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".