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UK: judge says advocacy links taint witnesses
  1. David Simpson

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    For any campaign for social change, especially if it faces opposition from those with vested interests in preserving the status quo, an obvious strategy is to recruit well known, well respected people who can show support for the cause. Those who are not only highly regarded in society, but are known experts in the subject of the campaign are typically invited to be members of the board, or to take some other, often more visible role. Sometimes such people themselves are founders of new campaigns. Amnesty International, for example, was founded by a lawyer who was passionate about human rights.

    In the case of the largest preventable cause of disease, disability, and premature death in the UK, Action on Smoking and Health (ASH) was founded by one of the oldest and most prestigious professional organisations in the country, the Royal College of Physicians of London. The fellows of this illustrious body, highly respected experts in their field, would be just the sort of people one might expect to see adjusting their half moon, gold framed spectacles as they took the stand as expert witnesses in a courtroom, or sat at an ASH board meeting giving important medical guidance and backing to the organisation’s work.

    However, a senior judge in Scotland has now made clear that when it comes to appearing in cases against the tobacco industry, especially a company that continues to contend that smoking has still not been proved to cause lung cancer, the testimony of medical expert witnesses seems to be devalued if they have an association with ASH. The judge, Lord Nimmo Smith, made his remarks when delivering his verdict in a long running product liability lawsuit brought by Margaret McTear, whose husband died of lung cancer after many years of smoking cigarettes made and marketed by Imperial Tobacco Ltd (ITL).

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    UK: Camel York event The difficulties of trying to enforce a total ban on tobacco brand promotion were illustrated by the Camel logos clearly visible at a youth friendly musical event held in the centre of York earlier this year. The complex history of ownership and management of the Camel brand, and minor exemptions in tobacco control law with regard to brand stretching, make examples such as this difficult to control. Lawyers for trading standards officers, the enforcement agencies, have been unwilling to proceed in more striking cases, such as the Benson & Hedges logos in a men’s magazine reported last year ( see Tobacco Control 2004;13:325).

    No less an expert than Sir Richard Doll had spent a significant time in the witness box to confirm that smoking causes lung cancer. Interestingly, the judge made a point of mentioning that Sir Richard had been the only witness not to take up his offer to be seated while giving evidence, an observation presumably intended as a mark of respect—Sir Richard was 90 at the time. But he had less respect for Sir Richard’s show of impartiality, noting his (and other expert witness’s) association with ASH. Informal, senior legal opinion in Scotland suggests that on the question of association with campaigning organisations, this particular judge is not alone, and that, unfortunately, is the way of lawyers.

    While Sir Richard Doll was president of ASH and often lent his name or presence to specific campaigns on tobacco, he had not always been so active in this way. A former ASH employee recalls Sir Richard being reluctant to be too openly associated with ASH in any advocacy role, for the very reason that he feared this might weaken the perceived weight of his findings. His job, he said, was researching the problem and providing the evidence, whereas that of ASH was to put it over to the government and the public. It seems his fears were well justified. However, in the many cases where he acted as an expert witness in US tobacco litigation cases in the last decade or so of his life, his association with ASH in his home country does not seem to have caused adverse comment.

    In a related discourse on fees charged by expert witnesses, the judge specifically noted that all Mrs McTear’s witnesses had acted without taking fees, whereas all the tobacco company’s witnesses had charged for their services. The context of these comments suggested that the first might be an indication of the possible bias noted above, whereas the second was more likely to suggest genuine independence.

    Another part of the judge’s comments that tobacco control advocates will have to consider in any future cases concerned attitude. He wrote that Sir Richard Doll had made clear “by his demeanour as well as the content of his evidence with what disdain he regarded those individuals who disagreed with his conclusion that the causal connection between cigarette smoking and lung cancer was proved.” This is another instance where it may come as a shock to find the degree to which given positions in the real world must be suspended in court, and Lord Nimmo Smith specifically stated that he could not bring his opinion into the courtroom, nor could he base a decision on views and medical opinions which were expressed outside court.

    Presumably Sir Richard’s demeanour, as perceived by the judge, stemmed from the need to go back to the beginning of time, in terms of the epidemiology of tobacco and disease, and public acceptance of it. It is interesting to speculate whether there would be any subjects on which a generally accepted fact at the centre of a comparable legal case could be taken as proved, and not regarded as an opinion requiring an expert witness to argue it in court, possibly exhibiting a questionable demeanour when doing so. The demeanour of, say, a distinguished astronomer might make an impression on a judge if the astronomer had to give evidence in a case where the defendant contended that the earth was flat.

    In the judgment, a monster document running to 350 000 words which took a year and a quarter to compose, the judge stated that to succeed, Mrs McTear not only had to prove that the defendant, ITL, had caused or substantially contributed to her husband’s death, but that the burden was on her to prove even the basic premise that smoking causes lung cancer. The company had not admitted this, and it could not be assumed, he said.

    Not only had the company not admitted it, but its chief executive, Gareth Davies, positively denied it in court as recently as 2003. Yet despite this, ITL could argue that Mr McTear knew the risks of smoking, even when he began smoking in 1964. This seems to suggest that a British smoker can be assumed to know that smoking is a serious risk—the judge said as much elsewhere in his verdict—but even though that publicly known risk is based on widely accepted scientific evidence, a tobacco company can still base some of its defence on a contention of the evidence.

    The failure of Mrs McTear’s legal team to demonstrate the smoking–lung cancer link, and the tainting of her expert witnesses by association with ASH, was only part of the story. In the early stages of the case, some tobacco control advocates expressed surprise that Mrs McTear’s lawyers did not seem to be making more use of the vast experience of tobacco in the USA, which US colleagues have been generously willing to share. But the overriding problem faced by the lawyers was simple lack of funds—the case had been refused legal aid, and for any legal practice, the resources that can be applied to no win, no fee tobacco litigation have their limits.

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