Wednesday, 17 October 2012

Day 71: A rushed day with another Northern Irish Chemist

The pedal hit the metal during today's hurried examination of Mr. Norman Cohen, the former scientific advisor to Rothmans Benson and Hedges (RBH) and the second witness from this company to appear at the trial of the Quebec class actions against Canadian tobacco companies.

Witnesses from the RBH family of companies are scheduled to have the shortest appearance at this trial. Yet the counsel leading this company's defense, Mr. Simon Potter, has presented "the press of time" for "my witnesses" as his over-riding concern. He has seemingly convinced Justice Riordan to expect an efficiency in introducing evidence that was not apparent in the first 68 days of the trial. 

The result today was heavy pressure on plaintiff counsel Pierre Boivin to move quickly through the process of introducing documents and questioning the witness. 

Seemingly sympathetic to Mr. Potter's concerns about time, Justice Riordan frequently gave a firm direction for the "next question." At one point - I believe a first for this trial - he put closure on a witness, saying crossly. "I am NOT going to give you more than 2 days with this witness. You had better use your time wisely.

Other forms of pressure were also put on Mr. Boivin, as Mr. Potter repeatedly mocked his mispronunciation of English names. (The tobacco industry witnesses have almost universally elected to speak in English, which puts the anglophone tobacco industry lawyers at a comparative advantage over their francophone plaintiff colleagues.)

Justice Riordan allowed these comments and, to his credit, Pierre Boivin gave every appearance of being unaffected by the belittlement.

The day resulted in the production of 25 interesting documents and some fascinating testimony -- and a lot of unanswered questions.

The Irish connection

Mr. Cohen is the third witness to have worked at the Belfast plant of the former Gallahers tobacco company  before moving to Canada to take up work at a Canadian tobacco company. The other two were scientists at RJR-Maconald, John Hood, who testified on October 2nd, and Ray Howie, who testified three weeks ago.

At 75* years of age, Mr. Cohen is a decade older than his Northern Irish colleagues, although the difference would not be apparent unless you could see his very white hair and charmingly wizened face. Despite his short and slight frame, there is nothing frail in his appearance or speech. With his high cheek-bones and pinkish lined cheeks, he could easily be cast as an extra for a movie set in an Irish pub.

Norm Cohen started working at Rothmans of Pall Mall Canada in 1962, and continued to work in the company that was formed through the merger of Rothmans and Benson and Hedges in 1986. He did not fully retire until after 2000, by which time he had 38 years of work experience at the company. This may have been a man who enjoyed his work.

More from Patrick O'Neil-Dunne

Mr. Cohen is one of the few witnesses old enough to have first-hand memories of Mr. O'Neil-Dunne or the impact he had on the company. Documents filed today show the colourful Mr. O'Neil-Dunne reporting to his famous boss, Anton Rupert, on developments in Canada in 1958 on the marketing of healthy cigarettes:  (Exhibit 784).

"Our brand cannot be all things to all people. it must be either health or taste." ...
"It is almost impossible to establish another plain cigarette in a market that has already lost all its health conscious smokers to filters."...
"You said you had now confirmed the theory of cigarette brands in three dimensions, namely (a) taste to the extreme right and health to the extreme left, (b) colour psychology and (c) class distinction. This is so penetrating a discovery that we can now conquer the world!"...
"You reported that on July 5th there will be a pronouncement on smoking and lung cancer of major importance and we should be ready to capitalize on this situation with P.R."

Earlier the trial had seen the provocative 1958 ads placed by Rothmans which acknowledged cancer risks. (Exhibit 536A) Today Mr. O'Neil-Dunne's report on the roll out and fall out of that extraordinary event was made public for the first time. (Exhibit 785). Following a mea culpa, he finds a silver lining.

“One of the greatest victories which we have achieved by this release is that our product is no longer accused of mildness and those who knew it to be mild from past sampling have come back with the thought that no wonder they are so mild – Rothmans research has made them cancer free. ... There is a big difference between having a "cancer" images and having a "cancer free" image.

Twenty years later, the company was still looking at ways to consider some cigarettes less harmful than others (Exhibit 786),

Does smoking cause disease?

Virtually every witness to this trial has been asked whether he or she believes that smoking causes cancer, and whether their beliefs have changed over time. Often (like yesterday's witness, Mr. Broen), the answers  echo the directives circulated by management.

Mr. Cohen's response was a little more personal. As the one in charge of scientific affairs for his company, he received and maintained a library of scientific reports on smoking and health. Instead of clarifying this for him, it seems to have allowed him to prolong an agnostic view.

Early in the day, Mr. Boivin showed him a 1957 article written by Ernst Wynder that had been taken from his company's library that reviewed the "extensive" statistical and epidemiological evidence linking smoking to cancer and asked whether he believed this to be true.

With a soft voice and Irish lilt, the witness gave an answer that sounded heartfelt. "The date is 1957 – at that time there was serious controversy about the issue of statistical and epidemiological evidence. There were many experts – real experts of Wynder’s calibre – who cast doubt."

Justice Riordan asked what he thought at the time he worked in the company.
"I didn’t know. There was so much controversy. ... I really didn’t know. It was beyond my expertise."

Disguising any incredulity he might have felt, Pierre Boivin asked "Until you retired in 2000,  you still thought there was a controversy?"
"Yes, I think it was still there."

At other points in the day, Mr. Cohen said he believed for a long time that smoking in moderation could be a safe pleasure, and that it was not established that the chemicals in the tar from cigarette smoke caused cancer.
"At this time I did not know. There were people who smoked and died. There were people who smoked and didn’t die. There were people who didn’t smoke and died of smoking-related diseases. I didn’t know."

But after he retired in 2000, his beliefs changed - and so did his own tobacco use. ("Up until my retirement, I still smoked.")  He "began to see the weight of evidence" was such that he accepted that "tar does cause cancer."
Science at Rothmans and RBH

Mr. Cohen said that the research facilities at Rothmans when he joined were very modest, and that his early focus was on upgrading and expand the research capacity of the company.

Most of his work was on product development (Exhibit 782) The lab itself did no research on smoking and health issues, although Mr. Cohen initiated a library collection of such material.
"We were not equipped to handle health matters per se - We had no health doctors, no medical doctors... The health work that was being done by health chemists was very complicated and extremely expensive. I felt we needed to get a basic lab in place before anything else could be done."

He was kept informed about developments in many areas of tobacco science through regular participation in sessions organized by Rothmans Carreras (i.e. Exhibit 781), and through the receipt of regular clippings and reviews of scientific findings. (Exhibit 780, 7788789)

Additives in RBH cigarettes.

Mr. Cohen distinguished between production additives, such as those used in cigarette papers, filters and reconstituted tobacco, and "chemicals and flavours added to improve the salability of the product with regard to taste."

While the first type of additives were necessary to cigarette manufacture, he said, he was not a fan of the second group. They were a "waste of money" as smokers' panels were unable to taste any benefit. Some additives - like the NFE (Natural Flavour Extract) - were added at the insistence of the international owners. (A 1981 list of additives in Rothmans cigarettes at Exhibit 800).

Mr. Cohen reported that only additives that had been approved by the Hunter Committee, (Exhibit 799) by FEMA or GRAS were considered for use. (He was under the impression that the GRAS list was designed to include chemicals that were inhaled and not ingested.), and admitted he had to rely on suppliers' reports.
"This listing was given to us saying that this product met these needs for tobacco and at that point in time I had no alternative but to accept. Nobody had said there was any harm there so I had to take it."  

There was more in this busy day

In the whirlwind tour of science issues, Mr. Cohen testified about efforts to avoid setting a standard through the Canadian Consumer Standards Board for Benzoapyrene. (Exhibits 790791792), the undisclosed measurements of toxic compounds in the smoke of RBH brands (Exhibit 794795 795A), and tests on the harmfulness of their products. (Exhibit 796)

Another Court of Appeal defeat for the defendants

On Monday, Justice Allan Hilton of Quebec's Court of Appeal rejected a request for appeal of a June decision by Justice Riordan to allow the plaintiffs confidential access to the financial records of the tobacco companies since 2007. (The same Allan Hilton who once represented Rothmans, Benson and Hedges has not yet given the industry much comfort from his position on the Court of Appeal).

Tomorrow, Mr. Cohen testifies for a second day. On Monday, Mr. Patrick Fennell, a former president of RBH, is scheduled to testify.

*an incorrect age was posted in an earlier version of this blog