“Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic exceed his knowledge of the facts that are relevant to that topic.”
Harry Frankfurt, On Bullshit 63 (Princeton 2005)
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An in-press paper that attacks the ethics and motives of tobacco defense expert witnesses is making some ripples in the science and legal popular media. See, e.g., Tracie White, “Physicians testified for tobacco companies against plaintiffs with head, neck cancers, study finds,” ScienceDaily (July 17, 2015); Joyce E. Cutler, “Motives of Tobacco’s Experts Questioned by Study,” BNA Snapshot -Product Safety & Liability Reporter (July 20, 2015) [cited as Cutler]. The paper is now available in an in-press version. Robert K. Jackler, “Testimony by Otolaryngologists in Defense of Tobacco Companies 2009-2014,” The Laryngoscope (July 17, 2015) (in press) (doi: 10.1002/lary.25432). The paper is worth close study.
Dr. Robert Jackler, the Edward C. and Amy H. Sewall Professor in Otorhinolaryngology, at the Standford Medical School, has previously published his views of the tobacco industry’s role in obscuring medical research on the causal role of tobacco in human cancer.[1] In his most recent contribution, Jackler has reviewed tobacco companies’ expert witnesses’ testimonies to assess their consistency with what Jackler takes to be well-warranted scientific conclusions of known human cancer risks. From his one-sided review (of only defense witnesses) of a limited number of cases, Jackler concludes that tobacco defense expert witnesses were systematically biased in their under-estimation of the magnitude of tobacco-related risks, and their consistent inflation of non-tobacco risks, both in terms of their magnitude, prevalence, and scientific warrant of causality. Although one-sided in his review, Jackler does cite to transcripts that are available on-line from repositories at the University of California San Francisco Legacy Tobacco Documents Library. Disinterested observers can explore further the allegations and their merits by reading the primary documents.
The cases reviewed by Jackler included nine cases of upper aerodigestive-tract cancers (mostly larynx and esophagus), in which six defense otolaryngologists testified that tobacco played no role, or that there was no scientific basis for attributing individual cancers to tobacco. Jackler’s review interestingly identifies a tobacco defense strategy of “leveling” known causes with suspected causes and risk factors, to create a laundry list of differentials in a differential etiology for specific causation. Some of the risk factors that defense expert witnesses postulated included human papillomavirus (HPV), alcohol, mouthwash, heredity, asbestos, diesel fumes, gasoline fumes, salted fish, mouthwash, and urban living.
This epistemic dilution is indeed objectionable, but of course, it is the same epistemic bootstrapping that plaintiffs’ expert witnesses routinely use to place questionable, weakly supported differentials in their specific causation assessments. Consider the recent Tennessee appellate decision in Russell v. Illinois Central RR, in which the court rejected a defense challenge to the dodgy testimony of plaintiffs’ expert witness, Dr. Arthur Frank, that plaintiff’s throat cancer was caused by a etiological soup of asbestos, diesel fume, and environmental tobacco smoke. Russell v. Illinois Central RR, No. W2013-02453-COA-R3-CV, 2015 Tenn. App. LEXIS 520 (Tenn. App. June 30, 2015) (affirming judment for plaintiff in excess of $3 million).
Jackler notes that tobacco witnesses frequently raised the specter of “etiological soup.” Jackler at 3. For instance, some tobacco defense expert witnesses raised even possible asbestos exposure as a cause of laryngeal cancer, but Jackler is appropriately skeptical: “Although some studies suggest an additive effect with smoking, a meta-analysis concluded that the weight of the evidence does not support a causal association.” Jackler at 6 (citing H. Griffiths & N.C. Molony, “Does asbestos cause laryngeal cancer?” 28 Clin. Otolaryngol. & Allied Sci. 177 (2003); and Kevin Browne & J. Bernard L. Gee, “Asbestos exposure and laryngeal cancer,” 44 Ann. Occup. Hyg. 239 (2000). Jackler might be surprised by the stridency and the overreaching of a large segment of the occupational medicine community’s disagreement with his assessment.
Tobacco defense expert witnesses frequently raised diesel fume exposure as an alternative cause, but Jackler finds this testimony disingenuous. “The relationship of diesel fume exposure to laryngeal cancer has been discounted.” Jackler at 6 (citing J.E. Muscat & Ernst L. Wynder, “Diesel exhaust, diesel fumes, and laryngeal cancer,” 112 Otolaryngol. Head Neck Surg. 437 (1995)). So where is Jackler’s outrage against plaintiffs’ expert witness excesses, and the judicial acquiescence in accepting testimony such as that given by Dr. Arthur Frank in the Russell case.
Some of the risks, risk factors, and alternative causes invoked by the tobacco defense expert witnesses, as related by Dr. Jackler, did appear fantastical or false. Jackler, however, does not explore how the plaintiffs’ counsel addressed such over-reaching, or how the court responded to objections and challenges to the defense expert witness testimony. Plaintiffs’ counsel may have strategically allowed tobacco defense expert witnesses to overreach, in order to have a “harder” target on cross-examination.
Improper to Criticize Expert Witnesses
A spokesperson for Philip Morris, Bill Phelps, responded to Jackler’s critique by telling the BNA reporter that:
“We believe that out-of-court attempts to criticize experts for testifying on behalf of defendants in these cases have no place in our judicial system.”
Cutler. Phelps’ criticism is ambiguous between suggesting that any criticism of expert witnesses outside court is improper and suggesting that criticizing expert witnesses simply on the basis for testifying for the tobacco companies is improper.
If Phelps’s point was the latter, then it seems unexceptionable. Surely, the companies have a right to defend themselves, as long as they sponsor expert witness testimony in a responsible way. And certainly, any number of anti-tobacco scientists and physicians have resorted to bullying and name calling in efforts to chill scientists from speaking or testifying for tobacco companies, not by criticizing the substantive merits of testimony, but by asserting a contagious moral leprosy from merely having associated with tobacco companies.
Jackler comes very close to saying that physicians and scientists should not testify on behalf of tobacco companies. He casts aspersion on all tobacco defense expert witnesses by quoting others who state that “[t]he tobacco industry pays generously and gets its money worth.” Jackler at 7 (quoting L. Maggi, “Bearing Witness for Tobacco,” 21 J. Pub. Health Pol. 296 (2000). Jackler notes that “[u]nethical experts bias their testimony to bolster the position of the side who hired them.” Jackler at 7. But Jackler’s review is itself biased by his failure to examine the contentions and degrees of warrant of plaintiffs’ expert witnesses on any issues. Jackler does not articulate a view in his own voice, but states that “[s]ome medical ethicists question whether it could ever be ethical for a physician to testify on behalf of the tobacco industry.” Jackler at 7. Jackler’s implication begs the question whether plaintiffs, and their expert witnesses, are correct on all their medical claims, in every case.
The former point — that any out-of-court criticism of courtroom testimony — is wrong. Trenchant criticism of expert witness testimony is very much needed, and it is hard to see how it would not be helpful to public debate and to improvement of the judicial process. (Again, assuming that the critical discussions are fair and evidence-based.)
In an interview with the BNA, Jackler speculates:
“I think that these [tobacco defense] physicians testifying did so with the belief that their behavior would not become public. And this is an area where shedding light and creating dialogue will help to encourage people to behave ethically when giving their testimony.”
Cutler (quoting Jackler). If expert witnesses on either side think that they can escape critical scrutiny by advocating fabulous fictions in the courtroom, then we would all be better off if we could disabuse them of their notions. In his article, Jackler notes that his professional organization, the American Academy of Otolaryngology – Head and Neck Surgery (AAO–HNS) has, since 2003, had a policy that states:
“Physician expert witnesses should not adopt a position as an advocate or partisan in the legal proceedings”; and that
“the physician expert witness should be aware that transcripts of their deposition and courtroom testimony are public records, subject to independent peer review.”
Jackler at 7 (citing American Academy of Otolaryngology–Head and Neck Surgery official policy on expert witnesses (revised October, 2012)). So the tobacco defense expert witnesses should certainly have been prepared for the post-trial “peer review” that Jackler provides. What is curious about Jackler’s article, and his obvious sense of outrage, is that he does state whether he has filed an ethics complaint with the American Academy or with any other reviewing organization.
Philip Morris Claims that Jackler Has Undisclosed Conflicts of Interests
The Philip Morris spokes person also noted “[Dr. Jackler had] failed to disclose that he has previously worked with counsel for plaintiffs in the Engle cases.” Cutler. Jackler responded to the BNA, stating “[c]ategorically, I have never testified in tobacco litigation. Specifically, I have never worked for lawyers on either side in any capacity in Engle cases.” What about other cases, outside Florida? Jackler’s in-press article states that it was “[s]upported by Stanford Research into the Impact of Tobacco Advertising, Stanford University School of Medicine, Stanford, CA. The authors have no other funding, financial relationships, or conflicts of interest to disclose.”
One Defense Expert Witness Responds
One defense expert witness, otolaryngologist Dr. Michael Bertino, responded to Cutler in an interview. Dr. Bertino noted that Jackler was out of touch with the risk factor epidemiology of laryngeal cancer, and that strong evidence had emerged that tobacco is not the only strong risk for this cancer. Many older studies, for instance, did not look at the role of human papilloma virus (HPV), which has been identified as a prevalent cause of oral and esophageal cancers. Cutler (citing oral interview with Dr. Bertino). Jackler’s article acknowledges that HPV has been identified in substantial percentages of oral pharyngeal cancers, but disputes that the virus is a substantial independent cause of these cancers. I will leave to others to determine whether Jackler’s review of the HPV studies is fair and balanced, and to what extent it “falsifies” Dr. Bertino’s testimony.
[1] Robert K. Jackler & H. Samji, “The price paid: Manipulation of otolaryngologists by the tobacco industry to obfuscate the emerging truth that smoking causes cancer,” 122 The Laryngoscope 75 (2011).
