The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Four different Motions have been filed for leave to file
amici curiae briefs in support of the Plaintiff United
States. Three of them explicitly state that they wish to address
only the issue of remedies. The fourth, on behalf of the Citizens
Commission to Protect the Truth, may be addressing issues other
than those of remedies. The Motions are brought on behalf of the
Citizens Commission to Protect the Truth; the Regents of the
University of California; the Tobacco Control Legal Consortium
and 18 additional non-profit organizations; and Essential Action,
the City and County of San Francisco, the Asian Pacific Island
American Health Forum, San Francisco African-American Tobacco
Free Project and the Black Network in Children's Emotional
Health. The Defendants vigorously oppose submission of the
amici briefs. Upon consideration of all the papers, the case
law, and the entire record in this case, the Court concludes that
the Motions should be granted.
There is no question that the "decision whether to allow a
non-party to participate as an amicus curiae is solely within
the broad discretion of the court." Ellsworth Associates, Inc.
v. United States, 917 F. Supp. 841, 846 (D.D.C. 1996).
Interestingly, there is very little case law on this issue. In
one of the few definitions of the phrase "amicus curiae,"
District Judge Glasser of the Eastern District of New York, noted that the phrase "means,
literally, `friend of the court,' serving for the benefit of the
court and for the purpose of assisting the court in cases of
general public interest." United States v. Gotti,
755 F. Supp. 1157
, 1158 (E.D.N.Y. 1991). The Third Circuit has described the
manner in which an amicus may provide important assistance to
Some amicus briefs collect background or factual
references that merit judicial notice. Some friends
of the court are entities with particular expertise
not possessed by any party to the case. Others argue
points deemed too far reaching for emphasis by a
party intent on winning a particular case. Still
others explain the impact a potential holding might
have on an industry or other group.
Neonatology Associates, P.A. v. Commissioner of Internal
Revenue, 293 F.3d 128
, 132 (3d Cir. 2002).
In examining the Motions filed by the four separate movants, it
is clear that the briefs they offer fit into one or more of the
categories mentioned by the Third Circuit. While the Court has a
real concern about expanding the already overflowing record in
this case with the addition of these briefs, and about any
distraction they may present from the major issues, it has
concluded that the possible benefits to be obtained from such
submissions outweigh any possible disadvantages.
It must be noted that those seeking to present the amicus
briefs include some of the most important, experienced, and
knowledgeable entities in the fields of public health, smoking,
and disease. For example, the Citizens' Commission to Protect the
Truth includes all of the former Secretaries of Health & Human
Services, former Surgeon Generals of the United States, and
former Directors of the Centers for Disease Control and
Prevention, who held those positions since 1963. As a further
example, the Tobacco Control Legal Consortium includes the
American Medical Association, the American Public Health
Association, the American Academy of Pediatrics, the American
College of Physicians, and the National Association of County and
City Health Officials. The wealth of knowledge, expertise, experience and devotion to
the nation's public health represented by all of these groups
simply cannot be ignored. There is no question that they may
provide the "unique information or perspective that can help the
court beyond the help that the lawyers for the parties are able
to provide." Cobell v. Norton, 246 F. Supp.2d 59, 62 (D.D.C.
2003). Indeed, it would be just plain foolish to reject such a
Defendants argue at length that the Motions should be denied
because the movants are trying to present new facts which were
not litigated at trial, are attempting to bring in by the back
door expert opinions which have not been reviewed for
admissibility under the applicable legal standards, and are
proposing remedies which are directly contrary to existing law.
If any of these objections are well taken, the Court can easily
identify them and ignore any recommendations or arguments based
upon such inadmissible material.
WHEREFORE, for all these reasons, the Court hereby
ORDERS, that the Motions of the Citizens Commission to
Protect the Truth; the Regents of the University of California;
the Tobacco Control Legal Consortium and 18 additional non-profit
organizations; and Essential Action, the City and County of San
Francisco, the Asian Pacific Island American Health Forum, San
Francisco African-American Tobacco Free Project and the Black
Network in Children's Emotional Health shall be granted and the
amici shall be subject to any subsequent Orders of the Court.
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