Tobacco's Smoking Gun?

It's D-Day in the increasingly heated world of tobacco litigation. Come Apr. 20, a circuit court judge in Palm Beach, Fla., will decide whether a 4,000-page stack of Brown & Williamson Tobacco Corp. internal documents will remain open for public consumption.

It has the makings of a landmark decision for tobacco's opponents. Plaintiffs' attorneys say the papers, first detailed in The New York Times last May, provide tantalizing support for their allegations that B&W quashed research--some of it decades old--proving the adverse health effects of smoking and the addictiveness of nicotine. The research could be critical evidence against cigarette makers in a host of high-stakes cases--most notably in Florida's attempt to win $1.4 billion from the industry to pay for smoking-related Medicaid claims.

STOLEN RECORDS? B&W already has lost one attempt to keep the controversial papers under wraps. On Apr. 3, lifting an earlier injunction, a Kentucky state judge deemed the documents "apparently part of the public domain." And a Mississippi judge is reviewing them for admissibility in a secondhand-smoke liability case pending there.

The longer the papers stay public, plaintiffs' attorneys reason, the less likely B&W will be able to keep their contents from juries. "At some point the court will think it's ridiculous that everyone except the jury can get to see these incriminating documents," says Richard A. Daynard, who represents plaintiffs in a New Orleans class action.

A decision not to seal the documents in Palm Beach won't automatically make them admissible as evidence in pending cases. B&W, which argues the records were stolen, will vehemently challenge their admission on the grounds that they are covered by attorney-client privilege. "We are taking every step necessary to preserve those rights," a spokesman says. It already has sued the University of California, several newspapers, and a law firm--each of which has obtained copies. But it may be too late: These documents may have strayed too far into the public domain to ever return.

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