Neal Benowitz, M.D. - Testimony Excerpts
21 (Witness sworn.)
22 NEAL BENOWITZ, M.D.
23 called as a witness on behalf of the plaintiff, being
24 first duly sworn, was examined and testified as follows:
35
1 DIRECT EXAMINATION
2 BY MR. BRICKMAN:
3 THE COURT: You may proceed.
4 Q. (By Mr. Brickman) Would you state your full name
5 for the record, please, sir?
6 A. Neal Benowitz.
7 Q. Dr. Benowitz, where do you live, sir?
8 A. In the San Francisco area, California.
9 Q. Are you married?
10 A. Yes.
11 Q. And do you have children?
12 A. Yes.
13 Q. And in opening statement, counsel for Philip
14 Morris referenced a Dr. Neal Benowitz who has done work
15 in the area of smoking and health and addiction and
16 compensation. Is that you?
17 A. It is.
18 Q. Let's find out a little bit about why he
19 referenced you. Can you give us your educational
20 background?
21 A. I did undergraduate training at Rensselaer
22 Polytechnic Institute in Troy, New York in physics.
23 I then followed up my medical school at the
24 University of Rochester in Rochester, New York. I
36
1 graduated from there with distinction of research in
2 1969.
3 Q. Let me back track for a second. When did you
4 graduate from college?
5 A. I didn't really graduate from college. I started
6 medical school after 3 years of undergraduate school.
7 Q. You didn't graduate? You went directly to
8 medical school?
9 A. Yes.
10 Q. Did you end up taking the boards for getting into
11 medical school?
12 A. No.
13 Q. How did you manage to get in without that? I
14 hope you're not a fraud on the Court now.
15 A. The University of Rochester at that time had an
16 opinion that their interview process was superior to the
17 standardized examination, so that was one of the few
18 medical schools that felt that they did not require
19 standardized examination if they interviewed, and they
20 looked at your grade transcripts, and if they thought
21 that you were qualified, they would admit you without
22 the examination.
23 Q. And you then went to medical school under those
24 sets of facts?
37
1 A. Yes.
2 Q. Now, you mentioned that you graduated with a
3 distinction in research, is that what you said?
4 A. Yes.
5 Q. What is that?
6 A. In our medical school, if you did a research
7 project and wrote a thesis while a medical student, then
8 you graduated with distinction for having done special
9 research qualification.
10 Q. Where did you end up doing your residency?
11 A. The Bronx Municipal Hospital Center, which is the
12 County Hospital in Bronx, New York.
13 Q. And what area did your do your residency?
14 A. Internal medicine.
15 Q. And when did you complete your residency and
16 internship?
17 A. In 1971.
18 Q. And what did do you following that?
19 A. I did a fellowship in clinical pharmacology at
20 the University of California, San Francisco, where I've
21 been ever since. I did two years training in clinical
22 pharmacology from 197l through l973.
23 Q. And then where did you go?
24 A. I joined the faculty at UC San Francisco as an
38
1 instructor for -- and currently full professor, and I've
2 been on the faculty since 1974.
3 Q. And you're there now?
4 A. I am.
5 Q. And what is your present position there?
6 A. As I said, professor of medicine, psychiatry, and
7 by pharmaceutical science, and chief of the clinical
8 pharmacology division in the department of medicine.
9 Q. And you're a full professor?
10 A. Yes.
11 Q. How long have you been a full professor there?
12 A. About 15 years.
13 Q. In the positions you've given us, what are your
14 basic responsibilities there, what areas do you have
15 responsibilities?
16 A. I have responsibility in three major areas. I
17 spent about 30 percent of my time in direct patient
18 care. I spend about 30 percent of my time in teaching
19 and administration, the latter having to do with my
20 division, and also dealing with pharmaceutical issues
21 for the City of San Francisco Hospital, and about 40
22 percent of my time is in research.
23 Q. With regard to your teaching, who do you teach
24 and what do you teach?
39
1 A. I teach medical students, medical residents, and
2 I do post-graduate teaching.
3 For medical students I run a course in
4 therapeutics; in other words, how to use drugs. And
5 then I also do a lot of what's called bed side teaching
6 for student and residents, which means I hear their
7 presentations about patients, we visit the patients at
8 the bed side and talk about their care. And then I also
9 give a number of lectures both in seminars and medical
10 school and post-graduate courses about various aspects
11 of work I do.
12 Q. Are you board certified in any areas?
13 A. Internal medicine, clinical pharmacology, and
14 medical toxicology. Those are the 3 separate boards.
15 Q. Could you tell us what the areas of clinical
16 pharmacology and medical toxicology cover, please?
17 A. Clinical -- well pharmacology is the science of
18 the action of drugs. Clinical pharmacology is the
19 specialty that deals with studying and teaching about
20 drug action in people. So I do a lot of research on the
21 effects of drugs in humans. And new drug development is
22 also a part of the clinical pharmacology.
23 Medical toxicology is in many ways a subsection of
24 clinical pharmacology, and that deals with injurious or
40
1 harmful effects of drugs and chemicals, so in that area
2 you study intoxication, drug overdoses, chemical
3 exposures, and other types of human exposures that cause
4 illness, and as part of that the California Poison
5 Control Center is part of the clinical pharmacology
6 division, and we deal with people who have drug
7 overdoses or chemical exposures, et cetera.
8 Q. Do you also work in the field of cardiology?
9 A. Yes. My main clinical activity is in cardiology.
10 I'm an internist with a special interest in
11 qualifications in cardiovascular disease. I see
12 patients in the clinic once a week, cardiology patients,
13 and then for two months of the year I'm in charge of one
14 of the medicine wards at the San Francisco General
15 Hospital where I work, and one month is cardiology, one
16 month is general internal medicine.
17 Q. Do you see people who have gotten sick as a
18 result of cigarette smoking?
19 A. Many. At a county hospital, many of my cardio
20 patients are or have been smokers, and smoking is a
21 major cause of cardiovascular disease.
22 Q. Did you also have involvement in the department
23 of psychiatry?
24 A. Yes. My involvement there stems from my work on
41
1 nicotine addiction. Traditionally, addiction has been a
2 discipline part of the psychiatry department, I guess, I
3 run some of my grants through the psychiatry
4 departments, and I also do teaching to psychiatric
5 residents involving addiction.
6 Q. You mentioned earlier being a professor of
7 biopharmaceutical science. What does that area cover?
8 A. That is a department that's actually in the
9 school pharmacy, and biopharmaceutical science is really
10 the study of drugs, new drugs, drug action. It's
11 similar to clinical pharmacology, but it really relate
12 to more studying how drugs work and involvement of new
13 drugs.
14 Q. You mentioned before that you do take care of
15 some patients. When is the last time you saw a patient?
16 A. Last Wednesday.
17 Q. And what was that for?
18 A. It was my weekly cardiology clinic.
19 Q. And do you have a clinic on a regular basis?
20 A. Yes.
21 Q. And do you see patients on a regular basis?
22 A. Yes.
23 Q. Do you advise patients on smoking cessation?
24 A. Yes.
42
1 Q. What advice do you give them?
2 A. I tell my patients that smoking is the most
3 important preventable cause of heart disease, and that
4 stopping smoking is the best thing they can do to
5 improve their health.
6 Q. Now, you mentioned that you also do research.
7 What areas have you conducted research in?
8 A. My research involves studying the actions of
9 drugs in people. Most of my research has been looking
10 at nicotine, its effects in humans, and also cigarette
11 smoking.
12 I've also done research with a number of other
13 drugs, mostly drugs people consume themselves that can
14 cause potential injury, so I've done studies with
15 caffeine, with cocaine, and most recently dietary
16 supplements that contain stimulants.
17 Q. Over time have you received various awards for
18 your work?
19 A. Yes.
20 Q. Are you listed in the book The Best Doctors In
21 America?
22 A. Yes.
23 Q. Let's go back to rewards. Are you the recipient
24 of something known as the Ove Ferno Award?
43
1 A. Yes.
2 Q. Could you tell the Court what that is?
3 A. Well, Ove Ferno is a Swedish physiologist who was
4 the person to develop nicotine chewing gums, which he
5 developed for Swedish submariners who couldn't smoke in
6 submarines, and to honor him an international award has
7 been developed, it's awarded every three years for
8 someone who has done distinguished research in the area
9 of the affects of nicotine and smoking and health.
10 Q. And I assume that's why you received your award
11 for your work in that area?
12 A. Yes.
13 Q. Have you also received an award known as the
14 Alton Ochsner Award?
15 A. Yes.
16 Q. What was that for? First of all, tell us who Dr.
17 Ochsner was.
18 A. Dr. Ochsner is a very famous -- was a very famous
19 surgeon who practiced in New Orleans, a clinic is named
20 after him in New Orleans. He was one of the first
21 people to observe the relationship between lung cancer
22 and smoking. When he first started practicing lung
23 cancers were very rare, and he noted a tremendous
24 increase in this rare cancer, and noted that most people
44
1 with lung cancer were smokers, and named after him the
2 -- it's the American College of Chest Physicians -- I'm
3 not sure which organization -- I think that's where the
4 sponsors are the Alton Ochsner Award, which is given
5 once a year to someone who has made distinguished
6 contributions in the area of smoking and health, and I
7 received that award for by work on nicotine addiction.
8 Q. You've also received something called the Rawls
9 Palmer Award?
10 A. Yes.
11 Q. Was that also for your work in this field?
12 A. Yes.
13 Q. Have you also received the American Thoracic
14 Society Presidential Commendation?
15 A. Yes.
16 Q. What did you receive that award for?
17 A. My work on smoking and health issues.
18 Q. Have you been chosen as a distinguished lecturer
19 at the Mayo Clinic?
20 A. I have.
21 Q. Have you recently received an award from your own
22 school?
23 A. Yes.
24 Q. What was that for?
45
1 A. Each year one faculty person from my institution
2 is chosen to be the annual clinical research lecturer,
3 so they choose one person who has made distinguished
4 research contribution, and I do a campus-wide lecture on
5 my research, and I did that this past October.
6 Q. What did you talk about?
7 A. I talked about the research I've done over the
8 years on studying nicotine and how the research on
9 nicotine can help reduce the tobacco plague, actually.
10 Q. Have you published some of your research?
11 A. I have.
12 Q. And approximately how many articles have you
13 published?
14 A. I've published more than 350 articles and book
15 chapter.
16 Q. And how many of these articles have dealt with
17 the issue of smoking and health?
18 A. Probably three quarters.
19 Q. And just briefly, what sort of journals have you
20 published in?
21 A. I've published in many journals. The New England
22 Journal of Medicine, Journal of The American Medical
23 Association, the American Journal of Public Health,
24 Clinical Pharmacology, journals, Journal of Pharmacology
46
1 Therapeutics, the Journal of the American College of
2 Cardiology, Journal of National Cancer Institute. Those
3 are just some.
4 Q. Are these typically what is known as peer review
5 journals?
6 A. They are.
7 Q. And just briefly, would you tell us what it means
8 to have your work peer reviewed?
9 A. When you submit an article to a peer review
10 journal, that article is reviewed both by the editors,
11 and it's also sent out to scientists with expertise in
12 the area of the person who submits the article, and
13 those scientists look at the article and determine if
14 it's valid, and if it's important and if it warrants
15 publication, and the editors will look at that comment,
16 and if it's judged to be all valid and important it gets
17 published.
18 Q. Have you also served as a peer reviewer?
19 A. Yes, many times.
20 Q. For what sort of articles?
21 A. Mostly articles involving nicotine effects and
22 tobacco smoking and health.
23 Q. Have you also served on editorial boards of any
24 of these journals?
47
1 A. Yes.
2 Q. What journals?
3 A. The Journal of Cardiograph Pharmacology, the
4 Archives of Environmental Health, The American Journal
5 of Medicine, and some others.
6 Q. You also mentioned you published chapters in book
7 or textbooks?
8 A. Yes.
9 Q. Approximately how many such books written,
10 chapters in?
11 A. 60 or 70.
12 Q. Have you also been invited to consult with the
13 Surgeon General's office and the National Cancer
14 Institute --
15 A. Yes.
16 Q. -- bear with me, let me get it out -- on issues
17 involving tobacco and nicotine and addiction?
18 A. Yes.
19 Q. And have you in fact been involved in the Surgeon
20 General's reports concerning smoking and health?
21 A. I have.
22 Q. Tell us what your involvement has been with the
23 Surgeon General reports.
24 A. I've been involved with several of them. The
48
1 1988 Surgeon General's report on nicotine addiction was
2 one in which I served as a senior scientific editor, so
3 I was one of the people who was involved in planning and
4 writing the whole report. I also contributed chapters
5 to earlier reports on the secondhand smoke and health,
6 on smokeless tobacco and health, and later reports on
7 cigarette smoking and smoking in children and smoking in
8 women.
9 Q. When was the first Surgeon General's report on
10 smoking and health?
11 A. 1964.
12 Q. And you mentioned before being on the, I think,
13 the 1988 Surgeon General's report you served?
14 A. Yes.
15 Q. What did you do for that one?
16 A. That was the one I served as a senior scientific
17 editor.
18 Q. And what did that one deal with?
19 A. That was the one that compiled the state of the
20 art of knowledge on nicotine addiction.
21 Q. You also mentioned participating in work of the
22 National Cancer Institute. What do you have you done
23 for the National Cancer Institute?
24 A. I've been involved most recently as a co-editor
49
1 and a chapter author on Monograph 13, which dealt with
2 the questions of --
3 Q. Is that the cover of it?
4 A. That's it.
5 Q. And that dealt with the risks associated with
6 smoking cigarettes with low machine measured yields of
7 tar and nicotine, as the title says?
8 A. Correct.
9 Q. Any other work you've done with the National
10 Cancer Institute?
11 A. I've been involved on committees sponsored by the
12 NCI in 1994, which looked at the smoking machine method,
13 and I've reviewed some grants for the National Cancer
14 Institute.
15 Q. Have you been a consultant for any other
16 governmental agencies?
17 A. Yes.
18 Q. And what other work have you done that dealt with
19 smoking and health for governmental agencies?
20 A. I served on the scientific advisory board for the
21 Environment Protection Agency when they did their risk
22 analysis for environmental tobacco smoke. I served as a
23 consultant to the Occupational Safety and Health
24 Administration when they were putting forth proposals to
50
1 control workplace smoking exposure, and I've also
2 consulted with the Food and Drug Administration when
3 they were dealing with the question of whether nicotine
4 is a drug and should be regulated.
5 Q. Did you also participate in the writing of any
6 earlier monographs by the National Cancer Institute on
7 smoking?
8 A. Yes, Monograph Number 7.
9 Q. That's it?
10 A. Right. The FTC cigarette -- Monograph, yes.
11 Q. And have you been invited to consult with
12 governments outside the U.S. for your expertise for
13 smoking and health?
14 A. Yes.
15 Q. Tell us what else.
16 A. I've been involved in two Canadian committees
17 dealing with product regulation questions. I've
18 consulted with the UK through their international
19 committee -- no, through their -- I forget what the test
20 is called, it's a national committee on smoking and
21 health. I was involved with them dealing with
22 cigarettes. I've consulted with world health
23 organizations dealing with the European smoking
24 policies.
51
1 Q. Have you also testified both in court and before
2 legislative bodies with regard to issues dealing with
3 smoking and health and nicotine?
4 A. Yes.
5 Q. Were you in fact asked to be a witness on behalf
6 of a number of states in their litigation against the
7 tobacco companies?
8 A. Yes.
9 Q. And do you recall which states you were asked to
10 testify or to be a witness for?
11 A. Mississippi, Florida, Texas, and Washington
12 state.
13 Q. As I understand, you have researched in the field
14 of smoking and health, correct?
15 A. Yes.
16 Q. Nicotine?
17 A. Yes.
18 Q. Addiction?
19 A. Yes.
20 Q. Have you also written in those particular areas?
21 A. Yes.
22 Q. And in your practice do you deal with those
23 particular areas?
24 A. Yes.
52
1 MR. BRICKMAN: Your Honor, at this time we would
2 offer Dr. Benowitz as an expert in the field of smoking
3 and health and the related matters dealing with nicotine
4 addiction and other matters in that area.
17 MR. BRICKMAN: Thank you, sir.
18 Q. Dr. Benowitz, you mentioned earlier that you see
19 various people who are smokers, correct?
20 A. Yes.
21 Q. And you counsel them about their smoking,
22 correct?
23 A. Yes.
24 Q. Do you counsel them about quitting smoking?
53
1 A. Yes. I tell everyone that quitting is probably
2 the best thing they can do for their health.
3 Q. As a result of your practice, have you been able
4 to get involved in the issues of the ease or the
5 difficulty of quitting smoking?
6 A. Yes.
7 Q. How is that?
8 A. Well, I counsel my patients to quit, and
9 sometimes they are able to do so, and mostly they are
10 not able to do so, at least for some time.
11 Q. Let's talk about that for a moment, if we could.
12 Do most smokers succeed at quitting the first time they
13 try?
14 A. Most do not succeed the first time. On average
15 it takes smokers four or time times before they are
16 successful.
17 MR. LOMBARDI: May I have a standing objection?
18 THE COURT: You may have a standing objection
19 certainly on this line with this witness.
20 MR. LOMBARDI: Thank you, Your Honor, and the
21 line, I guess, is the ease and difficulty of quitting
22 smoking, just so we are specific.
23 THE COURT: Addiction.
24 MR. LOMBARDI: And addiction as well, thank you.
54
1 Q. (By Mr. Brickman) Why do most smokers relapse, or
2 why are they unable to quit after that when they first
3 try to quit?
4 A. Well, the difficulty of quilting has to do with
5 addiction, because smokers have come to rely on nicotine
6 as a way to deal with life's stress, to deal with their
7 mood, to deal with their arousal level, and addicted
8 smokers, when they quit smoking, experience withdrawal
9 symptoms, which are very disruptive. That's why people
10 have failed at quitting. Relapse is really prompted by
11 some of the same factors that make people smoke. For
12 example, stress is a major cause of relapse, and most
13 smokers will tell you that they use cigarettes to deal
14 with stress, when they are stressed they smoke a
15 cigarette, it makes them feel better, and the first time
16 they have severe stress after they try to quit, they
17 want to have a cigarette.
18 Also, other factors that play a role are
19 depression, anxiety, can prompt relapse, and sometimes
20 things like alcohol, people commonly smoke when drinking
21 alcohol and they are used to that connection, they have
22 alcohol, their control may be reduced a little bit and
23 they relapse, but that's another factor for relapse.
24 Q. You mentioned they have certain symptoms. Are
55
1 are those physical or emotional, or what kind of
2 symptoms are you referring to?
3 A. They are emotional and behavioral symptoms, but
4 they are determined by changes in brain chemistry that
5 are physical.
6 Q. What percentage of people are able to quit?
7 A. Well, the current data indicate that about 30
8 percent of smokers try to quit each year, and three
9 percent succeed, so about one in ten succeeds each year.
10 Q. Is the difficulty or inability to quit smoking a
11 significant aspect of smoking behavior?
12 A. Absolutely. Again, the same surveys indicate
13 that 70 percent of people wish they weren't smoking at
14 all and would like to quit if they could. The reason
15 they keep on smoking is because they are addicted.
16 Q. Dr. Benowitz, you've been counseled patients to
17 quit smoking for a number of years?
18 A. Yes.
19 Q. Have you been honing your skills in this area?
20 A. I suppose, yes.
21 Q. Trying, anyway?
22 A. Yes.
23 Q. You are by most accounts one of the leading
24 experts in this field. Are your patients able to quit
56
1 after you've counseled them to quit?
2 A. Some are, but most can't quit, at least the first
3 time, they require multiple attempts over years to be
4 successful.
5 Q. Do you see patients who have suffered injuries as
6 a result of cigarette smoking? I think you told me
7 earlier you did?
8 A. Yes.
19 Q. You told us earlier you do treat people who have
20 suffered from disease caused by cigarette smoking?
21 A. Yes.
22 Q. When you get these patients in your room in the
23 clinic, you are talking to them, do you tell them what's
24 caused their problem?
57
1 A. Absolutely.
2 Q. Do you tell them to quit?
3 A. Yes.
4 Q. Do they then understand they've had this problem
5 from cigarette smoking?
6 A. Yes.
7 Q. Those people are able to quit, aren't they?
8 A. A few, but many try and are not successful, or
9 have to try multiple times before they can, even though
10 they know that smoking is hurting their health.
11 Q. And is that for the same reason you gave before,
12 that they are unable to quit?
13 A. Yes, yes.
14 Q. In simple terms, with a simple person here, what
15 is addiction?
16 A. In the simplest terms, it is loss of control of
17 the use of a drug, which means that when you want to
18 stop its use it's difficult.
19 Q. Are you familiar with how the U.S. Surgeon
20 General defines addiction?
21 A. Yes.
22 Q. Can you explain how the Surgeon General defines
23 addiction?
24 A. There are three main criteria for addiction. One
58
1 is compulsive use of a drug, highly controlled or
2 compulsive use.
3 Q. We have got a little thing up here. Are these
4 some of the things you talk about?
5 A. Yes.
6 Q. Go ahead and go through them.
7 A. "Compulsive use" means it's difficult not to use
8 it when you choose not to. He second element is psycho
9 active effects, which means the drug has actions on the
10 brain and affects mood or behavior. And the third one
11 is that there is drug reenforced behavior, which means
12 that the taking of the drug is dependent upon the
13 presence of that drug.
14 For example, someone may be addicted to cigarette
15 smoking, but we know it's nicotine addiction, because if
16 you take nicotine out of the cigarettes, people don't
17 smoke them, so they are addicted to the nicotine, not to
18 the cigarettes.
19 Q. Are there other additional criteria why that
20 affects addiction?
21 A. There are. Other behaviors that are commonly
22 seen with nicotine addiction, such as stereotypic
23 patterns of use, which means people tend to smoke
24 cigarettes in a pretty consistent way from day-to-day
59
1 use, despite harmful effects. People know that smoking
2 is harming them. Relapse or going back to smoking when
3 they try to quit, and then tolerance, which means after
4 time there is less effects of the drug on the body.
5 Dependence, physical dependence, which means withdrawal
6 symptoms when you try to quit. And also pleasurable
7 effects, enjoying smoking, which most smokers do.
8 Q. Under your simple definition of addiction, are
9 cigarettes and cigarette smoking addictive?
10 A. Yes.
11 Q. Under the Surgeon General's definition, are
12 cigarettes and cigarette smoking addictive?
13 A. Yes.
14 Q. The slide that we referenced, and I see up there
15 we have a typo. Is the date on there wrong?
16 A. Yes. These are really the criteria developed in
17 the l988 Surgeon General's report on addiction.
18 Q. We will have to get after the typist. But that
19 is one of the Surgeon General's report that you in fact
20 worked on?
21 A. It is.
22 Q. Now, let's go back a second. Do cigarette
23 smoking fit all of those criteria you've listed
24 previously?
60
1 A. Yes.
2 Q. What is the primary constituent in cigarettes
3 that makes them addictive?
4 A. Nicotine.
5 Q. What did the Surgeon General conclude in l988 as
6 to what was a primary constituent within cigarettes that
7 caused them to be addictive?
8 A. It was nicotine was the cause of tobacco
9 addiction.
10 Q. And what did the Surgeon General conclude as to
11 whether cigarette addiction was similar to addiction to
12 other drugs, like cocaine or heroin?
13 A. Well, that it was similar. Here, this is the
14 exact language on the screen.
15 Q. This w there is from the 1988 Surgeon General's
16 report?
17 A. Yes.
10 MR. BRICKMAN: It's not necessary. I appreciate
11 counsel working with me, but we will move forward.
12 Let's go ahead with regard to your own knowledge from
13 the l988 Surgeon General's report, what did they find
14 with regard to whether cigarette smoking and nicotine in
15 particular was similar to other drug usage?
16 A. That the processes of addiction were very similar
17 for nicotines and drugs such as heroin or cocaine, other
18 drugs of abuse.
19 Q. To your knowledge, does Philip Morris now
20 acknowledge that cigarette smoking is addictive?
21 A. Yes. They do on a web site.
22 Q. Do you know when they first began acknowledging
23 that?
24 A. Either in 2000 or 2001.
62
1 Q. Prior to that time, what was Philip Morris's
2 public position on cigarettes and addiction?
8 Q. (By Mr. Brickman) Go ahead, Dr. Benowitz, what
9 was Philip Morris's previous position on addiction in
10 cigarette smoking?
11 A. That cigarette smoking was not addicting, that
12 many people quit, that if you want to quit you could
13 just quit.
14 Q. And this is a picture from the testimony before
15 Congress?
16 A. It is.
17 Q. Where they denied cigarette smoking was
18 addictive?
19 A. Yes.
20 Q. What impact does that have on patients trying to
21 quit?
4 Q. (By Mr. Brickman) Doctor, in your work with
5 patients who smoke and your efforts to quit, and are
6 there -- are there reasons or rationalizations that
7 patients make to not quit?
8 A. Yes.
9 Q. And why do they do that?
10 MR. LOMBARDI: Objection, hearsay, Your Honor.
11 MR. BRICKMAN: This is a medical doctor who is
12 getting this --
13 THE COURT: Within the context of his medical
14 expertise, I'll allow it in.
15 Q. (By Mr. Brickman) Could you verbalize some of the
16 things as to why they don't quit?
17 A. Well, in many cases they say that they've tried
18 to quit and they can't, that they can't function without
19 cigarettes. That when they get stressed they just need
20 a cigarette.
21 Q. How do they deal internally with the fact, if you
22 know, as to the fact that cigarette smoking is so
23 harmful to them?
24 A. Well, it varies with different populations of
64
1 smokers. In my population, some of them try to say,
2 well, I'll smoking fewer cigarettes and maybe that will
3 help, although many can't. They'll say that they just
4 can't quit smoking. That's different from the general
5 population of smokers who rationalize it, but my
6 patients all know that smoking is injuring them.
14 Q. (By Mr. Brickman) Are you familiar, however, as a
15 result of your research in this field, as to the various
16 reasons and how the general public who smokes deals with
17 the conflict between continuing to smoke and the
18 knowledge that it causes them harm?
7 A. Yes. One of the key issues in addictions of all
8 sorts, not just tobacco, is what keeps people using the
9 drug, despite the recognition that it's harmful to their
10 health, and that's a big issue in smoking, because most
11 people who smoke cigarettes are not consciously trying
12 to hurt themselves. They are addicted and they want to
13 continue using the drug, and they need to find a way to
14 rationalize how they can do that.
15 Q. And how do they rationalize it, if you know,
16 based upon your own research?
17 MR. LOMBARDI: The same objection.
18 THE COURT: Overruled on that.
19 A. There has been a lot of research in this area,
20 and people do it in part by minimizing the risk to
21 themselves.
22 Q. What do you mean by that?
23 A. It means someone can say, well, I know that
24 smoking can be harmful, but I'm in good shape, and it's
66
1 really more harmful for someone else than it is for me.
2 Or they will say I know smoking is harmful, but it takes
3 time, and I'm still feeling good, and when I feel sick
4 then I'll stop smoking. Or they'll say, well, I've
5 heard from the government that smoking is bad for my
6 health, but I also know that there is controversy about
7 it, that's it's not settled, but yet tobacco company
8 advertisements or something may say that there is still
9 controversy about whether smoking is harmful, and
10 therefore, since it's not settled, I'll wait until there
11 is a more definitive answer. So people need to find a
12 way to minimize the idea that they are hurting
13 themselves.
14 Q. Are denials like you were referring to earlier by
15 Philip Morris executives that smoking is addictive, part
16 of that keeping the issue in controversy, in your
17 opinion, based on your research?
4 Q. (By Mr. Brickman) You mentioned earlier that you
5 were aware that Philip Morris has previously denied
6 cigarette smoking is addictive?
7 A. Yes.
8 Q. Have you learned that in your own research in the
9 field and as a result of being a citizen of this
10 country?
11 A. Yes.
12 Q. What impact does that have on what you were
13 referring to earlier about keeping the matter in
14 controversy?
68
1 A. Well, it comes in this part with respect to what
2 a person's experience is with quitting. When one
3 understands that this is a drug addiction, then one is
4 more likely to seek help if you can't quit, to get
5 counseling, to take medications. If you are told, well,
6 you can quit if you want, it's just a matter of having
7 willpower, then people think of themselves as being
8 weak, as being ineffectual, and it turns out that
9 feeling bad about yourself, being a failure is one of
10 the things that makes you smoke more cigarettes, because
11 cigarettes make you feel better, so it undermines
12 people's entry to the most effective treatment system.
13 Q. Would a statement that smoking cigarettes is
14 similar to someone's desire for gummy bears also be of
15 the same nature that you just described?
69
1 A. That tremendously trivializes smoking, especially
2 for people like my patients, who have got terrible
3 diseases, smoking is making it worse, they tried many
4 times to quit and they can't. To them it's like gummy
5 bears is really trivializing a very serious problem.
17 Q. Let's switch gears for a moment. You mentioned
18 that nicotine was the primary constituent in cigarettes,
19 cigarette smoking caused it to be addictive. Could you
20 explain to the Court what effect nicotine has on the
21 central nervous system of the smoker?
22 A. Yes. The process starts first with the cigarette
23 smoke, which is an aerosol, an aerosol consisting of
24 droplets containing tar and nicotine and water and gas,
70
1 which includes a mixture of gases. A person inhales
2 cigarette smoke. That smoke goes into the lungs, and
3 then very quickly nicotine is absorbed into the blood
4 vessels of the lungs, it goes into the heart and then
5 out in the blood vessels to the brain. It takes about,
6 15 seconds from a person taking a puff to that nicotine
7 getting to the brain and having effects.
8 When nicotine gets to the brain it acts by binding
9 or attaching itself to proteins that are called
10 receptors. Receptors are proteins that act like a lock
11 mechanism, so some chemical binds to them, a chemical
12 acts like a key, it activates the lock, and then that
13 causes some other brain processes to occur, some of that
14 to occur in the brain.
15 These receptors in the brain that nicotine binds
16 to are there for the binding of a brain chemical called
17 acetylcholine. Acetylcholine is a hormone in the brain
18 that's responsible for communication from one brain cell
19 to the next, and it works by binding to these receptors.
20 It turns out nicotine has got a chemical shape and
21 structure that is similar to acetylcholine, so it goes
22 and binds to and activates receptors that are meant for
23 the body's own hormone. When you activate these
24 receptors, that in turn activates other processes, and
71
1 those processes mostly occur by release of other brain
2 hormones.
3 One hormone which is critical for mixing other
4 drugs is dopamine. Dopamine is a chemical that when
5 it's released is involved with pleasure, it's involved
6 with arousal, stipulation. Any time a persons
7 experiences a pleasurable event or activity, dopamine is
8 released. Every drug of abuse releases dopamine, and
9 every drug of abuse makes people feel good. So when you
10 take nicotine, you're basically driving this system that
11 mediates pleasure by the use of a drug rather than your
12 own internal acetylcholine. There are other hormones
13 that release that involve arousal, concentration, mood,
14 some reduce depression, some reduce anxiety, some are
15 involved with learning, some involve appetite
16 suppression.
17 So what happens is a person can take nicotine from
18 a cigarette and can drive particular hormones systems
19 sort of artificially.
20 If you talk to a smoker and you asked them what
21 they get from their cigarettes, you'll find effects like
22 the first cigarette in the morning helps me wake up and
23 be stimulated like caffeine, so it helps me get going.
24 They'll say that if I'm getting fatigued during the day
72
1 a cigarette will help pep me up and help me concentrate
2 on the task. They'll also say that if I'm feeling
3 stressed or depressed a cigarette will make me feel
4 better. If I'm feeling anxious, it will relax me, and I
5 can have a cigarette before bed time to help me unwind
6 and fall asleep.
7 The reason why nicotine does all of these
8 different things is because it activates different
9 hormone systems in the body, and it activates them on
10 the basis of using the drug rather than waiting for the
11 body's own system to do it. So part of the reason for
12 addiction is that people come to use nicotine to
13 modulate their arousal level, keep them stipulated when
14 they will need to be stimulated, to relax them when they
15 need to, and to deal with moods, especially stress or
16 anxiety, and also because they like it, it's pleasure.
17 The other part of it has to do with what's called
18 physical dependency, which means after awhile the brain
19 becomes dependent on nicotine for normal functioning.
20 When the brain get exposed to any psycho active
21 substance, it tries to adopt or adjust its function to
22 reduce the change.
23 In the case of nicotine, there is a change in the
24 structure of the brain, there is an increased number and
73
1 change in function of nicotine receptors, and after
2 awhile the brain requires nicotine for normal hormone
3 release. Then what happens with a person who smokes for
4 awhile and they stop, then they find that without the
5 nicotine the dopamine released, for example, is not only
6 not stipulating, but it's subnormal, so what the smoker
7 finds is that things are not pleasurable, they don't
8 find life pleasurable, they feel fatigued, they feel
9 depressed, they feel anxious. So it's the opposite of
10 the primary effects.
11 The net result of these two processes is that
12 smokers that use nicotine to deal with mood and arousal
13 and also when they don't have nicotine their lives are
14 disrupted, they don't feel right, they end up having to
15 use nicotine on a regular basis to feel normal, and
16 that's the addiction process.
17 Q. To assist in going over what you've just said, do
18 you have a video that we can show the Court?
19 A. I do.
20 Q. Before we do, let me ask you one question before
21 we start. You mentioned earlier the fact that the
22 nicotine gets to the brain, what do you say, in 15
23 seconds?
24 A. Yes.
74
1 Q. What is the significance of that fact?
2 A. Well, it's well known that the shorter the period
3 of time between a person taking a drug and getting the
4 effects the more addictive that drug is. So if you do
5 something and get an effect, there is better chance of
6 reinforcement.
7 There is also factors, such as when you rapidly
8 absorb a drug you get much higher levels of
9 concentration in the bloodstream, and therefore, you get
10 a much more intensive effect.
11 There is also an issue that there is tolerance,
12 the brain becomes tolerant or adapts to a drug pretty
13 quickly, and the faster you introduce a drug to the
14 brain, the less time there is for tolerance.
15 The final element has to do with determining the
16 dose. A person who takes a drug by smoking knows what
17 the effect is going to be in 15 or 20 seconds, and then
18 for the next puff they can adjust and take more or less
19 nicotine.
20 Q. Why are they adjusting? I don't understand that.
21 A. Well, nicotine can have different effects
22 according to the level of the brain. Some levels can be
23 stimulating. Other levels might be more sedated. So
24 smokers can adjust from puff to puff to get in just the
75
1 amount of nicotine to get the effect they want. And
2 that is an important part of how people smoke and why
3 people smoke what they smoke.
3 Q. (By Mr. Brickman) Before we play the video, I
4 want to follow up on a point you made before we closed,
5 and that had to do with the speed in which the nicotine
6 gets to the brain. Is the reason that it gets to the
7 brain faster because of the form it is in when it's
8 inhaled, is that what you're saying?
9 A. It's because it's inhaled in smoke and it's
10 absorbed very quickly through the lungs.
11 Q. How does that impact effort to quit when people
12 use things like a patch or a gum?
13 A. People who use pat chess and gums find that
14 nicotine in other sources does not do the same thing for
15 them as cigarettes. It's not as satisfying, not as
16 pleasurable in the same way, and it also -- it helps
17 withdrawal symptoms, but doesn't give people the things
18 that he normally gets from a cigarette, and that's part
19 of the reasons why those medications, while helpful, are
20 no cure for smoking.
21 Q. Do they work as quickly as when it's inhaled?
22 A. No. Gums take 30 minutes to absorb to the peak
23 level. Patches take several hours, and when you absorb
24 it that quickly, the psychological effects are much
80
1 different.
2 Q. Does that then in some way limit their ability to
3 help people quit?
4 A. Yes. Like I say, they do reduce some withdrawal
5 symptoms, but they don't provide any of the satisfaction
6 that smokers want from nicotine or from cigarettes.
7 Q. At this time I'd like to play that video, and if
8 you would comment on it, and if you need to stop it at
9 certain point to point out things out, would you please
10 do so, sir?
11 A. Yes.
12 Q. And I believe you can do it from that touch
13 screen.
14 A. I can stop it from there?
15 MR. BRICKMAN: You have to tell this young lady to
16 stop it, but if you say pause, she'll be quick. Go
17 ahead and play it please.
18 A. Pause. This is the smoke, which is the aerosol,
19 the filmy part of the screen, going down through the
20 trachea, through the airway, going down, and it's going
21 to end up in the lungs. Stop. These --
22 Q. Use the screen.
23 A. These forms are the particles that form the
24 aerosol, and the particles consist of tar, of mortar and
81
1 nicotine, and you will see that these little red or
2 orange things are going to be the symbols for nicotine,
3 being carried in the air sacs.
4 Q. Go ahead. Play it.
5 A. So now these particles are in the air sac itself,
6 and then when the particles are in the air sac they
7 again release nicotine, which will cross into the blood
8 vessels. And here is a blood vessel with red blood
9 cells flowing through it. And here comes the nicotine
10 molecules crossing into the blood stream and being
11 carried out from the lung into the heart.
12 Here is a diagram of the heart. This shows
13 nicotine molecules coming in from the lung into the
14 heart and out through the blood vessels to the brain.
15 And this is the brain, and this shows just different
16 places in the brain where the nicotine receptors are.
17 Stop this. These are nerve cells within the
18 brain. These cells fire, and when one fires it
19 activates the next one, and that's how information gets
20 communicated from one cell to the next and how thinking
21 behavior occurs.
22 Stop. This talks about -- describes different
23 parts of the brain cells. The neuron, the brain cell
24 itself, and you can see this is the axon, which is a
82
1 projection of the neuron, where electrical currents
2 fire, and that communicates from one cell to the next.
3 And then right here is a nerve ending, and that's where
4 the actual transmission of chemical signals go from one
5 cell to the next.
6 Q. You need to clear your screen, if we can move on.
7 A. Okay. Here is one cell firing and the next cell
8 fires. Stop this. This is the nerve ending itself,
9 which is at the end of the axon, and when this nerve
10 fires, it will release chemicals from the nerve ending.
11 Those are chemicals in the nerve ending, and they will
12 be released into space and they will act on the next
13 neuron, the next nerve cell.
14 And here is -- stop this -- this is like a cartoon
15 of what the receptors are like. This receptor is
16 normally meant for acetylcholine, which is shown by this
17 little symbol of, acetylcholine. This will bind to this
18 receptor, and these receptors are like channels, and
19 when something binds to them the channel will open up,
20 and other chemicals go through the channel, which
21 activates the process. And so you'll see the
22 acetylcholine will bind to this and it opens up.
23 Sodium ions and calcium ions will go in, part of
24 the activation process. And what occurs is that
83
1 activation receptors cause the dopamine to be
2 released -- stop for a second -- these little green
3 balls are meant to be dopamine molecules. They are
4 released from the nerve terminal of one cell on to
5 receptors on the next neuron. These little things are
6 like craters, they are meant to be receptors for the
7 next neuron, which will then cause something to occur,
8 like someone to experience pleasure.
9 Okay. Here is a person smoking again. This will
10 show nicotine and absorption and nicotine activating the
11 same receptors in the brain. Nicotine in the brain
12 itself. And going to the receptors. And here nicotine
13 is binding to these receptors that are meant for
14 acetylcholine, but now there is lots of nicotine
15 floating around, activated the receptors, and causes the
16 nerve ending to release dopamine, but because there is
17 more stimulation than normal, there is more dopamine
18 released than normal, so there is more dopamine affects,
19 more pleasure, more arousal.
20 This is showing the same thing. As I stated, some
21 of the effects of dopamine released includes pleasure,
22 arousal, attention.
23 There are also other hormones released that do
24 other things, and I mentioned those before. Stop that.
84
1 Here are a list of some of the things that occur in
2 smokers when they don't have nicotine, irritability,
3 drowsiness, difficulty concentrating, depression,
4 hunger. Weight gain. Sleep disturbance. Those are
5 commonly reported withdrawal symptoms of smokers.
6 Here is -- stop here -- I talked about adaptation
7 of tolerance, and when that occurs, there is a change in
8 these acetylcholine receptors. There are greater
9 numbers of receptors that are present, and there is also
10 change in the function. So the nerve structures really
11 is changing. One thing nicotine does when it binds, it
12 blocks the effect of acetylcholine normally, and it
13 also, through the adaptation, requires nicotine for
14 normal release.
15 So here is like a tolerant brain in the presence
16 of nicotine, and now you're back to normal dopamine
17 release. So there is nicotine present, but this is just
18 normal function.
19 When you stop smoking, smoking cessation, all of a
20 sudden a lot of receptors and there is not enough
21 nicotine to cause release, and what's shown here is a
22 subnormal release. So there are very few dopamine
23 molecules released compared to even normal, and this is
24 what causes the withdrawal symptoms.
85
1 Q. (By Mr. Brickman) You mentioned earlier that the
2 Surgeon General had concluded that cigarette smoking was
3 addictive in manners similar to other drugs, like
4 cocaine and heroin. Do you recall that?
5 A. Yes.
6 Q. Has there been research done comparing to the
7 effects of nicotine to these drugs?
8 A. Yes.
9 Q. And how do they compare to nicotine?
14 A. Well, there are some differences and many
15 commonalities. I should say first, the main difference
16 has to do with intoxication. I'll get back to that
17 later. Heroin and cocaine are intoxicating. They
18 impair function, whereas nicotine does not. There are
19 also a difference in terms of the nature of the
20 withdrawal symptoms. They all produce withdrawal
21 symptoms, but heroin withdrawal is more disruptive in
22 short term, while nicotine withdrawal can be quite as
23 disruptive in the long term. What they have in common,
24 are one, they all are associated with pleasure, people
86
1 like using the drugs. They are all psycho active. They
2 all have very good reinforcers of behavior. People and
3 animals will continue to do things to get these drugs.
4 They are all associated with the development of
5 tolerance. They are all associated with withdrawal
6 symptoms when you quit. They all are associated with
7 problems quitting. They are associated with similar
8 relapse rates when people try to quit. In many cases
9 they show commonalities in what's called a use of an
10 agonist to treat them. For example, methadone for
11 heroin and nicotine for smoking. These are drugs which
12 are all used, despite people knowing that it's harmful,
13 and they all involve dopamine release in certain
14 portions of the brain and other common chemical effects.
15 So the addiction process is quite similar,
16 actually, for the drugs. The big difference is really
17 intoxication, and in many ways, intoxication, or the
18 lack of intoxication, makes nicotine more addictive. A
19 person who is using alcohol or cocaine, it's difficult
20 to do a job and to function or to function with your
21 family because when you're intoxicated it impairs your
22 performance. You're not free to use the drug all day
23 long because it's not appropriate to be loaded with the
24 drugs at various time of the day. Nicotine is
87
1 different. It does not intoxicate. It does not impair
2 your performance, and therefore, you can be free to use
3 nicotine throughout work, through the entire day, and to
4 adjust the dose age of nicotine to just what you want
5 without any impediment of intoxication. So the lack of
6 intoxication makes nicotine in many ways more addictive
7 than other drugs.
8 Q. With regard to the ability to quit smoking, how
9 does it compare with the ease or difficulty of
10 smoking -- of quitting other drugs, such as you've just
11 discussed?
12 A. Well, when polydrug users have been studied --
13 Q. Polydrug users is what?
14 A. Polydrug users, they use multiple drugs, like
15 alcohol, heroin, and cigarettes, or a combination,
16 cocaine. Many drug users use multiple drugs. In fact,
17 most illicit drug users also smokes cigarettes. It's a
18 drug that's most difficult to quit. In the majority of
19 the people it is cigarettes. If you're asked of all the
20 drugs used, which drug would be hardest to stop, and
21 most people say cigarettes are harder than their illicit
22 drugs.
23 Q. Let's switch gears again a little bit. And I
24 would like to just give a little background just to set
88
1 the stage for what we are going to go into. I want to
2 talk a little bit about nicotine in the cigarettes
3 themselves. Does a Marlboro Light or a Cambridge Light
4 cigarette contain less nicotine, per se, in the
5 cigarette itself before it is smoked than a Marlboro
6 regular or a Cambridge regular?
7 A. No. The tobacco is very similar and the amount
8 of nicotine in the tobacco is very similar.
9 Q. How is it then that you see these FTC ratings
10 with different nicotine levels for cigarettes, like
11 Marlboro Lights and Marlboro regulars, or Cambridge
12 Lights and Cambridge regulars?
13 A. It has to do with the details of the machine
14 testing method, and the engineering characteristics of
15 the cigarettes.
16 Q. So, just so I'm clear, the number you see from
17 the FTC is wit not the inherent nicotine number or
18 amount of nicotine in a cigarette, correct?
19 A. No. There is not that relationship for
20 commercial cigarettes between what is actually contained
21 in the raw, the tobacco or nicotine, and what the
22 machine determine yield is.
23 Q. Tell us just briefly, what does the machine do
24 and what does it measure?
89
1 A. The machine is basically a syringe that sucks
2 smoke at a certain rate from a cigarette.
3 Q. We have got a picture I think of the FTC machine
4 we have seen previously. Is this it?
5 A. Yes.
6 Q. And what is it doing?
7 A. Well, these things are the syringes, this is
8 smoking multiple cigarettes, and that syringe, the
9 barrel of the syringe will withdraw, in order to take 35
10 cc's of smoke in exactly two seconds. As it's doing
11 that, the smoke gets pulled through a paper filter, a
12 Cambridge filter, which traps the tar and nicotine and
13 measures, and also the gas gets measured for carbon
14 monoxide. This machine works by withdrawing 35 ml every
15 60 seconds until the cigarette is burned down to three
16 millimeters above the filter overwrap.
17 Now, the overwrap is the paper that goes over the
18 filter and the bottom part of the cigarette. So it gets
19 burned down at a standard distance, three millimeters
20 above that. That's the standard machine testing.
21 There are ways to engineer cigarettes by machine
22 testing with the same amount of tobacco that generate
23 different numbers.
24 For example, if you have a cigarette that burns
90
1 faster, then the machine will take fewer puffs before it
2 burns down to the certain mark, and there will be less a
3 yield. If you put in a long filter overwrap so it's
4 just paper, the machine test will stop above the
5 overwrap, but a smoker can keep smoking below the
6 overwrap if there is still tobacco there, so that is the
7 second way for less yield.
8 Another way is to increase ventilation.
9 Ventilation has to do with the amount of fresh air that
10 gets drawn into the cigarette as it gets puffed. And
11 ventilation can be increased by more porous paper, or by
12 ventilation holes that are drilled, very small holes
13 drilled into the filter, so when the syringe puffs back,
14 it's drawing back smoke, but also sucking in fresh air
15 from the room, so you get less actual tar and nicotine
16 coming through.
17 It's also possible to expand the tobacco to change
18 the diameter and length of the lob. A number of
19 engineering characteristics can change the yield, even
20 though the quantity of tobacco and the amount of the
21 nicotine is the same.
22 Q. Again briefly, is the FTC number that gets
23 recorded, does that tell a smoker what he or she is
24 actually going to be inhaling from the cigarette?
91
1 MR. LOMBARDI: Objection, preemption, Your Honor.
2 THE COURT: Overruled.
3 A. Well, the answer is no, unless this person
4 happens to smoke exactly like the machine does, which
5 virtually nobody does. These machines perimeters were
6 developed in the l930's based on observations of a few
7 smokers of nonfiltered cigarettes back then, and now a
8 days we know that smokers smoke much differently than
9 these machines.
10 Q. Based on your own research in this area, do you
11 have a general understanding as to whether the FTC
12 number that is published is low or high compared to what
13 an actual smoker gets?
14 MR. LOMBARDI: The same objection.
15 THE COURT: Overruled.
16 A. For these people, their actual intake is much
17 greater than the FTC number.
18 Q. (By Mr. Brickman) Based on your work in the
19 field, your research, your talking to patients, do they
20 understand that?
21 A. No. Most patients think that low yield
22 cigarettes are fundamentally different and contain less
23 of something than do higher yield cigarettes.
24 Q. Let me stop you. That's the exact opposite of
92
1 what you said is in fact the case?
2 A. That's correct.
3 Q. Smokers think that the cigarettes themselves are
4 inherently different?
5 A. Yes.
6 Q. And is it your understanding that's why they
7 believe they are getting lower tar and nicotine?
16 MR. BRICKMAN: Go ahead. I don't remember the
17 question either.
18 THE COURT: The Court reporter read will read it.
19 (Last question read back by the court reporter.)
20 A. Yes.
21 Q. (By Mr. Brickman) Based on your own research in
22 the field, in your discussions with patients, is it your
23 understanding that any of them know the FTC perimeters
24 as you have just described it in order to get what the
93
1 FTC is getting?
20 Q. Is this not based on your talking -- this
21 information you're about to give, this information,
22 these opinions you have, are based not only on your
23 talking to patients, but also on your general research?
24 A. Yes.
94
1 Q. Have you researched this extensively with regard
2 to dealing with smoking and health and nicotine and
3 addiction?
4 A. Well, this question came up a lot when I
5 published some of my earlier studies with low yield
6 cigarettes, the questions came up about what do people
7 really think about cigarettes, so there was research
8 done at that time. What was the other question?
9 Q. Based upon your understanding of people in this
10 country, based on your research, do you have any reason
11 to think the people in Illinois are any different in
12 their understanding than the rest of the nation?
22 Q. (By Mr. Brickman) Do you have reason to believe
23 that this information is applicable to the rest -- to
24 Illinois as well as to the rest of the country, and if
95
1 so, what do you base that on?
2 MR. LOMBARDI: The same objection.
3 THE COURT: Overruled.
4 A. Well, I am not aware of data that smoking
5 behavior or understanding about smoking risks is
6 different in any part of the country. I've not
7 specifically seen studies. Most research that I've
8 seen, all research I've seen on smoking behavior and
9 smoking is pretty comparable within the U.S.
10 MR. LOMBARDI: Based on that, I move to strike,
11 Your Honor.
12 THE COURT: Overruled.
13 Q. (By Mr. Brickman) Let's go back to where we were.
14 At least I hope I can find it. We were talking about
15 the understanding whether smokers have an understanding
16 of what the specific perimeters were of the FTC testing
17 method. You described how far down the cigarette
18 smoking, volume, how often. Do smokers know those
19 perimeters?
96
1 MR. BRICKMAN: Do you have an opinion sir?
2 A. Yes.
3 Q. Could you give us your opinion, please?
4 MR. LOMBARDI: I ask for the foundation before the
5 opinion is given.
6 THE COURT: Ask him what his opinion is based
7 upon.
8 Q. (By Mr. Brickman) Dr. Benowitz, what is your
9 opinion based on?
10 A. Well, again, when I published studies on low dose
11 cigarettes, there were questions asked to consumers
12 about their understanding of cigarettes and the FTC
13 method perimeters that I talked about are things that
14 are not part of smokers' understanding of what yields
15 are.
24 Q. (By Mr. Brickman) Dr. Benowitz, based upon your
97
1 own understanding and your research in the area of how
2 people smoke and how will regulate their smoking, even
3 if they knew the FTC perimeters, could they regulate
4 their smoking to comply specifically with it?
11 A. Smokers have very little perception of how to
12 smoke in terms of what size puff they are taking in, how
13 fast they are inhaling, the intervals between puffs.
14 They may know that they are inhaling more deeply or less
15 deeply, if that's a big change, but in quantitative
16 sense, no, smokers don't have a sense of their own
17 smoking behaviors.
18 Q. In opening statement counsel for the tobacco
19 company mentioned that these FTC numbers are similar in
20 nature to the EPA gas mileage averages you see on brand
21 new cars. Are they similar?
22 A. Absolutely not.
23 Q. How is that?
24 A. Well, if you compare a car that's rated for ten
98
1 miles per gallon and 30 miles per gallon, you may not
2 get exactly ten or 30, but you're going to get a much
3 better mileage with a 30 mile per gallon car than a 10
4 mile per gallon car.
5 If you smoke a cigarette that's got a nicotine
6 delivery of point five and one that's got a nicotine
7 delivery of one point five, your exposure would be
8 virtually the same. There will be no way to item --
9 there is very little predictive value, if any, in that
10 range, so even though EPA mileage is not perfect, at
11 least it gives you a general idea of where you can
12 expect to be. A smoking machine yields gives you
13 nothing.
14 Q. We will come back to that. Let me first get into
15 the area of compensation and compensatory smoking
16 behavior. Are you familiar with those terms?
17 A. Yes.
18 Q. Have you in fact researched in that area?
19 A. Yes.
20 Q. Have you published in that area?
21 A. Yes.
22 Q. And is this in fact one of your special areas of
23 expertise?
24 A. Yes.
99
1 Q. And in fact, in Monograph 13, which is in
2 evidence here in this Court, were you the author of a
3 chapter on compensatory smoking behavior?
4 A. Yes.
5 Q. What is compensation or compensatory smoking
6 behavior?
7 A. Well, there are two terms that I can talk about.
8 One is compensation, the other is titration, or desire
9 level of intake. Let me start with the second one
10 first.
11 Q. You're the doctor.
12 A. People, because of the use of nicotine to
13 modulate mood behavior and to avoid withdrawal symptoms,
14 people tend to find a level of nicotine intake that
15 works best for them, and they tend to take in the same
16 level from day-to-day, and about the same amount from
17 cigarettes. The tendency for a person to keep whatever
18 level of nicotine they like constant from day-to-day is
19 called titration, so the basic titrate their cigarettes,
20 or if they change brands, how they smoke cigarettes to
21 maintain that same level of impact.
22 Compensation refers to the behavior when a person
23 is switched from a higher yield cigarette to a lower
24 yield cigarette, how well do they titrate to a different
100
1 level of intake. If they maintain a perfect titration,
2 that's l00 percent compensation, so they've adjusted
3 their behavior to compensate for the lower machine
4 determined yield. If the yield drops to one half and
5 then drops by one half, then there is zero compensation.
6 So compensation refers to a person's response to
7 switching to a lower dose cigarette, and titration
8 refers to the phenomenon of just trying to maintain that
9 desired level.
10 Q. What does that have to do with, first of all,
11 take the area of compensation. Put aside the titration.
12 In and of itself, what does that have to do with
13 somebody who switches from a Marlboro regular to a
14 Marlboro Light cigarette?
15 A. If the person smokes the Marlboro light to effect
16 titrate, keep the same level of nicotine intake, they
17 will be compensating by inhaling the cigarette more
18 intensively or smoking more cigarette, or the
19 combination of the two.
20 Q. What are the mechanisms by which these smokers
21 compensate or adjust their nicotine level?
22 A. There are two main ways you can do it. One is by
23 smoking more intensely, and the other is by smoking more
24 cigarettes, and the biggest effect is more intensely. A
101
1 person can smoke more intensely by several ways. One is
2 they will take bigger puffs of the machine, smokers do.
3 And with lower yield cigarettes, you take bigger puffs
4 than with higher yield cigarettes. That's one. The
5 second thing is you take more puffs per cigarette. So
6 you have a shorter interval from puff to puff. So
7 smokers take many more puffs than the machine takes.
8 And you can get much more nicotine from cigarette smoke
9 by taking more puffs.
10 A third thing that they can do is to defeat the
11 ventilation systems. And there are two ways to do that.
12 With cigarettes that are highly ventilated with holes in
13 the filter tips, smokers can block those holes with
14 their fingers or their lips. More importantly, for
15 cigarettes like the the Marlboro Lights, is that when
16 you take a faster puff you undermine the ventilation,
17 the faster you puff the less effective the ventilation
18 system is. So taking a bigger or faster puff will
19 reduce ventilation.
20 These are behaviors that a smoker does
21 unconsciously. They figure out that if they smoke a
22 cigarette in a certain way, they get a better taste or a
23 better effect of the cigarette. And that's
24 compensation.
102
1 Q. Let me make sure I understand, when you say
2 unconsciously, these are not efforts, I mean, the smoker
3 is not saying to himself, I need to adjust this or that
4 perimeter so I can get more?
5 A. They just smoke it to what seems to provide the
6 taste and effect they desire.
7 Q. Does an individual smoker compensate by just one
8 of those mechanisms you've listed?
9 A. Often there are multiple mechanisms in play.
10 Q. Do you have an opinion to a reasonable degree of
11 medical or scientific certainty as to the percentage of
12 smokers who smoke in such a way to achieve their own
13 desired level of nicotine from smoking on either a daily
14 basis or on a per cigarette basis?
15 MR. LOMBARDI: Objection, foundation, Your Honor.
16 THE COURT: Overruled.
17 A. I think virtually all smokers do.
18 Q. (By Mr. Brickman) And when you will say virtually
19 all, does that apply to addicted smokers as well as to
20 those who may not be addicted?
21 A. Yes.
22 Q. Is that true no matter whether you smoke a
23 regular cigarette or a light cigarette?
24 A. Yes.
103
9 Q. (By Mr. Brickman) What is the significance of the
10 fact that you're going to do a smoker's --
11 THE COURT: Wait a minute. Did he answer the
12 question?
13 MR. BRICKMAN: I thought he did. We will ask it
14 again.
15 THE COURT: Read back the answer.
16 (The Court Reporter read back the answer.)
17 THE COURT: You may proceed.
18 Q. (By Mr. Brickman) What was the significance of
19 that fact as to whether -- does it matter if he smokes a
20 regular cigarette or a light cigarette?
21 MR. LOMBARDI: I object to the form.
22 MR. BRICKMAN: Obviously, my own witness doesn't
23 understand what I'm getting. I'll accept his objection.
24 THE COURT: There must be something to his
104
1 objection.
2 Q. (By Mr. Brickman) You mentioned the fact that
3 regardless of whether you smoke a regular cigarette or a
4 low tar cigarette, you're going to smoke to get to your
5 level, correct?
6 A. Yes.
7 Q. What impact does that have on whether you
8 switch -- whether you smoke one kind of cigarette or
9 another?
10 A. It means that your exposure to tobacco smoke and
11 various tobacco smoke toxins will be comparable and any
12 injurious health effects will be comparable.
13 Q. What does that mean with regard to the amount
14 specifically of tar and those toxins you referenced if a
15 person smokes a low tar cigarette versus a regular
16 cigarette?
17 A. They will be exposed to the same amount of tar
18 and the same amount of toxic gases and the same amount
19 of nicotine.
20 Q. No matter whether they are smoking that light
21 cigarette or a regular cigarette?
22 A. That's correct.
23 Q. Is that true for virtually all the smokers of
24 Marlboro lights and Cambridge Lights cigarettes based on
105
1 your own work in this field?
9 MR. BRICKMAN: Do you remember my question?
10 A. Yes. I believe that is true for smokers of
11 Marlboro and Marlboro Lights.
12 Q. (By Mr. Brickman) And Cambridge and Cambridge
13 Lights as well?
14 A. Yes.
15 Q. You mentioned earlier that you wrote a chapter in
16 Monograph 13, which is in evidence in this case, with
17 regard to compensation, correct?
18 A. Yes.
19 Q. With regard to your chapter in that book, did you
20 reach certain conclusions that you published?
21 A. Yes.
22 Q. And -- can we put up the chart from that page?
23 Is that the chapter you wrote?
24 A. Yes.
106
1 Q. And could we put up the conclusions from that
2 chapter, please? Could you blow those up, please? Are
3 those in fact conclusions you reached in your chapter or
4 Monograph 13 which is in evidence in this case?
5 A. They are.
6 Q. Can you go through those one at a time and tell
7 us how they impact light cigarettes that are the subject
8 matter of this case specifically, Marlboro Lights and
9 Cambridge Lights?
10 A. Yes. The first one is that smokers regulate
11 their intake of nicotine to obtain the amount of
12 nicotine that they need to sustain their addiction. The
13 implications of that are that if a person needs a
14 certain amount of nicotine, they will smoke the Marlboro
15 and Marlboro Lights to get the same amount.
16 Q. So I get the record clear, that would be true for
17 Cambridge Lights and the Cambridge regular also?
18 A. Yes.
19 Q. Let's go to number two, please.
20 A. Number two is spontaneous brand switching studies
21 suggest that there is no reduction in smoke intake per
22 cigarette, and that any reductions that are seen in
23 brand switchers depend upon whether or not those
24 individuals also reduce their cigarette consumption.
107
1 Q. First of all, what is spontaneous brand switching
2 studies, and have you done those?
3 A. I have done one study, yes.
4 Q. Are there others that you are familiar with?
5 A. There is one other. This is a study where you
6 look at individuals over time and try to identify people
7 who have changed their brand themselves and made some
8 measurement on them, optimally before they switch, and
9 after they switch, that's what we did in our study. Our
10 study used cotinine, which is a breakdown product of
11 nicotine that's present in the bloodstream for longer
12 periods of time and at high levels of nicotine, and it's
13 commonly used as a marker of how much nicotine a person
14 is taking in.
15 Q. In your studies you are measuring the nicotine
16 that actually gets into the bloodstream by way of
17 looking at one of the units it breaks down into?
18 A. Yes. I should say that all the studies in this
19 chapter that I reviewed were studies that used what are
20 called by biomarkers, and biomarkers are measurements of
21 levels of tobacco smoke constituents in the bloodstream
22 or urine or some other bodily fluid of a smoker so we
23 can tell how much a person was exposed to.
24 Q. Is that a better way of doing it than measuring
108
1 the amount of smoke that's getting into a smoker's mouth
2 or going through a cigarette?
3 A. Yes, because this tells you how much the person
4 was actually exposed to these chemicals, so there is no
5 approximation. You actually measure exposure. So in
6 doing that measuring this cotinine metabolite we found
7 that the cotinine level per cigarette smoke for people
8 who reduce their brand was the same with higher yield
9 brands than lower yield brands. So that per cigarette
10 they were taking in the same amount of nicotine and the
11 same amount of carbon monoxide, which is a marker for
12 gas exposure from low yield as each high yield
13 cigarette.
14 Q. Let's go to the next one please.
15 A. The next one says that studies of smokers smoking
16 self selected brand showed a weak relationship between
17 machine measured nicotine yield and a smoker's nicotine,
18 carbon monoxide or thiocyanate exposure.
19 Q. Let's break that down. What does the first part
20 mean about the self selected brand?
21 A. Well, these are what are called cross sectional
22 studies. So it's where you take -- you study a lot of
23 smokers, smoking whatever cigarette they happen to
24 choose, whatever way they choose it, and you get a blood
109
1 sample or a urine sample or saliva or whatever you're
2 going to measure as a marker of exposures, and then you
3 compare that exposure marker with the type of cigarette
4 or the machine yield of the cigarette that they are
5 smoking, and when you do that you find that there is
6 very little relationship between the machine predicted
7 yield and the actual exposure level, except in what are
8 called ultra low yield cigarettes, the very lowest one,
9 but for the vast majority of cigarettes, including the
10 Marlboro Lights and Marlboro range levels of cotinine,
11 carbon monoxide and thiocyanate are quite similar.
12 Q. Just so we are clear, when you wrote reference
13 machine measured nicotine yield, was that the FTC
14 measurements you're referring to?
15 A. Yes. I should also explain for the Court, since
16 I didn't before, thiocyanate is a breakdown product of
17 cyanide, and cyanide is one of the toxic constituents of
18 tobacco smoke, so we use that to assess cyanide
19 exposure.
20 Q. Let's pull up the fourth one please.
21 A. The fourth one is considering the over-all
22 exposure data for individuals selecting their own
23 brands, there is little reason to expect that smokers of
24 low yield cigarettes will have a lower risk of disease
110
1 than those who smoke higher yield cigarettes. And this
2 is just based on the simple premise that if we measure
3 toxins in the bodies of smokers, and if we say the
4 disease risk is related to their exposure to toxins, if
5 they have the same exposure to toxins, they'll have the
6 same disease, basically.
7 Q. When did you write -- when was this published?
8 A. This was published in 2001 -- I don't remember
9 the exact date.
10 Q. Do you still hold these opinions today?
11 A. Yes.
12 Q. And do you hold these opinions to a reasonable
13 degree of medical and scientific certainty?
14 A. Yes.
15 Q. Do those opinions that you've just given apply to
16 Marlboro Lights and Cambridge Lights?
17 A. Yes, they do.
18 MR. HEPLER: Objection to the form, objection to
19 foundation.
20 THE COURT: Overruled.
21 MR. TILLERY: Was there an answer noted on the
22 record?
23 COURT REPOTER: He said yes, they do.
24 Q. (By Mr. Brickman) Based upon your research in
111
1 this field, and your having written in the area, do you
2 have an opinion to a reasonable degree of medical and
3 scientific certainty as to whether these people who
4 switch from a regular cigarette to a cigarette like
5 Marlboro Lights or Cambridge Lights will compensate for
6 a long term?
7 A. Yes.
8 MR. LOMBARDI: Objection to the form and
9 foundation.
10 THE COURT: Overruled.
11 MR. BRICKMAN: Could you tell us what that opinion
12 is, please, sir?
13 A. They do, they will.
14 Q. Is that true as far as your research is
15 concerned -- strike that. Based on your research and
16 your studies, do you believe that the fact that it will
17 be long term when these people switch to the Marlboro
18 Lights or Cambridge Lights is applicable to virtually
19 all the smokers who have switched in the state of
20 Illinois who are the subject of this class?
4 A. Yes, I do.
5 Q. (By Mr. Brickman) What is that opinion?
6 A. That people in the state of Illinois who smoke
7 Marlboro Lights or switch from Marlboro to Marlboro
8 Lights would compensate, and that compensation would be
9 indefinite.
10 Q. Do you understand the concept of compensation of
11 being complete or full?
12 A. Yes.
13 Q. What does that mean?
14 A. Well, if you switch from a higher yield cigarette
15 to a lower yield cigarette, and you maintain exactly the
16 same intake of toxins, then that is complete, or full
17 compensation.
18 If there is a little bit of a reduction but much
19 less of a reduction than would be the case if the
20 machine numbers were true, then that's called partial
21 compensation.
22 Q. Bear with me a second. I may have left something
23 out of my previous question. If I asked you only about
24 Marlboro Lights smokers in this state or in this class
113
1 having long term compensatory smoking behavior, would
2 that also be true for Cambridge Lights smokers as well?
3 A. Yes.
4 Q. Let's go back to what we why just talking about.
5 You were talking about a full or complete compensation.
6 With regard to the product in this case, Marlboro
7 Lights, Cambridge Lights, do you have an opinion as to
8 whether people who switch to those cigarettes will
9 engage in complete or full compensation?
10 MR. LOMBARDI: Objection, foundation.
11 THE COURT: Overruled.
12 A. Yes, I believe they would.
13 MR. BRICKMAN: They will?
14 A. They will.
15 Q. And again, based on your research in this area,
16 is that true, do you have that opinion to a reasonable
17 degree of medical and scientific certainty for virtually
18 all of the smokers of the Marlboro Lights and Cambridge
19 Lights in this class in this case?
20 MR. LOMBARDI: Objection, foundation.
21 THE COURT: Overruled.
22 A. Yes.
23 Q. (By Mr. Brickman) In coming to those conclusions,
24 have you looked at a number of different studies?
114
1 A. Yes.
2 Q. Have you done a number of studies yourself in
3 this area?
4 A. Yes.
5 Q. What are the basic -- you mentioned one type of
6 study earlier, two types of studies, I think you
7 mentioned the cross sectional and what was the other,
8 spontaneous brand switching?
9 A. Yes.
10 Q. You've looked at those kind of studies to make
11 this determination and give the opinions you've given
12 today?
13 A. Yes.
14 Q. Are there any other studies or general types of
15 studies you've looked at for these opinions?
16 A. The other kind of study is what's called forced
17 brand switching studies, where people are as part of an
18 experiment are required to switch to from one cigarette
19 to another.
20 Q. What I would like to do, and I would like to do
21 just briefly, is go through the three w/THAOE basic
22 types of studies and tell us what are the advantages of
23 each type of study and what are the disadvantages, what
24 you can find out, what you can't find out from each kind
115
1 of study.
2 A. Okay.
3 Q. Pick one.
4 A. If we start with the forced brand switching
5 studies, those studies are ones where the advantage of
6 those is that they are often done with intensive
7 monitoring of behavior with studying puff volumes or
8 smoking behaviors or other biological markers, and you
9 can see what happens when a person switches over time.
10 The down side of it is that people are switched to
11 cigarettes not of their choice, and maybe cigarettes
12 they don't like. Some of the studies are done in a very
13 short period of time, so there might not be time for the
14 smoker to learn to smoke the cigarettes in the way they
15 would ultimately smoke it. And many of the studies are
16 done in artificial situations, such as in clinics or
17 research wards. These studies have been most useful in
18 trying to understanding mechanisms of compensation, but
19 do not represent real life, because again, people are
20 being forced to switch for the purpose of the
21 experiment.
22 The second category are the self selected brands,
23 also known as cross sectional studies. These studies
24 are very naturalistic. They take people who are smoking
116
1 whatever cigarette they want, in whatever numbers they
2 want, and it samples their exposure. So this represents
3 how people smoke their cigarettes.
4 Another positive thing in that sort of study is
5 that large numbers of smokers has been studied,
6 thousands, which is much more than any other designed
7 study. One negative, too, it that most of these studies
8 have not identified who is a brand switcher or not, so
9 you don't know if a person has switched to a brand or
10 started with that brand.
11 The third study is a spontaneous brand switching.
12 That study is useful for looking specifically at
13 switching. Those studies have been hard to do. Very
14 few have been published with relatively small numbers,
15 but that gives you useful information about switching
16 from one brand to the next.
17 Q. You have researched these various studies,
18 various types of studies and how they have tested the
19 theories of compensation and the degrees of compensation
20 and the length of compensation, is that correct?
21 A. Yes. I actually performed all of these studies,
22 and I've also reviewed all of the publications I could
23 find on those types of studies.
24 Q. When taken as a whole, do they comport with your
117
1 understanding and the testimony you've given here today
2 about the length of the compensation and the
3 completeness of the compensation?
4 A. Yes.
5 Q. Do all of the studies show that, though?
6 A. Which --
7 Q. Let's look at some of the forced experimental
8 studies.
9 A. Show what?
10 Q. Good question. Do they show a hundred percent
11 compensation, all of them, or do all of them show long
12 term compensation?
13 A. Well, the forced switch studies, if you look at
14 the over-all picture, show about 80 percent
15 compensation. So far as I can tell, those studies, the
16 longest one is really the one by Frost shows that
17 compensation persists for at least six months, and I
18 have no reason to think that it would change after that.
19 So that's those studies.
20 The cross sectional studies indicate compensation
21 is virtually complete in the range of cigarettes that
22 are relevant to Marlboro and Marlboro Lights. Like I
23 said before, there is a reduction of exposure when you
24 get to the ultra low yield cigarettes, the very low
118
1 yield cigarettes. The spontaneous brand switching
2 studies, there are very few of those, and the one we did
3 showed that on a per cigarette basis people took in the
4 same amount from lower yield as higher yield cigarettes.
5 And the second study showed that people who switched
6 from higher to lower yield cigarettes were taking in the
7 same amount of nicotine as people who hadn't switched,
8 so the two spontaneous switching studies suggest that
9 there is a pretty good compensation per cigarette.
10 Q. You've given the opinion here today about
11 compensation being full and complete and long term, and
12 what I'd like to do now is show you a little clip, we
13 don't have a good copy, we couldn't get the CD from the
14 tobacco company, but we got what they showed the judge
15 in the opening statement, and they gave some attribution
16 of a statement to you. If we could put that up on the
17 screen. No. We are at CKC900117. Can we blow up
18 number one please? Can you read that to the extent that
19 compensation occurs, it is partial and temporary, and in
20 that middle line there is somebody by the name of
21 Benowitz in there. Can you see that?
22 A. Yes.
23 Q. Do you hold that opinion?
24 A. No, I do not.
119
1 Q. Does that article state that opinion?
2 A. That article was discussing a proposal for
3 regulation of cigarettes in a novel way. We actually
4 reduced the nicotine content of the tobacco, which is
5 not what is the case for commercial cigarettes today.
6 The concern with that approach was that people to
7 try to get their nicotine would what's called
8 overcompensate, which means take in more smoke than they
9 had originally and exposed themselves to greater levels
10 of toxins, carbon monoxide and tar, and might increase
11 their risk of disease, trying to get enough nicotine.
12 The statement in that article was that we looked
13 at studies for overcompensation, was there evidence when
14 you switched people to real low cigarettes they took in
15 more smoke than they had before.
16 Q. Did you use the word "compensation" or
17 "overcompensation"?
18 A. I used overcompensation, because we were looking
19 for people who were exposing ing themselves to even more
20 smoke than they had before, and we said there is no
21 evidence of overcompensation.
22 Q. You're sure, you didn't tell them you weren't
23 talking about compensating?
24 A. No. The words are overcompensation.
120
1 Q. Have you explained it to these boys previously?
2 A. Yes. This has come up in other trial testimony.
3 MR. LOMBARDI: Objection, Your Honor, it's hearsay
4 as to what came up in other trials. Objection.
5 THE COURT: I'll sustain that. I sustained your
6 objection before. The Court is wit interested in
7 hearing the testimony relative to this particular,
8 without going into the other graphs.
9 Q. (By Mr. Brickman) In any event, bottom line, from
10 Marlboro Light, Cambridge Light, the smokers in this
11 state, does that statement apply that's on the board the
12 screen right now?
13 A. It does not.
14 Q. There is another statement I think on that same
15 page. Can we go to that please? Number two. Not
16 number two. Yes it is. I apologize. Number two, hold
17 that up please. What does that mean, that statement?
18 A. This means if you can reduce someone's exposure
19 to tar, even a small amount, that could have a
20 beneficial effect on a population.
21 Q. Would smoking Marlboro Lights or Cambridge Lights
22 reduce the intake of tar to smokers?
23 MR. LOMBARDI: Objection to foundation.
24 THE COURT: Overruled.
121
1 A. No. That's the problem. Like I said before,
2 there are some low yield cigarettes that I believe do
3 this. If you get the ultra low yield brands you
4 actually can reduce tar, and in the past I've suggested
5 that cigarette yields be compulsorily reduced perhaps to
6 the lower levels where people's tar exposure is less,
7 but in the range of cigarettes, covered by Marlboro and
8 Marlboro Lights, I don't believe there is any reduction
9 of tar exposure.
10 MR. LOMBARDI: Move to strike on foundation
11 ground, Your Honor.
12 THE COURT: Overruled.
13 Q. (By Mr. Brickman) Just briefly, you've mentioned
14 about ultra low tar cigarettes. How are those different
15 than the cigarettes that are in this case, the Marlboro
16 Lights and the Cambridge Lights?
3 A. Well, first of all, the yields of the cigarettes
4 that I've studied that really reduce exposure are in the
5 nicotine range of point one to point two milligrams, and
6 the tar range of one to two milligrams. It's much lower
7 than the Marlboro and Marlboro Lights, which are more
8 like point eight to one point one milligram nicotine and
9 ten per 16 milligrams tar. These very low yield
10 cigarettes are very highly ventilated, some 90 percent,
11 but the smoker just can't defeat the ventilation no
12 matter how hard they try.
13 Q. Have you studied and written on the difference
14 between the ultra low and the low tar cigarettes in so
15 far as looking at the biomarkers in the body?
16 A. Yes, I have.
17 Q. And did you publish information on that in
18 Monograph 7?
19 A. Yes.
20 Q. And do you have a chart in that Monograph that
21 sort of explains the difference in the biomarkers, as
22 they show up in a person?
23 A. Yes.
24 Q. Could I see CKT015701 and then 5701 P, please?
123
1 MR. BRICKMAN: That's not it. That's the same
2 number. I've got the wrong number. Let me do it a
3 little differently. We will put it up on the easel. I
4 beg the Court's indulgence for a moment. I'm told we
5 have the wrong number. That is what we were trying to
6 bring up.
7 A. Yes.
8 Q. Is that published in here?
9 A. Yes.
10 MR. LOMBARDI: I didn't hear --
11 MR. BRICKMAN: Monograph 7 now.
12 Q. Let me ask you. With the Court's permission, may
13 he stand down?
14 THE COURT: Sure.
15 MR. BRICKMAN: But I've got this thing, I brought
16 it all the way from Charleston, I want to get some use
17 out of it, Judge. Look at that.
18 THE COURT: We have got one here.
19 MR. BRICKMAN: Now you tell me.
20 Q. What do those charts show?
21 A. This chart shows data from a cross sectional
22 study that we did looking at 248 smokers smoking their
23 own chosen brand of cigarettes. We looked at cigarettes
24 per day and different biomarkers. This is carbon
124
1 monoxide level. Thiocyanate. Cyanide markers. Blood
2 nicotine level, and blood cotinine. And we looked at
3 these smokers according to their machine determined
4 nicotine yield range, so we look at people who are
5 smoking greater than one milligram, which would be like
6 the Marlboro, point six to point nine, Marlboro Lights,
7 point two to point five nine, which is a lower yield,
8 and then less than point two, which is the ultra low.
9 And his shows the number of people in each category.
10 And what we found is that if you look at the carbon
11 monoxide levels, thiocyanate levels, nicotine levels or
12 cotinine levels, there was no significant difference for
13 any of the cigarettes from a nicotine yield of point two
14 up to greater than one. So the same exposure from all
15 the cigarettes, including the cigarettes that are like
16 Marlboro and Marlboro Lights. We did find about a 30
17 percent reduction in the ultra lows. We saw that in
18 everything. We saw it in nicotine, we saw it in
19 thiocyanate, we didn't see it for carbon monoxide, and
20 this was even though people smoked more cigarettes of
21 the ultra light to try to compensate. So this is the
22 basis for some of the recommendations that I've made,
23 that if we could drive yields low enough, we maybe could
24 reduce exposures. But as I said before, there is no
125
1 difference in the exposures when you look at the popular
2 light category and full flavor category.
3 Q. You have not recommended at any point in time
4 cigarettes such as Marlboro Lights or Cambridge Lights
5 in the category they are in, have you?
6 A. That's correct.
7 Q. I've got a pack of Marlboro Lights cigarettes in
8 my hand. Have you seen those previously?
9 A. Yes.
10 Q. It says on here lower tar and nicotine. Are they
11 in fact to a smoker lower in tar and nicotine?
12 MR. LOMBARDI: I object to the form, foundation.
13 THE COURT: Are you preparing or --
14 MR. BRICKMAN: I'll elaborate on it.
15 Q. With regard to Marlboro Lights, smokers who smoke
16 Marlboro Lights versus any other cigarette, for that
17 smoker, are they going to be lower in tar and nicotine?
18 MR. LOMBARDI: The same objection, Your Honor.
19 THE COURT: Overruled.
20 A. Certainly in comparison to the vast majority of
21 commercial cigarettes, the answer is no. It is possible
22 someone could have some cigarette that's unfiltered and
23 is from a third world country and have a bigger
24 exposure, but more most commercial cigarettes in the
126
1 U.S., the answer is no.
2 Q. (By Mr. Brickman) With regard to Marlboro regular
3 and Marlboro Lights, are they?
4 MR. LOMBARDI: Objection, form and foundation.
5 THE COURT: Overruled.
6 MR. BRICKMAN: Are they lower in tar and nicotine,
7 the Marlboro Lights than the Marlboro regular?
8 MR. LOMBARDI: The same objection.
9 THE COURT: Overruled.
10 A. No, they are not.
11 Q. When I asked that question, I'm referring
12 specifically to somebody smoking them as opposed to just
13 look at them unsmoked?
14 A. Well, as opposed to the machine testing, yes.
15 Q. What I said was correct?
16 A. Yes.
17 Q. Based on your work in this field, is there any
18 reason to believe these Marlboro Lights are any safer
19 than Marlboro regulars?
2 A. Again, because there is no difference in exposure
3 to the toxins that have been measured, I do not believe
4 it will be any safer.
5 Q. (By Mr. Brickman) Is that also true for the
6 Cambridge Lights?
7 A. Yes.
8 Q. There is already in evidence a Philip Morris
9 internal study done on September 17th, 1975 by the now
10 infamous Barbara Goodman, and it is exhibit 17-K and
11 19-A?
5 Q. (By Mr. Brickman) Is that in fact the report?
6 A. Yes.
7 Q. Have you seen this previously?
8 A. Yes.
9 Q. And that is dated September 17th, 1975?
10 A. Yes.
11 Q. Could you turn to the conclusion page, please?
12 Are you familiar with the conclusion that was drawn in
13 this case?
14 A. Yes.
15 Q. In this study, rather, excuse me.
16 A. Yes.
17 Q. Could you read that into the record, please?
18 A. In effect, the Marlboro 85 smokers in this study
19 did not achieve any reduction in smoke intake by smoking
20 a cigarette, Marlboro Lights, normally considered lower
21 in delivery.
22 Q. Does that statement comport with the testimony
23 you've given here today?
24 A. Yes.
129
1 Q. Have you looked at this study further to
2 determine whether the smokers who regularly smoked the
3 Marlboro regular cigarettes, the Marlboro Red or
4 whatever they referred to it as, what happened when they
5 switched to a Marlboro Lights cigarette?
6 A. Yes.
7 Q. And what happened in this study?
8 MR. LOMBARDI: I object to the form.
9 THE COURT: Which is it are you talking about?
10 MR. BRICKMAN: The one we have got on the screen.
11 THE COURT: Overruled.
12 A. Well, in this study, using the smoking stimulator
13 technique, there was no difference in tar exposure or
14 nicotine exposure than switching from Marlboro Reds to
15 Marlboro Lights.
16 Q. This study has flaws in it, doesn't it?
17 A. Yes.
18 Q. What are just the basic flaws in the study that
19 was done 28 years ago, 27 and-a-half years ago?
20 A. Well, one problem is just relating to the
21 stimulator studies in general.
22 Q. What do you mean by stipulator studies?
23 A. Well, the way these studies work is a person
24 smokes a cigarette through a cigarette holder, and it's
130
1 hooked up to equipment that can measure the size of a
2 puff taken, how fast the puff is taken, how many puffs
3 are taken, and then those characteristics of the smoker
4 are then used to program a smoking machine, like I
5 showed you before, but instead of using the FTC
6 perimeters, they try to match it up to the perimeters by
7 the smoker, so the smoker's puff volume was, say, 50
8 cc's instead of 35, they used 50. If a smoker took a
9 puff every 40 seconds, that wold be used instead of
10 every 60 seconds, et cetera. Then they measure tar and
11 nicotine and carbon monoxide the same way, and in this
12 study they, well, that kind of analysis is informative,
13 but it doesn't really match how people smoke, because of
14 the use of the holder. People don't smoke cigarettes
15 naturally, they smoke through the holders. So it gives
16 you an idea of what may be going on, but it's not really
17 naturalistic.
18 Q. Were there any other flaws in this study?
19 A. Well, it's a small study, so it doesn't involve
20 development subjects. That's a problem especially if
21 you try to use this, say, as a self selected brand
22 study, with only nine subjects.
23 The other thing is there is a data analysis
24 approach here, which I think is problematic, which is
131
1 seen with many of these studies, and that is instead of
2 doing a stimulation for each individual smoker, which
3 would tell you how each smoker's machine yield would go,
4 they combined the puffing perimeters of all smokers and
5 made a single tape and make a single simulator run. And
6 the problem with that is that when you average the puff
7 volume and intervals and what not, you miss the
8 interactions that occur for a given smoker. For
9 example, if a smoker takes a faster puff and a bigger
10 puff, that's got different effects on ventilation than
11 if they take a bigger and slower puff. So the only way
12 to really know for sure would be a to stipulate each
13 smoker's behavior.
14 What they did was average all the puff volumes,
15 all the puff intervals, and the number of puffs, and
16 made a single composite simulation for the whole group,
17 and that's a problem.
18 Q. Can you still learn any lesson from the study,
19 even with these deficiencies?
20 A. Well, you don't have the definitive answer, but
21 certainly, if you find that when you're looking at
22 cigarettes, if you think are supposed to be different by
23 machine testing, you find that the exposures are the
24 same, that's the signal of concern. What one should do
132
1 is it do further studies to know if this is true or not.
2 Q. Let's switch gears a little and take this off the
3 screen now. When did you write your first article on
4 compensation, nicotine, and the concept of titration?
5 A. 1983.
6 Q. And what did you generally say in that article in
7 1983?
8 A. The main line was that smokers of low yield
9 cigarettes do not take in less nicotine and also less
10 applied less tar.
11 Q. Based on your study at that point in time,
12 everybody public head in medicine knew about this then?
13 A. Well, not everybody. Like all research, when you
14 do a study, especially something -- this was the first
15 study done in the U.S., there was one study done a
16 couple years earlier in the UK, but scientists begin to
17 see it, began to think about it, but it did in fact have
18 a number of replications, including my own over the
19 years, to confirm it was correct. I would say it
20 provided pretty compelling evidence to me and other
21 scientists, I think, in the field saw results of pretty
22 small field in terms of smoking research experts back
23 then.
24 Q. Did you get some publicity from this study when
133
1 it first came out?
2 A. I did. It was published in the New England
3 Journal of Medicine, which is a prominent journal, and
4 it got a lot of newspaper press. It got some t.v.press.
5 Q. Did you get to appear on t.v.?
6 A. Yes.
7 Q. Once you did that little media blitz, so to
8 speak, was it then accepted by public health as the
9 gospel?
10 MR. LOMBARDI: I object to the form. Lack of
11 foundation.
12 THE COURT: Overruled.
13 A. Well, it was certainly considered by public
14 health an important study and raised the question about
15 whether low yield cigarettes were if fact any safer. I
16 think there was still some opinion by public health that
17 low yield cigarettes might be safer based on some
18 epidemiology type studies, although those studies, as it
19 turned out, primarily comparing nonfiltered to filtered
20 cigarettes rather than within filtered cigarettes, which
21 my study mostly included.
22 Q. To your knowledge, rather, did Philip Morris take
23 any steps to change -- strike that. Did you write some
24 other articles thereafter?
134
1 A. Yes. I've written a number of articles. I
2 published several papers in 1985 and '86, and then
3 subsequently others as well.
4 Q. On the same general topic?
5 A. Yes.
6 Q. I don't understand. Why did you have to write
7 Monograph in 2001 to talk about the same thing?
8 A. The issues were whether one can extrapolate from
9 the studies that we had done looking at American
10 cigarettes to exposure to cigarettes and disease risks
11 over time in the U.S. and around the world. As I said
12 before, there had been some studies suggesting that
13 lower yield cigarettes might reduce the risk of some
14 diseases, like lung cancer, compared to higher yield
15 cigarettes.
16 As I also mentioned, those data primarily come
17 from comparisons of non filtered and filtered
18 cigarettes, rather than comparison of cigarettes within
19 the range that I studied. There is no evidence
20 whatsoever to suggest that Marlboro Lights, for example,
21 or cigarettes of that range would be less hazardous than
22 a Marlboro, but if you look at a non filtered cigarette,
23 and non filtered cigarettes had tar yields not of ten
24 milligrams, but 35 milligrams, and a nicotine yield not
135
1 of one milligram but of 2.5 milligrams, so they were
2 hugely different. So it was my opinion at that time and
3 others that there was some benefit from switching from
4 the very high yield cigarettes to the more moderate
5 cigarettes. And part of my Monograph 13 was to take a
6 look over time and say what does the evidence show about
7 disease, and Monograph 13 concluded even considering the
8 switch from non filtered to filtered, there was not very
9 good evidence that disease risks has -- but there was
10 never really a question about the range of cigarettes I
11 was studying in the U.S.
12 Q. Does Monograph 13 now represent the consensus of
13 the public health community on low tar cigarettes, in
14 your opinion.
15 A. Yes.
16 MR. BRICKMAN: I ask for the Court's indulgence
17 for a moment. Your Honor, would this be a good time to
18 break? I'm nearly done, and I think I can wrap up very
19 shortly thereafter, if we could break at this time.
20 THE COURT: I'd like to go to a quarter of.
21 MR. BRICKMAN: That's fine. We will keep going
22 then.
23 Q. Have there been throughout the time and up until
24 the time of Monograph 13 statements by various public
136
1 health officials, even the Surgeon General, that if you
2 don't quit smoking that you should smoke lower tar
3 cigarettes?
4 A. Yes.
5 Q. And was that good advice?
6 A. It was thought to be good advice at the time.
7 Again, that was mostly driven by the data on what used
8 to be high tar, which was mostly non filtered cigarettes
9 versus low tar, which is the filtered cigarettes, and I
10 should say, so the Court understands the definition of
11 high tar and low tar, have changed over the years as
12 cigarettes yields have dropped, so the old current high
13 tar cigarettes used to be low tar compared to the non
14 filtered cigarettes, but based on the older data, I and
15 other public health people felt that there was a benefit
16 in reducing the yields of cigarettes.
17 Q. Did the Surgeon Generals or other public health
18 officials recommend that if you're going to switch to
19 these low tar cigarettes, don't change the way you
20 smoke?
21 A. Yes.
22 Q. Can a smoker take heed to that?
23 A. Not really.
24 Q. Why is that?
137
7 THE COURT: Overruled.
8 A. The biggest way people compensate is by changing
9 their pattern of puffing on the cigarette mand most
10 smokers are just not conscious of how deep a puff they
11 are taking or the interval between puffs or the velocity
12 of their puffs, and it's very difficult for them to
13 control it and to keep their puffing behavior the same.
14 They puff in response to the smoke. So they get a
15 certain sensation from the smoke, and that guides their
16 smoking behaviors, and they have very little control
17 over that. A smoker responds to what they are getting
18 from a cigarette.
19 MR. BRICKMAN: Your Honor, that's all we have.
20 THE COURT: Okay. You may cross-examine.
138
1 THE COURT: Certainly.
2 CROSS EXAMINATION
3 BY MR. LOMBARDI:
4 Q. Hi, Dr. Benowitz. We met once. Do you remember?
5 A. Yes.
6 Q. My name is George Lombardi, and we met during a
7 deposition in this case. Do you recall that?
8 A. Yes.
9 Q. I want to talk to you for a minute. I think you
10 made some comments -- and correct me if I'm wrong -- to
11 the effect that smokers could get the amount of nicotine
12 they want from cigarettes, is that right?
13 A. Yes.
14 Q. And compensation and the extent of compensation
15 deals with how much of that nicotine they actually do
16 get, is that right?
17 A. Yes.
18 Q. And compensation you have said is a term that
19 relates to switchers, is that right?
20 A. Yes.
21 Q. And by that I mean somebody who switches, say, in
22 this case, from Marlboro Reds to Marlboro Lights, there
23 would be a question about whether that person
24 compensates, is that right?
139
1 A. Yes.
2 Q. And whether that person smokes Marlboro Lights to
3 get the same amount of nicotine as you would get from a
4 Marlboro Red, is that right?
5 A. Yes.
6 Q. Now, with respect to this class in this case, you
7 don't know how many people in this class or in this case
8 are switchers, is that right?
9 A. That's correct.
10 Q. You don't know what brand any of the class
11 members started smoking, is that right?
12 A. That's correct.
13 Q. You don't know what brand they may have switched
14 to before switching to Marlboro Lights, is that right?
15 A. That's correct.
16 Q. You don't know whether they even switched in the
17 first place, is that right?
18 A. Well, I know from general information that most
19 did, but I don't know specifically of this class, it's
20 just that most people do not start with light
21 cigarettes. Most people start with full flavor
22 cigarettes, and most light smokers are switchers.
23 Q. Do know down whether there were members of this
24 class who did start with Marlboro Lights?
140
1 A. I don't specifically know.
2 Q. Do you know, for instance, the class
3 representatives in this case, do you know what brand
4 Susan Miles started with?
5 A. I do not.
6 Q. Do you know how she came to smoke either Marlboro
7 Lights or Cambridge Lights?
8 A. No.
9 Q. How about Susan McHat -- or excuse me, I think
10 it might be Linda McHat, I might have it wrong, Ms.
11 McHat, do you know what brand she started smoking?
12 A. I do not.
13 Q. Do you know what she switched to along the way?
14 A. No.
15 Q. Do you know if she is smoking today?
16 A. No.
17 Q. How about Miss Price, do you know what brand she
18 started with?
19 A. No.
20 Q. Do you know what brand she switched to, if she
21 switched at all?
22 A. No.
23 Q. How about Mr. Prueth, do you know what brand he
24 started with?
141
1 A. I don't.
2 Q. Do you know what brand he switched to?
3 A. No.
4 Q. You done no investigation of the individual class
5 representatives in this case, is that right, Dr.
6 Benowitz?
7 A. That is correct.
8 Q. And you've done no investigation of any
9 individual members of this class, is that correct?
10 A. That is correct.
11 Q. Now, I think you made reference to compensation
12 and the extent of compensation, so I'm going to write
13 compensation up here, and I'm going to try and get a
14 thicker pen over lunch. I don't know if you'll be able
15 to see that. Can you see that?
16 A. Yes, I can.
17 Q. So you made reference to the extent of
18 compensation, correct?
19 A. Yes.
20 Q. And the extent of compensation effects the amount
21 of tar that a smoker gets, is that correct?
22 A. Yes.
23 Q. So I think you said if there is a hundred percent
24 compensation, when talking about compensation we are
142
1 talking about switchers, right, Dr. Benowitz?
2 A. Yes.
3 Q. People -- somebody who switched from Marlboro
4 regulars to Marlboro Lights, just for an example to give
5 us a structure, is that okay?
6 A. Yes.
7 Q. So if somebody compensated l00 percent when they
8 moved to Marlboro Lights, then they would get an equal
9 amount of tar to what they got with the Marlboro
10 regulars, is that right?
11 A. That's correct.
12 Q. I'll write equal there. If somebody compensated
13 50 percent when they switched down to Marlboro Lights,
14 they would get less tar from the Marlboro Lights, is
15 that correct?
16 A. Yes.
17 Q. And if somebody compensated zero percent or not
18 at all, they would also get less tar, is that correct?
19 A. Yes.
20 Q. So the extent of compensation for any individual
21 will determine how much tar they actually get from the
22 Marlboro Lights cigarette in my example, is that right?
23 A. Yes.
24 Q. And let's talk about the class representatives.
143
1 You didn't do anything to determine how much of any of
2 the class representatives, those individuals,
3 compensated in this case, did you?
10 A. I did no study on individuals in this class.
11 Q. So you don't know if any of the class
12 representatives compensated l00 percent when they
13 switched to the low tar cigarettes that's at issue in
14 this case, is that right?
15 A. For the individuals I did not.
16 Q. I'm going to put do not know.
3 A. That's correct.
4 Q. And you don't know their smoking histories?
5 A. That's correct.
6 Q. You don't know how they smoke?
7 A. That's correct.
8 Q. So you don't know if any of the class members
9 compensate l00 percent, is that right? Let me limit
10 that to the class representatives first. The class
11 representatives, you don't know if any of them
12 compensate l00 percent?
13 A. Not for specifics. I can talk about what would
14 happen for the population of smokers smoking the
15 cigarettes, but I don't know anything about the
16 individuals.
17 Q. Would you agree that you do not know if any of
18 the individual class representatives compensate l00
19 percent?
20 A. I don't have any information about the
21 individuals.
22 Q. Would you agree that you do not know whether any
23 of the class representatives, class representatives
24 compensate 50 percent?
145
1 A. I don't have any information about them specific.
2 Q. I'm putting do not know up there as well, okay?
3 And you do not know if any of these individual class
4 representatives don't compensate at all, is that
5 correct?
6 A. Again, I would doubt the 50 percent or zero
7 percent based upon what I know of the general population
8 of smokers, but I don't know the specifics of any of
9 these individuals.
10 Q. You understand I'm talking about individuals
11 here?
12 A. I do not -- I do not know information about the
13 individuals.
14 MR. LOMBARDI: I'll put do not know up in the last
15 spot, okay? And the fact is, Dr. Benowitz, on an
16 individual basis for any individual compensation
17 variables in its extent from individual to individual,
18 isn't that a fact?
19 A. Well, it does, but it can even -- average the
20 compensation is complete, and in so far as some people
21 take in less and some people take in more, but there is
22 variability from person to person.
23 Q. That's my question. I'm not talking about
24 averages. I'm talking about individuals. You don't
146
1 know -- it is possible, it's possible that of these five
2 class representatives some of them don't compensate at
3 all, isn't that possible?
4 A. It's not likely, but it's possible.
5 Q. It's possible. You would have to examine them to
6 know what their level of compensation was, wouldn't you?
7 A. Yes.
8 Q. And it's possible that some of those class
9 representatives compensate, but they don't compensate
10 fully, that's possible, isn't it?
20 A. Yes, it is possible, not likely, but possible.
21 Q. And you have ways, I mean, you have studied
22 compensation for I think you said decades, is that right
23 Dr. Benowitz?
24 A. Yes.
147
1 Q. And you have ways of doing tests on people to
2 determine the way they compensate or don't compensate,
3 is that right?
4 A. Yes.
5 Q. And you mentioned one of those ways is this blood
6 cotinine test, correct?
7 A. Yes.
8 Q. And that's one where you take blood from somebody
9 and you determine their level of cotinine in their blood
10 and you draw a conclusion about compensation from that,
11 is that right?
12 A. Yes.
13 Q. Is that the best way to determine whether
14 somebody compensated or not, an individual?
15 A. Yes.
16 Q. That's the way you use in your tests and your
17 studies, is that right?
18 A. Yes.
19 Q. And that's the only kind of study you cite in the
20 Monograph, is that right?
21 A. Well, we looked at other biomarkers as well, but
22 biomarker based studies, yes.
23 Q. Fair enough. And I went a little too far when
24 you talked about thiocyanate, you referenced Monograph
148
1 13 as well?
2 A. And carbon monoxide.
3 Q. But the main one, the one that you put up above
4 everything else is cotinine studies, is that right?
5 A. Yes. They are all consistent, the three
6 biomarkers are pretty consistent from one study to the
7 next. But cotinine is the one that I used mostly, and
8 most other people have as well.
9 Q. And cotinine studies are studies that you perform
10 on individuals, is that right?
11 A. Yes.
12 Q. And you derive data from cotinine studies, is
13 that right?
14 A. Yes.
15 Q. And from all the biomarkers studies you perform
16 on individuals, is that right?
17 A. Yes.
18 Q. And then you draw conclusions from those, is that
19 right?
20 A. Yes.
21 Q. Did you do any biomarker studies of any of the
22 class representatives in this case?
23 A. I did not.
24 Q. Did you do any biomarker studies on any members
149
1 of the class as a whole in this case?
2 A. I did not.
3 Q. Dr. Benowitz, did you give some testimony, as I
4 recall, about the duration of compensation, do you
5 recall that?
6 A. Yes.
7 Q. By duration of compensation, just in a general
8 sense, what we are referring to is if you have somebody
9 who actually does compensate, how long does that
10 behavior last, is that right?
11 A. Yes.
12 Q. So if you have somebody who say switches from
13 Marlboro regular to Marlboro Lights, and they do
14 compensate, say they compensate 100 percent, the
15 question when you're talking about duration is whether
16 that last permanently, or however long they smoked, or
17 for some shorter period of time, is that right?
18 A. Yes.
19 Q. And the fact is, doctor, that there is not data
20 available to address the question of duration, because
21 there are no studies that have looked at that question,
22 isn't that right?
23 A. Well, the best we have is six months for forced
24 brand switching studies, and for six months it looks
150
1 like compensation, that's the best we have, six.
2 Q. Isn't it a fact that the data are not available
3 to address the questions of duration, because there are
4 no studies that have looked at that question?
5 MR. BRICKMAN: I object to the form of the
6 question. It mischaracterizes what he just stated.
7 THE COURT: Rephrase your question. It presumes.
8 Q. (By Mr. Lombardi) My question to you, doctor, is
9 it isn't it a fact that there are no studies that have
10 looked at the question of duration?
11 A. The one study that's looked at the longest
12 directly looked at six months. There are indirect
13 evidence that compensation persists in cross sectional
14 studies.
15 Q. Miles deposition, page 48, line 13.
21 A. Yes.
22 Q. And this is your deposition of the Miles case.
23 Do you recall that?
24 A. Yes.
151
1 Q. And you're asked questions under oath, is that
2 right?
3 A. Yes.
4 Q. And did I ask you this question. Let me ask you,
5 is it fair to say, Dr. Benowitz, that your chapter in
6 the Monograph did not set out to determine the duration
7 of compensation. That wasn't your goal with that
8 chapter. And you answered, I don't think data are
9 available to address the question of duration, because
10 there are no studies that have looked at that question.
11 When you have someone switch, the best we have are the
12 cross sectional studies where presumably these are
13 levels that are stable. People have been smoking these
14 for some period of time.
15 Did you give that answer to that question under
16 oath at the deposition?
7 Q. (By Mr. Lombardi) On duration, Dr. Benzowitz,
8 you would agree that the duration of compensation is
9 something important to determine if you're trying to
10 determine an individual's exposure to smoke and tar and
11 nicotine, is that right?
12 A. Yes.
13 Q. And that's because it just hypothetically talks,
14 Dr. Benowitz, if there is somebody who switches brands
15 and then compensates a hundred percent for six months,
16 but then stops, that person's exposure is going to be
17 different from somebody who compensates for the whole
18 length of their time that they smoke the low tar brand,
19 is that right?
20 A. Yes.
21 Q. And with respect to these class representatives,
22 you didn't do any study to determine whether, if
23 assuming they compensate, how long that compensation
24 last, is that right?
155
12 MR. LOMBARDI: My question is, you didn't, for
13 instance, Miss Miles, you didn't meet with Miss Miles
14 and determine how long her compensation, if any, lasted,
15 is that right?
16 A. That is correct.
17 Q. And the same answer with respect to the other
18 four class representatives in this case, is that
19 correct?
20 A. That is correct.
21 Q. And the same as to any member of this class, is
22 that correct?
23 A. Correct.
24 Q. And now your view based on all of the studies
156
1 that you talk about, and you've talked about in the
2 Monograph, is it compensation is on average about 75 to
3 80 percent, is that right?
4 A. In forced switching studies.
5 Q. You rely on a variety of different exposure
6 studies, is that right, Dr. Benowitz, in the Monograph,
7 for instance?
8 A. Different methods of studying the question, yes.
9 Q. And if you roll together all of those different
10 types of exposure studies, your testimony is that on
11 average compensation is in the vicinity of 75 to 80
12 percent, is that right?
22 A. The 80 percent refers to forced brand switching
23 studies. The studies that look at self selective brand
24 suggest that it's 100 percent for most brands.
157
1 Q. (By Mr. Lombardi) Have you ever testified under
2 oath -- this is the Bullock deposition, looking at page
3 197.
12 Q. (By Mr. Lombardi) You gave a deposition in a
13 case called Bullock, is that right, Dr. Benowitz?
14 A. Yes.
15 Q. In that case you were asked to roll together all
16 of the different types of exposure studies that you
17 relied on. Is it your testimony that on average
18 compensation is wit in the vicinity of 75 to 80
19 percentage, you gave the answer something like that. Is
20 that correct?
23 MR. LOMBARDI: My let me start above. Before we
24 look at the transcript, Dr. Benowitz, let me make sure
159
1 there is no confusion, Dr. Benowitz. Are you with me?
2 A. Yes.
3 Q. I'm sorry. If you take all of the exposure
4 studies together, all the exposure studies that you've
5 done and are familiar with, is it the fact that you
6 believe compensation is in the vicinity of 75 to 80
7 percent?
8 A. Well, it's a really semantics in terms of rolling
9 together the different studies, because there really are
10 two different, two fundamentally different kinds of
11 studies. If you are talking about switching studies,
12 then the answer is yes. If you're talking about
13 exposure studies, the answer is wit no to this question.
14 I answered --
15 THE COURT: No. Okay. Go ahead and ask him the
16 question.
17 Q. Now, did you testify under oath in the Bullock
18 case that so rolling together -- this is the question,
19 so rolling together, all different types of exposure
20 studies that you've relied on, is it your testimony that
21 on average compensation is in the vicinity of 75 to 80
22 percent? And your answer was something like that?
23 A. That's what I stated, but above it I actually
24 explains both kinds of studies in exactly the same way I
160
1 explained it today.
16 engage in more compensation, is that correct?
17 A. More than what?
18 Q. More -- whatever, are you comfortable say -- what
19 was, under cross sectional studies, you said 75 to 80
20 percent, or what was the type of study you said was 75
21 to 80 percent?
22 A. Forced brand switching studies.
23 Q. In forced brand switching studies, some people
24 smoke -- compensate more than 75 to 80 percent, is that
161
1 right?
2 A. Yes.
3 Q. And some smoke less than 75 to 80 percent?
4 A. Yes.
5 Q. And some don't compensate at all, is that right?
6 A. Probably.
7 Q. And that's true of individual smokers, is that
8 right, some compensate, some don't, and some part
9 somewhere in between, is that right?
10 A. In the experimental studies, that's correct.
11 Q. I'm talking about the smokers in the real world
12 right now.
13 THE COURT: You're changing now.
14 MR. LOMBARDI: I'm telling him I'm changing.
15 THE COURT: Rephrase your question, because I'm
16 not following with you on this line.
17 MR. LOMBARDI: In the real world, smokers, as they
18 smoke in the real world, some compensate fully, is that
19 right?
20 A. The best we have for the real world data are the
21 cross sectional studies, and in those so far as we can
22 tell, compensation on average is complete. Some people
23 probably don't compensate fully, some people compensate
24 more than fully, but the best average data we have
162
1 suggested, there is no difference in exposure, which
2 means compensation is complete.
3 Q. And to be clear, doctor, I'm not talking about
4 averages, I'm talking about individual smokers out
5 there, on an individual basis --
4 MR. LOMBARDI: I'm talking about individuals, Dr.
5 Benowitz, are we on the same page right now?
6 A. Yes.
7 Q. And if you went up to an individual smoker on the
8 street, it's possible that you wouldn't know without
9 testing whether that smoker compensated or didn't
10 compensate, is that right?
23 A. If a person switched from a higher yield
24 cigarette to a lower yield cigarette, if that person
164
1 switched, do we know the exact number compensation?
2 MR. LOMBARDI: For that individual.
3 A. No. On average it's complete, but I can't tell
4 you the exact.
5 Q. Thank you. That's because different smokers
6 smoke different, is that right?
7 A. Yes.
8 Q. They get different levels of tar and nicotine?
9 A. Yes.
10 Q. Some get more than the FTC machines yield?
11 A. Yes.
12 Q. Some get less than the FTC machines yields?
13 A. Yes.
14 Q. They smoke different numbers of cigarettes in a
15 day, is that right?
16 A. Yes.
17 Q. Different numbers of puffs?
18 A. Yes.
19 Q. The puffs of each individual smoker lasts shorter
20 or longer than the puffs of other individual smokers, is
21 that right?
22 A. Yes.
23 Q. There is a different amount of time between the
24 puffs that smokers take on the cigarettes?
165
1 A. Yes.
2 Q. There is some who smokes cigarettes farther down
3 to the butt end than others, is that right?
4 A. Yes.
5 Q. Some smokers inhale to a deeper extent, is that
6 right?
7 A. Yes.
8 Q. And some smokers inhale for a different period of
9 time, is that right?
10 A. Yes.
11 Q. Individual smokers themselves, say, we have Joe
12 Smith here, a hypothetical smoker, will smoke
13 differently at different times of the day, is that
14 right?
15 A. Yes.
16 Q. Will smoke different cigarettes differently, is
17 that right?
18 A. What do you mean different cigarettes?
19 Q. I guess that's a fair point. What I'm meaning to
20 say is the first cigarettes of the day they might smoke
21 different than the last cigarette of the day?
22 A. Yes. That can happen.
23 THE COURT: Can we adjourn at this time or recess
24 for lunch?
166
1 MR. LOMBARDI: That would be fine.
2 THE COURT: Is that a good break?
3 MR. LOMBARDI: Yes. It's a good break.
4 THE COURT: A half hour for lunch.
5 (End of transcript. See Volume V(b) for further
6 testimony on this date.)
7
05 MR. LOMBARDI: Thank you, your Honor.
06 CROSS EXAMINATION
07 BY MR. LOMBARDI:
08 Q. Good afternoon, Dr. Benowitz.
09 A. Good afternoon.
10 Q. Dr. Benowitz, nicotine if I understood your
11 testimony correctly is the driver for compensation, is that
12 right?
13 A. The primary driver, yes.
14 Q. And the level of nicotine for an individual smoker
15 may change over ?? strike the question. I left something
16 out.
17 The level of nicotine that an individual smoker wants
18 may change over time, is that right?
19 A. That can occur, yes.
20 Q. And whether it does or does not occur again depends
21 on the individual smoker, is that right?
22 A. Yes.
23 Q. And because nicotine is the driver for
24 compensation, if the amount of nicotine that a particular
Page 4
01 smoker needs changes the amounts that that smoker will
02 compensate will change, is that right?
03 A. Well, if it's changing then the whole concept of
04 compensation sort of goes out of place because if the level
05 of nicotine that's desired changes then it would change the
06 intake from higher-yield cigarette as much as low-yield
07 cigarette so compensation is not affected in an absolute
08 sense.
09 Q. And just to confirm, Dr. Benowitz, you have not
10 determined the level of nicotine that any of the class
11 representatives in this case individually need, is that
12 right?
13 A. That is correct.
14 Q. Now, Dr. Benowitz, the ?? strike the question. Did
15 I understand correctly you did your first compensation in the
16 early 1980's, is that right?
17 A. Yes.
18 Q. Was that your first involvement in smoking and
19 health type issues or had you been involved before that?
20 A. We had done studies prior to that looking at the
21 effects of nicotine in people, looking at the way smokers
22 metabolize nicotine and eliminated nicotine so we have been
23 doing studies since the late '70's, but this was the first
24 compensation study.
Page 5
01 Q. But if you first started ?? so you first started
02 working on smoke and health type issues in the late '70's, is
03 that right?
04 A. Yes.
05 Q. At that time or over the course of time since then
06 you have become aware of some of the history before the
07 1970's related to smoking and health, is that right?
08 A. Yes.
09 Q. And you frequently testify about that, is that
10 right?
11 A. I have, yes.
12 Q. And is it fair to say, Dr. Benowitz, that the whole
13 theory of low?tar cigarettes begins with the existence of a
14 dose?response relationship, is that right?
15 A. Yes, from the studies of mice and skin cancers.
16 Q. And that was ?? you are referring to studies that
17 were done back in the 1950's, is that right?
18 A. Yes.
19 Q. I shouldn't say they were only done in the 1950's
20 because they have been done since then too, is that right,
21 Doctor?
22 A. Yes.
23 Q. But the first important ones were done in the
24 1950's and they were thought to establish that the higher the
Page 6
01 level of tar the more likely you were to get a particular
02 disease, is that right?
03 A. Well, at least for cancer, yes.
04 Q. And let's talk specifically about lung cancer too,
05 is that right?
06 A. Yes.
07 Q. They combined that with some of the epidemiology
08 studies that were coming out at around the same time in the
09 1950's and came to the conclusion that if you lower tar level
10 that would be a good thing, is that right?
11 A. I am not sure of the length of the epidemiology
12 studies but certainly based on the animal dose-response data
13 it was thought lower tar meant less cancer.
14 Q. That relationship ?? the dose-response relationship
15 that we are talking about has remained or you still consider
16 it valid today, is that right?
17 A. For cancer, yes.
18 Q. So that ?? and throughout the entire period of time
19 from the '50's until today you believe it was valid to
20 believe if you lowered the tar you would have a positive
21 effect on the cancer rate, is that right?
22 A. In general, yes. The only caveat being if you
23 change the composition of the tar in some way to make it more
24 carcinogenic but generally I would say I agree with you.
Page 7
01 Q. Okay. And in addition the ?? as ?? and so low?tar
02 cigarettes were developed in response, you know, in response
03 to this dose?response discussion about lowering the levels of
04 tar being a good thing, is that right?
05 A. Yes.
06 Q. And as low?tar cigarettes were developed you also
07 know the compensation started to be discussed, is that right?
08 A. Discussed by whom? I am not sure.
09 Q. Well, there are articles out in the academic
10 literature ?? let me put it this way. There was discussion
11 as early as 1945 about compensation ?? about nicotine being
12 the reason people smoke, is that right?
13 A. That's correct.
14 Q. And people being able to titrate based on the
15 amount of nicotine they got, is that right?
16 A. Yes, those ?? but what the early studies showed was
17 not compensation in the way we are talking about but showed
18 that if you gave people extra nicotine they might smoke less
19 or if you changed the nicotine concentration in the cigarette
20 they might smoke different amounts.
21 Q. Right. My only point is that those types of
22 studies were being done going way back before the '70's, is
23 that right?
24 A. Yes.
Page 8
01 Q. By the time you get to the '60's and '70's
02 compensation in terms of the way smokers smoke a cigarette
03 was being discussed, is that right?
04 A. Yes.
05 Q. Studies started to be done on compensation, is that
06 right?
07 A. Yes.
08 Q. And there were studies done throughout the 1970's
09 on compensation, is that right?
10 A. Yes. There were some mostly behavioral?type
11 studies, cigarette count studies of cigarette butt studies.
12 Q. Okay. Just so the record is clear cigarette butt
13 study is a way of studying compensation, is that right?
14 A. It's not great, but it is a way to do it.
15 Q. And that was my next question. It's not a great
16 way because what you are doing you are literally taking a
17 cigarette butt and trying to analyze how much nicotine is in
18 it, is that right?
19 A. Yes.
20 Q. That has not proved to be a very accurate way of
21 measuring compensation, is that right?
22 A. That is correct.
23 Q. And the cotinine studies that you worked on and
24 testified about today, is that true?
Page 9
01 A. Biomarkers studies in general.
02 Q. Throughout the 1970's you are aware that the public
03 health community generally and the government were
04 encouraging people to switch to cigarettes that had lower
05 yields under the FTC test, is that right?
11 Q. Well, you are aware that the public health
12 community told the public what types of cigarettes would be
13 preferable to smoke if you were going to smoke?
14 MR. BRICKMAN: Objection, your Honor, same thing.
15 THE COURT: I will let that one ?? the other one had the
16 federal government. I will allow this.
17 A. Well, the position of public health was that if
18 people could reduce their tar exposure that would be a
19 beneficial thing to do, and the assumption was made at that
20 time that lower yield cigarettes would reduce exposure.
21 Q. And when you say lower yield you are referring
22 specifically to cigarettes that measured lower on the FTC
23 test?
24 A. Yes.
Page 10
01 Q. And you were aware in the 1970's, Doctor, of
02 various ?? strike that. Do you know what a public service
03 announcement is?
04 A. Yes.
05 Q. It's an announcement that goes out over the air
06 waves or in publications that can be about a variety of
07 subjects, but it's directed towards the public, is that
08 right?
09 A. Yes.
10 Q. You are aware that there were public service
11 announcements in the 1970's concerning low?tar cigarettes, is
12 that right?
13 A. I said I am not aware of them, could be, but I have
14 never heard one.
15 Q. Okay. Well ?? and when you say "heard one" I am
16 not meaning to limit you to something you would have heard on
17 the radio or heard on television, it's written materials as
18 well. Are you aware of written materials?
19 A. I don't know the exact dates. I know there were
20 some materials suggesting that if you can't stop smoking you
21 might switch to low?yield.
22 Q. Again low?yield meaning those that measure lower on
23 the FTC tests?
24 A. Yes.
Page 11
01 Q. Doctor, when you reference low?yield, that's what
02 you are referring to, is that right?
03 A. Yes.
04 Q. Let me show you one and just see if you have seen
05 this before.
06 MR. LOMBARDI: I can ?? I handed the witness what's been
07 marked as 4507, your Honor.
08 And, Dr. Benowitz, is this a poster that you have seen
09 before?
10 A. I don't recognize it. It's interesting, but I
11 don't recall seeing it.
12 Q. Well, Dr. Benowitz ?? you can take that off the
13 screen.
14 Dr. Benowitz, in any event you did see materials that
15 said if ?? the recommendation of the public health community
16 to smokers was always to quit. That was the best thing they
17 could do for their health, is that right?
18 A. Yes.
19 Q. But you did see recommendations from the public
20 health community to smokers that if they weren't going to
21 quit for whatever reason that they should lower the yield of
22 the cigarettes they were smoking, is that right?
23 A. Yes, there have been such recommendations.
24 Q. And by the time you get to the late 1970's, 1979,
Page 12
01 for instance, the Surgeon General is starting to provide
02 information on low-yield cigarettes in reports, is that
03 right?
04 A. I know by 1981. I don't know about 1979.
05 Q. Let's talk about 1981. In 1981 the Surgeon General
06 came out with a report, is that right?
07 A. Yes.
08 Q. And the report talked about the changing cigarette,
09 is that right?
10 A. Yes.
11 Q. And what the report does was it looked at a bunch
12 of different factors relating to cigarettes as they changed
13 over the years, correct?
14 A. Yes.
15 Q. And one of the things that the report talked about
16 specifically was low?yield cigarettes?
17 A. Yes.
18 Q. And the method by which the cigarette companies
19 designed the cigarettes to make them low?yield, is that
20 right?
21 A. Yes.
22 Q. And they talked about the issue of compensation in
23 that Surgeon General's Report, is that right?
24 A. Yes.
Page 13
01 Q. And they talked about the fact that compensation
02 could have a negative effect on the benefits of smoking low?
03 yield cigarettes, is that right?
04 A. Yes.
05 Q. In other words compensation might eliminate the
06 benefits of smoking low-yield cigarettes, is that right?
07 A. Yes, although at that time most researchers and
08 public health people did not think that compensation would be
09 complete. They thought that even if there was some
10 compensation that a lower?yield cigarette would mean less
11 exposure. And the public health policy has always been not
12 that people should switch to particular brands but that they
13 should lower their tar exposure and that may occur if you
14 switch to a lower?yield brand.
15 Q. But they had those beliefs as best you know at
16 least in good faith, is that right?
17 A. Yes. Well, in the 1970's I think that scientists
18 and public health people still thought that the machine
19 yields predicted exposures.
20 Q. And they made statements to the public based on
21 that thought, is that right?
22 A. Yes.
23 Q. And they did that not intending to deceive anybody?
24 A. Right.
Page 14
01 Q. They did that because they thought what they were
02 saying was in the best interest of the public, is that right?
03 A. Yes.
04 Q. And in 1981 when the Surgeon General came up with
05 this report not only did the Surgeon General talk about
06 design factors that went into cigarettes and compensation but
07 the Surgeon General also talked about the epidemiology that
08 existed at that time, is that right?
09 A. Yes.
10 Q. You are aware because you looked at it I am sure
11 hundreds of times, Dr. Benowitz, that the epidemiology at
12 that time seemed to show a benefit with the low?yield
13 cigarettes?
14 A. Well, a caveat and I talked about this before.
15 What they talk about as low?yield cigarettes in the
16 epidemiology studies was really what are currently high yield
17 cigarettes. They were looking at non?filtered cigarettes
18 like in the 30 milligram tar range versus low-yield
19 cigarettes which at that time were like 15 to 18 milligrams.
20 So they were seeing a difference, but it was -- really the
21 biggest difference was non?filter versus filter.
22 No one ever looked at the categories represented by
23 Marlboro and Marlboro Light, for example.
24 Q. That's because there is a lag time in terms of
Page 15
01 epidemiology, is that right?
02 A. Yes.
03 Q. There is a lag time because there is a latency
04 period for contracting lung cancer, is that right?
05 A. Yes.
06 Q. So the Surgeon General was using the very best data
07 that was available at that time in 1981, is that right?
08 A. Yes.
09 Q. And you don't doubt for a second that the Surgeon
10 General was in good faith when the Surgeon General indicated
11 that there may be some benefits to switching to low?yield
12 cigarettes, is that right?
13 A. I think that was the belief of the scientists at
14 that time.
15 Q. And that belief ?? I mean you were studying this
16 kind of thing at that time, is that right, meaning tobacco
17 issues at that time, is that right?
18 A. Yes.
19 Q. And you in good faith believed it was a good thing
20 to lower tar yields in cigarettes at that point in time, is
21 that right?
22 A. Yes.
23 Q. That was based on the very best scientific
24 information that was available at the time, is that right?
Page 16
01 A. Yes.
02 Q. I am just going to put up here a line. This would
03 be 1980, 1990, 2000. So the Surgeon General Report 1981 and
04 I put SGR, your Honor, for Surgeon General Report, fell about
05 right there, is that right, on that line at least?
06 A. Yes.
07 Q. And after the Surgeon General Report came out in
08 1981 there continued to be a belief that low?yield cigarettes
09 offered some benefits to the public health, is that right?
10 A. Yes.
11 Q. And in future Surgeon General Reports, for instance
12 I think the 1982 Surgeon General Report also reported on
13 those kinds of benefits, is that right?
14 A. Could be. I forgot specifically which report was
15 which, but I don't doubt it.
16 Q. There were other Surgeon General Reports here in
17 the early 1980's that addressed the same issue, is that
18 right?
19 A. Yes.
20 Q. Based on those kinds of reports and that kind of
21 information, the public health community was encouraging the
22 tobacco companies to lower the tar?yields of their
23 cigarettes, is that right?
15 Q. Well, in the early 1980's, Dr. Benowitz, you are
16 aware that the tobacco companies ?? well, actually it goes
17 before the 1980's. You are aware that tobacco companies took
18 steps to lower the tar yields of their cigarettes, is that
19 right?
20 A. Yes.
21 Q. They started to do that back when people first
22 started talking about lowering tar yields being a good thing,
23 is that right?
24 A. Yes.
Page 18
01 Q. And you are not critical of the tobacco companies
02 for having taken steps to lower the tar yield of their
03 cigarettes back in the '60's, '70's and '80's, is that right?
04 A. I am not critical of the idea that they should want
05 to reduce tar exposure. The question of whether it was done
06 effectively is a different story, but the spirit behind it I
07 agree with.
08 Q. And, Dr. Benowitz, in the mid 1980's you
09 participated in some conferences concerning low?yield
10 cigarette policy, is that right?
11 A. That's correct.
12 Q. And specifically you participated in one called the
13 Scarborough Conference. Do I have the name right?
14 A. Yes.
15 Q. You call it the Scarborough Conference or is it
16 something different?
17 A. In other words Scarborough, Maine, Scarborough
18 Conference.
19 Q. Tell the Judge generally what the Scarborough
20 Conference was.
21 A. That was a conference of scientists who addressed
22 the question of the low?yield cigarette and whether there was
23 any evidence that low?yield cigarette movement was worthwhile
24 and whether public health should support the idea of
Page 19
01 low?yield cigarettes ?? lower?yield cigarettes.
02 Q. Okay. This was a conference that was not just of
03 American scientists, is that right?
04 A. There was some international scientists.
05 Q. And you were one of the scientists that
06 participated in the Conference?
07 A. Yes.
08 Q. And a paper came out at the end of that Conference,
09 is that right?
10 A. Yes.
11 Q. And it was created ?? at least it says it was
12 authored by all the participants of the Conference, is that
13 right?
14 A. Yes.
15 Q. I am handing the witness what's been marked as
16 5059. Dr. Benowitz, I have handed you what's been marked as
17 Exhibit 5059. You have seen that document before, is that
18 right?
19 A. Yes.
20 Q. It is an article from the Lancet, L?A?N?C?E?T,
21 dated November 16th, 1985, is that correct?
22 A. Yes.
23 Q. And the article ?? well, the Lancet ?? tell the
24 Court what the Lancet is, Doctor.
Page 20
01 A. That is a well-known medical journal published in
02 the United Kingdom.
03 Q. And this is the article that you just referred to
04 that came out of the Scarborough Conference, is that right?
05 A. Yes.
06 Q. And actually ?? why don't you go in on the title
07 first please, and the title was: Is There a Future For Lower
08 Tar Yield Cigarettes?
09 Do you see that?
10 A. Yes.
11 Q. That's just as you described to us what the topic
12 of this Conference was, correct, Dr. Benowitz?
13 A. Yes.
14 Q. And, Jamail, if you could show us the first few
15 lines that's not highlighted.
16 This first paragraph, the first few sentences
17 describes what the purpose was, is that right, Dr. Benowitz?
18 A. Yes.
19 Q. International ?? says, An international workshop
20 was held to consider whether the policy adopted in many
21 countries to encourage the decline in cigarette tar yields
22 was beneficial. The consensus was that the policy had been
23 beneficial and that tar yields should be further reduced.
24 Was that an accurate statement of the conclusions
Page 21
01 related to the falling tar yields in cigarettes?
02 A. Yes, although again I need to point out that the
03 benefit ?? and stated here really was comparing non?filter
04 versus filter cigarettes.
05 Q. Again you are referring to the fact the
06 epidemiology data out there compared filter and non?filter
07 cigarettes, is that right?
08 A. That's correct.
09 Q. That's due to the lag time that we talked about,
10 the latency period, is that right?
11 A. Right. And so the recommendation for lower-yield
12 cigarettes was really based on the hope that with the more
13 modern cigarettes that there really would be a reduction of
14 exposure as yields went down.
15 Q. And that made sense in terms of the dose?response
16 relationship, right, Doctor, if you could lower the exposure
17 you would be lowering the dose and hopefully lowering the
18 response which was the disease in humans, right?
19 A. There is no question that lowering the actual
20 exposure was desirable. The only question was whether that
21 would be accomplished by the existing low?yield cigarettes.
22 Q. And there is ?? you are not being critical of
23 yourself or the other people that participated in the
24 Scarborough Conference at this time for relying on the
Page 22
01 epidemiology data that was available at that time because it
02 was the only data that available at that time, is that right?
03 A. Yes, that's correct.
04 Q. And it's your testimony that the people at this
05 Conference were acting in good faith, is that right?
06 A. Yes.
07 Q. And they were acting on the basis of the best
08 scientific information that was available, is that right?
09 A. Yes.
10 Q. Let's go to the first ?? just go down to the bottom
11 of that column so you can see your name in lights, Dr.
12 Benowitz. There it is. Participants: N. Benowitz, that's
13 you?
14 A. Yes.
15 Q. Let's go back to the highlighted before. It says:
16 Since the early 1970's the U. S. and U. K. authorities have
17 also recommended that people who are unwilling or unable to
18 give up smoking switch to cigarettes of lower tar and
19 nicotine yield in the expectation that the adverse health
20 effects of smoking could be reduced?
21 A. Yes.
22 Q. That's accurate, is that right?
23 A. Yes.
24 Q. And then in the next column we go on to consider
Page 23
01 whether lower yield cigarettes have been of help so far.
02 Do you see that heading: Have lower yield cigarettes
03 been of help so far?
04 A. Yes.
05 Q. We are back on the first page, Dr. Benowitz, that
06 right hand column?
07 A. Yes.
08 Q. And the first thing it said there is that the
09 carcinogenic activity of tobacco smoke seems to reside in the
10 tar so it is reasonable to expect that cigarettes yielding
11 less tar would be less likely to cause lung cancer. It goes
12 back to the dose?response relationship again, right, Dr.
13 Benowitz?
14 A. Yes.
15 Q. However, the relation may not be straight forward.
16 One cause of uncertainty involves, quote, compensatory,
17 closed quote, smoking. The tendency of smokers ?? excuse me,
18 the tendency of smokers to increase the amount of smoke
19 inhaled from a cigarette of lower tar yield and to a lesser
20 extent to increase the number of cigarettes smoked?
21 Do you see that?
22 A. Yes.
23 Q. So compensation ?? and the compensation issue that
24 you raised with us today is something that was at least being
Page 24
01 discussed at the time you attended this Conference in 1985,
02 is that right?
03 A. Yes.
04 Q. And the specific concern was, is this compensation
05 going to prevent low?tar cigarettes, low?yield cigarettes I
06 should say from having any benefit, is that right?
07 A. Yes.
08 Q. Could you go to the next paragraph? The paragraph
09 that's not highlighted right below that paragraph, right
10 there, Jamail. Thank you.
11 And then it discusses those epidemiological studies that
12 you have made reference to, right, Dr. Benowitz?
13 A. Yes.
14 Q. Prospective epidemiological studies of lung cancer
15 show on average an approximate 20 percent reduction in risk
16 associated with lower tar (or filter) cigarettes compared
17 with higher tar (or plain) cigarettes and that's referring to
18 what you are talking about the epidemiology addressing filter
19 versus non?filter at that time, correct, Doctor?
20 A. Yes.
21 Q. And then it goes on to say, a difference that is
22 very much what would be expected from the intake studies.
23 Most lung cancers still occurred in filter cigarette smokers
24 who have switched from plain cigarettes so the full effect of
Page 25
01 filter cigarettes had not yet been seen. One case control
02 study that has looked at life?long filter smokers suggest
03 that the reduction in risk may be between 30 and 40 percent.
04 Do you see that?
05 A. Yes.
06 Q. And that is a reasonable summary of the discussions
07 you had at this conference concerning the epidemiology of
08 low?yield cigarettes, is that right, Doctor?
09 A. That's correct.
10 Q. You went on at this Conference to consider the
11 evidence related to compensation and what should be done on
12 that. If you can go to the next page, Jamail, and go to the
13 highlighted portion please.
14 The ?? it says the important of compensatory smoking
15 should not be overemphasized. You are talking again about
16 compensation. Right, Dr. Benowitz?
17 A. Yes.
18 Q. And the concern is with determining whether it
19 takes away the benefits of smoking low?yield cigarettes?
20 A. Yes.
21 Q. Even if further reductions in tar yields produce
22 proportionately less benefit, any benefit would be
23 worthwhile. Concerns that a lower tar policy will encourage
24 smoking do not seem to be well?grounded and tar reduction
Page 26
01 programs may actually help people to give up smoking.
02 There is one of the topics that was discussed, is that
03 right?
04 A. Yes.
05 Q. And did you agree that at that point in time based
06 on the evidence you had at that point in time that the
07 important of compensatory smoking should not be
08 over?emphasized?
09 A. Well, I am not sure where that ?? what that phrase
10 means. Clearly there was a major emphasis on compensation.
11 It was discussed here. I presented data on it.
12 I think what this means is that compensatory
13 smoking should not lead to the abandonment of any
14 recommendations to recommend lower-yield cigarettes.
15 Q. Okay. And the fact there was that we had knowledge
16 then that compensatory smoking existed at that time shouldn't
17 be enough to abandon the policy towards low?yield cigarettes,
18 is that right?
19 A. Right, although again as I mentioned before the
20 main benefit from low yield cigarettes seems to come ?? from
21 very low?yield cigarettes comes from reducing exposures. I
22 think the hope then is that if you are able to drive people
23 down to very low yields you could significantly reduce
24 exposure.
Page 27
01 Q. Okay. But we are not talking specifically ?? at
02 least in this paragraph about the lowest ultra low?yield
03 cigarettes, correct?
04 A. That's correct.
05 Q. And the article that seems to recognize in that
06 second sentence about even if further reductions in tar yield
07 produce proportionate less benefit. Do you see that part?
08 A. Yes.
09 Q. That recognizes because of compensatory smoking, a
10 smoker might not get the entire drop in tar yield that you
11 see measured on the machine, is that right?
12 A. Yes.
13 Q. And it is suggesting even if that kind of reduction
14 ?? if you don't get the same reduction as you might get under
15 the machine you still would get some benefit, is that right?
16 A. Yes.
17 Q. In any benefit, meaning any reduction in tar would
18 be a good thing, is that right?
19 A. Yes.
20 Q. Let's go to the next page. And, Jamail, I want to
21 get the paragraph ?? top of the paragraph under the first
22 heading on that page right there.
23 And there was discussion specifically, Dr. Benowitz,
24 about measurement of tar levels, right, in this conference?
Page 28
01 A. Yes.
02 Q. And there was discussed whether these tar tables
03 may mislead smokers, correct?
04 A. Yes.
05 Q. And when we talk about tar tables at least in the
06 United States we are talking about the FTC test method, is
07 that right?
08 A. Yes.
09 Q. We are talking about the results that come out of
10 the FTC test method that were published, is that right?
11 A. Yes.
12 Q. One of the things that you folks considered at this
13 Conference was whether compensatory ?? since compensatory
14 smoking defeats the purpose of government tar tables, tables
15 of tar, excuse me, should you get rid of the tar tables.
16 That's one of the thing that was considered, is that right?
17 A. Yes.
18 Q. And they talked specifically about a situation that
19 you were involved in where one manufacturer had allegedly
20 cheated the FTC machine, is that right?
21 A. Well ??
22 Q. I know what's giving you a problem. I will break
23 it up.
24 A. I was not involved.
Page 29
01 Q. I will explain. You know what that's referring to
02 at least?
03 A. Yes.
04 Q. It's referring to a situation with something called
05 the Barclay cigarette?
06 A. Yes.
07 Q. And that happened in the early 1980's?
08 A. Yes.
09 Q. It was a cigarette where the FTC was taking action
10 based on the Barclay cigarette which according to some didn't
11 properly register under the machine, is that right?
12 A. That's right.
13 Q. And you actually ?? you were involved in the
14 proceedings to evaluate the Barclay cigarette, is that right?
15 A. Yes.
16 Q. And you provided testimony to the FTC on that at
17 that time, is that right?
18 A. Yes.
19 Q. And one of the things that happened in the context
20 of the Barclay situation was there was a lot of discussion of
21 compensation for one thing, is that right?
22 A. Could be. I don't really recall specifically.
23 Q. Fair enough, fair enough. There was ?? there was
24 certainly discussion about the accuracy of the FTC test
Page 30
01 method, vis-a-vis what a individual smoker would get?
02 A. Yes.
03 Q. That's true?
04 A. Yes.
05 Q. And you provided testimony back in 19 ?? was it '82
06 or so about that?
07 A. Something like that.
08 Q. And you actually ?? who did you testify on behalf
09 of at that time?
10 A. The FTC.
11 Q. And you discussed ?? specifically discussed the FTC
12 test method at that point, is that right?
13 A. Yes.
14 Q. I should put that up here. 1982 is Barlcay.
15 That's what I am writing here. And then '85 was Scarborough,
16 right? I am running out of ?? I am not sure I know how to
17 spell it, Judge.
18 And then, Jamail, if you could just go down to the
19 next paragraph right below that paragraph. And then the
20 article goes on to say: The Canadian and British data and
21 the results of unpublished studies by the U. K. Government
22 chemists largely counter the argument that the tar table
23 misleads smokers. Altering the machine smoking conditions
24 does not materially affect the ranking of different brands.
Page 31
01 Do you recall that part of the discussion?
02 A. Vaguely.
03 Q. Okay. Well, when you are talking about the
04 sentence that talks about altering the machine's smoking
05 conditions does not affect the ranking of different brands.
06 What the discussion was about was that machine smoke doesn't
07 give you precise measurements of what an individual will get
08 from a cigarette, is that right?
09 A. Yes. I think what this is saying is that if you
10 change the parameters and you test different cigarettes with
11 different parameters they are still the same ranking.
12 Q. So for instance, just as an example, if you have
13 Marlboro regulars and Marlboro Lights and measure them under
14 the current FTC method you will get Marlboro regulars as
15 higher in tar than Marlboro Lights and if you change the
16 parameters you will get the same rank order?
17 A. Right.
18 Q. That's what the FTC's purpose was in doing the FTC
19 test method, wasn't it, to get a rank order of cigarettes
20 according to their tar yields, is that right?
21 A. Yes.
22 Q. It wasn't intended to give a precise measurement of
23 the milligrams that any individual smoker would get, is that
24 right?
Page 32
01 A. Not precise, but it was intended to give the
02 consumer some idea of the relative exposure they would expect
03 from different cigarettes.
04 Q. Okay. And specifically give them an idea of a
05 comparison between different cigarettes, is that right?
06 A. Right.
07 Q. And a ranking of different cigarettes, is that
08 right?
09 A. But it wasn't just for the numbers. It was that
10 the consumer might on average get less tar exposure from a
11 lower tar cigarette.
12 Q. Fair enough. Let's go to the next one, Jamail.
13 The tobacco industry has complied with the lower
14 tar policy in the United States and the U. K.
15 Do you see that?
16 A. Yes.
17 Q. And so you discussed the fact that the tobacco
18 industry had measured tar and nicotine levels as required by
19 the FTC in the United States, is that right?
20 A. Yes.
21 Q. And there was a lower tar policy existing in the
22 United States at that point in time, is that right?
23 A. Yes.
24 Q. And it had to do with not only just measuring the
Page 33
01 products but also ensuring that the tar yields of the
02 products under the machine measured came down over time, is
03 that right?
04 A. Well, that was the hope.
05 Q. But when we talk about the lower tar policy in the
06 U. S., that's what we are talking about, is that right?
07 A. Yes.
08 Q. And that was the policy that existed at that time
09 in 1985, is that right?
10 A. Yes.
11 Q. And then if we can go to the next one Jamail, next
12 page. This is the conclusion, Dr. Benowitz: There is a
13 future for lower tar-yield cigarettes but the aim should be
14 to reduce the yield of other smoke components as well as of
15 tar. Is that right?
16 A. That's what that says.
17 Q. And that was the conclusion of the Scarborough
18 Conference, is that right?
19 A. Yes.
20 Q. And the people at the Scarborough Conference, you
21 were there with them the whole time, is that right?
22 A. Yes.
23 Q. And you heard the discussions that went on, is that
24 right?
Page 34
01 A. Yes.
02 Q. You heard them discussing scientific issues?
03 A. Yes.
04 Q. And you heard them discussing the design of the
05 cigarettes, is that right?
06 A. Yes.
07 Q. You heard them talking about the FTC test method?
08 A. Yes.
09 Q. You don't have any reason to doubt these people at
10 this Scarborough Conference were acting in the utmost of good
11 faith when they came to the conclusions they came to, do you?
12 A. No, but there is an important conclusion that you
13 did not state.
14 Q. I might have been getting there, Doctor, but I will
15 let you take me there right now.
16 A. The public needs to be made aware of the
17 uncertainties of the policy, particularly those arising from
18 compensatory smoking, and that was the big question then and
19 is really the essence of the issues we have been talking
20 about today.
21 Q. Okay. And, Doctor, the ?? you personally at the
22 time you were at this policy (sic.), you personally acted in
23 the utmost in good faith, is that right?
24 A. Yes.
Page 35
01 Q. And the recommendations you made were
02 recommendations based on the very best science that was
03 available at that time, is that right?
04 A. Yes.
05 Q. You didn't intend to deceive anybody, is that
06 right?
07 A. That's correct.
12 Q. (Mr. Lombardi) And, Dr. Benowitz, you continued to
13 work on tobacco issues after 1985 and the Scarborough
14 Conference, is that right?
15 A. Yes, sir. Also by the way there was one other
16 statement here that I think is relevant. I don't know if I
17 can bring that up. There was another statement that was
18 quite relevant to this issue.
19 Q. Go ahead.
20 A. On page 1112 where it says, Diminishing returns and
21 possibility of encouraging smoking, there is a statement that
22 says there is no direct evidence that the beneficial effects
23 which accompanied the reduction yield from about 35 milligram
24 to around 18 milligram tar will also be found when yields
Page 37
01 fall from the present average of 10 milligrams to 10
02 milligrams or below, and more research on the effects of
03 smoking modern lower-tar cigarettes is needed.
04 And then says, compensation might increase with
05 further reductions in yield.
06 I just want it to be clear that there was still a
07 lot of uncertainty about the relevance of this policy with
08 modern cigarettes, and all the encouragement was based on
09 what seemed to be progress going from the really high yield
10 down to 18 milligrams.
11 Q. Which was the only data you had at that time?
12 A. Yes.
13 Q. You didn't have the data on the other type of
14 cigarettes?
15 A. That's correct.
16 Q. So you acted based on what you had, right?
17 A. Right. Well we were starting to get some data. My
18 1983 study would have provided some data on this and then
19 there was studies later on that addressed the modern
20 cigarettes.
21 Q. Okay. But at this time there is no question that
22 you all were acting in good faith based on the data that was
23 available, is that right?
24 A. That's correct.
Page 38
01 Q. And you continued to work on tobacco issues as you
02 said and continued to publish articles, is that right?
03 A. Yes.
04 Q. And then that continued through 1989, is that right
05 at least?
06 A. Yes.
07 Q. And in 1989 you published another article about
08 low?tar cigarettes, is that right?
09 A. It was an editorial. I published a number of
10 research articles but in 1989 I wrote an editorial on low?tar
11 cigarettes.
12 Q. The one I am referring to, I think you know what I
13 am talking about from your answer was one that you published
14 in the New England Journal of Medicine, is that right?
15 A. Yes.
16 Q. The New England Journal of Medicine is a very
17 prestigious journal, is that right?
18 A. Yes.
19 Q. It's one that scientists read, is that right?
20 A. Scientists, clinicians, yes, both.
21 Q. And doctors read it?
22 A. Yes.
23 Q. And you understood that when you published this
24 article that it was going to be read widely by people in the
Page 39
01 medical health area, is that right?
02 A. Yes.
03 MR. LOMBARDI: I am handing, your Honor, the witness
04 what's been marked as 5213 and I have a Court copy as well.
05 Q. And this editorial was written in the New England
06 Journal of Medicine in June of 1989, is that right?
07 A. Yes.
08 Q. Okay. And Exhibit 5213 is that editorial, is that
09 right?
10 A. Yes.
11 Q. Can we put that up on the screen. And then you see
12 over on the left it says, New England Journal of Medicine,
13 correct?
14 A. Yes.
15 Q. And then on the right is the title of your
16 editorial: Health and Public Policy Implications of the "Low
17 Yield" Cigarette.
18 That was the title of your editorial, is that
19 right?
20 A. Yes.
21 Q. And then you are now going to go through in this
22 editorial and talk about the policy implications of the
23 low?yield cigarette, is that right?
24 A. Yes.
Page 40
01 Q. And did you put low-yield in quotes because what
02 you were referring to is cigarettes that tested lower on the
03 FTC test method, is that right?
04 A. That's correct.
05 Q. And then you note in the first line that: Between
06 1955 and 1987 the average tar and nicotine yield of American
07 cigarettes declined substantially. The average tar yield
08 (weighted for the volume of sales of the cigarette) fell from
09 34 to 13 milligrams, and the average nicotine yield declined
10 from 2 to 0.9 milligrams.
11 Do I have that right?
12 A. Yes.
13 Q. That's all accurate, is that right?
14 A. Yes.
15 Q. And that decline in the tar and nicotine yield of
16 American cigarettes coincided with the discussion in the
17 public health community and the government about bringing
18 down the tar yields of cigarettes, is that right?
19 A. Yes.
20 Q. And let's move on to the next one.
21 You note that there is evidence that smoking a
22 low?yield cigarette may affect the overall risks of adverse
23 health effects in a population of smokers. The implications
24 of these findings for physicians and public policy makers are
Page 41
01 the subject of this editorial.
02 That's what you are going to talk about, is that right?
03 A. Yes.
04 Q. Let's go to the next one. Now, Dr. Benowitz, you
05 knew ?? you made some reference this morning to cigarettes
06 being engineered to reduce tar levels?
07 A. Yes.
08 Q. What you meant was that it's a part of the physical
09 design of the cigarette is how tar levels are reduced, is
10 that right?
11 A. Yes.
12 Q. And it's the fact, isn't it, that tar is not
13 sitting there in the cigarette unlit, correct?
14 A. Tar is generated in the combustion process.
15 Q. That's right. And you made reference to the fact
16 that the tar of the cigarette and the nicotine of the
17 cigarette is what it is and then what's affected by the
18 cigarette design is how much smoke gets to the smoker, is
19 that right?
20 A. Yes.
21 Q. And you actually just ??
22 A. Although actually the tar generation is also. I
23 talk about that in this editorial about the idea that when
24 you puff cigarettes more intensively you actually generate
Page 42
01 more tar compared to nicotine versus the machine. So it does
02 affect tar generation also.
03 Q. And then ?? but what you are doing, only question
04 is you were aware back here in 1989 about the ways that the
05 tobacco companies were using to reduce the tar levels in
06 cigarettes, is that right?
07 A. Yes.
08 Q. So you point out that: Historically ?? this is
09 quoting again ?? the first and most important step in
10 reducing tar and nicotine yields was the addition to
11 cigarettes of a filter tip that selectively removes these
12 elements but not carbon monoxide or other gaseous components
13 from tobacco smoke.
14 By filter tip you are referring to the cellulose acetate
15 filter that's on the end of most filter cigarettes, is that
16 right?
17 A. Yes.
18 Q. More recent engineering refinements and by that you
19 are referring to what the tobacco companies did in the design
20 of the cigarettes, is that right?
21 A. Yes.
22 Q. To decrease tar and nicotine yields include the use
23 of reconstituted sheet tobacco containing larger amounts of
24 stems which has less nicotine, do you see that?
Page 43
01 A. Yes.
02 Q. You are familiar with reconstituted leaves without
03 getting into all the details, Dr. Benowitz, it's kind of a
04 paper making process that's applied to scraps of tobacco?
05 A. Yes.
06 Q. You take the scraps and make it into sheets and
07 then you break it up for use in cigarettes?
08 A. Yes.
09 Q. Expanded or puffed tobacco which results in less
10 tobacco per cigarette, you are aware of that at the time?
11 A. Yes.
12 Q. And expanded tobacco at that time ?? I have heard
13 it ?? I don't know if this analogy works for you, Dr.
14 Benowitz, it's like puffed rice.
15 A. Yes.
16 Q. Is that your understanding, you puff it up so that
17 the tobacco will take up more space in the rod of the
18 cigarettes?
19 A. Yes.
20 Q. Therefore you get less tobacco overall when you use
21 more expanded tobacco, other things being equal, correct?
22 A. Yes.
23 Q. Faster burning times ?? and faster burning times
24 help to bring down tar yields as well, don't they?
Page 44
01 A. By the machine they do.
02 Q. Okay.
03 A. Not by the smoker if the smoker takes more puffs.
04 Q. Depends on what the smoker actually does I guess,
05 is that right? More porous paper. Porous paper means paper
06 that has holes in it, right?
07 A. Sort of, not like the ventilated filter holes but
08 porous just means that it's easier for gases to move through
09 the paper. So it has holes but not the holes punched in.
10 They are manufactured differently.
11 Q. But the porous paper allows some gases to leave the
12 cigarette as it's being smoked, is that right?
13 A. And come into the cigarette too.
14 Q. Okay. And then it also notes longer filter over-
15 wraps which causes the smoking machine to take fewer puffs
16 per cigarette. You talked to us about that this morning, is
17 that right?
18 A. Yes.
19 Q. And ventilated filters that allow dilution of the
20 tobacco smoke with air. You talked about that this morning
21 as well?
22 A. Yes.
23 Q. Go to the next one, Jamail.
24 And then you give the conclusion, the same
Page 45
01 conclusion back in 1989 that you gave to us this morning, Dr.
02 Benowitz, is that right, thus the low?yield cigarette is not
03 low in yield because it contains less of anything but because
04 it is engineered to make less smoke available to the smoker
05 or at least to the smoking machine, is that right?
06 A. Yes.
07 Q. You are making the identical point back in 1989
08 that you made this morning, is that right?
09 A. Yes.
10 Q. And you go on in the article right here to talk
11 about the fact that smokers don't smoke the way the machines
12 do and they tend to compensate, is that right?
13 A. Yes.
14 Q. You talk about the various mechanisms of
15 compensation like more frequent puffs or inhaling more deeply
16 or occluding the ventilation holes with lips or fingers,
17 smoking more cigarettes, right?
18 A. Yes.
19 Q. Then you point out if they do that, if smokers do
20 that then people take in, those smokers take in considerably
21 more tar and nicotine and carbon monoxide than would be
22 predicted by smoking machines, correct?
23 A. Yes.
24 Q. So you were aware of compensation back in 1989 when
Page 46
01 you wrote this editorial, is that right?
02 A. Yes.
03 Q. You are also aware of the epidemiology if we can go
04 to the next one.
05 Epidemiologic data ?? I am quoting here ?? indicate that
06 low?yield cigarettes are less hazardous than high?yield
07 cigarettes with respect to lung, laryngeal, esophageal, and
08 other cancers and possibly chronic obstructive lung disease,
09 is that right?
10 A. But again you need to understand as stated in the
11 next sentence that this low?yield refers to non?filtered
12 versus filtered.
13 Q. Same point you have been making, right, Dr.
14 Benowitz, and at this point in 1989 that was still the best
15 evidence that you had available to you concerning the
16 epidemiology of low?tar cigarettes, is that right?
17 A. Right.
18 Q. And in fact in 1989 the Surgeon General once again
19 said that low?tar cigarettes appeared to have health benefits
20 if you looked at it from an epidemiological basis. Is that
21 right?
22 A. Right, but I think it's just as important for the
23 Court to understand that Marlboro regulars would be called a
24 low?yield cigarette by this criteria.
Page 47
01 Q. That's because all the tar yields of cigarettes had
02 come way down since the 1950's, is that right?
03 A. Yes.
04 Q. Do you know what Marlboro was in the 1950's?
05 A. Not specifically. I know that many cigarettes were
06 30, 35 milligram tar and 2 milligram nicotine.
07 Q. And wouldn't surprise you if Marlboro was in that
08 range?
09 A. No.
10 Q. And you didn't consider it a bad thing in the '70's
11 and '80's when Philip Morris brought down the level of
12 Marlboro regulars much lower than 30 and 35?
13 A. That's correct.
14 Q. In fact you encouraged that. You thought that was
15 a good thing?
16 A. Yes.
17 Q. Can you go to the next one, Jamail. I think we
18 need to catch the bottom. I will read it. The bottom of
19 that column before says: Studies indicate that ?? and we
20 pick ?? the risk of lung cancer is reduced substantially and
21 I think that says by up to 40 percent in smokers of the old
22 style ?? can you help me with that word, Doctor? Can you
23 make that out? Lowered tar compared with the old style high-
24 yield cigarette. Does that sound right?
Page 48
01 A. What would make sense is old style unfiltered
02 compared to ??
03 Q. That's fine.
04 A. I don't know. I can't read it.
19 Q. (Mr. Lombardi) That risk is so markedly higher
20 than the risk in non?smokers and that's something that was a
21 constant theme on your part and on the part of other members
22 of the public health community was any benefit you get from a
23 low?yield cigarette is tiny compared to the benefit of
24 quitting, correct?
Page 49
01 A. Yes.
02 Q. That's what you are saying there, is that right?
03 A. Yes.
04 Q. And you are also pointing out that the epidemiology
05 that was available at the time, the best epidemiology
06 available at the time was showing decline with low?yield
07 cigarettes, is that right?
08 A. Yes.
09 Q. Let's go to the next one.
10 On balance the movement toward low?yield cigarettes has
11 been worthwhile although in reducing the risk of disease it
12 may have reached the limit. That's what you wrote in 1989,
13 is that right, Dr. Benowitz?
14 A. Yes.
15 Q. And you believed it at the time you wrote it?
16 A. Yes.
17 Q. It was based on the best evidence ?? scientific
18 evidence that you had available to you at that time, is that
19 right?
20 A. Yes.
21 Q. And you wrote this in this Journal knowing that
22 other people would rely on what you were saying in this
23 Journal, is that right?
24 A. Yes.
Page 50
01 Q. So you tried to make it as accurate as you possibly
02 could, is that right?
03 A. Yes.
04 Q. Let's go to the bottom of the page. And you of
05 course again reminded physicians that there should be a
06 message that low?yield cigarettes are not safe cigarettes, is
07 that right?
08 A. Yes.
09 Q. And that was another constant theme on your part.
10 There was no such thing as a safe cigarette, is that right?
11 A. That's correct.
12 Q. And the only way ?? the only reliable way to reduce
13 the adverse health consequences of smoking is to stop, right?
14 A. Yes.
15 Q. And then you go on to the top of the next page:
16 From the perspective of public health, however, the movement
17 toward low?yield cigarettes makes sense, is that right?
18 A. Yes.
19 Q. That's what you were saying back in 1989, is that
20 right?
21 A. Right, but again what makes sense was the movement
22 from very high?yield cigarettes to what was currently the
23 modern cigarette at that time, and the issue is really not
24 allowing yields to rise back up to what they used to be.
Page 51
01 Q. We are coming to that. You actually specific talk
02 about that later in this paragraph I think, Dr. Benowitz, but
03 at this point however you thought in 1989 that the movement
04 toward low?yield cigarettes made sense, is that right?
05 A. Yes.
06 Q. As a public health matter, correct?
07 A. Yes.
08 Q. And again your thought at that time you were
09 motivated by just the benefits to the public, is that right?
10 A. Yes.
11 Q. And you in good faith made the recommendations that
12 you made, is that right?
13 A. Yes.
14 Q. Let's go to the next one, Jamail. You say: Public
15 health policy should encourage smokers who have not yet quit
16 to smoke cigarettes with the lowest possible yield. That was
17 your advice at that time?
18 A. Yes.
19 Q. And then you said and I think this is what you were
20 referring to before, Dr. Benowitz, the yields of American
21 cigarettes should not be allowed to drift higher as research
22 finds that low?yield cigarettes are not less hazardous. Do
23 you see that?
24 A. Yes.
Page 52
01 Q. You didn't want ?? whatever happened with the
02 epidemiology you didn't want these cigarettes to go back to
03 the old days, is that right?
04 A. That's correct.
05 Q. You did not want people to smoke 30 milligram tar
06 cigarettes?
07 A. That's correct.
08 Q. That would not have been in the public interest?
09 A. That was my opinion then, yes.
10 Q. And then we will just read this for completeness.
11 It says ?? you talk about mandated ceilings for tar, carbon
12 monoxide, and other toxic components of tobacco smoke that
13 could be lowered gradually over the years, or a progressive
14 tax on higher?yield cigarettes as logical ways to implement
15 such goals, is that right?
16 A. Yes.
17 Q. You are talking about some other actions the
18 Government can take relating to tar, and when you say
19 mandated ceilings for tar you mean tar as measured under the
20 FTC test, is that right?
21 A. That's what I said then. That was ?? to redo this
22 I would modify it, but that's what I said then.
23 Q. What I am worried about now is what you said then
24 and what you said then you said in good faith, is that right?
Page 53
01 A. Yes.
02 Q. And relying on the best scientific information that
03 you had, is that right?
04 A. Yes.
05 Q. So this is 1989 and I am just going to write
06 editorial.
07 And after that, Dr. Benowitz, after that 1989 editorial
08 your interest in tobacco issues continued, is that right?
09 A. Yes.
10 Q. And you continued to write articles and some
11 editorials too, is that right?
12 A. Yes.
13 Q. On various issues relating to tobacco, is that
14 right?
15 A. Yes.
16 Q. And one of the things that became involved in which
17 I believe you referred to this morning was a ?? I never know
18 whether they call it a conference or symposium involving the
19 FTC method. Which is the right word, Doctor?
20 A. It was a conference. It was sponsored by the
21 National Cancer Institute.
22 Q. This is in about 1994?
23 A. Yes.
24 Q. And this was a conference where the National Cancer
Page 54
01 Institute brought in various experts to look at various
02 aspects of the FTC method, is that right?
03 A. Yes.
04 Q. And what they were doing was trying to get some
05 recommendations about what to do about the FTC method?
06 A. That's correct.
07 Q. Whether to continue with it, to change it, to
08 abolish it, all those type of things, is that right?
09 A. That's right.
10 Q. And you were one of the scientists that
11 participated in that event, is that right?
12 A. I was, yes.
13 Q. And there was ?? actually what was it, two days of
14 discussions and presentations in 1994?
15 A. Yes.
16 Q. And then a publication came out in 1996 to
17 memorialize what had happened at the meeting, is that right?
18 A. Yes.
19 Q. And you had a chapter in that publication, is that
20 right?
21 A. Yes.
22 Q. And your chapter was fittingly on biomarkers of
23 cigarette smoking?
24 A. Yes.
Page 55
01 Q. Now, Judge, we have already ?? Chapter Seven has
02 already been handed up. I can ?? I don't know what the Court
03 wants. This was passed up to you yesterday. I can hand you
04 another copy if that's helpful.
05 THE COURT: Not necessary.
06 MR. LOMBARDI: You have your own copy.
07 Q. Dr. Benowitz, if you want to look along this way
08 you can. I am going to be showing your chapter is at page
09 93.
10 Have you found that, Dr. Benowitz?
11 A. Yes, I have.
12 Q. And that's chapter seven. You are the sole author
13 and it's called "Biomarkers of Cigarette Smoking". Is that
14 right?
15 A. Yes.
16 Q. And in that chapter you talk about ?? some of the
17 topics you talk about include cotinine and biomarker studies
18 generally to determine the amount of nicotine that a person
19 gets when they smoke, is that right?
20 A. Yes, and other toxins as well although the main
21 focus was nicotine.
22 Q. And you went through some studies that had been
23 done up to that time, is that right?
24 A. Yes.
Page 56
01 Q. And let's go to 4365.125 where you have your
02 conclusions. Incidentally you talk about part of this
03 article this morning, is that right?
04 A. I did.
05 Q. And we get to the conclusions and you basically
06 conclude that you don't believe at this time that there is a
07 meaningful quantitative relationship between the FTC yields
08 and actual intake by a smoker ?? I am sorry, Doctor, it's
09 page 106 if you are looking for the reference.
10 A. Okay.
11 Q. Do you have that?
12 A. Yes.
13 Q. And you ?? based on your work you don't think there
14 is a meaningful connection, quantitative relationship between
15 FTC yields and actual intake at this point in time, is that
16 right?
17 A. Yes.
18 Q. But you do go on to say in that next sentence:
19 There do appear to be differences in nicotine exposure
20 comparing high? vs. low?yield ?? go to the next one, Jamail,
21 cigarettes but the differences are small and not
22 quantitatively proportional to nominal yield? Do you see
23 that?
24 A. Right. And those differences are really driven by
Page 57
01 the ultra low?yield cigarettes.
02 Q. That's not what you said in this sentence though,
03 is that right?
04 A. That's correct.
05 Q. And you say ?? and when you talk in this sentence
06 about not being quantitatively proportional to nominal yields
07 when you talk about nominal yields you are talking about the
08 FTC test method results, is that right?
09 A. Yes.
10 Q. You are saying that the amount it appears that the
11 smoker actually gets is not quantitatively proportional to
12 what the FTC yield shows?
13 A. That's correct.
14 Q. But you are noting that there is a relationship
15 there, is that right?
16 A. Well, that's what it says, but you can see from my
17 own data and other data in this chapter that relationship is
18 really driven by the very low?yield cigarettes.
19 Q. That's fine, Doctor, but what you are saying here
20 is that there is a relationship -- I think you call it a
21 shallow relationship, is that right?
22 A. Yes.
23 Q. And a shallow relationship means there is a
24 relationship between how high a cigarette measures on the FTC
Page 58
01 test and how much a smoker gets from that cigarette, but it's
02 a shallow relationship, is that right?
03 A. Right.
04 Q. A weak relationship is another way of saying that?
05 A. There is not much of a difference from one level to
06 the next.
07 Q. Where you can say it's correlated but it's weakly
08 correlated, the FTC tar levels and the intake of an
09 individual smoker, correct?
10 A. Not the same. The slope is not the same as the
11 degree of correlation. You could have perfect correlation
12 but a very shallow slope. A shallow slope means when you go
13 from one level to the next there is not much change in
14 exposure. There is a little but not much.
15 Q. All right. Let's then look at the last sentence of
16 your conclusion: On the other hand, because there is some
17 relationship between yields and ?? that means under the FTC
18 test, right?
19 A. Yes.
20 Q. And nicotine, and that means the nicotine that a
21 smoker gets, right?
22 A. Yes.
23 Q. And although the slope of that relationship is
24 shallow it is not recommended that smokers regress to smoking
Page 59
01 higher yield cigarettes, is that right?
02 A. Yes.
03 Q. And you refer to that I think when we were reading
04 your editorial from 1989, is that right?
05 A. Yes.
06 Q. It's the same thought you don't want people to go
07 back to smoking unfiltered cigarettes from the 1950's that
08 have tar yields over 30 milligrams, is that right?
09 A. Yes.
10 Q. Now, the Monograph also considered ?? I should
11 strike the question.
12 When we say the Monograph, Dr. Benowitz, in this
13 case I am talking about Monograph Number 7 which is the one
14 from 1996, correct?
15 A. Yes.
16 Q. This symposium or conference also considered the
17 health effects of low?tar cigarettes, is that right?
18 A. Yes.
19 Q. Your chapter was concerned with how close the FTC
20 measurement is to what a smoker actually gets, but there was
21 another chapter that dealt with the health effects, is that
22 right?
23 A. Yes.
24 Q. And that chapter specifically dealt with
Page 60
01 epidemiology, is that right?
02 A. Yes.
03 Q. And epidemiology you consider the only way we
04 really have to measure the health effects of changes in
05 cigarettes on human beings, is that right?
06 A. The only direct way.
07 Q. I am sorry?
08 A. The only direct way.
09 Q. Thank you. And the person who wrote the chapter on
10 epidemiology was someone named Jonathan Samet, is that right?
11 A. Yes.
12 Q. His chapter is Chapter 6 at page 77 if you can find
13 that.
14 A. Okay.
15 Q. And Dr. Samet is an epidemiologist, is that right?
16 A. He is.
17 Q. Dr. Samet considered the best epidemiology evidence
18 that was available as of the time of this Monograph 1996, is
19 that right?
20 A. Yes.
21 Q. And he considered that epidemiology and tried to
22 come to some conclusions as to whether low?yield cigarettes
23 were in fact safer or weren't safer based on the epidemiology
24 that was out there, is that right?
Page 61
01 A. Yes.
02 Q. And what was important about what Dr. Samet did
03 with the epidemiology is he recognized that epidemiology can
04 take into account changes in the cigarette, is that right?
05 A. I am not sure what you mean by the question.
06 Q. Let's look at the bottom of that first page of the
07 chapter. Dr. Samet says: Only epidemiologic studies can
08 provide information on modification of the risks of smoking
09 as the cigarette has evolved.
10 Do you see that?
11 A. Yes.
12 Q. You understand that to mean that only
13 epidemiological data can evaluate the changes in the
14 cigarette and find out whether those changes are resulting in
15 reduced risk or not?
16 A. Yes.
17 Q. And you agreed with this at the time, is that
18 right?
19 A. Yes.
20 Q. Okay. And then he goes on to say: And only
21 epidemiologic data can measure the risks of cigarettes under
22 the "natural" circumstances of use.
23 Do you see that?
24 A. Yes.
Page 62
01 Q. And when he put "natural" in quotes, what he is
02 referring to there is only epidemiological data can determine
03 how the cigarette affects the health of smokers even given
04 compensatory smoking, is that right?
05 A. Yes, that will conclude that.
06 Q. When we say "natural circumstances of use", he is
07 talking about as smokers actually use the cigarette, is that
08 right?
09 A. Yes.
10 Q. So if somebody ?? if say we have a hundred percent
11 compensation on the part of all smokers who switched down,
12 that's something that the epidemiological data would capture,
13 is that right?
14 A. It could, yes.
15 Q. Well, that's at least what Dr. Samet is saying
16 here, is that right?
17 A. Yes.
18 Q. Then let's go to the next page.
19 He says: Epidemiologic research has had a central
20 role in characterizing the consequences of the changing
21 cigarette because it supplies direct information on the
22 consequences of varying tar and nicotine yield products.
23 Do you see that?
24 A. Yes.
Page 63
01 Q. Again he is saying that this is the way ?? the
02 epidemiological data is the way that you can determine
03 whether these changes in the cigarette are having a
04 beneficial health effect, is that right?
05 A. Yes.
06 Q. Then he goes: Thus the findings inherently
07 consider compensatory changes in inhalation patterns or in
08 numbers of cigarettes smoked and provide the evidence needed
09 to answer the question of immediate public health relevance,
10 whether disease risk varies with cigarette tar and nicotine
11 yield as determined by the FTC method.
12 Do you see that?
13 A. Yes.
14 Q. What he was saying there is that you can determine
15 ?? you can determine whether compensation is eliminating the
16 benefits of the low yield cigarette through the epidemiology,
17 is that right?
18 A. Yes.
19 Q. And Dr. Samet was looking at the best studies that
20 he had available to him and that were available to anybody in
21 1996, is that right?
22 A. Yes.
23 Q. And if we turn to page 80, Doctor, which is ??
24 there is a reference where he specifically considers lung
Page 64
01 cancer, is that right?
02 A. Yes.
03 Q. And he says ?? he is talking about something called
04 CPS?1. You have heard of that?
05 A. Yes.
06 Q. That is a specific study that was sponsored by the
07 American Cancer Society, is that right?
08 A. Yes.
09 Q. And he says that: Mortality was examined by three
10 categories of tar intake ? high, medium and low. For all
11 causes of mortality and for lung cancer mortality, the
12 standardized mortality ratios declined as estimated tar or
13 nicotine intake declined.
14 Is that right?
15 A. Yes.
16 Q. So CPS?1 at least is showing that as the tar yield
17 measured by the FTC machine went down mortality ratios went
18 down as well, is that right?
19 A. Yes, although again I need to remind you that CPS?1
20 was basically looking at roll style non?filtered cigarettes
21 versus people who were smoking filters.
22 Q. That's fine. I appreciate the clarification, but
23 it's also the case that this was the best evidence that was
24 available at the time Dr. Samet was writing, is that right?
Page 65
01 A. Yes.
02 Q. You are not criticizing him for talking about CPS?1
03 because it was the best that was available at the time?
04 A. That's correct.
05 Q. And that's because of the latency period that we
06 talked about before, is that right?
07 A. Yes.
08 Q. Okay. And he talks about some other studies as
09 well and go to the next one please: Wynder and colleagues at
10 the American Health Foundation have conducted an ongoing
11 case?control study of smoking and lung cancer that provides
12 information on cigarette type and lung cancer risk over
13 decades since the 1950's.
14 Go to the results of that study: For smokers of filter
15 cigarettes only risks were approximately 10 to 30 percent
16 less than those of smokers of non?filters only.
17 Do you see that?
18 A. Yes.
19 Q. Again that is an accurate statement of the American
20 Health Foundation study that Dr. Samet was relying on at the
21 time, is that right?
22 A. Yes.
23 Q. Go to the next one please. This is another study
24 that he refers to, a Lubin study. You know who ?? is it Dr.
Page 66
01 Lubin, Dr. Benowitz?
02 A. Yes, I don't know Dr. Lubin personally.
03 Q. You have heard his name I take it?
04 A Yes.
05 Q. He concludes in this study: Risk for lung cancer
06 increased progressively in both males and females as the
07 proportion of filter use declined from one hundred percent.
08 Do you see that?
09 A. Yes.
10 Q. That's another indication the epidemiology is
11 showing a benefit to the declining tar yields, is that right?
12 A. Or the use of filters.
13 Q. Well, the tar yields were in part due to the use of
14 filters, is that right?
15 A. Right. But the question comes up is it because of
16 the tar yield or is it because of the change in the nature of
17 the tar, some more carcinogenic compounds might be filtered
18 out. There is debate about it.
19 Q. Let's go to the next one.
20 The last paragraph where Dr. Samet talks about lung
21 cancer, he says: Temporal patterns of lung cancer rates also
22 have been interpreted as indicating lower lung cancer risks
23 among smokers of lower tar and nicotine cigarettes. It has
24 been suggested that the recent decline in lung cancer
Page 67
01 mortality rates among younger males may reflect changes in
02 the cigarette. This downturn has been observed in the United
03 States and other countries.
04 Do you see that?
05 A. Yes.
06 Q. Again those are studies that reflected the best
07 state of knowledge at this time 1996 concerning the
08 epidemiology of low-tar cigarettes, is that right?
09 A. Yes.
10 Q. And then let's go to the conclusion, and what Dr.
11 Samet does here, Dr. Benowitz, is he refers back to the 1981
12 Surgeon General Report, correct?
13 A. Yes.
14 Q. And we talked ?? you talked before about the 1981
15 Surgeon General Report and correct me if I am wrong please.
16 I think you said something to the effect that based on that
17 report you thought that lowering tar yields had maybe reduced
18 by as much as 40 percent, is that right?
19 A. Filtering cigarettes, yes.
20 Q. And so what Dr. Samet does is he repeats the
21 conclusion from that Surgeon General Report and that's the
22 block quote there. Do you see that?
23 A. Yes.
24 Q. So in 1981 the Surgeon General wrote: Today's
Page 68
01 filter?tipped, lower tar and nicotine cigarettes produce
02 lower rates of lung cancer than do their higher tar and
03 nicotine predecessors. Nonetheless, smokers of lower tar and
04 nicotine cigarettes have much higher lung cancer incidence
05 and mortality than do nonsmokers.
06 Do you see that?
07 A. Yes.
08 Q. That was the conclusion that you relied on back in
09 1981 and then what Dr. Samet does is update that conclusion,
10 is that right?
11 MR. BRICKMAN: Object, your Honor, it's a compound
12 question.
13 THE COURT: Break it up.
14 Q. (Mr. Lombardi) Okay. Dr. Samet then goes on to
15 consider whether that conclusion in 1981 is appropriate in
16 1996 when he is writing this article, is that right?
17 A. Yes.
18 Q. And what he says is the more recent case control
19 evidence remains consistent with the first component of this
20 conclusion, is that right?
21 A. Yes.
22 Q. And that was the conclusion that lower tar and
23 nicotine cigarettes produced lower rates of lung cancer than
24 do their higher tar and nicotine predecessors, correct?
Page 69
01 A. Right, but I should point out that in question and
02 answer on page 88 I asked him the question about whether he
03 thought this was related to reduction of tar yields or due to
04 the filtration. And he says ?? the answer to that question
05 is: I do not know.
06 Q. Right.
07 A. So there is still question here about what was
08 going on, and again the only data with filter versus
09 non?filter and we don't even know if it was the tar exposure
10 or the nature of the tar because of the filter.
11 Q. But this was the best data that was available at
12 this time 1996, is that right, Dr. Benowitz?
13 A. Right.
14 Q. You don't question that Dr. Samet found the very
15 most up to date epidemiological evidence in 1996 to study and
16 report on in his Monograph chapter, is that right?
17 A. But again it's not relevant to modern cigarettes.
18 It really is relevant to non?filter versus filter cigarettes.
19 Q. But the best information that was available?
20 A. Yes.
21 Q. And then the Monograph also makes some
22 recommendations, is that right, starting at the end. It's
23 page 239, Doctor. It's where that section begins.
24 A. Okay.
Page 70
01 Q. Let me know when you have it.
02 A. I have it.
03 Q. And if you look down at the first conclusion that
04 the Committee came to and the Committee refers to this group
05 of scientists that was studying the FTC method and low-tar
06 cigarettes and epidemiology, right?
07 A. Yes.
08 Q. Says: The smoking of cigarettes with lower
09 machine?measured yields has a small effect in reducing the
10 risk of cancer caused by smoking, no effect on the risk of
11 cardiovascular diseases, and an uncertain effect on the risk
12 of pulmonary disease.
13 Do you see that?
14 A. Yes.
15 Q. And that was the conclusion that was arrived at in
16 Monograph 7 that was published in 1996, is that right?
17 A. Right.
18 Q. And again based on having been there, Dr. Benowitz,
19 and having seen the people that actually participated in this
20 particular Monograph and this symposium ?? I think you called
21 it a meeting? I have forgotten.
22 THE COURT: Conference.
23 Q. In this particular Conference there is no doubt in
24 your mind that the people who participated were acting on the
Page 71
01 best information that was available, is that right?
02 A. Yes.
03 Q. And were in good faith trying to do the right thing
04 for the public health, is that right?
05 A. Yes.
06 Q. And didn't intend to deceive anybody at least as
07 far as you could tell, is that right?
08 A. That's correct.
09 Q. And certainly true as far as you personally is
10 concerned?
11 A. Yes.
12 Q. Now there was a question and answer period after ?-
13 as part of the meeting that took place in 1994, is that
14 right?
15 A. Yes.
16 Q. Where there were discussions of certain topics, is
17 that right?
18 A. Yes.
19 Q. And you participated in that discussion?
20 A. Yes.
21 Q. And you have had a chance to look at what has been
22 printed in the Monograph ?? strike the question. The
23 Monograph printed a transcript of these discussions, is that
24 right?
Page 72
01 A. Yes.
02 Q. And you are quoted at various times in that
03 transcript, is that right?
04 A. Yes.
05 Q. Okay. And if you could look at page 214 please.
06 Down at the bottom of the page is the quote I am looking at
07 specifically right now, Dr. Benowitz. That's attributed to
08 you, is that right?
09 A. Yes.
10 Q. And why don't we just go ahead and read what's on
11 that page and then we will go to the next.
12 Doctor Benowitz: I think it would be great if we could
13 put something in about health risks. I think the data seem
14 very clear that smoking any cigarette is so much greater
15 risk than smoking none that it will be impossible to
16 quantitate it, and I think that should be communicated.
17 So you are talking about government warnings there
18 essentially, is that right?
19 A. Yes.
20 Q. But at the same time, even if there is a small
21 difference in exposure from high? to low?yield cigarettes, if
22 you are talking about a huge population of smokers, it is
23 worthwhile to encourage as many possible to get as low a
24 yield as possible, even though it is not going to have nearly
Page 73
01 the effect of stopping smoking. It is still of some benefit.
02 So I think we should warn people that switching to low?yield
03 cigarettes is not going to remove the risk of smoking, but
04 still try to encourage that somehow people do that.
05 Do you see that?
06 A. Yes.
07 Q. That is what you said at the Conference in 1994, is
08 that right?
09 A. Right, but what I am saying here is that if there
10 is a small difference in exposure and that's the question
11 about whether there is, the only evidence of reduced exposure
12 comes from very low?yield cigarettes. And if you could force
13 the yield down at some point I think exposure would be
14 reduced. The question is, where does that occur? So the
15 concept I think is still correct. You should try to force
16 them down, but in the range of cigarettes that we have been
17 talking about there is really no exposure reduction. It's
18 not until you get below that that there is a reduction.
19 Q. Again your comments at this time were made with the
20 best scientific evidence you could get your hands on at that
21 time 1996, is that right?
22 A. Yes.
23 Q. And you said, I think we should warn people that
24 switching to low?yield cigarettes is not going to remove the
Page 74
01 risk of smoking but still try to encourage that somehow
02 people do that, is that right?
03 A. Yes.
04 Q. You don't want people to go back to smoking the
05 high?yield cigarettes of the 1950's, is that right?
06 A. That's correct.
07 Q. Now you also talked about the FTC method at this
08 Conference, is that right, Dr. Benowitz?
09 A. Yes.
10 Q. And you had some thoughts on the benefits of the
11 FTC test method at the Conference, is that right?
12 A. I forget.
13 Q. Page 232. You thought, didn't you, Dr. Benowitz,
14 that the FTC test method had the beneficial effect of molding
15 the conduct of the tobacco companies, is that right?
16 A. Well, that's what I mentioned before that to keep
17 the tar levels from creeping back up the other way.
18 Q. And you thought by having that FTC test method out
19 there it was a form of encouragement for the tobacco
20 companies to bring tar levels down, is that right?
21 A. Yes.
22 Q. You thought it was a good thing they brought them
23 down under the FTC test method results, is that right?
24 A. Yes.
Page 75
01 Q. What you said was, quote: I think there is a
02 second function that the FTC testing does perform, and that
03 is to mold what the tobacco companies provide. I do think
04 that there has been a reduction in lung cancer if you compare
05 1950's cigarettes to modern cigarettes.
06 That's what you testified to today, is that right,
07 Dr. Benowitz?
08 A. Well, that's what the data look like at this point
09 in time.
10 Q. That's right. That's all I can ask you about. In
11 1996 that's what the data looked like?
12 A. Yes.
13 Q. And I would not want to lose that pressure to keep
14 yields as low as possible.
15 There you are referring to the pressure the FTC
16 method creates on the tobacco companies to get the yields as
17 low as possible?
18 A. Yes.
19 Q. When you say yields there you are talking about
20 yields under the FTC test method?
21 A. Yes.
22 Q. I think whatever we do, we do not want to lose that
23 by saying it does not matter at all. The other argument is
24 if there is 10?percent reduction of health hazard, which
Page 76
01 would be very difficult to measure by epidemiological means,
02 if you are applying it to about 40 million smokers that could
03 be substantial.
04 You still agree with that concept today, don't you?
05 A. Yes.
06 Q. And I would not want to lose that for the
07 population either.
08 Is that correct?
09 A. Correct.
10 Q. That's what you said back in 1996 based on the
11 best scientific evidence you had concerning the health
12 effects of low?yield cigarettes, is that right?
13 A. Yes.
14 Q. And you believed it then, is that right?
15 A. Yes.
16 Q. It was not your intention to deceive anybody when
17 you said that, is that right?
18 A. That's correct.
19 Q. And that was your honest and accurate view of the
20 situation, is that right?
21 A. Yes.
22 Q. So that was 1994. I will put Number 7 for
23 Monograph Number 7 and then 1996 is when it actually came
24 out, is that right?
Page 77
01 A. Yes.
02 Q. And, Dr. Benowitz, you testified ?? you have
03 testified a lot in Court in recent years, is that right?
04 A. Yes.
05 Q. Up until at least 1999 you were testifying ?? still
06 testifying that people who wouldn't quit should move to
07 lower?yield cigarettes, is that right?
08 A. Probably. I don't recall the specific dates.
09 Q. Do you remember the iron workers case in 1999?
10 A. Yes.
11 Q. That was a case in Akron, Ohio?
12 A. Yes.
13 Q. In that case did you tell the jury that people who
14 wouldn't quit should be encouraged to move to lower?yield
15 cigarettes?
07 Q. (Mr. Lombardi) Did you get a chance to look at
08 that?
09 A. Yes.
10 Q. Does that ?? and do you see the iron workers trial,
11 was -- this was on March 1st, 1999?
12 A. Yes.
13 Q. And at the iron workers trial does that refresh
14 your recollection that you testified that smokers who did not
15 or would not quit would be well?advised to smoke lower yield
16 cigarettes?
17 A. Yes.
08 Q. I can't remember whether you answered, Doctor.
09 1999, March 1st, 1999 were you testifying that people who
10 wouldn't quit should shift to low?yield cigarettes?
11 A. Yes. I also qualify that by suggesting that the
12 tobacco manufacturers provide information to the smokers
13 about issues like compensation and blocking ventilation holes
14 and things like that. I did talk more about than just what
15 you said.
16 Q. That's fair. What you were saying was that people
17 should shift to lower?yield cigarettes but you want there to
18 be more warnings accompanying the lower yield cigarettes, is
19 that right?
20 MR. BRICKMAN: Objection, that's a mischaracterization.
21 THE COURT: Sustained. I think he is elaborating on
22 what he said. You may go on to another question.
23 Q. Now, Doctor, since 1999 you have had a change in
24 your views, is that right?
Page 80
01 MR. BRICKMAN: Objection, your Honor. That's a rather
02 vague question, change of view as to what?
03 MR. LOMBARDI: That's fine.
04 THE COURT: That's fair. Why don't you try to ??
05 Q. (Mr. Lombardi) Let me ask today, Dr. Benowitz, do
06 you still advise people who won't quit to smoke low?yield
07 cigarettes?
08 A. Well, I have never really advised my own patients
09 to smoke low?yield cigarettes but the Monograph 13 suggests
10 that except maybe for the ultra low?yield cigarettes there is
11 no evidence that it makes much of a difference. If I could
12 get someone who couldn't quit to switch to ultra low-yield
13 cigarettes I would probably still encourage that because we
14 do have evidence of reduced exposure but within the range of
15 cigarettes above that there doesn't seem to be any difference
16 in consequence.
17 I am still not comfortable having people switch
18 back to unfiltered 35 milligram tar cigarettes but we don't
19 have much evidence that it makes a difference in terms of
20 what cigarette smoke versus risk so I think even more so than
21 ever the emphasis has to be on getting people to stop.
22 Q. Just to make sure if I am clear, I might have lost
23 you in the middle of your answer, Dr. Benowitz. Assume you
24 have somebody that won't stop, would you tell them it's
Page 81
01 better to smoke a low-yield cigarette today?
02 A. I think the ?? what I would do is put my main
03 emphasis on trying to get the person to quit smoking. The
04 low-yield cigarettes -- if they could switch to ultra low may
05 be worthwhile but again to be ?? to dilute the message. It
06 gives them sort of another alternative of quitting, a hope
07 that they can smoke other cigarettes. And since very few
08 people ever find the ultra?low satisfying I think I would
09 really focus my effort on getting them to quit.
10 Q. Let me ask you about a hypothetical situation, sir.
11 If you had a person, just whatever you said, would not quit.
12 They just wouldn't do it and you became aware of that and
13 knew you couldn't persuade them not to quit, would you advise
14 them rather than say smoke say 16 milligram cigarette they
15 should smoke a 11 gram cigarette?
16 A. I don't think it would make any difference. I
17 don't think I would advise that. If they could somehow
18 switch to a one milligram cigarette then that might have some
19 hope of making a difference, but from 16 to 11, I don't think
20 that would make any difference at all.
21 Q. Part of your conclusion is based on the work that
22 was done in Monograph 13, is that right?
23 A. And my own research over the years. Monograph 13
24 puts it together. My own research over the years suggests
Page 82
01 there is very little difference if any in exposure comparing
02 16 to 11 milligrams.
03 Q. And actually your conclusions ?? you wrote a
04 chapter in the Monograph, correct?
05 A. Yes.
06 Q. And you don't ?? the conclusions you reach in the
07 Monograph on compensation really are no different from the
08 conclusions that you had reached before, is that right?
09 MR. BRICKMAN: Objection. There were a number of
10 conclusions.
11 THE COURT: Which ones?
12 MR. LOMBARDI: I am sorry, related to compensation. Dr.
13 Benowitz, you didn't come to any new conclusions about
14 compensation in the Monograph, is that right?
15 A. No, I reviewed some additional studies which I
16 think make the conclusion even stronger but they are
17 basically the same as in the 1996 Monograph 7.
18 Q. And really what your view of what's new in
19 Monograph 13 is the chapter concerning epidemiology, is that
20 right?
21 A. Yes.
22 Q. And that's a chapter that was written by Dr. David
23 Burns among others, is that right?
24 A. Yes.
Page 83
01 Q. So the Monograph 13 was published 2001, is that
02 right?
03 A. Yes.
04 Q. And that was November of 2001. Do you remember
05 that?
06 A. Yes.
07 Q. Do you know when the class period runs in this
08 case?
09 A. I don't.
10 Q. Do you know whether the Monograph 13 came out after
11 the class period had run?
12 A. I do not.
13 Q. Okay. Let me ask you a little bit about Monograph
14 13. Monograph 13 again has a number of authors, is that
15 right?
16 A. Yes.
17 Q. And these authors, many of them are people that are
18 familiar to you, is that right?
19 A. Yes.
20 Q. And Monograph 13 was for the most part prepared by
21 people who testify in case again the tobacco industry, is
22 that right?
23 A. Many authors were. I don't know if for the most
24 part I didn't really count them up but many authors have.
Page 84
01 Q. Let's ?? I will get you a copy of Monograph 13.
02 MR. LOMBARDI: This actually is a Plaintiff's Exhibit.
03 Do you know your number for Monograph 13?
04 MR. BRICKMAN: I really don't. Is it 14?
05 MR. LOMBARDI: Exhibit 14.
06 Q. Here you go, Dr. Benowitz. That's an extra copy.
07 And if you turn to the acknowledgment at page iii, Roman iii,
08 this list ?? this starts a list of the authors and reviewers,
09 is that right?
10 THE COURT: You say you are saying 3 or iii.
11 MR. LOMBARDI: It's iii. It's headed Acknowledgements,
12 your Honor.
13 Q. It starts at iii. It has ?? it starts with Chapter
14 1, do you see that?
15 A. Yes.
16 Q. The Overview and Summary are written by Dr. Burns
17 and yourself?
18 A. Yes.
19 Q. Dr. Burns you know has for years testified against
20 the tobacco industry in trials, is that right?
21 A. Yes.
22 Q. And he had been doing that well before the
23 Monograph was written, is that right?
24 A. Yes.
Page 85
01 Q. And, Dr. Benowitz, you obviously have testified
02 against the tobacco companies for years, is that right?
03 A. Yes.
04 Q. Let's go to the next page for Chapter 2. Lynn
05 Kozlowski there at the top. That is another individual who
06 has testified against the tobacco companies in trials, is
07 that right?
08 A. I don't know.
09 Q. You know Lynn Kozlowski?
10 A. Yes.
11 Q. You know he has written extensively on tobacco
12 issues?
13 A. Yes.
14 Q. You are not aware of whether he testifies or not?
15 A. That's correct.
16 Q. Chapter 3 is you again?
17 A. Yes.
18 Q. Let's to go Chapter 4. That's Dr. Burns again?
19 A. Yes.
20 Q. Then there are other authors of Chapter 4 over on
21 the next page, Michael Thun, T?H?U?N. Do you see that?
22 A. Yes.
23 Q. He is somebody who has testified against the
24 tobacco industry, is that right?
Page 86
01 A. I didn't know that. I have heard that he is
02 testifying here, but I did not know what he had done before.
03 Q. Chapter 5, Dietrich Hoffmann. He is somebody who
04 has testified against the tobacco industry, is that right?
05 A. I thought he did not. I don't know. I thought it
06 was his policy not to.
07 Q. Chapter 6, Neil Weinstein. He is somebody that
08 testified against the tobacco industry, is that right?
09 A. I believe so.
10 Q. And Chapter 7, Richard Pollay, he is somebody that
11 testified against the tobacco industry?
12 A. I believe so.
13 Q. It doesn't disclose anywhere in this document that
14 if any of you folks have been affiliated with plaintiffs'
15 attorneys, is that right?
16 A. That's correct.
17 Q. And you would agree with me that maybe it would be
18 a good idea to disclose that type of information?
19 A. Yes, if I were to do it over I would do so.
20 Q. Just so that everybody could know exactly what
21 everybody's interests, all the authors' interests might be
22 and could evaluate themselves, is that right?
23 A. Yes.
24 Q. If you look at the reviewers of the document,
Page 87
01 what's a reviewer of a Monograph like this do, Dr. Benowitz?
02 A. Well, the way these consensus documents are done is
03 that one person drafts a chapter and then it gets sent out to
04 a number of peer reviewers for those comments and criticisms,
05 and then those comments and criticisms are brought back to
06 the editors and to the chapter authors and eventually you
07 develop a consensus that everyone agrees with.
08 Q. And the reviewers also ?? there are a number of
09 people among the reviewers who have testified against the
10 tobacco industry as well, is that right?
11 A. Yes.
12 Q. Jeffrey Wigand ? you understand him to be a former
13 employee of Brown and Williamson who was fired and has
14 testified against the tobacco industry, is that right?
15 A. Yes.
16 Q. William Farone you understand to be a former Philip
17 Morris employee who was fired and testifies against Philip
18 Morris, is that right?
19 A. Well, I should say in both those cases I don't know
20 that fired or not fired part.
21 Q. Fair enough. But you do know they testify against
22 the tobacco industry at this point, is that right?
23 A. Yes.
24 Q. Joel Cohen, he is not a former employee but he is
Page 88
01 somebody that testifies against the industry, is that right?
02 A. I believe he has.
03 Q. If you go to the next column, Sir Richard Doll ??
04 actually it's in the middle ?? Sir Richard Doll, he is
05 somebody that has testified against the tobacco industry, is
06 that right?
07 A. Yes.
08 Q. Jesse Steinfeld right beneath him has testified
09 against the industry, is that right?
10 A. Could be. I don't know.
11 Q. And right beneath him, C. Everett Koop, has he
12 testified against the tobacco industry?
13 A. I am not sure.
14 Q. Next page. Jonathan Samet is at the top, you know
15 him as somebody who has testified against the somebody
16 industry?
17 A. I believe he has.
18 Q. Jack Henningfield is an old friend and colleague of
19 yours, is that right?
20 A. Yes.
21 Q. You know he has testified against the tobacco
22 industry?
23 A. Yes.
24 Q. John Pinney down at the bottom, has he testified
Page 89
01 against the tobacco industry?
02 A. I don't believe so.
03 Q. How about John Hughes at the top of the next
04 column?
05 A. I think he did once or twice, but I don't think he
06 does anymore.
07 Q. Kenneth Warner at the bottom is somebody that's
08 testified against the tobacco industry, is that right?
09 A. May have once but his policy now is not to do that.
10 I don't think he is involved.
11 Q. Again these reviewers, there is no disclosure of
12 any interest that these reviewers might have in litigation
13 against the tobacco industry, is that right?
14 A. That's correct.
15 Q. Again you would recommend that that be corrected if
16 you were to go about this again, is that right?
17 A. Yes.
18 Q. Now when you created this document what you would
19 do is create a draft and then send it around for review, is
20 that right?
21 A. Yes.
22 Q. At least in a general sense. And one of the
23 things, one of the policies with this Monogram was that no
24 drafts of chapters were retained, is that right?
Page 90
01 A. Well, I have been asked about this before. I don't
02 know if this was a policy for everyone. It certainly was my
03 policy based on prior experience with Government reports so
04 that was my perception, but I don't recall anyone in
05 Monograph 13 telling me that.
06 Q. And I understand that nobody told you that but you
07 at least had an understanding yourself you should not
08 maintain drafts of your chapter of the Monograph, is that
09 right?
10 A. That was my understanding from my involvement in
11 1988 Report. So there on I never saved drafts of any of
12 these documents.
13 Q. And one of the benefits ?? strike the question. Do
14 you have any knowledge as to whether others associated with
15 the Monograph destroyed copies of their drafts?
16 A. I don't. I assume ?? well, let me say, I got
17 copies of the comments. So comments would either go to the
18 coordinating office or to Dr. Burns. They would send me
19 copies. Someone else had the original comments and I assume
20 that they kept them. Whether Dr. Burns kept them or not I
21 don't know.
22 Q. You don't know whether other chapter writers
23 destroyed drafts of their chapters?
24 A. I don't.
Page 91
10 Q. (Mr. Lombardi) When you were beginning work on
11 this Monograph, Dr. Benowitz, did you ever hear any of the
12 participants comment that one of the goals of the Monograph
13 was to create a document that would deny the tobacco
14 companies a rational to sell low?tar cigarettes?
15 MR. BRICKMAN: Objection, your Honor, asking for
16 hearsay, begging for hearsay.
17 THE COURT: Sustained on that basis.
18 Q. (Mr. Lombardi) Was one of your purposes to create
19 a document that would deny tobacco companies a rational to
20 sell low tar cigarettes?
21 A. No.
22 Q. Do you agree with me, Dr. Benowitz, that if there
23 is a likely decrease in the disease burden associated with
24 low?tar cigarettes that marketing light cigarettes is a
Page 92
01 legitimate activity?
02 A. Yes.
03 Q. Let's talk about the Monograph chapter that you
04 wrote, Dr. Benowitz. It's at page 39, Dr. Benowitz, if ??
05 A. Yes, I have it.
10 Q. Dr. Benowitz, that is the first page of your
11 chapter of Monograph 13, is that right?
12 A. Yes.
13 Q. And in that you define compensation there in that
14 first yellow portion I believe as you have earlier today
15 which is something that relates specifically to switching
16 from higher-tar cigarettes to lower-tar cigarettes, is that
17 right?
18 A. Yes.
19 Q. And you talk in the chapter about the best ways to
20 measure compensation in humans, is that right?
21 A. Yes.
22 Q. You have a fairly extensive discussion of
23 biomarkers of tobacco smoke exposure, is that right?
24 A. Yes.
Page 95
01 Q. And let's go to the next one, Jamail.
02 Let's go to the top first. Dr. Benowitz.
03 THE COURT: What page is that?
04 MR. LOMBARDI: Page 41, your Honor.
05 Q. (Mr. Lombardi) You note that the need for
06 particular level of nicotine is central to the concept of
07 compensation for low?yield cigarettes. Do you see that?
08 A. Yes.
09 Q. You have said that ?? well, it is true, is it not,
10 Dr. Benowitz, that the particular level of nicotine is
11 individual to the smoker, is that right?
12 A. Yes.
13 Q. That level ?? that particular level of nicotine for
14 a particular smoker can change over time, is that right?
15 A. We think so, yes.
16 Q. Now you say in the next portion, you have started
17 to talk about biomarkers, is that right?
18 A. Yes.
19 Q. You say that to determine intake most accurately
20 one must measure human exposure to chemicals in tobacco
21 smoke, is that right?
22 A. Yes.
23 Q. And that's what you are doing when you are doing a
24 biomarker study, is that right?
Page 96
01 A. Yes.
02 Q. You are measuring what is actually in the blood
03 stream of an individual?
04 A. That's correct.
05 Q. If you go to page 43 please which is 7109.58. This
06 is talking specifically about the cotinine studies, is that
07 right, Dr. Benowitz?
08 A. Yes.
09 Q. You are discussing how cotinine levels can be used
10 to make a determination of how much nicotine was ingested by
11 the individual, is that right?
12 A. Yes.
13 Q. You note that there is individual variation in the
14 way ?? in the relationship between cotinine levels and the
15 intake of nicotine?
16 A. Yes.
17 Q. So the utility of the biomarker varies from
18 individual to individual, is that right?
19 A. It depends what kind of question you are asking.
20 If you are studying the same person over time it doesn't
21 matter at all because they metabolize the same way over time.
22 If you do a cross?sectional study that means you need to
23 study a large number ?? group of people so differences
24 balance out.
Page 97
01 Q. But at least you are noting here in the Monograph
02 that there is some individual variation, is that right?
03 A. Yes.
04 Q. And the variation is because people metabolize
05 nicotine differently, is that right?
06 A. Yes.
07 Q. And there is a range of 55 to 99 percent that you
08 reference there in the amount of nicotine that is converted
09 to cotinine by individuals, is that right?
10 A. Yes.
11 Q. Now there is no biomarker right now at least for
12 tar, is that right?
13 A. Well, there are biomarkers for specific components
14 of tar, none that have been published to date but a number
15 that are being investigated currently.
16 Q. But the ?? strike the question. You actually ??
17 you personally are working to try and come up with a
18 biomarker for tar, is that right?
19 A. Yes.
20 Q. And you haven't published anything quite yet but
21 you are working on it?
22 A. Yes.
23 Q. So for now with no biomarker for tar you are in
24 essence using cotinine as a biomarker ?? people use cotinine
Page 98
01 as a biomarker for tar as well as for nicotine, is that
02 right?
03 A. Right. For the large studies we have done some for
04 switching studies where we look at mutagenic activity of the
05 urine as an indicator of tar exposure comparing one subject
06 to himself smoking different cigarettes. Aside from that,
07 that's the only study I am aware of.
08 Q. And so when we when we are trying to figure out
09 what the tar level is that any individual smoker gets from a
10 cigarette, what we do now or what you do now is you look at
11 the cotinine level which measures the nicotine and then you
12 assume that's going to have some relationship to what the tar
13 level is that you get?
14 A. Yes.
15 Q. It's not a direct measure of the tar level that any
16 individual smoker gets?
17 A. That's correct.
18 Q. Then you go on in the study if we could go to page
19 7109.59 which is page 44. You go on to talk about the
20 various kinds of experimental studies that you can do related
21 to determination of compensation, right, Dr. Benowitz?
22 A. Yes.
23 Q. And you did talk about this earlier today. There
24 are short term experimental studies, correct?
Page 99
01 A. Well, there are experimental brand switching
02 studies, either short or long?term.
03 Q. But actually in the Monograph you divide it into
04 two. You have one short term experimental study section and
05 one long?term experimental study section, right?
06 A. Right, but experimental brand switching.
07 Q. You are putting the emphasis on the fact with
08 compensation you are studying what happens when somebody
09 switches from a higher-yield brand to a lower-yield brand, is
10 that right?
11 A. Yes.
12 Q. You also talk about the self?selected brand study,
13 is that right?
14 A. Yes.
15 Q. Actually the self?selected brand study those are
16 the cross sectional studies that you were talking about?
17 A. Yes.
18 Q. That's like a snapshots at one point in time about
19 what populations of smokers are getting from particular
20 cigarettes, is that right?
21 A. Yes.
22 Q. So it would not measure switchers at all, is that
23 right?
24 A. Well, it wouldn't tell you about changes in an
Page 100
01 individual from switching. It does indirectly measure
02 switching because most smokers of light cigarettes have
03 switched from higher yield cigarettes from seeing what
04 cigarettes when people start smoking. So for individuals we
05 can't say that they are switchers but for population we can
06 say that most of the population represented by light
07 cigarettes are in fact switchers.
08 Q. I am sorry. Did you finish?
09 A. And we could compare them and say to data from
10 people who are smoking full?flavor cigarettes and you can
11 indirectly look at the question about whether there looks
12 like there was a reduction.
13 Q. But, Doctor, you would agree with me, wouldn't
14 you, that these self?selected brand studies, these cross
15 sectional studies do not address the question of what happens
16 if a person switches brands?
17 A. Not directly.
18 Q. That's actually what you say right here in the
19 second paragraph on this page all the way down to the second
20 paragraph please, Jamail. You say beginning of that
21 paragraph says: A second study design is one that follows
22 smokers who smoke self?selected cigarette brands. Data from
23 this type of study provide the best estimate of chemical
24 exposure in smokers smoking different brands of cigarettes
Page 101
01 but do not address the question of what happens if a person
02 switches brands. For example, if someone switches from high?
03 to low?yield cigarettes.
04 Do you see that?
05 A. Yes.
06 Q. And that's accurate, right?
07 A. Yes, it doesn't directly sort those out. That's
08 right.
09 Q. All right. Now, Doctor, you talked some about this
10 this morning, but isn't it true, Doctor, that of the ??
11 strike the question. Do you remember how many studies you
12 actually cite and talk about under these four different kind
13 of brand studies?
14 A. How many studies in all?
15 Q. I am not asking you to count. I am asking you if
16 you know off the top of your head.
17 A. Probably 20 or 30, but I didn't count.
18 Q. Is it true, Dr. Benowitz, that most of the studies
19 that you do here conclude that there is not complete
20 compensation?
21 A. Well, the ones that address compensation are the
22 brand switching studies and the brand switching studies as I
23 said before suggest that bigger studies and better studies
24 about 80 percent compensation.
Page 102
01 Q. And that's not complete compensation, is that
02 right?
03 A. That's correct.
04 Q. And actually maybe I should just ?? you had -- the
05 first type of study you talk about is short term
06 experimental, correct?
07 A. Right.
08 Q. And the studies that you cite under short term
09 experimental understanding the limitations that you have
10 already told us about with respect to those studies for the
11 most part show less than complete compensation, is that
12 right?
13 A. Yes. Now there is a short?term experimental study
14 of my own that I think is relevant to understanding the issue
15 of incomplete compensation.
16 Q. Go ahead.
17 A. We did a study where we switched people from a
18 regular cigarette, full favor cigarette to smoke a Camel
19 cigarette which was also same yield or to a True cigarette
20 which had a yield of about half, .5 milligrams nicotine. And
21 what we found is that there was a reduction of about 20
22 percent in cotinine and other markers for both of them, for
23 the Camel even though the Camel had exactly the same yield,
24 but the Camel and True data were exactly the same.
Page 103
01 So if you were to compare the True itself to the
02 original cigarette you would say that there is 80 percent
03 compensation but if you compare the True to the Camel which
04 is also high yield cigarette you would say there is a hundred
05 percent compensation.
06 We interpreted that as when you switched to a
07 cigarette that is not their normal cigarette and they don't
08 like it as much they smoke it a little bit less and not
09 strictly speaking a compensation question. That's important
10 in understanding the four switching studies.
11 Q. Let's go through and you put the percentage of
12 compensation that you found, that these studies found
13 according to each section of your chapter of the Monograph,
14 is that right?
15 A. Yes.
16 Q. For short term experimental studies, if we go
17 through it, the Russell study showed 20 percent compensation,
18 is that right, for the low-yield cigarettes?
19 A. Yes.
20 Q. The next one ? is that the study that you were
21 talking about, the Camel study?
22 A. Yes, I should comment the Russell study was just a
23 matter of one day. They studied smoking over five hours.
24 Q. That's fine, but you cited it here in the
Page 104
01 Monograph.
02 A. I just wanted to put it in perspective.
03 Q. That's fine, but you made a choice to include it
04 here in the Monograph, is that right?
05 A. Yes.
06 Q. The next one is your study that you were talking
07 about with Camel and True?
08 A. Right.
09 Q. When ?? you found when somebody switched from their
10 usual higher tar brand to Camel or True, there was an
11 approximately one third decline in nicotine exposure?
12 A. Yes.
13 Q. That means, what, that compensation is 67 percent?
14 A. Well, I didn't calculate that but, I don't know,
15 something like that.
16 Q. The next study you referred to showed compensation
17 of 74 percent?
18 A. But here in this one as I just mentioned to you
19 this does say when you use the Camel as a comparator then
20 compensation would be 100 percent.
21 Q. Okay. And in the next one, Doctor -- where you
22 were Jamail -- you state that the percent compensation was
23 estimated to be 74 percent, is that right?
24 A. Yes.
Page 105
01 Q. Okay. And the next one you conclude or the study
02 concluded that there was 36 percent compensation?
03 A. Right. That one was to ultra low?yield which is to
04 compensate for.
05 Q. You wrote that latter is consistent with 36 percent
06 compensation?
07 A. Yes.
08 Q. The next study that you looked at had a range of
09 compensation based on cigarette smoke from 56 to 60 percent,
10 is that right?
11 A. Yes.
12 Q. And then you talk about one of your studies.
13 What's the percent compensation from this last one, Dr.
14 Benowitz?
15 A. Well, this last one was actually the one I talked
16 about before the Camel, True, Carlton and this comment here
17 was talking about the question of: Does tar and nicotine
18 ratio change when you intensively smoke a cigarette? This is
19 not strictly speaking a compensation number. This is
20 discussing another phenomenon.
21 Q. I won't put a compensation percentage up for that
22 one.
23 A. Right.
24 Q. You would agree with me that for short term
Page 106
01 experimental studies none of those you cite in the Monograph
02 come up to complete compensation, is that right?
03 A. Only if you use the Camel comparator in our study
04 which is the novelty of switching to another cigarette.
05 Q. Let's look at the long?term experimental study
06 section starting at page 47. The first study you cite has 36
07 percent compensation, is that right?
08 A. Yes.
09 Q. The next study you cite, what's the conclusion of
10 that one?
11 A. I don't think that I had the appropriate data to
12 calculate the percent of compensation for the Robinson study.
13 Q. Okay. Let' go to the next study which is the Peach
14 study. That indicates one hundred percent, is that right?
15 A. Yes.
16 Q. The next study I am sure I am going to butcher this
17 name, Dr. Benowitz, but it's Guyatt, G?U?Y?A?T?T?
18 A. Could be. I have never heard it pronounced.
19 Q. That estimates compensation to be either 61 percent
20 or 56 percent depending on which biomarker you use?
21 A. Yes.
22 Q. I will use 61/56 percent.
23 Q. Then there is the Frost study and that one
24 concludes compensation to be either 79 or 65 percent based on
Page 107
01 how it's studied?
02 A. Yes, cotinine one is 79 percent which I think is
03 the most relevant.
04 Q. Okay. I put both up, 79 and 65 percent. That's
05 the last of the long?term experimental studies?
06 A. Yes.
07 Q. You would agree with me that one of the four
08 long?term experimental studies shows complete compensation,
09 is that right?
10 A. Yes.
11 Q. And the remainder of them show incomplete
12 compensation, is that right?
13 A. Yes. I think though that one thing to keep in mind
14 is the size of the study. The Frost study which is the last
15 one studied more than 400 smokers. That was the one that
16 found 79 percent and I think that's most representative of
17 the true rate.
18 Q. Still not complete compensation?
19 A. Correct.
20 Q. Then the self?selected brand studies, these are the
21 ones about which you wrote that do not address brand
22 switching, right?
23 A. Not directly, that's correct.
24 Q. I will put: Do not address brand switching
Page 108
01 directly, Dr. Benowitz. But even if you were to look at
02 those studies ?? excuse me. Even if you were to look at
03 those studies, Dr. Benowitz, what they tend to show is the
04 same thing you talk about in Monograph 7 which is a shallow
05 relationship between tar yields as measured by the FTC
06 machine and nicotine intake by the smoker, is that right?
07 A. Yes.
08 Q. So I will put shallow relationship as well?
09 A. Yes.
10 Q. So that category -- to the extent you are even
11 going to consider self?selected brand studies which don't
12 directly address brand switching it still shows that there is
13 some relationship between the FTC tar yield level and what
14 the smoker is getting, correct?
15 A. But I have to say that the shallow relationship is
16 when you do a curve across the full gamut or full range of
17 yields. If you break it up the way I showed in the figure
18 earlier today most studies show that the ultra low?yield ones
19 are actually lower. If you take those out then the curve
20 becomes quite flat.
21 If you include them you get a shallow slope. I
22 think on many studies the slope is really determined in
23 including the ultra-lows that I think are really different
24 than the rest of them. Again if you get rid of that and then
Page 109
01 compare yields of say .5 to 1.5 that's pretty flat.
02 Q. We are not addressing brand switching directly
03 there because we don't know which smokers have switched,
04 correct?
05 A. Not directly because as I said before it's
06 consistent with compensation because most light ?? most
07 people don't start with light cigarettes. Most people start
08 with full flavor and switch eventually so we think the
09 population gives them information about switching but doesn't
10 directly do it because we don't ask about that.
11 Q. And to the extent you get reports, you get reports
12 that there is not ?? there is substantial compensation but
13 not complete compensation, is that right?
14 A. Again depends on how you plot the graphs. If you
15 include the full gamut you see a shallow slope. I think if
16 you look at the cigarettes and the range we are talking about
17 today, the slope is really horizontal or flat, not a
18 relationship.
19 Q. Okay. And then we turn to the spontaneous brand
20 switching study and I think and correct me if I am wrong.
21 This is the one you said you thought was most indicative of
22 what real smokers are doing?
23 A. Well, it's the only one that looks at people
24 actually switched brands.
Page 110
01 Q. And just so the Judge understands the type of study
02 this is, you had a group smokers. You did one of these
03 studies yourself, is that right?
04 A. Yes.
05 Q. And to simplify a little bit you had a group of
06 smokers at one beginning point and you did cotinine
07 measurements of the men and then you did cotinine measures of
08 the same group at an end point. And some of those people had
09 switched in the meantime so you could compare their beginning
10 cotinine level with the ending cotinine levels.
11 Is that the basic idea?
12 A. Yes.
13 Q. There are only two spontaneous brand switching
14 studies that are discussed in the Monograph?
15 A. Yes.
16 Q. Actually the second study was by somebody named
17 Peach, is that right?
18 A. Yes.
19 Q. That's not a pure brand spontaneous brand switching
20 study, correct?
21 A. Right.
22 Q. Because Peach didn't measure the people at the
23 beginning of the study, right?
24 A. That's correct.
Page 111
01 Q. So whatever he is doing at the end of the study he
02 is not able to make a comparison the way you were for your
03 study, is that right?
04 A. That's correct.
05 Q. But you would agree, Dr. Benowitz, that in your
06 spontaneous brand switching study, the total exposure of the
07 smoker in that study declined by 20 percent, is that right?
08 A. It did. Exposure for cigarettes did not change,
09 but the total exposure dropped because they smoked fewer
10 cigarettes.
11 Q. They were exposed less to tar, is that right?
12 A. Right, because they smoked fewer cigarettes.
13 Q. And that's a good thing, right?
14 A. Yes.
15 Q. You would prefer to see them exposed less?
16 A. Yes.
17 Q. So the spontaneous brand switching study that you
18 do showed a 20 percent decline in exposure, is that right?
19 A. In total exposure, not per cigarette exposure. Per
20 cigarette exposure was the same.
21 Q. If I put total exposure that would capture what you
22 are saying, is that right?
23 A. Yes.
24 Q. And actually the Peach study, even though it's not
Page 112
01 a pure brand switching ?? excuse me, pure spontaneous brand
02 switching study also shows a decline in cigarette consumption
03 by the smoker, is that right?
04 A. Yes.
05 Q. So the other study also shows ?? did it specify the
06 decline ? Peach?
07 A. It does but I don't have a copy of the paper here.
08 He also found decline in cigarette smoking in people who
09 didn't switch also, so the whole population had reduced their
10 consumption.
11 Q. Okay.
12 A. I will have to say that why people smoke fewer
13 cigarettes in our spontaneous brand switching study is not
14 really understood because if you look at the general
15 population of smokers people smoking light cigarettes do not
16 smoke fewer cigarettes than those who smoke full flavor
17 cigarettes. They may smoke even slightly more but they do
18 not smoke less.
19 My interpretation of this study was that these were
20 people who were trying to consciously reduce their smoking
21 and therefore restraining their smoking fewer cigarettes, but
22 insofar as smoking fewer cigarettes our spontaneous switching
23 study is not consistent with the big population of light
24 cigarettes smokers.
Page 113
01 Q. Okay. All I am trying to do is make clear what the
02 total exposure of smokers was in your study, and they got a
03 decline ?? a 20 percent decline in their exposure, is that
04 right?
05 A. Yes.
06 Q. Peach also had a decline which you don't
07 specifically reference the number in the Monograph, but there
08 was some decline, is that right?
09 A. Right. He emphasized that the cotinine level was
10 the same in people who either decreased their brand or didn't
11 decrease their brand. So there was a drop in cigarette
12 consumption but he emphasized there was no evidence that
13 brand reduction ?? that yield reduction resulted in a
14 decrease of cotinine or nicotine levels.
15 Q. So if we go back and summarize what all the studies
16 that you chose to put in the Monograph show, short?term
17 exposure show incomplete compensation, is that right?
18 A. Yes.
19 Q. Long?term exposure shows incomplete compensation
20 over all, is that right?
21 A. Yes.
22 Q. Self?selected brand studies don't really even
23 address brand switching directly, correct?
24 A. Right.
Page 114
01 Q. But to the extent they do, it does show a shallow
02 relationship between yields and exposure, is that right?
03 A. Not in the range relevant to this case, but
04 certainly there is some change when you get to very low yield
05 cigarettes.
06 Q. In the spontaneous brand switching study both of
07 those studies show declines in total exposure to tar, is that
08 right?
09 A. No evidence of reduced exposure per cigarette.
10 Q. That's what the underlying evidence shows about
11 exposure in your chapter of the Monograph, is that right?
12 A. With my caveats, yes.
13 Q. Dr. Benowitz, you testified at some length this
14 morning about addiction, is that right?
15 A. Yes.
16 Q. And you weren't suggesting by your testimony this
17 morning that every smoker is addicted, is that right?
18 A. No.
19 Q. And I am not sure whether I heard you this morning
20 or relying on past testimony. Just ?? did you say this
21 morning that you think it's about 80 percent of smokers who
22 are addicted?
23 A. That's about right.
24 Q. So again whether a particular smoker is addicted
Page 115
01 depends on that individual smoker, is that right?
02 A. Yes.
03 Q. You have to look at that smoker and understand that
04 smoker's situation in order to make a decision about whether
05 to call them addicted or not?
06 A. Yes.
07 Q. And in fact do you diagnose addiction among smokers
08 in your practice?
09 A. Yes.
10 Q. You use something called the Fager?Strom Scale, is
11 that right?
12 A. I have used that.
13 Q. There is a test that measures the severity of
14 nicotine dependence or addiction, is that right?
15 A. Yes.
16 Q. What you do with the Fager?Strom Scale is you have
17 to sit down and talk to an individual patient about their
18 smoking history?
19 A. Yes.
20 Q. You get information from the patient about their
21 smoking habits, correct?
22 A. Yes.
23 Q. And when you get that information from the patient
24 then you can slot that information according to the
Page 116
01 Fager?Strom Scale and coming up with a read on how dependent
02 they are on nicotine, is that right?
03 A. Yes.
04 Q. And so you need look at the individual patients in
05 order to understand whether that patient is addicted or not,
06 is that right?
07 A. Yes.
08 Q. There is no other way to do it. You have to talk
09 to the patient, don't you?
10 A. Yes.
11 Q. Now you have not talked to any of the class
12 representatives in this case about their addiction, have you?
13 A. No.
14 Q. You haven't talk to Miss Miles, Miss McHatton, Mr.
15 Fruth, Miss Price, Miss Whitt this about their smoking
16 history, is that right?
17 A. I have not.
18 Q. So you have no opinion and can have no opinion
19 about whether they are in fact addicted or not, is that
20 right?
21 A. That is correct.
22 Q. Dr. Benowitz, incidentally the Congressional
23 testimony that was put up there on the screen for you to look
24 at, you have done that before in trials, haven't you?
Page 117
01 A. I have talked about the testimony. I don't know if
02 it's been shown before.
03 Q. And the gist of your testimony was that ?? the
04 Congressional testimony can have an effect on smokers, right?
05 A. I don't know if I have said that specific testimony
06 could, but I have said that if Philip Morris is communicating
07 to smokers that smoking is addicting that could ?? that
08 message ?? I don't know specifically about whether this
09 testimony did it or not.
10 Q. Well, you didn't mean ?? that's all I was getting
11 at, Dr. Benowitz. You didn't mean to suggest by testifying
12 about that Congressional testimony up here, you didn't mean
13 to indicate that you had spoken to any class members or class
14 representative about the effect of that testimony on them
15 personally, is that right?
16 A. That is correct.
17 Q. And you have no information about the effect of
18 anything Philip Morris said about addiction on the class
19 members, is that right, or the class representatives, is that
20 right?
21 A. Yes.
22 Q. Same thing with this question about gummy bears,
23 you remember that. You were asked about gummy bears. You
24 don't know how many class members saw that or were affected
Page 118
01 by that?
02 A. That's correct.
03 Q. In fact you know the gummy bear comment was made in
04 the context of a deposition, is that right?
05 A. Yes, it was also commented upon in the press and
06 television.
07 Q. And that was because you know some plaintiffs'
08 attorneys gave the deposition tape to the press and the press
09 then played it?
10 MR. BRICKMAN: Objection.
11 THE COURT: Sustained. Question is whether it was said
12 or not.
13 Q. (Mr. Lombardi) Dr. Benowitz, you also testified
14 about the FTC method in some detail. And you said ?? well,
15 you have actually been involved several times with the FTC,
16 is that right?
17 A. Yes.
18 Q. And talking about whether the FTC method should be
19 used or not used, is that right?
20 A. Yes.
21 Q. That started for you back around '82 with that
22 Barclay situation that we talked about, is that right?
23 A. Yes.
24 Q. Then in '94 we talked about the dealing with the FTC
Page 119
01 and making recommendations to the FTC about the FTC method in
02 1994, is that right?
03 A. Yes.
04 Q. And the FTC considered your recommendations, is
05 that right?
06 A. Probably. They didn't tell me what they thought of
07 them but probably considered them.
08 Q. They didn't act on them, is that right?
09 A. That's correct.
10 Q. In 1998 the FTC considered the test method, is that
11 right?
12 A. Yes.
13 Q. You again were in touch with the FTC about that, is
14 that right?
15 A. Yes.
16 Q. Actually today you have been in touch with the FTC
17 very recently about the FTC test method, is that right?
18 MR. BRICKMAN: Is he referring to today or recently?
19 MR. LOMBARDI: That's fair enough. I will withdraw the
20 question.
21 Q. Recently you have been in touch with the FTC about
22 the FTC method, is that right?
23 A. Yes.
24 Q. You actually have been approached by the FTC to
Page 120
01 answer some questions about light cigarettes and the FTC
02 method, is that right?
03 A. Yes.
04 Q. Here is Exhibit 4068. Before we get to the letter,
05 Dr. Benowitz, what happened was the FTC came to you and said
06 we are considering what to do about the descriptors "lights"
07 and other descriptors used with low?tar cigarettes, is that
08 right?
09 A. Yes.
10 Q. They asked you a series of questions about those
11 cigarettes, is that right?
12 A. Yes.
13 Q. And they asked you about what you thought of the
14 health effects of those cigarettes, is that right?
15 A. Yes.
16 Q. And you and some other scientists that worked on
17 Monograph 13 weren't satisfied with the way that interview
18 process was carried out, is that right?
19 A. Yes.
20 Q. So you and some other scientists wrote a letter to
21 the FTC in October of last year, is that right?
22 A. Yes.
23 Q. And the letter that you wrote is before you as
24 Exhibit 4068, is that correct?
Page 121
01 A. Yes.
02 Q. And in that letter ?? well, that's a letter dated
03 October 21st, 2002?
04 A. Yes.
05 Q. And it's to Thomas B. Pahl, P?A?H?L, of the Federal
06 Trade Commission, is that right?
07 A. Yes.
08 Q. It's signed by you among others, is that right?
09 A. Yes.
10 Q. Can we put that letter up please. That first
11 yellow says: Those of us who have participated in the
12 interviews -- and that's the interview process I just
13 referred to where the FTC asked you some questions, right,
14 Dr. Benowitz?
15 A. Yes.
16 Q. And who were authors or reviewers of Monograph 13
17 are uncomfortable with the format of the questions and are
18 concerned that our personal responses may be used to suggest
19 that we support the validity or utility of the testing of
20 cigarettes using the FTC method of machine testing.
21 That's what you told the FTC was the reason for
22 sending the letter?
23 A. Yes.
24 Q. Then you go through and give opinions among which
Page 122
01 is that you don't think much of the FTC test method these
02 days, is that right?
03 A. Yes.
04 Q. And you also tell the FTC in number two if you can
05 get to the beginning of number two, what you think the FTC
06 ought to do about terms like low?tar, light and ultra light,
07 is that right?
08 A. Yes.
09 Q. You think ?? and you told the FTC this ?? that they
10 are deceptive, right?
11 A. Yes.
12 Q. You know that the FTC right now is considering
13 whether those terms are deceptive?
14 A. Yes.
15 Q. They have that on their plate in Washington, D.C.
16 ??
02 Q. You refer to the testing for tar and nicotine. Do
03 you see that in the first line?
04 A. Yes.
05 Q. You call it the existing mandatory testing for tar
06 and nicotine, is that right?
07 A. Yes.
08 Q. That's your description?
09 A. Yes.
10 Q. Okay. Let's just show below your signature so we
11 confirm that's your signature, Dr. Benowitz, is that right?
12 A. Yes.
13 Q. And that's the letter you sent to the FTC on
14 October 21st of 2002, is that right?
15 A. Yes.
16 Q. Now you said in your direct examination, you talked
17 about the analogy between EPA gas mileage and the FTC test
18 method, is that right?
19 A. Yes.
20 Q. You said ?? I don't remember your word but said
21 that is not a apt analogy, is that right?
22 A. Yes.
23 Q. You are aware though, Doctor, that is precisely the
24 analogy that the FTC has used with respect to its test? You
Page 126
01 are aware of that, aren't you?
02 A. Well, I think it used it in earlier years. I don't
03 know if they used it recently.
04 Q. They used it ?? you know they used it because they
05 used it during that Barclay proceeding that you were part of,
06 isn't that right?
07 A. Back in the Barclay there was still the idea that
08 FTC while not precise did provide some relative exposure
09 data, and currently we don't believe that anymore.
10 Q. Well ?? so there is no confusion though, Dr.
11 Benowitz, you don't think it was wrong of the FTC to
12 analogize its test method to the EPA gas mileage system back
13 at the time of the Barclay proceeding in 1983, do you?
14 A. Well, at that time I think there was still the
15 sense that there was some relationship between machine yields
16 and human exposures. My study hadn't been published yet.
17 Gio Gori's study had not been published yet and other
18 information was not available to them so they still believe
19 there was some relative ranking, but I don't believe that
20 they would say that today.
21 Q. But my question ?? my only question you are not
22 critical of them for comparing their test to the EPA gas
23 mileage test back in 1983 during the Barclay proceeding?
24 A. Well, not as critical ??
Page 127
08 Q. (Mr. Lombardi) Dr. Benowitz, you mentioned quickly
09 vent blocking in your direct testimony?
10 A. Yes.
11 Q. And vent blocking is a way of compensating?
12 A. Yes.
13 Q. You cover the vent hole and that prevents you from
14 getting the full benefit of lowered tar, is that right?
15 A. Yes.
16 Q. Vent blocking ? you didn't mean to suggest to the
17 Court that vent blocking is a problem with Marlboro Lights
18 cigarettes, did you?
19 A. No, I stated that's for really highly-ventilated
20 cigarettes. Marlboro Lights is not that highly ventilated.
21 Q. You are aware that the Monograph itself concludes
22 that vent blocking is not a significant issue with light
23 cigarettes like Marlboro Lights?
24 A. Yes.
Page 129
01 Q. And specifically cites two studies for that
02 proposition that involve Marlboro Lights themselves, is that
03 right?
04 A. Yes.
03 REDIRECT EXAMINATION
04 BY MR. BRICKMAN:
05 Q. With regard to that chart that's over there -- and
06 I don't need to move it back over here -- all those studies
07 that were done, you analyzed all those studies?
08 A. Yes.
09 Q. You looked at the good points and the bad points in
10 all these studies?
11 A. Yes.
12 Q. Some of them were ?? dealt with ultra?low
13 cigarettes?
14 A. Yes.
15 Q. Some of them dealt with high?yield cigarettes?
16 A. Yes.
17 Q. Did any of them in any way change your opinion
18 about Marlboro Lights and Cambridge Lights?
19 A. No.
20 Q. Do you still have the opinion that with regard to
21 those two cigarettes, people compensate when they switch to
22 them?
23 A. Yes.
24 Q. Do they compensate fully and completely?
Page 131
01 A. Yes.
07 Q. (Mr. Brickman) I just want to talk about the
08 people in Illinois who are members of this Class, okay, the
09 people that purchased Marlboro Light cigarettes and Cambridge
10 Light cigarettes here in the State of Illinois.
11 Does it change any of the opinions you gave about
12 those smokers earlier today that virtually all of them
13 compensate?
14 MR. LOMBARDI: Objection, no foundation as was revealed
15 on cross.
16 THE COURT: Overruled.
17 A. No, it does not change my opinion.
18 Q. Are you still of the opinion for those smokers we
19 just listed compensation is complete and full?
20 MR. LOMBARDI: Same objection, your Honor.
21 A. Yes.
22 THE COURT: Well, it's within the cross examination and
23 I am allowing it because there was a lot said about
24 compensation and especially with that diagram.
Page 132
01 Q. (Mr. Brickman) And even after asking you about all
02 those studies do you still have the opinion to a reasonable
03 degree of medical certainty for the class members here for
04 Marlboro Lights and Cambridge Lights, the cigarettes in
05 question here, compensation is long?term?
06 MR. LOMBARDI: Object, no foundation, your Honor.
07 THE COURT: Overruled.
08 A. Yes, I do.
09 Q. Now, counsel went through a number of the authors
10 of Monograph 13 who have apparently testified in various
11 litigation involving tobacco companies. Are those people the
12 leading experts in the field?
13 A. Yes.
14 MR. LOMBARDI: Objection, your Honor.
15 THE COURT: Overruled. Let's get done. That is his
16 opinion.
17 Q. (Mr. Brickman) Let me ask you this. Wasn't said
18 directly but there was some implication because you have
19 testified or may be testifying for plaintiffs that that in
20 some way has tainted your view or in any way tainted the
21 opinions you gave from Monograph 13. Did it?
22 MR. LOMBARDI: Object to the implication counsel is
23 trying to draw.
24 THE COURT: Well, there was some intimation that the
Page 133
01 Court kind of discerned that these are all people that are
02 for the plaintiffs' bar in tobacco cases. Let's clear that
03 up.
04 A. No, I have been working on this question and
05 problem as you have heard since the late 1970's, early
06 1980's. My opinions have evolved. I have written about this
07 extensively long before I started testifying.
08 Q. And just to make it over all very broad, make sure
09 we are clear, did any point counsel made in cross examination
10 change any of the opinions you gave today to this Court in
11 direct?
12 MR. LOMBARDI: Objection to the form. There was a lot
13 of opinions.
14 THE COURT: I will sustain that. There were a lot of
15 opinions.
16 MR. BRICKMAN: I want to know if any of them changed,
17 then I will narrow it down.
18 Q. (Mr. Brickman) I will tell you what, any of the
19 opinions you gave with regard to Marlboro Lights and
20 Cambridge Lights and the smokers of those cigarettes
21 compensating and/or titrating, have any of those opinions
22 changed?
23 MR. LOMBARDI: Object to the form.
24 THE COURT: Overruled.
Page 134
01 A. No, they have not.
02 Q. You were asked a number of questions about
03 individuals within the class, if you examined this person or
04 that person, have you done a cotinine study of Mrs. Miles or
05 Miss McHatton. If you were to do a cotinine study of Miss
06 Miles would that tell you anything about her, whether she has
07 compensated?
08 A. No, the only way to do a compensation study in an
09 individual would be to have measured cotinine before they
10 switched and then measured cotinine after they switched. So
11 at this point in time there is no way to do a biomarker
12 study for compensation.
13 Q. Now, with regard to these cigarettes in question,
14 the Marlboro Light and the Cambridge Light, do these
15 cigarettes allow individual smokers to get their own
16 individualized amount of nicotine that they are seeking to
17 get?
22 A. Yes. These cigarettes have got plenty of nicotine
23 in them and the smoker can get quite different amounts
24 according to how they smoke the cigarette. There is a lot of
Page 135
01 flexibility in the delivery according to how a person smokes.
02 Q. As a result do they also get all the other harmful
03 toxins such as the tar, et cetera, et cetera that go with it?
04 A. They do.
05 Q. You were also asked one other question being given
06 by the peanut gallery. In spite of the individual
07 variability among smokers generally, do you have an opinion
08 as to whether Marlboro Lights and Cambridge Lights cigarettes
09 allow smokers to extract the same level of nicotine and tar
10 as they would get from a regular cigarette?
14 A. Yes, I do have an opinion about that.
15 Q. What is that opinion and would you give it to a
16 reasonable degree of scientific certainly please?
05 A. Yes, based on large numbers of individual study and
06 cross sectional studies and knowing how people smoke
07 cigarettes and the relatively small difference in the FTC
08 yields of these cigarettes, I have no question that a person
09 could easily compensate one hundred percent and sustain it on
10 switching from Marlboro to Marlboro Light or Cambridge to
11 Cambridge Lights.
12 Q. Now, counsel kept asking you various questions
13 about this ?? trying to think ?? MIPM 5059 which is the
14 Lancet article about the Fourth Scarborough Conference. Do
15 you recall that?
16 A. Yes.
17 Q. You were asked and shown a little highlight, and I
18 don't know that we have it that we can put up. Can we get it
19 on the screen?
20 Can you see right there where my finger is? The
21 tobacco industry has complied with the lower tar policy in
22 the U.S. and the U. K. Do you see that?
23 A. Yes.
13 A. If in attempting to switch to lower tar brands,
14 smokers are in fact guided by their perceptions of tar rather
15 than actual tar number. The best strategy for a company
16 should be to have the highest tar brands in each perceived
17 tar delivery segment.
18 Q. Does that comport with what you were trying to get
19 across at the Scarborough Conference?
20 MR. LOMBARDI: Object to the form.
21 THE COURT: Overruled.
22 A. No. This is actually quite a cynical comment that
23 the categories of tars have limits. A high tar or certain
24 range for high, certain range for medium, certain range for
Page 138
01 low or light, whatever you call them. What this is saying --
02 and it's because cigarettes that have more tar are generally
03 more flavorful and may be enjoyed more by smokers, this says:
04 Give the smoker the highest tar that we are allowed to
05 within a certain category.
06 If there is a belief that tar is really causing disease
07 then this says, Give the smokers the highest risk cigarette
08 you can get away with.
20 RECROSS EXAMINATION
21 BY MR. LOMBARDI:
22 Q. Dr. Benowitz, is it your testimony it's impossible
23 to measure whether an individual class member is compensated
24 at this point?
Page 139
01 A. Unless you had some information about their
02 consumption or their exposure before they switched I don't
03 see how you can do that.
04 Q. And you said that a cigarette can ?? that the
05 Marlboro Lights and Cambridge Lights cigarettes are designed
06 so that smokers can compensate one hundred percent, is that
07 right?
08 A. Well, their design is such that they can.
09 Q. Okay. That's what I was asking. And it's
10 different thing to say that they can compensate one hundred
11 percent and to say they do compensate one hundred percent.
12 You will agree with that, is that right?
13 A. Are you asking about the English language?
14 Q. Sure.
15 A. Yes, that's correct.
16 Q. And, Dr. Benowitz, there is no commercial cigarette
17 out on the market today that prevents compensation, is that
18 right?
19 A. That's correct.
20 Q. And you are not aware of any cigarette design that
21 lowers the amount of tar that an individual could receive
22 without also permitting compensation, is that right?
23 A. Currently available, no. The ultra?low?yield
24 cigarettes are harder to compensate for than the other ones,
Page 140
01 but I am not aware of anything that prevents compensation.
02 Q. And Dr. Benowitz, on that last document you were
03 talking about, you made some comment about it was cynical.
04 Do you know the author of document?
05 A. I don't.
06 Q. And you obviously never talked to him about the
07 document?
08 A. That's correct.
09 Q. Never read any deposition testimony about the
10 document?
11 A. That's correct.
12 Q. And, Doctor, you know from your own experience that
13 Philip Morris offers a wide range of tar deliveries of
14 cigarettes, is that right?
15 A. Yes.
16 Q. They offer ultra?light cigarettes?
17 A. Yes.
18 Q. They offer light cigarettes that have single digit
19 tar deliveries on the FTC test method?
20 A. Yes.
21 Q. In fact Marlboro Lights is about 11 milligrams, is
22 that right?
23 A. Yes.
24 Q. And cut off line is about 15 milligrams, is that
Page 141
01 right?
02 A. Yes.
03 MR. LOMBARDI: That's all, your Honor. Thank you.
04 THE COURT: Okay. Are we done with the witness?
05 MR. BRICKMAN: Yes, sir.
06 THE COURT: You will be excused, sir. Thanks.
07 (Witness exits stand.)