Dover v. R.J. Reynolds Tobacco Company et al
Filing
47
OPINION AND ORDER Signed by Hon. Shira A. Scheindlin on 9/19/2014. (RH)
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UNITED STATES DISTRICT COURT
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Plaintiff,
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OPINION AND ORDER
R.J. REYNOLDS TOBACCO COMPANY,
individually and as successor by merger to the
BROWN AND WILLIAMSON TOBACCO
COMPANY and the AMERICAN
TOBACCO COMPANY, PHILIP MORRIS
USA INC., LIGGET GROUP LLC, and
LORILLARD TOBACCO COMPANY,
3:09-cv-11531(SAS)
Defendants.
-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
In advance of trial on individual liability and entitlement to punitive
damages, plaintiff Penny Dover and defendants R.J. Reynolds Tobacco Company,
Phillip Morris USA Inc., and Lorillard Tobacco Company have filed numerous
motions in limine and under Daubert v. Merrell Dow Pharmaceuticals, Inc.
("Daubert"). 1 At a hearing on September 5, 2014, I ruled orally on a number of
these motions and later entered an Order reflecting those rulings. This Opinion and
Order addresses the parties' remaining motions.
I.
BACKGROUND
509 U.S. 579 (1993).
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A.
The Engle Class Action and Findings
This case arises from a state class action brought in 1994 by smokers
against cigarette companies seeking damages for smoking-related illnesses. 2
Following class certification, the trial court developed a three-phase trial plan. In
Phase I, the jury would decide issues common to the class, including general
causation, the defendants' common liability, and entitlement to punitive damages;
in Phase II, the jury would decide individual causation and damages for the class
representatives and the quantum of class-wide punitive damages; and in Phase III,
different juries would decide individual causation and damages for individual class
members. 3 Phase I and II were completed - in Phase I, the jury returned a verdict
in favor of the class on all claims and determined that the class was entitled to
punitive damages, and in Phase II the jury found that certain class representatives
were entitled to compensatory damages, and awarded one hundred and forty five
2
See R.J. Reynolds Tobacco Company v. Engle, 672 So.2d 39, 40 (Fla.
3d DCA 1996). The plaintiffs brought claims for strict liability in tort, fraud and
misrepresentation, conspiracy to commit fraud and misrepresentation, breach of the
implied warranty of merchantability and fitness, negligence, breach of express
warranty, and intentional infliction of mental distress.
3
See Philip Morris USA, Inc. v. Douglas, 110 So. 3d 419, 422 (Fla.
2013) ("Douglas").
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billion dollars in class-wide punitive damages. 4
On appeal, the Florida Supreme Court decertified the class "because
individualized issues such as legal causation, comparative fault, and damages
predominate." 5 The Engle court also reversed the class-wide punitive damages
award. Significantly, however, Engle held that
the following Phase I findings are entitled to res judicata effect: (i)
that smoking cigarettes causes certain named diseases including
COPD and lung cancer [including adenocarinoma]; (ii) that
nicotine in cigarettes is addictive; (iii) that the Engle defendants
placed cigarettes on the market that were defective and
unreasonably dangerous; (iv) that the Engle defendants concealed
or omitted material information not otherwise known or available
knowing that the material was false or misleading or failed to
disclose a material fact concerning the health effects or addictive
nature of smoking cigarettes or both; (v) that the Engle defendants
agreed to conceal or omit information regarding the health effects
of cigarettes or their addictive nature with the intention that
smokers and the public would rely on this information to their
detriment; (vi) that all of the Engle defendants sold or supplied
cigarettes that were defective; (vii) that all of the Engle defendants
sold or supplied cigarettes that, at the time of sale or supply, did
not conform to representations of fact made by said defendants;
and (viii) that all of the Engle defendants were negligent. 6
At the same time, the Phase I findings did not have res judicata effect as to claims
4
See Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1256-57 (Fla.
2006) ("Engle").
5
Id. at 1268.
6
Douglas, 110 So. 3d at 424-25 (quotation marks, citations, and
brackets omitted).
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alleging either fraud and misrepresentation or civil conspiracy based on
misrepresentation. This was because the findings were "inadequate to allow a
subsequent jury to consider individual questions of reliance and legal cause." 7
B.
The Amended Complaint 8
Plaintiff suffers from Coronary Heart Disease and Chronic
Obstructive Pulmonary Disease ("COPD"). 9 Relying on the Phase I findings, she
"brings this action upon the limited remaining issues in dispute[:] specific
causation, apportionment of damages, comparative fault, compensatory damages,
entitlement to punitive damages, and punitive damages." 10 She asserts claims for
7
Engle, 945 So. 2d at 1255.
8
Plaintiff filed an Amended Complaint on October 3, 2013 (the
"Amended Complaint").
9
See Amended Complaint ,-i 4.
10
Id. ,-i 99. Notably, the jury's Phase I findings in Engle include that
[s]mo king cigarettes causes aortic aneurysm, bladder cancer,
cerebral vascular disease, cervical cancer, chronic obstructive
pulmonary disease, coronary heart disease, esophageal cancer,
kidney cancer, laryngeal cancer, lung cancer (specifically,
adenocarcinoma, large cell carcinoma, small cell carcinoma, and
squamous cell carcinoma), complications of pregnancy, oral
cavity/tongue cancer, pancreatic cancer, peripheral vascular
disease, pharyngeal cancer, and stomach cancer.
Id. ,-i 106(a) (emphasis added). The Phase I findings also include that nicotine is
addictive, defendants' products were defective and unreasonably dangerous,
-4-
strict liability, civil conspiracy to fraudulently conceal, fraudulent concealment,
negligence and gross negligence, breach of express warranty, and breach of
implied warranty. 11
II.
LEGAL STANDARD
A.
Motions in Limine
The purpose of a motion in limine is to "enabl[ e] the Court to rule in
advance of trial on the relevance of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or interruption of, the trial." 12
Evidence is relevant if it has "any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable
than it would be without the evidence." 13 Under Rule 403, even relevant evidence
"may be excluded if its probative value is substantially outweighed by the danger
defendants concealed or omitted, both individually and in tandem, material
information about the health effects and addictive nature of cigarettes, and that
defendants sold or supplied cigarettes that did not conform to factual
representations they made about those cigarettes. See id. iii! 106(b)-(g).
II
See id.
iii! 115-139.
12
Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). Accord Luce v.
United States, 469 U.S. 38, 40 n. 2 (1984) (stating that the purpose of motions in
limine are to allow a court to rule on the admissibility of potential evidence in
advance of trial).
13
Fed. R. Evid. 401. Under Rule 402, irrelevant evidence is
inadmissible.
-5-
of unfair prejudice, confusion of issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence." A court will exclude evidence on a motion in limine only if
it is clear that the evidence is inadmissible on all potential grounds. Accordingly,
courts may reserve judgment on motions in limine until trial, and any ruling on
such a motion is subject to change in the court's discretion as the case unfolds.
B.
Federal Rule of Evidence 702 and Daubert
Daubert and Federal Rule of Evidence 702 "plainly contemplate[]
that the district court will serve as a gatekeeper to the admission of scientific
testimony." 14 In determining the admissibility of expert testimony, courts in the
Eleventh Circuit consider whether:
( 1) [T]he expert is qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the
evidence or to determine a fact in issue. 15
To be admissible, the proposed expert testimony must be based "on a reliable
14
Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d
1333, 1340 (11th Cir. 2003).
15
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th
Cir. 1998) (citing Daubert, 509 U.S. at 589).
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foundation." 16 In assessing reliability, the trial judge should consider whether:
( 1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and
(3) the witness has reliably applied the principles and methods to
the facts of the case. 17
Finally, trial courts must consider only the admissibility of expert evidence rather
than its weight or credibility. As the Supreme Court has explained, "[ v]igorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but
admissible evidence." 18
III.
DISCUSSION
A.
Plaintiff's Motion in Limine Seeking to Exclude "Empty-Chair"
Arguments Attributing Fault to Non-Party Cigarette Companies
Plaintiffs smoking history includes brands of cigarettes manufactured
by non-parties, including Dosal Tobacco Corporation's "305" brand. According to
16
Daubert, 509 U.S. at 597. Accord Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147-49 (1999).
17
Fed. R. Evid. 702.
18
Daubert, 509 U.S. at 596. Accord Allison v. McGhan Med. Corp.,
184 F.3d 1300, 1311 (11th Cir. 1999) (stating that the district court's role under
Daubert "is not intended to supplant the adversary system or the role of the jury");
Rosenfeldv. Oceania Cruises, 654 F.3d 1190, 1193 (11th Cir. 2011) (stating that
the district court should not "make ultimate conclusions as to the persuasiveness of
the proffered evidence") (quotation marks omitted).
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defendants, plaintiff testified that she smoked 305s "on a regular basis from the
1990s [to the] present," and that she "smoked only these (non-party manufactured)
cigarettes for at least the last 14 years." 19 Defendants also assert that plaintiff
changed her position at her deposition, claiming that she had smoked 305s for a
shorter time period. 20
Relying on the Florida Supreme Court's decision in Fabre v. Marin,
plaintiff argues that defendants should be precluded from "attempting to place fault
with non-parties whose liability has not been pled or proved." 21 She argues that
under Florida law, "a defendant's percentage of fault cannot be compared to that of
a non-party unless the defendant specifically pleads the non-party's identity, pleads
the non-party's negligence as an affirmative defense, and puts forth supporting
evidence." 22 According to plaintiff, "[a]rguing a non-party caused some of the
19
Defendants' Response to Plaintiffs Case-Specific Motion in Limine
("Def. Case-Specific Resp."), at 1 (quotation marks omitted) (emphasis in
original). Defendants also state that plaintiffs husband confirmed this testimony
at his deposition, indicating that 305s were her main brand and that she had started
smoking them in the 1990s. See id.
20
See id. at 2.
21
Plaintiffs Case-Specific Motions in Limine ("Pl. Case-Specific
Mem."), at 3.
22
Id. (citing Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262,
1264 (Fla. 1996) ("Nash"); Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993)
("Fabre"), receded from on other grounds, Wells v. Tallahassee Mem 'l Reg'l Med.
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plaintiffs injury without actually pleading or demonstrating that non-party's
negligence is a form of the highly prejudicial 'empty chair' defense not permitted
under Florida law." 23
However, the Fabre rule only applies when a defendant is seeking to
apportion fault by establishing the comparative negligence of a non-party. 24 It does
not prohibit a defendant from arguing that the conduct of a non-party is the
proximate cause of plaintiffs injuries. 25 As a consequence of Engle, it is plaintiffs
Ctr., Inc., 659 So.2d 249, 254 (Fla. 1995)).
23
Id.
24
The Fabre defense was born out of judicial disagreement over the
interpretation of a then-newly enacted comparative negligence statute. See, e.g.,
Allied-Signal, Inc. v. Fox, 623 So. 2d 1180, 1182 (Fla. 1993) ("In Fabre we
adopted the rationale of Messmer [v. Teacher's Ins. Co., 588 So. 2d 610 (Fla. 5th
DCA 1991)], holding that section 768.81(3), Florida Statutes (1989), requires that
liability be apportioned to all participants in an accident in order to determine a
defendant's percentage of fault."). In relevant part, the statute provides that "[i]n a
negligence action, the court shall enter judgment against each party liable on the
basis of such party's percentage of fault and not on the basis of the doctrine of joint
and several liability." Florida's Supreme Court later made clear that because a
Fabre defense is an affirmative defense, it had to be plead and proven before the
issue of the non-party's comparative negligence could be included on the verdict
sheet. See Nash, 678 So. 2d at 1264.
25
See Pearson v. Royal Caribbean Cruises, Ltd., 751So.2d 125, 126
(Fla. 3d DCA 2000) (citing Clement v. Rousselle Corp., 372 So. 2d 1156, 1158
(Fla. 1st DCA 1979) ("A defendant who has answered with a general denial, is
entitled to prove, and to argue to the jury, that the accident was due solely to the
negligence of a person not party to the suit."), cert. denied, 383 So. 2d 1191 (Fla.
1980)); Loureiro v. Pools by Greg, Inc., 698 So. 2d 1262, 1264 (Fla. 4th DCA
-9-
obligation to prove "individualized issues such as legal causation .... " 26 At the
same time, defendants are entitled to rebut plaintiff's proof of causation with
evidence that she smoked non-party brands for significant periods of time. 27 They
may also use this evidence to impeach plaintiffs credibility - but only to the extent
that her sworn statements about smoking 305s are in fact contradictory- and to
refute plaintiffs claims that the design of defendants' cigarettes stopped plaintiff
from quitting smoking.
B.
Defendants' Motion in Limine to Exclude Dr. David Burns M.D.'s
Opinion that Changes in Cigarette Design Have Increased the
Risk of Adenocarcinoma
Defendants seek to exclude Dr. David Bums' opinion that changes in
cigarette design have increased the risk of developing adenocarcinoma, a type of
1997) ("Even had the issue of non-party liability been omitted from the
instructions and the verdict form, [defendant] could still have contended at trial
that it was not negligent and that the negligence of others was the sole legal cause
of injury."); Reed v. Dollar General Corp., No. 05-cv-1440T24, 2005 WL
2062231, at *2 (M.D. Fla. Aug. 23, 2005) (stating that it is not an affirmative
defense for a defendant in a negligence action to argue that plaintiffs injury
resulted from someone else's negligence).
26
Engle, 945 So.2d at 1268.
27
See Def. Case-Specific Opp. at 3 (citing Engle-related cases in which
evidence of a plaintiffs use of cigarettes manufactured by a non-party was
permitted).
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lung cancer. 28 They contend that Dr. Bums' opinion is not relevant because
plaintiff does not seek damages for injuries related to adenocarcinoma or any other
form of cancer. Plaintiff argues that Dr. Bums' testimony is relevant to
comparative fault, fraud and conspiracy, and punitive damages.
With respect to comparative fault, 29 plaintiff argues that the testimony
is relevant because defendants' "negligent conduct contributed to [her] multiple
smoking-related diseases, and the jury should be allowed to consider it in
determining any allocation of fault." 30 She also argues that Dr. Bums' opinion is
necessary to rebut defendants' contention that she was and is aware of the risks of
smoking. 31 In this regard, she states that "she could not have known all of the risks
of smoking, because critical information regarding the increased risk of smoking
was not available until long after she became addicted and suffered irreparable
28
See Defendants' Case-Specific Motions in Limine ("Def. CaseSpecific Mem."), at 1-2.
29
See Hoffman v. Jones, 280 So.2d 431, 439 (Fla. 1973) (stating that
comparative fault "allow[ s] a jury to apportion fault as it sees fit between negligent
parties whose negligence was part of the legal and proximate cause of any loss or
injury; and ... apportions the total damages resulting from the loss or injury
according to the proportionate fault of each party").
30
Plaintiffs Opposition to Defendants' Case-Specific Motions in
Limine ("Pl. Case-Specific Opp."), at 2.
31
See id.
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harm." 32 With respect to the fraud and conspiracy claims and punitive damages,
plaintiff argues that even as defendants claimed over a fifty-year period that they
were cooperating with public health authorities, they were "conceal[ing] from both
the government and from smokers, ... [like herself], that filters and other design
changes were making their products more dangerous, not less." 33
In making these arguments, plaintiff ignores defendants' specific
objection - which concerns Dr. Bums' theory about the relationship between
cigarette design and the increased risk of adenocarcinoma - and focuses on
defendants' conduct over a fifty-year period in concealing the overall risks
associated with their products. 34 However, defendants deny that they, or anyone
else, were aware of the specific design defect related to adenocarcinoma at the time
the designs were implemented, plaintiff first started using cigarettes, or when she
became addicted to them, and plaintiff does not suggest otherwise. 35 This is
32
Id. at 3.
33
Id. (stating that plaintiff "will argue that she relied to her detriment on
this concealment and conspiracy - both in continuing to smoke and in purchasing
cigarettes with filters and those marketed as delivering 'lower tar[,]'" and that if
defendants "had been honest about the true risks of their products - including the
increased risk of developing certain cancers - Mrs. Dover could have made an
informed choice and avoided her injuries") (emphasis in original).
34
See id. at 1.
35
See Def. Case-Specific Mem. at 3-4.
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because, Dr. Bums' "theory is new" having been "first articulated and relied on by
him ... within the last year" as reflected in the 2014 Surgeon General's Report on
the health consequences of smoking. 36
Accordingly, I find that based on the current record, plaintiff has not
established that Dr. Bums' opinion as to cigarette design and the increased risk of
adenocarcinoma is relevant to notice or the defendants' failure to act based on that
notice. For this same reason, the testimony is not relevant to her claim for punitive
damages, which requires convincing evidence that defendants "had actual
knowledge of the wrongfulness of the conduct and the high probability that injury
or damages to the claim would result and, despite that knowledge, intentionally
pursued that course of conduct, resulting in injury or damage." 37
Dr. Bums' opinion is not relevant to plaintiff's strict liability claim for
the additional reason that she does not suffer from any form of lung cancer, and
under Florida Law strict liability claims require proof of a "proximate causal
connection between [the defective] condition and the user's injuries or damages." 38
36
Id. (emphasis in original); see 7/1/14 Burns Deposition, Ex. B to
Case-Specific Mem., at 292 (indicating that the link between cigarette design and
increased risk of adenocarcinoma was based on studies published after the 2010
Surgeon General's Report on smoking).
37
Fla. Stat. § 768.72(2)(a).
38
West v. Caterpillar Tractor Co., 336 So. 2d 80, 87 (Fla. 1976).
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And the suggestion that if plaintiff had only known about the increased risk of this
particular type of lung cancer, she would not have smoked or would have quit
smoking despite her nicotine addiction, is implausible, and in any event of limited
probative value compared with the potential for prejudice or confusion of the
issues under Federal Rule of Evidence 403. In this regard, I note that the Rule 403
factors are generally applied more stringently when evaluating the admissibility of
expert testimony. 39 For example, in a case involving an Engle plaintiff that had
lung cancer, but not adenocarcinoma, the trial judge excluded the proposed
testimony, finding that the "probative value is fairly slight" and outweighed by
"the risk of unfair prejudice." 40 In short, plaintiff's proffer at this stage is
39
See Def. Case-Specific Mem. at 5 (citing Allison, 184 F .3d at 1310).
40
5/1/14 Transcript in Starbuck v. R.J Reynolds Tobacco Co., No. 09cv-13250, Ex. G to Def. Case Specific Mem., at 35-36. As defendants note, three
trial courts have granted defendants' motion to exclude Dr. Bums' testimony in
Engle cases that did not involve lung cancer. See 4130114 Order in Burkhart v. R.J
Reynolds Tobacco Co., No. 09-cv-10727 ("Burkhart"), Ex. D to Def. Case-Specific
Mem.; 7/9/14 Transcript in Harris v. R.J Reynolds Tobacco Co., No. 09-cv-13482
(holding that the testimony would be excluded subject to "revisiting if the door is
opened"), Ex. E to Def. Case-Specific Mem.; 6/16/14 Transcript in Davis v. R.J
Reynolds Tobacco Co., No. 09-cv-1147, Ex. F to Def. Case-Specific Mem. In
Burkhart, the trial court later allowed Dr. Burns' testimony. See 5/19/14 Trial
Transcript, Docket No. 122 in Burkhart, at 59-64. The court permitted the
evidence after defendants, on cross-examination, went through years of
progressively more recent Surgeon General's Reports that gave the impression that
the risk of disease from cigarettes had lessened over time. Because the 2014
Surgeon General's Report included Dr. Bums' opinion that cigarettes had become
more dangerous with respect to adenocarcinoma, this evidence was allowed on re-14-
insufficient to permit Dr. Bums' testimony regarding cigarette design and the
increased risk of adenocarcinoma.
C.
Defendants' Motion to Exclude Certain Testimony of Plaintiffs
Expert Neil Grunberg, Ph.D.
Dr. Neil Grunberg has testified in a number of tobacco-related cases
in federal and state courts, including in Florida. 41 He is not a medical doctor, but
has a doctorate in psychology and has also completed doctoral training in
pharmacology. 42 He is Professor of Medical and Clinical Psychology, Professor of
Neuroscience, and Professor of Military and Emergency Medicine at the F. Edward
Hebert School of Medicine at the Uniformed Services University of the Health
Sciences in Bethesda, Maryland. 43
direct with the limiting instruction that the case involved COPD, not cancer. See
id. at 62-64.
41
See Plaintiffs Opposition to Defendants' Motion to Exclude Certain
Testimony by Plaintiffs Expert Neil Grunberg, Ph.D. ("Pl. Grunberg Opp."), at 1.
Counsel for plaintiff filed the same opposition in two other Engle-related cases,
Berger v. Philip Morris USA Inc., No. 09-cv-14157 ("Berger") and Kerrivan v.
R.J. Reynolds Tobacco Co., No. 09-cv-13703 ("Kerrivan"). In Berger, Judge
James G. Carr permitted Dr. Grunberg to testify on the two issues discussed in this
Memorandum Opinion and Order. See Berger Docket No. 72 at 8-9. Defendants'
motion is currently pending in Kerrivan.
42
See 6111114 Expert Report of Neil E. Grunberg, Ph.D. ("Grunberg
Report"), Ex. 1 to Pl. Grunberg Opp.,~ 2.
43
See id. ~ 1.
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1.
"Minimum Effective Dose"
In his report, Dr. Grunberg states that "there is an effective dose range
of nicotine necessary to initiate and sustain addiction." 44 According to defendants,
"[t]his theory, known as the 'minimum effective dose' theory, was invented by
plaintifff s] experts ... to prove that [d]efendants' cigarettes were defective, and to
support a proposition that a safer alternative design would be a cigarette" with
lower nicotine levels than the minimum effective dose. 45 Defendants argue that Dr.
Grunberg should not be permitted to testify concerning this theory because he has
no expertise in pharmacology, the testimony is speculative and unreliable due to
"analytical flaws," and the theory is irrelevant and "highly prejudicial." 46
After a careful review of Dr. Grunberg's education, professional
qualifications, and professional work, I find that he is qualified to opine on
addiction and the minimum effective dose of nicotine. For example, Dr. Grunberg
"wrote his doctoral dissertation on the effects of nicotine on the brain, and then, as
the Scientific Editor of the 1988 Surgeon General's Report on Nicotine Addiction,
44
Id.~
88.
45
Defendants' Motion to Exclude Certain Testimony of Plaintiffs
Expert Neil Grunberg, Ph.D. ("Def. Grunberg Mem."), at 3 (citing Grunberg
Report~~ 88-131).
46
Id. at 4. Accord id. at 4-8.
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spent years studying and compiling research to determine why people smoke," 47
and has published extensively on nicotine addiction. 48 His education and
professional work also includes pharmacology, particularly with respect to the
effects of nicotine. 49 Finally, defendants' contentions regarding methodology,
relevance, and prejudice all go to the weight, not the admissibility, of Dr.
Grunberg's opinion.so
2.
Cigarette Advertising and Marketing
Dr. Grunberg offers several opinions regarding defendants' marketing
strategies and the effects of cigarette advertisements on the public, including
adolescents.s 1 Defendants argue that such testimony should be excluded because
47
Pl. Grunberg Opp. at 3.
48
See generally Curriculum Vitae of Neil Everett Grunberg, Ex. 5 to Pl.
Grunberg Opp.
49
See Pl. Grunberg Opp. at 4 n.3 & n. 4 (listing publications). As
plaintiff notes, "[t]he specialized knowledge necessary for expert testimony may be
derived from experience, as well as from education or training." Id. at 3 (citing
Fed. R. Evid. 702; Kumho Tire Co., 526 U.S. at 147).
so
See Berger Docket No. 72 at 8.
See, e.g., Grunberg Report iii! l 6Q) ("Defendants' cigarettes with
varying reported nicotine deliveries remain dangerous, and in fact, some are even
more dangerous, because Defendants cultivated a perception among the public and
the public health community that filtered, light and 'low' yield cigarettes were a
safer alternative"), 16(1) ("Defendants' advertising affects cigarette use in
adolescents").
51
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Dr. Grunberg "concedes that he is not an expert in marketing or advertising" or on
"consumer awareness issues or consumer acceptability." 52
After careful review of Dr. Grunberg's education, professional
qualifications, and professional work, I find that he is qualified to testify
concerning cigarette advertising and marketing. "As a trained social psychologist
who studies tobacco use and addiction, Dr. Grunberg ... possesses expertise on the
social forces that influence a smoker's tobacco use." 53 In addition, Dr. Grunberg's
past and current experience includes work on campaigns to prevent smoking. 54
Such testimony will be "subject to objections sustained at trial, this Court's prior
evidentiary Orders, and Master Docket evidentiary rulings." 55
IV.
CONCLUSION
For the foregoing reasons, plaintiffs motion to exclude evidence that
52
Def. Grunberg Mem. at 14 (citations omitted).
53
Pl. Grunberg Opp. at 16. As explained by Dr. Grunberg, "one of my
areas of concentration was social psychology, which includes attitude formation
change and how to influence other people." 8/7/14 Grunberg Deposition
("Grunberg Dep."), Ex. 6 to Pl. Grunberg Opp., at 4 72.
54
See Pl. Grunberg Opp. at 16 (noting that in the past Dr. Grunberg
served as scientific director and chair of the Robert Wood Johnson Foundation's
Youth Tobacco Prevention Initiative and worked as a scientific consultant for a
public health marketing campaign relating to cigarettes); Grunberg Dep. at 4 74475 (same).
55
Berger Docket No. 72 at 9.
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she smoked cigarettes manufactured by non-parties is DENIED; defendants'
motion to exclude Dr. Burns' testimony regarding cigarette design and the
increased risk of adenocarcinoma is GRANTED; and defendants' motion to
preclude Dr. Grunberg's testimony regarding "minimum effective dose" and
cigarette advertising is DENIED.
Dated:
New York, New York
September 19, 2014
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-AppearancesFor Plaintiff:
Charlie Easa Farah, Jr., Esq.
Farah & Farah, PA
3rd Floor
10 W Adams St
Jacksonville, FL 32202
Janna B. McNicholas, Esq.
Norwood Sherman Wilner, Esq.
Richard J. Lantinberg, Esq.
Stephanie J. Hartley, Esq.
The Wilner Firm, PA
2nd Floor
444 E Duval St
Jacksonville, FL 32202
Kenneth S. Byrd, Esq.
John T. Spragens, Esq.
Kathryn E. Barnett, Esq.
Lieff, Cabraser, Heimann & Bernstein, LLP
Suite 1650
150 Fourth Ave N
Nashville, TN 37219
Martin D. Quinones, Esq.
Todd A. Walburg, Esq.
Robert J. Nelson, Esq.
Sarah R. London, Esq.
Lieff, Cabraser, Heimann & Bernstein, LLP
275 Battery St
29th Fl.
San Francisco, CA 94111
-20-
For Defendant R.J. Reynolds:
David M. Monde, Esq.
John F. Yarber, Esq.
Stephanie E. Parker, Esq.
Jones Day
Suite 800
1420 Peachtree St NE
Atlanta, GA 30309
David Clifford Reeves, Esq.
Jeffrey Alan Yarbrough, Esq.
Joseph W. Prichard, Jr., Esq.
Robert B. Parrish, Esq.
Moseley, Prichard, Parrish, Knight & Jones
Suite 200
501 W Bay St
Jacksonville, FL 32202
James B. Murphy, Jr., Esq.
Terri L. Parker, Esq.
Shook, Hardy & Bacon, LLP
Suite 2900
100 N Tampa St
Tampa, FL 33602
Joshua Reuben Brown, Esq.
Greenberg Traurig, LLP
450 S Orange Ave - Ste 650
PO Box 4923
Orlando, FL 32802-4923
For Defendant Philip Morris:
Keri L. Arnold, Esq.
Arnold & Porter, LLP
34th Floor
399 Park Ave
-21-
New York, NY 10022
M. Sean Laane, Esq.
Judith Bernstein-Gaeta, Esq.
Maura McGonigle, Esq.
Arnold & Porter, LLP
555 12th St NW
Washington, DC 20004-1206
Nathan D. Foster, Esq.
Arnold & Porter, LLP
Suite 4400
370 Seventeenth St
Denver, CO 80202-1370
For Defendant Lorillard Tobacco:
Aviva L. Wernick, Esq.
Rafael Cruz-Alvarez, Esq.
Hughes, Hubbard & Reed, LLP
Suite 2500
201 S Biscayne Blvd
Miami, FL 33131-4332
Gay Tedder, Esq.
Hughes, Hubbard & Reed, LLP
Suite 2000
2345 Grand Blvd
Kansas City, MO 64108
JeffH. Galloway, Esq.
Robb W. Patryk, Esq.
Theodore V.H. Mayer, Esq.
Hughes, Hubbard & Reed
One Battery Park Plaza
New York, NY 10004
Wilfred P. Coronato, Esq.
-22-
Hughes, Hubbard & Reed, LLP
Suite 3601
101 Hudson St
Jersey City, NJ 07302-3910
John Andrew DeVault, III, Esq.
Patrick P. Coll, Esq.
Bedell, Dittmar, De Vault, Pillans & Coxe, PA
The Bedell Bldg
101 E Adams St
Jacksonville, FL 32202
Lorence Jon Bielby, Esq.
Greenberg Traurig, LLP
101 E College Ave
Tallahassee, FL 32301
Stephen L. Saxl, Esq.
Greenberg Traurig, LLP
Metlife Building
200 Park Ave
New York, NY 10166
-23-
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