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© 2006 American Public Health Association
DOI: 10.2105/AJPH.2005.063917
HEALTH POLICY AND ETHICS |
At the time of the preparation of the article, both authors were with Northeastern University School of Law, Boston, Mass.
Correspondence: Requests for reprints should be sent to Daniel Givelber, JD, Northeastern University School of Law, 400 Huntington Ave, Boston, MA 02115 (e-mail:d.givelber{at}neu.edu).
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ABSTRACT |
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For more than 40 years, the tobacco industry prevailed in lawsuits brought by injured smokers, despite overwhelming epidemiological evidence that smoking caused lung cancer. Tobacco lawyers were able to create doubt about causation. They sought to persuade jurors that "everybody knew" smoking was harmful but "nobody knows" what causes cancer by recreating in court the scientific debate resolved by the 1964 Surgeon General’s Report.
The particularistic structure of jury trials combined with the law’s mechanistic view of causation enables a defendant to contest virtually any claim concerning disease causation. Despite judicial efforts to eliminate "junk science" from lawsuits, a well-financed defendant may succeed in persuading jurors of the epidemiological equivalent of the proposition that the earth is flat.
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INTRODUCTION |
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TOPABSTRACTINTRODUCTIONEXAMPLES FROM TOBACCO LITIGATIONSOURCES OF DIFFICULTY AND...References |
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IN DAUBERT V MERRILL DOW,1 the US Supreme Court undertook to eliminate "junk science" from the courtroom. It concluded that the traditional test—general acceptance within the field—was too limited and that the judge also must evaluate whether the witness’s hypothesis has been subjected to peer review, whether the results described as flowing from that theory are replicable, and whether there is a known error rate for the hypothesis advanced. Daubert addressed the question of when a witness will be permitted to testify; it did not address how the witness’s testimony will be evaluated and weighed by the jury.
Unfortunately, the very "junk science" that the Supreme Court sought to ban from the courtroom may still appear through the cross-examination and arguments of lawyers who find it in their client’s interest to make good science appear bad. Tobacco litigation provides the telling example. If lawyers can successfully cast doubt in a juror’s mind on the relationship between cigarette smoking and disease, the danger of junk science driving out good science remains in virtually any lawsuit asserting that sustained exposure to a toxin produced the plaintiff’s disease.
Proving tort causation through epidemiological evidence presents a conceptual challenge. Epidemiology seeks to answer the question, "Do smokers have a higher incidence of a particular form of lung cancer than non-smokers?" Tort law asks, "Did smoking Marlboros for 20 years cause this particular plaintiff’s lung cancer?" Epidemiological evidence most directly answers a question of general causation—Can exposure to this toxin contribute to the development of this disease?—while tort law demands an answer to a question of specific causation—Did exposure to the toxin cause this plaintiff’s disease? The jury is not asked the question that the evidence might actually permit it to decide accurately—whether the defendant’s conduct increased the risk that the plaintiff would become ill with a particular disease—but is required to answer a question that the evidence cannot possibly enable it to answer definitively2—whether the defendant’s product made this particular plaintiff ill.
Courts have resolved this tension by permitting the plaintiff to prove causation through the testimony of an expert that "it is more likely than not" (the law’s requirement for proof in a civil case) that it was exposure to the defendant’s product that caused the injury. Although this view of legal causation has been criticized as a matter of both science and policy,2 courts typically take the position that expert testimony stating that a disease is present in an exposed population at twice the rate that it occurs in the unexposed population is sufficient to permit a finding of cause. They reason that there is at least a 50% chance that the plaintiff’s injury came from exposure to the questioned substance.3
Evidence can be legally sufficient in the sense that it permits the judge or jury to find for the plaintiff without being persuasive. A jury evaluating legally sufficient evidence must still determine (a) whether the evidence is believable and (b) if believed, whether it establishes the disputed proposition—for example, that exposure to a particular toxin caused the plaintiff’s injury. While it is true that "[u]ntil sufficient evidence of causation is developed, all plaintiffs would lose," it is not true that "afterwards, assuming that there exists adequate proof of exposure and other necessary elements of the legal theory being pursued, all would likely win."3(p782) Plaintiffs who offer legally sufficient evidence of causation can and do still lose their lawsuits.
Translating statements about risk factors into conclusions of legal causation can be (and has been) undermined by the ability of defense lawyers to take the very qualities that may make epidemiology scientific and posit them as reasons for the jury to be skeptical that legal cause has been established. The tobacco litigation over the past 50 years illustrates how the tension between the "commonsense" and scientific understandings of causation will not be resolved simply by permitting experts to say that it is "more likely than not" that the defendant’s activities were the necessary cause of the plaintiff’s injury. When defendants are, as the tobacco companies were, prepared to challenge expert testimony through cross-examination designed to demonstrate the difference between risk factors and causation as the witness understands those terms, jurors may be confused as to what they are required to determine.4
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EXAMPLES FROM TOBACCO LITIGATION |
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Although from the outset of tobacco litigation in the 1950s, some courts agreed that the plaintiff’s evidence was sufficient to show that the defendant tobacco company behaved in a manner that could render it liable, no individual plaintiff in a tobacco case collected a judgment against a tobacco company until the late 1990s. The explanations include the following: (a) most plaintiffs abandoned their suits as the tobacco companies refused to settle and expended vast amounts of time and money, overwhelming the resources of individual plaintiffs and their lawyers; (b) when a case did go to trial, the tobacco companies successfully transformed the dispute into a morality play about the plaintiff and his or her failure to quit; (c) the tobacco companies persuaded jurors that the plaintiff knew as much about the evils of smoking as the tobacco companies, hence it was unfair to hold the company responsible for the plaintiff’s choice; and (d) the tobacco companies persuaded some jurors that whether cigarettes caused disease was debatable and whether smoking caused the particular plaintiff’s disease was doubtful. The tobacco lawyers were able to keep alive a debate that had raged and been resolved 40 years ago.5
Their basic approach can be (and was) summarized as "everybody knew, nobody knows."6 Everybody knew that cigarettes were bad for you and nobody knows exactly what causes cancer. "Everybody knew" was the major theme as cigarette trials turned into morality plays concerning the plaintiff’s insistence on continuing to smoke. "Nobody knows" played a supporting role, providing an additional reason for rejecting the plaintiff’s request for damages.
The lawyers’ approach was the product of a great deal of research and pretrial preparation. They conducted surveys to measure attitudes in the communities where trials would occur, mock jury trials in which various approaches were tested, extensive research into potential jurors, and detailed questioning of jurors following the verdicts.7
The energy and resources that went into developing a common strategy paid dividends. The defendants succeeded in persuading jurors not only that (a) the plaintiffs were responsible for their own injuries but that (b) in any event, it was not clear that the defendants’ product caused those injuries. The lawyers’ analyses of how they prevailed in the 2 jury trials8,9 for which documents exist reveal their understanding of their success.
The lawyers for RJ Reynolds, the defendant in both lawsuits, challenged causation through the cross-examination of the plaintiff’s expert witnesses in epidemiology. The lawyers sought acknowledgment that the causal link between cigarette smoking and the cancers of which the plaintiffs complained was an "open question." In the first case, Galbraith v RJ Reynolds Tobacco, the defense was built on the following premises developed through examination of the plaintiff’s witnesses:
- cancer is a multistage process, requiring a number of actions and counteractions to turn 1 cell cancerous while its neighbor cells remain unchanged;
- at least some of the steps in this process and possibly all steps are unrelated to smoking, even in smokers;
- science has not identified either the number of steps in the process of cancer induction or how those steps are triggered;
- epidemiologic studies demonstrate that few smokers, even those that smoke more than 1 pack a day, get lung cancer;
- lung cancer appears in non-smokers, and the rate in nonsmokers is rising
- there are anomalies in epidemiologic literature that are not directly supportive of the causation hypothesis;
- animal experiments involving the inhalation of cigarette smoke have been unsuccessful in inducing lung cancer in subject animals;
- science doesn’t fully understand the mechanism of cancer induction; and
- epidemiology alone cannot prove cause.7(pp680711154–680711155)
The cigarette companies did not call any epidemiologists of their own.7 They feared that they might alienate jurors if they embraced the "hard line" position that there is no causal link between smoking and cancer,10 noting that "the supply of witnesses to support the Defendant’s position is aging and depleted while the plaintiff’s medical experts get more numerous/stronger every year."10(p282012988) The age disparity between the experts for each side reflected the intellectual history of the causation debate: the witnesses who could testify in good faith that they doubted the link between smoking and lung cancer were likely those who developed their skepticism when there was still a legitimate scientific debate prior to the Surgeon General’s Report in 1964.5
Reynolds’s lawyers cross-examined the plaintiff’s epidemiologists with 3 goals in mind:
first, to downgrade the status of epidemiology as a science; second, to use the results of the studies relied upon by the plaintiffs to point out the anomalies in the literature; and third, to have the experts articulate the distinction between a risk factor and a cause.7(p680711155)
The approach worked; jurors were confused about the relevance of the epidemiological testimony.
[T]he fact that the jurors came into the trial believing what the epidemiological experts would testify to [the fact that cigarettes cause cancer] worked in Reynolds favor: the jurors seem to expect something more from the witnesses and to be disappointed when they did not hear it.7(p680711187)
The lawyers sought to establish that epidemiology was a "less than exact science" by getting the plaintiff’s epidemiologists to agree that there were no "scientific criteria" for defining who is an epidemiologist—for example, no certification procedures or required degrees. The next step was to attempt to force the plaintiff’s epidemiologists to agree that epidemiology was really only a matter of statistics. While witnesses resisted this characterization,
[T]hey also readily acknowledged statistics cannot prove cause, and, somewhat less readily, agreed that epidemiology itself cannot prove cause.7(p680711157)
The lawyers noted,
Once the jurors were conditioned to look askance at epidemiology because of its lack of scientific criteria, they seemed to make the leap that the experts would not make, and to equate epidemiology with statistics. The jurors distrusted statistics: in fact, 1 juror . . . said flatly that she did not believe conclusions which were based on statistics. All the jurors said that the plaintiffs’ charts showing the worst statistics from the Surgeon General’s reports were ignored, and 1 juror . . . dismissed the charts by describing the information contained in them as mere answers to questionnaires.7(p680711157)
Once doubt entered the minds of the jurors, the defense witnesses’ testimony reinforced it. In one trial, Reynolds used, along with a toxicologist, an addiction expert and a pathologist, local treating physicians (a cardiologist and an oncologist) who were well-grounded in the plaintiff’s particular medical history. While the jurors generally acknowledged that the plaintiff did have lung cancer, most agreed with the defense toxicologist that smoking was a "risk factor" or, at most, a "contributing or significant cause" but not the cause of the disease or always the cause of the disease. One juror equated smoking with other risky behavior, such as drinking and driving. Another stated that "if the cigarette manufacturers believed that cigarettes cause cancer they would take them off the market."7(pp680711201–680711217)
Analyzing their success in the second case, Kueper v RJ Reynolds, the lawyers reported that witnesses insisting that general causation had not been established were credible because of their personal qualities rather than their qualifications or the coherence of what they had to say. The jurors rated a particular physician as the "most impressive witness" for the defense even though his testimony was not viewed as being the most helpful in coming to their final decision. He was credited with the most trustworthy "demeanor" because he did not stutter and had good "body language." The jury disliked the plaintiff’s counsel, and admired this witness because "he was able to give back to [plaintiff’s counsel] everything that he was able to dish out." Doubts raised on the link between smoking and cancer apparently made the jurors receptive to alternative explanations for the plaintiff’s cancer, explanations that the tobacco lawyers acknowledged were quite weak.11
The jurors’ reasons for failing to credit the testimony regarding causation resonate with the pre-1964 controversy within the scientific community. Contemporary chronic disease epidemiology was rejected in favor of a "commonsense" view of causation that assumed the existence of an unidentified pathogen that was both the necessary and sufficient cause of the cancer at issue in both cases. While it is perilous to generalize from 2 jury verdicts (although there were only 9 such verdicts in tobacco cases through 1995), they suggest, at a minimum, that the advances in epidemiology symbolized by the 1964 Surgeon General’s Report are not so obvious to a lay audience as to put the legal question of the causal link between smoking and lung cancer beyond dispute in the courtroom.
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SOURCES OF DIFFICULTY AND POSSIBLE APPROACHES |
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TOPABSTRACTINTRODUCTIONEXAMPLES FROM TOBACCO LITIGATIONSOURCES OF DIFFICULTY AND...References |
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Someone who is being sued for damages can choose to contest virtually every proposition that the plaintiff must establish in order to prevail. A party may ask the judge to take "judicial notice" of a proposition, but this is traditionally limited to largely indisputable facts—for example, that the sun rises in the east and sets in the west. Normally, defendants in a civil case would not dispute a proposition as well-established as the causal link between smoking and cancer for fear of looking foolish or alienating the jury or spending resources foolishly. But tobacco companies adopted a "scorched earth" theory of litigation that produced, among other things, the potential advantage of disputing, before 12 citizens, the epidemiological equivalent of the proposition that the earth is round. Their apparent success might encourage other defendants to vigorously challenge expert testimony relating to less well-known risk factors to emphasize that "risk" does not equate to the commonsense understanding of "cause."
Each trial is a unique event. A jury knows only the evidence placed before it. Each jury arrives at a unique set of conclusions, and subsequent juries are not normally permitted to know those conclusions, much less to give them weight in their own deliberations. If the defense lawyers sense that the plaintiff’s lawyer did not anticipate the possibility of an attack on general causation, they may decide that it is propitious to launch the attack. Had the plaintiff’s evidence been stronger on the point, the defendant would have been free to not contest the point.
If the defendant chooses to contest the point that cigarette smoking can cause cancer, the evidence will be introduced through the testimony of an expert witness. The expert need not be an epidemiologist—indeed, the experts who have testified that "we don’t know" whether cigarettes cause cancer were practicing physicians or toxicologists, not epidemiologists. Although within the scientific and medical community there are probably 1000 who believe that cigarette smoking may lead to cancer for every 1 who has genuine doubts on the subject, the jury is not going to be exposed to 1000 witnesses for the plaintiff against a single witness for the defendant. The plaintiff could not afford to put on this many witnesses and the judge would (correctly) exclude it as "cumulative"—parties are not allowed to call witnesses, particularly expert witnesses, to simply repeat the same point. The result is that the jury may see 2 witnesses for the plaintiff who say cigarettes cause cancer and 2 for the defendant who say "we don’t know that." Jurors who like and trust the defendant’s witnesses (or dislike the plaintiff’s) may end up endorsing a proposition in the jury room—"we really don’t know if cigarettes cause cancer"—that they would never endorse if they saw their 14-year-old child lighting a cigarette.
While it is unlikely that a jury would find for the defendant solely because of doubt about the connection between cigarettes and cancer, such doubt might well fuel the more reasonable concern about whether smoking caused this particular plaintiff’s cancer. It might also assuage the conscience of a juror who decides against the plaintiff on the grounds that the plaintiff could have stopped smoking, but chose not to. If the trial devolves into a morality play pitting someone who did not stop smoking against the company that sold the cigarettes, blaming the smoker for being weak becomes easier if it is uncertain that the illness came from smoking.
That juries may accept "junk" as opposed to sound science is a price we pay for resolving legal disputes through the presentation of live testimony to a panel of randomly selected amateurs. This system is committed to the empirically unverifiable, if not doubtful, proposition that truth will emerge from cross-examination and argument. Moreover, the "truth" that tort law seeks—that the defendant’s conduct is a "but for" (necessary) cause of plaintiff’s injury—has little relevance to the prevention or treatment of disease. The sophisticated treatment of complex phenomena (such as the etiology of disease) does not rank among the many virtues of our dispute resolution system. Jury decisions do not build upon one another, and the appellate court’s role is limited to determining whether an individual jury verdict is legally possible rather than factually and legally correct. Repeat participants in the system learn to predict how juries are likely to behave and to adjust their conduct accordingly. Thus, the vast majority of all cases settle. But a firm that is sued repeatedly and believes settlement is a poor approach—for example, a tobacco company—may succeed in persuading 12 laypersons of a proposition that few, if any, professionals would ever endorse.
These characteristics of the legal system pose a challenge to plaintiffs in all toxic exposure cases, not just tobacco. Defense lawyers are free to argue that the plaintiff’s expert is testifying in terms of risk factors rather than cause while the jury’s task is to determine whether the defendant’s activity caused the plaintiff’s injury. They are very likely to do so in the typical exposure case in which, unlike tobacco, the plaintiff cannot be blamed, but in which, also unlike tobacco, the evidence of causation may appear more equivocal. Despite the logic of meeting this concern by either expanding a court’s view of what it might judicially notice (declare to be a "fact") or asking judges but not jurors to find scientific facts, such remedies probably represent too great a departure from our constitutionally embedded tradition of jury autonomy to win ready acceptance.
An intermediate approach might ameliorate the problem. Courts could instruct juries on the very issue that creates such difficulties: translating testimony about risk factors into conclusions about legal causation. In addition to deciding whether an expert witness should be permitted to testify concerning the relationship between toxic exposure and injury, a judge should instruct the jury about how to translate the expert’s opinion about risk factors into legal conclusions about causation. If the plaintiff has introduced evidence that the toxin increases the risk of the disease occurring by a ratio of 2 to 1 or greater, the judge should tell the jury that this testimony, if believed, provides sufficient basis for them to conclude that the defendant’s behavior caused the plaintiff’s injury.
Courts typically leave the task of informing the jury about the connection between risk factor and causation to the advocates for each side. Unfortunately, in this situation it is the defendant’s argument—that risk does not equal cause—that resonates with jurors’ everyday understanding of those concepts. Courts should respond to this difficulty by clarifying to the jury that in a case involving sustained exposure, expert testimony about risk factors, if believed, provides sufficient evidence to meet the law’s concern that the defendant’s action caused the plaintiff’s injury.
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Acknowledgments |
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This article was funded by the National Cancer Institute (grant 1 R01 CA87571).
Note. The contents of this article are solely the authors’ responsibility and do not necessarily represent the official views of the National Cancer Institute or National Institutes of Health.
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Footnotes |
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Peer Reviewed
Contributors
D. Givelber originated the study and led the writing. L. Strickler researched, analyzed, and summarized the information from the tobacco documents.
Accepted for publication April 22, 2005.
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References |
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TOPABSTRACTINTRODUCTIONEXAMPLES FROM TOBACCO LITIGATIONSOURCES OF DIFFICULTY AND...References |
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1. 509 US 579 (1993).
2. Parascandola M. What is wrong with the probability of causation? Jurimetrics. 1998;39:29–44.
3. Black B, Lilienfeld DE. Epidemiological proof in toxic tort litigation. Fordham Law Rev. 1984;52:732–785.[Web of Science]
4. Sanders J. From science to evidence: the testimony on causation in Bendectin cases. Stanford Law Rev. 1993;46:1–86.[CrossRef][Web of Science][Medline]
5. Talley C, Kushner H, Sterk C. Lung cancer, chronic disease epidemiology, and medicine, 1948–1964. J Hist Med. 2004;59:329–374.
6. Tactical proposal revisited. August 16, 1988. Bates no. 2048242640/ 2673 at 2048242657. Available at: http://tobaccodocuments.org/bliley_pm/27614.html. Accessed October 7. 2004.
7. Jones Day Reavis & Pogue. Report on Galbraith v RJ Reynolds. January 28, 1986. Bates no. 680711146/1223. Available at: http://tobaccodocuments.org/tplp/680711146-1223.html. Accessed October 21, 2004.
8. Galbraith v RJ Reynolds Tobacco. No. 144417, Superior Court, Santa Barbara County, Calif (1985).
9. Kueper v RJ Reynolds Tobacco. No. 91-L-734, Circuit Court, St. Clair County, Ill (1993).
10. Training materials for counsel in smoking and health litigation vol. VI 1982: defendants’ jury work, defendants’ strategy. No date. Bates no. 282012884/3316. Available at: http://tobaccodocuments.org/tplp/282012884-3316.html. Accessed October 21, 2004.
11. Richard Stuhan. Analysis of postverdict juror interview in Kueper v RJ Reynolds Tobacco Company et al. July 2, 1993. Bates no. 536480002/ 0286 at 536480009/0010. Available at: http://tobaccodocuments.org/tplp/536480002-0286.html. Accessed October 21, 2004.
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