Opinion
98 CV 3287 (JBW)
May 22, 2001
Paul J. Bschorr, Esq., New York, N.Y. Vincent R. FitzPatrick, Jr., Esq., Michael Heifter, Esq. and Heather K. McDevitt, Esq., Dewey Ballantine LLP, for Plaintiffs Blue Cross, et al.
Martha J. Talley, Esq., Dewey Ballantine LLP Washington, DC for Plaintiffs Blue Cross, et al.
Murray R. Garnick, Esq., Arnold Porter, Washington, DC and for Defendant Philip Morris, Incorporated.
Kevin J. Dunne, Esq., Sedgwick, Detert, Moran Arnold San Francisco, CA, for Defendant Phillip Morris, Incorporated.
James T. Conlon, Esq., Sedgwick, Detert, Moran Arnold New York, NY, for Defendant Phillip Morris, Incorporated.
David M. Covey, Esq., Sedgwick, Detert, Moran Arnold, New York, NY, for Defendant Brown Williamson Tobacco Corporation.
Kenneth N. Bass, Esq., Kirkland Ellis, Washington, DC, for Brown Williamson Tobacco Corporation.
Alan Mansfield, Esq., Greenberg Traurig, LLP, New York, NY, for Defendants Lorillard Tobacco Company, Lorillard, Inc.
Gary R. Long, Esq., Shook, Hardy Bacon, LLP Kansas City, MO, for Defendants Lorillard Tobacco Company, Lorillard, Inc.
Steven Klugman, Esq., Debevoise Plimpton New York, NY, for Defendant Council for Tobacco Research, U.S.A., Inc.
Barry S. Schaevitz, Esq., Jacob, Medinger Finnegan, LLP New York, NY, for Defendant Smokeless Tobacco Council, Inc.
R. Dal Burton, Esq., Womble, Carlyle, Sandridge, Rice, PLLC Atlanta, GA, for Defendants R.J. Reynolds Tobacco Co., and RJR Nabisco, Inc.
Thomas D. Schroeder, Esq., and Ursula M. Henninger, Esq., Womble, Carlyle, Sandridge, Rice, PLLC, Winston-Salem, NC, for Defendants R.J. Reynolds Tobacco Co., and RJR Nabisco, Inc.
John B. Williams, Esq., Collier, Shannon, Rill, Scott, PLLC. Washington D.C., for Defendants R.J. Reynolds Tobacco Co., and RJR Nabisco, Inc.
Thomas J. McCormack, Esq., Chadbourne Parke LLP, New York, NY, for Defendant British American Tobacco (Investments) Limited (formerly known as British-American Tobacco Company Limited).
Joseph McLaughlin, Esq., Simpson Thacher Bartlett, New York, NY, for Defendant BAT Industries P.L.C.
Bruce M. Ginsberg, Esq. Davis Gilbert, LLP, New York, NY, for Defendant Hill Knowlton, Inc.
Leonard Feiwus, Esq., Kasowitz, Benson, Torres Friedman LLP, New York, NY, for Defendants Liggest Group Inc., Liggest Myers, Inc., and Brooke Group Ltd.
Anthony R. Mansfield, Esq., Seward Kissel New York, NY, for Defendant The Tobacco Institute, Inc.
MEMORANDUM ORDER
Plaintiff having rested, defendants move for a judgement of dismissal as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. All parties move for a determination of the admissibility of coconspirator statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence.
I. Rule 50 Motion
Following defendants' Rule 50 motion for judgement as a matter of law, plaintiff agreed to the dismissal of BAT Industries, plc, the Tobacco Institute, the Council for Tobacco Research, and Hill Knowlton. The motion is denied as to all others. There appears to be sufficient proof to permit a reasonable juror to find for plaintiff against the remaining defendants. See Galdieri-Ambrosini v. Nat'l Realty Development Corp., 136 F.3d 276, 289 (2d Cir. 1998); see also Blue Cross and Blue Shield v. Philip Morris, 113 F. Supp.2d 345 (2000).
II Rule 801(d)(2)(E)
Pursuant to Rule 104(a) and 802(d)(2)(E) of the Federal Rules of Evidence, the court finds that, for purposes of the admission of evidence only, the following participants during the dates shown below were members of a single conspiracy to mislead the public with respect to health risks of cigarettes:
1. Philip Morris, Incorporated . . . . . . . . . . January 1, 1953 to April 1, 1998 2. R.J. Reynolds Tobacco Company . . . . . . . . . January 1, 1953 to April 1, 1998 3. Brown Williamson Tobacco Corp. (in its own right and as successor to American Tobacco Company) . . . . . . . . . . . January 1, 1953 to April 1, 1998 4. Lorillard Tobacco Company . . . . . . . . . . . January 1, 1953 to April 1, 1998 5. Liggett Group, Inc. (in its own right and as successor to Liggett Myers, Inc.) . . . . . . . . . . . . January 1, 1959 to April 1, 1996 6. B.A.T. Industries, plc . . . . . . . . . . . . January 1, 1976 to April 1, 1998 7. British American Tobacco Company, Ltd . . . . . January 1, 1953 to April 1, 1998 8. The Tobacco Institute . . . . . . . . . . . . . January 1, 1958 to April 1, 1998 9. Tobacco Industry Research Committee (renamed Council for Tobacco Research) . . . . . . December 1, 1953 to November 6, 1998 10. Hill Knowlton . . . . . . . . . . . . . . . December 1, 1953 to December 1, 1963Evidence of the conspiracy, of each declarant's authority and of the membership and participation of each of the ten coconspirators listed above, is supported by acts independent of statements of the coconspirators. See Fed.R.Evid. 801(d)(2) ("The contents of the statements shall be considered but are not alone sufficient to establish the declarant's authority or the existence of the conspiracy and participation therein of the declarant and the party against whom the statement is offered under subdivision (E).").
For purposes of admissibility, the alleged conspiracy to inhibit marketing of a "safer" cigarette is intertwined with and a part of the conspiracy to defraud. Statements arguably made in connection with the safer cigarette conspiracy are also admissible in connection with the conspiracy to mislead the public with respect to health risks of cigarettes. Together, the two conspiracies are "the conspiracy." No ruling is made with respect to any other conspiracy since such a ruling is unnecessary.
Any statement made by any of the ten coconspirators listed above while the coconspirator was a member of "the conspiracy" and "in furtherance of the conspiracy" is admissible against any other coconspirator. See U.S. v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999). Statements admissible against members of "the conspiracy" may be used against those who joined "the conspiracy" after the statement was made. See United States v. United States Gypsum Co., 333 U.S. 364 (1948); U.S. v. Badalamenti, 794 F.2d 821, 827-828 (2d. Cir. 1986); U.S. v. Diaz, 176 F.3d 52 (2d. Cir. 1999) (accord).
SO ORDERED