SMOKE AND VIDEO

THE PLAIN DEALER February 21, 1999
* Ohio unions, tobacco firms enlist computers to help make billion-dollar case

By Stuart Warner
Plain Dealer Reporter

AKRON—When Big Labor in Ohio takes on Big Tobacco beginning tomorrow in U.S. District Court, the trial will be nothing like what you see on TV or at the movies. The real thing will be a much bigger production. And decidedly more high-tech. The courtroom of U.S. District Judge James S. Gwin has been wired with cable that would run the length of three football fields, linking more than $150,000 worth of equipment, and giving lawyers the ability to call up evidence at the touch of a computer screen. The technology will cost up to $10,000 a week for a trial expected to last up to three months. But neither side is sparing any expense.

As much as $2 billion is at stake. More than 100 union health and welfare funds from Ohio are asking for that amount in their class-action suit against the large tobacco companies. The unions are seeking to recover funds spent on treating the smoke-related illnesses of their members. Most of what the suit alleges has been through the courts before – that tobacco companies target minorities and youths, that there has been a conspiracy to conceal information about the dangers of smoking, that tobacco companies have known for decades – through their research – about those dangers. Some new wrinkles alleges that the tobacco companies have targeted blue-collar workers and that the companies are guilty of violating RICO or federal and state racketeering statutes. At least 14 similar suits by union trust funds are pending nationally. This is the first to reach trial. * Complex video setup to speed $2 billion Ohio tobacco trial

"The fact that this case is going to trial and will be heard by a jury is a big victory for working men and women of Ohio," publicist Kate Hubben wrote on behalf of the Tobacco Litigation Group. "A victory in this case would force tobacco companies to disgorge their profits and compensate the trust funds for illness attributable to smoking." Phillip Morris Inc., one of the defendants, responded in a release that "nine other district courts ... have dismissed RICO claims brought by unions trust funds because such claims are wholly derivative of the injuries allegedly sustained." The company also denies the plaintiffs’ claim of conspiracy to conceal the dangers of smoking because "the claimed risks ... have been a matter of common knowledge for decades." However, one of the tobacco companies, the Liggett Group Inc., has settled with the plaintiffs, as it has in a number of other cases. Bennett S. Lebow, CEO of the Book Group, which owns Liggett, is expected to testify on behalf of the unions.

Lawyers for both sides were asked on Thursday by the judge not to discuss the case further with the press until the jury is selected. Gwin also was unavailable for comment. Jury selection will be at 8:30 a.m. tomorrow. Court clerks familiar with Gwin’s style said to expect that the jury will be picked and the opening arguments will begin before noon. Lawyers from firms in 11 states are representing the two sides, 29 for the plaintiffs and 78 for the tobacco companies. Fourteen Cleveland law firms are involved in the case. Since May 1997, they have made 691 filings and motions for the court, many of them 150 or more pages long. Court clerks said the documents took up moor than 20 feet of filing space. Yet the courtroom will be virtually paperless.

The defense has almost 9,000 pieces of evidence, the plaintiffs more than 1,000. Almost all of it has been entered on compact discs or into computer hard drives to permit viewing from almost anywhere in the courtroom on the multimedia setup done by InVu Corp. Of Independence. The sides are splitting the cost, which could run over $1 million if the trial runs its full course. The equipment includes a 7-foot by 10-foot screen. A 37-inch monitor sits behind the witness stand. In front of the jury box are two 42-inch flat-panel monitors.

Gwin will have a 17-inch flat-panel screen in front of him in addition to his laptop computer. The defendants and plaintiffs each will have two 17-inch monitors at their tables plus at least two laptops. The court reporter will have a 17-inch monitor as well as a computer for the courts’ real-time deposition system that allows the record of the proceedings to be read almost instantaneously. The presenting attorney will have a touch-screen monitor and Elmo. The touch screen allows the attorney to call up a piece of evidence instantly. Elmo is an overhead projector that uses a camera to take pictures of any evidence that isn’t in the computer. It is available for all trials at the Akron federal courthouse. The courtroom also was wired with a 12-channel sound system, and there is a production-quality VCR linked to all the screens. And each side has a computer expert at its table to manage the technology.

But even with all the bells and whistles, the judge still maintains firm control of the courtroom. The evidence pops up on his screen before it can be seen by the jury. He has a switch at his bench that can shut down the entire system at any time. Tom Kalish, InVu operations manager, said more than 300 hours went into planning and setup. It took three technicians a day to wire the courtroom. He said InVu has provided technology for more than 400 trials during the last five years, including some of the presentation for the O.J. Simpson trial. He said his company’s data indicated that the side with the technological advantage often wins cases like these. “Usually when one side sees that I’m doing the wiring for the other side, they want it, too,” said Michael Marcel, a technician with Colortone Audio Visual, which subcontracted for the setup work. "This trial has a pretty level playing field."

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