Debates: Reflections in Academic and National Media




(1)
FWO Fellow at Ghent University, Ghent, Belgium

 



Abstract

In this chapter, I discuss the debate that historians have had on the role historians as expert judicial witnesses have played in tobacco trials. I examine sources from academic journals such as Nature, The Lancet, The History News Network, and The Chronicle of Higher Education, while also adding those articles that originate in the regular media like The Nation, The New York Times, and The American Prospect. In addition, I examined who the protagonists of these debates were and what their arguments were. The debate revolves around already familiar problems of advocacy, objectivity, “hired guns”, but also on an attempt by the tobacco industry to censure plaintiffs’ experts Proctor and Kyriakoudes in 2009.


Attorney: Have you reviewed any other cigarette industry documents, internal documents, relative to this issue of health and cigarette smoking?

Otis Graham: I may have.

Otis Graham (Deposition in State of Texas v. American Tobacco Company et al.1997.)



15.1 Proctor in Nature


In September 2000, Robert Proctor wrote an article in Nature entitled: Expert Witnesses Take The Stand. As an historian of science, Proctor reported that he had worked on three court cases as an expert witness.1 Central in each case were two questions: (1) when was it reasonable to know that a product was hazardous, and (2) did the people who sold the product act responsibly, according to the scientific and ethical standards of that time? Proctor wrote that historians of science were especially suitable to demonstrate how “a theory or conviction moved from one community to another, filtered into public consciousness, and was accepted or rejected.”2 Proctor had done three cases of which the first one considered the suit filed by 2,800 women who were forcibly sterilized in Alberta, Canada from the late 1920s until the early 1970s, due to the province’s eugenics legislation. The second case Proctor reported was the Vanderbilt case, a class action in which 830 women sued for being fed radioactive iron in a nutrition experiment sponsored by the Rockefeller Foundation, the Atomic Energy Commission, and Vanderbilt University. The third case was Ironworkers v. Philip Morris which was tried in 1998. The trial was a class action suit brought on behalf of a pension fund of trade-union workers in Ohio who sought compensation for the costs of health-treatment of tobacco-related illness. Proctor’s research delivered proof that although there had been a scientific consensus on the dangers of smoking since the 1950s, the tobacco industry had “maintained that cigarettes were safe”, arguing that “further research” was needed, which resulted in “fostering public doubts” on the dangers of their product.3 Proctor noted that “I was apparently the first historian ever to testify for the plaintiffs in a federal tobacco trial; the tobacco industry, by contrast, has often used historians in its defence, especially to show that knowledge of tobacco hazards was widespread in the 1950s and 1960s.”4

Proctor acknowledged that he was paid $150 per hour, while he claimed that some of the defence experts were paid “ten times this rate.”5 He stated that such high rates could form a serious treat for the neutrality of the expert. Proctor also addressed the new Daubert standard, and posed the question “how does one determine a historian’s rate of error?” According to him, the Daubert rule was unfit for historical evidence in court.6 Yet, he wrote: “there may come a time when courts will have to decide what kinds of historical expertise are admissible.” Proctor proposed to use peer review as a yardstick. History would play an increasingly important role in litigation, he argued, because of its ability to explain to the judge how scientific practices and the perceptions of acceptable risk change over time.7 Most of Proctor’s remarks in this early article would become important issues in the debates on historians in American courts.


15.2 Laura Maggi in The American Prospect


Laura Maggi of The American Prospect wrote an article in February 2001 titled Bearing Witness for Tobacco. She discussed a number of historians who testified for the tobacco companies. Maggi noted that these historians were not known to be experts for the tobacco industry. She noted historians like Stephen Ambrose and the “distinguished medical historian” Kenneth Ludmerer.8 Maggi quoted Ambrose in a deposition from 1997 in the attorney-general trial brought by the state of Florida against the tobacco industry.9 He was asked “why he was testifying for the defendants.” Ambrose replied: “For compensation.” The attorney followed up, “So the reason you have agreed to provide the services is for the money?” The answer? “Yes.”10 On Ludmerer, she noted that he had not published on the history of tobacco.11 She further described the legal tactics of the tobacco industry, on which she noted the reaction of Allan Brandt: “[i]t is a very narrow view of what a sophisticated historian would call common knowledge.”12 Moreover, Maggi reported an article from 1998 written by researchers from the Gallup organization that criticized “the biased selection of polls by historians in tobacco trials, noting they consistently picked polls that give an inflated sense of the public’s awareness of health risks from smoking.”13 The Gallup paper focused on testimony given for the tobacco industry by Lacy Ford, a professor of history specialized in the history of the American South. Gallop accused Ford of selecting polls that supported the industry’s argument that the hazards of smoking were common knowledge, while leaving out those polls which had different results.14

Maggi stated that Ambrose refused to comment on his activities in service for tobacco companies. Ford made it clear in a phone interview that “he had made it a policy not to talk about the substance of his testimony.”15 In her conclusion, Maggi noted that “[t]he tobacco industry pays generously and gets its money’s worth.” In addition, she wrote that “[w]hat’s disconcerting is that plenty of independent scholars, when paid enough money, are evidently willing to lend their names to an enterprise that is responsible for hundreds of thousands of smoking deaths annually, and to what would be dubious scholarship in any other context.”16

This article is a good example of how questions on the tobacco experts rose only after the practice had been active for a couple of years. By the time of Maggi’s article, Ambrose had served in three cases as an expert for the tobacco companies, Ford had been active in at least seven court cases, and Ludmerer in no less than twelve cases.17 The secrecy with which these practices were conducted left them unnoticed and unpublished. Moreover, I would argue that experts like Ford, Ludmerer, and Ambrose failed to let their research be reviewed by their peers, which is an essential part of the historical enterprise. We can only speculate whether The New York Times had read Maggi’s article, when it stated in 2002 that Stephen Ambrose was “the most prolific, the most commercially successful and the most academically accomplished of a new group of blockbuster historians”, referring to his work on the Second World War and his work as a producer on the award-winning television series Band of Brothers. 18 The fact that expert witnesses like Ambrose, Ludmerer, and Ford have not published on tobacco and on their litigation-related research and, furthermore, refuse to comment on their involvement seems self-explanatory for the pride they take in their research on tobacco.


15.3 Patricia Cohen in The New York Times


In 2003, The New York Times published an article titled History for Hire in Industry Lawsuits. The author, Patricia Cohen, wrote that it had become important to question the role of medical historians as expert witnesses in lawsuits. She quoted Proctor on the subject: “[t]he historical profession has really not been prepared for this” and “[w]e don’t have disclosure rules for publications, we haven’t had discussions about the ethics of whether to testify or not to testify.”19 She also quoted John Burnham, an historian who has served as a consultant for a multitude of companies, including tobacco, lead, soda, and asbestos industries, when he declared that “everyone has a financial interest.” Furthermore, Burnham said that “[h]istorians can maintain their integrity no matter whose side they’re on”, adding that “[e]ven large corporations are entitled to justice.” The article was fully documented with many quotes from Proctor on tobacco and Agnotology,20 the news briefs from the AHA written by Martin and Neuenschwander, and referred to the work done by Rosner and Markowitz in lead cases.21 Cohen summarizes the state of the debate on historians as expert witness at the time, without reaching conclusions of her own. The article of Cohen clearly demonstrated that by 2003, there was within and outside of the historical community a debate about whether historians should serve as expert witnesses, especially those involved with the tobacco industry.22


15.4 David Rothman in the Bulletin of the History of Medicine


That same year, the Bulletin of the History of Medicine published an article by David Rothman, director of the Center for the Study of Science and Medicine at the Columbia College of Physicians and Surgeons, who himself had himself served as an expert witness in the Vanderbilt case, in which Proctor had also been an expert. Rothman gave a short historical introduction to the practice of expert witnessing by historians, mentioning among others Brown v. Board of Education, the Sears case, Native Peoples trials, and tobacco trials but also European examples like Eichmann, Papon, and Lippstadt.23 Rothman examined the question whether the standards of the historical craft would be “inevitable compromised” when historians served as expert witnesses.24 After discussing two cases of expert witnessing by historians and his own experiences, Rothman was relatively positive about historians taking the stand. Arguing that it was “far too simplistic” to interpret what happened in the courtroom as a practice where historians were “too committed to their side of the case to remain objective.” Furthermore, Rothman also used the “tu quoque-argument”, which we saw earlier with public historians, to argue that “[h]istorians are no less “objective” in the courtroom than they are in the lecture hall or in print.”25 Somewhat divergent from his own argumentation, Rothman stated that “[t]o enter the courtroom is do many things, but is not to do history.”26 Yet his final conclusion was that “[s]ome judges, and perhaps some colleagues as well, may prefer to think of expert witnesses as purely neutral and without personal commitment to the outcome. Such a stance, however, is not only unrealistic but also misguided. Advocacy has its place, and it can be promoted without compromising the craft.”27

This last conclusion is more consistent with Rothman’s reasoning when we take into account his previous argumentation that there were two reasons for historians to enter the courtroom. A first reason was that everyone deserves their day in court and needs to be defended in the best possible manner, and if need be also by historical facts presented by historians. The second reason, Rothman wrote, is that historians in the courtroom serve to aid justice.28 Rothman was apparently unsure about his view on the practice of historians as expert witnesses, since he arrives at opposing conclusions. The following year, in a reaction to an article of Proctor in The Lancet that interpreted Rothman’s article as an argument in favour of historians serving as experts in court, Rothman argued that his article should be interpreted otherwise. He declared that he had written that it was possible for expert witnesses to serve the trier of fact without compromising their professional integrity, but he insisted at length that “historians working for the defence or for the plaintiffs are not acting as true historians.”29 At the end of his reply, he repeated that, according to him, “[h]istorians working for the defence or for the plaintiffs are doing many things, but they are not acting as historians.”30 Of course, many articles that cite Rothman stick with the first conclusion as a catchy phrase to offer a conclusion.31 I find Rothman’s argument somewhat problematic. If historians are not practicing history in the courtroom, what are they doing then? If they can maintain their professional integrity, how can they at the same time not follow the standards of their craft, two elements which are, to me, inseparable from each other.


15.5 Proctor in The Lancet


In 2004, Proctor wrote an article, suggestively titled Should Medical Historians Be Working for the Tobacco Industry, which got significant response from the historical and medical community in the US. Proctor stated that: “[t]he industry is now hiring historians to assist in its defence, mainly by having its experts narrow their focus of attention to only those topics that show the industry in a favourable light.”32 He discussed the litigation-driven work done by Ludmerer, English, and Wilson, whose testimonies for the tobacco industry he knew from the case US v. Philip Morris et al.. Proctor added that Ludmerer, English, and Wilson did “not have a lot of peer reviewed expertise.” Furthermore, he mentioned Elizabeth Cobbs Hoffman and Jon Harkness as experts for the tobacco industry, remarking that the latter had only published on the history of clinical medical ethics and the former on American foreign relations.33 Quoting from Ludmerer’s deposition in US v. Philip Morris et al., Proctor had no problem to discredit Ludmerer’s litigation-driven work.34 He lists Allan Brandt, Louis Kyriakoudes, and himself as the only historians who testified against the tobacco companies.35 For Proctor the question whether historians who are publishing tobacco-funded research can do this without disclosing the source of their funding presented itself consequently. As an answer he referred to the American Medical Association who in 1996 adopted a “policy, urging scientific journals to reject for publication research funded by the tobacco industry.”36

Proctor’s attacks on expert witnesses on the payroll of tobacco provoked a reaction from John Burnham, a medical historian at Ohio State University, who had worked in two cases as an expert witness for the tobacco companies.37 His response called Proctor’s article “misleading.” Furthermore, he wrote that Proctor “is making fundamental criticisms of the legal system” because he, according to Burnham, suggested that “a scholar could be manipulated in his or her opinion by counsel.”38 For me, Proctor did not make a fundamental critique of the legal system by stating that experts were influenced in their opinion by legal counsel. In his author’s reply, Proctor elaborated on Burnham’s critique and rephrased his previous statement to the following: that “the bias [of the experts of the tobacco companies] is largely in the form of the framing (or delimitation) of the kinds of questions defence experts are asked to investigate.”39 Proctor concludes his arguments with three statements, namely that (1) “[a]ccording to the WTO and other scholars, cigarettes now cause about 5 million annual premature deaths every year”, that (2) the tobacco industry has succeeded in evading paying damages in litigation since the 1950s in all but two cases, and (3) that “[s]cholars who assist in the defence of the industry-e.g., by arguing that the industry’s response to publicity of harms was ‘both timely and appropriate’-would perhaps do well to ponder some of these numbers.”40 David Rothman’s reaction on Proctor’s article has already been discussed.41 The following years the debate slumbered despite continued tobacco litigation and the increasing involvement of expert witnesses in those cases.


15.6 The Tobacco Companies v. Robert Proctor


By 2009, the Engle Progeny cases were starting to multiply and historians were involved on both sides of the court.42 The defence had several historians in its service, whereas the plaintiffs were limited in their choice to only two historians: Robert Proctor and Louis Kyriakoudes. In 2009, Proctor was working on more than ten Engle Progeny cases.43 Proctor had proven himself not only a noted opponent of the tobacco industry in the courtroom but also a very vocal one in academic and public debate. The industry, annoyed by the raising number of Engle Progeny cases and Proctor’s continued involvement, decided to attack Proctor personally.

In November 2009, the Chronicle of Higher Education reported: Big Tobacco Strikes Back at Historian in Court.44 The issue revolved around the fact that Proctor was accused of influencing students who did research for the tobacco companies and furthermore of threatening them with publishing their names. Under the subtitle Getting Burned for Putting the Heat on Tobacco, Peter Schmidt details the chronology of the story. In April 2008, Gregg Michel, professor of history at the University of Texas, asked Matthew Gallman, professor of history at the University of Florida, to post notice on campus for graduate students to research on tobacco. In May, Michel, who served for the tobacco industry as an expert witness in multiple cases, recruited four students and identified them in a deposition.45 The transcript was then given by lawyers of the plaintiffs to Kyriakoudes, who was an expert witness in the same case. Kyriakoudes then forwarded the deposition to Robert Proctor.46

A week later Proctor e-mailed Ms. Smocovitis, a professor of history at the University of Florida, on the subject that “graduate students in the history department have been working quite intensively for the tobacco industry.” She was shocked and wanted more background explanation. Proctor wrote her that “[i]n my view this is historical practice, and I would be very interested to know if the advisers of these students know what they have been doing.” Smocovitis talked to Gallman, and allegedly declared she feared that Proctor might publish the identities of the students. One of the graduate students e-mailed Michel, after a conversation with her department’s chairman, relaying that she feared that their names would be published by Proctor. Proctor and Smocovitis continued to send e-mails, in which Proctor urged her to reveal on the next faculty meeting that students were secretly working for the tobacco industry. Proctor wrote her that “the majority of your faculty will do the right thing.” Smocovitis did not raise the subject at the next faculty meeting.47

In July 2009, lawyers from “Liggett Group, Lorillard Tobacco Company, Philip Morris USA, and R.J. Reynolds Tobacco Company” deposed Proctor to interview him on his involvement with the Florida Students. His e-mail exchanges with Smocovitis and Kyriakoudes were subpoenaed. Kyriakoudes himself was also deposed. In September, Proctor was again deposed in order to gain information on more documents. Smocovitis was deposed in October. Afterwards Proctor was accused of witness tampering, in a motion filed by lawyers of R.J. Reynolds. The motion furthermore asked the court to exclude Proctor’s testimony in a pending Engle Progeny case: Koballa v. R.J. Reynolds. Two weeks later, Proctor was again accused of witness tempering in a motion filed in another Engle Progeny case.48