Cornered

by Peter Pringle

  * * *

  IN THE TRANSCRIPT of the Mississippi deposition, Wigand actually had two things to say that were crucial to the tobacco lawsuits. One was that Sandefur was always talking about nicotine addiction. That was the basis of the Castano lawsuit. The second was about a safe cigarette. Wigand said Sandefur had told him that “there can be no research on a safer cigarette.”

  In the end, the value of Wigand’s testimony depended to a large extent on Sandefur, but he would never reach the witness stand, or even be deposed. He died on July 15, 1996, of aplastic anemia, a rare blood disease. He was fifty-six. Coincidentally, another key company witness on the company’s knowledge of nicotine addiction, Addison Yeaman, who had authored the famous memo—“We are then in the business of selling nicotine, an addictive drug”—also died that summer in Louisville. He was eighty-eight, and his personal story was sealed. He had refused to talk to reporters. Even so, Wigand was still the star witness for the plaintiffs.

  10

  VOYAGE OF DISCOVERY

  Assuming it would take only five minutes to retrieve a document … it would take 750,000 minutes, or 12,500 hours, to review all the 150,000 privileged documents. This is roughly 6.25 years of a lawyer’s working career.

  —Judge Kenneth Fitzpatrick, Minnesota Medicaid case, 1997

  BY THE END of 1996, lawyers preparing Minnesota’s Medicaid suit had reviewed a stunning thirty million pages from tobacco company internal files, more than that examined by any other group of lawyers challenging the industry. Asked how it was done, one of the leading Minnesota lawyers, Roberta Walburn, of the Minneapolis firm of Robins, Kaplan, Miller & Ciresi, replied wearily, “One at a time.”

  The tobacco companies were waging a war of attrition, as they had always done; adopting the same strategy that had been so memorably summed up after earlier court battles by an R. J. Reynolds legal counsel, Michael Jordan. “[The] aggressive posture we have regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers, particularly sole practitioners. The way we won the cases, to paraphrase General Patton, is not by spending all of Reynold’s money, but by making the son-of-a-bitch spend all of his.”

  In response to Minnesota’s requests for internal company documents on smoking and health, the companies had sent truckloads of reports on such mind-numbing topics as the habits of the tobacco plant beetle, wastewater treatment techniques, leaf storage, and soil erosion. Almost none of it was of the remotest value in the Minnesota lawsuit brought by the state’s attorney general, Hubert Humphrey III.

  The industry’s strategy was to make the process of pretrial document discovery—the lifeblood of liability lawsuits—as arduous, limited, slow, and expensive as possible. This was in direct contravention of the federal rules of civil procedure, which are designed to ensure the “just, speedy and inexpensive determination” of a civil claim and “to prevent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent.” Lawyers had protested. At one point in the Texas Medicaid case, the lead counsel for the state, John O’Quinn, complained to the judge in the court at Texarkana about what he considered to be the industry’s rotten performance on discovery. O’Quinn noted that the state had come before the court naked, as the discovery process intended, but that the industry’s counsel hadn’t even got his socks off. In Mississippi, the state’s legal team, frustrated by a particular industry motion to depose a former assistant to one of the state’s proposed experts, had complained. “The defendants’ strategy in this case, as well as other tobacco litigation, is to conduct extensive discovery on issues irrelevant to the subject litigation. These discovery tactics are a Trojan horse, used by the industry under the guise of being a ‘legitimate’ need for documents and depositions regardless of relevancy or admissibility of the requested information.” The judge agreed and threw out the industry’s request, saying it was not well taken.

  Over the years of tobacco litigation, judges had also expressed shock at the abuse of the principles underlying discovery, but the companies ignored the complaints and continued to bluster and bully their way from one courtroom victory to another.

  In the first case to be settled during the Third Wave—the $10 billion libel action against ABC News—Philip Morris, in reply to ABC’s discovery requests, had sent boxes of documents on red paper that could not be copied. When ABC complained, the judge made the company switch to white paper. In the Minnesota Medicaid case, lawyers at the Minneapolis law firm of Robins, Kaplan, which represented the state, had looked for a shortcut through the blizzard of internal documents the industry was producing. The lawyers assumed that wealthy corporations with an extensive history of litigation, such as the tobacco companies, would have a computerized index of all documents that were relevant to lawsuits. The Merrell Williams papers had shown that Brown & Williamson lawyers had developed special procedures to shield sensitive documents from the discovery process by routing them through the company’s legal department, thus creating a set of supposedly privileged documents.

  The Williams papers also suggested that the companies may have sent sensitive documents abroad to foreign affiliates, or even had them destroyed to prevent them from being unearthed during discovery. In the infamous 1985 “deadwood” memo, J. Kendrick Wells, B&W’s corporate counsel, had said sensitive documents should be thought of as “deadwood” and hinted that they might have been shipped to the parent company, BAT Industries, in England. The question was whether this suggestion of Wells’s was ever implemented, and whether other companies had made similar provisions.

  Believing that an index of these documents must exist, the Minnesota lawyers presented a motion to the court asking for it. The companies denied the existence of any such lists. “They kept saying they had no lists and we kept saying we know you do, and the letters and phone calls went back and forth,” said Roberta Walburn. “They complained we were sounding like a broken record. But we knew they had to have them.”

  The determination of the Minnesota lawyers paid off. After six months of wrangling, the companies admitted there were indeed such lists. They could not be handed over, however, because they were all privileged; they had been produced by lawyers in anticipation of litigation.

  In response, Robins, Kaplan asked the court to review the list—to see if the rules allowing such a privilege had been properly applied. Impossible task, said the companies. The indices were too varied and it would be difficult to compile them. So the judge asked for random samples. He quickly concluded that the claim of privilege did not apply. The indices merely gave the date, subject, author, and recipients of the documents. They contained neither attorney-client information nor attorney opinions—the two categories for which the companies could have rightfully claimed privilege. The judge ruled that the state must be provided with the lists. In fact, he added, there was no other sensible way to sift through tens of millions of documents.

  The companies appealed the ruling to the Minnesota Supreme Court, which promptly sided with the judge. So the companies appealed to the U.S. Supreme Court, which, declining to hear the matter, left the lower courts’ ruling intact.

  Sixteen months after the state’s first request, in February 1995, following eight orders from the judge and two appeals, the lists finally arrived. The Minneapolis lawyers were now in possession of a unique research tool that would put their discovery operation on a different footing from that of the other lawyers suing the industry. Not only could they skip over reports on beetle life cycles and soil science, but they could request the industry’s most sensitive documents and, as Walburn said, read them one at a time. In the end, the Minnesota lawyers, using their special lists, needed to copy less than 2 percent of the material supplied by the industry.

  In forcing the industry to produce the lists, Robins, Kaplan lawyers had won a key strategic battle in what became known as the “document wars.” Their victory was part of the most
widespread discovery hunt in the history of American civil litigation, taking their search beyond United States borders to tobacco companies and their affiliates in Britain and Europe. More than six million pages of internal files would be provided by the biggest U.S. company, Philip Morris. And in London, BAT would supply more than seven million pages. In Minnesota alone, the two sides would spend more than $100 million on the discovery phase of the lawsuit.

  The document wars opened on several fronts—besides Minnesota, they were waged in Mississippi, Florida, Texas, and New Orleans. In Charleston, South Carolina, Ron Motley launched his own guerrilla operation. Besides the Castano case in New Orleans, Motley had attached himself as co-counsel to several other state lawsuits, which gave him the opportunity to file discovery requests in several different cases. He flew his team—his junkyard dogs, as he called them—around the country in one of the firm’s two Citation jets. Each of the lawyers on the team was assigned a company. Andy Berly tracked down documents from Brown & Williamson and its Britsh parent, BAT. Susan Nial burrowed into the files of R. J. Reynolds. Ann Ritter pursued Philip Morris. They delved into court records of past tobacco cases, prised open sealed records, searched libraries, archives, and universities, building an arsenal of documents for what Motley called “the Conspiracy to End Conspiracy”; his personal script on the evils of the tobacco industry that he dearly hoped he would one day have a chance to use in court.

  Motley would complain bitterly about the industry’s “illicit efforts to cloak its most damning documents under unfounded claims of attorney-client privilege.” One of the states he represented, Florida, filed scores of motions to compel the companies to produce documents they were reluctant to give up. But neither Motley’s intensive discovery efforts, nor those of the other plaintiffs, would compare in size and scope to the encyclopedic operation in Minnesota, where the most thorough, dogged inquiry into the industry’s past was launched from the twenty-seventh floor of the Minneapolis skyscraper offices of the law firm of Robins, Kaplan.

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  ONE OF the biggest law firms in the Midwest, Robins, Kaplan has 221 attorneys, maintains offices in every big American city, and has a reputation for taking on, and winning, complex civil litigation. The driving force in the Minneapolis headquarters was one of America’s leading liability lawyers, Mike Ciresi, a fifty-one-year-old veteran of the plaintiffs’ bar. A loner, Ciresi shunned the kind of group operation set up by Wendell Gauthier in New Orleans and disdained the theatrical performances favored by Ron Motley. Ciresi ran a no-frills operation and believed that this put him a cut above his flashier colleagues. In his last encounter with them—during the Bhopal tragedy—he had out maneuvered Belli, Gauthier, Chesley, and Coale to become the Indian government’s legal representative in the United States—all the result of a chance introduction by a colleague to the Indian ambassador in Washington. The Bhopal incident had left Ciresi with some permanent enemies.

  When Robins, Kaplan was appointed as the sole law firm representing the state of Minnesota in its Medicaid case, Ciresi’s colleagues sniped at him from afar. “That little Napoleon,” said Coale, whose dislike of Ciresi often seemed irrational. “I don’t know what the hell they’re doing up there,” he would say when asked for a report on the Minnesota case. “Anyone who lives in Minnesota has got to be slightly crazy.” Ciresi and his team ignored the taunts and got on with their work.

  Ciresi was raised in St. Paul. His father, who ran a grocery store and a liquor store, brought up the boy and his sister after their mother died of breast cancer when Ciresi was twelve. His father was tough and driven, strong on family values, self-responsibility, and accountability. Ciresi went to the local University of St. Thomas for his bachelor’s degree and then graduated from the University of Minnesota Law School in 1971. He worked as a law clerk at Robins, Kaplan to help pay his way through college.

  As a partner at Robins, Kaplan, Ciresi drove his lawyers hard, expecting the relentless pursuit of opponents. “It’s not a country club,” Ciresi once said about his law firm, pointing to the difference between his approach to practicing law and that of others in the profession. Some of his colleagues criticize what they call Ciresi’s “scorched-earth, take-no-prisoners” style, but he has proven to be extraordinarily effective in complex patent and liability cases. He directed the firm’s multimillion dollar victories against Minolta and other camera makers, for patent infringement ($497 million); against the A. H. Robins Co., maker of the Dalkon Shield intrauterine device ($38 million); and against G. D. Searle & Co, makers of the Copper-7 IUD ($8.75 million).

  In the Third Wave of tobacco suits, Ciresi created a team of a dozen experienced attorneys who quickly developed a reputation as the armored division of the antitobacco forces: ponderous, but with the heaviest firepower. Ciresi’s team, who would work long hours, rarely taking a weekend off, included Gary Wilson, a partner in the firm’s mass tort department, and Roberta Walburn, a former reporter for the Minneapolis Star Tribune who, as a lawyer, had earned her partnership working with Ciresi on the Bhopal and Dalkon Shield cases. Walburn did most of the courtroom work, preparing motions and pounding the companies with questions about internal documents. The group also included Susan Richard Nelson, who had handled automotive and pharmaceutical product liability, and Thomas Hamlin, an expert in patent infringement.

  While Gauthier was waging his propaganda war, and Motley was flying around in his private plane, picking up clients and holding high-profile depositions, and Dick Scruggs and Mike Moore were maneuvering Mississippi into being the first state to go to trial, the Minneapolis team was moving slowly and methodically toward its public confrontation with the industry. Motley and Coale mocked Ciresi’s strategy of reviewing millions of documents, saying it was taking too much time and wasn’t necessary to win the case. But that was how Robins, Kaplan worked. “Our view was not to be the first to go to trial, but to do it right,” said Walburn.

  Over time, the Minneapolis lawyers would become the industry’s most implacable foes. Ciresi’s team had always believed that the Merrell Williams documents were, as Walburn said, “just the tip of the iceberg,” and they set out to prove it.

  From their northern fastness, Ciresi’s team kept up an unrelenting barrage of demands for documents, filing hundreds of separate motions to make the companies comply with a discovery request. They were the only ones to challenge the industry on the destruction or concealment of sensitive scientific reports from company files, and they launched the most comprehensive attack on the improper use by the industry of the attorney-privilege rules. Minnesota would force a judicial review of 250,000 documents—or more than a million pages—for which the industry had claimed privilege. They would uncover evidence that led them to charge Philip Morris with routinely destroying potentially damaging documents about smoking and health, a charge the company vigorously denied.

  The Minnesota lawyers were also the first to include in their lawsuit the British tobacco giant, BAT Industries. BAT believed it had successfully “ring-fenced” its corporate structure so as to avoid the long arm of United States liability, but the Minnesota lawyers roped it anyway, forcing the company to set up a special document warehouse in England and fill it with seven million pages of the company’s files. In a moment of reflection on the Minnesota offensive, Walker Merryman, vice president of the industry’s Washington lobbying arm, the Tobacco Institute, would observe, “Minnesota is a state in which we always expect the worst.”

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  THE MINNESOTA CASE was filed in August 1994 by attorney general Hubert Horatio “Skip” Humphrey III, the son of the former vice president. This was the second Medicaid suit to be filed—Mississippi had filed that May.

  It was appropriate that wholesome, health-conscious Minnesota should be among the first to sue. Since the 1970s, it had been one of the country’s leading antitobacco states, defeating persistent tobacco industry lobbying in its legislature to pass one of the nation’s first antismoking bills in 1975. At
the same time, the state had used an increased cigarette tax to fund medical insurance for the uninsured.

  Ciresi and Walburn had first discussed suing in 1989 during the Rose Cipollone case in New Jersey, but no formal meetings were held with Humphrey’s staff until early 1994 when, as in Mississippi, David Kessler’s letter about nicotine manipulation, the ABC News Day One program, and the release of the Merrell Williams papers accelerated the process. Humphrey gave Ciresi an exclusive contract, making it the only one of the 39 states that would eventually sue to be represented by a single law firm. If Minnesota won, the state would ask the court to require the tobacco companies to pay all attorney fees. These would be capped at 25 percent of the damages, lower than the standard 33 percent retainer normally asked by law firms under contingency-fee arrangements, but enough to give Robins, Kaplan the promise of the biggest cut of the tobacco riches from a single case in the Third Wave.

  In Skip Humphrey, who had just turned fifty, Ciresi and Walburn found a willing participant. Humphrey’s father, who died in 1978, had smoked four packs of unfiltered Lucky Strikes a day through the 1950s and the young Skip had always hated the smell of cigarettes. He had inherited his father’s liberal bent, particularly in matters of antitrust, health care, and consumer protection. He had an instinctive dislike of Big Tobacco, its political power and its riches, and he would become one of its harshest critics. He would use his political inheritance, his links to the White House forged when he ran Clinton’s Minnesota campaign, plus his bid to be governor, to turn the state’s lawsuit into the one most respected by the industry.

  One reason for Big Tobacco’s concern was Ciresi’s terrier reputation for never letting go of a case, however complicated and drawn out it became. Another reason was Humphrey’s use of Minnesota’s tough consumer protection and antitrust laws. The Minnesota suit was never part of the bandwagon driven by Scruggs, Moore, and Motley. Like Mississippi, Minnesota was seeking recovery of Medicaid expenses, but in addition to demanding that the industry pay for the medical bills, Minnesota was charging it with consumer fraud in promoting and selling a product known to be harmful. The state alleged that the industry had engaged in a “decades-long combination of conspiracy and of willful and intentional wrongdoing.”