Insights into USA v. Philip Morris, et. al. from Sharon Eubanks

August 8, 2006 11:10 am by Gene Borio

As noted in a previous post, Sharon Eubanks made a surprise appearance as a guest on Dick Daynard’s remarkable panel at the World Conference on Tobacco or Health on Thursday, July 13. (She was scheduled, but did not appear on the WCTOH program, so news organizations missed it.) The panel featured legal powerhouses Madelyn Chaber, Guilherme Fernandes Neto (Brazil) and Daniel A. Webster (Canada). (Also showing up unexpectedly, this time in the audience, was Israeli lawyer Amos Hausner*, who provided some enlightening and mirthful questions — and answers.)

You can see pictures of the panel, and the reception afterwards, here: http://www.flickr.com/photos/geneb5/sets/72157594228883052/

The main thrust of Eubanks’ presentation was how to fight the tobacco lawyers, complete with examples from the DOJ trial.

The following notes are derived from her presentation, a lawyers’ reception afterwards, extensive email correspondence and, in the case of some factual material, contemporaneous news sources.

A LITTLE BACKGROUND

Eubanks, 50, joined the DOJ in 1983. By April of 1999, when she began working on USA v. Philip Morris, she was a career lawyer, a member of the Senior Executive Service, and had been handling complex commercial litigation since 1995. Eubanks and then-Tobacco Litigation Team Director J. Patrick Glynn were assigned to craft a complaint. They and a team of career lawyers–”the best and the brightest,” Eubanks said– pored over the states’ suits as well as masses of documents, concentrating on what might constitute a valid claim–with lots of spirited arguing among very intelligent lawyers. It was, Eubanks said, “an exciting time.”

The DOJ suit, then a medicare-recovery cum civil RICO suit, was charged with being a “political lawsuit,” filed by what many considered an anti-tobacco Clinton administration. In announcing the suit at a press conference Sept. 22, 1999, then-Attorney-General Janet Reno said,

“For the past 45 years, the companies that manufacture and sell tobacco have waged an intentional and coordinated campaign of fraud and deceit. It has been a campaign to preserve their enormous profits, whatever the cost in human lives, human suffering, and medical resources.”

Michael York, a partner in law firm Wehner & York, which represented Philip Morris Cos. said at the time, “How Janet Reno made it through that press conference with a straight face, I’ll never know.”

Eubanks, however, said Reno, was “very involved” in the suit, and was “a pleasure to work with.” (Eubanks has never met current AG Alberto Gonzales.)

When Glynn stepped down from in March, 2000, Eubanks was appointed TLT leader by acting assistant attorney general David Ogden, who supervised the DOJ’s civil division. Ogden said at the time, “Sharon has been a key leader [of the tobacco team]. Her leadership . . . has contributed enormously to this litigation.” Eubanks said that Ogden did firmly support the litigation. But Ogden, along with other Clinton appointees, left shortly after the Bush administration took office in Jan., 2001. By late summer, 2001, Robert McCallum took over as Assistant AG for Civil, and it was he to whom Eubanks then reported.**

THE LITTLE ENGINE THAT COULD

Eubanks told the WCTOH panel audience that despite the criticisms at the time, this was far from a political suit–the action, she affirmed, had a solid legal basis.

Eubanks described the DOJ effort as “The little engine that could.” She felt the trial had had significant victories along the way, not least of which was just plain keeping the case alive. One of those life-sustaining victories was surviving a Federal budget crisis. Observers at the time were almost sure that the Bush Administration would put the DOJ on a starvation budget woefully inadequate to battling the tobacco industry–or simply refuse to fund the effort. But the Tobacco Litigation Team–to the surprise of many– was re-funded.

Eubanks felt the administration had little confidence in the Tobacco Legal Team’s ability to prosecute the case. “They didn’t think we’d know what to do with [the money],” she said. They seemed to be saying, “‘Let them hang themselves.’”

On the trial itself, Eubanks knew nothing slipshod or off-track would get past Judge Kessler, and she constantly felt she to be at the top of her form in front of her. There certainly were times at the beginning when I could understand how she might feel on thin ice with this judge. When Eubanks was addressing the court, Judge Kessler would stare at her with, to me, an eyes-wide-open, semi-scary expression that seemed to say, “Look, I know you’re the smartest kid in the class, but you just mind you don’t overstep yourself!” And there were indeed times the DOJ drew forth Judge Kessler’s “I don’t know what the Government is thinking !” wrath. (For example, trying to impeach an adverse witness with the very testimony the DOJ had written for him. Ms Eubanks still avers that is a viable legal tactic, and I am sure it is, the witness had to sign off on the adverse testimony, but if it would seem easy for the witness to miss the full implications of an item, and it did seem petty at the time. There seemed much bigger fish already frying in the pan.)

And yet, by the end of the winter of 2005, you could tell the whole courtroom was moving like clockwork, everyone had gotten into a kind of zone, everyone seemed to have each other’s measure and acted accordingly, things seemed to proceed without serious missteps, battles were fought head-to-head but with no wild punches; and most of all, Judge Kessler was now habitually looking at Sharon Eubanks as she would at any of the tobacco lawyers–high (if unspoken) praise indeed!

When Judge Kessler commended all the lawyers at the end of the trial, and noted how tremendously some had grown, I felt she had Eubanks in mind, primarily. Perhaps, like a very smart boxer in the heat of the battle, Eubanks had expertly adapted her behavior to that of her opponent as well as to that of the referree.

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TIPS FOR THE BAR

Eubanks rounded out her panel presentation with some sober advice for lawyers going against the industry.

Expect “a pit-bull attitude”

It has been perfected. They are instructed to do whatever it takes. You CAN’T RELAX, sorry. Be prepared for novel calls throughout the trial. In the middle of your case, they are building a record for appeal. You can’t let your guard down. Appellate courts can do you in.

Anticipate. Prepare.

You need, she said, clear legal theories and concrete plans for defending them–BEFORE filing suit.

She recommended that attorneys prepare–ahead of time–legal memoranda addressing anticipated legal challenges, based on actions the tobacco companies have taken before. Such challenges, after all, are fairly easy to predict. Write them all out IN ADVANCE, and be ready. (Ms. Eubanks made it sound a bit too easy here, imho. Once you best the industry, they immediately go into a 200-lawyer huddle and collectively ponder, deconstruct, and develop strategies to meet those arguments the next time. Still, her point is well-taken that preparing for the most obvious ploys will save time in crunch periods.)

In fact, before the DOJ filed, a lot of preliminary work had been done. Minnesota document pioneer Roberta Walburn had been consulted (while Walburn has received some recognition for her work, Eubanks still feels she is not appreciated enough). DOJ had lawyers trying the cases, and a huge team of career lawyers had been called in to evaluate claims and “scrub” them.

Don’t rest on the Documents

Eubanks traced the few successes in modern tobacco litigation to the documents made public because of the 1994 Minnesota litigation, documents which showed the industry concealed information, misled smokers and aggressively went after the youth market. (Thanks go again go to the under-appreciated Hubert Humphrey III, who stuck to his guns against all attacks on this issue.)

“Minnesota forever altered the playing field,” she said. “BUT– just having the documents is not enough to win. Especially when faced by lawyers — hundreds of lawyers from hell.”

How many Defense lawyers were there? Eubanks said in an email that she she had referred several times in court to the Defense’s “300 lawyers.” That claim, pulled out of not-quite-thin-air, was never rebutted by the Defense. And I do remember one day Judge Kessler had reason to comment on the size of the Defense team, saying in effect, “Just when I think I have a pretty good appreciation for just how many lawyers, support staff and general resources the Defense has–I am ever astonished anew.”

The TLT, at its very largest, consisted of 38 attorneys.

HAVE A REAL DISCOVERY PLAN–both offensive and defensive.

Discovery will be the bane of your existence. You can’t rely on documents alone, you need witnesses to talk about the documents. In the case of industry witnesses, “you want to torture them on the stand.” But you have to know up front what they are going to say. She noted that some countries don’t get discovery–Great Britain, Australia.

And be ready for the “Stupid Lawyer Tricks,.” like discovery of things they don’t need, and can’t possibly use.

EXPERT WITNESSES

a. Assume NO common knowledge as fact. You need accomplished people in each field. Don’t take for granted something is a fact, and you don’t need expert testimony. The Industry routinely challenged even common knowledge. We prepared a team of experts even before we filed.

b. Use Daubert**** to challenge their witnesses. “Go for it,” she said, because most industry witnesses have credibility issues.

“Most of theirs don’t really have appropriate qualifications,” she said, “Make them look like the bought people they are. . . . Remember, the industry likes to make up areas of specialization, and arcane, sort-of-made-up fields of expertise.” (An example: DOJ accepted the Defense’s Dr. James J. Heckman as an expert in economics, but balked at his proffer as an “expert in the empirical analysis of human behavior.” By the end of his testimony, Defense had changed their proffer to “expert in the statistical analysis of human behavior,” which DOJ accepted.)

c. You need to spend a substantial amount of time with your expert witnesses–”and I mean substantial. I made it my business to know enough about that person to finish his sentences, and he mine. You need to know what they like to eat, and anything else, and that he is really prepped to take the stand. This is so you can relax, and his testimony is unrehearsed and direct, and comes off beautifully.”

She said her Experts would say to her, based on their bad prior experiences, “We want to make sure you’re not just going to throw us out there.”

“I saw it as my responsibility to make sure they were covered,” she said.

d. And get these people to teach you what they know–you become the expert too. And it’s fun.

She thought the world of David Kessler–so bright, and apparently with even more energy than she has. When they worked together, she had a kind of internal game; she wanted not to be the one who first quit work for the night, and she well remembers the session when he called it a night first–and she burst out in celebration.

ETHICS: BUILD THE CREDIBILITY RECORD

Be prepared for all the “lawyering” and, she said not-so-diplomatically, “the shading of truth in an extreme manner.”

Don’t underestimate the value of credibility in your case.

“And all the time, MAKE A RECORD. . . . Build the record every step of the way, in pretrial filings, motions to expose, etc. . . . Let the judge know with whom she is dealing. You can find published court opinions saying how fabulous some of these law firms are, so you have an uphill battle. You have got to educate the judge.”

In building that record, you can’t blow off their requests. You’ve got to respond to each of the motions that come in, even the most frivolous ones, even if you just reply with boilerplate. (The pioneering attorney Madelyn Chaber***, who was also on the WCTOH panel, said her tiny team just had to triage–”I had a box, and for every motion, I put it in the box; then we looked through it, prioritized, and forgot the rest.”)

“I’m not suggesting major satellite litigation on [sanctions] motions. You CANNOT challenge everything they do that’s wrong, because there is a LOT of it going on. You choose the best, the ones that are most egregious, most upsetting. . . .

“File a formal motion that documents their lapse of ethics and manage to get a court order that references it. We filed a number of motions that defendants are not to be trusted. You have to file, you have to let the judge know what’s going on. . . .

“We filed contempt motions [because ] they failed to respond [to a court order], and YIKES! Now they’re challenging the judge, saying we are going to do it our way anyway. These people blatantly . . . ignore the judge’s order. . . . And BATCo is the worst of the bunch.” She said in amazement, “I’d never seen a defendant get up and say, ‘You told us to do it, but guess what? We’re not going to do it.’ . . .

Eubanks clairified,

“BATCo was held in contempt for failure to produce docs ordered by the court; it was fined $25,000/day (until it totalled $1.4 million). BATCo, which was ordered to turn over certain Australian docs, claimed that it did not have possession, custody, or control over the docs and could not release them. (Court found that they did have possession-custody-control). BATCo further claimed that the docs may be privileged, and that BATAS owned them and should be allowed to protect any privileges it had. And so Judge K ultimately allowed BATAS to intervene to assert privilege; we were allowed to challenge the privilege claims. BATCo paid the entire fine of $1.4 million for this privilege. But wait, there’s more: BATCo also was fined $250,000 for failing to produce, as ordered, a knowledgeable 30(b)(6) witness. Remarkably, Bruce Scheffler stood before the Court and acknowledged BATCo’s intentional violation of the court’s order. (I still remember the look on the Judge’s face that day in trial–she so controlled herself). ”

“We got a $2.7 million spoliation order against Philip Morris,” Eubanks said at the presentation. “‘Oops!’ they said, ‘We destroyed some emails.’ We said, “‘WAIT!’”

Eubanks emphasized that when you have such sanctionable actions, you must coordinate, and be sure to tie the sanctions remedy to the misconduct–don’t just make it punitive.

“So we said, no, you should not allow the people involved [in destroying the emails] to testify at trial. And she [Judge Kessler] imposed a $2.7 million fine for spoliation of evidence. AND the court’s order precluded Philip Morris from having the document destructors testify.

“But tobacco doesn’t take no for an answer. THEY RE-RAISED THE ISSUE 3 TIMES. “Oh, can this person testify?” We had to re-fight the issue 3 times. “‘Can they testify with prior depositions?’ They’d just put a new title on their filing. ‘Oh, yeah, it was sanctionable, but we just had something else on our mind at the time.’”

Eubanks noted DOJ even had a disqualification motion–against a former DOJ lawyer. “Sometimes money gets to people,” she said.

TRUMPET “THE PARADE OF LIARS”

In its closing arguments, DOJ summed up all of this behavior up for the judge: “In our closing we spent 43 minutes just going through prior testimony at trial, and showing what the facts were. We tied them all to citations of record, statements made. We also used video tape from former depositions.”

They couldn’t put on pictures of the witnesses on the stand (cameras not allowed), but they could put up still shots of the witnesses from depositions, and say, “Here’s what they said, and here’s the truth.”

[When she started into this “Parade of Liars,” as some team members called it, people told her later that the Defense table was abuzz, whispering, “Stop her!,” Can’t you stop her?” etc. Although at least one Defense lawyer said later he rather enjoyed it.]

News accounts, and this reporter, didn’t do justice to this aspect of the closing.

Eubanks said she very much enjoyed refreshing the judge’s memory on these things, and relished Judge Kessler’s remark earlier in the trial about one witness, “You expect me to believe anything that Mr. Rupp said?” (Covington & Burling attorney John Rupp, of the Center for Indoor Air Research (CIAR) and the ETS Consultancy Group, had a great deal to do with the science-oriented battle against secondhand smoke. I well remember his earnest wail that, basically, “We tried–we couldn’t find any scientists who believed secondhand smoke was harmful.”)

DEMAND QUID PRO QUO

You need to take an attitude of quid pro quo. Your impulse may be, “Well, this lawyer needs more time, I’ll give it to her, and she’ll return the favor later.” No. GET WHILE YOU GIVE. And you’ve got to get it on the spot, insist that she won’t oppose your needing time next time. AND follow up, and get it in writing.

HAVE A SETTLEMENT STRATEGY

You need to have a Settlement strategy, she said. It’s this: Don’t stop litigating to settle.

“When do you stop litigating and think settlement?

“NEVER.

“You need to continue to litigate in order to settle. The moment you stay your trial, they bring in a new settlement team, and you start all over again. Meanwhile, you are not putting on that really hot testimony. Have a strategy and an approach to it. Then go ahead, but DON’T STOP TRIAL.”

**———————————————————

ON THE TOBACCO LAWYERS

Of all the tobacco lawyers–and there were far more than the 20 or so who normally took their places at the attorney tables–there was only one –just one–who she felt treated her as a fellow human being. . . .

At the other end, she did not have kind words for B&W’s David Bernick. We’ll leave it at that. . .

**———————————————————

THE McCALLUM REMEDY

[NB: Eubanks is not and cannot be involved in the CREW/McCallum action.]

Eubanks told the panel audience, “Days before closing arguments, we were directed — we were TOLD, actually–to seek far less in remedies than we had been prepared to argue for.”

At Dick Daynard’s reception afterwards, she asked me if I’d noted her demeanor when the radically diminished award request was announced in court, “You’ll notice I didn’t raise my head, my head was down the whole time, I was reading the whole thing.” I was ashamed to say I hadn’t noticed that–but neither had any other reporter (we may have been too dumbstruck by Steven Brody’s introduction of the idea earlier–the day before, I believe); I wonder if the ever-perspicacious Judge Kessler did . . .

During the apparently ferocious backstage battles over remedies, she said that arguments were heated between the politicals and the TLT members. McCallum did not maintain his calm, and much of this was unfairly directed at Brody. I told her I’d never pictured McCallum as fierce–my estimation of him had been shaped by how badly his hands were shaking when he was defending the lowered request to reporters in the gallery of Courtroom #19. I’d even felt a bit sorry for him(!) (The Sydney Morning Herald on July 27, 2006 seemed to confirm a pattern to Mr. McCallum’s demeanor before the press:

ROBERT McCALLUM, fielding questions for the first time about the US-Australia relationship is wary, formal and a little nervous.

He sits in a small, nondescript room in the State Department, his hands clasped together in front of him . . . .

)

The war did rage, however, and finally Eubanks said to McCallum: “Give me the thing and I’ll read it.” She told Mr. Brody, “You intro it. I’ll read it.” And so she did–without once lifting her head from the text.

McCallum has been cleared of influencing the remedies request for political reasons by the DOJ’s Office of Professional Responsibility. A July 1 letter to him stated:

“[Y]our actions in seeking and directing changes in the remedies sought were not influenced by any political considerations.”

See: http://www.tobacco-on-trial.com/archives/2006/07/27/crew-v-doj-on-mccallum-documents-foia-delay

One final note: Ms. Eubanks indicated that Robert McDermott–RJR’s lead counsel in the trial–and McCallum were acquaintances long before McCallum came to the DOJ.

**———————————————————

THE KIDS IN THE HALL OF JUSTICE

And here she was for 6 years, not only shepharding to completion one of the most complex trials in US history, not only battling every assault from the hordes of tobacco lawyers, the administration and who know what else–but raising 3 girls at the same time(!) (The oldest is 17, the twins are 14.) She had to have been forced to make some heartbreaking choices. I well remember Judge Kessler’s rueful words on all the lawyers’ workload: “Let’s not kid ourselves that no one’s working weekends here”

In fact, many significant members of the TLT were raising children–by a very rough count, there were at least 15 non-grown children. Ms. Eubanks said they became a fairly close group, and continue to get together today.

WE FEW, WE HAPPY FEW . . .

This article clearly doesn’t go deeply enough into Ms. Eubanks’ feeling for her fellow lawyers and staff on the TLT. She expressed more than once her great respect for their work, and for them as people. This article by an admitted fan may well place too strong an emphasis on her role, to the exclusion of theirs.

**———————————————————

So who’s been beating down her door to hire this powerhouse? Well, Ms. Eubanks’ path obviously isn’t the $1,000/hour corporate attorney route.

She now works with Citizens for Responsiibility and Ethics in Washington–the very organization that in Dec. sued the DOJ over the cessation program issue, and questioned Mr. McCallum on the matter last Tuesday, July 18. She said she is not and will not be involved in that case. However, “I enjoy the work of CREW; public interest is a good place for me, and that’s what CREW does.”

Stan Glantz called her shortly after she left the DOJ, and she accepted an unpaid position as a member of the Advisory Committe at the UCSF Center for Tobacco Control and Education.

**———————————————————

THE SOLES OF A NEW REGIME

Bur really, what did carried Sharon Eubanks through the 6 years of the case?

“I bought shoes whenever I could, because with the right shoes, you can do anything. Actually.”

Other Carrie Bradshaw addicts may see an example of Ms. Eubanks shoes, here on the last day of trial in June, 2005, at: http://flickr.com/photos/geneb5/197310876/

**———————————————————

It was fascinating meeting her outside the courtroom, to see the full-blown human warmth she was only partially able to subsume during the trial. As Yoda might say, “The Limbic Cortex is strong in you, Sharon.” In fact, even at her smartest, toughest, and most aggressive in the trial, I found myself fitting her into a domestic analogy. Wow, I thought at one point listening to the sharpness, clarity and ferocity of her argumentation, I sure wouldn’t like to argue with her about whose turn it is to take out the trash.

**———————————————————

ENDQUOTES

Eubanks reminded the panel audience of Martin Luther King’s quote, “Never forget that all Hitler did in Germany was legal.” No matter how bad the facts are, what’s important is what can be determined as legal.

She also shared with me a Churchill quote that she said she often found occasion to use with both her children and the TLT: “Never, ever give up.”

And one final quote from WCTOH, this time provided by the remarkable Dr. Dileep G. Bal, who for 2 decades headed the Cancer Control Branch of California’s Dept. of Health Services and now works with the Hawaii State Health Department. I shared with Eubanks this quote from the great Indian poet Rabindranath Tagore. She enjoyed it also. I can very well see why:

I slept, and dreamed that life was joy.

I awoke, and saw that life was duty.

I acted, and behold,

Duty was joy.

**———————————————————

NOTES:

* Mr. Hausner’s appeal in the Shemesh v. Fucachetta case won a significant ruling this June. The Israeli High Court ruled that countries that ratified the FCTC have recognized the harmfulness of secondhand smoke, and thereby have assumed responsibility for the protection of their inhabitants from exposure.

**McCallum later became Associate AG, essentially switching jobs with Peter Kiesler, who is now Assistant AG for Civil. Kiesler signs many of the tobacco case filings, along with Steven Brody.

***Chaber is the remarkable attorney who won a) Henley, resulting in the first punitive damages ever paid to an individual smoker, and b) Whiteley, whose $12M judgement was reversed and remanded for a new trial in 2004.

**** The Daubert ruling set the basic rules determining whether a witness can truly be accespted by the court as an “expert.”

One Response to “Insights into USA v. Philip Morris, et. al. from Sharon Eubanks”

  1. Mark Kind Says:

    This is a fine piece of reporting. It’s very interesting to read the insights of a lawyer in the middle of this battle.

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