Cancer, Chemicals and History
Rosner and Markowitz are part of a larger trend in which historians are appearing in court more often as expert witnesses. One reason is the growing number of cases in which companies are being accused of wrongdoing based on evidence that workers and consumers are suffering illness and disability because they were exposed to asbestos, lead, silica or other chemicals. In every case, the exposure began decades ago, and thus in every case, the central legal question is a historical one: When did the companies first learn of the health dangers posed by their products? At what point in the past can they be held responsible?
A second reason is a consequence of the failure of governmental regulatory agencies to act. Now, in an era of Republican domination, the Occupational Safety and Health Administration and the Environmental Protection Agency, originally created to protect the health of workers and the public, tend to be industry-dominated. As a result, the courts have become, in the words of Rosner and Markowitz, "one of the last venues where workers and communities might find some form of justice."
In the past, each side in corporate liability cases has presented experts who debated the evidence in the corporate documents. This case marks a new departure, because the strategy of the chemical companies is to charge the plaintiff's expert with unethical conduct. Will this ploy succeed? The logic of the argument is dubious: So what if some of the manuscript reviewers for Deceit and Denial knew the authors? What ought to decide the case are the facts about what the chemical companies knew about cancer and when they knew it. On the other hand, juries don't know much about publishing history books. It's possible that a jury could be convinced that something was wrong with a book whose manuscript reviewers didn't check footnotes, and with a publisher that did not maintain strict confidentiality in the manuscript review process.
Most of these corporate liability cases are settled before going to a jury, but the willingness of the companies to settle is based on their estimate of the persuasiveness of the witnesses against them and their guesses about the jury. This case, originally scheduled to go to trial in February, has been rescheduled for September.