Minnesota Draws a Line In Snow on Big Tobacco

Jury selection to start Tuesday for the toughest lawsuit yet against the tobacco industry.

The tobacco industry has had its back to the wall for some time. But now it's facing a firing squad.

Starting on Tuesday, in the most widely watched tobacco case yet, Minnesota Attorney General Hubert Humphrey III will start questioning potential jurors in a case that some say is a matter of life and death for the tobacco industry.

Unlike three earlier lawsuits brought by Mississippi, Florida, and Texas, this one is not likely to be settled before the bailiff bangs the gavel in state Judge Kenneth Fitzpatrick's St. Paul District Court. This is because Mr. Humphrey, son of the late senator, is demanding that the tobacco companies disclose 250,000 documents that he believes will cast the industry as villains.

"This litigation is not about money; it's about whether the industry will survive," says Calvert Crary, a litigation analyst at Auerbach, Pollack & Richardson, a Stamford, Conn., securities firm.

Punitive damages

Humphrey, whose father died from smoking-related causes, wants more than what other states have won in their settlements. They got Medicaid reimbursement fees, agreements to stop billboard advertising, or a pool of money for counter-advertising, but Humphrey wants punitive damages in the billions of dollars.

Moreover, he charges the industry with consumer fraud and antitrust violations. Humphrey alleges that the defendants, "misrepresented and concealed damaging evidence they knew about the health hazards of smoking," manipulated nicotine levels, and "illegally" targeted teens in their advertising campaigns.

"Humphrey is treating this as a law-enforcement case: The industry did something very wrong and they should have to pay," says Richard Daynard, head of the Tobacco Liability Project at Northeastern University in Boston.

The industry, for its part, denies any wrongdoing and is vigorously defending itself.

The litigation will be watched closely by the attorneys general of 37 other states where lawsuits are still pending against the tobacco firms. How Minnesota fares may help the other states decide whether to go to trial or settle out of court.

"If it goes to trial and Humphrey wins, I predict there will be some powerful copycat-lawsuits taking advantage of the Minnesota lawyers' expertise, track record, and personnel all around the country," says Cliff Douglas of Ann Arbor-based Tobacco Control Law and Policy Consulting, an antitobacco organization.

Congress will also be watching the suit. Disclosure of the documents might make it impossible for lawmakers to approve the national tobacco settlement signed by most of the other state attorneys general last year. The White House will likewise be watching to see how the case influences public opinion.

Amassing evidence

Minnesota's Michael Ciresi, considered one of the best plaintiff's lawyers in the nation, has opposed any efforts to settle the case. "He has taken a scorched-earth approach," says Mr. Daynard.

For more than three years, Ciresi has been digging through tobacco documents. So far, he has amassed 33 million pages of tobacco-company documents, stored in depositories in England and Minnesota.

But Humphrey and Ciresi are the most interested in 250,000 documents that have not been disclosed. The tobacco industry says the documents are protected by lawyer-client privilege.

Last month, Judge Fitzpatrick fined Brown & Williamson Tobacco Corp. $100,000 for failing to turn over research papers and memos. He promised a fine of $100,000 a day if the papers were not forthcoming. He also warned the company he might instruct the jury that claims of fraud had been established if it did not comply.

On Friday, Fitzpatrick gave the state 1,114 additional documents that B&W had maintained were privileged. He has yet to decide on further fines, and the company has not turned over the original documents.

"We're trying to pull out all the stops to get all the information," says Mark Smith, a B&W spokesman.

The tobacco industry has assembled an army of lawyers from 30 law firms to defend it. The lawyers have filed dozens of motions, including one seeking to ban any reference to "The Runaway Jury," a novel about a tobacco-liability lawsuit.

"This popular novel ... depicts characters and conduct crafted purely for entertainment purposes," they wrote. Humphrey, however, will be trying to prove that truth is stranger than fiction.

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