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BLUE CROSS AND BLUE SHIELD v. PHILIP MORRIS.

April 25, 2001

BLUE CROSS AND BLUE SHIELD OF NEW JERSEY, INC., ET AL., PLAINTIFFS,
v.
PHILIP MORRIS INCORPORATED, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge.

Memorandum & Order

I. Introduction

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.

II. Facts

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).

The expert will present models designed to quantify the portion of smoking-related health care costs attributable to defendants. He uses a "counterfactual world" to calculate a "conduct attributable fraction" representing the portion of medical costs due to smoking related illnesses resulting from defendant's alleged fraud. A "smoking attributable fraction" and costs calculated by other experts are used to compute damages.

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.

Id. at 513-514.

Defendants claim that the evidence is admissible to impeach the credibility of the expert. They point out that an expert witness's testimony calls for latitude in impeachment because his or her professional stature may influence the jury's assessment of credibility. They also argue that because witnesses like this one testify in many cases their peers are the courts as much as those in the scientific community. Other court fact-findings are thus admissible, they contend, to impeach the expert, in ...


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