Monday, 4 February 2013

Day 107: The body count begins

Michel Bélanger
When the trial of the Quebec tobacco class action suits resumed this morning after last week's break, there was a switch in the line-up at the front of the room. There was also a switch of subject matter - for the first time the testimony is focused not on the action of the companies, but on the impact of their products on Quebec consumers.

Michel Bélanger is a veteran on the plaintiff's team who usually plays a coordinating role from the back of the room. Today he had moved to the front desk. Across from him was Jean-Francois Lehoux, who is a member of the team representing Rothmans, Benson and Hedges.

Dr. Alain Desjardins

Between the two men newly on the front bench and standing directly in front of Justice Riordan was Dr. Alain Desjardins, a 52-year old Montreal lung specialist who is the plaintiff's next expert witness.

Dr. Alain Desjardins
Dr. Desjardin's qualifications as an expert clinician in lung disease were not in much dispute. Perhaps his impressive CV, and his status as a "home-grown" expert made him a poor choice for the kind of theatrics that were displayed before Robert Proctor and Richard Pollay testified.

With no real objections to his qualifications, it took less than half an hour for Justice Riordan to accept Dr. Desjardins as an expert witness, his first such experience in court. There were a few clues to his newness to the task, and it took him the first part of the day to adjust his answers to the interest level of the lawyers (and judge).

The task of explaining science in this trial is not an easy one. There do not seem to be many science keeners among either legal teams, and Justice Riordan seems less engaged on scientific questions than on legal ones. The mood in the court during Dr. Desjardin's testimony had the feeling of a (well behaved) science class where everyone is watching the clock, waiting to be sprung.

Dr. Desjardins testified in French, and also wrote his expert opinion (Exhibit 1382) in the primary language of this province. This is so unusual at this trial that it is worth remarking on. There was an additional noteworthy 'change in language,' as today's proceedings were more than usually polite and even-toned. When impatience and irritation were expressed, it was in diplomatic tones.

Dr. Desjardin is the first witness to address the diseases caused by smoking in Quebec. The discussion today touched on several key questions that this trial may have to address -- at least if the lawsuit is successful at finding fault against the companies. How to measure harm? How to prove it?

Thousands of patients, few recoveries

Dr. Desjardins estimates that over his 23 years in practice he has had thousands and thousands of patients referred to him and gave over 130,000 consultations. Of the 25 new patients he sees each work day, he reports that 85% are smokers or former smokers who have, on average, a smoking history of "20 pack years". (He explained that a pack year is calculated at 20 cigarettes per day for a year, or 10 cigarettes per day for 2 years, etc).

In a tone of voice that sounded detached from the human toll of the information he was sharing, he described the pathology tests that confirmed lung cancer in about 10 per cent of his patients. Most of these cancers are not treatable, he said, and even those that are treatable rarely result in a patient living more than 5 years after diagnosis. He reported that lung cancer treatments are laden with debilitating side effects and serious complications.

A lung cancer patient is "virtually condemned to death," said Dr. Desjardins, and he held out little hope that the barriers to improving screening for lung cancer at earlier, more treatable stages, could be overcome.

Dr. Desjardins was asked by Mr. Bélanger to clarify the difference between 'primary' and 'metastatic' lung cancer -- the first being a cancer that starts in the lungs and the second being one which has spread to the lungs but which originated in another part of the body. His clinic only treated primary lung cancers, he explained.

Pre-emptive testsimony

The reason Mr. Bélanger wanted this on the record became clear, as passages from the tobacco company's expert witness, Dr. Sanford Barsky, were put to Dr. Desjardins for comment. (Dr. Sanford Barsky has appeared in U.S. trials on behalf of tobacco companies on multiple occasions.) These included comments about confusions over primary and metastatic cancers, references to other risk factors and diagnostic concerns

Dr. Barsky's opinion, prepared at the request of JTI-Macdonald, contains some unusual views for a medical scientist. Dr. Desjardins was asked to comment on Dr. Barsky's view that attributing cancer to smoking should be done with caution as "It is significant that a minority of all smokers develop lung cancer and not all persons with lung cancer are present or former smokers."

Dr. Desjardins was not impressed. "My reaction is that this reflects a considerable misunderstanding of epidemiology" he said.

Mr. Bélanger asked Dr. Desjardins for comments on parts of Dr. Barsky's report that suggest that other forms of lung cancer, like lymphoma, are not related to smoking. Dr. Desjardins agreed that such cancers did exist, but testified that he had only seen 3 of these types of cancers in his 23-year professional experience.

Jean-Yves Blais: the medical case behind the legal case 

Jean-Yves Blais
Jean-Yves Blais was a smoker who became ill with both lung cancer and COPD. As the 'face' behind the current lawsuit, his medical records were reviewed by both Dr. Desjardins and Dr. Barsky. Dr. Desjardins had also met with Mr. Blais, who died in the summer of 2012. (In his cross-examination, Mr. Lehoux made a point of the "weakness" of Mr. Blais' lung scan's having been destroyed, and only the reports being available for later opinions).

Mr. Blais was a man who had experience with many risk factors. He had worked in many industries with occupational health challenges - textiles, mining, heavy equipment, construction.

Nonetheless, Dr. Desjardins had no hesitation in attributing the probable cause of his lung cancer to smoking, and in defending this conclusion in the face of Mr. Lehoux's questions.

COPD vs. Emphyzema

As a lung specialist, Dr. Desjardins also treats Chronic Obstructive Pulmonary Disease (COPD) and the diseases included within that category. Like lung cancer, 85% of those suffering from COPD do so as a result of tobacco use, he testified. COPD is not reversible, he said, although treatment (and quitting smoking) can slow its progress.

Chronic Bronchitis, Emphysema, Asthma
and COPD
The inclusion of COPD in this case became an open question during the day. When the Blais lawsuit was filed in 1998, and when it was certified by Justice Jasmin in 2005, the focus was on  emphyzema, and not COPD.

Now the question is (or at least the questions put to Dr. Desjardins by Michel Bélanger and during Jean-Francois Lehoux's cross examination)  whether those suffering from non-emphyzema COPD should or should not be included in the class.

My impression was that this distinction will be the subject of future discussions (and rulings).

Should there not be an admission?

Mr. Bélanger's last question to his witness  concerned the discrepancy between Imperial Tobacco's position in this case and its own scientific briefings. He showed the witness a 1976 BAT study that had been among the documents slated for destruction when the company purged its files of inconvenient scientific reports. In this report (Exhibit 58-59), the BAT scientists note that "patients with emphysema who have never smoked are rare," and explore the likely reasons behind this fact. Yet in the request for admissions, also shown to the witness (but not available electronically), the company contradicts its own scientists.

The cross-examination 

Mr. Bélanger finished his questions in the early afternoon, and the opportunity moved to Mr. Lehoux to begin the cross-examination. It was the first occasion that Mr. Lehoux has done so, and his style is remarkably different from that of his bench-mate, Simon Potter.

Mr. Lehoux worked methodically through a thick stack of questions (one to a sheet of paper) that were stacked on the document case he had placed on his desk. He asked repeatedly (and in many ways) about the diagnosis of cancers and emphyzema, the importance of tests and the need for individual assessments.

Not surprisingly, this clinician agreed with his suggestions that clinical diagnosis required individual case histories and tests. (It was suggested to me by my colleague, Pierre Croteau,  that Dr. Desjardins was being set up to agree with the defendant companies views that exhaustive medical examinations would be required for all case members.)

By the end of the day, Mr. Lehoux had not yet worked through his stack of papers. Tomorrow, Mr. Grondin and Ms. Coté will follow him with their questions.

Justice Riordan opens the door to new documents

During the break week, Justice Riordan released his ruling on the "2870" documents that had been argued a few weeks earlier. These were, with one exception, documents that had been pulled from the Legacy web-site of tobacco industry records.

Justice Riordan agreed to accept more than 80% of those documents as evidence in this trial (he accepted 30 and rejected 6). His ruling suggests that some of those that were rejected can eventually find their way onto the trial record, either because a witness will later be able to vouch for them, or because a different version is on file.

They are important documents. Some specific examples will be here tomorrow!

Tuesday, the cross examination of Dr. Desjardins will continue in the morning. The trial may not sit in the afternoon. On Wednesday and Thursday, the pharmacologist, Alain Castonguay, will testify.