Summary
limiting scope of expert's testimony after reviewing his testimony in a related state court trial
Summary of this case from Blue Cross and Blue Shield v. Philip MorrisOpinion
98 CV 3287
December 27, 2000
MEMORANDUM AND ORDER
Defendants move in limine to preclude, or to substantially limit, the testimony of Dr. Allan Feingold. He is well known as an often relied upon witness for plaintiffs in Tobacco litigation. Dr. Feingold is proferred by plaintiff as an expert internist and pulmonologist who has treated many smokers who were exposed to asbestos.
Pursuant to the court's direction, Dr. Feingold's testimony inAnderson v. American Tobacco Co., No. 42821/97 (N.Y.Sup.Ct. 2000) was presented in lieu of a Daubert hearing. Plaintiff agreed not to offer any of Dr. Feingold's proposed testimony in the Anderson case that was excluded by the trial judge in that case.
The issues on which Dr. Feingold is proffered in the instant case are almost identical to those he testified to in Anderson. In addition, plaintiff intends to have Dr. Feingold testify to some issues that were not raised in Anderson. Plaintiffs would offer in the instant case documents, supporting data and expert reports of the same general nature as those utilized to support Dr. Feingold's testimony in Anderson.
The parties have marked the Anderson trial transcript in colored inks to reflect those portions plaintiffs propose to have the witness testify to now and those portions defendants object to. The following constitutes the courts Daubert rulings. It has utilized the same general standards already utilized in related Tobacco cases pending in this court. See, e.g., Falise v. American Tobacco Co., 107 F. Supp.2d 200 (E.D.N.Y. 2000).
The Anderson case, while presenting many of the same issues as the instant case, is somewhat different in its scope and complexity.Anderson apparently involved the effect of defendant tobacco manufacturers' alleged deceit and wrongful conduct on a single smoker. The instant case is a suit by huge medical providers for the damages they seek as a result of expenses incurred in the treatment of many of their clients because of Tobacco's delicts. See Simon v. Philip Morris, No. 99 CV 1988, 2000 WL 1790470 (E.D.N.Y., Dec. 7, 2000) (summarizing pending Tobacco cases). The kind of proof to be expected in this action is closer to that in Falise v. American Tobacco, see id., a case arising from damages to an asbestos Trust compensating workers who smoked and were exposed to asbestos, than for a claim for damages to an individual claimant suing for his or her own disease.
Dr. Feingoldis essentially a treating physician with no scientific knowledge or expertise beyond what would be expected of a skilled internist and pulmonologist who treats a general population of the diseased. He has published no peer reviewed scientific articles. His extensive knowledge of the Tobacco literature appears to have been obtained solely in connection with his preparation to testify in tobacco cases.
1. The historical development of medical and scientific knowledge of the link between smoking and disease.
In Anderson, Dr. Feingold testified regarding the development of scientific knowledge concerning the link between smoking and disease and the early "consensus view" of the scientific communities on this issue.See Anderson Tr. at 1283-1326, 1424-1505. He stated that the rise in the incidence of lung cancer in the early to mid-1900's prompted the scientific community to publish studies addressing the issue in a number of scientific journals and public health reports. See Anderson Tr. at 1272-75, 1281-83. Dr. Feingold also testified about a number of these studies, explaining the significance each published study had on the scientific community's understanding of the effects of smoking on human health. See, e.g., Anderson Tr. at 1286-93, 1294-97, 1307-22.
Dr. Feingold will not be permitted to testify on these subjects except as they relate to medical treatment. It is true that, in addition to his medical practice at South Miami Hospital, Dr. Feingold claims to have devoted over twenty years to the study of the development of the medical and scientific communities' understanding of the health effects of smoking. See Expert Report of Dr. Allan Feingold ("Feingold Rpt.") at 2. Yet, testimony concerning the development of this scientific knowledge requires a scientist expert in the underlying scientific subject matters themselves as a result of work in the scientific community. Dr. Feingold's research and experience were in litigation, designed primarily to qualify him to assist juries in understanding the validity or invalidity of scientific assertions made in various scientific studies. Having read Dr. Feingold's testimony in Anderson, the court is left with the clear impression that more reliable and better qualified scientific witnesses should be available in Blue Cross on these matters. A particular danger with respect to forensic experts is to have a person qualified in one field seek to transfer his prestige to another field in which his qualification is minimal. See, e.g., Margaret A. Berger, The Supreme Court's Trilogy on the Admissibility of Expert Testimony, Federal Judicial Courts, Reference Manual on Scientific Evidence, 9-38 (2nd ed. 2000).
2. Discussion of nicotime addiction and other smoking-related diseases as seen from the perspective of an internist-pulmonologist.
In Anderson, Dr. Feingold testified regarding his clinical experience with patients suffering from nicotine addiction and smoking-related diseases. He provided a detailed description of his diagnoses and treatments of these diseases. See Anderson Tr. at 1247-65, 1700-83, 1808-34. As a medical doctor, Dr. Feingold is qualified to testify about the diseases caused by smoking acquired through his study and experience as a practicing physician.
Dr. Feingold is well qualified to testify on this subject. He is presently Chief of Pulmonary Medicine of South Miami Hospital, and previously held the position of Chairman of the Department of Medicine at the South Miami Hospital. Id. at 1248-52. He treats patients daily, id. at 1247. He has examined, interviewed and treated smokers and ex-smokers continually during the thirty years of his medical training and practice. See Feingold Rpt. at 2. He has personally treated many patients for cigarette-induced diseases including lung cancer, chronic obstructive lung disease, including chronic bronchitis and emphysema, and atherosclerotic coronary and peripheral vascular disease. Id.
As part of his practice, he has diagnosed and treated many patients for nicotine addiction. Id. Since 1982 Dr. Feingold has run the smoking cessation clinic at South Miami Hospital and lectured to clinic participants on nicotine addiction. Dr. Feingold's study and experience qualify him to testify regarding nicotine addiction and smoking-related diseases.
Plaintiffs may ask Dr. Feingold questions concerning his review of the medical records produced by the individual Empire subscribers who have testified during "individual depositions."
3. Discussion of internal tobacco company documents indicating the industry's knowledge of scientific and medical links between smoking and disease.
In Anderson, Dr. Feingold testified regarding a number of internal tobacco company documents indicating the industry's knowledge of scientific and medical links between smoking and disease. See Anderson Tr. at 1526-1647. These internal documents purport to show what the industry knew concerning the effects of smoking on human health and when they knew it. See e.g., Anderson Tr. 1540-53, 1610-18, 1641-42.
Dr. Feingold's testimony regarding these and similar documents will not be permitted. The documents provide important information on what the industry knew about smoke chemistry, carcinogens, human dosages and the effects of cigarette smoke on health. They suggest that defendants knew their products could cause disease and that they were aware of valid scientific and medical studies and conclusions to that effect; at the same time the industry publicly was questioning or denying this information. Counsel can argue about the probative force of these documents. Dr. Feingold's testimony would add nothing to their probative force.
4. Comparison of the tobacco industry's public assertions on smoking and health with the medical and scientific communities' knowledge at the time the statements were made.
In Anderson, Dr. Feingold testified that a number of statements made by the tobacco industry on the issue of smoking and health were not accurate when judged against generally accepted medical and scientific standards at the time the statements were made. See Anderson Tr. at 1680-98. As indicated in the Falise trial, scientists with more focused backgrounds than Dr. Feingold's can be more helpful than can Dr. Feingold. While an expert need not be the best one available in order to qualify, Dr. Feingold is essentially an expert on litigation rather than an expert on science with respect to this issue.
5. Comparison of the tobacco industry's public assertions on smoking and health with the industries' own internal documents.
Dr. Feingold intends to testify that public statements made by the tobacco industry on the issue of smoking and health were contradicted by the industry's internal documents. Dr. Feingold was permitted inAnderson to compare the tobacco industry's public statements on smoking and health with the medical and scientific communities' views on the issue. Dr. Feingold was also permitted in Anderson to testify regarding a number of internal tobacco company documents indicating the industry's knowledge of scientific and medical links between smoking and disease. He is not qualified to compare the industry's public statements with the statements in its internal files. These matters can be argued by counsel or testified to by scientists with special knowledge in this field.
6. Discussion of the impact on the medical and scientific community if the internal tobacco documents had been released in a timely manner.
Dr. Feingold is offered to testify as to how internal tobacco company documents, if they had been released in a timely manner, would have altered the scientific community's understanding of the effects of smoking on the human body. Stated another way, Dr. Feingold would offer his opinion on the probable effect on the medical and scientific communities had the tobacco industry's public statements mirrored their internal files. Dr. Feingold was permitted in Anderson to testify regarding a number of internal tobacco company documents indicating the industry's knowledge of scientific links between smoking and disease. Dr. Feingold was also permitted in Anderson to testify regarding the scientific community's developing views concerning the effects of smoking on human health, explaining how various published studies enhanced understanding of this issue. For the same reason stated in Section 5,supra., Dr. Feingold will not be permitted to testify on this topic.
7. Summary of Exclusions
Every topic on which Dr. Feingold is precluded from testifying will be covered by another expert among plaintiff's witnesses with specific qualifications to discuss the particular issue. Thus, in addition to being unqualified, except to a very limited degree, under Daubert, most of Dr. Feingold's proposed testimony is cummulative and repetitive.
The following from the Anderson transcript marked in red are explicitly precluded: 1270-71, 1285-86, 1292-93, 1295-98, 1300, 1304, 1306, 1310, 1315-1318, 1321-1322, 1427, 1433, 1447-1449, 1452, 1461-1462, 1479, 1489-1490, 1505, 1508, 1527-1528, 1530, 1536-1537, 1539-1540, 1550, 1552, 1564-1565. 1580-1586, 1588-1601, 1603, 1605-1618, 1627, 1638, 1645-1649, 1681, 1682-1698, 1799-1804, 2045-2047.
Should the parties require more detailed rulings they may make further motions in limine.
SO ORDERED.