Historians in Tobacco Litigation, a Conclusion

When Dr. Gro Harlem Brundtland became director of the World Health Organization (WHO) in 1998, she stated that “the tobacco epidemic should be tackled by an international collective and that the WHO should take a leadership role.”¹ The tobacco epidemic caused death and destruction not only in the form of cancer and disease, but also through fire accidents from burning cigarettes and massive agricultural deforestation.² In addition, more and more harmful additives were discovered in cigarettes. An opinion from Proctor published in The New York Times, narrated how smokers were “puffing on polonium”, and hundreds of other toxic chemicals.³

Yet smokers, and non-smokers for that matter, remain remarkably unaware of the dangers of cigarette smoking. In a study from 2011 published in Tobacco Control, researchers probed 239 adult smokers on their knowledge about smoking. They concluded that: “As a whole, the study sample showed important deficits in knowledge and beliefs about smoking.⁴ For example, nearly half of the study population (48 %) either agreed or strongly agreed with the statement “nicotine is only a minor factor whether a person can stop smoking.”⁵ This deficient knowledge about smoking is yet another example of the industry’s capacity to determine the public image of its product. Under the subtitle A question of Priorities, two American anti-tobacco advocates wrote in 2009 that: “[t]oday 50 Americans will be murdered; 89 will take their own lives; 40 will succumb to HIV/AIDS; and 112 will die from motor vehicle injuries. This sums to 291 deaths, compared to the 1,200 people who will die as a result of their smoking.”⁶

“Almost 6,000,000,000,000 cigarettes are smoked every year”, according to Proctor, which is “enough to make a continuous chain from the earth to the sun and back, with enough left over for a couple of round trips to Mars.”⁷ The cost in human terms of smoking those cigarettes can be presented in a couple of disturbing numbers which the WHO publishes in their fact-sheet on tobacco:

1) Tobacco kills up to half of its users.

2) Tobacco kills nearly 6 million people each year. More than five million of those deaths are the result of direct tobacco use while more than 600 000 are the result of non-smokers being exposed to second-hand smoke. Unless urgent action is taken, the annual death toll could rise to more than eight million by 2030.

3) Nearly 80 % of the world’s one billion smokers live in low- and middle-income countries. Consumption of tobacco products is increasing globally, though it is decreasing in some high-income and upper middle-income countries.

4) Tobacco caused 100 million deaths in the 20th century. If current trends continue, it may cause one billion deaths in the 21st century.⁸

The WHO has not sat idly by, but has issued the first-ever global health treaty: The Framework Convention on Tobacco Control (FCTC), which has now been signed and ratified by 168 countries worldwide.⁹ These countries committed to higher cigarette prices, abolition of most tobacco advertising, and global cooperation in combatting cigarette smuggling.¹⁰ The drafting and acceptance of the convention happened under strong opposition of the US delegation to the WHO, and even today the United States Congress has yet to ratify the FCTC.¹¹ Health advocates described the FCTC as “a landmark step towards global cooperative actions against health threats.”¹² Despite all the efforts by the WHO and anti-tobacco advocates, “[t]obacco continues to aggressively promote their deadly product.”¹³ Proctor writes that “[t]he value of a life to a cigarette maker is about $10,000.”¹⁴ According to the World Lung Foundation that number is only $6,000.¹⁵ Whatever the number, the tobacco industry continues to sell its dangerous products. For Proctor “[t]he cigarette is the deadliest artefact in the history of human civilization.”¹⁶

Health advocates have increasingly argued in favour of tobacco litigation as a means to counter the tobacco industry. For Alderman and Daynard, two anti-tobacco advocates, litigation is an important tool in public health policy.¹⁷ Daynard lists seven positive results of tobacco litigation¹⁸: (1) millions of internal documents were obtained,¹⁹ (2) research publications of those internal documents diminished the legitimacy of the tobacco industry,²⁰ (3) the tobacco companies were forced to admit smoking is bad for health on their websites,²¹ (4) victims of tobacco-related diseases received damages,²² (5) tobacco control programs were instituted,²³ (6) an example for other tort litigation concerning guns, lead paint, and fast foods,²⁴ (7) augmented public interest.²⁵ The WHO also recognized the value of tobacco litigation when it rewarded the Minnesota trial team with the WHO’s Tobacco Free World Award. ²⁶

Daynard offers an interesting sixth argument: that consumers of other defect products can be inspired by tobacco litigation to sue the companies responsible for their illness.²⁷ Alderman came to similar conclusions: just as the plaintiff’s lawyers in tobacco litigation had matured their strategies in asbestos litigation; tobacco cases may inspire other categories of lawsuits to protect public health.²⁸ Those categories were, inter alia, obesity lawsuits and alcohol-related litigation.²⁹ Big food was, according to Brownell and Warner, two public health researchers, “an organized and politically powerful industry”, similar to the tobacco industry.³⁰ According to Brownell and Warner, ignoring tobacco’s history was a serious peril for other public health policies.³¹

An additional and eighth argument in favour of tobacco litigation in the US is the example it sets for other countries.³² According to Finnish political scientist Heikki Hiilamo, tobacco litigation is under way in Argentina, Australia, Brazil, Columbia, Finland, India, Israel, Japan, The United Kingdom, Turkey, and Uganda.³³ Heikki’s article describes how the tobacco industry is starting to recruit medical expert witnesses in Europe for tobacco litigation, demonstrating in detail how European researchers are getting research funding in exchange for their testimony.³⁴ Legal counsel of the defence used similar legal strategies as in US litigation.³⁵

In an article from 2006, Vernick and other anti-tobacco advocates argued that litigation results from Engle and US v. Philip Morris et al. represented “a substantial future threat to the industry and a corresponding potential benefit for the public’s health.”³⁶ As we have discussed, the third wave of tobacco litigation in the US holds great opportunity’s to put the tobacco industry under pressure in court, although the tobacco companies are doing everything in their power to diminish the legal possibilities for doing so. The Class Action Fairness Bill of 2005, which makes class action suits harder for plaintiffs to litigate, is a clear example of the industry’s influence in Washington.³⁷ The tobacco industry is pushing hard for legal reforms because litigation in Engle-related cases is hurting them. With 164 of 8,000 cases tried, tobacco companies have paid over 200 million dollars in damages in Engle Progeny cases.³⁸ The tobacco industry shows remarkable resilience from these payouts. Tobacco companies are budgeting the cost of litigation in order to reassure stockholders that tobacco litigation is kept under control.³⁹ In their annual report, Altria Group Inc., the company that controls Philip Morris, stated that “[f]or the years ended [sic] December 31, 2012, 2011 and 2010, product liability defence costs for PM USA [Philip Morris], were $228 million, $272 million and $259 million, respectively.”⁴⁰ In contrast, Altria made $1,27 billion in the second quarter of 2013, and is thus projecting a profit totalling $5 billion for the fiscal year 2013.⁴¹ Although litigation costs are higher than a decade ago, they are far from bankrupting the industry, as had happened with the asbestos industry.⁴² In their report on the second fiscal quarter that ended in June 2013, Altria announced that: “Altria Group, Inc. and its subsidiaries have achieved substantial success in managing litigation.”⁴³ The tobacco industry is a capitalistic enterprise which will continue to sell its harmful product as long as regulation does not force it to change its product. In other words, and as Judge Posner described it in his article on negligence from 1972: “When the cost of accidents is less than the cost of prevention, a rational profit-maximizing enterprise will pay tort judgments to the accident victims rather than incur the larger cost of avoiding liability.”⁴⁴

British historian Virginia Berridge gave a lecture in 2000 at the London School of Hygiene and Tropical Medicine entitled History in Public Health: Who Needs It?. She argued that: “[h]istory can offer insight into public-health policy (….) to open up issues and to ask broad questions that no-one else does.”⁴⁵ Berridge, who herself has published on the history of tobacco, offered such an insight when she argued that there were “clear parallels between the story of opium at the end of the nineteenth century, its growing cultural and legal isolation, and that of tobacco and smoking at the end of the twentieth century, which seems to be going through a similar process.”⁴⁶ Furthermore, she stated that when confronted with presentism and interdisciplinary work, historians were encouraged to question their own methodologies. Although, according to Berridge, presentism “sends a shiver down many historians’ spines”, the interdisciplinary work between the discipline of history and the public health movement offered “analytical tools, both sides need and could benefit from.”⁴⁷ Erich Haberer had similarly argued in favour of the interdisciplinary cooperation between lawyers and historians as established in the Ludwigsburg paradigm.⁴⁸ In tobacco litigation, historians, lawyers, and the health community have successfully worked together to come to a very reliable and outstanding historical account of the history of the cigarette and its industry.

Since 1986, 50 historians have testified in tobacco litigation. They have presented the history of the tobacco industry and their product, as expert witnesses in court. A summarized version of their testimony was presented in the first chapters of this third part of the book. Chapter 10 discussed the rise of the cigarette by means of seven developments which explain the rise of the cigarette; namely, flue curing, matches, mechanization of production, the oligopolistic structure of the tobacco industry, World War I, taxation, and mass-marketing. Thereafter, in Chap. 11, I analysed the discovery by the scientific community of the health hazards related to smoking. While studies that showed that smoking was dangerous had been met with scepticism by scientists in the 1930s and 1940s, the causal connection between disease and smoking had become accepted by the scientific community in early the 1950s. When the Surgeon General Report of 1964 was presented, the scientific community was not the target that needed convincing, the general public was.⁴⁹ The public needed convincing because tobacco companies had continued to maintain that its product was not unhealthy, through public messages as for example The Frank Statement from 1954. As we have seen in chapters 11 and 12, the industry reacted fast and decisively to save its product. The tobacco industry developed three compatible strategies: (1) they hired scientists to create a scientific controversy on the health risks of smoking⁵⁰; (2) the tobacco companies evaded regulation through effective lobbying⁵¹; (3) the tobacco industry continued to aggressively promote their product as desirable and hazardless through mass-marketing.⁵²

This historical overview was based on historical research of advertising materials, like ads in newspapers, ads in magazines, television ads, product placement in movies, and much more. Intriguingly, while the most important resource for expert witnesses on the history of the cigarette and its industry should have been the internal tobacco documents, in US v. Philip Morris et al., only the historians on the plaintiff’s side had researched them.⁵³ Furthermore, only five historians of the 50 experts are publishing or have published or researched and are researching on the history of smoking and the tobacco industry.⁵⁴ This and other damaging facts were uncovered during the depositions of Ludmerer, English, and Wilson.⁵⁵ Historians have served the tobacco companies in their three-part legal strategy: (1) by arguing that there was a scientific controversy on the health hazards of tobacco, (2) by claiming that consumers were well aware of the dangers of smoking and made an informed choice, (3) by augmenting the cost of litigation in the tradition of tobacco’s scorched-earth tactic.⁵⁶ Hereafter, I analyse three related issues for historians in tobacco litigation, namely, advocacy, ethics, and transparency. Although these problems are intertwined I will, for the sake of argument, treat them separately.