822 F.2d 335 (3rd Cir. 1987), 87-5014, Cipollone v. Liggett Group, Inc.

Docket Nº:87-5014.
Citation:822 F.2d 335
Party Name:Antonio CIPOLLONE, Individually, and as the Executor of the Estate of Rose D. Cipollone, Plaintiff-Respondent, v. LIGGETT GROUP, INC., a Delaware Corporation, Philip Morris Incorporated, a Virginia Corporation, and Loew's Theatres, Inc., a New York Corporation, Defendants-Petitioners. Susan HAINES, as Administratrix ad Prosequendum and Executrix of
Case Date:June 08, 1987
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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822 F.2d 335 (3rd Cir. 1987)

Antonio CIPOLLONE, Individually, and as the Executor of the

Estate of Rose D. Cipollone, Plaintiff-Respondent,

v.

LIGGETT GROUP, INC., a Delaware Corporation, Philip Morris

Incorporated, a Virginia Corporation, and Loew's

Theatres, Inc., a New York Corporation,

Defendants-Petitioners.

Susan HAINES, as Administratrix ad Prosequendum and

Executrix of the Estate of Peter F. Rossi,

Plaintiff-Respondent,

v.

LIGGETT GROUP, INC., a Delaware Corporation, Loew's

Theatres, Inc., a New York Corporation, R.J. Reynolds

Tobacco Co., a New Jersey Corporation, Philip Morris

Incorporated, a Virginia Corporation, and the Tobacco

Institute, Defendants- Petitioners.

LIGGETT GROUP, INC., a Delaware Corporation, Philip Morris

Incorporated, a Virginia Corporation, R.J. Reynolds Tobacco

Co., a New Jersey Corporation, the Tobacco Institute, and

Loew's Theatres, Inc., a New York Corporation, Petitioners,

v.

Honorable H. Lee SAROKIN, United States District Judge for

the District of New Jersey, Nominal Respondent.

No. 87-5014.

United States Court of Appeals, Third Circuit

June 8, 1987

        Argued March 2, 1987.

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        Raymond F. Drozdowski, Brown & Connery, Westmont, N.J. (Shook, Hardy & Bacon, Kansas City, Mo., Murray Bring (argued), Arnold & Porter, Washington, D.C., of counsel), for Philip Morris Inc.

        Alan S. Naar, Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Iselin, N.J. (Donald J. Cohn (argued), Webster & Sheffield, New York City, of counsel), for Liggett Group, Inc.

        David K. Hardy, Shook, Hardy & Bacon, Kansas City, Mo., for Loew's Theatres, Inc.

        Peter N. Perretti, Jr., Riker, Danzig, Scherer, Hyland & Perretti, Morristown, N.J. (Jones, Day, Reavis & Pogue, Cleveland, Ohio, of counsel), for R.J. Reynolds Tobacco Co.

        John T. Dolan, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J. (Covington & Burling, Washington, D.C., of counsel), for The Tobacco Institute.

        Marc Z. Edell (Argued), Budd Larner Gross Picillo Rosenbaum Greenberg & Sade, P.C., Short Hills, N.J., for Cipollone and Haines.

        Before GIBBONS, Chief Judge, and SEITZ and GARTH, Circuit Judges.

       OPINION

        GIBBONS, Chief Judge:

        The defendants in several product liability actions pending in the district court petition here pursuant to 28 U.S.C. Sec. 1651 (1982) for a writ of mandamus (1) directing the district judge to vacate an order modifying a discovery order previously entered by a United States magistrate, and (2) reassigning the cases to another judge. Petitioners contend that the challenged order is inconsistent with the mandate of this court in Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.1986), and is otherwise inconsistent with law. They contend, as well, that the district court judge should be removed from the case because of bias against the defendants' industry. We deny the petition for mandamus and for reassignment.

       I.

Prior Proceedings

        The Cipollone case is one of eight actions filed on behalf of cigarette smokers in the state and federal courts of New Jersey by the same law firm. There are presently over 100 such cases pending in other jurisdictions. Plaintiffs in all of them are cigarette smokers or their personal representatives who have filed product liability suits asserting negligence, strict liability and intentional wrongdoing by tobacco companies. Claiming that their lung cancer or other smoking-related disease resulted from smoking defendants' cigarettes, the plaintiffs in those actions allege that the defendants failed to inform consumers adequately of the health risks in smoking and that when health warnings did appear on their products, they were effectively negated by their advertising practices.

        This case began in the United States District Court for the District of New Jersey, when Rose Cipollone and her husband, Antonio, filed a complaint on August 1, 1983 against Liggett Group, Inc., Philip Morris, Inc., and Loew's Theaters, Inc., all of which manufacture cigarettes. Cipollone alleged that as a result of smoking defendants' cigarettes for almost forty years, she developed bronchogenic carcinoma and sustained other personal injuries. Cipollone sought compensation for her injuries on theories of strict liability and negligence and her husband sought compensation for loss of consortium. Cipollone's primary contentions were that the defendants had withheld scientific evidence from

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the public and had misrepresented the health hazards of smoking.

        A short time later, Susan Haines, administratrix ad prosequendum and executrix of the Estate of Peter F. Rossi brought an almost identical action in the same court against the same defendants as well as R.J. Reynolds Tobacco Co. and the Tobacco Institute, Inc. Haines had the same counsel as Cipollone and sought compensation for Rossi's pain and suffering and compensation for his death, which allegedly resulted from his smoking defendants' cigarettes.

        Pursuant to 28 U.S.C. Sec. 636 (1982 & Supp. III 1985), the district court ordered discovery in both cases under the supervision of then Magistrate Robert E. Cowen. In the fall of 1983, Cipollone made initial discovery requests of the defendants. The defendants responded by filing motions to strike, claiming that the information sought was irrelevant and that the requests were burdensome and harassing. Magistrate Cowen heard oral argument on those motions on March 22, 1984. A discovery order was issued on May 2, 1984.

        Defendant's counsel then approached Cipollone's counsel about a confidentiality order. Counsel agreed temporarily not to disseminate any documents "until [they] had an opportunity to attempt to agree upon a Protective Order regarding the documents or, if that [was] not possible [defendants were] to make request for such a Protective Order to the Court." Letters between counsel dated May 3 and 4, 1984. That agreement was in force until the entry of Magistrate Cowen's protective order dated March 25, 1985. In the interim, defendants produced thousands of documents and many corporate representatives were deposed. Additionally, discovery of non-parties, including the Tobacco Institute, was conducted. Cipollone's counsel and the Tobacco Institute's counsel agreed that if Cipollone wished to disclose confidential material received as a result of that discovery, ten (10) days notice would be given to allow the Tobacco Institute to object. See Letter Agreement dated August 2, 1984. Accordingly, on October 5, 1984, Cipollone's counsel notified the Tobacco Institute of the intention to disseminate certain confidential documents. See Letter from Marc Z. Edell dated October 5, 1984. Because the Tobacco Institute objected, however, the information was not disseminated.

        Meanwhile, negotiations regarding the terms of a protective order broke down because the parties could not agree on Cipollone's counsel's right to use the documents obtained in this discovery in other cases, and because of the defendants' alleged misuse of the "confidential" stamp on documents produced during discovery. On March 25, 1985 Magistrate Cowen entered a protective order for the stated purpose of streamlining the litigation. No specific findings of good cause for the issuance of the protective order were made.

        On March 25, 1985, Cipollone appealed the magistrate's order and the district court, on July 17, 1985, vacated that order and entered a modified order. See Cipollone v. Liggett Group, Inc., 106 F.R.D. 573 (D.N.J.1985). Defendants then petitioned this court for a writ of mandamus, which was granted. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 (3d Cir.1986). Granting the writ, we held that the district court had committed two errors of law: 1) it had applied the wrong standard for issuance of a protective order--first amendment considerations--rather than the less strict "good cause" standard under Fed.R.Civ.P. 26(c); and 2) it had exercised plenary review over the magistrate's order instead of the review specified in 28 U.S.C. Sec. 636. See Cipollone, 785 F.2d at 1123.

        In response to our judgment, Judge Sarokin reconsidered the protective order. He noted that the magistrate had made no specific findings regarding good cause. Judge Sarokin held that the magistrate's failure to apply a good cause standard was a clear error. See Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 93 (D.N.J. 1986). After considering the defendants' arguments for finding good cause, the district court rejected them. With regard to the magistrate's determination of an "umbrella order," the district court upheld "the aspect of the magistrate's order that permits defendants to make an initial designation

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of confidentiality, subject to their determination that such designation is warranted in good faith, and subject to plaintiff's later opportunity to challenge such designation and request sanctions pursuant to Fed.R.Civ.P. 26(g)." Cipollone, 113 F.R.D. at 94. Consequently, on December 18, 1986, the district court entered a new modified protective order and issued a supplemental opinion. See Cipollone v. Liggett Group, Inc., Civ. No. 83-2864 (D.N.J. Dec. 18, 1986). The magistrate's protective order remained unchanged except that the district court limited the scope of the order's protection to "confidential" documents and permitted the use of documents in other related actions. 1

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        Defendants then petitioned again for mandamus, claiming that the district court's order on remand is contrary to law and contrary to this court's instructions.

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In addition, they request reassignment of this case to another judge, suggesting bias against the defendants on the part...

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