Tuesday, 8 April 2014

Day 223: An additional round on additives

The streets on the way to the Montreal courtroom today looked very much like the morning-after-the-night-before.

Detritus from the political campaign that saw a government tossed from office were soggy from a heavy spring rain. Quebec is now on its third Premier since the trial began in 2012 (and its fifth since the suits were filed in 1998). A week may be a long time in politics, but it is a blink of an eye in this trial!

Cue Victoria!

For the third time teleconference technology was employed to allow Justice Riordan to hear the testimony of a witness unable to travel to Montreal. Again it was a former employee who had retired to Victoria: Mr. James (Jim) Sinclair, who had once directed Imperial Tobacco's leaf processing plants in Lasalle, Quebec and Aylmer, Ontario.

From Montreal, we could only see the upper half of Mr. Sinclair's body, with the occasional movement of others around him. We heard it was a small room. In addition to the witness and stenographer, lawyers for Imperial Tobacco (Ms. Nancy Roberts), JTI-Macdonald (Mr. Kevin LaRoche) and the plaintiffs (Ms. Gabrielle Gagné) were also seated.

From the portion of him visible on the screens, Mr. Sinclair fits nicely the traditional view of Victoria retirees. Trim, well-dressed, articulate. Although now only 71 years old, he has already enjoyed 15 years of retirement. His early start to an almost 40 year career at Imperial Tobacco began when he joined the company straight out of high school in 1960.

From his first job as a technician at its then newly-established facility to make reconstituted tobacco,  Mr. Sinclair was steadily promoted, eventually being put in charge of all of ITL's consolidated manufacturing facilities in western Ontario. (Not long after his retirement in 1999, the company transferred its production to Mexico.)

And it was for this experience -- over several decades at at many operational levels -- that Imperial Tobacco counsel, Nancy Roberts, asked Mr. Sinclair to testify. In particular, she wanted him to talk about the process by which sheet tobacco was manufactured, and whether or not this was a way in which chemicals could be added to cigarettes.

The additive intrigue

Most public health authorities have not put much emphasis on the use of additives, other than menthol, in conventional Canadian cigarettes.(When the federal government banned additives in Canadian cigarettes in 2009, it was presented as a response to the use of flavours in little cigars, and a way of pre-empting their use in Canadian cigarettes.)

The way that the Virginia tobacco used in Canadian-style cigarettes is cured means that the tobacco leaf retains much higher levels of sugar than the Burley or Oriental tobaccos used in American blends.

The result is that when Canadian cigarettes are burned, the smoke is mild enough to be inhaled, even without licorice, sugar or other sweeteners being added. Because the nicotine levels in Canadian tobacco is higher, there is also no real need to use ammonia to give it an extra boost, even when the amount of tobacco has been reduced to produce lower tar levels on smoking machines. The only additives used in Canadian cigarettes have been "humectants," which are intended to aid storage or handling, and not meant to change the way cigarettes behave or taste.

Well, that's the conventional view, anyway.

But this is not a view shared by the plaintiffs in these class actions. They have given considerable court time and attention to their conclusion that chemicals were added to Canadian cigarettes, that knowledge about the use of these chemicals was withheld, and that misleading statements were made by the companies about the presence of these chemicals.

To prove this, they filed many exhibits and called several former employees to testify.  (These witnesses include Wolfgang Hirtle, Pierre Leblond, Ray Howie, and Norm Cohen).

On the other hand, the companies have held tight to their position that additives were not used in Canadian cigarettes other than in ways fully disclosed to the government and consumers -- i.e. to add menthol flavouring or as humectants or conditioners.

The trial moved to Victoria to let Mr. Sinclair help his former employer maintain that position.

Reconstituting tobacco

Imperial Tobacco was the first Canadian company to develop a way of rehabilitating manufacturing waste - and for many years (until the mid 1980s) it produced materials for its competitors.

Mr. Sinclair explained that the process involved the use of tobacco "offals" – "the small parts of Virginia tobacco that is unusable in the cigarette". This material was blended into a flour, and then mixed with a "binder" produced from the stem of plants. The combined substance was cast onto a steel band to produce a foil which was subsequently sliced and then mixed with tobacco leaf in the cigarette manufacturing plant. The amount of reconstituted tobacco in Canadian cigarettes typically ranged from from 3% to 8%, he said.

The product evolved over time, changing its name like a software program -- PCL, PCLB, PCLX, PCL1, PCL2, and so on. The reasons for changing the process, as Mr. Sinclair described it, was never to affect how cigarettes tasted or smoked, but to adapt to the needs of new types of cigarette manufacturing machines.

Mr. Sinclair stressed that Canadian reconstituted tobacco is totally unlike the  "Schweitzer" method leaf used in the United States. "Virginia [tobacco] does not have enough fibre to make a paper type product," he said. The wood pulp that was used in the Schweitzer process would "not be acceptable" to Canadian smokers.  "Never ever ever!" was Schweitzer product used in Canada.

He was equally certain that the waste product used in making PCL did NOT include anything that had been treated with additives - not even the humectants used in water treated stem, and certainly not fine-cut.

Mr. Sinclair said the additives to
PCLX were used only to make the
sheet stronger for manufacturing purposes
With Mr. Sinclair appearing on the overhead screens, it was not possible to follow along with the documents that were being discussed. Since many of them were marked confidential, or redacted, this may not have made much difference.

Among those redacted documents was a list of additives used on the reconstituted leaf developed as PCLX. Ms. Roberts seemed conflicted between trying to maintain the confidentiality of these documents and having her witness testify that the additives were benign compounds with long names -- hydroxypropyl cellulose, sodium carboxymethycellulose.

Ammoniation? Not us!

And as for the controversial use of ammonia, Mr. Sinclair said it was only ever considered as a way of increasing the pectin levels in stem, and even then the idea was soon abandoned. "We never went farther than a few samples." 

As a service to Brown and Williamson, his plant had experimented with making ammonia-treated tobacco on their PCL process. Their American sister-company did not have that technology at the time. But this nicotine-enhancing method had never been used on Canadian cigarettes.

Mr. Sinclair's description of
the evolution of the PCL processes
Earlier in the trial, the plaintiffs had filed notes from an ammonia conference in which Mr. Sinclair made a presentation about Canadian reconstituted processes.

Today he said he had attended only as a substitute for more senior research staff at ITL, who had "no interest in going as they had no interest in the technology." He made it sound like being there was a chore.

Supplying competitors

Mr. Sinclair said that great attention was paid to cleaning out the bins before changing production lines, and even more so when moving to production on behalf of a competitor.

Was there a hint of finger pointing when Ms. Roberts made distinctions between the additive policies of ITL and its competitors?  If so, Mr. LaRoche was on hand to ask Mr. Sinclair about the work done for his client, RJR/JTI-Macdonald.

Mr. Sinclair confirmed that the same process was followed for both companies, and that RJR-Macdonald's recipes were followed. According to those recipes, he said, the amount of fine-cut waste included in a Canadian cigarette would have been a small fraction of the tobacco portion.

DM is a mystery substance that the plaintiffs have suggested was a "natural tobacco extract" or a form of added nicotine). Mr. Sinclair said he had no idea what it was, and confirmed that it was not used in the reconstituted tobacco manufactured for  RJR/JTI-Macdonald.

The cross-examination

The court recessed briefly before Gabrielle Gagné began her cross-examination of Mr. Sinclair, but with the videoconference equipment running, it was impossible to not hear the chit-chat between sides during the pause. It was a sharp reminder of how tense the relationship between parties, and how quickly snarkiness among senior lawyers surfaces when the judge is absent from the room!

Ms. Gagné is not yet long enough at the bar to reveal any snarkiness she might feel. She began a polite suite of questions to Mr. Sinclair aimed at having him reveal how much he knew about trial events to date, and how involved he had been with his lawyers before his testimony.

He identified very little prior contact with the lawyers, and said he was not aware of trial developments. He did, however, acknowledge that he had played a role in developing his former employer's response to the "proposed admissions" regarding additives.

Ms. Gagné showed Mr. Sinclair several documents which seemed to suggest that fine-cut waste had indeed been used in manufacturing reconstituted tobacco, that it was part of the waste collection system, and that the desire of the company was to use "100% of all waste". (Exhibit 1257, new Exhibits 1734, 1735).

Despite repeated prodding, however, Mr. Sinclair maintained that none of this "refreshed his memory" or "changed his testimony."

Before long, and from his seat in Ottawa, Bruce Johnston put more pressure on the witness.

He pointed to holes in Mr. Sinclair's reason that fine-cut was "too moist" to be used for reconstituted tobacco, showing that it had indeed been used by ITL at times. The speed with which Mr. Sinclair offered other reasons ("not worth the trouble") made him look a tad anxious to validate the defence position he had helped draft some years earlier.

Finally, under pressure to say how, in the absence of any documentary evidence, he knew that fine-cut waste had not been used, Mr. Sinclair said "his belief is based on his lack of recollection of it happening." That may leave a lot riding on his credibility.

Some loose ends tied up

Before Mr. Sinclair testified, a thinly-attended session was held this morning, during which a number of minor business items discussed.

* Next Wednesday, JTI-Macdonald's counsel will have the opportunity to argue that the plaintiffs demand for Mr. Poirier to testify again should not be granted.

* There will be no further hearings this week.

* JTI-Macdonald intends to ask the Court of Appeal to overturn any decision of Justice Riordan to allow Exhibit 1702 (now under reserve). This is the recommendation by an RJR attorney that the company should "embrace the mechanistic issue" and make it "scientifically intractable" to attribute any tumour to a chemical in cigarettes.

* Dr. Dominique Bourget has confirmed that she received no written mandate for her work as an expert witness for JTI-Macdonald, despite the ethical recommendations by her own professional association that this must take place. (Le mandat confié à l’expert doit être clair, précis, formulé par écrit et prévoir 
les conditions de sa réalisation.  The mandate given to an expert must be clear, precise, written and specify the terms of work.)

* The plaintiffs filed population estimates from Statistics Canada to support the adjustments to their statement of claim.

* JTI-Macdonald filed blacked-out versions of two government records for which the full versions have been clawed back. (Exhibit 40138, 40160). What, you might ask, do they want to keep secret after 40 or more years?

Will they show us the money?

For decades it was possible to follow the financial returns of two of the three major tobacco companies participating on this trial, as they were public companies listed on Canadian stock exchange. But after Imperial Tobacco was fully bought out by British American Tobacco (February 2000), and after Philip Morris International acquired direct control of Rothmans, Benson and Hedges (July 31, 2008), there was no longer access to the quarterly or annual statements of these operations.

Public knowledge may again be gained.

Justice Riordan ordered the companies to provide updated financial statements to the plaintiffs (capacity to pay is a consideration for demands for punitive damages). These statements were today filed as exhibits (Imperial Tobacco, Exhibit 1730; JTI-Macdonald, Exhibit 1731; Rothmans, Benson and Hedges, 1732).

Although they were sealed in thick brown envelopes, the seal may be undone if Justice Riordan rejects the request for confidentiality. That discussion is now scheduled for May 7th.

The companies may face an uphill battle in this argument. Today Justice Riordan sounded like he thought that the rules of the game would require the information to be fully disclosed.  "It is clear to me that the patrimonial [financial] situation of the companies is relevant. If there are parts of the financial statements of the past 6 or 7 years that don’t reflect on the patrimonial situation, it might not be relevant - but to cut up an exhibit into pieces is not the way we do it."

Playing hookey

This morning's discussion was held without the assistance of Christiane Charette, the stenographer who whispers mysteriously into a console throughout the day. I think now it is only Justice Riordan who has perfect attendance at the trial.

Many thanks to the ever-capable Barbara Collishaw for blogging the trial while I stepped away to share this experience with European colleagues.

The trial resumes on Monday, April 14th with testimony by Nobel laureate economist, James Heckman, who is no fan of tobacco advertising bans. Later in the week, another industry expert will share his doubts about their effectiveness. Toronto professor David Soberman will testify on April 16, 17 and possibly 22nd.

Note: This blog was back-dated to allow for consistency of indexing.