I thought that Big Tobacco had at least been vanquished in the courts, with multi-billion dollar settlements approved both in favor of the states and in class action suits brought by injured smokers or their surviving spouses. In the latter case, Big Tobacco is taking no prisoners, and seems to have developed a similar kind of winning strategy to the one that kept it safe from lawsuits from dying smokers for so long in the past: blame the smoker. The excerpt below reveals how little this industry, which continues to peddle disease and death, has really reformed.
Big Tobacco and the Historians
by JON WIENER
Published in the March 15, 2010 edition of The Nation.
Last summer Robert Proctor, a Stanford professor who studies the history of tobacco, was surprised to receive court papers accusing him of witness tampering and witness intimidation, along with a subpoena for his unfinished book manuscript. Then in January he got another subpoena, this one for three years of e-mails with a colleague, and also for his computer hard drive. Attorneys for R.J. Reynolds and Philip Morris USA are trying to get him barred from testifying in a Florida court as an expert witness on behalf of a smoker with cancer who is suing the companies.
Proctor hadn’t tampered with any witnesses; all he had done was e-mail a colleague at the University of Florida asking about grad students there who were doing research for Big Tobacco’s legal defense. But he’s had to hire his own lawyers and spend days in depositions, defending himself from the charges. He told me he had recently spent “sixteen hours under oath, twelve lawyers in a room overlooking San Francisco Bay, a million dollars spent on deposing me and going after these e-mails.”
There’s a reason Big Tobacco would like to keep Proctor out of the courtroom. He’s one of only two historians who currently testify on behalf of smokers with cancer–while forty historians have testified on behalf of the tobacco industry. In 1999 Proctor became the first historian to testify against Big Tobacco, and over the past ten years he has testified in fifteen cases. He’s published several books, including Cancer Wars: How Politics Shapes What We Know and Don’t Know (1995), and in his co-edited book, Agnotology: The Making and Unmaking of Ignorance (2008), he examines “the tobacco industry’s efforts to manufacture doubt about the hazards of smoking.” He’s also a fellow of the prestigious American Academy of Arts and Sciences.
The harassment of Proctor by Big Tobacco’s law firms reflects the new landscape of litigation over the health hazards of smoking. In the previous chapter of this long-running story, forty-six state attorneys general reached a master settlement of $246 billion with Big Tobacco in 1998 as compensation for states’ expenditures on cancer caused by tobacco. The next year the Clinton Justice Department filed a federal lawsuit, U.S. v. Philip Morris et al., which was decided in 2006 by Judge Gladys Kessler in federal district court in Washington. She ruled that for fifty years the tobacco companies had “lied, misrepresented and deceived the American public…about the devastating health effects of smoking.” In late February both sides asked the Supreme Court to review that case.
Meanwhile, plaintiffs’ attorneys were working on a national class-action suit, Engle v. R.J. Reynolds, on behalf of smokers with cancer. But the Court of Appeals for the Third Circuit limited the suit to Florida, where in 1999 jurors awarded smokers with cancer $145 billion, the largest punitive damage jury award in US history. In 2006 the Florida Supreme Court accepted the decision but dissolved the class and said each case had to be tried separately. As a result, there’s a lot of tobacco litigation going on in Florida right now–potentially 9,000 lawsuits. In one of the first of those “Engle progeny” cases, a Fort Lauderdale jury in November awarded Lucinda Naugle $300 million. Proctor is scheduled to testify in another.
In these cases, history has become a key component in the tobacco attorneys’ defense strategy. In the past, when smokers with cancer sued for damages, the companies said they shouldn’t have to pay, because there was a “scientific controversy” about whether smoking causes cancer. But in recent years they have given up that argument and now argue something like the opposite: “everybody knew” smoking causes cancer. So if you got cancer from smoking, it’s your own fault.
To persuade juries, they need historians–experts who, for example, can testify that newspapers in the plaintiff’s hometown ran articles about the health hazards of smoking in the 1940s or ’50s or ’60s, when he or she started. So Big Tobacco has been spending a lot of money hiring historians–and is stepping up the harassment of Proctor. …… [cut]
Forty historians have testified for Big Tobacco; only three have testified against–why the disparity? Two factors help explain it. First, the tobacco attorneys many years ago organized the recruitment of historians and coordinated the creation of a common body of research. Kyriakoudes wrote in his article for Tobacco Control that in 1984, “the industry’s law firms formed the Special Trial Issues Committee,” whose task, according to a memo to Brown and Williamson, was to develop witnesses who “will also explain” to juries that Americans’ decisions to smoke cigarettes were “wholly unrelated” to industry “promotion or coercion.” Plaintiffs’ attorneys, in contrast, typically work as single practitioners and thus can’t come close to matching the organization and coordination of the other side.
They also have nothing like the money Big Tobacco pays its law firms. The reasons were explained by Michael Piuze, the Los Angeles attorney who won the $28 billion verdict in the Bullock case. When it comes to the harm caused by smoking, he said, Big Tobacco is unique. “In most product liability litigation–auto manufacturing or pharmaceuticals–there may be one lawsuit for every 50,000 customers,” Piuze said. “But tobacco companies kill or seriously injure one in two of their customers.” (That is the standard scientific view, endorsed by the American Cancer Society and the World Health Organization.) Thus they can’t possibly pay for the damage they have caused. “So the industry decided in the 1950s on a scorched-earth litigation policy. They would never give up. Never settle. If they ever lost a case, they would appeal. Forever. That’s the way it still is. The message to the plaintiffs’ bar is clear: don’t screw with us, or you’ll be sorry. We will break you financially.”
“There are 38 million people who live in California, and there is one tobacco case pending in California,” says Piuze. “In the entire history of the state there have been eight tobacco trials. That’s one side of the ledger. On the other side, 37,000 people die of tobacco-related causes in California every year. That’s 100 every day. Have they been successful with their litigation strategy? You better believe it.”