Defense Seeks to Run Myers’ F1 Testimony off the Road

May 27, 2005 6:56 pm by Gene Borio

The Joint Defense filed a strong brief Wednesday asking the Court to strike Campaign for Tobacco-Free Kids CEO Matt Myers’ F1 testimony, on the grounds that it is “back-door expert testimony” snuck in by a fact witness. As such, Defense is not able to rigorously challenge it the way it could an expert witness’ testimony.

The Defense brief, while indulging in some oh-by-the-way aspersions (”Mr. Myers is a sophisticated lawyer and highly motivated anti-tobacco activist,” “He went on to opine….,” etc.), does have some strong points. It states that Mr. Myers’ testimony is, “‘made-to-order’ testimony manufactured by a willing fact witness to suit a litigant’s evidentiary needs,” and “lacks the ‘extremely important’ nexus to any job-related responsibilities.”

Specifically, the brief charges:

• He has no actual data on the popularity of Formula One racing in the United States.

• He did not see 12 of the 13 exhibits designated as part of his Formula One testimony until they were shown to him by the Government in preparation for his testimony in this case.

• He continued to investigate the facts on which his testimony was based after the Government had contacted him to testify.

The brief states,

Mr. Myers’ testimony concerning Formula One racing could never withstand scrutiny as expert opinion testimony under Rule 702. It is entirely impressionistic, not the result of scientific method or study, and stretches scant factual knowledge into broad overarching opinions to serve the Government’s purposes. . . .

If Mr. Myers’ Formula One testimony were allowed to stand, Joint Defendants theoretically could now present a fact witness in rebuttal who had recently been sent out to newsstands around the city and asked to review television schedules, and then brought back into court to opine that it was hard to find magazines and television programs on Formula One racing featuring the Marlboro trademark.

Indeed, Mr. Myers on the stand left the impression that CTFK’s monitoring of race car sponsorship, especially that of F1, was rather catch-as-catch-can, due to limited resources.

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Text of 5/25/05 JD motion to strike Myers\' F1 testimony follows:

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

PHILIP MORRIS USA INC.,

f/k/a PHILIP MORRIS INC., et al.,

Defendants.

Civil Action No. v. : 99-2496 (GK)

Next Scheduled Court Appearance: Trial (ongoing)

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JOINT DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO STRIKE FORMULA ONE TESTIMONY OF MATTHEW L. MYERS AND RELATED EXHIBITS

I.

Introduction

Based on their cross-examination of Matthew L. Myers, Joint Defendants move to strike Mr. Myers’ testimony concerning Philip Morris International’s sponsorship of Formula One racing as violating Fed. R. Evid. 602 and Fed. R. Evid. 701, and to exclude any exhibits relating to that testimony from evidence. The facts and law relevant to this motion are set forth below.


II.

Factual Background

Mr. Myers is a sophisticated lawyer and highly motivated anti-tobacco activist whom the Government called as a fact witness in the remedies phase of its case. He is currently the President of the Campaign for Tobacco-Free Kids, an anti-tobacco organization with which he has worked since 1996. As set forth in Mr. Myers’ testimony, his organization seeks to reduce tobacco use by young people and others “by working to frame tobacco as an important public health problem” and “countering the tobacco industry in the media,” among other things. Myers Direct Examination at 2:11-13.1 In his written direct examination filed with this Court, Mr. Myers offered an array of testimony regarding the current business practices of the defendants and others. Included among this was testimony attacking Philip Morris International Inc.’s sponsorship of Formula One racing, which takes place almost entirely outside the United States. See Myers Direct Examination at 35:20 - 37:2. Specifically, Mr. Myers testified as follows:

Q: How do international brand name sponsorships make the situation more difficult?

A: International brand name sponsorships impact the United States via number of routes, including the media and the internet. Philip Morris in particular is the largest presence at the international Formula One car racing circuit. Formula One is one of the most popular sports series in the entire world, and is broadcast back here in the United States.

Id. at 35:20 - 36:2. He went on to opine concerning the impact of Philip Morris International’s sponsorship of Formula One racing, stating, for example, that “[t]he Philip Morris Formula One sponsorship enables the companies to get the Marlboro brand in front of a worldwide audience, including an audience here in the United States.” Id. at 36:7-9. Finally, he identified a series of 13 exhibits related to Formula One racing, claiming that they “demonstrate how the international Philip Morris Formula One sponsorship impacts audiences and viewers in the United States, particularly when the races are broadcast in the United States and when photographs of the Marlboro vehicles are printed in American magazines and newspapers.” Id. at 36:21 - 37:2. Joint Defendants objected to this testimony and these exhibits on multiple grounds. See Joint Defendants’ Objections to the Written Direct Examination of Matthew Myers and

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1 This refers to the United States’ Written Direct Examination of Matthew L. Myers.

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Accompanying Exhibits at 18-21. The Court overruled these objections prior to Mr. Myers’ live testimony. See Trial Tr. at 21045.2 In doing so, however, the Court observed:

In addition, he may testify about facts relating to the International Formula 1 car racing team sponsorship. And while I certainly know that joint defendants strongly object to this testimony on the grounds that it lacks factual foundation, they are going to be able to fully explore on cross-examination whether Mr. Myers does have any personal knowledge on this subject. As I say, that will come out on cross and I don’t have to worry about whether joint defendants can elicit that or not.

Id.

Based on their cross-examination of Mr. Myers, Joint Defendants now move to strike Mr. Myers’ testimony regarding Philip Morris International’s sponsorship of Formula One racing and exclude the related exhibits proffered through him. Mr. Myers admitted the following on crossexamination:

• He has no actual data on the popularity of Formula One racing in the United States. See Trial Tr. at 21685.

• He did not see 12 of the 13 exhibits designated as part of his Formula One testimony until they were shown to him by the Government in preparation for his testimony in this case. See id. at 21696-21702.

• He continued to investigate the facts on which his testimony was based after the Government had contacted him to testify. See id. at 21709- 21713.

Such “made-to-order” testimony manufactured by a willing fact witness to suit a litigant’s evidentiary needs is manifestly improper. Specifically, it violates Fed. R. Evid. 602 and 701,

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2 Joint Defendants, of course, maintain and do not waive these objections as well as those made during the course of Mr. Myers’ live testimony. In addition, a substantial question exists regarding whether this Court would have subject-matter jurisdiction to order that Philip Morris International be prohibited from sponsoring Formula One racing outside the United States, as proposed by Mr. Myers. Putting aside the fact that Philip Morris International is not a defendant in this action, nothing about the RICO statute suggests that Congress intended it to have such extraterritorial impact. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (”It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’”) (citations omitted); United States v. Yakou, 393 F.3d 231, 243 (D.C. Cir. 2005) (holding that presumption against extraterritoriality should control reach of aiding and abetting statute). Joint Defendants will brief this issue at the appropriate time.

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which, as this and other courts have held, requires that lay witness testimony be based on personal knowledge and grounded in the witness’ everyday experience. Accordingly, as set forth below, Mr. Myers’ testimony regarding Philip Morris International’s sponsorship of Formula One racing should be stricken, and the Formula One exhibits proffered through his testimony should be excluded from evidence.3


III.

Argument

Fed. R. Evid. 602 provides that “[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.” Consistent with this requirement, Fed. R. Evid. 701 limits opinion testimony by lay witnesses “to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” As the comments to the 2000 amendment to Rule 701 state:

Rule 701 has been amended to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing. Under the amendment, a witness’ testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Advisory Committee Notes to Fed. R. Evid. 701, 2000 Amendments.

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3 In addition, to the 13 Formula One exhibits identified in Mr. Myers’ testimony ( see Myers Direct Examination at 36:16-17), the Government has indicated that it will also proffer the following exhibits purportedly relating to Mr. Myers’ Formula One testimony: U.S. Ex. 92132, U.S. Ex. 92137, U.S. Ex. 93338, and JD-055387. See May 19, 2005 email from Gregg Schwind to Jonathan Redgrave, et al. (Ex. A). U.S. Ex. 92132 is a photograph of an Indy racing car used by the Government in its failed attempt to rehabilitate Mr. Myers on re-direct examination ( see Trial Tr. at 21741-21743), as discussed further below. U.S. Ex. 92137 is a May 5, 2005 issue of AutoSport magazine, which was also used by the Government on redirect. See Trial Tr. 21712-21717. U.S. Ex. 93338 was not used during Mr. Myers’ trial examination, but he testified at his deposition that he had not seen this exhibit, which is an excerpt from AutoWeek magazine, before it was shown to him by the Government in connection with his testimony in this case. See Myers Dep. Tr. at 283:10 - 284:12 (Ex. B). JD-055387 was used by defense counsel on

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On March 29, 2005, this Court spoke at length from the bench about the interplay between Rules 602, 701, and 702, and how they were to be interpreted in the context of this case.

The following portion of what the Court said is particularly relevant to the facts presented:

I am convinced that the case law from this Circuit and the case law from the many Circuits I have referred to, supports the conclusion that a fact witness may, under Rule 701, testify about facts with which she is personally familiar, such as events she has observed or participated in, as well as inferences, explanations, and opinions drawn from those facts. That’s particularly true when, as in this case, the fact witness’s testimony is directly related to information that she obtained in the course of her employment.

Now, the government has voiced some understandable concern that this ruling could unduly expand the scope of Rule 30(b)(6) because it might allow every such witness to provide lay opinions on a broad range of information about which the witness prepared himself in order to testify pursuant to his 30(b)(6) obligations. While there is some danger of that, I don’t deny that, it seems to me that the problem can be addressed on a case-by-case basis. Most of the witnesses with whom this evidentiary issue has arisen, I know there are some exceptions, but most of them have been, and I believe are scheduled to be, long time employees and/or top management who, in the course of their job related responsibilities, have been required to familiarize themselves with a broad range of company documents and it is that nexus that is extremely important. It may well be that a witness who has acquired his factual knowledge solely because of his Rule 30(b)(6) status, that the Court simply wouldn’t find his opinions or inferences, “helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue as required by Rule 701.”

Trial Tr. at 17022-17023 (emphasis added).

Mr. Myers’ testimony concerning Philip Morris International’s sponsorship of Formula One racing fails this test. While Mr. Myers claimed a degree of past familiarity with “auto racing sponsorship” generally (but not Formula One sponsorship specifically) based on the Campaign for Tobacco-Free Kids’ monitoring activities ( see id. at 21705),4 he also, by his own admission, went out and researched the facts relating to Philip Morris International’s sponsorship

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cross-examination of Mr. Myers concerning his Formula One testimony. See Trial Tr. at 21688. These exhibits should be excluded from evidence for the reasons set forth in this motion.

4 He also acknowledged, however, that the Campaign’s monitoring of attendance figures was “not on a rigid level.” Trial Tr. at 21705.

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of Formula One racing after the Government contacted him to testify in this case ( see id. at 21709-21713). This makes it impossible to determine to what extent Mr. Myers’ testimony concerning Formula One racing is based on his historical knowledge (however acquired) and to what extent it is based on his investigation conducted in connection with this case. Thus, his testimony in this area — which is rife with opinions such “[t]he Philip Morris Formula One sponsorship enables the companies to get the Marlboro brand in front of a worldwide audience, including an audience here in the United States” (Myers Direct Testimony at 36:7-9), and “the Marlboro Formula One racing team sponsorship is indistinguishable to the American viewer from the source of Philip Morris’s other brand name racing sponsorship, the Marlboro Indy Car sponsorship” ( id. at 36:10-12) — lacks the “extremely important” nexus to any job-related responsibilities that separates proper from improper lay opinion testimony. Stated differently, Mr. Myers’ assertions about the impact of Philip Morris International’s sponsorship of Formula One racing on American audiences are not opinions or inferences that are “rationally based on the perception of the witness” and “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue,” as required for lay opinion testimony must be under Rule 701. In effect, the Government has proffered undisclosed expert testimony through Mr. Myers, a fact witness, without attempting to meet the requirements of Fed. R. Evid. 702 for the admission of such expert testimony.

This is especially clear when it comes to Mr. Myers’ testimony regarding the 13 exhibits the Government designated as part of his Formula One testimony. When asked what these exhibits showed, Mr. Myers offered straight opinion testimony: “These exhibits demonstrate how the international Philip Morris Formula One sponsorship impacts audiences and viewers in the United States, particularly when the races are broadcast in the United States and when

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photographs of the Marlboro vehicles are printed in American magazines and newspapers.” Myers Direct Testimony at 36:21 - 37:2. Yet, on cross-examination, Mr. Myers admitted that he had only seen one of these 13 exhibits before they were shown to him by the Government in preparation for his testimony in this case. See Trial Tr. at 21696-21702.5 And when the Government sought to rehabilitate him on re-direct by showing him what purported to be a similar racing photograph from his files that he had provided to the Government (marked as U.S. Ex. 92132), Mr. Myers was forced to admit (following defense counsel’s objection) that the photograph in question was that of an Indy racing car, not that of a Formula One vehicle with which his testimony was concerned. See Trial Tr. at 21741-21743.

The reason that the Government designated Mr. Myers as a fact and not expert witness is obvious: Mr. Myers’ testimony concerning Formula One racing could never withstand scrutiny as expert opinion testimony under Rule 702. It is entirely impressionistic, not the result of scientific method or study, and stretches scant factual knowledge into broad overarching opinions to serve the Government’s purposes. For example, when pressed to admit that he had no data on the popularity of Formula One racing in this country on which to base his opinions, Mr. Myers acknowledged that he had no “specific data,” but volunteered that “I saw Formula 1 racing sitting home about two weeks ago . . . .” Trial Tr. at 21684-21685. If Mr. Myers’ Formula One testimony were allowed to stand, Joint Defendants theoretically could now present a fact witness in rebuttal who had recently been sent out to newsstands around the city and asked to review television schedules, and then brought back into court to opine that it was hard to find magazines and television programs on Formula One racing featuring the Marlboro trademark.

5 In Mr. Myers’ written direct examination, Mr. Myers and the Government sought to obscure this fact. Asked if he had “seen these documents before,” Mr. Myers answered simply, “Yes,” without revealing that he saw all but one for the first time when they were shown to him by the Government. Myers Direct Examination at 36:17- 19.

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Or Joint Defendants could present a fact witness to testify to the apparent truth, as set forth in the magazine articles that Mr. Myers was shown on cross-examination ( see Trial Tr. at 21678- 21684): Formula One racing has very little following in the United States. But such testimony would suffer from the same defect that is fatal to Mr. Myers’ Formula One testimony: It would be manufactured opinion testimony that was not “based upon sufficient facts or data” and “the product of reliable principles and methods” that have been applied “reliably to the facts of the case.” Fed. R. Evid. 702. As such, it does not “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id.; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Accordingly, such “back-door expert testimony” should not be permitted. See, e.g., Butera v. District of Columbia, 83 F. Supp. 2d 25, 35 (D.D.C. 1999), aff’d in part, rev’d in part on other grounds, 235 F.3d 637 (D.C. Cir. 2001).

In sum, as revealed by Mr. Myers’ cross-examination testimony, the Government’s attempt to introduce fact witness testimony from him concerning Philip Morris International’s sponsorship of Formula One racing must fail. The Government has elicited lay opinions on this topic from Mr. Myers that clearly are not based on information obtained during the course of his employment, but which was manufactured specifically to suit the Government’s needs in this case. As such, if Mr. Myers were to be permitted to offer such testimony, he should have been identified as an expert witness, and his testimony in this area subjected to scrutiny under Rule 702. As it is, it fails to comply with the requirements of Rules 602 and 701 as they have been interpreted and applied by this Court, and must be stricken. Likewise, the exhibits relating to this testimony should be excluded from evidence.

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IV.

Conclusion

For the foregoing reasons, Joint Defendants respectfully ask that their Motion to Strike the Formula One Testimony of Matthew L. Myers and Related Exhibits be granted.

DATED: May 25, 2005 Respectfully submitted,

/s/ Matthew A. Campbell for _________________

Timothy M. Broas (D.C. Bar No. 391145)

WINSTON & STRAWN LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

Telephone: (202) 282-5000

Fax: (202) 282-5100

Dan K. Webb

Thomas J. Frederick

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, Illinois 60601-9703

Telephone: (312) 558-5600

Fax: (312) 558-5700

Theodore V. Wells, Jr. (D.C. Bar No. 468934)

James L. Brochin (D.C. Bar No. 455456)

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Telephone: (212) 373-3000

Fax: (212) 757-3990

Attorneys for Defendants

Altria Group Inc. and Philip Morris USA Inc

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/s/ Matthew A. Campbell for _________________

Robert F. McDermott (D.C. Bar No. 261164)

Peter J. Biersteker (D.C. Bar No. 358108)

Jonathan M. Redgrave (D.C. Bar No. 474288)

JONES DAY

51 Louisiana Avenue, N. W.

Washington, D.C. 20001-2113

Telephone: (202) 879-3939

Fax: (202) 626-1700

Robert C. Weber

Paul G. Crist

JONES DAY

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114-1190

Telephone: (216) 586-3939

Fax: (216) 579-0212

Attorneys for Defendant

R. J. Reynolds Tobacco Company

/s/ Matthew A. Campbell for _________________

Kenneth N. Bass (D.C. Bar No. 386070)

KIRKLAND & ELLIS LLP

655 15th Street, N.W., Suite 1200

Washington, D.C. 20005

Telephone: (202) 879-5000

Fax: (202) 879-5200

David M. Bernick

Stephen R. Patton

KIRKLAND & ELLIS LLP

200 East Randolph Drive, Suite 5900

Chicago, Illinois 60601

Telephone: (312) 861-2000

Fax: (312) 861-2200

Attorneys for Defendant

Brown & Williamson Tobacco Holdings, Inc.

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/s/ Matthew A. Campbell for _________________

Edward C. Schmidt (D.C. Bar No. 199315)

Matthew D. Schwartz (D.C. Bar No. 436619)

THOMPSON COBURN LLP

1909 K Street, N.W.

Suite 600

Washington, D.C. 20006

Telephone: (202) 585-6900

Fax: (314) 552-7597

J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7597

Gene E. Voigts

Richard L. Gray

SHOOK, HARDY & BACON LLP

2555 Grand Blvd.

Kansas City, Missouri 64108-2613

Telephone: (816) 474-6550

Fax: (816) 421-2708

Attorneys for Defendant

Lorillard Tobacco Company

/s/ Matthew A. Campbell for _________________

David L. Wallace

Jessica L. Zellner

CHADBOURNE & PARKE LLP

30 Rockefeller Plaza, 34th Floor

New York, New York 10112-0219

Telephone: (212) 408-5100

Attorneys for Defendant

British American Tobacco (Investments)

Limited (f/k/a British-American Tobacco

Company Limited)
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/s/ Matthew A. Campbell for _________________

Steven Klugman

Steven S. Michaels

DEBEVOISE & PLIMPTON LLP

9 1 9 Third Avenue

New York, New York 10022

Telephone: (212) 909-6000

J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

Jason A. Wheeler

THOMPSON COBURN

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Attorneys for Defendant

The Council for Tobacco Research-U.S.A., Inc.

/s/ Matthew A. Campbell for _________________

James A. Goold

COVINGTON & BURLING

120 1 Pennsylvania Avenue, N. W.

Washington, D.C. 20004-2401

Telephone: (202) 662-6000

Attorneys for Defendant

The Tobacco Institute, Inc.

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