Historians as Expert Witnesses
The late Stephen Ambrose had no special expertise in the field, but based on his high visibility as a popular historian he made a good deal of money as an"expert witness" for American tobacco companies in cases where their liability for damages done to smokers was at stake. It was a cruel irony that, shortly after giving his testimony and being accused of plagiarism, Ambrose died of lung cancer, probably related to his own heavy addiction to smoking. Michael Bellesiles was not called as an expert witness, but his expertise embarrassed gun control's cause when California's 9th circuit court had to amend the notes to its favorable opinion citing Arming America, when it became clear that Bellesiles had fabricated his evidence. The irony in Bellesiles's case, I think, is that if his construction of evidence had not been so radically skewed to one side on an issue that was in heated litigation, his fabrication of evidence might have gone unnoticed. After all, from the publication of his first article on the subject in 1996 through his winning of the Bancroft Prize in 2002, none of our ordinary processes of peer review had caught it. Indeed, we gave it our highest honor.
Jon Wiener in The Nation and Kevin Murphy at Ghost in the Machine have followed a more recent record left by historians as expert witnesses on a different issue. Public health historians David Rosner of Columbia and Gerald Markowitz of CUNY are the co-authors of Deceit and Denial: The Deadly Politics of Industrial Pollution (2003), a report on the chemical industry's efforts to hide the carcinogenic effect of some of its products. To hold back a tide of lawsuits, Dow, Monsanto, Goodrich, Goodyear, Union Carbide, and 15 other companies subpoenaed peer reviewers of Deceit and Denial and hired Philip Scranton of Rutgers to challenge the book's credibility. His major allegation against Rosner and Markowitz: they had recommended the names of peer reviewers to their publisher. In defense of Rosner and Markowitz, AHA vice president Roy Rosenzweig said:"In my opinion, the book represents the highest standards of the history profession."
Now, says Murphy, a Rhode Island grand jury relied on documents surfaced by Rosner and Markowitz to find the three manufacturers of lead paint guilty of"public nuisance." According to one report, the finding of"liability paves the way for a potential damage award of millions of dollars in cleanup and mitigation costs." Subsequently, California has reinstated a class-action lawsuit against the lead paint industry and insurance companies are trying of evacuate policies for the manufacturers because they"didn't disclose the dangers of lead paint when they purchased their policies."
Three years ago, Columbia's David J. Rothman published an important article about the historian as expert witness:"Serving Clio and Client: The Historian as Expert Witness," Bulletin of the History of Medicine, 77 (Spring 2003): 25-44. Rothman outlined his argument in his abstract:
Although historians often appear in court as expert witnesses, their presence stirs unease and controversy. To clarify the issues at stake, this article compares two activities-testifying on behalf of plaintiffs, and conducting an open-ended historical inquiry-by using the author's personal experience in Craft v. Vanderbilt as a case in point. The litigation sought to gain compensation and an apology for the 830-850 women who between 1945 and 1949 at the Vanderbilt prenatal clinic were fed doses of radioactive iron without their consent so as to study the process of iron absorption. The overall conclusion is that historians can serve clients without subverting the canons of the discipline. However, because Clio and client have such different needs, historians should recognize, and take pride in the fact, that courtroom appearances represent advocacy.
Rothman's concluding sentence is not, however, altogether satisfactory for generalizations about the historian as expert witness beyond the case of Craft v. Vanderbilt. As the contrary experience of Stephen Ambrose and Philip Scranton suggests, it begs the question of advocacy"for whom?" Historians can put"For Sale" signs on their professional reputations and make a lot of money as expert witnesses. We can also, on the other hand, take up the cause of aggrieved parties in litigation and serve the cause of social justice. In either case, we risk the possibility of mis-serving our obligation to Clio's even-handed and disinterested spirit. Let the witness beware.