Thursday, 27 February 2014

Days 211-212: Horse trading? Not between this bunch.

There were some surprising moments in the Montreal tobacco trials during today's half-day discussion.

A potential client expressed surprise that Quebec trial documents were only available in French (weren't we bilingual?!) . Plaintiff lawyer André Lespérance said he was surprised at what he saw as inconsistencies in Imperial Tobacco's criteria for evidence. Justice Riordan was surprised that "after all these years at trial"  Mr. Lespérance was still capable of being surprised.

As for me? My surprise was that I had missed an entire day of this unique trial. Yikes!

At the end of last week, Justice Riordan agreed to "invest" a two-day break to allow the parties to negotiate their respective lists of orphaned documents, with a view to facilitating the process of these being entered under the provisions of Article 2870 of Quebec's Civil Code. (This is the section that allows evidence to be entered, even if there is not a witness to testify about it).

The horse trading appears to have gone badly, and someone must have made the call to stop pouring good time after bad. Justice Riordan was called back to arbitrate, and the court sat without onlookers on Tuesday, February 25.

My embarrassment at being AWOL (honest, boss, there was no way I could have known!) was countered by the relief at having been saved from what looks to have been a rather unpleasant round of prolonged but mostly unsuccessful objections.

Justice Riordan established criteria for 2870 documents in two written rulings - one on January 10, 2013 and the other on January 28, 2013. Later last year, the Court of Appeal said that could not/would not reconsider his decisions.

Nonetheless, some grey zone must have remained -- and a large enough zone for decisions this week that seemed to surprise both sides.

Questions raised - even today - seemed aimed at further stirring the pot about the categories of evidence in this trial. The meaning of "2M" documents was again discussed - almost 2 years after the "2 May 2012" ruling that created this category of evidence. And a new category was coined this week: if I understand correctly, exhibits with the suffix "AUTH" are documents whose authorship or progeny is acknowledged while the "truth of the contents is not."  

Tuesday's List

The "2870" documents reviewed on Tuesday were those proposed by the plaintiffs' side. Most of these had been introduced during their cross-examination of defendants' witnesses over the past 10 months, with the discussion of their eligibility as evidence deferred until this week.

Among these are business records which did not survive in the Canadian files of Philip Morris, but which were safeguarded by its headquarters and which are now available on the Legacy site.

Exhibit 1566 is one such delightful example - it captures opinions of one company about the other, and of all companies about the government. Marc Lalonde was apparently a Health Minister approved of by Imperial Tobacco, and a rationale for a strategy to use "time or procrastination to delay any given government request."

The plaintiffs were not successful in persuading Justice Riordan on all of the forty-plus documents they put to him. Three of these were struck from the trial record and "unfiled". (Exhibits 15981625, and 1633 are no longer part of this story!)

Today's List

For three other documents, the plaintiffs were instructed on Tuesday to make clearer why it was not possible to have the author of the document testify. This morning, after what sounds like some late-night calls to other sides of the world, they returned with some colourful stories of unavailability.

One author - BAT lawyer Nick Cannar - had pulled up stakes from his last known address in Australia. He could not be found, even by the realtor who managed the sale of his house. As a result, a memo he wrote describing document destruction at Imperial Tobacco and the struggles between research head, Patrick Dunn, and company lawyer Canada, Roger Ackman, is now fully on the record. (Exhibit 1577).

The other potential witness was Peter N. Lee, a consultant statistician to UK tobacco companies. Mr. Lee had responded to a request about his availability by asking whether he would be reimbursed for his time and expenses. Having learned that fact witnesses receive no compensation other than travel costs, he informed the plaintiffs that it would be a "horrendous waste of time" for him to come to Montreal. Nonetheless, he admitted that he wrote the critique of the 1979 Surgeon General's report for the companies (Exhibit 1273), but assured them that it was an "accurate" and "unbiased" interpretation. (The exchange of correspondence, at the request of Imperial Tobacco, will become Exhibit 1273.1 and 1273.2).

Justice Riordan commented that the call on time wasting was his to make, but agreed that it would be disproportionate to ask Mr. Lee to make the journey. Another document makes the cut!.

The shoe on the other foot

By contrast, most of the documents reviewed today were proposed by the defendants. The bulk of these were at the request of JTI-Macdonald, and were not opposed by the plaintiffs on the basis that they would be ruled in favour by Justice Riordan. They were consequently not formally presented or discussed (although the index was shown on the videoscreens) and were swiftly put onto the record. They will become new exhibits, numbered from 40507 to 40547.61. Among them are many government records.

A much shorter list of Imperial Tobacco documents was considered today, and these were admitted over the objections of the plaintiffs. One of these documents I found particularly interesting, as it hints at the ways in which elected officials and public servants within Health Canada did not see eye-to-eye.

In 1977, a letter was prepared for Health Minister Marc Lalonde's signature. An unsigned copy of the letter was found by the plaintiffs among Imperial Tobacco's discovery documents and shown to Mr. Lalonde months ago when he testified at the trial last June. (Exhibit 1558). The letter calls on the tobacco companies to "not undertake promotional activities of any kind" at the Commonwealth Games which took place in Edmonton the following year.

"It seems to us that there is an inherent incompatibility between smoking and sports generally and I hope there will be an opportunity for the Council and the Department to examine this matter in depth in the near future."

Today Imperial Tobacco showed a different version of the letter. This one was on letterhead, but was still unsigned. (They had found it among the records provided by the government when it was party to the case).

The memo attached to this copy was not displayed in the court-room, but extracts were read aloud. It would appear that departmental officials had sent the companies an advance copy of the letter they had written for the Minister's signature, as part of preparations for a meeting. Later, however, the officials noted that it had been decided that the letter would not be signed.

So tantalizing! Had the companies contacted the Ministers' office to demand that the draft letter not be sent? Had the department officials merely been bluffing by sending a draft, knowing that they would not get political support?

Justice Riordan commented on the ambiguity of these two versions, and allowed the new version and its covering memo to be entered as Exhibit 1558.1 and  1558.2. He said it would be unreasonable to ask Marc Lalonde to come back to authenticate this one document.

As if the 2870 weren't contentious enough....

Although Justice Riordan tried to break the tension with some light comments, it was clear that after this week's "negotiations" the mood between the two camps was even worse than normal. This did not seem to help the other business items that were up for discussion today.

* Testimony by class members

It had been earlier decided that Imperial Tobacco would provide the plaintiffs with a list of "class members" who might be called to testify.

Justice Riordan seemed surprised to learn today that Imperial Tobacco had asked the plaintiffs not to contact individuals on that list. "You are telling them they can't speak with their clients??"  He made it clear that the plaintiffs were expected to speak with these Quebec smokers - "These are people who are not experienced in court. The idea was that they should be able to be prepared."

Some of those who will be asked to testify may be selected from lists of people who registered as class members which the plaintiffs were required to provide to Imperial Tobacco. Others may be selected by Imperial Tobacco from other sources. With their marketing databases and other survey tools, they presumably have their own recruitment process.

 * Without reserve. Really?

Many months ago, at the beginning of last October, Justice Riordan had been presented with a discussion about another collapsed negotiation, one which had been intended to reduce the number of government witnesses. During the discussion about the impasse, the plaintiffs had offered to exchange the ability to introduce documents without the 2870 process and "without reserve" - provided that the same applied for rebuttal documents.

Today, Craig Lockwood tried to persuade Justice Riordan to hold the plaintiffs to their offer of allowing  documents to become evidence "without reserve." A collection of 100 or so documents had been provided to the plaintiffs this past weekend. Their was no mention, however, of the other side of the offer - reciprocity for plaintiffs documents.

Justice Riordan gave him the I-don't-buy-this-for-a-moment look, and pointed out the conditionality that had been on this offer. He (unusually) scolded Mr. Lockwood for the way in which information about the communication of the documents had been made. He also put pressure on the plaintiffs to agree to timelines to respond to the proposed material.

Both sides got deadlines: Mr. Lockwood must report by next week whether there is a willingness to consider reciprocity from the plaintiffs (if not, the 2870 process will be used). Mr. Lespérance has two weeks to identify rebuttal documents.

These and other unresolved questions about "2870" documents are now expected to be discussed at the end of March. (There are no witnesses scheduled for March 20, 26 or 27).

* The witness schedule

Imperial Tobacco's lawyers were again asked whether or not Mr. Simon Potter and Mr. Lyndon Barnes will be asked by testify, and again said a decision had not been reached. Justice Riordan gave them until March 17th to make up their minds. In the meantime, April 8th has been set aside for these two lawyers.

The judge also authorized André Lespérance to schedule two "counter proof" expert witnesses during the third week of April. Mr. Slovic (warnings) and Mr. Proctor (history) will likely come from the USA to testify that week. The plaintiffs would also like flexibility for other experts to provide rebuttal evidence on days when the trial would otherwise have a whole in the schedule.

Marketer David Soberman is now scheduled to testify mid-April.

The beginning of the end?

For the first time, there was discussion today about the scheduling of the final arguments in this trial, and the process leading up to that stage.

As he promised he would do, Justice Riordan circulated an draft outline for these final submissions. He asked for written comments on this outline by March 20th. "You are going to be able to talk about anything you want to, but I want it to be well organized with the same elements in the same sections."

He said he would be imposing length limits on the written pleadings -- "I know what you people are capable of producing" - and that this too was up for discussion

There will be a break in the trial while these arguments are prepared. "I am willing to give a suspension from the last witness – presumably a class member – until the filing of the plaintiffs notes and authorities, and an additional short delay for the filing of the defendant's."

The question of how long the parties would have to present their case is also up for discussion. The judge reacted to Philippe Trudel's suggestion of one week per side as though he thought that might be too little time - "there are three defendants!". 

Depending on the number of days required to hear from class members, it could all be wrapped up by June. If not, Mr. Trudel suggested that the final arguments be scheduled in the summer months so that people could "move on to other things." Justice Riordan responded by saying "nothing is excluded for the moment."

When the trial resumes on March 10th, it will be entering its third year of hearings. The defence witness scheduled for that day is Laurentius Marais - a mathematician once described in Time Magazine as "extremely convincing".  

Thursday, 20 February 2014

Day 210: A seventh inning stretch

The opening innings of the double-header tobacco trial now feel like a fading memory. Yet the final rounds are still weeks away. No wonder everyone looks a little restless. Time for a witness-free seventh inning stretch and trial management discussion.

More holes in the Swiss cheese schedule

With only - count'em! - six expert defence witnesses yet to be heard, the end of the combined defence proof is coming into sight. Five of these individuals now have dates against their names: Laurentius Marais, Kenneth Mundt, Bertram Price, Stephen Young, and James Heckman. A date for the sixth (David Soberman, a professor of marketing at the University of Toronto's Rotman School of Business) has been repeatedly and somewhat mysteriously postponed. We are told he is unavailable for personal reasons, yet the mainstream media seem to have no problems reaching him, as they did earlier this week.

All this to say that in about 5 sitting weeks, the tobacco companies will have finished presenting the facts on which they will argue that Justice Riordan should dismiss the two class actions against them.

But even these 5 weeks may be an overly generous provision, as expert witnesses can be pulled at the last moment.

This has happened twice already in the past two months. In January, Montreal psychologist Kieran O'Connor was dropped from the schedule only days before he was due to testify. Today, JTI-Macdonald counsel, Francois Grondin, informed the court that Dr. Dale Rice, an otolaryngologist who was supposed to testify next week, is no longer coming.

The back-story to such decisions is never made public, which makes it even harder not to speculate. Were these decisions made months ago, but only announced at the last minute to prevent complaints about the empty schedule? Is it during the dry-runs with these experts that the lawyers decide against putting their views on record?  Inquiring minds will never know.

An overtime inning of parading sick people?

Following those six scheduled experts, the only other witnesses on the defence list are the 60 or so Quebecers whom Imperial Tobacco maintains it will call to trial.

Today Suzanne Côté told the court today that Imperial Tobacco plans to call 20 people from the (lung disease) Blais class and 40 from the (addiction) Létourneau class. These individuals will be asked to come even if the Court of Appeal does not rule in a way that gives the company access to their medical records. (The Court of Appeal hearing on this subject is next Friday).

To my eyes, this seems a courageous thing to do. Justice Riordan's look of concern today when hearing about the death of one of last year's witnesses, Jacques La Rivière, made me think this was a man whose encounter with people suffering from lung cancer and emphysema might make him more, rather than less, sympathetic to their circumstances.

There is still not too much detail on how this will all come about. Ms. Côté was pressured to accelerate the identification of the people whom she would be inviting (subpoenaing?) to trial. She would not agree to give those names in advance of the previously imposed deadline of March 15th, but was asked to provide by early next week the pool of names from which this final list is being drawn.

Ms. Côté was also unsuccessfully pressed to reveal more about the "motions" that are being planned in preparation for these witnesses. But you could almost see the thought balloon above Justice Riordan's head: motions = decisions = appeals = potential delays.

The counter-proof

After that, the only "proof" before the final arguments will be the plaintiff's counter-proof. André Lespérance said this week that he wants to recall up to 5 experts who testified earlier in the trial, as well as one new witness (Paul Slovic). He also mentioned the possibility of witnesses from the companies who might need to testify regarding their financial situations.

An agreement has been reached to allow the plaintiffs to present this counter proof witnesses in April - after the defence experts and before the class members. (Under normal circumstances it would come only at the end of the defence witnesses.)

Amended pleadings? Additional proof? Well, not yet. 

Aside from these scheduling issues, the meat in this morning's hearing was a resumed discussion on two twinned requests of the plaintiffs. One motion is to amend their statements of claim, the other is to introduce as evidence the statistical information on which these changes are based.

Most of the changes that the plaintiffs are proposing are related to the ruling last summer in which Justice Riordan ordered a re-definition of the classes in ways that tightened up or clarified eligibility.

These redefinitions result in a recalculation (lowering) of the number of people who are eligible, and consequently a reduction in the amount claimed against the companies. As near as I can tell, the effect will be to cut about $7 billion from the original claim of $27 billion - but I have trouble doing arithmetic with numbers that large!

Other changes to their claim have also been proposed. These include removing the possibility of individual compensation for pecuniary damages ("Too complicated").  The plaintiffs would also like to ensure that Justice Riordan can make a "provisional execution" which, in the case of a favourable verdict, would see money exchange hands before the appeal process has been exhausted.

All three companies seem to oppose all of the proposed changes - even the one that would reduce the claim against them. They also oppose allowing as new proof the Statistics Canada data on which the calculations are based. Simon Potter (Rothmans, Benson and Hedges) spoke most strongly against these two motions.

Justice Riordan again suspended discussion to allow the plaintiffs to amend their proposal to reflect some of the concerns heard today.

The Quebec Tobacco-related Damages and Health Care Costs Recovery Act.

Almost five years has passed since the Quebec legislature passed a law which gave special provisions for tobacco lawsuits - and it is still not clear whether this law will be in place when the current class action suits are decided.

The tobacco industry launched a constitutional challenge to the law, which was heard before Justice Mongeon last October. His ruling has still not been issued. But however he decides, an attempt will inevitably be made to have the Appeal Court reject it.

I have been struck by how rarely this trial makes reference to that law, or the potential it might have to change the limitation period or other criteria for this case.

Today, Justice Riordan said that he expects that he will have to plan for two eventualities - one under the current law, but also in the possibility that the law does not apply. He invited the parties to "inform" him on how to interpret this.

He also told them that he would be circulating an outline of the structure he intends to take in his ruling, something that will also be discussed further in the coming weeks.

The trial will not sit until February 27th. On that day, Justice Riordan will be asked to allow evidence to be admitted under the provisions of Article 2870.

Tuesday, 18 February 2014

Day 209: The icing vs. the cake

At one point during today's short cross-examination of the expert pathologist hired by JTI-Macdonald, the witness objected to being asked to comment on introductions or conclusions of scientific papers.

"The 'results' section is the important part," Dr. Barsky cautioned plaintiff lawyer, André Lespérance. "All the rest is just icing on the cake."

Icing, with its tasty but camouflaging properties, seemed a more apt metaphor for Dr. Barsky's testimony at this trial. By liberally spreading attention on the minority of lung cancers that are not associated with smoking, he seemed to cover over the layers of lung cancers that are caused by tobacco products.

André Lespérance was the only plaintiff lawyer to ask questions to Dr. Barsky. The point of his cross-examination seemed to be to get Dr. Barsky to admit to the scale of tobacco-related lung cancers and also to get him to back-track or nuance some of his views about the distinct qualities of cancers associated with other risk factors (like radon, asbestos, etc). He appeared to be much more successful in the first goal than on the second.

"The link is indisputable" - and the scale is large!

Mr. Lespérance took a poetic approach to the day -- using the scientific papers that had been included as background references on Dr. Barsky's expert opinion in order to contradict his testimony. (Dr. Barsky's report is Exhibit 40504, and the reliance documents are Exhibits 40504.1 to 40504.61).

From these, Mr. Lespérance drew a steady stream of quotable quotes about the relative importance of smoking to lung cancer: "The proportion of lung cancer attributable to cigarette smoking is greater than 90%" "The link is indisputable." "Cigarette smoking is the single most important factor in the causes of lung cancer." "Smokers are 22 times more likely to die from lung cancer than nonsmokers."

For a tobacco industry witness, Dr. Barsky seemed surprisingly ready to give his general agreement with these reflections. He accepted as a  "ball park figure" that 90% of lung cancers were caused by smoking. He comfortably volunteered that he had never doubted the the link between smoking and lung cancer, and that he was aware that the companies had taken a contrary public position. Although he has been a consultant to the companies since 1987, he had never discussed this with them, however. "It wasn’t germane to what I had been asked to do.")

A likely explanation for increased adinocarcinomas:  Light cigarettes

Mr. Lespérance was likely also pleased at Dr. Barsky's agreement that it was the way that tobacco companies changed the design of their products that was the likely increase in certain lung cancer.

He was shown a medical text book included among his references (Dail and Hammar, Exhibit 40504.21), in which it was suggested that the rise in adenocarcinoma might be attributable to "deeper and more frequent inhalation of very low tar and nicotine cigarettes" 

"I don’t think anyone knows for sure," Dr. Barsky qualified, but agreed "It is a reasonable hypothesis and as good as any to explain the shift [in type of cancer]."  

He also said he was aware that the levels of tobacco specific nitrosamines had increased in cigarettes at the same time that the tar levels had been reduced and that he thought that this too was due to  "how the cigarettes were processed."

The 10% that gets 90% of Dr. Barsky's attention

Mr. Lespérance was somewhat less successful at getting Dr. Barky to agree that the other causes of lung cancer were relatively unimportant. Nor could he getting this witness to admit that his views on lung cancers caused by radon, bronchioloalveolar carcinoma and adenocarcinoma were not mainstream scientific opinion.

There were some head-scratching moments as the lawyer contrasted Dr. Barsky's statements with seemingly contradictory statements from his own scientific authorities. How could Dr. Barsky draw the conclusion that there was a "weak to modest association" between smoking and adenocarcinoma when the article he used reflected its title: Adenocarcinoma of the Lung Is Strongly Associated with Cigarette Smoking ? (Exhibit 40504.62).

A pattern soon emerged in Dr. Barsky's asnwers. "This study is an exception to other studies. You will find that the vast majority do not support his point."  Although he claimed there were "many other" papers that supported his view, he was unable to specify any by name.

The same thing happened when he was asked to substantiate his view that bronchioloalveolar carcinoma (BAC) was not cancers resulting from tobacco use. (This exchange prompted me to Google for more information on BAC -- what I did find was an an interesting analysis of how this "weird cell carcinoma" is part of the industry's litigation strategy in the USA, and how Dr. Barsky has already been identified as part of this strategy).

Marching to his own drummer

Another area where Dr. Barsky held strong to his views in the face of contradictory evidence was on the issue of whether HPV had been established as a cause of lung cancer.

Mr. Lespérance showed him that the international cancer agency, IARC, had found in 2007 that there was inadequate evidence to draw any such conclusion. (Exhibit 1696)

Dr. Barsky predicted that IARC would change its view in future reviews, as it had previously changed its opinion on the link between HPV and cervical cancer now was. "We have to look at this as part of the historical pattern of the march of science."

Yet he did not seem to have much company on this march. Despite being given a break in which to identify other scientists supporting this view, he could offer up only one other reference (Exhibit 40504.25).

The conclusion of this report, as André Lespérance read it, sounded far from compelling: "Strictly speaking, the detection of HPV DNA alone is not sufficient to confirm an active role of the virus in this process." 

Mr. Barsky did not blink. "I have read all the articles. my position is based on the sum total of my reading. "

Later, when it was his chance to offer his witness a closing round of questions, JTI-Macdonald counsel, François Grondin, asked Dr. Barsky to describe how HPV was identified as a cause of cervical and other cancers. As he described it, this had been the accomplishment of pathologists and not epidemiology:  "Viral-induced cancers have a different line of evidence."

Epidemiology vs. Pathology

This tension between pathological evidence and epidemiological evidence seemed to underpin many of the views expressed by Dr. Barsky. and Justice Riordan focused in on this dynamic in the last questions put to this witness.

"Are any [epidemiology studies] that you have seen based on analyses of case studies when there is actually a pathological examination done on the cause of death?"

Dr. Barsky agreed that "virtually every epidemiology study makes use of pathology," but that his concerns about the need for further pathological work were not addressed by this.

Most epidemiological studies were at a time when the individual signatures of cancer types were not determined or by methods that did not allow for them to be established. "They were done in an era when there wasn’t molecular biology... There is a tobacco signature that we know about today. There is a viral signature. There is a spontaneous cancer signature. These studies will not have that information."

Well before lunch and with no further questions, Dr. Barsky was thanked for his time and offered best wishes for his return trip to Nevada.

The road ahead

With nothing scheduled after the next three sitting weeks (and with 2 of those 12 trial days sitting empty), the defence schedule is beginning to look more than a little evasive.

ITL counsel, Craig Lockwood, has the unenviable task of fielding questions on this topic, and today he was squeezed for answers. Among the questions he was more or less forced to answer this morning was whether or not Imperial Tobacco will ask for members of the two classes (i.e. Quebec smokers who are addicted or who have lung disease) to come and testify at this trial.

Mr. Lockwood said that the decision to call witnesses did not depend on how the Appeal Court would reply to their request to overturn Justice Riordan's decision that the medical records and other personal information of these individuals could not be accessed. (The Court of Appeal will hear arguments next Friday, February 28th)

He looked uncomfortable as he explained that the decision was not one that Imperial Tobacco was making independently, as the evidence from those witnesses would also affect the other defendant companies. JTI-Macdonald and Rothmans, Benson and Hedges have said they do not intend to ask for such individuals to appear.

But at the moment -- and "subject to change" -- it was still the intention for hear from these Quebecers and therefore  "our scheduling should take this into account."  

And there was more! He told Justice Riordan that "there is a good chance there will be motions that will give us guidance on the class members."

There were no further hints on what those motions might be - and Justice Riordan admitted his curiosity was piqued. "I thought I had seen every class of motion known to mankind in this trial."


Worth mentioning are some things that Dr. Barsky failed to mention. One notable absence from his testimony was any reference to lung cancers caused by second hand smoke. 

He suggested that every lung cancer among non-smokers (and even among former smokers) had a non-tobacco trigger. (The U.S. Centers for disease control estimates that about 7,000 Americans die from lung cancer caused by second-hand smoke, compared with about 127,000 from personal tobacco use.)

His response to the lack of support by any scientific authority for the idea that HPV causes lung cancer was to suggest that such organizations would soon catch up and that "science marches on." 

But he took a very different view on behalf of the tobacco companies when making a submission to the CALEPA. In that letter he cautioned the California Regulators to stick with IARC's opinion that the evidence did not yet support a link between breast cancer and passive smoking. 

Justice Riordan has previously ruled that passive smoking is not relevant to this trial, which may be why the plaintiffs did not raise this issue.

The trial did not sit this afternoon and will not sit at all tomorrow (Wednesday). On Thursday, two motions from the plaintiffs will be discussed. 

Monday, 17 February 2014

Day 208: Lung Cancer and HPV???!

After two-weeks on ice (it's February!) the Montreal tobacco trial resumed this morning at all deliberate speed. Slow, that is.

Three down

One of the first orders of business was to announce that not one but three witnesses have been knocked off the list for the remaining few months of this trial. The plaintiffs have apparently decided against asking Dr. David Burns to testify at the trial. Since Burns will not testify, the defendants will call neither Michael Dixon nor Seymour Grufferman.

Dr. Burns was originally scheduled to testify for the federal government, and has been on and off this trial list several times. His most recent assignment was to counter the view of BAT scientist Michael Dixon that the Monograph 13 on light and mild cigarettes misrepresented the findings of the studies it reviewed.

It was after Justice Riordan allowed the defendants add an additional witnesses in rebuttal to Dr. Burns that a different approach was decided on. No explanation was given to the court for why Dr. Burns was pulled - nor on whether or how the plaintiffs will defend Monograph 13.

As for the rest of the schedule, cards are still being kept close to the chest. The schedule for February and early March is now in place (see below), but after that? It's a mystery.

A slower exchange

The pace of competing expert testimony on lung cancer has been leisurely by comparison. More than a calendar year has passed since the plaintiff's expert witness on lung cancer, Dr. Alain Desjardins, spoke of his experiences in treating lung diseases in Quebec smokers and gave his opinion about the illnesses of  Mr. Jean-Yves Blais.

(Mr. Blais was the representative class member for one of these twined-class actions. His lung cancer and COPD have both been attributed to smoking, and he died in the summer of 2012, five months after this trial opened.)

The task of providing a competing view of Mr. Blais' condition in particular, and the lung cancers of Quebec smokers in general, was assigned to Dr. Sanford Barsky, a pathologist from Reno, Nevada.

Pathologist Dr. Sanford Barsky
No greenhorn!

Mr. Barsky is an experienced witness for tobacco companies and other litigants. He said today that he has testified in about 15 tobacco trials, and has been deposed in about as many other cases. This is in addition to his work as an expert witness in other (non-tobacco) product liability and medical malpractice cases.

The company he usually works for, as near as I can tell from the documents on the Legacy Library, was RJ Reynolds. His client in this trial is JTI-Macdonald, the firm that purchased RJ Reynolds Canadian operations a couple of years after this lawsuit was launched.

(I have picked up bits and pieces about the life of a tobacco industry witness during this trial. Today I learned that the financial rewards can be sizable. Dr. Barsky said he had earned over $3 million over the 20 years he has consulted to the tobacco companies in his "spare time." He says the bulk - "ninety-five percent" - of his professional life is spent at his "day job" at the University of Nevada. There, he holds a a few cross-appointments, including Chief of Pathology at the School of Medicine. A part-time job that pays three times the annual household income is impressive!)

A well-practiced message

There are a number of differences between the American trials where Dr. Barsky has testified and this Montreal hearing. Those other cases, for example, were on behalf of individual smokers, and were heard before judge and jury.

I listened with half an ear as Dr. Barsky was taken through the voir dire ritual of demonstrating his qualifications as an expert. At the same time, I scanned transcripts from Dr. Barsky's remarks in some American courts. His message in those cases (i.e. Engle/Martin) was very much like the content of the expert report he prepared for this case (Exhibit 40504).

In both instances, the same themes were being struck:  Lung cancer is caused by lots of things.  Sometimes there is no outside cause. You can only know if a cancer was caused by smoking by looking at its molecular fingerprint. Unless such tests are done, one cannot say for sure that the lung cancer of [fill in the blank] was caused by smoking."  

Not playing to the jury.

I am told that American tobacco trials usually involve juries, and this may have lead me to think that Dr. Barsky would sound like an expert witness on an American crime show -- authoritative full voice, strong body language and memorable punch lines.

This feeling was strengthened as I watched him during the minutes after the lawyers take their seats and before Justice Riordan and the huissier arrive in court. He talked to himself - rehearing sotto voce  -- as he paced in the small space between benches in the public gallery.

I guessed wrong! Dr. Barsky is a witness who cannot be accused of being too flash, or of using performance tricks to strengthen his impact on the listener. (You can watch for yourself on a youtube lecture. I assure you, it fully captures the level of excitement in the court today.)

Sexing it up?

The plaintiffs did not oppose Dr. Barsky being qualified as an expert in pathology as well as an expert in research on cancer. With this out of the way, Francois Grondin could get to the meat of the day, which one might have expected to have been about smoking and lung cancer.

But no. Dr. Barsky responded to the opportunity to identify any changes to his now-three year old report by saying that "progress" in research had now established a greater impact of the human papillomavirus (HPV) on other cancers, including throat cancer.

HPV - the sexually transmitted cause of cervical cancer, yes, - but the focus of an expert testimony in a trial about smoking and lung cancer? What a thought.

Yet throughout the day Dr. Barsky referred frequently to HPV and the way that cancers caused by it could be diagnosed. This was clearly one of his intended take-home messages - and he made it sound big and scary.  "Like the flu virus, it is ubiquitous... It is thought to be increased by sexual contact... The trajectory is increasing over the past several years...Almost every woman will have been exposed..."

Lock up your daughters, indeed.

A magician's misdirection?

Dr. Barsky referred also to other causes of lung cancer. "Radon, radiation, polycyclic aromatic hydrocarbons in diesel exhaust, chemicals in the environment, asbestos -  these are all causes of lung cancer." 

These he identified without too much prompting. But he referred only to smoking as a cause of lung cancer when pressed. One of those moments when he was pressed to do so was during the voir dire, when André Lespérance pointed out that smoking did not even get a direct reference in his expert report. But for most of the day it was JTI-Counsel, Francois Grondin, who was asking the questions. He seemed more interested in getting Dr. Barsky's views on other forms of cancer on the record.

Like a magician's handkerchief, these other types of lung cancers seemed intended to divert attention from the real action at this trial. If so, Justice Riordan did not look very diverted.

After an elaboration of other cancers, the judge (unusually) interrupted the witness to ask how many were of the tobacco-caused variety. "Ninety percent," Dr Barsky acknowledged. Francois Grondin gave his witness a few opportunities to try to re-inflate interest in these other cancers, but each subsequent attempt seem to fall a little flatter.

Diagnostic precision

The second apparent take-home message from this witness was the importance of individual diagnosis and of detailed pathological reports on each individual's cancer tumour.

Facing the prospect of hundreds of thousands of claimants, the companies are not surprisingly resisting the idea that groups of individuals, let alone whole populations, can be given legal standing by virtue of a court decision and not a medical exam. Very few medical practitioners who testify here have been allowed to leave the court without being given the opportunity to say how important an individual exam is to the determination of a diseased state.

Dr. Barsky was asked to comment on the Dr. Desjardins' view that in the case of Mr. Blais and others like him, epidemiology must be relied on as it is rare for pathologists to be able to shed light on the cause of any individual's cancer. He disagreed: "Pathologists on an individual case basis diagnose, and on an individual case basis can extract information and shed light on etiology." 

He was asked to give examples of how this could be done with tobacco, and he described markers that were left within the p53 gene that could be expected in certain tobacco-caused lung cancers. "A pathologist can provide insight into etiology ... to a reasonable degree of medical probability."

Nonetheless, providing insights into these etiologies was not something that he routinely did in his own practice. In answer to a question from Mr. Lespérance during the voir-dire, Dr. Barsky said that he only provided a cause for about 20 of every one hundred cancer cases he reviewed. Fifteen of those, he said, were due to tobacco.

(Dr. Barsky's suggestion that there were molecular fingerprints struck me as somewhat at odds with the view expressed by other JTI-Macdonald witnesses, such as Jeffrey Gentry, who said that the biological mechanism between smoking and cancer is still unknown. Can you insist on fingerprints if you don't admit there are hands?)

Smoking: the only risk factor that fades with time?

In his expert report (Exhibit 40504), Dr. Barsky seemed to hint that Mr. Blais could have taken actions to prevent getting lung cancer. "If he had stopped smoking, his risk of lung cancer from smoking would have approached that of a non-smoker after 15-20 years," he wrote.

Today, he was even more optimistic. "The body can repair itself," he said. "There's evidence that as you stop smoking, the level of DNA adducts start to decrease. At 5 years they reach that of a non smoker." 

This declining risk was not true, he said, for cancers caused by other external sources, like radiation exposure, HPV and asbestos. 

Late-afternoon, Francois Grondin asked his last question of Dr. Barsky. 

The rest of this week: Tomorrow (Tuesday) is the cross-examination of Dr. Barsky. Wednesday, the trial will not sit. Thursday, there will be a discussion of two motions proposed by the plaintiffs. 
Next week:  Dr. Dale Rice, a defendant's expert witness on cancers of the larynx and throat, will testify on Monday and Tuesday. Wednesday the trial will not sit. On Thursday, there will be a review of documents proposed for admission as evidence under "article 2870".

Monday, 3 February 2014

The Defence vs. Justice Riordan

Several procedural items were discussed last week.

During these discussions, it often looked like counsel for Imperial Tobacco and Rothmans, Benson and Hedges were putting the screws to Justice Riordan. His transparent intention to avoid ruling against the companies and thus put the trial at risk of a delay while appeals will be heard seems to have declared open season for this kind of mischief.

We'll take two. Hold the "please."

The most obvious example emerged mid week, when the defence announced that they intended to call two witnesses to counter the proposed expert testimony of Dr. David Burns. (Dr. Burns was set to defend the landmark  "Monograph 13" against the view of BAT scientific consultant Michael Dixon, who said the expert panel misstated the science underlying its conclusions that light cigarettes offered no health advantage.)

I thought Justice Riordan had made it quite clear last December 5th  and December 19th that he would allow only one such witness.

But ITL and RBH lawyers seemed to ignore this when they announced not only that they intended to call an additional witness, but that there might also be delays while they did so. In addition to Michael Dixon returning, they intended to bring epidemiologist Dr. Seymour Grufferman to Montreal. This gentleman, apparently, is experiencing health issues and may not be able to draft his report in a timely way.

 (Mr. Potter described Dr. Grufferman as a "Harvard Professor in Epidemiology", although Harvard's faculty directory lists no such person. It is sometimes prudent to fact-check Mr. Potter's statements.)

However clear the one-witness decision seemed to me, two of the defendant companies seemed to think it was still an open question. They pointed to a lingering thread in the way that Justice Riordan had concluded the day, and yanked at the loose-end in order to unravel the decision.

From his reaction last week, Justice Riordan also felt that his chain was also being yanked. Clearly he did not appreciate being put in a position of offering forgiveness instead of permission. ("I am in a bit of a huff, I have to admit").

First Craig Lockwood (who represents BAT/Imperial Tobacco) and then Simon Potter (PMI/RBH) used a good-cop/bad-cop act to try to force Justice Riordan to downgrade his December ruling into an "express[ion of] a clear preference."

The other parties in the room seemed to be unimportant to this struggle between the bench and two of the five parties in the trial. The counsel for JTI-Macdonald kept quiet. The concerns of the plaintiffs, even though they were more forcefully argued than usual by Pierre Boivin and André Lespérance, seemed to be almost incidental to the discussion.

Once again, Justice Riordan blinked. Although he spoke on the side of the plaintiffs, he ruled in favour of the defendants. "I see no justification or need... Nevertheless, the stakes in this trial are of the highest order, and throughout the Court has, time and again, interpreted the rules in such a way as to afford the parties the opportunity to make their cases fully."

One additional witness was allowed - on the condition that it "will in no way delay this trial."

While you are at it, take some of theirs away

Simon Potter seemed on a roll in his efforts to maximize court-time for his expert witnesses and minimize the scope for the defence.

His second long (winded) argument today was to request that much of the report prepared by plaintiff expert Mr. Paul Slovic be thrown out.

Mr. Slovic was engaged by the plaintiffs to rebut Kip Viscusi's argument that smokers over-estimate the harms of tobacco use. The starkly differing views of these two men have long been a matter of public record, and Mr. Slovic was also hired to counter the views of Mr. Viscusi in the now-legendary U.S. RICO case.

Mr. Slovic's recently-circulated report was fresh fodder for Mr. Potter bombast. "A Trojan horse."  "Splitting the case." "Bootstrapping."

Onlookers were not shown the colour-coding that he used to annotate the contested report, but it seemed like Mr. Potter wanted to condemn all but a few paragraphs to the chopping block. He took particular aim at comments related to addiction, to youth, and to the regret people feel after becoming a smoker.

Gabrielle Gagné, who presented the plaintiff's defence of their witness, is the 'go-to-girl' on the plaintiffs team, and the apparent wagon-master of their proof. This was the first time she was assigned to present an argument at the trial.

She provides a sharp contrast to Mr. Potter in more than demographic ways. No hyperbole. No theatrics. In an understated tone and a steady slow pace, she provided Justice Riordan with reasons he should see Mr. Slovic's report as proper rebuttal.

She encouraged Justice Riordan to understand the connection between the information smokers received from tobacco promotions and that they received from health warning messages. She took him to the statements that Mr. Viscusi made which discounted the role of addiction, and the judge's explicit permission for such comments.

Justice Riordan gave Mr. Potter much of what he asked for. The judge agreed to strike down those sections of Mr. Slovic's report which dealt with addiction and smokers' regret.

Ms. Gagné can take comfort, perhaps, in the preamble to the ruling, in which Justice Rirodan said that "the extraordinary nature of this case requires me to take certain steps that might not be appropriate in an ordinary file." While he would not normally want to 'charcuter' (butcher) an expert report, he found the need to rely on the sections of the Code of Civil Procedure that authorized him to implement measures to hasten progress or simplify the proof. (Article 1045)  Justice Riordan also made clear that he rejected Mr. Potter's arguments of case-splitting and improper rebuttal.

Yet to be decided

Earlier this week, two other issues were touched on but not resolved.

How big is the class, exactly?
One was the request by the plaintiffs to introduce new evidence at this late stage of the trial. The documents in question are population estimates that would allow for a calculation of how many class members there are following the redefinition of the classes made last July. The plaintiffs were told to provide more details, and the discussion was suspended until mid-February.

Simon Potter's testimony

The other was an amusing discussion about whether or not Justice Riordan should intervene to prevent the testimony of Mr. Simon Potter. Mr. Potter is a fact witness scheduled by Imperial Tobacco (he represented this company for many years, including during the period of document destruction). But he is also the counsel who now represents one of the other defendants.

The inappropriateness of his being both witness and counsel in the case has been previously discussed and ruled upon. In 2011, Justice Riordan said it could only happen if there were "no other alternative." Last year, he encouraged the parties to find "a way of filing documents or making admissions or something."

Ms. Côté reported that attempts to find such a way had failed. She outlined several options she had suggested to the plaintiffs to no avail. She wondered if Justice Riordan could convince her opponents to agree with one of these plans.

Justice Riordan said he had no intention of convincing anyone and that he was not in the position either to force the plaintiffs' agreement, nor to deprive Imperial Tobacco from calling their witness.

Unless another solution could be found, the decision of whether or not to call Mr. Potter to the stand was now in Imperial Tobacco's hands. Meanwhile, he would like to avoid having to judge the credibility of a witness who is also a lawyer in the case. (Mr. Potter sat silent during this discussion of his future role.)

The plaintiffs sounded doubtful that a way could be found to reach agreement, but agreed to continue discussions. They seemed to think the testimony of Mr. Barnes should cover the story of document destruction, and did not sound opposed to the idea of cross-examining Mr. Potter in open court.
Mr. Potter and Mr. Barnes are scheduled as the last of the defence witnesses -- now only two months away. "The clock is ticking" Justice Riordan reminded Ms. Côté.

The trial resumes on Monday February 17, when Dr. Sanford Barsky will testify.