The Judge and The Historian

Ramses Delafontaine

Historians as Expert Witnesses Ramses Delafontaine


An overview of Historians as Expert Witnesses in U.S. Tobacco Cases.

This website presents the profiles of 50 American historians who have been involved in 314 cases as an expert witness in tobacco-related litigation in the United States from 1986 until April 2014.

I have made a quantitative and qualitative analysis of their involvement.

Through close reading of court documents and by systematically analyzing whether the historians involved mention their litigation work on their website and checking whether the historian in question had published peer reviewed work on the subject, has brought me to four general conclusions.

1. Of those 50 historians, 4 have testified for the plaintiffs; mostly individual smokers. Those four are Allan Brandt, professor at Harvard; Luis Díaz-Hernández, from the Pontifical Catholic University in Ponce, Puerto Rico; Louis Kyriakoudes, from the University of Southern Mississippi; and Robert Proctor, professor at Stanford. Multiple historians on both sides have made more than $500,000 for their litigation-related work.

2. Of the historians who served as expert witnesses for the defense, only two of the 46 had ever published peer reviewed articles when they were hired to write an export report and present testimony in court on the history of tobacco and the tobacco industry. Nor have these historians published on the subject after submitting their expert report nor after presenting their testimony in court, for that matter. The historians who have testified for the plaintiffs have extensively researched and published on the history of tobacco, except for Luis Díaz-Hernández. For example Allan Brandt’s The Cigarette Century and Robert Proctor’s Golden Holocaust, are standard works on the history of the cigarette and it’s industry.

3. Historians who have testified for the tobacco industry did not research the industry’s secret documents who have become available through litigation. These documents present in detail how tobacco companies had created a scientific controversy on the link between smoking and disease, while continuing an aggressive marketing campaign for their product that ignored and denied that a cigarette held such dangerous qualities.

4. There is a critical and acute problem with transparency on the involvement of historians in tobacco litigation. Only a few of these 50 historians openly state on their website or their online curriculum that they have been involved in tobacco litigation. I define “openly acknowledging” fairly strictly because I defined “openly” as mentioning it on their website or online curriculum. Because that are the places where their fellow historians and the general public will look for information on a historian when they are reading one of the historian’s books or articles. The fact whether they have witnessed in tobacco litigation does matter, as does the fact that they have not published on these subject matters. Historians represent the Universities were they work and those Universities are the guarantee that historians present decent and professional historical research. Historians who are willing to defend an industry that sells a product that kills 6 million people each year worldwide according to the WHO should be open about their engagement in court.

When those historians claim they do not testify as academics, but as independent consultants, this can be their inclination but it is not the reality in most cases as most expert witnesses to date are academics who are in part hired for their research as well as their credentials as an academic. The judge and the jury will consider them a professor of history at a University, not an independent historian. Moreover, the next day they are again an academic and legitimize themselves on that image to legitimize their other work.

Historian John Burnham gave another counterargument to historian Jon Wiener’s accusations of a lack of transparency by historians who are witnessing for the tobacco companies in the Nation of March 2010. Burnham argued that “[t]he demand that those historians who have worked for one side or the other stand up and be counted is therefore not legally possible, and to condemn silence on this point is ridiculous.” Burnham, who has been an expert for the industry himself, makes an argument which is valid when you leave out the part were the expert witness signs his contract with legal counsel of the tobacco companies. Nobody is forcing them to sign those agreements, in other words how is it that historians who testify for the plaintiffs can publish their research while those who testify for the tobacco companies cannot? It is a choice.

I argue that most of the historians who have been involved as expert witnesses for the tobacco industry have been in it for the money and have sold their professional integrity as a historian and an academic. Moreover, they harm the public image of the historical discipline, they furthermore harm the history of an industry that has, by any means it could and can, sold people a nicotine delivery device that in the end will kill their customers. For more on the decision that found that the tobacco industry had engaged in a scheme to defraud the public for over 50 years, see the verdict of Judge Kessler from 2006 in the landmark case US v. Philip Morris.

My argument in this controversy is that historians make a choice when testifying and that other historians and the public have a right to know, especially when reading their other work. As how historians stand on the tobacco industry, can influence their other work.

President Kennedy once said: “The very word “secrecy” is repugnant in a free and open society”, it is in that spirit that I provide these Expert Witness Profiles. I can only hope that these pertinent facts will induce controversy and debate amongst historians.

Kind Regards

Ramses Delafontaine

09/08/2013 [amended]