Friday, 31 August 2012

Day 51: The chemical engineer

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

Pierre Leblond, who testified yesterday at the Montreal tobacco trials,  is one of the last of Imperial Tobacco Canada retirees to appear at this trial. Over the next two months, the focus will shift to fact witnesses from the other two large tobacco companies operating in Canada, Rothmans, Benson and Hedges (owned by Philip Morris International), and JTI-Macdonald (owned by Japan Tobacco).

Mr. Leblond's career record might suggest that he was quite knowledgeable about how cigarettes were made. Five years after graduating from McGill in chemical engineering, he joined the company in 1973. His first job was to reformulate casing and flavourings in pipe tobacco and fine cut tobacco, and his responsibilities over the next thirty years branched out into process management, product development, quality control and training. For a time, he was responsible for keeping the "K-List" of additives used by BAT and Imperial Tobacco under "lock and key" and for adding and deleting items from this list.

Philippe Trudel, the plaintiff lawyer who prepared questions for this witness, might have held expectations that this witness would be able to provide some of the basic information that has not yet been put on the record -- what the difference was between the tobacco used in U.S.-style cigarettes and those sold in Canada, how blends of tobacco were developed, etc.  

If so, they would  have been dashed within the first hour of Mr. Leblond's testimony. It seemed after the first series of general questions about cigarette manufacturing put to the witness that he had less knowledge about tobacco than many in the room. He said he didn't know the difference between Burley and Virginia tobacco, nor how they were cured. He could not explain what Ph was. He did not know how tobacco blends for cigarettes were developed.

For a while, it looked as though the day was heading nowhere, and Justice Riordan looked over at Philippe Trudel and chuckled "This may be a little shorter than you thought."

Witnesses are also a mechanism for documents to be entered into evidence, so Mr. Trudel began the task of showing Mr. Leblond documents related to Imperial Tobacco's cigarette designs and recipes that would soon become (in heavily redacted form) part of the court record.

Increasing nicotine levels in
tobacco in Canada's major brands
The first of these (Exhibit 528) is a fresh contribution to the old question of how and whether tobacco companies manipulate nicotine levels. It is an historic review by Mr. Leblond's former boss of the smoking profile of major Canadian brands, including the "nicotine transfer" available to smokers.

Soon Mr. Trudel turned to documents on additives. Although repeating the commonly-held view that Canadian cigarettes contain no additives, Mr. Leblond nonetheless testified that additives were used in manufacturing the reconstituted tobacco and filters which are part of the cigarette. 

If there are additives in reconstituted leaf, how can you claim there are no additives, Mr. Trudel wanted to know. "My understanding is that Health Canada accepted the claim that cigarettes were additive free despite the addition of processed leaf tobacco,> said Mr. Leblond. 

Justice Riordan today
excluded these products
from the trial
The document suggest that additives are frequently used in roll-your-own tobacco (which once accounted for a large portion of the tobacco smoked by members of the class action). But when Mr. Trudel tried to ask the witness about the use of additives in these products, lawyers from all three companies objected to any reference to fine-cut/roll-your-own cigarettes original claims referenced "manufactured" cigarettes. 

Justice Riordan's decision, given later in the day, agreed with the companies. He stressed the word impossible when ruling "it would be impossible to connect the roll your own issue with one single manufacturer and one single defendant" and "impossible to connect liability." Another limitation was put on the case. 

Mr. Trudel traced events at Imperial Tobacco related to tobacco additives through exhibits 530 A, 530 B, 530 C, 530 D, 530 E, 530 F, 530 G, 530 H, 358 N, 531. These included the decision in 1981 to de-list Coumarin, Deer Tongue and Tonka Bean at exactly the same time as Health Canada was pressing the company for disclosure of the additives used (Exhibit 531). Coincidence?  Hmmmm.

Mr. Trudel also asked Mr. Leblond to explain why the denatured alcohol that was used in cigarettes was rendered undrinkably industrial by the use of nicotine salts, and whether there were not other ways of denaturing alcohol. Again, responsibility was deflected to the government. Mr. Leblond said the use of nicotine was "mandated by government." (I am not aware of any such requirement. Alcohol denatured with other substances is available in Canada, and the chemical sheet on alcohol denatured with nicotine suggests the only use is for tobacco products.) 

Mr. Leblond blew off concerns about denatured alcohol as an additive: "We know that the substance completely evaporates," he explained. "Does the nicotine sulphate evaporate too?" Mr. Trudel asked. "Probably not," replied Mr. Leblond.  Another way of adding nicotine to cigarettes? 

It was during Mr. Trudel's questions about nicotine late in the day that one of the most interesting exchanges took place.

In response to a question about nicotine and addiction, Mr. Leblond began to provide a personal view. He was quickly cut off by an objection from Deborah Glendinning, Imperial Tobacco's lawyer. Justice Riordan agreed that the personal views of those who were not senior management should not be on record, so the witness limited his response to "the official comments that were publicly announced by Imperial Tobacco."

Justice Riordan, unusually, pursued his own line of questions. How did management communicate that view? Was it a new  message, or was it the position of the company before? Without Ms. Glendenning being able to interrupt with objections, Mr. Leblond told the court that during a meeting with employees at the Sheraton Hotel, then-president Don Brown had communicated the company's position on addiction.

"For many years we heard nothing at all and this type of comment probably started coming out in the 1990s when addiction became an issue and was in the news," explained Mr. Leblond. "And the response to addiction was that there are thousands - tens of thousands - of people who manage to stop smoking cigarettes."

"I think we will stop there for today," said Justice Riordan and papers were packed up for the long weekend.

More appeals

The court has been a little less crowded with lawyers this week, presumably because they have been busy preparing for Friday's hearing by the Court of Appeal regarding two more decisions by Justice Riordan. Imperial Tobacco and Rothmans Benson and Hedges are seeking a review of his June 28 decision that they must provide the plaintiffs with their financial records. (JTI-Macdonald has apparently decided to negotiate a transfer of information to the plaintiffs).  The federal government wants a review of the May 1 ruling which struck down much of the work of its star expert witness, David Burns.

Switching it up next week 

The trial next week will take on a different form.  The four-day week will run from Tuesday to Friday to allow for the Labour Day holiday on Monday.  

On Tuesday, the industry will try to prevent a subpoena being served on the archives of the CTMC, which are currently under the care of Mme Takacs, the former CTMC librarian. She will be on hand to testify during this hearing.

On Wednesday through Friday, the morning will be spent introducing some remaining documents from Imperial Tobacco. In the afternoon, the testimony of Mr. Peter Gage, a former leaf buyer and a nonagenarian will be heard by tele-conference from Victoria, B.C.

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:

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.