Day 118: Chipping away at the estimated deaths

The cross examination of epidemiologist Jack Siemiatycki at the Montreal tobacco trial continued this morning for less than an hour.

Yesterday, JTI-Macdonald lawyer, Guy Pratte, had pushed for the plaintiff's expert witness to admit that there were other ways of calculating his estimate of the number of Quebecers who had died as a result of four smoking-related diseases, and that these other methods ways would produce a lower total than the one Mr. Siemiatycki had presented to the court.

Today, Mr. Pratte focused on whether the epidemiological model that had been used by Mr. Siemiatycki took into account other factors that might be relevant when deciding any fault on the part of the companies' actions in Quebec.

Did he know whether the cancer patients whose cases were  registered had smoked in Quebec, or whether they might have done their smoking in other parts of the world, and only died in Quebec?  Did his model reflect how much smokers who died knew about the risks of smoking? Whether these smoekrs were influenced or not by the marketing or other actions of the companies?

After Mr. Siemiatycki gave the expected answer that none of this was reflected in his model, Mr. Pratte asked him to acknowledge that these factors also might be considered in any calculation of a "legally attributable fraction" of deaths due to smoking. Mr. Siemiatycki agreed.

The questions put by Mr. Potter, who represents Rothmans, Benson and Hedges, were even briefer. He wanted to establish that the epidemiologist had not had access to any of the data that the plaintiffs might have collected on members of the class action. Mr. Siemiatycki appeared unaware that there was even such a databank, and agreed with Mr. Potter's assertion that he did not know whether "the conclusions [in his] meta-anlaysis jive with what is in their databanks."

The third lawyer to cross-examine this witness was Allan Coleman, who did so on behalf of Imperial Tobacco. This is the first issue managed by Mr. Coleman in this trial and by design or personality he aligned his style with that of the more cordial members of the defence team.

Mr. Coleman returned to two methodological issues that had been discussed yesterday. The first was whether 'pack-years' is the best measurement  for smoking history. The second was whether the dose-response relationship between smoking and cancers and emphysema should be described linearly or in other ways. For both issues, he referred Mr. Siemiatycki to studies he had participated in, or which were prepared by highly reputed epidemiologists (Richard Doll, Richard Peto, Michael Thun).

Mr. Siemiatycki did not deny that other approaches had been suggested, or that there was a "body of evidence" that supported a different measure of smoking history. "One reason there is no consensus", he explained "is because there are different purposes – and the different purposes may suggest differing ways of doing it." 

All questions to Mr. Siemiatycki were suspended at that point. In March, he will return to the trial in order to be cross-examined about his decisions about 'heterogeneity' in his analysis of data.

Hand over the data?!!

A lot of time has been spent during the past week talking about (but never seeing) the response prepared by Mr. Siemiatycki to the epidemiologists hired by the companies to critique his work.

Today, Mr. Lespérance reported that this new analysis would not be presented to the trial until after the industry's consultants had testified, should they be certified as expert witnesses.

Mr. Potter was quick to push for the release as soon as possible of the data on which Mr. Siemiatycki based his report - even before it is certain that this information will be provided to the court.

This is no small request and no trifling matter  -- the companies want access to the data that has been gathered by Mr. Siemiatycki and his colleagues over several years.  The significance to public health of the companies gaining access to this information was not discussed.

The road ahead

Even before Mr. Siemietycki had left the room, Justice Riordan had turned the conversation to trial schedule during the month of April.

A month from today (March 21) the plaintiffs are scheduled to have "finished their proof." Normally, this would be the moment where the tobacco companies would begin their defence - but this trial seems to have its own sense of 'normal.'

The companies are planning a formal request for Justice Riordan to toss out some or all of the allegations against them (their upcoming request is being referred to as "motions of non-lieu"). The judge has done much to pour cold water on the idea, although today he acknowledged that he was 'intellectually curious' to see the reasons behind it.

As if to underline his view that this motion will go nowhere, the judge today pushed to have the trial move ahead during April, as if the motion were not on the horizon. This soon felt like his opening gambit in a scheduling game with the companies that had the feel of a round of championship poker.

While the plaintiffs mostly watched (I think they are not of a strong view whether the trial suspends for a few weeks in April), Justice Riordan countered each of the industry's excuses without making eye contact and without giving ground. Key team members not available in mid April? - then let's schedule for a week earlier! Heavy work load? - then call in another member of your team!

The companies finally signalled that they had received the message that Justice Riordan was "very very hesitant to take a five week break" and undertook to come back on March 4 with a suggestion for "some use we can find for 5 weeks." 

The trial will now take a one-week break and then return  for the last month of the "plaintiffs' proof". It looks like it will be a busy month, with many issues needing resolution. 

Already for the first week there will be new witnesses (Mr. Bilimoria), returning witensses (Mr. LaRiviere), issues to be resolved (market shares of the companies) and lots and lots of new documents. Other witnesses scheduled in March will be William Farone, Juan Negrete, Jeffrey Wigand, Wayne Knox, Christian Bourque and Jack Siemiatycki.

The trial resumes on March 4th. 

Day 117: Trying to shake the Confidence Interval

Today was the first day of the tobacco industry's cross-examination of the plaintiffs' epidemiologist in the trial of the Montreal class action suits.

The companies appear to have learned from their experiences when cross-examining the first few expert witnesses. In November, after a short battle of wits, they quickly threw in the towel when they were unable to best historian Robert Proctor. In January their re-hash of insinuations and insults directed at marketing expert Richard Pollay left the impression of school-yard pugilism more than substantive rebuttal.

But in their response to chemist André Castonguay last week and epidemiologist Jack Siemiatycki today, a new approach is taking shape. Instead of a showy "take-down" or grand reveal of character flaws, the companies now seem aimed at "wearing down" the witness with an onslaught of surprise documents and a series of relentless questions.

The tone has also shifted, and with it the players. The old-style veterans on the tobacco file, Simon Potter and Doug Mitchell, have been moved to the back seats. The Ontario-based counsel for ITL are, for once, sitting quietly. Instead, the limelight has been given to the Quebec members of their teams - Ms. Suzanne Côté (who questioned Mr. Castonguay last week) and Mr. Guy Pratte (who questioned Mr. Siemiatycki today).

If nothing else, their style of substantive steady questions asked in firm-but-polite tones seems better matched to the approach of Justice Riordan.

Bench strength

Although Guy Pratte was the one asking the questions today, it was clear that this was a significant group effort. At his side was Kevin LaRoche, who seemed equally familiar with the questions and where they were heading. More help sat at the rear of the room in the form of hired consultants, additional legal team -- and, it would appear, a visitor from Japan Tobacco's Swiss headquarters.

The pretence of not understanding the science had mostly been thrown off by Mssrs Pratte and LaRoche. Despite taking a pronunciation lesson from the witness over the correct way to say adenocarcinoma (it is not only lawyers who can try to destabilize a verbal opponent!), Mr. Pratte sounded extremely knowledgeable about many of the finer details of this specialty field.  These two men certainly seem to have learned a lot since a few days ago when they said they would not be able to properly represent their client.

The day began with Mr. LaRoche handing over to the plainatiffs and the court officers a CD that contained dozens of documents, none of them known in advance by the witness. This assembled material became the basis for a stream of questions aimed at getting Mr. Siemiatycki to acknowledge that his calculation of the number of Quebecers who had suffered from the four lung diseases that are the subject of the Blais-CQTS case could be an overestimate.

Hacking away at the critical point

Yesterday, Mr. Siemiatycki had explained how he had arrived at the quantity of smoking that was required before a court could presume that it was smoking that caused the disease in question, and not some other factor. Mr. Lespérance had asked a series of questions that allowed him to show how this "critical point" had emerged after a number of logically connected calculations.

Today, Mr. Pratte asked questions that challenged those calculations, and many of the choices Mr. Siemiatycki had made as an inherent part of the epidemiological process.

Why assume the relative risk for smokers for emphysema was the same as for COPD? Why assume a linear dose-response relationship? Why not make separate analyses for each of the lung cancer types? Why use a random effects model instead of a fixed effects model? Why not conduct the same sensitivity analysis for laryngeal cancer and pharyngeal cancer as for lung cancer? Why are other risks for cancer considered multiplicative with risks from smoking, and not additive?

In each case, Mr. Pratte suggested that other choices were available that would have raised the "critical amount" of smoking at which a disease should be linked to tobacco use.

As a seasoned epidemiologist, Mr. Siemiatycki must be used to arguing methodology, and frequently drew on this experience. He carefully refrained from agreeing too readily with statements that were put before him, asking for time to review the whole paper. He was comfortable - and showed it - in talking about the many approaches used in his field, and in the competing views about them. He did not hesitate to agree on the broad lead-up questions, while often (but not always) disappointing Mr. Pratte by not giving him the final answer he was seeking.

It appears Mr. Pratte inhaled

Mr. Pratte repeated an ongoing theme of the defence that population estimates are limited in value and that it  important to know individual smoking histories before coming to any conclusions about any cause of illness.

He artfully used his own smoking history as an example, claiming to have smoked for 10 pack years between the age of 15 and 20. He used his own life to try to show that Mr. Siemiatycki's analysis failed to distinguish between someone like him who was, he maintained. unlikely to become ill from smoking and a more recent quitter.

"Your 10 pack-year history can mean someone who smoked 2 packs a day for 5 years continuously, or someone who packed 1 pack a day for 10 years. It could mean someone who didn't smoke a whole lot, like my mother, who smoked half a pack a day for 20 years. ... If I had an individual person in front of me, I could ask them when they started or when they started and that could make a difference in their risk profile."

"It wouldn't make a huge difference," was the reply.

Herrings (red) and Hetero (geneity).

The one area where Mr. Pratte seemed to make more headway was in his questions to Mr. Siemiatycki about the lack of reference to "heterogeneity" in his analysis, and why reference to this part of the analysis had not been included.

(As I understood it today, if studies are of populations that are too varied, or heterogenous, the results shouldn't be mixed the way that Mr. Siemiatycki had done).

This issue had been included in the criticisms of his report levied by Laurentius Marais. Mr. Siemiatycki appeared ill-prepared to answer these questions today, in part because he had not been directly involved in the mechanics of producing the estimate and in part because "I have not paid attention to Mr. Marais' critiques because I thought they were red herrings."

He said he "would be happy to answer your question, but I would like a bit of time, perhaps a couple of days to think about and reflect and get back to you."  Because of these outstanding questions, Mr. Siemiatycki will return to testify on heterogeneity in March.

Not whether but by how much

If there was a time when tobacco company lawyers cast doubt on the epidemiology that demonstrated that smoking caused lung cancer, it was not echoed in any of the questions put to Mr. Siemiatycki today.

The admissions that Mr. Pratte was trying to wrestle out of Mr Siemiatycki would not have cast doubt on the fact that smoking was responsible for tens of thousands of recent Quebec cancer deaths. They might serve to reduce the estimate, but not by an obviously large amount.

Lots of time today, for example, was spent discussing whether the confidence intervals on estimates of larynx cancer risk should be wider. This would potentially exclude more victims from compensation, but larynx cancers represented less than 2% of the deaths Mr. Siemiatycki counted in his estimate of those "legally attributable" to smoking.

Reflecting on the graphs presented yesterday, it also seems that even if Mr. Pratte succeeded in shifting the slope of the dose-response relationship, or moved the "critical point" over to a higher value, the number of deaths that would be removed from the plaintiffs' case would be very low.

Tomorrow, the cross-examination of Jack Siemiatycki will continue.  

Day 116: Let me draw you a picture

Having watched epidemiologists present their findings to audiences whose math skills do not match their interest in the subject, I was a little concerned that today's appearance by Jack Siemiatycki at the Montreal tobacco trials might serve to confuse as much as enlighten.

Perhaps I took too seriously the suggestions of (JTI-Macdonald lawyers) Kevin LaRoche and Guy Pratte that the content would be too challenging even for their intellectual powers. If they felt they "could not master" the content, what hope would there be for the rest of us?

I was wrong to have any such apprehension.

Facing the prospect of handful of industry experts trying to throw up dust around Mr. Siemiatycki's conclusions, André Lespérance took the wise course of unbundling the report of his renowned expert witness, and allowing him to demystify it.

As it turned out, the key conclusions of Mr. Siemiatycki's expert report (Exhibit 1426.1) were not discussed today, at least not in terms of the numbers he finally arrived at.  (He concludes that there were 110,000 Quebec residents in the class period whose "who suffered from one of the four diseases and who would have had probability of causation greater than 50% that the cause was cigarettes smoking.")

Instead, what was presented was how he arrived at this conclusion, and why any other approach should bring the court to a similar finding.

iCourt

The risk of this approach could have been the glazing of eyes and later confusion. It was the manner of presentation chosen by the plaintiffs, however, that made the exercise simple, clear and compelling.

A few weeks back André Lespérance had suggested allowing Mr. Siemiatycki to illustrate his ideas using Powerpoint. The idea had been shot down, including by Justice Riordan, who said it was "looking for trouble" to bring new material to court in this way because of the objections it would trigger.

So the plaintiffs ingeniously hit upon another technology - the iPad app "Paper". Despite a few technical rough spots, this had the apparent spontaneity of a back-of-the-envelope sketch, while leaving a document for the court record. Better yet, the opposing lawyers seemed happy with the idea, or at least unprepared to challenge it.

Continuing Education

iPad at his fingertips, Mr.Siemiatycki resumed his gently-paced tutorial from the day before, when the concept of relative risk had been presented. He began today by explaining how to estimate the amount of disease that can be attributed to risk exposure (attributable fraction).

He related the concept to the job at hand: "You have in front of you a certain number of cases [of cancer] that have occurred in Quebec and the natural question is 'what fraction of these would not have occurred but for smoking?' – it is the Attributable Fraction among the Population that answers that question." 

He showed how to estimate the amount of cancer among all smokers and former smokers that could be attributed to smoking by measuring the area/number of people that lay above the normal risk that existed for smokers and non-smokers alike. The Attributable Fraction (AF) area is shown with black diagonal lines.

He also showed an alternative way of viewing it if smokers were divided into categories of risks  depending on how long or how much they had smoked. This area (shown with yellow diagonal lines) hinted at what was to come next. (I added the  typed descriptions of smoking patterns because these were only given orally).

The second concept he presented today was the probability of causation. "When a person is selected at random ...  he is sick, and he is a smoker and we know nothing else about him. how can we guess at the probability that his disease was caused by smoking?" he asked rhetorically before providing his answer. "The best approach is to look at the attributable fraction [and determine] what is the probability that he will be chosen from above the dotted line or below the dotted line [that separates the normal risk from the additional risk]." 


Again he used the iPad to illustrate an equation by which the probability of causation could be calculated. He described it as the additional risk divided by the whole risk, or PC=(RR-1)/RR.

By way of example, the probability of causation if the relative risk were 10 would be (10-1)/10, or 90%. The probability of causation if the relative risk were 2 would be (2-1)/2 or 50%.

Up to this point, he said, he had presented  "conventional" ideas within epidemiology. The the next concept, however, was one of his own characterization.

Legally Attributable Fraction 

He said he had wanted to apply the legal concept of balance of probabilities to the epidemiological notion of probability of causation. "The way I thought about the problem was this “cut point” where something is more likely than not ...greater than 50% probability."

He gave this quantity a name - the Legally Attributable Fraction (LAF). There was clearly some discomfort in the court with  the term 'legal' being bandied about by a scientist (Simon Potter registered an objection and Justice Riordan found alternative ways of expressing it), but the construct continued to be used by the witness throughout the day.

Mr. Siemiatycki explained that in a group where the probability of causation was less than 50%, none of the disease would be considered a "legally attributed fraction." In a population where  the probability of causation was higher than 50%, however, everyone would be included.

On Exhibit 1427.3, with a hypothetical probability of causation drawn underneath categories of smokers with increasing levels of cigarette exposure, he drew the LAF in red lines (all those with the probability of causation over 50%). The proportion of disease that would be not be considered to be legally attributable was drawn in grey lines (probability of causation less than 50%).

Every former student of calculus will be familiar with his next move -- translating the discrete steps into a continuous sloped line that represented the dose response risk. The more you smoke, the greater the risk - not in discrete lumps but in a smooth continuous way. Based on his review of several studies, he calculated that the slope of this dose-response line was .34, and that every additional pack year increased the relative risk of lung cancer by .34.

He defined a "Critical point [C] where the probability of causation hits 50%," and pointed out that mathematically "that corresponds to the level where the relative risk is equal to 2."  This is the amount of cigarette consumption at which a cancer patient can be thought, on a balance of probabilities, to have had his or her cancer caused by smoking.

The next building block in this exercise was to determine how many cigarettes someone would have to smoke for the relative risk to be equal to 2. His meta-analysis had suggested that for lung cancer, this would be 4 pack-years for men and 3 pack-years for women. (For larynx cancer, throat cancer and COPD/emphysema it was slightly higher, at about 5 pack-years).

No mathematical mystery. No fancy footwork. No voodoo. Just simple ideas, simply presented.

The bigger picture

At this point the lecture broke for lunch, and when the session resumed in the afternoon, André Lespérance moved to questions that involved somewhat more detailed explanations, and which laid the foundation for Mr. Siemiatycki's final explanations of why it is that even if the values underlying his calculation were adjusted somewhat, the general conclusions would not change greatly. In some detail, he showed how his calculations understated the number of cancers caused by smoking.

Mr. Semiatycki's professional life usually focuses on risks other than smoking, but nonetheless he recognzies tobacco use as a predominant risk for disease in Quebec. It is the double-whammy of a higher risk combined with greater population exposure that has put tobacco in a class of its own. "There is really no comparison in the magnitude of the impact they can have. One [tobacco] is enormous and the others [occupational and environmental exposure] beside it are small." 

The defence teams sit it out.

There were very few objections voiced today by any of the three defence teams.

Guy Pratte had been given the lead with this witness, and at one moment he tried to object to the introduction of term "legally acceptable fraction" that had not been used in Mr. Siemiatycki's 2009 report but which had, apparently, been used in the more recent version which has not been filed with the court.

Justice Riordan seemed satisfied that the elements of the idea were in the 2009 report and allowed the new concept to be discussed. This sounded like a significant set-back for the defence, particularly in light of the prominent role that this argument had taken in their sabre-rattling last week and yesterday.

We will find out tomorrow, when Jack Siemiatycki will be cross-examined. I think the risk that he might be allowed to use an iPad to illustrate his points is relatively small.

The cross-examination of Jack Siemiatycki is scheduled for tomorrow and Thursday.

Day 115: Jack Siemiatycki's "bald brutal facts"

For information on accessing documents, see note at the end of this post
It was a very expensive day for the tobacco companies who are defending against two class action lawsuits in Montreal. The plaintiffs had another star expert witness - epidemiologist, Jack Siemiatycki - and to counter his impact, the defense teams had brought out the high-priced help.

In addition to the 'team captains' that were on hand (Guy Pratte for JTI-Macdonald, for example, is an uncommon presence in court), the benches were strengthened with the specialty players, like Kevin LaRoche who seems to act as JTI-Macdonald's science guy. Even the public benches looked a little full, thanks to the presence of the industry's own team of experts who had flown in from the United States. Notebooks in hand, they sat with their handlers and watched closely, occasionally conferring.

The subject matter of Jack Siemiatycki's expert testimony would be enough to rouse the companies to an energetic defense, as it cuts to the core of the lawsuit. His job, as he describes it in his report (Exhibit 1426), was to "provide evidence and expert opinion regarding the causal links between cigarette smoking and each of four diseases [that are the subject of the Blais-CQTS case]: lung cancer; larynx cancer; throat cancer; and emphysema."

The efforts to blunt the conclusions of witness had started many years ago. Justice Riordan greeted him this morning by remarking on the large number of (contentious) discussions over the past five years that had involved his name.

Introducing Mr. Siemiatycki


Epidemiologist
Jack Siemiatycki

As André Lespérance guided Mr. Siemiatycki through some highlights in his CV, (Exhibit 1426.1), it became clear that this was a witness with a professional standing that could only strengthen his conclusions.
Mr. Siemiatycki (Ph.D in epidemiology and medical statistics) has cross appointments in Montreal's universities and has participated in key cancer research at IARC, and other government and inter-governmental research endeavours.

In addition to a publication record that is lengthy and cited (he boasts the highest ranking among public health researchers for publication impact), Mr. Siemiatycki is involved in some of the most ambitious epidemiological reviews, and sits on numerous scientifically prestigious committees.

It is not only scientists who value his work. His credentials have previously been recognized in Quebec courts, when he assisted the federal government in defeating a class action related to contaminated water near the Valcartier military, and helped Alcan fight back claims that its workers' lung cancers were caused by workplace exposure.
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So when it was Guy Pratte's turn to question his qualifications on behalf of the tobacco companies, it was not surprising that he chose against trying to dispute the credentials of this well-reputed scientist. Perhaps also he recognized that it might not be so smart for someone from a corporate law-firm to lessen the value of someone who might later be needed on the "defendant" side of the courtroom.

As a result, Mr. Siemiatycki did not have to endure the attempts that have been made to belittle or discredit other witnesses. Nor was he asked whether he had "joined the religion" against tobacco.

Instead Mr. Pratte wanted to know about the background to the reports he had prepared in 2006, revised in 2009 and then corrected in a 2012 report that had been circulated among the lawyers, but which Justice Riordan had ruled last week would not be presented to the court.

Mr. Pratte normally projects enormous self-confidence, so it was a little odd to hear his repeated references to inadequacies in his understanding of science and statistics. Acting might be a part of the practice of law, but acting dumb is not part of the usual repertoire in this courtroom.

After guiding the witness around the field for a bit, Mr. Pratte took him to what was clearly the main point -- the collection of smoking histories as part of a "Montreal 2" case control study. This data was collected from 1996 to 2001 and included information on smoking histories and lung cancer. It had been cited in other reports produced by Mr. Siemiatycki's research team, and Mr. Pratte wanted to know why it had not been used in the 2009 report.

Mr. Siemiatycki"s explanation seemed disarmingly frank. It wasn't his choice, he said, but was decided for him by the plaintiff's lawyers. "The instructions I had in 2009 when I revised the report were 'don’t change anything fundamental, because if you do the other side will scream blue murder'."  With so many studies on lung cancer and smoking, a meta-analysis was a "moving target" he explained.  He had been told to respect the 2005 "cut point."

Mr. Pratte continued to focus on the research and not the qualifications, as did Simon Potter and Allan Coleman later in the morning. The witness seemed genuinely perplexed by this line of inquiry. "Is this germane to whether I am an epidemiologist?" he asked, before being reminded by the judge to "please just answer the question"

He explained why he had shifted his analysis from the use Statistics Canada data to establish smoking history to the use of data from the "Montreal 2" study. "After I reviewed the critics' comments and saw that they were questioning the method I had developed, which I thought was clever but they didn’t,... I thought that if they want to question the use of the Statistics Canada data and how I transformed it, I have a better way to do it." 

As for the timing and why the new version was circulated so late in the game? "I have a day job that keeps me pretty busy and it was probably around spring of 2012 that I got around to focusing my attention on the criticisms and trying to think of how to accommodate them."

Not the messenger, but the message.

The companies finished their questions on Mr. Siemiatycki's qualifications just before lunch time, and the court recessed without any indication of whether they would formally contest his qualifications. When the session resumed, it became clear that the the concerns of last week were going to be re-hashed.

Simon Potter gave the first push. The witness might be qualified, he said, but the plaintiffs had contaminated the process. "Even if the witness is qualified and an expert in his particular field and even if in the normal way you would move ahead, the judge should use judicial discretion and not push forward down the path which is firstly perfectly unfair and secondly a manipulated path created by the attorneys on the other side."

After a few minutes, Justice Riordan begins to look impatient. "Didn’t I deal with this last week?" he asked. "Maybe we weren’t in the same place this morning – I am not following your arguments at all." 

Undeterred, Mr. Potter repeated his concern that the witness' corrections to his report, even if they were not formally before the court, had changed the situation. "As soon as we get into the criticisms [by the industry experts of Mr. Siemiatycki's report], which he is entitled to do ... it will be untenable for us to know what he is talking about if we don’t have the information." 

Justice Riordan reminded him that he had not only ruled on the topic, he "took the care of copying out and giving it to you. What’s your problem?!"

Guy Pratte gave it a try, asking for a "suspension" of a few weeks or months. He presented the same concern that his colleague, Kevin LaRoche, had tried last week that he would not be able to do his job properly unless they were given more time. (Kevin LaRoche had said he would have to report himself to the Law Society!)

Mr. Pratte's earlier claim to not understand the science was brought into play. "There are all these fomulas! Legally attributable fractions! and relative risks! I cannot master that in a week without the data," he protested. He did his best to sound like a math-hating Barbie, but if there is one thing that Mr. Pratte does not do competently, it is looking incompetent.

I think Mr. Coleman's additional short comments fell on deaf ears. As ITL's lawyer was speaking,  Justice Riordan was focused on his computer. A moment or two later, he read a statement from his laptop that reaffirmed his decision that the testimony would go forward. He sounded quite annoyed..

And so it was that shortly before 3:00 p.m., Justice Riordan recognized Mr. Siemiatycki as an expert in the following areas: epidemiology, epidemiological methods, cancer epidemiology, cancer etiology and lifestyle risk factors for disease and Mr. Lespérance began to ask his witness some questions.

Epidemiology 101

Mr. Siemiatycki was asked to explain some of the basics behind epidemiology -- how it had evolved (recently) as a discipline, what cohort studies aren and how prospective and retrospective cohort studies differ.

He stressed the "observational" nature of this science, and reminded the court of the health breakthroughs that had come as a result of this type of researcher. Fluoride and dental caries. Exercise and improvements in heart disease. HIV/AIDS and sexual transmission.

"There are huge benefits of epidemiological research that are put into every day life," he said, stressing that epidemiology allowed for health interventions before the biological underpinning of some diseases were understood.

From the beginning of his studies in the late 1960s, the link between lung cancer and smoking was held up as a model case study for epidemiological research. He explained that the Surgeon General's findings in 1964 that "average male smokers of cigarettes have approximately a 9 to 10 fold risk of developing lung cancer and heavy smokers have at least a 20 fold risk” had been based on pooled data from studies available at that time, although the term meta-analysis had not yet been coined. His own research on the Montreal 1 cohort study (Exhibit 1428) had produced similar results.

Gradually the questions and answers became a little more detailed. Mr. Siemiatycki tried to explain how confidence intervals were calculated (by computer programs, it would seem). His description of relative risk was made clearer by the novel use of the popular ipod "Paper" app. (If the defendants don't want Powerpoint - give them Paper!) He illustrated the need to control for confounding factors by pointing to the apparent higher death rate in Victoria than Shawinigan if the data is not "adjusted for age."

This first round of questions in the last part of the day felt like the warm-up to more substantive questions tomorrow.

Mr. Siemiatycki is scheduled to testify throughout the week.


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.

Day 114: Wayne Knox - the Wild Card

Time flew by on Thursday during the testimony of Wayne Knox in the 17th floor courtroom of Montreal's Palais de Justice. He was the forty-first witness at the tobacco trials, and one of the most informative, insightful and entertaining witnesses to date.

Wayne Knox

Mr. Knox is of an age when many have retired - "Seventy-one and counting!", he laughed as he answered the routine questions after being sworn in. But other than the physical signs of age (he looks like a slightly shop-worn Santa Claus), there was nothing about him that indicated that he was past his best before date. He voice was strong, and he used it to good effect, peppering his replies with anecdotes and details that suggested he has been following the trial with interest.  Many times his testimony sounded like a good dinner table conversation.

Mr. Knox was once in charge of the mighty market research department at Imperial Tobacco. He appeared at the trial on the heels of more than a dozen other former Imperial Tobacco employees each of which has arrived with the benefit of days or weeks of pre-trial interviews with the company's lawyers. So it was natural to expect that Mr. Knox would have similarly been contacted by the companies to discuss the documents that the plaintiff's had given notice they wanted to discuss with this witness. Natural, but wrong.

Although Mr. Knox had worked with Imperial as recently as 2011, he presents himself as an independent person and a citizen in his own right. This, I think, was the first witness in this trial who faced Judge Riordan without any sense of loyalty to either the plaintiffs' team which sat three feet to his left or to the defendants' team, sitting three feet to his right.

On the one hand, he used the term "we" when talking about past actions of the company, and was clearly proud of the successes he led or was part of. On the other hand, he never sounded like he was trying to protect or defend the past.

Independence of thought was a sub-text that ran throughout his testimony. He spoke of the openness with which the market research unit ran (Mr. Knox did not care if his "free spirit" colleague, Bob Bexon, put "crazy things" in the minutes of his meetings), and of his "strong-minded" and "principled" friend, scientist Pat Dunn. His own views on the harms of tobacco did appear to agree with those of his employer (he reported mostly agreeing with the Surgeon General's report, even before he joined the company in 1967), but he spoke of no pressure to conform in this area.

This was the first witness from Imperial Tobacco who did not seem scripted - and without the script, no-one seemed to know what to expect. Some of his answers may have been a disappointment to the plaintiff's team, and some were certainly unhelpful to the defence. He variously contradicted and confirmed story lines that have emerged during the testimony of previous witnesses - and he never failed to be interesting.

It felt like a new ball game was underway and over the first part of the morning, the legal teams adjusted their strategies to the change of play. Bruce Johnston -- usually the most hardline questioner on the plaintiffs side -- soon shifted his tone from confrontational to conversational. Deborah Glendenning -- the Imperial Tobacco lawyer who must hold some kind of legal record in the most-objections category -- soon let the questions and answers flow uninterrupted. Mr. Knox's testimony seemed to be a minefield she did not want to walk on.

Judge Riordan seemed highly entertained, both by the content of Mr. Knox's answers and by the dynamic being played out in front of him. He was not the only one watching with interest -- Reinforcements from Imperial Tobacco's communications and legal departments arrived with notebooks that were busily filled during the day.

Although Bruce Johnston showed only a handful of documents to Mr. Knox today, he asked questions that went over much of the ground on which this trial is being fought.

Were young people or non-smokers targeted by marketing?
"We didn't have to... Enough of them smoked on their own" he said. Moreover, the presidents he reported to, Mr. Ed Ricard senior and Mr. Paul Paré "felt very strongly that we did nothing to attract the young non-smoking people." He later acknowledged that "a company clearly knows it's important to have starting smokers, the way every company and every industry has a need for new people.".

Was smoking considered to be addictive within ITL? 
"Depending on the point of time and depending on the number of people, some of us thought that it was, some of us thought that it wasn't." "My view changed when the definition of addiction appeared to change ... they say that it's as addictive as heroin and stuff, which is ridiculous." "The scientists were far more concerned about addiction – a lot more and a lot earlier than marketing."

Is there a safer cigarette or safer way of smoking? 
"I agree with Gio Gori that fourteen  milligrams a day is the same as not smoking"  "I had no trouble with people believing that [a lower delivery product was safer] because I believed it myself."

Were cigarettes designed to be compensatible? 
He reported that "our scientific new product development people were looking at all kinds of different ways", he left the impression that his marketing team did not engage too much in these specifics.

Did the company try to prevent people from quitting?
"It was part of what we did with some of our brands, in terms of giving them an option to continue smoking. In effect that prevented them from quitting." 


More destroyed documents? 

One of the likely reasons that Mr. Knox had been subpoenaed to testify was to allow him to validate proceedings for a conference that he and ITL research director, Pat Dunn, organized in 1984. The Smoking-Behaviour Marketing Conference took place in the Laurentians, and involved scientists and marketers from BAT companies in the UK, Germany, Canada, Australia and the U.S.

A curious thing about the 506 page record of this conference -- it seems to have been missing from the files of Imperial Tobacco. Like the scientific documents that had been purged from the company's files, this and other marketing records appear to have been "disappeared."  Justice Riordan agreed today that this document should have been in the company files, and allowed it to become Exhibit 1366.2.

The conference, as Mr. Knox explained today, was intended to showcase the Imperial Tobacco marketing success to other companies in the BAT group.

Mr. Johnston drew attention to several sections from the conference notes, including the opening comments by ITL's research director, Pat Dunn:

The basic question that begs a response is how do we provide smoker satisfaction from a lower tar base with specifically enhanced acceptability traits and at the same time help our consumer rationalize his decision to smoke in light of increasing external pressures.

And a conclusion on market research:

There is some information relating to quitters but an inadequate data base on starting . Since our future business depends on the size of this starter population set, it was considered important that we know why people start to smoke and this may be more important than why they continue to smoke.

As the day drew to a close, it was clear that the plaintiff's wanted more time with this witness. He will return on Tuesday, March 12th.

Next week - epidemiology. Jack Siemiatycki is scheduled to be in court throughout the week. The battle of numbers will be in full swing.

Day 113: Throw enough mud at the wall and some might stick

Those whose confidence in the legal system is not on a sure footing did well to stay away from Courtroom 17.09 at Montreal's Palais de Justice today. The continued cross examination of the plaintiff's expert witness in chemistry at the tobacco class action trial was not a pretty sight.

Don't get me wrong. I am sure that the women and men in black frocks at the front of the room were doing their job exactly the way it is expected of them -- but, like parliamentary question period or pig slaughtering, it's hard to watch without thinking there is something wrong with this picture.

For four and a half hours today, industry lawyers shovelled a large quantity of government documents, scientific publications, and other seemingly-credible material before the eyes of Justice Riordan. The speed with which they set their conveyor belt obscured all but selected passages, leaving the distinct (if erroneous) impression that the companies were part of a scientific consensus and were harmonious partners with government.

This material was (a) presented out of context, (b) in a way that told a story about a third party (the government) who is not in court and able to challenge the misrepresentation, (c) sprung on the other side as allowed during cross examination and (d) based on material that is secret from the rest of the world. Nonetheless, it all seemed to be an accepted part of the process and within the rules.

This is just the warm up act, I had to remind myself. Wait till their real defense starts!

"They also serve who only stand and wait."

Although only one gave evidence today, there were actually two witnesses scheduled. In addition to André Castonguay, a second witness on deck was former ITL marketer, Wayne Knox.

Mr. Knox was a member of the mid 1980s market research team that made Imperial Tobacco the envy of its competitors (see Exhibit 762). His colleague, Bob Bexon, has only testified at this trial through his writings, as he died a few years ago in a bicycling accident. Mr. Knox likely knows much that could shed light on this important period at the company. If so, we will have to wait until tomorrow to hear it.

Mr. Knox spent the day cooling his heels as he waited to testify, and was only told late in the afternoon that his services were not needed today. He seemed pretty gracious about the situation - it was he who quoted Milton. Although he comes from out of town, there are worse places to have to kill time than Old Montreal.

Another problem with the system! Like Milton, Justice is blind. In this case, she is seemingly unaware of the inconvenience caused to those who have no choice but to heed her call.

Throwing more documents at André Castonguay

After Mr. Castonguay was sworn in, Suzanne Côté quickly picked up where she had left off last Thursday. She plucked document after document from the half-dozen large binders sitting on her desk, and drilled down a fat list of questions.

Was the witness aware of the 1972 conclusion of the UK Scientific Liaison Committee that that cautioned that smokers could "without realising it, nullify any beneficial effects from change to lowe-tar yield cigarettes.”?  ...  Did he know that this was quoted in a letter from the Minister of Health, Marc Lalonde?  Did he know about this press release from the Minister? No? Well how about this other one? Or yet another?

It went on and on.

Unlike last week, Ms. Côté put these documents on the court record and said she would later do so with those previously presented. When they are available electronically they will have Exhibit numbers 2007, 2008, 2009, etc.

The price of any fuzzy thinking or indecision - let alone bone-headed decisions - within Health Canada and Agriculture Canada over the past five decades seems to be to allow the tobacco industry to create its own narrative around these events. The plaintiffs have had access to these 160,000 documents for only a week, and were in no position to counter this mischief.

Although Mr. Castonguay often seemed little more than a ship of convenience to get these documents to court, he was not spared challenges to his report, (Exhibit 1385 and an English translation).  Ms. Côté encouraged him to reconsider his conclusions regarding the industry's role in the sale of low-tar cigarettes, its failure to disclose its method of better measuring smoking behaviour, its failure to disclose experimental results on the mutagenicity of its products, etc.

From where I sat, André Castonguay seemed to withstand fairly well her attempts to rattle his confidence, to wear him down, and to trap him into admissions. But he could not protect himself from being in the awkward position of being forced to answer well crafted questions on 'surprise' material which was more often than not out of his experience and expertise.

Ms. Côté's questions took up the entire morning. She knew how long a rope she could take in her questions, and explored the distance it gave her thoroughly. At the outset of the day, Justice Riordan had weakly suggested that less might be more, but after sighing "if you insist," he accepted the situation.

It was only after lunchtime that the second cross-examination, by Doug Mitchell for JTI-Macdonald, began.

Mr. Mitchell trotted out some stinky old canards.  Isn't it true that there are carcinogens in all our foods - and that there is no safe level of exposure to sunlight? Doesn't every alcoholic beverage also contain carcinogens? Aren't there benefits to nicotine - and doesn't it  reduce the risk of Alzheimers or Parkinson's disease?  I think I was not the only one in the room taken aback by this approach.

By the time the plaintiff's were able to respond with questions of their own (the 're-direct'), there were dozens and dozens of rabbit holes to chase down. They ignored most of them, returning to a few key messages and some rebuttal to a couple of documents.

At the end of a long day, André Castonguay was thanked by the judge and sat down. I don't know how he felt, but I was worn out and disgruntled by just watching events.

Some decisions are made out of the room

Some of this trial takes place behind the doors of private communications between lawyers. A case in point is the discussion once-anticipated for tomorrow regarding the receivability of the industry's 'pre-defense' motions.

Justice Riordan had said he wanted to hear arguments on the matter, and had required the companies to circulate their justification in writing last week. The court record which holds those files is a little out of reach, so I don't know how persuasive that justification was.

But for whatever reason, it would seem that tomorrow's discussion on these points is no longer needed. The companies will be able to present a pre-defense motion, and it will be scheduled for discussion after the plaintiffs have finished their case (i.e. in April).

As for the other motion they wanted to put forward regarding the use of exhibits entered according to the May 2nd judgement, Justice Riordan firmly shut the door without hearing a discussion. He said he had returned to the subject as often as he intended to and that the companies could "raise it in your appeals" after his rulings.

Tomorrow, some procedural issues and the postponed testimony of Mr. Wayne Knox.

Day 112: How many epidemiologists does it take to change a light bulb?

Six.  One to change the bulb and five to critique the method.


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

There was a lot of unintended humour in this morning's discussion about the forthcoming testimony of noted McGill epidemiologist, Jack Siemiatycki, at the Montreal tobacco trials.

This discussion came in lieu of Dr. Guertin's testimony, which had ended a day earlier than expected.  (Is it a courtroom application of Parkinson's law that arguments expand to fill the time available?) The key question under debate was whether Mr. Siemiatycki should be allowed to testify as scheduled next week.

Mr. Siemiatycki had been engaged by the plaintiffs to give an epidemiological review of the four diseases covered by the Blais-CQTS lawsuit and to estimate the numbers of Quebecers affected. (For those who don't like suspense, his answer is that "from 1995 to 2006, there were 110,282 Quebec residents who suffered from one of the four diseases and who would have had probability of causation greater than 50% that the cause was cigarette smoking.")

Click to enlarge - Siemiatycki estimates 

His long expert report, written in 2009, makes clear that he did not pull those numbers from a hat. He supports his findings with 50 pages of descriptive analysis and 33 pages of tables. To this belt of method, he then adds the suspenders of a 97-page appendix of previous epidemiological reviews.

But rather than settling the matter, these 200 pages of research material provided fodder for criticism from willing hands engaged by the tobacco companies. (Links to critiques of the industry witnesses are at the end of this post).

Five US-based consultants had criticized, among other things, the studies that had been included or excluded from Mr. Siemietycki's analysis, the approach he took to estimating smoking histories, and the absence of a way of distinguishing between diseases that had been caused by wrongful tobacco marketing and those that had resulted from fault-free marketing. In addition to these concerns, there are many many complaints about epidemiological methodology that are lost on me.


Damned if you do.  Probably damned if you don't. 

A comprehensive response by Mr. Siemiatycki to these criticisms was clearly no small task.

About a month ago, Mr. André Lespérance informed the court that his expert had indeed prepared a response to his critics, and that this reply involved some new data. He undertook to provide the information by this week (February 8-11), and sought guidance on whether a powerpoint presentation could be used as a tool to simplify the communication of his response. (There was no wide agreement on the use of powerpoint, which seems a pity given the state of science literacy in Courtroom 17.09).

The material was apparently circulated last Friday, as promised, and the reaction was fast and furious. Each of the companies' lawyers was in high dudgeon this morning about the length of the additional material (102-pages), the length of time that had elapsed since their criticisms were levelled and the response was circulated (two years), and the inclusion of new material - even when new material had been demanded by the critics.

Before the session opened, Mr. Lespérance was seemingly trying to persuade the other side to come to an agreement on how to proceed, but to no avail. With three angry opponents threatening to block next week's testimony, he rose at the beginning of the session to present the issue to Justice Riordan and to propose three options to manage opposition. Each of these proposals would have deferred all or portions of Mr. Siemiatycki's testimony.

Jaws dropped when Justice Riordan raised the offer for the plaintiffs before discussions began. "I see a fourth option," he said. "We could do it as foreseen, and I will hear objections and rule on them at the time." At this comment from the bench, faces on the plaintiff's side relaxed (I am sure I saw a "thumbs up!" signal pass among them), and the lawyers for the defendant companies stiffened in their seats.

Simon Potter (RBH) was the first to detail his objections. With his trademark drama he waved the new report in the air (Justice Riordan decline the offer of a copy). His major complaint seemed to be that Mr. Siemiatycki had done the work his critics suggested. 

"Included is a huge piece of work done by Siemiatycki himself! ...  The new report is replete with the words corrected or revised ... Instead of responding to criticism by saying he didn’t have to [make the changes his critics demanded], he has now put in a massive amount of work...."

Kevin LaRoche (JTI-Macdonald) who is an infrequent presence in this courtroom, was less over-the-top in vocal mannerisms but no less melodramatic in his objections. "Not only do the [industry] experts need time, but I need time. The suggestion that this gentleman should be able to stand up next week is inconceivable to me." 

How dire was it in Mr. LaRoche's view? Bad enough to call in the benchers and report himself for not being able to represent his client!

"I should have to call up the Law Society and report myself... "I am not in a position to understand the information ... I wouldn’t know what to object to. ... It's just not on!"  (This was only one of the moments this morning when I was grateful to be sitting at the back and not obliged to keep a straight face)

Imperial Tobacco had dug deeper into its talent bank, and today introduced yet another Osler Partner from Toronto to the case. Mr. Allan Coleman, in the face of some gentle-but-pointed ragging from Justice Riordan over his unfamiliarity with Quebec court manners, clearly and politely presented his arguments that the companies should be able to review the data behind the response.

When he began his reply to these concerns, André Lespérance made the mistake of referring to past grievances about the conflicting experts not being allowed to meet face to face. Justice Riordan has no appetite for whingeing, and this provoked a sternly-toned reprimand from the bench: "The debate is not because of the absence of a discussion, but because you want to present something new. I warned you that you were opening the door to problems." 

Mr. Lespérance got quickly back on track and explained that that his expert had done as he should have done by responding to the criticisms, by doing further work, and by making the details of this work available in advance. He pointed out that an expert witness was entitled to respond to criticisms. If the additional work was not appreciated, so be it. "We can live with his first report."

Justice Riordan came back to his starting point that next week "should follow the normal procedure."

Simon Potter tried to persuade him that it was hard to go back -  "the toothpaste is out of the tube" - but seemed to realize that he was fighting a losing battle. "I will sit down before I make things worse," he said. And did.
.
Before calling a pause to go and write out his decision, Justice Riordan reflected "I see this as something of a tempest in a teapot ... Science shouldn’t be as controversial as it seems to be here."  Perhaps he has never met an epidemiologist.

His decision was foreshadowed in the faces of the legal teams as they waited for him to come back with a ruling. The plaintiffs were smiling, and chatted freely as they went down for coffee. The defendants gathered tightly for a hushed conversation.

His ruling was yet another example of his determination to keep this trial rolling and his desire to limit the "replies to replies" between experts.

Next week Mr. Siemiatycki will testify, as scheduled, on his 2009 report, as well as on his response to the criticisms of it. The plaintiffs may seek permission to file other material to support his opinion, but not the new report that was circulated. Within a defined timeframe, the defendants can ask for background information, call Mr. Siemiatycki back for a limited further cross-examination, and offer one response from an expert who has met with Mr. Siemiatycki.

Jack Siemiatycki's critics.

The companies have hired the following experts to provide responses to Mr. Siemiatycki's report.

Kenneth Mundt. His 27 page report offers wide-ranging criticism of Mr. Siemiatycki's analysis, without providing any estimates of its own.

Laurentius Marais.  He derides what he calls "opinion-based estimates" in his 124 page detailed critique,

Dr. Sanford Barsky He includes in his rebuttal to Dr. Alain Desjardain's opinion some criticisms of Mr. Siemiaticki's findings.

Dr. Dale Rice. He who similarly includes criticisms of Mr. Siemiaticki's findings in his rebuttal to Dr. Louis Guertin's expert opinion.

Mr. Bertram Price. He provides a competing analytical framework and proposes a different method for linking smoking, wrongful behaviour by companies, and disease.

The rest of the day ...

.... was devoted to tabling documents that had been made receivable as a result of Justice Riordan's "2870" judgements (now before the Court of Appeal), and some that were being filed under the umbrella of his "May 2" judgement. There were scores - maybe a hundred - of these documents.  More on them in future posts.

Tomorrow, two witnesses will be present. The cross examination of André Castonguay will continue (and likely end). Mr. Wayne Knox, a former marketer with Imperial Tobacco, will make his first appearance.

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.

Day 111: Surgical precision. Surgical speed.

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

Today was Dr. Louis Guertin's turn to testify as an expert witness in the joint-trials of the two Quebec class-action suits against the "Big Three" tobacco companies. He did so in near-record time.

Dr. Guertin is an otorhinolaryngologist and cervicofacial surgeon (ear, nose and throat doctor and head and neck surgeon are both easier to say) who practices at the Notre Dame Hospital, which is part of the University of Montreal hospital network (CHUM) and is located only 3 km north-east of the courthouse.

Today's testimony provides a second view from the front-lines of treating some of the diseases caused by smoking. These are the cancers of the lungs, throat, larynx or emphysema that are the subject of the Blais - Conseil québécois sur le tabac et la santé" class action .

"Cancer of the lungs, throat, larynx or emphysema." Well, would it were that simple.  As these witnesses describe it, the language used in both the claim and the certification judgement is at odds with the way that medicine would define these consequences of smoking.

Last week, Dr. Alain Desjardins spoke to the need to see emphysema within the broader set of COPD (chronic obstructive pulmonary disease). Today's sticking point was the definition of throat cancer. More about that in a minute.

Introducing Dr. Guertin

Dr. Louis Guertin

On the plaintiffs side, Michel Bélanger is the longest-serving veteran, and one who has been involved on the Blais case since it was first filed in 1998. (Don't expect it to be resolved quickly, he told a journalist 14 years ago)

Not surprising, then, to see him again at the front of the room as his second expert witness, Dr. Guertin, was introduced to the court to have his qualifications assessed.

Mr. Bélanger wasted no time in presenting Dr. Guertin's CV (Exhibit 1387.1), nor in highlighting the specialists' long experience in ENT and head and neck cancers. Within 10 minutes he was formally asking Justice Riordan to qualify Dr. Guertin as an expert in otorhinolaryngology and cervicofacial surgery.

From the other side of the room, Jean-Francois Lehoux also kept his questions on the witness' qualifications quite brief. He may have wished that he had been even briefer.

Over the past week, Mr. Lehoux has been steadily trying to present epidemiology as such a rarified and specialized field that experts in related disciplines can't refer to knowledge based on epidemiological research without being certified as "experts" in this area. ("Smoking causes cancer" would be such a finding!)

Dr. Guertin didn't buy this argument. "The study of medicine involves epidemiology," he said.  "In 2013, a physician needs to be comfortable in these fields."  Not an exhalted specialty, but part and parcel of every day work.

This reply seemed to cut the rug out from under Mr. Lehoux's request a few minutes later to amputate from Dr. Guertin's report and conclusion those sections which had relied on epidemiological findings. Justice Riordan did not even deign to directly reply to this request (until prompted by the plaintiffs for clarification), and quickly ruled Dr. Guertin was qualified in the areas requested.

"You can't remain indifferent"

In some respects, Dr. Guertin fits the stereotype of a surgeon: Self confident. Quick. Decisive. Certainly today he did not hesitate to defend his own opinions or seem tempted to lapse into group-think.

He also spoke passionately about his work and his patients. One of the more emotional moments in this entire trial came as he responded to a criticism that his report "emphasizes worst case scenarios" and that he was exaggerating the hardship of cancer treatment.

Dr. Guertin literally "held court" for several minutes as he ran through a litany of dire outcomes for the (mostly) men who are treated for these cancers. He cited the high number of patients who died, and how quickly they died. He spoke of the unpleasantness of living one's remaining life being fed through a tube, sometimes even a tube directly inserted into the stomach.

Some of the side effects of treatment were so severe, he said, that some patients chose not to take treatment.  "It is honestly one of the worst cancers – I am not trying to minimize the others. This cancer is located where you breathe. It is located where you communicate. It is located where you eat. Those in palliative care tell us that it is among the worst." Imagine, he said, "to die without being able to talk to your family."

During this impassioned speech, Justice Riordan was not the only one looking intently at the witness. When he finished, it took a moment for the mood of the court to return to normal. (Well, normal for this month, which continues to be more cordial than when the proceedings are in English).

Later in the day, Jean Francois Lehoux asked Dr. Guertin whether he "had joined the religion against tobacco." The same question had been asked of chemist André Castonguay last week.

"Not yet," replied Dr. Guertin. "It is not a religion. But I see things that need to be addressed." He spoke of his struggles to convince friends to quit smoking. "When you have seen the suffering that I have seen you can't remain indifferent."

Drs. Guertin and Desjardins vs. Drs Rice and Barsky

At some point, Justice Riordan will have to chose between the views of physicians engaged by the plaintiffs, (Dr. Guertin and Dr. Desjardin, both Montreal-based) and the physicians who have been hired to critique their work, (Dr. Dale H. Rice of the University of Southern California and Dr. Sanford Barsky of the University of Nevada).

It might occur to him that the plaintiffs were able to find men within a half hour walk or drive from the courthouse who were able to speak of their daily exposure to the casualties of smoking, but that the industry could not (or would not) find medical witnesses closer than 4,000 km away.

Or, as Dr. Guertin said of his critic today. "Dr. Rice may be on another planet."

The expert report

Dr. Guertin's report is available in the official French version (Exhibit 1387). An English translation  was prepared by JTI-Macdonald for the use of Dr. Rice, who wrote a rebuttal opinion.

The 24-page report provides a very readable explanation of how "throat" cancers and how these cancers are related to tobacco use, and how debilitating the effects of treatment are for the minority of patients who do not die from these cancers. It explains why it is that the other risk factors for these cancers (family history, alcohol use, etc) play a much smaller role than tobacco. It concludes that "cigarettes are the main etiological agent in the occurrence of nearly 80% to 90%" of such disease and deaths.

"The throat is not a scientific term."

Larynx cancer and throat cancer are sometimes referred to interchangeably (including by Health Canada), but Dr. Guertin explained at length today that the throat is not scientifically defined. He said there is no current agreement about what constitutes "throat cancer" . (Honestly, I don't think that the person who wrote the claim was a doctor, he told the court). 

In his view, the cancers that should be included in this definition during this trial are those cancers caused by smoking that are in the upper aerodigestive tract. Specifically, that would include cancer of the larynx, oropharynx, hypopharynx and oral cavity.  There are a smaller number of cancers not caused by smoking which he removes from his calculation of 1,000 new cases of smoking-caused throat cancers every year in Quebec.

Other assessments were shared with the court. Dr. Rice would not include cancer in the oral cavity as a "throat cancer," nor would plaintiffs epidemiologist Dr. Jack Siemiatycki. On the other hand, the US National Cancer Institute includes cancer of the upper nasopharynx, which Dr. Guertin did not include.

These other perspectives did not contradict his opinion, Dr. Guertin said, but rather they "confirm my point that it is a challenge to define throat cancer.... people are trying  to give as clear a definition as possible, but there is not one that is agreed to." 

If oral cavity cancers were not included, his estimate of the number of cancers in Quebec would be reduced by 24%, he said.

The cross examination

Jean Francois Lehoux, who represents Rothmans, Benson and Hedges, was the only industry lawyer to ask questions today. The pattern of his questions was almost identical to those he put to Dr. Desjardins last week -- aimed at getting a medical opinion on the court record that validates the industry's desire for individual medical assessments of potential class members.

Dr. Guertin did not always provide the answers Mr. Lehoux was likely seeking. He pointed out that biopsy results were kept on file for many years, and that these would be sufficient to "confirm" a diagnosis of cancer, even if they were insufficient for clinical treatment purposes. He did not think that detailed individual histories of smoking behaviour were necessary to conclude the probable cause of a cancer was tobacco.

Nor did Dr. Guertin give much credence to Mr. Lehoux's suggestion that alcohol was an important factor in such cancers. In the absence of tobacco  use, it required very heavy drinking for such cancers to emerge, he said. Only 5% of his patients were people who drank, but who had not smoked. These patients, however, were not "social drinkers" but were "heavy alcoholics" who consumed 10 to 12 drinks each day. In more normal circumstances, alcohol acted as a "multiplier" on the risk of tobacco to smoking, making it even more likely that a smoker would get throat cancer.

Neither Mr Bélanger nor Mr. Lehoux used much more than an hour to ask their questions of Dr. Guertin. By 3:00 p.m. Justice Riordan thanked the witness and told him he was free to leave.

Notes on developments in other courts

When the discussion turned to how to use the time suddenly made available tomorrow, a few nuggets of information about other developments on the trial were shared.

Imperial Tobacco is asking the Quebec Court of Appeal to review Justice Riordan's January 10 ruling on "2870" documents, and may similarly appeal his second ruling on the topic.  The company has also - for the first time - prepared a request for the Supreme Court of Canada to review the Appeal Court's December 14 ruling regarding privilege which relates to testimony of David Flaherty.

Dr. Guertin's testimony finished a day early. Tomorrow, the plaintiffs will enter more documents on the court record. On Wednesday, Mr. André Castonguay will return and (possibly) complete his testimony. A new fact witness - Imperial Tobacco marketer, Wayne Knox - may also testify. On Thursday, arguments about the industry's right to file pre-defense motions will be heard.

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.

Day 110: A volley of questions to André Castonguay

Today was the first time that the tobacco companies have mounted an extended cross examination of a plaintiff's expert witness in the Montreal tobacco trials.

In the steady flow of questions that Imperial Tobacco's lawyer, Suzanne Côté, directed to chemist André Castonguay over the long day there may be hints about how her team will manage their defense once their turn comes to present their case later this spring.

Two things seemed clear. One is that Justice Riordan's wishes don't weigh very heavily in their tactical decisions. Yesterday, in return for not insisting that they move into their cross examination mid-afternoon, the judge had unmistakeably signalled that he wanted the examination of this witness to be finished today. But from the moment that Imperial Tobacco's team moved in this morning with a mover's dolly of boxes and plunked five thick binders down on the witness's desk, it was clear that they were there for the duration - and that if five documents could do the work of two, so be it.

The second message was that the removal of the federal government from their case has not altered their intention to deflect responsibility to the government for any wrong doing in the way that cigarettes were made and sold.

The long shadow of the 'action in warranty' against the federal government.

It has been almost three months since the federal government was released from this case, after the Quebec Court of Appeal disagreed with Justice Riordan's decision to keep them as co-defendants because they had dragged their heels and not made a more timely exit.

Over the four years leading up to their liberation on November 14, the federal government was obliged to provide the industry with hundreds of thousands of documents from its records.

In the normal way of things, the plaintiffs would have also received copies of these documents and would have integrated them into their databank of materials received from all three tobacco companies and, just recently, the CTMC. For unexplained reasons, this never happened. As a result, when the federal government got its discharge papers the plaintiffs found themselves in the awkward position of the industry building its case on documents the plaintiffs had no access to.

I had been puzzled about how the plaintiffs could be entitled to receive these documents after the federal government had no official role in the case. It is clear from  reports such as that written by industry witness, Robert J. Perrins, that these records included "advice to the Minister" and other files that cannot normally be shared with third parties or the public. (Believe me, I've tried!).

This morning the court learned of the creative legal solution that had been found to allow the entire record to be shared with the plaintiffs. The Justice Canada lawyer who had been responsible for the case, Nathalie Drouin, arrived at court with both a CD and a subpoena in her hand. The CD contained electronic copies of 650,000 documents spanning  3,400,000 pages of material.

It was the subpoena served by the plaintiffs that had brought Ms. Drouin to court and that proved to be they key for the materials to be handed over. She brought with her a draft of the directions she wanted Justice Riordan to issue that would require the government to release the material and would require the plaintiffs to treat it with the usual confidentiality. Justice Riordan obligingly read out these negotiated "orders". All that was missing was the gift-wrapping.

The job done, Natalie Drouin and her colleagues left the room. Had they stayed, they would have heard how important these government records seem to be to Imperial Tobacco's defense.

Suzanne Côté's rapid-fire cross-examination of André Castonguay.

Suzanne Côté

For the most part, the industry legal teams switch-up their bench, and make sure that the lawyers directing the play have the same mother tongue as the witness' testimony. As most of the former employees who have been witnesses have chosen to speak in English (even if their mother tongue is French), this has meant that the Ontario-based lawyers have usually lead Imperial Tobacco's defense in this case.

The plaintiff's expert witnesses from Quebec have naturally chosen to testify in French, and so the Quebec lawyers are front and centre at this part of the trial. Suzanne Côté today moved to the driver's seat, a place she frequently holds during Imperial Tobacco's legal arguments, but less often for witness testimony.

Although cordial and professionally polite, her ferocious energy, stamina and obvious smarts make her a little intimidating to watch. I am sure it is even harder to stand three feet away from this energy-centre. I don't think questions could have been been asked any more quickly, and I doubt that even a teenage girl could have out-talked her today.

As she kept up her rat-a-tat-tat of questions, Ms. Côté barely stopped for a sip of water or to shift her weight on her (stiletto) heels. She did not need to pause to think and she segued smoothly from answer to  question, document to document, topic to topic.

André Castonguay must have felt like he was trapped in a batting cage with a pitching machine set on "fast". There was indeed a machine like quality to her questions in that they were dispassionate and without the animosity or false-warmth that is sometimes shown by her colleagues.

Everyone in the room - including the plaintiff lawyers -- seemed to sit back and watch, as though they knew there was no stopping her. A couple of times Bruce Johnston drew Justice Riordan's attention to the fact that her questions were trespassing over the boundaries that were repeatedly set for their side (i.e. questions involving events after 2000, or events in other jurisdictions). Justice Riordan brushed these aside, but with a bearing that suggested he just wanted the day to be over, and that he felt the best course of action was to ride it out. He took few notes, and asked only one or two clarifying questions of his own.

Trying to blur the lines between directing minds and regulating bodies

André Castonguay's report (Exhibit 1385 with an English translation) is a comprehensive review of many chemical-related aspects of cigarettes over many decades. In it, he contrasts the state of knowledge of independent scientists or health authorities with the scientific knowledge within the industry. Because he report was written in 2005, before the Canadian companies disclosed any documents to the plaintiffs, it relies on documents pulled from Guildford or from the Legacy site.

Very little of Mr. Castonguay's report was addressed by Ms. Côté's questions. Instead, she used his explanation of smoking machines, the sorry chapter of light cigarettes and other portions of his report as spring boards to flash before the court dozens of documents, many of which were pulled from the still-secret trove of government documents.

One theme of her questions was the suggestion that the company was on the right side of history on some scientific errors, and that its enlightened view was ignored or pushed aside by health authorities. For example:
* She showed almost illegible copies of news stories from the Ottawa Citizen and London Free Press in the early 1960s where Imperial Tobacco President, JM Keith, said that smoking machines were unreliable as they did not reflect the way cigarettes were actually smoked. "There are too many subjective factors in the smoking of any product, Mr. Keith said, citing the speed at which a person smokes, how much he smokes and the number of puffs." (London Free Press)
* She displayed a book on "Smoking Behaviour" published by BAT Scientist, in which SJ Green concludes  "[I]t is doubly unfortunate that machine smoking under fairly arbitrary conditions, probably different from those of any known human smoker, should be so often and so wrongly regarded as equivalent to human smoking.”

This theme was repeated in a series of questions about some of the more notorious chemicals found in cigarette smoke, tobacco specific nitrosamines. She showed documents that suggested that (a) Canadian companies had lower levels of these compounds than U.S. blends, (b) levels were further reduced in the 2000s as a result of industry changes to curing practices, (c) the federal government refused to endorse these changes when asked to and (d) IARC didn't even include these chemicals on the list of "known human carcinogens" until 2007.

Another series of government documents seemed designed to establish that the federal government was not "ignorant" when it recommended low-tar cigarettes, but that it had pushed for the reduction of tar in a considered, science-based, and consistent fashion. Press release after press release from the 1970s was flashed quickly across the screens.

In a similar fashion, recommendations by the Canadian government and some independent scientists to reduce the number of cigarettes smoked were the basis of questions pressing Dr. Castonguay to acknowledge that any industry suggestion to "smoke in moderation" was supported by science and government.

Dr. Castonguay didn't have too much choice but to keep his replies short. He resisted her attempts to blur the line between the quantity of a smoke "yields" to a machine and the actual "delivery" to a smoker. He firmly maintained the distinction between toxicological prudence in reducing exposure to harmful substances and epidemiological evidence that doing so will result in measurable benefit. Often his answers merely served to validate her claims about the historic existence of views that support her company's defense.

By the end of the day, Ms. Côté's work seemed far from completed and Rothmans, Benson and Hedges was still in queue with a few hours of questions, as well as JTI-Macdonald's "few".  Mr. Castonguay was asked to return next Wednesday.

The road ahead

Only somewhat bleary-eyed after the day's romp through dozens of documents, none of which were put into evidence, Justice Riordan opened discussion on the task ahead of him next week when he will be asked to rule on whether the industry should be allowed to propose some "pre-defense" motions. (Debate on the subject is scheduled for next Thursday, and written arguments were to have been circulated among the parties last week).

He tried without success to get the plaintiffs to signal how they would respond to the industry's arguments that pre-defense motions should be receivable (apparently the written pleadings offer some precedents).  Mr. Lespérance's response was focused more on the can of worms that would be opened if such motions were discussed, such as his own team's interest in returning to a decision to strike out some of the defense claims that was put on ice earlier in the process.

It would appear that next Thursday, this case will come to another fork in the road!

The next medical expert witness to appear in this trial, Dr. Louis Guertin, will testify on Monday and Tuesday. On Wednesday, Dr. Castonguay will return and former ITL marketer, Wayne Knox, may be called as a fact witness.