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FALISE v. AMERICAN TOBACCO COMPANY
July 28, 2000
ROBERT A. FALISE; LOUIS KLEIN, JR.; FRANK MACCHIAROLA; AND CHRISTIAN E. MARKETY, JR. AS TRUSTEES, PLAINTIFFS
THE AMERICAN TOBACCO COMPANY; R. J. REYNOLDS TOBACCO COMPANY; B.A.T. INDUSTRIES, PLC; BROWN & WILLIAMSON TOBACCO CORPORATION; PHILIP MORRIS INCORPORATED; LIGGETT GROUP, INC.; AND LORILLARD TOBACCO COMPANY, DEFENDANTS.
The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge:
Amended Preliminary MEMORANDUM & ORDER
Continuing the court's decisions on in limine motions reflected
in orders dated July 18, 19, and 25, the parties' first Daubert
motions are now addressed:
Expert Witnesses Challenged
There have been a number of challenges to the testimony of the
following experts proposed as witnesses in the forthcoming trial:
1. Dr. Jeffrey Harris will appear for plaintiffs to
testify on the relationship between Tobacco
conduct and Trust claimant smoking patterns,
disease causation and resulting injury to
claimants. Dr. Harris's proposed model purports
to demonstrate that those exposed to asbestos
would have quit smoking earlier if they had
not been mislead by Tobacco's fraud, thus
leading to less serious diseases to be
compensated by the Trust.
2. Dr. Thomas Florence is proffered by plaintiffs
to forecast future claims. He has been unable
to appear at a required evidentiary hearing.
The Daubert hearing on this witness is postponed.
The parties will arrange promptly with the case
coordinator, Ms. June Lowe, for an evidentiary
Daubert hearing or submit the issue on papers.
3. Professor Jon D. Hanson is a proposed witness
for plaintiffs to discuss the impact of Tobacco
conduct, particularly advertising, on smoking
patterns and consumer behavior. A prima facie
demonstration of compliance with Rule 702 of
the Federal Rules of Evidence has been
established by copies of his articles
now on file. If the parties wish an evidentiary
Daubert hearing on this witness they should
arrange for one promptly with the case
4. Professor Peter Schuck's testimony was offered
by defendants on the following: the impact of
Trust settlement policies and practices; the
Trust's inability to demonstrate that any of the
dollars paid by the Trust historically were due
to conduct of the Tobacco industry; and the
impact of mass tort dynamics on Trust settlement
decisions, negotiation of the Trust Distribution
Process agreement (TDP) and dollars ultimately
5. Dr. Frederick Dunbar is to appear for defendants
to rebut Dr. Harris's testimony by arguing that
Trust cost-benefit calculations in settling
claims, not decisions anchored in tort law,
explain Trust payments. He has also provided a
model demonstrating that even had the Tobacco
industry not mislead Trust claimants, the
amounts payable by the Trust would have been the
6. Professor Karen Gross has offered to testify for
defendants on the impact of Johns-Manville's
plan of reorganization, and on policies adopted
by the Trust for settlement of asbestos claims
and dollars paid by the Trust over time.
7. Professor William O'Connell's testimony is
proposed by defendants on the Trust's operation
and its impact on dollars expended.
Each of these experts is highly qualified in his or her field.
For the reasons stated orally on the record, the testimony of
the following appear to be unnecessary and are excluded pursuant
to the court's general authority to control the trial and on the
assumption that the documents they would have relied on can be
utilized in arguments by counsel: Professor Peter Schuck,
Professor Karen Gross, and Professor William O'Connell. No
Daubert decisions as to these three experts ...
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