U doctor allegedly misled jury in Florida cancer case

Brian Edwards

A Stanford University professor poured over five years’ worth of court documents to find doctors with what he said he believed were unethical links to tobacco companies.
Dr. Robert Jackler published a paper last month claiming that multiple doctors — including a University of Minnesota adjunct assistant professor — have misled juries while testifying as expert witnesses in lawsuits against tobacco companies.
 
Jackler, an otolaryngology professor, said in the paper that doctors deliberately misinformed juries with information about tobacco use that most ear, nose and throat doctors don’t support.
 
“I wanted to see what the tobacco industry was doing in my field of otolaryngology,” he said. “I was aware that there had been a big lawsuit in Florida.”
 
The class-action lawsuit, Engle v. Liggett, took place in Florida in 1999 and required the Liggett Group, a tobacco company, to pay $145 billion to the plaintiffs.
 
But the judgment was reversed when the Florida Supreme Court decided citizens needed to sue the tobacco company individually to receive damages.
 
Since then, thousands of cases have been filed in Florida against tobacco companies, and those companies have hired doctors to support their side, Jackler said.
 
Merrill Biel, the University of Minnesota adjunct assistant otolaryngology professor whose testimony was examined in the paper, is an ear, nose and throat specialist who
practices in Minneapolis.
 
Biel denied that he had been hired by the tobacco corporation to testify in their favor and called being an expert witness a responsibility similar to serving on a jury.
 
“If they don’t, then someone who’s not an expert fills that space, and you don’t get [an] accurate testimony,” Biel said. “It is a part of your civic duty.”
 
He said the tobacco company lawyers asked him to explain the causes of laryngeal cancer.
 
Biel mentioned several possible causes of cancer in his deposition, but he said he stressed to the lawyers that smoking greatly increases a patient’s chance of getting 
laryngeal cancer.
 
“In general, as a medical expert, you are not testifying for or against somebody,” he said. “You are testifying … to the facts you are asked about.”
 
Biel said he has served as an expert witness in a tobacco-related lawsuit once, and his deposition was his only participation in the lawsuit.
 
Richard Painter, a corporate law professor at the University, said bringing in experts during cases is a widespread practice.
 
He said the experts, commonly academics, are hired as consultants to give their opinion on a set of questions lawyers pose.
 
The experts are paid by the hour, and many are never selected to go further in the case than the initial consultation, Painter said.
 
He said the consultations are under oath, and the experts are expected to give the most accurate information possible.
 
“It is not an advocacy role; it is an expert opinion,” he said.
 
The lawyers then decide whether or not the information provided could help their case, Painter said.
 
If lawyers choose the expert for their case, they participate in a deposition where other lawyers are able to question the expert, Painter said, adding that many experts provide their testimony through the deposition and never actually go to trial.
 
Jackler said Biel was the only doctor whose testimony he examined didn’t explicitly say smoking wasn’t the cause of the plaintiff’s cancer.
 
But Biel’s testimony fit into the tobacco company’s narrative of downplaying smoking as a cause of cancer while overstating others, Jackler said.
 
In the cases he examined, the tobacco companies pointed toward other suspected causes of cancer, like alcohol use and exposure to asbestos.
 
He said doctors shouldn’t give expert testimony for tobacco companies because of the overwhelming consensus among otolaryngologists that tobacco use causes cancer.
 
Biel called Jackler’s paper a mischaracterization of the situation and said he believes the Laryngoscope, the journal Jackler published his study in, should review the paper and have it removed.
 
He said he sent a request to the journal on July 21 asking to have Jackler’s paper reviewed and removed. 
 
“The methods I used were sound; the interpretations of the data were carefully and thoroughly done, and the conclusions reached were well supported by the data,” Jackler said.