The Judge and The Historian

Ramses Delafontaine

Historians as Expert Witnesses Ramses Delafontaine

Fred V. Carstensen

Fred Carstensen

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Carstensen is an economic historian who focuses on political issues concerning economic history. He has served as an expert witness in the landmark case Cipollone v. Liggett. In his deposition for Cipollone, he acknowledged having made $85,000 with his work as an expert witness for the tobacco industry.[1] Under cross-examination he was forced to admit that he had not fully investigated the impact of tobacco advertising and product placement in movies on the common knowledge of health hazards connected with cigarette smoking. Carstensen argued that it was impossible not to be fully aware of the dangers of smoking. He based his arguments on articles from popular newspapers and magazines which discussed tobacco related issues. The plaintiff’s counsel was able to prove and make Carstensen acknowledge during cross-testimony that those articles on smoking made up for less than one percent of all the articles published in these magazines.[2] This made it very hard for the defence to maintain that everyone had been fully aware of the issue because of the relative small number of these articles and without even considering the influence of tobacco publicity and disinformation distributed by the tobacco companies.[3]

Despite his problematic testimony, Carstensen has continued to offer the opinion that common knowledge on the risks of smoking was widespread. He has, furthermore, argued that experts who have testified on behave of smokers agree with the statement that smokers were fully aware of the dangers from the 1930s onward.[4] In addition, Carstensen maintains that the verdicts in favour of the plaintiffs in tobacco litigation are the result of a changed legal standard in product-liability litigation. According to Carstensen, the awareness-argument has been removed as valuable evidence and has no influence anymore on the verdict.[5] The fact that many cases in recent tobacco litigation are lost by the plaintiffs because they started smoking despite their knowledge of the dangers for example, in ongoing Engle Progeny cases, proves that the legal standard of awareness in product-liability cases has not been abandoned as Carstensen would have us believe. On the contrary, the “personal choice” argument or “awareness” argument remains a key legal defence strategy used by the tobacco industry’s legal counsel.


[1] Cross-examination of Fred Carstensen, April 7, 1998, Cipollone v. Liggett Group. LTDL. Bates Number: CARSTENSENF040788PM. Accessed 31 Oct 2014, 7592 ff.

[2] Brandt, Allan. 2007. The Cigarette Century. The Rise, Fall and Deadly Persistence of a Product that Defined America. New York: Basic Books, 342.

[3] Cross-examination of Fred Carstensen, as n. 1, 7713 ff.

[4] Personal correspondence with prof. Carstensen.

[5] Personal correspondence with prof. Carstensen.