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Price v. Philip Morris12/15/2005
continued to permit use of the descriptors.
The cross-examination of Dr. Peterman focused almost entirely on questions related to the issue of federal preemption. He was not asked in any detail about the FTC's authorization of the use of the terms "low tar," "lower tar," "lights," or other descriptors. Rather, he was questioned in great detail about whether state regulation of the use of such terms would conflict with the FTC's program.
During a recess in the cross-examination of Dr. Peterman, the circuit court indicated to counsel for PMUSA that "if you're relying on just on him, you lose preemption, and I-I'll just go ahead and not waste your time and strike your defense." Counsel for PMUSA explained that Dr. Peterman's testimony also went "directly to the primary jurisdiction defense," and that the testimony regarding "the use of descriptors is very direct evidence of our primary jurisdictional affirmative defense."
After cross-examination resumed, Dr. Peterman admitted that he could not identify any FTC trade regulation rule that regulated the use of low tar descriptors. He also agreed with plaintiffs' assertion that no FTC trade regulation rule either requires the use of such descriptors or approves the use of such descriptors. He was then asked if the use of such descriptors by a tobacco company was "a voluntary one." He replied that it would be a decision to be made by the individual firm. A cigarette manufacturer could drop the use of the term "light" or other low tar descriptors if it chose to do so, but would still, under FTC policy, have to publish the tar and nicotine numbers.
With regard to the 1971 consent order entered into by the FTC and American Brands, Dr. Peterman was asked whether he believed that the consent order provided guidance to the cigarette industry and if, even though PMUSA was not a party to the order, it would "sort of know how far they can go and how far they can't go." He agreed with this statement.
The evidence offered by plaintiffs on the issue of damages is worthy of mention. Plaintiffs' expert Jeffrey Harris, M.D., testified regarding the "contingent valuation analysis" that he conducted using data obtained by J. Michael Dennis, Ph.D. Dr. Harris holds a bachelor's degree from Harvard University and masters and doctoral degrees from the University of Pennsylvania. He is currently on the faculty of the economics department of the Massachusetts Institute of Technology and holds an appointment with the Harvard Medical School. Dr. Dennis is the vice president and managing director of the Government and Academic Research Department of Knowledge Networks in California.
Dr. Dennis testified that Knowledge Networks conducts surveys on the Internet, primarily for university professors or other academics who are conducting federally sponsored research. The company has "web-enabled" a panel of some 40,000 randomly selected United States households to participate in various surveys. The demographic characteristics of these households is generally similar to the United States population as a whole.
For purposes of this case, 2,701 panel members were invited to participate in a survey on the basis of their being current or recent smokers. 1,779 of these responded to the on-line invitation by completing the "screening survey"; 276 of these "qualified for the main interview" based on their answers to three screening questions. The screening questions eliminated those who had not smoked in the previous year, those who did not smoke Marlboro or Cambridge products, and, finally, those who did not smoke Lights. In addition, the panel members were eliminated if they answered "no" to the question whether they c
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