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In re Application of American Tobacco Co.

decided: July 21, 1989.

IN THE MATTER OF THE APPLICATION OF THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, AND PHILIP MORRIS, INC., MOUNT SINAI SCHOOL OF MEDICINE AND THE AMERICAN CANCER SOCIETY, APPELLANTS,
v.
THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, AND PHILIP MORRIS, INC., APPELLEES



Appeal from an order of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, holding appellants in civil contempt for refusing to comply with subpoenas. Affirmed.

Lumbard, Feinberg, and Kearse, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge

Mount Sinai School of Medicine ("Mount Sinai") and The American Cancer Society ("ACS") appeal from a final order of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, holding them in civil contempt for failing to comply with orders of the court requiring them to respond to subpoenas served by appellees The American Tobacco Company ("American"), R.J. Reynolds Tobacco Company ("Reynolds"), and Philip Morris, Inc. ("Philip Morris") (collectively the "tobacco companies"), requesting research data for use in lawsuits to which Mount Sinai and ACS are not parties. On appeal, Mount Sinai and ACS challenge interlocutory orders that (1) denied their motion to quash the subpoenas on grounds of res judicata, collateral estoppel, and privilege, and (2) denied in part their motion for a protective order permitting redaction of the subpoenaed materials to prevent identification of persons who were subjects of the research. For the reasons below, we uphold the orders of the district court.

I. BACKGROUND

Each of the tobacco companies is a defendant in one or more product liability suits pending in state or federal courts around the country (the "underlying suits"), in which the plaintiffs allege that their decedents died of lung cancer caused by a combination of cigarette smoking and exposure to asbestos. Mount Sinai and ACS are not parties to those suits, and neither they nor members of their medical staffs are expected to be called as witnesses. The tobacco companies expect, however, that the plaintiffs will rely on expert testimony that in turn will rely on seminal studies made by certain members of the medical staffs of Mount Sinai and ACS. The tobacco companies seek to subpoenae the data underlying these studies.

A. The Selikoff Studies and Past Subpoenas

Dr. Irving J. Selikoff, a professor of medicine at Mount Sinai, is the principal author of, inter alia, two articles whose medical conclusions support the plaintiffs' claims in the underlying suits. See Hammond, Selikoff & Seidman, Asbestos Exposure, Cigarette Smoking and Death Rates, 330 Annals N.Y. Acad. Sci. 473 (1979); Selikoff, Seidman & Hammond, Mortality Effects of Cigarette Smoking Among Amosite Asbestos Factory Workers, 65 J. Nat'l Cancer Inst. 507 (1980). Earlier studies had shown that cigarette smoking may cause cancer and that exposure to asbestos may also cause cancer. The Selikoff articles suggested that when cigarette smoking was combined with occupational exposure to asbestos, the risks of developing cancer increased geometrically rather than arithmetically. The authors concluded that these data suggested a synergistic relationship between the hazards of smoking and of exposure to asbestos.

For the 1979 article, the period of study ran from 1967 through 1976; for the 1980 article, the period of study ran from 1961 through 1977. Some 11,000 asbestos workers were subjects of the research reported in these two articles. Using a wide range of sources, Dr. Selikoff accumulated a variety of personal data on his subjects. Some information was received through the personal examination of approximately 500 subjects who were treated by Dr. Selikoff in connection with research for the two articles. Along with basic identifying details such as names, places of residence, and union affiliations, the assembled information included such items as dates of birth, dates and causes of death, periods of exposure to asbestos, smoking habits, evidence of cancer, and other relevant medical history. Dr. Selikoff assured his research subjects that the information they provided would remain confidential.

Much of the raw data was eventually recorded on computer tapes to facilitate statistical analysis and convenient storage. The Selikoff research continued after the publication of the 1979 and 1980 articles, and the computer tapes were updated frequently with new information.

In 1986, Reynolds served Mount Sinai and ACS with subpoenas issued by a state court in New York in connection with an action pending in state court in California, see Page v. Lincoln Electric Co., No. 257046 (Cal.Super.Ct.) (the "Page subpoenas"). The Page subpoenas sought all the data underlying the 1979 and 1980 Selikoff articles, as well as data underlying a 1968 article. Each subpoena provided, in pertinent part, as follows:

Documents To Be Produced

1. This subpoena covers documentation, data collections, or data bases (the "raw data") that formed the basis for the [1968, 1979, and 1980 articles];

2. Documents which describe, constitute, comment upon, criticize, review or concern the research design, methodology, sampling protocol, and/or conduct of any of the studies;

3. Copies of the questionnaires, answers to questionnaires, interview forms, responses to interviews, death certificates, autopsy reports, and other cause of death data. . . .;

4. Data sheets, computer tapes and/or copies of computer discs containing all coded data. . . .;

6. This request is intended to cover all available data used, in as "raw" a form as possible. . . .

(Emphasis added.)

Mount Sinai and ACS moved to quash the Page subpoenas in New York state court. That court, after discussing both the interests of scholars with respect to their research and the burdens of producing the data called for by the Page subpoenas, granted the motions to quash. In re R.J. Reynolds Tobacco Co., 136 Misc. 2d 282, 518 N.Y.S.2d 729 (Sup.Ct. 1987) (" Reynolds "). The court stated, in pertinent part, as follows:

Reynolds' subpoena . . . are not selective. Rather, they are sweeping and indiscriminate.

A subpoena may be challenged on the grounds that it is overbroad, burdensome or oppressive. . . . A subpoena may be vacated for reasons of privilege, whether statutory or constitutional, or having its genesis under common law. . . .

CPLR 3101 provides that "[there] shall be a full disclosure of all evidence . . .", which means all relevant information calculated to lead to relevant evidence. . . . The data requested must be material and necessary although it need not be indispensable. . . . The rules of evidence may be considered when determining necessity of the requested material. But inadmissibility by itself may not be a reason for denying access to the information, since such information may lead to evidence. In addition, its use in cross-examination can be a consideration.

However, when compliance with subpoenae would be so oppressive as to hinder the normal functioning of a Department of the medical school and/or of the American Cancer Society for a prolonged period of time, the Court on motion or on its own initiative may provide appropriate relief.

This is especially so because Mt. Sinai and the American Cancer Society are complete strangers to the underlying litigation. Neither Dr. Selikoff nor his co-authors will be witnesses at the Page trial. They are not consultants in that matter, nor was decedent Page a subject of their medical investigation.

Policy in New York, unlike most other jurisdictions, has accorded privilege to experts. . . . The United States Supreme Court held in the notable case of Branzburg v. Hayes, 408 U.S. 665, 688, 33 L. Ed. 2d 626, 92 S. Ct. 2646 [(1972),] "that 'the public . . . has a right to every man's evidence,' except for those ...


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