Dr. Cheryl Perry on Providing Expert Testimony

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By Susan Kirtz, MPH
Managing Editor, Texas Health Journal
Director of Special Projects, Center for Health Communication
The University of Texas at Austin

 
 
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Dr. Cheryl L. Perry is a Professor and Regional Dean at The University of Texas Health Science Center at Houston School of Public Health (Austin Regional Campus). Dr. Perry is a nationally-recognized leader in youth health promotion and tobacco use prevention research. She has authored more than 300 peer-reviewed articles, multiple chapters and books, and has been recognized as one of the Most Highly Cited Researchers (top 0.5%) in Social Sciences. She was senior scientific editor of the 1994, 2012, and 2016 Surgeon General’s Reports on Preventing Tobacco and E-Cigarette Use Among Youth and Young Adults.

Dr. Perry also served as an expert scientific witness for the state of Minnesota in the lawsuit against tobacco companies in 1998. This lawsuit led to the Master Settlement Agreement and provided the nation with millions of tobacco industry documents.

 

In this edition of The Insider, we asked Dr. Perry to talk about her experience providing expert testimony. Here’s what she had to say.

This turned out to be a very intense, interesting, and challenging two-year experience. I served as the Senior Scientific Editor on the Surgeon General’s Report, Preventing Tobacco Use with Young People, published in 1994. It was the very first Surgeon General’s Report to focus on youth, 30 years after such reports were mandated by Congress. In that report, we came very close to concluding that cigarette marketing caused youth to smoke. The data were compelling, but not conclusive at that time. That set the stage for my interest in cigarette marketing and young people’s smoking onset.

For the trial between the State of Minnesota and Blue Cross and Blue Shield (BCBS) of Minnesota v. Philip Morris, etc., the Attorney General and BCBS were represented by the prestigious law firm, Robbins, Kaplan, Miller & Ciresi. I was interviewed by the firm to serve as a witness around tobacco company actions and youth tobacco use, and in 1996 I was asked to be one of six key witnesses for the State of Minnesota.

 

How did you prepare for the hearing(s)?

For the next two years, I reviewed all of the scientific and historical literature on tobacco marketing, tobacco company behavior, and youth tobacco use. As part of the process, the law firm began to collect tobacco company documents, which they stored in a warehouse in Minneapolis, and began to carefully review. There were millions of pages of documents by the time the trial began early in 1998. I received all documents related to youth, particularly documents on marketing to youth ages 14-22 and research done by the tobacco companies to understand youth and what appeals to them (e.g., Joe Camel).

I was not allowed to talk about any of these documents or their contents with anyone, including my husband, colleagues, friends, or students, until they were released during trial. So I would read something provocative like “the base of our business is the high school student” and could not reveal this, except of course to the lawyers I was working with.

I was asked to write a report on what my testimony would include, to be provided to the tobacco companies. This report was scrutinized during my deposition with a Philip Morris lawyer. The deposition was taped but not video recorded. The deposition focused quite a bit on my parents, childhood, family, adolescence, being a “baby boomer” in the 1970s. My lawyer was excellent at not allowing me to answer any out-of-range questions. My deposition lasted 8 hours, which is short compared with colleagues who have been deposed in other cases.

After deposition, I began to work in earnest, in January 1998, on my “direct” presentation of evidence, and to prepare for cross-examination. I took a sabbatical year, so that I could work on this 24/7 until after my testimony at the trial. We prepared large boards (4’ x 6’) with the major points of my presentation. I spent about 6 weeks preparing for cross-examination. I was driven to the St. Paul Hotel every day, and worked there. A very skilled cross-examiner (lawyer) flew in from Los Angeles for several days to drill me. Fortunately, this was/is an excellent team of lawyers, and they were able to predict and prepare me for most of the questions I would be asked.

 

What should someone acting as an expert scientific witness expect the day of the hearing(s)?

My direct testimony began in early March and lasted about ten hours over two days. Then there was nearly three full days (eight hours per day) of cross-examination of minute details that were presented in the direct testimony or in the industry documents. No notes are allowed at the witness stand, as they would become evidence for the tobacco companies. I made just one or two mistakes, but for the most part was able to describe how the tobacco companies rely on youth as “replacement smokers” for those who quit or who die.

Since this was in front of a lay jury, a challenge was keeping their interest after three or four days of minute details, and so (in retrospect) repeating key points is really important. You need to project your answers or testimony, look at the jury (not the person asking the questions, in my case a lawyer from RJ Reynolds, maker of Camel cigarettes, for the cross examination). You should be responsive and tell a story. There are a lot of details that can be asked in an 8-hour period – much more detailed than what we see of trials on TV and movies.

The trial ended in May 1998, right before the jury was to give its verdict. The tobacco companies settled with the State of Minnesota, and with that settlement, the important collection of industry documents took place.

 

Can an expert volunteer to provide testimony, or must they be recruited?

The expert witnesses are recruited. If someone is particularly interested in a topic and would like to be a witness, they might let someone at DSHS know, or someone else who might refer them.

 

What are your top 5 tips for someone providing expert testimony?

  1. Ask why you are being selected, and be honest with yourself and the lawyers about your breadth of expertise.

  2. Make sure the lawyers will support you in all areas of the testimony, from the written document, to depositions, to the direct testimony, and cross-examination. Having excellent lawyers is crucial.

  3. Understand that this is not a conversation in court. Lawyers are there to represent and defend their clients. In academia, we are trained to look at both sides of an issue, but in a trial you are asked to represent one side.

  4. Have enough time to devote to preparation. I couldn’t have done this without the support of my department or a sabbatical.

  5. This is worth doing! It is where the “rubber meets the road” in public health. It is not easy, and often not that much fun, but being an advocate for public health in a trial can make a huge impact.