Wednesday, 28 August 2013

Day 162: Loyal to a fault?

To access trial documents linked to this site, see note at the bottom of this post.

After being sworn in, the first thing that a witness appearing at the Montreal tobacco trials must do is to state their name, address and age.

From this small amount of information provided by Andrew Porter during his first appearance before Justice Riordan last year, I began to form an impression of the character of his relationship with his Imperial Tobacco, his employer of three decades.

Imperial Tobacco's converted HQ
I recognized the home address given by Mr. Porter only because it had appeared on many of the trial documents. It was the historic address of Imperial Tobacco headquarters!

(By the time that Mr. Porter retired in 2007, Imperial Tobacco had moved across the street to more modern facilities. Its old plant was converted into "Imperial Loft" condos.)

What can you say about a man who chose to spend his retirement years in the same set of buildings where he had worked for three decades? And to remain within spitting distance of his former employers?

This week it became clear that in more ways than one, Mr. Porter had never really left the building.

Back to normal -- or maybe a new normal

The heavy dose of objections laid down by the plaintiffs yesterday seemed to have had some therapeutic effect.

Today there was a lot less procedural wrangling, and even some negotiations! Justice Riordan seemed to be nudging both parties into agreeing on how the scientific reports from the companies could be used as evidence. (No firm agreement yet!)

Plaintiff lawyers André Lespérance and Pierre Boivin (and occasionally Philippe Trudel) continued to challenge Nancy Roberts as she resumed her series of questions to Mr. Porter, although at a much reduced pace and only with spotty success.

Today, Ms. Roberts maintained her equilibrium, and did not allow these interjections to distract her from moving through a very long list of prepared questions.

As usual, Justice Riordan ruled in favour of information being presented to the trial. Although he allowed Ms. Roberts to ask Mr. Porter about his opinions and general knowledge, the judge made clear that these would not be given the same weight or importance as expert opinion.

Mr. Porter's views

For the most part, the exhibits presented today (Exhibits 20176 to 20209) are reports or publications related to measuring tobacco chemistry, altering it, or assessing its impact on human beings.

Very little of the science in these documents was discussed in any detail. Instead, the reports were used as a springboard to allow Mr. Porter to counter the version of events presented during earlier testimony.

No safety standards - but a "spectrum of harm reduction"

Mr. Porter was asked early in the day whether there were any "tests or panel of tests that will prove that the risks to health would decrease with any particular modification" to cigarette designs.  No, he said. There were no tests that establish that one cigarette is safer than another.

Yet yesterday he had described the tests that were used to try to do just that - and today he made it clear that he saw certain cigarette designs in a hierarchy of safety.

"If you go back over time there have been all sorts of different approaches to reduced risk cigarettes," said Mr. Porter. The reason that so few made it to market was because smokers didn't like them.


Mr. Porter considers filters to be an effective way to reduce the toxins in cigarettes. He explained that they can achieve an across-the-board reduction in all solid components or even all compounds ("general reduction), or can be designed to target specific smoke chemicals ("specific reduction").

The cellulose acetate filters used on Imperial Tobacco brands are less effective at reducing cigarette harms than other filters Imperial Tobacco tested (i.e. charcoal or polypropelyne), but are more popular with customers. "The problem with charcoal is that it changes the taste of cigarettes considerably. We haven’t found consumers willing to change."

Novel designs

One of the first efforts to design a new (safer) kind of cigarette dated from the 1970s, when British manufacturers created artificial tobacco from cellulose and flavours. This was tested and supported by health authorities in the United Kingdom, but never tried in Canada. Smokers didn't like it. Moreover, he pointed out "it still requires the material to be burned and whenever you burn material, you create some form of risk." 

Both BAT and RJ-Reynolds developed technology for cigarettes that would "heat not burn". BAT never brought theirs to market, and RJR's Premier did not survive the test-market phase.

The simulated cigarette, FAVOR, was "further in the reduced harm spectrum" and was test-marketed in Canada. Mr. Porter reported on his own experiment with this "plastic tube with a sponge inside with flavours and nicotine."  "It was disgusting," he said. "It didn't sell, let's put it that way."

Different tobaccos

Although Mr. Porter said that some types of tobacco are more harmful than others, he didn't report how the tobacco in Canadian cigarettes compared with others.

Ways of treating tobacco can also affect the compounds it produes, he said. He described the various forms of reconstituted and manufactured tobacco used in Imperial Tobacco products in ways that suggested they were improvements on untreated tobacco, as the cigarettes made from them produced lower deliveries of tar and nicotine.

He admitted that ITL had found other ways to manufacture processed tobacco (Gerlach) which they thought was less mutagenic. But the chemicals required in the manufacturing process triggered worker-safety issues. And - again - "the taste was completely unacceptable to smokers."

He reported on efforts by ITL to reduce the tobacco specific nitrosamines in the tobacco used in Canadian cigarettes. By changing the curing methods, he said, the levels of TSNAs were reduced by 90%.

Project Day

Mr. Porter was not given the opportunity to formally present Project Day, the flagship harm reduction program that was the focus of his work for over two decades.

But he rejected the view that Project Day was driven by marketing concerns, or that it was not supported by senior management.

Mr. Porter had never seen the haughty exchange between the highest management levels of BAT and ITL in the Canadian research efforts were described as "overly simplistic" and not worth supporting. (Exhibit 255A). But this memo had not stopped the work, Mr. Porter testified. The efforts ramped up in subsequent years, and eventually BAT absorbed them into its own centralized research department.

As for why, after 25 years' effort and vast sums of money, Project Day has not made it to market? Mr. Porter had a long list of reasons. Problems with suppliers. Problems with laboratories. Problems with enzymes. Problems with filters. Problems with shifting goal posts from health authorities.

(He had more to say about Project Day, but his lawyer wasn't prepared to have it said in open court. Rather than go in camera, it was agreed that he could provide this evidence through an affadavit.)

There may be flies on some of you guys...

Mr. Porter was asked a wide range of questions that allowed him to refute earlier testimony in the trial.

* He said Mr. Wigand was wrong to say that coumarin was a carcinogen, as "Coumarin is not on the IARC list of  group 1 or 2 – it is a group 3." What is more, this is an additive that has beneficial properties! "Some of its derivatives are shown to have anti-tumorigenic activity."  

* Despite evidence that BAT had planned to restrict scientists' communication, (Exhibit 82B), such a policy had never been implemented at Imperial Tobacco. Mr. Porter's full access to documents was not diminished by the document retention policy. And lawyers never vetted or reviewed his research reports.

* Imperial Tobacco had never designed cigarettes to "cheat league tables," and had never added nicotine to cigarettes and had never used designs that increased cigarette delivery.

A proud and ethical team

Mr. Porter was unequivocal when replying "no" to the question "did Imperial engage in any unethical behaviour, in your view?" 

Ms. Roberts' last question invited him to describe the work of his department. "It was thorough. It was professional. It was done with great ethical considerations. It was somewhere where people were proud to work."

But what did he really think?

There were three minutes left on the clock when Ms. Roberts' questions were finished, but Justice Riordan extended the session to allow the plaintiffs to decide whether they needed an extended cross-examination.

Mr. Lespérance wanted to know whether when Mr. Porter joined the company he believed that smoking caused cancer or whether he agreed at the time with the official industry line. (Exhibit 580C) "The Canadian Tobacco Manufacturers Council ("CTMC") also holds the same view that the causal relationship between smoking and various diseases has not been proven."

From this point on, there was a notable change in the witness' body language and tone. He leaned on the table as he turned to face Mr. Lespérance. "At at that time I probably thought that it was a causal relationship.... I held the view that it was very likely."

So was it ethical for a company leader to say it wasn't causal? 

"If it hadn’t been proven it would be ethical to say it. If it had been proven it would not be ethical. So it then it comes to the question of whether it had been proven. I didn’t say it was 100%. There is a very big difference between likely and proven."

As Mr. Leséprance pushed for a clearer answer, the replies became more vague. Very likely, good possibility - "to me it is the same."

Mr. Lespérance showed the witness a newspaper report where his former boss took a different view. "No, it is not the position of the industry that smoking causes any disease,"Jean-Louis Mercier, chairman and chief executive officer of Imperial Tobacco Ltd. told the Commons committee." (Exhibit 1322-pp-2m)

(Parliamentary Privilege! objected lawyers from ITL and RBH, but the question was again allowed).

Mr. Porter further nuanced his answer. "I think it was a risk factor for a number of disease, but as to whether we know the exact cause, on that basis you can say that we don’t know."

For the past two days, Mr. Porter had given the impression of earnestly trying to answer the questions put to him, even though he often needed a little prompting from his lawyer. During his exchange with Mr. Lespérance, he seemed evasive and unwilling to answer clearly. 

With this impression established, the plaintiffs reported they had no further questions.

But Justice Riordan picked up where they had left off. He wanted to know how Mr. Porter and his team of 8 or 9 scientists could have worked for decades to reduce the carcinogens in cigarette smoke without ever talking about the issue of causation.

The judge tried several times to get an answer that reconciled this apparent conflict in logic. The best Mr. Porter would give him was that they had operated on the working assumption that smoke was carcinogenic, or a risk factor for these purposes.

There were no more questions. After 6 days of testimony - 4 for the plaintiffs and 2 for the defence - Mr. Porter was free to go.

For the second week in a row the hearings ended a day early and the Thursday sitting was cancelled. Some grumpiness was expressed, but no one seemed too upset at the prospect of another long summer weekend. Happy Labour Day.

Another BAT/ITL scientist - Mr. Graham Read will testify when the trial resumes on September 9th.

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, 27 August 2013

Day 161: Therapeutic objections

To access trial documents linked to this site, see note at the bottom of the post.

You could almost hear the mental chess board being re-arranged yesterday when Justice Riordan broke it to the plaintiffs that they could expect no reciprocity in the kinder-gentler treatment extended to the tobacco companies' exhibits over the first months of the "defence proof".

"Although one side accepts a modus operandi which seems to them to be logical and practical even if does not strictly follow the rules and procedures, it is still difficult to impose it on the other side without their consent. That is my problem. That is my situation," he said.

Thousands of exhibits have been introduced to the trial by the companies over the past few months. The exact number is still a little mysterious, as the indexing can't keep pace with the volume, but there are already more than 22,000 exhibits on the exhibit database.

At times, batches of documents numbering in the dozens or even hundreds have been entered in one fell swoop, each having been given a pre-assigned exhibit number. This new process was encouraged by Justice Riordan at the beginning of this year, and is an obvious time-saver for everyone.

But a significant asymmetry in the new approach was revealed following cross-examination last week of JTI-Macdonald's historical witness, Robert Perrins. No matter what the companies' lawyers had been able to do earlier in the trial. What did matter was that Justice Riordan could not take away the companies' right to deny consent.

Like a game of snakes and ladders, the plaintiffs found themselves back where they began - having to satisfy the time-consuming procedural hoops used earlier in the trial. Moreover, by having consented to the industry's fast lane, they had created a one-sided trial record of objections and rulings on these issues.

Yesterday's reminder from the Judge seems to have been a turning point. This morning the plaintiffs came to court with a new game-plan. For today, at least, they would try to remedy the situation with what André Lespérance called "therapeutic" objections.

The best laid plans

The witness scheduled to testify for the bulk of this week is the mild-mannered scientist, Andrew Porter. His testimony is a way for his former employer, Imperial Tobacco, to provide a counter-narrative to the allegations about the company's scientific knowledge and activities.

(Over a year ago, Mr. Porter first testified as a fact witness for the plaintiffs. The scientist who was originally chosen by ITL to present its scientific defence, Stewart Massey, passed away early in 2013).

Documents waiting
for Mr. Porter's appearance
Primed to help Mr. Porter through this task today was Nancy Roberts. Today she arrived equipped with a thick binder of prepared questions and several boxes of documents,

Given the events of the past months, Ms. Roberts could be forgiven for expecting that her main challenges would be to try to match the speed with which her colleague, Suzanne Côté, can plow evidence into the trial and to have this witness provide memorable - or at least intelligible - testimony.

But neither Ms. Roberts nor her seat-mate today, Deborah Glendinning, were in court yesterday and it may be that no one had briefed them that Justice Riordan had pretty much forced the plaintiffs to show a little muscle.

What goes around, comes around

It wasn't long into Mr. Porter's testimony that it became clear that today was not business-as-usual.

Ms. Roberts found herself facing a barrage of objections. Mr. Lespérance and Mr. Boivin were a tag-team. Hearsay. Opinion. Irrelevant. Improper for a fact witness. Leading. Not the right witness for the document. 

Justice Riordan showed the same even-handedness as he had yesterday. Deciding that the sauce for the goose would be applied to the gander, he upheld the same kinds of objections that he had supported from Imperial Tobacco's team in earlier parts of the trial.

With her body language alone, Ms. Roberts gave every indication of being both surprised and offended by the turn of events. Her shoulders arched back and her chin rose a few inches as she frostily defended the line of questions she had prepared, many of which seemed to leave her vulnerable to attack.

While the tension rose at the front of the room, those of us in the back leaned in to watch, trying to hide our smiles.

"I don’t think they are doing anything different," he responded to Ms. Roberts' complaint after he upheld yet another objection and put yet another of her exhibits under reserve. "I am not commending or condemning. They are doing exactly what you did."

By mid-afternoon, Mr. Lespérance let up his objections (perhaps because the documents that were being introduced at this point were hard to object to).

But the plaintiffs' new tactic had found its mark. What's more, Ms. Roberts had let the interruptions get under her skin. She responded in ways that made her reaction to adversity -- and not her witness' testimony - become the take-away message of the day.

The Science Guy returns

At the best of times, Mr. Porter is a challenging witness to follow. He begins his answers in an almost inaudible tone, and then allows his voice to fall even further - well beyond the capacity of the courtroom's sound system. But even at full volume and in complete sentences, his ideas would be challenging to follow.

Today, for example, he spoke about seemingly mysterious ways that BAT and Imperial Tobacco measured the multi-syllabic compounds found in tobacco smoke. "Aliphatic aldehydes" anyone?

Despite Ms. Robert's encouragement for the witness to "break it down", his explanations failed to meet the layman test. (Mr. Perrins, the historian who testified last week, did a much better job of explaining scientific concepts).

The scientific details might have been poorly understood, but the messages Ms. Roberts was trying to convey came through quite clearly:

* Imperial Tobacco allowed its scientists to publish information in external peer-reviewed journals. Provided "it was good research" and there were no concerns about losing proprietary information to competitors, the scientists were free to publish.

* Imperial Tobacco's research was well respected, has been cited by health authorities, and is now the basis of industry or regulatory standards.

* Imperial Tobacco's research was published in the scientific press. There was never any attempt by the company to conceal that tobacco smoke contained toxic chemicals, nor to deny that tobacco smoke was mutagenic.

* That whatever the trial might have heard earlier, Ames tests are important and useful.

 * That Imperial Tobacco has used many tests to measure toxicity or other harmful properties of cigarette smoke (mouse skin painting, Ames, nitromethane fraction index, paramecium, ciliatoxicity, hyperplasia, protozoon, DNA synthesis, invitro mitronucleus, neutral red uptake assay, etc.)

* "Project Day" was a sincere scientific effort by Imperial Tobacco to find a less harmful cigarette. It was not, as the plaintiffs have suggested, a marketing ploy.

Mr. Porter will testify tomorrow and Thursday.

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, 26 August 2013

Day 160: Medical records and other "individual" matters

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

Today's hearing in the Montreal tobacco trials was another round in a well-stirred debate about whether harms should be measured on an individual or collective basis.

From the get-go, the tobacco companies have insisted that an individual assessment of each smokers' circumstances it required, and that without doing so any judgement about the actions of the companies is poorly founded.

Most of the judges who have ruled on the case over the past eight years, including at the 2005 certification of the class, have not let such this argument affect the two lawsuits from successfully moving towards trial.

Justice Riordan has ruled in favour of a collective approach at least three times.

The first time was in 2009, when he turned down the industry's request to contact and question members of the class. The companies had proposed a series of questions (how much each smokers knew about the risks of smoking, whether they had ever tried to quit, whether they had been advised by a physician to quit, etc) but the judge felt that these should be addressed through experts. "The size of the classes makes any other approach impracticable." 

The second time was in 2010, when the companies pushed for medical records. Justice Riordan repeated that such individualized information would be neither pertinent nor relevant.

A year late, in 2011, he was again asked to rule on related issues. Again he said no"What possible use can there be to learning specific medical facts about a few dozen class members, or even the 150 that ITL wishes to call to testify? It is simply not relevant at this stage." 

(The Court of Appeal upheld Justice Riordan's decisions in all three cases - 200920102012).

A short cut to a blind alley?

The door was not shut on members of the class being called to testify, however, although Imperial Tobacco is the only company to say it wishes to do so.

Earlier this year, this company indicated that several dozen would be asked to appear at the trial, but that they would not be scheduled until the end of the companies' defence (i.e. next fall).

This put Justice Riordan in a quandary.

He pointed out that such scheduling would almost certainly delay the end of the trial, and that it was almost certain that the companies would appeal his almost certain rulings to uphold the plaintiffs' almost certain objections to the industry's almost certain questions about the medical and smoking histories that had earlier been ruled out of order.

He has many times expressed concern at the length of this trial, and waiting for the Appeal Court to dispense with objections before these witnesses could be recalled would postpone his judgement by many months.

Before the summer break, Justice Riordan asked both teams to cooperate so as to give him the opportunity to rule this fall and to allow the appeal process run its course well before any Quebec smokers were called to the court.

It seemed like this process was on track, but today Imperial Tobacco showed today that it was not willing to cooperate fully.

The company, as planned, issued a test-case subpoena (which has not made public), and the plaintiffs responded with a motion to quash it (also not made public). But the fly in the ointment was revealed this morning when Suzanne Coté announced that she was not willing to discuss any of the questions they might wish to put to smokers during this testimony or to facilitate a ruling on them. (She referred to the 13 questions, appended below, that had also been previously ruled against).

Ms. Côté played her hand as if she held the trump card. If these other issues were discussed, she said, then she would withdraw her subpoena - and opportunity for any early rulings would be lost.

If Justice Riordan felt snookered by this move he did not show it.  But the result was a much reduced debate which took place this morning. In well under 2 hours the two sides completed their arguments on whether the subpoenas for witnesses and medical records should be allowed.

André Lespérance pointed out that the issue had already been decided, and that it was a "chose jugée." "Her subpoena is for the same things from the same members and for the same goals.... The question has already gone to the Court of Appeal".  

He reminded Justice Riordan that his 2009 ruling determined that individual issues should only be addressed after the final judgement, and that an alternative path had been established for this information to be presented on a collective basis. (Justice Riordan has allowed Imperial Tobacco to conduct a survey of Quebec smokers and submit it as evidence. Imperial Tobacco has been quite coy about it when the question has been raised -- is still missing in action).

In arguing that her subpoena should be permitted, Suzanne Coté said that much had changed since the earlier decisions, which were all made before the trial began. The rulings had acknowledged that circumstances could change, she pointed out -- Judge Wagner (then with the Court of Appeal) had qualified that his decision was only "at this time" and Justice Riordan had acknowledged that it was "unless the court considers such information to be useful to the adjudication at trial" that the medical records were off-limits.

Justice Riordan did not say when he would rule -- or what would happen with respect to the 13 questions.

(Post Script:  The ruling was rendered on September 13, 2013. Justice Riordan ruled that the medical records were not pertinent to the trial and quashed the subpoena.)

Stop the presses!

Also discussed today were the notices that will be published in Quebec newspapers to inform the public of changes to the class definitions. (See Justice Riordan's ruling of July 3).

Simon Potter (for Rothmans, Benson and Hedges) continued to express his disagreement with Justice Riordan's decision to place additional qualifications on who could be considered an injured smoker in either of the two class actions. 

Justice Riordan has previously commented on the irony of Mr. Potter's negative reaction, given that he was the one who sparked the reconsideration and that the companies stand to gain in that the re-working reduces the number of Quebecers who can make such claims.

As if to rub the irony in, the judge assigned to the companies the costs of inserting notices in major dailies in Montreal and Quebec City. Simon Potter seemed to resist the comfort offered when he was stuck with the bill that the companies would be able to claim the costs if they won the case.

(Is Mr. Potter hoping to bankrupt the plaintiffs? "It will come back if there were an award for costs – but the court might want to ask itself what would happen if there were an award for costs ..."  )

Not without reservation

The plaintiffs got a hard lesson in give-and-take this morning during a review of the "reserve" status that had been imposed on the documents they introduced during last week's cross-examination of the defendants' expert historian, Robert Perrins.  

It turns out that they were mistaken to think that the latitude they gave the tobacco companies would be reciprocated. The wide scope of documents permitted when André Castonguay, Marc Lalonde and Denis Choinière testified would be narrowed when it came to documents they wantesd introduced through Mr. Perrins.

"Mr. Perrins was not the appropriate witness," said Catherine McKenzie (who works for JTI-Macdonald when she is not writing novels). Such a practice would be "opening the barn door to production through experts." 

Justice Riordan sided with the defendants. The fact that plaintiffs had blinked didn't mean that the industry's lawyers had to, he pointed out. He suggested that the documents could be introduced through other witnesses or by using the "Article 2870" mechanism. 

The thirteen themes for questions identified by Imperial Tobacco for individual class members
a. Whether "there was a lack of sufficient indications as to the risks and dangers it involves or as to safety precautions" and whether the class members ''knew or could have known" of the risks associated with smoking;
b. The class members' awareness of the risks associated with smoking and the difficulty of quitting;
c. The class members' knowledge of the policies adopted by the Defendants; 
d. The class members' knowledge of any public statements made by the Defendants and whether those statements had any impact on their behavior;
e. The class members' knowledge of the marketing strategies and the advertising made by the Defendants, and whether those strategies and advertising had any impact on their behavior;
f. The class members' knowledge of any conspiracy on the part of the Defendants to withhold information;
g. With respect to collective recovery, the prejudice suffered, or lack thereof, by each class member;
h. When the class members starting smoking;
i. What type of cigarette they smoke (or smoked) and how many per day;
j Whether the class members ever attempted to quit smoking and whether they were successful in doing so;
k. When, if ever, the class members became aware that they were addicted,'
i. Whether the class members were ever advised by medical professionals of the risks associated with smoking or the necessity of quitting smoking; and 
m. The reasons that led the class members to start smoking.
Tomorrow Imperial Tobacco will call the first of several former employees as a fact witness. Mr. Andrew Porter is expected to testify for the rest of the week.

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, 21 August 2013

Day 159: Filling in some missing pieces

The moments in this trial that are the most fun to watch are the cross examinations of expert witnesses, when the opposing legal teams can use the element of surprise and a wider latitude in questions to try to shape this professional evidence to their favour.

There were moments earlier in this trial when these cross examinations resembled a legal blood sport, especially when they were used to try to discredit the scholarship or integrity of the experts. On other occasions, as when Suzanne Côté cross-examined André Castonguay, the cross-examination has been used as a way to put contradictory documents on the record and to encourage the witness to back-pedal on his conclusions. (All but one have been men).

It was the latter approach that was taken today by Philippe Trudel during his cross-examination of Robert John Perrins, the Acadia University professor who was hired by Japan Tobacco to review federal government documents and produce a story about Ottawa's response to tobacco use and its consequences.

And, yes, it was fun to watch.

A close fit

Most of the 1,600-plus footnotes in Robert Perrins' long report refer to documents that are tagged "AG", which is to say they came from the production of  records given to the industry by the federal government during an earlier period before the industry lost its bid to keep the government as a third party to the trial.

If Ottawa produces anything, it is paper, and Mr. Perrins would have had many hundreds of thousands of documents to choose from in writing his report.

But from all these possible records, the ones he selected gave a version of events that is strikingly similar to the story line of JTI-Macdonald's actions in warranty against the government. This high-beam spotlight on the "less hazardous cigarette" program of Agriculture Canada casts the wide range of other efforts of the government in shadow.

(The action in warranty filings in the Blais and Létourneau are available to compare with Mr. Perrins'  three part report - Exhibit 4034640347 and 40348).

This research outcome is not surprising if one considers Mr. Perrin's willingness to have documents selected for him by the lawyers. "I have also asked Counsel for JTIM to provide me with any documents from the Attorney General discovery that are directly responsive to my mandate,"  he reports in his methodology.

Some important missing pieces

A theme underlying the questions put to Mr. Perrins today involved the information he left out of his report, especially records that were readily available to him that could have easily been factored into his conclusions.

Mr. Trudel pressed Mr. Perrins to explain why it was that he had spent so much time on its initial hopes to find a less hazardous way of smoking, and had given scant attention to events in the decades after the program was abandoned by Health Canada. And why had he not made reference to the repudiation of this strategy, or the conclusions of the experts convened by the U.S. National Cancer Institute and by Canada's health minister that a key factor in this decision should be the actions of the industry in thwarting this approach and withholding knowledge about its failures.

In responding to these questions, Mr. Perrins' strategy seemed to be to say little about the content of any new material provided to him, but rather to defend his choice of research focus. "Really the focus of my investigation was the development of the product - not so much the end point." 

Although Mr. Perrins' report elaborated on the goals and thinking behind the less hazardous smoking approach, he had not reported whether those goals had been achieved. Mr. Trudel invited him to acknowledge that the program had not been successful on its own terms. Mr. Perrins  countered that Agriculture Canada was pleased that the breeds of tobacco they had developed were being used in the market, but agreed he could not identify any documents which suggested that any health goals had been met.

Mr. Perrins' report suggested that the federal government's plan had been a well considered and deliberative effort. Mr. Trudel wanted to know if he would have concluded differently had his clients shared their own scientists' opinion at the time?

He showed the witness a blistering memo sent by JTI/RJR-Macdonald's head of science (Derick Crawford) to his boss. This report denounced the less hazardous cigarette project at length - and in colourful terms. Mr. Crawford said the government was suffering from "illusions of grandeur" and was doomed to fail. "Their whole philosophy is riddled with holes, their knowledge is extremely limited, their findings to-date are minimal." (Exhibit 1564R)

This was only one of several documents shown to Mr. Perrins that made the historian's description of events sound a little naive. He was not the only one who might be considered gullible -  Mr. Trudel produced several instances of the government being played for fools by the industry.
* Asked to review designs for a proposed study on compensation that would be contracted out to the independent laboratory, Labstat, Philip Morris/RBH scientists identified methodological flaws in the approach. They knew that these could be fixed, but decided not to share their opinion, as it would not serve their interests. ("Any improvements we might suggest could only provide him with better data. Because of the downside for the industry involved, it was agreed that we would not make any major recommendations in this area.") (Exhibit 1567r)
* Imperial Tobacco obtained samples of new breeds of tobacco being developed by Agriculture Canada's and put these through an advanced series to test their "biological activity" (cancer-causing properties). They never even told the government that the research was being done, or that they had developed such a test. "The test has not been disclosed outside the group." (Exhibit 166)
* The CTMC  adopted a strategy of procrastinating in responding to requests from government for tar reduction or other matters for as long as they thought they could do so without provoking a regulatory response (Exhibit  1566r). When they did make a concession, it was part of a strategy to "throw the government a bone" with small concessions and keep regulations at bay. (Exhibit 1499.1r)
But even after a run of examples of the industry thwarting government efforts, Mr. Perrins would not admit that his approach produced "an imperfect vision."  The closest he would come was to say "It is telling part of the story."

Nonetheless, as the day progressed he increasingly nodded along in acceptance of the new facts being presented to him.

Whose ideas? Who's in control?

Mr. Perrins' report leaves the impression that it was the government and not the companies who were in the driver's seat when it came to determining the tar and nicotine content of Canadian cigarettes. He suggests that the idea of low-tar cigarettes came from government, and that it was the government's efforts that had increased nicotine levels in Canadian tobacco over time.

Prompted by Mr. Trudel's questions, the historian today agreed to facts that put such conclusions in doubt. He acknowledged that the tobacco companies had launched low-tar cigarettes long before the federal government had contemplated a strategy to encourage their use, and that the amount of nicotine available in a cigarette is controlled by the way the cigarette is manufactured.

His conclusions about Agriculture Canada's development of higher nicotine tobacco breeds also buckled after Philippe Trudel gave a closer inspection to the document Mr. Perrins cited when making this conclusion. To the contrary, this internal report from Agriculture Canada concluded that nicotine levels were established by the choice of which leaves from the tobacco plant were used in cigarette manufacture, and that new tobacco varieties had not played a part. "Plant breeding and the resultant varieties registered by AAFC have not resulted in a significant increase in nicotine content in the Canadian crop." (Exhibit 40348.33)

Is outliers really the best term to describe the companies?

Historians who have testified at this trial for the tobacco companies have all stressed that "common knowledge" or "consensus" about the harmfulness of tobacco has been in place since at least the late 1960s.

Mr. Trudel wanted the witness to give an opinion about what this said about scientists or companies who denied this relationship after this consensus had been reached. To use Mr. Perrins' terms, were they 'meaningful dissenters' or merely 'outliers'.

Mr. Trudel showed the witness evidence that within BAT at least, the scientists had acknowledged the scientific consensus about "cause and effect" as early as 1958 (Exhibit 1398). Yet five years later, its Canadian company was part of an agreement to tell the Lamarsh committee that the issue was "not proven." And the president of its Canadian company was pushing for any materials the government sent to schools to mention that causality was unproven. (Exhibit 1563 and 1563.1r)

Mr. Perrins looked somewhat uncomfortable when shown documents filed in this court by Japan Tobacco in which the company said as recently as 5 years ago that epidemiology and "such statistical studies cannot be used to determine the cause(s) of, or the contribution of a risk factor to" lung cancer and other diseases.

"I agree they [the companies] were outliers" Mr. Perrins admitted.

(When the class actions were certified, the evidentiary questions laid down for this trial included whether the companies knew about the dangers of tobacco products, whether they had a policy of not disclosing the risks, and whether they conspired to maintain a common front to prevent smokers from being informed.)

Duelling historians

Not surprisingly, the plaintiffs picked up the gauntlet that had been thrown down earlier this week when Guy Pratte had invited his witness to respond to the criticisms levelled at him by Robert Proctor.

Mr. Proctor had identified Mr. Perrins' reference to the refusal of the American Medical Association to endorse the Surgeon General's report as an example of Mr. Perrins' failure to grasp the importance of the power of the tobacco companies. He thought that Mr. Perrins should have noted that "the tobacco  industry had already struck a deal by this time with the AMA, by which the nation's foremost professional medical association would remain silent on tobacco in exchange for the cigarette industry's support in opposing Medicaid and Medicare." (Exhibit 1238)

On Monday, Mr. Perrins rejected this criticism. He said he had known about the payment to the AMA all along, but that he felt the allegations that there was a "tit for tat" agreement with the companies were unfounded. His historical opinion was different because "I haven't see any documentation to prove that that's what took place."  

His alternative explanation for the AMA remaining outside the consensus was because its rank and file member doctors were having trouble "getting their head around" the notion of epidemiological proof and were lagging behind the "paradigm shift."

Had the industry bought the AMA, or were the doctors merely behind the times? Robert Proctor and Robert Perrins opinions were clearly pitted against each other.

Bruce Johnston took over the cross examination, and for the last hour of the day we watched a showdown between Mr. Perrins' view and the records that other historians have used to conclude there was a deal reached in the 1960s between big tobacco and big medicine that influenced what the AMA said about tobacco.

Mr. Perrins sounded ready for the fight. "After I saw Robert Proctor's report I took the criticism seriously and I read the section in Allan Brandt's book again."

But he had not checked the footnotes to Mr. Brandt's conclusions, even though this would have been remarkably easy to do as they provided hyperlinks to industry records of a meeting held with the AMA.

While the rest of the room sat quietly observing, Mr. Perrins took a few minutes to read a short report in which the AMA was said to see the funding arrangement with the industry as "a great liability," but nonetheless wanted to continue it, and urgently needed the support of Congressmen from tobacco growing areas.

It was apparently not enough to convince this witness that he had misinterpreted events.

So Mr. Johnston upped the ante. Like a magician pulling a rabbit from a hat, he showed documents that were adjacent to the meeting notes, and which showed the industry directing the AMA on language about causality to be included in a 1968 press release. (Exhibit 1569)

Still not enough. Mr. Perrins would not even admit that the language of the press release would be interpreted as denying causality."It's a mixed bag," he said.

Bruce Johnston reached into his hat for another rabbit. He showed Mr. Perrins that the AMA press release had been duly amended (Exhibit 1569.1r). And when the story was reported in the Montreal Gazette, there was no "mixed bag" or ambiguity. The headline read: "Group admits cigaret harm still unproved."

Mr. Perrins did not concede.

But the alternative explanations he offered sounded weak to these ears. (He suggested that perhaps the physicians in question researched cellular level effects where there was still much that was unknown).

He seemed determined to maintain the distance between his views and those of historians Robert Proctor, Allan Brandt, Richard Kluger (and perhaps even David Flaherty), who made the link between the AMA receiving tobacco industry funds and it withholding agreement that smoking caused cancer.

Finally, Bruce Johnston put it to him that "this could be used to support the view that the case against the industry is not proven."  On this point Mr Perrins agreed that "I could see that it was."

If it's good enough for Margaret Macmillan... 

The last question went to Justice Riordan, who gave Mr. Perrins another opportunity to address the absence of an analysis of industry actions in his report.

"This morning Mr. Trudel asked how you could understand what the government did without looking at the roadblocks [of industry opposition]. ...Do you feel that the fact that you did not look at the roadblocks affects the completeness of your report and the confidence I should put in its conclusions?"

Mr. Perrins repeated his I-did-what-I-did explanation. "The way I approached the topic twas to look at what the government actually knew and what it did."

But for the first time he pointed to similar approaches taken by other historians. He cited the research by a prominent Canadian historian who wrote about the historic rapprochement between the USA and China under Nixon. "Margaret Macmillan does not look at Chinese documents."

He agreed his was not the "entire story of smoking and health in Canada," - and drew a laugh by pointing to the length of the report. "I think people would start shooting me if I passed [more paper] across the desk.  I gave you part of the story and ... it is the best study of what the government did in this period."

Justice Riordan gave every indication of liking this witness. "Thank you very much," he said to Mr. Perrins at the close of the day. "I am very impressed with your recall and the clarity of your answers. I found it helpful and thank you for your assistance."

The trial will not sit on Thursday, but resumes on Monday with legal arguments related to the scope of questions that can be put to the smokers who are members of the class actions who will be asked to testify. Later next week, Andrew Porter will return to testify on behalf of his former employer, Imperial Tobacco. 

Tuesday, 20 August 2013

Day 158: The federal government in the rear view mirror.

There was the steady hum of work in Courtroom 1709 of Montreal's Palais de Justice today as Japan Tobacco's defence team finished leading their expert historian, Professor Robert John Perrins, through the presentation of his report.

The lawyer leading JTI-Macdonald's defence, Guy Pratte, demonstrated his ability to elicit a steady stream of key phrases from his witness while his nimble-fingered assistants highlighted related passages on the overhead screens. I lost count of the actual number of documents that were presented (scores of them - of which only a few are identified below!), but these are only a fraction of the hundreds which were put on the trial record this week. (They are, alas, not yet available on the plaintiffs' database, but when they are they can be located as extensions to the exhibit numbers attached to Mr. Perrins three-part report, i.e. 40346, 40347 and 40348).

Mr. Pratte's efficiency was aided by the plaintiffs' decision to sit on their hands throughout Mr. Perrins' testimony. They raised no objections and made no comments, no matter that Mr. Pratte's questions veered into the once-disputed areas of irrelevance, leading-ness, or beyond Mr. Perrins expertise.

Justice Riordan seemed quite pleased with the day, listening with apparent interest and taking steady notes.

The federal role

The scope of Mr. Perrins report is captured by the highlights he presented over the past two days. Today he shared his conclusions that:
* The main goal of the federal government was to encourage smokers to quit, and to discourage non-smokers from starting
* Despite this, the government acknowledged that some smokers could not or would not quit, and that the health of these people would benefit if lower-tar / less hazardous cigarettes were on the market.
* The encouraged smokers to choose cigarettes with lower tar levels by measuring the tar content of the smoke from cigarette brands and making public lists that ranked cigarettes according to their apparent harmfulness. (Exhibits 40256, 20007.7)
* The government was aware that if smokers who switched to lower tar brands "compensated" by smoking more cigarettes or inhaling more deeply that the benefits of these brands might be negated. They alerted smokers to this possibility, but did not believe that compensation was a widespread phenomenon. (Exhibits 20007.8, 40346.325, 40348.1, 40348.244,, 40347.95, 40347.132)
*The government grew to believe that that people "smoked for nicotine, but died from tar." While they aimed to reduce the levels of both nicotine and tar in Canadian cigarettes, they were more concerned with lower tar levels and accepted that a minimum level of nicotine might be necessary to make these cigarettes acceptable to smokers. (Exhibit 40346.272, 40347.209. 40348.28)
* The government researched ways to reduce the tar levels of cigarettes, promoted these cigarettes to smokers, put pressure on manufacturers to reduce tar levels, and developed new strains of tobacco with lower tar-nicotine ratios suitable for use by Canadian tobacco farmers. (Exhibits 40239, 40347.22. 40346.273. 40348.19)

 *The government was supported in these efforts by the public health and medical community, by parliamentarians and by researchers in the field. (Exhibits 40346.202, 40346.69)
 * The tobacco industry participated in the search for less hazardous tobacco leaf,  but the government was reluctant to enter into too close a partnership and wanted to retain leadership of the strategy. (Exhibit 40333. 40347.88)
 * The government was proud of its accomplishments in developing new strains of tobacco. (Exhibit 40348.100)
*The habit-forming, dependence-creating or addictive qualities of tobacco were recognized by the federal government from the mid 1960s, although the term "addiction" to describe the phenomenon was only used beginning in 1989. (Exhibits 40348.19, 40288, 40347.374, 212)
*The government policy of promoting low-tar cigarettes was not abandoned until after 1999. 

Less hazardous smoking program logic model
These conclusions were ornamented with quotes from a seemingly endless flow of government records.

Caution: objects may be further than they appear

From an academic perspective, Mr. Perrins' historical narrative is an unusual contribution to public health history, benefiting as it has from unique access to previously-secret government records and from an unusually high level of financial support. (From his testimony yesterday about the hours he worked and his billing rate, I estimate that the budget for this effort was high by historical research standards at around a half million dollars).

But despite its length, Mr. Perrins' version of events seemed like an incomplete story. Some chapters of the government's response were told in great detail, but others were virtually ignored. There is no mention, for example, of efforts by departmental officials to obtain policy support for a more ambitious regulatory approach, the development of taxation as a public health tool, or the advancement of global innovations like front-of-the pack cigarette warnings. Nor is there any recognition of the internal contradictions, the inter-departmental rivalries or the policy confusion to which such complex issues are often vulnerable.

In the connect-the-dots nature of this trial, this witness laid down a sea of dots on a few parts of the picture, while leaving vast deserts on others.

Other omissions in Mr. Perrins' research were noted by Robert Proctor, the historian hired by the plaintiffs to critique the tobacco industry's historical reports. Mr. Proctor said that Mr. Perrins' refusal to consider the archives of the tobacco companies resulted in "a story of David without Goliath."  (Exhibit 1238)

Certainly Mr. Perrins' characterization of events felt different than that provided to the court earlier this summer by Denis Choinière, the quasi-official witness from Health Canada. Mr. Choinière contextualized many of the same events as being activities undertaken by public servants who lack authority to adopt more effective measures. Rather than the happy collaboration between Health Canada and Agriculture Canada presented by Mr. Perrins, Mr. Choinière said he had found "no impact" of health concerns on Agriculture Canada's research program.

Mr. Perrins may not have considered that the false hopes of the government lead it down the blind alley of a "less hazardous cigarette program," or that these were merely activities which substituted for action until the political climate allowed the health ministry and the public health community to plan for legislative change. Although he acknowledged that this strategy was abandoned, he drew no inference that the government may have ever viewed it as a wrong policy turn.

The cross examination of Mr. Perrins will take place tomorrow. 

Monday, 19 August 2013

Day 157: Yet another history

After an eight-week break, the Montreal tobacco trial resumed on a beautiful can-this-really-be-the-end-of-summer morning. Justice Riordan greeted the room with a warm "Bonjour! Welcome back," but Imperial Tobacco was even more enthusiastic about la rentrée.

Any doubts you might have harboured that the company was not having a good time in the trial could be dispelled by its assurance in this morning's press release that it was looking forward to the trial and to "shedding light on the parts of the story that have thus far been left out." The company is confident that as a result of the trial "a more fair and balanced view of the industry will emerge."

For the most part, however, today day felt much like any other trial day. In a windowless room occupied by lawyers in a formal court dress that makes no concession to the centuries let alone the seasons, the summer break soon fell from view.

And as they entered the 17th day of their defense, the companies picked up where they had left off - setting the scene by putting their historical lens to events.

Professor Robert Perrins

Prof. Perrins
(teaching in China)
Today's witness - Professor Robert John Perrins - is the third professional historian to testify for the tobacco companies. Unlike the first two (David Flaherty and Jacques Lacoursière), this Dean of the Faculty of Arts at Acadia University did not address whether there was "common knowledge" among smokers and the public about the fact that tobacco products caused fatal diseases.

Instead Mr. Perrins was asked by JTI-Macdonald to look at the measures "government(s), as well as the public health and medical communities [took] in assessing and publishing information on the health risks associated with smoking, as well as the actions taken by them in relation to such risks, principally over the course of the latter half of the twentieth century."

One reason that JTI may have asked Mr. Perrins to focus on the government's role is that he was brought into the case at a time when the companies were preparing to argue that it was Ottawa that should ultimately be held responsible for wrongdoings related to tobacco sales.

(In 2009, JTI-Macdonald, like the other companies, had an "action in warranty" filed against the Crown in both the Blais and the Létourneau cases now being heard. It was not until November last year that this claim was struck down by the Quebec Court of Appeal.)

A quick learner

Like the other historians engaged by the tobacco companies during this trial, Mr. Perrins came to the task unencumbered by any previous experience in tobacco history or knowledge of tobacco issues. His twenty-year university career has focused (as shown on his CV) on the history of and infectious disease control in pre-revolutionary China.

Nonetheless, Mr. Perrins appears to have taken to this new research focus with gusto!

He told the court today that in the three year period he worked on the report he spent about 3,000 hours researching and writing his opinion. These efforts were in addition to the responsibilities associated with his regular work! As well as being Dean of Arts, Mr. Perrins has appointments in no fewer than four university departments (the departments of history and politics at Acadia University, the department of History at St. Mary's University and the department of Chinese studies at Beijing Normal University).

His report that was filed today came in three parts - Exhibits 4034640347 and 40348. All together it is a heft 750 pages in length, and includes more than 1,600 footnotes.

Mr. Perrins based his analysis on material he gathered from 6 archives in 3 countries (Canada, the UK and the USA). In addition to the work of medical and other historians on the topic,, he personally retrieved more than 10,000 pages of archival records, photographing and filing the documents in picture format. He also searched among the 700,000 records that were "disclosed" to the industry lawyers by the federal government when it was still caught up in the trial. Altogether, he gathered so many records that the bibliography to his report is about 150 pages long!. And he did it single handed - without any help from research assistants! And without any word search capacity on his archival material!

This may seem like an incredible amount of effort for one scholar to accomplish while moonlighting from his regular teaching position.

Incredible yes. And perhaps not entirely believed. The tone of the questions put to Mr. Perrins from plaintiff lawyer Philippe Trudel during the 'voir dire' process suggested that there at least some in the room that found the apparent productivity of this witness a tad suspicious.

Nonetheless, Mr. Trudel gave no formal objection to Mr. Perrins' role and before the morning break the historian was recognized by Justice Riordan as - if I got it right -  "an expert in history, in the history of medicine, and in the history of smoking and health in Canada as it relates to the federal government's, the public health community's and the public health response." 

(The plaintiffs raised no objections during the day, although Mr. Trudel signalled that he felt a case could be made for sections of the report to be struck out.)

In case you didn't get it the first time

During the rest of the day Guy Pratte, who leads JTI-Macdonald's defence, invited Mr. Perrins to elaborate on the sections of his report that lead to his conclusions that:
• During the late 1940s and 1950s there was a growing concern among governments as well as within the medical and public health communities regarding the rising number of diagnosed lung cancer deaths, as well as the association between the rise of this disease and cigarette smoking.
• While early studies on smoking-related health risks were conducted and published prior to the 1940s, the post-war era witnessed a tremendous growth in the amount of research on this topic. This research was conducted using a variety of approaches, including those associated with the fields of clinical, experimental, and population-based (epidemiological) medicine.
• A consensus ...that cigarette smoking was a causal factor in the development of lung cancer was reached in Canada between the November 1963 National Conference on Smoking and Health and the 1969 report of the Isabelle Committee—two important events in the story of smoking and health in Canada.
• One of the Federal Government's public health strategies from the 1960s through to the 1990s was that people who smoked cigarettes should quit, but that if they continued smoking they should smoke lower-tar cigarettes.
Once again the court heard of the events of the 1940s, 1950s and 1960s -- the pioneering research of Adler, Doll and Hill, Ochsner, Wynder and others. Once again the court was told of the importance of the mid-1960s in marginalizing any scientific dissent to the idea that smoking caused lung cancer or laryngeal cancer, and how by 1970 there was a consensus about the harms of tobacco use. Once again, we heard that reducing tar levels of cigarettes was widely endorsed as a way to reduce the harmfulness of smoking, and that the federal government spear-headed such efforts.

Mr. Perrins talked about the decisions of the federal ministry of health to focus on efforts to educate the public about the harms of smokers, to encourage smokers to quit and to discourage people from starting to smoke. He described it as "the beginning of a federal program of action." But he made no link between the actions of the companies and the government's decision to prefer a programmatic response over a regulatory one.

The missing pieces 

In Mr. Perrins' version of events today, the tobacco companies appear exogenous to public health history. He made no suggestion that they could have influenced scientific or popular knowledge, and he rejected the suggestions of others that this might have been the case.

Such tunnel-vision was heavily criticized earlier in the trial by Robert Proctor (see Exhibit 1238). Before his opponent could do the same, Mr. Pratte gave his witness the opportunity to respond to criticisms that industry behaviour was an important context in which to view tobacco related events.

Although he had earlier stressed the importance of "not taking anything for granted" and the need "to identify bias," Mr. Perrins responded to Mr. Proctor's criticisms by stating firmly that he saw no value in going beyond the governmental records.

Despite reading criticisms made of others who had taken the same path, Mr. Perrins said he had made a "conscious decision" to focus only on secondary sources and government archives. He confirmed that this decision was his alone, and in no way influenced by any lawyers.

Later in the day, he specifically rejected the conclusions of other medical historians that the industry played a role in slowing the acceptance of causality by the American Medical Association. Although other medical historians have identified its research partnership with tobacco companies as a factor which influenced the AMA being out of step with history, Mr. Perrins does not.

He said that on the basis of the records he reviewed, he thought it was much more likely that the reason for the delay was the scientific conservatism of the membership of the AMA. The problem was that these doctors were not yet willing to trust epidemiological conclusions.

The testimony of Mr. Perrins is scheduled to continue throughout the week.