United States v. Philip Morris et al.

FWO Fellow at Ghent University, Ghent, Belgium



In this chapter I discuss the role historians have played as expert judicial witnesses in the US landmark case US v. Philip Morris et al. For the first time, multiple tobacco industry experts were opposed by historians hired as expert witnesses by the plaintiff. I have researched the involvement of these historians in US v. Philip Morris et al., in a qualitative manner through a discourse analysis. The chapter goes over the court transcripts of the depositions of all five historians as well as the court testimony by Allan Brandt; that is, a direct-, cross-, and redirect-examination. The chapter ends with an ethical review of the involvement in US v. Philip Morris et al. of these five historians through the Code of Ethics for historians proposed by the Belgian historian Antoon De Baets.

Attorney: (…) Did you review any internal tobacco industry

documents in your review of the primary literature?

Kenneth Ludmerer: No, I didn’t. And this has to do with issues of setting boundaries.

Kenneth Ludmerer (Deposition in US v. Philip Morris et al. 2002.)

In this chapter I discuss the role historians have played as expert witnesses in the US landmark case US v. Philip Morris et al.1 In 1999, the DOJ filed a lawsuit against the tobacco companies under the provisions of the Racketeering Influenced and Corrupt Organizations Act. Under the RICO act, the DOJ wanted to procure punitive damages from the tobacco industry to recover costs made in the public health sector due to the treatment of tobacco-related diseases. The importance of this case is significant for the involvement of historians in tobacco litigation. For the first time, multiple industry experts would be opposed by historians hired as expert witnesses by the plaintiffs. One of those historians who testified for the plaintiffs was Robert Proctor. He was the first historian ever to testify for the plaintiffs in tobacco litigation. In 1998 he submitted his first expert report in tobacco-related litigation in Northwest Laborers-Employers Health & Security Trust Fund v. Philip Morris.2 In 1999, he had testified in Ironworkers v. Philip Morris.3 In US v. Philip Morris et al., Proctor was hired by the DOJ along with, and after a long period of convincing, Harvard historian Allan Brandt. The defence procured the services of three veteran industry experts: Peter English, Theodore Wilson, and Kenneth Ludmerer. The case was decided in 2006 when judge Kessler stated in a 1,653-page report that the tobacco industry had conspired against the American public and continued to sell their addictive and deadly product despite their knowledge of serious health hazards. Judge Kessler reaffirmed her judgment in 2012 after it had been appealed by the defence.

Historians played a central role in US v. Philip Morris et al. Two expert historians were recruited by the State: Allan M. Brandt and Robert N. Proctor. The latter is a professor of the history of science and professor of pulmonary and critical care medicine at Stanford University. The former is Amalie Moses Kass Professor of the history of medicine at Harvard University. The defence retained the services of historians Kenneth Ludmerer, Peter English, and Theodore Wilson. Both Ludmerer and English were historians as well as practicing physicians. I have researched the involvement of these historians in US v. Philip Morris et al. in a qualitative manner. I have analysed the court transcripts of the depositions of all five historians. The records of Brandt’s direct examination, cross-examination, and redirect, have also been researched for this chapter.4 All documents are retrievable on the database Legacy Tobacco Documents Library and further from Tobacco Documents Online, whose significance and value I discussed in the previous chapter. 5 I furthermore made use of the legal database Westlaw. Additionally, I have drawn from the personal account of Brandt’s trial experience, which he describes in the epilogue of his book. The epilogue is titled The Crime of the Century.6 Brandt’s book, The Cigarette Century, was a Pulitzer Prize finalist and gives a privileged and candid look behind the scenes of the trial.7 Proctor frequently discusses his work as an expert witness in tobacco litigation. 8 In addition, Proctor has published his work on the history of smoking and the tobacco industry in several books, amongst which Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition. 9 None of the defendants’ historians have published on their experiences in court.

14.1 Brandt’s Experience

Brandt was first contacted by attorneys of the defence, who sought answers on the tobacco controversy in the 1950s. Although only contacted by one lawyer for an appointment, Brandt was visited by “four or five” other attorneys at his Harvard office. Brandt writes that his initial answer to their questions was: that there was a scientific controversy, in other words, that there exists no scientific subject without any discussion or scepticism. This answer not surprisingly seemed to please his visitors. Yet when Brandt further elaborated on his answer and explained that the tobacco companies had helped in creating the controversy as a public-relations strategy and that any professional historian who would research the subject could not come to any other conclusion, the lawyers changed their attitude. “I never saw them again”, Brandt writes.10

Thereafter, Brandt was contacted by the plaintiffs. Richard Daynard and members of the plaintiff legal counsel wished that Brandt aided them in unmasking the “Big Lie” the tobacco industry had conjured up for decades. Brandt was at first sceptic about the changes of success in court. The tobacco companies’ legal strategy concentrated on the choice the individual had made to start smoking, allegedly knowing that it was not healthy to smoke. This argument was made in an attempt to eliminate the industry’s own negligence, or as Brandt called this strategy, “the industry’s traditional blame-the-victim defence.” Although Brandt’s own research confirmed the tobacco controversy had been created by the industry itself, Brandt declined each request for his expert services. Although sympathizing with the cause of the plaintiffs, he “saw no reason a historian’s perspective would carry much weight in the courtroom.” Brandt considered the adversarial context of the courtroom to be quite different from that of standard academic debate, and decided to lay out his research in the form of a book, thereby evading being called an “advocate.”11

In the 1990s, tobacco litigation was on the rise and the defendants increasingly called historians as expert witnesses. These historians testified on two major questions. The first issue was the scientific debate on the causal link between smoking and disease, whereas the second was about “common knowledge”, or in Brandt’s words “the argument that, despite the industry denials, everyone knew tobacco was harmful.” Brandt read these expert reports with “disgust at the way they radically distorted the historical record.” Historians who offered these testimonies had no background in the specific field. Brandt mentions historian Lacy Ford, who specialized in nineteenth-century Southern proslavery radicalism, testifying in tobacco litigation on tobacco science and the mass media in the 1950s.12

Brandt was visited for a second time by the plaintiffs, now concerning the cases brought against the industry by the state attorneys. Brandt politely refused again, worrying about the loss of control over his work and “the autonomy that historians so value to assure that their accounts of the past reflect complexity, subtlety, and nuance.” In 2002, Brandt was courted by another attorney of the DOJ Tobacco Litigation Team; Stephen Brody. Brody had brought the statements of Peter English and Kenneth Ludmerer with him. Both were historians as well as practicing physicians and had been recruited by the defence to serve as expert witnesses. Brody told Brandt to read the statements of Ludmerer and English before discussing Brandt’s potential role as an expert witness further. Brody’s tactic proved to be a suitable one to convince Brandt. As Brandt wrote: “I was, quite simply, astounded by their “expert statements.”” Both had never published or researched on tobacco. Furthermore, Brandt was “appalled by what they had written. I found their statements to be poorly researched, inaccurate in their historical assessments, and highly selective in the questions they raised.” Brandt accepted to participate in US v. Philip Morris et al., as an expert witness for the DOJ.13

For the next 2 years Brandt would be concentrating on the central questions of the case. In the first place, Brandt sought to rebut the arguments made by English and Ludmerer about the tobacco controversy and its resolution. Secondly, Brandt examined industry documents to determine “what the industry knew and when it knew it.” Instead of being as selective as Ludmerer and English, Brandt sought to be as comprehensive as possible.14

In August 2002, Brandt was deposed by defence counsel for 14 hours spread over 2 days. Central to Brandt’s argumentation to counter the “no proof” argument of the industry and similar statements by Ludmerer about the experimental standard of epidemiologic findings, was the fact that there was never a “single gold standard for proof of causality in medicine.”15 According to Brandt, the history of medicine showed that different combinations of causal explanations had been legion in the medical professions since the nineteenth century. Brandt writes: “I wanted to show that the industry claims of “not proven” were explicitly designed to serve the companies’ financial interests with reckless disregard for the health of their patrons and that this approach-“doubt is our product”-cost millions of lives.”16

Brandt testified on all these critical themes in court. “I understood that my claims would be subject to aggressive and hostile questions from the industry defence counsel”, Brandt notes. The night before his cross-examination, he met with JOD attorney Steve Brody to “review questions likely to come up in my cross-examination.” At the end of the meeting, Brandt was introduced to the head of the tobacco litigation team, Sharon Eubanks. She asked Brandt whether he understood what he was going to face during cross-examination. Brandt assured her that he realized that “the industry lawyers would try to make me look as bad as possible.” “No”, she responded. “That’s not it. They want to destroy you and leave you in a pool of blood.”17

The following day the defence attorney, David Bernick, “exhibited contempt and disdain for me and my testimony”, Brandt writes. At first, Brandt’s qualifications were discussed. The lawyer for the defence, David Bernick, portrayed Brandt as a partisan advocate who sought the prohibition of tobacco. After which, Bernick argued that Brandt’s research was one-sided and inadequate. Questions which deserved elaborate answers had to be answered with a simple “yes” or “no”. Brandt further reports that he “found my [his] time on the stand highly frustrating” and that “[a]s I [he] had anticipated, the courtroom was not the best forum for me to fully explain my conclusions.” The next day, Brandt was subjected to a brief redirect, in which he explained that the practices of the tobacco industry were “well outside the boundaries of American corporate practice.”18

The trial continued, but the newly appointed members in the DOJ by the Bush administration ordered the Tobacco Trial Team to reduce the government’s demands from $280 billion to $10 billion. Moreover, legal strategies by the DOJ were also softened. On the sudden shift in the government’s position, Judge Kessler noted: “perhaps it suggests that additional influences have been brought to bear on what the government’s case is.”19 Despite the doubtful commitment of the Bush administration to prosecute the case, the defendants were found guilty for violating the racketeering statutes by Judge Kessler in August 2006.20

14.2 Expert Historians Take the Stand

In what follows I present the results of an inquiry into the arguments used by historians in the case of US v. Philip Morris et al.. As mentioned earlier, I have read the depositions and the direct and redirect, and cross-examinations of Brandt. I have made a discourse analysis of these legal texts to determine which arguments these historians have used in court. The idea for this analysis has come from an article by legal scholar David Caudill who discussed “SociotechnicalArguments in Scientific Discourse: Expert Depositions in Tobacco Litigation. Caudill noted that “while one might expect technical arguments to play a central role” in litigation proceedings, “social, historical, economic, or philosophical arguments are coextensive with and constitutive of the ‘technical.’”21 Caudill writes that “social frameworks of explanation are associated with disclosing “bad science”, just as naturalistic frameworks of explanation are associated with “good science.”22 Caudill concludes that “scientific expertise in law is a rhetorical and social enterprise, not simply because it takes place in the rhetorical and social context of a legal dispute, but science itself is characterized by these inevitable aspects.”23 For Caudill: “all science (and not just bad science) [sic] is a hybrid of technical and social activities.”24 He came to those conclusions after researching depositions by chemists in tobacco-related trials. In conclusion, in my interpretation of Caudill, he defines sociotechnical arguments as “a combination of technical and extralegal rhetorical strategies.”

In this topic, I analysed the involvement of historians as expert witnesses during the fact-finding process and during the trial itself in US v. Philip Morris et al., by these three main questions; (1) Is the historical discipline itself attacked by lawyers? (2) In what manner have the lawyers tried to discredit the expert witness? (3) What kind of arguments are used, technical [historical arguments], formal, legal, or sociotechnical?

I will discuss every expert historian separately, according to the chronological order in which each deposition was taken, which is (1) Proctor, (2) Ludmerer, (3) Brandt, (4) English, and (5) Wilson. Each topic is constructed in the same manner. I start the discussion of each witness with general information on the witness. Thereafter, I analyse his deposition, and in the case of Brandt, also his direct examination, cross-examination, and redirect. Brandt’s deposition and testimony are discussed at length because they can be supplemented with his own reflections. The discussions of the depositions are illustrated with direct statements made by the witnesses and the lawyers involved in order to achieve an almost tangible example of the trial experience of an expert witness. All transcripts can be consulted via the LTDL database I discussed earlier.25 I also used the DATTA project as it offers expert reports [in this case only Proctor’s was made available online], exhibits, curricula vitae, direct and cross-examinations, and also redirects.26 Furthermore, I used the legal database Westlaw. This research makes a full reconstruction of the involvement of historians as expert witnesses in US v. Philip Morris et al. possible.

14.2.1 Robert Proctor

Robert Proctor is a professor of the history of science and professor of pulmonary and critical care medicine at Stanford University. He plays a central role in tobacco litigation as a frequent expert witness for the plaintiffs against the tobacco industry.27 He has specialized in the history of science and medicine during the twentieth century. In Golden Holocaust: Origins of the Cigarette Catastrophe and the Case for Abolition, Proctor manifests himself as a major opponent of the commercial production and distribution of cigarettes. The federal case was his third case for the plaintiffs in tobacco litigation. His first case was in Northwest Laborers-Employers Health & Security Trust Fund v. Philip Morris from 1998, in which he submitted an expert report. He is currently [fall 2014] active in Engle Progeny cases.28 Proctor has acknowledged he has made between $1,500,000 and $2,000,000 with his litigation related work. In part because tobacco companies are paying him to do depositions with their legal counsel to find out any weak spots in his research and testimony.29 Proctor has been active in 93 tobacco-related court cases.30 Proctor filed an expert report in US v. Philip Morris et al., which is the only report of any of the five historians who testified in this case that is available online.31 His deposition was the first of all five historians involved. Deposition

Proctor’s deposition was taken on the July 12, 2002 and took 1 day.32 The deposition started with the agreement on the main rules for the deposition, this is standard practice and is common procedure in all of the depositions discussed here. Douglas Smith, the attorney for the defendant Brown & Williamson Tobacco Company, questioned Proctor. Proctor was asked about the term Agnotology. Proctor had coined the term himself as the study of strategies to create ignorance, a strategy he attributed to the tobacco companies.33 Smith tried to portray the term as unknown in order to minimize Proctor’s intellectual relevance in his field. In order to stress that the idea is an unknown term, Smith asked Proctor to spell the term. Further questioning discredited the term by portraying it as an unpopular term. Proctor had written his book on Agnotology in 1992 and ten years later it had not been used by anyone else.

Q. What was that term that you used to refer to

the study of social structures that create doubt or

create ignorance in society?

A. The term I used was agnotology.

Q. And could you spell that please?

A. A-G-N-O-T-O-L-O-G-Y.

Q. And it — I think you testified that you

were the person that came up with that concept of


A. That’s correct.

Q. And when did you do that?

A. Probably around ten years ago.

Q. Okay. And since that time, how many

articles have been published on agnotology?

A. I don’t know of any that have used that word. 34

In the deposition Proctor was also pressed on his use of sources for his expert report. After a discussion on Whiggism, Smith tried to force Proctor to “admit” that he had used a lot of secondary sources instead of primary. As I have already discussed, the court dislikes the use of secondary sources by historians, while favouring the research of primary sources.35 The rationale behind this preference is that, according to the legal profession, secondary sources bias the historian, while the study of primary sources offers neutral facts to the historian.36

Q. (…) I’m sort of curious to see what you

could consider primary and second source for purposes

of the history that you’ve done here. 37

Although Proctor acknowledges he uses a lot of secondary sources, he defends his use of secondary sources. Moreover, Proctor seems remarkably at ease. See, for example, his reaction at the beginning of the following segment when Smith is not able to directly follow up on the questions on Whiggism. An explanation for Proctor’s self-confidence may be that Proctor has already done several other trials as an expert witness in addition to the two trials he had done for plaintiffs against the tobacco industry.38

Q. Well, is it possible that — well, let me

ask a different question than what I was going to ask

you. I’m not a historian by training, so it takes me

a few minutes to gather my thoughts.

A. That’s okay.

Q. Well, in your report, you rely — in some

instances you rely on — well, what I guess you would

call primary sources. But in most cases you rely on

secondary sources; is that correct?

A. I don’t think that is a fair

characterization. Again, if you — I’m not primarily

relying on what other people have said about the

past. I’ve tried insofar as possible to rely on

sources that are more primary, though it should be

said that the whole point of this thing, primary

sources and secondary sources is to guarantee

reliability. And sometimes you can rely upon a

secondary source if you think it’s trust worthy and if

you have no reason to think that it’s not trustworthy.

Q. How do you make the determination whether or

not a secondary source is biased or not?

A. I think that’s the art of being a

historian. It’s a process of judging contacts, of

judging capability. 39

Furthermore, Proctor was confronted with questions on funding he had received from government agencies.40 This line of questioning was an attack meant to question Proctor’s impartiality as a scholar. If Proctor’s research funding on tobacco came from federal government agencies, defence counsel could argue that Proctor received extra money from the plaintiffs to construct his witness report. Then Proctor could be accused of advocacy.

Q. So in total, you’ve received monetary

payments from four different agencies or entities

within the U.S. government?

A. That’s correct. Yes. Fortunately, the

national — the government is one of the ways a

scholar can get some funding.

Q. And you’re grateful for all the money that

You’ve been provided from the U.S. government; right?

A. That’s true. 41

The remainder of Proctor’s deposition discussed predominantly the sources of his testimony. The defence lawyers seemed keen on knowing if he used primary or secondary sources, but also whether he agreed with the figures on smoking-related diseases cited in those documents. Proctor was often asked if he had a specific document in front of him during the questioning, which was then added to the exhibit list of the deposition. Often, Smith asked Proctor if he could read a certain line from the document, which was followed with a question on Proctor’s interpretation of that statement. All of these documents could then be used during the trial itself in the event that Proctor would be put on the stand. Defence lawyers were looking for the sources Proctor had based his witness expert report on, in order to find something by which they could discredit Proctor’s expert report. Only in 28 instances was “objection” noted by the plaintiff’s attorney during the whole deposition, signifying a less polemic deposition than for example Brandt’s deposition.42 An errata sheet of 16 pages was added to the deposition, which details in length all the mistakes that were typed during the deposition.

I now discuss the three questions central to this qualitative analysis for Proctor’s deposition: (1) The historical discipline came under attack because of questions from the defence concerning secondary sources. Defence counsel clearly wanted to state for the record that Proctor was using a lot of secondary sources and that this reliance biased his work. (2) The only time Proctor comes under personal attack is when he is asked about his research funding. (3) The narrative used in this deposition is formal, not legal but technical. In order to avoid answering certain questions, Proctor “has forgotten”43 or “is uncertain”44 about a lot of things that seem relevant to his report or testimony. This is an example of a legal strategy which wishes to avoid that certain statements are added to the trial record and can thus be used afterwards against the witness. In this deposition Proctor proves to be very skilled in handling difficult questions from lawyers, whom he counters with what Caudill described as “sociotechnical” arguments.45 Robert Proctor’s Expert Report

Proctor remains the only historian working in tobacco litigation who has made his expert report public.46 Brandt, nor any of the expert witnesses’ of the defence have done so. It gives us a privileged look at essential parts of the historian’s expert testimony. The report itself starts with a general introduction on Proctor’s own expertise. The report lists Proctor’s opinions and elaborates further on them in a broader historical context. That historical context is based on research of advertisement in print as well as in other forms of media such radio and television ads. Articles of a scientific and non-scientific nature are also researched to discuss the common knowledge aspect of health hazards and smoking. In recent Engle Progeny litigation these journals, newspapers, periodicals and so on will focus on those who were available to the smoker. For instance, for a smoker who lived in Florida, mostly local newspapers will be researched not those from California. In this federal case, Proctor made a much broader analysis. As an expert for the plaintiffs Proctor has also researched a lot of internal industry documents in order to proof the construction of a scientific controversy by the industry. In his report Proctor devotes a lot of attention to the Frank Statement and the false promises the industry made in the statement.47 Proctor also engages in hypotheses on the rate of smokers that would have not taken up the habit if the industry had come clean from the moment they knew their product had been harmful. Proctor furthermore discusses the expert reports submitted by the experts for the defence. Proctor has considerable problems with the reports submitted by English, Ludmerer, and Wilson. The main issue he has with their reports is that, according to Proctor, they have downplayed the role of the industry in creating common and scientific knowledge on their product. The expert report by Proctor is extremely well-documented and has all the elements of a professional historical paper.

14.2.2 Kenneth Ludmerer

Ludmerer has degrees in history as well as in medicine. He is professor of the history of American medicine at Duke University. At the time of the trial, he was employed at Washington University. Ludmerer has published multiple books on American health and disease history of the twentieth century. Furthermore, Ludmerer has been president of the American Association of the History of Medicine. He has been one of the first historians to testify for the tobacco industry. In 1990, in Boston he took the stand in Kotler v. American Tobacco, an individual plaintiff’s case. As we shall see, his deposition in this federal trial unearthed more unknown ties between the tobacco industry and Ludmerer.48 Deposition

The deposition of Kenneth Ludmerer took 2 days and started at 8 a.m. on the seventh of August 2002.49 Ludmerer had already been deposed in at least 14 trials as a witness for the tobacco industry and that experience is visible during his deposition.50 The lawyer for the DOJ is Moltzen. The DOJ’s questions were met with counter questions by Ludmerer, which is rather unusual for a deposition. For example, directly from the start Ludmerer asks whether there were different rules for the deposition because it was being taped.51 His answers were much longer than those given by the other deposed historians in this case. His reactions to the DOJ’s questions show the strength of Ludmerer during his deposition. In normal circumstances the tactic of the deposing lawyer is to fatigue and enervate the deposed, in order to let the deposed expert make a mistake. In contrast, in this deposition Ludmerer tries to do the same with opposing counsel at the beginning of the deposition. For example, to the question whether he is an advocate or a historian, Ludmerer gives a two page answer, which is a very long answer in a deposition, since the deposed would normally try to limit his answers as much as possible.52 But Moltzen, the lawyer from the DOJ doing the deposition, seems to have wanted Ludmerer to feel at ease. After a short recess was taken just before 10 a.m., Moltzen attacked and asked Ludmerer who had written his expert report. Ludmerer admitted without further ado the following:

A. I participated in its preparation. I did not

actually draft the report. It was drafted by

individuals at one of the firms based on previous

testimony, previous conversations, previous

depositions. It was sent to me for editing so I

read it, approved it, it represents my views. I

did not physically compose it. 53

Moltzen continued his harder line of questioning and asked Ludmerer about his previous testimonies for the tobacco companies. In the 12 years before his deposition in US v. Philip Morris et al., Ludmerer had worked on 14 cases for the tobacco industry. In five he had delivered sworn testimony on the stand, in eight others he had been deposed, and in one other he had delivered an expert report.54 DOJ lawyer Moltzen asked Ludmerer about his previous work for the defendants.

Q. (…) I made up a list, it has been

marked as Deposition Exhibit 5. I am doing this

because I don’t want — this is not a memory game.

We don’t have to sit here and you try to remember

when and where.

A. I appreciate that, thank you.

Q. If this is incorrect, that’s fine. It is just as

a tool we can use. From the documents that your

attorneys sent me, these were the cases over the

last four years that you had either been deposed

in or had testified at trial. As you look over

that list, are there any errors there or are there

any additions?

A. We have a camera going, a videotape going so I

will try not to be too silent. We have one, two,

three, four, five, six, seven, eight, nine, 10, 10

events, four trials, six depositions. That looks

about right. It is pretty close.

Q. As we sit here you can’t think of any additional

cases that you were deposed in over the last four

years that come to mind right now?

A. Not that immediately come to mind. This looks

right. 55

Ludmerer forgot some cases. But the next day things got straightened out. A deposition earlier that year had been handed to Moltzen by the defence lawyers in order to make the record complete. The question was no longer how many in the past 4 years, but in his entire career.

Q. So now I believe we have all 14 cases to the best

of our knowledge?

A. To the best of our knowledge. That includes the

two cases from the early, I call it the early

period, and then 12 depositions or trials from

1997 through the present. 56

The DOJ had helped Ludmerer remember in how many cases he had testified. Still the number was, “to the best of our knowledge.” In fact, Ludmerer was still one case short off of the real number of 15 court cases he had been an expert witness in.57 Ludmerer stayed rather calm under these damaging examinations and said in response to the case he had forgotten the previous day: “If I did not recognize its absence from this list you showed me yesterday, then I apologize.”58 Clearly the witness was not really impressed by the questions of the DOJ. When asked if he had published anything on tobacco, he reacted as follows.

Q. Do any of your publications, the articles or the

books, deal directly with tobacco and health?

A. Can I tell you about my other article that was


Q. Of course you can.

A. I say this because someone stole and plagiarized it.

Q. Go ahead. 59

Ludmerer changes the question with seemingly no opposition from Moltzen. As in the previous example, Ludmerer seems to be enjoying himself rather than being pressed by the questions of plaintiff’s counsel. He is further asked about his medical license, possible disciplinary action, his own medical practice, and again about the fact that he has no publications on the subject of tobacco.60 Ludmerer is again very confident about his report.

Q. I will ask the question that I didn’t let you —

that I asked before you had finished your answer.

Do any of your publications, the three books or

the more than 30 articles, or even the book

reviews, deal directly with tobacco and health or

smoking and health?

MR. WOODS: Objection.

A. Not directly. Indirectly in the sense that they

deal with scientific knowledge and its evolution,

and both the concepts and techniques are pertinent

to understanding the subject of tobacco and

cigarette smoking and health but they were not

specific studies of cigarette smoking or health

related issues. 61

Similarly to the other witnesses for the defence, Ludmerer is convinced that smoking is a cause of cancer. He is equally sure that everyone knew those hazards since the Surgeon General’s Report of 1964. “That’s the common wisdom”, he remarks.62 After some lighter questions, Moltzen also asked questions on Ludmerer’s weakest characteristic. An issue which he has in common with all the experts of the defendants, namely, their conscious neglect to research internal documents of the tobacco industry. Those documents form an essential part of any historical research on the question: “When did they know it, and what did they know?”63 At first Ludmerer tries to evade the questions on the subject.

Q. And did you review any letters or correspondence

or memos that weren’t in the — that weren’t found

in some publication or another?

MR. WOODS: Objection.

A. I’m not certain I understand that question. Could

you rephrase that please?

Q. There might be some, let’s just say internal

correspondence in a company that never was meant

to be published but for one reason or another

might now have found its way into a book about the

tobacco industry, let’s say. So then I couldn’t

say to you did you only review literature that was

published because that would include those kind of

internal memorandums and letters.

MR. WOODS: Objection.

Q. Did you review any published letters and


MR. WOODS: Objection.

A. Are you referring from tobacco companies or in


Q. In general.

A. I think it would be fair to say that in the review

of the secondary literature, everything was

secondary, it was published. I don’t think anyone

looking at that list today would have any doubt

that that’s secondary literature. Now, any time a

historian is doing a book they are going to be

primarily quoting documents. So you can read,

using our example of President Lincoln, you can

read a biography of Lincoln and letters will be

quoted in that. 64

Ludmerer skilfully dodged the question on the neglect of the internal documents of the tobacco companies by bringing up the issues that courts generally have with primary and secondary sources, a subject Moltzen will be inclined to go into. The danger seemed to be adverted thanks to the objection of Mr. Woods, counsel for Lorillard Tobacco Company, and the rhetorical skills of Ludmerer. Yet Moltzen is giving his prey falls hope. Several hours later, Moltzen returns to the subject of the formerly secret files of the tobacco industry.

Q. (…) Did you review any internal tobacco industry

documents in your review of the primary


A. No, I didn’t. And this has to do with issues of

setting boundaries. Now that you mention this,

this is something that I would also like to be an

addendum to my response to your earlier question

of how historians do work. 65

After this small victory for plaintiff’s counsel, the rest of first day of the deposition was filled with hours of examining Ludmerer on several footnotes and documents used in his expert report. The following morning Moltzen continued his harder line of questioning and asks Ludmerer about the compensations the tobacco companies paid him for his work, and now Ludmerer seemed more frustrated and his lawyer less ad rem.

Q. How much do you charge per hour for your work?

A. As stated in the disclosure itself, $350 per hour.

Q. In addition to the $350 per hour, do you also have

any kind of daily charge when you are on travel or

do you still charge on an hourly basis?

A. If I’m away overnight, as we were yesterday,

instead of 24 hours I have a $3500 rate if I’m

overnight. 66

A few questions later Ludmerer is asked how much he has earned in total with his tobacco-related litigation-driven research:

Q. What is the total amount you have earned from

doing the tobacco litigation work to this date?

A. I would say somewhere between 500 and $550,000.

You mean from the very beginning?

Q. From the very beginning. 67

Ludmerer’s deposition reads as a kind of satire on historical research. Ludmerer had not reviewed any internal industrial documents, while making enormous amounts of money serving the tobacco companies as an expert witness. Furthermore, he plays games with Moltzen, posing counter-questions to him in turn, asking Moltzen to define words, and sometimes Ludmerer answers in full length, while sometimes limiting his answer to a single word. Clearly Ludmerer has adapted himself quite well to the legal environment and its strategies in a deposition.

Brandt was simply shocked that a man like Ludmerer, with such experience as a licensed physician and a historian of great professional stature, had been willing to offer “such misleading “opinions” on behalf of the industry in such an important litigation.”68 Brandt remarks that Ludmerer has no publications on tobacco history.69 Ludmerer himself had been a regular witness for the industry since 1990, although he had, as Brandt mentions, never researched any of the industry’s internal documents. In 1998, in Engle v. R.J. Reynolds Ludmerer had already admitted in court that he had never looked into a single internal document of the tobacco industry.70 In his book from 2012 Proctor wrote on Ludmerer “How could such a distinguished medical scholar have no opinion on what is arguably the most important medical fact of modernity? We don’t have to speculate; the fact is that Ludmerer was simply following the script drafted for him by his handlers.”71 In an article from 2010 by historian Jon Wiener which appeared in the Nation, Ludmerer was asked about his deposition in US v. Philip Morris et al. Ludmerer declared, “Where is civility in this country? These ad hominem attacks are injurious. I had coronary artery bypass surgery in 2005. I’m sure a lot of the disease came from tension from the comments people made about my testimony. I’ve never done anything other than serve the public interest.” He added: “I was hoping the tobacco industry would lose.” Wiener replied: “But then why did he testify for the industry? Ludmerer’s answer was: “I considered it honourable to stand up for doing history properly.”72 Consequentially, doing proper history for Ludmerer did not include researching the internal documents of the tobacco industry.

Now I return to the three questions initially asked in this qualitative analysis for Ludmerer’s deposition: (1) The historical discipline itself was not attacked by plaintiff’s counsel. Although Ludmerer himself tried to bring up the issue on secondary sources, Moltzen did not give the subject much attention. (2) Ludmerer was discredited on several fronts. A first line of questioning by Moltzen discussed the number of times Ludmerer had already testified; the fact that he “forgot” some cases did not elevate his standing as an impartial witness. Furthermore, Ludmerer was examined on the large salary the tobacco companies had paid him for his work as an expert witness. The idea behind these questions was to present Ludmerer as a hired gun. A last item Ludmerer was pressed on, was the fact that he had not analysed any internal documents of the tobacco industry. This is a very weak point with all the witnesses for the defence. The DOJ Tobacco Litigation Team made ample use of it as we shall see when I discuss the deposition given by Peter English and Theodore Wilson. (3) The discourse in this deposition is a rhetorical game between Moltzen and Ludmerer full off evasive answers and influenced by extralegal factors such as fatigue and irritation with the questions. Ludmerer’s testimony is a shocking example of how a historian can fully commit to the tactics of the tobacco industry. The next historian who was to be deposed was the defence’s second expert witness; Harvard professor Allan Brandt now faced his tribulations in court.

14.2.3 Allan Brandt

Allan Brandt is a professor of the history of science and Amelie Moses Kass professor of the history of medicine at Harvard. Brandt has published a multitude of major works on the social history of diseases. His most famous work is The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product that Defined America published in 2007. The book resulted from his research before and during the case US v. Philip Morris et al. This case is the only instance Brandt has testified as an expert witness.73 He has not made his expert report available in contrast to Proctor. Brandt’s role in the trial seems to have been that of a special expert witness, pivotal to the legal strategies of the DOJ. He was treated accordingly by the defence. Deposition

Brandt’s personal account has offered us an intimate look on the landmark case US v. Philip Morris et al. Now we turn to the trial transcripts to move on to the official and formal report of his involvement. I begin with his deposition which took place on August 15 and 16, 2002.74 The plaintiff’s attorney, Stephen Brody, was present to assist Brandt during the deposition. Attorney Douglas Smith, counsel for Brown and Williamson, questioned Brandt, while attorney Cindy Gantnier, legal counsel for Philip Morris, joined in via telephone. Smith had also deposed Proctor a month earlier. The deposition started at 8.58 a.m.. A first small discussion originated when Brandt refused to answer how many documents he cites in his reports. Despite multiple questions and rephrasing of those questions, Brandt eventually refused to guess.75 Thereafter, the defence counsel discussed his reasons for agreeing to become an expert witness for the plaintiff.76 A more theoretical discussion was opened when the lawyers questioned Brandt on his methods and the already familiar issue of the difference between primary and secondary sources.77 Furthermore, Brandt was questioned on another major returning theme in all depositions, namely, the question what constitutes common knowledge.78 Thereafter, Brandt is examined on the history of the tobacco controversy, which is interrupted by the break at 10 a.m., noon, and at 3 p.m..79 At one moment, Brandt was asked questions about his involvement in the Surgeon General Report of 2000. The following incident clearly shows how historians testifying against the tobacco industry also do not shrink from playing “a legal game.” At one instance Smith starts the sentence: “You know that you are under oath”, but he is cut short by Brandt, to prevent the record from showing such an intriguing question.

Q. And who did you deal with when you were working on

the 2000 report?

MR. BRODY: Objection.

A. I don’t even know. I don’t know.

Q. You don’t know who you were dealing with?

A. You know, I mean —

MR. BRODY: Objection.

A. You know, I got a letter from somebody, and I

answered it. And I don’t know who I– you know,

it wasn’t important.

Q. Well, did you have any telephone conversations?

A. No, I had no telephone contact.

Q. You know —

A. It was not extensive review. They have different

levels of peer reviewers in the process, I think,

and people who are really going to address a whole

chapter, and people who are sent a copy for

general review, that kind of thing. 80

Brandt was also confronted with questions from Smith whether he knew certain persons involved in tobacco litigation. After the 3 p.m. break, Brandt was questioned again on his expertise, wherein the defence lawyers tried to find multiple medical fields on which Brandt was not an expert, although, according to the defence’s counsel, those fields are in some way related to the scientific controversy: like neurosciences, pharmacology, and the science of nicotine. This line of questioning is shortly intersected with the question “if it’s unethical for the tobacco companies to be in the cigarette business?”81 The question was asked in order to brand Brandt as anti-capitalist. Hereafter, Brandt was asked whether he was an expert in certain fields of which the defence lawyer knew Brandt was not.82 The questions were aimed at making Brandt feel uncertain and to discredit his expert reports since he had no expertise in scientific fields that played a major role in the tobacco controversy. In general, Brandt does not seem impressed by Smith’s questions. For example:

Q. And you’ve also expressed the view that the

medical profession and the public have accepted

that smoking — that second-hand smoke is harmful?

A. I wish I had those things that you’re reading to

me in context, because I think they’re general

characterizations of something that, you know, you

or somebody read; and they don’t always seem to me

to sharply reflect what I would have written. You

know, they don’t sound like my language exactly.

So, if they are direct quotes, you know, it would

be good if they were identified as direct

quotations, and I had their sources.

If they’re general characterizations of

my writing, I sometimes find them, you know, a

percentage of degree, you know, shifted. And, so,

I’m uncomfortable agreeing with that, Did I write

that? You know, by whose characterization am I

writing? And if we had direct quotes, then I

would say, Yes, that’s in the piece. You know,

let’s read the whole paragraph or whatever it was

that really makes it clear.

Q. Well, sitting here today, can you remember if

You’ve written that the medical profession and the

public have accepted that second-hand smoke is


MR. BRODY: Objection.

A. I don’t think that’s — I don’t think that’s a

quotation from me exactly. 83

The deposition continued and discussed more of Brandt’s articles, the issue of nicotine, and the subject of safe cigarettes.84 Just before the end of the first day of the deposition at 5:50 p.m., Brandt was questioned on the book that he was writing, the contacts he used for this book, and again on his fields of expertise.85 The next day the debates were reopened with the same lawyers present. The first questions examined Brandt’s curriculum vitae with close scrutiny.86 Concerning the American Association for the History of Medicine Mr. Brody, counsel for the plaintiff and Brandt could not resist mocking opposing counsel:

Q. And is the American Association for the History of

Medicine a prestigious historical organization?

A. I don’t know if I would call it prestigious. I

would just say that’s the organization for this

relatively small group of professionals who work

in the history of medicine. You know, I don’t

think that people in the organization feel that

they derive considerable prestige from that.

Q. Well —

A. Anyone can join. You’d be welcome to join.

Q. Well, other than the American Association.

MR. BRODY: There goes any prestige. 87

The following hours were spent discussing Brandt’s expert-witness report, and several of his sources were reviewed and marked as exhibits for possible use in court. Defending council further examined the citations in his witness report.88 In addition, more questions were posed by Smith related to discussions on plagiarism, causality, and an article of Brandt’s that was not provided by the DOJ attorney to the defence.89 At the end of the deposition, Brandt was asked to state his opinion on the research of his colleagues, other researchers working on the same subject, and that of the other expert witnesses in the trial.90

In conclusion on this deposition, I come back to the three questions I posed at the beginning of this chapter: (1) The historical discipline is attacked in Brandt’s deposition on the manner by which it finds facts. Defence counsel wanted to make Brandt’s research methods seem inadequate for the courtroom. Smith also questioned Brandt on the issue of primary and secondary sources. (2) Brandt’s credibility as an expert is undermined by questioning him about whether he is an expert in certain medical fields that are discussed in his report, while demanding yes or no answers from Brandt. This line of questioning by Smith aims to make Brandt feel nervous, since he has to admit over a dozen times that he was no expert in fields like tobacco toxicology and growing tobacco.91 (3) The discourse in this deposition was formal. Questioning was seemingly at random, in order to confuse Brandt, who was considered inexperienced in this kind of legal examination. Brandt did his best to keep his nerves and limit his answers, responding often with “yes”,92 “no”,93 “I don’t”,94 “I do”,95 and other expletives like “I don’t recall” and “I do not remember.”96 Furthermore, Brandt said 1,181 times “you know” as an explicative on record in a 633-page transcript of his deposition. In other words, on almost every page, Brandt is quoted to have said “…, you know…”once or twice, with only two questions on most pages, that is quite a nervous tick. This rather innocent looking element of the deposition was an extralegal strategy. Brandt is an eloquent man, who has experience in teaching and public speaking. To my knowledge, Brandt shows no sign of this habit in any of his other interviews.97 It was a rhetorical strategy, designed to prolong answers in order to give Brandt more time to think on his answer and to slow the pace of the deposition. Brandt clearly used sociotechnical arguments to defend his report.98 Although Brandt had survived his deposition very well, the biggest test of his career as an expert witness awaited him 2 years later during trial testimony. The trial started its second week of proceedings, having started the September 21th 2004, when Allan Brandt was called to testify. Expert Testimony

On September 27th, 2004 at 1 p.m., historian Allan Brandt took the stand in the largest racketeering case the US had ever seen.99 Brandt was first formally accepted as an expert witness and submitted to direct testimony.100 Brody, the attorney from the DOJ who had recruited Brandt, questioned him on the development of the hypotheses on the causes of smoking-related diseases and the methodologies used by the field of medicine.101 The questions produced answers that fitted and stressed the arguments made by the DOJ’s legal strategy. Brandt’s real on-trial experience came with the cross-examination by attorney David Bernick, representing Brown and Williamson Tobacco Company. Bernick immediately set an aggressive tone with the following interaction between him and Brandt.

Q. All of them involve, at this point in time, knowledge of

a mechanism in the sense of the identification of a specific

infectious agent, correct?

A. Yes, but I think —

Q. I’m sorry, this is cross-examination.

Do they all involve today diseases where we have

identified a specific infectious agent?

A. Yes, they all involve diseases with specific infectious

agents, but I would distinguish that from saying that those —

Q. Excuse me. I didn’t ask you if it was distinguishable,

I’m sorry, Dr. Brandt, this is cross-examination, there will be

an opportunity for redirect at a certain point of time. It

would certainly facilitate the process if you listen to my

questions — I know you haven’t testified before in trial — and

try to focus on answering the question and I’ll do my best to be

clear. 102

By speaking to a Harvard professor like that, Bernic made one thing clear: Brandt had entered Bernic’s turf, and Brandt had to play by his rules.103 In a rather harsh tone, Brandt was questioned on his qualifications as an expert witness. Afterwards, Bernick concluded that Brandt had sacrificed principles of historical research to advocacy.104 He observed that objectivity was a problem for historians in court.105 Moreover, Bernick also discussed the actual witness report itself. He examined various subjects and documents, while frequently cutting Brandt off to remind him to limit his answer within the scope of the question. At one instance, Bernick rephrased a question which he had already posed several times. Brody objected to the question, and the court approved his objection, whereupon Bernick rephrased the question in a different manner. Brandt had had enough and could not refrain from a short moment of defiance.

Q. All the things that I’ve talked about — Hueper,

Rosenblatt, the dissension at NCI, Shimkin, Robins’ textbook and

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