UNITED STATES DISTRICT COURT



UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

_______________________________________________

NYC C.L.A.S.H., INC., 03-Civ. 5463 (VM)

Plaintiff,

AFFIDAVIT OF KEVIN T.

- against - MULHEARN IN SUPPORT

OF PLAINTIFF’S CROSS-

MOTION FOR SUMMARY

CITY OF NEW YORK, THOMAS R. FRIEDEN, IN JUDGMENT

HIS OFFICIAL CAPACITY AS COMMISSIONER OF

THE CITY OF NEW YORK DEPARTMENT OF HEALTH

AND MENTAL HYGIENE, ELIOT SPITZER, IN HIS

OFFICIAL CAPACITY AS ATTORNEY GENERAL OF

THE STATE OF NEW YORK AND ANTONIA C.

NOVELLO, IN HER OFFICIAL CAPACITY AS

COMMISSIONER OF THE NEW YORK STATE

DEPARTMENT OF HEALTH,

Defendants.

_______________________________________________

STATE OF NEW YORK :

: ss.:

COUNTY OF ROCKLAND :

KEVIN T. MULHEARN, being duly sworn, deposes and says that:

1. I am Plaintiff’s attorney in this action.

2. I submit this affidavit in support of Plaintiff’s cross-motion for summary

judgment, pursuant to Federal Rule 56 of the Federal Rules of Civil Procedure and in opposition

to State Defendants’ and Municipal Defendants’ respective motions to dismiss the amended complaint pursuant to the Federal Rules of Civil Procedure, Rule 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rules of Civil Procedure, Rule 56(b).

3. On December 18, 2002, the New York City Council enacted Local Law 47 of 2002, which substantially amended the New York City Smoke-Free Air Act (Chapter 5 of Title 17 of the Administrative Code of the City of New York). Local Law 47 became effective as of March 30, 2003. Annexed as Exhibit D to the Affidavit of Ave Maria Brennan is a true and accurate copy of Local Law 47.

4. On March 26, 2003, the Governor of New York signed into law Chapter 13 of the Laws of 2003 (Senate/Assembly bill S.3292/A.7136) (“Chapter 13”), which was titled “An act to amend New York’s Public Health Law and the Education Law, in relation to the regulation of smoking in certain public areas.” Chapter 13 became effective on July 24, 2003 and has been incorporated into New York’s Public Health Law (“PHL”) Article 13-E. Chapter 13 amended what is popularly know as the Clean Indoor Act. Annexed as Exhibit 1 to the Affidavit of John P. Gasior is a true and accurate copy of Chapter 13.

5. Annexed hereto as Exhibit A is a true and accurate copy of Memoranda of the New York State Assembly and New York State Senate in support of Chapter 13.

6. Annexed hereto as Exhibit B is a true and accurate copy of a letter of State Senator Martin Connor, dated March 31, 2003, to a constituent.

7. Annexed hereto as Exhibit C is a true and accurate copy of Flue-Cured Tobacco Cooperative Stabilization Corp. v. U.S. EPA, 4 F. Supp. 2d 435 (M.D.N.C. 1998), a decision by the Honorable William Osteen which voided the EPA Report of 1992 on the grounds of its flawed science.

8. Annexed hereto as Exhibit D is a true and accurate copy of a Report of Hon. Thomas J. Bliley, Jr. (7th District, Virginia), dated July 21, 1993, regarding conflicts of interest in the preparation of the 1992 EPA Report on Secondhand Smoke as presented to a Congressional Hearing .

9. Annexed hereto as Exhibit E is a true and accurate copy of a Transcript of Testimony of noted Yale epidemiologist Dr. Alvan Feinstein before the Congressional Subcommittee on Health and the Environment dated July 21, 1993, which criticizes the 1992 EPA Report on Secondhand Smoke.

10. Annexed hereto as Exhibit F is a true and accurate copy of an article: “Pandora’s Box: The Dangers of Politically Corrupted Science for Democratic Public Policy, John C. Luik, Bostonia, Winter 1993-94, in which the author contends that the corrupted science manifested by the 1992 EPA Report on Secondhand Smoke “inflict[s] substantial pain on the entire class of people [i.e., smokers] without their consent and for no compelling reason.”

11. Annexed hereto as Exhibit G is a true and accurate copy of an article: “Risk Reassessment”, Jacob Sullum, Reasonline, dated July 22, 1998, in which the author discusses Judge Osteen’s criticism of the EPA’s data and manipulation of science.

12. Annexed hereto as Exhibit H is a true and accurate copy of an article: “Passive Smoking Doesn’t Cause Cancer - Official”, Victoria MacDonald, International News, dated March 8, 1998, in which the author summarizes a World Health Organization (WHO) study which concludes that there is no link between passive smoking and lung cancer.

13. Annexed hereto as Exhibit I is a true and accurate copy of an article: “Environmental Tobacco Smoke and Coronary Heart Syndromes: Absence of an Association”, Gio Batta Gori, Regulatory Toxicology and Pharmacology 21, 281-295, 1995.

14. Annexed hereto as Exhibit J is a true and accurate copy of an article: “Science, Politics, and Ethics: The Case of Environmental Tobacco Smoke,” Gio Batta Gori, Journal of Clinical Epidemiology, Vol. 47, No. 4, 1994, in which the author reviews and analyzes ETS science and discusses its social and political ramifications.

15. Annexed hereto as Exhibit K is a true and accurate copy of an article: “The Politicized Science of Tobacco Policy”, Martha Perske, Regulation, No. 3, 1995, in which the author describes how the 1992 EPA Report on Secondhand Smoke evolved through political manipulation of science.

16. Annexed hereto as Exhibit L is a true and accurate copy of a Congressional Research Service Report to Congress: “Environmental Tobacco Smoke and Lung Cancer Risk, dated November 14, 1995, which criticizes the 1992 EPA Report on Secondhand Smoke, as well as a true and accurate copy of an editorial “Up in Smoke”, Investor’s Business Daily, Nov. 29, 1995, which summarizes the U.S. Congressional Research Service Report.

17. Annexed hereto as Exhibit M is a true and accurate copy of a study: “Multicenter Case - Control Study of Exposure to Environmental Tobacco Smoke in Europe”, Boffetta, et al., Journal of the National Cancer Institute, Vol. 90, No. 19, October 7, 1998, showing no statistically significant increased risk from ETS exposure for adults, and a protective effect for children..

18. Annexed hereto as Exhibit N is a true and accurate copy of a Department of Energy/Oak Ridge National Laboratory Press Release, dated February 7, 2000, summarizing its study of air quality as actually measured in restaurants and bars in U.S. cities and the actual measured exposure of the staffs.

19. Annexed hereto as Exhibit O is a true and accurate copy of an article: “Environmental Tobacco Smoke - and Tobacco-Related Mortality in Prospective Study of Californians, 1960-98”, Enstrom & Kabat, British Medical Journal, May 17, 2003, showing no relationship between ETS and either heart disease or lung cancer.

20. Annexed hereto as Exhibit P is a true and accurate copy of a Public Comment: “Toxic Toxicology: Placing Scientific Credibility at Risk,” Littlewood & Fennell, September 15, 1999, as presented to the National Toxicology Program, (as well as selected excerpts from The NTP Board of Scientific Counselors on Carcinogens Subcommittee Meeting).

21. Annexed hereto as Exhibit Q is a true and accurate copy of a Public Comment: “Environmental Tobacco Smoke: No Convincing Evidence of Carcinogenity”, Littlewood & Fennell, February 8, 1999, reviewing the extant ETS science.

22. Annexed hereto as Exhibit R is a true and accurate copy of an affidavit of Ronald Tramontano, sworn to on August 10, 2003.

23. Mr. Tramontano is the Director of the New York State Department of Health, Center for Environmental Health, and his affidavit discusses, inter alia, how the New York State Department of Health makes determinations on whether an establishment is a “bar” (where outdoor smoking is not permitted) or “food service establishment” (where outdoor smoking is permitted) on an ad hoc basis.

24. Annexed hereto as Exhibit T is a true and accurate copy of an article: “Smoked Out: Mayor Bloomberg Exaggerates Secondhand Smoke Risk,” Elizabeth Whelan, American Council on Science and Health, December 12, 2002.

25. Annexed hereto as Exhibit U is a true and accurate copy of a Testimony of Thomas R. Frieden before the New York City Council, Committee on Health, dated October 10, 2002.

26. Linda Stewart, a resident of New York City and a member of NYC C.L.A.S.H., is a noted professional writer and journalist.

27. Her background, as relevant to the matter at hand, includes a three year stint as editor and major writer for Consumer Action Now, a monthly environmental/consumer publication, which frequently dealt in depth with scientific issues. She has also contributed articles on these and related subjects to major magazines, including Ms. And Family Health.

28. Over a period of several years, Ms. Stewart has compiled voluminous data and written numerous position papers which detail the negative sociological and psychological effects of the anti-smoking crusade, and has extensively analyzed the questionable science which has served as the false premise for the Defendants’ (and others’) legislated bans.

29. The following documents, paragraph numbered “30” through “48”, consist of Ms. Stewart’s position papers and compilations on the relevant issues.

30. Annexed hereto as Exhibit V is a true and accurate copy of “Smoking = Smoker”, in which Ms. Stewart, citing testimony from many well-known sources, contends that smoking is an inherent and even a defining attribute of smokers.

31. Annexed hereto as Exhibit W is a true and accurate copy of “Smokers Are a

Class Because They’re Treated as a Class (and a “Second Class” at That)”, in which Ms. Stewart demonstrates that the anti-smoking crusade has purposely and knowingly turned smokers into a class and has ostracized them as such, preventing them from having equal footing with non-smokers. (See also Exhibit S hereto, a true and accurate copy of an article: “Them: The One Group for Whom Liberals Have no Tolerance at All”, Peggy Noonan, Wall Street Journal, November 15, 2002, in which the author bemoans the ostracization of smokers by proponents of the anti-smoking bans).

32. Annexed hereto as Exhibit X is a true and accurate copy of “Smoking as Speech”,

in which Ms. Stewart provides support for the proposition that smoking constitutes not only expressive speech with a well-understood message but also a form of political speech.

33. Annexed hereto as Exhibit Y is a true and accurate copy of “Active Smoking

v. Passive Smoking: Not Equivalent and Not Analogous”, in which, with citations from many experts, Ms. Stewart demonstrates the title’s proposition: that conclusions of risk to health cannot be extrapolated from active smoking as Defendants and others contend.

34. Annexed hereto as Exhibit Z is a true and accurate copy of “Doing Numbers”, in

which Ms. Stewart demonstrates that the alleged numbers of deaths attributed to ETS by Defendants and others has no basis in fact. (See also Whelan Article, annexed hereto as Ex. 24).

35. Annexed hereto as Exhibit AA is a true and accurate copy of “How to Read a

Study”, in which Ms. Stewart provides a primer as to how to make sense of various scientific studies regarding ETS - and in passing deconstructs a number of such studies set forth by Defendants.

36. Annexed hereto as Exhibit BB-1 is a true and accurate copy of “The Surgeon General on Smoking in the Workplace”, which discusses those elements of the Surgeon General’s Report of 1986 that relate to workplace smoking, and which again cites experts and other researchers who found that there was no causal connection between workplace exposure to ETS and any risks to health.

37. Annexed hereto as Exhibit CC is a true and accurate copy of “Restaurant

Workers and Restaurant Air”, in which, among other things, Ms. Stewart discusses the studies that were cited by the State involving restaurant workers.

38. Annexed hereto as Exhibit DD is a true and accurate copy of “The Air, According

to OSHA”, in which Ms. Stewart demonstrates that the air in indoor places in which smoking is permitted falls well within the parameters of what OSHA considers “safe”.

39. Annexed hereto as Exhibit EE is a true and accurate copy of “The EPA Report”

(with true and accurate copies of internal EPA documents), in which Ms. Stewart again discusses and analyzes the EPA’s landmark 1992 Report.

40. Annexed hereto as Exhibit FF is a true and accurate copy of “Evidence Presented

to the State Legislature”: One-Sided and . . . unread?”, in which Ms. Stewart makes the case that the material provided to state legislators who were voting on chapter 13 was so voluminous and complex as to make it impossible for the legislators to have read or absorbed it, given the truncated schedule for legislative debate.

41. Annexed hereto as Exhibit GG is a true and accurate copy of The “No Safe Level

of Exposure Theory: Busted!”, in which Ms. Stewart demonstrates, with citations from experts, that ETS obeys the same laws as other substances for which there are always safe levels of exposure.

42. Annexed hereto as Exhibit HH is a true and accurate copy of “Animal Testing:

The Rat and I”, in which Ms, Stewart demonstrates, with citations from experts, that animal testing, as relied upon by Defendants and others, often has little bearing on human responses.

43. Annexed hereto as Exhibit II is a true and accurate copy of “Lung Cancer and

ETS in the Surgeon General’s Report: The 13 Underlying Epidemiological Studies”, in which Ms. Stewart analyses each of the epidemiological studies of exposure to ETS and lung cancer.

Similarly, annexed hereto as Exhibit BB-2 is a true and accurate copy of “Report on the Surgeon General’s Report”, in which Ms. Stewart discusses how scientific studies contradict the 1986 Report of the Surgeon General on the health impact of secondhand smoke, once again citing the comments of many experts.

44. Annexed hereto as Exhibit JJ is a true and accurate copy of “ETS and Heart

Disease”, which incorporates “ETS and the Heart: The CEPA Report”, and again cites many researchers and experts in its analysis of this quite controversial issue.

45. Annexed hereto as Exhibit JJ is a true and accurate copy of “ETS and Asthma”,

in which Ms. Stewart demonstrates, again citing experts, that ETS does not enhance the risk of initiating asthma, and that its role as a trigger is not clear cut.

46. Annexed hereto as Exhibit NN is a true and accurate copy of “Ventilation:

Clearing the Air or Just Fanning the Flames?”, in which Ms. Stewart, citing experts and other researchers, examines the issue of ventilation in clearing ETS from the air.

47. Annexed hereto as Exhibit OO is a true and accurate copy of “Tactics Used in the

War on Smokers” an excerpt from “The Case Against Smoking Bans”, in which, among other things, Ms. Stewart explores and documents the use of ad hominem attacks on anyone who opposes the entrenched anti-smoking agenda.

48. Annexed hereto as Exhibit PP is a true and accurate copy of “Prohibition Politics

and Personalities”, which discusses some of the major players in the anti-smoking crusade, many of whom have been directly involved in both the New York City and New York State political process.

WHEREFORE, based on the aforesaid, deponent prays for an order granting Plaintiffs’ application for relief in its entirety and denying Defendants’ respective applications for relief in their entirety.

______________________________

KEVIN T. MULHEARN (KM 2301)

Sworn to before me on

this _____ day of January, 2004

_________________________

NOTARY PUBLIC

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