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CERTIFIED COPY 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 IN THE CHANCERY COURT OF JACKSON COUNYY, MISSISSIPPI IN RE MIKE MOORE, ATTORNEY GENERAL EX REL, STATE OF MISSISSIPPI TOBACCO LITIGATION, Plaintiff, VS. AMERICAN TOBACCO COMPANY, et al., Defendants. Cause No. 94-1429 DEPOSITION OF: RICHARD J. SEMENIK witness LANETTE SHINDURLING, Reporter and Utah, at the BENDINGER Lake City, commencing at & PETERSON, 170 South Main, #400, Utah, on the 18th day of March, 9:00 a.m. The deposition of RICHARD J. SEMENIK, a in the above-entitled cause, taken before Registered Professional Notary Public in and for the State of law offices of GIAUQUE, CROCKETT, salt 1997, Associated Professional Reporters 10 West Broadway, Suite 200 Salt Lake City, UT 84101 1 (801) 322-3441 / FA~ (801) 322-3443

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 APPEARANCES: FOR THE PLAINTIFFS: Jennifer Coley, "Esq. SCRUGGS, MILLETTE, LAWSON Attorneys at Law 734 Delmas Avenue Pasagoula, Mississippi (602) 762-6068 FOR THE DEFENDANTS: John M. Helms, Esq. SUSMAN GODFREY, L.L.P. .Attorneys at Law 2323 Bryan Street, Suite Dallas, Texas 75201-2633 Allen R. Purvis, Esq. SHOOK, HARDY & BACON Attorneys at Law One Kansas City Place 1200 Main Street Kansas City, Missouri Janet L. Johnson, Esq. JOHNSON & TYLER, P.C. Attorneys at Law 2127 R Street, NW Washington, D.C. 20008 WITNESS RICHARD J. Examination INDEX SEMENIK b~ Ms. Coley BOZEMAN 39567 1400 64105-2118 & DENT PAGE 4

1 2 3 4 5 6 7 8 9 i0 Ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 EXHIBITS EXHIBIT NO. PAGE 1 Notice of Deposition of Defense Expert Witness _. ". 4 Vita of Richard J. Semenik 4 Rule 26 Expert Sta~ement ." 4 4 Summary statistics on research conducted in Mississippi in March of '97 46 Excerpt from Report of SG, 1979 59 Exc'erpt from The Journal of School Health, August 1982 61 7 Page from University of Connecticut Roper Center, the question "Are you currently using any contraceptive methods? If yes, which." 63 8 Beverage Milk Consumption (per capita) 1990-1996 ....... 66 9 Popular Teen Produc£s/Brands 1995 Media Spending 69 10 Tobacco Use in Mississippi 71 ii Excerpts from Psychological Reports, 1976, 38, 251-258 72 12 The Economics of Advertisinq, Richard Schmalensee, 1972, North-Holland Publishing Company, Amsterdam- London 73 13 Summary from the Bergler Book titled Zusammenfassunq 75

1 2 3 4 5 7 8 9 I0 Ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 PROCEEDINGs RICHARD J. SEMENIKo called as awitness, for and onbehalf Plaintiff, being first duly sworn, was testified as follows: (Exhibits 1 through 3 marked identification.) BY MS . Q prefer? A COLEY: Dr. Semenik, EXAMINATION Have you A Q allegations lawsuit? A of the ~xamined and for or Professor, or which do you Rich is fine or whatever first name you would like. Q My name is Jennifer Coley and I'm. a lawyer with Dick Scruggs' firm in Pascagou!a, Mississippi, representing the State of Mississippi in this case. read the Complaint in this case? Yes. So you're generally familiar with the in the Complaint and the gist of the defendants A Yes. When were you first contacted by the to be an expert witness in this case? It was sometime this summer, I believe 4

l 2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 19 20 21 22 23 24 25 July. Q A in July Q before? A Salt Godfather's versus CEP, in Salt Lake the class Q A as Engle. Q A And the Of '96? That's right. '96, yes. And have you Excuse me, this last summer been an expert ~itness Yes, I have. Q In what cases? A I have been an expert witness -in cases in Lake City. One was Go.dfather's Pizza versus Restaurant. Another was Black & Decker Incorporated, and those were both here Federal Court. I've been an expert in action suit known as Castano. And that was on behalf of the defendants? That's correct. " Class .action .suit known That would be on behal~ of the defendants? Yes. Q Clark is another case, also defendants. Kerney, K-E-R-N-E-Y, is another case. Those are ones I recall. Q" And so you've given a deposition before? Yes, I have given a deposition before. Q So you understand the rules of the game. •5

6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm going to ask you questions and if you don't understand you can ask me to rephrase or just tell me you don't understand and I'll try and commdnicate better with you, and we don't need to talk over each other and things like that. A Yes. The Godfather Pizza case that you mentioned previously, in-what area were you qualified as an expert? A I was qualified as an expert in the of consumer to trade meaning. Q or the A A decision-making specifically with dress, trademark infringement, area regard secondary And were you an expert for the plaintiff defendant in that case? The plaintiff. So that would have been the local-- Yes, the local business referred to as company that grants the Godfather's Restaurant. Q Versus the major franchise? A Correct. Q And what about the Black & Decker case, what kind of expert were you qualified to be in that case? 6

1 2 3 4 5 6 7 8 9 I0 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Precisely the same issue, t~ademark, trade dress issues.with regard to secondary meaning. Q And who were you an expert for in this that case? A I was expert for the plaintiff again. That was the CEP or DEP or-- it was almost 20 years ago so it's hard for me to remember exactly. Q I've had premarked by the court reporter three Exhibits. The first one is the Notice of Deposition. I'm going to show you that. Have you seen that before? A No, I have not. Q Were you advised that your deposition was noticed in this case? A Yes, I was. Q And were you certain documents that to the deposition? A Yes. Q And at the bottom of page i, paragraph 1 asks that all documents review by the witness i~n connection with his work in this case be produced. I received a large box of documents. Are those all the documents you'~e reviewed in preparation for this case? advised that there were needed to be produced prior 7

1 2 3 4 5 6 7 8 9 10 Ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 A Those are the documents I reviewed in preparation for this case. MR. HELMS: I'm sorry, was that question whether it was the documents he reviewed or the documents he relied on? "Q (BY MS. COLEY) Reviewed. A Those are the documents I reviewed, Q Are there more documents you do not to rely on which have not been produced? A Yes. Q For all the documents that rely on in this case have been produced that box of d6cuments? A Yes, it's my understanding. yes. intend you intend to to me in I was not physically there when the box was packed, turned over all the materials I relied on confident-- I was informed that all those were put into the box. Q Page 2 of Exhibit I, paragraph 3 but I you produce all connection with documents that in this A and I'm materials asks that in documents prepared by the witness his testimony. Are there any you have prepared for your testimony case? No, I have not.prepared any documents. Paragraph 4, "A copyof the final version

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 of any study prepared by the witness litigation or otherwise,; that is not available." Are there any such prepared any studies either for otherwise that you might-rely on? A We just received, and your hotel received a study that for this publicly documents? Have this litigation yesterday, so that the answer to Q And that document that night, which we'll get to a little bit something that you prepared? A Yes. Q Paragraph 5, "All correspondence with counsel in connection with was one letter in that box produced all correspondence with this case? A Yes. you¸ or hope that you:at I just received this is yes. I received last later, was take just record.) make one study this case." I think there of documents. Have you defense counsel in MR. HELMS: Jennifer, I'm sorry, can I a second and talk to the client? (Witness conferring with Mr. Helms off the THE WITNESS: I would like to clear up-- clarification. With regard tothe research you received yesterday, .I-- those were the 9

1 2 3 4 5 6 7 8 9 i0 ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 results as they were prepared yesterday morning from the research firm. So I have not received the underlying data as yet. It is .being overnighted to me. So I may relyon the underlying data, I may not, but I am going to rely on the results Of the study. So with that clarification I want to make sure that everything that I have used or may use has been articulated. Q (BY MS. COLEY) Okay. Paragraph 6, "All. documents that constitute or reflect communications expert had with other witnesses in this case." Are there any documents that fall into that the paragraph? A No, there are not. Q Have you had communication witnesses in this case? A 0nly one. Q And who would A That would be received with other that be? David Goff at the South4rn deposition on Friday? That was two or Mississippi State University. Q Was that since his A No, that was before. three weeks ago. Q Paragraph 7, "All documents the witness. from or sen£ to defense counsel in this I0