Big Tobacco’s Files Opened for Trial Use

The U.S. Supreme Court on Monday paved the way for the release of 39,000 highly confidential tobacco industry documents that critics predicted will disclose a whole new level of dubious and perhaps illegal behavior by Big Tobacco over several decades.

The massive cache of materials was released for use in a major trial in Minnesota, and copies also were turned over to a congressional committee considering legislation to dramatically raise the price of cigarettes and overhaul the way the industry is regulated.

In addition, sources disclosed that Justice Department attorneys investigating possible criminal charges against the industry are seeking to obtain the material as soon as possible. In a March 28 motion to the Supreme Court, industry lawyers said that if the documents were not kept secret, the “defendants will suffer irreparable harm not only to their defense of the Minnesota trial but to their defense of hundreds of other pending cases . . . ,” and added that the materials could have an impact on pending federal grand jury investigations.

Minnesota Atty. Gen. Hubert H. Humphrey III and Andy Czajowski, CEO of Blue Cross/Blue Shield of Minnesota, co-plaintiff in the case, predicted that the impact of the U.S. Supreme Court’s decision will be felt in Congress as well as in the courtroom in Minnesota.

Last June, state attorneys general and the tobacco industry negotiated a proposed $368.5-billion litigation settlement. But the proposal has been toughened in Congress. Last week, the Senate Commerce Committee approved 19 to 1 a bill that would raise the price tag to $516 billion.

“This disclosure of these 39,000 documents will be like 39,000 new lobbyists against the tobacco industry in Washington,” said Sen. Frank Lautenberg (D-N.J.).

A Minnesota trial judge had ordered the release of the documents on March 7, saying that they showed evidence of crime or fraud and a “pattern of abuse” of the attorney-client privilege, under which the industry sought to keep the material secret.

The industry appealed, but a Minnesota appellate court, the Minnesota Supreme Court and finally the nation’s highest court declined to block release of the documents. Monday’s ruling marked the second time in the case that the U.S. Supreme Court declined to review Minnesota court rulings in the case where Minnesota and Blue Cross/Blue Shield of Minnesota are jointly suing the industry for $1.77 billion in damages.

When Judge Kenneth J. Fitzpatrick ordered the documents released on March 7, he made public a 140-page report of a special master who had reviewed a sampling of them to determine if they should be kept confidential.

His report described some documents and said they showed stark contradictions between the companies’ public positions and what their internal documents revealed that they knew in private about the health hazards of smoking, the addictive nature of nicotine and industry efforts to entice youngsters to begin smoking, as well as industry lawyers’ control over scientific research.

One undated company document described research on the “starting [smoking] behavior of children as young as 5 years old.” A 1959 report by the British American Tobacco Co. expressed fears about “destroying the nicotine habit in a large number of consumers and preventing it ever being acquired by new smokers.” A 1957 memo from an R.J. Reynolds scientist termed cigarette smoking “a lethal habit with some addiction involved.”

To this day, cigarette company officials deny that their products are addictive and maintain that there is no proven causal link between smoking and disease.

Shortly after the Supreme Court’s one-sentence order Monday, the companies said they would comply. But they said “the decision eviscerates effective legal representation that lies at the core of our legal system.”

Company representatives brought 107 boxes of documents to the Minneapolis offices of Robins, Kaplan, Miller & Ciresi, the law firm representing the plaintiffs. A team of attorneys there immediately started wading through the material. Later in the day, after reviewing some of the documents, lead attorney Michael Ciresi said, “They’re good.”

Ciresi said the state might use some of them as early as Wednesday in cross-examining a defense witness from British American Tobacco.

Later Monday, the industry also turned over the documents to the House Commerce Committee in a slightly different fashion--31 file boxes and 33 computer disks. The industry acted in response to a threat by committee chairman Rep. Tom Bliley (R-Va.) that if the documents were not surrendered immediately, he would initiate contempt of Congress proceedings. Bliley had subpoenaed the documents in March after Fitzpatrick’s ruling, but had held off trying to enforce compliance while the industry pursued its appeals.

“After a bipartisan committee review of the documents, I hope to release them to the public on our Web site, and to the media on CD-ROM,” Bliley said late Monday.