Opinion
Civil Action No. 95-5255 (JBS).
September 9, 1999
Howell K. Rosenberg, Esquire, Brookman, Rosenberg, Brown and Sandler, Philadelphia, PA, and
John M. DiDonato, Esquire, Brookman, Rosenberg, Brown and Sandler, Voorhees, New Jersey, Attorneys for Plaintiffs.
William S. Tucker Jr., Esquire, Charles M. Lizza, Esquire, LeBoeuf, Lamb, Greene Macrae, L.L.P., Newark, New Jersey, and
Roger C. Geary, Esquire, David B. Thorne, Esquire, Shook, Hardy Bacon, L.L.P., Kansas City, Missouri, Attorneys for Defendant Lorillard Tobacco Company.
Vincent Gentile, Esquire, Susan Schleck, Esquire, Drinker, Biddle Reath, Princeton, New Jersey, and
Andrew J. McElaney Jr., Esquire, Daniel P. Olohan, Esquire, Nutter, McClennen Fish, Boston, Massachusetts, Attorneys for Defendant Hollingsworth Vose Co.
MEMORANDUM OPINION
Now before the Court are a number of motions in limine filed by defendants Lorillard, Inc. ("Lorillard") and Hollingsworth Vose Co. ("HV"). The Court has studied the parties' briefs on the these motions and has additionally considered argument presented by the parties at a conference held on September 1, 1999. The background of these motions are well known by all parties to the case, and thus this Court need not go into great detail about the evidence sought to be excluded. This Memorandum Opinion briefly describes each of the motions and explains this Court's decision with regard to each motion.
1. Unopposed Motions
In a July 1, 1999 Order, this Court granted four of Lorillard's unopposed motions. There are now four other unopposed motions before this Court: HV's motion to exclude evidence of the indemnity agreement between Lorillard and HV; HV's motion to exclude evidence of its size, wealth, net worth, or resources during the initial phase of the trial; HV's motion to join in Lorillard's motions; and Lorillard's motion to join in HV's motions. As each of these motions are unopposed, the accompanying Order grants each of them.
2. Lorillard's Advertising-Related Motions
a. Arguments
Lorillard has filed two advertising-related motions in limine: the motion to exclude the testimony of William Thompson and the motion to exclude evidence of advertising upon which Thomas Quickel did not rely.
William Thompson worked on the Kent account at Young Rubicam advertising agency, from June until the fall of 1957. Based on his deposition, it is anticipated that Thompson will testify as to Lorillard's strategies to compete with other cigarette companies who make filtered cigarettes, the basis for advertisements claiming Kent filters gave the greatest health protection, the role of Lorillard executives in the advertising campaign, and Thompson's knowledge that the Kent Micronite filter contained asbestos. Defendants believe that plaintiff will offer this testimony to show that claims made in Kent ads were false or without scientific bases because the cigarette industry in the 1950s, more specifically Lorillard, viewed asbestos as a potentially hazardous substance to use in a cigarette filter.
Defendants first seek to exclude testimony regarding Kent advertisements as irrelevant and prejudicial under Fed.R.Evid. 403 because there is insufficient evidence that Thomas Quickel began or continued smoking Kent cigarettes because of advertising; moreover, even if the ads were a motivating factor, only the ads themselves would be relevant, not interpretation and bases of these ads. Defendants also seek to exclude testimony from Thompson to support the argument that Lorillard "responded" to an advertisement characterizing LM cigarettes as containing a "non-mineral" filter by advertising that Kent cigarettes were dust free. Defendants say there is no foundation to this argument because there is no evidence of what LM meant by "non-mineral" or how Lorillard interpreted it, or what "dust-free" was referring to.
Additionally, defendants point out that fraud and negligent misrepresentation claims require reliance, citing Gross v. Johnson Johnson-Merck Consumer Pharmaceuticals Co., 696 A.2d 793, 796-97 (N.J.Super. Law Div. 1997). See also Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070, 1076-77 (3d Cir. 1969) (fraud case where no evidence that plaintiff ever knew of the fraudulent statement); Eli Lilly Co. v. Roussel Corp., 23 F. Supp. 2d 460, 493 (D.N.J. 1998) (negligent misrepresentation case dismissed because plaintiff had no direct knowledge of confidential statements made to the FDA). They argue that there is insufficient evidence in the record that Mr. Quickel relied on any Kent advertising, much less any specific advertisement, and thus that evidence of advertising should be excluded under Rule 402.
In response, plaintiff argues that Mr. Quickel did testify that, at least in part, he relied on ads that Kent was a "healthier" cigarette in smoking those, making Mr. Thompson's testimony about the advertising campaign (including evidence that Lorillard executives played a role in formulating and approving the advertising campaign) highly relevant. Plaintiff also argues that while there must be evidence of reliance, there is no authority to suggest that there need be direct evidence that Mr. Quickel saw a specific Kent advertisement before he started smoking in order to lay the foundation. In any case, plaintiff points out, Mr. Quickel did testify that he switched to Kent because at the time there was a "big advertising campaign on a better, healthier cigarette, and it had to do with the filter" (Quickel Dep. at 92:4-9), and that he remembers a particular advertisement (id. at 102:14-24).
b. Decision
Both of the advertising-related motions in limine will be denied. These statements on behalf of Lorillard at the time of Mr. Quickel's alleged decision to use its product are highly probative of the information defendants placed into the mass media upon which plaintiff testified he relied. To say that he must have perfect recall of a specific commercial if in fact all of the commercials were part of an advertising campaign and he relied upon that campaign is to require plaintiff to prove the impossible 40 years later. It is germane to plaintiff's proof that defendant made misrepresentations in its advertising campaign regarding the alleged improvements to this filter at that time, even if he cannot remember each specific advertisement upon which he relied. The relevant period of time would include advertising which may have induced him to begin using this product as well as advertising to which he was exposed as he decided to continue to use the product. While this Court will not admit evidence of advertisements that were not a part of Lorillard's advertising campaign at the relevant time, it will not categorically rule out the advertising of Kent cigarettes with the Micronite filter during the 1952-1956 time frame. There is enough of a basis in the record to allow a finder of fact to find that Mr. Quickel did rely upon this advertising campaign, and thus evidence of advertisements in the campaign and Lorillard's knowledge and role in the advertising campaign are highly relevant to Mr. Quickel's claims.
3. Lorillard's Motion to Exclude Evidence of Fullam Laboratories' Photomicrographs
a. Arguments
Defendants seek to exclude prints of photomicrographs allegedly depicting particles found in the residue of cigarette smoke tested by Fullam Laboratoties, which would be entered through the testimony of Douglas Hallgren. First, defendants argue that this evidence is not relevant under Fed.R.Evid. 402 because they were conducted on experimental cigarettes supplied by Lorillard and there is no evidence that the cigarettes used in Fullam's tests were similar to those available to Mr. Quickel. Second, they argue, it is irrelevant because Hallgren admits that no one tested to see if any particles were asbestos, they just assumed it because there was asbestos in the filter material; moreover, it cannot even be identified that structures on the micrographs came from the filter — the basement of the Fullam house where the lab was located may have had asbestos ceiling and floor tiles and insulation.
Defendants also argue that though Mr. Hallgren has seen the photomicrographs, he cannot authenticate the photomicrographs or the prints thereof under Fed.R.Evid. 901; because he does not have a clear memory as to how they were produced, does not have personal knowledge of what the photomicrographs depict (under Fed.R.Evid. 602), and did not view the smoke residue under the microscope or take the photomicrographs, he cannot say that they are fair and accurate representations of smoke residue from Sample No. 2 or Kent cigarettes that were publicly available.
In response, plaintiff argues that it is undisputed that the only mineral present in Kent cigarettes was asbestos. Fullam, a microscopist, was hired to conduct research showing no mineral fiber in Kent's smoke. A series of letters, namely an April 26, 1954 letter by Dr. Parmele, Lorillard's Director of Research, indicate that Dr. Fullam found traces of mineral fiber in it and that he would be retained to test Kents treated in some way to eliminate the release of mineral fibers; subsequent letters show that he did conduct those tests in his laboratory which was contamination-free. The July 20, 1954 letter sent by Dr. Parmele to Fullam along with packages of cigarettes noted that 15 of the packs were treated and 5 of which were "regular Kents." An August 12, 1954 letter from Dr. Parmele indicates that Dr. Fullam did test the cigarettes and continued to do so for several months. In May or June of 1954, Mr. Hallgren was hired. Hallgren in his depositions in other cases described the receipt of the cigarettes on July 20 as well as the nature of the testing done on them, and he indicated that all cigarettes tested generated asbestos particles (because there were mineral fibers in the samples and asbestos was the only mineral fiber in the filter). There was a photograph of each viewing under the electron microscope, and negatives were made, which were placed in glassine envelopes that were marked with date/customer/sample number and magnification setting and put in file drawers separated in filing cabinets by client name. Before Hallgren testified, he went and found the Lorillard negatives in a drawer marked L in a file marked "Lorillard Silicates," the same file drawer into which it was put in 1954, though the cabinet itself had been moved.
b. Decision
Lorillard's motion to exclude these photomicrographs and the prints thereof will be denied. The evidence is relevant to show that Lorillard knew that its filter cigarettes released asbestos fibers and tried to fix that and could not but kept the cigarettes on the market anyway. The record contains evidence that Fullam was hired to test for the presence of fibers, and when it conducted those tests in a contamination-free environment, fibers were found that had characteristics typical of asbestos, the only mineral in the cigarette and filter. The letter from Dr. Parmele indicates that at least some of the cigarettes tested were "regular Kents," as opposed to experimental cigarettes, therefore making the tests of these particular cigarettes relevant. Though Mr. Hallgren did not himself conduct the tests, he can testify as to the procedure used in testing these cigarettes as well as the laboratory's procedures for storing the photomicrographs over the years. He can testify to his knowledge and introduce the letter from Dr. Parmele. See Munoz v. Strahm Farms, Inc., 69 F.2d 501 (Fed. Cir. 1995) (discussing the business records exception). Therefore, this Court will deny Lorillard's motion to exclude Mr. Hallgren and evidence of the photomicrographs from Fullam Laboratories.
4. Lorillard's Motion to Exclude Evidence Regarding the Association Between Tobacco Smoke and Disease
a. Arguments
Lorillard asks this Court to exclude evidence regarding the association between tobacco smoke and disease, arguing that this claim is based upon exposure to asbestos-containing products and has nothing to do with tobacco smoke exposure. Thus, evidence of any link between tobacco smoke and disease should be excluded, and plaintiff should be precluded from cross-examining their experts, including Dr. Spears, who is both a fact witness as Chairman of Lorillard and an expert witness, based on this, especially because it would exceed the scope of direct, see Fed.R.Evid. 611, and prejudice the jury, see Fed.R.Evid. 403.
In plaintiff's brief, plaintiff responds that the evidence is relevant because the dangers of tobacco smoke are the very reason Kent cigarettes were designed and marketed as relieving concerns about cigarettes causing lung cancer. As a result of this, Lorillard put out statements saying "we believe the products we make are not injurious to health," statements which plaintiff says is plainly relevant to plaintiff's fraudulent misrepresentation claim. There is no risk of jury confusion, argues plaintiff, because Mrs. Quickel herself will produce evidence that tobacco smoke was not the cause of death.
In response to this, defendant argued that it would agree that Lorillard made the filter in response to public concerns about tar and nicotine, thus making it unnecessary to introduce evidence designed to prove this. Plaintiff contended that the evidence would nonetheless be relevant to test Dr. Spears' and other expert witnesses' credibility and views on medical science.
b. Decision
This motion will be denied without prejudice to defendants' right to re-raise it at trial. The Court simply cannot decide whether such evidence will be relevant until direct examinations have been conducted. Lorillard's intent is relevant to this case; however, if Lorillard and HV admit that the purpose of using the Micronite filter containing asbestos was to remove tar and nicotine, then it may be irrelevant, cumulative, and unnecessarily prejudicial to allow plaintiff to introduce evidence of the same at trial. Even if defendant does make such an admission, such evidence could be relevant to credibility depending on the testimony which the expert witness gives. This Court cannot anticipate the scope of that testimony in advance, and thus the motion will be denied without prejudice.
5. Lorillard's Motion to Administer a Written Questionnaire to Prospective Jurors
Lorillard filed a motion proposing that this Court administer a written questionnaire to prospective jurors in order to gather more information, minimize the risk of prospective jurors blurting out a prejudicial remark, and to encourage candor. Plaintiff opposes the idea of a written questionnaire, including the one particularly suggested by the defendants, arguing that the questionnaire would skew the selection process; instead, plaintiff suggests that the Court conduct normal voir dire.
This Court will grant the motion to administer the written questionnaire as amended. At the September 1, 1999 conference, the Court and the parties discussed the various questions proposed by Lorillard, eliminating some, rewriting others, and designating some questions to be asked of the entire jury pool orally rather than as part of a written questionnaire. The Court will adopt these questions and will add to them any questions suggested by the plaintiff and agreed to by the Court and the parties in the telephone conference to be held on September 9, 1999. The overall questionnaire will be reviewed for length and capacity to confine or overwhelm the jury pool, and an appropriately abbreviated questionnaire will be used as a jury selection aide.
6. Lorillard's Motion to Exclude the Testimony of Richard MacHenry
a. Arguments
Richard MacHenry is a former employee of American Viscose Company who, in a deposition in a previous case, testified that he had conversations with Dr. Parmele (P. Lorillard's Director of Research) in the mid-1950s about American Viscose's efforts to develop a fiber for P. Lorillard to substitute for the asbestos in Kent cigarette filters. According to defendants, Mr. MacHenry's testimony, offered to establish that P. Lorillard wanted to find a replacement filter because of its concern over potential lawsuits, is unreliable, confusing, and prejudicial because Mr. MacHenry does not have a specific recollection of any single conversation with Dr. Parmele, but only vague recollections of the substance of conversations 40 years ago founded on inference. MacHenry admitted on cross, for example, that he does not have a memory of discussing specific diseases with Dr. Parmele and that he presumed Dr. Parmele wanted to get away from asbestos because of the danger, though they never actually discussed the danger. Defendants also argue that his testimony is not probative of any relevant fact, for all companies are concerned about potential lawsuits, whether or not there is actually a basis for those lawsuits. Plaintiff responds that Mr. MacHenry's testimony shows that Lorillard knew as early as March 1954 that asbestos fibers were released into the smoke stream of Kent cigarettes during normal use, and that after learning that from Fullam and Revere, it began to explore ways to replace asbestos as the filtering material — the American Viscose venture was one alternative.
b. Decision
Lorillard's motion will be denied. Mr. MacHenry's testimony is probative of plaintiff's assertion that Lorillard eventually removed the asbestos because Lorillard believed that the asbestos in the filter was harming people. Asbestos was removed from the filter in May 1956; defendants argue that it was removed because of the cost of the manufacturing process, while plaintiff argues that it was removed because of concerns about asbestos contaminating the smoke. While Mr. MacHenry did comment that he and Dr. Parmele never talked about the danger, there is evidence that Dr. Parmele did tell him that he wanted to switch to organic fibers because it would be safer and because of concern over the fear of future lawsuits, despite Dr. Parmele's assertion that there was no evidence that fibers were released. At one point in the deposition, for example, Mr. MacHenry said that Dr. Parmele stated to him his concern about the dangers of inhaling asbestos fiber. A jury could infer that Dr. Parmele either was not completely truthful when he said that there was no evidence that fibers were released or that he did not put full faith in the lack of such evidence. The Court finds that Mr. MacHenry's testimony is reliable enough to allow the jury to hear; defendants are free to cross-examine him on his basis for knowledge of Dr. Parmele's and Lorillard's views.
7. Lorillard's Motion to Exclude Certain Evidence of Other Claims, Reports, or Lawsuits
a. Arguments
There have been twelve actions instituted against defendants by other persons for asbestos-related harms allegedly caused by smoking Kent cigarettes. Defendants seek to exclude evidence of these actions, as well as evidence of claims that have not led to lawsuits, on the grounds of irrelevance, unfair prejudice, and inadmissible hearsay. Those claims, say defendants, are of no consequence to the determination of the issue of whether Kent cigarettes caused Mr. Quickel's mesothelioma, and any probative value would be outweighed by unfair prejudice, confusion, and waste of time.
Plaintiff agrees that the filing of other lawsuits has no probative value, but argues that a blanket prohibition of any evidence of other claims of like injuries would not be appropriate; other claims may have relevance, for experts attempting to determine whether asbestos fibers were released from the cigarettes and to discover the cause of Mr. Quickel's mesothelioma might find persuasive tissue studies or other matters developed during other cases. Plaintiff asks this Court instead to rule upon objections to the introduction of evidence of other claims as they arise at trial, if at all.
b. Decision
The Court agrees that it is inappropriate to make a blanket determination that no evidence or mention of other claims or cases should be excluded. Certainly, the names of other plaintiffs have no bearing on the facts to this case, and for that reason the parties should avoid using names. For example, when questioning expert witnesses about testimony which they have given in other trials, the parties should refer to deposition testimony given on a particular date, rather than in a particular case. However, this Court will permit questioning of experts regarding how many times they have testified in similar matters for similar parties and their earnings from performing such services, unless counsel agree to mutually avoid this. Therefore, the Court will deny this motion without prejudice to defendants' right to reraise objections as necessary at trial.
8. HV's Motions to Exclude Evidence of the Talcott Study and Evidence of Factory Conditions at HV Specialties, Co, Inc.
a. Arguments
Plaintiff plans to introduce at trial two main pieces of evidence that workers at the HV Specialities manufacturing plant working with the very same crocidolite asbestos that was in the Micronite filter contracted mesothelioma at a higher rate than the general public. This includes the study in which Dr. James Talcott and others investigated 33 out of 160 former Specialties employees whose exposure to asbestos was "within the then-current Massachusetts standard of 175 particles per millimeter" and found that because they developed mesothelioma at a higher rate than the general population, crocidolite asbestos is associated with the development of mesothelioma. Plaintiff's evidence also includes five reports prepared by Harold Bavley and his assistant Elise Comproni, inspectors with Massachusetts' Dept. of Labor and Industries' Division of Occupational Hygiene ("DOH") for the DOH's directors, as well as deposition testimony given by Comproni in another case, concerning their visits to the facilities, impressions of the facility, and interpretations of the reports. The reports concern the asbestos dust levels and adequacy of ventilation at the Specialties facility.
Defendants claim that because these pieces of evidence focus on occupational exposure to asbestos, they shed no light on whether Mr. Quickel developed mesothelioma from his potential exposure to asbestos through a consumer product. Unless the evidence is used to prove that there is a known link between inhalation of crocidolite asbestos and mesothelioma, something which defendants said they do not contest, it does not speak to any contested issue. The contested issues are whether Mr. Quickel actually inhaled asbestos from the filter at all when he smoked the cigarettes and, if so, at what level. Neither the Talcott study nor any other studies of conditions at HV's factory have any bearing on those issues.
Plaintiff argues that this evidence should not be excluded because its expert, Dr. Paul Epstein, based his opinion that Thomas Quickel's mesothelioma was caused by asbestos contained in the filters of Kent cigarettes in part on the Talcott Study. Plaintiff also argues that the evidence is relevant because it is the same crocidolite that caused mesothelioma among plant workers ended up in the filters of the Kent cigarettes which Mr. Quickel smoked, making it more likely than not that the asbestos in those filters caused Mr. Quickel's mesothelioma.
b. Decision
This Court agrees with defendants that the Talcott study and other evidence of factory conditions at HV Specialties are irrelevant. The only possible use of them is to show that there is a link between mesothelioma and crocidolite asbestos of the type used in these filters, something which defendants are apparently prepared to concede. Otherwise, the studies speak to occupational, not consumer product, exposure to asbestos fibers, and at much higher levels of exposure than plaintiff's own evidence would suggest that Mr. Quickel faced. The Talcott study itself notes that it is about industrial exposure and that "[t]he risk of such diseases in persons who smoked cigarettes containing this filter material is unknown." Moreover, it is not clear that plaintiff's expert Dr. Epstein did rely on the Talcott study in reaching his opinion. Therefore, defendants' motions to exclude the Talcott study and evidence of factory conditions at HV Specialties will be granted. Plaintiff, however, can renew her attempt to use these pieces of evidence if defendant does anything other than to agree that crocidolite asbestos of the type used in this filter can cause mesothelioma in persons breathing in the asbestos particles.
As defendants pointed out at the September 1, 1999 conference, even assuming that plaintiff is correct that Mr. Quickel was exposed to the asbestos when he smoked the cigarettes and inhaled 90,000 crocidolite particles every day, as plaintiff's expert Dr. Longo would testify, the workers in Dr. Talcott's study inhaled 300,000 particles per day, over a 300% higher rate of exposure. Thus, the Talcott study is not particularly probative of the fact that exposure to crocidolite asbestos at the levels which Mr. Quickel allegedly faced could cause mesothelioma.
In his deposition testimony in another case, Dr. Epstein said that his view that asbestos fibers left the filter when smoked is based upon the reports of Farr, Revere, Fullam, Pauley and Longo. He noted, as an afterthought, "Also, I have to tell you that there was also another report . . . by Talcott that showed that the people who produced that filter . . . were extremely likely to develop malignant mesothelioma themselves."
9. HV's Motion to Exclude Testimony Regarding Spoliated Evidence
a. Arguments
Plaintiff intends to introduce evidence through the testimony of Dr. William Longo regarding experiments he conducted beginning in 1991 on 40 year old Kent cigarettes using either a hand held syringe or automated smoking machine to demonstrate fibers from the filter. Defendants previously sought to exclude testimony about these experiments as scientifically unreliable, but this Court rejected their arguments. Defendants now seek to exclude this evidence as a sanction for plaintiff's spoliation of evidence, for the cigarettes used in the experiments were destroyed without prior notice to the defendants. Moreover, argue defendants, the cigarettes were not examined by Lorillard or HV before they were destroyed and no photographs of them were taken, so only Dr. Longo knows if those were substantially similar to fresh Kent cigarettes allegedly smoked in the 1950s. Defendants contend that because plaintiff destroyed this discoverable matter which the plaintiff should have known was relevant to reasonably forseeable litigation, critically impairing defendants' ability to meet the substantive issues in this case, excluding Dr. Longo's testimony would be an appropriate sanction for the spoliation.
Plaintiff responds by stating that the spoliation doctrine is reserved for cases in which the product that actually caused the plaintiff's injury is destroyed, while here Dr. Longo destroyed only exemplars of the cigarettes Mr. Quickel smoked, and he did so as a necessary step in evidence gathering, rather than in bad faith. Additionally, says plaintiff, this has in no way impaired defendants' ability to defend themselves, especially because defendants often win lawsuits substantially similar to the instant suit, because much of the experiments were videotaped, and because defendants always had the opportunity to ask Dr. Longo for some of the cigarettes remaining in his pack so that they could conduct tests of their own.
b. Decision
HV's motion will be denied, for this does not qualify as spoliation. The Appellate Division recently discussed the doctrine of spoliation in Hewitt v. Allen Canning Company, 321 N.J. Super. 178 (App.Div. 1999). According to the Appellate Division, the elements of spoliation are that:
1) the spoliator knows that litigation exists or is probable,
2) the spoliator willfully or negligently destroys evidence with a design to disrupt the opponent's case,
3) the opponent's case is actually disrupted, and
4) the opponent suffers damages as a result of the spoliator's actions.Id. at 183. Here, defendants simply cannot show that any of the last three elements are met, for the cigarettes, which were only exemplars of the cigarettes which allegedly caused Mr. Quickel's mesothelioma, were destroyed as part of evidence gathering experiments and not out of bad faith. Moreover, there is absolutely no evidence that defendants' case has been hampered or damaged in any way by these actions. Any concerns that defendants may have about the age of the cigarettes, possible deterioration, and the method of testing go only to the weight of the evidence, and they are free to make those arguments before a jury. HV's motion to exclude Dr. Longo's testimony will be denied.
The accompanying Order is entered.
ORDER
This matter having come before the Court upon the defendants' motions in limine; and the Court having considered the parties' submissions and arguments at a conference held on September 1, 1999; and for good cause shown;
IT IS this ____ day of September 1999 hereby
ORDERED that Hollingsworth Vose's motion to exclude evidence of the indemnity agreement between Lorillard and Hollingsworth Vose be, and hereby is, GRANTED; and it is
ORDERED that Hollingsworth Vose's motion to exclude evidence of its size, wealth, net worth, or resources during the initial phase of the trial be, and hereby is, GRANTED; and it is
ORDERED that Hollingsworth Vose's motion to join in Lorillard's motions be, and hereby is, GRANTED; and it is
ORDERED that Lorillard's motion to join in Hollingsworth Vose's motions be, and hereby is, GRANTED; and it is
ORDERED that Lorillard's motion to exclude the testimony of William Thompson be, and hereby is, DENIED; and it is
ORDERED that Lorillard's motion to exclude evidence of advertising upon which Thomas Quickel did not rely be, and hereby is DENIED; and it is
ORDERED that Lorillard's motion to exclude evidence of Fullam Laboratories' photomicrographs be, and hereby is, DENIED; and it is
ORDERED that Lorillard's motion to exclude evidence regarding the association between tobacco smoke and disease be, and hereby is, DENIED WITHOUT PREJUDICE; and it is
ORDERED that Lorillard's motion to administer a written questionnaire to prospective jurors be, and hereby is, GRANTED AS AMENDED; and it is
ORDERED that Lorillard's motion to exclude the testimony of Richard MacHenry be, and hereby is, DENIED; and it is
ORDERED that Lorillard's motion to exclude certain evidence of other claims, reports, or lawsuits be, and hereby is, DENIED WITHOUT PREJUDICE; and it is
ORDERED that Hollingsworth Vose's motion to exclude evidence of the Talcott Study be, and hereby is, GRANTED WITHOUT PREJUDICE TO PLAINTIFF'S RIGHT TO RENEW AN ATTEMPT TO USE THE EVIDENCE if defendants do anything other than to agree that crocidolite asbestos of the type used in the Micronite filter can cause mesothelioma in persons breathing in the asbestos particles; and it is
ORDERED that Hollingsworth Vose's motion to exclude evidence of factory conditions at HV Specialties be, and hereby is,GRANTED WITHOUT PREJUDICE TO PLAINTIFF'S RIGHT TO RENEW AN ATTEMPT TO USE THE EVIDENCE if defendants do anything other than to agree that crocidolite asbestos of the type used in the Micronite filter can cause mesothelioma in persons breathing in the asbestos particles; and it is
ORDERED that Hollingsworth Vose's motion to exclude testimony regarding spoliated evidence be, and hereby is, DENIED.