Should Historians Be Working for the Tobacco Industry?





Mr. Proctor teaches in the Department of History, Pennsylvania State University, University Park. This article first appeared in the Lancet.

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Historians of medicine last year were shocked to learn that Kenneth Ludmerer, president of the American Association for the History of Medicine, has been quietly working as an expert witness for the tobacco industry since the late 1980s. In a deposition[1] submitted for his work as an expert witness in USA v Philip Morris Inc et al, the ongoing federal case against the industry, Ludmerer admits to having worked on at least thirteen separate trials over the past 15 years, always for the defence, earning over half a million US dollars.

Ludmerer is not the only historian who has served in this capacity.[2] From court records,[3] we know that at least 29 have witnessed for the industry, most often testifying that everyone has always known that cigarettes were dangerous, and that even after 1964 there was still “room for responsible disagreement”[4] with the US Surgeon General’s conclusion of that year that tobacco was a major cause of death and injury. Common knowledge and open controversy have long been the twin pillars of the industry’s defence, from which it is concluded that people have only themselves to blame for smoking-related harms and that the industry acted properly in denying any proof of a genuine hazard.

David Rothman,[5] Director of Columbia University’s Center for the Study of Science and Medicine, has recently argued that it is possible for historians to serve as expert witnesses without compromising professional integrity. Some historians have, however, presented inaccurate accounts of tobacco and health history in their capacity as witnesses for the tobacco industry. In his 2002 brief for the ongoing federal case, for example, Ludmerer[6] stated that there was “no credible scientific evidence linking cigarette smoking to lung cancer or any life-threatening disease before 1950”, ignoring both the pioneering epidemiological studies in Germany before this time and the lip, throat, and oral cancers discovered already in the 18th and 19th centuries.[7] Similarly Peter English,[8] in his expert report for Philip Morris et al in the same trial, stated that toxicologists discovered benzpyrene in tobacco smoke only in 1954, when the fact is that Roffo[9] had already made this identification in the 1930s. There is actually quite a sizeable literature on tobacco carcinogenesis before the 1950s.[7]

One reason slips of this sort might be expected from the industry’s experts is that they are almost always asked to testify in areas where they do not have a lot of peer-reviewed expertise. Ludmerer, for example, best known as a historian of medical education, has never published on the history of tobacco, on lung cancer, on the impact of tobacco on health, or on the industry’s claims about smoking and health. The same is true of other historians who have testified for the industry: Theodore A Wilson[10] is a military historian who is best known for his work on the Cold War; Elizabeth Cobbs-Hoffman[11] specialises in American foreign relations; Jon Harkness[12] writes on the history of clinical medical ethics, and Peter English[8] is a pediatrician who has also testified for the lead industry. Ludmerer defends (or explains) his record of nonpublication by stating that in the course of his 1000 hours of research for the industry he “didn’t learn anything new”.[1]

Among the many historians who have worked for the industry, John Burnham[13] of Ohio State University is one of the few to have actually published on the history of tobacco. Burnham was one of the original historians recruited by Philip Morris for its Project Cosmic (1987–93), the goal of which was to build “an extensive network of scientists and historians from all over the world”[14] to serve as paid consultants and/or project investigators for the company. David Harley of Oxford University and David Musto of Yale were among those recruited for this project, which resulted in several publications,[15],[16] none of which acknowledged the industry’s support. Musto alone by 1991 had received about $220 000 from Project Cosmic, with another $250 000 approved for his use.[17]

Industry use of historical expertise generally does not, however, involve deliberate falsification or fabrication, but rather what appears to be a careful selection (and omission) of facts. Were some scholars slow to accept the research of the 1950s showing a major health hazard from cigarettes? Of course—the industry’s favourites are the biostatistician R A Fisher and Joseph Berkson of the Mayo Clinic, both of whom are cited to buttress the idea that there was always “room for responsible disagreement”[4] with the tobacco hazards consensus. Did many people know cigarettes were dangerous? Of course they did, as we often hear from the long lists of such examples from the industry’s experts.[18] These seemingly carefully selected facts build up an impression of the industry as having acted responsibly in rejecting proof of tobacco’s harms until the late 1990s. Surely many people did know that cigarettes were harmful—but was this true of 12–13-year-olds just beginning to smoke? Did these children know that cigarettes could cause emphysema or pulmonary tumours? How many people even today know that cigarettes can cause blindness[19] and bladder cancer?[20]

For many years the industry claimed that the evidence linking tobacco and disease was weak or non-existent: epidemiology was mere statistics; animal experiments said nothing about humans; and pathological evidence was merely anecdotal. The industry is now hiring historians to assist in its defence, mainly by having its experts narrow their focus of attention to only those topics that show the industry in a favourable light. The industry’s lawyers have become adept at this art of obfuscation, directing jurors’ attentions to trivial or confusing issues that raise various forms of doubt—the key to victory in the US legal system and a long-standing goal of the industry (recall Brown and Williamson’s 1969 claim that “doubt is our product”[21]). There is a saying in American public-relations circles that for every PhD there is an equal and opposite PhD, but when big money is at stake, there appear to be asymmetries in what kind of expertise gets heard. The tobacco industry has usually been able to outspend its opponents, which can be seen even in the number of historians thus far arrayed in the tobacco trials. As of February, 2004, around 30 professional historians have testified for the defence in such cases, whereas only two have appeared on the stand for the plaintiffs (myself[22] in Ironworkers v Philip Morris and Louis Kyriakoudes[23] in Boerner v Brown & Williamson, though Allan Brandt is now preparing to testify in the Federal case). There are lessons here about the nature of historical truth—and bias—because historians may well believe they are in no way misrepresenting history by working for the industry. Ludmerer, for example, claims that the funding he has received has not influenced his testimony. Asked in deposition whether he believed that “the source of funding can ever influence scientific independence”, Ludmerer replied “I don't know” and that while there might be “an occasional instance” in the historical past, it would nonetheless be “an aberration”.[1] Ludmerer also admits, though, that at least some of his expert reports were not even drafted by himself but rather by the law firms representing the industry. Asked about his 2002 expert report for the defence in USA v Philip Morris, Ludmerer testified under oath: “I did not draft the original report. It was drafted for me to save me time . . . it reflects my views”.[1]

Historians who render expert advice to the tobacco industry are playing a dangerous game. The industry may not ask them to lie, but it may well ask them to confine their research to only such topics as will be useful in the industry’s defence. Historians are used to normalise the industry’s conduct, to make what happened seem naturally embedded in the context of its times. Historians are good at this; we like to situate, to complicate, to show how messy history can be.[1],[12] I am not suggesting that historians have deliberately misrepresented history; their usefulness to the industry lies more in what is not presented. They will never be asked to explore those areas of history that could show the industry in a disadvantageous light, and when asked on the stand what they might have to say about such topics (eg, the long record of claims of “no harms proven”), they usually respond that they have not researched that topic. They can honestly say they do not know. Peter English testified in USA v Philip Morris[24] that he had not reviewed tobacco industry documents apart from those shown to him in cases on which he has worked.

Tobacco and several other polluting industries have fostered a great deal of research by historians in recent years. Millions of dollars have been given to trace the history of lead, asbestos, and radiation, for instance—and some of this is no doubt good history. A question then arises: should historians wanting to publish some of these materials be allowed to do so without disclosing the source of their funding? Jon Harkness of the University of Minnesota has earned around $300 000 testifying for the tobacco industry; [11] David Sansing[25] of the University of Mississippi has earned more than $500 000 in eight different tobacco trials. If these scholars want to publish on this topic, should they be required to disclose their funding sources? I think it is remarkable that none of our leading journals of medical history—or history more generally—require disclosure of funding support for research or stakes in past or ongoing litigation. The American Medical Association in 1996 adopted an even stronger policy, urging scientific journals to reject for publication research funded by the tobacco industry.[26] Is it time for historians to consider some of these options?

I thank Josh Dunsby for alerting me to David Musto’s role in Project Cosmic. I have worked on several occasions as an expert witness in plaintiff’s lawsuits, including USA v Philip Morris Inc et al.

Related Links

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  • NOTES

    [1] Ludmerer K. Deposition in USA v Philip Morris Inc et al, filed with US
    District Court for District of Columbia, Civil Action #99-2496 (GK),
    Aug 8, 2002.
    [2] Maggi L. Bearing witness for tobacco. Am Prospect 2000; 11: http://
    www.prospect.org/print/V11/10/maggi-l.html (accessed Oct 1, 2003).
    [3] Tobacco Documents Online. http://tobaccodocuments.org/datta/
    about.php (accessed Dec 12, 2003).
    [4] Ludmerer K. Testimony in Boeken v Philip Morris. http://www.tobacco
    .neu.edu/box/BOEKENBox/Boeken%20Trial%20Transcript/5239-
    5292_051001AM_LudmererDirectCross.PDF (accessed Oct 1, 2003).
    [5] Rothman DJ. Serving Clio and client: the historian as expert witness.
    Bull Hist Med 2003; 77: 25–44.
    [6] Ludmerer K. Expert report filed with US District Court for District of
    Columbia in USA v Philip Morris Inc et al, Civil Action #99-2496
    (GK), Jan 30, 2002.
    [7] Proctor R. The Nazi war on cancer. Princeton: Princeton University
    Press, 1999.
    [8] English PC. Expert report filed with US District Court for District of
    Columbia in USA v Philip Morris Inc et al, Civil Action #99-2496
    (GK), Jan 30, 2002: 6.
    [9] Roffo AH. Krebserzeugende Tabakwirkung.
    Monatsschrift Krebsbekämpfung 1940; 8: 97–102.
    [10] Wilson TA. Deposition in USA v Philip Morris Inc et al filed with US
    District Court for District of Columbia, Civil Action #99-2496 (GK),
    Sept 4, 2002.
    [11] Cobbs-Hoffman E. Deposition in Boeken v Philip Morris Inc et al, Feb
    28, 2001: http://216.239.37.104/search?q=cache:4yY2rnLKsbAJ:www.
    tobacco.neu.edu/box/BOEKENBox/Boeken%2520Trial%2520Witness
    %2520Depo/_Hoffman_DEFH.PDF+“cobbs+hoffman”+vitae+publish
    ed&hl=en&ie=UTF-8) (accessed Oct 1, 2003).
    [12] Harkness D. Testimony in Boerner v. Brown & Williamson,
    #4:98CV00427JMM, May 15–16, 2003; 8: 1386-666.
    [13] Burnham J. Bad habits: drinking, smoking, taking drugs, gambling,
    sexual misbehavior, and swearing in American history. New York: NYU
    Press, 1993.
    [14] Chronology and development of Project Cosmic, Bates #2023919844;
    Project Cosmic, Bates #2040573257; searchable at http://www.
    pmdocs.com (accessed Oct 1, 2003).
    [15] Musto D. Opium, cocaine and marijuana in American history.
    Sci Am 1991: July: 40–47.
    [16] Harley D. The beginnings of the tobacco controversy. Bull Hist Med
    1993; 67: 28–50.
    [17] Project Cosmic. Budget/spending status, Bates #2023160927. Feb,
    1991: http://www.pmdocs.com (accessed Oct 1, 2003).
    [18] Wilson AT. Expert report filed with US District Court for District of
    Columbia in USA v Philip Morris Inc et al, Civil Action #99-2496
    (GK), Feb 1, 2002.
    [19] Klein R, Klein BE, Linton KL, DeMets DL. The Beaver Dam Eye
    Study: the relation of age-related maculopathy to smoking.
    Am J Epidemiol 1993; 137: 190–200.
    [20] Silverman DT, Hartge P, Morrison AS, Devesa SS. Epidemiology of
    bladder cancer. Hematol Oncol Clin 1992; 6: 1–24.
    [21] Glantz SA, Slade J, Bero LA, Hanauer P, Barnes DE. The cigarette
    papers. Berkeley: UC Press, 1996: 171.
    [22] Proctor R. Testimony in Ironworkers v. Philip Morris Inc et al, US
    District Court in Northern District of Ohio, Eastern Division, Civil
    Action, #1:97CV1422, Feb 26, 1999: 1340–60.
    [23] Kyriakoudes L. Testimony in Boerner v Brown & WiIliamson,
    #4:98CV00427JMM, May 9–12, 2003: 4–5.
    [24] English PC. Deposition in USA v. Philip Morris Inc et al, Civil Action
    #99-2496 (GK), Aug 26, 2002; 69.
    [25] Sansing D. Testimony in Boerner v Brown & WiIliamson,
    #4:98CV00427JMM, May 19, 2003; 10: 1767.
    [26] AMEDNEWS.COM. Tobacco-funded research. July 22, 1996:
    http://www.ama-assn.org/amednews/1996/amn_96/summ0722.htm
    (accessed April 5, 2004).


    This article was first published by the Lancet and is reprinted with permission of the author.


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    More Comments:


    Oscar Chamberlain - 3/24/2005

    John,

    This strikes me as good, and balanced, advice. We really do need expert witnesses who are people of integrity.

    On the more general topic of taking money from controversial industries, I think that the ethics depend on the circumstances. However, a scholar who, say, takes money from the tobacco industry to write a history of that industry should expect an extra level of scrutiny and, therefore, should take particular care in documenting his or her work.


    John H. Lederer - 3/22/2005

    The "be careful" when asked to be an expert witness is good advice."Never" is poor advice, I think.

    I have employed expert witnesses to testify in three major cases (two were finally decided in the U.S. Supreme Court).

    In all three cases we had to overcome a strong presumption in favor of the state -- a legislative determination of safety. We could not have done that without the help of true experts in their fields who testified honestly and completely.

    I believe that none of the witnesses ever felt they were pressured to say anything other than the complete and accurate truth. I had them testify on direct about the problems on our side.

    We did it that way because it was the only way we were confortable with and the only way we knew we could get the best people in the fields as witnesses. We also believed that the only way to gain the trust of a sceptical trial judge was to convince him that there was complete honesty on our side. Besides...in truth we lacked the skill to do it differently<g>

    Had those witnesses been unwilling to testify, people would still be being killed for a wrong headed view of safety that was more, rather than less, hazardous to the public.

    Have I seen lawyers twist experts in a smarmy (word of art) way? You bet. Have I seen expert witnesses that were smarmy. You bet.

    Does that mean that the courts should be deprived of science and expertise? No -- that would almost surely mean that decisions, some of which have great social import, would not be accurately reached. So I would encourage experts to testify, but make it clear to the lawyer who seeks your testimony that you will honor the oath you take as a witness and that you do not regard your self as being "on their side". You will lose the smarmy lawyers at that point.

    The Schiavo case is in the news. I am able to join a blogger in saying that I know almost nothing and despite that have no opinion. But I do hope that the courts have the guidance of truly expert and honest medical expert witnesses in their attempt to handle what seems a very difficult question.


    David T. Courtwright - 3/21/2005

    I got my call from one of the industry's lawyers sometime in the early 1990s. I explained that my area of expertise was narcotic drugs, not tobacco, and that I hadn't yet done much research on tobacco history. No problem, I was told: "We can help you develop your tobacco research." "How?" I said. "Well," he said, "we could provide money for you to hire research assistants, to help bring you up to speed in the field."

    The plural of "assistants" was not lost on me, nor the advantages of a private research staff. But I said no. It wasn't until years later, when I began my own independent research on the tobacco industry, that I understood the larger pattern of buying influence. The tobacco companies had become so wealthy that they could, for a fraction of their profits, purchase the best public relations operations in the world, and lavish money on political campaigns, art exhibits, sporting events, lobbyists, expert witnesses, and, of course, lawyers. Nobody was immune. Philip Morris and RJR paid for 90 percent of the funding of the ACLU's workplace privacy task force, which had employees' smoking rights on its agenda.

    I have also turned down requests from plantiffs' attorneys. I know from previous experience testifying on the constitutionality of federal drug laws that there is tremendous pressure to say only those things that will help "our guys." And that was in the context of pro bono work. When an expert is being paid, and paid well, the pressure to shade testimony is that much greater. My advice to historians considering serving as expert witnesses: be careful, because you may be walking into an ethical minefield.