In the Matter of the Complaint Against

W. G. CHARLES COMPANY
THE ROBERTSON-TAYLOR COMPANY
INTRA-MEDIC FORMULATIONS, INC.
CONNOR-FREEMAN LABORATORIES, INC.
CUSTOMER SERVICES DISTRIBUTION,
CENTER, INC.
MITCHELL K. FRIEDLANDER
HARRIS FRIEDLANDER
MICHAEL MEADE Respondents.

P.S. Docket No. 19/104;
P.S. Docket No. 19/162;
P.S. Docket No. 19/182

05/17/85

Bernstein, Edwin S.

DECISION AND ORDER ON RESPONDENTS' APPLICATION TO
CALL DR. MARCIN KROTKIEWSKI AS A SURREBUTTAL WITNESS

On May 3, 1985, Respondents filed an application to take the testimony of Dr. Marcin Krotkiewski by written interrogatories. The application stated that Respondents would prefer to present Dr. Krotkiewski in person but Dr. Krotkiewski could not come to the United States from his home in Sweden until approximately June 17, 1985.

Dr. Krotkiewski is the author of a report of a study entitled, "Effect of Guar Gum on Body Weight, Hunger Ratings and Metabolism in Obese Patients," which is a pivotal piece of evidence in Docket Nos. 19/104 and 19/162 (CX 3-64). Respondents argue that the study supports weight loss claims for their guar products while Complainant argues that the study is not sufficiently probative. Respondents considered bringing Dr. Krotkiewski from Sweden to testify during their case-in-chief but decided not to.

One of Respondent's witnesses, Dr. Thomas M. S. Wolever, who testified on April 9 and 10, 1985, stated that since publishing CX 3-64, Dr. Krotkiewski published follow-up findings which Dr. Wolever characterized.

On April 18, 1985, Complainant recalled Dr. Ayers as a rebuttal witness. Dr. Ayers' direct testimony on rebuttal was extremely brief. It occupied the equivalent of five transcript pages and consisted of answers to 18 questions. Dr. Ayers testified that he telephoned Dr. Krotkiewski to obtain a copy of Dr. Krotkiewski's follow-up study report and was told that he could obtain a copy locally from a Dr. George Vahouny. Dr. Ayers requested a copy from Dr. Vahouny and Complainant introduced into evidence a copy that was obtained.

After reading the report, Dr. Ayers affirmed his earlier testimony that lej guar, taken in two daily doses of ten grams each will not cause weight loss in virtually all users without a calorie restricted diet or exercise. He pointed to language in the report that he believed supported that conclusion. Dr. Ayers also testified that Dr. Krotkiewski stated that the follow-up study included a 1000 calorie diet and Dr. Ayers pointed to language in the report in support of that contention.

Dr. Ayers rebuttal testimony, after both parties completed their cases-in-chief, precipitated Respondents' request to call Dr.Krotkiewski as a witness. On May 6, 1985, Respondents filed a list of 17 proposed questions to be asked Dr. Krotkiewski by written interrogatories.

In a written response filed May 10, 1985, Complainant opposed the application and objected to the questions. The response argues that the questions are all beyond the scope of Dr. Ayers very limited direct testimony on rebuttal and that some of the questions can only be justified as a challenge to Dr. Ayers credibility in connection with his rebuttal testimony. The response points out that many of the questions are poorly drafted and problems would result in understanding responses to many of the questions.

After careful consideration of Respondents' application, Respondents' proposed questions, and Complainant's response, it is ORDERED:

1. Respondents will be permitted to call Dr. Marcin Krotkiewski to testify at a continuation of the hearing in Washington, D.C. as a surrebuttal witness provided that they can arrange for his testimony during the week of June 17, 1985.* Respondents initially requested this. Upon consideration of the necessary procedures for and disadvantages of taking Dr. Krotkiewski's testimony by written interrogatories, it has been determined that such a procedure would be much less satisfactory. Should Dr. Krotkiewski's testimony prove important, I would be deprived of the opportunity to observe his demeanor. Additionally, cross interrogatories would be extremely difficult to draft in order to provide appropriate cross examination.

_______________________

*However, if the parties are in Florida during the week of June 17 in connection with the trial of other cases, Dr. Krotkiewski's rebuttal testimony will be heard in Florida.

Furthermore, the taking of Dr. Krotkiewski's testimony by written interrogatories will result in little or no saving of time. Federal Rule of Civil Procedure 31(a) contemplates service of cross questions within 30 days of service of written questions, redirect questions 10 days later, and recross questions 10 days after service of redirect questions. Even if these time limits are greatly reduced, a substantial amount, if not all, of the one month period until June 17 will be consumed by this procedure. Additional time will be required to arrange for the transmittal of the final set of questions to Sweden and their return from Sweden. Furthermore, it has been learned, as a result of a telephone conversation with an U.S. embassy official in Sweden, that additional delays probably will result from the vacation schedule of consulate personnel in Sweden and also if an airline strike, presently taking place in Sweden, continues into the period when the interrogatories are to be sent to Sweden and returned.

2. Dr. Krotkiewski's testimony will be limited to the scope of Dr. Ayers' direct testimony on rebuttal and to contradicting or challenging credibility with regard to Dr. Ayers direct rebuttal testimony. In accordance with this decision, Respondents' Proposed Questions have been reviewed and it is determined that:

a. Proposed Questions R1, R2, R3, and R4, which are intoductory questions, may be asked.

b. Proposed Questions R5, R6, R7, R8, R9, R10 and R11 are beyond the scope of Dr. Ayers' direct testimony on rebuttal and will not be permitted. Respondents could have called Dr. Krotkiewski to testify on these subjects during Respondents' case-in-chief, however, Respondents elected not to call him as a witness. They will not be permitted to re-open these issues and prolong the hearing further by expanding the scope of Dr. Krotkiewski's testimony as a surrebuttal witness.

c. Proposed Questions R12, R13, R14, R15, R16, and R17 appear to be designed to challenge Dr. Ayers' testimony with respect to his telephone conversation with Dr. Krotkiewski. Therefore, they will be permitted. However, Respondents must submit a revised question for R14 which is leading.

d. Respondents will not be permitted to ask any other questions during their direct questioning of Dr. Krotkiewski. Complainant's cross-examination will be strictly limited to the scope of the direct examination and any redirect examination will be strictly limited to the scope of the cross-examination.

4. In order not to delay the completion of these proceedings, pending the receipt of any testimony of Dr. Krotkiewski, the parties will begin to prepare proposed findings of fact, proposed conclusions of law and memoranda which will be submitted before Dr. Krotkiewski testifies. Such proposed findings, conclusions and memoranda may be amended or supplemented after Dr. Krotkiewski's testimony. A separate Order will shortly be issued setting forth requirements with respect to proposed findings, conclusions and memoranda.