
3 twelve, see you back here at twenty-one after.
4 (Witness excused.)
5 ******
6 (Which was the evidence offered and received, and
7 statements made, this 24th day of January, 2003,
8 in the morning session.)

Day 3 (Afternoon Session)

 

21 CROSS EXAMINATION (Continued)

22 Questions By Mr. Lombardi:

23 Q. Doctor Farone, right before we

24 broke, we were talking about methods of tar




2






1 reduction that you worked on at Philip Morris.

2 You remember that?

3 A. Yes, I do.

4 Q. And each of those methods of tar

5 reduction were methods that were used with

6 Marlboro Lights cigarettes. Is that right?

7 A. Yes. On one of them, it was

8 relative to Marlboro regulars, the dilution,

9 extra dilution.

10 Q. Well, so the Judge knows that

11 Marlboro regulars started off in the fifties at

12 a much higher yield than they are today. Is

13 that right?

14 A. That's correct.

15 Q. And tar yields generally for

16 cigarettes and for Marlboro regulars in

17 particular have come down over time based on use

18 of technology like the technology you described

19 this morning. Is that right?

20 A. Generally, all cigarettes in

21 America. Yes.

22 Q. Okay. And Marlboro Lights used

23 the technology that you were talking about this

24 morning. Is that right?




3






1 A. So did Marlboro Reds.

2 Q. Exactly. But Marlboro Lights used

3 that technology. Is that right?

4 A. Yes. That's true.

5 Q. Marlboro Lights has ventilation

6 holes. Is that right?

7 A. Yes.

8 Q. It uses porous paper. Is that

9 right?

10 A. That's true.

11 Q. Has a filter?

12 A. That's true.

13 Q. It used reconstituted tobacco and

14 expanded tobacco?

15 A. Yes.

16 Q. And all those methods of reducing

17 tar are applicable to Marlboro Lights. Is that

18 right?

19 A. Yes. And Marlboro Reds.

20 Q. And, Doctor, based on the

21 epidemiological studies that you're aware of and

22 you've been looking at, you're not suggesting

23 that the tobacco companies should stop selling

24 low yield cigarettes; are you?




4






1 A. No.

2 MR. TILLERY: Excuse me.

3 Again, are we talking about specific brands?

4 THE COURT: Overruled.

5 A. No. I'm not suggesting that

6 really low tar, low yield cigarettes -- I'm not

7 suggesting we should ever, as Philip Morris did

8 with Cambridge, increase the tar delivery of

9 cigarettes once you put it on the market.

10 Q. There is a place for low yield

11 cigarettes in the marketplace. Correct, Doctor?

12 A. All cigarettes should be low in my

13 opinion.

14 Q. Okay. And, Doctor, just to talk

15 about the difficulty of preventing compensation

16 with cigarettes just briefly, you were aware of

17 work that was done at Philip Morris to develop

18 what we've talked about earlier in your

19 testimony as non conventional cigarettes. Is

20 that right?

21 A. That's correct.

22 Q. And some of these non conventional

23 cigarettes, unlike the conventional cigarettes

24 they're working on designs that will prevent --




5






1 prevent compensation from taking place. Is that

2 right?

3 A. Well, it's fairly easy to prevent

4 the kind of compensation that takes place in

5 Marlboro Lights. But now you can prevent almost

6 any kind of compensation with the computer

7 controlled electrically heated cigarettes,

8 that's for sure.

9 Q. Okay. That's what I'm referring

10 to. And just so we have a name, it's the Accord

11 cigarette that you're referencing right now. Is

12 that right?

13 A. Well, that is a design. Yes.

14 Q. Okay. And it's the one at Philip

15 Morris at least?

16 A. Yes.

17 Q. There might be others at other

18 companies, but that's the Philip Morris version

19 of it. Is that right?

20 A. Yes.

21 Q. And what Philip Morris has done

22 with the Accord with respect to compensation is

23 it's a very high tech design. Is that right,

24 Doctor?




6






1 A. It is.

2 Q. I mean it has a small thing they

3 call a heater that's about this big. Is that

4 right?

5 A. Yes.

6 Q. And then you stick a cigarette

7 into the heater?

8 A. Yes.

9 Q. Okay. And the heater actually has

10 microchips in it?

11 A. Well, it heats the cigarette at a

12 defined rate.

13 Q. Okay. And it has steel elements

14 that are heaters that go around the cigarette

15 when you put it in. Is that right?

16 A. Yes.

17 Q. It has infrared sensors in it. Is

18 that right?

19 A. That's correct.

20 Q. And it has timers in it. Is that

21 right?

22 A. That's correct.

23 Q. And what the cigarette is able to

24 do with all that technology is it's able to




7






1 limit the size of a puff that a smoker takes.

2 Is that right?

3 A. Yes.

4 Q. And it defines the amount of smoke

5 that gets to the smoker by limiting the puff

6 size. Is that right?

7 A. Yes.

8 Q. It actually defines the number of

9 puffs in a cigarette. Is that right?

10 A. It can, yes.

11 Q. And with all that technology, you

12 can prevent many kinds of compensation from

13 taking place. Is that right?

14 A. Yes. The main compensation for

15 those models is using more cigarettes.

16 Q. That's right. And you can't

17 prevent smokers from going out and smoking more

18 cigarettes based on the design of the cigarette.

19 Is that right?

20 A. That's correct.

21 MR. LOMBARDI: Thank you,

22 Your Honor.

23 THE COURT: Are you done?

24 MR. LOMBARDI: Yes.




8






1 THE COURT: You may

2 proceed.

3 REDIRECT EXAMINATION

4 Questions By Mr. Tillery:

5 Q. So did you put all those design

6 features in the Marlboro Lights?

7 A. As I said, the only difference

8 between the Marlboro Light and the Marlboro

9 regular is more dilution holes in the Marlboro

10 Light.

11 Q. So were these -- those engineering

12 designs ever used to reduce the relevant

13 toxicity of a Marlboro Lights while you were

14 there over a -- as compared to a Marlboro

15 regular?

16 A. The only design that was used was

17 the increase in dilution.

18 Q. And when you say the increase in

19 dilution, you're talking about more holes in the

20 filter?

21 A. That's correct.

22 Q. And in all other respects, these

23 are the same basic cigarettes. Right?

24 A. As far as I know, yes.




9






1 Q. Now, just so we're clear on that

2 point, you went through yesterday and told us

3 what the effects of that increased ventilation

4 are. And tell us -- remind me, if you wouldn't

5 mind, how that ventilation impacts on the

6 relative toxicity of the smoke to the smoker of

7 a Marlboro Light.

8 A. Okay. The relative small amount

9 of dilution -- and it's very sensitive in that

10 differential range -- increases the

11 mutagenicity. It increases the chemical

12 reactions that cause bad chemicals to be

13 formed. And it makes it very easy for a smoker

14 to compensate, unlike the product that Mr.

15 Lombardi was just discussing.

16 Q. And what's the net effect then in

17 terms of the cigarette smoke and the toxic

18 constituents of the smoke to the smoker of a

19 Marlboro Light as compared to a Marlboro Red?

20 A. There is no significant reduction

21 in relevant risk. And, in fact, there may be

22 what I characterize as dangerous. To a

23 reasonable degree of scientific certainty, you

24 anticipate that it would be an increase at least




10






1 in mutagenicity and most likely, as the evidence

2 that we have available -- they've never been

3 compared side by side -- from the evidence we

4 have available, increase in tumorigenicity.

5 Q. You were shown some FTC documents,

6 an industry letter in 1966 and references in

7 that document and throughout the cross

8 examination about variations in human smoking

9 patterns. Do you remember all that?

10 A. I do.

11 Q. All right. And how do those

12 documents relate to the phenomenon of

13 compensation?

14 A. Well, the phenomenon of

15 compensation is anyone smoking a cigarette

16 that's given to them that's different than the

17 one they have. Let's suppose we have five

18 smokers, and these five smokers all take a

19 different number of puffs. They do different

20 things. They even have different desired

21 nicotine levels. I'll use some numbers we've

22 seen on the documents. One wants 1.28, and one

23 wants 1.41 milligrams of nicotine per

24 cigarette. Well, if they smoke their regular




11






1 cigarette they normally smoke, they'll smoke

2 that in a certain way. And they're all

3 different.

4 Now, if I give them a different

5 cigarette, each one of those smokers will change

6 the way they smoke that different cigarette to

7 get the same relative amounts of nicotine. If

8 the nicotine to tar ratio is the same in the

9 cigarette, they'll get the same amount of tar

10 even with a lower delivery cigarette. If it

11 turns out to be lower, they can get more on a

12 puff. And the problem that we face is that if

13 the smoke is also more toxic, then they can get

14 potentially more tar that's also more toxic.

15 And in the case of Marlboro Lights versus

16 Marlboro regulars and Cambridge Lights versus

17 Cambridge regulars, those differences in design

18 are so small that if you look at how people

19 smoke them, all of these different variations,

20 puff count, whatever, the relevant difference

21 between those is virtually going to be

22 eliminated.

23 Q. I'm going to ask you in just a

24 moment with the Court's indulgence to actually




12






1 diagram that last point to make that issue

2 clear. But on the point you just made, the

3 distinction between cigarettes up here let's say

4 in tar delivery, nicotine availability for that

5 smoker and those that are down here, for

6 example, the originally introduced Cambridge

7 cigarette, zero point zero, can you explain the

8 differences in terms of that versus a Marlboro

9 Light and a Marlboro Red?

10 A. The description I was giving you

11 before was Marlboro Light versus Red or

12 Cambridge Lights versus Cambridge regular. When

13 you talk about things that are widely different,

14 as you can see that you can't get even with

15 drawing on it very hard a tenth of a milligram

16 of nicotine out of it whereas the smoker needs

17 one point two milligrams, they have to actually

18 smoke twelve cigarettes to get there. And you

19 can design. We did it in 1980 with original

20 Cambridge. You can design the cigarettes to

21 make it so that compensation, while it can still

22 occur, as I pointed out to Mr. Lombardi to some

23 degree, cannot give you the desired dose of

24 nicotine from that cigarette, meaning that




13






1 you're forced to not smoke. I mean you can't

2 get tar of the same level out of the same

3 cigarette. So you know that you're doing

4 something towards giving yourself less

5 delivery. It's very obvious.

6 One of the things about compensation

7 when cigarettes are very close to each other

8 like fifteen milligrams of tar versus eighteen,

9 it's so easy to do that it's unconscious. It's

10 an unconscious act. You don't even know that

11 you're doing it. If you give somebody a zero or

12 one milligram cigarette and they're used to

13 smoking a sixteen milligram cigarette, they

14 actually have to work at it to get as much.

15 They've got to go out and buy more cigarettes.

16 They've got to really suck hard. It becomes

17 more of a conscious act. And so the person

18 doing that has a better chance of understanding

19 that they're getting the larger yield and the

20 more tar.



13 Q. (By Mr. Tiller) Over here if we

14 can just use the back. I think this corresponds

15 to the blow-up. We have one that we can use.

16 Thank you. Put it on this board. I think that

17 might work for you. I think so. I don't know

18 if that works where you can draw on it or not?

19 A. I know so.

20 Q. Here's what I'm interested in you

21 diagraming for the Court. This might be a

22 little better.

23 If we're taking various individual

24 smokers and let's say we're looking at this in




15






1 the context of two different cigarettes. One's

2 a Marlboro because I'm going to ask you about

3 some cross-sectional testing that you heard

4 about a little while ago. And if you take a

5 group of smokers that would smoke a Marlboro

6 Light, for example, look at how there may be

7 some individual variations. Start off with the

8 Red and then go to a Light in connection with

9 the individual smoking them and the nicotine

10 that they smoke for.

11 A. Okay. Let's put on this scale the

12 amount that they get out of smoking a

13 cigarette. They can puff it many different

14 ways, and they can do whatever they want. And

15 one smoker might get that much. I'm going to

16 make this part of the scale be the tar. And the

17 nicotine is also some small fraction of the tar,

18 usually about six percent. It can go up to

19 about ten percent.

20 The next smoker, make it that much

21 tar. This is all the same cigarette. Now,

22 we're talking about a different smoker smokes a

23 slightly different way. Another one gets this.

24 And let's make five of them.




16






1 Q. By the way before you go further,

2 I know I'm interrupting you. Could you explain

3 how that tar and nicotine ratio applies for the

4 court. There were descriptions of nicotine tar

5 ratio?

6 A. Well, okay. When you measure

7 total particulate matter, remember it's broken

8 into water, tar and nicotine. And some people

9 look at the tar to nicotine ratio, and some say

10 nicotine to tar. But the idea is what I like to

11 think of it is what percentage of what people

12 are smoking for is the nicotine they get in

13 tar. For example, those numbers -- so the ratio

14 is nicotine to tar. And in a Marlboro and a

15 Marlboro Light, that number is about point 06.

16 And in some of the other cigarettes you saw on

17 those things, that number was about point 09.

18 And there is actually ones that are as high as

19 point 15, different model, different kinds of

20 cigarettes.

21 Q. Can you design cigarettes to

22 change that nicotine to tar ratio?

23 A. Yes, you can. You can design.

24 Q. Okay.




17






1 A. Now, let's go back to this. Let's

2 take smoker number three. I'll call him Steve.

3 And Steve is now going to smoke a cigarette that

4 has potentially lower yield, that is if Steve

5 were to smoke the cigarette in the normal

6 manner, you would expect that he's only going to

7 get as much as the blue line because the yield

8 of the cigarette is less than the one that he's

9 smoking by a certain amount. And you would

10 expect that. What happened was, however, you're

11 talking about full compensation. And, again,

12 when you measure the full compensation, what

13 Steve gets is this amount right here is the same

14 as this amount right here. And this amount

15 right here is the same as that amount right

16 there. Because what he's done he would like to

17 get that much more nicotine and he puffs more

18 and tries to puff longer. And that gives him

19 that same increment of tar because this number,

20 the ratio doesn't change. So that's how he gets

21 the same nicotine to tar ratio and the same

22 amount of tar out of the other cigarette.

23 Now, when I was talking to Mr.

24 Lombardi, it's important to recognize that this




18






1 phenomenon if I give him one -- I ran out of

2 color here. Let's take one over here. If

3 smoker six here now is given a cigarette that

4 only has -- we give smoker three, instead of

5 giving him this cigarette, we're going to give

6 him one that only has that much nicotine, the

7 rest is tar. If it's designed correctly, no

8 matter what he does he can draw as hard as he

9 wants to. He'll never get that amount of tar on

10 this scale down here. It will be the same as

11 this bar here. It will always be less. It will

12 still have more nicotine than this, and it will

13 still have more tar. But that's partial

14 compensation. It's very difficult in some

15 designs like the original Cambridge for him to

16 make it the same as this. Whereas, if there is

17 only a small difference like between the

18 Marlboro Red and Marlboro Light and Cambridge

19 regular and Cambridge Lights, it's easy for him

20 to do that.



17 Q. (By Mr. Tillery) Based upon that

18 analysis, do you have an opinion as to whether

19 throughout the class period, Marlboro Lights and

20 Cambridge Lights have been designed to allow

21 them -- to allow the smokers of them to extract

22 the same nicotine and, thereby, because of the

23 relationship with tar, the same tar from the

24 cigarettes as they would from a regular




20






1 counter-part?

2 MR. LOMBARDI: Object to the

3 form. Object to the foundation. We made these

4 objections before earlier when he was on

5 Direct. I think the same question was put to

6 him, and we made the same objections then, Your

7 Honor.

8 THE COURT: Overruled.

9 A. Yes, I do.

10 Q. (By Mr. Tillery) What's your

11 opinion?

12 A. They were designed to essentially

13 be the same.

14 Q. I want to at this point hand you a

15 document that was referred on Cross Examination

16 as 19 B. And it's a Goodman, Barbara Goodman

17 document, and direct Your Honor to two

18 conclusions in that document. I think it's the

19 second conclusion.

20 THE COURT: Hold it.

21 MR. LOMBARDI: I just want

22 to know which one it was. You said 1982?

23 MR. TILLERY: 19 B, the

24 exhibit number.




21






1 MR. LOMBARDI: I

2 misunderstood what you said. Just give me one

3 second to grab a copy of it, Doctor. That's all

4 right. Okay. Thank you.

5 Q. (By Mr. Tillery) And would you

6 give the number?

7 A. CKT023303.

8 Q. And it's point number two, if

9 you'd blow that up.

10 A. "Under regular smoking conditions,

11 the smokers were receiving the same amount of

12 nicotine per day on all three studied cigarettes

13 while the tar deliveries vary with two models

14 giving deliveries similar to CI" -- which,

15 again, is the cigarette information report.

16 "The panelists also smoked the same number of

17 cigarettes to the same butt length regardless of

18 which model they smoked. On recorded smoking,

19 the tar deliveries were considerably higher than

20 the regular delivery."

21 And this is similar to what we were

22 talking about a few minutes ago.

23 Q. Have these studies, as you've seen

24 them, when you were at Philip Morris which is




22






1 when you've last looked at the studies, have

2 they been consistent with the recognized

3 phenomenon of compensation?

4 A. Yes, it has. And, again, you have

5 to understand that a phenomena applies

6 differently to cigarettes that are very closely

7 matched in design like Marlboro Reds to Marlboro

8 Lights and Cambridge regulars to Cambridge

9 Lights than it does to vastly different ones.

10 The general concepts are the same, as I've

11 talked about with you and Mr. Lombardi.

12 Q. You were asked about

13 cross-sectional studies and extrapolating

14 results from those. Could you tell the Judge,

15 first of all, what kind of studies those are and

16 why using those studies might provide some

17 inaccurate conclusions?

18 A. Well, they don't -- they provide

19 the conclusions about how individual people,

20 regardless of switching, how they smoked their

21 cigarettes. So it's very useful to know how

22 they smoke their cigarette and what their

23 nicotine desired level is. And those studies

24 are frequently used for understanding groups of




23






1 people who may have similar nicotine levels.

2 Some people have a light requirement. Some

3 people have a heavy requirement and so on. The

4 compensation that we're talking about is when

5 you take people within any of those groups, and

6 then you give them a different cigarette where

7 they anticipate making a switch or trying a

8 different cigarette and what they do with it.

9 So it's a different -- comparative studies are

10 different than cross-sectional studies. They

11 are both useful for their own purpose.

12 Q. You were shown some ads, I believe

13 some Cambridge Ultra low tar ads. I want to

14 show you a couple of packs of cigarettes here if

15 I can.

16 MR. TILLERY: I need a

17 couple of exhibit stickers. I don't know where

18 we are, twenty-one or twenty-two.

19 Q. (By Mr. Tiller) Do you remember

20 those ads that he showed you?

21 A. Yes, I do.

22 Q. All right. He showed you ads of

23 Cambridge cigarettes that showed what? One

24 milligram of tar and four milligrams of tar and




24






1 five milligrams of tar?

2 A. Yes.

3 Q. And those were in what time

4 period, if you know?

5 A. They were in the period of 1980 to

6 1986.

7 Q. And --

8 A. Maybe up to '88 depending on which

9 one he showed me.

10 Q. I don't want to speculate as to

11 the logic of that Cross. That's Mr. Lombardi's

12 prerogative, but I gleaned from that he was

13 showing that they were trying to educate the

14 smokers about the tar levels. There was

15 something positive. I think you were asked

16 several times "Is there something positive about

17 putting those tar numbers on the cigarette

18 packs?" Weren't you asked that?

19 A. Yes, I was.

20 Q. All right. And you told him

21 yeah. You thought that information might be

22 helpful I think was the term you used?

23 A. Yes. Because people then have the

24 number right there so they can see what it is




25






1 they're smoking.

2 Q. Now, did they put the tar numbers

3 on the Cambridge Light cigarettes when they

4 ramped up the load by multiples? Did they do

5 that?

6 A. No, not to my knowledge.

7 MR. TILLERY: Well, at this

8 time, I don't know what number we're up to right

9 now. Twenty-two?

10 Q. (By Mr. Tillery) I'll show you

11 what's been marked as Exhibit Twenty-two. Can

12 you identify that?

13 A. Cambridge Lights Kings.

14 Q. And here's a package,

15 Twenty-three. What -- can you identify that

16 exhibit?

17 A. Cambridge full flavor.

18 Q. And do you see any of the tar

19 numbers on those?

20 A. No, I don't.

21 Q. And now, if they're so useful to a

22 smoker, do you think if you went from zero point

23 zero or one milligram of tar and you then went

24 up -- by the way, what are those Lights right




26






1 there on you are diagram, those Cambridge Lights

2 in terms of their specific tar levels to the

3 smoker?

4 A. Well, they'll stop at

5 ninety-eight. But if they're the same as that,

6 they would be the ones that are the second from

7 the right. That would be the eleven, ten or

8 eleven.

9 Q. Ten or eleven milligrams for

10 Lights?

11 A. Yes.

12 Q. Okay. Do you think if we're

13 talking about what's in the interest of the

14 consumer who's buying them that if we're talking

15 about how useful numbers would be, that you

16 would want to put those numbers on the back?

17 A. I would.

18 Q. Well then, I'm curious then. Do

19 you know why or was that part of a plan by the

20 way?

21 A. Well, the information that I have

22 indicates that, in general, the numbers are only

23 put on the lowest package, the ones where the

24 numbers are very low. When the numbers get




27






1 high, they don't put them on. This is sort of a

2 general thing as documented in the Federal Trade

3 Commission reports. Federal Trade Commission

4 actually tells you which cigarette packings, as

5 these are called -- at least they did in some of

6 those reports -- have the designations on the

7 pack and which ones don't. And if you can study

8 that, just look at it and anybody can, you can

9 get an idea of which ones have. So as you go up

10 in tar, fewer and fewer packs have it. And the

11 lowest packing where the tars are, say, below

12 three or four milligrams, virtually all of them

13 have it.



21 Q. (By Tillery) Doctor Farone, you

22 were there working when the Cambridge cigarette

23 was introduced?

24 A. I was.




29






1 Q. You had knowledge of the fact that

2 they were introducing this as a very low tested

3 delivery cigarette. Right?

4 A. I had knowledge that they were

5 introducing it as being the lowest tar marketed

6 cigarette, the lowest.

7 Q. And you were involved in meetings

8 where this was discussed; weren't you?

9 A. I was.

10 Q. And yesterday you said that you

11 actually knew that the plan was to ultimately

12 increase incrementally the tar and nicotine

13 yield of the cigarettes?

14 A. That was discussed at meetings

15 that these materials would hit the market at a

16 tar level that was lower than Carlton, which at

17 that time was the lowest. And then after that,

18 it would drift up, as the numbers on the chart

19 that I showed you.

20 Q. Did you raise any ethical concerns

21 about that?



11 Q. (By Mr. Tillery) Did you raise an

12 issue?

13 A. I did.

14 Q. With whom did you raise that

15 issue?

16 A. Oh, with several people. We

17 discussed it after the meeting, and I was

18 informed that the only legal obligation that we

19 had was to put the number -- to give the number

20 to the Federal Trade Commission or share our

21 numbers with the Federal Trade Commission or

22 submit them for Federal Trade Commission

23 testing. But as long as you're disclosing to

24 the Federal Trade Commission, the opinion that I




31






1 was given, you've complied with whatever duty

2 you had. So if one year you wanted to make it

3 zero and the next year you wanted to make it

4 fifty, you were free to do that as long as you

5 disclosed that to the Federal Trade Commission.

6 Q. There was no problem?

7 A. No problem.

8 Q. You were shown a number of

9 documents by Barbara Goodman and asked a number

10 of questions about human simulator studies and

11 other studies that you had done. Was there ever

12 a time when she made these presentations about

13 these studies and you talked about these in

14 these Friday meetings that you've discussed in

15 your Direct testimony where any of her

16 scientific findings or conclusions were called

17 into question?

18 A. No.

19 Q. Was the population size of the

20 study used as a basis for critiquing it or in

21 any way suggesting it wasn't accurate in terms

22 of the human studies?

23 A. No. As I pointed out, we already

24 knew that the compensation occurred. We already




32






1 knew within those small levels it was virtually

2 complete. The purpose of her studies was to

3 actually get all of those variations that were

4 up on the chart.

5 Q. Okay.

6 A. Because we wanted to know more

7 about the different ways that people smoked so

8 they could be programmed into that simulator so

9 that we could have the simulator smoke like

10 number one, two, three, four and five on the

11 chart.

12 Q. You were shown a number of

13 documents. I'm not going to pull them all out

14 and go through them one after another. But you

15 were shown where there was references to changes

16 in the nicotine to tar ratio and how that would

17 influence delivery to the cigarette smoker?

18 A. That's correct.

19 Q. And do those documents verify that

20 at any time throughout this class period, Philip

21 Morris had the ability, by adjusting the

22 nicotine to tar ratio in its cigarettes, to have

23 influenced the delivery of the toxic

24 constituents of tar to various cigarette




33






1 smokers?

2 MR. LOMBARDI: Objection,

3 foundation.

4 THE COURT: Overruled. .

5 A. Yes, it did.

6 Q. (By Mr. Tillery) Did they ever

7 utilize their understanding or their knowledge

8 of that particular science of design with

9 respect to Marlboro Lights or Cambridge Lights

10 cigarettes?

11 A. No. They did not.

12 MR. LOMBARDI: I'm sorry,

13 Your Honor. I object again. It sounds like

14 we're getting into design defect which is not a

15 part of this case. This is a consumer fraud

16 case.

17 THE COURT: Overruled.

18 Q. (By Mr. Tillery) Did they ever do

19 that?

20 A. No, they did not.

21 Q. As a matter of fact, 19 B, the

22 document that you referenced up there, showed

23 that they could clearly engineer these

24 cigarettes with a higher nicotine to tar ratio.




34






1 Correct?

2 A. That's correct.

3 Q. That would result in a cigarette

4 smoker achieving this threshold dose of nicotine

5 that he or she needs while reducing the tar

6 components in the smoke?

7 A. That is correct. And as I

8 indicated, that was suggested by the Tobacco

9 Working Group. That was something that we felt

10 was a good thing to do.

11 Q. Well, I was going to ask you about

12 that. Now, Mr. Lombardi came out and showed you

13 reference after reference after reference to the

14 good things that he thought were suggested in

15 experimental cigarettes by the Tobacco Working

16 Group. Were those implemented in the Marlboro

17 Lights or Cambridge Lights cigarettes?

18 A. No, not to my knowledge. I should

19 say there is no difference between them. And

20 some of them were implemented.

21 Q. This document is a --

22 MR. LOMBARDI: I'm sorry. I

23 just didn't hear you.

24 A. I just wanted to make sure when I




35






1 answered that question we understood it was

2 between the two cigarettes. Some of the

3 absolute things we discussed were.

4 MR. LOMBARDI: So you're not

5 denying the TWG things were used in Marlboro

6 Lights cigarettes?

7 A. Some. Some of them, not the

8 nicotine tar ratio.

9 MR. LOMBARDI: Thank you for

10 the clarification.

11 Q. (By Mr. Tillery) This is a copy I

12 think of the Monograph Seven that Mr. Lombardi

13 handed to you. Would you take a look at the

14 conclusion part of that document and see how

15 that matches up with the portions he asked you

16 to read?

17 A. The conclusions are on -- there

18 are several conclusions. But the ones relevant

19 to this issue are on page VII, seven and eight

20 of the preamble.

21 Q. Yes. You can read them or show

22 them or pull them up. I don't know if he has

23 them. If you give them a reference number, they

24 may be able to pull it up.




36






1 A. I have a Bates number. Is that

2 sufficient?

3 MR. LOMBARDI: I think with

4 this large a document, it may be difficult to

5 pull out an individual. We can use the L mode.

6 A. I have it, B and C.

7 Q. (By Mr. Tillery) Okay. Is there a

8 section you were looking at?

9 A. Yes.

10 Q. Which conclusion were you?

11 A. Number B, the bottom one on that

12 page.

13 Q. "Brand names and brand

14 classifications such as light and ultra light

15 represent health claims and should be regulated

16 and accompanied in fair balance with an

17 appropriate disclaimer?"

18 A. Yes. That's one of the

19 conclusions of this document.

20 Q. Was that one of the conclusions of

21 Monograph Seven?

22 A. Yes, it was.


17 Q. (By Mr. Tillery) Were you finished

18 Doctor Farone?

19 A. Yes, I was.

20 Q. What about C?

21 A. The other pertinent thing here,

22 "The available data suggests that smokers

23 misunderstand the FTC test data. This

24 underscores the need for an extensive public




38






1 education effort."


12 Q. (By Mr. Tillery) You were read a

13 portion out of your --

14 MR. TILLERY: I'm sorry,

15 Your Honor.

16 THE COURT: Well, it was

17 covered in your Cross Examination in as much as

18 you singled out this particular document. If

19 this goes to show its importance or whatever

20 they intended to do, so be it without regard to

21 anything else.

22 Q. (By Mr. Tillery) Doctor Farone,

23 you were asked some questions about your

24 testimony about brands and the relationship of




39






1 brand testing to cancer, that sort of thing. Do

2 you remember that?

3 A. Yes.

4 Q. Okay. Has Philip Morris ever

5 tried to do any specific studies of cancer rates

6 among smokers of any of their specific brands of

7 cigarettes?

8 A. Not to my knowledge.

9 Q. Is that what you were referencing

10 when you testified in that deposition?

11 A. Yes. That's called brand specific

12 epidemiology.

13 Q. Have they ever, as a matter of

14 fact, done any "as sold" toxicity testing of

15 Marlboro Lights or Cambridge Lights?

16 A. Only recently in the data that we

17 showed here. But before about around 2000 or

18 so, I don't think there was any such testing

19 done.

20 Q. Were you allowed to do that sort

21 of testing when you were there?

22 A. Not while I was there.

23 Q. Why not?

24 A. I think I testified before that




40






1 would create a record that they didn't want to

2 have.

3 Q. Well, let's walk through this.

4 You were asked these questions about different

5 series of mutagenic testing. And how would you

6 do this? If you were asked to come in, let's

7 say, forget this lawsuit. Forget your work

8 experience. Let's forget all of these issues,

9 and let's just focus on you being hired based

10 upon your knowledge and experience of whole

11 product testing and your knowledge as a

12 scientist. And they came in and they said,

13 "Doctor Farone, we want you to go through and

14 take our Marlboro Lights cigarettes and our

15 Cambridge Lights cigarettes and tell us if these

16 things are related to cancer. Are me making

17 people sick?" What would you do?

18 A. Well, you would run all the

19 battery of tests that I discussed with Mr.

20 Lombardi on Marlboro Lights and Marlboro

21 Regulars. First of all, we know that cigarettes

22 cause disease. We start off on that basis. We

23 also know that there is a battery of tests that

24 relate how those diseases are caused to the




41






1 chemicals that cause them whether it's

2 irritation, mutagenicity or carcogenicity.

3 Those tests are known to provide information

4 that allow us to assess the relevant risks

5 between those products.

6 And so first we would test them all.

7 And then following the procedure that we showed

8 yesterday off of one of the Philip Morris'

9 documents, you would not accept any change in

10 any of the products that did not, at a minimum,

11 maintain the risk, certainly no change that

12 would increase the risk or could increase it.

13 And that would include the way the product is

14 used, including the way that you smoke it. You

15 wouldn't implement a design change that allowed

16 compensation to be easily made.

17 And then finally any change that you

18 made in the product, as they are documented, you

19 would make sure that it actually reduced the

20 risk and harm.

21 MR. LOMBARDI: Objection.

22 The design defect is not at issue in this case,

23 Your Honor.

24 THE COURT: Overruled.




42






1 Q. (By Mr. Tillery) More

2 specifically, as you went from that -- I know

3 you went through this yesterday. But I'd like

4 the step wise approach of this testing. How

5 would you advance past the first two tiers?

6 A. Sure. Well, if you start off with

7 cell level testing, remember we're headed up

8 toward human. Start off with cell level

9 testing. You make sure that you understand how

10 the product functions, irritation, cell death,

11 cytotoxicity, mutagenicity. Then you take the

12 ones that passed that first step, that are not

13 highly mutagenic, that are not causing extra

14 cell death. And you go to the next level of

15 extreme which could be mild skin pain, chronic

16 inhalation, long term inhalation death. Could

17 be other types of animal pain. Could be

18 ingestion tests actually because part of the

19 smoke ends up being ingested. And you would

20 take that body of information and then apply

21 those principles.

22 But in all cases, you would test the

23 exact products that you were selling on the

24 market. You wouldn't rely on these reference




43






1 cigarettes and HAK and the ones that we've

2 seen. That's all the information we have. You

3 would have the actual information for the

4 products you were selling. And each time you

5 made a change in those products, you would put

6 it back through those same tests to make sure it

7 complied with principles that I discussed a

8 while ago.

9 MR. LOMBARDI: Same

10 objection. Move to strike.

11 THE COURT: Overruled.

12 Q. (By Mr. Tillery) and What part of

13 that's been done at Philip Morris with respect

14 to Marlboro Lights and Cambridge Lights?

15 MR. LOMBARDI: Same

16 objection. Design defects are not relevant to

17 the lawsuit.

18 THE COURT: Overruled.

19 A. With regard to Cambridge Lights, I

20 don't see very much. The Marolboro Lights we

21 saw their Ames testing done in the year 2000

22 which showed the results that the Marlboro

23 Lights had an increased Ames Test result over

24 the Marlboro Regulars.




44






1 Q. With respect to this Ames Test,

2 was there ever a time while you were at Philip

3 Morris prior to the litigation and the remarks

4 and statements made about biological tests while

5 you were there, was there ever any discussion

6 about it being a scientifically unreliable test

7 or a test which results you should question,

8 that sort of thing?

9 A. No. And as a matter of fact,

10 other tests were abandoned in favor of it

11 because of its higher correlation with

12 tumorigenicity tests.

13 Q. And throughout the period of time

14 that Marlboro Lights have been sold, to your

15 knowledge, have the Ames Assay Study

16 consistently shown higher levels of propensity

17 towards mutagenic results from either Marlboro

18 Lights over Marlboro Reds?



8 Q. (By Mr. Tillery) Throughout the

9 class period, to your knowledge with respect to

10 the Ames Assay Test Results and comparing those

11 to Marlboro Lights and Marlboro Reds has there

12 ever been a consistent pattern with respect to

13 those tests?

14 A. Consistent pattern that we saw on

15 the documents for dilution, but we have limited

16 testing on Marlboro Lights versus Marlboro

17 Reds. But all the information we have is in the

18 same direction, that is there doesn't appear to

19 be cases where we have increased dilution of the

20 kind we're talking about in Marlboro Lights and

21 Marlboro Reds. In the testing that Philip

22 Morris did and we have a lower result, we did

23 see that dilution in one of the tests that the

24 tobacco working group did. But that wasn't




46






1 Marlboro Lights versus Marlboro Reds. We don't

2 know exactly what that was. But in ones that

3 compares Marlboro Lights versus Marlboro Reds

4 and the kinds of formulations that Philip Morris

5 uses, all of the data is consistent with the

6 dilution causes increases in response in the

7 tests.

8 Q. And just to be clear, in spite of

9 these -- and I know you've pointed out these

10 variabilities and how people compensate. Does

11 it matter for purposes of compensation, that

12 smoker behavior varies between individuals?

13 A. No, it doesn't.

14 Q. And is that the case with respect

15 to Marlboro Lights? In other words, are these

16 packages of cigarettes, these cigarettes

17 designed such that a cigarette smoker smoking

18 Marlboro Lights can extract from them the same

19 they could from a Marlboro Red or a regular

20 cigarette?

21 MR. LOMBARDI: Objection on

22 foundation. Reference to all smokers and

23 aggregate groups of smokers. There has to be

24 foundation as to --




47






1 Q. (By Mr. Tillery) And I mean to

2 include smokers, habituated smokers. I mean

3 irrespective of whether they smoke half way down

4 the cigarette, whether they hold it and talk,

5 whether they smoke indoors, outdoors. Do you

6 understand the variables I'm implying here?

7 A. Yes.

8 Q. Okay. And I mean to include all

9 the different ways people smoke?

10 MR. LOMBARDI: Object to the

11 foundation.

12 THE COURT: Overruled.

13 MR. TILLERY: Excuse me.

14 Let me finish my question, Counsel. I paused.

15 I'm sorry.

16 Q. (By Mr. Tillery) All the different

17 ways people smoke taking into account what

18 you've heard about the FTC, what you've heard

19 from Mr. Lombardi that people do it different

20 ways in their smoking behavior. Does this

21 design allow each and every one of them to

22 extract their threshold level of nicotine from

23 that Marlboro Light and Cambridge Light

24 cigarette?




48






1 THE COURT: Ask him if he's

2 got an opinion on that.

3 Q. (By Mr. Tillery) Do you have an

4 opinion?

5 MR. LOMBARDI: Foundation.

6 THE COURT: Okay. Overrule

7 the objection.

8 A. Yes, I do. And the differences

9 between those products are so small that no

10 matter how you smoke and all those different

11 things that people can do, it is very, very

12 simple to extract the desired and same amount of

13 nicotine. The design differences have to be

14 much larger, as we see in all of these

15 documents, before the issue of it becoming

16 partial or other phenomena happening that don't

17 allow you to do a complete compensation. These

18 are very tiny differences.

19 Q. And has that been the case with

20 respect to Marlboro Lights and Cambridge Lights,

21 to your knowledge, throughout this class period

22 as I've told you?

23 A. Yes, it has.

24 MR. TILLERY: I don't know




49






1 if you can pull this document up for me. You

2 used it yesterday. It's numbered 3483.1, the

3 Marlboro Lights ad.

4 Q. (By Mr. Tillery) Do you remember

5 seeing this ad from yesterday afternoon?

6 A. I think it was this morning, sir.

7 Q. Was it this morning?

8 THE COURT: It was this

9 morning.

10 MR. TILLERY: Oh, time

11 flies! Can you pull up that box down there in

12 the lower right-hand corner? Right there,

13 perfect.

14 Q. (By Mr. Tillery) Was this what you

15 were referring to, "Lighter in taste, lower in

16 tar?"

17 A. Yes.

18 Q. Okay. "Some people prefer the

19 taste of a low tar and nicotine cigarette?"

20 A. Yes.

21 Q. "For them we have made Marlboro

22 Lights the same great quality you get with

23 famous Marlboro Red." Was that part of the

24 plan?




50







10 Q. (By Mr. Tillery) When you were

11 there, what was one of your first jobs in terms

12 of computer modeling? What was one of the first

13 jobs you had?

14 A. To collect all the information

15 about how cigarettes were designed and build a

16 model that allowed people to use that

17 information for future designs.

18 Q. And was that -- could that

19 information be used and to your knowledge prior

20 to your involvement there, was there a effort to

21 use the compilation of design knowledge and

22 science to keep these two cigarettes, Reds --

23 Marlboro Reds and Marlboro Lights -- in a

24 relative comparison for purposes of brand and




51






1 brand, let's say, purchases? Do you know what

2 I'm saying?

3 A. Yes. I mean it was discussed on

4 many, many occasions. And there are numerous

5 consumer tests where changes would not be made

6 that made these cigarettes, for example if

7 Marlboro Lights were not acceptable to Marlboro

8 Red smokers, then that change would not be

9 made. I sat through many, many discussions of

10 the principle. It was actually a marketing

11 principle that we're going to keep these

12 cigarettes as close as possible to the same. I

13 was not there at the beginning but from '76 to

14 '84, changes were not made in Marlboro Lights

15 that would make them distinctly different from

16 Marlboro Reds. When we talk about changes, they

17 were the same basically. But there would be

18 cropier changes. There would be -- we talked

19 about this a little bit. When the tobacco had a

20 little bit more or less nicotine, they had to

21 adjust the blend a little bit. There are minor

22 changes that occur every year over the years,

23 but the objective was to keep those two as close

24 to possible to being identical.




52






1 Q. Now, you see the last part after

2 Marlboro Red, "Only Lights were developed

3 especially for those who prefer the lighter

4 taste of a low tar smoke." Was there also, to

5 your knowledge, an attempt to correlate any

6 taste claims with health claims or claims

7 related to being safer or lower in tar and

8 nicotine?


19 A. The use of the term light was

20 intended to imply not just low tar but also that

21 it was safer.

22 Q. (By Mr. Tillery) And finally --

23 MR. TILLERY: My next

24 number?




53






1 Q. (By Mr. Tillery) Exhibit

2 Twenty-four. Can you identify that?

3 A. It's a pack of Marlboro Lights.

4 Q. Yesterday you were asked a little

5 bit of Latin. Do you remember?

6 A. Yes.

7 Q. What was the Latin you were asked

8 about yesterday?

9 A. Well, the die is cast, alea jacta

10 est.

11 Q. Is there any Latin on that

12 package?

13 A. There is.

14 Q. Latin on all packages of Marlboro

15 brand cigarettes?

16 A. Yes.

17 Q. What's the Latin on that?

18 A. Veni, Vidi, Vici.

19 Q. What does that say?

20 A. I came, I saw, I conquered.

21 MR. TILLERY: Thank you,

22 sir.

23 MR. LOMBARDI: Your Honor, I

24 have a few more if that's okay.




54






1 RECROSS EXAMINATION

2 Questions By Mr. Lombardi:

3 Q. Doctor Farone, you just said it's

4 possible, possible to extract the same amount of

5 tar and nicotine from a Marlboro Light and a

6 Marlboro Regular. Is that right?

7 A. Yes.

8 Q. Based on the design. That's what

9 you said?

10 A. Small dilution changes. Yes.

11 Q. But the fact is -- the fact is

12 that whether a smoker gets the same amount of

13 tar and nicotine is up to the individual

14 smoker. Is that right?

15 A. I think that's probably right.

16 Without the smoker there would be no tar and

17 nicotine delivered.

18 Q. And smokers smoke differently.

19 You said that. Right, Doctor?

20 A. It doesn't mean they can't use it

21 the same. Of course they smoke differently.

22 Yes.

23 Q. But the amount of tar and nicotine

24 the smoker gets depends on the individual




55






1 smoker. You just said that. Isn't that right,

2 Doctor?

3 A. It depends on the nicotine they

4 want. Yes.

5 Q. Depends on -- depends on the

6 individual smoker. Is that right?

7 A. It depends -- I think we're

8 agreeing. I'm just saying that I want to make

9 sure you're not talking about tar. People don't

10 smoke for tar. I want to make sure that we

11 understand my opinion on that, that we're only

12 talking about the nicotine. So yes. It depends

13 on the individual smoker and how they smoke, but

14 it's for the nicotine.

15 Q. Okay. And you don't know. You've

16 done no study of the class members in this

17 case. Correct?

18 A. That is correct.

19 Q. You don't know Susan Miles, Linda

20 McHatton or any of the other class members. Is

21 that right?

22 A. Not to my knowledge.

23 Q. You've done no study of how they

24 actually smoke a cigarette?




56






1 A. That's right. That's right.

2 Q. You don't know whether they

3 compensate or not. Is that right?

4 A. No, that is not right.

5 Q. You don't know whether Linda

6 Miles -- Linda McHatton compensates, sir; do

7 you?

8 A. To a reasonable --

9 Q. Let me ask you this. I'll

10 withdraw the question. Have you met her?

11 A. No. I have not.

12 Q. Have you watched her smoke?

13 A. No. I have not.

14 Q. Have you done any scientific

15 measurement of the amount of tar she intakes

16 when she smokes?

17 A. I have not.

18 Q. Have you done that with any class

19 member in this case?

20 A. No, I have not.

21 Q. Now, you just said that nicotine

22 is the thing as far as you're concerned. I'm

23 paraphrasing, Doctor. Nicotine was the main

24 thing people smoke for. Is that right?




57






1 A. Main thing. That's correct.

2 Q. Okay. But we're talking about tar

3 some here too, Doctor; aren't we?

4 A. Yes. We're talking about the tar

5 that comes along with the nicotine.

6 Q. And tar -- tar, according to the

7 public health community and all the scientists

8 that have looked at this, tar is the culprit in

9 causing cancer. Is that right?

10 A. That's right. And that's why you

11 want to give them the nicotine without the tar.

12 Q. So if you bring down the tar

13 levels, that's a good thing. Right?

14 A. Only if you relatively increase

15 the nicotine level. That was the suggestion of

16 the Tobacco Working Group that Philip Morris

17 implemented in some of its cigarettes but not in

18 this one.

19 Q. Nicotine doesn't cause lung

20 cancer?

21 A. That's right.

22 Q. Tar may cause lung cancer or does

23 cause lung cancer. Is that right?

24 A. Yes.




58






1 Q. So it's the tar that -- if a

2 smoker gets less tar, whatever amount of

3 nicotine they get, if they get less tar, that's

4 a health benefit. Isn't that what the public

5 health community has been saying?

6 A. Yes. I'm not disagreeing with

7 that.

8 Q. So if you get a lower tar level

9 from a cigarette, whatever is going on with

10 nicotine in all your discussion of nicotine,

11 that's a health benefit?

12 A. Under the assumption that the tar

13 that you're delivering has less carcinogens per

14 milligram than tar. I can agree with that.

15 That's the issue of the composition of the tar.

16 Q. So when we looked at the Budwell,

17 Goodman studies, those studies -- when I was

18 talking about tar, I kept pointing to tar. You

19 kept pointing to nicotine. You remember that?

20 A. Yes.

21 Q. And in those studies -- those

22 studies tended to show, the ones we looked at,

23 showed that the tar levels that were delivered

24 according to the human smoke simulator study




59






1 were in the same rank order as the tar levels

2 for the FTC test. Isn't that right?

3 A. The parameters she elected to put

4 into the machine. I'm more interested in the

5 human smoke studies showed that led up to that.

6 Q. And that's what some of these

7 studies talked about. Not all the

8 Budwell-Goodman studies were cross-sectional;

9 were they, Doctor?

10 A. That's right. The early ones

11 didn't talk about it. The ones that occurred

12 before '75 or so were actually on -- the early

13 studies that were used by Doctor Wycombe that we

14 talked about yesterday, in fact, talked about

15 what levels of puff volumes that people got.

16 And they increased their puff volumes when they

17 smoked a lower tar cigarette.

18 Q. But just in case it hasn't been

19 clear, what this -- I'm talking about the non

20 cross-sectional studies now that we looked at.

21 What happens is that Ms. Goodman or whoever else

22 is working on this, takes a group of smokers and

23 has them smoke various cigarettes. Right?

24 That's the general -- the general set up for the




60






1 experiment. Is that right?

2 A. Some of that, yes.

3 Q. And then what she'll do is she'll

4 see how much tar and nicotine she thinks the

5 smoker is actually getting from the various

6 kinds of cigarettes. Is that right?

7 A. Okay. Let's explain in detail how

8 it's done. They have people smoke cigarettes,

9 and they get a recording. They put that

10 recording into the simulator and smoke the

11 cigarette the same way the person smoked it and

12 obtain from the simulator the tar and nicotine

13 values. She's not directly measuring the tar

14 and nicotine people get.

15 Q. But you said the simulator is a

16 better measure than the FTC measure. Right?

17 A. Yes. Because the simulator can be

18 used to simulate the way many different kinds of

19 people smoke and not just one method, not just

20 thirty-five cc. puffs, two second puffs, 8/58

21 seconds in between. You can do anything you

22 want.

23 Q. And what these studies showed, the

24 ones that weren't cross-sectional showed, was




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1 that smokers will smoke the lower tar cigarettes

2 to a lower level of tar than they would the

3 higher tar cigarettes. That's what the studies

4 showed that we looked at this morning?

5 A. One or two of the studies showed

6 for -- I think you have one data point. I did

7 not quarrel with it -- that said there was a ten

8 milligram Marlboro Light I think that went out

9 to -- it doubled. It went up to fifty to

10 seventy, eighty percent. Then there was about a

11 fifteen percent increase. And when you were

12 done with that, you showed the number. And I

13 agreed with you that number was different. The

14 one with the Marlboro Regular was 85, and I

15 pointed out the one with the Marlboro 100 which

16 was also regular was not different. So yes. I

17 mean you can find results in these studies. And

18 we get to calculate the tar and nicotine ratio

19 of the product at that particular time.

20 Although I do know that over the period of this

21 class, that it's roughly been the same. We

22 don't have a big difference in the tar and

23 nicotine ratio.

24 Q. Just to be more concrete, Doctor,




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1 this is Plaintiff's 19 B which we've looked at.

2 Just so you can see what we're looking at, this

3 is the one called Changes In Smoker Profiles

4 With Changes In Nicotine Tar Delivery. Do you

5 see that?

6 A. Yeah, I do.

7 Q. And then it says "Three cigarette

8 models with different tar nicotine deliveries

9 were smoked by ten panelists over an extended

10 period." Do you see that?

11 A. Yeah. I see that.

12 Q. Okay. What that means is you have

13 ten panelists who are going to smoke all three

14 cigarettes. Right?

15 A. Yes.

16 Q. And then you're going to measure

17 how much tar and nicotine they get from all

18 three cigarettes on the human smoke simulator.

19 Right?

20 A. That is correct.

21 Q. And what you find when you look at

22 the results is that the tar levels that the

23 smoker received were in line with what the FTC

24 tests showed. Isn't that correct?




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1 A. They're all higher. They're in

2 the same rank order. And this isn't Marlboro

3 Lights versus Marlboro. Added nicotine, low

4 delivery, and the blends are different. I mean

5 I agree with you that it shows that. What we're

6 talking about is testing cigarettes between

7 Marlboro and Marlboro Light smokers where the

8 only difference is the dilution.

9 Q. Which you said is the only

10 difference between Marlboro and Marlboro Lights

11 incidentally, Doctor.

12 A. That's right. But not in this

13 test you're not doing that it.

14 Q. It says low dilution?

15 A. Yeah. Versus Marlboro. You're

16 telling me that X six D, six or whatever it is,

17 is a Marlboro?

18 Q. I'm not telling you anything,

19 Doctor, except I'm saying -- I'm asking you to

20 agree that these tar levels show reductions when

21 people went from Marlboro to the lower delivery

22 cigarettes under the FTC test method?

23 A. I agreed with you this morning.

24 Twenty-seven point three is higher than 21.0




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1 which, in turn, is higher than --

2 Q. And that's a reduction in tar?

3 A. I agree.

4 Q. And that reduction in tar is what

5 the public health community has been asking for,

6 a reduction in tar for all these years. Isn't

7 that right?

8 A. That's right.

9 Q. Now, you said -- excuse me.

10 A. So these cigarettes should have

11 been sold instead of Marlboro Lights.

12 Q. You said, Doctor, that Marlboro

13 Lights were designed to be as close as possible

14 to Marlboro Regulars. Is that right?

15 A. That's correct. Same blend only

16 different dilution holes. Maybe tipping paper

17 is different, the over wrap. But the whole idea

18 behind that brand -- and I sat in those meetings

19 for eight years -- was to keep it as close as

20 possible. And every minor change was tested on

21 consumer tests to make sure that was the effect.

22 Q. It was as close as possible?

23 A. Yes. Meaning that they had to be

24 acceptable -- I forget what the criteria were.




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1 But they had to be acceptable in the consumer

2 testing in some cases so they couldn't even tell

3 the difference.

4 Q. Okay. The way you've testified,

5 it sounds like you can be very precise about

6 figuring out what the delivery of a cigarette

7 will be under the FTC machine. Is that right?

8 A. No. This is over two hundred

9 panelists smoking all the different ways they

10 smoke with all the different variations from

11 cigarette to cigarette.

12 Q. I was asking a different

13 question. I'm asking you in terms of cigarette

14 design. My understanding from your testimony

15 you can be fairly precise about designing a

16 cigarette that comes out to certain parameters?

17 A. You can.

18 Q. And you're saying they got as

19 close as possible to Marlboros with Marlboro

20 Lights. Is that right?

21 A. No.

22 Q. That's what you said. Is that

23 right?

24 A. They designed a cigarette that




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1 allowed the smokers to get as close to Marlboro

2 Regulars with the Marlboro Lights, as evidenced

3 by the consumer test, if nothing else. That's

4 the final arbiter, you know, consumer test. If

5 you go back and look at the POL test, we talked

6 about that month after month after month. If

7 Marlboro Lights had a significantly different

8 experience than Marlboro, it would not have

9 drawn the number of smokers that it had from

10 Marlboro to Marlboro Lights. It would not have

11 happened. And that was the great concern that

12 the company had, that as tars became lighter and

13 lighter, they were going to lose the Marlboro

14 business because the Reds Marlboro smokers were

15 going to switch to Vantage or they were going to

16 switch to something to else. They had to give

17 them a cigarette that gave them essentially the

18 same experience.

19 Q. Well, let me try it this way,

20 Doctor. The FTC sets up this scale under the

21 FTC test for measuring tar. Right?

22 A. I'm sorry.

23 Q. Okay. There is an FTC test

24 method. Right?




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1 A. There is a test method.

2 Q. And it's measured in terms of

3 milligrams of tar. Is that right?

4 A. Correct.

5 Q. And the FTC made that

6 determination. Right? That it was going to be

7 measured in terms of milligrams?

8 A. That's correct.

9 Q. And they made a determination as

10 to how many decimal places you would go with

11 your determination of milligrams?

12 A. I agree.

13 Q. And they made a determination,

14 therefore, of what was, in its mind, the

15 significant degree of milligram difference to

16 report to smokers. Is that right?

17 A. Correct. And it changes over

18 time. As the tests became more precise, they

19 allowed people to report a greater position.

20 Yeah.

21 Q. And actually under the FTC's test,

22 how much lower is Marlboro Lights than Marlboro

23 Regulars in tar?

24 A. Under the FTC test, it's about




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1 thirty percent lower.

2 Q. Thirty percent lower. And so this

3 company that was able to design with great

4 precision the tar and nicotine yield decided

5 rather than going one percent lower, rather than

6 two percent lower, to go thirty percent lower.

7 Is that right?

8 A. On that test, yeah.

9 Q. And you call that as close as

10 possible. That's your testimony. Right?

11 A. No. When smoked by people --

12 Q. I'm sorry. You said as close as

13 possible; didn't you?

14 MR. TILLERY: He's arguing

15 now, Your Honor. Let him finish.

16 Q. (By Mr. Lombardi) I'm sorry. Go

17 ahead and finish your answer.

18 A. I'm just saying my remarks had to

19 do with the compensation issue not the machine

20 issue. As far as I know, you don't sell --

21 Philip Morris does not sell cigarettes to a

22 machine. If we want to talk about what it was

23 designed for, it was designed not to give a

24 number on the machine but to allow the user of




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1 this product to obtain the same experience from

2 that cigarette. That's how it was designed.

3 Q. Okay. I'm sorry. Are you done?

4 A. No. And we had the option of

5 changing it, as we did with other products so

6 that wouldn't happen. We made Merits. It's

7 different. So that's a different experience you

8 get from smoking that. And you could make it

9 taste as good, if you wish. We know that too.

10 But that's what I meant, talking about how the

11 people appreciated it not that eleven milligrams

12 of tar is the same as fifteen. That's not the

13 concern.

14 Q. Okay. Okay. And the extent to

15 which people appreciate it depends on each

16 individual who's appreciating it. Is that

17 right? Who's smoking the cigarette?

18 A. That's true.

19 Q. Okay. And one last point, Doctor,

20 just on this Cambridge thing. So there is no --

21 there is no confusion up to this point in time

22 with these brands, all the packages said ultra

23 low tar. Is that right?

24 A. We agreed on that this morning.




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1 Q. And when this Cambridge came out

2 later, it said lights on it. Is that right?

3 A. Yes. And that one says ultra

4 lights.

5 Q. Lights. Right?

6 A. Yes.

7 MR. LOMBARDI: Thank you.

8 I'm done, Your Honor.

9 MR. TILLERY: Nothing else,

10 Your Honor.

11 THE COURT: Okay. Are we

12 done with this witness?

13 MR. LOMBARDI: Yes. We're

14 finished.