The Tobacco Deposition and Trial Testimony Archive (DATTA) project: origins, aims, and methods.

Research on previously secret tobacco industry documents has grown substantially during the past decade, since these documents first became available as the result of private and governmental litigation and investigations by the US Congress and the US Food and Drug Administration. Complementary research on tobacco litigation testimony is now being conducted through the Tobacco Deposition and Trial Testimony Archive (DATTA) project. We obtained transcripts of depositions and trial testimony, deposition and trial exhibits, expert reports, and other litigation documents from law firms, court reporter firms, individual lawyers and witnesses, tobacco company websites, and other sources. As of 3 March 2006, the publicly available collection of DATTA (http://tobaccodocuments.org/datta) contained 4850 transcripts of depositions and trial testimony, including a total of about 820,000 transcript pages. Transcripts covered testimony from 1957 to 2005 (85% were for testimony from 1990 to 2005) given by more than 1500 witnesses in a total of 232 lawsuits. Twelve research teams were established to study the transcripts, with each team covering a particular topic (for example, the health consequences of tobacco use, addiction and pharmacology, tobacco advertising and promotion, tobacco-product design and manufacture, economic impact of tobacco use, youth initiation of tobacco use, and public understanding of the risks of tobacco use and exposure to second-hand smoke). The teams used qualitative research methods to analyse the documents, and their initial findings are published throughout this journal supplement.

Epidemiology of the third wave of tobacco litigation in the United States, 1994-2005.

OBJECTIVE: To describe the epidemiology of litigation against the tobacco industry in the United States during the years 1994-2005 (described as the "third wave" of tobacco litigation). "Epidemiology" refers to the study of the distribution and determinants of disease in populations. We apply the term "epidemiology" to the litigation context for purposes of characterising qualitatively and, to the extent possible, quantitatively the variety of cases litigated against tobacco manufacturers and allied tobacco interests during the third wave and their impact on the tobacco industry. METHODS: The data for this paper come from legal cases identified in the Tobacco Deposition and Trial Testimony Archive (DATTA) collection (http://tobaccodocuments.org/datta), transcripts of testimony and related documents found in DATTA, government-mandated reports filed by tobacco manufacturers with the US Securities and Exchange Commission, investment company reports, reports and analyses published by the news media, a variety of informational documents produced by the Tobacco Control Resource Center at the Northeastern University School of Law, and legal settlement documents provided by the National Association of Attorneys General. RESULTS: The US tobacco industry faced a far greater number of lawsuits, and a greater variety of types of lawsuit, between 1994 and 2005 than it had in previous years. Plaintiffs won 31 (41%) of the 75 cases that were tried to verdict during the years 1995-2005. Seven plaintiffs have been paid awards totalling US$115 million, including interest, following the exhaustion of appeals. Based on an evaluation of litigation brought against US industry leader Philip Morris, the total number of cases pending peaked in 2000, dropping off modestly since then. For example, 36 class actions were pending in 2000, while 33 were pending in 2005. In the same time period, individual actions fell from a total of 3385 to 2863. While the playing field has been levelled to some degree in the tobacco litigation arena with respect to the resources brought to bear by plaintiffs and defendants, tobacco industry defendants continue to employ far greater financial and human resources than their adversaries. CONCLUSIONS: The third wave of tobacco litigation has represented a sea change in efforts to hold the tobacco industry in the United States accountable in American courtrooms. While tobacco manufacturers continue to do their utmost to make these cases difficult to pursue, many of the cases that have gone to trial have met with success in recent years, which suggests that plaintiffs' lawyers are now better equipped to persuade juries of the defendants' culpability.

Tobacco manufacturers' defence against plaintiffs' claims of cancer causation: throwing mud at the wall and hoping some of it will stick.

BACKGROUND: In the late 1990s and the early part of this decade, the major US cigarette manufacturers admitted, to varying degrees, that smoking causes cancer and other diseases. OBJECTIVE: To examine how tobacco manufacturers have defended themselves against charges that their products caused cancer in plaintiffs in 34 personal injury lawsuits, all but one of which were litigated between the years 1986 and 2003. METHODS: Defence opening and closing statements, trial testimony, and depositions for these cases were obtained from the Tobacco Deposition and Trial Testimony Archive (http://tobaccodocuments.org/datta/). All available defence-related transcripts from these cases were reviewed and a content analysis was conducted to identify common themes in the defendants' arguments. RESULTS: After review of the transcripts, defendants' arguments were grouped into seven categories: (1) there is no scientific proof that cigarette smoking causes lung cancer; (2) the plaintiff did not have lung cancer as claimed; (3) the plaintiff had a type of lung cancer not associated with cigarette smoking; (4) the plaintiff had cancer that may have been associated with cigarette smoking or smokeless tobacco use, but tobacco products were not to blame in this particular case; (5) the plaintiff had cancer that may have been associated with cigarette smoking, but the defendant's cigarette brands were not to blame; (6) the defendant's cigarettes (or smokeless tobacco) may have played a role in the plaintiff's illness/death, but other risk factors were present that negate or mitigate the defendant's responsibility; and (7) the defendant's cigarettes may have been a factor in the plaintiff's illness/death, but the plaintiff knew of the health risks and exercised free will in choosing to smoke and declining to quit. Use of the argument that smoking is not a proven cause of lung cancer declined in frequency during and after the period when tobacco companies began to publicly admit that smoking causes disease. Corresponding increases occurred over time in the use of other arguments (namely, presence of other risk factors and "free will"). CONCLUSIONS: Despite the vast body of literature showing that cigarette smoking causes cancer, and despite tobacco companies' recent admissions that smoking causes cancer, defendants used numerous arguments in these cases to deny that their products had caused cancer in plaintiffs. The cigarette companies, through their public admissions and courtroom arguments, seem to be saying, "Yes, smoking causes lung cancer, but not in people who sue us".