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Cahn v. United States

June 19, 2003

HERBERT CAHN, ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Cooper, District Judge

FOR PUBLICATION

MEMORANDUM OPINION

This is an action to recover damages for personal injuries due to tobacco-smoke exposure. The plaintiff Herbert Cahn allegedly has health problems because he was exposed to second-hand tobacco smoke while serving in and employed as a civilian by the United States Army. He seeks to recover damages from the defendant United States of America ("Government") and the defendants Phillip Morris USA, Inc. ("PMI"), R.J. Reynolds Tobacco Co. ("RJR"), Brown & Williamson Tobacco Corp. ("B&W"), Liggett & Myers Inc. ("LMI"), Lorillard Tobacco Co. ("LTC"), and U.S. Smokeless Tobacco Co. ("USSTC") (collectively "tobacco companies"). His wife, the plaintiff Ruth Cahn, brings a derivative cause of action. The plaintiffs also seek to maintain a class action. (Compl. at 2 (stating "other Plaintiffs so injured may demand similarly").)

PMI, RJR, LTC, USSTC, and LMI (collectively "tobacco-company movants") separately move, inter alia, to dismiss the complaint as asserted against them. The Government separately moves, inter alia, to dismiss the complaint as asserted against it. These defendants also seek to enjoin the plaintiffs from bringing the same or similar causes of action against them in the future. *fn1 B&W apparently has not been served.

The plaintiffs request a "stay of Decision and Order" and an order directing the tobacco companies to advise them of pending class actions that they may join. (11-30-02 Ltr.; 10-12-02 Ltr.)

The separate motions by the tobacco-company movants and the Government will be granted to the extent that they seek dismissal of the complaint as asserted against them, and otherwise denied. The plaintiffs' two requests will be denied. The Court, although denying the parts of the separate motions seeking an injunction, will (1) direct any future papers in this action from the plaintiffs be forwarded to Chambers for review and (2) issue a separate order to show cause as to why (a) the complaint should not be dismissed as asserted against B&W, and thus dismissed in its entirety, and (b) the Court should not issue a Notification to the plaintiffs that the Court may impose sanctions and preclude them from instituting any new action or proceeding, based on the same or similar claims, without first obtaining leave of the Court, if they continue to engage in non-meritorious litigation. The Court is publishing this memorandum opinion to inform prospective defendants of the possibility of moving to enjoin the plaintiffs.

BACKGROUND

I. Previous Actions: First, Second, and Third Actions

A. First Action

Herbert Cahn, pro se, brought a federal action against the Government in September 1999. Therein, he alleged that he "was injured by long term exposure to tobacco smoke" in his Government workplaces, and that the Government "permitted tobacco smoking in [his] workplaces during the 40 year period 1940-1980, causing cardiovascular disease." (Munayyer Certif., Exs. A & B.) In support, Herbert Cahn certified in December 1999 that:

In October 1997 I was diagnosed as having severe coronary blockage, leading to bypass surgery as treatment, the cause of blockage attributed to long-term exposure to environmental tobacco smoke. I first learned of the causal connection o/a February 1999.

(Id., Ex. C, at 2.)

The court dismissed that action without prejudice for lack of jurisdiction and failure to exhaust administrative remedies in March 2000. (Id., Ex. D.) At about the same time, Herbert Cahn filed an administrative compensation claim for his alleged injuries with, among others, the United States Department of Labor; it was denied initially in August 2000. (Id., Ex. E, 10-6-00 Herbert Cahn Stmt. ("10-6-00 Stmt.") at 2; Perron Decl., Ex. B, 2-18-00 Dep't of Labor Claim Applic. ("2-18-00 Applic.").)

B. Second Action

Herbert Cahn, again pro se, commenced a new federal action in or about October 2000 against the Government and the tobacco companies. (Munayyer Certif., Exs. E & F, 4-13-01 Ltr. Br. at 2.) He made the same allegations as in the first action. (10-6-00 Stmt. at 2 (alleging smoke exposure in workplace from 1940 to 1980 "caused cardiovascular disease" and "heart disease").)

He then moved to withdraw his complaint as asserted against the tobacco companies pending a further decision on his administrative claim by the Department of Labor. (4-13-01 Ltr. Br. at 2.) The court in April 2001 (1) granted the motion and (2) in response to the Government's "letter," dismissed the complaint as asserted against it for failure to exhaust administrative remedies. (Id., Ex. G.) Herbert Cahn appealed, pro se, in June 2001. (Id., Ex. H, Informal Br. at 1.)

The Department of Labor, while the federal appeal was pending, reconsidered the administrative claim, approved it in September 2001, and advised him on how to collect an award. (Id., Ex. H, 9-28-01 Dep't of Labor Dec.; Bridge Decl., Ex. A, 4-19-02 Dep't of Labor Ltr.) This approval was made in response to a reviewing physician's report, which noted that Herbert Cahn "is status post radiation therapy for prostate carcinoma and has ongoing chronic osteoarthritis," and that on: November 4, 1997 . . . he presented . . . with symptoms of typical angina pectoris culminating in . . . ultimate angiography and quadruple coronary artery bypass surgery on January 13, 1998.

The sole illness related to employment exposure to environmental tobacco smoke is that of coronary atherosclerotic heart disease. This is based on the supplied medical records, the history supplied by Mr. Cahn, and the objective data of his cardiac catheterization and anatomic findings at surgery. . . . I believe Mr. Cahn to currently be a healthy 84 year old white male having undergone successful coronary bypass surgery to correct significant multi-vessel coronary atherosclerotic heart disease brought on by the sole controllable risk factor of environmental tobacco smoke to which he was exposed for greater than 40 years in the work place.

(Id., Ex. H, 8-15-01 Report.) The Department of Labor decision also noted that on:

December 15, 1997 you underwent cardiac catheterization. It was at that point that a pathology was recognized and multilevel bypass surgery advised. You had successful coronary artery bypass on January 13, 1998.

(9-28-01 Dep't of Labor Dec.)

The Court of Appeals eventually affirmed the order appealed from in May 2002. (Id., Ex. I, 5-02 Ct. of Apps. Order.) In so doing, the Court noted that "the record makes clear that the Secretary of Labor accepted [Herbert Cahn's] claim (which was based on the same exposure and resultant disease as that set forth in his complaint) for worker's compensation benefits under the Federal Employees Compensation Act." (Id.) Herbert Cahn then petitioned to the United States ...


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