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.