4 Tobacco Firms Seek a Mistrial

The nation’s four largest tobacco companies filed a motion Wednesday calling on Judge Kenneth J. Fitzpatrick to order a mistrial in the massive case filed against them by the state of Minnesota and Blue Cross/Blue Shield of Minnesota.

The motion contends that Fitzpatrick, a veteran Ramsey County district judge, should remove himself from the proceedings, based on alleged fairness.

Fitzpatrick has been presiding over the case since it was filed in August 1994. The trial is in its eighth week in St. Paul. Previously, the industry has appealed several of Fitzpatrick’s rulings, taking one to the U.S. Supreme Court. The industry has lost all of those appeals.

The motion was filed just four days after Fitzpatrick issued a stinging decision saying the industry must turn over to the plaintiffs 39,000 confidential documents that the companies have waged a long legal battle to keep secret. That order is on appeal.

“This court has made clear that it cannot and will not give these defendants a fair trial,” the motion said. “The court has clearly prejudiced the merits and plainly demonstrated bias by repeatedly directing hostile language at the defendants.”

In Wednesday’s 38-page motion, attorneys for the cigarette makers asserted that Fitzpatrick:

* Selectively misapplied Minnesota law regarding juror bias in the jury-selection process to “systematically favor” individuals aligned with the judge’s views on the case.

* Permitted the plaintiffs to make factually inaccurate and highly prejudicial statements in front of the jury, while “disparaging” positions taken by the defendants, in one instance characterizing them as akin to arguing that “the sun sets in the East.”

* Applied a double standard in evidentiary rulings, “excluding or limiting the defendants’ questioning, while granting the plaintiffs’ unprecedented leeway.”

* Compelled all the defendants to cross-examine each plaintiff’s witness through one attorney, even though there are numerous defendants in the case.

Defense lawyers also registered a strong objection to Fitzpatrick’s description of certain industry documents as “some of the darkest bowels of the tobacco industry.”

The attorneys said they would appeal if the judge refuses to step down.

Fitzpatrick had no immediate response to the motion.

But Michael Ciresi, lead attorney for the plaintiffs, issued a sharp retort to the motion. “This is an absolutely desperate measure,” Ciresi told reporters. The motion “has no basis in fact or law,” he said.

The plaintiffs are seeking $1.77 billion in damages for money spent treating sick smokers. Minnesota is also seeking additional damages for alleged violations of state consumer and antitrust statutes.

The defendants include Philip Morris, R.J. Reynolds Tobacco, Brown & Williamson Tobacco, Lorillard Tobacco, B&W;’s British-based parent company, BAT Industries, BAT subsidiary British American Tobacco, the Tobacco Institute and the Council for Tobacco Research.