Tuesday, 23 September 2014

Day 236: What they knew, when they knew it and what they did with that knowledge

There was no fanfare today. No media. No crowds. The second day of the plaintiffs' final arguments in the Montreal tobacco was a day of concentrated effort that faced no such distractions.

That is not to say that it was a return to the "normal" of the first 30 months of trial. Watching the trial this week is a very different experience.

This is the first time that the lawyers have had the opportunity to speak at length without the interruptions of objections or comments from the floor from the other side. The first time they have been able to show how the various documents and facts they have assembled over months can be woven together to tell a story.

The story-lines were laid down in the questions framed by Justice Jasmin in the ruling that authorized the lawsuit in 2006, which evolved into the outline for written arguments that Justice Riordan laid down last spring.

Three of those questions were addressed by André Lespérance yesterday and this morning:
  • A.  Did [the company] manufacture, market and sell a product that was dangerous and harmful to the health of consumers?
  • B.  Did [the company] know or was it presumed to know the risks and dangers associated with the use of their products? When did they know? When did government know? When did the public know?
  • D.  Did [the company] trivialize, deny or employ a systematic policy of non-divulgation of such risks and dangers?
Yesterday Mr. Lespérance opened his presentation by weaving together events in 1977 to show how the answers to these were woven together. This morning he took Justice Riordan back to what he saw as the beginning of the breach between the companies' knowledge and its actions.

When they knew: 1958

Stories are about people, of course, and Mr. Lespérance began by introducing a few main players: DG Felton, who managed smoking and health issues for BAT, and Carl Thompson of Hill and Knowlton, who managed smoking and health issues for the U.S. companies.

In 1958, Mr. Felton did a tour of the U.S.A. (Exhibit 1398) during which time he met with dozens of researchers and tobacco industry scientists to find out whether they believed that cigarette smoke "causes" lung cancer. He reported that "with one exception the individuals whom we met believed that smoking causes lung cancer." Mr. Thompson was among those counted as believers.

He reminded the judge that the late 1950s was the time when the expert historians hired by the tobacco companies said that a consensus had been reached amongst scientists on this issue.

"You asked at what date they would have known" Mr. Lespérance told the judge. "It cannot be later than 1958. Based on their own documents. Based on the expertise of Dr. Perrins." 

Mr. Lespérance seemed to go out of his way to show where the companies' experts had agreed with his view. He cited frequently from the report of another historian who testified for the industry, David Flaherty, to show what the companies said in this and later periods.

It was in the summer of 1958 that the head of one Canadian company made public statements and issued advertisements which acknowledged the cancer link. Patrick O'Neil Dunne of Rothmans had also written sales lectures to present to his staff which reflected the state of knowledge at that time.

This was a singular event, and happened no where else in Canada (or elsewhere). The anger of the U.S. tobacco companies at his doing so was reported in Time Magazine (Exhibit 20064.45), where the Mr. O'Neil Dunne was described by an insider as the "kid who punks out."

"Rothmans did the minimum," said Mr. Lespérance. "Once. But never again was there a similar statement made by any of the companies. It was only the once."

When they denied: 1958 to 2000

It was not long before Rothmans had been brought back into the fold of denial. Mr Lespérance showed where the companies had continued to deny that smoking caused cancer each time that a public health body reached that consensus:  the Royal College of Physicians report in 1962, The Canadian government in 1963 (Exhibit 541), the Surgeon General in 1964, the Isabelle Committee in 1969 (Exhibit 901).

These were not casual comments -- they were part of a concerted communications campaign that sent the companies' position to every Canadian doctor and created as much media attention as it could (Exhibits 1262, 1397). It was a campaign that used the services of Mr. Thompson as strategist and author of the industry briefs (denied causation) that were submitted to parliament.

(Yesterday, Mr. Lespérance had established that it was only in 2000 that the companies acknowledged causation in Canada).

Justice Riordan again cautioned against infringing parliamentary privilege by referring to comments presented in parliament. "I recognize that we don't want to enter into a debate at the Supreme Court on this," Mr. Lespérance admitted, and pointed to similar statements made outside parliament. (Exhibits 25, 258B).

What public health authorities knew: a dangerous product like no other

Mr. Lespérance did not focus on the range of illnesses caused by disease, but pointed instead to the early recognition by the Isabelle committee (Exhibit 1554.4) and others that cigarette smoking caused more preventable harm than other products or behaviours.

Even the experts hired by the defence to talk about epidemiology - Drs. Barsky, Marais and Mundt - agreed that there was no equivalent product in terms of scale of deaths caused, although they would not provide a specific estimate of how many such deaths there were in Quebec. Mr. Lespérance implied that the companies' could have conceded this earlier in the trial:  "We spent a fortune on experts that were not needed - 'there is no equivalent product', all the experts agree!"

Trying to influence public knowledge

Yesterday, Mr. Lespérance had drawn attention to the industry's research on public knowledge and attitudes about smoking and health. Today he shone the light on their attempts to modify that knowledge by encouraging people to see lung cancer as the result of weaknesses in the individual (constitutional hypothesis) or the result of other circumstances (multifactorial hypothesis). (Exhibit 1466).

He touched on the hiring of scientists like Hans Selye (Exhibit 1399) to influence public views on the benefits of smoking. "Dr. Selye got $600,000 in funding ... and afterwards even Minister Lalonde spoke about benefits of smoking to relieve stress based on this information."

The industry's early knowledge of addiction

If the industry was five years ahead of government in acknowledging causation, it had an even greater lead with respect to addiction, Mr. Lespérance suggested. He showed BAT studies from 1962 in which reported the company's researchers reported they had "found possible reasons for addiction in ... [the] steady absorption of nicotine." (Exhibit 1406).

By the mid 1980s, the importance of addiction was understood to BAT/ITL's marketers (Exhibit 1354.3), even as it was emerging as a concern of public health authorities. Some at ITL were wondering whether the company should perhaps make a product that did not have the consequences of "enslaving" consumers, although the suggestion faced criticism. (Exhibit 11). A decade later, there was a more sanguine understanding that addiction was the key to sales. (Exhibit 266)

Mr. Bexon who made this acknowledgement was not an expert in addiction, Mr. Lespérance acknowledged - "but he is the guy who became head of ITL."

Mr. Lespérance told Justice Riordan that, as they had with other health effects, the companies denied addiction, and encouraged the view that there were other reasons why people smoked. (Exhibit 262C, 487, 9756, 430).

Consumers were even further behind than government in recognizing the addictive nature of smoking, he said, citing a table from the report of the defence expert on consumer beliefs, Mr. Duch. Even by 1994, only 2% of Canadians volunteered addiction as a consequence of smoking.

The importance of controlling nicotine.

Shortly before noon, Mr. Lespérance finished his comments and gave the floor to his colleague, Pierre Boivin. The rest of the day was spent presenting the plaintiffs' view that for decades the companies have controlled the nicotine levels in their products in order to maximize their usefulness as a delivery device for nicotine.

His comments were aimed at answering the third of the set questions given to the parties by Justice Riordan: 
C Did [the companies] knowingly put on the market a product that creates dependence and did [they] chose not to use the parts of the tobacco plant containing a level of nicotine sfficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population.
Mr. Boivin began by criticising the position taken by the companies in their own written arguments, in which they downplay the pharmacological impact of nicotine and deny that it was the focus of their cigarette design efforts. This position is contradicted by the evidence, he said.

He drew attention to the 1972 view of Philip Morris that "the cigarette should be conceived not as a product, but as a package. The product is nicotine." (Exhibit 1419).  In the same year, RJR acknowledged that "the nature of the tobacco business" was a "specialized, highly ritualized and stylized segment of the pharmaceutical industry." (Exhibit 1407) BAT too saw that "the ultimate product of the tobacco industry is nicotine." (Exhibit 1243B).

The companies have also known for decades, said Mr. Boivin, that the cigarette could be altered to improve its function as a nicotine delivery system, such as by giving an additional "kick" by altering the pH level. (Exhibit 1408). Canadian researchers understood that there was an optimum amount of nicotine that should be delivered in each puff (Exhibit 805), and that a minimum of nicotine was required for consumer acceptance (Exhibit 1346).

Compensation and addiction

The role of compensation in maintaining addiction while smoking low-delivery products and in offering health reassurance is also strongly denied by the companies. Mr. Boivin seemed determined to show that this position was not tenable.

He cited several health authorities -- including the Surgeon General (Exhibit 601-2010), the Royal College of Physicians and Surgeons of London (Exhibit 1587) , the World Health Organization (Exhibit 1422, 1591) and Health Canada research (Exhibit 838B).

He also gave Justice Riordan some legal comfort in siding with the plaintiffs on this issue. He cited the Supreme Court of Canada (Exhibit 75A) as well as the views of his Superior Court colleague, Justice André Denis (who ruled in 2002 on a constitutional challenge to federal tobacco laws)  "Nicotine creates a sudden and overwhelming ("foudroyante") addiction.... Smoking brings with it no benefit apart from relieving the addiction to nicotine." (2002canlii46639 translated from French).

Mr. Boivin addressed the companies' denial that they knew that smokers could defeat the purpose of the holes in cigarette filters by drawing attention to their research on this phenomenon, and to their internal correspondence (Exhibit 346AA, 285). He reminded the judge that the publication of ITL research on the topic had been suppressed by management. (Exhibit 1603, 1603.2).

As part of a Health-Canada assembled panel, however, the scientists did agree that most smokers did not understand the function of ventilation (Expert 40346.316), as did ITL scientists in their own review of 16 years of research (Exhibit 388).

Mr. Boivin showed Justice Riordan that the position of the companies about the addictiveness of smoking, as expressed in their written arguments and through their witnesses is at odds with the admissions on their corporate web-sites. (Exhibits 1689).

With his emphasis on the views of 21st century public health authorities, Mr. Boivin provided a complement to the historic review of the morning - one which seemed aimed at establishing a contemporary concern for the product in its current use.

Feedback from the bench

Justice Riordan listened quietly to the presentations, but was far from passive.

At few times, he gave Mr. Boivin little comfort. He challenged Mr. Boivin's interpretation of certain documents. He pushed for details that were missing. He presented alternative viewpoints. (Was it not the case that the relative amount of nicotine was increased "not in order to increase the amount of addiction, but was an an effort towards a health improvement (less tar))?"  

Tomorrow the plaintiffs turn to a fifth question - Were tobacco products marketed in a misleading way?