In 1994, before book after book documented how the tobacco industry had successfully manipulated the public's perceptions about smoking, the eminent historian and author Stephen E. Ambrose took the stand in a Louisiana case brought by Gere Covert, a Baton Rouge attorney who decided to sue after the death of his wife, a longtime smoker, from lung cancer. Testifying for the big four tobacco companies and their lobbying arm, Ambrose hammered home the industry's line: The risks of smoking have been known for decades if not centuries, so smokers who got sick made a knowing choice.
Ambrose spun a compelling narrative, arguing that since Columbus first plucked tobacco from the Indians the public has had a sense that smoking can't possibly be healthy. For proof he cited the nineteenth-century anti-tobacco temperance movements, old slang like "coffin nails" and "cancer sticks," and the abundance of news stories printed in the 1950s and 1960s as scientists began to accumulate data powerfully suggesting a link between cigarettes and lung cancer. Asked by the tobacco attorney what the public awareness of the health risks of smoking was in the 20 years prior to 1966, when warning labels first went on cigarette packs, Ambrose said, "When the warning went on the labels, you would have to have been deaf and blind not to have known that already in the United States." The jury found for the tobacco companies.
Ambrose, of course, was paid (handsomely) by the tobacco industry. And he is not the only outside witness to testify for tobacco. Others include not just tobacco's natural ideological allies, but such liberal social scientists as Theodore R. Marmor, a Yale-based advocate of universal health insurance (and occasional writer for this magazine), and the distinguished medical historian Kenneth M. Ludmerer of Washington University in St. Louis. Like Ambrose, neither Ludmerer nor Marmor is known as an expert on tobacco. Ludmerer was unhappy that the Prospect is identifying him as an expert witness for the industry and was reluctant to be interviewed on the record. Marmor expressed indignation at what he termed "moralistic bullshit." These two men are highly critical in other contexts of for-profit industries that affect the nation's health. So it is a little startling to find them in Big Tobacco's corner.
Arguing Both Sides of the Question
Supposedly expert testimony is used by the tobacco industry in most tobacco lawsuits to describe what a health menace tobacco was widely considered to be--although in other settings, the industry, with the exception of the Liggett Group, still disputes this characterization. Indeed, the industry itself has spent billions of dollars to keep the public from learning just how harmful tobacco is. So if everybody should have known that cigarette smoking was bad for one's health, it was only because the industry had failed to convince the public otherwise.
In the first half of the twentieth century, ads even touted supposed health benefits. Cigarette brands claimed doctor endorsements. Old Gold promised "not a cough in a carload." As studies indicating a connection between smoking and lung cancer began to be widely publicized in the early 1950s, the industry's misinformation campaign challenged research findings and did what it could to suppress them, well past 1964, when the first surgeon general's report concluded smoking could lead to lung cancer and that cigarettes were habit forming.
In 1954 the industry put out its now infamous "Frank Statement," an advertisement in hundreds of newspapers, in which the industry vowed to get to the bottom of the cancer question, establishing a committee to sponsor research. But tobacco-sponsored research was anything but independent, and the industry kept insisting that any hypothetical links between smoking and disease were unproven. The industry pressured newspapers and networks who took advertising dollars not to run editorial material on smoking and health. It eventually supported weakened health warnings only as a pre-emptive strategy against future lawsuits. Even to this day, while tobacco executives repeatedly argue at trial that smokers knew the risks, they continue to dispute that smoking causes cancer.
However, it is becoming increasingly clear that cigarette companies knew much more than they let on. Years of litigation and the occasional whistle-blower have unearthed thousands of previously undisclosed internal documents that are now being effectively used in anti-tobacco litigation. But despite mounting evidence of the industry's half-century cover-up, the tactic of insisting that "everyone knew" continues to sway juries. Here the role of the supposed independent expert witness is crucial. To win cases against tobacco, plaintiffs' attorneys must persuade jurors to forget what they know now about smoking and imagine how people viewed smoking in the 1950s, when smokers took up the habit, probably as teenagers. "People have a hard time remembering 50 years ago, 30 years ago, or 20 years ago," said Stanton Glantz, an antismoking crusader and medical school professor at the University of California at San Francisco. "The important fact, which is complicated for people to grasp, is that the tobacco companies are really good at twisting around common knowledge." When told by a well-credentialed academic that things were pretty much clear-cut, it can be hard for juries to keep in mind that even as articles began to appear in magazines about the dangers of smoking, the mind-set of people absorbing that information would have been drastically different from that of readers today.
It's not surprising that scientists and marketing experts in the direct employ of the tobacco companies draw conclusions as the industry wishes them to. There are also independent conservative academics whose own world view is consistent with the industry's point of view. For example, there are academics who argue that smokers who die prematurely from lung cancer are actually doing the health system a favor because on average they save medical costs that would have been incurred had they lived to a ripe old age; hence there is no logic to health system litigation against tobacco companies. Members of the law and economics school, such as Harvard Law School economist W. Kip Viscusi, insist that most risks are by definition freely incurred and often overstated. These scholars are principled allies of the tobacco industry, if one can use such a phrase.
More surprising, however, are genuinely independent scholars with no ideological or methodological ax to grind who testify on the side of Big Tobacco. Their value is suggested by the fees they can command. Historians who have testified for tobacco typically have said at trial that they received between $25,000 and $80,000. In the 1994 case, for example, Ambrose said he received about $25,000 for his work, while his research assistants made around $20,000. Ambrose, who did not return phone calls for this article, was asked in a 1997 deposition for the state of Florida case why he was testifying for the defendants. Ambrose replied, "For compensation." The attorney followed up, "So the reason you have agreed to provide the services is for the money?" The answer? "Yes."
Expertise for Hire
What is also suspicious is the similarity in the basic arguments and pieces of evidence used in testimony by ostensibly independent experts. It is revealing that few of these experts have published on the history of tobacco. Consider recent testimony by other historians from the state universities of South Carolina, Oregon, and Minnesota and the Woodrow Wilson Center in Washington, D.C., who have recited the industry line that tobacco's ill effects were widely known. Curiously, the actual specialties of these historians include Latin American history and the United States' international relations. None is a historian of addiction or of tobacco use, and most don't even concentrate on general U.S. social history. All of the testimony follows essentially the same pattern as Ambrose's, culled almost exclusively from newspaper and magazine articles as well as polling data, all highly correlated with the industry's own propaganda.
None of these independent historians has balanced the picture with discussion of how the popular culture glamorized smoking or of the industry's own efforts to persuade Americans that smoking was an acceptable risk. Rather, they've emphasized the occasional obscure pop culture item that bemoaned tobacco, such as Tex Williams's 1947 recording of "Smoke! Smoke! Smoke! (That Cigarette)" about the power of nicotine. "It is a very narrow view of what a sophisticated historian would call common knowledge," said Allan Brandt, a Harvard medical historian who has reviewed much of this testimony. "It fundamentally eliminates several of the larger forces that help to construct common knowledge, such as the public statements of the industry itself." Although those interviewed for this article said their research was self-directed, coincidentally they all zeroed in on the same factoids while ignoring other information.
The industry's witnesses are also highly selective in their use of polling data. A 1998 paper written by researchers with the Gallup organization criticized the biased selection of polls by historians in tobacco trials, noting they consistently picked polls that give an inflated sense of the public's awareness of health risks from smoking. The report focused on the specific testimony of Lacy K. Ford, a University of South Carolina professor who specializes in southern history, but the polls Ford cited are also typically singled out by other pro-industry witnesses. Most dredge up a question Gallup asked in 1954: if people had heard or read anything about smoking being a cause of lung cancer. Ninety percent of respondents said yes, which the industry's experts cite as evidence that lots of people knew plenty about the risks of smoking. But Gallup's researchers point out that in the very same year, when a poll asked respondents specifically if they believed smoking is a cause of cancer, only 42 percent said yes. (During a phone interview, Ford said he had made it a policy not to talk about the substance of his testimony.)
Theodore Marmor said that as an expert witness he is open to testifying for whichever side thinks his opinions will be helpful, and that he enjoys the intellectual challenge of testimony. "Testifying is the most direct challenge to my capacity as a scholar to speak truthfully and persuasively--much more so than academic writing," he explained. Last year, Marmor wrote an expert witness report and gave a deposition in a union health fund lawsuit against tobacco companies. He was paid $20,000 for his time, and his research assistants received another $20,000. Marmor said he is scheduled to testify this spring in a similar case brought by various Blue Cross Blue Shield plans. A substantial part of Marmor's testimony in both cases is essentially a variation of the common-knowledge defense, arguing that it didn't matter that the industry didn't tell insurance companies or union funds what it knew about smoking because there was already enough information out there for them to make their decisions. Marmor draws a distinction between his role as a public health advocate and his willingness to testify for the tobacco companies. "The role of the academic expert is to tell the truth," said Marmor in an interview. "The role of political participants is to seek value."
Marmor, like many other academic witnesses hired by the industry, is not an expert on tobacco. Though he has written more than 100 scholarly articles, he has not published on smoking and health. He is, rather, a general health policy analyst. His value to the industry is not in his expertise about tobacco per se, but in his willingness as a Yale professor to lend general credence to the industry's tactic of insisting that no cover-up occurred because tobacco risks were well-known. In this sense, experts like Marmor function less as repositories of specialized scholarly knowledge than as character witnesses for tobacco.
Last year Kenneth Ludmerer testified in an individual smoker trial in Portland, Oregon, which Philip Morris lost in a landmark $80-million verdict for the plaintiff. Like Marmor, Ludmerer, author of two exhaustive and acclaimed histories of medical education, has not published on tobacco. In his testimony, he specifically discussed the medical literature between 1930 and 1964, when the first surgeon general's report on the dangers of smoking came out. He reviewed the emerging scientific controversy, discussing how scientists were slow in coming to a consensus about what the statistical data linking lung cancer and cigarettes meant. "The testimony was purely historical. When did we first become suspicious? When did a consensus arrive? It was purely historical testimony," Ludmerer said in an interview. "I'm firmly on record that tobacco is a great threat to public health. I am not an apologist for the tobacco industry."
In questioning directed by the tobacco attorney, Ludmerer's expertise was brought to bear on more than the 1,200 to 1,600 articles he estimated he read in preparation for his testimony. For example, at one point the lawyer asked Ludmerer about Clarence Little, a former head of the American Cancer Society who assumed the leadership of the tobacco industry's research body when it was created in 1954. In the Frank Statement that year, the industry promised the American public the council's research would be directed by a "scientist of unimpeachable integrity and national repute." When asked if that was an accurate description of Little, Ludmerer replied, "Absolutely. Very much so."
But as Richard Kluger explains in his tobacco industry history, Ashes to Ashes, while Little might have had a formidable medical past, as head of the Tobacco Industry Research Council (later the Council for Tobacco Research) he directed no substantial research into the cancer question and essentially became part of the tobacco industry's obfuscation process. And, in this instance, so did Ludmerer.
The tobacco industry pays generously and gets its money's worth. Expert testimony can be crucial in a tobacco trial, swaying juries to overlook internal documents showing the industry targeted children with its marketing or lied about its own scientists' opinions about smoking, or ran a propaganda campaign to convince the public that smoking was safe. While the industry has been forced to settle with attorneys general for many billions of dollars, it is only just beginning to feel the impact of juries finding that the industry deliberately killed millions of people by persuading them to smoke despite what the industry knew.
Most reputable scholars will not give partial and highly selective accounts of available evidence depending on who is paying the freight. What's disconcerting is that plenty of independent scholars, when paid enough money, are evidently willing to lend their names to an enterprise that is responsible for hundreds of thousands of smoking deaths annually, and to what would be dubious scholarship in any other context. ¤