1 1 CAUSE NO. 26294 2 SHANNA SHIPMAN A/N/F OF ) IN THE DISTRICT COURT OF 3 SHANNON MOORE, A MINOR, ) Plaintiffs, ) 4 ) VS. ) JOHNSON COUNTY, TEXAS 5 ) PHILIP MORRIS COMPANIES,) 6 INC., PHILIP MORRIS ) INCORPORATED, PHILIP ) 7 MORRIS U.S.A., AND ) SHELLY MOORE, ) 8 Defendants ) 18TH JUDICIAL DISTRICT 9 10 11 12 13 ORAL DEPOSITION 14 OF 15 JERRY WHIDBY 16 17 18 19 20 21 TAKEN AUGUST 28, 1996 22 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 2 1 I N D E X 2 PAGE 3 EXHIBIT INDEX - - - - - - - - - - - - 3 4 APPEARANCES - - - - - - - - - - - - - 4 5 INFORMATIONAL PARAGRAPH - - - - - - - 5 6 ERRATA PAGE - - - - - - - - - - - - - 6 7 8 THE WITNESS: JERRY WHIDBY 9 Examination By Mr. Grisham - - - 7 Examination By Mr. Markey - - - 187 10 Further Examination By Mr. Grisham 194 11 12 13 DEPOSITION CONCLUDED - - - - - - - - 205 14 WITNESS SIGNATURE PAGE - - - - - - - 206 15 REPORTER'S CERTIFICATE PAGE - - - - - 207 16 17 18 19 20 21 22 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 3 1 E X H I B I T I N D E X 2 PAGE 3 EXHIBIT NO. DESCRIPTION MARKED 4 1 Notice of Deposition 7 5 2 Philip Morris U.S.A. 59 Interoffice Correspondence 6 dated January 31, 1980 7 3 Curriculum Vitae 143 8 4 Affidavit 144 9 5 Affidavit 144 10 6 Affidavit 144 11 7 Memorandum dated 144 August 10, 1992 12 8 Philip Morris U.S.A. 193 13 Five-Year Plan 14 9 Strategic Plan from 193 Philip Morris U.S.A. 15 Research & Development 16 17 18 19 20 21 22 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 4 1 A P P E A R A N C E S 2 For The Plaintiff: 3 Waltman & Grisham 4 3833 S. Texas Avenue, Suite 150 Bryan, Texas 77802 5 By: LYNN GRISHAM 6 For The Defendant, Philip Morris Companies, 7 Inc., et al: 8 Carrington, Coleman, Sloman & Blumenthal 200 Crescent Court, Suite 1500 9 Dallas, Texas 75201 10 By: MIKE BRADEN 11 For The Defendant, Philip Morris Companies, Inc., et al: 12 Shook, Hardy & Bacon 13 1200 Main Street Kansas City, Missouri 64105 14 By: WILLIAM CRAMPTON 15 Also By: JOHN FRASER Also By: LEE STANFORD 16 For the Defendant, Shelly Moore: 17 St. Clair & Markey 18 Summit Office Building 1200 Summit Avenue, Ste. 620 19 Fort Worth, Texas 76102 20 By: EDWARD MARKEY 21 JERRY WHIDBY, 22 The Witness 23 TAMARA J. BRAUN, Certified Shorthand Reporter 24 ALSO PRESENT: Tim Bishop, Videographer 25 Steve Discher MONICA WEIDMANN & ASSOCIATES (800) 969-2752 5 1 ANSWERS AND DEPOSITION OF DR. JERRY WHIDBY, 2 a witness called by the Plaintiffs, taken before 3 Tamara J. Braun, a Certified Shorthand Reporter in 4 the State of Texas, on the 28th day of August, 5 1996, between the hours of 9:30 a.m. and 4:30 p.m.; 6 in the offices of Hunton & Williams, East Tower, 7 951 East Byrd Street, Richmond, Virginia, pursuant 8 to the notice of counsel for the respective parties 9 as hereinafter set forth. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 6 1 CHANGES MADE TO DEPOSITION 2 Rule 205, "No erasures or obliterations of 3 any kind are to be made to the original testimony as transcribed by the deposition officer. Any 4 changes in form or substance which the witness desires to make shall be furnished to the 5 deposition officer by the witness, together with a statement of the reasons given by the witness for 6 making such changes." Please enter the page number, line number, 7 and the reason for such change or correction. 8 Page/Line Correction Reason for Correction 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JERRY WHIDBY MONICA WEIDMANN & ASSOCIATES (800) 969-2752 7 1 (Whidby Exhibit No. 1 was 2 marked for identification.) 3 EXAMINATION 4 BY MR. GRISHAM: 5 Q. Dr. Whidby, would you state your name for the 6 record? 7 A. Jerry Frank Whidby. 8 MR. CRAMPTON: I just wanted to state 9 for the record that this deposition is confidential 10 in accordance with the protective order that's been 11 entered in this court and is to be maintained in 12 confidence according to that order. 13 The entire deposition should be maintained 14 in confidence according to the order for 30 days 15 after the transcript is received, after which time, 16 Philip Morris will designate which portions are and 17 which portions aren't confidential. I just wanted 18 to state it for the record. 19 MR. GRISHAM: Correct. 20 Q. (By Mr. Grisham) Dr. Whidby, where do you 21 reside? 22 A. Urbanna, Virginia. 23 Q. How long have you lived at that address? 24 A. About four years. 25 Q. Four? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 8 1 A. Yes, sir, about four years. 2 Q. How are you employed? 3 A. I'm employed by Philip Morris. 4 Q. What specific Philip Morris entity are you 5 employed by? 6 A. Philip Morris U.S.A. 7 Q. How long have you been employed by Philip 8 Morris U.S.A.? 9 A. I'm into my 25th year. A little over 24 10 years. 11 Q. Have you at any time in the past worked for 12 any Philip Morris entity other than U.S.A.? 13 A. No, sir, I don't think so. 14 Q. What is your age? 15 A. I'm 52 right now. I was born in 1943. 16 Q. Do you recall the -- your date of hire with 17 Philip Morris U.S.A.? 18 A. No, sir, I don't. 19 Q. It was around 1971, though, correct? 20 A. No, sir. It was 1972. 21 Q. '72. Prior to becoming employed with Philip 22 Morris U.S.A., what sort of endeavors were you 23 involved in professionally or occupationally? 24 A. Prior to coming to Philip Morris, I was a 25 chemist. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 9 1 Q. Where did you work as a chemist, prior to 2 going to work for Philip Morris? 3 A. I worked with General Electric. 4 Q. How long were you with G.E.? 5 A. Approximately a year. 6 Q. And you worked for G.E. as a chemist? 7 A. Yes, sir. 8 Q. Prior to going to work for G.E., where were 9 you employed? 10 A. With the U.S. Army. 11 Q. What did you do for the Army? 12 A. I was a chemist. 13 Q. How long were you with the Army? 14 A. Not quite two years. 15 Q. What did -- what sort of projects did you work 16 on in the Army? 17 A. We evaluated chemical agents. 18 Q. What sort of chemical agents did you evaluate? 19 A. We evaluated chemical agents that were used in 20 various battlefield situations. 21 Q. Prior to going into the Army, were you in 22 school? 23 A. Yes, sir. 24 Q. If you can, would you outline for me briefly 25 your educational background including degrees that MONICA WEIDMANN & ASSOCIATES (800) 969-2752 10 1 you received and where you received them? 2 A. I received a Ph.D. in chemistry from the 3 University of Georgia in 1970. In 1965 I received 4 a B.S. degree in chemistry from North Georgia 5 College. 6 Q. Where is that located? 7 A. Dahlonega, Georgia. 8 Q. Prior to entering into the Army, were you 9 employed in any capacity, other than summer jobs, 10 as a student? 11 A. While I was in graduate school, I was -- had 12 an assistantship, and I received some funds from 13 that. 14 Q. So you worked there at the university? 15 A. Yes, sir. 16 Q. I'm not really familiar with the chemistry 17 discipline. But while you were you in school, did 18 you focus your studies in any one particular area 19 within chemistry? 20 A. Yes, sir. 21 Q. What area was that? 22 A. Analytical physical chemistry. 23 Q. Did you prepare a thesis? 24 A. Yes, sir. 25 Q. What was the topic of that thesis? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 11 1 A. Nuclear Magnetic Resonance Studies of Various 2 Compounds. 3 MR. MARKEY: I'm sorry, various what, 4 sir? 5 THE WITNESS: Compounds. 6 Q. (By Mr. Grisham) And that was published? 7 A. Yes, sir. 8 Q. Where would one be able to get a copy of 9 that? Is there a cite for it? 10 A. I don't know exactly. 11 Q. You don't remember what publication it was 12 published in? 13 A. I don't know. I assume the University of 14 Georgia has a copy of it in their library. It's an 15 assumption on my part. 16 Q. Have you ever published any other treatises, 17 papers, research projects or anything of that 18 nature in the public realm? 19 A. Yes, sir. 20 Q. Starting with the earliest of those, could you 21 tell me the titles -- or if you can't recall the 22 exact titles, perhaps the subjects leading up to 23 today? 24 A. I can't recall the titles of any of them. 25 Most of them dealt with nuclear magnetic resonance MONICA WEIDMANN & ASSOCIATES (800) 969-2752 12 1 studies of various chemical compounds. 2 Q. Just so that I'll understand what we're 3 talking about, could you give me, to the best of 4 your ability, a layman's account of what nuclear 5 magnetic resonance studies are? 6 A. Nuclear magnetic resonance studies are the 7 evaluation or determination of the structure of 8 chemical compounds in solution, generally. 9 Sometimes you can do it with solid materials, but 10 you look at the chemical specie, what it is. 11 Q. Does it allow you, through that study, to 12 speciate various chemicals in a very minute form? 13 A. No, it does not, not in general. 14 Q. What is the practical function or utility of 15 nuclear magnetic resonance studies in the field of 16 chemistry? 17 A. It's very varied. 18 Q. It's very -- 19 A. It's a wide array of applications. 20 Q. Can you give me some examples of some of the 21 utilitarian functions of those studies today? 22 A. Today, perhaps the most utilitarian is the 23 magnetic imaging of human bodies for medical 24 purposes. 25 Q. You mentioned that most of the articles that MONICA WEIDMANN & ASSOCIATES (800) 969-2752 13 1 you had published dealt with that particular -- 2 that particular sort of study. How many did you -- 3 did you publish in that area? 4 A. I don't recall. 5 Q. Would it be 20 or more? 6 A. Probably. 7 Q. Less than 50? 8 A. Probably. 9 Q. I'm just trying to get a handle on the 10 volume. 11 A. Yes, sir. I really don't recall. 12 Q. Can you tell me where these publications might 13 be found? 14 A. Various Peer Review journals. 15 Q. To the best of your ability name off what 16 those journals are. 17 A. I believe one of them was Journal of American 18 Chemical Society. I believe another one was 19 Journal of Organic Chemistry. I believe another 20 one was Analytical Chemistry. I believe another 21 one might be Analytical Letters. Another one might 22 be Bytraga. I don't recall any additional ones. 23 Q. Do you recall any papers or treatises or 24 studies that you've published outside the area of 25 magnetic resonance studies? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 14 1 A. I believe I have, but I can't recall. 2 Q. In the course of your employment with Philip 3 Morris U.S.A. or any of its related entities, have 4 you conducted any research outside the United 5 States? 6 A. No, sir, not that I recall. 7 Q. Have you overseen or directed or received 8 results from research conducted by Philip Morris or 9 related entities that was conducted outside the 10 United States? 11 MR. CRAMPTON: Are you talking about 12 ignition propensity research? 13 MR. GRISHAM: Yes. 14 MR. CRAMPTON: Limit it to cigarette 15 ignition propensity, generally. 16 MR. GRISHAM: Yes. 17 Q. (By Mr. Grisham) Or designs related to 18 ignition propensity projects? 19 A. I'm sorry, would you repeat the question? 20 Q. I was afraid you were going to ask that, 21 Dr. Whidby. 22 MR. GRISHAM: Could you read that back, 23 because it was a pretty long question. 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 15 1 (Whereupon the previous question was read 2 back as follows: "Have you overseen or 3 directed or received results from research 4 conducted by Philip Morris or related 5 entities that was conducted outside 6 the United States?") 7 A. I don't know. 8 Q. (By Mr. Grisham) Why do you not know? 9 A. I don't know that all the data that I've 10 received was from the U.S. I don't -- I just don't 11 know. 12 Q. You don't know one way or the other? 13 A. No, sir, not that I -- I can't say. 14 Q. Do you know whether or not Philip Morris or 15 any related entities conducted or have conducted 16 ignition propensity studies outside the United 17 States? 18 MR. CRAMPTON: I'm sorry to interrupt. 19 But by "related entities," do you mean Philip 20 Morris incorporate entities? Or by "related 21 entities," do you mean something beyond that? 22 MR. GRISHAM: I do. And particularly 23 what I'm thinking about is maybe subcontractors, 24 companies that he may contract with to do work for 25 him. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 16 1 MR. CRAMPTON: If I could just try to 2 clear up just one thing. There has been some 3 research that's been done by this group called 4 CORESTA that you talked about yesterday. Some 5 members of CORESTA are not within the United 6 States. So if you could sort of exclude that, it 7 would make the question easier for the witness, I 8 think. 9 THE WITNESS: I need to ask a question 10 of you, too, about -- 11 MR. CRAMPTON: Can we go off the record 12 for a minute? 13 MR. GRISHAM: Sure. 14 (Brief recess.) 15 MR. CRAMPTON: Lynn, in addition to the 16 CORESTA work that some of the members of which are 17 outside of the United States, one of the members of 18 a thing called the Joint Venture is Brown & 19 Williamson. And in connection with that, B.A.T., 20 which is in London, may have done some research. I 21 assume you're excluding that? 22 MR. GRISHAM: Those are all things I 23 was going to ask about today. 24 MR. CRAMPTON: Okay. If you could -- 25 in the course of the questioning -- the way you've MONICA WEIDMANN & ASSOCIATES (800) 969-2752 17 1 worded the question makes it hard for the witness 2 to answer it, because he's thinking about B.A.T. 3 research that may have been done for CORESTA or for 4 the Joint Venture. 5 If you're asking about is Philip Morris 6 doing ignition propensity research outside of the 7 United States, you know, if you could limit it to 8 that, it would be easier for the witness to answer 9 the question. 10 MR. GRISHAM: Yeah. I'll try to do -- 11 I'll try to do a good job of asking the questions 12 so we can answer it. 13 Q. (By Mr. Grisham) Obviously what I'm aiming at 14 in the course of these questions are to try to 15 determine the location of any research that's been 16 undertaken on any ignition propensity project. And 17 I understand from talking to counsel that some 18 members of CORESTA live outside the United States, 19 and that created some difficulty for you. Perhaps 20 B.A.T. had conducted a research, and that's not a 21 Philip Morris entity. 22 So I'm going to exclude in my question the 23 CORESTA project for now and any of the B.A.T. 24 research for now, and ask if other than those 25 circumstances, Philip Morris or any related entity MONICA WEIDMANN & ASSOCIATES (800) 969-2752 18 1 has conducted, overseen or asked for research to be 2 conducted outside the United States on any ignition 3 propensity cigarette up until today? 4 A. Not to the best of my knowledge. 5 Q. While we're on the topic, we might as well go 6 ahead and talk about CORESTA and the Joint Venture 7 project. 8 First of all, give me a rough idea of what 9 the CORESTA group is or was. 10 A. Which CORESTA group? 11 Q. I take it by your answer there have been more 12 than one? 13 MR. CRAMPTON: There's a CORESTA task 14 force on ignition propensity. There are also 15 CORESTA task forces on many other subjects. 16 MR. GRISHAM: Fair enough. 17 Q. (By Mr. Grisham) What is CORESTA as a general 18 global entity? 19 A. CORESTA is a scientific body that's 20 constituted, as I understand, out of France. It 21 involves, both, members of the tobacco industry as 22 well as suppliers of the tobacco industry--flavor 23 houses, filter suppliers, you name it. It's a wide 24 array of different people. It's an international 25 organization all over the world. And they direct MONICA WEIDMANN & ASSOCIATES (800) 969-2752 19 1 their research efforts at tobacco-type research. 2 Q. One facet of that being a task force on 3 ignition propensity? 4 A. Yes, there is a task force on ignition 5 propensity. 6 Q. Is CORESTA an acronym for some name? 7 A. Yes, sir, it is. 8 Q. Can you tell me what it is? 9 A. No, sir, I can't. 10 Q. Is it some -- is it a French name? 11 A. Yes, sir, it is. 12 Q. How did CORESTA come into existence, if you 13 know? 14 A. I don't know. 15 Q. Do you know about when CORESTA came to be? 16 A. No, sir, I don't. 17 Q. Do you know how CORESTA is funded? 18 A. No, sir, I don't. 19 Q. Is Philip Morris U.S.A. a member of CORESTA? 20 A. Yes, sir, it is. To the best of my knowledge, 21 it is a member. 22 Q. Does CORESTA, as a project, have an office, if 23 you will; in other words, a complex that is 24 dedicated to it and the research it undertakes? 25 A. I think it does. I'm not -- I think it does. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 20 1 Q. Is that in France? 2 A. Yes, sir, I believe so. This is to the best 3 of my knowledge. I'm not positive about that 4 either. 5 Q. I understand. I'm just asking for your best 6 information. 7 A. Right. 8 Q. Do you know whether or not CORESTA has any 9 research facilities dealing with ignition 10 propensity in any other European countries? 11 MR. CRAMPTON: Objection; it sounds as 12 though implied in that is there is a research 13 facility on ignition propensity in France -- 14 MR. GRISHAM: Yeah, it was. It was -- 15 MR. CRAMPTON: -- and that is not the 16 case. 17 MR. GRISHAM: Okay. Thank you. 18 Q. (By Mr. Grisham) Does CORESTA have any 19 facilities it dedicates to ignition propensity 20 research anywhere? 21 A. Not to my knowledge. 22 Q. Does it draw upon the research of its various 23 members in that area? 24 A. What do you mean by "that area"? 25 Q. Ignition propensity. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 21 1 A. To the best of my knowledge it does, yes. 2 Q. Is the ignition propensity task force, as a 3 part of CORESTA, a task force that included members 4 employed by Philip Morris U.S.A.? 5 A. Yes. To the best of my knowledge it does. 6 Q. Do you recall who those persons are or have 7 been in the past? 8 A. I've been the primary member of the CORESTA 9 task force. 10 Q. For how long? 11 A. I don't recall exactly. 12 Q. Can you give me your estimate within -- it may 13 be, you know, greater than five years, less than a 14 year? Just any broad estimate? 15 A. Excluding the first meeting that occurred, I 16 think I've -- I think I've been present at all the 17 meetings. 18 Q. For a span of about how many years or months 19 or? 20 A. Without being precise about it, it's got to be 21 something in the order of five or six more years. 22 I don't know. 23 Q. We're not talking about a year or two? 24 A. No, sir. 25 Q. It's longer than that? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 22 1 A. Yes. 2 Q. Was your involvement with CORESTA something 3 that you began after Project Hamlet had wound down 4 at Philip Morris? 5 A. Please repeat, I'm sorry. 6 Q. Sure. Did your beginning to work with the 7 ignition propensity task force at CORESTA come 8 about at or near the time the Hamlet project was 9 ending or winding down? 10 A. I don't recall. 11 Q. Does the Tobacco Institute have any membership 12 on the CORESTA -- any of the CORESTA teams? 13 A. Not that I'm aware of, but I don't know. 14 Q. Is there any membership of academic folks from 15 the universities on any of the CORESTA projects? 16 A. Yes, sir. 17 Q. And particularly the ignition propensity 18 project? 19 A. I'm not aware of anybody. 20 Q. Okay. Does CORESTA have any membership -- 21 A. Not that I can recall. That I can recall -- 22 I'm not aware of anybody that I can recall. 23 Q. Fair enough. Does CORESTA have any membership 24 that you're aware of from any governmental entities 25 or bodies? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 23 1 A. I don't know. 2 Q. How did CORESTA come to be formed? 3 MR. CRAMPTON: You mean the task force 4 on ignition propensity or the overall 5 organization? 6 MR. GRISHAM: I was talking -- 7 MR. CRAMPTON: Because you've already 8 asked about the overall organization, but I don't 9 care if you reask it. 10 MR. GRISHAM: I don't want to repeat. 11 I just... 12 Q. (By Mr. Grisham) Do you have any knowledge of 13 how the overall concept of CORESTA came about, if 14 it was the branch out of one person? 15 A. No, sir, I don't. I'm sorry. 16 Q. Now, with respect to the task force on 17 ignition propensity, do you know how it came into 18 existence? 19 A. No, sir, not exactly. 20 Q. I may have to ask you to give me as much 21 information as you have. I know you don't know 22 exactly, but if you have some intuitive idea of how 23 it came about, I'd like to know your best thoughts 24 on that. 25 A. CORESTA task forces are generally formed at MONICA WEIDMANN & ASSOCIATES (800) 969-2752 24 1 the general meeting of the CORESTA group. Somebody 2 recommends that it's -- that some work be done in a 3 particular area and it's taken under advisement, as 4 I understand, by the scientific commission and the 5 task force set in place. 6 To the best of my knowledge, that's how this 7 occurred, but I really don't know. 8 Q. Are any of the membership companies allowed 9 access to the fruits of the research of CORESTA and 10 particularly the ignition propensity project? 11 MR. CRAMPTON: By "fruits" you mean 12 results of the research? 13 MR. GRISHAM: Yeah. 14 A. What was the first part of your -- what was 15 the question? 16 Q. (By Mr. Grisham) Are the members -- the 17 entity members of the CORESTA organization or 18 project, as you might call it, given the 19 opportunity to access the results of research on 20 ignition propensity and the results of the 21 research? 22 A. Yes, sir, to the best of my knowledge they 23 are. 24 Q. Is the ignition propensity task force a 25 vehicle by which different companies can share MONICA WEIDMANN & ASSOCIATES (800) 969-2752 25 1 information on ignition propensity studies? 2 A. What we do is limit it primarily to -- well, 3 it's limited to what we do in the CORESTA group. 4 Q. So the members of the group have access to the 5 research, but otherwise it's not available to the 6 companies that are members of the group? 7 A. No, sir. I don't think that's what I said or 8 implied. 9 Q. Okay. I misunderstood, I'm sorry. What I'm 10 trying to understand is you, on behalf of Philip 11 Morris, and, I assume, Brown & Williamson probably 12 has a representative; Leggett probably has a 13 representative, correct? 14 A. I don't know whether Leggett has a 15 representative or not. 16 MR. CRAMPTON: That's a multiple 17 question. It's actually three different questions. 18 And if you broke it down, you'd probably get two 19 yeses and a no. 20 Q. (By Mr. Grisham) Okay. Well, what I'm trying 21 to understand is there are various companies that 22 are members of the task force, correct? 23 A. Yes, sir, there are various companies that are 24 members of the task group. 25 Q. And the information they're hoping to achieve MONICA WEIDMANN & ASSOCIATES (800) 969-2752 26 1 -- that you're hoping to achieve will be of 2 benefit to your employer, correct? 3 A. Information, yes. To the best of my 4 knowledge, that's the reason I'm on the task force. 5 Q. Correct. And what I assumed--and perhaps I 6 shouldn't have jumped to this conclusion--but I 7 assume the information that becomes available to 8 you as a member of the task force is something that 9 is available to Philip Morris U.S.A. to use, 10 evaluate, discount, if they want to, in terms of 11 designing cigarettes? 12 MR. CRAMPTON: Do you understand the 13 question, Jerry? 14 THE WITNESS: No, not really. 15 MR. CRAMPTON: It's a little bit 16 complicated and -- 17 MR. GRISHAM: Let me try again. 18 MR. CRAMPTON: -- I can try to 19 reformulate it for you. 20 MR. GRISHAM: I will. I'll try again. 21 Q. (By Mr. Grisham) In the course of working on 22 the ignition propensity project at CORESTA, I 23 assume that ideas or, perhaps, research results 24 become known to the members of the project; am I 25 correct in that? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 27 1 A. Yes. 2 Q. Is that information something that you pass 3 along to Philip Morris U.S.A. and the other groups 4 that you might work with on ignition propensity 5 studies? 6 A. In general, yes. 7 Q. Is there some information that you're not 8 allowed to pass on or that for some reason cannot 9 pass from the CORESTA task force to Philip Morris 10 and the various groups that are working on ignition 11 propensities? 12 A. No, sir, not that I'm aware of. 13 Q. Has CORESTA and the different studies and 14 research that has been undertaken through CORESTA, 15 in fact, provided Philip Morris U.S.A. with 16 valuable research and data in terms of ignition 17 propensity studies? 18 A. Yes, sir, I believe so. 19 Q. As part of any of the CORESTA projects 20 research, have commercial Philip Morris brands of 21 cigarettes been tested for ignition propensity 22 qualities? 23 MR. CRAMPTON: I'm sorry, could you 24 just repeat the question for me? I was taking a 25 note. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 28 1 MR. GRISHAM: Yeah. 2 Q. (By Mr. Grisham) Through the CORESTA project 3 and any research undertaken in conjunction with the 4 project, have any Philip Morris commercial brand 5 cigarettes been tested for their ignition 6 characteristics, propensities or qualities? 7 A. No, sir, not to my knowledge. 8 Q. Have any of the other CORESTA member 9 commercial brand cigarettes been tested for 10 ignition componentry, qualities, characteristics? 11 A. No, sir, not to my knowledge. 12 Q. If I understood you a moment ago, CORESTA 13 doesn't have an ignition propensity laboratory -- 14 testing laboratory; was I right? 15 A. To my knowledge, they do not have such a 16 laboratory. 17 Q. If a CORESTA project, test project, is 18 formulated and the parameters are set and testing 19 is undertaken, where would the testing take place 20 for ignition propensity? 21 MR. CRAMPTON: Objection. Sorry, I'm 22 just trying to make it very clear. You said where 23 would the testing take place. And it depends -- I 24 mean, you're talking about apparently something 25 that hasn't happened, so it's hard for him to say MONICA WEIDMANN & ASSOCIATES (800) 969-2752 29 1 on that. 2 If you want to ask where did the testing 3 take place, he would know that. 4 MR. GRISHAM: Well, that's what I 5 intended to ask. Let me reformulate the question. 6 Maybe I can do a better job and not confuse the 7 witness. 8 Q. (By Mr. Grisham) Has any testing been 9 undertaken under the CORESTA project for ignition 10 propensity in a laboratory? 11 A. Yes, sir. 12 Q. Where has that testing been undertaken? 13 A. In various locations. 14 Q. Tell me where they are. 15 A. I'm not sure I can tell you all the locations. 16 Q. Tell me as many as you can. 17 A. One of them is here in Richmond in our 18 laboratory. I suppose the rest -- the data came 19 from the rest of the organization, so I don't know 20 the exact location where they did the work because 21 I wasn't present for the work. 22 But there was -- there has been data 23 reported from Japan Tobacco. 24 Q. What? 25 A. Japan Tobacco. Ecusta, Reynolds, Lorilord, MONICA WEIDMANN & ASSOCIATES (800) 969-2752 30 1 Brown & Williamson, that I recall. 2 Q. And do you have access to that data as a 3 member of the project? 4 A. I have access to the data that was given to 5 the CORESTA group. 6 Q. Is that data contained in documentary or 7 electronic form or both? 8 A. It's a multipart question. 9 Q. Okay. Let's take it one by one. Is the data 10 from the CORESTA project maintained in documentary 11 form in any sense? 12 A. Yes, sir. 13 Q. In terms of the documentary data that you have 14 access to, is that contained -- is that here in 15 Richmond? 16 A. Yes, sir. 17 Q. Is any of the data from the CORESTA project 18 maintained in electronic form, whether it be on 19 CD-ROM, on tape, on video format, any electronic 20 format? 21 A. I don't know. 22 Q. About 15 or 20 minutes ago we were talking 23 about research outside the United States and you 24 mentioned the CORESTA project and also the B.A.T. 25 research. Has Philip Morris U.S.A. had access to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 31 1 any ignition propensity research conducted by or on 2 behalf of B.A.T.? 3 A. I don't know. 4 Q. When we were going through that line of 5 questioning about related entities, ignition 6 propensity research, both CORESTA and B.A.T. were 7 mentioned. What did you mean when you mentioned 8 B.A.T.? What idea was in your mind that prompted 9 you to mention the B.A.T. research or data? 10 A. B.A.T. is a member of the CORESTA group. 11 Q. Except for B.A.T.'s membership in CORESTA and 12 the information it may have provided to CORESTA 13 members, are you aware of any other research on 14 ignition propensity that has emanated from B.A.T. 15 that Philip Morris U.S.A. has had access to it? 16 A. No, sir, not to my knowledge. 17 Q. Are ignition propensity studies still being 18 undertaken by the CORESTA project? 19 A. Yes, sir. 20 Q. Are there any planned or proposed ignition 21 propensity studies through CORESTA now in the 22 works? 23 A. Could you help me with what "in the works" 24 means? 25 Q. In the planning stages, proposed. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 32 1 A. Yes. 2 Q. What is -- what are the parameters of the 3 proposed testing, the parameters and the 4 objectives? 5 A. One of the parameters I know of is to evaluate 6 the ignition propensity in a crevice with various 7 commercial fabrics. 8 Q. Which members are going to undertake 9 responsibility for that testing? 10 A. I don't know. 11 Q. Do you know where that testing will likely be 12 performed? 13 A. No, sir, I don't. 14 Q. How often do you attend meetings of the 15 CORESTA ignition propensity group? 16 A. To my knowledge, I've only missed one. 17 Q. Are they an annual event or monthly special 18 meetings? 19 A. They're generally special meetings, although 20 there is an annual CORESTA meeting. 21 Q. About how often are the special meetings held? 22 A. It's hard to say how often. 23 Q. Would it be at least once a year? 24 A. Historically it's been at least once a year. 25 Q. Would it be at least once a quarter? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 33 1 A. No, sir. 2 Q. Are the meetings of the group usually held in 3 France, or are they in various locations? 4 A. They're generally held in various locations. 5 Q. Have any of the CORESTA ignition propensity 6 project group meetings been held in the United 7 States? 8 A. Yes, sir. 9 Q. Have any of the results of the ignition 10 propensity project through CORESTA been made 11 available to persons or entities outside the group? 12 MR. CRAMPTON: The group being the task 13 force? 14 MR. GRISHAM: Yes. 15 A. Yes, sir. 16 Q. (By Mr. Grisham) Who or to which entities 17 have they been made available? 18 A. All the other members of the CORESTA 19 organization. 20 Q. Outside the CORESTA organization, have the 21 test results or information from the work of the 22 project been revealed to others? 23 A. Yes, sir. 24 Q. To whom? 25 A. Some of the data from the CORESTA work has MONICA WEIDMANN & ASSOCIATES (800) 969-2752 34 1 been published in Peer Review journals. 2 Q. When it's published, is the CORESTA group 3 given credit for it, the publication and the work, 4 under the name CORESTA? 5 A. I don't recall. 6 Q. Has any branch of the federal or any state 7 government been provided information from the 8 CORESTA ignition propensity project? 9 A. Yes, sir. 10 Q. What groups have been provided that 11 information? 12 A. NIST was provided with some of the 13 information. 14 MR. MARKEY: I'm sorry, who? 15 THE WITNESS: NIST, N-I-S-T. 16 MR. MARKEY: Thank you. 17 A. CPSC, probably others. 18 Q. (By Mr. Grisham) What was the context of that 19 information being provided, was it by request of 20 these entities or for some other reason? 21 A. I recall, I believe it was at the request of 22 some of these organizations. 23 Q. Was the CORESTA ignition propensity project 24 developed to counter the studies that the NIST were 25 performing as a result of the Fire-Safe Cigarette MONICA WEIDMANN & ASSOCIATES (800) 969-2752 35 1 Act of 1990? 2 MR. CRAMPTON: Object to the form. You 3 can answer. 4 A. No, sir, I don't think so. 5 Q. (By Mr. Grisham) Was there any effort by the 6 CORESTA ignition propensity project to disprove the 7 NIST work on fire-safe cigarettes? 8 MR. CRAMPTON: Object to form again. 9 You can answer. 10 A. I don't think so. Scientific data is -- 11 generally speaks for itself, and it either is or 12 isn't correct. 13 Q. (By Mr. Grisham) Okay. Are you a member of 14 any associations or societies or fellowships in the 15 area of chemistry or tobacco science? 16 A. Yes, sir. 17 Q. Give me a list of those memberships, if you 18 will, please. 19 A. I'm a member of the American Chemical 20 Society. I'm a member of the A.S.T.M., the 21 American Society of Testing Materials. I can't 22 recall others, but I'm... 23 Q. There may be others? 24 A. Yes, sir. I'm also a member of CORESTA. 25 Q. Has the CORESTA project dealt with the issues MONICA WEIDMANN & ASSOCIATES (800) 969-2752 36 1 of subjective -- the subjective components of the 2 cigarette design? 3 A. No, sir, not to my knowledge. 4 Q. Has it dealt with the issues of commercial 5 feasibility of reduced ignition propensity 6 cigarettes? 7 A. No, sir, not to my knowledge. I assume you're 8 referring to CORESTA? 9 Q. Yes. We'll talk about your other research 10 work in a minute. Right now I'm just talking about 11 CORESTA. 12 Have you received any awards or honorariums 13 in the field of chemistry? 14 A. No, sir, not that I recall. 15 Q. Have you ever worked on any research project 16 that -- that was funded, at least in part, by 17 government grants? 18 A. Would you restate that, please? 19 Q. Certainly. Have you ever worked on any 20 research project that was funded in any respect by 21 government grants? 22 A. Yes, sir. 23 Q. Tell me what those have been. 24 A. When I was working for General Electric, it 25 was part of NASA. When I was working for the Army, MONICA WEIDMANN & ASSOCIATES (800) 969-2752 37 1 it was part of the U.S. Government. 2 Q. Any others? 3 A. Not that I can recall. 4 Q. Any grants dealing with -- 5 A. Excuse me, except for perhaps when I was in 6 graduate school. 7 Q. Have any of the projects you've worked on 8 dealing with tobacco studies been funded in any 9 part by governmental grants? 10 A. Not that I'm aware of, no, sir. 11 Q. Do you have any experience teaching? 12 A. Yes, sir. 13 Q. What has that experience been? 14 A. Part of my graduate courses or graduate 15 experience, I taught, like all graduate students 16 do. I also was an adjunct faculty member of V.C.U. 17 here in Richmond when I first came to Richmond. 18 Q. What did you teach at V.C.U.? 19 A. Chemistry. 20 Q. When was the last time you were in a 21 classroom? 22 A. I don't recall. 23 Q. Has it been greater than five years ago? 24 A. Yes, sir. 25 Q. Greater than ten? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 38 1 A. I really don't recall. It was an infrequent 2 occurrence most of the time. 3 Q. Typically when you would lecture at V.C.U., 4 was it on an invitation for a specific -- 5 A. Yes, sir. 6 Q. -- time as opposed to teaching an entire 7 class? 8 A. It was both. 9 Q. Okay. Have you ever given your deposition 10 before? 11 A. Have I ever given a deposition before, yes, 12 sir. 13 Q. On how many occasions? 14 A. I don't recall. 15 Q. More than ten? 16 A. No, sir. 17 Q. More than five? 18 A. I don't recall. 19 Q. Something less than ten? 20 A. Yes, sir. 21 Q. Okay. Starting with the most recent 22 deposition before today, to the best of your 23 recollection, tell me when you -- or under what 24 circumstances you gave a deposition? 25 A. I gave a deposition to the Justice MONICA WEIDMANN & ASSOCIATES (800) 969-2752 39 1 Department. I can't recall the date of that. 2 Q. Was it within the last year? 3 A. I don't think so. 4 Q. The last three years? 5 A. Yes, sir, I think so. Prior to that -- I'm 6 sorry. 7 Q. I'm sorry. 8 A. Go ahead. 9 Q. Was there any discussion of ignition 10 propensity in that deposition? 11 A. Yes, sir. 12 Q. Who was interrogating you at the Justice 13 Department? 14 A. I don't recall his name. 15 Q. Was there a single person, versus a panel? 16 A. There was both. 17 Q. Did you appear before employees of the 18 Department of Justice for this deposition, or was 19 it in a more private setting like we're at today? 20 A. I don't know. 21 Q. Was there a lawsuit pending that this 22 deposition arose from? 23 A. I think so. 24 Q. Do you know what the style or title of that 25 lawsuit was? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 40 1 A. I don't know what's meant by "style." 2 Q. The name, the parties, like Jones versus 3 Philip Morris? 4 A. No, I don't. 5 Q. Do you know what the circumstances of the 6 lawsuit were? 7 A. In general, I think so. 8 Q. Can you relate that to me, please? 9 A. As I understand it, we were under 10 investigation for working with the competition. 11 Q. It was an antitrust sort of -- 12 A. To the best of my knowledge, something like 13 that. 14 MR. CRAMPTON: I could shorten this a 15 little bit if you -- 16 A. You tell him. 17 MR. GRISHAM: Sure. 18 MR. CRAMPTON: There was a civil 19 investigative demand against Philip Morris and 20 other companies, and there was no case filed. In 21 the course of that there was some depositions, 22 including Dr. Whidby. 23 MR. GRISHAM: Okay. Thank you. 24 Q. (By Mr. Grisham) You agree with that? 25 A. Yes, sir. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 41 1 Q. All right. 2 MR. MARKEY: I don't want to interrupt, 3 but when was that? 4 MR. CRAMPTON: I think it was in '95, 5 but I don't remember. 6 MR. STANFORD: '94, '95. 7 A. So it was within the three-year time frame or 8 something like -- 9 Q. (By Mr. Grisham) You're right. 10 A. Try to be. 11 Q. Excluding the Department of Justice deposition 12 you've just described, have you given any other 13 depositions that you can recall the circumstances 14 of or the timing of, in other words, about when you 15 gave it? 16 A. No, sir. 17 Q. Do you have any of those deposition 18 transcripts with you today? 19 MR. CRAMPTON: You. 20 A. Do I? 21 Q. (By Mr. Grisham) Yes. 22 A. No, sir. 23 Q. Do you have them available to you today? 24 MR. CRAMPTON: Do you have a copy of 25 the C.I.D. deposition transcript is the question? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 42 1 A. No, sir, I don't. 2 Q. (By Mr. Grisham) Do you know where any copies 3 are today? 4 A. Not exactly. 5 Q. Do you know generally where they might be? 6 Are there any copies in Richmond? 7 A. I assume there are. 8 Q. Are there any -- 9 A. I don't know. 10 Q. -- copies in this building? 11 A. I don't know. I really don't know. 12 Q. When is the last time you saw a copy of any of 13 the deposition transcripts? 14 A. I don't recall. 15 Q. Within the last week? 16 A. No, sir. 17 Q. Within the last month? 18 A. No, sir, not that I recall. 19 Q. We've established, to the best of your 20 recollection, you've given somewhat less than ten 21 depositions. What I didn't ask you and I need to 22 ask you is whether or not each of those depositions 23 dealt with any respect to ignition propensity 24 studies? 25 A. Other than the one we just discussed? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 43 1 Q. Yes. 2 A. No, sir, not to my knowledge. 3 Q. Today's deposition is the first time you've 4 been asked to give testimony concerning ignition 5 propensity issues? 6 MR. CRAMPTON: Other than this one 7 deposition that you've talked about? 8 MR. GRISHAM: Yeah. 9 A. Yes, sir. 10 Q. (By Mr. Grisham) Okay. We've got the 11 Department of Justice deposition you've already 12 told me about, and that dealt to some degree with 13 ignition propensity? 14 A. Yes, sir. 15 Q. Obviously, we're talking today about it? 16 A. Right. 17 Q. Other than these two circumstances, have you 18 ever been asked to or have you given testimony in 19 any court proceeding or deposition setting 20 concerning ignition propensity issues? 21 A. No, sir, not to my knowledge. 22 Q. What documents or tangible things did you 23 review in preparation for your deposition today? 24 MR. CRAMPTON: Objection to the extent 25 that that calls for privileged information which MONICA WEIDMANN & ASSOCIATES (800) 969-2752 44 1 would include any documents he reviewed in the 2 presence of counsel while meeting with counsel. 3 MR. GRISHAM: Are you directing the 4 witness not to answer? 5 MR. CRAMPTON: I am. 6 Q. (By Mr. Grisham) Are you going to take the 7 advice of counsel? 8 A. Yes, sir. 9 Q. Have you reviewed documents--I'm not asking 10 you what they are--but did you review documents or 11 tangible things in preparation for your deposition? 12 A. Other than -- 13 Q. Don't tell me what they are because your 14 lawyer's made an objection. 15 MR. CRAMPTON: He's asking you whether 16 you did look at documents. 17 A. Oh, yes, sir. 18 Q. (By Mr. Grisham) Can you give me an idea of 19 the volume, whether in number of pages or inches of 20 documents or binders or however else you can best 21 quantify it for me? 22 A. Maybe about that much (indicating). 23 Q. Okay. About three or four inches? 24 A. Maybe, something like that. 25 Q. Are you familiar with the term "Project MONICA WEIDMANN & ASSOCIATES (800) 969-2752 45 1 Delta"? 2 A. Yes, sir. 3 Q. Can you tell me what Project Delta is or was? 4 A. Project Delta, I can't tell you that because 5 there's been more than one Project Delta. 6 Q. How many Project Delta's have there been? 7 A. To my knowledge, two. 8 Q. What did Project Delta No. 1 deal with? 9 MR. CRAMPTON: Objection to the extent 10 that either of these Project Delta's may not have 11 anything to do with ignition propensity and to the 12 extent they may be trade secret. 13 If they're not relevant to the case, I will 14 instruct the witness not to answer it, but you can 15 establish whether they are related to ignition 16 propensity. 17 Q. (By Mr. Grisham) Was Project Delta No. 1 or 18 No. 2 related in any way to ignition propensity 19 studies? 20 A. Not to my knowledge. 21 Q. Were either Project Delta 1 or 2 related in 22 any way to the development or study of a fire-safe 23 cigarette? 24 A. Not to my knowledge. 25 Q. Or a reduced ignition propensity cigarette? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 46 1 A. I don't -- can you ask that again, please? 2 Q. Yes. Was there any aspect of Project Delta 3 No. 1 or No. 2 that dealt in any fashion with the 4 study of or research surrounding reduced ignition 5 propensity cigarettes? 6 A. I don't think so. 7 Q. Was there any aspect of Delta 1 or 2 that 8 yielded research materials or data that has been 9 relied upon by Philip Morris and its ongoing 10 studies of a reduced ignition propensity cigarette? 11 A. I don't think so. 12 THE WITNESS: I need to talk with you. 13 MR. CRAMPTON: Maybe now would be a 14 good time for a break. 15 (Brief recess.) 16 MR. CRAMPTON: Lynn, you were asking 17 questions about Project Delta, and I'm not sure the 18 question ever really got to it. I talked with 19 Dr. Whidby and learned that Project Delta was not 20 being looked into for anything related to ignition 21 propensity, but the things they were looking at may 22 have had an impact on I.P. incidentally. 23 So having learned that, I won't instruct the 24 witness not to answer questions on Delta. 25 Q. (By Mr. Grisham) Dr. Whidby, going just to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 47 1 the heart of the topic raised by counsel, what 2 aspects of Project Delta--either 1 or 2 or 3 both--had an impact on ignition propensity studies? 4 A. None that I'm aware of. 5 Q. How were any of the projects or work done on 6 Delta 1 or 2 related to ignition propensity? 7 A. Not that I'm aware of, none. 8 Q. Were any of the results of testing or data 9 collection in Delta 1 or 2 relied upon in either 10 ignition propensity studies or in the design or 11 evaluation of cigarettes with reduced ignition 12 propensity? 13 A. No, sir, I don't think so. 14 Q. Okay. 15 MR. GRISHAM: Is that not what you just 16 said? 17 MR. CRAMPTON: When you're talking 18 about ignition propensity studies, I think you're 19 talking -- or at least I think you're talking about 20 some sort of test where you're putting cigarettes 21 on some thing to determine whether there's an 22 ignition or not. None of that occurred. 23 MR. GRISHAM: I was talking about more 24 globally the fire-safe cigarette, the reduced 25 ignition propensity cigarette as a general MONICA WEIDMANN & ASSOCIATES (800) 969-2752 48 1 topic--the subject of Hamlet. 2 MR. CRAMPTON: Maybe you could ask what 3 aspects of what you were looking at in Project 4 Delta would have had an impact on ignition 5 propensity. That might help. 6 MR. GRISHAM: If that will get me an 7 answer, I'll darn sure ask it. 8 Q. (By Mr. Grisham) Dr. Whidby, what aspects of 9 Delta 1 or 2 had an impact in any way on ignition 10 propensity? 11 A. I don't know of any that did. 12 MR. CRAMPTON: I would allow you to ask 13 about Project Delta and what they were looking at. 14 Q. (By Mr. Grisham) All right. What were you 15 looking at with Project Delta? 16 A. Delta 1 was a project in which we were trying 17 to come up with a design of a cigarette or a design 18 of a cigarette that would more efficiently create 19 smoke than our current products. 20 Q. Okay. Did that have to do with sidestream 21 smoke issues or environmental smoke issues? 22 A. I don't -- no, I don't think so. I don't 23 know. 24 Q. You were trying to -- or you were researching 25 the development of a cigarette that created less MONICA WEIDMANN & ASSOCIATES (800) 969-2752 49 1 smoke? 2 A. No, sir. 3 Q. Or dispersed less smoke? 4 A. No, sir, I don't think so. 5 Q. What was it supposed to do? What was the 6 goal? 7 A. In a standard cigarette, it weighs about 8 three-quarters of a gram--the tobacco in it--but 9 let's say a gram, right. A round number is a 10 gram. And you burn a gram of tobacco to produce a 11 few milligrams of smoke, that's not very 12 efficient. 13 So the concept of Delta originally was to 14 have a more efficient smoke generation cigarette. 15 Q. How would that benefit the consumer or Philip 16 Morris, for instance? 17 A. Well, I mean, there's conceivable benefits 18 from less environmental smoke perhaps, right? That 19 could be one. There could be others. 20 Q. Okay. Such as? 21 A. Depends on how the design is. I mean, the 22 design is so important in that--what your goals 23 are. 24 Q. How did the work generated from Delta 1 or 2 25 carry over or provide carry-over data into the MONICA WEIDMANN & ASSOCIATES (800) 969-2752 50 1 realm of the fire-safe cigarette? 2 A. To my knowledge, it didn't. 3 MR. CRAMPTON: Here's the struggle. 4 You're trying to convert Delta into some other -- 5 you know, how did Delta become something other than 6 what it is. 7 MR. GRISHAM: Really what I'm trying to 8 do--and I'm not playing any sort of games with 9 you--I'm trying to figure out if something 10 developed in Delta, which I'm really not interested 11 in, somehow was used in the issue of developing or 12 testing a cigarette that may have had -- 13 MR. CRAMPTON: Okay. You are getting 14 the right answers, then. 15 MR. GRISHAM: -- that may have had 16 ignition propensity and reduced ignition propensity 17 qualities. 18 MR. CRAMPTON: Okay. You're getting 19 the right answers. I mean, you can go ahead and 20 ask him again, if you'd like. How about this, 21 could we go off the record for just a minute? We 22 can all sit right here. 23 MR. GRISHAM: Sure. 24 (Discussion off the record.) 25 Q. (By Mr. Grisham) Dr. Whidby, with respect to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 51 1 Delta 1 and 2, which I understand was an effort to 2 create a cigarette that would burn more efficiently 3 and create smoke more efficiently, correct? 4 A. Yes, sir. It creates smoke more efficiently. 5 Q. In so doing, did the research center around 6 altering the tobacco blend, or was that an aspect 7 of the research? 8 A. It did not center around altering the tobacco 9 blend. 10 Q. The blend alteration, was that a part of the 11 research that was done on Delta? 12 A. It could have been. I can't say that was... 13 Q. Tobacco density, was that an aspect of Delta 14 research? 15 A. Not to my knowledge. 16 Q. Paper porosity, was that an aspect of Delta 1 17 or 2? 18 A. Not in -- no, not to my knowledge. Not in 19 terms of -- no, not to my knowledge. 20 Q. Was cigarette size an aspect of research in 21 Delta 1 or 2? 22 A. Not to my knowledge. 23 Q. In the work that was conducted on Delta 1 or 24 2, did prototypical cigarettes used in testing tend 25 to self-extinguish? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 52 1 A. What do you mean by "self-extinguish"? 2 Q. What I was thinking about was cease to burn 3 without someone making an effort to stop them from 4 burning. 5 MR. CRAMPTON: Before reaching the end 6 of a cigarette? 7 MR. GRISHAM: Yeah. 8 A. The problem with reaching the end of the 9 cigarette is these did not consume themselves. The 10 Delta 2 products, which was the evolution from 11 Delta 1, they didn't go -- they didn't get smaller 12 in length. So the term "self-extinguishing" is a 13 little bit vague. 14 Q. (By Mr. Grisham) Have you ever, in the course 15 of your work with Philip Morris, heard the term 16 "self-extinguishing cigarette" used? 17 A. Yes, I have. 18 Q. What does that mean to you? 19 A. It can have various meanings. 20 Q. Tell me what the meanings are to you. 21 A. One of the meanings is that during the -- when 22 you're smoking a cigarette, it will go out before 23 you finish it without doing anything to it, right. 24 Another meaning of self-extinguishing is if 25 you're evaluating a substrate that you're looking MONICA WEIDMANN & ASSOCIATES (800) 969-2752 53 1 at for trying to measure something related to 2 ignition propensity, that it might go out on the 3 substrate before it burned its full length or 4 before it ignited the substrate and caused the 5 substrate to smolder. 6 Q. As I understood a moment ago, or I thought I 7 understood, in the course of Delta 1 or Delta 2, 8 prototypical cigarettes were not tested for their 9 effect on substrates, correct? 10 A. To my knowledge, they were not. 11 Q. Was any evaluation of Delta 1 or 2 cigarettes 12 made with respect to whether or not they would go 13 out while being smoked, which was Category 1 of 14 what you described as your understanding of 15 self-extinguishing? 16 A. It's a difficult question to answer. In Delta 17 2 -- Delta 2 you measured the number of puffs that 18 you got out of the article. And whether or not it 19 was eight puffs or ten puffs or six puffs, you 20 recorded -- you could record the number of puffs. 21 Q. Okay. 22 A. So, again, self-extinguishment there I don't 23 -- is a difficult term. 24 Q. As a part of the evaluation of Delta 1 or 2, 25 whether it was puff count evaluation or any other MONICA WEIDMANN & ASSOCIATES (800) 969-2752 54 1 evaluation, was there any notation made or finding 2 reached that any of the subject cigarettes tended 3 to go out on their own while being smoked? 4 A. Not that I recall. 5 Q. Was there any other finding or evaluation 6 notation that dealt with Delta cigarettes 7 self-extinguishing before they reached the end of 8 the cigarette? 9 A. Generally on the Delta cigarette, one of our 10 concerns was how easy it is to light. Some were 11 very difficult to light, depending upon the carbon 12 heat source we used -- heat source used to heat the 13 tobacco. So the term "self-extinguishment" may 14 have been used there. I don't recall, but it may 15 have been. 16 Q. Okay. Who was the project leader for Delta 1 17 or 2? 18 MR. CRAMPTON: Assuming if there was a 19 different project leader, you would get two people 20 as an answer. 21 MR. GRISHAM: May get two, may get 22 one. 23 A. I don't recall who was project leader of 24 Delta 1. I was involved with Delta 2. 25 Q. (By Mr. Grisham) I'm sorry, the machine over MONICA WEIDMANN & ASSOCIATES (800) 969-2752 55 1 here was zipping around, I couldn't hear what you 2 said. 3 A. I was involved with Delta 2. I was the 4 manager of the group that was in. 5 Q. Who was the manager of 1, if you recall? 6 A. I don't recall. 7 Q. Was there -- was there any other Delta project 8 other than Delta 1 or 2? 9 A. Not that I can recall. Let me be clear too. 10 Delta 1 and Delta 2 are terms that I'm using right 11 now, and I'm not sure the record really shows -- 12 calls it Delta 1 or Delta 2. But I'm 13 distinguishing from the early phases of Delta to 14 the latter phases of Delta. 15 Q. Okay. Are there various levels of 16 confidentiality associated with Philip Morris 17 projects like Delta? 18 A. There are various levels of confidentiality. 19 Q. What are the names of these levels? Are they 20 secret, super secret, super-duper secret, or is 21 there some other means of describing the levels of 22 confidentiality? 23 MR. CRAMPTON: Assuming that there are 24 such names. 25 Q. (By Mr. Grisham) Okay. Or numbers, however MONICA WEIDMANN & ASSOCIATES (800) 969-2752 56 1 else one might differentiate a level of 2 confidentiality? 3 A. Okay. Let's -- do the question, please. 4 Q. Sure. How are the different levels of 5 confidentiality with regard to Philip Morris 6 projects differentiated--numerically or by name or 7 otherwise? 8 MR. CRAMPTON: Can I throw another 9 possible in here? 10 MR. GRISHAM: Do whatever you want to. 11 MR. CRAMPTON: There may be levels of 12 confidentiality applied to documents, not at the 13 time they're written, but at the time they may be 14 requested for production in a case. And then there 15 may also be confidentiality levels within the 16 company without regard to litigation. 17 I don't know whether you're asking about 18 one, the other, or both. And it's -- I mean, I 19 think you're asking about not in relation to 20 production of documents for litigation, but the way 21 the company looks at it. 22 MR. GRISHAM: You're exactly right. 23 A. So you want to know how we classify our 24 documents? 25 Q. (By Mr. Grisham) Yes. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 57 1 A. The first classification is unclassified, it's 2 business. Of course, we don't want -- we try to 3 keep that within our own walls, too, of course. 4 There's a classification of confidential. There's 5 a classification of restricted, and there's a 6 classification of trade secret. These are 7 classifications I recall. I may have left one 8 out. I hope not. 9 Q. Were -- as you just described them, were they 10 advancing in their level of restriction or secrecy? 11 A. I think that's right. Business, confidential, 12 restricted and trade secret. 13 Q. Was Delta 1 and 2 classified ever as 14 restricted or confidential? 15 A. I recall them to be restricted projects, yes 16 -- or, excuse me, very confidential projects. 17 Which level of classification we had on them at the 18 time, I don't recall. 19 Q. As a part of the research in the Delta 20 projects, were ignition temperatures -- tobacco 21 ignition temperatures the subject of any research? 22 A. I recall looking at the tobacco ignition 23 temperatures as part of some of this general 24 physics of the system, yes. 25 Q. Did Delta result in the -- in the formation or MONICA WEIDMANN & ASSOCIATES (800) 969-2752 58 1 formulation of a product? 2 MR. CRAMPTON: Product on the market? 3 Q. (By Mr. Grisham) Yeah, product first, and 4 then product on the market, second? 5 A. What's a product, please? 6 Q. Something that can be sold to the public. 7 A. I don't think we carried it far enough to be 8 able to say that it could be sold to the public. 9 Q. Was subjective testing ever done? 10 A. On? 11 Q. On Delta. 12 A. Yes, sir. 13 Q. It got to the prototypical form, though, 14 correct? 15 A. What's a prototypical form? 16 Q. Where items are manufactured in a -- within 17 certain parameters which are predetermined. 18 A. I'm not sure I can really say that we got that 19 far. 20 Q. Did Delta ever result in a test vehicle that 21 -- through which tobacco could be burned at 22 temperatures under 620 degrees Fahrenheit? 23 A. I don't think so. 24 Q. Is -- or was the Delta project related to 25 Project Beta or Project Sigma? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 59 1 A. Would you separate those questions, please? 2 Q. Yes. Was Project Delta related in any way to 3 Project Beta? 4 A. What do you mean "related in any way"? 5 Q. I'll have to let the word "related" have its 6 ordinary meaning to you because I don't know how to 7 define another way. 8 A. Since I don't know what you mean by related, I 9 don't know the answer. 10 MR. GRISHAM: Exhibit 2, please. 11 (Whidby Exhibit No. 2 was 12 marked for identification.) 13 Q. (By Mr. Grisham) Did Mr. Lanzillotti work on 14 Delta? 15 A. Yes, sir, Mr. Lanzillotti did. 16 Q. Sir? 17 A. Yes, he did. 18 Q. Did he also work on Beta or Sigma? 19 A. I recall Mr. Lanzillotti working on Sigma, 20 about Beta I don't recall. 21 Q. How about Mr. Lowsey (phonetics), did he work 22 on either Beta or Sigma? 23 A. Yes, sir. 24 Q. Did Project Delta involve any research with 25 tobacco fillers? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 60 1 MR. CRAMPTON: Which project? 2 MR. GRISHAM: Delta 1 or 2. 3 A. The word "filler," what do we mean by that? 4 Q. (By Mr. Grisham) It's my understanding that 5 additives can be made to tobacco, such as aluminum, 6 for instance; other items that are not tobacco, but 7 they can form part of the -- part of the tobacco, 8 the rod of the cigarette? 9 A. I understand that some work was done with 10 tobacco fillers. 11 Q. Did any of that work result in a product -- 12 well, I won't use the term product. Did it result 13 in the manufacture of a cigarette that had lower 14 burning levels, temperature levels? 15 A. Not that I can recall. 16 Q. Did any of the additives or fillers result in 17 cigarettes intended to self-extinguish? 18 A. I don't know. 19 Q. I want to hand you what's been marked as 20 Exhibit 2 to your deposition. I'm going to ask 21 that after you've reviewed that you answer a few 22 questions for me about it. 23 A. Okay. 24 Q. Do you recognize that document? 25 A. No, I do not. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 61 1 Q. You've never seen it before? 2 A. I don't recall ever seeing it. 3 Q. Can I see it again? And if you need to look 4 at it in the course of my questions, I'll hand it 5 back to you. 6 Do you know Frank Watson? 7 A. Yes, I know Frank Watson. 8 Q. What is his position -- let me start over. 9 What was his position with Philip Morris U.S.A. in 10 January of 1980? 11 A. I'm not sure. 12 Q. Do you know what his position with Philip 13 Morris U.S.A. has been subsequently? 14 A. Not exactly. 15 Q. Okay. Do you have a general idea? 16 A. Yes. 17 Q. What is your general understanding? 18 A. Frank has held various positions of increasing 19 responsibility, I guess, over the years. 20 Q. What is his position today; do you know? 21 A. Do I know his position today? I think he's a 22 director. 23 Q. Do you know who Mr. Lanzillotti is? 24 A. Yes, sir. 25 Q. Back in 1980, what was his position with MONICA WEIDMANN & ASSOCIATES (800) 969-2752 62 1 Philip Morris? 2 A. I don't know exactly. 3 Q. Did you work with him on any project? 4 A. Yes. 5 Q. What projects have you worked on with him? 6 A. I recall working with Mr. Lanzillotti on Delta 7 and Sigma. I can't recall whether he was working 8 on Beta or not. 9 Q. Has he worked on Project Tomorrow? 10 A. Yes. 11 Q. Do you recall a data handling system being 12 developed or implemented to handle the data 13 emanating from Project Delta? 14 A. I don't recall that. 15 Q. Do you recall the -- as a part of the research 16 done in Project Delta, the storage or plotting of 17 gas chromatographic spectra? 18 A. I don't recall that. 19 Q. Do you use that sort of data or have you used 20 that sort of data in other research you've done? 21 A. Yes, sir. 22 Q. How would it be used in your research? 23 A. Gas chromatographic data is used in a very 24 large number of ways--principally to either 25 characterize or quantify constituents of materials. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 63 1 Q. Can that sort of information be used to 2 evaluate burn characteristics of a material? 3 A. Yes, it probably can. 4 Q. Did the Phase 1 of the Delta project contain 5 -- deal with a cigarette investigation containing 6 iron oxide carbonate or a device that was made from 7 iron oxide carbonate? 8 A. Not to my knowledge. 9 Q. Did it deal with the creation of a device that 10 had a heat-generated flavor chamber? 11 A. I don't recall. I don't think so. 12 Q. Did the research surrounding the second phase 13 of Delta investigate the use of an electric heating 14 element in the flavor chamber? 15 A. I don't think so. 16 Q. What was Project Sigma? 17 A. Project Sigma's goal was to develop a 18 Delta-type cigarette with substantially reduced CO, 19 carbon monoxide. 20 Q. During what years was Project Delta ongoing? 21 Back to Delta. 22 A. I really don't recall, I'm sorry. 23 Q. Do you recall whether -- what years Project 24 Sigma was ongoing? 25 A. No, sir, I don't. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 64 1 Q. Did Sigma involve research that was different 2 or apart from what Delta had involved? 3 A. It was different than what Delta -- somewhat 4 different than Delta. 5 Q. What was the difference between Project Delta 6 and what was hoped to achieve in Project Sigma? 7 A. Project Sigma hoped to achieve a reduced 8 carbon monoxide heat source. I did say Sigma, 9 didn't I? 10 MR. CRAMPTON: Yes. 11 A. Yeah, that's right. 12 Q. (By Mr. Grisham) I thought you did. That's 13 what I understood. 14 Were both Sigma and Delta investigations 15 into altering the delivery of the cigarette? 16 A. I don't think so, no. 17 Q. Sigma was, though, or at least a component of 18 delivery was the subject of the investigation? 19 A. Not that I recall. 20 Q. Was there any research data generated or any 21 conclusions reached through the Sigma project 22 work -- 23 A. I'm sorry, could we go back to the previous 24 question? 25 Q. Sure. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 65 1 A. Would you try that one more time? 2 Q. Okay. Did Sigma deal with the topic or the 3 componentry of cigarette delivery? 4 A. As far as CO goes, yes. 5 Q. Only as far as CO, though? 6 A. Yes, sir. 7 Q. Did any of the research generated -- 8 A. I'm sorry, as far as CO goes, yes. There may 9 have been other components that Sigma also looked 10 at. 11 Q. Okay. Did any of the Sigma research or 12 experimentation or the conclusions reached 13 therefrom form any basis for data that was reviewed 14 in connection with ignition propensity? 15 A. Not that I'm aware of, no, sir. 16 Q. What was the scope of Beta? What was its 17 purpose? 18 MR. CRAMPTON: I just want to interpose 19 an objection with respect to Beta. Beta is an 20 ongoing highly trade secret project. I think 21 you're entitled to ask some general questions about 22 it to get an idea about what it is. 23 But I -- if it gets into too much detail, 24 too much forward looking, planning, anything like 25 that, I'm going to instruct the witness not to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 66 1 answer because it's not relevant -- the current 2 product development things would not be relevant. 3 And they're a highly trade secret which would 4 outweigh any potential relevance at all. 5 So I mean, you can go ahead, but at some 6 point there will be a stop on Beta if you get into 7 too highly a trade secret area, all right. 8 MR. GRISHAM: Okay. 9 Q. (By Mr. Grisham) Can you tell me what Beta is 10 about? 11 A. Yes, sir. Beta is -- can I contrast it with, 12 say, Sigma and Delta? 13 Q. Sure. However you can best explain it to me. 14 A. Sigma and Delta was -- the original objective, 15 as we said earlier, was to come up with a way of 16 generating smoke without burning tobacco, too much 17 tobacco. But we used a carbon heat source with 18 Delta and we used an iron carbide heat source with 19 Sigma to reduce the CO. 20 The concept with Beta is to use an electric 21 source so you don't have to burn anything, and you 22 use electrical heaters to heat the tobacco and 23 generate smoke that way. That's the general 24 concept of Beta. So it's evolutionary. 25 Q. Got you. Through the--evolution's a good MONICA WEIDMANN & ASSOCIATES (800) 969-2752 67 1 word--of Delta and Sigma and Beta and the research 2 that was ongoing, was consideration given by you or 3 anyone at Philip Morris that you're aware of to the 4 potential benefit that these devices might have to 5 ignition propensity? 6 A. In general terms, a product or a potential 7 product like Beta which does not have a coal is 8 most likely not going to be a problem when it comes 9 to causing fires by carelessly handled cigarettes. 10 Q. Was that something that you or anyone in your 11 presence at Philip Morris ever discussed as a 12 possible benefit to this line -- evolutionary line 13 of research? 14 A. It was talked about, but it's not -- I mean, 15 it's just an obvious thing. It's not something you 16 really need to have great discussions about. 17 Q. I understand. Lawyers, though, have to ask 18 all these questions about even the obvious. 19 Under what circumstance was the benefit of 20 -- potential benefit of fire safety discussed in 21 terms of -- 22 A. I don't recall. 23 Q. -- these projects? And as Counsel mentioned, 24 I believe Beta is an ongoing project, correct? 25 A. Yes, sir. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 68 1 Q. Are Sigma and Delta ongoing? 2 A. No. 3 Q. When was -- 4 A. They're not ongoing. 5 Q. When was Beta begun? 6 A. I don't recall it, the exact time, or the 7 time. 8 Q. Was it within the last five years? 9 A. I believe so, yes. 10 Q. Within the last three years? 11 A. No. It's longer than three years. 12 Q. Longer than three, but within five probably? 13 A. It's more than five. How much more than five, 14 I can't recall. 15 Q. Fair enough. Was Beta ongoing while Project 16 Hamlet was ongoing? 17 A. Not that I recall. 18 Q. Did you ever work on Project Hamlet? 19 A. No, sir, I did not. 20 Q. Have you ever reviewed documentation dealing 21 with Project Hamlet? 22 MR. CRAMPTON: Outside of in 23 preparation for a deposition with counsel. 24 A. I've looked at various reports. 25 Q. (By Mr. Grisham) Did you look at those MONICA WEIDMANN & ASSOCIATES (800) 969-2752 69 1 reports in conjunction with work that you were 2 doing or hoped to do with respect to Project 3 Tomorrow? 4 A. I don't recall any detail review of the Hamlet 5 documents. 6 Q. Do you recall why you reviewed the Hamlet 7 documents? 8 A. I've -- I've been a manager at Philip Morris 9 and a scientist at Philip Morris for a number of 10 years, and in the general course of doing business, 11 there's a lot of documents that I read. 12 Q. What is Project Tomorrow? 13 A. The goal of Project Tomorrow is to reduce the 14 number of fires from carelessly handled cigarettes, 15 reduce the number of fires caused from carelessly 16 handling cigarettes. 17 Q. How does that differ from the project goal of 18 Hamlet, if you know? 19 A. I don't know. 20 Q. When was Project Tomorrow implemented? 21 A. To my knowledge, Project Tomorrow was 22 implemented about 1987. 23 Q. At whose request was Tomorrow implemented? 24 A. I don't know who was the initiator of 25 Tomorrow. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 70 1 Q. Were you involved with Project Tomorrow from 2 its inception? 3 A. As far as I know. 4 Q. What was your beginning responsibility or job 5 title, probably would be more appropriate? 6 A. I was the manager of physical research 7 division. 8 Q. Was Project Tomorrow subsumed within or under 9 the umbrella of R&D? 10 A. Project Tomorrow was within R&D. 11 Q. Was it under the umbrella of the research 12 department or the development department? 13 A. It was responsibilities that spanned both 14 departments. 15 Q. Were you under the research department? 16 A. Yes, sir. 17 Q. Who worked on Tomorrow with the development 18 department? 19 A. At the inception, when -- when are you talking 20 about? 21 Q. The inception of Tomorrow. 22 A. I'm having a hard time. I don't recall who 23 was the responsible person then. 24 Q. Who was the responsible person over both 25 research and development in 1987 when Tomorrow MONICA WEIDMANN & ASSOCIATES (800) 969-2752 71 1 began? 2 A. Dr. Jim Charles. 3 Q. I'm sorry? 4 A. Dr. Jim Charles was responsible for Tomorrow. 5 Q. Is he still with the company? 6 A. No, sir. 7 Q. Is he living? 8 A. Yes, sir, as far as I know he is. 9 Q. Is he retired, or did he go to some other job? 10 A. He's retired. 11 Q. Do you know where he resides? 12 A. Yes, sir. 13 Q. Where? 14 A. Wicomico Church, Virginia, as far as I know. 15 Q. Do you have a written contract with Philip 16 Morris? 17 A. I don't know. 18 Q. You don't know whether or not your employment 19 is governed by a written contract or not? 20 A. I don't think so. 21 Q. Do you -- 22 A. Well, that's a difficult question. I have 23 signed a non-compete agreement with Philip Morris. 24 But whether that's a contract for employment, I 25 mean, I -- I'm unclear, okay. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 72 1 Q. Okay. 2 A. That's the reason I answered I don't know. 3 Q. I understand. 4 MR. CRAMPTON: It's also a question of 5 relevance. 6 Q. (By Mr. Grisham) Did any personnel involved 7 with Project Hamlet work on Project Tomorrow? 8 A. Can we define what worked with -- "worked on" 9 meant. 10 Q. Well, that's a hard one. 11 A. Yeah. 12 Q. And I want you to be able to answer and feel 13 comfortable answering, so I'll do the best I can. 14 But in my mind "worked on or worked with" means 15 sharing of work. It means sharing responsibilities 16 or tasks with reference to a project, or perhaps 17 memoing one another on research that's being done. 18 It could be really broad, and that's how I intended 19 in its broadest sense? 20 A. In its broadest sense, people from Hamlet 21 shared information with people on Tomorrow. And so 22 in its broadest sense, yes. 23 Q. Beyond sharing information, though, task 24 forces from Hamlet didn't just fall over into the 25 next category of project and begin working on MONICA WEIDMANN & ASSOCIATES (800) 969-2752 73 1 Tomorrow? 2 MR. CRAMPTON: Object to the form. 3 A. All the people working on Hamlet didn't go to 4 work on Tomorrow. 5 Q. (By Mr. Grisham) Did any of the people go to 6 work on Tomorrow? 7 A. I don't know the answer to that question 8 because I don't know. 9 Q. At any time in the past, has Project Tomorrow 10 had an identifiable, distinct location? 11 A. Not that I know of. 12 Q. Is Project Tomorrow research conducted in the 13 R&D complex? 14 A. Yes. 15 Q. Does Tomorrow have any portion of any 16 laboratory dedicated to its testing and research? 17 A. Yes. 18 MR. CRAMPTON: I'm sorry, did you ask a 19 portion of a lab? 20 MR. GRISHAM: A laboratory or any 21 portion of a laboratory. 22 Q. (By Mr. Grisham) Is it the same laboratory or 23 a portion of the laboratory that Hamlet research 24 had been undertaken in? 25 A. I don't know. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 74 1 Q. Are the results of Tomorrow research, 2 including data-gathering assembly--the reports 3 resulting from data assembly--maintained on any 4 electronic storage system, including computer 5 disks, tape, drive or other means of electronic 6 storage? 7 A. Some may be. 8 Q. What form of electronic storage does that -- 9 are they stored on or in? 10 A. Probably all the ones you just mentioned. 11 Q. Are there any of those means of storage that 12 are word searchable by key word? 13 A. I don't know. 14 Q. Who would be the person who would have 15 knowledge about that particular topic? 16 A. I could acquire that knowledge. 17 Q. How would you go about doing it? 18 A. I'd talk to the people working on Tomorrow and 19 find out whether or not they have any key word 20 searchable documents like that. 21 Q. At Philip Morris U.S.A., particularly in your 22 management area, do the people who work for you 23 have individual computer stations? 24 A. Some do. 25 Q. Are those connected to some mainframe or are MONICA WEIDMANN & ASSOCIATES (800) 969-2752 75 1 they specific to the individual and person? 2 A. Some are connected. 3 Q. And some are personal computers? 4 A. There may be some that are not connected. 5 Q. In terms of the hierarchy of the Tomorrow 6 project, you're the manager. Who comes next in 7 hierarchy in terms of responsibility or leadership 8 or decision-making or any of those combinations of 9 things? 10 MR. CRAMPTON: Object to form. 11 A. I'm sorry, would you repeat the question? 12 Q. (By Mr. Grisham) I'm trying to speed things 13 up best I can. Who comes under you in terms of 14 authority on Project Tomorrow? 15 A. A number of people. 16 Q. Okay. Can you name them for me? 17 A. Dr. Bill Dwyer, Dr. Francis Shoe (phonetics), 18 Mr. Tyrone Murray. 19 Q. Any others? 20 A. Directly? 21 Q. Yes. 22 A. No, I don't think so. 23 Q. Approximately how many persons are involved in 24 work on the Tomorrow project today? 25 A. I'd say less than 60, more than 40 probably. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 76 1 Q. Has that same -- 2 A. And that's -- it's a variable, flexible 3 situation. 4 Q. That's what I was going to ask you. Has that 5 number between 40 to 60 remained fairly constant 6 within that range since Tomorrow began in 1987? 7 A. No, sir. 8 Q. Give me an idea from 1987 forward, typically, 9 the range of human resources devoted to the 10 project. 11 A. It's a very difficult question. It's grown 12 over the years from 1987 forward. I don't think 13 it's ever been fewer than, say, 10 or 15, and 14 probably not many more than what we have right now. 15 Q. From 1987 to the present, have you had any 16 other responsibilities in your work with Philip 17 Morris other than the management of the Tomorrow 18 project? 19 A. Yes, sir. 20 Q. Approximately what percentage of your time 21 would you estimate from 1987 to the present that 22 you've committed to the Project Tomorrow versus 23 those other areas of work? 24 A. Just a grand -- grand average, huh? 25 Q. Yeah. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 77 1 A. Probably on the order of 50 percent over that 2 period of time, I would guess. I mean, that's a 3 raw guess. 4 Q. With respect to the people that have worked on 5 the project for you, we've estimated -- or you've 6 estimated for me no fewer than 10 or 15 and maybe 7 up through today 40 to 60. Are those persons who 8 are dedicated to this project solely, or are they 9 people like yourself that may offer a percentage of 10 their time to this project and a percent to others? 11 A. There are people who are totally dedicated to 12 this project--technicians, for example--and then 13 there's other professionals who may have some 14 responsibilities, and then it depends in other 15 areas. 16 Q. Who followed Mr. Jim Charles in the -- he was 17 the person you reported to in 1987, correct? 18 A. Yes. 19 Q. Who followed him in that role? 20 A. I don't think anybody followed him in that 21 role. 22 Q. When did he retire? 23 A. I don't recall exactly. Four or five years 24 ago. 25 Q. Who did you begin to report to with respect to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 78 1 Project Tomorrow after Jim Charles retired? 2 A. I believe I reported to Mr. Bill Kuhn. 3 Q. How do you spell his last name? 4 A. K-u-h-n. 5 MR. CRAMPTON: You know, I just want to 6 throw something in. It may be that -- I don't know 7 this, but it may be that Dr. Whidby took over the 8 role that Charles was playing with respect to 9 Project Tomorrow without taking the title. So 10 that's -- that may be a little bit of a 11 miscommunication. 12 MR. GRISHAM: All right. I'll move 13 right to that. 14 Q. (By Mr. Grisham) Dr. Whidby, when Mr. Charles 15 retired, did you assume the responsibility for 16 Tomorrow that he had -- he had enjoyed before his 17 retirement? 18 A. Yes, sir. 19 Q. But you didn't necessarily change the title 20 that you -- of your employment with Philip Morris, 21 correct? 22 A. That's right, yes, sir. 23 Q. So you maintained your status as a manager, 24 but you didn't have Mr. Charles' position over 25 you. You really consumed -- MONICA WEIDMANN & ASSOCIATES (800) 969-2752 79 1 A. Yes. 2 Q. -- that position? 3 A. Right. 4 Q. Who did you report to then that had been above 5 Mr. Charles? 6 A. Dr. Kenneth Houghton. 7 Q. Can you spell that name? 8 A. H-o-u-g-h-t-o-n. 9 Q. Is he still in the position of being the 10 person you report to on Tomorrow issues? 11 A. Yes, sir. 12 Q. What is his title with the company? Is he a 13 director? 14 A. Vice-president, senior vice-president of 15 research and development. 16 Q. When Project Tomorrow ensued in 1987, what was 17 the initial focus of the research? 18 A. Initial focus in 1987 was to determine ways to 19 reduce the mass burn rate of the cigarette. 20 Q. Is mass burn rate sometimes referred to simply 21 as M.B.R. in your research and reporting of the 22 results? 23 A. It could be referred to as M.B.R. 24 Q. Why was mass burn rate something that was 25 primarily or initially focused on in the research MONICA WEIDMANN & ASSOCIATES (800) 969-2752 80 1 to reduce the number of fires caused from 2 carelessly handled cigarette products? 3 A. At that time the focus was on mass burn rate 4 because it was felt that reducing the mass burn 5 rate was the right direction to carry the products 6 or to do the research in. 7 Q. Were you involved in the formulation of that 8 focus? 9 A. Yes, to some extent. 10 Q. What is mass burn rate? 11 A. The amount of tobacco burned per unit time. 12 Q. In 1987 was the mass burn rate something that 13 could be altered with respect to the cigarette? 14 A. Yes. I mean, you can always -- yes. 15 Q. What are the ways that one would alter mass 16 burn rate? 17 A. There are many ways to alter mass burn rate. 18 Q. Tell me as many as you can think of sitting 19 here, offhand, today. 20 A. One would be to reduce the circumference of a 21 cigarette. Another one might be to change the 22 paper to reduce the permeability of the paper. 23 Q. Okay. Can you think of any others offhand? 24 Would tobacco density be something? 25 A. In general, tobacco density doesn't reduce the MONICA WEIDMANN & ASSOCIATES (800) 969-2752 81 1 mass burn rate. 2 Q. Would paper additives or tobacco additives be 3 another aspect of burn rate reduction? 4 A. Take paper itself, various parameters 5 associated with the paper can be used to change the 6 way the cigarette burns, yes. 7 Q. And at least in the initial phases of the 8 project in 1987, you and others with you on the 9 project felt like reducing the mass burn rate might 10 have a positive effect on fire reduction? 11 A. I can't say that. 12 Q. Did you think that reducing the mass burn rate 13 was the most plausible place to begin in your 14 research in hopes of reducing fires caused from 15 cigarettes? 16 A. It was the area that we felt that we could 17 start a research on. 18 Q. Did you start with that area because you 19 thought that offered the most promise in achieving 20 your goal? 21 A. Yes. 22 Q. And in embarking on that particular path, did 23 you or any of the other folks involved with Project 24 Tomorrow rely upon the research that had been 25 undertaken in Project Hamlet? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 82 1 A. Yes, some of the research in Project Hamlet. 2 Q. In terms of conducting the particular 3 research, did Project Tomorrow in 1987 use test 4 protocols that were the same or very similar to 5 what the California standards were for burn 6 testing? 7 A. We used some of the parameters in the 8 California standard test, as I recall. 9 Q. Okay. Describe for me what sort of burn tests 10 were done during the initial phases of the project 11 when you were hoping to reduce the mass burn rate 12 and see how that responded. 13 A. Very little, if any, mass -- I mean, burning 14 tests were done. That was the reason we were 15 concentrating on mass burn rate. 16 Mass burn rates are relatively easy things 17 to measure. Measuring whether or not the substrate 18 is ignited or not is a very difficult thing to do, 19 time consuming. So we felt it was expedient to 20 look at mass burn rate rather than look at the 21 California testing, for example. Although we did 22 -- we looked at those things just to have an idea 23 of what was going on with some of the testing 24 protocols. 25 Q. Was any mass burn rate testing done on MONICA WEIDMANN & ASSOCIATES (800) 969-2752 83 1 commercial brand Philip Morris products? 2 A. The mass burn rate is a calculated number, 3 right. And if you get -- if you know the linear 4 burn rate--that is how fast it burns in length per 5 unit time--which is something we typically measure, 6 and I know the density, it's very easy to calculate 7 the mass burn rate. 8 Q. Okay. So with knowledge that you already had, 9 you, in 1987, would have been able to calculate the 10 mass burn rate of a Marlboro, for instance? 11 A. Calculate the mass burn rate of any cigarette 12 if I know the linear burn rate. 13 MR. CRAMPTON: And the mass. 14 A. And the density, yes. 15 MR. MARKEY: Excuse me, Lynn. And 16 density, is that what you said? 17 THE WITNESS: Yes. 18 Q. (By Mr. Grisham) Understanding that, 19 nevertheless, was any mass burn rate -- 20 A. Let me just make that real clear there. I 21 also have to know the circumference, if I know the 22 density, right. 23 Q. Understanding that, nevertheless, was any mass 24 burn rate testing done on an off-the-shelf 25 cigarette, Philip Morris product? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 84 1 MR. CRAMPTON: Objection; he told you 2 it's not tested, it's calculated. 3 MR. GRISHAM: Okay, he said he 4 calculated. I just want to know if he also did 5 burn testing? 6 A. You mean -- what kind of burn testing? 7 Q. (By Mr. Grisham) With respect to mass burn 8 rate research that you have been involved with at 9 Philip Morris, have you or any of the persons under 10 your direction done any sort of mass burn rate 11 testing, not calculation, but actual burn testing 12 of any commercial Philip Morris product? 13 MR. CRAMPTON: Objection. I could 14 explain it to -- when you say mass burn rate 15 testing, are you talking about measuring a 16 cigarette burning in air to determine the rate at 17 which mass burns? You're not talking about putting 18 it on a substrate? 19 MR. GRISHAM: It could be either. I 20 intend it to be broad enough to be both. 21 MR. CRAMPTON: Okay. Because mass burn 22 rate testing would not -- I mean, by definition 23 would not be ignition testing. 24 MR. GRISHAM: Right. Those are all 25 questions I've got lined out. But first, we're MONICA WEIDMANN & ASSOCIATES (800) 969-2752 85 1 starting with mass burn rate. 2 A. Can we go one at a time, then? 3 Q. (By Mr. Grisham) Yeah. Was there any mass 4 burn rate testing just of the product, commercial 5 product? 6 A. Not that I recall. 7 Q. Was there any ignition testing done with any 8 commercial Philip Morris product through Project 9 Tomorrow at any time? 10 A. Not to my knowledge, no. 11 Q. Do you know of any ignition testing that's 12 ever been done outside the United States government 13 testing of any commercial Philip Morris product? 14 A. Yes. 15 Q. What research is that? 16 A. I'm aware of some work that was done by 17 American Tobacco that attempted to replicate the 18 results that was done by the NIST group. 19 Q. Okay. Was that information acquired through 20 the CORESTA project? 21 A. No, sir, it was not. 22 Q. How was it acquired by you? 23 A. Through the Joint Venture project. 24 Q. Are you aware of any linear burn rate testing 25 of any commercial Philip Morris product? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 86 1 A. As part of our normal measurement of cigarette 2 parameters, we look at the linear burn rate quite 3 frequently. 4 Q. Was that through the calculation that you 5 talked about earlier; or was that literally a test, 6 a linear burn rate test, on a commercial Philip 7 Morris product? 8 A. As part of our normal quality testing, we'd 9 look at the -- we call it the static burn time, how 10 long it takes a cigarette to burn a particular 11 length of time. From that you can calculate the 12 linear burn rate of a cigarette. 13 Q. And that's what -- a moment ago you were 14 talking about taking that known information and 15 being able to calculate the mass burn rate, 16 correct? 17 A. Yes, right. 18 Q. So you didn't take any effort or make any 19 effort special and apart from what is typically 20 done to the commercial cigarettes to test it to do 21 the calculations? 22 A. Repeat the question one time, please. 23 Q. Yeah, let me do that better. In calculating 24 the mass burn rate for the commercial Philip Morris 25 brands, as I understand it you didn't make any MONICA WEIDMANN & ASSOCIATES (800) 969-2752 87 1 special effort to burn those particular products. 2 You went back and found the standard burn times 3 research that was done separate and apart from your 4 project and were able to calculate from that the 5 mass burn rate? 6 A. That is my recollection. 7 Q. You didn't do any separate testing the 8 commercial product to establish the burn, do you? 9 A. I don't recall. 10 Q. The mass burn rate? 11 A. I don't recall doing it. 12 MR. GRISHAM: I think we're running out 13 of tape. 14 (Lunch recess.) 15 Q. (By Mr. Grisham) Dr. Whidby, earlier in your 16 testimony you talked about being involved in 17 research on a Joint Venture. Do you recall that 18 testimony? 19 A. Yes, sir. 20 Q. What were you referring to with respect to the 21 Joint Venture? 22 A. Joint Venture was a group of U.S. domestic 23 tobacco companies tasked with the -- or charged 24 with trying to find the method for evaluating 25 ignition propensity of cigarettes. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 88 1 Q. How did that Joint Venture come into 2 existence? 3 A. I'm not exactly sure. 4 Q. How did you learn about its existence? 5 A. I don't recall exactly. I think Dr. Jim 6 Charles told me about it, but I don't recall 7 exactly. 8 Q. Are you still working on the Joint Venture? 9 A. No, sir, I'm not. 10 Q. During what time period was the Joint Venture 11 ongoing? 12 A. I don't recall exactly. 13 Q. Can you give me a -- your best estimate? 14 A. I don't recall when it started. It's been not 15 in existence for about the six-month period or 16 something of that nature, I think. 17 Q. So it ended sometime in 1996? 18 A. I think that's right. 19 Q. Do you recall approximately when it began? 20 A. '89. I really don't know. '89, '90, probably 21 somewhere in that era. 22 Q. Did the Joint Venture -- what was the official 23 name of the project? 24 A. I don't recall. 25 Q. You just referred to it as the Joint Venture? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 89 1 A. I personally refer to it as the Joint Venture, 2 yes. 3 Q. Fair enough. Did it complement or supplement 4 in any way the work that you were doing on 5 Tomorrow? 6 A. There were certain aspects of the Joint 7 Venture that were -- had some commonality with 8 Tomorrow, although not a perfect overlap. 9 Q. Do you know how the Joint Venture was funded? 10 A. Yes. 11 Q. How? 12 A. By the tobacco companies. 13 Q. Was the Tobacco Institute involved in the 14 Joint Venture? 15 A. I don't think so. 16 Q. Were any industry participants involved in the 17 Joint Venture, outside the tobacco industry? 18 A. No, not to my knowledge. 19 Q. Were there any governmental employees involved 20 in the Joint Venture? 21 A. No, sir, not to my knowledge. 22 Q. Did the Joint Venture undertake research 23 different than what CORESTA had undertaken? 24 A. Yes. 25 Q. How was it different? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 90 1 A. The Joint Venture was primarily interested in 2 coming up with a test method that would allow the 3 evaluation of ignition propensity of cigarettes on 4 commercial fabrics in a more real world sense. 5 Q. Okay. Through any of the research that you 6 have been familiar with, whether you conducted it 7 or studied others research, are you aware of any 8 research or study having been conducted on the 9 issue of cigarette related fires in automobiles? 10 A. I'm not aware of any research on cigarette 11 related fires in automobiles. 12 Q. Are you aware of any testing having been 13 conducted on that topic? 14 A. No, sir, I'm not. 15 Q. When we broke for lunch today, we were 16 discussing the measurement and evaluation of mass 17 burn rate and -- as a part of the Tomorrow 18 project. Were you or the other participants in 19 Project Tomorrow able to arrive at any conclusions 20 on the issue of whether mass burn rate was an 21 appropriate topic for focus in ultimately creating 22 a cigarette that would meet the goals of Project 23 Tomorrow? 24 A. Yes. 25 Q. What was that conclusion? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 91 1 A. The conclusion was that mass burn rate was not 2 good enough of a predictor of how a cigarette 3 performs on upholstery furniture to use mass burn 4 rate. 5 Q. What other issues of tobacco and cigarette 6 research were looked at by Project Tomorrow other 7 than mass burn rate in attempting to achieve the 8 goals of Tomorrow? 9 MR. CRAMPTON: Is there a time frame on 10 that? 11 MR. GRISHAM: What I'd like to do, if 12 he could, is just start from the beginning--we've 13 already talked about mass burn rate--and bring it 14 up to the present. 15 A. We looked at mass burn rate, of course, we 16 just discussed, and we found that was not a perfect 17 -- not a good predictor even of real world 18 upholstery fabrics. 19 As a matter of fact, mass burn rate can lead 20 you astray. You can have a low mass burn rate and 21 have more ignitions on some fabrics than you would 22 if you had a high mass burn rate cigarette. So we 23 had reversals on commercial upholstery fabrics with 24 those cigarettes and those reversals have been 25 confirmed numerous times. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 92 1 We also looked at various parameters of 2 cigarette paper. We looked at the density of the 3 cigarette. We looked at the circumference of the 4 cigarette. We looked at the blend type. We looked 5 at -- I'm sure I must be leaving something out, but 6 I can't recall right now. We looked at practically 7 every parameter we could think of for the cigarette 8 to evaluate. 9 Q. (By Mr. Grisham) Are these studies still 10 going on with Project Tomorrow? 11 A. Yes, sir. There are studies still going on. 12 Q. What are the studies focusing on at the 13 present time, you know, the 1995 or 1996 time 14 period on the ignition propensity and the 15 development of a cigarette that would meet the 16 goals of Project Tomorrow? 17 MR. CRAMPTON: I want to interpose an 18 objection. It's similar to the objection that I 19 talked about before with Project Beta. 20 To the extent that there's any product 21 development work going on that's ongoing right now 22 that's trade secret, we object to that, and I'll 23 instruct the witness not to answer questions 24 related to that because it's not relevant and it's 25 trade secret. But I think the way you've framed MONICA WEIDMANN & ASSOCIATES (800) 969-2752 93 1 this question I don't have a problem with him 2 answering. 3 A. Our primary focus at this time is on the 4 properties of the paper. 5 Q. (By Mr. Grisham) Is the -- are the properties 6 of the paper that you are focusing on now the 7 porosity of the paper? 8 A. I'm having a very difficult time answering 9 this question because it does lead to trade secret 10 stuff. 11 Q. I assume that trade secret matters are matters 12 that are outside the area of reduced ignition 13 propensity cigarettes? 14 MR. CRAMPTON: Well, I'm talking about 15 product development which either is or isn't 16 related to reduced ignition propensity cigarettes 17 from this point forward, plans for the future as 18 opposed to what's been done up to this point. See 19 what I'm saying? 20 MR. GRISHAM: I do. You're instructing 21 him not to answer questions about plans for the 22 future with respect to the reduced ignition 23 propensity cigarette research? 24 MR. CRAMPTON: With respect to any 25 research, right. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 94 1 MR. GRISHAM: Okay. 2 Q. (By Mr. Grisham) With respect to work that 3 has been ongoing through today dealing with the 4 cigarette paper, have you dealt with permeability 5 or the porosity of the paper as a component of 6 perhaps reducing the ignition propensity of 7 cigarettes? 8 A. Yes, sir, we have. 9 Q. Currently do you, in conducting the research 10 on the permeability, measure the paper's 11 permeability in CORESTA units? 12 A. Yes, sir, we do. 13 Q. How do the old -- how does the old Greiner 14 measurement correlate or compare to CORESTA 15 measurement that you're using today? 16 A. I'm not going to be able to do the translation 17 for you because I didn't bring the formula in my 18 head. 19 Q. I've got it here somewhere, but I was talking 20 about generally. 21 A. In general terms, CORESTA -- low numbers on 22 the CORESTA, say, 5 or 10 CORESTA correspond to 23 high numbers on the Greiner scale. 24 Q. Okay. So a lower CORESTA number would be less 25 permeable? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 95 1 A. That's correct. 2 Q. And would create a slower burn rate typically? 3 A. All other things being equal. 4 Q. Yes. Through today have you or anyone at 5 Philip Morris that you're aware of through a 6 combination of any of the factors we've talked 7 about in terms of altering the design of a 8 cigarette been able to create a cigarette or a 9 prototype of a cigarette that has the effect of 10 having a reduced ignition propensity in real world 11 situations? 12 A. I don't know. 13 Q. If such a cigarette or a prototype had been 14 created at Philip Morris, would you be likely to 15 know about it, given the position that you hold 16 with the company? 17 A. I believe so, yes. 18 Q. Are there circumstances in your mind that lead 19 you to the conclusion you may not know about some 20 research that's gone on in the area of reduced 21 ignition propensity? 22 A. No, sir. 23 Q. And the reason I ask is you said you don't 24 know if such a cigarette has been produced yet, 25 although you're in a position that if it had, you MONICA WEIDMANN & ASSOCIATES (800) 969-2752 96 1 probably would know, correct? 2 A. Yes. 3 MR. CRAMPTON: I think the reason he 4 said he didn't know is that you can't tell, based 5 on what's known today, whether something is reduced 6 ignition propensity in the real world. And that's 7 the reason he doesn't know. 8 MR. GRISHAM: Okay. 9 Q. (By Mr. Grisham) Have you or has anyone at 10 Philip Morris developed a cigarette that you 11 believe, because of tests that you've undertaken, 12 may have a reduced ignition propensity 13 characteristic in a real world application? 14 A. Again, I don't know. 15 Q. Why don't you know? 16 A. I don't know because I don't know how to 17 describe the real world and what kind of tests I 18 would have to do in order to say whether or not a 19 particular cigarette would be reduced in the real 20 world. 21 Q. It's virtually impossible to replicate every 22 real world situation in which a cigarette might 23 ignite a substance, correct? 24 A. I think that's very difficult, yes. 25 Q. Have you attempted or has anyone at Philip MONICA WEIDMANN & ASSOCIATES (800) 969-2752 97 1 Morris attempted to create parameters that would 2 satisfy the requirements of determining the real 3 world interactions of cigarettes to potentially 4 flammable substances? 5 A. What we have done at Philip Morris is to look 6 at the parameters that we know are present in the 7 real world and try to evaluate those parameters on 8 various cigarette design parameters. 9 Things such as the fabric type, what kind of 10 fabrics are out there and the proportion of 11 fabrics. We're told by the fabric industry that 12 they don't even know what the preponderance of the 13 fabrics are in the real world. So that's one -- 14 that's perhaps one, if not the overriding issue. 15 Others are configurations that are available 16 on the upholstery fabrics. The humidity in the 17 room. You know, a day like today with the humidity 18 outside being very high, that will affect whether 19 or not a cigarette will ignite a piece of 20 substrate. 21 The other would be the geometry that the 22 cigarette might fall into. There's a huge number 23 of parameters that are out there. We've looked at 24 all of those. We've looked at various parts of all 25 those and tried to assess that. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 98 1 Q. And given the fact that you've looked at all 2 those different parameters, has there been any sort 3 of cigarette design that has enhanced the ignition 4 propensity of the cigarette? 5 MR. CRAMPTON: Increased or reduced, 6 when you say "enhanced"? 7 Q. (By Mr. Grisham) Enhanced the safety. In 8 other words, made it less likely to ignite 9 substrate? 10 A. We have some parameters. When looked at 11 across, some of the -- of the external environment 12 parameters will reduce the likelihood of that 13 cigarette igniting the substrate. 14 Q. Okay. What are those parameters? 15 A. There's one parameter that I feel more 16 comfortable with than any of the other parameters. 17 And that parameter is the banded papers that we 18 have under develop now -- development now. To say 19 anything more about those is definitely in 20 proprietary area. 21 Q. Research at Philip Morris, along with outside 22 vendors with respect to banded papers, has been 23 going on for many, many years, hasn't it? 24 A. Yes, it has. 25 Q. As you sit here today in August of 1996, I MONICA WEIDMANN & ASSOCIATES (800) 969-2752 99 1 believe I hear you saying that you think the most 2 promise or hope in the future lies with research 3 related to banded cigarettes in reducing -- 4 A. That is my -- 5 Q. -- fires related to cigarettes? 6 A. As we sit -- as I sit here today, that is my 7 opinion, that's correct, as a researcher. 8 Q. How far away is Philip Morris from having such 9 a product like that available in the future? 10 MR. CRAMPTON: Objection; instruct the 11 witness not to answer. That's getting into the 12 trade secret. And we're now four plus years away 13 from the fire, so its relevance has diminished 14 quite a bit over time. 15 Q. (By Mr. Grisham) Are you going to follow the 16 attorney's advice? 17 A. Yes, sir. 18 Q. In undertaking research with respect to 19 Project Tomorrow, your goal and mission was to 20 reduce or to do research leading to the possibility 21 of the reduction of the number of fires caused from 22 cigarettes, correct? 23 A. Not exactly. 24 Q. Okay. How did I misstate it? 25 A. What we want to do is to reduce the number of MONICA WEIDMANN & ASSOCIATES (800) 969-2752 100 1 fires caused by the careless handling of 2 cigarettes. 3 Q. Okay. In so doing that, did you take a look 4 at any statistical information on where fires 5 occur, under what circumstances they occur, and any 6 other demographical or other evidence of fire 7 causation? 8 A. Would you please restate the question? 9 Q. Sure. In undertaking the goal of Project 10 Tomorrow, did you or anyone on your team, that 11 you're aware of, look at statistical evidence on 12 fire causation to assist you in doing your 13 research? 14 A. We looked at statistical information that was 15 made available to us. I don't know exactly how it 16 assisted us in our research, though. 17 Q. Okay. What sort of statistical information 18 were you provided? 19 A. Reports by N.F.P.A., National Fire Prevention 20 Association. Other organizations, we were aware of 21 some of those reports. 22 Q. From that information that you got from the 23 N.F.P.A. or other sources, did you -- were you able 24 to find information leading you to know what sort 25 of substances were most likely to be involved in MONICA WEIDMANN & ASSOCIATES (800) 969-2752 101 1 cigarette ignitions within the home? 2 A. As I recall, the ones most likely associated 3 with smoking-related materials were -- and the ones 4 we concentrated our efforts on were the upholstery 5 furnitures -- upholstered furniture. 6 Q. Are most home fires that are attributable to 7 smoking-related materials fires that originate in 8 upholstered furniture or bedding? 9 A. Is the question and/or bedding, or is it or 10 bedding? 11 Q. And/or. 12 A. And/or bedding. That's my understanding, yes. 13 Q. Do you know from the N.F.P.A. what their 14 statistical analysis has been in terms of what 15 percentage of home fires related to cigarettes or 16 smoking-related paraphernalia are involving 17 upholstered furniture or bedding? 18 A. I don't recall. 19 Q. By cigarettes and smoking-related materials, 20 are you excluding matches and lighters? 21 A. I can't recall whether that data excluded or 22 did not exclude it. 23 Q. In compiling this information about home fires 24 and learning that most related to smoking-related 25 materials are in bedding or upholstery, were you MONICA WEIDMANN & ASSOCIATES (800) 969-2752 102 1 then able to -- or did you then go and research 2 further what is the most likely type of material 3 that would be involved with the upholstered 4 furniture or bedding? 5 A. What do you mean by "material," please? 6 Q. Substrate and covering. 7 A. We undertook to try to find something out 8 about that and was -- we were not successful in 9 finding out from either the fabric industry or the 10 upholstery industry what the most prevalent one 11 was. 12 Although we did a number of surveys through 13 the Joint Venture, going out and buying upholstery 14 furniture, looking at the properties of that -- 15 going out, excuse me -- going out and buying 16 upholstery material, looking at the properties of 17 that material, as far as the weight and the texture 18 and all the parameters associated with fabric, 19 trying to assess what the most common one was that 20 we could buy, we did that kind of thing. 21 Q. What were the conclusions of that research? 22 A. Conclusions of the research was that, one, 23 there's a wide array of fabrics that are out 24 there. Most of the upholstery fabrics we looked 25 at, the vast majority did not ignite by any MONICA WEIDMANN & ASSOCIATES (800) 969-2752 103 1 cigarette. 2 In order for a fabric to be ignitable, it 3 had to have a large concentration of metallines in 4 it. 5 Q. Salts? 6 A. Salts, that's correct. It was -- of the 7 fabrics that were ignitable with cigarettes, the 8 cigarette design did not play a role in most of 9 those fabrics. There was a small number of 10 fabrics, about a third, that was sensitive, as I 11 recall. Those numbers are not -- don't hold me 12 exactly to these numbers. 13 There was about a third of those fabrics 14 that were ignitable with cigarettes that were 15 sensitive to the cigarette design. About half of 16 those went with some of the mass burn rate type 17 scale. The other half went against it. 18 Q. Okay. Was there -- 19 A. There was some other findings in there, and I 20 can't recall what they were. But that's in general 21 what the general research was. 22 Q. In other words, of the third that were 23 sensitive to cigarette design, about a -- 24 A. A third of the ones that were ignitable, which 25 was a very small fraction of the fabrics that were MONICA WEIDMANN & ASSOCIATES (800) 969-2752 104 1 out there. 2 Q. A third of the ones that were ignitable that 3 you looked at -- or did you look at every fabric 4 out there? 5 A. No, sir. 6 Q. Of what -- 7 A. There's thousands of fabrics out there. 8 Q. Of what you looked at--a third of those that 9 were ignitable--about half of the third were 10 ignitable under circumstances when the mass burn 11 rate was the parameter that was important; is that 12 what you're saying? 13 A. No, I don't think so. 14 Q. Okay. 15 A. Somehow I've got -- we look at the general 16 population of fabrics that are on the market. Most 17 of those are not ignitable with any cigarette, all 18 right. It seems like -- I don't know, I don't 19 recall exactly -- two-thirds of the fabrics that 20 are out there or greater are not ignitable at all. 21 Again, I don't recall that number exactly, but 22 there's a large fraction that are not ignitable. 23 Of the ones that are ignitable, most of 24 those don't discriminate amongst cigarette design. 25 So any cigarette design is going to ignite them, or MONICA WEIDMANN & ASSOCIATES (800) 969-2752 105 1 not relatively equally. 2 Of the ones that do discriminate--again, a 3 very small fraction of a small fraction--of the 4 ones that do discriminate, part of those go with 5 the NIST-style of ranking and part of those go 6 against the NIST-style ranking in about equal 7 portions. 8 Q. Okay. That's where I'm losing you in the 9 understanding. What do you mean go with the 10 NIST style? 11 A. Ranked according to the NIST style. 12 Q. I see. In other words, they -- 13 A. What NIST would say would be a high I.P. 14 cigarette would indeed have more ignitions than 15 what they'd say would be the low I.P. cigarettes. 16 The other portion would go just the opposite 17 of that. The high I.P. cigarettes would actually 18 cause more ignitions. The low I.P. cigarettes 19 would cause more ignitions than the high I.P. 20 cigarettes. 21 Q. That's what you call reversals? 22 A. Yes, sir, that's correct. 23 Q. Was any investigation done, to your 24 recollection, on fabrics that go into automobiles? 25 A. I don't know what fabrics go into automobiles. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 106 1 Q. And you don't know whether or not, by chance, 2 some of the fabrics that you looked at may have 3 been the same type that go into automobiles? 4 A. I really can't say. 5 Q. You didn't make a special effort to go out and 6 get automobile seat covering fabrics? 7 A. No, sir. Not to my knowledge, we didn't. 8 Q. Is there less variability in the type of 9 substrates available than on the type of material 10 coverings for upholstered furniture and bedding, 11 according to your investigation? 12 A. Okay. Please restate the question. 13 Q. Sure. When Philip Morris U.S.A. went out to 14 look at different fabrics--as you and I have been 15 discussing--and substrates that are available in 16 the real world, is it true that you found there is 17 less variability in the number of substrates than 18 there are in the number of material coverings in 19 upholstered furniture and bedding? 20 A. I still don't understand the question. What's 21 substrates and less variability? I really don't 22 understand the question, I'm sorry. 23 Q. Fair enough. I'll try to do a better job. 24 A. Well, I was confusing before so, sorry. 25 Q. That's okay. When you went out to try to find MONICA WEIDMANN & ASSOCIATES (800) 969-2752 107 1 a -- the types of materials that were out in the 2 real world on upholstered furniture and bedding, 3 you told me -- 4 A. I'm sorry, we did not look at bedding 5 materials. Maybe I've confused you there. We did 6 not exclude bedding, but we didn't go looking for 7 bedding. 8 Q. Okay. You went out and got materials out 9 there, and you said there are hundreds or maybe 10 thousands of different materials out there? 11 A. Yes, sir, right. We went into upholstery 12 recovering -- excuse me, fabric shops, asked for 13 upholstery fabrics--most popular upholstery 14 fabrics--and we got fabrics that were used on 15 upholstery. We didn't ask for bedding fabrics. 16 Q. Did you look at substrates? 17 A. By substrates you mean? 18 Q. The material underneath the covering for 19 upholstered furniture. 20 A. We did not study substrates. We haven't 21 studied substrates that much. We principally 22 concentrated on the foam that was used in the 23 NIST-style testing. We used that as sort of our 24 standard. We put fabrics on top of that and try to 25 evaluate one parameter at a time. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 108 1 Q. Is the foam -- first of all, what is the foam 2 used in the NIST testing? 3 A. It's a polyurethane foam, as I understand. 4 Q. Is the polyurethane foam that the NIST uses 5 and that Philip Morris uses typical of what is seen 6 in the real world? 7 A. In my opinion, it's not at this point. At the 8 point NIST picked it it was, because it changes in 9 time too. 10 Q. Okay. About when did the NIST pick that 11 polyurethane foam as the test substrate to use? 12 A. I'm thinking it was sometime after 1990, 13 perhaps 1991. I don't know the exact date. 14 Q. And since that time, you think that perhaps 15 that polyurethane foam is not typical of what's 16 seen in the real world, correct? 17 A. Correct. 18 Q. What type of substrates do -- would you expect 19 to see in a real world condition today? 20 A. It's my understanding that the foam industry 21 -- first of all, we've had to go away from freon 22 blowing agents to make it the foam. That's the 23 first -- one of the changes. 24 The other change is that most foam 25 manufacturers now make fire-retardant foams. They MONICA WEIDMANN & ASSOCIATES (800) 969-2752 109 1 will not allow an ignition to occur. And I think 2 that's pretty well dominating the industry at this 3 point. 4 So if we evaluated one of those at this 5 point, our test is no longer any good because we 6 don't get any ignitions at all, right. That's my 7 understanding. 8 Q. Before the -- before those changes in the foam 9 design, the industry's changes in the foam design, 10 prior to that time in '90 or '91, had there been a 11 fairly constant type of foam used out in the real 12 world for sometime? 13 A. I don't know. 14 Q. In other words, in 1980 you don't know what 15 type of foam was used typically in upholstered 16 furniture in the United States? 17 A. No, sir, I don't. 18 Q. Has the change in the manufacturer of foam 19 substrate had an effect on the research you and 20 others that predated you at Philip Morris have been 21 doing? 22 A. Well, I guess it has. We -- you know, we're 23 aware of that. So the type of research we have to 24 do we have to buy foam that's not available in the 25 marketplace to use for testing. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 110 1 Q. Has any of the effort by the Joint Venture or 2 CORESTA or Project Tomorrow dealt in any respect 3 with subjective characteristics of cigarettes? 4 A. Please restate that question, sorry. 5 Q. Sure. Have any of the research efforts or 6 evaluations through the CORESTA program or the 7 Joint Venture or your work in Project Tomorrow 8 dealt with any of the subjective characteristics of 9 the cigarette, such as flavoring, aesthetics? 10 MR. CRAMPTON: Objection; it's a 11 compound question. 12 Q. (By Mr. Grisham) Have any of the efforts of 13 the CORESTA project or the Joint Venture or your 14 work at Tomorrow dealt with any of the subjective 15 components of the cigarette? 16 MR. CRAMPTON: Same objection. 17 Q. (By Mr. Grisham) I don't think he's telling 18 you not to answer. 19 MR. CRAMPTON: No, I'm not. What I'm 20 thinking is if you asked the question with respect 21 to CORESTA and got an answer, then Joint Venture 22 and got an answer, and then Philip Morris, it might 23 be simpler. 24 Q. (By Mr. Grisham) Can you answer as to all 25 three without me asking you three separate MONICA WEIDMANN & ASSOCIATES (800) 969-2752 111 1 questions? 2 A. I can't answer. One answer does not fit all 3 three. 4 Q. Oh, yeah. I expect that, but can you tell me 5 the three -- 6 A. The Joint Venture, CORESTA have not done, to 7 my knowledge, any subjective work. 8 Q. Okay. Tomorrow has? 9 A. Tomorrow has done subjective work. 10 Q. What particular prototypes or cigarette -- 11 cigarettes that have been developed through 12 Tomorrow have been sent for subjective analysis? 13 A. What do you mean by "sent for a subjective 14 analysis"? 15 Q. Have been subjected to subjective analysis. 16 A. Where I'm having problems is subjective 17 analysis. That's a broad term. 18 Q. Yeah, I know. And I made it broad because I 19 want to make sure I'm encompassing all the things 20 you might look at, like flavoring, staining, size 21 of the rod, in terms of what people like and don't 22 like. So I'm including all those different 23 things. 24 A. We've done a lot of subjective analysis. 25 Q. Is there any particular prototype or number of MONICA WEIDMANN & ASSOCIATES (800) 969-2752 112 1 cigarette or style or design or experimental 2 research design that has been sent to subjective 3 analysis, or have there been many, many, many 4 different designs sent? 5 A. In this broadest description of "sent" and its 6 broadest description of "subjective analysis," we 7 looked at most everything. 8 Q. Okay. Is the subjective analysis done as a 9 part of the development department, or is it 10 subjected to that testing somewhere else in the 11 organization? 12 A. It's mostly with development. 13 Q. Who is in charge of that aspect of the 14 project? 15 A. I am. I'm in charge of the whole project. 16 Q. Have there been any prototypes or design types 17 that have had positive subjective test results? 18 A. In its broadest sense, yes. 19 Q. What design types or prototypes have had 20 positive subjective test results? 21 MR. CRAMPTON: You can answer that. 22 A. I've got -- 23 MR. CRAMPTON: This question is 24 respective, Tomorrow, from 1987 to the present? 25 MR. GRISHAM: Yes. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 113 1 A. We had -- I mean, it depends on the magnitude 2 of the change. You can get positive subjective 3 attributes from anything, all right. It also 4 depends on the style of tests being done. 5 Q. (By Mr. Grisham) Okay. Is there any 6 particular design or prototype that got or received 7 positive subjective testing results in the area of 8 aesthetics? 9 A. Yes. 10 Q. Before we go further into that type of 11 question, tell me what subjective characteristics 12 have been tested with respect to Tomorrow 13 prototypes and design types. 14 A. We look at the taste of the cigarette, the 15 appearance. And you mentioned some of them--the 16 staining, were the ashes proper or not. You don't 17 want -- when an ash is flaky, it falls off when 18 you're smoking. You also don't want a rod that's 19 stained. 20 And first and foremost, though, you want 21 something that tastes good, right. Otherwise, the 22 consumer is just simply not going to bother with 23 it. 24 Q. Are you a smoker? 25 A. Occasionally. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 114 1 Q. Is there any prototype or design -- 2 A. I'm not an expert smoker. 3 Q. Is there any design type or prototype of 4 cigarette that's come forth from the Tomorrow 5 research that resulted in positive subjective test 6 results in each of the areas you just mentioned? 7 MR. CRAMPTON: When you're talking 8 about these prototypes, are you talking about 9 something that was perceived to be reduced in 10 ignition propensity based on what they were 11 thinking at the time? 12 MR. GRISHAM: Yes, through Project 13 Tomorrow. 14 A. So it complies -- I mean, I'm -- it complies 15 with the subjectives as well as being something 16 that would be satisfying the goal of Tomorrow? 17 Q. (By Mr. Grisham) Yes. 18 A. Then we are up to today? 19 Q. Yes. 20 A. And I don't know the answer to that question 21 at this point. 22 Q. Okay. Can you explain to me why you don't 23 know? 24 A. Because some of the data that we're gathering 25 is still in process of being gathered. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 115 1 Q. Okay. Do you recall the goals that were set 2 forth in Project Hamlet? 3 A. No, I don't. 4 Q. Through 1992, ending the last day of 1992, was 5 there any prototype or design type of cigarette 6 which came through the research efforts of Project 7 Tomorrow that met the goals of Project Tomorrow 8 while at the same time meeting the subjective 9 requirements that you've outlined for me? 10 A. No, sir, not to my knowledge. 11 Q. Were there any that came close? 12 MR. CRAMPTON: In both aspects or -- 13 MR. GRISHAM: In both. 14 A. Coming close is an awful term, and I don't 15 know what that means. 16 Q. (By Mr. Grisham) Kind of like being sort of 17 pregnant, right? 18 A. We're not playing horseshoes in this. 19 Q. Okay. Well, are there any that met the goals 20 of Tomorrow and met every other aspect of the 21 subjective testing criterion except taste? 22 A. Please restate the question. I'm sorry, I 23 didn't -- did not follow to the end. 24 Q. Are there any cigarette design types or 25 prototypes that came out of the Tomorrow research MONICA WEIDMANN & ASSOCIATES (800) 969-2752 116 1 that met all but one of the subjective 2 requirements? 3 A. In 1992? 4 Q. Up through 1992. 5 A. No, sir, not that I'm aware of. 6 Q. Through the CORESTA research, the Tomorrow 7 research and the Joint Venture research, were you 8 looking at parameters other than tying to ignition 9 in terms of judging the efficacy of what you were 10 trying to achieve; that is, reduction in fires from 11 mishandled smoking materials? 12 A. Through the CORESTA and Joint Venture? 13 Q. Or -- I think I said or Tomorrow, including 14 Tomorrow. 15 A. Yes. 16 Q. Please explain. 17 A. We were looking at numbers of ignitions on 18 various substrates. I don't recall us doing time 19 to ignition. 20 Q. Was the time to ignition on various substrates 21 of relevance in your testing or analysis? 22 A. That's the 1992, also, time frame? 23 Q. Up through 1992. 24 A. I don't think so. 25 Q. Was the -- was Project Tomorrow -- did Project MONICA WEIDMANN & ASSOCIATES (800) 969-2752 117 1 Tomorrow also encompass an objective of developing 2 a cigarette type that would self-extinguish within 3 a certain number of minutes? 4 A. I can't recall having that objective in 5 Project Tomorrow. 6 Q. So that I understand what you're saying, your 7 focus was on number of substrates ignited and was 8 not really upon how long it took to ignite that 9 substrate? 10 A. Well, if it's ignited, it's ignited, right. 11 Q. Right. Are you familiar with any Philip 12 Morris research that had focused more on the time 13 to ignition issue in the past? 14 A. As I understand it, Hamlet was focused on 15 that. 16 Q. That's what I was trying to -- the distinction 17 I'm trying to make. Was Hamlet more of a time to 18 ignition research project, whereas yours is a 19 number of ignitions project? 20 A. Maybe I need to -- yes. 21 Q. Why the change in focus? 22 A. Well, we started off to say on Tomorrow -- 23 when we first started Project Tomorrow, we were 24 focused on mass burn rate. Hamlet had been focused 25 on time to ignition as some characteristic -- MONICA WEIDMANN & ASSOCIATES (800) 969-2752 118 1 measurement characteristic of the cigarette. 2 Well, when we started Tomorrow, we felt we 3 didn't have to do testing because we thought we 4 knew enough that we could say if we can reduce the 5 mass burn rate, we can predict what ignitions would 6 be. Well, we can't do that. It doesn't work. 7 Mass burn rate is not a predictor of numbers of 8 ignitions or even times to ignition. So we had to 9 move beyond that, beyond the mass burn rate and 10 beyond the time to ignition. 11 Q. Is time to ignition, as a focus of study, 12 something that's important to real world analysis 13 of fire causation in that the length of burn time 14 relates to the potential for the substrate to be 15 heated to a point that would allow ignition to 16 occur of materials surrounding the substrate? 17 A. As I recall the time to ignitions that were 18 done in Hamlet, they were small numbers--ten 19 minutes or so, ten minutes or less. 20 Q. Okay. What I'm getting at is -- I guess the 21 question I'm posing is, does the time to ignition 22 as an issue of cigarette science to focus on become 23 important if one considers that a certain amount of 24 time of exposure to heat is required for a 25 substrate to allow heat to conduct to materials to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 119 1 ignite -- to cause ignition? You follow what I'm 2 asking? 3 A. Not exactly. 4 THE WITNESS: Could we take a short -- 5 let me ask you a question off the record or 6 whatever. 7 MR. CRAMPTON: Sure. 8 (Brief recess.) 9 Q. (By Mr. Grisham) Dr. Whidby, I think the area 10 that I was inquiring in had to do with an area of 11 cigarette science and research dealing with time to 12 ignition. And what I have, what I'd like to 13 propose to you, is a concept and ask you if you 14 agree or disagree. 15 That is, the ignition of upholstered 16 material generally occurs by a cigarette through 17 the conduction of heat through the substrate, is 18 that -- 19 A. From the cigarette to the substrate, yes, I'd 20 agree with that. 21 Q. Given that is true, how does the ignition of 22 the substrate covering occur? 23 A. It's some very complex physics involved here 24 and we're not sure we fully understand. As a 25 matter of fact, I'm sure we don't fully understand MONICA WEIDMANN & ASSOCIATES (800) 969-2752 120 1 it. But by and large, the cigarette is on the 2 substrate and, of course, it's a dynamic thing 3 because the cigarette is burning back, right. 4 Q. Right. 5 A. And the cigarette's somewhat variable, but the 6 fabric underneath is very variable. So you've got 7 micro area -- microscopic areas of concentration of 8 metallines--salts--and microscopic changes in the 9 density of the fabric, thickness of the fabric and 10 all sorts of other things that can occur. 11 And as this cigarette burns back, at some 12 point in time that particular region of the fabric, 13 small as it might be, gets above its ignition 14 temperature. And the ignition temperature of the 15 fabric is dependent also upon how much oxygen the 16 cigarette's drawing away from that area. 17 Because what you'll find is that most -- in 18 most cases, the ignition temperature of the fabric 19 is below what the ignition temperature would be if 20 it was in contact with the cigarette. 21 So the cigarette takes the oxygen away and 22 raises the ignition temperature. But sometime 23 during this burn back, it will cause the fabric to 24 ignite. 25 Q. Are those hot spots you're referring to, the MONICA WEIDMANN & ASSOCIATES (800) 969-2752 121 1 microscopic spots? 2 A. Yeah, probably hot spots that would occur. 3 And then you have to have propagation, of course, 4 away from the coal. 5 Q. Propagation of the -- 6 A. -- of the smoldering process. I mean, you 7 don't get flaming ignition in these cases. 8 Q. Absolutely. We're talking about smolder? 9 A. That's right. 10 Q. What I was understanding, and perhaps this is 11 a misunderstanding, but does the substrate have to 12 be heated up to translate that heat into smolder 13 and then later into ignition? 14 MR. CRAMPTON: By "substrate," do you 15 mean foam or fabric or both? 16 MR. GRISHAM: I was referring to the 17 foam. I have envisioning in my mind a foam 18 substrate covered by fabric with a cigarette laying 19 flat. 20 MR. CRAMPTON: Sometime substrate is 21 referred to as the whole system, the fabric and 22 foam. 23 A. And that's what I was using. I apologize for 24 the confusion there, if I did confuse you. I was 25 talking about the whole unit, right, the substrate. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 122 1 Q. (By Mr. Grisham) Okay. 2 A. And you're talking about the foam? 3 Q. Yes. 4 A. I think, in general, the foam melts away. And 5 it forms a -- if you look under where a cigarette's 6 burned back on fabric that didn't ignite, you'll 7 see an indentation on the foam and sort of a track 8 where the cigarette was, and it sort of melted away 9 and moved back away from it. 10 Q. Once ignition occurs, the cigarette's no 11 longer in the equation, correct? 12 A. Once the ignition occurs and it's a sustained 13 ignition -- 14 Q. Yes. 15 A. -- in most cases, I think you can take the 16 cigarette away and it's no longer involved. 17 Q. Okay. In circumstances whereby the cigarette 18 burns and ignition is reached, sustained ignition, 19 and a fire results, will a silhouette of the 20 cigarette typically be left on the substrate or 21 material covering the substrate? 22 A. Please, I'm sorry, once more. 23 Q. Sure. Assuming that a cigarette on a flat 24 substrate covered with material is allowed to burn 25 and because of the properties involved ignition MONICA WEIDMANN & ASSOCIATES (800) 969-2752 123 1 occurs and it's a sustained ignition and it 2 propagates, will a cigarette silhouette typically 3 be left on the substrate or its covering following 4 the fire? 5 A. I don't think so. 6 Q. As a cigarette burns back along the length of 7 the rod on a substrate like we've described, as I 8 understand the physics of it--and believe me, I 9 understand them very minimally--heat convects 10 upwards into the air, correct? 11 A. Convection is into the air, yes. 12 Q. And it conducts into the substrate? 13 A. That's correct. 14 Q. And radiates off the tip of the cigarette? 15 A. That's correct. 16 Q. And if what I hear you saying, I believe, is 17 ignition occurs as the cigarette burns along the 18 axis of the rod because, in your opinion, it heats 19 the material covering the foam to a point that it 20 exceeds the ignition point of the material? 21 A. That's correct. 22 Q. Because of the salts and other microscopic 23 deviations in the material covering the foam? 24 A. That's what I believe, that's right. 25 Q. Have you ever heard of the theory that the MONICA WEIDMANN & ASSOCIATES (800) 969-2752 124 1 cigarette smolder occurs as a process of conduction 2 of heat into the foam substrate until the point the 3 substrate reaches a temperature that's above the 4 ignition point of the fabric covering the 5 substrate, thus, causing ignition? 6 A. So let me be clear. Have I heard the theory 7 that the substrate goes above the ignition 8 temperature of the fabric? 9 Q. No, no. I'm trying to word this correctly and 10 it's difficult. But have you ever heard of the 11 theory that the causation of smolder and ultimate 12 ignition through cigarette lying on substrate is a 13 result of conduction of heat into the substrate and 14 that that conduction continuing until the ignition 15 temperature of the covering is reached? 16 A. I don't think so. That theory doesn't make a 17 lot of sense to me. 18 Q. Okay. Why does it not make sense? 19 A. The substrate -- it doesn't make physical 20 sense to me. 21 Q. Okay. Explain to me where the reasoning's off 22 there, because we may not be communicating. 23 A. Is the continuing transfer of heat from the 24 cigarette into the substrate until something's 25 reached. I don't understand what you meant by MONICA WEIDMANN & ASSOCIATES (800) 969-2752 125 1 that. 2 Q. The ignition point of the material covering 3 the substrate is reached? 4 A. It just doesn't make sense. 5 Q. Okay. Does it not make sense because the 6 substrate you predict has a much lower or higher 7 ignition rate than the material or lower? 8 A. Like I said before, I have -- I don't -- well, 9 I think I said it before. I don't see the 10 substrates generally igniting. It's the fabric 11 above the substrate that ignites. 12 Q. Sure. That's what I'm trying to say and maybe 13 we're just not talking the same language. But 14 assuming this pen is a cigarette lying on a 15 substrate covered with material, I was presupposing 16 a theory whereby heat from the burning rod along 17 the axis conducts down into the substrate and heats 18 up the substrate in different directions. 19 And the heat from the cigarette conducting 20 into the substrate raises the temperature of the 21 substrate until it starts melting away, and the 22 temperature is high enough to ignite the covering 23 somewhere around the cigarette -- 24 A. I don't subscribe to that at all. 25 Q. Okay. Now, tell me why. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 126 1 A. Because I don't believe the substrate -- first 2 of all, the physics is not right. The -- what 3 you're telling me is that the substrate is going to 4 get hotter than the fabric that's right under the 5 cigarette. That doesn't make sense. 6 Q. Okay. 7 A. And another thing is, as I told you before, 8 the foam will melt away, right, an indentation of 9 it. So then somehow you've got to get the heat way 10 away from the cigarette, the coal of the 11 cigarette--that's the only hot part of it--and then 12 somehow get that back into the fabric, it simply 13 doesn't make sense to me. 14 Q. Fair enough. So in your opinion, the 15 ignition, under those presupposed facts, is going 16 to occur at some hot spot--and we talked about 17 those a minute ago--underneath the burning rod, 18 smoldering rod? 19 A. That's correct. That's my opinion. 20 Q. Is it the heat from the ash and coal directly 21 on the material that causes ignition, or is it the 22 heat that's being conducted through the substrate 23 that somehow causes the ignition? 24 A. Now, the substrate's the foam, right? 25 Q. Yes. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 127 1 A. I think it's the heat from the coal. 2 Q. Going back to the assumption of the cigarette 3 lying on the flat substrate covered with material 4 and the idea that heat conducts into the substrate 5 and that foam is going to melt away, but it's also 6 going to conduct heat away from the cigarette rod, 7 are there circumstances, in your opinion, whereby 8 the heat could be conducted away from the rod and 9 contact something with a very low ignition point 10 and cause a fire to erupt elsewhere? 11 A. Do I believe that? 12 Q. Yes. 13 A. No, sir, I don't. 14 Q. Why not? Why is that not something you 15 believe is supported by science or physics? 16 A. I hope physics and science are the same. 17 Q. Sometimes. 18 A. The foam melts at a fairly low temperature, 19 and I don't know of a cellulosic fabric or any 20 other fabric that will ignite at those low melting 21 points. And as the foam melts, it cools down. It 22 cools the region around it. That's the melting -- 23 in the heat of melting of the foam. 24 So it's absorbing energy, converting itself 25 to a liquid and you're not getting -- you're not MONICA WEIDMANN & ASSOCIATES (800) 969-2752 128 1 getting heat that's transferred very far away from 2 the coal. 3 I don't know that we've made measurements. 4 I don't know that we haven't made measurements, but 5 we've put thermocouples so you can actually make 6 those measurements. I don't think you're going to 7 find it very hot at all at great distances from the 8 coal. 9 Q. At what temperature does the foam begin to 10 melt? 11 A. Don't know the answer to your question. I 12 can't recall. 13 Q. What is the ignition point of paper? 14 A. I don't recall exactly either. 15 Q. I'm going to hand you what's been marked as 16 Exhibit 1. It's just a copy of the Notice of 17 Deposition with the subpoena duces tecum. I'm 18 going to ask you some questions about Categories 1 19 through 5. Let me look at them for a moment 20 first. I'll hand it to Mr. Crampton first. 21 MR. MARKEY: Is that 1? 22 MR. GRISHAM: That is 1. 23 Q. (By Mr. Grisham) Take a moment to review 24 that, if you will. 25 A. (Witness complies). MONICA WEIDMANN & ASSOCIATES (800) 969-2752 129 1 MR. GRISHAM: First of all, for the 2 record, I'm acknowledging that I didn't ask you 3 folks to bring any documents that you've already 4 produced to me in response to request for 5 production. 6 MR. CRAMPTON: Okay. Very good. 7 Q. (By Mr. Grisham) That having been said, 8 Dr. Whidby, are you aware of the existence of any 9 documents fitting into Categories 2 through 5? 10 MR. CRAMPTON: It might make it easier 11 for him if you say other than those that have been 12 collected by counsel for production. 13 MR. GRISHAM: Yeah. I'm assuming he 14 knows what that is. That's the problem I have with 15 that. 16 MR. CRAMPTON: Well, he knows because 17 he showed us where they are so... 18 MR. GRISHAM: Okay. Very good. 19 Q. (By Mr. Grisham) Let's take No. 2, first of 20 all. Are you aware of any documents that exist or 21 do you have them with you that fit into the 22 parameters of Category 2 that have not already been 23 produced to counsel? 24 A. No, sir, I don't. 25 Q. About how many documents were produced to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 130 1 counsel? 2 A. I really don't know. I don't recall. All 3 that I had. 4 Q. Okay. I'll ask you the same question with 5 respect to 3, 4, and 5. Have you produced all 6 those to your attorney? 7 A. Yes, sir, I have. 8 Q. Have you produced deposition transcripts, 9 likewise, to your attorney? 10 A. Yes, sir, I have. 11 Q. How long ago? 12 A. I don't recall. 13 Q. But in relation to production of documents in 14 this case, right? 15 A. Yes, as far as I know. 16 MR. CRAMPTON: The documents could be 17 used in other cases as well. 18 MR. GRISHAM: I got you. 19 MR. CRAMPTON: And they were collected 20 for prior cases, and they will be used in future 21 cases once they've been collected. 22 Q. (By Mr. Grisham) Are there files that you 23 have assembled in the course of your work that deal 24 with the CORESTA project? 25 A. Yes, sir. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 131 1 Q. What are the volume of those files in terms of 2 number of pages or feet or inches? 3 A. I don't recall. 4 Q. I'll ask you the same with respect to Project 5 Tomorrow. Can you quantify the volume of documents 6 that you -- 7 A. No, sir, I can not. 8 Q. Are they all kept at the research and 9 development area? 10 A. Yes, sir, as far as I know. 11 Q. Let me see that right quick and make sure I've 12 asked all the questions. 13 A. Sure. 14 Q. With respect to the issue of the cause and 15 origin of fires related to cigarettes--which you 16 and I have discussed a little bit a moment 17 ago--does the importance of conduction of heat, hot 18 spots and all the things that we've talked about 19 that go into causing a cigarette fire become 20 unimportant if the cigarette self-extinguishes 21 itself -- that's a double -- if it 22 self-extinguishes within a minute to three minutes 23 to the point it's not in use any longer? 24 A. I can't say that. 25 Q. Does the process of smolder, whereby the MONICA WEIDMANN & ASSOCIATES (800) 969-2752 132 1 cigarette burns down its axis until such time as it 2 heats the substrate in these hot spots that you've 3 described for me and ignites, occur usually after 4 three minutes? 5 A. I can't say that either. 6 Q. If the industry, the tobacco industry, could 7 create a cigarette that extinguished within three 8 minutes of being used, do you think that a majority 9 of cigarette-related fires could be prevented? 10 A. I don't know. I simply don't know. 11 Q. Do you think that should the industry be able 12 to develop a cigarette that self-extinguished 13 within three minutes of its no longer being used, 14 that that would positively impact the fire 15 statistics related to cigarettes? 16 A. In my opinion, I think it might. But I don't 17 know. 18 Q. With respect to cigarette-related fires, in 19 your experience, do you find that the cigarette is 20 usually lying in some crevice as opposed to on a 21 flat surface? 22 A. The question once more, I'm sorry? 23 Q. Sure. In the course of your research, study 24 and evaluation of cigarette fires and the chemistry 25 related to cigarette design as it relates to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 133 1 cigarette fires, have you found that it's more 2 likely that a cigarette fire is going to result 3 from a cigarette lying in a crevice or on a flat 4 surface? 5 A. I haven't done that research. 6 Q. From any research that you've reviewed or from 7 any other source, have you arrived at an opinion on 8 that? 9 A. I've been told by people--primarily people at 10 the CPSC--that most of the cigarettes land in 11 crevices. 12 Q. Do cigarettes lying in crevices typically 13 smolder longer before ignition than cigarettes 14 lying on a flat surface--all other things being 15 equal, draft, material type, et cetera? 16 A. I can't say that from data. 17 Q. Do you have a belief from what you've been 18 told or studied? 19 A. I really don't know. I mean, I can't say 20 whether -- I think it would depend a lot on the 21 cigarette, a lot on the, you know, design of the 22 cigarette. I think there would be a lot of 23 things. I just can't really say which one, whether 24 it would or would not. 25 Q. In your opinion, does cigarette circumference MONICA WEIDMANN & ASSOCIATES (800) 969-2752 134 1 play a role in determining whether or not the 2 ignition propensity of the subject cigarette is 3 higher or lower? 4 A. Not in my opinion, no. 5 Q. Are you aware of research that suggests 6 otherwise? 7 A. Am I aware of research that suggests 8 otherwise? Yes. 9 Q. Are there any contemporaries that you're aware 10 of now that hold the opinion that a lower or 11 smaller circumference cigarette indeed reduces the 12 propensity of a cigarette to ignite a substrate? 13 MR. CRAMPTON: Objection. I just don't 14 know what you mean by "contemporary." 15 A. I was going to ask for that. 16 Q. (By Mr. Grisham) Sure. I was referring to 17 other folks and your position, maybe, at R.J.R. or 18 maybe folks in your department? 19 A. No. I really can't say. I can't answer the 20 question. I don't know of anybody that does, but 21 researchers are a diverse group of people and they 22 hold a lot of opinions. 23 Q. Yes, they are. What do you think is the 24 primary component of the many we've talked about in 25 making a cigarette less prone to ignite substrate? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 135 1 You just told me circumference is not one, in your 2 opinion. 3 A. I think the primary component of the issue is 4 the fabric, and that is the overriding parameter 5 that affects everything. 6 Q. If we ignore that for a moment and just focus 7 on the cigarette, what do you think is the primary 8 factor in reducing ignition propensity? 9 A. That would depend upon the fabric that you're 10 looking at. 11 Q. Some instances the paper, a denser paper, less 12 porous paper might on a certain fabric have less 13 propensity to ignite, correct? Whereas on another 14 fabric it might have no effect at all; is that your 15 belief? 16 A. It can be a wide array of responses, that's 17 correct. 18 Q. Is there any one design that you're aware of 19 that produces the highest -- the lowest propensity 20 to ignite across the widest array of materials? 21 A. Yes. 22 Q. What is that? 23 A. The one that I'm aware of is the banded paper. 24 Q. Again, we're trying to respect the proprietary 25 nature of that. I'm going to ask a few questions MONICA WEIDMANN & ASSOCIATES (800) 969-2752 136 1 along those lines. Is the banded paper something 2 that's being supplied by another -- an outside 3 vendor? 4 A. I have a hard time answering that question. 5 Q. Let me go at it from another -- 6 MR. CRAMPTON: Is it because of its 7 ongoing research right now? 8 THE WITNESS: Yes. 9 Q. (By Mr. Grisham) All right. Let me go at it 10 from another direction. Philip Morris U.S.A. has 11 been investigating the efficacy of banded paper for 12 a number of years in reducing the ignition 13 propensity of cigarettes, correct? 14 A. Yes, sir, that's correct. 15 Q. Is the current research, that is, of a 16 proprietary nature that you were speaking of, 17 something that involves any of the other type of 18 designs that have been considered in the past or 19 researched in the past or tested in the past? 20 A. Are you speaking about the banded paper 21 itself? 22 Q. Yes. 23 A. Tested in the past? 24 Q. Researched, considered, evaluated? 25 A. I think the paper -- the banded paper we have MONICA WEIDMANN & ASSOCIATES (800) 969-2752 137 1 now is not like it was in the past, if that answers 2 your question. 3 Q. Well, it heads me in the right direction. How 4 is it different? And I ask that within these 5 parameters. And I'm wondering if there's some new 6 -- if there's some new chemical that's been 7 created or compound that's been created like 8 kryptonite or something that makes these bands 9 bullet proof, so to speak? 10 A. I'll tell you what's in the -- what's in the 11 patent literature on this. We have come up with a 12 new process for making banded papers. 13 Q. Okay. And that's a patented process, or is it 14 pending patent? 15 A. I'm not sure whether it's pending or is 16 patented, and I don't know the answer to that. 17 The details of our current process, the very 18 details that will make them proprietary, are not 19 patented, of course. 20 Q. Okay. Without going, at this moment, into 21 those particular areas that are proprietary and 22 generally talking about the concept of banded paper 23 and fire prevention, is it generally true that the 24 concept is that if one can achieve a paper with 25 bands circling the circumference of the rod at MONICA WEIDMANN & ASSOCIATES (800) 969-2752 138 1 strategic areas down the rod, that somehow the 2 smolder of the cigarette will cease once it reaches 3 the band? 4 A. Yes, sir. 5 Q. That's the general principal, correct? 6 A. Yes, sir, that's the general principal. 7 Q. And that has been researched for over two 8 decades? 9 A. Yes, sir. 10 Q. Is -- assuming one could find a band that 11 would work, is the principal behind that theory 12 that if you can stop the smolder and, thus, stop 13 the conduction of heat and stop the coal from 14 transferring down the rod of the cigarette, you're 15 going to prevent the opportunity for ignition? 16 A. If the cigarette's out, it's not going to 17 cause a fire. I believe that. 18 Q. Okay. And the theory behind banded paper is, 19 should you find one that works, the cigarette will 20 go out when it reaches the band? 21 A. On the substrate, yes. 22 Q. Is that a result of less time that the hot 23 portion of the cigarette is exposed to the 24 substrate or less substrate that the cigarette is 25 exposed to? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 139 1 A. I think it relates to the time of exposure. 2 Q. So the longer the cigarette is allowed to 3 smolder, the greater the opportunity for ignition, 4 all other things being equal? 5 A. All other things being equal, I think that's 6 also true. It may not ignite, but it might ignite. 7 Q. The opportunity for ignition is more likely? 8 A. Yeah. What scientists sometimes do is take it 9 to the absurd extreme. If it's not there at all, 10 it won't ignite, right? 11 Q. Exactly, that's one extreme. To that extent, 12 then, time to ignition is an important factor? 13 A. Time to ignition is important in that case, 14 yes. 15 Q. What is your definition of "smolder"? 16 A. Let's limit it to an upholstery fabric, if you 17 will. 18 Q. Okay. 19 A. The fabric has gone above its ignition 20 temperature, so it's ignited with -- and then it 21 continues to oxidize or smolder without any 22 additional input of heat, so then it's a sustained 23 smoldering ignition. 24 Q. It's a self -- 25 A. There's no -- MONICA WEIDMANN & ASSOCIATES (800) 969-2752 140 1 Q. I'm sorry. 2 A. There's no -- 3 Q. It's a self-sustaining fire at that point? 4 A. Yes. It's self-containing smoldering 5 ignition, yes. I mean, it's not flames. Flaming 6 ignition is -- the physics of flaming ignition and 7 the physics of smoldering ignition is completely 8 different. 9 Q. I don't want to appear like a pyromaniac or 10 anything, but I do want a little bit more 11 information on that. As I understand it, then, 12 smolder is the concept of ignition having been 13 reached and it being self-sustained? 14 A. Right. 15 Q. And that doesn't mean flames or anything like 16 that? 17 A. Right, just -- right. 18 Q. Assuming that a cigarette, a given cigarette, 19 is lying flat on substrate or, for that matter, in 20 a crevice, and assuming further that smolder is 21 achieved, how does that process proceed to flame? 22 A. It's a good question. It's a lot of physics 23 involved. I don't know the answer to that. 24 Q. Assuming that you have a cigarette lying on a 25 flat substrate and it's burning down the axis of MONICA WEIDMANN & ASSOCIATES (800) 969-2752 141 1 its rod and it's conducting heat into the 2 substrate, including the covering, can the heat 3 from the tip of the cigarette, as it progresses 4 down the axis, conduct into the covering over the 5 foam of a particular substrate and translate over 6 to another article with a very low ignition point 7 and ignite the other article? 8 A. We discussed that earlier. I simply don't -- 9 I'm sorry. 10 Q. Well, we discussed something a little bit 11 different then. 12 A. Okay. I'm sorry. 13 Q. I probably wasn't clear. I was talking -- I 14 thought you were talking earlier about conduction 15 down into the substrate and away from the 16 cigarette. And you described very well how it 17 melts, and you don't think it goes very far. 18 This time I'm talking about the covering. 19 And I'm thinking -- in my mind I'm picturing a 20 velvet covering used on the mock-ups by NIST, for 21 instance. Can the cigarette heat up the covering 22 over the substrate and conduct heat outward to low 23 ignition? 24 A. I don't think so. The substrates, such as -- 25 or coverings or fabrics, are very poor conductors MONICA WEIDMANN & ASSOCIATES (800) 969-2752 142 1 of heat, extreme poor conductors of heat. I mean, 2 you can -- just a heating pad, you know, and hold a 3 hot iron is the example of that. You know, very, 4 very hot, you don't burn yourself because the thin 5 coating is no heat transferred to your hand. So I 6 don't believe that happens. 7 Q. Assuming that the cigarette's lying on the 8 flat surface substrate cover with, say, a velvet 9 material, how far out do you feel like the heat 10 would conduct to the point a human could feel heat 11 around the cigarette in that sort of material? 12 A. I don't know exactly. But on a -- take a 13 cigarette, for example, it's made out of cellulose 14 materials, whatever. I do know that very -- within 15 a couple of millimeters behind the coal, you're 16 back almost to room temperature. 17 So there's virtually no transfer of heat 18 back into the cigarette, which would be the same 19 thing with a cigarette laying on the fabric. It's 20 going to be a very small number of millimeters that 21 you're going to have it back to room temperature. 22 Q. Probably the size of a quarter? 23 A. Oh, much, much smaller than that. I mean, I 24 can go to the laboratory and make that measurement, 25 but I haven't. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 143 1 Q. That's okay. 2 A. Physics 101. 3 (Whidby Exhibit No. 3 was 4 marked for identification.) 5 Q. (By Mr. Grisham) Dr. Whidby, I want to hand 6 you what's been marked Exhibit 3, and I'll purport 7 to you I believe it's your C.V. And I would like 8 to ask you some questions about it after you've had 9 a chance to review it. 10 A. Okay. 11 Q. Is that, in fact, your C.V.? 12 A. It's -- yes, it's one. It's just a touch out 13 of date, but certainly -- 14 Q. That's what I was going to ask you, about when 15 that C.V. was created or when it was current? 16 A. It was probably current last year. 17 Q. What substantial changes have been made in -- 18 A. My oldest daughter got married. 19 Q. What's that? 20 A. My oldest daughter got married. 21 Q. Okay. Is there anything else? 22 MR. CRAMPTON: Is there a change in the 23 name? 24 Q. (By Mr. Grisham) Is there anything else of 25 substance that's changed? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 144 1 A. No, sir, not that I know of. It's Rachelle 2 Leigh Banton. 3 (Whidby Exhibit No. 4 was 4 marked for identification.) 5 Q. (By Mr. Grisham) Doctor, I want to hand you 6 what's been marked as Exhibit 4, and ask you if you 7 can identify that document? 8 MR. CRAMPTON: Can you tell me what 9 these Bates numbers are on there? I recognize the 10 document. I just don't recognize it with those 11 numbers on it. 12 MR. GRISHAM: I don't know. I don't 13 believe they are our numbers. 14 MR. CRAMPTON: Okay. 15 MR. GRISHAM: The answer is I don't 16 know. 17 MR. CRAMPTON: These were not produced 18 by Philip Morris? 19 MR. GRISHAM: No. 20 (Whidby Exhibit Nos. 5 - 7 were 21 marked for identification.) 22 (Brief recess.) 23 Q. (By Mr. Grisham) Dr. Whidby, I have marked 24 for identification purposes Plaintiff's Exhibits 4, 25 5, and 6 to the Whidby deposition. Have you had an MONICA WEIDMANN & ASSOCIATES (800) 969-2752 145 1 opportunity to look over Exhibits 4, 5, and 6? 2 A. Yes, sir, I have. 3 Q. Do you recognize Exhibits 4, 5, and 6? 4 A. Yes, sir, I do. 5 Q. What do those documents -- what are those 6 documents? 7 A. They're affidavits. 8 Q. Are they affidavits containing your testimony? 9 A. Yes, sir. 10 Q. Are they each and every one signed by you? 11 A. Yes, sir. 12 Q. Do they appear to be accurate replications of 13 the original documents? 14 A. As far as I can tell with my reading, yes, 15 sir. 16 Q. Okay. I don't have the originals. All I have 17 are copies. But I want to make sure that from your 18 reading they appear to be accurate depictions -- 19 A. I did not find anything in there that was 20 outside of that. 21 Q. And they are all notarized and attested to, 22 correct? 23 A. Yes, sir. 24 Q. What -- do the dates which appear on the 25 affidavits necessarily tell us at or near the day MONICA WEIDMANN & ASSOCIATES (800) 969-2752 146 1 on which you signed them? 2 A. The date you're speaking to is back where I 3 signed here? 4 Q. Yes, sir. 5 A. Yes, sir, that's the -- that is the day I 6 signed them. 7 Q. Okay. What was the purpose that these 8 affidavits were made for? 9 MR. CRAMPTON: Objection to the extent 10 there might be anything -- privileged 11 communications with counsel as to that. But if -- 12 I mean, if you're talking about for the purposes of 13 the case, that's not privileged I don't think. 14 MR. GRISHAM: Actually that's what I 15 was asking. 16 A. They were for the case involving -- 17 Q. (By Mr. Grisham) They were for the purposes 18 of the Kearney case? 19 A. Yes, sir. 20 Q. And do each of the affidavits identified as 4, 21 5, and 6 contain opinions that you gave in the 22 course of that case? 23 A. Yes, sir. 24 Q. Having had an opportunity to review these 25 affidavits today and some time having passed since MONICA WEIDMANN & ASSOCIATES (800) 969-2752 147 1 you made the affidavits, is the information 2 contained in Exhibits 4, 5, and 6 still true and 3 correct and accurate? 4 A. Without having reviewed them in great detail, 5 as far as I can tell, most of the opinions I have 6 in there, yes, they are still accurate. 7 Q. Is there anything that stands out in your mind 8 as being inaccurate? An example may be, gee, since 9 I've made that affidavit, I've done more work and 10 I've changed my mind about a topic or I wasn't 11 exactly right about a topic? 12 A. I'll have to review them topic by topic in 13 order to say that, which I did not do in any great 14 detail. And I apologize for that. 15 Q. That's okay. That's all right. 16 A. If you have something, you know, particular, 17 please ask. 18 Q. Okay. In some of the testimony that you gave 19 in the affidavits, you describe crevice testing of 20 cigarettes. Is the crevice testing that you were 21 referring to testing that was done a part of -- as 22 a part of the CORESTA project or the Joint Venture 23 or Tomorrow or some other project? 24 A. I can't recall doing CORESTA testing on 25 crevice nor Joint Venture testing on crevice at MONICA WEIDMANN & ASSOCIATES (800) 969-2752 148 1 that point. Most likely it was Tomorrow testing. 2 Q. What sort of mock-up has been used for the 3 crevice testing that you performed? 4 A. Most of the mock-ups that I'm aware of were 5 with 90-degree crevices. 6 Q. With the standard NIST materials constituting 7 the substrate and substrate covering? 8 A. As I recall. 9 Q. One of the -- I'll represent to you -- and if 10 we need to look at it too. One of the statements 11 that you make in Exhibit 4 is that during the 12 course of some testing of substrates, low or small 13 circumference, low packing density or low permeable 14 paper cigarettes tended to show a reduction in the 15 number of ignitions in laboratory testing. Was 16 that a correct statement? 17 A. Yes, I think so. 18 Q. Paragraph 7, sentence 1? 19 A. All of these were absolutely correct when we 20 wrote them, of course. 21 Q. I understand that. But since there's been -- 22 there's been some time that passed, I want you to 23 make sure that nothing's changed since the time you 24 made the statement that might alter your opinion. 25 A. The paragraph 7 you're speaking of talks about MONICA WEIDMANN & ASSOCIATES (800) 969-2752 149 1 the reversal phenomenon, yes. 2 Q. That's what I was going to get into. 3 A. Yes. 4 Q. Generally the statement you made in paragraph 5 7 of Exhibit 4 is that in testing there was a trend 6 whereby lower circumference, higher density, less 7 porous cigarettes tended to not ignite the 8 substrate, correct? 9 A. Yeah. The small circumference, low density 10 rather than high density -- 11 Q. Okay. I'm sorry. 12 A. -- and low permeability, those in combination 13 in some substrates are less likely to ignite the 14 substrate. In other substrates, they're more 15 likely to ignite. 16 Q. That's what I was going to get into. You also 17 note in that document the concept of reversals? 18 A. Right. In that paragraph, yeah. 19 Q. And I understood that, from my reading, to 20 mean that a reversal is you see an opposite to the 21 trend. Is that what -- is that what the term 22 means? 23 A. Perhaps. It means -- to me it means an 24 opposite to what might be predicted. 25 Q. Okay, all right. And in the example I just MONICA WEIDMANN & ASSOCIATES (800) 969-2752 150 1 gave, or actually the example you gave in your 2 testimony in Exhibit 4 is, you predicted perhaps 3 that the density, circumference and permeability 4 that was manipulated in that test would show a 5 lower incidence of ignition, and which it did. And 6 in some instances, though, it showed a higher 7 ignition. And that reversed what you would have 8 expected or predicted to see? 9 A. Well, if you use the knowledge that came out 10 of the N.B.S. and this to make this prediction, you 11 would have predicted these cigarettes to be high 12 I.P.; however, they turned out to be lower I.P. in 13 another case. 14 Q. Was the research that you conducted, whether 15 it was the Tomorrow, CORESTA, the Joint Venture, 16 otherwise, aimed at disproving any of the findings 17 of the NIST? 18 A. That was not our aim. 19 Q. Was the aim to replicate what the NIST was 20 doing to find your own -- to arrive at your own 21 conclusions? 22 A. Our aim was to develop a test that had the 23 most relevance we could think of, we could design 24 into it. 25 Q. Going into the project, did you feel like that MONICA WEIDMANN & ASSOCIATES (800) 969-2752 151 1 there was room to design something other than the 2 perfect cigarette? 3 A. I'm not sure what you mean by that. 4 Q. As I understood the goal for Project Tomorrow, 5 it was to reduce -- design something that might 6 reduce fires caused from carelessly handled smoking 7 materials. 8 Did you understand or did you believe that 9 in undertaking that admirable goal that something 10 less than the perfect cigarette that might achieve 11 that goal was acceptable, or did you feel like your 12 job or your mission was to make the perfect 13 cigarette to accomplish that goal? 14 A. No, I don't believe in the perfect concept. I 15 think we have to make progress as we can make 16 progress. 17 Q. Okay. Can I see the exhibit again? 18 A. Sure. 19 Q. What do you believe to be, if there are any, 20 drawbacks to the conclusions reached by the folks 21 with the NIST and their testing and conclusions 22 they reached and reported to the Congress of the 23 United States of America? 24 A. I guess there are numerous. Are you speaking 25 about the test method itself? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 152 1 Q. I was thinking of test methodology and 2 conclusions with regard to the entire project. 3 A. Speaking of the test methodology for ignition, 4 to me, the major issue with that -- well, the major 5 issues with what NIST did were they did not 6 consider anything other than cotton duck fabrics. 7 Cotton duck fabrics are not upholstery 8 fabrics. They're not used in the upholstery fabric 9 industry. They're used for backpacks and tents, 10 and when the -- the Army was using it for truck 11 coverings, and the Army's not even using them 12 anymore. So, to me, they didn't have a 13 representative fabric. And I think that was the 14 biggest, perhaps, issue with it. 15 The other issues was they didn't consider 16 environmental factors in their test. I think some 17 environmental factors have to be considered; 18 because in a real-world situation, you do have air 19 flow. You have substantial air flow. And that can 20 cause a -- one cigarette designed to perform one 21 way with low air flow and another cigarette 22 designed to form another way with another air 23 flow. 24 I think in designing your cigarette, you 25 have to have -- you have to have the best cigarette MONICA WEIDMANN & ASSOCIATES (800) 969-2752 153 1 design that performed the best way in the widest 2 array of possibilities. 3 Q. Okay. Is there a current commercial cigarette 4 manufactured by Philip Morris that performs better 5 in the area of fire causation than any other Philip 6 Morris brand? 7 A. I don't know. I don't think so. 8 Q. Is there any commercial brand of cigarette 9 marketed in the United States by a domestic 10 cigarette manufacturer that you believe performs in 11 the area of reduced ignition propensity and fire 12 causation than the other commercial brands of 13 cigarettes manufactured and sold in the United 14 States? 15 MR. CRAMPTON: Real world. 16 Q. (By Mr. Grisham) Real world, sure. 17 A. No, sir, I don't think so. 18 Q. Do you think that all of the commercial 19 cigarettes that are on the market in the United 20 States today, in terms of fire causation and 21 ignition propensity, are just about the same? 22 A. Yes, sir, I believe that. And the original 23 document -- the original law or study came out at 24 N.B.S. at the time concluded that. There's 25 virtually no difference in the design that's on the MONICA WEIDMANN & ASSOCIATES (800) 969-2752 154 1 marketplace. I think that's true. 2 Q. But if I understand what you're saying, you do 3 disagree with the National Bureau of Standards in 4 their findings that a cigarette that is less likely 5 to ignite substrate is technologically feasible to 6 manufacture? 7 MR. CRAMPTON: I think you need to 8 define the substrate, unless you're talking about 9 all substrates. I don't know. 10 Q. (By Mr. Grisham) The substrate that the 11 National Bureau was testing. 12 MR. CRAMPTON: NIST? 13 A. Okay. We have N.B.S., National Bureau of 14 Standards, which changed their name from the first 15 study they did to the second study they did when it 16 was NIST. 17 Q. (By Mr. Grisham) Correct. 18 A. The conclusions that were drawn between those 19 were somewhat different. 20 Q. And they were about three years apart or 21 longer, weren't they? 22 A. Something of that nature, yeah. A little more 23 than that, but... 24 Q. Do you recall one of the findings being that a 25 cigarette was technically feasible that would MONICA WEIDMANN & ASSOCIATES (800) 969-2752 155 1 reduce ignition propensity? 2 A. They concluded it was technically feasible to 3 develop a cigarette. I think it's technically 4 feasible to do that. I think -- you know, I'm a 5 researcher and I believe, by golly, given enough 6 time and effort we can do it. 7 Q. You just don't think the industry is there 8 yet? 9 A. No, sir, I don't -- well, I don't know about 10 the industry. We're not there yet. 11 Q. Okay. When in the course of your research 12 concerning ignition propensity did you discover the 13 concept of reversals? 14 A. First time I was aware of reversals was in -- 15 as part of the so-called CORESTA 2 study in which 16 we were evaluating cigarettes "G" and "J." And 17 "G" -- I may get this wrong, but for the sake of 18 this, let's say "G" was more like a commercial 19 cigarette and "J" was more like a noncommercial 20 cigarette like the NIST design. And we started 21 evaluating those in our laboratory and we found 22 that the so-called low I.P. cigarette was giving us 23 more ignitions than the so-called high I.P. 24 cigarette. 25 I talked to the people in the laboratory and MONICA WEIDMANN & ASSOCIATES (800) 969-2752 156 1 they said -- I said, you know, somehow we got these 2 things mixed up. Something's wrong here. This is 3 not right. It turned out that all of the 4 laboratories involved in that test got the same 5 result. 6 Q. That is, a mixed result of effects? 7 A. It wasn't mixed. It was reversed. 8 Q. Did you as a scientist investigate how in the 9 world that happened? 10 A. First thing I thought was it was mixed up. We 11 had miscoded. And we made some measurements on the 12 cigarettes, which you can easily do with that kind 13 of density difference, and found out they weren't 14 mixed up. 15 Q. Did you as a researcher arrive at a conclusion 16 for why these reversals occurred? 17 A. Had no idea why it occurred at the time. 18 Q. Today do you have an idea of why they 19 occurred? 20 A. I've got a theory. 21 Q. What's your theory? 22 A. I'm not sure how many people support the 23 theory, but the theory is that it deals with the 24 oxygen deprivation around the coal and how much 25 oxygen a particular style cigarette's taking away MONICA WEIDMANN & ASSOCIATES (800) 969-2752 157 1 and increasing ignition temperature of the fabric. 2 Whereas another cigarette might--and it's very 3 fabric dependent--might not take so much oxygen 4 away from the coal and allow the fabric to ignite. 5 Q. You think it's an environmental factor 6 surrounding the cigarette and the fabric versus the 7 components of the cigarette or the components of 8 the fabric? 9 A. I think it's the combination of cigarette and 10 fabric properties. And as we said before, most 11 cigarettes either will or will not ignite the 12 fabric. Most fabrics are not ignitable. Those 13 that are ignitable, every design will do it. So 14 it's a small number that allows this 15 discrimination. 16 Q. Your theory is, then, it's the amount of 17 oxygen that's available to the coal? 18 A. Well, the same amount of oxygen because of the 19 environmental -- I mean, 21 percent oxygen is 20 available around the world, right, pretty much. 21 But it's the amount of oxygen that the coals take 22 consuming, the cigarette's consuming, one's 23 consuming more than another perhaps. 24 Q. Okay. What would alter the consumption of 25 oxygen, the available oxygen to the coal? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 158 1 A. Again, it's an interaction, perhaps, with a 2 fabric and the environment the fabric's in. It's a 3 very -- some very complex physics. I don't 4 understand it all. 5 Q. For instance -- 6 A. That's an untried -- well, it's not untried 7 completely, but it's an untested theory that I 8 have. 9 Q. In simplistic terms, does a cigarette lying in 10 a crevice, in effect, does it have less oxygen 11 available to it? 12 A. I'm not sure. This is much more microscopic 13 than, say, a crevice or a non-crevice situation, so 14 I don't know the answer to that question. 15 Q. But if a cigarette will self-extinguish in 16 terms of fire causation, that doesn't even matter, 17 correct? 18 A. If it's out, it's out, right. 19 Q. Are there other theories that you have heard 20 espoused by other scientists as to why the 21 reversals may have occurred? 22 A. Yes. 23 Q. What are some of the other theories, or all 24 the theories that you can recall? 25 A. Only one I recall dealt with the linear burn MONICA WEIDMANN & ASSOCIATES (800) 969-2752 159 1 rate of the cigarette and the linear burn rate of 2 the fabric and some matching of that. 3 That phenomenon may be true. I don't know 4 the answer to the question whether it was which... 5 Q. And as I understand it, someone may have 6 theorized that if the ignition and burn rate of the 7 fabric somehow matches that of the cigarette, that 8 could cause the ignition of substrate? 9 A. Right. Whereas if it's burning faster than 10 that, it might not ignite, even though it had a 11 higher so-called I.P. 12 Q. Page 5 of Exhibit No. 4, I'll be happy to hand 13 this to you, if you need to see it. You talk in 14 paragraph 8 about -- following your discussion of 15 the phenomenon of reversal, you say that testing by 16 the CORESTA task force and the cigarette ignition 17 propensity Joint Venture and confirmed by 18 independent researchers has shown that certain 19 design changes that have an improved performance in 20 one test using substrate will have more ignitions 21 in another, and you go on. 22 What was the independent research that 23 confirmed this finding? 24 MR. CRAMPTON: Did you purport to quote 25 from that as you were reading that -- MONICA WEIDMANN & ASSOCIATES (800) 969-2752 160 1 MR. GRISHAM: Did I purport to quote? 2 MR. CRAMPTON: -- because that didn't 3 sound like a quote from that document to me. 4 Because you said "using substrate" which is a 5 peculiar term to you that I've never heard before, 6 and I would be surprised if it were in Dr. Whidby's 7 document. 8 MR. GRISHAM: Using substrate? 9 MR. CRAMPTON: Using a substrate, the 10 substrate? 11 MR. GRISHAM: Using one substrate? 12 MR. CRAMPTON: Whatever it says there. 13 It sounded to me like you were quoting as you read 14 along, and then I heard some terms that I don't 15 think are in that document. And it made me think 16 that maybe you were using your own words. 17 MR. GRISHAM: Let me go back and read 18 it because you caught me. 19 Q. (By Mr. Grisham) Quote, testing by the 20 CORESTA task force and the cigarette ignition 21 propensity Joint Venture and confirmed by 22 independent researchers have shown that certain 23 design changes that have an improved performance in 24 one test using one substrate will have more 25 ignitions on another test using either another MONICA WEIDMANN & ASSOCIATES (800) 969-2752 161 1 substrate or tested under different environmental 2 conditions, closed quote. 3 What other independent researchers confirmed 4 those findings? 5 A. Let me see the -- now I'm really confused. 6 Independent researchers that I think are referred 7 here -- referred to here is Factory Mutual -- 8 Factory Mutual Group. 9 Q. I'm sorry? 10 A. Factory Mutual. 11 Q. Who are they? 12 A. It's a laboratory in Boston, Connecticut. 13 Q. Who were they doing independent research on 14 behalf of? 15 A. The Joint Venture. 16 Q. Who funded the independent research? 17 A. The tobacco industry. 18 Q. Through what mechanism, the Tobacco Institute 19 or the CORESTA? 20 A. We funded -- the tobacco industry funded the 21 Joint Venture directly. 22 Q. Okay. What research did that group do to 23 confirm the findings that you state in your 24 affidavit? 25 A. They repeated the results that American MONICA WEIDMANN & ASSOCIATES (800) 969-2752 162 1 Tobacco had gotten on testing commercial fabrics. 2 Q. And the opinions you were giving in Exhibit 4 3 in the form of an affidavit were opinions that were 4 based in part upon a research you had conducted at 5 Philip Morris, but also in part upon a research 6 that other tobacco companies had conducted and 7 reported as a part of the CORESTA or Joint Venture 8 projects, correct? 9 A. I'm sorry to make you repeat that, but... 10 Q. That's okay. The opinions that you state in 11 Exhibit 4, such as the one you just mentioned in 12 paragraph 8, I assume were opinions that you -- 13 that you arrived at and conclusions that you made 14 based upon research that you conducted at Philip 15 Morris, but also research that came about through 16 CORESTA and the task force? 17 A. Yes, sir. 18 Q. And that research may have come in whole or in 19 part from other tobacco companies participating in 20 the projects? 21 A. Participating in the Joint Venture? 22 Q. Yes. 23 A. Yes. 24 Q. Can I see that exhibit? 25 A. (Witness complies). MONICA WEIDMANN & ASSOCIATES (800) 969-2752 163 1 Q. Thank you. Do you know why the NIST chose 2 cotton duck as a material to use in testing that 3 was mandated by the cigarette -- Fire-Safe 4 Cigarette Act of 1990? 5 A. No. 6 Q. On page 8, paragraph 18 of Exhibit 4 there's a 7 table of -- containing the names of cigarette 8 brands along with the packing density, 9 circumference and permeability is measured in 10 CORESTA units of the particular cigarettes, and 11 there's some discussion in your affidavit about the 12 findings. Where did the information for the table 13 come from? 14 A. Which information? 15 Q. Packing density, circumference and 16 permeability. 17 A. We measured those. 18 Q. "We" being? 19 A. Philip Morris. 20 Q. Under what circumstances were these 21 measurements made, part of the Tomorrow Program? 22 A. I don't think so. 23 Q. Okay. Under what circumstances were they 24 made? 25 A. We routinely measure parameters of our MONICA WEIDMANN & ASSOCIATES (800) 969-2752 164 1 competitors' products. 2 Q. Through the use of these measurements, either 3 on your competitors' brands or on your own brands, 4 can you make predictions about ignition propensity? 5 A. No, sir, I don't believe so. 6 Q. Has Philip Morris developed computer modeling 7 -- let me rephrase that. Has computer modeling of 8 ignition propensity been developed by anyone to the 9 extent that it could be used as a predictor of 10 ignition propensity in the real world, in your 11 opinion? 12 A. No, sir. 13 Q. Why not? 14 A. I don't think -- I don't think the real world 15 is known well enough in order to have that model. 16 Q. Okay. And as I understand, what I believe 17 you're saying is, that there is so many different 18 environmental factors involved in the world that 19 you can't predict every place a cigarette's going 20 to fall and under what environmental circumstances 21 it's going to lie in, correct? 22 A. Be very difficult to do that. 23 Q. Are we talking about the same thing? In other 24 words, I understand you to say there's so many 25 different materials out there a cigarette might lie MONICA WEIDMANN & ASSOCIATES (800) 969-2752 165 1 on in the world that you can't replicate all those 2 in a laboratory, correct? 3 A. I think that's true, yes. 4 Q. Being a scientist, though, you'll agree that 5 there are certain physical properties and physical 6 rules and laws of nature that don't vary, correct? 7 A. Yes. 8 Q. Do you, as a researcher at Philip Morris, rely 9 upon the use of computer software and modeling to 10 assist you in your research? 11 A. Yes. 12 Q. How can it assist you? What does it provide 13 for you? 14 A. Guidance. 15 Q. How so? 16 A. General -- gives you direction in which to 17 go. Rather than marching down all paths at once, 18 you can march down, hopefully, the most preferred 19 path. 20 Q. If I were fortunate enough to have the models 21 available to me that you have in the research 22 laboratory available and I wanted to model a 23 circumstance whereby a cigarette smoldered in a 24 car--like in our case--and wanted to see if it 25 could, in fact, ignite the contents of an MONICA WEIDMANN & ASSOCIATES (800) 969-2752 166 1 automobile, is that something that is available 2 that you could do in your laboratory or on your 3 your computer? 4 A. No, sir, I don't think so. 5 Q. Why not? 6 A. I don't know what -- I don't know any of the 7 parameters in a car. 8 Q. I'm assuming that you were provided that 9 information. Like here's the type substrate, 10 here's the type covering and here's the 11 temperature, and a rough estimation of the humidity 12 and draft and whatever parameters you wanted to 13 estimate, would you be able to model that 14 environment to predict an outcome? 15 A. From a particular cigarette design? 16 Q. Yes. 17 A. No, I don't think so. I think I'd have to 18 have some data, some real data on real environments 19 within a car, on real fabrics that were contained 20 within the car in order to develop a model that 21 might allow me to predict future configurations 22 within a car. I don't have any of that data. 23 Q. Assuming I were able to give you -- 24 A. I'm sorry, these models are not based on first 25 principals. They're based on real data that's MONICA WEIDMANN & ASSOCIATES (800) 969-2752 167 1 collected on real situations, or real laboratory 2 situations, and then use those to predict other 3 areas. 4 Q. Okay. If you and I were to collaborate on 5 trying to create a model that would replicate what 6 might happen in a car with a cigarette lying on the 7 seat and you are to tell me, here's a list of 8 things I'm going to have to have to try to model 9 that, what would that list be? 10 A. I think I'd want to sit down for a while and 11 think about what that list would be, rather than in 12 two seconds or come off the top of my head. 13 Q. I understand. 14 A. But obviously -- I mean, knowing what I know 15 about upholstery fabrics and using that knowledge 16 to talk about some other area, I'd want to know 17 what the substrate is; I'd want to know what the 18 air flow is; what the temperature is; the ignition 19 properties of the substrate -- I said air flow 20 already. 21 There's a whole host of things I'd like to 22 know and like to investigate some reason -- region 23 around those parameters to start establishing some 24 fundamental physics about these materials. 25 I mean, you could tell me some things that MONICA WEIDMANN & ASSOCIATES (800) 969-2752 168 1 -- well, we'd just have to sit down and work it 2 out. But I don't think it's something you and I 3 can do right here. 4 Q. Okay. The point being, do you have a -- do 5 you have models available to you to do something 6 like that, if you could get the information you 7 needed? 8 A. No, not -- no. Do I have them available to 9 me, no. 10 Q. I don't mean right here. I'm talking about at 11 your laboratory? 12 A. No. They'd have to be developed. 13 Q. In other words, you'd have to create the model 14 to test what I was talking about? 15 A. Yes, yes. Create the model to test the 16 physics to test the hypotheses that we would come 17 up with. 18 Q. Okay. Would -- in order to try to do that, 19 would you be able to rely upon laboratory findings 20 in other settings to try to draw upon to create 21 that model? 22 A. Like I said earlier, you know, using my 23 knowledge about upholstery fabrics, we'll start 24 from there, right. 25 Q. Okay. That's the first thing that comes to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 169 1 mind to me. You might want to find out what the 2 foam was in the car and see if you had ever tested 3 that foam before. Is that an accurate example of 4 one -- 5 A. Whether or not I had tested it before might 6 have some relevance. I'm not sure that it would or 7 would not. What's the density of the foam? Foam 8 properties, you know, we've looked at the physics 9 of the foam. What's the properties of that foam? 10 Q. And I was assuming if you tested it before, 11 you might have some laboratory data about the 12 properties? 13 A. The problem, though, is that we -- this is a 14 -- you can't test one thing to make a prediction 15 about a full mock-up. You have to have it 16 altogether. 17 Q. In Exhibit 5, your affidavit also in the 18 Kearney case, you mentioned that you're employed as 19 a technology fellow for the Philip Morris, 20 Incorporated, Research Center. What is a 21 technology fellow? 22 A. We -- within R&D we have two ladders -- two 23 ladders, management ladder and technical ladder. 24 The fellow is -- that's the top of the ladder. 25 Q. On the technology side? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 170 1 A. Yes. 2 Q. Do you recall giving your deposition in the 3 Kearney case? 4 A. Yes. 5 MR. CRAMPTON: Wait a minute, 6 deposition? 7 A. I'm sorry, deposition? 8 Q. (By Mr. Grisham) Yes. 9 A. I did not give a deposition, I'm sorry. 10 Q. Okay, fair enough. Maybe you just didn't know 11 about it, Bill. 12 A. No, I don't recall. The witness is getting 13 tired. 14 Q. Would you like to take a break? 15 A. No, that's okay. We'll continue. 16 Q. You mention also in Exhibit No. 6, also an 17 affidavit submitted in the Kearney case, that you 18 and Dr. Hirschler had attended an A.S.T.M. meeting 19 in June of 1995 in which a study was discussed 20 concerning a topic in the Journal of Fire Sciences, 21 the effects of upholstery of fabric properties on 22 ignitability by smoldering cigarettes; do you 23 recall that? 24 A. Yes, sir. 25 Q. Did Dr. Hirschler speak at that meeting, or MONICA WEIDMANN & ASSOCIATES (800) 969-2752 171 1 were you both attending as members of the audience? 2 A. June '95, as I recall, we both spoke at that 3 meeting. 4 Q. Did you and he both spoke on the issues of 5 fabric ignition and cigarettes? 6 A. I don't recall what Dr. Hirschler said. I 7 think he was a chair of the group. 8 Q. Who is Dr. Hirschler? 9 A. He is a member of a consulting laboratory in 10 some location in California. I don't know the 11 exact location. 12 Q. Is he a member of the Editorial Advisory Board 13 of the Journal of Fire Sciences, to your knowledge? 14 A. I believe he is. 15 Q. Did -- is there a particular formula that 16 Dr. Hirschler developed that deals with prediction 17 of ignitions called the Hirschler Formula? 18 A. I believe that's what it says in the 19 affidavit, yes. 20 Q. How are you familiar with that formula? 21 A. As I recall I saw it in Dr. Hirschler's 22 affidavit. 23 Q. Before you first saw it in Dr. Hirschler's 24 affidavit, had you been familiar with the formula? 25 A. No, sir. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 172 1 Q. Do you know Dr. Krasny? 2 A. Yes, sir. 3 Q. How do you know him? 4 A. I'm sorry, it's Mr. Krasny. 5 Q. Mr. Krasny. I'm sorry. 6 A. Through interactions with NIST. 7 Q. Do you know Dick Gann? 8 A. Yes, sir, I do. 9 Q. How do you know Dick Gann? 10 A. Dr. Gann. 11 Q. Dr. Gann. I'm batting a thousand here, aren't 12 I? 13 A. Through interactions at NIST. 14 Q. Have you served on any committees at the NIST 15 with regard to these studies? 16 A. Yes. Well, it was with the Tobacco Advisory 17 -- or Technical Advisory Group. 18 Q. Did you serve as a member of the Technical 19 Advisory Group on behalf of Philip Morris? 20 A. Yes, I did. 21 Q. I understand -- 22 A. I'm sorry, as part of the Tobacco Institute. 23 Q. Have you ever held a position with the Tobacco 24 Institute? 25 A. No, sir. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 173 1 Q. As a part of the advisory group, did you serve 2 by providing research and input on ideas, and 3 things of that nature, on the issue of reduced 4 ignition propensity, feasibility in cigarettes? 5 A. Yes. 6 Q. Did the -- did you participate on behalf of 7 the industry through invitation, or was that how 8 the committee was -- the advisory committee was 9 formulated, there would be so many members of 10 industry and so many from consumer -- 11 A. As I recall, it was formulated that way. 12 Q. Up and between 1987 and 1982 (sic), did Philip 13 Morris U.S.A. conduct -- continue to conduct a 14 mock-up burn test as part of the project 15 investigating reduced ignition propensity 16 cigarettes? 17 A. What were those dates again? 18 Q. '87, around the time when Tomorrow began, 19 through '92. 20 A. We did mock-up testing with CORESTA and with 21 the Joint Venture and with the T.A.G. 22 Q. No in-house mock-up testing was done? 23 A. Oh, it was done in-house, but primary effort 24 was with trying to push forward the development of 25 test methods with those three groups. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 174 1 Q. With respect to Exhibit 6, your affidavit, I 2 want you to look at it and review in more detail 3 paragraph 15. 4 A. Okay. 5 Q. Dr. Whidby, with respect to paragraph 15, I'm 6 certainly going to attempt to avoid rehashing 7 testimony we've already gone through concerning 8 time to ignition as a measure of ignition 9 propensity. 10 Regardless, in paragraph 15 I believe you 11 opined that even though Philip Morris U.S.A. 12 conducted tests through the 1980's with -- on 13 ignition propensity by studying the time to 14 ignition, that those tests were not and were not 15 intended to be accurate predictors of ignition 16 propensity. Is that what you're saying in your 17 affidavit? 18 A. The intent of those tests -- what I'm saying 19 is they were not accurate predictors of the real 20 world upholstery furniture. I don't know what the 21 intent was. 22 Q. Okay. Why are they not real -- why were the 23 tests that Philip Morris ran in the 1980's not real 24 world predictors of ignition propensity? 25 A. I don't know why the physics between the two MONICA WEIDMANN & ASSOCIATES (800) 969-2752 175 1 doesn't hold. 2 Q. I'm sorry? 3 A. I don't know exactly why the physics between 4 the two tests didn't hold. I mean, the real world 5 situation has a variety of fabrics. This test here 6 also relied upon a small number of fabrics. 7 Q. Okay. I want to hand you what's been marked 8 as Exhibit No. 7 and ask you if you can identify 9 this document? 10 A. Yes. 11 Q. What is that document? 12 A. It's a memorandum. 13 Q. Have you ever seen it before today? 14 A. I believe I have. 15 Q. Under what circumstances? 16 A. I was a recipient of the memo. 17 Q. About when did you receive the memo? 18 A. I don't recall exactly. 19 Q. Is that -- was that memo received by you 20 during the course of your employment with Philip 21 Morris U.S.A.? 22 A. Yes, sir. 23 Q. And was -- is it customary for you to be the 24 recipient or c.c.'d, if you will, on memos of that 25 type? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 176 1 A. Yes, sir, it is. 2 Q. And that particular one you received as a part 3 of your work on ignition propensity studies, 4 correct? 5 A. Yes, sir. 6 Q. Who authored the memo? 7 A. Dr. Bill Dwyer is what it says here. 8 Q. And what's the date of the memo? 9 A. The memo was dated August 10, 1992. 10 Q. What position did Dr. -- is it Dr. Dwyer? 11 A. Yes, sir. 12 Q. What position did Dr. Dwyer hold at that time? 13 A. As I recall, perhaps imperfectly, I think he 14 was a project leader. 15 Q. And who was he directing the memo to? 16 A. To me. 17 Q. Can I see it again? 18 A. Certainly. 19 Q. Does the memo set forth the projected 1993 20 operational plan for Project Tomorrow? 21 A. That is the title of the memo, yes. 22 Q. Did Mr. Dwyer -- Dr. Dwyer set forth in this 23 memo what he believed to be the goal of Project 24 Tomorrow? 25 A. I don't know what he believed. He has a MONICA WEIDMANN & ASSOCIATES (800) 969-2752 177 1 program goal here. 2 Q. Did he accurately state the program goal of 3 Philip Morris in this memo? 4 A. In general terms. 5 Q. Was a portion of the program goal, as outlined 6 in that memo, to determine not only the technical, 7 but also the commercial feasibility of 8 manufacturing reduced ignition propensity 9 cigarettes? 10 A. Yes, sir. 11 Q. In this memo Dr. Dwyer talks about the concept 12 of burn promoters in fabrics. Do you note that as 13 well? 14 A. Would you direct me to it, please, sir. 15 Q. Bottom of page 1. 16 A. Yes, sir, that's what he says. 17 Q. What do you understand to be burn promoters? 18 A. Salts, such as potassium or sodium salts. 19 Q. The same microscopic components in fabric that 20 you and I earlier talked about in terms of being 21 hot spots -- or I think I described it as hot 22 spots? 23 A. You described them as hot spots. I'm not sure 24 that's perfectly true. But without these salts, 25 which occur naturally in cotton fabrics or in MONICA WEIDMANN & ASSOCIATES (800) 969-2752 178 1 cotton, fabrics won't ignite. 2 Q. One of the conclusions that Dr. Dwyer states 3 in the memo on page 1, last sentence, is that 4 our--and I assume he's referring to Philip 5 Morris--research has shown and it is confirmed by 6 literature that cotton fabrics without high levels 7 of burn promoters are not susceptible to ignition 8 by smoldering cigarettes, which I think is the same 9 thing you just told me. That without these burn 10 promoters, these salts, cotton fabrics won't 11 ignite; is that correct? 12 A. That's our -- that's our -- our data supports 13 that, yes, from my understanding; and we have data 14 that supports that. 15 Q. Are there burn promoters in other type of 16 fabrics other than cotton fabrics? 17 A. There are salts in other cellulosic fabrics. 18 There's salts in other fabrics. Whether they act 19 as burn promoters, so to speak, in non-cellulosic 20 fabrics are not, I don't think so. 21 We -- our data says that for a fabric to be 22 ignitable by a cigarette, it must be predominately 23 a cellulosic-based fabric, rayon or cotton. 24 Q. As opposed to a synthetic? 25 A. Yes, sir. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 179 1 Q. Is there any data that gives you a conclusion 2 or leads you to a conclusion as to what percent of 3 rayon or cotton must be present in the fabric for 4 it to be an ignitable fabric? 5 A. We have such data. 6 Q. What does it tell you? 7 A. It's got to be a high percentage. I don't 8 recall the number. 9 Q. Appreciating that you can't remember 10 everything sitting here in this chair today, is 11 there a place that you could go or that one could 12 go to find out what that data shows? 13 A. Yes, sir, there is. 14 Q. And without forcing you to an answer you don't 15 want to make, can you give me an idea? Is it like 16 90 percent, or is it closer to 60/40? 17 A. It greatly depends upon the fabric design. 18 But I don't believe we've seen anything ignite 19 below about--don't hold me to this number 20 exactly--the 60 percent level. 21 Q. Of either rayon or cotton? 22 A. Yes. Again, I'm not sure that's the exact 23 number. 24 Q. On page 2 of the memo, paragraph 3, Dr. Dwyer 25 continues his discussion of the topics contained in MONICA WEIDMANN & ASSOCIATES (800) 969-2752 180 1 the memo. And he says, the fourth CORESTA 2 collaborative study has been planned. 3 To your knowledge, how many CORESTA 4 collaborative studies and issues of ignition 5 propensity have been conducted through today? 6 A. I don't recall. 7 Q. In paragraph 4 of the memo, Mr. Dwyer talks 8 about work ongoing with the paper technology group 9 in developing banded wrappers. Do you see that? 10 A. Yes, sir. 11 Q. Was the project that he is discussing in this 12 exhibit the same banded wrapper project that you 13 said is ongoing today? 14 A. An evolution of this. 15 Q. If you don't recall having heard of a Delta 3 16 project -- you and I talked extensively about Delta 17 1 and 2. Do you recall a Delta 3? 18 A. No, sir. 19 Q. Continuing on to page 2 and 3 of the memo 20 between the two, he -- Dr. Dwyer is discussing 21 certain tests in the last paragraph on page 2, 22 Bates No. 956 being the last three numbers. And he 23 discusses low density leaf blends and DIET and NET 24 technologies--those being in all caps, DIET in all 25 caps and NET in all caps. What are those MONICA WEIDMANN & ASSOCIATES (800) 969-2752 181 1 technologies? 2 A. Both of them are expansion -- tobacco 3 expansion technologies. 4 Q. To put it in country boy terms that I could 5 understand, is that technologies to be able to make 6 the tobacco more dense within the rod of the 7 cigarette? 8 A. No, sir. 9 Q. What is it? 10 A. It's to make it less dense. 11 Q. Make it less dense in hopes that it will burn 12 more faster or slower? 13 A. As I said earlier, the density of the 14 cigarette does not have an effect on mass burn 15 rate--minimal, if any, effect on mass burn rate. 16 Q. Back to the time this was written, was that 17 the issue that was being bantered about, whether or 18 not the mass burn rate was dependent upon the 19 density? 20 A. There may have been some people thinking that 21 mass burn rate was dependent upon density. Neither 22 Dr. Dwyer nor I believed it was. 23 Q. What does DIET and NET stand for? Are they 24 acronyms for -- for project -- or for design types? 25 A. DIET stands -- wrongfully stands for Dry Ice MONICA WEIDMANN & ASSOCIATES (800) 969-2752 182 1 Expanded Tobacco. N-E-T stands for New Expanded 2 Tobacco. 3 Q. Going on to the last page of Dr. Dwyer's memo 4 -- excuse me, not the last page, but it's the -- I 5 believe it to be the third page under Strategies. 6 I'd like for you to take a moment to look at the 7 strategy section on that page. It's Bates No. 957 8 being the last three digits. And after you've 9 looked at them, I want to ask you a question about 10 them. 11 A. Okay. 12 Q. Have any of the strategies been fleshed out to 13 their final conclusion? 14 A. What do you mean by "fleshed out"? 15 Q. Have they been pursued to their final 16 conclusion? 17 A. I don't think so. 18 Q. Have -- none of them have? They're all still 19 ongoing strategies? 20 A. No, they're not all still ongoing strategies. 21 Q. Okay. Which ones were taken to their 22 conclusion? 23 A. None of them were taken to their conclusion. 24 Q. In the course of working on Project Tomorrow, 25 has the project or any of its teams or team members MONICA WEIDMANN & ASSOCIATES (800) 969-2752 183 1 prepared annual, monthly, quarterly, semiannual 2 reports? 3 A. Yes. 4 Q. Which of the above have been prepared? 5 A. Go through it again, please. 6 Q. Are annual reports prepared? 7 A. Sometimes, yes. 8 Q. Some years, huh? From 1987 up through the 9 present, for most years have annual reports -- 10 A. I think -- I think for most years, yes. 11 Q. How about monthly reports? 12 A. Most of the time we -- no. We have not done 13 monthly reports. 14 Q. Sometimes there may be? 15 A. Yes. 16 Q. Are there quarterly or annual reports? 17 A. Most of the time there are annual reports. 18 Q. Just annual, not semiannual or quarterly? 19 A. Right, right. 20 Q. And on occasion are there special reports that 21 are emanated? 22 A. Yes. 23 Q. Did you ever have any discussion with 24 Dr. Merritt concerning his ideas on the feasibility 25 of self-extinguishing cigarettes? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 184 1 A. Not that I recall. It's Mr. Merritt. 2 Q. Okay. I'm still batting a thousand. Henry 3 Merritt, correct? 4 A. Yes, sir. 5 Q. Are you familiar with the Reduced Density Rod 6 Program? 7 A. Not with those terms, I don't think. I'm not 8 sure. 9 Q. Are you familiar with any program called Rod 10 Density Program, any specific program dealing 11 with -- 12 A. That's such a generic term. 13 Q. I've just seen it appear in some documents. 14 That's why I asked. 15 A. I don't recall a program being such. I really 16 don't, but could have been. 17 Q. Have any of the studies that you undertook 18 through CORESTA or Tomorrow or the Joint Venture 19 dealt with the issue of or the study of sodium 20 potassium citrate as a treatment of paper in terms 21 of producing a cigarette that would be -- would 22 have a reduced ignition propensity? 23 A. No, sir. 24 Q. Generally speaking, does citrate cause the 25 paper to burn faster? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 185 1 A. Depends on the level of -- it's citrate. 2 Q. Does it make it burn faster, slower? 3 A. Again, it depends on the level of citrate. No 4 citrate is slower, and up to a certain level it's 5 faster, and then it levels off. And being a 6 scientist, again, all citrate is not a paper. 7 Q. Have you ever applied for any patent 8 personally? 9 A. Yes. 10 Q. Are any of those applications pending? 11 A. I think so. 12 Q. The one we talked about earlier that's 13 proprietary is pending? 14 A. I'm not sure I'm on that one. 15 Q. Okay. What I'd like to ask you about is what 16 patents, I guess, have you been granted? 17 A. I really don't recall. 18 Q. Have you been granted any patent dealing with 19 any processes or designs of reduced ignition 20 propensity cigarettes? 21 A. Not to my knowledge. 22 Q. Do you know Barbro Goodman? 23 A. Yes, sir, I do. 24 Q. How do you know Ms. Goodman? 25 A. She's an employee at Philip Morris. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 186 1 Q. Does she work on any projects that you're 2 involved in today? 3 A. Yes, sir, she does. 4 Q. What does she work on that you're involved in? 5 A. She's in the paper group. That's my 6 understanding she's in the paper group. 7 Q. Is her group conducting any research in 8 respect to Project Tomorrow? 9 A. The paper group is working with us on the 10 banded paper program. 11 Q. On the what? 12 A. Banded paper project program, part of Project 13 Tomorrow. 14 MR. GRISHAM: I'll pass the witness. 15 MR. MARKEY: I'll be brief. 16 MR. CRAMPTON: Do you need a -- I don't 17 know how long you're going to go. Do you need a 18 break? You mentioned being tired. 19 THE WITNESS: Yeah. If we're going to 20 go a real long time, I'd like a break. 21 MR. MARKEY: Five, ten minutes. 22 THE WITNESS: Okay. Let's do it and 23 I'll break for a long time. 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 187 1 EXAMINATION 2 BY MR. MARKEY: 3 Q. Doctor, you mentioned you got your Ph.D. from 4 the University of Georgia, I believe? 5 A. Yes, sir. 6 Q. Where did you get your Master's? 7 A. I didn't get a Master's. 8 Q. Oh, really. You just went straight from 9 Bachelor's to Ph.D.? 10 A. Yes, sir. 11 Q. Are you a member of CORESTA, or is the company 12 a member of CORESTA? 13 A. I had a difficult time answering that 14 question. I think I'm a member of CORESTA. 15 Q. If you -- in any event, your the designated 16 representative of Philip Morris -- 17 A. Yes, sir; yes, sir. From that respect I think 18 I am. 19 MR. CRAMPTON: I'm sorry, that question 20 didn't get finished. A designated representative 21 of Philip Morris to what? 22 MR. MARKEY: To CORESTA. 23 A. Yes. 24 Q. (By Mr. Markey) I believe you testified--and 25 I don't mean to be redundant, but this will get to MONICA WEIDMANN & ASSOCIATES (800) 969-2752 188 1 the point--you took over Project Tomorrow around 2 1987? 3 A. Yes, sir. 4 Q. What were you doing for Philip Morris 5 immediately before that, say, in the early '80s? 6 What was your job description? 7 A. I was a manager of another division before 8 1987. 9 Q. Could you explain? 10 A. Yes. The biomaterials science division. 11 Q. What were you doing in that division? 12 A. I was the manager of the division which was 13 involved in a number of areas of research, 14 including -- let's see, try to remember, we had 15 microscopy. I had a group that dealt with the 16 physical properties of tobacco, the strength of 17 tobacco, how to make it stronger. 18 Q. Sounds like that was all under research? 19 A. Yes, sir, under research. 20 Q. You've been in research ever since you joined 21 Philip Morris; is that correct? 22 A. Yes. 23 Q. More or less? 24 A. Yes. 25 Q. When you joined -- excuse me, when you began MONICA WEIDMANN & ASSOCIATES (800) 969-2752 189 1 work on Project Tomorrow, you testified all about 2 that, you knew what the goal of that was. You also 3 testified you did not know what the goal of Project 4 Hamlet was, correct? 5 A. Correct. 6 Q. No one ever explained what the goal of Project 7 Hamlet was to you? 8 A. I don't recall reading a goal. 9 Q. Okay. Regarding Project Tomorrow, I want to 10 ask you about three or four questions and that's 11 all. 12 Did Project Tomorrow make any 13 recommendations of any kind regarding the 14 manufacture of cigarettes by Philip Morris which 15 were implemented as a result of Project Tomorrow? 16 A. Not that I can recall. 17 Q. Did you personally -- have you personally made 18 any recommendations regarding the manufacture of 19 cigarettes by Philip Morris as a result of the 20 research you've done on -- with Project Tomorrow? 21 A. Not that I can recall. 22 Q. Do you know of any changes that have been made 23 in the manufacture of cigarettes by Philip Morris 24 as a result of Project Tomorrow? 25 A. No, not that I know of. Not that I'm aware MONICA WEIDMANN & ASSOCIATES (800) 969-2752 190 1 of. 2 Q. If you can answer this question, since 1980 -- 3 well, I don't recall -- do you know when the 4 Marlboro 100's were first introduced to the market? 5 A. Not that I can recall. 6 Q. Well, since 1987 since you were involved in 7 Project Tomorrow, if we assume a Marlboro 100 was 8 being manufactured in 1987--if not, whatever year 9 it began manufacture--from that day forward until 10 today, has the manufacture of a Marlboro 100 11 changed in any way to your knowledge? 12 A. Not to my knowledge. 13 Q. I believe yesterday in either a document or 14 Ms. Goodman testified that the coal temperature of 15 a cigarette was 600 degrees. Assuming she said 16 that, would that be centigrade or Fahrenheit? 17 A. Be centigrade. 18 Q. 600 degrees centigrade? 19 A. Is that right? I think that's right. 20 MR. GRISHAM: Isn't that like a billion 21 degrees Fahrenheit? 22 MR. MARKEY: How hot's the sun? 23 Q. (By Mr. Markey) Does Project Tomorrow have or 24 have had -- has Project Tomorrow had any physicists 25 working with you? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 191 1 A. Yes. 2 Q. Who would that be? Who would they be? 3 A. Formally trained physicists, I suppose you're 4 asking, right? Formally trained physicists? 5 Q. Yes, sir. 6 A. Dr. Cliff Lilly is one. Mr. Harry 7 Lanzillotti's another. I can't recall everybody's 8 degree right off the top of my head, but yes. 9 Q. Just for the sake of perspective -- 10 A. Most people have training. Dr. Bill Dwyer is 11 a physical chemist, as am I--physical analytical 12 chemist--so we speak to each other very closely. 13 Q. And you testified that over the years of 14 Project Tomorrow you've had between 14 and -- a low 15 of 14 or 15 and a high of 55 to 60? 16 A. That's my best guess. 17 Q. Can you give us an idea of how many -- over 18 the years, how many physicists, how many chemists, 19 how many technicians, how many worker bees there 20 have been? Is there any way to talk about that or 21 different -- I guess that -- 22 MR. CRAMPTON: I object to the 23 suggestion worker bees unless, of course, the 24 answer is zero. 25 MR. MARKEY: Well, I mean -- MONICA WEIDMANN & ASSOCIATES (800) 969-2752 192 1 MR. CRAMPTON: I understand, 2 technicians. 3 MR. GRISHAM: That's another word for 4 them. 5 Q. (By Mr. Markey) Technicians? 6 A. I would have a riot on my hands when we got 7 back, but... Not off the top of my head. But I 8 can get some of that data, maybe not fully. 9 Q. Is there generally two or three scientists, 10 I'll call you, and two or three technicians; or is 11 there some kind of a mix? 12 A. In general, this program has involved more 13 scientists than it has lower level technicians 14 because it's a very complex program. And although 15 we use a number of technicians for testing, it's 16 been a pretty high-level program. 17 Q. So generally, most -- would you agree or 18 disagree that most of the time it's the scientists 19 sitting around discussing methodologies and things 20 like that, and then having the technicians build 21 protocols which are tested? 22 A. Scientists do more than sit around and 23 discuss. 24 Q. Well, I'm not meaning to downgrade what you 25 do, but theorize? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 193 1 A. Well, we develop -- well, we're in the lab 2 too, right. Sometimes you got to be there hands-on 3 in order to see what's going on. 4 Q. So, I mean -- and you were there, that's what 5 you do, right? 6 A. Yes, to some extent. 7 MR. MARKEY: Okay. I pass the 8 witness. Thank you, sir. 9 MR. GRISHAM: I have a couple of more 10 follow-ups on some documents. 11 (Whidby Exhibit No. 8 was 12 marked for identification.) 13 THE WITNESS: If I've got to read all 14 that, I'm going to take a break. 15 MR. GRISHAM: Yeah, they're thick. I 16 don't know whether you're going to have to or not. 17 THE WITNESS: Maybe I better take a 18 break. Is that all right? 19 MR. GRISHAM: Okay. You bet. 20 (Brief recess.) 21 (Whidby Exhibit No. 9 was 22 marked for identification.) 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 194 1 FURTHER EXAMINATION 2 BY MR. GRISHAM: 3 Q. Dr. Whidby, I want to hand you what's been 4 marked as Exhibit 8, and ask you if you recall ever 5 having seen that document? 6 A. Specifically, I don't recall this document. 7 Q. You don't recall ever having seen it? 8 A. I don't recall having seen it, no, I don't. 9 Q. Do you recall ever having seen a five-year 10 plan before? 11 A. Yes, I've seen five-year plans before. 12 Q. Is there some reason that you would not have 13 necessarily seen this one because of its date or 14 your position at the time of its date or anything 15 of that nature? 16 A. I don't always have access or -- excuse me, I 17 don't always have my copy of the five-year plan 18 from Philip Morris U.S.A. This is not a -- to my 19 -- I don't think it's an R&D five-year plan. 20 Q. What department do you believe -- 21 A. But it's possible I could have seen it. 22 Q. Okay. Do you agree that back in 1988 Philip 23 Morris viewed the fire-safe cigarette requirements 24 and disclosure of tobacco ingredients as a risk to 25 the industry? MONICA WEIDMANN & ASSOCIATES (800) 969-2752 195 1 A. I don't know what Philip Morris believed in 2 1988. 3 Q. Did you personally see that as a risk to the 4 tobacco industry? 5 A. Could you restate that? 6 Q. Yes. Back in the 1988 era, did you personally 7 believe that federal and state product 8 requirements, such as fire-safe cigarettes and the 9 disclosure of cigarette ingredients, was a risk to 10 the tobacco industry? 11 A. I think any time there's a situation that -- 12 that could require you to do something you may not 13 be capable of doing could be a risk. 14 Q. And Philip Morris in 1988 was not capable of 15 creating a commercially feasible fire-safe 16 cigarette? 17 A. I believe that to be the case, yes. 18 Q. Has anyone at Philip Morris ever told you back 19 in 1988 that they were going to work to ensure that 20 no compulsory requirement regarding ingredient 21 disclosure or fire-safe cigarettes became law? 22 A. I can't recall anybody ever telling me that. 23 Q. Do you believe that that was a policy at 24 Philip Morris in 1988? 25 A. I don't know. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 196 1 Q. What is the Center for Indoor Air Research? 2 MR. CRAMPTON: Objection; relevance. 3 If you're reading from something in that document, 4 tell him the page. You may be getting into 5 something that's not at all related to this case. 6 Q. (By Mr. Grisham) Okay. A-28? 7 A. Say again, please. A-28? 8 Q. Yes, sir. 9 A. Okay. 10 MR. CRAMPTON: Actually, I assume there 11 are a lot of things in that document that have 12 nothing to do with this case, and I would object to 13 you going into any of those matters on the basis of 14 them not being relevant. 15 MR. GRISHAM: Okay. Well, I understand 16 you have to make objections. I just don't know 17 what's necessarily relevant until I ask sometimes. 18 MR. CRAMPTON: Understood. 19 Q. (By Mr. Grisham) What is the Center for 20 Indoor Air Research? 21 A. I'm not aware -- I'm not -- I'm not 22 knowledgeable of this area to make many comments 23 about it. I know the center -- C.I.R., as it's 24 called, Center for Indoor Air Research exists. 25 What it is, what it does, who funds it, I don't MONICA WEIDMANN & ASSOCIATES (800) 969-2752 197 1 know. 2 Q. I hand you what's been marked as Exhibit 9 and 3 ask you if you have seen this document? 4 A. I don't recall the document. 5 Q. If a document such as a strategic plan from 6 Philip Morris U.S.A. research and development was 7 created, such as this one purports from the cover 8 page to have been in February of 1989, and it were 9 directed to a restricted distribution list, would 10 you likely be on that list? 11 A. Yes, I would. 12 Q. And there's a name at the top of Exhibit 9. 13 It appears to be A.C. Lilly? 14 A. Yes. 15 Q. Do you know who A.C. Lilly is? 16 A. Yes, I do. 17 Q. Who is that? 18 A. Dr. Lilly. 19 Q. Dr. Lilly, I almost said Mr. Lilly. I would 20 have been batting a thousand. Who is Dr. Lilly? 21 A. I report directly to Dr. Lilly. 22 Q. And his title in 1989 would have been what? 23 A. I think it would have been Research Fellow. 24 In 1989 I don't think I reported to Dr. Lilly, 25 though. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 198 1 Q. All right. You reported to still Dr. -- 2 A. I think it was Dr. Houghton at the time. 3 Q. Okay. Do you ever attend or have you ever 4 attended the quarterly planning sessions of R&D? 5 A. Yes, I have. 6 Q. Do you know what Project Art is or was, A-r-t? 7 A. Yes, I do. 8 Q. Does it have anything to do with ignition 9 propensity? 10 A. No, sir, it does not. 11 Q. Does it have anything to do with burn studies? 12 A. No, sir. 13 Q. Does it have anything to do with a fire-safe 14 cigarette development? 15 A. No, sir, not at all to my knowledge. 16 Q. Sir? 17 A. No, sir, not at all to my knowledge. 18 Q. On page 912 of the document before you -- 19 that's the Bates page number. 20 A. Oh, I'm sorry. Okay. 21 Q. There's a comparison of resource allocations 22 from 1987 to 1988. Are you familiar with seeing 23 these sort of applications and allocations of 24 resources? 25 A. Yes. MONICA WEIDMANN & ASSOCIATES (800) 969-2752 199 1 Q. Under the R&D programs, the fifth one listed 2 is Project Tomorrow? 3 A. Right. 4 Q. That was your project back in 1989, correct? 5 A. Best of my recollection, yes. 6 Q. And in 1987 it appears there was an allocation 7 of staff of 2.0. Can you tell me what that refers 8 to? 9 A. The top of the column says percent of 10 allocated staff. I guess it refers to that. 11 Q. Percent of all R&D? 12 A. That's what I would read it to be, yes. 13 Q. And that's in 1987. In 1988 that went down to 14 1.3, correct? 15 A. That's what it says, yes. 16 Q. In the second column, number of D.I.V.S. What 17 does D.I.V.S. refer to? 18 A. I don't know. 19 Q. Is Project Tomorrow -- does it involve 20 multiple divisions at Philip Morris U.S.A.? 21 A. Yes, it does. 22 Q. Would it involve six to ten divisions on 23 occasion? 24 A. Yes, it would. 25 Q. Would you turn to the next page, which is MONICA WEIDMANN & ASSOCIATES (800) 969-2752 200 1 Bates No. 913, being the last three digits. The 2 first full paragraph, three sentences from the 3 bottom, I want to quote from this document and ask 4 you some questions about the quote. 5 Quote, less resources have been devoted to 6 Project Tomorrow in 1988 primarily because the 7 anticipated government action on ignition 8 propensity has not yet occurred, closed quote. 9 Have you ever heard that statement or 10 similar statements in the course of your employment 11 with Philip Morris U.S.A.? 12 A. I don't recall. 13 Q. Do you know whether or not it's been a policy 14 of Philip Morris U.S.A. to conduct ignition 15 propensity research concomitant with or associated 16 with the level of government activity on fire-safe 17 cigarettes? 18 A. I don't know. If the government were to 19 require something, then it's going to require a lot 20 of people to put together whatever the response is 21 to do it. That may not have anything, however, to 22 do with ignition, real world ignition. 23 Q. On page 30 of that document, Bates No. 939, 24 I'd like to direct you to paragraph B under fire 25 safety. I'm going to quote from the last sentence MONICA WEIDMANN & ASSOCIATES (800) 969-2752 201 1 of the first full paragraph in subsection (B). 2 Quote, although Project Tomorrow is our only 3 current program which addresses this factor 4 directly, new products (sic) such as Delta, Sigma 5 and Beta would also meet a fire-safe criteria, 6 closed quote. 7 Have you ever heard a statement similar to 8 that? 9 A. Not -- no. Not exactly like that, no. 10 Q. Have you heard theories that Delta, Sigma, or 11 Beta would meet fire-safe criteria at some point? 12 A. Yes. 13 Q. Have you ever espoused that theory? 14 A. In so many words, I probably said that 15 products like Beta and Sigma would -- would not be 16 as fire prone as some other products. 17 Q. Why is that? 18 A. The -- in Beta the -- there is no burning 19 tobacco. In Sigma the burning coal is contained 20 within -- within itself, not exposed. 21 Q. All right. And Delta? 22 A. Similar. 23 Q. But no product emanating from any of those 24 projects, either Delta, Sigma, or Beta, has ever 25 been commercially marketed by Philip Morris MONICA WEIDMANN & ASSOCIATES (800) 969-2752 202 1 U.S.A.? 2 A. That's correct. 3 Q. The next paragraph of that document, if you'd 4 look at it, talks about an alternate scenario. And 5 on line 5 of that last full paragraph, the 6 consideration is given as follows: Quote, the 7 first is that a competitor will introduce a 8 successful fire-safe cigarette, closed quote. 9 Have you ever heard any discussions within 10 Philip Morris U.S.A. that theorized that there was 11 a competitor that might come up with a fire-safe 12 cigarette? 13 A. Not any great discussion about it. But you're 14 always concerned about what the competitor might be 15 able to put on the market that you might have to 16 comply with. 17 Q. Do you know of any competitor to Philip Morris 18 U.S.A. that has developed a design for a cigarette 19 that is self-extinguishing on substrate? 20 A. No, sir, I do not. 21 Q. That has a reduced ignition propensity while 22 on substrate that would meet the NIST standards? 23 A. No, sir, I do not. Maybe -- excuse me, maybe 24 you better ask that question again, please. 25 Q. Okay. Do you know any competitor of Philip MONICA WEIDMANN & ASSOCIATES (800) 969-2752 203 1 Morris U.S.A., up through today, that has developed 2 a reduced ignition propensity cigarette that does 3 not ignite substrate under the conditions imposed 4 in the NIST standards? 5 MR. CRAMPTON: The substrate being the 6 duck fabric used in the NIST test? 7 MR. GRISHAM: That's -- yes, their 8 criteria. 9 A. No. 10 MR. CRAMPTON: The reason I try to 11 press on that is you use substrate sometimes to 12 mean fabric and sometimes to mean foam. 13 MR. GRISHAM: I always use it to mean 14 foam. I began to learn in the deposition sometimes 15 Dr. Whidby was using that to refer to foam and the 16 covering, and that's why I tried to be very 17 specific. 18 MR. CRAMPTON: I don't think -- for 19 example, that question you just asked, when you 20 said "to ignite substrate," then I asked are you 21 talking about igniting the duck fabric, and you 22 said, yes, the criteria of NIST. But if you were 23 using substrate to mean foam, then that's not the 24 same as the criteria for the NIST test. And I'm 25 concerned that we're going to have some confusion MONICA WEIDMANN & ASSOCIATES (800) 969-2752 204 1 somewhere along the line on this. 2 A. Yeah. I always, unless you direct me some 3 other way, I've always meant substrate to be the 4 entire mock-up. And we may have a confused 5 situation here. 6 MR. GRISHAM: What I'm hoping to 7 accomplish with the question is -- without going 8 and restating what the task group came up with, is 9 I was hoping to use some of the same language, and 10 that was the technologically feasible instrument 11 that would not ignite substrate. And that's why I 12 was using that generic terminology. 13 MR. CRAMPTON: Causing ignition on the 14 test or something, but when you say not ignite 15 substrate and then you say when you say substrate, 16 you mean foam, that takes it out of the realm of 17 all of these tests. 18 MR. GRISHAM: This last question I 19 didn't say foam. 20 MR. CRAMPTON: Okay. I'll shut up. 21 MR. GRISHAM: That's fine. I love a 22 good debate. 23 Q. (By Mr. Grisham) Let me restate the question 24 and make sure I have it right. Do you know of any 25 competitor of Philip Morris U.S.A. in the domestic MONICA WEIDMANN & ASSOCIATES (800) 969-2752 205 1 market--that is, the United States of America--that 2 has developed a design for a prototype of a 3 cigarette that does not ignite substrate as it's 4 defined by the NIST in their standardized testing 5 protocol? 6 A. No. 7 Q. Has Philip Morris U.S.A. marketed in the 8 domestic United States domestic market the Marlboro 9 100's since, at least, 1990 up through the present, 10 continuously? 11 A. Say again, please. 12 Q. Has Philip Morris U.S.A. marketed within the 13 United States the Marlboro 100 cigarette from 19 -- 14 at least 1990 up through the present, continuously? 15 A. To my knowledge, yes. 16 MR. GRISHAM: Pass the witness. 17 MR. CRAMPTON: No questions. 18 MR. MARKEY: No questions. 19 20 21 (Whereupon deposition concluded 22 4:20 p.m., August 28, 1996.) 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 206 1 STATE OF VIRGINIA ) 2 COUNTY OF ) 3 4 5 I HEREBY CERTIFY that the answers to 6 the questions propounded to me at this deposition 7 are true, and that the foregoing typewritten pages 8 represent a full, true and accurate record of my 9 testimony given in this deposition. 10 11 12 JERRY WHIDBY 13 14 15 16 SUBSCRIBED AND SWORN TO before me by 17 the said witness, JERRY WHIDBY, on this the day 18 of , 1996. 19 20 21 22 NOTARY PUBLIC 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752 207 1 CAUSE NO. 26294 2 SHANNA SHIPMAN A/N/F OF * IN THE DISTRICT COURT OF 3 SHANNON MOORE, A MINOR, * Plaintiffs, * 4 * VS. * JOHNSON COUNTY, TEXAS 5 * PHILIP MORRIS COMPANIES, * 6 INC., PHILIP MORRIS * INCORPORATED, PHILIP * 7 MORRIS U.S.A., AND * SHELLY MOORE, * 8 Defendants * 18TH JUDICIAL DISTRICT 9 REPORTER'S CERTIFICATE OF FILING 10 ORAL DEPOSITION OF DR. JERRY WHIDBY TAKEN ON AUGUST 28TH, 1996 11 I, TAMARA J. BRAUN, Certified Shorthand 12 Reporter in and for the State of Texas, hereby certify to the following: 13 That the witness, JERRY WHIDBY, was duly sworn by me; 14 That this transcript is a true record of the testimony given by the witness; 15 That the amount of charges for the preparation of this transcript and any copies of 16 exhibits is $ (paid by Plaintiffs); That the deposition transcript was submitted 17 on the 10th day of September, 1996, to the witness (X) or to the attorney of record ( ) for a party 18 who was a witness, for examination and signature with instructions for the return of the transcript 19 by the 10th day of October, 1996; submitted to Mr. William Crampton, Shook, Hardy & Bacon, 1200 Main 20 Street, Kansas City, Missouri 64105; That changes, if any made by the witness, in 21 the transcript and otherwise are attached hereto to incorporate herein; 22 That the witness did ( ) or did not ( ) return the transcript; 23 That the original deposition transcript, or a copy thereof in the event the original was not 24 returned to the officer, together with copies of all exhibits, was delivered or duly mailed to 25 Mr. Lynn Grisham, Attorney for Plaintiffs, Waltman & Grisham, 3833 South Texas Avenue, Suite 150, MONICA WEIDMANN & ASSOCIATES (800) 969-2752 208 1 Bryan, Texas 77802; that person being the attorney or party who asked the first question appearing in 2 the transcript for safekeeping and use at trial; That a copy of this certificate was served 3 on all parties and the clerk of the court. 4 5 GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the 10th day of September, 1996. 6 7 8 9 TAMARA J. BRAUN, CSR #3396 10 CSR Expiration: 12/31/97 Monica Weidmann & Associates 11 805 W. 10th Street, Suite 201 Austin, Texas 78701 12 (800) 969-2752 13 14 15 16 17 18 19 20 21 22 23 24 25 MONICA WEIDMANN & ASSOCIATES (800) 969-2752