No. of Pages: 48

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS SUPERIOR COURT

No. 95-7378-J

Before: Sosman, J.

COMMONWEALTH OF MASSACHUSETTS

VS

PHILIP MORRIS, INC., R.J. REYNOLDS TOBACCO COMPANY,

BROWN & WILLIAMSON TOBACCO CORPORATION, B.A.T. INDUSTRIES

P.L.C. LORILLARD TOBACCO COMPANY, NEW ENGLAND WHOLESALE

TOBACCO COMPANY, INC., ALBERT H. NOTINI & SONS, INC.,

THE COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC., and

THE TOBACCO INSTITUTE, INC.

_____________________________

Thursday, September 24, 1998

Cambridge, Massachusetts

LYNCH & ASSOCIATES ~ Court Reporting Service

259 Cross Street ~ Malden, MA 02148

(781) 321-4029

APPEARANCES:

SCHNEIDER, REILLY, ZABIN & COSTELLO, P.C.

Jeffrey D. Woolf, Esq.

Three Center Plaza

Boston, Massachusetts 02108

Counsel for the Plaintiff

BROWN, RUDNICK, FREED & GESMER, P.C.

Nancy B. Reiner, Esq.

One Financial Center

Boston, Massachusetts 02111

Counsel for the Plaintiff

MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

George K. Weber, Esq.

1 Ashburton Place, Anti-Trust Division

Boston, Massachusetts 02108

Counsel for the Plaintiff

MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL

Rebecca McIntyre, Esq.

1 Ashburton Place

Boston, Massachusetts, 02108

Counsel for the Plaintiff

APPEARANCES (Continued)

Richard A. Daynard, Esq.

Northeastern School of Law

400 Huntington Avenue

Boston, Massachusetts 02115

Counsel for the Plaintiff

GOODWIN, PROCTER & HOAR

Thomas J. Griffin, Jr., Esq.

Exchange Place

Boston, Massachusetts 02109

Counsel for Philip Morris, Inc., Defendant

GOODWIN, PROCTER & HOAR

Marshall Simonds, Esq.

Exchange Place

Boston, Massachusetts 02109-2881

Counsel for Philip Morris, Inc., Defendant

KIRKLAND & ELLIS

Marjorie Press Lindblom, Esq.

153 East 53rd Street

New York, New York, 10022-4675

Counsel for Brown & Williamson, Defendant

APPEARANCES (Continued)

HILL & BARLOW

Gael Mahony, Esq.

One International Place

Boston, Massachusetts 02110-2607

Counsel for Lorillard Tobacco Company, Defendant

PROCEEDINGS

(Court reporter accepted and sworn)

CLERK: Your Honor, may I call the case?

Middlesex Superior Court docket number 95-7378, the

Commonwealth of Massachusetts versus Philip Morris,

Inc.,et al. The Honorable Martha Sosman presiding.

Would Counsel please stand and identify themselves,

please?

MS. LINDBLOM: Marjorie Lindblom for Brown &

Williamson.

MR. GRIFFIN: Thomas Griffin, counsel for Philip

Morris and liaison counsel for the Defendants.

MR. MAHONY: Gael Mahony, counsel for Lorillard.

MR. WEBER: George Weber, Assistant Attorney

General for the Commonwealth.

MS. MCINTYRE: Rebecca McIntyre, Assistant

Attorney General.

MS. REINER: Nancy Reiner, Special Assistant

Attorney General.

THE COURT: I apologize for keeping you waiting.

I did have an opportunity to discuss logistical issues

with the Regional Administrative Justice, Judge Neel,

since I'm borrowing his court room this morning who

obviously has concerns about the logistics of this trial

as well. I did receive a timely agenda. I thank you for

that. And I understand that item number three on the

agenda has been postponed or taken off by agreement.

MR. GRIFFIN: That is correct, Your Honor. I so

reported to the clerk.

THE COURT: All right. Any other changes or

changes in the order you wish to proceed, otherwise we

can just start right in with number one.

MR. GRIFFIN: No, Your Honor. If I may, Your

Honor, Thomas Griffin for the Defendants. Status report

on trial exhibits is agenda item number one. The parties

have met the schedule for the exchange of proposed trial

exhibits set by Your Honor at the last status conference.

On August 21st, the parties had the initial exchange of

trial exhibits as scheduled. The second installment of

the exchange of trial exhibits went forward as scheduled

on September the 11th. So far the Commonwealth has

designated approximately two thousand trial exhibits.

The Defendants have likewise designated just over two

thousand trial exhibits. The next exchange of trial

exhibits is scheduled for Friday, October 2nd. The

parties are working towards that date. There was a

meeting of Counsel on Tuesday of this week, September

22nd, Your Honor, at which there was discussion about,

among other things, managing the issues relating to

objections as to the trial exhibits and the mechanics of

putting together the master trial exhibit list that we're

scheduled to present to Your Honor on November 7th. And

as a result of that discussion, we have targeted the need

to begin to evaluate a process and a procedure for

dealing with objections and the mechanics of putting this

master list together. And we have targeted several dates

for meetings beginning in early October where we begin

dealing with each other's documents on a specific basis

to try to cope with the issues and try to get to the end

point which is to get you the best available trial chart

we can by November the 7th. We have targeted a meeting on

October the 1st, and additional meetings on October 7th and

8th which may be subject to some change depending on

scheduling. We're going to talk to Your Honor about it

on our next status conference. But we're in the process

of working through that, and so far we're on track.

THE COURT: Good. Anything further on that

item? Yes.

MS. REINER: Just a further issue. Yes, the

exhibit exchanges took place and we have one more left.

But I wanted to talk to you regarding the management of

the trial exhibits as we go through the meet and confers.

We were hoping to get the Court's guidance on exactly

what you want to see in the trial list that we would

submit on November 7th. There seems to be a slight

difference of opinion. We would like to make sure that

the documents get reviewed, and that we can have

admissions noted, and we could learn about categories of

documents as to what they'll be used for, whether they'll

be used for the truth of the matter asserted, or for a

subsidiary issue like an awareness issue, or knowledge of

the public, or any other subsidiary issues. Our goal is

that by November 7th, we'll spend as much time ironing out

these issues, and articulating the admissibility of these

specific documents with the Defendants at these meet and

confers. And we would like to go through as many

documents as is humanly possible so that we can submit to

the Court a list of the objections and other outstanding

issues.

The Defendants seem to suggest that they didn't

want to go document by document, but that really wasn't

idea that we would take each of the two thousand

documents and note every objection, but more the

categories of documents, and we would hope to do that at

the meetings. So, briefly, we just wanted the Court's

guidance as to the purpose of the meet and confers, and

just how much substance you would like in those trial

lists that will be submitted on November 7th.

THE COURT: It would be my understanding that if

something is listed that the other side should be

articulating any objections that it has, but that

normally one of the ways to counter such an objection is

to then articulate it's only being offered for this more

narrow purpose and because of this purpose it's not

hearsay, or whatever the argument is. I think it's an

unnecessarily burdensome to make the party putting a

document on the list in the first place to say, "Here's a

document we want to present and why". I think it should

just be, "We want to present this for some reason. Is

there some objection?" And then perhaps part of what

counters the objection is then an articulation, "We're

only using this for impeachment." "We're only using this

for," whatever we're using it for. I think -- It would

strike me as unnecessary busy work to make the party

offering the document also, at the outset, start limiting

itself to what its uses might be. A discussion of that

could well come out during the course of the meet and

confers in the way I've described, which may or may not

then resolve the objection. There may be a resolution

that as it is used only in that narrow way the objection

will be withdrawn, but that if it's used in some other

way the objection will be pressed.

Obviously to the extent that objections to or

limitations on the use of documents go by category. That

is helpful for me as I start tackling the motions in

limine themselves, as I see this wonderful list on

November 7th. I'm not sure that answers your question,

but that's my immediate reaction, at least, to the

concern you've articulated.

MS. REINER: Right. Well regarding the issue

that you raised about if it was used for one purpose we

might object, and we could put that in the list, and say

if it's used for the truth of the matter, it would be we

object, but if it's used for another purpose we wouldn't,

and we identify what the purpose would be.

THE COURT: I mean, that's part of identifying

what the objection is, and also part of our articulating

from the other side in the meet and confer, here's why we

think it's not objectionable, because of the way we

intend to use this item. Does that -- Is that sufficient

for you to ----

MR. GRIFFIN: I think it gives us the guidelines

on our side, Your Honor, in order to make a productive

use of these meetings next week. We'll see how it sorts

out. I think it's a useful approach.

THE COURT: Okay. And obviously everything that

helps organize, categorize, streamline both the master

list itself and from that master list the packages, the

issues, that I then need to decide is obviously helpful.

Okay. That's all on item number one? All right. Item

number two.

MR. GRIFFIN: We could split item number two

into parts, Your Honor. It reads, "Discussion of trial

venue and logistics, including jury issues," which is

items you specifically requested we be able to address

today. If we could isolate and start with trial venue as

an issue, it would be helpful. Your Honor will recall

that several status conferences ago we briefly discussed

the limitations of this court house for trial of this

case and our need to address those issues and needs

presented by the limitations of this court house. And in

that regard Mr. Mahony, Counsel for Lorillard, has been

gathering some information about a possible attractive

alternative venue for the trial of the case, which we

would solicit your views and reactions to, and if I

could, I'd ask Mr. Mahony to report on what he has done

for the parties in that regard.

MR. MAHONY: If Your Honor please, Counsel for

the Defendants and for the Commonwealth have been

exploring the possibility of using one of the courtrooms

in the new Federal Court House in Boston for the trial of

this case. We had a meeting, a joint meeting, on Tuesday

of this week with Vincent Flanagan, the circuit executive

for the First Circuit. Mr. Flanagan, of course, cannot

bind the judges, but he gave us the strong impression

that the federal judges would be quite receptive to a

request for the use of one of their courtrooms in the new

building for the trial of this case. We discussed

several matters relating to the use of one of those

courtrooms, Your Honor. The first item is cost. Mr.

Flanagan said the cost would be modest, no more than a

pass through of the heating, the electricity, the

cleaning costs that would be associated with the use of

the courtroom. I'm sure that we can work out some fair

sharing of that cost between the Defendants and the

Commonwealth, whatever that cost turns out to be.

The principal items that were discussed in our

meeting with Mr. Flanagan on Tuesday were first, the

subject of transportation to the new court house for the

jurors, and secondly, the question of television cameras

in the courtroom. Mr. Flanagan explained to us that they

have arranged two buses from the Red Line at the South

Station that go directly to the new court house. There

is another bus that goes directly from the North Station

to the court house. In our opinion, there are various

ways -- I'm speaking for the Defendants, Your Honor, in

which the transportation problem could be dealt with.

For example, we might arrange to have a bus that would

pick up the jurors at some convenient location here in

Middlesex, where they could drive and park, or where they

could come to by public transportation. The bus would

bring them to the court house and then would bring them

back to this location at the end of the day. We believe

that there are various ways in which the transportation

question can be dealt with. The second question that was

discussed was the question raised by Mr. Weber of whether

the federal judges would permit television cameras in a

courtroom for the trial of a state court case. Mr.

Flanagan could not bind the judges, obviously, but he

gave us the strong opinion which he has that the federal

judges would not approve of television cameras in that

new court house, whether or not the case being tried is a

federal case or a state court case.

The one remaining subject that we discussed,

Your Honor, was the possibility, if the new Federal Court

House cannot be used, of using space in the McCormack

Building, the old Federal Court House. Mr. Flanagan said

that subject could be explored. I think the consensus on

both the Defendants' side and the Commonwealth's side, at

least among people who were at that meeting, was that it

would be far preferable if we could arrange to get a

courtroom in the new Federal Court House. But I think

the questions that are open, assuming that the invitation

comes, as Mr. Flanagan believes it will, the first

question, I think, is the question of television cameras

in the courtroom.

THE COURT: All right. It's certainly a

possibility well worth exploring. I appreciate the

efforts that have been put into it. It certainly would

be a setting that would not only provide improved

logistics on a whole range of subjects for all of you,

but obviously would relieve my court of some of the

pressure that would be put on its scarce resources by

trying to hold this trial in one of our own spaces. The

only -- Before I get to TV cameras, let me tell you, the

only down side that I see about moving out of this

building that had crossed my mind is that I believe that

we now have something we didn't use to have, and that is

the availability of childcare for jurors, available for

them in this building. Very important, it seems to me,

in jurors that are being asked to sit for that long.

When we're able to offer them on site childcare. Here's

their little brochure, the Clerk just provided me. That

is obviously a major plus that helps us get jurors for

the case who can tolerate what would otherwise be an

unbearable problem, both personal and financial, of

trying to make other childcare arrangements, and the

convenience and availability of that is a, in my mind,

not an insignificant factor as we try to select a jury

for this difficult case. I have no idea whether anything

comparable exists in the Federal Court House. I suspect

it doesn't yet, or in that area. But I make that as at

least one -- That's something we do lose by going there,

potentially.

In terms of TV cameras, I -- It is my

recollection that when the Superior Court was borrowing a

-- the courtroom that I used in the old Federal Building,

that indeed the federal judges understandably imposed

their rules and views about cameras on us at that time,

and I would expect they would do the same in their new

location, and that they would be entitled to do the same.

So I think we should operate on the assumption they're

not going to approve that. Is there a problem with that?

MR. WEBER: Your Honor, the Commonwealth

believes that the case involves matters of such public

health importance that it would be useful for the public

to be able to observe the proceedings. I would add

simply to what Mr. Mahony said that Mr. Flanagan seemed

to believe that even if the Court, the judges, would not

permit television cameras in the new court house, that he

seemed to believe that there would be a strong

possibility that a courtroom on the 15th floor of the old

Federal Court House could be made available, and that it

would be likely -- it would be likely that there would

not be a problem with television cameras in the old

Federal Court House.

THE COURT: Well, no ----

MR. WEBER: Obviously this is a matter, we

understand, for you to decide ultimately.

THE COURT: As you know, it is anticipated that

Suffolk Superior Court is going to be starting to use

that space at around the time we're starting this trial.

It's not finalized, I gather, but that's the expectation,

and that in that -- assuming that to be the case, I --

the use of the old Federal Court House would not, it

would seem to me, to pose any problem about admitting TV

cameras.

MR. MAHONY: Your Honor, on the first subject

that Your Honor raised, we did not raise the subject of

childcare facilities. My best guess is that they are

available in the new court house, but we can explore that

with Mr. Flanagan. I think the -- those type of

facilities would not be available in the McCormack

Building.

THE COURT: That's correct. They would not be

available in the McCormack. They would be available

here. If you can find out what along those lines is

available in the new building, I would be -- I would want

to know that, because I think it could be important.

MR. GRIFFIN: Your Honor, may I just make one

point so we're clear? The Defendants have not agreed to

the televised coverage of this trial, and that is an

issue I think we need to discuss. This is, in terms of

the venue it's obviously an important factor, but just so

Your Honor doesn't carry away any impression that we have

agreed that there should be routine televised coverage,

I'd like to consider that as we go.

THE COURT: I must say, I think in our courts

under our rules, it's not a matter of what the parties

agree to or disagree with. It's my understanding that

absent some good reason for keeping them out, television

cameras are entitled to come in. That's the way our

rules read. Obviously very different from the federal

rules. And it's not a matter of my view, of whether I

want TV cameras there or don't want them there, or the

parties view as to whether they want them there or don't

want them there. I believe our rules are that they have

a right to be there, unless in my discretion I find that

there's some compelling reason to keep them out. That's

how I read the rule. So I don't think it's a matter of

the parties agreement, but obviously it's an issue of

concern if, as I would expect, the situation in the new

Federal Court House is going to be that the TV cameras

will not be allowed in. Normally if there is going to be

any arrangement that is going to, as a practical matter,

bar the -- some segment of the press from the court

house, I would anticipate that I would be hearing from

them, as they would be the ones that would be pressing an

alleged right to be there, which they may have. All

right. Is there -- If there is anything I can do in

terms of either myself or through my Chief Justice,

contacting someone, some appropriate person on the

federal bench, Chief Justice Tauro or somebody that I

should be communicating with, I'm obviously happy to help

do that.

MR. MAHONY: Your Honor, I think when we receive

a firm response from Mr. Flanagan, which should be

forthcoming next week after these celebration ceremonies

have been completed, it might well be appropriate for

Your Honor to communicate directly with the Court.

THE COURT: Why don't we leave it this way,

then? I would appreciate it if some -- the parties would

submit to me just some kind of, in a letter form, or

something, an update on what you have learned, including

anything you've learned on the subject of childcare, so

that Chief Justice Mulligan or some appropriate person

can contact our good colleagues in the Federal Court to

start talking about it.

MR. MAHONY: We will do that, Your Honor.

THE COURT: Okay.

MR. GRIFFIN: The second piece of agenda item

number two, Your Honor, we've referred to as jury issues.

Your Honor raised that as an issue you would like to

begin discussing and exploring, and for your information

we took up the issue of jury selection, jury impanelment,

at the Tuesday meeting of counsel that I referred to

earlier. One point we agreed on, perhaps quicker than

any other issue in the case so far, is that the last

thing we want to do is not call enough, and we therefore

considered what the number might be that we would proffer

to Your Honor, at least in terms of thinking and planning

based upon what we know, or what information we have

about other experiences and other cases. The goal, I

think, conceptually was to be able to sit a panel of 12

jurors with 6 alternates, given the sense of the expected

length of the case. We shared information on two cases

that were relevant in terms of this kind of issue. First

of all, in terms of the duration of the case, we have the

Minnesota trial experience to draw on. That trial took

75 or so days over four-plus months to try in Minnesota.

It settled before the jury returned, as Your Honor knows.

The second case that is of relevance is the Washington

Attorney General case, a healthcare reimbursement

litigation in the State of Washington that is, I believe,

in the final stages of jury selection now. The last I

heard was that opening statements were scheduled to begin

this coming week in the Washington case. My information

was that the jurors in the pool in the Washington case

were told that that case could go as long as five months

in terms of the issue of hardship or ability to sit for

the panel in that case. And the question is, when

directed to the jurors on that point, five months

sitting, I believe, four days a week in actual trial

time, is what I have been informed. It is too early for

the parties to this case to be able to identify or be

bound by any commitment now as to the expected length of

trial, but several months seems to be at least a

benchmark that we thought we ought to work against in

terms of that issue. I was informed that the panel that

they started with in the Washington case was

approximately maybe even over, 500 jurors to start with.

That was the initial pool, and approximately 50 percent

of those wound up being excused for hardship reasons

before we -- they ever got into issues relating to

personal disqualification or challenges for cause and the

like. Translating that experience into what we might be

dealing with here, it seems hardship may be an issue if

we're talking about a case of several months. That will

present a hardship to people, depending upon how Your

Honor chooses to draw the line as to what is or is not an

excusable situation. Here we have, I think, a unique

factor I can't quite assess with a case of this duration.

The likely number of students that may be in the jury

pool and we're taking a semester away from them, and how

do we cope with that? That may be a particularly unique

issue to us.

Another one we talked about was we do have a

widely used product that people have strong views about,

or that there are either personal experiences or family

experience that may well be disqualifying, and we ought

to allow a fair percentage of those to be factored in in

terms of working back up to what the starting number

ought to be. We also talked about excuses for cause and

tried to predict what the number of challenges might be

as among the parties in a case where we have the eight

Defendants and the Commonwealth. And parsing that out, I

think we came to a number of round about 500 as a number

to begin thinking of in terms of what Your Honor might

need to begin planning for in terms of being able to have

a pool available in February to get started with this.

We also talked about forming a subcommittee to

deal with the matter of a juror questionnaire, which has

been used at least in one or two other cases I'm aware

of, and we obviously need to tailor that for

Massachusetts-specific issues, but that is also in the

works, and is some issue we wanted to at least raise with

you, the concept of us submitting to you at some

appropriate time a questionnaire about issues that we

think might be useful in the selection process. But I

hope that's helpful, but that's the thought we've been

giving to the jury selection and screening process, Your

Honor.

THE COURT: Do you have, or can anyone speak to,

experience in other impanelments on these cases about how

many people did need to be excused for cause, other than

a hardship, and 500 is obviously -- it's a useful target

to have as a number, but there is also an issue of how

many do you go through in a day. We couldn't even fit

500 jurors in here to do them all in one day. It makes a

bad situation worse, moreover it seems to me, to bring in

people and tell them they have to keep showing up for

several more days until I even reach them to go through

their particular questionnaire, or their individual voir

dire, whatever we're doing. If you could get a handle on

the pace, i.e., assume it's a target of roughly 500.

Should I be bringing in 50 a day, 100 a day, to not

unnecessarily annoy, aggravate and tie up jurors by

calling them on a day, and then, as I say, literally not

even reaching their voir dire for some days later. I

think the experience here has been where so many people

are likely to be excused for hardship that one normally

addresses that immediately, and doesn't subject those

people to an unnecessary questionnaire or time consuming

voir dire if it's sort of pointless. It is also true,

and perhaps depending upon where we are doing this, that

jurors who are excused from this case for hardship become

available to my colleagues on other, shorter trials. In

other words, they don't' -- not all 500 necessarily need

to be above and beyond the people that are currently

being summonsed in. There's a way of making a relatively

rapid assessment of who's being excused from the Philip

Morris case based on hardship, and those people just go

back to the regular jury pool and regular service. Is

there any insight on sort of how it was handled in the

other cases that have impaneled that would give us any

sense of, you know, how many jurors do you process per

day, and especially the ones who do survive the hardship

hurdle, where the processing and investigation of that

juror gets into the questionnaire and the substantive

issues. Any sense of ----

MR. GRIFFIN: I did not have the foresight to

ask that question. I know that the process in

Washington, assuming it's still on track for opening

statements this coming week, took approximately three

weeks. I believe it was supposed to begin on the 8th of

September, and opening arguments, opening statements,

will be September 28th or so. That was the target. You

can probably do the division, but I don't think that's

really a precise way of dealing with a pace question. I

did not think to ask that, either, of the experience with

the Minnesota counsel, and I can certainly make inquiries

about that, and supplement the information available to

the Court. If anybody in the courtroom has any

information about it, I'm sure they will speak up to

that.

THE COURT: Let me also, since this morning is

the first I've, you know, been alerted to the possibility

of trying the case somewhere else. It might be realistic

to think in terms of, say even if we are using the new

Federal Court House, that we indeed, as difficult as it

might be, impanel here. Again, simply so that this large

number of jurors who have been otherwise summonsed in,

are available for other uses in the Superior Court and

the Cambridge District Court, and then we would relocate

to whatever our other site is once we have a jury,

because that, I think, does affect the numbers that I

should be giving to the Jury Commissioner. At least off

the top of anybody's head, is there any -- Do you see

foresee any problem with that approach, that if we're

using some other site we nevertheless impanel, find a way

to do the logistics of the impanelment physically here in

this building?

MS. LINDBLOM: Your Honor, Marjorie Lindblom.

On the impanelment issue, I don't have any issue about

that. I have a very little information about what

happened in some of the other trials, and in Florida,

where the jury process was -- had been underway for quite

some time before the case settled, it was an individual

voir dire system, and it was very lengthy. They were

going through at a very slow pace, maybe a dozen a day,

or -- My partner is here, who may know a little bit more.

If I could ask him, too. This is Todd Gale.

MR. GALE: Good morning, Your Honor. Your

Honor, I don't know how many they went through a day in

Florida. I know that in the Florida Attorney General's

case they were -- they spent about three weeks picking a

jury, and not yet impaneled the jury before the case had

settled. In Minnesota I know that the judge was calling

in jurors in groups of 25. I don't believe that he went

through 25 jurors a day, though. My recollection -- I

was there but not involved in the jury selection process,

and my recollection is they were going between 10 and 15

jurors a day, questioning both from the Court and from

the lawyers involved.

MS. LINDBLOM: And in the Minnesota case, I was

there for the first day of jury selection, it was a very

slow process. The questioning was done to the entire

panel first, but the lawyers were doing the questioning.

So a lot of it depends ----

THE COURT: Which we do not have here, as you

know, so --

MS. LINDBLOM: Right. -- on, you know, on who's

doing the questioning and on the Court's inclination on

hardship. There was a dispute about, not just hardship,

but a dispute about the proper standard for cause, and so

all of those things are hard to predict. I did have a

question, and Your Honor may already know how the Court

would like to do this, but would the Court anticipate

questioning a jury box-ful at a time, and then exercising

challenges against those people as a group? Would Your

Honor anticipate doing individual voir dire, you know, so

it's one at a time, with the challenges exercised right

then? Some of that matters, too.

THE COURT: Yes. I would certainly be happy to

hear what the parties would prefer to do, but my

inclination, my inclination, would be, as I say, first

just deal with hardship. Excuse all of those people.

Then presumably by way of some questionnaire, get the

remainder to fill out a questionnaire. Then do an

individual voir dire of those remaining jurors with their

questionnaires in front of you, and separate from the

rest of the panel. And if I were satisfied that the

juror, that juror, should not be dismissed for cause, I

would be requiring the parties to exercise their

peremptory challenges then and there as to that

individual juror. I would not fill the whole box and

then start with peremptory challenges. This is what we

normally do when there's individual voir dire in other

cases, and I think that would be my inclination, but I --

Again, I am certainly receptive to hearing

recommendations based on the experience from trying to

impanel this kind of case in other states.

MS. LINDBLOM: One thought that I had had is

that it might be a good idea to have a short form

questionnaire. It's my understanding there are no

hardship type questions on the standard juror

questionnaire these days because of the one-day, one-

trial system, but perhaps we could have kind of a two-

level questionnaire, the first one half a dozen questions

that go to hardship issues, and only if people get by

that first screening or something do they fill out

another questionnaire, unless the Court thought it would

be easier to do it in large groups.

THE COURT: I think I can do it in a large group

with one question.

MS. LINDBLOM: Okay.

THE COURT: And a show of hands on the hardship

issue.

MS. LINDBLOM: All right. You've just saved us

some work right there.

THE COURT: I think that is -- It's a big

problem because a lot of hands are going up, but I think

it's -- I think that can be managed. Obviously, it's the

design of the questionnaires or questions from me that go

to the issues that would affect bias and that sort of

thing, that are the very problematic ones in this case.

And that's what, obviously, I would want any

questionnaires addressed to, and that would be the sole

subject of any individual voir dire. I wouldn't be doing

that with people who have already not raised their hands

on the subject of hardship.

MS. LINDBLOM: And does the Court really think

that anyone won't raise their hands? But anyway -- Maybe

two ----

THE COURT: Others of my colleagues have

impaneled lengthy trials. It can be done. It just takes

time, as you've learned in these other states.

MS. LINDBLOM: Certainly we could -- You know,

we can get together on this, and obviously work out

questionnaires. They have been worked out in other

cases. One other question I had, which I'll ask as long

as I'm standing, which is does the Court have any firm

views about the schedule for trial that would be

followed? For example, would it be five days a week,

four and a half days a week, 9:00 to 5:00, 8:00 to 6:00?

THE COURT: Our normal -- As you know, if we're

trying full days, which obviously we will do in this

case, our norm is 9:00 is 4:00 in those court sessions

that we have that do full trial days. I would intend to

adhere to that. In all likelihood I would impose a

requirement that Counsel and myself get underway at 8:30.

So there's built in sort of a half hour to do those

issues that always seem to erupt, and I don't want to

keep the jurors waiting. But that we would be underway

with jurors in the box at 9:00, go until 4:00 with a one

hour lunch break, and again, we would have time at the

end of the day also to deal -- each day to deal with

particular problems. To the extent that we need to -

that we face bigger issues that do require an entire day,

half day or more, which in this type of case happens,

that those would simply be done on an ad hoc basis as

needed, telling the jury, "We don't need you tomorrow.

We're letting you go a half day early today, because I

have things to go over with the lawyers." I would not

automatically propose to build those into the schedule,

but just recognize that from time to time during a trial

those kinds of interruptions will be necessary and the

jury will be told.

MS. LINDBLOM: And one other question going to

the jury selection issue. Would the Court anticipate

that challenges for cause would be exercised outside the

hearing of the jury?

THE COURT: Well ----

MS. LINDBLOM: Or at sidebar anyway?

THE COURT: I must say, when I do that kind of

individual voir dire, I usually have all the rest of the

panel held somewhere else, so only the juror that's being

told they're not on the case is the one that hears that

they are being challenged, or even by whom. And

therefore, I don't think there's a need to do it at

sidebar. Like I say, if I'm satisfied the juror does not

need to be dismissed for cause, the question is does the

Commonwealth have any -- wish to exercise a challenge?

Does any Defendant wish to exercise a challenge, and just

do it. If nobody has challenged, then that's a juror,

and if anybody has, that juror is the only one that

knows, and that juror is -- does not return to the panel

to infect the rest of the panel with any discussion about

who challenged them. I do it in murder cases that way.

I think I can do it in your case that way. So that's how

I would handle it.

MR. DAYNARD: Your Honor, Richard Daynard,

Special Assistant Attorney General. My understanding

about the Washington case, and this comes entirely from

news wires type articles, is that the jurors, the jury

pool, was asked to submit questionnaires, I think about

two weeks ago. I think it was two weeks ago tomorrow,

and that the last week was spent on motions involving, I

assume, largely other things, and that this week the

Court's intention was to do the voir dire entirely in one

week, and that's this week. I guess we'll know pretty

soon whether this was successful, and if so how he

managed to do it, but if it could be done that way, that

would, you know -- That would be a good example. There

are obviously bad examples out there, too, that just drag

on and on.

THE COURT: Well what I need is by sometime in

October I have to be communicating to the Jury

Commissioner dates, numbers, how many summonses, extra

summonses, need to go out. So I will -- Any updates you

have on this experience that will help me refine that

instruction I give to the Jury Commissioner would be

helpful. But it's -- The notion that it's going to take

roughly 500 people to winnow it down to 18 is a useful

starting point for me. As I say, any further insight or

information you can provide, literally within the next

couple weeks, that would help -- help me fashion that --

the logistics of that instruction would be helpful.

Okay. Mr. Griffin.

MR. GRIFFIN: Next agenda item, hopping over

number three, Your Honor, since we are not dealing today

with the motion to compel, is the report on expert

discovery.

THE COURT: No other logistical issues that

anyone wants to deal with or raise at this time.

MR. GRIFFIN: I don't think there are. The

technology we did discuss, and we're grappling with in

terms of either side's view of how paperless this case

can be, and how low tech it can be, so that some of the

older ones of us can still function, and we're still

trying to address that.

MR. WEBER: Your Honor, the Commonwealth is

still interested in perhaps having the trial in one of

the federal court houses, but I would ask is there a

person here that we can contact regarding this building,

or the buildings in Middlesex, to see if there is any

other possible alternative?

THE COURT: Well ----

MR. WEBER: What I am looking for is somebody

who knows like how many plugs there are, and you know,

can extra power be brought in, that kind of thing --

those kinds of questions.

THE COURT: Off the top of my head, I can't give

you that name, but let me try and find that out for you.

I think there would be a whole variety of problems in

trying to hold the trial here. This is one of our

smaller courtrooms. Even our big courtrooms just can't

accommodate this number of lawyers, let alone the added

equipment demands, extra jurors. If we have to do it, we

will find a way, but it will be very cumbersome and

difficult. If there is some other site where it could be

done without sacrificing on these other things I would

prefer that. But I will at least try to find out who it

is you would need to be talking to if we end up ----

MR. WEBER: Yes, I'm just thinking in case

everything else doesn't pan out.

THE COURT: Yes. Yes. All right. Item four.

MR. GRIFFIN: Item four, report on expert

discovery, Your Honor. We are proceeding in accordance

with the schedule for expert witness discovery that Your

Honor issued in terms of the amendment to the case

management order. Depositions of Plaintiff's experts are

on going or are being scheduled in and throughout the

month of October. Some have already been taken and

scheduled. Issues have arisen on various fronts relating

to expert discovery, not surprisingly. Counsel have been

conferring on those in an effort to deal with them,

identify what they are, and determine how to resolve them

if we can. Most recently we had that as one of our

agenda items for the discussion at the meeting of counsel

this past Tuesday. Now is not the time to involve Your

Honor in some of those issues. And the reason for that

is, I think Counsel need more time to try to resolve and

meet to work these out, and to assess what to do with the

problems in the event we can't work them out. And most

importantly, to make some decisions about whether we need

the Court's intervention and assistance depending upon

what the problems are.

Let me briefly categorize what they are because

I think in the event we have to come back and see Your

Honor, you'll at least know these are the issues that

seem to take front and center attention. Supplementation

of expert witness disclosure statements. Not

surprisingly, both sides have reserved the right to

supplement depending upon various events or situations.

Both sides, however, also want to come to closure on the

expert situation, particularly as we approach and conduct

depositions. It is an issue for both sides. We are

trying to conceive of ways to deal with it both on a

general level, or maybe the best way to deal with it is

on an expert by expert level depending upon what the

category and speciality or expertise is that it's

involved. And that's an on going process.

The second category that has come up in terms

of an issue is the duplication or even redundancy of

experts. The issue has been flagged. We are going to

try to deal with both on specific experts and as a

concept in terms of trying to weed out the unnecessary

duplication, and to make calls as to who's the number one

expert, who isn't, or what the eventualities are that

make that judgement impossible. We are trying to deal

with that.

For the Defendants there remains an issue with

respect to our inability to replicate the data underlying

the Commonwealth's damages model which has been a problem

for several weeks. Until we can replicate the data, we

can't analyze and deal with the model. It was the

subject of discussion at Tuesday's meet and confer, and I

think that we came out of that basically at a point where

Counsel are committed to try to resolve and identify the

what and why of the problem with replication and to try

to remedy it as quickly as possible because it has impact

down the line. I don't know now what the dimensions of

that problem will be or the magnitude of that problem. I

think we simply need to do more spade work to get a sense

of what we're dealing with in terms of any problems and

how to sort them out. These issues are all being

discussed and will continue to be discussed next week.

One of the things we had in mind is my segway into the

next schedule for us, is that Your Honor said at the last

time, that now that you're going to be in Middlesex, I

think you indicated over the next several months, perhaps

we could meet more frequently than once a month. I would

seize on that and perhaps what we might do, and we talked

about the meet and confer on Tuesday, is pick an earlier

date in October than we otherwise have for our regular

meetings with a view that that is a date when if some of

these expert problems become real problems, they are now,

but if we can't resolve them and we need to have the

Court's assistance, we could come and see you about that

and whatever else needs to be covered by way of the

advance agenda. We had actually identified a Thursday,

and I would proffer that to Your Honor now, October the

8th as a date. I guess that's two weeks out whereby we

could come in and see Your Honor on expert issues to the

extent there are some that need Your Honor's attention,

and other issues that we can identify and alert you to by

way of the advanced agenda. And then probably have a

later meeting in the later part of October to deal with

additional issues. I can tell you now that Thursday the

22nd, if my arithmetic is right, is a problem for several

defense counsel, the 21st, second and third. I would just

proffer for your consideration the last Thursday in

October as a possible date for the second of our meetings

in October, the 29th, as a date. I haven't talked to the

Commonwealth about it, but I did get information that the

earlier Thursday would a problem for several people. But

I think if we can use the 8th, or whatever day is

convenient in that ballpark with Your Honor, it might be

useful to help us to deal with any expert issues we need

to bring to Your Honor's attention.

THE COURT: I'm happy to accommodate you for two

dates in October, although it will take a little more

juggling than I thought. I have been asked to stay out

in Worcester for an extra month. So I won't be in

Middlesex full time until November unfortunately, but

still your request for two dates in October is manifestly

reasonable, and we'll find a way to do that.

I was, I must say, going to be out that first

week in October where I was not going to be anywhere

outside of reach. I don't to delay resolution of the

problem, but if it could be put off to the Tuesday right

after Columbus Day, that's personally a little bit easier

for me. I doubt you could move it up as early as the

prior Friday. That sounds tough.

MR. GRIFFIN: I think the only date to keep in

mind, other than the ones you've just identified, that I

have in mind, and that's one of the reasons the 8th was

sort of fixed. The Defendants have a date of October 15th

to indicate what their disclosures are in response to the

Commonwealth's experts on the damages.

THE COURT: Yes.

MR. GRIFFIN: This problem with replication,

depending on how we sort it out, we may need to see Your

Honor if we can't work it out, or if at working it out we

still feel we're in the crunch in terms of making that

deadline and we can't work out an extension between us,

if we need to talk about an extension time, we may need

to see Your Honor to get that resolved before we run into

that date. So I'm sure, as I stand here, I'm not sure

anybody is sure as they would be standing here now, can

we know the dimensions of the problem by next Friday. If

we do, let me suggest this. If we do, and as soon as we

have some sense of the problem in this regard and have a

handle on what it means in terms of impact or adjustment

of scheduling or our problems, we'll bring that to Your

Honor's attention after conferring with the Commonwealth

about it. Maybe we can do something next week. I just

don't want to represent to Your Honor that we could. I

just -- I don't think anybody knows yet the dimensions

and magnitude of what this may be. But if we can work

around someway that that October 15th date, if it becomes

a problem, we want to make sure we see you about before

we run smack dab into.

THE COURT: Well, let's await further notice on

whether -- If things need to be brought to my attention

or can be brought to my attention even earlier, the

earlier the better is good anyway, if delaying seeing me

until that following Tuesday is going to create a

problem, I can make the adjustments and see you, at least

briefly, on that Thursday the 8th. Personally, I would

prefer not.

MR. GRIFFIN: Why don't we all be as flexible as

we can on this issue, Your Honor. Maybe one of the

things we might do is that week after the Columbus Day

holiday, maybe we can pick a date.

MR. WEBER: Maybe the 12th or the 13th, that's

Tuesday and Wednesday.

THE COURT: Either of those are fine by me.

MR. GRIFFIN: I'm searching for a reaction.

MR. WEBER: Maybe it's the 13th and 14th.

MR. GRIFFIN: Anybody have a problem with the

13th or 14th? Hearing no negatives, Your Honor, I think

depending upon your calendar, I think we could have the

next status conference on either the 13th or the 14th.

THE COURT: Either of those dates are fine.

MR. GRIFFIN: The Wednesday?

THE COURT: Wednesday the 14th is fine. Why

don't we do it then, but everybody, if that's the date we

pick, there's apt to be that there's maybe a few days of

slippage if the upshot of that hearing is going to effect

the Defendant's expert disclosures.

MR. GRIFFIN: I think to the extent that we know

that, we'll know that sooner than the 14th. I think we'll

just have to get in touch with Your Honor and deal with

that. But I think -- I wouldn't want to book Your Honor

and have Your Honor compromise your plans for the week

before until we get a better handle on where we are.

THE COURT: Okay. Just in terms of everybody

else's scheduling, Thursday the 29th is fine by me and in

fact would be a convenient date.

MS. LINDBLOM: I just realized, Your Honor, that

despite having not raised an objection, I remember I had

committed to do something late afternoon on the 14th, and

I'd have to get back to New York to do it. So the 13th is

slightly more convenient for me if it doesn't make any

difference to anybody else. But I could also do it if

we're going to be finished early.

MR. WEBER: Either date is fine.

THE COURT: I'd just assume make it the 13th,

actually, as long as it doesn't pose --

MR. SIMONDS: Your Honor, Mr. Simonds for Philip

Morris. If I could interrupt to ask a question? Is the

Court schedule such that should the end of next week, the

2nd of October prove to be a date on which we have

information we could arrange on short notice to come to

Worcester to report to the Court?

THE COURT: Certainly. Absolutely.

MR. SIMONDS: That's a feasible program for the

Court to do?

THE COURT: Yes. Yes, it's quite feasible, no

problem with that at all. All right, the next item is?

MR. GRIFFIN: I think we can now turn Your Honor

to the last item on the agenda which relates to the

Defendant's request for leave to file reply briefs on the

summary judgement motion. There is no written request in

front of you. I just wanted to include this to bring it

up. It's largely anticipatory, obviously. But as Your

Honor is well aware, there are multiple summary judgment

motions that were filed. As it turned out, none were

filed by the Commonwealth. Several were filed by various

of the Defendants on different issues. The CMO provides

that the oppositions to the summary judgement motions are

due on the 30th of October, and I think we've already

built into the CMO a hearing date on the summary judgment

motions of November 17th. The CMO is silent as to the

right to serve or file reply briefs. In talking with

those who are much more familiar with the issues raised

by those motions, it is in their view highly likely,

although we haven't got the oppositions yet, that there

will be issues that they would like to at least consider

and bring to Your Honor's attention by way of a reply

brief. We don't have a particular proposal now about how

many reply briefs, whether we can consolidate them. We

don't have the oppositions yet, obviously. But I just

wanted to raise that as an issue so that we can build in

some time to deal with it, Your Honor, on that issue.

Once we have the oppositions on the 30th, if we could at

least plan and carve some time out for dealing with it,

Your Honor, so we could indicate to you what our thoughts

were then in a very timely way because we want to

obviously deal with this issue and get reply briefs to

the extent you permit them comfortably in advance of the

November 17th hearing. So it's not a proposal. It's just

a flag, an issue we'd like to carve in if we could see

Your Honor, or talk with Your Honor as soon as we digest

the oppositions and have reactions to any plan and a

proposal to try to present that to you so that whatever

is permitted and however we chose to organize it, we can

get it to Your Honor in time to be useful to you before

the hearing on the 17th of November.

THE COURT: Well, I was somewhat surprised to

see this item on the agenda. The need for reply briefs

is impossible to grapple with when you haven't seen what

you're extensively going to reply to. My expectation was

that the hearing on these motions would be quite lengthy.

And I'll be devoting a day or two to oral argument on

these motions, and that with that, the need for a reply

brief would seem to me to very limited, at most, narrow,

specific, something that was simply to bring to my

attention a particular statute or case of particular

importance that for some reason had not been put in the

initial briefs. So I would not look particularly

favorably on requests for reply briefs, or if I did so,

they would be with very strict page limits. My

recollection of the motions to dismiss and the motions to

disqualify, and things of that nature, were that the

reply briefs and sur-reply briefs were larger than the

initial brief and the opposition, and that is not an

experience I wish to repeat. It did not, in my view, add

to my understanding of the issues, it simply delayed the

time that I was ready to deal with them, and I do not

want that to happen either. I have already read all of

the memos submitted by the Defendants, not necessarily

all of the attached materials, but all the memos. I've

already read them once. And I intend to read the

Commonwealth's oppositions immediately upon receipt, and

be ready for hearing by the 17th at the latest. If in

fact, I feel I've been able to digest the Commonwealth's

oppositions faster, I'm going to have that hearing even

earlier. But again, with the expectation that we'll

spend -- there's a lot of motions, a lot of different

parties that are going to want to be heard. I expect

I'll spend quite some time in that oral argument. I

would, quite frankly, be inclined to say no reply briefs

until we have the hearing. If at the oral argument there

is some concern from a moving party that they feel they

have not adequately articulated in the course of their

lengthy oral argument, or some bringing to my attention a

particular statute, or a particular case that they really

want to submit to me in some written form, we can define

that at the hearing. I would be inclined to go that

route. Although, obviously, I do want be getting into

decisions on the summary judgement motions as rapidly as

possible, particularly as they may impact the upcoming

trial. We should be heavy into trial preparation at that

point. You need to know the answers on these things.

So, let's say I frown on the notion of reply briefs, but

I would suggest that we just go straight into the oral

argument as quickly as I am able to handle it. And if

somebody feels they really need an opportunity to brief

to me a particular point above and beyond what they've

articulated in their initial briefs, their oral argument,

we can set a time frame for you to get a particular items

into me as of the date of the hearing. And I obviously

won't decide that particular motion or that particular

segment of the motion in advance of receiving those

materials.

MR. GRIFFIN: That's fine, Your Honor. Thank

you for the guidance.

THE COURT: Anything else?

MR. GRIFFIN: Not that I have, Your Honor.

MR. WEBER: No, Your Honor.

THE COURT: Okay. I don't think I have anything

else on my own agenda. So I will be looking for updated

information about the trial venue. I'll be trying to

find for you the name of a person who could be talked to

about the nitty gritty logistics of this building. And

I'll await word on whether you need to see me in

Worcester towards late next week. Barring that, I'll see

you on October 13th at 10:00 in a courtroom yet to be

named in this building.

(Whereupon the hearing was concluded.)

C E R T I F I C A T E

I, John M. Lynch, Jr., a Notary Public in and for

the Commonwealth of Massachusetts, do hereby certify that

the foregoing Record, Pages 1 to 47, inclusive, is a true

and accurate transcript of my System Tapes, to the best

of my knowledge, skill and ability.

In Witness Whereof, I have hereunto set my hand and

Notarial Seal the 24th day of September, 1998.

__________________________

John M. Lynch, Jr.

Notary Public

My Commission expires December 21, 2001.