By John Schwartz
Washington Post Staff Writer
Thursday, August 7, 1997; Page A01

The tobacco industry quashed research on the safety of cigarettes and took a number of other steps as part of a decades-long effort to protect itself from lawsuits, newly released internal industry documents appear to show.

The eight documents, nearly 90 pages spanning more than 30 years, came to light yesterday after the tobacco industry lost a key ruling in a Florida court, prompting cigarette makers to abandon their intensive efforts to keep the documents secret.

Some of the language found in the documents is startlingly blunt. Handwritten notes of a 1981 meeting of lawyers for all of the tobacco companies include this statement: "Cigarettes kill people beyond a reasonable doubt."

"As a product liability lawyer I had never seen documents like these," said Marc Kasowitz, who reviewed the documents for Liggett Group Inc. "I was absolutely flabbergasted."

The release of the documents comes as the Justice Department is continuing its investigation into whether the industry committed fraud over the decades by concealing the dangers of smoking, and as the industry is trying to win support in Congress for a national settlement of tobacco litigation.

Florida's 4th District Court of Appeal ruled Tuesday that the documents provided evidence that the industry had committed fraud, and thus could be used in the state's lawsuit seeking reimbursement for tobacco-related health care costs. Philip Morris Cos. said the ruling left it with "no viable or practical procedure to obtain further judicial review," and so the industry did not attempt to block the court's release of the documents.

The action would likely have the most immediate effect on Florida's suit, which has begun pending the outcome of the national settlement. The state had called for the release of the documents as a condition of settling its suit against the industry separately. The Liggett revelations could either strengthen the state's hand or allow it to bow out of its litigation.

R.J. Reynolds Tobacco Co. released a 15-page analysis of the documents, and said that "far from smoking guns, these documents are the legal equivalent of firing `blanks.' " Philip Morris lawyer Gregory G. Little, in a statement, said the papers "show nothing more than conscientious lawyers offering legal advice on legal issues."

Liggett, the smallest of the major cigarette manufacturers, submitted the documents to courts in a number of states as part of its settlement of suits by state attorneys general against the tobacco industry. The other companies fought the release of those documents that came from industry-wide meetings, maintaining that their release would violate the companies' attorney-client privilege. But that privilege can be broken and documents made public if evidence is shown that a crime or fraud has been committed. So far two courts reviewing the Liggett documents have ruled against the companies.

An October 1986 R.J. Reynolds legal memo outlines ways to defend the company against lawsuits based on claims that tobacco additives caused disease. It cites a memo by an employee of Lorillard Tobacco Co., Alexander W. Spears (later the company's CEO) that suggested in 1984 that industry lawyers working together "thwarted the industry scientists' desires to assure the safety of the product by testing ingredients adequately."

A May 23, 1964, document by the Washington law firm now known as Arnold & Porter discussed a possible survey that could show that consumers were aware of the risks of smoking -- a finding that the attorneys suggested could be used to undercut the need for tobacco warning labels. Because a finding that smokers were not aware of smoking's risks could work against the companies, the attorneys suggested that the researchers could send all copies of interviews to the lawyers' offices, leaving "nothing in the record" of the pollsters "to subpoena."

"If the returns were unfavorable they could be destroyed and there would be no record in any office of the nature of the returns," the memo stated. In other documents, attorneys discuss research they will fund, and how they might influence research being conducted by government scientists.

In yesterday's analysis of the documents, R.J. Reynolds said that the statement about having "thwarted" safety research was incorrect, because the Lorillard memo the note refers to actually supports testing. The industry set up a testing facility three years later to accommodate the requirements of a new federal statute.

A tobacco industry attorney said that the handwritten note about cigarettes and death was a mischaracterization, and that the study described in the Arnold & Porter memorandum was never conducted. Other documents that have been released in recent years "pose more trouble for the juries than these," the attorney said.

But Liggett attorney Kasowitz said, "Those companies cannot avoid the impact of these documents . . . by attacking the judges who rendered those decisions or by claiming that the documents don't mean what they clearly say."

It was unclear yesterday how the Liggett documents might affect the national tobacco settlement being considered by the White House and Congress. The proposed deal calls for the industry to pay billions of dollars and accept new restrictions on the advertising and marketing of cigarettes in exchange for immunity from most lawsuits.

Minnesota Attorney General Hubert H. Humphrey III, an opponent of the deal, congratulated Florida Attorney General Robert Butterworth on his victory -- but then said the Liggett documents offer "just a peek behind the veil of deceit which the industry claimed was protected by attorney-client privilege." His state has collected some 33 million pages of industry documents and is attempting to get more before Minnesota goes to trial next January. Humphrey, who has said his cache of documents contains not just smoking guns, but "smoking howitzers," called the Liggett documents "a small, but significant clue as to why full disclosure is worth fighting for" before making a "deal with the devil."

Sen. Patrick J. Leahy (D-Vt.), who has pushed for lawmakers reviewing the tobacco deal to examine the Minnesota documents, agreed with Humphrey's statement and said yesterday that the Liggett papers "confirm that the tobacco companies have plenty to hide. . . . There should be no immunity without sufficient disclosure of industry documents," Leahy said.

But Mississippi Attorney General Michael Moore, the leader of the settlement team, said the Liggett documents do not support the notion that the deal should be delayed. The Liggett documents were part of a powerful set of papers that could be used against the industry if the national tobacco settlement does not go through -- "not only is the gun loaded, it's ready to be fired now."