Deborah Glendinning pointed the judge to her destination. "The theory we have heard [from the plaintiffs] is that low tar cigarettes do not provide benefit because smokers compensate and as a result do not get a reduced delivery."
"All of the evidence is to the contrary. We went through the studies and the evidence that low tar produces a benefit to the population. All of this evidence is that people do not compensate in ways that negate the benefits of low-tar."
Simon Potter (who in recent weeks has rarely attended the trial) added his own two-bits' worth. "It is one thing for the plaintiffs to say you hid all this information and the companies to reply that the information was shared and that such harm was not done. It is another thing to say there was a consequential damage. On that point is is also necessary to answer [that no damage was incurred]."
And so it was that BAT's scientific and litigation consultant, Michael Dixon, spent the morning burnishing his version of the nature of smokers' compensation.
Picking up from the day before, he cited research that had been conducted by BAT and other tobacco companies, or by scientists they funded, which concluded:
* smokers only partially compensate when they change types of cigarettes (Exhibits 40346.211B, 20280, 20281.1)
* they do so by increasing the "puff volume" of their inhalations (Exhibit 20282, 20276)
* they do not do so by increasing the number of cigarettes they buy
* they do not do so by smoking more of each cigarette (Exhibit 20281.2, 20281.3)
* they do not do so as a result of the way the cigarette is designed (i.e. filter ventilation) (Exhibit 20285, 20287, 20290, 20288)
* smokers compensation is driven by the smokers' sensory responses to the inhalation of tar and not by any requirements for nicotine (Exhibit 20292, 20293, 20294)
He summed it up shortly before lunch. "People [who smoke reduced-yield products] are getting a reduced exposure. .. That reduction in exposure is likely to be reflected in some reduction in disease risk. ... "There has been a benefit in population terms in reduced exposure and potentially in reduced risk as well."
(Smokers apparently do not share the view that low-tar cigarettes are less harmful. Mr. Dixon cited Health Canada funded surveys showing "the vast majority" of Canadian smokers do not think reduced-yield products are less harmful and that these cigarettes are selected because of the "light taste and less irritation in the throat region.")
The proof of the proof is in the judgement
Despite the reluctance he had expressed earlier in the week about hearing more evidence on compensation, Justice Riordan appeared to be quite interested in Mr. Dixon's testimony and recited some of the testimony in a tone that suggested he had no difficulty accepting it.
If so, he will have taken a very different view than at least one other judge who has heard this witness on the same points. In her 2006 Final Opinion, Justice Gladys Kessler sharply rejected Mr. Dixon's views on compensation:
To rebut the testimony of Drs. Benowitz, Burns, Henningfield, and Farone regardingsmoker compensation, Defendants relied upon tobacco industry scientist Michael Dixon, Ph.D., an employee of Defendant BATCo, to testify as an expert in "human smoking behavior." Dr. Dixon testified that compensation is not complete because smokers compensate for tar not nicotine. Dr. Dixon is neither a medical doctor nor an epidemiologist; he holds a Ph.D. in respiratory physiology. Dr. Dixon further admitted that nowhere in his written direct examination did he even mention the subject of nicotine addiction. He has not published any articles on the subject of nicotine addiction, and there is nothing in the record to suggest that he has published a single peer-reviewed publication on any subject. Without any expertise in nicotine addiction, Dr. Dixon's testimony as to whether nicotine addiction drives smokers to compensate is not credible, especially when compared to the totally contrary evidence of government experts Benowitz, Burns, and Henningfield, each of whom has enormous expertise in the fields of nicotine addiction and smoking and health, have written numerous peer reviewed articles on these subjects, and have participated in the rigorous process of writing different Surgeon General’s Reports on smoking and health.The cross examination: Where to start!?
Plaintiff lawyer Pierre Boivin returned after lunch to begin a cross examination that will continue into tomorrow.
Much of his focus this afternoon was in demonstrating that - despite Ms. Glendinning's assurances that "all of the evidence" supported the benefits of low tar - most health authorities were of the opposite view.
By showing that Mr. Dixon had neglected to include any recent independent scientific findings on this subject, he likely aimed to cast doubt on the integrity of the expert report.
We seem to have crossed the time barrier
During the first year of this trial, a curtain had been firmly drawn over events that occurred after 1998, which is when the Blais and Létourneau claims were filed.
Any attempts by the plaintiffs to introduce more recent ideas or evidence were successfully objected to by the industry lawyers on the basis that these were outside "the class period."
The trial appears to have moved on. Over the past few weeks, industry witnesses like Mr. Dixon have cited more contemporary reports which allows the plaintiffs to similarly do so.
The result is that Justice Riordan is finally being allowed to get updated on important events in the past 15 years - when it comes to low-tar cigarettes, a lot has happened since 1998. Mr. Dixon's arguments might have been more persuasive had he stayed in the 20th century!
Not all of the evidence. Not even most of the evidence.
'All of this evidence is that people do not compensate in ways that negate the benefits of low-tar," Ms. Glendinning said this morning.
Pierre Boivin set about to disprove this view, showing the judge that leading health authorities have concluded the opposite.
Mr. Dixon's frequent repetitions that he "did not agree" with the consensus view of important research bodies made him look more like a lonely voice than a leading expert.
Misrepresenting the view of the Royal College of Physicians
Mr. Dixon had cited in his report the 1971 view of the UK Royal College of Physicians that low-tar cigarettes might be a good idea.
But he had neglected to mention that the College had changed their view in 2000, and had renounced the benefits of low yield cigarettes as smokers "derive false health reassurance from them, as may have been intended by tobacco companies." ("Nicotine Addiction in Britain" - Exhibit 1586).
In his answer to Mr. Boivin's question about why his "expert" report did not mention the change of position Mr. Dixon referred back to Monograph 13 (Exhibit 40346.221), and the "sea change" that it had created. "Up to that point, all the data were supporting low-tar," he said. Apparently he liked the old sea, and said he had cited the 30-year old position of the College as his scientific reference because he felt it was the one that was still scientifically valid. "My expert opinion is that the conclusions of Monograph 13 are not supported by the science."
(Neither Mr. Boivin or Mr. Dixon seemed to notice that Nicotine Addiction in Britain was published the year BEFORE Monograph 13.)
Ignoring other landmarks
In the spring of 2000, Canadian Health Minister, Alan Rock, established an expert advisory body to guide him on the regulation of light and mild. In its report made public early in the next year, the panel found "There is no convincing evidence of a meaningful health benefit to either individuals nor to the whole population resulting from cigarettes marketed as light or mild." ( Putting an End to Deception, Exhibit TBA.)
Mr. Dixon did not agree with that finding.
The U.S. Surgeon General report from 2010 (Exhibit 601-2010) similarly found that "the evidence indicates that changing cigarette designs over the last five decades, including filtered, low-tar and light variations have not reduced overall disease risk among smokers."
Mr. Dixon did not agree with that finding either.
Mr. Dixon did not agree with that finding either.
In answering Mr. Boivin's questions, Mr. Dixon was less confident of his expertise in concluding the health consequences of cigarette designs than he had been earlier in the day.
Although he had an opinion on low-tar cigarettes, he did not feel qualified to agree or disagree with the Surgeon General's 2010 conclusion that "one-half of all long term smokers, particularly those who began smoking in their adolescence, will eventually die from their use of tobacco."
But he spoke with greater confidence when pointing out the methodological flaws in research papers that came to different conclusions than his own. At one point he generalized his criticism: "The problem I have with a lot of articles in tobacco control .. is that you see a bold statement and then you go back to the sources and they don't support the statement."
Tomorrow, Mr. Boivin will have an opportunity to continue his cross-examination of Mr. Dixon.