RJ Reynolds Affidavit in Opposition to Motion of Mt Sinai Medical Center to Quash Subpoena for Research Data

8/8/2019 RJ Reynolds Affidavit in Opposition to Motion of Mt Sinai Medical Center to Quash Subpoena for Research Data

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

In the Matter ofThe Application of R. J . REYNOLDSTOBACCO COMPANY for an Order toTake the Deposition of MT. SINAISCHOOL OF MEDICINE in a Certain Action Pending in California

In the Matter ofThe Application of R. J . REYNOLDSTOBACCO COMPANY for an Order toTake the Deposition of theAMERICAN CANCER SOCIETY in aCertain Action Pending in California

STATE OF NORTH CAROLINA )) ss :COUNTY OF FORSYTH )

Index No. 28865/85

AFFIDAVIT IN OPPOSITION......TO MOTION

Index No. 28864/85

DANIEL W. DONAHUE, being duly sworn, deposes and says:1. . I am an attorney with Womble Carlyle Sandridge & Rice

of Winston-Salem, North Carolina, and have been admitted prohac vice as counsel of record for the R. J . Reynolds TobaccoCompany in an action ent i t l ed : "Flora Mae Browner v. -R. J .Reynolds Tobacco Company, e tc . , e t al ." pending in the ContraCosta County, California Superior Court. I make th is aff idavi tin opposition to the motion by Mt. Sinai School of Medicine("Mt. Sinai") and the American Cancer Society (the "CancerSociety") to quash the subpoenas or delay responding to them.


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2. The Browner case is scheduled for t r i a l in ContraCosta County, California Superior Court beginning February 4,1986. Pursuant to order of that court , non-expert discoverymust be completed on or before January 3, 1986.

3. On November 25, 1985, plain t i f fs in Browner servedthe i r expert witness l i s t upon the R. J . Reynolds Tobacco Com-pany. Due to the intervention of the Thanksgiving holiday,that l i s t was not receiveQ-by the u n d e r s i g n e d ~ t i l Monday,December 2, 1985. Contained on that l i s t of expert witnessesis Dr. Kaye Kilburn, Dr. Richard A. Bordow and Dr. David M.Burns. Subsequent to receipt from plain t i f fs of the designat ion of expert witnesses, undersigned began assemblingbackground material on those witnesses, which material includeda deposition of Dr. Kilburn given March 11, 1983, in whichdeposition he s tated, among other things, that he rel ied uponthe "Selikoff" data (apparently referr ing to one or both of thestudies subpoenaed in this case) , and in which deposition hefurther s tated that on occasion, while he was in New York, hewould "go by and see what the numbers are." Page 36 of thatdeposit ion is attached to this aff idavi t . Pursuant to preparing for the depositions of Drs. Bordow and Burns, undersigned has reviewed a publication ent i t led "Manual of ClinicalProblems in Pulmonary Medicine" edited by Dr. Bordow, portionsof which were written by Dr. Burns. Throughout that

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publication, they refer to the subpoenaed s tudies . In Section103 of the book enti t led "Lung Cancer: Classi f icat ion, Pathology and Epidemiology," a section shown in the 1985 edition asbeing written by Dr. Gennaro M. Tfsi (a similar section of the1980 edition of the same manual was written by Dr. Bordow) andin both editions reference is made by the author to a "92-foldincreased r isk" on the part of asbestos workers who smoke. Theundersigned is advised the only basis ~ s u c h a statementis an opinion published by Dr. Irving Selikoff based upon databeing subpoenaed in this case. Further, in Section 82 of themanual ent i t led "Asbestos-Related Disease," writ ten by Dr.Bordow and Dr. Deborah Shure, the statement is made thatindividuals who smoke and have asbestos exposure demonstrate a53 times"higher ~ i s k for cancer than someone who neither smokesnor is occupationally exposed to asbestos. The studies subpoenaed in th is case are cited in a footnote as support forthat statement .

4. The undersigned has been advised by consultantsretained by him that no meaningful s ta t i s t ica l or epidemiological analysis of the subpoenaed studies can be preparedbased upon published and publicly available information.Clearly, pla in t i f f ' s expert witnesses, who by the i r sworn tes timony have had access to the subpoenaed materials , have beengiven an unfair advantage over experts retained by the

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defendant, since they will be in a posit ion to tes t i fy beforethe jury that they have reviewed the underlying data and tha tin their opinion i t supports the conclusions published. Thedefendant R. J . Reynolds Tobacco Company wil l be unable tofair ly or fully cross-examine p la in t i f f ' s experts withoutaccess to that information. The aff idavi t of undersigned'sretained consultant has been f i led in further opposition to themotion of Mt. Sinai and thEr Cancer Society. 0"

5. The plain t i f fs in Browner contend that Harold Brownerwas occupationally exposed to asbestos f ibers and was a cigare t te smoker. They therefore contend that he was great ly a trisk for developing lung cancer, and the i r expert witnesses,Dr. Kaye Kilburn, Dr. Richard Bordow and Dr. David Burns, areexpected to tes t i fy in support of that contention. Defendant'sexperts, unless they have access to the data underlying theconclusions published, cannot tes t i fy on equal footing withpla in t i f f ' s experts, who have access to that data.

6. Mt. Sinai and the Cancer Society take the posit ionthat i t wil l be impossible for them to review and produce thedata in the time allowed. Undersigned counsel for the defendant R. J . Reynolds Tobacco Company is advised and believesthat a large portion of the data subpoenaed has been reduced tocomputer-generated magnetic tape, and production of such a tapeor tapes, together with appropriate coding ins t ruct ions , wil l

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const i tute compliance with a substant ia l port ion of the subpoena. In fact , very similar data-- the resul t s of the AmericanCancer Society 's 25 s t a t e study--have recent ly been produced bythe American Cancer Society in response to a s imi lar request inthe Cipollone case pending in the United States Dis t r ic t Courtfor the Dis t r ic t of New Jersey, the production being largely inthe form of computer data base tapes and coding and accessinstruct ions. u n d e r s i g n ~ counsel for R. J . _~ y n o l d s TobaccoCompany has been advised by Robert Task, counsel for theAmerican Cancer Society, that the information subpoenaed inthis case is in the form of computer-generated data base tapes.

7. As the subpoena served upon Mt. Sinai and the CancerSociety wil l show, the defendant R. J . Reynolds Tobacco Companydoes not seek any privileged material , nor does i t seek theidenti ty of respondants to Drs. Sel ikoff ' s or Hammond'sstudies, nor does i t have any intention of contacting any ofthose respondants. The defendant R. J . Reynolds Tobacco Com-pany has no intention to , in any way, interfere with on-goingor chi l l future research conducted by Dr. Sel ikoff .

8. Counsel for Mt. Sinai and the Cancer Society contendsthat pr ior to the f i l ing of his motion, he engaged in a "goodfaith" effor t to resolve th i s issue. The "good fai th" ef for tconsisted solely of a request by counsel made of the undersigned, to "substant ia l ly" narrow the scope of the subpoena

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served and to postpone indefini tely i t s return date and tha t ,once that was done, he would further consult with his cl ientsand advise i f they would voluntari ly respond to the substant i a l ly restr ic ted subpoena. Undersigned counsel for R. J .Reynolds Tobacco Company inquired of counsel for Mt. Sinai andthe Cancer Society in what specific area the subpoena should benarrowed, and was advised that no specific areas weresuggested, but that unless the subpoena were "substantially"narrowed and the scope of1the information sOught "severely" res t r ic ted , the motion to quash would be f i led. Counsel for Mt.Sinai and the Cancer Society at no time made any offer toproduce any portion of the materials subpoenaed. On Monday,December 16, 1985, undersigned counsel for the defendant R. J .Reynolds Tobacco' Company part icipated in.a conference telephoneca l l involving John W. Ritchie, counsel for Mt. Sinai and theCancer Society, Lauren Tasl i tz , in-house counsel for Mt. Sinai ,and Beth Essick, a research assis tant for Dr. Selikoff . Duringthe course of that telephone conversation, and during thecourse of a subsequent conversation between the undersigned andJohn Ritchie, the undersigned was advised both that Dr.Selikoff adamantly refused to turn over the documents requestedand repeated his threat , often advanced previously againstmembers of the asbestos industry, that if subpoenaed, or if hisdocuments were subpoenaed, he would come into court and tes t i fy

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aggressively against any party seeking to ei ther depose him ordiscover his documents. Undersigned counsel for the defendantR. J . Reynolds Tobacco Company has been advised by counselinvolved in asbestos and asbestositobacco related lawsuits tha tthat same threat has been made on numerous previous occasions.

9. Mt. Sinai and the Cancer Society take the posit ion intheir motion papers that they were subpoenaed and given only a6-day return period to prepare the r e q u e s t e ~ f o r m a t i o n . Whatthey failed to advise the court is that on November 15, 1985,undersigned counsel for Reynolds sent to the Mt. Sinai Schoolof Medicine a le t ter requesting the data subpoenaed. A copy ofthat le t te r is attached. Undersigned counsel for Reynolds,prior to the time the subpoena was issued, did not receive fromMt. Sinai the courtesy of a response to that le t te r . Undersigned has been advised by Lauren Tasli tz , counsel for Mt.Sinai , that the le t ter was in fact received and she had i t inher off ice . No reason was advanced in Mt. Sinai 's motionpapers for their failure to respond. Further, on November 26,1985, undersigned counsel for Reynolds sent to the AmericanCancer Society a le t te r requesting the data subpoenaed. A copyof that l e t te r is attached. On December 4, 1985, LawrenceGarfinkel of the American Cancer Society responded to that l e t t e r , stat ing that the materials requested were the property ofDr. Selikoff of Mt. Sinai and suggested that the inquiry be

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directed to him. A copy of that l e t t e r is attached. In i t , noreference is made to the fact that the American Cancer Society,in fact , had in i t s possession the computer-generated data basetape described by Robert Task, counsel for the Cancer Society.

10. The posit ions advanced by Mt. Sinai and the CancerSociety are substant ial ly identical to those advanced by Dr.Arthur L. Herbst, Custodian of the Records for the Registry forthe Hormonal T r a n s p l a c e n t ~ Carcinogenesis a ~ - t h e University ofChicago, in Deitchman v. E.R. Squibb, 740 F.2d 556 (1984), copyattached. There, the doctor whose records were subpoenaedasserted confident ial i ty, privi lege and violat ion of publicpolicy, as here. There, the doctor subpoenaed was, as Sel ikoffhere contends to be, an expert in the area. The defendant E.R.Squibb & Sons, Inc. subpoenaed the information, arguing tha t i twas needed to defend the case since pla in t i f f ' s experts rel iedupon the data. The court in Deitchman ruled with Squibb,denying the doctor 's motion to quash the subpoena.

THIS the day of December, 1985.

C = - ~ ~ ~ = = : > LDaniel W. Donahue

S u b s c r i b ~ d and sworn tothis day of December, 1985.& a d . ; ' . ~ d J N&tary Publ iCMy commission expires: 1 ~ ~ / 7 - 1 7 r - ; ; ~ orr : ICl r .L ::!';I\'_, . .. . ., . "V"'..\ t : o ~ a r y J'lihl:.:, North caro1lna.;. '.. ) ; ~ . . C,):'r.:y of Forsyth )( "-:..:........ CLAU:)LL\ G. LYDAL":V commisc;iQll (',pires Oct. 17. 1987__:w_:w --


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APPENDIXTABLE OF CONTENTS

Page 36, Deposi t ion o f Dr. Kaye H. Kilburn ,March 11, 1983

Le t t e r t o Mt. S in a i School o f Medicine datedNovember 15, 1985 !_ Le t t e r to American Cancer Socie ty da tedNovember 26, 1985.

Le t t e r from Lawrence Garf inke l , American Cancer

ATTACHMENT

1

2

3

Socie ty dated December 4, 1985 . . . . . 4

Deitchman v . E.R. Squibb & Sons, I n c . ,740 F.2d 556 (1984) 5

Documents

RJ Reynolds Affidavit in Opposition to Motion of Mt Sinai Medical Center to Quash Subpoena for Research Data