Tobacco Documents Online

[3/I~/9~] Tobacco attorneys s.~yjudge in error Tobacco attorneys .say judge in error Rules on what witness can say are in dispute The Associated Press ST. PAUL, Minn. -- It's known as Rule 602, and it's supposed to determine exactly what a witness can testify about in a court of law. In Minnesota's long-running tobacco trial, the guideline for exactly what a ~,itness can testify to has become a symbol of the split between the judge and defense attorneys. In a case that depends largely on industry documents, Ramsey County District Judge Kenneth Fitzpatrick has made it clear he expects witnesses to be familiar with the plaintiffs' exhibits before testifying. And Fitzpatrick moved swiftly when they weren't. He slashed three hours from the defense's allotted 225 to present their case when Gerffrey Bible, chief executive of Philip Morris Cos. Inc., pleaded ignorance once too oRen. The tobacco industry cites the judge's apparent disregard of Rule 602, one of Minnesota's Rules of Evidence, as one reason he should remove himself from the case or declare a mistrial. Their latest motion for a mistrial, one of three, was filed Wednesday. "These people aren't going to corporate heaven, but at least they are entitled to a fair trial," one defense attorney said. Fitzpatrick has refused to comment on the trial while it continues. The Minnesota rule is similar to a federal rule. It says: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." In three days of testimony the first week of March, Bible said repeatedly he had not reviewed and was unfamiliar with 115 formerly secret Philip Morris documents placed into evidence by the state. Bible was named chief executive in 1994 after spending most of his career overseas working in non-tobacco parts of the company, which includes Philadelphia Cream Cheese, Post cereals, Maxwell House coffee, Altoids peppermints, and Miller beer among its brands. "Sir, I have a lot to remember," he told Michael Ciresi, head attorney for the state and Blue Cross and Blue Shield of Minnesota, which seek $1.77 billion for treating smoking-related illnesses, plus punitive damages. "Whether he reviewed any document designated ... is not relevant. Hds either seen it or he hasn't seen it," Philip Morris attorney Peter 3116198 TI3606-1721

[_3/15/98] Tobacco attorneys say judge in error Bleakley argued/n c~urt. '~o, it's relevant. That's the purpose of the designation," Fitzpatrick said. Defense attorney Robert Weber, representing R.J. Reynolds, got the same ruling when he objected to questions asked of Reynolds' chief, Andrew Schindler. Weber cited Rule 602 at least seven times. Schindler began worldng for RIR Industries (now R JR Nabisco), the holding company of Reynolds Tobacco, in 1974 and first worked for the tobacco arm in 1976. When Ckesi asked SchindIer about a 1969 Philip Morris memo discussing a Reynolds lab where the effects of cigarette smoldng were being tested on animals, Weber objected, saying Rule 602 meant Schindler didn't have to answer unless he had personal knowledge. "You can answer if you know," Fitzpatrick ruled. Following another Rule 602 objection by Weber, the judge called the attorneys to the bench for a lengthy discussion out of hearing of the jury. Fitzpatrick then said Schindler could answer the question about chronic smoke exposure research being done by Reynolds in 1969. When asked about a 1953 document, Schindler said he hadn't read it. "I was only 8 years old at the time," he said. "This is 45 years ago ... I don't even know who these people were. I have no knowledge of what these people were doing." Schindler said he started seeing the historical documents about 1 1/2 years ago as the company became more involved in lawsuits. Weber said the judge's reading of Rule 602 may be unprecedented. "I think it is clearly an error to put somebody on the stand and ask them over and over things they have no knowledge of. I don't think this would happen in any other courtroom in America," he said. "The idea &having afact witness do that, I've never, ever seen it done before," said David Bernick, who is representing Brown & Williamson Tobacco Corp. in the trial. Fact witnesses testify on their personal knowledge and differ from expert witnesses, who testify on matters for which their education or training qualifies them as experts. Cliff Greene, a lawyer and visiting professor at William Mitchell College of Law in St. Paul, agreed it was unusual for a judge to require fact witnesses to be prepared to discuss large volumes of documents they had no firsthand knowledge of. Greene did not want to say whose interpretation of the rule he thought was correct. But he said it was easy to understand the plaintiffs' intent in confronting top tobacco executives with possibly damaging documents. o "They want to associate them with the company. They want someone to personify the company and dramatize some negative inference," Greene said. "They need to get exposure for documents, and they don't want defendants to prevent them from doing that by saying, 'We haven't looked at them.' " [TOP I NEXT STORY>> I NORTH CAROLINA I HOME PAGE ] 3/16/98 TI3606-!722