Mount Sinai School Of Medicine v. American Tobacco Co.

880 F.2d 1520 (2nd Cir. 1989)

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Nature of the Case

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Facts

The tobacco companies (Ds) are being sued by plaintiffs (P) who allege that their decedents died of lung cancer caused by a combination of cigarette smoking and exposure to asbestos. Mount Sinai and ACS are not parties to those suits, and neither they nor members of their medical staffs are expected to be called as witnesses. The tobacco companies expect, however, that the Ps will rely on expert testimony that in turn will rely on seminal studies made by certain members of the medical staffs of Mount Sinai and ACS. The tobacco companies seek to subpoena the data underlying these studies. The Selikoff articles suggested that when cigarette smoking was combined with occupational exposure to asbestos, the risks of developing cancer increased geometrically rather than arithmetically. The authors concluded that these data suggested a synergistic relationship between the hazards of smoking and exposure to asbestos. In 1986, Reynolds served Mount Sinai and ACS with subpoenas issued by a state court in New York in connection with an action pending in state court in California (Page v. Lincoln Electric Co). These subpoenas sought all the data underlying the 1979 and 1980 Selikoff articles, as well as data underlying a 1968 article. Mount Sinai and ACS moved to quash the subpoenas in New York state court. That court, after discussing both the interests of scholars with respect to their research and the burdens of producing the data called for by the Page subpoenas, granted the motions to quash; The subpoena was not selective but was sweeping and indiscriminate. The case then gives parts of the ruling from that Page court that detail out basic and fundamental laws regarding third party production and subpoenas. There was no appeal in the Page case. These subpoenas were served in actions pending in federal court in Louisiana and Pennsylvania. Here, the tobacco companies sought fewer items than were sought in the Page subpoenas, concentrating primarily on the computer tapes storing the relevant raw data. The requested even included a provision to protect the anonymity of the study participants. Mount Sinai and ACS moved in the district court to quash the subpoenas on the grounds that (1) in light of Reynolds, the subpoenas were barred by res judicata and collateral estoppel; (2) under New York law, the data sought by the tobacco companies was subject to the absolute privilege afforded experts; and (3) even if they had no absolute privilege, the researchers enjoyed a qualified privilege and the tobacco companies had not shown that their interests outweighed the interests of researchers. In the alternative, Mount Sinai and ACS moved for a protective order allowing (a) redaction of all identifying information on the computer tapes, (b) a summary by decade of all specific dates, e.g., dates of birth, death, and employment, and (c) restrictions on access by third parties to the subpoenaed materials. They argued that under the physician-patient privilege. The district court denied the motion to quash and issued a protective order designed to preserve confidentiality. It rejected res judicata and collateral estoppel arguments on the ground that 'New York State discovery rules and rules [in federal court] are different and rejected the privilege argument on the ground that no state court precedent definitively established such a privilege. It also ruled that the redaction was not unduly burdensome and that someone other the Dr. Selikoff could perform that work. The protective order required the county of residence and prohibited all parties who received the data from seeking the identify of any individual in the study and to agree not to seek the identity of the participants. The district court eventually held Mount Sinai and ACS in contempt when they refused to comply with the orders requiring them to respond to the subpoenas. The court imposed on them a sanction of $500 for each day that they remained in contempt, but stayed enforcement of that order pending appeal. Mount Sinai and ACS contend that the district court erred in failing to give Reynolds the proper preclusive effect and in failing to recognize the state-law privileges afforded to experts and research scholars. They also contend that the district court's protective order fails to protect adequately against disclosure of confidential information.