Wednesday 30 October 2013

Day 177 & 178: The cross-examination of Steve Chapman

It's a very different thing to read a trial transcript than to sit through a day's hearings, as I am discovering as I catch up on last week's proceedings of the Montreal tobacco trials.

For one thing, the tone and timing is entirely absent. It is harder to know, for example, whether there was any irritation behind Justice Riordan's cautions to lawyers, or whether a given 'objection' was uttered with obvious intent to signal an answer.

The written record is full of comments and interruptions that are barely noticeable when watching the 'live' show, but which syncopate the information to the reading eye. It seems even harder to distinguish between a rambling answer and an evasive one.

On the other hand, as I sort through the various topics that were raised during the two-day cross examination of Mr. Steve Chapman (the only in-house witness presented by Rothmans, Benson and Hedges), the flow of the day - so important to the experience of sitting in the room -- seems much less important than the contents of the answers.

For whatever combination, my impression of the cross examination of Steven Chapman is that the most important moment was at the very end of the two days, when Justice Riordan put his own few questions to this witness. 

But dessert must follow main course! That exchange is at the end of this post.

The man who knew too much? Not Mr. Chapman.

For a man chosen to represent facts about the company's actions over more than 5 decades, Mr. Chapman seemed to have a number of holes in knowledge base. ("I can't recall" he said on more than 30 occasions). Even within his own area of expertise within the company -- as scientific advisor, head of regulatory issues and the man in charge of product development -- it was evident that he did not know as much as one might expect of someone whose responsibilities were "to keep management abreast of scientific developments."

It was hard to find any sign of intellectual curiosity from his testimony. Mr. Chapman never read the complete Tobacco Products Control Act, even though he was brought into the company to help fulfill its requirements. *  He rejected the findings of a scientific report on low-tar cigarettes in favour of a "common sense" positions. *  He was not familiar with a scientific report published by a competitor about the industry's joint program to change the curing methods of Canadian grown tobacco. *  He did not know how - or even whether - cigarettes could be designed to produce more free nicotine. *  He did not know the extent to which carbon monoxide can increase the risks of smoking.

I wondered whether it might say something about Philip Morris' global plan that they put a man with no post-graduate qualifications in such an important regulatory post. Certainly it does not help Imperial Tobacco's argument that once information is published in a peer-reviewed journal it can be assumed to be known. If industry officials whose job it is to keep up to date with the information are unaware, how can smokers be expected to know?

One last kick at the can

With three separate companies on trial, the same issues must be proven for each firm. Despite any pressure to move-it-along, Philippe Trudel and Bruce Johnston had only Mr. Chapman, their last RBH witness, to hammer closed any issues they felt needed another whack. Perhaps this is why they kept him on the stand for twice as long as they originally predicted. The cross examination continued from mid morning on Tuesday October 22 to the end of the following day.

The basics: causality and addiction

"I have reviewed all sorts of documents that could be relevant to this case," Mr. Chapman replied when asked to explain how he had prepared for his testimony. Well, 700 documents at least - and those were selected not by him but  "by outside counsel."  He confirmed that he "was prepared" (note the passive voice!) for questions on "smoking and health", "addiction" and "advertising directed at youth." 

This preparation had included discussions with a small number of former workers, particularly Norm Cohen (who testified at the trial last year) and Gary Black (who was scheduled to testify for the company, but was recently removed from their list).

Mr. Chapman did not speak with the former presidents who testified at this trial - Patrick Fennell, John Broen or John Barnett. Perhaps this explains why he provided very different answers to the plaintiff's lawyers questions than those men had done

Smoking is addictive, but nicotine may not be 

Mr. Chapman testified that the company's current position is that "smoking is addictive" and that, while the definition of addiction had changed significantly over the years, the "company has always had the belief that smoking is a behaviour that is difficult to quit for some people; it's inherent in the product." 

On the other hand, he did not know whether the company had a position on the addictiveness of nicotine. His own view was that it was not. "What I know is that people use the Nicorettes and nicotine patches, and they're not addicted to the nicotine derived from those products, and they stop using them."

The company's position on causality?  No way to know.

Mr. Chapman was certain that smoking caused disease."Everything I've ever known in my life, in my own personal life, and everything I've read, suggest that people know that there are risks associated with smoking. It's almost, to me, inconceivable that people don't know." 

Mr. Trudel showed him documents which suggested that there were some in the industry who did not share this view. Among them were an official-looking position paper developed by Rothmans of Pall Mall in 1985 (a year before it merged with Benson & Hedge) which stated bluntly "the industry does not agree that there is a causal relationship between smoking and certain diseases."  (Exhibit 850).

Despite having reviewed this document, Mr. Chapman was unprepared to acknowledge that the words meant what they said. Even after repeated questioning he would not confirm the obvious. "I have no way to know whether it was the position or not."

Duty to warn? Not really .. and certainly not specifically

Mr. Chapman said his company considered it important that smokers understood that smoking was risky and spoke of the "informed decision about whether to smoke or not to smoke."  

But it was not important that smokers received this information from the company. "We had an obligation that consumers understood the risks associated with smoking and, from our perspective, consumers did understand those risks. It didn't obligate us to be the communicators."  (He said that the company monitored public polling reports on knowledge of health risks, but undertook no studies of its own to measure what smokers understood.)

Nor did he think that detailed knowledge about the magnitude of the risk or specific health risks was important for smokers.

"I believe that once people understood that if you smoke you can get cancer and you can die, I think that's... that says it all for the vast majority of people. ....  For example, if you look at all the warnings on the packaging today, I don't think any of that has material information different than the fact that, if you smoke, you can get lung cancer and die." 

This was not an opinion provoked by recent changes to cigarette warnings. Even the very first regulated warnings required in 1989 -  "In my view, they weren't necessary."

Not taking advantage of health concerns -- just meeting consumer need

RBH is the manufacturer of Viscount, one of the first low-tar brands marketed in Canada.

The plaintiffs used Mr. Chapman's presence to reinforce the view that such brands were marketed with implicit and explicit health claims. They drew his attention to marketing studies (Exhibit 989.39 and 989.71), which described smokers' view of this brand  "as part of or as an alternative to cutting down for health reasons"  and the company's view that it was a way "to take advantage of growing  consumer health concerns."

Mr. Chapman had a different framing on his understanding. "We didn't tell smokers that these products were healthier, or that they were risk-free. We made a product available for people who chose to select a product with low tar." 

More chapters in the Kiln conversion story

Mr. Potter had given prominence to RBH's role in the change of tobacco curing methods on Ontario farms that happened a decade ago. All three companies involved in this trial worked together to require that tobacco plants were treated by indirect heating (think radiators) instead of by direct heating (think covered bar-b-que).

Mr. Chapman testified that eliminating the plants' exposure to exhaust gases reduced the level of tobacco specific nitrosamines (TSNAs). TSNAs are thought to be among the most carcinogenic part of tobacco smoke.

The plaintiffs wanted to know if it was only when this program was implemented that the company measured the TSNA levels. The witness explained that they had not done so, because they thought the chemical was inherent in the smoke. Up until then, they "had no knowledge in terms of how to affect the nitrosamine levels in our products" - had they known how, they would have taken action. "We wouldn't want to actually increase the nitrosamine levels."

His discussions with farmers and company officials had convinced him that tobacco had always been cured using the old system. "As far as I know about going back in history, it was always done by direct curing." 

Saving the best for last

In his end-of-day questions, Justice Riordan focused RBH's delay in using the lower-TSNA tobacco produced by the new curing method.


Justice Riordan: So my question is, if you knew that the new type of tobacco was safer, why didn't you start using right away, why did you wait the two years? ...  you had tobacco, indirect-cured tobacco that could have been used, and you chose not to use it until you ran through the inventories of the direct-cured tobacco?
Mr. Chapman: We chose to phase it in, correct.  ...

Justice Riordan: But don't I have to assume that, by your going full blown to indirect-cured tobacco at some point, the company made the decision that this was going to reduce the nitrosamines in its cigarettes; is that not a fair assumption?
Mr. Chapman: We did do that for that reason, absolutely.

Justice Riordan:  And therefore, it's a less hazardous cigarette as a result; is that a fair statement?
Mr. Chapman: We had no way to know, sir. But it was just the  right thing to do, because it had been identified as a component of smoke that could be [reduced]...

Justice Riordan: So why didn't you do right away, go as whole as a bullet right away with what you looked at as a potentially safer cigarette?
Mr. Chapman: We didn't know for sure it would be safer, and we had inventories of tobacco to deplete.

When the trial resumes this Monday, November 4th, a new company will be presenting its factual defence. The first witness this fall for JTI-Macdonald will be Ray Howie.  Later that week, Jeff Gentry will testify.

Monday 28 October 2013

Day 176: Mr. Potter's only witness

On Monday last week (October 21), Mr. Simon Potter introduced the first and last fact witness for Rothmans, Benson and Hedges (RBH).

On the shoulders of this one employee - the 49 year old Mr. Steven Chapman - the lawyer placed the daunting responsibility for explaining events that took place at Canada's second largest tobacco company over the last half of the 20th century. It was up to Mr. Chapman to present the facts that might save this company against its share of the $27 billion claimed in the Montreal tobacco trials.

That seems like a lot of pressure to put on any one person, but Mr. Chapman is experienced at being being the legal face of RBH. For a decade or more, he has been the point-person on regulation and government relations at the company. (Exhibit 30046) He was also the representative witness during the off-the-record discovery stage of this trial.

In this latter role Mr. Chapman had boned up on events, some of which predated the 1988 start of his employment at RBH (some even happened before he was born!) These efforts, Mr. Potter suggested, qualified Mr. Chapman to speak about events that would otherwise have been beyond his personal direct experience.

One trial: three defence strategies?

In the day-to-day progress of this long trial the lines between the two lawsuits and three separate defendants often seem to blur. It's easy to forget that although the companies are being tried concurrently, the behaviour of each will be the subject of separate judgements.

So although the counsel have been compelled to work together in the management of their companies' defence, they may have very different views on how best to mount their defence. It is at moments like last week, when the spot-light moves from one company to another, that such differences suggest themselves.

Certainly the drag-it-out tactics of Imperial Tobacco are in sharp contrast to the lets-get-out-of-here approach of Mr. Potter. Since the trial began, Mr. Potter has consistently acted to minimize the amount of time that RBH employees spend on the witness stand, and has even made concessions to avoid witness testimony. Of the 35 corporate witnesses ever identified by the combined defence teams, only three were RBH employees.

Two from that list were culled earlier this month, making Mr. Chapman the last man standing for RBH

A  hearsay account 

I was not among those who watched Mr. Chapman during his three days of testimony last week (I was at a meeting several time zones away). Now it is me who must rely on the reports of others! Let me assure you, this trial is far more entertaining when you are in the courtroom than when reading transcripts.

On the other hand, it would appear that there were some new faces in the spectator's gallery, including some who declined to confirm that they were observing on behalf of Philip Morris.

As one might expect, the RBH legal team was out in force. Gowned and sitting in front of the bar were McCarthy-Tétrault's Simon Potter, Pierre-Jerome Bouchard, Klevinas, as well as Steven Sofer from Gowlings in Toronto. Kristian Brabander and others were watching from behind.

The lawyers outnumbered the witnesses by a More RBH lawyers than RBH witnesses! Hmmmm..


Believing that low tar cigarettes are less risky - but not saying so.

By Mr. Chapman's description, the research capacity at RBH's own facilities was modest, and the company relied on scientific advice from its ownership companies, Philip Morris International and Rothmans.

Despite the small scale of their research base, the company nonetheless adopted a "operating philosophy" that guided its research and product development. This was based on the idea that lower tar cigarettes were less risky. "Nobody knew for sure," Mr. Chapman said, but the company worked on the "belief conveyed by Health Canada that 'low tar is less risky'."

Even today, Mr. Chapman believes that low-tar cigarettes are less risky. "If you reduce exposure to smokers ... [there is] some reduced risk; it doesn't make it safe, but there's a reduced level of risk."  
Exhibit 536. More than 50 years
have passed since the company
shared its views on the risks
 of smoking
These beliefs were never communicated to the public, he said. No health claims were ever made by the company for its low-tar products. In fact the only public statements about the risks associated with smoking were those legendary ads placed by Patrick O'Neil Dunne in the late 1950s. Other than that, Mr. Chapman said, the company "deferred to Health Canada to communicate the information." 

It wasn't just the public that was kept in the dark about what the company actually thought. Employees did not receive any instructions about what they should say or think about smoking and health issues. (This seemed to be such an important point that Mr. Potter raised it twice.)

A general approach to reducing harm

Mr. Chapman explained that it was because the company saw "no way, to the best of our knowledge, to eliminate any specific component in tar itself," that it focused for decades on  "reducing the levels of tar/nicotine/CO in all of our products."

These efforts were successful, by his account. He said the average tar in each cigarette had been reduced from 25 to 35 mg per cigarette in the 1960s to around 12 mg today. "There was a lot of development through that period of time." 

Nonetheless, if specific compounds could be removed from tobacco, the company would do it. Such an opportunity arose a decade ago, when the company participated in the "selective" reduction of tobacco specific nitrosamines (TSNAs) by requiring changes to the way tobacco was cured. (Exhibit 30047

Carefully designed products - but designed to reduce tar, not increase nicotine

As the man in charge of cigarette design, Mr. Chapman was well placed to talk about the various parameters of cigarette design, and how they influence the smoke that is produced when the cigarette is ignited. (Exhibit 30048).  From his description, all tinkering of these various design elements (the blend of tobacco, the filter, the papers, the size or weight of the cigarette) was aimed at "designing a cigarette for a certain taste at a given tar level."  

He assured the Court that the goal was never to ensure that smokers received a set amount of nicotine in any puff, any cigarette or any day of smoking.  "Nicotine does correlate with tar, but it wasn't ever our focus. We designed the product for taste, and if the nicotine happened to be lower or higher, we didn't do anything about it."  

Mr. Potter encouraged his witness to describe how each of these design elements contributed to reducing tar.
* Adding stems to tobacco leaves, or expanding the tobacco to take up more space in the cigarette were cost-saving measures, but they also "have the impact of  reducing tar and nicotine." Mr. Chapman said that RBH does not use reconstituted tobacco.
Chemicals added to cigarette paper caused the cigarette to burn faster, giving "less puffs per cigarette" and consequently less tar per cigarette.
Changes to the permeability, porosity and ventilation of a cigarette resulted in more air diluting the smoke, thus reducing the amount of tar.

Mr. Chapman described other factors which guided cigarette design  - including appearance, taste and costs of productions. "We're trying to produce the quality cigarette that would be a product that our smokers would continue to smoke and that, hopefully, competitors would choose to switch to our brands."  

The company never explored how to make cigarettes elastic or how to facilitate compensation. Nor did they try to make their products to be appealing to people under 18 years of age or to non-smokers. They did not design cigarettes to make it harder to quit smoking.

Mr. Chapman testified that there was a twenty year period when tobacco additives were not used. Public concerns led to suspending the use of humectants (glycerol, propylene glycol, and sorbitol) after 1985. He revealed that the use of glycerol was resumed after 2005. Humectants are used to maintain the taste of cigarettes by preventing them from drying out.

He said that other additives - specifically coumarin and ammonia -- were never used by RBH. Nor was nicotine ever added to any cigarettes sold by RBH. There were no attempts to adjust the quantities of nicotine in smoke, the presence of free nicotine, or the pH balance of the smoke.

Not youth! Not us

Many months ago, the plaintiff's expert witness, Richard Pollay, had identified the Belvedere Rock series as a way that RBH reached young people in its marketing.

Mr. Potter showed Mr. Chapman marketing documents related to the campaign (Exhibits 30054 and 30053) and asked his witness to confirm that the marketing efforts had only ever been aimed at smokers of legal age.

Mr. Chapman agreed with Mr. Potter's suggestion that the campaign directives reflected the company's concern that young audiences be protected from such marketing efforts.
 "Because the events are targeted at our younger, legal demographics (19 to 24 year olds), they are potentially subject to greater scrutiny by anti groups, and require much greater caution on  our part to ensure that there is not a perceived spill over to younger groups."

Innovations intended to increase market-share, not smokers. 

Mr. Chapman was asked about several product development initiatives explored by RBH. Some of these had been discussed earlier in the trial -- such as Project Buck, which aimed to encourage sampling by selling cigarettes in an affordable small package of 5 cigarettes. This was never intended to reach under-age smokers, he said. (Exhibit 30050)  Like many other ideas proposed (Exhibit 30049), it never made it to market.  

He spoke of other product ideas that ultimately went nowhere: Hi-Salt tried for "high sensory appeal at low tar", Passport was aimed at reducing the amount of sidestream smoke, Picnic looked for a cigarette with relatively less tar than nicotine and Phoenix tried to give smokers a cigarette that could be extinguished and then re-lit.

This work was not forbidden by government --- our tax-expenditure dollars were at work supporting it! RBH applied for and received income tax credits for its research into better-selling cigarettes. (Exhibit 30051).  

Law-abiding corporate citizens

Mr. Chapman outlined many of the reporting requirements imposed by Health Canada regulations and willingly complied with by the company. He said he prepared the reports on the ingredients in cigarettes, the chemicals produced when they were smoked, the bioactivity of the smoke and other business information. (Exhibit 30055). 

The company set up internal committees to ensure compliance and the penalty for failing to report was  "dismissal with cause" - Exhibit 30056.

Mr. Potter seemed to imply that the absence of any response by Health Canada to these reports should be taken as a form of endorsement. He asked his witness to confirm that the government has never asked the company to stop making cigarettes, to stop making any brands of cigarettes, to stop using certain papers or ingredients, or to achieve reductions in any specific chemicals in cigarette smoke.

Mr. Chapman described working "with the support from Health Canada" on a pilot study to mathematically extrapolate the quantity of certain chemicals based on measurements of tar. It was this collaboration that led to the "benchmark" exemption in their regulations. (Mr. Potter pointed out that this meant that the general reduction in tar levels also meant a reduction in other chemicals in smoke. "They knew the deliveries of the harmful things were going down."). 

Mr. Potter asked Mr. Chapman to testify that in addition to not opposing RBH's production, the  federal government actively gave the company "a license to manufacture and distribute products in Canada." 

Two of the three days Mr. Chapman spent on the witness stand were given over to cross-examination by the plaintiffs' lawyers. A report on highlights from those days will appear hear tomorrow. 

Next Monday, November 4th, the trial resumes with the testimony of  JTI-Macdonald scientist, Ray Howie.

Friday 25 October 2013

The Shrinking Swiss-Cheese Defence Schedule

An almost daily conversation at the Montreal Tobacco trials this season is the schedule for the upcoming weeks.

The three tobacco companies give all appearances of scrambling to adjust their calendar as they cut their list of witnesses down. I would expect that the selection of witnesses is an evolving issue in any trial - but in recent weeks it seems to be more a story of devolution.

There are a few stages in this trial where the witnesses have been identified. One is before the trial, where each party presents a formal statement of readiness, which includes the list of witnesses. These statements were duly filed in February 2012 by Imperial TobaccoRothmans, Benson and Hedges, and JTI-Macdonald. A second was on January 14, 2013, when the companies complied with Justice Riordan's demand for a list of witnesses. A third list was filed with the court, but not made fully public, on April 9. Subsequent schedules circulated in June and September have similarly not been made public.

It was in response to the length of these witness lists that Justice Riordan ruled to constrain the "Defence Proof" to 175 days.  It now looks like this cap is way above the number of days that will actually be required, as the number of witnesses - and the length of their testimony -- is frequently reduced.

The baker's dozen in-house witnesses

On Wednesday this week, JTI-Macdonald provided its presumably final list of in-house witnesses. There are 5, of whom 4 will be scheduled in November. (The fifth, a former president, is apparently not available until next year.)

With these additions, there will now be 13 in-house fact witnesses presented by the tobacco companies, about half the number that were on the schedule shared two months ago. Not all of these changes can be seen as the result of strategic decisions -- some are infirm, two have died and one was effectively struck from the list by Justice Riordan.

If the November schedule goes as planned, these men (no women!) will have testified for a total of 27 days -- a fraction of the 71 days predicted in January, and much fewer than the 41 days on the schedule set in September. A table of former and current employees identified in connection with this trial is shown below.

And we still don't know what is in store for December!

Foot dragging? Fear of the Finish line?


Reducing the number of witnesses does not seem to be motivated by any desire to speed up the trial, however. Over the past six months, the companies have pressed the "pause" button for 18 trial days -- six weeks' worth of hearings.

Justice Riordan has agreed to several of the Industry's requests for breaks in the schedule, including one week in each of June, September and November. Other holes in the schedule were left when witness testimony took less time than scheduled, but there was no court business on deck to fill the time left vacant.

The trial has thus sat for only two-thirds the number of hearing days as in the same period during the "plaintiffs' proof" last year. To be fair, 2 of those additional days are the result of more statutory holidays or a breaks to accommodate a judges' meeting. (The figure shows the grey-days where the trial was suspended for 2012, in green, and 2013, in red.)

Days of testimony by in house fact witnesses for the 3 defendant tobacco companies 
(updated on November 25, 2013)
 Witness
Pre-Trial
Jan 2013
Sep
2013
Final
Date testified

ITL In-house fact witnesses
Barnes, L

1
1


Blanche, N

§
1
1
Oct 16
Boswall, A

3



Chan, A

3



Crawford, P

2



Duplessis, G
5
3
2
3
Sep 12, 16, Oct 10
Hirtle, J

§
1
1
Oct 15
Kalhok, A

3
2
1
Oct 7
Kemball, B

4
2


Massey, S
10
10


(deceased)
Mercier, JL
2
2
2


Porter, A

4
2
2
Aug 27, 28
Potter, S

2
1


Read, G

5
3
3
Sep 9, 10, 11
Richard, E
4
4
2
2
Oct 9
Sinclair, J

§
1


Total ITL
21
46
20
13


RBH in-house fact witnesses
Barnett, J

1
1


Black, G
1

1


Chapman, S
2
2
2
3
Oct 21, 22, 23
Other
1

1


Other
0.5

1


Total RBH
4.5
3
6
3


JTI in-house fact witnesses 
Gage, P

n/a

3
2012: Sept 5,6,7
Gentry, J
**
4
2
3
Nov 5,67
Hood, J
**




Hoult, P
**
6
3
***

Howie, R
**
4
2
1
Nov 4
Lane, F
**



(deceased)
Lang, Ed
**




Marcotulio, R
**
4
2


Massicotte, GP
**

1


Newman, L


1
2.5
Nov 20-21 (plus one tba)
Piehl, D
**




Poirier, M
**




Robb, R
**
4
2
2.5
Nov 18-19-20
Sauro, M


0.5


Trudelle, M
**

1


Walker, W


0.5


Total JTI

22
15
12


Total  All

71
41
28

** Identified on list, but no time estimate given
*** Will appear later, date and length not announced.




The trial will resume on November 4, with the return of JTI-Macdonald's former head of research, Ray Howie. An after-the-fact report on the testimony this week by RBH regulatory director, Steve Chapman, will appear here next week.