FEDERAL COURT IN WASHINGTON STATE REJECTS TOBACCO INDUSTRY BID TO DISMISS UNION HEALTH AND WELFARE FUND LAWSUIT; APPROVES TRUST FUND DAMAGE MODEL AND EXPERTS
FEDERAL COURT IN WASHINGTON STATE REJECTS TOBACCO INDUSTRY BID TO DISMISS UNION HEALTH AND WELFARE FUND LAWSUIT; APPROVES TRUST FUND DAMAGE MODEL AND EXPERTS
PRESS ADVISORY
ORDER ON PLAINTIFFS' MOTION TO ADMIT DAMAGE MODEL, ETC.
ORDER ON PLAINTIFFS' MOTION TO EXCLUDE EVIDENCE, ETC.
ORDER ON DEFENDANTS' ALTERNATIVE MOTION TO DISMISS
ORDER ON PLAINTIFFS' MOTION TO STRIKE DEFENSES
ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON PLEADINGS
PRESS ADVISORY PRESS ADVISORY
FOR IMMEDIATE RELEASE
December 29, 1998
FEDERAL COURT IN WASHINGTON STATE REJECTS TOBACCO INDUSTRY BID TO DISMISS UNION HEALTH AND WELFARE FUND LAWSUIT; APPROVES TRUST FUND DAMAGE MODEL AND EXPERTS.
On December 23, 1998 U. S. District Court Judge, William Dwyer, from the Western District of Washington denied the tobacco industry's motion to dismiss the Union Health and Welfare Trust Fund class action brought against the tobacco industry to recover health care costs and for smoking-related illnesses.
Judge Dwyer noted that in a comparable case, the state of Washington survived summary judgment and was tried for several weeks before being settled. The court noted that the defendants' misconduct was alleged to have been "done with the purpose and effect of insuring that other health we providers and payers and not the [Tobacco industry] defendants bore the business costs of the disease and illness caused by the defendants' unsafe products."
At the same time Judge Dwyer issued an order admitting into evidence the plaintiffs' damage model and expert testimony, This ruling upholds the sufficiency and admissibility of the expert testimony plaintiffs offered to prove what proportion of the Trusts' total medical expenditures are for smoking related illnesses. It is estimated that damages for the class as a whole could reach hundreds of millions of dollars.
These rulings set the stage for a jury trial of this case on the merits starting September 12, 1999 in the Western District of Washington. It is scheduled to be the second Union Health and Welfare case to go to trial after the trial now set in the Northern District of Ohio before the Honorable James Gwin on February 22, 1999.
Both motions were argued before Judge Dwyer by Michael Withey at Stritmatter Kessler Whelan Withey, After receiving the court's rulings Withey commented:
"This victory creates important momentum for the ability of employer/employee trust funds to recover medical costs attributed to smoking, With the settlement of the State Attorney General's lawsuits these trust fund cases now stand as the next major battleground for holding the tobacco industry responsible for the 45 years of deceit and conspiratorial misconduct."
Other plaintiffs' counsel include:
Paul Stritmatter
STRITMATTER KESSLER WHELAN WITHEY
413 Eighth Street
Hoquiam, WA 98550
Tel: (360) 533-2710
George Kargianis
Cleveland Stockmeyer
KARGIANIS WATKINS, LLP, P.S.
2025 First Avenue, Penthouse Suite A
Seattle, WA 98121
Tel: (206) 448-7969
Lembhard G. Howell
LEMBHARD G. HOWELL, P. S.
720 Third Avenue, Suite 2105
Seattle, WA 98104
Tel: (206) 623-5296
Steve W. Berman
HAGENS & BERMAN
1301 Fifth Avenue, #2929
Seattle, WA 98101
Tel: (206) 623-7292
DEC 2 3 1998
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
NO. C97-849WD
ORDER ON PLAINTIFFS' MOTION TO ADMIT DAMAGE MODEL AND EXPERT TESTIMONY AND DEFENDANTS' MOTION TO EXCLUDE DAMAGE MODEL
THE NORTHWEST LABORERS EMPLOYERS HEALTH & SECURITY TRUST FUND and its TRUSTEES, et al.,
Plaintiffs,
v.
PHILIP MORRIS, INCORPORATED, et al., Defendants.
Plaintiffs move for a ruling, that their damage model is admissible in evidence under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and Fed. R. Evid. 701-703. Defendants move for an order excluding the model, All materials filed, and counsel's arguments presented in
open court on December 21, 1998, have been considered.
In deciding whether to admit or exclude scientific evidence, the court must decide whether the expert will testify to scientific knowledge that will assist the jury to understand or determine a fact in issue. Daubert at 591. That test is satisfied here. The model is meant only to provide a scientific estimate of the total smoking-related expenditures of the trust funds. It does not purport to be enough, in itself, to prove the alleged damages. The model is also subject to methodological criticism, but that is a matter for cross-examination and responding evidence from defendants. Given the limited purpose for which it has been prepared, plaintiffs' damage model appears at this point to be admissible.
Accordingly, plaintiffs' motion to admit the damage model is granted (subject, however, to the presentation of adequate foundation testimony at trial), and defendants' motion to exclude the model is denied.
'The clerk is directed to send copies of this order to all counsel of record.
Dated: December 23, 1998
William L. Dwyer
United States District Judge
DEC 23 1998
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
NO. C97-849WD
ORDER ON PLAINTIFFS' MOTION TO EXCLUDE EVIDENCE BASED UPON "DEATH BENEFIT" THEORY
THE NORTHWEST LABORERS-EMPLOYERS HEALTH & SECURITY TRUST FUND and its TRUSTEES, et al.,
Plaintiffs,
PHILIP MORRIS, INCORPORATED, et al., Defendants.
Plaintiffs' motion to exclude evidence based upon the so-called "death benefit" theory seeks, in substance, to exclude evidence that defendants would offer on the issue of "but for" causation, The motion has been fully considered and is hereby denied. The clerk is directed to send copies of this order to all counsel of record. Dated: December 23, 1998
William L. Dwyer
United States District Judge
DEC 23 3 1998
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
NO. C97-849WD
ORDER ON DEFENDANTS' ALTERNATIVE MOTION TO DISMISS FOR FAILURE TO JOIN NECESSARY PARTIES
THE NORTHWEST LABORERS-EMPLOYERS HEALTH & SECURITY TRUST FUND and its TRUSTEES, et al.,
Plaintiffs,
PHILIP MORRIS, INCORPORATED, et al.,
Defendants.
In the alternative to their motion for judgment on the pleadings, defendants move, pursuant to
Fed. R. Civ. P. 12(b)(7) and 19(a), to dismiss for failure to join necessary parties. The motion has been fully considered and is hereby denied.
The clerk is directed to send copies of this order to all counsel of record.
Dated: December 23,1998,
William L. Dwyer
United States District Judge
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
NO. C97-849WD
ORDER ON PLAINTIFFS' MOTION TO STRIKE DEFENSES THE NORTHWEST LABORERS-EMPLOYERS HEALTH & SECURITY TRUST FUND and its TRUSTEES, et al.,
Plaintiffs,
V.
PHILIP MORRIS, INCORPORATED, et al., Defendants.
Plaintiffs' motion pursuant to Fed. R. Civ. P. 12(f) to strike certain pleaded defenses has been fully considered and is hereby denied without prejudice to any Rule 56 motions that may be made when the summary judgment stage is reached. The clerk is directed to send copies of this order to all counsel of record. Dated: December 23, 1998.
William L. Dwyer
United States District Judge
DEC 23 1998
UNITED STRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
NO. C97-849WD
ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS FOR FAILURE TO STATE A CLAIM
(FED, R. CIV. P. 12(c))
THE NORTHWEST LABORERS-EMPLOYERS HEALTH & SECURITY TRUST FUND and its TRUSTEES, et al.,
Plaintiffs,
V.
PHILIP MORRIS, INCORPORATED, et al,, Defendants.
The plaintiffs and class members in this case are collectively bargained-for health and welfare trusts in Washington, and their trustees. They claim to have been damaged by a variety of antitrust, RICO, and state law violations allegedly committed by the defendant tobacco companies. In their second amended complaint the plaintiffs allege a conspiracy by defendants to deceive and defraud the public and health care providers and payors such as themselves by misrepresenting the addictiveness of tobacco products and to suppress competition in the development of safer cigarettes, These acts, plaintiffs allege, were "done with the purpose and effect of... ensuring that other health care providers and payors and not defendants bore the business costs of the disease and illness caused by defendants' unsafe products." The claims pleaded are antitrust violations, RICO violations, breach of special duty, unjust enrichment, violations of the Washington Consumer Protection Act (RCW ch. 19.86), intentional interference with contractual relations, and conspiracy. Defendants move for dismissal under Fed. R. Civ. P. 12(c), All materials filed, and the arguments of counsel heard in open court on December 21, 1998, have been considered.
Rule 12(c) provides that "any party may move for judgment on the pleadings." To prevail on such a motion the moving party must clearly establish "on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." George v. Pacific-CSC Work Furlough 91 F.3d 1227, 1229 (9th Cir. 1996) (citation omitted), All well-pleaded factual allegations in the opposing parties' pleadings must be assumed to be true and all contravening assertions in the movants' pleadings must be taken to be false. See 5A Wright & Miller, Federal Practice & Procedure (2d ed.) ยง 1368, p. 520. The Rule 12(b)(6) standard applies i.e., the complaint should not be dismissed unless it appears beyond doubt that the plaintiffs could prove no set of facts 14-L support of their claims that would entitle them to relief Sheppard v. Beerman, l8 F.3d 147, 150 (2nd Cir. 1994) (citing Lonley v. Gibson, 355 U.S. 41, 45-46 (1957)).
In the present case it is entirely possible that some or all of plaintiffs' claims will be defeated on summary judgment. But we are not at the summary judgment stage The motion concerns only the pleadings, and it cannot be said that all of plaintiffs' claims will necessarily fail no matter what facts are proved. A comparable case brought by the State of Washington as plaintiff under RCW ch. 19.86 survived summary judgment and was tried for several weeks this fall in state court before being settled. 1 Because plaintiffs conceivably could prove a set of facts entitling them to relief under RCW
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1 State of [Washington v. American Tobacco Co., No, 96-2-15056-SSEA in the Superior Court of the State of Washington for King County, The state under RCW 19.86.090 may sue for damages "[w]henever. . . it is injured by reason of a violation," whereas a private party may sue if "injured in his or her business or property by a violation." The effect in the present case, if any, of this difference in wording should not be decided before a factual record has been developed.
ch. 19.86, the Rule 12(c) motion to that extent must be denied. Nothing would be gained by trying to sift through the other claims at this point because, as counsel for both sides recognized at oral argument, the course of discovery will be the same in any event. All claims will be tested under Rule 5 6 when summary judgment motions are filed; by that time, further rulings from the higher federal courts in cases of this nature should be available. 2
For the reasons stated, defendants' Rule 12(c) motion to dismiss is denied. The clerk is directed to send copies of this order to all counsel of record. Dated: December 23, 199 8,
William L. Dwyer
United States District Judge
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2 For example, the district court's decision in Oregon Laborers-Employers Health & Welfare Trust Fund - F. Supp. 2d -- (1998), is now on appeal, Ninth Circuit # 98-36024, with the final brief to be due on March 16, 1999.
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