Tuesday, 25 March 2014

Day 221: Residual reasoning

The cross-examination of Stephen L. Young, PhD, CPE, of Ann Arbor Michigan began late Monday afternoon. After circling around the same arguments and the same documents for another full day, it finally ended, and after a few questions from Mr. Lockwood, the most interesting questions once again came from Justice Riordan. Mr. Young is now free to go back to Michigan.

Pierre Boivin began his cross-examination with a zinger of a hypothetical question, “If I want to sell a new product that will kill half its customers if used as intended, what I do?” Mr Young’s answer was clear, “You would not sell it unless you went to the government and public health authorities to determine whether benefits outweighed the costs or risks.” Once again, Mr. Young demonstrated his feeble grasp of the meaner realities of corporate life here on Earth.

All tobacco-related risks are residual risks

When asked if the risk of lung cancer from tobacco use was a residual risk, Mr. Young said that all tobacco-related risks are residual risks. In Mr. Young’s expert opinion, manufacturers do not warn consumers about the residual risks of their products but leave that task to public health officials.

In another hypothetical situation, Mr. Boivin asked whether, if a manufacturer knew about cancer risks in its product, it should warn people. Mr. Young replied, consistently, that he would expect the manufacturer to go to the public health officials who would deal with it. And would the manufacturer contradict the message the government wanted it to provide? “I would expect the manufacturer to be consistent with the government’s message”. And if the government wants a message on the product to say cigarettes cause lung cancer, and the manufacturer complies, but takes out a full-page ad saying the government is wrong, is that proper? Mr. Young was not sure about that; it was not what he had looked at. Certainly, he said, the manufacturer’s information should be consistent with government policy regarding health risks.

And with a little housekeeping of schedules, Monday’s session was over.

Exploring the literature on effectiveness of warnings

With the only-in-Montreal admonishment to the courtroom to “Close your cell phones” and the arrival of Justice Riordan in his red and black robes, another day began.

Mr. Boivin’s first questions were about a study by Ho et al: had Mr. Young read it? Yes. Thoroughly? Yes. It was pointed out that the statements concerning addiction were at odds with Mr. Young’s statement in his report. His explanation? I made an error in including it in my list of references. And he continued, “I seem to have ignored this.” That made me wonder if he had not read his own report, or if he had even written much of it himself.

Another of Mr. Young’s source documents was presented, Curbing the Epidemic: Governments and the Economics of Tobacco Control, a report by the World Bank. Asked who the World Bank is, Mr Young replied “I don’t know who the World Bank is.” But you use it as a source, offered Mr. Boivin. Mr. Young asked, Can you point to where I used it as a source? You don’t remember? I don’t. It’s on page 18 of your report, Mr. Young. (It is one of the sources for a table of smoking control activities by decade.) Mr. Young was asked what parts of the World Bank document he had read and answered, “The parts cited in our report”. (Note that was “our” report not “my” report). Mr. Young seemed to be getting more defensive and was becoming redder in the face as the morning went along.

I agree they said that

Mr. Boivin read a passage indicating that health warnings were part of the effective strategy governments had employed and asked Mr. Young if he agreed. “I agree they said that,” was his first reply. Asked again, he said he did not entirely agree, since, in his opinion, warnings are not effective.

Next, Mr. Boivin presented an Australian report and asked if Mr. Young had read it. Yes, he had read it entirely, but did not remember how he used it in his report. Further, he said he’d have to “look and see why they referenced this in the report.” In any case, it concerned government warnings, not manufacturers’ and so was not in his area. Also it was much later, in 2008.

In a single-sentence paragraph, the Australian study states, “There is no doubt that warnings have an impact on smokers.” Mr. Young said he did not know what they meant; these studies do many things. When asked if he had read this page, Mr. Young said he might have. In any case, he appeared not to be convinced by the studies in this report and said he would be willing to bet that they did not measure actual behaviour but only behavioural intent. That opinion was based on his review of the literature on smoking and warnings.

Mr. Young does not agree

Mr. Young was asked if he had read the WHO Report on the Global Tobacco Epidemic, 2011: Warning about the dangers of tobacco. He had read some WHO documents but was not sure about this one. Did he consider WHO a reliable source regarding tobacco warnings? He hadn’t evaluated it so he had no opinion. Was he aware of the Framework Convention on Tobacco Control when he wrote his report? He did not recall, but he understood that some countries had joined together to do something about tobacco. The FCTC, an evidence-based treaty, stated “health warnings encourage tobacco users to quit and help keep young people from starting”, but Mr. Young said it might be true or untrue, because he did not know what evidence they used and repeated his opinion that intent is what is being measured, not behaviour itself.

What the WHO report said
What Mr. Young said about it
After Canada became the first country to introduce large, graphic health warning labels on cigarette packages in 2001, smokers who had read, thought about and discussed the labels were more likely to have quit, made a quit attempt, or reduced their smoking (29). About three in 10 former smokers reported that the labels had motivated them to quit and more than a quarter said that labels helped them remain abstinent (41). In another Canadian study, about a fifth of smokers reported reducing their consumption as a result of seeing the pack warning labels (42).
It would be a good thing if warnings actually changed behaviour. But it can’t be determined.
I don’t have references to tobacco warnings in my report but I do say intent and self-reported behaviour are not accurate measures of behaviour.
I would be very surprised if warnings actually had a behavioural influence on them.
This reported reduction is not accurate (it may be true they said it or thought it).
Youth respond to graphic health warning labels similarly to adults (16). Graphic warning labels are more likely to prevent adolescents from initiating smoking (47) or, if they are already smokers, to think about cutting down or quitting (48).
I don’t believe that.

Mr. Young said he has never done this kind of research because it is too complex and there are too many influences on behaviour. He implied that it would be next to impossible. All the research he had ever seen says other factors are always more important than warnings.

Mr. Young is obviously not up-to-date on this field of research: we could send him a few good reports (here and here)!

What was on Mr. Young’s reference list?

Further questions covered other references used by Mr. Young (and his assistants) in producing the report.

Had Mr. Young read the Hammond report? Yes, but it wasn’t relevant to his mandate. His staff did the searches and selected reference documents. “I don’t know what they found.” Had Mr. Young read all Hammond’s references? He did not know, but he had read a lot of them. Asked about a number of specific references, he had two answers. Either he had read a paper but did not include it because it was not relevant to his mandate or he did not recall. Some other papers dealing with the same topics had not been read.

Personal watercraft take us to Australia

Plaintiff lawyer Philippe Trudel took over, and after a moment spent arranging his laptop on one of the many stacks of file boxes, set off on a new course. After a detour through explosive Ford Pintos and defective baby cribs, in order to separate residual risks from product risks, Mr. Trudel wanted to discuss an Australian instructional booklet about personal watercraft safety. (Mr. Young has worked on safety information for personal watercraft.) The warnings told people what to do or not do. It was a product risk and not a residual risk, said Mr. Young. Do you need to warn people that injury may result from using the product? Mr. Young’s answer was No; we told them to avoid these specific things, which are product risks people can avoid. In such cases, the manufacturer warns.

Wiping out the public health authorities--- just hypothetically, of course

Finally, cigarettes entered the conversation. The possibility that filters make cigarettes less dangerous was introduced; if that is true, what should a manufacturer do? Mr. Young said it was inappropriate to suggest manufacturers should do something just because it can be done. And if this were going to kill fewer people? Same answer. If it would kill 50,000 fewer people in Canada? No answer. After some objections that Mr. Young was being asked for a legal opinion, and reassurance from the judge that the expert understood that his domain is warnings and science, not the law, Mr. Trudel rephrased his question: In a hypothetical situation where there were no public health authorities, if cigarettes with filters cause fewer deaths than those without, should manufacturers advise the public? Mr. Young insisted that it must be the public health authorities who do that, but that he was not in a position to imagine public health authorities not existing. He had no recommendation in this scenario. The next series of questions relied on the absence of such authorities, and if a manufacturer wanted to sell a product with only residual risk in such a situation, Mr. Young would not approve.

Which risks is a manufacturer bound to disclose? Things a consumer must do or not do to use a product safely, in Mr. Young's opinion.

Still in the hypothetical universe with no public health authorities, Mr. Trudel asked whether, if it were possible to make a cigarette without nicotine, which would not be addictive. Mr. Lockwood and his learned friends objected to the hypothesis, but Justice Riordan allowed the question. Mr. Young’s answer was consistent: There is no automatic need to provide a warning, but it might or might not be appropriate, and I would lean towards not recommending a warning. Manufacturers are not required to warn about residual risk and generally do not. All tobacco-related risks are residual.

Avalanches and Bear Country

Mr. Trudel probed further into Mr. Young’s insistence that warning have no effect on behaviour. If skiers see a sign warning of high risks of avalanche and they do not go skiing that day, did the sign affect their behaviour? Mr. Young had no idea whether the sign has any effect at all. You could interview the people and find out why they didn’t go, whether the saw the sign, and what other ways they had learned about the avalanche risk. Unsatisfied, Mr. Trudel tried another outdoorsy scenario.

Suppose a hiking path forks and one branch has a sign warning about bears. No one goes on the path with the bear warning. Mr. Young allowed that it was reasonable to assume that the sign might have had an effect. He said that if people see a sign and act accordingly, the sign is effective. It’s easier to attribute the change in behaviour to the sign in the bear situation, rather than in the skiing situation where there are many other warnings around, such as radio. So, asked Mr. Trudel, is there a good chance behaviour was changed by the warning sign? Mr. Young agreed that in the scenario presented it was not only a reasonable assumption it was a required assumption.

Thus, Mr. Young had made an exception to his rigid statement that warnings are always ineffective, and he even hinted he might agree with the more commonplace definition of “effective”.

A long discussion ensued about the information provided with prescription and over the counter drugs. The questioning wandered into the borderland between expert opinion and legal opinions, without ever mentioning manufacturer’s liability. That would come later.

Skepticism and extreme cherry-picking

Even though Mr. Young appeared to have relied heavily on his staff to prepare the research for his paper, he was quite adamant in his scepticism regarding other people’s research. Here’s an example:

When shown a table of the ages people start smoking, he admitted he could read the numbers but did not know if they were accurate. He had no opinion. He did not know.

And did he think the World Bank reports were credible? He said he did not assess credibility of all the documents; he just used the part about benefits. A further question: If you choose to use documents from an organization, you are choosing to believe they are credible. Answer: I look at whether the data is relevant and useful to my research. I do not evaluate the credibility of the authors or organizations. I assume that peer-reviewed articles are credible and most by the organizations are probably credible.

In short, asked Mr. Trudel, you use one page for your purposes and throw the rest away? No, said Mr. Young, I just have no use for the rest. For the rest of the cross-examination, his most frequent utterances were “I don’t know” and “I have no opinion”.

The witness looked somewhat relieved when Mr. Lockwood returned for redirect. The lawyer representing a tobacco company found himself asking this question: Given that all tobacco-related risk is residual risk, are you aware of any safe way to smoke cigarettes? His witness answered clearly: There is no way to avoid the risk except by not smoking. After some discussion of the narrowness of his mandate and his firm conviction that warnings do not work, it was time for the witness to face Justice Riordan.

The best questions come from the bench

Beginning conversationally, and assuming--as we all would--that the witness was not a Harley rider, Mr. Riordan mentioned that in New Hampshire some motorcycle riders wear helmets while others don’t, although they would have all been exposed to the same informational warnings. Mr. Young said this was because there are many factors other than simple information that affect people’s behaviour.

He asked Mr. Young if warnings are used to protect manufacturers against legal problems. The witness said it was not relevant and that he did not consider legal liability. The judge pursued the point: Is there a relationship between warnings and legal liability? Mr. Young said he was aware of some relationship and that liability does enter into the failure to warn or failure to warn adequately.

Could the judge assume there is a body of theory on warnings and legal liability? Mr. Young did not know. Surprised, the judge asked whether, in 25 years of working on warnings, Mr. Young had never considered that. His answer was that if the warnings are well designed they should stand up in court.

And when Mr. Young worked with the personal watercraft manufacturers, did no one raise the issue of legal liability? Mr. Young volunteered that he had addressed liability in litigation concerns but not while performing his design work. He had never put it together with design. I had to restrain myself from an unbecoming comment on the disingenuousness of this answer, but Justice Riordan took it more calmly than I did and made the clarifying suggestion that legal considerations were parallel to the design process but not connected. The witness agreed.

The final question: isn’t cigarette smoking such a special case that warnings have a different place? Mr. Young mentioned other public health strategies and that the ways over the counter drugs are sold is another special case among consumer products, but concluded by repeating that tobacco is probably the only product whose risk is entirely residual.

The court will not sit Wednesday, and Thursday will be a document day with no witnesses. At 5:02 p.m. the witness was dismissed and the judge wished everyone happy spring. (We are still waiting for the temperature in Montreal to get above freezing.)

Visitors in the audience

In the afternoon, there were new observers. One was a woman (whose name I missed) studying courts’ and judges’ use of technology; she was impressed with the smooth and mostly paperless operation of this court. The others were filmmaker Nadia Collot and her partner. Here’s a trailer for her film The Tobacco Conspiracy.