Jury Instructions Anger Tobacco Defense

Over strong defense objections, the judge in Minnesota’s massive trial against the tobacco industry here told jurors Wednesday that they essentially could assume the worst from the cigarette companies’ destruction of documents and failure to produce certain witnesses for trial.

The jury instructions, issued by Ramsey County District Judge Kenneth J. Fitzpatrick, could help the plaintiffs prevail in the case where Minnesota and Blue Cross/Blue Shield of Minnesota are seeking $1.77 billion in damages for costs incurred treating sick smokers, legal experts said. The state is seeking additional damages for alleged violations of consumer fraud and antitrust laws.

Judge Fitzpatrick issued the set of instructions for jury deliberations that are now scheduled to begin Friday.

The judge told jurors that they could draw “negative inferences” from the fact that an employee of British American Tobacco Co. destroyed three boxes of documents and that former officials of the company, still under company control, did not come to Minnesota to offer any explanation about why this happened.

He also told the six-man, six-woman jury that they could draw negative inferences from the fact that Brown & Williamson Tobacco Co. failed to produce other documents. Moreover, the judge said the jury could draw a negative conclusion from the fact that a current B&W; scientist and a former Philip Morris research director invoked the 5th Amendment during the trial.

Judge Fitzpatrick also told the jury that: the actions of individual smokers do not insulate the defendants from liability; any alleged fault of the state or Blue Cross/Blue Shield is not at issue; they are not to consider whether the state collected taxes on the sale of cigarettes.

Additionally, for the first time ever in a tobacco trial, a judge told a jury that the five cigarette companies and their research arm had indeed voluntarily undertaken a special duty “to accept an interest in people’s health as a basic responsibility, paramount to every other consideration in their business,” and “to cooperate closely” with those whose “task it is to protect the public health.”

The plaintiffs asserted that the cigarette companies had taken on this responsibility because of promises in the so-called Frank Statement on smoking and health. That industry statement appeared in newspapers around the country in 1954 in an attempt to allay growing concerns about the hazards of smoking.

A clearly pleased plaintiffs’ lawyer Michael Ciresi said the judge had been obligated to make that ruling because the defendants had offered no evidence to rebut the plaintiffs evidence on this issue.

But defense lawyers were clearly very upset about the instructions, with R.J. Reynolds lawyer Robert C. Weber blasting them as “error incarnate.”

Asked if he had ever heard a more adverse set of instructions, Weber responded by referring to a famous trial stemming from protests at the 1968 Democratic convention: “Well, I wasn’t there when Judge [Julius] Hoffman instructed the jury in the Chicago Seven case, so there may have been something worse. But in my experience, this takes the cake.”

On the other hand, Miles Lord, a former federal judge in Minneapolis, who was observing in the courtroom, said afterward that the instructions “were just fine.”

New York University law professor Stephen Gillers said the instructions sounded “perfectly legitimate” to him, though he nonetheless characterized them as “a Christmas tree for the plaintiffs.”

“The missing witness, missing document instruction calls to the jury’s attention an inference it might not otherwise realize it could draw,” Gillers said.

“It’s the kind of instruction the other side hates,” both because it has the judge’s imprimatur and because it tends to undermine the credibility of the defense lawyers as well as their clients, Gillers said.

The two sides are set to begin closing arguments today, and the case should go to the jury Friday afternoon barring a last-minute settlement of continuing negotiations.

Sources close to the negotiations said talks collapsed Wednesday night, and it was not clear when--or if--they would resume. Earlier, the two sides had tentatively agreed to a settlement in the range of $5 billion to $6 billion, but the talks have floundered in recent days over several issues, including Minnesota’s demands for marketing restrictions on tobacco products in the state.

In a speech Wednesday afternoon, Minnesota Atty. Gen. Hubert H. Humphrey said the case could settle only if the industry met his terms--”an iron-clad ban on marketing, full disclosure of the truth and full payment for the harm they have caused.” If the terms aren’t met, Humphrey said he would put the companies’ fate in the hands of the jury.