THU AM: Human Toll of Smoking Bursts into Courtroom
October 14, 2004 1:38 pm by Gene BorioIn a morning of highly technical testimony, tobacco’s effect on a single human being–and her relative–broke out in court.
Bringing it Home
It began in a line of aggressive questioning by DOJ attorney Joel Schwartz, who was trying establish that RJR employees who testify in litigation stood to gain significant financial or job-related benefits.
Schwartz questioned Dr. Gentry about a letter to a scientific committee in which Gentry recommended Dr. David Townsend for advancement. Among the scientific encomiums, Gentry had written (paraphrasing), “The value of his expertise to the company is immense given the threat of regulation and levels of damage sought in liability cases.”
Schwartz, in characterizing the phrase, said something about how the liability cases against the industry were “because of people’s relatives they killed.”
This was the first such occurrence in the trial; a bit startling in this staid, dry courtroom, which has so kept the heart of this trial on a strictly legal, technical and scientific level.
However, no one gasped or seemed startled; everyone, including Judge Kessler, seemed to let it slide.
But at the end of Gentry’s examination, David Bernick rose to object to Schwartz’s reference to “killing relatives.” Bernick said he’d tried several tobacco cases, and many non-tobacco cases, and had never heard that kind of statement in court. He asked the judge to censure Schwartz.
Judge Kessler was about to say something when Schwartz said, “My dead aunt who died of lung cancer after 25 years of smoking Kools would take issue with . . . . ”
“That’s exactly what I’m talking about . . . .” began Mr. Bernick.
The dialogue here from several parties was briefly unintelligible–no shouting, mind you–but Judge Kessler’s voice quickly silenced all:
(paraphrasing): “I was going to say, inflammatory comments are not useful, but sometimes people do get carried away. BUT, you cannot let those kinds of personal insults come into the courtroom.”
Sharon Eubanks by then had risen to the podium, and said, “Yes, your Honor, we recognize that” and said it wouldn’t happen again.
As the court recessed for lunch, the Defense team, including Mr. Bernick, seemed less insulted than elated. They knew the wires had a story.
October 15th, 2004 at 12:12 pm
In watching the DOJ case there has been no new news and it has been basically a rehash of history. The DOJ should either improve the story or they should just punt and go away … what a waste
October 18th, 2004 at 1:33 pm
The following are rough transcripts of Joel Schwartz’ comments in and following his cross-examination of RJR scientist Jeffrey Gentry.
The discussion preceding the below was about a recommendation of Mr. Townsend for advancement at RJR:
SCHWARTZ: That’s why it was so important that you have an expert like Dave Townsend here because he can fight against anybody trying to get money out of the tobacco company after they’ve killed one of their relatives. That’s why he wrote that didn’t he?
BIERSTEKER: Objection, Your Honor, that’s argumentative.
JUDGE KESSLER: Oh, the objection’s overruled it’s fair game.
GENTRY: The value for Dr. Townsend for our company is his knowledge and his expertise in this area.
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The following is a rough transcript of the exchange between Joel Schwartz’, David Bernick and Judge Kessler which occurred immediately following the cross-examination of RJR scientist Jeffrey Gentry:
BERNICK: My motion relates to the comments that were–or the statement that was made by counsel in the course of questioning the witness, there was a reference to killing relatives, and I believe that that’s a highly improper suggestion or statement to be made in this proceeding. We’ve tried a lot of these cases — I’ve tried a lot of tobacco cases, non-tobacco cases involving issues and controversies and I don’t think I have ever heard that kind of statement made before a court.
It’s not a question of whether it’s personally offensive to my client or the other clients, it’s a question of how it reflects on this proceeding. It was unnecessary for the questioning of this witness who was by counsel’s own account a credible witness and was being responsive, and we’d ask for an admonition that counsel not make such statements and innuendos and suggestions and inflammatory remarks in the future.
JUDGE KESSLER: Well–
SCHWARTZ: My dead aunt Violet (illeg.) developed lung cancer who smoked Kools, his product, for 25 years, might take issue with his comments –
BERNICK: That’s precisely the kind of unprofessional conduct ought not be aloud —
JUDGE KESSLER: Mrs. Schwartz, all lawyers occasionally get carried away, but it’s really a mistake professionally to let personal issues start to predominate or start to heavily influence your handling of the case or your approach to witnesses. Before you reply to Mr. Bernick, I’m very sorry–simply going to say that inflammatory comments are not useful but everybody says something sooner or later in their life that they probably shouldn’t have said, but with your personal comment, I really do reiterate that you can’t let those kinds of personal issues come into the courtroom. I understand. Everybody has their views on all sorts of social issues, but they can’t take over now.
SHARON EUBANKS: Thank you, Your Honor, our response is that we will take heed to your remarks just now and we recognize that. Thanks you.
JUDGE KESSLER: All right. Everybody, 2 PM, please, for lunch and hopefully the air conditioning will be on.