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."
"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.
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.
Click on: https://tobacco.asp.visard.ca
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.
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