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IN THE UNIT!:D STATES L•IS_~RICT COURT FOR THE WES-J'ERN D ISTRICT JF MISSOURI i.'ESTERN DliriSlO.*~ JOHN T. ROSS, Plain tiff, R -vs- PHILIP MORRIS COTMPANY, LTt7., a corporation, . Defendant. 11o. 9494 SUPPLEMENTAL TRANSCRIPT OF PROCEEDINGS RE DEPOSITIONS OF WITINIESSES: DR. KENNETH D. DEVINE DR. EDITH M. PARK}iILL VOL. 5-A T3I~:I:I'T. L. Fi\LI;Y Otf"IC~:~'. C•URl t3F7• --.:TER. CiViSION NO. 2 '~~ ~aS , y n. `In J~ : V 1_ rt 2-6068 I

I N D E X .r ... ... ..~ w Direct Cross Reclireet Recrow Depoaition ofs Dr. Kenneth D. Devir,e 579(2) 579(63) Dr. Edith N. i'al~khi11 579(224) gi79i2~'A) i~ X H I B I T 5 579(95 575(1e+) 579(222) 57~;:.'iv'1 Marked 579(111 579(210 579(291 Received .~ ....,r...,........_.. Defendant's Exhibit Kt 579(146) 579(146) ( Ylaintiff's Exhibit 49 579(233) 579(233) Plaintiff's Exhibit 50 57;(244) Plaintiff's Exhibit 51 579(250) 579(251)

SUPYLEhiEidTAL 'l'RA1dSCRxPT OF PROCEEDINGS of June 21 and 25, 1952 (See Volume 5, Page 579) MR. FIELD: (Reading) "In the United States District Court of the Western District of Missouri, Western Division. John T. Rosa, Plaintiff, versus Philip Morris & Company, Ltd., a corporation, defendant. "Appearances: Mr. Lyman Field and Mr. Charles Carr, of the law firm of Rogers, Field, Gentry & Jackson, Kansas City, Missouri, for the Plaintiff. "Mr. John W. Oliver, of the law firm of Caldwela, Eastin, Blackwell & Oliver, Kansas City, Missouri, and Mr. John V. Hewitt, of the law firm of Conboy, Hewitt, O'Brien & Boardman, New York, New York, and Mr. James C. Wilson, of the law firm of Watson, Ess, ;rarshall & Enogas, Kansas City, Missouri, for the defendant. "Deposition of Dr. Keraieth D. Devine, a witness of lawful age, taker, on behalf of the plaintiff in the above entitled cause, wherein John T, Ross is the plainti.ff,. and Philip Moa ris & Co., Ltd., a corporatioi~,

YT1s4 9 (!t~ that is correct, is it not? i--_---'--_`- ~ _ "AnSW,Rt Yes, sir. . vT' s' "~'~:~?IOh•s And, T)r. Dwines how long did y . ?eilowship with the ?'ayo ?ovndation last? ' y "AN^M= F`rom Jvlys 14'439 to Janvsryy 191+7. "^'n'Si'IU;ts l+nd as a pellov of the "ayo ':lin .~4.i. did you speciatize in any of t'~e ~,qny branc':es of medi- cine that are practiced here? "Ai' SUMRt N)-r Fe2lowship wRs cbnfined to the s' of diseases of the head and nc3ck. V(- call it hore n Fellowsl1p in plastio surgary. . "Q?^nsTXO?ds Dr. 3)Ovine, when 3id you beco.*.e a me-nber of the pe~anent staff of the 'fAyo Tnstitution? "Ai;sWRs 19'-+7s January the 1At. "QIIESi'213;'s And in what cs,pacity were you on the staff? "AfiSWrRs t,'e21 s if you want to know what ny duties wcr a-- I svspect thet i s w hat t??c q-mestAon mear,s? "c;;IS;TIO't't wells I nean what specialty, a certain department or division. "A,dSaERs tde called it then the departnent of Iaryncolovys orat r+nd plastie avrgery. ; ~ "MSa"xON .4n.d have fcsu contimel on the stAi'f; of the 'fP4yo Clinic ever since? 1~ ~~; ;bf~;Rs Yes. . v V v O

Vi1 s2 U p 5?9( ?) is the dofer.dant, •*- * pimsuant to thA r.ot3c3 hereto annexed and tho stipulations hfroinafter set fflrthw before 3ohn n. Carney, a notary public in nnd for the County of 61mRtedl State of T'fnnesotat at the Vxyo Clinic, '=.eyo ~3uildinQj rochester, !{1r_r_esotat on the 25th day of t'.Arch 1959•" T'o need to read the stipulation on the hospital rQCords -- MR. ?:QFtIYYs r%of no need for ts!at. '•iR. FIFLDs - 2 wi21 go f.hem directly to ?'age 4. MR. Hki?Ul's Inigyt ju~t state that Plaintiff's Exhibit 1 wQs the Vayo hospital rocords that were ident- ii'ied there. M PIMDs "Qi~F.STIC1? Oy Y,r. Field) s h'ould giva your full nano to the Court and 3vey, Dr. :hNvine "AFtS'.,nE'7ts Kenneth r,niel T"x-ne. school• "Q'SESTIA'1t Dr. Devins$ of %,,hf.t sahoo2x And coliegds are you a rrFltill$tA4 '' J'sAI ;;d::Rt Universi ty of lowa in 191+1 1 medi ca1 •' ;L~~ i ICR't And did yov also obtain your colleg ed>>cACi.on at that institution? "A`I'V-21?lS "o, X went to pre••-nndicAl sa?nool at the 1tate College, vo cr311 It r:m, of Totira!. q+- ameQ. '~ ~J :~,: ric~'~ ~ D ~ 0 0 4rA .yhen dl.d ymi obt ain yotjr ~ --- - -- - -v~ V ~

v rl sb i I ,79(6) nation•AidQ Qocieties dealing 14ith your specialty? "Afi1-4uRs Well # I wqx certified in 19514, by the Araerican Board of Plastic S')rgeryt An+: in 1;55 by the fu4ericmn Soaxd of S;:oiary:igoiagy. "^i1LS'c'ICNs And would yo-i o?cplain to the jury what otolaryngology i e? "A::!7Wi:R= 6°eZl9 it is ehiefly the study and care of dises.ses that deal with the earsq nose and throat "Q~1-?,5TIO;~'s A.hd` Poctorq from a viewpoint of nn xr,g it clear to the -Iar:~,ans to the jurors, the sig- nificance of your beine certified by the national hoardi would you give for the record a brief explanation of what these national boards arQ and what theX nean within the nedical profession in terna of standing and professional competence and so forth? K ANS'r:k:R= Well s all the certif icAtion r.g©ans is that the individual who has been certified h<3s studied vnder certain a.uspice3 for a certa-in Ier,gth of timei and he has presented himself to a group of specialists in the field and has been axa°Aned by them Pnd found to be qur,2ified to prac+:ico in tL,ie narticular field. "0,T5TIQ?i: And that cm.a*-;naticn! is t?hat con- ducted on a na.*.ior:uiso basis within the specialty by a national board? rl ~~l`it~i;Rt Yf's, It Is. -ob

Yr% 1a.5 0 a 5710} doctor had discovered t`at ?io had a cancer in his throat. He presented hir:self here for arn opinion Pbo1it how he night get well. "^DgSTIC~?s Did he mention thR nanis of the doctor in Kansas City? ".ANSWgRs YPs, Dr. John Knight, YAncas ^itpt Vissouri, who removed a bit of tissve fron his throat, and according to our records this was perfor^iod on ?Rbru- ary 9, 1952. This tt ssue was obtained and or.anined by our pathologist at t?:e C1inAc, and a diabmogis of cancer was madQ. " CUES i I C3: t Dr. Devin o, thi s Dr. John Kni ght that you r!entionodg is he Imown to you within the r.,edical profession7" l•'R. HATR1MJunt a*:omont. If the Court piease$ I object to that qveation for the same reasons given by ~ i;r. Piold in objecting to tz:y inqAring of Dr. Y,night i about other doctors. It i s not proper to have one doetor pass on the quslifications of e.r,other, as Irecaxl, 2iT? COURN Yes, I think thnt is xtQht. Objectio , :ustained. 4ft. FI1SaDs (Rea.Qi ng) ! Dnctor, when the pAfiient noss cR'ne to t?_:e Clinic thusq with this story and this hi.story, what Exa^~ination :,ras initially conductPd on tiin?

..._. ._.. _.__. ;.:~: .~.. . _ :~.. . 5?9(14) .. on it. .it. OLZV SR s Doctor, I t.a`-ce it when you Qay ' WQ' "'1 you arv describing «-? A tea-n of pcople, but I e-n eperil-i.ng of myself. ""~~~ . OLI'1::Rt You were personally present? "WITr:E.",.3"= Yes. " . bLIVSRs I thought you were, butI Ys,nted to be sure. "WZT;7sSSt Yes. n=S:'IO?;t hoctor, would you tRll the Court and Jury what you and tho tes.m) so--to-sporiks i'oiind when thi s vi sual exa^iination was conducted after he had boon 01 given an anesthetic? "A?:31r,R: WclLs we could sFe this cnncFr in his throat in a pe.rticulAr place in Ms throaa. It 1hy to the one side of the Mouth of t'1e swnllo*ving pipes and the nouth of the tirindpipe. You co,ald call it the voice box, if you like, or the laryn_X. It is in a particul.ar place in the throat that we call the pyriform sinus. r~. ~ PIOi?: And, Doctor, raforrine to that portion of the hospital record on tho big sheet" -- this boing }ho r lotov tat of it -- "and I a-i now roferring to I ' 11 what --z I , "_A?j~, T"Mi :'he t'.:vs ter '''hnet.

tiTTi 93 10 Degree? "A?y-IMERt 1941. i i "M,SiIQ11s rol3rn+ring your gradvarion framrt.hat I medic1l school s where did you hRve any NrtbQr p eriod of study, research or praetice k•ithin your profession? ."A'NVEF.s 'e11 ) let' s seop in 1941 I went to RcchestAr, Nc-w York for a two year IntArnship, from '41 to "+3. Yor'k. r' ~L~ESTIC~;4f At what institution? "A?:SWERs At Highland P:ospitals Ftochegter, 1'ev "~,,rp,SPInRs A:nd did you specializa in any bronch of the nedical profession or wR4 that fust an internship gon©rallq'1 "A`,Vr.Rs 'i''~e last year was spc;nt on A surCtoal residency. rr, "qT3ESixO1't And from that ingtitution where did yr,=s Co g Dr. Ucv ir, e? "Ahrstrio. At I entered the t'.ayro Fo'mdatSon on a FeXlowship in 191+3. "(jJ~: S','TiC?; s ".nd bqve you contirn)ed at the !•Tayo Clinic eL•er sirce, Dr. Devi,ne? "mn4m: Since 0431 without tnt,,~r7tispti on. "f4,'S".'"IT 'r 'nd we are ta'-e{ng t.his Aepr,si tion today here fn Toci~Pstcr, ''irncsc,+.at n.t +.het t 'a.:o ^1lnics

5^9C9> YLIs9 tr;etl, in Add.ition to :5o-ne rasia tests which uc like to get, nuch as a c`iesh x-ray .qnd blood test urinaZysis, ph;/sScal s?san.i,nat,ion, •aQ exa?ninPd, hi s*,hroat . by Mear;s of cirect larynCoscopy. This i.s n Mot?:od whore- by-we.,aro able Lo look into the throat with bright Lights: and at tr.is exa?dn3ti.on we saw Lho cancer In his ttiroat. "Q,Uf:S,cI4TT: Is that exanination one that you can do arhile Vio FcttiQnt 4.8 coilScZ ou:3f boctor? "A`: SN',R: It can be done either way. "QUns T'I0'Xt How was i*t done In this insLance? "A?tMdF.Aa In this inntance, he was put to sleep. "OU9S;X017i hnd wou],d you report to the Court and the iuryt raking xoferonae to any portions of tha hosnitAl record that you desire to, vlliat vas found when this visual exgninaticm wss conducted on Mr. Rosx after he had been given an anesthetic? "ANSUMI: 'First, I wotld like to say ti.is cancer was seen In the Clinic In the office wi.th the patient s+ ttinU in a c!~air ~ri th a little tiny *:irror. We wished to have hin come to the hospitat so that we could ma'ke a better cxamination, so we could doter-aine the ax}ont of it, the zize, so that we TnigY:t deaide wl:nthor this shou'td be operatod on or whether he s':ould rpcoivA coMQ o:her typa of traAtment, and so the exaninnaion congisted In t1:e nain of dcveriininU whett•sr or not w,? nho»td onnr-at;o

579(5) aI95 T "Q'39-3^I0?i= And s*.ill ronain in thet Rpeai.Rlty? 10 d "A'IS:JERa I believe that my work has bQen mors and more confined chiefly to the care of cancers of the mouth and throat, and less nnd less of the plastic recon- structivo vork. "INTRS TIC': s And for how nahy y ears have you been dealing with cancers of the mouth and t`hroaE here at the Yayo Clinic4 " A*;SWERs nince 1943. "WIR5Tz0;;: Since 1;1+39 that is consi,derAbly over a decade; would you cn.-Flnin to the Court and lury the relatiQ::ship that necescarily existsg if anyl bet4cen plastic curgery, which was part of your specia7.ty and ce-ncerg of the raouth and throat? "A`1:T4M: Well s rtany people cone to the Clinio who havo lfsfons$ car.eerss tutors, about the lipst faees r;outh, throat, voice box -- who require surgical treat- ment, and naturally we are intorostAd in resf.orinR fune- tion. We don' twant thcm to bQ deforn ed if we can possibly help itq e.nd therefore we believe that people Vhd do this particular kind of k{ork should be trAined in plastic surgery too$ which deale with the restoration of ~ ~ ~ i'unctxon. ''rl~iliIbtdt I see. Doctort would you tell the ~ Court and Jury the z,,3-i:bnrship t`:at ;,ro~i 'httvo in nny ~ V v

5"9(7) ",t`~s''T0,*•'s v'hat other ^icdical sxie.*.ios and grovps do yoii belong to$ T1r. pevine? "A?tSWS??s Well, I nm a-mcn'zber of the knerican Association of Plastic IfZurr©onsj the !•.merierin ',*oeiety of Plastic and Feconstrvetive ;i.>>rgtiryq the knerican College of Ntrgeongq the !Lnericnn SoeIety of 'lead and Noek Surgeons, the Anerican Acadeiy of rphthahotogy and Otolaryngologys and t, eMir.nAsota Rcadomy of c>phthalrology and Otolar;,rngology. "^U~3T70't: And, of course, 1oGtor, you aro licensed to praotics your profession by the atnte of ?'ftlnesota? "A1'SI'Ut Yea, sirr. "Q~.T~:S'~10~i: Doctors when did the plaintiff in tr.ig case fall u^dQr your care and observation, nnd 2 tell you that you rjay na'Ke reference to P1Rintiff' s r.chibit 29 the }-:ospitAl recOrda." I thir.k these are the rPcordg, Xo,ir I?onar. "At.SW::Rs I first saw .Yohn PoEs on ?-13-52. "^t~;STI.O;~= And will you tell tl:e Jury in your own langaage what that was in conr.e,,tion with and vlhat for? "ANVUZ: I'e aa•19 to the C1 inic cotiplRininE of a hoarsoness, throo woe'lm. duration, jIa a1so "en;ioned n sore tbroat, and he told us that in his homo city that the f -- - -- --- ------ -- - -- - - ----- - -- ------ ---- -- ---- ------- •-•--------- --- ~

a79(18) T2-mf2 Nox, the throat is a bie place, and we doctors.use the wo d pharynx inatoad of throat. It :hou1d be used that way tth~n you are talking to another doctor.. And this cancer was, technically, in this part of his pharynx -- hypopr.arynx. Hypo aeanm below. I don't know whether you want me to bother these folks with hypopharynx, nasal pharynx, and so on. "QUESTIJPit I don't think it xe necessary unless they desire that you go Snto it specifically. HoN extensive was the cancer that you actually observed, Doctor? "ANSKL~t This was exwmined by our js ath.o2og.at when it was taken to the laboratory iaroediately, and round to be 3 by 1.8 by .4 centimeters. "QUNSTIONs And how big would that be in inches ' II roughl.yt °ANSWHR= Let i s see, there are two point five centimeters in an inch, I think that is right -- I will answar that question by aayini, that -- as I might answer it to a paticnt, is that it is a big cancer, And I miEht tell him that it isn't how big it is, it is sort of liko a cinder in your eye, it is where it is that eounts. And he happened to have it in a place wheret it often sprraadu quickly and where our chances of curing them arest 't too uood. ~ F O N 0 CO ~ ~ ~ 0 I

579(21) Y J but in actual practice he doesn't Qxamin8 each and every than the voice box, "gtnr,TIOrat All right, one of these -- it is just not possible.-- there is not enouSh tiroo.in the day to do all of that Work, tie examinea the nodes that are slizhtly enlarsed or that seem hard to him, and he checks them under the roieroscope „QUESTI02tt And did you perform the total larynSectormy yourselP, Doctor? "ANS'r1ERt Yea. "QUES'rIONi And would you -teil the court and jury how raueh of the larynx was taken out -• is that the voice box? ~iMSV;Ecc= 'Wsll, tha larynt is the voice box. Ta this type of operation, it is far better to remove more "ANUMs There are certain muscles outside of this box -- certain bones that we ahould remove, S.f we going to do a bood operation, because the cancer may bAVe spread or grown out into thes© things. In other words, our object is to try to take out as much as we can and still make the patient a useful person -- try to curo him if we can, "QU'r;STt4Ns Did you then take out the whole voice box? nAPa=xx.:.~t Yes. ard -o N O x -4 LA ~ w

57?f 13? v•L Ls13 any nod4s, --' and I rKight interrupt ther9 and say that tl:at i s an important statement beca"se these nodes refor to so-catled glnnda or lyr;ph or 1•ymph nodes. These are structuras tn our neck %,rhic}i swexl +sp uhen -.te get a cold or.sore throat or tonsillitis. ThAy a.o there to I help us overcome infections that !iight got in our blood stream from some infection or condition in o»r throatst and we feel for those to sen if thtry e.r e en2nrQRd. If they are Enlarged t in th© presence of a caneQr in the throat, then we have to cons{der that they are onlarged because cnr.cQr is in those nodes or glandst and so if I can continue, I saidt ' I can not tcel any nodes,+ and Imerzn} signiff.cant nodes, 'but he should hadct radical neck --', and I did not put in the word 'disseetion'# because to any exper ienced person who might read this history you would know that I nean 'radical neck dirsec- tion' 9 which means an operation to rez?ove these lyrzph glands or lynph nodos -- and to eontinuet 'total laryn- gectony.' T3•.is mQAnx the co:iplete rcmoval of ttiQ voice boxg and t..tiis adjacent tissue we have been roferring to. "Wg: iIO1Ft lCowt Doctort after yo» had made that; I prell*iinary oxsr.anationt did you then determine to eheck that by this exr,Minatton under anes•`.hosia? "AN3'-dFMt Mis is an irportant disartosis 111o ma•jA in nnyono' s 1i fe, bec-xtiic wa arre refrrrtnigtn the patJent' P1

;79ti6a nlnetf-five perccntf even though •aQ coutcin• t feel it baforehgnd._ 'r n.r: ;Tzoa= May I interropt there; t3octor, vaa that 'i:xportnnt because you positivoly identii'ied the cancer as being in his --? "a*;S'V,1Rt We kne•d he had a cancer in the throa4:s but we hnve no way of 1mowing if hQ has cancer out in the "QUESTI^?:'s You mran rz}. that time? "Ai?Sk'RR 1 Xos. Ve didn' t knows nor do we have , a:nepic test= and we have to depend imon past statistics and our feeling of the patient' s neck. "QUEsixOtft All rigbt. "E,NOM-SSR: t,'e kmoW that this busineas of V h@ther or not the patient has a cancer 3n the glands Is the *3ost important part of it all. It is not difficult to cvre the thing on the inside. The way we lose our patients I and the reason that they are not cured ':as to do raora with; the glands in the neck than vhat is going on on the ir sid So when you f irst fit:irted operating on him --? "Ai;IS"V;Rt ilo thought that is the 3.,iportant thing there. We wiIl find out whether or not the glands are involved, or whether they should R11 be -re~±oved. ";'1-,Sj"IO!Is 73y ro-!ovn;d! yau r1ean cut t'n"r oxit? 'r ,1ti"SU1;T1t Yes.

5'71)(t5) okay for anesthesiui that hit; general p!:ysieRl exsc~~i~q» tion •elas not renarkablet that his heart 'ar.d lungs and abdonen were negas:ive, va took him to the V9r.hodt.ut Hospi ta1 and on the morning of Ye3ruar-/ ].5l 145?1 ve exaTined his throat. "QCJssTIGms Did you determino at t?uAt tine i that the cancer that yov four:d in thes area could be ronovod surgically? "ANSi,fERt Xes, , "qrE3PI0,qs When did you peraorm the operation to reTM.ovQ the cancer gnd remove his larynx? "!NSWERc Thia operation was -perf orn, caa on February 16, 1952, ".^MBST10:;; Would yola doscribe for the Court and jury the procedure involved in the operation? "MRSWERs The raedieal te". for the operntion is radical neck dissection, total larynrr_-.ctomy And pPrtial ph$ryngectony. " ytlE ~~TIO~'s knd could yoij summari se for the ^ourt and jury what the surgAry consistod of? " A ! Rt Well, th4 first part of the operationl consisted of retioving those odes and glr~r:ds on the 1Rft~ r patients 1.i`ke ,'.r. Ross, that the ahanaas of having a cancer in one or t'l:eae g14nds vas nbol't eighty to ~ side of the neck. We 'mov fron rtudying :I large group of

579(i4) vris1'4 ability to ape2'c again, ctr.d t.his is a serious diQenset and whether or not ho will even got a cure is always In doubt In this type of troubinl s.nd so wo wah}ed to axanina hin a little nore thoroughly than ve co>>Xd in the offiee. PherAfore, we put down this 'Firs} get 0. K. anesthosia' -- In othpr vords, if this patient a cRndidatt suitable for operation and is he a cAndidatQ for general -- ' anesthesia, and from there we go to wha*t you read here '5-uspension'. Now this is an appara :ijs or a ngthod of exanining the larynx a.nd the tt:roat. In essences f." rean tho suspending of the patient i'rom some ovorhead fixed. pt,ii,t -- y:,u can cali it a dPrricx zf fou Vant. rnie instrumant is placed In the throat in a proper nosit-ions y I and then he i s held that w„ -..y b f placing t_+is inst .runent o the der riak, and th~:ref ora t?~Q s?irgncrn can t?^en work with ~ both hands and ho doesn' t'-mvE to hold the head and throat up with one hand and try to work wih th the other. Sol therefore, that word In there called suspension might oon4~usa poopl.et but to is it means direct laryngoscopy, ~TG*:i All ripht. Then, Doctor, upon thAt procc,dure did you and the tean proceed to perforn this surgical oporation on hin2 "I`.:i'VERs Yes. .4t'ter iios3 was axn^tined In one of *,ho g^1Era1 redicRl sections by F)r. Xcating on Feb;u- ' ary 14, 1952, after Pr. Yen'•,itip said that tlits rsan stAs !

T2-mr4 579(20) "A,'~SnERt Actua3ly, it isni t.poesibie to do a good disaec.tion of the neck to rcrxove any possible cancer nodes, unless certain structures are removed. There is a large musole in the neck, there is the deep Jugular vein -- "QUESTIONs The deep Jugular vein i I "ANSwTR t Or thel internal jugular vein. "QUESTTONt Was that cut out and removed? "At+SwERs That is part of the standard complete neck dissection. "QUESTIONt And what about the left upper ji.ig7ular °r "AIvSMt Well, we divide these nodes or glands into deep Jugular veins, or deep Jugular E1andg, Vttint%r t_inan it~m~l aw. a1 anr4a . 7 n.re.,+ Aft.... i,...,.t e.. -t...,A..v "'~ that is a method of doterminins where they are aAd it means soaething to another doctor il hQ knew we removed the upper deep Jugulars or the lower deep Jugulars. "QUESTrOfdt And how many were removed in this case? pAN3',rfERt well, if a pathologist -- that is a man who looks at this thing in the laboratory -- wanted to ait down and count all of thQ glands reraoved, he might -count upward of one hundred fifty.to two hundred Elanda,

579(23) and all patients like him -- have a permanent opening just above their eollar.bone3n the center of their neck through which they breathe, "QUESTIONs Do I understand you, then, Doator, that this mants windpipe doesn't go up into his mouth and his nose any moro? "ANSWEt t ho.. "QUESfiZOae And it aomes out inside of his neck? '"ANSWERt YeO. "QUESTIONs So when he breathes, ho doesn't breathe through his nose or roouth, he breathes through the hole In his neck, is that correct? "ANSwERt Ye$. "QV 1014t Doc tor, how long did this operation take? "ANSTOMfFrom 9135 in the Yrorning until 1 s 14 the afternoon. The anesthesia was started at 9s10. "QUESTIONs And the operation started at 9:35? ~ "ANSwF:R t Yen. "QUESTIONs And the operation finished at 1t10? "Arasc-rERs Yes. "QUESTIONs Dootor, would you tell the jury . • . - -- . -. -o what squanous cell' epitho.lioma means? " N O m peclail3 u`+ Tho lf.n tngs of our bidys r.4 es - -- ~ ~

579(22) "C~UE;;TIONs Did you take ` out any tissues an structurea adjacent to it? "ANS:aERsWell., yes. 'You are probably asking me about this word pharynx again. This is a part of our swallowing pipe i n that reg,ion, and that r.Md to be ra• moved to get arourz3the eancer. That, of course, ls sewn up when we are through so the patient can swallow again in a noraal faahian. "QUESTZONs Doctor, does that procedure involve what is listed -- I note it is listed here as a tracteoto is that what you are talking about? "AN5WLRt Well, in removing the voice box or the larynx, we are actually removing a valve box, and the valve box is a box that sits at the top of our wind- v1Ahs eha •rna. i.n11 41....r ....wS .~~ w..~ w.~ • a__ ~- +.-jr.r w..~ rvv. VY~4 v.~cw ~wKj. 1ojVD, i4~1~ L.iibnKlf t~L they are there to talk with. They are not there to talk with at all, they are to close oft our windpipe when we swallow, and if we don't have those valves in that valve box, then every time we swallow it goes dom our wind- pipo, we choke and we atrangle, and we die, and so if we remove this valve box wo have got to do soraething about the patient t s windpipe, We muotn 't have it in his throat or everything that he swallows will go down his lungs, and the only way we -cAn do that is. Set the windpipe so that S.t comc3 out onto the rikin, anct the ra this patient -- y, J V %0 r-

57`1(12) Yx1s12 .. I of the :7outh of th© sNallowina pipe. In other vrords, extrinsic, Just outside2 and Just o11ts1de of the voicA box, it you want to call it. It is sort of like a 'Y' in the road. It lay right at the interseetion. Fie attempted to telt ne how big he thought it vas, 1.5 centi notersp and hQ had the right side, he had iF, on tre lQft side. ?ie wssn't quite certain just ahero it was. I think to any pergon of experience rather than use all of these words we simply would say this nan hgd a cancer {n the left pyriform fossa or the pyriform Rinusf and those are the words whach rlisFd in my history. "QUMESTI4Nt And under yolar entry rade -- is tha the one r+adg further do•-rn on the page? "kN:3:JERs Yes. "QU:3iIoF+s Under date of 2-13-5?? "Af?SWERs Yes, air. "aU:.STICNt Woiald you please read trat into the record for the Co:irt and the jury? "APt~>WF.at ' Catticinor-sa of the left pyriform fossa ---I. "WF.5TI0Nt If I may interrupt, wha*, does car- cinon:a mean, rwycstor? f/ ~~R'JSIi.'~t~ Cancer. ";I?"P.S ~ Ini1 t All rf bht. (continuing) ~ but I cq.n not PPA1

I'2-mt'10 579(26) our ctira for the first time on 3-1~52. "QUESTIOti t That would be the first of March? "A?dSWlMs Risht. He came here on February i'AtW. 1952. He returned for a check up as advised on 5-10-52, at w:iich time we could find no recurrence. I see in the record where we gave hiro a card to see Mr. Halstad about another mechanical voice box. The patient ia, $using an elvctrie voice box nox.' The patient was dismissed again on that very same day. He returned agAin for a check up :.ra q-2-52. "QURSTIONs And what did you find upon that check up, Dr. Devine? "ANSVMs 1r?ell, I didn s t see or feel any re- eurr©nee, but the patient pointed out a tender lump in the lAft nP4k about the middle of hi s r.ec?t, s±hich I described as probably an amputation neuroaa. Now in this operation on the side of the neck and the glands of the neck, certain nerves are cutj these nerves have to do trith the feeling; on the side of our neek, and also the movcment of certain mucoles about the shoulders, and when nerves are cut across a lump sometiees forms at the end of the eut nerve, and we call it an ampi.itation neuroma. I thouZht that is wh,at this little tehdor-Dump- was. I asked another suxgeon to CcQ him, and he agr6ed.- He aaid, #z don ''t think we need to biopsy this or do ~ ~ ~ m

57904) T2-taPl4 testir:.ony of Dr, hevlno would show'and that it is taer•i- toriou3 and pertinent that at the time the as3n was at ' ,, the n79_n_1te they ~ ,iir~ not v * nnc ur ata _renorAA wi_th respect to past smoking and his experience over the years and that all they got was a record of what he was pre©ontly emoktn;, and that since that time they have realized they should not only get what they wera presentl; smoking but also what their past smoking was, so I o ffer to prove by this answer that all this entry shows ar~d refle-;ts is what the man's then present woking habits were, and I think that the plaintiff has testified that that is what he meant when he gave them that ansmar, and I think this supports the plaintiff and would rein- force what he said that that ia all that their records at UNat time ten ded to e3ic:.t, what his habits Msre on that day, and not what his past smo?dng habits were. Of course, it is hearsay, but it concerns a hearsay quention, a thing that was asked him, and would be part of th3 res gestae surrounding thisj therefore, I specifically offer to prove the rollowing language on that subject frad the answgri rrV:Si16vNf Now, is tni8 tilr3 foi'iti that you are usina now in thescr cases, Dr. bevine? "AhSVER s Well, unfortunately it" is;""- I-say fur.Portur,-a;ely' baonurio we have fol.ind out that lookind ~ 0 m \ ~ ~ N

5179(lZ) "rt~: I'['I0?ts ?he t~astor ^1:_e-et, cRlled Yaster Sheet o.nd Ger.eral Historys on tro revarse side tf.9rczof? "AIIS`aERt Yes. "0"SSTICN.= Under i hyuical Exa~ination, about half way do.m the page? "AII~ M.Rs Yes. "!?ttESTIOas I read the followir.r from p1ain- tiff' s:.`xhibit 29 which I or.ea again state for the *record the plaintiff offers in crvidenceg ' Lnrynx - 165 centi- meters, globular bluish extrinsic tumor apparently arisin from po3tarior left ventricular band or highAr up. There i3 ulceration nnd 4rythema laterally where 8ttaehed* Laft cord appears slightly 2iTni ted in rrotion. Rost of exa-:dnRtion n-lCativo except superficial +.ilcgrations hard palate.' Stvald you expllin And translate that some°&.at into a little mora l.ay language so its meaninP , could be ne.de clear to the Jury? "AWITWERs In the first place, this vas written by one of our ?ellows, we call thPn heret people here to learn and study, iLnd this i.s one of our methods of ehackinR up on hov well he is doing# and x3:ethRr his examinatS.on matches vi th what we see, and so 3:e said tt+a*.', i he saw a rojanded cve17.ing, and he gaict it was sli~htly bluish in color. T'.o usod the vor-d ' extrinsic' $ and thAt wns his -nathod or his wot•d to moan that i: lsy J»s' ontsidyl i i

579(17) aqUESTI4A` s Then what was done next, Doc torT "ANSWiRs Wall, then the next- part of the oper- ation conaisted oP rem-aving the cancer inside his throat. Now, the throat is a big place, and we doctors use the word pharynx inatead of throat. "ANS`~Ms It should be used that way --" MR. HARM Just a eo.oment, you aaid, "Question You didn't mean "question," M.R, FLF:LD.: Thank you, KR, HItRDSt: TMis ist yil.1 part of the answer, MR. FIELD: Thank you, David. "Quiis:11I0iit The next part of the operation --" MR, HmYs Mr. Fie2d, would you please exouae ! You didn't read all of the doctor's an$wer. You Qaid, '~~.~,p8vlon: It should bes I ;wnu1d_ 1!_kA fn_r, you to read his whole answer, KR, pIELDs I was starting back to read the xho e thing again, Judge. A4R, HARDYa I beg your pardon, 14R. FIELD: (Reading) "QUESTION: Well, then, the next part of the operation -- Iwant to read the whole thing, I want to read everything that ia in here, "Al1SrWtt Well, than, the next part of the oper ' o N O af >lot3 c;Odls~.3~.ed Cyl t'e'uc3VIi1n IilC'_ C:~3iwc~ ~s'd~3 ::a°v tt. , o~ v t!+ ~. ~

579(24) T2-mf8 our skin and our thsoat, are made up bf cells called epJ:thelial cells. They are laid down one upon another somewhat like pavement blocks, and I believe the word squamous means just that, laid out in pavement fashion. That is where the word squamous comes in there. Cela, I think you know what that comes from. Epithelial is the doctor's word for a cancer or a malignant growth that starts in these cells. The cell may be in our stomach or bowel --" MR. HARDYt You left out the "lining cell." MR. FIELDs Thank you. "The lining cell may be in'our stomach or bowel, or anywhere where he have an epithelial lining. "QUESTIO:Jt And is it then accurate to descr ibe that as t::e cuter li:.inb of the particular organ involvedY "ANSWERt Or inner lining. It is a lining that faces into a cavity, or into the throat or the windpipe -- into the aouth, or inside your stodaeh, "QUESTION: Now, Doctor, after the nodes were eut out, the voice box was removed, the larynx, the surrounding strucstures to the extent that they were re- movea and hin wir.d-jDe was transferred from his mouth by operation so that it ea*ae out his- neck -- aPter that oparatton was coim;oletsd, what was next done with hLmY

5T9(28) Mastor Sheet and General History, with respect to the entry, iTobacco,' there is the entry,, 'letfrs ths.ncne package of cxgaraLtes per day', is that an entry that you made? "ANSWER t No. "qUESixONt iiow, is this the form that you are using now in these oases, Dr. Devino?" MR. HAR.DY: Just a v*aQnt KR s FIELD= "ANSWERt Well --" 14R. HODYt Just a mom6nt, it the Court please, the first sentence of the answer I have no objection to. With regard to the balance of the answer, Iwiah to ob- jeet for the reason that it constitutes Dr. Devine's apoculation and conic~cture about what tei;;ht have been done by the person who took the higtory, It constitutes heaxgay, speculation and a conclusion as to the history taking. MR. FIhLDs Judge Gxbson, it goea to explain part of the res gestae, the circumstances or this entry, that is all, - THE COUR?t Let me read the answer first. MR. HARDY t I want to add, it is unresporisive. to the quostion, except the first .sentenae.- TfiE' CQUftTt It is not part of the hospital

579(19) "QUESWXO?it And Khat was the actual finding of t ha pathologist that examined the rem:oired tissue with ' respect to his larynx? pANSWMs He found an ulcerating Grade 3 squamous cell epithelioma, involving the left pyriform fossa. Now I might say that the Grade 3ia our method or means of telling another doctor how aalignant the growth is. I might put It a different t*ray, It ie sort of like the cat faiaily. The oat family has the kitty cat, the bob cat, the ti6er,and the lion. You take care of a kitty cat different than you do a lion. You would rather have alUtty eat under yor~ bed thar. a lion, He didn't have a kltty cat and ho didn't h$,ve a bob cat, he had a tiger in his throat. That ie what Grade 3 meana to us. Actually, the pathologist determines that by looking at the cells under the microscope, how many o!' them are abnormal. if he sces only one or two, It might be a grade one. It in his field he sdesmny, it would be a grade four, So that this was a highly malignant cancer that he had in his throat. Malignant means its ability to spread, how often does It spread, "QUFSrIOrt: Doctor, was It necessary to exeise or dissect or cut away any of the surrounding structures to get at_ thFsP nodea in the firnt inatance and altso to take iiis ia:byrx out totally in thA second instanceY

C2-Mf 1T . ~ 1 57903) and epeculatin , about thQir 'record; AiR. f1ARJJYs The plaintiff teutified s.bout hi© sdokinsc h3lbit9, TiiE C4UM He testified how many paok8 he smoked and that is in evidenoe, !•iR. HARDY t That is right, MR. FIELDt But I simply want that in the record in view of what I believe to be the argument the defense will make at a later ctate. MR. HJthYt xf the Court please, bafore read- ing of the deposition is resumed, I would like to obJeot to the remainder of the interrogation, the.last question on Page 30, and the firat question on Page 31, on the sa-me erounds stated, sinply a follow-up. MR. FIELOt WQ11, Jud,ge, that isn't MR. H.A.F.DY: For the ao-me reason. MR. FIELDi Well, Judge •• (knereupon, thA follow ~-~ proceedt r~t h•cra had i.n the presence BUT OUT OQ THB NTXiIicG 0F TtE JURYs MR. FZEhDt Well, Judze -- doee the Court -- MR. ;tAF.DY: Let me atate my objection fi.rst. The last question on Page 30, Ydur Hon4r, which 3e:a _ folloyr-up of this speculation -gnd cbn,jecture -that _ I. hdve - just objcoted to. "quastiqns A.% of tne time he took

57904) r2-mrI8 the hiatory," ar,d the answer,~"Arisiourt'~` Thet is aa of that day; that ia all you-ean.do is take that history for what it ;_s worth," ' The next question on the next page s MR. FIELDs I submit that top quQation and answer is perfeetly proper. MR. HARDY: Let me make my objectiont "Questio The entry do8a not then, as far as you can eee 1`rom your examination of the record and from your knowledge of the manner in which these examinations were oonducted at that tirao, purport to indicate how much he had been smokirZ in the.years pravious, is that correct?" Nox, I object to that for the reason previously stated, and for the further reason, it Your Honor please, for the additional reeson on this, that an to what the re4ord shows, the record itself, which is in evidence, is the best evidanco, and not Dr. v©vine+a interpretation of what the record purports to shox. MR. FI.ELDt Judge Oibson m TH3 G4CrRTs Wait a minute. I think definitely this last gart of Pa.r,e 30 la in line with the overt rQspJnEQ made to the question on Line 30, and is definitely in tho same category as tho other question_ `_ __ on Page 30. NoN, as_ to Paze 3a, xhich is: a question ~= ==- cor.car;;i:ii, the entry itsalf ~- _ t N O .: ~ 0 a

_ _ >... ._ . - - . _ _,. .. . :~ 579(36) T?-mf20 ; in an area where he did not hint3elP conduct tho interro- gation, for,all of the reasona stated in the next . Y: e:3oKy VMiCV VLV,., iii'v:.ii~i%;ig+i:a''caj~, 4~iiCs tact that he wasn't presont, that the record speaks for itsolf, his interprEtation of what it purports to indicate is clearly incompetFnt and prejudicial. ?Sit f.'T:.'T^a R~tt au t.hs+ f`niSr'E _noint[i [a1~4:_ thj* g .«. i • r......... a~..v r.. the vv... ~- ~• is an explar,ation of the manner J.r, which the dootor used the entry and what the entry meant to him. THE COURT: The objection 3.s overruled. I t -4 01 0 m

T2-mf15 .i U .1 579(31) in our p3st triiatoities that a's Pe believe today, that not enough attention was raade-to get an accurat history re~arding ihis buainesa of Rennkina: A rut T know from experience that patients might come who have been smoking and have been 5moking for years, but they Qight have stopped Just a year beforQ thoy' cane here, and if the fellow said, #Do you scaoke? $, and he said, 'No, l then It went in on our recor4 as smoking, no. And, thereforep we are making a much nore serious attempt now days to try to find out just what the smoking habltd might have been, All I can ssy is that as of that day Mr. Rose told Dr. Friedman, who took this history, that he was smokin,g less than a package of cigarettea per day." And that would egtab3ish that that was the practice and method of keeping reeorde at that t3.me and that that is all that the record purported to show, and I offer to havo that read to the jury on a very vital issue in the plaintifft cas©. MR. HARDY t I want to point out that defense has made no obJeetion to th© question that- waA retad, nor to the portion of the ans:rer, "Well, unfortunately, it xs which is all that ia reaponsive to the question, snd* - that our objection for the Erounds previously atated, it irs not xeaponsi.ve and oa11s for speculation and con3t:ntur M _J 0% 0 w .,

579(25) "AN~=ti~:R s Well, -~au want to know exactly where ="he went from the operating room:' He went to the anesthee recovery room whero the patients are observed for an hour or two until they awake, and then he was taken doxn- staira to his room in the hospita-l. "qUESTI02Js And then what course did his 8tay. i at th4 hospital here take with respect to teAching h3.a or trying to rehabilitate him or so that he ;'ould breathe and perha;,-•s even attempt to talk without any artifici.ai devioes?" devioes." M8, HARDYs ExousB rne, "with any artificial M. FIEL,Ds "With any artificial deviees. "AIIBMt Well,i these peoplQ, of course, ar4 ..MVf.+..w 4~w 1......~.. ti+w.a •i. t-w1L w..w+.+ l+~w......w, prYl~vYO vv ivw ss aww Vv vwi.A Q~a1.sa ww4tM/.7p av rew-oved their vocal cords or their voice box, and there ; are two ways to talk again. There ia a record here saying that the pati.ent was g3.von a aard'to see Xr. -; Halatad of our physics 'dEpnrtment to: get a meehanical voice box. a %USTIOfts And referring to the hospital reeorHa, would you tell thar court and jury •- Living the dates, the couroe= that= his- subsEqu"ent- - oaro at -the r'L~yo Clinic took in that reepectt .VeXl, the patl.ont t180 `diQatii.ssa0 from ~ 0 N 0 00 .c J

579(29) T2 ;mt13 f , 0 reeord, itaelP, or the iiibtory as contained in tho hos- p3.tal recor.d._.I think it is hearsay, it is not part i.h..ne ino±-Itti.~.-t - ::j aS:d the ob" jection will be austained. M. PIELDs. Well, Judge, i.t goes to show the c ircumsttxnces under which the entry was made of a pack a day or less than a pack.a day. THE COMTt Well, it is Just speculation, MR. FnLDs No, tho doctor is testit'y3ng from knowledge and from what he says how thby kept their records at that tiaae and it explains to the Jury how their records were kept and how thcy reeo&nized that these things occur and how they changed their record keeping, and I think the Jury should know that, aa part of the res gestae ouri-:.unding. THB COURTs It is certainly not aubstantive evidence of any facts he states in here. It is Just speculation on the record. Now, the only reason the record is introduced is because of the exception to the hearsay rule that allows introduction of records, MR. FISM: I would like to make a.n, oPPer of proof. I oPPar to prove as part of the pla3.ntif. +a ccase the cnanner in which the records were kept with respQOt ~ to questioning about amoking habits at the-time he Was, there at the if.ayo Clinie, and I offer to prove that the ( LA ~ 0 CO ~ 0 ~

579(32) T2-znr16 and hearsay. The_same objection 1o bade to the olfer of proof as was made to the oriG4 nal: " a'r~ wiina i 7i'ne orPer is reius8a and the objec~ tion 3.e sustained. HR. FIELDi I would like to say to the Court that I verily believe that when the defense counsel argue this case, they will attempt to argue and try to tell the jury that what this record means where it says, "a,moki.na l©oa t hami one pack a day, " that that means the plaintiff -- actually, that that is all he did aaoke, that he never was a tro-pack-a-day-&noker. THE COUI'cx: I donti think it means that at all. DiR, FIEi.Di I am certain it doesr&, either, but I am saying to the Court that counsel ia F,oing to argue that, and ahen he does, in view of the Court's sustaining this objcttion, I think it would be compound -a it would be terribly er: oneous and impropzr, and I want to now get that in the record, beoaus® the reason counsel wants to keep this out is so he can argue to the jury that that indicates that is all that Rosa ever smoked, THE CGURTt Whatever the doctor says here in answer to this-question is not substantive evidence _ on thb sooking habits of the plaintiff. He knows nothing about the Baoking habits of the plaintiP.f," he 0 didcilt 8vtn question thu p1p.l.ntit't, tia is fust talking I OD ~ --- c~ 0 ~

579(32) and hearsay. The same objection Is bade to the offer of proof as was made to the original.- : ri~ CGvna ~ tion Is sustained. a-ne offer is refus8d and tho objec-~ HR. gIELDs I would like to say to the Court that I verily believo that when the defense counsel argue this ease, they will attempt to argue and try to tell the jury that what this record Qeans where it says, "€Moking losa than one pack a day, " that that means the plaintiff -- actually, that that Is all he did aasoke, that he never was a tro-pack-a-day-&Moker. THE COU1'cTs I donti think it means that at all. OIR. FIEhDI I am certain it doesrft, either, but I am saying to the Court that counsel is Eoing to argue that, and w)-len he does, in view of the Court ls sustaining this objeo tion, I think it would be compound - it would be terribly erroneous and i.propzr, and I want to now gQt that in the record, beoause the reason counsel wants to keep this out is so he can arort:e to tt* jury that that indicates that is all that Rosa Qver smoked, s THE CGURTs Whatever the doctor says here in answer to this-question Is not substantive evidence - on th® suoking habits of the plaintiff. tIe knows ~-~- nothing about the eQoking hmbits ot' the platntiiPf', didcalt evon question thu plAintii'f. Ha Is Just tal.king O GD ~ ~ 0 c

an apper:d 3etor:y, yas confined' to the` hospital about ten days. -. Assuic© _further that Ross attended the publi4 sohools, going through the prlmRry grades-and high school In Kansaa City, I4iasouri; that that was hia environment; that after he graduated from high school he attended a businQas eollege one yea.r) that all during his school life he was regular in nttendance, that upon leaving busi..ness college he worked for a cash and door oowpany of whioh his father was president, as a clerkp doing clerical and aceounting work in the ofrieej that in 1925 he vent to work for the Security Metal Products Company in Y•ansaa City, Flaaouri, Vhich manufacturod fabricated metal produetg, but that he worked there in the office as a clerk; that in 1926 he has employed by the Dorsey Company: selling securit3,es, worked there until about 1931 or 132, went to work for another corApany sellin,, securities as a salesr3an, and that in 1934 he went to work for the Br3tter Business Bureau of Kansas City, ,Uaso,.wi, and has been employed by the Botter Business Bureau ever sin.cej that the nature of his work before this cancer and the removal of his lary= was that of extension aork, doing public relations,_ securing now Lenbr:rs, raking talks before varioue as3oaiationa and business Sroups; I want you 111i, 1 N to Dc,:;tor, that in r.cn e of his work duri.ng hi.s ~°

5?9(3g) r3-2w ; >. Iat, rttRDYi ` Just -a -c:omoint, -the next tduectxon and the first ser,tence of the ansWer Waa admittEtd in _ -- avidence, so for -eontext, go ahead ana- read it. M, FITL.Ds I am going to go back because I dor.'t want this brolten up. "QUESTMI: Well, I notice at oneMe on Plaintiff's Exhibit 2, indQed ori the firat page' under k,acter :;hvet uid Ge:reral Hiotory, with r-uspect to tso entry 'Tobaaao', therQ is the entry, $less than onb pa-ckago of oigax-ettes per dayM, is that an entry that you mads! "A2a:,~'t s No. "QUI3,~TZOHs No-r+ is t:^.i$ the form that yau ~ uaing now in thesd caces, Dr. Devine? . ",4t3nni tioXl, unfortunatoly it ies , "QL~IOh s'j•he entry does not then, as tar as you can see frM your e-x&Lmjnalaon of the record and from your kno,4lcd,3* or the nwu-ser 3.n E,hich these examirations wero conductod at that tir-e, purport to indicat,e how p:civ'lh ita rri'v uC-~is SifiJkiiZ in th : years pY'CvSoLtso' Is that 4orreet? 3Zat at all. You can we it doesntt even tell us long ho has Yr:3n smokl.ng. t "QU-MMt i All rieit. - ,Doc,tor, ..Y belSetree eariiwr in the deposition you roalted what conditions N O

uitli reGard to tha desaription: -; Ho~iever, theso other ~;roundtt, I.wlll atart at'e the faat`e hypothesized, first* nn nagQ 33= wherrA M.r, riQid started readirig, the first assuraption was that he had only been married twice, and this goea to the basic point, Your Honor, of the type of individual involved in this case as to the stability, it goes to the poinz ar ~ihsther or noy ona p©roon is more inalined to age facter and have thie disease, and therQfore is an inpordant part, although taken singly the objections Zria:ye r:*;r not e4nstxtute terribly vital facts, tEken collectively they dd, Now we will start off,, The question firat hypothesizes that h© hee been mrri©d twice, the first tir~s in 1925, and the seaond tiruta in 19tb5, No,a of course the evidencQ is that the plaintirP wap first warrSQd to Iiazel Ragina i.onehan in t:arch of1921 which Endod in divo.-We in SeptembQr 1926. He had a daughter by Oeraldino Asorria in February 1q25, That his second mmarriagt3 was to t3ernldino Morris in Febr uary 1927j and that this marri$Se ended in divorce in 1932,# whoreas the question hypothesized tho death of the fir3t wife in 1929. . . ~:., . f3.raC r4rringe, dAUghter -ti8s born to tha second-wl f©, o hypothoaizes the i'aat that tho daughter was -born of th6 ~ " vecon-i wtfe did not die in 1923, and there were three m V o~

.579(39) r3-'-Rar had been when ha first ear.Q in, hi6- Cauplaints about hoarcenecs und havirig boan cxerAned tnd- so forwh, ~ now I want to -~&sk you $:hypotiriQtical question, on the tacta of John Roas's caca, that will requi.re you to asuu~e certain i'actd-aa true, facts which will be testifiad to in evidenae by the plaintiff fmm his p,„evioua life, z, therefore, aak you to assume that the plaintiff P in thi4 oaGes John T: posss was born on hovorber 20, 1699, ar.d is naa fiftywn.tna yea.-+e of egoj that he has been iaarrie4 twice, firat in 1925 and the second tir~e i.n X945= that of the first marriage one child, a daug~-,ter, was born„ and that this child ie now livf.ngo is a mFxried uo:vn and is in good r,ea.lthj to further aasum--c triwt hia firat aife died in 1928; that from 1928 until 1945 Kr. Ross was single and tmumn•1.cd+ i, and that Mr. Roas has lived with his second wife froai the tir•.e of thair mrr iage In Janue.ry of 1945 to and continuin,g up to th© prQaent timj that from that mr;-ri.aga f cur children have bea1 born, and that thoir rospactlve agas at this tir~fe are twelv© yeara, ten gearn= eight years and five yaara, and that they are all in gaod `• health, Zwant you to further asauae that 241r. Rosa's father died at the ago of 64, " +iia mother died at ..~ the age of 741 that both hxa fathar and mothcr were in ~~Ln good hes.Xth a11 during their rdspectivd livQs. That ° I ..._:~, ~ ~ ~

579(35) ?2-mt19 ~ Aift. FLELD t Judge, the anc lont, aSe-old doc trinb that the record apeaka for itselt ia-no-i.ronelad rulo, ?4iriwvs J,._ ;~or V v~.y be Q+ven aid a*:d asst saa.n.ce as to what a record attempts and purports to show, and this is specifically aimed at thnt, and surely the jury should be givcn that guidance and be permitted that assiatanoe. THEE COURTs b!eli, this is a litt2© diftarent e ategory on the other que$tion. It is a question con- c erning m MR. HARUYs That the record purports to indieat©, and the record speaks for itselt, and it is here in evi.denae, T' + COURTs -It is indicating his -- what be 6ains from reading that record. It is his interpret8tion .-U~. M/~AAMI• ~•P VsW • iS%rVi Vl, Mx. FzET ni xes. MR. HARDY s Yes. TfiE COURTt So I think that probably should be admitted. MR. HARDY: For the first question on Yage 31, I want the record to show clearly, i.n case I haven't made it clear betore, that the sround ot my ob,eation there ie that the record, apec.k3 for itaelt, and ie ": prejudicial to the dztYendant tor the iloet'or -to._ give_',=~ .-~ his intirpretarion of w:-sat the record purportu to 1i,6i':at tb 0

57903) that ho haa-'used aacotiol In his lxf~~ir.~o only in m:~vrato avounts. Assur.:Q nlGO, ,Y1r.^ Pevir:e, that duxf.ng the period of hbout ~'ive yQara"before 1951 ho vent to his family doctor at vsriotts Waa to be treated for cold3, throat imitatSons; tr~t tha far.3ly doctor gov© hir palli.ative treatrent conaictIng of gpraying the throat anu nedicines that thCreupon h.ie throat would soora to get betterf that tho last t3.me h4 taw this fanily doctor t-.= In August of l,451, at khi.ah timo he tiae troubled with a core tr.roat) thet rhe farail,q doctor diagnonod the conditon ag a}glanduXar 3.ntlea- --tion eprayed the throat, end gave hira a heat treatwant t,wioo for the irritaticn, but e.ssuMe, that th© fardly doctor did not over p--rPc~ any biopsy or siagnosa the aon- ditian as serious or t*ecommend or g.i.va any furth°r treatment. Aname that the xrritation of P:r. Roasts thro:.:t did not got better a.rter going to the faviily dootor, In h ~~t of 1y51, but i.nstead it beaan:e worsa= that Ross bo ;an uetrolopinB dif f:.culty of evallowing r,na soi.io difficulty of eatingj th-at hiv voiae or$aw and latcr boeane husky, end tassu•_no that ho doveloped the taoarsone3s that waa noted In the hospital reeorda that you tootified to hore todayj that he vant_to an eyQ, ear, noao and thront apt~ef.t+l:t at in Kaneab .C.i.Ly:: _~.. _,. r.bout four tir,o 3 in the faxl of 1951 end January of 152 j ~ ~ ~ ~

579(4C) I 4w ( , tho : ather c1i Q3 'oP ~i utro!c4 `e:id thati= tho mothor di ed of a hezu-t attack duo to high blood prass1.xros that the childran born' of- tho r,arriogo of ?to. fios3's fnther and r.:other, tNo othe» childr en, of the :-a sister is bot,t living and rrarried, she is ti:'ty»t:^.r 3e yeara o: ase and is In good healthf that a broth©r uas also born oP tho rArriage, tho died in 1935 of uremS.c po2.aoning CEtU6C;Gi by a }S-Z.~.iT` ~H~'`~H~' fi~..~lL~t3~i~i.j iiv'a.tiirY' i:}:v rathc;' nor the mother nor t1le brotiher or t":r. Ross died of csnCCr+ and that there 3.$ no hiutory ot' eanoer in ly'r. Ross'n t"ly other than the cancer oP the throat end larynx that Y%cr. Roea hf:aselt has expcrrl.er.oed as you have testified to, Iwant you to ftrther asaum* that the plaintiff Ro:,s an a boy was a health;,r lad, a,nd va3 never aeriously illi that as a boy ho broke hi* lePt arm above tho wrxst when he tiias about six years old.. and that tho urm wae set by a doctor in his office, but that he waa never confined to a hocpttal as a boy except when he wae born or when nic mowr.er Has eorSined, ianuuT:w iii`viii:i- ~isc'~t c'Io ai~ &uu,4~,v~ plti'siit;fi ~'0o03 has expor #.eneed no sariou.A organie diaQaso other than the cancer of the throat and larynx hQreinafter more particularly de.ncribec4 in this quostion, except that I in 1948 he had an rpparr3lcitii o anra -Nas tacen to . tho _. ~, N hospital in Ktnsau City, I-tiasouri whQro he expar. iotlcoj 0 CD J ~ .. N

: 57907) r~a.~riagoo ir~;tead -of two,l- 7hQ quootion hypotYiesizi©a that the plaintiff i'JMe i.i ... __.,. _ .. . seriously i21 and undor- takea to and does racite that he broKo his a.m when he was six years old, cet by a doctor at his offic©, $.rd o-its all of the pertiiiont medical data that "ae • testified to by the plaintiff with regard to hia inedical history as a csh3.ld, that ho had the usual ron of all the c2iildhood disoasos, inoluriing a nuriber of those involv9.ng varusels. Nowt, whiae thia purportg to relate the plaintiff's chilc%nod medical history it completely omits any diseases and only wnt3.ons a broken am Nexti, hypothaslzea that plaintiff as an adult ~ w~.w 3flM * !~ S1,lI'rere d'rered no bE~ri,vii 3vii3 c3i~t;~iS. LiS.L apc~..vv G~.~.S+aA..~ vs t.,~,. ..h.. cancer of thss throat, except for an appendQotor-y--l bESlievs it c;as appendeetoV. YQs, ha hygothcaiz.c3a an appendeatomy 1n 1938,p aomothing that elearlymuld have no eonneotion with this typo condit3.on, and he fails to hypothesize his r,*aieal history oth4rraiso and his drinkina history, includitt, all of the a4cidants. 1;o hypothesizes a broVmn a:m- as a 6-year..old o N b,-,yp but he dot'nsn't rtiypoth::sizo the. s.:c.° l~~ante in whieh` . - - _ ----- -~ ho was involvc:d mheiin h© was -grcwiA, He da9sri't- bypvthet~z ~ - - - i;he aceAdont in 1931 on i~.--e%ir:y 4a, he dc..a~,•~' w

579(54) I at the aga 'oP 64- hi $`rother _ dia3': at` the` a.ga of74, that both the nothor and father tiara in &oodhcalth a11 thoir respective-Aives;" the fath6r :dled of m stroke, that his aioter 3s In Soocl health, that his brother died in 1935 of urera4 poiconirG caused by a kidney ail-ment; an~i that none of t}2ew, none of his fandly ever had c"cor. I submit to Your Honor there is not ono word of tQ$tiviony .o tit ~.t FS. in the record to r~uppoi~L any oa ~ sti~,~~y pvr•~.Gn of ~u3 al2egatxon. X bcli©v4 the fhate to be that those Eu•e not oorr"t, nr:d there is notestimony here# in anW event, t o support that hypothe+sia, fiow, with regard to the period covered by the asaumytion that the doctor waa aclwd to r.eke ts a basis for giving an opirtiofi, bMIn„ here in Y.a,-~sas City working for Seaurftf.ea eorapmni.os in the offioe, tho hotel, U-7 t^utified to two or thra® other__d1r_r emt~_;r~. ~ facts are that ho rorkcsd for th3 Federal Sash and Door CompfuW up to about 19?0 and vient to California for the fIrst tire in 1920 or 121, morkad for the old pamous L.c.gk;l Players Studio in Hollyt9ood, as a bookkeepor listed iii zUe lf as a caKez uc-an, Ha rotwrned to Kansas City in 19122, roturned to California in 1925, raturned to Kansas City for a divorce fi•om his Pirst wife in 1926,, roturnod to Calitornia 1n 1g27, where ho operated a typ=?n oP ~t~~rk hQ c~id out in California, without any i m ~ N N

579 (61) 4~-.- _~.....,...r~,.~~...~:.,;~~ I "ANSMs ?:o. "(Ma.rked for identification Plaintiff's Exhibit 3.) "QtJI:STIOht I ha: ~ you what has been marked as Plaintiff'+d Fxhibi`• 3, is that the reprint that you are talking about, Doctor? "ANSWIMt Yes. "1 believe that is all.* THE COURTt I think this would be a good ti®• to take the cnid-morning recess. I would like to say to the members of the jury that we will protably r.ave a shart lunch period today and quit by 4 o'clock, so you may make plans according to that schedule. We will have a l4-mfnute mid-morning rcrcese. A;;gin the Court cautioria you not to discuss tY.i.s caae nor listen to any discuasion of the case. (Recess) xR. FrFLDs Judge, I would simply like the record to ahow that the papor of Dr. Devins!.s, whioh

t'6-16W ; , s 579(52) :.:h'ow, -Y will _not at-.th1,s,po~nt- repeat ail of A. a-~ •.~...... .. ia1......~....~ i e.~ n1.n - T~. + n ~~,,, bilti CJY1:1~:~3vci R~4j/ •cj+jcu't'} V3 w.iwa.v3• l`L i.g i., ia: racord. I refer to that as another la,proper assumpt3.on: And call the Court'a attention to paRe 35, "Assumv further that he ha$ uscd alcohol in his lifetirae only in codorate acaounts," au being a wholt.y' incorreet an4 ic4propor aASuraptiion and again a aroias V ~.5statecent and along Vith ti=e other thingu, all of them 0u;1ulative, pa.inting an ontiroly dirFerent irdiYidual than i.s Dafore th© Court in thio caso, h'ext* the quastion s..ske3 the doctor to assuzo as truo that the plaintiff went to his fami3.y dootor p;;riodieally for fivo years for treatmont of eolds# throat irritation, the doctor used pailiative tre$traoritaosprayed his throat jSavo hir: zediciraf a par±od of five ycara boforo 051 aaid he went to his Fs,rily doQtor at varioustimas to be treated for colds arui throat irritation," doator gave hiza palliativa treatr=t conalsV in3 of aprayitZ, his throat with nedici.ne, thereupon hia throat would aeer, to getbettar." Z ror:;ind Your Konor that 1-Ir. Rosa toatii`iQd not that he had been goina to the dcutor for ri.we years for throat 3.rritAtitons_aM eu(;h aa that, btr. Rosa tostititt8-repoat;adly_-that he'-:' ;hrQat t tat)f arly kind Qxaept : 0

T3-h-A , : 57902) lii'etic,e; nona 'of his occupationa; ~}as ho boon exposod or uubjeoted to , cny occupati.o.nal htzzarda, ouch aa fur,,as, ducit, strain or anythirig clse iri_auch ocoupations that would tsn3 to irritate hia throati lungs or respinatory traot, srdtnat they were not irritated, etrained, by virtue of his ocaupation. Assur.:o further that h.e did not si4oke until he wAS about twonty-eight or twQnty rdre years of Aga, that would be In the late 1920' sj that he tir-t srwo?ced acos.sionall,y, but that ao~.~enCing In 1934he began to smok~ct regularly and continuouslyj trom. 1934 up to and i.noluding January of 1952, Mr. Rosm sutosod regularly, ex.clusiv©3,y and continuouely the Philip ?.or rin brand of tsigarottes. Asaume further that when ho rirst began cmaktng Philip Piorris cigarottes I}{ 1934 M •he tlL•"oked a h=1aKa~PA- .~1f f .ti'bQ~i:~V ~~ ~M• V V MV V M dw_' . -----v ~ o ~• but that aevera3 yoar4 later ha began sr-oking two or noro such packa,es a dny. Aosume that tni$ later eJccessive smoxing eont3.nue'd up through 1951, and that hie throat boca:.u3 greatly irritate'~, In thrt surjaaa, oP 1951s when ho did cut down on the number oP aigerettea $mokod, but that ho oontinuEds howovQr, to er.alueivaly a.r:aks Philip Noz Ti,s Qigemttos until early in jwhon he aaun hQZb to the Mayo Clini.c in Rocheater* RS.hW-sota j. where he was told to discontinue amoking~ aM _- assume - Vs:r+ V t:./ar S:A w UoV eI,roilal al.nco Nil+J V A$f3ume 1{.trthQr F

579(53) ?-17x ys;4iays whon ho had a ca18; bttt ti~n~ =at ~U ih-his lifetiir:~ artc~r, noz.etarted su~o~hi~,ip ~.orris~ Vhole W. FI-•~s Your Honor, I have been patient on thi n. I c4ont t ojant to interrupt but Mri HarOy is rinking so much of his objQCti.on and also an argumont to the Jury. I o3serwe that it la your hour of reCess ar~d I suggost the Sury be exouacsd so vie voni t have tht 3 argurnent until the ease is over. I dontt waht to put any lini.tation on hin at alY, but of courbe the objection-a of counsel are not jury sr.atters anyhow and -it is your hour of reoess. if h® is poing to continue this lon,", argur:e~~~. I aueZesti wQ have the rE4oss now and the jury coasn't have to Zlsten to this arct:wont u{1tiJ, W-1e V IoEia of thv ~ist$v°. MFIARUYs I didn't knm there was Wnythim improper about this ob3ection, You.r Ronor. 12. VIUDs IJusti su;gest the Court e.xouse the aury durin5 thia argur-ont. It is your hour of rtjeeas t1nZway, so this arSmer,t, ns Pnr as the Jtuy is eoncerneds can bc3 trado at the alose of the case, TO CGu itT t M HAWNs v,uah longer. How Diuoh lon"Qr will you bet . Thez objection will not tio.ko very~ FT3, 1''ir-I'L.D t Jt,dSe* h hae got four or tiye p~Ses;

579(44) that thie tiiroz:y spocialict Gxa:d:r.e:3-=Yft" throAt ar.d ravn him penicillin Wn.l.ch did not s2e:: to help; that on .:._..._._ noss' a 2ast A.t to t ho of f icaoi' &hi s: sp0cialist . the doctor auZgeatcd that tha plaintiff Ghould so to a hospital eM have a biopay peri'or:LOd; that the plaintifP thereupon wont to another throat spaeialist in KanEaa City, Dr. John %nlLiA, as noted in your hospital record8, who took the plaxntiff to a hospital in hansas City as an out patient and porfomed a biopsy on his thraat, sending the tissue to another doctor for exanination. Aasurne that that biopsy cSisolosed a ralignancy in the tumor in the throat areap the larynaeal-pharyngeal areaj that thereupon the plaintiff ce.me here to th9 trayo Clinic at FochQster, PiinnQs4t;$, wont through the Glinie, and iias advi.ued that he ha.d a cancer of the lAryngoal pharyn.~cf that thereaftor -he was operated on as you have deucrlbi~d hure in the roeo todAy, which operation consistad of a block diasection of the left side of the nack, a total larMeQtowy j a partial plua-yn<;ectomy, in which was rmovod an ulcerAtina Grade 3 sauemous ce11 epithQlioma, irnrolving tho Iert pyrif orrs roaoa3 tlw.t in thia operation the dootorn weL•o isequt.ed to porfo:-m a trncneotomy,- aoverlm the p1:~i4~Lit'~~~s s~.in,~pipe and ari:uehi C• it - o s neok 6 ~- -- -- ~~~ -+:hM _ ih_ Fc'rrr ^ut _oi' }ti;i u•.•c;k ratror _ t}tan_up Into his

~_ - ~-' .. ..~+~ ~..- .~.. . .. _ ir.o,ut;h, rz.r_d rs:ncved the 3rt©ayria.1- ~i:~uiar v~in and the st~rnocleidorut:Evoi~ musc7,e=controllLhg-the necks and - .. -::_..... -. r----- --- ~ -. . assw~:z i'u.rthc^t~ tiha~ ~itcrascapic' e~r~di.atS.on report of tho pathologlGt hero at the r'ar o Clinic, upon the rer,:oved ticsue, ia. ao gha:m in the hou-pital record 4lhich has been fntroduaad her s i n evidence tr.3 Plaintiff 's F.xhibit 2. 2lou, Doctor, based upon ttzo above aanur,ption3 and treating thQae assu.mptionc as eBteDlf ah,,-d "feCto do you have an opinion ce a physicinn and aur&eon, ba©od uq= your professioml experience and know].edgej and baced upon reasonabl® wdiaal probabilxCy as di.sti.nguxsht3a from ~exe possibility: 8s to whethar or not A:r, Ross's larMc,ea1-phe.ryt~;aal caneer Nas dLroctly caused by Be. Ronsi s cmoic.itig as aforesaid of Piili.p ~~ot=a•i8 oigr_~zettes,~ M. HARI3Xs Please the Court, the dCandant ob3ects to the QuQr3tion t'or tha reason that the quEtstion en-bolies incorrcct, ir.acourate Peutap to the extent that it aoM:pleuely misdescribe3, the plainti.ff'a back- g;round, for the reacon tiat ti:a~ 4uaation impr opor 3,y rand iricorrcctly ascurr.ea other facts, for the raason that tho oancer involvet3 here is not correctly doacribedj although IIii11 statQ to th3 CourC that as to thie docior:l. do-no~ rcly on that crott,nd of objeation becaus© thia doctozi= 1 aaw the carno-ir b.Lnsrlf, no he couldn't 2r.vo boon m.i.s2ed .

57JO5) painted a picta~~e for the doctor of this plaintiff, the dootor not 1.:wairg bofore h4 ome to I-:ayol s ttuOt It painted a aoz:pletoly dlstorted picture, that it failed to a s aur:3e the c orree t i'ac t s, nnd that it ea sur.-r-A mxy inaorreot faots, snA that it fr!llc3d to assumo other faots that weren't even wntion9d, and for all of thoud , raanons, thQ rnct th.at the queation1e mio2oading ond did not descr{be th0 plaintiff# the dofendant objc}ata to the ?LVpothettaal question that hp-a beAn read, 7M COLRT: This il2.ut3trates one of thQ difpiculties of prosenting testim-ony by doposition. When these questions nr© prasented to the Court by deposition the MsWers and the objections ere eontain3d in the deposit3ons ulong aith the questions. I think, it i) odrvecL- thct the hypothetiQal queetion doaa contain some r.i6atater;onts; sorr.e int-oour8cies, that it ht is not oomplot6,#. and.is inoowplote along the linos that you r~ko' in your, o~rzJ0cfions. Wdlnarily, if the aitnQse .. ,,. - . .. a, .,_ [..__.. .. vere here thosg ;.r.~atiter~` oould be hhn3led on eross- C. exeminat3.on, or tha hy-T~pothetical queation could be re,phrnead aft©r_ thq- obSootion. Of eourse that ar.nnot ~ .. - - ' - • -'.. .- . . __-..-.<A.._ . _ - . . . . . t2~i.e oafiQ, aiu~ thi~t typo of obje.~:tion wue nQt ~ ~ . ~ N .J i

57509} his fzthervaj Qr~~iderit, _:as; tt_c],ez~k; 'doi»Z olerical and accountiizg work in the o.ffi.ce, atWttidt in 1925 he went to tifork fvr ths -Securi t'y istal Pr oduats CompW in I~WzsaQ City, I4zlcsouuli, and that in 3.926 he uas emplged by the Doraoy Co:apany sell3.ng seouritxes tuntil s31 or. ' 32, a.nd that at tilat time ho wo.nt to kork tor another eowpaxy s e11int; secuz•itiQs. it oonipl.otel,q Paila to hypothotsize the piaiittiif ~ t3 4nci`c'ur~ 4v Cuiia'oi•;ua ls'3 1920 or 021, whcn he in 10,51 waa raarried and rorkod as a ea«:araran and a bookkeeper and lived at the piaaes he te3tified out ther©, and coDiplotely tai2ed to hypothd. si,ze hie spetxiirg in Los AtWeles a period from 1925 to 1928, durixaZ w'nich tit;o thO evontn conoerning his sooend -IsaY'i'i.aYj3 jit'+co: w'`:v tI ;j G.`)uvr lbv he: r a s the tirs tone 0 occurred ,inc:ludi i-C the birth of his daughtQr and oiffercnt en:ploywent. In other worids, that part of hi.a life ia coc:p].6toa.y left Qut, He is portrnyed in this--be aaked the do4tor to assw.-,e theso x''aetas he askFd the doctor to tssumct ta. aL Lf.1 ~1.~ J t.~- ~,, .~ 1 Vw...e.ww ~~ ~w aY~/1 *~0+'j'SS LI1Y1Li 4111~ i~Vy /iCt.i'7 1t +~tb a i.a t+wave.u ir.~v, eteav v.a..v.w got out emdoiorked in the office until he wenb to work for tho Better fusiness Bureau and por trays a very . atablet corz3si:ent, steady i.ndiv3dual. Aeo" naxt, 1:e aays here an_ t~~ea~svAptioh.~he as~_ef s••ha d,.-w:*,oc> L,) n ssumri that Var, Roaa' a father died .;- v ~ ~

i 579(58) cigaratitva, did diract2y Causo this laryn,eal-p?l~,ryl~Qal ca;s3sr. • "ANMMs I do havo ttn opinion. "QUF'ST10:1 i And wha t x a your opi nion, Doa tor? '"ANSIeMRs X think thera xa a rzedica1 yrobabilit that umokirg oaused his canCer, "QUI=I0: A11 right, Sir, Vow, Dootors, !.n vicw of part o f Hhat the attorr.ey tor the Pr,ilip t:,orris Corapsny uaid reapoat!ng. volu.-~inous atudy " saxentifia annlygis and aror-b®r of a particular dieoipline j X do want to go into that at this tiae, X hadn1t intonddd to, but Ywant to go into it for the benefit of the court and thQ jury,sone of your oxpori.ence in this particular field of Canaer of tho throat &M o; t ie pharynx and the larynx, Are you the author of any rcaent treatisoe that have been rxCeepted and published by the Anerican Viedioal Aeaooiation on this gubjact? "A2dS, " s The spt.aifia subjoct of s,aoki.ng " otu:4ert "CM..T20Nt YQa, the pathologio effects of swoking on tha lPxyxuc. Hal: e you had published or participated in tha publiahir.g Aa one of tha authors ^f rri,y tv+a:tises or papare on the__sub~ea~-ot_th~_ :~. pAt,1olvgicPl ©ffecte of -Mlo:dni; on Lh4 ].atiyru, Doator9" OD -4 o, w 0

i : ti13 ro/.iuont ;n drut*on 579 drS.v3.n. 1,ii Ho dooori't' hyp6:'rrctzlzo tho tiacidQnt 48) arl hit h.4s ha::d m tho comorof tho tablc, ona ho dooe not hypg.Ahoaiua the aeoidanbc on keptat-bu; 23, 1951j ahoro 1'.r, Roas edmttitc.viy cur'ra.re3 3njurloo to hic, head und noaks and co=%piRintg ho man stiil-ma3cir.g QnXy orjo aoak boPoro Ms oporation t`or omoor e C theti~-~ of his dopozi.Cion on Fehruery 6, 1952s at4 whioh rio has tagtitiaad obvuG* lio-j, thSu $u3otion garporte, aith rezard to tho plaintiift$ todaeorlb* gn ur.OVent£ul, 00 far ao hooith or r:oilCra ba-ck,-,roumj io ooneorr.,"..* durl.r~g hib lifs, V'horOaS frio:.3 th3 VvidoMo alt-cady bofora thv Cokrt v vs au uv a isir~ ~jiii~' 1t`. fii~~+a ~i/:.~ v,ia.u CGaf''FX'.y~~.""i d'~°"''aw~1~ i~ ©ntiroly di.PPor ont pirson than Who ono inv4lvO In thie aaeo, Tok.* vx,o4hor illuatrt:tion, Ra t;ypotneax4aa in thifl quoation md aLko thct dootGr to aoounta that Rrt. RoDa worko4 tor Vhe i oCeral Sao;t and Door Cowy. - 8Lri.L:o that, 11o nypoL-heoizea thnt t:c3 Vaduated frm high eChool• ;"'a has ; oetit3®u Im.-iir.'t~'t ho 4ioT~e`. thrss4 y c'3Er8 to hICh sQ1.oo1 ou3 quit, Cie tcztiPiO that aPtcr ~,-_._ ;. . . _ - -~ -. . ._.. ntter:iins butAa:oaa C~.~~lt'ti~ rui,~ ioT' ~+ w#~u dt3oo $.iti'41c:i:YO or slnkvll 0 ~. c

579(bo)_ - -- ,r-ti ~ - - 1955s -Vo1wr4 G4, pa€:ea 472 to 45C, nMISiiQ2i: ~,~'hat was the title of your" treratipe or study? "ANSiMs OThe ftthologi4 Moots of Sr.:oking on the haryrut,' "Q=TiQa: And who were the authora an d warlwrs on that projeot? ld~ irobbrt P. i~;ya~i, So,:u`, i. : "v;&a and mygalf. AQU'~~,STxGt`3: And mers the tihroe o f you 6oatora aseoo3ated toSethor 2n the projeatt "A2l5M: Yee* air. "QtE«SfiIOa: ia that an oxtra copy that you have of thats Doctor? "AJiSwEat l?eX3o theso artt s4hat we call raprints, and it 3.a the cecepted pr2etice ror authors in the mdical li.tOraturo to ask the Vabliaher to `:ake st leant a hundr4d or so reprirtto, "QLtPSTIEN3 xwondex+ if, so the Rederal Court In Y.anuas CitB, Dootor, w! 3.X havq eon* knoul,edge of your qumlifieationg and apocialty In this f; eld, if ymMouid objeat if x had that particular one that you have in.yQtzr 2kxd` thcrs m.arkmd s as an.exhibit: by -the ' raportar and tiLtiaohed to this deposition so that the judG_o-`r~'6y 'oe*o it. _Do yoti have atiy ob3oatAon to- that?

579 (69) "(Discuasion otf the _record:~ "M`rt. OLXV'ERi het ae_atate on the record, if I - roay, please,'that the Doctor has-advii3ed counsel for the plaint3.i t and the defendant that my ir.quia; bn connec tion with the two articles that have been Introduced in evidenc have not been recently reviewed by him, and ln an ott-tta- reoord request has requeated an opportunity to review themThis, of course, is a completely reasonable requeat, Docto , and one we certainly want to give you every opportunity o and to say to you if you don't have tima this afternoon to review them arid need additional ti.me-»and you name the t -- I do not under any c ireumstanees want to attempt to take advantage of you, $ir, in any possible way. This is an extremely serious and difficult and complicated question, C.oi::aidA„ed e.»d !:eLtSef,I JUAo~1flRf1t about all of it, "wIT2dESSt I think If you can give ne twenty a+inutes I will come back and try to answer the queationa." Then after a reee3ee "WEs'i'IO::: Now, Doctor, since the recess I tak it you have had an opportunl.ty to review the two articles that have been identified in this depoeitioriY "ANSMt Yes, air. I ^rt1E.:,TIC,ts 2tow, Doctor, bs~or@.~ki~i~ you. at~out : the mattc:r oP tihS.eh we were de;Al.f.ng ,4xth when you OU" ~ ~ J

579(66) 3aA isn't that right? I "QU~'~TIOiy: So-that In offeot the basic- expvrinen_~Al woi•k -related to th3 mr,e thing? "Amilm, I think no, "QiTEs TIGN i 3Sow tiho reason your ansn~er to me, air, Y did not undorstand it, is bocaus© that at the very outaot o-; your 1955 publication you r©viewed generally the liy©ra'tura, and pointed out that what you wera talldnG about and what the 11tQraturo had boon ta].kx.n; about was defi.nitQly oeroinoms of tho l4rynxr and a 2'rcquent assoairztion betweon oaroinoma and exce a s iva amoki.rat "AN5IT-lat Yes, Sot !1 cn.' ..w. _ i-.LVA i a`e ' ,~, veli`' laty d anauor to ue, you sSSosted that i.n Defendant1sExh.ibit A, that when you used the lanzso--ti`urther studies to gee whothar Buah Irri.tants as tobacco are a aauaative factor in those patchologiQ ohan ;es of the 2arynx, .,0, I had assur~-Yd i5rom that lan„~tr-,o that your study was reall.y g©ttins to tho study o f oan4cr cAu.gatiQnV "ANStMZi You asstued that, but we didntt so indicato, At loast, I didnIt uant to indiaato that. I think xt you refer back to this article or raprinti-~ which I hav4 in rq 3and j cal'$d the ITho-Patholo;~i4,.=~~ ~~- - - _ . . N ::-f_~oc*,:l of o-a tha r,ovym's WA you read the ~ v a w ~

579(54) there that. he has beeri= goirtg"ttirov.gh -kR. - MDY: ho, I: ukip, agreat dea 1'. , -_ --_-== - - - -,- --.-- - - - -- <--..- _ . . FRR& F7RtJ)t InoticQ-it is thQ hour you usually recess for rald-r.:orning rocess, THE COtRTs I wanted to diaposo of this ma.ttor bafore the recoas if we 4ou.Xd+ XR, plrKWs All r1ght, Judge. M RAR.DY s I boliove that when Mr. Field interrupted that I wes rofQrritZ to the feet that he asked the dcyator to gsoumo that there was a history of five years preaeding this cer.cer of throat irritatian and trips to the fardy,y doe tor, when tho "only testimony in the oaso is that his throat was at all timos free af irritation, he had no cough, ar4 that this was finally not true when in the aimmer of 195i he i"srst startzd being both®rad with the Irritation that later proved to be the camer. The question doQS not hypotheaize any of the arrests or convictions of tho plaintifr, which 19 important in deacribing the individual involved, I b3liev® I already stated that it omitted raferanco to ali accidzraiss, whexoaa traw-A is one of the suspects ejid will be 8howsa. ~or all those reasons it tfie' pofmfo~kf'ciY': V. thO :1E.f-:1z3o th<:t t;m hypowhfj'.:ical qae,:ttoa on csl"ioh the

579(68) a ut.hor w ouad ~~rIca -a° fow rei;~i-rkn nbouti the thickness of the epitholiu.•1, and ao wo~--I think our friend, Dr. . ~. -- ~ - - , .._ ~ . . _ .. ,. S _ _ _ .. _ . Ryan, our- Feljow, 'aaid; '1Well;= uh7 tion' t we find out what the norrao7. 3.arynx looks liko--the so-c.alled normal larynxql And this one yQU are referring. to in app4rently thQ one where we set about just sir.lply to find that out, and xn our sumzxry caid, 'Tho thickress. or tua l%tr;YiiC;cal& miaroscopically for the falQa cord. the true cord a~td tho auhS-lottl.o r-roa of 60 male ond 29 female 2a+„ynxes xremoved at nocropsy. 1 hns we found out theao tollotaing thin;s. 'In the adult there was no correlation batxeen advanairS aSo end thiakness of the opithelim.s 1~rrv~Y ~w~. «. LsvrVSavts.vve ...n1-f «,~.w- - l~ne nn4M~,n1~.~ra oP ~.1~sav ws ; ;.av vss.~v.v~+vwa . v n .nn.w1•._ w ~.... ,iN\r was thieker tho,n that of the female laz+ynx,#.That ia all we wanted to knou. Iaqutunous metaplasia wats present in the false cord oP 27 of the 60 vale laryr.xes and in six cf the 29 female 1arymes. This diatribution of squ.oug nataplasia would tend to e.rgug against au,ch m-:taplasia boinm,, a norrAl ocourrenca of imreaaing ag ,ao unlesa iruch irritants ac emokira cauae involved tissues to nE;o zortt rapid3,y than noxval, 1 "QVi:SM4,li Dcotor, in your sPfort- t`o ..~~e _ Wrnt yc1A oallcd a nnrr_sa1 a1ide for. your pf1Q~~=atud~;°~~o~ rany alidos did you cor,~:o r_oo workin , wtth? _j ~ 0

~ __...-_~..__......_.>~_: ._.,..~__ ._. 41w .1 - - _._ _ _ - -_ - - ,_-- : ~ - _ _ - - _- - _ ., . .. ,. -. . . QaC:CE'r kia:3 c02:CCI`llttd~ t~~t _AQCLtI`'2tt.' f3tQtftZ~.~CS t`.2`t? not raview in the litarature which I have offered to do -for one of the Jourzals so that other paople in the field can ri.nd roferencos quickly. ' "QM,~STI42tr poctor, X will ask you to toko a look at the 1~55 n.rtJ.alO and a: k you if Dr, Wailner ia not eited-not in your review artialesp but iA the footnote numb3r 6t "ANSMl I thought you sald Voolnoz+# who Is one of our mr-bors of our patholoay staff. "0. U~`STIQNt No, X am sorry, thi a i s Undan d. Wa13.nor, and let xe, as aon9 as you have suSgQstod thece articaec--review artiolvg, I t'nink porhaps it uoll to get exaQ tly what they are for tho record. Is it not trv.a, Doator-4 "0d.13'M: Lot's bet back to tho firat qugution to got that off of my rdnd. "QtJESnYb;1e WhQthor or not h'Allner sta,tee that accurate ctatistics are not availablo. "A;da~ t 2may have cited it in the arti4lQ* but that doea not maan that I A,x•ee orith wbet•: he -~9Wjp_-*- ,.- ` I srt just citina it from his a~~'ehtI not hnve to aSraa rith uhat an;jbady aaid or diaAg,reo," .~~ ~ oN ~ ~

579(72) _`I aeri~t- aMtaQr- .hat, ye0iir no ar p any way you liko it. I_4ust hp_v© to. tell you thst for sora ti.iaQ Y{ had baon seein,3 peoplo, U-Ith oancers oi tu3 ~i'vu4il uYid i.~`u`•3at 8iii~ u~",riuY~ ta a&~~ of Ty colleagues have, who in our opinion have had eanaer develop as a rosult of excaessivesmokin6. We had no, aa you Day, __sci.vntific_ proof of vuoh, therefore t4s tset abot:t to seo if wo eould do sou~ething-som$ r@sQ4rch- it you aant to call it, on that puhjoet, and thece two papers ar4 tho recult of that. WQ eertainly ar© not foolish enotgh to believe that thass two little pwpera- those two little projeots, provo that the patients got aancer from sr:zokirig. I am not that foolish, I realiue, and ue ask for others to do norQ work on thQ subject- tiic°it is~s tiiv e~ivNV qa°.y t1'a~pt pt~t 4evan r=r.MiArv°i so . aoi~ r u on o. . w M HMMYs I wi1l skip the motion thoro. (Roading) t "Q=TZC,N; Now, Doctor, lot ra ask you this quQstion, and I think your ansrfer 8uggeats it-•tho aliniaal obsoivationa that you and otho.- su_rsoons zade of their patients, or as 2 think you put it are a f. 1 b ti t tt•o ~zioi+al *A0 A n' orersl kn lod e J that ba a fair statenpont, eirt woid ~ Y(:s. I3u;, stt:ndt»3 alono, voezld-yo,i Un OD ~ ~ ~ r

--- - _539021 T3-31w 0 surN~.ary,- -I th knk all yo stated waa thata tho: evidence : f supports tha thosis that excessive uwkinS is aaaociated with pathologia -ohansos 1.n the. larynx. ._ It dooan't say that we actually saw any crnoer of the larynx In the s tudy that we mad©, It doosn• t sny that I boliored that that was so, We were vory ce.reful to 3ust indioata that all wo bolf.oves is that we could see so~:e • .l ~.la'w.ww ~iffsti ~Sff~ !d0 dSdN~~ ~~ M-•~~i .~.r mention the word ca,noar. At least I didn't rmoAn it to. "QUESTXGNr poo tor, why i s it i f thi s uas the oonfinenont of your study that you used the sentence to throw out clinical recordaj, M.,~auso c3.xnieal reco:•ds alpn3 are tot held to be statietibally valid *~ v,^ta va~ch a ~rson ~.-otu~iv snok,ed in ~h rv •.v.. an irportant subjQCt aa =-okir.3 t3nd ito rolationship to cttncer, and simo clinical records are ths only sourG© of information avaf lable to us In the prosent atudy# no infor~~.ation w#.il be pr oscntc3d on the smok.ing habits of any of the subjects in this study$$ "RN3,Mj: 1 boliove this study, the one that ,, to, is a study uhare we w®ra tryin,% you are ref4rring to find out just oxaotly what the epithQlinn of the larynx looked like 3n the aduXti person. We felt.that no one hed really had an adequate. stu()y.~r_e, er~Q A J _u lo -)kad throu;~h the various Vatholou booha at3d this .o

obsQrvatiom on- the patient aXonQ, It wou.td not . ,.. ..~ -. - - - _ ~. _ . _ . . _. . __. - _- . .. _ ~ - constitutQ- scienb`ifio prOof` that tha patients a Can4or v•o, a CM1tavr~„i 'Inv or.;ntrl"rs~ "Qv"w'.,~'.rIGH t Yes. And th3 sar•ae thi~&S wV%xld be true of the obaervations and reporta of other alinicians who add thnt r,uch additional evider.ce to the large and gro!-,1inZ twnd of 1;tCdical inforr.;ation for study of not only . ~ prople in their own discipline but in othor disoiplinesg "AnSwm: 's'`nere r.a.s got to be r-oro than Just opiniobs and a],in2eal observations. "C.UESTION: Yes. '"ANS,wm: Thera must be more. "QMT1QNs Xes, One of the additional factora that must be taken into account ard the atstistioal Sur'Yeya of ara2`ge pJ gu3.ati.on6s ,Iis tt~i'At`t not tru3 jDoC`vort "MR. FIELD: Did you aay 'must'7 RI•R, ©LIVERi Yes, nucC. "A2IS4:'E,.Rs Taken into account regardirg thia qu©stion we arQ talking aboutt "C3L_- T10idt 'XBs, "k2MERt Yes, th©y should be," Now$ if the Court pleaaep g trxrting-_wit_h=.th*--: ftm 72 next q+seution cnd oontinuing to pago -=-_Z omittin _ , = _ g foai the rea,con thr-A it deals with lung cancer, which is t;iz9 1ite,•atux•o p, vtainiatig tu t

579{52) . f Leatiraony asu to v2iat the exrr~aur© Yriaa;1He'then-xeturnad v0 Yan8f3a City &T'.t1 ho w?o~Y~_ for a Eacuritieg CoupmY ,. _. _ _, _ . ... .. .-1 ~ -s. , .: , : .. . : . L:.ht=.i ::=7 iiL:ntJ L"A work-~ for tha~'-3ettor. Businoss Bureau! .. according to the evidence that -ia no;i before tho Court, Ho~:, the question on page 34 aeked'the dootor to Assme that T4r. noas vas r.over expo$tsd to any industrial expocu.^e in his oocupation, any oceupa$ional hazards, but ther© i s no bstirony as to whtct 'tha exposure , was When he w aa in Caaifornia, his ocoupationa there; The question agkec3 to asaume that he uae not orgaged in en,ything that would cause voice atraiA, N", ~ would like to call to the Courtli: attention that Nr. Ross testitied that his bucinoss was aak3.ng spee8hea and aolling from 1934 until 1:~G0 or until the tisr;* of Lit~. AAI/AAN Ie,~=G~+v+.V aiY YV^AM w*YSvvh~..~i ~:v ~ iiAQt~w+ed7 VCL[1V V;' V• rv I . .r~ j .and that ac ho put it, "t;q voloe was my livingt" 8nd yet the dootor here was asked to pssuv:o that he did nothina in his liSe that would expoco him to voxo4 str•ain.That is ari urs-;arrar.ted and invalid Qasunption. Plaintiiff here ha8 atten:pteal to exclude some of the very raterial factora 4onsidored by mem5ora of til4 mLicAl arAc: soientific world to be mtorial faetora nd to be poac~.ble aausQs or a~lapeots in conr:e4tion ~u n d - wlth c]iseas4cs of thta kiira. A hypothOCical-q"$t:tori . le .. 1~AaV..e3 \ '..'~P ~ AA4 yo~,a..3...-..~

579(81) and theg4 tu:aora prQ ;ented in tho noae and throat? "U~' i IONs I beg your psrdon, you are righ t, I didn'th.-tve this opon at the right plaae. ~ fiJds!~t i I think you are referring to the prbs.resa in ofi.olaryngology: "~L".~.~^xl3;t I am, sir , ~ ,A%Si,7M: Literatiure entitlcd, ITumora ot the tJoso and 7`hroat. l "O.U'~T24~.'~: Z gm, sir, Those ara Yublirhad in-- "QU~'.SfiIC2Je Thore! ar-o- a Verios, 1)oetor. ~'ANSts'ER: They ara also Publiahod ixI tM0 ArChiveS of (tolaZ`yp;olt}gys "Q=TI0'Ns rnd Voiwr,e 43, and this first aeries . . - .;} : :a t'r o~ „~es 00 to 6354 ~ AId ;1M I Right. PQU~,.fiTIW: And this is the aflries in w}iich I am irquiring about? "Julsonc ~.'es, a1.r. ., "QU11MIG:3s 2.ow iSn't it true that yQu have been a co-author md in the lant two art;eles the sole au thor, of a aerlea of artielos ur.ler the ScmQral title of turnors of the noBe at~' throat, uhich ir 3.949 revic-tic.•d uuiju 69 articia$, and in 1952 revin-Cc! 1?0 ur:.?l41. ~}a in V Pn:iit~:-y 3.9», ,'~.~'-~4 Nz•t".Ole-, 'Tivn3 nf 3n> j LA 0 9 4

579(79) on thc litLraturo you gave r.~ Z cc.r.not tell you e;:actly when it waa publichQa, All I ks'iow ia that it was received 3n the office for publication on January 29, 1954* and th3.s'rartielo was published i.n Ap.Hil of 19540 which I acsur..e is the same ond, "QUMrIClids And 1 hr.nd you this. Is this a 4opy of the librarianis aard? "A2MiMt Yes, I e~re0. "QttEsT20,111s Hox, Doatorf I aakpu if arty or1a- of the pi"ea of literaturo Whioh you oIta its your article, the atat.erVent was not sado that ,accurate V VMtist_eA L+ra not '..vi:.~.=able? "MIsMs ReSarding., tthat? The num.bor of f at people in Azv-1aa# or what? 0 "QMqTICNs I am asking in the senao of statistics as to th© rolationahip allogod or othmnticcr bayffGGi7 ;atS,LaQ au.'fering t'koz lar,~r.;::a~, Ca.*:c=r t~h0 had amokcd oigar8ttes? "ANS'Nm,Rz I don't think that tho author rae err ref©rri.r~,q to that. I think hv was rer ~~1e etatiatiac ropardS.ng non'-spdaif3;a _0 c;n4ke1 e;-Mccsi'v®ly foe y0Rrs. 11-3 Says'O -

5T9(76) + . h~~re ~.n~J srhich` t~ould, t~.ko ".ua = u11 =~u<:~c.^ "to try, I will ba happy to go _r:?:ead and read. it.: queution but that thi.a care irivolves ot3-mor in the throat ' • T'riE -Ct3UR2i 'I dont t think there i s any M, Hk~RDYt PyriPorr:t fossa. MR, P'IMDt And as I told the Court, we are l the not soira to havo any dtrect testimony on cancor ofe 1unZ, but ao kir tia brou.ght out !.n e, ros£-exarlnation* I donit think ho should be alloWe4 to pick and choo3e, THS C4URTo i`here ia no contention In this cncQ that thex*a Is cnncer in the iung, ta. HARDYt Is it understood that I do not vaivt3 v,y position that this is a cancer oi` the pyriform fosaa4 ME CGUM I think 3t was undoratood at the start that you rmra not uaiving your position by readxnS this depottitioA, M. HkRDYt T'nat wao in conneatioh vith the larym. I an now extending it to th0 3mg. THE COGRP t Yes. . t-R, H~R,3~'Y (Resdir~} _ "Q=f2CM Now, Doator, x will aak you 3if Dr. Wallnor* whom you cita?I in ono ot• your aritiolt~.~~. =~ did no: ctate t}:at ae of 191,-- 4 that n.f tho rolat;ior::?iip bat--sr~¢;,..r:oktr% t3ln,arattes ur:d lunS ~ ~ ~ ~

, ~: : . c.r~s' • a,n. . . ..i . . .. . .. . ,.. . ~ ._ ... .. ... . . . k ret.reno* of the waliror article:3 ' "A3:SkEK: Yes, it is. "qt1LSTI0N: Dior. Doctor, gotting into this artiele itRe2f, fte. Oliver read to you trom that portion 579 (98) .. _, . Aeapiratory Systen, l ur.der dUte ot Septe:,Ler 30, 1950, wi11 yau: at~te.~h~:her;or..a,o.t . that .is iiete6 aa a or the article relating to the statistics or absence thereot on chrrnxa laryngitia rnd the cauaative faotorai do you recall thatf C: f "ANS`-TRs I think he asked me--the queatio' wee worded suoh that ho aucted the tlaliner as saying there were no worthwhile or available statistical "qtiRS7I014s Statietinal stuclies. "ANSbEits Yea, regarding chronic laryngitis and •ookina." kR. HARDY: Jus t a nc,ment. With regard to the next quoation, Your N:.nor, I object to It tor the reason that it «s improper redirect exa4lnation in that a does not tend to explain any of the matters brought out on oroas-exapination, and constitutes an effort on redirect examination-to put in hearsay and self-aerving artleles--a.rlP-aerving eaatorial trom articles in the foru of direct evidence, when artiolcs t;sed .S`. • :J ......"...-, . ! I . 4 ..w.:.. . . .....:.~.:

579(109) you to ratreat or change frou your position previousl,y taken that i» yoiu• opinion, on the asaumod faotn of this plaintiff, John Roas, your patient's case, that the emoking- .of the oigarettes was a probabYe --that is* within the realu of weDiaal probability, was a dircot aeuse Ql the produotion of his eencer? Is thero anything in that extensive arossMexar..n:etion that would oauee you to ohange in any way your opinion se given, Dogor? "AHSWEt t No." kd .,

5e" 579(88) As we cora3 to anothor nrticle the:a wi 1l be anothQr card, end the artiale ro1lawing, and I will direct. your attention to the particular portion that ie reproduced on the partieular eard, Now let vie direet your attention, if Imy, to the 1954 article in which Kannataay co-author`d with KQrcoin. Nor I will a$k you, Dootor, if you rocor,niZe this aa aphotostat of an article from the Britieh Journul of Cancor4 OANSIMt Yee+ sir, lQt;IS.STION: Published b June of 19544 ~AtdSt~'~{ t Yea. pQUSSTIOitt 2Jow I would like to dirc3at your attention particularly, Dxtorf to Me 191, whora. paragraph on3 begin$, and to road that, if you will„ e.-~ ao other ;ortion of that a_rticl4, to Vt a back,,mrouiid to then 2.nquiro as to the atatistiaal data that uas availablo to rxdical sGi6nce in the year 1952? "ma`•'.~t All ripht.t7hat are you aaking r-Q4 "Q72STZflM 23ow havd you read thia, oir4 Rl*Ji•J7~Rs I am wiliitZ to ax:c::er th$ quQaticns or try to, "QUF,TIrnYt All xig?it. k'hat I am itiqufring le vhether tiie itva; Xabla stattatt.ca7, evidt?noe showed that ao 1':: ^•: S'-~1r ld wa,t oonec.{a,od, th~ro wra no ; il c,n%-Rr, .ki3d r,bat

57y(55) f-~ ,- ; . . ~ .. .__ . Y . - _ . ..- :: - ~._-- , trx--de in the tascing of` t*rLo c]ej~~altlorir,. 1'nar a werci other.objcationA c.ade. - =VW liVliVa, j•ul. 11M213/1 S -ca:= thiln;4 TKg CJi~"tTi YQs,- f~t, HARriYt I ehould aQd that this deposi.tion waa taken in 1959. I believe,.when-yes, rxc•eh oP 1959, .. '.'~ zi ~i~t A, 2,r)esAM ...r YfhCal d1~~t e..ean»e~seI:t~- t'' the de~`4Y1dtln~'~ and ~~ nuss av~,.a.. :~ that at that time tho pla.intiffls doposltion had not been taken at all, and that his Caso had besn pendirks since 1954, certalnly a suS'ficiont time for counsel for the plaintiff to kno+' his own client, aMd certatfnly aince the plaintiffI s deposition waa not tekon we could not know what the facts were to taako such an objection as Z have vAdctoda f, and from thQ p7,aintiff himsolf the inaccura4xds have baen pointed out, -which could have been done by aounsel at a.n c}arlier date, had thQy talked to their 411eut, TiM COTJRTt k'e]l, that miy,ht vrell be. Of oourao in a hypothetical question it io not any re-quire- mnt, accora-Z to the pr2v~ting vi.eli, that all of the facto be hypothesi2ed in the que$tion, rlowp the lack of any substanbiel facts or Qn~y matQrial fncts ordin~rily~ _ _. , . f_.: ...:_ . . would be pointod out on oroas-MatInatioh. -Ahere ^thati---~ oar"ob be doi),3, of coui~se theti. would go7 to 'th© wightii _ siIro, vaX,Lzq c:' t':o qc+hstion, I ara goit-8 to ~ 0 00 v rn N Cb

579(111) v2 City of Rooheater, Minnesota, on the 9th day of 3eptember, 1960. "Mt. HARDYt The record should show here that this authorization is from the District Court that this deposition is to enable the defense to further oross• examine Dr. Devine from the time of his last deposition." "DR. KENNETH D. DEI/INE being present pursuant to the order ot the oourt, and being first duly eWorn in the above aause, testified on his oath as tolloxss "RECROSS EXAMINATION "BY MR. HARDYs "QUESTION: Doator, you are the same Dr. Devine who gave his deposition in this case on March P5. 1959? "ANSWERt Yes. "QUES:'IONt And I should state, Dootor, at the outset that the basis for this further oross-exauina- tion-.is due to the faat that the site of the oanoerand the meaning of that was not fully understood by the lawyers, at least on the defense side, at the tirse of the deposition, And I xill try not to rehash thinas that have been gone over, but I want to supplement that tntormakion. F1.rnt, Dootor, on pa-,Tes 19 and 20 of your earlier depisition you deaeri'oed that the throat is

- C,5x .1 579(91) 1.ssocinttor. fio%'.:weon SmoMnS tvld Cr.roinorria of tho Lung'Y "1.::°'J~.~ sI believe that I have read that F.;'}t41e. "QMT7Qh; ?.oH I willl direct yotir attontion, 3f I n;.y, to this portion thEt I have ch©cked on paZe 12554 "A2nWwrtl Yefs, x resd it. rQI,M; jln;ls vould that not b© a reports Dootor, coni`im.ing thd fir4inq of Kennaways eo fF.r ns England rzs oonoQ»n3c1, on the cte.dy r.:ade 8 0 far aa the VnitQd :,taties was concerned by the authorn of that articsle4 "Ah,'S? MR s Yen, "QU-MTxEUs Dootor, did you know of any othor figures in exi3tance anyrihQro that s.ould attempt t0 sut;acpt t?,at tl-v3 trer;iOruous ir.cressA in lung, aanC$r hAa been ;arT12eled by a like hrewndous increaso s0 fAY' aS laryngeal Cc-nCer is conCoX'Ui?d4 "@U'`~TlMt s Xs it noti true, Doctor, that all Qf the fiSuroa i^x.th ~nich you aro f~iliur W44 ov that ; goal oan4er oither have, as the tY:cs {nci.der,co of laryrw }:er}ntn;a;; ecteteu, rer:ui.tiocl coiistant; ov ht?vo f n eff"b r.tevreasedY , tllxOt 1`•11rm of <-I'q `ittt1StiCf! which . yo:'e.l ~e ;-.no 3 L1•+ ;'a: :iIt of I h'a`l9 <:Qt, - v a w

579(89) ., 11 it was the opinion of end Kennati•:ay that thia stAtistical study, wh4n oomparo-3 wi'th atatictical $tudxes ~.ade In connection with cruloor of the lurg, auZgestn that amoki.ng h$.s no earcino3enie Offect on thd larynx, "d hence soro other reason uust be aought for a difPerenca botpaoQn the lack of ratio botwEan countryp rural, and urban figuresf t'A2TSVMI : Yes, ron.ntmay r~,zdo that statemnt$ based %pon his interpretation of his atatigtl.es. aMI-STIQ34: Yes, how then Iwant to ask youp Dxtor, if you knom of anyone mho cazzo to a contrary conalusion boforo the year 19524 "A2SIOM Not at thie tive. pQU'•'STIlNi In fact, Doctor, is xt not true t«at work ca3-ried on at the 2;atior.al Cancer Institute. , p1lished in x953, reported pmQrican figures that follomod the nPmo pattarn am the English fieures so rar as a laak of aubstential ittcrease in th8 ineidcnoQ of larM-oa1 Cmoer4 "JuSU •~+01Y,~?~.'~ Do I ..a...n:~ of ~ ^~ that a•r~s#-FsQ1 n• . ' . "Qt3:',STxc?N: Or if you kMoM of the f4ot4 u 1, you knm~ of the ftnc t then Imon't have to fiddle uith the fxrtiole. •' . ~ o s I do hoi: ?va it riht fraah in uy M4I t ti~ C~fi.~ t+~1'~4s ~ ~.'~iiZf ~'i tt .8l1 ; Gil i ~ ~ --- ---- -----• - - ---- -°--- - -----•------•- - •---------------_..._ _-.~-----._..,_____~.-.. _. .,1 ~ . ~ t K - - -- -- - ' - - - --- ~-~---~-- - ' - . .~ • ~ ~

, 4 a 11 . 6ow 1 i ' opinion tn contradieti'i::ction to le a dIf._f.erence._ • . -_.~_.. .. •-~. . ..'. 579i96) _ -, -1-• ..r~! ..~.-- - .• • . r jii~t i:r .. ~!En opinion. There : stinction to your "QU1dSTlON: And in contradi own individual oedieal opinion, is that aorrect! "ANSWER: Right. "QL'E.STION! Kow fvrther, I balieve earlier iA his cross exaJination of rou, the lawyer asked you :t you knew of artiy pe: sori or aroup of writers or authors who were contending that oi garette scr•oking was a ouuaative factor in rrodueing 2aryrgesl cancer, and were so~ stating prior to :952t I "ANS~'ER s And I had to ansrer that by saying that I didn't know of any, but I suspect if I could be given tim.e to go to the literature and search for hours in the iibrary, I QoWid fird so-. for hiw, but I bed to answer correctly by sayinS at this tiua I can't I I remcmber. "QtTF•STICN t That is what I want to develop, and when you said, 'at tria tit^o', you are talking about aeat,:~d i:ere at tho deposition table? "ANSWEc2s Rip,ht, "QtT~'.8TI0;1: Md not having available to - _~ reaer•rch tha ~:edieal literature on that Que.a:tfo2i,Q;Is=M• =- thatt corrr: t4 M.-r in, thlt vcry -~Nuiect`ibn','-'".`R 4 to tho .itrt icilo thr*t he croun rxartns:d yool `&:o.~, 4

I f = ~ t- - 579(97) o Lcrynx+; bf~l:!nden J, t~~llner~ t:,D,, rczd ct tl:o r.iddle aection. of_ the 1 r_orlcan • ----7~ryn,?•~3o~lcal Otrd rtolaryr.golcL:cR1 Sooiety, St. Louia# t,.3s2ouri,JPrn.ini•;; 18, 1}c-A, th.et i n tho phatoatst thst ho aaa crocucx:-r.inirk; you fra.~, is that Lorrv4tt "1JtS: ~'qs YeA. "QU"..a -z IG;ts Now I aircat youx- attention to the roforcr.ae.4 In this urticlo tr.at tho lauyor would oroaa exar.,ine you S'rotti a0 Quota to you "crOiy out of oonte:;t--tecr Qer ta:n poMtior.a o2'it out aA leave the rPst unread--thc; i•at'er e:xo to Jr. Chavalior Jack%on, in their treat'.se, trAlhe Laryr.x r:nd ita Diseasoa1p yubliahed under khat dat!a Doctc+r! "PiF.:; n s 1937. 0 Q•vLA 1~J.4Jn.•. .- • •• t Y dsT`~zot • • • •• 1.,GwG ~ a• yva3' a1vbvr.~ao:. .:. .,G .ro the reforarsce 7,2, Vyndor, x. L, cr4 Orahau, ,t, N, 'To3acco Sr:oking e3 a possiblo x..'tloloF,io Faetor itt Drnr.chio6cnio Ca,--cinoca; Study of 684 Proved Cases,' pablishcd by ths Jovrr.al of ;ho AmErtoan Mdio8l Asoociution in t•:ay of 1Z43 s•ate uhet;:or or r•ot Mh-t Sa liatcd as a rea"©ncr.ce In the Wallnor artiole? "A:;S';1'.ts 'fee, it la, "q Cn't.t'TC.'.ts I e13o diro0t yotx attentLcn to =~_~ . - , "l •?-+,r .-~ t. w_ rt.:,.., zr,t1 Cr•-noH of th^. ::'outh-end I

.. t -. ~ - - . . .. 579(37) Take 3 1 @c•ri (i;heroupan, tho following procecdings. We~*e had IN TH~ ~s~?,t,rtZI4 0i --1TIi`' .Yl RYt) ~0 gv `v&v i~~ i•'u-. ~iar-dyI iiR. F.i ~;u3 z ticdii iricist Mrely to get the context on thfl bottora o£ pago 29, to Plaintiffis Exh;biL 211»- the question I read befores "QIWTICN: Wvll, I noticQ at 01110 page on Aai. H/tRt7Yt QnQ place, rn. I;+I=s xhank you, e-.~at orba plece on P143.ntiff 'e&xhibit ^# indeed on the tirpt p4zo under mastQr Sheet and General History, witrh ro~p~t to tho ontry "Tobacco', there ia M, JURAYs No, it you arA going to get CoMtext the entry, 11Qss than ow paakaGe of cigarattos pvr dayts is that an entry that you maae4" The entry dovs rint t0hen-_page 3YiM firiah up the quQStion on M v 29. - I:Tt. PIyLAi I have alroady road that. ~2t, HMDYt No, you didn't. T'rtS OWN t Oo on to 30. FA. 1-ULRDYt Go on to 306 kiK, P.WJjD t All right. wIs tnnt an entry that you madep ` Tha enury _4cQj not--

"QtJr~ST.141Ys Yas, but that was not cs.uSht in this series of Ezrti.aled, "A2:a!Ms T-1en did theae start? "QUES^lONt I think your revl.ow started In 1948, Doctor? "ja:S'hT!.Rt That is possiblQ, booauss thosQ-•x donf t know whetler you are ffirailis.r with nedi.eal literatu.re, but it is put up by verious people in bownd volumoa, and if a person publishes an article todAy it my not appear in our library in a bound volume for possibly one who3.a year, and that io the only way I hmv© of mak.ing by werOk easi€rr, I cant t go arctund ab i , . and I vai7,1 ask you iP you Agros ~ 3,`th rmin1 or Canaor Joi ` 1 ro vsr3oUs libraries and check tris asngl® regrint and that singlo reprint. Z have to wait until it . oomos to ra in one of the bound volttms and then Y, go throu,gh it Me by p3ge. Noti uhat ycar was that? Kennatmy and Kennaway, in 1947, yyou am s.skina me about? pQU'cSsI4itis It is Kennawayla articlv, Doctoro that you did catch, was tho oy:e written in th* Britioh what ;CeDn aNUy ~aid, rsaon h® st;~i4d_'thV~__74 oC t;io i.ric i~ .,r;;) o af vU- -A:csor af -#:n! 3V,ng a;x! 0 m -4 a Ln Ur

ku 579(78) article, AIFt ~ T~iA.~.A~l ( Read ing ) i "kJdSYrFM%1 I aon tell you how that ia referred to in our article called tThe Pathologic Effects of Snoking on th© Larynx' , tha.t Is on the first page, and it ia in the firat paragraph, and the aentenc+e goes lik© this, Ir:any authorm, .. f, and then thera ii a little asteriak, e.nd at the bottom of the pag4 it aaya, 'Reforcnoem 3, 4 and f>1 and 6 is U'allinorls; whl.ah you asked ze about. The title of Wallnerta c.rtxole ia t&nokert a Laryr.xl, Laryngosco3s 64, pages 2S9•270, April, 1954. Continuing x-y aent-enee, It:W authors have considerefl anoking a mp.jor cause of keratonia of tho larynx. t Now in that arti.4le we are eimply atartins our papar out by sort of rovl,ewiM what othera had o-slcl. Sf there are a..ny students of this subjeet, or lawyers, who want to go to the literatureo ue wero IntroducinS it tothem. We were telling them vhare to got its uhe,,-3 to go and find it, "UMSTIp?-tt Doctor, I understand thats and I ait not $ttempt£ng to put in your inouth that you -- ' allr.or ha.d to aay, acaeptQd what Dr, r . ~- p A1zS;•alis A1 l . "iQ1r,arIo2;s X h a.nd you thx s ar t icla and _Ask CD rn ~ 0

I I 579(86) read 3.t, "QU~.'3`PxO:.'~ s I have, s ir. "ANS'-Mrl: And get your otiin opinions. pQtTSSTI0Ns I have, sir$ and that ia why Iam again askin,, you the que3tion, in your review of alr~aet two thousand articles over a poriod of tirA, that the rnr:ber of artiolQg in the medioal literature that rfllated to a possiblo oau,ative nffaat botwQen smdking oigarettea and laryrZeal 4anaor, vas limited to the Yennaaay article! "ANStMlt I can't ansuer that bocause Z cannot rome:cbar how ttony there rA,ght have boor. "QUFSTI©Ns All right, sir. x3ow iet' a talk abouti Kennauay a littlo rr,re. You a1od recall, or I ask you if you r coa2l, nhst'.sr the Ker nawaya j after tir8t statinZ--by the taay, vho are tho Kennswayo, Doctor? "ANSUTRs X don't knox, "MSTIC~:L You know what Country they do uork in4 "t~iS~Uris I bo3lcv$ they work In Oreat Britian.l: "Qi1MmIONs Yc:a, cir, Is their aork gonerully rCoogn,ized ea co;~yotent work iA th3 Senssal eoientiti4 I il;;ni v 1,.n0w. X don't kr.ovf them, r 4.r ~~ ,~ ;~r... `. ~ ~»y.~.vf.nart~y LlJ;= -V!•°.~.+ vi.U 4}':e ..~.. I I ,

57H , 5 7 9(931. "P~TIS: ~2: Yca. nQU3S?'I0Ns I hand you, Doctor, a copy of the hearings before a sub-oomittee of the United States Geverment in which Mr, tfiynder ans a ttitnosa~- "I•M, FI=s Miat hearings are thoa®! "M QLYMs ECq p•dan! "MR, FI`rLD: Msat hoarl.rarp are you referring to? "h`.R, OLSVARs Thia Is before the Sub-Cor.w~itte4 on t3dvertu-aent Opq rAtions, the Houss of Repreaontatives* the 85th Crn,r3ss in the Firet SQssxonj Testimony Tak.en on July 1a, 19. 230 24# 25 and 2f p in the year 39%1• "pt. P'I=: On uhat SubSC4tt "t:R, 07I)'r~.Rt You may crong cnamine at the prop3r ti". "QtJFSTIO?Jt I want to direct your nttentioni Doator, to pagc3 79 of Dr, Wynder'a te_tinonY j and it you uill look on pr.ge 77 you wi13 f.ind that this mak.es re:r©rcnce to sorne of the aauo ta3torial in the Bross a.rticle, uhich I think you Indacated you here fainiliar eait-h--doea it rcrrash pour rceolleot•1on 1`rom rQadS.ng Dr, v:yndert a test:~r:ony on pag3 79, t::wt the atatiatical data davelop3d by hi.sa tended to ahow that a grc:ater rS.sk of doveaoping lRrynSeal car,ocr was prosent only ir atstl.;;#,icf l pssa:letion tiiith cida..~* ana pi$a srro1kprn*

579(85). ue hhava a refozer.co he.•e that Coes clear back to 1q27, by HelEiig, lIntluence of Tobacco and Other Extracts on the Epilthelial Cell,' Bobruary of 1M. , ; "QU'FSl3a:dj Yes, sir, and you oited Holaig in the aarr,e rr.anner in uhieh you hnvo daaaribed citing Wnl]xte t "p-XISIMs 1:'e have an article that started in 1a41, j. A. M. A.-aa'urnal of thQ ArLarioan J:ediaal Association, 'Etiologic R o1e of Cheiiing 2obaooo in Cancer of the 1:outh,t "QUEST102i s Yes, and Is that not citod i a the samo manner in which you aitiod Wallhor, As you have explairked for th3 rooord! .y I I "AZ;StrTJt i Yes, ye rofer to that in our artialejo 'The patholoZio P.#'teots of Sraoking on the harympt and I have or.o hera that ota.rted in 1939. 'gome FrolW=7 FxpariMenta in the Study of Cigarette Swks and Ita Effecta Upon the Hospiratory iMact1 1 and i.t app3arod in the ~'~nnaxs of OtoXaryiv;oloZy, Rhinology tmd Vwyn,,oXog, ~ "QUESTx02dt Doctor, Zwant to come bock to rq question as to rhethor or not uith thoso articlc3a you are attempting to contend that thoso artiales ouCG oatod a oause and affoat rela4ionuhip betrtteen mking 4igarottea and Xtnng cancer4 " HA~~;~.;'~s I am aot se~~-<:Attt~ r~nyL•h~.r,g,h~.r,g, 1!` ;4 " yoU to xf.-d ivl?at they cpi.d, «Ehy rion+t yott F ~ Q N 0 CD V P ~ ~ ~ i

579(62) :.,.a., _ LI.: _W- --_. was r,,-:rked, ie Att2ahed to tha deposition and ia a =-.. ...._. .s..n.....,:._~_-~ `;y - . i part of the original. H0.'tDYs Nom, Your Honor, in conneation with th©--I arj to be pemtltted to reacl our mfn oross- e.x~raination4 THE COtRT: Y©a. M. Fl=: All right. I,'R, WRDYs In oornsstion vAth the cross- examination, I should like the reaord to sho+, as the deposition will ihQy* that at thti tize that this deposition was taken the u:edical roc:ords had SuBt been r.ade available to counsel lmodiately before the daposition, and that aounsel vaa under the ir.:prassion at that time that they worre taiiCii'1g aboub a lar,yMaal cancer as distIn,.~ished from a pyrifQrz rQsaa, N.R. PIM: I objeot to the statement. hiR, IiAI',DYz Iot tue fini.sh my atatement;and tor that reaoon„ in viwo of the Court's ruling that on dircot ayautination he could r©for to his artiole on la vr'%7*:.x, that ps, xoaling of the cross-- ec:am.:.«°tion is 3:ot to b© construod as my waiver of our position that this Qrag not a cancor . of the lerym. 19..'g1 FI~I?i-HonOI`j.-Y fiVIpl,y" oJeot to ; ; the. flat P.ssrrt.ion by oolmsol that this uac not a oan.Qr ~ 0 - -- --z--' -_ _ - _ - - _ , . , of tho lfzrytke. 0obt Ss ot;a of taia oont~~ated :issues in O ~ ~ ~ w d

.. . ~~. . . 63-4 579(99). exrrinntion nra to:~ 'ir:pQacrw311t'bhty j'- ttnil thlilri•s- • ~' an.o~tur-to use tr.o eontouc.ot hoarosy.-by erother articlaJ ; . as diioot tvidcnco. ,R, FrM.D_ Judae,* it is olrered ixr.dor the .1 J '1....:.-µO.. w. . . . ... . taviliar rule that on redirect e.~crLrtru+tion you dan read the ^ntiro oontoxt of the ar~iola that has been road from on crosa-e7zareination. 7im C4IJ:2Ts You car,not raaS the entire context as X undoratand it, you can road aor.n r•ors of the artiolel,t a fair nnu icpartial presentaticn of the article hnrnOt boon r.adu ob orosa•e=r.3r:atlon. You can go into a11 those i;.~son bt!t you cannot Go into phaaoe which bere not toc:chb4 upon in the oross•- exaair.r.tion. MA, Yes, sire fiNE COMITs Nots, i!' th* portions used uere too roetrictivo, you ray enlarge upon that, but you ean't go into dliforent subSect tatter& vm. T L : That is all I ir.t.end to elo. FA. H.AROY3 If Your Honor wi11 exrnine tae aaoxt quoation. t+~, Pr.Lns If you will read-- -- }R. H1lNAYS That Is Nhrkt I'ecy. -- Zt•you_X3Y1~ _. " ' rcaA tho n~t ~ qu~: aF t~n, Y~ur Ilon`~r hX~=' _ __ o. a ~: ~+tor1 aa 0i'.0i h-) r;~! ch tn t;:#% d4".tor thera 3*0 Tint I a

4ow I 579(84) ---- ----- -- ~ larynx in toa.in mr.i cowltry, one ru;sC coneider : ~ sevoral pocaiblo factors, nanely: as Moking habits= b, favixitioa for diagnosig and traatrr;entj c, age dietributi.onj and d, ntraospherio pollution. CancE+r of the larynx nppoarg to have bc4n unatfected by the great inereaso in corasmption of tobaeco in both sexes in the last twenty yQars,# "AIStMRi Yes, he did say that. "QUMmI0i Yes, sir. "pITSIMs And I reme:;bor that, strarg0 as it my sgem, aron,st all of the artfaloa. He did say that. In roviewinS this litoruture you don't act as c3ditor, . . ~.' I don't wahe any ntatervent ehout uhether I agree or. disa,,es uith what the author has written, I virwply try to get it condensew No that it wi3,] =ke it easicrr for . rq collea.Huea to find it in the literature,. "QUESTIC7s Yes, I ur:deratand -that, but the point I an Otting at is that 3n your r8v3.ew, ia it not a fAi, atatemcnt to mke, that up to and inaluding the year 1~52 tho~ t-as a co:~p:cte epostasy or litoratu~Nb that related to any pasBible Bu,r,,geation that smokitig eigRruttes uas a causative taetor po far as larynaea.l c :ncor in conr4rnod4 . " ANSWIM! U.'Cll> I ktiCtw that -ifll o?7a of our don' Ll ~.now ti'°~p+:y >• ' h±s iti Oiat y~~~a C;" n;: ~•-~bvt 0 N O cc ~ P N P I

579(114) "ANSir1ERt I put it this way, I said I look into the hypopharynx to see the larynx, and it projects upward from the depths of this hypopharynx. I can't do any better than that. "QUESTION: The hypopharynx, would it be eorreot to say, that the hypopharynx is that portion of the throat laying below the laryngeal inlett "ANSWER: No, that is not true. "QUESTION: Can you refer to any portion of the .anatompr that would form, or portions that would form, the upper boundary of the hypopharyn=t "ANSwER: Yes. On the lateral wall, the side - of this hypopharynx at its upper boundary, I might place and I might put in here that these are my boundaries, you could get ten other people who might give you dif- ferent boundaries -- nW boundary at that level would be the bottom of the tonsil or the tonsillar fossa, the. place into which the tonsil sits. The place where the there are pillars, we call them. Pillar one lies in' front of the tonsii, one lies behind the tonsil right at the bottom there where it meets the tongue. That is where I would say the upper limits of the hypopnarytvc ,s. "QU$STIONi k'hen you refer to pyriforat fossa or to pyriforrn ginus, srii those terms interchangeablet o N "ANSw ER a They are. ° d O% ~ O+

579(63) cc nt: n ticn by : eadir,o theEte qu©gtion3 and anawora. M, HAI=s Thank you, Your Honor. ~"°!iis to crosa-axaryination by ki+. Oliver on contention is and of courae hQ ui].1 not waive that TIiE COM Ts I think It to clear H h.at your this case, that xt Is a cancer of the larynx. ::~-_ behaaf d the dQrendant, Philip Yorrise pCRMS iXAMNATiCA (Readirg) s k~,~d for identiPication BafenrJant's bit A*) "QUESTIMs Doctor, X haxni you a photoatat14 copy or an exticXe written by Dra. fdyan# YoUonal.d $n4 Devine, entitlvd fcra.%gca in i,ar;n;ea1 Fpithe11M." In to d,",s De~ ord-Cortain Oth~r Faetorspi and aak you If you vere not a oo-author of this article and that the sama t:aa publishc3d in the Yroceedin,s or. the Staft t=:Qet3.n;a in the h'a+ya C1inio on January 25i .1955, vo1u..:o 31, on pagea 47 to 524 b"~ :'~• Yea j IwAa. vw!.~+.• ~ "QLWTrCH: -ldow I want to dirsct, x3octor, your ps3rtic;clar attention to the last paraSraph xr~dcli~tQly .b4fore _tho~suar.~~ry in wh.2ch you stated If sqsv:mous :aotflplasia la a any relationship to rAlir':ul3at dir;=;a~~: then the oveoi~'~tations

579(113) I v4 with reference to the laryngeal inlet! "AMNF.R: The laryngeal inlet really has -- that* term could mean iniet at the level of the true vooal corde, or it could Yaean the inlet that is bound by the tip of the epiglottie. We will describe those later, I suspeot. "QUESTI4N: Yes. I a:s referring now to I think the one I mean is the tip of the epiglottis, or the inlet is where air would first enter the larynx as it went troa the outside on down toward your lunge? "ANSk'ERs Could you repeat that question? "QURSTION: Yes. I wanted to -- with that understanding of what I mean by the laryngeal inlet, I wanted to know where does the hypopharynx.-- where is it located with reepeot to that? "ANSWER s Well, I think I might put it so that someone -- other lay peoD1Q, for instanoe, might under- stand. If I wish to see this inlet I must look into the tiyDopharynx, I must look down into it, look straight down into the hypopharynx. Somewhere around the bottoa of this hypopharynx I can see the inlet. It sort of sticks up into the hypopharynx, it projects upward into It, into the structure of the hypopharynx, "QU5S1'IJtit In other words, tbe.tarynx itself le 2ocated in the hypopharynxt ~ 0 N 0 co v m ~

579(ioo) - tend to expluin eny rndttor that :aaa inc.uiredabout on croas-extr.anation, and furthEr the question is leading Pnd cuu,r,oative E.nd it calla for her.rsay. 1.3. FzMs Xt is on the verti• aubseet. THE COMTt Of couruQ tihat i.a atated in theso articleA l0 not cubsta.ntive evidence of the facts stated. It Would or.ly be a lir:-iterd typa of admissS.on. F»t. FI=s Yes, sir, c.r.d it is off ered un4cr the olassical rule of evidence on tho rediract exnmint- tion to ahow the full context and the belie.° d the author that the r;,-.n was sought to bct iropeached with on croES-exar-irw tion.This is on the very subjeat they cross-".am.tneG hira on. Nat, aARWs This clasaiccl theory, I differ 1 LL t~~ T711 ..V .d 1...L 14V + ~ .t {.'..A~., •A1• Ae1HMI'~~ A~~AtA R1Lil !'..t', i 1t7.LU V1l ~i63uV .~u) i.~i vsa..~i. artiol6s from othera that ara not present to ba cro3s- exar3imd Qi.t2:er on direct or redirect examination except to the extont that on crocs-c::arair.ation, in the guia© of irtpeach:Jent, thoy teptgi`y to souething and it tonds to olear up uozo Wrong iraweasion left on cross-exaninaticnp or tends to ex plain what was gofi@ into on erar,a-eaar,.ins.tion. 1;v:v, this doosn't touch or co;:ccrn that aort of tbin,, at:d i£ thia type c,uflntbon and re*tan;, from a~:,ttc1©s in go,-mit'ted in a?ao1', thnt io, %a:j di.rect ovid3l.ce, c~ wher by platnti.ff

:579(95) cause of larynsaal can4er4 "fiJdSY:Me Zn 1952, there wasnt t enoucph avail- aule liter-atww: :or z,* to moke a dooision or to draw a scientific conclusxon whether or not emo'ang eausecd cancer of the larynx." That is the end of the croos-wtarmiW-fioy. tA, FI= (Rt3ading) t ~'RMTttECT EXAAj2NA'fI(3N "ZY 'Sm, FlUDt "QV"~.5TICNs Well, itsotj Aoctor# 3 want to go baok nTA to the questiion that he aakQdyou--do you know of anyone who has said that cigsrette su3okirrs Hae a causative faotor in proc3uc4ng laryn;eal aancer prior to 19,52, ansM your ane«Qr waa, Il1ot at this timelt "tN5w~~: I dOn' y illiiiit Lnttt wn8 i: hc'~ cju':6tl ~ he put to c*. "qUEST1O3d: rYo3.1, hmt do you ronombor the qucstion4 ".1,~ sTh.i s i o what X remom3or, Ko asked fz%A It Y tAd 4n.y....from the literattre that was ava3.labZa in 1952, could Zmaks any scf.cntifie optr.ion whether or jiot aanc:Gr of the larynx uRs cauaet3 by atrtokinS. "QUE,'3TIOi3s Yeo, I rtsn'...-aU3-r he acks'•d you that q u,tiiun. :3ii 1 14 tXid tfl.t3 ;x,,~nf; ve3 tbQra i~*1.(mtifio

68 r u 579(10§) what you read to the jury, 1.91. HARAYt That Is the point. F•9t, FI°Ms Don' t wave your arm in my face. (Reading)t "Therefore, to answer your question, I wi11 agree that Dr. Vallner stated in his $rtiele.that atatistio$ relating to chro::ic not-sp3cifia laryngitis in Its '~R. ~'Ir~l P1esFe do:i't intQrrupt r~e. Or I might "ant to read the f irst Y2pagea over. I am reading relationship to umoking, aoeurate statistics are not available,' 2toup dudge, that Is the very article, at the very paEe, that on redireat exan.tn&xion I now sought to shew that the mn dXd exprass an opinion on, a broadly b+pecd optn3~?n on the wide exDerienee ot clinieiano in smoking trat e;:aeasive snoki.rg cc;uses cancer in tha lrzryr.x, the very author that they t;ere usirg, and that is the very purpose of the cross-examination,, that that rnan bellevc2d that andbelievQd that as of the date of his articZe. TIM C4URTs ii© can state what he believedo but thts Isreadins from the rrticle itself. A::R, n.T,Ws That Is correct, that i$ exactly r1_gh*., and then of course you ask the doctor do you a;;rQe wit;t •ahut the ruoxt nays in the artlale, and of ~ 0 ~ 0 CD I ~ %J o% -4 t

5?9(115) v6 "QUESTIONs hnd what are the anatomic boundaries of the pyrifora sinus or pyritorm. lossat "11NSWLR: I have a reprint here of a paper we wrote on cancer of the pyriform sinus, somexhere around here, and it I could quote from that -il I could get it, it would be easier. "QUESTIONs Hoxever, you want to tell ae, either by referring -•. "ANSWERs I would like to get it if I could and it would make better English. I can say it Quiaker. May I get_ itt "QriSSTIONs Oo right ahead if you would like, i1es. "(Witness leaves the room and returns) "QuESTIONt Well, can you tell us 3uat what the --. "ANSWSRt Laterally, the boundary of this space is formed by the thyroid oartilage. Now the thyroid cartilage is a cartilage that forms the laryrlx, is part of the larynx, it is one of the aartilages ot the larynx. Medially this spaae is formed by part of the oriooid aartilage, which is also a cartilage of the larynx. The upper boundary on the medial side i• the aryepiglottio fold, which is a ridgR of ezuoosa xhioh extends from the epialot*.is tu the arytenoid oartilage,

579(59) ' 3 23''r 3m, mHUYs IP the Co•art piease, I uiil - , <~.-. :- .__ .-.. - _- .... . _ .. ~ 0 `" objoot to that for the reafion that this is a oRncer, of the pyri.foxra fossa and any placs that wouid inolude larynx tsould only be of the e.xtrinsio part of the throat aroa, ardthat this does not be.ar on the iseue in thio aaae, tho 1.m•ynx EEnerally. t.T, nTEWi The to3timony of the dootor will ahoa that it ~ot~Ly, `vtit Vi a o~ai-iw tiav dootor yoatarday oatoblishos that as part of the plaintiftls prrof, TM GOVRT: Z think that is amtter for the jury to deoide, xhe objection is ovorruled. M. pi=t Yess sir, "QU~,-~TIO;Zt Have you had publishod or participated in t,aa p•ubl~.ahirg as ono of the authora of 6ay treatl.ses or pagars on the subSeat of the pathologie 1 effeots of sraolana on the Jarynx,O Dt>atorf ~1~#tSt'~s Yee. j "QUuSTlONt it so, vou.ld you ©tato to the court the nature of that papar and Mark# and by vhom it Has publivhec'!* and give the date and the vol=*ai4 a o i'orth't aaa pub].ihhed ln the A. M. A.* that is the AmerieAn V ,edical Asnociaf,t&l;1'.r4hivos of PatholoSyr, Movember j S i a I ..~ ~ W ..+

579(106), ------ -=-; eredibility of the witnesa and- i'or po9sibTe itl&achment ~:-:,. --~-- - =- urpa~ea; we::-get-_to~ the plaee <Hhere a:~party cttay offer a witness and either set him there as a du:amy, read books to him and say, "Do you agree?" that is all hearsay and the other side has no opportunity to cross- examine that witneaa that is really csaking the atatement. The only thing we can say ie, it really does say that, and therefore I don't think that It needs any citation of authority or, for that matter, any further consideration. Your H;:7nor has already indicated and I think we ought to finish up with this deposition it we could before noon. l:R. FIELDt Your Honor, I would simply like perniesion to supply the Court with some authoritiee. I believe I can do that. Tf1i COU-rtTs The Court thinks it unders tands the statue of the law in connection with the use of these artioles. If you want to submit an authority thnt might be different from my indication I would be glad to take a look at it. 3ut it isn't the intention of the court to allow theae artieles, a nuaaber of these -= articles to be introduced in evidence or to be allowed i.nto evidence even ur.der the theory of teetitt$ , credi711ity of tihe tAtnase; i W1tnE73s i.'q31r.xy ',hey at'@'~ils:'sGLKi3 ~J Li`At~- and_iof--OaLTY'Se -- - .~

not say tr.at xt la "~dr~ltCed3.y -hAzard_dust:o -rtely 4hief ly : , on cliniGC:1 iapa-essiona.,_buM novQrtheleus if observed . ... _ -= - - by aautious arid oxperi.e-nced investig ator' s, auoh ~.n~ 1-1611yr-oS:i1oa.3 do ~°.~'~ :'.Ae as L.' clue or at l~•'ast a BtELr~'i~.n point for mor© thorouc' o3ingaal otatistlo8l inver~tigations9 "A?:51:zal Yes, air. "QM"lI4N: So that your own personal obaaxvra-. tiorbs as a aurgcon,, you uould ba the Pirst to sa,y j would not constitute mdical or aciQntific proof-»I think# as you put iti--of the conclusion that smo.dng Oxgert3ttoa could probably oEu :Q 3.aryMeal cdr:Cer4 "AIdSIMts Could you Just repeat the last few uords thero4 Wmt isthat agal»? aQfESTr~-_'~t Wh+at I e-Ta try{ng to get atp Doator, is ah©ther olinical opinicn alone is all ot' the data that should b3 eoraidor Ed before an opinion can bo expressed?" PR. FSEIDi You don't need to read that. t.M. MUM I Ki^2 get the W:estton tat vas finally anmierod; "Mmt I a© tryir~; to got at,* rio4tor, is whetrzor alinical optti.ton alono is all of tho data that should bQ oonaidored before an op3.nion oaKF~! exp-rs~aaod4 "A,2T S"uRt 110,0 rot r;y owcz vernonzl

579(117) "AtiSWEtS They do. "QMBTIONs Is it also true that the pyritornt sinus has no ttiinotion as far as breathing or renpiration is ooncernedt "ANSWER: I don't know that. No one does. "QUMSTIONs No one knows whether it does or doesn'tt "AN5'WER s No. "QtJEiTIONt Do you know or any studies that have been made in the solenti2'io world as to whether or not there is any respiratory function or a iunotion itt the breathing? "ANSWF.R t No. "QUESTIONs So that Is it tair to say that so far as your knowledge is conoerned, that its only function is in, as you have desoribed or as you have aareed, with regard to the swallowing prooesst "AN3WEAs Yes, sir. "QUESTION s I don' t know 'that I asked you just exactly this way, but xs my understanding oorreot there is no experimental evidence that it has any function as an airway organ? "1lNSk'ERe I don't think the question is proper beoause it isn't an orgRn, it is a spaoe. "QUF.QTI4Nt kell, is there any •:xperimental

579(122) - thex~oin st•a;.ed orh:avir.,g any probative vr.luQ oP the fcots thersin statod. FMA: JurJe-a, Zwant to rofQr you to the aros s--exar,ination at Me 60 uher$ they i'irst f.ntrodu.coJ tho articlQ by Ur, . k'aalmr, Linden J. antitlec3s s&mokcrte Iarynec, 1 and whore thoy In the cuccoeding Pa&OD arosc-examir.cd him fxvrs it und rssked hin about Varioue thin„c thct the author had suid 1..n this a.rtScXQp amon3 thcrs boing th.t aoaurat© etatiutio$ rcre not availr.blo on those conditions of the laryrYx. t1owi that contea.t Vaa lef tvith hisn, and on pogo 64 thay ta2kod about--"Z an naldM in th8 aen3o of otatiatice aa to rolationahiq a13a-6ed or otherxeise botweon patients aufS'erina frora 1a.tyngeal caneer uho had vmokAa "t3"S3i~TRt I dontt thinl~..* `M COURT s Yoa, I lcncr.t, c.nd t~o only issuo involved in this caso vould b3 thti ore ot notico to tho derendant a3d thox•o i.a certainly othQr and battQr . csvi.dnnat3 that eould ba introuuood. P:R, Fxf'Ws No, Jud;e$ tihi sisn't on that subjeot.Tla.ia In Olcn thay wro ax'oru-oxamining him from thxe Arti.clo eecking, to loavo tha iri;reuGion Lhat the on1y thing that• tY:a ieutl:oz• had In tixa tq•tic:l0 •~ ~c r I ,

579(107) the Jury u ill be inetructed tr.at any clattere stated in these exticlos are r.ot evidance r:nd not to be considereC ab evidenoe of the r.raCters stated in the artialea. ,hey are only to tewt 1:hQ oredibility or qualificationa of tha witnc;as. Tik.t is why we are getting into a field that ia aowKh.,4-t senaitive porhaps to both oidee# but the Court U goSng to tr',y to move caretully in that phas• of the aa3a. It you aont to subnait arW authorities you may do so. ue aill raoess at this tire until 1t30. Mrbesrs of the sury, as $tatedq we will recess until 100 and then re$=er dnd hear the case further until 4 ofoloak, at irhioh tir,e va will rscaRea@ aqpurn for the day. Again the Court.4autions you not to discuss this csse amongat yourselves or with others or_21Qten t4_any_dxsouzsl.on__of it _or_ r®aQ_ anythbag about it. Court is in rece$e until 1o30. ~Noon Reaesd}

51? 579(94). ~ uo dtotinguianc:3 Prom smoking oigarettosY I will read it to you, His sentenae- 'But theco 3ata lo rhaw thet the oigar atid pipe smaker haa agreater ric.c of dQVelopint; oral cavity and Iarytuc Calloer.t "QURSTION: Yes, air. "Ntw;MRs And if I Were ieviewing his artidle IwO•.:ld qi*to t-v%t as it is, I would r.:Ake no attemptr to a&reo or diaegvee with him, or to inquire too ruah about how he got tihese statiatiae, "QU~'~TI~Is Do you lo-aGw the date that the t'ynder• Bross axtiale was published4 ' "A.2a: !XIii The one ue rAra referring to now, or th ono thct--? "ntrMq'I'n'dt "he one ;n Wh;oh he published so~~s figures aB to the incident of»--1956, I think is that date, januttry o-Pa Fc$ruary, sSiaWAy of LelviY•omontal Facto^s in Cancer ot the T«^xy»x, ' Jraiu.ary, Februaryp 1956? "p.a.~i~`'{'ri I ~s°~'p 'p *~.3 ^binntiLrn tto t?:A~+# °s FeS' •wa •a... w r v v . .. aa I kozow. Imi11 take your word for it. ~CRDSTI4C: s To your know1edga, 13ootor, was tl;ex*s sufficient r.raOicaa or scient;ir3.e datR tcvaiXsble {n the y cs;r ~.952 to et:ablo c~ne to clraw any. aciontif~.v ~ o . , O .,s i,o :Aht:t,tii:r r oigtrettns ia a p:•obnh3el V O P .

4 9W [ 579(1fl5) ooura3 h© sayA he dooo, Ti~'"t3 COJitTs. I atill thinlc that i.s going too lar afield in roading the aricio7©, and it brings lt out of pronor context with the rain Issue upon which the dootor ia bt3ing intorrosat;od, still for purposes of teatirg his quaWfications. M. y`X Ws Judge, J:P the Court hse wy quoation about that I don't want to pursuo th3 matter with Your Honor ur4uly. It we could tak@ adventags of the noon hour I would parhaps likko to got comis authoritios to tito Your Honor on this QuQStion, botora you rule, MR. h1tP,DYs Your F.onor, inGotmr asM-are you through, Yn Fi©ldt t•M. PlZ:vs Yoa, Ijust uanted to ask that quastion, it toForo you rule it, i.f you a.ra in dotbt# if you could givo us joave to Vtyou aom* authoriti®s for you on this cuvjcot crvor tho noon .rcoeee. t.:Ft. HMY: riwi r:ay I speak4 Thank you, Cta this auhject, Your Vonor, 1 t, dooori't tal,4v-:'.y CitatiLa of authorities to knaw that vaeo tho door icop~in-os for a p:rjon to xoad at runcjom the context of nrtloloa _ by P-nauthor who xs not horo to ba arofia-©xa-minsd, and ui;il.ko tha OW6.-aelant or ?n r4 siitn;tot03, tzse n'lainviff, .4ho is u: 0.r.8 ;sn-_ ; r. tl.eton to t*?>Yt the ~cryc:~:lod;;+~ and

579(65) Y patholog3a offocts ot-.#iokin3 on tha. 3arynx, and vo did not talk about Fihothar or not this would go on and r:a2ca . .. __.., _ canQer. Vre'i,ould have no proo~ that equanous -Letaplaaia wi21 z:~alco oame; of the larynx, pQUE:;TXCNs Yes, and that ia exact3.y what X say, that as of January 25, 1956, at the tirn© that you - .wroto thl.a artialo and made this atatvmont, you were not of the opinion ua of that tir,1o that the emo'xlr,g *f oigarattea Nould lead to laryngaal ornoert "AN3M-i iio f X wouldn'tvay that, Xwouldn't say that xvaa not of the opinion at that t4.net we sitaply didn't etate it so in that artiole. ln that artia2a tia w4rons tta11:ir.g about cancer of the laryrix, •~_ ~- L a..~....U s.. wia~wr.'1w..+4 k!! ~L5MtMl. we tteI'a~ zw~l.i'.~t`y ~VOUi+ ~:,~ts~e::vuts_ ss~svGyauas. ~.M .4 t..r. wa•. v.•:•, Do Y rmko rayselr c3earf AQUFSTIGNs tdoo it dooanlt. Doatorv the reason it doesn't im becauso--l.f I may have PlaintiPtie I~thibit 3, that your rirst Etudy of which tho socond uAa a 4ontinuation, is that not a fair atatouont.tho wecoMA more or ? Aas inspixod by the first? "AN5:4nRs I think you are talkinZ about the saa-~e study, are we not2 You ace this publiaation you are talkJn g about cimsort of an intramural publication--, a Dublipatior for the ru~.bera of tius-_st.eV.._, aalled tha OProceo33.ngs of tho 5taff oP t,ho r'ayo Cuniot~ W %4 ~ w ~~

579(82) - L ! 11 and ju].~ of 1958 the tres,Endous nur:ber 457 c:.: i:iclcs, ~ of fi'33 articlesY "n1SWMi Ye4., "QiIISTION: t+ow then X will ask you, Doctor, that if it i$ not true that prior to the year 1952 there was only o;.a artiale that raC3 my roferer.ce to a posalble relnts..onuhip between tobacco and 1,aryr,geal canoorY aANStMRs How could I an3war that questiont 11hat kind of ammory ruust I havef I rzust, have a photo,-,raphia aand if I could possibly answor that quostion, You just got throu,%. telling me how sar~y articles I ravieuQd. How could I remembor what each ozjo «a s ebout t p^..r_..,{yS Y A,%. nr, a y • a. ._.. A ., s tti~jSSti7;'i.vi~ ~ ,,rJ3 Vtit ~ No1i~,t~ a V t ca r3D~t yGu'~* uhiuh related to tho oaji:or of tho larynx4 "hN>'6IRs tn l94~4 rocolaeation to point out-•-t . pltNSFaRt You mvat have aomsth3ng' in m3nd. ~17 don't you tell rio and I111 seet "O.UBSTI4Nt 2 wiil, pvrReotly. And I said, exeant ror Qna artiaie, and idontiPied the one article, and that in an artiole written by KennaY;ay in IYglando `°QUr".STI0Nh In 1951. T:avo • h;:ro cXte by .;~-......,-hl. ,. }r;. ., ..y, 'e?',..,.{.'^ z' .t".r j 11.4 . :. Of ~'!a. ~' 6:Javvr.r~~~ ~,~:~~,r'i.~.~: v ~. P Ln

579(108) i AFTMtN4W SrrSiQN, T}iURSnAY, .7UNE21, 1262 (Colloquy off the reoord.) MR, FZEWe Plaintiff aill now state into the record that ht to at this time not going to offer and read the ob3eatedMto matter oomenoicig on page 8.5 and running through the top of Me 93 of Dr. 1k]vine1e first deFositions and is reserving the right to offer that next yiorAay it authorities 4sn be in the meantime submitted to tha Court, and it to agreed that Mr, Hardyts objootion to the last questton on PW 93 and 94 may be entered as horstofore made to that queationo tM, HARDYs The queution that you are about to read, my same objeotion as tmade before to the hypothetioal question will be entered, i1t, PYELD s Xt ray be so agreed. THB C4URTs Yee, that is agreed, Va, FMDs Yes, bot;tom of page 93. "Q=rY0Ns Now final],y, Doator, with reterence to the basia question that X asked you oo direct examinatian, so that we will have the whole context here alearly before the jury, after this long crosa-exaz.inration, is t:hcre aitything in the cross• exam.ination of rtr. Oliver or any of the iaatertals that he brought to ;our attention, i.ncludir,g raaterisas lro% ~ ;<<v G clnues31o3's+l and -.t2:e`.•s' that hrv0 4aLtDed

579(103) > l~.~yn ;e~l c~.ncer, ~ fiA~'.~Yi ~ :~"nat~ ig rfot' a_ true _~tate~:ent, 71i3 COUITs ~.'hat In not ^subAarifive'evidenaQ,. dL~eet you.^ sttention to page 64 ot their aross- examination, as zhviin in this ver y depositi.on, 12. H.ODYs k'hiah is what ho w.do YsA reud Wq, F~".: Xkrncw tY,.at, Judgc, but I want to that I tried riot to rQad, Ma, FW-s plcasa don't inttirru~pt re. X didn't interrupt you. This is their eross-ex~z~d.nnation. "Z aa askliis 'ln t::e sense of st-atiafiies as to the relationship alleged or othez-•ri se betmecn patients aufferZ r.,N iwm laxrjngeal cancer who had smokod cigaretitos. ~l.%.nV J~...lb a{1~~AT~ ~iAg ~'Wi~.'i:bi~. VAw .w~i..v. reftsrring to that. I think that h3 was refQrr ing to statiaties regaraing non-npeaiFie laryngitis in people who have scaokcd excossivoly for years. Ho says, 'Accurato statistics are not available, but chronic not-spQaifia laryr,gitis is certcinly very prevalent in indivic3uals who have smok®d ,, , t He aaya, ' accura stati.stiea ara r_ot avaiiabl,Q,' I's,t?ti L;11 ;1~;~~;~ UVex` E.sa1.ri~ ~--_

579(129) ,10 c disaZree with us, or agree with us, depending on their way of thinking or their school of thought. 2 have no disagreement with them in any real sense of the word. We choose to call oancer of the pyrifora sinus as part of the whole probleat called cancer of the laryns. "QUSSTIONi And is that generally true here at the Mayo Cliniat "p.NSirERr That is true here at the Mayo alinie. "QUF.STION= And it then gets down to a matter of terminology? aANSk'ERt I think so. I think it gets down to the fundamental problen of trying to define an area that is difficult to define or to lim.tt, to loeate, even to students of medieine -- that anatomical students who try to visualize and picture it, where it is, what it is. "QUESTIONs Yt is not a part of the laryngeal airway, is itt «ANSWBR: It can be seen with the eye when one examines the patient's larynx. It is wide open. It' aontains air. "QUESTIONs It is not one of the portions ot the general area through which air is transraitted through the larynx and to the lungs ultimately, is itt "ANSWFRi I suapeat that air eddies and whirls around in it as one takes a breath or exhales. ~ 0 N 0 a. -4 a ~ ~

579-87) st;aL-ea:ent in ' 117»-I unUeratend that you did, cirt "~?33:~Rs I put it in our reviea--in tha revieia of the literature on the eubjeet, and I put it in there so other people suight road it and rzk4 their own opinion$. I carei'ully did not put in that artic],e uhat ry opinion wac. 13obo9y wants lrq opinion, aspraially,'~ A.R, FIMi The next queatxon waan't answored so you ngedn't reed it, YR. WtbYs on paZe 72--tkiet wag the portion that I suMosted not readin3, but I will continue 'With the sarte rQaervation. (aeading)$ . "MS2IC;3 s?.oti m oxplain what I have her*# becaua© you axproaaed a fafici3.iszrSty with l:onnaways' artic2e. I did not go throuyh.the fornality of the r,uz,b].o jur.~ilo, but thaae carda, sir, r.re t3uotatinne frozpartioular wodi,cal articloc. Zf you would like to to see a photootat of the original of the article, I will be glad to drag it out and let you. "A„8:;11ts Could I do i.ti* pl©aae, and look at it, $ince you arQ going to talk to u© about it! "QUF S"11I4?3s Crrtct?u11y. Mm for the rcoordp I ri;v r,arxdixag tho doctor a Weries of photostatts of these artiolaa Sn 44htch th3 31i5vsririn'a card ie cttaohO ;c v'~nd tho intieft-1.tel"Y flrter, . .... ff.. 4

579(57) 1W s _' ana-ci©: eda i do._ ^~~y, t~:a,ur;ti, .~;ilaL__ -tiio :WeiZht artid value overrulo L'no o'ui'totiori, and ai-110,4 tHe. quoution -to b.9 of J.'- ' utA.-~~ .~M •A 1 . C~-'. ...''QF~ `!' ~ M ~N os ~si3 iljiyc3wwy~vu~ q:~~t,tlo2~ ~~ . e!~ «.~,...C:..- .O.- ~i 9- JI2:'y, to decide. ThosQ ar o pi apt:r pointa o; arguraent to tha jury, on tha queytion it3ali'. XR. PIRIDs T'nen I M'k not goSr.s to read the n ob3co#:.ion that vau ma.de at tiue3 tiir-a : IA.4. :I,.t"Ys Iwould 13.Ice--X beg youGr paraork-- I r_egtsctvd to pux on© around of obj©ation .`cn that nhouad b6 in the tocord, Your Hor,or, 2rYi that ia Por the furthar reabon that Dl , De•vine is not ahown,as a prESlimins.ry or prercquisite to givirg an opinion, to be qualified to exprass arc3ical and scientifia opinion on this sub ject, 'i'here tsav no bao•cr;,round given for hita that would entitle him to exprerie such an opinion, M GEMT: Abjertion ovorruled. t=R,FIUDi Skippina now t o pa--~ 43, Your Iionor, and b~°, H~.`'dy, I proposo to read the f3,rst comp2ete sentence, beg;innirg mith "Ix'," so the jury will have the oontext after this interruption. IsR. HMY s All right. MR. FI=t "It you viould 1iko ~ to repoat . that aosb por ti.a), X ri11, bul~ the' last-_portxone~~-~-th~~ - ~, ° --; q?;ecf:ion l.s, do you r.pvo suoh ~~3=apin~ . .,- m pr::~~3ilaE~' Ross~a Q : - - ' - - - - - - ---- - - - .. _ '-- - -- -- ' --- --. .. . _ _ --------- -- --- --- -- ----- _ . . c. N ~O

579(112) .s called the pharynx and that is a big plaee, and you said ~ 'And this cancer was technically in this part of his i pharynx, hypopharynx. Hypo nsana below. I don't know ~ whether you want me to bother these folks with hypopharynx nasopharynx and so on,' -- and then you were told you didn't need to unless they specifiaally asked for it. So I would start at that point. Would you please tell us what the nasopharynx is and the oral pharynx and the hypoPharYnxt "ANSk'gRs Well, the nasopharynx is that part of our tube or cavity that lies behind our nose Just above the palate. It is the cavity through which the air travels when we breathe through our nose. Into this cavity the two ears open, one on either side just behind the nose openingsj hence the name nasopharynx y- the nose part of the pharynx or the nose part of the throat. You could substitute the word pharynx for throat if you wish, call it the nose-throat. I think the other words you asked were oral pharynx or mouth•throat, the part you see when you look in your'mouth in the mirror--the caouth throat or oral pharynx. Hypopharynx simply means something below, the below throat, the throat that i• beyond or below your line of eight when you look straight In the r,aouth. N4EMP'1G1ts tihere is the hypoyharynx located

579(116) 1 ii which is also a part of the larynx. Superiorly, or above, this space looks upward into the throat, and interiorly, or downward, it passea down into the eaophagus or gullet, the swallowing part. Posteriorly it is open, it fades around to the back of the larynx where it wili swing into the opposite pyriforn sinus. I think that would form the boundaries of the pyriforrA sinus. It gets its name tros the word pyramid, whioh means -• I think you all know what a pyras-dd is, except this pyraadd is tipped upside down with the apex of the pyramid look- ing downward and the base upward in the throat. "QUESTION: Does it form a aort of a thing airstlar to a tlunnel to the eRopha3usl "A.WSWEtt It could be considered and is considered a trough or a lunnel through which food is diroeted when ee swallow. "QUgSTION: Insofar as the t~Znction of this pyritor.u fosea is ooncerned in the swallowing process, whether it be food or liquid, ia it true that on each side, the right pyriform sinus and the left pyritorm sinus, serve the function in the swallowing process of aating as a tLnnel or a trough or a conveyor belt or however you want to describe it, to earry whatever you are swallowing to the esophagus and on down the food traat! OD m

44w 579(80) _ • ; r. 'from 1947 throu„h 19Y.)t jhccurate ststiGt2.aj bro not Avsil4blo, but cshronio not-spoeifia xz;ryrgitis is certainly very prevalont In incfividuals siho have sroked ...~ He saya ' accurate statist{cs are not avsilab3e.' 3'harePare, to answor you_r_questiono Z_ will agree that Dr. Wal2ner statod in .,. . hia artic.3 that statisttes rA'!ating to 4hronia not-sp--oifio 3ary-ngitie in its relationship to amokingo acourate statistios are not ave.ilable. "QiTESTID.T~s All riShtk Doator, I taant to go baek to the artiales In whioh you have reviewed all of tha 3itorature relating ~o )riaurossn$,o tumora of nose azxM throat j is lt not triia that begirnf.ng with thA -.: literature 1n 1947s I bolieve, that you have either written alone or have been co-author of a serie$ of artioles which have suu=arized all oP the literature ~ .. ,~. . l~ .. . . , ; "A2-I9'Ms Portaining to what 'Pieldt To nourogenio tumors of the norse artd throat4 "nrSM-1t I'o, that waa, str.,plv an ertic?e wrltten' f Yea, air# I"no Ss now der•eaaad, In whi'ch hA. . vith Dr. Gordon B. Pew! .~ r ~Bi.~~ply xookea ~::;:o~:.~,) so~~o fileg In our f.:~s#~i.i;-ition in •. hapj fvj:,ora that. hjd t") do with ~ a w a m V r r ,1

~ 579(71) L purpoao, that you 0 onoludecl th~t ttic iara firn;ing of an added thickness to aquaz:ous -Wtapla-a;Q i1as not proot` "QUcST3C~l: Yeg, Sir, ar.d It Ia ' evldeiEi4~~b~=°-=~=. -- ------~~~.- RANSNMt 27:e point ia as of 1956? could rr•ake suah a statev*nt addxtional studiea would have to be undertAken to add to the r-edical knowledge that was then nccuuoulatod4, "A2tSw,-z*jj We aade the etatox-ont that turthar studies should be made by other p3opl© to yossibly en3.arge upon our i'indirga, or to coo if wo xore oorreot in our findi.rzgs. And u© wQre careful not to make any real firm statemonts about what ue foun4. We xor* r-~:er:ly ask?.rzS for other proplo to follow along !n aur tootsteps, or go along with us$ to " if they could find out soM~~ of thQS4 thl.tgs that wQ had 4ov?zd out. "Q rz"TZ4:1: Yes. And that i s tahy f tvhen Y asked you try first que3tiori concernirag this articlQ, Y inquired in eub$ttnao, sir, that as of January 25, 19J6, you had nat fomed a saientxfic Sudgr-yant that s~-oki:.g cig<e~-~•trwt it was a wvd;c~3 probabi~,ity that srokitg aigarottes was a oausQ of laryt;,Qal oari4ert in and oFi te©lf ~ i:hat"there was a iralationship batween cwoking a:~ lary.weul ca.Kcer, but that before ar+y one what you naid vhon you pur9aah;:d i'or --th_o . N ~ world c±il tsist dnte? d ~ F la:

579(122) "QU-STIONs Now you said that you could tell me someone else r•ho oalls the Dyrifor4 fossa a part of the larrnz. I wish you to do thati, it you would, please, Sir. "A?JSWERt I think I read a book or know of a book written by a Dr. Ackerman where he described and wrote about oanoer of the lerynx and mentione4 pyrifora sinus as one of the locations for aanoer of the larynx. "QUESTIONs Is that Dr. Lawrence Aokeraan of St. Louis! "ANS'WER s I think so. * "QUKSTIONt Do you know of an.Yone else in the scientific world, other than Dr. Ackerman, who so olas- sifies itt "AHSWER: I can't tell you offhand right now, but I think I could get eorse articles or reference in due tiae in the library. "QUNSTIONt IsnOt it true that anyone who refers to pyriforat fossa as being any part of the larynx, also distinguiahes between intrinsio and extrinsio larynx! "ANSb'ERe Yes, I think that that is generally so. These words extrinsic and intrinsic have oome down to us through the years. They have been used by so many different men Ln so many different poettione. Laryngol• oglsts in writing about aancer of the larynx -- they

579(120) "QUSSTIONt Now you say that you susyeot that that is true. Let me ask you whether or not there is any experimental evidenoe to your )moxledae as to --t "ANSW$R t I don' t think you need any experiment evidence. I can see that every day when I look at a patient's throat. I ask him to say 'aye' or leye' and while I am examining his larynx I don't think the examina- tion is complete until I have looked into it. I ant looking through air, therefore air must go through it, must circulate through it. I don't think I need an experi ment to prove that to me. "MR. PIELDs You say 'it', you are referring to the pyriform foesat "WITNrSSs I am referring to the pyrifora foesa. We have a saying to our reaidente, 'You have not completed the examiriation of the patient's larynx unless you have thoroughly examined the pyrifora sinus. It you haven't seen the pyriform sinus, you haven't exaatned the patient's lar)7tx.' "QV:STIONt k'ell, naybe I didn't make my : , earlier request quite as olear as I should. As I under- stand it, the larynx, trachea, lunEs, are all a part of our bodily syatem of respirationt "AySWSRt Yee. "yU~:"Tl'M Xou have told me that you know

579(126) vi7 larynx aanaer comparisons. These differences provide some clues about potential environmental faators.' Would you agree with thatt "ANSWERt You know I bare read that paper amany times and I don't even know what he is talking about. I can not agree because I don't know what he is talking about. "QUE3TIONs Well, do you agree that there is a difference in sex ratio between lung to larynx cancer? 'AN3WERs I don't know anything about lung canaer. "QUESTIONt Well, then I will limit it to your field here. Do you agree that there is a difference in sex ratio between extrinsic and intrinsio, as we have discussed theaa here -• and I recognize that those are not your teriast "ANSWSRs I know that taking the piature as a whole -- the whole field of cancer of the larynx, thWout of every ten. people who come to us with a aaancer of the larytvc, only one of them will be a woman, nine of thea will be men. "QVBSTIONs And you don't know anything about it? , . u, ~"ANSW]3Ri I don't Mow aryrthing about it. o. a. "QUESTIONi Extrinsic or intrinsiot ~ co

v1Z 579(1?l) of no hxnation that the pyriform sinus serves in that respiration. I now ask you whether or not in light of that you consider the pyriform fossa as an organ oon- oerned with respiration? "ANSWRRe No one knows what the itiinotion of the pyriform sinus is. No one knows what the function of the appendix is, but it is also a part of the bonvel. No one may know what the function of the pyriforae lossa is but it is still a part of the larynx. "QURSTIONc Do you know of anyone else that olaasifies the pyriform tossa as a part of the larynx? "ANSWERs I can got an author for you who in one place might tell you that the pyritora fosda is • part of the hypopharynx or the pharynx, and another place he might say it is a part of the larynx or desoribe it as a part of the larynx. "QUESTIONs When you talk about as a part or the larynx, on your olassitiaation here at Mayo's, you don't ever consider a cancer of the pyriforn tossa as an intrinsic cancer of the larynx, do you? "ANSWSRs We don't use the word intrinsie cancer of the larynx at the Mayo Clinie. "QVSSTIOHt Do you use the term extrinsic? "ANSWERe No. They are poor terr.isl they don't mean *nything beaause they have too syan,y meanings.

579(123) vi4 realise that there are differences in how you treat a patient who has cancer oP the larynx, depending on where it is situated, and so in writing about their triumphs and failures in treating this disease they like to tell the other doctors where their oanoers were that they treated so they try to say that so many patients had cancer in the intrinsic larynx. Well, then they turn around and try to define what they mean by intrinsia cancer of the larrnx, and it has become a mixture, a hodge-podge, a terrible thing. What I mean by intrinsia, Dr, Martin in New York might mean something entirely dif- ferent. 3o might Dr. Kuhn in Haamond, xndiana, or wherever you sll.ght want to go. "QUESTIONi Isn't it true that those who refer to extrinsic cancer of the larynx use that tercn uxtrinsio cancer of the larynx as synonymous with hypopharynx, so if there is a cancer that is not in the air passageway but located on the outside of the pharyngeal area it is referred to it it is inside the larynx, where they refer to it as intrinsiot "lN3tivER s No. "QUESTIONs That Is not larynx but in the hypo- as extrinsio, while the cords are, that true? Well, I xill come baek to that in just a ainute. Are you fawiliar with the xrttings of Dr. Wynder on aanoert

579(124) v15 "ANSWSJt s Sone of thea. "QUSSTION: I ara referring to an article '/1 Study of Environmental hactors in Canoer of the Larynx', that is dated received for publication on July 13, 1955? "AHSWERs I have read that, I believe. "QUESTIONs Now I am referring particularly to his statement on Page 87 In this yaper, the terms extrinsic larynx and hypopharyrux are used interahangeably. "ANSWERt In that paper by Wyndert "QUESTIONs Yes. "ANSk'ERt Another example of his own way of classifying this area that we are talking about. "QiTESTIONr Yes, that is what I was getting at as to whether others did so consider It? "ANSk'ER s They do. "QUESTIONs And I refer also on the same page and ask you it you agree with this statersenta 'The foregoing data emphasised the importance of studying separately extrinsic and intrinsic cancers in an euviron- eaental cancer survey.' Do you agree with the statement that there is a completely or largely different causal basis connected with extrinsic or intrinsic oanoers, and you need to study them separately? '~ "ANN'nni No. "qUESTION: Cootor, do you agree that there

579 (110) , •1 f KR. HAkDY: Now, at a later date Dr. Devine was further eross-exaadined by permission of the eourt, and that date was on the gth day of September 1960, after the taking of the plainti!'f+s deposition. The appearanoes were by Mr. I,y:earl Field, of the law firm of P.ogers, Field, tientry & Jaekson, of Kansas City, Missouri, and Mr. Charles L. Carr, of counsel, for the plaintiff$ And Mr. David R. Hardy, of the law fira of Sebree, Shook, Hardy & Ottnan, Kansas City, Missouri, and Mr. John Oliver, of the law firm of Caldxell, Saetin, Blackwell & Oliver, Kansas City, Missouri, and iKr. Carl Engas, of the law fira of Wateon, Fse, Marshall 6 EngZas, Kansas City, Miesouri, and Mr. Alexander Holtsman, of the law firm of Conboy, HAwitt, OtBrien & Boardatan, New York, Nex York, for the defendant. "~.~,-position of Dr. Kenneth R. Devine, a witness of lawful a6e, taken on behalf of the defendant in the above entitled aause, wherein John T. Ross is the Dlain• tiff, and Philip Morris & Company is the defendant, pend- ing in the District Court of the United States for the t'estern District of Mier+ouri, kestern ni.vieion, pursuant to order of the court'hereinbefore made and tiled, before Jchrt B. Camey, a ro Ea ry publ io, in and t'orOlais tec! Cc.:uhty, ;t3te of Mi;:nRrota. ^* the :';u;;•o VutldtPW,, in the

~ -... w. .. .. ._ _.._ . _ 579(70) requosted tho receani,' I would liko to~ dxrect your attention,.: pleaae, $ir; to: thQ lir3ti:para~;~aph or _the 77 oomit ielit on t ie 19,51jp^syar,.6 and tho 1Not ~r apra~ 01' the oonnent of the 1956 paper uppLa.rin3 on pace$ 54 and 52 reaprctlvoly, and ask you if it is not tru© that the mattar that underlay the initiation of this racearoh ttas dirc3oted to attempt to ©stiablish 'Dome contribution to saienoa gQnQrally on the controversial subjoot of whether toLacco had any cause and effeat relationship with larMpal oemer. Now 2 cr$nt to direat your attention partieu2arly to tho first paragraph of. the comr-nont on paSo 50, and tho 1ost paraVgph. Iwant you to r ead that o arefully. "AtiSI-rM I have read both of these paragrapha. "-QuESTloNs Now I will ask you$ Aoctor, if it is not true that thQ wholv purpose-•not the whole purposo, but a real purpose in the investigation in whic ~O' ~~: r' w"as dir eoted to ad^f nv, sonme contributlr.~ in the controversial field of t;hQther or not thare was or was not a possible oause and offeat relationship bortleen arsok.Lzia cxgrmttos and laryn ;oal 4anaer4 Whother this was the background of tho study, *11?tstN7.R e I think it Was, pQtfl?STIQ31s YQs. )3ad, I3aotbr*' whotiseo or not, tuoiii~; enfarA that arudy for that ~ T ~ N

579(118) evidence to your knowledge In the scientific world that the pyriform sinus has any lunction other than as a food passagewairt "ANSir'S~t t No. `QUBSTIONs Now I believe you stated earlier on your deposition that cancer in the sxea of the pyriforA sinus has a low aure rate, is that correott "ANSWER s Yes. "QtTESTION: Can you approximate for us about what the oura rate ist "ANSWER: Thirty-five percent of these people survive five years after treatment. "QUESTIONs Is it true that the pyriform sinus is considered anatomically to be a part of the hypopharynx as distinguished from the 2arynxt "ANSWER: Not in my way of thinking. "QUESTIONt '67hen you say 'not 1n your way of thinking' --. "AN31a`SRs I consider the pyriform sinus as '.a part of the larynx. I have told you of its boundaries. The boundaries are made up of eartilages and aYUeosa that form the larynx. I told you that cancer of the larynx 4nd cancer of the pyrifora sinus are one and part of the large problem we face every day, and xe lu.np them sll tooether as uancer of the larynx. I know that people ~ 0 N O m ~ a 0

.; to atatQ It again4 "AUStt'ERi ;h9 duestion %las, 'Do I k-noN of arV xhstV "QUgsW0i3s Do you knv.i of nny 2'igurea r•.nyvthare that Nou2d eupport the thosia that there has bQen a similAr inerea3Q In the Inaidence of lar;;nggal 4ancer aa thera have bo4n recorded eo tar ne cancer of the lung is ooncozneJt '"ANS M: No. „orrcz~mrr~M~ Atonf T t}ltnk I?rv t;onntv_! R~.ext1o23 !~'re thi.gs that whether or not a].1 of the figt:ros with which you are fezil,ipr support the proposition that the inaidence of laryngeal cancer hao oiti3er remained even or hoe sQtunlly decreased dt;.ring the very pario3 that cancer of the lun,, was in.^reesing-t I don*t kno=,i of eny. ~/\it'L'QItl7/~l1 14a.F-w.y n.r.1. a.wt L~ p.. ~+~ w..t vRVal i~~,. ~{+ vLV~1a7t.yVitj . i!W VVt, u~ V i V~ i4M~.i+Q• Ri Yho writings of Dr. F.rnast Wynder? "ADSWM I have read sor.te of his literature. ' t~STTi Tn Psat Y thlrk ~o~ ei~e~ th~ (At,. -w . _.-.. . ._._.__ ...... ~ ~ .._'..-..._'~i" . AF- r article :.n o,h-1+:h tie vP u; a oo»nuthor a ~ ~

579 (134) v25 "ANSWF.R s I said many of them have been or are heavy drinkers. "QUSSTIONt And the total out of the ones that you oheoked in this survey you Just made, about 1800 total oases, and that would be about 180 cases roughly of the pyriform sinus aancer, -- you said nine or ten peroent -- Ijust took ten percent --t "ANSWBRs A 180 is h2gh, I suepeat, it you take the whole group. "Q'JESTZON s aive us your best approximate figurQ of it! "ANSWSRt ltell, maybe 100 oases. "QUESTYOyj About 104. Has that paper been ' q published! "ANSUIFR= I think it has. "QUESTIONt Could you tell me where it is publishedt I haven't seen it and I try to read as OW of your writings as I can. "ARVER: Z'be Amerioan Medical Assooiation', Archives of Otolaryngology. "QUESTIONt About how long agot "ANSWER: Three or tour months ago. "QUESTI4Ni Now you told us at the time of your other depoaition that in order to establish oausa- tion that olinioal iapresaions were important as a clue

i 579 (i3o) years with regard to laryngeal aanoer, was there my scientific pa.pcr, to your recolleatlon, to your knowledge, that dealt with the subject of causation of pyriforrs sinus or other hypopharyngeal oancer4" Do you want your objeotiont KR. plgLDs No, I have no objeation to that. Go right ahead. MR. NARDY= (reading) "WITN833s I lost wq temper the last time you asked me that a year and a half ago. I cabQ down today saying that I would not do it aLain, but I am afraid I might. I can't reoall. I an sure that articles have been written on that subjeat. "QtTESTXONt iiell, let me put 1t this ways donit want to ask for the imposeible -• what I ea asking, however is do you know of any saientifio work evidenoed by the writing of eryr scientist which deals with the causation of pyriform sinus cancer and suspected causative taatorst "ANSt'ERs I suspect anyone who has ever written about cancer of the larynr,, cancer of the pyritorn sinus, cancer of the tongue, cancer anywhere, has somewhere in his article speculated about the causation of this disease that he is writing about. `"O::STI4Ns Now with reterenoe to that, with reference to speculation about the causation of this

579 (i44) "QUMTIONs Now with regard to the location of John Ross' cancer in this case, as I told you we took Dr. Parkhill's deposition this asorning, and she, I think, sort of outlined on our Defendant's E.xhibit 4 at that time the area which she, as the pathologist, found to be aanoerous in that area of the left pyritorm sinus. It is your understanding, ie it not, that the malignanoy the cancer -- was oontined to the left pyritorm sinus? 'ANSKSRs Yet." .,

579 (132) cancer of the pyritorm sinus, and one oP the paragraphs, I believe, went such as thiss 'Ttie average patient with cancer of the pyriform sinus is a white s+ale, he is about tifty-eight years old, and he has been a heavy mnoker, either is or has been, and also a drinker, either.is or bas been. He uSually ao"s aoraplaining of a sore throat or hoarseness and treQuentlyy has e< lump on his neck when be arrives, and he usually has had the symptoms for three months.' This information was based upon a review of some 1800 records of people who had cancer of the larynx and were seen over a period of fifteen years. "QUESTIONs Now this 1800, were there 1800 people who had cancer of the pyrifora sinus! "ANSFIBR t 1109 "QUHSTIONs How many of those 1800 -•t "ANSKFsRt I think we divided that titteen-year period up into three groups, five years at a time. We found that cancer of the pyriform sinus in our experience was increasing. I think it had 3urdped from five peraent in the first five yeare, to nine or ten percent out of that total group in the last five years, we wondered tfiy. "QUESTIONs So of the 1800 oases then, roughly five percent at the start up to nine or ten percent of the 1800 at ths end, or nine to ten pereent of the grouping there -•t

579(101) - F'1 I . N or dofendant jwo could just read text bookn una cu-tiolQs from now on and I want to objcact for that reason. :iR, nl~.?D t OLOge, ty-e only thing I am talking about is this is the article thathe was cross-er.amibed from, Lt ie not evon a different article by the sar@ authority, it is the saQe article and it is by the very same authority and it is virtually the sar.yr3 psgo, and on redS.recst t:aarination you alKays have the right to read in fuli eontea;t of the sub3eat gone into in cross« exaxnination. It is not offered an direat c:vl.dQnoe, it is rarely to shom the 3ury the Ontire context of thia partl4ular article as it reiatas to the m.atter that i s gone into j, ].ar;,mgeal rialignancy. THg C0t3RTt To give undue ev:phasis to the &r t_ iCle gets this ~iliole Awt~iole out of ti~ a. I: !s not substantive evidence of the fact stated in tho article. It Is being used to test the @uaXifiaations of tho witnsss. xt might have a vary sligJtt bearS.ng on some of the guoations asked tho uitnosa as to hia n»a 1i fin_p tInna ~ X think it is so oligitt in this connQetion as to not be adr,iusiblQi» tho considerati.on of the mta3.n isaue bofore ug. In other uords, I think S its Cr:dnittrnce Za projudiciaa to the defendant in tearing upon th© rvain lgsuQa in this oaso, because 3.t evxder:;e of the fadtrf s

579 (133) v¢3 I "ANSWERs In that greup, let's say, something like 600 people co1ae to the Clinic each year with oanoer of the larynx, and out of that group ten peroent would have cancer of the pyrifora sinus. *QUESTIONe As of nout "ANSKERs Yes, as of now. "QUESTIOPtt Now what did you speQifiaally aheok out? The smoking and drinking history of those dhat had pyriforex sinus cancer as distinguished from oaneer of tht inside of the larynx? Did you break it down that way! "ANS1dER= No. "QUS.STIONs So that you could not say that with regard to those who had pyriform sinus eancer, as to whether or not their smoking history was the same or different, that is either not a smoker --t "AN5WERs I don't think we had to go into that detail. I know I have never seen a patient with oanoer of the pyriform sinus that did not emoke. "QUESTIONt You ever seen one that didn't "• drink -• whiskey, I'a talking about, alooholt "ADiS'WF.Ri Yes, oocasionally you Will see one in a woman. There again the sex factor enters in. "ttUESTIONt Do you find that srost of the eancers -of the pyrifor:n sinus are amongst men w'ho are or Por-Aerly Kere heavy drinkers?

579. (136) v27 , "QURMONt He may not do either of those things! "ANSWEAt No, he always stoked. "QUESTZON: Now my question is, have thert been any helpful statistical studies oarried out in conneotion with these olinioai impressions or oarried out otherwise with rerard to oanoer of the pyritorat sinus? "ANS'WERe They do not lWt themselves to pyrifora sinus. "QUESTION: Have there been any etatistioal studies that you know of that 11umish any information ooncerning pyriform sinus that you consider reliable in helping you torm a Judgment! "ANSVERs I think that some of thege folks use statistios we have talked about and have written papers about environAOental and other oauses for oancer of the lazynx, and in there I believe they di$auas pyritorn sinus. Perhaps not aa a definite entity, but they may have'-*lucaped it under the term extrinsio larynx, ' "QUESTIONt You don't have any reoolleotion of anyone in particular on that! "ANSw:'8R1 No, but I suopect you do. "QURSTYONs I said at the moment I don't think of one that does, that is one ot the reasons I em asking you. I don't know of aM. I will state that to rou,

579 (142) r33 "QUSSTIONs Do they partially oblite3rate the pyriform sinus! "ANS1tSR s Partially, so' :duch so that it rsight be a little difficult for us to look into 1t, but ws oan see into it.- "QUESTIONs So that when you are inhaling air the epiglottia told at the top of the larynx partially obliterates the pyrifor:e sinus, and now when you are swallowing food there it goes through the pyritorm sinus= is it true that the epiglottio folds sort of told ir to protect the larynx as the food goes through the pyrlfors sinus? "ANS&ER s All right. "QVESTIONs And as I underatand, it, you have no •- except for this faot that you know that it does happen, you can't see any partioular thing that keeps the food out of the larynx, and this is one thing you know that does happen by the valve box, but you dons t knox'exactly how that happens, is that correct? I "ANSVERs Oh, Ke have many explanations for it, but nobody really knows for sure what the real mechanism is that makes it xork. "QUSSTION s And can you tel l us i f the same thing is true ae to Hhy it Ss that a substantial quantity of air doesn't go right past the larynx and down through

579(128) v19 ,LDi You laean can't be used at alit "MR. FIr "HR. HARDYs Tfiat is spr Queation. "A)IgWSRs I suppose a pure scientist would say they could not be, but clinicians such as I eunl might cauistion or statistics of lung cancer? " bevome sucpicious and wonder about the probleat. °QUESTZONt Yes. What I msst is that you aantt prove arqthin4g about a larynx cancert "ANSWERs By studying cancer of the lungt" Then Mr. Field asks me to further define apl Question, and the doctor says he understands it--I mean I ask the doctor if he understands it, and the doctor sayst "ANSWF:Rs I think his question is all right. I don't think a real scientist would say you oould." por alarity, since there was so much ir-be- tween, I want to re-read the Question. The question xass "Yes, what I mean is that you can't prove anything about the causation of larynx cancer by studying "ANSWFRs I think his question is all right. I don't think a real scientist would say you aould. "QUESTIONs And by the same token, insofar as cancers of the inside of the larynx -- I will call it that, shd the outside, so I don't have to use the terms ~ 0 N O that you don't usually use -- inside of the larynx and 0 ~ ~ 0 0

579 (13g) "QU33TIONs A11 right. Now even though there is considerable argument about olassifioation as we have been disoussing, isn't It true that the International Classifiaation places pyrifora sinus ia the broad category of pharynx oanoert, , "AN3'wERs The International Classification has not been accepted by laryngologists. It is still in a tentative torat and used by very fex working laryngologists "QUESTIONs Is my etateaaent correct with regard to the International Classificationt "ANSM s I believe it ls. "QUE3TIONs Now isn't it true in epidemiological studxeso surveys, that the pyriforst sinus cancers are counted as pharyngeal cancers as distinguished froa laryngealt "ANSWERs I don't think so. If they are, I don't think they ahould be. "QUESTIONs You don't think that they are? "ANaWERs I don't think they should be, if.they are. I will put it that way. "QUBSTIONs well, do you know whether they are? "AN5W8R s I do not know. "QUESTIONs Now the nedial wall of the left pyrifor~ sinus i• on the outer Kall of the larynx, is it not?

579 (143) v34 the eaophagus into the stomaoht "ANS1k'KR s When breathing? "QUSSTION s When you breatliet "ANSWF,Rt tdeil, there is a rsuch easier path for the air to go. It follows the path of least resis- tanee, which is into the lsxynx, into the trachea, I might ssy. The windpipe is wide open and there is a vacuum created down there by movement ot the diaphre,gm, movement of the ribs, so the air is sucked in or it follows the path of least resistance, which is down into the trachea, the windDipe. "QUESTIONs So that the main stream of the air staye out of the food tract and is sucked through the larynx on down into the lungs!" MR. FIShDs That wasn't nnswered. 13R. HARDYs No. Hr. Field said "gullet or esophagus?" And I sa.td, "I mean the food traet, through the pyriform fossa, down through the esophagus and on , down: "QUESTIONs You have already told us that you believe some air gets there or there is some air gets there, but the Win stream of the air does not go over into the Dyriforat fossa, but goes through the larynx, isn'L that rightt "AN3'WERs I believe that is right.

579(1p9) 20 canoera outside ot the hyDopharyngeal area, you reoognise, do you not, Doctor, that there may be differences In causative factors In those sites by virtue of being a food passageway or an airway? "ANSWERs No, I don't think they have any real dillerenoe. "QUESTIOHs You don't think what? "ANSWERs I don't think there is any real difference In oausation. "QUESTIONs You say that even though you know of no connection with the breathing that the pyritora tossa servet "tXSWFRs I say that In spite of that. "QUESTIONs Now with regard to eanoera of the pyrifora tossa, there is no or there are no available statistical studies with regard to causation of suoh aanaers, are theret "AKSWSRs I don't think anybody has ever written a paper that specifically lim-its the study to ossloer of the pyritorm sinus in relation to oausation. "QUESTIONt Now Dootor, with regara to the Dyriform fosea or pyriform sinus In all of the review of literature about which you xere questioned at the last deposition, xhiah I won't go back into except to ask that ~, ~ N in all of thosR papers that you reviewed through the ° ae .~ V O

579 (140) t ~ ; , . the outer wall of the larynx, is that the same In substance as this parting wall I described? "/4N&bgR1 No, It is nort like a partition whioh extends across the rooa. In other words, they are not eoapletely separated one from the other. It I want to get into the next room through that wall there, I would have to break through the wall, but if this wall were a smaii partition here then I could hop over its ir that makes any difference to what we are trying to get at. "QUESTIONs No, what I was trying to get at is as to the wall itself, in this case, and 2 will explain myself. In this aaae as I understand from your former testimony and Dr. Parkhill's testimony this morning, on the medial wall of the pyritora foesa the cancer extended in approximately half way through the wall -- tour•tenths C .. of a centimeter. Now what I an asking you for the benefit of layraen is that It you have -- isn't that the same thing as It you had the wall between this ortiae and..the next one, and drove a nail in the wall halt way through so that It didn't affect the other side unless It goes all of the way throught "ANSKSRe I oan't answer that. It is a wall, it ycyu kant to ahoose; but I choose to use the -wora i paI'ti`io11. j e

I 579(90) - . .. .___.. . s .~ . .. ~ .~ anyt h~ rid ~bou the;°~rY i~a3e; ildid -. :V "A?1N14'k.'ti A'hat I am trying to tell you !sthat you have at your cormi.and a trerrpendous au-ount of literaturQ with Uhiah you prSrkd-youraelf for this casej therQfore,Idon' ic like the v ay you are presenting tYcis to me as thoui;h I am a dunce, you ae©, anc~ that I ara not up on what ig Soing on. I Sust wtvit to got 3.n on this»* RQU : TIQNi Doe tor, I want to apo3.oSixo to you, air, if I m giving you the 1IDpression that I think you are atting liko a dunce or not upon your 1'iold, The only offort I am attempting to makep aira Is to inquiro into the basis of uhether or not your 3udgi:nant that thero was amedical probRbility that amoki "~ITMTlo14t Now X will ask you.--lf=you "J!26SWML OkRyl Yn'o4eed. "QUFSTI4Mt pine.. "Atd: •Wmt Okay. ciCarettes could have contributed to laryngeal cancera taao inrorr:yatxon that you acquired subsequent to the time you published your opinion in 1956, and all of this Qxmraxnation has apruwZ, from that point j air, rRinA1Aat' - e)r YTnt :3 you .femiliar. _ln.-your = g~~ - - ~---_-----_ - -~ ~„ ~- ~ trith this 'Itu,'Y sit F'tRtr.')<<AA aW:0a0(is !x't~ Sta~>ie_tic~l ,-o. . . ~., ~ C71 ~ ti

v28 579 (137) . ,Doctor, in fairness, I don't know of any statistioal studies or collection of statistics with regard to cancer of the pyrifora sinus." "QtlSSTIONs Doator, it is true, ia it not# that the pyritorra sinus being in the hypopharynx is aonsidered a part of the -Zarynzt "ANSwER: It is part of the pharynx and by the same definition is also part of the larynx, end its boundaries are formed by the larynx and the struotures that form the larynx. "QUESTIONs Speaking of those bounaaries, isn1t it true that the lateral and posterior wall of the pyrifors sinus are entirely hypopha%yngeal in origin? "ANS1dERi Embryologiaally, from a structure before we are born or --t "QUBSTIOqs I assume that is a proper interpreta tion. "ANSWERs Ersbryologioally part of the larynx oomek from the 21Ypophazynx and enbryologiaally part ot it does not come from the hypopharyni. "QUESTIONs Weil, I was referring to the lateral and posterior wall*. "ANSM'ER i Embryologioaliy that seuoosa that forms the linirg of the pyrifora sinue, I would agree is part of what you are choosing to call the hyDopharynx. w O N O m V V O ~D

v22 I 579 (131) particular disease whieh we have in this aase, do you know of any experiaaental research xork as to the oausa• tion of cancer of the pyriforis sinus? "ANSkF.R: How oari you experiment on hu.sans i» the pyriforn sinus? "atTXSTION t I don't know that you aaa j I f ust say do you know of arly euoh workt "/lN3l4RR i Ko. "QUESTYON= Do you know Of any atatistieal studies of cancers of the pyrifora sinus or aanoers •- Well, I will lirait it to cancers of the pyriforat sinus, in the scientific literatulre! "NMp.Rs None that specifically limit theYaselve to aanoer of the pyriform sinus. "QUE3TIONt And do you know of any clinical evidence as to causation of aancer of the pyritorrs sinus of any time? "ANSMERt Yes. . "QUBSTIONt A11 right, tell us about that.' To rvhat do you refer? "ANSWERt f'y own olinioal evi.denoe. "QU^rrS i ION t What evideno e did you have in your own clinical expei•ience, Dootor, as to causation of canaer of the pyriforA ainus! "ANSwBRt t'e wrote a paper not long ago on 1

- 579(64) eaao in Lhe prewent stcudy indicate the necc~sai.ty of further studies to seo tinether auch irritants aa to; wcco a..„e a os.usr.tive factor in these pathologio chat&cs. of the Ittrynx. It is hoped thHt such studies will ho undortaken by other groups of trrvestigators who have accoss to accurate historioa of amoking.1 "MISIMtt You are nsking mQ if that. is actually in there? "QCIB9mIONs Yea, "J3.S=t zt 1o. "PMTYONtVow 1 want to ask you thi s quostionj Do4tor, that ns of January 25,9 1956,*You cortain.ly isore not of the opinion that xt uas amdiaa.l 1wobability that smok.ing cigarettas was a provett ~%uu`a yi ve i cv tv"a .`~usi t::@ tflr l~.'..yngf.''al. CenQerp ~A:,yM ; "~ s7er-e,t t a~.karg abou"t canaer of the laryivc, te Uera'only talkin3 about s$ualmous. t~otaplauia of the Yaryroc. Imade no ctatemmts in there about amoking and caxuser of the lar3mx, , ttQttESTIM: k'olli Doctorp you are not attcmpi:ing to a*ad the court rmd the Jury and tue to bQliov© that -the ~'xndity,g of tha- e.~cistai2ott oP, uetaplassia -_ tsa9 a diacov-ft~y'of tchat inevitably wau1d f -load to laryrlgoljx_ aanoe_rt t^J~~k V,o No.- 'Ve oircply verq talkirla - about tho ~ P w

579 (139) v30 "ANSMs Yes. "QUiLMONs And would it be, for the benefit of laymen, similar to what we might call a parting xall say between two roonas on this building, the same wall on one side the larynx and the other the pyriform sinus? "INSWB,R 1 • NO. "QU83TIONt Explain how It differe, it you will. "AN9WERs It Aei.ght be the same as if I had a room that was ten feet from oeiling to floor and across that room I put a s=11 partition which was about four feet high. There is a difference between a Mall and a partition, I moan I am talking in that regard. "QUgSTI4Nt Do you mean the pyriforaw sinus ex- tenda up higher than that -~ "ItNSWERt On the lateral wall it does. "QUE3TIONt Well, I am ret'erring to the medial wall of the pyriform sinus. The medial wall is the one I understood you to say that is formed •-t "A?iSkERt poressd by a wall of the larrnx.". "QUESrIONt Yes. Now ay question as to that medial wall, that is the one that is up against the larynx, is it not? "AMgR t Yes. °QUEs^, ION t+iow is that medial wall of _ the larynx ~• I aean of the pyrifora sinu+t, whioh is against

579 (190) Doctor p vhere he went to r.tcohot io g Anr,nymwu s*.nd vo.n*.. .,+F(V)es7 to their reetings S'or a p.ar.

579(75) T?'ti ths~t aubjact, - D1R, Van' to- ob,cCt to oowri~~el branRir„ u° his oro'!a-oi~auintit"~Q~s bocp~uno ho WWI Croois-axrIMirixx; the dootoi' on. h1s c''io11of vith . rea;oet to or.:eklnG a.nd Cer.cer and the daotor uan exqros* ing the beli®f, md hn isas aro3e-oxar:.lnirg from articXoa on sr:oki.ng tmd c~nr0r,xnClud3n; aar:oer of tho lun,q V.nd the larynx, tor wcamplo, oxi pago G2, ho talks tbout-y oroms-oxnanO him from tho artiohta OSmotcor'a Uryre in iarMoecopo# by Vollner 60 a: ~sa-o~c~it~a~ hi:A on t.hi.a conoral aub4cot Qt long cr•.Q4n ;P-111 cauoatiQn of cancer, and X don't think he chould bo por~•.ittoa t o pick and QhoosQ, road the good trA not take the bittor with the gyoet. ~t'.t~' ~l~ttt~T. ~!t.+nae bl.lr S a ~..+Qoe~ s~+r m r+n~t ~.rs ; VV~1 ~ V~1N1/ YN.rV I4Y ~ VMb • ••M N •~~ think it ahould all bo road unleas it is not ooMpotOnt, F., lu:rTlY: If tho Court plesae, 3would 11ke to &mte Hith rogerd to thia oraaa-exr;rr..inatiori, thA reaeon I raiood the oubjeat i.a boeauso I do not w Snts 'b'. " to 4~,n ..ti. ~. g,af•.h. `Yy ~ r~tcr.td's,a"1q 'vaAV the Yvv to Gamor of thu lurtg, dDraoh* aolon, QvellY placo olto in tr.© body emaei.% whero thia one occu..~rvd. With tho . . ._._~ r.: ~~ that r.h4t d<»s sOt Voivo r.nq {1o03 nor, bpOn"Alp ; = "' imdoratar.Jin3 that by rq reaQ9.n-g Wn 0 0tt4s.0t ot' 1C;W44% at otL.-:r nl':os, cth'oh .lg not -Inyolv.es3 ."I ~ 0 `

v18 I v 579(127) "ANSWBR: I don't know anything about cancer of the lung. We have used the words extrinsic and intrir- sia apologetiaally, perhaDs,*in some of our papers to try to go along with the rest of the oroxd, it you want to aa11 it that, but we px*efer to use anatomical teras such as epiglottie, euah as pyriforn sinus oanaer, or true voa cord canoer, false vocal cord oanaer -- I don't like the words intrinsic and extrinsio, I don't think in those terms. "QUSSTION: Insofar as causation is aonaerned, do you agree with this statement from the same page, 'Unlike the extensive literature now available on cancer of the lung, relatively few data are available regarding environmental faotors considered to be of significance in the development of larynx oanaert' "ANSm: I do. "QUESTION:Continuing, 'Among the factors suspeated, even feKer are based upon what may be oonsid• ered'reliable statistical evidenoe.' Do you agree with thatt "IINSWTR: I think so. "QUFSTION: Now would you agree, Dootor, 'that statistios can not be extrapolated fro• one site such as the lung to another site suoh as the larynx, as a basi• for determining aausatiion in either ar+a't

g?9(125) v16 are different inoidenoe rates in eenaers inside the larynx, referred to by some as intrinsio, and cancers outside ot' the hypopharyngeal area, referred to as extrinsio by so"t "ANSWER e Most of our patients -- _ I wouldn't say awst, but probably one-half of the patients who oone to the Clinic who have cancer of the larynx, have cancer confined to the true vocal oord. It you wish to aall that intrinsio oanoer, all right. The other half are scattered around the larynu, the eDiglottis or epiglottie fold, pyriform sinus, false oords, ventriole, other parts of the larynx. "QtfESTIONs So there is then in your experience a difference in the inaidenoe rate of cancer inside the larynx proper and oanaera in the same area outside of the larynx! "ANSWF.R t 'i'hey are more tyreQuent on the true vocal oords. "QUESTIONs And then would you agree witti,this j statement from the same article on Me 88. "MR. PxSLDe What is the year of that article? "KR, xARUYs Printed in 'Cancer' in 1956• "QUFgTION s' This summary of inoident data shows interesting diftsrenaes in sex-ratio, lt.ing to larynx cancer oomparisons, and in extrinsic to intrinsie ~. ~.. ~

579 (183) v14 rather than a ecientifical2y based opinion, is that a fair statementt "AN,O%.Wt This i• RY opinion. "QUBSTIOMt xes. "AN31m= Based upon Clinical experienoe. "WESTIONs A11 right, Sir. And irisofar as even your opinion is oonaerned, and by stating it that xay I don't mean to letts say be offensive, but.insofar as your opinion is conoerned, you do not distinguish between oigarette smoke and eigar smoke and pipe steoks, do you? "ANSWLRs No, I think they are all bad. "MR. HAR+JY s That i s all." tue 'ols rith tedr

579 (152) either. "Q=TI0Ni Well,, one tbiqg I was trying to distincn:iah betweent pQ4tor, we all may bave opinions or irp:+eagions that are our own personal ideas basad upon wbat kaouledge we beroe, of Wbat we bave read and what we bave seen and so fortb; now not being a surgeon suob ae you are, I am sure that your iiapressions aliniaally would go beyond wbat someone wbo was not enGaged in your f ield would. Wbat I would like to knov is as far as the etioloS7 or caunatioa of disease is concerned, the medicall profession does not aooept and act on the impressions of a alini.ai.an witbou.t m4rs, do ttey? "ANSM= Yeg0 they do. "QUESfiIONt They do? "AtiSWFRs They surely do, Wiaine would be at a statdstill if we had to sat only on vbert the scientist bas proven in the 3aboratory. We would bava , to l0ok up stzap and go tome, we would have to revert to the Middle Ages. "QMSTIONt Well, I didn't make uyrseli quite ol I didalt mean by tbat that you have to ignore your owa ivpressione,.but at wbat point-vbat support do you bave to have before you Qonaidor it is eetablisbedt "AN3WSH: I believe that differs end varies

579 (171) i MR. HARDY (reading)s --"pharyngeal cancer and smoking of any typet" "AN3w8Ri I don't agree with t.hat. - "QUg3TI0Ns You donit agree with that. Do'you know of any statistical studr, other than that one, that cover pharyngeal cancer and come to any oontrary oonalu- "AN3NLRs You see, the word lpharynx' -m the whole thing 3ust is a poor sentenoe. The word pharyax, as I told you before, includes a great cavity which extends from the base of our skull to the inlet of our ahest and the eentenoe, in itselt, is of no use whatsoever. Yt Is not valid in any sense. x would Just pass it right over it I was reading it. I would say, 'that is nothing I need to reasember.' "QtJESTIONt They reviewed here oanoera of the lip, tongue, other oral oavity, pharynx, esophagus, larynx, lung, and the number of oases reviewed was 2605 oase.. ' "ANSIMs Did they say what they meant by pharynx? Did they define the term? "QUES'TIONs Let's see. I think they included in the pharynx sites other than those specifically stated as I gave you. "MR. PINLD: Khere does it say thatt I Aean,

579 (it7) It is in a partioular plave ia the throat that we call the pyritbra siaus. l Nov I wanted to ask you, is r,7 uaderstaading-•3a that answer is oorreat in this-tbat tto cancer lay to one side of the mautb of the swallowing pipe ®iad to one side of the alndpipep the mcutb of tbe wiadpipe, end vbeu you rotor to tyou could oall it the voS.ae box it you like, or the ].aryncl, you are refor- riag to vbat the vindpipe is ratber tbem vbera tbe asncer ia. Aa I correct in tbat4 "ANWRt P'&y I just read that? "QtJnNION: Yea. It is rigbt berep and it runs over to the n'"t po9e. "AHSM: I blieve I vas referriag to the location of bisoanaor, end I e.ai4, 'yo4 could oail this particular place ia bis throat the pyriform sinus or in bie voice box, if you like, or the larynx.' I don 't tbiak that I was calliag the mouth of the viad- pipe the voice box, I know tbat. IQWMIbNs youeay the moutb of the vitsdpipe ie the voice box? "K45WERi l[i~W 7.i ra,~u enL . ... ,.. s.t• WMtOR: iAt we as•<c you to clarity that aov j did this cancer lie to one side of the svgl.loviqg pipe and to one sids of the lwyax or voice boxt "AMt-MR: I oay it W to the one side of the uxput~ I

v10 i 579 (179) connected with cigarette smoking, you recognised that you can't prove itt "ANSWSRi Yea, 2 said that now and often a non- believer is a-ayniaal physician who smokes and sometimes he can provoke the clinician -- that is me •• into entering the arena to try to prove it, and I put the word lprove1 into quotations, and I still said I know I oan not prove it, and the $prove it$ is in quotation marksp but perhaps I can show thesa. They don't have the time at all to read all of these, they are busy on other things, so how can I have them come to believe it and how can I have them come to see the problem. "QUESTIONt A11 right, Sir. Now as of 1952 you had not had sufficient data to enable you to form an opinion as to causation of cancer of the pyritonu sinus, had you! "/INSMs 1952? "QUESTIONi Yes, as of the time you operated on Mr'l, Ross. > "ANSWSRt Opinions come in different forms, those you do not object to having announced or voicing out loud, and those that you have within you. Perhaps I had an opinion then. Whether or not it was as strong or as willing to be voiced out loud in 1952. 2 could not say.

a43 579 tj L 69~ the pyriform sious that was oaused by oao of those otber tbinge or ae~,y bavo beep uaused by ono of tbese otter tbiags that we iave r.entioneA; gnd one vbiob m}t tave been osuaed by gmakiogt "AN3Ms It is not possible for tnd to distiqguissb.* Judge, aould ve tave a abort reoess and tthmat•reating timst RHE CCUn:, Yes, we vM 'e a aborti xwoe8s. Menbers of the jury, vo vii.l bave a sbort recess. (Recosay

579 (172) •3 i you wouldn't know, other than what it said. "QUESTIONs All I know is xhat it ca,qs. They deal with the cancer of the eaophs,gus, aanaer of the larynx, cancer of the pharynx, cancer of the tongue and L ~.. ~..e ra vw. ., e...sv.>.. v~~~as- v+-•~ . "ANS'WBRt You see, cancer of the tongue -- the tongue is an organ which forms the anterior wall of the pharynx, and one-third of the tongue is in the pharynx. It is called the base of the tongue. Now when they talk about the tongue, what is he talking about? Is he talking about the anterior two-thirds or the posterior one-third? There is a great difference. The article which you quote me so far I would not seriously consider -- xouldn't clutter up my mind too much with it unless you show me more data than that I should remeuber. "QUESTIONs Well, I don't know whether I can or not, but I will see. Now he calls the pharynx and as near as we can aome to it, Doctor, insofar as your personal opinion is ooncerned, wouldn't you say that 'vith regard to oancers of the extrinsia larynx or the pyrifor,r fossa, specifiaally, that you have observed a closer association between aigar and pipe smoking in such aanaers than you have between cigarette smoking and such aanoersT "pNSWERt I think that we have quoted someone in thaG reqard.

579 (180) vll "QUESTIONs Well, I understood that in 1952 you didntt even have an opinion as to the causation of oanoers of the inaide of the larynx? "ANSWERs Are we going to rehash all of that again! "QUFSTIONj No, I ask you it there is some distinotion between an opinion as to pyriform sinus, or were you in the same boat-as to it in 1952 that you were with regard to the inside of the larynx! Zn other Kords, you did not have suPtioient inforaiation to tor+a an opiniont "lNSKERi Out loud. "QVWTZONt Out loud, all right. Now I will try to move along here. At the first deposition Mr. Field had you identify PlaintiffIs Exhibit 3, trhioh was the 'Pathologio Effects of Smoking on the Larynx and Oral Cavi.ty', an article that you had written. Now I want to ask you if it is true that in that artiale there is no referenae whatever to oanoer of the pyriform sinus? " ."ANSV'ERs we did not use the ters pyriforaa sinus In that artioU. "QUESTIONt Now in that same oonneotion, Dootor, the tissue that you removed was from the inside of the laiycuc in m:-LinS your ex3rnin-ntion, xa• it not, and not h~o-n thR pyritorra sinus?

t a2r'j 2 579 (151) "AMWI&Ri It can forat a very eiound vWtioal opinion of ttxi cause of caaaer in tbis area, and a vft7 good one, I tbiak, but I realise that medical opinion . and eo-callecl iaspregsioas mi.gbt aot. bold up and do n4t raak or out-raak saieatists# opinions based upon animall experimentation and baeed upon buman experiments. Tbere is no vay for us to do human eaporiMents in this arm. "QWMI4Nt There is a vay to do statistical etuQies, ia tbere nott AMIMRs Yes. OQMMI02i Aati tbere is a vq to do aaiml exp©rimntation ia tbie area, is tbere aotT "At1S~~Rt Yes, but animal experirr,oatation baa not beer done in the area. "UM-'IOM Matt, and statistical studiea, eo far as you knov as to this particular-- "AAiMIER: We went tbrouSb t'bat. "QMN-IONt Yee. Noy vbat else in arriving at aausation of disease.do you feel is aeaesaW besides your oxu clipiaal impresSioDs ia a limited , aurober of cases4 "ANSWERt I cannot aaswer that beaause I aat not a ecientist. I uoulda't knab. There are people vbo aall tLat-nerQlves w i.or,tigta vbo couldn't answer it

579 (177) v8 identified for identification purposes as Dafendantls I Exhibit A, ! "QtJESTIONt Now, riootor, this will be a change to a little different subseat, I will ask you it It is a faot that !n determining irritating properties of cigarette amoke that a standard test that In used In the research laboratories measures such properties by determining the amount of edema produoed.in the membranes of rabbitsl oyelidst Is that correct? °ANSwBRi That is referenoe nwnber tNo, Haag, Laraon and Finnegan, and the title of the artiale is 'Et'feot of Filtration on the Chemical and Irritating Properties of Cigarette Smoke.' The A.M.A. Archives of OtolarynSology, March, 1959. "QUESTIONs My question ia: is that a standard test which you recognise.as a standard test? "ANSWERe I am not a researoher, and as Y' told you before, or wanted to tell you before aand you intee,rupted me, what I was doing In this paper. I told you that my oyniaal friends have to be sort of convinced what I am talking about, so that they e+dght believe what I might be taiking about, I told you that I was trying r : to fashion so1oe way or some weapons to perhaps make them ~ consider -the poe3ib_Llity that e 4okina was dangerous, and that I would first go to the library and look up , O ~ n ------ ---- --.._..__. -- -.._ ------ -- - -- .__---- --_..- -- ___ _._ . . -.. -- -~ ~ ~ ~o

579 (146) offer it in evidence at tbie time, just to be eure the recorQ is etrai&t. TFffi COtTRTt It vil.l be admitted. Ht. HARVYs Tbat is Defenlaat Ia Exbibit 4 to the deponitiou of Dr. Leona Parkbi.il, vbiab ve viil let be the next letter. (m'F'~mm v 3 FaIBIT K k*A~ mAmm AND maIm 331 EVM=CB. ) MR, RA.Ms The exhibit that bas just beea paesM to the Jury is Exbibit 4. "Question, with regs,rd to tbat--'' MM. F=.t I objeot to tbat. AM. xMYs For olarity, tbey are looking at the exbibit and I want to tell tbem what the dootor i raid about it. i "Qit~~hC,'Lqs mMere ie one tbing in your depo- eitiob tbat I wanted to corroot or ask you if it is co This is on the bottorn of Page 12, You gave an aqewer bero~-your anawer ve::t like tbis-2 doast think tbe . question uiixl be important, but if it is I vi11 reaQ it to you. #Well, we oould a" this oamoor ia bis throat at a pa..rtioular p14ae ' in his throat. It lay to the one side of the moutb of the swallowing pipe and the_ moutb of the ssindpipa. $ Then you mi,d, sYou +I 1 could oa7.1 it the voice box it you like# or the lru7mr. j t. ~ 0 N 0 ae v ~ ~ ~

579 (174) vs a. RQUESTIONs Now I am dirfotin3 your attention specifioally to what Ijust reed and I ask you it that is your language, or, if not, whose it is and why no reference is sade to tben! "11N3x.Vts There* Is a referenae ,xade to it. It is reference number nine.. "aUE3TI0Nt Kell, not at the point I a~r talking about. "ANSIVIRt t'ell, the editor can not put a number nine after every sentenoe. "QUE5TIONt So that what you are saying is you m&de this talk but you took it from UIndert "AlJ3WSRi That is right. "QUBSTIONe All rig,ht. Do you a3ree that cigarettes play a lesser role than do aigars and pipes insofar as laryngeal cancer is oonoerrtedt "ANSkT-Rs h'e11, it just seems that people that I see in our olinie clientele -- if you want to put it that i+ay -- the people who come to the clinic in gendral are cigarette smokQrs. I personally can not say that I have noticed that in -- if you want to call it -- in ny clinical impressions, have not been so. I use this statement In that paper thoush. "Q113STIOYs Tt?S.s is a statement that you nade at a proceeuin,s of the stafPf

579 (157) EAMYs Rop I uont t aG.r" to ttat. I~'"1. FIEWs alay/. :fit. RMWe It atatess ~ ~ "If a man not only sookes, but drin'aap b!s atswceg of gettiM canoer of tbe pyritorEn si.nus are greater than ?.t ba drsn.~cs onl,y. 'O,6MMIO1i: c•tate if you will, Lbotor, vhetter or not you bave aW support for that ponitiion other than your own icrpreoafons? "AIOSRe I told you before that I believe tbat tbere am artioles vritteA about 4ancer of the 3.aa7tot in wbiab the autbors made studies of the eausal relation- abip of tobacco wnd drinking to cauoer or the larytnci cancer of the routb, wbiob did not 8peoiti4ally itl8Lltion pyrtform sinus but vbiob were inoludod la that artiole. "QMsTIONs But if you don 't bave tboss artiolee in wind.* tbey don+t form suy basis for your feeling, aa8 tV question is, do you have arqtbing tbat- forms a baeia ror your opinion other tban your,oen olinical i.®pre$eLons4" t+lR. FI=: "Would you restate i.t." 1.29 NATM I xill read it. "Would you reatate it, please?" "t-M. RM. Y: All rigbt. "~ttT;TI4Rs So far aa your opinion, vbiob ta ;

579 (150) "pNuER: I am e.aswering your quest ioq as you put it to me, and I have suswered it no. You said madioaJ. " eaientifio, v3.tbout resorting to specul.atioap and the aasver is that I have no ott,er 3.aformation-* eo-oslled oold, pure goientifio basis--to express the reasoa wby a patient has a cancer as I sae it. 9$ evLdeaoe is vbat I see every e!ay, eo-caa.led oli.al.aal evidence, people that I see, tbiags that I do. You cw0t iEno•re ttat. 'QUMIONs You aan't ignore it, no, but woulau 't you agree that-w "AWMt Perhaps the saieatiet Berkson says it is no oood.* that it i® not valid, but we must not ignore it. "QUMION: That is xbat you aalll your own olioiaal impressiobs? AAMMs Tbatts rigbt. "QU"r,STIO1ft Kov you do agrea, do you not, that your own oliataal iqxvssions in vbat--a buadred pyirtfor® sinus oasea did you sewy! "0SwSRS Yes. Nt1ESTI0N: Coaldp 't fox+m the basie for a sound aWicsx or s oleatitio opinion in tbis areat "ANSS;'R, ts .*:o, I didn't say it that way. '0%u33rIOM No, I am asAitg you nov,

579 (198) place in the entire respiratory tract where tobacco smoke will reach and f ill in the provee' of inhalation or exhalation of tobacco smoke? I "WYTNEUt But I didn 't say it was not part of . i the respiratory tract, There is a little bit of differeno~ ~ there. "KR. FIgLD: ?eeth are in the respiratory tract and they don't perform any function except perhaps to get clogs of food out." MR. HARDYs I object to couneel's comment. MR. FIELDt You read all youra; but if you object to wine I won't read it. t4R. HARDYt You just skipped over a big one of mine without even saying "How do you do". YR. FIELDs All right, it you object to my eom®ents I won't read them. (Continues readings) "NIl'NF.SS s Will you read it, please g "QQUSSTIONt In tact, I will rephrase it, because I dorl't want an objection to interfere and because t'ao looking ahead to the time the question will be read to a jury. "Doetor, regardless of whether one uses the term pharynx, hypopharynx, eitrinsic larynx, t cc

579 (18i) v12 . I "ANSk'ERt Sections were taken from ::ase oord, true oord, ventricle and eubglottia mucous nembrane. 3hat is on the ineide of 4he le.rynx. "QUBSTION: A11 rigAt. Nox at the same tiee Oliver had you identify Defendant's Exhibit A, which was 'Changes in Laryngeal Rpitheliual, now is there azW reference in that article to the pyriforat sinus or any portion of the hypopharynxt "AMS'ttERs You know the simple answer to that I no, but I don't know whether you went me to put in a 'but' in there. "MR. FIRLDs Yea, go right ahead, give any explanation you aare to. "ANS1ti'ER (oontinuing)t But some time ago we spent eonsiderable time dwelling upon what ia the pyrito sinus, and I think we are still driving at that point, and I told you that I ada.itted that the pyriforar sinus is embryologiaally considered part of the primitive gut, the pbarynx, if you want to call it. ' "QUESTIONs By the same token the false oord# which is inoluaed in this is also embryologioally part of the primitive gut or rauooea that oomee from the sawe area embryologically that the pyriforn sinus does, and that ts inolu4ed in the study. Dut the term 1pyrilorM sinust is not used in thie study.

579 (135) v2b or starting point for further investigation, such as etatistical and animal experimentation and so fortht" "AN5WgR: A few minutes ago or a year and a- half ago. "QUL3TIOWe Well, that is true, you haven1t read your deposition reoently, have you? "1lNSWMi Not thoroughly. I have glanced at it, but I havenst read it thoroughly an0 I aanIt tell you what is on every page. "QUE$TI4Ns Well, in substance, as I understsnd trom your deposition, Mr. Oliver asked you if clinical impressions were isfportant as a olue or starting point for further investigation along the lines that I have just indiaated, and you s+nswered, #Well, yea, you have got to have more than olinioal iapressions.$ And now what I am asking you now, -- I gave you that just as a baokground for spr next question -• you have just indioat ~ that you have within reaent times studied approximately 100 oasea of cancer of the pyritora einus. Those were, you might say, your clinical impressions of those oases, is that oorrtott "ANSWSA, Yes, I"se that as a general state• s,ent snd I said the average patient is a heavy smoker and is or has been a heavy drinker and he is of a oertain age. I didn't siyr he was always. ~ 0 N 0 co ~ ~ 0 v

579 (192) under the infozmation I have at this time. "MR. FI3LDs Nox Dootor, taking those things that he asked you to aesume, such as they are, and the ones that I have'alao asked you to aasume, would that oause you to ohange your opinion previously expressed on the direct exaaiination by me in March of 1959 that Hr. Rose' laryngeal-pharyngeal cancer was on the basis of reaaonable medical probability, directly caused by the smoking of Philip Morri,s aigaretteet Would that cause you to change your opiniont" ) I

579 (i41) d I "QUESTIONr Now it you are going to use the term partition, what is it that keeps the food that passes over the pyriforra foasa -- what is it that keeps that food froa going down the windpipe through the larynx? "ANSkERe That is one of the nWroteries that nobody knows for sure, but we choose to use the word 'valves' when we talk to people and when you talk about valves of the true vocal oords, and there is also another set of valves above then called the talse vocal 4ords, the very superior border of this space we are talking about, the pyriforts, has a small muscle -- the epiglottio told, which helps to close over the larynx so that food is directed laterally insteaA of down through the voice box. "QUgSTIOAi: Now theae epiglottio folds, there are one on each side or around the larynx at the top# is there not? "ANSXERs They are the top of the partition I am'.'talkirag to you about. > "QUgSTIONs So that when you are inhaling air, isn't it true that the epiglottie fold folds back so as to let air into the larynx and in so doing partially or wholly obliterate the pyrilorw sinus? "ANS"WERi They'don't obliterate the Dyriforw sinus.

579 (153) I \ from individual to individual. %iS5TI0Nt All rigbt. Wbat do you believe to be the Caote e,a to aaueea of aaaoer of the pyriforrr aiaua* if you bave an opinion? "ANM=t I thiak that dmakiag tobaaco is a prim oause of o8aaer of the pyrifora sinus. Ne viU oe~l that the prime caroitiogenio aSent, the agent vbiob perhaps iMi,ates, begina# the vbo].e chain of events wb3,ob ends up in somatbing we oe11 aaooor. Perhaps we aeed another aFoat that xorks with it to some iadivLtluels W in some perxsaps we don't. "QMSTIONs woll, let w ask you tbist In car~.cer of tbe pyrniform siaua you gave us tuo awbile ago# one was toba4oo aud the other ves driAYciag vbiakey, "AMWSRt Perhaps, aloobol. "QMST?AN: Do you emaider beavy oonsumptioq of aloobol causally oonrneoted to pyriforas sinus oanoert "AIMZRs Going baak to what I 3ust said before, I saitl that swki.qg tobacoo is probobly the prime oauae. I said that there migbt be a ooroaroinoger,la ageatp acting together they migbt increase our risk of taviag a caaaer to that are+s. "QLWTIOIqt Anad based upon your opiaions Dootor, would it be,possible in a givan iadividual for heavy conni.~.Mdt?,oa of whiskey to aauao a pyriforc~ fossa

579 (291) "MR. FIELDs In 1942. "MR. HARDY i Trying to see whether he had a problem, and he concluded that since when he went on an evening of drinking that he did not have to have a drink again the first thing the next morning before breakfast that he did not have any problem, and that he did not drink during the time he went to Alooholios Anonymous and didn't drink for about a year thereafter, and then he resumed his whiskey drinking both bourbon and scotch as he had do,e in the pastj that on occasions he had as many as ten or twelve drinks by his own admission tn one evening= that he was on two occasions involved in an automobile aaoident where when drinking ten or twelve hii;hballs or having had tsn or twelve highballs, that he has on occasion when drinking been sufficiently under the influence that he has gone home and turned into the wrong driveways at other housee= that on one occasion when drinking that he was on the wrong side of-the road and hod an aaeident and was arrested for drunken driving,'. and that his drinking could be so categorized from the time he was twenty-nine to thirty years old up until the time you operated on him when he was fifty-txo years old. I think those are the ones, I may have another on*, and I oan not fill out t:ie aoaplete question because they are the only faots that I'm able to hypAheeiie for you

579 (196) pickings Mr. Field refers to nou, I dontt want any in• ferenae left those are my only objections or I can go through with thes aggain. XR. YIBLDs Plea.s., Judge, I donit want him to go through with thaa agsia. THE COtRTs That is agreed In the record, that all of his previous objections previously made to the hypothetical question goes all the way through to this Question. MR. FV=: All right. IKr. Hardy, surely you will extend me just these last few links so the jury can get the context-- MR. HARDYs I certainly xill* m. FnLD (Reading)s "Nox, Doator, taking t2»ao things that he asked you to assume, such as they are, andll I the ones that I have also asked you to assume, would thati cause you to change your opinion previously expressed on the direct exemination by me in Maroh of 1959 that Mr. Ross!. 1a..~yngeal-pharyngeal cancer was, on the basis -of reasonable medical probability, directly caused by the smoking of Philip Morris cigarettes? Would that cause you to change your oFiniont "AN3WERs No. "CM'STIONt And wouldu you still consider that it was the smoking of aigarettea on the facts thAt Mrv

579 (154) aaaoer even ttou& the t:an didn't swke? "ANNTRt And I told you before that I dontt ~ think I have even seen a patient vitb cauoer of the ~ ~ pyriform sinus Wto, drank only; hc muot also be s heavy ~ ambker. "QU `"TYOIt And this ia based on a bciry0red cases we tetkec3 dbout? "AMMs Xes. "QUESTIONs So tYratwst all of tbem that you have seenp both drank ats`t smkod in thoae tsuadred csasss? "ANRtrszR: The majority of tbn have done botb. "Qt= ION s An3 let ©e aak yous If there !s any way that 3rau can conalude eo far as your opinion is conaorned as to vhother the cause in your opinion is mo)sing or drinking wbigkey? Ia there azq way you can Qietin6uieb between tbem as to what mi&t be the cause or whether tbey both work on it? "ANSWERs No, I oaanot aay tbat,, unless as I to you~egaia-~' M. FMUD: I caps t bear you. Mt. HAtmX: Doo't you have a oopy? MR. F=s Yes, but I ean s t bear you. Mt. HAMYs I am aot reading to 7ouj I am reA•1 lqg to the J11t`y . MR. FI= t You drop your voiue-• IWiil Mo.e

579 (245) iSow, Your Honor, ma,q I pass the depositiotr-- M. P37Wi x aia SoiclS to Xead ter deposition, am Z em not going to agzvs to it aoa. Kt. HA=s I uouM like, on the sam* rul3.ng that be asked rs3 to pemit him to put the hospital reoords in, *iaae be Wys be is going to xoad its tba" is no question of identifiteatian, at this point vbmv it is desorib©d, I would like to psas it to tbe jury. M P.=t Jtulge, I take it it vould ooms mob bettver Wben ter deposition in read, beoause shs cmrkg on it szd there is no sonse of him baving to paas it two or t3ree tl.mes. I am not trying to keep it !`mae the jury, but this doesp't even refer to it, kouldn:t ba,ve any waniag to tbem. I want to pass it to tttem wben I read bk3r depo8ition next " she is asked to mark on it .ftat is all I am sug,gest 3.ag. M C4W: If it would be any help to the 3ury, vby not pase it to them ri&t aovt t~sR obSeotiod. :o ICO . That is all rigbt. I bave va'. MR, HAIM This is Ekbibit 4, with the osrioer• ous area outlined In ink. I Will pass it to the juacy. THS OOURTs It is agreed, is it not, that tb!.s wii,l be 3.ntroduoed in evidenoet MR. H.:'~4Ys He eo stated, Your Honor. I will

579 (149) oaooer without tamovitG the laryax. . "QUEMONt Iidvf LOotOZ+. Co jou feel that on a soienti!'io basis that you know the aause or c.auses of oaroer of the pyriform siaust _~ "ANUM No. "o.tsfiiOm And do you know of anyone in the eoieotillo world vbo purports to know the aauso or oauses of pyritorm sinud canoer? "AtoMt no--on a eoieatifio basis? 'lq~..~'1`I'4Nt Tba6t fs wtat I megq. At3d by tta6t I em referring to a basis upon vbiGb saieatists formutete their judgmnt, aad by soientists I cn referring to mli.cal dootbr$ who codeora themselves-wor Pb.D. Ie vbo concern the=oive9 witb these tblags on a sateatilio basis. Nov based upon the present aodioal et4 soientifio kaodlede©, it voul4 be iarpossibie# vould it not, for anyone to express awdiQal W saieptifia opinion as to tha cause of aay partioular astritora sinus oancar vitbout r33ortfag to opeoulatiott and guesakorkf "AIMMRs IQo. '~;MSTION: That is not ?.aposgiblet "~1,,'slERe No. "omm,TIO:is I unde~: 3tood 7ou to ss7 that ttiere . . vaon 't o.ny "oient 3:to taRts for trWwlae tbis4

579 ~~55) over bsro if you are going to drop your voioe. M. HAT~sS.'s Is there anyone on the jury abo can 't tsear asT `I'fM COUnTs I,ett 's ooAtibue, ~,'~, HAMY: Thank you. JWge. 'We vill sew it is my larynac, a»d not wy pyritorm fossar is gettiag a little tixed* mR. FIMDx I will ap,xee v itb tbat . I dou 1t tbinV you.aid it doliberately. !m. Bra=: All rsgbt. (Continuiag readings) fto, I cannot sarY tbat, un7.ess as I told you-a~3n, it 13 oup clinical impression tbat a aan must not only be - it be ia a drinker, he M&t also be a nmoker, and unlecs be is both-At least a ewoker* be is not Going to got car»er of the pyriform sinus. That is the avez%6o patieut I ent talking about. %,I=ZOris It tfe is not a smoker, you aontt expeot biea to got aaoaor of the pyriforaa vinus, baW upan-your experienoe4 ' "A.~'73~,,TRt 't"bat is riabt• "O,tUMYONs In tbese buadred awsO ad i.! W ia not-• "AMMRs An1 I wigbt add, you keep te3.iciag abo s hLmirc-d casda. Ce„~cor of the pyrifora sinus is a rare diaeaso in the ovorall picture of Canaer of the pbax'„'nx t

579 (159) Fim t But be dida't tipisb, let btn 'Mii4. IiaAT~Y: tdeil~ app-vvatly b0 do©eD't vant a@ to toll 7ou vbat I t-Mv, Dootor, 00 Juat go abeed. "M. - F=: Doa't iaterrupt hiaQ. "tm. H&aDY: I viab you vould sbov oep it eocncftcZ haa aomO out on -titseM- . AAnrns FublZahod in 1;'S5, fA 3tudy of Znvironmontal Plaotors io Caaaer of the -Larywt.' "Q=I4Ns By vt>omt "MI-MRs VWer! Brose " Day. "QMWIONtThat is wbat I was referriag to. "ANS.tE~'ts I knew 7ou vould. 'Qt~s0,TZ4tts That is ttse one I was ta3ferrs.qg to g•abLle b2.a'd vben I was rWling,, but I was wonderit;g i!'--nov is that one of the tbingm that pu aa,q loma a ka,-sia ia your judgwnt for your opinion? "A MSM: Is that art 3.ale here and availsble t Ferba.pss iu total or 3ust-» . "Q=TIONs I t:e1.levo that.this is the wbole article. Is that tbe one that you refer to? ".~,~tMRs Yos. I could r0,a4 yoy a atatem+Mt froa thR.o a.~Ucle that ve have just tsl!:nd about it you K-; t.~;, ;, i:~i r~j;-,ntn on rt tt~ c~ovent, hootor-•

579 (178) V9 papers and artioles that the soientists gight have done, because I aar not a scientist s,nd so I am here quoting rrhat others have said. Now I personally have never done any testing of irrit4ting properties of cigarette smoke on rabbit's eyelids. I trust that the authority that I Quoti ts honest; "QUSSTIONt h'ell, I was referring, Dootor, to your telling me a few moments ago that those portione"-- is it portions or positions? TfiE COiTRTs This is a very poor copy too. I think it is portions. MR. 2i0LTZMAN i Portion@. AtR. HARDY (reading) s"Q'UBSTIONs h'el2, I was referring, Dootor, to your telling me a few moments ago that those portions that you set out here and gave to -• the staff meeting at Mayo's *ANSWSRs I chose to believe. "QUF.STIONt That is rigfit. . > "ANSKERi And I ohose to believe this author. "QUESTIONs That is right, about the standard test? "ANSWgRt Yes. "Q,VESTIONs Now on that same page, before you stactsd 'ceferring to authors you did rQoogriixe that inaofar as proving aanoer of the mouth or larynx was

579 (161) do you knov how may oasoe of pyriform sieus were inoluded ia the a©riea of aases reviei+od by r-r, wypder under the broad alassif iaatl.on tbere? "AN3Mt No. I would be surprised it tbere was wre tbaa nine or teo. "QMTIQT4 All rigbt. Now I refer to Table 16, and do you f iud there any pyriform sinus oanoers? "ANS6TsRe Xel. "Q=Ti4N: Dov my p7riform sinus oaqcers do you find there reported by rir. Wynder in this artiole? "Amms Three oases. "QUMTI4M And would you please state for the record if it 3s not true that only one of the tbree aasoa of pyritbxbs sinus oanoer was of a sm4ker and ttsst that one smoked nine to toa oiSmsottes. "MMS And I would like to tell you to Table 16 be is talking only about female patients Witb laryltX C8n* 81w. . "QMTI4N: Right. I am referring to pyrttorsa einug, you said tbero are tbree? "AN3tiSRs The title of the Table 16 to tbis, 'Some Paotors Found Awng 14 Femle Patients vitb iArynx Canoer, l and under the title ha is talking about fourteen cages, acx arqongst the fourtcen cpAea of.fem-a2.e putiente aith tary= canoer to has inolud©d ttmd oaes8

579 (195) X will agree it !.s for the trier of the faat, on the developwnt of cancer in his throat 40 years later Is beyond me, but I will aoriaede It goes to the weight of the question. THg CQUFtTs x don't think there i s any need to take any more time on that issue. It has been fully disGugsed, and protty well discuBaed in the trial Wiar to today. I think there still are some innaauraoies in the hypothetical auestion, and there are goms items assumed there that have not yet been yroved, I say though a hypothetical question doe$ not have to para- phrase all of ths evidence that has been adduQed in any case or will be adduced or doesn't have to be oonplete. Of course rvhet It may lack In completeness or in inaccuracies is a mattorcV arg=ent to the aury* and goea to the weight and value of that evidenoe, wd can properly be argued on those Doints. I am going to ad:r.it the hypothetical quostxon into evidence for rhat'it is worth. It Is a matter to be 4onoidered by the JM7• M, WtDYs Your Honor, I wanted to make this one observation, it is understood that my entire objection made this iprning-- THE COUM Ye a-• V,tt, HAftUys --Pnd not just tha little nit

579 (176) v7 in the article that indicates that this obsQrvation is soaeons#s other than yourst "ANS1+`RR: Yes, starting with the paragraph abore. After all, these two paragraphs have been worked over by our editorial departeaent, and app&mntly they ohose to do it that w.,y. "QUSSTI4Ne Hut you made it clear this was Vynderts idea and not youraT "ANSwRA t We hope so. We have got the reference above and below, lNynder and Assooiatve~. "QUESTIONt And does that mean that when you delivered the talk to the staff meeting at Mayo's on June 22, 1960, that you accepted all of Wynder's artiole and observationat "ANS'WBRt I accepted the observations which I presented to upr oolleagues. "QUES'TI4Nt You accepted those contained in this artiolet "ANSWERe That$s right. "MR. HARDYt For identifioation I would like to have this article marked as an exhibit. •(Marked for identifioation Defendantla Sxhibit A.) 1, "M'ct, H:tiR:)Yt t,9t the re.or•" -3how.t;iut thee artiale to Which I and the c3odtor hwe Laqn referrind has ~Aow t,een

vl 4 . K?. ~:NtIjY : Continuing the oross-examination ~ of 1?ro Devine, page 581 "QUESTZONt It is not possible for you to distinguish, is that oorreat! M _J ~. ANSWhRI I might have ow euepiolons, but that "Q118STION I Now you are familiar with the ~ article by Oilliam, S a dowski, and Cornfield, I believe you were asked sose phase of it before, but in any event the title of it ia 'Statistioal Assooiation between Smoking and Caroinosa of the Lung', but it reviews a number of different sitess are you familiar generally with that artiale! "ANSkERs No. I know it by title. I don1t remember muoh about its content an,y nore. Perhaps you can refresh me. "QUESTIONs It has been offered in evidenae by the plaintiff as Exhibit 7 to Dr. aiiliam's deposition, and I would like to ask you if you agree from your observa tionR on inorease of diaeaee at the partioular site,•i! you agree with this etatement -- thie.Kas in connection with the statistiaal study that they made, but I am askingj on your ebservations it you agree, where they say there was no suggestion at all between any asaooiation betxeen"- DharynSca7,, Mr. gield, I believe Is oorreot. MR. YISLDe All r3.ght. 579 (170) I

579 1~~~ 3:7-Y-st I )Fg'°) I HR. hInLDt (Reading) t "~£AZR3CY FaCA!SIR.~!'"Y4!ti "psY tM. P7FLDt "d~r;^Y02't Dootor, in the interim from your deposition arhieh we took a year und a half agog and for th• record that vae of 1959, T stant to state and aay to you for the peirpose of the reeord bor® I vent you to aasunne that the dFfordant got aroimd to taking John Ross' depositiort, your natient, jvst on the lst of ^eptembor, 19% and in that depoaiticn !!r. Rogs testi- fied so it xill nov be part of the !'aets of the case that are nov known, that he started drinking vhiskey hiahy balls, never strniqht whiskey, but whigkey highballs, whe he was about thirty years old; that re drank theq "oat frec;uor_tly on vee'cc+nd4j that in the early 19?+01 s he vas drinking to s!1:h an extent that he won} to an Alcoholios Anonymous neeGing. I want Vov to assm.e these as faot• because he hai testifi c+d to i t and told tt!e defendant Prout: it sust on the 1st and ^nd of ^m, tember of thit yaar* r:p,t he ver.t to %tcoholies. Anr,r.yrous to find out if drinking was a problom for him and that he finnlly eoncllidect t'Nret it vas noa t but that over a period of tiMe he did engage :n w}ia* I ask you to assum® is vhat -i !;ht ho d>3h^rihnd n i v-envy drtnkihq --• ":1r;'W~Rt "o*~c~t~*a4;9 r~aL? ed Rar;i.Rl drinkinR.

579 (162) of p7riform sinus oanaer. "qLWTIONs And of those tbree oases of pyr1fo; sinus cauaer, bow esmV does it ebov were smtcerst "AmmRt 'Uses snuff, one of tbem--- l--I 'doq"t know wtuet--the otber two appoxeatly dida t t us* tobaooo. 'ti?t'lMIONt Two of tbem didn't use tobacoog "ANS-Mt And fits witb vbat I told you soms time ago that in tewleti»-I eaid I bave scen eut ftzal.es bave oanoer of !te pyrilorra ai.uus wbo do not miolre, to are telking about a mle, I beliQve. N-MMION: k'e nre talking about xir. Wynddr to tiI'tiole noSia "ArmMi Yea. "QUESTI4Xs And I wiil ask you, do you agr®er wfth bie etgteraent that I rea;d you twlier In anotber aonneotZon, that extr3.nvio l,arynx osnc8r and bypopbm7nx annoer e" uaod iaterotsangeably4 "AMMMtWe doa 't use it that way. I doq t t us it that way. I aan not aVee# tberefors, "QURSTI01tt You oan't agree be does ia that artiole if be says so? "AN'St,ERt He Ws that eocsa people use tbes iutercbaaageably. %M-'3TZONt Some }xOople do j eod be does ia that article?

5T9 (200) "QU'TIQNt And that is your opinion, that it~ i . probably doe.st ; , ° ANSmt Z think it probably does. + . . ~ UQVgSTYON= And would you gtate to the court and the jury in your opinion the mechanical effect or physical efteat on the tobacco partioles••I s:ean, the particles in the tcbacco anioke, the physical effeatt what happens to them iu your opinion, when the amokre is slowed down as it passes through this tract end eddies and $wi.rla. What happens to some of these partioles! "ANSVIMs Xt Ss my suepioion that likely what happens ia as in the flow of ai_N or water in a river, you get a deposit••it settles down, aettles there. "QUESI'I(N: In this area where you found JohYs Ross's anncer# is that rightt "ONSVORt Yes. I might uloo say that there are other ways he could get this tobacco in the pyriform sinuses, "QUEST2t3N: And would you tell us about thamt _ -- - -u~5+~r~t - -.,.. .._..t t:e a • , - - - --oean.Ly L - -- _ n~ve l _ co • _ inn axo i.~ a_ . _xo . L Qr n Lav• it in the air atreanf actualls, he can have it in the saliva, which bathes this aroa* by s"ctllanring over it. "QtM:STxCNs And the jrfritorm oinuQes, which you have snid in eurtiny +t »ight down as fine ao you

579 (204) i 101w .. little,-am I correvtT "A.N3taR3 That is rigbt.* )tow to page 84,, Mr. I3ardy. M'R. HARAIt: 8ei'ore you -start reading there-- TH8 COU"3 I think this might be a good tiras tq quit for the day. M. VMFLD t All rightp 4udge. THE COURT: Taady and gentleren of the jury f we will now reoeae this trial until 9s30 MoMay morning. The Court cautions you gEain not to discuss this case with anyone during the aQekend interval, not to read anything about the case If suvh appears in the netiepapori not to listen to any broadoaat ot the case or vien any telecasts that thera might be ragarding the aase, we will now be in reaeam until 9:30 Monday morning in thi s case. (Adjourro=t) _ © MORNINQ Sb:SSION, M4NDAY, JtTN25,_ 19~62 3 v v ~ o~

vb 579 (175) "ANSwBRi That is right, and I was quoting Wynder and his assooiates. "QttE,4TI0Nt But you don1t quote them, you are stating the substanoe ot what they saidt "ANSw/8R = I am. "QUESTZONi And now arty place in that paragraph, and for the record I will read the whole paragraphs $The laot that there has been no great inorease in the incidence of cancer of the oral cavity in men is consistent with the data presented. There has been a moderate inoreas in the number of oases of laryngeal oanoer, again oonsisten with the known taots. The inoreass in consumption of tobacco has been aargely an increase in consumption of aigarettes. This would contribute to an increase in the ~ incidence of cancer of the lung, but not to that o!' the oral cavity and Iarynx, in whieh oigarettes play a lesser role than do cigars and pipes. Tlze latter two types of smoking have dQOreased slia,htly. These data may account for t}ie taot that, according to Wynder and assooiates'p (9) Semon in 1906 could describe 212 cases of laryngeal cancer at a time when cancer of the lung was thought to be most uncorsaon and when pipe and cigar smoking were more common than cigarette smoking.+ Except for where you say, 'aooording- :o k'ynder and Aeaooiatest, there near the end, is there anything else in that paragruph or any place else R

I 579 (168~ tbere anytbiug else otber than vbat ve bave talked about "Aft3aRs 2toae that I could ver'Ify right bere io ttsii room. NUMIONs Let w ask you xbet'ber or not it i a suspooted factor in ouwer C.ecierally as vail as pp~rifo fossa that a virus my be the aausa factor? "ANSMs I believe our scientists ia Vasbir9and elsewhere are begfxsnicig to believe that caoaer may oaused by virus or that virus my be mixed up in the ~roaess. "QW,STI0R Aad ia it oleo true, as otated tbers by Wer~ ,no, that in the madicai eod tho sc ient if !.o rrorld that oonatitutionaa, or syatemlo factors mv su$pected, wlaatber by you or otbers? "AN3Ms Some poopie do. "QttM?ANs Ya it 4180 tr4.e that some ip the aaa ats3 do3eotifio world believe iu the embryopio aell rest tbeory? "AN3Ms iAor the cause ot some caacers,, 'tos. "QU3TIONs And is it e.tao true that autrs. tiowl detsal.etialres-• "AINSWRRs Again, sugpQOt. "WOTI4M Aad, you, of cow.-ae, said beavt e.lccbol. r;onemuc-:ption a1ong witb e~:nking. Nov is it yoaaible for yau to di:tt3,t~guisb betwoen the cnaoer of i• 1

579 (203) "QVFST20Ni Now in that long experieno• stretching from 2943 now to date here at Xa~rol a, hav• you ever seen and obaerved oancsr in a non»emokert "AtiSIMt not in Ma. "QUMI01s1: Not in menj that is in tbe adult malet "AXSVtSRs Yes. "QUSSTIONt All right, end is that one of the bsces which has led you to the medical opinion expreasea in this deposition that it was the suokirig of Qigarettes that caused John Roetu$ cancer? "ANSWER 1 Yes. "QUESTI4N s At the site where you tourA it? *,ll2+iSWERs Xse. "QUS°SfiI©Ni ltow then I refer you to the article that counsel for the Philip Morrie CompW asked you about a short while ago by t#illiam, Sadowslyi Cornfield, entitled 'The Statistl.cal Association 8etaeeA ss3oising and Carcinoma of the S,=sg', in which he ° acknouledged that there also vere statistics set forth on oarainorsa or cancer of the larynx, and further I want to make the stateraent that he also mentioned that this article talked about os.noer of the pharynx and you 8f,id you didn't oare _to reclly accepE that becsause phru•ytvt aEa ~:Lzeh a very broad tcr:fl it would almo$t mean

579 (173) v4 0 "QUEsTYONs I am now referring to the artiele that you have there in your hand. "ANSWERt Yes. "QUBSx'IONs Khere you say with regard to •»! • ANSagR s Cigar and pipe sooking are more closely assooiated with laryngeal cancer than cancer of the lung. That is stated in there, quoting someone else. "QUSSTLONs Hoxever, not quoting anyone eise, look on page 351 where you say, tThis would contribute to an inorease in the inaidence of cancer of the lung, but not to that of the oral cavity and larynx, in xhioh oigaretyes play a lesser role than do Oigars and pipes.$ "ANSwERs That is right. "QUESTIONs That is your own viex, ia it not? "ANSWE'Rs No, it is not in quotations, but it is a referenoe -- a referenae which is again by Wynder, I believe -» hynder, Bross and Da~y. I might put this whole thing in its perspective here by saying that I was asked to speak about the pathologic effeats of s:aokiAg on the larynx and oral oavity, aad I said that I knew -• many of aW associates and physicians who were cynical and I put it this Kay, I said they were cynical physicians who s,aoked, and their attitude was when they said •prove ~ it' was the swie attitude as the atheist, who says ' P,rove ~ i ~ that God exists' , and they had the sause attitude. ; ~

579 (197) 94x I Roast case r~-''eslt+d to you, 88 given io that direot examination attd a;a known to you t`rom the hospital „eoorda, uould wu still oongider that amoking was the prime cause of his oanaer! M "SSk'ae I think it is. "Qt1.`~TldNi Kow, DoOtOr, we hava heen going here sinae two o'alook and it is ww tour-thirty, sA I want to make this extremaly brief. The pyrilorm simuts or fossa that you have deaeribed eni whioh you nentiored in your doposition a year and a halt ago as being the eite of his aoncer, do I underztand that yau oonsider th as partially within the arda of the larymp according to,.p::r definitiont "A1i8`-TRs Yea, I d0. • "Q'..~xZGn: knd, thervtore, you oonaidsr it snd hQva oataloguad it and do cstalogue It in your mind as a lQryngeax aanoer or a laryn;gaal-pharyngeal 4snoer! I "AN3tMs t do. "QVE.SxIdN i And rauardlese, Doctor ravins•, of whether one usea the ter ninology that others msy hnve wsod, uhethar it be a pharyi-Zoa1, Aharym, hypoDharV=p pyrtrotm riirn.i$, p;'='iforA fo9ea, p:xt of the lerynxa ez-trinsiG ln,rynx---reget*dlesa of the rppaioation of the tem• t-) Ao-cs•iba `.his V.roa, xfs- nt to gak you it the ~ c site of J'chn cr:naor, N hr-1•© you S'otir.d !tj ia a

579 (201) can to describs the area Nhere his cancer wae,, his loft pyrilorm oinus# state whether or Aot that Yies at the base of the tongue snd prooeeds from the basa of the tonguet ",lNS'Ri Yes. it does. "QURSTl4N: And ie it an open area from the base of the tonzue that can be observed by one jus4 looking down a parson's throat? "ANSU'SRt Yee, it le. "QttEST2©No And did you actually see this area when you first initially looked down in John Ross$ throat? "AKSWIMt Yee. I dxd. "QtTE.STYQN t And are there any barriers or oompaete walls reaching from the floor to the ceiiing, so•to-apeak, that uail off this cavity from air or smoke that aones into the mouth and goes into the lungst "AkTSMa 34o. "QUSSTzON: Dootor* willyou state for the i+eoord when it was that you first started opeciali$ing at the VAyo Clinia in the surgical aara and treatment of cancers of the larynx, inoluding the area 1nagn as the pyriform sinus? "rM`'Sat Sinoe 1943. _ "QtTRSTIQNs And up until the time of your I %J V V W

579 (182) "And the tissue removed and eXamincd and aoA• sidered in that study was from the inside of the larym, the trachea and the main stea bronohus, was it not? "AKSMSRs Yes. "QUBSTI42is And none of that tissue oomes from outside of the laryngoal airxay, does it! *ANS'ARs Outside of the larynxt "QUE8TIONt Does not come from outside the lary *AJdSVSRs No. *QVESTIONt With reg,ard to those two studies, Doctor, that we have juat been talking about -- the two exhibits from the earlier deposition, have you made at any time any studies with regard to the effects of cigarotto smoking or other tobacco e.rooke on the issue of the pyriPorer sinus? "ANSWE'Re No. I hardly think it is neaessat•y. "QUESTIOMf And you would say that your opinion with regard to tobacco smoke and alcohol and their relation here, is a personal opinion of yours as diss tinguished from a scientific opinion? "MR. qIF.bDs iIe didn It say personal opinion, he I said medical opinion. i "M#t. HARDYs A personal medical opinion of your, t

579 494). M, KARDYs That la oorreat. MA. FIELDt All right, so you are xrong the:`e. M, HARDY1 I didnt tkwm it: NR, FZELas I know but let's get that corrected rS.ght nou. Seaond, Your Iionorp the conPusion on the tirtt marriaga was ooul'used, as theDioture was ehcM here, but at least the mn did a4kno»ledge In the deposition to having been married three timea, Correct? rSR, HAP,DY i Correct. M. FI=s But just hhon he got divorced az;td whether or not it was annulled did not come out till here. I subm.it, Your Honor, that though that ma,y have some intiniteaimally mil, little nit oaourring 25 or 30 years ago,may have some little bearing on causation of canaer In his throat it couldntt materially prejudice the cane. VIR. HARDYe Now you will adarit, will you not. ., Mr. Field, that he testified he was rnarried the first tine in 1919 and that he was separated within two monthe and annulled within six months» FX. FJ.HLDs Yea, eir, and I will agree the tact ahows,Your Honor, that In faati he was mrried In 121 but when he was rpaz•ried in 1919 or i9~21 the riret tir.e, hor that oould make any ooncAivcblo ltiftt+r8nce,

579 (202) 4oposition a year and a half ago, I believe you teatitied that you have boen apealaitxing e.n4 concen• tratirg exolusiv©ly in canoera of the znouth an4 th:*oat which would involve thoge srela, havtnIt you? "ANSWhAs That is r1ght. "@LtMTZON: And have you continued in that from a year and ar.alf ago up until now? "AN`3 ttimt Ye s. "RUESTIQNt And did I unQerataM your tostimony to be, Dootor, that your experienee•-olisztval experxence, upon which you have based in large part your medical opitAon, is baaed on 1800 casesor sa of canaer of ths larynx he:* at the t:ayo Clinis, both through your experienae and those of yotr assoaiates as i a known to you? "Ait:jOtRs I said over 2800 oases. "QUESTION: And do you consider cancer- a!' the Dyriform foasa or sinuo aa within the category lorr your dofinitiob of canoer of the larynx? '. ~ ~ '~'~M-Rs Xea, I do. "@MM0Ns So that of these 1800 canaors of the lung, you can first classify lt down 100 or swe of those as being apeaifi,calhy larMoal canoers dealing lrit,h tae pyr: t'o:h:., fos38? F11:81:I:.R s Yes,

579 t15~) I c the thing that I have bcoa quoutioai., s• rbout•, is theiV any basi3 for your opinion atyl its formati.on othar thsa your aa n alinical improssions? "A=Mt Y©s. "QUIV-111TIOhs krbat is it? ' "AtOnIERt T'hings I have zoad, Poople I have talkad to. . "Q,1ESTIOMs All r1ebt= now I Wou1d like to know a3 to what you ba-vQ rra d on the sub f cot of pyritorm sinus caacer ard ito causation that forWs a basis for this opini.on. "M11MIER= You must bnow the answer. 'Q=TIOIft I dont t know of aaythina, "A.MStM.R: Wa havo talked about I it .Wasn 't thore a study €rom the Nstional Canoor Inatitute-- p~,'UETION! I u1l3 atatot Dooxorf to i7,q ktaowledSo-•" Field os'ked me to wait aminut0, 8nd I said bo--- AR. FIF.tAs I cai.4 vsit a tdqute and let tbe' dootor €inisb. :fit. 1MYt Yes. VQit a minute, Suat Iet the doctor Yiniah. I said, iio• said I aiu$t kt]ow." (Roa,dinQs )

579 (208) II the spuaraaus ooii canocr that John hose bad? "APt3X.Rt Yea. OQUMIdNi And on the basis of the type of tissue involved and the assoaiatioa between the aancer " the tobaooo smoke that you believe, the aausatl re].e,tionspip, can you see any reason to diftera entiate between tbese aanaers that you bave seen oocurring iodide the ].arynaval ae,vity aod those in the pyriform lossa area? Any difference? " . ' f ft . "QMsTIOPt: So wiil you state whether or not on that basis and viewed from that point of view, it ta imateri,al to tbQ belief, that is your opinion, , that emoking caused this aanoer, vbetber it bo loaated in the pyritorn fossa or witbin the interior cav3.ty, interior lorynSeal oa,vity? "AMMRs It is imaterial. "Qt=IONc And, Dootor, one laet subseats He,a$kvd the basis upon which you formad your medioal opinion vbicb you have expressed in this case, sp©oi- tioally vitb respect to John Ros$ and generally aitb respaot to awkicag as being a oauae of caACer ia the laryngeal area, including vitbia the pyriforn` toasa av.a; in your opinion is to`)woo e.vka.irritatini;. to the muoosaa in t1hese aroas?*

579 (i48) of the rva1lotiing pipe. "Q,UMIONs Rigbt, aad is it aigo to one side of the moutb of the windpipe or larynx? 'qUMS4Nt Dootor, I oaa get at it this vay. Just t®lIn me, was this canaor looated ia and ooufiued to the pyriform sinus on the left side? "1NSWn. t It scu+ell was. %UMTI4Ns Ali rigbt. I tbiak that covers it, Now the reason that you reaqved the larynx aoa tbe lympb nodes and the ritods is bQaause of the pcssni.bilit'r tY!at tbere tnic~t be a epreod of the aaooer at4 qot beaause they vere oauoerous at the time, isaI t tbat Qorreot? Xou'bave to do that to nrbteot the patient? "ANMRi Well, you bave &ottuo tbl.ags aalaced up ia that questioQ. "OWTYON= Wby did you iewve tbeta? "AMSM: We removed the alands becauso of the poaeibili.t2 of spread of this cs.ncor to tbem. We renoved the l.aryax because it is SWssible to remve that size oanoor vitbout rem4viag the 1,arynx.0 not beaguse I worried about spread, Wben we use the vo:b spread we are tbiukiag ia terma of Jumpiqq from oar place to atxotbar, say from taside to outside of the trroat or ouCelAe of tho i4sA4s ia the aeok. I removed the larynx beowao it wra lmnpoanible " r~wve the

579 (167) '~QM3TI01qt You aro referring to Ledermao4 WAM%Wf I v8s Qt2otilYs We2as1r "QWMIQIj: Nov do you eCtopt the distiactioa betveen aamer of the l arymc andasuoer of tbe laryqSM1 pbaryruc that he was making tbere? Anl do 7ou agree vitb that statement? "A.~TurgRt Ite•peat the ®tetadeat, please. "QU=ION: 'Unlike canoer of the larymc v'bars f e.i.lures aP ter rad io ther$py can f requantly be sa3.vaS0d by opc;ratiob, in tbo ]aryngea3l pb=7nx sucb opportunifts preeent tbomoolvas only rarely.l Do you agree vitb tbet? "A.~7-Rs Do I agree vi.tb that as a surgeon? I tb3.nk after radiation failure I can operate on a patient vbo bae bad a radiatioa failure oanc$r of tba opirlottie lusti as v©il as I can operate on a patient vbo baa bad oanaer of the pyrifor,x sirns or oanoar of the voc&l c3orde. "QU=YONt So that tbAre you wore just referri.ng to Ladermsn, but don't tgree vitb bia4 ' "ANSMs I was reviewing Ledermno but mekitag w ao~r.E vbether I eCroed vltb bia or not. Ttmt ia correct, you dlran't say ons vay or the ottwr. My vt: were on tto ozbjeot of aW eu~+;nrt t!%a} ~ oc: 3~w~~: c tt~E.N thrn ro~~,~ *,~* ovn 41tAto~ for for^l3.n~ .~ b~zaia for ;,-our opinion= is

579 (163) "AI45~BRt I su$peot if you look throug4 the artiole be does, but if you look at the table be doee not. Tberofore, we got baok to the aam problem. We are splitting hairs, re are tryiag to deoide vbetber this Gan_ bad_ aemoor of _ tle bypopb=ynx or oanoer of tte 1wync or-o "QUSTIO1s It is s matter of terminologyt "AZi3WIR: Yes. N=TIORs Nov reforring you to Table 5 at page 91 of that art iole, and see bov aatV pyriform - sinus caves wore roviEwod by Dr, kTyoder i.n ttat artiole? 'tAIMUt Sixtm canee out of ninaty•tbreeo out 'QUMI0N: Ri.gbt. Sixtean casfas/of oinety- tbree aases of eo-cg1.Y®d ©xtritasl.o ooncer of the larytnt vere aotuaily p7rifora sSnusT "AMM1 Rigttt. ';Q17gSTIt?Nt Any oonolueLcn that be drev vitb respeot to tbo eseooiatlAn of environaeotal faotors vitb extring io l,erycnc cancer, do not aeoessarily ajVly to oancero of the pyritorm ainus, do tb"t "ANM=i You ato trying to my that sixteen is not really enougb caees to a1eke any valid interprete:t3oaf NLE."MON: Rigbt f is that a fair statemnt 1 "AjMERs Yen, I'd hs.te to report, say, sixteeI L" 0 oasers of aancer of the lip e.nd uwke cnp r8a]l vorth:yhile I o V V w ~

579 (189) regard to Mr. Ross' drinking, and pursuant to that 3nvi- tation and in making answer to that q+-testion in the light of your previous testimony concerning aloohol $ you shorl!d consider that `'r. Rose from the age of about thirty -- " And the vi tr..os sasscc+d. "Pow old kas he when he came here?" I said, "F'ifty-tvo, I believe. rron the age of --. "~LR. FIELDi He was born at tho turn of the cer-tury, so it nakRs it eesy. "'fR. P`?~•GaAlt nefore the amtury. "'~. FISLns Vellj 099 or -•. TiART)'7t I stand ready to accept the invi- tation as soon as they Wiil let me, row from the age of approxivatQxy twenty-nine or thirty up until the - discovery of the car_cer in hi.ek ~yriform sinusq Mr. F.oss uas a heavy drinkAr. nh'A. ?IF,LDt Yo>> mean he has testified to that? IR. RAi?rnts This evidp:nce is in the record•on "v I his testinony. "R!R. PI'ELDt 'TR didn't mey that, but go Ahend and say that if that is dhet yo>>r proof !a going to be. "±_t. KARrnCe k*elt) he describes it as a soaiat Arinking, pnd in s~inhlyine fI-R fqoFt uh;r 'i iinAeritahd,.the o N facts to be tl:e sociAL drtnying extende?I to Vie noint~ m ._~.--_ _. __- --- - - . _ .__ ~ _- --- --___ ..-- ---__.._ --- --- - -- ._. .i P ~

579 (16~1 j a38 4 , eotimte of what is Viug oo. "QMTInps Nov insofar as reviewing a lsree oumber of oases, inn't it true or do you recallp and I am referring aov,- Dootor, to an artiole by you io Vol" 68 of the A.. Yl. A. Arcbives of Otolc~.~fagology at pe~e 58, vbere you refer to a Dr. Ledermm.wbo reported on 3.1.9 aases of caacer of the pyrifora sinug. Do you recall ttat! "ANSAMe I believe I revieved that arta.ole, y09• I 'QtJZ3TI4Nt And on pace 58 of your artiale, aoQ I read a port ion of it bers, 'Loderaaa also stated 3a another pa.per that altbough one olearly um not be sati.ef ied with the poor results obtained, the faot remiae that the lsrypgeal t=qrs are extramoly sinister to their bahavior and natural bistorys not only do the patients oome in an advanced staSe, but aome-c:onstitu• tiona7. or syetemi.a factors awm to be ooaoerned vitbia tte!.-initial causation of tbese tumre, and In the vay in vbicb reourreqce takes plaael. 'You agree vitb that statewnt you were quoting from or stating ft+oa: Ledetm4 "AMWTRo Ya wonrebp I believe that is so. .. "QUMIQas Now the ortiole-neitber Ledermanleartl.ole nor your article be're in roviouing it refer to

579 (209) :M. K4.~Ys 3'ust o miautee if the Court p1 I vili obJeat to that question for the reason tbat there is In this oase azs expressed disalaimer of irritation, both by the plaiotiff ss testiaariy and In the pre-tria proaeedipgs. "M. PTgSD= It la not off®rod " ats item of damage, Judge, but mmly to prove that it is tbe irritation that yroduces the vanoert that is his tbeory. I ":AM COMTs Yes. Objection overru7.ed. MR# FzEMs (s. inse ) 0»-"in your opinion is tobaaao aWke irritating to the mucosa In tbeae areas? "A2ti=Rs ©bs yes, "QQIMSTYoNs And In your opinion does tbe irritation that you say tobaaoo smoke produces In this aauaose or lioizig of tbese aressp does that irritation play a wchantoal role 9.n your opinion in the proaua• tion of the canc©r that sometimes results and you see? "WURts I think it pls~,qs a role In the > produotLon of the cancers that ve see in tbis areu. "Q'tMSTIONs And that is based on your medical opinion? "AN3WERt Yes. "QtEMONs. Fromyour olia3.ca1 exportenoe 8nd alao your knowledge, that ia Wbat you have telked about

IF tv ) 84 579 (187) drank beer, and for that reason that, even es to the limited additional material supplied here= it is ingcaur• ete, factually incorreet, and gives the doctor an isprorp pioture of the drinking habits of ur. Ross. In Rdditiont mll of these other incorrect facts that were in the first question could have bsen corrected haral but vere nots only the drinking, and a fev self-sorving ite+sa about maintaS ning hi s job at the 3©tter 'Rhisiness %reaue roY those reasons I object to this (riestion as improper and as prejudicial to the defEr.dant, to have the dootor again express e.n opinion on incoraplete hypothetical facts. M. FIEL1h J>>dgQ Qibson, boS'ora you rule on this point!. I want to rend into the record the colloquy that occurred between counsel at t!iis Jimcture, including the objc3etionsf andmycall on the, to, at that tine, supply evidence. 7P.t, iiARI)Ys I will raad rny o,an. In connootion tiri t;1. my ob j cction , I nl so will read thi s t . 1'MR. iil'.RM Just a mo-,ent, noctor," reading this objection, now, irom tte deposition copy, "I want to objact to that vlostion for the reason that in askxng the doctor to make the additional s.sstr"p .*,ionsg crnrrtsel does not } ai rt y and accuratcty rortray t'~n evidRetee with regar!M to !~r, ??nts' drirVinr, nnd fo» that reason

579 (185) .3F-Y-a 1 , "^t1E:3TI4Y (continuing) And ha so used that language in the deposition, trat they took frors him. I ask you to assuMe tratf but that during Rtl of this period he maintained his job vith the A.etter !R+asl,ness Aureau as one of their eXeoutires and xorkers* and he also was married again i.n 1945 and has now raised children during that period and into the '50's9 and that after attending these roetings for a year he no longer felt the need of them. That In the five to six years before his operation here at the Mayo Clinic he was only drink- ing occasionally$ a~:iefly beer# so that at the titse he came to the wayo wlinia and rras asked by the Clinic on history 'use of alcohol' he listed nodPratef but I do want you to assume that there was a period In the early 1940's when he might have been described as a heavy drinker or social drinker. Asking you to assume theas matters as additional racts$ would that cause you to change In any way the opinion that yau expressed earlier in t.h,is deposition, or not earlier In the depoeition-,but xhen your deposition was talcen firs*. In this cane a year and a half ago, when you said in response to the hypo- thetioal Q1testion that was asked you Rnd based upon the Asstu~ptions of facts then given youl when you flaid that 'Ar, Rosa' laryngeRt-nharynp.,eA1 cAr.eer was In your opinipn# on the basit of reascnt+ble rAdical probability as

DFe2 "pK 579 (224 ) deposition juat as we did in the other onet and I think that I vas pArrtitted to road my own exan.,ination in the -- other one andl after he has offered it as his evidence TIM CCrJRTt May I suggest that you go ahead and read the quast.ions from the deposition and let Nr. Field read the ansvers. !^i. iiARDYe tet 4r. Field give the anevers? All right. "DIRFCT RXAMltjAn4j R, iiARF1Ye F1Ye "Qt1'S ;7C?1: Will you statC your naieq p? ease4 "At13W;Rt `!y nAne is Mtth M, Parkhill." !iR. FTRLDs I lmav you would put mar !n a hole some ti+ayq Mr. Rardy$ but I never thought you would m9ke a Woman out of ine. "q-tTQSTYO1~r Where do you live? "AF.£3WM In Roahesterf *iinnesota. ' "VE911ICRs Mat ia your address -- your honie address? Minnesota. . :"?i;Rnpd? > "AM3WE?tt 624 Fourth Street !VatWesF, RoohestE~$ "CVFSThN Are you marrted'! " R?MERt I a-t not married. in vha*. profeesinn arA you •~ ~ .~ ~ v~

579 (188) a?(v)s5 i gives the doctor an insufficient picture of the naFure and extent of ?#r, Ross' drinking to tie in dith the doctor' s act.nowledgrent that alcohol is closely aegooiRte with this type of canaer." qP. FIRLD: To vhich T then called on Mr. Hardy and the defense comsel y- (Reading)s "v,R. VIELDt A11 riet, and in view of the feot that you have nox rr.ade that objection I will Qall on the dEfendants through its iawyersq since this is a depos!- tion and the doctor ia not testi:'ying In the trial* I call yoli nou to cots forth with any additional facts that you claim you will have e..~d that you v.itl present in evidence vith respect to 'tr. P.oss' drinking and drinking habits, so that the doctor in fairnesR May have t~:ose in answering further questionin.g on this subje3et of the ceuse of this man' s laryn'seA1-phm-meA2 canoer. I call on you nov to recite those that you ray yom intpr.d to try to prove into the record, "HR. HARyY: I decline" -• • M pARDYs Wait a e"inutes Iwill read hy own. MR. PIELDi All ri ght. Tfi!. nAR?rifs (RePding)= "1!% M±%nYt I decline to offer o»r evidosnoe into Ve rec.ord, b•at I wilt 0.cc!!T)t the inviaati4n to. moro ~+ 0 N accurately doRaribe uha; S.a nlr^ady i" thQ record with ° ~ ~ v+ 0

579 (227) OF 3 5 "n1tLSr10h•t F;ov long have you be$n i.n that position? "AttVERs Svor since I went on the statY, I vent on the staff as a consultant in surgical pathology. "rtMS^I Jps And you limit your yractioe at the Mayo Clinic --4 "AKsWERs Entirely to surgical pathology* yes. "OUESTIONs Ras that been true ever since you cane to the r%yo Clinic? "AIN."tERi Yes. "(Zt1B3'._*IO?ti You have never been eng8god in the general practice of medicine? "AN3t,tERt No, I have never been engaged itt the general practice of medicine. "PUTS:'IO11i And you never had any other speo- ialty than surgical pathology? " AN.;NERt Nos that i s right. "OM.g:'IOD;t Would you describe briefly vhat are the duties -- 3ust generally - of a surgioal path- ologist? "AhS'WERs well, the duties of a surgical pathologist as vo practiae it here are three thingsl as far as actual practice of pathology ie cor.oRrned. We pxaiine all the tissaes re-xvocd at opArationes vake "tcroscopic sections of then, rnkf~ st diap,nosis on *.haf

579 (l66) 4?(V) 113 J t ti distinguished from mgre posnibilityt directly caused by Mr. Ross' s^~oking of Fhilip '!hr.ris cigArettes ae esked you in that q~~~estion? now asking you now to make thes• additional assunptions of facts with respect to *iiss drinking g would you --" 4R. iiAttDYt Just amoment. If the Court please I object to that question for the reasons stated this morning with regard to the hypothetieal question In the first deposition. ?or the further rpASong I call to the Court's attention tMat, by the time of this derosition, rcanyt many -• not a11 9 but many of the facts that were wrong in the first (piAstiont an I pointed out t!Lts morn- ing, in the hypothetical criestion in the first daposi• tion, had beQn revealed not just to his own counsel but in deposition forms and that at this points the miestion just read by 'qr. rie'Ld, he does not correct the reeordl he does not correctly describe his drinking, And in one particular he asked the doctor to assurne that1 in the five,. to six years before hi A operation here at the Nayo Clinic, he was only drinking occasionallyg chiefly beerg so that at the time he oarnR to the vayo Clinic andlaskE+d as to the use of alcohol, he list~;el "'+odarat®". 'r}:e r:an testified from the ui.tnAss stand r'hgt after a year in Alcoholics anonyv~c»>s bR rnn*.lrr.iod 4rinking at the same old pace mp lmtil ht s nporat-ion, k-nd aftRr ~is operation i

579 (206) to 89,9 and then slong with the part i.a the fir$t rnrti.oa of the depoaition-- HR. FIFLDs And ia the f irst depositioa, Mt. HAFOY: Yes. Those parts we oan disauss with the Court furtber. MR. F'IELD s All l'1$bt. THIS COURTt very veli. tM. HA=t I think the raaord sbould sbov that starting oa pa~,^~e 84 and continuing to page 88 defendant Mftkes tbe sar* obJeation that wss cade to the portion of tho first deposition that has been oaittad up till noa,, W tt3en we cao elaborate on it ?Ater, M F=Dt Going to pege 88 now, Judge C}ibson,, and for tha reaord, oonti•nuing from the aecond depovition of Dr. Itenneth Devine, further oross-examt.oatioa by the defepdaat, taWa on the 9th of 3eptember 1960 at Roohester, lHinneaota. (ReadiQgs) "QMCSTI4Ns And do the patients, the as~ 18)0 patiepts that you have spoken of from your experience,# that beve come to the Myro 0linic, s.re they geograpbi• oall,y confined to aertain areas of the United States or do they ooaoe from sll over the Mited States? "AN%=t AU over. "QMSTIONt And whcsn I am talking about tbe 1800 pntienta, r-octor, you ut3der9tsM T am talking

gFs12 579 (234) the jury has read on there or also deter t1he reading until -- I don' t want to asis q~j estions vhile the jury is reading.. MR. FTLLDt Your Honor, that is part of the trouble here, when he kind of horns into my doposition. I xanted to otfer this as the plaintift' s evidenoe% the deposition may properly be offered by either partyt but I did defer to the Court' g suggestiong and he casts me in the role of Dr. Farkhill and qti4stions ne, even t1hough 'it is my own evidence. I don't xant to take tine to do that. I am sure the jury can read that vhile •- ,. . 1IARD`t: All rigrt.* I aill go Ahead. 'rI3E ^OURT: That is the report of the pnthol- ogist! m-'t. PIF.LDi 3imply the report of the pathologis on the very thing she !s talking abotit hera. If he doesn't want to do it, Iwi21 go a'head and read the ques- tions and the ansvers, Judge. ITft. 'WDXs I would have the sAMe objection to his reading it -- k-iR. FIELDs I would think you would, yes, I would think ao. . VFF ^MRt?s Too ray proceed. I think the Jury ts abte to, Z ist.o.n. to i} Ard nxA-4ine the Fxrl.blt nt t.'ie Sii"le ti1"e.

579 (233) $Fs1t I TIIE CQUttTs Do I have the original of the depo- sition? Yee. !`iR. RkRDY: It is E7chibit Z. Is that the hospital record that you offered as an exhibit? MR. FIFLDt What are you talking about? .'~R. HARDYt 9lthibit 1. MR. FIELas No. That ia this right here (indi» oatin;). TKR CoCRTi '!'hose are Fachibits 2, 3, 4 and 5. (PLAI1i~IgF' S EXRIRIT 49 WAS MARKsD FOR Inr?rTiFiCATInn. ) M. F'IELnt I%rant to offer 4n evidenne Ptain- ti,ff' s Irachibi t 49 and hand it to the $ury. ?M. :IAitDYt Let me soe it before It is accepted in evidence. I have forgotten what was on it. Ro obJeotion. TH?3 COURTt It s,ritl be admitted. (I'~Y.AI?tTIFF' ~~'ViI3IT 49 WAS RE..^EMD IN EVImcm. ) X.R. It:1RM T'here is considerable raadf.ng.on that, Your Flonor, and, since this is the defendant's direct examination -- ?fit, hIELDs r-ov, Your Ronor -- 'rR. HkRT1YI k'ait tilt I finish, ' I I.M. ;'IEr.Di ¢11 riq)a. •fAt,1`rt 'f volitd tike to either vait until

579 (228) ]M3Fs6 and report it to the surgeon. We also examine other tissues that Aro rem.ovAd in the .^.liniof little biopsr speciatensq mAke sections of those and diagnose them., and the same thing is true of tissues sent in from outsidej usually the microscopic seotions vith exandnation and diagnosis and make reports on trem either to the olin- n ician hore if it is at "ayo Clinic patient or to the pathologist sending it in if it is not. In addition to that ve do have teaohing duties and ',old oonferenees and so on, but, of cotlrse# that just happens to be vhat we do here in addition to doing pathology." M. HARDY: Is !L all right with the Court, while we are reading the depositiong if I sit down and read trom a sitting position rather than standing poai- tion7 I uill do it either vAyq Yovr 'qonorq hut I thought since xe were reading, mRybe the rule about standing might be relaxed. TfM COt?ItTs That is agreeable. "P,TI?STI4Kt Whenever a surgeon does an oppra- tion, :s it a part of your duty to exaTine *.he tiasuR removed for cancer or other disease? dieeases4 tissue. "A?t~{RRt "Q'r':"'*In?1= To wtamin© it for cancer or other Yes, RftRr a surgeon re!rovAs *.he .

579 (237) vFs15 exa~nined. "^TJESTIONt Now, what was your pathological diagnosis, that is your findings, concerning the tisa~aet. "AN~t~ERt i~y diagnosis or rr,~ findings xert aqua~,~tous cell epithelioma. We called it 4rade 3* indi• cating the degree of malignancy, involving the left pyri- for~a fossa. On my report I mentioned the neasurements that ve roade of the size of that lesion. "QUSSTIOl~t fiow did you find any tnalignancyt cancer, in any of the tissue you exaMinedexeept the left pyriform fossa? "A?~zS'~tERt ?:o, just in the pyriform fossa, andt of colirse, the tissues i~nediatr~ly underlying it. "QUSS ~'IONs Did you find any eralignanay or cana on the inside, the liningp of the larynx? "AN aWERt In the lining within the larynx I found no cancer. "AIIESTIoNt Now would you state for the Court and jury the measurements that you made of the cancer ~~.~a~~ in width, and where it was measurcd, .4 centimeters in "A~iS~lLFtt The measurer.+ent that I*±ade of the cancer was trree eentimeter4 in tengt?h, 1.8 centimeters which you did find? depth. 1:ow with regard to your deroription

579 (231) history is R little mifimary line givinP the di.Rgnosis. It doQsn' t give tha souraeq and that original petboloRy report is on file !n tigstae registry and should have the source on it. There may be a letter here - should be a letter here addressed to the individual who sent in the sections but I don't aee it. We have that report in the Clinic and can have that report sent for fro:e tissue registry." XR. FILLDt And I think, to clarify this$ ve probably ought to read -- "Mdybe xe can 8hort cut it." "M HARriYt :ll!aybd we can short aut. Can we acreel =ir. Fieldq it vaa Dr. 1ielvig that did the biopsy and sent in the slide? "mR. P''IRLDs b'ell, I don't think he sertt it -- not we couldn' t agree to that. ""tR. TIARDYt I think it aas brought by the plaintiff. "'".Ft. CAItR: 'rhe biopsy was nade by lrnisht. "MR. FIRLAs The biopsy was ordered by Dr. • Kni ght. I don' t think we can agree on that 9 but ve can agree that a biopsy was made at the direction of Dr. John Knight in Fnnsas City* v'io was ris ph,ynicianj md that the man that took that slide from the biopsy brought it up bere. "'^t. t'ArtRt And brought it horqg t'he+ patient

3Ps7 579 (229) _-^- "ANSWERt Xest it is. "4.MSTI4V= And is i t your duty to valce a diagnosis in that connection? "ANSVERt Yes. "W33TI4'Nt I vant to direct your attantiong Dr. Parkhill.t specifically to a patient at the ''%yo Clinic In February of 1952 by the narto of Jo!m T. Ross from the Kansas City area -- )'errianj ICensast I behieve he lived at that times and ask you if you have vith you the recordo of the uayo Clinic pertaining to V'r, Ross? "At'S'JERe Yes, I have his Vayo Clinio record xith be. "f,MS"IOMi And Insofar as records at the Meyo Clinic are concer:ledt are they also identified by nvraber? "ArV. S,t i'or a uayo Clinic patient# res# they are also identifiod by nuMber. " =5TI0Nt tJhat is the nunbEr showm on alt of t-fr. Ross' records? "AMi. ., t On Mr. Foss' records !he nu:aber is 1-E344-113. "^Tw;'I0n And vere you the surgical patbolo9i s~ Who examined tisauet inaludinP; the larynx and surroimdxnR ~ tissue of 'fir. Rosa? ~ " A',N SR t Yfs t I 8-4 the pathol.ogi st who exaM- d f l.nod ttie tissve t1hat vas ro^+oved h9re at the "ayo C1lnic

579 (156) sad larynx. .4 trarvtir®d ourgica7.ly tx-vatcxi aases IS a large group of oasea of o.3noer of the pyriform tiinus. "RMMIOTfs So that in your bundY+ed oases of tb rare diseaso tbat you twe revieved, If be has cancer of the pyrifdrm sinus you expect to find that be botb dritiks and arnokea, or tsas done not "AN3Ms Ri&t. "QUMIOns And you aan't say which of tboss two fgotors aauae a givea awoer or whether both of tbem do it 14 oonbinatioAt" NR. F== You don't cosd to reM the objeatioo. M. HUYs I em vadirg dova to where the witness ansvera. The witness eayss "And I<:dr-'t agree with the way you put it." "MR. HAM All ri&t, you state it tben. "ANSMs I V ili state the ansver to vtet I think is your question. I don't think that drinking Yhiskay alone wiii cause cancer of the pyritorm sinus. I thirik that am4king is the pri.ms cause of aanoer of the pyritora sinus. It a msn notonly swkea, but driakei his abanaes of getting canaer of the pyriform sinus are greater than it he drinks otsly-." -, tdR. FT=r Aatu..y, I think you viLl agree that ].ast word s:vul,d be a^aoked.

579 (215) swkQ sixtetn or moro oigarvttes a day.t 1bw do yoU or do you not agroo that the partioular aesooiation of aloobol is with the Qxtriasio oapaers, or oanoers of the pyrf.torm tossa or typopbarymc? "ANSMi YQS, I tbiak that I-v i].1 go atoQg with vbat Wynder said ttore, it you wapt to ukss that word extxinste. "QUMIONI WQlI, bowever you alassity it, tba ara located outside? *At1T%7,Ri Yee, aQt=I41Yt ,lov the oonstzVtidb of aloobol-wu you mvptiouod irritaat, vould be an irr3.tttbt, would it oot, to tbo pyriPorm sinus as it travels throupb tbere on its way to the 08opbaSit!!? "AHMMs I am not familiar vitb the litem+ ture. I bavo not purposely snt down ta the libreaV to see wbat people bave done ia laboratories about wbat aloobol doas to ael2es, what aloobol does to the muCO88, Say of the nritatb 8bd the toctgue. I doDst knOM. I suspaat that aloobol is an irritaat. Whetbar this irritant is a aarcinogeaio irritants I dob lt inov. Ug3TI0M And you doa 't kaov. vbetbe'r oiSexotte anotxs is that type of irritatst? IjWZd f.r,~m Wrat I have read that t'nm•o cum vtwo a;;,-cnt;s in ci~^:att© g.tn~.~-a wnl.or aoptaia 11

579 (230) 13Ps3 , i~- from Mr. Roas. ".M:iICrtt And on whAt date waa that operation and your ©xa-ml.nationt "AN'a"WERt 1'hat was on February 16, 195?. "qtlF.3:'Iort Let me nsk you, vas there any biopsy anade with regard to Mr. Rosa' condition prior to hi operation here at the Mayo Clinic? "ANSAM t Rere at the M-ayo Clinic I have no record of his having had a biopsy MRde before the operati "(MRgTIONt And why would that be? "Afi.ONERs ^c•aauae undoubtedly he bad had a biop taken before he cauae to the Mayo e7linict and the section of that biopsy was lont to vs by the pathoiogist who exaMinod it originally, and our pathologist bere, Dr. J. R. Mcflonald, made a diagnosis of squaatous co11 earQi- nona frov that bicpsy. "MOTIOns And who is Dr. McDonald? "AnVERs Dr. Mcbonald is a pathologist who, -at the time that that was exA-inodt was head of one of the sections of surgical pathology here in the mayo ciinie -- ( ! the 1!ethodist Hospital section of surgical patholop.y. ~ i "CITZM-11TION Do yo!ir records show vho madA the ' ~ biopsy that was ex4nined bere? There was A.n aotual. r,a}1,ology retport mftlo on that sint in Apationj but the only record of it 'On t'hir

579 (220) t1a3.6 NWYAMt I tbink to m}r amount of reading I have not enaountered anybody tibo saW that tbey bav• causod that in a labozatory aaimJl by inbaling srxoke. "QMMORs Rigbt= but you do kaov that tbey bave aaused it in laboratory aaias~ls by iabaliag polluted air? '"ATMXtE I doa 't kaov ttuat. "QAE.~"TIONs Xou donlt know that. So tinall~, and this is aW last question, is tbero anything that you tave that you have not told us about as a bavis for the opinions that you have given today?" And that wasn't ansvered. "QtWmIANt Nov you have told cfe todap that your opinion is based upon your olinioal impressiong an4 does not have the basis that you would call it a sfliQOtilio judgaeptj you have said that you have done goue todin$ on this subjeot# but that you oaa't rQf.er to any one speol.f ically in regard to the matter of aausation of aaticer of Jobn Mgst type. ,Nov what I am askiczg, just to be fair* whether or not there is any othor thing besides your olinioal impressions upon vhiab you base your mc9iml opinion in this oes$, that you haven't told us about? I take lt thTy4 is stA , but,Y Wanted to ask you. ''.^.N3WSRs tZo, I basc?d :q opinioti tr.at John

579 (193) M, i=Y: Ncnr, Your Hohor, the point of W objection is this. Aa the Court observed this morning in Mr. RossOs testimony practically none ot the hypothetical facts in the first h,ypothetieal qAstion turned out to be the faot, none, Hypothesiaed faats. At that point Your Honor adnitt@d the dootorls opittiob evidence because of the fact the doctor wasn't here and maybe it waant t I+nown at that tiae. Notr X ao pointing out that in his deposition he had testified and cox•reeted a great raJority of those faatg, yet the only one that t4r. 8leld corrected there was with regard to the drinking# and then I voluntarily-»at his request I aupplied the drinking facts that I then knew about as appeared frosa the depoaltion, 8ut none of the other facts as to which this question goes back and asks for an opinion again, none of the other facts were supplied by YIr. Field even though he was right there during the entire deposition, He ignored them. ., M, FMD: Judge, that is not true. nR, mAtmY twell, where are they then? M. F' Dj I will ansver that and I want it to go into the rcaord, The unfortunate fact that Mr, Ross was the father of a child born out of wedlock was not brought out in the depoaition, and you s.dmf.t it, don't you?

.579 (160) I Yea# let tagot back to tbat. "QCMTIAqs I asked you it Iou kno+ of or ooula oite m to any artiales that helped sou fores a basia for Vour opinion. "ANMtBRs Yss, I aao take ono aontenoe from there,O for instarioe, tbie art iole by VtyWer, that we are talking gboUt. "O.M.STI0Ns xdentify the etirtiole for the record a little bit wre tu11,I. "AW-A.R: wynder, Broms and Dd,y, 'A Study of the Fnvironmntal Parstorss in Caaaoer of the ?Arg+nx. The wet atr ilcingv diff©renae between tbo3e series ta that ttiere are rn non-=karg in the extrinoto l.arytnc eerieg. s Now In thin oxtrin®io 2arytx series hQ bas included plritorm sinus oano©r. `'QMSsION: t~ou1Q you accept the entire artiale there as being eaaurate in ntating jour geaerall beliefs in this area? ~"1~,tiams Idonlt agroa vitb ave7thing ttat tttase folks xrite. I uould be fooliab it I did. N.MITIORs No, I am auking gou about this partioulear srtiole. "A14S1MRt I don't agree vitb everytbing that be eays in bere. "O,tMIONs Now vitb roCwd to that articles

579032) F3Ps10 brought It himself. "WITA'ESs1 In the case of the patient bringing itf we do not alvays have the information as to who was the p3thologi st, and that ~ray be the case. "t'R. HARDYe We can agree that this was the biopsy made at the direction of ar. Knight at:d brought up here by the plaintiff, the slide? "NR. FIRLbs It shows the unrelin`aility of hear say because you are asking here to aetr.me that it had bee sent here by a doctor and it had not. "'1M. F;ARM lfo, I "e*.t it aas brought here by the plaintiiY'. "kIi'tt:;,St It was provided by a doator. "t4R. HARDY: Imeant that it was sent here by a doctor with the plaintiff. All righto I think thet will cover it, Dr. PArkhill. 1iA don' t need to p,et that. "q=JgS?'I4ttt rdw do you have hero, Tir. PArkhitl* your report concerning your pathological exsmination of tissue froca ?dr. John Rosst ' "AN.^m: I have a photostatio copy of my report here, yes. ".3°IO11tt `fay T see it, please? "ANSVEM Yea. "('•+ar'•M for tdentI:"tcntion lefnndan*.'s - rxhiblt 1.)"

,it~~FstB 579 (24o) larynx? "ArT.Mt In the main# it is located at the side of the larynx." MR. FI°LDs It aaya, "to the aide of the larynx." MR. RARO*l: Yes. (Reading)t "^UE9,4'IO•.7t t:oy, you nAntioned that one of the walls or the one side of the pyriform fossa was the outer wall of the larynx. itow which vftll of the pyrm form fosaa do you eall thatj the mediall anteriorg posterior? "AMVERt I would call that the nQdial wall of the pyriform foaea. "r:UBrMQNs The Modial wa.ll, and thi s depth of .4 of a eentimetor that you described as to the plaoe whore you meaffurod its was that on the medial wall whioh forms the outer wall of the larynx? "AT'S'"Mr tdell, the cancer was on the medial vall. -aad on the anterior wail, and partly on the lat'aral wall of the pyrl.form ninusq and the mensurcment is for the average depth of the cancer, uhethAr it was on the medial wall or on the anterior wall, 'Now) t':is depth of .4 of a oenti- aet.ers thR nvAraQe dt%nth tftnt you dt4parih9dt •±ii+A IOhofA how far or ahqt por^pntago of tti© wny V-:rotl;h tt:e r+ediat

IFs19 579 (241) wall that cancor extended? "A3?SWRs That vould be approximat.Rly halt vay through the rzedisl vali. "MIgi'I4Ns And on the inside of the larqm vhere the cords are and the lining, you found, I believe you stmtod, no evidence of cancer? "aNSWERs On the inside I gnv no canoer. "QU8cTI0Ns Rov you mentioned a norac+nt ago, Dr, rarkhill, that the cancer of the pyriform fossR involved the medial vall, vhioh is this outer vall of this larynx, and the anterior vall and the latoralg I believo you aaid! "AR"MUERi Yes. "qt)E3PI4Ns Would you explain vhttt the anterior vall of the 'pqri form fog m i s! "USWFRs You aant to know what it is bounded by? "mSTIONe Yes, I want to sort of locate it there. First, i s the w+ord anterior, that refins front4 "k~3ktERs Anterior weans front, rmd of course it is lined by nuoovs nenbrane t'jere and it lies between the thyroid cartilage and t1he -- I suppose it Would be the anisoles of the tisaves helping to form the walZ of ' the LArynx, to front pnrtZ

:3r'a20 579 (242) "A?MU"s Xes, that is on the front part. "Q?1RSTIMIs Vox vhatt about the lateral wall? "A~3WOt The Yateral vall !s bounded by the thyroid cartilage, mainly by the thyroid cur-tilage" -- !1R. RARDri.'s I can' t hear you, !!r. yioldo vhether you vere reading it right or not. MR. rIELrit Well, something is happening to youg then. (Reading)t "AM3R/ The lateral wall is bovndE±d by the thyroid cartilage, mainly by the thyroid cartilage, if there is any other it is smatl, and then of ooi)rse, the tissue attachA,d to the thyroid cartllAEe. "M STYONs Does the lateral wall imeen the outside vall? "ANSMt ^hqt is the outside vall. "C7E97xANi k'hen you say the cancer then vas on the roedial walt, it was on the irside xall w'tieh • forms the outor wall of the larynx? "ANSWERs Yea. "^~',MO;Ce And it was on the front wall or the anterior vall? "ANSWERt Yes, whieh forms the MAin deproneion of tre pyrt"'orm fossa and then the outside. 1"1'.JrSf"iC1fis And ;`onn the outstde vail? Lin 0 N O ~ ~ m ~ ,.

579 (239) any other aite, ",^~'.STZOt: tNov insofar as the nodes and glands vere coneernedo vere they negative for cancer? "WEVERe They were negative for eaneer. "ns.iMTiaN And Is the san-e thing true with regard to the inside of the larynx and the vocal cords and the salivary gland and the sternoeleidoMae*.oid muscle and the internal jugular vein4 "AR3WERt all of those were negative for oancer. "MESiTONs AlY of those were ntgative. hov with regard to the location of the left pyriform fosaag vh©re Is that located with reference to the larynx'P "AN.IMRt Well s the left pyriform fossaf one border of it Is really formed by the wa11 of the larynx and the other border of it Is formed roughly by the limits of the thyroid cartilage. It ia on the outer wall of the ?Rrynx$ as it xere. "QUE",57T4Rs It Is on the outer vall of the larynx; does the outer vall of the larynx form sort of a parting vall between the pyriform fossa and the larynx? "~!y first question vas -• the location of the pyriform fo!ssn with respect to the tnrynx$ end in t'+at rcqp"at T.vn.nte-%d to ss'v you vhAther it ti+as to the tide f of ur above or vipre ilt was 1ocoted -rith r^,npoot to *lte

579 (a45) B?82.3 "m.STI!)Tis Atl right. Nov xhen was this photograph rsade? "A*tSW•'.;Rs This photograph was made auly ?s, 19600 " t!'-.TES TIOW: And were you preaent ,~hen that photograph vas asade? "ANa^i:RRt I vas present when the picture was taken. "~T~'AS:'I6Tit And let Me aakt if thist the sub• 3ect of this photoeraph# th4 larpnx and attached tiesue of Mr. Ross, is that preserved here at the ^linic? "AfiSWERe Yess that tissua is preserved; here at the C2iniC." MR. RAhOYs If I r.,ap suggest# Your q.onor ~- in just a moment in the deposition she is going to describe her markings on there ~- that the Sury night defer passing it e.round tiil they understand the markinda TRg C Ot2'R'C !. V ery vell . 'pR. ~iARD~Yt (Readit~s3 ! "OUSS?'Mt And that iras his tissue that Mas photographed? "ATS`WERs ''his is the preserved tissue that vas photographed. " t,1'TS ^TON'= ~nd i S t%Zt vmial proceAUrelp to preserve tissue P:•on opera*.ions here?

579 (243) "AYUERt Yea. "1% MERTIOYt Noti is the pyriforA fossa located in tr:e throat or pharynx? "AMWERs Yes. "M3TIOitt And is there any particular portion of the throat,any portion of the pharynx that gou deaarib as being the location of the pyriform fossst "A!"S1~3Rt Yes, it !s referred to as the hypo- pa'.ary?'lxg ti:o }rar t ttiov ts'iio is sit'uateti an. "QUBS'174Nt The part that this cancer was sit- uated ing the hypopharynx? "A.KVF!tt Yes. And the pyriform fosea is usually considered to be a part of the hypopharynx. "tTU73S7201111.4 r1ow by hypopharynxt does that indicate the lower part of the throat or the upper? "RT,StNERt Tha.t means the lower pert of the throat, yos$ the loHer part of the pharynx," ',M . !!A!tDrYt Do you want to h<ave this mrkeQ as a plaint.iffI s exhibit? , r03. FIRLDt Isn' t that the one you offerc+d the . i i I I other day? v;R. IAAt)Yt iio, Defendant' a .t:uhibit ?. ',(t. FULDt Let' s see thRt onet th9t. Is this the one froM the original one? n. 1t"P'yY: "khis is her 'X'itbit ?, the depesiti

579 (211) t].a7 "U~TI4R: Atxd you would n't want to oompare the skin to the pyrifor,n fosaa and you would not want to compare the pyriforas foasa tothe inside of the le,rytrt, uould youT "ARsW8Rs 16%y? There is one part of it ingide of the La.rynx that is entirely different than the outgide, cu33 that is aaled the true vooal oord. It has tissue in it that is somewhat eatirely different than the reat of the larytsx. "qMWIOR s Hov the trachP,a tas the sao kitkd of cells as the other interior of the lar8nx, does it not? "MaM: The tra,obea has what ve aall fciliatods mooea, little tiny bQaters on it, and it also has certain amounts of glands in it. It is soma- ; uhat aimilar to the ionide of tfio laryax, except for the true vocal corde. "QiW2IQNs And the traahea is in tb$ direot maino line of inhaled amDtie and air, is it not? > "ASMERs Air does stxeigbt tbrougb. it. "QUESTIUNs And owoar of the traobes ie extremely rare, 3.s it not? "AIMMs Yes. I auapeot it is beorwee the utrcl.rn 6-oes st:ai.ght throu,r.h tt, atA it, doesn't eddy or stop or vhirl, it Foes str®.f.ght through it,

579 (221 I Ross' cancer was oausod by araoking on cV olinioal impressions baokecl up by vbat I have reW ia tbo library, "QUMION: Nov then I beve to ask one wore Quest ion: Xou bave not yet told us anything you ever read in any iibrery that supports that with reSW to the pyriforcv fossa. "AtSM: We bave been talking about ttse artiales, we bave been quoting the artioles over tbo le.st two bours or tbree boura, and a year and a half Q~;o some core riours. We apeut Eocs time arguing about vbether some of these people were tellciag about pyriform ginus, 3.w7mr, t,ypopharyax, dnd in some of ttoee art iales I am scn+e-and I knnv--tbat pyriform oS.nus was inaluded, but not under the spQCif io nam of pyriforsn siaus. WSTION: Ie it correct to say tben that you can not rofer rue to any artiale by any euthor who says that pyriform sihus oancer is aaumd by dmottl.qg oi~rettes4 "ANSWM I cannot refer to any artiole that atate$ specifiaally that pyriform sinus eanoer alone or pyriform sinus is caused by sgakiog oigarettewt." ."NIiR. - iiAR7C: That i• all." • KV'1! 4~./.1'a.i! s T, viJ.Jl retRd tl.iV r<.711 J+r"iCit

579 (199) pyritorm lossa, pyritorm sinus o.r eny of these terase j hyDopharynx, that defendant's counsel has been using with you this Oternoon-•regardleescf what descriptive term you use or others might use to upply to the plg4a where you found John Rosa' oar,aer to be, wi],i you tell the court and Sury whether or not the eit• of John Ross' oanaer is a place that Nould be expeoted* on the basis of your knowledge and aomraon sertae, to be fillod with ©r-oYe in the process of one's inhaling or exhaling tobacco sn,oket "AMt:IRRs Yes. "QU"'...STIOrN s And will you state whether or not the oonfiguration or the lorm of thia aavity, at least thin area is a cavity isn't it--! Ygn't that trus, Doctor? "ANSWM : Yea, IIQT3Z3TIONt That the cavity is such that a.ochanioally s,peaking it snoke laden air is drawn into the aunas through the zouth, and exhaled trom the lungs out through the mouth, is this location and configuration of the cavity such that it ia to be expected that this t obacoo laden smoko would eddy and swirl in the area as it tills-• "~.ould you state tahother or not that is true?' "ANS~•'F.R i I think it does, V ~

0 579 f AT), cord. "~,M3TIOx= And vhen that is inyide a pgrsont it is olossd at the two r:argins whEre the cartilage appears? "AM$Rs Xes. "CUESTIOR= Nov would you tR?ce my pen and r!ark 'T. CO.' at the approxibate location of the true cords? "A?:SW$Rs Yes. "^t1E3TIQXs row for identificationg that is right about from the *aiddlo of each two cords? "AS.SWERs Approxxmately. "O;RSTxOVs You started the line frtm nbo+st the middle of each true cord and tjave drawn it out to the aid so the end of the line is the place where the true cord is? "ARSVERs Yes. "(~MAS:'Ibt;t 411 right. Vlow those true cords, state whether or not trey are in the inside of the ta "Ati."SfERs They are inside the larynx$ yesi "~M3 ~`1074 And is this the area throuO w:dch we breathe, through the larynxq throtigh the inside of the larynx? "Al"S{dERt 1'he air that we broathe passes thro-1;h trn interxor-yof t%e 1ar;rnxk yAe. ~.'t)V :4OUiCi ,`rt1U 0 I

579 (223) !~t. ?Z7.GDt Y offer the deposition of trr. Edith M. Parkhill takc~:z on the 9th of ^eptenber 19649 taken at the r'ayo t'linic in Rocheater, uinnesotal by the defendant. M. *,TAR's I would tike to road ny oorr examination. MR. FI3LDs ?'o, I want to otfer this, Y4rir MR. FEARIDYt Yo»r Ttonors in this cases the deposition vat ;a'te.*t by the defendant and Mr. Qield cross-exanined the witness. }tA. ~'IRLDi 'i'hat doesn't nmko any difforence. &tR. NMYt And in keeping with the praotlce that has already been startedg x think ve s~iould each read our own exanina*.ion. MR. ?IEZLnt Judget I aa oftaring -- 'M. ?iARMs ne has offered the deponxtion. Now I would like to read my own examina*.ion. m. r Inb:)r Zudee, Iav going to otfer the whole deposition in evidence end$ of courses I offer It under the rule that oncQ a deposition has been ta.katt by either party and filed that it is evaitable to AttrAr pArty, so the nleinti ff nctiw offprR tm. Pnrkhill' s dApo- . Winn and : ~arnit -!,!o c~ad it. *R,, ~LRt..7~:~~ :'T)t'7 1i1 ~il~

579 (2b4). j3Fs22 shows marked for identiftcation D©fondauzt' s s`achibit 2. MRt. FIRLnt Oh# yeal ye8 t indeed. *iR. 1iARnt s Oo you want it rnar'ced as a plsin- tiff's exhibit? 'yiR. FIF.LDt Might as vali, beeause rhe first one vns Marked as a plaintiff's exhibit. M. HARUXe Right. (PLAZRtTIFF' S SV:IRIt 50 WAS MAM A p`AR IDZPNTIP'I^ATI", ) M. ~iARt~t (Reading) t "Q'.TESI'IM Doctor rarkhili t Iharid you v'hat has been rarked DatEr.n:dsunt' s F`xhibit 2" - whioh bAS nov been raarked Plain*.iff' sfthibi t 50 -- "vhich i s a photo- sraph, and I vill ask you vhet"her or not you can ident.i that photogrAph for us? "A?ITORs Yes, this ia a photograph of the la and the attaehod tissues that were rtsmaved from Mr. John Ross, "Mf.STIONt And does that constitute the laryn~ and- tne attached tissues removed from v-'r. John Ro$a as you have described on F©brvary 169 1952? "ANSAMRt Yes. "MRSTI0Ns Mow that does not include the nodes Rnd glands and other things that were removedg ini.y t*%,, LarynY nr,d a~4-.st ;hed tissues? "ArMIC?R= That in right.

9 I 579-(165) vo:aeh= do you agree that it ia true that 'some oonstit• utional or syQtenlo faotore aeem to be oonoernod vitbin the intitial causation of ttiese tumara W in the Wsy in wbicb rocurrepoo takes plaae# ~ aa to MeA as wall as- uomen, siaao tbere !.e txi liaitation eitber b7 you or Ladermt "AZ'tSWER: Wo. I don't eexee vitb tbat. "QtTMI0N: Do you recall aay pleoe in review• ing tbim xbere you drev that distination between mQn end wown7 I dou't f ind it sny p1aae. "Att'M-MRt WcL1., I knov that certain r.atioaeliti -for instanoe the 3capdamviRa women,- bave a bi,gb r&te of cawer of ttm r,autb, of the esaal.l.oviqg pipes sW ia that Pnexa3i area* we can W-b2,arv-•" of th* esopbasus, entrancs of ttu* esopbogus. They also bave a bigb rate of aencor of tbe"--b].e.uk--P"or behind tbats and they also have a high rate of aancer of the pyrtform sirnam. We dootoxsspeoulr.te as to the osuse of ttat# we uor4er. The Boandazavians are supposed to drin'ac -a lot of riot coffea, aod somaone wonders it the bot coffee vas the aause of tbe8e voaen tsaving their eanaers. Auotber oaa tbou&bt perhaps tbey didn't eat the rigbt diet. Some otbere thoupbt it was mimply s sexual differenas. I don't. knov about the problem in that rogaM. I si%94 know thAt for.ales don't aeem to fo7,lov this trend I am a

OFs4 " Aiy :TJ}"sRi* 579 (226) Yea. I have bean on the staff since 1936! Z r.ave been rere since 1931. U "MMTI4fls You wero here before that? "A?i3S~8Rs Yts. "CL*E3TIM1t And vhht is your present possition at the Mayo Clinia? "A;iSkiERs ?4y position at the ?'Ayo ^linio is consultant in the department of surgical pathology." MR. RARN: Can everyone on the 3ury hear Dr. Parkhill? I thought your voice in falling a little* Or. Pield. M. FIELDs Wall f if that bothers you s Mr. Rardyt I u'ill apewc up. I don't want to shoutv but I vill spoak up. .~:R. HARM Y+`ine. "4t1EgTI4Nt You were here before thut?" FIELDa kre you going to talc* me back over that again? ' "AMERt Yes. "QtTsStXON's And tithat is your present position at the Mhyo Clinic? "At1V1:Re My position at the uayo Ciinio i• ccr~a~titt*n: in the delsartnent of surgical pat';olop,yg" as I t.old you.

579 (252) ~. ~ { closed in this photograph? "AMStJIRs *to other material dif!'erence." MR. I;.ART1Ys I aak that 3chibit 4 be passed to the Jury -- not 4-• what !s the number? Kj l')efendm nt's r-hibit !C has nov been passed to the Jury. TAE C4'c1RRTs Defendant's rchirit IC is the aane as Vxhibit 4 in the deposition? MR. FiA1tDYi Yest Your Honor. (Readins): "^OESrI4t1t Nosr if you would on this photography Exhibit 4" -- which is now RWhibit F-- "outline vith my pen u'here you found the cancer in the left pyriforn sinus? "At).. .,, s'i'hia is an a.pproxiviqtion# of courseq because, after all= all I have is this black and white print to identify the cancer here. "DLR:S 7IO?T: We just unnt to get the general location. "AY3WERs This ist roughly spelikingt the out- line of the cancer. "Ntt. FmDi 'olitd you go over it once agnini please? "1+I1':iE3as Yeal perhaps I can *neke a heavier line.". Mla,ns (RoadlnR) t

579 (217) and smakitig--is tbero any ieason vby that is important in otber aasej but not in Mr. Ross', so that his baipg an aloottolio or a beavy drinker would bave no influence on your opinion? . "AMWEts Tbeaque$tioa could be stated a little b©tter# I suspoat. I dontt quite knov nbat I am to answer bora. 'QMTIORs A1.t ri.&t. My question is-•if vboa 7ou bave elrQady given your opinion that you bave no gcientifio basia for oouviating either tobaaao or alcohol, but in all of your oases you f ind both are pre©eptp is there any reason vtryj, otber tban the laweult involving Mr. Rossp you consider it ls unimportant in bia case but important in all of the other cases? "k2MTR : Yes. "Qt1MIOn: wnat is that reason? "UMPEtt The reasoA is that if be bas b"e a boavy driuker as you bave so statpd, und he tells we tbati an4 Y txave on tbe record that be tsas also been a heavy smokero aaQ if from m7 reading in tt* library and atudyicg various tbims--tbo artioles that ao-osllc:d soieatists have vritteo, I discover that ",erat"r cona, that I have been so toltf, tbat caroimNen~ s-.t+e prr,rnot in tobaaoo amo:m, " I bav•

aFe31 . "t~URSVI0Ns Nov ve have had so many records around here, Dootorg and photographsq that I vould like to look at the record that you have here: Thers raay be something that I vould like. "AT:S'WRRv Well, I tisve here the history and the surgical card and hogpital records of Yr. Rosa. "QJRSTIons Uoctors you had some other records or notes or me:.~oranda. "ANs'"'RR: 'That is All. You mean the little slips that I had here? "M. S'rIONt Yes. "AATSWEFtt V.oge are just notes of mv ovn. "rLIv.STIOa: Your oxn offioe record? "Al".=Rt ro, not ov©n recorda on the case. They are just abstracts of some reports in the litera- ture. "0 ,U3T70fie t!ay I see thoae. I probably dop' E want to -- I don't vant wWyhing in this. "Ar'fURRs Tr:eae are certeinip not part of the history. Ihavo got some other things along here too that have nothing to do with this aase. " r'!~'S''ION;,o Tk)ctors in thi s photngraph 'hare 579 (253) "CR!)3 ; FXAMIMA TION "BY M FIELDs that uas also in yoi!r tilo qnd is nar'~PA up at the tont

579 (213) of getting aancer, the wutb, the toneue, oral cavity# larytnc-nov then if he is not only a heavy amDker but a heavy drinker..in eddition, then he ia a Asc of getticzg a<iancer in any one of tbese ctbar sites up even bigher. "QtTESTIONs Your Peelitzg is that the drinking of wbiskay that never touoba$ the inaide of the larynx is oonnecte?i with cancer of the ineide of the 1Arptac9 "A2MSR: I am sure that whiskey has got to"w- MA. FZMI "iiot sure ubat wbiskey"- M. KAMY1 tRftdings y "AMM I am not sure vbat dbiskey bss got to do with it, but did you ever see a haevy drinker that didn 't ea»kQ along with it? WSTIONs Ye®. "Ati3Ms You did? Pretty uaoo=on, aret3$t tbeyt "`,1MM0X: We11, it just depends on vbetber ~ tbeta,~noke or not. If tbey aanke tbey smoke core wbeo tbey drink. "ANSwE,.Rs Tbatls ri&t. "U,c:STIONt I3ut we bave known of drunkerQa that dLdnlt saoke. "ANSWEts - No, I donft think any of the wbiakey &ote in the trecbat, or ltrya,<, but I suspeat that the

579 t21oj and uhat yocz have read c.r,d ac;cn ZoWn thMagb the years? "Ai3~Rs Yes." M. UA=s This is reo?~oes-examination by a*. (Resdings ) "QtWI4Nt Hr. Field was asking you about the nature of the tissue, the pyriform fossa tiesue aad of the larynx, and I want to ask you if it isatt true that it also fs the saae type tissue ttu6t you have on your skin on the outer part of your body? "AMERs Skin, you know has bair aW gWQat ia .it. 'QttMTl01it It has epitbelia celle, does it c3o "AIMfBRi Tbat 3s rl&t. "Q=WZ4Itt $ust the sam as the area wa are talking about? " . C:7= Y9s. 'QtESTIUNt So that so far as the struotwre is conoerned of the calls, tboy ar0 approximately tbe samw "ANSUMR!. 3ki.a im aa organ unto itself aontaining all of the struotures that I mentioted, sweat Slands and hair follioles, euboutaneous glanQs and I don't want to ooapare this lining vitb the lining wbiob we call skiti. Aut thrry do have epitbelial cellst, "AN3ta~~itt Yea* s t4 V 0 N 0 ~ ~ v m N

,1s36 579 (258) referring to the outside portion of thg wAll or vhether you aro referring to the lining on t!:e inside of the lAr of that uall. I would like to ask you to clear that up because she hae already testified that there was no oAnoe on the inside of the laryruc." MIi. FIELDi (Reading) t % "`,M. PI.ELae Yc» undarstood my criestiont I ah sure, didn' t you p Doctor? "WI r"ISt Yos, but would you read it back?" T-M. RARM (Reading)s "MR. RAttDY= I object to the use of the word 'lining', because lining is only on the insi.de." *M. FIELA (reading) ! „(c_xesaion read by the reporter) "I QUn9TIO'h`s "-o%r vhether or not that ce.ncer* when it originally started, started in that portion of tho pyriPorm fossa that was the lining of the outside wall of t?he larynxt or the other tissues that eomprised the..entire fossa, you do not know, do you?' • "ANSWgRt Let' s seel you could say it is thA covering of the wall of the outeids. `to, I can not say where this cancer stftrted. I dtd not Ree it vhpn it started. .•oa thg ~trh!t .*.v`n } .t'~'` ^Ane9r xou~ x pied of the pyrifor-11 foR!:a when ;rOu aFw itl and ae you

_ 579 (254) Ackbrrian, (Dr. Woolner)' under date of 4-12-64 what i s. the significRnce of the trrinklinR in t111e tissue in this area right here? "Ah'SWgRs 'Re is referring to the supraglottio area Just above the left false eord, and as fnr as I aar tell from the photograph it would jus*t represent puakAr- ing, secondary to the strain that is put on that muoous meobrane by pulling thee speoinen out or open so they wmuldnt t cut into the speaimen to pull it apart. "P"JMTI^Ms I gather also fron looking at xhat has been markod as Defendant' sT~chibit 4t which is the photograph of the larynx where you have dratm onto !t the area where ;{ou say the cancer em-braced, !s that correct? "ArISMt Yes.. "^ULS fI0nt I gather fron looking at that photograph that this was Vhat you woutd describe as a larg® or big canoers vouldn't you? " AY..5kts9 t I don' t knox tret I can answer that qriestionj, because after all a large cancer, that !.s a relative thing. Perhaps we could say relatively large fo this location. "?'JS3TI0?Rs Or would you prefer to leave a nore definitive answer to that to tre surgeon that took the canoar out? r "AIM3W.1=tt Ve1L, nfter att, we iaa annoere.

579 (222) eX6minat ion. (Roadingi ) "QCSSrII0nt Dootor, one last thing Mr. H&dy left out, I believe. It Is aorreot, is it t,ot, whea .you said you formed your opinion in this aase epeaifi- oal].y on Jobn 12oas t cancer that the oaxioer 'vas caused by armking, and wtiea you reacbed your opinion told for some tic* rov that generally speaking that smoking k . does cause aartcer in the larynx and the edjaaent arftss inaluding the pyriform foesa, didn't you also reoit$ earlier, Doctor, that part of tbe basis upon wbicb you have rFrf errad that opinion down tbrou,,_-Pb the years is by talking to otters, your fellow clinicians here MA your follow doctors and your staff conferences at the myo Clibio and so fortbt "AIMMs Yes, NLi=IONt Ispt t that true4 Ww, Your Horror, if you want to teke a break at this point or if you would prefer that we startwitb Dr. Parkhill; s deposition? TUB CATTzZTs If it is agreeable xitb both sidos, it mirht be bettor to proceod with Pr. Parkhtllls de~osition, s»d we will ta'de tbis urst!:er up at the moA Wi:r "~tl +hc - Jury. -W4l t..' = o 1.t3r. 1113. f tcv'l tiloe. .: ITATY-vi a": et l.a =t,nve._-b:o witt, .~. , YoLu) Hocrar,

5T9 (236) mr's14 :4R. NARDY't (Reading) s "nUSSTI0?is And that rears your signature, does !t not? "AN5'Ms It bears a reproduction of sty sig- nature." 1dR. RARM Then I offered it in orvidenoe. (Reading)= " QUgS TI ON t17ov t et MM a AV yov, *)r- rar`,'.hitt i vhat tissue was given to you for your exazinAtion and report? "ANMARt The tissue that wag given to M0 was the larynx and attached adlacent tis:aues of the pharynx, all of the lymph nodos of the left s ide of the n4ck and the left submaxillary gland, which •.ras ineluded and a portion of the sternooleidomastoid rusdtg on the left, and a portion of the internal jugular vein. "QtR;3TI0rts So that imder the first item here, 'Organ or Tissne', did you describe all of the organ or ti-ssue that was supplied to you? ' "ANB'afRRt On my report did It "c±tTxsrxoPtt Yes? "AttSI.Ms 5enoribe all the -.? "ot1ESrI4':i No, I Mean, did you ment.ion evary- t'1ing t}iat Jo» exa-minod there? • "AY."WERt Yes, I inctudQd Rverything 1,hat I N O N O ~ ao 0 aa

BFa23 579 (235) MR. FtaROYe (Reading) s "t;UESTZONi You did not make any pathological examination of anything before the operation? "ARSWRRs On Mr. Ross' case? "QUgSTI4r1s Yes. "AZ+SIMRs Nof I did not. "!?t'BSrro?~: So that the tissue that you exav-q- ined was made after the operation in toto? "A1rSWFRt Yes. I received the tissue from the operating room. "AMSTIOT.'t And state whethor or not you Rxam- inFd ail of the tissue that vas r".oved in the operation? "A?FTYMRs I oxamined all of the tissue that vas ronoved at the oporation. "9tEzTIOtit I will now hand you what has been marked as Detendant's fthibit 1 on your depositioh# and I will ask you if this is an accurate photostatic copy of your pathological report shoaring your eacamination of all:ot the tissue removed In tre operAtion on "r. Ross on February 16g 1952? ; t "ANWERt Yea$ this is a photostatic copy of ; my report." 'tR. FOOYs Let the record show that that 1.s i ~ . t'ie sa:-.e as '.:xhibit 49 which has bepn pnssei to *,he jury. N 'ftE Cott'trt Yes. m -j aD 0 v

579 (256) 13ys34 is enclosed by tissue, yes. "MR. HARM (interrupting) = Excuse ne, did you say enclosed by tissue? "k'IT.:SSt It is enclosed by tissuet res. Let me see -- the valls of vhich are composed of tissue. I ean' t say enalosed boeause t~ is particular fosaa is not completely enclosed. "^USISMO11fe And t!he pyriform fossa or sinus in- volved here, is a pit or deprossioh that is not como)otel enelosed: isn't that correct? "AFSWERs It is not ao-mletely enclosed, yes, that is correct. "OURSM;ls And one of the sides of that open pit or depression is one of th.e outside vells of th* larynxs is it not? "VYVRIts I think ve colild say that. "~U~'.S'"YO31s And this cAncer$ by Vhe time you sAw it, involved the entire pit or depression, virtuallyl on . the left «- the left fosss? "An ;'40Rs Oh, it involved the greater part of it. I vouldn' t say the entirel because I eouldn' t possibly say that rri*.hout .- ~ 0 N 0 m "Gt1S9:'Ions IMt the greater partt and whether N or no*, tbmt,aanaar:~trsf •ntjnrtQcl -- W'Set*+er !t etart,A irr ; ~ t,!;e aalts of ttie I nrywc or other tissua "-~an thP va11. of !

579 (251) (PLUKTIFF' 5 3XitI9TT 5'1 WAS R:?~.i:2VRD ?Tt t;Yldg?7C3. ) Mt. HARDYs (Reading)f "0t113S'IDRt Wov do you have any photograph in your file of '~r. Ross' larynx vhere it aas taken with the larynx closed4 " AITSEfBR t Y®s t I have a photograph shovina the larynx closed. " (MF.4 FZONt r-ox I vill hand you a photogrdph which has been marked Defendant' srxhibit 4" -- and which vas put In evidence yesterday as Defendant's Exhibit !C -- "and which gives the same number as John nosa' nurzber, and up at the top it has the name ' Dr. L. V. Ackeranan' and ' Dr. Woolner' t and I rril], ask you if you can identify that as a photograph of Mr. Roas' larynx vith the larynx closed? "An-WERt I can identify #t as having the exact appearance as Mr. Roae' larynx. "WOESTIONt And can you identity it by the number that appears on it'P . "A?'StdER: I can identify it by the nvrmber as be- laiging to 1!r. Rogs and the nar..e that appears on it. "?'JC.'~TI4Nt And the only r.+aterial difference is that thm larynx io aloaed2 "k11 r3ght*,,is Fht±re :~ny- n1~arial dit`terenew ir ~ the p?+otoprnphsae rrou o~a^Y rp it ot'-er thai, tre lnr-,mc ~•'

579 (2A8) the are* vhioh you foun4 to be aarcexous in the pyriform toaae? "MI;:~t:;Rt Yes. I have ncrv approximatetq cmt- linod the area I foyand to be c!maorous. 0C.10-S':I4N You have outlined 3t with a pan? "A`I3~ii Tjy thi s pen r_+arkg itnd I vi11 put the OCt up hero. "WfiS'eIOn: co the portion that Mi have ant• lined on the photoSraph is the aroa vou found to be canoerous? "hNIMUS: 3l:at represants the surtaoe of tl+e oanaerous aroa. "QIt~'~3:7~?'t ':`he s+artaaa, tnit the place vhore you put the 'CI vas not mnaeraus? "hI'S4~:Zt wAS not oAm:Q2"otis. "0on: ':'IOwt You just indicntod that so you could vrite it wore clearly? "A~,Am s I 3ust put i t thRre so you onn eoe '.S1IOYt r-4 oll of the ir,dicatl.ons Rr* a'h9re' the lines are? "AM-IMRt Xes. "ov v+ould yon indieate %ri .*.h th9 pt,n the epiglottis? '' A!'M,"IrP--ShRll Z jitrt nRek rr on t!hn opt- gtottisp

579 (225) i '3Fs3 . I "AN--:"~RRt In the m M-icat profession. "^m-rTort Would you tell us, Dr. t•Wichiit, you ar e an M. D. ? "/l'MERi Yest I am an ?t. D. "CUEgTIOat Would you toll us, Dr. garkhitt, vha xas your education? Where you vent to sohool. "Rr?SWRRe The Lhniversity of Wisconsin, x got my B. A, and "y N. A* from the University of Wisconsin, and also have an VI. S, fron the University of Minnesota :'ollowing My petlowship here at the Vayo C1ini.o. "Q7nS'TIOrt Pov long have you been with the Mayo Clinic? "AN=Zt I csvia to the Mayo Clinio on a Fellowship in 1931, and I have been on the staff of the Mayo Ciinia -• you have got it there, I think it ia 1936 that I vent on the staff. "Q;TESFIOt:t You have boen on the etaff at the ttayo Clinic since 1936? " AN-WERt Yee t since 1936• • "CtEaTI0Nt and are you licensed to practice mc+c'licine in the State of Mnnesota? "ANWf:Ro Yes, I an licensed to prnetioe ried- icine and surgery in the State of MinreeotR. yr!•l 1avo hopn yith the Vnyo . C1S nic continr,••~ :1:~ s ince 1936?

Ws39 , I 579 (2b0) "al:VETtt You er© asking rae for An opinion now? "CUSM,0?+t Aonodical, opinion from. your knowlRd of the anatomy of the organs. "ANSiERt Yesq I vould yay as air is drawn into the larynx, air is going to corne In contact with the pyriform fossa, yes. "I1BS:'ION Ao whatevear is In t'hat eirg whether it be snoke particles or ary other particles of mattorf thoy arill find chemselvos also invading and infiltrating the pyriforo fossa area without the neaessi*.y of the body porfor!*.ing the act of swallowingg is that correct? "AS'S.4~'Rt Yes, that vould have to be true$ I vould think. "OMSTIOr= And 3ss it not also true that the air which passes evontually dovn into the lungsg as that air infiltrates, It also infiltrates the pyriform fossa area involved here, that it is not moving at the sa-ie speed or rapidity aa it would be movine and it In irihaled and brought down directly through the course of the lar- ynx4 "AM"!Me T hrevo *tado no stuAy or obeArvations on that. I wolald certatnly assume It would not be Moving at }.he -%ane ra*A of. speed. ycur ottrton and knowtadpO of s

579 (261) B7s39 I madicine and nnatomy? " AR':R i Yes. "~M3TX0?1't And also it is a faot$ is it notg Dootor, from your knowlF+dge of medicine and physics ard your Qommon ordinary observations of the phenomena of nature, that gases -- combinntions of gases such as airs and that indeed liquids -• for exaMple rivers and the like, when they slow ltown and their velocity divAnishesg both gases and liquids tend to precipitate and drop out the foreign substances or particles within tren that theretofore had been carried in suspension of the fluid i i or the gases by their vQlocity# is that not true? "A!taVERi Yo,a are just asking V.a ny opxnions now, because X am not expert on that. Yes, I would say that generally that is true. "~UMTi!V: fiat yout of oourse, have a t*now'Ledg of physics, I asavne, vith your degrees inoluding a ,'•faster's Degree, and you evc3n, of oourse$ have a totowl- edge of the common facts of natural phenor,mna of everyday life, such as a river carrying silt in suapension, vhere it slows down and its velocity ditninishee that silt pre- cipit.ates or drops out to the bottom of the river, doRsn't it? "I11T.>WIRt Yes. ""'MS'"zI'Zt Ar.d tl,e taie PrTnoin1e ahplies to

579 (166) .. 1 u talking to you about of emakiog and cancers of the isxpax. "Q=TIOBt: Nov aotuall.y my question is, io tbere aW plaoe vbore you in your vriting or your recolleotioa limited this observatiao about oonstitu- tional or systemic faotore to aocyeA? "AIMSRt In a little different sub jeot eoms time ago a msa io Xneland vrote about the daa,gers of writing about survival rates of cancer in gengra].i apd ia oaacer particul.arly of the and oeok, vbicb inoiudes the ear, tongue and mutb. He says that ve ebould clearly state ia our papers bov many tiromeq and bow many we, because Vomen seem to have perhaps aoc* hormaaal or goma constitutional difference that makes tbem gurvivo or makes tbeir cancer less letbal so that more doaaa saem to e<uw 3ve cancer of the tftd end aeok than man do, That ie one paper that I oan think of oftha,tk9, that there mq be soms sexual difference. VWTIQN: Fiow ia that came artiole iQ !'be Juiy, 1958, A. lK. A. Arabives of Oto].aryugologyo you eade this statmati fUplike canoer of the laryax wbere f ailures af ter rad i.otberapy can f x+equently be tsalvaSed by operation 1p the 1at*Jl'goa phw7nx, aucb opportuaitie Y7T'fl8°b`v tb..9'a:~;~1Vd4 Ot1~-j/ 1'dI'e1j/.1 "aMw TM~.P.s ''hat uas not '~r c,uote.

579 (246) "AN3W::Rs Yes. "QUBSTIONs T•'ov vere you present when the photo- graph vas madet "A}taM = I vas present vhen the photograph vas taken. "QtJ?.'3TIORs And is that a fair portrayal of Yr. Ross' lar-nx and attaa?hed tissue? "Ai:SN11;R= Yes, that is a true picture of his larynx and attached tissue. "QttES'"I4n!. As far as this photogrPph is aon- I earnedg and the larynx, vhat viAv does that exhibitq Defondnnt' snchibit 2" -- now t laintiff' sPhibit SO -- "give of Mr. Ross• larynx? "AD'Rh":Rs This r"resents a view of the larynx taken from behind with the larynx opened from beh.tnd and spread partly open. "QiJIMIOI?: The larynx cartilage in the back ha been opened and the larynx spread open? "A?t3"R1 Yes. "QM-317Oxr And so that in the center of thi s photograph vhRt do you see? " A'tMR: hpproxirza tely in the c enter o t the photograph ve see the interior of the larynx s~hoving the tr+ao iand :'0se corrle, and the mcovs mr.+rbrane lininR the sutgtottia rpgic>n nnd nl.so the epiRtottis above the 8

579 (266) to some extPnt surrounds the larynxg yea. " r'It:STI4!: t And phar;lnx is a tern that also has a use to describe the throat, doesn' t it? "AINSMs Yes. "Q=S 1424M: !tnd the l arynx i s al so an organ that lies within the tt~roatj does it not? "ANsMs Yes. "ME:3TIONt And technically in tha! part of the area that you have described as the hypophqrynx. "A*.~"~".. t t'ov rrhat was t'ie question? "QJ2s S"'I^IN What is the relationship of the hypopharynx to the word larynx? "A223,MRs well # as far as the actual nnato^aical I location, the hypoptuarynx, at least in part$ surrounds the larynxg espeeially the posterior surface of the larynx. "M1mrI0ir= And the r4port which the defendant had marked as Def endan t' srbtibi t 1, that i s your oun report and is not properly in the customary practic* of the !!ayo Cliniog that !s not considered aa part of tho hospital records? "A,`,4+lEns What do you rsoRn by hospi tal records? 'I02sr I am aslcing this) Doctort Vh1on the do~inst klnn -•. Iwill T z'ri i!. alatr to you so you witt ~~nder::~~.nrt and "he ^.a~art -All underitrtnd ••• vhan

579 (249) "QMSxIO?ii In this instance you are fiarking ~ the 191 right on it? "AhWE"Re Nark1ng the ' g' right on the epi- glottie. "QOE33'Iflli: And is it in thnt area or some place else that the laryngeal inlet is? "Axs'n'ERs t~,at !;arrs one of the margirs of the laryngeal inlet. "0 ,etI?RTIONs And the other border$ would it be opposite? "Alrnnizis weil, t~:e area of the epiRlottie fold vovid be the wroargins of t?~e inlet to t'1e lltrqnx. "~~r.~TIOI~~ 7rom that p`hotc+Eraph een you indi- eete the area ahore the epiglottie folds ara? "AtdSWFRs Pretty mvch. This is the area of the aryapiglottic folds, on this sidA, and of eouree, this would be on the border of it on the right side over here. You want me to mark that in with a pen? "Q t1R4TI02i= If you Wovld. Let's see now~• where the cancer was you have put a circle around the letter 'C'? ".+1NRWgRt Yee. "QU3ItIPt't -now can yov 'help to distincuish Lhe c?viglottic fo'tdL "'X"_`{•,~ts T cnn put a tine 'hArA end ?mt ' A' in

579 (250) the oiddle of it. "qUgSTIQh't That is goods put a line and "sark the epiglottic folds and the 'A in the middle of it on each aide. "Ar,MRt All ritht. "C[1mrIQRt Pov for the record you have marked on each side the approximate location of the epiglottio fold by a line with an ' A' in the rsiddle? "JlNSWER: 'Fes." tM. nRRfnts I am, going to hand you the next exhibit. Do you wart it marked 3-s aintiff's fthibit? MR. FIELDt Yes. (j'LAYHTI~'F' 3 h7Cfi1AI T51 WAS ukRPCF.D FOR InNN"I?ICATx4lt. ? M. HARDYt (Reading)t "M, S?Inat 1'ov, Doctor r^arkhill q so that ve have a photograph that doesn't have narka over itq I wili hand you Defendant's 1~thtbit 3 and ask you if that is the same photograph as 33afendant's rxhibit 2t made at tho nami times.except that you don't have any rarks on it? • "Ali3'./ERt Yes t thi e i s the sanA photograph of the spocimen." '1M. NARDYt '!%at ia being offered in evidenae at thi s time? • Lt!t. ;?'IuLaf :,aCes. , V t? C^:t12Ti It vi11 be AdMi1 -.ted,

,CUs51 579(273 Exhibit 49 this oblong rectnngular ahoped area of cora- I p1etE blaaIsrLoss, ahoun vi :hin the lines that you have draam around it and mar'ked there of the eRneerg that is a disseotion that was done where the tissue was taken a+it last April so that it could be exAminedg isn't its in your opinion? "A.q'wB'It It ia an area from which a pieo• of , tissue was rei-oved last April, yes. Technically it isn't a dissection, it is just a part out out. KPjJESTIONt Rut that blaok area dhovs that this tissue was actually cut into last Arrl1 for microscopio examination? "A1`IMPSIRt Well, I oan' t look at it and say it was cut iast April. I can took at that and say it obviously was cut in after the Apeeimen was fixed. "QJ9dTIOris It is the only cut on that t'hgt vas made ottor tho specimen was fixe!d! o s that right, as you understand? "ANTRER: Yes. And, of course, 7 knov bocRuse Dr. Woolner told rn4 so that they took that block when this picture vas tnken in April. "^fi?:13TIOItt hnd *.hese records that you did have with you today -•. ":ty5Y~Rs Of coTirse, ? Mapoosothose are not par t of thA 1:ospital rru,%orc4s.

579 (212) { "QiENION t And you dodt bave any so i.ent if io r©aearcb or suppoz-t for ttat, that id just your BXpl~tlop4 "ANSNER: That is just Vq oomon senae. "QUENI0;U Iiov ineofar as your coaroA aenas is oouoernod, it is true, is it notp that vbetber you call it extrinsic laryas# vbetber you aal.l it bypoph=yaac j or vbttther you call it the qyriform fossa,, that whiakey is moot ofton associated with tbat type of caneer ratber than viLtb caocer on the insidm of tbe larynx* isa't that true? "ANSWgRt Ob, I can't asree vitb ttiat. "QMSTIONt You can't4 "1#NSMt I4o. "O.-M`3TION: You don't acccpt that portion of Dr. tiyader's obs'Errvation3 All rigbt j* giv© me his obsarvatioas. That is Txbibit B. Now wbile be is looking for tbdt-• "At~S'~SRt I tbink if be is a beevy gmoker' be a oortain--ve vi]1 oall it basic porceate,gE+ of Eetting aanaer".•M PR. FMM "Of rimk of getting a&noer." M2. HAMYs I will start ovor. Oeadiuge) "A:MAK^ s I tbink if bo Zs a, bCavy srxoker be has a oorte.itr-tie will v~lll it basio paroe-ntu~;e of ri &r

aFs41 I F 579 (263) f311 out of s::!ol{o prtrtictes in air apply in the pyritor+» fosaR arRa? "A*IVE'lt I vo•aId assume that ft j+ovld, yee. 'i As I say* Ihave not rsade any studies on i+.. " flIUMsr2a,14 S.o based on that assumption vhioh you have mad• upon your »odical know'tedgs# thon this vaul be a place vhero those volatile tars and resins in tobaoa snoke could well fall out and condense !n the oddyina air that invac4as this ndrifoxm t`oaaa, inaldPnt to the process of inspirations is thnt not correot? "A`:~~.a, r Yes, it Won:ld be postsibl• that the aire here wou2d not be roving ao rapidly and it uoutd be possible that matsrial suspended in !t could »-. "!IMSTI4i4 t'recfpitiate Rnd fa1l out? "Ar. tSFtI Falt out of it # yes. "(',,UG 3':rTO1ts Onto the lining or aurfaae structures of the fossa? "At:SWERt Yes. "q-j1SITI41te And that appears to you to be, emincntly logical and "eohan.ieallr oorroctq considering the anatow+y of those orEons and `issues4 " 4',~,`~I:Rs Yes. "~tt~'SrI4:~t ltnd, roctorg wo»1d you ap;ree that tn try3ns to rtnnronM± +...`~1s nrobtpA ot trarmla':1nP MAdl.opt tec!v11ca1 t-s:rMSs in+o trtY tanriaqe thnt a,1,)rv c!an i

579 (264) d? s42 understands wouZd you agree that the location of this lef pyrifom fossd, where you say John Ross' cancer lay when you saw it, that that left pyriforM fosaa lies right at the interseotion -- the ' Y' intorseetion between the food pipe and tho sxallotiring pipe? Is that a lay way to put it that you would approve of, that language? "'m: MG4ASe I1:elieve you rdsspokA yourself, `-sr. Field, the food pipe and the swallowing pipe, arent t you talking of the same -•, "M :"IgLDe I thank you very Much, Inade an error. Imade an error there, And I appreciate it, but it vas an i.nadvartence. "Q'..tEs:^IONi Iwtlt astc you if it i s not a good lay translation of the language of the epiglotti s, false cords and true cordgs interr.al surfaQee of the larynx, epiglottlc fold, pyriforn fosea, trachea and esophagus -- attenpting to translate those technical raRdioal terns and their various relationships in the throat to lay language, would you not say it well • expresses to point out that the left pyriform fossa lies at the 'Y' interseation, so-to-speak, between the wind- pipe on the one hand and the avnliouing pipe or guYlet on the other? "A;:-Wr-%Rs Sde Nou3 dhave uo sAy the left Rnd the right pyriform fosnA 1io at t?ne 'Y' interseation, at the

579 (269) .'s'r`SY 7 of these tissuos that is contained in this notendnnt' e ne.ibit 1? "ANVERe Yese t. I 5 "rrl„:SiIONs 'rhotjgh your signature xasn't plaoed in the hospital reoordx„ mArely your initials were? "Ar'SWSRs Yes. "CMITIUN ' E. 14. 7.90 isn' t that corroot? "ANSWMt Yes. "frItOSTXOrls And both your reports vhich has r" ained in tissue •-? "M=Rt Tissue rQgiatry. "WR!M4V-t Tissue regiat~.rys, and which has nov been marked as Defendlnt' s rXhlbit 19 and the hospf tat records -- partiavlarlv trat sheot of the'hospitAl records called the surgical record aMoh was mArYed u year and a r Qlt ago as F1Aintiff' erxhibit 2 in the Devine depositions both tt:ose documon.*,s in conveying your report do list this ulcerating Grade 3 serialnous call apithelioma involving left pyrifor:a fossa as a er+.nc,er of the larynx, don't they?" VR. WAYs I want to rFncv my ob' ection to that qvestion for the reason it iR eompletely contrnry to the doctor's testiMonyq she having t©3tified that it vas all i^e:9ted only in the pyriform fossa. Ttn? ;`oT?rt':'e ^b3Action overriled.

t1a12 579 (216) cartain ta.~~a or aertaiu agents whiob are called caraitaogenio aZcfnts. I have obtained that lrom the librarj. "QtWrIONt And you are also familiar witb tbe taot tbat tbore taave been none of those that aay . of the doctors or scientists have found to be preseat in any aufficient amount to a,ocount for canoer, are you not? "AT0'RRt I don i tknov that I have eo said in my dQposition or 1n one of cq articles that no one bas been able to cause a caacor 'in a laboratory onim,1, by blovite s:noke in the laryuX, 'USSrIVNs And in coaoiueion, Doator, let me asts you--is there any particular reason why on_'- "AiMOR: But nobody bas found out, if you can let me tnterrupt tore--hae anybody found that alcobol bas caroinogenia agents in it? "QmmI4?i: well, I iml hi&My flattered that you ask to ina=wb as the courts are only interested in the dootor's opinion. Rov the question that I want to ask you, a*o tor, is: Is there any pertiaular reason vby in your testimr~q bore today on aq further cross eramiriation, before IKr, Pie],d queattoned you, that you S.avo-•as to aodompewyl,tig fRl~,ors it~ the e.vern-;a miform sitius csanaer, Arin4ring

579 (275) Beg53 . I tal'k to anybody about it. Ineanf it 1e obviovs that that is the location of it. "ct.rXVI4Ns And the very piece of ti ssuQ that was *.aken out --4 "hNUMt;,.Re Was taken from the pyriform !'ossa. "FZtTSSTIO:4 And tRtcen from that portion of the pyriform foesa that also aoropriqes the outer watt of the larynx, wasn't it4 "AN;WRRl It 3nciuded :aome at any rate that comprisoa the outer aell of the lnrynx. "^M.s-"IOWs 9o that the tiaspie that Dr. Aeker- nan actually exam-ined in the rAcrorcopio section taken out from there vas tissuQ .*.hat came froi tl:e outer walt of the lar%*rW "!je11 s the srtotion of ti ssue that vas taken out was in the process placed on slides for microscopic exa}n.. ination? "At:5r1'~R: The sections wPre made from that block, of ti ssue. on the "ot7r,gTI0rt S:iced off vAr;r finely and rlaceQ slides? "AA'WFRs Yes. "Qt18^T?o!'= f.nd I thovght I coliid rrorten its but T epprcaiA*.e t?i.nt bfcvlnR 7!`-!tnk it is 'hetter for t:hA 19ryl nnd t-at: tisvuA *~a~ wns La'tAn ~:~ tor '>r.

_ .JuA?o- ., End P 47 Ackerman actually oane from the outer vRi1 of th© larynx$l where part of this m an's cancer was? " AN lIRHt We11, judging from thi s photograph I could sey that at least a part of the blook that va takon out aaen* from that medial r+a11 of the pyr1form fossa. I vRn't say from this xhether it included pert of the anterior arall a1aol but it did include soae of the tnedial vaZl of the pyriform fosaa. "QZMS'fIOr;= And the inedial xall of the pyriform fossa vauld be part of the outer va21 of the laryruct "ANSWERs It lies on the outer vail of the Iarynx.

579 (?55) BFs33 .P Lhat, you know, are ten inches acrosRt but for thxs locA• tion it was relatively large. "PUFSTIOFt For this location? ".4CMt'3R= xes. "oM'"xO7e And this cancer did involve virtu- ally all of the pyriforM fosge, beginning at that part ahere it originates right by the epiglottie fold and oon» tinues on dovn, didn't it? "AMM s Pretty much All of the pyriform foseAl yea. "VE3`I`IU!?s And I believe you did toZl Vr. Hardy on direct examination that part of this pyriforec tossa is also the outside wall of the larynx? "ANVERt It is attnched to the o•atxide wall of the larynx. Yes, I suppose, it forms a part of itt sure. "CLx.SxIO?is Yes. It for-is it because the pyri- form fossa is not, so the Court and jury understand itt th pyriform fossa, Dootori is not an organ, is it? "AfiWFYt: k'ell, fossa, of co+mee, neans cavity. "Q?JFBTIOt;t So the answer ia, it is r.ot an organ is it? "At7;;WBRi Yes. 0 ""IO?tI It is a pit or devr!!ssion or oonfig» uration,ot .t.souA, .ist:'-.at no*t correct? "R'N'SWYT+ Tt in a dpnrenilon or pit, yRS, vhiah

579 (280) . . t "QUMT2021t About the eaYne levelj and the yyrJ.foru fossa is on the side, I believe you stated? ' A2~Srl8R: Yes. •RVESTION't And the Dyriloxm lossa on both aides theret "A1Z3WSR: Yes. = "QUFSTxONr And when you inhale the auction comes through the larynx or otherwise? "1M"''u"t e The air that reaohes the lungs znua t o ome through the. laryruc, yea, "QttE.,`'TION: Now when Xr. Fiald was asking you about the @xtrinsic wall or extrinsic tigsues of the laryrnc, you said i! I understood you correctly that, the modial wall of the pyritorin fossa lies on the outer wall of the larynx, ia that oorreat! "M y'ZMDs She said it Is the wa11. "tYt, fiMY t I am aaking her. "M, F1ELDs It couldn't lie on because it is not an en tity. I "ANS1~c't t Well, I dont t zemember apeoitioally what I said. "@USSTIQNt Wsil, how would you phrase it nowt "ANSWHRt The relationahip of the n+cdial wall of the pyriform tbssa to the letei•al wall of. the ]ttrynx! "QU13,.STroNs Yent

579 (279) l testifying on, you diatinguished that air is present there in the pyritorm foeaa. Do you know whether or not in the proQesa oP inhaling or exhaling there 3• any exchange of the air that ia in the pyriform fosaet "P.M°'aBR: No, I don't knort. There would ffiaoat bound to be aortie exahange. "Qt1NSTI0rNs But you dontt k»oe ahethar there is aorie or not? T3uti you don't know hoe woh exchange there ie! "l1N~.. , t No, I dont t, "QiTSSTIONt Nox diroatl.n,g your attention to Dafendant laExhl.bit 4 on which you outlined the eancer that you fouhd in this oase, I aill ask you if the way the larynx is standing in that photograph is the swme way it standa in the body, with the uppar portion of the photograph being higher in the body than the lower portion of the photographt "A2J3WEt= Yes, iantt "QUESTION: Now I will ask you also if it't true that the upperlaost portion of the air inlet to tht larynx is located higher in the body than the pyrifora fossat "A?t3IM: Well, I would say the upper Iirite of the entranae to the larynx and the upper lf.mxtu ox' the pyr7.torm foeua arA about the sFrae level,

579 (268) "Oon-I4?:s And ins}e%d it wRs copied into the hospital record wimnary sheets wasn't It? "AIi„'k'~Rs Yes. "CtJsmPIO?it And the original doavnent which they have riov had raarked as Defendant' s'3chibit 1 remain in your officef.didn't it? "AN."WRnt Vlellt it rmnained in file in. ti ssue registry. "^VESTICNt And not with the body of the ?!os- pital record? "AMuRi Yes, not with V-:e patient's record. " MCSTIoNt Nt these hospital records vh.iah were marked a year and a half ago V-hen ve took 1)r. Devine' s daposition, as Plaintiff' sEc.hibit ?, do -- and you have the original there before you and I have a photostat -- carry under the sheet entitled '•"surgical Reaord, if.ayo Clinic' on the reverss side what purports to t+e a verbatl.ncopy of your pAthological ecanination as shown by your individual report vhich has been r.+arked > nov as Defendant' s.r,xhibit 1, isn' t t-^at correct? "ANS`dERs Yes, that is oorreot. J~ ~ ~ "Q=rMs ao thAt vfien thi s record, Msin- r tiff' s"zhibit 2 in the flr. tevine denosi tion of a,vear and a'palf ago was offc+reA in avid". ce, it nontatned al.t the language nC yv>>r rt-+.41ilogiunt repnr~ an tho exr.ninati t

r 579 (?87) laryngeal xharyruc,, the termr-axvJ that is "ARSWffiR s Yes. "QV84TI4Ns Does that snn the earA or different than the hypopharyra or are those terms interahangeablet "AN3'3Rs I believe they are interohengeable# certainly laryngopharynx is h,qpopharynt. "QUESTIONs Now thZs tissue that Mr. Field referred to ab being rewoved from D©fendant! a Echibit 4, the photograph he desoribed, the piaashere, was that done, to your knouledge, by Dr. Woolnor of the mayo Cliniot "Ah"SWIMs Yee, it was done by Dro woolner of the F`:ayo Clinio. "QVSSTxONs At the time that Dr. Ackerman was heret "ANstCMs Yea. "QiMTIQNt When we are telking about I' extrinaio awhile ago aa being outside of the laryna, whenNe refer to intrinsic cancer of the lnrynx what do we refer to? "PNSr.TR: Well, that ie another term that ie used differently by .lifterent individuals, Another roason why it id aort of•-

579 (257) B?$35 , the larynx, you don't knox, do you? "AN ,;~Tns I don' t suppose one can " Qi.Tgs:'IOns I!"ean you -- you don' t knov? "11Ti.."MERt Whether it started -- state that again? "QtJRS i I4Ns'T'he c.Ancert by the timo you satir !t, had grovn to such proportions that it en+braeadt to •aee your language, a substantial part or a good.part of the entire left pyriform fossa, and part of that cancer inalUded that part of the pyriform fossa t~iat is the lining of the outaide aall of the lmrynxt isn' t that correct? "ANVERt Yeu. "crig3i'I0n row vhether or not that canaor! Vh it originally start©dt started in that portion of the pyriform foasA that uas the lining of the outside arall of the l&rynx, or the other tissues that oorprised the entire fosea, you do not knov, do you? "ANMMRe ifo." > ;M. IiARM I uant to repent my objection there. I said (readina)s "}M. NAROYt Jiist amoment, nootor; I would want to object to that qqestion for t}e rARson thRt vhen f, you speak of. ---I w n' •- unders`and that -- rfieri you .spRFA~ of the lining of %hr outar w-Atts Vn9ther ot• not you are

579 (219) "kYUr'EZs Yes, I t;elieve tbey have. They ptvc9 oancer f rom tar, that comQe f roca tobacco in laboratories "QtiMI01Ns I am talking sbout aarolooEenst "ANSFXR c In my va,y # that is a oaroinogea. You may aa11 it tar if you vant to, but I don't kaovs, vt}at is tar? There is soaotbiag in the tar that prod I canoor in the l.aboratory animl, and ttattar is taken ~ from the oiLiwette or oigaretto amka, ard if you vsat to quibble aad vant to go into this tor tns next two houre as to wbat is a caroinogea-it is tard to sayp but you are vaatinp, your time vitb ma. "aMWION: I vasnst bringing that in# Doctor, that wets brougbt in by Mr. Fieldss question of you. Nov I want to aak you, Vben you sal'you believe it is the tar, Iv ial ask you it it lsnst true ttet in the case of produotion of cancor that the on].y place that they tave ever uaed olgerette tar to gour knovledge ig on the skin of aniayala, ian s t that truet ". "1MWER s Yes. "QWMIOTts And you do know that ttsey tsav conduoted mny teats by having the aniaais i.nbale suf t ia iQnt amake into their ].arynx and lungs, an4 the, have r*ever br:en suokesstul in,produoing any 0uob ~~uner Pvnr iM a.nimaa, 1 on s t tbAt aorro ot!

579 (283) A;R, HpRf3yi YOu read so tauah better on some things than you do on others, it you will juat speak loudly enough for the lury to all hear you and counsel to hear youp X would appreoiate it. (Reading)t "QUESTZGATs And insofar as any air reaching it or any exchaxsge of air durirg inspiration tm the pyritorm fossei or into it, do you know of any experi• mental evidence or do you have any actual knouledge as to how much air gets there, or are you simply reasoning that ainae it is located adSacent to the larynx that come of 1t must geC theret "ANStvSRi I don1t know how mwh gets there, no. Ikrnoor that it has to have air ib it, unless It in filled up with somothing else." Is that loud enough? 1.24 HARDYi That ia tine, That ia perfect, (Readitig) a 2'aw xithregard to Mr. pield asking you about your knowledge of atomic bombs and fall out, have you uade any particular study of thatt "ANSWBR: No, I haven't made a particular study of that. "QU'g.,TZQNt Now with regard to any subatano• that wight precipl-%Ato out of air inhaled, do you know

579 (270) BFa43 t-. mR. rIF:LDs (RgRding) s "AP'MRt ~'he speciben that I received was the larynx and the attached tissuest and I diagnosed cRncer of the pyrifor:ro 4ossa which was part of th* srecibAn that I received and in wrioh in brief I xdentified as larynxg meaning larynx and attached Eissrues. "~JES rI07t That i s what I thought, so when you vrote up fo»r pathological reportg the original report which has been kept in the tissue office and has been marked as Defendant's ?'xhibit 1 in this depositiong under the section ' I}iag.nosis' you put as folloaa% did you nott 'Larynxs Ulcerating Grade 3 squa,tous cell epithelioma (3 x 1.8 x.4 cm.) involving left pyriform fossas period'. And then next, 't'odes rtnd gaanda: inf].armatory', is that right? "~.~tS~1FRs Yes. "WESTI02tt 8o you tound that the nodes and glands vere inflar~..*~atory, but yon found no oanoer$ as suchg in them? "RfiMMRs I foitnd no cancer in theM. "OMSTI9Ms And in the larynx after which you pnt a colon# you did li.at the arade 3 ulooratinq squa"ous eell epithelf.omn involving the left pyrifor-n fossaq did you not?" ~~, JA`iDYr '"hA` rnwq':`.ion uea withdrarrn.

.sF's16 , 579 (238) . on your report umder diagnosis% you put 'Larynxt' -- and what were you indicating theret "A1;N83ts I waa indicating that the tcpe©iMen that we received of the larynx and its Attaohed tissues was the tissue that Iwas giving the diagnosis for at that point. "WSSIIONs The larynx was removed by Dr. Dovine in this ease? "ANSWg3fi The larynx vas re^:oved by Dr. Devine. "WEsrIaNs And tre larynx and the other ti ssue that you have described earlier as the orean or tissue% wero the thinrs that were delivered to you for exar+ina- tion? "AMMRt Yes. "AU"sSTIO?tt row then yomi describe af*er the colong you have got 'tTleerating 4rade 3 scuamonas call epithelioma'l nov for the benefit of the jury9 that ie a canoers is it not? "AnWRRe That is eanaer. , "W8s'*IOt7t And then you give the measuremE!tits, 3 by 1.q by ,4 centimetors in parenthesis, ' involving left pyriform fosaa.' row$" that is the end of the quotR, Does thet describe any cancer at any site other than thA left p}~rit4r~ t'osaa?; _ .41M1 Yo, that d4nRn' ; describg arnoar sit 0

T 579 (292) interc2angeable--eueh aa etthc:r ti,ypopharynx or laryngo- pharynx, or extrinsio larynx or pyriform fossa, regard- less of whether one uses those teras indit: iduallr or together, it is true, is it not, Doctor Parkhlll, that some tobacoo amoke is bound to reach and fill this area where you found John Roes# eancer when one engaged in the process of either inhaling or exhaling a cigarette, that is true, is it not? MaxsWERI Yes. • MR. I3ARDY: Just before tht. answer, for ttirther olarification, Mr. Fie2d, on page 64 I aaids "Before you answer I want to say, Doctor, do r you understa.hd the question, that I merely said Isome tobacco smoke.'" N M V ~ A

579 t?89) Hardy* mt, ItAnY t Readingy, "QUxSTICN: Ar.d going back to your report Whiah is Deferdant's Txhibit 1, when you refer on diagnosis to laryivc, 2 will ask you in accordance with what l+r. Field asked you it the larynx was and ie referred to by you as a ahart description of the entirt tissue you examined? "AN5UTRt Well, it !o a short desoription--not of the entire tiosue examined, beoau$e I also examined the nodes and co on, but it is a 4hort description of that part of the tiseue that was removed by Dr. Devine that inoluttea-Y- "QUESTIONs And did ycu diagnose any cancer any place other than in the left pyritorm fossa as you have outlined on thepioturat "ANSk`FRt No, I did not. "QUEST24N: Now when ttr. Field asked you about the 'Y' intereection, and I don't know whether I urder- stood it, the right pyriforra foasa on the right side and the left on the left side, does that form the two arves of the ' YIt "AN3Mt Yes. "QMS'r'rc7Ns And what would form the etem of the ' Y' , if you rete:, to xt as a ' Y' intersection?

5?9 (288) "QUFSTIO¢d: Does that refer to the inaide ot the larynxt "ANSMs 8y urae people, it is used to reter to lesions ot the vocal aords# and by other people it is used b roean ax~ything within the cftvity of the laaVmx„ "QUSSTYQN: That is the generrl difterenoe, that the vocal oorde are in the larymc, are they nott "ANUTRt They are inside the larynx. WO"`rSTICN: And eome people use the te:na to rePer to the vocal cordst "AHSLIRt Yee, "Q=T2QAl c Arad others use the terca intrinsia to reler to the ffhole knide ot the larynx? "ANSNZRt Yes. "QUSSTI4Ns And they nevor use that to describe a hyp4Pharyngeal car,oer, do they? "ANSWER s The tersa intrinsio tumor d the larynxt No, "QUgSTICN3 And going back to your report'. Nhioh is Defendant's Exhibit 1, when you reter on diagr,oaio to larynx, I will ask you in accordanae with what War. Field aeked you"-- iM. PIM .Di Here is the exhibit, (L'chibit passed to jury. ) t4R, RX=t Pardon me, start over aKain, Mr.

579 (290) "1.i1SMs Well, it depanJs on whieh way you are looking at it. You can look at it and aey the esophngun-tihs upper part of the osophr.guc forms thr eten of the IV i "QU".STIMts NoM in deaor ibing a!Y' ibterseotio then- "ArISVMt or you could say that the pharym above forma the atom of the 'Ys, depending onM- 'QUESTIOBt s knd thi a would be on one of the two arr.:a of the ' Y' ? "nIS4:7As Yoe. "QU'~.~.3TSQN sEither way you looked at it? °ANSMMe Yes, *Q'cWTloPts That cancer wss located there? «p.NSMe Yed, "QUMTIONs Now that being true, the location of this ceicor was on the outside of one of the stems of the 'Y' j do Z understatA it aorreotly? , "h??: wERi Z don9tknow what you mean by the " outside of the ubom. "QU39TYO14s Well, you have deacribed a OYi intersection going both direotions, one is the esophagus being the stem and the two pyriform hasa being the armA of the ' Y" that protrude up? Doator Parkhill, as I undern tt?od. _yru. deucribed rwn _tYla+ .. otie__ 9t .vhioh the I a

579 (228) not found aoybody that said caroinogons are present in alaobol, I msume, tberefore, that amokiqg i• the croet fmportant for the oanoer that be bad"-- MR. x'I=t "Most Smportant reaaou"• MR. RAMY: --"caet importaat raasoa for the oanoer that be bad in bie pyriforca sf.uus& aot the alcobcl. "QtMSTION: And you assucaa that even tbou,gb you also ooncede that no ooe bas ever eetabliabed that tberQ am any different kinds of carainogens ia tobaaeo in sufficiept amounts arq more than tbere are ip the vegetables we eat dail't "ANSIX-Rt I am not sure tbet tbet is correot; IQMSTIOM: Can you refer to aa9 so-oalled scieutists, a$ you Gall tbom, that have said that tbey have identified any caroinogens ia tobavco that tb©y fool is preseat in suft`ioieat amountn to acoount for the aaaaer of the luns, traoUea--any plaoe4 "Ah'SWs I sugpeat you are vacsting to know if someone bas identified a pure aubstaaae alone? "QUESTIOIi: No, I want to knov it anpope# to your tswvaedge, has 1 dent if ied any c:arolnogens present in tobacoo iq vbatever that paraop or anyone sc ient iat f att vas u:,xfile, 3.otix to ao oou; t tor t„o psvAuc t iou of oant:.ev?

579 (271) RF49s , 34R. FIF.LDs (Reading) t "MR. FIxLDt I will withdrav that and rephrase it. "CUEO"`I4x: Dndor the generic or broad classi- fication of larynxo you placed the ulcerating drAde 3 sqiaAmoua cell epi thelion-a involving left pyrifarm fossat didn't you? "A2:MRs Yea. "^T'FS'*I0?:: And you contrary vise didn't put the word pharjnx there, d i d you? "P.':U'rRt 7*.o, I didn' t put f t there. That Is right, we na!ce our rQporta hri af and rondFnse the.m. I didn't mention either the epigZottia, iru!_ob vas inaluded in that specinen. It 3.r.,plies the larynx and th4 attnched tissue. We nAke our reports brief becnun© we do have t'zo r-pocisnat and any time RnyonA vants to krtoa exactly how rrich vas included or vhat the nituation vast they can nlwqys -~. "Qit71,3'"I0i°: `lov yon have tearnRSd after oonfer- ring with the attorneya for the dofendant here and from your kmo•,;e rdse of this case thr3t Dr. i,. V. Aekerimrtn" -- have you got those +*xhihf tsq !!r. ''ardy? ".R. !Tr.3''n!t „11 eacoert the one thnt yesterday was introduaed in eviderce. ,M. l11t u7Ii 1 rce «hf:~1, rN':Clin,r,Jt

579 (286) "QURSTIONt Of the extrinsic larynxt "AM-Tts Because it is Ao intimately QonOeriSed. "QUEST2M It is extrinsi4 you are referring to, areyou uot! "A2r•St,iNR: Yea. "QtlESTi4Nt You are aware, gre you. Dr. Paridl.tll, of the thot that t_:roughout rsedioal science that the terw extrinsic toieter to lesiona outside of the larynx is Dreeent2,y bei.ng abardoned and criticized? *IMM: There has been some criticism of the tem extrinaio lesions of the laryx,x a.nQ partly becuuuo it is used in a different sense by $one individuals than others. "QUESTIQNs All right. Now the pharynx, which you said included the hypopharynx, what else besides hypopharynx In ineluded In the term phnrynx in a per$on4 "ANSWIM: Oh, the pharynx In general refers to the opening of the throat which inaludea the iWpopharytvc, the oral pharynx and the nasopharynx, The neaopharynxj of aourse, being at the level of the nosa# and the oral yherynx being at the level of the mouth and into which the mouth openw, and the hypopharynx below that, each coutinuous with the other, "QUgSi'IOis: All right. So that the terma

BFs37 ; 579 (259) have marked it out rere on DQfer.dant' a~:xhibit 4, thstt crater or deprossion is -exposed and open to the air* isn't it, that is brought into the lung? "ArMER1 It is exposed to the a.irg yes. "+Uv..S2I0Ws 4nd it is e~xpooed a:Q open to the air that is brought through the oral cavity doVn event- ua11y to the inside of the lar3mxs isn't it? M ~lR~t.f1?b. T• 4r ~. I.i. ~!~ vs~ su.~•~_ n s.~nsli~~ a V .ia Y a +v a ~,J v i v. v. "CWS TIOlci And Is it not a fact$ poctorl that in taking an x-ray or during a fluorosaopy of this region from tho outside of the body through the skinp ao-to-speak, that, thsse pyriform fosedt the left and the ri ght i are i.denti fi ed and vi ewabl e on the x-ray becau s e of their air content? "At?.TMs Yesj that is true. "~L1E^i?O?t: And is it not also a fact, Doctors considering for the moment the nechRnios of air as it enters the mout*h originally and goes through the rnouth or the nose and goes down into the -- approaching this area, that as the air reaches this top of thR pharynx$ Imaan the lArynx, so-to-speA'r, and is drawn then down th oords and into the lungsl that t?hAt air cpsite naturatly would -- sons of it wo•sld eddy And sxirl nnd find its way xn`o the teft, uyri forn. fogaR, is that not r.+eoranio- ally sound to l~av tratt s• ~ 0 N 0 ac .4 aP w ~

579 (262) gases or svc`i a combinAtion of gases as ai.r, that •ihen air has velocity the foreign particZes in xt can be carried a greater distance, but when the air closes doxn and loses its velocity, the foroip,n particles drop frox it? "AM'"WER: It would tend to drop out, oertaYnly more vould drop out. "ci1CS"I4141: And, ot course, you as a scientist, and indeed today the Zayman even, knrn+ *,.hat the partioles in the air from the faLto~it of ato,mio bombs, because of their grent veloeity, can carry som.e of those particles around the world -- can and do? "ANINM: ves, I hear they can. ",<< SIT7O53!. And you knov tha t to be a physical fact from your knovledgo of physicrs, vouidn' t you? "AFIGNERt Yes. "CM-STxONt And when contrnry vise that air beconas either etaEnant or loses the velocity, then thosQ oxtrc*mely ninute partioaos, as a rearalt, ror • exeo9le, says of an ato'nfc exploxio», they then fall out and come down to earth, don` t they? "4Kf;W~'Rt Yes, as fAr as I know. "^T111STZONi And would tr.at Ra^io mPe'Anieat principtA, f?e-m your knwle~,i,;e oC nAdicine ar.d the anatovy of thos* orp,AnK, tfould tl~nt sa•ic nriiictrte ~~f

beg tial ! . 579 (205) HR. FIgLD= JudEo t}ibsoa, my I Augveat ttat, subjeot to the rulinEa of ].ant Thursday, we complete the reading of Dr. t)evinels testiraony and tben at the oonolusiop of that tbat we =y prove-•or at least deolde tbie question about the odr,dasibility of oertain otier evidence, depending on the Oourt f s ruling aade on that matter of proof? TS COVRTs How long do you expeot that wM teket MR. = ~: ThQ of f er! 'Ib`g COURT: rvo» M. FI=s uell, ve we at pav 84 nov. If I don I t read tbat,0 that would take us to " 8'r. It will be from 87 on. There is a qu8stioa tbe" that would be inaludeti, eo we would start at page 88. MI COUAT s Ttat would probably be tbe best way to barxTle the order. I was trying to soe it ttiers waanlt oome otbar way we oould go ahead vitb soae furtber testiaeany and then wybe have a discussion during tt)e noon Uotu'. MR. FIgWt Wt31]., I oould read Dr. Parkbill ls d©positioe. IdoaIi think tbereis M aroes-examinatLoa in tbet-- ~~. FA'EWYt fto, but you oould do like you s+aid# go to pago C`3 e.nd rr.cd froa tbere anlt iuet omit from 84 ~ 0 N 0 oe v v v V

A $1M E 579 (284) of any experimental evidenoe that shown any aaientitie knowledge regarding the filtering out or deposititsg in the pyritorrA sinus of substatzoe in the air that io breathed or smoke or en,y other saattert "ANSMIt 1u the pyritora sinuat No. "QUBSTI4M So that when you were teatifying on that eubJeot you were not basing that on any experimental evidence that you kncrw about, but onxy. gensral thought on >tt "ANSWgRs "neral ootmm sonse." Is that loud er+ougtat FA, H=Yt Yea, but you vary. Xofi drop your on voice/two or three queations and then you come baok, I dons t knoa why that is. THE Ct3VRTt Just try to suctain the same tone or tiaibre-. 12, HJJ;DYs That ie what I would want* Your Honor. (Reading) _ "QUESTIONs Nou let get to the npeoifias tiQre of Mr, John Rosss pyriform ainus f did you tind any toreigp matter other than--well, I d on't suppose you would call it foreign-•I am not referring to the oenosr, but did you find susy foreign uubate.nce in his pyritorss fosaa when you exb,uinsd itt

579 (214) oombiaation ot swking snd drinking is bad bQCauae of the wjount of e..~kking that goes on, but not beaausa of the amount of liquor that is oonaumod. "+QUI9rt10Pf s And now let me ask you tbis, it jou agree with this statement from page 96 of the artiale that you oit®d and I bave questioned you about before--vW1.l, fir9t, I will refer to " SS, M-1cohols Jaokeon as well as Ahlbom bas avJntLoW tto bi& intake of alcohol awng l.earynx-oaaoer patients, a©linical impression that has boon obsorved by uuW pbysioinns aaoustocsed to hantilitig lw7ngeal-oanoer patients, Thirty-four peraent of Tirahner and Ma3.kias larytuc-cenoor potieotstrank.exaeasivoly". Thooe data ver0 not camperad with those for a control group. 3eweral woxkers have boeu impresba3 with the bigb rate of alcoholism awng patients with l=Vnx oanaero eapeoiall.y that of tbe extrinffiia type. + And okippiug on to page 96, sInsofar as alaohol is ooncerned, ths extrinaio larytnc soriAs sboue the greatest differonoe frQm tbo tzontrol eories. Nondrinkers are absent iq the larynx aeri©s, althougb there are nine noodrinkers to the matcbed oontrols. There are tventy-six heavy vhi,skey drinkers in the eXtrinsio-].aryeaa seriefj, as oorapArad to elaven iri t?va controls, atxl a1l but one of t'o h;;nvy c:rtnt-ors iu the Qxtrinoio-yzarynx seriea

3Fsk3 ~ . I . _~5 79 (_265~ point ahers the eormon air Rnd food plasaqo ends and divides to tom the food passage Rnd the air passAge. " ~OorI0rt Now thereforet when air goes throug the lungs frorn the process of inspirationt sosee d that air necessarily invades the pyriform fossa area? "ANWBRt Yost I think that is true. "CtTg ITIArit A.nd also in doscribin€ Zohn 14ois' cancEr and the location as you found itj this fossa part of which you have already testifiedp lies on iut area `lsnown as the external va11 or o-atside of the larynx? This fossa area is sometimes describod as part of the lar;mgeal pbarynx, i sn' t that trve? "AN..*it Yes# the taryn.geat phnrynxq and it usually is used interohkngEably, I vot3ld say, vith the term hypopharytut. "i-7CSTIONs Yes, butt you see, hypopharynxg of course, raeans under# doesn' t it? "AN,,W;Rt Yes. "Wg3iI4Nt Jlist as hypodermic means under the skin? "A*=~riT~'Re Yesq and this hypopharyngpal nenns tbe lover part of the pharynx. "i~Mc,S`IOr~t And the larynx lies within the lover part o!'.fhe pharynx, doeRr't it? WPl.l, t)-e Lrnrer pnrt off tho r.harynx

~ 579 (.285)_ I "AHS'2: Yo, I didut b find any foreign substanoe. I didntL asske any oheraical asalysia looking for any ainute =.ounts d loreign sucbstanoe. "QURS,IONt You didn't lirid anything that edght have bsen filtered into the pyriform toasa or deposited there! oAKSms I3o. "QUgSTZCNs All right. fta the pyriforre sinus, you teotxfted on direct, is a part of the phsryruc known aa the hypopharynx f now I want to ask you if it is not a taot that no one in referrir.g to the hu: an anatomy-»no one in the a4ientifxa world refers to the pyriPorw sinus a o being arVChing but a part ot the hypophax'3+xts:t" `ii7, l: of 1" Then that was obJeatod to. Th4n you eaid, "I srill rephrase It and take It in two bitee: MR, RAttM (Readitsg) a "QUESTZ4DT: What portion anatomiaally of the bo~V is the y~-,~rifora sinus gituafi.ed isst "~KSM, s Well, the ;.yriform sinus is in tht f h.vDoPharyms or Wxt of the hyDopharynx• "qUMTICM Itnnd It is ao rererrea to by pathologists and other dootora, ia It not? "AIjSUFA; Yes, but i s often also referred to uhen diaouasi.rg tLvorp. of the larynt.

_ 579 (272) "Otrg.jTI0F.j 'tow you hAve temrned after cor!'er- i ring vith the attorneys for the defondant here and fron your knowtedge of this case that Dr. L. V. AcItermcuig vhos ~ narxe a.ppvars in tho photograph of John Ross' apeoinen nov eight years removed frm his throats taken on the 12th of April 1960% that that Pr. Aokerman vas hdre at the behest of the derendant? "AWSWE"R: Yes* I believe I knerr '~e vas here at ; the behest of the defendant. "qtf319TIONs Rnd, of courset it vas obvious today vhon Yx. Foltzaang one of the attorneys for the dePendants produced a copy of tho photograph? "Ai:SWERs I don't remonber in so many vords yesi I think that was true. w "OS9 TIONe And Dr. Ackerman is not a?tayo' s doctors is he? "A?eairM.Rt He is not. "piTEaTYOVs In facts he is from v!here? "A4t,0-wZRj St, i,ouis, Aasouri. "MMTIOMs And the file indieates that there is a letter clearing his coming here to examinR the speeir,en that remainea and to kave some vork done on t!^s tissue? " MIT3i~l~tt I believe so. &n1 In refArring to DRfondarit' s

579 (281) "p.NSttiTRt well, you are aaking a question that has been disausced both waye, I would say that the medial wall of the pyriform fossa is situated on the lateral wall of the larynx. "QUESTYONt All right,Arud medial wall, I believe you defino as the ineidd wall? "ANSt~'~: The one closest to the xid lins. "O=~ a ZW-ts Right, so the wedial wall of the pyriforn fossa that is situsted on tho lateral wall of the larynx Is the one toward the inside? "tsNSkMt Toward the centero yes. "QUMIONs Y3s, toaartd the center, "MSI-Ms Not toward the inatde, because it depends on what you are using it in relation to. "OTWTIONs And would it be fair to say that the musale in there is like a parting wall such as the wall between two roomt "A2dStMRi You are talking about the tissues between the pyriPorm toasa and the aavity of the larynxp are you? "QUFSTIONs Yes. "ANSIMIt Yes, I think you could refer to that tissue e a a psrting aall, not neoesserily muscl.. "QUR"TxOY: Dootor Parkfiill, does the pyrifox+so foana--first, lot me aak you, Via pyrxfora fossa end the

, t 579 (267) Dr. Oevine' x deposition was taken by us a year and a halt , ago to preserve the testimonyg we asked tre legAl offieers here to produce the hospital records and vhen they did produce those 11;ospital records they were produced inolud• ing the summsry shoet.and the general hospital reoordst but the legal officers here at aayo's did not produce this patholoeierl report from your olYice, and I vould like to clear that up so that there will not be left any inference there vas some irroroper aotion in failinr to produco this record 2'rom your office a year and a half ago, do you follow rae? "Ah^:ERt I believe ao. And so that is why I ask yout Defendant's 7)chibit I Is a pathologiedl,report or slip that Is in your office and Is not ordinarily kept and carried as part of the tile of the ?zoApithl records of the case, Is 3t? "AMS'tdARs xt is in the hospital record of the oase,. but it has been copied onto the sumary sheet,-> "OUUgSTIOt7t Yest ma' amt that is what I vent to c:avo elear_ to_the__Coirt_and_Ju_ry. _Yt i"erfectt_y_ctear you and to counsel for the defendant and to counsel for the plaintiff, but I want the jury to Rgt thisg so what has been pq,1r'red r. R nt: t'~n~lan*' s'"xhihit t«»? r s.:.:':nR DO,-m not 5tay In the liis,*.ory. 0

579 (2rr) "CtUES11ONs Isn't that oorreott "A?iSWERr Yes. "QU~STICN# And so another way of putting this would be that part of this cancer involved the outer wall or extrinsio wall of the larytvc rather than the inner wall or intrinsicwall of the larynx, ientt that truet "A2iSWERs Yes, that is often referred to as part of tho extrinsio. "QtIBSTIONt Larynxt "ANSWE.Rs Tis$ues of the 2arynx. "QUE.5T24Ns And whether It be described as involrring part of the euCrinsi4 tiasuea of the larym or part of the pyriforra tosea, or the medial wall of the pyriform fossa or irYvolving part of the lining of the outside wall of the lary=, where we use anr of those terms this zuah is oQrtAin, ia It not, Dr. Parkhill, that the area where you found this cancer is an area which is inliltratea by air and wV smokr ' particles therein as It is drawn into the lungs aqd throutgh the larymct At the present tieae that ia true? "AN3WERt I rea 11 y don't like to use the term intiltrRte. o!' oourse, tochnioelly, It means It pQnetrates tis$ue, and I would nry that It is part of

579 (282) 7'~+ T ~ r-- , pyritorm sinus a re the two words fbr the same thingt "ANSIMRs Yes. "QUBSxION: Does the pyritorm tons a have any function in respiration, to your knowledge? "ANSw£R: xwould say no function in respiration to ry knowledga. "QUgSTXON: Now does the pyriform tosaa in the saailowina of foods, that is the pyriform toas& on both eiaea, act as a pathway tor the food to the esorhagust "AUiSI-MR: A pathway for the tooa, yes. "Qtt~.,.STZON: So that when you swallow food does it have to go over either the right pyritom tosea or the left pyrilot+m fosaa in order to got to the I esophagust "ANSUBRs Yea, Iwould have to say it doms. "QUESTIANs Now this pyritorm to$ea, as you were talking about it with Mr. Field, is a pit or aa depresaionj would it be fair to say that itIs eort•ot a recess that is embodied at oertain times in sort ot folds so it is depressed? "ANS'Eft: At least one rargin of the pyritorsa toQSa in limited or deliminted by a fold, yes." M. HA..4DY: Can everybody hear the doatort MR, FMA i I thought they were hearing me,

579 (274) M952 "V;S :'I^4 t I a^i sure they are not, trut they are records that you brought here today, thRt is all I ai eoming to so there von't be any mystery about it, they carry a notation fro:a A. ~:. Reitla of V%e logpt office under date of April S, 1960, that L*r. Lavrenoe Ackerman of St. Louis ia schadu2ed to rovicw this history and our surgical specimEms on Tuasday, April 14th of tria yeart and-ie thAt-correat?- - - "R11M,o?ZRz On Tuesday, April 12th, yes. "Q'Ji.5TI4*Ti April 12th of thir y^nr. And so of your otian kno•.rledgo of the procedures and of the 11boratory that accovnts for the rcmoval of ti ssue as shovn in- t!:e photograph this year? "A?.V3Rt . Yes. STZONs Mo•a did you aiso deter:~ine that Dr. Ackerman, aho you said you have learned vas up here a, the bahest of tne defendant, that your earlier diag- nosis of squamous cell cancer was correct and confirmed? "A`:,SMt Yss. "n:~5TI0Ns When Aekermafi care here? "Aft"~:a~'L*Rt Yes. "fWrE3rIC?*s And your prpCise looation of it as boing a cancer involving the left pyriforrt fossa vae likewist confirrd cd when '~r. 4cN:l ;rnan oene here? 'f pr~.sirhe so. I dter.'t tnq,z;lrA or

579 (291) enophaguo would torm the stam and the two pWritora losaae on each side of the larynx would tora th• two armst "A?J9WBRs' Yes• "QVWTxtN: Or you said we could consider it from above, looking at the 1Y1 upside dorrn or a ditPsrens shape 1Y' and In that event the pyriform foasa would torzn the two erms from the opposite direation, is that oorreat! "ANSWSR: Yes. "6L'ESTI4NS Now either way that you look at the IYI, the loc6t i on of the canc Qr--I aia a©king you it it was on the outeide of the arra of the IYO rather than at the interssction which would be above or below the larynx? "ANotMAeThe canoer was not quite--not really at the interseation, "QUSSTxdNs Right, that is what I wanted to bring out. "R=RD3S EaW.YAIAT24N «BY M. FIELDs "QV&STIONi Dootor, I believe I only have ow qu<sstion. I am going to repeat it c;lomly. If you don't undvrot8nd It I will try to note it down here, and pleasQ tell me, but I think I:: ti11 bP elonr, Re-ar-11ees O of -i,iaother one imsza tho tHr~,in~a ?,n' .,r+:h is in part - -- -- ------- _ _ ~

579 078) I 0 I the area where air is present and comea in contact with. ~ "QUBSTION: And where some of the air goes as lt is drawn towards the lunge. isn't that.truet , "AKSWFRs Ch, I said that it does get there. I said I didn'tknoa how t=h. "QitESTICNS But you know it does get there? "ANS~r'ER, Yea, but what I said was I d idnt t know how wwch stuff would precipitate out of the eir. Yes, I am sure that air is Sn the ryrriform sinus, "QMQTS(U: And the air that gets into the pyriforin sinus oomes in the process of inspiration as well aa expiratbn, doeanOt itt "AN3VZMj Air is present there during the process of inspiration as well as the prooess of expiration." 2'HS COURTs Oentlemen, I think this is probably a good tirae to take the W-morning break, Members of the 3ury, we will have a l0-minut• . 11 receas. The Court again osutions you not to discuss the oase nor lisben to any dWussion of the oase, . (Reoess) E»R. IiAItDYt Thia, Your Honor, i s my red iroo t oxamination of Dr. Par3ftl1. "Q •.~",eION: I will have a few r;ore questio»e, Dr. I'ark'tii11. xt=king the subjeot that you weve just

579 (24T) CN J , about VnOae 1800 pratieptia that have bad canoor of the laryn,a as you have ee©n them since 1943, is that oorreot? "1IMMt That is ri;bt. OQMSTI0N: t,tov, Dootor# I believe you testi• liod In response to the exarxinatiaa of the Philip Morris counsel you t3ought the use of the terms iatrinaia ]Ax7ox and extriasl.o laryax were unneoeawri.ly ooafuoinE teras to use iadesoribiog the tiite of theee oancers ooaurriag in the 1an= am, is that correot? "AMM e xos. "QU3230M xs the niaosa that lies on the inside of the 3.arynu cavity that covers this fold called the aryepi.glottla foldp and that ia down oa the ottter side that naight be called the outside of the Xsr7wr,, is that muoosa the aaae type of tissue? pAMSWM: Yos. 'Qt3EMYdT4t Xs there any dif fereace In vhat you, WouW.d call tbepSyQicall oompositiop of that type, of cellular tissue at eitber place? "AWMIER c N0, I think thoy are about the ssme. "QMSTI4Ns And these oancers that you bsve loaated in the area of the larynx as ooaurrirg on tbe iaside of ttat waall, the xall of the larynx cavity, were those canoorit eq'%a-;oua aelll cancers, just like