STATE'S CASE: BIG TOBACCO CONSPIRED TO HIDE DANGER

If what the state's lawyers say is true, it was the deadliest
conspiracy: On a Tuesday in December 1953, tobacco executives from at
least four of the nation's tobacco companies met in the Plaza Hotel in
New York City and devised a plan to stay in business: They would lie
about tobacco, how they would market it and what it could do to the
body.

According to attorneys arguing the case for the state in a lawsuit
that asks for billions of dollars from Big Tobacco to treat sick
smokers, the executives created a front organization that would spread
misinformation about cigarette smoking, forever declaring it
"unproven" that cigarettes could cause cancer. And at their most
devious, the executives agreed not to make a "safer" cigarette,
keeping people addicted, state lawyers said.

To be sure, Paul Luvera, a lawyer arguing the state's case, had to
tell the most difficult story - one that doesn't have a pat beginning,
middle and end, and has complexities that can lull the brain into
inactivity - and so he began it simply, with that day in 1953. Facing
the stone-faced jury and more than a couple hundred people in the
courtroom, the slightly stooped Luvera stood up as straight as he
could and put it as simply as he could: The tobacco industry has lied
to America.

Luvera said Washington state's case against the tobacco industry is
not about the legality or morality of smoking. Instead, he said, it is
about a conspiracy, vast and complicated, that stemmed back to that
day in 1953.

"The issue becomes one about how the product was sold," Luvera said.
Tobacco was sold in such a way, he said, that robbed from the public
its right to make an informed choice. According to Luvera, 418,000
people in the United States die each year from smoking-related illnesses.

The case against Big Tobacco, long-awaited, began at 9:20 a.m.
yesterday in a standing-room-only courtroom in King County Superior
Court. At least financially, and probably socially, the stakes are
some of the highest ever. Washington is seeking $2.2 billion in
Medicaid reimbursements, and also penalties for violating Washington's
consumer-protection and antitrust laws that could double that amount.

Beyond that, the nation is watching. The case here could have
implications for other states - 37 others have filed lawsuits against
the tobacco industry. (Four states have settled out of court,
collecting a total of $36.8 billion.) If Washington state beats Big
Tobacco, it will have carried the water for other states. If the
industry wins, the case could start a domino effect, paving the way
for it to win other cases. State lawyers plan to explore arguments
that the industry's marketing targeted children.

Luvera spent part of the morning using an overhead projector to
display statistics about smoking, documents that simplify some of the
obscurities of his case and old advertisements that use images of
doctors to promote smoking ("More doctors smoke Camels"). He displayed
another of John Wayne, the actor who died of lung cancer, saying in
the advertisement, "no other cigarette has the flavor." Luvera said
the state has evidence that the tobacco industry manipulated nicotine
levels to hook smokers into the habit.

Luvera said that even though about half of adults smoked in the early
1950s, the tobacco executives meeting in New York were worried about
falling stock prices, poor publicity and the public's growing feeling
that cigarettes might be bad for your health. The executives, Luvera
said, formed a "gentlemen's agreement" to not develop a safer
cigarette. Luvera also said the executives agreed to create an
organization, later called "The Tobacco Industry Research Committee,"
to serve as a front for Big Tobacco and counter bad public relations
with misinformation.

"Every time the surgeon general came out with a report that said
smoking is bad for you . . ." the organization would buy ads and send
out press releases that said technically there was no proof that
smoking was bad, Luvera said.

Steve Berman, another lawyer arguing the state's case, offered more
detail about Luvera's initial statement, using statistics and
tobacco-industry memos and secret documents. He said documents show
that Big Tobacco manipulated nicotine levels in its cigarettes by
adding chemicals that would make nicotine easier to absorb into
smokers' systems. Additional documents show, he said, that Big
Tobacco's priority was marketing to children: ". . . our business is
the high-school student," Berman quoted from an internal document from
cigarette-maker R.J. Reynolds.

He also offered more about Big Tobacco's alleged conspiracy to keep a
safer cigarette from the public: Berman said the state had evidence of
nine different projects at tobacco companies that explored making a
safe cigarette. The companies didn't market the cigarettes because
they didn't taste as good as regular ones, he said, and also because
they could not unveil the cigarettes' only selling point without
hanging themselves.

"They caused 50 percent less cancer," Berman said, but using that tack
would be an admission that regular cigarettes caused cancer.

The state's opening statement lasted the entire day. Tobacco lawyers
are expected today to try to tear the state's argument down rather
than submit much new evidence of their own. Judge George Finkel is
also allowing a daylong opening statement by the tobacco lawyers.

The tobacco lawyers are expected to argue Washington's position is
hypocritical. Tobacco-industry lawyers likely will question every
statistic and number the state uses.

And they will deny the industry suppressed any information,
manipulated nicotine levels or nurtured any conspiracies.

But perhaps their most powerful argument is that Washington willingly
participated in the selling of cigarettes because it made millions of
dollars in taxes from cigarette sales. Washington takes in more than
80 cents per pack sold.

The trial is proceeding even as negotiators in New York try to settle
the case. State Attorney General Christine Gregoire has said a
settlement - which, like the trial, also would have implications for
other states because those states could sign on to the agreement -
would enable states to bargain for concessions a jury cannot demand,
such as limits on advertising tactics.

The tobacco industry wants a settlement because it would mean it could
know for certain what its costs will be. It could then bargain for
things such as immunity from other lawsuits, something a jury also
could not give it.

Checked-by: Patrick Henry