Wednesday, March 21, 2007
Interesting essay in the New York Times -- Tracing the Cigarette’s Path From Sexy to Deadly, by Howard Markel, M.D. The essay discusses Professor Allan Brandt's new book, The Cigarette Century: The Rise, Fall, and Deadly Persistance of the Product That Defined America. Interestingly, while Professor Brandt is touted in the essay as the government's "star expert witness," expert witnesses for the tobacco companies are referred to collectively as "tobacco companies -- and their expert surrogates" and the essay also refers to "skeptics of the dangers of cigarettes during the 1950s, many of whom had or would eventually have ties to the tobacco industry." So why is not Professor Brandt a "surrogate" for the government? Does Professor Brandt have "ties" to the plaintiffs' firms or the government through any expert witness fees? Why the seeming double-standard in the essay?
Our litigation system understands the risk of bias from fees or more abstract motives such as the desire for social change. Indeed, postmodern and deconstructionist thought challenges the notion of any completely objective observer. Professor Brandt himself is quoted in the article as saying, "If one of us occasionally crosses the boundary between analysis and advocacy, so be it. . . . The stakes are high, and there is much work to be done." An appreciation of Professor Brandt's contribution should also include assessment of any risks for bias in that work. Just as it should for any tobacco-defendant expert witness. Or for yours truly, who last represented a tobacco defendant six years ago.
Here's an excerpt from the essay in the New York Times:
For many Americans, the tobacco industry’s disingenuousness became a matter of public record during a Congressional hearing on April 14, 1994. There, under the withering glare of Representative Henry A. Waxman, Democrat of California, appeared the chief executives of the seven largest American tobacco companies.
Each executive raised his right hand and solemnly swore to tell the whole truth about his business. In sequential testimony, each one stated that he did not believe tobacco was a health risk and that his company had taken no steps to manipulate the levels of nicotine in its cigarettes
Thirty years after the famous surgeon general’s report declaring cigarette smoking a health hazard, the tobacco executives, it seemed, were among the few who believed otherwise.
But it was not always that way. Allan M. Brandt, a medical historian at Harvard, insists that recognizing the dangers of cigarettes resulted from an intellectual process that took the better part of the 20th century. He describes this fascinating story in his new book, “The Cigarette Century: The Rise, Fall and Deadly Persistence of the Product that Defined America” (Basic Books).