Tuesday, 29 May 2012

Day 33 - The Science Guy

For information on accessing documents, see note at the end of this post

Today the world of tobacco science and the world of law entered each other's orbits when a former scientist for Imperial Tobacco Canada Ltd., Dr. Andrew Porter, testified at the class-action trial against Canada's three large tobacco companies.

One tobacco scientist too many

Science class calls for tutors - and new faces were seen on the benches of the legal teams and in the audience. Among the new faces was one familiar to many in the room, Dr. Murray Kaiserman, who has recently retired from his position as director of research at Health Canada's tobacco unit. He was there to assist the federal government in its defense against the claims by Imperial Tobacco and other companies.

Dr. Kaiserman, however, has more roles in this trial than being an advisor to the Attorney General. The tobacco companies have signalled that they intend to call him as a fact witness - and fact witnesses are not allowed to attend the trial before they come to testify.

For that reason, Mr. Jean-Francois Lehoux (who represents RBH) objected to the presence of Dr. Kaiserman, saying that the principle of witness exclusion should apply equally to all parties. The lawyer for the federal government, Maurice Regnier, was unable to persuade Judge Riordan that the complex nature of the case justified the exemption that was applied in precedents he cited. Calling on Mr. Regnier to find alternative technical support, Justice Riordan requested Dr. Kaiserman to leave.

(This was a victory for the tobacco companies. Dr. Kaiserman is generous with his insights and there are only a handful of people working in public health with his expertise in tobacco science.).

The scientist as witness

Dr. Andrew Porter is expected to testify for three days, and much of this first day felt like an introduction to the structure of scientific work at Imperial Tobacco and BAT, the scope of their research interests and the tobacco world behind the laboratory doors.

The only other scientist to have testified in a Canadian tobacco trial was Dr. Stewart Massey who helped defend Imperial Tobacco against a small claims court case filed by Joseph Battaglia related to light cigarettes.

Dr. Porter is a trim and healthy looking man, who gives the impression of being a scientist of the tidy, methodical sort. He was raised in Britain, where he graduated with a masters in spectroscopy in 1971 before coming to McGill to do his doctorate in chemistry. Forty years in Canada have failed to remove his pronounced British accent.

He joined Imperial Tobacco in 1977, completing his PhD three years later. Seven years after joining the company, he was promoted to principal research scientist, a position he held until 2005, when he was seconded briefly to BAT to work on harm reduction research.  He retired in 2007, but works as a consultant to the company on scientific issues.

It was plaintiff lawyer Pierre Boivin who conducted the questions throughout the day. Despite the many differences between them, the lawyer and the witness worked constructively and politely together, and provided a significant quantity of information to the court.

BAT's global tobacco science footprint

The research capacity at BAT and Imperial Tobacco that was described to the court today is truly impressive. Dr. Porter had a staff of 12 who conducted research in the areas of biology, toxicology, smoking behaviour, analytic chemistry, physical chemistry among others. Above him were two other senior scientists - Dr. Massey and Dr. Dunn.  Yet even this research team was small in comparison with the extensive BAT group research unit. (Exhibit 356)

Although Dr. Porter worked several thousand miles from the BAT laboratory in Southampton, he was familiar with many of the scientists there. Scientific meetings were held at least once a year, he said, and there was regular contact as issues arose. A formal arrangement between Imperial Tobacco and British American Tobacco apportioned costs and shared research assignments.

Document destruction / retention

The request by BAT to have its scientific reports removed from ITL's library has been the subject of many questions (and non-answers) over the trial, as the plaintiffs have sought to establish the chain of events that led to over 2,000 documents being repatriated to BAT headquarters. (Exhibit 319J). Of particular interest is the  role that litigation-nervous lawyers played in those events. Today's testimony provided further light on that chapter.

Do you know why there was a change in policy [about document retention]?
No I don’t

Do you know who was in charge?
It came from senior management. We were informed by Dr. Dunn.

You were not curious to know why?
I had some curiosity, yes

What did you do to find out?
I asked Dr. Massey and Dr. Dunn, and frankly I didn’t really understand it. They gave me an answer, but I didn’t understand it. I can't remember what their answer was.

Do you know if it was because of litigation purposes that the documents had to be sent to England?
I don’t know if that was the reason.

Was it one of the reasons given by Dr. Massey?
It was mentioned during the discussion.

Is publication in a scientific journal the same as informing the public?

One of the areas of expertise that Imperial Tobacco's labs offered to the BAT research system was work on a more simple test to assess the mutagenicity (an early step in cancer) of their products. The method they focused considerable energy on was the Ames test, which was invented in the early 1970s.

Mutagenic measures
on smoke from 6
 Canadian cigarette brands 
By 1981, Imperial Tobacco had assessed that the Ames test was an effective and efficient way to measure and compare the damage caused to genetic material by cigarette smoke. (Exhibit 357). This conclusion was based on tests they conducted on various types of cigarettes and various types of tobacco. All of the tests had been "positive" - meaning that all showed the potential to cause genetic damage and lead to cancer.

Do you know if ITL ever advised its customers that all its cigarettes tested positive on the Ames test? the witness was asked. We published – we were the first company to publish the results of tests in 1975 in the Mutation Research journal, so it was known, certainly.

What journal? 
The Mutation Research Journal.

Except for that publication, did you advise in any way or shape the results of your Ames tests?
We certainly presented at conferences and obviously senior management have seen these results, and as far as I know Health Canada was shown as well.

ITL didn’t consider telling all of its customers?
You have to put it in perspective, it can show you a potential, but it doesn’t necessarily mean it will cause you cancer. .. To warn someone on something you are not sure of yourself would be premature.

You didn’t consider it important for your customers to know that the result?
I think that publishing in a journal is tantamount to informing the public. My job is in a scientific area. We make sure that it goes into scientific community . I am not responsible for public affairs.

Your job was not to make sure that your ITL customers were informed that all the tests showed [that your cigarettes made mutagenic smoke]?

Whose job was it?
I have no idea.

In a similar vein, Dr. Porter reported that no effort had been taken by Imperial Tobacco to communicate wit consumers about its knowledge of cancer-causing chemicals that are unique to tobacco smoke (tobacco-specific nitrosamines), (Exhibit 360)

Evidence-based systems

Both science and law rely on evidence to reach conclusions, but the culture clash between the evidentiary approaches was very apparent today.

The collaborative arrangement between BAT and Imperial Tobacco meant that the Canadian branch plant often relied on the headquarters for key scientific research findings (this, after all, is what gave rise to the "heated" discussions within ITL about removing BAT documents from the premises). There were many subject areas that the Canadian scientists were not directly involved in, even though they applied the learnings to their work and even though the results influenced the cigarettes that were smoked in Canada.

But scientific reports -- or reports of meetings between scientists that lead to scientific reports -- are only acceptable as evidence in this trial if they can meet the evidentiary tests of Canadian courts.  Justice Riordan, in his May 2 and May 17 rulings, has reduced the burden of those tests considerably. But two documents the plaintiffs tried to put on the trial record today were rejected, as they neither came from Imperial Tobacco nor did they have "an appropriate witness" to validate them. Because of the hub-and-spoke structure of BAT's research function, this is a problem that is likely to reoccur.

In such circumstances, the tobacco lawyers who insisted that minutes of scientific meetings be re-drafted or not circulated to countries where litigation was a concern will have been rewarded for those efforts. Important documents may be excluded from this trial. Another victory today for the tobacco companies.

Can we go now?

This first day of tobacco science required extra effort, and the day was marked by struggles with technology, polysyllabic chemical names, exhibit numbering and microphone management.

By mid-afternoon, despite the instructive and at times very revealing testimony of Dr. Porter, it was clear that that minds were wandering and the clock was being watched.  At  4:30, Justice Riordan pushed for Pierre Boivin to wrap up. "You must be exhausted," he said. "I am."

Science class with Dr. Porter resumes tomorrow.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.