Monday, 4 November 2013

Day 179: A double bill: Two courts for the price of one

It's another new month at the Montreal tobacco trials, and another stage in the trial has been reached. JTI-Macdonald (JTIM) becomes the third and last of the defendant tobacco companies to present its in-house "fact" witnesses.

JTI-Macdonald counsel,
Kevin LaRoche & Nancy El Sayegh
With the change in roles came a new round of musical chairs. Mr. Kevin Laroche moved up from the place usually reserved for JTIM counsel on the back row of the defence side. He took his seat on the front desk at Justice Riordan's left hand. Beside him sat a colleague from the same BLG law firm, Ms. Nancy El Sayegh.

The courtroom takes on a lighter mood when Mr. LaRoche is at the front. Watching today I appreciated some of the techniques he uses to lessen tension: reaching out to his opponents in the hallway before the doors were unlocked, prompting them to laugh at his joke in the moments before he began his examination of his company's first witness, maintaining always a congenial tone and non-aggressive body language. He makes it look easy, and perhaps for him it is.

There were others from JTIM's team in the room - notably Mr. Guy Pratte who watched the morning's session from the observers' seats behind the bar. He was flanked by a small group of students from Concordia University's school of journalism who had been assigned the task of preparing a 500 word report on the morning's events. Good luck with that!

One trial regular is obvious not with her presence, but with her increasingly prolonged absence. It is now six weeks since the hard-to-overlook wagon master of Imperial Tobacco's team has been seen in this courtroom. Nothing has been said about Ms. Glendinning's current whereabouts, but I am likely not the only one who is wondering whether we should be sending flowers or just looking for sudden developments in some other courtroom.

Mr. Howie's return appearance

More than a year has passed since Mr. Raymond Howie last testified at this trial. Not quite enough time to entirely forget his still-thick Northern Irish accent or his idiosyncratic views on health issues. But long enough, Mr. LaRoche may have thought, to give this witness a second chance at a first impression. Certainly the first rounds of questions he put to his witness allowed us to see Mr. Howie in a more personable light.

Perhaps as a warm up question, Mr. Howie was asked to describe his former boss, Derek Crawford. An old fashioned man. Very straight. Very honest. A workaholic. A perfectionist. A gold medal Olympic writer - no doubt about it. He spoke of his nervousness when having a go at buying tobacco through the Dutch Auction system. "The company was lucky it wasn’t my job!" 

When he spoke of tobacco blending he sounded like a vintner talking about terroire.  The importance of knowing the farmers' reputation, The balance between the "notes" of tobacco taken from different parts of the plant. The "good smoke" that results when there is a long hot summer.

Although these anecdotes were interesting to listen to -- a welcome quality these days - their connections to the issues before the trial seemed less clear. Nonetheless, they did seem to lighten the mood - and I noticed that Justice Riordan seemed to be enjoying them.

Soon the questions progressed to many of the same issues that had been discussed with Mr. Howie last year. But this time the overarching framing was not so much what the company was trying to do as what it was unable to do.  From the way the questions and answers flowed, it seemed that RJR/JTI-Macdonald did not have the know-how to do much of anything, let alone to do anything complicatedly wrong.

Mr. Howie confirmed many areas in which the company did no research at all. Not into the health consequences of smoking. Not on the effects of nicotine. Not on why people smoked. Not about why they quit. Not on how they smoked cigarettes or whether they 'compensated' for low deliveries. If Mr. LaRoche was trying to establish that his client met expectations for some level of diligent effort by manufacturers, he had an unusual way of doing it.

Instead, Mr. Howie testified that the company and its scientists relied on information produced by others -- most notably by the research department in the Bowman Gray building in Winston Salem. Their American owners provided them with direct research support, and also kept the up to date with other research findings (Exhibit 40352). 

It was a good arrangement, Mr. Howie said. "Right from the start it was an excellent relationship. They were well qualified, knowledgeable people. Good people. Great to visit. ... In my whole career it was one of my best relationships with any outside group." 

Yet research of any kind did not seem to figure very highly in the answers Mr. Howie gave today about the many issues where his company's views differ from those of the plaintiffs. It was his own experience and observations that were used to support his conclusions.

A former smoker (he quit 8 years ago), he recalled his motivation for smoking in ways that made no mention of any drug effect. It was instead "the ritual, the habit, the hobby," that kept him smoking."The ritual of going out and buying a pack of cigarettes. Bringing it home, opening up the cellophane and getting the first smell of the fresh tobacco." ...  "the climax of lighting the cigarette and taking the first puff." 

When he decided to quit (why? "Getting to a certain age, I thought that it was best to quit, given the link.) he had no difficulty in quitting cold-turkey. Oh yes, he had benefitted from lower tar brands by "weaning" himself down tar levels until quitting was not too much of an effort.

It was what he saw in the market place that suggested that nicotine is not the drug that drives smoking. "If that were true, all that people would need to do is to buy nicotine gum or the patch. They wouldn’t need to buy cigarettes any more. But it is the ritual of the cigarette and the combination of the tar and nicotine that gives a unique taste and flavour." 

He based his doubts about ongoing compensation on his own physical reaction to smoke. "You can tell [when you are compensataing] because the cilia hairs - when you are smoking a high tar cigarette you can tell those aren’t working and you get a lot of phlegm and are coughing a lot."

What's in a number?

For many years, cigarette packages displayed quantities of tar, nicotine and carbon monoxide on the side of the package. The accuracy of the numbers shown has been called into question in this trial -- but Mr. LaRoche introduced an even larger challenge to the usefulness of any numbers when he asked Mr. Howie to talk about a calibration exercise undertaken among tobacco laboratories in Canada. (Exhibit 40349).

The results suggested that there was a 20% variance in the results among only 6 labs. While a control cigarette produced an average tar value of 9.6 mg across the laboratories, the variation of 1.9 meant that on some machines it was reading as high as 11.5.

Mr. Howie said that it was ever thus. "These numbers don’t surprise me. There is tremendous variation when you get laboratories together - even without considering the variableness of the cigarette."  

Safer cigarettes eclipsed by ad ban

RJReynolds was the pioneer of innovative cigarettes, like Premier and Eclipse. Previously questions on these products have been ruled out of order, but Mr. LaRoche was able to ask Mr. Howie to talk about why these products had never been marketed in Canada, even though that had once been the plan.

He said that Premier had been an unsuccessful product. "They found it difficult to communicate to consumer what all this was about. One of the biggest things was that it didn’t diminish like a cigarette .. after 10 puffs you are looking at the cigarette it is the same size."

It wasn't only the concept that made smokers reject Premier. "It was the taste. They wanted the real taste of a cigarette. [The company] had to go back to the drawing board, and that's when they came out with Eclipse." 

Mr. Howie was one of the few users of that brand. He said he had smoked Eclipse cigarettes for about 3 months when he lived in Geneva. "I got used to it, but it wasn’t really a good smoke."

He said the reason they were not ever introduced in Canada was because there were "two big walls to climb - a bad product and no advertising."  He said it was "unfortunate" that the Eclipse cigarette was dropped. 

What I meant to say

Mr. LaRoche spent some time asking Mr. Howie to testify again on several documents that had been shown to him last year by the plaintiffs. These involved the tendency of smokers to block the ventilation holes of JTIM brands (Exhibit 623, 623A, 623B, 629), and the use of additives (636A, 630).  

Mr. Howie repeated his view from last year that the study which measured hole-blocking was flawed, and that his own re-calculation (which he never showed the court) lead him to believe that instead of 75% hole blocking the number was more likely 40 to 50, or even 10% to 15%. This year he provided additional methodological reasons for his conclusions, and added a postscript to the issue: the ventilation holes had been moved in 1989 when when the new ISO measurement method was adopted in Canada.

He put a stronger emphasis on the lack of guidance from the Canadian government about the use of additives, and the company's reliance on the UK Hunter Committee, which he described as "working their way through all the additives" to assess toxicity of each one. He said that all of the additives used in Canadian cigarettes were in conformity with that list or had been tested in Winston Salem and found safe for use. (Exhibit 636A).

Although Mr. Howie had been scheduled to testify for two days, Mr. LaRoche may have decided that it was better a good time than a long time. By early afternoon he had asked his last question.

The cross-examination

The collegial mood continued through the afternoon as the plaintiff lawyers put their questions to this witness. (Mr. André Lespérance and Mr. Philippe Trudel customarily cloak their hard questions in a gentle voice). 

Mr. Lespérance began his questions with a focus on what had happened since Mr. Howie last testified. 

Mr. Howie's answer sounded frank. He said that "they" - by which I think he meant himself and the lawyers - had reviewed the transcript from last year and considered "the sort of message that we wanted to get across that we did not get across a year ago." "There were certain areas that needed to be emphasized."  "There are one or two areas where my answer today would be different."

He had not, however, changed his mind about causation. Despite his admission that the "statistical epidemiology is beyond reproach" he was not able to quantify the magnitude of the risks of smoking. When pressed, he said that the risks of smoking were "low to medium.". It was "probably true" that at least one Canadian died as a result of smoking last year, but he said he had "no idea" whether as many as a thousand might have. 

By this point, Mr. Howie sounded much more like the man who had testified for 4 days last year. And Justice Riordan's brow was beginning to furrow in a familiar way.

Mr. Lespérance showed documents that had a competing view to Mr. Howie's. Among these were Dr. Crawford's recommendations to downplay the Hunter additive list and to withhold information on some process ingredients from government. (Exhibit 630B). 

Contradicting Mr. Howie's opinion that all the chemicals on the Hunter list had been tested for toxicity were the veiws of his boss and Health Canada that said chemicals which had been "used for many years" could be included without further evaluation. (Exhibit 802B, 1620, 1620A).

Mr. Lespérance asked Mr. Howie about a report he had received from RJR additive specialist, Dr. Suber. This extract from the 1979 US Surgeon General's report (Exhibit 601-1979A - not yet available) noted that glycerol (an additive used by RJR-Macdonald), when burned, produced harmful compounds. 

Mr. Howie bristled. "I disagree with this ... There is no harm that can come from the use of glycerol. ...  I don’t know why we have to go through this additive diatribe because it is not right. We took all of our additives out, whether they were process enhancers or whether they were flavours or flavourants, we took them all out. But even though they were in there we made damn sure they were not causing any harm!"

Another additive used by the company - sorbitol - was found to produce benzopyrene, Mr. Lespérance pointed out. This admission was on the very same toxicity sheet that Mr. Howie had used to support his view that sorbitol was safe (Exhibit 40350). Mr. Howie irritation level increased. "In this air we are breathing there is more benzopyrene. In a barbeque! You are clutching at straws in all of this. We have been given a simple and succinct answer from Dr. Suber" 

More numbers

Exhibit 366 - pH levels of
Canadian cigarettes
Perhaps the most vulnerable moment in Mr. Howie's testimony was when he was asked to explain how it was that Export A cigarettes produced a pH value of over 6 on the "benchmark" study prepared by the companies when his own testimony had been that such levels allowed for the release of "free nicotine". (Exhibit 366)

Like me, Justice Riordan and André Lespérance seemed to have difficulty understanding how the "lab to lab variation" could explain this away. Mr. Howie stood firm. "You really don’t get this. These are from another laboratory!"  As I eventually understood it, he said that a much higher pH value from other labs would be required for it to be assumed that free nicotine could be produced by Export A cigarettes - -maybe 6.5 to 7.

"We had no free nicotine in our brands."

Back to the farm

The story of industry programs to reduce nitrosamine levels in cigarettes by changing curing systems on Canadian tobacco farms was recently introduced to the trial. The necessary kiln conversion happened in 2001, a few years after the time period of this trial.

Mr. Trudel finished the cross-examination today by asking about a previous kiln conversion - one that happened during the trial period. He showed Mr. Howie reports by Agriculture Canada and Imperial Tobacco from the 1950s and 1960s (Exhibit 1621R and 1622R, not yet available) that described the traditional "flue curing" barns where heat was delivered to the freshly harvested tobacco through sealed pipes that snaked through the barn floor. Mr. Howie said he thought he had seen barns with the external chimneys, but could not recall the internal pipes.

The documents discussed the conversation of these kilns to a less expensive system using propane gas as a heat source. Exhaust from the propane flame was blown directly onto the tobacco. 

Mr. Trudel wanted to know whether the company had ever monitored the level of nitrosamines in their product. Mr. Howie said they had not had the capacity to do so. Nor did he think it reasonable for the company to have been expected to do so.

"We could have gone out and found a method – but what would have been our purpose?  ... We would be measuring 4,000 or 5,000 chemicals. is that what you are suggesting? That’s not practicable."

Across the street

Today, the action in this trial was not limited to the Superior Court. 

The Court of Appeal was the second ring in this always-fun circus.

There, Justice Yves Marie Morissette was presented this morning with a request from Imperial Tobacco for leave to appeal Justice Riordan's September 13th decision rejecting their request for medical records or other personal details of the smokers who may be selected to testify at the end of the trial. By agreement the timing of this ruling was designed to allow for the Appeal Court to make its own determination without imposing a delay on Justice Riordan's ruling.

Montreal's Court of Appeal as
seen from the 17th floor of
the Palais de Justice
You can't be two places at once -- I could see the Appeal Court from the corridor window during the morning break, but had to rely on my colleague, Pierre Croteau, for details on this morning's important event across the street. 

He tells me that Justice Yves-Marie Morissette spent about an hour listening to Ms. Suzanne Côté's explanation of how the circumstances are different than the three previous times that the Court of Appeal has declined the invitation to overturn Justice Riordan's rulings on the subject. (in 2009, 2010 and 2012) and to the reasons offered by Marc Beauchemin and Gordon Kugler why the same logic should apply. No decision was given today.

The trial continues on Tuesday afternoon with testimony from RJReynolds scientist Jeffrey Gentry. His testimony is expected to continue to the end of the week.