Historians as Expert Judicial Witnesses in Tobacco Litigation by Ramses Delafontaine

Author:Ramses Delafontaine
Language: eng
Format: epub
Publisher: Springer International Publishing, Cham

Through the argument of “universal awareness” the tobacco companies again succeeded in eliminating their civil liability and consequentially any claims of negligence. “There is no such thing as a safe cigarette”, although manufacturers are investing greatly in research that attempts to realize just that.195 The tobacco industry has claimed that if the individual smoker did not realize smoking was dangerous, he or she was frankly too stupid to be protected. Rational choice theories which argue that an individual behaves in a reasonable manner and acts through planned behaviour has had a considerable influence on health belief models. Theories of reasoned action present the individual as a rational decision maker instead of a human being who bases his decision on a multi-level choice process. According to health advocates this rational choice model has served corporate interest.196 The rational choice model is also based on an adult choice, while many smokers start smoking as a child or during puberty, when they are especially vulnerable to addiction.197 Health advocates argue that there is an “over-reliance on individual and interpersonal rational choice models” in the legal argumentation of the tobacco industry.198

Another argument the tobacco industry has made in court, is that “tobacco advertising has a relatively weak “share of voice” in the marketing environment and is a weak force in affecting smoking behaviour. Tobacco marketing is “limited in its ability to persuade”, according to the industry.199 By contrast health advocates concluded that: “[a]s the data make clear, and contrary to the claims of the defence witnesses, the tobacco industry has been a major advertiser in the United States and globally”, claiming that cigarette advertisements were very successful.200

Other tobacco tactics are: arguing that the plaintiff does not have cancer or the disease the plaintiff claims to have, that his or her disease or cancer is not associated with smoking, that in the particular case of the plaintiff smoking is not the cause of the disease, that other cigarette brands are to blame and not that of the defendant, that other risk behaviour is responsible for the disease: such as the plaintiff‘s overweight, that the plaintiff is genetically prone to develop cancer, or that the plaintiff has a general unhealthy lifestyle, etc..201 The industry’s lawyers have to find only one probable argument that will convince the jury or the judge that the plaintiff’s disease is not linked to smoking, and the liability of the tobacco company is neutralized. Defence counsel will always seek to downplay the tobacco risk. Health activists have titled this tactic as: “throwing mud at the wall and hoping some of it will stick.”202 The industry’s argumentation always comes down to the conclusion that smoking is simply “a matter of personal choice and willpower.” A Philip Morris spokesman testified in Engle that “most people who want to quit smoking can quit.”203 The arguments made by the tobacco industry are multiple but can be rebuffed by simple facts.204

The strategies by the plaintiff concentrate on how successful the controversy created by the tobacco industry turned out to be.

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