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."

AFTERTHOUGHT 

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. 

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".