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Tobacco Suit Reviewer Finds Industry Conspiracy

September 24, 1997|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

The special master reviewing confidential documents in Minnesota's massive lawsuit against the tobacco industry has found that the major cigarette companies "acted in concert to create a false controversy about the health risks of smoking" and made repeated misstatements to the citizens of Minnesota "denying or diminishing the health effects of smoking," according to a court document filed Tuesday.

Among Special Master Mark W. Gehan's findings was that the companies acted in concert to create the false controversy when they published the so-called Frank Statement in 1954, pledging to engage in independent scientific research about smoking's impacts on health.

At the heart of the allegations in suits filed by Minnesota and 40 other states is the allegation that the industry launched a four-decade conspiracy with the publication of the Frank Statement and the formation of a "research council" whose true purpose was to lure the public into the belief that smoking was not hazardous.

Gehan also concluded that the companies utilized the research group--the Council for Tobacco Research--and its lobbying arm--the Tobacco Institute--to "make public misstatements about the smoking and health controversy and to have lawyers control, direct and influence ongoing scientific research," according to the document filed in a St. Paul court.

Gehan reached those conclusions earlier this month while reviewing more than 2,500 internal industry documents the state is seeking to obtain during pretrial discovery in the multibillion-dollar case, scheduled for trial in January.

As part of the underpinning of his decision, Gehan relied on a 1964 report on the U.S. cigarette industry written by two British tobacco industry researchers.

The scientists said the Committee of Counsel, a group of attorneys representing U.S. cigarette companies, "is extremely powerful. . . . It determines the high policy of the industry on all smoking and health matters--research and public relations matters, for example, as well as legal matters--and it reports directly to the tobacco companies' presidents."

In addition, Gehan relied on a bevy of other internal industry documents, including some that led him to conclude that BAT Industries (the British-based parent of Brown & Williamson Tobacco Corp., the third-largest cigarette maker in the U.S.) was "a driving force behind the direction of and the suppression of scientific research."

On Sept. 10, Gehan recommended to Judge Kenneth Fitzpatrick that the industry be compelled to turn over 834 of the documents that the industry is trying to keep secret.

The industry has attempted to shield the documents on the grounds that they were protected by the attorney-client privilege. But Gehan concluded that the documents should be released under an exception that comes into play when there is evidence of a crime or fraud.

In the motion they just filed, BAT attorneys contend that BAT should not be lumped in with the U.S. tobacco companies because they were not parties to the conduct described in Gehan's report.

It was not immediately apparent why BAT's attorneys filed their objections publicly. Attorneys for all the other cigarette companies filed their objections under seal. Attorneys for BAT declined to comment.

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