SCHWAB Plaintiffs Seek to Disqualify Company Scientists’ Testimonies as “Junk Science” under Daubert

June 20, 2006 7:28 pm by Gene Borio

As previously scheduled, June 9 saw a flurry of filings in the Schwab case–31, to be exact, mostly the usual motions to exclude various witnesses’ testimonies.

But even Brooklyn Federal Judge Jack B. Weinstein (E.D.N.Y.) must have been just a little taken aback to see the Hausfeld team asking him to exclude ALL of the defendant companies’ scientific witness testimonies as “junk science” which violate — under Daubert and Rule 702 of the Federal Rules of Evidence –legal requirements for the admission of reliable scientific testimony.

Plaintiffs are seeking to show that the industry fraudulently misled smokers to believe “light” cigarettes carried a reduced risk of disease. If the team can establish without doubt that “lights” have no discernible health benefit and that compensation is complete (ie, a “lights” smoker will compensate 100% for the reduction in nicotine levels by smoking harder, deeper, more, etc.) it will hand plaintiffs a powerful weapon in the RICO class action.

The Hausfeld team has pulled together the scientific consensus evidence on “light” cigarettes–as well as the industry’s scientific isolation and seemingly disingenuous website remarks on the subject–very well, sharply collating these aspects with various Daubert rulings.

Defendants’ company scientists have no studies to support their opinions, conducted no independent scientific tests to confirm their opinions, and have not submitted their opinions for publication or review and criticism by the general scientific community. They amount to nothing more than criticisms of the widely accepted and prevailing scientific findings of the public health community contained in the National Cancer Institute’s Monograph 13 and a host of other scientific reports authored by respected public health agencies endorsing identical principles and conclusions. . . .

[C]ourts are particularly cautious about the validity of science that is “disclosed” only in litigation. Such opinions are not “science” at all. Rather, they are litigation-driven critiques offered in the guise of science. “Litigation science” is junk science.” It is inherently unreliable since it wholly fails to satisfy any of the Daubert criteria.

Moreover, the opinions offered by their company scientists are directly at odds with Defendants’ public communications urging reliance on the consensus of the public health community regarding the dangers of light cigarettes. Defendants’ websites and marketing materials refer the public to the recommendations of the public health community regarding low tar cigarettes as definitive sources for the science of smoking and health. The websites provide links to numerous public health studies and reports. 4 Yet, despite their public deference to the public health science,5 Defendants’ company scientists harbor undisclosed, untested contradictory opinions revealed only in litigation. For example, when asked in deposition if they agree with the conclusions and findings of the public health community that “light” cigarettes have provided smokers with no material reduction in health risk, Defendants’ company experts disagree but have been unable to cite research of their own-nor any generally-accepted research that supports such a conclusion.

The Motion’s Table of Contents provides a handy summary of issues:

I. The Federal Rules of Evidence Preclude the Admission of Unreliable and Irrelevant Expert Testimony

II. The Opinions of Defendants’ Company Scientists Should be Excluded Because They Are Not Grounded in Scientific Methods and Are Unreliable

III. The Opinions of Defendants’ Company Scientists Are Repudiated by the Scientific Community

IV. Defendants’ Company Scientists Conducted No In-House Science to Support Their Theories

V. The Untested Opinions of Defendants’ Company Scientists Have Not Been Subject to Peer-Review and Publication

Plaintiffs’ Motion concludes:

As noted:

That an expert testifies based on research he has conducted independent of the litigation provides important, objective proof that the research comport with the dictates of good science . . . For one thing, experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party’s interests. Then, too, independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Finally, there is usually a limited number of scientists actively conducting research on the very subject that is germane to a particular case, which provides a natural constraint on parties’ ability to shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were “derived by the scientific method.”

Daubert, 43 F.3d at 1317 (emphasis added).

Scientific evidence generated for litigation purposes is not science. The “litigation science” offered by the Defendants’ company scientists should be rejected for what it is — “junk.”

Their testimony is inadmissible under the Federal Rules.

Here is the Order that plaintiffs would like Judge Weinstein to issue:

IT IS HEREBY

ORDERED that Plaintiffs’ Motion is GRANTED and that the testimony of Defendants’ company scientists (including Drs. Jeffrey Gentry, Arnold Mosberg, Richard Cox, Edward Robinson, Car Smith, Michael Dixon, and Graham Read) is hereby EXCLUDED.

————-

NB:

1. The touchstone here seems to be Monograph 13, which figured greatly in the DOJ trial also:

Monograph 13, published in the fall of 2001 after release of internal tobacco company documents, was the first consensus report of the public health community regarding the risks associated with smoking low yield cigarettes. It is the most comprehensive and endorsed analysis to date by the public health community on this topic. Its findings have been supported in virtually all subsequent reports of public health officials or agencies.

2. Three of the referenced company scientists also testified in the DOJ case (Drs. Read, Gentry and Dixon).

**———————————————————

Text follows of:

MEMORANDUM IN SUPPORT OF PLAINTIFFS DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY OF DEFENDANTS COMPANY SCIENTISTS

Plus, some ancillary filings, along with all the docket entries for June 9.

**———————————————————

**———————————————————

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

BARBARA SCHWAB, et al., individually, and on behalf of a class of all others similarly situated,

Case No. 01-04-1945 (JBW) (SMG)

Plaintiffs,

PHILIP MORRIS USA, INC., et al,,

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY OF DEFENDANTS COMPANY SCIENTISTS

**———————————————————

TABLE OF CONTENTS

INTRODUCTION 2

ARGUMENT

I. The Federal Rules of Evidence Preclude the Admission of Unreliable and Irrelevant Expert Testimony . . . . 7

II. The Opinions of Defendants’ Company Scientists Should be Excluded Because They Are Not Grounded in Scientific Methods and Are Unreliable . . . . 9

III. The Opinions of Defendants’ Company Scientists Are Repudiated by the Scientific Community ……14

IV. Defendants’ Company Scientists Conducted No In-House Science to Support Their Theories . . . . 16

V. The Untested Opinions of Defendants’ Company Scientists Have Not Been Subject to Peer-Review and Publication . . . . 19

CONCLUSION 21

i

**———————————————————

TABLE OF AUTHORITIES

Cases

Allison i McGhan Med. Corp., 184 FM 1300, 1315 (11th (Ar, 1999) . . . .11, 15,16

Amorgianos v. National R.R. Passenger Corp., 303 F. 3d 256,267 (2d Cir. 2002) 2, 9

Daubert v Merrell Dow Pharms., Inc. 43 F. 3d 1311, 1317-18 (9th (Ar. 1995) 21, 22, 25

Daubert v Merrell Dow Pharms., Inc., 509 US. 579, 589 (1993) 8, 19,21

lid/er v. Shaw Indus., Inc., 167 F. 3d 146, 153 (3d Cir. 1999) 16

Lust v. Merrell Dow Pharms Inc., 89 F. 3d 594, 597 (9th Cir. 1996) 5, 15

McClain v. Metabolife Int’l ‘1, inc., 401 F. 3d 1233, 1239 (11th Cir. 2005) . . . . 15

McCullock v. H. B. Fuller Co., 6) F. 3d 1038, 1042 (2d Cir. 1995) 15

Norris v. Baxter I’Iealthcare Carp., 397 F. 3d 878, 886 (10th Cir. 2005) . 18

United States v. Philip Morris USA, Inc., No. 99-2496 (D. 12 C.), April 21, 2005 24

Wills v. Amerada Hess Corp. 379 F. 3d 32, 49 (2d Cir. 2004) 18

Zwillinger v. Garfield Slope Hous. Carp,, No. 94-4009, 1998 US. Dist LEXIS 21107, at *53 (E.D.N.Y. Aug. 17, 1998) 21

Rules

Rules Fed. R. Evid. 702 8

ii

**———————————————————

INTRODUCTION

The “gatekeeping” function of the court under Daubert is to verify the reliability of expert testimony to prevent the admission of “junk science.” See Amorgianos v. National R. R, Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002) (”The flexible Daubert inquiry gives the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact.”). Defendants’ company reports are “junk science.’

They should be excluded.

Defendants’ company scientists have no studies to support their opinions, conducted no independent scientific tests to confirm their opinions, and have not submitted their opinions for publication or review and criticism by the general scientific community. They amount to nothing more than criticisms of the widely accepted and prevailing scientific findings of the public health community contained in the National Cancer Institute’s Monograph 13 2 and a host

——

1 These “company scientists” include: Drs. Jeffrey Gentry and Arnold Mosberg from R.J. Reynolds; Dr. Richard Cox from Philip Morris; Drs. Edward Robinson and Can Smith from Lorillard; and Drs. Michael Dixon and Graham Read from British American Tobacco Company. While Defendants originally put in reports by additional company scientists, they have been withdrawn as experts in connection with the currently pending motions. The withdrawn company scientists whose expert reports should not be considered by the Court include: Drs. Anthony Albino and Jeffrey Clark from Liggett Group, see Letter from Julie R. Fischer to Paul T. Gallagher, March 10, 2006, Dkt. No. 846 (withdrawing Anthony Albino), attached as Exhibit 1, and Tr. of Proceedings, February 27, 2006, at 52:5-7 (withdrawing Jeffrey Clark), excerpt attached as Exhibit 2; and Drs. Kenneth Podraza and Jane Lewis from Philip Morris, see Letter from Andrea L. Hertzfeld to Judith Bernstein-Gaeta, March 22, 2006, attached as Exhibit 3. Pursuant to an agreement with Plaintiffs prior to the depositions of their scientists, upon withdrawing Drs, Podraza and Lewis, Philip Morris substituted Dr. Richard Cox as its designated expert witness on the subjects set forth in the Lewis and Podraza reports. At his deposition, Dr. Cox did, as agreed, testify regarding issues discussed in the withdrawn expert reports of Drs, Lewis and Podraza. Accordingly, in seeking to exclude Dr. Cox under Rule 702 and Daubert, Plaintiffs refer to those withdrawn reports of Drs. Podraza and Lewis insofar as they contain opinions adopted by and testified to by Dr. Cox.

2 Monograph 13, published in the fall of 2001 after release of internal tobacco company documents, was the first consensus report of the public health community regarding the risks associated with smoking low yield cigarettes. It is the most comprehensive and endorsed

2

**———————————————————

of other scientific reports authored by respected public health agencies endorsing identical principles and conclusions. 3

——

analysis to date by the public health community on this topic. Its findings have been supported in virtually all subsequent reports of public health officials or agencies. See note 3, infra.

3 Monograph 13’s conclusions are supported in the following subsequent public health publications:

• The Health Consequences of Smoking: A Report of the Surgeon General (”Smoking cigarettes with lower machine-measured yields of tar and nicotine provides no clear benefit to health.” United States Department of Health and Human Services, Office of the Surgeon General, 2004, at p. 25), excerpt attached as Exhibit 4;

•Clearing the Smoke: Assessing the Science Base for Tobacco Harm Reduction
(”The weight of the evidence indicates that lower-tar and nicotine yield cigarettes have not reduced the risk of disease proportional to their FTC yields, in part because smokers compensate to obtain more nicotine and in part because the products themselves contain higher concentrations.” National Academy of Sciences, Institute of Medicine, 2001, p. 67), excerpt attached as Exhibit 5;

• IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume
83: Tobacco Smoke and Involuntary Smoking (”More recent studies indicate that the lifetime probability of a continuing cigarette smoker developing lung cancer has increased over time.” World Health Organization, International Agency for Research on Cancer, 2004, p. 175), excerpt attached as Exhibit 6;

• Carcinogen Exposure during Short-term Switching from Regular to ‘Light’ Cigarettes (”Our findings support the idea that smokers compensate to a high degree when switched from their usual brand to a light cigarette. Short-term switching resulted in no significant reduction in carcinogen exposure. Our assessment, based on measures of biochemical exposures, supports the idea that switching to light cigarettes is unlikely to reduce the health risks of cigarette smoking.” Neat Benowitz, Cancer Epidemiology, Biomarkers & Prevention vol. 14(6): 1376-83 (June 2005), at 1376), attached as Exhibit 7;

• Statement of Principles Guiding the Evaluation of New or Modified Tobacco Products (”Extensive reviews of the relative hazard of using existing cigarettes, and changes in cigarettes over the past several decades, have led to the conclusion that the evidence does not support a difference in disease risks with the use of cigarettes with different levels of machine measured tar and nicotine yields or with product modifiers such as light or mild.” World Health Organization, Scientific Advisory Committee on Tobacco Regulation, Nov. 2002, p. 2, available at www.who. intitobaeco!sactob/recommendations/en/modifieden.pdf);

• Centers for Disease Control Tobacco Products Fact Sheet (”Cigarettes with low tar and nicotine contents are not substantially less hazardous than higher-yield

3

**———————————————————

For example, Monograph 13’s two major findings are that: (1) “Epidemiological and other scientific evidence, including patterns of mortality from smoking-caused diseases, does not indicate a benefit to public health from changes in cigarette design and manufacturing over the last fifty years”; and (2) “For spontaneous brand switchers, there appears to be complete compensation for nicotine delivery, reflecting more intensive smoking of lower yield cigarettes.” United States Department of Health and Human Services, National Cancer Institute, Smoking and Health Monograph 13: Risks Associated with Smoking Cigarettes with Low Machine-Measured Tar and Nicotine (2001) (”Monograph 13″), at 10, excerpts attached as Exhibit 8.

Despite the widespread endorsement of these findings by virtually every major public health organization, Defendants’ company scientists dispute them because they “just don’t seem right.” Deposition of Jeffrey Gentry in Schwab v. Philip Morris USA, Inc., March 31, 2006 (”Gentry Dep.”), at 32:1 3-14, excerpts attached as Exhibit 9. “When a scientist claims to rely on a method practiced by most scientists, yet presents conclusions that are shared by no other

——

brands. Consumers may be misled by the implied promise of reduced toxicity underlying the marketing of such brands …. [W]hen comparing full-flavor cigarettes and current light cigarettes, there is no evidence to suggest a lower cancer risk from the low-tar cigarettes.” Centers for Disease Control, available at http : //www,edc.gov/tobaeeo/sgr/sgr 2000!factsheets/factsheets_tobaceo . htm,
accessed Mar. 22, 2006);

• Website of the Pan-American Health Organization (”PAHO’s message to consumers is that so called ‘light’ cigarettes contain the same levels of tar and nicotine [as] their ‘regular’ regular counterparts; switching to light cigarettes does not translate into reduced risk of developing a smoking-related disease; and quitting is the only way to significantly reduce the risk of getting and dying from a tobacco-caused disease.” Pan American Health Organization Regional Office of the World Health Organization, available at www.pa.ho.org/englishi ad/sde/raJTobwntd.htm, accessed Mar. 21, 2006);

• Website of the American Cancer Society (”[T]here is no evidence that lowering the tar content of a cigarette improves the health risk.” www.caneer.org/ doeroot/PED/eontent/PEI)l 02X_CigaretteSmoking.asp?sitcareaPEI),
accessed Mar. 21, 2006).

4

**———————————————————

scientists, the district court should be wary that the method has not been faithfully applied.” Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 597 (9th Cir. 1996).

Further, courts are particularly cautious about the validity of science that is “disclosed” only in litigation. Such opinions are not “science” at all. Rather, they are litigation-driven critiques offered in the guise of science. “Litigation science” is junk science.” It is inherently unreliable since it wholly fails to satisfy any of the Daubert criteria.

Moreover, the opinions offered by their company scientists are directly at odds with Defendants’ public communications urging reliance on the consensus of the public health community regarding the dangers of light cigarettes. Defendants’ websites and marketing materials refer the public to the recommendations of the public health community regarding low tar cigarettes as definitive sources for the science of smoking and health. The websites provide links to numerous public health studies and reports. 4 Yet, despite their public deference to the public health science,5 Defendants’ company scientists harbor undisclosed, untested

——

4 For example, see Philip Morris USA website, available at: http://www. phi lipmorrisusa.com/enThcalt… cigarettes. asp.

5 Michael Szymanczyk, chief executive office of Philip Morris, has testified:

Q: Philip Morris has never said on its Web site, or anywhere else, that: We, Philip Morris agree with that consensus; isn’t that true?

A: You know, I think we have. 1 think we have.I went back and looked at it since my deposition, and I believe that the statement on our web site that says: Smokers and potential smokers should rely on this information when making a decision regarding smoking is, in fact, an implied agreement. It is a statement from the company, a directive from Philip Morris, that, in fact, tells smokers and potential smokers that they should rely on this information, and that it’s true and that it ’s accurate, and that is an implied agreement. . . . That’s right. I believe that is, in fact, an implied agreement.

Trial testimony of Michael Szymanczyk in Engle v. R.J. Reynolds Tobacco Co., June 13, 2000, afternoon session, at 53939:5-53940:6 (emphasis added), excerpt attached as Exhibit 10.

**———————————————————

contradictory opinions revealed only in litigation. For example, when asked in deposition if they agree with the conclusions and findings of the public health community that “light” cigarettes have provided smokers with no material reduction in health risk, Defendants’ company experts

——

Additionally, in its 2002 Petition for Rulemaking to the Federal Trade Commission, Philip Morris stated:

Although PM does not agree with all aspects of Monograph 13, it accepts the significance of its conclusions regarding low-yield cigarettes.

Philip Morris, Inc., Petition for Rulemaking Concerning Tar and Nicotine Testing and Disclosure before the Federal Trade Commission (Sept. 18, 2002), at p. 31 (emphasis added), attached as Exhibit 11, In citing the conclusions that it “accepts,” Philip Morris refers in a footnote to a page of Monograph 13 bearing the following conclusions:

1. Changes in cigarette design and manufacturing over the last fifty years have substantially lowered the sales-weighted, machine-measured tar and nicotine yields of cigarettes smoked in the United States.

2. Cigarettes with low machine-measured yields by the FTC method are designed to allow compensatory smoking behaviors that enable a smoker to derive a wide range of tar and nicotine yields from the same brand, offsetting much of the theoretical benefit of a reduced-yield cigarette.

3. Existing disease risk data do not support making a recommendation that smokers switch cigarette brands. The recommendation that individuals who cannot stop smoking should switch to low yield cigarettes can cause harm if it misleads smokers to postpone serious efforts at cessation.

4. Widespread adoption of lower yield cigarettes by smokers in the United States has not prevented the sustained increase in lung cancer among older smokers.

5. Epidemiological studies have not consistently found lesser risk of diseases, other than lung cancer, among smokers of reduced yield cigarettes. Some studies have found lesser risks of lung cancer among smokers of reduced yield cigarettes. Some or all of this reduction in lung cancer risk may reflect differing characteristics of smokers of reduced-yield compared to higheryield cigarettes.

6. There is no convincing evidence that changes in cigarette design between 1950 and the mid 1980s have resulted in an important decrease in the disease burden caused by cigarette use either for smokers as a group or for the whole population.

Id. (citing Monograph 13, at 146).

6

**———————————————————

disagree but have been unable to cite research of their own-nor any generally-accepted research that supports such a conclusion. See section II, infra.

In fact, Dr. Richard Cox, the former Senior Vice President for Research and Science at Philip Morris USA, Inc. specifically admitted that this tactic is not only Philip Morris’ practice, 6 but its policy:

Q: Do you disagree with any of the conclusions in Monograph 13 as a matter of science?

A: Yes.

….

Q: And why is that disagreement not included in here [on the website}?

A: Because Philip Morris as-as a matter of policy has said we’re not going to debate smoking and health issues in public, we will debate them in scientific circles and in litigation.

Deposition of Richard Cox in Schwab v. Philip Morris USA, Inc., March 31, 2006, at
73:9-19 (emphasis added), excerpts attached as Exhibit 12.

The gates of admissibility should not be open to “litigation science.”

ARGUMENT

I. The Federal Rules of Evidence Preclude the Admission of Unreliable and Irrelevant Expert Testimony

The Federal Rules of Evidence allow the admission of expert testimony only if it “will

—–

6 This litigation strategy is not new to these Defendants. In an attempt to ensure the long-term viability of the cigarette industry in the face of the increasing controversy surrounding smoking and health issues, Defendants have looked to scientists paid by the industry and working in close connection with industry lawyers to generate scientific “evidence” to cast doubt upon the mounting data establishing the dangers of smoking. This “litigation science” has been the tool Defendants have wielded for decades to perpetrate an ongoing fraud on the public regarding smoking and health issues. Consistent with that strategy, Defendants’ company scientists have yet again put forth such “litigation science” in this ease. Sec e.g.., note 12, infra; see also “Conclusion” section, infra.

7 Defendants’ company scientists do not operate in any “scientific circle” nor engage in any scientific debate since their self-serving opinions appear only in litigation.

7

**———————————————————

assist the trier of fact to understand the evidence.” Fed. R. Evid. 702. Admissibility under the Rule requires that: “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Id. These requirements mean that, in order to comply with the Federal Rules “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). To this end, the scientific evidence presented by the proffered expert must have, “a grounding in the methods and procedures of science” and must be “more than subjective belief or unsupported speculation.” Id. at 590.

To guide the Court in this “gatekeeping function,” the Daubert Court set forth four factors probative of the reliability of proffered expert scientific evidence. The Second Circuit Court of Appeals has summarized these factors:

(I) whether a theory or technique can he (and has been) tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) a technique’s known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation; and

(4) whether a particular technique or theory has gained general acceptance in the relevant
scientific community.

Amorgianos v. Nat IKR. Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002) (internal quotations and citations omitted) (emphasis added). None of the opinions of any of Defendants’ company scientists meet any of these factors.8

——

8 Defendants bear the burden of demonstrating that the proffered testimony of their
company scientists meets these requirements. See Berk v. St. Vincent’s Hosp. & Med. Ctr, 380
F. Supp. 2d 334, 349 (S.D.N.Y. 2005) (noting that the burden of showing that expert testimony meets the requirements of Rule 702 falls upon the proponent of the expert testimony).

**———————————————————

Although Daubert requires a court to focus on the methodology employed by the expert, none of Defendants’ company scientists actually employ a methodology independent from that of the public health community. As the Supreme Court recognized, “conclusions and methodology are not entirely distinct from one another,” and while extrapolation from existing data is not an uncommon practice engaged in by experts, “[n]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dlxit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. Thus, a district court should be guided by the principle that, “[w]hen an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.” Amorgianos, 303 F.3d at 266.

IL The Opinions of Defendants’ Company Scientists Should be Excluded Because They Are Not Grounded in Scientific Methods and Are Unreliable

There is no scientific basis for Defendants’ company scientists’ opinions, which contradict the prevailing, virtually unanimous conclusions of the public health community. Illustrative of how disconnected the companies’ internal scientists’ conclusions are to real science is the following testimony of one of the world’s most prominent experts in epidemiology, Sir Richard Doll:

I think at the time of the Florida case I may well have just been on record as saying that low tar cigarettes were a good thing. But since then I’ve had occasion to study the effects of reducing the so-called tar delivery because it’s quite an artificial tar delivery, it’s measured in an apparatus, and comparison with what people actually get from cigarettes, and various changes in cigarette manufacture and the manufacture of filters, and I’ve come to the conclusion that… further reduction has not been beneficial, if beneficial to only a marginal extent. So my views about the reduction in the so-called tar delivery — I say so-called because

9

**———————————————————

it’s as measured by formal apparatus, not as measured by what a smoker actually gets -that …has not been beneficial.

Q: Okay. You said since the Florida case. What have you reviewed that has changed your opinion on that issue?

A: I’ve reviewed a number of papers from the tobacco industry that have been made available, and I’ve reviewed a number of scientific papers on the way people smoke.

Deposition of Sir Richard Doll in Boeken v. Philip Morris. Inc., March 31, 2001, at 28:10-29:1, 30:10-16, excerpts attached as Exhibit 13.

While the conclusions of the public health community are a product of extensive peerreviewed analysis of epidemiological and other scientific evidence, Defendants’ company scientists admit that they have conducted no independent scientific studies that validate their contrary opinions, nor have they published those opinions in peer-reviewed scientific journals.
See sections IV, v. infra.

Rather, Defendants’ company scientists, not experts in the principle field in which they seek to proffer their opinions, supposedly re-analyzed the evidence upon which these generallyaccepted scientific findings are premised and drew their own self-serving, unsupported, untested contrary opinions. There is no indicia of reliability to this type of expert opinion. See e.g., Allison v, McGhan Med. Corp., 184 F.3d 1300, 1315(11th Cir. 1999) (affirming the exclusion of expert testimony and noting that the district court found one study “unreliable because it was a re-analysis of other studies that had found no statistical correlation between silicone implants and disease.”).

Illustrative of the disconnect between the findings of the public health community and Defendants’ company scientists’ “litigation science” are the following:

**———————————————————

Disease Risk Associated With Switching to Low Tar Cigarettes

The public health community has concluded:

• Monograph 13: ” The use of … ‘decreased risk’ cigarettes have not significantly decreased disease risk.In fact, the use of these cigarettes may be partly responsible for the increase in lung cancer for long-term smokers who have switched to the low-tar/low-nicotine brand… [S]witching to these cigarettes may provide smokers with a false sense of reduced risk, when the actual amount of tar and nicotine consumed may be the same as, or more than, the previously used higher yield brand.” Monograph 13 (Exhibit 8), at ii (emphasis added).

• Surgeon General: “Smoking cigarettes with lower machine-measured yields of tar and nicotine provides no clear benefit to health.” United States Department of Health and Human Services, Office of the Surgeon General, The Health Consequences of Smoking: A Report of the Surgeon General (2004) (”2004 Surgeon General’s Report”) (Exhibit 4), at 25 (emphasis added).

• Institute of Medicine: “The weight of the evidence indicates that lower-tar and nicotine yield cigarettes have not reduced the risk of disease proportional to their FTC yields, in part because smokers compensate to obtain more nicotine and in part because the products themselves contain higher concentrations of selected carcinogens.” National Academy of Sciences, Institute of Medicine, Clearing the Smoke: Assessing the Science Base for Tobacco Harm Reduction (2001) (Exhibit 5), at 67.

• Dr. Neal Benowitz, a co-author of Monograph 13: “Our findings support the idea that smokers compensate to a high degree when switched from their usual brand to a light cigarette. Shortterm switching resulted in no significant reduction in carcinogen exposure. Our assessment, based on measures of biochemical exposures, supports the idea that switching to light cigarettes is unlikely to reduce the health risks of cigarette smoking.” “Carcinogen Exposure during Shortterm Switching from Regular to ‘Light’ Cigarettes,” Cancer Epidemiology, Biomarkers & Prevention vol. 14(6):1376-83 (June 2005) (Exhibit 7), at 1376.

Defendants’ company scientists disagree:

• Dr. Jeffrey Gentry (R.J. Reynolds): The conclusions of Monograph 13 “just don’t… marry up with the general trend and the-and the body of science that preceded it” Gentry Dep. (Exhibit 9), at 34:4-6.

• Dr. Jeffrey Gentry (R.J. Reynolds): When asked if there were specific published, peerreviewed conclusions of the public health community that he thought were scientifically wrong, Dr. Jeffery Gentry, answered, “[T]he one thing that - that I can sit here today and think of that just doesn’t seem right to me is some of the conclusions of NCI Monograph 13. And while I’m not an expert in many of the fields that are talked about in that area or in that monograph, there’s just things

**———————————————————

there that - that don’t seem right to me.” Id. at 32:8-14 (Exhibit 9) (emphasis added)

• Dr. Carr Smith (Lorillard): “I may testify regarding the extent to which epidemiological studies indicate a reduction in human disease risk related to (he use of low ‘tar’ cigarettes. For example, I may testify that a majority of epidemiological studies report reductions in lung cancer risk associated with the use of low ‘tar’ cigarettes.” Expert Report of Carr J. Smith, Ph.D., July 28, 2005 (”Smith Report”), at 16, attached as Exhibit 14.

• Dr. Arnold Mosberg (R.J. Reynolds): “It is my opinion, based on the weight of scientific evidence, that Reynolds’ low ‘tar’ cigarettes have reduced biological activity compared to high ‘tar’ cigarettes. Based on chemical, biological, and epidemiological evidence, it is my opinion that the weight of scientific evidence demonstrates that smoking lower tar’ and nicotine cigarettes should present less risk of smoking related diseases than high tar’ cigarettes.” Expert Report of Arnold T. Mosberg, Ph.D. (”Mosberg Report”), at 12, attached as Exhibit 15 (emphasis added).

Reduction in Lung Cancer Risk Resulting From Smoking Low Tar Cigarettes

The public health community has concluded:

• Monograph 13: “Widespread adoption of lower yield cigarettes by smokers in the
United States has not prevented the sustained increase in lung cancer
among older smokers.” Monograph 13 (Exhibit 8), at 146 (emphasis added).

• World Health Organization: “More recent studies indicate that the lifetime probability of a continuing smoker developing lung cancer has increased over time.” World Health Organization, International Agency for Research on Cancer, IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 83: Tobacco Smoke and Involuntary Smoking (2004) (Exhibit 6), at 175 (emphasis added).

Defendants’ company scientists disagree:

• Dr. Arnold Mosberg (Ri. Reynolds): “It is my opinion that the epidemiological
evidence, taken as a whole, demonstrates that smokers of lower ‘tar’ and nicotine
cigarettes are at lower risk for lung cancer
than high ‘tar’ cigarette smokers.” See Mosberg Report (Exhibit 15), at 11-12 (emphasis added).

• Dr. Edward Robinson (Lorillard): “1 may testify about the scientific evidence regarding the use of low ‘tar’ delivery cigarettes, including evidence from epidemiological studies that suggests that smoking filtered or lower ‘tar’ delivery cigarettes may reduce smokers /sic/ risk of developing lung cancer when compared to smoking unfiltered or higher ‘tar’ delivery cigarettes.” Expert

**———————————————————

Report of Edward A. Robinson, Ph.D., July 28, 2005 (”Robinson Report”), at §7,
attached as Exhibit 16 (emphasis added). 9

Benefits From Changes in Cigarette Design

The public health community has concluded:

• Monograph 13: “Epidemiological and other scientific evidence, including
patterns of mortality from smoking-related diseases, does not indicate a benefit to
public health from changes in design
and manufacturing over the last fifty years,” Monograph 13 (Exhibit 8), at 10 (emphasis added).

Defendants’ company scientists disagree:

• Dr. Jeffrey Gentry (R.J. Reynolds): “[F]or decades, Reynolds has expended a tremendous amount of resources in order to develop cigarette designs which reduce the ‘tar’ and nicotine yields of its cigarettes. This effort has been successful and has been marked by a significant reduction in the smoke yields of Reynolds cigarettes.” Expert Report of Jeffrey Gentry, Ph.D., July 25. 2005 (”Gentry Report”), at §27, attached as Exhibit 17 (emphasis added).

Deception of the Public Health Community

The public health community has concluded:

• Monograph 13: “The tobacco companies set out to develop cigarette designs that markedly lowered the tar and nicotine yield results as measured by the Federal Trade Commission (FTC) testing method. Yet, these cigarettes can be manipulated by the smoker to increase the intake of tar and nicotine.” Monograph 13 (Exhibit 8), at ii.

• Dr. David Burns, editor and co-author of Monograph 13: “The failure to disclose to public health authorities the internal industry understanding of the deceptive nature of low tar cigarettes and the influence of compensatory behavior on exposure of smokers who used these cigarettes was intentional. It was based on the understanding that the companies were benefiting from the lack of knowledge among smokers and by the public health authorities.” See Expert Report of Dr. David Burns, March 28, 2005, at §61, attached as Exhibit 18.

—–

9 Dr. Robinson also contradicts the public health community’s findings as to reduction in risk for other diseases, stating, “I may also testify about the scientific evidence regarding the use of low ‘tar’ delivery cigarettes and smoker’s [sic] risk of developing other diseases such as cardiovascular disease and chronic obstructive pulmonary disease.” Robinson Report (Exhibit 16), at §7.

**———————————————————

Defendants’ company scientists disagree:

• Dr. Jeffrey Gentry (R.J. Reynolds): “Through cigarette design, Reynolds has, and continues to, respond to recommendations from the scientific and public health communities with respect to smoking and health issues.” Gentry Report (Exhibit 17), at §25 (emphasis added). He continues, “Furthermore, Reynolds does not design its cigarettes to circumvent the FTC method.” Id. at 1154.

Compensation

The public health community has concluded:

• Monograph 13: “For spontaneous brand switchers, there appears to be complete
compensation for nicotine delivery, reflecting more intensive smoking of lower yield cigarettes.” Monograph 13 (Exhibit 8), at 10 (emphasis added).

Defendants’ company scientists disagree:

• Dr. Michael Dixon (British American Tobacco Company): The vast majority of research studies (many commissioned by UK health authority) on compensation indicate that compensation occurs, but is partial rather than complete. Hence these studies indicate that, in general, smokers will decrease their exposure to smoke components when switching from high to low FTC/ISO yield products.” Expert Report of Dr. Michael Dixon, August 1, 2005, at 26-27, attached as Exhibit 19 (emphasis added).

• Dr. Graham Read (British American Tobacco Company): “The sponsored
projects, as well as other published studies, showed that although compensation
occurred, it was not complete.”
Expert Report of Graham Read, August 1, 2005, at 10, attached as Exhibit 20.

• Dr. Carr Smith (Lorillard): “I may testify that the weight of the evidence suggests
that, while some smokers may compensate, compensation probably is incomplete
resulting in low ‘tar’ cigarettes providing less ‘tar’ exposure to smokers than higher ‘tar’ brands.” Smith Report (Exhibit 14), at 41120.

III. The Opinions of Defendants’ Company Scientists Are Repudiated by the Scientific Community

These opinions countering the consensus findings of public health scientists should not be admitted as evidence in this ease, as they are not generally accepted within the scientific community. Defendants’ company scientists’ opinions are not only unpublished and undisclosed other than in litigation, they have been repeatedly rejected by the scientific community. In

14

**———————————————————

combination, those factors are indicative that their methods and conclusions are highly suspect. Allison, 184 F.3d at 1321 (”Because the untested theories of Allison’s experts are not generally accepted in the scientific community, they obviously have a high potential rate of error,”); Lust, 89 F.3d at 597 (”The last two factors-testing and rate of error—do not apply, however, when the expert has not done original research, but rather has surveyed available literature and drawn conclusions that differ from those presented by the scientists who performed the original work.”).

While no longer the determinative factor, “[g]eneral acceptance in the relevant scientific community is… an important factor” McCullock v. H.B. Fuller Co.! 61 F.3d 1038, 1042 (2d Cir. 1995), and an outlier opinion that does not enjoy general recognition in the scientific community requires heightened scrutiny. See McClain v. Metabolife In! 1, Inc., 401 F.3d 1233, 1239 (11th Cir. 2005) (noting that a the court “need not undertake an extensive Daubert analysis on the general toxicity question when the medical community recognizes the agent causes the type of harm plaintiff alleges” but must do so when “the medical community does not generally recognize the agent as both toxic and causing the injury plaintiff alleges”).

The findings and conclusions representing the consensus of the public health community resulted from years of scientific study, independent of litigation, by prominent scientists and academies whose work has been thoroughly subjected to peer review and publication. These kinds of well-established, widely accepted scientific findings, “allow [] the court to escape the heated rhetoric of the courtroom and obtain a more dispassioned analytical look at the scientific evidence with the assistance of neutral scientific experts.” Allison, 184 F.3d at 1311 (emphasis added). In proffering opinions of company scientists that dispute this wellestablished, widely accepted body of science and which are not the result of independent analysis that has been

**———————————————————

subjected to peer review and publication, Defendants ask this Court, employing heightened scrutiny, to accept outlier conclusions of experts employed by Defendants as if the valid product of real science. They should be rejected. See Heller v. Show Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999) (”[A] district court must examine the expert’s conclusions in order to determine whether they could reliably follow from the facts known to the expert and the methodology used.”); See also, e.g., Allison, 184 F.3d at 1316 (”We find that the district court did not abuse its discretion by considering that the proffered conclusions in studies with questionable methodologies were out of sync with the conclusions in the overwhelming majority of the epidemiological studies presented to the court.”).

IV. Defendants’ Company Scientists Conducted No In-House Science to Support Their Theories

Defendants’ company scientists have themselves admitted in depositions that, while epidemiology is the “gold standard” by which to assess the relative safety of “light” cigarettes vis-à-vis regular cigarettes, Defendants neither employ epidemiologists in their scientific research departments nor have conducted any such science to establish that smokers of “light” cigarettes experience diminished health risks.

For example, Dr. Gentry specifically testified that Ri. Reynolds conducted no science to determine whether smokers of “light” cigarettes actually receive any material health benefit relative to smokers of regular cigarettes:

Q: From 1970 to 2001, did the scientific leaders at RJR Reynolds identify dramatic reductions in the actual health risks to actual smokers of smoking light cigarettes as compared to fullflavor cigarettes?

A: We–we-I-I think the way that you would establish that is looking at the epidemiology, because there’s no gold standard outside of epidemiology. And with respect to that, we don’t- we haven’t done epidemiology.

16

**———————————————————

Q: From 197! to 2001 did the scientific leaders at RJR Reynolds ever scientifically demonstrate or confirm that there was any actual reduction in risk to health of a smoker of a light cigarette as compared to a regular or full-flavored cigarette?

A: And I’d have to go back to my first answer. 1 believe that with the-the gold standard being epidemiology and no single way to demonstrate that beyond that, I - I can’t say that we’ve developed anything that would confirmatively say that because I believe epidemiology is the gold standard for that.

Gentry Dep. (Exhibit 9), at 45:6-15; 46:15-47:3 (emphasis added).

Dr. Mosberg confirmed Dr. Gentry’s testimony that R.J. Reynolds had not conducted the
kind of scientific analysis that would establish that smokers of “light” cigarettes experience a
reduction in health risk relative to smokers of regular cigarettes:

Q: . . . You’re not an epidemiologist, are you?

A: No, I’m not.

Q: And, in fact, Dr. Gentry testified that there are no and have been no epidemiologists on staff at R.J. Reynolds.

A: I think that’s right.

. . .

Q: . . . As a leading scientist in the field of smoking and health, what studies, if any, did the RJR scientists have in 1985 which established that lowering the yield of machine-measured tar in a cigarette resulted in an actual reduction of human risk of disease to an actual smoker? Are there any such studies?

A: I don’t believe any such studies can exist ….

Deposition of Arnold Mosberg in Schwab v. Philip Morris USA, Inc., March 31, 2006
(”Mosberg Dep.”), at 32:24-33:18, excerpts attached as Exhibit 2!,

As the Tenth Circuit Court of Appeals has noted, “Overcoming [a] large body of
epidemiology requires more than simply stating that the studies are wrong.” Norris v. Baxter Heaithcare Corp., 397 F.3d 878, 886 (10th Cir. 2005) (”Plaintiffs and her
experts’ efforts to discredit the epidemiology and are not peer-reviewed, are not

17

**———————————————————

developed independent of litigation, and are not generally accepted in the relevant scientific community. These are all important Daubert considerations.”); see also Wilts v. Amerada Hess Corp. 379 F.3d 32, 49 (2d Cir. 2004) (finding appropriate a district court’s exclusion of expert testimony where expert “admitted that the theory was the product of his own background experience and reading, rather than scientific testing or peer review.”).

Not only do Defendants’ company scientists confirm that they never conducted studies to determine whether actual tar deliveries to actual “lights” smokers were lower than tar deliveries to smokers of regular cigarettes, but the former CEO of Philip Morris also testified that he never instructed the scientists at Philip Morris to study the relative safety of “lights”:

Q: While you were chief executive officer of Philip Morris, did you instruct any of your scientists to conduct research to determine how much tar was actually
inhaled by smokers of commercially available Philip Morris

A: No.

Deposition of James Morgan in Schwab v. Philip Morris USA, Inc., July 7, 2005, (”Morgan Dep.”), at 124:11-17, excerpts attached as Exhibit 22.

Q: Did you, when you were chief executive officer, direct or instruct your scientists or anyone in your research and development section to ascertain what difference in tar levels were actually received by actual smokers as between a commercially available Lights Philip Morris cigarette] and a Philip Morris Regular cigarette?

. . .

A: No.

Id. at 156:8-17.

Q: The only question is, did you convene your senior executives or anyone else within Philip Morris, your scientists, your research people, to ask them what, if anything, could be done to determine whether a commercially available Philip Morris low tar cigarette is any safer than a commercially available Philip Morris regular cigarette?

18

**———————————————————

A: No, I did not.

Id. at 240:6-15. Since Defendants never employed any techniques that could be or have been tested to establish their positions, their opinions should not be admitted as evidence. Daubert, 509 U.S. at 593.

V. The Untested Opinions of Defendants’ Company Scientists Have Not Been Subject to Peer Review and Publication

A review of the publication records of Defendants’ company scientists reveals that they have not published any peer-reviewed articles in scientific journals supporting their conclusions. For example, Dr. Cox testified as follows about his unsupported disagreement with the conclusions of Monograph 13:

Q: The first conclusion is epidemiological and other scientific evidence, including patterns of mortality from smoking-caused diseases, does not indicate a benefit to public health from changes in cigarette design and manufacturing over the last 50 years. As a scientist, do you agree or disagree with that conclusion?

A: As a scientist, I do not agree with that conclusion.

Q: Have you ever published that disagreement?

A: No, sir.

Q: Has anyone from Philip Morris ever published in a peer-reviewed literature a dispute to that conclusion?

A: Not to my knowledge.

Deposition of Richard Cox in Schwab v. Philip Morris USA, Inc., July 20, 2005, at 72:18-73:7, excerpts attached as Exhibit 23. Dr. Mosberg confirmed that the same is true of R.J. Reynolds’ scientists as well:

Q: To date, has RJ Reynolds to the public published any peer-reviewed literature by epidemiologists criticizing or disputing the findings of Monograph 13?

19

**———————————————————

A: Not to my knowledge.

Mosberg Dep. (Exhibit 21), at 56:21-25,

Publication in peer reviewed scientific journals is a “pertinent consideration” according to the Supreme Court, because “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology would be detected.” Daubert 509 U.S. at 593; see also Daubert v. Merrell Dow Pharms., Inc. 43 F.3d 1311, 1317-18 (9th Cir. 1995) (”That the research is accepted for publication in a reputable scientific journal after being subjected to the rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e., that it meets at least the minimal criteria of good science.”); Zwiliinger v Garfield Slope Hous. Corp. No. 944009, 1998 U.S. Dist LEXIS 21107, at *53 (E.D.N.Y. Aug. 17, 1998) (”In this ease, as discussed above, the results of various tests regarding the effects of carpet emissions on mice have been published and subjected to peer review. However, Dr. Gray’s own study, the only study cited by plaintiff which attempts to demonstrate a correlation between exposure to 4-PC and changes in the immune system, has not been completed, and its results have not been published.”).

Moreover, since Defendants’ company scientists do not base their testimony on independent research, peer-review and publication of their work becomes even more vital to a showing that it is based on scientifically sound methods and principles. See Daubert, 43 F.3d at 1317-18 (”If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on ’scientifically valid principles.’ One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication.”).

20

**———————————————————

CONCLUSION

Defendants’ proffer of the opinions of their company scientists is “litigation science.” It is “junk science” because it represents no science. As observed by the Ninth Circuit:

One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying… [I]n determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office.

Daubert v. Merrell Dow Pharms., Inc. 43 F.3d 1311, 1317 (9th Cir. 1995) (emphasis added).

Since the smoking and health controversy arose in the 1950s, the “normal workplace” for Defendants’ company scientists, including those challenged herein, has been the courtroom and lawyers’ offices. See infra. Not only do Defendants’ company scientists take different positions in litigation than they do publicly, but the entire body of science upon which they rely has been carefully crafted in conjunction with and monitored by industry lawyers attempting to protect the industry from decline10 as evidence about the dangers of smoking and has mounted.11

—–

10 Counsel for Defendants has stated, “One thing we know, and it’s not disputed, is that from 1964 forward, the consumption of cigarettes is plummeting. It’s gone down.” Tr. of Proceedings, United States rc Philip Morris USA, Inc., No. 99-2496 (D.D.C.), June 8, 2005, at 23 182:23-25, excerpts attached as Exhibit 24; see also Written Direct Testimony of David Beran in United States i’. Philip Morris USA, Inc., at 71:8-9, excerpts attached as Exhibit 25 (”[O]ur business planning is based on the assumption that the market will continue to decline.”); Id. at 20:19 (”We operate in a declining industry.”); Id. at 58:5-6; (”The reality is that the cigarette market has been declining at an average rate of 1-2 percent annually since around 1982.”); Morgan Dep. (Exhibit 22), at 203:18-204:4 (”1 would say that there were three challenges. Three challenges that the smoking and health issue presented, or three realities or challenges or situations, or conditions. One was that the smoking and health controversy would inexorably lead to a shrinking of the cigarette market over a long period of time. And that was reality that we dealt with, not by trying to change it but by accepting it in our planning, that we consistently planned on a smaller and smaller industry.”).

11 Defendants admit in their own documents this attempt to confuse issues in litigation by creating doubt as to scientific evidence:

**———————————————————

Defendants’ own internal documents make very clear that the “science” generated by the
industry is litigation driven and crafted. As stated by Lorillard:

We have again ‘abdicated’ the scientific research discretional management of the industry to the lawyers’ with virtually no involvement on the part of scientific or business management…

Memorandum entitled, “Scientific Research Liaison Council,” dated April 28, 1978, bates
94682349-2350, at 2349, attached as Exhibit 26.

Similarly, a 1964 document entitled “Report on the Policy Aspects of the Smoking and
Health Situation in the U.S.A.” contains a heading entitled “Influence of the Lawyers,” under
which it states:

In consequence of the importance of the lawsuits, the main power in the smoking and health situation undoubtedly rests with the lawyers, and particularly with the Policy Committee of lawyers [his Committee is extremely powerful; it determines the high policy of the industry on all smoking and health matters research and public relations matters, for example.

1003119099-9135, at 9104-9105 (underline emphasis original, italics added), attached as Exhibit
27.

—–

For nearly twenty years, this industry has employed a single strategy to defend itself on three major fronts — litigation, politics, and public opinion. While the strategy was brilliantly conceived and executed over the years helping us win important battles, it is only fair to say that it is not - nor was it intended to be - a vehicle for victory. On the contrary, it has always been a holding strategy, consisting of

– creating doubt about the health charge without actually denying it.. .

Memorandum from F. Panzer to H. Kornegay, “The Roper Proposal,” May 1, 1972, bates T1MN254468-4471, at 4468, attached as Exhibit 28.

22

**———————————————————

A 1983 Reynolds document admits that “people in research had been turned off because
they were told they could not do certain things by the lawyers.” Memorandum dated March 12,
1983, bates 505745870-5885, at 5883, attached as Exhibit 29.

Defendants’ own counsel even confirmed that industry lawyers played a strong rote in
directing the science conducted by Defendants:

[T]here are lots of issues that have been raised with respect to the suppression of research. I said at the outset that we-that there were a lot of, again, lawyers who had overly aggressive ideas, proposals that they since acknowledged were not good proposals.

Tr. of Proceedings, United States v. Philip Morris USA, Inc., No. 99-2496 (D.D.C.), April 21,
2005, at 19622:6-10, excerpt attached as Exhibit 30.

As noted:

That an expert testifies based on research he has conducted independent of the litigation provides important, objective proof that the research comport with the dictates of good science . . . For one thing, experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party’s interests. Then, too, independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Finally, there is usually a limited number of scientists actively conducting research on the very subject that is germane to a particular case, which provides a natural constraint on parties’ ability to shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were “derived by the scientific method.”

Daubert, 43 F.3d at 1317 (emphasis added).

Scientific evidence generated for litigation purposes is not science. The “litigation science” offered by the Defendants’ company scientists should be rejected for what it is — “junk.”

Their testimony is inadmissible under the Federal Rules.

23

**———————————————————

Dated: June 9, 2006

Document 879-2

Filed 06/09/2006 Page 26 of 28

Respectfully submitted,

/s/ Michael D Hausfeld

Herbert E. Milstein

Michael D. Hausfeld

Lisa M. Mezzetti

Paul T. Gallagher

William P. Butterfield

Douglas J. MeNamara

Benjamin D. Brown

James J. Pizzirusso

Brent W. Landau

Andrea L. Hertzfeld

COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C.

1100 New York Avenue, N.W. Suite 500, West Tower

Washington, D.C. 20005

Phone: (202) 408-4600 Fax: (202) 408-4699

Burton I-I. Finkelstein

Richard M. Volin

Hilary K. Ratway

FINKELSTEIN, THOMPSON & LOUGHRAN

1050 30th Street, N.W. Washington, DC 20007 Phone: (202) 337-8000 Fax: (202) 3378090

LEAD ATTORNEYS FOR PLAINTIFFS

24

**———————————————————

CERTIFICATE OF SERVICE

I, Brent W. Landau, hereby certify that a true and correct copy of the foregoing Plaintiffs’ Daubert Motion To Exclude Expert Testimony Of Defendants’ Company Scientists and supporting memorandum was served upon the counsel listed on the attached Service List via electronic mail.

Dated: June 9, 2006

————————-

Brent W. Landau

**———————————————————

SERVICE LIST

Harold K. Gordon

Steven P. Harte

Jones Day

222 East 41st Street New York, NY 10017-6702 212/326-3939 fax: 2121755-7306

Mark Belasic mabelasic@jonesday.com

Theodore M. Grossman

Jones Day

901 Lakeside Ave., North Point Cleveland, OH 44114-1190

216/586-3939 fax: 2l6/579-0212

Counsel for R.J. Reynolds Tobacco Company and Brown & Williamson Tobacco Corporation

Guy Miller Struve

Matthew Stewart

Davis Polk & Wardwell

450 Lexington Avenue New York, NY 10017 212/450-4000 fax: 212/450-3800 Guy.struvedpw.com
Counsel for Altria Group Inc.

Judith Bernstein-Gaeta

Brian T. Edmunds

Arnold & Porter

555 12th Street, N.W. Washington, D.C. 20004 202/942-5493 lax: 202/942-5999 judith gaeta-bernstein @aporter -corn Counsel for Philip Morris USA Inc.

Philip Pfeffer Ppfeffer@chadbourne.com

Joseph Falcone jfalconechadbourne.com

Chadbourne & Parke, LLP

30 Rockefeller Plaza New York, NY 10 112 212/408-5100 fax: 212/541-5369

Counsel for Defendant British American Tobacco (Investments) Limited and British American Tobacco, p.l.c.

Alan Mansfield mansfield@gtlaw.com

Stephen L. Saxl

Greenberg Traurig, LLP

MetLife Building

200 Park Avenue New York, NY 10166 212/801-2100 fax: 212/801-6400

William L. Allinder

Shook, Hardy & Bacon L.L.P.

2555 Grand Blvd.

Kansas City, MO 641082613 816/474-6550 fax: 816/421-2708 wallinder@shb.com

Lorillard Tobacco Company

2

Peter A. Bellacosa

Kirkland & Ellis LLP

Citigroup Center

153 East 53rd Street

New York, NY 10022-4611 212/446-4800 It: 212/446-4900

pbellacosa@kirkland.com

Counsel for Philip Morris

Leonard A, Feiwus

Julie R. Fischer (JF-7755)

Kasowitz, Benson, Torres & Friedman LLP

1633 Broadway New York, NY 10019 212/506-1785 fax: 212/506-1800 jfischer@kasowitz.com

Counsel for The Liggett Group, Inc.

**———————————————————

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

BARBARA SCHWAB et at., individually and on behalf of all others similarly situated,

Plaintiffs,

PHILIP MORRIS USA, INC. et at.,

Defendants.

Civil Action No. CV 04-1945

DECLARATION OF ANDREA L. HERTZFELD IN SUPPORT OF PLAINTIFFS’ DAUBERT MORION TO EXCLUDE EXPERT TESTIMONY OF DEFENDANTS COMPANY SCIENTISTS

I, Andrea L. Hertzfeld, declare as follows:

I am an attorney with the law firm of Cohen, Milstein, Hausfeld & Toll, P.L.L.C.,
co-lead attorneys for Plaintiffs in this action.

2. 1 am a member of the Ohio arid District of Columbia bars and have been admitted
pro hac vice to practice in this action.

3. Attached to this declaration are true and accurate copies of the following:

Exhibit 1: Letter from Julie R. Fisher to Paul T. Gallagher, March 10, 2006.

Exhibit 2: Excerpt of Transcript of Proceedings before the Honorable Jack B Weinstein and the Honorable Steven M. Gold, February 27, 2006.

Exhibit 3: Letter from Andrea L. Hertzfeld to Judith Bernstein-Gacta, March 22, 2006.

Exhibit 4: Excerpts from The Health Consequences of Smoking: A Report of the
Surgeon General, United States Department of Health and Human Services, Office of the Surgeon General (2004).

Exhibit 5: Excerpts from Clearing the Smoke: Assessing the Science Base for
Tobacco Harm Reduction. National Academy of Sciences, Institute of Medicine (2001).

**———————————————————

Exhibit 6: Excerpts from IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 83: Tobacco Smoke and Involuntary Smoking, World Health Organization, International Agency for Research on Cancer (2004).

Exhibit 7: Neal Benowitz, et at., Carcinogen Exposure during Short-term
Switching from Regular to Light” Cigarettes, Cancer Epidemiology, Biomarkers & Prevention vol. 14(6):1376-83 )(June 2005).

Exhibit 8: Excerpts from Smoking and Health Monograph /3: Risks Associated with Smoking Cigarettes with Low Machine-Measured Tar and Nicotine, United States Department of Health and Human Services, National Cancer Institute (2001)

Exhibit 9: Excerpts from the Deposition of Jeffrey Gentry in Schwab v. Philip Morris USA, Inc., March 31, 2006.

Exhibit 10: Excerpts from the Trial testimony of Michael Szymanczyk in Engle v.
Rd. Reynolds Tobacco Co., June 13, 2000, afternoon session.

Exhibit 11: Philip Morris, Inc., Petition for Rulemaking Concerning Tar and Nicotine Testing and Disclosure before the Federal Trade Commission (Sept. 18, 2002).

Exhibit 12: Excerpts from the Deposition of Dr. Richard Cox in Schwab v. Philip
Morris USA, Inc., March 31, 2006.

Exhibit 13: Excerpts from the Deposition of Sir Richard Doll in Boeken v. Philip
Morris, Inc., March 31, 2001.

Exhibit 14: Expert Report of Carr Smith, Ph.D., July 28, 2005.

Exhibit 15: Expert Report of Arnold T. Mosberg, Ph.D.

Exhibit 16: Expert Report of Edward A. Robinson, Ph.D., July 28, 2005.

Exhibit 17: Expert Report of Jeffrey Gentry, Ph.D., July 25, 2005.

Exhibit 18: Expert Report of Dr. David Burns, March 28, 2005.

Exhibit 19: Expert Report of Dr. Michael I)ixon, August 1, 2005.

Exhibit 20: Expert Report of Graham Read, August 1, 2005.

Exhibit 21: Excerpts from the Deposition of Arnold Mosberg in Schwab v. Philip
Morris USA, Inc., March 31, 2006.

2

**———————————————————

Exhibit 22: Excerpts from the Deposition of James Morgan in Schwab v. Philip Morris USA, Inc., July 7, 2005.

Exhibit 23: Excerpts from the Deposition of Richard Cox in Schwab v. Philip Morris USA. Inc., July 20, 2005.

Exhibit 24: Excerpts of Transcript of Proceedings, United States v. Philip Morris
USA, Inc., No. 99-2496 (I).D.C,), June 8, 2005.

Exhibit 25: Written Direct Testimony of David Beran in United States v. Philip Morris USA, Inc.

Exhibit 26: Lorillard Memorandum entitled, “Scientific Research Liaison Council,” dated April 28, 1978, bates 94682349-2350.

Exhibit 27: “Report on the Policy Aspects of the Smoking and Health Situation in
the U.S.A.,” bates 1003119099-9135.

Exhibit 28: Memorandum from F. Panzer to H. Kornegay, “The Roper Proposal,”
May 1, 1972, bates T1MN254468-447I.

Exhibit 29: R.J. Reynolds Memorandum dated March 12, 1983, bates
505745870-5885.

Exhibit 30: Excerpt of Transcript of Proceedings, United States v. Philip Morris
USA, Inc., No. 99-2496 (D.D.C.), April 21, 2005.

I declare under penalty of perjury of the laws of the United States, the District of
Columbia and the State of New York that the foregoing is true and correct.

This Declaration was signed by me on June 9, 2006, at Washington, District of Columbia.

__________________

Andrea L. Hertzfeld

3

**———————————————————

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

BARBARA SCHWAB, et a!., individually; and on behalf of a class of all others similarly situated,

Plaintiffs,

PHILIPMORRISUSA,INC., INC.,etal

Defendants.

Case No. CV-0401945 (JBW) (SMG)

PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY OF DEFENDANTS COMPANY SCIENTISTS

COME NOW

Plaintiffs to move this Court to exclude the expert testimony of Defendants’ company scientists (including Drs. Jeffrey Gentry, Arnold Mosberg, Richard Cox, Edward Robinson, Can Smith, Michael Dixon, and Graham Read), pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In support of their motion, Plaintiffs rely upon the memorandum of law submitted herewith.

Dated: June 9, 2006

Respectfully submitted,

/s/ Michael D. Hausfeld Herbert E. Milstcin Michael D. Hausfeld Lisa M. Mezzetti Paul 1. Gallagher William P. Butterfield Douglas J. McNamara Benjamin D. Brown James J. Pizzirusso Brent W. Landau Andrea L. Herzfeld COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.LC. 1100 New York Avenue, N.W. Suite 500, West Tower Washington, D.C. 20005

**———————————————————

Phone: (202) 408-4600 Fax: (202) 408-4699

Burton H. Finkeistein

Richard M. Volin

Hilary K. Ratway

FINKELSTEIN, THOMPSON & LOUGHRAN

1050 30th Street, N.W. Washington, DC 20007 Phone: (202) 337-8000 Fax: (202) 337-8090

LEAD ATTORNEYS FOR PLAINTIFFS

**———————————————————

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

BARBARA SCHWAB, et al., individually; and on behalf of a class of all others similarly situated,

Plaintiffs,

v.

Defendants.

Case No. CV

-0401945 (JBW) (SMG)

PHILIP MORRIS USA, INC., et al.,

PROPOSED ORDER GRANTING PLAINTIFFS DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY OF DEFENDANTS COMPANY SCIENTISTS

AND NOW, this day of

______ 2006, upon consideration of Plaintiffs’ Daubert Motion to Exclude Expert Testimony of Defendants’ Company Scientists,

IT IS HEREBY

ORDERED that Plaintiffs’ Motion is GRANTED and that the testimony of Defendants’ company scientists (including Drs. Jeffrey Gentry, Arnold Mosberg, Richard Cox, Edward Robinson, Car Smith, Michael Dixon, and Graham Read) is hereby EXCLUDED.

The Honorable Jack B. Weinstein

**———————————————————

July 9, 2006 Docket:

06/09/2006 874 MOTION in Limine To Exclude The Testimony of Matthew L. Myers by R.J. Reynolds Tobacco Company. (Attachments: # 1 Memorandum of Law# 2 Affidavit of Sari H. Schneider# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E)(Geremia, Todd) (Entered: 06/09/2006)

06/09/2006 875 MOTION in Limine To Exclude The Testimony of Dr. Joel B. Cohen by R.J. Reynolds Tobacco Company. (Attachments: # 1 Memorandum of Law# 2 Affidavit of Sari H. Schneider# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D pt.1# 7 Exhibit D pt.2# 8 Exhibit E# 9 Exhibit F# 10 Exhibit G# 11 Exhibit H# 12 Exhibit I# 13 Exhibit J# 14 Exhibit K# 15 Exhibit L# 16 Exhibit M# 17 Exhibit N# 18 Exhibit O)(Geremia, Todd) (Entered: 06/09/2006)

06/09/2006 876 NOTICE by British American Tobacco (Investments) Ltd. of Supplemental Authority in Support of Defendant British American Tobacco (Investments) Limited’s Motion for Summary Judgment Dismissing Plaintiffs’ RICO Claims (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Pfeffer, Philip) (Entered: 06/09/2006)

06/09/2006 877 Letter to The Honorable Jack B. Weinstein re: filing of motions and briefs by Defendants. (Grossman, Theodore) (Entered: 06/09/2006)

06/09/2006 878 MOTION to Vacate the Court’s previous order denying partial summ judgment under Fed. R. Civ. P. 60(b)(2) and to enter partial summ judgment, or in the alternative, a motion in limine; proposed order and certificate of service for this Motion and Memorandum in support by all plaintiffs. (McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 879 MOTION in Limine Plaintiffs’ Daubert Motion to Exclude Expert Testimony of Defendants’ Company Scientists by all plaintiffs. (Attachments: # 1 Supplement Memorandum in Support of Motion# 2 Exhibit Declaration of Andrea Hertzfeld# 3 Exhibit Exhibit 1# 4 Exhibit Exhibit 2# 5 Exhibit Exhibit 3# 6 Exhibit Exhibit 4# 7 Exhibit Exhibit 5# 8 Exhibit Exhibit 6# 9 Exhibit Exhibit 7# 10 Exhibit Exhibit 8# 11 Exhibit Exhibit 9# 12 Exhibit Exhibit 10# 13 Exhibit Exhibit 11# 14 Exhibit Exhibit 12# 15 Exhibit Exhibit 13# 16 Exhibit Exhibit 14# 17 Exhibit Exhibit 15# 18 Exhibit Exhibit 16# 19 Exhibit Exhibit 17# 20 Exhibit Exhibit 18# 21 Exhibit Exhibit 19# 22 Exhibit Exhibit 20# 23 Exhibit Exhibit 21# 24 Exhibit Exhibit 22# 25 Exhibit Exhibit 23# 26 Exhibit Exhibit 24# 27 Exhibit Exhibit 25# 28 Exhibit Exhibit 26# 29 Exhibit Exhibit 27# 30 Exhibit Exhibit 28# 31 Exhibit Exhibit 29# 32 Exhibit Exhibit 30)(Hertzfeld, Andrea) (Entered: 06/09/2006)

06/09/2006 880 MOTION to Vacate memorandum in support of pltfs’ motion for relief from the Court’s order denying partial summary judgment on defs’ FTC Defense by all plaintiffs. (Attachments: # 1 Exhibit Declaration of Brent Landau in support# 2 Exhibit no. 1# 3 Exhibit no. 2# 4 # 5)(McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 881 MOTION in Limine to Exclude the Testimony of Dr. Blaine Nye by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company. (Attachments: # 1 Memorandum in Support# 2 Declaration of Robert A. McCarter# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Certificate of Service)(Major, Alexander) (Entered: 06/09/2006)

06/09/2006 882 NOTICE by Liggett Group Inc. Notice of Joinder by Defendant Ligget Group LLC in the Non-Liggett Defendants’ Supplemental Motions for Summary Judgment (Fischer, Julie) (Entered: 06/09/2006)

06/09/2006 883 MOTION in Limine to Exclude the Testimony of Plaintiffs’ Expert, Robert N. Proctor, Ph. D. by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Attachments: # 1 Affidavit of Elizabeth Prickett-Morgan# 2 Exhibit Exhibit 1 of 20# 3 Exhibit Exhibit 2 of 20# 4 Exhibit Exhibit 3 of 20# 5 Exhibit Exhibit 4 of 20# 6 Exhibit Exhibit 5 of 20# 7 Exhibit Exhibit 6 of 20# 8 Exhibit Exhibit 7 of 20# 9 Exhibit Exhibit 8 of 20# 10 Exhibit Exhibit 9 of 20# 11 Exhibit Exhibit 10 of 20# 12 Exhibit Exhibit 11 of 20# 13 Exhibit Exhibit 12 to 20# 14 Exhibit Exhibit 13 of 20# 15 Exhibit Exhibit 14 of 20# 16 Exhibit Exhibit 15 of 20# 17 Exhibit Exhibit 16 of 20# 18 Exhibit Exhibit 17 of 20# 19 Exhibit Exhibit 18 of 20# 20 Exhibit Exhibit 19 of 20# 21 Exhibit Exhibit 20 of 20)(Saxl, Stephen) (Entered: 06/09/2006)

06/09/2006 884 MOTION for Summary Judgment on Statute of Limitations Grounds by R.J. Reynolds Tobacco Company. Responses due by 7/14/2006 (Attachments: # 1 Memorandum of Law# 2 Statement of Undisputed Material Facts# 3 Affidavit of Todd R. Geremia# 4 Exhibit A# 5 Exhibit B# 6 Exhibit C pt.1# 7 Exhibit C pt.2# 8 Exhibit D# 9 Exhibit E# 10 Exhibit F# 11 Exhibit G# 12 Exhibit H# 13 Exhibit I# 14 Exhibit J# 15 Exhibit K# 16 Exhibit L# 17 Exhibit M# 18 Exhibit N)(Geremia, Todd) (Entered: 06/09/2006)

06/09/2006 885 MOTION in Limine to Exclude the Testimony of Dr. Paul Slovic by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Attachments: # 1 Memorandum in Support# 2 Declaration of Robert A. McCarter# 3 Exhibit 1# 4 Exhibit 2# 5 Certificate of Service)(Major, Alexander) (Entered: 06/09/2006)

06/09/2006 886 MEMORANDUM in Support re 883 MOTION in Limine to Exclude the Testimony of Plaintiffs’ Expert, Robert N. Proctor, Ph. D. by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Saxl, Stephen) (Entered: 06/09/2006)

06/09/2006 887 MOTION in Limine to Exclude the Testimony of Dr. John C Beyer by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Attachments: # 1 Memorandum in Support# 2 Declaration of Robert A. McCarter# 3 Exhibit 1# 4 Exhibit 2a# 5 Exhibit 2b# 6 Exhibit 2c# 7 Exhibit 3# 8 Exhibit 4# 9 Exhibit 5# 10 Exhibit 6# 11 Exhibit 7# 12 Exhibit 8a# 13 Exhibit 8b# 14 Exhibit 9# 15 Exhibit 10# 16 Exhibit 11# 17 Exhibit 12# 18 Certificate of Service)(Major, Alexander) Modified on 6/9/2006 (Talbott, Thomas). (Entered: 06/09/2006)

06/09/2006 888 Notice of MOTION in Limine to Exclude the Testimony of Plaintiffs’ Expert, Marvin E. Goldberg, Ph. D. by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Attachments: # 1 Declaration of Elizabeth Prickett-Morgan# 2 Exhibit 1 of 15# 3 Exhibit 2 of 15# 4 Exhibit 3 of 15# 5 Exhibit 4 of 15# 6 Exhibit 5 of 15# 7 Exhibit 6 of 15# 8 Exhibit 7 of 15# 9 Exhibit 8 of 15# 10 Exhibit 9 of 15# 11 Exhibit 10 of 15# 12 Exhibit 11 of 15# 13 Exhibit 12 of 15# 14 Exhibit 13 of 15# 15 Exhibit 14 of 15# 16 Exhibit 15 of 15)(Saxl, Stephen) (Entered: 06/09/2006)

06/09/2006 889 MEMORANDUM in Support re 888 Notice of MOTION in Limine to Exclude the Testimony of Plaintiffs’ Expert, Marvin E. Goldberg, Ph. D. by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Saxl, Stephen) (Entered: 06/09/2006)

06/09/2006 890 MOTION in Limine To Exclude The Testimony And Report Of Plaintiffs’ Expert Dr. Joseph E. Stiglitz by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Attachments: # 1 Affidavit of Elizabeth Prickett-Morgan# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I)(Mansfield, Alan) (Entered: 06/09/2006)

06/09/2006 891 MOTION for Summary Judgment On Plaintiffs’ Claims On Or After November 2002 by Philip Morris USA, Inc.. Responses due by 7/14/2006 (Attachments: # 1 Rule 56.1 Statement# 2 Memorandum in Support# 3 Declaration of Megan M. McClain# 4 McClain Exhibit A# 5 McClain Exhibit B# 6 McClain Exhibit C# 7 Certificate of Service)(Major, Alexander) (Entered: 06/09/2006)

06/09/2006 892 MOTION in Limine To Exclude The Testimony of Dr. John R. Hauser by R.J. Reynolds Tobacco Company. (Attachments: # 1 Memorandum of Law# 2 Affidavit of Arthur J. Margulies# 3 Exhibit 1 pt.1# 4 Exhibit 1 pt.2# 5 Exhibit 1 pt.3# 6 Exhibit 1 pt.4# 7 Exhibit 1 pt.5# 8 Exhibit 2# 9 Exhibit 3# 10 Exhibit 4# 11 Exhibit 5# 12 Exhibit 6# 13 Exhibit 7# 14 Exhibit 8# 15 Exhibit 9# 16 Exhibit 10# 17 Exhibit 11# 18 Exhibit 12# 19 Exhibit 13# 20 Exhibit 14# 21 Exhibit 15# 22 Exhibit 16# 23 Exhibit 17# 24 Exhibit 18# 25 Exhibit 19# 26 Exhibit 20# 27 Exhibit 21# 28 Exhibit 22# 29 Exhibit 23# 30 Exhibit 24# 31 Exhibit 25# 32 Exhibit 26# 33 Exhibit 27# 34 Exhibit 28# 35 Exhibit 29# 36 Exhibit 30# 37 Exhibit 31# 38 Exhibit 32# 39 Exhibit 33# 40 Exhibit 34# 41 Exhibit 35# 42 Exhibit 36)(Geremia, Todd) (Entered: 06/09/2006)

06/09/2006 893 MEMORANDUM in Support re 890 MOTION in Limine To Exclude The Testimony And Report Of Plaintiffs’ Expert Dr. Joseph E. Stiglitz by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Mansfield, Alan) (Entered: 06/09/2006)

06/09/2006 894 MOTION in Limine To Exclude The Testimony of Dr. Jeffrey E. Harris by R.J. Reynolds Tobacco Company. (Attachments: # 1 Memorandum of Law# 2 Affidavit of Kate Bushman# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C# 6 Exhibit D# 7 Exhibit E# 8 Exhibit F# 9 Exhibit G# 10 Exhibit H# 11 Exhibit I# 12 Exhibit J# 13 Exhibit K# 14 Exhibit L# 15 Exhibit M# 16 Exhibit N# 17 Exhibit O# 18 Exhibit P# 19 Exhibit Q# 20 Exhibit R)(Geremia, Todd) (Entered: 06/09/2006)

06/09/2006 895 MEMORANDUM in Support re 455 Notice of MOTION for Partial Summary Judgment for Causation, Injury and Damages (Supplemental Memorandum) by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company. (Attachments: # 1 Rule 56.1 Statement# 2 Declaration of Robert A. McCarter# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Exhibit 5# 8 Exhibit 6# 9 Exhibit 7# 10 Exhibit 8# 11 Exhibit 9# 12 Exhibit 10# 13 Exhibit 11# 14 Exhibit 12# 15 Exhibit 13# 16 Exhibit 14# 17 Exhibit 15# 18 Exhibit 16# 19 Exhibit 17# 20 Exhibit 18# 21 Certificate of Service)(Richardson, Ryan) (Entered: 06/09/2006)

06/09/2006 896 MOTION in Limine To Exclude The Testimony of Dr. J. Michael Dennis (memorandum of law in support filed under seal) by R.J. Reynolds Tobacco Company. (Attachments: # 1 Affidavit of Kate Bushman (Exhibit I filed under seal)# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N)(Geremia, Todd) (Entered: 06/09/2006)

06/09/2006 897 MOTION in Limine to Exclude Testimony Outside the Expertise of William Wecker by all plaintiffs. (Attachments: # 1 Text of Proposed Order # 2 Supplement Memorandum in support of Motion to exclude testimony)(McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 898 MOTION in Limine Declaration of Benjamin Brown in support and exs. 1-4 of 8 exhibits by all plaintiffs. (Attachments: # 1 Exhibit 1 part 1# 2 Exhibit 1 part 2# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4)(McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 899 MOTION in Limine Exhibit 5 attaching Exs. 6-8 of 8 exhibits to Declaration of Ben Brown in support of Motion to Exclude Testimony Outside the Expertise of Wm. Wecker by all plaintiffs. (Attachments: # 1 Exhibit 6# 2 # 3 Exhibit 8 part 1# 4 Exhibit 8 part 2)(McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 900 MOTION in Limine To Exclude The Testimony Of Katherine Kinsella by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Attachments: # 1 Affidavit of Alan Mansfield# 2 Exhibit A# 3 Exhibit B1# 4 Exhibit B2# 5 Exhibit C1# 6 Exhibit C2# 7 Exhibit C3# 8 Exhibit D# 9 Exhibit E# 10 Exhibit F# 11 Exhibit G# 12 Exhibit H# 13 Exhibit I# 14 Exhibit J# 15 Exhibit K# 16 Exhibit L# 17 Exhibit M# 18 Exhibit N# 19 Exhibit O)(Mansfield, Alan) (Entered: 06/09/2006)

06/09/2006 901 MEMORANDUM in Support re 900 MOTION in Limine To Exclude The Testimony Of Katherine Kinsella by Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation. (Mansfield, Alan) (Entered: 06/09/2006)

06/09/2006 902 MOTION to Certify Class Plaintiffs’ Supplemental Brief in Support of Plaintiffs’ Motion for Class Certification and Appointment of Class Representatives and Co-Lead Counsel with attached Certificate of Service by all plaintiffs. (Attachments: # 1)(Pizzirusso, James) (Entered: 06/09/2006)

06/09/2006 903 Supplemental MOTION to Certify Class Declaration of Brent Landau in support of class certif and appointment of class representatives and co-lead counsel attaching exhibits 1-10 of 37 exhibits by all plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7 part 1# 8 Exhibit 7 part 2# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10)(McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 904 Supplemental MOTION to Certify Class exhibit 11 with exhibits 12 - 20 of 37 exhibits attached to Declaration of Brent Landau in support of Suppl motion for class certification and appointment of class reps and co-lead counsel by all plaintiffs. (Attachments: # 1 Exhibit 12# 2 Exhibit 13# 3 Exhibit 14# 4 Exhibit 15# 5 Exhibit 16# 6 Exhibit 17# 7 Exhibit 18# 8 Exhibit 19# 9 Exhibit 20 part 1# 10 Exhibit 20 part 2)(McNamara, Douglas) (Entered: 06/09/2006)

06/09/2006 905 MOTION to Certify Class Exhibits 21 through 37 of 37 Exhibits to Plaintiffs’ Supplemental Brief in Support of Plaintiffs’ Motion for Class Certification and Appointment of Class Representatives and Co-Lead Counsel by all plaintiffs. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16)(Pizzirusso, James) (Entered: 06/09/2006)

Leave a Reply

The primary purpose of this site is to provide information in a timely manner. Postings should be informative. The usual rules apply: No libel, no profanity, no personal abuse, keep it on topic, and short.

If you are scheduled as a court witness, CHECK with your lawyer before posting anything here!