Tobacco Documents Online

1 2 3 4 5 6 7 8 9 10 1! ~2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 UNTTED STATES COU~T OF APPEALS FOR TEE SECOND CIRCUIT No. 1317 AugUst Term, IS88 (Argued: June 6, 1989 Decided: ~ ~ 1%9~ ) 89-7317 Docket No. In the Matter of the Application of THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, and PHILIP MORRIS, INC., MOUNT SINAI SCHOOL OF MEDICINE and THE AMERICAN CANCER SOCIETY, THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, and PHILIP MOP~RIS, INC., Before: LUMBARD, FEINBERG, and KEARSE, circui~ J~dqes. Appeal from an order of the United states District Court for the Southern District of New York, Kevin Thomas Duffy~ ~, I holding appellants in civil contempt for refusing to comply with subpoenas. Affiz~med. MICHAEL A. CARDOZO, New York, New York (Charles S. Sims, Proskauer Rose Goetz & Mendelsohn, New York, New York, ~Om the brief),

9 1(] 11 12 13 ,4 15 16 18 19 2O 21 22 23 24 25 " I DONALD I. STRAUBER, New York, New York 2 (Thomas E. Riley, Garyowen p, Morrisroe, Chadbourne & Parke, 3 Howard G. Kristol, Bru/ce H. Lederma~, Rebo~l, MacMurray, 4 Hewitt, Maynard & Kristol, David R. Davies, Hunton & Williams, New York, New York, on the brief), for 6 KEARSE, Circuit Judae: Mount sinai School of Medicine ("Mount Sinai") and The 8 American Cancer Society ("ACS") appeal from a final order of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Ju~d e, holding them in civil contempt for failing to comply with orders of the court requiring them to respond to subpoenas served by appellees The American Tobacco Company ("American"), R.J. Reynolds Tobacco Company ("Reynolds"),-- and Philip Morris, Inc. ("Philip MOrris") (collectively the "tobacco companies"), requesting research data for use in lawsuits to which Mount Sinai nnd ACS are not parties. On appeal, Mount Sinai and ACS challenge interlocutory orders that (i) denied their.- motion to qu~sh th~ subpoenas on grounds of res judic~ta, collateral estoppel, and privilege, and (2) denied in part their motion for a protective order permitting redaction of the ..... subpoenaed materials to prevent identification of person~ who were subjects of the research. For the reasons helow~ we uphold the orders of the district court.

! 2 3 4 5 6 7 8 g 10 11 T2 13 14 ;5 ~6 1;' 18 lg 20 21 22 23 24 25 26 I. BACKGROUND Each o£ the tobacco Companies is a defendant in one or more ,roduct liability suits pending in state or federal courts around i the cotuntry (the "underlying suits"), in which the plalntiffs allege that their decedents died of lung cancer caused by a ~combination of cigarette smoking and exposure to asbestos. Mount Sinai and ACS are not parties to those suits, and neither they nor i members of their medical staffs are expected to be called as witnesses. The tobacco companies expect, howevere that the i plaintiffs will rely on expert testimony that in turn will rely on seminal studies made by certain members of the medical staffs of Mount Sinai and ACS. The tobacco companies seek to subpoena the data underlying these studies. A. The Selikoff Studies a~d Past Subpoenas Dr. Irving J. Selikoff, a professor of medicine at MounC sinai, is the principal author of, ~, two articles whose medical conclusions support ~he plaintiffs' claims in the underlying suits. .See Mam/~ond, Selikoff & Seidman~ be~ ExPosure. Ciuarette Smoking and Death Rates. 330 Annals N.~. Acad. Sci. 473 (1979); Sellkoff, Seidman & Hammond," Mo al't E cts of Ciuarette Smokin~ Among Amoslt~ Asbestos Factory WorKers, 65 J. " Nat'l Cancer Inst. 507 (1980). Earlier studies had shown that cigarette smoking Bay cause cancer and that exposure to asbestos ~L~ may also cause cancer. The Selikoff articles suggested that when i - 3 -

3 4 6i 6 7; 8 9 I0 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 ~igarette smoking wam Combined with occupational exposure to asbestos, the risks of developing cancer increased geometrically rather t~an arithmetically. The au~ors concluded that these data suggested a synergistic relationship between the hazards of smokin¢ and of exposure to asbestos. FOE the 1979 artiGle, the period of study ran from 1967 through 1976; for the 1980 article, the period of study ran from 1961 through 1977. Some ll,OOO asbestos workers were s~bjects of the research reported in these two articles. Using a wide range of sources, Dr. Seliko£f accumulatea a variety of personal data on his subjects. Some informatio, was received through the personal examination of approximately 500 subjects who were treated by Dr." Selikoff in connection ~ith research for the two azticles. Along with basic identifying details such as names, places of residence, and union affiliations, the assembled information included such items as dates of birth, dates add causes of death, periods of exposure to asbestos, smoking habits, evidence of cancer, and other relevant medical history. Dr. Selikoff assured his research subjects that the inforl%ation they provided would remain confidential~-- ........................ Muoh of the raw data was eventually recorded on ~omputem tapes to facilitate statistical analysis and convenient storage. The selikoff research continued after the publicatlon of the 1979 and 1980 articles, and the computer tapes were updated frequently with new information. - 4 -

~/t ] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 / In 1986, Reynolds served Mount Sinai and ACS wig subpoenas issued by a state court in New York in connectiom with an action pending i~ state cour~ in california, see Pace v. Lincoln Electric ~, No. 257048 (Cal. Super. Ct.] (the -page subpoenas"}. The Page s~bpoenas sought all the data underlying the 1979 and 1980 Selikoff articles, as well as data underlying a 1968 article. Each subpoena provided, in pertinent part, as follows: • Documents To Be Produced 1. This subpoena covers documentation, data collections, or data bases (the !'raw data"] that formed the basis for the [1968, 1979, and 1980 articles]; 2. Documents which describe, constitute, comment upon, criticize, review or concern th~ research design, methodology, sampling protocol, and/or conduct of any of the studies; 3. Copies of the ~aestionnaires, answers to questionnaires, interview forms, responses to imterviews, death certificates, autopsy reports, and other cause of death data .... ; 4. Data sheets~ computer tapes and/or copies of computer d!sc~containi~g~ll=~_coded data .. ; • • o . 6. This reauest is intended to cov@r all availabie data u~ed, in as "raw" a form as Dossibl~ .... (E~phasis added~) ............................. Mount Sinai and ACS moved to quash the Page subpoe~nas in New York state court. That Court, after discussing both the interests of scholars with respect to their research and the burdens of producing the data Galled for by %he Page subpoenas, granted the motions to quash. In re R.J. Reynolds Tobacco Co., 136 = . -- 9 --

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 /- 17 19 2~ 21 22 23 24 26 Misc. 2d 282, 518 N.Y.S.2d 729 (Sup. Ct. 1987) (~"). The court stated, in pertinent part, as follows: Reynolds' subpoenae o . . are not selective. Rather, they are sweeping and indiscriminate.• A subpoena may be challenged on the grounds that; it is ov@rbroad, burdensome or oppressive .... A subpeena may be vacated ~or reasons of privilege, whether statutory or constitutional, or having its genesis under common law. . . . CPLR 3101 provides that "[t]here shall be a full disclosure of all evidence . . .", which means all relevant inf~r~ation calculated to lead to relevant evidence .... The data requested must he material and necessary although it need not be indispensable .... The rules of evidence may be considered when determining necessity of the requested ~terial. But inadmissibility by itself may not be a reason for denying access to the information, since such information may lead to evidence. In addition, its use in cross-examination can be a Gonsideration° . ?-; [T]he fact that the information is available .... from other sources or even that Reynolds has or could have obtained the material needed at trial is not reason alone for denying the production of the data. Material subpoenaed may be used for corroborative purposes. However, when compliance with subpoenae would be so oppresslve as to h~inderthe~ormif'func£1oning of a Department of the medical school and/or of the American Cancer Society for a prolonged period of time, the CoUrt on motion or on its own initiative may provide appropriate relief• This is especially so because Mt. Sinai and the American Cancer Society ~re complete strangers to the .... underlying litigation. Neither Dr. Selikcff nor his co- authors will be witnesses at the Page trial. The9 are not consultants in that matter, nor was decedent Page a subject of their medical investigation. Policy in New York, unlike most• other jurisdictions has accorded privilege to experts. . .. The united states Supreme Court held in the notable case of Bran bur v. a~[ay_~, 408 U.S. 665, 688 [(IS72),] "that 'the pt~blic . . . has a right to every man's evidence,' except foe those - 6 -

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 • 21 22 23 24 25 26 persons protected by • constitutional, ¢O~L~ON law or statutory privilege.- . . . If the productid~ of the material would become oppressive and unreasonably burdensome, the court, in balancing the hardships, should con~ider whether there are other sources for obtaining the material needed to disprove t2~e conclusions reached by the three studies. In addition, the probative value of the material, if produced, should-be considered. Dr. Selikoff determined by a sample test that it would take thousands of hours to redact all the material which is of a confidential nature. The time required would he the same whether the information is in raw data form or on computer tape. Reynolds has offered to reimburse Mt~ Sinai and the A~erican Cancer Society for the reasonable expenses incurred in their complying with the subpoenae. However, it appears that Dr. Selikoff and his colleagues would still have to spend over a thousand hours of time removing the data ~dentifying the individuals who participated in the --- study. The loss of the scientists' time in complying with the subpoen~e ~ouid be a~ unreasonable burden and would unduly interl~/pt their ongoing medical investigations. It is also clear that the medical material requested is not of an archival nature but rather is in constant use _as~paEt_Qf~ongoing~medical-research. Mount Sinai and the American Cancer Society protest, on behalf of their medical scientists, the interference with their ongoing scientific research in this area. While these medical investigations are still in progress, they -- should not be subjected to examination and criticism by people whose interests are arguably antithetical tm the medical scientists. It would have the effect of denying to these doctors the opportunity of first publication of their st~Idies. It could also have a Chilling effect and ~= discourage future scientific endeavors. Mount Sinai, the American Cancer Society, the Dean a~ the Yale University School of Medicine, and ot~er eminent medical scholars claim that forced compliance with the ......... suhpoanae would result in an interferenc~ with their academic freedom• It was stated in ow Chemical CO. v. A~/~t 7th Cir., 672 F.2d 1262e 1275 [1982] that ,'whatever

S 2 3 4 5 6 / 7 8 9 10 11 12 131 I¢i 15! constitutional protection is afforded by the First Amendment extends as ~eadily to the scholar i~ the laboratory as to the teacher in the classroom." Of course, like all other constitutional rights, academic Ereedom is not absolute and must be balanced against competing interests .... For present purposes, xespondentlm interest in academic freedom may properly flg~re into the legal calculation of whether forced disclomure would be reasonable. For the reasons stated above, the court finds that compliance with the subpoenae would place an unreasonable burden upon the medical and scientific institutions involved and would unduly disrupt the ongoing research at both Mount Sinai and the A~nerican cancer Society. Accordingly, the motion to quash the subpoenae is granted. ~. at 284-88, 518 N.Y.S.Zd at 731-34. not appeal. The tobacc~ companies did B. The Present Subpoenas and the Decision ~elow Shortly after the decision in ~, the tobacco companies served on Mount Sinai and ACS the subpoenas at issue 16 ........ here~in connection with actions pending in federal court in 17 Louisiana and Pennsylvania. ~ LeJeune v. Ar~stronu World Indus.~ 18 NO. 86--0421 (W.D. La.); Shires v. The Celotex Corp., No. 85-7141 19 ":C (E.D. Pa.). In these new subpoenasF the tobacco companies seek 20 fewer items than were sought in the Page subpoenas, concentrating 27 primarily on the computer tapes storing the rsle~ant =a*~ data. To" 22 the extent relevant here, these suhpoenas pravlde as follows: 23 Docu~eDts TO Be Pr0duged 24 i. The computer tape(s) for the 1979 study ...... 25 ....... containing all information gathered, or that relates to matterm occurring, prior to January I, 1977. 28 = -- 8 --

I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ]7 18 19 20 21 22 23 24 • 25 26 f 2. The computer tape(s) for the 1980 study containing all information gathered, or that relates to matters occurrings prior to January i, 1978. 3. The supporting dac~mentation for the 1979 and 1980 studies. The subpoenas define "supporting documentation" as comprising computer code hooks for the 1979 and 1980 studies; related documentation that would assist in identifying what information is on the computer tapes for the 1979 and 1980 studies and where it is located on the tapes; a blank copy of the coding forms used in transferring information onto the computer tapes for the 1979 and 1980 studies; a blank copy of each type of questionnaire used to gather information for the 1979 and 1980 studies; a copy of the protocol documents for the 1979 and 1980 studies and any addenda thereto; and documents showing the calculations and the analytical methods and assumptions used in developing the information with respect to the 1979 and 1980 studies The subpoenas also make the following provision for confidentiality: Where necessary to protect the anonymity of the study participants, identifying information (such as names and street addresses) may be redacted .... Mount~S~l~ahdACS M0v6d--En--£he~dZstrfCt~urt--toquash-- the subpoenas on the grounds that (i) in light of ~, the subpoenas were barred by res. judicata and collateral estoppel; (2) under New York law, the data sought by the tobacco companies was subject to the absolute privilege afforded experts; and (3) even if they had no absolute privilege, the researchers enjoyed a qualified privilege and the tobacco companies had not'shown that their interests outweighed the interests of researchers. In the alternative, Mount Sinai and ACS moved for a protective order allowing (a) redaction of all identifying fnformation-o~ the computer tapes, (b) a summary by decade of all specific dates, .... J .....

I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ~8 19 2Q 21 22 23 24 25 / ~, dates of birth, death, and employment, and (c) restrictions on access by third parties to the subpoenaed materials. They argued that such a protective order was necessary to protect the participants' anonymity and physician-patien~ privilege. The district court denied the motion to quash but fashioned a protective order designed to preserve confidentiality. The 'court' rejected the res judicata and collateral estoppel arguments on ~he ground that "New York State discovery ~ules and z-~les [in federal court] are different." It rejected the privilege argument on the ground that no state court precedent definitively established such" a privilege; the district court viewed the ~court's decision as q~ashing the Page subpoenas on the ground of burdensomeness and viewed the state court's discussion of privilege as dictum. Finally, though Mount Sinai and ACS argued that even the process of redacting the materials would be burdensome, the court stated that it would not be ngcessary for Dr. Selikoff himself to perform all the redaction and that a scholar such as he should anticipate that others would wish to scrutinize the bases for his published work. It concluded that "the burdensomeness is ; =__ not something which is unduly burdensom~ ; . . ." ........................ Persuaded nonetheless that the study participants were entitled to some degree of privacy protection, the COUrt entered a " I protective order granting the Mount sinai-ACS motion in part. Xn ~-i relevant part, the protective order provides as follows: i. The motion of Mount sinai and the ACS for a .......... protective order ? 7-.-fs hereby GRANTED tw the extent that" 28 Mount Sinai and the ACS may redact the names of the subjects of the two studies . . . , and their street - io - . . i~ ................................ --7