Chapter 17Experts' Reports

Abstract

There was minimal news about our case getting out of the Department of Justice, and the Department's political management liked it that way. Certainly, the defendants liked the lack of stir about the case. All of us on the Tobacco Litigation Team knew that at least one of the expert reports would have a major impact, since it contained our disgorgement calculation and would announce, for the first time, that we were seeking a $280 billion disgorgement of the ill‐gotten gains from the cigarette companies for addicting young smokers. Our calculation was based on our experts' work, and we had worked with them for many months to understand their assessment. There are two kinds of witnesses who may testify at a trial: fact witnesses and expert witnesses. A fact witness tells the story of what happened based on events he or she observed or of which he or she was a part. A fact witness is not supposed to offer opinions, interpret what others did, or offer explanations as to why certain things may have been the case. Under the Federal Rules of Evidence, which the federal district court judge is required to follow, that kind of testimony would be objectionable and impermissible from a fact witness. A fact witness is all about what Joe Friday on the old television show Dragnet always wanted someone to provide: “just the facts.”