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.
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
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
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.
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.
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