Judge: Tobacco firms didn't do enough to produce witnesses

March 21, 1998
Web posted at: 6:46 p.m. EDT (1846 GMT)

ST. PAUL, Minnesota (CNN) -- A Minnesota judge on Saturday penalized two cigarette manufacturers for failing to produce witnesses in the state's case against the tobacco industry.

British American Tobacco Co. and British American Tobacco Industries did not take "whatever steps were necessary to ensure (the witnesses') appearances for deposition," Ramsey County District Judge Kenneth Fitzpatrick wrote in his order.

As a result, the jury can be instructed that it "may infer" that the testimony would have been unfavorable to the defendants, Fitzpatrick wrote.

Through his order, the judge has "pretty much directed a verdict" against the tobacco companies, said John Ferguson, an assistant attorney general in the state of Washington, whose trial against the industry is scheduled to begin in September. Ferguson called the order "unusual, but legally sound."

Brief history of tobacco Text: Tobacco settlement Tobacco company internal documents

Among others, the state's attorneys had sought to depose Ray Thornton, who worked for British American Tobacco Co. for 31 years, from 1962 through 1993.

In his order, Fitzpatrick called Thornton "the person most knowledgeable about the destruction of...files" belonging to D.G. Felton, BATCO's retired research and development manager.

Three cases of Felton's files related to smoking and health were destroyed in 1985, according to the judge.

The cigarette makers countered that they simply could not persuade some former employees to testify.

"The law does not require you to do the impossible. And it was not possible," said David Bernick, counsel for BATCO and Brown & Williamson Tobacco Corp., both of which are owned by British American Tobacco Industries.

"This is part of this judge's jihad against the assertion of privilege," Bernick said.

Lawyers for the state were not immediately available for comment.

State to 'provisionally' rest case next week

The trial, in which Minnesota and Blue Cross and Blue Shield are suing the tobacco industry for $1.77 billion and unspecified punitive damages, began in January. The state contends the industry targeted children, enhanced nicotine to keep smokers "hooked," and conspired to keep secret the dangers of smoking.

The state is expected to "provisionally" rest its case Monday or Tuesday, which is subject to reopening upon the release of 39,000 internal industry documents.

The industry says the documents should be kept secret, protected by attorney-client privilege.

But two lower courts have ruled that because the documents show evidence of criminal fraud, attorney-client privilege does not apply.

The industry has appealed the lower courts' rulings to the Minnesota Supreme Court. A ruling is expected next week.

Related stories:

• Witness: Tobacco pact imperiled 'safer' cigarette's success - March 20, 1998
• Most smokers wish they'd never started, witness says - March 16, 1998
• Expert says tobacco pitched ads to young smokers - March 9, 1998
• Tobacco industry wins reprieve - March 8, 1998
• Document: Potential smoking habits of 5-year-olds reviewed - March 7, 1998

Related sites:

Note: Pages will open in a new browser window

• The State of Minnesota and Blue Cross/Blue Shield of Minnesota vs. Philip Morris Inc., et al Case File #62-C1-94-008565
• Minnesota State Government On-line
• NOCALL - Tobacco Resources
  • Tobacco Trials - State List
  • Major legal cases and court coverage of tobacco lawsuits around the world

External sites are not endorsed by CNN Interactive.

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