by Allan Brandt
But I had no interest in becoming an expert witness. I was pleased to exchange research notes with the likes of Daynard, Davis, and Wilner. My research and my commitments to public health led me to sympathize with their cause. And I had come to believe that in the face of failed attempts at substantive legislative controls, litigation offered an important strategy for reducing the harms of smoking. But I saw no reason why a historian’s perspective would carry much weight in a courtroom, where the combat scarcely resembles the staid academic debates I had become accustomed to. It would be best for me to present my work not in the adversarial context of tort litigation, but in the form of a book, where I could lay out my arguments in detail. I did not want my scholarship to be dismissed as “advocacy.” The lawyers could use my work as they saw fit. I did not want to become a combatant in the tobacco wars; I much preferred my role as a war correspondent and military historian.
As the litigation heated up in the mid-1990s, I continued to believe that my inclination to avoid the courtroom was correct. Yet I saw that tobacco industry defense counsel were increasingly calling historians as witnesses. Typically, these historians would testify on two questions with which I had become quite familiar: the scientific debates prior to the surgeon general’s report, and the idea of “common knowledge,” the argument that, despite industry denials, everyone knew tobacco was harmful. I read these testimonies with considerable interest—and professional disgust at the way they radically distorted the historical record. The historians offering these accounts had little or no background in the period in question, had done no work in the history of medicine or public health, and had no specific credentials to undertake research into the questions at hand. Some were even fairly distinguished in their particular fields. Lacy Ford, a well-known historian of early nineteenth-century southern proslavery radicalism, testified on behalf of the industry about public knowledge of tobacco science and the mass media in the 1950s, a subject and a period on which he had published no research at all. It seemed to me that it would not be difficult for plaintiffs’ attorneys to discredit such testimony. These industry witnesses had so selectively evaluated the evidence that their claims of widespread public understanding of the harms of smoking could be easily rebutted on cross-examination. Ford, for example, had not examined the massive industry promotion and advertising campaigns of the period in which he supposedly evaluated public knowledge of tobacco’s harms.12
As the collective cases brought by the state attorneys general got going, Ron Motley came to see me. He was, as virtually everyone has described, highly intelligent, persuasive, and charismatic. I was very impressed, even in this early stage of the litigation, by his knowledge of tobacco science and his command of the industry documents.3 But despite his generous appeal, I declined Motley’s offer to participate as an expert witness. I was aware of these cases’ legal and historical importance, but I worried about the loss of control over my work, the autonomy that historians so value to assure that their accounts of the past reflect complexity, subtlety, and nuance. I knew, generally, there is no room in the courtroom to qualify an argument offered on behalf of an adversary.
So when the Department of Justice contacted me in 2000, I invited the attorney to my office but had no intention of changing my now well-rehearsed position. But in 2002, an attorney from the DOJ came back for another visit. Stephen Brody, recently appointed deputy director of the Tobacco Litigation Team, was unlike the other attorneys I had met. Soft-spoken and equipped with a nearly photographic memory, he precisely laid out the basis of the government’s case against the major companies. The DOJ had begun investigating the tobacco industry for possible criminal violations shortly after the Waxman hearings in 1994, but a grand jury that heard testimony on perjury and other possible violations did not return any indictments. Nonetheless, Bill Clinton had announced in his State of the Union Address in 1999 that the DOJ would begin civil litigation against the companies to recover federal spending on tobacco-related diseases. The department’s initial filing later that year sought to recover Medicare funds but added civil Racketeering Influenced and Corrupt Organizations Act violations, for which the government could seek remedies to restrain unlawful activities on the part of the companies. Judge Gladys Kessler, who would hear the case in federal district court, ruled that the government could not recover Medicare costs but permitted the RICO action to proceed. 4 Although the RICO statute, passed in the early 1970s, had been designed to combat organized crime, it had been successfully used to force legal businesses that had engaged in racketeering and fraud to “disgorge” illegally gotten profits.5 The case against the companies, United States v. Philip Morris, would seek to recover an estimated $280 billion, the amount of industry profit the government estimated had come from illegal promotion and sales to minors over four decades.6 It was the largest civil litigation in the history of American law. As Brody explained it, the case would turn on the government’s ability to demonstrate that the industry had collectively participated as an “enterprise”—a conspiracy—to suppress and deny the known harms of smoking. He wanted to know what I had learned on this question.
I spent more than an hour reviewing my research in the John Hill manuscripts at the Wisconsin Historical Society, which document in such detail the fateful December 1953 meeting of the industry executives at the Plaza Hotel. I explained my ongoing research into the evolution of medical and scientific knowledge about the harms of smoking and the industry’s campaign to disrupt this consensus. Unlike so many of the attorneys with whom I had met, Brody seemed especially eager to hear my historical analysis of the emerging medical science, the evolution of the concept of proof in medical research, and the nature of the industry’s response.
Brody came armed with several filings in the case, expert statements by historians that the defense had submitted to the court. Unlike the materials I had read in previous cases, however, two of these statements were written by relatively distinguished colleagues in my small field of the history of medicine, Peter English and Kenneth Ludmerer, both of whom were not only expert historians but also practicing physicians. Brody invited me to read their statements before we talked further about my potential role as an expert in the case.7
I was, quite simply, astounded by their “expert statements.” First, I did not know that either one, both of whom I knew fairly well, had done any research on tobacco issues. Neither had ever published anything about cigarette smoking. They were certainly well aware of my own work, and I would have been pleased to discuss my findings with them. But more importantly, I 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. By asking narrow questions and responding to them with narrow research, they provided precisely the cover the industry sought.
“I have concluded, based upon my review of the literature, that there was no credible scientific evidence linking cigarette smoking to lung cancer or any life-threatening disease before 1950,” explained Ludmerer in his expert statement. Focusing on those scientists who were skeptical about the relationship of smoking and cancer, Ludmerer wrote that “these medical specialists were reluctant to accept causation when medical science had yet to identify anything in tobacco smoke that could account for its alleged cancer-causing activity.”8 But as Ludmerer knew, a number of carcinogens had already been isolated in smoke. They had been identified in industry laboratories as well, but Ludmerer had never looked at any industry documents. It turned out that since 1988, he had frequently served as a witness and consultant to the industry. Deposed in the Engle case he was asked:Let me make sure I understand. You have not reviewed even one single piece of internal research the tobacco industry did at any time; is that correct?
A. That is correct.9
In his DOJ statement, Ludmerer concluded that following the surgeon general’s report of 1964 “not everyone embraced the Report.” This was certainly true. He continued, “M
erely because a consensus had developed does not mean that people cannot legitimately disagree.” True again. But I was shocked to see someone of Ludmerer’s stature offering up such misleading “opinions” on behalf of the industry in such an important litigation. As historian Robert Proctor, who worked for the government on the DOJ case and appeared as an expert for plaintiffs in other tobacco litigation, would conclude, Ludmerer’s work on behalf of the industry bordered on “historical malpractice.”10 The industry “used to control the science,” commented Proctor, “and now they’re trying to control the history.” Ludmerer would later explain, “I gave the standard account of how we came to know cigarette smoking causes lung cancer.”11 In a deposition, when asked by a plaintiff ’s attorney, “So, as you sit here today in 1998, does cigarette smoking—in your opinion as a medical doctor, does cigarette smoking cause lung cancer?” Ludmerer replied, “I do not have an expert opinion on causation.”12
Later, Steve Brody explained to me that if the DOJ failed to rebut Ludmerer and English’s testimony with its own experts, the judge might be persuaded that medical historians accept the notion that there was no medical consensus and that the industry claims of “not proven” were legitimate. Although nearing the completion of this book, I put it aside to participate in the case. Over the next two years, I centered my attention on several questions central to the case. First, I prepared an expert statement to rebut Ludmerer’s and English’s conclusions about the tobacco controversy and its resolution, focusing on the evolution of medical and scientific knowledge and the development of consensus regarding the harms of smoking. Second, I examined what the industry knew and when it knew it. As we have seen, company scientists like Claude Teague, Alan Rodgman, Helmut Wakeham, and Thomas Osdene had documented the carcinogenic properties of tobacco smoke and reported their findings internally but were never allowed to publish them. At the same time, I reviewed what the industry was saying publicly in its masterfully dishonest spin campaign. I had never doubted that there was once a substantial controversy about smoking and health—in the 1950s and beyond—but I asked the questions that I believe any professional historian would ask: What was the nature of the controversy? What interests were represented? How had these interests worked to shape the debate? Where Ludmerer and English had been highly selective in the materials they reviewed and the questions they asked, I sought to be as comprehensive as possible.
After preparing my expert statement, I spent some fourteen hours over two days in August 2003 being deposed in the case by Douglas Smith, an attorney at Kirkland & Ellis. In the breaks between the questioning, Smith assured me that he wasn’t doing much work in tobacco litigation at the time. He told me he had enjoyed reading my work. I couldn’t tell whether he was trying to soften me up or seeking moral absolution. In my deposition, he asked me about my relationship with Ken Ludmerer, pointing out that Ludmerer was currently president of the American Association for the History of Medicine (AAHM). Was this a prestigious organization? I assured Smith that if he could come up with $70 a year for dues, the AAHM would welcome him as a member.
Judge Gladys Kessler, who presided over the trial, had ordered that all direct testimonies must be submitted in writing prior to a witness appearing in court. This would speed the trial, which was expected to be long and complex. As a result, expert witnesses like myself would appear for our cross-examinations, but would not have the typical courtroom opportunity to lay out in detail our qualifications and opinions with the help of friendly counsel. There was, however, one exception in this ruling. If a witness had a chart, or “demonstrative,” as part of their direct testimony, they would have up to an hour to explain it in the courtroom. I had prepared a simple chart of three overlapping rings as part of my description of the genesis of new medical and scientific knowledge. One circle represented clinical knowledge, another experimental knowledge, and the third, population-based knowledge. Under questioning from Brody, I was able to show how each of these areas had contributed to the development of new knowledge regarding the causes of disease in a series of examples ranging from James Lind’s investigations of scurvy in the eighteenth century to John Snow’s research on cholera in the nineteenth, to more recent work on HIV. Finally, I showed how emerging knowledge linking smoking to lung cancer in the late 1940s and early 1950s had drawn on each of the three domains. This was a crucial part of my testimony since the industry would argue that during the 1950s and 1960s there was “no proof ” that tobacco caused disease. As Ludmerer had claimed in his statement, “They [the scientists] held out for a higher standard of proof, one requiring experimental proof of causation.” I was eager to show that this so-called “experimental” standard—constructed by the industry and now sustained by its historical experts—was apocryphal. Contrary to Ludmerer’s assertion, there was never a single gold standard for proof of causality in medicine. Moreover, epidemiologic findings and population-based assessments had been used for centuries in evaluating causality. This was a question of considerable importance. Throughout the history of medicine, important public health actions have been taken on the basis of emerging clinical, population-based, and experimental evidence. Should John Snow have left the handle on the Broad Street Pump for thirty years until the organism causing cholera was identified under a microscope? Even then, questions about the organism’s virulence and infectivity would remain unsettled. Did it make sense to attempt to protect the blood supply prior to the identification of the human immunodeficiency virus? Does the doubt of a few scientists that HIV is the cause of AIDS mean that we should wait for “proof ”? 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.
My testimony focused on the state of knowledge in medicine in the 1950s and 1960s, the character of industry denials, and the intensive public relations activity in the area of industry-sponsored research—all critical themes of this book. I understood that my claims would be subject to aggressive and hostile questions from the industry defense counsel. On the night before my court appearance, I met with Steve Brody to review some of the questions likely to come up in my cross-examination. Just before I was about to return to my hotel room, Sharon Eubanks, the DOJ attorney who was directing the tobacco litigation team, stopped in to greet me. She asked me if I understood what would happen during the cross-examination. I assured her that I 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.”
The next day, I faced my principal interrogator, David Bernick of Kirkland & Ellis, for the first time. A notoriously fierce defense attorney, Bernick exhibited contempt and disdain for me and my testimony. He sought to establish several basic points. First, he spent a good deal of time on questions about my qualifications and interests in the case. He questioned my credentials (not an MD) and asserted that I was an advocate eager to destroy the industry and seek the prohibition of tobacco (positions I had never taken). I was there not as a historical expert, Bernick argued, but as a partisan activist against the companies. Second, Bernick hoped to show that my research had been inadequate and one-sided in that I had ignored the genuine and intense scientific controversy regarding smoking and disease in the 1950s. He would ask long and involved questions, all but testifying himself; at the end he would demand a yes or no answer from me. Was Harold Stewart, an NIH pathologist, a skeptic? Yes. Was his position unreasonable? It’s a simple yes or no question, he would exclaim. No. Bernick brandished such exchanges as if they proved his case and destroyed my testimony. I found my time on the stand highly frustrating.
His questions centered on the notion that there was indeed a substantial and legitimate scientific controversy, and that the government’s contention of industry conspiracy was therefore moot. How could there be a consp
iracy to deny “knowledge” that was not definitively known? Finally, Bernick attempted to rehabilitate the idea that the industry had been a good actor by sponsoring important peer-reviewed scientific research. We sparred on each of these points at considerable length. Hadn’t the industry sponsored scientific research to answer these very questions? Didn’t the industry want “good science”? Yes, I answered, as long as it was not relevant to smoking and health.
As I had anticipated, the courtroom was not the best forum for me to fully explain my conclusions. After my first day on the stand, I had returned to my room to check the online media coverage of the trial. To my disappointment, there wasn’t much. But one brief article from the Reuters news service noted that I had been forced to “concede” that there had been a controversy. Of course there had been a controversy; the point of my testimony was that it had been fundamentally shaped by the PR campaign of the industry. I was, however, pleased to read that I had been “unapologetic” in my assessment that the tobacco companies were a “rogue” industry.13
In a brief redirect, at the end of a second grueling day on the stand, Brody asked me why I considered tobacco a “rogue” industry. I explained that when an industry knows it is producing a dangerous and deadly product but denies these harms for decades, all the while vigorously promoting the product, it is well outside the boundaries of American corporate practice. On this note, much relieved and a bit bruised, I was permitted to leave the stand.