Thursday, 10 October 2013

Day 173: How can you keep the boy on the farm?

It is said that the best defence is a good offence - and so Imperial Tobacco seems to have thought when they selected Gaetan Duplessis as their third fact witness.

This recently retired agronomist-turned-scientific-director was brought to the Montreal Tobacco Trials last month to testify about the deliberateness with which Agriculture Canada worked to increase the nicotine level of  Canadian-grown tobacco. (It was a disturbing story!)

This story told, the lawyer who prepared Mr. Duplessis' testimony for Imperial Tobacco, Suzanne Côté, could be forgiven for patting herself on the back. Here was a witness who was offering a new story, and doing so in a likeable way.

Perhaps it was because things were going so well that Mr. Duplessis was kept longer answering Imperial Tobacco's questions than originally anticipated. By the time Ms. Côté had finished there was no room left in the day, and the cross examination was postponed until after a two-week break.

André Lespérance and Philippe Trudel appear to have put these weeks to good use. When Mr. Duplessis was recalled this morning, these plaintiff lawyers had found a new role for Mr. Duplessis to play in this trial.

Forget about Agriculture Canada! Here was a witness who could give Justice Riordan additional reasons to believe that Imperial Tobacco trained its staff to deny the harmfulness of smoking, directed them to suppress knowledge that cigarettes delivered more nicotine than claimed on the packages, and put their scientists under the authority of BAT headquarters.

A blocked memory

Was VP Research
Patrick Dunn
trying to perpetuate
a scientific controversy?
Thirty years ago, Mr. Duplessis was among a small group of company scientists who were asked to listen and critique a presentation prepared by their boss, Patrick Dunn. The outline of that long-ago presentation on "The functional and social significance of smoking," (Exhibit 1434.1) and the comments of those who critiqued the dry-run (Exhibit 1434) were the basis of Mr. Lespérance's first questions.

Mr. Duplessis' recall of the details of the speech was hazy today: he could not remember where Mr. Dunn was going to make the presentation, or why it was being prepared. He did, however, have a clear memory that "it was a horrible presentation" with "hundreds of slides."   (It was later revealed that the speech had been given to a meeting of IMASCO executives - Exhibit 1114)

Even without Mr. Duplessis' recall, the content of the draft speech can be inferred from the outline and the comments of the in-house reviewers. It appears to have covered a wide range of "medical," "pharmacological" and "psychological" issues related to smoking, including the tensions between the "benefits of smoking" and the "antagonistic views" faced by smokers. 

The reviewers' comments which cautioned about implying "a real link between diseases and smoking," or referring to tobacco as a "scapegoat" might have suggested that the speech was part of some corporate dissembling about causality. If so, Mr. Duplessis seemed reluctant to say so.

Only after being pushed repeatedly by an uncharacteristically severe André Lespérance did he acknowledge that the company maintained a position of "scientific controversy" about causation in the early 1980s. But even souvenirs of more recent presentations he attended (Exhibit 1600) failed to clarify his memory of whether the company continued to maintain this view until he retired in 2010.

Blocked ventilation holes

Last month an in-house expert witness, Mike Dixon, had testified on behalf of Imperial Tobacco that the tendency of smokers to block the ventilation holes with their lips did not increase the amount of tar, nicotine or carbon monoxide they inhaled. (Exhibit 20256.1)

Mr. Duplessis seemed to disagree with Mr. Dixon. He acknowledged today that lip blocking "is a risk". "It is a reality that if the holes are too close then there will be blockage. If they block the holes then the measured delivery will be inaccurate."

He was not the only one at Imperial Tobacco to have seen hole blocking as a way of smokers receiving more nicotine and tar than expected.  In 1984, CEO Jean-Louis Mercier, had raised the issue with the CMTC, noting that that a competitor had put the ventilation holes very close to the filter. If "at least some of these holes" were covered then "higher deliveries of tar and nicotine than would be anticipated from the package" warned Mr. Mercier. (Exhibit 285)

These concerns were validated the following year in a research project undertaken by Mr. Duplessis' colleague, Cathy McBride. She studied cigarette butts that had been collected from shopping malls and found that almost half of smokers had covered the vent holes with their lips. Her boss reported her finding that "ventilation zone blockage is more prevalent for ultralow products than for low or mid products." (Exhibit 1603),

Although Mr. Duplessis today offered concerns about the study's methods, it had been considered good enough at the time to be nominated for submission to the industry's annual science meeting. Before sending the paper in, however, Imperial Tobacco invited their more senior BAT colleagues to state any objections. (Exhibit 1603.1).

Life before e-mail! Alan Heard sent his response in the form of a Telex. The capitalization emphasizes the imperative:


Low and behold - when the Conference took place later that year the McBride paper on lip blocking was nowhere to be found. (Exhibit 20205). (As he drew the witness' attention to the apparent censure of this study, Mr. Trudel remarked on the irony that  this catalogue of presentations had been introduced by Imperial Tobacco and  "used to show that people were free to publish.")

Testing blocked levels

A decade later, Health Canada was moving towards changing the machine test methods so that ventilation holes were covered before the cigarettes were artificially smoked.

Imperial planned its response to new cigarette test methods
Exhibit 1601

One of Mr. Duplessis' tasks was to plan ways to respond to these changes (Project Lightning - Exhibit 1601).

The studies prepared for Health Canada showed that blocking the vents (Max 2) greatly reduced the differences between regular and low or ultra low cigarettes. (Exhibit 1601)  But BAT's own estimates of the difference was even greater. (Exhibit 1602)

Blocking minutes of meetings

Last year, another former BAT-group scientist, Jeffrey Wigand, had testified that in the early 1990s BAT adopted the "mental copy rule."  "Don't write it; you say it and then there's no document left behind."

Today, Mr. Duplessis seemed unfamiliar with the term, but Philippe Trudel reminded him of his own personal experience of the phenomenon. In 1995, Mr. Duplessis had attended a BAT-wide scientific meetings, whose participants were cautioned that "due to the document situation in R&D at B&W, no detailed minutes of the meeting will be issued." (Exhibit 1604)

Mr. Duplessis was asked to explain. "I can't. Brown and Williamson had made a decision that this the way things would be. Basically they told us that is what it is going to be. We were free to go or not go on that basis."  His tone made the conditions of attendance sound as innocuous as planning to attend a pot-luck dinner. He had not even been curious to find out why minutes would not be taken. (And as for the absence of any personal notes he might have taken? He said he was a doodler who was incapable of taking notes.)

Unblocking responsibility for nicotine levels

A month ago, Imperial Tobacco's lawyers used Mr. Duplessis' testimony to suggest that Agriculture Canada was the decision-maker with respect to the nicotine content of Canadian-grown tobacco. Today, the plaintiff's lawyers used his presence to suggest that Imperial Tobacco made the decisions about how much nicotine went into a cigarette.

The document used to illustrate this was Mr. Duplessis' 1995 reflections on the many ways in which Canadian cigarettes could be differentiated from each other. (Exhibit 1605)  The company blenders "put together an array of blends that are tested with consumers" he said. "It was a company decision as to what tar levels the brand would have."

The trial sits for only two days next week. On Tuesday afternoon, Mr. Hirtle will return after an absence of almost one year. One Wednesday, another new witness - Mr. Neil Blanche.