Monday, 11 February 2013

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: 

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.