Big Tobacco and the Historians
A centerpiece of Big Tobacco's defense strategy is the argument that smoking is voluntary, and thus it's your own fault if you get cancer. That neglects the problem that nicotine is addictive, and poses another issue for historians--what did the tobacco companies know about addiction, and when did they know it? As Brandt's book documents, the companies knew that nicotine was described as addictive by many scholars in the 1940s. Nicotine creates a physical dependency; trying to quit leads to classic symptoms of withdrawal, including anxiety, depression and craving for the missing chemical. But the tobacco companies denied that smoking was addictive. When teens started smoking in the 1950s and '60s--the people now dying of lung cancer who are suing Big Tobacco--they didn't make an informed choice based on knowledge of nicotine addiction. And later, when they had trouble quitting, many followed the advice of the companies and switched to "lite," "low tar" or filter cigarettes--which are also hazardous.
Given the deception practiced by Big Tobacco, how are the historians who work for tobacco attorneys able to blame the smokers? As they admit under cross-examination by plaintiffs' attorneys, in their "research," they fail to examine the most important source of information on the history of smoking: the archives of the tobacco manufacturers and their public relations firms, which are readily available online at tobaccodocuments.org, as required by the 1998 settlement in the state attorneys general lawsuit. These materials document industry efforts to suppress information about cancer and smoking and, in Kyriakoudes's words, to "secretly sponsor disinformation."
In a major research paper published in the international peer-reviewed journal Tobacco Control, Kyriakoudes examined the testimony of eighteen experts in twenty-seven trials. He found that the tobacco companies' historians "present a history of the cigarette in which the tobacco industry all but ceases to exist." Research in archives is the hallmark of historical scholarship. The court testimony of Lacy Ford, James Kirby Martin and Michael Schaller, along with that of Nixon biographer Joan Hoff of Montana State, Southern historian Robert Jeff Norrell of the University of Tennessee, Knoxville, and the rest, Kyriakoudes concluded, "fails to meet basic professional standards of scholarship."
Of course, some historians have refused to work for Big Tobacco, on the grounds of those same scholarly standards. One is Richard Abrams of the University of California, Berkeley, an expert on government-business relations. He said that when tobacco attorneys from the firm Arnold & Porter approached him fifteen years ago, "I told them that tentatively I was sympathetic to their position for the post-1965 period, but I wasn't sure about before that--so I needed to get into their records to see what they were telling the public. They said, 'You can't see our archive, but we'll send you stuff.' I said, 'If you're going to put me on the stand as an expert witness, I can't say I had access only to what you chose to send me.' They still wouldn't let me see their archives, so I said forget it."
Why, over the past fifteen years, have forty historians wanted to help Big Tobacco? I asked a dozen historians on Kyriakoudes's and Proctor's lists. Virtually all declined to be interviewed, including Otis Graham, emeritus at the University of California, Santa Barbara; Elizabeth Cobbs Hoffman of San Diego State; and Terry Parssinen of the University of Tampa, who was Big Tobacco's expert in the recent Fort Lauderdale case where the jury awarded the smoker with cancer $300 million.
Michael Parrish of the University of California, San Diego, did agree to talk about it. He said he had worked on five cases, the last in 2003, and isn't doing it anymore. "For doing research, I charged $110 an hour," he told me. "If I was deposed, it was $250 an hour. If it went to trial, $400 an hour. I didn't do it out of love for the tobacco industry." But, he added, he hadn't done it just for the money: "I was a smoker for twenty years and quit. I felt there had to be a little more personal responsibility there, instead of [plaintiffs] putting all the blame on the tobacco companies."
But money seems to be the main inducement--at least that was the pitch when Michael Schaller invited me to work as an expert for the tobacco companies in 2005. He called it "a lucrative consulting opportunity." (I declined.)
Historians earn big money working for Big Tobacco: Stephen Ambrose, who taught at the University of New Orleans and was famous for writing bestsellers about D-Day, Lewis and Clark, and Eisenhower as a World War II general, was asked in a deposition why he was testifying for the companies. His answer was brief: "for compensation." Tobacco companies paid him $25,000 for just one case in 1994, according to Laura Maggi in The American Prospect. (Ambrose, a smoker, died of lung cancer in 2002, when he was 66.)
But don't plaintiffs' attorneys also have big money to hire their own historian experts? The jury award in California's Bullock case, for example, was $28 billion. Proctor told me he has made an average of about $40,000 a year over the twelve years he has worked as an expert witness. Kyriakoudes told me he made $75,000 last year. "I testified in seven trials, all in Florida," he said.
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."