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.