Thursday, 18 October 2012

Day 72: If this is 2:30, we must be in addiction.

The second and last day of Mr. Norman Cohen's testimony at the trial of the Quebec tobacco class action suits was even faster than the first.

The witness, a former scientist with Rothmans and then with Rothmans, Benson and Hedges (RBH), continued to provide concise and apparently sincere and intelligent replies to the questions put to him by plaintiff lawyer, Pierre Boivin.

Simon Potter, the lawyer for RBH, interrupted less frequently and (mostly) stopped throwing verbal spitballs at his opponents. Justice Riordan steered the proceedings away from extraneous questions or lengthy replies with steady prompts for the "next question." There was no slowing this baby down.

At the end of the day, it was revealed that there was some quid pro quo for this sudden acceleration and those in black robes at the front of the room seemed pleased with the speed of events.

For those of us at the back of the bus, at times it felt like we were on an express way, whizzing by historic sites with no time to stop and visit. Like many such trips, it makes for a superficial travelogue. Nonetheless, here are some snapshots of the places we passed...

Stop 1: Are you sure you don't know the toxic properties of cigarettes smoke?

As sincere as Mr. Cohen has sounded, there were points where his testimony differed from the documentary record of his past life. The first document presented today (Exhibit 801) contained two such discrepancies.

Yesterday, Mr. Boivin had asked Mr. Cohen about test results he had received late in 1988 on aldehyde levels in smoke from Rothman cigarettes (Exhibit 793).

When asked if the tests were "because those constituents are considered to be carcinogenic or co-carcinogenic?", Mr. Cohen had replied "Nothing of the sort. I don't know what they have with respect to health property, I really don't understand." Nor did he think catechol (a substance created when sugar additives were burned) to be a "a co-carcinogenic component of cigarette smoke."

But in a 1987 memo Mr. Cohen was more frank with his colleagues. There he describes smoke compounds as "extremely carcinogenic," "cilia toxic" and as a "tumour initiator and promotor." Catechol, he writes then is a "co-carcinogen." (Exhibit 801).

Stop 2: Did you really give Health Canada what they asked?

Yesterday, Mr. Cohen spoke a few times about the role the federal health ministry played in the company's decisions. When Mr. Boivin asked him about the industry's apparent attempts to avoid a standard for Benzoapyrene, he said:

We never refused to do anything that was health orientated when the request came through to us from  Health and Welfare Canada. They got always what they asked from us, at all times.

But in April 1981, federal officials told Mr. Cohen and others that "it was not the case" that "the Hunter list or any other list could be used as a Canadian guideline for approved on non-approved additives.'  (Exhibit 802) The message was later repeated in writing, as was a request for toxicity testing of additives. (Exhibit 802B).

In court today, Mr. Cohen remembered the meeting and letter, and acknowledged that the testing on additives that had been requested "was not done." The company had its own reason for refusing, he said, but had not shared that reason with government.

"This in my mind was a storm in a teacup. We wanted to reserve the right to use a chemical without disclosing to our competitors. That was part of the concern about submitting specific information. ...If any chemical was on a banned list anyway we would not use it. That was our policy. If it was banned anywhere we would not use it. We did not speak to that with Health and Welfare." 

The other problem that concerned him was cost "Inhalation studies went way beyond us as a small company. We would have to spend literally millions – it was way way beyond what the normal industry was able to handle."

Rather than complying with Health Canada's request, his company over the following years made it irrelevant by phasing out the use of additives. "This type of thing is what spawned us into completely eliminating all additives including processing additives. There was no point in fighting over things that had little impact on the smoker." 

Today's exhibits related to additives: 801, 802, 802A, 802B, 802C, 803

Stop 3: Nicotine and Compensation

Exhibit 805
Mr. Cohen is more comfortable with the idea of smokers compensation than some other witnesses at this trial have been. He readily confirmed his 1987 view that the average smoker of a low tar cigarette received 33% more tar than the label indicated.  (Exhibit 805)

He noted that the brands with relatively more nicotine were more successful in the market (Exhibit 806). Although he researched ways to increase free nicotine, he does not appear to have ever been sold on the idea.

"Nicotine is absorbed within 7 seconds," he said today. "The difference between instantaneous and a little faster than that is hard to distinguish."

Moreoever, free nicotine gave "a somewhat unsmokeable product – it had harshness, a different character – it did not resemble the normal cigarette that you have on the Canadian market." 

Today's exhibits related to nicotine and compensation:  804805806807808809810811812813814829

Stop 4: Funding Verner Knott to use kids and psychiatric patients as guinea pigs  

Mr. Cohen was a member of the CTMC committee which decided the allocation of medical research funds. As others on the committee had, he received advice from his foreign owners on the merits of grantees.

One grantee who was clearly much in Mr. Cohen's favour was the Ottawa-based neuroelectrophysiologist, Dr. Verner Knott. "He wasn’t anti-smoking, which was a rarity among people in hospitals," said Mr. Cohen today.

Funding for Verner Knott started in 1978 (he was grateful because his grant "came at an invaluable time as we just bought a house") (Exhibit 815).

A review from Rothmans UK headquarters found Dr. Knott "sympathetic to the industry" and favoured his research proposal to measure children's brain waves and follow them over time to see if it was possible to identify who would become smokers and who would not. It also liked his idea to experiment on psychiatric patients to see if smoking helped cope with stress. (Exhbit 816A). 

Dr. Cohen still regrets that the project on children never went ahead, and in testimony identified a health purpose to it that does not seem to appear in the many records of this proposal that have circulated over the years.

"I thought this was a wonderful project. ... We knew that it involved children and would cause great controversy. Verner Knott wanted to know whether children were predisposed to smoking in their early days. The idea was to determine whether there was something that could be determined and track and would be able at an early stage to try to put them off. This was not for the benefit of industry per se, it was to the contrary."

In the end the project "fell by the wayside – it didn’t happen. Everybody ran scared."  Psychiatric patients, however, did become subjects for CTMC-funded research.

By the end of the 1980s, Mr. Cohen pushed for CTMC-directed funds to only go to research that is "likely to provide a direct benefit to the industry." (Exhibit 826) Today, he testified that this is indeed what happened. 

Today's exhibits related to research funding: 815, 816, 816A 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827

Stop 5: I am not an actor, but I play one in court

By mid-afternoon, Pierre Boivin finally paused for breath, and it was Simon Potter's opportunity to ask Mr. Cohen questions. He did so for about an hour, and it was quite a show. 

His voice rose and fell and his arms were held out as though he had attended drama school in the 19th century. I was too mesmerized to look away and notice whether others also thought they had fallen into an episode of Rumpole of the Bailey.

Mr. Potter returned to exhibits that had been presented over the past two days and posed questions that mostly required no more than a "yes" or "no." A few times Mr. Cohen started to expand on his answer, but before he could get past a conjunction - "but" - "and" -- Mr. Potter was on to another question. 

The questions kept rolling out...

"In the real world of RBH, did you ever add nicotine back to reconstituted sheet"
"No. We used a different sheet"

"Was there ever any nicotine fortification done in the tobacco you used at RBH?"
"Oh no. Never." 

"Did you find any correlation of nicotine per puff and brand performance?"
"No we didn’t." 

"Did you ever put on the market a product that modified pH?"
"No we didn’t."

"Did you add ammonia?"
"We never added ammonia to cigarettes that were sold commercially."

"Did you ever try to put holes at places where they would be blocked?"
"Certainly not!"


My colleague, Pierre Croteau, leaned over to me and whispered that Mr. Potter was playing the third period against the federal government. Sure enough, his last two points were focused on the themes that he had introduced in his opening argument seven months ago -- the "societal consensus" to allow the continued sale of cigarettes, despite their known hazards and the role of the federal government within that consensus.

Yesterday morning, Mr. Cohen had been shown a 1957 article by Ernst Wynder, Towards a solution of the tobacco-cancer problem. (Exhibit 783). Today, Mr. Potter drew his attention to a reflection Dr. Wynder made 55 years ago:

"It must become the function of the public health services of different countries to evaluate the data at hand, and if convinced by the evidence that tobacco plays a part in the development of lung cancer, decide whether lives are more important than economic considerations."

"Did any government authority come and say you must stop making cigarettes?" Mr. Potter asked Mr. Cohen. "No, this never happened."

Before long, Mr. Potter produced a document that relates to events that are featured heavily in his client's action in warranty claim against the federal government. It is a record of a meeting 35 years ago on "Less Hazardous cigarettes" (Exhibit 30001).

Mr. Cohen had attended the meeting and he was asked about the University researchers and government officials who had attended.

"Why was Agriculture Canada there?"
"Because we worked hand in glove with them."

"What's that?"
"We worked hand in glove with them."

"Hand (pause) In (pause) Glove.  Thank you."

The lawyer representing the federal government, Maurice Regnier, may have decided that discretion was the better part of valour. He chose not to ask any questions of Mr. Cohen. There was a final, less dramatic,  short round of questions by the plaintiffs and then the day was over.

Next Monday and Tuesday, a former president of Rothmans, Benson and Hedges - Mr. Patrick Fennell - will testify. On Wednesday and Thursday the trial returns to witnesses from JTI-Macdonald, with the appearance of former public relations official, Mary Trudelle.