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1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CIVIL ACTION NO. 83-2864 SA ANTONIO CIPOLLONE, individually : and as Executor of the Estate of ROSE D. CIPPOLLONE, . Plaintiff, : Deposition of: vs. . SHELDON C. SOMMERS 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LIGGETT GROUP, INC., a Delaware corporation; PHILIP MORRIS INCORPORATED, a Virginia corporation; LOEW'S THEATRES, INC., a New York corporation, Defendants. TRANSCRIPT of testimony as taken by and before MARGARET J. TEILHABER, a Certified Shorthand Reporter and Notary Public of the State of New Jersey, at the offices of DEBEVOISE & PLIMPTON, 875 Third Avenue, New York, New York, on Thursday, October 2, 1986, commencing at 10:40 in the forenoon. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 I l._rT[',, Mt Z 014SOI

2 2 3 4 10 11 12 A P P E A R A N C E S: BUDD, LARNER, GROSS, PICILLO, ROSENBAUM, GREENBERG & SADE 150 John F. Kennedy Parkway Short Hills, New Jersey 07078 BY: MARC Z. EDELL, ESQ. For the Plaintiff WEBSTER & SHEFFIELD 1 Rockefeller Plaza New York, New York 10020 BY: LYNN M. STABINE, ESQ. 13i For Liggett Group, Inc. 14 j 15I SHOOK, HARDY & BACON 16i 20th Floor 17~ Mercantile Bank Tower i 18 1101 Walnut I 19~ Kansas City, Missouri 64106 I 20~ BY: WILLIAM W. SHINN, ESQ. 21; ROBERT E•. NORTHRIP, ESQ. 22; STEVEN C. PARRISH, ESQ. i 23! PATRICK M. SIRRIDGE, ESQ. 24 For Philip Morris, Inc. 25 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CT~~ H~4~ 0 ~ 45 ~~

i 1i A P P E A R A N C E S: (Continued) I 2 ; 31 BROWN, CONNERY, KULP, WILLE, 5 1 PURNELL & GREENE Parkade Building 6 518 Market Street 7 P.O. Box 1449 8 Camden, New Jersey 08101 9 BY: RAYMOND F. DROZDOWSKI, ESQ. 10 For Philip Morris, Inc. 11 12 SILLS, BECK, CUMMIS, ZUCKERMAN, 13 RADIN & TISCHMAN, P.A. 14 33 Washington Street 15 Newark, New Jersey 07102-3179 16 BY: JOEL C. BALSAM, ESQ. 17 For Loews Theatres, Inc. 18 19 ARNOLD & PORTER 20 1200 New Hampshire Avenue, N.W. 21 Washington, D..C. 20036 22 BY: HADRIAN R. KATZ, ESQ. 23 For Phillip Morris 24 25 , waga and spinelli certified shorthand reporters 3 405 Northlield Avenue West Orange. N. J. 07052 201•731-9666 C T ~~ ~'i N 0 1 4 5- 03

4 A P P E A R A N C E S: (Continued) 2 DEBE VOISE & PLIMPTON 875 Third Avenue New York, New York 10022 BY: ANDREW C. HARTZELL, JR., ESQ. JOHN G. KOELTL, ESQ. 8 EDWARD M. ROTH, ESQ. 9 F.or the Witness and CTR. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731-9666 CT- ["IN 014504

j I-N-D-E-X 2 3 WITNESS SHELDON C SOMMERS DIRECT M D . , . . Mr. Edell 8 9 10 11 I i E NUMBER -- --- X H I B I T S DESCRIPTION IDENTIFICATION ----------- 12 (The following are all Sommers exhibits; i.e., 131 Sommers-1, etc.) 1 141 1 Notice to Tak e Deposition 8 15 j 16~ I 2 Letter, 9-12=86 8 17 i 18~ 3 Letter, 9-19-86 8 19 20 4 53 pages of documents 15 21' produced pursuant to subpoena 22 ! i 23~ 4A Transcript of portion of hearing 100 24 re Public Health -Cigarette 25, Amendments of 1971 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201•731•9666 C T R H N 0 14 E-- ;~E -0

1 2 3 4 5 10 11 181 19 23 1 I 24; 25 6 E X H I B I T S --------------- NUMBER (Continued) DESCRIPTION IDENTIFICATION - - - - 4B Transcript of portion of hearing 100 Re Public Health Cigarette 4C Amendments of 1971 Transcript of portion of hearing 100 Re Cigarette and Advertising, 1976 5 Deposition of Dr. Sheldon 47 Sommers, Dec. 17 and 18, 1985 6 Curriculum Vitae of Sheldon 69 7 Sommers 4-page statement of Sheldon 100 8 Sommers, 2-8-65 Article entitled "Cigaret Blame 100 For Cancer is Questioned" 9 4-page document entitled For Use 100 After 10 A.M. Wednesday, 4-30-69 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 01450G

;-i 7 405 Northtield Avenue West Orange, N. J. 07052 201-731-9666 E X H I B I T S NUMBER (Continued) DESCRIPTION IDENTIFICATION ------ ----------- -------------- ~ 10 Statement of Dr. Sommers before 100 ~ the Consumer Subcommittee of the i 61 U.S. Senate Interstate Commerce i 71 Committee 8 9 11 1-page document entitled Scientific 113 10 Advisory Board Members, 1954-1978 11 12 12 tter 9-23-81 L 136 , e 13 14 13 2-page letter, 8-19-71 136 I 15 16 14 1-page document entitled "From the I 138 17 Desk of W. T. Hoyt" 18 19 15 2-page memo, 4-22-74, with cover 153 20 sheet 21 22 23 24 25 waga and spinelli certified shorthand reporters CTR NN 014E50{

8 (Somers Exhibi ts 1, 2 and 3 marked 8 9 identification.) S H E L D O N C. S 0 M M E R S, for Cambridge Way, Alpine, New Jersey, sworn. DIRECT EXAMINATION BY MR. EDELL: Q. Dr. Sommers, we introduced ourselves off the record but again my name is Marc Edell. 101 I'm an attorney representing the plaintiffs in 11 12 this action. You are here pursuant to a subpoena as a fact witness in this litigation. If you have 13' any questions with regard to this proceeding, I 14i would appreciate it if you would let me know. If 15i any of my questions are unclear, you don't 16i understand them, are unintelligible, tell me and 17 18 19 20 21 22 23 I'll try to rephrase them. Okay? A. Yes. Q. If you don't know an answer, if you don't know the answer to a question, please tell us you don't know the answer to the question. Okay? A. Yes. 24! Q. If you don't recall a particular fact, 25! tell us you don't recall that fact. All right? ~ ~ . waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 l.r = R i i N 014508

Sommers - direct 9 1 A. Yes. 2 Q. Because we will presume that once you 3 answer a question, you understood it and you are 4 accurately responding to it. Okay? 5 A. Yes. 6 ; Q. 9 10 11 12 13 If at any point in time you want to take a break, you want to consult with counsel, please feel free to do so. Okay? A. Yes. Q. A. No. Q. A. Yes. Do you have any questions? You've been deposed before? 14 MR. HARTZELL: Mr. Edell, could I 151 just ask a preliminary question? 16 MR. EDELL: Sure. 17 18 19 20 MR. HARTZELL: With respect to, there are various confidentiality orders and I think, including one in this case. Is it agreeable that this deposition is subject to the same 21 confidentiality orders as our, as the production 22 of documents by the Council for Tobacco Research 231 has been? That's Judge Cowen's order of March 25, 241 '85, I'm informed. - 25' MR. EDELL: Our understanding is that waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR MN 014509

Sommers - direct 10 this proceeding with regard to any particular 2 aspect of this proceeding you can designate it as 3 being confidential. The remainder of the 4; proceeding will not be confidential but all of 5 what occurs during the course of this deposition 6' is subject to the protective order which I guess 7; is Judge Cowen's protective order at this juncture. I 8i If, however, Judge Sarokin rules that Judge Cowen's 9~ order was in any way, shape or form contrary to 10 law or otherwise defective and enters an order i 11I either modifying it or vacating it in total, then 12M we are all subject to Judge Sarokin's order 13i subject to that being appealed to the Third 14! Circuit. i 15i MR. HARTZELL: I understand that and i 16~ as long as we are notified of any application to ~ 17 18 19 the judge to change the current order, that's perfectly agreeable. MR. EDELL: I'm sure that I will make 201 an effort and I'm sure that some of the other 21~ people in this room-will also make an effort to 22~ notify you with respect to that. i 23 MR. HARTZELL: With respect to the 24~ confidentiality designation, I didn't understand 25; what you said there. I don't'think it should be waga and spinelli 405 Northfield Avenue certified shorthand reporters Oet 731a9666N. J. 07052 CTR HN 014510

Sommers - direct 11 1! worthwhile to put in confidentiality requests throughout the course so why don't we treat the 3 ' ~ whole deposition as confidential for the moment I 4 and then we will see. 5 MR. EDELL: It's my understanding, 6 and I don't have the order before me, that you 7 have ten days from the receipt of the transcript, 8 is it, to designate any portion of the deposition 9 as confidential. Is that right, counsel? 10 MR. NORTHRIP: I'm not certain 11 whether that's right but I would be happy to work 12 under that arrangement if it were agreeable with 13 Mr. Hartzell. 14 MR. HARTZELL: Yes, that will be fine. 15 MR. NORTHRIP: I believe the 16 protective order in effect places limitations on 17 the use of any materials in a deposition, whether 18 marked confidential or not. There are certain 19 additional requirements if the materi al is marked i fi l 20 a con dent . 21 MR. EDELL: That's corre ct. That's 22 what I indicated previously. Everyth ing is ~ 23 subject to the protective order and I have to 24 abide by that at this juncture but I believe the 251 protective order requires that is if you want to 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR i [N 014511

Sommers - direct 12 designate something as confidential, you will have to do it within a certain time period from receipt of the transcript. I want to put you on notice of 4 that. MR. HARTZELL: Thank you. I'm on 6•. notice and we are agreeable to that procedure. 8 9 10 11 12 13 14 15 16 I MR. NORTHRIP: Further, Mr. Edell, I have advised Mr. Hartzell and he has been provided with a copy of the discovery orders in this case limiting the scope of discovery as entered by Judge Cowen early in the case and I have suggested to him the scope of this discovery should be limited in the context of that order and I believe you previously agreed with Mr. Rayhill that that would be the case. MR. EDELL: That discovery -- 17 MR. HARTZELL: I think we are talking 18 about the time -- 19 MR. EDELL: The time frame we are 20 talking about? I 211 MR. NQRTHRIP: Yes, the time frame, 221 as well as any other limitations on discovery 23i contained in Judge Cowen's order. 24~ MR. EDELL: If I agreed to it, Mr. i 25; Northrip, then I'll be bound by that agreement. waga and spinelli 405 Northfield Avenue West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 0145122

Sommers - direct MR. NORTHRIP: I was not a party to it. I understood that you agreed to it. MR. HARTZELL: That was my understanding but let's have it -- are you 13 5 ; agreeable? i 61 MR. EDELL: We will work under that I 7~ unless there comes a point in time where it I 8 9 10 11 12 13 14 appears to me that we have to go further than what the order may or may not say on a particular issue and then we can discuss it at that juncture. MR. HARTZELL: That's fine. MR. EDELL: Any other preliminary comments? f MR. HARTZELL: I just, it might help I 15 at this point, I think.I understood you to say at 16 the beginning that Dr. Sommers is here pursuant to 17 subpoena which is entirely correct and just so we 18 have our ground rules understood, he is here as a 19 "fact witness" today and he is appearing as an 201 expert witness on designated days next week. 21 MR. EDELL: That's correct. 22! Q. As a matter of fact, I will show the 231 witness a document we marked as Sommers 1, the i 24; first page of which is-the Notice to Take Oral 25: Deposition of Sheldon C. Sommers, M.D., dated 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201•731•9666 CTR tiN 0 14513

r Sommers - direct 14 1 August 12, 1986 and attached to it is a subpoena 2 and ask the witness whether or not he has ever 3 seen that document. 4 A. (Examining document.) 5 MR. HARTZELL: If I could clarify 6 this, we will stipulate and Dr. Sommers can 7 testify if you want, he got the subpoena. Whether 8 he has seen or received the notice, I don't know. MR. EDELL: He can tell us that. 10: MR. HARTZELL: I don't think that was 11; on the subpoena. 12j A. I have seen the subpoena of which a page is I 131; included in the material you handed me, but so far i 14: as I know, I have never before seen pages one and 15; two which the technical name of which I don't know. 16' It states Notice to Take Oral Deposition, et 17 cetera. 18"i 4• Let's just talk about the third page 19~ of it, Dr. Sommers, of that document, Sommers i 20~ Exhibit 1 for identification. Did you attempt to 21i comply with the subpoena insofar as producing 22! documents here today requested in the subpoena? 23i A. Yes, with the assistance of counsel. 24 ; MR. EDELL:-- Counsel, did you bring 25 those documents with you? , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 !.y TR i i i i 0 14514

Sommers - direct 26 Q. You can look at that. A. It's just a calendar. Q. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 What I'm saying is don't talk because she is taking down everything. So if you want to think to yourself, think to yourself. We don't want you to guess. If there's something you have there -- you are looking through your diary. A. It's not in the diary. I'm looking for a calendar. ~ I ~ Q. You are referring to something, sir? i A. A calendar. Monday, September 29, Tuesday, ~ And yesterday, October 1. Right? And today, October 2? Prior to September 29, do you recall meeting with any attorney involved in the Cipollone case? A. Yes. Q. Let's go back as far as we can in time as to when you recall meeting with them. A. August 14. Q. 1986? 2 5 ; MR. HARTZELL: Sorry, Mr. Edell, I , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 i CTR HN 0 14515

Sommers - direct 27 don't believe that is correct. It may be correct but I don't think that that date has anything to 3 do with the -- A. Pardon me. A mistake. August 18, approximately. Q• 8 9 10 11 12 13 14 15 16 17 18 THE WITNESS: Total. 19 Q. Total? 20 A. Yes. 21j Q. So including September 29, 30, 22 23 Did you meet with any attorney involved in this litigation between August 18, 1986 and September 29, 1986? A. Yes. Q• On what date? A. I can't recall the dates. Q. On how many different occasions? A. I estimate approximately seven working days. MR. HARTZELL: Total? THE WITNESS: Total. MR. HARTZELL: Including the ones you mentioned? October 1, 2 and August 18, 1986, you met with counsel involved in this case on two other 241, occasions. Is that correct? That would give us a 25; total of seven days? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 CTR i ii i014516

Sommers - direct 28 2 A. I j ust don' t recal l. Q• You have no recollection of meeting with any attorneys involved in this case pertinent to the Cipollone case prior to August 18, 1986. Is that correct? A. So far as I can remember. MR. HARTZELL: Mr. Edell, let me just 8) clarify one thing which I should have clarified 91 earlier. When you say attorneys involved in the 10 Cipollone case, I had assumed that since the 111 Council for Tobacco Research had been subpoenaed 12 for documents previously and we had been told at 13i some point this summer that you wanted to take Dr. I 14) Sommers' deposition that you were including I 15; Debevoise & Plimpton, attorneys, as counsel for 16i the CTR and counsel for Dr. Sommers in your group I 177 of attorneys. Were you? t 18` MR. EDELL: I was trying to. Excuse 19' me for the inartful way I posed the question, but 20 yes . 21: MR. HARTZELL: Yes. 22 Q. You understood that, Dr. Sommers? i 23 A. The last exchange I did not understand. i 24; Q. When I asked you whether or not you 25: met with any, you recall meeting with any waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTi_+ i tN 0 14517

Sommers - direct 29 1 attorneys involved in this case prior to August 18, 3 1986, I did not mean to exclude Counsel for the Council for Tobacco Research or your personal counsel. Do you understand that? A. No. May I confer with counsel? 1 6! Q. Yes . Why don' t you do that . 7• MR. HARTZELL: It's okay, counsel. Let's go ahead. We were included in the lawyer. i 9~ I think it will get more and more confusing to the 10 11 witness. 'Q. You are shaking your head. 12~ A. I beg your pardon, Mr. Edell. I didn't 13I understand the exchange between you and Mr. ~ I 14; Hartzell and I didn't understand the last question . i 15 1 you asked me. That's why I wanted to confer with 161 counsel. I 171 Q. Why don't you confer with counsel. 18 19 20 A. It appears unnecessary. Q. I will continue asking you the questions until I get a resolution of this issue, 21 i sir. 22i . (Discussion off the record.) 23i Q. Let me see if I can make it easier 1 241 for you. Do you remember meeting with any 25 attorneys associated with Carter, Ledyard? Are waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR t iN 014516

r Yes, but I'm not certain with reference to the Cipollone case. Q. Do you recall meeting with anyone Sommers - direct 1 you familiar with that firm? 2 A. Mr. Rayhill, a member of that firm? 3 Q. Yes, he is. 4 A. Yes. 5 Q. Do you recall meeting with Mr. Rayhill prio.r to August 18, 1986? 7 A. ?0 10 i from Shook, Hardy & Bacon prior to August 18, 1986 ~ . 111 with regard to the Cipollone case? I 121 A. I don't believe so. 13 ~ Q. I don' t remember the full name of the 14; firm but it's something like Jacob, Medinger & i 15; Finnegan. Are you familiar with that firm? i 16~ A. Yes, but I'm not certain with reference to 17i the Cipollone case. 18~ Q. With whom did you meet from that firm? 19i MR. HARTZELL: What time period are 20~ we talking about now? i 21 MR. EDELL: I'm going to try to 221 figure out whether he met with anybody that he can 23' recall with regard to this litigation. Obviously 24 he has met with people in the past -- I can tell 25 that from documents -- such as Mr. Jacobs years waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731•9666 CTR t iN 0 14519

Sommers - direct 31 and years ago. That's why I'm trying to work it back in time so we can try to reconstruct who he met with at what points in time. MR. HARTZELL: Did you meet with Mr. Jacobs with regard to this case? 6~ A. The answer is no. ~ 7! Q. Did you meet with Mr. Finnegan in 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 regard to this case? A. I believe not. Do you recall meeting with anyone from that firm with regard to this case? A. No . Q. Do you have a personal diary or calendar that you keep? A. Only for things like committee meetings, vacation and professional entertainment receipts. Does your secretary maintain a diary for you? A. No. Q. How do you know what you are going to do for a particular week? A. Well, number one, I remember. Number two, I have my own desk calendar. Q. Would that desk calendar reflect your 25; activities on certain days within the past year? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 Ct R ! l N 014520

Sommers - direct 32 1 A. Yes. 2 Q. Do you maintain these d esk c alendars 3 for prior years? 5 A. Yes. Q. Where do you maintain t hose? 6 A. Well, every past year I keep i n my home. The current year's is on my desk. A Q. Are you going home this No eve ning? 10 . . Q. So we don't have any way to pick 11 those up this evening. You've been deposed before. 12 You told m e that, right? 13 '; A. No, I didn't tell you because the question 14; and answer , then, were interrupted. 15! Q. I thought we had established that I 161 earlier in the deposition but if I' m inc orrect, 17~ I'll ask the question now. Were yo u eve r deposed 18 f I previously ? 19 ~ A. Yes. ~ 20i Q. In what matters were y ou de posed? 21I A. The first time that I recall was i n a i 22; medical malpractice case and that w as so me years 23 o ~ ag . 24! Q. Have you ever been dep osed in 25 litigation brought on behalf or by people who 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201•731•9666 i 1__r i R t iN 014521

Sommers - direct 33 1 claim to be injured as a result of their cigarette 2 smoking? 3 A. Yes. Q. In which cases have you been deposed in which that has been the allegation? 6 A. The cases are usually known by the name of 7; the complainant and in the Galbraith case, I was 8 i deposed. 9i Q. Do you recall being deposed in any 10+I other such case? 11 12 A. Yes. Mr. Hanks had me give depositions in two Texas cases. The names of the complainants I 13; forget. i 14; MR. HARTZELL: It's one deposition in i 15 Houston, two cases. 16I Q. Do you have the deposition transcript i 17'; in either or both of those proceedings? i 18i A. The transcript of the latter deposition is 19~ available. ~ 20! Q. When you say available, what does ~ 21 that mean? 22 A. That means that counsel either has provided 23: it or can provide it. 24' Q. Did you review that transcript prior 25 to today's deposition? waga and spinelli certified shorthand reporters 405 Nonhtield Avenue West Orange. N. J. 07052 201-731-9666 1.~ i~+ t i i i ~,r~ 14522

Sommers - direct 34 1 A. No. Oh, yes, pardon me, yes, I did. 2 Q. Did you review it in preparation for 3 today's deposition? 4 A. Yes. 5 7 Q. When'did you review that transcript? A. A couple of weeks ago. Q. Did your review of that transcript refresh your recollection in any way? MR. HARTZELL: I object to that 101 question. I'm not going to let him answer. 111 That's to-o broad a question. It's not a fair 12; question. I direct you not to answer that. I ask I 13j you to reframe that. I 14; Q. When did you review that transcript, i . 15 i sir? 16~ A. It was, to my memory, the weekend before 17 ; last . i 18; Q. Did anyone tell you to review that 19i transcript or suggest that you review that 20 1 transcript? ~ 21; A. It was provided to me by counsel in addition 22i to some other material responsive to the 23~ requirements of the subpoena. 24' Q. When you say by counsel, do you mean 25 Mr. Hartzell? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 tr i 1"+ i i i i 0145L ti.7r

Sommers - direct 35 1 MR. HARTZELL: Well 2 3 Q. Who do you mean by counsel? MR. HARTZELL: He means me. MR. EDELL: You can't have it both ways, Mr. Hartzell. You can't object to it and then you can!t answer the question at the same time. 81 MR. HARTZELL: Sure I can. I just 1 9! did it. I've just done it. 10 11 MR. EDELL: I guess you can. Q. Who provided the transcripts, sir, 12 regarding the matter in which you were deposed by 13I Mr. Hanks, is it? 14; A. Yes. Mr. Hartzell through the firm of i 15 Debevoise & Plimpton. 16I Q. Did he provide you with any other 17 documents to review pertinent to this deposition? 181 MR. HARTZELL: Asked and answered. 19 20 21 He just said that. A. I have already reviewed all of the documents included under Sommers Exhibit 4. 22 i Q. Did your review of any of the 23 documents marked Sommers Exhibit 4 refresh your I 24' recollection with regard to any particular facts? 25; MR. HARTZELL: I-object and instruct waga and spinelli certified shorthand reporters 405 Nonhiield Avenue West Orange. N. J. 07052 201-731-9666 C1 R t i N 0i46L• ";

Sommers - direct 36 the witness not to answer the question. I don't think that's a fair question, counsel. I think 3 you have to be a little more concrete. 4 MR. EDELL: My acquiescence to your 5I, objection does not mean that I-- 6' MR. HARTZELL: I understand but I 7; think it's a valid objection. You can't give him i 8~ a bunch of documents and say, Does this refresh 9 10 11 your recollection on any particular fact. Q. Let's do it this way, the more laborious but more preferable to counsel. Let's 12 start with the first page of the documents that 13 you reviewed and tell me for each such page 14 whether or not it refreshed your recollection with 151 regard to any particular facts. 16 17 18 MR. HARTZELL: I don't think that that's a proper form of inquiry and I will instruct him not to answer the question. That 19I isn't a fair way to go about this, counsel. it 20I doesn't get anywhere. 21 1 MR. KATZ: I join Mr. Hartzell's 22~ objection. 23I Q. When was the first time you looked at 24!: the document which is the first document of those 255 documents which we marked as Sommers 1 for waga and spinelli 405 Northfield Avenue West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 014525

Sommers - direct 1 identification? 2 A. Yesterday. 3 to? Q. 37 What does that first document pertain 5 A. Subject to the page numberings of the court reporter not yet accomplished, it is a photocopy of a telegram of June 17, 1970 to Mr. Thomas Hoyt. 8!, Q. What is the subject of the document? 9~ A. It refers to a cable to Dr. Auerbach I 10i concerning invitation for review of experimental 11; material and a response made to that invitation. 121 Q. Did your review of that document 131 yesterday refresh your recollection with respect i i 14i to Dr. Auerbach inviting you to review certain i 15; materials pertinent to his publication in 1970? i 161 A. No, this document did not. 17 18 Q• Did any of the materials refresh your recollection in that regard? 191 A. Any of the entire material submitted? 20i Q. That's right, which we marked as 21 ; Sommers 4 for ident,ification. 22j A. Pardon while I look through. 23 THE WITNESS: Please read the 24i question back. 25 (Question read.) waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR i i i i 014,..s 2G

r 2 you to review any of his materials. Do you In regard to Dr. Auerbach inviting 3 Sommers - direct 38 understand that, Dr. Sommers? A. Yes . MR". HARTZELL: He just wanted to be reminded of the question. MR. EDELL: I just wanted to be sure. He nodded his head and I wanted to be sure there 9; was an affirmative statement to the record. ( 101 MR. KATZ: While the witness is 11i examining the materials, please note my objection 121 to the form of this question and of previous 13 1 questions. It is peculiar to ask a witness i 14i whether material refreshed his recollection about i 15i something about which there had been no indication 16i that he ever had any failure of recollection. I 17! Counsel I suppose is entitled to conduct his I 181 examination in a manner that seems most efficient 19~ but this hardly seems a productive way to get the ~ 20 facts. i 21; MR. EDELL: Thank you, Mr. Katz. 22`; A. (Examining documents.) The answer is no. 23' Q. Prior to your review of the documents 24 which have been marked as Sommers 4 for 25; identification, have you a recollection of Dr. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR MN 014527

Sommers - direct 39 Auerbach inviting you to review this material? 3 Have you ever forgotten that Dr. A. Yes. Q. Auerbach had invited you to review his materials pertinent to his 1970 publication? MR. HARTZELL: I object and instruct 7' the witness not to answer the question. Counsel, 8i what kind of a question is that? i 91 MR. EDELL: Are you going to direct 10 11 him not to answer the question? MR. HARTZELL: Yes. I think this is 1 12 1 getting a little bit cockeyed. i 13I Q. Dr. Sommers, have you ever had to i 14~ refer to any materials to refresh your 15 recollection as to whether or not Dr. Auerbach 16i invited you to review the materials pertinent to 17) his work published in 1970? 18~ MR. HARTZELL: Go ahead. It's 19 objectionable but go ahead. Have you ever had to 20~ review anything to refresh your recollection? I 21 ~ A. Yes. I 22~ Q. When was that? 23; A. It was as a part of the deposition by Mr. 24 Hanks. 25 Q. Did you produce the deposition given waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 1.r t R MN 1 0145228

Sommers - direct 40 1 by you in the matter in which Mr. Hanks was 2 involved? MR. EDELL: ~ Could we have that here? 8 9 10 11 12 13 14 i MR. HARTZELL: No. MR. EDELL: Is there a reason why you haven't produced that? MR. HARTZELL: Yes. MR. EDELL: May I have that reason? MR. HARTZELL: Yes. As I understood it, it was outside the time period of the discovery and that's the reason. MR. EDELL: 1970 is outside the time period? MR. HARTZELL: No. The deposition 15i was outside the time period. 16i MR. NORTHRIP: The deposition was I 17~ taken after January 1, 1982. 18f MR. EDELL: Is it your position that 19 if this witness made statements pertinent to ~ 20j matters which occurred during the time frame which 21; Judge Cowen indicated is relevant to this case but 22 those statements were made subsequent to that time I 23 period that those statements are not discoverable? I 24i MR. NORTHRIP: Mr. Edell, the scope 25; of discovery is not tied to whether a statement 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 1..r = R Hi -i 014529

Sommers - direct 1 refers back ':o aparticular time period. The 41 2 scope of discovery is tied to a time period and 3 relates to documents and materials developed after 4 that time period. The deposition you are 5 referring to was taken after January 1, 1982 and is not properly within the scope of the materials that are discoverable in this case. MR. EDELL: Just so I understand, it's your position that even if this witness 10~ related facts pertinent to the time period 11j indicated in Judge Cowen's order during the course I 12I of a deposition taken subsequent to the time frame 13 of Judge Cowen's order, then those statements are 141 not discoverable? Is that correct? 151 MR. NORTHRIP: Those statements taken 16 17 18 19 at a deposition after January 1, 1982 are not within the proper scope of discovery. MR. EDELL: I think that's outrageous, Mr. Northrip. 201 MR. NORTHRIP: I think that's the 21' ruling that Judge Cowen made and I certainly don't 22: think it's outrageou's. I think Judge Cowen i ~ 23i recognized and you put some limitations on 24 discovery and he made his order relating to 25 material after January 1, 1982, material that waga and spinelli 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 014530

r Sommers - direct 42 1 would be developed after Mrs. Cipollone had 2 stopped smoking and had already been diagnosed as 3 having cancer. 4 Q. Just so the Court will have a record 5 of what that deposition did and did not pertain to, Dr. Sommers, did that deposition encompass questions or encompass subjects or events which occurred during the time-frame 1942 through 1982? 9~ A. I don't know about 1942. It included 10~ occurrences before 1982. i 11! Q. Did it include events occurring 12i during the time frame that you began your 131 association with the Council for Tobacco Reseaich? 14 ' A. Yes. 15! Q. That began in 1966? 16! A. Correct. 17' Q. Did it continue to cover events from 18 1966 through 1982? ~ 19 ! A. No. 20i Q. What was the time frame in which the 21: deposition sought to ask inquiry of? 22 A. Not through much, if any, of 1982 but up to 23 the time when the deposition was made. 24: Q. When was the deposition made? 25 A. I don't remember. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR t iii 01453*1

r Sommers - direct 43 1; Q. Did it pertain to events that 2' occurred in 1968, '69, '70? 3 A. In a ll likelihood,• yes. 1970 th h 1980? 4 Q. roug A. I ju st don't remember. 61 Q. 1970, you know that, we already I discussed Dr. Auerbach, right? Y A . es. Q. 1971, did it include that? 10 A. I ju st don't remember. 11! MR. NORTHRIP: Mr. Edell, you're 12 getting in to the substance of the deposition and 13 it's our position that with the scope of the order, 14 it is not appropriate for discovery and it seems 15 to me you have gone far enough to make a record so 16 I would object to any further inquiries on this 17 line. 18 Q. The deposition in Galbraith, have you 19 d th t? d a uce pro 20 A. No. I do not have a copy of that. 21 Q. You don't know whether your attorney 22 does. Is that correct? 23 1 • A. No, I don't know. 24 Q. You were not shown that deposition in 25 preparation for today's proceedings? 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731•9666 1__. i R Mi 'i « 1Z' S32

r Sommers - direct 44 1 A . No . 2 MR. EDELL: Mr. Hartzell, it is 3 impossible for me to inquire of this witness in 4 any way, shape or form as to whether or not the materials which.you provided him, including the transcript of the deposition which he says was 7 taken by Mr. Hanks, refreshed his recollection. i Certainly if this witness' recollection was 9'; refreshed by a review of documents, I'm entitled 10, to see those documents regardless of whether or 11i not ttiey are subject to the discovery as indicated i 12 by Mr. Northrip. I 13~ MR. HARTZELL: I agree with you. 14: MR. EDELL: How is it if I can't 15 examine-him on the transcript itself and you will 16' not permit him to answer the question as to 17~ whether or not his review of the transcripts 18I; refreshed his recollection in any way, how can I i 19f determine whether or not in fact any particular 20! question or any particular fact was part of 21, refreshing his recollection with regard to this 22', deposition?. 23; MR. HARTZELL: I didn't follow your 24 question but I get your meaning. 25 MR. EDELL: Let me make it simpler. w a9a and $plnefll 405 Northfield Avenue West Orange. N. J. 07052 certified shorthand reporters 201-73,-9666 CTR HN 014533

Sommers - direct 45 1 MR. HARTZELL: I understand your 2 meaning. My objection to this business about 3 81 9 10 11 12 13 14 refreshes his recollection is it's just too sweeping and it's not a proper question. With respect to the Duke and Rogers case deposition, Mr. Hanks' deposition in the Duke and Rogers case, I agree with you that if he used that in preparation for this deposition, you are entitled to it. MR. EDELL: Where is it? MR. HARTZELL: You didn't ask for it under that basis. All we said was that it was outside of the scope of the subpoena. MR. EDELL: I'm still entitled to it. 15~ If it's part of the subpoena and he reviewed it, 16I then I'm entitled to it. i 17~ MR. HARTZELL: You are entitled to it 18 19 20 if he reviewed it which in fact he did but you are not entitled to it under the subpoena. MR. E.DELL: May I have it? 21i MR. HARTZELL: Yes. I 22i MR. EDELL: Thank you for expediting ~ 23 ! this. 24i MR. HARTZELL: Counsel, there are, 25 the CTR and Dr. Sommers are not parties in this waga and spinelli 405 Northfield Avenue West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 014534

Sommers - direct 46 1 case but we understand there's a whole history of 2 the discovery limitations of this case which is, 3 which has accorded rights and so forth to both 4 sides and we are not, we are trying to stay within 5 those as we understand and as I think you 6 understand. MR. EDELL: Not as I understand them. 8! As Mr. Northrip understands them. i I 91 MR. HARTZELL: But with respect to 10 I what he looked at in preparation for his 11; deposition, you are entitled to that. 12j MR. NORTHRIP: I might add, Mr. Edell, 13~ you never until today expressed any difference of 14i opinion as to whether or not the order which said I 15j January 1, 1982 excludes from its scope everything 16I after January 1, 1982 that might in some way refer 17~ back to the earlier time period which would make 18 19 it a meaningless order if that interpretation were accepted. 20 1 MR. EDELL: I disagree with your 21; statement, Mr. Northrip. 22 MR. NORTHRIP: The entire statement? 23 MR. EDELL: Certainly if a document 24', reflects something that is occurring post 1982, it 25 may not refer to any events prior to 1982. On the waga and spinelli 405 Nonh+ield Avenue certified shorthand reporters 0e1 731a9666N. J. 07052 CTR HN 01453*5

Sommers - direct 47 1 contrary, a document which is prepared or a 2' deposition, for instance, which is given in 1983 33 may have nothing to do with 1983 other than the 4' fact that it's taken during that time frame and ~ 5; may in fact only pertain to a time frame that's 6! relevant to this litigation. ; 7 MR. NORTHRIP: We obviously have a ~ 8) very different interpretation of the meaning of 9 10 11 12 13 14 15 16 17 18 19 20 the order. MR. EDELL: I would come to that same conclusion. MR. HARTZELL: (Producing.) MR. EDELL: Thank you. Is there a volume two to this? MR. HARTZELL: There's both there. MR. EDELL: Would you mark that for identification, please. (Sommers Exhibit 5 marked for identification.) Q. Dr. Sommers, we have marked as 21; Sommers Exhibit 5 for identification the 22; transcripts of a proceeding which you have 231 referred to and which your counsel has been kind 241 enough to furnish. Would you please tell us 25 whether or not those two volumes represent the waga and spinelli 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 014536

r 8 Are you finished looking at it? Dr. Sommers, you told us you met with 9 10 11 12 13 14 15 16 17 Sommers - direct 48 transcript that you referred to previously? A. So far as I can tell after examining the document, yes. counsel involved in this case and that would include your attorney and attorney for Council for Tobacco Research back on September 29, 1986. Was there anyone present other than counsel for the Council for Tobacco Research? A. Mr. William Shinn was present, Mr. Edward Roth was present. Possibly part of the day another person may have been present. I can't remember for sure. MR. HARTZELL: Mr. Edward Roth is associated with Debevoise & Plimpton. 18I MR. EDELL: We introduced ourselves 19 prior to the deposition. 20 MR. HARTZELL: So the record is clear, 21j Mr. Edward Roth, who was just referred to by Dr. i 22! Sommers, is associated with the firm of Debevoise 231 & Plimpton, counsel for the CTR and Dr. Sommers. 1 241 Q. With whom did you meet on September 25 30, 1986? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201•731•9666 CTR MN 0141S3i

r Sommers - direct 49 1 A. With Mr. Hartzell, Mr. Roth, Mr. William 2 Shinn and with Mr. Northrip. 3 Q. With whom did you meet on October 1, 1986? A. Same individuals. Q. With whom did you meet on August 18, i 1986? I A. With Mr. Hartzell and with Mr. Koeltl. 9i Q. With whom did you m eet on October 2, 10 1986 prior to this deposition? 11 MR. HARTZELL: You mean this morning? 12 1 MR. EDELL: Yes. 13i A. With Mr. Hartzell, with Mr. Roth, with Mr. 14I; Koeltl, with Mr. Northrip, with Mr. Sirridge and 15) with the. gentleman there with the beard. I 16 Q. Mr. Parrish. 17 A. Yes. 18 Q. Do you recall meeting -- 19 i MR. HARTZELL: I would like the I 2 k d 0 i recor -- o ay. i 21 MR. EDELL: You've been doing enough i 22 testifying, counsel. You can keep testifying. i 23~ MR. HARTZELL: It's all right. 24~ Q. Do you recall meeting with any 25 attorney involved in this case on September 9 or 405 Northfield Avenue waga and spinelli West orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 01453e

r Sommers - direct 50 1 September 10, 1986? 2 A. I don't remember. 3 Q. I will show you two documents, one of which has been marked as Sommers 2 for identification and the other, Sommers 3 for identification, and see if it refreshes your recollection. A. (Examining documents.) 9 ; Q. 10 11 12 With regard to the meeting on September 9 and September 10, 1986, were any attorneys involved in this case? A. The letter, Sommers Exhibit 2, indicates 13 that you made a telephone call to contact me on 14i September 9 and on that day, I did meet with Mr. 15 ~ Hartzell and Mr . Koeltl . 16i Q. I don't want to know what the letter 17f says. I want to know whether it refreshes your 18 19 20 memory with regard to meeting with any attorneys in this case on September 9, 1986 involved in this case. 211 A. No, it doesn't, except insofar as the 22', substance of the letter, if trustworthy, indicates 23; that you made an attempt to contact me on I 24~ September 9. 25 Q. But you don't remember meeting at the waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 !.r i R i t i't 014539

.1 Sommers - direct 51 Council for Tobacco Research with Mr. Hartzell and Mr. Sirridge. Is that correct? MR. HARTZELL: He said he met with me. MR. EDELL: I don't think that's what he said. Let's see if we can get it straight. Q. On September 9, 1986, do you remember 7!1 meeting with Mr. Hartzell? 8 9 10 11 12 13 A . Yes . Q. Do you remember meeting with Mr. Sirridge, Mr. Sirridge, the gentleman over to the right with the gray hair? A. I don't recall Mr. Sirridge. I do recall Mr. Koeltl. 14I Q. Do you recall meeting with anyone i 151 else other than Mr. Hartzell and Mr. Koeltl on 16 17 September 9, 1986. A. Yes. Based on Exhibit 2, no, not lawyers. 181, Q. No, not lawyers. Who other than 19 20 lawyers did you meet with on September 9, 1986 pertinent to this case? 21i A. No one pertinent to this case. ~ 22i Q. Excuse me for being overcautious. Do 23I you recall meeting with any attorneys involved in 1 241 this case on September 10, 1986? i 25'. A. I believe not. I waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR H{i 014540

r Sommers - direct 52 A review of those do 1 Q ent d ' . cum s oesn t 2 refresh your recollection in that regard? 3 A. (Examining documents.) Well, the letter 4 states on September 10 I received a telephone call 5 from Willi.am Shinn who advised me of his intent to 6' continue the meeting with Dr. Sommers, et cetera. 7 I don't recall the meet ing, if any, of September 8 i 10. i 9j Q. Do you rec all Mr. Hartz ell showing 10i you Sommers 2 for identification? 11 j A. Yes. ~ 12j Q. Do you rec all seeing Mr . Hartzell's ~ 13 ~ response whic h we marke d as Sommers 3 for 14 ' identificatio n? i 15 ! A. Yes. 16~ Q. Does Mr. Hartzell's response which ~ I 17~ has been marked as Somm ers 3 for identification, ~ 18~ is it consistent with y our desire not to meet with 19( me in regard to this litigation? i 20~ MR. HARTZE LL: I object and instruct I 21' the witness not to answ er the question. What does I . 22;that have to do with th is, dealing with counsel? i 23; Are you challenging my letter to you? Is that the 24 i idea? 25 MR. EDELL: I just want to make sure 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR MN 014541

r Som:ners - direct 53 1' we have it straight. 2 3 8 9 10 11 12 13 14 15 16 MR. HARTZELL: I don't see that it's pertinent. Q. Did anyone communicate with you my desire to meet with you as a treating physician for Rose Cipollone? A. No. Q• Will you meet with me informally, sir, with your counsel to discuss your treatment of Rose Cipollone? MR. HARTZELL: Just a minute. I will instruct the witness not to answer the question. If you want to meet with Dr. Sommers, you deal with me. I'm his counsel. We already discussed it, you and I, and we have had an exchange of correspondence on it. You are loading your 171 questions with certain frames of reference that I 1 18 think are wrong and I'm not going to let this 19 witness answer about whether he will meet with you. 20 I'm his lawyer and if you want to deal with him, 21; you talk to me. It's not a proper subject for I 22~ this deposition anyway. 23~ Q. Are you paying Mr. Hartzell? 24 ~ A. No. I 25 Q. Did you retain Mr. Hartzell as your ~ waga and spinefli , certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201•731•9666 CTR HN 014542"

0 Sommers - direct 54 1 lawyer? 2. A. He is my lawyer as an individual in respect 33 to this deposition as a fact witness in the case 4 f Ci ll o po one. 5 Q.- When you say as a fact witness in the 6~ case of Cipollone, are you referring to facts pertinent to your acting as a treating physician 8~ for Rose Cipollone or your participation in the 9 I Council for Tobacco Research? 10 MR. HARTZELL: Counsel, I'm going to 11~ instrtict ~the witness not to answer the question. 12I I'm telling you on the record that I represent Dr. ~ 13~ Sommers individually in connection with the 14 Cipollone case, period, and, therefore, if you 15j want to•deal with him in connection with the 16I Cipollone case, you deal with me. It' s not a 17 I proper subject for this deposition and you are ~ 18 1 just badgering the witness and trying to make 19 artificial distinctions that will confuse the 20 witness. 21 1 MR. EDELL: I think it's relevant to 22 1 find out whether the witness is willing to meet 23 1 with me in his capacity as a treating physician 24 with the appropriate medical authorization 25` executed by Antonio Cipollone. 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201•731•9666 CTR MN 014543

r 1 Sommers - direct 55 MR. HARTZELL: All the premises of 2 your questions and characterizations are 3 challengable and I'm telling you I'm his lawyer in whatever capacity you may be thinking of and I'm not in any respect defining his capacity and if you want to.meet with him, you deal with me. MR. KATZ: I would suggest there's an ethical issue raised with an attempt to circumvent 9! counsel or a person who is represented by counsel. i 101 MR. EDELL: You file the appropriate I 11i complaint, then, Mr. Katz. i 12~ MR. HARTZELL: I told you, Mr. Edell, I 13; when you called Dr. Sommers the first time on the I 14 ninth of September that I represented him and that 15; you should deal with me. 161, Q. Have you met with any attorneys 17 18i and treatment of Rose Cipollone? 19i MR. HARTZELL: I'll object to that ; 20~ characterization. i 21 MR. EDELL: Let's start from square 222 one, then, counsel. i 23' MR. HARTZELL: Mr. Edell, is this an 24 expert deposition? 25 involved in this litigation in regard to your care MR. EDELL: No. .It's a fact waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014544

r Sommers - direct 56 deposition. MR. NORTHRIP: How is the care and treatment of Mrs. Cipoll'one within the scope of a fact deposition in this case? I understood the fact deposition related to Dr. Sommers' 61 involvement with CTR. ~ 7~ MR. EDELL: The fact deposition can i i 8i relate to any facts relevant to this litigation 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 other than his opinions as an expert witness in this case. He is a fact witness concerning the care and treatment of Rose Cipollone. Let's find out on the record so the judge who is reviewing this mattei will find that out. MR. HARTZELL: Let's do that. Let me just state on the record the ground rules that I thought we had set this deposition up on. Dr. Sommers is employed by the Council for Tobacco Research. He was also at Lenox Hill Hospital and, therefore, has a connection with the Rose Cipollone matter. Your characterization of him as a care and treatment of Rose Cipollone as if that had been established is improper. The best way to proceed with these depositions and what I 241 understood was the way it was going to be done, 25; that this week's sessions were Dr. Sommers as a waga and spinelli certified shorthand reporters 405 Nonhfield Avenue West Orange, N. J. 07052 201-731-9666 CTR Hi i 014545

r So:nmers - direct 57 1 fact witness basically in connection with the 2 Council for Tobacco Research, that next week was 4 his expert capacity. Now it is, there is a line to be drawn as to when you get to the factual basis on which his expert opinion appears and so forth. We have to draw that line somewhere. MR. EDELL: I'm not asking him anything about what his factual basis for his 9~ opinions are. i 10~ MR. HARTZELL: You asked did you do 11; thus and so as the care and treating physician. 12 That's never been established at all. Why don't 13~ you ask him what he did and then we will draw the I 141 appropriate line. Don't ask a question that's I 15i loaded with characterizations that are inaccurate. 17! for the care and treatment of Rose Cipollone? 16 18 19 Q. A. In the medical sense, the answer is no. Q. Were you ever a physician responsible Did you ever participate in the 201 diagnosis of Rose Cippollone's disease during the 21 22 period of time that she was being treated at Lenox Hi11? 23 A. Yes . ~ 24i Q. When did that occur? 25 A. It occurred in 1981. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 Ci R i ii i 014546

. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Sommers - direct 58 Q. What is your recollection of your participation in the diagnosis of Rose Cippollone's disease in'1981? MR. HARTZELL: Are you asking him what did he do? MR. EDELL: That's correct, factually. MR. HARTZELL: Factually what did you do, not what you did diagnose, what did you do? A. I examined material from a surgical operation of Mrs. Cipollone, described the microscopic appearances and made a diagnosis. Q. How is it that you came to review Rose Cippollone's case? A. I was that day the responsible pathologist for diagnoses. Q. Did you have any discussions regarding your diagnosis with anyone else at that time? MR. NORTHRIP: I object to that question. I think this is into the area of expert deposition and we deposed Dr. Horten, who you 22, listed as an expert, whose role is comparable to 23i what you are examining right now and at the 24I insistence of Ms. Walters, we paid for his time as 25; an expert and I think as we move any further into , waga and spinelli certified shorthand reporters 405 Nonhfield Avenue West Orange. N. J. 07052 201•731-9666 L+ TR l i i; 014S417

I Sommers - direct 59 1 this area that you've already gone, you are in 2I effect taking an expert deposition without meeting 3 the requirements that your office has established 4 for the taking of an expert deposition and I think 5: those questions should be held until next week and 6i 1 I object to them as a part of this deposition. 7! MR. EDELL: They are only fact 1 81 questions, counsel. 9 10 11 12 13 14 15 16 17 18 19 MR. HARTZELL: But I agree with this delineation. There are certain fact questions that are,questions for an expert and in an expert's capacity that you can't inquire of an expert without getting into the facts of what he looked at and that's really next week's deposition so I'm not going to let him today or this week at this fact deposition get into his work as a pathologist at Lenox Hill Hospital in connection with Rose Cipollone. MR. EDELL: You won't let him answer 20) the question with regard to whether he had any 21! conversations with anyone at that time? 22~ MR. HARTZELL: That's right. I think 23 24 that all goes right into the diagnosis. It's inextricably intertwined with the inquiry of Dr. 25 Sommers as an expert witness in connection with waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 Lr TR i i i i 014S48

f 2 Sommers - direct 60 his expert work as a pathologist in this case. MR. EDELL: You mean acting as an 3 expert witness on behalf of the defendants in this case, is that correct, as opposed to a pathologist who reviewed the slides at the time that care and treatment was being rendered to Rose Cipollone while she was at Lenox 8 9 10 11 12 13 14 15 16 17 18 19 Hill Hospital? MR. HARTZELL: Those are inseparable. They are the same thing. MR. EDELL: I don't know about that, counsel. MR. NORTHRIP: Mr. Edell, are you willing to say that any of your experts such as Dr. Ratner, Dr. Horten, Dr. Schuman, Dr. Hamill, that counsel from your office have designated as being fact witnesses as well as experts, that the portions of the fact deposition we should be entitled to our money back that we paid them as experts? We haven't tried to play this game of 20 separating facts from expert depositions but I 21 think insofar as you have, that you should limit 22" your examination today to Dr. Sommers' activities 23) unrelated to the care, treatment and diagnosis of I 24I Rose Cipollone because I think that's appropriate 25 for expert deposition which has been scheduled for , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 tr iR t i i i 014549

I Sommers - direct 61 next week and for which Magistrate Hedges h as generally set up and Mrs. Walters has est ab lish ed and we have agreed to abide by are follow ed . MR. EDELL: I think it's an ac adem ic discussion because Mr. Hartzell won't let h im answer the question anyway. 7 MR. HARTZELL: But I think t ha t's a ~ 81 valid distinction to be drawn here and I th ink it 9 was the one we had drawn setting up these t wo 101 s iti d . epos on 11 Q• Sir, are you under any physi ci an's 12 ? care 13 A. Not presently. 141 Q. Do you take any medications? 15 A Yes . . 16 Q. What medications? 17 A. Well, I take aspirin and Allopurino l . 18 Q. Is there any physical or men ta l 19 problem that you have which you feel might inhibit 20 your ability to fully and accurately resp o nd to 21 : questions during the course of this depos i tion? 22 No A . . 23 Q. Let's go through some backgr o und 24 i i information for a while and I think that w ill 25' probably be the easiest thing to do at t hi s 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR i ii i 014550

r Sommers - direct , 1 juncture. I've been furnished with your 2 curriculum vitae so I think we could probably 62 3 facilitate this part of the deposition if I ask 8 10 11 12 you the following types of questions. You were at New England Deaconest Hospital. Is that right? A. Correct. Q. From 1946 through 1950. Is that You were there longer than that? A. Both longer and shorter. Q. Let's do it this way. You were 131 practicing pathology in Massachusetts from 1947 14! through 1960. Is that correct? i ~ 15 A. No. 161 Q. 1961? 17; A. No. The first date is incorrect. I 181, Q. When did you start practicing in 19 Boston, sir? 20~ A. When my residency began, April 1, 1946. I 21; Q. From April 1, 1946 until what date 22j did you practice in Massachusetts? ~ . 23 i A. August 1961. i 24~ Q. Then you went out to California. Is 25 that right? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR i iN 014551

f Sommers - direct 63 1 A. Correct. 2 4 7 Q. At Scripps Memorial Hospital? A. Correct. Q. Can you tell us why you went out to Scripps Memorial Hospital? A. I believed that California was the land of the future, of promise and beauty. Q. Those expectations lasted for two 9 ~ years? i 10 1 A. 11 12 Yes . Q- And then you decided to come back to the East Coast? 13 ! A. Yes . I 14; Q. You came back to New York City? 15i A. Residence in New Jersey. 16~ Q. You practiced in New York City? 17' A. Yes. 18; Q. The Francis Delafield Hospital? 20 11 Q. As an associate pathologist? Is that 19 A. Correct. 21 i right? 22, A. Associate director and later director. 23' Q. You were associate director from what 24~ date to what date? 25 A. From 1963 to 1967. , waga and spinelli certified shorthand reporters 405 Northfield Avenue West orange. N. J. 07052 201-731-9666 Ci R t i i'i 0.L 4+-s ,..f L.

r Sommers - direct 64 Q• What happened in 1967? A. The director retired and I became director. Q. How long did you remain dir ect or at Francis Delafield Hospital? A. 1967 and part of 1968. 6` Q. Give me the precise time fr ame that I 7i you were the director at Francis Delafie ld 8 Hospital . 9 A. I don' t recall. 10 Q. You don't recall? 1 ' 1 No. , A. 12 Q. Do you remember when you le ft Francis 13i Delafield Hospital? 14~ A. I recall approximately when I star ted in my 15 osition next p . 16 Q. At Lenox Hill Hospita l? 17 A. Yes. 18 Q. When wa s that? 19 A. May of 1968. 20 Q. You wer e appointed to the Scie ntific 21 Advisory Board in Ju ly of 1966. I s tha t c orrect? 22 A. The documents included in Ex hibit Som mers 4 i i 23 cate that. nd 24 ( Q. Is that consistent wi th yo ur ~ 25; recollection? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 tr i R t i i i 014553

f Sommers - direct 65 A. I would not independently recollect. Q• 3 7 8 9 10 11 12 131 Scientific Advisory Board I became the director of i 14~ laboratories at Lenox Hill Hospital. If I misunderst~od I 15I your question, then my answer may have been incorrect.l 16 17 18 19 20 21 221. Council for Tobacco Research that you became 23 Scientific Advisory Board were you appointed to the position of director of pathology at Francis Delafield Hospital? A. July of '66 to '67 is one year and '68 is two years minus two months, so 22 months. Q. I thought you said that you became the director of pathology at Francis Delafield in 1967. Is that right? A. Well, if I understood the question, you asked me how long after I became a member of the How long after you joined the Q. Maybe I just was one step ahead of myself and I'm sorry. i i MR. HARTZELL: Mr. Edell, what i difference do these months make 20 years ago? Q. How long was it after you were appointed to the Scientific Advisory Board of the director of pathology at Francis Delafield i 24! Hospital? ~ 25 MR. HARTZELL: It's director of ~ waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 CTR t iN 014554

I Sommers - direct 66 1 laboratories. 2 A. Approximately one year. 3 Q. It was 22 months after your 4 appointment to the Scientific Advisory Board of 5 the Council for Tobacco Research that you became director of laboratories at Lenox Hill Hospital. Is that correct? A. Yes, approximately. Q. How is it that you decided to go to 10i Lenox 1 Hill Hospital? lli A. They needed a director of laboratories, 12 interviewed a large number of candidates and 13 selected me. 141, Q. Who was involved in that process at 15; Lenox Hill Hospital? I 16i A. It's called a medical board. 17i Q. How long did you remain as director 18 19 of laboratories at Lenox Hill Hospital? A. Until the end of August, 1981. 20I Q. Did you still retain a position at 21; Lenox Hill Hospital after that point in time? 22 A. Yes. 23j Q. What position was that? 24~ A. I'm called consultant in pathology. 25: Q. What are your responsibilities as waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 I i CTR t iN 014555

r Sommers - direct 67 1I , consultant in pathology? 3 A. To assist the new director of laboratories in any way that he sees fit. Q - 9 10 11 12 13 How is it that you came to be associated with the Scientific Advisory Board of the Council for Tobacco Research? A. Approximately in 1965 because of some of my research work. I was invited to give a talk at a meeting of the Scientific Advisory Board. Q. What particular work are you referring to? A. I have been interested for some 35 years in what are called host factors in cancer. 14) Q. Could you define for us what you mean 15 16 17 18 19 by host factors? A. In various malignant tumors, a susceptibility or lack thereof may be based upon inherited constitutional or genetic characteristics. 201 Q. Had you written on that subject prior 21! to 1965? 22 i A. Yes . 23 24 Q• Who invited you to speak at this meeting in 1965? 25' A. Dr. C. C. Little. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTi,,. t iN 014556

I 1 Sommers - direct 68 Q• Had you had any contact with Dr. Little prior to 1965? 3 A. Yes. Q• I first met him in the summer of 1936. Did you continue your relationship with him from that point in time forward? 6' A. No. It was not a continuous relationship. 7; Q. What was your relationship with Dr. 8~ Little in 1936? 9 10 11' investigate breast cancer in mice and that was the 12 place where inbred mouse strains were available 13i and I needed to know which strains of mice to 14I purchase, what kind of cages to use, food and 15 water and housekeeping of a mouse colony and it i 16~ was Dr. Little who was the director. 17 18 19 20 21 A. I visited the Bar Harbor Laboratories because I wanted my own mouse colony to Q. Subsequent to 1936, did you have any contact with Dr. Little prior to 1965? A. I don't recall any. Q. Prior to 1965, did you have any contact with anyone, other than Dr. Little who was 221 associated with the Council for Tobacco Research? I 23; A. Not that I recall. i 241 Q. These papers that you say you wrote 25' regarding host factors in regard to cancer genesis, waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 I CTR MtZ 0145.___7

r Sommers - direct 69 are they reflected in your publications which were appended to your curriculum vitae? A. Yes, but not carcinogenesis. Q• 8 9 10 We are not dealing with carcinogenesis? 7! the field of carcinogenesis research. A. Host factors in my opinion don't fall into Q• What is carcinogenesis? A. Carcinogenesis is that series of steps in experimental systems or human beings that 11! eventuates in cancer. 12 , Q. Do host factors have any effect on 131 carcinogenesis? I 14i A. Yes. 15 Q. You've considered that in your papers? 16 A. Yes. 17 18 MR. EDELL: Do you have an extra copy of his curriculum vitae, Mr. Hartzell? 19 MR. HARTZELL: Yes, I do. It has 20 some of my marks on it. 21 MR. EDELL: I'm sorry. I'll give you 22 a clean one, then. 23, (Sommers Exhibit 6 marked for I 24I identification.) 25; Q. Dr. Sommers, could you please refer waga and spinelli certified shorthand reporters 405 Nonh(ield Avenue West Orange, N. J. 07052 201•731•9666 Ci R i i N 0.L 4+-e ,•~•~8

r Sommers - direct 70 1 to the articles which you say you published prior 2 to 1965 in which you studied host factors as 3 previously described by you? . That would be preferable. 8 A. Yes. To save time, may I use the numbers given in my published articles? " A. Number 7, 8, 13, 18, 20, 28, 31, 36, 37, 45, 47, 55, 60, 62, 68, 69, 71, 76, 79, 80, 86, 87, 88, 1 91 90, 92. Question, Mr. Edell. You gave a date. 10 11 12 Q. 1965. A. 97, 104, 111, 122, 128, 133, 134, 145, 152, 153, 158, 159, 161, 165, 166. We are into 1965 13; now. Do you want me to go to the end of '65? 14~ Q. Prior to this meeting that you say I 15 1 A. I would have no sure way of establishing 16 1 that but anyway, 173. 17 18 19 20 Q. Which of the articles which you have identified as reflecting your work and interest in host factors in development of cancer pertain to cancer of the lung? 21i A. Number 92 -- 22I MR. HARTZELL: Are you asking him to 23 go back through the list again? 24! MR. EDELL: I don't think it will be 25 : too long. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014559

r 10 11 12 13 14 15 16 17 18 19 20 21 22 Sommers - direct 71 MR. HARTZELL: You might have asked that to start with but go ahead. A. (Examining document.) 134, 161, 166, 173. Q. Have you ever written any papers which concerned extrinsic carcinogens? A. Yes. Q. What is an extrinsic carcinogen? A. It is an agency which may be physical, chemical, bacterial, viral, et cetera, that is believed to be innate to the development of a certain type of cancer. Q. Can you give us examples of physical extrinsic carcinogens? A. Yes. Ionizing radiation, ultraviolet light, heat, trauma. Q. Can you give us examples of chemical extrinsic carcinogens? A. Yes. Inorganic substances such as arsenic, chromium and nickel, organic compounds such as benzene and a variety of polycyclic hydrocarbons. Q. Cigarette smoke contains polycyclic aeromatic hydrocarbons. Correct? 23 ~ A. Yes. 24j Q. Is cigarette smoke considered by you 25 to be an organic substance? ~ waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 !.. TR i tN 014560

r 1 72 getting into the expert category here now that you Sommers - direct MR. HARTZELL: Counsel, aren't we 3 are moving into the chemical components of various 4 substances and asking his opinion as to those 5 components? Isn't that part of your expert 6 inquiry? How is that a fact inquiry? If you want 10 to ask him what he has written, fine. MR. EDELL: Counsel, you're the one that used the phrase "inextricably intertwined." MR. HARTZELL: It's not inextricably 11 intertwined with the basic facts for which he is 12 to appear today but it's inextricably intertwined 13 with the chemical components of substances on 14 which you are asking his expert opinion and that's 15 for next week. 16 MR. EDELL: I'm entitled to ask this 17 witness questions concerning his expertise during 18 the time frame that he acted as a member of the 19 Scientific Advisory Board in the Council for 201 Tobacco Research and during the time frame that he 21 made representations in the public press and in 22 other capacities that cigarette smoking was not a 23 cause of lung disease in human beings, and that's 24 what I'm doing right now. 25 MR. HARTZELL: You are stating what waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR HN 014561

I Sommers - direct 73 1 he said, which is a misstatement I might say, but 2 you can ask him what was said and so forth, what 3 he did about the CTR bur youi are not getting into 4 10 111 have to start from the very beginning. 12 13{ publically while you were with the Scientific 14; Advisory Board of the Couincil for Tobacco 15i Research with regard to the issue of cigarette i 16~ smoking and health? ; 17~ MR. HARTZELL: That's a proper I 18 19 20 whole examples of different substances which are characterized in certain chemical ways and that's getting into the expert category as opposed to the fact category. Go ahead but we will cut it off if you get too much in the expert category. MR. EDELL: It's apparent that the Court will have to review this record so we will Q. Have you ever expressed any opinions question. MR. EDELL: Thank you very much. A. Yes . 21; Q. What have you conveyed to the public 22~ in regard to that subject? 23 MR.'SIRRIDGE: Object to the form of I 24; the question. 25 MR. HARTZELL: Are you talking about waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR t t i Z 014562

, he said on all occasions? MR. EDELL: That's right. MR. HARTZELL: If you can sum it upp in a sentence or two. Sommers - direct 74 1 since 1966 or whenever he became an SAB member? 2, MR. EDELL: Through 1982. 3 MR. HARTZELL: Youi want to know what 4 1 81 A. The question referred to public statements in relation to cigarette smoking and lung diseases? Q. That's correct. A. I have indicated that with respect to lung cancer that at present there is insufficient scientific informmation conclusively to indicate 9 10 11 12 13 14 15) that cigarette smoking is a cause of lung cancer. Q. Did you make that statement in your capacity as a representative of the Scientific Advisory Board of the Council for Tobacco Research? A. No. 16 17 18 19 20 21i MR. SIRRIDGE: Object to the form of 22i the question. i 23i Q. In what capacity did you make those ~ 241 statements? 25 A. As an individual scientist. 1 waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR MN 01455631

r Sommers - direct Q. As a scientist qualified to give an opinion on that subject,.sir? A. My belief is that -- yes. Q. Prior to 1982, did you evesr write any articles pertinent to lung pathology? 61 A. Yes, a-s you see from the list which may 75 7: include some additional ones. ~ 8~ Q. Would you tell us in addition to 134, 9 10 11 12 134, 92, 161, 166, 173 which articles pertain to lung pathology? A. Yes. Number 2, number 42, number 45, if not already listed, number 64, number 72, number 116, 131 number 118, number 123, number 137, 138, number 14~ 162 in part, number 164, number 168, 170. i 15~ Q. We are going up to 1982 on this one, i 16~ Dr. Sommers. I 17 1 A. Oh . 18 19 20 I Q. Thank you. A. (Examining document.) 186, 202, 204, 214, 216, 218, 231, 233, 234. 21 , Q. 233 was ,with Dr. Victor Gould? 22 I A. Yes. 23i Q. It's the same Dr. Victor Gould who is 24I an expert in this case? ~ 25 A. I don't know whether he is an expert waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 !.r TR i iN 014564

r 1 2 Sommers - direct witness. Q. Go ahead. We are past 234. 76 3 A. (Examining document.) 243, 272. 4 Q. That's another article co-authored by 5 6 ' 7, i 81 I Dr. Victor A. Yes. Gould? MR. HARTZELL: MR. EDELL: And And others. others. 9i MR. HARTZELL: 1978. 101 A. 283, 29 3, 299. Not in cluding 1982, is that 11 1 the request? 12i Q. Up to 1982, sir . 131 I A. The end . 14!; Q. Of what signifi cance, sir, is it, if 15' i any, as to wh o is listed first in your listing of 161 publications insofar as the author's name is 171 concerned? ~ 181 A. The firt authorship is a matter of ego, 19I sometimes originator of the idea or project, 20I sometimes courtesy to a junior co-author whose 21; I career would be assisted by publications and other 221 I considerations. i 23 Q. What other considerations? 241 A. Possibly the person who received a grant for 25: the work, possibly honoring a deceased co-author. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR HN 014565

Sommers - direct 1; Q. We covered articles which you've 2 written concerning host factors regarding lung 3 cancer up to 1965. I don't believe that we 5: 9 10 11 12 13 14 continued up until 1982. Can you tell us which articles you wrote regarding host factors in lung cancer subsequent to 1965? MR. HARTZELL: Off the record a second. (Discusszion off the record.) A. I'll answer the question that you asked. (Examining document.) MR. HARTZELL: You are asking for host factor articles? MR. EDELL: Correct, only in lung 1 151 cancer. 16 17 MR. HARTZELL: Lung only? MR. EDELL: Lung only. 77 18; A. (Examining document.) I believe 187 but I'm 19I not certain of it. 212. 20II Q. This is lung cancer? i 21i A. Yes. An explanation is necessary. 22` Q. I was just going to say. Thanks. 23 I A. Woul-d you'1•ike an explanation? ~ 24i MR. HARTZELL: Let's go through the i 25' list and do it after lunch. 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731•9666 CTR MN 014566

r 1 Sommers - direct 2 explanation on 212 after lunch. If I forget, you 3 rem ind me. 4 A. (Examinind document.) 233, 234, 243, 264, 5 possible 267. I'm not certain. What's the I 10 11 cut-off date? Q. 1982, sir. A. 272, 283, 293. That's '82 and you don't want anything in '82 so scratch 293. MR. EDELL: I don't think it's a question of want but ca't have at this juncture. MR. EDELL: We will get an 12 I A. The end. 13 14 MR. HARTZELL: I think it would be wise to take a break for lunch and I think as far 151 as we are concerned, we could be back at 16 17 18 one-thirty. Would that be all right? (Luncheon recess.) A F T E R N 0 0 N S E S S I 0 N 19 1 20I Q. Dr. Sommers, can you tell me your i 211 definition of lung.pathology? 22 A. Pathology is the study of disease. 23 Therefore, lung pathology would be the study of 24 i disease of the lungs. 25' Q. You were going to give us an waga and spinelli certified shorthand reporters 78 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 CTR NN 01456"

Sommers - direct 79 explanation with regard to number 212 of those articles. 6 A. It's an exhibit number something and I don't see it right here. Q. Sommers Exhibit 6. A. Yes. Number 212 deals with testicular 8 biopsy artifacts resulting from improper tissue processing, 1968. Being a pathologist, my method 9 of investigating host factors in various human 10 cancers was to collect a large number of autopsies 11 that had,the type of cancer being investigated and 12 then an equal or greater number of controls 13 matched so far as possible by age and sex who at 14 autopsy had no cancer and the evaluation turned 15 out to be largely dependent in those years upon 16 abnormalities of the various endocrine glands. 17 There are a number of individual 18 articles on endocrine glands which I don't think I 19 included in either listing because I was not sure 20 that they were relevant to host factors in lung 21 cancer. However, as testis was in that 1958 22 article considered as important and those were 23 autopsies, and had artifacts been involved in 24 those specimens of testis, then my earlier work 25! might have been to some extent invalid so that I , 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201 •731 •9666 CTR MN 014568

I Sommers - direct 80 1 this article investigates the changes that occur 2 if you don't have perfect preparation of 3 testicular tissue and to that extent, I regard it as relevant. 5 Q. The primary inquiry was not with 6 regard to lung cancer, though. Is that correct? 7 A. No, but since host factor s in lung cancer involved in man testicular changes, it was a 9 follow-up article that evaluate d whether what I 101 saw was properly interpreted. 11 Q. Dr. Sommers, will you define the 12 phrase "etiological factor"? 13 i A. An etiologic factor in general is something i 14° that causes something else. 15~ Q. Would the phrase "etiologic factor" 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 1 16; relate to the phrase previously discussed, i , 17~ "extrinsic carcinogens"? 181 I A. Yes, it might or it might not. 19! Q. In what way would it relate? 20 1 A. If a specific identifiable extrinsic factor 21; could be correllated scientifically with the 222 ' presence of a cancer, then it could be possibly 23 , considered an etiologic factor. 24' Q. When you say extrinsic factor, do you 25 use that synonymously with ex*trinsic carcinogen? waga and spinelli certified shorthand reporters Ci R HN 014569

r Som:ners - direct 81 1: A. No, it isn't synonymous. Q• My question was with regard to extrinsic carcinogens as opposed to factors. A. Extrinsic carcinogens would be considered 5 scientifically both necessary and sufficient to i i 6! produce the condition. Q• 9 10 11 12 13 14 Getting back to my original question, do you consider extrinsic carcinogens to be etiological factors in the development of cancer? A. In some cases, clearly yes. In other cases, uncertain. In a third group, almost certainly no. Q. What causes cancer, sir? A. Well, no one really knows. The most current theory is oncogenes. 15! Q. Do you have an opinion as to what 16! causes cancer? Strike that. 17 18 19 20 21 22 23 During the time period up to 1982, did you hold an opinion as to what caused cancer? MR. NORTHRIP: Are you talking about any particular cancer? MR. EDELL: Any particular cancer. A. I believe it persuasive that ionizing ( radiation occupationally can be a cause of lung 241 cancer. I regard it as highly likely that 25 ultraviolet light may be a cause of skin cancer. waga and spinelli certified shorthand reporters 405 Nonhfield Avenue West Orange, N. J. 07052 201-731-9666 1.1 TR i i i i 014570

r Sommers - direct 82 If you mention other possibilities, I could comment on them more specifically. Q. Are there any chemical agents which you would consider a cause of lung cancer? A. I listed some when you first opened the subject, arsenic, chromium. Q• 8 What was your definition of the phrase "causative factor" with regard to lung 911 cancer? 10 11 12~ Q. When you say as I express it, is 13; there a context in which causative factor has a ~ 14~scientific meaning in dealing with cancer? 15I A. Not in my opinion. ` 16i Q. What are Koch's postulates? 17~ A. Koch discovered the tubercle bacillus, and 18 19 20 A. As you express it, causative factor has no scientific meaning. his postulates, briefly stated, are that if one isolates from a disease condition an agent, can propagate it outside the body, can, using that 211 agent on animals or• nowadays tissue cultures, et 221 cetera, produce a comparable lesion and ideally, 23 24 but ethically unlikely, reintroduce the agent in a human being, reproduce the same disease. 25' Q. Do you believe that Koch's postulates waga and spinelli certified shorthand reporters 405 Northiield Avenue West Orange. N. J. 07052 201-731-9666 C TR HN 014571

r Sommers - direct 1' are a valid method for establishing causation? 2 A. In infectious diseases, yes. 3 Q. With regard to cancer, do you think Koch's postulates is a valid means by which to 55 establish causation? 6 1 A. No longer. 8 9 10 11 12 13 14 15 16 17 18 19 Q. Was it at one point in time? A. At a much earlier stage of cancer research, some people regarded it as valid. When was that period of time, sir? to 1945 approximately. Did you ever hold the opinion that Koch's postulates was a valid manner in which to establish causation? A. During that period if that was a general scientific belief, then it may be I shared it. Q• But only during that period of time? A. I don't know that for sure but no longer. 83 Q. Did you during the time period up to 20~ 1982 hold an opinion as to whether or not animals 21i were of value in experimental use in regard to 22I carcinogenesis? 23~ A. Oh, yes. i 24 I Q. Of what value were they, sir? I 25; A. In many conditions animals can be I waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201 •731 •9666 CTR MN 01457 ~

r Sommers - direct 1' manipulated in ways that one is not permitted to 2 human beings and may be used to evaluate the 3 biochemical, metabolic, pathologic changes, and since it's permitted to kill them at any time in the experiment, various stages of disease process can be evaluated to get an idea of the so-called pathogenesis. Q. Of what relevance do those animal studies have to cancer genesis in man? 101 A. In respect to skin cancer, they are of i 84 11~ considerable theoretical value. 12 Q. What do you mean by theoretical value? 13' A. They have led to the theory of initiation, i 14; promotion and progression of cancer. 15! Q. What do you mean by initiation? 16 A. Initiation is understood to be the ~ 17I transformation of cells, in particular their DNA, 18j from ostensibly normal to evidently neoplastic. 19 1 i 20 ~ mean? ~ , Q. When you say neoplastic, what do you 21; A. TransformatiQn is believed to be an ~ 22i irreversible change so that the growth i 23; characteristics and the microscopic appearance and 24i to some extent the enzyme activities are 25 irreversibly altered and this is taken to waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014~~~

t Sommers - direct 85 1 represent the initial or, as it's said, initiation 2 phase of cancer. 10 11 12 Q. What do you mean by the phrase "promotion"? A. Promotion means that those original, often invisible or'microscopic, nests of cancer cells are encouraged to grow in larger numbers. MR. EDELL: Would you read that back, please. (Answer read.) Q. Of what significance, if any, are animal studies in the determination of the 131 1 carcinogenesis of lung cancer in human beings? 141 A. They have helped to support a belief that 15 16 17 18 19 20 21 22 ionizing radiation can cause lung cancer. They have been looked at with varying degrees of favor and disfavor over the years in respect to the possibility that organic materials might have a role in the etiology of lung cancer. They have been recently useful in investigating the effects of various viral type substance on tissue cultures on cells from animals. 23~ Q. Are there any organic materials which 241 you believe to be the cause of lung cancer in 25: human beings? Again we are talking up to 1982, waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014574

10 Sommers - direct sir, unless I otherwise -- MR. HARTZELL: I'll assume your questions are all the appropriate time frame. MR. EDELL: I just wanted the doctor to understand. A. Not that I immediately think of. Q. Are there any inorganic materials which you believe to be the cause of lung cancer in human beings? A. I regard arsenic as a likely occasional 11 I cause. 12 13 14 15 16 17 18 19 20 21 22 Q. As what? I missed that. A. I regard arsenic, arsenic is an inorganic 86 element, as a likely occasional cause under appropriate exposures. I understand that chromium and nickel workers likewise have an increased incidence. Q. Just so we don't misunderstand my question, I'm not talking about an increased incidence or a likely occasional cause. I'm talking about cause and effect, whether or not you believe arsenic is a cause of lung cancer in human 23~ beings. 24 j A. I do. I 25! Q. What do you base that opinion on? i 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 0 1 451"S

r Sommers - direct A. I base that opinion upon my own research. 87 3 A. Q• What research is that? It has a reference number. 4 Q. When you say a reference number, you i 5 are talking with regard to Sommers Exhibit 6? i 6 A. Yes. 28. i 7; Q. Other than your article number 28 in 8 9 10 11 12 13 14 15 16 17 18 19 Sommers Exhibit 6 for identification, are there any other studies that you rely upon in concluding that arsenic is a cause of lung cancer in human be i ng s? A. Yes. And readings of both much older and newer publications by others. What type of studies are reflected in this literature that you say you've read? A. The original implication was in individuals with skin disease treated with inorganic arsenic who developed numbers and varieties of skin cancers not ordinarily seen in other persons. 20~ Then later there was literature from France in 21I which Paris Green, an arsenic containing 22I insecticide, was used to spray the grapevines, 23, in these workers, an unexpected lung carcinomas 24 developed. Then subsequently there were other 25', confirmatory studies elsewhere, including in waga and spinelli certified shorthand reporters and 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 I CTR HN 014S<6

Sommers - direct 88 1 people in the United States who are given still in 2 some places inorganic arsenic for various conditions. Q. Are these case studies? Are these epidemiological studies? What type of studies are you referring to? A. The original ones were collections of cases. 8~ The interest in arsenic has abated because of very i 9~ restricted use due to this knowledge in the last I 10I 30, 40 years and it was during that period that ~ ~ 11~ epidemiologic studies of human cancer have evolved, i 12~ so I think there was little or no overlap between 13~ the two kinds of studies. I 14~ Q. Is what you are saying, sir, that 151 there were no epidemiologica l studies? 16j A. I don't know that. 17~ Q. Were you aware of any epidemiological i 18i studies? 19~ A. Well, one must define epidemiology before 20 assuming that there were or weren't. 21; Q. How does Dr. Sommers define 22 ' e ide iolo ? p gy m 23i i A. E idemiolo p gy is a discipline in which a 24: population supposed to be the same as another 25 population of same general characteristics has 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201•731•9666 CTR l~N 01~~~~

Sommers - direct 89 1; exposure to or is influenced by some factor that 21 the control population has no exposure to, and i 3~ when the two populations are compared, a difference in incidence which is then by 5 mathematics considered to be statistically 61 significant is developed. That's in essence the 7~ published part of epidemiologic studies. There 8 are textbooks and so on on the subject. 9 Q. What epidemiological studies with 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regard to arsenic and lung cancer were you aware of prior to 1953? Q. MR. HARTZELL: 1953? MR. EDELL: Yes. I believe that's when you authored article 28. A. I don't believe any. Q. You concluded in 1953 that arsenic was a cause of lung cancer in human beings? Is that correct? Is that right? A. The title is Multiple Arsenical Cancers of Skin and Internal Organs and among the internal organs affected in some of the cases was lung. Q. Could you answer the question? Did you conclude in 1953 that lung cancer was caused by arsenic exposure? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orsnge, N. J. 07052 201-731-9666 CTR HN 014578

Sommers - direct A. Limited to our autopsy material which is highly selective and thus not really useful for 90 epidemiologic studies and within the limits of our methods which were those of anatomic pathology, we believed that there was a significant relationship 6j in terms of -cause between the exposure to inorganic I 71 arsenic and the skin and other cancers. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. When you say other cancers, you are talking about lung cancer also? Is that correct? A. Whatever cancers are described in the paper not restricted to lung. Q. Do you recall whether or not lung cancers were included in your paper? A. Yes. Q. Were lung cancers included in your paper in the context of arsenic causing lung cancer? A. In the context that they had been exposed to arsenic and had lung cancer, yes. Q. What was the conclusion with regard to arsenic exposure,and lung cancer in your 1953 paper? A. Clearly, and this was in confirmation of several earlier studies, people exposed to inorganic 25' arsenic develop a multiplicity of sites and types 1 waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. 107052 201-731-9666 CTR HN 0145<~t

, Sommers - direct 91 1i of skin cancer which even affect the palms and the 21 soles and this is very unusual in anyone who is i 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not, who has not been exposed to arsenic. Now, with respect to the internal cancers, the number of cases that we had to study and the number of cases we could collect from the literature weren't sufficient to come to any conclusive summary verdict. Q. All I want to know is what your conclusion was with regard to arsenic and lung cancer. MR. NORTHRIP: You are asking him the conclusion of an article in 1953? Do you have the article here? MR. EDELL: I don't have it right here with me. Q. What was your conclusion? MR. HARTZELL: I think he already gave you the answer. MR. EDELL: If he doesn't remember, he can tell us. A. I would need to refer to the article to give you a more complete answer than I already have. Q. Lest there be any confusion, sir, was there any confusion in 1953 in which you concluded waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 I CTR NN 014580

4 Sommers - direct 92 ; that arsenic was a cause of lung cancer or was it st ? i age at some later A. I don't know the answer to that pa 4i question. rticular 5• Q. You did conclude at some ju ncture 6~ that arsenic was a cause of lung cancer. Is that ~ ~ 8 correct? A. I have held the opinion at some po int, yes. 9 Q. Do you still hold that opin ion? 10 In some cases es A . , y . 11 You don't remember when you 12 formulated that opinion. Is that correc t? 13 A. Correct. 14 Q. Are there any other extrins ic 15 carcinogens other than arsenic that you consider 16 to be a cause of lung cancer? Again we are only 17 dealing with inorganic materials now. 18 A. I referred to chromate and nickel 19 occupations. I should refer to radium a nd radon 20 daughters because those are two inorgani c 21 chemicals even though they are radioacti ve. 22 Q• With regard to chromium and it being 23 1 a cause of lung cancer in human beings, what 24 ` studies did you rely upon in reaching th at 25 I! conclusion? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 i C_ R t tN 014581

s Sommers - direct 93 A. There are a number of situations of occupational exposure in the chromate industry where an unusual number of naso or nasopharyngeal 41 carcinomas develop, and in some of those 51 individuals, other sites were involved, including 6 1 lung. 7 8 9 10 11 12 13 14 15 161 epidemiology mostly followed the era when the 171 early case studies implicated chromium, and there 18 has been less interest because as soon as the 19 danger was appreciated, the exposure was reduced 20 and, therefore, there were no populations large 21 enough to study that could be collected. 22 23 24 25 Q. Were these case studies, sir? A. They were necessarily collections of individuals occupationally exposed and some of the carcinomas were unusual in location and number and, therefore, considered worthy of report. Q. Were the studies that you referred to with regard to chromium being a cause of lung cancer in human beings epidemiological studies? A. Well, again, the evolution of cancer Q. ' Are there any other inorganic materials-which you believe to be a cause of lung cancer in human beings? MR. NORTHRIP: Mr. Edell, this is a waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 ! .r i R t i i i 014562

t Sommers - direct 94 1: fact deposition. So far this afternoon, we have i ~ had nothing but questions to Dr. Sommers about what opinions he may hold as to various causes of i 41 1 lung cancer and what materials support those 5; opinions. I think we are into an area of the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 expert deposition. We have been in it now I think long enough. I think you ought to move to an area in your fact deposition. MR. EDELL: Lest there be any confusion, and I believe the witness understood it and so did Mr. Hartzell, with regard to these questions, we are restricting our inquiry to the period up to 1982. I Q. You understood that, did you not, Dr. Sommers? A. I heard that, yes. Q. You understood that in the context of these questions. Correct? A. Yes. MR. HARTZELL: We understood that but that's not the whole answer to the problem. There is a point at which you are just dealing with Dr. Sommers as an expert and I don't know exactly where to draw that line but keep it in mind 251 because you haven't gotten into many facts. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 4 tR i iN 014563'

s Sommers - direct 95 1; You've just been talking with very miscellaneous 3; reference to his articles as giving you a factual support but basically you are talking to him as an expert now. 5! MR. EDELL: I'm talking about what he 6i knew at diff.erent points in time regarding the 71 issue of lung cancer in human beings, that being 8 9 10 11 12 13 14 the period of time also relevant to his having given testimony before Congress and made statements to the press concerning his opinions on cigarette smoking and lung cancer. MR. HARTZELL: Without your testimony as to what he said to Congress or to the press, why don't you ask him about that instead of -- if 151 you want to ask questions about that, that's one 16 17 18 19 20 21 22 23 thing, but if you want to get into the medical issues in the abstract way in which you are doing it, you are bordering on, if not intruding upon, Dr. Sommers as an expert. It's not connected here. MR. EDELL: The doctor has testified that he gave his opinions before Congress and to the public concerning cigarette smoking and health as an expe'rt in that field. 24~ Q. Isn't that correct, Dr. Sommers? 25 1 A. I think that is essentially correct. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 !._. TR HN 014584

I 6 MR. EDELL: It's not a question of 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Sommers - direct MR. HARTZELL: Why don't you ask him what he did, then? what he did. It's what he knew at different points in time. MR. HARTZELL: You haven't related any of that to any of this. MR. EDELL: I don't have to. This isn't trial, counsel. This is a deposition. MR. HARTZELL: It is a fact 96 deposition of a person designated as a witness which you say is not his expert deposition and, therefore, you don't have to tender any payment to him. We deposed Dr. Horten. Dr. Horten gave his opinion, set out his facts and medical reports in the case. We deposed and are deposing Dr. Ratner. We haven't gone through this kind of thing in some kind of guise of taking a fact deposition when, in fact, we are delving into what's obviously an expert area. All of these questions are appropriate for an•expert deposition and I would suggest that you reserve them for the expert deposition and conduct it in the way that your office has set it up. 25i MR. KATZ: The questions almost I , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR HN 0145B,~.~.~

s 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Sommers - direct without exception have been directed not at what 97 the witness knew but at what opinions the witness had formulated at different times. MR. NORTHRIP: And the factual basis for those opinions. MR. EDELL: Mr. Katz, I guess you couldn't hear down there that we restricted the inquiry to the time period he was working with the Scientific Advisory Board, the Council for Tobacco Research up to 1982. I'm certainly entitled to know his,expertise during that time frame when he was reviewing grants, when he was making statements to the press on the issue of cigarette smoking and lung cancer. It goes to the credibility of the witness' statements at that point in time. MR. HARTZELL: Why don't you tie your questions into what you are going to ask him instead of just talking to him as an expert. MR. EDELL: I don't have to tie it in now. This is not trial. MR. HARTZELL: You go ahead but I'm going to cut you off and not going to let him answer if you treat him as an expert here in this 25; fact deposition. waga and spinelli certified shorthand reporters 405 Northfietd Avenue West Orange, N. J. 07052 201-731-9666 CTR i iii 014566

s 4i just asking at large. MR. HARTZELL: Sure you are. You are 7 8 9 10 11 12 13 14 15 16 17 Sommers - direct 98 MR. EDELL: I'm not treating him as an expert in the context of this case. MR. EDELL: I'm talking about the time frame when he was making statements to the public. MR. HARTZELL: The time frame isn't the point. The point is you are asking him at large, what do you think arsenic does, what do think about this, what do you think about that, what did you think then, what do you think now. you MR. EDELL: I'm not asking him what he thinks now. MR. HARTZELL: Even what he thought then. MR. EDELL: You don't think that's 18 relevant as to the credibility of this witness in 19 terms of his statements concerning cigarette 20 smoking and lung cancer? 21i MR. HARTZELL: Unless you put it down 22I in the context of something, it's dealing with him 23I as an expert. That's all I can say. ~ 24 1 MR. EDELL: I'm telling you that's 25; the context in which I'm asking these questions. i i waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR t iN 014587

S Sommers - direct 99 1~ MR. HARTZELL: But you are not i 2; relating it to a context. I 3; MR. NORTHRIP: What we are 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questioning is you are breaking this into a fact and expert deposition, coming into what you chose to call a fact deposition and asking questions that are appropriate for an expert deposition. It's your breakdown, not ours. MR. EDELL: I'm not asking him ; questions concerning his opinions in this case, counsel. That is the manner in which he has been named as an expert. He hasn't been named as a state of the art expert or anything else. He has been named as an expert with regard to the type of cancer Rose Cipollone, and the etiology of the cancer that Rose Cipollone had. MR. NORTHRIP: You don't think questions relating to his opinions regarding causes of lung cancer relate to that testimony? MR. EDELL: They may impact on it indirectly obviously. I . MR. NORTHRIP: They impact a lot further on that than a fact deposition. MR. EDELL: Some do most of the other ; questions I will ask here. That does not mean waga and spinelli 405 Northfield Avenue certified shorthand reporters 20e1 731a9666N. J. 07052 CTR HN 014588

Sommers - direct 100 they are not factual questions. When he went to school and when he did that is relevant, too. MR. HARTZELL: If you want to ask him, if you have something that you, that he said or something reported in one of these documents and . 61 you want to.ask him about that, what the basis for 1 71 it is, okay, but these at large general questions 9 directed to an expert are not appropriate in this. MR. EDELL: Mark these Sommers 10 Exhibits 4A, B and C. 11 (Sommers Exhibits 4A, B and C marked 12 for identification.) 13 (Sommers Exhibits 7, 8, 9 and 10 141 marked for identification.) 151 Q. Dr. Sommers, starting with 4A for 161 identification, can you tell us what that is? 17 18 19 20 21 22 23 24 25! Robert C. Hockett. I waga and spinelli certified shorthand reporters A. 4A is a photocopy of a portion of the hearings of the subcommittee of the U.S. Senate in regard to a bill S1454 entitled Public Health Cigarette Amendments of 1971. Q. Whose testimony is that, sir? A. It begins on page 140 with questions and answers an'd then proceeds to quote further statements of Dr. Sheldon C. Sommers and Dr. 405 Northiield Avenue West Orange. N. J. 07052 201•731•9666 CTR HN 014589

s I 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Sommers - direct 101 Q. 4A for identification was one of the documents that you produced here today. Correct? A. I will ask counsel to be sure. MR. HART2ELL: Yes. A. Yes. Q. You reviewed that document prior to today's deposition? A. Yes. Q. Do you recognize that to accurately reflect your statements at that time? A. (Examining document.) Through page 144, it includes questions and answers, the answers by me. On page 145 and thereafter, it is questions and answers between Senators and Dr. Hockett. Q. With regard to Exhibit 4A for identification, did your statements pertain to the issue of cigarette smoking and lung cancer? A. (Examining document.) Only on page 144 in the lower half is lung cancer mentioned that I find on this rereading. 0. Did yQu discuss the issue of cigarette smoking and disease in general? A. Yes. Those are the questions and answers. Q. With regard to Exhibit 4B for 251 identification, can you tell us what that is? , waga and spinelli 405 Nonhfield Avenue West Orange. N. J. 07052 certified shorthand reporters 20,-73,-9s6s CTR HN 014590

t { Sommers - direct 102 A. 4B has the same headings as to subcommittee, 21 Senate, bill number and title and it 3; pages 88 through 96. i 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 includes Q. Do you recognize that to be an accurate reproduction of your statement given at that time? A. Yes. I also recognize Senator Moss asking questions in respect to further information which I believe was later provided him. Q. Did you discuss at that time the issue'of,cigarette smoking and disease in human beings? A. Yes. Q. Didyouu discuss at that time the issue of cigarette smoking and lung cancer specifically? A. Yes. Q. With regard to 4C for identification, will you tell us what that is. A. 4C is hearings of a committee of the House of Representatives,-the first session on HR643 entitled Part Three, Cigarette Labeling and Advertising-1969. Q• The portion of the hearings that you are looking at now which has been marked , waga and spinelli certified shorthand reporters as 4C, 405 Nonhfield Avenue West Orange. N. J. 07052 201-731-9666 f i C TR MN 014591

S Sommers - direct 103 1' are those statements made by you? i 2 A. It begins on page 1080 with "Statement of 4 Dr. Sheldon C. Sommers,~pathologist, New York, New York" and that proceeds to page 1093 and 5' thereafter are questions and answers. 6j Q. Is 4C an accurate reflection of what t 71 your statements were at that time? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Yes, as extended and additional information provided at his request to Senator Moss. I believe. I may be in error about that last. Q. Did you discuss the issue of cigarette smoking and health during that hearing? A. Yes. Q. Did you specifically discuss the issue of cigarette smoking and lung cancer? A. Yes. Q. With regard to the statements made by you as reflected in 4A, B and C for identification, at whose request did you make those statements? A. I no longer remember who invited me. Q. Did someone associated with the tobacco industry ask that you prepare these statements? A. For some hearings-it was a senator or 251 congressman who invited me. At other times I was waga and spinelli 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-ss6s CTR HN 014S92

Sommers - direct 104 invited by the Tobacco Institute. i 2; Q. What senators or congressmen invited you? ~ 5~~ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. I'm sorry. I no longer specifically remember the names and the specific occasions involved. Q. Do you remember the names of any of the congressmen? A. Yes. Senator Cook, Representative Preyer, but in respect to which specific hearings, I really can't tell you. Q. Is that the same Senator Cook who later became a partner in the firm of Shook, Hardy & Bacon? MR. PARRISH: Object to the form of the question. A. I have no idea. Q. Let's look at Sommers Exhibit 7 for identification. A. Sommers Exhibit 7 is a photocopy entitled "Statement of Dr. Sheldon C. Sommers" and it has in handwriting the numbers 2-8-1965. It is also identified by numbers stamped on, T085086 through 089 and also on the front page stamped, as I read 251 it, 23488. waga and spinelli 405 Northfield Avenue certified shorthand reporters 201t73189666N. J. 07052 CTR HN 014593

Sommers - direct 105 Q. Can you take a look at the last page of this document, sir? Is that your signature? Q. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 - Do you recall preparing this document? A. I don't recall but it appears to be something I prepared. Q. Do you recall someone asking you to prepare a statement for submission in 1965? A. No. Q. Do you recall having any contact with any representative of the Tobacco Institute at that time? A. No. Q. In March of 1965, did you have any contact with the Council for Tobacco Research? MR. HARTZELL: In March of '65? MR. EDELL: That's correct. MR. HARTZELL: You are asking him 21 years ago. A. My memory just will not serve. I don't remember. Q. You have no idea why you prepared 25; this statement. Is that correct? ( waga and spinelli 405 Northtield Avenue West Orange, N. J. 07052 certified shorthand reporters 20,-73,-s6e6 CTR t`•tN 0145904V

1 Sommers - direct 106 1 j A. No. 2; MR. HARTZELL: He said I recall. he di dn ' t 41 A. I don't recall who asked me. j I bel ie ve I 51 invit d t h b . mus ave een e 6 Q. Do you have any idea wh y you p repared 7 this statement? 8 MR. PARRISH: Object to the f or m of 9 the question. 10 THE WITNESS: Should I answe r? 11 MR. HARTZELL: Yes, you can an swer. i I 12 A. It is similar to other stateme nts p re pared 13 but perhaps not read out at a meetin g of so me 14 senatorial or House of Representativ es co mm ittee h C f 15 ongress. o t e 16 Q. Did you discuss in that stat em ent the 17 subject of cigarette smoking and dis ease in human 18 beings? 19 A. Yes . 20 Q• Did you discuss specifi cally the 21 issue of cigarette.smoking and lung cance r ? 22 A. Yes. 23 Q. In human beings. Corre ct? ~ 24 A. Yes. 25 '; Q. Let's take a look at So ~ I mmer s Exhibit ~ 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 i i t. _ R t t t `1 014595

Sommers - direct 107 8 for identification. A. This is a photocopy. It has a logo on it that I can't read in the photocopy. It is labeled Philadelphia, PA Bulletin and then there are some I , i 5~ numbers and then it includes, the date is almost 1 61 illegible but it's something beginning with and i 7 8 9 10 11 12 13 16 followed by 30 followed by 1969 and then it is a photocopy of what purports to be a news item in a newspaper and the title of the article is Cigaret, spelled C-i-g-a-r-e-t, Blame for Cancer is Questioned. Then at the bottom there are some stamped-on numbers, T085084 and 23490 and then in handwriting, something illegible. I can make out 14~ 36-1327. ~ 15I Q: Do you recall being quoted in the 17 18 19 4 20 ~ 21 22 23 1 press in 1969 regarding the issue of cigarette smoking and health? A. No, I don't remember this article. Q. And this article doesn't refresh your recollection? A. No. Q. Let's take a look at Sommers Exhibit 9 for identification. 241 A. Number nine -- 251, Q. No question yet. L waga and spinelli 405 Northfield Avenue certified shorthand reporters Oe1 731a9666N. J. 07052 CTR t"tN 014596

Sommers - direct MR. HARTZELL: Was there a question? MR. EDELL: Not yet. 108 3~ Q. Do you have that before you? i 4 i A. Yes. 5 Q. What is it? 6 A. Well, it is labeled at the top HK0927107 and 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 it is a photocopy of a typed memorandum sort of -- Q. A press release? Is that what it is, sir? A. I'm just trying to identify it and not ~ characterize it. It says from colon the Tobacco i Institute, address, contact William Kloepfer, Jr. M i and phone numbers. In capitals, for use after 10 ~ i a.m., Wednesday, April 30, 1969. ~ i Q. Do you recognize this to be a press ~ ~ release, sir? ; A. Permit me to look it over. , 1 Q. Sure. ~ i A. (Examining document.) I'm not familiar ~ i either personally or professionally with press releases but I would defer t-o more expert knowledge of counsel or yourself in this matter. Q. Who is William Kloepfer, Jr.? A. He has been an employee of the Tobacco 251 Institute. , waga and spinelli certified shorthand reporters , 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 Cl L'~. t=Z ~ ti.r~ 1'C .~ rF'lY

Sommers - direct 109 Q• Employed in what capacity? A. I don't know. Q• for years. Q. You did have contact with him previously, though? A. Probably. It's hard to judge. Years ago I had contact with him. 4; A. I haven't had any contact with Mr. Kloepfer 71 1 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Q• Do you have any contact with him? In regard to what? A. He might have been the one to invite me to a hearing or hearings. Beyond that I can't remember any. Q. When you say hearings, what are you referring to? A. One hearing would involve perhaps the Senate, the other, the House of Representatives. They would be on different dates of different years. Q. You understood at that time that he was acting in his capacity as a representative of the Tobacco Institu,te? Is that correct? A. I knew that Mr. Kloepfer was employed by the Tobacco Institute and inviting me. I didn't ask 241 him but I presume that's what he was doing. 25+ Q. With regard to Exhibit 10, can you waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR i ti i 014598

t Sommers - direct 110 1; tell us what that is? i 2 A. That is labeled at the top HK1132081. It is 3; entitled Statement of Sheldon C. Sommers, M.D., 4i before the Consumer Subcommittee of the U.S. 51 Senate Interstate Commerce Committee. 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Do you recall that occurring in 1972? A. Let me read the document. (Examining document.) From intrinsic portions, I believe it was prepared in 1972. Q. Did you prepare this document, sir? A. Yes. Q. You refer to an article in the current January '72 Lancet publication by Dr. Carl Seltzer. Do you see that on page three? A. Yes. Q. Who is Dr. Seltzer? A. Dr. Seltzer is a professor at Harvard University. Q. What, if any, relationship did he have with the Council for Tobacco Research in 1972? A. I don't clearly remember. Q. . When you say you don't clearly remember,*what does that mean? A. Because you say 1972 which makes it i I I 25~ impossible for me to answer. ~ waga and spinelli 405 Northfi•ld Avenue certified shorthand reporters 2oi i°3iass°es"' J 07052 CTR HN 014599

S Sommers - direct 111 Q. Let's make an easier question for you to answer. What, if any, relationship do you 3, recall Dr. Seavers having at any time with the 41 Council for Tobacco Research or its predecessor? i MR. PARRISH: Object to the form of 7! A. I wish to be responsive but I can only be I 81 responsive to the question you ask and perhaps the 6~ the question. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 court reporter -- Q. Did I say Sommers? A. You said Seavers. Q. I'm sorry. Thank you. Can you tell us what, if any, relationship Dr. Seltzer had at any time with the Council for Tobacco Research or its predecessor? A. I know nothing about the predecessor. At times Dr. Carl Seltzer served either as a consultant or perhaps a grantee of Tobacco Research. the Council for Q. Do you know whether or not at the time that Dr. Seltzer wrote this article in Lancet in January .1972 he had any relationship with the Council for Tobacco Research? 241 MR. HARTZELL: He just answered that. 25! A. I already answered. , waga and spinelli certified shorthand reporters 405 North}ield Avenue West Orange, N. J. 07052 201-731•9666 l..r = R t R N 014600

Sommers - direct 112 1; MR. HARTZELL: He said he doesn't 2 know. 3, A. I said already answered. 4~ Q. Dr. Sommers, was it ever your opinion 5~ that extrinsic carcinogenic factors were 6{ considered to be generally relatively more I 7~ important in the background of lung cance r than 8 reactive peculiarities of individual host s? 9 A. Yes, it was, before 1950 approximat ely. 10 Q• You changed your opinion in that 11 d? regar 12 A. Yes. The thrust of my research fro m then 13 for a number of year s was that host facto rs either 14 might be equally or perhaps more important than 15 extrinsic factors. 16 Q. This was your opinion since 19 50? Is 17 that correct? 18 A. Approximately. That's when my host factor 19 studies began. 20 What is a two-stage hypothesis of 21 enesis? r ino g ca c 22 A. It's a former belief that carcinogenicity . 23 first involves initiation and then promotion and 24 it has been extended and amended considerably 25 ' since it was first proposed. 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR t iN 014601

Sommers - direct 113 Did you ever adopt the two-stage I hypothesis of carcinogenesis? A. Yes. At the time'that the general 4' scientific public believed it to be the likely I 5! mechanism, I likewise believed that. i 6i Q. Did you ever change your opinion? 7~ A. Oh, certainly. 81 Q. When did you change your opinion? 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Well, beginning at the time of the research on what are called C type viruses and then continuing right up to the present time. Q. Whose research are you referring to on C type viruses? A. The most famous are Robert J. Huebner and his co-worker Todaro at the National Cancer Institute. Q. What, if any, relationship did Dr. Huebner have with the Council for Tobacco Research? A. He served on the Scientific Advisory Board for some years. Q. Do you recall when? A. No. I would have to examine documents. (Sommers Exhibit 11 marked for identification.) 25; Q. Dr. Sommers, I show you what has been waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 I i i CTR 1 i N 014602

Sommers - direct 114 1i marked Sommers Exhibit 11. It is a document which came from the files of the Council for Tobacco 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Research. It's dated November 28, 1978. It has the Council for Tobacco Research designation of HK, a block or 0, 1985002. Does that refresh your recollection.as to when Dr. Huebner became a member of the Scientific Advisory Board of the Council for Tobacco Research? A. Yes. He accepted, it states, 4/68. Q. Do you recall when, if at any point in time, he resigned from the Scientific Advisory Board? A. No. Because this is a list of members dated 11/28/78 and it gives no information. Q. What was the Scientific Advisory Board of the Council for Tobacco Research? A. It's a group of scientists of different disciplines who agreed to serve on the Council for Tobacco Research Scientific Advisory Board, called SAB for short, to receive, evaluate and act on applications for research funding. Q. McKeen Cattell, what was his area of expertise? A. He was professor of pharmacology at Cornell 251 Medical School and editor of a journal a waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR tiN 014603

Sommers - direct 115 pharmacology. Q. Julius Comroe? A. Julius Comroe was~an expert in pulmonary 4; disease, recently deceased. 5! 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Leon Jacobson? A. Leon Jacobson is a physician, internist, hematologist, investigator of effects of ionizing radiation and former dean of the University of Chicago, Pritzker School of Medicine. Ho w old of a gentleman is he? A. I'm really not sure. He is over 70. Q. Paul Kotin? A. Paul Kotin I knew as a practicing and experimental pathologist in Pittsburgh during the 1950s. Q. Is he the same Paul Kotin who later became affiliated with the Johns-Manville Corporation? Is that an asbestos company? Q. Yes, that is correct. A. A. Yes. Q. Clarence Cook Little? 23( A. Clarence Cook Little, already described in 24 part, was for many years the director of the Bar 25; Harbor Laboratories, a source of inbred mice, the waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014604

Sommers - direct 116 11 purist genetic strains of mice available, and at 2; other times had served as a president of the 3~1 University of Michigan and as a president of the 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 University of Maine. Q. Kenneth Lynch. A. Pardon me. He at one time was a president of the forerunner of the American Cancer Society. Kenneth Lynch, a pathologist, said to be the first one to use dogs in an attempt to produce lung disease with smoke, was at one time the chancellor of the University of South Carolina School of Medicine in Charleston. Q. When did he attempt to produce lung cancer in dogs? A. It's reported in the 50th anniversary seminars of the American Society of Clinical Pathologists and it gives his picture and a brief biography, and knowing that as a source, it would have been approximately, it's judge, 1940s, 1950s maybe. Q. Stanle-y Reimann? awfully hard to A. Stanley Reimann was from the Fox Chase Cancer Center in Philadelphia. He was a pathologist and expert on cancer diagnosis and interested in experimental pathology. 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 I i CTR i i! Z 014605

Sommers - direct 117 Q. 3 William Reinhoff, Jr.? A. William Reinhoff, a pioneer thoracic surgeon from Johns Hopkins. Q. Edwin Wilson? A. Edwin Wilson, professor of mathematics and 61 epidemiology at Harvard University, I believe 7; School of Public Health. 8 9 10 11 12 13 14 15 16 17 18 19 20 Q. Richard Bing? A. Richard Bing, a cardiologist, first to do a number of investigative procedures. diaanostin nn human beings, at present working for the Huntington Memorial Hospital, Pasadena, California. Q. How old of a gentleman is he? A. He is over 70 and I just don't know how old. Q: Howard Andervont? A. Howard Andervont, an experimental pathologist, a long-time employee of the National Institutes of Health, especially interested in carcinogenesis. Q. Clayton Loosli? 21i A. A physician and experimental pathologist, 22I particularly interested in chronic lung disease I 231 and its production by such agencies as artificial I 24~ smog at University of Southern California. 25 Q. William U. Gardner? I waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 Ci R l i i 1 014606

Sommers - direct 118 1; A. Professor of anatomy, Yale Medical School, i 2', former president of the International Union I . 3I Against Cancer, life-long interest in experimental 4 5 endocrinology, particularly manipulations in mice that would lead to cancer and former scientific 61 director. I 7; Q. How old is he? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Well, again, I don't know, but he is over 70. Q. Hans Meier? A. Hans Meier from Bar Harbor Laboratories, a doctor of veterinary medicine, an expert in genetics. Q. How old is he? A. He died. Q. John P. White? A. John P. White, a pathologist, former chairman of pathology at St. Louis University School of Medicine and at the University of Manitoba School of Medicine of Winnipeg, particularly interested in pulmonary diseases including occupational diseases. Q. Averill A. Liebow? A. He is a pathologist, the leading authority on the diagnosis of a wide variety of human being 25; lung diseases, l , waga and spinelli 405 Nonhfi°ld Avenue certified shorthand reporters oi i°3iasss"6"" J. 07052 CTR MN 014607

Sommers - direct 119 ~ Q. Henry T. Lynch? i A. Henry T. Lynch, an epidemiologist, who is employed by the School of Medicine 4 ; I I 51 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Nebraska. Q• Joseph Feldman? in Omaha , A. Joseph D. Feldman, a pathologist and immunologist, formally with Scripps Research Institute, La Jolla, California and editor of the Journal o.f Immunology. Q. How old is he? A. The same age as myself, within Q. You are 70? A. Yes. Q. Lee W. Wattenberg? A. Yes. A physician particularly a few months. interested in nutrition and to some extent its relationship to cancer and employed by the University of Minnesota. How old is he? A. I just don't know. He is younger by some years than myself. Q. John Craighead? A. John Craighead, chairman of pathology, 231 University of Vermont School of Medicine, a 24 pathologist with wide interests including diabetes 25; and occupational lung disease. , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731 •9666 CTR tii, 014608

Sommers - direct 1 Q. Roswell Boutwell? 2' A. A biochemist at the University of Wisconsin 3, Medical School, authority on aspects of 4i carcinogenesis, a biochemist by training. Q. Gordon H. Sato? A. Dr. Sato, an expert in tissue culture and i 71 now director of the Austin Jones Tissue Culture I 8 Center in Lake Placid, New York. 120 91 Q. You said that these gentlemen in 10 11 12 13 14 15 16 17 18 19 20 their capacity as members of the Scientific i Advisory Board would review proposed grants. Is i i that r~nrrpct? i I A. No, not proposed. They would review grant ; proposals or applications. MR. HARTZELL: Could we take a break. We have gone about an hour and a half. Let's just take a short break. (Short break.) Q. Dr. Sommers, before we took the break, we were talking about grant proposals and how the 21i Scientific Advisory Board of the Council for 22, Tobacco Research reviewed those applications or 23i proposals. Can you tell us, sir, from an 24; administrative perspective how that review 25, occurred? i waga and spinelli 405 Northfield Avenue West Orange• N. J. 07052 certified shorthand reporters 201•731-9666 CTR HN 014609

Sommers - direct 121 1i A. Yes. Anyone interested may submit an I 2~ application for funding on a subject of his or her 3~ interest. The office sfaff gives these an 4` accession number and a member of the scientific ~ 51 staff assigns a subcommittee of the board - it may 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I be two, three or four individuals -- in the fields of their particular disciplines to review the application and prepare written critiques. In case the staff or any of the committee considers that additional outside reviewers should also be obtained, telephone calls or letters or both to experts in the particular scientific field are sent out requesting their making a similar critique. Then at the time of the meetings of the SAB for grant action, the chairman of the SAB calls up by name of principal investigator each of the applications. At that point he directs the members of the assigned subcommittee in whatever order he chooses to read out to the entire board the written critiques. This is done, also the critiques of any outside reviewers are read. Then there is general discussion. After that-the chairman calls for a 25; motion to approve or disapprove the grant so far I ~ waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR , iN 014610

Sommers - direct 122 ~ ll 2 ! ; 41 5 i 7 ! 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 as possible funding is concerned. The motion carries one way or the other. Then each individual board member*writes out a ticket of relative importance or value or quality of this application on a scale of one to five, one being of the highest merit and five of the lowest. These are collected and averaged by an administrative person in the room, and after the meeting is over, the average of the values are arranged in order from highest value possible being 0.,0 to lowest, perhaps 4.5 or even 5.0, the applications that are denied. That's the end of the administrative handling except that a letter is sent out in which it is stated that your applica'tion has not been funded, that you may reapply at any other time on this or another subject if you wish. In the case of the grants that are approved and subsequently rated high enough for funding, a letter is sent out stating that your grant has been approved and we offer you X dollars for the first year of a proposed one-, two- or three-year investigation. In the case of those who are approved but not rated high enough for funding, a 25j letter similar to those that are denied goes out 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR MN 0 14611

SommeYs - direct 123 1~ which states that regrettably it wasn't possible 2; to fund your application. 3~ Q. There are just a couple of questions 4i I have with regard to this process. You said that 5I1 the scientific staff appoints a subcommittee. Is 6; that correct? 7 i A. Yes. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Who are members of the scientific staff? THE WITNESS: There is some kind of odd restriction as to dates. Does this apply? MR. HARTZELL: We are talking about prior to '82, up to January 1, '82 on all these questions if that makes a difference. THE WITNESS: Yes. A. Dr. Hockett, the research director. MR. HARTZELL: What's the question? Q. Who are the members of the scientific staff? MR. HARTZELL: Of the CTR, okay. Dr. David Stone, Dr. Vincent Lisanti, Dr. A. Donald Ford. Q. Do you know for what period of time Dr. Hockett was the research director of the 25' Council for Tobacco Research? i waga and spinelli 405 Northfield Avenue West Orange. N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 014612

Sommers - direct 124 A. From the time that I joined the SAB until about 1969, he was research director. After 1972, he was again research director and th is continued i hi i 4 s ret rement. unt l 5 Q• Who was scientific direc tor between 6 1969 and 1972? 7 A. The same scientific director for part of 8 that time as original, Dr. C. C. Litt le. 9 Q. I'm sorry. I misphrased that. I 10 meant research director. Who was rese arch 11 director for 1969 and 1972? 12 A. Between 1969 and 1972, not entir i e years, I ! i 13 served as research director. i 14 Q. Who appoints the research director? i 15 A. The chairman, the president, and in the days ~ 16 there was a vice-president, a vice-president. I i 17 Q. You are not talking about the ! i 18 chairman of t he Scientific Advisory Boa i rd, are you? f 19 A. No. I I 20 Q. You are talking about t he chairman i 21 for the Counc il for Tobacco Research . I . I 2 I 2 A. Yes . 23 Q• Who was the chairman of th e Council 24 for Tobacco Research? 25 ; A. In what year? 405 Northtield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 C i R HN 014613

Sommers - direct 125 Q- During the entire period of time that 2 you recall up to 1982. 3 ~ A. My memory is that when I first joined the SAB in 1966, the chairman was Mr. Henry Ramm. Then-he was replaced by, and it's getting late, 61 1 memory is not immediately available, a person from Louisville, Kentucky. 8 Q. Addison Yeman? 9 A. Yes. And then following Mr. Yeman, there 10 came Mr. William Hobbs. The exact title of all 11 three was not necessarily identical. 12 Q• Henry Ramm before he became chairman 13 for the Council for Tobacco Research held what 14 position with what tobacco company? 15 MR. HARTZELL: If any, if he knows. 16 A. At one time, Mr. Ramm, I believe, was 17 general counsel of what was then called Reynolds 18 Corporation. 19 Q. What position, if any, did Addison 20 1 Yeman hold wi th an y tobacco company prior to his i 21 1 becoming chairman of the Council for Tobacco i 22 ! Research? 23 A. He was gener al counsel of Brown & Williamson 24 Tobacco Company in Louisville. 25 i Q. What, if any, position did Mr. Hobbs , 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 201-731-9666 certified shorthand reporters CTR i iN 014614

Sommers - direct 126 I have with any tobacco company prior to his becoming chairman of the Council for Tobacco Research? 4'; A. He was the president of the cigarette manufacturing part of Reynolds Corporation. 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Who was the president of the Council for Tobacco Research? A. As I intimated, the titles changed and I believe that Mr. Ramm was called president and I believe that his successor was called president and I believe that the first person called chairman was Mr. Hobbs. Q. Who was the vice-president? A. Mr. Hoyt. Q. Mr. Hoyt was also known as the executive director at different points in time? A. I just don't remember that. Q. Do you recall that Mr. Hoyt was previously associated with Hill & Knowlton, a public relations firm? A. No, I didn't know that. Q. Do you know that Hill & Knowlton did public relations work for the Tobacco Institute? A. In a deposition, not of me but of someone else, I have read that and that's the only basis waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731•9666 CTR HN 0 146 1 E5

Sommers - direct 127 1! ; 2I for my knowing that. Q. Do you know that Hill & Knowlton was 31 public relations counsel for the Council for 4 arch or its redecessor? b s T R i p o acco e e A. No, not except possible testimony or 6 deposition by some other person that I've read. Q. What other transcripts have you 8 reviewed, sir, other than your own? 9 A. You see, we are restricted by this 1982 10 business. 11 Q•, You can tell me what transcripts you 2 d 1 rea . 13 MR. HARTZELL: Yes. He is not 14 talking now in preparation for this deposition. 15 MR EDELL: Corre t . c . 16 A. Mr. Gurtenbach, the current president, has 17 made a deposition in respect to one or the other 18 of the suits that we already talked about and I 19 believe it was in that. 20 Q. The scientific director appo ints the 21 subcommittee to review certain grant prop osals in 22 their given field of expertise. Is that correct? 23 A. No. 24 ! Q. No? i 25 A. No. ~ , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR t iN 0 14G 1G

Sommers - direct 1 Q. I 2' thought you Who appoints the subcommittee? I said A. A member of the scientific staff. Q. Who are other members of the scientific staff? 6~ A. I told you. 7I MR. HARTZELL: He just went through 8 9 10 11 12 13 14 that. 128 Q. It's not just the scientific director who would do this appointment, right, make these appointments? A. No, it wouldn't be. As I answered you, the assignment of subcommittees is done by the scientific staff. 151 Q. The scientific staff collectively 16 17 18 19 20 21 22 23 24 makes that decision or is there one person? A. I don't intervene in that process so my answer would be ordinarily either one of two persons. Q. Who would those two persons be? A. Dr. David Stone, Dr. Robert Hockett, now out of the time frame of 1982. MR. HARTZELL: No, you shouldn't. Q. During the relevant time period as i 25! Mr. Northrip has described, that being up to 1982, i ` waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 tr t Fi t t N 0T, '"1' Gt,i`"

Sommers - direct 129 ~ 1` it was either Dr. Hockett or Dr. Stone or both who 2 appointed the subcommittee? A. That was generally the case. 4i Q. These people were appointed by the 5 chairman of the Council for Tobacco Research ? 1 6 A. No. I 7 Q. Or the president of the Council for 8 Tobacco Research? 9 A. No . 10 Q. Who appoints the scientific sta ff? 11 A. Oh, I thought you meant the Scientifi c 12 Advisory Board. 13 N Q. o. 14 A. Yes. 15 Q. Let me start from the beginnin g. The 16 chairman or the president of the Council fo r 17 Tobacco Research appoints the scientific st aff. 18 Is that correct? 19 A. Employs them, yes. 20 Q. Employs them. The scientific staff 21 determines which members of the Scientific 22 Advisory Board will comprise a specific 23 subcommittee to review a grant proposal. Correct? 24 A. Correct, with or without outside reviewers. 25 1 Q. That decision fox outside reviewers 405 North}ield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201•731•9666 l..r i i°'+ i i N 014GIs..s

Sommers - direct is made by whom? A. Anyone on the board or any of the subcommittee. 130 i Q. Are the grant proposals themselves 5~ passed out to other members of the Scientific 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Advisory Board other than the members of the subcommittee? A. Is this again in the time frame before 1982? Q. Yes. A. The answer is yes. Q. With regard to grant proposals submitted by members of the Scientific Advisory Board, who reviews those grant proposals? A. They are reviewed in a similar manner to any other grant proposals with the usual rule that a person involved leaves the room during any consideration. Q. You have received grants for proposed research, have you not, from the Council for Tobacco Research? A. Yes. Q. Have any of your applications up to 1982 been denied? A. Up to 1982? 25 ; Q. Yes. waga and spinelli 405 Northfield Avenue West orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 014619,

Sommers - direct 131 1~ A. I don't believe so. 2~ Q. Do you recall receiving over $350,000 31 worth of grant money from the Council for Tobacco 4! Research over the years? i 6 ~ i 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 MR. HARTZELL: Over what number of years are you talking about? MR. EDELL: During the time period that he received grants from the Council for Tobacco Research. MR. HARTZELL: Why don't we get the years . MR. EDELL: He knows it better than I. A. I wouldn't remember the total amount. I would have to refer to documents in order to answer that appropriately. Q• Are there documents which summarize how much each individual grantee has received cumulatively over the years? A. I don't think so. Q. Are you aware that Dr. Bing has received over $700,,000 worth of grants from the Council for Tobacco Research? A. Like myself, I would not know the total. 241 Q. Are you aware that Dr. Loosli has 25j received over $600,000 in grants over the years? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201•731•9666 C TR H N 0 14 G 20

Sommers - direct MR NORTHRIP: Wh 132 . en you ask, are you asking as to an individual or on behalf of an • organization or as a -- MR. EDELL: As a grantee . 5 61 Q• You understand that, don't A. Yes, same answer. Let me explain you? that n o 7 individual is ever directly awarded any money. It 8 must be awarded to the institution or organization 9 where the individual works . 10 Q. But it's for work proposed by that 11 individual ? 12 A. Yes. 13 Q. In that individual's area of inquiry 14 or interest. Correct? 1 A Ye 5 . s . 16 Q. You are aware that Dr. Henry Lynch 17 has rece ived over $600,000 in grant money from the 18 Council for Tobacco Research? 19 A. Ye s. 20 Q. Are you aware that Dr. Meier has 21 received over $500,000 in grant money from the 22 Council for Tobacco Research? 23 A. No, I wouldn't know that. 24 Q. Was it ever suggested that maybe for 25` those grant proposals made by members of the I waga and spinelli 405 Northfield Avenue certified shorthand reporters 20ei ~O;a9666N. J. 07052 i CTR HIN 0146221

Sommers - direct 133 Scientific Advisory Board that someone other than the members of the Scientific Advisory Board review those proposed grants? A. That was a requirement, yes. Q• 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 So there would be outside people who reviewed those proposed grants also? A. Usually two outside reviewers. Q• When was that process instituted, sir? A. It's hard to remember but it's quite a few years ago. Q. When you say quite a few years ago -- A. I think maybe at the end of Mr. Ramm's service as president. Q. When was that? A. Again, I have to be, I have to look at documents to see. Q. Who decides on the individual outside of the Scientific Advisory Board who reviews grant proposals of members of the Scientific Advisory Board? A. The scientific staff attempts to get well known or outstanding experts in the particular 23~ field who are willing to write critiques. 24 Sometimes members of the subcommittee suggest 25~ additional people. ~ waga and spinelli 405 Northfield Avenue certified shorthand reporters West Orange, N. J. 07052 201-731-9666 CTR HN c~~~~~~

I Sommers - direct 13 4 Q. For all such outside critiques - 21 when I say outside, I mean people outside of the 31 Scientific Advisory Board -- are there records 4 reflecting those critiques ? 5 A. Permanent records of critiques, if any, are not kept by me for periods longer than a couple of 7 months after the meeti ng was held. Whether they 8 are kept in the files of individual applicants or 9 ot st don't know I j n , . u 10 Q. The grant proposals, were th ey 11 reviewed with regard to their relevance t o 12 cigarette smoking and health? 13 Yes A . . 14 Q. Was that the primary issue t hat the 15 Scientific Advisory Board concerned itsel f in 16 reviewing these particular grants? ( ( 17 A. No. Scientific merit equal to or o f greater ~ ~ 18 importance than relevance but both to be I 19 d id I ere . cons 20 So there would be grants aff Q orded to . I 21 cig arette I ~ ~ ~ 22 smoking and.health. Is that correct? I ~ 23 MR. NORTHRIP: Object to tha t as misst atinc ~ 24 the testimony. 25j MR. EDELL: That's what I'm trying to waga and spinelli certified shorthand reporters 405 Nonh/ield Avenue West Orange, N. J. 07052 201•731•9666 Ct R t i N 0.4 "Z" `J 2-3

Sommers - direct find out. the question. MR. PARRISH: Object to the form of A. Some basic biomedical research I 5. investigations were not immediately relevant to smoking and health. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Q• What, if any, role did the chairman 135 of the Council for Tobacco Research play in deciding which grants should be afforded by the Council for Tobacco Research? MR. HARTZELL: Supported? MR. EDELL: Afforded. Didn't I say grants afforded? MR. HARTZELL: Reframe that. I don't really understand what you mean, if you don't mean supported. A. The question -- MR. KOELTL: Could we have the question read back. MR. EDELL: If it's a stupid question, I'll try to rephrase it, Dr. Sommers. MR. HARTZELL: Rephrase it. 23~ Q. What, if any, role did the chairman' 24 or the president of the Council for Tobacco 25; Research play in the approval of any grants which waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR i {S • 014624

Sommers - direct 136 were reviewed by the Scientific Advisory Board of the Council for Tobacco Research? 3 , A. None . 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ please. MR. EDELL: Would you mark that, (Sommers Exhibit 12 marked for identification.) Q- Dr. Sommers, you have before you a letter of September 23, 1981 which we marked as Sommers Exhibit 12 for identification. Is that your signature on that document? A. Yes. Q. Do you recall preparing that document? A. Yes. MR. EDELL: Would you mark this for identification, please. (Sommers Exhibit 13 for identification.) Q. Dr. Sommers, I show you what has been marked Sommers Exhibit 13 for identification. It's a letter from you to Dr. Little of August 19, 1971. Do you recognize the handwriting on the front page of that document? It's a little faded. A. I see no handwriting on the front page. It's in the upper right-hand corner. waga and spinelli certified shorthand reporters 405 Nonhlield Avenue West Orange, N. J. 07052 201•731•9666 !.r TR t 1 i i 0.f. `'t' G2-1Ei

1 Sommers - direct It says file something. A. Illegible. 137 Q. That's the'way I was furnished it by your counsel. In any event, do you recall I 51.preparing this document, sir? Obviously there 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 isn't a signature on it. There's some handwriting on the second page. Do you see where it says seminar program? A. Pardon me. Q. Isn't that your handwriting? A. Yes,. That single word with a carat is my handwriting. Q. Were you research director in August of '71? A. Yes. Q. And Dr. Little held what position in 1971? A. He was still the scientific director. Q. Do you recall sending this letter to Dr. Little at that time? A. Not at that specific date but around that time, yes. Q. Who is Timothy V. Hartnett? A. I don' t know. 25j Q. You never had any contact with him? waga and splnell I 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR' HN 0146~'.6

Sommers - direct 138 11, A. I don't recall ever having any contact. 1 21 Q. Mr. Hoyt was executive director or what other position did 'you say he had, vice-president? Is that correct? A. Yes. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 please. MR. EDELL: Would you mark this, (Sommers Exhibit 14 marked for identification.) Q• I show you what has been marked Sommers Exhibit 14. Do you recognize the memo paper upon which that document is written? A. Yes. It states, "From the desk of W. T. Hoyt." Q. Have you received memos from Mr. Hoyt on that type of paper? i A. I have. Q. Do you recognize the handwriting on that document? A. No . Q. Are you familiar with the names which appear on that document, sir? A. With the exception of McArthur, yes. Q. Dr. Barger, that's Clifford, right? 251 A. There is a Clifford Barger. waga and spinelli certified shorthand reporters 405 Nonhlield Avenue West Orange, N. J. 07052 201•731•9666 ~.M t 1'~, ~ t i`i l~ .L `°Y' Fvli . ,:fV

Sommers - direct Q• A. Yes. I A. He was and may still be professor of 3~ physiology, Harvard Medical School. 4i Q. He had received grants from the S, Council for Tobacco Research. Correct? 6 7 1 Q. Dr. Essman? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A. He had been a grantee. Q. Do you know who he is? He received substantial funding from 139 the Scientific Advisory Board of the Council for Tobacco Research? Are you aware that he received over $400,000? A. I just couldn't give you an accurate answer. Q. The next doctor is Dr. Weltman, is it? A. Yes. Q. Who is Dr. Weltman? A. My memory of Dr. Weltman is that he worked for a small institution in Brooklyn and that he was interested in exposing rats to stress. Q. You don' t recall Dr. McArthur. Right? A. Unless refreshed or given initials, I just 22 don't remember McArthur. 23 MR. HARTZELL: Do you have a date on' 24 this document, counsel? 25 MR. EDELL: It's.not my document, waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 4 t'R t ;;'i 014G26

Sommers - direct 140 counsel. It's yours. MR. HARTZELL: That may be but do you have any date on it? It doesn't show any date at 6; That's why I'm asking the questions. 7 ~ MR. EDELL: It could have been any time. That's what I'm trying to find out. MR. HARTZELL: You are not. You 81 outside the time period. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 didn't ask him anything about a date I don't think. Q. Do you recall Dr. Fisher? A. There have been more than one Drs. Fisher so unless there's an initial or some other identification, I'm not sure as I can identify this Fisher. Q• A. Yes. Q• MR. EDELL: We are trying to find out. MR. HARTZELL: It could have been There's been an Edwin Fisher. Right? He received funding from the Council for Tobacco Research, right? A. Yes. 23 L Q. There's been a Russell Fisher and he 24I~ also received funding from the Council for Tobacco 25+ Research. Correct? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 C= i'd. HN 01"Y 629

Sommers - direct 2 3 A. Yes. Q• Do you know any other Fisher who 141 received funding from the Council for Tobacco Research? 5;- A. Yes, there are two others but not I think in 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the time frame. Q. Dr. Chalon? A. Dr. Chalon is an anesthesiologist in some institution in New York City. Q. Do you recall his having received funding from the Council for Tobacco Research? A. He was a grantee. Q. Dr. Severi? A. S-e-v-e-r-i . Q• Did Dr. Severi receive funding from the Council for Tobacco Research? A. Yes. Q. Could you read the handwriting in the upper right-hand corner of that document, sir? I didn't ask whether your counsel can. I asked can you. A. I can!t read that. It looks like n-e-w but then what the next word is I can't make out. Q. That looks like n-e-w to you, right? 25i Is that what you are saying? You read the first waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 CTR M~~ 014~r~0

Sommers - direct 11 word, n-e-w. How about the second word? i 2! A. I can't read it. Does it look like s-l-u-t-s? 142 A. I think that's the most offensive question I 51 ever heard and I assure you Mr. Hoyt would neither 6 write nor speak such a word. 71 Q. It doesn't look like that to you on 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 that document, right? A. I can't tell what it is. Q. What does it look like? MR. HARTZELL: He said he doesn't know. I direct him not to answer the question. He looked at it and he said he doesn't know and you're badgering him. Stop it. Don't argue with him when he tells you he doesn't know. He looked at it and it's hard to make out. Q. Do you recall whether or not any of the individuals who are listed on this document, Sommers Exhibit 14 for identification, ever concluded that cigarette smoking caused disease in human beings? A. Not to my memory. The Barger research may still be continuing outside the time frame and the 24j support of the Council for Tobacco Research. 25 Q. Who is supporting it now? 405 Northfield Avenue waga and spinelli West orange, N. J. 07052 certified shorthand reporters 201•731-9666 CTR ("N 01463-1

Sommers - direct 143 1 ~ A. I just don't know. I 2! Q. Who is Dr. Avito (phonetic)? ~ 3~ A. Dr. Avito is pharmacologist from 6 Philadelphia. Q. Are you aware that he has received over $300,000 from the Council for Tobacco 71 Research? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Not the amount but he has been a grantee. Q. He received substantial amounts from the Council for Tobacco Research? MR. HARTZELL: Objection to the form of the question. MR. PARRISH: Objection to the form of the question. Q. Si r? A. I don't know how you would define substantial so in that respect, I can't answer the question. Q. Do you recall Dr. Avito testifying at various hearings? A. I believe he either submitted a statement or appeared at at least one hearing. Beyond that, I don't remember. Q. Do you know who Dr . A-y-e-r is? 251 A. Could you provide his first name or initials? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CT HN N 01632

Sommers - direct 1; Q. Steven M. 2 A. The spelling of Ayer? 3; Q. A-y-r-e-s. I'm sorry. 4i A. Yes, I remember such a person. 5 Q. Do you recall his having testified ~ 6I before various Congressional hearings? 7 ~ A. No, I don't recall that. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q• Do you recall him receiving over 144 $110,000 from the Council for Tobacco Research? A. No, I don't recall that. Q. Do you recall whether Dr. Bing ever testified before any Congressional hearing? A. No, I don't recall that but I don't know about hearings at certain times that I might not have known of them. Q. Who is Dr. Barbara Brown? A. Barbara Brown was an electroencephalographist from California. Q• She received funding from the Council for Tobacco Research? A. She was a grantee. Q. Do you recall her having testified at Congressional hearings? A. No. 25 ~ Q. Dr. Edwin Fi sher., you recal l Dr. waga and spinelli 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 20,-73,-ss66 UP HN 014633

Sommers - direct 1 i Edwin Fisher? 1 2 ! A. Yes. Q. Do you recall Dr. Fisher receiving 4i funding from the CTR? 5 A. Yes. Already answered. 6II Q. Do you recall Dr. Fisher testifying 1 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 at Congressional hearings? A. Yes. Q. Dr. Russell Fisher, you recall Dr. Russell Fisher testifying at Congressional hearings also? 145 A. Yes. I Q. Who is Dr. Leuchtenberger? ( ' s a married couple. A. It Q. Who are they? A. Cecelie and the husband's first name I forget, a Germanic first name, Hans perhaps. Q• Are they from Switzerland? A. No. I think originally they were refugees from Germany, but when I first met them, they were working in New York City. Q. Are.you aware that they received over half a million dollars from the Council for Tobacco Research? 25! A. Not the amount but they have or one or the waga and spinelli 405 Northfield Avenue certified shorthand reporters ioi-`73iaess'6"' J. 07052 C T R M I N 0 14 G34

Sommers - direct 146 1 21 3I other have had grants from the Council for Research. Q. Do you recall one or the other Tobacco having 4 testified at Congressional hearings? 5 A. No . 6 Q. Who is Dr . G. E. Moore? 7 A. I don't recollect that person. 8 Q• Dr. Seltzer we already talked about. 9 Do you recall Dr. Seltzer testifying at 10 Congressional hearings? 11 A. I recall he provided statements. I d on't 12 literally recall if he testified. 13 Q. Dr. Severi, the same person th at's 14 referred to on that document we referred to before, 15 do you recall Dr. Severi previously testifying at 16 l h C i i ? ongress ona ear ngs 17 A. No, I don't remember that. 18 Q. Dr. Soloff is it? 19 A. Yes. 20 Q. Who is Dr. Soloff? 21 A. My memory is-that Dr. Soloff is a biochemist 22 and perhaps specially interested in pulmonary 23 f ti unc on. 24 Q. Do you recall Dr. Soloff receiving 25 over $800,000 from the Council for Tobacco 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 Lr i[aa t t i't 0.i. "C 631EE-

Sommers - direct 147 2 i Research? A. He has been a grantee but the amount I couldn't tell ou 4 y . Q. Do you recall him testifying at Congressional hearings? 7 A. No. Q. Who is Dr. Cantrell? 8 A. I don't remember Dr. Cantrell. 9 Q. Who is Dr. Carter? 10 A. First name or initials, please? 11 Q., I'll help you out. William A. 12 A. No, I don't recollect William A. Carter. 13 Q. Dr. Baer? 14 A. First initial L or name Leslie? 15 Q. I'll give it to you in a second. Yes. 16 A Y . es. 17 Q. Who is Dr. Baer? 18 A. He is a cardiologist, hypertension 19 specialist at Columbia College of Physicians and 20 Surgeons in New York. 21I Q. Do you know Dr. Baer personally? 22 A. Yes. 23I Q. How long have you known Dr. Baer. I 24; personally? 25; A. For about 20 years. ~ 405 Northfield Avenue waga and spinelli West Orange, N. J. 07052 certified shorthand reporters 201•731•9666 {1' { • "h \ i • { 01463G

Sommers - direct 148 1 i Q. Do you know he received over $400, 000 2 i in grants? 3; A. I know he is a grantee but the amount I 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 don' t know. Q. Dr. Benedict? A. The name is familiar but I would need Q. William F. A. Yes, the name is familiar. Q• Do you know who Dr. Benedict is? A. No, I don't recall his discipline or interest. Q. Dr. Castro? A. Yes. Q. Who is Dr. Castro? A. Dr. Castro is an experimentalist in biochemistry, although for a time in ill health, is still working in Miami, Florida. Q. Do you personally know Dr. Castro? A. I knew him when he was in good health. He may be so changed that I might not recognize him any longer. Q. What was his relation to you when he was in good health? A. I site visited his laboratory with others to 25i see if a grant or a continuation of his work could I N waga and Spinefli 405 Northfield Avenue certified shorthand reporters 2oi ioiesses6N. J. 07052 CTR HN 014637

6 149 1I be regarded as worth supporting. 2! Q. He wasn't a personal friend of yours. 3 ! A. Oh, no. 4 I Q. Dr. Chodosh? I 5 A. Yes. , 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Sommers - direct Q. Who is Dr . Chodosh? A. He is a pulmonary physician, a part of the lung station or was at Boston City Hospital. Q. Dr. Cochrane? A. Dr. Cochrane is on the staff of the Scripps Research Institute. Q. That's the institute that you were associated with back in 1961 and 1962. Is that correct? A. No. Q. Scripps Memorial Hospital, is that a different entity? A. Yes. Q. They are totally unrelated? A. The only relationship they had was the name Scripps. Q• Dr. Craighead? A. Already described in a previous exhibit. Q. Did you know Dr. Cochrane when you 25; were out in California? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 !. 1 r R t i N 014G316

Sommers - direct 150 1 2 A. Yes. Q• 3i were out there? i I 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Yes. Q. Dr . Crumpacker? A. Yes . Q. Were you friends with him when you Who is Dr . Crumpacker? A. I believe he worked for a university in the State of Colorado, and beyond that I just don't remember for sure. Q. Dr. Dom ino? MR. HARTZELL: Counsel, what is this? Just memory questions? You seem to know who all these people are. What's the point of testing Dr. Sommers' memory unless you have some question about it? . Q. Dr. Domino? A. He was a professor and his field I believe was biochemistry, and beyond that I have no memory. Q. Dr. Falk? A. F-a-1-k? Q. • Correct. A. No, I don't remember Dr. Falk. Q. Dr. Friedman? 25{ A. Again, I would need -- waga and spinelli certified shorthand reporters 405 NortMield Avenue West Orange, N. J. 07052 201•731•9666 Ci i`+r t i t Z 01`'F' 6-31-9

Sommers - direct 1 2 3 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A lot of Friedmans. Dr. Gary D. Friedman who received over $900,000 from the Council for Tobacco Research. A. Yes. A physician at Kaiser-Permente Hospital, a medical facility in Southern California. Q. What type of research was he doing? 151 A. He was interested in studies of the health maintenance organization population, particularly in respect to things like high blood pressure and heart attacks and including consideration of their smoking habits. Q- Dr. Galdston? A. Galdston at Cornell or NYU, I believe the latter, Bellevue Hospital, interested in enzyme differences that might affect lung function in humans. Q- Do you have any personal relationship with Dr. Galdston? , A. No. I have met with him as a part of two 231 site visits, but other than that, no. 24 Q. Dr . Heimstra? 25 A. Heimstra, my memory is not clear enough to waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014G40

1 2 5 6 7 8 9 10 11 Sommers - direct respond appropriately. Q. Dr. Homburger? A. Chief executive of a research organization in Cambridge, Massachusetts, many activities over the years. Essentially an entrepreneur in experiment pathology in medicine. Q. What do you mean by an entrepreneur A. Developed and organized a company which would provide services, would accept grants or contracts to do various kinds of testing for anyone in,terested. Q. 152 What type of work did he do which was funded by the Council for Tobacco Research? 16 17 18 19 20 21 22 23 A. At one time I recall that his organization, not necessarily himself, tested a horizontal versus a vertical animal smoking apparatus. Then at another time he was funded for studies involving the use of this kind of machine for inhalation studies of cigarette smoke by hamsters. At another time his organization did experimental work on exposure of mouse skin to a jet of fresh cigarette smoke and there may be other grants or contracts that I've forgotten. 24i Q. What is the American Society of 1 251 Experimental Pathology? , waga and spinelli 405 Northfield Avenue certified shorthand reporters oi i°siasss'6"' J. 07052 CTR HN 014G41

Sommers - direct A. The American Society of Experimental Pathology was an independent organization of people elected because of their interest and 153 41 accomplishments in the field of experimental 8 9 10 11 12 13 14 15 16 17 18 19 20 21 pathology. The society, I believe, no longer exists. It was absorbed into another organization. Q. What other organizations was it absorbed into? A. American Association of Pathologists, I believe. Q. Do you recall Dr. Homburger suggesting that the Council for Tobacco Research censored or suppressed some information that he was attempting to publish? A. No, I don't recall that. Q. Who is Leonard Zahn? A. Mr. Zahn is the public relations individual for the Council for Tobacco Research. Q. How long have you known Mr. Zahn? A. Since I joined the Scientific Advisory Board in 1966. 22 1 MR. EDELL: Would you mark this, 23~ please. 24~ (Sommers Exhibit 15 marked for 25; identification.) , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 !.r t R t t i-i 01464G.

Sommers - direct 154 MR. EDELL: I heard the doctor say to 21 you that he is fine when you leaned over to talk 31 to him while the court reporter was marking this 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document so I want to hear what you want to put on the record. . MR. HARTZELL: Dr. Sommers is fine but I think by 4:15, that's late enough for him today. MR. EDELL: Counsel, we started late today because of some problems that you had in getting here. MR. HARTZELL: That's right. MR. EDELL: If the witness is fine and feels he can go on, I don't feel any reason to make this such a short day. MR. HARTZELL: I'm sorry to make it a short day because I did arrive late and I couldn't help that. MR. EDELL: We can help adjourning this thing at 4:15. MR. HARTZELL: In view of the age of the witness and the general circumstances, I think we should stop about 4:15. Q. Dr. Sommers, do you feel as if you ~ are getting tired? . waga and splllefll 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR HN 0146413*

Sommers - direct 155 1; MR. HARTZELL: Whether or not he ~ 2! answers your question that way, he is getting 3 j tired. 4; MR. EDELL: You know that he is 5I getting tired? 6 MR. HARTZELL: I know that he is 7j getting tired and that's why we are going to stop. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 MR. HARTZELL: I'll do what I please, MR. EDELL: You can do whatever you MR. HARTZELL: That's exactly right 231 and we will complicate getting this deposition 24 you, counsel. MR. EDELL: It's more testimony by MR. HARTZELL: That's the way we are going to do it and you are not going to tell me what's appropriate for my witness. We are going to take into account the witness' age and situation. MR. EDELL: Don't point your finger at me, counsel. You can talk without pointing completed as best we can but I think when you get i 251 to the latter part of the afternoon w.ith this waga and spinelli 405 Northfield Avenue certified shorthand reporters o°i i°3iasss'6" J 07052 CTR HN 014644

Sommers - direct 156 1! witness, we will have to stop. 2 A. You asked me a question. 3j Q. Yes. I was in the process of asking I 4~ you a question. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A. Yes. I'm getting tired. Q. Do you recall just previously telling your counsel that you were fine? MR. HARTZELL: He is not going to answer the question. Counsel, the room is muggy and hot. MR. EDELL: I'm fine, counsel. MR. HARTZELL: You may be fine but frankly I'm getting a little tired myself but that's all irrelevant. MR. EDELL: If you wouldn't get so agitated, maybe you'd be more comfortable. MR. HARTZELL: I'm telling you we are stopping at 4:15 and I won't let the witness answer any more of your badgering questions. Th e witness is 70 years old and you won't badger him and if you keep badgering, we will cut the whole 22, deposition off. 23I MR. EDELL: I'm not badgering but 24 don't threaten. 25, MR. HARTZELL: You treat him 405 Northfield Avenue waga and spinelli West Orange. N. J. 07052 certified shorthand reporters 201-731•9666 CTR HN 014645

Sommers - direct 157 respectfully and appropriately and we will do the same with you. MR. EDELL: I have been. MR. HARTZELL: When you fool around 8 61 MR. EDELL: I have been treating him i 9 10 Sommers 15 for identification. A. Yes. Q. Would you take a look at that document, sir. 7 respectfully. 17 Dr. Sommers, you have before you 18 19 20 21 22 231 Q. Was there a Henry employed by the 24! Council for Tobacco Research in 1974? 25 and try to badger him, we won't have it. MR. KATZ: You are wasting a lot of time, M,r. Edell. Why don't you get on with your questioning. Q. ~ A. (Examining document.) I've looked at it. I Q. This doesn't refresh your I recollection with regard to the assertion that Dr. Homburger felt that there was some type of censorship or suppression of information that he wanted to disseminate. Is that correct? A. I never heard nor read such a thing before. A. That would be Mr. Ramm. , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR IHIN 014646

Sommers - direct 158 li Q. He was president at that time of the 2j Council for Tobacco Research? 3 ~ A. Yes. 4 ~ Q. Was there a Tom employed by the 51 Council for Tobacco Research at that time? 6 H A T ld b M t , e . om wou r. oy . i i 7~ Q. You've recei ved over the years 8 communications from Mr. Z ahn, have you not? 9 A. Yes. 10 Q. Do you recog nize this stationery to 11 be his stationery? 12 A. Yes. 13 Q. When I say t his, I'm referring to the 14 document Sommers Exhibit 15 for identification. 15 You understand that. Correct? 16 A. Yes, and it's a photocopy and I do recognize 17 the stationery. 18 Q. Do you know Judy Graves? 19 A No . . 20 Q. Would you describe Dr. Homburger as 21 an operator? 22 MR. HARTZELL: I'll object to the h 23 form. ead. Go a 24 A. I don't like to express under oath unfavorable 25! opinions about anyone who is not a subject of l waga and spinelli 405 Northfield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR 11-11N 0 1464"

Sommers - direct 159 investigation of some crime or other serious matter and all I will say is that before that time, 31 as an officer of the New England Society of Pathologists and appointed to a subcommittee, we 5i had a serious problem with Dr. Homburger. 6j Q. What was that serious problem that i 77 you had with Dr. Homburger? 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. He offered in an advertisement the services of a professional pathologist. Q. What type of advertisement are you referring to? A. It was an advertisement in the New England Journal of Medicine. Q. When did that occur? A. I don't remember. Q. Was it before, after or during the time period you received over $500,000 from the Council for Tobacco Research? MR. PARRISH: Object to the form of the question. A. It antedated my receiving any funds from the Council for Tobacco Research. Q• funds? 25~ A. Yes. ~ It antedated your receipt of any waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 CTR HN 014646

Sommers - direct 160 li Q. Were you aware that Dr. Homburger, 2~ beginning in 1955, received funding from the 3j Council for Tobacco Research? 4i A. Not before I joined the Scientific Advisory 5 I Board . 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Q. After you joined the Scientific Advisory Board, did you become aware of that fact? A. Yes, because there were subsequent grants or contracts or both. Q. He continued to receive those grants up through and including May of 1968. Correct? A. I just don't recall that. Q. Do you recall why his grants were no longer approved? A. Not other than from reading parts of Exhibit n umber 15. Q. In what way does your review of Exhibit 15 answer my question? I A. Fourth paragraph, item three, "Homburger had j I not lived up to the terms of his contract with CTR." ~ 211 Number four 22( Q. What terms did he not live up to? 23~ A. I'm just quoting from a document. 24 ~ Q. You said that refreshed your 25 recollection with regard to -- \ waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 Ci R i i i i 014649

Sommers - direct I 11 A. It's the only way that I can presently have my recollection refreshed. Otherwise I would probably not be able to remember 161 anything about it Q. Do you know what terms of his contract he failed to' live up to? 61 A. No. Number four, "Homburger obviously was I 71 sore that his contract was not being renewed 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , waga and spinelli certified shorthand reporters because its intended goal had not been attained." Q• What was the intended goal? A. Not being certain of which of the many contracts or grants or both that he had, I couldn't be absolutely certain but his main contention was that he had been successful in producing carcinoma of the larynx of hamsters exposed to cigarette smoke and I personally knew that that was not true. Q. How did you know that that was not true? A. I had examined the microscopic slides. Q. So he reported false conclusions. Correct? MR. HARTZELL: Object to your characterization. A. I'm not sure whether he did or did not report them. 405 Nonhtield Avenue West Orange, N. J. 07052 201-731-9666 ~`~P H~~ 014G~~O

Sommers - direct 1; Q, How did you become aware of his I 2! conclusion that he had produced cancers of the larynx? 162 41 A. He later advertised that he would sell a 5; special kind of hamster that you or anyone might 61 use if they wanted to produce cancer of the larynx. 7 8 9 10 11 Q. When did you review the materials which he concluded suggested that these cancers of the larynx had been produced? A. All I could remember, as indicated by this Exhibit 1,5, is it must have been before April of 1974. 17 18 19 20 21 22 23 MR. EDELL: Pathology. I'm sorry. I 24 didn't make that clear. 25! MR. HARTZELL: Counsel, it seems to 16 Q. Was the work that Dr. Homburger was doing work that came within the purview of your expertise? A. The pathology, yes. Q. Who other than you had expertise on the Scientific Advisory Board of the Council for Tobacco Research in 1969? MR. HARTZELL: In -- MR. EDELL: In 1969. MR. HARTZELL: Expertise about what? waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR t t i'°t « k4C~J 5-1

Sommers - direct 163 1; me we went through the list on Sommers Exhibit 11 i 2'I and that Dr. Sommers already mentioned the special 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 fields of those people, including those who were pathologists. A. On the board wi.th such expertise -- Q• In May of 1969 we are referring to. A. -- would be Dr. Kenneth Lynch, Dr. Andervont, Dr. Loosli. Q• Were you one of the members of the subcommittee which reviewed Dr. Homburger's application in 1969? A. I don't remember that. Do you recall discussing the subject of cigarette smoking and lung cancer with other members of the Scientific Advisory Board and their conclusions in regard to whether or not cigarette smoking caused lung cancer in human beings? A. In respect to the board as listed, I recall discussing it with Dr. Reimann, having discussions with Dr. Rienhoff, with Dr. Wilson, but that before I became a member of the SAB, with Dr. Loosli. You asked about 1969? Q. At any time. 241 A. With Dr. Wyatt, with Dr. Liebow. That's it. 25~ Q. Have you ever discussed it with Dr. waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 CTR HN 014652

Sommers - direct 164 ~ Huebner? ( A. I just don't recall. 3'~ Q. Do you recall Dr. Huebner relating to 4) you at any time that he was convinced that 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 cigarette smoking combined in some way with a virus to cause lung cancer? A. No, I don't recall that. Q. Do you know whether or not he holds that opinion or ever held that opinion? A. No. Q. You never saw a written document in which he expressed that opinion. Is that correct? A. Not that I recall. Q. Did Dr. Huebner join the Scientific Advisory Board about the same time that you did? A. From this list, about two years later. Q. Who decides who's appointed•to the Scientific Advisory Board? A. The members. Q• The members of the Scientific Advisory Board? 22 1 A. Yes . 231 Q. How does that process work? 241 A. Let us suppose that Dr. Cattell has resigned ~ 251 because of age and incapacity•to serve. ~ waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731•9666 I C T R_ H N 0 14 6 E523'

Sommers - direct Pharmacology is considered an important subject. The members of the board and any scientist that 3! any of us know are asked for somebody that's active in research 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 165 in pharmacology who has a broad and deep knowledge of the field and who is still doing some research and if such a person or persons are found, they are invited as a guest speaker at one of the meetings of the Scientific Advisory Board and they are usually persons who will speak on something so new it hasn't been published. Then after that and consideration of what kind of a person this is, whether they indeed appear to have broad and deep knowledge, then they may be offered membership on the board. How was the original Scientific Advisory Board appointed? A. I don' t know. Q. You were never told that? No one ever discussed that with you? A. No. Q. Out of, curiosity, is Henry Lynch related to Kenneth Lynch? A. No. 241 Q. Does the appointment of a board 25; member have to be approved by anyone? waga and spinelli 405 Norttitield Avenue West Orange, N. J. 07052 certified shorthand reporters 201-731-9666 CTR- 11-11N 0146154

Sommers - direct A. Yes. The letter of invitation to join is written either by the president or in former days 166 3; by the vice-president with the agreement of either i 41 the president or chairman. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q• When you say president or chairman, you are referring to the president or chairman of the Council for Tobacco Research? A. Yes. Q. You indicated that the letter of invitation goes out under that individual's signature. Does that individual have the right to either okay or deny the approval of a member to the Scientific Advisory Board? A. I think since those are the chief administrative officers, I think that they actually have that right. Q• What leads you to that conclusion? MR. HARTZELL: He just explained the reason he thought so. A. Once a person is committed to membership on the Scientific Advisory Board and thus expected to attend meetings and work at home on applications, there is some recompense and I don't believe anybody short of the senior administrative officers would , be permitted to make a decision waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 Lr i i'i. t i i i 0 14 G E5 ,..f

Sommers - direct 1; involving recompense I 2 Q. administrative officer to decide compensation and the amount of compensation. A. No, not the amount. Simply as a part of membership and attendance at meetings involving 167 3! determination of compensation to those individuals? 4; A. It's a matter of per diem. ~ 5i Q. What I'm talking about is that it's i 6i ultimately the decision of the senior 8 9 10 11 12 13 14 point? 18 19 20 travel, there are airfare expenses, hotel expenses and a per diem is offered. I don't know that that's recompense. At least the members feel that 1 they do far more work than they are recompensed for attendance at meetings. Are you talking about their MR. HARTZELL: Is this a good break MR. EDELL: I just want to make sure I understand the witness' statement. Q• In other words, the chief executive 211 officer of the Council for Tobacco Research can 22 23 24 veto a proposed Scientific Advisory Board member's new appointment or new member's appointment? A. I don't think after the Scientific Advisory 25! Board, including its chairman and the scientific waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange. N. J. 07052 201-731-9666 CTR t 1 E "'t 01`°E GED6

Sommers - direct director and the research director, have agreed, 168 that it's possible for the chief executive officer t t 4 o ve o. Q• What you are saying is if the 5 Scientific Advisory Board and the scientific 6 director agree, then it would not be the senior 7 administrator's prerogative to veto that 8 a ointment Is that corr t? pp . ec 9 A. Yes. Include also the research director. 10 Q. The research director and the 11 scientific director are both appointed by whom? 12 A. The research director and the scientific 13 director being employees of the CTR are ultimately 14 appointed by either the chairman or president. 15 Q. When you say ultimately, are they 16 preliminarily appointed by somebody else? 17 A. It's quite a job to get either a research 18 director o r a scientific director and there has to 19 be agreement on the part of everyone involved that 20 the person will actually come and serve and that 21 they will be acceptable to the Scientific Advisory 22 Board, the scientific staff and the scientific 23 director, and at that point, if the negotiations 24 result in an appropriate remuneration situation, 25 then the person will be employed. , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201-731-9666 C T R H I N 0 14 6 1E.- ilrl

Sommers - direct 169 Q. 2! contributes to the decision-making process as to 3f who will be appointed as a scientific director or i 4 the research director. Is that correct? A. 6 ( I Especially the scientific director. Ordinarily the scientific director will 71 participate more than the Scientific Advisory 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Board in choosing, helping to choose the research director because the two offices or jobs are more closely interrelated. Q• The Scientific Advisory Board What, if any, participation does the board of directors of the Council for Tobacco Research have in this decision-making process? A. Which decision-making? Q. In appointing the scientific or research director. A. I don't believe any. MR. HARTZELL: We will resume at ten and I'll do everything possible to be here. MR. EDELL: I'll be happy to be here before ten. Unless,the witness has to sleep late in the morni'ng, I'll be happy to start at nine if he gets tired late in the day. MR. HARTZELL: I would be willing to 251 start at 9:45. , waga and spinelli certified shorthand reporters 405 Northfield Avenue West Orange, N. J. 07052 201•731•9666 ! .r ! f"r. t t i "i « 1"t" GE36

Sommers - direct 170 THE WITNESS: Would it be all right with the court reporter? NR. HARTZELL: I'm sure i t' s okay with her. THE WITNESS: 9:45. (Deposition adjourned at 4:30 p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 j I 23 ! 24 ' I 25 , waga and spinelli certified shorthand reporters 405 Northtield Avenue West Orange, N. J. 07C 201-731-9666 C TR H N 0 14 G E: 0 B

171 1 JURAT I, SHELDON C. SOMMERS, do hereby 3` certify that I have read the foregoing transcript 41 1 of my testimony, taken on Thursday, October 2, 5 1986, and have signed'it subject to the following 6 changes: 7 PAGE LINE CORRECTION ---- ---- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 DATE: 22 Sworn of and subscribed-to before me this day 23 NOTARY PUBLIC 24 25 waga and spinelli 405 Northfield Avenue certified shorthand reporters Oet ~31a9666N. J. 07052 CIR HN 014660

0 1 C E R T I F I_C_A`T E 172 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, MARGARET J. TEILHABER,-a Certified Shorthand Reporter and Notary Public of the States of New York and New Jersey, do hereby certify that prior to the commencement of the examination the witness was sworn by me to testify the truth, the whole truth and nothing but the truth. I do further certify that the foregoing is a true and accurate transcript of the testimony as taken stenographically by and before me at the time, place and on the date hereinbefore set forth. I do further certify that I am neither of counsel nor attorney for any party in this action and that I am not interested in the event nor outcome of this litigation. Notary Public of the States of New Jersey and New York New Jersey certificate No. X100856 New Jersey commission expires August 7, 1991 New York Registration No. 4741157 New York term expires March 30, 1987 Dated: WAGA & SPINELLI, 405 Northfield Avenue, West Orange, N.J. 07052 __ CTR MN