Cornered (33 page)

For example, in 1963, the chairman of the BAT group board had ordered B&W to withhold scientific research from the U.S. Surgeon General. Later, BAT's joint attempts with B&W to develop a “safe cigarette” had come to nothing after company lawyers had decided it would be an admission that other types of cigarettes “might be harmful.” Walburn insisted that BAT employed a heavy “hands-on” approach, which was quite enough to satisfy the Minnesota “long-arm” statute, which merely required “minimum contacts.” Such minimum contacts were said to exist wherever a nonresident defendant had “purposefully availed itself of the privilege of conducting activities within the jurisdiction.” Actual physical presence—an office, a phone number—was not required under the law. Walburn argued that BAT sold cigarettes in Minnesota through its wholly owned subsidiary, B&W, knowing that they would cause adverse health effects in millions of smokers and would result in increased health costs. In the end, the only way to resolve the fact dispute was through discovery of BAT's internal files, she insisted.

Judge Fitzpatrick agreed; discovery was needed to resolve the issue. Now, the American companies were not the only target of Ciresi's widely cast discovery net. The second-largest international tobacco company in the world, BAT, was forced to open the special document warehouse in Guildford, south of London, and give Ciresi's team access.

They began their great voyage of discovery with a blanket request for all company records—the U.S. industry's and BAT's—on scientific research, safer cigarettes, nicotine addiction, and tests for tar and nicotine levels. For once, said Professor Daynard of Northeastern University Law School, there was a chance of finally “leveling the playing field with the companies.”

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the judge in the case. From the beginning, the Minnesota lawyers realized there would be no snap decisions, no judicial shortcuts to an early trial in the courtroom of Judge Kenneth Fitzpatrick.

A lifelong civil servant, he started his legal career as an assistant for then attorney general Walter Mondale, who later became a U.S. senator and then vice president under Jimmy Carter. When the Minnesota suit was filed, Fitzpatrick, who was nearing his sixtieth birthday, had been on the bench for twenty-two years. He was the state's chief judge.

In contrast to the spiraling demands of the lawyers on both sides, his courtroom style was conservative and cautious. As each discovery request was met with the obstructive maneuvers for which the industry had become well known, Fitzpatrick's patience was sorely tried. Five of Fitzpatrick's rulings were appealed, three of them on matters of discovery, and each time the arguments were more contentious than the last. All five appeals were upheld, but the pressure on the judge grew.

Fitzpatrick's answer was to allow the lawyers considerable latitude in making their arguments, chiding them only when absolutely necessary. “The court is not impressed with any chippy comments,” he told the lawyers when a session threatened to get out of hand. And another time, rather than reprimanding the two contestants for their increasing hostility, he said, “I would hope … that all counsel will perform with dignity and respect for each other.” He insisted that the tone of the courtroom remain serious at all times. “I assure you, throughout the entire proceeding I will not use or make any reference to the smoking gun,” he said, adding, “I find it a very unappealing pun.”

Minnesota was lucky in one key respect, however. Fitzpatrick was a computer buff and made notes on his laptop at the bench. Convinced that computers are an integral part of complex modern litigation, he came up with two key solutions to handling the mass of paper being produced. From the start, he ruled that all motions, briefs, and submissions should be filed electronically. Second, he ordered the creation of a single document depository in Minneapolis for all U.S. company documents. The industry had wanted to set up nine different document centers in nine different parts of the country to represent the nine tobacco company defendants—a solution that would have made it far more arduous and expensive for Ciresi's team.

In one of his early rulings, Fitzpatrick gave the nation's antitobacco forces what could have been a powerful weapon. He allowed other lawyers in the Third Wave access to the documents found by Minnesota—providing that the judges in their own lawsuits issued so-called protective orders similar to the one he had imposed on the Minnesota lawyers: Fitzpatrick had ruled that any document placed in the common depository was not a public document; it could not be released to the media until used as evidence in trial. The judge's order meant that the Castano lawyers or Motley's group or the lawyers from the other states could send their own teams to help Minnesota with the grueling task of sorting out the important documents from the mass of irrelevant paper.

But for many months none of them came and, in the end, out of the thirty-nine states that would eventually file suit, only Connecticut and Washington lent a hand. “The rest just sat back and waited and then copied the 1 or 2 percent that we had copied,” said Roberta Walburn bitterly. Motley's view was that Fitzpatrick's protective order was too restrictive. In his guerrilla operation, the only good document was one you could give to the media and use to score a propaganda point. The other, perhaps overriding reason, was that none of the Southern lawyers wanted to be associated, in any way, with Ciresi's operation.

As it turned out, the method benefited the tobacco companies—as they had, of course, known it would. They provided the list of documents selected by Ciresi's team from the two depositories, and the other lawyers selected what they wanted from the Minnesota list. “The tobacco companies played people's laziness against themselves,” was how Walburn put it. “In litigation like this it's beneficial to the plaintiffs to have different lawyers review the documents.”

At the same time, the industry took every opportunity to make the discovery process as burdensome as possible for the plaintiffs. Documents were copied and sent out in unnumbered boxes, not in chronological order, and with the list of the documents that Ciresi's team had selected in every possible computer format, with each tobacco company using a different word processing system. In some cases, chunks of data were missing; the plaintiffs never knew whether this was intentional, or if there were viruses on the disks. In Minnesota, Ciresi had his computer staff working seven days a week for two years to keep up with unraveling the data so that it made sense.

Although Fitzpatrick's order meant that none of the documents could be made public before the Minnesota trial, there was one important exception. If a document was used as an exhibit in arguing a motion in court, it was automatically public unless sealed by the judge. In this way, Ciresi's team would make public several key documents, playing their own role in the barrage of propaganda against the industry.

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1996, the Minnesota lawyers made headlines with one such document, an R. J. Reynolds research report from 1973. The memo was stamped “SECRET” and written by Claude Teague, assistant research chief at RJR. In those days, Reynolds had been wondering why Philip Morris's Marlboro cigarettes had become so successful, eclipsing Reynolds' most popular brand, Winston. Reynolds scientists had taken apart a Marlboro cigarette to see what it was made of. They found that while Marlboros delivered about the same amount of nicotine in the smoke as Winstons, more of the Marlboro's nicotine was “free,” or volatile, which meant it was more easily assimilated into the bloodstream of the smoker. The reason, the RJR scientists found, was that Marlboro cigarette smoke was more alkaline than Winston's.

For some years (as Dr. Kessler at the FDA had discovered), the tobacco companies had known that as the pH, or acid-alkali value, of tobacco smoke increases and becomes more alkaline, an increasing proportion of the nicotine in the smoke occurs in the “free” or volatile form and is absorbed more quickly by the smoker. If the smoke is acid, the nicotine combines with acidic substances, becomes nonvolatile, and is absorbed relatively slowly by the smoker. Teague concluded in his memo that Marlboros could be “expected to show more instantaneous nicotine ‘kick'” than Winstons.

The memo was important evidence in addiction cases, such as Castano, because it indicated manipulation of nicotine levels. Professor Daynard called the memo a “smoking gun,” using Judge Fitzpatrick's least favorite pun. R. J. Reynolds dismissed it as preliminary research that proved to be incorrect, but it still left Philip Morris with some explaining to do.

Ciresi's team also focused on the possible destruction of internal files. As Roberta Walburn scanned the industry's lists of so-called privileged documents, she became increasingly aware that there was, as she would say, “point-blank evidence of document destruction.” In a motion to Fitzpatrick, she complained, “In a typical lawsuit even one instance of intentional document destruction is cause for alarm. In the present case, however, initial discovery has revealed an extraordinary array of evidence of destruction. Much of [it] is remarkably explicit.” Among the evidence, Walburn cited Philip Morris's use of third parties to maintain their documents “apparently to preclude discovery.”

Walburn even argued that some of the companies seemed to have a “pervasive philosophy” of suppressing or destroying potentially damaging documents. As an example, she said, Philip Morris had apparently taken steps to destroy documents at its biological research lab in Cologne, Germany. This facility, known as INBIFO, was once a private laboratory but had been purchased by Philip Morris in the early 1970s. Over the years, Philip Morris had used INBIFO for extensive—and sensitive—scientific research. In fact, Philip Morris had regarded the German research center as a place where, as one internal company memo put it, “we might do some of the things we are reluctant to do in this country.”

During her review of papers produced by Philip Morris, Walburn had discovered a handwritten note, with no author or date, in the files of Thomas Osdene, the company's director of research from 1969 to 1984, that discussed both the destruction and the unusual routing of INBIFO documents. It read:

Ship all documents to Cologne …

Keep in Cologne.

Okay to phone & telex (these will be destroyed).

We will monitor in person every 2–3 months.

If important letters or documents have to be sent, please send to home—I will act on them & destroy.

Supporting evidence of document destruction appeared in a 1977 memo, also quoted by Walburn. In it, Robert Seligman, Philip Morris's then vice president for research and development, wrote, “We have gone to great pains to eliminate any written contact with INBIFO, and I would like to maintain this structure.” He suggested sending research samples to a Philip Morris subsidiary in Switzerland “for transshipment to INBIFO,” or creating a “dummy” mailing address from which the samples could be forwarded to INBIFO. He added that written analytical data would still have to be sent to the Swiss subsidiary “if we are to avoid direct contact with INBIFO and Philip Morris USA.”

Still another Philip Morris memo produced in court by the Minnesota lawyers suggested efforts to suppress or destroy documents. It was written by William Dunn, a Duke-trained psychologist who joined the research staff of Philip Morris in 1961. In the memo he discussed what to do if a proposed scientific study into the addictive properties of nicotine produced results the company did not like:

“I have given Carolyn approval to proceed with this study. If she is able to demonstrate, as she anticipates, no withdrawal effects of nicotine, we will want to pursue this even with some vigor. If, however, the results with nicotine are similar to those gotten with morphine and caffeine, we will want to bury it. Accordingly, there are only two copies of this memo, the one attached and the original which I have.”

Philip Morris vigorously denied the state's allegations, saying it would respond “in full, in detail, and in court.” But Walburn would not be put off. She insisted that the companies list all instances of document destruction and identify each one by a search of all available indices, databases, and lists, whether maintained by the company, its in-house legal department, or outside counsel. The companies complained again that the request was “overly broad” and “burdensome,” and that the documents concerned were privileged or the result of work-product. Nevertheless, Fitzpatrick ordered them to produce the lists. Whatever Walburn found was subject to Fitzpatrick's protection order, and would not be released until the trial.

To complete this phase of their document hunt, Minnesota needed to search the files of the international affiliates of Philip Morris. Walburn claimed that Philip Morris had failed to produce document lists belonging to Philip Morris International (PMI), the foreign sales affiliate of Philip Morris. The company lawyers protested. A search of PMI files would impose “extraordinary and unwarranted burdens,” they said. Indeed, they claimed that PMI had been a separate corporate entity since 1987, with different directors and officers, and that Philip Morris USA had no control over the documents in PMI's files.

Philip Morris had previously told the state, Walburn countered, that, despite PMI's spin-off, no documents had been transferred to any corporate affiliate without Philip Morris retaining the original, or a copy. So she wanted the copies of PMI files now in Philip Morris's possession. She argued that the “separate entity” status of PMI was a recently created claim to avoid discovery. In response, the company called this “nonsensical,” leaving Fitzpatrick to adjudicate.

For the first time, Fitzpatrick began to show his impatience. In March 1997, six months after the state had first raised the issue, Fitzpatrick issued an unusually stern rebuke to the company. Essentially agreeing with Minnesota that it had engaged “in an egregious attempt to hide information,” he ordered the search of PMI files to proceed. The company's “attempts at hiding documents in the morass of interlocking related organizations shall not be tolerated by this court,” Fitzpatrick concluded. “Nor will the court countenance Philip Morris's self-selected and voluntarily provided set of documents from selected sources. Philip Morris must respond to discovery requests properly.”