Saturday, 23 March 2013

Day 130: Quantifying Addiction

See note at the end of this post for information on accessing documents

Thursday's cross-examination by Philip Morris/RBH's lawyer of the plaintiff's expert on addiction, Dr. Juan Negrete, was the last day of hearings at the Montreal Trials before a 10-day break. The trial resumes on Tuesday, April 2. 

A ceasefire in the language wars

After Wednesday's ad-hoc experiment in simultaneous interpretation, it appears no-one was happy with the results.

The first item of business this morning was a discussion on how to find a better fix for future days. (Thursday's cross-examination was conducted in French by the fully bilingual Simon Potter.)

Philippe Trudel said that sequential interpretation would be less acceptable, as it would both lengthened the time required and also "break the rhythm." The option of installing a translation booth for a day met strong resistance from Justice Riordan, who said it was a "very, very, very difficult" arrangement.

Instead of finding a suitable way for interpretation, Justice Riordan leaned on the plaintiff's to stop standing on this point of principal. He pointed out that Dr. Negrete was fully capable of testifying in English. "The problem I have is the following," he said as he gave Philippe Trudel the hairy-eyeball. "I'm looking now at Dr. Negrete's CV and all I see is University of Toronto and McGill, everywhere..."

But he did not ask the plaintiffs to make any further concessions on their language rights without offering them a symbolic victory.  "I can tell you one thing: this is the last time that I will tolerate accommodating a lawyer who cannot speak French. I'm saying it with no reproach, but this is Quebec and we have laws here and we have practices here, and I will not tolerate it again. I did it yesterday in extremis, but I won't do it again."

It was no surprise when Mr. Philippe Trudel announced a few hours later that the plaintiffs had decided that the last day of Dr. Negrete's testimony would be in English. (His hands - which seldom stopped moving throughout the day - will likely continue to speak in Spanish!).

Being addicted does not mean you can't quit.

Simon Potter's cross-examination of Dr. Negrete touched on some of the industry's positions on addiction that are beginning to sound familiar in this court. Their core message boils down to 'Smoking may meet the medical definition of addiction, but the definition is itself suspect, and in any event people can quit if they want to.'

Mr. Potter's first round of questions invited Dr. Negrete to confirm many aspects of the industry's position, such as:

* the lack of physical measures for degree of addiction. 
"If I understand, there are tests where, theoretically, measures could be taken but for most cases you take the patient at their word [on the strength of their cravings]?" 
"On their word for it, essentially."

* the ability of smokers to quit without treatment
"Do you agree that in the past few decades there are more and more smokers who have quit?" 
"This is true."
"Do you agree that the majority of these people did not come to your clinic?"
"Yes. If I may add, your honour, it is the same thing with all other forms of drug dependence."

* addiction does not mean you cannot quit

" The fact of being diagnosed as being dependent does not mean that a person cannot quit."
" No."
"In fact, I expect that you do not tell people who present themselves to your clinic: "You are unable to quit."
"No. We hope that they are not."

RBH's counsel also asked Dr. Negrete to confirm that the many Quebecers who have successfully quit smoking would have been considered 'dependent' according to the criteria he established in his report, and also that there are no reliable criteria to predict who can or cannot quit.

Simon Potter asked Dr. Negrete to confirm that in the course of his practice he would make an individual assessment for each patient, and would need to see the patient to do so. (He has asked the same question of every medical practitioner who has testified). The psychiatrists' response was a little more nuanced that some previous witnesses - he pointed out that there were occasions when he would made a medical decision without seeing a patient. When replying to request for an admission to detox, for example, he would only need to know that the person was a constant user -  "I would not need any more information to be able to say - 'yes, I will admit them for treatment.'"

If you don't like the measure - attack the yardstick

In Dr. Negrete's expert report (Exhibit 1470.1, English translation and 1470.2, English translation), the psychiatrist had concluded that "practically any person (95%) who smokes daily" is dependent on nicotine and that "more than one third (1/3) of all the people who have ever smoked tobacco any time in their lives become dependent on it."

Potter's second round of questions seemed aimed at throwing some doubt on the reliability of the studies on which Dr. Negrete had based these conclusions. (Exhibits 1470.5 and 1470.6). He metaphorically held each table of results up to the light for close examination.

Were the ages of the people in the study group representative? Did they not have other co-morbidities like schizophrenia or alcohol use? Institutionalized populations? Residential populations? Were the results comparable with other countries? Why use these results and not those from other studies? Did the ICD categorization not lend lower estimates? 

Dr. Negrete handled the questions as one might expect from someone who has passed several professional exams in his life - he calmly defended his conclusions and the methods on which the studies were based. He frequently corrected suggestions that were contained in Simon Potter's questions.

Over the afternoon, Mr. Potter put on record other estimates of lifetime prevalence for nicotine dependence. (Exhibit 30020, 30021, 30022, 30023, 30024).

Hooked on Nicotine Checklist

In the many decades that are covered by this lawsuit, there were several changes in the medical understanding of, measurement of and treatment of tobacco use and nicotine dependency.

Mr. Potter's questions ended up with one of the more recent medical frameworks for the issues -- the Hooked on Nicotine Checklist (HONC) proposed by Joseph DiFranza. (Exhibit 30027)

DiFranza's approach was used as the basis of a well-circulated study of young people's first use of tobacco. The study included Quebec youngsters, and was co-authored by a local epidemiologist, Jennifer O'loughlin (Exhibit 1471).  It was also reviewed by Justice Riordan when he was called upon to decide whether Dr. DiFranza could be a second expert witness on addiction for the plaintiffs. (He said no.)

Dr. Negrete declined Simon Potter's invitations to distance himself from the HONC approach and expressed no concern about the adoption of a single indicator for dependence in this study compared with the requirement for a greater number of criteria in the DSM-IV or ICD approaches. "If the person feels cravings, a compulsive need to smoke, if the person is upset when trying to quit smoking, if the person trying to quit has difficulty doing so, then I think that is a reflection of the process the person finds himself in."

Rothmans, Benson and Hedges draws from its stable of funded researchers.

Simon Potter may have been assisted today by RBH's own expert witness in addiction, Kieran O'Connor, whom I believe I saw in the court his week. Mr. O'Connor now works at the Institute universitaire en santé mentale de Montréal. Although his expert report (drafted, but not yet accepted as evidence) mentions that he completed his studies under Hans Eysenck, it does not mention that his early research was funded by Philip Morris and other U.S. firms.

Who's got the road-map for the rest of this trial?

The regular one-week-a-month suspension in the hearings has been stretched slightly to accommodate the Easter Holidays - but there may be an even longer break come mid-April. 

The plaintiffs will wrap up their case on  April 2, 3 and 4th.  After that, there is much that is cloaked in uncertainty. It appears likely the court will be dark for the three middle weeks of April, resuming only on April 29th for the two-day hearing on the defendants' motion to dismiss the case. (The details of their argument will not be known until the April 18th deadline for it to be communicated with the plaintiffs and the judge).

The one thing that might bring everyone back to courtroom mid-April is the desire of Justice Riordan to do some "gestion" (management) on the the industry's witness list. An updated and more annotated version of the "preliminary, partial" list provided in early January must be provided to Justice Riordan by April 9th. He has promised to help them whittle it down.

Justice Riordan has given anything but comfort to the companies with respect to their upcoming requests to knock-out some or all of the charges against them and has several times indicated his resistance to this delaying the trial in any substantive way. On Thursday he underlined this message by instructing the companies' counsel that "there is a chance that we will be starting the defendants' proof on May 6th."

The trial is suspended during a scheduled break until April 2, when it will resume for the last week in the "plaintiff's proof". During that week, two witnesses are scheduled. The cross-examination of Dr. Negrete will be completed on Wednesday, April 3 and Mr. Jacques LaRivière will testify on Thursday, April 4.

To access trial documents linked to this site:

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

Wednesday, 20 March 2013

Day 129: Dispatches from a new front line in the Language Wars

It would not be quite accurate to say that a language war broke out this morning in the penthouse courtroom of Montreal's "Palais de Justice" where the Montreal tobacco trials have been in session for over a year.

More true perhaps to say that the francophone plaintiffs in the case forcibly renegotiated the terms of linguistic surrender that have been gradually imposed on them in this trial by a British tobacco multinational and its Ontario-based lawyers.

The catalyst

Sonia Bjorkquist
It began today at 9:30, when Suzanne Côté (the senior Quebec-based counsel for Imperial Tobacco) rose to introduce yet another partner from Osler's Toronto office. "I told you that there was one more team member," she told Justice Riordan, before introducing Sonia Bjorkquist.

Why Imperial Tobacco's legal team needed yet another substitute on their benches was not explained, nor was any reason given why one of the 60 lawyers working at Osler's Montreal office were not available to represent the company during today's testimony by expert witness on addiction, Dr. Juan Negrete.

What was communicated was that Ms. Bjorkquist had been assigned to manage today's testimony and that she did not speak French.

The fuel

As I have previously reflected (see post from September 4, 20112) this important trial has been conducted predominantly in English. This has resulted in some handicapping to the plaintiff lawyers, most of whom have French as a mother tongue, and who are consequently required to work in their second language.

Several factors may have led to the questionable circumstance where the claims of Quebec smokers are being discussed and decided in a language most of them do not understand.

One reason is that the former company employees who were called to testify mostly came from the senior ranks, which meant that they were more likely than not to be English-speaking. (Welcome to Quebec).

Even the francophone employees who testified mostly elected to testify in English. This is their right - but the suspicion has remained that this right was exercised not out of sincere desire, but after being persuaded during lengthy pre-trial preparations with the companies' lawyers.

Other contributing factors are less unique to this case, such as the inherent gravitational pull towards a common language. All the lawyers speak English, but not all the lawyers speak French. Justice Riordan, despite his impressive eloquence in both languages, tends to default to his mother-tongue, English.

Most of the francophone lawyers on the plaintiff side have not made a fuss about the situation, although it is the type of thing that would draw stern comment in other settings. Only Maurice Regnier, the counsel for the federal government while it was in this case, stuck to his linguistic guns.

The match

The last expert witness to appear for the plaintiffs is Dr. Juan C. Negrete, a psychiatrist who trained in Argentina, taught at McGill and practiced in Montreal for several decades. This is a man who has worked in four languages (Spanish, English, French and Portuguese).

Although Dr. Negrete wrote his expert report in French, his name had been included in a list of English-speaking witnesses provided early in the trial. He had also been deposed (interviewed) in English some years back.

On this basis of these events, Imperial's counsel felt that Mr. Negrete was legally obliged to testify in English, despite the signals this morning that he (or his lawyers!) desired to do so in French.  Ms. Côté asked Justice Riordan to insist that Dr. Negrete testify in English. She offered to show the "authorities" for such a ruling.

The blood pressure on the plaintiff's side of the room began to rise.

Their view was that the witness had a Charter right to testify in the language of his choice, and that his choice of language had been communicated to the defendants well before this morning.

Why had the time used to assemble legal authorities not been spent in communicating Imperial Tobacco's concerns? Bruce Johnston wanted to know. He was almost shouting as he expressed his teams' outrage at the general situation. "This is scandalous -- to force francophone witnesses to speak in English and our francophone counsel to cross examine in their second language!"

Justice Riordan called a pause and left the courtroom.

His departure gave an opportunity for the lawyers to share their heart-felt views of each other in ways not allowed when the court is in session.  It was the first time I have observed such an exchange. There was yelling. There were threats. It wasn't pretty.

The reaction

Some time elapsed before Justice Riordan returned to settle the matter - but even then he did not immediately reveal what he had decided to do.

Instead he canvassed the parties for their position.

* Philippe Trudel referred to the fine print of the legal contracts, pointing out that it confirmed that French was the official language and that it was the right of witnesses to speak in either French or English.

* Ms. Côté was invited by the judge to provide "her best case." (She cited from a Court of Appeal ruling that I was not fast enough to identify.)

* Simon Potter (representing Philip Morris' Canadian operation) said he "didn't take a position" but offered a view which supported his Imperial Tobacco colleagues. He said his expectation had been that the testimony would be in English.

* The remaining party in the case, JTI-Macdonald, remained silent. "You are smart enough to stay out of this one, Mr. Pratte," observed the judge.

For a man caught in a no-man's land in a language war, Justice Riordan looked surprisingly at ease. He leaned back in his chair, smiled gently, and invited the plaintiffs to suggest a solution. He may have hoped they would blink, but this time they didn't suck it up. Philippe Trudel proposed that Imperial Tobacco find an interpreter, and the session be suspended until after lunch.

With no option but to make a ruling, Justice Riordan then leaned forward and made it clear that there was a limit to the accommodation that could be made to lawyers visiting from unilingual jurisdictions. "This is a situation that is singular - that a witness who wishes to testify in French is being asked not to."

He threw the responsibility back at Imperial Tobacco's law team. "This is a situation that is not supposed to happen." He added that the justice system "requires lawyers to be comfortable in French. .. one of the rules of Quebec is that an advocate has to be able to get along in French." He pointed out that there were tests of French language proficiency for lawyers graduating from bar school. (As well as other bar requirements )

The afterburn

The rest of the day unfolded with everyone locked into their positions with respect to language. 

Suzanne Côté began to provide informal translation to Ms. Bjorkquist, a task managed by a professional interpreter in the afternoon. Dr. Negrete testified in French. Justice Riordan switched back and forth between languages, as did the video screen showing documents. The other teams - Simon Potter and Guy Pratte -  were even faster on their feet to make objections lest their colleague be caught in a translation-delay. The plaintiffs resisted the temptation or pressure to revert to English.

(The companies have engaged several experts to counter Dr. Negrete's testimony, some of whom were sitting in the courtroom. No one was providing translation for them.)

The distraction of a translator combined with the residual adrenalin from the morning's altercation may be why the afternoon was more tense and chaotic than usual. 

One of the civilian casualties may have been Dr. Negrete's testimony. A few times during the day he needed reminding that his contribution was limited to providing direct answers to the questions put to him - no matter how provocative the question or the objections put to it. Surrounded by such hostility, it is very hard to remain neutral. 

Dr. Negrete's expert report

Juan C. Negrete
Juan C. Negrete retired from his post of professor of psychiatry at the Faculty of Medicine at McGill University in 2009. This was 42 years after he qualified in psychiatry at the same institution.

In the intervening years, he worked in addictions in a number of cities, and a number of positions, including for the World Health Organisation, CAMH and other important centres in addiction medicine. 

His resumé (Exhibit 1470.3) suggests a rich professional life in clinical practice, research and medical teaching. He was the founder of McGill's addiction unit, where he estimates he treated about 10,000 patients including hundreds of smokers.

His 27 page expert report (Exhibit 1470.1 - English translation also available) provides an layman's explanation of nicotine addiction and the factors that contribute to becoming addicted to smoking. 

His report reviews the scientific steps taken in accepting tobacco addiction, including changes to the mental health categories for disease (DSM) in 1964 and 1993, and later years. (The French language, in which his report is written, uses the term dependence for addiction, which is closer to the more current medical term of "substance dependence.")

In his report, he concludes: "Almost all daily smokers (95%) are dependent on tobacco to different degrees, but the problem is most severe among those who light a cigarette within 30 minutes of waking." During his testimony, he further explained how he arrived at that figure, and how bracketing it with lower confidence estimates would still result in 92% of daily smokers passing a clinical definition of dependency.

Tobacco, he concludes, recruits more addicts than do other substances. Using Canadian statistics, he finds that "more than one-third of people who have smoked cigarettes at any time in their life become dependent," and that this figure is twice as high as for other substances, like alcohol, cocaine and four times as high as for cannabis.

Commenting on the proof

Over energetic objections by the industry lawyers, Philippe Trudel offered Dr. Negrete the opportunity to reflect on some key quotes from exhibits that have been put on the trial record over the past year. 

This exercise not only allowed Mr. Trudel to remind the judge of some of the "hotter" evidence against the companies, but also resulted in Dr. Negrete's validation of some conclusions about these documents.

These documents included:
* Imperial Tobacco's study on youth, Project Plus/Minus, (Exhibit 305) which found that young people who started smoking felt they would not become addicted, but that they soon find "addiction does take place," and that their "desire to quit" is not fulfilled. Dr. Negrete pointed to a recent study of Quebec students that showed how quickly a starting smoker lost autonomy over cigarettes. (Exhibit 1471).

* Dr. Negrete was asked to comment on Philip Morris's 1997 position that nicotine had only "mild pharmacological effects" (Exhibit 981 E). The witness said he did not consider "mild" any drug which was as capable of driving a need for constant and prolonged use. 

*He was shown the same companies 1990 guidelines to staff on how to avoid the use of the word "addiction" in favour of habituation. (Exhibit 846) Dr. Negrete affirmed that within the medical community, the concept of habituation had not existed for some decades before those guidelines had been drafted (since 1964). 

*Other "hot docs" shown to Dr. Negrete included one of the famously destroyed documents -- a 1984 BAT study on nicotine receptors in rats' brains (Exhibit 58-7), and a 1972 acknowledgement by RJR that "The tobacco product is, in essence, a vehicle for the delivery of nicotine." (Exhibit 1407) 

The addiction psychiatrist was asked about some positions on tobacco use that have been adopted by the companies or their expert witnesses. He said that the claim that smoking has a benefit to smokers is a result of allostasis, that led to smokers seeming to function better when smoking. "The brain functions 'better'when an dependent person has that substance in their brain." 

Willpower was not the factor that determined successful quitting, he testified. "Motivation does not predict relapse. It is related to the severity of dependence."  He explained that the relapse rate for quitting smoking was about the same as for alcohol and cocaine in the short term, but that in the longer term, more smokers relapsed than did people who were dependent on these other substances.

At the end of the day, Philippe Trudel had finished his list of questions for this witness. Tomorrow, the witness will be cross-examined by Simon Potter. Imperial Tobacco is expected to take a break of a few days to allow for translation of his testimony before cross-examining this witness.

Dr. Negrete returns tomorrow.

Tuesday, 19 March 2013

Day 128: Methods and methodology

In the competitive theatre of the Montreal tobacco trial, there are occasionally dramatic shifts between scenes. Today was one of those days. Yesterday's squabbling about old grievances gave way to today's high-toned and civil exchange about epidemiological methods.

The curtain on today's episode did not came up until the afternoon, as the morning's hearing had been sacrificed to an unspecified scheduling conflict. When it did open, the courtroom setting had been tweaked for the re-appearance of Montreal's noted epidemiologist, Jack Siemiatycki.

The counsel for Canada's smallest multinational tobacco company, JTI-Macdonald, had moved to the defence's front seat, which is on Justice Riodran's left hand side and beside the witness. Sitting beside Guy Pratte at the front desk was Kevin LaRoche, who seems responsible for preparing for scientific witnesses for JTI.

With Mssrs Pratte and LaRoche in charge of the day, I expected a smooth ride. These players don't go in for the theatrics, pissing matches and games of silly bugger that some of their colleagues excel at. But even against my relatively high expectations for the day, I was pleasantly surprised.

It was these two men who would lead the remaining cross-examination of Mr. Siemiatycki, a witness whose report is very damaging for the companies. The report (Exhibit 1426.1) concludes that in recent years the number of Quebecers made sick as a result of smoking these companies' brands is four times the population of Outremont:

"From 1995 to 2006, there were 110,282 Quebec residents who suffered from one of the four diseases and who would have had probability of causation greater than 50% that the cause was cigarette smoking."

Epidemiology 401

In trying to challenge the methodology used by Mr. Siemiatycki, this duo had gone to obvious efforts to bone-up on the content, to refine the issues and to present their challenges in ways understandable to judges (and bloggers!) who have more limited expertise in quantitative methods.

They did a good job!

This difficult challenge may not have left room for any distractions that come with the bag of tricks that has been used when questioning other plaintiff's expert witnesses. Jack Siemiatycki was spared the mockery and challenges to his judgement and scholarship that were experienced by Robert Proctor, Richard Pollay and André Castonguay.

Instead, most of the day was spent with Guy Pratte leading the witness through a series of finely sequenced questions aimed at getting the epidemiologist to acknowledge that the methodological choices he had made would have affected the reliability of his results.

During the first couple of hours of this effort, I felt like I had accidentally dropped in on an upper-year lecture on statistical methods. Mr. Pratte was at the head of the class, explaining concepts underlying the measurement of differences between studies or the attribution of those differences.  Q value! I squared! 

The pedagogical nature of the exercise was emphasized by the introduction of extracts from text-books, and by the illustrations offered when these concepts were applied to Mr. Siemiatycki's calculations. (Exhibits 40042.1, .... 40042.5)

Mr. Siemiatycki responded very politely throughout this process. He either agreed with Mr. Pratte, or did not let his disagreement get in the way of the groundwork that the lawyer was making. He offered the occasional conceptual reservation, but was quick to express his willingness "for the sake of the argument to along with the idea." 

In less time than a standard university lecture period,  Mr. Pratte had finished the ground work and began to present his central challenge to Mr. Siemiatycki's conclusions: "Would you agree that the extent of heterogeneity would impact the reliability of your summary data [about lung cancer]?"  

Mr. Siemiatycki quite agreeably replied. "As a generic statement, yes," he said, then added "But in particular circumstances it might be moot." 

It was not until some time later (and after a brief flurry of excitement when Mr. Siemiatycki disclosed a calculation error) that the witness began to politely pour cold water on Mr. Pratte's argument.

"There are many reasons why different studies may vary from one to another," he explained. "The most important reasons are probably methodological." 

The issues raised did not affect his overall conclusions, he said. "I became convinced that no matter what level of heterogeneity there might be among the studies, the range of values from all of the studies was so far off the chart for what we usually see in terms of the magnitude of relative risk and dose response relationships, that it would have little impact on the final results."

He outlined in numerical terms the impact that would be felt and then provided a more memorable way to understand the issues. "To answer a question about whether the Himalayas are higher than the Alps, you don’t need the most specific measure possible."

He said that the difference would be at the "margins" of the smoking population, with people who have only a handful of pack-years smoking experience. "All of these arguments ... are trivial because nobody smokes that little."

Mr. Pratte tried to introduce other methodological concerns -- like the failure to include "prediction intervals," or possible differences in the types of cigarettes smoked or the population studied. But these issues were on Mr. Siemiatycki's home turf, and easily rebuffed. With confidence and eloquence, Mr. Siemiatycki defended the appropriateness of drawing inferences in the way he had done.

In the face of such well articulated knowledge, Mr. Pratte was at a disadvantage. He temporarily relied on some lawyerly questions -- "you can't exclude...", "you didn't investigate..." but soon announced that he had no more questions to ask.

There were two other quick rounds of questions from Simon Potter (PMI/Rothmans, Benson and Hedges) and Allan Coleman (Imperial Tobacco), both focused on assumptions of linearity in the models.

At the end of the day, as the plaintiffs' were able to respond to the cross-examination, there were already clear signals from Justice Riordan that he did not need to or want to hear any more. Nonetheless, André Lespérance wanted his witness to clarify some issues.

He focused on the core of the methodological concerns. What if Mr. Siemiatycki approach miscalculated how much someone had to smoke before tobacco use was the likely cause of disease?  What if there were a different "critical amount."?

Mr. Lespérance put it this way: "How critical is the critical amount to the bottom line?"

"Not very critical," replied Mr. Siemiatycki. "Estimates can be made with different models and different assumptions, but once we are in the range of pack years from 2 to 12, we will end up with the same number."  He explained that the vast number of lung cancers were found among people who smoked for 20 or more pack-years. "The average pack years for lung cancer cases is 50."

Nor were other causes of cancer - including asbestos and alcohol - likely to greatly affect his conclusions. "It is like Mount Everest compared to Mount Royal - which one can obscure the other one." 

In the months to come, the epidemiologists and statisticians hired by the companies will present their reports, and Mr. Siemiatycki is expected to again offer his insights at that time. If today is something to go by, it is a day to look forward to.

Tomorrow and Thursday the trial will hear from the plaintiffs last expert witness, Dr. Juan Negrete. He will testify about addiction.

Monday, 18 March 2013

Day 127: Jeffrey Wigand's Credibility on Trial

For information on accessing documents, see note at the end of this post.

It was more by chance than by design that two scientists who once held senior positions at U.S. tobacco operations testified sequentially at the Montreal tobacco trials. William Farone, who testified last week, had originally been slated for a different role in the trial, and was a late addition to the witness list. Jeffrey Wigand, who testified today, was returning for a cross-examination that had been postponed by three months.

The close scheduling of these two witnesses highlighted the similarities in their stories (both detailed how the scientific work at the companies had been subjugated in the 1980s to the lawyers' concerns about litigation), but also drew attention to the differences in the management of these stories at this trial by the two companies involved. Philip Morris seems to have taken a "ride it out" approach to William Farone, while BAT/B&W/Imperial Tobacco was determined to "shoot the messenger."

The story so far (or at least the Montreal part of it)

Mr. Wigand first appearance at this trial, some three months ago (December 10 and 11), soon snowballed into a messy legal fight over the company's right to subpoena Mr. Wigand's financial records (an attempt they making in both Montreal and in Michigan, where he resides.)

That skirmish resolved in Justice Riordan suspending Mr. Wigand's testimony until he returned with many of the financial records they were demanding. These included the corporate and financial records of his charity, Smoke-Free Kids, as well as details of payments he had received from that charity or from any law firms involved in suing tobacco companies.

The fun begins

There was no question that today's session was another grudge match between British America Tobacco and the former head of science for its US operations. Today was only one in a series of conflicts between these parties in the 20 years since Mr. Wigand was forced from the company, only to gain fame on the outside as the "Insider."

But with their demand for personal financial records, lawyers for BAT's Canadian operation signalled that "this time, it's personal." Not surprisingly then, you could cut the tension with a knife when Mr. Wigand returned to the witness stand, faced Justice Riordan, and affirmed that he would "tell the truth, the whole truth and nothing but the truth." 

But there was to be more legal wrangling before his testimony resumed. Within moments, Mr. Wigand was sent from the room for the first of many such occasions to allow the lawyers to argue out of his ear-shot. As he walked to the door, still using a cane, Mr. Wigand whispered to some of his supporters sitting in the public seating area "The fun begins..."

Justice Riordan, had a different take on the day. "Nothing is easy in this file," he observed.

The cross-examination

There was an interlude before the face-off between BAT/Imperial's Deborah Glendinning and Jeffrey Wigand, while Bruce Johnston completed the plaintiff's questions. (See below). But by mid-morning, the delayed cross-examination had begun.

From the outset, it was clear Ms. Glendinning was pumped for the occasion. With her shoulders drawn back, her chin jutting forward and her voice clipped, she looked and sounded ready for battle. She launched into a series of fast and angry questions to Mr. Wigand about the financial material he had provided and his contact with the plaintiffs.

She made it clear she thought that they were up to no good. "Did you discuss the questions that the plaintiffs were going to ask you today?" "Did you discuss the financial documents you were requested to produce?" "Did you sit in their office?" "Did they have questions for you?" "Who prepared these documents for you" "Are you sure?"

Jeffrey Wigand's tone was also hostile, and he made little obvious effort to provide clear answers to her questions. To make matters worse, he was often hard to understand (he talks quickly, and frequently omits both consonants and punctuation).

Justice Riordan intervened frequently, gently directing Mr. Wigand to not wander off track. Ms. Glendinning was less gently cautioned against arguing with the witness. Mr. Johnston's repeated objections to repeated questions were repeatedly sustained.  

None of these interventions had a lasting effect. At one moment as the judge held his head in his hands, his expression reminded me of my mother when she was surrounded by quarreling teenagers. "Lets just back off a minute and try to get this over in as pleasant a manner as possible," he pleaded in vain.

The money. 

Only part of the two-hour cross examination was focused on the financial information the witness had been required to produce. Because it is confidential (and filed under seal), those of us in the audience were not privy to the information in it. Because most of her questions reflected her doubt that the information was complete, it sounded like there was some lunch-bag let-down for a team hoping for something that would make him look like a witness-for-hire. My guess is that Jeffrey Wigand is far from a rich man.

Nonetheless, she did get some answers to her questions. This morning we learned that Mr. Wigand has a fee schedule which he provides to lawyers, but that he charges only for consultation on document research and not in connection with his testimony as a fact witness. He said today he had testified at about a dozen trials.

Over more than a decade, his main source of income has been in connection with his charity, Smoke-Free Kids. Since 2010 he has not drawn any salary from that organization and instead, at 70 years of age, has relied on social security, the US public pension.

Ms Glendinning pressed Mr. Wigand to explain how working with lawyers met the test of the educational  mandate of Smoke-Free Kids. He answered that the organizational mandate also included preventing kids from smoking, and that litigation was one way of achieving this goal.

She implied that Smoke-Free Kids had been set up by American plaintiffs' lawyers, pointing to the charity's receipt of $2 million from law firms, and the presence of one of the more notable/notorious pioneers of tobacco litigation, Dickie Scruggs, on the board of directors. (She did not miss the opportunity to point out that Mr. Scruggs "remained as a director until he was jailed for bribing a judge." )

The former employer. 

Running out of the "new dirt" that had been subpoenaed, Ms. Glendinning turned to the "old dirt" that was gathered by Brown and Williamson and which has gathered dust on the Legacy Site for over a decade.

These included allegations that:

* Mr. Wigand did not resign from the position he had before joining Brown and Williamson (at Biosonics)  but had been "forced to resign." (Curiously, not one, but two letters of resignation from that position were tabled in the court today - Exhibit 20057.1 and Exhibit 1469).

* His previous employer, Jack Paller, held him in low regard (Exhibit 20057). (Mr. Johnston was later able to file a Wall Street Journal story that chronicled the attempts of Brown and Williamson to smear Mr. Wigand and suggested that Mr. Paller's actions were part of this plan - Exhibit 1468)

Another judge's opinion

Ms. Glendinning's final challenge to Mr. Wigand's credibility still has me puzzled, as it seemed to have resulted in Justice Riordan being provided with important validation of Mr. Wigand's story.

She referred to Gladys Kessler's exhaustive final ruling in the racketeering charge laid by the U.S. Department of Justice, drawing attention to Judge Kessler's assessment of Mr. Wigand, and his testimony at that trial. I think this is the first time that any of Judge Kessler's conclusions have been discussed in this court. When Ms. Glendinning started to cite the ruling, Justice Riordan volunteered "I had been previously avoiding reading that ."

Judge Kessler had concluded that "Wigand’s [testimony about the Vancouver minutes] was unreliable, contradictory, and impeached on a number of points."  

If he had ever been embarrassed by those comments, Jeffrey Wigand did not let it show. "That was her finding," he shot back. "I stand by my testimony."  

The use of this document not only reminded Justice Riordan that he was following down a path paved by others, but it gave Bruce Johnston licence to pick up on other conclusions of Judge Kessler with respect to Mr. Wigand's testimony. He read into the record many extracts from the ruling, ones where Judge Kessler had not only accepted Mr. Wigand's version of events, but was highly critical of the lawyers' control of science and the destruction of documents.

The suspense is over  

Before the cross-examination had begun, another ruling in favour of the plaintiffs was announced by Justice Riordan. Three contested documents that are related to document destruction will now be admitted to this file. The judge did not explain his decision, but said that written reasons would soon be provided.

The three documents were discussed early in the trial, but were only argued before Justice Riordan last Monday. They are Exhibit 1467.1, 1467.2 and 1467.3.

The first dates from 1985, when Brown and Williamson's counsel, J. Kendrick Wells, advises that scientific records be purged of "deadwood" documents (including the Janus series on health effects).

The second, written four years later by the same Mr. Wells, discusses the need to "avoid the production of scientific witnesses and documents" -- i.e. keep science out of courts. In it, he cites concerns about the litigation underway in Montreal at that time (a constitutional challenge by the industry to Canada's first advertising ban, the Tobacco Products Control Act), and the possibility that documents from one country will enter into the court records in other jurisdictions. "The Canadian case is in an especially disadvantageous posture for document production."

The third document is drafted by a BAT legal advisor in early 1990. In it Nick Cannar outlines the procedures adopted to reduce the scientific material sent to its troublesome Canadian scientists, and the role of lawyers in vetting the information they received.

Bruce Johnston's questions on these documents had been suspended in December, pending this ruling. Today Mr. Wigand was available to comment, and Mr. Johnston asked him about related events at Brown and Williamson, where Mr. Wigand worked from 1989 to 1993.

Mr. Wigand said today that in the fall of 1989 the company became increasingly concerned about the "inconsistency" between the knowledge and writing of the scientists and "what was required to be said outside the company." As a result, he and other scientists were sent to Shook, Hardy and Bacon's office in Kansas City to be given a script on the public position.

He drew a link between these events and the turmoil over discussions at the September 1989 meeting of the scientists in Vancouver and the subsequent meeting among lawyers in New York City in early 1990.

"This document is part of the puzzle. It is the whole issue of what the scientists knew compared with what they said externally."  

"There was considerable degree of concern, particularly among the senior management and the legal team at Brown and Williamson of anything that was done at Imperial Tobacco Canada or any discovery or release of documents through litigation in Canada."  

He said that tests of the biological activity of smoke from Brown and Williamson cigarettes had been conducted in Montreal and "the biological activity of these brands was higher than other brands. This caused considerable alarm in the legal sections. Wells went to Canada and tried to sequester the documents."

Bill Neville: 1936-2013

As recently as last Friday, the work of Bill Neville as president of the Canadian Tobacco Manufacturers Association was discussed in this court. His name was among those of a handful of other witnesses who have authored or received documents that the plaintiffs wish to put on the court record.

Bill Neville cannot be re-called to this trial. He died last Wednesday while wintering in the southern USA.

Tomorrow is the return appearance of another witness. Jack Siemiatycki will testify on the effect of heterogeneity on his epidemiological conclusions. Stay tuned!

To access trial documents linked to this site:

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.

Thursday, 14 March 2013

Day 126: Are we nearly there yet?

At 9:30 this morning, William Farone was sitting calmly as the bailiff gave his idiomatically Montreal instruction to "please close your cell phones" which heralds the arrival of Justice Riordan and the opening of proceedings in the Montreal Tobacco trials.

A half hour later, the former Philip Morris scientist took his leave. The cross-examination had evaporated overnight.

The lawyer who represents Philip Morris' interests in this trial (through their Canadian subsidiary, Rothmans, Benson and Hedges) is Simon Potter. Mr. Farone had correctly predicted yesterday that Simon Potter would keep the cross-examination ball in play until the end of the day yesterday in order to allow the lawyers to meet overnight and think up some "hard" questions.

What he had not predicted was that today Mr. Potter would have no such questions.

Instead it was Ms. Nancy Roberts, who represents the interests of Philip Morris' global rival, British American Tobacco, who stood to ask a few short questions about reconstituted tobacco. (The trial has already learned that for a long period, Imperial Tobacco manufactured this product under contract to the other companies. By the way it has been described, reconstituted tobacco bears the same relationship to tobacco leaves as bologna does to meat).

Her purpose was to get Mr. Farone to acknowledge that he had no personal knowledge of the way in which Imperial Tobacco Canada manufactured its reconstituted tobacco leaf. He agreed he had none, and the cross-examination was over.

Mr. Trudel used his 're-direct' to expose a misleading question put to the witness yesterday by Simon Potter, who had suggested that the U.S. Surgeon General had concluded there was a health benefit from low-tar cigarettes. Yesterday Mr. Potter had asked Mr. Farone: "And you know that the Surgeon General says that the use of filter cigarettes and low-tar cigarettes decrease lung cancer; don't you?". Mr Farone seemed familiar with the 1,000 page report. (Exhibit 601-1979 - large file) "He said that? I think what he said was, if you were going to smoke, you should smoke a lower tar... I don't think he actually said that it reduced it.?"

Whether or not health authorities endorsed low-tar cigarettes is an important issue in this trial. Today, Philippe Trudel, pulled out the report and invited Mr. Farone to clarify that the Surgeon-General had reached no such conclusion. He also pointed to the Surgeon General's concerns about ventilation of cigarettes possibly increasing the risk of disease, and the need for warnings about the issue. Mr. Farone testified that the ventilation was a strategy for the objective of a safer cigarette, and  reaffirmed his view yesterday that some levels of ventilation reduced smokers' exposure to toxins, other levels didn't.

"Did Philip Morris ever warn its customers or clients that smoking lower tar nicotine cigarettes may increase their chances of getting disease?" asked Mr. Trudel.

"They did not make that specific warning," replied Mr. Farone.

Loud and Clear!

Shortly after Mr. Farone left, Simon Potter rose to ask about the remaining time for the plaintiffs to finish their case. "I want to review the bidding" he began and then started to complain about the number of hanging threads that remain on issues that are supposed to be finished this month.

Justice Riordan seemed indifferent to Mr. Potter's concerns, most of which are currently under negotiation with other defendants. (One example is whether the companies would accept an affidavit in lieu of a court appearance of an elderly witness.)  The judge did, however, uses the occasion to lead a card from his own suit -- his pushed again for scheduling of the defense witnesses.

Each time the issue is raised, Justice Riordan expresses his concerns with more force - in both tone and substance. This time, he also added more details to his expectations, and put a time frame around some of them.
* He told the companies to produce a clear list of their proposed witnesses, one that follows the standards used in most trials and which includes both the length of time required and subject matter that will be discussed for each witness. This list must be produced by April 9th.
* He signalled that he will try to reduce the number of witnesses, especially from the government. "I am going to work with you to see if we can shorten it to some extent." 
* He wants clarity on how many members from each class of victims (the Letourneau addiction class or the Blais lung disease class) will be questioned.

He also clarified that he would allow a few loose ends on the plaintiffs case. The plaintiffs will be able to question certain witnesses on their knowledge of documents when those witnesses are called to testify by the tobacco companies, even if it is some time after their "proof" has theoretically closed and the questions aren't technically a cross-examination. The documents in question (most of which are on the trial record as "2M" records) will be known in advance. Some flexibility will also be allowed on a few other remaining issues (including a document whose status is now under appeal to the Supreme Court).

Even-handedly, he had some tough words for the plaintiffs too, and cautioned them against adding further to the list of new evidence than necessary.

Despite the tough talk, things seem far from settled. The first week of April is now semi-scheduled with the last witnesses and arguments on the plaintiffs case (7 more sitting days!). Where we go from there is still a mystery.

Who is in? Who is out?

Justice Riordan has also been wrapping his head around some of the details that may become important later in the trial -- especially if he finds in favour of the plaintiffs!

He wants more clarity on who is included in each of the classes, and furthered discussion today on the issues he wants better defined. At the time the actions were certified, the Blais case included both throat and larynx cancers even though -  as the judge pointed out today - larynx cancer is usually counted as a throat cancer.

Another of his concerns was the application of epidemiologist Jack Siemiatycki's conclusion that the legally attributable risk was 4 or 5 pack-years of smoking (depending on the disease in question). This is a higher amount than the threshold defined in the certification ruling, which was for those who smoked at least 15 cigarettes a day for 5 years, which is equal to 3.75 pack years.

A third clarification he requested was the treatment of people who became addicted to smoking when smoking cigarettes manufactured by companies that are not on trial. He cited, as an example, someone who was already a smoker when they immigrated to Canada and settled in Quebec. "We need to exclude people who smoked other cigarettes."

Back to "2870"

By late morning, the trial had returned to a review of documents that are already on the trial record, but which are a lesser standard of evidence - the "2M" documents.

Last week, when the current review started, there were 300 documents to review and the process was painful for all. Today was no picnic, but it was a much smoother and less tension-filled process. I would attribute most of the difference to a change in style on behalf of the Imperial Tobacco lawyer in charge of this process, Nancy Roberts. (The documents from the other companies had all been previously reviewed).

While continuing to put her clients' concerns on the record, she made less of a performance of it, and allowed the process to run about as quickly as possible. As a result, the remaining documents on this list were decided on. At the end of the day, Justice Riordan thanked her.

Again, almost all of the documents were approved for admission as evidence under the 2870 rule. The plaintiffs succeeded in selecting documents that were linked to Justice Riordan's earlier rulings.

Because documents from dead people are allowed, the plaintiffs were able to introduce many letters, speeches and reports authored by or sent to former presidents of Imperial Tobacco - John Keith, Paul Paré, Ed Wood - and senior officials from British American Tobacco. Much of this materials dates from the 60s and 70s, when the company was trying to hold back the tide of scientific evidence about their products.

Correspondence from senior BAT officials - like Sir Patrick Sheehy - were also entered into evidence in this way. Against objections that "This witness is not dead - he simply does not want to come!" Justice Riordan took the view that it was not reasonable to go through the legal process to obtain testimony from foreign witnesses.

By the end of the day, the few dozen documents that remained on this list had been dealt with. It's powerful reading, and must be even more powerful evidence.

Next week will begin with the return of two witnesses -- Jeffrey Wigand and Ed Ricard. On Tuesday, Jack Siemiatycki will return. On Wednesday and Thursday, the plaintiff's expert witness on addiction, Dr. Juan Negrete, will appear.

Wednesday, 13 March 2013

Day 125: William Anthony Farone

For information on accessing documents, see note at the end of this post.

William Anthony Farone, Ph.D. is a former Philip Morris Director of Applied Research, and is considered in lawsuits to be an anti-tobacco expert. Dr. Farone was hired at Philip Morris to make safer products and to find business alternatives outside the tobacco industry for Philip Morris. 
William Farone was originally scheduled to be an expert witness in the Montreal Tobacco trials, testifying on behalf of the federal government. Soon after the government's release from the case, the plaintiffs announced that he would be testifying at the trial as a fact witness instead. The opinion he drafted for the federal government is still available on the plaintiff's database, although it is unlikely to ever become an exhibit in this trial.

Today was the first of his two-day appearance and the plaintiffs must be very happy with how it went. Not only did he allow some "hot documents" to become evidence, he held the judge rapt attention with his stories of shenanigans in the boardrooms of Philip Morris.

Mr. Farone is famous enough that a few onlookers turned up to watch today's proceedings. They were not disappointed!

Introducing Mr. Farone, PhD.

William Farone is a chemist by training. (He received his PhD and earlier degrees from Clarkson University in nearby Potsdam, New York). Most of the first decade of his professional career was spent providing research support to the soap-giant Unilever in its development of new products.

In the mid 1970s, Mr. Farone was recruited by Philip Morris USA, where he worked for 8 years on projects aimed at developing a less harmful cigarette.

His unhappy departure from the company in 1984 came after a management shake-up that reduced both his career and his research prospects. But through the company he subsequently founded and his continuing research efforts, Mr. Farone remains involved in reducing harmful substances. His CV shows that well past the age that many retire, he continues to file patents and publish his research findings. 

Mr. Farone is the kind of man you would love to have dinner with. He is easy to listen to, with a gentle but colourful voice. He has twinkling eyes and a charming smile, although because the witness faces the judge, only Justice Riordan could see them.

At 73, he is middle aged by the standards of this trial, but his manner of speaking of long-past events makes them sound like current events.

See for yourself! You can also watch Mr. Farone being interviewed for the movie Addiction Incorporated, or read his expert report for the US DOJ case.

The link between Philip Morris USA and Rothmans, Benson and Hedges

Although the tobacco companies involved in this trial are all subsidiaries of multinational operations, they have tried hard to maintain a distinction between activities in Canada and those elsewhere. 

So when Philippe Trudel tried to use Mr. Farone's presence to put documentary records from Philip Morris USA on the trial record, Simon Potter (who represents Rothmans, Benson and Hedges) was quick to argue that these were not relevant to Canada. 

He was not successful. Justice Riordan has progressively opened the door to documents from "foreign" operations, and he was even more definitive today.  "I have ruled on this close to two-dozen times," he said. "What happened in the U.S. is relevant."

Mr. Farone provided clarity on why the work of the large scientific operation at PM-USA (Exhibit 1451) was relevant to an international operation like Canada. He explained that the Tobacco Technology Group (Exhibit 1452), coordinated these efforts and that the cross-appointments of its members with other PM structures helped the flow of information.

"The tobacco technology group was set up to disseminate information to all affiliates of Philip Morris Incorporated to control the dissemination of technology world wide" ... "They were serviced by the research and development that we were doing. It was complicated, but connected through the work arrangements." 

The link between smoking and death

At the time Mr. Farone worked at Philip Morris (1976-1984), the company had made no public acknowledgement of the harms of smoking. But among the scientists "there was no controversy" - they knew that smoking caused cancer and other diseases.

Nonetheless, the company provided guidelines on how to answer questions about smoking, and these continued to deny any health harms from smoking. (Exhibit 1463). These guidelines were inconsistent with what the scientists knew, said Mr. Farone.  "We absolutely knew that there were constituents in cigarette smoke – from literature going back to 1959 – that cause cancer."

Concerns about increasing public knowledge about health consequences of smoking apparently influenced the research grants for outside medical research. Philip Morris wanted to make sure that it did not fund research that "relate human disease to smoking" or advance "new tests for carcinogenicity." (Exhibit 1464

Nicotine and addiction

Mr. Farone said also that the scientists in the company accepted that nicotine was addictive or habituating, and that between those two words "there is a distinction without a difference. .... "Most of these people have chemical training – they see addiction within a chemical meaning – the binding of of chemicals to receptors in the brain."

Among the research projects were studies on rats to discover more about the effects of nicotine. One important test result, explained Mr. Farone, was that acetaldehyde "had a synergistic effect of reinforcing the nicotine."  This chemical was toxic when inhaled, even though it was turned into benign vinegar when ingested. Nonetheless "The company became interested that it could be added directly" to cigarettes, or that sugar could be added, as it would form acetaldehyde when burned. (Exhibit 1455, 1457, 1458, 1459)

Rats were not the only subject of nicotine studies at PM-USA. Mr. Farone talked briefly about experiments done on human subjects, and the varying interpretations given to results showing that smokers performed better on tests when they had nicotine in their system. "One of the interpretations was that people performed better when they had nicotine. Another was that when you remove nicotine from a smoker, they cannot perform as well." (Exhibit 1461r).

Litigation chill

As he explained it, 1984 was a year of change for the scientists working for Philip Morris. At the beginning of the year, both the President/CEO and Executive Vice-President were fired. A few months later, in April 1994, the axe came down on scientific research.

Mr. Farone was witness to these events. He had been asked by his direct boss "to attend a meeting in his absence dealing with issues of which research would be acceptable and which not."  The meeting was an historic moment.

"What we learned was that any research involving nicotine and addiction was to be terminated immediately."'  The laboratories were destroyed and "the people that were involved were escorted off the premises." Besides the work on nicotine, "we had to abandon projects that would tend to prove that smoking caused cancer or that it was addictive." (Among the affected scientists was Victor deNoble.)

Mr. Farone said today that the reasons for the sudden change in policy were told to him by the company lawyer, Mr. Fred Newman. "We were told that companies were sued in the previous year. They were going to eliminate any information in case there were further lawsuits." 

(Justice Riordan gave a notable response to Simon Potter's objection to this line of questions. "To be clear," said the judge "This is not privileged. Lawyers don’t dictate what research is to be done and not done.")

This was not the first time that litigation concerns had impacted his work at Philip Morris. He also recounted the cloak-and-dagger approach he encountered when trying to get the results of toxicity tests that were conducted off-shore (by INBIFO in Germany).

 "For legal reasons, they did not want the results transmitted to us," he explained.  I had to ask (colleague) Dr. Osdene. He would obtain the information at his home, on a telex that came to his house. He would communicate the results to me verbally. Then he would destroy the documents from which the information came."

The Cross-Examination

Mr. Trudel put his last question to Mr. Farone around the usual time for the afternoon break, and during the pause observers from the health community gathered in the hallways to make a friendly bet on how long the cross examination would take. It was hard to imagine that Simon Potter could pull any information helpful to the companies from this witness! 

Mr. Farone was brought into the discussion. Turns out there is indeed no teacher like experience.

After testifying in more than 100 tobacco trials, Mr. Farone has seen his fair share of industry lawyers. He predicted that the rest of the afternoon would be eaten up with unimportant questions about how good his employment standards were, how much he had enjoyed his work and other time fillers. "The lawyers will meet this evening to figure out their real questions." 

Mr. Potter proved him right. The last hour of the day was spent going over petty employment issues. As he seemed to have exhausted these questions - his thumb madly scrolling down his ipad -Justice Riordan gave him a break and allowed the court to adjourn 10 minutes early. 

Tomorrow Mr. Farone's testimony is expected to finish by lunchtime. The rest of the day will be spent in reviewing "2870" documents.  

To access trial documents linked to this site:

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

Tuesday, 12 March 2013

Day 124: One Year Later

For information on accessing documents, see note at the end of this post 

The Montreal tobacco trials entered their second year today. There was no birthday cake.

A year ago the court-room was packed with spectators and the corridors were full of camera crews and well-wishers. Today, the camera crews were back in force -- but for a difference trial and on a different floor. Outside our 17th floor courtroom the hallways were silent. No onlookers joined us on the public benches.

During a dull moment today, of which there were more than a few, I calculated that in court-time alone more than 15 person-years of work-time have been spent in courtroom 17.09 on this case. And we are not yet past the half-way mark!

The return of Christian Bourque

The witness today was Christian Bourque, vice-president of the polling firm Léger Marketing, and the plaintiff's expert witness on polling.

Mr. Bourque's mandate was to review the companies' ongoing knowledge of smokers' perceptions and knowledge about the risks of smoking and to identify the apparent goals of the industry's studies about the risks associated with smoking. (His expert report is Exhibit 1380)

This was Mr. Bourque's second appearance at the trial. Following Justice Riordan's instructions in January that an amended report was required before he could testify about Quebec-specific findings, he did a second analysis of Imperial Tobacco's research data.

It would seem that, according to Imperial Tobacco's studies, the state of knowledge about the harms of smoking was worse in Quebec than in other provinces. In this second report (Exhibit 1380.2), Mr. Bourque found that Quebecers' beliefs about smoking were weaker, and that the difference is statistically significant.

"There seems to be a difference in the level of knowledge or perception of the dangers of smoking in Quebec compared with elsewhere in Canada. Quebec respondents who knew or perceived dangers with smoking were proportionately smaller." (my translation).

Mr. Bourque also found that during these core years of the period in question, Quebecers thought you could smoke more cigarettes without hurting your health than did smokers in other parts of Canada.

Mr. André Lespérance asked no questions of his expert witness today. The brevity of his examination was countered by the perplexing exhaustiveness of the cross-examination by Imperial Tobacco's counsel, Suzanne Côté.

A long cross-examination.

Mr. Bourque appears to be another victim of Imperial Tobacco's recent tactic of detailed and prolonged cross-examination. For virtually the entire day, Suzanne Côté read from a thick binder of prepared questions, moving down the list as though taking inventory. Despite her obvious skills in grilling witnesses (no follow-up questions missed), there was an artificial note in this marathon of questions.

Ms Côté applied a fine-tooth comb to the methodology used by Canadian Facts, often focusing on methodological issues. Watching her were the expert witnesses for the defence team -- Montreal sociologist Claire Durand and Canadian ex-pat Raymond Duch.  I am sure they felt good that their detailed criticisms had been given air-time.

I confess I was unable to figure out the strategic thinking behind this approach, even to the extent of properly describing it. Many questions seemed benign and unimportant. Mr. Bourque's safe but mostly unmemorable answers were of no apparent assistance to either side.

Could the company be ragging the puck in order to delay the trial moving to the next stage? The thought occurred to me when Ms. Côté ceded the floor with not enough time left in the normal sitting day for the other two companies to get their turn. If the intent had been to force another day for Mr. Bourque, it failed. Justice Riordan insisted that this testimony finish today - which it did, an hour later than usual.

Knowledge and perception

One of the industry's core defences in this case is that the risks associated with smoking were "known" to Quebeckers.

It seems obvious that Justice Riordan will be required to rule on the epistemological issue about smokers' "knowledge" of health risks. Christian Bourque's appearance today may have foreshadowed some of the arguments the companies will make, and perhaps their cross-examination was designed to add yeast to this fermenting debate.

For example, each of the companies' lawyers today used Mr. Bourque's presence to enter into evidence results from seemingly arcane polls.

* Ms. Côté pointed to a Gallup poll that found that only 4 out of 5 Americans ("the same number as those who believed smoking was "dangerous for anyone" in 1991) believed that the earth revolved around the sun and not the other way around.

* Simon Potter drew attention to a Leger Marketing poll that questioned Canadians' belief in the supernatural (57% believed in angels!) to challenge the view that awareness and beliefs were different.

* Catherine McKenzie pointed to a 1991 Angus Reid survey showing that only 82% of Canadians correctly stated that there were 10 provinces.

Despite the distractions of the cross-examination, Mr. Bourque's report and his testimony are a reminder of how rich Imperial Tobacco's market research was. Many of the documents on which his report was based are available as exhibits 987.1 to 987.50.

They can't all be good days.

Yesterday's testimony by Wayne Knox was a delight. Tomorrow's appearance by William Farone looks very promising. Today will be soon forgotten.

To access trial documents linked to this site:

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

Monday, 11 March 2013

Day 123: Wayne Knox. "Brilliant!"

The entrance to Montreal's courthouse, the Palais de Justice, was surrounded this morning by TV crews. The media had come out for the preliminary hearing of Luka Magnotta, the accused in a sensational case of murder and dismemberment.

Meanwhile, in a courtroom several floors above the area secured for criminal trials, the Montreal tobacco trial completed its first year of hearings in its own dramatic way.

Mr. Wayne Knox, the former head of Imperial Tobacco's Planning Group, returned today to pick up where he had left off on February 14th - testifying about the operations of Imperial Tobacco's distinctive integrated approach to marketing. (Before the start of this morning's session he kindly drew me an organigram showing how this structure improved on the traditional "Proctor and Gamble" model of brand-management.)

Mr. Knox continued to provide his one-of-a-kind flavour to this trial. He appeared to welcome the questions put by the plaintiff's usually-hard-line Bruce Johnston, and seemed eager to educate the judge and lawyers about the inner workings of the firm. His pride in his work and the accomplishments of the planning group were evident.

The result was an interview that could have been mistaken for a university lecture on cigarette marketing in the 1970s and early 1980s, as illustrated through Mr. Knox's old files.

The almost-conversational tone of the day was emphasized by the unusual silence from Imperial Tobacco's lawyers. They continued to keep a distance from this witness, and let objections go unvoiced rather than give him a cue for further comment. (I think that Ms. Glendinning made only one objection.) A few times I wondered whether Mr. Johnston was deliberately taunting her as he took some questions over the lines that she usually fiercely defends.

In his wide-ranging testimony, Mr. Knox sometimes reinforced and sometimes refuted the testimony of others. Often he added details to information already before the trial.

He told the court:

* Project Huron and Project Erie, both of which aimed to find a cross-over cigarette using American-tasting burley tobacco, were named after the lakes that joined the two countries.

* Imperial Tobacco was interested in "all kinds of filters" as part of its efforts to find the "Holy Grail" of a cigarette that was "still satisfying" but "better for you."

* Constraints on advertising budgets that resulted from an agreement with government put increased emphasis on developing products before marketing. The company usually had 10 to 15 projects in the hopper, even though it could only launch 2 or 3.

* The reinforcement of the social acceptability of smoking was a "natural, unavoidable by-product" of lifestyle ads for cigarette brands, but such promotions were "not done on purpose."

* Maintaining social acceptability was not a goal of branded -advertising, but "a more overall kind of a thing. Our general activities would support these kinds of phenomenon."
Fiscal 82 marketing plans (Exhibit 292-82)

* Imperial Tobacco was the "only company that measured [smoking among those] under 18... This was the single largest thing that made Players Light such a success."

* The company never researched or targetted youth who didn't smoke but "it didn't mean we weren't interested! We were very interested."

* Imperial Tobacco used sports to promote its brands because of the appeal to young males. "They were young. They were male. They were in arenas. That’s where we spent our money."

* There was no way the company could prevent advertising from having an impact on non-smokers. "If they had magazines for only smokers, we could have advertised there. You are forced to expose your advertising to non-smokers, not because we wanted to but because we had no choice."

* Lower tar cigarettes made it easier for smokers to quit, as the "step down" was less than for a high-tar cigarette. "Forty-eight percent of Canadians have quit smoking... they didn't have to be tied down in a spa in California to do it...  We didn't get much credit for that."

* The allaying of concerns about smoking after the marketing of low-tar brands was "a by-product of providing smokers what they wanted to smoke. The Surgeon General's reports talked of excessive smoking – the more you smoked the more dangerous it was. They didn’t say the corollary  - that the less you smoked and the lower the tar, the less harmful."

Strong evidence becomes stronger

Mr. Knox was able to speak on behalf of several documents that had been introduced to the trial under the May 2nd judgement, and thus allowed the "2M" to be removed from these records. Among such exhibits were his own reflections in 1976 on "why people smoke" (Exhibit 1041), and a 1973 reflection on whether smokers compensated for lower tar-nicotine delivery by increasing the number of cigarettes they smoked. (Exhibit 1022).

One of these promoted documents is a partial record of a 200+ page history of the company which Mr Knox said today he had authored. (Exhibit 1007). Justice Riordan voiced my thought "why is this confidential?" and was told by Mr. Lespérance that an agreement had been reached to argue its confidential status later. Intriguingly, Ms. Glendinning volunteered that additional parts of this record had been located and forwarded to the plaintiffs. This is one to watch for!

Everyone has a favourite exhibit - this is mine

One of the new exhibits presented today (Exhibit 1448) was a position paper authored by Mr. Knox shortly before he left the company in 1985.

This is a hand-wringing projection of a bleak future for the company and a plea for it to reorient its approach. The 10 page paper was found at BAT's Guildford depository in 1999, tucked among other records brought back by marketing psychologist Bob Ferris after his visit to Mr. Knox and others to discuss Project Viking.

Mr. Knox explained that this document "was written at at time when the industry finally peaked ... none of us knew how fast it was going to decline. A lot of us were writing think pieces of what it might look like."

Mr. Knox provided a graphic snapshot of the Canada's dwindling smokers and urged the company to look beyond "shorter term market share growth" and instead focus on "longer-term profitability." 

He suggested that against a worst case scenario of there being no smokers in 2020, the company should set the objective that smoking rates went no lower than 35%, and that only 60% of Canadians thought that smoking was "dangerous for anyone." 

The cross examination

The extent of Imperial Tobacco's aversion to Mr. Knox's testimony was reflected in their decision to not put any questions to him about his comments over the two days of his testimony. In a brief cross examination, Ms. Glendinning asked only for Mr. Knox to confirm that the two of them had met for about an hour and a half before he had been subpoenaed, and that after he received a subpoena he had refused her invitation to meet.

Me thinks the meeting with Ms. Glendinning must have gone badly. Mr. Knox had worked with Imperial Tobacco's lawyers in other litigation efforts, and earlier testified he had consulted to the company up until 14 months ago. Today he was very friendly with Imperial Tobacco's former lawyer, Simon Potter (Mr. Potter now works for Rothmans, Benson and Hedges).

During the lunch break, Mr. Potter looked uncomfortable as Mr. Knox encouraged him in front of an elevator full of court observers to ask questions about a "funnel" diagram he had once drawn for Mr. Potter to describe documents that were generated by students and others contract workers who had little decision-making power. Low and behold, two hours later, when Mr. Potter had his opportunity to question Mr. Knox, the same questions were asked.

Humour is in the eye of the beholder

There were many light moments to the day. Unsure of how to categorize Exhibit 1448, Mr. Johnston had asked the witness how he "would describe the document." -- "Brilliant" was the amusing, if not modest, reply.

There was much laughter as well when he provided an answer to a seemingly innocuous question about how Imperial Tobacco's library was organized.

"Badly," he said baldly, and then explained his own view of the ITL's librarianship. "I had a messy office. People told me I should turn things over to the library, and I said that if I do I will never find them again."

Unprompted, he waded into the topic of document destruction. "They wanted to destroy documents because they were running out of room. I always used to say no, it drove them nuts. The library people didn’t like me very much. I didn’t like them very much." 

Justice Riordan gave Mr. Knox an uncommon compliment when thanking him for his time on the stand. "I have really enjoyed listening to you."

The defense side did not seem to share the sentiment.

A costly objection

Mr. Knox was not on the original schedule of plaintiff witnesses, and only testified in the trial as a result of Imperial Tobacco's actions. During the very first attempts to introduce documents under the 2870 rule, the plaintiffs had proposed for a letter from (deceased) Bob Bexon to (the not-found) Mr. Knox to be introduced. (Exhibit 267)

"The author is dead, but the recipient is not dead," Ms. Suzanne Côté objected on December 13. "I am told that Mr. Knox, unless he died yesterday, is still living."

Philippe Trudel had pressed for more information, and Suzanne Côté had little choice but to undertake to find out. A month later (January 14th), she invited Justice Riordan to order her to provide the address for Mr. Knox. The rest, as they say, is history.

The Bexon letter that Suzanne Côté tried to block is a damning piece of evidence - it calls for actions to change attitudes to being "more conducive to continued tobacco use" and to "initiate projects to insure the continued uptake of tobacco products by young Canadians." But forcing the plaintiffs to find Mr. Knox served only to put more damaging evidence on the record.

The Wells Pritchard Memo: An important detail in the document destruction story. 

The long-awaited discussion of the status of a 1989 memo from Brown and Williamson counsel, JK Wells III to the company president, R. Pritchard, took place today.

In the morning, André Lespérance explained why he felt that there should be no privilege granted to this document, especially in light of Justice Riordan's ruling on privilege related to David Flaherty's reports. He provided information on decisions of other courts -- where the privilege had not been claimed (during the US DOJ case), and where, he said, it had been granted (State of Washington) for reasons not relevant to the Blais-Letourneau cases.

In the late afternoon, Deborah Glendinning argued that the privilege had never been waived in the U.S., but that the document became public because it was a "compelled production." She wrapped her argument tightly in the corporate veil, stressing that the document and the events it detailed had nothing to do with Imperial Tobacco, as they concerned BAT and Brown and Williamson. "It wasn't us.... They were talking amongst themselves. Imperial never got a copy."

Justice Riordan looked very pensive throughout these arguments, and said he would reflect and may or may not give his decision tomorrow.

More 2870 documents

With slightly less than an hour in the sitting day, the court returned to the review of the last remaining documents on the plaintiff's most recent list of 2870 documents, which was first discussed last Friday.

Today, the mood seemed slightly better. The objections were more perfunctory, and the process went more smoothly. At least a score of documents were upgraded from "2M" status, and only a few were refused.

One of the criteria Justice Riordan had established in his earlier rulings was that draft documents could not qualify under this process. Over the past couple of days, the judge has been able to disabuse the companies' lawyers that proposals, "tentative agendas" and letters written in the conditional or subjunctive tenses do not qualify as drafts.

As the judge put it today: "For goodness sake!!!"

Tomorrow, the plaintiffs' expert polling witness, Christian Bourque, will return to present his amended report. On Wednesday and Thursday, William Farone will testify.