Let me admit I’m pretty confused and troubled by the Dixon testimony, which introduced several concepts that a) I’d never heard of before, and b) seem to be unique to the tobacco industry, yet which Dr. Dixon asserted are backed up in reviews of the literature, c) were virtually uncontested in DOJ attorney Sharon Eubanks’ uncharacteristically weak cross-examination, and d) brought into sharp relief this strange parallel, almost Bizarro world of extensive, in-depth tobacco industry research.
1. First of all, the 2-step inhalation process Dr. Dixon asserted is new to me. As Judge Kessler said in her question on this, “You sharply differentiate between the act of puffing, taking the smoke into the mouth, and inhaling, ie, down into the lungs.” Dr. Dixon is clear in his written testimony:
“First is the puff, which is entirely a mouth process, and the second is the inhalation which occurs after the puff is done. “
In recalling my own smoking behavior, this makes some sense, and the mouth-only-suction idea certainly would apply to cigar smokers, who in theory skip the second step entirely.
But for cigarette smoking, to “sharply” differentiate the two steps seems entirely wrong. Some mixture of this process seems right to me.
2. Still, even if not entirely separate, this 2-step process diminishes the effect of “impact” (on the back of the throat region) as a factor in a smoker’s ability to instantly control intake, or puff volume. Dr. Dixon’s experiments seemed to indicate that puff volume was controlled by the mouth’s sensory apparatus (”mouthfeel”) and was determined by tar, not nicotine.
This would refute Dr. Burns’ testimony that smokers regulate their intake because of the effect of nicotine on the “impact” area. (This “impact” word, by the way, has been used for a long time exclusively in the tobacco scientific community. In the late 90s, it migrated into the scientific community. Roughly, it is nicotine tingling the musculature in a region in the back of the throat, sending nerve signals ( notnicotine) to the brain.
3. Dr. Dixon talked about how another Doctor has discovered an anomaly in one table of BAT’s notorious Leaf Blender’s Manual (1991). Dr. Dixon’s testimony clearly implies (without stating) that the whole idea within BAT that pH increases the availability of nicotine was derived from the LBM, and further, that the LBM “researchers” had concluded that “there was an increase in nicotine transfer as the result of using ammoniated sheet” based on “misinterpreted data” from one table within the LBM.
Basically, Dr. Dixon showed that there was not an increase in nicotine transfer efficiency. Transfer efficiency means, per se, that more nicotine is extracted from the tar. Yet the table clearly shows the tar/nicotine ratio remains the same, ie, even though the nicotine does go up with use of the ammoniated sheet, so does the tar, in general (Ms. Eubanks showed one slight anomaly in the table).
Dr. Dixon showed the tar and nicotine levels rose because the ammoniated sheet caused the puff volume to rise, ie, there was simply more smoke measured, therefore more nicotine AND tar were measured. The ratios of these, however, remained basically the same, ie, there was no increased efficiency of nicotine transfer into the gaseous phase.
Yet though Dr. Dixon said the mistake was pointed out to B&W shortly after the release of the LBM, there seems to be no later iteration of it that has made this correction.
4. Dr. Dixon seemed to agree on some amount of compensation for most smokers–around 50%, ie, if a smoker switched down to a lower tar cigarette, he would compensate a bit, getting a reduction in tar and nicotine, even if only half the reduction that would be predicted from FTC measurements. This would contrast with Monograph 13’s conclusion of complete compensation (100%).
In court, Dr. Dixon used only one technique of compensation to seemingly conclude compensation was incomplete–puff intensity. But in his uncontested written testimony, he seemed to effectively dismiss the other methods of compensation, ie, number of puffs per cigarette, number of puffs per day, speed of puffing, and vent-hole blocking.
Dr. Dixon addressed other technical areas in his written and live testimony, and seemed to come off as a very strong witness, whose assertions were powerful, even if many were unpublished. They did not seem to be seriously brought into question by Ms. Eubanks’ short redirect.
B&W’s David Bernick seemed quite pleased with BATCo’s Bruce Sheffler’s examination of Dr. Dixon. Another courtroom observer felt Ms. Eubanks failed to understand “how science works.”
I’ll Give You Three! One- Two–
Mr. Sheffler brought in a lawyering technique we haven’t seen much of so far–physical intimidation. (We did saw a variation of this technique dealt with humorously on “Boston Legal” a few weeks ago.) I used to think of Mr. Sheffler as “The Colonel” before I knew his name–because of his large frame, abundant white hair, big white mustache, and smiling, confident, laid-back mein.
Well, Wednesday morning, Judge Kessler began court by letting everyone know she was in a foul mood over unresolved issues concerning Dr. Dixon’s exhibits. At one point, when Mr. Bernick rose to assist Mr. Sheffler, she sat him back down with, “Mr. Bernick, we have one lawyer per side, especially when we get to something as annoying as this.”
And perhaps Mr. Sheffler did need help. He had to resort a couple of times to The Voice. All the lawyers have the ability to strengthen their voices, but more than most, Mr. Sheffler can assume that certain tone a father may use when his child has just stepped over the line, to let the child know that any more nonsense may be severely–and quote possibly physically–punished. His voice gets noticeably deeper, stronger, far more insistent and forceful–intimidating, actually, and I’m sure that’s part of its purpose. At one point in arguing with Judge Kessler yesterday morning, Mr. Sheffler used The Voice even rougher than I’d heard it before. But it doesn’t work with this judge, especially in the mood she was in. She denied his argument with aplomb and went on to the next matter.
Then, during Mr. Sheffler’s redirect of Dr. Dixon, Ms. Eubanks rose to object to a line of questioning. Mr. Sheffler seemed to know exactly what Ms. Eubanks was objecting to almost before the words left her mouth or she had even gotten fully to the podium. In sudden response to the beginning of her objection, he raised his hand sharply in exasperation, as if to say, “OK! If I have to take the long way around I’ll take the long way around!” and immediately changed his line of questioning and went on. Ms. Eubanks sat back down.
Mr. Sheffler is not a small man, and seeing that large hand swing up in the air so closely to Ms. Eubanks was a bit worrying. Ms. Eubanks may not be so quick to fly up to the podium on an objection next time.
Perhaps I’m unfairly denigrating Mr. Sheffler, but if there’s one thing I’m learning in this trial, it’s that with lawyers, few things happen accidentally.
[Note: By the end of the trial, I decided that Mr. Sheffler is simply this big ol’ guy, a bit emotional and physically demonstrative, and that he is innocent of any allegations of physical intimidation. What finally convinced me was a day late in the trial, when Mr. Sheffler was strenuously arguing a point to Judge Kessler. Mr. Bernick approached the podium to assist–and almost got clocked himself! Mr. Bernick–who, considering the size differential may have gotten tossed all the way to the gallery–turned around quickly with a wry smile celebrating his narrow escape. Mr. Sheffler, reacting to the gallery’s laughter, turned to see Mr. Bernick there and asked, “Oh! Did I–?”
Judge Kessler, ever the jurist, assured him it was “just a mild case of assault and battery.”
My apologies to Mr. Sheffler for the rather ugly insinuation.
–gb, September 7, 2005]