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IN RE SIMON II LITIGATION

United States District Court, Eastern District of New York


November 7, 2001

IN RE SIMON II LITIGATION

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

ORDER

Motions to consolidate a compensatory class and a mandatory punitive damage class in the tobacco litigation were heard in April 2001. At subsequent status conferences the court has repeatedly suggested that counsel advance test cases to permit the court to assess the value of class certification.

With the exception of two trials, Falise v. Am. Tobacco Co, No. 99 CV 7392 (filed 11/12/99) and Blue Cross & Blue Shield of N.J. v. Philip Morris Inc., No. 98 CV 03287 (filed 4/29/98), these matters have not proceeded expeditiously.

While these are expensive cases to prosecute, they must be tried relatively promptly. Unless there is good reason for delay, class members are entitled to a speedy resolution of their claims under the Federal Rules of Civil Procedure and the basic rules of ethics. The following represents the Court's tentative views about how these still pending actions should proceed in the short run:

A. Asbestos Industry Related Cases

There is only one plaintiff, Raymark v. Am. Tobacco Co., No. 1998 CV 0675 (filed 01/30/98), in the subclass of asbestos industry related cases with a pending action in this court. A pretrial hearing will be held on December 11, 2001 at 10:00 am to set a trial schedule.

B. Blue Cross & Blue Shield of N.J.

An appeal will be pending in this case. It seems appropriate to await this decision before proceeding further with remaining Blue Cross cases. Upon a decision favorable to them, plaintiffs shall be prepared to proceed expeditiously, either individually, on a consolidated basis, or as a subclass of the larger Simon litigation.

C. Union Health Fund Cases

The union health fund actions now pending in this court (i.e. Bergeron v. Philip Morris Inc., 99 CV 06142 (filed 9/29/99) and National Asbestos Workers v. Philip Morris Incorporated, 98 CV 01492 (filed 2/27/98)) are in somewhat the same position as Blue Cross & Blue Shield of N.J. v. Philip Morris Inc. They too rely on questions of substantive and procedural law which will be on appeal in Blue Cross & Blue Shield of N.J. v. Philip Morris Inc. Their trials will await the decision on appeal. Counsel should be prepared to promptly proceed to trial if a trial is necessary.

D. Betriebskrankenkasse

This case presents many similar factual and legal questions to be raised on appeal in Blue Cross & Blue Shield of N.J. v. Philip Morris Inc. This trial will await decisions on the appeal. Counsel should be prepared to proceed promptly to trial if a trial is necessary.

E. Individual Plaintiff Cases

Simon plaintiffs' counsel shall select a suitable number of class members for trial to determine the viability for class certification. A pretrial hearing is set for December 11, 2001.

F. Mason Case

Plaintiffs proceeding in the Mason case will be heard on a motion for class certification on April 4, 2002. At that time, the court will consider an immediate trial of severable issues.

SO ORDERED

20011107

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