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Tobacco Firms Use Historian to Show Awareness of Risk

Trial: Industry launches defense in Minnesota suit by trying to demonstrate citizens were informed of health hazards.

March 26, 1998|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

ST. PAUL, Minn. — Using a strategy that has proved successful in the past, the tobacco industry this week launched its defense against Minnesota's massive lawsuit by calling a well-regarded historian, who told the jury that there had been widespread concern and considerable publicity about the health hazards of smoking for many years.

As the lead defense witness, University of Minnesota professor Hyman Berman cited numerous newspaper articles, television documentaries, school curricula, anti-smoking legislation and material from popular culture as among the ways that state residents and public officials learned that cigarettes could endanger them.

As one example, Berman cited a 1940s Tex Williams song with the lyrics: "Smoke, smoke, smoke that cigarette/Puff, puff, puff and if you smoke yourself to death. . . ./ Nicotine slaves are all the same." He also cited anti-smoking statements from a range of prominent individuals, including former Surgeon General C. Everett Koop.

Decades ago, Berman testified, Minnesota residents were referring to cigarettes as "coffin nails," "cancer sticks" and "little white slavers." And the state even banned the sale of cigarettes for four years, he said, starting in 1909, before repealing the law and instituting formal regulations governing their sale in 1913.

Moreover, Berman said there has been such widespread media coverage in the state about the dangers of smoking that by 1964, 80% of all Minnesotans believed cigarettes to be a "hazard to health" and that the percentage rose to a "remarkable" 93% by 1969.

What did not come out in court Wednesday is that the industry maintained a far different public position at that time. Despite the negative publicity Berman alluded to, tobacco executives maintained that there was no clear proof that smoking adversely affected health.

But Gregory G. Little, associate general counsel for the Philip Morris Cos., said the industry used Berman to begin its case because it wanted to hammer home the point that the public was well aware of the health debate over tobacco.

"Awareness goes to the very heart of the state's case and our defense," Little said in an interview at the courthouse. The plaintiffs are "trying to hide the fact that it's absurd for the state of Minnesota to say it was misled about the risks of smoking."

The state contends that the cigarette companies deceived the public and government officials about the hazards of smoking and covered up what they knew about the link between smoking and disease and the addictive nature of nicotine.

Minnesota and co-plaintiff Blue Cross/Blue Shield are seeking $1.77 billion in damages for costs of treating sick smokers. The state is seeking additional damages for alleged violations of its antitrust and consumer fraud laws. The case is the first of 40 state lawsuits against the industry to go to trial.

Berman's direct testimony is expected to conclude today. After the cross-examination, the defense plans to call 39 other witnesses, including industry executives, scientists and marketing personnel.

They also plan to call hostile witnesses, including Minnesota Atty. Gen. Hubert H. Humphrey III, who filed the massive case in August 1994 and has emerged as one of the industry's major adversaries.

The trial, now in its ninth week, is set against the backdrop of continuing congressional consideration of a $368.5-billion national tobacco settlement, which Humphrey has repeatedly blasted as a bailout for the industry. It is anticipated that the defense will take between one and two months to present its case.

Little said industry attorneys hope to convince jurors of three basic points: The cigarette companies did nothing wrong; the state was aware of the hazards of smoking but failed to take stronger action in order to continue to collect millions in tax revenue from cigarette sales annually; and that nothing the industry did can be linked to any losses suffered by the state or its co-plaintiff, Blue Cross/Blue Shield of Minnesota.

However, Ramsey County District Court Judge Kenneth J. Fitzpatrick on Wednesday reiterated an earlier ruling that he will not permit the industry to present evidence about the total amount of excise taxes the state has collected.

The avuncular Berman is the latest historian to be utilized by the tobacco industry, which has hired academics from various parts of the country to serve as expert witnesses in virtually every case against it.

Columbia University law professor John C. Coffee Jr. said the approach has worked well in cases brought by individual smokers--only one of which has been lost by a cigarette company.

However, the tactic clearly has its risks, particularly with a free-spirited witness like Berman, who specializes in contemporary American history, including labor history, Minnesota history and Jewish history.

For example, Berman said that the 1964 surgeon general's report--the first government report to link lung cancer to smoking, contradicting the industry's position--"for all practical purposes ended the debate over smoking and health. I think the . . . report closed that debate for most scientists and most scientific observers."

On the other hand, Berman told jurors that the state had permitted underage juveniles in correctional facilities to smoke and that there was a lengthy period when the state did not vigorously enforce its laws prohibiting smoking by minors.

* RELATED STORY: A22

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