Tobacco Documents Online

1024 1 2 1954. 3 Q. What did you do there at that time? 4 A. I left-there to go to Emory Medical 5 School in Atlanta, Georgia. 6 Q. What type of position did you accept 7 there? 8 A. I was assistant professor of medicine in 9 the initial appointment. 10 Q. When you left what was your appointment? 11 A. I was professor and chairman of the 12 department of preventive medicine. 13 Q. For how many years were you at Emory 14 University? 15 A: Five years. 16 Q. What was the third academic appointment 17 that you received? 18 A. I had moved to Dallas, Texas to accept a 19 professorship of internal medicine and chest diseases 20 at the Southwestern Medical School of the University 21 -of Texes in Dallas and at Parkland Hospital where I 22 was director of the chest program. 23 Q. Doctor, what is your present position? 24 A. I am president of the University of Texas 25 System Cancer Center which is headquartered in the ESQUIRE REPORTING COMPANY INC.

1023 1 2 A. I obtained the medical degree it was 3 awarded in 1947? 4 A. My class actually finished their studies 5 in December of 1946. 6 Q. Doctor, when you finished your tour of 7 duty, did you do a residency? 8 A. Yes, I did. In internal medicine at the 9 New York Hospital, the teaching hospital of Cornell. 10 Q. What year did you finish your residency? 11 A. That program was divided into two parts, 12 the residency years for two years and then two years 13 of clinical research fellowship and I concluded that, 14 as I recall, in 1949. 15 Q. Doctor, when you finished your 16 fellowship, your research fellowship in 1949, did you 17 accept an academic appointment? 18 A. Yes, sir, I did, at Cornell Medical 19 School. 20 Q. What type of courses did you teach? 21 --A. I taught internal medicine. My 22 assignment at that time was to teach the sophomore 23 class, the junior class, the senior class and all 24 four years at that time of internal medicine 25 necessitated within residency. I stayed there until ESQUIRE REPORTING COMPANY INC.

1025 1 2 M.D. Anderson Hospital which is a cancer hospital in 3 Houston, Texas. 4 Q. Would you give us some idea, some 5 indication of the size of this facility? 6 A. The Anderson Hospital occupies roughly 3 7 million square feet of space. It will see about 8 31,000 patients new to it ever.y year, will admit 9 about 16,000 of those to the in-patient service and 10 will in a year's time see between 350 and 400,000 11 out-patient visits a year or about 1500 patients a 12 day. 13 Q. Doctor, what is your capacity in which 14 you serve the M.D. Anderson Center at the present 15 time? 16 A. I am the chief administrative officer of 17 that cancer center. 18 Q. Doctor, in this capacity, do you have 19 responsibilities to oversee the budget of that 20 university? 21 -A. Yes, I have responsibilities to oversee 22 the budaet and the entire nroaram including the --~ - - ~--~ ---~ ---- 23 patient care program, the research program, the 24 academic program and the cancer prevention program. 25 Q. Doctor, have you received any awards from ESQUIRE REPORTING COMPANY INC.

1026 1 2 any of the universities that you held positions as 3 faculty members? 4 A. Yes, sir, I have received such awards. 5 Q. What type of awards have you received, 6 for example, from Cornell University? 7 A. I have received the distinguished alumnus 8 award from Cornell and also from the University of 9 Alabama. 10 Q. Doctor, tell us a brief list, if you 11 would, or just give us an overview of the different 12 types of consultations and visiting professorships 13 you have experienced in your academic career? 14 A. Over the entire career I have served in 15 many capacities, as a consultant to the Veterans 16 Administration and to various professional groups and 17 held positions on hospital staffs as consultants and 18 those hospitals in which I was not directly 19 associated with care. 20 In addition to that, I have served as 21 consuitant on various committees and programs of the 22 federal and state government and I have chaired many 23 of those committees. 24 Q. Approximately how many professional 25 organizations and associations do you hold membership ESQUIRE REPORTING COMPANY INC.

1022 1 2 Q. What degree did you attain? 3 A. Bachelor of Arts. 4 Q. Following your receipt of a Bachelor of 5 Arts degree from the University of Alabama, what did 6 you do? 7 A. I was admitted to medical school at the 8 medical college of Alabama and attended two years at 9 that medical school. 10 Q. What happened at the end of two years? 11 A. I transferred to Cornell University 12 Medical School in New York City as the medical 13 college of Alabama did not teach the last two years 14 at that time. 15 Q. Was your medical schooling interrupted in 16 any way by the military? 17 A. Yes. I had some service in between 18 semesters and between classes and was enrolled in the 19 ASTP training program at that time. 20 Q. What type of training program was that? 21 -A. That is an Army specialized Army training 22 program and remained in the service or reserve or one 23 other form until 1953, off and on. 24 Q. Dr. LeMaistre, what year did you finish 25 your medical degree, did you actually attain it? ESQUIRE REPORTING COMPANY INC.

1030 1 2 LeMaistre, who was the Surgeon General at the time 3 this committee was appointed? 4 A. The Surgeon General was Dr. Luther Terry. 5 Q. I want to call your attention back to the 6 time the committee was actually formed. Did I 7 understand you to say the report was issued in 1964? 8 A. Yes, sir, that is correct. 9 Q. When was the committee formed? 10 A. In 1962. 11 Q. Who was the president of the United 12 States at that time? 13 A. John F. Kennedy. 14 Q. Was the work of this committee approved 15 and encouraged by President Kennedy? 16 A. President Kennedy was not visible in the 17 appointment of the members of the committee, but as I 18 recall in a press statement prior to the time that we 19 were underway fully, President Kennedy indicated his 20 sanction of the committee. It is my understanding 21 that irt was discussed with the president and had his 22 approval and that information comes to me directly 23 from Surgeon General Terry. 24 Q. Dr. LeMaistre, I want to develop briefly 25 the background of the advisory committee. Would you ESQUIRE REPORTING COMPANY INC.

1031 1 2 explain to the jury what occurred in the public 3 health organizations of the United States in the 4 early 1960s that resulted in this committee being 5 appointed? 6 A. Yes, sir. There were a number of studies 7 that had been done in the 1950s that showed a great 8 deal of new information coming to bear on the 9 question of smoking and health. And the American 10 Cancer Society, the American Heart Association, as I 11 recall, the American Lung Association and the 12 association for -- National Association for Public 13 Health joined together to make a request of Surgeon 14 General Terry that there be a new and complete study 15 of all of the available information. 16 That was discussed and approved and I 17 believe the Tobacco Research Institute or the Tobacco 18 council was contacted and I am told that those who 19 were nominated were screened by all of the parties 20 not to have exhibited bias on the subject and those 21 of us who had apparently not exhibited bias were 22 eligible for appointment to the committee. 23 Q. What do you mean when you say those of us 24 who had not exhibited bias were eligible for 25 appointment. What do you mean by bias? ESQUIRE REPORTING COMPANY INC.

1013 1 2 HORTON V. AMERICAN TOBACCO CO. TRIAL 3 AFTERNOON SESSION 4 January 12, 1988 5 1:25 p.m. 6 MR. WILLIAMS: Judge, we need to see you 7 in chambers. 8 (Conference with the Judge.) 9 MR. WILLIAMS: Let the record show that 10 we are in chambers and we will be discussing with the 11 Court the exhibits that were introduced yesterday 12 here in the deposition of Dr. Billy Ray Ballard. 13 They carry the numbers 42, 43, 44, 45 and 46. 14 Your Honor, although we didn't realize it 15 yesterday when these were introduced, I think Mr. 16 Davis and Mr. Barrett will agree with me that none of 17 these photographs that I have just referred to were 18 ever produced to us in the plaintiffs' exhibits which 19 were produced on a given date a week or two before 20 trial. 21 -- We have outstanding document requests and 22 they have agreed on numerous occasions to produce to 23 us any photographs, blowups, slides, things of that 24 nature that would be used at trial. We think the 25 introduction of this evidence in violation of that ESQUIRE REPORTING COMPANY INC.

1021 1 2 THE COURT: We should have 15. 3 DIRECT EXAMINATION 4 BY MR. D. DAVIS: 5 Q. Would you state your name for the record, 6 please? 7 A. Yes. Charles A. LeMaistre. 8 Q. Would you speak out, Dr. LeMaistre, so 9 everyone on the jury can hear your testimony? 10 A. Yes. 11 Q. Where do you reside? 12 A. Houston, Texas. 13 Q. What age man are you? 14 A. 63. 15 Q. Are are married? 16 A. Yes. 17 Q. Have children? 18 A. Yes. 19 Q. What is your occupation? 20 A. I am a physician administrator. 21 --Q. Dr. LeMaistre, let's go back to your 22 undergraduate school. Where did you obtain your 23 undergraduate degree? 24 A. I attended the University of Alabama in 25 Tuscaloosa, Alabama in 1943. ESQUIRE REPORTING COMPANY INC.

1036 1 2 experiment, if it was an experiment, to be sure that 3 all of those things were without any flaw as best we 4 could tell. That was our first criteria. 5 And the second criteria, as it is 6 enumerated here under the criteria for judgment dealt 7 with the interpretations that were contained within 8 those reports. And what we looked at there was to 9 look at the logic and the justification and use 10 common sense to try to determine whether this was 11 something that we could rely upon and what we would 12 bring to our other colleagues for discussion. 13 A third kind of judgment that we will 14 come to, I am sure, is how we arrived at our 15 conclusions and we did set some criteria for those 16 judgments for the committee at that time. Those were 17 the three major categories. 18 Q. Let's go that,the criteria that you used 19 for causal significance, Doctor. Would you explain 20 to the jury the very specific and detailed criteria 21 that the committee or the Surgeon General adopted? 22 A. First, if I may, yes, I would like to 23 tell the Court that the preponderance of evidence at 24 that time that was new, not necessarily the 25 preponderance of evidence, but the evidence that most ESQUIRE REPORTING COMPANY INC.

1020 1 2 is needed, please contact me." Dr. Johnny B. Bills. 3 i will therefore -- I have released Mr. 4 Russell. I will therefore replace him by alternate 5 number 1, Mrs. Thomas B. Gantt. 6 MR. D. DAVIS: No objection. 7 THE COURT: Mr. Clerk, please file that 8 and put it in the Court file. 9 MR. UPSHAW: Judge, we want to put into 10 the record, before the jury comes back in, as the 11 Court knows we have heretofore challenged Ms. Gantt 12 and we do object to this change. 13 THE COURT: The objection is overruled. 14 You may bring the jury in. 15 Bring your next witness up. 16 MR. D. DAVIS: Do you want me to call him 17 before they come in. 18 THE COURT: Yes. 19 MR. D. DAVIS: Your Honor, we call at 20 this time Dr. Charles LeMaistre. 21 C H A_H L E S L e M A I S T R E, called as a 22 witness, having been first duly sworn by the 23 Court, was examined and testified as follows: 24 MR. D. DAVIS: We are right now, aren't 25 we, on our jury count. ESQUIRE REPORTING COMPANY INC.

1039 1 2 meant that whatever we were suspecting as a cause, 3 had to proceed or be in a timely fashion to the 4 occurrence of that disease, and this is important in 5 this particular instance because, for a very long 6 period of time, it was not appreciated how long it 7 took for carcinoma of the lung to development the 8 fact that it took more than a decade and could take 9 as long as a decade and a half to two decades of for 10 the maximum production of lung cancer after a heavy 11 smoking of cigarettes misled a lot of people back in 12 the 1940s and 1950s but that association on a 13 temporal relationship, a time base, time and time 14 again was established and has been reaffirmed 15 consistently. 16 And then the last one, of course, would 17 have to deal with what is called coherence of the 18 association, and basically this means that there are 19 no significant findings that would overturn the 20 association and none were found in any of the areas 21 which 4ee concluded in the chapters of this book. 22 Q. Dr. LeMaistre, for how many months did 23 the work of the advisory committee to the Surgeon 24 General continue? 25 A. As I recall, it was about a year and a ESQUIRE REPORTING COMPANY INC.

1041 1 2 representatives of the tobacco industry during the 3 course of the preparation of this report? 4 A. No, sir, we did not. 5 Q. Did the committee allow anyone other than 6 committee members to sit in on the key decisions that 7 were made? 8 A. No, sir. 9 Q. Was it restricted to members of the 10 committee? 11 A. On the decision making process? 12 Q. Yes, sir. 13 A. Yes. The staff to the committee was in 14 the room, but they were not involved in the decision 15 making process. 16 Q. Did the committee receive for 17 consideration information supplied by the Tobacco 18 Institute? 19 A. The request was made, and I happened to 20 have made the request specifically to the chairman at 21 one time to invite testimony from the tobacco 22 industries and from the Tobacco Institute. 23 It is my understanding that we did not 24 get that particular form of cooperates, if you will, 25 and that they chose, I believe, to submit information ESQUIRE REPORTING COMPANY INC.

1049 1 2 by the medical profession or the scientific body that 3 would disprove that relationship. 4 Q. Dr. LeMaistre, yesterday before you were 5 here Dr. La Salle Leffall was on the witness stand, 6 and I want to show you, sir, a book which he was 7 handed entitled, Encyclopedia America. 8 MR. UPSHAW: Americana. Q. Encyclopedia Americana, and I want to 10 refer you, Doctor, if you would take the book, I want 11 to refer you to page 70. Would you turn to page 70 12 of that book, please. 13 A. Yes, sir, I have it. 14 Q. Were you the original author of that 15 chapter? 16 A. Yes, sir. 17 Q. In approximately what year did you submit 18 that to the Encyclopedia Americana? 19 A. The original copy. 20 Q. The original copy? 21 -A. Best recollection I have is in the late 22 1970s. 23 Q. Doctor, was this prior to the time that 24 adenocarcinoma had been causally linked to smoking? 25 A. At the time of the original article, ESQUIRE REPORTING COMPANY INC.

1038 1 2 once. It occurred repeatedly in cigarette smokers 3 and that lung cancer appeared as a consequence in 4 those particular people whether a direct causal 5 relationship at that time was known but nonetheless, 6 the repetitive appearance or consistency of it was 7 one thing that we used to measure. 8 Q. What were some of the others, Dr. 9 LeMaistre? 10 A. The strength of the association and it 11 comes out in this particular instance, it was between 12 10 and 12 times, and epidemiologic terms, that is 13 very strong. That is a multiple of 10 to 12 times 14 greater risk for the smoker than the nonsmoker. 15 Then the next one would be the 16 specificity, could the carcinoma, for instance, in 17 question be reproduced by the agent at the same 18 site? In other words, if it was agent X, did it 19 produce a carcinoma here one time and a carcinoma 20 there the next. 21 - The way cigarette smoking, we saw 22 reproducible carcinomas in specific areas, lung 23 cancer and bladder cancer and esophageal cancer and 24 throat cancer, time and time again the evidence 25 showed that. Then the temporal relationship, that ESQUIRE REPORTING COMPANY INC.

1046 1 2 Q. Does this show in the forward here that 3 the fact that you were one of the members of that 4 committee? 5 A. It does show that I served two years in 6 that capacity. 7 Q. What were those years? 8 A. 1964 to 1966. 9 Q. For how many years did this study 10 continue? 11 A. It is my impression that the study 12 continued at least through 1969, at least I am 13 familiar with a report from this group of which I was 14 no longer a member that confirmed all of the 1964 15 Surgeon General's findings. 16 Q. I wanted to ask you, sir, when this was 17 published, did it in any way alter any of the 18 conclusions that had been reached by the advisory 19 committee to the Surgeon General? 20 A. No, sir. I am not aware of any 21 signif-icant conclusions or any others that it 22 23 24 25 altered. Q. Did it in any way alter the conclusion that cigarette smoking causes lung cancer? Ln m A. No, sir. `' 00 m m w N ESQUIRE REPORTING COMPANY INC. ~

1050 1 2 adenocarcinoma was still predominantly confined to 3 women and we were not certain of the relationship on 4 a causal base at that time. 5 I will call to your attention that one of 6 the confusing factors was that women had taken up 7 cigarette smoking a number of years after men 8 unfortunately engaged in the experiment. 9 As a consequence, the evidence was not 10 unshakeable and we did refer to it in this, but I 11 don't think we concluded any direct association. 12 Q. Doctor, I want you to turn to page 72? 13 A. All right, sir. 14 Q. I will ask you to look over in the area 15 that has been highlighted, and I will ask you, sir, 16 when was that document resubmitted to the 17 encyclopedia for publication? 18 A. The most recent? 19 Q. Yes. 20 A. This was submitted in late 1986, and was 21 published, as I recall, in 19 -- mid-1987, or so. '1% 44 Q. Was there any error called to the 23 attention of*the Encyclopedia Americana after that 24 book was published? 25 A. Yes, there was. ESQUIRE REPORTING COMPANY INC.

1057 1 2 compilation. 3 MR. UPSHAW: So stipulated. 4 Q. Doctor, I want to ask you, is there any 5 carcinogen that The American Tobacco Company has 6 added to non-filtered Pall Mall cigarettes during 7 this period of time? 8 A. When I looked at this list I spotted two 9 substances that I wanted to 10 MR. BLACKMON: Your Honor, may we 11 approach the bench, please? 12 THE COURT: Yes. 13 MR. BLACKMON: This testimony before -- 14 here it is. This is not -- 15 MR. WILLIAMS: He was not qualified -- 16 MR. D. DAVIS: He is stating his basis 17 why this cigarette causes lung cancer and this is 18 included in his basis. You had every right to 19 question him about it and you didn't. You didn't ask 20 him for it. This man is entitled. 21 - MR. BLACKMON: We relied on this. 22 THE COURT: What is this? The answer to 23 the 26-B? 24 MR. D. DAVIS: That they took a whole 25 day's deposition. ESQUIRE REPORTING COMPANY INC.

1027 1 2 in? 3 A. I really am knot certain at the moment. 4 I looked at them just as I was sitting there and 5 there are two pages full of them in my curriculum 6 vitae which I have here, if you wish, but I can't 7 give you an accurate count. Let's say more than 20. 8 Q. Do you hold membership in the American 9 Medical Association? 10 A. Yes, sir, I do. 11 Q. How about the Georgia Trudeau Society? 12 A. I am no longer active in the Georgia 13 Trudeau Society. I still have my license to practice 14 in Georgia and Texas and am a member of the Texas 15 Medical Association. 16 Q. Doctor, in the AMA, is there a committee 17 known as the educational research foundation 18 committee on research on tobacco and health? 19 A. There was, yes, sir. 20 Q. Did you serve as a member of that 21 committee for a period of time? 22 A. Yes. As I recall, beginning in 1966 or 23 1967, I was requested to join that committee and 24 served for a two year period on that committee. 25 Q. Have you also been a member of the ESQUIRE REPORTING COMPANY INC.

1048 1 2 smoke from other people, I would cite their report in 3 the early 1980s showing that adenocarcinoma had risen 4 to great heights and was the most prevalent one and 5 that was an incremental decision and only ending in 6 the 1980s were we able to agree that that information 7 was final and very conclusive from a number of 8 scientific publications that are referred to as it 9 came along in each of these reports. 10 But the important thing, I think, in 11 answering your question is that I know of nothing 12 that any of those reports have overturned of major 13 significance in the original Surgeon General's 14 report. 15 Q. Doctor, are you aware of any 16 authoritative scientific study that has been 17 conducted in the past 15 or 20 years that has 18 established that cigarette smoking does not cause 19 lung cancer? 20 A. I would have to indicate that my answer 21 would be based upon, I know of no publication that 22 has scientific credibility, that has done so. I know 23 of many authoritarian statements to the contrary, but 24 I do not think they offer proof that is accepted, so 25 the answer is, I know of none that have been accepted ESQUIRE REPORTING COMPANY INC.

1028 1 2 Council of Southern Universities? 3 A. Yes, sir, I have. 4 Q. Have you also served on the United Negro 5 College Development Fund? 6 A. Yes, sir, I have. 7 Q. Have you also served as a board of 8 director for any black colleges in the South? 9 A. Yes. Stillman College, in Tuscaloosa 10 Alabama. 11 Q. Have you held any offices in the American 12 Cancer Society? 13 A. Yes, sir, I have held the presidency of 14 that cancer society and all of the offices leading to 15 that office. I was president over one year ago in 16 the 1986 year. 17 Q. Doctor, can you give us an estimate of 18 the number of publications that you have either 19 authored or coauthored that have been published in 20 scientific medical literature in the United States? 21 --A. Of peer review journals I would say more 22 than 20 and in other articles and publications, 23 probably an additional like number or more. 24 Q. Dr. LeMaistre, would you tell us, please, 25 what is the office of the Surgeon General of the ESQUIRE REPORTING COMPANY INC.

1029 1 2 United States? 3 A. The office of the Surgeon General is that 4 entity that is created within the government in which 5 the Surgeon General serves and the Surgeon General 6 serves as the highest appointed post with regard to 7 the health of the nation. 8 Q. Doctor, have you ever been asked to 9 assist and serve the Surgeon General of the United 10 States? 11 A. Yes, sir, on many occasions. 12 Q. Dr. LeMaistre, I want to show you a book 13 entitled, smoking and health report of the advisory 14 committee to the Surgeon General of the Public Health 15 Service. Can you identify that document for us, 16 please? 17 A. Yes. This is the report of the Surgeon 18 General's advisory committee on smoking and health 19 that was issued in 1964 on January 11, 1964. 20 Q. Dr. LeMaistre, were you a member of that 21 -original advisory committee to the Surgeon General? 22 A. Yes, sir, I was one of 10 members of that 23 advisory committee. 24 Q. Would you tell us, and feel free to refer 25 to that to refresh your memory if you need, Dr. ESQUIRE REPORTING COMPANY INC.

1051 1 2 Q. Who called it to their attention? 3 A. I did. 4 Q. What error did you call to their 5 attention? 6 A. We pointed out that in the processing of 7 the updating of this article, and let me explain that 8 the book is not totally republished each year, but 9 they will pick an article when they think'it is time 10 to update that article, so this, I believe, was our 11 second time to update it, and we went through this 12 and spotted the fact that the -- the original 13 sentence in here did not include the most recent 14 information on adenocarcinoma, and my co-author, Mary 15 Jane Schier and I decided that it needed changing, 16 indeed proposed a change but that did not get into 17 the manuscript through a typographical error that 18 occurred either in my office or in the publication. 19 As a consequence, when we saw this and 20 reading this we had notified them of the need to 21 caution anyone who inquiries about this that this 22 does not fit the data much of which I cited in my 23 deposition, that actually shows the prevalence of 24 adenocarcinoma as a cause of cigarette smoking -- 25 caused by cigarette smoking. ESQUIRE REPORTING COMPANY INC.

1062 1 2 1950 and removed in 1980. 3 MR. D. DAVIS: We pass the witness, your 4 Honor. 5 THE COURT: You may cross-examine, Mr. 6 Upshaw. 7 The court reporters are under some stress 8 here with these expert witnesses and I am taking 9 recesses a little more often. Let's take about ten 10 minutes and give them a rest. 11 MR. UPSHAW: She is not under as much 12 stress as I am, Judge. 13 THE COURT: Mr. Upshaw, I wanted to give 14 you a rest, too. 15 MR. UPSHAW: All right, sir. 16 THE COURT: Mr. Upshaw, we are trying to 17 get some cross ventilation here. I hope it works. 18 MR. UPSHAW: I appreciate it. My glasses 19 have been fogging up. 20 THE COURT: Bring in the jury. Let's get 21 through and adjourn for the day. 22 All right. Mr. Upshaw. Let's proceed. 23 CROSS-EXAMINATION 24 BY MR. UPSHAW: 25 Q. Dr. LeMaistre, you will recall that I ESQUIRE REPORTING COMPANY INC.

1056 1 2 ingredients added to Pall Mall non-filtered 3 cigarettes by The American Tobacco Company? 4 MR. BLACKMON: Your Honor, may we see 5 th t? a 6 THE COURT: Let them see it. 7 MR. D. DAVIS: We are not going to offer 8 it. We are going to talk about one specific thing. 9 MR. UPSHAW: Let's see what it is, Don. 10 Judge, I object to him calling it secret 11 ingredients and merely call it what it is. They are 12 trade secrets. Just like Coca-Cola has trade 13 secrets. 14 MR. D. DAVIS: Let's call it trade 15 secrets that were produced by order of this Court. 16 Q. Does that show the list of ingredients 17 which The American Tobacco Company has added to 18 non-filtered Pall Mall cigarettes from 1950 through 19 1983? 20 A. Yes, sir, that is what the title of this 21 paper i$ and it shows the year in which ingredients 22 are said to have been added. 23 MR. D. DAVIS: I think we can stipulate 24 that this was produced as a result of court order and 25 this is in fact an American Tobacco Company ESQUIRE REPORTING COMPANY INC.

1 1032 2 A. I am not sure I can tell you exactly what 3 bias was considered in that that selection preceded 4 my appointment. But I would assume the fact that I 5 had not written or spoken publicly to a position for 6 or against any part of the issue which allowed me to 7 be considered for the committee. 8 I assume there are others who were 9 excluded because of the nature of some of the 10 publications with which I am now intimately familiar, 11 and which they took very strong positions such as Dr. 12 Alton Oxner of New Orleans, Dr. Ebart Graham of St. 13 Louis who were two of the early medical contributors 14 making the clinical association between smoking and 15 lung cancer. 16 Q. Those type of people were excluded? 17 A. I am not sure that either of those two 18 were considered but those type, yes, were excluded. 19 That is my impression. 20 Q. Doctor, in the forward to the 1964 21 report, does it specifically acknowledge that the 22 Tobacco Institute had a veto power or the power to 23 block an appointment if they desired, as did any of 24 the major groups that contributed to the selection of 25 the committee; is that your recollection? ESQUIRE REPORTING COMPANY INC.

1033 1 2 A. Well, if I may refer to the exact 3 wording, I believe that it says here, on July 24, 4 1962, the Surgeon General met with representatives of 5 the American Cancer Society, the American College of 6 Chest Physicians, the American Heart Association, the 7 American Medical Association, the Tobacco Institute, 8 the Food & Drug Administration, the National 9 Tuberculosis Federation, the Federal Trade Commission 10 and the President's Office of Science and 11 Technology. 12 And at that meeting they agreed to the 13 format and I am assuming that is the same group that 14 must have had in some influence on the eligibility of 15 candidates. 16 Q. When were you officially notified, if you 17 recall, of your appointment? 18 A. It was in the spring or early summer of 19 1962. 20 Q. Dr. LeMaistre, when the committee was 21 formed in 1962, were you allowed as a committee to do 22 any new research? 23 A. No, sir. That was one of the 24 conditions. We were told that our job was to review 25 the exist finishing evidence and not engage in any ESQUIRE REPORTING COMPANY INC.

1034 1 2 new research and not try to create new facts. It was 3 to deal with the facts as they had been reported in 4 the literature. And I might point out, although that 5 may seem that that would go back for a long period of 6 time, in the world's literature prior to 1900 there 7 were only 100 cases of lung cancer reported. So it 8 really, in effect, meant from 1900 to that date of 9 1962. 10 Q. Can you give us an estimate of the total 11 number of research papers that were actually reviewed 12 by the committee? 13 A. Those are estimated in here as the ones 14 that were brought into consideration. We used 15 annotated monographs, some of which have been'derived 16 from 6,000 articles that had been published, so we 17 dealt with all that was readily available to us at 18 the time. 19 We did not stay with just the summaries 20 prepared by others but met within the Nationl Library 21 of Medicine on level C for approximately a year and a 22 half in which time we had free access to all that our 23 National Library of Medicine holds in terms of 24 publication. 25 So those of us given specific assignments ESQUIRE REPORTING COMPANY INC.

1042 1 2 through other channels, so the contact of the nine, 3 the 10 members of the Surgeon General's committee 4 with the tobacco companies and the Tobacco Institute 5 was minimal. They were present, however, at our 6 those public sessions that we held. 7 Q. At the public sessions? 8 A. Yes. 9 Q. Dr. LeMaistre, was the published 10 information that was available to the committee 11 during its deliberations, was that information 12 available to the Tobacco Institute? 13 A. Yes, it was from the world's literature. 14 The only thing that might be excepted from that, if 15 we had a physician's paper that was being developed 16 for the Surgeon General's advisory committee, until 17 it was considered, adopted or rejected, it was not 18 available to anyone else. 19 Q. Dr. LeMaistre, when the Surgeon General's 20 report was published, what conclusion was reached by 21 the advisory committee concerning the relationship 22 between cigarette smoking and lung cancer? 23 A. The conclusion of the committee was that 24 there was a causal relationship between cigarette 25 smoking and lung cancer. ESQUIRE REPORTING COMPANY INC.

1054 1 2 largest cancer centers in this country, and so I 3 chose the other two from Roswell Park Memorial 4 Hospital in Buffalo, New York and Memorial Sloan 5 Kettering Hospital in New York City, both of whom 6 have been in the business of cancer since before the 7 turn of the century, so that those were the way that 8 I expanded on it and, in addition to that, I pointed 9 out that 89 percent of patients with adenocarcinomas 10 are identified as cigarette smokers. That is about 11 the extent of the material that is here. 12 Q. Thank you, sir. 13 Doctor, based upon your education, 14 training and experience in the scientific evidence 15 available to you, would you tell the jury what your 16 opinion is as to whether or not cigarette smoking 17 causes adenocarcinoma of the lung? 18 A. I would say that the evidence is solid 19 and unequivocal that it is the preponderant cause of 20 adenocarcinoma of the lung. 21 V. Doctor, in your opinion, was Nathan 22 Horton's adenocarcinoma of the lung caused by 23 cigarette smoking? 24 A. If the Court pleases, I have only read 25 the autopsy data. I did see Dr. Marcus Key's ESQUIRE REPORTING COMPANY INC.

1059 1 2 is going to deal with some, crystal clear hearsay 3 now. Just wait a minute Dr. LeMaistre. He says it 4 piqued his curiousity. He didn't understand it. 5 THE COURT: Mr. Upshaw, I got it 6 sustained. 7 MR. UPSHAW: If you will, tell him to get 8 off that and move on. 9 Q. Dr. LeMaistre, without regard to any 10 conversations you had with Deitrich Hoffmann or 11 anyone else, in your opinion, are there carcinogens 12 which were added by The American Tobacco Company to 13 Pall Mall cigarettes? 14 MR. BLACKMON: Your Honor, you have 15 sustained that objection. 16 THE COURT: No, sir, I did not sustain 17 that objection. 18 MR. BLACKMON: What he did, he started 19 his answer and his answer was going to be stating 20 that he relied on someone else's advice to him. Now 21 he is -about to give his own conclusi-on based on 22 that. 23 THE COURT: Let me ask counsel for 24 defense if an expert of Dr. LeMaistre's character 25 doesn't thoudsands of times base his opinion on work ESQUIRE REPORTING COMPANY INC.

1 1052 2 Q. I wanted to ask you about your 3 deposition. They were questioning Dr. Leffall as 4 though it was your opinion as he sat there yesterday, 5 that adenocarcinoma was not included. I will ask 6 you, at the time your deposition was taken, did you 7 specifically tell The American Tobacco lawyers that 8 adenocarcinoma was in fact caused by smoking? 9 A. Well, I have before me here the 10 deposition which you have just handed to me that 11 deals with what I said. 12 Q. Would you read to the jury what you told 13 them when they took your deposition a couple of 14 months ago? 15 A. If Mr. Upshaw will confirm this, this was 16 at a time when Mr. Upshaw and I were discussing 17 completeness and he asked me if my interrogatory 18 statements were complete, and I said, they could be 19 more complete, they are confined to two pages and on 20 some of these things you can write a book or 21 somethIng to that effect, and so we were engaged in 22 that discussion and, as I recall, he authorized me to 23 go ahead with an expansion on a topic. 24 It just so happens that I chose this one 25 and the answer to the question, it says, all right, ESQUIRE REPORTING COMPANY INC.

1063 1 2 took your deposition in your office at M.D. Anderson 3 out in Houston one afternoon a couple months ago. We 4 didn't complete it and you were gracious enough to 5 let us finish it the next morning if we got there at 6 6:00 a.m. 7 A. Yes, sir, I made that offer. 8 9 10 11 12 13 14 Q. finish it A. first day Q. times you testified And I was there at 6:00 a.m. and we did up the next day; is that correct? My recollection is we extended it the ad infinitim to get most of the work done. You want to speak about ad infintim. At were on direct examination and you for 55 minutes, does that sound 15 approximately the correct length of time for you?- 16 You started at 1:35 and you ended at 2:30? 17 THE COURT: Mr. Upshaw, this may be 18 interesting to you. I don't think this is 19 necessary. Let's -- 20 MR. UPSHAW: I think this is interesting. 21 THE COURT: No, sir. I won't permit 22 that. You may proceed with your questioning. 23 MR. UPSHAW: Is the Court not going to 24 allow me to ask him did he not spend 45 of his 55 25 minutes not talking about Nathan Henry Horton. ESQUIRE REPORTING COMPANY INC.

1040 1 2 half of active meetings. I can't give you the exact 3 number of months. 4 Q. Doctor, did you call before you specific 5 scientists to report the specific findings they had 6 made in addition to reading reports that were 7 published? 8 A. Yes, sir, we were provided the complete 9 freedom to pick our own scientists and we did so and 10 we were also allowed to recommend the commissioning 11 of physician papers by scientists or groups of 12 scientists on any topic that we wished to have 13 developed for the committee and we did so. 14 Q. Can you give us an estimate of the total 15 number of consultants that the committee used during 16 this process? 17 A. I would believe there are about 150 to 18 155 major consultants. 19 Q. Are these consultants that were 20 recognized as authoritative in the field of smoking 21 and health in the research they were doing? 22 A. Yes, sir, they were, and they were,on 23 both sides of the question and they are listed in the 24 publications here, I believe. 25 Q. Did you work, did the committee work with ESQUIRE REPORTING COMPANY INC.

1066 1 2 ten advisory members including you? 3 A. Thank you, sir. 4 Q. When we took that deposition out there we 5 asked you such things as about who contributed to 6 this report, and I was interested in your testimony a 7 moment ago when you said you didn't get much 8 cooperation from the tobacco industry or what you 9 saw, and as a matter of fact, their cooperation with 10 the Surgeon General's advisory committee resulting in 11 the 1964 report was minimal; is that correct? 12 A. May I answer specifically that I said 13 that I asked that they be invited to testify before 14 the ten member committee and to my recollection they 15 did not do that. 16 Q. All right, sir. 17 Let me ask you, you read from the forward 18 of the report which is the little page, one single 19 page and I have the report here.. Do you have a hard 20 back copy. I have a soft back copy. It is the same 21 reporr isn't it, sir? 22 A. Yes, sir, the same report. 23 Q. You read from the forward. The next 24 thing behind that the table of contents? 25 A. That is correct. ESQUIRE REPORTING COMPANY INC.

1064 1 2 THE COURT: No. I will not. You may 3 proceed to ask your question. 4 MR. UPSHAW: The only way I know how to 5 do it is my way. 6 THE COURT: You are unfortunately saddled 7 with me. 8 MR. UPSHAW: I object to these people 9 continuing to laugh in the courtroom and I would ask 10 the Court for the next who laughs to put him out of 11 here. This is a serious matter. 12 THE COURT: I understand that. 13 Q. I suggest to you that you testified for 14 45 minutes about what you have done, what the Surgeon 15 General has done, what the Surgeon General's advisory 16 committee has done, what other committees you have 17 served on have done, and it wasn't until about eight 18 minutes before the end of your testimony that the 19 name Nathan Henry Horton was even mentioned, do you 20 deny that that is what happened a moment ago? 21 -A. No, sir. If you say so I will accept 22 that. 23 Q. As a matter of fact, you know relatively 24 little, if anything, about Mr. Horton other than what 25 Mr. Davis has told you and the autopsy reports you ESQUIRE REPORTING COMPANY INC.

1068 1 2 apologies to any individual inadvertently owe mighted 3 the substantial cooperation and assistance of the 4 following; is that correct? 5 A. That is correct, sir. 6 Q. You start off thanking a man named Mr. 7 Ackerman and you end up thanking a man named Dr. 8 Zukel. You go from A to Z? 9 A. Yes, sir, that is correct. 10 Q. And there is acknowledgement of 11 appreciation and gratification to the American Cancer 12 Society? 13 A. That is right. 14 Q. Immediately thereunder you express your 15 gratitude to The American Tobacco Company for their 16 help, don't you? 17 A. Yes, sir, that is right. 18 Q. That is us. You know that, don't you? 19 A. Yes, sir, I do. 20 Q. Dr. LeMaistre, for almost 20 years, if I 21 understand your testimony correctly, and I believe 22 you said that you consider yourself a physician 23 administrator; is that correct, sir? 24 A. That is correct, sir. 25 Q. Correct me if I am incorrect but for the ESQUIRE REPORTING COMPANY INC.

1047 1 2 Q. Doctor, over the past 27, 28 years since 3 the original Surgeon General's report has been 4 issued, have there been other Surgeon General reports 5 which have been issued in this country? 6 A. Yes, sir, there have been Surgeon 7 General's reports that have incrementally added to 8 the information available in a compiled form on 9 different topics issued at about every other year 10 since 1964. 11 Q. Doctor, have each of the Surgeon 12 General's reports reconfirmed that smoking causes 13 lung cancer? 14 A. I would answer the question a little 15 differently. I can't answer it as you have asked it. 16 Q. I am sorry. 17 A. Because I do not know that each of them 18 has done that. I am not that familiar at this moment 19 with all of the conclusions. I would say that each 20 of them has been either consistent with it and in the 21 beginntng confirmed and extended the observations of 22 the 1964 and, indeed, materially added to the 23 information that was not available at the time. 24 I would cite particularly the passing 25 smokers, the dangers derived from the dangers of ESQUIRE REPORTING COMPANY INC.

1035 1 2 could pursue to any extent we wished, any information 3 that was in the printed literature. 4 Q. Dr. LeMaistre, what was your specific 5 assignment for the Surgeon General's -- 6 A. Because of my background having been 7 primarily in the studies of pulmonary disease I was 8 assigned to that area now known as Chapter 10 in this 9 group that dealt with the non-neoplastic, the 10 non-cancer diseases of the lung. 11 Emphysema and bronchitis turned out to be 12 the areas in which we focused the most attention. 13 Q. Doctor, did the committee develop 14 criteria for judgment which you used in passing on 15 these specific research papers that you were 16 examining? 17 A. Yes, sir, we had to do this in that there 18 was no prescribed papers that had been screened for 19 us and we had to set up some criteria for what we 20 would accept as a valid paper for all of us in our 21 different sections so we looked at the validity of 22 the report itself, where it was done, the 23 investigator to see if the person doing the 24 investigation held any bias and the setting in which 25 it was done to be sure that -- and the design of the ESQUIRE REPORTING COMPANY INC.

1055 1 2 deposition, I believe, or something along that line, 3 so I have very limited information about the actual 4 case and did not see Mr. Horton at any time nor 5 participate in any of the tests that were done at the 6 M.D. Anderson Hospital, but reading the data as is 7 reflected in the history and physical examination and 8 the autopsy findings, all of the data that 9 pathologists normally put together, and in the report 10 I believe signed by Dr. Smith, do I have the right 11 name? 12 A. That is correct. 13 Q. Dr. Smith, it is as classic a case as I 14 have seen of an outcome from adenocarcinoma, clearly 15 the cause of death in this patient, associated very 16 clearly with 60 pack years of smoking and I agree 17 unequivocally with the opinion of the pathologist, it 18 is the last statement that says, that he believes 19 that the cause of the adenocarcinoma is cigarette 20 smoking. 21 4• Dr. LeMaistre, at my request have you 22 looked at what I am handing you at this time, prior 23 to me just giving it to you? 24 A. Yes, sir, I saw that first this morning. 25 Q. Doctor, is that a list of the secret ESQUIRE REPORTING COMPANY INC.

1037 1 2 people were concerned about was that referred to by 3 Dr. Key this morning, the epidemiologic study. 4 However, we did not confine ourselves to 5 epidemiologic studies. We did look at those in that 6 they were the most recent ones to be assessed and, 7 therefore, the criteria that we used for judgment did 8 have.direct bearing upon the nature of the data we 9 wanted to look at. 10 We were looking at trying not to get 11 misled by statistical association. We didn't think 12 that they would give us the proof of a causal 13 relationship, if any existed, but what we were 14 looking for was to try to get criteria that would 15 give us a judgment, that would go beyond mere 16 statistical probability that something was happening, 17 and in that, Dr. Key this morning, I think, 18 elucidated the fundamental points but we looked at 19 the five basic areas no one of which standing alone 20 was necessary to satisfy us. Of them had to be 21 satisfied. He mentioned this morning the consistency 22 of the association between two facts. Well, let me 23 explain that. 24 I will take cigarettes and lung cancer. 25 The consistency of it means it just didn't occur ESQUIRE REPORTING COMPANY INC.

1 2 Q. Immediately following that or 1067 3 acknowledgments; is that correct? 4 A. Yes, sir, that is right. 5 Q. Those are acknowledgments and there are 8 6 or 9 pages of them by either the Surgeon General or 7 the advisory committee including you in appreciation 8 appreciation for people who assisted you in the 9 promulgation and compilation of that report; isn't 10 that right? 11 A. Yes, sir. 12 This is a total list compiled by those in 13 the Surgeon General's office, the members of the 14 committee, the staff of the committee acknowledging 15 the input of the representatives of the tobacco 16 company and others to the overall thing. I said they 17 did not testify directly before the committee. 18 Q. Let me ask you this. I suggest to you, 19 sir, that the last paragraph of the opening part of 20 the acknowledgments says, and correct me if I am 21 incorr-bct, the committee and the committee would have 22 been the committee you were on; is that correct? 23 A. I would assume so, yes. 24 Q. The committee however does acknowledge 25 with gratitude and deep appreciation and with sincere ESQUIRE REPORTING COMPANY INC.

1044 1 2 identify it on a causal relationship to cigarette 3 smoking. 4 Q. What changes have occurred since 1964? 5 A. With regard to adenocarcinoma. 6 Q. With regard to adenocarcinoma, yes, sir. 7 A. There has been a rather impressive and 8 consistent rise in the percentage of cases of lung 9 cancer that are due to adenocarcinoma, so that it is 10 now the most common form of lung cancer associated 11 with cigarette smoking and is now considered as a 12 causal relationship by most of the people. 13 Q. Doctor, was emphysema included in the 14 1964 report as being caused by smoking? 15 A. Yes, sir, it was. 16 Q. In what way? 17 A. We had to declare that there was a causal 18 relationship between chronic bronchitis and cigarette 19 smoking, and an association with emphysema. We did 20 not think at that time that the association was 21 strong enough to merit a label of causality. 22 Q. Has the medical profession changed its 23 position as you are aware of it today with regard to 24 smoking and emphysema? 25 A. Most certainly. Over these past, more ESQUIRE REPORTING COMPANY INC.

1070 1 2 privileges of the staff, and I am a full professor of 3 medicine. 4 Q. It is impossible to be in a hospital with 5 400,000 people coming through it on an out-patient 6 basis a year and not see patients? 7 A. That is correct. 8 Q. Physically see them; is that correct? 9 A. That is correct. 10 Q. Am I not correct and haven't you told me 11 heretofore that you haven't seen patients as their 12 physician for ten years nor have you had total 13 patient responsibility for 20 years? 14 A. That is correct, sir. 15 Q. All right, sir. 'What is a board 16 certification in any particular specialty or field or 17 area of medicine, Dr. LeMaistre? 18 A. Board certification is granted to those 19 who submit to examination to prove their competence 20 in a given field. 21 ~. I believe your residency was in, what 22 what was it, internal medicine? 23 A. Yes, sir, that is correct. 24 Q. You have never been board certified in 25 any medical specialty? ESQUIRE REPORTING COMPANY INC.

1073 1 2 deposition; is that correct, sir? 3 A. I am trying to remember whether I read 4 that or not, but let me answer that I don't recall 5 reading it in deposition. I may have had it and been 6 acquainted with it but -- 7 Q. If you read it and don't recall it any 8 better then apparently there must not have been 9 anything in it that was so significant to you? 10 A. I would not have had great interest in 11 reading Dr. La Salle Leffall's deposition for the 12 simple reason that I respect Dr. La Salle Leffall. I 13 know him well have the highest regard and know that I 14 would agree with any statements he made. 15 Q. You didn't hear him testify. Do you sit 16 here and unequivocally say that you agree with any 17 statement he made on this stand? 18 A. I didn't say on this stand. I said any 19 statement made by Dr. La Salle Leffall. 20 Q. You asked me about the deposition? 21 -A. You have me out of my field. I do not 22 know the semantics you use in the courtroom as well 23 as I do medicine. I understand Dr. La Salle Leffall 24 and I agree with him most times. It is possible I 25 could agree with him but I -- I said I have not ESQUIRE REPORTING COMPANY INC.

1071 1 2 A. No, sir, I have never submitted to 3 examination. 4 Q. I didn't ask you whether you had ever 5 been examined, you have never been board certified? 6 A. No, sir, I am not. 7 Q. All right, sir. 8 Dr. LeMaistre, Mr. Davis over here, my 9 friend who is representing the plaintiffs,' asked you 10 to review Mr. Nathan Henry Horton's medical records, 11 that is correct, didn't he? 12 A. That is correct. 13 Q. You didn't review Mr. Horton's medical 14 records, did you, sir, other than the autopsy? 15 A. I reviewed only the autopsy data. 16 Q. As a matter of fact, sir, didn't you 17 testify that in effect, you didn't have time or you 18 were too busy to look at the Veterans Administration 19 charts, the x-rays, the depositions, the transcripts 20 of the videos, you just had time to read the autopsy 21 report; is that correct? 22 A. I was never asked to look at all of 23 those. I was asked if I would become involved in the 24 review of this case, and I indicated what you have 25 just established, that I did not think I was the best ESQUIRE REPORTING COMPANY INC.

1 1072 2 one to do that, I declined, it is true that I did not 3 have the time to do it but the major reason was that 4 is not what I am currently doing. 5 Q. You did not meet or see ever in his 6 lifetime Mr. Horton? 7 A. Not to my knowledge, no, sir. 8 Q. You heard your colleague and associate, 9 Dr. Marcus Key here testify that Mr. Horton actually 10 was flown to your medical center, was in the 11 University of Texas Medical Center, spent sometime 12 there but you didn't see him or meet with him at that 13 time; is that correct? 14 A. That is correct. 15 Q. You never laid eyes on him? 16 A. Not to my knowledge, no, sir. 17 Q. Dr. LeMaistre, you didn't take the 18 opportunity to read the transcript or look at the 19 videotapes of Mr. Horton, either, did you sir? 20 A. I don't believe they were ever offered to 21 me, sit. 22 Q. I believe there was one deposition offer 23 to you and that was the deposition of your colleague 24 and your friend, Dr. La Salle D. Leffall and I 25 believe you have eventually read Dr. Leffall's ESQUIRE REPORTING COMPANY INC.

1045 1 2 than two decades, the information available for a 3 judgment is so much greater than we had at that time 4 that the information on emphysema is now very 5 clearcut and it is declared to be causally related to 6 cigarette smoking. 7 Q. Doctor, you mentioned earlier that you 8 had served on the American Medical Association's 9 education and research foundation committee for 10 research on tobacco and health. I am going to show 11 you a book entitled, Tobacco and Health and I will 12 ask you, sir, can you identify that document? 13 A. Yes, sir. I have seen this document 14 before. It is compiled by the AMAERF committee for 15 research on tobacco and health and is a 1978 American 16 Medical Association publication. 17 Q. Dr. LeMaistre, would you tell the jury, 18 please, who financed this study? 19 A. The American Medical Association accepted 20 responsibility for it, and it lists here in their 21 publication the following contributors, American 22 Brands, Incorporated, Brown Williams Tobacco 23 Corporation, Liggett Group, Incorporated, Lorillard, 24 Phillip Morris, Incorporated, R.J. Reynolds Industry, 25 all of which I believe to be tobacco companies. ESQUIRE REPORTING COMPANY INC.

1043 1 2 Q. Dr. LeMaistre, is that different than 3 just a statistical association? 4 A. Yes, it is. 5 Q. In what way? 6 A. As we went through the procedure, the 7 criteria for causality, as it was spelled out at that 8 particular time, that consideration was based on 9 judgment. It included statistical information 10 derived from epidemiologic studies to be sure. But 11 it also included all of the pathological data, all of 12 the actual autopsy data, all of the animal data that 13 had been derived from animal experiments. 14 That would be absolutely necessary to 15 include all forms of information available at the 16 time if indeed the coherence part of the judgment was 17 to make sense. 18 Is there something in another area that 19 would overturn that basis of causality? We found 20 none in this particular instance. 21 -0. Dr. LeMaistre, back in 1964 when this 22 report was issued, was adenocarcinoma included within 23 the forms*of lung cancer that were caused by smoking? 24 A. It was included in the forms of lung 25 cancer, however, its prevalence was not sufficient to -ESQUIRE REPORTING COMPANY INC.

1083 1 2 Q. It seemed to me like I saw that book out 3 there? 4 A. I had this book and another book. It was 5 the soft copy like the one you have that is the 6 autographed copy. Just to be accurate. 7 Q. Was the autographed copy a hard back or 8 soft back? 9 A. Just like that soft back book sitting on 10 the table there. 11 Q. I apologize. I thought it was hard 12 back. 13 A. That is quite all right. 14 Q. Dr. LeMaistre, haven't you written and we 15 talked about that or you did on direct examination, 16 you either wrote or co-authored an article on smoking 17 and health that appeared in the 1987 Americana 18 Encyclopedia? 19 A. That is correct, yes. 20 Q. You didn't produce that to us out in 21 Texas, that was not produced to us out in Texas? 22 A. No. But it was called to Mr. Davis' 23 attention to be submitted to you. 24 Q. You didn't tell us about it. You told 25 Mr. Davis about it? ESQUIRE REPORTING COMPANY INC.

1 1084 2 A. That is right but the agreement was that 3 those documents that you asked me in the deposition 4 to supply all things that were considered pertinent, 5 we went back, if you recall that you asked me were 6 there notes that I had, I went back and I have 7 searched for all of those and I made Mr. Davis aware 8 of everything that I thought was necessary to comply 9 with the request. 10 Q. Well, we didn't ask you what you thought 11 was necessary. We specifically said in the request 12 for production what we wanted and what we were 13 entitled to and Mr. Davis told you we were entitled 14 to those reports and those documents and those 15 writings? 16 A. Yes, and to the best of my ability I have 17 produced it, sir. 18 Q. You didn't list it on your curriculum 19 vitae, either, did you sir? 20 A. It was not listed on that curriculum 21 vitae. I agreed to submit an updated curriculum 22 vitae that is in the possession of Mr. Davis and it 23 is listed there. 24 Q. I submit to you that Mr. Davis did not 25 call our attention to the Americana Encyclopedia ESQUIRE REPORTING COMPANY INC.

1078 1 2 General's report as a body of knowledge about the 3 disease lung cancer in approaching any patient. 4 I would use that body of knowledge in 5 that it is single, it is singularly established, it 6 is unequivocal, there are no major objections to that 7 data and a sound compilation of the data that is 8 available on the background of lung cancer. 9 So I would say that that information is 10 11 12 useful in diagnosis treatment terms of confirming a probability of a but I would not use it in the diagnosis and as you asked me. 13 Q. Of an individual and Mr. Horton was an 14 individual; is that correct, sir? 15 A. That is absolutely right. 16 Q. This is a lawsuit by the family of an 17 individual against my client and it is not by the 18 broad public against my client; is that correct, sir? 19 A. That is correct, sir. 20 Q. All right. Dr. LeMaistre, you have 21 served'in various capacities in the American cancer 22 society including a term as president, I believe, 23 your CV and your qualifications earlier about -- in 24 response to Mr. Davis' questions revealed that, you 25 were the president of that organization, correct? ESQUIRE REPORTING COMPANY INC.

1092 1 2 among those in 1981 in the Surgeon General's report 3 and I think excerpts from that are available. It was 4 our decision, right or wrong, to wait until we had 5 the opportunity to study the Melamed report and go 6 back overall of the others before attempting to make 7 that correction. 8 Q. You were mighty careful to get your adeno 9 thing out of there, weren't you, you waited until you 10 were absolutely sure then; is that correct? 11 A. Yes, sir that is correct. 12 Q. You took the pesticides out of there 13 apparently you decided two years ago that pesticides 14 have little or any relevance insofar as smoking and 15 health is concerned; is that correct, sir? 16 A. I didn't say that, no, sir. I decided 17 that the sentence that was in there was apparently 18 incorrect. 19 Q. You took it out of there and you didn't 20 correct the sentence, you just merely deleted 21 pesticides out of there, didn't you? 22 A. Yes, sir. 23 Q. What does that tell me if I am reading 24 your 1985 report and you are talking about the 25 advance of pesticides in smoking and health and I ESQUIRE REPORTING COMPANY INC.

1074 1 2 disagreed is what I meant to say. 3 Q. You didn't review the testimony of any of 4 Mr. Horton's family members or friends or coworkers,- 5 did you, sir in preparing? 6 A. No, sir. 7 Q. The only thing that has anything to do 8 with Mr. Horton that you actually looked at before 9 you reached your opinion in this case was the autopsy 10 and the Surgeon General's report and all of the body 11 of information that you learned over the years; is 12 that correct, sir? 13 A. That is correct, as it was specified in 14 the question, Mr. Upshaw. 15 Q. Did you talk to Dr. Key before your 16 arrived at your opinion? 17 A. I talked to Dr. Key only after I arrived 18 in Lexington in that we are staying in the same 19 household. I did not discuss Mr. Horton, if that is 20 the question. 21 V. Sir, you spent, as I suggested, 40 to 45 22 minutes of your 55 minutes testimony talking about 23 the Surgeon General's report and reports. I believe 24 you said about every other year there has been a 25 Surgeon General's report so since 1964 we ought to ESQUIRE REPORTING COMPANY INC.

1095 1 2 to the harmful effects of smoking has not been 3 established." 4 That is Dr. LeMaistre, Smoking and 5 Health, volume 25, Encyclopedia Americana, 1985, you 6 wrote that back then? 7 A. Yes, sir. 8 Q. Doctor, I have gone on you already taking 9 it out of there. 10 I also mentioned to you, did I not, sir, 11 that the Roswell Park studies and you agreed with me 12 were 1977 studies? 13 A. Yes, sir, and I might point out for the 14 Court's information that those studies carried the 15 rise in adenocarcinoma only to 1974. If you will 16 look at the charts, they stopped after 1974 in their 17 data. 18 Q. All right, you had those available to you 19 for the 1975, 1976, 1977, 1978 right on along the 20 line Encyclopedia Americana revisions 1981, 1982, 21 1983, 1984, 1985? 22 A. I had those and other studies. 23 Q. It stayed right in there until 1987 but 24 the only time it was in there by error was last year? 25 A. That is correct, yes? ESQUIRE REPORTING COMPANY INC.

1096 1 2 Q. Mr. Davis asked you some things about the 3 autopsy. No. Not the autopsy, about our trade 4 secrets. Our ingredients, our recipe. You started 5 off to mention a couple of agents that, "piqued" my 6 curiousity, that is what you said? 7 A. Yes, sir, that is what I said. 8 Q. You called some fellow Dr. Hoffmann and 9 that is when I made my objection and the Judge 10 sustained it; is that correct? 11 A. That is correct, sir. 12 Q. Then you turned around and named two 13 agents, I assume those are the very two agents that 14 piqued your curiosity? 15 A. Yes, sir, that is right. 16 Q. The two agents that the Judge sustained 17 my objection on you ended up testifying about them 18 any way; is that correct, sir because the Court let 19 you? 20 A. Yes, sir, because the Court permitted it, 21 yes, sir. 22 Q. One of them was coumarin and the other 23 was cocoa? 24 A. Yes, sir. 25 Q. That is the stuff we make chocolate milk ESQUIRE REPORTING COMPANY INC.

1061 1 2 opinion in this area and you just sustained my 3 objection on that and if that is not true, then I 4 don't know what he said. 5 THE COURT: Dr. LeMaistre. 6 THE WITNESS: Yes, sir. 7 THE COURT: Do you consider it in your 8 field of expertise the knowledge to form an opinion 9 on the question that has been asked you? 10 THE WITNESS: Yes, sir. 11 THE COURT: You may answer the question. 12 Q. What ingredients have been added to Pall 13 Mall unfiltered cigarettes which, in your opinion, 14 are carcinogenic? 15 A. The substance called coumarin which is 16 known to be an animal carcinogen, that is it will 17 produce cancer in animals and a substance called 18 cocoa, the extracts of which can and have been shown 19 in some instances to contain carcinogenic agents for 20 animals. 21 Q. Dr. LeMaistre, according to the American 22 Tobacco Company's own document, how many years was 23 coumarin added to the tobacco of Pall Mall 24 cigarettes? 25 A. This would show that it was introduced in ESQUIRE REPORTING COMPANY INC.

1058 1 2 MR. BLACKMON: It is not here. 3 MR. WILLIAMS: If he is not going to 5 testify -- MR. D. DAVIS: The genetic environmental 6 exposures which would contribute to lung cancer that 7 includes known carcinogens. There are carcinogens 8 that they put in the product 9 MR. BLACKMON: Not by this witness. 10 MR. UPSHAW: Judge, let him read it. We 11 don't care. Let him read it. We will withdraw any 12 objection. 13 THE COURT: Fine. 14 MR. D. DAVIS: You withdraw any objection 15 to showing it to the witness. 16 MR. UPSHAW: Go ahead. Let him read it. 17 We are not going to introduce it in evidence but we 18 will let him read it. 19 Q. Doctor, go ahead with your explanation. 20 A. I read the list and I saw two agents that 21 piqued-my curiousity here, not being an expert in 22 this field. I chose to call someone that I do 23 consider to be an expert, Dr. Deitrich Hoffmann of 24 the American -- 25 MR. UPSHAW: May it please the Court, he ESQUIRE REPORTING COMPANY INC.

1081 1 2 Q. It didn't prevent the 40 to 50 million 3 that we are talking about, did it? 4 A. That is right but it has prevented 53 5 million others. 6 Q. Are all of those people trying to stop? 7 A. 78 percent admit they are trying to stop 8 smoking. 9 Q. They are? 10 A. Yes. 11 Q. Where do you cite that from? 12 A. From the American Cancer Society 13 statistics that show that of those who smoke heavily 14 78 percent of those have tried to quit. 15 Q. We asked you at your deposition to supply 16 us with a copy of everything you had written on the 17 topic of smoking and health since the 1964 Surgeon 18 General's report. Do you recall that? 19 A. Yes, sir. 20 Q. As a matter of fact, it was introduced as 21 an exhibit to your deposition, my motion or request 22 for production of documents, and we introduced this 23 as an exhibit to your deposition, you recall that, do 24 you not? m ~ 25 A. Yes, sir, I do recall that. co m m w ESQUIRE REPORTING COMPANY INC. Ln to

1091 1 2 edition into print due to "a typographical error"? 3 A. It was an repair error and I will accept 4 full responsibility for the error but the decision 5 was made in 1986 to revise that and it did not get 6 revised. 7 Q. So it was as late 1986 after Mr. Horton 8 then had been diagnosed as having cancer, before you 9 decided to take out of an article published for 10 ladies and gentlemen like this and for me to read in 11 the Americana Encyclopedia stating that 12 adenocarcinoma is not thought to be associated with 13 smoking, it wasn't until 1986 that you decided to get 14 that out of there? 15 A. That is correct, sir. 16 Q. Okay. Then if Mr. Horton or I or anyone 17 else would have read that we would have been mislead 18 by you? 19 A. You would have been misled as to what the 20 facts ultimately were concludeed to be, yes, sir, but 21 I will call tower air tension that the evidence in 22 1977 and in 1980 and 1981 in the Surgeon General's 23 reports indicated that building amount of information 24 and they were not flatfooted and unequivocal. 25 They did begin to include adenocarcinoma ESQUIRE REPORTING COMPANY INC.

1104 1 2 anticipated where you were going with your questions 3 of that nature, which I devined in a few minutes, I 4 would not have stopped you. 5 I simply misunderstood the direction in 6 which you were going. That was one error. That is 7 confessed. Let's go on to something else. 8 MR. UPSHAW: I apologize to the Court for 9 my outburst but I did want to ask my question. 10 THE COURT: I wish I had let you. 11 MR. UPSHAW: You did. 12 THE COURT: The other was I allowed Dr. 13 LeMaistre to testify about the coumarin and cocoa or 14 the cocoa hulls or something of that nature. I am 15 now convinced that I should not have because of 16 several things pointed out by Mr. Upshaw which the 17 jury should disregard the testimony of Dr. LeMaistre 18 regarding the additives to Pall Mall cigarettes of 19 coumarin and cocoa. All right. Do you have any -- 20 MR. KING: New Deal has no questions. 21 THE COURT: Mr. Davis, do you have 22 additional questions. 23 MR. D. DAVIS: Yes, I do, your Honor. 24 THE COURT: You may proceed. 25 MR. D. DAVIS: I would ask the Court ESQUIRE REPORTING COMPANY INC.

1101 1 2 someone else to call? 3 A. Maybe I can find something else in the 4 library is what I was referring to. 5 Q. You came over here to talk about smoking 6 and the ingredients in smoking and cigarettes and 7 lung cancer, didn't you, sir, in humans, in Mr. 8 Horton? 9 A. I came over here to testify in this case, 10 yes. 11 Q. You cannot say that coumarin and cocoa 12 had anything to do with it, can you? 13 A. No, sir, I cannot. 14 Q. All right, sir. 15 Do you know whether coumarin and cocoa 16 have been publicly acknowledged in the literature as 17 cigarette ingredients. I think you said you read 18 that in some English reports, didn't you? 19 A. I recall cocoa or the cocoa bean or hull 20 being involved in the forced release on data as an 21 additive in Great Britain and I do not recall 22 anything about the so-called Hunter studies that have 23 gone on. I have not studied them in detail. 24 Q. The Hunter studies are British, English 25 studies? ESQUIRE REPORTING COMPANY INC.

1069 1 2 past 20 years, if I understand you correctly, for 3 approximately 20 years, you have not engaged in what 4 we laymen would call hands on everyday practice of 5 the science and the art of medicine, have you, sir? 6 A. I have not been in the practice of 7 medicine either accepting a patient for care or 8 consulting with a patient in over a decade. 9 Q. A decade, as a matter of fact, Dr. 10 LeMaistre, you stopped accepting the responsibility 11 for total patient care approximately 20 years ago, 12 didn't you? 13 A. For total patient care, that is correct. 14 Q. That was approximately two or three or 15 four years after you served on the Surgeon General's 16 1964 advisory committee, am I correct? 17 A. Just a little more than that. I think we 18 would move it all the way from 20 years to 19 approximately a few more years than that. 20 Q. Correct me if I am incorrect, but you 21 haven't seen patients for 10 years at all? 22 A. Haven't seen patients for ten years at 23 all in consultation or in any other form to care for 24 them. I have seen patients in the Anderson Hospital 25 as I am appointed to this the staff, I have the ESQUIRE REPORTING COMPANY INC.

1075 1 2 have 10, 11 or 12 of them; is that correct? 3 A. That would be roughly right, yes, sir. 4 Q. I am not holding you to that, I don't 5 know myself? 6 A. I am not bothering to count them. 7 Q. It is somewhere in that range? 8 A. Somewhere in that range, yes. 9 Q. Let me make a statement to you and see if 10 you will agree with this. You can't use the Surgeon 11 General's report to diagnose and treat cancer in a 12 given individual case, can you, sir? 13 A. You cannot use the Surgeon General's 14 report as the sole source to diagnose and treat. You 15 can't use it to diagnose and treat, therefore. If I 16 understand what you are asking, I would not use the 17 Surgeon General's report or reports to diagnose and 18 treat. 19 Q. My question, and I believe you are 20 agreeing with me but just to be exact that I asked 21 you irr Houston, on page 98, line 6, Don, in case you 22 want to check it out and I will represent to you that 23 this is an exact question, I will be glad to come and 24 show you. 25 A. I don't need it. ESQUIRE REPORTING COMPANY INC.

1053 1 2 go ahead, sir, I responded with, relationship to the 3 top of page 152 and I assume I am referring there to 4 my interrogatory sentence, statement. 5 Q. You were? 6 A. The sentence that has begun on the 7 previous page reads, and I quote, this was my 8 statement, "Societies in medical and public health 9 associations agree that smoking causes lung cancer 10 that primary lung adenocarcinoma has now surpassed 11 squamous cell carcinoma of the lung," and then I 12 would include to expand that the material and the 13 latest volume of Cancer, number 47, page 1042 through 14 1046, 1981, Vincent, Richard, Cancer, volume 39, 1647 15 through 1654, 1977, and I added later in this, the 16 experience of Melamed and Chester, volume 86, pages 17 43 -- 44 through 53 which occurred in 1984. 18 I believe those along with the other 19 documents that are exhibited in here which I 20 surrendered to Mr. Upshaw were all four or five 21 documents including those that dealt with proof as it 22 is to me most evident in those publications. 23 I chose two of these deliberately because 24 they come from the two hospitals other than the one 25 that I am associated with, and those three are the ESQUIRE REPORTING COMPANY INC.

1 1080 2 A. Yes, sir, that is hopefully true. 3 Q. It says then it is now estimated from 4 past national surveys and data from the cancer 5 prevention study number 2 that there are about 40 6 million ex-cigarette smokers in the United States 7 today. That was the 1987 report and you believe it 8 Is closer to 50 million today; is that correct? 9 A. Yes, sir. 10 Q. Do you have any reason to believe, and I 11 assume you don't inasmuch as you never met him and 12 didn't know him, whether or not Mr. Horton was any 13 different than that 40 or 50 million people that you 14 just told me about who voluntarily quit smoking? 15 A. I have no information to answer that 16 other than just to say I have no information. 17 Q. So you have no reason to believe he is 18 any different than anyone else, do you? 19 A. No, sir. 20 Q. He may have been a real strong, 21 determ3 ned personality, strong willed person for all 22 you know,; is that correct, sir? 23 A. Could well have been. Many cigarette 24 smokers are and their addiction prevents them from 25 quitting. ESQUIRE REPORTING COMPANY INC.

1082 1 2 Q. I represent to you that paragraph 3 numbered 6 of that document asked you to produce all 4 articles, studies or reports published or 5 unpublished, tapes and videotapes authored, 6 co-authored, created or contributed to by Dr. 7 LeMaistre that are not listed on his curriculum 8 vitae. We asked you to do that, didn't we, sir? 9 A. Yes. 10 Q. You showed up at that deposition with a 11 large stack of documents to produce in response to 12 this request for production; is that correct? 13 A. Yes, sir, that was my interpretation of 14 what should have been made available to you. 15 Q. Yes, sir. You gathered those materials 16 together and you gave them to Mr. Davis to give to 17 me; is that correct, sir? 18 A. That is my recollection, yes, sir. 19 Q. Do you recall over behind you to the left 20 on a table you had a table laden with documents? 21 A. Yes, sir, I do recall that. 22 Q. Including books, including the hard bound 23 Surgeon General's book from the 1964 report that you 24 have there; is that correct? 25 A. No,.sir, that is not correct. ESQUIRE REPORTING COMPANY INC.

1085 1 2 article. We found that on our own. Will you accept 3 that as the truth? 4 A. If you say so Mr. Upshaw. 5 Q. I think Mr. Davis will tell you he didn't 6 tell us about this one. 7 MR. D. DAVIS: It is not listed in the 8 updated CV we sent? 9 MR. UPSHAW: If it is, you didn't give it 10 to us. 11 Q. This is a several page article in here 12 entitled Smoking and Health? 13 A. That is correct. 14 Q. It is in volume 25 that goes from skin to 15 sumac of the Encyclopedia Americana dictionary and 16 the book that I hold in my hand which is Exhibit 26 17 is copyrighted in 1987 which means that the 18 publishers -- anyway, it is the 1987 edition, we 19 don't know when it was actually put on the presses, 20 do we, sir? 21 A. My impression as I stated a few moments 22 ago was that we finished the revision of the article 23 which was an updating submitted it to the publisher 24 and it was published in the last year very recently. 25 Q. You used the word, we updated. Is that ESQUIRE REPORTING COMPANY INC.

1065 1 2 have read? 3 A. That is basically correct, yes, sir. 4 Q. I am going to talk to you a little bit 5 about what the lawsuit is about and it is about a 6 human being named Nathan Henry Horton and not about 7 all of your life experiences. Do you understand 8 that? 9 A. Yes, sir, I can understand you, Mr. 10 Upshaw. 11 Q. Number 1, you elaborated at length, as a 12 matter of fact, for about 30 minutes about the work 13 that you did on the 1964 Surgeon General's report. 14 Do you recall that? 15 A. Yes, sir, I recall that. 16 Q. If you recall, when the deposition began 17 in your office in Houston Texas, the main reason you 18 were there is because you had been told by Mr. Davis 19 that we were there to attack the integrity of the 20 Surgeon General's report? 21 -A. Yes, sir, and in my opinion you have 22 proceeded to do so. 23 Q. Well, the deposition speaks for itself 24 and I will assure you I am not here today to attack 25 the integrity of the Surgeon General's report or the ESQUIRE REPORTING COMPANY INC.

1 2 you and Mrs. Schier? 3 4 5 6 7 8 9 10 11 1086 taff. A. Q. A. Q. A. Q. A. Q. That is correct. What is the lady's name? Mary Jane Schier. She is a member of my At the University of Texas? At the cancer center. Is she a physician? She is not. You and this lady updated your article, 12 submitted it to Americana. When did you do that, 13 sir? 14 A. It would have been late 1986. 15 Q. I believe you blamed the fact that this 16 paragraph in here on adenocarcinoma was left in there 17 through typographical error of the fact that it 18 didn't get to the publisher early enough to get it 19 out of there? 20 A. We were not going to blame the publisher 21 for this. There was an error made in my office of 22 not including that or not having typed it into the 23 final manuscript and we have written to the 24 publishers. 25 Q. Who made the errors in the 1985 and 1986 ESQUIRE REPORTING COMPANY INC.

1087 1 2 editions? 3 A. No one did because the article was not 4 revised in those years. I explained earlier that 5 they revise articles periodically. They republish 6 the entire book. Those words that are in there have 7 been progressively looked at over the years. The 8 time for the major revision would have been the 1987 9 publication. The data that I indicated that I relied 10 very strongly upon was the building data from 1981 11 through 1985 with the Melamed study which are 12 referred to as one of the two comprehensive cancer 13 studies being the data that caused me to be convinced 14 that it was time to change the statement. 15 Q. If the articles were -- let me approach 16 you with the 1985 edition, I submit to you this is 17 volume 25, 1985 edition; is that correct, sir? 18 A. Done in 1984, yes, sir. 19 Q. Yes, sir. The same thing, Smoking and 20 Health, and as a matter of fact the only person given 21 credit for this one is Charles LeMaistre; is that 22 correct? 23 A. That is correct. 24 Q. That is you? 25 A. That is correct. ESQUIRE REPORTING COMPANY INC.

1079 1 2 A. Yes, sir. 3 Q. 1986, as a matter of fact? 4 A. Right. 5 Q. The American Cancer Society, sir, 6 publishes a pamphlet called Cancer Facts and Figures 7 every year, doesn't it? 8 A. Yes. 9 Q. They publish that as a matter of fact the 10 year, 1986, when you were the president of the 11 organization; is that correct? 12 A. That is correct. 13 Q. The 1987 Cancer Facts and Figures states, 14 I represent to you, sir, on page 20 -- Don, you got 15 this? 16 MR. D. DAVIS: No. 17 Q. I ask you this and bring it and show it 18 to you. It states on page 20 that there are 19 estimated 40 million ex-smokers in the United 20 States. That is correct, isn't it, sir? 21 -A. I believe the figure is closer to 50 : 1 1 : twd~.. L...V : A uL..~~ w~..iww AA : 11 : T1111Vi L.VL10~ LJ4b iL Lllab A6abGD YV Ulliloil L i1 1...L .13C{. a l. 23 time I will accept that. 24 Q. It was 40 in 1986 and growing then, more 25 people are quitting smoking every day, aren't they? ESQUIRE REPORTING COMPANY INC.

1102 1 2 A. That is my understanding, yes, sir. 3 Q. Do you remember who supplied the Surgeon 4 General's advisory committee of which you were a 5 member with annotations for some 6,000 to 7,000 6 scientific articles concerning tobacco and smoke, do 7 you remember Dr. Larsen, in other words? 8 A. Yes, sir, I do. 9 Q. He was the man with the 6 to 7,000 10 articles that he furnished to you on tobacco, 11 clinical studies? 12 A. Yes. 13 Q. Indulge me a moment. 14 MR. UPSHAW: We would like move to strike 15 -his testimony concerning coumarin and cocoa. He 16 candidly admits there is no causal connection or 17 hasn't said there is in humans, furthermore, he said 18 what information he has on it he got it from Dr. 19 Deitrich. 20 It is not his. These are the two that 21 piqued his curiousity, the agents that you sustained 22 our motion on and moved the testimony to be stricken 23 and you advised.the jury to -- 24 MR. D. DAVIS: Dr. Ginzel has testified 25 in this Court that all animal carcinogens are in fact ESQUIRE REPORTING COMPANY.INC.

1089 1 2 Q. Volume 25, Encyclopedia Americana, 1986, 3 right? 4 A. Right. 5 Q. That is the one between 1985 and 1987; is 6 that correct? 7 A. That is correct. 8 Q. Let's go back to chemistry and physiology 9 of cigarette smoke and tell me if you haven't revised 10 that article and taken that paragraph out of it? 11 A. That is a deletion, yes, sir, that is 12 correct. 13 Q. Somebody revised your article in 1986, 14 didn't they? 15 A. I wouldn't call that a major revision but 16 that was a deletion. 17 Q. You could have deleted adeno out of there 18 in 1986? 19 A. That is correct. 20 Q. The studies that you go back to the 21 Roswell Park Institute, which was 1977? 22 A. I will tell you again that the 1985 study 23 published by Melamed was one that we looked at and we 24 were not ready to conclude that all of the evidence 25 we needed was there. We were after we had that study ESQUIRE REPORTING COMPANY INC.

1093 1 2 read your 1986 edition and you don't even mention 3 pesticides? 4 A. Do you want to know what it would tell 5 you? 6 Q. Yes, sir? 7 A. It would tell you you have to go to 8 another source. 9 Q. It would tell me that you changed your 10 mind also? 11 A. It would tell you that I no longer stood 12 by that statement because evidence as accumulated, I 13 think these things ought to be updated. 14 Q. Why didn't you put the new paragraph in 15 there saying I changed my mind on pesticides, now I 16 do believe that they are causally connected with 17 smoke and health? 18 A. Because that is not a field in which I 19 have all of the,data to make that statement. 20 Q. Good. 21 Bite way, Doctor, are you aware that the 22 plaintiffs in this case claim that pesticides used in 23 growing tobacco contributed to Mr. Horton's illness 24 and death? 25 A. I period that, yes. ESQUIRE REPORTING COMPANY INC.

1088 1 2 Q. And Ms. Schier is not included as a 3 co-author of this one? 4 A. That is correct. 5 Q. Under chemistry of tobacco smoke, the 6 second paragraph there, will you read that, having to 7 do with pesticides? 8 A. Pesticides used in the growing of tobacco 9 may be found in trace amounts in the tobacco leaf and 10 at times in tobacco smoke -- the harmful effects of 11 smoking have not been established. 12 Q. Now I hand you 13 A. May I comment on that further. 14 0. Certainly. 15 A. I would like to indicate in here that the 16 signature under this is Charles LeMaistre, 17 chancellor, University of Texas system. I haven't 18 been chancellor of the University of Texas system 19 since 1978. I don't know what the date of that 20 revision was. The publication date you have. I 21 can't tell you without going back to see when it was 22 submitted in my office when that arrived. 23 Q. If you will let me show you, I will show 24 you you revised it next year, 1986, sir? 25 A. All right. ESQUIRE REPORTING COMPANY INC.

1060 1 2 done by somebody else and information from other 3 people? 4 MR. BLACKMON: There would have been no 5 need for you to sustain that previous objection. 6 THE COURT: You didn't answer my 7 question. I won't force you to answer it but the 8 objection is overruled. 9 MR. BLACKMON: Your Honor, what you did 10 was sustain an objection whereby the witness is going 11 to testify about information he got from somebody 12 else. Now he is going around that to tell you that I 13 have my own opinion based on what I heard from 14 someone else. 15 THE COURT: I have got you the first time 16 you said that. 17 MR. UPSHAW: If it -- 18 THE COURT: Mr. Upshaw. 19 MR. UPSHAW: I would like to say that I 20 have great respect for Dr. LeMaistre and I really 21 believe that he is trying to tell us and did tell us 22 that he merely got his curiousity piqued as he said 23 reading this list and then he very candidly admitted 24 that I am not an expert in this area. If he is not 25 an expert in this area, then he can't give an expert ESQUIRE REPORTING COMPANY INC.

1094 1 2 Q. Do you know who Dr. Daniel Horn is? 3 A. Yes, sir, I know Dr. Horn. 4 Q. At one time he was the director of the 5 Public Health Services of the United States back in 6 the late 1960s or early 1970s? 7 A. I think that is right, yes. 8 Q. Did you know that Dr. Horn said that the 9 amount of insecticide or pesticide residues in 10 tobacco are at very, very low levels and he agrees 11 that their insignificant and not a part of the 12 picture, so to speak, you realize Dr. Horn has said 13 that, don't you, sir? 14 A. I will accept your word, Mr. Upshaw. 15 Q. Do you know whether the pesticides used 16 in growing tobacco have ever been established to be 17 harmful to smokers? 18 A. From my own knowledge, no. 19 Q. All right, sir. 20 Now, as a matter of fact you wrote that 21 in your 1985 article in the Americana Encyclopedia, 22 isn't that correct. Let me cite that, "Pesticides 23 used in growing of tobacco may be found in trace 24 amounts in the tobacco leaf and at times in tobacco 25 smoke. The role of these compounds in contributing ESQUIRE REPORTING COMPANY INC.

1097 1 2 out of? 3 A. I assume so. 4 Q. Hershey bars? 5 A. A lot of things. 6 Q. If anybody likes chocolate, they like 7 cocoa? 8 A. I would assume so. 9 Q. I am a chocolate freak myself, I love it, 10 and that is one of the most popular flavors in the 11 world. Is anything more favorite than maybe vanilla 12 than chocolate? 13 A. I have no idea. I am not an expert. I 14 can tell you my preferences don't run like yours. 15 Q. You are not as fat as I am? 16 A. That is your statement, Mr. Upshaw. 17 Q. You haven't made a study then on coumarin 18 or cocoa, have you? 19 A. No, sir, I have knowledge of both from 20 previous readings. 21 Q. What you have knowledge of that there are 22 some statistical association in animal studies 23 revealing that there probably or possibly animal 24 carcinogens? 25 A. That is correct. ESQUIRE REPORTING COMPANY INC.

1090 1 2 in hand and discussed it. 3 Q. Didn't you tell this jury earlier that 4 you relied upon the Roswell Park study on your 5 opinion that smoking was associated with 6 adenocarcinoma and the Roswell Park study, sir, I 7 submit to you was in 1977; isn't that correct? 8 A. That is correct. That is the first of 9 the significant studies but I will tell you also, 10 sir, I have testified that I relied upon the Melamed 11 study in 1985. 12 Q. Up until 1986, then, you still believed 13 that adenocarcinoma was not causally connected or 14 related to smoking; is that correct? 15 A. I don't believe I can agree with that. 16 What I said was we were not ready to revise that 17 article. With the coming of the Melamed study, that 18 evidence was very substantial. 19 I gave you all of that information in 20 October of 1987. It was the body of evidence that we 21 used in arriving at that position. The Melamed study 22 was among those. 23 Q. Why in 1987 did you call Americana's 24 attention to that error, as you call it, on adeno and 25 that you didn't get it into -- didn't get the revised ESQUIRE REPORTING COMPANY INC.

1098 1 2 Q. You do not have any statistical studies 3 or associations showing that they are human 4 carcinogens, do you, sir? 5 A. No, sir, neither have I looked for that. 6 Q. Are you more interested in animals than 7 you are humans? 8 A. No, sir. I got the available information 9 as it was given to me and that is the information 10 that was given to me. It doesn't reflect my interest 11 at all, Mr. Upshaw. 12 Q. If it was available anywhere in the 13 literature showing that they were human carcinogens, 14 you have one of the finest laboratories and one of 15 the finest libraries in the world at M.D. Anderson on 16 human carcinogens, don't you, sir? 17 A. Yes, sir, and you may be assured it will 18 be checked out tomorrow. 19 Q. I wish you would have checked it out 20 yesterday? 21 A. I wish I had seen it yesterday, I did 22 not. 23 Q. All you can tell us is you read studies 24 is that they are animal carcinogens and you can't 25 tell the jury that they are human carcinogens, can ESQUIRE REPORTING COMPANY INC.

1 1099 2 you? 3 A. No, sir, I cannot. 4 Q. We do know that Mr. Horton was a human 5 being, he was not an animal? 6 A. You are certainly right there, yes, sir. 7 Q. Do you know whether or not England has 8 specifically approved coumarin and cocoa for use in 9 cigarettes? 10 A. I do not know but if I may be permitted 11 to expand on the piquing of my curiosity. It came 12 from the British Medical Research Council's studies 13 of the additives of the British tobacco companies to 14 filtered cigarettes and unfiltered cigarettes to add 15 taste and that is where my recall of the cocoa and 16 the cocoa hulls when paralyzed having carcinogenic 17 effect upon some species and I have confirmed that to 18 be animals through Dr. Hoffmann today. 19 Q. You mean you called Dr. Hoffmann today? 20 A. Yes, sir. 21 Q. You mean as we sit here, as you have been 22 in this courtroom, you used the phone to attempt to 23 get testimony here to tell us to help your expertise 24 on what carcinogens are? 25 A. I was asked the question this morning to ESQUIRE REPORTING COMPANY INC.

1100 1 2 look at a list. I was interested in two products 3 during the lunch hour. I telephoned Dr. Hoffmann. 4 Those are the facts. 5 Q. Did Dr. Hoffmann do these studies 6 himself? 7 A. Dr. Hoffmann did not do these studies 8 himself but Dr. Hoffmann is the director of tobacco 9 carcinigenesis for the American Health Foundation and 10 I consider him to be a well informed individual. 11 Q. He told you animals, not humans, right? 12 A. No, sir . He did not. He told me 13 i l an ma s. 14 Q. Okay. In other words you didn't even 15 bother to ask him did it have any effect on human 16 beings, did you? 17 A. No. I did ask him and Dr. Hoffmann said, 18 't kn I d on ow. 19 Q. Well, if he doesn't know and he is the 20 expert, you don't know, right? 21 A. As of this sitting, that is true, but I 22 think you have already identified there are other 23 sources I can look for to see if there is 24 information. I wouldn't stop with that, no, sir. 25 Q. In other words, maybe you can find ESQUIRE REPORTING COMPANY INC.

1103 1 2 suspected human carcinogens. He is an expert on 3 pharmacology. 4 THE COURT: Mr. Davis, we cannot go on 5 suspecting, assuming, I am going to grant the motion. 6 MR. UPSHAW: Will you please instruct the 7 jury to disregard all testimony about coumarin and 8 cocoa. 9 THE COURT: I might as well do this now. 10 I was going to do this before we adjourned. I have 11 committed two errors this afternoon. I hesitate to 12 admit error but sometimes we must. I am reminded of 13 what Winston Churchill said, but for admitting an 14 error on the floor of the House of Commons in Great 15 Britain. 16 And that is that error confessed is a 17 beautiful thing to behold if the right detail is 18 given to its expression. And it should be exercised 19 but cautiously because if done too often it is bad 20 for the reputation. 21 I spoke sharply to Mr. Upshaw a while 22 ago. Mr. Upshaw, I was in error. 23 MR. UPSHAW: I spoke sharply to you, I 24 apologize. Let's kiss and make up. 25 THE COURT: I must also say that had I ESQUIRE REPORTING COMPANY INC.

1107 1 2 to the Court. 3 THE COURT: All remarks to the Court will 4 be addressed to me, not to opposing counsel. 5 MR. UPSHAW: I am not talking to anybody 6 but you and when I need admonishing, you do it, not 7 Mr. Davis and not Mr. Barrett. 8 I am simply saying that you just got done 9 telling them to get off coumarin and cocoa. If he 10 wants to ask a question about whether or does he have 11 an opinion about whether things in Pall Mall's cause 12 cancer. He has already done that on direct. 13 I didn't even cover it with him on 14 cross. We object to it. It is improper redirect. 15 THE COURT: Mr. Davis, I believe, he is 16 correct and my notes show that Dr. LeMaistre answered 17 that question with a pretty resounding yes. 18 MR. D. DAVIS: With that, your Honor, we 19 pass the witness. Thank you. 20 THE COURT: All right. Dr. LeMaistre, 21 ou e e c s d y ar x . u e 22 I assume he can go back to the University 23 of Texas and assume he is finished. Court is in 24 recess until 9:00 in the morning. 25 (Conference with the Judge.) ESQUIRE REPORTING COMPANY INC.

1105 1 2 reporter to mark this as an exhibit if they are 3 withdrawing their objection. 4 MR. UPSHAW: We said we didn't mind you 5 using it. It is protected by a protective order. We 6 don't want the whole world to know what our trade 7 secrets are. We did not object to you using it -- 8 M h H COURT D i t d r. : av s, w goo purpose T E a 9 is there at this point, you may by some other witness 10 get to the point that this may be an acceptable 11 exhibit. I do not think it is at this time. 12 MR. D. DAVIS: All right. We will 13 establish it with other witnesses. 14 THE COURT: You may mark it for 15 identification and then you may call it back up if 16 you can -- 17 MR. BAILEY: May we suggest that this 18 exhibit that is marked for identification be placed 19 under seal in an envelope? 20 THE COURT: Sure. 21 MR. BAILEY: As part of the Court record. 22 THE COURT: Mr. Moore, you will get me an 23 envelope and seal that. That is under protective 24 order of this Court and will not be made public so 25 get me and I will seal it and sign it myself. You ESQUIRE REPORTING COMPANY INC.

1106 1 2 may hand that to me after it is marked. 3 (Whereupon, document above referred 4 to was marked as Exhibit 58 5 for identification, as of this date.) 6 MR. D. DAVIS: This has been marked for 7 identification as Exhibit Number 58. I hand it to 8 the Court. 9 REDIRECT EXAMINATION 10 BY MR. D. DAVIS: 11 Q. Dr. LeMaistre, disregard totally coumarin 12 and the cocoa abstract, the animal carcinogens that 13 have been put in Pall Mall's. Based on your study 14 with the Surgeon General's advisory committee and 15 your work at M.D. Anderson, do you have an opinion 16 based on reasonable medical probability as to whether 17 or not cigarette smoking including Pall Mall 18 cigarettes is a cause of lung cancer in humans? 19 MR. UPSHAW: May it please the Court. 20 Look, this is incredible for as good a lawyer as Mr. 21 Davis is to come right in the back door. 22 MR. D. DAVIS: What is the objection? 23 MR. UPSHAW: Don't you try to tell me 24 what to do. 25 Don't tell me what to do. I am talking ESQUIRE REPORTING COMPANY INC.

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