Pooshs v. Philip Morris USA, Inc.

• Citation: 904 F.Supp.2d 1009
• Decision Date: 22 October 2012
• Docket Number: No. C 04–1221 PJH.,C 04–1221 PJH.
• Court: U.S. District Court — Eastern District of California
• Parties: Nikki POOSHS, Plaintiff, v. PHILIP MORRIS USA, INC., et al., Defendants.

904 F.Supp.2d 1009

Nikki POOSHS, Plaintiff,

v.PHILIP MORRIS USA, INC., et al., Defendants.

No. C 04–1221 PJH.

United States District Court, N.D. California.

Oct. 22, 2012.

David R. Donadio, Lloyd F. Leroy, Jason Michael Rose, Phyra May McCandless, James Patrick Nevin, Jr., Brayton Purcell LLP, Novato, CA, David W. Fermino, Law Offices of David W. Fermino, San Francisco, CA, for Plaintiff.

Lucy E. Mason, Andrew L. Chang, Jennifer L. Brown, Randall D. Haimovici, Michael Kevin Underhill, Shook, Hardy & Bacon L.L.P., Peter Nels Larson, Jacqueline Matusko Vallette, Jones Day, Tracy M. Clements, Stanley Gracey Roman, Krieg Keller Sloan Reilley & Roman, San Francisco, CA, Kenneth James Reilly, Shook Hardy and Bacon, L.L.P., Miami, FL, Robert McCarter, Shook, Hardy & Bacon L.L.P., Washington, DC, Stanley D. Davis, Shook Hardy and Bacon LLP, Kansas City, MO, William E. Latham, Womble, Carlyle, Sandridge & Rice, Winston–Salem, NC, Paul Grant Crist, Jones Day, Cleveland, OH, Steven Nicholas Geise, Jones Day, San Diego, CA, Bruce M. Ginsberg, David & Gilbert LLP, New York, NY, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO EXCLUDE EXPERT TESTIMONY; ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IT IN PART

PHYLLIS J. HAMILTON, District Judge.

Defendants' motion to exclude expert testimony and motion for summary judgment came on for hearing on August 8, 2012. Plaintiff Nikki Pooshs appeared by her counsel John Wallace, Jason M. Rose, and Phyra McCandless; defendant Philip Morris USA, Inc. (“Philip Morris”) appeared by its counsel Stanley D. Davis and Jennifer L. Brown; defendant R.J. Reynolds Tobacco Company (“RJR”) appeared by its counsel Peter Larson; and defendant Hill and Knowlton Strategies, LLC (“H & K”—formerly Hill and Knowlton, Inc.) appeared by its counsel Stan G. Roman. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion to exclude expert testimony, and GRANTS the motion for summary judgment in part and DENIES it in part.

BACKGROUND

This is a product liability case, in which plaintiff Nikki Pooshs alleges that she developed lung cancer as a result of smoking cigarettes produced by cigarette manufacturers including defendants Philip Morris and RJR (“the manufacturer defendants”), the sale of which was publicly promoted and advertised by H & K. Plaintiff began smoking in 1953 when she was in junior high school, and finally quit smoking in 1991. She was diagnosed with chronic obstructive pulmonary disease in 1989, and again in 1999; with periodontal disease in 1990; and with lung cancer in January 2003. She filed the present lawsuit in January 2004.

In the complaint, plaintiff asserts ten causes of action—negligence, against the manufacturers and H & K; products liability (defective design), against the manufacturers; misrepresentation, against the manufacturers and H & K; fraud and deceit (intentional misrepresentation), against the manufacturers and H & K; fraud and deceit (concealment), against the manufacturers and H & K; fraud and deceit (false promise), against the manufacturers and H & K; fraud and deceit (negligent misrepresentation), against the manufacturers and H & K; concert of action (conspiracy), against the manufacturers and H & K; and pre–1969 failure to warn, and off-label failure to warn, against the manufacturers.

Defendants now seek an order pursuant to Federal Rule of Evidence 702 excluding testimony of plaintiff's cigarette-design experts, and an order pursuant to Federal Rule of Civil Procedure 56 granting summary judgment on plaintiff's claims.

DISCUSSION

A. Motion to Exclude Expert Testimony

1. Legal Standard

A witness who has been qualified as an expert by knowledge, skill, experience, training, or education may give an opinion on scientific, technical, or otherwise specialized topics if (1) the expert's scientific, technical, or other special knowledge will help the trier of fact understand the evidence or determine a fact in issue, (2) the testimony is based upon sufficient facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The proponent of expert testimony bears the burden of establishing by a preponderance of the evidence that the admissibility requirements are met. SeeFed.R.Evid. 702, Advisory Committee Notes. Although there is a presumption of admissibility, Daubert, 509 U.S. at 588, 113 S.Ct. 2786, the trial court is obliged to act as a “gatekeeper” with regard to the admission of expert scientific testimony under Rule 702. Id. at 597, 113 S.Ct. 2786;see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

Thus, Daubert requires a two-part analysis. First, the court must determine whether an expert's testimony reflects “scientific knowledge,” whether the findings are “derived by the scientific method,” and whether the work product is “good science”—that is, whether the testimony is reliable and trustworthy. Daubert, 509 U.S. at 590 & n. 9, 593, 113 S.Ct. 2786. Second, the court must determine whether the testimony is “relevant to the task at hand.” Id. at 597, 113 S.Ct. 2786.

Scientific evidence is reliable if it is based on an assertion that is grounded in methods of science—the focus is on principles and methodology, not on conclusions. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 841 (9th Cir.2001). In determining whether an expert's reasoning or methodology is scientifically valid, the district court can consider “many factors,” including (1) whether a scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling the techniques operation; and (4) whether the technique is generally accepted. Daubert, 509 U.S. at 593–95, 113 S.Ct. 2786;Fed.R.Evid. 702, 2000 Advisory Committee Notes.

Nevertheless, depending on the type of expert testimony offered, these factors may not be appropriate to assess reliability. Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. Other factors that might be considered include whether an expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, see General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); or whether an expert has adequately accounted for obvious alternative explanations, seeClaar v. Burlington Northern R. Co., 29 F.3d 499, 502 (9th Cir.1994).

The trial court should be also mindful that reliability is not determined based on the “correctness of the expert's conclusions but the soundness of his methodology.” Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.2007) (quotation omitted). The trial court should ensure the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167.

Rule 702's second prong concern's relevancy, or “fit.” See Daubert, 509 U.S. at 591, 113 S.Ct. 2786. Expert opinion testimony is relevant if the knowledge underlying it has a “valid ... connection to the pertinent inquiry,” and it is reliable if the knowledge underlying it “has a reliable basis in the knowledge and experience of [the relevant] discipline.” Id. at 592, 113 S.Ct. 2786;Kumho Tire, 526 U.S. at 149, 119 S.Ct. 1167.

2. Defendants' motion

Defendants now seek an order excluding the cigarette-design testimony of plaintiff's experts Dr. K. Michael Cummings and Dr. William A. Farone, on the ground that neither is an expert in cigarette design. This testimony is relevant to plaintiff's second cause of action for products liability, which alleges “defective design.”

Both Dr. Cummings and Dr. Farone have testified in a number of cases brought by smokers and ex-smokers against cigarette manufacturers, and both appear to be qualified to testify as experts on certain subjects. However, the question here is whether their testimony regarding cigarette design is reliable and trustworthy, and relevant to the case.

a. Motion to exclude testimony of Dr. Cummings

Dr. K. Michael Cummings is an epidemiologist with a focus on public health. Broadly speaking, epidemiology is the study of the incidence, distribution, and control of disease in a population. Dr. Cummings has an undergraduate degree in health education, and graduate degrees (including a Ph.D.) in health education and health behavior.

Dr. Cummings is currently a Professor in the Department of Psychiatry and Behavioral Sciences and a co-leader of the Tobacco Research Program in the Hollings Cancer Center at the Medical University of South Carolina in Charleston, South Carolina, where he has worked since October 2011. Prior to that, he worked for thirty years at the Roswell Park Cancer Institute in Buffalo, New York, where he was a senior research scientist and the Chairman of the Department of Human Behavior. During the same period, he also held the position of Professor in the Department of Social and Preventive Medicine at the State University of New York at Buffalo where he taught graduate-level courses.

In connection with the present case, Dr. Cummings submitted a report in which he provides opinions “relating to tobacco epidemiology, tobacco use behaviors, consumer risk perceptions, tobacco product marketing, addiction and tobacco documents, specifically the industry conspiracy to belittle the known health risks and addictive nature of cigarette smoking.” To this end, he provides opinions regarding the following: whether plaintiff was addicted to cigarettes; the marketing of cigarette brands smoked by plaintiff;...