Tuesday, 5 March 2013

Day 120: Slowing things down ...

There was some gear-shifting today at the Montreal tobacco trial, as things moved to an even slower pace.

Today's cross examination by Imperial Tobacco counsel, Nancy Roberts, of her clients' former microbiologist was what my Indian friends would call a "time pass" and what we might call a time filler.

Quantity over quality

A few weeks ago, Suzanne Côté had introduced moves from a new play-book during her cross-examination of André Castonguay. It required multiple documents, a focus on small points, and many repetitive questions.

Today, Nancy Roberts followed this example during her cross examination of Minoo Bilimoria, albeit with her own slower style. (This is the first time Ms. Roberts has cross-examined a witness at this trial -- a year into the case and there are fresh rotations.!

Despite assurances yesterday that "I'll probably need about an hour and a half," the hours dragged by while she slowly put on the court record what seemed to be the entire publication record of Mr. Bilimoria. We should be thankful, I suppose, that the witness had not been more productive during his 25-year career at the company, or we might still be in court having her ask the same questions of each document.

Was this another effort to develop a short term test for biological activity? 
Was it conducted as part of your work at Imperial Tobacco?
Did any one at Imperial Tobacco attempt to modify this report?

Did anyone at Imperial Tobacco attempt to prevent you from publishing this research?

These publications will soon be on the plaintiff's database as Exhibits 20024.1, 20024.2, etc. If ever you wanted to know anything about the "Responses of rodent hepatic, renal and pulmonary aryl hydrocarbon hydroxylase following exposure to cigarette smoke" or "Protective antioxidant mechanisms in rat and guinea pig tissues challenged by acute exposure to cigarette smoke," you know where to go.

In contrast to the questions, Mr. Bilimoria's responses were brief. He occasionally elaborated on how his research fit into the company's search for a quick way to measure whether changes to cigarette design would affect the health impact of cigarette smoke. He continued to sidestep questions about company policy, maintaining that he did not work such a level. He helpfully confirmed her suggestions that Imperial Tobacco management had not interfered with his publication efforts. Mostly he said "yes" or "no".

How public is public?

One of the themes of Ms. Robert's questions was the openness of Imperial Tobacco to having its science published and made available. Perhaps she confuses scientific publication with public knowledge, or hopes Justice Riordan will.

In meetings where Mr. Bilimoria had presented a paper, she made efforts to have him testify that the meeting had been open to the public (she did not ask how much the conference fees were). Nor did she ask Mr. Bilimoria about the Canadian circulation of Beiträge zur Tabakforschung International or other journals where his findings were published.

How responsible is government?

As other Imperial Tobacco lawyers have done, Ms. Roberts emphasized the relationship between Imperial Tobacco scientists and Agriculture Canada officials. She tabled a report prepared by that department on the mutagenicity of experimental cigarettes, and again drew attention to the participation of Agriculture Canada officials at meetings held by and for tobacco chemists (Exhibit 20024.3). Mr. Bilimoria testified that he had shared the methods for a new toxicity measure (the NMFI or nitromethane fraction index) with the federal government. I think this is the first time that the NMFI has been referred to in this trial.

The rebuttal

For the second time in recent weeks, Imperial Tobacco has opened the document flood-gates during a cross-examination. For the second time, the plaintiffs ignored most of the material, and used their opportunity to ask more questions on the "re-direct" to clarify a few points.

Mr. Trudel invited Mr. Bilimoria's to confirm his discovery that BAT had made an arithmetic error, and that Players Light cigarettes came out with higher levels of mutegenicity than competitors' brands. A small point, but an entertaining one in the context of the day.

He asked Mr. Bilimoria again to explain why he hid his employment status at Imperial Tobacco when he published as a McGill researcher. It took several questions to get the answer - "I didn't see the relevance of it."

He pressed Mr. Bilimoria on his testimony about being free to publish what he wanted  "Yesterday, you said that there was no restriction on what you can publish with respect to the work you were doing internally at Imperial Tobacco."

But when shown examples of "restricted" publications, Mr. Bilimoria conceded that he would not publish commercially sensitive research, such as that involving research on "reducing activity." I suppose if you know enough to not ask, then you can indeed consider that you were never refused.

Among Mr. Trudel's last questions were ones which went to the core credibility of Mr. Bilimoria's testimony -- the fact that his work was not scientifically credible, even in the eyes of his Scientific superiors.

The witness was shown a report by BAT senior scientist, Alan Heard, after his visit to the Montreal labs: "the work on biological activity currently confined to Ames test is without foundation (other than as a simple screen). Thus emphasis must await identification of a meaningful battery of bioassays (currently being developed) before any useful purpose can be served by the project.”

(Dr. Heard was more charitable than his counterpoint at RJ Reynolds, Mr. Colby, who considered Mr. Bilimoria to be an "unimaginative and very mediocre researcher.")
In that sense, Mr. Bilimoria's entire career at Imperial Tobacco might be viewed as a "time pass."

The man whose career was focused on measuring the harmfulness of cigarette smoke ended his testimony today by stepping back from any conclusion about smoking causing cancer. Somewhat exasperated, Philippe Trudel pushed him: "From today, as we stand, you do not agree that it is proven that cigarettes cause cancer?"  

"Directly, no." were Mr. Bilimoria's last words before being thanked by Justice Riordan and invited to go home.

A courtroom filibuster?

With 10 sitting days  before the plaintiffs are expected to wrap up their case, the trial schedule is getting more and more cramped. In addition to 9 witnesses, there are several issues that require court-time, and a few hundred more documents to be processed through the system.

There is no time to lose -- but Justice Riordan may have inadvertently given the defendants an additional incentive to deliberately lose time in March and thus force the plaintiffs' case into the month of April.

For many weeks, the judge has been trying to fend off having to hear and rule on the companies' position that they should not have to present a defense in these suits, saying that the case against them - in whole or parts - has not been made. (The exact nature of the demand will not be known until they file it two weeks after the defense closes its case).

Last week Justice Riordan tried to stop the proceedings from being put on ice between the end of the plaintiffs' proof (end March) and the arguments on the "non-lieu" motions, which the industry lawyers say cannot be fit into their schedule until the end of April. He accepted the companies offer to consult last week and come up with a "some other use that we can make" of the three weeks now sitting empty on April's calendar.

From where I sit, it looks like their preference is to avoid advancing any of their witnesses in that period and to instead force force an over-time period on the plaintiff's proof. If they rag the puck -- as they seemed to do today -- they can maybe make that happen.

(Justice Riordan today described the long and energetic opposition by Imperial Tobacco to confidentiality requirements  for Jeffrey Wigand's financial records as a "mountain out of a molehill" and "blown out of proportion". There's plenty more molehills to come!).

On tomorrow's menu:  Former head of marketing at Imperial Tobacco, Tony Kalhok, will return to testify in the afternoon. Other business will include the "Wells-Pritchard" memo, and the introduction of documents used in the cross-examination of André Castonguay.