Big Tobacco and the Historians
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.
The charges of witness tampering and witness harassment concerned history grad students at the University of Florida who had been hired to do research for Big Tobacco by Gregg Michel, a historian at the University of Texas, San Antonio. Proctor learned about the grad students from Michel's deposition. (Michel did not respond to requests for an interview.) "I e-mailed a colleague at the University of Florida asking about this," Proctor said--Betty Smocovitis, a historian of science. "She wrote back and said she was horrified. Said it couldn't be true. Then she found that it was."
The next thing Proctor knew, tobacco attorneys were telling a court in Florida last June that Proctor, simply by e-mailing his colleague, had engaged in an "unethical" campaign of "intimidation," seeking "to malign and harass graduate students who serve as research assistants." As a result, one of the students who had been asked by the department chair about the job had "voiced doubts whether she should continue working" for Big Tobacco. Proctor's e-mail, they told the court, therefore constituted an "improper" effort to "influence, interfere or intimidate" a witness for the defendants.
They also subpoenaed Smocovitis, hoping to get her to say that Proctor had been threatening to "out" the grad students in question. At her deposition, she told me, she told tobacco attorneys that "Robert Proctor never said he would name names, and I don't believe he ever intended to. He's not out to get grad students." She recalled that during a break in her deposition, when the tobacco attorneys "saw they were not getting what they wanted from me about Proctor, they screamed across the table, 'We're going to get him. He's never going to testify again!'"
In the end, the judge ordered Proctor to hand over the e-mails--all ten of them. Nothing improper was found, no witness tampering or intimidation, and the tobacco attorneys dropped the issue--for a while.
In August, when attorneys for R.J. Reynolds subpoenaed Proctor's unpublished work-in-progress, a history of global tobacco, The Chronicle of Higher Education said the subpoena had "major implications for scholars and publishers." Ordinarily litigants are entitled to have everything relevant to prepare their case, and the tobacco attorneys said they needed Proctor's manuscript. Proctor replied that forcing him to release his unfinished manuscript would violate his academic freedom, his privacy rights and his freedom of speech. The Florida court agreed with him in a November ruling; the judge held that an author has a constitutional right to choose when and where his writings are published. (In that ruling the judge cited a 1985 Supreme Court ruling that Harper & Row's right to control publication of Gerald Ford's memoirs superseded the First Amendment right of a magazine to publish excerpts without authorization--the loser in that case was The Nation.) But the fact remains that Proctor was forced by R.J. Reynolds attorneys to spend time and money fighting harassment-by-subpoena.
And it's not over yet, according to the plaintiffs' attorney, William Ogle. If R.J. Reynolds loses a jury verdict in the trial at which Proctor will testify, the company will almost certainly appeal, on the grounds that it should have been given the book manuscript. "So the issue will be litigated again in the court of appeals," Ogle said. "Then they could take it to the Supreme Court of Florida, and to the US Supreme Court." And since cases are being argued all over the state, "they could raise it again in Daytona Beach, Tampa, Fort Lauderdale or Miami--anywhere Proctor is scheduled to testify."
The same legal filing that accused Proctor of witness tampering also argued that he had "already caused a mistrial...by gratuitously injecting...racial slurs into his testimony to impugn defendants." That's another example of the tactics practiced by tobacco lawyers. Proctor was the leadoff witness in the first of the "Engle progeny" cases in Florida, the follow-up to the class-action suit with the $145 billion verdict. On the stand Proctor began to explain racism in tobacco marketing. He started to say that the companies had marketed products called Nigger-Head Tobacco and Nigger-Hair Tobacco--brands that existed as late as the 1960s. But a Philip Morris attorney, objecting that Proctor had injected racial slurs into the courtroom, demanded a mistrial--and got it. The judge ruled that Proctor's utterance of those words was "prejudicial."
If Proctor had been found to have engaged in witness tampering or witness intimidation in the case of the Florida grad students, he would probably not work again as an expert witness. Then there would be only one historian left who testifies against Big Tobacco: Louis Kyriakoudes.