The Historians of Industry

What happens when historians enter the courtroom as expert witnesses—and start to affect legal outcomes and social policy?
By Gerald Markowitz and David Rosner

Five years ago, one of us received an odd e-mail. “Dear Dr. Rosner,” it began. “I am writing to introduce you to the Round Table Group, and to notify you of a short-term consulting opportunity which may be of interest. Our client is seeking an historian, highly credentialed, at a prestigious university to perform some historical research, and instruct a lay jury about what was known about a particular occupational hazard (lead paint contamination) in 1950 to 1980.”

The letter went on to explain how the historian they sought “need not be a subject matter expert” but need only be a “good communicator” who could “easily communicate a story to a jury.” The e-mail continued in some detail, telling how the process would work: if David were interested, he could send in his résumé, a brief explanation of his expertise, and a statement of his consulting fee. The note continued by informing him about the consulting group: it was a consortium of “several thousand professors” in “management, law, medicine, science, computer science, education, engineering, economics, and other disciplines who make themselves available to law firms and companies who are clients of the Round Table Group.”

During the past two decades, historians have been brought into legal cases in unprecedented numbers. As the courts have tried to adjudicate responsibility for environmental and occupational diseases, history and historians have played an increasingly central role in shaping decisions in the cases themselves as well as in related social policy. In suits over tobacco-related diseases, asbestosis, harm from radiation, and other toxic substances, historians of technology and science, social history, and public health are being brought to the courts in growing numbers to provide expert testimony aimed at assessing responsibility for damages that have arisen years, sometimes decades, after exposure.

The basic questions asked are those with which we became familiar during the Watergate hearings: Who knew what, and when did they know it? Did industry executives understand that specific substances could cause disease? If so, when did they learn of the dangers, and when did they begin to warn their workers or consumers of their products that they were at risk?

As the role of the historian has expanded, so, too, has the controversy surrounding the participation of historians in legal cases. At the 2003 annual meeting of the American Association for the History of Medicine, traditionally a collegial conclave of subspecialists, a panel on the history of childhood diseases ended in a shouting match after a well-known historian—who had been a paid consultant for the tobacco, asbestos, soft drink, and lead industries in the past—presented a paper arguing that the lead industry had done “nothing wrong” before the 1950s and that, in any case, the problem of childhood lead poisoning was vastly overblown. During the conference, the halls were abuzz with gossip and amazement (the New York Times covered the controversy in a June 14, 2003, article by Patricia Cohen). It soon became apparent that many more members of the association had been dipping into the corporate till, testifying on behalf of the tobacco industry, the lead industry, and other producers of toxic products. In March 2005, Jon Wiener, professor of history at the University of California, Irvine, reported on this issue in The Nation.

A much smaller group of historians is being called upon to study the responsibility of industry in causing disease and death. Allan M. Brandt of Harvard University (whose article “A Not-So-Slippery Slope” appears in this issue of Academe) worked for the federal government on a lawsuit against Philip Morris. Stanford University professor Robert Proctor was involved in the same suit and has worked for women damaged by radiation experiments at Vanderbilt University in the past. David Rothman of Columbia University worked on the Vanderbilt case as well. We, the authors of this essay, along with the historians mentioned above, have gone through our own internal process in deciding whether to work for those injured by industries, institutions, or products. All of us have determined that using our skills in this way was important and made our history more meaningful.

History in the Courtroom

In many cases, historians are recruited to provide testimony because of their highly specialized knowledge. This was certainly the case when we first became involved in silicosis cases following the publication of our 1991 book, Deadly Dust: Silicosis and the Politics of Occupational Disease in Twentieth-Century America. As historians of occupational disease, we had written about silicosis, a disabling lung condition caused by the inhalation of silica dust—finely ground sand—that had struck down thousands of workers in the decades before World War II and had been labeled the “king of occupational diseases” by commentators at the time. We had written the book without knowing that the disease was still of great concern, simply seeing it as an illustration of how the discovery of disease was rooted in social circumstances of economic depression and medical change. Soon, however, we found ourselves being called by law firms asking for us to consult with them about their ongoing cases. Workers in a host of industries, primarily in Texas, Louisiana, and other Gulf states, were still coming down with silicosis and were suing a variety of sand suppliers and equipment manufacturers.

At first, we were hesitant to get involved. It seemed repellent to us to testify in court, appear at depositions, and subject ourselves to possible pressures to meet the particular demands of court cases. We were scholars, not interested parties. We were removed from the events of the day by both training and inclination, and, we believed, scholars were not in the business of testifying in court. Memories of the contentiousness that affected the historical profession following the engagement of two of our friends and colleagues on different sides of the Sears, Roebuck and Co. case in the 1980s, a sex-discrimination lawsuit in which historians clashed in their interpretations of the origins of gender disparities, made us especially wary of getting involved.

Yet, after lawyers came to New York and presented haunting stories of their clients, we changed our minds. One lawyer told us about a thirty-four-year-old man who had moved from Mexico to take a relatively lucrative job in the oil fields of West Texas. A huge oil company had contracted to have Mexican workers near Odessa, Texas, sandblast old oil storage tanks when the oil crisis of the 1970s brought West Texas crude back into demand. Contractors had given workers paper masks and a sandblasting unit and had them enter the small enclosed tanks and blast sand at the layers of tar and oil that had accumulated on interior walls. Not surprisingly, workers began to die as the tiny particles of sand permeated their lungs, making it impossible to breathe.

It was clear why our book might be important to these workers and their families. We were told that in court case after case, lawyers for sand producers, equipment manufacturers, and companies that had employed these men had argued successfully that because “no one” had ever heard of silicosis, “no one” could be held accountable for a disease that was “unexpectedly” killing workers. Our book stood as a direct contradiction to the central tenet of these defense tactics: we had documented in minute detail what industry knew about silicosis in the 1920s, 1930s, and 1940s, even as companies attempted to avoid responsibility for workers who were dying from exposures to silica. Ultimately, we both agreed to become expert witnesses in two cases.

We will never forget our first depositions. One of the attorneys for the workers told us that a deposition was just like a PhD oral exam in which we would provide information and engage in serious discussions. Such a “seminar” could not last more than a few hours, we believed. But this was not to be the case. Each of us was grilled for several days from 9 a.m. to 5 p.m., with about twenty industry lawyers going after virtually every aspect of our book, from its text and footnotes through its index. What were our sources for the statement on, for example, page 45? Could we provide the document that was the basis for the statement on another page? How many references in a footnote were necessary to “prove” a point? Was one reference to a point enough to “prove” that this quotation represented a fair cross-section of the population? What were our credentials? How did we work together? Did we walk to work together? Where did we live? What languages were spoken in our neighborhoods? For whom did we vote in the last election? Which magazines did we read? To what organizations did we belong?

Virtually no aspect of our lives was out of bounds in the seemingly endless free-for-all. As the depositions wore on, we realized the enormous stakes involved. A score of companies, faced with potentially thousands of lawsuits, had hired numerous lawyers to undermine our credibility, lest we ever get to the witness stand and be able to speak to a jury. We also began to understand the stakes involved for the families, many of whom had no source of income to replace the meager wages that their husbands or fathers had earned while working themselves to disabling illness or literally to death.

A year later, David was finally called upon to testify. In the courtroom sat the still-surviving worker and his family—he was attached to an air hose connected to a portable air tank, and his wife and children surrounded him. David was on the stand for the entire morning. It was gratifying that by lunchtime, David’s testimony seemed to have made a deep impression on some of the company lawyers. A number of the defendants’ attorneys came slowly to the plaintiff’s table and sought to “settle” their responsibility for damages, opting to pay something to the worker and his family rather than risk a jury verdict that might cost them much, much more.

It was a victory of sorts, but for us, the most meaningful moments came during a recess when we had the chance to speak with the worker and his family. They told of his life, his family, and his children. His wife invited us to dinner at their home. The testimony on his behalf was extremely important to the children, who kept thanking us for coming to Texas “for their father.” Throughout David’s testimony, his children had translated the testimony into Spanish for him. They then conveyed his deep gratitude to us. It was a moment that made us realize that history does matter.

Professional Reputations

That first trial experience was searing and deeply unsettling. But in subsequent years, we became less and less fearful of the deposition and courtroom process—and more and more convinced that our particular skill in writing history was making a difference for many people throughout the country.

Initially, we felt quite protected from any outside criticism: we were well-recognized scholars who were tenured at major universities. Our work had been widely reviewed in medical, science, history, and other journals and almost universally hailed for the quality and depth of the research. True, Deadly Dust was critical of many actions by industry, but the fact that we stuck close to our sources and almost always “let the documentary evidence speak for itself” gave us reason to think that our reputations as scholars were secure, at least within the academic community. And, for most of the 1990s, when the attempts to undermine our work were done in depositions that stayed inside the courtroom, our reputations remained secure.

That began to change, however, shortly after the turn of the new century. The first shot across the bow occurred in 2003, when Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, published an attack on us in Mealey’s Litigation Report: Silica. He accused us of writing a “jeremiad” that “resonates to the passions and prejudices of the last century.” He took us to task for our “prejudice” that “silicosis results from the valuation of profits over people” and said that we should point out that in Communist countries silicosis rates were much higher. “They fairly consistently excuse or justify the actions of labor. . . . They excoriate the motives and actions of industry.” But Schachtman’s true agenda emerged in the middle of his third paragraph. “We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact,” he wrote. “The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.”

Schachtman’s article seemed to be saying that as long as academics spoke only to one another and had no influence beyond academia, they could be tolerated. But once they begin to affect that wider world, they needed to be put back in their place. All this despite the fact that at the time Schachtman’s piece was published, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.

While our book on silicosis preceded our experience with the legal system, our next book on industrial pollution grew out of another legal case. In 1996, we were called by two lawyers from the City of New York Law Department because we were among the only scholars to have written about the history of lead poisoning. The city had been sued by families whose children had been poisoned by lead paint in public housing. The city, in turn, sued the lead pigment industry, claiming that the industry bore some responsibility for damages to these children. New York City had accumulated a roomful of documents obtained from the lead industry through the legal system’s discovery process. The two attorneys wanted us to go through hundreds of thousands of pages that the industry had been compelled to produce and tell them, based on historians’ knowledge, what the industry knew about childhood lead poisoning across the course of the twentieth century.

We organized the material and wrote an affidavit. From this and other research came the first part of our 2002 book, Deceit and Denial: The Deadly Politics of Industrial Pollution. Our analysis of industry’s role in this public-health tragedy not only drew from, but also depended upon, these previously proprietary company and trade-association documents. In fact, without the lawsuit, historians would never have seen the hundreds of thousands of pages of internal memoranda and minutes of meetings in which lead pigment manufacturers such as National Lead (the producer of Dutch Boy paints) discussed the dangers of leaded paint to children early in the last century. Nor would we have been able to learn of marketing campaigns that simultaneously claimed that lead paint was safe and sanitary to use on children’s walls, furniture, and the like.

The long affidavit we wrote was integrated into other legal actions that had begun around the country. By the end of 2002, cities such as Chicago, New York, Oakland, St. Louis, and Milwaukee had begun cases against the industry. Some were quickly dismissed by judges; others were allowed to go forward. In Rhode Island, the state attorney general brought the first state action against the lead industry for having knowingly created a public nuisance in the form of lead paint on the walls of up to 80 percent of the state’s housing, thereby putting thousands of children at risk of developing lead poisoning. This particular Rhode Island case gained national attention, with articles appearing in Barron’s, Newsweek, the New York Times, the Wall Street Journal, and elsewhere. In that case, we were each on the stand for six days, most of the time under cross-examination.

The second part of our book dealt with the chemical industry. Representatives of that industry also went to extraordinary lengths to undermine our reputations. In 1998, we were asked to evaluate an enormous store of documents in Lake Charles, Louisiana, related to the plastics industry’s knowledge of the cancer-causing potential of the key ingredient in polyvinyl chloride (PVC), one of the most common plastics used in a wide variety of consumer items, from computer keyboards to vinyl house siding. Our three-hundred-page timeline of knowledge and activities by the chemical industry trade association became the basis for lawsuits by PVC workers who had come down with a rare liver cancer.

Imagine our sense of pride. Deceit and Denial was praised by the scholarly community for its rigor and scholarship, receiving positive reviews in Science, JAMA, the New England Journal of Medicine, The Lancet, New Scientist, the American Historical Review, the Journal of American History, and Reviews in American History. Bill Moyers produced an Emmy-award-winning documentary, Trade Secrets, featuring our work. An HBO special, Blue Vinyl, produced by Judith Helfand and Dan Gold, also highlighted our work.

All was going well until early spring 2004. We were working in David’s office when our editor at the University of California Press called to tell us that the press and the Milbank Memorial Fund, which had co-published our book, had just received a subpoena to produce all of their documents related to the publication of Deceit and Denial, including correspondence, peer reviewers’ reports, e-mail messages, and memoranda between the press, the fund, and us. Shortly thereafter, we received a call from a colleague who had been subpoenaed to appear for a deposition where he would be questioned by lawyers for chemical companies because he had been one of the peer reviewers of our book. He had never received a subpoena before and certainly had never been required to comb his files for letters, reviews, drafts, and the like. The next day and in the days following what had appeared to be an oddity turned into a major crisis for us. Five of the eight reviewers of the original manuscript received subpoenas to appear at depositions where they were quizzed about the peer-review process, their evaluations of our work, and even their personal and professional relationships with us.

But the final indignity came when we received, by e-mail, a forty-one-page attack on us written by another historian, Philip Scranton, director of the Hagley Museum and Library’s Center for the History of Business, Technology, and Society and University Board of Governors Professor of History at Rutgers University in Camden. This document was unlike anything we had ever seen: it claimed that we had been guilty of ethical misconduct. The document shocked us and left us wondering what to do. We had to respond, but to whom? With the help of Merlin Chowkwanyun, then an undergraduate at Columbia University and presently a graduate student at the University of Pennsylvania, we established a Web site, www.deceitanddenial.org, where we posted Scranton’s attack, our response to it, and links to the documents so that scholars could judge for themselves the accuracy of our book.

It seemed to us that much of the document had been written for a legal purpose rather than for the historical scholarly community. Scranton spent a number of pages arguing that we should not have used the word industry and instead, in each instance, should have listed all of the companies by name (there were up to twenty) when describing how the Manufacturing Chemists’ Association—a trade association—sought to deceive the government. He accused us of having inadequate documentation, despite the fact that our three-hundred-page book was accompanied by eighty-one pages of footnotes. He seemed to torture the Statement on Standards of Professional Conduct of the American Historical Association (AHA) in an attempt to show that we were violating sacred historical principles.

The academic and scholarly world picked up on the larger issues involved in our case, pointing out the threat to academic freedom and peer review that such actions entailed. The historian Jon Wiener reviewed the controversy for The Nation and evaluated the reliability of Scranton’s claims on behalf of the industry that our work violated the AHA’s statement on standards. He asked the vice president for research of the AHA, Roy Rosenzweig, then Distinguished Professor of History at George Mason University, who responded, “I’ve read the AHA Statement on Standards, . . . I see nothing in Markowitz and Rosner’s book that’s a violation of the AHA Standards. In my opinion, the book represents the highest standards of the history profession. Scranton should be embarrassed to make the claim that there’s an ethical violation here—as opposed to the claim that he disagrees with their interpretation.” We believe that the purpose of this attack was to convince the court that Gerald should be excluded as an expert witness in the case. Since then, Scranton has continued to aid the industry’s attempt to exclude our testimony, thereby depriving juries of crucial historical evidence.

Good History

Our experience was not unique. In fact, other historians whose work has antagonized major industries have faced even worse harassment. Robert Proctor at Stanford University, for example, has actually been forced to hire his own attorneys to defend himself from attempts by the tobacco industry to investigate his research and review his work in progress. Proctor has been writing a massive history of the tobacco industry and has appeared in court on behalf of lung-cancer victims and the federal government in cases against big tobacco. Tobacco-industry lawyers subpoenaed the manuscript of his unpublished and unfinished book on the history of the effort of Big Tobacco to hook the nation and world on their products. R. J. Reynolds Tobacco Company convinced a Florida state court judge to allow the company to subpoena the manuscript. Proctor has resisted those industry attempts, asking, “Why should the tobacco company be mucking around in private thoughts? They can see [the book] when it is finished.” Proctor’s defense of the principle of academic freedom was ultimately successful, but at no small cost to him.

David Michaels, the current head of the Occupational Safety and Health Administration and author of Doubt Is Our Product, a critique of many industries’ efforts to create uncertainty over science as a way to forestall regulation, has argued that one of industry’s goals in civil actions is to produce doubt about the reliability of scientific information and of scholars themselves. Indeed, Proctor has coined the term agnatology to describe the effort to create doubt and ignorance about actions in the past. In this context, the growing demand for the historian’s skills cuts both ways. We can be called upon to lend clarity and historical precision to public debates about responsibility and risk, or we can be recruited to cloud and confuse the issues.

Our experience and the controversies that are roiling the historical community take on a special resonance in the light of the recent BP disaster in the Gulf of Mexico. The Round Table Group, as previously noted, has focused on recruiting academics to serve a variety of industries as experts in an ever-growing number of environmental and other legal actions. In July, a Mobile, Alabama, newspaper, the Press-Register, reported that BP had taken this effort to new depths in an effort to prepare for “spill litigation,” offering “signing bonuses and lucrative pay to prominent scientists from public universities around the Gulf Coast.” The newspaper reported that BP sought to hire entire departments and to contract with individual scientists who would be restricted from publishing their findings without approval from BP. Such reports highlight the stakes involved for the academic community. With the enormous resources available to corporations like BP, the meaning of the university as a place for free inquiry and honest discussion is put at risk.

We academics owe society a great deal, and we owe those who are often without voice a great deal more. The demands from the legal system will force academics to crystallize our sense of purpose and the humanistic traditions that lend legitimacy to our work. For historians, involvement in important social debates will force us to define what is “good” history, both methodologically and morally.

Portions of this essay have appeared in longer essays written for Law and Contemporary Problems and Medical History.

Gerald Markowitz is Distinguished Professor of History at the City University of New York’s John Jay College and Graduate Center. His e-mail address is gmarkowitz@jjay.cuny.edu. David Rosner, an elected member of the Institute of Medicine, is Ronald H. Lauterstein Professor of Sociomedical Science and History at Columbia University and co-director of the Center for the History and Ethics of Public Health at Columbia’s Mailman School of Public Health. His e-mail address is dr289@mail.cumc.columbia.edu.

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