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Scenes from the last great tobacco war being waged in a courtroom in Orlando 

Page 6 of 8

Today, the exhibit concerns a 1969 campaign concocted by marketers working for Brown & Williamson, manufacturer of Kool cigarettes and Raleigh and Viceroy. Under the Orwellian heading Project Truth, Proctor says, it intended to counteract evidence of cigarettes' damaging effects by planting seeds of doubt.

The cigarette companies had been hit with a Surgeon General's report in 1964 that called their product dangerous. The industry had to respond. In the words of one memo, "We must in the near future provide some answers which will give smokers a psychological crutch and a self-rationale to continue smoking."

Enter light cigarettes. According to cigarette companies, tiny filter pinholes allowed air to mix in with the smoke and dilute it. The resulting so-called "lights" were lower in tar and nicotine, manufacturers claimed. And indeed they were – if measured on a smoking machine. In reality, most smokers covered up the vents with their lips or fingers and delivered the higher yields into their lungs.

But the new cigarettes worked only too well as a crutch. Kenny Kerrivan switched to Marlboro Lights for two reasons: His multi-pack-a-day habit worried him, and he thought switching to lights would help him quit. He also believed he was getting less nicotine and tar. Eventually, though, he ended up smoking more to get the same fix. He would often wake up in the middle of the night to smoke one or two cigarettes.

Like other lights smokers, Proctor testifies, Kerrivan was compensating. He was addicted to a level of nicotine and would smoke however much he needed to get it. In seeking to smoke less, Proctor concludes, Kerrivan often inhaled more smoke, sometimes puffing more deeply and holding it in his lungs.

Now it's Davis' turn. He takes the same tack with Proctor that he did with Grunberg: chip, chip, chip. Does he want cigarettes banned? Yes, Proctor replies. And how many times has he testified in cases? Eighteen last year, Proctor says. That's an awful lot of money. Is this the majority of your compensation now? Yes, he says. And haven't you made almost $2 million testifying in smoking trials? Yes. The implication Davis makes is that Proctor is more hired mouthpiece than man of science.

And this is one of the many ironies of the Engle trials. Proctor is a passionate anti-smoking advocate who probably would have testified once if this were a class-action case. But because Big Tobacco successfully got the Engle class decertified on appeal – turning Kenny Kerrivan's case and thousands of others into lawsuits instead of just claims – he and others now may testify dozens of times, if not more. For Davis and other tobacco attorneys, that bug is now a feature. They can tag Proctor and other expert witnesses as money-chasers.

Davis peppers Proctor with examples of anti-smoking material in the popular press and Gallup polls that show the general public was aware of the risk of lung cancer. He introduces public service announcements from television and cites the 13 million people who quit smoking after the 1964 Surgeon General's report. Americans could see the dangers of smoking, he argues, and act freely on that information.

Davis is good. Byrd has just a few minutes of redirect to undo his work.

"What's missing, if anything, from that question in the Gallup poll that from your conclusions and research in the field about what people knew during this era?" Byrd asks.

"Well, what's missing is, 'Do you believe?' And that's a much lower response," Proctor replies. "And if you ask it another way, what do you think – without prompting, what do you think is wrong with cigarettes, you get 1 or 2 percent of people mentioning lung cancer. So much depends on how you ask the question. If you say, 'Have you heard that the government is hiding aliens in Area 51?' You know, everyone has heard that, but you don't necessarily believe it."

At least two jurors nod their head at his response.

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