Tobacco Firm Withheld Data, Judge Says

Philip Morris Inc. engaged in “an egregious attempt to hide” relevant information sought by the state of Minnesota in its massive lawsuit against the tobacco industry, a Minnesota state court judge said Tuesday.

Judge Kenneth B. Fitzpatrick in St. Paul issued the stern rebuke to the nation’s largest cigarette producer in a decision that ordered Philip Morris to produce a number of documents and document indexes that Minnesota’s lawyers have been seeking for months.

Thus far, about 28 million pages of documents have been produced by the defendants in the case. But late last year, Fitzpatrick noted, Minnesota’s attorneys discovered references to three document indexes that Philip Morris had failed to produce “despite more than eight orders of this Court describing, clarifying, and reiterating the process established to expedite discovery and review of millions of pages of documents by requiring production of existing indices.”

The judge ordered Philip Morris to produce within 10 days all indexes relating to any documents in “the possession, custody or control” of Philip Morris International, including any indexes of a controversial German laboratory called Inbifo.

Fitzpatrick’s decision is important because Minnesota has been trying to get more information on research that Philip Morris conducted abroad. Earlier in the litigation, Minnesota attorneys released in court papers internal Philip Morris documents where company executives advocated shifting certain research abroad to keep it out of the hands of U.S. courts and also suggested that certain documents be destroyed.

For example, last September, a Philip Morris memo was made public that refers to Inbifo as a “locale where we might do some of the things which we are reluctant to do in this country.” That statement was part of a memo written in April 1970 by Helmut Wakeham, the company’s vice president of research and development, urging that Philip Morris buy the facility.

Inbifo, an abbreviation for the Institute for Biological Research, was purchased by Philip Morris’ Swiss subsidiary, Fabrique Tabac Reunies (FTR). Philip Morris has conducted research on nicotine addiction there, according to a letter company lawyers sent to a judge in another case in January 1996. And last March, Ian Uydess, a former Philip Morris scientist, told the Food and Drug Administration that Philip Morris had used Inbifo to conduct secret research abroad in hopes of keeping it out of the hands of anti-smoking forces in the U.S.

Minnesota Atty. Gen. Hubert H. Humphrey III issued a formal statement: “A corporation with nothing to hide would have no problem turning over these documents to the court. If Philip Morris International has not been used as a secret hiding place, domestic tobacco executives could easily prove it by coming clean. It’s disturbing that we even have to fight for such documents, but we are pleased that we will finally get them. Over the last year, we’ve had to fight motion by motion and page by page to squeeze information from the tobacco industry.”

Executives of Philip Morris could not be reached for comment.

In his ruling Tuesday, Fitzpatrick chastised Philip Morris for failing to search all the files of Philip International and other subsidiaries to look for the relevant documents. Attorneys for Philip Morris Inc., the parent company, had contended that they did not have to search the files of Philip Morris International because it was a separate entity that is not a party to the suit.

Fitzpatrick spurned that argument as “disingenuous as best.”

He noted that Philip Morris had failed to disclose that it had transferred certain documents from the parent company to Philip Morris International when that division was made into a separate corporation at the end of 1987 and had failed to disclose the act of incorporating that entity in prior sworn answers to written interrogatories from Minnesota’s lawyers. The judge added that Philip Morris had failed to produce those documents in this case and ordered that they be produced now.

Philip Morris’ “attempts at hiding documents in the morass of interlocking related organizations shall not be tolerated by this Court,” Fitzpatrick wrote in a decision that included several charts showing the relationship of various Philip Morris entities. “Nor will the Court countenance Philip Morris’ self-selected and voluntarily produced set of documents from selected sources.”