THE LOEWEN GROUP, INC. and RAYMOND L. LOEWEN, v. THE ...

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proceeding) and another lawyer at his firm, contains (i) the lawyers' summaries of their interviews with five of the rendering jurors (id. at 1146-91); and (ii) Mr. Corlew's analysis of those interviews and the jury selection process. Id. at 1126-38 ("Corlew Report") (collectively "Corlew documents"). The United States has shown, through the statement of Professor Neil Vidmar ("Vidmar Statement"), that the jury interview memoranda, taken as a whole, "provide no credible evidence to support claimants' allegations of improper jury bias, jury incompetence, or that the trial improperly 'inflamed the passion' of the jury." See Vidmar Statement at 1. In fact, as Professor Vidmar explained, "the interviews support an opposing view: that is, the data indicate that the jury followed the judge's instructions on the law and reached a verdict based on the evidence presented at trial." See id. While claimants' take issue with Professor Vidmar's conclusions, they offer no expert testimony in rebuttal. 30 Nor do claimants make any coherent attempt to grapple either with Professor Vidmar's analysis, or the vast majority of the interviewed jurors' reported comments demonstrating that the jury, rather than being swayed by improper prejudice, simply assessed Loewen's evidence and witnesses as not credible. See Vidmar Statement at 27-39. 30 Professor Vidmar is an internationally-recognized expert in civil juries (including juror prejudice) who, through 25 years of research, has gained unprecedented insights into the behavior and performance of civil juries. See Vidmar Statement at 3-5; see also U.S. App. at 1348. While Sir Ian Sinclair, one of claimants' international law witnesses, discusses the juror interviews in his opinion (see Sinclair Op. at 15-26), he does not purport to be a civil jury expert, or, indeed, to have any experience interviewing, surveying, or observing civil jurors, or otherwise researching their behavior. See also Second Opinion of Christopher Greenwood QC ("Second Greenwood Op.") (attached hereto at Tab A) at 96. 30
More fundamentally, claimants' discussion of the Corlew Report and juror interview memoranda is misleading (if not outright inaccurate) in a number of critical respects. For example, in their Joint Reply, claimants: ! fail to attribute statements from the jury interviews to particular jurors, obscuring that most, if not all, of the derogatory statements on which they rely are the purported comments of a single juror – the lone dissenter from the verdict – discussing other members of the jury panel with whom she disagreed and from whom she was estranged; 31 ! inaccurately describe statements and observations of the lone dissenting juror as "admissions" of other jurors; 32 ! repeatedly attribute statements or observations of one juror to "the jurors" or "the jury" generally; 33 31 See, e.g., Joint Reply at 25 (block quote in 48 attributable to interview of dissenting juror); id. at 42 (all quotations in 85 attributable to same); id. at 90 (all but the last two quotations in 190 attributable to same); id. at 105 (all quotations in the first sentence of 225 attributable to same). The lack of juror identification is particularly confusing when claimants, in the same sentence, combine quotations from interviews of different jurors, such as the dissenting juror and another member of the panel. See, e.g., Joint Reply at 68 (third sentence of 142). 32 For example, claimants assert "[t]he jurors themselves admitted that Gary's nationalistic appeals affected their verdict." Joint Reply at 25. But the document claimants cite reflects only the dissenting juror's reported impressions of the other jurors. Similarly, claimants assert the foreman (Mr. Millen) "admitted" he disliked Canadians. Joint Reply at 10. But again, the cited document reflects only the dissenting juror's (erroneous) impression of the foreman. See U.S. App. at 1148. 33 See, e.g., Joint Reply at 25, 42, 47-48, 51, 61, 90, 99-100, 105, 128, 129. To take one example, claimants repeatedly assert that "the jurors freely admitted" they were seeking to "destroy" Loewen (or some variation of that charge). See Joint Reply at 47, 50, 129. The actual statement – which Mr. Corlew did not even include in his Report – allegedly was made by the dissenting juror, in reference to a single other juror. See U.S. App. at 1147. 31
Page 1 and 2: IN THE MATTER OF: THE LOEWEN GROUP,
Page 3 and 4: III. CLAIMANTS CANNOT OVERCOME LOEW
Page 5 and 6: C. Claimants Fail To Establish A Vi
Page 7 and 8: I. INTRODUCTION This arbitration co
Page 9 and 10: claimants' invitation to serve as a
Page 11 and 12: A. Claimants Entirely Ignore The Se
Page 13 and 14: important basis for the jury's ulti
Page 15 and 16: unfair competitor, and to garner sy
Page 17 and 18: "completely ridiculous." Millen Dec
Page 19 and 20: O'Keefe's explanation that Riemann'
Page 21 and 22: Mr. Blackmon, who was on Loewen's t
Page 23 and 24: 5677 (emphasis added). This was esp
Page 25 and 26: For example, the O'Keefe plaintiffs
Page 27 and 28: within his rights to elicit testimo
Page 29 and 30: in the present proceeding, claimant
Page 31 and 32: O'Keefe, of course, was absolutely
Page 33 and 34: F.3d 1312, 1314 (9th Cir. 1994) (co
Page 35: Loewen's monopolistic practices, an
Page 39 and 40: conducted by Loewen-retained lawyer
Page 41 and 42: (Federal Judicial Center 1995). 37
Page 43 and 44: In response, claimants contend that
Page 45 and 46: a single citation to the record to
Page 47 and 48: In short, since the United States f
Page 49 and 50: as is alleged here, the cost of a s
Page 51 and 52: Trost at 4. potentially ruinous jud
Page 53 and 54: Claimants ignore the international
Page 55 and 56: To rise to the level of a general p
Page 57 and 58: Claimants ignore this distinction e
Page 59 and 60: . The "Plain Error" Rule Is Foreclo
Page 61 and 62: (same). 60 See also Miss. R. App. P
Page 63 and 64: Moreover, even if the obligation of
Page 65 and 66: In any event, as the record makes c
Page 67 and 68: injuries, thus eliminating any poss
Page 69 and 70: In fact, the Mississippi courts wer
Page 71 and 72: though the United States was not a
Page 73 and 74: To support its novel causation theo
Page 75 and 76: cause is a necessary prerequisite o
Page 77 and 78: transactions where insurers assume
Page 79 and 80: settle the litigation. 85 As the Ge
Page 81 and 82: (quoting Detlev F. Vagts, Coercion
Page 83 and 84: after the United States filed its C
Page 85 and 86: elying largely on authorities invol
Page 87 and 88:
Supreme Court, the Court would have
Page 89 and 90:
Mississippi counties where the judg
Page 91 and 92:
in any foreign state where O'Keefe
Page 93 and 94:
A. NAFTA Article 1121 Is Irrelevant
Page 95 and 96:
econsidered, does not of itself amo
Page 97 and 98:
B. Even If The Local Remedies Rule
Page 99 and 100:
In particular, Mr. Broches expressl
Page 101 and 102:
If there were any doubt on this poi
Page 103 and 104:
countless remarks of O'Keefe's coun
Page 105 and 106:
In fact, jurisdictions other than M
Page 107 and 108:
of different nationalities - "litig
Page 109 and 110:
appealed to nationalistic biases by
Page 111 and 112:
"[w]hile preaching homespun values
Page 113 and 114:
justice, irrespective of the local
Page 115 and 116:
claimants, not the United States, w
Page 117 and 118:
Article 1105] to suggest a departur
Page 119 and 120:
more than the handful of "denial of
Page 121 and 122:
Where the judicial action in questi
Page 123 and 124:
privately reported to Loewen (his c
Page 125 and 126:
damages. 136 Because the initial ve
Page 127 and 128:
said, what they did or why they did
Page 129 and 130:
awards in a wide range of circumsta
Page 131 and 132:
The contention that the $35 million
Page 133 and 134:
epresent only a fraction of even th
Page 135 and 136:
anything other than a genuine (and
Page 137 and 138:
instrument." Joint Reply at 112-13
Page 139 and 140:
discriminatory bond requirement. Ga
Page 141 and 142:
Loewen cited. A1075-78. While Judge
Page 143 and 144:
A full bond was especially importan
Page 145 and 146:
inaccurate, as it allegedly misquot
Page 147 and 148:
Given that Loewen's own evidence su
Page 149 and 150:
law does not constitute an unjust j
Page 151 and 152:
established rules of law. Claimants
Page 153 and 154:
out in this Agreement." NAFTA art.
Page 155 and 156:
has been recognized. 169 See id. at
Page 157 and 158:
under customary international law t
Page 159 and 160:
Metalclad Corp. (U.S.) v. United Me
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