Lorillard
In the Matter of the Application of R.J. Reynolds Tobacco Company for An Order to Take the Deposition Upon Oral Questions of Mount Sinai School of Medicine in A Certain Action Entitled Carrie Page V. Lincoln Electric Company, Et Al., No. 257046, Pending in the Superior Court, County of Contra Costa, State of California in the Matter of the Application of R.J. Reynolds Tobacco Company for An Order to Take the Deposition Upon Oral Questions of the American Cancer Society in A Certain Action Entitled Carrie Page V. Lincoln Electric Company, Et Al., No. 257046, Pending in the Superior Court, County of Contra Costa, State of California Affidavit in Support of Motion to Quash Subpoenae Index No. 10276/86
Fields
- Author
- Cardozo, M.A.
- Type
- PLEA, PLEADING
- Area
- LEGAL DEPT FILE ROOM/LATERAL FILES
- Site
- N14
- Recipient (Organization)
- Supreme Court Ny County
- Date Loaded
- 18 Dec 2001
- Document File
- 92424208/92424597/Page Litigation Re: Carrie Page V. Lincoln Electric Company, Et Al
- Request
- R1-080
- Litigation
- Feda/Produced
- Named Organization
- American Assn of Univ Professors
- American Cancer Society
- Associated Medical Schools of Ny
- Ca Superior Court Contra Costa County
- Federal Court Hi
- Lig, Liggett
- Lincoln Electric
- Mount Sinai School of Medicine
- Nyu Medical Center
- Proskauer Rose
- RJR, R.J.Reynolds
- Yale Univ
- American Cancer Society
- Named Person
- Cardozo, M.A.
- Kase, N.
- Landrigan, P.
- Page, C.
- Rosenberg, L.E.
- Seidman, H.
- Selikoff, I.J.
- Upton, A.C.
- Walter, Phl
- Yores, F.
- Kase, N.
- UCSF Legacy ID
- mlb09c00
Document Images
'this affidavit in support ofltheirf motion, made pursuant to
CPL,R 55 2304 and 3103, to quash subpoenae duces tecum that have
been served upon them by R.J'. Reynolds Tobacco Company
("Reynolds")~.
2'.., The subpoenae challenged on this moti'on seek pro-
duction of extraordinarily confidential medical data relating
to the physical condition and,personal habits of approximately
18,500 persons. The data, collected over a 22 year period, is
located in 97 file cabinet drawers,(which in turn are in 19
file cabinets), 250 bound volumes and assorted computer tapes.
The material subpoened measures 324 linear feet.
3:., The data issought.for use in a litigation pending
agai'nst Reynolids in CaDifornia with which neither: Mount Sinai
nor the Cancer Society have any. connection eithe.r as a party or
as a w,itness. According to Reynolds, pliai'ntiff's expert in
that liltigation (,who~has not yet even been designated), willi
rely upon certain articles, published in 1968', 1978 and 1979,
authored by Dr. Irving J. Selikoff and others, that were based
on an analysis of some - but by no means all - of the data sub-
poenaed. Those articles concluded that someone exposed to asbes-
tos was-far more likely to contract cancer if he smoked cigar-
ettes than if he did not smoke.
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-based have long ago been returned by Dr. Selikoff to third par-
ties who supplied the informatiom. Information derived from
other data has been transferred to computer tapes and then de-
stroyed (the computer tapes no longer exist in the form,in which,
they existed,when the articles were published). Still other
data consists of clinical notes based on physical examinations
of more than 3,000 individuals, all of'whom are either now dead
or in a different physical condition.
Procedural Backgroundi
5. Presently pending iin a California state court is
an action entitled Page v. Li~ncoln Electric Company et al. The
complaint in that action, to which.Reynolds is also~a party de-
fendant, alleges, inter alia, that plaint,if'f's decedent.incurred
lung cancer as a result of both exposure to asbestos and cigar-
ette smok,ingi.,
6. Reynolids asked the Court in the.Califbrni~a action
to issue a commission to this Court that would'autAorize the
issuance of subpoenae to Mount Sinai and the Cancer Society.Copies of'two affidavits submitted to
the California.Court by
Reynolds in suppor.t of its motion for issuance of a commission
are annexed! as Exhibits 3. and d'.
7. After the commission was issued by the California
Court, Reynolds,made an ex Parte application to this Court for
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(c) The incentive to researchers to~work aggires-
sively to be the first to solve medical.issues wi1L be under-
mined'if the unpublished results of their research wi~l be made
public before they have an.opportunity to check their research,
and publish the results themselves.
19. It is for these reasons that under. New York law
the fruits of academic or scientific research.-- which is what
is subpoenaed here -- are absolutely privileged. (Under federal
law such research is quali~fiedly privileged.).
The Burden
20., Simply to reciite w:.at is involved in producing
the subpoenaed material should establish~its burden. Annexed
to Dr. Selikoff's affidavit (Ex. 8) are photographs of the 324
linear feet of material that is the subject off the subpoenae.
The burden of .redact,in%identifying material from data in 97
file cabinet drawers would,be enormous. The disruption to the
vital on-going research by Dr. Selikoff, who is 71 years oDd
and who would have.t.; personally supervise the redaction pro-
cess, wouldiresuli.in the destruction of the remainder of his
professional Life.
The Lacic ofNeed
21..In the accompanying affidavits of both Dr. Selikoff
and Dr.Philip Landrigan, the Director of Mount Sinai's Division
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Slides, x-rays and other data on which cause of death concl'u-
I sions were based were returned to providers of the information.
Therefore, whether correct conclusions were drawn from data
existing,at the time cannot be checked because the data no
longer exists in anywhere near its original form.
(d) Reynolds' purported.need for. the subpoenaed
material certainly cannot extend to data gathered but never
publ'icly discLosed. Obviously no exper.t will rely on that
material in offering testimony against Reynolds. Yet much of
the information subpoenaed is of this unpublished nature.
(e) Finally there is no reason why Rey,nolds
could not, have conducted its own studies of the effect. of cigar-
ette smok,ing.and,asbestos.. Indeed, as Drs. Landrigan andi
Selikoff explain in their affidavits, and as Reynolds itself
has conceded', there are. many studies that have beeniconductedd
similar to those conducted!by Dr. Selikoff.. It is those studies,
rather than Dr. Selikoff's raw data,, that should be used,by
Reynolds to try, to show that Dr. Selikoff's published conclu-'
sions were erroneous.
22.. In this Latflerr connecti'on, the Court shouldi be
aware of an affidavit filed by Reynolds in a Aawaiian federal
court (Ex. 7) in another case brought by someone who had alleg-
edly incurred lung cancer as a result of exposure to asbestos
and cigarette smoking. In that affidavit Reynolds told the,
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Court.tha2 there were at least 1$ other studies ccncerning the
effect of' cigarette smoking and asbestos. Assuming this to be.
true.. Reynolidssurely does not need Dr. Selikoff'"s materials too
challienge the validity of his published conclusions; it can
rely instead on the 18 studies which it claims show the invali-
dity of Dr. Sel.ikoff's conclusions.
Conclusion
23. There is simply no basis for the present subpoenae..
The material sought is privileged, the burden of production
would be overwhelming and need for the material is non-existent.
The motion to quash the subpoenae should be granted.
. i. .
Michael A. Car' oto
Sworn to before.me this
/('' day of'June, 1986.
Notary Public.
K1nEVK°`1ES TORIELLO.
N0TARY C, Ir' IC. SK.rc' tve. Vek.
Nba3-Al09C1? Obd FchmcndCc.
Ca.n 6kd m N..Y.ri Co~-.
Co-nmss-a~ E.,,ec.JMe.eh i~.
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