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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
V.
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 coordinator.
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 paid.
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 same.
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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