Witness Roundup 1: Farone, Harris
October 25, 2004 2:31 am by Gene BorioFARONE v. WEBB
In general, Philip Morris attorney Dan Webb’s attempt to damage Farone’s testimony failed. Judging by Judge Kessler’s unqualified encomium of Farone at the end of his marathon session, his Direct Testimony remains solid and damning.
Watching this battle between 2 seasoned veterans was like watching a mental version of the Frazier/Ali fights. Farone parried Webb’s charges with subtle brilliance.
And yet, on a purely physical level, if this were a movie and you put the two 50-some-odd-year-olds into different costumes, made the witness stand a beat-up counter, and extracted only the sight and sound of their argument, rather than the meanings of their words, you could imagine without difficulty Farone–with his slightly pudgy body, his comb-over and his glasses–as the sharp, impassive pawnbroker, and Webb– with his thin dark straight hair, with his pasty, ex-boxer’s face utterly absorbed in argument, and with his head angled down in attack mode–as the wily junkie trying to wheedle the most cash he could for some beat-up old trombone.
JEFFREY HARRIS ON COLLUSION
To a lesser extent, despite some serious hits, I think Jeffrey Harris’ testimony on the economic theory on collusion survived intact. Harris, Judge Kessler noted, was quite careful about narrowing his testimony strictly to one area of expertise–economics. I believe Judge Kessler will take Harris’ carefully-established structure of industry “collusion” under due consideration as a valid and accepted theory taught in textbooks.
While the Defense’s pit bull Mr. Bernick tried to undercut Dr. Harris’ testimony by charging he presented no evidence any individual or company had intent to collude, Mr. Harris said the Collusion Theory does not deal in intent. Rather it examines incentives to collude, combined with a company’s actual behavior. The theory determines whether a company’s actions are consistent with collusion, and inconsistent with a company’s competitive self-interest, ie, what a company would normally do to gain a competitive advantage over its rivals–in this case, actually develop and market, in scientific terms, a safer cigarette.
Harris held that any Government actions– Surgeon General’s pronouncements, FDA regulatory threats or even FTC rulings–played only a minor role in the collusive decisions the industry chose to take.
On the down side, when Judge Kessler praised Farone as a brilliant expert who testified without the ego that often accompanied many experts’ testimonies, she may have been thinking of someone just a bit like Jeffrey Harris.
In looks, he reminded me of a leaner, younger Ralph Nader. He tended to talk out of the right side of his mouth and would often hold his chin up and out and turned slightly to the side. Dr. Harris is obviously a careful, brilliant and dedicated doctor (besides being a tenured Professor of Economics at MIT, he is a primary-care physician on the medical staff of the Massachusetts General Hospital), but he could come off as officious at times. Often he would spell out the names he used. As an experienced courtroom witness, he apparently felt he had reason to do so, yet the reflex seemed a bit pedantic.
These however were minor quibbles. As with the Farone/Webb confrontation, the Harris/Bernick battle was between two canny and long-time rivals, veterans of courthouse wars in other times, other states (Judge Kessler had to caution Mr. Bernick not to get “adversarial” at least once). You had the feeling each had learned from previous encounters, and each had raised his game accordingly. Mr. Bernick got in some serious blows, but I believe Dr. Harris could claim the victory.
In objecting, Webb misspoke several times by referring to Dr. Harris as “Mr. Harris.” In the course of one argument to Judge Kessler, she interrupted to correct him: ” Doctor Harris.” He did it again once more after this, but caught and corrected himself.
It’s an interesting trait of Webb’s, this tendency to misspeak or even mispronounce. While he was questioning Dr. Brandt, I was amazed at how badly he stumbled on– and never really did properly pronounce– “adrenal.” In the same sentence, he seriously mangled “medulla.” On “epinephrine,” he finally gave up and said to Brandt, “You can pronounce that.”
Shouldn’t a tobacco lawyer have some basic command of those terms? It was so bad I suspected a setup, but I can’t imagine what for. In his summation, will Webb say, “He said he wasn’t a medical expert, Your Honor, but he pronounced ‘epinephrine.’”