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Kuhne v. R.J. Reynolds

United States District Court, D. Connecticut

February 27, 2019




         The Court makes the following rulings on the pending pretrial motions.

         Motion for 48 Hours Advance Notice of Witnesses and Exhibits

         In light of counsel's extensive litigation experience, particularly with tobacco litigation with the same counsel, the Court finds that 24 hours' advance notice is sufficient, although the Court recommends that counsel provide the courtesy of 48 hours' advance notice. The Court will not make exceptions without good cause for the failure to provide adequate notice. This motion is granted in part.

         Motion in Limine to Preclude Lay Opinion Testimony on Addiction

         Defendant seeks to preclude non-experts from testifying about Ertman's addiction. Lay witnesses should not offer expert opinion about whether Ertman was addicted. However, witnesses-friends and family of Ertman-may testify about what they observed about Ertman's smoking and what he told them about his smoking habit, which may include whether he stated that he was “addicted.” Such evidence is relevant to Ertman's state of mind about his ability to stop smoking.

         These witnesses may use the word “addicted” in the colloquial sense to describe their observations. The defense may clarify the difference between a medical expert opinion and a layperson's use of that term on cross examination and the court can also provide an instruction, if necessary. This motion will be denied.

         Motion in Limine To Preclude Evidence Regarding Preempted Theories of Liability

         Defendant claims that FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) provides that federal law preempts all state theories of liability that would have the effect of removing tobacco products from the market. Defendant maintains that plaintiffs' claims are based on a generic attack on the characteristics of all cigarettes, and it seeks an order to preclude evidence or argument in support of a negligent design theory based on the inherent characteristics of cigarettes, including evidence concerning liability based on the addictive and/or cancer-causing nature of cigarettes.

         Defendant's preemption argument has been rejected by the Eleventh Circuit in Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1190 (11th Cir. 2017), cert. denied, 138 S.Ct. 646 (2018). In holding that federal law did not preempt state law claims based on the dangerousness of all the cigarettes manufactured by the tobacco companies, the Eleventh Circuit examined the regulatory statutes and found no indication that “Congress created a regulatory scheme that does not tolerate tort liability based on the dangerousness of all cigarettes manufactured by the tobacco companies but tolerates tort actions based on theories with a more limited scope. Id. at 1188. The Court elaborated that a state “may employ its police power to regulate cigarette sales and to impose tort liability on cigarette manufacturers” unless there is “clear and manifest purpose of Congress” to supersede such “historic police power.” Graham, 857 F.3d at 1191. It noted that “R.J. Reynolds and Philip Morris would have us presume that Congress established a right to sell cigarettes based on a handful of federal labeling requirements.” Id.

         In Bifolck v. Philip Morris USA Inc., 06cv1768 (Doc. 332), Judge Underhill also rejected defendant's preemption argument, stating that he found Graham persuasive and that plaintiff's theory of liability concerned whether specific cigarettes-Marlboro and Marlboro Light--had been manufactured in a way that made them unnecessarily addictive and carcinogenic. He found that a finding of liability would not amount to a blanket ban of cigarettes. In the instant case, plaintiffs seek to present evidence concerning the specific design of the Salem cigarettes. Accordingly, the Court will deny the motion in limine in light of Graham and plaintiff's theory of liability that is based on the specific design of Salem cigarettes.

         Motion to Strike Plaintiff's Improper Cumulative Witnesses

         Defendant argues that plaintiffs have named four cumulative medical witnesses who will present opinions duplicative of other named medical witnesses. Plaintiff counters that three of these medical witnesses (Drs. Frederico, Fiedler, and Chung) were directly involved in the treatment of Ertman; and that the fourth witness (Dr. Wick) is an expert in the area of thymic carcinomas, whose testimony is relevant to rebutting defendant's assertion that Ertman's treating physicians mis-diagnosed his small cell lung cancer. Plaintiffs made the disclosures relevant to Drs. Chung, Frederico, and Fiedler in October 2018, and relevant to Dr. Wick in November 2018. Defendant has had adequate notice of these witnesses, who appear likely to provide useful information to the jury. Accordingly, the Court will deny this motion without prejudice to specific objections at trial.

         Motion to Preclude Opinions about Permanent Brain Changes

         This motion is moot in light of plaintiff's counsel's representation that no such evidence will be presented.

         Motion in Limine to Exclude Evidence that Plaintiff's Expert, Dr. K. Michael Cummings, Donates a Portion of his Fees

         The Court will grant the motion as to direct examination but may allow the evidence if the door is opened on cross examination.

         Motion to Preclude Expert Testimony on Meaning of or Intent Behind Company Documents

         In Bifolck, Judge Underhill ruled that (1) an expert may not testify to the state of mind of the author of the company documents, but that (2) an expert may, using his or her specialized knowledge, explain the meaning of certain terminology in order to assist the jury. Conference Memorandum and Order (doc. 332). The Court will adopt Judge Underhill's approach and grant the motion as to the state of mind of the author of the documents. If an issue of an author's intent is relevant to the meaning of a technical term, the Court can determine the admissibility of such testimony at trial.

         Motion to Strike Plaintiffs' Cumulative Witnesses, or Alternatively, to Impose Reasonable Time Limits on the Presentation of Evidence

         Defendant requests that the Court narrow plaintiffs' witness list or set time limits on witness testimony. The Court will deny this motion. The well experienced counsel involved in this case should be capable of assessing whether a witness is relevant to the jury's consideration and the amount of time to allocate to each witness.

         Motion in Limine to Exclude Evidence of Any Alleged Youth Marketing

         Defendant claims that this evidence is irrelevant and prejudicial; that the First Amendment protected such marketing as speech; and that evidence of youth marketing prior to plaintiff's birth in 1942, and after he became an adult, should be precluded. Plaintiffs have indicated that pre-1942 evidence will not be presented, but they have otherwise opposed defendant's motion.

         Ertman is asserted to have commenced smoking when he was thirteen years old.

         In Izzarelli v. R.J. Reynold Tobacco Co, 806 F.Supp.2d 516, 530 (D. Conn. 2011), Judge Underhill considered whether he had erred by permitting evidence of “youth marketing.” He noted that the evidence that defendant characterized as comprising “youth marketing” concerned, generally “considerations that R.J. Reynolds took in designing Salem Kings, the product's target audience, and how the product was marketed to its target audience.” Id. at 530. He ruled that “evidence of how R.J. Reynolds developed its consumer base and marketed its product to that base was relevant in assessing what the consumer base, i.e., the ordinary consumer, understood about the characteristics of a Salem King.” Id. Thus, Izzarelli--who, similar to Ertman, had commenced smoking as a minor--was permitted to show (1) that the ordinary consumer “was typically a youth or minor smoker;” (2) that defendant had “endeavored to capture the youth or beginning smoking market, ” and (3) that defendant acknowledged that minors lacked the capacity to make informed choices about smoking. Id. at 531. Judge Underhill found further that “evidence concerning product design, decisions made by R.J. Reynolds and how the product was marketed to consumers was also relevant for the purposes of deciding whether to award punitive damages.”

         The Second Circuit affirmed the proper admission of such evidence on several bases. Izzarelli, 701 Fed.Appx. 26, 31 (2d Cir. 2017). “First, it supported Izzarelli's claim that Salem Kings were uniquely designed to contain, inter alia, nicotine levels that were just high enough to cause and maintain addiction but low enough to induce frequent smoking, ” and the plaintiff was able to demonstrate that the Salem King's “design was adopted in part to attract young, new smokers, who disliked the bitterness of nicotine and preferred flavorful cigarettes.” The Court explained that the “youth marketing evidence indicated that minors-who compose the bulk of new smokers and have strong brand loyalty-were Salem Kings' target demographic, ” which was relevant “because consumer expectation is a factor in determining strict liability.” The Court went on to note that the evidence “informed the jury's understanding of the utility of the product, which is critical to the governing risk-utility test, ” and that it helped establish defendant's “actual or imputed knowledge of the danger, ” an “essential element of negligence.” Finally, the Court found that the evidence was relevant to both plaintiff's proof of reckless disregard for punitive damages, and defendant's defense of comparative fault.

         In light of this precedent, the Court finds that evidence of marketing and development is relevant to the identification of the ordinary consumer and consumer expectations; whether there was a breach of the duty of reasonable care; and whether punitive damages should be awarded due to defendant's reckless disregard for safety of consumers or those harmed by the product. However, the Court will consider specific objections to the extent that plaintiffs seek to use such evidence to prejudice defendant in a manner that is irrelevant to the scope of this litigation. Accordingly, this motion will be denied without prejudice to specific objections.

         Motion in Limine to Exclude the Improper Opinion Testimony of Dr. Jeffrey Lustman On Addiction

         Defendant argues that Dr. Lustman, Ertman's treating psychiatrist, should be precluded from offering opinion testimony concerning Ertman's addiction, which is outside of his care and treatment. Defendant also maintains that such testimony is cumulative of medical witness testimony from Dr. Glassman, Dr. Cummings, and Dr. Hills. Plaintiffs have explained that Dr. Lustman will not be able to appear at the trial to testify.

         The Court will allow the testimony, which is likely to provide useful, relevant information to the jury. Further, the testimony does not appear to be cumulative. Dr. Glassman has died; Dr. Cummings is not a psychiatrist; and Dr. Hills, has been disclosed as an expert to comment on Dr. Lustman's deposition testimony and medical records relating to his treatment of Ertman. This motion will be denied.

         Motion to Preclude Evidence and Argument Regarding Irrelevant Matters

         Defendant has listed the following areas that it claims are irrelevant: (1) comparing Reynolds' conduct to other corporate wrongdoing; (2) commenting on the absence of Reynolds' corporate representatives at trial; (3) referencing the geographic origin of Reynolds' trial counsel or its litigation resources; (4) introducing evidence or questioning witnesses regarding Reynolds' pretrial fact investigation; (5) arguing that Reynolds has failed to take responsibility or apologize to plaintiffs or Ertman; (6) introducing any evidence that Reynolds objected to discovery requests or suggesting that it engaged in discovery misconduct; (7) suggesting that Reynolds' counsel ...

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