Tuesday, March 9, 2010
Jon Wiener of The Nation has an interesting cover story, "Big Tobacco & the Historians: A Tale of Seduction and Intimidation," in last week's issue. It's well worth a read, especially to see the view of the tort system from the academic historian's perspective.
Some quick observations:
- The piece addresses R.J. Reynolds's attempt to subpoena an unpublished work-in-progress by plaintiffs' expert Robert Proctor, describing the effort as "harassment-by-subpoena." The subpoena was ultimately rejected, according to the story, but the story doesn't suggest (at least to me) that the attempt to obtain the material was facially frivolous, dealing as it did with fairly unusual issues of Constitutional dimension. And of course, it seems fair to observe that Proctor's expert work is compensated, pretty well ($40,000 per year over a dozen years), so I expect he's not having to pay for his lawyers out of his academic salary. That's not to say I think litigants should engage in discovery as a way to intimidate witnesses, nor that people should have to pay for lawyers to protect themselves from unwarranted harassment -- just that it's not self-evident that that's what happened here as opposed to discovery.
As for the rest of the contention that the discovery process is overly demanding and constitutes harassment of experts, nothing in the story suggests that the depositions, etc., in the tobacco litigation are anything more than what is expected of experts on both sides of every high-stakes case. Especially in mass tort cases, experts end up getting deposed many times, because those factual issues predominate and are specific to the particular plaintiffs. Maybe that's a problem in its own right, but I don't see it as something unique to tobacco litigation or unique to plaintiffs' experts.
- More notably, there is, it seems to me, a bit of a disjunction between the types of historian testimony being offered. (The article notes, with evident disapproval, that there are far more historians testifying for defendants in tobacco litigation than for plaintiffs. I'm not sure numerical equivalence is or should be a goal, but set that aside.)
As a general matter, the defense experts testify, per Wiener, that "'everybody knew' smoking causes cancer. So if you got cancer from smoking, it's your own fault." If there is a factual dispute about the level of knowledge of the risk of cancer at a particular time, that seems to me to be a reasonable situation to use expert testimony, and like a reasonable thing for a historian to do. To the extent that plaintiffs' witnesses rebut that testimony, again, that seems reasonable, and indeed, in at least some cases, that's what Proctor testifies about. So far so good, since the knowledge of a plaintiff of a risk is clearly a relevant factual issue in most smoking cases, and one way to show that is through the general knowledge. (It also presumably goes to the reasonableness of the defendant's conduct in light of the purported knowledge of consumers about risks -- if a knife is obviously sharp, one generally need not tell the buyer that the knife is sharp.)
On the other hand, a mistrial was granted when Proctor started to testify about the history of racism in tobacco marketing, including highly offensive brands -- brands not, so far as I can tell, marketed by any extant company or defendant -- that included racial epithets in their names. The mistrial motion is termed a "tactic practiced by tobacco lawyers," again with evident disapproval. In an Engle progeny case, I cannot imagine the relevance of that testimony, no matter how abhorrent the underlying conduct (again, by entities not in the trial) is. The trials -- again, especially in Engle progeny cases -- are about a single factual dispute between one plaintiff and one defendant. While that history is disturbing and relevant to moral judgments (and perhaps to punitive damages if the defendant in that case marketed those products), I don't see how it would make anything at issue either more or less likely to be true. Unless there is a connection between those brands and the defendants in that case, the mistrial motion seems pretty reasonable.
As with many cases of academics venturing into the world of high-stakes litigation (see also Pathophilia's recent post about my Nebraska Law Review article), much of the story suggests some shock that the litigation world is what it is. And certainly it can be ugly, and perhaps ought to be changed. But that doesn't mean its ugliness is directed specifically at any particular expert, or solely at experts for one side or another. It does suggest that experts should be better educated early on about what is likely to happen in litigation.
Update: The Nation has posted an exchange between Weiner and a reader involved in the issues.
(In case it is of interest, I have never done work for the tobacco industry or tobacco plaintiffs, and have had no private clients of any sort for well over a year. Maybe two.)