Council for Tobacco Research
Deposition of Freddy Homburger, M.D. [Deposition of Homburger in the Matter of Broin]
Fields
- Master ID
- Ctrmn00041967-2810
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- Author
- Bohan, A.H.
- Homburger, F.
- Depository Date
- 08 Sep 1997
- Box
- 267
- Type
- TRANSCRIPT
- UCSF Legacy ID
- mmt30a00
Document Images
1
Volume I
Pages 1 to 147
Exhibits 1 - 12
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
IN AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
-x
NORMA R. BROIN, et al.,
Plaintiffs,
`I s .
PHILIP MORRIS COMPANIES, INC.,
et al.,
Def endants .
: Case No.
: 91-49738 CA22
-x
DEPOSITION OF FREDDY HOMBURGER, M.D., a
witness called on behalf of the Defendants Philip
Morris Incorporated, Philip Morris Products, Inc.,
and Lorillard, taken pursuant to the Florida Rules
of Civil Procedure, before Anne H. Bohan, Registered
Professional Reporter and Notary Public in and for
the Commonwealth of Massachusetts, at the Offices of
Goodwin, Procter & Hoar, 53 State Street, Exchange
Place, Boston, Massachusetts, on Tuesday, May 27,
1997, commencing at 11:10 a.m.
PRESENT:
Stanley M. Rosenblatt, Esq.
(by Mary Margaret Schneider, Esq.)
66 West Flagler Street, Miami, FL 33130,
for the Plaintiffs.
Shook, Hardy & Bacon LLP (by Billy R. Randles,
Esq. and Robert E. Northrip, Esq.)
One Kansas City Place, 1200 Main Street,
Kansas City, MO 64105-2118,
for the Defendants Philip Morris
Incorporated, Philip Morris
Products, Inc., and Lorillard.
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PRESENT, Continued:
Jones, Day, Reavis & Pogue
(by David B. Alden, Esq.)
North Point, 901 Lakeside Avenue,
Cleveland, OH 44114,
for the Defendant R.J. Reynolds
Tobacco Company.
Debevoise & Plimpton (by Steven Klugman, Esq.
and Peter C. Johnson, Esq.)
875 Third Avenue, New York, NY 10022,
for The Council of Tobacco
Research-U.S.A., Inc.
ALSO PRESENT: Theresa Becker
Vicki B. Thompson
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I N D E X
WITNESS: DIRECT CROSS REDIRECT RECROSS
Freddy Homburger, M.D.
(By Mr. Randles) 5
(By Mr. Klugman) 122,143
(By Mr. Alden) 141
t t *
E X H I B I T E
EX. N0. PAGE
1October 1, 1968, letter to
Robert C. Hockett from Freddy
Homburger, M.D., Nos.
TEH13393-95 81
2 Page 560 from the March 10, 1973,
The Lancet, including letter from
Freddy Homburger entitled "Sugar
in Tobacco," No. TEH14906 90
3 Technology and Applied
Pharmacology article entitled
"Abstracts of Papers for the
Twelfth Annual Meeting of the
Society of Toxicology" 90
4 One page from March 1974
Proceedings of the Federation
of American Society for
Experimental Biology" 91
5 Multi-page document entitled
"Strain Differences in the
Response of Inbred Syrian
Hamsters to Cigarette Smoke
Inhalation" 92
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EXHIBITS, Continued
EX. NO. PAGE
6 Multi-page document entitled
"Experimental Lung Cancer,
Carcinogenesis and Bioassays,"
June 23-26, 1974 93
7 Letter to Dr. William Gardner
from Freddy Homburger with
attachment "Chronology of
Events," Nos. 005639-5646 97
8 Letter dated June 19, 1970
to W.T. Hoyt from Freddy
Homburger with attachments,
Nos. TEH14835-42 99
9 April 22, 1974, confidential
memorandum to Henry-Tom
from L.S.Z., Nos. 19604-05 111
10 Multi-page Bio-Research
Consultants, Final Report on
Contract C-191 dated September
1973 119
11 March 28, 1974, letter
to Robert C. Hockett from
Freddy Homburger with
attachment, Nos. TEH14986-15031 119
12 May 27, 1997, letter, by hand,
to Mary Margaret Schneider from
Billy R. Randles 145
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P R 0 C E E D I N G S
FREDDY HOMBURGER M.D.
a witness called for examination by counsel for the
Defendants Philip Morris Incorporated, Philip Morris
Products, Inc., and Lorillard, being first duly
sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. RANDLES:
Q. Dr. Homburger, we met briefly before. My
name is Billy Randles. I'm a lawyer with the law
firm of Shook, Hardy & Bacon. I represent Philip
Morris and Lorillard Tobacco Companies in this
case.
Would you state your full name for the
record, please.
A. My name is Freddy, F-r-e-d-d-y, Homburger,
H-o-m-b-u-r-g-e-r.
Q. What is your age, Dr. Homburger?
A. 81 going on 82. I'm born February 8,
1916. Seems impossible.
Q. We should all look so good at 81.
How is your health, Doctor?
A. Well, you want a list of my ills? I have
Parkinson's disease. I have gout. I have
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hypertension. I have two artificial knees. I have
two artificial eye lenses. And apart from that --
my prostate we won't discuss. Apart from that I'm
all right.
Q. Are you on any medication today that would
impair your ability to answer my questions?
A. No, not at all. I am taking Synemet, which
is a drug that controls the Parkinson's, and I take
some vitamin C, some aspirin, but no narcotics or
pain-relieving medication.
Q. I mean this very respectfully. How would
you describe your memory?
A. My memory is not as good as it was 20 years
ago, but it's still pretty good.
Q. Good. If I ask you any questions today
that you don't understand, I'd like for you to stop
me and I will rephrase them.
A. I will do that.
Q. And if I ask you any questions that you
don't have a memory of, please just tell me that.
All right?
A. I will.
Q. As we go on today, any time you want to
take a break, you let me know and that will be
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fine. If you want anything to drink, let me know.
And if you need to get up and stretch or anything
like that, that would be fine. You don't need to
ask, just do that.
A. I understand.
Q. All right. I've noticed you're already
very good at this, but I'll just mention this. In
deposition this lady is taking down everything we
say, so we need to be careful not to talk over each
other, and I notice you're already very good at
that. If I do that to you, I apologize and I will
stop.
Have you ever had your deposition taken
before?
A. Yes.
Q. Do you recall how many times?
A. No. Only once, and I testified once in
court.
Q. Do you remember the case name that you
testified in, in the deposition first?
A. The first deposition was taken in the case
of my wife and myself against Merrill Lynch many
years ago.
Q. And that was regarding investments or
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financial affairs?
A. That was regarding their negligence with
one of our investments. And the second time, the
only time I testified in court, was the Cipollone
case in New Jersey, and I don't remember the exact
date, but I suppose everybody does.
Q. What year was the Merrill Lynch case?
A. Oh, it was long ago. We were then living
in New York, and it was 1944 or '45.
Q. When were you first contacted regarding the
Broin case?
A. Excuse me. Regarding?
Q. The Broin case, the case we're here for
today, the flight attendant class action.
A. That was only maybe a couple of weeks ago I
got a telephone call.
Q. Do you recall who called you?
A. I don't recall the name, but it was a woman
lawyer in Mr. Rosenblatt's firm, not Mrs. Schneider.
Q. What did the lady tell you about the case
or why she was calling?
A. At that point she didn't tell me anything
practically about the case. She just asked me
whether I could possibly be a witness in a case that
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involved some secondhand smoke. And then I got more
calls later on from the same person, and it was
explained to me more or less what the case was
about.
Finally, it was on Friday last week, or was
it -- it was maybe yesterday that Mr. Rosenblatt
himself called and explained to me what this case
was all about.
Q. What did he tell you the case was about?
A. He told me that it was a case of airplane
attendants on the liability of the cigarette
companies in regard to secondhand smoke effects'. I
told him that my expertise did not extend to
secondhand smoke, and so he explained to me that it
was a question of testifying as to the treatment I
had received from the Council for Tobacco Research'
when it came to publishing facts which the cigarette
companies did not like. That was about the gist of
our conversation.
Q. Were those his words or your words?
A. These are basically my words. I really
wouldn't recall his specific words; it was a long
conversation and largely one-sided. I listened and
he talked.
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Q. About how long was your conversation?
A. Oh, a good half hour.
Q. What else did he tell you about the case?
A. Really not much. For example, he didn't
mention specifically the numbers of the persons
involved or the time or any detail.
Q. When did you -- what did you initially say
when they asked you to testify?
A. I told him that I had previously testified
in the Cipollone case, and that I was ready and
willing to testify again any time about the matter
of limitations imposed by us -- attempted to be
imposed on us by the tobacco companies on
that we had found in our research.
Q. When did you agree to testify?
A. The first time they called me.
matters
Q. And that was a couple of weeks ago, you
said?
A. A couple of weeks ago.
Q. Okay. Have you had any discussions about
whether or not you will be paid for your time that
you spend testifying?
A. No, not at all. It was understood I
wouldn't be paid.
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Q. Will you come to Miami to testify at the
trial if they ask you?
A. No. Because of my various disabilities
that I enumerated to you, I cannot travel.
Q. Since -- excuse me, let me back up. Have
you reviewed any documents in preparation for your
testimony here today?
A. I have looked at my documentation of my own
work in tobacco research and the correspondence that
went on between the Council for Tobacco Research,
Mr. Hoyt, and myself in the '70s. I looked at those
data again. And I leafed through publications, of
which there are many, just to refresh my memory.
Q. Let me see if I understand what you've just
told me. You looked at your previous publications?
A. Yes.
Q. You looked at your correspondence to and
from the Council for Tobacco Research in the '70s?
A. Yes.
Q. Are there any other documents you looked
at?
A. I have a listing of events in time that I
put down when I was to testify in the Cipollone
case, because it becomes complicated, and so I
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looked at that to refresh my memory. And I think
that's about all there is to it. There are
documents on the smoking machines we have used, on
the experiments specifically, but I didn't go into
those.
Q. The list you referred to, is that a
handwritten list that you made yourself?
A. It's partly handwritten and partly typed
that I made out of my correspondence and my
notebooks.
Q. Did you put that together by reviewing the
old correspondence and setting out the events?
A. Yes.
Q. I see.
A. But as I mentioned, I didn't do that now.
I made the list in the '70s -- no, I made the list
prior to my testifying in the Cipollone case.
Q. Did you show any of these documents or this
list to anyone from Mr. Rosenblatt's office?
A. I showed some of these documents to her, to
Mrs.
MS. SCHNEIDER: --Schneider.
A. -- to Mrs. Schneider.
Q. Would you have any objection if we asked to
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look at those?
MS. SCHNEIDER: We didn't bring any
documents with us.
MR. RANDLES: Actually, this is another
question, though.
Q. Would you have any objection if I were to
ask if you could bring them to the deposition
tomorrow?
A. No.
Q. You would have no objection to me --
A. I would have no objection.
Q. Thank you. I would like to ask that you do
that, if you don't mind. I can talk with Ms.
Schneider off the record later about that.
After your Cipollone testimony, did Mr.
Edell, E-d-e-1-1, pay you for your time?
A. I got reimbursed for my travel expenses.
Q. Since the Cipollone case and before Mr.
Rosenblatt's office contacted you recently, has
anybody contacted you after that trial to talk to
you about your testimony?
A. No.
Q. Did anyone contact you to talk to you about
your experiences with the Council for Tobacco
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Research?
A. No.
Q. Did any -- I want to make sure I'm being
clear. No lawyers contacted you from any law firm
to talk about those things?
A. No, not after my testimony.
Q. Has any other law firm contacted you
recently, other than Mr. Rosenblatt's law firm?
A. There was a lawyer in Texas who was
involved in the case of the Attorney Generals
who
called me maybe a month ago, and he asked me whether
I would be willing to be an expert witness, and he
said he would write me a letter. And we talked
about that, and I really don't remember the name,
because he never sent me a letter. So that is the
only event of this nature that happened.
But there was another thing, and that is
the letter in Science by the director of research of
the Council for Tobacco Research which is very
recent and which stated that they never interfered
with the freedom to publish of any of their research
supported by the Council for Tobacco Research. And
I responded to that, and Science published my letter
wherein I stated that it was not true that they had
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not interfered with publication of data but -- of
research that they had supported. And that was
published in the journal Science in September.
Those are the only things.
Q. When the lawyer in Texas asked you if you'd
be willing to be an expert witness, what did you
tell him?
MS. SCHNEIDER: Objection to the form. You
may answer the question.
You can qo ahead.
A. I told him that I would consider being an
expert witness if the questions they had were within
my experience. I told him I would charge $1500 a
day. And that was about all I had to say.
Q. Before that lawyer talked to you, since
Cipollone had any other lawyer talked to you?
A. No.
Q. Have any non-lawyers talked to you about
your work with CTR; for example, reporters?
A. I really don't remember any, no.
Q. If you --
A. Wait a minute. There was the editor of the
letters in Science who talked to me after I had
submitted my letter and asked me where she could
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find documentation. And I referred her to the
records of the Cipollone case; that may be the kind
of thing that you have in mind.
Q. Yes, it is. As we go along today, if you
think of someone else, would you just stop me and
let me know?
A. I will tell you.
Q. Thank you.
Have you followed the press coverage of
your -- of you and your statements about CTR since
the Cipollone case?
A. Not really.
Q. No? Have you noticed -- have you read any
newspaper articles that talked about you since
Cipollone?
A. Well, there was a book From Ashes to Ashes
which quoted me very extensively, and I have that in
my office. But otherwise I don't really remember
anything I would have read specifically. I always
look in the papers on news on tobacco, and I'm
interested in that, so I would have seen it, but I
don't recall any.
Q. Did you feel that the book Ashes to Ashes
accurately reflected your experience?
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A. Yes.
Q. Have you reviewed the transcript of your
testimony in the Cipollone case?
A. I have looked at that, yes.
Q. Do you feel the transcript accurately
reflects what you said?
A. With the exception of some misspellings, it
does.
Q. That's always a problem. Not today, of
course.
Dr. Homburger, when I ask you about CTR,
I'm just going to ask that even when I'm talking
about the early years when it was actually called
TIRC. If I'm ever unclear to you, please stop me,
but I just do that for convenience.
You received funding from CTR back when it
was TIRC very early, didn't you?
A. We were some of the first grantees, and
that was because of my friendship with Dr. Little,
who was the first director of research of the
Council for Tobacco Research. And we received the
first support in the middle '60s, when I still was
working at Tufts, and we did studies on skin
painting, which was in those days the standard to
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assay carcinogenicity of cigarette tars, and that
amounted by the '70s to close to a million dollars,
probably around $800,000.
Q. When did you first meet Dr. Little?
A. Well, in probably -- probably in 1948. I
know that, because it was the year after the big
fire in Bar Harbor, and I was in the process of
establishing a Council Research Unit at Tufts
University School of Medicine, and Dr. Little was
around as the scientist in genetics of the mouse.
And so I contacted him to become an advisot of a
small group of four or five scientists that should
advise the Tufts Council Research Unit.
And he came and he liked his trips to
Boston, he told me, and we became friends. And he
asked me the year after the fire, 1948, to come to
Maine and give a talk on our work. And my wife and
I were both overwhelmed by the beauty of Maine, and
we bought some land there through the help of Dr.
Little. We built a house there in 1952, and we have
been going to Maine ever since every year, with the
exception of two or three years. Now I cannot
travel we don't go.
But Dr. Little and I became really good
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friends, and when he retired and was offered the job
as director of the Council for Tobacco Research, I
told him he shouldn't do that unless they gave him
protection for his salary to the tune of at least a
million dollars. And he said, "Oh, I can't do that
and I don't really need to ask that. They would
never do that. I need this job, because I would
like to go to New York as often as I can, and I need
the money. And above all, I can do whatever I want
to do because," and I quote him literally, "My
sarcophagus is built." And that was his attitude,
and that is what got him into deep trouble.
But his basic interest at the time when he
started this job at CTR was to develop an animal
system that could test th e effect of inhalation of
smoke, as th e smoker does, in an animal, and that is
what we were basically supported for. And we
succeeded in showing over the years that mice and
rats were no t suitable, because they were extremely
sensitive to the toxicity of nicotine and other
things in cigarette smoke and died before o ne could
give them sufficient exposure to even hope for
development of a cancer.
And then sheer luck brought a woman from
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Boston University to us who had a colony of inbred
hamsters, Rae Whitney, and she allowed us to do
whatever we wanted to using these inbred hamsters.
And we found very soon that the Syrian hamster is
not susceptible to toxicity of nicotine and can
tolerate much larger amounts of smoke; and we
developed a method where, when we used the
appropriate strain of hamsters, we got an incidence
of nearly 50 percent of cancer of the upper
respiratory tract. And that is when the trouble
started with the CTR.
Q. Let me ask you a few more questions about
Dr. Little. What was his reputation in the
scientific community?
A. He had an outstanding reputation as a
scientist. And he had a somewhat difficult
reputation as a manager and as a person, because in
most jobs, like the presidency of the University of
Maine and the presidency of Michigan University, he
lasted only two or three years before getting in
trouble with his boards about such matters as
contraception, population control and so forth. And
he was a very religious man with strong convictions
and very little sense of difficulties in personal
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relationships. He got himself into a lot of
trouble, and for a time I wondered whether it was a
good thing to become a friend of Dr. Little. But he
was a great man.
Q. You respected him?
A. I respected him, until I found out that he
was really doing anything that the Council wanted
him to do. This was three or four years before he
died.
Q. Do you remember when he died?
A. He was 83 years old when he died, and he
was born in 1899. So I don't exactly remember. 83
or 82.
Q. And did you work with him whe.n he was at
CTR?
A. No. I worked with him at his laboratory in
Maine. I went there each year until he retired.
When he was at CTR, I can't say I worked with him.
He knew what we were doing, and he gave us advice
and the advice of our committee, but he didn't
supervise any of our research directly.
And I must emphasize that the support that
we got then from CTR was conventional grant support,
which means we could do with the data whatever we
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thought should be done.
Q. When you were receiving grants from CTR,
and you received grants from CTR from some time very
early, would it be correct to say you may have
received grants as early as the mid-1950s?
A. No, it was the early '60s.
Q. From then until you started doing contract
work for CTR in the early '70s --
A. In 1970 they changed to contract.
Q. During the period of time where you were a
grantee, you were always free to conduct your
research the way you thought appropriate, weren't
you?
A. Oh, yes, absolutely.
Q. And you were always free to report the
results of your research as you thought appropriate?
A. Oh, yes, no question.
Q. I want to ask you about a few other people
and see if you remember them or if you ever knew
them.
I'm going to hand you a list, and I won't
necessarily ask you about everyone on the list, but
it may be easier. Actually, I was going to ask them
in alphabetical order.
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We'll try without the list first, because I
have a different order. I apologize.
Do you -- did you know Howard B. Andervont,
A-n-d-e-r-v-o-n-t?
A. Yes.
Q. Who was he, do you recall?
A. Hewas a researcher at the National
Institutes of Health, and he also was an associate
scientist at the Jackson Lab with Dr. Little. He
was a mostly on mice at the Council of Research, and
a very nice guy.
Q. What was his reputation in the scientific
community?
A. Outstanding.
Q. Did you know a Richard M. Bing, B-i-n-g?
A. It sounds familiar, but I don't recall that
I knew this man very well.
Q. He was at Wayne State University College of
Medicine?
A. I don't think I knew him.
Q. Did you know a McKeen Cattell,
C-a-t-t-e-l-l, who was Professor of Pharmacology at
Cornell University Medical College in New York?
A. Cattell?
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Q.
A. Yes.
Yes, I
knew him, but only slightly.
Q.
A Do you
N know a Julius Comroe --
.
Q. o.
--C-o-m-r-o-e? He was a professor
at
Pennsylvania School of Medicine.
A.
Q. No.
Did you know William Gardner?
A. Oh, yes. Bill Gardner was the Prof essor of
Anatomy at Yale. He examined me when I took the
Board of Nati onal Medical Examiners. He was very
brillian t and very informed and very respected
anatomis t. But I must say he was on the Council
later, a nd he didn't know anything about respiratory
physiolo gy or experimentation, toxicology. But his
reputati on as an anatomist was first class.
Q. And you respected him in this field?
A Oh e
. , y
s.
Q. What about Robert Huebner, did you know
him?
A.
For
Robert Huebner I have nothing but
contempt . We had a program with his outfit at the
National Institutes of Health which involved to send
him mice with certain tumors without telling them
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which were the treated ones and which were the
untreated ones. We got a telephone call from a
senior technician that she couldn't do these
experiments without knowing what was what.
And we called Dr. Huebner and told him that
this was not what we had agreed on. And he was not
upset at all and said, "Well, if we can't do it, we
can't do it." And that put an end to my respect for
Huebner.
Q. And that was your only dealing with Dr.
Huebner?
A. My only dealing.
Q. Did you know Leon Jacobson?
A. Yes, Leon was at Chicago, and he was a
clinician and researcher, Council researcher of high
reputation. And I didn't know him very well, but I
respected his reputation.
Q. And he had a good reputation in the
scientific community?
A. Yes, yes.
Q. Did you know Paul Kotin?
A. Oh, yes. Paul Kotin was one of the leading
Council researchers of his day, and I respected him
very highly, and he had a very good reputation.
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What happened to him is not quite clear, but he got
involved in a marginal way with the whole problem of
asbestosis-induced problems. And I don't know
whether he lost some of his good reputation or not
-- I didn't follow this -- and I don't know what
he's up to now, if he's still alive.
Q. But as far as your opinion of him,
always very high when you worked with him?
A. Very high at the time.
Q. What about Clayton Loosli?
A. Loosli?
it was
Q. L-o-o-s-1-i. I may be saying that wrong.
He was a professor of medicine at the University of
Southern California.
A. I don't think I knew him.
Q. What about Kenneth Lynch?
A. Well, Ken Lynch was a pathologist, I think,
in North Carolina, and I knew him only through his
publications. And he was one of the very early
pathologists who put together the idea that smoking
might have something to do with cancer of the lung.
I respected his reputation, and I worked in the same
field while I was at Yale, but I never met him.
Q. What about Stanley Reimann from
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Pennsylvania?
A. Stanley --
Q.
A. Reimann.
Reimann,
oh
, yes.
He
was
mostly
--
he
was
a Council researcher and mostly an administrator.
He founded the Institute in Philadelphia. I met him
a few times. He had a good reputation, not so much
as an inspiring scientist, but as an organizer of
new approaches, and I respected him.
Q. What about William Rienhoff from Maryland,
a profess or of surgery at Johns Hopkins?
A I don't know
. .
Q. What about Sheldon Sommers?
A. Sheldon Sommers, he's a pathologist who was
at Boston University and then became a pathologist
of the Council for Tobacco Research. Sheldon I
respected w hen he was at B.U., and I knew him as a
teacher a nd a researcher in some ways; bu t when he
began wor ki ng wi th the Council , he became totally
subjectiv e, an d it wa s he who wanted us t o change
the terminology of the lesions we found i n hamsters
and I had very littl e respect for him.
Q. What about Edwin Wilson from Harvard?
A. Oh, he was an old statistician, and he was
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highly regarded in his profession. And he had an
obsessive feeling that statistics could be
interpreted in a favorable way for the tobacco
industry. And so I respected him because he was
imposing, but I thought he was very wrong, and what
sh
uld I
?
o say
Q. Butalthough you disagreed with him, you
had a lot of respect for him as a scientist?
A. Oh, yes, his background was superb.
Q. Obviously we talked a lot about people who
were involved with the Council or on the SCientific
Advisory Board of the Council when you worked with
them. Would it be fair to say that, among the
people yo u knew that were on the Scientific Advisory
Board of CTR, you respected them as scientists?
MS. SCHNEIDER: Objection to the form.
A. I wouldn't generalize. Some of them I did
and some of them I didn't.
Q. What type of work did you do with your CTR
r
t f di ?
g
an
un ng
A. Well , we started out doing skin painting,
and in the '60s we published a paper with our
results showing that the tars from cigarettes --that
was stand ard cigarettes -- and pipe tobacco and
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cigars were equally carcinogenic when applied to the
skin of mice. And that took a long time and took a
lot of our time and effort and money.
And at the same time we tried to evaluate
the susceptibility of various species of animals to
smoke; and we developed with the participation
of
the inventor -- what was his name -- Richard Walton
a smoking machine which could puff smoke very much
as a smoker would do, and where you could insert
animals into tubes and they would inhale this
cigarette smoke. And we found very soon that mice
and rats were very susceptible to the toxic effects
and died, and hamsters, on the
contrary, liked to
smoke. They were sort of tranquilized and were
sitting there inhaling the smoke.
And so we decided to go into a study of.the
hamster for inhalation toxicity of cigarette smoke,
and that's how we started out. And because Dr:
Little had these various inbred strains of hamsters,
we were able to show that some were very susceptible
to the effects of smoke in terms of how it changed
the anatomy of the epithelium in the respiratory
tract, and some were much less susceptible.
So finally that lead us in the late '60s
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and early 170s to set up a big experiment where we
exposed dozens of hamsters -- maybe there were
hundreds really, I would have to check the exact
figure -- and exposed them five days a week twice a
day for a number of inhalations for many months.
And at the end of 18 months, between 12 and 18
months, half of the hamsters of the susceptible
strain -- to be exact it was 42 percent -- had
cancer or precancerous lesions in their upper
respiratory tract and some changes, not cancerous
changes, in their lungs that showed that the tobacco
smoke also had reached the lungs. And in the
non-susceptible strain, there was very little change
in the respiratory epithelium, and cancer was only
found in 4 percent of these animals; in other words,
ten times more rarely.
Now, that irritated, obviously, the Council
for Tobacco Research, and this is when they switched
to a system of grant -- not grant support but the
contract. And when you receive a letter explaining
the meaning of the contract, it was an absolute
secure system for them to control whatever you could
publish. But my interpretation was that applied
only to the end of the study and not to the body of
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the study --
MR. KLUGMAN: I object to that testimony
and move to strike. It's not responsive.
Q. What I want to focus now on is your grant
research first, and then I want to go to the
contract. The grant research you did for CTR, you
thought that was all scientifically significant
work, didn't you?
A. Yes.
Q. And you believed it was relevant to smoking
and health, didn't you?
A. It was the only thing that existed in
animal tests that had any significance on what might
be the case in humans.
Q. Was it your practice throughout your
scientific career to acknowledge funding support in
your articles?
A. Oh, yes.
Q. To the best of your knowledge, were your
funding acknowledgements in your articles always
correct?
A. Oh, yes.
Q. And you were free to publish your CTR
grant-funded research even when the results might be
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considered adverse to the tobacco industry, right?
A. Absolutely.
Q. And all grantees, to your knowledge, were
free to publish their research?
A. As far as I knew then, yes.
Q. I want to talk about your skin painting
work for a moment. Essentially you concluded that
skin painting tests were not very helpful in
evaluating the potential carcinogenicity of smoking
to humans?
A. Well, there is a principle here. If in
toxicology you want to develop a test that is
meaningful, it should involve the same system as is
affected in humans. And this just didn't exist.
And the skin painting, which was used by Wynder in
1953 to show that there is a relationship between
cancer induction in the epidermis and smoke, tars,
that was the only method that was available. Much
later Auerbach found that he could induce cancer or
he felt he was inducing cancer in the respiratory
tract of dogs; but there the limitation was that the
spontaneous incidence of cancer in this nature in
the dog was quite high, and dogs are difficult to
study. It's not as easy as a small animal like a
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rat, a mouse or a hamster.
So Dr. Little was really the inspiration
for us to go after other animals, and accidentally
Dr. Whitney came with her inbred hamsters.
Q. Now, on your skin painting work, you
actually concluded that tar was really the wrong
substance applied to the wrong animal, didn't you?
A. To the wrong place.
Q. Yes. And the conditions of the skin
painting experiments were very artificial when
compared to human smoking, weren't they?
A. Yes.
Q. You actually reached a number of
significant conclusions about skin painting, didn't
you? For example, you concluded at times the
condensate could actually inhibit tumor activity in
certain animals, didn't you?
A. I don't remember that.
Q. You don't remember that. I may pull that
out later. I think I read that in one of your
articles.
You also conclude that an artifact in the
collection or storage process that was not in the
original smoke was responsible for tumors in some
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experiments, didn't you?
A. I think we mentioned that.
Q. What do you mean when you say an artifact
in the collection or storage process? What does
that mean?
A. I don't remember what happened, but it must
be a reference to a specific change, maybe failure
of a refrigerator or that kind of thing, or failure
of the machine to smoke the cigarette at the pace
that it should be smoked, that kind of thing.
Q. Now, when you take smoke and change it into
tar and store it, that's very different from the
smoke, fresh whole smoke that humans inhale, isn't
it?
A. Oh, absolutely.
Q. And to take that further, to make sure I'm
clear, fresh, whole smoke is different than
sidestream smoke of a cigarette too, isn't it?
A.
ETS?
MS. SCHNEIDER: Objection to the form.
I don't know about that.
And do you know whether it differs from
MS. SCHNEIDER: Objection to the form.
A. From what?
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Q. Environmental tobacco smoke.
A. I don't know anything about that.
Q. Is it correct to state that the dose to
which an animal is exposed is a
very important
factor in determining whether smoke can cause
tumors?
A. Yes.
Q. Dose is really a critical factor, isn't it?
A. I would think so.
Q. As a matter of fact, didn't you claim that
one reason your hamsters didn't get lung cancer was
because a large enough dose didn't get into their
lungs; it stopped at the larynx?
A. Well, that is a logical conclusion.
Q. To get cellular changes, you really have to
have a significant exposure dose, don't you?
MS. SCHNEIDER: Objection to the form.
A. Right.
Q. Based on your work, did you determine how
many cigarettes per day an animal would have to be
exposed to to get cellular changes?
A. I don't think we did that kind of
quantitation.
Q. Wouldn't three or four cigarettes a day be
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too low to get changes?
A. I don't think -- we didn't determine a
minimal dose. We get the maximal exposure.
Q. So when you were exposing your hamsters,
you basically gave them all the smoke that they
could tolerate without dying, didn't you?
A. Yes, without showing any weight loss or any
other changes. Some of these hamsters have a
spontaneous heart disease, and that could increase
theoretically if you expose them to smoke. And we
tried to keep that from happening.
Q. Just so I'm clear, the doses of smoke your
hamsters were exposed to are much higher than a
human smoker would receive; isn't that. correct?
MS. SCHNEIDER: Objection to the form.
A. I don't think you can really say. As I
just pointed out, we haven't got the exact dose;
can only say the number of cigarettes per day per
hamster.
we
Q. You don't believe that epidemiology alone
without a confirmation in an animal model can
establish a causal relationship between any
substance --
A. Say that again.
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Q. You don't believe that epidemiology alone
without confirmation in an
animal model can
establish a causal relationship between any
substance and disease, do you?
MS. SCHNEIDER: Objection to the form.
A. Oh, I don't think I would generalize that,
no. I think epidemiology and public health analysis
can establish such a relationship without animal
experimentation.
Q. You have often published articles
cautioning about what the limits of what
epidemiology can prove, haven't you?
A. I'm not aware of that. Do you have them
here?
Q. Yes, I think so. While we're looking for
that, let me ask you another question.
When epidemiological studies suggest a
relationship between some substance and disease, the
responsible course of action is to fund animal
experimentation to see if you can confirm that;
isn't that right?
A. Well, let me tell you that we didn't have
that motivation for doing our research. We wanted
to have a methodology which could enable the
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cigarette industry to test the carcinogenicity of
its products so that they could modify it and make
it less carcinogenic.
Q. I want to show you an article, which I will
hand you in a moment, entitled "In Vivo
Carcinogenicity Testing," from Pathologv from 1979.
And while you're free to read any of it, I'd like to
call your attention to your discussion in the second
column about epidemiology.
A. (Witness reviews document) Well, what was
your question?
Q. Let me ask a different question, to make it
clear.
When I read this discussion, I understood
you to be talking about the need for animal research
to fill in the gaps that epidemiology and
statistical studies leave in evaluating an animal
model -- in evaluating, I'm sorry, the relationship
between a substance and disease. So my question for
you is, do you believe that epidemiology alone
without animal experimentation can suffice to
establish causation of a substance and disease?
MS. SCHNEIDER: Objection to the form.
A. That isn't what this whole thing is about.
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I say here that a definite answer to this problem,
the problem of interpreting what we find in animals
and transfer to humans, the only comment we
understand about is the pathogene sis of certain
human c
n
rs
.
a
ce
And how
can
we
develop an understanding of
the pathogenesis of these human cancers?
A. Well, that's wide open. We say, "Only
then, will it be possible to devise tests in certain
animals which can predict the carcinogenic activity
of test substances related to the cancer-inducing
mechanism known to function in humans. None of us
is likely to live to see this day of enlightenment
unless the government initiates h eavier support of
non-mission-oriented research."
In other words, this is a wide-open field
where we don't know enough yet to really use what we
find in animal experimentation to explain what's
going on in humans, because we don't know what
causes cancer in humans in the first place.
Is that still the state of knowledge we're
in today, as it was in 1979?
A. Oh, I would say so. The approaches are
getting a little fancier. Now we have genes and
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modified genes and all sorts of things which I don't
understand any more, and I don't think the
geneticists themselves are quite sure when they
understand it. So it's not here yet. But don't
twist my meaning.
Q. I'm not trying to. That's why I'm giving
you plenty of time to explain.
But if I understand what you just said, is
it fair to say that right now we don't understand
what causes a cell to become cancerous, what the
mechanism is whereby it becomes --
MS. SCHNEIDER: Objection to the form.
A. That's quite true.
Grants and contracts are the two most
common methods of funds for scientific research,
aren't they?
A. I would think so.
Q. What are the key differences in general
between grant research and contract research?
A. A grant is usually given to a scientist in
a nonprofit institution to encourage him to do
whatever he wants to do. And a contract is given
usually or is entered into by a business which has
as its function the acquisition of knowledge that
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clients desire. That's the briefest possible
differential diagnosis of contract and grant.
Q. They differ -- for example, in a contract
you might often find a much more narrow focus on a
specific objective than you would with a grant,
right?
A.
Q. Right.
There's more control
by
the funding
organization over a contract than a grant, isn't
there?
A.
Q. Yes.
The freedom to
publish differs between
grants and contracts?
A. Oh, absolutely. And the freedom to publish
is the client's -- the privilege of publication is
the client's, not the --
Q. --the recipient?
A. --the party to the contract.
Q. I understand. Not the recipient.
A. I'm getting tired.
Q.
A.
Q. Would
No.
And in you
a like
grant a break?
versus a
contract,
there's
a
differe nce in w ho owns the results, isn't there?
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A. Oh, absolutely.
The right to any patentable information in
a contract, usually the organization funding it owns
it?
A. It's owned by the people who make the
contract with the scientist.
Q. Right. Now, you've had both types of
research funding over your career, haven't you?
A. There were two organizations -- we had the
nonprofit institute, Bio-Research Institute, and the
for-profit organization, Bio-Research Consultants --
and we usually only had contracts in one and grants
in the other. With the Council for Tobacco Research
it was somewhat different,
because it started out as
a grant and changed into a contract.
Q. Now, you've understood the differences
between grant and contract funding for as long as
you've been involved in science, haven't you?
A. Oh, I think so.
Q. Now, contract research is common in the
scientific community, isn't it?
A. It's getting more and more common, because
the grant money is getting scarcer.
Q.
As a matter of fact, the government funds
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contract research as well, doesn't it?
A. They have contracts and they have grants.
Q. After your CTR contract expired in 1974,
did any other agency fund inhalation work at your
lab using the hamsters?
A. Yes. We were funded by a consortium of
British ciga-rette manufacturers and the Celanese
company. The Celanese people had Cytrel, which was
a tobacco substitute, in effect cellulose; and we
tested cigarettes for them and for this consortium
in the same way we had done with the standard
cigarettes of the Council for Tobacco Research. And
we found that the Celanese substitute would use a
cigarette that was much less carcinogenic, in
hamsters was not carcinogenic at all.
But then they were test marketed in Germany
and in England, and apparently the smokers did not
like these cigarettes. That is what was officially
said. It could be that the companies didn't like to
get involved; I don't know what happened. But the
cigarettes never came to market.
Q. How many years did you do this contract
work?
A. Oh, we did it for nearly ten years.
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Q. Do you remember -- there was a contract,
wasn't there?
A. Yes.
Q. Do you remember how much they paid you over
that period of time?
A. I could look it up, but it was about the
same as the Council for Tobacco Research had paid
us.
Q. So you essentially replaced your CTR
funding with th.e funding from this British
consortium and Celanese?
A. Yes.
Q. Did you publish the results of this
research?
A. Yes.
Q. Did you have to obtain the permission of
the folks who had the contract?
A. We did obtain their permission.
Q. And how many articles did you publish
regarding this research?
A. Of this particular research, I would have
to look that up.
Q. Other than this research you just described
to me, did you conduct any other inhalation work at
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your lab following 1974 with your hamsters?
A. I believe Dr. Bernfeld conducted some
studies for the Department of Agriculture on
cigarettes made with different tobaccos.
Q. And do you remember how long that research
was?
A. No, I don't remember that exactly, but it
was at least two or three years.
Q. And was that a contract?
A.- That was a contract.
Q. Did he publish the results of that work?
A. Yes, that was a paper and was published.
Q. And did he obtain the Department of
Agriculture's permission to publish?
A. Yes.
Q. Any other inhalation work after that?
A. No, I don't think so. In 1984 our
laboratory facilities were taken by the Commonwealth
on the street along the Charles River; and I was
then 70 years old, and I thought it was time to
retire. So we didn't do anything any more, except
that the hamster breeding is continued by Dr. Van
Dongen still to this day.
Q Dr. ?
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A. Van Dongen. He's a Dutchman.
Q. And where is he doing that breeding work?
A. He's doing it in Massachusetts somewhere.
Biobreeders is his firm, and you can look it up in
the telephone directory, but it's in a small town
south of here.
Q. And he still sells your breed of hamsters?
A. He sells some of our breeds of hamsters.
Q. Does he sell very many, do you know?
A. Oh, he sells enough to stay in business;
but with the general atmosphere about animal
research now, there is less and less usage, as you
may know, of animals for laboratory studies. So
he's not doing a big business.
Q. You own the patent on that breed of
hamsters, don't you?
A. There is no patent.
Q. There is no patent?
A. No.
Q. Do you receive any money from his sales of
the hamsters?
A. I did until last year. There was a 10
percent royalty that he agreed to pay when we made
the arrangements for his going out and doing this.
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Q. And why did that stop last year?
A. Because we made it for ten years.
Q. Understood. Have any public health
agencies or private labs or universities used
hamsters for inhalation work?
your
A. As far as I know, no, but there is a lot of
correspondence that I had with politicians, with the
director of the National Cancer Institute and so
forth, trying to get them to use this system. And
the answers I got were always negative. I was even
told, why don't I write a better application instead
of writing for politicians.
And in some instances Dr. Gori, who was in
charge of a division of the Cancer Institute to
develop safer cigarettes, wrote
never hope of having our method
me that we could
used because of
certain Senators. So it never went anywhere.
Q. So you wrote -- you repeatedly attempted to
get the government to use your hamsters as an
inhalation model?
A. Yes.
Q. And they chose not to; is that right?
A. Right.
Q. And they used mice for their inhalation
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work, didn't they?
A. The Council for Tobacco Research spent, I
am told, about a million dollars on an experiment
that was done on mice inhalation, which we knew
couldn't work, and they knew couldn't work.
Q. Actually I was asking about the government,
Doctor.
A. The government, I don't know whether they
ever did anything.
Q. Okay. So you suggested the government use
your hamsters and do inhalation work, and they never
did use your hamsters, and you don't know whether
they did work with other animal models or not; is
that right?
A. I don't know that, but I know that the
Department of Agriculture did some work that we did
for them.
Q. You developed this breed of Syrian golden
hamster, didn't you?
A. Well, Dr. Whitney did. I perpetuated it.
Q. What makes that breed unique?
A. Well --
Q. Your breed of Syrian golden hamster, what
makes them unique for animal experimentation?
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A. Well, first of all, they have an extremely
low incidence of spontaneous cancers. As you know,
any animal will develop a certain percentage of
carcinomas that can go very high. The so-called
Bio 15.16 line has a very low incidence of
spontaneous cancers. And it has a great sensitivity
to induced cancers, not only in the respiratory
tract but anywhere.
Q. What do you mean when you say great
sensitivity to induced cancers?
A. I mean, if you take a known carcinogen,
methylcholanthrene, m-e-t-h-y-1-
c-h-o-l-a-n-t-h-r-e-n-e, such as methylcholanthrene
and you inject a certain dose anywhere into the
muscle or to the skin, you will get cancer in
animals with a certain dose. And in some strains it
takes a higher dose, and in some even a high dose
doesn't do anything.
So there is a varying sensitivity to
chemical carcinogens.
Q. As a matter of fact, I think I read in one
of your advertisements that you characterized these
hamsters as supersensitive to carcinogens?
A. Yes.
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Q. And they were, weren't they?
A. They were. That's why it worked.
Q. As a matter of fact, if you use breeds that
are not supersensitive to carcinogens in your
inhalation work, you might not get any result at
all; isn't that right?
A. We got only 4 percent as compared to 40
percent. Some people have been smart and chosen
negative-result-producing animals, as the Council
for Tobacco Research did with mice.
MR. RANDLES: I'm going to move to strike
that as nonresponsive.
Q. Your contract with CTR was important
because no one else had succeeded in developing a
valid animal model for smoke inhalation experiments,
right?
A. Right.
Q. And no other animal model besides your
Syrian golden hamsters has been proven to produce
significant numbers of cancers from inhaling fresh,
whole smoke, have they?
MS. SCHNEIDER: Objection to the form.
A. You have to repeat it.
Q. Let me repeat it. We got garbled a
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little. No other animal model has been proven to
produce significant numbers of cancers from inhaling
fresh, whole smoke, have they?
A. No, that's correct.
Q. Not beagles?
A. Well, questionably.
Q. Exactly. And questionably with mice,
correct?
A. With mice, not at all.
Q. Not at alJ.. Not even other hamsters have
succeeded in producing significant carcinomas?
A. Not other resistant lines.
Q. Exactly. Is it fair to say that, in your
opinion, no other species of animal is. useful for
measuring the carcinogenicity of cigarette smoke?
A. Well, I would say no other animal has been
shown to be useful. We don't know; maybe a cow
would do.
Q. But it's never been demonstrated?
A. Never been done.
Likewise, in vitro testing, like the Ames
test, is not useful for determining the
carcinogenicity of an inhaled substance, is it?
MS. SCHNEIDER: Objection to the form.
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A. I don't know whethe r thi s ha s b een tried;
in other word s, blowing smoke on it. I don't know
whether this has been tried.
Q. How many hamsters would you estimate you
sold over the years?
A. I have no idea.
Q. When you wrote arti cles.talk ing about
experime nts o n your hamsters, did you disclose in
your art icles that you also sold them?
A. Not as a standard way. We may have said
that in some papers. It's possible. We wrote some
papers on methodology, and t here we would have said
that we are a source for the se hamsters. But not
generally.
Q. You worked with a D r. Bernfeld in your lab
for years?
A. Yes, Peter Bernfeld .
Q. Can you tel l us a little bit about Dr.
B
f
ld
ern
e .
A. Dr. Bernfel d is a German who studied in
Geneva i n the early '30s and was then an outstanding
student of one of the great German chemists, Hans
Meier. And when I started the work at Tufts
Universi ty in Boston in 1948, Dr. Bernfeld applied
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for a job while I was away at a meeting in Geneva,
and I had interviewed somebody else for the
position. And when they called me in Geneva that
this Dr. Bernfeld was available, I thought he was
the one I had interviewed and I hired him by
i
t
k
m
s
a
e.
Q.
Did y
ou ever tell him that?
A. Oh, y es, he knows that. That was the best
thing I ever did in my life, by mistake.
So he became my associate at Tufts, and he
is an extremely intelligent individual who was
trained in chemistry and is a statistician and has
an analytical mind second to none, and without him I
wouldn't have done what I did in medical research.
Unfortunately, Dr. Bernfeld lost his vision, he can
just barely read on a machine, you know, that
enlarges letters. He also had a carcinoma of the
lower intestinal tract and is quite sick. And he's
about, oh, five years older than I am.
damned. So
He he takes
doesn't the
like po
me sition, all this stuff be
to go and testify, and
he thinks w e should just sh ut up.
Q. Ho w did you and Dr . Bernfeld -- I'm sorry,
let me back up. You and Dr . Bernfeld worked
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together
A for several decades, didn't you?
.
Q. Yes.
How
did yo
u divide roles in the
lab?
A. Well, I wa s the chairman and chief
executiv e off icer, and I always wanted to run
things; and Peter was the vice president and very
happy to do the work. And we never had any
disagree ments, or if we did, we simply locked
ourselve s in our offices and didn't talk for about
two or three days, and then we took up where we had
left off. We had an ideal relationship. We didn't
become close friends, I mean, we had very little
social contact, but the work was mutual. Well, I
said it all, I think.
Q. Did you both do sort of everything, or did
he have some duties that he did and you had some
duties that just you did?
A. Well, there were some duties that I did. I
was the guy that went out after the contracts and
the gran ts, although he wrote many of the
applicat
the expe ions for grants. And he supervised most of
rimental work. I had some of it that I was
especially interested in that I supervised. But we
had a ve ry mu tual, agreeable arrangement, and nobody
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ever regretted it.
Q. Who would, say, physically handle the
hamsters most often?
A. Well, we had employees at the time --when
we did this work we had maybe about 75 employees,
and some of them had been with us for five to ten
years and were very skilled in doing this. In fact,
I couldn't handle a hamster, probably never did.
But I showed people how to do it until they became
skilled, and we took turns supervising. Sometimes
we had weekend work, we had to work every day of the
week, and we were just the two of us doing the major
supervision.
Then we had about two or up to four senior
associates who were also Ph.D.s, and at one time we
were eleven Ph.D.s. And it was a lot of fun.
Q. Who designed most of the research projects?
A. Peter.
Q. Who did most of the writing?
A. Well, he usually did scientific writing,
and I edited. We did it together. But very
frankly, I didn't understand some of the statistics,
and he did all of that.
Q. So he would typically write the first
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draft, and then you would work on it together?
A. He was writing the reports. We always had
to make reports to grant authorities and to
contractors; and people did that, and I went over
it, and we discussed it, and we extracted from the
reports what we wanted to publish.
Q. What were Dr. Bernfeld's pathology
qualifications?
A. None. Dr. Russfield was our senior
pathologist. She's a woman, Agnes Russfield. And
often we used pathological consultants, Dr. Paul
Bern -- I don't know. He was at MIT. And a
professor of pathology at St. Louis reviewed the
slides. We had many pathologists review our slides.
Q. Was Dr. Russfield, was she a certified
diagnostic pathologist?
A. Yes.
Q. Let's talk about your slides from hamster
work with CTR. Dr. Sommers reviewed the slides of
the tissue from your hamsters, didn't he?
A. Yes.
Q. And he didn't believe they showed cancer,
right?
A. He wanted the pseudoepitheliomatous
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hyperplasia, which is a meaningless concept, instead
of cancer. And I can bring you tomorrow a letter
from the reviewing pathologist in St. Louis whose
name escapes me now. We sent these slides to at
least four or five pathologists to review before we
told them what we did.
Q. Which pathologists did you send them to?
A. Well, I told you the professor in St. Louis
whose name escapes me, and it's very strange
that it
should, because I looked at it this morning, but
recent memory is sometimes affected by Parkinsonism.
Did you also show them to the MIT
professor?
A. Yes.
His first name was Paul and you didn't
remember his last name?
A. Paul Newberne.
Q. Newberne?
A. Paul Newberne. He's now at Boston City
Hospital where I am still a senior research
scientist. And we meet every Wednesday morning.
And he's a very outstanding veterinary pathologist.
Did you show them to any other pathologist
between the St. Louis pathologist
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A. Yes, four other people at least. We made a
set that was blind labeled, you know, numbered, and
they made the diagnosis.
Q. Do you remember who the other four were?
A. I can tell you tomorrow.
Q. That would be great if you could.
What were the conclusions of these six
pathologists?
A. Well, they agreed with most of our
diagnoses. Sometimes in two or three instances they
disagreed and said that they were precancerous
lesions. But the conclusion was overall that it was
carcinoma of the larynx or lesions preceding
carcinoma of the larynx.
Q. Do you have the actual reports from these
pathologists still?
A. I probably still have them, but I haven't
seen them in a long time. But I have the slides.
Q. If you have the names of these pathologists
or anything convenient, if you could bring it
tomorrow, we would appreciate that.
A. I will try to find it.
Q. Thank you. Now, Dr. Sommers was and is an
eminent pathologist, correct?
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A. Well, I don't know what he is now. He may
be dead.
Q. No, he's still alive.
A. Is he still alive?
Q. He's still alive.
A. Good for him.
Q. Heis an eminent pathologist, isn't he?
A. Oh, I think so. He was anyway when he was
at B.U.
Q. And he was head of pathology at Lenox Hill
Hospital at one point, wasn't he?
A. Yes.
Q. And he was a professor of pathology at
Columbia at one point, wasn't he?
A. Yes.
Q. And you're not claiming that his
disagreement with your interpretations was anything
other than a scientific disagreement in good faith,
are you?
A. It's a scientific disagreement between the
pathologist, who is essentially a clinical
pathologist, and an experimental pathologist.
Q. But you believe his disagreement with you
was honest and in good faith, don't you?
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A. No.
Q. You do not?
A. I do not. I think he cannot honestly
believe that the term of pseudoepitheliomatous
hyperplasia means anything. And he wanted us to
publish these under that heading.
So your basis for believing that his
disagreement with you was in bad faith is that he
suggested using this term; is that right?
A. Yes.
Q. And you do not believed that a responsible,
knowledgeable scientist would use that term?
A. No.
Q. Okay. Do you have any other basis for
doubting the honesty of his disagreement with you?
A. No.
Q. Okay, thank you.
MR. RANDLES: Let's go off the record a
second.
(Discussion off the record)
Q. Now, the purpose of your contract with CTR
to do your hamster inhalation work was to develop an
animal model for the development of lung cancer in
smoke inhalation experiments, wasn't it?
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A. Yes.
Q. And you understood from the beginning that
was the purpose of the work?
A. Yes.
Q. What's the -- why does -- let me start
over. What's the purpose of developing an animal
model in general?
A. Well, I think that's too broad a question.
But specifically in the case of respiratory tract
cancer, the development of a test animal makes it
possible to test cigarettes specifically for their
ability to induce cancer in the respiratory tract',
and when you can establish a baseline for your
cigarette, to reduce it, if possible, by modifying
the tobacco.
Q. But developing an animal model is the first
step in research regarding the mechanism of disease,
isn't it?
MS. SCHNEIDER: Objection to the form.
A. Well, that is a part of it.
Q. Did anyone ever tell you why the Scientific
Advisory Board decided not to continue your contract
with CTR?
A. Well, there probably was a letter telling
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62
us that they turned us down. I don't specifically
recall. But basically communications just stopped.
Q. So no one ever orally told you why the
contract was not being continued by the SAB?
A No
. .
Q. You don't know why the SAB decided to use
the mouse as an inhalation model instead of
hamsters, do you?
A. Well, I have my interpretation, but I don't
know
.
Q
A
. You don't know.
No
.
.
Q . Actually, once they decided not to continue
your contract, the SAB did give you five additional
month s of funding to wind up your research, didn't
the
?
y
A . I don't remember that.
t Q
th . You don't remember that . We'll come back
o at.
Now, the
vast
majority
of your funding over
the y ears through CTR was by mea ns of grants, not
contracts, right?
A. Yes.
Q. After the
SAB
decided n
ot to review
your
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63
contract in 1973, did you apply for a grant to CTR
to follow up on your hamster inhalation work?
A. We submitted an application.
Q.
A. For
For a grant
a grant. or a contract?
Q. was that application granted?
A No
.
Q. .
Did
anyone ever tell you why
not?
A. No. I can't find any correspondence, and I
don't recall any verbal communication.
Q. Did you try to obtain any contracts or
grants to continue this inhalation work with an y
other agency?
A. With NIH.
Q. And did you -- which did you apply for , a
grant or a contract?
A. A grant.
Q. A grant?
A. Yes.
Q. When did you apply?
A. Oh, it must have been '74 or '75.
Q. Did NIH give you a grant?
A No
.
Q. .
Did they
tell you why not?
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A. Yes, they told us it was a lousy
application, and I should write better applications
and fewer letters to politicians.
Q. Did you try to revise your application and
reapply?
A. No.
Did they send you a formal review of your
application?
A. Yes.
Did they send you, I think they're called
pink sheets?
A. Yes.
Q. Do you still have those?
A. I think so.
Q. If you have those convenient, could you
bring them in the morning?
A. If I can find it, I'll bring it.
Q. Thank you. Do you remember what the pink
sheet said beyond the fact that you had written a
lousy application?
A. Not really. I haven't read it since 1974.
Q. After CTR decided not to continue your
contract, and after the NIH of the federal
government turned down your application for a grant
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to continue this work, did you apply to anybody else
to continue this work?
A. Well, we got in touch with the Celanese
people, and we obtained support from them.
Q. And that was the long-term contract we
talked about?
A. That was the long-term contract.
Q. Did you ever apply with anyone else for
funding for inhalation work with your hamsters?
A. I really don't think so.
Q. Okay. Have you ever diagnosed a human
cancer?
A. Oh, sure.
Q. When did you do that?
A. I was for two years at the Memorial
Hospital in New York in charge of
investigation.
clinical
Q. Are there published criteria to
differentiate between an atypical dysplasia from
carcinoma in situ?
A. I don't understand that question.
Q. Are there any published criteria that guide
a doctor in differentiating between atypical
dysplasia and carcinoma in situ?
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A. Well, the first atypical dysplasia is a
stage preceding carcinoma in situ, and the only way
you can differentiate that is by learning how you do
it.
Are there published guidelines that help
doctors determine what the differences are?
A. There are atlases of histologies.
Q. Okay. When you were looking at the tissue
from your hamsters, did you use any special stains
to determine if they had cancer?
A. No, we did it all on eosin-hematoxylin
stains.
Q. You didn't use any silver stains?
A. No.
Q. What was the Trenton Experimental Animal
Company?
A. We founded in 1965, I believe it was, a
place in Trenton, Maine, which is near the Jackson
Laboratory, in association with Dr. Murray who
was
an associate of Dr. Little, to breed inbred
hamsters, because we ran out of space. And there
were the people that had the skills from the
genetics in mice to do that. And we did it for
probably about ten years, and then it became too
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costly to transport the animals, and we had no space
in Cambridge and Boston, and so we gave it up.
Q. So if I understand it, you paid them to do
some of your breeding and then you brought the
hamsters to your lab?
A. We owned the company.
Q. Oh, you owned the company.
A. Yes.
MR. KLUGMAN: Can we get a clarification of
who the "we" is.
A. Bio-Research Consultants owned the company.
Q. Were you the sole stockholder of that
Bio-Research?
A. My wife and I.
Was Bio-Research Consultants your primary
source of income over the years?
A. Not my primary source, but both the
Institute and Consultants contributed to our
salaries.
Q. What was the primary source of your income?
A. I don't really know which was more. It
varied from time to time.
Q. But the two together --
A. The two together.
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Q. -- were your income?
A. Were my income.
Q. Did you actively try to market your
hamsters over the years?
A. Oh, yes.
Q. Did you take out advertisements to try to
sell them?
A. We took advertisements occasionally in
Science. That was the only one. And we published a
publication, Syrian Hamptgr Information Service,
which reviewed publications on hamsters from all
over the world, and we had a subscriber list of
about 200 or 300 people.
Q
And you tried very hard over the years to
convince other scientists of the merits of your
hamsters, didn't you?
A. Oh, yes.
Q. And the more hamsters you sold, the more
money you personally made, right?
A. Not really.
Q. Why not?
A. We had a fixed salary; we had no profit
distribution. We plowed the money back into
facilities.
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69
Q. Who set your salary? Who determined your
salary?
A. The board of directors.
Q. Who was the board of directors?
A. Myself, my wife, Dr. Bernfeld, and John
Pierce, a lawyer.
Q. Soyou essentially decided how much you
could take out of your company each year, right?
A
Yes
.
.
MR. RANDLES: I think this is a good point
for a break. Why don't we take an hour for lunch,
come back here about, say, a quarter to two, I guess
it would be.
(Whereupon, at
12:45 p.m.
the
deposition was
recess) adjourned for luncheon
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AFTERNOON SESSION (1:50 p.m.)
BY MR. RANDLES:
Q. Dr. Homburger, I want to clear up a few
things we were talking about this morning. I was
asking you about when your earliest CTR grant was,
and let me ask you this: Do you recall receiving a
CTR grant in 1955 to study the effect of various
components of tobacco and cigarette paper upon the
behavior of transplantable tumors?
A. It sounds familiar.
Q. And I think you got about 27,000 --
$25,000?
A. Could be.
Q. And I think that was -- we had talked about
you received one of the very early CTR grants, and
the number I have is the 29th grant awarded.
A. Could be.
Q. And according to the information I have,
you received CTR grants virtually every year from
there until the time you went to contract; is that
right?
A. That's correct.
Q. Now, earlier we were talking about the
freedom of CTR grantees to publish their results and
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conduct their research as they saw fit. You don't
know of any CTR grantee that wasn't free to publish
and conduct their research in any manner they
thought appropriate, do you?
MS. SCHNEIDER: Objection to the form.
A. I don't know how I could know about that.
Q. But you never talked to any grantee who's
ever said they weren't free to do that or anything
to that effect, have you?
A. No.
Q. Now, you knew Dr. Little for many years, as
we discussed this morning.
A. Yes.
Q. Would you describe him as a person of
strong will?
A. Yes.
Q. Now, you don't believe anyone connected
with CTR, the tobacco industry or anyone else, ever
made Dr. Little do anything he didn't want to do, do
you?
A. I don't think so.
Q. And you don't think anyone tried to make
Dr. Little do anything inappropriate, do you?
A. He was the only judge of what he was doing.
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72
Q. But he's not the kind of person you think
that would knowingly do something inappropriate, is
he?
A. Not until he became director of the Council
for Tobacco Research
.
Q. Well, even as director of the Council for
Tobacco R esearch?
A. Afterwards I'm not sure.
Q. You don't have any firsthand knowledge --
A. He told me himself he could do what he
wanted to do because his sarcophagus was built.
Q. And you understood that to mean that, as
scientifi c director of Council for Tobacco Research,
he could do what he wanted to do?
A. Yes.
Q. He had independence, he had freedom?
A. No, no, he could do what he wanted to do.
Q. He could do what he wanted to do, okay.
What percentage of your two companies'
combined income from 1955 to 1974 was from CTR?
A. I really do n't know.
Q. Would it ha ve been most of it, or would it
have been a small pa rt?
A. Not a small part, but not most of it.
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Who else did you do work for during that
time period?
A. I can't tell you.
Q. All right. Did you know Hans Meier?
A. Yes.
Q. I believe you mentioned his name earlier,
didn't you?
A. Not today.
Q. Not today?
A. I knew him -- he was a veterinarian at the
Jackson Laboratory, and at one time I even offered
him a j ob .
Q. What was his reputation in the scientific
community?
A. It was good as a veterinary pathologist.
Q. We talked earlier about your personal
qualms with Dr. Huebner. Do you know what his
reputation in general in the scientific community
was?
A. It was good.
Q. It was good. Okay. You said earlier CTR
chose to do experiments with inhalation experiments
with mice because they knew mice wouldn't work; was
that your testimony?
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A. Yes.
Q. How do you know they knew mice wouldn't
work?
A. Because we told them.
Q. You told them?
A.. We told them and we published that.
Q. Do-you know if they agreed with you that
mice wouldn't work?
A. I have no idea.
Q. So it's possible they did research with
mice because they didn't agree with you that mice
wouldn't work; isn't that right?
MS. SCHNEIDER: Objection to the form.
Argumentative.
A. How am I to know that?
Q. You don't know why they chose to work with
mice, do you?
A. No.
Q. And other researchers not affiliated with
CTR, government-funded researchers and others, have
done inhalation work with mice, haven't they?
A. I don't know about that.
Q. Do you have any idea how many hamsters you
sold over the years?
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A. I told you before, I don't know.
Q. Would it be like a thousand hamsters or
would it be like a million hamsters?
A. More than a thousand.
Q. Would it be more than a million?
A. I beg your pardon?
Q. Would it be more than a million?
A. No, I don't think so, but as I tell you, I
have no idea of the exact number. I know I sold,
for example, in batches of 400 to Dr. Dontenwill in
Germany.
Q. Were those the hamsters he published his
inhalation papers about, or was that later?
A. This was later.
Q. So would you say over the years you sold
several thousand hamsters?
A. Probably.
Q. Maybe as much as 100,000?
A. Don't press me on figures.
Q. I'm just trying to get a range from you.
MS. SCHNEIDER: He's told you he doesn't
know several times.
Q. About what did they cost?
A. I beg your pardon?
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Q. About what did you charge for the hamsters?
A. Oh, that varied, it varied widely. I don't
recall the exact figures, but it was probably as
little as $4 or $5 a hamster for non-inbred animals
up to maybe as high as $50.
Q. Per hamster?
A. Per hamster of the highly inbred lines.
Q. Do you recall how much money you got when
you sold your company?
A. I didn't sell my company.
Q. When you sold the rights to distributing
your hamsters, I'm sorry, to that other fellow
distributing for ten years?
A. I didn't get any money except that 10
percent royalty for ten years.
Q. I see. I'm a little unclear about
something we talked about earlier. You said this
hamster strain was developed by Dr. Whitney.
did you come into possession of this strain of
hamsters?
How
A. Well, Dr. Whitney was at Boston University
in the department of biology, and as you may
realize, the breeding of inbred'strains of any
rodent takes a great deal of space, and she ran out
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of space; and Dr. Fulton, her boss,
and suggested she see us because we
knew about this
had an empty
building at that time. We took over for our
Institute an abandoned motorboat garage on the
Charles.
River
So Dr. Whitney came to me and explained the
situation, and I, having worked with Dr. Little on
the mouse problem, was fascinated by this
opportunity and gave her the space, and
she joined
our group. That's how this happened. It was
completely accidental.
Q. And about when was that?
A. That was about 1957.
Q. Did she become part of your company then?
A. Yes, she became employed by our company.
Q. Did ownership of the hamster strain pass to
your company?
A. Yes.
Q. I see.
A. It was an agreement, all these hamsters
would become our hamsters, she wouldn't pay anything
for the space, but she was an employee.
Q. And you paid her a salary?
A. Yes.
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Q. And did she sign some agreement signing the
strain of hamsters over to you?
A. No, I don't think so. We were very
informal about all this.
Q. Earlier you told me about Dr. Russfield who
worked for you.
A. She was a pathologist, and she worked for
me partly full-time for a certain length of time and
later on periodically as a consultant.
Q. In the 1972-to-1974 time period, was she
working for you full-time?
A. Part of that time, yes, but then just about
then she went to Worcester, and she had a part-time
job there and part-time with us.
What was her part-time job in Worcester?
A. She was with a pathologist with the
Worcester Foundation. They did research.
Q. Was she younger than you?
A. I never ask a woman her age.
Q.
What is your best guess?
A. About the same, maybe a little younger.
Q. I see. Now, one of the standard criteria
of cancer in the scientific community is that it
should be transplantable and grow; is that correct?
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A.
Q. Yes.
Now, you attempted to trans
pla
nt the tissue
from your hamsters to another hamste r, didn't you?
A. Carcinomas of the larynx, y es, we did, and
th
did
ey
not grow.
Q. They did not grow?
A. No*. It didn't surprise me, because it's
very difficult to do that kind of t hing wi th tissue
carcinoma as small as that. But we didn't follow-up
h
on t
at.
Q. With tissue
carcinoma as s
mall as
that,
what do you mean by that?
A. Small -- the larynx of the hamste r is an
extremely small organ, and these tu mors we re very
small microscopic tumors, and it ju st didn 't grow in
those limited experiments which we did. W e gave up
because we had other things to do, and w e were
disappointed.
Q. You were disappointed beca use i t really
would have helped clarify the situa tio n ha d it
rown?
g
A. It would have helped clari fy the situation
beyond any shadow of a doubt if it had gr o wn.
Q. Yes. Dr. Homburger, I wan t to t a lk to you
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now about the sequence of events whereby you went
from a grant at CTR to a contract at CTR. Who first
suggested that you undertake a contract with CTR?
A. That was Mr. Hoyt, who was the executive
director of the Council of Tobacco Research, and he
suggested that after we began reporting to them that
we induced carcinoma of the larynx.
Q. Are you sure the suggestion that you go
from grant to contract was after you had started
reporting your results --
A. Oh, sure.
Q. -- instead of before you started the work?
A. Oh, sure.
Q. Okay. Dr. Homburger, I want to show you a
document -- and about what year would that have
been?
A. Oh, '72, something like that.
Q. When did you actually enter into that
contract with CTR?
A. What?
Q. When did your work actually officially
become a contract?
A. I don't have this exact date.
Q. Dr. Homburger, I'm going to show you a
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letter that you wrote to Dr. Hockett on October 1,
1968, and you're welcome to read all of it if you
would like, but I would particularly like to call
your attention to the last long paragraph on Page
3. All right? Certainly feel free to read it.
A. (Witness reviews document) That means that
we had a contact in 1968. (Witness reviews
document)
Q. Dr. Homburger, I apologize, I'm going to
give this to the court reporter to mark. And I
didn't plan well, and this is my only copy. We'll
be happy to make copies.
(Document marked Homburger Exhibit 1
for identification)
MR. RANDLES: Do you want to go ahead and
make them? That would be great. We'll have a copy
made while it's clean and then we'll mark it.
A. I want to remark on this, my memory being
faulty on the timing. As I told you before, I made
a list of events to time them, because it was
difficult to keep track of that. So it seems that
at '68 we had already the contract.
Q. Well, at least in '68, according to this,
you were talking to CTR about entering into a
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contract and whether your work should be
characterized as a contract?
A. Maybe the one I said would become effective
in 1970, but I can't tell you without my notes.
Q. So this discussion, just so we're clear,
this discussion in 1968 of you moving from
grant to
contract, which you raised with Dr. Hockett in this
letter, was well before you even started the
research --
A. No.
Q. -- with the inhalation work on your
hamsters; isn't that correct?
A. No, no, no.
Q. When did you start the inhalation work on
your hamsters?
A. We started this research much earlier.
Q. And when was the first time you submitted a
report to CTR, an interim report of any
the results of your hamster work?
A. I would have to look that up.
kind, about
MS. SCHNEIDER: Can we go ahead and get
copies made of the letter or whatever -- whatever
you're going to be showing to the Doctor, I would
like to be able to see it.
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83
MR. RANDLES: Go ahead and make copie s of
these as well
A. .
I would
have to lo
ok that up; I
can't
tell
you. It was earlier.
Q. I 'll ask a couple more questions, and then
we'll ret u rn to that when w e have our copies.
Y ou've testified and be en quoted before
that late in your contract at so me point Mr. Jacob
and Mr. Hockett came to visit yo u in Maine; isn't
that correct?
A. Yes, that's right.
Q. When did they do that?
A. That, again, I would sa y, go back to the
timing that I wrote dow n, but I think it was in the
summer of 1973.
Q. Do you remembe r when in the summer?
A It was in J
l A
t
. u
y or
ugus
.
Q. Did they call you before they came to visit
you?
A
Y
.
Q. es.
Who called you?
A.
Q. I don't remember.
You don't remember.
A. Maybe a secretary of Mr. Hockett or
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84
somebody called and said they would come to see me.
Q. Did they tell you what the purpose of the
meeting w
A ould be?
No
.
Q .
Did
k?
. you as
A. No. There were meetings all the time.
Q. You had meetings with --
A. -- the people from the Council for Tobacco
Research
.
Q.
And was that because
you had worked
with
them for years?
A.
Q. Yes.
What
was
discussed at
this meeting?
A. What was --
Q. What was discussed at this meeting?
A. At this meeting they discussed a manuscript
which we had submitted to them for approval for
publicati on in the Journal of the National Council
Institute , and they said that it was unacceptable to
them in t he present form. And they talked about the
review of the data by Dr. Sommers and their
suggestio n tha t w e did not call the lesions induced
b
smoke inhal ati on ca ncer
or even earl
or
y , y
microscop ic or pr einva sive cancer, but that we use
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the term "pseudoepitheliomatous hyperplasia." And
my position was that this was a totally useless term
that could mean anything and that we couldn't change
it to that term.
So then in the course of that discussion,
Mr. Jacob said, "Do you realize that if you publish
this the way you want it published and not the way
we suggest you publish it, that you will never get
another penny from the Council for Tobacco
Research?" And I quote this verbatim. And I
decided at that point to take sort of a devious way
of getting this published anyway. I agreed that I
would change the manuscript to please him.
They subsequently approved a
manuscript
that was changed to pseudoepitheliomatous
hyperplasia, and we sent it to the journal, Journal
for the National Cancer Institute. And then when
the proofs came back, I changed it back to our
version, and it was so published in October 1974.
And I never got a penny from the Council for Tobacco
Research after that.
Q. Let me go back and see if I understand
you. When you say they said, "You need to call it
pseudoepitheliomatous hyperplasia," who was the
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"they"? Did Hockett or Jacob tell you that?
A. The Council, they reported to me that that
was the opinion of the Council, and they obtained
that opinion from Dr. Sommers.
Q. At the meeting you had with Hockett and
Jacob, which one of them told you the Council said
you had to say pseudoepitheliomatous hyperplasia?
MS. SCHNEIDER: Objection, asked and
answered.
A. Hockett told me that, and the lawyer then
said that I would never get a penny more.
Q. Now, you said that they were coming to talk
to you about a draft of your NCI paper, correct?
A. Yes.
Q. When did you submit the NCI paper to CTR
for review?
A. Again, you probably have the paper. Look
it up. It says "submitted and approved," the two
dates; I don't know the dates.
Q. But it would have been before this meeting,
right?
A. Oh, yes.
Q. Now, you said you agreed you would change
the manuscript, and then did you send them a revised
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manuscript --
A. Yes.
Q. -- with the phrase pseudoepitheliomatous
hyperplasia?
A.
Q. Yes.
And
they
approved it with that language in
it?
A.
Q. Yes.
And
you
took the language out and published
the paper?
A. Right.
Q. Did you discuss anything else at this
meeting?
A.
No,
not
really.
Q. Were patent issues discussed?
A No
.
Q. .
So the sole purpose of this meeting was
to
discuss your NCI draft manuscript?
A.
Q. That
Was was their sole purpose.
there one meeting at all
that summer
with Hoc kett and Jacob?
A. That was the only meeting.
Q. Okay. Now, you've actually published the
results of your CTR-funded inhalation experiments
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with hamsters in the scientific papers, haven't you?
A. I did what?
Q. You've published the results of your
CTR-funded inhalation experiments with hamsters in
scientific publications?
A. Yes.
Q. You published the results of all that work
that you did?
A. Yes.
Q. As a matter of fact, you've published or
reported in other papers the results of your
CTR-funded inhalation experiments with hamsters at
least 18 times, haven't you?
A. I don't know that figure. You figured it
out. But I published 265 papers altogether, so 18
hamster inhalation papers would be normal.
Q. That number doesn't surprise you at all,
does it?
A. No.
Q. And the first time you referred to it in
print that I have found -- and you tell me if you
know of an earlier one -- is March 10, 1973, in a
letter to The Lancet you described your research?
A. That could be the first one, although I'm
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not sure whether the paper given in Atlantic City
was not before that. But that was only an abstract.
Q. That would be the Society of Toxicology
abstract?
A. No, that's another one in New York.
Q. Okay.
A. Bu-t that would be the Federation of
American Societies of Experimental Biology
abstract. These two abstracts may have been before.
Q. Dr. Homburger, I am going to -- I am not
going to ask you about the substance of these
publications, but I just want to show you the 18
reports that I have found in the scientific
literature of your reporting this hamster work. And
I just want you to confirm that these are
articles
or letters written by you in scientific journals
that discuss that work. And we can make copies of
these; I'm not going to go into the substance.
But the first one, which I'd like to have
marked Exhibit 1, is in The Lancet which is dated
March 10, 1973. It's a letter to the editor, and
just for the record, would you confirm The Lancet is
a British medical journal?
A. Yes. Yes, I published that.
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MR. RANDLES: I'm going to give this to the
court reporter to mark as Exhibit 2.
(Document marked Homburger Exhibit 2
for identification)
Q. The second item I have is in the journal of
Toxicology and Applied Pharmacology dated 1973. I
think it was published around -- well, it's
abstracts of papers of the 12th Annual Meeting of
the Society of Toxicology, New York, New York, March
18 to 22, 1973. And on Page 2 I believe is an
abstract of your work.
A. (Witness reviews document) Yes.
MR. RANDLES: We're going to mark this as
Exhibit 3.
(Document marked Homburger Exhibit 3
for identification)
Q. And is there, as I described, a publication
of an abstract of your hamster inhalation work for
CTR?
A. Yes.
MS. SCHNEIDER: Just so we're clear on the
record, you have copies of portions of the journal
articles that you're asking him to identify.
MR. RANDLES: Yes. The journals, of
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course, are much larger.
Q. Doctor, the third item I will show you is a
very poor copy, and it has highlighting on it which
I hope makes it easier to see, and I apologize,
which is in March 1974 abstract of proceedings from
the Federation of American Societies for
Experimental Biology. And again, I would just like
to have you confirm that this is an abstract of a
paper you presented to this group, reporting again
on the results of your CTR-funded hamster inhalation
work.
A. This was the incident where my press
conference was sabotaged.
Q. We'll get into that a little bit later.
A. This is it.
Q. This is an abstract of your CTR-funded
inhalation work?
A. Yes.
MR. RANDLES: We will mark this Exhibit 4.
(Document marked Homburger Exhibit 4
for identification)
Q. Dr. Homburger, I also want to give you a
copy of an article appearing in the Journal of the
National Cancer Institute, Volume 53, October 1974,
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92
"Strain Differences in the Response of Inbred
Hamsters to Cigarette Smoke Inhalation" by Bernfeld,
Homburger and Russf ield and ask you if this is the
report we were talking of ea rlier.
A. That says "Received April 24, 1974.° So
that gives you the date that you asked for.
MR. RANDLE S: We'll mark that Exhibit 5.
(Docu ment marked Homburger Exhibit 5
ti
)
f
id
tifi
on
or
en
ca
Q. The next item I want to show you, Dr.
Homburger, is in Experimental Lung Cancer,
"Carcinogenesis and Bioassays," International
Symposium, held at the Battelle Seattle Research
C
S
2
2
i
enter,
ngton, June
eattle, Wash
3-
6, 1974, and
includes an abstract entitled, and paper, "Cigarette
Smoke Inhalation Studies in Inbred Syrian Hamsters,"
by Homburger, Bernfeld and Russfield. And I would
just like you to confirm that this also is a report
of your CTR hamster inhalation work?
A Y
. es.
MS.
SCHNEIDER: I think each of these
articles has his name on it as an author, and I
don't se e the point of going through it with the
doctor t o put his name on all of them.
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Q. I think that's a fair point, Doctor, and
I'm going to stop and say, it would not surprise you
to learn, would it, that there are about a dozen
more scientific publications?
A. Not at all. I hope there would be more.
Q. And these are the results of your
CTR-funded hamster inhalation experiments in which
you say you created cancers in the larynx -- that
you created cancers in the larynx of hamsters,
correct?
A. Right.
MS. SCHNEIDER: Objection to the form.
Q. And each of these papers accurately
reflects your view of what your research proved,
don't they?
A. Yes.
Q. And in each of these publications you
characterize your findings in a fashion with which
you were comfortable, didn't you?
A. I suppose so, yes.
(Document marked Homburger Exhibit 6
for identification)
MR. KLUGMAN: Off the record.
(Discussion off the record)
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Q. You also, Dr. Homburger, reported regarding
your CTR-funded hamster inhalation research at
numerous scientific seminars, didn't you?
A. Seminars?
Q. Yes.
A. Well, occasionally. I didn't lecture
often.
Q. And when you did report them at scientific
meetings, you reported them from the way you thought
appropriate, didn't you?
A. Right.
Q. So, Dr. Homburger, the results of your
CTR-funded inhalation research have been
published
frequently in the scientific literature, haven't
they?
A. Yes.
Q. And those results have been available for
anyone who wants to to review them for more than 20
years, haven't they?
A. Yes.
Q. As a matter of fact, the 1982 Surgeon
General's report discussed the results of your
animal inhalation work, didn't it?
A. I don't know.
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Q. You don't know?
A. I may have seen it, but I don't know. Do
you have it here?
Q. I think we have it among our mass of
papers. We may pull it out in a bit once we find
our way.
But as you sit here today, you don't recall
the Surgeon General discussing your work in any of
his reports?
A. No. I may not have read it very carefully
anyway.
Q. Okay. Dr. Homburger, I want to return
to -- this is Exhibit 1. I want to return to
Exhibit 1 that we marked and then did not have
enough copies of. I want to return to the point
that we were making earlier --
MS. SCHNEIDER: Excuse me, could I have a
copy?
MR. RANDLES: Sure.
Q. I want to return to the point we were
discussing before on Page 3, the last big paragraph
there, where you point out that you thought you were
working under a contract but it was being handled as
a grant; do you see that?
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A. Yes.
Q. And you say you were being c
losely
monitored, and then you say, "Work do ne under
contracts is more expensive than that carried out
under grants due to taxes and differe nt distribution
between direct and indirect cost and, hence, to
larger overhead. Therefore, any CTR money which is
paying for contract work with Bio-Res earch
Consultants and on which we are payin g taxes and
carrying commercial overhead must be considered
within CTR as entirely apart from gra nt-in-aid funds
awarded to Bio-Research Institute und er which work
is planned by us and published as a s ervice to the
"
public.
You were concerned in this l etter that CTR
be clear on the distinction between g rant and
contract research as they worked with you, weren't
you?
A. Yes.
Q. And you went on to say, "To
establish a
clear separation in thinking of thes e two types of
support in our case is necessary to understand the
difference in cost between contract work and
grant-in-aid of research." What did you mean when
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you talked about the difference in cost between
contract and grant work?
A. Well, what is said above, that in the
contract work we had to pay taxes, and there was a
different distribution between cost and overhead.
Q. So it was important to you to make -- to
make that work separate?
A. Yes.
Q. Now, we talked about the timing for when
you switched to a -- from a grant to a contract, and
one thing I asked you was when you had first
reported to CTR about the results of your hamster
inhalation work.
MR. RANDLES: I would like to mark this as
Exhibit 7.
(Document marked Homburger Exhibit 7
for identification)
Q. Dr. Homburger, what I have just handed you
is a copy of a letter from you to Dr. Gardner at CTR
in which you attach a chronology of events.
A. It isn't dated.
Q. I know that, and one question I had for you
was, do you remember when you wrote this letter?
A. It must have been after 1973, but because
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it says here, "I am writing to comment on the
Council for Tobacco Research recent decision not to
continue support for our studies on cigarette-smoke
inhalation in inbred Syrian hamsters."
It must have
been after the '73 event.
Q. After it was decided not to fund a new
contract?
A. Yes.
Q. And you're certainly welcome to look at any
of this you want to, but I would like to call your
attention to Page 3 of your chronology, and the
first full paragraph at the top of that page that
starts, "On April 2, 1972, an interim report was
submitted."
A. It had been exposed up to 69 weeks at that
time.
Q. Yes. Now, this was the first report you
submitted to CTR regarding your hamster inhalation
work, wasn't it?
A. Probably.
Q. And so that would have been 1972.
MR. RANDLES: I want this marked as Exhibit
8.
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(Document marked Homburger Exhibit 8
for identification)
Q. I now want to hand you another letter --
I'm sorry, I may have handed you multiple copies.
Dr. Homburger, what I have handed you is a
letter dated June 19, 1970,
from you to Mr. Hoyt
which states, "Enclosed are two signed copies of
each of the agreements with the Bio-Research
Institute (contract No. 4) and Bio-Research
Consultants (contract No. 5)." Did I read that
correctly?
A. Yes, I think so.
Q. And this attached contract, which you
returned to CTR on June 19, 1970, is the contract
that covered your Syrian hamster inhalation work for
CTR; is that correct?
A. Well, I really -- one thing I don't know is
what preceded this. I agree with you that the date
here is '72 and that this is the beginning of a
hamster study, but I don't know what went on before.
Q. The date actually is 1970, correct, June
19th?
A. Yes.
Q. So if we put this against the chronology of
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events you described, you entered into a contract
before you submitted any report to CTR about the
results of the hamster inhalation?
A. I'm not sure of that.
Q. You're not sure?
A. No.
Q. You're not sure of the sequence of events?
A. I just don't believe that.
Q. Okay. Is your chronology in error?
A. No. There are other things here. There is
a letter that I wrote to Mr. Hoyt dated about that
time when I referred to earlier reports, to a
technical bulletin on the smoking machine, and on
the inhalation study long before this date.
Q. When did you --
MR. KLUGMAN: Excuse me, could I have that
read back.
(Answer read)
Q. Do you have a letter?
A. Oh, yes, I have that letter.
Q. Could you bring that tomorrow? Did you
review that letter before you came here to testify
today?
A. I looked at it this morning.
DORIS O. WONGASSOCIATES
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Q. Okay. And what was the date of that
letter?
A. Search me.
Q. I'd appreciate it if you would bring that.
Do you remember when you first started that hamster
inhalation research, what year that would
A. That's just the problem.
have been?
Q. But what we have before us is a letter in
1968 where you talked to Hockett about
the need to
clarify whether you're under a grant or a contract
for financial reasons, correct?
A. Correct.
Q. And then we have a June 19, 1970, letter
where you are returning signed
contracts to start
your Syrian hamster research, at least under this
contract, correct?
A. Yes.
Q. And then in the chronology you outlined --
in the chronology you outlined you report -- you
testified that your first interim report was
submitted on April 2, 1972, to CTR regarding
hamster inhalation work; isn't that correct?
A. Let me see that.
Q. This is the chronology.
DORIS O. WONG ASSOCIATES
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A. (Witness reviews document) Here is one in
1971, publication on "High Nicotine Tolerance of
Syrian Golden Hamsters." So that was before that.
On November 7, 1969, the use of inbred
Syrian hamsters was first suggested by us for the
study of the effects of rodent viruses on tobacco
smoke effects then proposed by Dr. Sim of Yale who
wished to join us for this work. CTR declined to
support this project.
m
So in '69 we were already
working with the smoking machine inhalation.
Q. Maybe my question wasn't clear, Doctor.
Let me try that again.
The contract you entered into with CTR
in -- that you returned to CTR on June 19, 1970, was
the contract to start the Syrian golden hamster
inhalation project which you eventually published
the articles we discussed, correct?
A. That's probably correct.
Q. So when you entered the contract on June
19, 1970, neither you nor CTR knew what the results
of that work would be, because it hadn't been
started yet; isn't that correct?
A. That's right.
Q. Now, Dr. Homburger, you've been critical of
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the federal government for refusing to fund some of
your work, haven't you?
A. Yes. Not just for refusing to fund some of
my work, but for refusing to support studies in that
direction. I didn't care particularly whether we
would get support or not -- we had already the
support from the British -- but I was very concerned
that this method would be forgotten, which actually
is what happened.
Q. And you criticized the government in some
pretty strong language in the public arena, haven't
you?
A. I believe so, yes. Why not?
Q. As a matter of fact, you, after the
government had refused to fund work in areas you
thought they should and rejected applications from
you in that area, you've said that they were
stagnant; do you recall using that phrase?
A. Stagnant?
Q. Stagnant.
A. Well, that's a mild expression.
Q. And at one point didn't you say that the
control of grants in the federal government was an
oligarchy of the few controlling the grants?
DORIS 0. WONG ASSOCIATES
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A. Was an oligarchy; did I say that?
Q. I was asking you if you said that.
A. It's well said.
Q. It is well said; it's picturesque. And
what did you mean, what do you mean by that?
A., I meant that they were derelict in their
duty to the-public health.
Q. And why were they derelict?
A. Because as the work with the
British/Celanese Cytrel cigarette showed, it was
possible to demonstrate that a safer cigar-ette was
achievable, and our government agencies ignored
that.
Later the cigarette companies, Dr. Gori,
did these dilatory tactics by giving contracts to
the Institute in Philadelphia, where he probably
still works or where he worked after leaving the
NIH.
Q. What do you mean by dilatory tactics on
behalf of Dr. Gori?
A. Well, as he wrote me himself, it would
never be possible to develop our method because of
certain Senators' positions, and he didn't try.
Q. Do you have a copy of that letter?
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A. I think so.
Q. Did you look at that letter this morning?
A. Not this morning, but very recently.
Q. Once again, if you have it handy --
A. I'll see whether I have it.
Q. I wasn't clear, were you blaming Dr. Gori
for being dilatory, or are you blaming the Senate
for being dilatory?
A. Well, everybody. I mean, I informed
Senator Brooke from Massachusetts of this situation,
I informed Speaker O'Neill and John McCormack. I
lobbied for money for the Public Health Service with
Mary Lasker's group long before I was familiar with
the ways in which to influence this legislation and
this funding. So I used my knowledge, to no avail.
Q. So let me see if I'm clear on what you.
did. You applied for funding with the government to
do hamster inhalation work?
A. Yes.
Q. And they turned you down?
A. Yes.
Q. You then lobbied a number of influential
politicians and people in the Public Health Service
to try to get this sort of work started, didn't you?
DORIS O. WONG'ASSOCIATES
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A. Yes.
Q. And they all told you no, didn't they?
A. They didn't do anything.
Q-
They didn't do anything.
Why do you think they didn't do anything?
A. Because of the tobacco interests. I mean,
this is by now very obvious that the tobacco means
big money, not only for politicians but for a whole
living of whole states is based on tobacco income.
Q. Let me see if I understand your testimony.
Are you saying that you believe that the Tobacco
Working Group, the National Cancer Institute, the
Public Health Service and the U.S. Congress were all
in a conspiracy with the tobacco industry to shut
down this area of research?
MS. SCHNEIDER: I object to the form.
A. I wouldn't call it a conspiracy, but it
just happened to go in that direction.
Q. Well, it just happened, or was someone
trying to make it go in that direction?
A. Well, you know that as well as I do. Maybe
better.
Q. Well, since I was about 13 years old when
this happened, I really don't.
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107
MR. RANDLES: Why don't we take about a
ten-minute break, and then we'11 start again, all
i
h
?
r
g
t
(Recess)
BY MR. RANDLES:
Q. Now, in 1973 you reached the point where
you had completed your contract with CTR, hadn't
you?
A. '73.
Q. '73.
A. Well, I don't recall exactly the duration.
You hav e the contract here.
Q. Yes. You fulfilled the terms of that
contrac t, didn't you, at some point?
A. I believe so.
Q. And in 1973 or thereabouts, you were asking
CTR for a new contract, right, to do additional
work ?
A. Yes.
Q. And you proposed a fairly ambitious
researc h p roject, didn't you?
A.
Q. I
A think so.
research project
of
something
like
$600,00 0 a year, correct?
DORIS 0. WONG ASSOCIATES
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A. I don't remember those figures.
Q. But you remember it was a large contract?
A. It was a substantial contract.
Q. Do you know what percentage of CTR's annual
budget at that time --
A. I have no idea.
Q. -- you were asking for?. Okay.
Previously you had received, toward the end
of your grant work, about $60,000 a year; does that
sound about right?
A. It sounds about right.
Q. And so if you were asking for, let's say, a
$300,000 yearly contract, you were asking for a big
increase, weren't you?
A. Well, if I did, I don't know.
Q. Do you remember whether the contract you
were asking for would have been larger in scale than
the grant work you did?
A. I have no recollection.
Q. Now, the Scientific Advisory Board decided
not to go forward with additional hamster work,
right?
A. Yes.
Q. And earlier you had said that, and correct
DORIS 0. WONG ASSOCIATES
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me if I don't have your testimony right, you had
said that Gardner essentially didn't know anything
about toxicology inhalation studies.
A. Yes.
Q. Do you remember who was on the Scientific
Advisory Board at this time?
A. I don't remember everybody, but I think
Gardner was on it and Lynch and Sommers.
Q. Now, you're not saying there weren't people
other than Gardner on the Scientific Advisory Board?
A. No, there are others.
Q. And some of them had expertise in
inhalation experiments, didn't they?
A. Inhalation studies, I don't think so.
Q. You don't think so.
A. No.
Q. So you don't think anyone on the Scientific
Advisory Board was qualified to evaluate your
research?
A. I am inclined to think that.
Q. Was anybody at NCI qualified to evaluate
your research?
A. Oh, yes.
Q. And they still elected not to proceed with
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110
your work?
A. Not to proceed.
Q. At the -- we talked about this earlier. At
the April 8, 1974, American Federation of Pathology
meeting, you presented a paper summarizing your
animal inhalation experiments, didn't you?
A. Yes.
Q- And also prepared and left for anyone who
wanted to pick it up a press release regarding your
research, right?
A. Yes.
Q. Now, you also tried to schedule a press
conference, didn't you?
A. I didn't schedule it. The organizers of
the meetin
did
g
.
Q. The organ izers scheduled it?
A. Yes. It was a custom that when somebody
presented somethin g new in the conference, there
would be a press conference afterwards; and I was
told to go to a certain room, and when I wen t to
that room, there was nobody there. I didn't pay any
attention at that time , and it wasn't until the
Cipollone case that th e lawyer Edell, E-d-e-1-1,
found a letter from a public relations person of the
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Council about the research gloating about the fact
that they had sabotaged my press conference.
Q. Is it your testimony that you didn't know
the press conference was cancelled while you were
there?
A. I had no idea.
Q. I'd like to show you a document --
MR. RANDLES: Mark this Exhibit 9.
(Document marked Homburger Exhibit 9
for identification)
Q. This is a document -- I know you've seen it
before -- a memorandum from Leonard Zahn.
A. That's the one.
Q. This is the one Mr. Edell showed you,
correct?
A. Yes.
Q. And you testified regarding this during the
Cipollone case, didn't you?
A. Yes.
Q. I want you to feel free to read any and all
of this you'd like to, but I'm going to ask you a
series of questions about what this document says.
All right?
A. Yes.
DORIS O. WONG ASSOCIATES
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Q. Now, it says in the second paragraph, Mr.
Zahn reports, "The afternoon of my arrival, I
learned that Judy Graves, public information officer
for the American Society of Experimental Pathology
(ASEP), that an unlisted press conference had been
scheduled for Homburger for 12 noon on Monday." Do
you know what he meant by an unlisted press
conference?
A. No.
Q. Who was Judy Graves?
A. I have no idea.
Q. You don't know her?
A. (Witness shakes head)
Q. Mr. Zahn goes on to say, "He.was to have a
news release with him and was to tell the
press that
the tobacco industry was attempting to suppress
important scientific information about the harmful
effects of smoking. He was going to point
specifically at CTR.°
Is that accurate; is that what you had
planned to do?
A. No. I was just going to report what I had
said in the paper, and you have seen the abstract.
Q. Oh, you weren't going to say anything about
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113
CTR trying to stop you fro m publishing or anything
like that?
A.
Q. No, I
Where wasn't
do you goin
thin g to.
k Mr. Zahn got
that
idea?
A. Well, he's crazy.
Q. You never had any conversations with him
b
t it?
a
ou
A. I have never met Mr. Zahn, to my knowledge.
Q.
A. Okay.
Is this a woman,
Zahn?
Q. Leonard Zahn.
A. Oh, Leonard.
Q. I'd like you to turn to the second page of
this and the paragraph at the top of the page, and
in the last sentence it reads "She" talking about
Judy, "called back later that evening to say she had
done so, telling Homburger the press conference had
been called off because of scheduling
difficulties." Let me go to the sentence above
that. "I suggested to Judy that sh e called him then
(Sunday) at home an d arrang e to mee t him at his
hotel. She called back lat er that evening to say
she some done so, t elling Homburger the press
conference had been called off."
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Did Ms. Graves ever call you?
A. No. I don't recall any of this. I told
you the story as I recall it. I walked to the room
for the press conference. There was nobody there.
And I didn't pay any attention; I thought it was
just a slipup.
Q. So if Mr. Zahn is accurately writing down
here what Ms. Graves told him, she was wrong when
she said she called you?
A. Absolutely.
Q. All right.
A. "I doubt if you or Tom will want to re'tain
this note." I think that's an interesting
afterthought.
MR. KLUGMAN: Object and move to strike.
Not responsive to anything that I heard.
Q. Dr. Homburger, what is the Sendai virus?
A. I don't know. I said in my testimony at
the Cipollone case, through one of the lawyers,
"Let's not talk about this, because I know very
little about viruses, and you don't
know anything."
And that's still my position; I'm not a biologist.
Q. Did you test your hamsters for viruses?
A. They had to be tested for viruses because
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of the convention to do that and the regulations of
the National Institutes of Health.
Q. How often did you test your hamsters for
viruses?
A. I don't remember, but probably every other
month or so.
Who was responsible for the viral testing
in your lab?
A. It was sent out to a laboratory in Florida.
Q. Who actually drew the samples?
A. .Oh, some of the technicians.
Q. Was the Florida lab the only lab you used
to test for viruses?
A. I don't recall really how this was going on
over the years, but there were maybe one or two
other laboratories.
Q. Did any laboratory report ever come back
regarding your hamsters positive for the Sendai
virus?
A. Yes. Yes, and that was later determined to
be a laboratory error.
Q. What lab reported your positive finding?
A. I don't remember.
Q. Did more than one lab ever report a
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positive finding?
A. No.
Q. And when was this positive finding, what
year?
A. I don't recall.
Q. Did they find any other pathogens?
A. No. And Dr. Rauscher, who was a president,
I think, of the American Cancer Society and a very
highly regarded biologist, stated that it wouldn't
make any difference whether or not there were Sendai
viruses in the colony, because they were not known
to be cancer-producing viruses.
Q. But there were others, other experts and
people in the animal experimentation business, who
had ventured opinions that viruses can create tissue
damage that can look a lot like precancerous
lesions; isn't that correct?
A. There were all sorts of theories bandied
around. There was Francisco DeRenals, a good friend
of mine, who was one of the first thinking that
cancer can be caused by viruses, who said, "There
has never been a cancer reported in the absence of a
virus." And that's obviously a nonsensical
statement.
DORIS 0. WONG ASSOCIATES
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Q. But by your own admission, you're not
expert in viruses, so you can't speak with any
authority as to what effects viruses cause?
A. No, I would not.
Why, after this bad experience with CTR,
did you enter into another contract with Britishh
cigarette companies to do the same kind of work?
A. Well, I thought it was important, and if I
could find support, I would take it; and that was
good reasoning, I think, because we did good work
with them.
Q. And you're willing to work with tobacco
companies --
A. Oh, yes.
Q. -- in the future?
A. As long as there was the motivation to find
a way for the tobacco companies to test cigarettes
for their relative carcinogenicity and to work
towards a safer cigarette, I was all for that.
In your meetings, meaning your meetings
with Ms. Schneider today, how long did you all meet?
A. With her?
Q. Yes.
A. How long do you think it was? 20 minutes,
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half an hour. We didn't look at our watches.
Q. What did you discuss?
A. I asked her, what is this case all about,
because I wasn't quite sure from what I had been
told over the telephone. She explained that to me,
and she explained that there were two sessions going
to go on here, one as we are in it now, and another
one making a tape of all this tomorrow, and that was
about it.
Q. Did you show her any documents this
morning?
A. I did show her two or three documents.
Q. Did she show you any documents?
A. No.
Q. And did you show her some of the documents
we've talked about today?
A. Yes.
Q. Did you all discuss whether or not you
should bring any of the documents with you to the
deposition?
A. She said there was no need today to bring
any documents.
MR. RANDLES: Let's go off the record for a
minute.
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(Discussion off the record)
BY MR. RANDLES:
Q. Dr. Homburger, I just want to get a couple
of things identified and then we'll be about done.
MR. RANDLES: I'd like these marked
exhibits next and next.
(Documents marked Homburger
Exhibits 10 and 11 for identification)
Q. This first item will be Exhibit No. 10, and
I'd just like you to tell me if this is the report,
what it professes to be, which is the report on your
contract, "The Determination of the Usefulness of
the Syrian Golden Hamster as Model Animal for
Inhalation Studies," submitted to The Council for
Tobacco Research in September of 1973.
A. (Witness reviews document)
MS. SCHNEIDER: You want him to look
through this 30- or 40-page document? So the record
is clear, it's not a one- or two-page document.
MR. RANDLES: I'm just asking him if he
knows it. He wrote it, I think.
A. No, it was prepared by Peter Bernfeld. But
it looks familiar to me.
Q. Is that the final report of your research
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results that you submitted to the CTR for your
hamster work on this contract?
A. On C-191, yes.
Q. Now, I'd like to show you an item, Exhibit
11, and ask you if you would identify this. This is
a manuscript that you sent to Robert Hockett,
Research Director for The Council for Tobacco
Research on March 28, 1974; is that right?
A. Yes.
Q. And this was the draft manuscript for the
JNCI article, correct?
A. That's what this is.
Q. That's right. That's what this is?
A. Yes.
Q. This is the draft?
A. Yes.
Q. And this is the first and only draft of
that article you sent to CTR, right?
A. Yes.
Q. Just a couple more questions, Doctor. At
your meeting in the summer of 1973 with Jacob
and
Hockett, you said that -- correct me if I've got
your statement wrong -- you said that Jacob
essentially said to you, "If you publish these
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121
results the way you want to, you're not going to get
another dime from CTR," correct?
A. Right.
Q. Did he
tell you
the alternative? Did he
make you any promises as to what they would do if
you agreed not to publish those results?
A. No. He didn't bring up the question of not
publishing the thing at all. He wanted me to change
the identification of the lesion s from cancer to
pseudoepithe liom atous hyperplasia. It was just
implied that I wouldn't get anything any more if I
wouldn't do it
Q. So .
they
didn't promise you additional money
if you did?
A.
Q. No.
At
the
time of this meeting or
before
this
meeting, had you had any discussions or
communica
regarding tio
le ns w
gal ith Ed Jacob
issues? or anyone at CTR
A.
Q. Without what?
Regarding any legal
issue having
to
d
o with
your contract.
A. No.
Q. And
there
were no disputes about your
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conduct under the contract?
A. There was correspondence with Hoyt, which I
will bring you, and which I would think the conduct
did not require us to publish without their
permission for the things we had done
before.
Q. Other than that, were there any disputes?
A. No, there were no meetings or discussions.
MR. RANDLES: That's all I have today. A
couple of my colleagues may have some follow-up
questions. Thank you, Doctor.
CROSS EXAMINATION
BY MR. KLUGMAN:
Q. Dr. Homburger, let me ask you a few
questions. My name is Steve Klugman. I'm here on
behalf of The Council for Tobacco Research. You
referred a little earlier to Dr. Russfeld, one of
your colleagues?
A. Russfield.
Q. Russfield, excuse me, one of your
colleagues at Bio-Research Consultants. During this
period that we're talking about, that
is, 1972,
1973, 1974, was she a full-time employee of yours?
A. I don't recall that. I think it was about
the time when she changed to go to Worcester and be
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part time with us.
Q. I have to correct you, or I won't be able
to go home. It's Worcester. My wife is from
Worcester, and they take great umbrage at that,
particularly someone who has spent so much time only
50 miles away.
But in any event, can you tell us a little
bit about Dr. Russfield's credentials as a
pathologist?
A. She was a very, very well-known
experimental pathologist and had all the board
certifications, as far as I knew, and she did an
excellent job.
Q. Where was she trained?
A. I don't really remember.
Q. Where did she work before she joined your
company?
A. Search me. I don't remember.
Q. Was she ever an academic pathologist?
A. Yes, I believe so.
Q. Do you know where?
A. No, I don't remember.
Q. She had a faculty position at some
university?
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A. Oh, certainly. I don't remember; I can
look it up.
Q. But she did not have such a position when
she was working with you?
A. I don't believe so, no.
Q. Did she publish articles other than those
that she published in conjunction with you and Dr.
Bernfeld?
A. Yes, she had publications of her own.
Q. Do you have any idea how many?
A. Search me. It's a long time ago.
Q. Do you know what the subject of any of
those publications was?
A. I don't remember these things. I hired
this woman years ago. She was an excellent
pathologist, an excellent coworker with us, and I
didn't investigate more than just before I hired
her, and I have forgotten this. I can look it up in
American Men and Women of Science and tell you; you
can look it up.
Q. Dr. Homburger, just so we're clear, I
understand you just testified she's an excellent
pathologist.
A. Yes.
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Q. Or was an excellent pathologist. I'm
trying to find out a little bit about what lies
behind that.
A. Well I can give it to you. If it's
important, I'll find out, but
I don't remember.
Q. About how long was she working for you in
the '70s? Five years, ten years?
A. She was with us for an eternity.
Q. She had been with you since at least the
mid-'60s?
A. I think so. Since we started the
Institute.
Q. You said that you showed Ms. Schneider some
documents this morning?
A. Yes.
Q. What documents were they?
A. I showed her the periodic -- what do you
call it -- listing of the occurrence of events in
time.
Q. You referred this morning to a chronology;
is that what you're talking about?
A. Yes, a chronology.
Q. Anything else?
A. And I think I showed her one or two of the
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letters that I mentioned from Mr. Hoyt, but that was
about all we looked at.
Q. Had you ever met Ms. Schneider before this
morning?
A. No.
Q. Had you spoken to her on the phone?
A. Yes.
Q. When did you speak to her, and what
did you
talk about?
A. Just a few days ago, and again yesterday or
the day before, about this meeting.
Q. Just setting up the meeting for this
morning and the deposition?
A. Yes.
Q. Did she ever ask you what you would testify
about?
A. No. We talked about it this morning. I
said, "Well, what can I do in a case involving
smoke" -- what's it called -- "environmental smoke?0
And we had a little conversation like that, and she
told me what this was all about. She didn't tell me
what to testify.
Q. I didn't mean to suggest that she did.
you tell her what you would testify about?
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A. Not really, no. I told her what I couldn't
testify about -- I told her I was not an expert on
environmental smoke.
Q. Over the last couple of weeks, are there
any other documents that you've reviewed on this
subject, other than the chronology you talked about
and the letters to Mr. Hoyt?
A. Not really, because in the last few days,
because of that call I got from this lawyer in Texas
two or three weeks ago or a month ago, I reviewed my
material then. So I didn't really review it again
until this morning.
Q. Do you recall what your level of funding
was; that is, about how much funds you were getting
from CTR in the early 1970s?
A. Well, I don't really recall. I would have
to look it up. But I know that before we did the
inhalation studies and before they stopped our
support, we had gotten close to a million dollars.
Q. I'm trying to find out what the level of
that -- let me strike that
and start again. I was
asking you about the level of funding in the last
few years.
A. I don't really recall, but your colleague
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had a listing of that.
Q. If I tell you that -- if I told you that in
1971 -- let me take a step back. In 1970, grants
and contracts, you received about $197,000 from CTR?
A. That makes sense.
Q. And somewhat less than that in 1971 and
'72?
A. That makes sense.
Q. $135,000, $140,000?
A. That makes sense.
Q. And about what proportion of the revenues
of your companies did that represent?
A. Well, I can tell you this: When we had our
best times, it was about a million.
Q. But what was it approximately in 1971 and
'72?
A. I don't recall, but it was in that
neighborhood.
Q. About a million dollars?
A. About a million dollars.
Q. So that represented about 15 percent of
your revenue?
A. Something like that.
Q. I think you testified about this earlier,
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but was it your understanding when you entered into
this contract in 1970 that CTR was interested in
finding an animal model for lung cancer?
A. Yes. At that time they were; at least I
thought they were.
Q. That was your understanding in 1970?
A. Yes.
Q. And between that time and the time in 1973
or 1974 when your contract terminated, did anyone
ever tell you that CTR was considering doing
inhalation studies with mice?
A. I think I heard about that later when these
studies were well underway.
Q. Did you understand at some point that CTR
was proceeding with inhalation studies using animals
other than hamsters?
A. Animals other than what?
Q. Hamsters.
A. No.
Q. You never heard that?
A. No.
Q. Dr. Gardner never told you that?
A. I don't recall that. They may have played
around with the Walton smoking machine and used
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130
other animals, but I was not aware of the details.
Q. Let me ask you to take a look at Exhibit 9,
Dr. Homburger. That's the April 22, 1974,
memorandu m from Mr. Zahn. Do you recall that? You
testified about it a few minutes go.
A. Yes, Mr. Edell gave me.
Q. I just want to make sure I'm clear. Is it
your testimony that Mr. Zahn was wrong when he
stated that Ms. Graves called you back to sa y that
she had called off your press conference?
n
d MS. SCHNEIDER: Objection. Asked a nd
a
swere
.
A.
Yes, that's definitely not
correct.
Q. Let me ask you to take a look at th e
portion o n Page 1 of that memorandum which M r.
Randles a lso sho wed to you, and the last -- the
second pa ragraph , when it says that, "He," and
that's you, Dr. Homburger, "was to have a news
release w ith him and was to tell the press that the
tobacco i ndustry was attempting to suppress
important scientific information about the harmful
effects o f s moki ng. He was going to point
specifica lly at CTR. " Is that also wrong?
A. Yes.
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Q. Is there anything in this memorandum that
you know is correct?
A. No.
Q. It may be all wrong, as far as you know?
A. I certainly didn't see it that way. I was
just going to a room where there was a press
conference supposed to be held, and nobody was
there.
Q. And the purpose of your press conference
was to report your scientific results?
A. Yes.
Q. And you did report your scientific results
at that meeting?
A. I did that in the talk I gave before the
press conference was to be held.
Q. And you showed slides at that meeting?
A. I showed slides.
Q. And --
A. It was the usual ten-minute paper.
Q. And you said that you found microinvasive
carcinomas?
A. Yes.
Q. Was that the substance of what you
presented in that talk, the same as what --
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132
A. Well, there was an abstract on that talk.
Q. Excuse me, Dr. Homburger, let me finish my
question if you would. Is the substance that you
presented in that talk in Atlan tic City the same as
the substance that you intended to present in th e
press conference?
MS. SCHNEIDER:
A
Y Object ion to the form.
.
es.
Q. Now, you
talked about a meeting that
occurred in Maine,
correct? in July or August of 1973,
A. Correct.
Q. And at that meeting you said Mr. Jacob made
some statements to you about the consequences of
your publishing your paper - -
A. Yes.
Q. -- correct?
A. Right.
Q. And that was the pa per that you had
intended to publish?
A. In the Journal of
t
he National Cancer
Institute.
Q. That was my questio n; why don't you let me
ask it.
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MS. SCHNEIDER: You're asking the same
questions and covering the same ground that's
already been covered this morning.
MR. KLUGMAN: That's because I'd like to
ask another question, and it would be difficult, I'm
sure you'd have a lot of objections if I said, do
you remember your testimony this morning --
MS. SCHNEIDER: You asked him whether he
disagreed what was in it, he said that already, the
exact same question was asked. So that's why he
easily anticipates what you're asking, it''s already
been asked and answered.
MR. KLUGMAN: Are you finished, we'll get
on with the deposition?
MS. SCHNEIDER: Please ask some new
questions.
MR. KLUGMAN: You are finished?
MS. SCHNEIDER: We're waiting for you. You
know, we've taken breaks, we've been waiting. It
seems like we've just gone on and on with your
questions.
MR. KLUGMAN: This is a horrible imposition
on your time and I apologize for it. We'll muddle
along the best we can.
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134
MS. SCHNEIDER: It's no imposition to me.
We took a ten-minute break, then for an hour, then
we were waiting, we were told we were waiting for
copies. Now we're asking questions about the same
areas.
MR. RANDLES: Now hold it. I've tried to
avoid wrestling with you in this deposition, but we
started off by waiting until 11 o'clock to start a
ten o'clock deposition, we took an hour for lunch,
we've been here a grand total --
MS. SCHNEIDER: You took an hour for lunch.
MR. RANDLES: Exactly. We've been here a
grand total of less than four hours for a deposition
that was scheduled all day. I think we're doing
pretty well. Why don't you go ahead, Steve.
MS. SCHNEIDER: I mean, when you have
questions, y es, we can go on with the deposition.
Let's ask so me real questions, not ones that have
been asked and answered.
MR. KLUGMAN: Should I run my questions by
you first for approval?
BY MR. KLUGMAN:
Q. Does Ms. Schneider represent you,'Dr.
Homburger?
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A. I beg your pardon.
Q. Is Ms. Schneider your lawyer?
A. No, I have no lawyer.
Q. The meeting that you testified among you,
Dr. Hockett and Mr. Jacob, the subject of that
meeting I think you said was the article that you
intended to publish and in fact did publish in the
Journal of the National Cancer Institute; is that
right? And they came up to Maine to see you
sometime in the summer of 1973?
A. Yes.
Q. And you in your testimony attributed some
remarks to Mr. Jacob; is that right?
A. Right.
Q. Is there any document that you're aware of
that reflects Mr. Jacob making those remarks?
A. Well, there is my testimony in the
Cipollone case.
Q. Before you testified about it in 1978 --
excuse me, let me withdraw that. Before you
testified about it in 1987 --
A. I don't believe so.
Q. -- or 1988, whenever that testimony was.
This happened during 1973?
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A. Correct.
Q. During the succeeding 15 years, is there
any piece of paper that was created that reflects
the substance of that testimony?
A. I don't think so.
Q. And you wrote letters to CTR, did you not,
during at least some of those 15 years?
A. Oh, yes.
Q. And you complained about your not receiving
further funding, did you not?
A. Say that a little louder.
Q. You received -- withdrawn, let me start
again. You complained to CTR about the fact that
you didn't receive any further funding, did you not?
A. I did, yes.
Q. And when you didn't receive any further
funding from the National Cancer Institute, you
wrote some letters complaining about that?
A. I had no previous funding from the National
Cancer Institute for these studies.
Q. I meant further funding for these studies.
When you didn't get funding for them, you wrote your
Senator, your Congressman --
A. Right.
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Q. -- but during the period from 1973, until
the time that Mark Edell put you on the witness
stand 15 years later, you never in writing said
anything about the comments that you now attribute
to Mr. Jacob, correct?
A. I'm not quite sure. I may have mentioned
something in the letter to The Lancet which you
showed me.
Q. Let's take a look at that.
A. Let's take a look at it.
Q. The letter to The Lancet is dated March 10,
1973.
A. Oh, so -- okay.
Q. So it would have been hard for you to talk
about what happened in the summer of 1973. But it's
not in any document you can tell us about?
A. No.
Q. Did anybody ever tell you that the
decisions by the Scientific Advisory Board of CTR
not to enter into additional contracts with you in
1973, 1974 and succeeding years, was based on
anything other than a decision, a scientific
decision, by the members of the Scientific Advisory
Board?
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A. I think the only statements they made was
comments on our application. Dr. Gardner wrote me a
letter, and it was purely in scientific talk.
Q. Do you have any basis for believing that
that decision by the Scientific Advisory Board was
based on anything other than the Scientific Advisory
Board's views of scientific merit, however misguided
those views may have been?
MS. SCHNEIDER: Objection to the form.
A. I don't know that.
Q. So as far as you know, there weren't any
other factors?
A. I wouldn't know. How could I know about
them?
MR. KLUGMAN: Just one minute.
Q. Dr. Homburger, were you told consistently
that it was the objective of CTR and of the
Scientific Advisory Board in funding these
inhalation studies to find an animal model for lung
cancer?
A. I was told that from the very start by Dr.
Little and later by Hockett, yes.
Q. And that was true straight on through;
that's what you were told?
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A. I wasn't told much about that any more in
the later periods.
Q. But you were never told anything
inconsistent with that, were you?
A. No, I was not ever told that.
Q. And you never developed lung cancer in any
of your hamsters, did you?
A. What did you say?
Q. Your hamsters never developed lung cancer,
did they?
A. What do you mean? Half of them that smoked
developed lung cancer. You mean respiratory
cancer. They didn't develop lung cancer, because
obviously the dose of smoke entering into the lung
was too small. The hamster has a very tight system
of bronchial trees, which is probably 1/100 that.of
the human.
Q. Let me ask you just a couple more
questions. I wasn't clear on your earlier testimony
about the Scientific Advisory Board.
I was clear
about your comments concerning Dr. Gardner and his
lack of expertise in inhalation studies. Let me ask
you first, what was Dr. Gardner's field?
A. Dr. Gardner was an anatomist. He taught
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anatomy at Yale.
Q. Was he involved in cancer research?
A. Not really.
Q. Are you sure of that?
A. I'm sure of that.
Q. Were you back in the 1970s aware of who the
members of the Scientific Advisory Board were?
A. I was aware of most of the members. I
didn't know the entire constitution, but probably
two thirds of them I knew.
Q. Is it your testimony today that in the
1970s when decisions were made on funding of your
proposals to do inhalation studies with hamsters
that there was nobody on the Scientific Advisory
Board of CTR with expertise in that area?
A. Probably not. As I pointed out, I didn't
know all of the members, but the ones I knew were
not experts in this field.
Q. And you don't know about the ones that you
didn't know, correct?
A. How could I?
Q. Well, all I want to do is be clear on this,
Dr. Homburger. Did you sit down in 1974 and/or
thereabouts and say, "Who are all these people that
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turned me down," and satisfy yourself that there
wasn't anybody with expertise in the field?
A. I didn't do that.
Q. So there may be some people who had that
expertise, you just don't know?
A. No, I don't know.
Q. You didn't know then and you didn't know
now, correct?
A. No.
Q. Too many negatives in there. Is it the
case that you didn't know then and you don't know
now whether there was anybody on the Scientific
Advisory Board of CTR that had that expertise in the
1970s; is that correct?
A. That's correct.
MR. KLUGMAN: I don't have anything
further. Thanks for your time.
MR. ALDEN: I just have a couple of
questions.
CROSS EXAMINATION
BY MR. ALDEN:
Q. My name is David Alden, and I'm
representing R.J. Reynolds Tobacco Company.
Dr. Homburger, have you ever served on an
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analog to the SAB, some kind of funding agency where
you review and pass upon the merits of grants that
are submitted?
A. No.
Q. In your experience, is it common for
granting agencies to receive applications for more
grants than they have money to distribute?
A. Oh, yes; that's the standard.
Q. And accordingly, granting agencies
necessarily, and in fact their basic reason for
existing, is to choose between and among the
applications that they receive, correct?
A. Yes.
Q. Did you ever -- can you think of one of
your projects for which you submitted a grant
application that was denied that you thought
properly should have been denied?
MS. SCHNEIDER: Objection to the form.
A. That should have been denied?
Q. Yes.
MS. SCHNEIDER: Objection to the form.
A. I wouldn't submit anything that should have
been denied.
Q. So your view is anything you've ever
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submitted to a funding agency, at least in your
view, warranted and merited being funded?
A. Oh, absolutely. I think every investigator
thinks that or he wouldn't spend the time necessary
to make an application, which is about a third or a
fourth of his time today.
Q. And would you say that it's a fair
characterization to say that the field of --
research funding is a competitive activity in which
there are clearly those who receive the funding and
those who don't?
A. Oh, absolutely, yes.
Q. And I think, as you described the breakdown
of responsibilities at -- excuse me if I get the
name wrong -- I think it's Bio-Research Consultants,
your job function as opposed to Dr. Bernfeld's job
function was to get the funding?
A. That is true.
MR. ALDEN: I have no further questions.
MR. KLUGMAN: Let me just ask a couple more
questions I missed earlier, I'm sorry.
FURTHER CROSS EXAMINATION
BY MR. KLUGMAN:
Q. You testified earlier, as I understood it,
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that you applied to CTR for a grant for funding
after the termination of the contract funding we've
been discussing; did I get that right?
A. Yes, I think so.
Q. Can you estimate from the dates we've been
talking about when you sought that funding?
A. I didn't get that.
Q. When was that, in the mid-1970s, late
1970s, or some other time?
A. Mid-'70s.
Do you have a copy of that grant
application?
A. Oh, I think I do.
MR. KLUGMAN: That's something we'd like
very much to see, because maybe it's the way it's
filed or the name it's filed under, but we don't
seem to have a copy of it and I'd like very much to
see it.
That's it, thanks.
THE WITNESS: Can we go home?
MR. RANDLES: One more bit of housekeeping
and then I think we're done. We're going to attach
this as an exhibit, just the last exhibit to
formalize. And I apologize, I had to put
DORIS 0. WONGASSOCIATES
CTR t-IN 04221111
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145
handwriting on, but it's a letter summarizing the
documents we talked about today and which Dr.
Homburger has indicated he will look for and Dr.
Homburger has indicated he would try to bring in the
mornin
g.
(Document marked Homburger
ifi
ti
f
id
)
Exhibit 12
on
or
ent
ca
MR. KLUGMAN: I just asked about the
mid-'70s grant application for NCI. It's not in the
letter?
MR. RANDLES: It's on the record now.
MS. SCHNEIDER: The transcript will speak
for itself
.
MR. KLUGMAN:
We're not trying to
make
a
record here, we're trying to get a copy of the
documents. So if you could use that list.
MS. SCHNEIDER: We'll have a copy of the
transcript tonight.
MR. RANDLES: Let's go off the record.
(Di
i
ff
h d
scuss
on o
t
e recor
)
(Whereupon, at 4:07 p.m. the
deposition was concluded.)
DORIS O. WONG ASSOCIATES
c"rR NN 0421122.
146
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C E R T I F I C A T E
I, Freddy Homburger, M.D., do hereby certify
that I have read the foregoing transcript of my
testimony, and further certify that said transcript
is a true and accurate record of said testimony.
Dated at ---_------. this ---- day of .........
1997.
Sworn and subscribed to before me this ---- day
of ' 1997.
-------------
----------------
Notary Public
My commission expires:
DORIS O. WONG ASSOCIATES
L.r TP~'. { f f-'f 0422113
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COMMONWEALTH OF MASSACHUSETTS)
SUFFOLK, SS. )
I, Anne H. Bohan, Registered Diplomate Reporter
and Notary Public in and for the Commonwealth of
Massachusetts, do hereby certify that there came
before me on the 27th day of May, 1997 at 11:10
a.m., the person hereinbefore named, who was by me
duly sworn to testify to the truth and nothing but
the truth of his knowledge touching and concerning
the matters in controversy in this cause; that he
was thereupon examined upon his oath, and his
examination reduced to typewriting under my
direction; and that the deposition is a true record
of the testimony given by the witness.
I further certify that I am neither attorney or
counsel for, nor related to or employed by, any
attorney or counsel employed by the parties hereto
or financially interested in the action.
In witness whereof, I have hereunto set my hand
and affixed my notarial sea l)this 27th day of May,
1997.
My commission expires 1/17/2003
DORIS 0. WONG ASSOCIATES
CTR_ I-IN 0421 141
