Thu AM: Webb/Bernick: Gov in Big Trouble: No Fraud Proof and ETS “Liferaft” is Sinking

November 18, 2004 2:43 pm by Gene Borio

Mr. Webb and Mr. Bernick gave the Defense’s interim summation today, both saying that government has proven nothing in the way of fraud or RICO violations. They claimed many of the government’s witnesses have backfired on them.

Mr. Bernick’s presentation, while having some strong points, also contained some eyebrow-raisers.

Mr. Bernick claimed (paraphrasing), “By 1970, in the words of Dr. Brandt, it was the very rare person who thought that smoking wasn’t harmful. Is it a fraud to state a scientific opinion when no one believes it is real.?”

This tree-falling-in-the-forest-when-no-one’s-arournd-is-not-fraud argument even drew a response from Judge Kessler:

“You can’t have it both ways, Mr. Bernick. … that the [public] knew smoking was bad, but it’s ok for the industry to argue it’s a controversy?”

Since the government’s ETS case is the only way the DOJ could claim any kind of remedial relief, Webb called the ETS pillar a “liferaft.”

One Response to “Thu AM: Webb/Bernick: Gov in Big Trouble: No Fraud Proof and ETS “Liferaft” is Sinking”

  1. krueger Says:

    This industry has a long history of trying to “have it both ways”. Fortunately, judges see through this.

    Judge Munter, upholding the Henley verdict in 1999, put it this way: “having asserted that causation has not been established, Philip Morris cannot argue persuasively that members of the general public knew better, and by reason of their superior knowlege, are deprived of legal recourse”. Henley%20v%20PM/MunterOrderHenley.pdf

    The tobacco industry wants to “have it both ways” because of its endless zeal to blame the customer. In essence, the dialog goes like this: it’s the customer’s fault the product hurt him; but you lied to the customer, you misled him; right, so it’s his fault for believing us, he should have known better.

    Judges can say, OK, that reasoning isn’t going to fly.

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