Some physicians are repeatedly willing to stand up in court on behalf of tobacco companies and testify that a lifetime of heavy smoking did not cause the cancer of dying patients who are suing the companies — despite overwhelming scientific evidence that suggests otherwise, according to a new and disturbing study from Stanford University.
In fact, those so-called medical experts are even willing to testify that smoking is not addictive and to characterize reports from the Surgeon General on the health dangers of smoking as “not authoritative.”
“I was shocked by the degree to which these physicians were willing to testify, in my opinion, in an unscientific way, to deny a dying plaintiff — suffering the aftermath of a lifetime of smoking — of a fair trial,” said the study’s author, Dr. Robert Jackler, chair of Stanford’s otolaryngology-head and neck surgery department, in a released statement.
Here’s a finding, however, that may make that willingness seem less shocking: Tobacco companies pay the doctors handsomely for their testimony — up to $100,000 per physician per case, according to Jackler’s research.
A narrow focus
Jackler focused his study on a specific group of physician expert witnesses: other otolaryngologists (physicians with special training in the treatment of diseases of the head and neck) who testified in Florida lawsuits involving head and neck cancer between 2009 and 2014. A search of legal databases turned up six board-certified otolaryngologists who had testified in defense of the tobacco companies in nine cases during that time frame (and several dozen additional cases at other times).
The nine cases all centered around the issue of whether smoking caused the patient’s cancer. A Florida Supreme Court ruling in 2006 made it possible for plaintiffs to proceed in such cases without have to re-litigate matters such as the dangers of tobacco or the fact that the industry has a history of deceiving the public about those dangers.
Jackler read through all the depositions and trial testimony of the six physicians in these cases and compared that testimony to the scientific literature on cancers of the head and neck. He found that the physicians had repeatedly misstated, obfuscated or outright denied commonly accepted evidence.
Many of the physicians “refused to agree that nicotine is addictive, citing lack of expertise, even though it has been widely accepted by the medical profession for decades,” Jackler writes. “[They] also denied the validity of widely recognized authoritative sources such as Surgeon General’s reports.”
A cynical strategy
One very common strategy used by the tobacco company’s expert witnesses was to cite an exhaustive list of possible risk factors for head and neck cancer, including anemia, cleaning solvents, gasoline fumes, mouthwash, eating salted fish and meat, and living in urban areas.
This list — which Jackler calls “an etiological soup” — has a cynical purpose: to confuse the juries.
“Tobacco legal defense teams have honed methods to implant the notion in the jury that tobacco’s role in a plaintiff’s cancer is controversial and that the scientific evidence is debatable,” writes Jackler. “Their strategy is to manufacture doubt in the mind of jurors, who lack the technical background needed to critically analyze testimony on cancer causation. With extensive case experience, tobacco lawyers have crafted arguments carefully tailored to persuade those lacking scientific background.”
As Jackler painstakingly points out, none of the risk factors on these lengthy lists — even if they were all credible (and they’re not) — comes even remotely close to approaching the risk posed by smoking.
Indeed, one 2009 meta-analysis of more than 85 studies found that smokers are more than four times likely to develop cancer of the upper aerodigestive tract (lips, mouth, tongue, nose, throat, vocal cords, and part of the esophagus and windpipe) than non-smokers and 19 times more likely to develop cancer of the larynx.
The tobacco companies — and their physician-witnesses — know all too well that long lists of theoretical causes may sway juries, says Jackler, despite the “obvious fallacy” of the argument.
“That fallacy lies in the fact that literally billions of nonsmoking people are exposed regularly to gasoline fumes, use cleaning solvents, eat salted fish, or live in urban environments,” he writes. “Were these causative factors for head and neck cancer, with even a minute fraction of the potency of tobacco, the rate of head and neck cancer among nonsmokers would be much greater than what has been observed.”
‘The best that money can buy’
“The tobacco industry identifies the best experts that money can buy, trains them in their well-honed narrative to manufacturer doubt in the minds of the jury and makes use of them over and over in case after case,” Jackler concludes.
The medical community — including specialty societies such as the American Academy of Otolaryngology-Head and Neck Surgery — needs to engage in more formal reviews of such testimony to make sure it adheres to professional ethical standards, he adds.