Monday, 4 March 2013

Day 119: March-ing on

For almost a year, the Montreal trial of the Quebec tobacco class action suits has followed a loose pattern of  three sitting weeks followed by a one-week break from court. The rhythm set by this pattern often makes the first day back from a break - like today - feel a little like back-to-school.

But this time it is an end-of-term feeling that seems to predominate. The plaintiffs are scheduled to finish their proof before there is another break. There is a lot to be done.

For this first sitting day in March, the business at hand was the testimony of Imperial Tobacco's retired microbiologist, Minoo H. Bilimoria, Ph.D. I have forgotten, if I ever knew, the reason he did not testify last summer at the same time as the other Imperial Tobacco scientists.

Frail elderly or sly like a fox?

Mr. Bilimoria, at 82 years of age, is the oldest witness to appear in the Montreal court during this trial. (The evidence of Mr. Peter Gage, who is a decade older, was given through video-conference).

It was not only his thinning grey hair and fallen face that today gave him the air of being among the "frail elderly." His casual clothes (he is the first male witness to dress in neither tie or jacket) and his look of stressed confusion made me think a caregiver might be close at hand.

But looks can be deceiving. There was nothing frail in Mr. Bilimoria's ability to stand throughout the long day, even though he had been invited to sit should he wish to do so. Nor was there any sign of mental frailty as he followed the questions put to him without any apparent difficulty in hearing them or working through sometimes challenging syntax and pronunciation.

When Mr. Bilimoria gave an answer that seemed to have nothing to do with the question - as was often the case -  it felt like this reflected his ability to deliberately sidestep an issue rather than any inability to understand it.

Sidestep he did. Frequently and with a nimbleness and flat delivery that made some answers sound suspiciously rehearsed. "I do not have the expertise,"  "It is not my area." "You are asking the wrong person." "I have no information on that." "I was just a scientist who did the work. I had no management decisions.” 

Philippe Trudel was the plaintiffs lawyer whose unhappy job it was to question this witness, and it was clearly a frustrating exercise.

With a younger witness, he might have been tempted to be more forceful in following up on the many contradictions in Mr. Bilimoria's testimony. He did try once or twice to pounce on a suspicious answer, but it didn't go very far. Before long, the lawyer seemed resigned to just letting the contradictions between Mr. Bilimoria's verbal testimony and his written work speak for itself.

Mr. Bilimoria's double life.

Mr. Bilimoria joined Imperial Tobacco in 1969 and was on the company's payroll for the next quarater-century. But for the bulk of that time (from 1975 to 1991) he was not located at the Imperial Tobacco laboratories in St. Henry, but at the pathology department of  McGill University. That is where he "assisted" researchers who had received grants from the Canadian Tobacco Manufacturers Council, James Hogg and Donald Ecobichon.

Observers and colleagues might be forgiven for not having understood that Mr. Bilimoria's work at the university was not independent scientific research, but was part of an industry strategy.

The industry connection was never made transparent. Mr. Bilimoria published his scientific findings as though he were an ordinary visiting scientist at McGill University, and not as a tobacco-industry employee.

When asked by Mr. Trudel today why this had happened, Mr. Bilimoria disavowed any role in the decision.

"When you published at McGill, did you mention that you were employed by Imperial?"
"The publication was written by the professor - if he felt like writing McGill, he wrote McGill, if he felt like writing Imperial Tobacco, he wrote Imperial Tobacco – for me it made no difference."
"You didn’t find it important that you were working for Imperial Tobacco?"
"I didn’t even think about it."

Even when Mr. Bilimoria was the principal author (examples 123) he did not reveal his industry affiliation.

(Those saddened by the apparent ability of the asbestos industry to generate friendly research at McGill University through J. Corbett Mcdonald  might also want to take note of the sad history of Donald Ecobichon's service to the tobacco company - still a cause for boasting by McGill's public relations staff.)

The Ames test  

Throughout his career at Imperial Tobacco, Mr. Bilimoria's job was to "look at the effect of tobacco on cells and cell systems." He explained that this meant looking for the cancer-causing, tumor-causing or mutation-causing effects of cigarette smoke on cells from microbes or small mammals (not humans).

The Ames test was developed around the time Mr. Bilimoria attached himself to McGill University, and it would become the mainstay of his research in the following decades. Many other scientists - including colleagues in the tobacco industry -- were doubtful about the value of the Ames test to compare types of tobacco. Philip Morris's chief scientist, in a frankly-worded memo to his Canadian colleague,  said the research was worthless.

Mr. Bilimoria still has a rosy view of these tests. Mouse skin painting, he explained today "is a very complicated test, very expensive test, very long duration test" for which Imperial Tobacco did not have facilities. Besides, he said "why would I do a two-year test if I could do a two-day test?"

One of the last documents presented to Mr. Bilimoria today was a summary of research found at BAT's document depository in Guildford, England by the federal-government lawyer who was once a familiar presence in this courtroom, Mr. Maurice Regnier. (Exhibit 1436)

Whatever he might have said earlier in the day, Mr. Bilimoria acknowledged that he had written the content of this report, which documents that Imperial Tobacco measured whether:
* certain additives would make smoke more - or less - mutagenic. (Adding diammonium phosphate increased the mutagenicity of tobacco sheet, but tropical fruit flavourings didn't seem to make too much difference)
* sidestream smoke was more or less mutagenic than mainstream smoke
* its brands were less or more mutagenic than other company's brands.
* changing the circumference or butt length of cigarettes affected the ability of the smoke to harm cells.
Comparing the mutagenic properties of Canadian commercial cigarettes
Exhibit 58-27

Science lost, found or never done. 

Mr. Bilimoria professed no knowledge that his scientific reports had been destroyed by Imperial Tobacco, or even that there had been a policy decision in the late 1980s to remove documents from the company's files. He told Mr. Trudel that reports from British American Tobacco were made available when they were relevant.

One of the documents referred today might have been expected to be among Imperial's files, but was not. It is a report of a meeting that Mr. Bilimoria attended in Southampton in 1981, during which the scientists concluded that mouse-skin tests were recommended, but were not "cost effective."  (Exhibit 1433 - restricted, but available on Legacy).

The group wanted more tests to be done, including tests for some of the diseases that are the subject of this trial. "Efforts will be made to develop short-term tests related to atheroclerosis, bronchitis and emphysema," the meeting notes reported.

"Do you know if tobacco products manufactured by Imperial Tobacco were ever tested for these diseases?" asked Philippe Trudel.
"I don’t know," replied Mr. Bilimoria.

"Were these tests ever developed?"

"Do you know why they were never developed?"
Shortly before 4:00 p.m., Mr. Trudel asked his last question of the witness. He wanted to know whether Mr. Bilimoria had brought with him any contracts with Imperial Tobacco, as he had been asked to do. The witness said that there had never been any contract, either before or after his retirement, and that no such papers had survived his move from a house to an apartment. He said there had been no confidentiality or similar agreements with the company.  

Mr. Trudel thanked the witness and said he had no further questions. The cross-examination, expected to take only a couple of hours, is planned for tomorrow morning.

The road ahead - more pitstops?!

With only three weeks left to tie up all the loose ends in the plaintiffs' proof, Justice Riordan seemed impatient to get an inventory of the apparently growing number of issues that need to be managed in the coming weeks.

To an already-crowded agenda, some new elements were talked about today. It was reported that the plaintiffs have sent subpoenas to eight or more witnesses who have already testified, including Jean-Louis Mercier, Anthony Kalhok, Guy-Paul Massicotte and others. The sole reason for this, explained André Lespérance, was to have the evidentiary status of certain documents improved. (Exhibits that result from the "May 2nd ruling" have a lower standing than exhibits where the author or recipient has testified.) The tobacco companies are not willing to offer any agreement for another process, so these authors and recipients will return.

During her explanation why Imperial Tobacco wanted to use court time in this way, Imperial Tobacco's lawyer, Deborah Glendinning, also hinted that it might suit the defence teams to have the plaintiffs' proof drag on longer than it would if the companies agreed to facilitate some processes.

 "I don’t think we are going to be finished by the first week of April," she said. She did indicate that the companies would follow through with their commitment to provide some suggestions on how to  ensure there is no down time in April as a result of their pre-defence motions.

As Justice Riordan packed up his computer and prepared to adjourn the court, he remarked wryly that he hoped he would "be able to get to sleep with all the anticipation for tomorrow." 

Tomorrow, Minoo Bilimoria is expected to finish his testimony. There will be discussions on the trial agenda, the return of Jeffrey Wigand and other witnesses and - if there is time - discussion of more documents for which use of the article "2870" rule is being sought.