The United States’ major cigarette companies are waging a ferocious rear-guard action in courts around the country to keep yet another wave of potentially damning internal documents from coming to light while Congress and the White House are considering the proposed $368.5 billion tobacco settlement.
Judges in three states have called for the release of industry documents that they say show evidence of crime or fraud by tobacco companies and their use of attorneys in a 40-year effort to suppress information about the hazards of smoking.
If the industry fails in what has become an all-out effort to reverse these and similar rulings, the disclosure of documents described by one top prosecutor as “smoking howitzers” could damage the industry’s prospects in tobacco litigation in all 50 states and lead to stiffer terms against the industry in the pending nationwide settlement.
“If truly outrageous documents come out, it will make the price of the settlement higher - in dollars and in other ways,” said Professor Richard Daynard, director of the Tobacco Products Liability Project at Northeastern University in Boston.
Daynard predicted that the recent rulings in Florida, Kansas, Minnesota, Mississippi and New York would pave the way for significant revelations about the role played by some company lawyers in the industry’s decades-long legal battles.
That issue is a matter of concern to federal grand juries in Washington and New York that are investigating possible criminal charges against cigarette companies. Helmut Wakeham, the former research director of Philip Morris, said in a brief interview that he was questioned extensively about the relationship of industry lawyers to scientists when he testified before the grand jury last year.
Several judges who have reviewed some of the internal documents in chambers have said they show evidence of serious misdeeds. Four of the five decisions involve what have come to be known as “the Liggett documents” - material that was turned over to judges in 20 states after the cigarette maker Liggett Group reached a settlement with those states in March.
The cases all involve allegations that the industry in 1954 hatched a conspiracy to deceive the public about the hazards of smoking, and as a key element of this effort created a nonprofit research arm - the Council for Tobacco Research - that would serve as a “front” group.
A 160-page log of the Liggett documents, obtained by the Los Angeles Times, shows that it includes letters, memos and notes made by Liggett attorneys during meetings of the Committee of Counsel, a lawyers’ group that played a key role in formulating legal strategy for the industry.
The industry is appealing every recent ruling against it, virtually all on grounds that judges have incorrectly interpreted prior cases on protections accorded by the attorney-client privilege, or related doctrines that normally confer confidentiality on materials revealing an attorney’s thought process or documents dealing with strategy among joint defendants.
“There have been indications in tobacco cases” that those well-rooted privileges are being eroded, and that has not occurred in other types of litigation, said Daniel W. Donahue, R.J. Reynolds’ senior vice president and deputy general counsel. “It is a matter that ought to be of significant concern to the legal community as a whole because we have this erosion occurring in the context of litigation that has a lot of political and social overtones.”
But plaintiffs’ lawyers who have engaged in protracted legal battles to get the documents unearthed see it differently.
Usually, said Roberta Walburn, a Minnesota special counsel, the plaintiffs learn of the existence of the documents from sketchy “privilege logs.” The logs - lists of material that the companies want to keep confidential - are generally produced in response to a court order during the pretrial discovery process. Such logs normally provide a barebones description of the subject of the document, as well as its date, author and recipient.
Kenneth B. McClain, an Independence, Mo., attorney who got the favorable ruling in New York after an 18-month battle, said the documents in his case “are at the heart of the whole issue as to whether the Council for Tobacco Research was set up to be a ‘front organization”’ to protect the industry’s interests rather than do independent scientific research.
“These documents should have been produced a long time ago,” McClain said.
Judges in several other states, including California, Connecticut, Illinois and Texas, will be asked to rule on the Liggett documents in coming months.
Though certain sensational documents showing the tobacco industry’s awareness of the hazards of smoking have already come to light, some plaintiffs’ lawyers believe that they are nowhere near the bottom of the iceberg.
For example, Minnesota already has obtained 33 million pages of industry documents in its case, but the vast majority have not become public because of judicial protective orders.
Minnesota Attorney General Hubert H. Humphrey III, a vocal critic of the pending tobacco settlement, says some of these documents are “smoking howitzers” and has urged members of Congress and the White House not to make a final decision on the settlement without reviewing at least some of them. Humphrey has urged two Senate committees to subpoena the key Minnesota documents .
Mississippi Attorney General Michael Moore has told a score of senators that they will not find anything more disturbing in still-secret documents than they already know.
To buttress this point, a group of 65 plaintiffs’ lawyers called the Castano group - who also favor quick approval of the settlement - have assembled a thick dossier of key internal industry documents for members of Congress meant to illustrate that enough negative evidence about the industry is already available.
But they contain such previously undisclosed items as a 1956 memo by Alan Rodgman, an R.J. Reynolds chemist, which indicates recognition that smoking causes cancer - something the companies continue to deny in court.
“We keep being surprised as we go along … so we keep digging,” said Philadelphia attorney Stephen A. Sheller, one of the plaintiffs’ lawyers, who deposed Rodgman recently.