Thursday, 23 January 2014

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.