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89.7317 A['6 4 ~9 IN TFI~ (go rt of FOR THE SECOND CIRCUIT ~N THE MATTER OF THE APPLICATION OP THE AMERICAN TOBACCO COMPANY, R.J, I~'gNOLDS TOBACCO COM- PANY, and PHILIP MORRIS, INC., Appellees, MOUNT SINAI SCHOOL OF MEDICINE and THE AMERICAN CANCER SOCIETY, Appellants. ON AppEAL FROM THE UNITED STATES DISTklCT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK No. M~-8~ PETITION FOR REHEARING WITH A SUGGESTION FOR REHEARING EN BANC PROSKAUER ROSE GOETZ & MENDELSOHN Attorneys for Petitioners-Appellanls Mount Sinai School of Medicine and The Americun Cancer Society 300 park Avenue New York, New York 10022 (212) 909-7000 Of Counsel: ~4V~ICI-D~EL A. CARDOZO C!-!ARLES S. SIMS SALIANN SCARPULLA

T ELE OF NTENT TABLE OF AUTHORITIES ................... i PRELIMINARy STATEMENT .................. 1 POINT I: THE pANEL IMPROPERLY REFUSED TO QUASH THE SUBPOENAS UNDER RES JUDICATA . POINT II: THE PANEL DISREGARDED TEE POLICIES UNDERLYING NEW YORK'S ABSOLUTE EXPERTS' PRIVILEGE AND THE NEED, IF THERE WAS DOUBT ABOUT THE PRIVILEGE'S EXTENT, TO CERTIFY THE ISSUE TO THE NEW YORK COURT OF APPEALS ...... , ..... POINT III: THE PANEL'S QUALIFIED PRIVILEGE RULING WAS IN ERROR .............. POINT IV: THE PANEL ERRED IN APPROVING A PROTECTIVE ORDER THAT FAILS TO ENSURE AGAINST THE EXPOSURE OF pARTICIPANTS' IDENTITIES TO EMPLOYERS AND OTHERS .... . ..... 13 CONCLUSION ...................... 15

TABLE OF AUTHORITIES Alemite Mf~. CorD. V. Staff, 42 P.2d 832 (2d Cir. 1930) . . 14 Baker v. F&F Inv't, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 968 (1973) ................ 12 Cunninuham and Kaminu, P.C.v. Nadiari, 53 A.D.2d 520 (ist Dep't 1976) (mem.) .................. 5 Deitchman v. E.R. squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1982) ...................... 12 Parnsworth v. Procter & Gamble Co., i01 Y.R.D. 355 (N.D. Ga. 1984), aff'd, 758 F.2d 1545 (llth Cir. 1985). . . 12 Gilly v. City of New York, 69 N.Y.2d 509 (1987) ...... 7 Gowan v. Tully. 45 N.Y.2d 32 (1978) ............ 5 Gray v. Board of HiGher Educ. of New York. 692 F.2d 901 (2d Cir. 1982) ..................... i0 In re American Tobacco Co., NO. 1317, Slip op. 4623 (2d Cir. July 21, 1989) ................ passim In re Pennzoil Co.. 108 A.D.2d 666 (ist Dep't 1985) ........................... 12 In re R.J. Revnolds Tobacco Co°r 136 Misc. 2d 282 (Sup. Ct. N°Y. Co. 1987) .................. 3 Kidney v. Kolmar Laboratories. Inc., 808 F.2d 955 (2d Cir. 1987) ................. ...... 8 O'Brien v. City of Syracuse, 54 N.Y.2d 353 (1981) ..... 4 O'Neill v. Oakurove Constr. Inc., 71 N.Y.2d 521 (1988) Plummer v. R.H. Macv & CO., 69 A.D.2d 765 (Ist Dep't 1979) ............................ 7 Salin~er v~ Random House. Inc., 811 F.2d 90 (2d Cir.), cert. deniedg 108 S.Ct. 213 (1987) ............. 15 Silkwood v~ Kerr-McGee CORD.. 563 F.2d 433 (18th Cir. 1977) ...................... 9 United States v. Burke, 700 F.2d 70 (2d Cir.), cer~t, denied, 464 U.S. 816 (1983) ............. 12 i

winters v. Lavine, 574 F.2d 46 STATUTES 28 U.S.C. §1738 ......... (2d Cir. 1978). 5 ii

UNITED STATES COURT OF A~PEALS FOR TH~ SECOND CIRCUIT In the Matter of the Application of The A/serican Tobacco Company, R~J. Reynolds Tobacco Company, and Philip Morris, Inc., Appellees, Mount Sinai School of Medicine and the American Cancer Society, Appellants. Docket NO. 89-7317 PETITION FOR REHEARING WITH A SUCGESTION FOR REHEARING EN BANC PRELIMINARY STATEMENT This case presents the question whether biomedical researchers must produce, in product liability actions to which they are total strangers, their unpublished and in substantial part unreported-on confidential data involving the medical histories of thousands of participants in long-term prospective health and mortality studies. In affirming Judge Duffey's order requiring production of a computer tape from which participants' identities can be derived, without safeguards restricting its use to the underlying litigation or precluding its dissemination to the world at large, the panel erred, we respectfully suggest, in four separate respects: By refusing to quash the subpoenas under res ~, even though state court subpoenas seeking precisely the same computer tape had previously been quashed by the 1

state courts after extensive litigation upon consideration of the same issues presented here; By disregarding the policies underlying New York's absolute experts' privilege which squarely applies here, and declining to certify what at least is an unsettled but clearly dispositive and important issue to the New York Court of Appeals; By affirming the district court's decision on the improper ground that it was not an abuse of discretion with respect to the application of the qualified privilege, when the district court expressly held that there was n~ such privilege and refused to consider the interests in avoiding harm to confidentiality and biomedical research whose weighing the privilege requires; and By affirming enforcement of the subpoenas even though release of the data will allow the employers of the research participants both to identify them and to provide the data to persons unrelated to the underlying litigations. Appellants Mount Sinai School of Medicine and The American Cancer Society ("Mount Sinai") respectfully petition, pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure, for a rehearing of the opinion of this Court dated July 21, 1989. In light of the exceptional importance of this case to the vital enterprise of biomedical research and the research institutions at which it is conducted, appellants respectfully suggest that this is an

appropriate matter to be considered by the entire Court of Appeals. This is a proceeding to quash the latest ten of a string of more than 30 third party subpoenas, served by defen- dants in distant product liability actions, seeking computer tapes containing biomedical research data conducted by Dr. Irving Selikoff. The research data at issue, which concerns more than 18,000 persons,1 relates to the relationship between asbestos exposure, cigarette smoking, and cancer. Mount Sinai and its researcher, Dr. Selikoff, are not parties to, and will not be witnesses at, the underlying litigations. Subpoenas seeking that same computer tape, and secondarily the files from which the computerized data was drawn, were previously issued by the New York Supreme Court, and quashed after extensive litigation, on the ground that they were subject to a qualified privilege. The state court expressly held that quite apart from the other information secondarily sought in the state court subpoenas, the minimal need for the computer tape was outweighed by the burdens on scholarship and on the continued vitality of the research enterprise. In re R.J. Reynolds Tobacco Co.. 176 Misc. 2d 282 (Sup. Ct. N.Y. Co. 1987). 1 3,500 (not 500 as the panel decision states, In Re American Tobacco Co., No. 1317, Slip op. 4623, 4626 (2d cir. July 21, 1989)) of those persons were physically examined by the Mount Sinai researcher (A209, 213, 945- 46, 950). 3

The tobacco companies strategically declined to perfect their state court appeals and instead issued new subpoenas for the pending federal cases in which they were defendants. These new subpoenas seek the same computer tape which had been their principal goal in the state court, hut this time they deleted the request for certain additional data previously sought. Mount Sinai's motion to quash before Judge Dully was denied. The District Court also largely rejected Mount Sinai's motian for a protective order, refusing to permit redaction or collapsing of identifying information (including union local and dates of birth and death) that the district court recognized would permit identification of research subjects. ~OINT I THE PANEL IMPROPERLY REFUSED TO QUASH ~ SUBPOENAS UNDER RES JUDICATA The panel's decision misapplies New York's re s iudicata law and exposes both scholarly researchers and state and federal courts to wasteful, unnecessary, and unjust relitigation. Under New York law, which the panel conceded is appli- cable, claims "arising out of the same transaction or series of transactions are barred, even if based on different theor- ies or seeking a ~ ~ " O'Brien v. City of S ra~, 54 N.Y.2d 353, 357 (1981) (emphasis added). The panel nonetheless held that even though the tobacco companies' 4

state court subpoenas for the computer tape (for use in fung- ible litigation against asbestos and tobacco companies) had previously been quashed, see Re n~, 136 Misc.2d at 282, the state court's resolution of Mount Sinai's privilege claims was not re s judicata. The panel held that New York law does not give preclusive effect to such decisions when a second subpoena is "clearly narrower or more specific." Slip op. at 4637. The only authority cited for that proposition, Cunnin~ham and Kaminq, P.C.v. Nadjari , 53 A.D.2d 520 (ist Dep't 1976) (mem.), has no application to re s "u~icata. There is no New York state case that provides any basis for concluding, as the panel did, that a fully litigated decision quashing a subpoena for a computer tape with i0 fields of data on 18,000 persons would not preclude subsequent subpoenas in identical cases seeking the sa~e information on only i0,000 persons, or subpoenas seeking nine fields of that data on the same 18,000 persons. The panel's decision also ignores the strong policies, previously emphasized by both this Court and the New York courts, precluding relitigation which "would destroy a right adjudicated [previously] .... " Gowan v. Tully, 45 N.Y.2d 32, 36 (1978); ~ Winters v. Lavine, 574 F.2d 46, 56 (2d Cir. 1978). Here, Mount Sinai's right to maintain the tapes in confidence, adjudicated by the state court, has been

destroyed by the decisions of the district court and the panel. In the state court Reynolds represented to Justice Danzig that "[t3he data we basically need is, . . . contained on the computer tapes, not the 97 file cabinets of documents .... ,, (AI04). By affirming an order directing production of the very material the state court declined to order produced, the panel's decision severely damages the policies of finality, comity and fundamental fairness that underlie rest. In product liability and mass toxic tort contexts, where numerous cases are frequently brought in both state and federal courts, the decision guarantees successive opportunities in both forums for defendants to litigate claims for third party experts' materials, so long as the requests submitted in each successive forum are marginally narrower than those which they had previously lost. The panel advanced no policy to support that result, and its wasteful and unfair rule ensures that even a total victory in hard fought and expensive litigation will be only temporary. Where, as here, the parties and the court in a first litigation specifically address precisely the data sought in the second, relitigation of these claims is irreconcilable with the policies underlying 28 U.S.C. §1738 and New York's law of res iudicata.