Tobacco Documents Online

~. . • - • • ' ., .~ .... ~.~:~ .2-~,~ ~',~/~'~.a-~- ~' .- :~a:" -" SOUTHERN DIETRICT~I~F NEa'~6RK "'~:-:~"~ - ] - 1N THE MATTER C~ THE i ..... F HE ~MJ sc. 4go. 148-85 ~ " 5 APPLICATION O ZT :- "~: "-~: ...... "" ~-~-" . AMERICAN TC~ACC~O CC~4PARY . 7 8 : ." .i i:i~-,: ...... ~ February 23, 1988 ;" ~ " - . .... .. 12;05 p.m. L~ 11 ~ - HON. ~VIN THOMAS DL~TL, 12 Dis~r zc~ J~dge -~.- .,. _Attorne!~ for plaintiffs, i-. :17 :-. ....... e. - :- • GARYOWEN ~. ~HORRISROE r.-- -- -: _ 18 I~ORALD I. ~STRATIBE ._-~ , .,~-* ..' . , 19 ~I'HCHAS ]g. ~ILEY ".:~ . - -.'. =~'~7-" ~ - _ . :.. ,, ,.~: of cotlnsel , ..~.. _ . ~:_ 20 " " ~, 21 PROEKAUER ROSE GOETZ & MENDELSOHN ~ :',~,,~ ~_ . ~ • " "£% .-/ @&ttorl~ey~ for defendants .._: ~., .... ~ -~;,:.e -" ='-~ "~ -'- r STSVEN B. ~EIOS . • ~=-~c" . 24 >: " " .. -. '~::"--":-:-,':~f counsel..~-- "';'7 " "'- ~':~'~:'-.C~-, . ~4" . - . .~ ~ "*.'gxRrl':~,~N I)1,'; I"~1C r R;.:P'JKI~J~.S, UJS. ~111OUS~. ~y~ f:.. . ~7 .... =: " ~ :{},,~ ; I,'o I ~.Y .',,'~LIAR K. NI.."W ~OR:~ N.y, - 7gI 10g(l - " 6Sg779780

p~ 2 23 88 1 2 3 4 5 6 7 8 9 ID ii 12 13 14 15 16 17 IB 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF N~4 YORK ........... --.-- ................. X IN THE MATTER OF THE APPLICATION OF THE AMERICAN TOBACCO COMPANY -- .............................. X Misc. NO. M8-85 February 23, 198B 12:05 p.m. Before: HON. KEVIN THOMAS DUFFY, District Judge APPEARANCES CHADBOURNE & RARKE Attorneys for plaintiffs, GARYOWEN P. MORRISROE DONALD I. STRAUBER -and- THOMAS E. RISEY of counsel , PROSI(AOER ROSE GOETZ & MENDELSOHN Attorneys for defendants MICHAEL A. CAR[3OZO -and- STEVEN B. FEIGENBAU~ of counsel. SOLrllIF~RN I)IS~I'RI(;]' R~]~R'rI~RS, U.$ COUR'I~IOUS£ J~)l.H~ ~QtlA RI~, NF;,~ yORK, N~y~ - 7~ 1.102(b 6SZ7797SI

Dr 2 23 88 1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 (Case called) MR. CARDOZ O: and the ~merican Cancer parties. 2 We represent Mo~nt Sinai Hospital Society, and we're the moving THE COURT: Let me suggest to you that you fellows have missed the history of science over the last 300 years. Somehow or other I'd appreciate your addressing yourself to that. A long time ago they set up the British Academy. There was a fellow who came down from Switzerland whose name I've forgotten, but his entire reason for being as he saw it was to publish the experiments of scientists. He published them so that those experiments could he duplicated and thus could prove useful to all of mankind. You and I both know that if an experiment can't be duplicated, it's an aberration and not a proof. Yes? MR. CARDOZO: And perhaps one of the issues here, your Honor, is whether or not the tobacco industry in the 20 years since the publication first came out and the three years that we've been litigating about this very issue, could not have conducted and duplicated just that study. THE COURT: This is a statistical study, is it not, sir? statistics? MR. CARDOZO: Yes, it is, your Honor. THE COURT: How can they duplicate it without the ~)b'I31P:RN l)1~,-1~1(71 RI~I~O,~'FERS, U,$. COUR'I'HOUSE I~OI.EY ~,~)UA R I~, NEW YORK. NY. - 791.1020 6N'27797S2

pr 2 23 88 ( 0 7 8 9 I0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 3 MR. CARDOZO: Two ways, your HonDr: They can either get the names of all 18,000 participants in the study -- THE COURT: You are willing to give those names up? MR. CARDOZO: The names, because of the union locals, are public and were published in the articles. THE COURT: The names are public? MR. CARDOZO: The unions that participated in the study are cited in the articles. THE COURT: That is the entire 18,000 people? MR. CARDOZO: Yes, your Honor. THE COURT: At one point in y~ur affidavits you suggest that one of the doctors saw and consulted, of the 18,000, over 4,000 of them. MR. CARDOZO: That's correct. THE COURT: And these 4,000 people who were seen and consulted, all had cancer? 4 out of 18 is about 20 percent. MR. CAR~ZO: 4,000, or that approximate ~ount, were in fact seen, many of whcm were diagnosed as having cancer. Of the 18,000, 4,000 were personally ex~ined. And of course that data could not be given up in any event. THE COURT: Just take the names out. MR. CARDOZO: There are a number of issues, of ~A )[TI HERN [ )1~," I'RI(II" REI~R'rERs, U SCOUR I=HOUS£ FO[ ,~l ?,QUARK. N 1~9,~ YORK. NY - 791=1UZII 6SZ779783

pr 2 23 B8 1 2 3 4 5 6 7 8 9 I0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 course, your Honor. Yes, you could take Out the name, the union local, the date of birth, the date of -- THE COURT: What's the difference? death ' =- MR. CARDOZ O: You leave the union local in. The date of birth and the date of Because then they can identify the individual. Because if they know the union local and they know the date of birth and they know the date of death, it's very simple to find o~t who they are. THE COURT: Okay, take out the union local, then what have you got? MR. CARDOZO: Then we have -- THE COURT: I assume this person -- by the way, the last time I checked, I don't think that death records are confidential. A person is dead, they're dead. MR. CARDOZO: YOU may well be right, your Honor. THE COURT: So that's not confidential at all. MR. CBRDOZO: It is a question of identifying the individual from that information and thereby holding the individual or his estate up to potential ridicule. But of course, your Honor, I would suggest -- THE COURT: I don't buy that. If you can get the death certificate for anybody, and I believe you can, then that's all there is to that. If these people are dead -- I hope not all 4,000 of them. HULrl HERN ])1%'1 RIIH" RE['ORFERS, U.S COURTHOUSE l'OIJ{~ SQ[:ARE, NEW YORK, N.y - 79[.I~Z0 65Z7797S4

pr 2 23 88 f 1 2 3 4 5 6 7 8 9 iO Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 MR. CARDOZO: Unfortunately since w~' re going at this for some period of time, an increasing number are in fact dead. But we're talking about the articles that ~ere published in 1979 and 1980. And we're talking about the tobacco industry's attempt to the use of those studies at a across the country. rebut what they expect to be trial in various courts THE COURT: Let me suggest to you a couple of things. Point No. i: The New York State ruling I don't think is in any way binding upon this Court. I think that New York State discovery rules and rules here are different. I think that the subpoena in the NOw York State case was not lawfully brought, and maybe I'll knock it down, too. The holdings that you folks think are holdings by Judges Griesa and Cannella are interesting, but I'm not sure that I agree wlth them. I want to know why these doctors have published and refused to give up the raw data on which they base their publications. And if they refuse, are they willing to withdraw their publications and say that -- MR. CARDOZO: No. THE COURT: If they're not hermits and they're living in society, they have to respond to the subpoenas. MR. CARDOZO: Your Honors I recognize your rulings -- your inclinations, shall I say. The very sol7 HERN ])t~] R[~I¸ REFURTERS. U.$. COU~UMOUSE F()LEY ~Q[!A~ H. NEW YORK, N,Y. 7~IOZII 6SZ7797SS

pr 2 23 88 5 6 7 8 9 i0 Ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 1 2 3 4 6 |ssue of the raw datat which of course is not what they're seeking here, was in fact what we argued before Justice Danzig. If ! could spend just a minute on the collateral estoppel-res judicata point. THE COU[~T: Why? There is neither collateral estoppel nor res judicata. Forget it. MR. CARDOZO: All right, I will not pursue itt I obviously don't agree since I long ago learned that. with your Honor. But let's deal then with the question of the computer tapes, I guess in ~ffect de novo as if we didn't have the history of 19 previous subpoenas that have been served an~ Justice Danzig's rulings on then. I think Justice Danzig's ruling to the extent it zecognizes in New York law a qualified privilege for this data, is certainly entitled to substantial consideratio~ by this Court on the question of whether there i~ a qualified privilege because, after all, New York law doe~ -- substantive law and privilege law does govern the issue hefore you. Justice Danzig ruled on page 5 that there ms in fact a qualified privilege here. THE COURT: That's straight out dicta. Her ruling basically is that the subpoenas are unenforcible because they' re too broad and burde[Isome° MR. CARDOZO: And she also specifleally ~)trI'H~RN i)i~ [~i{~[" REPORTERS. US. CoU~rHOUSK FOL£¥ ~[[ARE. NHW YORK. N.Y.. 791.i~i~ 6 27797S6

pt 2 23 88 I 2 3 4 5 6 7 8 9 i0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 addressed, and it is reflected on page 52 of the transcript, and in letters, the question of whether or not the computer tapes -- THE COURT: In letters? Getters do~' t count. MR. CARDOZO: Page 52 to 59 of the transcript, your HOnor, there was a lengthy collocray with cosnsel as to whether or not the computer tapes should be produced. Her opinion specifically deals with the c~puter tapes. THE COS~RT: Yes. MR. CARDOZO: And she did not order them produced. She made that rullng based upon affidavits from the heads of major medical institutions in the United States, including the former the Yale Medical School, and others. surgeon general, the head of NYU medical professors, a~d THE COURT: Her lu]iDg, coDnselor, unless I'm goiDg completely crazy, is contained an the paragraph: "The Court finds the compliance with the subpoena would place an unreasonable burden on the medical and science institutions involved and would unduly disrupt the Ongoing research at both MOunt Sinai and the American Cancer Society." That's the paragraph where she rules. All the rest of it is interesting, but not a holding. That's the hedding. MR. CARDOZO: If I can then address Inyself, your Honor, to the question which I think you want to address, ~()LrE'Hp~RN I)I,%-B'RI(~]' R~F~t)R.I'ERS~ U.S COURTHOUSE ~()L£Y ~[IARH, N~'.~' yORK~ N.Y. 791~102q> 652779V~T

~r 2 23 88 1 2 3 4 5 6 7 8 9 i0 ll 12 f-, 13 14 15 16 17 18 19 20 21 22 23 ( 24 25 8 whlcb is, Js there a burden in cc4nplying with this subpoena and what is the need for the subpoenaed materials? It is my understanding, while I would submit to you there is a qualified privilege here, at the very least, even if there is no privilege -- THE COURT: What is the qualified privilege? MR. CARDOZO: The qualified privilege -- THE COURT: What is it? MR. CARDOZO: -- that when y~u are subpoenaing medical and scientific records or a scholar's records from someone who is not a party to the litigation, that the material that that person Has, the underlying data, enjoys a qualified privilege and there is a higher burden that the perry seeking the materi~l must meet before the data needs be produced. THE COURT: There is now a scholar's privilege? Is that the point that you're taking? MR. CARDOZO: l'm saying in the Seventh Circuit in both the Dow Ch~alcal and in the Deitchman cases -- THE COURT: Is there a Court of Appeals for the State of New york case which says there is a beast called the "scholar's privilege"? MR. CAHDOZO: NO, your Honor, there is not. THE COURT: You ~ere the one who told me that T have to go with New York law. SOLFI HERN I)IKIRI(71 REPOR [hRS. US COURTHOUSE F[)L[{Y SQ[IARE, NEW YORK, N y. 79l- [OZO 6SZ77978S

pr 2 23 88 f 1 2 3 4 5 6 7 8 9 i0 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 MR. CARDOZO: The recognition of the privilege accorded experts in New York, and she cites it in her opinion, justifies the fJndlng that there is a qualified privilege here. THE COURT: Wait a minute. Experts are a different beast. Under the New York law, if you produce an expert, do you handle the expert the same way as you do in a federal court? MR. CARDOZO: Justice Danzig recognized there was a higher privilege; add the answer to your question would be no. THE COURT: NO, of course they don' t. These cases are federal cases. MR. CARDOZO: This case is a federal case. I submit to you that the material that they are subpoenaing here is governed by New York privilege law, if such a privilege exists. ! don't think there can be a dispute that if there is a -- THE COURT: If there is a qualified privilege, then the qualifications must match up identically. Add you immediately have blown OUt the matching up of the qualifications identically once you admitted that you handle an expert differently in the federal court than you do in the state court. MR. CARDOZO: I don' t agree with that. Tt seems ~;()tr 1~4ERN I )I,%"IRICI REI~ORT£RS, U.S, COUR'I]~OUS£ F()I.E¥ S~[IAkK. N£W YORK. ~Y. - 791.1gZ0 6S27797S9