Back to Massachusetts STIC LibraryCOMMONWEALTH OF MASSACHUSETTS
MIDDLESEX SS. SUPERIOR COURT
CIVIL ACTION
NO. 95-7378
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COMMONWEALTH OF MASSACHUSETTS, *
Plaintiff *
*
vs. *
*
PHILIP MORRIS INCORPORATED, R.J. *
REYNOLDS TOBACCO COMPANY, BROWN & *
WILLIAMSON TOBACCO CORPORATION, *
B.A.T. INDUSTRIES P.L.C., LORILLARD *
TOBACCO COMPANY, NEW ENGLAND *
WHOLESALE TOBACCO CO., INC., *
ALBERT H. NOTINI & SONS, INC., THE *
COUNCIL FOR TOBACCO RESEARCH-U.S.A., *
INC., and THE TOBACCO INSTITUTE, INC. *
Defendants *
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BEFORE: SOSMAN, J.
Thursday
July 16, 1998
Cambridge, Massachusetts
Patricia Bellusci
Official Court Reporter
APPEARANCES:
GEORGE K. WEBER and THOMAS SOBOL, Assistant Attorneys
General for the Commonwealth
MARSHALL SIMONDS, THOMAS GRIFFIN and PAUL E. NEMSER, ESQS.,
for Philip Morris
PETER J. BIERSTEKER and THEODORE M. GROSSMAN, ESQS.,
for R.J. Reynolds
Thursday
July 16, 1998
Cambridge, Massachusetts
(10:07 a.m.)
THE CLERK: May I call the case, your
Honor?
THE COURT: Please.
THE CLERK: Docket number 95-7378,
Commonwealth of Massachusetts versus Philip
Morris, Inc., et. als. The Honorable Martha
Sosman presiding.
Will counsel please identify themselves
for the record?
MR. GRIFFIN: Thomas Griffin, counsel for
Philip Morris and liaison counsel for the
defendants.
MR. SIMONDS: Marshall Simonds, counsel
for Philip Morris. And I'd like to introduce two
new counsel, Ted Grossman from Jones, Day,
counsel for RJR; and Peter Biersteker, also from
Jones, Day, Washington Office, counsel for RJR.
MR. NEMSER: Paul Nemser, counsel for
Philip Morris.
MR. WEBER: George Weber, Assistant
Attorney General.
MR. SOBOL: Thomas Sobol, Special
Assistant Attorney General.
THE COURT: The first item on the agenda
is an update with regard to the Commonwealth's
damages model. I've received some materials from
the defendants, and then the Commonwealth's
position. I have not yet been able to get through
all of the various attachments and exhibits, but
at least the subject matter of what's in the
Commonwealth's status report, the narrative
portion, I have had a chance to review.
Where do we start?
MR. SIMONDS: If you'd like, the
defendants will begin, your Honor?
THE COURT: Certainly.
MR. SIMONDS: We have furnished the
Court with two abbreviated pieces of material,
abbreviated in part because of time constraints,
and in part because of the fact that we were
trying to provide information to the Court that
was responsive to models that were being
delivered even as we were trying to analyze them.
I want to begin with the very simplest
differences that I think are not in dispute. And
I assume the Court has read the transcript pages
which provide the background and the context --
THE COURT: I've read them or I
remembered them. Your description of them was
consistent, quite frankly, with my own
recollection of that.
MR. SIMONDS: I'm confident it was. And
I don't plan to spend time on telling the Court
what the Court is already familiar with.
I do want to mention first off, that
prior to that argument which I happened to
initiate at the hearing in early November, we had
in fact, and during the lengthy period of
collecting documents, made the issue of the model
and their damage calculations, an early demand.
As early as February of '97, we had requested
information in a document requests.
In June of '97, when we were trying to
prioritize the documents that were critical, we
made the request again. And I think as you know,
through the fall, when we were coming to the CMO
issues and the schedule, we again were saying the
timing of our discovery and the adequacy of the
time for our discovery means that it's critically
important that we get this information about the
model and have it for an adequate time.
So that I think that there is no
surprise involved for the Court or for any party
in discovering that when we are confronted with
what we have today, what we think is grossly
inadequate time, we believe it has a very
important adverse affect on our ability to defend
ourselves.
Now, having said that, let me make
several obvious comments. One is, the report that
was filed was filed by six academic figures
associated with Harvard or Cambridge-based
organizations, called the Cambridge Team, none of
whom have been involved in any of the tobacco
litigation around the country that I'm aware of.
We have had three of those people, Dr.
Epstein, Dr. Cutler, I believe, and Dr. Newhouse,
identified as experts who will testify. None of
those people have been deposed, examined,
reviewed or evaluated in any of the other
litigation. We have submitted an affidavit by the
economatrician mathematician, who will be our
principal expert and advisor, William Wecker.
We have asked Dr. Wecker, in the limited
time he had available, to focus not on what he
thinks about their model in a substantive way,
but what the time problems are for the analysis
of the model. And his evaluation is set forth in
the affidavit, which I have to say,
unfortunately, is not yet signed but we will
provide a signature page, and I so represent to
you. We had to deal with Dr. Wecker on a boat off
the coast of Alaska in order to get this
affidavit reviewed, and that's why it was so late
reaching the Court.
However, the points that Dr. Wecker made
are in the affidavit, and we can go through them,
and perhaps it's useful to go through them and
emphasize them.
THE COURT: Well, I've reviewed his
affidavit, and there are a couple of things that
are not in that affidavit that I should perhaps
just ask you directly about.
How much -- I mean, he talks about how
many man-hours he had to use between himself and
his staff working on these issues in other cases.
But he does not translate that into how many
weeks, months, years that amounted to in those
cases. Nor does he give me an estimate of how
long it will take him on this case, he thinks.
I mean, five thousand man-hours is a
meaningless figure until you know how many people
that five thousand hours is being spent by. If
it's one person, that's a lot. If it's a 150
people in his office, that's another. I have no
idea what five thousand hours means in his world.
MR. SIMONDS: Let me try a preliminary
answer to that. And that answer is that at least
at the time we tried to obtain this affidavit, we
could not get an adequate answer to that question
for the reason that Dr. Wecker has not yet
received, nor have we received, the software
programs which permit him to understand the
methodology to identify the steps that he must go
through in replicating the calculations. We
haven't got that yet.
In, for example, Oklahoma, which happens
to be a Ness, Motley state as well, the expert
there, a man named Harrison, provided basically a
table of contents and a memorandum that said,
Here are the working tools I used to sort the
data and input it and make the evaluations.
They included sensitivity analyses. They
included a discussion of methodology. We don't
have that. We have asked for it. We expect we
will get it, but we don't have it yet.
Without looking at that at this stage,
there's inadequate knowledge on the part of Dr.
Wecker to give an accurate answer.
THE COURT: Can you answer the
historical question? When he refers to having
spent six thousand hours analyzing the data on
one of these cases, and another five thousand
hours on another, what did that translate into?
MR. SIMONDS: Let me give one more
answer, and see if it can be more specific.
The plaintiff's experts, by their own
statement, worked from early March to --
THE COURT: I want to know what Dr.
Wecker means when he says it takes five thousand
man-hours to review it?
MR. SIMONDS: Dr. Wecker's advise to us,
estimated, is that it will take him at least as
long as it took the plaintiffs. And the reason
for that is that he not only has to duplicate,
replicate, evaluate their work, but also develop
his own alternative and critique; in fact,
develop what amounts to a different model in
order to prepare a report that lets us join issue
on this critical aspect of the case.
THE COURT: All right. How much time did
he spend on the other cases?
MR. BIERSTEKER: I may be able to
respond to that, your Honor.
Peter Biersteker from Jones, Day. I've
worked with Dr. Wecker in a number of
jurisdictions. I can tell you he's got
approximately ten professionals in his office.
It's not 150 people.
In Mississippi and in Texas, Mississippi
I know for certain, I think we had a period of
about four or five months from the time we got
the disclosures by the plaintiff until we had to
submit our own expert reports and make our
experts available for deposition.
The time period in which we had to
respond in Minnesota was shorter than that. We
had approximately two months from the time we got
the final complete disclosures from the plaintiff
until the defense experts had to respond.
However, the Minnesota model that was presented
in that case used the same data set and was very
similar to, in some respects, the models that
were employed in Mississippi and in Texas. And
so, we were able to respond more quickly in that
event. But it still was five thousand hours in
order to do the Minnesota work.
We managed to do it in two months. We
were very lucky we were able to finish it. We had
longer in Mississippi. And I think it will take
at least as much time here if not more because of
the very significant differences in what the
model presents here compared to what it presented
in the other cases.
THE COURT: Anything further?
MR. SIMONDS: Would it assist the Court
if I went through the differences that are
identified in Dr. Wecker's affidavit? Or have
you already absorbed that?
THE COURT: Well, I've reviewed them,
but I have also reviewed the Commonwealth's
version that these differences are not
differences that are new. The Commonwealth says
some of them are differences because people like
Dr. Wecker in other cases have told us you should
be using this survey instead of that survey. In
other words, they're saying, to the extent that
we've done things that are different, we've done
things that have already been thought about,
looked into, talked about, and in some instances
recommended by the defendants themselves, that's
not novel. It seems to me it's a product of your
own expert's prior critique that they say they
are now taking into account.
MR. SIMONDS: The representations on the
plaintiffs was that they expected to use
substantially the same experts and the same model
with a tweaking for Massachusetts.
At the time they made that
representation, there was available to them
knowledge of the critiques that had been made. So
they were aware that they had been critiqued.
Those critiques which they relate to provide
their excuse for changing the model.
I'm not here to quarrel with you that
they weren't entitled to go to a different model
if they wanted to. They are permitted to try
their case in the way they believe most effective
and that's not the ground for our complaint.
Our complaint is that they made a
conscious choice to change the model in ways that
extended the time that we needed to respond, very
substantially. They made that decision months
ago.
You may recall that my partner, Mr.
Parsigian, was arguing on the issue of recipient
discovery, referring to the 1987 NMES database.
That was within, I think, less than a month, but
maybe a little more than a month ago, in this
court. Not a word from the plaintiffs that NMES
was no longer a part of this case. They weren't
going with that model.
They made the decision to change. They
spent a long time preparing it. They had to delay
a month getting information in. They haven't yet
gotten the information to us that we need, the
critical information to understand what their
experts did. And they rebut it by saying, well,
we criticized their earlier model.
It is true that there were some
criticisms. What is not true is that those
criticisms were based on a review and evaluation
of the data their experts are relying on. Dr.
Wecker has not gone through, for example, NHIS.
THE COURT: But to the extent that what
the Commonwealth's experts are doing is
essentially following up on a suggestion made by
the defendants themselves, that it is at least a
suggestion that the defendants and the
defendants' experts have thought about, are
familiar with, maybe haven't nailed it down in
every final precise calculation and thought, but
they're the ones who have come up with the idea
that, Gee, maybe you should take into account
this additional factor.
MR. SIMONDS: Your Honor, let me
interrupt you --
THE COURT: There's novelty in the sense
of an approach, a concept, a database that no
one's ever thought of or come up with before as
opposed to, we haven't seen this precise thing
actually done, but we have thought through, at
least conceptually, what might be involved
before, and it's a database that at least we are
familiar with, even if we haven't actually
cranked numbers through it before, there's a big
difference.
MR. SIMONDS: Let me make a response to
that at two levels. First off, my quick reading
of the filing which we got at the end of the day
yesterday from the Commonwealth is that there was
an attorney's rebuttal that asserts that we had
certain information and used certain information
and so forth. I believe that information is, in
material ways, very incorrect.
But secondly, even assuming that in a
critique of an earlier model in another state
alternative data sources were pointed to, that
did not involve any expert, Dr. Wecker or anyone
else, in taking that data, anticipating how an
opposing witness might use it, extracting the
data, evaluating it and studying it.
What happens when you get a model like
this is that you have to understand what
assumptions, what data extraction process, what
use of particular data, what weighing of data was
done by the expert. You have to understand how
they did it. That requires that you replicate it.
What you replicate is what they did; not
what you might have speculated about or looked at
before. And we have never - Dr. Wecker has never
used a substantial number of the databases that
are involved in this four-part model.
It is brand-new information. He doesn't
have the databases. He has not studied them. The
fact that he critiqued somebody for not
considering an alternative database should not be
read by the Court as a decision that we have
evaluated it and we've been laying in wait to use
it.
You can't do that in this econometric
model. You have to wait for the model to come out
so you can understand what it is they're going to
use; how they're going to use it; how they're
going to weight it and what they're going to do
with it. That in part is why it took so long,
even though we were going with the same basic
model, when you move from Mississippi and Texas
to Minnesota.
This is a very complicated business and
it is critical to the trial of this case. It is
not something that we can do within this time
limit because we ought to be familiar with it, or
we knew the databases were out there, or somebody
took a peek at one. We have not done that study.
We have to do that study and we have to replicate
their model before we can understand what the
challenge is; what we're attacking. The earlier
criticisms did not permit that.
THE COURT: Let me ask you what your
bottom line is looking at the case management
order itself, what changes in any of these dates
are you now asking for based on this, what you
say is his problem?
MR. BIERSTEKER: Your Honor, if I might
just add a little bit. Peter Biersteker again.
The state is partially correct when they
say that what they appear to have done responds
in part to the criticisms that defendants have
had elsewhere. For example, in none of the prior
models was exercise a factor that was taken into
account in trying to determine what portion of
the health care expenditures made by the state
were due to smoking as opposed to something else
that people did.
And the state's model here does take
exercise into account. But the defendants never
recommended that the state use the National
Health Interview Survey, a database that we have
not used in econometric modeling in the past.
The defendants did not suggest that the
state use the National Nursing Home Survey, which
we had never even heard about before, when they
try to do their model for nursing homes.
The defendants did not suggest to the
state that they use the National Maternal Infant
and Health Survey, which we had never heard about
until the state submitted its report in this
case. Those were not suggestions we made.
The defendants did not suggest that the
State of Massachusetts, or any other state,
compare utilization rates: how many times
somebody went to the doctor, how many times they
went to the hospital, and how long they stayed
when they went as opposed to how much money they
spent.
All the prior analyses that were done
with these econometric models focused on the
dollars spent as opposed to the utilization made.
I think that change that the State of
Massachusetts made is an affirmatively bad change
and it's not one that the defendants suggested.
So in answer to your question, it seems
to me that in substantial part, this model is the
creation of the plaintiff's own experts and not
done in response to criticisms that the
defendants had anticipated, that the defendants
had earlier articulated, or were made at the
suggestion of defendants and that the defendants
are --
THE COURT: I understand. There are very
differing views about this. But I'm looking at
page 6 and 7 of the case management order. What
changes to which of these dates are you asking
for based on this situation?
MR. BIERSTEKER: Well, your Honor, for
two reasons, I think that I would like to extend
the date on which defendants have to make their
disclosures under the case management order with
respect to the model, and that's the only date
that I would propose that we change.
THE COURT: Okay. And what are you
saying you need to change that to?
MR. BIERSTEKER: I would like three
months, your Honor, or more, from the time that
the State of Massachusetts delivers to the
defendants all of the information that we need in
order to do our work. That still hasn't happened.
We still don't have the computer codes and
formulas that they used. We still don't have all
the data. We're still missing information. A lot
of material has come over the transom over the
last couple of days, but we still don't have it
all.
Now, from the time that we get it all, I
would ask that we get three months. And I don't
know when the State intends to deliver all of it.
My understanding is that they hope to do so very
shortly. But from that time, we should have, at a
minimum, three months in order to present the
reports from the defense experts on the model
issues. That's what we need.
THE COURT: All right. Let me hear from
the Commonwealth.
MR. SOBOL: Good morning, your Honor.
I'd like to make one particular point
which I think is illustrative of the balance of
the argument. I do want to go a little bit into
what it is that our experts actually did so that
you can understand that it's building upon
reactions from prior critiques in other cases.
But going to the heart of the matter,
which is, how much time do the defendants really
need, and what have been their responses to you
on that particular question here today?
Mr. Biersteker reported to you that it
only took the same gentleman, Mr. Wecker, with
his staff, two months to deal with the Minnesota
report. And his indication to you here today
was, though, that was possible because the
Minnesota report was very similar to what had
gone on before, which is why they were able to
deal with it in two months.
That's not, however, what Mr. Wecker has
testified to in his affidavit. Because in his
affidavit, what he says at paragraph six, third
line from the bottom, was that the "Minnesota
statistical models and data analyses were
substantially different from the models presented
in Mississippi and in Texas."
So it seems to me that the expert is
saying that I was confronted by something
substantially different, but was able,
nevertheless, to get this accomplished within,
according to Mr. Biersteker, a two-month period;
Mr. Biersteker trying to accomplish something
different with you, indicates however, no,
Minnesota was really, in his words, very similar
to what had gone on before. So I think they don't
necessarily say the same thing, depending upon
what result they obviously want to be able to
accomplish.
The points raised by Mr. Simonds are
essentially these. First, that they had tried to
raise the issue of the damages model and issues
at an early point in time, and that's true. They
did raise the issue of receiving discovery last
year, and in fact they got it. They got a huge
amount of MMIS data tapes late last summer.
But what's remarkable is that apparently
they didn't do anything with that with Mr. Wecker
from that period of time all the way until today
because Mr. Wecker has testified under oath in
his affidavit that he's not familiar with the
MMIS; that he hasn't dealt with it. So you have
to wonder, well, you know, what was he doing in
that period of time? Was there any real effort
by the defendants on their own part to gear-up;
to have Mr. Wecker and his staff ready, come the
summer of 1998, for Massachusetts, so that they
could deal with the time frame constraints of the
CMO. It does not appear that that's the case;
that Mr. Wecker is sitting around waiting in
earnest to get going.
Another point raised by Mr. Simonds was
in fact that for the past month since they've had
the methods report, until even today, Mr. Wecker
hasn't been asked to start the work of doing the
job of analyzing this. Instead, what he has been
asked to do is deal with the time problem. In
other words, help them prepare for delay; not
help them prepare the case.
In addition, your Honor, there is --
it's important to point out this. The defendants
have received everything from the Cambridge team,
including not only their analyses, which is why I
apologize that I had to burden your Honor with
the fairly voluminous submission, but obviously
it's important in deliberating on this issue to
know what they have gotten, at least in terms of
the summary reports, which I've provided you.
But in addition to that, all of the data
sets that they have relied upon have been
provided to the defendants. The analyses appear
as appendices and that kind of thing, so that it
would enable Mr. Wecker and his staff to be able
to respond to the Cambridge team's work.
There is some work ahead. There is some
level of intelligence, understanding expertise,
that we have assumed that the defendants' experts
have. So, for instance, we assume that if we send
them something like -- and this is an analogy --
an ASCII disc that has some information on it,
that they have their own software program, like
Microsoft Word, or WordPerfect, or something like
that, to run it.
Well, economatricians, day in and day
out, deal with databases. They're confronted with
the database. In order to run a regression, they
pick up their regression software and they run
their regression software.
Now, it would be a little bit silly to
think that Mr. Wecker and his staff aren't
capable of running regressions, or they need to
be given the software of the Cambridge team in
order to be able to do that, and they need to be
taught how to type in the letter T, and the
letter H, and the letter E to be able to
replicate what it is that the Cambridge team did.
That's essentially what they ask when you talk
about economatricians facing that kind of
activity.
The data sets, too, are not from Pluto.
These are data sets that are very familiar to
health care economics, the NHIS. It's been around
for many many years. It's one of the most common
used data sets. Anyone who is involved in the
area of health care economics, knows of it, hears
of it, deals with it. And in fact, contrary to
repeated representations to you here today, Mr.
Wecker himself has testified under oath, in State
Attorney General tobacco litigation, that he has
received the NHIS data set, and he has listed the
NHIS data set as one of the bases upon which he
has critiqued other state tobacco experts.
The backup to that is not in the
materials that have been filed before you.
However, if your Honor wishes, I can provide the
affidavits or the photocopies of the transcript
of the deposition pages in which Mr. Wecker
discloses that plain fact.
That is not novel of course, my
indicating that Mr. Wecker is familiar with the
NHIS. It shouldn't come to anybody's surprise. He
has been working on at least six State Attorney
General tobacco litigations, and was previously
involved working for the tobacco industry, and
he's going to be an expert in the area of health
care economics, of course he's familiar with it.
He couldn't help but be.
The issue regarding the defendants need
to wait. Essentially they haven't needed to wait.
They, the defendants, repeatedly have insisted
for the past year, on the front-loading of
information from the Commonwealth. And if we look
at the three particular areas where information
gets crunched here, you'll see that the
Commonwealth has done everything it can to make
whatever the defendants wanted available,
available.
First, there can be no question that
anybody is quibbling about the defendants ability
to respond to prevalence, smoking prevalence: how
many people smoke in Massachusetts. Those data
sets are all well-recognized. There can't be any
mystery. There's no mysteries in any of these
reports. And then we have to figure out how many
people have smoked, and historically, how many
people have smoked. There's no issue there. There
should be no big issue.
And even if, by the way, the defendants
were starting from square one today, I think your
Honor, if you looked at the tables that are set
forth in the Cambridge team report, it is
immediately and intuitively obvious how it is
that the numbers get arrived at, and how any
person performing math would reach those numbers.
So the issue of prevalence is not a matter.
Second, the issue of expenditures, how
much money has the state, through the Medicaid
system, spent. Well, that has occurred in three -- excuse me, two basic areas: the electronic data
tapes that have been provided to the defendants
many many months ago; and in the form of HCFA-64
or other HCFA information which has been provided
in hard copy long before, or at least before the
filing of these reports. So the expenditure
information is available.
And then the third area is, how it is
that one derives, SAFs, smoking-attributable
fractions, from a variety of different data sets.
And their data sets, again, the one relied on
here by the Cambridge team on the inclusive
approach, is the NHIS, of which they are
familiar. It is essentially another data set that
an economatrician would look at and say, All
right, what do I have to spread along my X
column. How many, you know, people, do I have
along my Y column in order to establish my matrix
and to be able to plug in and run my regressions.
And in order to replicate it, that's
what any economatrician would do, is they would
set up their spreadsheet and they would run
similar kinds of regressions to see if they could
replicate the numbers.
The SAFs on the disease-specific
approach are, what are the smoking attributable
fractions for, for instance, lung cancer, how
many lung cancer diseases we'd want to attribute
to cigarette smoking. Well, that's straight out
of the Surgeon General's Report. There's no
mysteries there being given either.
Now, there are ways to quibble around
the edges. For instance, in each one of the
states that economists have approached this
issue, there are areas where the data ends up
having to be either state-specific or dealt with
anew. For instance, the area of low-birth-weight
babies.
Well, in the Massachusetts model
ultimately the Cambridge team's very conservative
approach, which essentially follows the same
disease specific approach, comes with such a very
conservative number of about $20 million, that
it's only one percent of the total dollar number
that we're talking about here. So that really
would fall in the area of tweaking, trying to
figure out a number that would be associated with
low-birth-weight babies, and essentially
following the disease-specific approach.
So essentially, to make a long story
short, from the Commonwealth's point of view, the
defendants' experts approach the project that is
in front of them in the following posture.
They have experts who, according to his
own testimony, for at least three of the states,
he and his team have already spent 11,000 hours
studying Medicaid damage expert opinion testimony
in State Attorney General tobacco litigation.
That's to the exclusion of any of the other time
and effort Mr. Wecker has spent in his career
being an economatrician, or working for the
tobacco industry, either outside of the
litigation context, or inside of one. So they
start essentially having gone around the track
three-quarters in terms of what they need to
know.
What else do they start with? They start
with the fact that they've had the Medicaid
Claims Paid data tapes for ten months. They start
with the notion that they are able to, and have,
weighed one way or the other, as a utilization as
opposed to an expenditure based SAF, good or bad,
what are the general theories there. What are the
general strengths and weakness of the NHIS
database as opposed to the NMES database. What
are their strengths and weaknesses on a
theoretical basis as to any database that people
have used that's essentially known and fairly
easy to address.
So what's the real work then that they
have in front of them? Well, on the inclusive
approach, they're probably going to want to
replicate what was done, so they take the data
that's been provided to them; they run a
regression to be able to see if they can mimic
the results, and then they're going to want to
spend four, five weeks, poking it and pulling it
to see if there are ways, according to their own,
of doing a sensitivity analysis to be able to
point out anomalies, trying to find out if there
were three or four bike accidents that were
within a certain grouping, that kind of thing.
Their real work of what they want to do
is just to find the anomalies on that side. And
what do they have in front of them on the
disease-specific approach?
Well, again, if they really feel
constrained to replicate what the Cambridge team
did, then what they will do is want to run
through the MMIS data tapes, not the 15 years
that our experts did, but the five most recent
years because we're dealing with a time period
substantially smaller than what we did before.
And they'll have to run that through.
That's why ultimately the Commonwealth,
when we come before you today, we try to have a
balanced position. On the one hand we recognize
that we've already asked the indulgence of this
court for some additional time to make sure that
the data crunching that was undertaken by this
group, who is new to tobacco litigation, but was
able to accomplish the task of understanding
everything out there, and then coming up with
their responses to the defendants concerns. And
undertaking all the work in four and half months,
being brand new, that would -- our position is
that while we should recognize that there should
be some extension, because we took three and a
half weeks, or almost four weeks longer to get
the file report in, that any further additional
time, if it's to be granted, should be granted
not for any of the reasons that have been given
to you here today.
If there are other reasons that we
haven't been given: Mr. Wecker is too busy
representing so many different states that his
staff is too, you know, inundated with time, or
that the professionals simply just need more time
to be able to deal with this for any variety of
personal or other legitimate concerns, then that
would be a different matter.
The Commonwealth's position is simply
that a reasonable similar time to the defendants
essentially running the same two months from the
time that we gave them the last report, which was
July 11th, is appropriate, but for the reasons
stated, no additional time is necessary because
this is exactly what the parties anticipated.
THE COURT: What is your response? What
items do you think, if any, the Commonwealth
still needs to turn over?
MR. SOBOL: I don't think that there is
anything that needs to be turned over. I need to
check with my associate regarding one particular
small database that I believe has been provided
to the defendants. If it hasn't been provided to
the defendants, it's a matter of a day or two.
I also don't know, because I haven't had
time to check, whether this is a database, which
I highly believe it is likely, that the
defendants have had all along anyway. It's a
well-known, recognized database. We've been
providing them recognized databases anyway. So
with the exception of that, the answer is, no.
Now, if the defendants have anything in
particular else that they need, for instance, if
it turns out Mr. Wecker doesn't have software to
run regressions, and he needs our software
package, well, then I guess we'll give it to him.
And if he doesn't know how to run that software
package with this data, well, if they ask us
that, I guess we'll have to teach him that. But
those are the kinds of details that we're really
being asked here for.
I have reviewed with three of our
experts, Mr. Wecker's report, and they candidly
do not understand how it is that an
economatrician can take a well-known, recognized
health care database, see the regressions that
have been run by our group, and not run the
regressions themselves. Because our experts say
when we ran the regressions, we didn't have to go
back and get trained by Glenn Harrison or Len
Miller or Vince Miller, or anybody else, how to
run a regression or to get their software package
to see what they've done before. This is what we
do day in and day out, is run regressions.
So the specific answer is that maybe one
minor one that I need to check with my associate,
but apart from that, our understanding is that
they have everything.
MR. SIMONDS: Your Honor, there are a
couple of specifics that Mr. Sobol spoke to that
relate to facts which Mr. Biersteker is more
familiar with than I am because of his prior
involvement, and I want to ask him to respond.
THE COURT: Yes.
MR. SIMONDS: In particular, I have in
mind the MMIS familiarity issue for Dr. Wecker,
and I also have in mind this latest business that
somehow the state seems to think that we need to
be educated on how to run a regression, whereas I
think --
THE COURT: Maybe if either you or Mr.
Biersteker articulate what are these items that
you say are missing that you need before your
people can even get started?
MR. SIMONDS: Let's see if we can
address that.
Let me say this, this delivery of data
sets which Mr. Sobol calls for, it was quarter of
six last night when one of those data sets
arrived in our office, and it was about six
o'clock the night before that an earlier data set
arrived. So that the notion that these data sets
have been all provided, if in fact they have
been, is a notion that was extremely current. I
mean, if that is a complete delivery of the data
sets they relied on, it just happened.
THE COURT: Mr. Biersteker?
COURT REPORTER: Could you speak a
little louder, please.
MR. BIERSTEKER: I'll do my best.
Sorry.
A couple of things. One, what we are
missing and what I didn't hear the Commonwealth
say they were going to give us, but it had been
my impression prior to this that they would, were
the actual computer programs used by their
experts. And let me explain that.
It isn't that our experts need to go to
school to learn how to do regression analyses.
They know how to do that. But as many
economatricians and statisticians, health care
economists as there are, there can be that many
different regression equations.
Now, they've given us the stack, sort of
description, a verbal description of what it is
that they have done. And they have described it
in sort of a generic way. But the devil is in the
details. The devil is in the details.
And we want to see how they get from
step one to step two, to step three, all the way
to the end, so that we can analyze the logic
which is contained in their computer programs so
that we can exactly replicate the results so that
we know that we're doing the same thing and --
THE COURT: All right. Let me -- I hear
Mr. Sobol saying that is standard regression
analysis software. Is it something else? I mean,
the man has his own. Why doesn't he try running
it on his own and see if he comes up with
anything different?
MR. BIERSTEKER: Your Honor --
THE COURT: If he comes up with
something different, then I can understand he
really wants to look at the Commonwealth's, but
has he tried running it with his own?
MR. BIERSTEKER: Well, we have just
received it, number one. And number two -- and it
keeps changing -- we've only gotten the data. We
still don't have all the data on which to run it,
or perhaps don't have all the data. It's my
understanding we're still missing one data set,
and we only got some of them last night at about
six o'clock. So, no, we haven't undertaken that
effort.
But what I'm saying is, it's a
fundamental misconception to think it's like
WordPerfect, which is the analogy that the
plaintiff's used.
The plaintiff's experts wrote their own
computer programs. They didn't go down to CompUSA
and buy a regression package off the shelf and
plug it into their computer, and voila, let it
run on the data. They had to write their own
computer programs. They've written them. There's
no reason on God's green earth why the
Commonwealth cannot give those computer programs
to us.
And I tell you, the replication, even
just the pure mechanical replication, taking
their computer program and applying it to the
data, is not something you can do with the snap
of your fingers. It just isn't. That has been our
experience.
And the notion that they've now told us
everything we need to know to understand how they
did what they did, is laughable. They had five
Harvard economists and statisticians working on
this for four and a half hours -- four and a half
months, rather. If they had to spend that much
time putting it together, how do they expect us
to recreate the whole thing based upon a very
cursory written description.
I'm asking for the formulas. I'm asking
for the computer programs. We've gotten them in
every other state. We're entitled to the them
here, and there's no good reason why they can't
give them to us. That's the first thing.
The second thing as to the MMIS data. We
have had the MMIS data for a period of time. We
have done some analyses of the MMIS data. But the
State of Massachusetts has done a fundamentally
different analysis using that data than has been
done elsewhere. This is set out in Dr. Wecker's
affidavit at paragraph 19. We have not gone back
and tried to do that. There's mountains of this
data. Mountains of it. Hundreds, if not thousands
of the standard sort of computer disks that you
use in your PC contain this data. It requires a
whole lot of effort. It requires, in some
instances, special hardware, bigger computers in
order to be able to do it. It's a very time
consuming process, and they have ambushed us,
having said they're going to give us a deja vu
model, they come out now with something that is
very very different than something that we have
seen elsewhere. And they expect us to have done
the analyses. We're responding to them. We look
at what they did. And we try to take a look at
it, and we try to make sure that they did what
they said they did, right. We try to look at
sensitivity analysis.
And now, let me get to what I think is
the bottom line, unless there is another question
that your Honor has, but what I think is the
bottom line. I don't see that we're all that far
apart. I heard the Commonwealth -- the
Commonwealth says in its submission on page 8, in
footnote 9, that it is reasonable to expect that
defendants replication of the disease-specific
results -- he's not even talking about the
inclusive model -- just the disease-specific
results could be accomplished in one month. All
right?
But we also have to replicate the other
analyses that they've done, the inclusive
approach that they did not address. So you can
add some more time for us to replicate those
results.
And then, I just heard the Commonwealth
say it's going to take four or five additional
weeks on top of that to do sensitivity analyses.
You bet you. It's going to take that long to do
it. And after we finish those sensitivity
analyses, all we have done is analyze what the
state has done, and poked some holes in it. And
then we're going to do our affirmative analyses,
and lo and behold, where do you end up if you add
three weeks onto that? At three months, exactly
what I asked for.
We're not that far apart. We're not
crying wolf.
THE COURT: The difference is you're
asking for three months from a date that isn't
yet ticking under your version. There's the rub.
There's the rub. I mean, there is not a big
difference in fact between what's in the case
management order, tack on for your side a
comparable extension to what the Commonwealth's
asked for, there's not a lot of difference
between that and three months, if the three
months is ticking now.
It's this notion that it's going to be
three months from the date you say you're
satisfied you've got everything, and I must say,
I do have a suspicion that if I bought into that
theory, I could hear for the next several months
how you really just still don't have everything.
I need a date certain, and if there are
things that you say you are missing, identify
them, the Commonwealth will be required to get
them to you. And if they don't and you need a
change on a deadline because of it, we can then
talk about that. But it's the open-ended quality
of three months from when we think we have
everything that is the problem.
Pick a date. Let's pick a date certain.
MR. BIERSTEKER: Well --
THE COURT: It seems to me, indeed with
these dates we're talking about, that it should
not have any impact on any other dates that
remain in the case management order. This is an
independent problem.
MR. BIERSTEKER: I agree as to that last
statement. It should not affect any other dates.
And the information is generally -- that
we want -- is generally described in paragraph 3
of Dr. Wecker's affidavit. We want their State's
experts' final and complete damage estimates. I
understand, at least, and I'd like to hear them
say, that what we've gotten is final and complete
and they're not going to change it anymore. It's
not a moving target. It's fixed.
I would like to get all the data. I
understand that we're missing one data set. I
don't know when the state can give it to us.
We'll check that and we'll make sure. But as soon
as they can get it to us, we'll have the clock
start ticking.
The other thing we need --
THE COURT: I'm not going to wait to
have the clock start ticking. I'm going to set a
date today that is the date.
MR. BIERSTEKER: I'm trying to describe
what it is we need. We need the formulas and
computer programs that their experts wrote and
actually ran to get the bottom-line number that
appears in their reports.
We need, if there are manuals that come
with the data sets that define what the different
fields are in the data, in other words, when the
data says smoking, what does that mean? You know,
there's a definition contained in the data set
that will tell you what that means, and we need
those definitions to the extent that we haven't
gotten them.
And finally, if the state has done
sensitivity analyses of their own, if they've
tested the validity and reliability or
statistical significance of the results that they
got, we would like to get that information as
well. They haven't talked about that in their
reports. I haven't seen any of that information,
and we certainly don't have the computer programs
that relate to it.
We've got orders from other courts that
spell out very clearly exactly the different
things that need to be produced, and I'll be
happy to supply those to the Court if you think
it will be helpful. But that basically is the
information, the information contained in
paragraph three of Dr. Wecker's affidavit which
generally describes what we need. And now the
clock can start, as soon as the state tells us
they can get us that, that's fine. And whatever
that date is.
THE COURT: As I've told you, that's not
the approach I'm going to take. I'm not going to
have the clock not starting ticking awaiting the
outcome of further arguments about whether you've
been given this or that. We're going to set a
date specific by which your stuff is due back,
your expert designations and disclosures in the
form of summary narratives and exhibits. I'm
going to adjust the date in that column on the
case management order.
MR. SOBOL: May I be heard, your Honor?
THE COURT: Yes.
MR. SOBOL: First, I agree, your Honor,
that it isn't necessary to have a date for that.
I think we've learned in this litigation that
there are no such things sleep or weekends
anyway, so if we have the specific requests and,
you know, we just basically work around the clock
to be able to get it to the defendants and try to
do it as soon as we possibly can. So I think that
any date would actually be longer than it would
actually take us to be able to do it, so long as
we have the information, that's the way that we
try to handle these things.
In terms of what a specific date would
be, I have a comment and then a suggestion.
Working in this area is somewhat like having to
go to prison, and I'm just asking that the
defendants' sentence run concurrent not
consecutive. When they're doing their work, they
should have to be running concurrent sentences,
doing -- walking and chewing gum at the same
time, rather than trying to spread it out over an
entire three month period.
I just spoke with Mr. Weber. Our view
coming in here today was that the Commonwealth
thought that a comparable one month extension
would be appropriate, which would be from August
16th or thereabouts, to September 16th. And we'd
like to modify that to try to be magnanimous and
move this along. If the defendant's date instead
would be September 30, I'm assuming that's not a
weekend day off the top of my head, that provides
them six weeks essentially to be able to do this.
And if there's anything specific that they don't
have right now, they can call me this afternoon
and we'll be working over the weekend to get it
to them. That's our request in any event, your
Honor.
And Mr. Weber has indicated, and I think
it's important, we offered to give them anything
that they want. I mean, if they want something in
hard copy, they want some of the software, they
want a meeting, or they need to know some more
information, whatever it is that they want, so
long as it's not, you know, attorney-client
privilege, they'll get it.
THE COURT: Yes?
MR. BIERSTEKER: Provided that the
Commonwealth can deliver the materials we talked
about, and in particular, the computer materials
that their experts wrote and used in the next two
weeks, September 30th would be agreeable to us,
your Honor.
THE COURT: Well, what I will do, I will
simply amend this date to -- let me double-check
the calendar. September 30th is a Tuesday. I'll
simply change this date to September 30th. I'm
not making that date at this point contingent on
any particular thing. If there is a problem --
MR. BIERSTEKER: Your Honor, I'm sorry.
I don't mean to interrupt. For a guy who does
damages stuff, I can't subtract very well and I
got my calendar mixed up. They propose September
30th, and I am in a time warp, I guess, and
missed the fact that that's really only two and a
half months.
I would very much ask for -- if we get
October 15th, that's only, basically, three
months from today and it has no time built in it
for us to get the materials we want, which the
State has not made a commitment to get other than
to -- in a specified period of time.
Assuming the State can deliver it one
week from now, I think October 15th is the date
that we would ask for instead of September 30. I
apologize.
THE COURT: Okay. October 15th is a
Wednesday. Since after all, I notice this, after
all, is a disclosure to which the Commonwealth
does not owe any response. It's purely at that
point a matter of trial preparation, and these,
after all, defendants' experts, would not be
taking the stand until fairly late in the
proceedings, I would anticipate, next winter. So
October 15th.
But, again, just because I keep hearing
this from the defendants, this, well, October 15
is alright if, I am not setting any such specific
conditions or contingencies. I am simply changing
this date. That's all I am doing. And if somebody
thinks they need to extend that date further,
explain why, but there's not going to be -- I am
not going to entertain a, "well, that date was
set on the condition that they get us the
following things in one week, and they didn't get
it to us for a week and a half, and therefore" --
I'm not setting any specific conditions. I'm just
changing the date.
So it's October 15. All right, now --
MR. GRIFFIN: Your Honor, could I bring
up one other date issue that I just want to alert
your Honor to.
There is another date you'll see on the
case management order time table, which is,
September 15, if I recall, for summary judgment
motions.
It is clear to me that one of the
summary judgment issues will be the use of the
model, or whether there is something by way of a
summary judgment issue we can present to your
Honor that deals with whether that model can and
should be used. So my thought is not to move
September 15th on summary judgment. Every other
issue that we can present will be presented on
September 15. The question is, we may need to
rachet back for one carry-over issue, which is,
if there is a summary judgment issue presented on
the model, that date has to follow October 15th.
THE COURT: Well, I disagree with that.
It seems to me the issue on summary judgment, any
issue on summary judgment, does not require -
does not require the kind of, you know, checking
out every last little thing that you might
criticize or talk about, because the standard on
summary judgment is so favorable to the non-moving party.
It seems to me that if there are such
gross, glaring problems with the Commonwealth's
model that they would literally result in summary
judgment in favor of defendants, those are the
kinds of big conceptual glaring defects that Dr.
Wecker ought to be able to identify for you in
time to make that conceptual argument in a brief
filed September 15th.
That does not require him to find every,
you know, every little thing where they might
have over calculated this, or under calculated
that. It's, is the model so grossly defective
that it just, you know, isn't even admissible or
that it comes out to zero as damages. I mean, is
there something so appalling about it.
It seems to me, errors that big, errors
that big, Dr. Wecker ought to be able to identify
in time for the September 15 filing,
understanding these people are going to spend
another month before disclosing their version and
all of their other criticisms or problems or
things they found when they've played with it.
But that's very different from a summary judgment
standard.
MR. SIMONDS: Your Honor, on that issue,
can I ask for the Court to consider a refinement
of the position you just stated?
I think, in talking about this before we
came here, the defendants are agreed that
whatever issues that are appropriate for summary
judgment that can be invoked under the model as
we know it should be dealt with without any
extension of scheduling.
If, however, as we analyze the model,
there are factual issues that call for an
additional summary judgment motion that cannot be
made until the analysis is complete, we would
like to reserve the right to argue that issue to
the Court and to look for a later date for that
portion of the summary judgment briefing and
argument. And we think it not unlikely that that
kind of an issue will arise and be appropriate
for consideration by the Court; not because of
egregious errors, but because of the need to
understand the model in order to appropriately
brief the summary judgment arguments.
THE COURT: On summary judgments where
the purpose of that argument I will have to weigh
everything in favor of the -- in favor of the
Commonwealth, it would seem to me it would take
some, as I say, glaring error, some defect of a
type that would make the entire thing collapse,
not just, well, it's a gross overestimate, or
it's a -- you know, they failed to take this into
account so it needs to come down for that, but
something that would make the entire thing
collapse. And, again, where Dr. Wecker has looked
at a number of these issues before, he ought to
be able to identify those for you in time for
your September 15th filings. So I do not intend
to make any amendment or adjustment to the
September 15 date at this point.
MR. SIMONDS: Your Honor?
THE COURT: Yes.
MR. SIMONDS: Can we have a date
designated by the Court for the additional
production from the Commonwealth?
THE COURT: No. I am not, because I do
not hear clearly what that difference or dispute
is. And discovery problems, you're supposed to
meet and confer before I entertain them. I'm not
going to set a date in advance of any time that
the parties themselves have sat down to hammer
out what additional items it is you say you need.
Mr. Sobol says, identify it and we'll
provide it to you even if we think you don't
really need it.
MR. SIMONDS: If I understand the
argument that has occurred before the Court this
morning, we look like we're ships passing in the
night. Mr. Sobol has identified WordPerfect and
our ability to run regression analysis, and Mr.
Biersteker has identified the software program
and formulas, and definitions, and manuals that
these particular experts used. That's the basic
stuff we're missing.
THE COURT: Well, I understand that's
your position, but discovery problems like that
are supposed to be subject to meet and confer
before I take them up. And I don't intend to take
them up this morning in the absence of that
having taken place. So I'm not -- that's why I'm
not setting some interim date about this
production.
Okay. Anything further before we move on
to the next agenda item, which I gather are other
discovery issues, and there was going to be an
update about where we stand on those.
Yes, Mr. Griffin?
MR. GRIFFIN: Agenda item number 2, your
Honor, a brief report as the agenda calls for.
Last week, Friday, July 10th, there was
a meet and confer of counsel to deal with various
issues. Included were two issues: the expert
discovery questions, and questions about the
Commonwealth's request to admit as to the
authentication of its documents.
I would simply report, in the course of
that meeting, both sides identified issues that
were of common concern, and figured out a
tentative approach to how to deal with them so
that we don't need to take your time today. And
just let me just describe what it is we talked
about and what we're going to do about them just
so you have a heads-up.
On the issue of expert witness discovery
issues, it was identified that both sides had
concerns that needed to be addressed about
whether there was a need for expert witness
depositions, who they should be, what they should
be, whether we need not replicate what's already
been done unless there's something new vis a vis
an expert who has previously testified or been
deposed in another case.
There are a bevy of new experts that
we'll have to deal with. We have decided that
issue needs to be addressed. The issue of closure
of expert witness position's has to be addressed.
Everybody is hedging that they need time to
supplement, will supplement as needed, but the
risk to both sides is that the failure to close
doesn't allow us to come to grips with what it is
we're going to be dealing with at trial.
Having identified that as a common
issue, we have decided to set up what's worked
for us in the past in terms of moving ahead on
the Court's business, which are subcommittees, a
defined group of counsel to deal forthwith with
that issue, come to grips with it, and see what
common ground we can work out in terms of dealing
with the issues.
On the second issue that we identified
on June 30th to raise with your Honor today was
the question about responding to the
Commonwealth's request to admit, authentication
of documents. We've got 12,000 documents which we
are supposed to respond vis a vis authentication.
I think everybody agrees, both sides,
because both sides have the same interest, to
come to some common ground, short-listing what's
really important. And again, we have tried the
tried-and-true method, which has helped us get to
the protective order, the CMO and whatever, which
is, to set up a subcommittee; both sides will
identify who will be on these committees and will
deal with those specific issues, not only
authentication of documents, perhaps, but a
preview of how to use documents at trial, by what
computerized technological approaches.
So rather than have to report any more
than that, I think we're basically at work and
we'll report to your Honor as soon as we can, if
we can, come to agreement on issues; if we can't
come to agreement, that we present it to you in
the appropriate way under the CMO.
THE COURT: Along those lines, another
issue that I wanted to raise today in light of
some of the discussion we had last time, and that
I would like taken into account in dealing with
this issue of both document authentication and
organizing things in terms of exhibits. I have
become deeply concerned that the way we were
dealing with the privilege claims has become
chaotic, and is problematic for me, and I think
for the parties, and will become disastrous at
trial.
Part of it, I think, for everybody
concerned, including myself, is that privilege
claims which are normally a discovery problem
are, in this case, largely a motion in limine
problem because events have overtaken us,
documents or the vast bulk of them that were in
dispute on privilege issues are now in the
Commonwealth's hands anyway, and it's a question
only of admissibility at trial, not use during
discovery, or not discovery itself. And I am
concerned that we are becoming side-tracked with
what are essentially motion in limine problems at
a time when the parties themselves still have
important true discovery issues that they both
need to address and will need my attention on.
I am also very concerned that by taking
the documents in the piecemeal way that the
Commonwealth has been submitting them to me, we
have -- I mean, at even the most fundamental
logistical level, problems. They're all being
given the same numbering. And I can see coming up
at trial, oh, no, the judge ruled that number 48
was this; or, oh, no, that was number 48 of the
set we heard in July, not the set we heard in
August. I mean, chaos. We are building up to
terrible levels of chaos.
It does seem to me, where it is a motion
in limine issue, and yet it will take more time
than the time we have allotted for the true
motions in limine at the very end in December and
January, that what we ought to be doing is indeed
setting a time where this is a matter of an
exhibit list, and I'm working off of, and
everybody is working off of, an exhibit list that
is on one comprehensive list, one comprehensive
chart, and that they come in to me -- I know it's
going to be a huge volume. I'll have to do
nothing but that for quite some time. But it lets
us all do it once; let's me see all the documents
in context, a clearer chart where everybody knows
what's been done, what hasn't been done.
On some of the documents, we also have
the problem, particularly if I find that the
Commonwealth has made a prima facie showing of
crime-fraud, that then shifts over and there's a
need for rebuttal, or we're doing rebuttal at the
same time we're doing other things, I think it
gets very very confusing.
It's very hard for me, also, to be sure
in my own mind that I'm being consistent about
some of the balancing that has to go into an
analysis of whether a particular document is
predominately non-legal advice as opposed to
predominately legal advice. That's a standard
that, whether I'm setting it correctly or
incorrectly, I ought to at least be setting it
consistently across the different categories of
documents.
And taking a look, a brief look at the
next set that the Commonwealth had sent in, it's,
you know, it's documents that are in some ways
similar to ones that I've already seen and ruled
on, and I'm trying to handle it consistently, I
can't do it piecemeal.
I think we need an exhibit list, and I
think the parties had mentioned the possibility
of a kind of a, you know, an exhibit list, that's
then a chart where we keep score of, you know,
what the parties' positions are, what rulings I
have already made, what still needs to be dealt
with on the defendants' rebuttal, and we get
final.
Some of the things also are coming in
and people are telling me on the day that it's
being heard, oh, we're withdrawing our privilege
claim on that; or, oh, the Commonwealth isn't
seeking it anymore; that these things could be
much better mapped out with a lot less confusion
if we were working off of one, comprehensive
trial exhibit list.
And I -- this possibility sort of
surfaced late in our proceedings last time, and I
obviously can't expect, and wouldn't expect, the
parties to be prepared to talk about that or
think about that in detail today, but I think we
should formulate such a plan for what's a
realistic time frame for the Commonwealth to be
providing an exhibit list, and then what the
columns on that chart need to look like so that
we then, from that exhibit list, work through
whatever the various objections are and my
rulings.
My own initial impression would be, we
would need to be in that position by sometime
towards the mid to late fall in order for me to
accomplish that task, and have that chart, as it
were, and all its columns, filled out enough in
advance of the actual trial date so that it's --
the work is all done sufficiently in advance of
February 1st.
But it would seem to me that rather than
proceed in the piecemeal fashion, and proceed,
you know, next week to just keep going in the way
we were going last time, that perhaps when we get
together next week, the parties can have thought
a little bit about a time frame for that task,
what's involved in it, how the chart should be
designed for the benefit of all concerned,
including myself, and approach it that way.
I think it can be done and I would
commit to doing it without pushing back the trial
date at all. Rather, it would just be an
acknowledgment on my part that when that chart
and its enormous stack of documents come to me to
review those issues, for all practical purposes,
I would say from that point on I'll be devoting
having to devote full-time to this case. But
that's going to happen sometime in the late fall
anyway, I suspect, at the rate we're going. It's
just a matter of when. And that issue could be
built into that.
I need to go to my Chief Justice about
that. But as I say, I won't expect people to
respond off the cuff today to that, but could we
put that on the agenda for next week, rather than
the review of yet another set of documents that
are numbered one through fifty-something,
identical sort of numbering of what we're already
dealing with.
I would also recommend, by the way, that
that chart include what it is we've already done,
in other words, columns that can already be
filled out based on what we've already done, will
be filled out. I'm not going to redo the work
that's already been done, but I think putting it
onto one comprehensive master list is necessary
and appropriate. And so, if people would address
their thoughts on that and some suggestions about
that approach next week, I'd appreciate it.
And we'll add that in the case
management order as to when we're going to be
handling those because they truly have been
converted into motions in limine.
MR. SIMONDS: As Mr. Griffin reported,
at the July 10 meet and confer, we did address
the issue of trying to get an exhibit list that
was manageable. I infer, I think clearly from
what the Court has said, that the place where
that list ought to begin is with those documents
that are basically defense documents that the
Commonwealth wishes to use against the defense,
and that defense has some claim that requires
your review of.
Ultimately, presumably, the exhibit list
that we deal with at a final pretrial level will
deal with all exhibits that are to be used on any
issue by either side with whatever stipulations
as to authenticity or admissibility we could work
out. But I presume the Court is focused at the
moment on the issue of how you deal with the
privilege, work product, crime-fraud issues.
THE COURT: That's what I'm focusing on.
But I must say, I think that it's a more
meaningful exercise if we are looking at
essentially a true and complete exhibit list that
simply, you know, if one of the items on that
exhibit list has an outstanding contest about
privilege, that's something that I've got to
address.
There may be items, probably a lot of
items on that exhibit list where there isn't a
privilege problem, maybe there's some other kind
of problem, maybe there's no problem. But with
the number of documents we're going to be talking
about, the number of lawyers who are going to be
involved in trying this case, the length of time
it's going to take to try this case even if
everything is going beautifully, we need an
exceptionally well organized approach to the
handling of exhibits.
And I am looking at not simply putting
the burden on the Commonwealth: okay,
Commonwealth, you've got to come up with your
exhibit list and whatnot, but everybody's got to
come up with exhibit lists so that we have a
master list on which problems, as we deal with
them, get checked off.
The most obvious, and it looks like the
biggest and most time consuming problem we have,
is the privilege issue, is the privilege issue.
But your thinking about these logistical problems
as you wrestle with the authentication problem as
well, and this is -- I really think I need to
shift gears and deal with the privilege problems
about the documents that the Commonwealth already
has as motion in limine problems, because that's
what are.
There are still some privilege problems
about things that have not yet been discovered,
and some of the Jones-Day issues, the witness
interviews and some of those things, that's where
I think my attention needs to be right now,
because that's discovery, that's true discovery;
that's things that one side wants and the other
side doesn't have; they have a disagreement, we
need to get that resolved. And I want to focus on
those, but put this into a comprehensive exhibit
list and the dealing of all motions in limine or
other problems with regard to the admissibility
of those exhibits.
I'm not, as I say, I'm not asking people
to commit to a format or sequence today, but it
does seem to fit into what Mr. Griffin was
talking about.
Anyway, give some serious thought to
that so that we can discuss it hopefully,
intelligently, next week, because it will take
some time for the parties to put this together.
And it's got to be put together in enough time to
resolve these privilege problems between that
date and the February 1 trial date. We'll work
backwards from the February 1 trial date and make
sure it gets done soon enough.
Yes, Mr. Weber?
MR. WEBER: Your Honor, I believe we've
scheduled two days next week.
THE COURT: Correct.
MR. WEBER: So which day --
THE COURT: I would -- we had scheduled
two days, but I must say, that was at the time on
the assumption that I was going to be reviewing
another hundred documents. I don't know what else
the parties anticipate for next week's agenda. I
know some of the problems or issues about the
Jones-Day, the R&D Memo, and the Fact Team Memo
issues, the parties asked to do those next week
and not today. I want to obviously talk about
this issue that we've just talked about.
I don't know what else you have on the
agenda, whether it will in fact amount to two
days. If it does, I'm still holding those two
days for you. I haven't given them away. But --
MR. GRIFFIN: Your Honor, I had not
anticipated any other business besides those two
for the next two days, thinking that that 52
documents, plus whatever carry-over documents
remained from July 1, would more than fill up the
two days.
THE COURT: That certainly would fill up
two days, but I don't think that's a useful
expenditure of my time or the parties' time. It
will create as much confusion as it solves to
continue proceeding that way. That was my
impression, having been through it last time,
quite frankly.
MR. WEBER: You Honor, can I recommend
the second of the two days on the theory that it
would give us a little bit more time to work
through these issues?
THE COURT: I have no problem with that.
MR. GRIFFIN: I assume that the people
who would have been here anyway on Thursday and
Friday, can make it on Friday instead of
Thursday. So unless someone shouts that that's
inappropriate, I think we can live with certainly
Friday as a single day next week.
THE COURT: Let's assume then that it's
just Friday. If something remarkable happens so
that people think that we have an agenda that's
going to take more than one day, Thursday, you
know, let me know and we'll start Thursday
instead. But absent something fairly dramatic
happening, it sounds like Friday should be ample.
MR. SIMONDS: Your Honor, can I return
to the model with just one question?
I believe we have received an assurance
from the Commonwealth that the model as
submitted, and there were several compartments
that it came in, is now complete, and that there
is no contemplated supplementation still to come?
That is obviously an important issue in terms of
the time table we've set, and I'm therefore
requesting a representation by the Commonwealth
that we are in fact dealing with the end result
of their model.
THE COURT: Well, subject to what the
parties are themselves talking about about so-called finality on expert issues. I gather the
Commonwealth has turned over its: this is what we
intend to present. And that's been done.
Obviously, however, after they get back all of
Dr. Wecker's criticisms and problems, there is
going to be some ability to augment their expert
disclosures to perhaps respond to some of those,
and that awaits your disclosures, but everything
short of that, I understand has been done, am I
correct, Mr. Sobol?
MR. SIMONDS: That's what I'm asking
about, your Honor.
MR. SOBOL: Yes, your Honor. You are
correct. There is also the other issue that the
damages go up to the date of judgment, so there's
also the need of addressing that.
THE COURT: Okay.
I think that is all for today. The other
thing, I don't think we need to put it on for
next week, but something that I think we
certainly ought to be thinking about, or starting
to think about by the time we're getting together
in August is, I hate to say it this early, but
it's true, I have to start thinking about some of
the logistical issues surrounding trial because,
as you know, this court needs some lead time: the
summonsing in of extra jurors, space, logistical
constraints, are not something that I can do
without substantial lead time working with both
my Chief Justice, court reporters, the jury
commissioner, and whatnot, and we need to start
mapping out some of those things to make sure
that I have time to try and get the logistics up
to your expectations by February 1. So by August
we need to start dealing with mapping out,
literally, trial logistics on some of these
things.
MR. SOBOL: Your Honor, could you
identify what you perceive to be some of the
issues?
THE COURT: Well, one of the big ones
early on is indeed jurors and the impanelment,
just in terms of sheer numbers, i.e., what's the
best approximation of starting on February 1st?
How many jurors will we go through in a day,
because the jury commissioner is going to need to
send out extra summonses and he needs to do that,
I think, three months in advance. So I need to be
refining that so that I can put that in motion by
some time in the fall to make sure that we have
enough jurors coming in each day during
impanelment.
And those of you who have been through
impanelement in other states can shed a lot of
light on how it was done; what worked; what
didn't work; what that experience was, just so
that I can at least refine something about timing
and numbers for purposes of the jury
commissioner.
Simple space constraints are significant
given the number of attorneys that are going to
be involved, and courtroom space, and any
ancillary space that might be needed by the
parties themselves to handle the volume of
attorneys, witnesses, consultants, etcetera, that
you all need.
The other important logistical issue is
court reporters. What is it that the parties are
expecting, wanting, in terms of transcripts? If,
for example, if the parties are wanting literally
daily copy for every single day of this trial,
that is something that court reporters need to
know about long in advance to map something that
labor intensive out.
I guess perhaps what it is in August I
want is something of your anticipated needs, what
you're going to be looking for in terms of those
issues.
What do you want in terms of the
logistics of how we handle the documents, again,
just to make sure that -- those of you who are
not from Massachusetts perhaps don't realize what
some of our logistical constraints are here, but
the Massachusetts lawyers will be very familiar
with that. So it's as much a laundry list of
your expectations and your needs so that I'm not
confronted with something that's a perfectly
legitimate request on your part without enough
time to -- we literally have some courtrooms in
this Commonwealth that do not have alternating
current. I mean this is how -- so when we talk
logistics, sometimes we talk logistics at a very
fundamental level, and I want to make sure that
we can do the best we can on such things.
So because of the lead time, I might
need to address those kinds of issues. We do need
to start thinking about them by late summer and
as we get even into the early fall. So those are
the kinds of things that we ought to start, at
least in a preliminary way, talking about by next
month I think.
All right, I'll see you next Friday.
[Court adjourns 11:29 a.m.]
C E R T I F I C A T E
I, Patricia Bellusci, do hereby certify that the
foregoing transcript, pages 3 through 75, is a
complete, accurate and true record of my voice recorded
tapes taken in the aforementioned matter to the best of
my skill and ability.
_______________________
Patricia Bellusci
Official Court Reporter
The foregoing certification does not apply to any
reproduction of the same by any means unless under the
direct control and/or direction of the certifying
reporter.