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TOMPKINS v. R.J. REYNOLDS TOBACCO CO.
March 3, 2000
JOANN TOMPKINS, INDIVIDUALLY; AND STEPHEN G. TOMPKINS, AS EXECUTOR FOR THE ESTATE OF RICHARD F. TOMPKINS, PLAINTIFFS,
R.J. REYNOLDS TOBACCO COMPANY, DEFENDANT.
The opinion of the court was delivered by: Scullin, District Judge.
MEMORANDUM-DECISION AND ORDER
Richard F. Tompkins died in 1996 at the age of 68. For purposes
of the motions pending before this Court, the parties agree that
he died from lung cancer caused by smoking. He is said to have
started smoking around the age of 10. He predominantly smoked
unfiltered Camel cigarettes — an average of one pack per day.
Since the mid-1950s, his wife encouraged him to quit. In the
1960s, the Surgeon General issued a report on smoking and health,
and Congress mandated that warnings be placed on cigarette
packaging. In 1984, Mr. Tompkins was diagnosed with high blood
pressure and kidney problems, which his doctors said were related
to smoking. In 1988, the Surgeon General issued another report
concluding that smoking was an addiction. In 1990, Mr. Tompkins'
doctor again encouraged him to quit. Mr. Tompkins was diagnosed
with lung cancer in 1995, and he died the next year. Although Mr.
Tompkins on several occasions tried to quit smoking, each attempt
was unsuccessful. He said he would quit when he believed
cigarettes were a real hazard to a person's health.
Mr. Tompkins' wife and son are the Plaintiffs in this action.
They have brought suit against Defendant R.J. Reynolds Tobacco
Company ("RJR") as the manufacturer of Camel cigarettes. Their
complaint alleges fraud and misrepresentation, products
liability, negligence, personal injury, breach of warranty,
wrongful death and loss of consortium. Federal jurisdiction is
based upon diversity of citizenship.
Presently before the Court is (1) RJR's appeal from a decision
by Magistrate Judge Gustave J. DiBianco denying RJR's request for
a protective order pertaining to particular evidence, (2)
Plaintiffs' motion to amend their complaint, (3) Plaintiffs'
motion to strike certain of Defendant's affirmative defenses, and
(3) RJR's motion for summary judgment.
I. RJR's Appeal from Magistrate Judge DiBianco's Decision
In the course of discovery, Plaintiffs' expert witness, K.
Michael Cummings, Ph. D., prepared a report in which he refers to
and quotes from a document entitled "RJR Research and Development
Activities Fact Team Memorandum — Volume III" ("R & D Memo").
Defendant objected to the use of this report and sought the
imposition of a protective order on the grounds that the R & D
Memo is subject to attorney-client and work product privileges.
Magistrate Judge DiBianco denied Defendant's motion in an order
dated October 21, 1998.
The parties disagree as to what standard of review applies on
appeal. RJR argues the Court should conduct a de novo review,
because the question of whether the privileges apply is a mixed
question of law and fact. See Def.'s Mem. of Law in Supp. of
Appeal, at 8.
Yet under Fed.R.Civ.P. 72(a), whenever a magistrate judge
determines "nondispositive matters," the district court on appeal
may set aside such a determination only if "clearly erroneous or
contrary to law." The Rule reflects the standard of review set
forth in 28 U.S.C. § 636(b)(1)(A). Section 636(b)(1)(A) also
identifies what is to be considered a "dispositive matter," such
that anything not included is classified by default as a
"nondispositive matter." Discovery disputes fall into the latter
category, and the Eastern District of New York has clearly
explained that pre-trial discovery matters "include issues of
privilege." Commodity Futures Trading Comm'n v. Standard Forex,
Inc., 882 F. Supp. 40, 42 (E.D.N.Y. 1995) (citations omitted).
Moreover, district courts within the Second Circuit consistently
have applied the "clearly erroneous or contrary to law" standard
of review when privilege determinations are appealed. See, e.g.,
Springwell Corp. v. Falcon Drilling Co., Inc., No. 96 CIV 7463,
1998 WL 352533, at *1 (S.D.N.Y. July 1, 1998) (Sotomayor, J.);
Bertolotti v. Teamsters Local 814 Pension Fund, No. 95-CV-5261,
1998 WL 12169, at *2 (E.D.N.Y. Jan. 8, 1998); New York State
Teamsters Council Prepaid Legal Servs. Plan v. Primo & Centra,
159 F.R.D. 386, 387-88 (N.D.N.Y. 1995). This Court therefore will
apply that same standard to the appeal of Magistrate Judge
An order is clearly erroneous when "the reviewing court is left
with the definite and firm conviction that a mistake has been
committed." Primo & Centra, 159 F.R.D. at 387 (internal
quotation marks omitted). An order is contrary to law "when it
fails to apply or misapplies relevant statutes, case law or rules
of procedure." Thompson v. Keane, No. 95 Civ. 2442, 1996 WL
229887, at *1 (S.D.N.Y. May 6, 1996) (internal quotation marks
omitted). Considering that magistrate judges are given broad
discretion with respect to pre-trial discovery matters, reversal
is warranted only when that discretion is abused. Abrams v.
General Elec. Co., No. 95-CV-1734, 1997 WL 458446, at *1
(N.D.N.Y. Aug. 4, 1997).
Because this Court is sitting in diversity, a question arises
as to whether the privilege issues raised in this case are
governed by federal or state law. With respect to the
attorney-client privilege, it is governed by state law. See
Fed.R.Evid. 501; Shamis v. Ambassador Factors Corp.,
34 F. Supp.2d 879, 892 (S.D.N.Y. 1999). In their letter briefs to
Magistrate Judge DiBianco, both parties acknowledged that in this
context, New York law applies.*fn1 While this distinction is not
drawn in the order on appeal, and although the magistrate judge's
opinion relies primarily on federal common law, the order is not
contrary to the law of New York. For "`New York law governing the
attorney-client privilege [N.Y.C.P.L.R. § 4503] is generally
similar to accepted federal doctrine, albeit with certain
variants.'" Shamis, 34 F. Supp.2d at 892 (quoting Bowne of New
York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N Y
With respect to the work product privilege, federal law
controls. See Bowne, 150 F.R.D. at 471. Guidance is found
primarily in Fed.R.Civ.P. 26(b)(3). See id. Since Magistrate
Judge DiBianco cited federal law cases addressing a claimed work
product privilege, this Court need only ensure that the relevant
law was appropriately applied.
C. Whether the Decision on Appeal is Clearly Erroneous or
Contrary to Law
The party seeking the protection of a privilege — in this case
RJR — must prove the privilege exists and that such privilege has
not been waived. See Shamis, 34 F. Supp.2d at 892; Bowne, 150
F.R.D. at 470-71; see also Iron Workers Local Union No. 17 Ins.
Fund v. Philip Morris, Inc., 35 F. Supp.2d 582, 590 (N.D.Ohio
1999). In his October 21, 1998 order, Magistrate Judge DiBianco
assumed arguendo that the attorney-client and work product
privileges apply. Magistrate Judge DiBianco nevertheless denied
RJR's request for a protective order, having found that RJR on
three separate occasions waived its right to assert privileges
over the R & D Memo. This Court will also presume, without
deciding, that the asserted privileges apply because in reviewing
Magistrate Judge DiBianco's order, his determination that RJR
waived its privileges is neither clearly erroneous nor contrary
1. History of the R & D Memo
The facts pertaining to the R & D Memo are largely undisputed.
Whether the R & D Memo is a privileged document was an issue in a
prior lawsuit brought in Minnesota District Court, State v.
Philip Morris. On March 7, 1998, the Minnesota District Court
ordered the production of the R & D Memo, along with thousands of
other documents, after adopting a special master's report. RJR
and the other defendants attempted to obtain interlocutory review
from the higher state courts and the United States Supreme Court,
but failed. The documents were eventually produced subject to a
protective order barring public release.
Meanwhile, the congressional House Commerce Committee issued
subpoenas on February 19, 1998 to the CEOs of the parent
corporations of RJR and other cigarette manufacturers who were
defendants in the Minnesota Philip Morris litigation. The
Committee sought to receive copies of the 39,000 documents
released in the Philip Morris case, including the R & D Memo.
The defendants asserted the same privileges being decided upon in
state court, and a letter was written to the House Committee
Chair, dated March 12, 1998, asking for a delay in deciding the
privilege issue until appellate review from the state court
decision could be exhausted. The Committee chair did so, and when
the appellate stays expired on April 6, 1998, he ruled that the
claims of privilege would not be recognized. He also informed the
parties that unless the documents were turned over immediately,
he would begin contempt proceedings. That same day, the tobacco
companies complied with his order.
Although the tobacco companies requested the materials be kept
confidential, the Committee released them onto the Internet on
April 22, 1998. RJR issued a press release when this occurred,
claiming that "[t]aken as a whole — and not selectively out of
context — these documents more than demonstrate that our company
responsibly researched, manufactures and markets its products to
adult smokers." Ex. to Def.'s Mem. of Law, Tab F.
In May 1998, State v. Philip Morris settled. Incorporated in
the consent judgment was a provision permitting the plaintiffs to
seek court approval for public disclosure of those documents that
were subject to a protective order, over which the defendants had
asserted a privilege but for which no privilege was found to
exist. The plaintiffs sought said approval, and the court
initially granted it. The defendants opposed the order, and
subsequently secured a stay of the release pending resolution of
a motion to vacate the order. The stay however, did not apply to
documents posted by Congress on the Internet, which included the
R & D Memo.
2. Whether RJR Waived Its Privileges When It Entered into the
Settlement Agreement/Consent Judgment in the Minnesota
Philip Morris Case
Magistrate Judge DiBianco found that RJR waived any privileges
when it entered into the consent judgment in Philip Morris
permitting the plaintiffs to seek public disclosure of those
documents for which a privilege was claimed but found not to
exist. Magistrate Judge DiBianco cannot be said to have
misapplied the law upon which he relied for his conclusion. See
United States v. International Bhd. of Teamsters, 961 F. Supp. 665,
673 (S.D.N.Y. 1997), aff'd 119 F.3d 210 (2d Cir. 1997)
(holding that a party waives the attorney-client privilege when
it voluntarily consents to the disclosure of any significant part
of the communication in issue); Grumman Aerospace Corp. v.
Titanium Metals Corp. of Am., 91 F.R.D. 84, 90 (E.D.N.Y. 1981)
(holding that when a party discloses an item to an adversary,
even in the context of settlement, a waiver of the work product
privilege is effected).
Furthermore, nothing in New York case law holds to the contrary
insofar as the waiver of the attorney-client privilege is
concerned. In New York, only a client may waive the privilege.
See N.Y.C.P.L.R. § 4503(a). Such waiver may be achieved by
publicly disclosing the matter in issue. See Jakobleff v.
Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835, 468 N.Y.S.2d 895
(2d Dep't 1983). Having been a party to the Minnesota Philip
Morris settlement, RJR thereby can be considered to have waived
its privilege over the R & D Memo by consenting to its public
disclosure, on the condition that the plaintiffs in that case
apply for a court order. Nor has RJR raised the argument that its
attorneys consented to the settlement agreement without RJR's
Moreover, three courts outside this Circuit*fn2 have reached
the same conclusion. They held that RJR waived its privileges
over the R & D Memo because the Philip Morris consent
judgment/settlement agreement contained no provision preserving
RJR's right to oppose the plaintiffs' application for the release
of documents. See Iron Workers Local Union No. 17 Ins. Fund, 35
F. Supp.2d at 591-94; State v. Philip Morris Inc., No.
97-CV-328, slip op. at 8-9 (Wis.Cir.Ct., Branch 11, Dane County
Oct. 21, 1998); State v. Philip Morris, No. 96122017/CL211487,
slip op. at 17-20 (Baltimore City Cir.Ct. Aug. 5, 1998).
3. Whether RJR Waived Its Privileges When It Released the R &
D Memo to the House Commerce Committee
Magistrate Judge DiBianco further found that RJR waived its
privileges when it turned over the R & D Memo to the House
Commerce Committee in response to the Committee's subpoena. RJR
contends that once the Committee Chair rejected the privilege
claims, it had no choice but to comply with the congressional
subpoena or else risk being held in contempt. Although Magistrate
Judge DiBianco acknowledged the limited choices available to RJR
once its privilege claims were ruled upon, he nevertheless
faulted RJR for failing to exhaust all avenues available for
pressing its privilege claims before the Committee Chair. See
Westinghouse Elec. Corp. v. Republic of the Philippines,
951 F.2d 1414, 1427 n. 14 (3d Cir. 1991) (noting that a subpoenaed
party will waive applicable privileges if it does not continue to
challenge the subpoena and withhold requested documents until
ordered to do so).
Magistrate Judge DiBianco relied heavily upon the recent
decision in Commonwealth v. Philip Morris, No. 95-7378-J, 1998
WL 1248003 (Mass.Sup.Ct. July 30, 1998). He agreed with that
court's observation that RJR is experienced in dealing with
congressional subpoenas. Consequently, the fact that only one
letter was written to the Committee Chair did not, in Magistrate
Judge DiBianco's mind, satisfy RJR's burden to show that it made
a concerted effort to convince the Chair to sustain its privilege
assertions — especially when the thrust of this one letter was
not to explain the basis for finding that a privilege applied,
but rather to ask for a delay in ruling on the issue of privilege
until after appellate review was exhausted in Minnesota. Without
any evidence to show that RJR pursued all available avenues
before the Chair rejected its claims of privilege, Magistrate
Judge DiBianco concluded that RJR waived those privileges.
On appeal, RJR offers no evidence that its efforts to persuade
the Committee Chair were greater than those recognized by the
magistrate judge, such that the factual basis for Magistrate
Judge DiBianco's decision cannot be characterized as clearly
erroneous. Although RJR considers it "telling" that the
magistrate judge failed to identify what other steps RJR could
have pursued short of standing in contempt, see Def.'s Br., at
14, RJR is mistaken in believing it is the Court's responsibility
to do so.*fn3 RJR carries the burden of proof to establish that
a privilege exists. As a result, RJR must show not only what
steps it took to challenge the congressional subpoena, but also
that those steps represent the fullest extent of
options available. With RJR having failed to do so, Magistrate
Judge DiBianco's order is not clearly erroneous.
Nor can the magistrate judge's decision be said to be contrary
to law. It both relies upon the legally-recognized principle that
a party must take steps to preserve claims of privilege against a
subpoena, and parallels so closely the decision by the
Massachusetts Superior Court. Furthermore, case law suggests that
mere objections to Congress' refusal to extend a privilege are
insufficient to contest a congressional subpoena. See Sanders v.
McClellan, 463 F.2d 894, 899 (D.C.Cir. 1972). Instead, a party
may need to risk standing in contempt by refusing to comply with
the subpoena, thereby causing the legislators to seek a contempt
citation and refer the citation to the Attorney General. See
id. If prosecution were to result, the party could present in
court its argument in favor of finding a privilege. See id.
Applying these principles to this case, RJR's efforts clearly
fell short. The tobacco company failed even to register an
objection with the Commerce Committee after the Chair denied its
privilege requests. Instead, RJR turned over the requested
documents on the same day the Chair's decision was issued.
As a final consideration, other courts have determined that RJR
failed to take reasonable steps to resist compliance with or
mount a challenge to the congressional subpoena, thereby waiving
any applicable privileges. See Iron Workers Local Union No. 17
Ins. Fund, 35 F. Supp.2d at 594-96; State v. R.J. Reynolds
Tobacco Co., No. CJ-96-1499, Tr. of Proceedings at 67-69
(Okla.Dist.Ct. Oct. 20, 1998).
4. Whether RJR Waived Its Privileges When It Issued Its April
22, 1998 Press Release
Last of all, Magistrate Judge DiBianco found that RJR waived
its privileges by issuing its April 22, 1998 press release at the
time Congress released the R & D memo, along with numerous other
documents, onto the Internet. In light of Plaintiffs' claims
against RJR for fraud and misrepresentation, products liability,
negligence and breach of warranty, and the fact that statements
in the press release indicate that the documents released onto
the Internet — including the R & D Memo — illustrate how RJR has
responsibly researched, manufactured and marketed its product,
Magistrate Judge DiBianco reasoned that RJR has put the R & D
Memo "at issue." As such, he held that the company could not now
claim a privilege after having used the occasion of the R & D
Memo's release to tout its own virtues.
Although courts within this Circuit have applied a fairness
test to determine whether a party has implicitly waived a
privilege, thereby causing the communication at issue to be
disclosed, that test was applied to claims asserted within the
context of litigation. See, e.g., United States v. Bilzerian,
926 F.2d 1285, 1292 (2d Cir. 1991); Worthington v. Endee, 177
F.R.D. 113, 116-17 (N.D.N.Y. 1998); Tribune Co. v.
Purcigliotti, No. 93 Civ. 7222, 1997 WL 10924, at *5, 7
(S.D.N.Y. Jan. 10, 1997), modified in part by 1998 WL 175933
(S.D.N.Y. Apr.14, 1998). Among the common characteristics of an
implied waiver is that a litigant places the protected
communication "at issue" through an affirmative act, such as
claiming an affirmative defense. See Worthington, 177 F.R.D. at
116. RJR's press release however, is an extrajudicial statement
that may be subject to "no waiver or only a narrow one." Tribune
Co., 1997 WL 10924, at *5. The Second Circuit has held that
extrajudicial disclosure of attorney-client communication does
not constitute waiver where the client does not subsequently use
that communication in a judicial proceeding. See In re von
Bulow, 828 F.2d 94, 102 (2d Cir. 1987).
5. Existence of Contrary Conclusions in Case Law
This Court acknowledges that a split exists among courts that
have addressed the precise question of whether RJR waived any
privileges applicable to the R & D Memo. See Iron Workers Local
Union No. 17 Ins. Fund, 35 F. Supp.2d 582 (waiver by entering
into consent judgment and complying with congressional subpoena);
State v. Philip Morris Inc., slip op. (no waiver by complying
with congressional subpoena or issuing press release, but waiver
by entering into consent judgment); State v. R.J. Reynolds
Tobacco Co., Tr. of Proceedings (waiver by complying with
congressional subpoena); State v. Philip Morris, slip op. (no
waiver by complying with congressional subpoena, but waiver by
entering into consent judgment and issuing press release);
Commonwealth v. Philip Morris Inc., slip op. (waiver by
complying with congressional subpoena); Reed v. Philip Morris
Inc., Civ. No. 5070-96, Tr. of Proceedings (D.C.Super.Ct. June
25, 1998) (no waiver by entering into consent judgment); State
v. American Tobacco Co., No. 96-2-15056-8, slip op.
(Wash.Super.Ct. May 1, 1998) (no waiver by complying with
Yet while authority may exist to support RJR's position, the
more critical inquiry on appeal is whether authority exists to
support Magistrate Judge DiBianco's decision. As the foregoing
analysis illustrates, this Court cannot conclude that the
magistrate judge "fail[ed] to apply or misapplie[d] relevant
statutes, case law or rules of procedure." Thompson, 1996 WL
229887, at *1. Consequently, his order is not contrary to law.
Moreover, remembering that magistrate judges are afforded much
discretion in making pre-trial discovery determinations, this
Court can find no basis for believing that Magistrate Judge
DiBianco abused his discretion such as to warrant a reversal.
Accordingly, Magistrate Judge DiBianco's October 21, 1998 Order
is affirmed, and RJR's motion for a protective order is denied.
II. Plaintiffs' Motion to Amend the Complaint
On October 27, 1998 — after this lawsuit was initiated — the
New York Supreme Court, Appellate Division, issued a decision
explaining that allegations of fraud must include examples of
misrepresentation upon which a cigarette user relied. See Small
v. Lorillard Tobacco Co., Inc., 252 A.D.2d 1, 15, 679 N.Y.S.2d 593
(1st Dep't 1998), aff'd 94 N.Y.2d 43, 698 N.Y.S.2d 615,
720 N.E.2d 892 (1999). Plaintiffs wish to amend their complaint to
reference particular advertisements and pronouncements issued by
RJR, upon which they claim Mr. Tompkins reasonably relied.
Fed.R.Civ.P. 15(a) provides that leave to amend a complaint
"shall be freely given when justice so requires." Yet leave may
be denied where permitting the amendment would be futile. See
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962); Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,
106 F.3d 11, 18 (2d Cir. 1997).
If the proposed amended pleadings cannot survive RJR's motion
for summary judgment on the merits, it serves little purpose to
allow the amendments to be made. The Court's analysis (infra)
of the sufficiency of the evidence pertaining to Plaintiffs fraud
claim concludes that even with evidence of specific
advertisements, Plaintiffs cannot survive summary judgment.
As such, Plaintiffs' motion to amend is denied.*fn4
III. Plaintiffs' Motion to Strike Certain Affirmative Defenses
Plaintiffs move pursuant to Fed. R.Civ.P. 12(f) to strike a
myriad of affirmative defenses asserted by RJR in its answer.
This Court has stated that "[c]ourts generally disfavor Rule
12(f) motions and do not routinely grant them." State of New
York v. Almy Bros., Inc., 971 F. Supp. 69, 72 (N.D.N.Y. 1997)
(McCurn, J.). Where a plaintiff moves to strike affirmative
defenses, the defendant's pleadings are to be construed liberally
so as to give the defendant a full opportunity to support its
claims after discovery has been made. See id. A motion to
strike should be granted only where (1) it appears to a certainty
that the plaintiff will succeed regardless of what facts could be
proved in support of the defense; (2) the affirmative defense
sought to be struck does not present disputed and substantial
questions of law that could be resolved in such a way as to
support the defense; and (3) the plaintiff shows it will be
prejudiced by inclusion of the affirmative defense. See id.
RJR contends that Plaintiffs' motion should be dismissed as
untimely, since Fed.R.Civ.P. 12(f) provides that a motion to
strike should be brought "within 20 days after the service of the
pleading upon the party." A motion to strike was dismissed for
this reason in Harley-Davidson, Inc. v. Estate of O'Connell,
13 F. Supp.2d 271, 278 (N.D.N.Y. 1998).
On the other hand, courts within the Second Circuit have ruled
on the merits of a motion to strike brought after the expiration
of the 20-day window, based upon the language in Rule 12(f)
giving judges discretion to strike material from a pleading on
their own initiative. See, e.g., Wine Markets Int'l, Inc. v.
Bass, 177 F.R.D. 128, 132-33 (E.D.N.Y. 1998) ("In effect, the