Day 024 - 15 Sep 94 - Page 41
1 is it tried?
2 A. It would be tried at the choice of either party,
3 either the State of Texas or the defendant, before a judge
4 or a jury; either party may elect to bring it.
5
6 Q. Either a judge alone or judge and jury together?
7 A. Yes, your Lordship. Either party may request a trial
8 by jury, and in a State court in any civil matter either
9 party has the right to do so and a jury is mandatory.
10
11 Q. It being a criminal prosecution?
12 A. Criminal -- I believe that it would always be optional
13 for a jury, but I am not a criminal practitioner, I could
14 not call the court that. The only case I can recall
15 having had to take to trial while I was at the Attorney
16 General's office involving false advertising was a matter
17 that did go to the jury. There a physician was accused of
18 creating and marketing an unapproved drug that was, in
19 fact, used as a weed killer and not as a drug, using that
20 as a diet supplement.
21
22 Q. What I really mean is this, it is for the judge, if the
23 judge is trying it alone, or the jury, if they are trying
24 it with the judge, to decide what the advertisement means?
25 A. Absolutely.
26
27 Q. Do the parties call expert witnesses who give their view
28 of what it means, or do the attorneys just put their
29 arguments to the judge or the jury as to what it means?
30 A. Although I have urged that we consider trying cases to
31 a group of 12 or even one consumer experts, and they
32 certainly would have it within their purview to make that
33 determination absent expert testimony, it is the practice
34 (and it always has been our practice) to have expert
35 testimony, present expert testimony, in cases of that
36 type. The court or the jury would be able to consider the
37 expert testimony and accept, reject or modify it as with
38 the testimony of any other witness.
39
40 MR. JUSTICE BELL: Yes.
41
42 MS. STEEL: I was just going to go through the whole series of
43 adverts really, but perhaps it is easier if you could tell
44 us what you consider to be deceptive about the
45 advertisement.
46
47 MR. RAMPTON: My Lord, I should say this, perhaps, at this
48 stage, my present view of the law in this country is that
49 the question whether or not these advertisements, or any
50 of them, are deceptive is a question for your Lordship to
51 decide as the tribunal of fact. I am not going to
52 interrupt while Mr. Gardner gives his opinion because it
53 may go to his state of mind which may again reflect on his
54 credibility as a witness. I will, however, in due course
55 submit that what he says, his opinion about whether or not
56 the advertisements are or are not deceptive is something
57 that your Lordship must ignore and make your Lordship's
58 own mind up about in due course.
59
60 MR. JUSTICE BELL: Yes. What I suggest you do is -- you can do
