Pooshs v. Phillip Morris USA, Inc., et al.

Filing 288

ORDER by Judge Hamilton granting 235 Motion to exclude testimony; granting in part and denying in part 236 Motion to exclude testimony; granting in part and denying in part 237 Motion to exclude testimony; granting in part and denying in part 238 Motion to exclude testimony. (pjhlc1, COURT STAFF) (Filed on 12/5/2012)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 NIKKI POOSHS, Plaintiff, 9 v. 10 ORDER 11 For the Northern District of California United States District Court No. C 04-1221 PJH PHILLIP MORRIS USA, INC., et al., 12 Defendant. _______________________________/ 13 Before the court are the motions of defendants Philip Morris USA (“PM”), R.J. 14 15 Reynolds Tobacco Company (“RJR”), and Hill and Knowlton, Inc. (now known as Hill & 16 Knowlton Strategies LLC) to exclude the opinions and testimony of four of plaintiff’s experts 17 – Dr. Valerie B. Yerger, Robert Johnson, Dr. Allen H. Smith, and Dr. K. Michael Cummings. 18 Having read the parties’ papers and carefully considered their arguments and the relevant 19 legal authority, the court hereby rules as follows. DISCUSSION 20 21 22 A. Legal Standard A witness who has been qualified as an expert by knowledge, skill, experience, 23 training, or education may give an opinion on scientific, technical, or otherwise specialized 24 topics if (1) the expert’s scientific, technical, or other special knowledge will help the trier of 25 fact understand the evidence or determine a fact in issue, (2) the testimony is based upon 26 sufficient facts or data, (3) the testimony is the product of reliable principles and methods, 27 and (4) the witness has applied the principles and methods reliably to the facts of the case.” 28 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). 1 The proponent of expert testimony bears the burden of establishing by a 2 preponderance of the evidence that the admissibility requirements are met. See Fed. R. 3 Evid. 702, Advisory Committee Notes. Although there is a presumption of admissibility, 4 Daubert, 509 U.S. at 588, the trial court is obliged to act as a “gatekeeper” with regard to 5 the admission of expert scientific testimony under Rule 702. Id. at 597; see also Kumho 6 Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). 7 Thus, Daubert requires a two-part analysis. The court first determines whether an 8 expert's testimony reflects “scientific knowledge,” whether the findings are “derived by the 9 scientific method,” and whether the work product is “good science” – that is, whether the testimony is reliable and trustworthy. Daubert, 509 U.S. at 590 & n.9, 593. The court then 11 For the Northern District of California United States District Court 10 determines whether the testimony is “relevant to the task at hand.” Id. at 597. 12 Scientific evidence is reliable if it is based on an assertion that is grounded in 13 methods of science – the focus is on principles and methodology, not on conclusions. 14 Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 841 (9th Cir. 2001). In determining whether 15 an expert's reasoning or methodology is scientifically valid, the district court can consider 16 “many factors,” including (1) whether a scientific theory or technique can be (and has been) 17 tested; (2) whether the theory or technique has been subjected to peer review and 18 publication; (3) whether there is a known or potential error rate; and (4) whether the theory 19 or technique is generally accepted in the relevant scientific community. See Daubert, 509 20 U.S. at 593-95; Fed. R. Evid. 702, 2000 Advisory Committee Notes; see also Barabin v. 21 AstenJohnson, Inc., __ F.3d __, 2012 WL 5669685 at *2 (9th Cir. Nov. 16, 2012) (citation 22 and quotation omitted). 23 Nevertheless, depending on the type of expert testimony offered, these factors may 24 not be appropriate to assess reliability. Kumho Tire, 526 U.S. at 150. Other factors that 25 might be considered include whether an expert has unjustifiably extrapolated from an 26 accepted premise to an unfounded conclusion, see General Elec. Co. v. Joiner, 522 U.S. 27 136, 146 (1997); or whether an expert has adequately accounted for obvious alternative 28 explanations, see Claar v. Burlington Northern R. Co., 29 F.3d 499, 502 (9th Cir. 1994). 2 The trial court should also be mindful that reliability is not determined based on the 1 2 “correctness of the expert's conclusions but the soundness of his methodology.” Stilwell v. 3 Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007) (quotation omitted). A 4 methodology may not be reliable if an expert “fail[s] to address and exclude alternative 5 explanations for the data on which he bases his findings” or “reject[s] studies reporting 6 contrary empirical findings.” Carnegie Mellon Univ. v. Hoffman-LaRoche, Inc., 55 7 F.Supp.2d 1024, 1034-35 (N.D. Cal. 1999). 8 9 In addition, a court may exclude expert testimony on the ground that an expert's purported methodology fails to explain his final conclusion. Joiner, 522 U.S. at 146 (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to 11 For the Northern District of California United States District Court 10 admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. 12 A court may conclude that there is simply too great an analytical gap between the data and 13 the opinion proffered.”). The trial court should ensure the expert “employs in the courtroom 14 the same level of intellectual rigor that characterizes the practice of an expert in the 15 relevant field.” Kumho Tire, 526 U.S. at 152. The court should also consider whether an 16 expert prepared his methodology for purposes of litigation, or articulated the methodology 17 before litigation and without any incentive to reach a particular outcome. See Daubert v. 18 Merrell Dow Pharms, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995). 19 Rule 702's second prong concern's relevancy, or “fit.” See Daubert, 509 U.S. at 20 591. Expert opinion testimony is relevant if the knowledge underlying it has a “valid . . . 21 connection to the pertinent inquiry,” and it is reliable if the knowledge underlying it “has a 22 reliable basis in the knowledge and experience of [the relevant] discipline.” Id. at 592; 23 Kumho Tire, 526 U.S. at 149. 24 B. Defendants’ Motions 25 1. Dr. Valerie B. Yerger 26 Dr. Yerger was trained as a naturopathic physician, although she does not currently 27 practice in that field. She also has a certificate in counseling, but is not licensed as a 28 psychologist or psychiatrist. Dr. Yerger is currently an Assistant Adjunct Professor of 3 1 Social and Behavioral Sciences in the School of Nursing at the University of California, San 2 Francisco (“UCSF”). As an Assistant Adjunct, she has given approximately one lecture per 3 year for the past eight years, on the subject of menthol. She is also on the faculty of the 4 UCSF Center for Tobacco Control Research and Education. 5 It is not entirely clear what opinions plaintiff retained Dr. Yerger to provide. In her 6 report, Dr. Yerger states that she is an expert in “tobacco documents archival research.” 7 UCSF holds a large archive of millions of digitally-stored historical documents relating in 8 some way to tobacco or tobacco research. The document database maintained by UCSF 9 is available on the Internet to anyone who wishes to search it. Dr. Yerger claims to specialize in searching those documents and “interpreting” what 11 For the Northern District of California United States District Court 10 she finds in the documents. She claims that “tobacco documents” are a key resource for 12 tobacco control research, and asserts that she has analyzed tobacco documents “related to 13 attempts by the tobacco industry to engage in various manufacturing and marketing 14 practices over multiple decades.” 15 In her report, Dr. Yerger offers opinions on the following, apparently based on her 16 review of these tobacco documents – (1) that cigarettes are addictive and hazardous when 17 used as intended; (2) that tobacco companies have long known that nicotine is addictive 18 and that smoke delivers carcinogens; (3) that the intention of the “Frank Statement” was to 19 influence public sentiment regarding the tobacco industry; (4) that cigarette companies 20 deliberately “engineered cigarettes” to be an effective “nicotine delivery device,” while at the 21 same time marketing cigarettes as “low tar,” “light,” or “mild” to create the illusion that such 22 cigarettes were “safer;” or adding menthol, which affected the “impact” or “grab” of the 23 cigarettes; (5) that while openly challenging the link between second-hand smoke and lung 24 cancer, PM simultaneously secretly conducted tests of second-hand smoke. 25 Defendants argue that Dr. Yerger’s opinions should be excluded in their entirety. 26 Defendants contend that Dr. Yerger is not qualified to testify as to any of the opinions in her 27 report, and because her opinions are not based on a reliable methodology. 28 The court finds that the motion must be GRANTED. Dr. Yerger is not qualified as an 4 1 expert in researching document archives. She holds no degree in history or social science, 2 has not studied or received a degree in library science, and has never received formal 3 training under a formal curriculum on archival database research. Nor has she explained 4 how she conducted her searches. While she claims that there are “well-developed 5 protocols” for searching documents based on the “snowball technique,” she does not 6 explain what those protocols are, and has conceded that the search involves a human 7 element in refining search terms used in the technique that may lead to bias in the 8 document collection process. 9 Moreover, even were Dr. Yerger qualified as an expert in archival research, that would not qualify her to opine on the subject matter of the documents she finds. Dr. Yerger 11 For the Northern District of California United States District Court 10 is not an expert on cigarette design, as she herself admitted in her deposition, and has not 12 conducted any studies to determine, e.g., how tar and nicotine levels can influence smoke 13 inhalation in nicotine delivery, and how additives can facilitate smoke inhalation in nicotine 14 delivery. 15 Dr. Yerger is not qualified in any scientific discipline that would enable her to render 16 reliable opinions regarding addiction, the addictive qualities of cigarettes, the “adulteration” 17 of cigarettes, the action of nicotine on the human body, the effect on the human body of 18 secondhand smoke, or any of the other topics listed in her report. She does not hold any 19 appointments in UCSF’s graduate programs in biochemistry and molecular biology, 20 chemistry and chemical biology, epidemiology and translational science, or the history of 21 health sciences, and has no degree in toxicology, pharmacology, psychiatry, or psychology. 22 There is no evidence that she is familiar with the diagnostic methods used by health 23 professionals to diagnose addiction, and she has conducted no independent scientific 24 investigation regarding the effects of nicotine, has no scientific expertise in nicotine’s 25 effects on the human body, and has no opinion on what level of nicotine would not be 26 addictive. 27 28 Moreover, testimony “interpreting” cigarette company documents would not assist the jury because those documents speak for themselves. 5 1 2. Robert W. Johnson 2 Robert W. Johnson is plaintiff’s damages expert. In 1970 he obtained an 3 undergraduate degree in Economics, and in 1973, an MBA from Stanford in Finance and 4 Investments. He is the President of Robert W. Johnson & Associates, located in Los Altos, 5 and specializes in providing expert testimony regarding both non-economic and economic 6 damages. Based on his CV, he has approximately 30 years’ experience as a damages 7 expert. He has also published articles on litigation-related economic analysis, and is a 8 founding member of the National Association of Forensic Economists, and a member of the 9 American Economic Association and the Western Economic Association. Mr. Johnson submitted two expert reports – an “Economic Impact Report,” in which 11 For the Northern District of California United States District Court 10 he calculates the present cash value of plaintiff’s economic damages (but not including 12 medical expenses); and a “Financial Condition Report,” in which he “frame[s], in economic 13 terms, the financial condition of” PM and RJR. Defendants argue that both reports should 14 be excluded because Mr. Johnson is not qualified and his opinions are not based on a 15 reliable methodology. 16 Defendants’ first argument is that Mr. Johnson is not qualified to render an opinion 17 regarding the present cash value of plaintiff’s economic damages because his Economics 18 degree is an undergraduate degree, and because he has spent most of his career working 19 as a litigation-based damages expert, not as an economist. They also assert that Mr. 20 Johnson has no professional training in either economic loss calculation or in assessing the 21 financial condition of a corporation for purposes of determining an appropriate award of 22 punitive damages. 23 Defendants also assert that Mr. Johnson’s opinions about plaintiff’s economic 24 damages are not based on a reliable methodology. Mr. Johnson calculated plaintiff’s 25 economic damages based on her anticipated Social Security income, from 2013 through 26 2027 (a total of $263,520, based on anticipated life expectancy – or $243,765 at present 27 value), plus the value of “household services” for the period 2003 through 2025 (a total of 28 $463,413 – or $453,271 at present value). 6 1 Defendants assert that Mr. Johnson’s economic loss calculation is not reliable 2 because it uses an unreasonably low discount rate, because it assumes plaintiff has been 3 unable to perform any household services since 2003, because it bases the value of 4 household services on a 1982 survey, because it “assumes” that plaintiff will perform the 5 “average” level of household services, and because it “assumes” plaintiff’s date of death 6 based only in information provided by counsel. 7 In their second main argument, defendants contend that the opinion regarding PM’s from documents publicly filed with the SEC (10-Ks); and because Mr. Johnson did not use 10 any generally accepted criteria or methodology to select which financial statistics to include 11 For the Northern District of California and RJR’s “financial condition” is unreliable because it is based solely on numbers obtained 9 United States District Court 8 or not include in his calculations – which potentially incorporate a wide variety of financial 12 statistics (e.g., net sales, net income, cash on hand, executive compensation, cash flows, 13 capital expenditures, available lines of credit, advertising expenditures, stock market 14 values). 15 In the alternative, defendants argue that the only financial metric relevant to a 16 defendant’s ability to pay an award of punitive damages is current net worth. They assert 17 that financial information other than current net worth does not reflect defendants’ ability to 18 pay and should be excluded. 19 In opposition, plaintiff argues that Mr. Johnson is well qualified to provide economic 20 testimony, based on his education, training, and experience. Plaintiff also asserts that Mr. 21 Johnson’s methodology is in line with that of other experts in the forensic economics field. 22 Plaintiff contends that all the matters as to which defendants have issues can be 23 addressed in cross-examination, and that there is no basis to exclude Mr. Johnson as an 24 expert. 25 With regard to the testimony re defendants’ “financial condition,” plaintiff argues that 26 Mr. Johnson will not be telling the jury how high the punitive damages award can go before 27 it will “bankrupt” the defendants. Rather, plaintiff asserts, he will simply be telling the jury 28 that the defendants have the ability to pay punitive damages and what their financial 7 1 2 condition is. Finally, plaintiff contends that defendants are wrong when they assert that “net 3 worth” is the exclusive measure of a defendant’s financial condition. First, plaintiff notes, 4 the CACI jury instruction relevant to punitive damages uses the phrase “financial condition” 5 not the phrase “net worth.” Second, plaintiff asserts, California courts have found that “net 6 worth” is subject to manipulation, and is therefore not the only permissible standard for 7 determining ability to pay. 8 9 The court finds that the motion must be GRANTED in part and DENIED in part. The court finds that Mr. Johnson is sufficiently qualified to render an opinion on economic damages. Nevertheless, his opinions regarding plaintiff’s economic damages are based in 11 For the Northern District of California United States District Court 10 part on what appears to be an unreliable assumption – that plaintiff has been totally unable 12 to perform any household services since 2003, and that she will die of cancer at a particular 13 age. The court finds however that this does not provide a basis for exclusion of the 14 opinion, as it goes to the weight of the testimony, and is therefore an appropriate subject 15 for cross-examination. 16 As for the second part of his opinion, the court agrees with defendants that the 17 opinion regarding PM’s and RJR’s “financial condition” (based on a wide variety of financial 18 statistics) is unreliable, and is not clearly based on any generally accepted criteria or 19 methodology. 20 Under California law, three factors are considered relevant in determining whether a 21 punitive damages award is excessive. These are the degree of reprehensibility of the 22 defendant's conduct; the amount of compensatory damages awarded; and the defendant's 23 financial condition or wealth. Neal v. Farmers Ins. Exchange, 21 Cal. 3d 910, 928 (1978); 24 Bullock v. Philip Morris USA, Inc., 159 Cal. App. 4th 655, 690 n.18 (2008). 25 There is no single required method or standard for determining a defendant's 26 financial condition when evaluating an award of punitive damages. Bankhead v. 27 ArvinMeritor, Inc., 205 Cal. App. 4th 68, 79 (2012). Nevertheless, while it is not the 28 exclusive measure, the defendant's net worth is considered the most common measure of 8 1 a defendant’s financial condition. See Rufo v. Simpson, 86 Cal. App. 4th 573, 624 (2001). 2 Ultimately, “‘[w]hat is required is evidence of the defendant's ability to pay the damage 3 award.’” Baxter v. Peterson, 150 Cal. App. 4th 673, 680 (2007). In addition, the 4 defendant's wealth is to be measured as of the time of the trial on punitive damages. 5 Washington v. Farlice, 1 Cal. App. 4th 766, 777 (1991); Zhadan v. Downtown Los Angeles 6 Motor Distributors, Inc., 100 Cal. App. 3d 821, 839 (1979). 7 Here, plaintiff has not provided any reason to conclude that defendants’ financial 8 condition in this case should be measured by some other value apart from net worth. In 9 addition, Mr. Johnson’s calculations include financial information going back a number of years, which is not appropriate given that defendants’ wealth is to be measured at the time 11 For the Northern District of California United States District Court 10 of the trial on punitive damages. Accordingly, Mr. Johnson will be permitted to testify only 12 as to the “default” measure of defendants’ financial condition – current net worth. 13 3. Dr. Allen H. Smith 14 Dr. Allen H. Smith is an epidemiologist. According to the American Heritage 15 Dictionary, and epidemiologist deals with “causes, distribution, and control of diseases in 16 populations” (not individuals). 17 Dr. Smith received an undergraduate degree in mathematics, with a minor in 18 chemistry in New Zealand in 1964, and a second undergraduate degree in New Zealand in 19 “medicine” in 1969. He has a graduate degree (1970), also from a New Zealand university, 20 which his CV states is the equivalent of an “M.D.” in the United States, as well as a Ph.D. 21 (1975) (not clear in what discipline, but something to do with epidemiology). Dr. Smith has 22 never practiced clinical medicine in the United States, from choice. 23 Since obtaining his Ph.D. he has worked as a researcher and teacher (lecturer, 24 professor) and also as a consultant, in various places in the U.S. and around the world. He 25 currently has an appointment as a Professor of Epidemiology at the U.C. Berkeley School 26 of Public Health, where he supervises graduate students. His CV reflects that he has 27 published extensively, primarily on topics related to arsenic epidemiology. 28 Dr. Smith was retained to offer an opinion as to whether plaintiff’s lung cancer was 9 1 caused by smoking, and has done so in his expert report and in his supplemental expert 2 report. Among other things, he concludes that “scientific evidence over many years has 3 established that smoking is the main cause of lung cancer worldwide,” that “plaintiff was a 4 cigarette smoker over many years,” and that “smoking caused her lung cancer.” 5 Defendants argue that Dr. Smith is not qualified to offer any such opinion, because is not a medical expert, and his opinion about the cause of plaintiff’s lung cancer is outside 8 his expertise as an epidemiologist. Defendants also assert that Dr. Smith arrived at his 9 conclusion that smoking caused plaintiff’s lung cancer by drawing inferences, not by using 10 medical science. They contend that he did not take into account plaintiff’s clinical history, 11 For the Northern District of California he is not licensed to treat patients and has not treated any patients for more than 30 years, 7 United States District Court 6 and instead testified that one can make a valid inference from a study without having the 12 specific data. 13 Defendants note that the court has already ruled that Dr. Cummings, also an 14 epidemiologist, is not qualified to testify regarding the cause of plaintiff’s cancer, and that 15 the same ruling ought to be applied to Dr. Smith, who has a similar background to Dr. 16 Cummings, though a much less extensive expert report. Defendants also argue that the 17 court should strike Dr. Smith’s supplemental report as untimely. 18 To the extent that Dr. Smith intends to opine that smoking caused plaintiff’s lung 19 cancer, the motion is GRANTED. Dr. Smith is an epidemiologist, not a practicing medical 20 doctor, and at most could testify that in his opinion it is likely (based on statistics) that 21 smoking contributed to the development of plaintiff’s lung cancer. Dr. Smith is plainly 22 qualified to testify regarding statistics and the established body of peer-reviewed research 23 and studies linking smoking and lung cancer (or as to any other of his opinions that fall 24 within the category of “epidemiology of cancer”). 25 However, to the extent that any of these opinions were not disclosed in Dr. Smith’s 26 original report, and were disclosed only in the supplemental report submitted on November 27 6, 2012, more than six months after expert discovery cutoff, Dr. Smith will not be permitted 28 to offer such opinions at trial. 10 1 4. Dr. K. Michael Cummings 2 Dr. K. Michael Cummings is an epidemiologist with a focus on public health. He has 3 an undergraduate degree in health education, and graduate degrees (including a Ph.D.) in 4 health education and health behavior. 5 Dr. Cummings is currently a Professor in the Department of Psychiatry and 6 Behavioral Sciences and a co-leader of the Tobacco Research Program in the Hollings 7 Cancer Center at the Medical University of South Carolina in Charleston, South Carolina, 8 where he has worked since October 2011. Prior to that, he worked for thirty years at the 9 Roswell Park Cancer Institute in Buffalo, New York, where he was a senior research scientist and the Chairman of the Department of Human Behavior. During the same period, 11 For the Northern District of California United States District Court 10 he also held the position of Professor in the Department of Social and Preventive Medicine 12 at the State University of New York at Buffalo where he taught graduate-level courses. He 13 has authored (alone or with others) several hundred peer-reviewed articles. 14 In connection with the present case, Dr. Cummings submitted a report in which he 15 provides opinions “relating to tobacco epidemiology, tobacco use behaviors, consumer risk 16 perceptions, tobacco product marketing, addiction and tobacco documents, specifically the 17 industry conspiracy to belittle the known health risks and addictive nature of cigarette 18 smoking.” Specifically, he provides opinions regarding whether plaintiff was addicted to 19 cigarettes; the marketing of cigarette brands smoked by plaintiff; the cigarette industry’s 20 knowledge regarding issues of smoking and health, including the dangers of smoking and 21 addictiveness of cigarettes during the time that plaintiff smoked; and the epidemiological 22 evidence as it pertains to the cause of plaintiff’s illnesses. 23 In a motion filed in conjunction with their motion for summary judgment, defendants 24 moved to exclude Dr. Cummings’ “cigarette design” testimony. The motion was granted. 25 Now defendants seek to exclude Dr. Cummings’ opinions in four categories – opinions 26 regarding advertising and marketing of cigarettes; opinions regarding addiction, including 27 nicotine addiction; opinions regarding risk perception and consumer awareness; and 28 opinions regarding what defendants “knew” or “believed.” 11 1 With regard to the opinions regarding marketing and advertising, defendants note 2 that Dr. Cummings testified that he was not an expert on advertising or marketing practices 3 or their effects, as he has never studied marketing or advertising, never studied consumer 4 marketing in a graduate school setting, never designed an advertising campaign for a 5 commercial product, and never worked for any advertising, marketing, or public relation 6 companies, and does not belong to any professional or academic organizations in the field 7 of advertising or marketing. As for his proposed testimony regarding the effect of 8 advertising on consumers and especially on young people, defendants assert that this 9 testimony should be excluded because Dr. Cummings is not an expert in human behavior, including consumer behavior or child psychology, and that he lacks the required 11 For the Northern District of California United States District Court 10 background and training in those subjects. Defendants also assert that these opinions do 12 not rest on a reliable foundation. 13 With regard to Dr. Cummings’ opinions regarding addiction, defendants assert that 14 any such opinions cannot be relevant, because plaintiff has clearly indicated that she is not 15 seeking any compensation for addiction. In any event, defendants argue, Dr. Cummings 16 testified that he is not a medical doctor, and so cannot give a medical diagnosis of addiction 17 or prescribe medications to help people with addictions, and that he is not a licensed 18 psychologist. Thus, defendants assert, Dr. Cummings is not qualified to testify regarding 19 addiction or to opine that nicotine addiction was a substantial contributing factor to plaintiff’s 20 lung cancer. 21 Defendants also assert that Dr. Cummings’ opinions regarding addiction do not rest 22 on a reliable foundation. He admitted that there are peer-reviewed and generally accepted 23 methods to diagnose addiction, but defendants claim that he testified that he does not use 24 any of them, but instead simply assumes that anyone who smokes every day must be 25 addicted. Defendants contend that he testified that plaintiff was addicted as soon as she 26 became a regular daily smoker, not when she met any recognized criteria for addiction. 27 28 With regard to Dr. Cummings’ opinions regarding risk perception and consumer awareness, defendants assert that Dr. Cummings lacks experience or training in the 12 1 relevant disciplines (survey techniques, history, sociology, psychology, psychiatry); and that 2 his methodology is unreliable, because his opinion that plaintiff was not adequately warned 3 about the risks of smoking is independent of anything he knows about the case and 4 because he supports his opinion primarily by pointing to documents that speak for 5 themselves. 6 Finally, defendants argue that Dr. Cummings’ February 2012 phone interview with 7 plaintiff does not render his opinions admissible. Defendants also object to an affidavit that 8 plaintiff filed in opposition to defendants’ summary judgment motion, in which plaintiff 9 asserts Dr. Cummings made a late effort to supplement his prior opinions (including by citing to information obtained during the February 4, 2012 interview between Dr. Cummings 11 For the Northern District of California United States District Court 10 and plaintiff). Defendants objected to his affidavit in their reply brief, on the basis that 12 plaintiff was not free to supplement Dr. Cummings’ report after the close of discovery. 13 Defendants argue that this new affidavit (which is not part of the present motion) should be 14 disregarded. 15 In opposition, plaintiff asserts that Dr. Cummings is well-qualified to testify as to the 16 subjects identified in defendants’ motion. She contends that Dr. Cummings is well- 17 qualified to testify regarding advertising/marketing because he has taken marketing 18 courses in his graduate training, specifically focused on running public health education 19 campaigns, and has also taught courses on health communications and marketing to 20 graduate students at the University of Buffalo. 21 Plaintiff asserts that Dr. Cummings also designs media campaigns related to 22 tobacco, its hazards, and methods to quit smoking; has received grants for the purpose of 23 looking at the issue of marketing tobacco products, especially to youth; and has published 24 peer-reviewed articles on cigarette advertising and marketing. In addition, as an 25 epidemiologist, he testifies on the relationship between marketing and public health. 26 Plaintiff argues that Dr. Cummings’ advertising and marketing opinions rest on a well- 27 established, reliable foundation, including original data from his own research, published 28 articles, review of internal documents of cigarette companies, testimony of cigarette 13 1 2 company officials, and advertisements from cigarette companies. With regard to the testimony on addiction, plaintiff asserts that Dr. Cummings is one primarily on the health effects of tobacco, smoking cessation, and tobacco use prevention. 5 Plaintiff contends that Dr. Cummings gained this expertise based on his education, training, 6 and experience as an epidemiologist and public health expert, and has combined that 7 knowledge with the practical reality of helping thousands of addicted smokers quit, as the 8 director of a leading smoking cessation clinic. He has trained medical doctors as well as 9 medical and dental students and other health professionals on how to assess nicotine 10 dependence, and has published numerous articles (in peer-reviewed publications) on 11 For the Northern District of California of the foremost experts on nicotine addiction in the country, as his research has focused 4 United States District Court 3 nicotine addiction. 12 With regard to “risk perception and public awareness,” plaintiff asserts that this 13 category of expertise goes hand-in-hand with “advertising/marketing.” Dr. Cummings has 14 done specific research and written articles regarding consumers’ awareness of the health 15 risks of smoking, and plaintiff contends that “it would be hard to conceive of anyone in the 16 United States being more qualified to render opinions regarding the internal tobacco 17 company archives anywhere.” 18 Dr. Cummings issued a supplemental report on November 7, 2012 (the day before 19 plaintiff filed her opposition to the present motion – and which supplemental report 20 defendants argue was untimely) in which he purports to clarify the bases of his opinions, 21 and in which he asserts that he has done research and served on expert committees on the 22 subject of cigarette design and smoking behavior, and that that work has allowed him to 23 understand what information was possessed by consumers and what the tobacco 24 companies knew about the health risks of their products. Plaintiff asserts that Dr. 25 Cummings’ familiarity with the tobacco company documents will enable him to assist the 26 jury in understanding the issues in this case. 27 Fourth, on the related subject of whether Dr. Cummings is qualified to testify 28 regarding what tobacco company officials knew or did not know at a particular time, based 14 1 on the previously “secret” tobacco company documents, plaintiff responds that Dr. 2 Cummings is not trying to “get into the head” of the author of any particular tobacco 3 company document, but asserts that “he has reviewed so many documents that he has 4 seen explanations of motivations and intent.” Plaintiff claims that based on his review of 5 these documents, Dr. Cummings has developed an expertise that it would take the jury 6 “years, if not decades” to develop because the members of the jury would need to become 7 similarly familiar with the documents. Plaintiff contends that Dr. Cummings’ role will be to 8 provide “context” for the tobacco industry documents, and that the documents “will speak 9 for themselves within context.” Finally, on the subject of whether Dr. Cummings’ supplemental report and 11 For the Northern District of California United States District Court 10 declaration filed with plaintiff’s opposition to the motion for summary judgment were 12 “properly disclosed,” plaintiff asserts that Dr. Cummings’ opinions were properly disclosed, 13 and that in any event, if defendants seek to exclude this evidence, a motion in limine is the 14 proper vehicle, not a Daubert motion. 15 The motion is GRANTED in part and DENIED in part. With regard to the 16 “advertising/marketing” category of testimony, the court finds that despite not having a 17 marketing degree, Dr. Cummings is qualified, by education, experience, and training, to 18 opine regarding advertising and marketing in the area of public health. He can be 19 designated as an expert in this limited area without also being an expert in the total 20 universe of commercial marketing and advertising. Defendants’ objections to Dr. 21 Cummings’ opinions appear to go more to the weight of the evidence, rather than to 22 whether the opinions are admissible. Nevertheless, Dr. Cummings’ testimony in this regard 23 will be limited to testimony relevant to the failure-to-warn and concealment claims, and 24 cannot be used by plaintiff as part of an effort to indict the entire tobacco industry. 25 With regard to the “addiction” category, the court finds that Dr. Cummings is 26 qualified by education, experience and training to testify about nicotine addiction and 27 methods of assessing it. Thus, based on his expertise, he would also be qualified to 28 consider the known facts about plaintiff’s smoking history, and render an opinion whether 15 1 she fits into the “addicted to nicotine” category. However, plaintiff is not seeking 2 compensation for nicotine addiction, and any testimony regarding plaintiff’s alleged 3 addiction would therefore be of marginal relevance. 4 With regard to the “risk perception/consumer awareness” category, the court will not 5 permit Dr. Cummings to testify solely as a “summarizer” of documents. While Dr. 6 Cummings’ experience with the tobacco company documents might be relevant to some 7 issue regarding organizing, digitalizing, or indexing documents, it is not relevant to a 8 professed ability to determine the knowledge and intent of corporations. To the extent that 9 the documents discuss complex scientific theories, and that information is within Dr. Cummings’ area of expertise, the court would permit the testimony. However, the court will 11 For the Northern District of California United States District Court 10 not permit testimony purporting to “interpret” what the authors of the documents had in 12 mind when they wrote them (or what PM or RJR “intended” at the time). 13 Finally, with regard to the admissibility of information obtained from Dr. Cummings’ 14 February 4, 2012 interview with plaintiff, and Dr. Cummings’ November 2012 supplemental 15 expert report, the court agrees with defendants that the supplemental report was untimely. 16 Accordingly, no opinions or testimony based on this report will be permitted, including 17 regarding the February 2012 interview of plaintiff. 18 19 IT IS SO ORDERED. 20 Dated: December 5, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 21 22 23 24 25 26 27 28 16

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