       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2       Tompkin v. Philip                       Nos. 02-3267/3309
    ELECTRONIC CITATION: 2004 FED App. 0091P (6th Cir.)           Morris, Inc., et al.
                File Name: 04a0091p.06
                                                          Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
                                                                             Judges.
UNITED STATES COURT OF APPEALS
                                                                                 _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                     COUNSEL

JOCELYN TOMPKIN ,                 X                       ARGUED: A. Russell Smith, A. RUSSELL SMITH LAW
Administratrix with will           -                      OFFICES, Akron, Ohio, for Appellant. Walter L. Cofer,
                                   -                      SHOOK, HARDY & BACON, Kansas City, Missouri, for
annexed of the Estate of                                  Appellees. ON BRIEF: A. Russell Smith, A. RUSSELL
                                   -  Nos. 02-3267/3309
David Tompkin, deceased,           -                      SMITH LAW OFFICES, Akron, Ohio, for Appellant. Walter
           Plaintiff-Appellant/ >                         L. Cofer, Craig Proctor, SHOOK, HARDY & BACON,
                                   ,
               Cross-Appellee, -                          Kansas City, Missouri, Mary M. Bittence, Diane P. Chapman,
                                                          BAKER & HOSTETLER, Cleveland, Ohio, Kenneth J.
                                   -                      Walsh, Tyler L. Mathews, MCDONALD HOPKINS,
           v.                      -                      Cleveland, Ohio, Patrick M. McLaughlin, Colin R. Jennings,
                                   -                      MCLAUGHLIN & MCCAFFREY, Cleveland, Ohio, James
PHILIP MORRIS USA, INC.,           -                      E. Milliman, Benjamin S. Shively, MIDDLETON &
                                   -
formerly known as PHILIP                                  REUTLINGER, Louisville, Kentucky, Michael J. Suffern,
                                   -
MORRIS, INC.; LIGGETT                                     DINSMORE & SHOHL, Cincinnati, Ohio, for Appellees.
                                   -
GROUP, INC.; LORILLARD             -                                             _________________
TOBACCO COMPANY ; THE              -
AMERICAN TOBACCO                   -                                                 OPINION
COMPANY ,                          -                                             _________________
                                   -
        Defendants-Appellees/ -
                                                            ROGERS, Circuit Judge. Plaintiff Jocelyn Tompkin sued
             Cross-Appellants. -                          the defendant tobacco companies, alleging that her husband,
                                 N                        David Tompkin, died as a result of smoking cigarettes sold by
      Appeal from the United States District Court        the defendants.1 Tompkin asserted statutory and common
       for the Northern District of Ohio at Akron.        law products liability claims. After this court reversed the
No. 94-01302—David D. Dowd, Jr., Senior District Judge.
                                                              1
              Argued: September 19, 2003                       To mpk in sued both in her ind ividual capacity and as executrix of
                                                          her husband’s estate. The original defendants were Philip Morris, Inc.,
          Decided and Filed: March 30, 2004               Liggett Group, Inc., Lorillard To bacco C omp any, The American Tobacco
                                                          Comp any, and Lorillard, Inc. Tompkin voluntarily dismissed her case
                                                          against Lorillard, Inc.

                            1
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district court’s grant of summary judgment in favor of the             1959-1961         1.5 packs of Herbert Tareyton cigarettes
defendants, the case proceeded to trial. A jury found for the                            per day
defendants, and Tompkin now appeals.
                                                                       1961-1964         Between 2 and 3 packs of Kent cigarettes
  Tompkin raises three issues on appeal. Specifically, she                               per day
claims that the district court erred by (1) admitting “surprise”
testimony from a defense expert that there was an                      1964-1965         Between 2 and 3 packs of Lark cigarettes
“association” between Mr. Tompkin’s asbestos exposure and                                per day.2
an elevated risk of lung cancer, (2) excluding certain evidence
that she proffered (in particular, evidence concerning research       Mr. Tompkin was exposed to asbestos and other pollutants
and public-relations groups associated with the tobacco            in the course of his career. After graduating from high school
industry, evidence concerning non-party tobacco companies,         in 1952, he worked at Stalwart Rubber Company in the curing
evidence from prior tobacco-related proceedings, and               room. From 1953 to 1957, he worked as a bricklayer
evidence concerning the defendants’ conduct after the date         apprentice, and from 1957 to 1984, he worked as a bricklayer.
that her husband quit smoking), and (3) refusing to charge the     In 1984, he started a construction company. During this
jury on her “consumer expectations” claim under the Ohio           work, he was “heavily exposed” to asbestos, and he was
Products Liability Act. Because Tompkin has not shown that         exposed to brick dust, cement dust, mortar, lime, and rubber-
she was prejudiced by any of these alleged errors, we affirm       curing effluvia. Finally, Mr. Tompkin had a family history of
the judgment of the district court.                                cancer.

                      BACKGROUND                                     On June 26, 1992, Mr. Tompkin was diagnosed with lung
                                                                   cancer. He died on February 12, 1996, at the age of 61.
1. David Tompkin’s History of Smoking and Lung Cancer
                                                                   2. Tompkin’s Lawsuit and the Trial
  David Tompkin began smoking in 1950, at the age of
sixteen, and he quit in 1965, at the age of thirty-one. His           On June 24, 1994, Tompkin and her husband, then still
smoking history was as follows:                                    alive, filed suit against the defendants in the United States
                                                                   District Court for the Northern District of Ohio. Tompkin
  Year             Amount and Brand                                was substituted for her husband, as administratrix of his
                                                                   estate, after his death. In her amended complaint, Tompkin
  1950-1951        4 to 6 Old Gold cigarettes per day              asserted the following claims: (1) strict liability; (2)
                                                                   negligent, willful and wanton misconduct; (3) fraud and
  1951-1954        4 to 6 Philip Morris cigarettes per day
  1954-1957        6 to 8 Pall Mall cigarettes per day                  2
                                                                         During the relevant time period, The American Tob acco Com pany
                                                                   made Pall Mall and Herbert Tareyton cigarettes, Liggett Group, Inc. made
  1957-1959        10 Chesterfield cigarettes per day              Lark and Chesterfield cigarettes, Lorillard Tobacco C ompany mad e Old
                                                                   Go ld and K ent cigarettes, and Philip Mo rris, of course, mad e Philip
                                                                   Morris cigarettes.
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misrepresentation; (4) strict liability for misrepresentation; (5)   to instruct the jury on Tompkin’s “consumer expectations”
express warranty; (6) implied warranty; (7) conspiracy and           claim, reasoning that “there was no testimony” to support the
concerted action; and (8) derivative claims for wrongful death       claim.
and loss of consortium.
                                                                       At trial, Tompkin presented fourteen witnesses, including
   On August 3, 1998, the district court granted summary             family and close friends of her husband. Tompkin and two of
judgment in favor of the defendants. It held that Tompkin’s          her daughters testified about their relationships with
first five claims were governed by the Ohio Product                  Mr. Tompkin and about the effect of his cancer on him and
Liabilities Act (“OPLA”) and that OPLA’s “common                     his family. Similarly, Mr. Tompkin’s business partner, and
knowledge” doctrine—which bars claims for damages from               long-time coworker, testified about Mr. Tompkin’s work and
risks which are “common knowledge”—applied to these                  his smoking habits. Finally, in a videotaped deposition,
claims. Tompkin v. Am. Brands, Inc., 10 F. Supp. 2d 895,             Mr. Tompkin testified about his history of smoking, his (lack
899-905 (N.D. Ohio 1998). It also held that OPLA                     of) awareness of the dangers of smoking, his medical history,
preempted breach of implied warranty claims and that                 his history of employment, and the impact of his cancer on his
Tompkin failed to establish that her husband relied on any           personal and professional life.
statements by the defendants, as required to sustain her fraud
and conspiracy claims. Id. at 900, 909-10. Finally, it held             Tompkin also presented testimony from the physicians who
that, by definition, Tompkin’s derivative claims failed when         treated her husband. Mr. Tompkin’s family physician, his
the underlying claims failed. Id. at 911.                            two oncologists, and his surgeon testified about the diagnosis
                                                                     and treatment of his lung cancer. Additionally, his oncologist
  On July 24, 2000, this court reversed, in part, the district       opined, as the treating physician, not as an expert witness,
court’s grant of summary judgment. We concluded that                 that cigarette smoking caused Mr. Tompkin’s lung cancer.
Tompkin had established a genuine issue of material fact on
the extent of “common knowledge” of the nexus between                  Tompkin also presented expert testimony on her “failure to
smoking and lung cancer, and we reversed the grant of                warn” claim, the defendants’ “common knowledge” defense,
summary judgment on her OPLA claims. Tompkin v. Am.                  and the cause of Mr. Tompkin’s cancer. Dr. Alan Blum, a
Brands, 219 F.3d 566, 571-75 (6th Cir. 2000). Additionally,          professor of family medicine at the University of Alabama
we reversed the district court’s holding that OPLA preempted         School of Medicine, Tuscaloosa branch, testified in support
Tompkin’s breach of implied warranty claim. Id. at 576.              of Tompkin’s failure to warn claim. A self-styled historian,
However, we affirmed the district court’s holding that OPLA          he traced the history of medical literature on the connection
preempted her negligent, willful and wanton misconduct               between smoking and lung cancer. He concluded that by
claim. Id. at 575.                                                   1939 “the case was closed that smoking was the leading cause
                                                                     of lung cancer.” Based on this conclusion, he opined that (1)
  The trial commenced on September 25, 2001, and                     the defendants “knew in 1939, or in the exercise of reasonable
comprised approximately seven days of testimony. At trial,           care should have known in 1939, about a risk that was
Tompkin advanced a “failure to warn” claim under OPLA, a             associated with their cigarettes and lung cancer,” and (2) the
“consumer expectations” claim under OPLA, and a breach of            defendants “should have issued warnings or instructions in
implied warranty claim. However, the district court refused          1939 as to the risks of smoking tobacco, particularly
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cigarettes, and insofar as its causing lung cancer is              Dr. David Sidransky, the Director of Head, Neck, and
concerned.”                                                      Cancer Research at Johns Hopkins University, also testified
                                                                 about the cause of Mr. Tompkin’s cancer. Sidransky
  Tom Smith, the director of the general social survey at the    performed a “Loss of Heterozygosity” analysis (an “LOH”
National Opinion Research Center at the University of            analysis) on tissue samples from Mr. Tompkin. He explained
Chicago, testified in response to the defendants’ common         that chromosomal changes occur in cancerous cells (including
knowledge defense. He reviewed polling conducted between         the loss of chromosomal arms that contain growth
1950 and 1965 on the connection between smoking and lung         suppressing genes) and that certain of these changes occur
cancer. In particular, he described six Gallup polls which,      much more frequently in cancer victims who have smoked
averaged together, showed that only 45% of the respondents       than in cancer victims who have not smoked. Applying LOH
believed that smoking caused lung cancer. Based on this          analysis, he determined that many of these chromosomal
investigation, he opined that “the ordinary person with          changes associated with smoking had occurred in cancer cells
ordinary knowledge common to the community” did not              from Mr. Tompkin. Based on this finding, he opined that
recognize “the nature and the extent of the link between         “smoking was a major contribution to [Mr. Tompkin’s] lung
smoking cigarettes and lung cancer between the years 1950        cancer.”
and 1965.” He explained that “based on the particular data
here from Gallup as well as other data we’ve looked at about       Finally, Dr. John Burke, a retired professor of economics,
what causes cancer and people’s beliefs about what harms         testified about Mr. Tompkin’s loss of future earning capacity.
come from smoking, the data clearly indicates that people did
not make a strong link in that period between smoking and          The defendants presented four witnesses, all of whom were
lung cancer.”                                                    experts. Dr. Joan Hoff, a professor of history at Ohio
                                                                 University, testified in support of the defendants’ common
   Dr. Joseph Tomashefski, a pathologist, testified about the    knowledge defense. At the request of defense counsel, she
cause of Mr. Tompkin’s cancer. He testified that, in             had researched discussions of smoking and lung cancer in
connection with the autopsy of Mr. Tompkin, he reviewed          national magazines, regional newspapers, legislative
Mr. Tompkin’s history of smoking and ordered an asbestos         materials, and educational materials during the period from
fiber burden test on tissue samples, which revealed “a high      1950 to 1965 to determine “commonly held attitudes or
load of asbestos fibers in [Mr. Tompkin’s] lungs.” Based on      common knowledge or common information available to the
this information, he concluded that Mr. Tompkin’s cancer         average person about the link between lung cancer and
was “due to the combined effect of his cigarette smoking and     cigarette smoking.” Based on her research, she opined that
his exposure to asbestos.” He explained that “asbestos           “the link between cigarette smoking and lung cancer was
interacts with cigarette smoking by a process that we call       common knowledge” in the United States and, in particular,
synergy” whereby “they have an effect which is beyond an         in Ohio between 1950 and 1965.
additive effect of each of their potencies.” He also testified
that asbestos was “a relatively weak carcinogen,” and that he      The remaining defense witnesses concentrated on the
had never seen a case of lung cancer involving asbestos alone    proximate cause issue. Dr. David Parkinson, a professor of
without any history of smoking.                                  medicine at the State University of New York at Stony Brook
                                                                 and Director of the Long Island Occupational and
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Environmental Health Center, testified about Mr. Tompkin’s         asbestos exposure to the incidence of the disease in the non-
exposure to various carcinogens. He asserted that a smoker         smoking “cohort” and the “cohort” without asbestos
can reduce his risk of lung cancer by quitting smoking, but        exposure. Bradley explained that a relative risk of 1.0 is the
that “asbestos is very resistant to elimination by the body, and   baseline—there is no increased, or decreased, risk from the
it is not possible to cut down the risk from cumulative            exposure—and that the relative risk must be at least 2.0 to
asbestos exposure.” Based on his review of Mr. Tompkin’s           support a conclusion that the exposure is “associated” with
deposition and medical records, he opined that Mr. Tompkin         the disease. He further explained that this method of analysis
was likely exposed to asbestos and other carcinogens while         establishes only a statistical “association”; it does not
working in the curing department at Stallworth Rubber              establish individual causation.
Company and while working as a bricklayer on certain
construction sites. He further opined that “the most                 Bradley concluded that Mr. Tompkin’s cancer was not
significant exposure that induced Mr. Tompkin’s lung cancer        “associated” with smoking but was “associated” with asbestos
was his asbestos exposure” and that, “because of the small         exposure. He determined that the relative risk from smoking
amount of cigarette smoking, and the length of time that           was 1.59, and, based on this figure, he opined that
passed after he had stopped smoking,” smoking was not a            Mr. Tompkin’s “smoking history was not associated with an
proximate cause of his cancer.                                     increased risk of developing lung cancer.” Similarly, he
                                                                   determined that the relative risk of smoking to individuals
  Dr. Edwin Bradley, a biostatistician, testified about the        with asbestos exposure was 1.56, and, based on this figure, he
epidemiological association between lung cancer and Mr.            opined that Mr. Tompkin’s smoking did not add to his risk of
Tompkin’s asbestos exposure and smoking. Using data                developing lung cancer “[a]bove that risk that he would have
collected by the American Cancer Society, he compared the          had from asbestos exposure alone.”3 Conversely, he
incidence of lung cancer in a “cohort” of individuals with         determined that the relative risk from asbestos exposure was
smoking histories similar to Mr. Tompkin to the incidence of       between 2.65 and 5.91,4 and he opined that there was “an
lung cancer in a “cohort” of individuals with no history of
smoking. Using this same data, he also compared the
incidence of lung cancer in a “cohort” of individuals with              3
                                                                         Bradley further testified that smoking and asbestos exposure had an
smoking histories and asbestos exposure similar to                 “additive” effect— meaning that an individual’s risk of disease is simply
Mr. Tompkin with a “cohort” of individuals with similar            the sum of the risks from the respective expo sures— but no t a
asbestos exposure but who never smoked. Finally, using the         “multiplicative” or “synergistic” effect— meaning that the exposures act
                                                                   “together to make it worse than it would be if it was exposed to either one
same data, he compared the incidence of lung cancer in a           or the sum of the 2.”
“cohort” of individuals with smoking histories and asbestos
exposure similar to Mr. Tompkin with the incidence of lung              4
                                                                          He was unable to offer a precise figure because the extent of Mr.
cancer in a “cohort” of individuals with no asbestos exposure.     To mpk in’s asbestos exposure was not known. 2.65 represented the
                                                                   relative risk (to non-smokers) of any asbestos exposure, as calculated by
  He then calculated the “relative risk” of lung cancer from       Bradley using the American Cancer Society data . 5.91 represented the
Mr. Tompkin’s level of smoking and asbestos exposure,              relative risk of lung cancer from a level o f asbestos exp osure sufficient to
                                                                   cause asbestosis, a figure derived from a published study. Bradley
meaning the ratio of the incidence of the disease in the           testified that, because Mr. Tompkin had an asbestos fiber burden
“cohorts” with Mr. Tompkin’s smoking history and/or                consistent with asbestosis, “his relative risk in my opinion would be
Nos. 02-3267/3309                            Tompkin v. Philip         11     12   Tompkin v. Philip                    Nos. 02-3267/3309
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association between the exposure of the type to asbestos that                 October 22, 2001, Tompkin moved for a new trial, arguing
Mr. Tompkin had [and] an elevated risk of developing lung                     that the district court had erred by (1) permitting “surprise”
cancer.”                                                                      testimony from Dr. Bradley, (2) excluding evidence
                                                                              concerning organizations affiliated with the tobacco industry,
  Tompkin objected to Bradley’s testimony concerning the                      (3) excluding evidence concerning non-party tobacco
relative risk from asbestos exposure, and to the use of                       companies, (4) excluding evidence from prior tobacco-related
demonstrative exhibits in connection with this testimony, on                  cases, (5) excluding evidence concerning punitive damages
the ground that Bradley had not disclosed this information in                 and failing to charge the jury on punitive damages, (6)
his expert report. The district court overruled Tompkin’s                     excluding evidence concerning post-1965 activities of the
objection.                                                                    defendants, and (7) failing to charge the jury on Tompkin’s
                                                                              consumer expectations theory under OPLA.
   Finally, Dr. Peter McCue, the chief of anatomic pathology
and a professor of pathology at Thomas Jefferson University                      On January 30, 2002, the district court denied Tompkin’s
Hospital in Philadelphia, testified about his examination of                  motion for a new trial. The court concluded that it had erred
tissue samples from Mr. Tompkin. He testified that he did                     by failing to sustain Tompkin’s timely objections to (1)
not detect any of the normal smoking-related changes, such                    Dr. Bradley’s testimony that asbestos was “associated” with
as damage to the bronchial epithelium, pigment-laden                          Mr. Tompkin’s cancer because, the court determined, the
macrophages, and mucous lining hyperplasia, in Mr.                            testimony directly conflicted with Dr. Bradley’s statement in
Tompkin’s pathology specimens.5 Conversely, he testified                      his expert report that “it is not possible to determine to a
that he did detect asbestos fibers, quartz dust, and mineral                  reasonable degree of scientific certainty which of the risk
fibers, as well as asbestos-induced disease process, in the                   factors, smoking or asbestos exposure (or other risk factors),
specimens. Based on this analysis, he opined that Mr.                         contributed to Mr. Tompkin’s lung cancer,” and (2) the
Tompkin’s cancer “most likely resulted from his occupational                  introduction of exhibits—specifically, three bar graphs that
exposure to silicates and asbestos” and that his examination                  illustrated Dr. Bradley’s testimony concerning the relative
revealed “no pathological or biochemical evidence . . . that                  risk of lung cancer associated with Mr. Tompkin’s asbestos
showed that he had an effect from cigarette smoking.”                         exposure—which were not identified in Dr. Bradley’s expert
                                                                              report and which contained information not disclosed in the
  The jury found for the defendants, and on October 9, 2001,                  expert report. However, the court concluded that its errors
judgment was entered in favor of the defendants. On                           did not justify a new trial, reasoning that the errors were not
                                                                              prejudicial as Dr. McCue’s testimony “was far more
                                                                              devastating than Dr. Bradley’s testimony.” The court’s
somewhere between the 2.65 and 5.91 [sic], probably closer to the 5.91        memorandum opinion denying Tompkin’s new trial motion
level.”                                                                       did not discuss Tompkin’s other arguments.
    5
      Additiona lly, he asserted that, after 15 to 20 years of non-smoking,     On March 1, 2002, Tompkin filed a timely notice of appeal.
a former smoker’s risk of lung cancer returns “almost down to baseline or
down to a normal population.” He also noted that P53 and K-Ras studies
performed by Dr. Tomashefski, which test for genetic changes associated
with smo king, were negative.
Nos. 02-3267/3309                      Tompkin v. Philip       13    14      Tompkin v. Philip                    Nos. 02-3267/3309
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                         ANALYSIS                                    2.     The District Court’s Admission of the “Surprise”
                                                                            Testimony of Dr. Bradley
1. Standard of Review
                                                                       The district court did not abuse its discretion in denying
  This court reviews a district court’s denial of a motion for       Tompkin’s motion for a new trial based on “surprise”
a new trial under an abuse of discretion standard. Tobin v.          testimony by Dr. Edwin Bradley, a defense expert on the
Astra Pharm. Prods., Inc., 993 F.2d 528, 542 (6th Cir. 1993).        causation issue. The district court properly concluded that
“Abuse of discretion is defined as a definite and firm               Tompkin did not meet her burden of demonstrating prejudice
conviction that the trial court committed a clear error of           from the admission of Bradley’s testimony.
judgment.” Id. (quoting Logan v. Dayton Hudson Corp., 865
F.2d 789, 790 (6th Cir. 1989)). A district court abuses its            Tompkin argues that Bradley failed to disclose in his expert
discretion when it relies on clearly erroneous findings of fact,     report his testimony that there was an “association” between
or when it improperly applies the law or uses an erroneous           Mr.Tompkin’s level of asbestos exposure and lung cancer. In
legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608,          his expert report, Bradley wrote, in relevant part,
615 (6th Cir. 1995).
                                                                          12. Epidemiology addresses whether a disease is
  Moreover, a motion for a new trial will not be granted                      statistically associated with an exposure in a
unless the moving party suffered prejudice. Morales v. Am.                    population, not in individuals. The question of
Honda Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998);                     individual causation, sometimes referred to as
Erskine v. Consol. Rail Corp., 814 F.2d 266, 272 (6th Cir.                    specific causation, is beyond the domain of the
1987) (holding that a new trial will not be granted on the                    science of epidemiology. Even in populations, the
ground that surprise evidence was admitted unless the moving                  existence of a statistical association does not
party was prejudiced). “Even if a mistake has been made                       necessarily mean that two events are causally
regarding the admission or exclusion of evidence, a new trial                 related.     Epidemiology provides information
will not be granted unless the evidence would have caused a                   relevant to reaching a conclusion regarding general
different outcome at trial.” Morales, 151 F.3d at 514. “The                   association, but cannot alone prove causation in an
burden of showing harmful prejudice rests on the party                        individual.
seeking the new trial.” Tobin, 993 F.2d at 541; see also
Erksine, 814 F.2d at 272 (“In order to prevail on his motion              ***
for a new trial, plaintiff must show that he was prejudiced and
that failure to grant a new trial is inconsistent with substantial        14. Statistical associations between exposure and
justice.” (citation omitted)).                                                disease (or mortality) from epidemiologic studies are
                                                                              usually measure as relative risks (“RRs”) or odds
                                                                              ratios (“ORs”). A relative risk is defined as the ratio
                                                                              of the incidence of disease (or mortality) in the
                                                                              exposed group to the incidence of disease (or
                                                                              mortality) in the unexposed group. For example, if
                                                                              the incidence of cancer among the exposed group is
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     10 in 100 and the incidence among the unexposed                   that there is no statistical association between
     group is 5 in 100, then the relative risk is 2.0                  Mr. Tompkin’s smoking from 1950 to 1965 and an
     (10/100 ÷ 5/100). . . .                                           increased risk of death from lung cancer in 1996. It
                                                                       is a general scientific principle that when no
 ***                                                                   statistically significant association is found between
                                                                       an exposure and a disease, the question of causation
 17. I regard relative risks below 2.0 as too weak to                  is moot.
     support a conclusion that an exposure is associated
     with a disease.                                              ***
 ***                                                              39. I expect to opine to a reasonable degree of scientific
                                                                      certainty that the epidemiological studies on
 33. I have performed generally accepted statistical                  asbestos exposure and cigarette smoking do not
     analyses of the data in this file addressing the                 establish that the best model for describing the
     question of whether there is an increased risk of lung           relative risks is multiplicative. . . .
     cancer in the group of males (“cohort”) enrolled in
     [a large epidemiological study conducted by the              40. I also examined the CPS-II data file to investigate
     American Cancer Society called Cancer Prevention                 the association between asbestos exposure, smoking
     Study II (“CPS-II”)] who had quit smoking between                and lung cancer.
     the ages of 26 and 34, had remained abstinent for
     between 27 and 35 years, and had a smoking history           41. I have performed generally accepted statistical
     of 17 to 48 pack-years before quitting. This                     analyses of the data in this file addressing the
     smoking history is similar to that of Mr. Tompkin,               question of whether there is an increased risk of lung
     who smoked between 1950 and 1965, at which time                  cancer in the group of males (“cohort”) enrolled in
     he quit.                                                         CPS-II who indicated on the CPS-II questionnaire
                                                                      that they had been exposed to asbestos and had quit
 34. . . . The comparison group consisted of males in the             smoking for between 27 and 35 years. This
     CPS-II study who had never smoked.                               smoking and asbestos exposure history is similar to
                                                                      that of Mr. Tompkin.
 35. Based on this analysis, I will testify that I could find
     no statistically significant association for the CPS-II      42. . . . The comparison cohort consisted of males in the
     cohort described in paragraph 33 above and an                    CPS-II study who indicated on the CPS-II
     increased risk of lung cancer. I will also testify that          questionnaire that they had been exposed to
     the relative risk I calculated, in addition to not being         asbestos, and had never smoked.
     statistically significant, was less than 2.0.
     Consequently, an attributable risk calculation shows         43. Based on this analysis, I will testify that I could find
     that more probably than not, smoking is not related              no statistically significant association for the CPS-II
     to lung cancer for this cohort. Further, I will testify          cohort described in paragraph 41 above and an
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      increased risk of lung cancer. I will also testify that     cohort of persons who never smoked but who were exposed
      the relative risk I calculated, in addition to not being    to asbestos against a cohort of persons who never smoked and
      statistically significant, was less than 2.0.               who were never exposed to asbestos—as 2.65. J.A. at 2374.
      Consequently, an attributable risk calculation shows        He further testified that the medical literature sets the relative
      that more probably than not, smoking is not related         risk of lung cancer for patients who have asbestosis, and thus
      to lung cancer for this cohort. Further, I will testify     have a high level of asbestos exposure, at 5.91. J.A. at 2376.
      that even with consideration of his asbestos                Thus, he concluded that Mr. Tompkin’s relative risk of
      exposure, there is no statistical association between       developing lung cancer from asbestos exposure was between
      Mr. Tompkin’s smoking from 1950 to 1965 and an              2.65 and 5.91; and, as a pathological exam performed by Dr.
      increased risk of death from lung cancer in 1996. It        Tomashefski, one of the plaintiff’s experts, revealed a fiber
      is a general scientific principle that when no              burden in Mr. Tompkin’s lungs consistent with asbestosis, his
      statistically significant association is found between      relative risk was “probably closer to the 5.91 level.” J.A. at
      an exposure and a disease, the question of causation        2375-77.
      is moot.
                                                                     In connection with this testimony, Bradley used three
  44. Based on further analyses of the CPS-II data, I will        exhibits, each titled “Analysis of Mr. Tompkin’s Risk
      testify that the joint risk of asbestos exposure and        Profile,” which illustrate his findings on Mr. Tompkin’s
      smoking on the development of lung cancer is best           relative risk of developing lung cancer from smoking and
      described by an additive, not multiplicative, model.        from asbestos exposure. The first exhibit was a bar graph
                                                                  depicting Mr. Tompkin’s relative risk from smoking as 1.59,
  45. I will also testify that it is not possible to determine    a figure which the graph describes as “Not Statistically
      to a reasonable degree of scientific certainty which        Significant.” J.A. at 837. The second exhibit was a bar graph
      of the risk factors, smoking or asbestos exposure (or       depicting Mr. Tompkin’s relative risk from smoking as 1.59
      other risk factors), contributed to Mr. Tompkin’s           and his relative risk from asbestos as 2.65, figures which the
      lung cancer, when the only available data are from          graph describes as “Not Statistically Significant” and
      epidemiological studies.           The difficulties of      “Statistically Significant,” respectively. J.A. at 838. The
      disentangling the relationship among several factors        third exhibit was a bar graph depicting Mr. Tompkin’s
      while attempting to control for confounding have            relative risk from smoking as 1.59, his relative risk from
      been recognized in the scientific community.                asbestos as 2.65, and his relative risk from asbestosis as 5.91,
                                                                  figures which are labeled “Not Statistically Significant” and
J.A. at 756-61 (emphasis in original).                            “Statistically Significant,” respectively. J.A. at 839. In the
                                                                  second and third exhibits, the bar representing Mr. Tompkin’s
  At trial, Bradley opined that there was “an association         relative risk from smoking is colored blue, and the bars
between the exposure of the type to asbestos that                 representing his relative risk from asbestos and asbestosis are
Mr. Tompkin had [and] an elevated risk of developing lung         colored red. J.A. at 838-39.
cancer.” J.A. at 2379. He testified that, using the data in
CPS-II, he calculated the relative risk of developing lung          During the trial, the district court overruled Tompkin’s
cancer due to asbestos exposure alone—i.e., he measured a         objection to Bradley’s testimony concerning the relation
Nos. 02-3267/3309                     Tompkin v. Philip      19    20   Tompkin v. Philip                    Nos. 02-3267/3309
                                      Morris, Inc., et al.              Morris, Inc., et al.

between Mr. Tompkin’s exposure to asbestos and his lung            Further, she asserts that she was prejudiced by this “surprise”
cancer. After the verdict, the district court denied Mr.           testimony because her counsel were unable to prepare
Tompkin’s motion for a new trial, which motion contended,          adequately for cross-examination of Bradley and were unable
in part, that Bradley had not disclosed in his expert report his   to present responsive testimony, and because Bradley’s
testimony that Mr. Tompkin’s asbestos exposure gave him an         testimony “dramatically bolstered defendants’ theory of
elevated risk of developing lung cancer. In denying the            causation” (“essentially the only defense in the case”).
motion, the district court concluded that it had erred in          Appellant’s Br. at 11, 13.
overruling Tompkin’s objection, as the defendants had
violated Federal Rule of Civil Procedure 26(a)(2)(B) by not           The defendants counter that Bradley properly disclosed the
disclosing the exhibits and the related testimony in Bradley’s     testimony in his expert report. They note that paragraph 36
report. However, the court further concluded that its error        of the report states that Bradley “will testify about the
was not prejudicial, given the strength of the defendants’         epidemiological studies on asbestos exposure, cigarette
other witnesses. Specifically, the court found                     smoking and lung cancer,” and that paragraph 41 advised that
                                                                   Bradley analyzed a cohort with a smoking and asbestos
  the testimony of the defense witness, Dr. McCue, was             history similar to that of Mr. Tompkin. J.A. at 760. They
  well documented and supported by his examination of              also argue that paragraph 45 is not inconsistent with
  the slides of the decedent’s lung tissue and also                Bradley’s testimony, explaining that paragraph 45 simply
  supported by the negative findings of Dr. Tomashefski as         states that an epidemiologist cannot offer an opinion as to
  to the P53 and K-Ras genes. In the Court’s view, that            which risk factor caused Mr. Tompkin’s cancer, and that
  testimony, which followed Dr. Bradley’s testimony, was           Bradley simply testified to a statistical association between
  far more devastating than Dr. Bradley’s testimony about          Mr. Tompkin’s cancer and asbestos exposure.
  epidemiology associations.
                                                                     The defendants argue, in the alternative, that any violation
J.A. at 874.                                                       of Rule 26(a) was not prejudicial. They contend that the
                                                                   testimony was disclosed to Tompkin during Bradley’s
   On appeal, Tompkin challenges the admission of Bradley’s        deposition and in Bradley’s reliance materials. They also
testimony that Mr. Tompkin’s relative risk of developing           contend that Tompkin’s was not harmed by the admission of
cancer from asbestos exposure was between 2.65 and 5.91            the testimony, given that Tompkin admitted that asbestos
and the use of the exhibits in connection with this testimony.     contributed to her husband’s cancer and that two other
She contends that, as the district court concluded, the            defense experts, Drs. McCue and Parkinson, testified that
defendants violated Federal Rule of Civil Procedure                asbestos was a cause of Mr. Tompkin’s cancer.
26(a)(2)(B) by not disclosing this testimony and the exhibits
in Bradley’s expert report. She argues that this testimony was       Rule 26(a) of the Federal Rules of Civil Procedure requires
directly inconsistent with Bradley’s report, which stated,         an expert witness to provide a written reporting containing,
among other things, that “it is not possible to determine to a     inter alia, (1) “a complete statement of all opinions to be
reasonable degree of scientific certainty which of the risk        expressed and the basis and reasons therefor,” and (2) “any
factors, smoking or asbestos exposure (or other risk factors),     exhibits to be used as a summary of or support for the
contributed to Mr. Tompkin’s lung cancer.” J.A. at 761.            opinions.” Fed. R. Civ. P. 26(a)(2)(B). Rule 37 provides that
Nos. 02-3267/3309                              Tompkin v. Philip          21     22       Tompkin v. Philip                          Nos. 02-3267/3309
                                               Morris, Inc., et al.                       Morris, Inc., et al.

“[a] party that without substantial justification fails to disclose              Bradley will testify about the increased risk of lung cancer
information required by Rule 26(a) . . . is not, unless such                     from asbestos exposure.7
failure is harmless, permitted to use as evidence at trial . . .
any witness or information not so disclosed.” Fed. R. Civ. P.                       However, Tompkin has not shown that the district court’s
37(c)(1). Rule 37 further provides that “[i]n addition to or in                  finding that she was not prejudiced by the admission of the
lieu of this sanction, the court . . . may impose other                          testimony was clearly erroneous. Other defense experts
appropriate sanctions.” Id.                                                      testified about the connection between Mr. Tompkin’s cancer
                                                                                 and his asbestos exposure—in terms of specific causation
   Clearly, the defendants failed to comply with Federal Rule                    rather than mere “associations.” Dr. Parkinson, a physician
of Civil Procedure 26(a). It is true the testimony in question                   specializing in occupational medicine,8 opined that “the most
was arguably consistent with paragraph 45 of Bradley’s                           significant exposure that induced Mr. Tompkin’s lung cancer
report. On one reading, paragraph 45 states that it is not                       was his asbestos exposure over the many years he was
possible to determine from epidemiological studies whether                       exposed to asbestos” and that smoking was not a proximate
smoking or asbestos was the medical cause of Mr. Tompkin’s                       cause of Mr. Tompkin’s lung cancer. J.A. at 2297, 2306.
cancer, whereas, in the challenged testimony, Bradley opined                     Dr. Peter McCue, a surgical pathologist, testified that he
that there was a statistical association between lung cancer                     examined tissue samples from Mr. Tompkin’s lungs and
and Mr. Tompkin’s level of asbestos exposure. In any event,                      found evidence of damage from exposure to asbestos and
the report does not state that Bradley will testify that Mr.                     mineral fibers but no evidence of damage from smoking. J.A.
Tompkin had an elevated risk of developing lung cancer due                       at 2520-22, 2527, 2531-34. He opined that Mr. Tompkin’s
to his exposure to asbestos (let alone that his relative risk was
between 2.65 and 5.91), and Rule 26(a) would require such a
statement.6 Paragraphs 36 through 43, which the defendants                            7
argue disclose the testimony, merely state (1) in general                               The defendants have not cited any authority supporting their
terms, that Bradley will testify about the association between                   argument that, by turning over materials supporting his testimony as part
                                                                                 of his Rule 26(a )(2)(A) reliance materials (i.e., the “data or other
asbestos exposure, cigarette smoking, and lung cancer, (2)                       information considered by the witness in forming the opinions”), Bradley
that Bradley will testify that an additive, rather than a                        was relieved of the additional obligation under Rule 26(a)(2)(A) to
multiplicative, model best describes the joint risk of smoking                   provide “a complete statement of all opinions to be expressed.” Nor,
and asbestos exposure, and (3) that Bradley will testify that                    desp ite their insistence to the contra ry, have the defendants identified any
the relative risk of Mr. Tompkin’s level of smoking to                           deposition testimony in which Bradley reveals that he will testify that Mr.
                                                                                 To mpk in had an increased risk of develo ping lung cancer due to his
someone who has been exposed to asbestos is less than 2.0.                       asbestos exposure.
J.A. at 760-61. None of this information alerts the reader that
                                                                                      8
                                                                                       Dr. Parkinson is a professor of medicine at the State University of
                                                                                 New York and the director of the Long Island Occupational and
                                                                                 Environmental Health Center. J.A. at 2278. He testified that he helped
                                                                                 write the State of California’s asbestos exposure standard, that he runs a
                                                                                 program for union workers in the building trades who have been exposed
    6
                                                                                 to asbestos, and that he has “a very good working knowledge of the
      Nor does Brad ley’s expert report list the exhibits, as Rule 26 (a) also   epidemiology of asbestos-related disease.” J.A. at 2278, 2283, 2285,
requires. Fed . R. Civ. P. 26 (a)(2)(B).                                         2289
Nos. 02-3267/3309                             Tompkin v. Philip          23     24         Tompkin v. Philip                 Nos. 02-3267/3309
                                              Morris, Inc., et al.                         Morris, Inc., et al.

cancer “most likely resulted from occupational exposure to                      not have “a definite and firm conviction that the trial court
silicates and asbestos” and that smoking was not a proximate                    committed a clear error of judgment.” Tobin, 993 F.2d at 542
cause of Mr. Tompkin’s cancer.9 J.A. at 2540.                                   (citation omitted).
   Moreover, Tompkin conceded that asbestos contributed to                      3.        The District Court’s Exclusion of Evidence Proffered by
her husband’s cancer. See J.A. at 1902 (testimony of                                      Tompkin
plaintiff’s expert, Dr. Joseph Tomashefski, a pathologist, that
“asbestos interacted with the cigarette smoke as co-                                 a.     Introduction
carcinogens to cause his lung cancer”); J.A. at 1886
(testimony of Tomashefski that Mr. Tompkin’s cancer was                            Tompkin argues that the district court erred by excluding
“due to the combined effect of his cigarette smoking and his                    four categories of evidence: evidence concerning research
exposure to asbestos”); J.A. at 1183-84 (opening argument                       and public relations organizations affiliated with the tobacco
that “tobacco and asbestos caused [Mr. Tompkin’s] lung                          industry; evidence concerning non-party tobacco companies;
cancer”).10                                                                     deposition testimony from other tobacco-related lawsuits; and
                                                                                post-1965 evidence. However, Tompkin has not explained
  In denying Tompkin’s motion for a new trial, the district                     the relevance of any specific piece of evidence, either making
court concluded that McCue’s testimony was “far more                            a generalized assertion that a category of evidence is relevant
devastating than Dr. Bradley’s testimony about epidemiology                     and leaving the court to sift through hundreds of pages of
associations.” J.A. at 874. We have not found anything in                       documents or thousands of pages of deposition testimony in
the record or the parties’ briefs that undermines this                          an effort to divine the relevance of particular items, or failing
conclusion, and we cannot say that the exclusion of the                         to identify the specific pieces of evidence excluded by the
testimony “would have caused a different outcome at trial.”                     district court at all. Moreover, Tompkin has made no effort
Morales, 151 F.3d at 514 (citation omitted). In sum, we do                      to explain how she was prejudiced by the exclusion of the
                                                                                evidence. Consequently, we cannot conclude that the district
                                                                                court abused its discretion in excluding the evidence or that
    9
      The experts also testified that damage to the lungs from sm oking is      the exclusion of the evidence was prejudicial.
reversible but damage from asbesto s is not. J.A. at 2283, 2291-92, 2523-
24.                                                                                This court reviews a district court’s evidentiary rulings for
                                                                                abuse of discretion, and a district court’s determination will
    10
        Additiona lly, Tompkin cross-examined Bradley about the                 be reversed only if the abuse of discretion caused more than
consistency of his testimony on asbestos with his report (J.A. at 2409-17),     harmless error. Argentine v. United Steelworkers of Am., 287
and he raised the issue during interim argum ent. See J.A. at 2505 (“I have     F.3d 476, 486 (6th Cir. 2002); Trepel v. Roadway Exp., Inc.,
to take his word for it, I couldn’t tell you if my life depended on it—o ne
of 69 articles. He doesn’t raise it in his rep ort, he d oesn’t say it in his
                                                                                194 F.3d 708, 716 (6th Cir. 1999). “Broad discretion is given
deposition, he says it here.”) During closing argument, she accused the         to district courts in determinations of admissibility based on
defendants of ambushing her with Bradley’s testimony. J.A. at 2793              considerations of relevance and prejudice, and those decisions
(“[W ]e come into the courtroom and, bam, up come those bo ards and up          will not be lightly overturned.” United States v. Jackson-
come this new opinion [sic] that it was asbestos. So, I mean, the               Randolph, 282 F.3d 369, 376 (6th Cir. 2002). As a leading
tobacco— the defendants are capable of playing pretty hard-nosed                treatise observes, “[c]laims of error with regard to the
footb all.”).
Nos. 02-3267/3309                    Tompkin v. Philip      25   26     Tompkin v. Philip                            Nos. 02-3267/3309
                                     Morris, Inc., et al.               Morris, Inc., et al.

admission or exclusion of evidence are prime candidates for      Hill & Knowlton (“H & K”).11 On September 21, 2001, after
application of the harmless error rule.” 11 Charles Alan         considering additional briefing by the parties, the district
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice       court refused to overrule its original ruling. The district court
and Procedure § 2885 (2d ed. 1995).                              did not explain its rationale for excluding the evidence in
                                                                 either order. On December 20, 2001, the district court denied
  As defined by the Federal Rules of Evidence, relevant          Tompkin’s motion for a new trial without discussing
evidence is “evidence having any tendency to make the            Tompkin’s argument that it had erred by excluding evidence
existence of any fact that is of consequence to the              concerning the tobacco industry groups.
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.          On appeal, Tompkin asserts, in broad terms, that evidence
All relevant evidence is admissible. Fed. R. Evid. 402.          concerning CTR, TIRC, TI, and H & K was relevant.
However,                                                         Specifically, she contends that “the efforts of these groups are
                                                                 highly relevant to the issues of common knowledge, as well
  Although relevant, evidence may be excluded if its             as to consumer expectations, failure to warn, and punitive
  probative value is substantially outweighed by the danger      damages,” apparently because these groups allegedly
  of unfair prejudice, confusion of the issues, or misleading    attempted to mislead the public about the dangers of cigarette
  the jury, or by considerations of undue delay, waste of        smoking. She points to eighty-four documents—including
  time, or needless presentation of cumulative evidence.         internal memoranda concerning the formation of, and the
                                                                 activities of, TIRC and TI, press releases by TIRC, TI, and
Fed. R. Evid. 403.                                               newsletters published by TI—as examples of evidence
  b.   Exclusion of Evidence Concerning Tobacco Industry
       Groups
                                                                      11
                                                                         According to Tompkin, defendants The American T oba cco Co.,
  Tompkin contends that the district court erred by excluding    Lorillard Tob acco Co., and Philip M orris, Inc., as well as other tobacco
evidence concerning certain research and public relations        comp anies, formed TIR C in Decemb er 1953 in response to medical
groups affiliated with the tobacco industry. However,            research that linked cigarette smoking to lung cancer. Tompkin alleges
Tompkin has not shown that any specific document was             that TIR C, and its successor, CT R, “claimed to b e independently
                                                                 scientifically investigating whether there were health risks to smoking
relevant or that the exclusion of any specific document          cigarettes” and “continued to claim th at further research needed to be
resulted in prejudice.                                           done before smo king co uld be said to cause lung cancer . . . long after the
                                                                 tobacco companies internally understood the true hazards.” App ellant’s
  On August 2, 2001, the district court entered an order         Br. at 18.
“tentatively” granting the defendants’ motion in limine to            Also according to Tom pkin, the defendants, as well as other tobacco
exclude evidence or allegations concerning the Council for       comp anies, formed TI in 1958 to serve as the industry’s “public relations
                                                                 and lobbying arm.” Tompkin alleges that TI endeavored to “create a
Tobacco Research (“CTR”), the Tobacco Industry Research          ‘contro versy’ about the health hazards of smo king cigarettes, and to create
Committee (“TIRC”), the Tobacco Institute, Inc. (“TI”), and      doubt abo ut the link b etween smo king and can cer without expressly
                                                                 denying it.” Id.
                                                                      Finally, according to Tompkin, H & K, a public relations firm, was
                                                                 involved in the forma tion of T IRC .
Nos. 02-3267/3309                           Tompkin v. Philip         27     28    Tompkin v. Philip                     Nos. 02-3267/3309
                                            Morris, Inc., et al.                   Morris, Inc., et al.

wrongfully excluded by the district court’s ruling. However,                 exclude evidence of or reference to conduct or documents of
she does not explain how any specific piece of evidence was                  non-party tobacco companies. On September 21, 2001, after
relevant or how the exclusion of any specific piece of                       considering additional briefing by the parties, the district
evidence inflicted prejudice.                                                court refused to overrule its original ruling. The district court
                                                                             did not explain its rationale for excluding the evidence in
  Tompkin has not shown that she was prejudiced by the                       either order. On December 20, 2001, the district court denied
district court’s ruling. Before this court, Tompkin merely                   Tompkin’s motion for a new trial without discussing
asserts that this category of documents is relevant to an array              Tompkin’s argument that it had erred by excluding
of issues, making no effort to demonstrate the relevance of                  evidencing concerning non-party tobacco companies.
particular documents or to explain how she was prejudiced by
the exclusion of particular documents. Without such                            On appeal, Tompkin argues that the district court erred by
information, we cannot say that the trial court committed a                  excluding evidence concerning non-party tobacco companies.
clear error of judgment or that Tompkin suffered prejudice.12                Speaking in the most general terms, she contends that this
                                                                             evidence was relevant because evidence showing that other
  c.     Exclusion of Evidence Concerning Non-Party Tobacco                  tobacco companies knew of the dangers of smoking indicates
         Companies                                                           that the defendants should have known of the dangers as well
                                                                             (and, hence, should have warned consumers of the dangers).
  The district court’s exclusion of evidence concerning non-                 She has not identified any specific piece of evidence that was
party tobacco companies does not constitute grounds for a                    excluded by the district court’s ruling.
new trial, as Tompkin has not demonstrated that the district
court improperly excluded any specific piece of evidence or                    Given Tompkin’s failure to direct the court to the specific
that the exclusion of any specific piece of evidence was                     pieces of evidence that she was prevented from introducing,
prejudicial.                                                                 we cannot say that the district court committed reversible
                                                                             error. It is impossible to determine whether the evidence that
  On August 2, 2001, the district court entered an order                     Tompkin intended to present was relevant (or whether the
“tentatively” granting the defendants’ motion in limine to                   evidence should have been excluded under Federal Rule of
                                                                             Evidence 403) without knowledge of the substance of the
                                                                             testimony or documents. Likewise, it is impossible to say
    12
       Mo reover, although the district court granted the defendants’        that Tompkin was prejudiced by the exclusion of the evidence
motion in limine to exclude this category of evidence, it later ruled that   simply on the basis of Tompkin’s generalized assertion that
the defendants had “opened the door” to this evidence. During To mpk in’s    the evidence was “relevant.”
cross-examination of Dr. Hoff, the defendants’ expert on the common
knowledge issue, the d istrict court ruled that evidence relating to TIRC
and TI was no longer excluded, given that Dr. Hoff had shown “no
interest” in the public position of the tobacco companies regarding the
link between cigarette smoking and lung cancer when analyzing whether
the linkage was common knowledge. J.A. at 1618. Tompkin proceeded
to question Dr. Hoff about TIRC, TI, CTR, and H & K, even examining
Dr. Hoff about one of the press releases that Tompkin complains was
excluded by the district court’s initial ruling. J.A. at 1619-51.
Nos. 02-3267/3309                      Tompkin v. Philip       29    30     Tompkin v. Philip                           Nos. 02-3267/3309
                                       Morris, Inc., et al.                 Morris, Inc., et al.

  d.     Exclusion of Deposition Testimony from Other                Spears, III, the former chairman and CEO of Lorillard
         Proceedings                                                 Tobacco Co., that his company “would have kept selling
                                                                     cigarettes as long as they were a legal product, regardless of
  The district court’s exclusion of deposition testimony from        whether there were several definitive studies showing
other proceedings does not constitute reversible error, as           smoking causes lung cancer” (id. at 40); (7) testimony from
Tompkin has not established that she was prejudiced by the           Carl G. Thompson, a former employee of H & K, that “TI’s
exclusion of the testimony.                                          position with respect to tobacco and health was basically a
                                                                     theme of ‘scientific controversy’” (id. at 42); (8) testimony
  On appeal, Tompkin complains that she was not allowed to           from William Kloepfer, an employee of TI starting in 1967,
present the following deposition testimony:13 (1) testimony          about “the use of the ‘cigarette controversy’ since at least TI’s
from Robert Heimann, the former president and CEO of The             inception in 1958" (id. at 43); and (9) testimony from Walker
American Tobacco Company, “regarding warnings”                       P. Merryman, a spokesman for TI, that one of TI’s purposes
(Appellant’s Reply Br. at 30); (2) testimony from Frederick          was to convince the public that “we are vitally interested in
Panzer, an employee of TI starting in 1969, that the tobacco         getting the facts that would provide answers to questions
industry had employed “a holding strategy” of “creating              about smoking and health.” Id. at 44.
doubt about the health charge without actually denying it”
and “advocating the public’s right to smoke, without actually          Assuming that this testimony was relevant (and not
urging them to take up the practice” (id. at 32); (3) testimony      excludable under Federal Rule of Evidence 403),14 and also
from Bennett LeBow, who acquired ownership of Liggett                assuming that the testimony was not inadmissible hearsay,15
Group, Inc. in the 1980s, that “the tobacco companies were all
lying regarding the defenses they were making including
cigarettes causing disease” (id. at 33); (4) testimony from               14
Irwin Tucker, an employee of a non-party tobacco company,                    The relevance of the excluded testimony is by no means clear.
that, at the December 1953 meeting where tobacco company             To mpk in makes no effort to tie the testimony of particular individuals to
                                                                     specific issues; instead, she simply announces at the outset of her
presidents created TIRC to respond to adverse publicity from         argument that “[t]his testimony was relevant to the issues before the jury
medical research linking smoking to lung cancer, there was           in this case.” Appellant’s Br. at 24. (There is an exception; she does
no discussion whether the tobacco companies should issue             assert that “portions” of Heimann’s deposition relate to her failure to warn
warnings to smokers regarding the health risks (id. at 35-36);       claim and the defendant’s com mon know ledge defense. Ap pellant’s
(5) testimony from Joseph F. Cullman, the former CEO of              Rep ly Br. at 29-30.) Moreo ver, she has not identified the sp ecific
                                                                     testimony that she alleges w as erro neously excluded . Thus, the court has
Philip Morris, Inc., that his company took the position that “it     been left to review literally thousand s of pages of depo sition transcripts
had not been proved that cigarette smoking caused lung               and to speculate which testimony purportedly relates to which issue(s),
cancer” and that the tobacco industry endeavored “to point           even before turning to the relevanc y and Rule 403 issues.
out to the public a controversy about smoking and health
                                                                          15
concerns” (id. at 39); (6) testimony from Alexander White                   To mpk in’s responses to the defendants’ hearsay objections are, at
                                                                     times, barely even suppo rted. For examp le, she asserts that ce rtain
                                                                     testimony is admissible pursuant to Federal Rule of Evidence 804(b)(1),
    13
                                                                     but does not direct the court to any evidence in the record supporting her
       The depositions were taken in various other tobacco-related   position that the declarant is “unavailable” or her position that the
lawsuits.                                                            defendants had “an opportunity and similar motive to develop the
Nos. 02-3267/3309                             Tompkin v. Philip           31     32   Tompkin v. Philip                     Nos. 02-3267/3309
                                              Morris, Inc., et al.                    Morris, Inc., et al.

Tompkin has not shown that she was prejudiced by the                             trial without discussing Tompkin’s argument that it had erred
exclusion of this testimony. She has not identified the                          by excluding post-1965 evidence.
specific testimony that she believes was erroneously
excluded, has not matched the testimony of specific                                On appeal, Tompkin rests on bald argument.               Her
individuals to specific issues, and has not made any attempt                     discussion of this issue follows:
to explain how her case was prejudiced by the exclusion of
the testimony. Accordingly, we cannot conclude that the                            Post 1965 evidence is relevant and should not have been
evidence would have caused a different outcome at trial. In                        excluded since the factors to be considered in
re Air Crash Disaster, 86 F.3d 498, 526 (6th Cir. 1996).16                         determining punitive damages as set forth above included
                                                                                   a number of items which necessarily involve post injury
  e.     Exclusion of Post-1965 Evidence                                           activity. Defendants engaged in a continuing course of
                                                                                   deceitful conduct throughout the period Mr. Tompkin
  The district court’s exclusion of post-1965 evidence does                        smoked and for many years thereafter. Evidence
not constitute reversible error, as Tompkin has not shown that                     regarding events subsequent to 1965 will explain
she was prejudiced by the exclusion of the evidence.                               defendants’ motives, intent and knowledge prior to 1966.
                                                                                   This relates to plaintiff’s failure to warn and consumer
   On April 19, 2001, the district court entered an order                          expectation claims. And evidence of defendants’ post
granting, in part, the defendants’ motion to exclude post-1965                     1965 routine practices of distorting the health risks of
evidence. It interpreted this court’s prior ruling to endorse the                  smoking is relevant and admissible under Evid. R. 406.
use of post-1965 evidence in support of Tompkin’s argument
that there was no “common knowledge” in 1965 of a direct                         Appellant’s Br. at 27-28.
link between cigarette smoking and lung cancer. However, it
ruled that any post-1965 evidence must relate to the “common                        With only this information before us, we are unable to say
knowledge” issue, and it specifically ruled that post-1965                       that the district court abused its discretion in excluding post-
evidence was not relevant to the issue of punitive damages.                      1965 evidence. To the extent that the evidence relates to
On August 2, 2001, the district court denied Tompkin’s                           punitive damages, any error was harmless as the jury did not
motion to reconsider its April 19 ruling. On December 20,                        reach the issue of damages. See Miller v. Caterpillar Tractor
2001, the district court denied Tompkin’s motion for a new                       Co., 697 F.2d 141, 145 (6th Cir. 1983) (holding that any error
                                                                                 in the admission of evidence relating to damages was
                                                                                 harmless as “the jury never reached the issue of damages and
testimony.” See Appellant’s Reply Br. at 44 (asserting, without
                                                                                 therefore the testimony could not have contributed to its
supporting citation, that Merryman has cancer and is too ill to travel); id.     verdict of no cause of action”). To the extent that the
at 42 (stating only that Th omp son’s depo sition “was taken in a case           evidence relates to her failure to warn and consumer
involving some of the d efendants in this ca se”); see also id. at 43 (failing   expectations claims, Tompkin has not identified the excluded
to address the hearsay ob jection to K loepfer’s testimo ny).                    evidence nor explained how the evidence would have
    16                                                                           illuminated the defendants’ “motive, intent and knowledge
      Additiona lly, it appears that Tom pkin did not proffer any
deposition testimony from Cullman, Spears, Kloepfer, or Merryman, thus
waiving any right o f appeal. See Fed. R. Evid. 103(a)(2).
Nos. 02-3267/3309                          Tompkin v. Philip          33    34   Tompkin v. Philip                     Nos. 02-3267/3309
                                           Morris, Inc., et al.                  Morris, Inc., et al.

prior to 1966.”17 We therefore cannot conclude that the                     dangerous than an ordinary consumer would expect when
district court erred, much less that any error caused prejudice.            used in an intended or reasonably foreseeable manner, (2) the
                                                                            claimed defect was present when the product left the
4.   The District Court’s Refusal to Instruct the Jury on                   manufacturer, and (3) the claimed defect proximately caused
     Tompkin’s Consumer Expectations Theory                                 the claimed injuries. Hisrich, 226 F.3d at 455. “‘[E]vidence
                                                                            of unsafe, unexpected product performance is sufficient to
  The district court’s refusal to instruct the jury on                      infer the existence of a product defect’ under the first prong
Tompkin’s consumer expectations theory does not constitute                  of the consumer-expectation standard.” Id. (quoting State
grounds for a new trial, as any error was harmless, given that              Farm Fire & Cas. v. Chrysler Corp., 523 N.E.2d 489, 494-95
the district court did instruct the jury on a “virtually                    (Ohio 1988)). “[T]he determination of whether a product is
indistinguishable” claim.                                                   more dangerous than an ordinary person would expect is
                                                                            generally a question of fact which does not require expert
   This court reviews a district court’s refusal to give a                  testimony.” Id. (quoting Fisher v. Ford Motor Co., 13
requested jury instruction under an abuse of discretion                     F. Supp. 2d 631, 638 n.10 (N.D. Ohio 1998)).
standard. Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d
445, 449 (6th Cir. 2000). A district court’s refusal to give a                 The district court refused to instruct the jury on Tompkin’s
jury instruction constitutes reversible error if (1) the omitted            consumer expectations theory, finding that “there was no
instruction is a correct statement of the law, (2) the instruction          testimony” to support this claim. J.A. at 2629. Evidently, it
is not substantially covered by other delivered charges, and                accepted the defendants’ argument that Dr. Smith’s
(3) the failure to give the instruction impairs the requesting              testimony, which Tompkin claimed created a jury issue as to
party’s theory of the case. Id. “A judgment may be reversed                 the consumer expectations theory, addressed only the
only if the instructions, viewed as a whole, were confusing,                common knowledge issue. J.A. at 2624, 2629.
misleading, or prejudicial.” Id. (quoting Beard v. Norwegian
Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir. 1990)).                          Even assuming for the sake of argument that Tompkin
                                                                            created a triable issue as to her consumer expectations theory,
  Under OPLA, a product is defective in design if “[i]t is                  the district court’s refusal to instruct the jury on this claim
more dangerous than an ordinary consumer would expect                       was harmless error. The district court did instruct the jury on
when used in an intended or reasonably foreseeable manner.”                 Tompkin’s breach of implied warranty claim, a cause of
Ohio Rev. Code Ann. § 2307.75(A)(2) (Anderson 2001).                        action that is “virtually indistinguishable” from a design
Under this “consumer expectations” test, a product may be                   defect claim under OPLA. Tompkin, 219 F.3d at 576
proven to be in a defective condition if (1) it is more                     (quoting Temple v. Wean United, Inc., 364 N.E.2d 267, 270
                                                                            (Ohio 1977)); see also White v. DePuy, Inc., 718 N.E.2d 450,
                                                                            454 (Ohio Ct. App. 1998) (observing that “the two theories
     17
      To mpk in does identify two pieces of evidence in her rep ly brief.   have been used interchangeably and analyzed together”
To mpk in sought to introduce deposition testimony from prior proceedings   (internal quotation omitted)). At least under the present facts,
from Frederick Panzer, a former emplo yee of T I, and from B ennett         the elements of a consumer expectations claim and a breach
LeBow, the owner of Liggett Group, Inc. However, as discussed supra
in Section 3(d), the exclusion of this testimony does not constitute
grounds for a new trial.
Nos. 02-3267/3309                             Tompkin v. Philip           35     36     Tompkin v. Philip                            Nos. 02-3267/3309
                                              Morris, Inc., et al.                      Morris, Inc., et al.

of implied warranty claim are materially indistinguishable,18                    conclude that the district court’s refusal to instruct the jury on
and the district court’s instruction on Tompkin’s breach of                      the consumer expectations claim resulted in prejudice.
implied warranty claim paralleled the pattern instruction for
a consumer expectations claim.19 Consequently, we cannot                         5.   The Defendants’ Cross-Appeal
                                                                                   Given our disposition of Tompkin’s appeal, the defendants’
    18
                                                                                 cross-appeal is moot.
        The elements of a breach of implied warranty claim are (1) the
existence of a defect in the product manufactured and sold by the                                            CONCLUSION
defendant, (2) the defect existed when the product left the hands of the
defendant, and (3) the defect was the direct and proximate cause of the
plaintiff’s injuries. White v. DePuy, Inc., 718 N.E .2d 4 50, 4 55-5 6 (O hio
                                                                                   For the foregoing reasons, we AFFIRM the judgment of
Ct. App. 1998). A product is defective if it is “dangerous to an extent          the district court.
beyond the expectations of an ordinary consumer when used in an
intended or reasonably foreseeable manner.” Leichtamer v. Am. Moto rs
Corp., 424 N.E .2d 5 68, 5 77 (Ohio 19 81); see also W hite, 718 N.E.2d at
456 (“A defect is considered to exist in a product that is not of good
merc hantab le quality, fit and sa fe for its ordinary intended use” (internal
punctuation and quotation omitted)). The elements of a consumer
expectations claim are (1) the product is more dangerous than an ordinary
consumer would expect when used in an intended or rea sonably
foreseeable manner, (2) the claimed defect was present when the product
left the manufacturer, and (3) the claimed defect proximately caused the
claimed injury. Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 455
(6th Cir. 2000) (citing Leichtamer).

    19
      The district court instructed the jury that in order to find the
defendants liable on the implied warranty claim, it had to find                  J.A. at 268 0. The Ohio p attern jury instructions provide as follows:

    One, the defendant sold its cigarettes in a defective con dition                  CONSUMER EXPE CTAT ION T EST. A product is defective
    that made them unreasonably dangerous to M r. Tompkin; and                        under the consumer expectation test if the product is more
    two, the [defendant] engaged in the business of selling the                       dangerous than an ordinary consumer would expect when used
    cigarettes; three, the cigarettes were expected to and did reach                  in an intended or reasonably foreseeable manner. Fore seeab le
    Mr. Tom pkin without substantial change in the condition in                       uses of a product include those that might reasonably be
    which they were sold; and four, the defect was a direct and                       expected, but no t all uses which could occur. You should decide
    proximate cause of M r. Tom pkin’s injuries.                                      whether the claimant’s injury occurred as a direct result of using
                                                                                      the product in a manner that was intended or reaso nably
    And I should also add and dea th [sic].                                           foreseeable. If it was not so used, than the claim ant has failed to
                                                                                      prove the existence of a defect under the consumer expectation
    For purpo ses of this claim, a product is not unre asonably                       test. If the product was so used and was more dangerous than an
    dangerous unless it is dangerous to an extent beyond that which                   ordinary consumer would expect, then the claimant has proved
    would be contemplated by the ordinary consumer who purchases                      the existence o f a defec t under the co nsumer exp ectation test.
    them, with the ordinary know ledge com mon to the co mmunity
    as to their characteristics.                                                 3 Ohio Jury Instructions § 351.09 (2)(C) (2002).
