Sanctions Ordered in Tobacco Case

TIMES LEGAL AFFAIRS WRITER

The judge in Minnesota's massive lawsuit against the tobacco industry has ruled that the nation's major cigarette companies have "willfully and deliberately disregarded and violated" court orders by failing to produce documents they had been ordered to turn over.

Ramsey County District Court Judge Kenneth J. Fitzpatrick also ruled that five major law firms, all longtime representatives of the industry, "participated in the willful and deliberate disregard and violation" of a court order by failing to produce two "joint defense" documents to which the law firms were signatories. The judge lodged the rulings in a court computer system Friday night, and they were made public Monday.

In both instances, Fitzpatrick said that sanctions, including monetary penalties, were appropriate under Minnesota court rules, but he deferred the imposition of sanctions until a later date.

However, in a sweeping order the judge directed the defendants and their law firms to turn over by Friday any document or other material that "contains, embodies, reflects or alludes to any joint defense agreements or understandings [whether oral, written, 'hinted at' or suggested in any fashion]" between the companies, their affiliates and their trade associations going back to 1954.

Legal experts said they could not recall a judge ever issuing an order calling for sanctions of all the tobacco firms and several of their leading law firms.

"The judge's order makes it clear that this is a pretty flagrant violation of a direct judicial order," said Richard Daynard, director of the Tobacco Products Liability Project at Northeastern University in Boston.

"It's the first time law firms have been on the hook," said Daynard, whose organization aids individuals and groups suing cigarette companies. "That's very important, because the center of gravity of the litigation has moved to conspiracy charges, and the law firms are in the middle of the conspiracy."

R.J. Reynolds Tobacco Co. spokeswoman Peggy Carter said the company "has never been sanctioned by any court in its nearly 125-year history."

Consequently, Carter said, "The potential raised in this order is of great concern to us. Since the determination on sanctions is not final and is very much still a matter for the court, it's inappropriate for us to comment beyond assuring the citizens of Minnesota that we are undertaking efforts to comply with this order, as we do any court's order, to the best of our ability."

Philip Morris attorney Murray Garnick said, "We're reviewing the orders. It's a little soon for us to have a statement."

Brown & Williamson Tobacco Corp. spokesman Joseph Helewicz said the company has done its best to comply with orders in the case.

The Times was unable to obtain comment from the other defendants or any of the five law firms.

The firms are: New York's Chadbourne & Parke, which has represented American Tobacco (now owned by Brown & Williamson); Kansas City's Shook, Hardy & Bacon, lawyers for Philip Morris and Lorillard; Washington's Covington & Burling, attorneys for the Tobacco Institute; Atlanta's King & Spalding, lead law firm for Brown & Williamson; and Cleveland's Jones, Day, Reavis & Pogue, the lead firm for R.J. Reynolds.

At the heart of the allegations in suits filed by Minnesota and 40 other states is the contention that the industry launched a four-decade conspiracy in 1954 with the nationwide publication of the so-called Frank Statement, pledging to engage in independent scientific research about smoking's impact on health, and the formation of a "research council" whose true purpose was to lure the public into the belief that smoking was not hazardous.

The suits also alleged that the industry used lawyers to shield damaging scientific research from public view. The industry has denied all these charges.

Fitzpatrick's ruling is the latest of several issued during the case criticizing the conduct of the defendants.

In March, he said that Philip Morris had engaged in "an egregious attempt to hide" relevant information sought by the state of Minnesota in the case.

More recently, in September, the special master reviewing confidential documents in the case recommended that the industry be compelled to turn over to the Minnesota attorney general 834 internal documents that the industry was trying to keep secret.

The master, Mark W. Gehan, found that the major companies "acted in concert to create a false controversy about the health risks of smoking."

The industry appealed Gehan's recommendation to Fitzpatrick, and a decision is expected shortly.

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