MPR: Tobacco Company Documents Played Key Role in Trial

Tobacco Company Documents
Played Key Role in Trial
By Laura McCallum
May 8, 1998

Internal tobacco company documents in the Minnesota trial have been called everything from "smoking howitzers" to the "crown jewels of the conspiracy." Some trial observers say they prove tobacco companies lied to the public, others say they merely embarrassed the industry.

ATTORNEYS BOMBARDED THE TWELVE JURORS WITH PAPERWORK throughout this trial - from fat research tomes jokingly compared to War and Peace to THE DOCUMENTS - those formerly secret tobacco company memos that industry critics say document corporate conspiracy and lawyer cover-ups. Attorneys for the state and Blue Cross-Blue Shield say these papers distinguish their case from previous efforts to take on tobacco. They introduced about 2,000 internal documents into evidence during the trial - some tout the benefits of nicotine, "a potent drug," others talk of targeting 14- to 24-year-olds. A member of the state's trial team says among the most significant are handwritten notes by a top Philip Morris scientist instructing documents to be shipped overseas or sent to his home for destruction.

Minneapolis attorney Mike Weiner, who brought Minnesota's first lawsuit against the tobacco industry on behalf of a smoker in 1984, says the documents are devastating to tobacco companies because they show the companies misled the public about the health risks of smoking for decades.

Weiner: The magnitude of the documents shows how massive the effort was, how long-standing it was - almost every document could really be the smoking-gun document because it shows the tobacco companies knew despite their public position.

Tobacco company lawyers argue the state has taken its memos out of context - they call some of the state's witnesses "document delivery devices" who merely speculate on what the documents' authors must have meant when they wrote them decades ago. And at least one legal analyst isn't convinced they proved the state's claims of an industry-wide effort to market to teens and a long-standing conspiracy to suppress smoking and health research. David Logan is a law professor at Wake Forest University in Winston-Salem, North Carolina.

Logan: Clearly there were embarrassing documents about how tobacco companies were not candid, and were not forthright, and certainly not aggressive about pursuing the public health consequences of use of their products. But, you know, I think most everybody who hasn't been in a cave for the last 10 years, maybe not even the last 30 years, knew that going into the Minnesota trial, too. So I'm not sure how, at the end of the day, very many of the documents added a whole lot to Minnesota's - and Blue Cross' - case.

Trial observer Joseph Daly, who teaches trial law at Hamline University, says the documents are what gave Minnesota the ammunition to go to trial. He considers two of them critical - and they're not among the 39,000 tobacco companies fought bitterly to keep secret. One isn't even an internal company memo - it's the so-called "Frank Statement" - a tobacco company ad to smokers that appeared in newspapers across the country in 1954, pledging the industry's commitment to researching the health hazards of smoking. The state's attorneys say from that moment on, the industry had the obligation to share all it knew about the dangers of smoking with the public. The first thing the jury will decide is whether they violated that duty.

Daly says the other key document comes five years later - a memo by three British tobacco scientists on a trip to the US reporting that the American scientific community concluded smoking causes lung cancer - something the companies have never admitted publicly, and which their trial witnesses insist hasn't been proven.

Daly: And, instead of doing what they promised they'd do to the public, they did almost just the opposite - and there is document after document after document.

Daly thinks the state and Blue Cross have presented an overwhelming case of fraud, but he's not so sure they've proven that the industry's conduct led to the damages the state claims. That goes to the heart of tobacco companies' defense, and may explain why they practically ignored their internal documents while questioning their witnesses. Philip Morris attorney Greg Little argues the papers don't overcome the weaknesses in the state's case.

Little: There are two key flaws to their case - one is that the state simply was not misled. The second key flaw is that even if the state was correct in all of its wild allegations about company misconduct, there's no causal link between what the state alleges happened and the damages that they allege that they've suffered.

Some legal analysts believe even if the state hasn't been as convincing with its damage estimate, jurors may be so outraged over what they read in the internal memos, they'll side with the state. Hamline's Joe Daly says he's tried cases where the defendant's conduct was so blatantly negligent, jurors didn't question the damage amount.

Daly: Even if you can prove a little bit of damages, the jury gets so mad at what they've done, and they're so angry at what they've done, that they're willing to say, "Ok, it has to be at least this much and now, the judge told us that we can use punitive damages on top of this; let's really hit 'em."

Judge Fitzpatrick's instructions to the jury didn't specifically address the role of the documents in the case, but he did tell jurors if any defendants destroyed documents, they should assume the worst - that the papers would have been damaging to the tobacco industry.

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