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1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CASE N0.*84-678 (SA) SUSAN HAINES, as Administratrix, DEPOSITION UPON( ad Prosequendum and Executrix ORAL EXAMINATIOr of the ESTATE OF PETER ROSSI, OF Plaintiff JOEL B. COHEN VOL. I - against - LIGGETT GROUP, INC., a Delaware corporation, LOEWS'S THEATRES, INC., a New York corporation, PHILIP MORRIS, INC., a Virginia corporation and THE TOBACCO INSTITUTE, Defendants T R A N S C R I P T of the stenographic n,:>tes of SUSAN E. GIOFFRE, a Notary Public and Certified Shorthand Reporter of the State of New Jersey, :.aken at the offices of BUDD, LARNER, GROSS, ROSENBAUM, GREENBERG & SADE, ESQS., 150 J.F.K. Parkway Short Hills, New Jersey, on Wednesday, August 14, 1991, commencing at 9:00 a.m. A P P E A R A N C E S: BUDD, LARNER, GROSS, ROSENBAUM, GREENBERG & SADE, ESQS. 150 J.F.K. Parkway Short Hills, New Jersey 07078 BY: CYNTHIA A. WALTERS, ESQ. For Plaintiff MUDGE, ROSE, GUTHRIE, ALEXANDER & FERDON, ESQS. 180 Maiden Lane New York, New York 10038 BY: JAMES V. KEARNEY, I:SQ. PATRICK J. CARTY, ESQ. For Liggett Group, Inc. UNITED STATES DISTRICT COURT REPORTERS P. O. BOX 397 (201) 643-5720 NEWARK, N. J. 07101 (201) 643-5721 STAN RIZMAN • HOWARD RAPPAPORT 9 TOM BRAZAITIS 9 MIKE DILLON • EUGENE F. HALPERIN

2 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: ARNOLD & PORTER, ESQS. 1200 New Hampshire Avenue N.W. Washington, D.C. 20036 BY: JANET L. JOHNSON, ESQ. MURRAY GARNICK, ESQ. THOMAS SILFEN, ESQ. For Philip Morris STRYKER, TAMS & DILL, ESQS. 33 Washington Street Newark, New Jersey 07102 BY: WILLIAM S. TUCKER, ESQ. For Lorillard Company GREENBAUM, ROWE, SMITH, RAVIN & DAVIS, ESQS. Metro Corporate Campus IPO Box 5600 Woodbridge, New Jersey 07095 BY: ALAN S. NAAR, ESQ. For Plaintiff Liggett Group Inc. JONES, DAY, REAVIS & POGUE, ESQS. North Point 901 Lakeside Avenue Cleveland, Ohio 44114 BY: KIM F. BIXENSTINE, ESQ. STEPHEN J. KACZYNSKI, ESQ. For R.J. Reynolds Tobacco Co. RIKER, DANZIG, SCHERER, HYLAND & PERRETTI, ESQS. Headquarters Plaza One Speedwell Avenue Morristown, New Jersey 07962-1981 BY: JEFFREY J. MILLER, ESQ. For R.J. Reynolds Tobacco Co. SHOOK, HARDY & BACON, ESQS. One Kansas City Place 1200 Main Street Kansas City, Missouri 64105 BY: ALLEN R. PURVIS, ESQ. For Defendant Lorillard & Philip Morris N U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: BROWN & CONNERY, ESQS. 360 Haddon Avenue P.O. Box 539 Westmont, New Jersey 08108 BY: JOHN J. MULDERIG, ESQ. For Philip Morris DUGHI & HEWIT, ESQS. 340 North Avenue Cranford, New Jersey 07016 BY: CHRISTOPHER J. CHRISTIE, ESQ. For The Tobacco Institute ALSO PRESENT: Teresa K. Lucas, Senior Analyst Shook, Hardy & Bacon, Esqs. I N D E X WITNESS PAGE NO. JOEL B. COHEN Direct by Mr. Kearney 6 U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 E X H I B I T S EXHIBIT NO. DESCRIPTION PAGE NO. Cohen 1 Copy of Check 7 Cohen 2 Resume of Joel B.Cohen 14 Cohen 3 Production Request 16 Cohen 4-A Summary of Deposition of Willis Steinitz 22 Cohen 4-B Deposition of Willis Stenitz 23 Cohen 5 "Peter Rossi Timeline Re: Brands Smoked" 24 Cohen 6-A Summary of Deposition of Rose Rossi 26 Cohen 6-B Deposition of Rose Rossi 26 Cohen 7-A Summary of Deposition of Carolyn Rossi 27 Ln m ~ 00 r w m m ~ U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 E X H I B I T S EXHIBIT NO. DESCRIPTION PAGE NO. Cohen 7-B Deposition of Carolyn Rossi 27 Cohen 8 Business Week Reprint, Industrial Bulletin 12/15/80 28 Cohen 9 Expert's Report, Jeffrey E. Harris, 8/1/85 35 Cohen 10 Joel B. Cohen Expert Report/Letter, 3/15/91, Walters to Counsel 62 Cohen 11 Chesterfield Ads 78 Cohen 12 Time Magazine Articles 87 Cohen 13 Life Magazine Articles 87 Cohen 14 Life Magazine Kent Ad 4/15/54 246 Cohen 15 Life Magazine Kent Ad 8/8/55 246 Cohen 16 Life Magazine Kent Ad 7/13/57 246 Cohen 17 New York Times Articles 246 Cohen 18 Letter 8/7/87, Kearney to Edell 247 w m m Ln U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

1 2 3 4 5 2 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 J O E L B E N J A M I N C O H E N, residing at 2618 22nd Avenue N.W., Gainesville, Florida 32605, having been first duly sworn, testifies as follows: DIRECT EXAMINATION BY MR. KEARNEY: Q I'm going to dispense with the preliminaries because I understand you've got a record that demonstrates you are well aware of what goes on at a deposition. A I think so. Q And if there is any question that I ask that you don't understand, you will ask me for an explanation or to restate the question? A Yes. Q If you answer a question we will assume that you have understood it. A Yes. Q I guess the place to start would be to pay you. It's my understanding, and it has been represented to me by counsel for the plaintiff, that your usual and customary rate for a deposition is $3800 a day, and that that is what you are charging us in this case and that you will not stand for deposition unless we pay you $3800 a day? A That's correct. U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

COHEN-Direct 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q That being the case, I hand you your $3800 a day. (Attorney handing.) MR. KEARNEY: As a first exhibit I would like to have marked a Xerox copy of the check that I just gave Dr. Cohen, as I guess, Cohen Exhibit 1. (Copy of check received and marked as Cohen Exhibit 1 for Identification.) Q I show you what has been marked as Cohen 1 for Identification. And can we agree this is a copy of the check? A We can agree but let me make sure that you understand what I communicated. I did not at any time say that I would not agree to having my deposition taken until I was paid. I didn't expect to be paid except at some reasonable time in the future. So I don't know if there was any misunderstanding of that. Q No, there was no misunderstanding of that. I'm not suggesting that you said you would not answer any first question unless you had been handed the money. We have had witnesses in the Cipollone case, expert witnesses, who have taken that position but I don't understand that to be your position. U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COHEN-Direct What I meant to say is that you would not stand for deposition unless we agreed to pay you $3800 a day. A That's correct. Q Have you ever charged anybody else that amount for a deposition? A Yes. For testimony. Q In what case was that? A There was a case in Miami in.January of this year, may have been February but I think it was January, and it dealt with -- I'm trying to remember the name of the case to help you out. It's Ethan Allen versus Georgetown, maybe Georgetown versus Ethan Allen. Anyhow, Ethan Allen is a furniture company, furniture manufacturer, and Georgetown is a name of a company that owns furniture stores in the Miami area. My rates went to $3800 in January of this year and I have sat for no other depositions or given no other testimony between January and the present time. So that's the only time that the $3800 fee was employed. Q Who did you testify for in that case? A It was Georgetown. Q What was the name of the lawyer for whom 8 U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (2011 AdI-°^^"

COHEN-Direct 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you testified? A Rather than waste your time now I can get you that information after the break. Q Fine. Thank you. Were you paid the $3800 at that time by Georgetown lawyers or by their adversary's lawyers? A Well, that was trial testimony so it was Georgetown lawyers. Q So it wasn't a deposition, it was trial? A It was trial testimony. Q Have you ever been paid $3800 a day for deposition testimony? A No. It's the same rate for both. Q Was there any deposition in that case of you? A No. The $3800 rate which went into effect in January is for deposition work, trial testimony and/or all travel. So the $3800 is not only for testimony. Anytime I have to leave Gainesville, Florida, even for a couple of hours, I'm going to charge $3800. And so I'm charging the same amount of money to the plaintiff in this case for the time spent here in New Jersey. Q Were you paid any other monies in addition to the $3800 in this Ethan Allen case? , U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COHEN-Direct 10 A Yes, I was. Q And your arrangement with the plaintiff or the plaintiff's counsel in the Haines case is you are going to charge them a rate of $3800 a day for trial testimony and for traveling to trial? A That's correct. Anytime I have to leave Gainesville to do any work the rate is $3800 a day. Q What's your preparation time cost? What do you charge for preparation time, if anything? A It's -- I think it's $375 an hour. Comes out to a daily rate of $3000 a day. Q Have you billed plaintiff's counsel yet anything for your work in the Haines case? A No, I haven't. Q Do you intend to? A Oh, yes. Q How many days have you spent in preparation so far for your work in the Haines case? A I haven't actually computed it so I can give you an informed guess, maybe a little better than a guess, probably somewhere between 40 and 50 hours in Gainesville and yesterday up here in New Jersey. Q How many hours yesterday? A I was here all day yesterday. U.S. DISTRICT COURT REPORTERS, NEWARK, N.J. (201) 643-5720