The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge.
Defendants proffer the factual findings of a judge of the Quebec
Superior Court to impeach one of plaintiffs experts. In a non-jury trial
raising factual issues similar to the instant one the judge denigrated
the conclusions of the expert. Plaintiffs motion to exclude is granted.
The evidence is inappropriate.
The allegations — fraud of defendants in denying smoking caused
disease, leading to increased costs to the plaintiff — have already
been described See e.g., Blue Cross v. Phillip Morris, 113 F. Supp.2d 345
(E.D.N.Y. 2000); see also Simon v. Philip Morris, 124 F. Supp.2d 46
(E.D.N.Y. 2000) (collecting related opinions).
A full evidentiary hearing established to the court's satisfaction that
the expert's proposed testimony was sufficiently reliable to be admitted
under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrel Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Blue Cross v. Phillip
Morris, No 98 CV 3287, 2000 WL 1738338 (E.D.N.Y. Nov. 1, 2000); see also
Falise v. American Tobacco Co., 107 F. Supp.2d 200 (E.D.N.Y. 2000)
(setting forth criteria for admitting expert testimony).
The expert has impressive credentials. He is a professor of economics
at a leading university and has been a primary care physician of a major
hospital for 23 years. Report at 1, Nov. 19, 1999. His education is
consistent with his responsibilities. He has served on invited panels for
the National Academy of Sciences and on the Council for the National
Institute of Health and has been a consultant to a number of federal and
state agencies in connection with the health consequences of smoking.
Id. at 3. He has published more than seventy peer reviewed papers, many
of which deal with tobacco issues. Id. at 47-56. Since 1979 the expert
has been a scientific editor contributing to several Surgeon General
Reports on tobacco. Within the past three years he has testified or
provided advice in a number of different cases brought by states attorneys
general and private entities against the tobacco industry. Id. at 2.
Defendants intend to use the opinion of the judge in RJR-MacDonald.
Inc. v. Canada (Attorney General), 82 D.L.R. (4th) 449, 513-514 to
impeach the expert. The judge rejected the expert's models using strong
language. He wrote:
In an attempt to establish a correlation between advertising bans and
consumption the [plaintiff] called [the expert] as a witness. It should
be pointed out that he was retained.., as an expert for the purposes of
this trial. This witness struck the court as extremely intelligent and
very skilled in the manipulation of ideas and statistics.
Unfortunately, he did not demonstrate the scientific objectivity that
the court is entitled to expect from an expert witness of his stature.
He often evaded troublesome questions in giving evidence; it was often
only on close and rigorous cross-examination by counsel for applicants
that complete answers were obtained and, frequently, his answers were
self-justifications. This is all the more deplorable given that he was
dealing with regression analysis, which is a complex subject....
Precise methodology, accurate data and the assurance of scientific
rigour are essential in these matters where a simple error in the
data, the methodology or the calculation affects all the results. In
this instance, the court is of the opinion that the input data used by
[the expert] were unreliable and that his methodology led necessarily
to the desired result. Here again, the court entirely agrees with the
analysis of reports and testimony of [the expert] made by [defendant's]
counsel in his argument.., and accords no probative value to those
reports or that testimony.