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In re TOBACCO LITIGATION, Eastern District of New York The National Asbestos Workers Medical Fund v. Philip Morris, Inc., Defendants Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Incorporated, Defendants Raymark Industries, Inc. v. The American Tobacco Company, Defendants H.K. Porter Company, Inc. v. The American Tobacco Company, Defendants Robert A. Falise Louis Klein, Jr. Frank Macchiarola and Christian E. Markety, Jr. as Trustees v. The American Tobacco Company, Defendants David B. Bergeron Mark L. Erlich Anthony J. Graziano Thomas Harrington Simon James Kirk Fordyce Lawrence Morrisroe David Wallace David Woodman William J. Sullivan Stephan A. Adamic George Bidgood Theordore H. Brodie Donald Colavecchio Thomas J. Gunning Michael Shaurghnessy and Christopher Topps on Behalf of Themselves and all other similarly trustees of health funds v. Philip Morris, Inc., Defendants Ellis Simon, on behalf of himself and all other persons similarly situated v. Philip Morris, Inc., Defendants Ligget Group Inc. v. Latham & Watkins
MEMORANDUM and ORDER
WEINSTEIN, Senior District Judge.
All the pending captioned tobacco cases are related as to fact and law. See Appendix A (memorandum and orders collected by the Clerk of the Court for delivery to the Clerk of the Court of Appeals for the Second Circuit, pursuant to this Court’s order of March 2, 2000 in connection with Second Circuit Docket No. 00-3004 (mandamus petition))[on file with the Clerk of the Court in matter 98-1492]. The pretrial discovery, preparation for trial, and proposed trials in each of these cases are also related.
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Together and independently these cases are complex. They have required and continue to require close management by the court “to secure the just, speedy, and inexpensive determination of ... [these] actions.” Fed.R.Civ.P. 1; see also Federal Judicial Center, Manual for Complex Litigation §§ 20-23 (3d ed. 1995) [Manual]; cf. Civil Justice Reform Act of 1990,
28 U.S.C. §§ 471-482.
The court has a duty to take affirmative action assisting the parties in all possible settlement options through direct intervention or through the use of alternative dispute resolution (“ADR”) techniques. See, e.g., Fed.R.Civ.P. 16(c)(1), (5), (8) & (16); Local R.Civ.P. 83.11 (court annexed mediation, designation by judge and mediation options); Manual §§ 23.1, 33.29. Among the court’s powers in aid of ADR are appointment of liaison and lead counsel, see Manual §§ 20.22, 21.21, appointed of special counsel for settlement purposes, see Manual § 23.13, and designation of special masters for settlement negotiations and other purposes, see Manual § 21.52 & n. 311. The desirability of settlement has already been brought to the parties’ attention. See Appendix B (transcription file with the Clerk of the Court in matter 98-1492],
It is ORDERED:
1. All the captioned cases are consolidated for purposes of settlement and for no other purpose;
2. Plaintiffs in the cases are to select an individual or individuals to represent them in preliminary discussions designed to set a framework for settlement negotiations;
3. Defendants are to select an individual or individuals to represent them in preliminary discussions designed to set a framework for settlement negotiations;
4. All parties shall attempt to jointly select a mediator or mediators, or special master or masters to facilitate preliminary discussions. The court will, upon request of all parties, suggest one or more possible mediators or special masters. If agreement cannot be reached, one or more mediators or one or more special masters will be considered for appointment by the court for purposes of assisting the parties discussions.
5. Preliminary discussions may include consideration of whether the smokers class action, Simon v. Philip Morris (Civ. No. 99-1988), should be restructured to broaden the class and provide possible subclasses so that the tobacco litigation may be fully resolved in a comprehensive fashion.
6. Notification shall be provided to the United States Government by the clerk of the court inviting it to participate with respect to any claims it may have arising from any federal program. It may intervene or engage in the discussions as a non-party.
The time for bringing a close to tobacco litigation is nigh. The parties shall report back to the court within 10 days.
