And now for something completely different…but depressingly the same in some ways.
Longtime readers—and I do mean longtime—might remember from several years ago a certain case adjudicated before the Vaccine Court. I’m referring, of course, to the Autism Omnibus. In Autism Omnibus, some 4,800 claimants were bringing action seeking compensation for “vaccine injury” characterized by autism. Basically, it was a large number of parents who thought vaccines had caused their children’s autism seeking compensation from the Vaccine Court, and they implicated the MMR and thimerosal-containing vaccines, depending on the family. Because of the large number of cases and since all of the cases revolved around the same findings of fact a series of “test cases” were heard. These test cases were, in essence, the best cases the claimants’ lawyers could come up with to show that vaccines caused autism. If these cases were considered meritorious, then the rest of the 4,800 cases would be allowed to proceed. The whole thing was a circus, with antivaccine legislators weighing in and a wide variety of quacks testifying with some truly bad science and wild ideas of how vaccines caused autism. Basically, the claimants relied on emotional appeals and pseudoscience, which is why all the test cases were ultimately denied compensation.
If there was one thing about the Autism Omnibus that was depressing, it was the plethora of “experts” who testified for vaccines causing autism, including Arthur Krigsman, Karin Hepner, Vera Byers, Ronald C. Kennedy, and Marcel Kinsbourne. I was thinking of this case when I came across a study in The Laryngoscope, a journal of otolaryngology about expert witnesses. A frequent claim by antivaccinationists is that vaccine manufacturers are like tobacco companies in the way they suppressed and twisted data for decades, hired PR companies and lawyers to protect themselves, and, of course, putting all sorts of doctors and scientists on their payrolls, to be trotted out at trials and hearings to deny that tobacco was dangerous or, later when even tobacco companies couldn’t entirely deny the health effects of their products, to minimize how harmful tobacco was. However, it’s not the vaccine manufacturers who are like tobacco companies. It’s the antivaccinationists themselves. On the one hand, there were quacks testifying that vaccines cause autism in federal court. In this study by Robert K. Jackler, MD, Testimony by otolaryngologists in defense of tobacco companies 2009–2014, there are otolaryngologists testifying for the defense in suits brought against tobacco companies.
In 1999, a Florida class action suit (Engle v. Liggett) resulted in a huge award ($145 billion). The monetary reward was reversed on appeal, but the litigation led to a Florida Supreme Court decision in 2006 that upheld the Engle jury findings of widespread wrongdoing by tobacco companies. As a result, individuals could sue without the need to relitigate settled issues, such as the addictiveness of nicotine, the dangers of tobacco, and the long sordid history of tobacco company dissembling, denialism, bad science, and legal thuggery. That is why smokers and companies were left to fight out thousands of individual cases against tobacco companies. Because these cases have focuses mostly on whether tobacco caused the plaintiff’s disease, expert medical testimony has been critical to them. By 2015, 120 cases have been decided, 70% in favor of plaintiffs. Most, as you might imagine, involved lung cancer, but a fraction involved head and neck cancer.
So Dr. Jackler plowed through court records of many of those cases. Specifically:
Data sources included expert witness depositions and trial testimony of otolaryngologists employed by the tobacco industry via its law firms in defense of lawsuits by smokers. Cases involving head and neck cancer were retrieved from as early as the late 1940s, but the emphasis of the study is on Florida cases between 2009 and 2014. The legal documents were retrieved via online databases including the Tobacco Deposition and Trial Testimony Archive collection via the University of California at San Francisco Legacy database (legacy.library.ecsf.edu) and tobacco documents online (tobaccodocuments.org/datta). These depositions and trial testimony are in the public domain and readily available online. Links to the documents cited in the text are provided to allow the interested reader to view the entire original document.
News reports relating to recent Florida tobacco cases were retrieved via Google and Google News using search terms such as tobacco litigation, Florida tobacco cases, and Engle progeny cases—as well as specialty terms such as larynx, pharynx, oral, throat, head & neck, otolaryngology, and otolaryngologist. Case selection criteria included: 1) litigation in Florida against a tobacco company alleging smoking-related malignancy of the upper aerodigestive track; 2) board-certified otolaryngologist providing compensated testimony on behalf of one of the three major US tobacco companies (R.J. Reynolds, Philip Morris, and/or Lorillard); and 3) trial date between 2009 to 2014.
He then assessed the medical testimony to Jackler found nine cases of upper aerodigestive tract cancer involving testimony from six otolaryngologists serving as expert witnesses for the tobacco industry between 2009 and 2014. The cases included laryngeal cancer (5), esophageal cancer (2), oral cancer (1), and lung cancer (1). The expert witnesses included senior otolaryngologists who had been Board certified in 1974 to one who was Board certified in 1995. All but one were otolaryngologists in private practice, and while one was university-based. None of them had actually done a fellowship, and only two of them specialized in head and neck. (It used to be possible to do head and neck surgery after a general surgery residency, something that is much more difficult to achieve now.) The number of cases worked on for tobacco companies, including trial testimony, deposition, and/or request to review the case, per surgeon ranged from three to more than twenty.
These otolaryngologists repeatedly gave sworn testimony at odds with what science and evidence show in order to blame something other than tobacco for the plaintiffs’ head and neck cancers. They blamed everything but tobacco, including things like alcohol, asbestos, cleaning solvents, gasoline fumes, genetic predisposition, the human papilloma virus, mouthwash, and salted meats. Yes, these things do contribute to head and neck cancer, but compared to tobacco they are are minor contributors to the disease. Some of the cases described in this paper defy belief in the utter contempt the “expert” witness showed for the jury by expecting them to believe the unbelievable.
How did they do it? They used typical tobacco company denialist tactics: Sowing uncertainty and doubt about the medical connection between tobacco and cancer in individual cases. Here’s a one representative case:
In Mack v R.J. Reynolds (2010), the plaintiff started smoking at age 16, had a 40- to 80-pack history, and developed laryngeal cancer and chronic obstructive pulmonary disease.[10, 11] He had quit smoking some 10 to 15 years prior to diagnosis. In witness 1’s deposition, he opined, “In this case he has an etiological soup” and provided an extensive list of potential causes (Table 3) (Fig. 1). He went on to say: “Doctors are lazy . . . . we don’t take great toxicological histories.” When pressed by plaintiff’s counsel regarding some of the more exotic causes on the list, he vehemently defended their inclusion. For example, regarding gasoline, he replied: “I can tell you that there are many, many, many, many articles talking about gasoline and larynx cancer. It is not just one. Many, many, many.” Witness 1 goes on to say that it is “common knowledge.” The witness went on to say, “I do not know what caused his larynx cancer. My opinion is that Mr. Mack, indeed, had squamous cell carcinoma of the larynx that was most certainly not due to smoking.” He based this opinion by stating that: “After you have quit for 10 years . . . risk of cancer of the larynx approaches never smokers.” He went on to say, “And I am not entirely certain what it was due to, but he had a number of occupational exposures to known carcinogens that are known to produce larynx cancer.”
It is not true that after ten years of having quit the risk of laryngeal cancer approaches nonsmokers. As cited in the paper, the risk of head and neck cancer remains elevated three- to four-fold above the risk in those who never smoked, even worse in people like the plaintiffs, who each had a very heavy smoking history of up to 80 pack-years. All of the testimony very closely resembled the testimony above, and I encourage you to read the article, which is not behind a paywall, but here’s one more:
In the 2011 case, Blitch v RJ Reynolds, the plaintiff died of esophageal cancer in 1998. When asked to allocate among the various risks, witness 3 stated: “She drank significantly, she smoked. She did have a prior HPV cancer. And she does have reflux. . . . It is difficult for me to determine how to allocate how much risk there is for each entity. However, there are certain studies that where they have tried to factor out smoking and look at alcohol use and these studies have shown that alcohol by itself can cause esophageal cancer, that HPV infection is associated with the causation of esophageal cancer, and reflux can cause esophageal cancer. So I can’t determine in Ms. Blitch’s case specifically which one has more weight or if they are all similar effect.”
Even though the HPV status of the patient’s esophageal cancer was unknown, because she had cervical cancer decades earlier, witness 3 opined there was a high probability that she also had HPV of the head and neck.
See the technique? Each time, the expert witness tries to imply that it’s not possible to tell which risk factor caused the patient’s cancer, when it is known that tobacco is by far the most potent risk factor for developing head and neck cancer. Failing that, they try to make the jury believe that the patient had other risk factors (like HPV infection in their oropharynx) even when it is unknown if they had it. Because the burden of proof in a civil case is more likely than not (>50%), expert witnesses for the tobacco companies routinely asserted that they believed it was more likely than not that tobacco didn’t cause the plaintiff’s cancer.
In this, Jackler notes, they followed a script very carefully:
Comments made in the legal records indicate that hired experts were specifically engaged “to look at risk factors.” Testimony revealed that tobacco defense lawyers sometimes went so far as to write the opinion for the hired expert. The resulting testimony from multiple experts reads like peas in a pod—well coached and faithful to the tactical narrative that there are many, many causes of head and neck cancer—and that factors other than smoking must have caused the plaintiff’s disease. During deposition and trial testimony, these witnesses cited a wide variety of nontobacco causes for the cancers, characterized by one witness as an “etiological soup” (Table 3).
The tobacco industry strategy is based upon the assumption that juries may be swayed by long lists of theoretical causes, which tend to resonate with the public’s belief that a wide variety of environmental, occupational, and dietary exposures cause cancer. An obvious fallacy of this argument 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. 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. Among habitual smokers, it is not credible to opine that rare and hypothetical causes, taken singly or as a lengthy list, are more likely than causative than tobacco to a degree remotely approaching > 50%.
Jackler also notes another aspect of how these “experts” gave testimony. They routinely would go outside of their area of expertise, testifying, for example, about environmental and industrial toxicology, disciplines not typically within the expertise of an otolaryngologist or even most physicians. They would then refuse to agree that nicotine is addictive, making the excuse that they don’t have expertise in that area. Not surprisingly, tobacco companies frequently argue that smoking is a choice and that a smoker gets cancer due to personal choice rather than addiction. None of this stopped witnesses from denying the validity of widely accepted authoritative sources, such as Surgeon General’s reports. Indeed, another sordid part of this story is the number of psychologists who are willing to be shills for tobacco companies and testify that nicotine is not addictive.
Testifying for tobacco companies is also quite lucrative, particularly if you have a lot of honors and authority to sell. One such witness, Willard E. Fee Jr. (seriously, that’s his name), is a professor emeritus of otolaryngology at Stanford, served 20 years as his department’s chairman and also served a term as president of the American Head and Neck Society, his field’s leading professional association. Dr. Fee collected $100,000 for one case. He’s been doing this since 1976, having given depositions in over 100 cases. Others include Merrill A. Biel, an adjunct assistant professor of otolaryngology at the University of Minnesota-Twin Cities, and Kim R. Jones, a former associate professor at the University of North Carolina at Chapel Hill. Both are in private practice.
Not surprisingly, the tobacco industry is not pleased by Dr. Jackler’s paper. Its only response was that Dr. Jackler’s critique has “no place in our judicial system” and to accuse him of “undisclosed ties to plaintiffs’ lawyers.” Dr. Jackler denies such charges, although his study was funded by the Stanford Research into the Impact of Tobacco Advertising. Personally, I’d argue that Dr. Jackford’s critique has every place within our judicial system and in the peer-reviewed medical literature. Unfortunately, such behavior by doctors is not unknown. Indeed:
The current president of the American Head and Neck Society, Dennis H. Kraus, said he had trouble understanding how professional otolaryngologists could offer such testimony against tobacco plaintiffs.
“I wish I were shocked,” said Dr. Kraus, director of the Center for Head and Neck Oncology at the New York Head and Neck Institute. “Unfortunately I’m not.”
I understand. Money is a powerful motivator. Doctors are human beings; they are not immune to the lure of a lot of cashe for not a lot of work. If you don’t mind cross examination and challenging questions from opposing lawyers during depositions and especially if you come across as authoritative and never in doubt, you can make a boatload of money as an expert witness. Of course, it helps your credibility if you’re a gray-haired senior doctor with a confident demeanor, or at least a mid-career doctor. This sort of thing is not for early career doctors; they lack the gravitas and concomitant credibility to juries.
I’ll conclude by asking the same question that Dr. Jackler addresses, namely whether it is ever ethical for a physician to testify on behalf of the tobacco industry. Given that the product sold by the tobacco industry is, by its very nature, addictive and and deadly, causing cancer, chronic obstructive pulmonary disease, and heart disease, I would argue that, no, it is never ethical for a physician to testify in such cases on behalf of tobacco companies. It’s particularly disturbing to see doctors so enthusiastically participating in the denialist campaigns of tobacco companies in court. Unfortunately, the number of doctors who testify for the antivaccine movement is few, nearly all cranks. We need to remember that there are far more doctors, none of them cranks, who are willing to prostitute themselves to tobacco companies. Sadly, it’s hard not to wonder whether things have changed as much as we’d like to think since the 1950s