Thursday, 5 December 2013

Day 190: The revival of Dr. Burns' expert testimony

The noted American physician and tobacco researcher, David M. Burns, might have found his ears, um, burning this morning as the Montreal Tobacco Trials suspended the hearing of witnesses to debate a motion that would prevent him from testifying at this trial.

Or perhaps he is used to it -- Dr. Burns' participation at this trial has been debated before.

Those with long memories might recall that two years ago the federal government filed an expert report they had commissioned from this prolific researcher - "The evolution of public health recommendations regarding low tar and nicotine cigarettes." 

Much of the report focused on Monograph 13, the watershed report of the National Cancer Institute that was issued in 2001. It put to rest the idea that low-tar cigarettes had any health benefit and Dr. David Burns was the senior scientific editor of the report.

But since then, the status of Dr. Burns and his report were changed more than once:
* In April 2012, the report was challenged by the tobacco companies, who felt that it went beyond the scope of what should be included in the government's defence.
* On May 1, 2012, Justice Riordan agreed in part, and ruled that much of the report be excluded. (Specifically, matters related to low-tar cigarettes, the development of the 1981 Surgeon General's report and the NCIC Monograph 13. He said those questions were not relevant to the government's case).
* On November 13, 2012, the Court of Appeal turned down the request of the federal government for this issue to be reconsidered by the higher court. (The sting of that decision was doubtless lessened by the decision the same court made the following day to liberate the government from the case altogether).

A year later, the plaintiffs have dusted off the report. In recent weeks, they apparently informed the defendants of their intention to ask Mr. Burns to present it and his expertise in support of their case during the "counter proof". What triggered their interest was the testimony this September by Imperial Tobacco's expert witness in compensation - Mr. Michael Dixon. (Mr. Dixon is a scientist who has been employed and contracted by British American Tobacco).

Mr. Dixon challenged
this finding from
Monograph 13
Although Mr. Dixon had made no mention of Monograph 13 in his report, it evolved as a focus of his oral testimony. There was no mistaking his disdain for this scientific consensus against low-tar cigarettes (which Mr. Dixon still believes are a safer option for smokers). He went so far as to say that the authors had improperly calculated the amount of compensation, and offered his own corrections to their data. (Exhibit 40346.221 B)

"Too late and too little value to the trial"

The tobacco companies appeared united this morning in their request to Justice Riordan to exclude Dr. Burns from this trial.

Simon Potter led their argument that he should not be permitted to defend Monograph 13 against Mr. Dixon's comments and re-interpretation. The gist of his argument was that the plaintiffs had missed the boat, and shouldn't be granted a late-boarding pass.

He said it was the plaintiffs' own fault that they had not called the witness earlier -- and that the need to do so should have been apparent from a number of other references to the Monograph. "They were expected to make proof on their issue in their case in chief" but instead had "decided to lie in the weeds on Monograph 13 and wait to see how it panned out."  

To let Mr. Burns testify would be to allow the plaintiffs to "split their proof," and to get "two kicks at the can."  Moreover, the Monograph was not relevant to Canada - as it was "apologia of how American governments made a mistake by encouraging smokers to go down tar." 

(Mr. Potter's argument this morning was instructive in many ways -- I appear to have sat through the same trial and come out with quite different impressions of what has been said. Apparently, when testifying on behalf of the federal health ministry, Mr. Denis Choinière agreed that low-tar cigarettes were a "net public health benefit." How did that slip by me!?)

It's been a while since there has been this kind of procedural wrangle put to Justice Riordan, and he seemed to be enjoying the moment even as he was clearly not enjoying Mr. Potter's version of events. "I am not sure you are characterizing it correctly," Justice Riordan said, and then gave a brief summary of Mr. Dixon's objections with the Monograph and the ways in which it was indeed a new development in the trial and one that had happened after the plaintiffs proof had closed.

He went so far as to offer a hint about how he is receiving the contradictory testimony about compensation.  "I have thought about this. I am not sure what the relevance is whether compensation is complete or partial. Everyone agrees that there was compensation to some degree –whether it was 100% or 85% or 50% ?? -- I don’t see that there is much difference at this point."

Ms. Suzanne Côté and Mr. Francois Grondin thus had a clear idea that Justice Riordan was not likely to support their motion even before they had a moment to make their pitch. Ms. Côté pointed out that Mr. Dixon's role was to counter the testimony of Mr. André Castonguay. Did the judge want to start another cycle of proof and counter proof?  Mr. Grondin focused on the plaintiffs' burden of proof and their responsibility to have met this burden earlier in the trial.

They did not seem to take much comfort from Justice Riordan's comments that they might themselves need additional testimony to be provided. The judge pointed out that the industry's expert witnesses might contradict each other. To some extent, he said, this is what the trial was dealing with. (Monograph 13 was introduced as a result of the report of JTI-Macdonald's historian, Mr. Perrins, but was subsequently attacked by Imperial Tobacco's expert).

Ultimately, the question was not resolved today. Justice Riordan said he would not allow Dr. Burns' first report to be filed, but would allow the plaintiffs to seek a new report on the narrow issue of  reply to Mr. Dixon. At the same time, the companies could prepare for a joint-witness to respond. Until then, he would  "suspend the motion for the moment."

After a few minore housekeeping issues, the trial adjourned at noon.

The road ahead

Ah! more witnesses are falling off the list. Travel plans were given as the reasons that two scientists who worked for or with the federal government -- Mr. Pandeya and Mr. Rickert -- will now likely not be testifying. (But might it not also be that after they met with the company's lawyers their testimony was no longer desired?)

Next week, the final two former government employees will testify. Mr. Brian Zilkey and Mr. Bert Liston. The following week -- the last before the Christmas break -- will have only two witnesses. CTMC-financed researchers, James Hogg, will testify from Vancouver on December 16 and 17th. The trial will not sit on the 18th. The last witness of the year will be Mr. Robert Robitaille.