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

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