Tuesday, 28 January 2014

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 16901691), 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.