FWO Fellow at Ghent University, Ghent, Belgium
This chapter offers a conclusion on the role historians have played in tobacco litigation in the US. It discusses the current tobacco epidemic based on material from the WHO. The chapter further examines the strength of litigation to force the tobacco industry to change its habits. I also discuss the role of historians as an expert judicial witnesses in tobacco litigation as a controversial legal practice in general and on three specific points: advocacy, ethics, and transparency. For this chapter, I drew from my qualitative as well as quantitative analyses on the involvement of historians as expert judicial witnesses in tobacco litigation.
Science sans conscience n’est que ruine de l’âme.
Science without conscience is but the ruin of the soul.
16.1 The Framework Convention on Tobacco Control
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
16.2 Litigation as a Solution
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
16.3 The Role of Historians in Tobacco Litigation
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.
Public history and especially expert witnesses have been accused on multiple occasions of advocacy, the argument being that historians will sell themselves and history as hired guns.57 In the case of tobacco litigation the argument of advocacy is a plausibility. We have discussed multiple examples of historians who have made tens of thousands and even hundreds of thousands of dollars as expert witnesses, working for the plaintiff or for the defence.58
As mentioned before, Proctor has made over $1,500,000 as an expert witness.59 In his article in Nature from 2000, he had declared that he made $150 an hour.60 Michael Schaller from the University of Arizona has made over $1,500,000.61 Robert Norrell from the University of Tennessee has received over $1,000,000 in compensation.62 Peter English stated in his deposition in US v. Philip Morris et al., that he charged $350 an hour. English also declared in that same deposition that he had made “approximately” $400,000–500,000 as an expert witness for the tobacco companies.63 In the same trial, Kenneth Ludmerer acknowledged that he made $350 an hour and an extra $3500 when he had to stay overnight. He had made $500,000–550,000 in his career as an expert witness for the tobacco companies.64 Stephen Ambrose reported to Laura Maggi of The American Prospect that he had made $25,000 in Covert v. Liggett Group .65 Jon Harkness, historian now turned patent lawyer, has also made around half a million dollars for his work for the tobacco industry; $300,000 for testifying and another $200,000 for research.66 Robert Wilson, who was also deposed in US v. Philip Morris et al., declared that he had made “approximately” $500,000 as an expert for the tobacco industry.67 Historians are charging rates ranging from $100, $200, $300, and $400, to $600 an hour. The lower figures are for research hours, while the higher ones are charged for hours spent on depositions and testimonies. These numbers are immensely high and it is very likely that experts will be influenced by them.68 Some historians make more from their litigation-driven research than from their regular salary as a tenured professor. For example, Peter English acknowledged in his deposition in US v. Philip Morris that he got over 50 % of his income from tobacco-related research for legal firms.69 When historians receive these lucrative payments can these endanger professional ethics? When a professor represents an industry and a university, does (s)he not leverage his university’s reputation for objectivity for the benefit of an interested party?
Some experts working for the defence have argued that they are not working for the tobacco industry but for independent legal firms and that they do not receive salaries from the tobacco industry itself.70 For example John Burnham, himself an expert for the defence, has argued that his duty was to assists outside counsel as a consultant. He just worked on the question what evidence there was out there that was relevant to the case. He argues he did not work as an expert witness. I do not agree with Burnham, in so far that I argue that there is a clear difference between a consultant and an expert witness.
What is a consultant? I do not study historians working as consultants. Because their work is untraceable without corporation of either the historian or the legal firm, which in case of tobacco litigation is non-existing with most actors involved. Furthermore, legal firms let historians working as consultants sign confidentiality agreements and their work is in no way public record, as it is completely secluded from pre-trail fact finding activities. Wijffels argues in favour of historians limiting their involvement in litigation to the pre-trail period. I, by contrast, am completely opposed to this idea, because there is no way of knowing what these historians have done, as it is a private agreement. Which is perfectly fine with me, except when academic historians, who not only have a private interest but also bear social responsibilities, hide behind the façade of the consultant. The matter is different for private historians, who have a company, or work solely as a consultant. No institution is paying them, they have a business to run. Yet, a professor should keep a higher cause in mind, namely, the broader public interest. In addition, if historians work as consultants do they not have an obligation to enable their peers to review them and to be open about their work? Peer review is essential for good scholarship, and I believe that scholars have the responsibility to share their research, something consultants in general do not do. Furthermore, should consultants not know which litigating party will use their research or in which manner? Should historians or other scholars working as consultants not continue to ask broader questions that go beyond the requests put before them by legal counsel? Is that not the duty of a historian, whether working as a consultant or an expert?
Burnham wrote me: “My duty was to assist outside counsel. Their duty was to defend certain business firms in specific cases, not to make a social statement.” I think the jobs of lawyers and historians are sometimes similar when they are looking for evidence. Yet the “duty” (as Burnham described it) is quite different for a historian, as a scholar, from that of a lawyer. A lawyer will want to know everything about a case. After which, the lawyer will select the facts which suit him best, because it is his duty to win the case. A historian, and certainly a scholar, has no such duty. On the contrary, a historian should always keep a more moral and social stance on his work. As a scholar and historian, one must surely go beyond “aiding outside counsel.” A contract makes an expert assist outside counsel. The expert made a choice to work for them. So consultants should consider the pro’s and con’s before singing. How is it that the choice to work as a consultant eliminates the most basic standards of professional research expected from a scholar and a historian?
What is an expert witness? I only research the involvement of historians as expert witnesses, for practical reasons I explained above. Judicial records are publicly available and, furthermore, the expert has to publicly align himself with a party. And it does not matter who is paying whom. There is a legal connection between a litigating party and a witness that far outweighs the contract between the expert and outside counsel. In the case of an expert witness, even more so. A normal witness–an eyewitness–is held to report the facts as he or she witnessed them. An expert witness testifies an opinion in court in order to aid the trier of fact. Experts are allowed to give an opinionated testimony because of their expert knowledge and study. The experts are allowed to communicate their opinion on their speciality to aid lay people–judge and/or jury–so that they too can understand the matter at hand, which is of great importance to the trier of fact. This difference is stated clearly in the FRE 702–705, the ruling in Frye v. United States; and Daubert v. Merell Dow Pharmaceuticals; and Kumho Tire Co. v. Carmichael. So according to caselaw and evidence rules, Burnham has clearly worked as an expert witness in Dewey v. R.J. Reynolds 1986, and in Cipollone v. R.J. Reynolds also in 1986, and not as a consultant.71
So when a party in the adversarial process of litigation starts the search for an expert witness, they invite a historian. They will invite someone who is sympathetic to their cause, to their story, to their interpretation of events, to their legal strategy. That is the duty of legal counsel. The experts are invited. They make the choice to testify under oath, to be deposed under oath, to write an expert report for their party. He or she has a choice. An expert, as an expert witness opposed to what an eyewitness does, renders an opinion based on expert knowledge. The expert gives a version of history that is sympathetic to the cause of the litigating party for whom the expert testifies–not out of bias but because the expert has formed that opinion through years of research. The clash of different opinions that follows, is the nature of the adversarial process, so that through the confrontation of opposing opinions (on law, on the facts, on history) the judge or the jury will find a road, mostly in the middle between both arguments, where justice lies. No party will thus choose an expert witness whose opinion is hostile towards their own arguments. Again there is nothing wrong with that, assuming that the experts have formed their opinions through years of research and discussions with his or her peers, and not because of recently acquired funds through a litigating party or their legal representatives.
So I disagree with Burnham that expert witnesses do not testify for the tobacco industry, which legally, they, without doubt, do. When a witness is called into court or for a deposition, the witness is called as the plaintiff’s or the defence’s witness. Experts are sworn in as either the plaintiff’s or defence’s witness. An expert witness, in a legal sense, is directly linked to the litigating party who calls him. Who legally pays the witnesses for their time, does not matter.
Burnham’s argument that everyone deserves legal representation is of course valid. “Corporations are people”, in that sense that they have a legal personality. Which is the same in Europe, and to my knowledge, is an almost universal principle. Everyone deserves legal representation and the ability to use experts when needed. Legal representation and equal arms in an equal-level playing field are fundamental legal rights for everyone. To be clear, I do not, as Proctor has argued, support the idea that historians should refrain from testifying for the tobacco industry. Although, their choice to testify should be based on the firm belief, rooted in their research, that the opinion they render is the truth. Which is, I argue based on my research, a sentiment almost completely absent with most historians working for the defence. Considering that most have never researched anything on the history of smoking and the tobacco industry. That is also why I argue that most historians working for the defence “are in it for the money.”
In defence of these experts: historians who chose to become expert witnesses take risks. They put their professional careers, as well as their professional and personal reputations on the line.72 Furthermore, expert witnesses conduct lengthy researches and go through much effort to make every footnote fit in their witness report.73 In addition, historians working as expert witnesses go through the stressful and unfamiliar tribulations of the courtroom. Depositions and testimony in court, certainly cross-examination, are activities that deserve appropriate compensation. Moreover, considering that prices are set by the ratio between supply and demand, historians also use the fact that they have expert knowledge on a certain subject and that litigators only have a limited choice of candidates. In conclusion: these high salaries are on the one hand understandable because of the special kind of service historians as experts witnesses deliver and, on the other, economic reasoning also explains the high figures to a certain extent. Whatever the reasons, these high numbers will and do affect the research and the expert. In the following topic I discuss whether, according to the Code of Ethics proposed by De Baets, historians who have served as expert witnesses in tobacco litigation have done so ethically?
As discussed in topic 5.4. Confronting Ethics with De Baets, the role Ludmerer, English, and Wilson have played in US v. Philip Morris et al., did not conform to the code drafted by De Baets. An ethical code may ensure that the expert historian tells the truth and avoids that he engages in advocacy.74 Historians can manipulate historical knowledge by changing, leaving out, minimalizing, switching and distorting historical information. De Baets defines the abuse of history as “[t]he abuse of history is its use with intent to deceive.”75 He believes that there is a difference between the abuse and irresponsible use of history.76 He defines the irresponsible use of history as “[t]he irresponsible use of history is either its deceptive or its negligent use.”77 There is a difference of intent between the two.
On the subject of sanctioning certain abuse, De Baets sees many possibilities but is confronted with a dilemma. What type of punishment should be imposed: a symbolic, professional, or legal one? The dilemma De Baets is confronted with is that if we choose to punish historians, there is a threat that this will endanger innovative research and historiography. Punishing means risking, on the one hand historical monopoly of one master-narrative and, on the other hand, oblivion for certain parts of history. Punishment conjures up disturbing images of unjustified repression of historians. While when, we refrain from acting upon abuse of history, this calls for repetition of abuse and destruction of legitimate memory.78 Instead of punishments, De Baets argues for prevention and professional duty. Prevention is achieved by teaching and raising awareness with students about acknowledging intellectual debts. Another form of prevention lies in the element of personal reputation. Many historians cannot risk to be completely discredited in court; for what historians do in court influences their own intellectual standing and that of their works. Secondly, historians in all their academic and public responsibilities have the duty to oppose a known abuse in their field. They should refuse to cooperate with such ventures and denounce its products. Historians have a professional duty of accountability.79 The ethical code De Baets proposes, addresses, and theoretically conceptualizes subjects as the right to information, academic freedom, the right to truth and the obligation for historians to be critical, truthful, moral, and to disclose information.80
Conceptualizing ethics has been a predominantly American affair and is directly connected to the rise of public history. Many historians, academics, and to a lesser extent public historians worried about the possibility that public historians would become hired guns. There was a suspicion that historians would lower themselves to “Sell history?”81 When public historians formed the NCPH and the Public Historian commenced publishing, there were no ethical guidelines, except for those of each individual university, but these are general, non-specific guidelines, for all academics, and not just for historians.82 Historians who were looking for work in the public or private sector were thus confronted with employers who had certain expectations from their newly acquired employees. These were sometimes troublesome and the reluctance and inability of public historians to stand up to these demands has formed the basis on which some academic historians have uttered criticism against the whole public history movement. The need to be able to turn to a guidebook of ethical standards was urgent.83 Historian Karamanski gives a good introduction to the first codes of professional ethics. He finds them with the oral history association in 1968, the American Association of Museum in 1978 and the society of American Archivists in 1980.84 The first real code was made by the Californian Committee for the Promotion of History (CCPH) in 1984. It is a formal declaration of professional standards for conduct of public historians. They are minimal standards, but at least they offer a basic start for an ethical code. It had the goal to assist both public historians and their clients in carrying out their professional responsibilities in better mutual understanding.85