Filing # 30970077 E-Filed 08/17/2015 09:23:29 PM
`
`IN THE CIRCUIT COURT OF THE 17th
`JUDICIAL CIRCUIT, IN AND FOR
`BROWARD COUNTY, FLORIDA
`
`COMPLEX CIVIL DIVISION
`
`CASE NO.: 08-80000 (19)
`
`JUDGE JOHN J. MURPHY,II
`
`IN RE: ENGLE PROGENY CASES
`TOBACCO LITIGATION
`
`Pertains To: Mary Cooper
`Case No.: 08-026350
`
`/
`
`DEFENDANTS’ BENCH MEMORANDUM REGARDING
`THE ADEQUACY OF THE SURGEON GENERAL’S WARNINGS
`
`Defendants Philip Morris USAInc. and R.J. Reynolds Tobacco Company(“Defendants”)
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`respectfully submit this bench memorandum in support of their request to preclude Plaintiff from
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`offering evidence or argument suggesting that the Surgeon General’s warnings since July 1, 1969
`
`were inadequate or that Defendants should or could have given different warnings after that
`
`date.! When Congress amended the Federa! Cigarette Labeling and Advertising Act (“Labeling
`
`Act”) in 1969, it expressly preempted any claim that would place a “requirement or prohibition
`
`based on smoking and health.” 15 U.S.C. § 1334(b). As the United States Supreme Court held in
`
`Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), the Labeling Act’s preemption clause bars
`
`any claim based on the adequacy of the congressionally-mandated Surgeon General’s warnings.
`
`Indeed, in other Engle-progeny cases, this Court has instructed juries that “[w]arning labels that
`
`are placed on cigarette packs and advertisements by defendants comply with federal law” and
`
`' Defendants also seek to exclude other theories of liability preempted by the Federal Cigarette
`Labeling and Advertising Act. See Defendants’ Motion in Limine to Exclude Evidence and
`Argument Related to Preempted Theories of Liability (served July 15, 2014). Defendants
`incorporate by reference the arguments made and supporting case law cited in that motion.
`
`314110 v3
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`*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK8/17/2015 9:23:29 PM.****
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`

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`that defendants “had no obligation to place any additional warnings on their cigarette packs and
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`advertisementsafter July 1, 1969.” McCoy Trial Tr. (Jul. 8, 2015) at 5243:04-17 (Ex. A).
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`Notwithstanding the foregoing, and based on pasttrials, including Cooper J, Defendants
`
`anticipate that Plaintiffs experts, Drs. Cummings and Proctor, will seek to testify that:
`
`1)
`
`2)
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`Defendants could have provided warnings in addition to the Surgeon
`General’s warnings and did not; and
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` Post-1969 warnings were not effective because people paid little to no
`attention to them or were “drowned out” by other information.
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`But none of this testimony should be permitted. Express preemption bars Plaintiff's experts
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`from testifying that additional or different warnings should have been given, or from even
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`suggesting that
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`the warnings were inadequate or
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`that Defendants’ conduct
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`somehow
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`“neutralized” the effectiveness of the Congressionally mandated warnings. For these reasons,
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`Defendants request that the Court preclude Plaintiff from offering such evidence or argument.
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`ARGUMENT
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`The Labeling Act governs the placement and content ofall cigarette warning labels in the
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`United States. Specifically, it requires that cigarette manufacturers place warnings on every
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`package of cigarettes and on every cigarette advertisement. See 15 U.S.C. § 1331, et seq.
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`Congress enacted the Labeling Act in 1965 for the purpose of “establish[ing] a comprehensive
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`Federal program to deal with cigarette labeling and advertising” so that “the public may be
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`adequately informed about any adverse health effects of cigarette smoking.” Jd (emphasis
`
`added). To accomplish that goal, Congress drafted warning language it considered “necessary
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`and sufficient” to warn the public and expressly precluded any other statements about smoking
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`and health on cigarette packs.
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`/d. at § 1333 (setting forth warning language); id. at § 1334(b)
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`(setting forth express preemption provision).
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`314110 v3
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`The Labeling Act’s express preemption provision, effective July 1, 1969, precludes any
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`state law claim that would impose a “requirement or prohibition based on smoking and health.”
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`15 U.S.C. § 1334(b). Failure-to-warn claims based on the adequacy of the Surgeon General’s
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`wamings are preempted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 522 (1992). The
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`warnings are presumedto be sufficient, and a plaintiff cannot assert that cigarette packages
`
`or advertising “should have included additional, or more clearly stated, warnings.” See id
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`(emphasis added). Nor maya plaintiff assert that a cigarette manufacturer should have provided
`
`additional warnings through other
`
`forms of communication,
`
`such as a public service
`
`announcement. See Sonnenreich v. Philip Morris Inc., 929 F. Supp. 416, 419 (S.D. Fla. 1996)
`
`(rejecting plaintiff’s argument that defendants should have warned her through “non-promotional
`
`_
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`communications” in addition to the Surgeon General’s warnings). Furthermore, the Labeling
`
`Act preempts theories based on statements or imagery in marketing that misleadingly
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`“downplay[ed] the dangers of smoking” and thus “minimize[d]” or otherwise “neutralized the
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`effect of federal mandated warning labels.” Cipollone, 505 U.S. at 527; see also Spain v. Brown
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`& Williamson Tobacco Corp., 363 F.3d 1183, 1202 (11th Cir. 2004).
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`Based on past experience in Cooper J and othertrials, Plaintiff's experts, Drs. Cummings
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`and Proctor, will attempt to discuss documents and offer opinions that bear directly on the
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`adequacy of the Surgeon General’s warnings. E.g., Caprio Trial Tr. (Feb. 5, 2015) at 2700:25-
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`2701:12 (Dr. Proctor testifying that defendants “still could have put other warnings on” cigarette
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`packages after 1969) (Ex. B).
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`In the recent McCoytrial, for example, Dr. Proctor explicitly
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`stated that all the federally-mandated warnings have not had “any significant effect” because
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`people do not notice or give any weight to them: “They’re hard to see. They’re hard to read.
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`They’re just attributed to the Surgeon General.
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`Soit’s just his view. And they’re not graphic.”
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`314110 v3
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`McCoy Trial Tr. (Jun. 24, 2015) at 1685:15-22 (Ex. C). Proctor also testified that the warnings
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`were overwhelmedbythe defendants’ advertising and promotional efforts and expenditures.
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`Similarly, Defendants expect that both experts will attempt to testify about the Federal
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`Trade Commission’s conclusion in 1981 that few adults noticed or paid attention to the warning.
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`Dr. Cummings gavethis testimony in CooperI:
`
`Q.
`
`It says: This conclusion is further supported by data
`(BY MR. BASS)
`indicating that less than three percent of adults exposed to cigarette ads
`ever even read the warning. While cigarette ads present their message in a
`variety of frequently changing, attention getting formats using numerous
`image provoking, personalizable themes, the current abstract warning in
`the same rectangular shape has appeared unchanged in every cigarette
`ad for so long that few people ever notice or pay attention to it. Did I
`read that right?
`
`A.
`
`Yes.
`
`CooperTrial Tr. (Aug. 13, 2014) at 1579:19-1580:08, 1597:02-15 (emphasis added) (Ex. D); see
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`also Caprio Trial Tr. (Jan. 29, 2015) at 1646:23-1647:14 (Dr. Proctor agreeing with the FTC’s
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`conclusion and further testifying that the 1985 warnings suffered from the same deficiencies
`
`because of the “difficult-to-see format”) (Ex. E); see also McCoy Trial Tr. (Jun. 24, 2015) at
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`1688:23-1689:03 (Ex. C).
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`None of the testimony above should be permitted.
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`In addition to explicit statements that
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`Defendants should have given different or additional warnings, preemption also bars suggestions
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`that
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`the warnings were not adequate to warn the public about
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`the dangers of smoking.
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`Testimony byPlaintiff's experts that the warnings were not noticed or read by most people, or
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`that some warnings were better than others, suggests that the warnings failed to reach the public
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`or provide them with sufficient information about the health risks of smoking.” Moreover,
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`* Moreover, whether other smokers saw or noticed the warningsis irrelevant because Ms. Cooper
`did see them. Cooper I Trial Tr. (Aug. 22, 2014) at 3918:25-3919:04 (“Q. Isn’t it true that from
`Footnote continued on next page
`
`314110 v3
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`testimony that Defendants made statements that neutralized or overwhelmed the Congressional
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`warnings fails for the same reason. Because Congress decided that the Surgeon General’s
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`warnings were sufficient as of July 1, 1969 to adequately warn the public about the adverse
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`health consequences of smoking, Plaintiff cannot offer evidence and argumentto the contrary or
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`seek to hold Defendants liable for failing to provide different warnings (such as for addiction)
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`during this time. See Cipollone, 505 U.S. at 522.
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`Plaintiff may argue that evidence regarding the inadequacy of the warningsis relevant for
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`another purpose—comparative fault. See, e.g., McCoy Trial Tr. Jun. 24, 2015) at 1694:10-23 (“I
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`am talking about the fact that people exposed to warnings are also exposed to other information
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`that can drown out the warnings.”) (Ex. C). Although Plaintiff may present evidence that she
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`was exposed to “other information” in addition to the warnings, she may not present evidence or
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`argument that this “other information” (i.e. Defendants’ advertising and public statements)
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`minimized or downplayed those warnings.
`
`See Cipollone, 505 U.S. at 527. This is true
`
`regardless if Plaintiff’s argument is predicated on the fact that the warnings were neutralized by
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`the content of those statements or by the sheer volume of them. Thus, any argument that the
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`evidence is relevant for a non-preempted purposefails.
`
`Finally, admission of evidence regarding the adequacy of the warnings would not be
`
`harmless error. See Fla. Ann. Stat. § 59.041. A heavily disputed issue at trial will be what Ms.
`
`Cooper knew about the health risks of smoking throughoutherlife, including what information
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`she was exposed to (such as the Surgeon General’s warnings). Evidence that the FTC reported
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`that the warnings were ineffective or drowned out by Defendants’ advertising will necessarily
`
`Footnote continued from previous page
`the time the warning has been onthe pack of cigarettes you’ve always knownit was there, even
`if you weren’t reading it, you knew it was there? A. Of course I knew it was there.”) (Ex. F).
`
`314110 v3
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`impactthe jury’s decision given thatit will hear conflicting evidence on Plaintiff's knowledge
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`and awareness. See Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So.2d 1369,
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`1374 (Fla. Ct. App. 1992) (finding the trial court’s admission of a hearsay statement that
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`decedent was not wearing his seatbelt reversible error because other evidence presented on this
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`issue was conflicting and the court could not say that the jury had not been affected).
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`If jurors
`
`hear testimony that
`the warnings had no significant effect on other smokers,
`they may
`improperly apply that finding to Plaintiff, even though she remembered seeing those warnings.
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`Because the evidence has the potential to impact a key factual dispute in this case, its admission
`
`could result in a miscarriage ofjustice.
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`CONCLUSION
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`For the foregoing reasons, the Court should preclude Plaintiff from presenting evidence
`
`or argument suggesting that the Surgeon General’s warnings since July 1, 1969 were inadequate
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`or that Defendants should or could have given different warnings.
`
`Respectfully submitted,
`
`/s/ Peter M. Henk
`Peter M. Henk
`Fla. Bar No.: 38321
`E-mail: phenk@shb.com
`SHOOK, HARDY & BACON L.L.P.
`JPMorgan Chase Tower
`600 Travis Street, Suite 3400
`Houston, TX 77002
`Telephone: (713)227-8008
`Facsimile: (713)227-9508
`
`Attorneyfor Defendant Philip Morris USA Inc.
`(andfiling on behalfofDefendant R.J. Reynolds
`Tobacco Companyfor purposes ofthis document
`only)
`
`314110 v3
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`

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`CERTIFICATE OF SERVICE
`
`WE HEREBY CERTIFY that a true and correct copy of the foregoing was served by
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`Electronic Mail and through the Florida Court’s E-Filing Portal on all counsel listed on the attached
`
`Service List on this 17th day of August, 2015.
`
`/s/ Peter M. Henk
`
`Attorneyfor Defendant
`
`SERVICE LIST
`
`Mary Cooper,et al. v. Philip Morris USA Inc., et al.
`
`Counselfor Plaintiff:
`JONATHAN GDANSKI, ESQ.
`Schlesinger Law Offices, P.A.
`1212 Southeast Third Avenue
`Fort Lauderdale, FL 33316
`Telephone: (954) 320-9507
`Fax: (954) 320-9509
`jonathan @ schlesingerlawoffices.com
`SLOPA.Service @schlesingerlawoffices.com
`taylor @schlesingerlawoffices.com
`
`Counselfor Defendant R.J. Reynolds Tobacco
`Company:
`STEPHANIE E. PARKER, ESQ.
`JOHN F. YARBER, ESQ.
`JOHN M. WALKER,ESQ.
`Jones Day
`1420 Peachtree Street, N.E., Suite 800
`Atlanta, GA 30309
`Telephone: (404) 521-3939
`Fax: (404) 581-8330
`separker@jonesday.com
`
`iyarber@jonesday.com
`jmwalker@ jonesday.com
`preichert @jonesday.com
`
`
`
`Counselfor Defendants Liggett Group, LLC and
`Vector Group, Ltd., Inc.:
`KELLY A. LUTHER,ESQ.
`MARIA H. RUIZ, ESQ.
`GISELLE GONZALEZ MANSEUR,ESQ.
`Kasowitz, Benson, Torres & Friedman, LLP
`1441 Brickell Avenue, Suite 1420
`Miami, FL 33131
`Telephone: (305) 377-1666
`Fax: (305) 377-1664
`kluther @kasowitz.com
`
`mruiz @kasowitz.com
`gmanseur@ kasowitz.com
`
`Counselfor Defendant R.J. Reynolds Tobacco
`Company:
`GORDON JAMES, ESQ.
`ERIC L. LUNDT,ESQ.
`Sedgwick LLP
`2400 E. Commercial Blvd., Suite 1100
`Fort Lauderdale, FL 33308
`Telephone: (954) 958-3550
`Fax: (954) 958-2513
`Eric.lundt @sedgwicklaw.com
`Gordon.james @ sedgwicklaw.com
`
`
`Famela.olshan @sedgwicklaw.com
`Jonathan.thomas @sedwicklaw.com
`
`314110 v3
`
`

`

`Counsel for Defendant Philip Morris USA
`Counsel for Defendant Philip Morris USA
`Inc.
`Ine.
`PETER M. HENK, ESQ.
`JEFFREY M. WAGNER,ESQ.
`Shook, Hardy & Bacon LLP
`Kaye Scholer LLP
`JPMorgan Chase Tower
`70 W. Madison St., Ste. 4200
`600 Travis Street, Suite 3400
`Three First National Plaza
`Houston, TX 77002
`Chicago,I. 60602
`Tel: (713) 227-8008
`Tel: (312) 583-2300
`Fax: (713) 227-9508
`Fax: (312) 583-2360
`phenk@shb.com
`jeffrey. wagner @kayescholer.com
`SHBPMAttyBroward @shb.com
`
`Counsel for Defendant Philip Morris USA
`Inc.
`SCOTT KAISER, ESQ.
`Shook, Hardy & Bacon LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`Tel: (816) 474-6550
`Fax: (816) 421-5547
`skaiser@shb.com
`SHBPMAttyBroward @shb.com
`
`ne.
`
`Counsel for Defendant Philip Morris USA
`PATRICIA MELVILLE,ESQ.
`TYLER ULRICH, ESQ.
`Boies, Schiller & Flexner LLP
`100 Southeast Second Street, Suite 2800
`Miami, Florida 33131
`E-Mail: tulrich @bsfllp.com
`E-Mail: pmelville @bsfllp.com
`
`314110 v3
`
`

`

`EXHIBIT A
`
`

`

`
`
`IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
`IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
`
`ENGLE PROGENY CASES
`IN RE:
`TOBACCO LITIGATION
`poe /
`
`COMPLEX LITIGATION UNIT
`
`Pertains to:
`Case No.:
`
`JOHN McCoy
`08-025806
`
`CASE NC. 08-80000
`
`(19)
`
`ee aei ieeee /
`
`
`
`JURY TRIAL BEFORE THE HONORABLE
`JOHN J. MURPHY, III
`CIRCUIT COURT JUDGE
`
`(Volume 34)
`
`Pages 5117 to 5250
`
`8
`Wednesday, July 8, 2015
`1:13 p.m.
`- 3:58 p.m.
`
`Broward County Courthouse
`201 Southeast 6th Street
`Courtroom 850
`Fort Lauderdale, Florida
`
`33301
`
`STENOGRAPHICALLY REPORTED BY:
`NANCY E. PAULSEN, C.R.R., R.P.R., F.PLR,
`Certificate in Realtime Systems Administration
`Certified Realtime Reporter
`Registered Professional Reporter
`Florida Professional Reporter
`
`Inc.
`Specialty Reporting,
`941.468.2779 / nancy@specialtyreporting. com
`
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`APPEARANCES:
`
`9118
`
`
`
`On Behalf of the Plaintiff
`
`SCOTT P. SCHLESINGER, ESQUIRE
`JONATHAN GDANSKI, ESQUIRE
`SCHLESINGER LAW OFFICES, P.A.
`1212 Southeast Third Avenue
`Ft. Lauderdale, Florida 33316
`954-320-9507
`Scott@schlesingerlaw.com
`Jgdanski@schlesingerlaw.com
`
`STEVEN J. HAMMER, ESQUIRE
`LAW OFFICES OF STEVEN J. HAMMER
`440 South Andrews Avenue
`Fort Lauderdale, Florida 33301-2830
`954~766-8856
`Hammercrimlaw@aol.com
`
`On Behalf of the Defendant R.J. Reynolds and Loriliard
`
`JEFFREY L. FURR, ESQUIRE
`CORY HOHNBAUM, ESQUIRE
`KING & SPALDING
`100 North Tryon Street
`Suite 3900
`28202
`Charlotte, North Carolina
`704-503-2600,
`jfurr@kslaw.com,
`Chohnbaum@kslaw.com
`
`JASON E. KEEHFUS, ESQUIRE
`VALENTIN LEPPERT, ESQUIRE
`KATHRYN S. LEHMAN, ESQUIRE
`KING & SPALDING
`1180 Peachtree Street, N.E.
`Atlanta, Georgia
`30309
`404-572-2494,
`jkeehfus@kslaw.com,
`Vleppert@ékslaw.com, Klehman@kslaw.com
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`Inc.
`Specialty Reporting,
`941.468.2779 / nancy@specialtyreporting.com
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`9119
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`APPEARANCES :
`
`On Behalf of Defendant Philip Morris USA,
`
`Inc.
`
`BRUCE R. TEPIKIAN, ESQUIRE
`2555 Grand Boulevard
`Kansas City, Missouri 64108
`816-474-6550, Btepikian@shb.com
`
`Also Present:
`
`John McCoy
`
`Inc.
`Specialty Reporting,
`941.468.2779 / nancy@specialtyreporting.com
`
`
`
`

`

`
`
`Volume 34, July 8, 2015
`
`Pages 5117 to 5250
`
`CLOSING ARGUMENT BY MR. FURR
`
`CLOSING ARGUMENT BY MR. TEPIKIAN
`
`5126
`
`5209
`
`REBUTTAL CLOSING ARGUMENT BY MR. SCHLESSINGER
`
`5227
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`REPORTER'S CERTIFICATE
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`5120
`
`~INDEX
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`
`
`

`

`5243
`
`THE COURT: We're done. Thark you.
`
`(The following proceedings were had in open
`
`court before the Court and jury.)
`THE COURT: Ladies and gentlemen, a couple
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`things. There was an objection made during the
`
`last portion of the argument, and I overruled the
`
`objection.
`
`The objection should have been
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`sustained. Warning labels that are placed on
`
`cigarette packs and advertisements by defendants
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`comply with federal law.
`
`The defendant had no
`
`obligation to place any additional warnings on
`
`their cigarette packs and advertisements after July
`
`1, 1969.
`
`Additionally, cigarette advertisements from
`
`July 1,
`
`'69,
`
`forward cannot be the subject of any
`
`claim that advertising undermined or neutralized
`
`the warnings or made them less effective.
`
`In any event,
`
`ladies and gentlemen,
`
`I
`
`apologize a little bit.
`
`I know I promised one of
`
`your members that we were going to adjourn early
`
`because he had a car problem.
`
`So we're going to
`
`adjourn now.
`
`There is another instruction I have to read to
`
`you before I let you deliberate.
`
`So it's not being
`
`turned over to you for deliberations at this time.
`
`Inc.
`Specialty Reporting,
`941.468.2779 / nancy@specialtyreporting.com
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`9250
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`REPORTER'S CERTIFICATE
`
`STATE OF FLORIDA
`
`COUNTY OF BROWARD
`
`)
`
`)
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`I, NANCY E. PAULSEN, CRR, RPR, FPR, certify
`
`that
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`I was authorized to and did stenographically report
`
`the foregoing proceedings, and that the transcript is a
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`true and complete record of my stenographic notes.
`
`Dated this 8th of July, 2015.
`
`NANCY E. PAULSEN, CRR, RPR, FPR
`(Transcript digitally signed through
`VeriSign)
`
`Inc.
`Specialty Reporting,
`941.468.2779 / nancy@specialtyreporting.com
`
`
`
`

`

`EXHIBIT B
`
`

`

`IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
`IN AND FOR BROWARD COUNTY, FLORIDA
`
`Page 2565
`
`COMPLEX CIVIL DIVISION
`Case No. 08~-80000 (19)
`JUDGE THOMAS M. LYNCH,
`
`IV
`
`IN RE:
`
`ENGLE PROGENY CASES
`
`TOBACCO LITIGATION
`
`Pertains to:
`
`Edward Caprio
`Case No. 07-036719 (5)
`
`TRANSCRIPT OF PROCEEDINGS
`
`JURY TRIAL ~—~ VOLUME 19
`(Pages 2565 — 2749)
`
`DATE TAKEN:
`TIME:
`PLACE:
`
`BEFORE:
`
`February 5, 2015
`(1:30) 1:34 p.m. - 4:56 p.m.
`Broward County Courthouse
`201 S.EBE. 6th Street
`Fort Lauderdale, Florida 33301
`Thomas M. Lynch,
`IV, Circuit Judge
`
`This cause came on to be heard at the time and
`place aforesaid, when and where the following
`proceedings were reported by:
`
`Tanya Ward English, RPR, CRR, CCP, CBC
`United Reporting,
`Inc.
`1218 S.E. 3rd Avenue
`Fort Lauderdale, Florida 33316
`954-525-2221
`
`Electronically signed by Tanya English (301-376-787-2460)
`
`46605a76-d36c-4532-a32b-011 79393)
`
`

`

`Page 2566
`
`APPEARANCES:
`
`APPEARING ON BEHALF OF THE PLAINTIFF:
`
`SCHLESINGER LAW OFFICES, P.A.
`By:
`JONATHAN R. GDANSKI, ESQ.
`STEVEN J. HAMMER, ESQ,
`CRANE JOHNSTONE, ESQ.
`BRITTANY CHAMBERS, ESQ.
`1212 Southeast 3rd Avenue
`Fort Lauderdale, Florida
`954.467.8800
`
`33316
`
`APPEARING ON BEHALF OF THE DEFENDANT PHILIP MORRIS
`USA,
`INC.:
`
`SHOOK, HARDY & BACON, LLP
`By: WALTER R. COFER, ESQ.
`BRUCE R. TEPIKIAN, ESQ.
`2555 Grand Boulevard
`Kansas City, Missouri
`816.474.6550
`
`64108
`
`APPEARING ON BEHALF OF THE DEFENDANT LORILLARD TOBACCO
`COMPANY:
`
`GREENBERG TRAURIG, P.A.
`By:
`MARK F. BIDEAU, ESQ.
`5100 Town Center Circle, Suite 400
`Boca Raton, Florida
`33486
`561.955.7600
`
`APPEARING ON BEHALF OF THE DEFENDANT R.J. REYNOLDS
`TOBACCO COMPANY:
`
`JONES DAY
`By:
`MARK R. SEIDEN, ESQ.
`222 Bast 41st Street
`
`New York, New York
`
`10017
`
`212.326.3451
`
`Electronically signed by Tanya English (301-376-787-2460)
`
`466c5a76-d36c-4532-a32b-0f1793931
`
`

`

`
`
` Page 2567
`
`
`APPEARING ON BEHALF OF THE DEFENDANT LIGGETT GROUP,
`LLC AND VECTOR GROUP,
`LTD.:
`
`
`
`
`KASOWITZ, BENSON, TORRES & FRIEDMAN, LLP
`By: MARIA H. RUIZ, ESQ.
`1441 Brickell Avenue, Suite 1420
`Miami, Florida
`33131
`305.377.1666
`
`Electronically signed by Tanya English (301-376-787-2460)
`
`466c5a76-d36c-4532-a32b-011793931
`
`

`

`INDEX
`
`Page 2568
`
`PROCEEDINGS
`
`PAGE
`
`ROBERT N. PROCTOR, Ph.D.
`
`CONTINUED CROSS~EXAMINATION BY MR. COFER
`
`2572
`
`
`
`Electronically signed by Tanya English (301-376-787-2460)
`
`466c5a76-d36c-4532-a32b-011793931
`
`

`

`
`
`Page 2700
`
`
`1
`A.
`Won't do work, yeah, at that time.
` 2
`Q.
`And so the Surgeon General knew it, it
` was disclosed, and a number of organizations had the
`
`opportunity to veto him or anyone else that was
`
`
`
`
`nominated for the committee; and they did not, right?
` 6
`
`
`
` 9
`So, you know, it was a big event. And
`
`federal -- actually
`
`
`then in 1966,
`Congress passed the
`
`
`'65. Congress passed the federal cigarette labeling
`11
`
`
`
`12
`act and determined that a caution label would go on
`
`the pack,
`
`right?
` 14
`A.
`That's right.
` 15
`QO.
`And Congress mandated the exact
`language
`
`7
`
`A.
`
`QO.
`
`That's right.
`
`Okay.
`
`So, anyway,
`
`that takes us up to
`
`
`
`
`
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`on the warning?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes.
`
`Where on the pack the warning would go.
`
`That's right.
`
`I used to call it "font" or "typeset."
`
`I'm not sure what the current typeset would be?
`
`et cetera.
`
`22
`A.
`Font.
`
`
`
`
`
`
`23
`Q.
`Where it would be, how big it would be,
`
`
` I've got a demonstrative of that. And
`
`
`
`
`
`Electronically signed by Tanya English (301-376-787-2460)
`
`466c5a76-d36c-4532-a32b-0f1793931
`
`

`

`that’s the label that went on the pack, starting
`
`January of 1966.
`
`"Caution: Cigarette smoking may be
`
`Page 2701
`
`hazardous to your health."
`
`Right?
`
`A.
`
`They didn't prevent them from having a
`
`stronger warning.
`
`Q.
`
`That's an excellent point. Because,
`
`frankly,
`
`the preemption provision didn't come into
`
`place until 1970?
`
`A.
`
`Yeah, but even after the preemption
`
`provision,
`
`they still could have put other warnings
`
`on.
`
`Q.
`
`In any event,
`
`this is the warning that
`
`went on the pack; this is the warning that Congress
`
`mandated. Right?
`
`A.
`
`QO.
`
`A.
`
`Q
`
`A.
`Q
`
`It is.
`
`It was on the packs from 1966 until 1970?
`
`Yes.
`
`Right?
`
`That's right.
`When this warning went on the pack,
`
`the
`
`American Cancer Society actually had a poster that
`
`came out and said: Congress has acted.
`
`The next step
`
`is yours. Right?
`
`A.
`
`That's right.
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
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`16
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`17
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`18
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`19
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`21
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`23
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`24
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`25
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`Electronically signed by Tanya English (301-376-787-2460)
`
`466c5a76-d36c-4532-a32b-011793931
`
`

`

`(Continued in Volume 20.)
`
`Page 2749
`
`CERTIFICATE
`
`STATE OF FLORIDA
`
`COUNTY OF BROWARD:
`
`I, Tanya Ward English, Registered Professional
`
`Reporter and Certified Realtime Reporter, do hereby
`
`certify that the foregoing proceedings were taken
`
`before me at the date and place as stated in the
`
`caption hereto on the first page of this volume; and
`
`that the foregoing computer-aided transcription is a
`
`true record of my stenographic notes taken at said
`
`proceedings.
`
`WITNESS my hand this 5th day of February, 2015.
`
`
`
`ditty
`
`
`
`TANYA WARD ENGLISH
`BAA
`Registered Professional Reporter
`Certified Realtime Reporter
`Florida Professional Reporter
`
`10
`
`11
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`12
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`13
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`14
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`15
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`22
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`23
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`24
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`25
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`Electronically signed by Tanya English (301-376-787-2460)
`
`466c5a76-d360e-4532-a32b-011793931
`
`

`

`EXHIBIT C
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume [1
`
`June 24, 2015
`
`Page 1550
`
`IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
`
`IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
`
`IN RE:
`
`ENGLE PROGENY CASES
`
`COMPLEX LITIGATION UNIT
`
`TOBACCO LITIGATION
`i /
`Pertains to:
`JOHN McCOY
`Case No.:
`08-025806
`
`CASE NO. 08-80000 (19)
`
`eee f
`
`10
`
`11
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`12
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`13
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`14
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`15
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`16
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`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`JURY TRIAL BEFORE THE HONORABLE
`
`JOHN J. MURPHY, III
`CIRCUIT COURT JUDGE
`
`(Volume i1)
`
`Pages 1550 to 1762
`
`June 24, 2015
`Wednesday,
`1:41 p.m. - 5:22 p.m.
`
`Broward County Courthouse
`201 Southeast 6th Street
`
`Courtroom 850
`Fort Lauderdale, Florida
`
`33301
`
`STENOGRAPHICALLY REPORTED BY:
`
`NANCY E. PAULSEN, C.R.R., R.P.R., F.P.R.
`Certificate in Realtime Systems Administration
`Certified Realtime Reporter
`Registered Professional Reporter
`Florida Professional Reporter
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy@specialtyreporting.com
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume{|
`
`June 24, 2015
`
`Page 1551
`
`APPEARANCES:
`On Behalf of the Plaintiff
`SCOTT P. SCHLESINGER, ESQUIRE
`JONATHAN GDANSKI, ESQUIRE
`SCHLESINGER LAW OFFICES, P.A.
`1212 Southeast Third Avenue
`Ft. Lauderdale, Florida 33316
`954-320-9507
`Scott@schlesingerlaw.com
`Jgdanski@schlesingerlaw.com
`
`STEVEN J. HAMMER, ESQUIRE
`LAW OFFICES OF STEVEN J. HAMMER
`
`440 South Andrews Avenue
`Fort Lauderdale, Florida 33301-2830
`954-766-8856
`
`Hammercrimlaw@aol.com
`
`On Behalf of the Defendant R.J. Reynolds and Lorillard
`
`JEFFREY L. FURR, ESQUIRE
`CORY HOHNBAUM, ESQUIRE
`KRING & SPALDING
`100 North Tryon Street
`Suite 3900
`28202
`Charlotte, North Carolina
`704-503-2600,
`jfurr@kslaw.com,
`Chohnbaum@€kslaw.com
`
`JASON E. KEBHFUS, ESQUIRE
`VALENTIN LEPPERT, ESQUIRE
`KATHRYN S. LEHMAN, ESQUIRE
`KING & SPALDING
`1180 Peachtree Street, N.E.
`Atlanta, Georgia
`30309
`404-572-2494,
`jkeehfus@kslaw.com,
`Vleppert@kslaw.com, Klehman@kslaw.com
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy@specialtyreporting.com
`
`1
`2
`3
`
`4
`
`5
`
`6
`
`7 8
`
`9
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`10
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`11
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`12
`13
`14
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`15
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`16
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`17
`
`18
`19
`
`20
`
`21
`
`22
`
`23
`24
`
`25
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume 11
`
`June 24, 2015
`
`Page 1552
`
`|.
`
`APPEARANCES:
`
`On Behalf of Defendant Philip Morris USA,
`
`Inc.
`
`BRUCE R. TEPIKIAN, ESQUIRE
`
`4
`
`2555 Grand Boulevard
`
`Kansas City, Missouri 64108
`
`816-474-6550, Btepikian@shb.com
`
`Also Present:
`
`John McCoy
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy @specialtyreporting.com
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume11
`
`Sune 24, 2015
`
`Page 1553
`
`1
`
`2
`
`Volume 11, June 24, 2015
`
`Pages 1550 to 1762
`
`IN DE X
`
`3 Witness
`
`Page
`
`Plaintiff's
`
`ROBERT NEEL PROCTOR, PhD
`
`DIRECT EXAMINATION (RESUMED)
`
`1563
`
`BY MR. GDANSKI
`
`REPORTER'S CERTIFICATE
`
`1762
`
`EXHIBIT S
`
`No.
`
`Description
`
`Offered Admitted
`
`Plaintiff's
`
`Advertisements for
`
`1564
`
`1565
`
`Parliament and for Kent
`
`cigarettes
`
`Face The Nation
`
`Newspaper articles
`
`1
`
`Articles from The New York
`
`Times
`
`PT00307
`
`Frank Statement
`
`AC356
`
`LIFE magazine
`
`PT00425
`
`Pamphlet put out by Philip
`
`Morris called "Raising Kids
`
`Who Don't Smoke"
`
`Specialty Reporting,Inc.
`941.468.2779 / nancy @specialtyreporting.com
`
`1722
`
`1650
`
`1630
`
`1587
`
`1570
`
`1564
`
`1722
`
`1650
`
`1587
`
`1570
`
`1564
`
`4
`
`5
`
`6
`
`7
`
`8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume 11
`
`
`
`
`
`PT00526
`
`Video ~ The Other Side of
`
`1735
`
`1735
`
`the Smoking Controversy,
`
`The Tobacco Institute
`
`PTO718
`
`Smoking and Health Proposal
`
`1716
`
`PT00978
`
`Cable from Yeaman to
`
`1659
`
`1716
`
`1659
`
`McCormick regarding
`
`Battelle Submission and
`
`June 24, 2015 Page 1554
`oOSNDOOOB®WDB Griffith Developments
`
`
`1576
`1576
`Telegram to presidents
`
`
` PT01044
` PTO1044A
`4 o
`
`
` Seligman RE: Some Comments
`
` about the CTR Program
`bh aa
`
`
` Wakeham to Joseph Cullman
` PT01524
`
` White & Case,
` Bryant, B&W
`
` PT1525
`
`
`
`
`
`
`
`
`
`
`
`
`
`oO
`
`be bh
`
`ho RN
`
`a @
`
`HK an
`
`hb oN
`
`= ~l
`
`_ 0
`
`KO {oO
`
`i) oO
`
`Bo =
`
`i) i)
`
`Bo Ww
`
`BO is
`
`i) on
`
`Newspaper articles
`
`PT1153
`
`Memo from Osdene to
`
`1575
`
`1750
`
`1575 -
`
`1750
`
`PT1408
`
`Document
`
`from Helmut
`
`1726
`
`1726
`
`Letter from Jack Johnston,
`
`1661
`
`1663
`
`to DeBaun
`
`Letter from Ernie Pepples
`
`1721
`
`1721
`
`to Bill Hobb
`
`
`
`PTO01542
`
`Letter from JM Johnston to
`
`1661
`
`1663
`
`Addison Yeaman
`
`PTO1608
`
`Letter from Darr to Hahn
`
`1682VA
`
`Edward R. Murrow show
`
`PTO1682
`
`Edward R. Murrow show
`
`1633
`
`1625
`
`1622
`
`1634
`
`1625
`
`1622
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy @ specialtyreporting.com
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume 11
`
`June 24, 2015
`
`Page 1555
`
`PTO1685CA
`
`’ Clips from CBS News
`
`"On
`
`1673
`
`1673
`
`Smoking and Health”
`
`PT1LVV7A
`
`Videos of Surgeon General
`
`1753
`
`1753
`
`Koop
`
`PTO1913
`
`Memo from Juchatz to Witt
`
`PT01933
`
`Memo from Weissman to
`
`1747
`
`1677
`
`1747
`
`1677
`
`Cullman Re: Surgeon
`
`General's Report
`
`PT1941
`
`Memorandum from Thompson to
`
`1720
`
`1720
`
`Kloepfer regarding Tobacco
`
`and Health Research
`
`Procedural Memo, October
`
`18, 1968
`
`PTO2006
`
`Study by Levy,
`
`from William
`
`1743
`
`1745
`
`Dunn to Osdene
`
`PT02023
`
`Industry Response to
`
`1705
`
`1705
`
`Cigarette/Health
`
`Controversy
`
`PT02050
`
`Tobacco Institute internal
`
`1728
`
`1728
`
`memo
`
`PTO2061
`
`Forwarding Memorandum to
`
`1579
`
`1579
`
`Members of the Planning
`
`Committee
`
`1
`
`2 3
`
`4 5
`
`6
`
`7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy@specialtyreporting.com
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume 11
`
`June 24, 2015
`
`Page 1556
`
`PT2130
`
`Memo from W. Kloepfer, Jr.
`
`1714
`
`1714
`
`(Tobacco Institute) to E.Cc.
`
`Clements, dated April
`
`15,1968
`
`PT02583
`
`Statement by William
`
`1724
`
`1724
`
`Kloepfer
`
`PT02602
`
`White papers
`
`PT02623
`
`White papers
`
`PT02808
`
`TRUE Magazine
`
`1631
`
`1631
`
`1708
`
`1632
`
`1632
`
`1708
`
`PTO02817
`
`Chemical Constituents In
`
`1668
`
`1669
`
`Tobacco and Smoke A
`
`Compilation of Published
`
`Information
`
`PTO2875
`
`Tobacco and Health Research
`
`1654
`
`1654
`
`Volume VI Number 2
`
`PT02876
`
`Tobacco and Health Research
`
`1654
`
`1654
`
`Volume VI, Number
`
`3
`
`PT02883
`
`Tobacco and Health Research
`
`1654
`
`1654
`
`Volume VII, Number 2
`
`PTO02900
`
`White papers
`
`PT03021
`
`Articles from The New York
`
`1631
`
`1630
`
`Times
`
`PT03068
`
`PT3115
`
`Newspaper articles
`
`1650
`
`1632
`
`1630
`
`1630
`
`1650
`
`1
`
`2 3 4 5
`
`6 7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy @specialtyreporting.com
`
`

`

`McCoyv RJ Reynolds
`
`Trial Volume 11
`
`June 24, 2015
`
`Page 1557
`
`PT03122
`
`Articles from The New York
`
`1630
`
`1630
`
`Times
`
`PT3130
`
`Brynner PSA
`
`PTO3165
`
`FTC reports
`
`PT03279
`
`White papers
`
`1733
`
`1689
`
`1631
`
`1733
`
`1689
`
`1632
`
`PT03289
`
`Report on Visit to USA and
`
`1637
`
`1637
`
`Canada,
`
`l7th April - 12th
`
`May 1958
`
`PTO03608
`
`Survey of Cancer Research
`
`1573
`
`1573
`
`with Emphasis upon Possible
`
`Carcinogens From Tobacco
`
`PTO3615
`
`Implications of Battelle
`
`1655
`
`1655
`
`Hippo I
`
`& II And the
`
`Griffith Filter
`
`PT3658
`
`A Study of Public Attitudes
`
`1706
`
`1706
`
`Toward Cigarette Smoking
`
`and the Tobacco Industry in
`
`1970
`
`PTO03681
`
`Tobacco & Health R&D
`
`1642
`
`1642
`
`Approach Presentation to
`
`R&D Committee by Dr. H
`
`Wakeham
`
`PT03695
`
`Tobacco Industry Research
`
`1616
`
`Committee Meeting January
`
`18, 1954
`
`Specialty Reporting, Inc.
`941.468.2779 / nancy@specialtyreporting.com
`
`1
`
`2 3
`
`4
`
`5
`
`6
`
`7 8 9
`
`10
`
`Li
`
`12
`
`13
`
`; 14
`
`15
`
`16
`
`1?
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`McCoy v RJ Reynolds
`
`Trial Volume 11
`
`June 24, 2015
`
`Page 1558
`
`PT03709
`
`The Smoking and Health
`
`1648
`
`1649
`
`Problem —- A Critical and
`
`Objective Appraisal by
`
`Rodgman
`
`PT3785
`
`Bowling, Facts versus
`
`1615
`
`1615
`
`Fancy, February 26, 1954
`
`PT03870
`
`FTC Report to Congress
`
`1682
`
`1682
`
`Pursuant To The Federal
`
`Cigarette Labeling and
`
`Advertising Act
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`Dwyer video clip
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`Videos of Surgeon General
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`PT4692
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`PT4725
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`Koop
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`PT5457
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`Talman PSA
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`1738
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`1753
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`1733
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`PTO09056
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`Articles from The New York
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`Times
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`1753
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`1733
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`1630
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`PT9105
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`Specialty Reporting, Inc.
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`

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`McCoyv RJ Reynolds
`Trial Volume 11
`June 24, 2015
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`
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`content of cigarette smoke was promoted extensively.
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`It
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`
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`has been stated that this promotional campaign,
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`the tar derby, coupled with concern over the hazards of
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`filter to a cigarette is,
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`in and of itself,
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`some kind of
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`Page 1685
`termed
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`
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`
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`smoking, suggested that," quote, "the mere addition of a
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` oOFPWHO
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`
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`claim or assurance relating to the health aspects of
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`smoking.
`
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`"This belief appears to be widely heldthat
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`filter cigarettes are less hazardous to health than
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`A recent study by Roswell Park
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`regular cigarettes.
`Memorial Institute indicates,
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`that many of the
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`however,
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`most popular brands of filter cigarettes contain as much
`or more tar and nicotine as many brands of non-filter
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` cigarettes."
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`historic