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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