Trials and tribulations : what happens when historians enter the courtroom

Abstract

I INTRODUCTION Four years ago, as I was sitting at my desk in my overcrowded office, I received an odd e-mail. "Dear Professor," it began, I am writing to introduce you to Round Table Group [RTG], and to notify you of a specific, short-term consulting opportunity which may be of interest. Our attorney client is seeking an historian, highly credentialed, and 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) between 1950 and 1980. (1) The letter went on to explain how the historian sought "need not be a subject matter expert" but only need be a "good communicator" who could "easily communicate a story to a lay jury." (2) The e-mail continued in some detail, telling me how the process would work: If I were interested, I could send in my resume, a brief explanation of my expertise, and a statement of my consulting fee. After consulting with their industry client, I would be set up on a conference call to "determine if there is mutual interest in going forward." (3) The note continued by informing me 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 Round Table Group." (4) Historians, it appeared, were a new addition to their stable of experts. What was ironic, if that's the right word, was that RTG was searching for an expert to testify on behalf of companies in a lead-paint trial, and at that very moment I was preparing to testify in a major lead-paint trial on behalf of the State of Rhode Island. (5) I, with Gerald Markowitz, had written a book on the lead and vinyl industries (6) based on documents we had uncovered. The documents, an affidavit we had written, and the book had all become part of a landmark case in which Rhode Island's Attorney General, along with the support of the plaintiffs' law firm, Motley Rice, were suing the lead-pigment manufacturers to get them to remove lead paint from hundreds of thousands of buildings in the state. It appeared that the lead industry was searching for someone to testify against me. Clearly, this recruitment letter was part of a larger phenomenon. In recent years historians have been brought into legal cases in unprecedented numbers. (7) As the courts have tried to adjudicate responsibility for environmental and occupational diseases, history has played an increasingly central role in decisions that affect the cases themselves and in social policy regarding risk. In suits over tobacco-related diseases, asbestosis, radiation, and other toxic substances, more historians of technology and science, social history, and public health are being sought to provide testimony aimed at assessing responsibility for damages that have arisen years--sometimes decades--after exposure. The basic questions asked were predictable: Who knew what about specific toxins and when did they know it? Did industries 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 their consumers of their products that they were at risk? As the role of the historian has expanded, so too has the controversy surrounding historians' participation. At the 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 up in a shouting match after a respected historian who had been a consultant for the tobacco, asbestos, soft-drink, and lead industries, 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. …