Opinion
No. C 00-1740 SBA
January 9, 2003
ORDER GRANTING DEFENDANTS' RENEWED MOTIONS FOR JUDGMENT AS A MATTER OF LAW
At the close of plaintiff's' case-in-chief at trial, defendants filed two motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a): Defendants' Joint Motion for Judgment as a Matter of Law and Defendant R. J. Reynolds Tobacco Company's Motion for Judgment as a Matter of Law. On December 26, 2002, the Court filed its Order Denying Without Prejudice Defendants' Motions for Judgment as a Matter of Law (the "Rule 50 Order"). In the Rule 50 Order, the Court found that plaintiff's had not presented a legally sufficient evidentiary basis for a reasonable jury to find for plaintiff's on the following issues: (1) whether the decedent's smoking outside the immunity period established in California Civil Code § 1714.45 was a proximate cause of his death, (see Rule 50 Order at 3-6); (2) whether, under the risk-benefit test, a specific design of defendants' cigarettes caused the decedent's death, (see id. at 10-12, 20-21); (3) whether plaintiff's could recover damages for lost income or services provided by decedent at the time of his death, (see id. at 12-13); (4) whether, under plaintiff's' separate pre-July 1, 1969 failure-to-warn claim against R. J. Reynolds Tobacco Co. ("Reynolds"), Reynolds had a duty to warn of dangers or risks associated with the use of its products, (see id. at 14-17); (5) whether Reynolds' alleged failure to warn before July 1, 1969 proximately caused the decedent's death, (see id. at 17-19); and (6) whether an ordinary consumer would have recognized the risks of smoking and whether Reynolds' products' performance met the minimum safety expectations of its ordinary consumers, (see id. at 19-20). Pursuant to Waters v. Young, 100 F.3d 1437, 1441-42 (9th Cir. 1996), the Court in its Order specifically identified the evidentiary deficiencies in plaintiff's' case and allowed plaintiff's to re-open their case-in-chief to present additional testimony and other evidence to rectify these deficiencies, (See id. at 2, 6, 12, 13, 17, 19, 20-24.) The Court, however, expressly provided in its Order that the presentation of such testimony and evidence in plaintiff's' extension of their case-in-chief would be subject to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the prior Orders of this Court, and all applicable law, (Id at 23.)
Before trial, the Court found that plaintiff's' post-1969 design defect claim against both defendants under the consumer expectations test is preempted by the Federal Cigarette Labeling and Advertising Act of 1969, 15 U.S.C. § 1331 et seq. (the "Labeling Act"). (See Order Adjudicating Motions in Limine at 17.)
Plaintiff's agreed before trial that they did not have a failure-to-warn claim against Philip Morris Inc. ("Philip Morris") because (1) the decedent did not smoke Philip Morris' products until 1973 and (2) failure-to-warn claims involving the period after July 1, 1969 are preempted by the Labeling Act (See Docket No. 204, Joint Pretrial Statement at 1.) Subsequently, in its Rule 50 Order, the Court also ruled in Reynolds' favor on the issue of whether plaintiff's' failure-to-warn claim against Reynolds can be predicated on events occurring after July 1, 1969. (See Rule 50 Order at 13-14.) The Court noted that Reynolds had argued that the failure-to-warn claim was expressly preempted by the Labeling Act to the extent that it was premised on events occurring after July 1, 1969, and that plaintiff's had not disputed this contention, (see id.)
In response to the Rule 50 Order, plaintiff's re-opened their case-in-chief, proffering the testimony of Weldon White and Dr. Wong, The testimony that was ultimately received in evidence, however, is insufficient to rectify any of the deficiencies the Court identified in its Rule 50 Order. With regard to Weldon White, the only new, relevant testimony he offered was that his father, the decedent, told him sometime between 1953 and 1955 that one of his "core values" was that he did not believe that the cigarette companies would ever lie to him about the health effects of cigarettes. (Tr. 2001:16-20.) This testimony was apparently offered in response to the Court's conclusion in its Rule 50 Order that there was no evidence that the decedent held this core value when he began smoking cigarettes and became highly addicted, and thus there was no evidence that had the decedent been warned of the risks of smoking, he would not have smoked. But the new testimony provided by Weldon White still does not establish that the decedent held this core value in the 1930's, which is when, according to plaintiff's' witnesses, he allegedly became highly addicted to smoking cigarettes. Accordingly, this testimony is insufficient to rectify the evidentiary deficiencies identified by the Court with regard to the issue of proximate cause for plaintiff's' failure-to-warn claim against Reynolds. (See Rule 50 Order at 17-19.)
As for Dr. Wong, a physician who treated the decedent during the final nine months of his life, plaintiff's proffered him to testify that (1) the decedent's smoking outside the immunity period caused the decedent's chronic obstructive pulmonary disease (COPD), which, in turn, caused his death; and (2) high-tar cigarettes create a higher risk of COPD than low-tar cigarettes. (Tr. 1842:13-18, 2032:2-8.) Defendants objected to Dr. Wong's testifying to these opinions on grounds that, inter alia., plaintiff's never submitted a Rule 26 disclosure for Dr. Wong, much less for opinions on these subjects. Although a treating physician may testify as to observations made during the course of treatment, a treating physician is subject to the requirements of an expert witness, including Rule 26 reporting requirements, as to opinions based on information that was not learned in the course of treatment.See Kirkland v. Union Pac. R.R., 189 F.R.D. 604, 608 (D. Nev. 1999); Elgas v. Colo. Belle Corp., 179 F.R.D. 296, 299-300 (D, Nev. 1998). Accordingly, to determine whether Dr. Wong's proffered opinions were based solely on his treatment of the decedent or whether they were based on matter learned outside the course of treatment, the Court allowed the parties to voir dire Dr. Wong outside the presence of the jury prior to his taking the stand
Dr. Wong's responses to the questions on voir dire made pellucid that the proffered opinions were based overwhelmingly on information learned by Dr. Wong outside of his nine-month treatment of decedent and solely in preparation of his planned testimony in plaintiff's' case-in-chief extension, Specifically, Dr. Wong explained, in essence, that after the Court issued its Rule 50 Order he had been contacted by plaintiff's' counsel, who asked him to offer his opinions on whether and how the decedent's smoking history was related to his COPD; Dr. Wong, in turn, consulted a popular pulmonology textbook that indicated the correlation between a patient's "pack-year history" and his developing COPD; and on that basis, he formed an opinion. (See Tr. 2078:13-2081:18, 2091:3-12.) Dr. Wong testified that he did not in any way form this opinion based on his treatment of the decedent. (Tr. 2087:5-15.)
Based on this testimony, the Court determined that Dr. Wong was testifying strictly in the capacity of an expert witness, for whom a Rule 26 disclosure should have been submitted; he was in no meaningful sense testifying as the decedent's treating physician, for whom Rule 26 disclosure requirements would have been relaxed. It also became clear to the Court that, had Dr. Wong been allowed to testify, defendants would have been severely and unfairly prejudiced by plaintiff's' failure to provide a Rule 26 disclosure for Dr. Wong. The lack of a Rule 26 disclosure meant that defendants could not depose Dr. Wong on the subjects of the proffered opinions. Had they been able to do so, perhaps they would have been better prepared to demonstrate that Dr. Wong was not qualified to offer those opinions or to offer evidence in their own case-in-chief that would have undermined Dr. Wong's credibility with regard to those opinions. Accordingly, the Court ruled that it would not permit Dr. Wong to testify to the proffered opinions.
Throughout the course of the pretrial proceedings and trial, the Court bent over backward to ensure that plaintiff's' case would not be prejudiced despite the repeated flouting of the Court's orders and the Federal Rules of Civil Procedure by plaintiff's' counsel (A discussion of plaintiff's' counsel's disregard for the Court's pretrial Orders is set out in detail on pages 1 through 4 of the Court's Order Adjudicating Motions in Limine, filed on December 2, 2002, Further references to plaintiff's' counsel's noncompliant conduct exist in the trial transcript.)
Despite plaintiff's' counsel's clear violation of his Rule 26 obligations with regard to the proffered opinions of Dr. Wong, the Court was nevertheless again inclined, purely out of concern for plaintiff's' ability to prosecute their claims, to overlook this violation and allow Dr. Wong to testify. But given the critical nature of Dr. Wong's proffered testimony and the fact that there was no reasonable way to ensure that defendants would not be severely (and unfairly) prejudiced by the failure to provide a Rule 26 disclosure, the Court had no alternative other than to preclude Dr. Wong from testifying to the opinions that plaintiff's desired him to offer.
Upon receiving the Court's ruling, plaintiff's elected to rest their case. Defendants then renewed their motions for judgment as a matter of law, and the Court granted them on the record,
Plaintiff's' counsel, on the record, waived the opportunity to present any further evidence in plaintiff's' case-in-chief extension. (See Tr. 2098:2-25.)
Plaintiff's have adduced no admissible evidence to overcome the deficiencies in their case that were identified in the Court's December 26, 2002, Rule 50 Order, Accordingly, defendants are entitled to judgment as a matter of law in their favor.
For the reasons set forth in the Court's Rule 50 Order and the instant Order,
IT IS HEREBY ORDERED THAT Defendants' Joint Motion for Judgment as a Matter of Law and Defendant R.J. Reynolds Tobacco Company's Motion for Judgment as a Matter of Law, denied without prejudice on December 26, 2002, and orally renewed by defendants on the record on December 31, 2002, are GRANTED.
The Clerk shall enter judgment in favor of defendants on all claims. The Clerk shall close the file and terminate any pending matters.
IT IS SO ORDERED.