Tobacco Documents Online

1 2 3 4 5 .6 7 8 9 I0 Ii 12 13 14 15 16 19 20 221 IN THE CHANCERY COURT JACKSON COUNTY, MISSISSIPPI In re: MIKE MOORE, ATTORNEY GENERAL, EX REL, STATE OF MISSISSIPPI TOBACCO LITIGATION CAUSE NO. 94-1429 DEPOSITION OF: DATE: TIME: RICHARD W. MIZERSKI, April 30, 1997 9:15 AM Ph.D. LOCATION: TAKEN BY: REPORTED BY: Offices of Interim Court 3530 Wilshire Boulevard Suite 1700 Los Angeles, California Reporting 90010 Counsel for the Plaintiff Lawrence Schumacher Certified Shorthand Reporter o 21 22 23 24 25 Computer-Aided Transcription By: A. WILLIAM ROBERTS., JR. Charleston, SC Columbia, SC (803) 722-8414 (803) 731-5224 & ASSOCIATES Charlotte, NC (704) 573-3919

222 1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 20 21 23 24 APPEARANCES OF COUNSEL: ATTORNEYS FOR THE PLAINTIFF STATE OF MISSISSIPPI: SCRUGGS, MILLETTE, LAWSON, BOZEMAN & DENT BY: JENNIFER A. COLEY 734 Delmas Avenue Pascagoula, Mississippi 39568 (601) 672-6068 ATTORNEYS FOR THE PLAINTIFF STATE OF FLORIDA: YERRID, KNOPIK & MUDANO BY: C. STEVEN YERRID I01 East Kennedy Boulevard Suite 2160 Tampa, Florida 33602 (813) 222-8222 ATTORNEYS FOR THE DEFENDANT R. J. REYNOLDS TOBACCO,. CO.: JONES, DAY, REAVIS & POGUE BY: ROBERT F. McDERMOTT, JR. GEOFFREY K. BEACH 1450 G. Street, N.W. Washington, D.C. 20005 (202) 371-5973 (INDEX AT REAR OF TRANSCRIPT) 25

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1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 17 18 19 20 21 22 23 24 25 RICHARD W. MIZERSKI, Ph.D. STIPULATION EX BY MS. 223 COLEY It is stipulated by and among Counsel that this deposition is being taken in accordance with the Federal Rules of Civil Procedure; that all objections as to Notice of this deposition are hereby waived; reserved witness does deposition. that all objections except as to form are until the time of trial; and that the not waive reading and signing of this RICHARD W. MIZERSKI, Ph.D., having been previously duly sworn, testified as follows: further EXAMINATION (CONTINUING) BY MS. COLEY: Q. Good morning, Dr. Mizerski. A. Good morning. Q. I'm going to show you what we've looked at as Exhibit 4, which is your expert statement A. Uh-huh. Q. -- and I'd like to go through already that and A. WILLIAM ROBERTS, JR., & ASSOCIATES

1 2 3 4 5 6 7 8 9 I0 12 13 14 15 16 17 18 19 2O 21 24 ask RICHARD W. MIZERSKI, you some questions. In Paragraph you have also served as a Federal Trade Commission, the State of Mississippi advertising. yesterday. investigation of 224 Ph.D. - EX BY MS. COLEY i, the last sentence says consultant to the U.S. the State of Florida.and on issues related to We talked a little bit about the FTC When you were at the FTC working on the the tobacco companies' advertising, did you advertising should be investigation at MR. MCDERMOTT: question. Vague. advertising. THE WITNESS: I ever form an opinion about whether their regulated based on the that time? I object to the form of the The FTC was regulating had at that particular time. BY MS. COLEY: Q. What kind of consulting work did you do for the State of Florida? A. Well, I did a number of consulting work for the State of Florida. For example, I did some consulting work with the.State Of Florida lottery. did some work for the Department of Insurance in terms of an expert witness; Department of don't recall what specific feelings I

1 2 3 4 5 6 7 8 9 I0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 225 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY Transportation; did a little work -- and I'm not sure it was Florida, because I was working through and their on with concerning if atgorneys -- concerning Southern Bell negative option that they advertised. Q. What specifically did you work the Florida State lottery? A. I made some presentations advertising. Q. were should advertise A. Q. information. them some an impact, those and Q. What did you Insurance for the State of A. Yes, I believe Insurance, and it's also things, like I think the cabinet head also deals with a number of other iss.~@. I remember something to do with fire insurance or fire coverage. But anyway, it was really with the attorneys in the Department of you assisting them on how they or how they shouid not advertise? How they should. And what did you advise them? did an analysis of -- of some lottery I was provided some data and provided information concerning how advertising how publicity had an impact, how both some other factors lead to sales. of do with the Department Florida? it was th~ Department of associated with some other some had of

1 2 3 4 5 6 7 8 9 I0 II i2 13 14 15 16 17 18 19 2O 21 22 23 24 25 RICHARD W. MIZERSKI, Insurance. I worked on a the advertising of -- as Medicaid coverage. Q. What was the State do regarding extended Medicaid they needed your analyses? A. There was a -- well, providers, insurance providers. Ph. D. EX BY number of cases I remember it, 226 MS. COLEY concerning extended of Florida looking to coverage for which a series of -o of And there's some statutes in Florida concerning what you can and can't do in terms of your insurance advertising and promotion, and I looked at both the direct mailing and also television advertising concerning the advertising of these products. And they were aimed at individuals in excess of 55 and up who wanted coverage for Medicaid. And there were celebrities and various kinds of creative additional use of themes that were used. And I participated in a number of trials as well as gave them consulting terms of how to address some of those potential issues. Q. So did the State of Florida have a problem with the way .a,dyertising was being done? A. Yes. Q. And that's where you came in? the in A. WILLIAM ROBERTS.

1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RICHARD W. MIZERSKI, Ph.D. A. That's correct. EX BY MS. 227 COLEY of the sure what we tollway there are these there would be a gas station and food and video and various kinds of vending machines, and the issue there was putting out a contract for the vending machines. And there wassome argument with the previous vendor as to_.~e definition of a vending machine and to the extent that~ the State could in fact let out another contract. And you analyzed the advertising for what purpose? A. To see if in fact it was potentially misleading or deceptive, and whether it would fall under the statutes that were relevant in that case. Q. And what did you conclude? A. That in a number of cases that it was indeed misleading, deceptive, and fell within some of those statutes. Q. And you did some work for the Department Transportation for Florida? A. That is correct. That had to deal with issue of vending machines. Q. What kind of vending machines? A. Vending machines on -- in toll -- I'm not would call it now, but along their gas station complexes where

1 2 5 6 7 8 9 ii 12 13 15 16 17 18 19 20 22 24 25 RICHARD W. Q. A. whether letting 228 MIZERSKI, Ph.D. EX BY MS. COLEY How did you play into that dispute? Definition of a vending machine and fell within their purview, really, of on it. cigarette vending machines involved it out a contract Were in this dispute at and beverages? A. have been at1, or was it just basically food I remember food and beverage. But it may broader than that-. That's all I remember discussing. What is the definition of a vending machine in your area of expertise? A. I don't remember exactly what I said, but basically anytime that you provide monies in response to some sort of a service or product, that would be a vending machine. Into a machine. In other words, there State promotional was no human interaction there. Q. Self-service type -- A. Exactly, yes. Q. On the lottery issue, did you assist of Florida in designing or advertising any campaigns? A. I was asked tm sit in the determination of a new lottery agency. Q. How did you assist in that? the A. WILLIAM ROBERTS, JR., & ASSOCIATES

1 3 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 229 RICHARD W. MIZERSKI, Ph.D. EX BY MS. COLEY A. They chose a number of individuals in Florida, some academics, some business people, and I was asked to evaluate the presentations and the backup data from a number of agencies who pitched the account. I then made a recommendation as to what I thought would be the most appropriate. We were given various forms to rate the agencies. So I rated the backup material, I saw the presentations, rated the presentations. Then we got into a discussion and then, you know, suggested my view. determining the target lottery purchasers? A. Well, I an issue as advertising Did you assist the State of Florida in audience they were seeking for don't recall. That certainly was to whether the advertising agency -- the agencies also provided some data, some who primary data concerning their interpretation, would be the best audience, really, for the advertising messages. Q. And who was the best audience for State of Florida's advertising messages for lottery? A. People over 1.8 years old. Adults. Q. Any other demographic information? A. I don't remember the specifics on that,