Chapter 2: The Burden of Proof

© 1999, Lauren A. Colby. Version 2.3

Chapter 2: The Burden of Proof

I am lawyer and, in particular, a trial lawyer. In the law, there is something called the burden of proof. The anti-smoking crowd insists that smokers prove to them that smoking is not harmful. That's a trap. Nobody can prove a negative, i.e., that something is not so.

Recently, a client wanted to know whether a particular document was filed with a government agency. I told him my records did not show that it was filed and that I presumed that it wasn't. That didn't satisfy him. He demanded a "yes" or "no": was it filed or wasn't it? I explained to him that I could send a researcher to the agency, and if the researcher found a copy of the document in the agency's files, that would prove, positively, that it had been filed. If, however, the researcher found nothing, it would prove nothing. There would always be the possibility that the document was mislaid or that the researcher overlooked it.

Tobacco companies know a lot about "burden of proof". That's why tobacco executives don't deny there's a risk in smoking. In fact they even boast that there's a risk. One of their own employees testified to the Waxman panel that he wouldn't want his daughter to smoke. You see, the tobacco companies have frequently been sued by people suffering from lung cancer who claim that they got the disease from smoking cigarettes. The conventional wisdom says that smoking does, in fact, cause lung cancer, but the conventional wisdom is often wrong and, in this instance there is plenty of evidence that it is wrong. The tobacco companies, however, don't need to buck the conventional wisdom in order to defend lawsuits. The tobacco companies have found it easier to defend lawsuits by saying to the plaintiff "Didn't you read the warnings on the cigarette packages? Didn't you listen to all the warnings from prominent physicians and public officials? You went ahead and assumed the risk!".

Back in 1890, the conventional wisdom said that masturbation caused blindness. Suppose some doctor dared to challenge the conventional wisdom, and advised a patient that the practice is harmless. The patient takes the advice, goes ahead and masturbates and goes blind. He sues the doctor and I'm hired to represent the doctor in court. Believe me, if I'm a good lawyer, I'm not going to challenge the conventional wisdom and say the blindness had nothing to do with the plaintiff taking my client's advice! A much better defense is to cross examine the plaintiff: "Haven't you read books written by prominent authorities about the dangers of Onanism? Haven't you heard the preacher warn about it, in church? Haven't you heard the lectures by prominent temperance authorities about this dangerous vice? You proceeded at your own risk!"

Where smoking is concerned, it's obvious that if everybody who smoked developed lung cancer, we could say, conclusively, that smoking "causes" lung cancer. But we all know that not everybody who smokes develops lung cancer, and we also all know of many people who don't smoke a day in their lives, but none-the-less develop lung cancer at an early age and die from the disease. Hal Roach, the producer of the "Little Rascals" movies, was a heavy, 3 or 4 pack-per-day cigarette smoker for his entire life, but died recently, at the age of 101, apparently from simple old age 1 . A former governor of Virginia died recently of lung cancer; he was in his 50's and had never smoked. Just the other day, CNN showed a picture of a Lebanese gentleman, who claims to be 134 years old. He was vigorously puffing on a cigarette, burned down almost all the way to his lips. His formula for a long life: smoking and drinking every day, along with the consumption of fresh vegetables. The world's oldest woman, a 125 year old resident of France, smoked until she was 123.

In my own family, my aunt died recently in Florida, at the age of 78, from lung cancer. She'd been a smoker in her youth, but gave it up about 25 years ago. A family friend, also a female, died in New York at about the same time as my aunt died. The family friend was in her late 70's or early 80's, and had never smoked a day in her life. Thus, these little old ladies became statistics. Or did they? Actually, it may surprise the reader to learn that death certificates never contain any information concerning the life-styles of the decedents. Therefore, while the Public Health Service keeps certain records showing the cause of death from various diseases, nobody, but nobody keeps any records to show whether the decedents were or were not smokers!

There is an Internet News Group devoted to smoking (alt.smokers). Recently, a participant called the Office of Smoking or Health, in an effort to find out how the government arrives at its estimate of 450,000 annual smoking related deaths. After repeated calls to different individuals within the government, it turned out that nobody really knew how the figures are compiled. Some bureaucrat said he thought the calculations might come from a book, "Foundations of Modern Epidemiology", by David Lilienfeld. They don't. I'll discuss this and other interesting statistical manipulations, later.

Before leaving this subject, however, a recent (04/19/95) letter to the editor of the San Jose, Ca., Mercury News sheds some light on the methods used by the anti-smoking lobby to generate false reports of "smoking related" deaths. The author of the letter, Mary Ellen Haley, reported that a loved one died of adenocarcinoma. Only 17 days elapsed from the deceased's first visit to the doctor to the day of his death. The letter writer was provided with the information for the death certificate, which she took to the attending physician for completion.

On the death certificate there was a line for the doctor to insert the immediate cause of death, and then three lines for "due to". The doctor inserted "cigarette smoking" under "due to". The letter writer questioned the doctor: was he sure the tumor was caused by cigarette smoking? The doctor said he wasn't sure about that, but there were guidelines issued by the American Cancer Society, and that when a person dies of certain conditions and has smoked, the doctor is instructed to list the "due to" as "smoking". In this instance, Ms. Haley persuaded the doctor to omit the usual "due to cigarette smoking", but obviously, this was a rare occurrence. The willingness of the medical profession to blindly observe "guidelines", issued by the Cancer Society generates a continuous stream of death certificates, validating the official line that cigarette smoking causes everything from heart disease to uterine cancer; yet, there is no shred of scientific evidence to validate any of the certificates; they are based on nothing more than official instructions to put down smoking as the cause of death!