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Court Decision a Blow to Tobacco

Trial: Minnesota justices decline to review document order; industry lawyers to seek stay.

March 28, 1998|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

ST. PAUL, Minn. — The Minnesota Supreme Court dealt the tobacco industry a major setback Friday, declining to review a trial judge's decision ordering the industry to turn over 39,000 documents that tobacco lawyers have waged a long legal battle to keep secret.

The decision paves the way for the swift release of what are believed to be some of the industry's most damaging internal documents--unless the U.S. Supreme Court grants a stay by Wednesday afternoon, the deadline for compliance set by the Minnesota Supreme Court.

Tobacco industry lawyers said they would seek a stay, contending that the order compelling them to turn over the materials would violate the companies' attorney-client privilege and constitute a violation of due process of law.

The ruling was praised by Minnesota Atty. Gen. Hubert H. Humphrey III and Andy Czajkowski, chief executive officer of Blue Cross/Blue Shield of Minnesota, both of whom said it would help bring an end to the industry's ability to hide vital information about what it knew about the health hazards of its product.

The state and Blue Cross are suing the industry for $1.77 billion in damages, and the trial just finished its ninth week Friday.

As important as the documents may be to that case, they might prove even more important in Congress' consideration of the proposed $368.5-billion national tobacco settlement.

U.S. Rep. Thomas J. Bliley (R-Va.), chairman of the House Commerce Committee, has subpoenaed the documents and ordered the industry to turn them over earlier this month. But he has held off on seeking enforcement of his subpoena, while the industry's appeals have been pending in Minnesota.

Humphrey said Friday that if the documents are as revealing as he anticipates, it will make Congress reluctant to grant the industry the special legal protections it seeks.

However, it is also possible that the documents may be no worse than the reams of damaging internal memos that have come to light in recent years.

Ramsey County District Judge Kenneth J. Fitzpatrick, who is presiding over the trial, ordered the documents released in early March, saying the papers show evidence of crime or fraud.

He also released a lengthy report of a special master who selectively reviewed 700 of 230,000 documents he industry sought to keep secret, saying they revealed a stark contradiction between the companies' public positions and what they knew in private.

The master also said the industry was entitled to keep about 190,000 of the documents confidential based on reviewing batches of papers in 14 categories, under a procedure the judge instituted last year.

The master's report--endorsed by Fitzpatrick--states the industry improperly used lawyers to hide research about nicotine, the addictive nature of cigarettes and the brand preferences of children as young as 5 years old.

Moreover, the master said the companies' claims of privilege were overly broad, including assertions of privilege over thousands of communications about scientific research rather than legal advice. Earlier in the case, Fitzpatrick issued a ruling saying the industry engaged in "conspiracy of silence and suppression of scientific research."

Several law professors interviewed by The Times all said they thought it was unlikely that the Supreme Court would give the industry a stay.

Erwin Chemerinsky of USC and Stephen Gillers of New York University said it would be highly unusual for the U.S. Supreme Court to interfere with an ongoing state court proceeding on an issue of this type.

John C. Coffee of Columbia Law School stressed that if the Supreme Court issued a stay, it could prevent jurors in the case here from learning about any of the documents because the high court probably would not be able to fully consider the issue until after the trial has ended.

However, the cigarette companies contend they would be "irreparably injured" by the release, saying that once the papers become public any subsequent appellate ruling on their behalf would be a victory of limited benefit.

The industry has raised several objections to Fitzpatrick's decision and the review in batches method used to reach it. The cigarette companies maintain that they are entitled to a document-by-document review before a decision is made on whether all the contested papers are privileged.

However, Fitzpatrick said earlier that if the special master spent only five minutes reviewing each contested document, a review would take more than six years and unfairly prejudice the plaintiffs.

In its brief decision Friday, the Minnesota Supreme Court said it was not ruling on "the propriety of the process" Fitzpatrick used to review the material. Rather, the court said the "extraordinary relief" the companies were seeking--document by document review--is a "practical impossibility."

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