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.