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Tobacco manufacturers’ defence against plaintiffs’ claims of cancer causation: throwing mud at the wall and hoping some of it will stick
  1. Sharon Milberger1,
  2. Ronald M Davis1,
  3. Clifford E Douglas2,
  4. John K Beasley3,
  5. David Burns4,
  6. Thomas Houston5,
  7. Donald Shopland6
  1. 1Center for Health Promotion and Disease Prevention, Henry Ford Health System, Detroit, Michigan, USA
  2. 2Tobacco Control Law & Policy Consulting, Ann Arbor, Michigan, USA
  3. 3Center for Tobacco Use Prevention and Research, Michigan Public Health Institute, Okemos, Michigan, USA
  4. 4University of California, San Diego, School of Medicine, San Diego, California, USA
  5. 5OhioHealth Nicotine Dependence Program, Columbus, Ohio, USA
  6. 6Ringold, Georgia, USA, US Public Health Service (retired)
  1. Correspondence to:
 Sharon Milberger
 ScD, Center for Health Promotion & Disease Prevention, Henry Ford Health System, One Ford Place, 5C, Detroit, MI 48202, USA; smilber1{at}hfhs.org

Abstract

Background: In the late 1990s and the early part of this decade, the major US cigarette manufacturers admitted, to varying degrees, that smoking causes cancer and other diseases.

Objective: To examine how tobacco manufacturers have defended themselves against charges that their products caused cancer in plaintiffs in 34 personal injury lawsuits, all but one of which were litigated between the years 1986 and 2003.

Methods: Defence opening and closing statements, trial testimony, and depositions for these cases were obtained from the Tobacco Deposition and Trial Testimony Archive (http://tobaccodocuments.org/datta/). All available defence-related transcripts from these cases were reviewed and a content analysis was conducted to identify common themes in the defendants’ arguments.

Results: After review of the transcripts, defendants’ arguments were grouped into seven categories: (1) there is no scientific proof that cigarette smoking causes lung cancer; (2) the plaintiff did not have lung cancer as claimed; (3) the plaintiff had a type of lung cancer not associated with cigarette smoking; (4) the plaintiff had cancer that may have been associated with cigarette smoking or smokeless tobacco use, but tobacco products were not to blame in this particular case; (5) the plaintiff had cancer that may have been associated with cigarette smoking, but the defendant’s cigarette brands were not to blame; (6) the defendant’s cigarettes (or smokeless tobacco) may have played a role in the plaintiff’s illness/death, but other risk factors were present that negate or mitigate the defendant’s responsibility; and (7) the defendant’s cigarettes may have been a factor in the plaintiff’s illness/death, but the plaintiff knew of the health risks and exercised free will in choosing to smoke and declining to quit. Use of the argument that smoking is not a proven cause of lung cancer declined in frequency during and after the period when tobacco companies began to publicly admit that smoking causes disease. Corresponding increases occurred over time in the use of other arguments (namely, presence of other risk factors and “free will”).

Conclusions: Despite the vast body of literature showing that cigarette smoking causes cancer, and despite tobacco companies’ recent admissions that smoking causes cancer, defendants used numerous arguments in these cases to deny that their products had caused cancer in plaintiffs. The cigarette companies, through their public admissions and courtroom arguments, seem to be saying, “Yes, smoking causes lung cancer, but not in people who sue us”.

  • B&W, Brown & Williamson Tobacco Corporation
  • BAC, bronchioloalveolar carcinoma
  • BAT, British American Tobacco
  • DATTA, Tobacco Deposition and Trial Testimony Archive
  • RJR, RJ Reynolds
  • USSTC, US Smokeless Tobacco Company
  • MeSH
  • tobacco
  • smoking
  • tobacco industry
  • legal cases
  • personal injury

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Footnotes

  • Sponsors: National Cancer Institute, American Legacy Foundation

  • Disclosures: Dr Davis has served as an expert witness in several tobacco-related lawsuits. He has derived no personal income from this work, but his employer (Henry Ford Health System) has charged a fee to secure compensation for his time lost from work due to his service as an expert witness. As president of Tobacco Control Law and Policy Consulting, Mr Douglas has provided service and consultation to law firms that have filed lawsuits against tobacco companies, including acting as co-counsel in some of those cases. Dr Houston has served as an expert witness in multiple tobacco-related lawsuits and has derived no personal income from this work. Dr Burns has served as an expert witness in multiple tobacco-related lawsuits and has derived personal income from this work.

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