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At its heart, Minnesota's tobacco case was a fraud and anti-trust case. The state and Blue Cross and Blue Shield claimed tobacco companies violated four Minnesota consumer protection laws, and the state's antitrust law. Count one was whether cigarette makers violated their responsibility to research and disclose the health risks of smoking. Count two was the antitrust claim, whether tobacco companies conspired to suppress research about the health effects of smoking. The next four counts were the consumer protection claims: whether the companies violated the Consumer Fraud Act, the Unlawful Trade Practices Act, the False Statement in Advertising Act, and the Deceptive Trade Practices Act.
It took the state and Blue Cross and Blue Shield two months to present their case to the jury, and the tobacco companies used six weeks to mount their defense.
THE LAWYERS ON EACH SIDE OF THE CASE SPARRED even before the trial. In mid-January, the state's lead attorney, Mike Ciresi, crashed a tobacco industry press briefing and told tobacco officials it was inappropriate to call a press conference just before jury selection.
Ciresi: You have Mr. Sipkins up here, the lawyer for Philip Morris, you have other lawyers up here. I'm lucky I found out about this.Pretrial rancor gave way to courtroom civility early in jury selection. About 50 attorneys from elite national law firms filled half the courtroom with gray flannel. They contrasted sharply with potential jurors clad in flannel shirts, blue jeans, and university sweatshirts.
After the jury was impaneled, tobacco companies asked Judge Kenneth Fitzpatrick to dismiss it. They said jurors were biased against them. Fitzpatrick refused.
Over the next three-and-a-half months, jurors heard testimony ranging from the CEOs of Philip Morris, R.J. Reynolds, and Liggett. They also heard from authorities on marketing, economics and smoking, and health. Jurors viewed slivers of human lung and relived old cigarette TV commercials.
TV announcer: The Flintstones has been brought to you by Winston, America's best selling, best tasting, filtered cigarette. Winston tastes good as a good cigarette should!While attorneys were battling inside the courtroom, they also fought in other courtrooms. The tobacco industry appealed 18 of the judge's rulings, including his refusal to remove himself from the case. The industry lost all 18 appeals, including two to the US Supreme Court.
Many of those appeals centered on the tobacco industry trying to keep internal company files out of the case, files which Minnesota attorney general and gubernatorial candidate Skip Humphrey called "smoking howitzers."
Humphrey: This industry is exploiting the vulnerability of young kids, and these are the kinds of skeletons that are in that closet that we want opened up, and we want the public to understand.The state's lead attorney, Mike Ciresi, showed jurors a videotape of Congressional hearings where tobacco executives publicly maintained cigarettes weren't addictive, even though the companies own research showed they were.
Ciresei: They had seven people in 1994 swear under oath like the seven dwarves saying that nicotine wasn't addictive. They don't admit it today. The only one that admits it is Liggett, so if it's so well known, why don't they just come out and say it, "Hey nicotine's addictive! We're telling the world!"Ciresi also showed the jury a videotaped deposition of the late CEO of American Tobacco. Robert Heiman disputed the Surgeon General's landmark 1964 report which said smoking causes disease.
Heinman: We believe our product is not injurious to health.One witness - a former tobacco executive - was noteworthy for what he didn't say. Thomas Osdene invoked the Fifth Amendment against self incrimination more than 100 times in a videotaped deposition. Tobacco lawyers had fought hard to keep that testimony out because they worried how jurors would react to his refusal to answer questions.
Lawyer: As far as you're concerned, is the surgeon general simply wrong in concluding that cigarette smoking causes lung cancer?
Heinman: I would use the term "misguided."
Lawyer: Ok, if he's misguided, then I take that your opinion is he's wrong?
Heinman: I was simply trying to be polite about it.
Lawyer: Ok, but not being polite about it, in your opinion he's wrong?
Heinman: Dead wrong.
One tobacco executive did testify for the State: Bennet Lebow of Liggett, the only company to break ranks with the tobacco industry. Lebow said he could no longer continue the party line.
LeBow: It's absurd to keep saying smoking doesn't cause health problems. Who in this world doesn't believe that? It's absurd to get up and say smoking's not addictive; it's ridiculous.In March the defense began its case. While the state used a road map of industry documents to orchestrate its side, the tobacco industry largely relied on live witnesses to dispute the state's claims. Those witnesses included company executives and scientists, a Minnesota historian, and experts on statistics and anti-trust.
Minnesota historian Hy Berman led off as tobacco's first witness, but his testimony appeared to support both sides of the case. Berman testified Minnesotans have long known about the health risks of smoking, but he also supported evidence that showed the industry misled the public. At the conclusion of his testimony, it was hard to know who Berman testified for. When he stepped down from the witness stand, he gave a thumbs up and a warm handshake to the state's attorney Mike Ciresi.
Berman: I gave the results of my findings to the court, and let the chips fall where they may.The defense suffered a setback in April when it lost a major appeal to the US Supreme Court to keep nearly 40,000 internal documents out of the case. The result: the state gained newfound opportunity to introduce new and potentially damaging internal company files during cross-examination of tobacco witnesses.
Some of those memos suggested tobacco lawyers - not scientists - controlled internal company research on smoking and health. An R.J. Reynolds memo also said the company considered removing research reports from its files to protect itself from lawsuits.
But perhaps the most notable witness for the defense was the creator of R.J. Reynolds controversial Joe Camel campaign. Critics have long held Joe Camel as a symbol of cigarette marketing to children after a medical journal found first graders were as familiar with Joe Camel as Mickey Mouse.
Reynolds marketing executive Lynn Beasley testified her company markets to adult smokers. She said her job is to get them to switch to a Reynolds product, not to induce children to begin smoking.
The company's attorney Bob Weber says Beasley's testimony showed Joe Camel didn't cause children to smoke.
Weber: Studies showed that as underaged people recognized the Camel campaign, as their recognition increased, their dislike of cigarettes increased. So it's a very clear message that the Camel campaign did not change the way underage people thought about cigarettes. Underage people don't like cigarettes; the vast majority don't like cigarettes, and the Joe Camel campaign didn't change that at all.Despite tobacco's numerous appeals, attorneys say they put on a good defense. They point to witnesses who testified the state inflated its damages and others who disputed state claims the industry broke anti-trust laws. Still, the overarching theme from tobacco attorneys was they could not get a fair trial in Minnesota. Philip Morris attorney Peter Bleakley took particular issue with the judge's ruling that prevented the defense from raising the so-called "death credit argument," the argument that smokers cost the system less because they tend to die sooner.
Bleakley: That's one of the most absurd rulings in these cases I've ever seen anywhere, that you will keep evidence away from a jury because it's horrendous. There is absolutely no question whatsoever that cigarette smokers do not cost more in health care than nonsmokers. The net cost is less, but we're not allowed to present that evidence because we would be taking advantage of the fact that our product kills people. We're not talking about taking advantage; we're talking about what the facts are.Jurors throughout three-and-a-half months of testimony were attentive, even through some of the most tedious testimony. Their cohesiveness has been apparent. One day in April, the jury entered the courtroom wearing matching T-shirts that read "Minnesota Tobacco Trial." Several have weathered financial hardship because they had to take unpaid leaves from their jobs. All to sit on a jury and decide a multi-billion dollar lawsuit.