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
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.
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.
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.
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.