Wednesday, 6 February 2013

Day 108: A very short day

When lung specialist Dr. Alain Desjardins returned today for his second day of testimony at the Montreal tobacco trials it was not clear how long the defendant tobacco companies would need to complete their cross examination of this first medical expert witness.

Everyone was there early, as starting time had been adjusted ahead by a half hour to accommodate all questions to this witness before lunch time (an unspecified scheduling conflict required the afternoon session to be cancelled). But as it turned out, the entire hearing took less than half an hour. The court adjourned this morning at 9:30, the time it usually starts.

Mr. Lehoux (for Rothmans, Benson and Hedges) took about 5 minutes to complete his cross-examination of Dr. Desjardins. He asked the witness to confirm that individualized pathology reports and assessments were required to diagnose lung cancer, and were also required to distinguish primary lung cancers from secondary cancers. He then asked the physician to confirm that throughout his professional life, physicians had been trained to counsel patients against tobacco use and that he had personally done so. (Dr. Desjardins volunteered that it was not enough to counsel against tobacco use, and that he also offered medical assistance to smokers to help their quitting efforts).

The lawyers representing BAT/Imperial Tobacco (Suzanne Coté) and JTI-Macdonald (Francois Grondin) had no questions at this point. The big hand had barely reached 12, and it looked like the day was over. There was sheepish laughter in the room, at the early start for a day that was so brief. (Or perhaps the sheepishness was because another science session had been cut short?)

But it was not quite over -- plaintiff lawyer, Michel Bélanger gave Dr. Desjardins the opportunity to rebut the suggestion made by Mr. Lehoux yesterday that the global approach to COPD management (Exhibit 30010) invalidated his explanation of the progressive severity and disabilities associated with COPD.

Justice Riordan wanted further claraification on the distinctions among COPD diseases, and asked whether those who had asthma would ever be considered to have COPD, since the VENN diagram presented yesterday showed they needed to have other conditions present before COPD was diagnosed. Dr. Desjardins did not give him the simple yes/no answer he was seeking, and there were follow up questions as the two sides tried to nuance the reply in their favour.

And then the day was over.

Powerful new evidence

Justice Riordan's decision last week to permit 30-plus documents from the Legacy archive as evidence in the trial has filled in some of the gaps where records were missing in the files of the Canadian companies, or where the events happened outside of Canada.

In making his ruling on the use of section of Quebec's Civil Code that allowed for such evidence (article 2870), he made clear that there were limits to the "probative value" of some of these documents. "While the production of a document under article 2870 can establish the truth of its contents, that does not apply to portions containing hearsay and opinion," he wrote.

His ruling also makes clear that in order to rule on the documents proposed (including the handful he rejected), he had to read and assess their content.- Maybe the companies would have been better off plugging their nose as these documents were proposed, instead of ensuring that he gave them a thorough review??

Some highlights from the new crop of 2870 document:

What it took to get Hans Selye to provide public support to the industry  

Document syiu88d00: 1966 memo regarding a visit of lawyers with Dr. Hans Selye in Montreal, sounding him out as a potential scientific ally.

Document sour87e00: March 10 1969 letter from Alexander Holtzman, Assistant General Counsel to Philip Morris Inc. in New York noting that Hans Selye had refused to testify on behalf of the industry at the Canadian parliamentary hearings because the industry had not, in the end, funded his work.

Document wnl28e00:  March 26 1969 letter from Leo Laporte, Vice President of Research and Development of ITL, to Dr. Hans Selye saying that his research will be funded

Document vox82a99: 1970 report on research underway by Hans Selye.

How the companies managed their opposition to the Isabelle Committee

Document riq40a99: 1969 memo from BAT's senior exec GC Hargrove describing how the industry coordinated its work to reduce the impact of the Isabelle committee (hearings by Canada's House of Commons Standing Committee on Health). There is a heavy presence of U.S. corporate friends - the work was coordianted by "Hill and Knowlton" executives and scientific witnesses were recruited by US lawyers.

Researching how to overcome smokers' health concerns

Document blq36b00: 1969 focus group research carried out by Analytical Research (Canada) Ltd on the reaction of smokers to concerns about health effects.

Document bvs56b00: 1977 memo by BAT's PL Short on "Smoking and health: the effect on marketing" - a strategy is laid out to blunt the health message and reassure smokers so they keep on smoking.

Document kca08a99: 1985 trip report by BAT psychologist RP Ferris regarding his input into the VIKING project

Early denial from U.S. companies

Document lby66b00: The 1953 Frank Statement.

Document pcw34f00: 1954 report produced by the Tobacco Industry Research Committee: "A scientific perspective on the cigarette controversy."

The industry's knowledge of nicotine

Document wfs76b00: A 1962 memo from Charles Ellis outlining research (hidden in Switzerland) on various aspects of nicotine and addiction -- worried about the effect on sales if the benefits of nicotine were obtained from other sources.

Document xjq70g99: A 1972 letter from ITL scientist Robert Wade acknowledging compensation. "When the nicotine content of a cigarette, is. reduced, smokers will alter their smoking patterns to try to obtain their normal nicotine intake, usually by taking more frequent puffs. In doing so they would obtain a tar yield proportionately higher than that which the cigarette was designed to give."

Impact of Free Nicotine
Document jbr73d00
A 1973 report on pH and nicotine impact written by Claude Teague.

Document sqr59d00: 1976 memo written by Claude Teague. "Our Industry is then based upon design, manufacture and sale of attractive dosage forms of nicotine..."

Document hfo34a99: 1982 BAT marketing conference report reviewing the Barclay compensatible cigarette.

Industry knowledge of risks and its research into health effects

1969 mouse-skin
test results
Document xro56b00: 1958 trip report written by BAT or Imperial Tobacco of England executives to the USA and Canada reflecting on the wide acceptance of causality within the industry

Document ltm36b00: 1959 memo from Alan Rodgman, head of "Fundamental Research and Development" at R.J. Reynolds Tobacco Company in North Carolina ("RJRUS").

Document fme50a99: 1962 reflection on the approach of the UK companies to concerns about health.

Document kyv35d00: 1964 research report prepared by Alan Rodgman reviewing several studies and concluding that "the combined evidence from the 29 studies is highly suggestive of significant association."

Document bnf56b00: 1964 memo from Alan Rodgman noting that nitrosamines are  highly carcinogenic and that they might be created in cigarette smoke.

Document iqn66b00: 1967 report on BAT research conference held in Montreal in which the company scientists press for a greater role in company policy, and in products designed to be less harmful.

Document yju40a99: 1968 report on BAT research conference held in Hilton Head, South Carolina in which the company scientists distinguished between "health image" cigarettes which make smokers feel better about smoking and "health oriented" cigarettes which are actually less harmful.

Document sqz74e00: A 1969 memo from H. Wakeham to C. Goldsmith in  showing results of mouse-skin painting tests (see picture).

Document wou74e00: 1969 document containing memos to and from H. Wakeham noting the harmful effects of smoking in pregnancy.

Document yma66b00: BAT research conference material from 1969 - scientists recommend that "the Industry had to recognise the possibility of distinct adverse health reactions to smoke aerosol : (a) Lung Cancer, (b) Emphysema and bronchitis."

Document aro66a99: Report on BAT research conference held in Québec in 1970 - provides the scientific consensus within the BAT companies as well as their mandate.

Document gev36b00: 1972 memo from Sidney Green, BAT's chief of research - pushing for the industry to change its position on smoking and health issues..

Document box36b00: 1976 memo received by Sidney Green. "The product in the 1980s".

Documents related to BAT's 1990 historic review of internal research into the harms of cigarette smoke (Report 2177, prepared by Graham Smith's Document vlx91a99;  Document aum36b00 – Exhibit 1242

On Wednesday and Thursday toxicologist Dr. André Castonguay will testify as an expert witness. Next Monday and Tuesday, Dr. Louis Guertin will testify about cancer of the larynx and upper respiratory tract.