Day 207: Today's guest is Mr. Lance Newman

It was back to some unfinished business at the Montreal tobacco trials today**, with the morning spent concluding the cross-examination of the last fact witnesses for the defence.

A true marketing man

Before he was sworn in for his morning's testimony, Lance Newman looked at Justice Brian Riordan and gave a hearty "Glad to be here."

"A true marketing man," the judge smilingly replied. Given the way plaintiff lawyer Philippe Trudel had treated the director of strategic insights for Japan Tobacco International like a chew-toy during cross-examination two months ago, Mr. Newman's ability to exude both comfort and confidence deserved some recognition.

This time it was Mr. André Lespérance who was asking the questions. He did so in such a relaxed style that the interview felt more like a radio chat show than cross-examination in a many-billion-dollar lawsuit.

This choice of style, matched with the marketers' comfort in explaining his craft, made for an interesting hearing. After almost two years of trial, much of which has been spent pulling evidentiary teeth from former marketing executives at Imperial Tobacco, Mr. Newman unabashed description of the consumers' mindset felt like a breath of fresh air.

Young adults, shaping who they are

One of the first documents Mr. Newman was asked to look at was a 1996 positioning statement for the company's only major brand, Export A. (Exhibit 571B) It described the customers the company was seeking as those "who are in the process of shaping who they are" and who were motivated to smoke through feelings of "rebelliousness" and a desire for "a way to fit in."

Mr. Lespérance invited Mr. Newman to reflect on his own experience as a father, and to see that these feelings would be as stronger or stronger in high-school age teenagers as compared with the "young adults" were were the stated target.

Mr. Newman said that these factors were true for consumers of all ages - and across all products.

"At about any age everyone is looking for some way to define themselves to the world. So, teenagers, 19-34, smokers, non-smokers; everyone, in every brand choice that they make, is looking to define themselves."

"Everything that they buy is, in some way, a manifestation of their personality, how they want to be viewed in the world, how they dress, the car they drive, the cell phone that they use, where they live; these are all manifestations of you as an individual."

He did not see that there was "a higher, stronger drive to define yourself" as a teenager than as a young adult, although the drive might be different, the relative strength might not be.

Mr. Lespérance showed him a previous positioning statement (from 1987, Exhibit 989.14), which gave an almost identical characterization of the "prime prospect", but which defined the target market a year younger (18 - 34 year olds). Mr. Newman explained that the age was adjusted to reflect the changes in the legal age for purchase.

Compete!-ing for customers

Mr. Newman worked at RJR-Macdonald at the time it established its s Extreme Music and Extreme Sports series, but said today that he had not been involved in the "sponsorship properties." He was not, therefore, sure about what was being sought by the objectives of this promotion to "Target people's attitudes and beliefs towards Export 'A'! Promotion created memorable exposure of Export 'A's new image. ... conveying a new image that can not only appeal to the mature consumer but, more importantly to the younger consumer of tobacco."

But he comfortably acknowledged that such promotions were a combination of advertising, point-of-sale, in-bar activities.  "Promotion, in its widest context, encompasses most of the elements in the marketing toolbox."  

Mr. Newman did not describe how the company created "memorable experiences" at these bar events -- but my mind immediately went to the high-octane, lots-of-pretty-girls, party-hearty events that appeared on the Extreme Music and Extreme Sports web-sites. (These promotions were eventually outlawed by the federal Tobacco Act.)

These photos of Export A bar events were circulated by JTI-Macdonald on its now-defunct web-site.

Lifestyle promotions

Mr. Lespérance tried to engage Mr. Newman in an explanation of why the industry abandoned the right to put people in its ads when it adopted a new voluntary code during the years between the collapse of the federal Tobacco Products Control Act (September 1995) and the implementation of the Tobacco Act (April 1997).

Mr. Newman said he could not answer this question (he said he had not participated in the drafting of the code), but he did acknowledge that people were excluded from ads out of "concerns" about lifestyle advertising and the "calculation ... that people equals lifestyle."

Later, in response to a question from counsel for JTI-Macdonald, Catherine McKenzie, Mr. Newman said he felt that lifestyle ads could be created with or without people in them, and that the portrayal of people did  not necessarily make an ad a "lifestyle" ad. 

The company's decisions on lifestyle advertising, he said, were driven by the rules that were set and by the "conservative" attitude of the firm. "we're very careful about what those rules are, and we are always very respectfully compliant to those rules. So if the rules say, "No lifestyle," we don't do lifestyle. If lifestyle is defined as excluding people, we exclude people. It's just that simple."

At the end of a cordial morning, Mr. Newman concluded his time at this trial. Again JTI-Macdonald's witnesses had emphasized that everyday-ness of tobacco marketing.

** this post was written on February 1st, but back-dated to provide continuity in indexing

Day 206: A long way from Strathclyde

"I have made it quite clear earlier that my motive is not to support the tobacco industry. I am here to defend good science and to try to persuade you that some of the things we have been looking at is bad science in a good cause. Bad science in a good cause is still bad science." - John B. Davies, January 29, 2014

After two and half days testifying at the Montreal tobacco trials, social psychologist John Booth Davies will return to Scotland with a deeper understanding of the differences between presenting novel and unconventional scientific theories in a faculty club and having them thrashed out in a court of law.

Given his fondness for Attribution Theory, I wonder how he will describe his first public outing as a tobacco industry witness. This morning, he gave a colourful illustration of attribution: "If you win the case you are more likely to go home and say 'I did well today'. If you lose you will go home and say circumstances conspired against you."   

Plaintiff lawyer Philippe Trudel did what he could to make circumstances conspire against Mr. Davies' giving any credence to the industry's position that "Neither 'addiction' nor 'dependence' deprives anyone of their free will or impairs their ability to stop smoking." (Citation from RBH's statement of defence).

The kid gloves come off

After two days of relative congeniality, the courtroom atmosphere stiffened this morning in the home-stretch of the cross-examination. Mr. Davies was no longer allowed to wander off-topic, and Mr. Trudel no longer disguised his intent to cut the ground out from under the anti-addiction views of this 69-year old social psychologist.

In some of the more captivating hours of exchange at this trial, Mr. Trudel launched a two-pronged credibility attack. The first was aimed at exposing the weaknesses in the philosophical plynth that Mr. Davies had constructed beneath his expert report. The second was an attempt to debunk the vision of Mr. Davies' as an iconoclastic authority in the addictions field, and to replace it with a picture of a man who is eccentric, a contrarian, and very likely a bit of a nutter.

Paper tigers and philosophers of science

John Stuart Mill. Ludwig Wittgenstein. Karl Popper. A.J. Ayer. Thomas Khun.  There were a lot of big names thrown about as Mr. Davies answered some warm-up questions about his views on tobacco control by appealing to a broader philosophy. "The right of people to do to themselves things they wish to do."  "A good scientific theory will not involve concepts that I can't see." "Science never proves anything, it only moves forward." "You never find truth, you only find better theories." "Old guys like me die and new people come along with different ideas."

And on this broad philosophical terrain, Mr. Davies continued to portray himself as a champion of the individual drug user against a "reductionist pharmacological model" of addiction.

Yet, when asked, he could not identify who, exactly, was on the other side of this dialectic. Who said that smokers smoked only for nicotine? Who said that it was not possible for smokers to quit? Other than Dr. Negrete, he could not name names.

Facing sustained questions for the first time, Mr. Davies began to back down. He acknowledged that the pharmacology of a drug was indeed a hurdle to quitting. He agreed that with a few wording changes ("difficulty in quitting" instead of "erosion of will") his own view was not so far from that of Dr. Negrete. He attributed the "reconceptualization" to Dr. Negrete.)

Concern for the young

Mr. Trudel stripped the philosophy away and put Mr. Davies' common-sense views on addiction on record by asking him how he would counsel a "strong-willed" teenager who wondered about using crystal meth. The iconoclast sounded like a worried uncle: "I would be telling the young lady 'don’t do it! It is dangerous. You may well develop a habit, you would be much better to leave it well alone'."

Nonetheless, he would not use the word addiction. "I would say there is a good chance that with this drug you might get into trouble. You might want to use it more and more and you might get into a state where it is doing no good at all. I would never tell her that she would get into a position where she could not stop."

Mr. Trudel showed him the results of focus groups that had been commissioned by Imperial Tobacco in which the researchers concluded that the prospect of losing autonomy was one of the more powerful messages that could be used to discourage young people from smoking. (Projet Jeunesse - Exhibit 301). Mr. Davies was doubtful, saying this was "counter to the research I have done myself." 

Twenty years of non-disclosure

During the voir dire on Monday, Mr. Davies had been asked about his refusal to agree with the 1997 Farmington Consensus (Exhibit 1686) that would require authors to disclose their sources of funding. He said that he had refused to do so out of concerns that such requirements were "unfair"  and  "a precursor to censorship."

Philippe Trudel today revealed another possible motive: Mr. Davies himself would have been caught up in the obligation to report the work he had done for tobacco industry lawyers starting in 1994. (He was recruited by the notorious Shook, Hardy and Bacon, but said today he had never done background research on the firm.)

This was a financial relationship he did not reveal -- even when he wrote about tobacco litigation as a disservice to smokers in a book he published the same year as the consensus. ("Drugspeak: the Analysis of Drug Discourse, Exhibit 21060.63A)

It seems likely that quite soon another example may take centre stage, in the form of litigation against tobacco companies. Smokers experiencing health problems will seek compensation in the courts, on the basis that due to the "addictive" properties of nicotine, they were unable to stop smoking. This David and Goliath scenario can only be seen as the little man or woman fighting the might of the international tobacco giants. But if the little man/woman wins, it will give credence to a view of smoking as an addiction which will actually make it less likely that others will be able to stop.

He expressed no misgivings about his decision to side with the companies. A victory for the plaintiffs would "send a disastrous message to the world. It will rubber-stamp the idea that you cannot control your smoking habits and you can get paid for continuing to smoke. ... This is where the battle has to be fought and this is why I am here."

"An outlier and not very credible from an historical point of view"?

Mr. Trudel closed his cross-examination by suggesting to Justice Riordan that Mr. Davies' views were so far from mainstream that they were not a safe hook to hang a ruling on.

He pointed to Mr. Davies admitted tendency to conclude that "when everyone agrees about something it must be wrong."  Why, even the "too comfy" theory of evolution was one Mr. Davies wanted to see challenged. (Preface to Drugspeak: Exhibit 21060.63)

He pointed to the conclusion of another expert witness for the defence - historian Robert John Perrins who had said that after the 1989 consensus on the use of the word addiction, "anybody who would say the contrary would be an outlier and not very credible, from an historical point of view."

Last of all, he pointed to Mr. Davies' rambling tirade against a government measures to control tobacco.  "I start seeing gas chambers!" Mr. Davies had told the camera. (Exhibit 1692)

(I stumbled across the same video last weekend when I was looking at material in advance of Mr. Davies' appearance. I decided against making reference to it in the blog, as I thought it unlikely that Imperial Tobacco would have chosen a witness as out of touch with normal public health discourse as the clip made Mr. Davies appear.

Mr. Trudel must have conducted a similar web-search. By the time he showed the video at the end of this morning, I had come around to the opinion that the video was fair to Mr. Davies.)

What more could be said?  Mr. Trudel thanked Mr. Davies, and sat down.

Tellingly, Imperial Tobacco's lawyer, Sonia Bjorkquist, decided against putting any further questions to her witness. Justice Riordan had none either.

Back to other matters

The afternoon session was spent discussing - inconclusively - a few important trial issues. These will be reported later.

Tomorrow, JTI-Macdonald's Mr. Lance Newman is expected to complete his testimony in the morning. In the afternoon some procedural matters. 

Day 205: Like a farmer: out standing in his own field

The second day of testimony at the Montreal tobacco trials by the emeritus professor of psychology, Mr. John Booth Davies, continued to be marked by an unusually high level of courtesy among those in front of the bar.

Something about this witness seems to elicit the kid-glove treatment. Even under cross-examination by the plaintiffs, Mr. Davies was exposed to nothing but simple questions, gently put.

One reason may have been that this is a witness who does not align himself with either the tobacco companies who hired him for his views on addiction, nor with the plaintiffs who are suing on behalf of the everyday smokers for whom Mr. Davies expresses concern.

Another reason might have been his tendency to ornament his answers with off-the-cuff comments. This creates a challenge for lawyers who seek specific answers to specific questions - and no more!

Mr. Davies wandering off script created colourful moments. "I am not here to defend the tobacco industry," said Mr. Davies in reply to a question from Imperial Tobacco's lawyer. This may have surprised her, given his role as a paid witness for her client. "I am quite sure that we would be better off if it [the indusry] did not exist."

Also unhelpful to his clients might have been his assessment that "in terms of public health, the [drug use] which is the most damaging in terms of associations with disease is smoking."

A careful dance

No wonder, then, that Imperial Tobacco Counsel, Sonia Bjorkquist, exercised the same deferential caution she had shown yesterday. Many of the dozen or so questions she put to her witness required little more than a "no" answer.

Does the number of cigarettes someone smokes relate to the likelihood they will attempt to quit? Is there any evidence that the Hooked on Nicotine Checklist will measure the outcome of a quit attempt? Does the number of years a person has smoked affect their likelihood of successfully quitting?

In several forms, Mr. Davies he repeated his view that the pharmacological properties of nicotine gave pleasure to smokers, but did not affect their ability to quit smoking. Smoking behaviour, like other forms of drug use, was driven by "drugs, set and setting". Difficulties in quitting smoking were "not due to pharmacology or Fagerstrom scores - they were due to individual differences in the value that people attach to the smoking of cigarettes and the extent to which other attractors are available to them."

Others might see the fact that smokers relapse after quitting as an indicator of how difficult it was to quit - but not Mr. Davies. He said the fact that about 50% of smokers could eventually quit meant that it was not very difficult to do -- certainly not as difficult as learning to play the violin well.

Nor did smoking leave any lingering pharmacological effects."The brains of people who have been heavy smokers and who have quit after returned to normal after about 12 weeks."  Smokers should be seen as "thinking human beings"  whose behaviour could not be explained by "physiological pharmacological data."

The loneliness of the long-distance anti-addiction theorist

Pierre Boivin

Mr. Davies' dense testimony included many believable observations (such as the influence of social context on drug use, or the benefit of moments in life, like marriage, that help drug users redefine themselves in drug-free ways). But even when his ideas on addiction were not made opaque by academese, they sounded out of touch with the lived experience of those in the court-room.

At the beginning of the plaintiffs cross-examination, Mr. Pierre Boivin looked like he was trying to underscore Mr. Davies' isolation from mainstream opinion by passing under his nose a number the conclusions of many eminent health and legal authorities who have come to an opposite position, and who define smoking as an addiction.

Mr. Davies' did not seem to understand why he was being asked - repeatedly - to state a view that he had already explained at length. It looked like no one had told him what to anticipate during the second half of his testimony here.

There is no-one less intimidating on the plaintiff's team, and Mr. Boivin's laid-back style only contrasted Mr. Davies' increasingly defensive and emotional tone. In that polite British way, he began to sound more than a little impatient: "I am going to sound like a broken record." ... "We are going over the same ground."  The situation was not helped by the absence of a common language between the questioning lawyer and the expert witness - they both speak a heavily accented version of English unfamiliar to the other.

Among the conclusions about the addictiveness of smoking shown to Mr. Davies were reports by the U.S. Surgeon General (Exhibit 601-2010), by the U.K. Royal College of Physicians in 2000 (Exhibit 1587) and in 2007 (Exhibit 1588), by the Royal College of Pyschiatrists (Exhibit 1688), by the Royal Society of Canada (Exhibit 212) - and by even the Supreme Court of Canada.

BAT Nicotine Explained

Exhibit 1689

He scoffed a little when shown that even the tobacco companies now acknowledge that smoking is addictive. (Rothmans, Benson and Hedges' web-site claims that "All tobacco products are addictive" (Exhibit 834) and British American Tobacco's recent booklet Nicotine Explained (Exhibit 1689) acknowledges that "nicotine at all concentrations has potential to cause addiction." )

"I am not used to being asked to comment on PR material from commercial organizations. I am somewhat at a disadvantage."

Mr. Boivin showed Mr. Davies that his views on the factors associated with successful quitting were not supported by research conducted by other social psychologists (Exhibits 1690, 1691), who found that "volitional control" was not enough. 

Against this weight of evidence, Mr. Davies' look increasingly isolated by his views. I recalled the plea of the defence's first expert witness, Jacques Lacoursière:  "I am alone in my thoughts."

Unhooking the red herring

Mr. Philippe Trudel changed tack when he began his cross-examination questions towards the end of the day. 

He led Mr. Davies to reveal how truly extreme his views on addiction were, and that he was not willing to use the term in association with any form of drug use. "Is there such a thing as addiction to drugs?..." "We are going around in circles - without knowing what you mean by addiction, I can't answer your question."

In what felt like the climax of the day, Mr. Trudel challenged the witness to say who, exactly, held the view that nicotine addiction meant it was impossible to quit smoking. And which part of the report by the plaintiffs expert witness, Dr. Negrete, made this claim?

Mr. Davies referred only to Mr. Negrete's use of the terms "enslaved," the “compulsion to smoke" and "the incapacity to abstain" as illustrations this view. Other than that, he was unable to identify any other proponent of the idea he had spent two days attacking. "I cannot offhand demonstrate that this is the case."

Was that the sound of the strawman leaving the room?  

Mr. Davies' testimony did not finish today, as it had been expected to do and will continue tomorrow morning. The parties will later debate motions to allow the plaintiffs to introduce some additional evidence. 

Day 204: The Myth of Addiction

This morning, Eastern Canadian highways demonstrated that a small amount of very cold snow, if mixed with a large amount of wind, can remove meaning from an inter-city bus schedule.

And so it was that I arrived late to the Montreal tobacco trials today -- too late to witness first-hand how a small amount of indignation, if mixed with a lot of hot air, can liven up a Monday morning.

I am told that Mr. Simon Potter, who represents Philip Morris' Canadian operation, expressed his displeasure with the report published in Saturday's Montreal Gazette that the Non-Smokers' Rights Association was asking the Quebec college of physicians to review the appropriateness of Dr. Bourget's testimony at this trial.

Mr. Potter apparently felt that this was a form of "witness intimidation." 

Dr. Bourget has already testified, so I don't quite see how she could have been intimidated after the fact. Mr. Potter, on the other hand, has not. (In defiance of regular legal practice, he is slated to be both witness at this trial even though he is defence counsel in it.) Perhaps he felt that having the world learn that he was "inordinately fond” of roast beef, as the Gazette reported, was a way of intimidating him from making further such disclosures.

Nor is there any sign that 'witness intimidation' was the reason that two other Canadian medical professionals have been pulled from the defence list of  "addiction" witnesses. Mr. Potter recently informed the court that plans had changed and that Montreal psychologist Kieran O'Connor will no longer be testifying later this week. Dr. Alex (Dooley) Goumeniouk, a psychiatrist based in British Columbia, had been dropped from the list several weeks ago.

Pulled from the defence schedule:
Psychologist Kieran O'Connor
& Psychiatrist Alex Goumeniouk

The expert opinions they wrote for the trial remain public documents, as far as I know, although they are currently hard to access. Those who are interested in receiving a copy of their reports can contact me.  

Let's try again!

Today's witness, Mr. John Booth Davies, is thus the tobacco industry's second and the last chance at expert opinion to support their position that almost 1 million Quebec smokers do not suffer from addiction. 

Although his position is not that different than that expressed by Dr. Bourget last week (his conclusions are pasted to the end of this blog), in every other respect Mr. Booth left a very different impression than she did. 

Professor Emeritus
John Booth Davies

To begin with, Mr. Davies is very personable - like one of the eccentric-but-loveable characters in a British comedy like Marigold Hotel or Quartet. Although he is not much older than many other witnesses (he is not yet 70), his manners suggested he came from earlier distant times. (The accent didn't hurt!)

The choice of lawyer assigned to him accentuated this quality of old-worldliness. Ms. Sonia Bjorkquist has a charming and youthful affect. She put her questions to her witness with the same soft kindness that I have watched in social workers interviewing the frail elderly and journalists interviewing aging veterans. 

Justice Riodan echoed this deferential and sympathetic tone, addressing the witness as "sir" and making sure that his physical needs - like a handkerchief - were seen to. By their relaxed body language and gently-phrased questions, the plaintiffs also signaled their acceptance of this witness. I am sure that I was not the only one who thought Mr. Davies would make a fine dinner companion! 

During the voir dire, Ms. Bjorkquist and then Mssrs. Pierre Boivin and Philippe Trudel gave Mr. Davies the opportunity to outline his career as a psychology professor and addiction specialist at Glascow's Strathclyde University, including his many published books and articles. (His CV is Exhibit 21060.1). His most central view on the topic is laid out in his book the "Myth of Addiction", whose message is described by the bookseller Amazon as "addicted behaviour is therefore a form of learned helplessness, not an effect caused by narcotic intake."

Not exactly a friend of industry

Mr. Davies told the court that he was recruited to this trial because the "Myth of Addiction" had brought him to the attention of Mr. Dennis Neutze, a lawyer assigned to witness development for Imperial Tobacco's parent company, BAT. It was only after he finalized the paper commissioned by Mr. Neutze that Mr. Davies was put in contact with Imperial Tobacco's defence lawyers at Osler's. Left hanging was the question of how many other papers from other witnesses-in-development might have been commissioned before this one was selected.

The retired professor said he "had to think about it a long time," before agreeing to testify. His reasons for doing so suggest that he was motivated by end-of-career feelings of tasks not completed. "This case promises to be extremely influential," he said, and a way to "send a message to the world" which challenged the "deterministic pharmacological model on drug use."

Mr. Davies seemed startled by suggestions that his clients might have had any influence on what he wrote. "If there had been, I wouldn't be here."  "I would not wish to be any closer to the tobacco industry than I am at the moment."

Mr. Trudel  pointed out that this is not the first time he has been embroiled in questions about industry influence. As editor of a journal on addiction, Mr. Davies had declined to agree to the Farmington consensus (Exhibit 1686) developed by other addiction journal editors that they would require their authors to disclose their sources of financing. Mr. Davies repeated today the views he had earlier expressed (Exhibit 1687) that such requirements blurred the line between science and morality.

He hinted at strong reservations about the influence of the pharmaceutical industry on tobacco research. He pointed to the long line of pharmaceutical consultancies declared by Karl Fagerstrom and John Hughes (Exhibit 1682), but seemed reluctant to put on record his views on what impact this might have had on their conclusions. "You can read it for yourselves."

He did express concern about the promotion of varenicline (Champix) as a stop smoking medication, given its link with "suicide ideation and suicide attempts.”  I wondered if anyone had told him that the same lawyers who launched this class action are also fighting a class action against the makers of Champix for those same reasons. 

A defender of science

Mr. Davies made frequent suggestions that science was poorly served by other researchers in the field of addiction. 

An article by the head of the U.S. National Institutes of Drug Abuse ("Drug addiction: the neurobiology of disrupted self-control", Exhibit 21061) was denounced as a "sleight of hand." There was emotion in his voice as he claimed this paper "sacrifices science in the interests of making an argument that is ideological and not scientific."

He later pleaded that the rudiments of experimental science were being lost in modern times. "Science is not defined by long words we cannot spell. The principles of science can be written on the back of an envelope. I believe that sections of the population define science precisely in terms of those things -- here is a big machine and a man has a white coat on so it must be true!. That is a fundamental error."

He cautioned that others who researched addiction did not adequately understand the need for a measurable "outcome variable."  He included the opinion prepared for the plaintiffs by Dr.Juan Negrete, Exhibit 1470.1 and 1470.2, in this category. 

"You can't cross-reference addiction against dependence because they are both concepts – I can't see either of them." He also disagreed with Dr. Negrete's description of the impact on smokers. "Words are too emotional. It's not about feelings and emotions - science is about facts."

Attribution theory and the addicted state

At the core of Mr. Davies' views is a focus on "the explanations people give for their actions."  (Expert Report, Exhibit 21060)

He explains that Attribution Theory allows drug use to be examined in the context of the "discourse" that smokers offer as they explain why they use substances. To speak of addiction relieves individuals of the ability to quit, he argues, and to say someone "can't quit" is to be unscientific. "We cannot, however, observe that a person cannot stop; only that they failed to do so."

Mr. Davies suggested that there was no qualitative distinction between addicted and non-addicted substance use. "If we like a drink on occasion, we have something in common with those at the other end of the (alcoholic) spectrum."

It was not addiction or compulsion that drove smoking behaviour, he said, but the time-lag between the pleasure of smoking and its "negative reinforcers". "The satisfaction of smoking a cigarette now outweigh the possible valence of lung cancer late in life." 

He acknowledged the neurological properties of nicotine, and described the chemical bonding of nicotine to receptors in the brain. But such "brain changes" were not a form of disease. Going down the street would result in brain changes, he said, "but this does not mean that I can't stop going."

He qualified that such changes were very localized, and not a form of intoxication. "it is not as if the whole brain is subverted ... attitudes, beliefs, motives stay much the way they were before."

He looked to memory, not brain activity, as a reason that people returned to the behaviour. "Like a cat that has tasted fish, a human who has tasted cocaine may be reluctant to give up." 

He said that the suggestion that smoking resulted in loss of autonomy was "helpful if you are trying to sue the tobacco industry." It was not very beneficial to those who might as a result lose belief that they could stop smoking, and harmful to "youngsters in deprived parts of cities,"  who might otherwise "change their self damaging behaviour."

A philosophical hold-out

Although the word "existentialist" was never used, I felt that underpinning Mr. Davies' opinion was the heady humanism that defined the social sciences in the 1960s. 

Like other products of that era, he spoke with compassion and concern about those who were economically or socially deprived. He identified the gap between upper-class academics (although his accent suggests he could be considered one) and disadvantaged drug users. No other witness has brought class into this trial so acutely. 

He rooted his distinction between voluntary and involuntary actions in philosophy. "The philosophical difference between something that is impossible and something that is difficult to do is fundamental. ... difficulty is in a different phenomenological realm than impossibility."

Mr. Bjorkquist is expected to finish her questions for Mr. Davies tomorrow morning. The cross-examination will follow. On Wednesday, a few procedural issues will be discussed. 

John Booth Davies' conclusions

• Smoking can be a difficult behaviour to quit, but not an impossible one.

• Smoking is action. That is, it is goal directed and purposive; it does not simply 'happen to' people.

• The idea of smoking behaviour as deriving from a pharmacologically-driven compulsion over which there is no control does not fit the facts.

• Smokers have quit the smoking habit in very large numbers and continue to do so.

• By far the largest majority of smokers who quit smoking do so without help (e.g. psycho-therapy, counselling, nicotine replacement therapy, etc.) of any kind.

• Not all smokers experience withdrawal symptoms, and such symptoms do not predict either relapse or successful quitting.

• The pharmacology of nicotine explains brain processes, but does not explain the reasons why people smoke, nor does it predict future behaviour (i.e. continuing to smoke or quitting) with regard to smoking

Day 203: Like shooting fish in a barrel: surprisingly messy

Post-script:  Professional testimony and professional codes of conduct                                                                                                                                                    During Wednesday's hearing, plaintiff lawyer Bruce Johnston had challenged Dr. Bourget about her adherence to the guidelines set by the licencing body for Quebec physicians (Collège des médecins du Quebec). On Saturday, the Montreal Gazette reported that a complaint against Dr. Bourget was filed with the college by the Non-Smokers' Rights Association.

----------------

I'll put my bet on the record: if Justice Riordan is to write harshly about any of the expert witnesses who have testified at the Montreal tobacco trials to date, Dr. Dominique Bourget will be at the top of that list.

Her cross-examination today** by plaintiff lawyers Bruce Johnston and Philippe Trudel was on occasion hilarious but most often it was just painful to watch. 

Standing facing the judge, the witness was not able to observe the reactions of the audience behind her. It was sharply divided. On the tobacco industry side of the aisle, where there were so many lawyers present that some spilled over into the public gallery, everyone watched stone-faced.

The lawyers on the plaintiffs side were more reactive.  Unseen by the witness, they would respond to her answers with exchanged glances - their jaws subtly dropping or their eyes tellingly wide.  Three of us sitting on the plaintiffs' side of the public gallery had more difficulty stifling our laughter or our comments. It was a school-girl moment.

A globalized defence

North Carolina lawyer
John Still

There were some John Grisham moments too.  Yesterday, Dr. Bourget had revealed that she had been recruited to testify at this trial by an American lawyer, John Still.

The description of his work in Winston Salem and his "practice on witness and case defense development" made me think of Rankin Fitch in the Runaway Jury.

If Mr. Still is reading this blog, he will be happy to learn that Dr. Bourget denied that her relationship with him was one of "witness development". He certainly would not want to be credited with the result.

The feeling of behind-the-scenes collusion amongst companies was increased by Dr. Bourget's admission today that although she was recruited by a U.S. law firm, she eventually sent her bills to the U.K. firm, Freshfields, whom other witnesses have also identified as their billing client.

And, like many other consultants to the industry who have testified here, Dr. Bourget seems not to be able to locate the paperwork that outlined her tasks. It doesn't feel like coincidence.

The hand that holds the hand that holds the pen

Dr. Bourget was vague in her descriptions of the approach she took to researching her expert report, or how she selected the scientific papers she used as "authorities" for her conclusions.  She admitted to having received some material from Mr. Still, but did not identify which ones.

Bruce Johnston chose one citation to illustrate the likelihood that her opinion was shaped by her clients. The source for her claim that "The main criticisms over the concept of addiction have to do with the lack of definition which is scientifically useful and devoid of moralistic connotations" is an article now almost 5 decades old. It was co-authored by the now disgraced Maurice Seevers.

After persistent questions, Dr. Bourget finally acknowledged that she was "not able to say exactly where she got the document."  She insisted she had written the paper entirely by herself, including the preparation of the bibliography. But the source she gave for the Seevers paper (Pharmacology) was different than the one that was included among the "source" material for her report.  She finally she could not explain why the source cited in her paper  was different than that which was supplied to the court. (WHO bulletin) (Exhibit 40497.5) 

Acknowledging a mistake in the bibliography, as embarrassing as it is, would have been a far more helpful explanation for her clients than the one that was left in the air: that she, like Maurice Seevers, had become an industry mouthpiece and not an independent voice.

This was only the first of many times in the day that Dr. Bourget's unwillingness to acknowledge that she was wrong or that she didn't know cemented the impression this witness would not tell the "whole truth." On top of her questionable expertise in addiction established during the voir dire yesterday, this was a second strike against her.

Yes, Minister?

Bruce Johnston is occasionally rebuked for interrupting witnesses. Early this morning his patiently not doing so helped establish a third strike against Dr. Bourget: that she was willing to obfuscate instead of giving a clear answer.

The question put to her by Mr. Johnston seemed straightforward: what was the distinction between "brain disease" and "disorder of the brain."  The long answer may have had meaning, but it was amusingly unintelligible - full of flowery phrases and run on sentences. I had just jotted "Humphrey Appleby" in my notes, when a colleague whispered in that he too found that she was avoiding the point:  "she sounds like a politician."

After a few minutes, Justice Riordan pushed the pause button. "I'm sorry - the question was?" Later, he gently instructed her to obfuscate less. "If we want to get you out of here today you are going to have to answer the question the way it is asked."

The party line

PMI Spokespersons' Guide
Exhibit 846

Bruce Johnston: Would you agree with me that, although quitting can be difficult, it's a matter of making a personal decision of whether or not to smoke?
Dominique Bourget: I think it is a quote from my report, so I do agree with this.
Bruce Johnston: Actually, you said that it's a quote from your report, but it's also a quote from something else.

The plaintiffs brought out a "spokespersons guide" developed by Philip Morris International in 1990 (Exhibit 846) to help illustrate how closely aligned Dr. Bourget's testimony was with the strategic positioning of that company. One of the two companies which engaged Dr. Bourget is Philip Morris International's Canadian operation.

She did not take the opportunity to nuance her view, and repeated that she agreed with these positioning statements. "People who smoke are individuals with their full rights, and as far as we know, these people have their capacity to decide and are in control of their behaviour and decision-making."

When is an authority not an authority?

Although Mr. Johnston was unable to get few clear answers to any question he put, he was able to draw Ms. Bourget into repeating patterns of non-answers and her variable standards for scientific proof.

When shown (many) scientific publications with conclusions that differed from her own, she sought refuge in not having read the papers that were referenced within them. Her refusal to comment on papers whose footnoted references she had not read soon palled.

Although she insisted on the DSM V (Exhibit 40499) being the authoritative consensus that tobacco addiction was a term no longer used, she rejected other findings of the DSM because the references for them were not cited. (The DSM, like other practice guidelines, is developed by expert committees, and is not foot-noted).

She said, for example, that withdrawal symptoms from smoking were "mild and transient" and were experienced by "very very few people." When shown the DSM view that "approximately 50% of tobacco users who quit for 2 or more days will have symptoms", she suggested she knew better. She said this was not her clinical experience and that unless she knew "where these numbers come from" she would not agree with the DSM.

Bruce Johnston showed her the most recent Surgeon General's report (Exhibit 601-2014), released earlier this month. In this trial, as elsewhere, the Surgeon General's reports have been treated as an exalted authority. Mr. Johnston pointed out that, despite Dr. Bourget's assertion that "there is a medical consensus" not to use the term addiction, this recent report continued to do so.

She disagreed with this and other conclusions of the Surgeon General's report, including that nicotine "is a pharmacologically active agent that has acute toxicity."  "I don't think it has acute toxicity, because we know that nicotine does not cause intoxication," she said.

Young brains

In other venues, Dr. Bourget testifies frequently on issues of mental capacity. This expertise was appealed to by the defendant lawyers to support her opinion that people can make seemingly irrational decisions without their mental capacity being in doubt, and that smoking in no way hinders mental capacity. In her explanation of this, she referenced the role of the cortex region of the brain to control behaviour.

In the last part of their cross-examination, Mr. Johnston and Mr. Trudel showed her several recent research findings that challenged this view, and gave her the opportunity to say whether these might have altered her view. (This rhetorical device is often used in this trial to challenge an expert opinion).

These included the Surgeon General's findings that "nicotine exposure during adolescence, a critical window for brain development, may have lasting  adverse consequences for brain development," (Exhibit 601-2014), recent studies on brain development and risk taking (Exhibit 1684), and conclusions from substance abuse authorities that nicotine changes brain cells. None of these altered her opinion.

She was also shown the position statement of Philip Morris International in support of preventing smoking among youth. (At this point Simon Potter added his own post-lunch humour, insisting that Philip Morris International had nothing to do with Rothmans, Benson and Hedges! "It is false to say that that company is the parent company of RBH!"). 

Even this position was too moderate. Dr. Bourget said that "older teenagers", which she defined as "fourteen and over," were often old enough to make such decisions.

"I am not saying that it is desirable," she qualified, but situated the decision to smoke together with others that young people are allowed to make, such as decisions on medical treatment, on the intention to commit a crime, on their course of studies, on giving consent to sex.

An attempt at salvage

As she stood up to exercise her right to ask a second round of questions to her witness, JTI-Macdonald counsel Ms. Kirsten Crain exuded a surprising composure at the end of a long and messy day of questions and non-answers.

She asked Dr. Bourget to reaffirm some key messages:  Dr. Bourget's view that "anyone can quit" is also held by Health Canada (Exhibit 40054A, 40502). Individual diagnoses are required before a smoker can be said to suffer from 'Tobacco Use Disorder.'  It is necessary to suffer from some personal impairment before such a diagnosis would be appropriate.

Simon Potter asked the final questions. He wanted to know whether other drugs had more withdrawal symptoms that lasted longer than tobacco use, and whether they were more severe.  Finally, her answers were short and to the point. "Yes. They can be life-threatening in certain cases, with other drugs."

Dr. Bourget was the first of three experts on addiction who will testify for the tobacco companies. The second, John B. Davies, will testify on Monday and Tuesday next week. Montreal psychologist Kieran O'Connor is scheduled for Wednesday and Thursday.

**  This post was written on Friday, January 24th, but back-dated to provide consistency in indexing.

Day 202: Not Corporately Responsible?

Forensic psychiatrist Dominique Bourget has been involved in more than a few news-grabbing trials during her career as an expert witness on behalf of people who wish to be found "not criminally responsible" or otherwise escape full penalties for the crimes that have brought them before a court of law.

Psychiatrist and
tobacco-industry witness
Dominique Bourget

There was the priest Aime Bergeron who sexually assaulted young boys. The Nova Scotia coke-head,  Paul Rocheleau, who burned and dumped a fellow party-goer. The French language student, Iago Marcu, who shot the teacher who spurned his offers of romance. And, most recently, the Quebec cardiologist, Guy Turcotte, who stabbed his two children.

But in the "hundreds of times" that she has testified in court, this 54-year physician has never once been asked to speak about addiction or smoking, the subjects for which JTI-Macdonald commissioned her expert report for the Montreal tobacco trials.

Her questionable qualifications to do so were the focus of an animated and spectator-friendly hearing this morning. They may also result in Justice Riordan giving little credence to her testimony that, while presented as an independent medical opinion, reads very much like tobacco industry propaganda.

Voir dire? Oh, dear.

Before a judge decides whether a paid consultant can act as an expert witness, lawyers for all sides are given an opportunity to say why this accreditation should or should not be granted.

The task of presenting Dr. Bourget's qualifications today fell on JTI-Macdonald counsel, Kirsten Crain. (Ms. Crain has, as far as I can remember, only been at the trial on one other occasion - which was during the testimony last April of the plaintiff's expert witness on addiction, Dr. Juan Negrete.)

Ms. Crain introduced Dr. Bourget's quailfications to the judge in a text-book - read flavourless - way. She highlighted the professional accomplishments in the curriculum vitae (Exhibit 40496), and invited the 54-year old Dr. Bourget to link her work at the Royal Ottawa Mental Health Centre to tobacco use.

We learned that about one-fifth of Dr. Bourget's patients smoke, and an unspecified percentage of those are diagnosed with "tobacco use disorder," the term newly adopted in the May 2013 version of the Diagnostic and Statistical Manual of Mental Disorders (DSM V), (Exhibit 40499).

Dr. Bourget said she didn't know any psychiatrists who specialized in substance abuse/nicotine, and that treatments for smoking were generally provided by family doctors or addiction counsellors. (I know of at least two psychiatrists who have specialized in nicotine and smoking, but perhaps I get around more.)

We were also told about Dr. Bourget's deep experience in the "application of psychiatry to legal issues," especially in assessing the mental capacity of people to stand trial, to be charge of their own finances, to be in charge of their medical treatments.

With this short introduction, Ms. Crain asked Justice Riordan to qualify Dr. Bourgoet as "an expert in diagnosis and treatment of mental disorders, including what is now called tobacco use disorder as well as an expert I the evaluation of mental capacity." 

It was at this point that the fun began.

La médecine d'expertise

From his first question to Dr. Bourget, Bruce Johnston made clear that he did not think this woman was appropriately qualified. This is, I think, the first time that the plaintiffs have used the voir dire process to cast doubt on the basic competency of their opponents' consultants, instead of casting doubt on their conclusions.

Mr. Johnston challenged Dr. Bourget to explain how her acceptance of the role was consistent with her obligations under the guidelines for such work that have been established by the licensing board for Quebec physicians. (Exhibit 1681). As the rules were displayed on the overhead screens, there were more than a few areas where her actions seemed inconsistent with these professional standards.

His second approach was to speak about what was plain and obvious from Dr. Bourget's resumé - that she has an impressive record of research, publications and work in criminal issues, but has essentially no record of work on substance abuse or tobacco. She had no expertise to offer.

Surprisingly, given her long experience in court, Dr. Bourget seemed ill-equipped to answer. With her refusal to give direct answers, and her stubborn refusal to acknowledge the obvious, she seemed determined to paint herself further into the corner of prevarication. 

She said the College's standards were "non compelling." It took repeated questions, including from Justice Riordan, before she would admit the obvious fact that she had more acknowledged expertise on homicide and other violent crimes than she did on substance abuse. She would not elaborate on her qualifications, other than to appeal to the general expertise of psychiatry. She was unable to give a clear explanation of when she was hired, how the focus for her work was established, or what type of instructions she received from the law firm which engaged her. (She was recruited Mr. Mr. John Still)

She did not do well on the very simple pop quiz Bruce Johnston added to the end of his questions. When asked to identify "one scholar" in the field of nicotine she scrabbled through her notes. When asked about Neil Benowitz, she had little to say except that she had heard of him.

Nothing to appeal. No reason for delay

In contrast to the vibrancy of his questions, Bruce Johnston was very low key in telling Justice Riordan that the plaintiffs were contesting Dr. Bourget's qualification. He did not argue the point as though he intended to win it. Nor did he look disappointed when Justice Riordan nonetheless qualified her as an expert.

At this late stage, neither judge nor plaintiff seem to have an appetite for non-important rulings against the tobacco companies. There were hints, however, that Dr. Bourget's opinions may be dismissed at a later stage. "Your contestation goes to probative value," Justice Riordan reassured Bruce Johnston.

An independent medical opinion! ?

The rest of the day folded more smoothly. Ms. Kirsten Crain asked Dr. Bourget questions that repeated or elaborated on her expert report and its addendum. (Exhibit 40497 and 40498). (The conclusions of her report, as she summarized them in the Executive Summary, are pasted below). It was familiar ground, given that the same points had been made during JTI's cross examination of Dr. Negrete last year.

It struck me that the defendants are simultaneously trying to complexify tobacco addiction (by entangling it in the shifting definitions, and medicalizing its diagnosis) and also to simplify it (by emphasizing that anyone who really wants to quit will be able to). 

Dr. Bourget's remarks, and their subtle framing, reinforced the positions historically taken by tobacco companies. She did not identify the harmful health effects of smoking, except to identify it at the bottom of the list of reasons her patients might want to quit, behind the cost of smoking and the pressure of being in a smoke-free facility. When asked what motivated smokers, she did not identify cravings or habituation. It was because smokers believed that it gave them "better attention levels," or "because they like to hold the cigarette, like to taste it, like to smell it," that they smoked.  

She stressed that smoking must be associated with a "clinically significant impairment" before it could be medically diagnosed as a disorder. She did not identify any such impairments. To the contrary, she stressed ways in which smokers were not impaired. Smoking did not affect mental capacity, for example.

Anyone and everyone can quit smoking, she said. Withdrawal symptoms last only 2 to 4 weeks, and even these are not experienced by all quitters. It didn't matter how long someone smoked or how much they smoked. She did not agree with Dr. Negrete that smokers are "enslaved", saying they "retain the ability to make other decisions and other choices."

The brain chemistry that is engaged in smoking is no different than for other pleasurable activities. "What we know is that for the brain it does not distinguish whether it [pleasure] comes from tobacco or something else. A rewards is a reward - the same mechanism and same system is activated to different degrees."

She compared smoking to her teenager's fondness of computer gaming. In either case. mind over matter was the solution. "It is the cortex that tells your animal brain to stop."

Dr. Bourget's cross-examination takes place tomorrow. Two additional expert witnesses are scheduled to testify about addiction for the defendants next week - John Davies and Kieron O'Connor.

Executive Summary (from the report of Dr. Dominique Bourque - Exhibit 40497)

• The concept for smoking behaviour (including the definitions of addiction, habit and dependence) has changed over time. None of these definitions separate those who can control their behaviour from those who cannot; nor will it separate those who will experience difficulty in quitting from those who will not;

• Smoking does not adversely affect the executive functions of the brain, and does not impair a smoker's opportunity or ability to understand an issue, to appreciate its significance and to reason. It does not impair cognitive judgment;

• A smoker's capacity to decide to quit and to implement that decision is not adversely affected by smoking;

• Whether a smoker successfully implements a decision to quit smoking is a question of motivation and self efficacy; this can vary over time and depends on circumstances;

• Changing a behaviour, particularly a pleasurable, repetitive behaviour can be difficult for some people but such difficulty does not indicate one lacks the ability to change;

• Regardless of whether a smoker can be classified as addicted or nicotine dependent, smoking does not deprive them of the ability to choose to stop. It remains a voluntary behaviour choice for the individual, for which he/she should be considered responsible from a decision-making perspective. This is so even if, as is common, the decision voluntarily taken appears to others not to be a sensible one or is one that the smoker subsequently regrets;

• A classification of addiction does not (and does not purport to) explain why a smoker continues to smoke, merely categorises the clinical impact of the decision on the smoker at that time. It is not predictive of a smoker's ease of quitting;

• Evaluations of people's ability to reason, appreciate and understand issues must be made at an individual level by a fully trained clinician;

• Whether the failure of an individual to quit could give rise to psychological harm such as a loss of self esteem requires an individual assessment including assessment of all other issues or personality traits that could have contributed to such a loss or harm (if proven).

Day 201: Proving the existence of rational smoking

At the beginning of the week, before Kip Viscusi began his testimony at the Montreal tobacco trials, my colleague Pierre leaned over to share a joke about economists.

Why is economics a theology and not a science? 

Because if it were a science, they would have tried it on animals first.

Mr. Viscusi's second and last day of testimony was given over to his cross-examination by plaintiff lawyers André Lespérance and Philippe Trudel. It often resembled a theological debate. 

This impression of religion-over-science was only somewhat aided by the church-like structure of the courtroom, with its centre aisle and the bar dividing onlookers in the nave from the officiants in the chancel. The medieval clerical robes worn by lawyers and judge didn't hurt either.

What really gave it the air of a debate among Jesuits was philosophical thrust of the questions thrown at Mr. Viscusi, and his apparent willingness to have all facts serve to prove, if not the existence of God, then at least the infallibility of the consumer market. 

For someone who was being put through the epistemological wringer, Mr. Viscusi looked not too bad at the end of the day. He kept to his script and kept his composure. But his conclusions looked considerably the worse for the exercise, with the stuffing knocked out of some of his core assertions. 

Act global. Be fuzzy on the local.

One of the more awkward moments for Mr. Viscusi came late morning, when Mr. Trudel began his round of questions with a focus on when Mr. Viscusi had been engaged, what he had been hired to do and who had been his contact.

Again, this witness seemed unrealistically unable to provide details about his activities. Yesterday's statement that he had testified for "10 to 15" trials was a more precise answer than he seemed able to muster for questions about the process of writing this report less than a year ago.

He wasn't sure when he had first been approached. He wasn't sure if he had received a written mandate from the companies. He seemed unsure of who had framed the questions he would answer until it became clear during discussions that it would be better for his clients if it were lawyers who had done so. At that point he remembered that in fact it was the lawyers.

He knew he had been contacted by John Blain of Freshfields, but wasn't sure which company Mr. Blain represented. (Freshfields is based in the United Kingdom. It's client is JTI-International. Mr. Blain has been previously spotted in this court, during the first appearance of Mr. Hoult). "I don't keep track of clients," Mr. Viscusi said.  

Several times he was unable to say why or how certain documents were included or excluded from his review. Some came from the report presented by Raymond Duch last year, others (like findings from Imperial Tobacco's Viking report) seemed to have appeared in other work prepared by Mr. Duch.

Court rules mandate that source material for expert reports be shared with opponents - so the fact that Mr. Viscusi could not recall how he received source material, or what he might have done with it was significant. Even more fishy-sounding was his explanation that he destroyed all the electronic records that were provided to him by the lawyers. He said this was because he was not allowed to keep too much material on his laptop, and had a "modest allotment in terms of what we are allowed to keep on our computers" by his university. You could almost hear his credibility bang down a few notches with that comment. 

Unravelling the knotted arguments

Although it is padded with many comments on the way people respond to risk communication, the core of Mr. Viscusi's expert report (Exhibit 40494) is a tightly bound theory.

Smokers make rational decisions to smoke. They make these decisions based on their perceptions of risk and benefit. Their perceptions of the risks of smoking are much greater than the true risks. Giving them more information about the risks of smoking would actually reduce their perceptions of risk and would therefore lead to more smoking. 

Mr. Lespérance and then Mr. Trudel challenged this theory by poking at its assumptions and embedded components, and showing where these were inconsistent with other evidence at this trial. Do smokers over-estimate the risks of smoking? Are Mr. Viscusi's statements of the "true risks" accurate? Do smokers really not benefit from warnings? 

They also challenged the credibility of the man by asking questions that exposed his unwillingness to provide frank answers about the events that brought him to this courtroom, and about issues that were excluded from his report.

At times, the exchanges were tense and intense - the questions put with incremental forcefulness and a witness who frequently feigned misunderstanding. More than a few times, it was only after Justice Riordan repeated questions that Mr. Viscusi responded. His squirming away from answers may have left a more lasting impression than the answers he gave.

The few occasions that Mr. Pratte intervened with objections provoked uncharacteristic rebukes from Justice Riordan, who spoke more harshly against "talking objections" than he previously has. (Such objections are disguised hints to the witness).

Do smokers over-estimate the risks of smoking? 

Mr. Lespérance showed Mr. Viscusi measurements of smokers' perceptions of the risks of smoking, including some that were undertaken for Imperial Tobacco. (Exhibits 987.12, 987.6, 1547.1, 40064.61). 

These reports have been much talked about at this trial, but it would appear that no-one informed Mr. Viscusi of them. This lack of familiarity did not stop him from quickly identifying methodological flaws that would explain why all this research on Canadian attitudes and beliefs came to different conclusions than his own.

Mr. Viscusi acknowledges that every cigarette smoked presents a risk - "there is no level of smoking that proses zero risk to all risks." But the finding from Imperial Tobacco's long-running survey that 80% of smokers thought it was possible to smoke three or more cigarettes without risk did not suggest that smokers underestimated this danger. The question was flawed - it was not "probabilistic."

Similarly, the finding that fewer than half of respondents believed that smokers died at a younger age than non-smokers was invalid in his view. It was a "badly worded question – it should be worded, like my questions, in terms of life expectancy."

A 1990 Environics report which showed smokers unable to state many of the diseases caused by smoking was criticized for being an open-ended question format. "That's different than taking people through laundry list. People say one or two things to get the surveyor off their back. It doesn't  mean that people are not aware of the risks, it just means they didn’t bother to mention them." 

Imperial Tobacco's surveys found that smokers believed that they only risked losing a couple of life years to smoking. (Exhibit 987.21) Again, he found fault with the survey methods. "This is not a reliable way to ascertain life expectancy." 

Did Mr. Viscusi underestimate the real risk of smoking?

The fundamental  underpinning of Mr. Viscusi's argument is that health authorities place a lower risk on smoking than smokers do. He cites the Surgeon General as the source of the "true estimate" that between one-sixth and one-third of smokers die as a result of tobacco use, and the Institutes of Medicine that the average smoker actually loses 6.6 years of life. 

He struggled, however, to remember exactly how he got those numbers, or to produce the exact sources from the American authorities. He had a much clearer memory of the flaws of other researchers who reached different conclusions. These included the conclusions of Doll, Peto and others who concluded that one-half of smokers died from tobacco use, and those who did lost an average of 15 years of life. (Exhibit 1545, 977)

Addiction and the rational decision to smoke.

Mr. Viscusi's report does not talk about smokers' knowledge of addiction, or the potential impact of warnings in this area. Given that the Létourneau half of this joint-trial is solely about addiction, it was a curious oversight.

To Mr. Lespérance's questions of why it was excluded, Mr. Viscusi explained that he "did not know it was part of the case."  Moreover, it was not "not a probability of health outcome – it is a property of cigarettes."

He agreed that smoking was addictive -- but that this only happened after 1988, when the Surgeon General labelled it so. He was unwilling to state whether addiction itself could be considered a disease -- only, he said "if it is something that caused death… if addiction to cigarettes independent of any other risks killed you, it would be included."  

Addiction does not seem to figure prominently in his model of the rational decision to smoke. This decision, he says, is made every time a smoker lights up. Addiction plays a role in so far as it increases the costs of quitting. In these cases, the smoker makes "a rational decision that you are not willing to put up the costs of giving up compared with the benefits."

Against these costs the smoker would consider the benefits, and Mr. Viscusi acknowledges that "nicotine is one of the benefits of smoking to smokers." He resisted the use of the term "fix,"  and bristled at comparisons between heroin and nicotine. 

He also resisted the idea that smokers might "lose control". When shown the ruling of the Supreme Court in the Insite decision that supported the understanding that "addiction is a disease in which the central feature is impaired control over the use of the addictive substance," he began to parrot the explanation that this court has frequently heard from tobacco industry witnesses. 

"More people who have quit smoking than those who current smoke. Whatever addiction there is does not mean it is impossible to quit."  He soon went a step further, saying that those who quit are willing to incur the costs of doing so, and those who continue to smoke do so "because they like smoking."

His nonchalance contrasted with the last exhibit shown by the plaintiffs -- the lament of then VP-marketing Bob Bexon, who saw troubles ahead for Imperial Tobacco because the only remaining benefit to smokers was "the “drug” effect of nicotine. ...  Because they are chemically induced through nicotine smokers see these positives as reflections of their own personal weaknesses. They get them but they are not happy about it.  If our product was not addictive, we would not sell a cigarette next week in spite of these positive psychological attributes." 

Mr. Viscusi would not bite. He showed little reaction as he repeated his view that smokers understand the benefits of smoking. "It just means that this is what they enjoy. The reason they smoke is the drug effect." 

Effective communication 

Mr. Viscusi was adamant that people cannot process risk information that is expressed in numerical form. "Things like '40,000 people die from smoking.'"  The reason he gave was that people have to imagine the denominator. Giving a number out of 100 is useful he said -- but when the proportion is smaller than one-hundredth, difficulties arise.

He was similarly adamant that the concept of relative risk was inappropriate as a method to inform smokers. He defended his use of used data from a study of young American smokers that showed a high level of belief about deaths from lung cancer among smokers (six times greater than the "real risk"), while leaving out that the same youth had an even greater overestimation of the risk of death from lung cancer among non-smokers (more than sixty times the real risk). 

"The public doesn’t need to know the relative risk. They need to know the absolute probability. Relative risk is not meaningful." When Mr. Lespérance pointed out that he had stressed the importance of communicating relative risk in his arguments against plain packaging which he prepared for the CTMC (Exhibit 1680), he said it was a "different issue. I was talking about relative risk of lower or higher tar cigarettes."

Warnings don't make a difference

In a trial about cigarettes and tobacco marketing, there have been very few times when cigarette packages have actually been displayed or handled. This afternoon, Mr. Trudel showed Mr. Viscusi a few current cigarette warnings, and asked him to open a carton of cigarettes and comment on the warning he randomly selected. (A good proxy for the experience of a smoker!). 

Although he acknowledged the ways in which these warnings provided informational or sought to change the social acceptability of smoking, he refused to admit that they might reduce smoking rates. The plaintiffs did not, curiously, ask him to comment on recent Canadian studies which have measured the benefit of these new labels, i.e. Azagba et al. and Huang et al.

The Final Words

At the end of the day, Mr. Guy Pratte (JTI-Macdonald) and Mr. Simon Potter (Rothmans, Benson and Hedges) were able to ask their witness questions that allowed him the opportunity to restate their theory of warnings -- that they would have provided no benefit and would possibly have resulted in more smoking.

More health information "from a credible source would cause people to lower their risk beliefs," Mr. Viscusi obligingly repeated. The effect of such aims at deterrence would "decrease the expected cost of smoking, and thus increase smoking prevalence."

Mr. Viscusi faced two more questions on this theme:  Mr. Lespérance asked him what the result would be in a scenario where smokers actually underestimated the risks of smoking, but were then told that they were overestimated these risks. Mr. Viscusi acknowledged that if they were "convincingly told", the result would be "reduced risk beliefs and increased smoking behaviour."

Justice Riordan asked him to compare the likely impact of the specific warnings that were required by the government after 1989, and the general warnings that the industry voluntarily placed on packages in the preceding 17 years. "If you put them side by side at the same time, the specific would have more impact?" he asked. "Without question," said Mr. Viscusi.

Schools of economic thought  

Economists' capacity for debate is almost as legendary as that of lawyers. Both may have been at work today. In addition to Mr. Viscusi, there were two other trained economists at the centre of much of the day's debates.

Much earlier in this trial, Justice Riordan had revealed that he had once studied economics. (As I remember the way he said it, he also strongly deprecated any claim to expertise in the domain!). A quick search on the Library of Canada dissertation data base turfed up the thesis he completed in 1972 to qualify for a masters in economics from McGill University.

The topic was Canada's foreign aid, and what could be done to make it more efficient and more generous. A far cry from Kip Viscusi's concurrent neo-liberal formation at Harvard!.

A decade later, Mr. André Lespérance also graduated with a masters in economics. His was from the University of Montreal, and completed after he completed his law studies.

A change of topic tomorrow. Psychiatrist Dominique Bourget will testify on addiction. She is the first of three expert witnesses scheduled by the defence on this topic.