Marsee v. United States Tobacco Co.

• Decision Date: 25 June 1986
• Docket Number: No. CIV-84-2777-R.,CIV-84-2777-R.
• Citation: 639 F. Supp. 466
• Parties: Betty Ann MARSEE, Administratrix of the Estate of Marvin Sean Marsee, Deceased, Plaintiff, v. UNITED STATES TOBACCO COMPANY, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

639 F. Supp. 466

Betty Ann MARSEE, Administratrix of the Estate of Marvin Sean Marsee, Deceased, Plaintiff, v. UNITED STATES TOBACCO COMPANY, Defendant.

No. CIV-84-2777-R.

United States District Court, W.D. Oklahoma.

June 25, 1986.

COPYRIGHT MATERIAL OMITTED

Dania Deschamps-Braly, Braly & Braly, Ada, Okl., Mack Murate Braly, Mack Murate Braly & Associates, Tulsa, Okl., for plaintiff.

Andy Coats, Crowe & Dunlevy, Oklahoma City, Okl., Timothy M. Finnegan, New York City, Alston Jennings, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

DAVID L. RUSSELL, District Judge.

Defendant, United States Tobacco Company, filed a Motion in Limine prior to trial seeking to exclude certain evidence from trial in this suit. The Court orally ruled on the motion prior to trial and now enters this post-trial Order to enlarge upon such ruling.

I. Louis Kohley Testimony

Plaintiff sought admission of testimony of another victim of oral cancer, Louis Kohley, who used defendant's snuff products. Plaintiff offered this testimony to demonstrate that defendant's products caused Sean Marsee's cancer. Plaintiff also offered this testimony on the issues of the effect of defendant's advertising on Sean Marsee and of the pain and suffering of Marsee. Defendant urged exclusion of such "similar occurrence" testimony on the basis that such testimony had little probative value, was unfairly prejudicial, and would have created a "trial within a trial" as to the causation of Kohley's oral cancer. Upon review, the Court agreed with defendant.

The parties did not dispute that there are new cases of oral cancer each year involving both tobacco users and non-users. Clearly, the causation of oral cancer is a complicated issue involving numerous factors. The fact that one other individual using smokeless tobacco also developed oral cancer similar to that suffered by Sean Marsee constitutes very little, if any, proof that smokeless tobacco caused Marsee's cancer. Cf. In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, 1253 (E.D.N.Y.1985) (excluding expert testimony as to link between Agent Orange and Hodgkin's Disease when opinion was based upon review of only seventeen cases).

Likewise, the Court found that the Kohley testimony had little probative value on the issues of pain and suffering and of the effect of advertising. The perception of pain and the effectiveness of advertising are inherently subjective matters which may vary substantially from person to person. The intensity of the pain and suffering perceived by Louis Kohley and the impact of certain advertising on Kohley provides little, if any, proof as to the pain and suffering of Sean Marsee or the impact of the same advertising on Marsee.

Balanced against the low probative value of the Kohley testimony was the probable unfair prejudice of the testimony to defendant. The grim physical condition of Kohley, coupled with the similarities of the Kohley case to Marsee's, might well have led the jury to give the Kohley testimony greater weight than it was due on the issue of causation of oral cancer. Under these circumstances, in balancing the probative value against the potential prejudice and misleading of the jury, the Court in its discretion excluded the Kohley testimony from plaintiff's case-in-chief. Fed.R. Evid. 403; see also Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 934 (10th Cir.1984), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984).

II. Asian Studies

Defendant sought exclusion of certain studies regarding the effects of smokeless tobacco use on Asian populations. At issue were certain epidemiological studies conducted among populations in Asia directed toward discovering and defining the link, if any, between the use of smokeless tobacco and oral cancer. Defendant argued that the studies were irrelevant and would have been unfairly prejudicial and misleading in this litigation. Defendant based this argument on the existence of distinctions between the substances chewed or dipped in Asia and defendant's products and between the Asian and American populations.

The Court viewed these distinctions as relating to the weight rather than the relevance and admissibility of the studies. Without dispute, the studies involved the chewing or dipping of substances which contained smokeless tobacco similar to defendant's products. Further, it appeared from the deposition testimony of the expert witness sponsoring the studies, Dr. Prakash Gupta, that the differences noted by defendant were taken into account in the conclusions reached in the studies. Under these circumstances, the Court found that these studies had significant probative value precluding exclusion under Fed.R.Evid. 402. Cf. Ellis v. International Playtex, Inc., 745 F.2d 292 (4th Cir.1984) (epidemiological studies as to causation of toxic shock syndrome admissible under Rules 803(8)(C) and 403; challenges to methodology and reliability of studies related to weight rather than admissibility); see also Kehm v. Proctor & Gamble Manufacturing Company, 724 F.2d 613 (8th Cir.1983).

Similarly, the Court denied exclusion under Fed.R.Evid. 403. Defendant failed to specify the unfair prejudice likely to result from these studies. The low probative worth of the studies which was cited by defendant is not properly considered as an element of undue prejudice in applying the Rule 403 balancing test. See 22 C. Wright and K. Graham, Federal Practice and Procedure § 5214 (1986 Supp.). Further, defendant had ample opportunity to dispel any confusion of the jury over these studies by articulating the relevant distinctions between Asia and America. In this regard, defendant was afforded the opportunity to cross-examine at great length a principal sponsor of the studies, Dr. Gupta, and such videotaped cross-examination was presented to the jury. Accordingly, Rules 402 and 403 provided no basis for excluding these studies. For these reasons, defendant's Motion in Limine as to the Asian Studies was denied.

III. Evidence Regarding Nitrosamines and Polonium 210

Plaintiff offered evidence regarding the cancer causing effects of nitrosamines and polonium 210. The evidence consisted of animal studies and experiments and expert opinion testimony which indicated that these substances are cancer causing agents in some forty different species of laboratory animals. The expert opinion testimony concluded, based on the animal studies, that these substances are also cancer causing agents in humans.

Defendant contended that this evidence lacked relevance and would only confuse the jury since the evidence only involved tests and experiments on laboratory animals using nitrosamines and polonium 210 in isolation from the other substances in defendant's products. Defendant argued that this evidence provided no proof that its snuff products cause cancer in humans.

There was no dispute that both nitrosamines and polonium 210 are present in defendant's snuff products. Further, defendant conceded that animal studies have accurately and consistently demonstrated that these substances cause cancer in test animals. Finally, the Court found evidence based on experiments with animals particularly valuable and important in this litigation since such experiments with humans are impossible. Under all these circumstances, the Court found this evidence probative on the issue of causation. Cf. Ramseyer v. General Motors Corporation, 417 F.2d 859 (8th Cir.1969) (experimental evidence based on testing of automobile gears admitted despite dissimilarities from actual conditions; differences related to weight rather than admissibility of evidence); see also Kehm, 724 F.2d at 624 (in-court experiment admitted despite differences from actual conditions which went to the weight of the evidence).

In addition, the Court did not find that such evidence was likely to mislead the jury. Once again, defendant had ample opportunity to illustrate to the jury the difficulties in applying this evidence as to nitrosamines and polonium 210 in determining the effect of defendant's snuff products on humans. In this regard, the defendant had the opportunity at trial to cross-examine the experts who actually conducted the studies at issue. The potential for this evidence to confuse or mislead the jury did not outweigh the probative value of the evidence. Defendant's objection to the admissibility of this evidence under Fed.R.Evid. 402 and 403 was thus overruled.

IV. Reports Regarding Causation of Cancer

Defendant objected to admission of certain reports regarding the causation of cancer. In particular, defendant opposed admission of the Report of the International Agency for Research on Cancer (IARC), the Report of the Consensus Development Conference of the National Institute of Health (CDC), and the Report of the Surgeon General's Advisory Committee on the Health Consequences of Using Smokeless Tobacco. Defendant argued that these reports constituted inadmissible hearsay. Plaintiff sought admission of these reports under the governmental report and catch-all exceptions to the hearsay rule, Fed.R. Evid. 803(8)(C), 803(24), and 804(b)(5).

Upon review, the Court found the Report of the Surgeon General's Advisory Committee to be an authoritative, exhaustive study by a public agency pursuant to law. Accordingly, the Court admitted this report into evidence under the public agency report exception to the hearsay rule, Fed.R.Evid. 803(8)(C).

However, the Court was not persuaded that the IARC and CDC Reports qualify for this exception. The reports represent...