Tobacco On Trial

1. There seemed to be some difficulty in gaining Mr. Gulson’s testimony in Australia. Mr. Gulson was Senior Counsel for WD, HO Wills (now BATAS) from 1989 to 1990. DOJ expects him to testify that BATCo directed Wills and Gulson to destroy, claim privilege over, or send offshore various documents in order to keep them out of litigation.

Apparently Australia has some intractable regulations about foreign depositions, and a plan was in the works about taking Mr. Gulson to New Zealand, were willing and able to travel that far. However, DOJ would much prefer to depose him on US territory–Hawaii was mentioned, though it’s a tremendous distance from Australia. “American Samoa” whispered the Public Health professional sitting next to me (ex-Smokeless States director, Tom Houston). A nice suggestion that would cut off 2,600 miles.

2. It seems as if Donald Hoel’s testimony will be thrown out. Judge Kessler seemed persuaded by Defense arguments. She said, “when a witness dies before the cross-examination, the opposing party is entitled to have the uncompleted testimony suppressed.” She said she would read a DOJ submission on a 1965 Continental Can ruling over the weekend before making her decision, but she didn’t hopeful for the DOJ.

3. The 300+ page 1986 Jones/Day document, so startling when it was first discovered, will not be admitted as evidence. Rather than a near-admission of guilt, Judge Kessler said, “It’s simply an examination of [litigants’] theories, and what their responses might be to those theories.”

4. Mr. Bernick complained on Tuesday about the sheer volume of material that DOJ has given to Susan Ivey, the President and CEO of Reynolds American. He said she has a foot-high pile of scientific articles to plow through, and, as your honor knows, he said, this case can have so much material, “it exceeds the grasp of any one person . . . ”

Judge Kessler cut him off, smiling. “Don’t say that, because it’s not going to exceed the grasp of this person.”

5. Judge Kessler seems to be holding up, but last Wednesday was the first day I’d seen her looking tired in the morning. She’s obviously laboring under some sort of long-term cold, flu or whatever. It was 2-3 weeks into the trial when I noticed she had something in her mouth. “Is she chewing gum?” I thought. I soon saw that it was a lozenge. I noticed then her slight cough.

A week or so later, she said she had bowed to family pressure, and would be going to a doctor on Thursday. She mentioned it because the court session would have to end early that day. She never told us what the doctor said, but her condition does not seem to be improving.

This entry was posted on Monday, November 15th, 2004 at 2:56 am and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.