Full opinion text
MEMORANDUM & ORDER WEINSTEIN, Senior District Judge. TABLE OF CONTENTS I. Introduction................ 1018 II. Allegations..............................................................1025 A. Burden of Proof................................'.....................1025 1. Class Certification..............................’.................1025 2. Summary Judgment .............................................1025 B. Sources of Proof........................................... 1026 C. Overview of the Conspiracy and Fraud.................................1028 D. Other “Light” Cigarette Fraud Actions .. .•................'.............1029 III. Racketeer Influenced and Corrupt Organizations Act.........................1031 A. Violation of Criminal RICO......................i.. i.................1032 1. Conduct of a Racketeering Enterprise (§ 1962(c))....................1032 a. Enterprise.................................................1032 b. Conduct..............................••....................1033 c. Racketeering activity........................................1033 d. Pattern....................:............................... 1034 2. Conspiracy (§ 1962(d))..........................-.................1035 a. Cofacredit.................................................1035 b. Supreme Court precedent....................................1036 c. Subsequent decisions of the Second Circuit and district courts----1038 d. Other circuits..............................................1038 e. Conclusion on conspiracy requirements........................1039 B. Injury to Property ..............................................: • ■ ■ 1039 1. Law ...........................................................1039 2. Defendants’ Motion for Summary Judgment on Injury................1039 a. Proprietary injury..........................................1040 b. Personal injury.............................................1042 3. Conclusion on Injury.............................................1043 C. Causation and Reliance..............................................1043 1. Law ...........................................................1043 a. Factual causation...........................................1043 b. Proximate causation....................:....................1043 c. Reliance.............. 1044 i. Reliance is required.....................................1044 ii. Role of reliance ........................................1045 (a) Direct reliance......................................1045 (b) Third-party reliance.................................1045 d. Transaction causation and loss causation.......................1045 2. Defendants’ Motion for Summary Judgment on Causation.............1046 a. Reliance...................................................1046 i. Plaintiffs’ claims of reliance..............................1046 ii. Reliance showing required in this case.....................1047 iii. Plaintiffs have demonstrated reliance......................1048 b. Indirect purchaser rule......................................1050 i. Illinois Brick..........'................................1052 ii. Inapplicability of Illinois Brick rule.......................1053 3. Conclusion on Causation..........................................1056 D. Computation of Total Damages ....................".......■............1056 1. Plaintiffs’ Models................................................1057 a. “Loss of market” model......................................1057 b. “Loss of value” model.......................................1057 c. “Price impact” model........................................1058 2. Law ...........................................................1058 a. Practice under common law..................................1058 b. Practice under securities law.................................1059 i. 1933 Act...............................................1060 ii. 1934 Act...............................................1060 (a) Explicit rights of action..............................1060 (b) Implied rights of action..............................1060 c. Practice under antitrust law..................................1061 3. Application of Law to Facts.......................................1063 a. Appropriate measure........................................1063 b. Degree of precision required.................................1065 4. Equitable Relief.................................................1067 5. Conclusion on Computation of Total Damages.......................1067 E. Statute of Limitations................................................1067 1. Law ...........................................................1067 a. Accrual....................................................1068 b. Equitable tolling............................................1068 2. Procedural History..............................................1068 3. Application of Law to Facts.......................................1070 a. Actual knowledge...........................................1070 b. Imputed knowledge.........................................1070 i. Class counsel’s knowledge...............................1071 ii. Class members’ knowledge ..............................1072 e. Separate accrual............................................1074 d. Equitable tolling............................................1074 4. Conclusion on Statute of Limitations...............................1075 IV. Collateral Estoppel......................................................1076 A. Law...............................................................1076 B. Preclusive Effect in Possible Future Bodily Injury Cases.................1076 C. Claim Splitting......................................................1077 D. Preclusive Effect of United States v. Philip Morris......................1077 E. Preclusive Effect of Overlapping Class Actions..........................1079 V. Defendants’ Other Summary Judgment Motions.............................1079 A. Mutagenicity of “Light” Cigarettes....................................1079 B. Defendant BATCo’s Separate Motion for Summary Judgment on All Claims...........................................................1080 1. Extraterritoriality of RICO.......................................1081 a. Law.......................................................1081 b. Application of law to facts....................................1081 2. BATCo’s Liability...............................................1082 a. BATCo’s conduct of the enterprise............................1082 b. BATCo’s participation in the conspiracy.......................1083 c. Damages..................................................1083 d. BATCo’s association with Brown & Williamson.................1083 3. Conclusion on BATCo’s Separate Motion ...........................1084 C. Defendant Philip Morris’ Separate Motion for Summary Judgment on All Claims After November 2002 ....................................1084 1. Facts ..........................................................1084 a. PM USA’s disclosures.......................................1084 b. Plaintiffs’ “concession” ......................................1085 2. Law ...........................................................1086 3. Application of Law to Facts.......................................1086 a. Absence of a scheme to defraud...............................1086 b. Reasonable reliance.........................................1087 c. Judicial estoppel............................................1088 d. Findings on continued increases in nicotine inhaled from “light” cigarettes .........................................1089 4. Conclusion on Philip Morris’ Separate Motion.......................1089 VI. Plaintiffs’ Motions for Summary Judgment..................................1089 A. FTC Defense.......................................................1089 1. Facts ..........................................................1089 a. FTC action ................................................1089 b. Procedural history..........................................1091 2. Law...............................................:...........1092 3. Application of Law to Facts.......................................1092 a. “New” evidence ............................................1092 b. Defendants’ stated position...................................1093 4. Conclusion on FTC Defense.......................................1094 B. Compensation Defense...............................................1094 C. Compliance with Public Health Community Defense.....................1096 D. Meaning of “Lights” Descriptor.......................................1097 VII. Plaintiffs’ Motion for Class Certification....................................1097 A. Class Certification Under Rule 23 .....................................1097 1. Burden of Proof.................................................1097 2. Purpose of Rule 23...............................................1098 B. Rule 23(a) Prerequisites..............................................1101 1. Numerosity.....................................................1101 a. Law.......................................................1101 b. Application of law to facts....................................1101 2. Commonality....................................................1101 a. Law.......................................................1101 b. Application of law to facts....................................1103 3. Typicality.......................................................1104 a. Law.......................................................1104 i. Unique defenses........................................1104 ii. Subclasses.............................................1105 b. Application of law to facts....................................1105 4. Adequacy of Representation ......................................1106 a. Law.......................................................1106 i. Class counsel ..........................................1106 ii. Class representatives lacking interests antagonistic to the class.............................................1107 iii. Other factors...........................................1108 (a) Knowledge of the case and ability to supervise counsel..........................................1108 (b) Credibility of representatives.........................1109 b. Application of law to facts....................................1109 i. Named plaintiffs........................................1109 ii. Proposed class counsel..................................1112 C. Rule 23(b)(2): Injunctive or Declaratory Relief..........................1112 1. Law ...........................................................1112 2. Application of Law to Facts.......................................1113 D. Rule 23(b)(3): Money Damages.......................................1114 1. Law ...........................................................1114 a. Predominance of common questions of law or fact...............1114 i. Violation of RICO mail or wire fraud......................1115 ii. Causation and reliance..................................1115 (a) General proof of reliance.............................1115 (b) Individual proof of reliance...........................1117 iii. Injury to property and damages..........................1119 b. Superiority ................................................1120 2. Application of Law to Facts.......................................1121 a. Class action is superior method of adjudication .................1121 b. Common questions of law or fact predominate..................1123 i. Reliance...............................................1124 ii. Injury to property and damages..........................1127 iii. Statute of limitations....................................1130 E. Rule 23(g): Adequacy of Class Counsel ................................1131 F. RICO and Class Certification.........................................1131 G. Conclusion on Certification of Class....................................1131 VIII. Admissibility of Expert Evidence..........................................1132 A. Motions Regarding Admissibility of Expert Reports.....................1132 B. Rules 702 and 703 of the Federal Rules of Evidence .....................1132 C. Qualifications of Expert Witnesses.....................................1133 D. Helpfulness and Relevance...........................................1133 E. Reliability..........................................................1135 F. Individual Experts’ Reports..........................................1137 1. Challenges to Plaintiffs’ Experts...................................1138 a. John C. Beyer..............................................1138 b. David M. Burns ............................................1149 e. Joel B. Cohen..............................................1150 d. K. Michael Cummings.......................................1153 e. Michael J. Dennis...........................................1157 f. Robbin Derry..............................................1159 g. Marvin E. Goldberg.........................................1159 h. Jeffrey Harris..............................................1163 i. John R. Hauser.............................................1166 j. Katherine Kinsella..........................................1170 k. Matthew L. Myers..........................................1172 l. Blaine F. Nye..............................................1177 m. Richard W. Pollay..........................................1184 n. Robert N. Proctor..........................................1193 o. Paul Slovic.................................................1209 p. Joseph E. Stiglitz...........................................1215 2. Challenges to Defendants’ Experts.................................1221 a. Michael Dixon..............................................1221 b. Jeffery Gentry.............................................1222 c. Jane E. Lewis..............................................1222 d. Arnold T. Mosberg..........................................1223 e. Kenneth R. Podraza.........................................1224 f. Graham A. Read............................................1225 g. Edward A. Robinson........................................1225 h. William Wecker ............................................1226 3. Minor or No Challenges to Plaintiffs’ and Defendants’ Experts........1226 a. Neal L. Benowitz...........................................1226 b. Michael F. Borderding......................................1227 c. Gregory N. Connolly........................................1227 d. Richard Cox ...............................................1227 e. Wayne S. Desaro...........................................1227 f. Peter C. English............................................1227 g. Barry E. Goodstadt.........................................1227 h. Stephen Heeht.............................................1228 i. Lucy L. Henke.............................................1228 j. Jack E. Henningfield........................................1228 k. Jacob Jacoby...............................................1228 l. James A. Langenfeld........................................1228 m. Nancy A. Mathiowetz .......................................1229 n. Kenneth A. Mundt..........................................1229 o. Kevin M. Murphy...........................................1230 p. Bruce Neidle...............................................1230 q. Bruce M. Owen.............................................1230 r. Stanley Presser ............................................1231 s. Michael Schaller............................................1231 t. George Seiden..............................................1231 u. Peter G. Shields............................................1232 v. David W. Stewart...........................................1232 w. Charles R. Taylor...........................................1233 x. Michael Thun..............................................1233 y. Peter A. Valberg ...........................................1233 z. W. Kip Viscusi .............................................1234 aa. Errol Zeiger...............................................1234 G. Plaintiffs’ Motion to Exclude Expert Testimony that “Light” Cigarettes are Safer.........................................................1236 H. Defendants’ Motion to Exclude Expert Evidence of Impact of Marketing of “Light” Cigarettes on Smoking Rates....................1236 1. Relevance ......................................................1236 2. Reliability......................................................1236 I. Defendants’ Motion to Exclude Expert Testimony Regarding Mutagenicity of “Light” Cigarettes..................................1239 J. Further Rulings as Case Develops.....................................1239 IX. Management Issues......................................................1239 A. Aggregate Proof....................................................1239 1. Federal Rules of Civil Procedure and Evidence......................1241 2. Appropriateness of Sampling and Survey Techniques.................1244 3. Due Process....................................................1246 4. Jury Right......................................................1248 B. Distribution of Any Damages.........................................1251 1. Fluid Recovery..................................................1252 a. Nature and use.............................................1252 b. Interaction with procedural and substantive law................1254 c. General law................................................1255 2. Second Circuit Law on Fluid Recovery.............................1260 3. Application of Law to Facts.......................................1268 a. Eisen and Van Gemert......................................1269 b. Due process and Seventh Amendment issues...................1270 c. Rules Enabling Act.........................................1271 4. Conclusion on Fluid Recovery.....................................1272 C. Allocation of Damages Among Defendants..............................1272 1. National Common Law...........................................1273 2. Joint and Several Liability........................................1273 3. Market Share...................................................1274 4. Other Systems..................................................1276 X. Certification of Interlocutory Appeal.......................................1276 XI. Stay...................................................................1277 XII. Conclusion..............................................................1277 Appendix A: United States v. Philip Morris.......................................1278 Appendix B: Blue Cross & Blue Shield of New Jersey v. Philip Morris................1278 Appendix C: Price v. Philip Morris ..............................................1279 Appendix D: In re Simon II Litigation...........................................1298 Appendix E: Monograph 13 ............................ 1298 Appendix F: Report of Massachusetts Department of Health 1351 I. Introduction Tobacco has been woven into the fabric of American history and society since the 1620’s when, as the first cash crop, it saved the colony of Virginia and then, together with cotton, established the economic base for slavery. Edmund S. Morgan, American Slavery, American Freedom, The Ordeal of Colonial Virginia 112, 310 (Francis Parkman Prize Ed., 2005). In more recent times, through cigarettes — produced and allegedly fraudulently merchandised on a massive scale — it has become the basis for a pandemic, causing the premature deaths of tens of millions of Americans. This case represents one event in this long narrative: the alleged successful effort of defendants to cozen smokers into continuing to buy their products by convincing them that smoking “light” cigarettes was safer for their health. It is plaintiffs’ view that this campaign caused smokers to buy “light” cigarettes, in large amounts, at a price greater than they would have paid had the truth been acknowledged by defendants. Defendants’ acts, plaintiffs contend, constituted a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 jf, warranting trebled money damages. 18 U.S.C. § 1964(c). Class action status is sought to bring to bear, on a consolidated basis, the weight of all United States smokers’ claims. It is charged- — with substantial evidence to support the contention — that plaintiff smokers bought cigarettes characterized as “light,” on the suggestion of defendants — the major cigarette manufacturers — that they were less harmful than “regular” cigarettes, when in fact they were at least as dangerous and defendants knew of their dangers. The claim is that the carcinogenic and other adverse effects smokers sought to avoid were not reduced by smoking “light” rather than other cigarettes; that defendants knew this was the case; that they concealed this fact; that they urged plaintiffs — through advertising and other public statements — to smoke these “lights” knowing smokers were being misled; and that they defrauded purchasers of billions of dollars spent for light cigarettes worth less than their purchase price. On behalf of a prospective class, the named plaintiffs seek class certification pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2) and (3) on behalf of the class of persons defined as: All United States residents who purchased in the United States, not for resale, cigarettes labeled as “Lights” and/or “Light” (collectively “light cigarettes”) that were manufactured and/or sold by Defendants during the period commencing on the first date that Defendants began selling light cigarettes until the date trial commences (the “Class Period”), and who are not, as of the date of trial, members of a certified state class seeking economic damages stemming from their purchases of light cigarettes or having obtained an award of, or a denial of, such damages. Excluded from the Class are individuals who are directors and officers of the Defendants’ corporations, their parents, subsidiaries and/or affiliates. This litigation is another in the continuing battle of plaintiffs’ lawyers and their clients with the cigarette industry. While limited success by smokers in some suits— and the cost of litigating — have probably had some deterrent effect on aggressive marketing of a product defendants now partly acknowledge to be dangerous, this, and other suits like it, probably have had only a minimal value in reducing what even defendants now concede are the enormous costs to public health of widespread cigarette smoking. More effective in alleviating smoking dangers are probably such legislative and administrative efforts as prohibiting smoking in public and commercial areas, and raising prices, primarily through taxes. Nevertheless, where a cigarette smoker can demonstrate that he or a group of smokers has been damaged by the cigarette industry, the help of the court in resolving the claim and defenses is mandatory. The independent political-economic arrangement defendants made with the states to pay them billions of dollars over many years has not compensated smokers for the individual damages they have allegedly suffered. Early in our history the Supreme Court ruled that a federal court must decide cases properly brought. It: must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821). While “the federal courts may, in their discretion, [in some narrowly specified classes of cases,] properly withhold the exercise of the jurisdiction conferred upon them where there is no want of another suitable forum,” Massachusetts v. Missouri 308 U.S. 1, 19, 60 S.Ct. 39, 84 L.Ed. 3 (1939), the choice in the present case under the federal RICO statute is not between a United States district court and some other forum, but between this court and no effective forum at all. Plaintiffs have proposed an elegant analysis of the law and facts as a rationale for certifying this litigation as a class action. Their claim is that they, and a class consisting of tens of millions of smokers, were induced by fraud to buy a kind of cigarettes, “lights,” and that they suffered financial damage because they did not get what they thought they were getting — a more valuable, safer cigarette. By relying on federal substantive statutes — the combined “RICO” and Mail and Wire Fraud Acts, 18 U.S.C. §§ 1341, 1343 — they seek to avoid one of the serious difficulties with national class cigarette actions: the tort law in the fifty states is not uniform. They also propose to avoid the other main problem with smokers’ class actions: conduct and motive differences among members of the class. Individuals start and quit smoking and choose various types of cigarettes for different reasons and suffer wide variations in possible harm, creating different specific causation and damage issues attributable to each class member. If plaintiffs’ experts are to be credited in the testimony promised by plaintiffs’ counsel, economic loss of value in purchases of cigarettes allegedly touted as “lighter” when they are not safer avoids this problem of human diversity: first, by the equivalent of statistical averaging and, second, should the jury determine total damages to the class, division of the damages based on claims of smokers for the relative number of cigarettes they bought during the applicable liability period, with unclaimed proceeds to be distributed on a cy pres basis. Defendants, by contrast, in powerful briefs and arguments, point to what they believe are critical defects in the plaintiffs’ case on the facts and the law requiring not only denial of class certification, but dismissal of the case. They contend that they committed no fraud, that the statute of limitations has run, and that class action procedures are not applicable. Accordingly, they move to dismiss and to deny class certification. In considering the matter as it now stands, two powerful factors should be kept in mind: First, is the jury’s constitutional role and its vast discretion in evaluating evidence in a civil suit of this kind under Amendment VII of the United States Constitution. The jury’s power and capacity to deal with complex -facts and come to a reasonable resolution of a dispute should not be underestimated. Second, is the power of the American legal system to overcome a defense that plaintiffs’ claims are so enormous in scope and time, and in diverse persons affected, that they can never be fairly adjudicated in a reasonably comprehensive and relatively inexpensive way. In this connection it is well to recall a central theme of our American legal system: ubi jus, ibi remedi-um — each right has a remedy. Every violation of a right should have a remedy in court, if that is possible. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection____ “[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” ... “[Ejvery right, when withheld, must have a remedy, and every injury its proper redress.” The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 163, 2 L.Ed. 60 (1803) (quoting 3 William Blackstone, Commentaries 23, 109). In modern times, at least since adoption of the Federal Rules of Civil Procedure and Evidence, the ancient maxim is modified to read, “each violation of a right should have a practicable remedy.” A remedy that is impracticable in execution is — for those whose legal rights have been violated- — no remedy at all. Procedures developed through American class action jurisprudence should not be frustrated when a large number of small claims can be aggregated and tried in a way fair to both plaintiffs and defendants. Current widespread partial acknowledgment by defendants of the dangers of their product and alleged efforts to reduce smoking by minors and others does not negate any liability for past delicts not subject to the statute of limitations. Resolution of many of the factual disputes in the case depends upon widely divergent possible inferences that may be drawn from a huge amount of already available evidence of activities by defendants and members of the putative class. While the American jury has been more and more controlled by devices such as summary judgment, the strong policy embodied in Amendment VII, and the presumption that the system can provide a practical remedy for a widespread violation of a right, requires allowing jurors to draw necessary operative factual conclusions wherever reasonable minds could differ. In the instant case the wisdom embodied in the Constitution is reflected in the ability of a fair cross section of the community to appreciate and understand evidence of why people smoke, why they do it in certain ways, and what impact actions and policies of defendants in such matters as advertising have had in influencing behavior. The federal petty civil jury provides the ultimate focus group of the law. In deciding the balance between plaintiffs and defendants, the scale tips heavily in the instant case in favor of allowing a jury rather than a judge to decide the case. Here, in a litigation that arguably might go either way on inferences and facts, the Constitution and basic principle point to certification of the class, allowing the matter to proceed before a jury in a way that is practicable. Denial of motions to dismiss and to exclude relevant and reliable proof, scientific and otherwise, will permit the jury to decide the dispute fairly. Whether plaintiffs can overcome the defendants’ objections to then- proof is subject to trial by jury. There is enough merit to both plaintiffs’ and defendants’ contentions to permit the litigation to go forward. If, as contended by plaintiffs, a huge fraud was perpetrated on tens of millions of people causing them billions of dollars in loss — measured largely by the difference between the value people were led to believe they were getting when they bought “light” cigarettes for safety, and what they received, a non-safe product— recovery dependent on proof should be allowed. The extensive evidence introduced on preliminary motions supports certification of the class and denial of defendants’ motions for summary judgment. While evidence of fraud on the class appears to be quite strong — and defendants have been less than candid in insisting that there was no fraud — evidence of the percentage of the class which was defrauded and the amount of economic damages it suffered appears to be quite weak — and plaintiffs have been less than candid in failing to acknowledge that deficiency in their proof. The court in United States v. Philip Morris, 449 F.Supp.2d 1 (D.D.C.2006), described in Part II.D, infra and excerpted in Appendix A, supra, has estimated that some fifty percent of those who smoked “light” cigarettes would not have done so had they known the truth. See Appendix A at 449 F.Supp.2d at 280, supra. This estimate, strongly relied on by plaintiffs in argument, see Transcript of Sept. 13, 2006, at 52:5-13, 157:22-159:7, does not fill the gap in their proof since, even if the court was right in United States v. Philip Morris, a significant portion of that fifty percent might have smoked other types of cigarettes purchased at the same price “lights” were selling for. Contrasting the real diverse universe of “lights” smokers with the countérfactual universe of fully advised “lights” smokers to determine the impact of the fraud on the size of the market and its nature for damage purposes is a daunting enterprise even with the many proffered experts holding up their statistical lanterns to help in the search for the truth. There is considerable merit to defendants’ experts’ position that many, if not all, the plaintiffs would have bought these light cigarettes' even if they knew they provided no health advantage over regular cigarettes, and that they received full value for their money. There are also serious objections to the plaintiffs’ plan to divide any damages based on the relative number of cigarettes claimed to have been bought by claimants during the period found applicable by the jury, with cy pres division of the remainder. This form of fluid recovery tends — like almost all aggregate litigation — to overcompensate some and un-dercompensate other members of the class who may have relied differently on the “lights” designation and may have acted differently and for different reasons relevant to damages. Nevertheless, serious and unique factual-substantive issues now presented can be resolved by the jury with the aid of experts and statistical proof. If plaintiffs are right, they should not be fobbed off by real and imagined barriers of proof and management problems that can be circumvented in a fair adjudication. Essentially, the issue before the court is not whether a fraud case be proven, but whether damages can be proven for the period since each smoker started smoking, failed to stop, switched to, or started with “lights” rather than the standard cigarettes in vogue up to the introduction of “lights” on a large scale. That introduction to “light” smoking and encouragement of continued use by defendants was allegedly in response to a widespread, fright induced by the Surgeon General’s reports and other warnings of hundreds of thousands of deaths caused yearly by cancer attributable to smoking. Plaintiffs have demonstrated that they may be able to produce sufficient proof to satisfy a jury as to damages based largely on statistics, the law of large numbers, and their experts’ analyses to show a reasonable estimate of total damages, without producing proof of reliance and fraud as to each of millions of smokers, with a damage figure assigned to each smoker and each year that he or she smoked. If each smoker must be considered separately, as defendants suggest is the case, it would be impossible to proceed with a suit of this nature even if it were absolutely clear that each plaintiff had been damaged in the manner plaintiffs allege. The transactional costs and the relatively small recovery for the difference in value between what an individual smoker paid for and what he received would result in damages measured in tens or hundreds of dollars. The huge costs in bringing this action could not be supported by such individual adjudications. The question then becomes whether the American legal system, faced with an alleged massive fraud, must throw up its hands and conclude that it has no effective remedy for what at this stage of the litigation must be assumed to be a huge continuing violation of consumers’ rights. In the American legal system, whose watchword has been, as already noted, “no right without a remedy,” the answer is that modern civil procedure, scientific analysis, and the law of large numbers used by statisticians provide a legal basis for a practical and effective remedy. The plaintiffs are entitled to the chance to prove their allegations. Candor impels recognition of the fact that the Courts of Appeals have not been kind to massive claims against tobacco companies. Despite repeated findings of fact by judges and juries supporting claims of fraud, appellate courts have repeatedly dismissed such cases whether the claim was for consumer fraud, personal injury, or third party damages for costs of medical treatment. The defendants make a strong case that this suit, too, must founder on that appellate predilection for individual suits. The case comes down to the role of the jury: should it be permitted to decide this vexing private litigation on the basis of somewhat dubious arguments and questionable proofs when the decision has so many important public social overtones, or should the judges themselves decide by holding that the matter is beyond the ken of a reasonable jury? Here, the fundamentals of the Constitution provide the answer. The first Congress and the States that then constituted the Union still speak clearly enough: AMENDMENT VII RIGHTS IN CIVIL CASES In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. See also Brink’s Inc. v. City of New York, 717 F.2d 700, 711 (2d Cir.1983) (“There is no bright line that divides evidence worthy of consideration by a jury, although subject to heavy counter-attack, from evidence that is not. Especially because of the guaranty of the Seventh Amendment,- a federal court must be exceedingly careful not to set the threshold to the jury room too high.”) (quoting Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906, 912 (2d Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 85 (1962)). If this case presents issues for the jury — as is now the decision of this court— then both the certification question and defense motions for summary judgment should be — and now are — decided in plaintiffs’ favor. That the court believes, on the evidence thus far produced, that the amount of possible damages has been grossly exaggerated by plaintiffs is not a basis for denying their right to a jury trial. Adjustments to damages can be made after all the evidence is in and the jury has made its decision, if that decision is unreasonable. , In Part II and Appendices A, B, C, and D, allegations and prior findings of fact against the tobacco companies on the fraud issue are sampled: First, is the general fraud in hiding the dangers of smoking, and second, is the particular fraud respecting lights. Appendix E includes portions of a Untied States Surgeon General’s report on the health risks posed by “light” cigarettes and the history of their development. Appendix F includes portions of a recent Commonwealth of Massachusetts report on continuing increases in nicotine inhaled from cigarettes, including those designated as “light.” In Part III, the law of RICO is analyzed and defendants’ central motions for dismissal considered. In Part IV the court considers the role of collateral estoppel ' in this litigation. Whether an adjudication against either side would be binding on collateral estop-pel grounds in suits based on substantive theories similar to the one implicated in the present litigation when recovery is sought for physical injury to smokers rather than economic loss from the purchase of overpriced cigarettes is important. Recoveries for medical damage to the person of smokers are enormously higher than those sought now. This legal problem and the related problem of splitting a cause of action, also discussed in Part TV, do not trump class action advantages since members of the class can opt out. It is a factor, however, that needs evaluation in the context of certification. In Parts V and VI, the parties’ additional motions for summary judgment are discussed and resolved. Part. VII addresses the motion for class certification. The question of class certification is critical for this court and the Court of Appeals. No individual can afford to prosecute the case alone. Denial of certification here or on appeal would constitute a “death knell.” Part VIII contains an analysis pursuant to Rule 702 of the Federal Rules of Evidence of the proposed testimony of experts for defendants and plaintiffs to determine whether a jury should be permitted to hear them; it is concluded that most experts of both defendants and plaintiffs should be heard. Part IX considers management issues, including the use of aggregate proof and fluid recovery. Part X considers application of Rule 23(f) or section 1292(b) of title 18 to an interlocutory appeal. Based on experience with the trial and other disposition of a number of aggregate tobacco actions in this court, it is the opinion of the court that this class action can be tried to a final judgment that provides appropriate protection against relitigation of the issues adjudicated with fidelity to the applicable substantive law. Federal courts have the institutional capacity to conduct these proceedings. The representation of defendants and plaintiffs is adequate to conduct the litigation for the benefit of all persons whose interests are being adjudicated. Am immediate stay is rejected in Part XI. The Court of Appeals has the power to grant such a stay, but the case, in the trial court’s opinion, should promptly proceed in view of its long history. Part XII orders that the class sought by plaintiffs be certified. The motions for summary judgment are denied. Numerous interlocutory orders have been issued in this litigation. See Schwab v. Philip Morris, No. 04-CV-1945, 2006 WL 721368 (E.D.N.Y. Mar. 20, 2006) (overruling plaintiffs’ objections to magistrate judge’s orders); 2005 WL 3032556 (E.D.N.Y. Nov. 14, 2005) (discussing fluid recovery); 2005 WL 2467766 (E.D.N.Y. Oct. 6, 2005) (denying defendants’ motion for summary judgment on statute of limitations); 2005 WL 2401647 (E.D.N.Y. Sept. 29, 2005) (Daubert issues); 2005 WL 2401645 (E.D.N.Y. Sept. 27, 2005) (denying plaintiffs’ motions for partial summary judgment and application of collateral es-toppel); 2005 WL 2401635 (E.D.N.Y. Sept. 27, 2005) (denying defendants’ motion to dismiss claims based on increased muta-genicity of “light” cigarettes); 2005 WL 2401638 (E.D.N.Y. Sept. 27, 2005) (denying plaintiffs’ motion to exclude testimony that “light” cigarettes are safer than regular cigarettes); 2005 WL 2401639 (E.D.N.Y. Sept. 27, 2005) (denying plaintiffs’ Rule 16(c) motion for simplification of the issues); 2005 WL 2401642 (E.D.N.Y. Sept. 27, 2005) (denying defendant BATCo’s motion for summary judgment on all claims); 2005 WL 2401643 (E.D.N.Y. Sept. 27, 2005) (denying defendants’ motion to exclude expert testimony on the impact of “light” cigarette marketing on smoking rates); 2005 WL 2401565 (E.D.N.Y. Sept. 26, 2005) (denying plaintiffs’ motion for partial summary judgment on the existence of defendants’ conspiracy); 2005 WL 2401353 (E.D.N.Y. Sept. 26, 2005) (granting defendant British American Tobacco p.l.c.’s motion to dismiss); 2005 WL 2401350 (E.D.N.Y. Sept. 26, 2005) (denying plaintiffs’ motion for partial summary judgment on defendants’ claim that they complied with the directives of the public health community in developing “light” cigarettes); 2005 WL 2401276 (E.D.N.Y. Sept. 26, 2005) (denying plaintiffs’ motion for partial summary judgment on defendants’ claim that smokers knew about compensation and so were not defrauded); 2005 WL 2401633 (E.D.N.Y. Sept. 26, 2005) (denying plaintiffs’ motion for a permanent injunction prohibiting defendants from marketing or selling any cigarette with a “light” or “lights” descriptor); 2005 WL 2401196 (E.D.N.Y. Sept. 26, 2005) (denying plaintiffs’ motion for partial summary judgment on the meaning of the “light” descriptor); 2005 WL 2303821 (E.D.N.Y. Sept. 22, 2005) (granting defendants’ motion for partial summary judgment on plaintiffs’ claims for equitable relief); 2005 WL 2303822 (E.D.N.Y. Sept. 22, 2005) (denying plaintiffs’ motion to strike defendants’ employee-expert reports but requiring those reports to meet the standards of Federal Rule of Civil Procedure 26(a)(2)(B)); 2005 WL 2303823 (E.D.N.Y. Sept. 22, 2005) (granting defendants’ motion to exclude the expert testimony of plaintiffs’ expert on business ethics); 2005 WL 2293381 (E.D.N.Y. Sept. 21, 2005) (denying defendants’ motion for an immediate stay of all proceedings); 2005 WL 2155141 (E.D.N.Y. Aug. 31, 2005) (excluding from consideration on interlocutory orders certain plaintiffs’ experts’ reports); 228 F.R.D. 165 (E.D.N.Y.2005) (preliminary reflections and questions for the parties). This memorandum and order incorporates and modifies the above orders. II. Allegations A. Burden of Proof 1. Class Certification On a motion for class certification, plaintiffs bear the burden of proving that the requirements of Rule 23 of the Federal Rules of Civil Procedure have been met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). At this stage in the litigation they need not show that they are likely to prevail on the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). But' a “rigorous analysis” to determine that the Rule 23 requirements are met must be conducted. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). While it is sometimes mistakenly suggested that “a motion for class certification is not an , occasion for examination of the merits of the case,’ ” In re Initial Pub. Offering Sec. Litig., 227 F.R.D. 65, 93 (S.D.N.Y.2004), the courts should not launch the heavy and expensive machinery of the class action unless there is a chance for a recovery. In any event, since defendants combine their opposition to certification with a motion for summary judgment, the merits must be considered. £ Summary Judgment Plaintiffs need not prove that they will prevail at trial in order to survive a motion for summary judgment. Summary judgment is appropriate only if “there is no genuine issue' as to any material fact and ... the moving party is entitled to a judgment- as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also Mitchell v. Washingtonville Central School District, 190 F.3d 1, 5 (2d Cir.1999). The burden rests initially with the moving party to demonstrate the absence of a genuine issue of material fact. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party appears to meet this burden, the opposing party must produce evidence that raises a material question of fact to defeat the motion. See Fed.R.Civ.P. 56(e). This evidence may not consist of “mere conclusory allegations, speculation or conjecture[.]” Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996). See also Delaware & Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (“Conclusory allegations will not suffice to create a genuine issue.”). The mere existence of some peripheral factual disputes will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 247, 106 S.Ct. 2505. “[Ojnly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. In deciding the motion, all inferences from, and ambiguities in, the underlying facts are to be resolved in favor of the party opposing summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only when reasonable minds could not differ as to the import of the proffered evidence is summary judgment proper. See Anderson, 477 U.S. at 250-52, 106 S.Ct. 2505; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). “In considering the motion, the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986). Critical is recognition of the jury’s fact-finding primacy: It is well established that credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment. If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper. Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir.2003) (quotation marks omitted). Defendants in this case have outproduced plaintiffs — in documents, number of experts, etc. — by at least two to one. Yet summary judgment, even in a large, complicated litigation such as this one, does not hinge on volume. If plaintiffs’ legal theory is sound, and if they can demonstrate that proof is available to support it, summary judgment for defendants is inappropriate. The materials supplied by both parties demonstrate that plaintiffs have available sufficient evidence, and a legal theory sufficiently sound, to withstand a motion for summary judgment. B. Sources of Proof The record is immense. Plaintiffs and defendants have submitted 200 volumes of documentary evidence, expert reports, and briefs. They have appeared before the court numerous times since suit was filed in May 2004. Argument on the dispositive motions was heard over two days in September 2005 and again in September 2006. Discovery was conducted under Magistrate Judge Steven Gold for over a year and a half. The docket contains some 1000 entries. Aspects of the cigarette litigation before this and other courts provide additional sources of proof for decision on the summary judgment and certification motions. See, e.g., United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C.2006) (part 1 of 6) (final order containing findings of fact and law after 9-month bench trial on federal government’s civil RICO suit against tobacco manufacturers for mail and wire fraud); Davies v. Philip Morris USA, Inc., No. 04-2-08174-2, 2006 WL 1600067 (Wash.Super. May 26, 2006) (denying certification of class of Washington smokers of Marlboro Lights alleging fraud under state consumer protection act); Pearson v. Philip Morris, Inc., No. 0211-11819, 2006 WL 663004 (Or.Cir. Feb. 23, 2006) (denying certification of class of Oregon smokers of Marlboro Lights alleging fraud under state consumer protection act); Aspinall v. Philip Morris Companies, Inc., 442 Mass. 381, 813 N.E.2d 476 (2004) (affirming lower court’s certification of class of Massachusetts smokers of Marlboro Lights for fraud under state consumer protection act); Curtis v. Philip Morris Companies, Inc., No. PI 01-018042, 2004 WL 2776228 (Minn.Dist.Ct. Nov. 29, 2004) (certifying class of Minnesota smokers of Marlboro Lights for fraud under state consumer protection act); Craft v. Philip Morris, Inc., No. 002-00406A, 2003 WL 23139381 (Mo.Cir. Dec. 31, 2003) (denying summary judgment in class action by Missouri smokers of Marlboro Lights for fraud under state consumer protection act); Craft v. Philip Morris, Inc., No. 002-00406A, 2003 WL 23355745 (Mo.Cir. Dec. 31, 2003) (granting class certification in same suit); Price v. Philip Morris, Inc., No. 00-L-112, 2003 WL 22597608 (Ill.Cir. March 21, 2003) (findings of fact and law after bench trial on Illinois smokers’ class action against tobacco manufacturers for “light” cigarette fraud under state consumer protection law), rev’d on other grounds, 219 Ill.2d 182, 302 Ill.Dec. 1, 848 N.E.2d 1 (111.2005) (holding that the action was barred by the state act); In re Simon II Litigation, 211 F.R.D. 86 (E.D.N.Y.2002) (certifying nationwide class for litigation of punitive damages for fraud by tobacco companies), rev’d, 407 F.3d 125 (2d Cir.2005); Blue Cross & Blue Shield of New Jersey v. Philip Morris, Inc., 178 F.Supp.2d 198 (E.D.N.Y.2001) (discussing jury findings after 44 days of trial on health insurer’s claim that tobacco companies distorted public body of knowledge about cigarettes in violation of New York’s consumer protection statute), rev’d on other grounds, 344 F.3d 211 (2d Cir.2003) and 393 F.3d 312 (2d Cir.2004); Falise v. American Tobacco Co., 94 F.Supp.2d 316 (E.D.N.Y.2000) (denying summary judgment in suit by trust established to compensate victims of asbestos against tobacco manufacturers for their alleged role in contributing to the trust claimants’ injuries). Of particular note is the comprehensive recent opinion in the federal government’s civil RICO suit against these same defendants, alleging in part the same fraudulent behavior as is now being charged. The opinion runs to 1,742 pages and is minutely documented. See United States v. Philip Morris USA Inc., supra. Defendants object to the use of the district court’s findings in that suit — and the evidence upon which they were based — on the motions in this litigation. They argue that, because the district court considered the entire “low tar” market segment, which includes brands not bearing the “lights” descriptor, much of the evidence from the prior suit is irrelevant to this suit. The argument ignores the problem pervading both suits: the health concerns of smokers, which defendants attempted to deflect by their related “lights” and “low tar” advertisements. “Low tar” and “lights” findings in the suit by the United States in the District of Columbia provide substantial support for plaintiffs’ claims. Those findings, even if not decisive, supply persuasive muster for the case plaintiffs seek to construct. The standard of probability under the rule [of relevance] is “more ... probable than it would be without the evidence.” Any more stringent requirement is unworkable and unrealistic. As McCormick says, “A brick is not a wall” .... Fed.R.Evid. 401 advisory committee notes (1972) (citations omitted). Plaintiffs have chosen a sensible class definition based, perhaps, on prior experience with other “lights” cases, see Part III.E.3.b.i (noting proposed class counsel’s previous involvement in such suits), or in anticipation of what a jury may find persuasive. That they.could have sought a broader class is no bar to evidence relevant both to the present class and the unchosen more general class. Contrary to defendants’ characterization, plaintiffs’ allegations do not depend solely on the use of the “lights” descriptor. See, e.g., proposed expert testimony of Marvin E. Goldberg, Part VIII.F.l.g, infra, on variety of marketing techniques employed by defendants, including color and imagery. Evidence of defendants’ conduct and its effects on the entire “low tar” market is relevant to their conduct and effect on the “lights” segment of that market. Subject to hearsay, prejudice, and other exclusions, if particular testimony, scientific studies, or internal industry documents could contribute to a jury’s understanding of defendants’ conduct and plaintiffs’ beliefs and alleged injuries with respect to “light” cigarettes, they are admissible. See also Part VIII.D, infra (rejecting a similar argument with respect to expert testimony). C. Overview of the Conspiracy and Fraud As noted, the fraud and conspiracy alleged here have been the subject of intense litigation in recent years. The court merely limns the allegations here. Appendices A, B, C, and D, infra, contain some of the detailed factual findings from previous litigations. If plaintiffs’ allegations are true, defendants have engaged in a fifty-year still continuing conspiracy to deceive the public about the risks of smoking in order to prevent restrictive governmental regulation and prop up cigarette sales that otherwise would have sagged as smokers began to understand the array of diseases caused by smoking. As part of this conspiracy, defendants reacted to growing consensus in the late 1960s by public health officials that smoking cigarettes causes lung cancer and numerous other diseases by promoting new brands as low in tar. This conspiracy was neatly summarized by the district court in the government’s suit against the defendant companies after a nine-month bench trial: Defendants ... marketed and promoted their low tar brands as being less harmful than conventional cigarettes [when they knew they were not].... By making these false claims, Defendants [gave] smokers an acceptable alternative to quitting smoking, as well as an excuse for not quitting. Defendants used a combination of techniques to market and promote their low tar brands. Defendants’ marketing has emphasized claims of low tar and nicotine delivery accompanied by statements that smoking these brands would reduce exposure to the “controversial” elements of cigarette smoke (i.e., tar). Since the 1970s, Defendants also have used so-called brand descriptors such as “light” and “ultra light” to communicate reassuring messages that these are healthier cigarettes and to suggest that smoking low tar cigarettes is an acceptable alternative to quitting. In addition to appealing advertising and easily-remembered brand descriptors, Defendants have used sophisticated marketing imagery such as lighter color cigarette packaging and white tipping paper to reinforce the same message that these brands were low in tar and therefore less harmful____ Even as they engaged in a campaign to market and promote filtered and low tar cigarettes as less harmful than conventional ones, Defendants either lacked evidence to substantiate their claims or knew them to be false. Indeed, internal industry documents reveal Defendants’ awareness by the late 1960s/early 1970s that, because low tar cigarettes do not actually deliver the low levels of tar and nicotine which are advertised, they are unlikely to provide any clear health benefit to human smokers ... when compared to regular, full flavor cigarettes. As Defendants have long been aware, nicotine delivered by cigarettes is addictive .... Defendants’ internal documents demonstrate their understanding that, in order to obtain an amount of nicotine sufficient to satisfy their addiction, smokers of low tar cigarettes modify their smoking behavior, or “compensate,” for the reduced-nicotine yields by taking more frequent puffs, inhaling smoke more deeply, holding smoke in their lungs longer, covering cigarette ventilation holes with fingers or lips, and/or smoking more cigarettes.... As a result of this nicotine-driven smoker behavior, smokers of light cigarettes boost their intake of tar, thus negating what Defendants have long promoted as the primary health-related benefit of light cigarettes: lower tar intake. Defendants did not disclose the full extent and depth of their knowledge and understanding of smoker compensation to the public health community or to government regulators. Defendants’ conduct relating to low tar cigarettes was intended to further their overarching economic goal: to keep smokers smoking; to stop smokers from quitting; to encourage people ... to start smoking; and to maintain or increase corporate profits. United States v. Philip Morris, at 449 F.Supp.2d at 430-43. D. Other “Light” Cigarette Fraud Actions Class actions alleging fraud in the sales and marketing of “light” cigarettes have been brought in a number of state — and occasionally federal — courts in the past several years. See, e.g., FLANAGAN V. ALTRIA GROUP, INC., No. 05-71697, 2005 WL 3719112 (E.