EVIDENCE
KNAPP
SPRING, 1997
FINAL EXAMINATION
INSTRUCTIONS
1. This final exam is a three hour exam. There are three parts of the exam, each weighted equally. You need to answer all three parts, and all questions in each part.
2. All three parts of the exam are based on the Poulson v. Dolbaun Tobacco Company fact scenario distributed in class. Additional facts in the Poulson scenario have been incorporated into the exam in each of the three parts.
3. This is an open book exam. You may refer to any written materials you wish while writing your answer.
4. Part One of the exam consists of three essay questions.
5. Part Two consists of two questions about the document distributed in class (a copy of which is attached).
6. Part Three consists of twelve short answer questions. WRITE THE QUESTION NUMBER AND YOUR ANSWER IN YOUR BLUEBOOK, NOT ON THIS EXAM. You should be able to answer each question with one or two SHORT sentences.
7. In analyzing the memo and other potential evidentiary problems you may face at trial, please assume that:
a. This case will be tried before Judge Willard Regle, who is notorious for his rigid adherence to the Federal Rules of Evidence. You know that Judge Regle will take every evidentiary objection very seriously and apply the rules of evidence rigorously.
b. There are not meant to be any issues involving jurisdiction, Constitutional law, contract law, tort law, Rule 803(24), presumptions, burdens of proof, judicial notice, or attorney-client privilege lurking in these questions. Consequently, do not write about these issues on the exam.
FACT SCENARIO: POULSON v. DOLBAUN TOBACCO COMPANY
[This information is identical to the material distributed in class.]
Phillip Poulson is the plaintiff in a lawsuit against Dolbaun Tobacco Company. Mr. Poulson has filed an action in federal court against Dolbaun alleging that Dolbaun was directly responsible for the death of his spouse. Poulson alleges that his spouse smoked Dancers' cigarettes, a brand manufactured by Dolbaun, from the time she was seventeen to the time she died three years ago at the age of forty-seven. As a direct result of her smoking, Mr. Poulson contends, Ms. Poulson contracted lung cancer and died. In his lawsuit, Poulson alleges that Dolbaun knew that its cigarettes were dangerous and could cause lung cancer but failed to adequately warn consumers of that fact. Poulson also alleges that Dolbaun knew that its cigarettes were particularly dangerous to women, but that it knowingly and wrongfully marketed the Dancers' brand to women in spite of this knowledge.
Dolbaun Tobacco is a North Carolina company that has been producing and selling cigarettes and other tobacco products for nearly a hundred and fifty years. Dolbaun is one of the smaller tobacco companies, but it has nonetheless spared no expense in the defense of this lawsuit. Dolbaun has asserted a variety of defenses to Poulson's claims. First, Dolbaun argues that cigarettes do not cause lung cancer and second, that even if they do, there is no reason to suppose that Dancers' brand cigarettes are any more dangerous than any of the other dozens of brands on the market. Third, Dolbaun contends that even if it can be shown that Dancers' brand cigarettes do cause cancer, Dolbaun had no knowledge of this fact and certainly did not hide this fact from consumers. Fourth, Dolbaun denies that it "targeted" Dancers' brand cigarettes to women. Fifth, Dolbaun will argue that Ms. Poulson smoked a variety of other brands of cigarettes. Finally, Dolbaun contends that Ms. Poulson knew she ought to stop smoking, and that Dolbaun cannot be held responsible for her own decision to keep smoking.
Given the amount of time and money that Dolbaun poured into defending the case, Poulson's lawyer was not only relieved but amazed when the lawsuit survived summary judgment. This will be the first case of its sort in this jurisdiction to make it all the way to trial. Poulson expects that Dolbaun will have several high-priced expert witnesses testify on its behalf, call numerous witnesses to attempt to prove that Ms. Poulson smoked some other brand of cigarettes, and introduce stacks of documents intended to show that Dolbaun had no reason to know that Dancers' brand cigarettes were dangerous.
The plaintiff's case, in contrast, will rest on the testimony of relatively few witnesses. To prove that Ms. Poulson smoked Dancers' and was unable to quit, plaintiff's counsel will call Mr. Poulson and his son, who will both testify about Ms. Poulson's smoking habits. To prove that Ms. Poulson's death was smoking-related, plaintiff's counsel intends to call Ms. Poulson's treating physician, Dr. Stella Carruthers. Dr. Carruthers will testify that Ms. Poulson was a patient of hers for many years and that, in her opinion, smoking caused her lung cancer. Plaintiff's counsel is a little concerned that this testimony may not be admissible. Dr. Carruther's isn't a research scientist, but she is highly educated, well-acquainted with the scientific literature concerning the link between cancer and smoking, and she is a practicing oncologist who has treated hundreds of cancer patients.
Plaintiff's counsel intends to rely heavily on documents uncovered during discovery to prove that Dancers' cigarettes cause lung cancer and that Dolbaun has known this for decades. Dolbaun's own files yielded documents written by one of their own research chemists, Nicholas Corrienda, alerting managment that recent tests demonstrated that Dancers' brand cigarettes were particularly dangerous for young women to smoke. Unfortunately, Corrienda died two years ago, and plaintiff's counsel is concerned it may be difficult to get some of these documents admitted.
Plaintiff's counsel is particularly anxious to use a document produced during discovery that was written not by anyone at Dolbaun, but by the Director of the Tobacco Association, a trade association that provided information about tobacco to American producers. In 1968, the president of the Tobacco Association sent the presidents of all American tobacco companies a memo concerning the industry response to reports linking smoking to a wide variety of health problems. A copy of that memo is attached. No copy of the research report referred to in the memo has ever been found. Unfortunately, the Director of the Tobacco Association now lives in Antigua and refuses to appear to testify at trial. Not surprisingly, Daniel Dolbaun, the President of Dolbaun, claims he has no memory of ever receiving the memo. Plaintiff's counsel has told you that it is important to Poulson's case that the document be admitted to help prove both that Dolbaun's cigarettes were deadly and that Dolbaun knew that to be the case. Reading over the document you recognize that it presents a wide variety of evidentiary problems.
In addition to the problems with the Tobacco Association memo, you are sure that there are a number of other evidentiary issues that will arise at trial. Dolbaun plans on calling several witnesses to testify about Ms. Poulson's smoking habits, and plaintiff's counsel would like to exclude that testimony if possible (maybe it's hearsay?). Plaintiff's counsel has also learned that one of Dolbaun's key witnesses is a convicted felon. Isn't there some rule that allows impeachment with a criminal conviction?
PART ONE
Plaintiff's counsel has been preparing for trial and has encountered the following evidentiary problems:
(Twelve Points). One of the witnesses that plaintiff will call is Dr. Stella Carruthers, the oncologist (cancer specialist) who treated Nancy Poulson for lung cancer. Dr. Carruthers has been an oncologist for twenty years and treated hundreds of cancer patients. She was Nancy Poulson's treating physician throughout Ms. Poulson's long bout with lung cancer. Dr. Carruthers received her M.D. from Johns Hopkins. She is the author of a paper entititled "The Diagnosis and Treatment of Smoking-Related Lung Cancer," and published in the New England Journal of Medicine. Dr. Carruthers will testify about Ms. Poulson's illness and treatment. Dr. Carruthers is also prepared to testify that in her opinion smoking contributed to and, in fact, caused Ms. Poulson's lung cancer. Dr. Carruthers bases her opinion on, first, her lengthy experience treating lung cancer patients; second, her familiarity with the scientific literature linking smoking with lung cancer; and third, a conversation she had with Dr. Renaldo Pickens, a leading expert in the study of smoking-related tumors. Like many oncologists, Dr. Carruthers talks with other specialists to confirm her diagnoses. In this case, Dr. Carruthers will testify that Dr. Pickens told her that "it was a scientific certainty that smoking caused Ms. Poulson's lung cancer." Dolbaun will object to all of Dr. Carruthers' testimony about the cause of the lung cancer on the grounds that the testimony is based on hearsay and is improper expert opinion because it is unreliable. Dolbaun's own experts will testify that it is not possible for a treating oncologist to determine what caused a particular case of cancer. What arguments should plaintiff's counsel make to persuade the judge to admit Dr. Carruthers' expert testimony on causation? Are these arguments likely to be successful?
(Twelve Points) Plaintiff's counsel will call Phillip Poulson to testify about Ms. Poulson's smoking. He will testify that his wife "almost always smoked Dancers' cigarettes" and that "she tried dozens of times to quit smoking but never could quite manage to break the habit." In all likelihood, counsel for Dolbaun Tobacco will try to impeach Mr. Poulson by suggesting, on cross-examination, that Mr. Poulson's testimony is a recent concoction that he invented after he decided to sue Dolbaun Tobacco and that he is only telling this story to improve his chance of receiving a substantial amount of money from any jury verdict. Counsel for Dolbaun may try to use statements from Mr. Poulson's deposition to impeach his trial testimony. Once, during his deposition, Mr. Dolbaun stated "My wife usually smoked Dancers', but I did see her smoke other brands as well." At another point, he said "Nancy liked smoking. I wish she had wanted to quit." Can plaintiff's counsel preclude Dolbaun from impeaching with the statements in the deposition by objecting that they are hearsay? If Dolbaun uses these statements to impeach Mr. Poulson, plaintiff's counsel would like to have Bill Carson testify. Mr. Carson will state that he had two conversations with Phillip Poulson, one before and one after Ms. Poulson was diagnosed with cancer, during which Mr. Poulson said, "Nancy smokes those damn Dancers' cigarettes all day and night. She's tried to quit at least ten times and she just can't." When Dolbaun's counsel objects that these conversations are hearsay, what argument can plaintiff's counsel make to persuade the judge to admit the testimony? Are those arguments likely to be successful?
(Twelve points) Plaintiff's counsel also plans on having Thomas Poulson testify. Tom is the only child of Phillip and Nancy Poulson. He is 23 and will also testify about Nancy Poulson's smoking habits, her attempt to quit, and her illness. Unfortunately, Tom has one criminal conviction. About eighteen months ago, he was convicted of felonious destruction of property. Tom participated in a demonstration at Dolbaun Tobacco, protesting Dolbaun's new promotional campaign for Dancers' cigarettes. Several other demonstrators were also arrested, but Tom was the only one charged with destruction of property. Tom set fire to a billboard displaying a Dancers' advertisement during the demonstration. Tom refused to plead to a lesser charge, and he insisted on representing himself at his trial. He took the stand, testified about the demonstration, and the jury convicted him. Tom was lucky. He could have been sentenced to up to four years in prison. Given his record, however, the judge fined him $500, ordered him to do two hundred hours of community service, and put him on probation for two years. Plaintiff's counsel would like to know whether there is any way to keep Dolbaun from using this conviction for impeachment purposes. What arguments can be made to exclude this conviction? Are these arguments likely to be successful?
PART TWO
Plaintiff's counsel would like to introduce the 1968 memo written by Richard Grove, the Executive Director of the Tobacco Association. Mr. Grove now lives in Antigua and has steadfastly refused to testify about the memo; Dan Dolbaun, president of Dolbaun Tobacco, claims he has no recollection of ever receiving the memo; and no copy of the lab report mentioned in the memo has ever been found. Plaintiff's counsel would nonetheless like to introduce the memo and use it to prove that Dolbaun's cigarettes were dangerous and that Dolbaun Tobacco was aware of that fact.
Please answer each of the following two questions:
1. (Eight points) What is the best argument plaintiff's counsel can make to overcome objections that the memo itself (as opposed to the statements contained in the memo) is hearsay? What can you do to lay foundation for the memo Mr. Grove wrote?
2. (Twenty-eight points) Assume you are successful in laying foundation for the memo itself. At this point, the lawyer for Dolbaun Tobacco makes the following objection at sidebar:
"Judge, we strenuously object to the admission of this memo. Even if the memo itself is not hearsay, it still presents a variety of evidentiary problems. First, the memo contains hearsay and even hearsay within hearsay! Paragraphs two, three, four, and five all contain information based upon assertions made by people other than the author of the memo. Second, paragraphs two and three contain statements about a written report that plaintiff has never been able to prove existed. Those statements should be stricken because they violate the best evidence rule. Third, paragraph four contains statements that are prejudicial to Mr. Dolbaun because they are impermissible character evidence. Fourth, many of the statements in the memo are simply unreliable and would confuse the jury and create unfair prejudice to my client. Finally, the last paragraph should be stricken in its entirety. There is no evidentiary rule I am aware of that would permit the plaintiff to cast unfair aspersions on my client by suggesting that Dolbaun Tobacco, or anyone else, destroyed the alleged report referred to in the memo."
Judge Regle nodded his head gravely and says, "Counsel, I am concerned about the issues you raise." He then turns to plaintiff's counsel and says, "I do see a lot of evidentiary problems with this memo, and I will strike any portion of the memo I think is inadmissible under the Federal Rules. Let's go through the memo paragraph by paragraph, and you tell me what parts you believe are admissible and why." Assuming that plaintiff's counsel wants to get in as much of the memo as possible, what are the best arguments for admissibility? Please include any arguments about evidentiary issues that the judge or opposing counsel may have missed. Are these arguments for admissibility likely to be successful?
PART THREE
At the trial, several different witnesses testified during the plaintiff's case-in-chief and the defendant's case-in-chief. These twelve questions consist of twelve objections made during testimony at trial. Please read through the questions sequentially since sometimes a series of questions will all refer to the direct and cross-examination of the same witness. Each question is worth three points. Please answer each question by explaining in ONE OR TWO SHORT SENTENCES how Judge Regle should rule on the objection made, and why the Judge should make that ruling. Remember that this case is being tried in front of Judge Willard Regle, a notorious stickler for strict adherence to the Federal Rules of Evidence:
1. The first witness to testify for the plaintiff is Mr. Poulson. During his direct examination, he begins to describe a commercial for Dancers' cigarettes that he and his wife watched on television before she began smoking Dancers'. According to Mr. Poulson, the commercial described Dancers' as the "cigarettes made for women." Defense counsel objects, "Hearsay!" How should the judge rule? Why?
2. Defense counsel also objects to Mr. Poulson's description of the commercial on the grounds that it violates the best evidence rule. How should the judge rule? Why?
3. During his direct examination, Mr. Poulson testifies that about a year and a half before his wife's death, he noticed that she was coughing uncontrollably in the morning and having trouble breathing when she climbed stairs. He states, "I think this must have been about the time she first got the cancer." Defense counsel objects to all this testimony, "Improper opinion!" How should the judge rule? Why?
4. During his direct examination, Mr. Poulson testifies that his wife made a final attempt to quit smoking in 1993. Mr. Poulson is prepared to testify that his wife told him "I am trying my hardest to quit, but I just can't." Defense counsel objects, "Hearsay!" How should the judge rule? Why?
5. During the plaintiff's case-in-chief, Dr. Stella Carruthers takes the stand. Dr. Carruthers is ready to testify that when Nancy Poulson first came to her for treatment, Ms. Poulson told her, "I have smoked two packs of Dancers' cigarettes every day for the last twenty years." Before she can offer this testimony, defense counsel objects, "Hearsay!" How should the judge rule? Why?
6. During the defense's case-in-chief, Dolbaun Tobacco calls Polly Ferguson to the stand. Ms. Ferguson lived next door to the Poulson's throughout the 1970's. As part of her direct examination, Ms. Ferguson is prepared to testify "In 1975, I told Nancy Poulson that she should quit smoking because it would kill her." Before she can offer this testimony, plaintiff's counsel objects, "Hearsay!" How should the judge rule? Why?
7. Also during her direct examination, Ms. Ferguson is prepared to testify that during that same conversation, Nancy Poulson said to her, "I know I should quit, and I could. I'm just not ready to give up cigarettes yet." Before she can offer this testimony, plaintiff's counsel objects, "Hearsay!" How should the judge rule? Why?
8. During Ms. Ferguson's cross-examination, plaintiff's counsel asks, "Isn't it true that last week you told an investigator from our office that you never had any conversation with Nancy Poulson about smoking?" Defense counsel objects, "Hearsay!" How should the judge rule? Why?
9. During its case-in-chief, defense counsel calls Daniel Dolbaun, the long-time President and CEO of Dolbaun Tobacco, to the stand. During his direct examination, Mr. Dolbaun testifies that he instructed all employees to send him copies of any report concerning the safety of Dolbaun products. He states that since he never received a copy of any report or other information suggesting that Dancers' cigarettes were particularly dangerous for women, he knows no one at Dolbaun ever received such a report. Plaintiff's counsel objects, "Lack of foundation!" How should the judge rule? Why?
10. During the cross-examination of Mr. Dolbaun, plaintiff's counsel asks, "During mediation of this lawsuit you admitted that your cigarettes might have had something to do with Ms. Poulson's cancer, didn't you?" Defense counsel objects, "Hearsay!" How should the judge rule? Why?
11. Assume that instead of objecting to the above question on hearsay grounds, defense counsel instead objects, "Irrelevant!" How should the judge rule? Why?
12. During cross-examination of Mr. Dolbaun, plaintiff's counsel asks, "Sir, didn't you personally order one of Dolbaun's own research chemists to report false experiment data so that a study of Dancers' cigarettes would appear more favorable to the company?" Defense counsel objects, "Improper impeachment!" How should the judge rule? Why?
THE TOBACCO ASSOCIATION
Tobacco--Rich, Satisfying, and Oh, So Cool…
TO: THE PRESIDENTS OF AMERICAN TOBACCO COMPANIES
FROM: RICHARD GROVE III, EXECUTIVE DIRECTOR
DATE: JANUARY 29, 1968
Gentlemen, I'm sending you this memo because it has been our custom to make sure that everyone in the industry has access to the latest information on the research we are doing here at The Tobacco Association concerning alleged health problems associated with tobacco. I'd ask that you all read this memo with care.
In the past several years, there has been an increased amount of publicity about the health risks of smoking. At your direction, the Tobacco Association has been conducting its own studies on the relationship between smoking and lung cancer. Our study is now finished and the news is bad: our research labs have confirmed that there is a clear link between heavy smoking and lung cancer.
I have the only copy of this research report in front of me. The report paints a grim picture. Some of the brands that are on the market now appear to be especially dangerous. For example, our test results suggest that female smokers of Dancers' brand cigarettes are particularly at risk of developing lung cancer. It may be possible to quarrel with some of these results, but the bottom line is clear: We have a problem.
I know that this issue is a controversial one. You remember that at our last industry meeting, Dan Dolbaun told us that we all had to stick together and continue to deny that tobacco causes health problems. I recall Dan saying that his company was "prepared to stick to this story until the next century--whether it's true or not." Well, we all know that Dan is tough enough to put his money where his mouth is and we all know that he's not the kind of man that would let the truth stand in his way (just kidding, Dan!). I think his point is a good one. We need to continue to deny that there is a problem.
I have not shared this information with anyone else at the Association other than Martin Forstrom, our long-time director of marketing. Martin reminded me that several of you had told him that you knew it was only a matter of time until we faced these problems. Martin's advice is the same as it always is--the only way to take the consumer's mind off these health issues is advertising and more advertising.
I will send all of you a copy of this research report in the next couple of days. Needless to say, it would be catastrophic if a copy of the report wound up in the hands of the government or the press. For that reason, I am asking all of you to destroy the report after you read it. It would probably be wise to destroy your copy of this memo as well.