Simon v. Philip Morris Incorporated, No. 99 CV 1988 (E.D.N.Y. 11/17/2000)
| Decision Date | 17 November 2000 |
| Docket Number | 98-CV-0675.,98-CV-1492.,00-CV-2340.,99-CV-7392.,00-CV-4632.,00-CV-5332.,00-CV-4442.,99-CV-6 142.,No. 99 CV 1988.,Related to 97-CV-7658.,98-CV-3287.,99 CV 1988. |
| Parties | ELLIS SIMON; TRUDY HUNT; TONY YOUNANY; GEORGE OKO; JACQUELINE HOUNCHELL; SYLVIA WHOL, LARRY ABBOTT; ESTATE OF GEORGE E. PATTERSON; ESTATE OF WILLIE GRIER; ESTATE OF JOYCE FOGLIANO; ESTATE OF VIRGINIA OVERSTREET; ESTATE OF EVELYN SCHRIEBER; and ESTATE OF STANLEY KESSELMAN, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. PHILIP MORRIS INCORPORATED; R.J. REYNOLDS TOBACCO COMPANY; BROWN and WILLIAMSON TOBACCO CORPORATION; B.A.T. INDUSTRIES, P.L.C. THE AMERICAN TOBACCO COMPANY; LORILLARD TOBACCO COMPANY, INC.; and LIGGETT & MYERS, INC., Defendants. (SIMON I) |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Simon I and II: Roda & Nast, P.C. 801 Estelle Dr. Lancaster, PA 17601 By: Dianne M. Nast, Esq.
Wait, Chesley, Waite Schneider, Bayless & Chesley Cincinnati, Ohio By: Stanley Chesley, Esq.
Jonathan W. Cuneo, Esq. 317 Massachusetts Ave., NE Washington, DC 20002
Brown Rudnick Freed & Gesmer One Financial Center Boston, Mass. 02111 By: Gregory T. Carnold, Esq. Wayne F. Dennison, Esq.
Sheller Ludwig & Badley 1528 Walnut St., 3rd Floor Philadelphia, PA 19102 By: Charles Mangan, Esq.
Defendant Brown & Williamson: Sedgwick, Detert, Moran & Arnold, Esq. 59 Maiden Lane, 41st Floor New York. N.Y. 1003-4502 By: Kevin J. Dunne, Esq. Eric M. Kraus, Esq.
Kirkland & Ellis, Esqs. National Asbestos Case Only Citicorp Center 153 East 53rd St., New York. N.Y. 10022-4675 By: Maijorie P. Lindblom, Esq. David Bernick, Esq. Andrew R. McGaan, Esq. Deirdre A. Fox, Esq.
Orrick Herrington & Sutcliffe, LLP 66 Fifth Avenue New York, N.Y. 10103-0001 By: Peter A. Bicks, Esq. James L. Stengel, Esq. Michael T. Stolper, Esq. Goodwin, Proctor & Hoar, LLP Exchange Place Boston, MA 02109-2881 By: U. Gwyn Williams, Esq.
Defendant Lorillard Tobacco Co.: Shook, Hardy & Bacon, LLP One Kansas City Place 1200 Main Street Kansas City, MO. 64105-2118 By: William L Allinder, Esq. Lori Connors McGroder, Esq.
Defendant R. J. Reynolds: Womble Carlyle Sandridge & Rice 200 West Second Street Winston-Salem, NC 27101 By: Ursula M. Henninger, Esq.
Defendant Lorillard Tobacco: Greenberg Traurig, LLP MetLife Building 200 Park Avenue, 15th Floor New York, New York 10166 By: Alan Mansfield, Esq.
Defendant British American Tobacco: Simpson Thacher & Bartlett 425 Lexington Avenue New York, N.Y. 10017 By: Adam I. Stein, Esq.
Defendant Philip Morris: Dechert Price & Rhoads 30 Rockefeller Plaza New York, N.Y. 10112 By: Peter L. Critchell, Esq.
Collier, Shannon, Rill & Scott 3050 K Street, NW Washington, DC 20007 By: John B. Williams, Esq. Thomas W. Mitchell, Esq.
Goodwin, Proctor & Hoar Exchange Place Boston, MA 02109 By: Kenneth J. Parsigian, Esq. Paul E. Namser, Esq.
Arnold & Porter 5555 Twelfth St., NE Washington, DC 20004 By: Murray R. Garnick, Esq. Peter Bleakley, Esq.
Defendant Council for Tobacco Research USA, Inc.: Debevoise & Plimpton, Esqa 875 Third Avenue New York, N.Y. 10022 By: Anne E. Cohen, Esq. Harry Zirlin, Esq. Steven S. Michaels, Esq.
Defendant Hill & Knowlton: Davis & Gilbert LLP 1740 Broadway New York, N.Y. 10019 By: Bruce J. Ginsberg, Esq.
Defendant Tobacco Institute: Seward & Kissel LLP "One Battery Park Plaza New York, N.Y. 10004 By: Jacob Horowitz, Esq.
Defendant Smokeless Tobacco: Jacob Medinger & Finnegan 1270 Avenue of the Americas New York, N.Y. 10020 By: Bryan A. McKenna, Esq.
Defendant U.S. Tobacco: Skadden Arps Slate Meaher & Horn 919 Third Avenue New York, N.Y. 10022 By: Arthur H. Aizley, Esq. Eric S. Sarner, Esq.
Defendant Liggett: Kasowtiz Benson Torres & Friedman 1633 Broadway New York, N.Y. 10019 By: Leonard A. Feiwus, Esq.
Defendant British American Tobacco: Chadbourne & Parke, LLP 30 Rockefeller Plaza New York, N.Y. 1011 By: Robert S. Pruyne, Esq.
Amicus: United States Department of Justice One Pierrepont Plaza Brooklyn, N.Y. 11201 By: Kevan Cleary, Esq.
I. Introduction
Pursuant to Rule 23 of the Federal Rules of Civil Procedure in Simon I (99 CV 1988), a class claims: (1) compensatory damages for cancer due to its members smoking, and (2) punitive damages. Simon II (00 CV 5332) involves a broader class of all persons who may have been injured by tobacco; it includes those suing in Simon I. See Simon v. Philip Morris Inc., 2000 WL 1658337 (E.D.N.Y., Nov 06, 2000) (NO.99 CV 1988).
It is suggested that, with limited exceptions described below, the individual and class action suits pending in this court (See Part II, infra), be tried as part of Simon II all of their allegations and claims are embodied in Simon II. The parties may amend Simon II to include additional claims for tobacco-related injuries due to passive exposure of non-smokers and in other respects in order to cover the universe of private Tobacco claims covered by the proposed Simon II class action.
A sampling of individual compensatory claims could be tried in Simon II in connection with the compensation opt-out class. Trial in this court would permit decision on general issues of fact and law such as fraud and general causation applicable to the entire Simon II opt-out class. Other individual's compensation claims could then be transferred to appropriate federal district courts throughout the country for decision on such issues as individual causation, individual damages and individual statutes of limitations defenses.
The number of individual compensatory claims tried in this court might be sufficient, if selected according to appropriate statistical and other principles, to provide a basis for determination of total probable compensatory damages throughout the nation. This projection might permit the jury in this court to fix total allowable punitive damages for the nation in the Simon II non-opt-out punitive class, to be disbursed in a modified form of fluid recovery to health, research and other protective institutions and to persons injured by tobacco requiring special assistance.
Daubert and other hearings would be required to determine the statistical viability of models supporting this approach. A number of such hearings have already been held and rulings made in cases being prepared for trial in this court. See Part II, infra.
While Simon II is being prepared for trial there appears to be no reason why the individual claims already scheduled for trial should not go forward. A number of other individual cases may also be set for trial while preparation of Simon II trials is underway.
It is appropriate to deal with the issue of class action certification in Simon II rather than in Simon I. Simon II, as ultimately amended, would then cover all private claims for injury as a result of Tobacco's activities, with some exceptions See e.g., United States v. Philip Morris, Inc., ___ F. Supp.2d ___, 2000 Daily Journal D.A.R. 10, 769 (D. D.C. 2000) (); National Association of Attorneys General, multistate Settlement with the Tobacco Industry, http://www.tobacco.neu.edu/Extra/multistatesettlement.htm (state claims).
Certification issues in Simon II appear to be essentially the same as those presented in Simon I,though slightly more complex in view of the broader scope and number of subclasses in Simon II. It is consonant with Rule 16 of the Federal Rules of Civil Procedure to structure the Tobacco cases pending in this court so as to limit the number of proceedings and of trials, as well as of appeals pursuant to Rule 23(f) of the Federal Rules of Civil Procedure.
Accordingly, the application for certification of Simon Iwas denied with a stay of the end of tolling of statutes of limitations. See Simon v. Philip Morris Inc., 2000 WL 1658337 (E.D.N.Y., Nov. 6, 2000) (No. 99 CV 1988); see also, The National Asbestos Workers Medical Fund v. Philip Morris, Inc., 2000 WL 1424931 (E.D.N.Y. Sept. 26, 2000) (stay of tolling). Simon II, as a class action, has an independent tolling effect.
The court will attempt to assist the parties in addressing issues likely to arise in preparation of Simon II for trial by issuing memoranda on such subjects as the propriety of the use of statistics to project probable compensatory damages as a predicate for punitive damages; Seventh Amendment implications of allowing separate juries to decide separable issues; and Rule 23 procedural issues, such as selecting subclass and class counsel, notifying members of the class, and using various methods to permit effective communication with members of the class and input of class members wishes.
Part II of this memorandum includes a summary of pending cases. Part III is a preliminary discussion of choice of law.
II. Pending Tobacco Cases
The pending Tobacco cases have been the subject of many motions and orders in contemplation of trials. See Simon v. Philip Morris Inc., No. 99 CV 1988...
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