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Bifolck v. Philip Morris, Inc.

United States District Court, D. Connecticut

September 25, 2017

VINCENT J. BIFOLCK, Plaintiff,
v.
PHILIP MORRIS, INC., Defendant.

          CONFERENCE MEMORANDUM AND ORDER

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         On September 14, 2017, I held a hearing on the pending motions in limine with David Golub and Jonathan Levine, counsel for the plaintiff, Vincent Bifolck; and Scott Kaiser, Fran Morrison, Geoffrey Michael, and John Tanski, counsel for the defendant, Philip Morris, Inc. (“PM”). This order represents a summary of the rulings I made on the record. Where pertinent, I have included clarifications of my oral rulings such that this order should be the controlling document regarding my resolution of those motions.

         Doc. # 351 - Motion for 48-Hour Advance Notice of Witnesses and Exhibits before Presentation at Trial

         PM moved for 48-hour advance notice of witnesses and exhibits before presentation at trial. I indicated that this was a reasonable request, and something I generally try to incorporate in trials, informally or formally. I specified that each party should make best efforts to provide the other party with notice of testimony and exhibits it intends to offer at trial, and such notice should be provided at least 48 hours in advance of the evidence being offered. Additionally, I indicated that each party must make best efforts to give the other 48-hour notice of when it plans to rest its case, which then shifts the 48-hour notice obligation to the other party. The motion is granted.

         Doc. # 282 - Motion to Exclude Evidence of and Argument Related to Ammonia Compounds or Other Additives or Ingredients Used in Cigarettes

         PM moved to preclude evidence or argument related to the effect of ammonia compounds or other additives on the addictiveness and/or harmfulness of cigarettes on the grounds that such evidence lacks sufficient reliability under the Daubert standard and that it is irrelevant and unduly prejudicial to PM. The ammonia issue has two related but different components: (1) whether ammonia renders a higher blood level of nicotine; and (2) whether ammonia renders the cigarette more addictive. On the first point, there seems to be sufficient scientific evidence to allow expert testimony that adding ammonia to a cigarette increases the level of “free base” nicotine as opposed to “bound” nicotine, which provides the user with an increased “kick” or physiological reaction. Expert testimony to that effect is admissible. On the second point, however, there does not seem to be sufficient scientific evidence to support the theory that the addition of ammonia to a cigarette, and the resultant “kick, ” increases the addictiveness of the cigarette. It may make the cigarette more enjoyable to the user, but there is insufficient evidence to correlate that to an increased addictiveness. Accordingly, expert testimony to that effect is inadmissible.

         Regarding the other additives issue, I indicated that expert testimony is admissible to allow the jury to understand the plaintiff's theory that these additives made the cigarette more dangerous or harmful. PM expressed its concern that Bifolck will pick and choose which additives to discuss, based on the reaction it might receive from the jury, i.e., formaldehyde or castoreum (found naturally in a secretion from glands near the anal glands of beavers). I indicated that I thought it was unnecessary for Bifolck to offer an exhaustive list of additives to prove its contention that cigarettes are more harmful and addictive based on their ingredients. Bifolck represented that he did not intend to offer evidence on every additive, and agreed to provide PM with advanced notice before eliciting testimony or offering exhibits on specific additives. For those reasons, the motion is granted in part and denied in part. Specific objections will be ruled on at trial.

         Doc. # 283 - Motion to Preclude Evidence or Argument that Low Nicotine Cigarettes are not Addictive

         PM moved to preclude evidence or argument that low nicotine cigarettes are not addictive. The testimony PM seeks to preclude, that low-nicotine cigarettes are not addictive, seems to be the subject of legitimate scientific debate and, therefore, not properly subject to preclusion by way of a Daubert motion, but, rather, will be the subject of cross-examination. PM objected, then, to testimony from Bifolck's experts about a requisite threshold of nicotine, below which a cigarette is non-addictive. PM argued that it is irrelevant, under Fed.R.Evid. 403, because Bifolck's expert witnesses had inconsistent opinions about that threshold amount. Bifolck indicated that all of his experts will testify that the requisite amount of nicotine, below which a cigarette is non-addictive, is 0.1 milligrams per cigarette. Regarding Dr. Cummings' expert opinion on the nicotine level, I indicated that Bifolck had not updated its expert disclosure to include his opinion that a nicotine level at 0.1 mg/cigarette or less renders a cigarette non-addictive. That is harmless error, however, because PM has frequently deposed Dr. Cummings regarding his opinions on the addictiveness of cigarettes. I suggested that PM let Bifolck know if it needed to re-depose Dr. Cummings or Dr. Farone on their opinions regarding a non-addictive nicotine threshold. For those reasons, the motion is denied. Specific objections will be ruled on at trial.

         Doc. # 285 - Motion to Preclude Expert Testimony by Dr. Grunberg

         PM moved to preclude Dr. Grunberg from testifying (1) that there is a minimum effective dose range of nicotine necessary to initiate and sustain addiction, (2) about medical and public health history regarding cigarettes and nicotine addictiveness data, and (3) that PM has manipulated cigarette design to foster addiction among smokers. I ruled that any argument about Dr. Grunberg's qualifications to testify was not meritorious on the basis of his education, training, and experience. He has completed doctoral training in pharmacology, he was the Scientific Editor of the U.S. Surgeon General's Report on nicotine and addiction, and has served on numerous working committees involved with this topic. In terms of his qualifications to be an expert in this area, he has certainly met the Daubert standard. PM further moved to preclude Dr. Grunberg's testimony about medical and public health history on the basis that it would be cumulative, because Bifolck disclosed at least one other witness to testify on that subject. I suggested that Bifolck decide which of his experts would testify on this topic, and communicate that to PM within the next week or two. For those reasons, the motion is denied. Specific objections, including foundation objections, will be ruled on at trial.

         Doc. # 298 - Motion to Preclude Cross-Examination of Plaintiff's Medical Experts Regarding the Market Availability or Design Feasibility of “Safe” or “Safer” Cigarettes

         Bifolck moved to preclude cross-examination of his medical experts regarding the availability or feasibility of safe and/or safer cigarettes. This issue has two sub-parts: (1) proposed testimony regarding market availability; and (2) proposed testimony regarding design feasibility. Bifolck's medical experts are not sufficiently qualified to testify about the design feasibility of “safe” or “safer” cigarettes, because they are not cigarette design experts. It is proper cross-examination, however, to ask the medical experts about their perceptions of the market availability of “safe” or “safer” cigarettes. PM's attorneys may ask questions about whether the witnesses are aware of any cigarettes on the market that they deem “safe” or “safer” but not about whether it is theoretically possible to design “safe” or “safer” cigarettes. For those reasons, the motion is granted in part and denied in part. Specific objections will be ruled on at trial.

         Doc. # 301 - Motion to Preclude Testimony, Argument, and Evidence Regarding ...


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