"We have surrendered, and we have surrendered on our own terms." That's not quite the way Minnesota Attorney General Hubert H. Humphrey III put it, of course. He used the word "they," meaning the tobacco companies. But guess who owned those companies at the time the state of Minnesota and its partner, Blue Cross and Blue Shield of Minnesota, sued it. Minnesota and BlueCross and Blue Shield.
In 1993, it seems, the Minnesota State Board of Investment held tobacco-related investments worth more than $195 million. As of 1992, Blue Cross held more than $13 million worth. In 1995, a year after they filed suit, they were still holding combined investments in tobacco interests - Philip Morris Cos., RJR Nabisco Inc., Loews Corp. and BAT Industries PLC - worth more than $140 million. So while the pious plaintiffs were decrying the industry's exploitation of children and its manufacture of nicotine-delivery devices, they were profiting handsomely by both. When Pogo said we have met the enemy, and the enemy is us, he could have been referring to the Minnesota plaintiffs in this case.
This self-suit is just one of many ironies lost in the news last week that Minnesota and Blue Cross had settled their estimated $10 billion lawsuit against the industry for $6.5 billion. Under terms of the settlement, the industry will, among other things, take down its billboard advertising in Minnesota, halt the sale of tobacco-related promotional merchandise, close down the Council of Tobacco Research, fund smoking-cessation programs and pay trial lawyers representing Minnesota and Blue Cross a breathtaking sum of more than $460 million.
Why the settlement from an industry that up until recently had never lost a court battle? Tobacco foes said the industry could not defend its conduct - described as corrupt, pernicious, greedy and otherwise guaranteed to end life as we know it - and feared losing far more.
Up to a point, they are right; the industry could not defend itself. It's not that it had no defense. It's that the zany county judge presiding over the case, Kenneth J. Fitzpatrick, wouldn't allow it to present one.
He wouldn't let defense lawyers argue, for example, that people who smoked already knew it was deadly. Or that health expenses for non-smokers were more costly than expenses for smokers because non- smokers live longer. Or that tobacco company documents were protected by the attorney-client privilege. Judge Fitzpatrick also instructed jurors to conclude that any documents the industry failed to produce were harmful to the companies' case. How do you suppose Americans would feel if the Internal Revenue Service brought charges against someone for tax evasion and, in the ensuing court case, a judge told jurors they should assume any documents a taxpayer could not produce were harmful to his case?
Still, given the success of the industry shakedown by Minnesota and BlueCross, Americans can expect to see more politicians, "consumer advocates," trial lawyers and other tobacco shareholders perpetuating this racket on their behalf. They may want to ask themselves why, if the tobacco industry is so evil, it is necessary to manipulate data, make up victims and strip the industry of ordinary legal defenses to win a case in a Minnesota kangaroo court.
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