Day 242 - 29 Apr 96 - Page 44
1 ground, maybe with a new slant or maybe not, but the
2 Plaintiffs should not be allowed to reopen a part of the
3 case that has been canvassed before, and especially not at
4 this stage in the case.
5
6 The second point of his three issues was about McDonald's
7 food and whether some people eat a significant amount of it
8 to affect their diet or whatever. That has largely been
9 canvassed before. We have Mr. Fairgrieve who is related to
10 that and coming back. There is no need to call new
11 witnesses on that subject who have not previously had
12 statements put in.
13
14 We then get to the very real risk matter, which I have
15 already touched upon, and I suppose I have already put our
16 point on that. Either their admission removed an issue in
17 the case, which would be anything that would come under the
18 umbrella of the original issue in dispute between their
19 pleading and ours, or it did not because the issue of very
20 real risk was not in fact pleaded at all in which case it
21 should not be allowed to become an issue, even though it is
22 quite valid to have included it in the meaning of any
23 section of the leaflet. Obviously it is for you to decide
24 what the meaning is, but that does not mean to say that it
25 necessarily becomes an issue if it was not an issue
26 beforehand because, obviously, in fact your ruling on
27 meanings are largely going to come at the end and it will
28 not mean that a new issue has come into the case that was
29 not dealt with before because all the evidence will have
30 closed. So this unusual circumstance of having a meaning
31 identified before the end of the evidence should not allow
32 a new issue to come into the case that was not specifically
33 pleaded by the Plaintiffs.
34
35 Of course, if it had been specifically pleaded by the
36 Plaintiffs, it would have been specifically pleaded by the
37 Defendants and I have every confidence in our case on this
38 issue that heart disease, high blood pressure and obesity
39 are probably the most substantial causes of disease and
40 death in this country and, therefore, affecting millions of
41 people and it is certainly not something like the risk of
42 being struck by lighting when you walk across the field.
43
44 But having said that I feel that our case is absolutely
45 solid on it, it does not mean to say that there should be a
46 need to call further evidence on an issue that in fact is
47 not merely an issue, was not an issue as defined by the
48 Plaintiffs' pleadings.
49
50 My position is that although Dr. Naismith's statement is
51 interesting, I personally, and we in general, are pretty
52 exhausted at this stage in the case, and the need to deal
53 with a whole range of matters that have already been
54 canvassed before, and cross-examine a new witness, and
55 possibly go back to our witnesses to get instructions about
56 cross-examination of this, and that kind of stuff, I think
57 would be an unnecessary burden which should not be allowed
58 and, as I have said, most of the stuff has already been
59 canvassed before in any event.
60
