WASHINGTON (Reuters) - A tobacco industry attorney asked a federal judge on Friday to dismiss the U.S. Justice Department's lawsuit seeking to recover billions of dollars spent by the federal government on smoking-related illnesses.

``The government's claims are entirely lacking in any foundation in law,'' Herbert Wachtell said in arguing during a hearing that the massive lawsuit, which accuses the tobacco industry of fraud and deceit since the 1950s, should be thrown out of court. But Justice Department lawyers replied that the lawsuit, which seeks to recover much of the $20 billion spent by the federal government every year on smoking-related illnesses, should be allowed to proceed to trial. Among those named in the suit were Philip Morris Cos. Inc.; R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Corp.; British-American Tobacco Plc; Loews Corp.'s Lorillard Tobacco Co. Inc.; Brooke Group Ltd's Liggett Group Inc.; the Council for Tobacco Research U.S.A. Inc.; and the Tobacco Institute Inc. The lawsuit, filed in September 1999, seeks to recover money under two laws that apply to Medicare, the federal health care program for the elderly and others, and health programs for U.S. military personnel. The suit also invokes the federal racketeering law to seek to force the tobacco firms to give up their ``ill-gotten'' profits. One Of The Largest Lawsuits Ever Wachtell said that if the lawsuit ``is not the largest lawsuit of all time, it certainly ranks high'' because of the amount of money sought. He noted that for more than three decades the government had failed to bring any other similar lawsuit under the Medical Care Recovery Act, and that Attorney General Janet Reno in congressional testimony a few years ago had said that law could not be used against the tobacco industry. Wachtell said the federal government had no legal right to recover smoking-related medical costs, because the law does not apply to Medicare. But even if the law did apply, he said the government cannot put together the claims of hundreds of thousands, if not millions, of smokers into a single lawsuit. Justice Department attorneys urged the judge to allow the case to go to trial, saying the tobacco industry's arguments were ``wrong.'' Department attorney Frank Marine said the government believes the tobacco companies ``are continuing to deceive and continuing to spread the big lie'' that smoking cigarettes does not have adverse health consequences and that the firms do not target youths. Department attorney Mark Stern acknowledged that the department's position up until the past year had been that the Medical Care Recovery Act did not cover Medicare. U.S. District Judge Gladys Kessler asked whether an agency has an even greater burden of proof if it suddenly changes its position after taking a different view over a long period of time. The judge gave no indication of when she would rule or what her ruling would be. No matter what she decides, the losing side can go to the U.S. appeals court.

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