Bifolck v. Philip Morris, Inc.

Filing 360

ORDER granting 351 Motion for 48-Hour Advance Notice of Witnesses and Exhibits Before Presentation at Trial; granting in part and denying in part 282 Motion in Limine to Exclude Evidence of and Argument Related to Ammonia Compounds and Other Ad ditives and Ingredients Used in Cigarettes; denying 283 Motion in Limine to Preclude Evidence or Argument that Low Nicotine Cigarettes are not Addictive; denying 285 Motion in Limine to Preclude Expert Testimony by Dr. Grunberg; granting in par t and denying in part 298 Motion in Limine to Preclude Cross-Examination of Plaintiff's Medical Experts Regarding the Market Availability or Design Feasibility of "Safe" or "Safer" Cigarettes; granting 301 Motion in Lim ine to Preclude Testimony, Argument, and Evidence Regarding United States v. Philip Morris, Inc.; denying 304 Motion in Limine to Preclude Opinion Concerning Causation and Cigarette Design Features; granting in part and denying in part [30 5] Motion in Limine to Preclude Plaintiff's Experts' Opinions on Medical Causation; and granting 312 Motion in Limine to Prohibit Questioning about Whether Jeanette Bifolck Would Have Pursued this Action. Signed by Judge Stefan R. Underhill on 9/25/17. (Kaas, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VINCENT J. BIFOLCK,
Plaintiff,

No. 3:06-cv-1768 (SRU)

v.
PHILIP MORRIS, INC.,
Defendant.
CONFERENCE MEMORANDUM AND ORDER
On September 14, 2017, I held a hearing on the pending motions in limine with David
Golub and Jonathan Levine, counsel for the plaintiff, Vincent Bifolck; and Scott Kaiser, Fran
Morrison, Geoffrey Michael, and John Tanski, counsel for the defendant, Philip Morris, Inc.
(“PM”). This order represents a summary of the rulings I made on the record. Where pertinent,
I have included clarifications of my oral rulings such that this order should be the controlling
document regarding my resolution of those motions.
Doc. # 351 – Motion for 48-Hour Advance Notice of Witnesses and Exhibits before
Presentation at Trial
PM moved for 48-hour advance notice of witnesses and exhibits before presentation at
trial. I indicated that this was a reasonable request, and something I generally try to incorporate
in trials, informally or formally. I specified that each party should make best efforts to provide
the other party with notice of testimony and exhibits it intends to offer at trial, and such notice
should be provided at least 48 hours in advance of the evidence being offered. Additionally, I
indicated that each party must make best efforts to give the other 48-hour notice of when it plans
to rest its case, which then shifts the 48-hour notice obligation to the other party. The motion is
granted.

Doc. # 282 – Motion to Exclude Evidence of and Argument Related to Ammonia
Compounds or Other Additives or Ingredients Used in Cigarettes
PM moved to preclude evidence or argument related to the effect of ammonia compounds
or other additives on the addictiveness and/or harmfulness of cigarettes on the grounds that such
evidence lacks sufficient reliability under the Daubert standard and that it is irrelevant and
unduly prejudicial to PM. The ammonia issue has two related but different components: (1)
whether ammonia renders a higher blood level of nicotine; and (2) whether ammonia renders the
cigarette more addictive. On the first point, there seems to be sufficient scientific evidence to
allow expert testimony that adding ammonia to a cigarette increases the level of “free base”
nicotine as opposed to “bound” nicotine, which provides the user with an increased “kick” or
physiological reaction. Expert testimony to that effect is admissible. On the second point,
however, there does not seem to be sufficient scientific evidence to support the theory that the
addition of ammonia to a cigarette, and the resultant “kick,” increases the addictiveness of the
cigarette. It may make the cigarette more enjoyable to the user, but there is insufficient evidence
to correlate that to an increased addictiveness. Accordingly, expert testimony to that effect is
inadmissible.
Regarding the other additives issue, I indicated that expert testimony is admissible to
allow the jury to understand the plaintiff’s theory that these additives made the cigarette more
dangerous or harmful. PM expressed its concern that Bifolck will pick and choose which
additives to discuss, based on the reaction it might receive from the jury, i.e., formaldehyde or
castoreum (found naturally in a secretion from glands near the anal glands of beavers). I
indicated that I thought it was unnecessary for Bifolck to offer an exhaustive list of additives to
prove its contention that cigarettes are more harmful and addictive based on their ingredients.
Bifolck represented that he did not intend to offer evidence on every additive, and agreed to
2

provide PM with advanced notice before eliciting testimony or offering exhibits on specific
additives. For those reasons, the motion is granted in part and denied in part. Specific objections
will be ruled on at trial.
Doc. # 283 – Motion to Preclude Evidence or Argument that Low Nicotine Cigarettes are
not Addictive
PM moved to preclude evidence or argument that low nicotine cigarettes are not
addictive. The testimony PM seeks to preclude, that low-nicotine cigarettes are not addictive,
seems to be the subject of legitimate scientific debate and, therefore, not properly subject to
preclusion by way of a Daubert motion, but, rather, will be the subject of cross-examination.
PM objected, then, to testimony from Bifolck’s experts about a requisite threshold of nicotine,
below which a cigarette is non-addictive. PM argued that it is irrelevant, under Fed. R. Evid.
403, because Bifolck’s expert witnesses had inconsistent opinions about that threshold amount.
Bifolck indicated that all of his experts will testify that the requisite amount of nicotine, below
which a cigarette is non-addictive, is 0.1 milligrams per cigarette. Regarding Dr. Cummings’
expert opinion on the nicotine level, I indicated that Bifolck had not updated its expert disclosure
to include his opinion that a nicotine level at 0.1 mg/cigarette or less renders a cigarette nonaddictive. That is harmless error, however, because PM has frequently deposed Dr. Cummings
regarding his opinions on the addictiveness of cigarettes. I suggested that PM let Bifolck know
if it needed to re-depose Dr. Cummings or Dr. Farone on their opinions regarding a nonaddictive nicotine threshold. For those reasons, the motion is denied. Specific objections will be
ruled on at trial.
Doc. # 285 – Motion to Preclude Expert Testimony by Dr. Grunberg
PM moved to preclude Dr. Grunberg from testifying (1) that there is a minimum effective
dose range of nicotine necessary to initiate and sustain addiction, (2) about medical and public
3

health history regarding cigarettes and nicotine addictiveness data, and (3) that PM has
manipulated cigarette design to foster addiction among smokers. I ruled that any argument about
Dr. Grunberg’s qualifications to testify was not meritorious on the basis of his education,
training, and experience. He has completed doctoral training in pharmacology, he was the
Scientific Editor of the U.S. Surgeon General’s Report on nicotine and addiction, and has served
on numerous working committees involved with this topic. In terms of his qualifications to be
an expert in this area, he has certainly met the Daubert standard. PM further moved to preclude
Dr. Grunberg’s testimony about medical and public health history on the basis that it would be
cumulative, because Bifolck disclosed at least one other witness to testify on that subject. I
suggested that Bifolck decide which of his experts would testify on this topic, and communicate
that to PM within the next week or two. For those reasons, the motion is denied. Specific
objections, including foundation objections, will be ruled on at trial.
Doc. # 298 – Motion to Preclude Cross-Examination of Plaintiff’s Medical Experts
Regarding the Market Availability or Design Feasibility of “Safe” or “Safer” Cigarettes
Bifolck moved to preclude cross-examination of his medical experts regarding the
availability or feasibility of safe and/or safer cigarettes. This issue has two sub-parts: (1)
proposed testimony regarding market availability; and (2) proposed testimony regarding design
feasibility. Bifolck’s medical experts are not sufficiently qualified to testify about the design
feasibility of “safe” or “safer” cigarettes, because they are not cigarette design experts. It is
proper cross-examination, however, to ask the medical experts about their perceptions of the
market availability of “safe” or “safer” cigarettes. PM’s attorneys may ask questions about
whether the witnesses are aware of any cigarettes on the market that they deem “safe” or “safer”
but not about whether it is theoretically possible to design “safe” or “safer” cigarettes. For those

4

reasons, the motion is granted in part and denied in part. Specific objections will be ruled on at
trial.
Doc. # 301 – Motion to Preclude Testimony, Argument, and Evidence Regarding United
States v. Philip Morris, Inc.
PM moved to preclude testimony, argument, and evidence regarding United States v.
Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006), on the grounds that it is inadmissible
hearsay, not subject to any exceptions. I held that the documents that Judge Kessler relied on in
that case are publicly available to Bifolck and are not subject to the same objections as the
court’s findings themselves. The findings are, therefore, not necessary to Bifolck and are not
“more probative on the point for which [they are] offered than any other evidence that the
proponent can obtain through reasonable efforts,” as required by Rule 807, the Residual
Exception to the hearsay rule. Fed. R. Evid. 807. Additionally, the findings do not have any
independent relevance. Therefore, the findings of Judge Kessler are inadmissible hearsay, not
subject to any of the hearsay exceptions, including the residual exception. For that reason, the
motion is granted. Specific objections will be ruled on at trial.
Doc. # 304 – Motion to Preclude Opinion Concerning Causation and Cigarette Design
Features
PM moved to preclude opinion testimony concerning causation and cigarette design
defects in the cigarettes Mrs. Bifolck smoked unless (1) the allegedly defective design feature
was a but-for cause of her injury and death; or (2) Bifolck would have avoided her injury and
death if she smoked cigarettes that incorporated the design changes identified by Bifolck’s
experts. It appears that PM has misconstrued Bifolck’s position. Bifolck does not allege that
any particular design feature of the cigarette is the but-for cause of Mrs. Bifolck’s injuries, but,
rather, the increased amount of tar and nicotine made the cigarettes unnecessarily hazardous and

5

addictive. The design features are simply the modalities of delivering the design defect to the
consumer. PM’s motion was more of a summary judgment motion than a Daubert motion.
Bifolck has alleged sufficient connection between the alleged defects and the harm to Mrs.
Bifolck for Bifolck to present expert testimony at trial. PM can move for judgment as a matter
of law after Bifolck rests his case, if it thinks that Bifolck did not sufficiently prove causation.
Accordingly, the motion is denied. Specific objections will be ruled on at trial.
Doc. # 305 – Motion to Preclude Plaintiff’s Experts’ Opinions on Medical Causation
PM moved to preclude expert testimony by Dr. Strauss and Dr. Posteraro regarding the
medical causation of Mrs. Bifolck’s lung cancer. PM moved to preclude Dr. Posteraro’s
causation testimony because he was not disclosed as an expert witness and did not form a
causation opinion in the course of his treatment of Mrs. Bifolck. Dr. Posteraro, Mrs. Bifolck’s
treating physician, did opine in a deposition that Mrs. Bifolck’s lung cancer was caused by
smoking. From my review of her medical records provided by PM, however, there was nothing
to suggest that Dr. Posteraro formed that opinion during his treatment of Mrs. Bifolck, as
required in order for him to testify to that effect as a fact witness. See Barack v. American
Honda Motor Co., Inc., 293 F.R.D. 106, 109 (D. Conn. 2013). It appears that he formed his
opinion correlating Mrs. Bifolck’s smoking to her lung cancer after his treatment of her ended.
For this reason, Dr. Posteraro can testify about his diagnosis that Mrs. Bifolck had lung cancer,
but not that he believes it was caused by her smoking.
PM moved to preclude Dr. Strauss’ causation testimony because he did not follow the
correct epidemiological procedure to accurately opine that Mrs. Bifolck’s lung cancer was
caused by her smoking, nor could he identify any studies that correlated 30 pack years of
smoking to lung cancer in women under the age of 45. It appears that PM’s issue was not with

6

epidemiology as a scientific method, but with Dr. Strauss’ application of epidemiology to the
facts of this case, which PM can challenge on cross-examination. The combination of articles
Dr. Strauss cited, the Surgeon General’s Report, and the Connecticut Tumor Registry, combine
to provide sufficient scientific support for his opinion that there is a correlation between smoking
and the incidence of lung cancer in women under the age of 45. PM seems to be, in essence,
taking issue with Dr. Strauss’ methodology in coming to his causation opinion, which is better
dealt with on cross-examination. For those reasons, the motion is granted in part and denied in
part. Specific objections will be ruled on at trial.
Doc. # 312 – Motion to Prohibit Questioning about Whether Jeanette Bifolck Would
Have Pursued this Action
Bifolck moved to prohibit PM from eliciting testimony from witnesses, Mrs. Bifolck’s
friends and family, about whether Mrs. Bifolck would have pursued this action herself or wanted
her family to do so on her behalf. This evidence is inadmissible under Fed. R. Evid. 602,
because it is lay opinion not based on observable information; because Mrs. Bifolck never told
anyone her views on this issue, the witnesses do not have first-hand knowledge of what Mrs.
Bifolck would have wanted. Additionally, what Mrs. Bifolck would have wanted is irrelevant.
For those reasons, the motion is granted.
Other Matters
In addition to the motions listed above, I notified the parties that I will issue a ruling shortly
on PM’s Motion on the Statute of Repose (doc. # 281). Additionally, I set the following
deadlines:
-

September 29, 2017: Bifolck provides PM a list of the witnesses he intends to use at trial,
and whether he will elicit live testimony or introduce deposition testimony for each.
September 29, 2017: Parties provide me a list of the potential jurors from the juror
questionnaire administration spreadsheet who the parties believe should be struck for

7

cause.
PM also expressed its desire to receive the names of the potential jurors who participated
in the juror questionnaire administration in order to research them before the October 12 jury
selection. Bifolck originally agreed with PM but then opposed this request. I expressed my
distaste for this practice and asked PM to file a motion requesting the potential jurors’ names and
asked Bifolck to file a response. I have since received PM’s motion.
In addition, Bifolck stated that PM has taken the position that it will not produce its
cigarette design expert, Richard Jupe, for use in Bifolck’s case. It appears that Jupe is outside of
the 100 mile radius provided in Fed. R. Civ. Proc. 45, and, therefore, is not subject to the power
of a subpoena. Bifolck stated that he wanted to take a videotaped trial deposition to present at
trial in lieu of live testimony, to which PM responded that Bifolck had already deposed Jupe in a
videotaped discovery deposition and did not need to depose him again. I suggested multiple
options: (1) Jupe comes to court once during Bifolck’s case and both parties conduct their direct
and cross-examinations in a single session; (2) Jupe videoconferences in for remote live
testimony during Bifolck’s case; or (3) Bifolck deposes him in a short trial deposition and shows
the video at trial. I told the parties to meet and confer about a resolution.
So ordered.
Dated at Bridgeport, Connecticut, this 25th day of September 2017.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

8