Court File and Parties
Court File No.: 12-CV-461004 Date: 2017-06-23 Superior Court of Justice - Ontario
Re: SOFIA ALELITA C. PENA et al, Plaintiffs And: ONTARIO CORPORATION NUMBER 261660 operating as U-PAK DISPOSALS LIMITED et al, Defendants
Before: Justice Glustein
Counsel: M. Greg Abogado, Michael Burgar, and Asher Honickman, for the Plaintiffs Mark Elkin and Stefanie Gordaneer, for the Defendants
Reasons for Rulings – Mistrial Motion and Admissibility of Expert Evidence
I. Mistrial Motion
Nature of motion and positions of the parties
1The defendants brought a motion during trial seeking a mistrial. The defendants submitted that:
(i) an article published by The Toronto Sun on May 31, 2017 (the “Article”) created a “real danger of prejudice or danger of a miscarriage of justice” such that a mistrial was the only remedy available to the court; and (ii) the conduct of plaintiffs’ counsel was so egregious as to warrant a mistrial.
2In response, the plaintiffs submitted that:
(i) the publication of the Article did not meet the test required for the court to make an order of “last resort” for a mistrial; and (ii) the conduct of plaintiffs’ counsel was in no way improper and, in any event, was irrelevant to the issue of whether a mistrial should be ordered.
3At the trial, I dismissed the defendants’ motion with reasons to follow.
Facts
4On May 29, 2017, the trial began with jury selection.
5On May 30, 2017, I made a ruling excluding certain evidence pertaining to the circumstances of the accident in this case, either by reference in the plaintiffs’ opening submissions or in evidence. I held that since the defendants admitted liability, the details of how the accident occurred were not “merely” part of the “narrative” of the accident (as those terms had been considered by the court in R. v. White, 2011 SCC 13, at para. 47), but instead were irrelevant facts that if set out in the plaintiffs’ opening statement or introduced in evidence “may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy” (R. v. Seaboyer, 1991 SCC 76, 1991 SCJ 62, at para. 40).
6A reporter from The Toronto Sun was present at court on May 30, 2017. Both counsel became aware of the presence of the reporter before I issued my ruling and did not ask for a publication ban or any order preventing her from reporting on the matter. Counsel then proceeded with their opening submissions and the plaintiffs began their case.
7On May 31, 2017, the Article was published. The reporter referred to the circumstances of the accident. The reporter also inaccurately reported that defendants’ counsel stated in his opening submissions that the defendants had made an “offer” to the plaintiffs that the plaintiffs had rejected. In fact, defendants’ counsel was careful in his submissions to only state that their experts would give evidence that they had evaluated the plaintiffs’ claims at a certain dollar amount and that the plaintiffs did not agree with that assessment of damages.
8The Article contained additional information about the circumstances of the accident which were not raised before the court at the hearing (and not sought to be introduced by the plaintiffs in their opening statement or as evidence).
9There was no evidence before the court as to how the reporter obtained the information contained in the Article.
10The plaintiffs filed a letter from their counsel to defendants’ counsel responding to defendants’ counsel’s questions about the conduct of plaintiffs’ counsel. In the letter, plaintiffs’ counsel advised that they:
(i) had no contact with The Toronto Sun about the facts of the case, (ii) had not discussed the circumstances of the accident with the reporter other than saying the information was in the public domain, (iii) provided some photographs of the deceased to the reporter (after the client agreed with the reporter’s request to provide such a photograph to be included with the Article), and (iv) answered the reporter’s question about whether the corporate defendant had paid a fine and told the reporter that the information was in the public domain.
11Plaintiffs’ counsel also stated in the letter that “there was some discussion and an explanation about [my ruling excluding certain evidence as to the circumstances of the accident] and the admission of fault by the defendants”. Plaintiffs’ counsel added in their letter that “there was no indication that the jury was or could be advised about the … circumstances of the loss”.
12Plaintiffs’ counsel also provided the court with 12 online articles, the contents of the public court record which included all the police investigations, and an earlier procedural decision of Master Short in this matter. A review of those documents demonstrates that they referred to the circumstances of the accident and information about the proceedings involving the corporate defendant after the accident.
13To the extent that the reporter erred in referring to an “offer”, plaintiffs’ counsel provided the court with e-mail correspondence from Mr. Honickman, one of the plaintiffs’ trial lawyers, to the reporter specifically responding to her question about whether defendants’ counsel referred to an “offer” in his opening submissions. Mr. Honickman correctly advised the reporter that (i) defendants’ counsel did not refer to an offer in his opening submissions, and (ii) defendants’ counsel stated in his opening submissions words to the effect that “those were the defence assessment numbers and the plaintiffs disagree with that”.
14At the hearing, plaintiffs’ counsel refused to permit Mr. Honickman to be examined as a witness. The plaintiffs also refused to allow the defendants to call evidence from their law clerk as to her observations of what had taken place in court on May 30, 2017. The defendants submitted that the court should draw an adverse inference from the refusal of plaintiffs’ counsel to give or allow such evidence.
15Given my reasons below, the conduct of plaintiffs’ counsel is irrelevant to the issue of a mistrial. Consequently, I make no findings as to the conduct of plaintiffs’ counsel nor do I draw any adverse inferences from the plaintiffs’ position.
Additional steps taken and instructions to the jury as a result of the Article
16I advised the parties that I would not grant the motion for a mistrial since I was satisfied that I could address any prejudice, if it existed, by following the process set out in R. v. Kinkead (“Kinkead”) and R. v. Wilson (“Wilson”) by speaking with the jurors individually and then providing additional instructions.
17Prior to speaking with the jurors, I reviewed with counsel my proposed question to the jurors, which was adapted from the additional question in Kinkead. Both counsel agreed that the question was proper (although the defendants maintained their submission that a mistrial ought to be granted since the Article had been published and to sanction the alleged improper conduct of plaintiffs’ counsel).
18I also raised with counsel my proposed additional instructions to the jury, depending on the jurors’ responses to the question. Again, both counsel agreed that my additional instructions were consistent with the additional instructions in Kinkead and Wilson, subject to a proposed addition raised by the defendants which I accepted and was not opposed by plaintiffs’ counsel (although the defendants maintained their submission that a mistrial ought to be granted as I discuss above).
19I then spoke with each of the jurors separately in the presence of counsel and asked “Have you read or heard about any media reports about this case since the trial has commenced?” Each juror responded in the negative.
20I then provided the following additional instructions to the jurors:
“I advise the jury that a report of this case has been published that contains errors and information which is not relevant to this case and the jurors are to disregard it”; “I instruct you not to seek out or make any efforts to locate and read this article or any other article relating to this matter”; [1] “I remind the jurors of their oath to decide the case based solely on the evidence adduced at trial”; and “I instruct the jurors to ignore any future stories they might see concerning this matter”.
Applicable law
21I rely on the following principles of law governing whether the court should order a mistrial:
(i) Trial judges are only to order a mistrial “as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned” (R. v. Jeanvenne, 2010 ONCA 706 (“Jeanvenne”), at para. 58, summarizing R. v. Toutissani, 2007 ONCA 773 (“Toutissani”), at para. 9; see also R. v. Moffit, 2015 ONCA 412 (“Moffit”), at para. 93); (ii) A mistrial can be granted only when there is a “real danger of prejudice … or danger of a miscarriage of justice” (Carleton v. Beaverton Hotel, 2010 ONSC 898 (“Carleton”), at para. 3, citing R. v. Burke, 2002 SCC 55, at para. 74); (iii) A mistrial can only be granted when (i) “a correcting instruction to the jury cannot cure the prejudice” (Gilbert v. South, 2015 ONCA 712, at para. 22); and (ii) the jury “can no longer fairly adjudicate upon the case because of the release of information that has the potential to irremediably prejudice one of the parties” (Carleton, at para. 4, citing Ferguson J. in Ontario Courtroom Procedure, 2d ed (Markham: LexisNexis 2009)); (iv) A court faced with a mistrial motion must address three questions. First, it must consider whether the inadmissible evidence or improper statements to the jury “are properly characterized as inappropriate and/or inflammatory. Second, it must consider how serious the likely prejudice is to the other party and whether the impugned comments or actions might prevent the jury from properly approaching its task. Finally, it must consider the appropriate remedy and whether a remedy short of a mistrial might suffice” (Bonaiuto v. Pilot Insurance Co., 2010 ONSC 1624, at para. 6, summarizing Landolfi v. Fargione, at paras. 99-107); (v) “[T]rial judges are particularly well-placed to assess the impact of inadmissible and potentially prejudicial evidence in the context of the trial dynamic, including the effectiveness of any warning that may be issued” (Jeanvenne, at para. 58); (vi) It is proper for a trial judge not to declare a mistrial but instead instruct a jury that an article has been published which contains “false information that had nothing to do with the case to be tried and that they were to disregard it” (Wilson, at para. 3); (vii) Even where jurors read an article which refers to inadmissible evidence, the court may exercise its discretion to not order a mistrial but instead instruct the jury to “banish it from your mind”, decide the case “based solely on the evidence you are going to hear at this trial”, and “ignore any future stories that they might see” about the case (Kinkead, at paras. 38-44); and (viii) The court should trust that the jury will follow an instruction from the judge (Moffit, at para. 100).
22In Kinkead, the accused was charged with first-degree murder. After the completion of several days of evidence, several media reports were published that stated that the accused had been sentenced to life imprisonment for another murder and at least one story indicated that the accused had pleaded guilty to the earlier murder charge (Kinkead, at para. 38). Simmons J.A. summarized the defence position as follows (Kinkead, at para. 39):
Defence counsel submitted that it was likely that at least some of the jurors may have learned inadvertently of Kinkead's murder conviction. Counsel said that he could not think of an instruction that would deal with the situation adequately because instructing the jury to disregard what they may have heard would serve only to underline it. He claimed that, as a result, there was no option but to declare a mistrial.
23Rather than declare a mistrial, the trial judge “decided to ask the jurors individually whether they had seen or heard anything” in relation to the news articles. Simmons J.A. stated (Kinkead, at para. 40):
Six jurors responded that they had heard something about the story. Based on their responses, the trial judge concluded that at least two or three of those six jurors were likely aware of the appellant's prior murder conviction.
24Simmons J.A. spoke for the court and upheld the decision of the trial judge to deny the request for a mistrial and, instead, to provide appropriate instructions to the jury. Simmons J.A. reviewed the process followed by the trial judge (Kinkead, at paras. 41-44):
After further submissions, the trial judge denied the request for a mistrial. He concluded that the jury would be able to set aside anything they may have heard about the murder conviction. In particular, he noted that the defence had challenged prospective jurors for cause based on pre-trial publicity and that all of the jurors had been accepted by the triers.
Following his ruling, the trial judge gave the jury a three-part instruction. He instructed the jury not to discuss anything that they may have seen or heard; he reminded them of their oath to decide the case based solely on the evidence adduced at trial and told them to disregard anything that they may have seen or heard; and he instructed them to ignore any future stories that they might see concerning Mr. Baksh or the missing child.
In particular, the trial judge said the following in the second part of his instruction:
The second thing I am going to ask you to do is what you have already sworn to do, and I guess basically I just want to remind you that whatever it was you heard or read, you are to disregard it. You are to banish it from your mind and do what I know each and every one of you are going to do and honour your oath, and that is, you are going to decide the guilt or innocence of Mr. Kinkead based solely on the evidence you are going to hear at this trial, and I know that you are going to do that.
On June 2, 1999, after a further newspaper article referred to Kinkead 's murder conviction under the headline, "Daughter pleads with father sought in kidnapping", the defence renewed its request for a mistrial. Once again, counsel submitted that it was possible that some of the jurors may have learned inadvertently of Kinkead's prior murder conviction. Relying on his previous reasons, the trial judge denied the renewed request for a mistrial.
25Simmons J.A. stated that the “precise issue that [the trial judge] was required to determine” was whether “he was satisfied that the jurors could set aside anything they may have heard” (Kinkead, at para. 55).
26Further, Simmons J.A. held that a trial judge should not question the jurors to assess whether they can disregard the inadmissible evidence. Simmons J.A. stated (Kinkead, at para. 57):
Where inadmissible evidence is inadvertently admitted, the trial judge does not question the jurors to assess whether they can disregard the inadmissible evidence; rather, he makes that determination as a matter of common sense, taking account of all of the events that have taken place and his observations of the jury. In this case, the trial judge adopted the same approach.
27I now apply the above principles to the issues in the present case.
Analysis
28The defendants submitted:
(i) the Article created a “real danger of prejudice or danger of a miscarriage of justice” such that a mistrial was the only remedy available to the court; and (ii) the conduct of plaintiffs’ counsel was so egregious as to warrant a mistrial.
29I address each of these issues below.
Issue 1: Is a mistrial required as a result of the Article?
30I do not find that a mistrial is required as a result of the Article.
31The facts of the present case raise less risk of prejudice than in Kinkead, in which the court affirmed the decision of the trial judge not to order a mistrial. While I ruled that the circumstances of the accident were inadmissible because they were irrelevant, not “merely” part of the narrative, and “may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy”, the inadmissible evidence in the article in Kinkead of the accused’s prior murder conviction posed a much more serious risk of prejudice.
32Further, two or three of the jurors in Kinkead had read the various news reports. In the present case, no one read the Article.
33In Kinkead, the court held that the content of the article and the knowledge of the article by some of the jurors was properly addressed through a question and additional instructions to the jury, and did not warrant the “last resort” of a mistrial.
34The approach of the court in Kinkead is consistent with the strict caution against granting a mistrial unless it is a “last resort”, as set out in Moffit, Jeanvenne, and Toutissani, to be used only if a correcting instruction cannot address any potential prejudice.
35The defendants’ submission that the Article raises prejudice that is so severe that it cannot be corrected by an additional instruction is inconsistent with Kinkead, when such instructions were found to be the proper approach.
36None of the requirements to grant a mistrial have been met. The facts do not establish “the clearest of cases” nor a situation “where no remedy short of that relief will adequately redress the actual harm occasioned”.
37On the evidence, there is no “real danger of prejudice” as no juror read the Article. In any event, the additional instructions I set out above with respect to the Article and any future media reports are consistent with those in Kinkead, as well as the instruction about inaccuracies in the article considered in Wilson, and address the same concerns of the courts as in those cases.
38Consequently, I find that a remedy short of a mistrial will suffice.
39For the above reasons, I reject the defendants’ submission that the publication of the Article warrants the “last resort” of a mistrial.
Issue 2: Whether the alleged conduct of plaintiffs’ counsel warrants a mistrial
40In effect, the defendants’ submission is that if the court finds that plaintiffs’ counsel “fed” all of the information in the Article to the reporter, then such conduct would be an indirect attempt to violate my evidentiary ruling and should be sanctioned by a mistrial even if the publication of the Article itself would not warrant a mistrial. I do not agree.
41In Kinkead, the court stated that “the precise issue” for a trial judge deciding whether to grant a mistrial is whether the trial judge is “satisfied that the jurors could set aside anything they may have heard” (Kinkead, at para. 55).
42Consequently, the basis of the reporter’s source of the information, i.e. whether it came from the public record or from plaintiffs’ counsel, is irrelevant to the “precise issue the court must decide”.
43I make no finding with respect to conduct because the issue is irrelevant. If a party or counsel were to act such as to improperly circumvent a court order, they would face potential consequences under the Rules of Professional Conduct or possibly under contempt provisions. The test for a mistrial, however, focuses on the issue of whether the jury can proceed given the disclosed information. Rule 7.5.2 of the Rules of Professional Conduct is consistent with that test. It provides:
A lawyer shall not communicate information to the media or make public statements about a matter before a tribunal if the lawyer knows or ought to know that the information or statement will have a substantial likelihood of materially prejudicing a party's right to a fair trial or hearing.
44In other words, the issue of conduct in relation to the media is the same as in the law relating to mistrial motions. If a lawyer creates a situation with “a substantial likelihood of materially prejudicing a party's right to a fair trial”, not only will a mistrial be possible, but disciplinary proceedings may be engaged. If the conduct does not create such a situation, a mistrial ought not to be ordered as a sanction for communications between a lawyer and the media.
45Consequently, it would not be appropriate to ignore the stringent requirements set out by the courts to order a mistrial, and turn a mistrial motion into an investigation of the conduct of lawyers. The issue for a mistrial is whether the jury can fairly decide the matter given the information disclosed, not whether the lawyers or a client created that situation.
46I reject the defendants’ suggestion that such an approach would permit lawyers to have carte blanche to indirectly violate court orders. Lawyers are officers of the court and have obligations both to the court (under contempt proceedings) and to their regulatory bodies. Any improper conduct, if established, can be dealt with through those forums. It does not lead to the result that a mistrial can, or should, be ordered as some form of punishment for inappropriate conduct when the tests for a mistrial under the settled law have not been met.
47I reiterate that in these reasons, I make no finding as to the conduct of plaintiffs’ counsel.
48For these reasons, I reject the submission that a mistrial can be ordered as a punitive measure if such conduct as alleged took place.
Order
49For the above reasons, I dismiss the defendants’ motion for a mistrial.
II. Admissibility of Expert Evidence
Nature of motion and positions of the parties
50At trial, the plaintiffs sought to lead evidence from their expert, Ian Wollach (“Wollach”), about the plaintiffs’ dependency loss, i.e. the loss of the net income that the plaintiffs would have shared but for the death of Miguel Vicente Pena (“Mike”).
51Wollach prepared his calculations of the dependency loss based on two scenarios. Scenario 1 assumed that Mike would have remained a web designer/developer until age 65 eventually earning a market rate salary. Scenario 2 assumed that Mike would have been promoted to the position of “computer and information systems manager” as of age 55, earning income based on that market rate until age 65.
52Defendants’ counsel objected to the admissibility of Scenario 2. Defendants’ counsel submitted there were no “foundational facts” before the jury that could support Scenario 2 and, as such, expert evidence on that scenario was not admissible.
53Plaintiffs’ counsel submitted that there were “foundational facts” before the jury that could support Scenario 2 and, as such, expert evidence on that scenario was admissible.
54At trial, I ruled that Wollach’s expert evidence on Scenario 2 was admissible, with reasons to follow.
Facts
55In his report, Wollach referred to the following facts he obtained from counsel to support a scenario by which Mike could have become a computer systems manager:
(i) “Mr. Pena’s educational history includes the following: Bachelor of Science in Business Administration, Major in Computer Science, Central Colleges of the Philippines, 1990; and attended De Manila University for a Master’s degree in Information Management (he did not complete this as he moved to Canada)”; (ii) “Mr. Pena immigrated to Canada in December 2003, and quickly established his career as a web developer and designer drawing on his significant previous experience in this field”; (iii) “We understand that his plan was to eventually upgrade his education towards a Master’s degree in Information Management, which would have allowed him to pursue more senior management positions”; and (iv) “Of note, we understand that Mr. Pena was only two courses away from completion of his Master’s in Information Management in the Philippines, but did not complete this as a consequence of the decision to move to Canada”.
56On the above understanding of the facts, Wollach stated that “should [Mike] have been successful in upgrading his education, then we assumed that by age 55, his earnings would have been similar to the average market earnings of Computer and Information Systems Managers”.
57At trial, evidence was led only on certain of the factual assumptions relied upon by Wollach. In particular, there was evidence of Mike’s educational background and the fact that he did not complete his Master’s degree because the family immigrated to Canada. There was no evidence that he was “two courses away” from completing his Master’s degree, nor that he had a “plan” to eventually complete his Master’s degree.
58There was evidence that when Mike came to Canada, he did “odd jobs” with the most “substantial” being a business analyst intern at ScotiaBank in Toronto for five months until he moved to the Pulsus Group as a web developer.
The applicable law
59I rely on the following principles of law governing the admissibility of expert evidence of income loss based on contingencies:
(i) Courts can consider positive and negative contingencies in determining future income loss, including the prospect of career advancement and promotion (Ligate v. Abick); and (ii) “[T]he generally accepted approach to assessment of claims for loss of income earning capacity [is] first, to set the parameters of the claim by referring to statistical evidence with respect to the class of individuals to which the plaintiff belongs, and then to adjust the resulting preliminary measure of damages to take into account contingencies that are particular to the plaintiff” (Smith v. Fremlin, 2014 BCCA 253, at para. 23).
60The defendants rely on the decision of the Court of Appeal in Marchand v. The Public General Hospital Society of Chatham (“Marchand”). In Marchand, the appellant plaintiffs brought an action against the hospital, doctor, and nurses involved in the delivery of their son who was born profoundly disabled. The trial judge made a ruling preventing an expert home care witness from giving evidence because the plaintiffs (Marchand, at para. 66):
sought to rely upon videotapes as the foundation for the [expert] opinions … rather than the medical reports that served as the basis for the [expert reports]. The trial judge characterized the matter as an attempt by the [plaintiffs] to rely upon a different set of facts from the facts that served as a basis for the experts’ reports.
61The plaintiffs in Marchand “were in breach of an undertaking and were refusing to prove in evidence the factual foundation of the opinion” (Marchand, at para. 68).
62The court held that “a party cannot rely upon a different set of facts” to support an expert opinion which relies on an entirely different factual basis (Marchand, at para. 67). Similarly, an expert cannot rely “entirely” on inadmissible evidence (Marchand, at paras. 62-63).
63The court held that the trial judge did not err in concluding that the “experts’ opinions would be entitled to no weight” since “[t]he videotapes could only provide evidence of [the child’s] present capabilities; they could say nothing about [the child’s] future development” (Marchand, at para. 68).
64The court did not interfere with the decision to exclude the expert evidence “[g]iven the protracted nature of the trial and the explicit position taken by the [plaintiffs] as to what they would and would not prove” (Marchand, at para. 68), but added that “[e]ven if the trial judge did err, the error resulted in no substantial wrong or miscarriage of justice. The opinions of Ms. Kelly and Ms. Staub were entitled to little or no weight, given that the factual foundations of their reports had not been proved in evidence” (Marchand, at para. 69).
65The court distinguished the facts in Marchand from situations when some, but not all, of the facts on which the expert relied were proven. In those situations, expert evidence is admissible, with the trier of fact entitled to consider the weight to be attached to the opinion given the proven and unproven facts.
66The court held that (i) weight to be attributed to expert evidence should generally be assessed at the end of a trial and (ii) “it is not the law that a party must prove the identical factual foundation relied upon by an expert in formulating an opinion”. The court held (Marchand, at para. 65):
The trial judge based his refusal to admit the evidence on his finding that the evidence would have no weight. Ordinarily, this is not the appropriate approach. The question of weight can only be assessed at the close of a party's case; it cannot be assessed prior to an expert witness giving testimony. Further, it is not the law that a party must prove the identical factual foundation relied upon by an expert in formulating an opinion. Indeed, the Supreme Court clearly rejected that proposition in Lavallee.
67The court in Marchand held that as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the expert evidence is admissible subject to a charge to the jury that less weight may be attributed to the opinion as a result of any unproven facts. The court adopted the following passages of Wilson J. in R. v. Lavallee (Marchand, at para. 61):
In my view, as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.
Where the factual basis of an expert's opinion is a mélange of admissible and inadmissible evidence the duty of the trial judge is to caution the jury that the weight attributable to the expert testimony is directly related to the amount and quality of admissible evidence on which it relies.
Analysis
68In the present case, I follow the “appropriate approach” set out in Marchand and admit evidence from Wollach on both scenarios.
69Scenario 2 was based on the assumption that Mike could “have been successful in upgrading his education”. That assumption was based on several facts. Some of those assumed facts were not proven (i.e. there was no evidence of a plan by Mike to complete his Master’s degree nor evidence that he was two courses short of completing his Master’s degree). However, other assumed facts were proven. There was evidence that Mike (i) obtained his Bachelor of Science in Business Administration with a major in Computer Science, (ii) attended university in the Philippines for a Master’s degree in Information Technology but did not complete it because he moved to Canada, and (iii) Mike obtained a position as a web developer after he immigrated to Canada.
70Consequently, there was some evidence that could have supported a scenario by which Mike could have upgraded his education and earned income as a computer systems manager. In my charge to the jury, I instructed the jury with the general comment that if an expert relies on facts not proved in evidence the jury may attribute less weight to that opinion.
Order
71For the above reasons, I rejected the defendants’ request and held that Wollach’s evidence as to dependency loss under Scenario 2 was admissible.
GLUSTEIN J. Date: 2017-06-23
Footnote:
1This was the additional instruction proposed by the defendants which I accepted as proper and which plaintiffs’ counsel did not oppose.