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From Products Liability Law Daily, September 23, 2014

Admissibility of expert testimony, “empty chair” arguments in Engle-progeny case resolved

By Pamela C. Maloney, J.D.

In advance of a trial on individual liability and punitive damages in an Engle-progeny case, a federal district court in Florida determined that only one of the smoker’s proffered experts was qualified to testify, based on education and professional experience, with regard to the addictive nature of cigarettes. The testimony offered by the smoker’s other expert regarding cigarette design and the increased risk of one type of cancer was “new” and, thus, irrelevant. The court also refused to exclude the manufacturer’s “empty chair” arguments which attributed fault to non-party cigarette companies (Dover v R.J. Reynolds Tobacco Co., September 19, 2014, Scheindlin, S.).

Background. The smoker, Penny Dover, developed coronary heart disease and chronic obstructive pulmonary disease (COPD) allegedly as a result of smoking cigarettes. She filed an action against a number of tobacco companies, including R.J. Reynolds Tobacco Company, asserting claims for strict liability, civil conspiracy to fraudulently conceal, fraudulent concealment, negligence, gross negligence, and breach of express and implied warranties. The issues, pursuant to Phase II of the Engle trial plan, were limited to specific causation, apportionment of damages, comparative fault, compensatory damages, and punitive damages. Before the court were preliminary motions in limine and Daubert challenges to the admissibility of certain expert testimony.

Increased risk of cancer. The tobacco companies sought to exclude the testimony by one of the smoker’s experts, who was expected to testify regarding the effect that changes in cigarette design have had on the risk of developing adenocarcinoma, a type of lung cancer. The smoker countered that the testimony was relevant in determining any allocation of fault because the conduct of all the tobacco companies contributed to her smoking-related injuries. The smoker also claimed that the testimony was needed to rebut the tobacco companies’ contention that she knew of the risks of smoking.

The court agreed with the tobacco companies. The theory that changes in cigarette design increased risk of adenocarcinoma was new, having been articulated within the last year in the 2014 Surgeon General’s Report on the health consequences of smoking. Thus, the evidence was not relevant to notice or to the tobacco company’s alleged failure to act based on that notice. It was also not relevant to the smoker’s punitive damages claim, which required convincing evidence that the tobacco companies had actual knowledge of the wrongfulness of their conduct, nor was it relevant to the smoker’s strict liability claim because she did not claim that she was suffering from any form of lung cancer. Thus, the evidence was irrelevant in establishing a causal link between the conduct of the tobacco companies and her injuries. Finally, the probative value of this evidence in establishing that the smoker would not have smoked or would have quit smoking despite her nicotine addiction if she had only known about the increased risk of this particular type of lung cancer was far outweighed by the potential for prejudice or confusion of the issues.

Minimum effective dose. The tobacco companies also challenged the qualifications of the expert who was proffered to testify on the minimum effective dose theory (which states that “there is an effective dose range of nicotine necessary to initiate and sustain addiction”). A review of the expert’s education, professional qualifications, and professional work led the court to conclude that the expert was qualified to offer an opinion on addiction and the minimum effective dose of nicotine. The expert had spent years studying and compiling research to determine why people smoke, and his education and professional work included pharmacology, particularly with respect to the effects of nicotine. The expert had also published extensively on nicotine addiction and had served as senior editor on the 1988 Surgeon General’s Report on Nicotine Addiction. This background and training also qualified the expert to testify regarding the tobacco companies’ marketing strategies and the effects of cigarette advertising on the public.

“Empty chair” arguments. In rejecting the smoker’s argument that the tobacco companies should be precluded from attempting to place fault with non-party tobacco companies whose liability had not been pleaded or proven, the court explained that the tobacco companies were entitled to use this evidence to rebut the smoker’s proof of causation by proving that she had smoked non-party brands. The tobacco companies also could use the evidence to impeach the smoker’s credibility to the extent that her sworn statements about smoking non-party brands contradicted or refuted the smoker’s claims that the design of the party tobacco companies’ cigarettes stopped her from quitting smoking.

The case number is 3:09-cv-11531(SAS).

Attorneys: Charlie Easa Farah, Jr. (Farah & Farah, PA) for Penny Dover. Dana G. Bradford, II (Smith, Gambrell & Russell, LLP), David M. Monde (Jones Day), David Clifford Reeves (Moseley, Prichard, Parrish, Knight & Jones), and James B. Murphy, Jr. (Shook, Hardy & Bacon, LLP) for R.J. Reynolds Tobacco Co., and Philip Morris U.S.A., Inc. Aviva L. Wernick (Hughes, Hubbard & Reed, LLP), and John Andrew DeVault, III (Bedell, Dittmar, DeVault, Pillans & Coxe, PA) for Lorillard Tobacco Co. Giselle Gonzalez Manseur (Kasowitz, Benson, Torres & Friedman, LLP) for Liggett Group, LLC.

Companies: R.J. Reynolds Tobacco Co.; Philip Morris U.S.A., Inc.; Lorillard Tobacco Co.; Liggett Group, LLC

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