FWO Fellow at Ghent University, Ghent, Belgium
In this part of the book I present my research on the involvement of historians as expert judicial witnesses in tobacco litigation in the American legal system. I have made a quantitative and qualitative analysis which has allowed me to give a broad overview of those historians involved. With historians testifying for the tobacco industry remaining silent about their involvement while making hundreds of thousands of dollars through delivering doubtful historical research on the actions committed by the tobacco companies which Judge Kessler described as over the course of more than 50 years, Defendants lied, misrepresented, and deceived the American public; forensic history in tobacco litigation remains a controversial practice.
… over the course of more than 50 years, Defendants
lied, misrepresented, and deceived the American
public, including smokers and the young people they
avidly sought as “replacement smokers,”
about the devastating health effects of smoking and
environmental tobacco smoke …
Judge Gladys Kessler (2006)
In this third part of the book, I combine the conclusions of the previous parts of this book on historians as expert judicial witnesses with a case study of historians who have participated in tobacco litigation in the US. This third part aims to give an elaborate overview of that interaction between law and history based on four fundamental questions: (1) What did historians testify about in court? (2) When have historians testified in court? (3) How did they testify? (4) Who were these historians? To find the answers to these questions, I have conducted a quantitative and a qualitative analysis of the involvement of professional historians in tobacco litigation. My research is furthermore informed by an extensive read of the literature on the history of tobacco litigation and an examination of personal accounts of historians involved in tobacco trials.
The quantitative analysis has been based on earlier lists detailing the involvement of historians in tobacco litigation made by the historians Robert Proctor and Luis Kyriakoudes. I have updated these lists with more information on the historians as well as on their activities for the tobacco industry. This quantitative analysis has resulted in an overview of 50 historians in 314 cases.1 Furthermore, I have compiled 50 expert witness profiles which offer a short overview of these historians and their activity in tobacco litigation, with direct links to their own websites.2 This overview has been placed online with the aspiration of ensuring more transparency in tobacco litigation and debate amongst legal scholars and historians on the subject.3 The qualitative analysis examines how historians testify in court. I have studied the trial records of the landmark case US v. Philip Morris et al. from 2002 in which five historians testified as expert witnesses. Two historians testified for the United States Government and three came to court in the service of the defence, the tobacco industry. I have made a discourse analysis of this case. I discuss in the following paragraphs how I have addressed each of the four questions mentioned above.
The first three chapters present the history of the cigarette and the tobacco industry. These chapters have been based on works that are in part the product of litigation-driven history: The Cigarette Century by Allan Brandt and Golden Holocaust by Robert Proctor. Both authors have worked as expert witnesses in US v. Philip Morris et al. These books are examples of very well-documented and thorough historical research. Historians such as Brandt and Proctor have researched the history of the tobacco industry and its product through internal industry documents-which have become available as a result of tobacco litigation-, marketing ads in movies, television series, other forms of product placement, radio ads, billboard ads, ads in newspapers and magazines. Brandt and Proctor have also researched medical and scientific journals from the 1890s onward to determine when the scientific community was convinced of the moral health hazards of smoking. Furthermore, by researching the secret documents of the industry, historians have uncovered in great detail how tobacco companies created a controversy which polluted the scientific community with studies paid for by the industry that claimed more research was needed to determine if smoking was linked to disease. Moreover, the tobacco companies continued to aggressively market their product as a desirable commodity, while the industry itself knew far better than anyone else how dangerous smoking was. Historians also uncovered how, through lobbying, the industry evaded regulation and government oversight.
On these subjects, expert historians have testified and are testifying in court. Those historical arguments make up the core of tobacco litigation, because if the tobacco companies had committed a fraud against the American public, then they were negligent in the deaths of hundreds of thousands of smokers. Experts deliver expert reports to the courts on their research of the history of tobacco. These reports are almost never published nor made available for other researchers. In tobacco litigation, I have not found any expert except Proctor who has made one of his expert reports available online.4 Due to the lack of available expert reports, I have deemed it wise to present the history of the tobacco industry and their product in these first chapters in order to enable the reader to get a sense of the factual and historical aspects of the expert reports. Depositions and the actual testimony on trial also engages in discussion on factual elements of the report, but all in all these are limited to the controversial parts which we will discuss at length in the following chapters. Chapter 10 discusses the rise of the cigarette as a socially accepted product, detailing seven key developments. Chapter 11 examines the scientific discovery of the health hazards of smoking from the 1930s onward. Chapter 12 reports how the tobacco industry created a “scientific controversy” about the dangers of smoking, while unrelentingly promoting their product as safe and fashionable and lobbying politicians in Washington to avoid any regulation of their product.
After having established what historians testify about, I go into the three consecutive waves of tobacco litigation in which historians have been active. From the early 1950s, smokers sued the tobacco companies in order to retrieve compensation for the cost of their treatments for tobacco-related disease. Only by the end of the 1980s were the first historians hired as expert witnesses. There are three waves of tobacco litigation. The first wave, from 1950 to 1994, comprises 800 individuals suits filed against the tobacco industry, without a single final ruling in favour of the plaintiffs. A second wave started when, in 1994, the attorney generals of Mississippi and Minnesota decided to sue the tobacco companies for the costs which their states had made in treating tobacco-related diseases. These cases eventually settled in 1998 with what is known as the Master Settlement Agreement (MSA). The American Federal Government also sued the tobacco industry for similar reasons in 1999. This is the federal landmark case US v. Philip Morris et al