Tobacco Documents Online

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 And that data is what is referred to in the literature as unpublished data. THE COURT: Let's assize that he has unpublished data.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would also to have to be redacted from the tapes in order to prevent the tobacco industry or third parties from using unpublished data and thereby deterring researchers from going into research fields which where they produce the data but have not published its results, someone else can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