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* The piece addresses R.J. Reynolds's attempt to subpoena an unpublished work-in-progress by plaintiffs' expert Robert Proctor, describing the effort as "harassment-by-subpoena."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