Thursday, 21 February 2013

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.