Summary
finding both models comply with Daubert
Summary of this case from Blue Cross Blue Shield of N.J. v. Philip MorrisOpinion
98 CV 3287.
November 1, 2000.
MEMORANDUM AND ORDER
The parties make a number of in limine motions, most dealing withDaubert questions and Rule 403 of the Federal Rules of Evidence. In deciding the Daubert issues the court has applied the same stringent approach described in Falise v. The American Tobacco Co., 2000 WL 1041325, ___ F. Supp.2d ___ (E.D.N.Y. July 28, 2000). Each of the challenged experts is highly qualified. The extensive demonstrations on the full argument of October 19, 2000 as well as the colloquy permit a brief decision. See the Transcript dated October 19, 2000. These motions may be renewed at trial.
1. Dr. Wendy Max
Dr Max is a "health economics" professor who will give testimony about smoking attributable expenditures. She applies a "mortality ratio" approach in her calculations. Dr. Max computes a "smoking attributable fraction" (SAF) by weighing the relative risks of death for smokers against non-smokers for 19 different diseases. She also develops smoking attributable expenditures for all diseases.
Dr. Max will be permitted to testify on her models. The fact that her models are not as sophisticated as those of Dr. Harrison is no reason to exclude them since the jury may better understand her approach. Her testimony is not unduly cumulative. The complex issues presented require some repetition if the jury is to fully comprehend the subject.
Daubert is not violated. Defendants' motion to exclude or to limit is denied.
2. Dr. Glenn W. Harrison
Dr. Harrison is an economics professor who will testify regarding plaintiffs' expenditures attributable to smoking. He develops a set of equations in which expenditure levels are determined by smoking taking into consideration age, gender, income level, geographic area, blood pressure, "race," etc. He uses his models to isolate the amount of privately insured medical expenditures traceable to smoking. He calculates a "smoking attributable fraction", that is a percentage of all medical expenses (SAF).
Dr. Harrison will be permitted to testify about his two models. They are: first, a causal pathway linked to 16 specific diseases and, second, another pathway to all diseases. His (SAF) testimony may be useful to the jury. The information in the second pathway may assist the jury in evaluating the first. Whether damages can be based upon the second is a question to be resolved at trial. "Causation" as utilized by the expert and as defined by the law need not be fully congruent as long as it is explained to the jury. See Transcript 24-36.
Daubert is not violated. The motion to exclude or limit is denied.
3. Dr. Franklin M. Fisher
Dr. Fisher will testify about relevant statistical and econometric principles. Plaintiff's plan to use him to assist in making complex, econometric models comprehensible to the jury. Defendants claim that his testimony is cumulative and abstract, and does not elaborate on any of his own scientific models.
By stipulation of the parties (Transcript 50) he will not testify on plaintiffs' direct case. He will be used only on rebuttal. A motion to exclude may be offered at that stage of the case and will be entertained.
Daubert is not violated. The motion to exclude is denied.
4. Dr. Jeffrey Harris
Dr. Harris will present models quantifying that portion of smoking related costs attributable to defendants. He uses a "counter factual" world to calculate a "conduct attributable fraction" (CAF) for each year, representing the portion of medical costs due to smoking related illnesses resulting from defendants' alleged fraud. The smoking attributable fraction (SAF) and costs "found" by other experts are also utilized to determine damages on a per annum basis. He will be allowed to testify.
It is defendant's view that Dr. Harris's model is "an antitrust model not a RICO model." Transcript 54. The model may well present insights useful to the jury. The fact that Dr. Harris is a medical doctor and not an economist is not critical in view of his extensive involvement in cigarette issues. The fact that there is some disagreement among plaintiffs' experts does not disqualify them. Transcript 654.
Daubert is not violated. The motion to exclude is denied.
5. Dr. Henry Miller
Dr. Henry Miller will testify about the administrative costs attributable to smoking. Plaintiff's claim two types of damages: (1) An increase in the amount of the claims they must pay resulting from smoking related illness, and (2) increased administrative costs in processing these claims. Dr. Miller will depend upon Blue Cross records to determine the incremental administrative costs associated with processing claims.
He will be allowed to testify only to increased administrative costs based upon number and compensation of additional personnel required because of smoking; other costs are too speculative.
Daubert is not violated. The motion to exclude is denied.
6. Dr. Richard W. Pollay
Dr. Richard Pollay, an advertising expert, is currently employed as a professor of marketing at the University of British Columbia. He will testify that cigarette advertising is designed to be, and is, misleading to the American public since it "countermands all health warnings." Transcript 96. Dr. Pollay will also testify that tobacco industry advertising and advocacy eliminated the value as warning of all sources of health information, thus deliberately negating the statutory warnings.
He will be allowed to testify. The preemption argument may be made at trial.
Daubert is not violated. The motion to exclude is denied.
7. Dr. Robert Cloninger
Dr. Robert Cloninger, a psychiatrist, will testify on a range of topics relating to his expertise in substance abuse matters. These include the historical evolution of "terms" used to describe smoking behavior such as "addiction," why people smoke, why and how people quit smoking, and the significance of tobacco's statements on decisions by people to start or quit smoking. Plaintiff's challenge Dr. Cloninger's core belief that smoking is not addictive. Plaintiff's claim that his conclusion is so at odds with modern medical knowledge as to lack a proper grounding in science.
He will be allowed to testify. "Addiction" is a highly technical subject. There is no Rule 405 violation. Transcript 114.
Daubert is not violated. The motion to exclude is denied.
8. Dr. Suzanne Oparil
Dr. Suzanne Oparil is a "physician scientist," She is a pulmonologist, cardiologist and high blood pressure expert. She plans to testify about research funded by the Commission for Tobacco Research (CTR), including facts pertaining to research itself and results. She had contacts with CTR between 1989 and 1995. Transcript 127. Dr. Oparil's proposed testimony will describe the ways in which CTR is, and was, a legitimate research institution staffed by scientists of "high quality", which conducted research in a manner similar to other scientific institutions.
She will be allowed to testify.
Daubert is not violated. The motion to exclude is denied.
9. Plaintiffs motion to exclude the "death benefit" argument and motion in opposition.
Defendants proffer an "incident based" approach to assessing damages in order to assist the jury in properly calculating plaintiffs' health care expenditures caused by tobacco. Such an approach would take into account the financial impact on health providers of the "premature" deaths of smokers.
Plaintiffs claim that their "prevalence" approach to assessing damages is scientifically valid and, as a matter of policy, defendants should be barred from including the impact of premature deaths in the assessment of damages.
In response, defendants claim that only an incidence based approach can adequately capture the hypothetical difference between plaintiff's economic position had the harmful event not occurred, and the plaintiff's actual economic position. They contend that plaintiffs should be barred from presenting models that do not account for this "lifetime" methodology since it reduces or eliminates the cost of providing additional health care to smokers.
Both forms of evidence may be presented. The contrast may assist the jury in understanding the problem. Transcript 81-82.
Daubert is not violated. The motion to preclude is denied.
10. Plaintiffs motion to exclude a "pass-through" defense
Defendants' plan to offer testimony that plaintiffs' increases in cost may be shifted to consumers in higher premiums without significantly reducing demand. See Transcript 50. Plaintiffs contend that such a "pass-through" defense runs counter to precedent and public policy. Defendants respond in kind that this case is an exception — specifically because plaintiffs rely on a subrogation claim.
This does not present a Daubert issue. Policy factors dictating when pass-through is barred appear not to be present here. The issue may be raised again at the trial.
At this stage of the proceedings it seems doubtful that a defense that will permit substantial harm to insureds should, in effect, be noncompensable to both the insureds (because a suit is not economically viable) and to the plaintiffs (because they can pass the additional costs back to their clients in higher premiums).
Any recovery by plaintiffs would probably lead to lower premiums. The fact that the past higher premium universe and the future lower premium universe are not congruent does not appear decisive on policy grounds — at least without further factual development.
The motion was submitted. It is denied. Defendants may present a "pass-through" defense.
11. Further Motions
Those motions which have not been argued should be scheduled for argument as soon as practicable. Cf. Transcript 51-53.
SO ORDERED.