Tobacco.org

CHILDS: Historians in Tobacco Litigation 

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* The piece addresses R.J. Reynolds's attempt to subpoena an unpublished work-in-progress by plaintiffs' expert Robert Proctor, describing the effort as "harassment-by-subpoena."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. . . .

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. . . .

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. . . .

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.

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UPCOMING EVENTS AT THE KENTUCKY HISTORICAL SOCIETY: Museum Theatre: “Tobacco’s Tale: From Bed to Basket” 

All events held at the Thomas D. Clark Center for Kentucky History unless otherwise noted.

May 5, 2010

2:00pm - 2:15pm

Museum Theatre: “Tobacco’s Tale: From Bed to Basket”

Listen to the changing rhythms of tobacco farming in Kentucky to the cadence of the auctioneer’s call. (5 minutes.) Free with museum admission.

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The Surprising Lives of Famous Pitchmen: The Marlboro Men 

That was the notion dreamt up by ad exec Leo Burnett in 1954. The Don Draper of his day, Burnett devised the mascots for Green Giant (GIS), Froot Loops (K), 9Lives (DLM), and 7 Up (PEP), among many others. Employed by Philip Morris -- rebranded as Altria (MO) in 2003 -- to inject new life into Marlboro, Burnett transformed the brand's female-targeted slogan "Mild as May" into something more substantial and electrifying.

Burnett was inspired by a spread in a 1949 issue of Life magazine focused on a ranch foreman by the name of C.H. Long. Weathered purveyor of such pithy summations of masculinity like "If it weren't for a good horse, a woman would be the sweetest thing in the world," Long exemplified Burnett's new direction and cash cow for Philip Morris: the Marlboro Man. . . .

Wayne McLaren, David McLean, and Dick Hammer -- three actors who appeared in the Marlboro Man ads -- were diagnosed with lung cancer and each eventually succumbed to the disease. After McLaren learned he had cancer, he became a renegade . . .

As awareness of the dangers of smoking grew and cigarette ads were banned from the television airwaves, the Marlboro Man was relegated to print and billboard ads, eventually fading from public view. The high-profile deaths of three pitchmen hired to promote cigarettes prevented legitimate glorification of the Marlboro Man -- an irony too poignant to be ignored.

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Order will impact asbestos verdicts  

An order filed Wednesday will ensure asbestos plaintiffs don't get paid twice for the same alleged injuries.

Circuit Judge Ronald Wilson's order essentially ensures that defendants in asbestos cases receive proper credit when plaintiffs are paid by trusts of bankrupt defendants. In asbestos cases that go to verdict, money paid by such trusts would reduce the amount of the money paid out.

The order is meant to make the process of dealing with trusts of bankrupt asbestos defendants more open and to make it easier for all parties involved to see what plaintiffs in such cases told the trusts. . . .

Cohn also referenced the infamous Kananian vs. Lorillard Tobacco Company case in Ohio.

He has called the case "the poster-child for abuses flowing from the opaque nature of the trust claiming process."

In that case, Harry Kananian claimed in he developed mesothelioma solely from smoking Lorillard's asbestos-filtered cigarettes. But he and his attorneys simultaneously filed claims with numerous asbestos trusts alleging that their products caused the disease. Despite Kananian's attorneys' attempts to hide this information, Lorillard eventually learned that these lawyers had obtained hundreds of thousands of dollars by submitting contradictory -- even bogus -- trust claims, leading the judge to revoke counsel's pro hac vice privileges.

"Judge Wilson's order is good, but it still potentially allows for the gaming of the system by deferring the submissions," Cohn said of Wednesday's West Virginia order. "The problem, especially in joint and several jurisdiction, there are fewer and fewer solvent defendants. The share they might end up paying is bigger and bigger. These defendants are looking down the barrel of a gun in joint and several jurisdictions."

. . .

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• GALLMAN / WIENER: Re 'Big Tobacco and the Historians' 

I read this article with interest because I have been on the periphery of some of the events Jon Wiener describes. I would like to take this opportunity to correct the record on a few points.

In April 2008 Dr. Gregg Michel, an historian from Texas, contacted me in my capacity as graduate coordinator in the history department at the University of Florida. . . .

A few months ago I was surprised to learn from a Chronicle of Higher Education reporter that my name appeared in e-mails and legal depositions that were part of a pending case. The tobacco lawyers had charged Proctor with meddling with their case and had deposed both Proctor and Smocovitis. . . .

Now we have Wiener's "Big Tobacco and the Historians." The essay raises a host of interesting issues about what historians should and should not do, but it also raises a few serious concerns in my mind. . . .

My second concern is how Wiener characterizes Proctor and his behavior towards those graduate students. Having interviewed Proctor, Wiener tells us that the Stanford professor is a helpless victim who had not tried to intimidate anyone. He merely wrote an innocent e-mail to Betty Smocovitis about UF students. I do not know Dr. Proctor and cannot look into his soul and determine his intentions (any more than Wiener can). I do know that Judge William A. Parsons of the Seventh Judicial Circuit Court, who presumably has more experience peering into people's souls, reviewed the complex chain of events and the e-mails that Proctor sent--including some that he had apparently tried to destroy--and concluded that "he appears to have used Dr. Smocovitis to generate activity designed to harass, humiliate and cause the graduate students . . .

Reasonable people can disagree about whether historians should ever be paid advocates for Big Tobacco. But it seems to me that when historians like Jon Wiener engage in supporting some historians and attacking others, they should go about their business like professional historians and not like paid advocates.

J. MATTHEW GALLMAN

• ANDERSON: Tobacco's reappearance in advertising, films and TV shows may seduce a new generation into its clutches – or maybe not  

Elle Macpherson's ex and Uma Thurman's on-off fiancé appears in the latest Harper's Bazaar in a photograph that simply reeks of animal magnetism, all because of the addition of a single prop: a lit cigarette. . . .

The tragic fact, however, is that cigarette manufacturers have proven themselves adept at capturing the hearts and soon-to-be-blackened lungs of millions of men and women through the power of a simple image. In the 1920s, when tobacco barons were concerned that only men were picking up the habit, thus depriving them of half the market, they organised photographs of suffragettes smoking what were described as "torches of freedom". Smoking was immediately wrapped up with the image of rebellion. It was an idea furthered by James Dean in his portrayal of definitive teen angst in Rebel Without A Cause, whose poster saw the star cradling a lit cigarette, making them an obligatory accessory for disaffected youth everywhere.

Of course, it is hard to rebel when a behaviour has been adopted by the masses. The irony is that our aggressively no-smoking culture could be the petri dish for a new generation of rebels. Certainly Ash Scotland, the anti-smoking charity, is concerned about the new vogue for images of celebrity smokers and the negative effect they could have on the younger generation. . . .

Although cigarettes still exude an edgy glamour, especially when pressed between the pursed lips of a skinny model, we only have to look at one of their loyal disciples, Kate Moss, to see how she has aged beyond her non-smoking peers.

The damage smoking does is seen every day by Dr Darren McKeown, one of Scotland's leading aesthetic medical practitioners, with clinics in Glasgow and Harley Street. . . .

Anti-smoking lobbyists would like to see all films which feature smoking slapped with an 18 certificate, but even if they are successful the beguiling glamour that confronts the reader with the flick of a magazine page may still remain.

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Our Presidents and Cigars 

If his current reluctance to actually smoke a hand-rolled premium cigar remains intact, Clinton will be endangering a presidential tradition--the 196-year-old relationship between the Oval Office and cigars.

In the early days of White House life, it was those men and women from Southern plantations who seemed to be the greatest consumers of tobacco in all forms. The seventh president, Tennessean Andrew Jackson, was such a regular user of plug that brass spittoons--now in his Tennessee estate, the Hermitage--were installed at the White House. Virginian Dolley Madison scandalized Washington as one of the few women to openly pinch snuff with congressmen. Still, it was tobacco in the form of cigars that remained the choice of presidents.

Although he raised tobacco as a cash crop at Mount Vernon, there is no evidence that George Washington smoked cigars. The first president to enjoy a "seegar" was James Madison, the country's fourth leader, who smoked until his death at 85 in 1836.

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GOLDACRE: Study with a very interesting twist 

If the media were actuarial about drawing our attention to the causes of avoidable death, newspapers would be filled with diarrhoea, Aids and cigarettes every day. In reality we know this is an absurd idea. For those interested in the scale of our fascination with rarity, one piece of research looked at a period in 2002 and found that 8,571 people had to die from smoking to generate one story on the subject from the BBC, while there were three stories for every death from vCJD.

So you’ve probably heard that smoking may prevent Alzheimer’s. It comes up in the papers, sometimes to say it is true, sometimes to say it has been refuted. Maybe you think it’s a mixed bag, that “experts are divided”. Perhaps you smoke, and joke about how it will stop you losing your marbles. . . .

So does that mean we can ignore all research that comes from people who disgust us? In Nazi Germany two researchers, Schairer and Schniger, worked on biological theories of degenerate behaviour under Professor Karl Astel, who helped organise the operation that murdered 200,000 mentally and physically disabled people.

In 1943 the researchers published a well-conducted study demonstrating a relationship between smoking and lung cancer. Their paper wasn’t mentioned in the classic Doll and Bradford Hill paper of 1950, it was referred to only four times in the 60s, once in the 70s, and then not again until 1988, despite providing a valuable early warning on a killer that would cause 100mn early deaths in the 20th century. It’s not obvious what you do with evidence from untrustworthy sources, but it’s always worth appraising its untrustworthiness with the best tools available.

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Kansan sought suffrage, ban on smoking 

Minnie Johnson Grinstead was ahead of her time -- by nearly a century. A Baptist preacher, teacher and speaker, Grinstead advocated keeping Kansas tobacco free.

In November 1918, Grinstead was elected to the state House of Representatives. It was a first for Kansas women. . . .

She introduced legislation that made the purchase of tobacco illegal in Kansas -- although it did not gain much momentum. Grinstead served three terms.

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• Smoking prevents Alzheimer's? It depends who you ask 

If the media were actuarial about drawing our attention to the causes of avoidable death, newspapers would be filled with diarrhoea, Aids and cigarettes every day. In reality we know this is an absurd idea. For those interested in the scale of our fascination with rarity, one piece of research looked at a period in 2002 and found that 8,571 people had to die from smoking to generate one story on the subject from the BBC, while there were three stories for every death from vCJD.

So you've probably heard that smoking may prevent Alzheimer's. It comes up in the papers, sometimes to say it is true, sometimes to say it has been refuted. Maybe you think it's a mixed bag, that "experts are divided". Perhaps you smoke, and joke about how it will stop you losing your marbles.

This month, Janine Cataldo and colleagues publish a systematic review on the subject, but with a very interesting twist. First they found all the papers ever published on smoking and Alzheimer's, using an explicit search strategy which they describe properly in the paper – because they are scientists, not homeopaths – to make sure that they found all of the evidence, rather than just the studies they already knew about, or the ones which flattered their preconceptions.

They found 43 in total, and overall, smoking significantly increases your risk of Alzheimer's. But they went further. Eleven of the studies were written by people with affiliations to the tobacco industry. This wasn't always declared, so to double check, the researchers searched on the University of California's Legacy Tobacco Documents Library, a vast collection of scanned material which has been gathered over decades of legal action.

If you ever want to spend a chilling afternoon in the head of an industry whose product has been proven to kill a third of its customers, this is the place for you. . . .

How much did it matter if the researchers worked for the tobacco companies? A lot: the risks of Alzheimer's associated with smoking reported by these papers were on average about a third lower than those conducted by others, and they produced many papers showing cigarettes were protective. If you exclude these 11 papers, and look only at the remainder, your chances of getting Alzheimer's are vastly higher: comparing a smoker against a non-smoker, the odds are higher by 1.72 to 1.

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Web Letters: Big Tobacco and the Historians 

The dangers of smoking, including brain damage and criminal behavior, were well known in the nineteenth century. Ninety percent of convicts are smokers. At the beginning of the twentieth century, however, all mention of smoking hazards vanished from the press. After all, the tobacco industry was their biggest source of advertising revenue. Even in 2010, smoking-related brain damage, mental illness, Alzheimer's Disease, depression, suicide, alcoholism, drug abuse and criminal and psychopathic behavior are unmentionable. See "Prevent Tobacco-Caused Brain Damage."

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Last tobacco maker in Petersburg ends local operations  

The city's last remaining tobacco manufacturing company has closed its headquarters here, moving to the Richmond area and marking an end to Petersburg's role in an industry that once employed more than two-thirds of the city's workers.

Star Scientific Inc. recently moved its corporate headquarters and sales office from South Market Street to a new location in the Glen Allen area. Fewer than 30 employees were affected, and most have transferred to the new location, said Sara Troy Machir, Star's vice president for communications and investor relations. . . .

Star's opening a couple of years later maintained the industry's presence in Petersburg but at a much lower level of activity: The company's manufacturing operation employed about 40 people here in the late 1990s before it shifted to Chase City.

That was a huge decline from tobacco's boom times locally after the Civil War. An 1880 report on the industry in Virginia noted that 68 percent of Petersburg's workers at the time were employed in tobacco manufacturing, when the industry accounted for 12 factories in the city.

A more detailed 1917 report issued by the Petersburg Chamber of Commerce listed the city's biggest tobacco producers at the time: British-American Tobacco Co., the owner of Brown and Williamson; the Export Leaf Tobacco Co.; Maclin-Zimmer-McGill Tobacco Co.; and Seidenberg and Co.

In those years, the city was producing an annual average of 2.1 billion cigarettes, as well as 13.2 million cigars, 600,000 pounds of smoking tobacco and 5.5 million pounds of plug and twist (chewing) tobacco.

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Comparison of advertising strategies between the indoor tanning and tobacco industries 

The indoor tanning industry is large and continues to grow, with 2007 domestic sales in excess of $5 billion. Advertising is central to shaping the consumer's perception of indoor tanning as well as driving industry demand. This article aims to identify key drivers of consumer appeal by comparing tanning advertising strategies to those used by tobacco marketers. Tobacco advertising was selected as a reference framework because it is both well documented and designed to promote a product with known health hazards. Two thousand advertisements from 4 large tobacco advertisement databases were analyzed for type of advertisement strategy used, and 4 advertising method categories were devised to incorporate the maximum number of advertisements reviewed. Subsequently, contemporary tanning advertisements were collected from industry magazines and salon websites and evaluated relative to the identified strategy profiles. Both industries have relied on similar advertising strategies, including mitigating health concerns, appealing to a sense of social acceptance, emphasizing psychotropic effects, and targeting specific population segments. This examination is a small observational study, which was conducted without rigorous statistical analysis, and which is limited both by the number of advertisements and by advertising strategies examined. Given the strong parallels between tobacco and tanning advertising methodologies, further consumer education and investigation into the public health risks of indoor tanning is needed.

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New Study Finds Similar Advertising Strategies Used by Indoor Tanning and Tobacco Industries 

While the proven negative health consequences of smoking and tanning are undeniable, tobacco and indoor tanning advertisers would like consumers to think otherwise. In fact, a new study comparing the tactics used in advertising tobacco and indoor tanning products found several similarities in how these two industries market unhealthy products.

In the report entitled, “Comparison of advertising strategies between the indoor tanning and tobacco industries,” published online in the Journal of the American Academy of Dermatology, dermatologist David A. Jones, MD, PhD, FAAD, in private practice in Newton, Mass., presented results of an observational study which concluded that both industries employ advertising strategies to counteract health concerns of their products in order to positively influence the consumer’s perception of smoking and indoor tanning and drive industry demand. . . .

In reviewing 2,000 advertisements from four large tobacco advertising image databases, Dr. Jones and his colleague, Jennifer Herrmann, MD, identified four key strategy profiles that were used to sell their products. These strategies included: mitigating health concerns, appealing to a sense of social acceptance, emphasizing psychotrophic effects, and targeting specific population segments. Dr. Jones added that tobacco advertising was selected as a reference framework because it is well documented and designed to promote a product with known health hazards.

Subsequently, a collection of approximately 350 contemporary tanning advertisements was compiled from a variety of sources – such as industry magazines, salon and industry Web sites, and in-store promotional materials – and evaluated based on the four key strategies identified in the tobacco advertisements.

As the increased incidence of lung cancer, respiratory and cardiovascular diseases and other health risks linked to smoking continued to mount over the years, the tobacco industry adjusted its advertising strategy to mitigate these known health risks. Specifically, the tobacco industry recruited physicians as crucial allies in marketing their products, reassured the public that their brands had competitive health advantages, and commended the intelligence of smokers for choosing cigarettes marketed as “safer” cigarettes.

Using Physicians as Allies Dating back to the 1930s and 1940s, Dr. Jones and his colleague found that physicians wearing white lab coats frequently appeared in cigarette advertisements

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• Big Tobacco and the Historians 

Last summer Robert Proctor, a Stanford professor who studies the history of tobacco, was surprised to receive court papers accusing him of witness tampering and witness intimidation, along with a subpoena for his unfinished book manuscript. Then in January he got another subpoena, this one for three years of e-mails with a colleague, and also for his computer hard drive. Attorneys for R.J. Reynolds and Philip Morris USA are trying to get him barred from testifying in a Florida court as an expert witness on behalf of a smoker with cancer who is suing the companies. . . .

Proctor hadn't tampered with any witnesses; all he had done was e-mail a colleague at the University of Florida asking about grad students there who were doing research for Big Tobacco's legal defense. But he's had to hire his own lawyers and spend days in depositions, defending himself from the charges. He told me he had recently spent "sixteen hours under oath, twelve lawyers in a room overlooking San Francisco Bay, a million dollars spent on deposing me and going after these e-mails."

There's a reason Big Tobacco would like to keep Proctor out of the courtroom. He's one of only two historians who currently testify on behalf of smokers with cancer--while forty historians have testified on behalf of the tobacco industry. . . .

In these cases, history has become a key component in the tobacco attorneys' defense strategy. In the past, when smokers with cancer sued for damages, the companies said they shouldn't have to pay, because there was a "scientific controversy" about whether smoking causes cancer. But in recent years they have given up that argument and now argue something like the opposite: "everybody knew" smoking causes cancer. So if you got cancer from smoking, it's your own fault.

To persuade juries, they need historians--experts who, for example, can testify that newspapers in the plaintiff's hometown ran articles about the health hazards of smoking in the 1940s or '50s or '60s, when he or she started. So Big Tobacco has been spending a lot of money hiring historians--and is stepping up the harassment of Proctor. . . .

The charges of witness tampering and witness harassment concerned history grad students at the University of Florida who had been hired to do research for Big Tobacco by Gregg Michel, a historian at the University of Texas, San Antonio. Proctor learned about the grad students from Michel's deposition. (Michel did not respond to requests for an interview.) "I e-mailed a colleague at the University of Florida asking about this," Proctor said--Betty Smocovitis, a historian of science. "She wrote back and said she was horrified. Said it couldn't be true. Then she found that it was." . . .

Given the deception practiced by Big Tobacco, how are the historians who work for tobacco attorneys able to blame the smokers? As they admit under cross-examination by plaintiffs' attorneys, in their "research," they fail to examine the most important source of information on the history of smoking: the archives of the tobacco manufacturers and their public relations firms, which are readily available online at tobaccodocuments.org , , ,

Why, over the past fifteen years, have forty historians wanted to help Big Tobacco? I asked a dozen historians on Kyriakoudes's and Proctor's lists. Virtually all declined to be interviewed, including Otis Graham, emeritus at the University of California, Santa Barbara; Elizabeth Cobbs Hoffman of San Diego State; and Terry Parssinen of the University of Tampa, . . .

Historians earn big money working for Big Tobacco: Stephen Ambrose, who taught at the University of New Orleans and was famous for writing bestsellers about D-Day, Lewis and Clark, and Eisenhower as a World War II general, was asked in a deposition why he was testifying for the companies. His answer was brief: "for compensation." Tobacco companies paid him $25,000 for just one case in 1994, according to Laura Maggi in The American Prospect. (Ambrose, a smoker, died of lung cancer in 2002, when he was 66.)

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