Wednesday, 11 September 2013

Day 165: Different questions, same answers

During the first two days of this week, Courtroom 1709 of Montreal's Palais de Justice has been the backdrop for a series of smooth exchanges between retired BAT scientist/manager, Graham Read, and Deborah Glendinning, the lawyer who is leading the defence for that company's Canadian operation in the Montreal tobacco trials.

Today, the plaintiffs had the opportunity to cross-examine Mr. Read. Their questions went over many of the same topics -- what BAT knew about causation and addiction, what it said about these subjects in public, what it did in response to health concerns, and how concerns about litigation influenced decision-making.

Cross-examinations are often a little rough-and-tumble, but the uber-polite tone that was set earlier in the week was maintained today. Mr. Trudel and Mr. Lespérance asked their questions in studiously respectful and gentle tones. (I don't think anyone was deceived by the diplomatic veneer, however!) Ms. Glendinning voiced few objections, which illogically contributed to the impresion that everyone was on their best behaviour.

Mis-matched answers

Mr. Read's answers were the same as they had been earlier in the week - he kept his story straight. Causation was a working hypothesis for BAT scientists for several decades - smoking is addictive but not in the sense of hard drugs - lawyers did not interfere with the work of the scientists - the responsible thing to do is to give smokers who chose to smoke a product with reduced toxins - low tar cigarettes are less harmful.

But these answers were a much less comfortable fit with the plaintiffs questions than they had been with his own lawyer's. Mr. Read often sounded confined by his "message box" and his inability to provide direct answers to clear questions made him sound evasive. (Justice Riordan, who had earlier allowed Mr. Read's vague answers and circumlocutions to go unchecked, forced a reply on a handful of occasions.)

Compare and contrast

Over the day, Mr. Trudel and Mr. Lespérance dipped into a seemingly bottomless supply of BAT documents which were inconsistent with Mr. Read's version of events. They were unsuccessful at getting him to agree with their version of events

Mr. Read said lawyers were not involved in scientific affairs. 
Then why were contentious scientific findings sent to Millbank, where BAT's lawyers were based? (Exhibit 1570) Why were lawyers deciding the response to external research? (Exhibit 107) Contributing to scientific position papers like the position paper Mr. Read contributed to for which "Shook, Hardy and Bacon ... provided most of the references and much of the analysis."(Exhibits 1573, 1573.1, 1573.2, 1573.3)

Mr. Read said BAT's reluctance to admit causation was based on its scientific considerations and not on legal concerns. 
Then why did BAT's head of science, Jim Green, write that the industry's public position on "the association of cigarette smoking and diseases is dominated by legal considerations" and urge his colleagues to see that refusing to do so was viewed as "intransigent and irresponsible"? (Exhibit 29). And why did his Canadian colleague, Bob Gibb, agree that the day when the industry could refute epidemiological conclusions of causation was "long gone." (Exhibit 125)

Mr. Read said BAT did not promote a false controversy about causation.
Then why did it repudiate its former head of research when, post-retirement, he acknowledged causation during a television documentary (Exhibit 31) And why did it continue - well into the 1990s - to distribute media lines across its companies that encouraged doubt that cigarettes caused disease? (Exhibits 976, 242)

Mr. Read said BAT/Imperial never sought to make an elastic cigarette.
Then why were ITL scientists reporting on their progress towards that goal? (Exhibit 393)

BAT's low-tar benefit

Mr. Read stuck to his guns in maintaining that low-tar cigarettes are a benefit to smokers - and maintained this view despite being reminded of a scientific consensus to the contrary. (13th Monograph of the National Cancer Institute).

He invoked the name of Richard Peto, saying that this eminent British scientist agreed with his view. He said the NCI Monograph contained "fundamental errors," including "incorrect calculations" and "incorrect assumptions with intensity."

He referred again to BAT's superior knowledge from butt studies of "how people actually smoke" and repeated that there is a real difference in actual human exposure to cigarettes of different machine deliveries.

Mr. Trudel asked whether there were any published studies which refuted the 13th monograph, either by Richard Peto or others. Mr. Read did not identify any, but suggested this was not because the criticisms were not valid, but that the time for such criticism was over: "There is nothing to comment about."

Hoist with their own petard? Evidence from the BAT web-site

There is a tradition/requirement that lawyers inform the other side about which documents they intend to use during their direct examination of witnesses, but it is a protocol that is routinely ignored. It is a rare day that goes by without complaint about documents that are shared at the last minute.

One of these last-minute documents was introduced by Ms. Glendinning at the outset of her questions for Mr. Read. It was a Memorandum submitted by BAT to a UK Commons committee in 1999, (Exhibit 20230) and was presented as part of an acknowledgement by BAT that "cigarette smoking was a cause of cancer, lung cancer, heart disease and other respiratory diseases" and cigarettes were addictive.

A number of questions were put to Mr. Read about the moment when BAT adopted this new position. Mr. Read was repeatedly vague in his replies, giving neither Ms. Glendinning nor Mr. Trudel a clear answer. When finally pushed by Justice Riordan, he suggested that it might have been in the mid 1990s.

(The question of timing is important to this trial because the class period ends with the filing of the claim in 1998. Moreover the common questions laid down for the trial include  Did the defendants implement a systematic policy of not disclosing such risks and dangers?   Did the defendants trivialise or deny such risks and dangers?)

After a few repetitions of Mr. Read's equivocation, Mr. Trudel revealed that the missing link could be found on the BAT web-site. The moment of change happened in January 2000, when the Select Committee requested clearer answers (Exhibit 1571r).

The 1999 Memorandum had given a qualified response, but in response to a push from the Committee Clerk, BAT provided a clear answer. The committee's subsequent report shows that BAT was ahead of the other companies operating in Britain, who were not yet ready to acknowledge the simple statement "smoking causes cancer."

Some interesting statements

Mr. Read gave an estimate of the number of deaths due to smoking - citing the figure of 100 deaths for every 100,000 smokers each year. He gave no source or details on the methods behind this estimate, which is much lower than those used by public health officials. (WHO gives a much higher estimate of 174 deaths per 100,000 people over 30 years of age, including non-smokers.)

He said that the risks associated with cigarettes were indeed "a matter of concern" for himself and others and that these concerns were the source of the "passion" in the research department to reduce the compounds in cigarettes.

Mr. Trudel asked him what would happen if cigarettes were not sold. "I absolutely agree that the numbers [of deaths] would probably decrease," Mr. Read replied.

Towards the end of the day, André Lespérance turned to the subject of document destruction. Justice Riordan discouraged going over-time, and Mr. Read's testimony was unexpectedly extended into Thursday. Mr. Gaeten Duplessis will also testify.