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

pr 2 23 i ( 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 i0 to me that if we can just make as an argument, that there is a qualified privilege in Hew York, if we can just assume that for the moment, then I would submit that this Court sitting in diversity, in effect, because there is no federal jurisdiction invoked here, has to follow state privilege law. It may be that the standard that Justice Danzig applied in applying the state privilege law under the C.P.L.R. may be a slightly different standard than the standard you would apply under the Federal Rules of Civil Procsdure, but the initial question of whether or not there is a qualified privilege I submit to you, your Honor, is a question of HOW York substantive law. THE COURT: AssUme that there is a qualified privilege. Have you met all of the qualifications of the qualified privilege? MR. CAHDOZO: If I can then deal with that. First of all, there is a question of burden, your Honor. The question of burden relates to the fact that -- there is no dispute, you can take these tapes and give them to them tomorrow. ~nat's not the burden, obviously. There is no dispute that you have to redact all identifying data from the tapes so that they could not identify the individuals involved in order to preserve the physician-patien prlvl]ege. The affidavits that We have submitted, your Honor, inclsdir.g Dr. Selkoff, Dr. ~ase -- the head of SO[~I'HERN I]I~,-IRI(II• REPORTERS, US COURFHOUS£ FOLEy ~QIIARE, NEW YORK* N.Y ?gl-I 0(]~) 6 2779790

or 2 23 88 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 Mount Sinai -- Danzig found as a particularly because, in you ~uld have to redact rely upon in articles. THE COURT: ii and Dr. Landrigan, and as Justice fact would make this burdensQme, addition to having to redact names, any data that Dr. Selkoff did not Are you suggesting that there is data there which he has ignored intentionally? MR. CARDOZO: I didn't say that. I'm saying, your Honor, that there was a great deal of data on that tape that is not published in the article because he didn't know when he started what data would or would not be relevant. And that data is what is referred to in the literature as unpublished data. THE COURT: Let's assize that he has unpublished data. MR. CARDOZO: That data would also to have to be redacted from the tapes in order to prevent the tobacco industry or third parties from using unpublished data and thereby deterring researchers from going into research fields which where they produce the data but have not published its results, someone else can subpoena. THE COURT: Why? All you have to do is to wrap a protective order arou~ it. MR. CARDOZO: YeS, your Honor. That's why sitting here in this courtroom are representatives from ~()IrI'HERN l)l~i]~l{ii MHI~)R r£R~ U.5. COUR rHous£ F01,£¥ SQtrARK, NKW YORK, [4,7. - 7g I. I0211 65Z779791

pr 2 23 88 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 12 American Tobacco and Reynolds and I don' t know how many others. We're talking about, they say, hundreds of cases that are pending across the United States. They're going to introduce this material in various courts throughout the United" States. They just had a trial in Misslsslppl. There is no ~y that Mount Sinai and the cancer society will have any ability at all data. And more i, lportantly, researcherSo to restrict the access of that you will be deterring the THE COURT: How does it deter the researcher? What are they researching for? Are they researching their own honor and glory or are they researching to achieve s~et hing else? MR. CARDOZO: Your Honor, Dr. Selikoff has been widely recognized as the principal scientist who first identified a potential relationship bet~en asbestos and cancer. He is continuing that research. He~s 71 Tars old. He ~uld be the person who would have to be involved in a time-cons~ing basis to redact the material. THE COURT: Why? I don't understand why. This is a camputer tape. What it takes is a computer person, not Dr. Selkoff, an M.D. MR. CARDOZO: He is the one, your Honor, who would have to determine which material ~s or was not relied upon by him in the published articles. NOLrI'HHRN [)l~-I'kl[~I RI~pOR'rER$, U.S. COUR'fHDUSE F()I.EY ~A21 ARI-" NKW YORK, N.Y. - 7~l.1oz0 6SZ779792

~ 2 23 88 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 THE COORT: But I'm suggesting to you that all of the data Js relevant. If he takes data and he ignores Jt and publishes on that, on the basis vf that, then his publicatlon is flawed. MR. CARDOZO: When I say he has other data, other data that may have absolutely nothing to do with the particular articles. THE COURT: If he keeps his personal checkbook on the computer tape, ~ assure you that a c~mputer operator can take that Out. MR. CARDOZO: Your Honor, there ~re, I don' t know exactly the numbers, a couple of hundred fields of data that weEe put on the computer tape, taken from the raw data, only a relatively small number of those fiedds was analyzed by Dr. Selkoff with respect to researohing his published conclusions. Now, if my friends here say there may be a lot of other data, maybe it relates to where someone lived, maybe someone gets cancer in C~lifornia more frequently than in hew York, those are issues that may go to the Hight that the jury should accord the study. But it 4oesn't change the fact that Dr. Solikoff's articles did not rely upon that da£a. THE COURT: So MR. CARDOZ0: what? It's information. Your Honor, if your ruling is that any time a scientist gathers day that that someone th~nks ~)[rI'HKRN i)l~q RICI RhI'OR'rERS. U.S COURTHOUSE :-(,L,Hy ~,QUARh. Nb.~ YORK. N Y _ 7~1. IOZl3 ~ ~, ~7~79~

pr 2 23 (., ( 88 i 2 3 4 5 6 7 8 9 i0 II 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 14 THE COURT: That's not What ~y ruling is. My ruling is this man has information. On the basis of the information he has selectively determined to publish some of it, from what I'm gathering from you. They are seeking to get that data. I'm suggesting to you that there is no qualified privilege under the circumstances, that the burdensomeness is not something which is unduly burdensome and that if you collect any kind of information and you don't want to turn it over, beec~ae a hermit and store the information in your cave, don't tell people about it. MR. CARDOZO: Your Honor, I think that what you're saying is that if you collect a lot of data and you make a judgment, be it right or wrong, that at the moment, based upon your preliminazy conclusions, only half of it is relevant and you publish an article on that half and you continue for the next ted years to collect f~rther ~ata, everything you've collect.d, whether or not it has anything to do with the particular stray that the plaintiff is relying upon in a federal court proceeding that didn't even exist at the time, has to be produced. Z suggest to you, ,our Honor, that there is no justification for such a ruling and the courts have not gone that far. But perhaps the Way to look at them, rather than burden, let's look at the need, Letls ask ourselves what it i~ -- .~)[rJ~ERN J~J,%~j'~jC// RHJ~)RT]~RS, ~.$. COURTHOUSE b(]l.:-:¥ ~.)[rAR E. NHW YORK, N.¥,- 791.1[J2o ~ ~ Ol~l~l~);~4

pr 2 23 88 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 THE COURT: You just said that the relying upon a stray. 15 plaintiff is MR. CARDOZO: I don' t know. I've never spoken or met with the plaintiff. Their affidavits say, and I ass~e correctlyw that they expect that the plaintiff's expert will get on the witness stand a~ say, in my opinion, there ~s a multiplicative effect and that's why this particular decndent died because he was exposnd to asbestos and smoked cigarettes. If we can assume that for the mcment, one question I assume by skilled cross-examiners, as these gentlemen undoubtedly are, are you aware, Mr. Expert, of other studies that have reached a contrary conclusion? According to their o%a~ affidavits, there are at least 18 other studies that have reached the opposite Conclusion based upon epldemological studies, we're not in a situation, your Honor -- and I think this is very important -- that this is the only study. Their o~ affidavits -- THE COURT: Let's assume that this is the only study going this particular ~y. MR. CARDOZC: Then I would say they can argue the ~ight to the jury. THE COURT: Sure, they can. But can they get a look at the underlying data? SOi71 HKRN I)IKI Rl[!l RKI~R I'KR$, U S COURTHOUSE FOLEY ~QI,A ~ ~ N ~3%%' YORK. N¥. 791.]0Z¢) 6~ Z779795

pr 2 23 88 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 16 MR. CAR[~gZO: They can't -- obviously if you don't order it produced, the answer would he no. THE COURT: Supposing I do order it produced, then what? MR. CARDOZO: If you do order it produced, I asstrne they will analyze the data, and I expect they will shortly thereafter then serve another subpoena on Dr. Selikoff, on Mount sinai, for some more data, and we can run up still more legal fees fighting about that issue, or another tobacco company will serve a slightly different form of subpoena, and Dr. Selikoff's work will either fairly or unfairly be criticized Jn a court proceeding which he is not a party. THE COORT: Counselor, once he published it, he's inviting criticism. If he does not Invite criticism, then he believes he's Cod. MR. CARDOZO: Your Honor0 if we ask ourselves, what are they going -- you give them the data. Let's assume you give them the data. They certainly can' t check, as they argued that they want to do with Justice Danzlg, whether the raw data was properly coded to the computer tape because they're not asking for0 and they now concede that the raw data was too broad. So they van' t see whether Or not -- THE COURT: Why are w~ wasting time on stuff SOLT[~ERN [ )]~i~l{:i¸ REI~ORTERS, U.$. COURTHOUSE FOI.~y S(2UAR ~L NEW y(3RK~ N¥ 791-IOZI~ 6S 779796

~r 2 23 r 88 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 that they' re not asking for? MR. CARDOZ D : Beta use ask what use they are going to put to it. THE COURT: Under the Federal Rules, restr icted might lead 17 I think it is ~portant to you are not to getting evidence. MR. CARDO20: I understand that, your Honor. THE COURT: YOU can get anything which leads or to evidence. ~rn I correct? MR. CAHDOZO: That is absolutely correct. THE COURT: Now, do you doubt that there is something here which might lead to some evidence? MR. CARDOZO: I suggest to you when they have a qualified privilege, your Honor, you have to weigh it. What they want to do is say w~ want the computer tape in order to check whether the math was right, whether the analysis was right on the computer tape, whether or not there is a suggestion that a Californian might have gotten a different kind of cancer or incurred cancer more frequently than someone in Hawaii. Those are all arguments that they can make to the jury, that they can point out to the jury that the study is not entitled to any weight because there is no data that relates to that issue. They don't need the data to show that there is some other variable that may or may not be relevant. THE COURT: Let me suggest to you that the data SOL[I HHRN Dl~l Ml{:l" REI~gR FERS. US COURTHOUSE l:()].H~ 5QLPARE NEW yORK, N Y - 791.]0Z0 6SZ779797

pr 2 23 88 i ?, 1 2 3 4 5 6 7 8 9 l0 ii 12 13 14 15 16 17 18 19 2O 21 22 23 / 24 25 18 is intentionally skewed by the doctor who went out of his way with the intent to achieve a certain result. And be publishes. And then says, "But you can' t see my data." Of what good is this? Are you suggesting that there is some kind of a privilege which he can bide behind~ MR. CARDOZ0: What I'm suggesting is that that's why you encourage other studies to be done, other stodies could have been done, in fact were done. An~ I'm also suggesting -- THE COURT: But I submit to you that until you you can get the underlying data, thing is no good. MR. CARDOZO: You can THE COURT: That other different results. MR. CARDOZ O: that explain this result yo~ can't prove that this however prove -- peOple arrived at And that there may be variables which make it inapplicable to these plalntiffs, because those variables are not confined in the articles that were published and therefore the plaintiffs' expert cannot rely upon that. There is one other pe~nt, and that is: It is ~nequivocal in the affidavits, the computer tapes do not exist and cannot be re-created to the way they existed at the time the articles were published. THE COURT: SO? ~I~N f)f~l~f(~" R~R~R5, US COURTHOUS~ ~)L~ ~QtlAR E, NF~ YORK. NY 791-1020 6S277979S

pr 2 23 B8 l 2 3 4 5 6 7 8 9 I0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. CARDOZD: them the computer tape, and the analysis of it, articles were correct. rely hpon articles that going to take data that 19 And, therefore, even if you gave you cannot use the computer tape, to rebut whether or not the The plaintiffs' expert Is going to ~ere published in 1980, and you' re exists as of 1987, ronghly ten existed whether years, because there was a cutoff date of a few years later when the article was published, which says that there is something different. You can't re-create the facts as they at the time of the article, so you cannot tell or not the article Ms accurate or not accurate. THE COURT: Is the doctor willing to withdraw it? MR. CARDOZO: NO, your Honor, he's not willing to withdraw the articles. THE COURT: Then they get turned over. impressed with that. MR. CARDOZO: Your Honor, is that I respectfully disagree with I 'm not I guess all I can say you. I would also llke to point out to you, your Honor, this is the 21st and 22rid subpoena we have been fighting about. We have been fighting about it for three years. We are talking about research institutions, medical institutions of major significance in this country that have been guhject to, I suggest to ysu, a substantial ~ouNt of harassment. THE COURT: Wait a minute. Supposing they had ~O[] I~ERN I )l~i:~IITl" RHI~RTERS, U.S. COUR FHOU~£ FOLEY ~Q[IAR~ NgW y[~RK. N.y, - ~91.i0/(} 682779799

pr 2 23 88 ( [ 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 20 turned it over the first time? MR. CARDOZO: Then we're dealing with a roomful, a literal roomful of data that ms impossible to turn over. THE COURT= SO now it's cut down tP a reasonable size. SO then turn It Over. That stops the harassment. MR. CARDOZO: Well, I suggest to you that they'll be ~ight back asklng for more, NO. i. Toe harassment also is that while you I don't agree with this, Dr. Sellkoff has $wDrn without contradlctlo~, s~bstantlatec] by his successor, that he will have to be personally involved in the redaction process. Justice ~nzig has found that the redaction proceed is burdens~e. I think issue that in fact has been litigated by the THE COURT: LOok, if I take information which is subject to a subpoena and I bury it in my personal files, tbon the bur~e~ is upon me because I set ~Jp the burc]en. If he waots to redact out 8tuff which is personal to hLm, he can redact it out. I won't stop him from doing that. But it's his fault. That's not the kind of burden we're talking about. MR. CAR~ZO: While I don't think you wo~Id find the an~logy that I'm about to give you persuasive, ! think you will find where we differ, and perhaps it would he useful at lea~t to suggest it. Tf you had written a book ~K)~IH~RN I)15"11{I(~I¸ REIK)R'VER$, U.S COUrtHOUSE ~OLEy ~UARE, NF~4 YORK, N ¥ - 791.IOZ(] 68Z779800

pr 2 23 88 a 7 8 g I0 11 12 f 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 21 in 1980 on the effect of a particular practice on the securities Market, and that that book was based upon your collection of data from 20 years experience at the SEC didn't 100 ked THE COURT: We're talking about ~ule Loss's book. MR. CARDOZO: Z was gaing to change it, but I have time to think it through. YOU collected a lot of data for 20 years and you it over, you know, ~ think these eight fields, based upon what I now know, I don' t have enough information, I'm not goirg to rely ~po~ them. And you publish a book. And ten, 15 yea~s later somebody comes in and subpoenas Judge Duffy's raw data. And you say, you k~ow, fellows, you could have gone out and done the same stL~y* There's hundreds of studies that have been published that reach an opposite conclusion than I do. And anyway, there's a lot of data that I collected that has nothing to do with the published article. I would have thought that it would have surprised you substantially to think that all that data would have had to have been turned over simply because some expert is going to rely upon your book in ~waii or Mississippi or wherever it may be. Now, Justice Danzig said, I don't think I should have to tL/rn that Over. I gather, if my anelogy holds, and I suggest It does, that you would rule otherwise. THE COURT: Yes. If this data has to do with the ~OLriH£RN l)l~IRi(~l" RHI~O~[ER$, U.$ COUR~OUSE K()I'I'[Y F'QUARE" N I'~'V YORK' NY'- 791"1°zii

pr 2 23 / 88 I 2 3 4 5 6 7 8 9 10 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 study which as you want in the computer sense, I trust MR. CARDOZ O: Yes. THE COURT: -- 22 is published, even if it is a different field to make it into, and we're talking about field -- okay?. even if it is in a different area of the computer, and so on and so forth, it all goes. All right? If he has buried it and added ten years on top of it, that's too had. It all goes. [f he stuck his personal checkbook in the middle of it or his letters to his wife, they come out, the names come outw the local union numbers come, out. The date of birth and I assume you want that out along with the date of death. Take them both. SO what else? Am I suggesting that this doctor has to sit down, oh, I didn't use that one, and I didn't use that one, and so on and so forth? Of course I'm not. MR. CARDOZO: You're suggesting that when they then find that there is something that they don't understand, they want to ask him some questions, they want a few more pieces of paper, they want to go back, as they suggest, if there is some misunderstanding or some potential error, that they can then serve, as they did in the state court proceading, a subpoena on him for his deposition? Can they then come back and ask him for still more data which is what happened in the state court ~,()L-I~I.~RN I )l~'l'Rl[ f ]' R H~OR'F(~RS, U.S. COURTHOUSE ~ )[ ~['~y %Q[rAR£. NKW YORK, N y. - 79 I. [0~q} 6SZ779802

pr 2 23 f { 88 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 proceed ing? THE COURT: 23 Has he resigned from the human race? MR. CARDOZO: No. Re's net in the best of health right now, but he did not resign. THE COURT: If he's not in the best of health, then I would suggest that such a subpoena could be quashed on the basis that he's not in good health. But, you know, would you believe that even the President of the United States, people like that, have to turn over things. YOU knew what I'm talking about? MR. CARDOZO: I know what you're talking about. THE COURT: Sure. Now, yon're suggesting that this doctor is more important than the President of the United States. I would suggest to you that perhaps 75 percent of the populace of the United States might agree with you. But that's neither here nor there. Okay? MR. CARDOZO: I would not suggest that this doctor is beyond an appropriate process of this Court. But what I am suggestlr~ is that the policy considerations that are present here, which the Second Circuit said they were not going to reach yet in a subpoena that judge Weinstein had quashed, are in fact present here. T~e affidavit testimony is that the policy considerations are such that a very, very high standard must be met before this data should be ordered produced. FO[~ZY ~2[ AR~., NEW %'ORK, N.y - 791.1021} 6S2779S03

5 6 7 9 18 ii 12 fa 13 14 15 16 17 IB 19 20 21 22 23 24 25 1 2 3 4 24 I would flnally st~ggest to you, your Honor, that that such standard has not been met here, in addition to th~ fact that I believe the ~tate court has already depositlvely ruled on this iEsue. THE COURT: I disagree with you. I'm going to suggest that you people get together and ge£ an ~ppropriate order up keeping these th~ngs c~nf~dential. If you can't, Z'II bare to draw up my owi~. I'm £urther going go to suggest to you that I will stay this. I assume y~u want to go upstairs. MR. CARDOZO: I think it is an appealable order. THE COURT: Whatever it is, you want to get it upstairs. MR. CARDOZ O: Rig ht. THE COURT: I don't object to that. MR. CARDOZO: So you would stay your order? THE COURT: Sure, absolutely. MR. CARDOZO: ~ending app~al? THE COI/RT: Yes. Now, if you fellows cannot get -- I guess you want to appeal it ~ithout the protective order; right? Go ahead, appeal it without the protective order, that's the best way, wltb the understanding that you can apply to me for a protective order if the Court of Appeals affirms. .%(Ri 174ER~4 ~.~i~(71~ R~I~3RTERS. UL~ C¢3URT~dOt~SE F[)L~ ~QUARb~ N~W yORK. NY. - 7~I. IGZO 68Z779804

pr 2 23 88 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 25 YOU can apply to me to vacate my order if the Court of Appeals reverses it. MR. STRAUBER: Your Honor, my name is Donald Stra uber. THE COURT: You know something, counselor, if you're winning, you ought to shut up. Nice to see you. MR, STRAUBER: I make only one point on the stay, your Honor. If there is to be a stay, as I ~nderstand there will be, can I ask that it be conditioned on Mount Sinai moving to the Second Circuit very quickly? And the reason for that is that ~ have a trial scheduled in the Gonzalez case for the end of March. THE COURT: If they are going to wait, you know darn well the stay is vacatable. I'm sure they are not. MR. STRAUBER: We have only four weeks left. THE COURT: Don't worry about it. (Court adjourned] ~X)[ ~I'I4ERN I )l~,-i RK:I R HI'OR'I~RS. U.S. COUR I'HOUS E I~)LHy ~UAR E, NEW yORK, N Y ~ 7~I.IUZll ~S~779805