Those whose confidence in the legal system is not on a sure footing did well to stay away from Courtroom 17.09 at Montreal's Palais de Justice today. The continued cross examination of the plaintiff's expert witness in chemistry at the tobacco class action trial was not a pretty sight.
Don't get me wrong. I am sure that the women and men in black frocks at the front of the room were doing their job exactly the way it is expected of them -- but, like parliamentary question period or pig slaughtering, it's hard to watch without thinking there is something wrong with this picture.
For four and a half hours today, industry lawyers shovelled a large quantity of government documents, scientific publications, and other seemingly-credible material before the eyes of Justice Riordan. The speed with which they set their conveyor belt obscured all but selected passages, leaving the distinct (if erroneous) impression that the companies were part of a scientific consensus and were harmonious partners with government.
This material was (a) presented out of context, (b) in a way that told a story about a third party (the government) who is not in court and able to challenge the misrepresentation, (c) sprung on the other side as allowed during cross examination and (d) based on material that is secret from the rest of the world. Nonetheless, it all seemed to be an accepted part of the process and within the rules.
This is just the warm up act, I had to remind myself. Wait till their real defense starts!
"They also serve who only stand and wait."
Although only one gave evidence today, there were actually two witnesses scheduled. In addition to André Castonguay, a second witness on deck was former ITL marketer, Wayne Knox.
Mr. Knox was a member of the mid 1980s market research team that made Imperial Tobacco the envy of its competitors (see Exhibit 762). His colleague, Bob Bexon, has only testified at this trial through his writings, as he died a few years ago in a bicycling accident. Mr. Knox likely knows much that could shed light on this important period at the company. If so, we will have to wait until tomorrow to hear it.
Mr. Knox spent the day cooling his heels as he waited to testify, and was only told late in the afternoon that his services were not needed today. He seemed pretty gracious about the situation - it was he who quoted Milton. Although he comes from out of town, there are worse places to have to kill time than Old Montreal.
Another problem with the system! Like Milton, Justice is blind. In this case, she is seemingly unaware of the inconvenience caused to those who have no choice but to heed her call.
Throwing more documents at André Castonguay
After Mr. Castonguay was sworn in, Suzanne Côté quickly picked up where she had left off last Thursday. She plucked document after document from the half-dozen large binders sitting on her desk, and drilled down a fat list of questions.
Was the witness aware of the 1972 conclusion of the UK Scientific Liaison Committee that that cautioned that smokers could "without realising it, nullify any beneficial effects from change to lowe-tar yield cigarettes.”? ... Did he know that this was quoted in a letter from the Minister of Health, Marc Lalonde? Did he know about this press release from the Minister? No? Well how about this other one? Or yet another?
It went on and on.
Unlike last week, Ms. Côté put these documents on the court record and said she would later do so with those previously presented. When they are available electronically they will have Exhibit numbers 2007, 2008, 2009, etc.
The price of any fuzzy thinking or indecision - let alone bone-headed decisions - within Health Canada and Agriculture Canada over the past five decades seems to be to allow the tobacco industry to create its own narrative around these events. The plaintiffs have had access to these 160,000 documents for only a week, and were in no position to counter this mischief.
Although Mr. Castonguay often seemed little more than a ship of convenience to get these documents to court, he was not spared challenges to his report, (Exhibit 1385 and an English translation). Ms. Côté encouraged him to reconsider his conclusions regarding the industry's role in the sale of low-tar cigarettes, its failure to disclose its method of better measuring smoking behaviour, its failure to disclose experimental results on the mutagenicity of its products, etc.
From where I sat, André Castonguay seemed to withstand fairly well her attempts to rattle his confidence, to wear him down, and to trap him into admissions. But he could not protect himself from being in the awkward position of being forced to answer well crafted questions on 'surprise' material which was more often than not out of his experience and expertise.
Ms. Côté's questions took up the entire morning. She knew how long a rope she could take in her questions, and explored the distance it gave her thoroughly. At the outset of the day, Justice Riordan had weakly suggested that less might be more, but after sighing "if you insist," he accepted the situation.
It was only after lunchtime that the second cross-examination, by Doug Mitchell for JTI-Macdonald, began.
Mr. Mitchell trotted out some stinky old canards. Isn't it true that there are carcinogens in all our foods - and that there is no safe level of exposure to sunlight? Doesn't every alcoholic beverage also contain carcinogens? Aren't there benefits to nicotine - and doesn't it reduce the risk of Alzheimers or Parkinson's disease? I think I was not the only one in the room taken aback by this approach.
By the time the plaintiff's were able to respond with questions of their own (the 're-direct'), there were dozens and dozens of rabbit holes to chase down. They ignored most of them, returning to a few key messages and some rebuttal to a couple of documents.
At the end of a long day, André Castonguay was thanked by the judge and sat down. I don't know how he felt, but I was worn out and disgruntled by just watching events.
Some decisions are made out of the room
Some of this trial takes place behind the doors of private communications between lawyers. A case in point is the discussion once-anticipated for tomorrow regarding the receivability of the industry's 'pre-defense' motions.
Justice Riordan had said he wanted to hear arguments on the matter, and had required the companies to circulate their justification in writing last week. The court record which holds those files is a little out of reach, so I don't know how persuasive that justification was.
But for whatever reason, it would seem that tomorrow's discussion on these points is no longer needed. The companies will be able to present a pre-defense motion, and it will be scheduled for discussion after the plaintiffs have finished their case (i.e. in April).
As for the other motion they wanted to put forward regarding the use of exhibits entered according to the May 2nd judgement, Justice Riordan firmly shut the door without hearing a discussion. He said he had returned to the subject as often as he intended to and that the companies could "raise it in your appeals" after his rulings.
Tomorrow, some procedural issues and the postponed testimony of Mr. Wayne Knox.
Showing posts with label Castonguay. Show all posts
Showing posts with label Castonguay. Show all posts
Wednesday, 13 February 2013
Thursday, 7 February 2013
Day 110: A volley of questions to André Castonguay
Today was the first time that the tobacco companies have mounted an extended cross examination of a plaintiff's expert witness in the Montreal tobacco trials.
In the steady flow of questions that Imperial Tobacco's lawyer, Suzanne Côté, directed to chemist André Castonguay over the long day there may be hints about how her team will manage their defense once their turn comes to present their case later this spring.
Two things seemed clear. One is that Justice Riordan's wishes don't weigh very heavily in their tactical decisions. Yesterday, in return for not insisting that they move into their cross examination mid-afternoon, the judge had unmistakeably signalled that he wanted the examination of this witness to be finished today. But from the moment that Imperial Tobacco's team moved in this morning with a mover's dolly of boxes and plunked five thick binders down on the witness's desk, it was clear that they were there for the duration - and that if five documents could do the work of two, so be it.
The second message was that the removal of the federal government from their case has not altered their intention to deflect responsibility to the government for any wrong doing in the way that cigarettes were made and sold.
The long shadow of the 'action in warranty' against the federal government.
It has been almost three months since the federal government was released from this case, after the Quebec Court of Appeal disagreed with Justice Riordan's decision to keep them as co-defendants because they had dragged their heels and not made a more timely exit.
Over the four years leading up to their liberation on November 14, the federal government was obliged to provide the industry with hundreds of thousands of documents from its records.
In the normal way of things, the plaintiffs would have also received copies of these documents and would have integrated them into their databank of materials received from all three tobacco companies and, just recently, the CTMC. For unexplained reasons, this never happened. As a result, when the federal government got its discharge papers the plaintiffs found themselves in the awkward position of the industry building its case on documents the plaintiffs had no access to.
I had been puzzled about how the plaintiffs could be entitled to receive these documents after the federal government had no official role in the case. It is clear from reports such as that written by industry witness, Robert J. Perrins, that these records included "advice to the Minister" and other files that cannot normally be shared with third parties or the public. (Believe me, I've tried!).
This morning the court learned of the creative legal solution that had been found to allow the entire record to be shared with the plaintiffs. The Justice Canada lawyer who had been responsible for the case, Nathalie Drouin, arrived at court with both a CD and a subpoena in her hand. The CD contained electronic copies of 650,000 documents spanning 3,400,000 pages of material.
It was the subpoena served by the plaintiffs that had brought Ms. Drouin to court and that proved to be they key for the materials to be handed over. She brought with her a draft of the directions she wanted Justice Riordan to issue that would require the government to release the material and would require the plaintiffs to treat it with the usual confidentiality. Justice Riordan obligingly read out these negotiated "orders". All that was missing was the gift-wrapping.
The job done, Natalie Drouin and her colleagues left the room. Had they stayed, they would have heard how important these government records seem to be to Imperial Tobacco's defense.
Suzanne Côté's rapid-fire cross-examination of André Castonguay.
For the most part, the industry legal teams switch-up their bench, and make sure that the lawyers directing the play have the same mother tongue as the witness' testimony. As most of the former employees who have been witnesses have chosen to speak in English (even if their mother tongue is French), this has meant that the Ontario-based lawyers have usually lead Imperial Tobacco's defense in this case.
The plaintiff's expert witnesses from Quebec have naturally chosen to testify in French, and so the Quebec lawyers are front and centre at this part of the trial. Suzanne Côté today moved to the driver's seat, a place she frequently holds during Imperial Tobacco's legal arguments, but less often for witness testimony.
Although cordial and professionally polite, her ferocious energy, stamina and obvious smarts make her a little intimidating to watch. I am sure it is even harder to stand three feet away from this energy-centre. I don't think questions could have been been asked any more quickly, and I doubt that even a teenage girl could have out-talked her today.
As she kept up her rat-a-tat-tat of questions, Ms. Côté barely stopped for a sip of water or to shift her weight on her (stiletto) heels. She did not need to pause to think and she segued smoothly from answer to question, document to document, topic to topic.
André Castonguay must have felt like he was trapped in a batting cage with a pitching machine set on "fast". There was indeed a machine like quality to her questions in that they were dispassionate and without the animosity or false-warmth that is sometimes shown by her colleagues.
Everyone in the room - including the plaintiff lawyers -- seemed to sit back and watch, as though they knew there was no stopping her. A couple of times Bruce Johnston drew Justice Riordan's attention to the fact that her questions were trespassing over the boundaries that were repeatedly set for their side (i.e. questions involving events after 2000, or events in other jurisdictions). Justice Riordan brushed these aside, but with a bearing that suggested he just wanted the day to be over, and that he felt the best course of action was to ride it out. He took few notes, and asked only one or two clarifying questions of his own.
Trying to blur the lines between directing minds and regulating bodies
André Castonguay's report (Exhibit 1385 with an English translation) is a comprehensive review of many chemical-related aspects of cigarettes over many decades. In it, he contrasts the state of knowledge of independent scientists or health authorities with the scientific knowledge within the industry. Because he report was written in 2005, before the Canadian companies disclosed any documents to the plaintiffs, it relies on documents pulled from Guildford or from the Legacy site.
Very little of Mr. Castonguay's report was addressed by Ms. Côté's questions. Instead, she used his explanation of smoking machines, the sorry chapter of light cigarettes and other portions of his report as spring boards to flash before the court dozens of documents, many of which were pulled from the still-secret trove of government documents.
One theme of her questions was the suggestion that the company was on the right side of history on some scientific errors, and that its enlightened view was ignored or pushed aside by health authorities. For example:
* She showed almost illegible copies of news stories from the Ottawa Citizen and London Free Press in the early 1960s where Imperial Tobacco President, JM Keith, said that smoking machines were unreliable as they did not reflect the way cigarettes were actually smoked. "There are too many subjective factors in the smoking of any product, Mr. Keith said, citing the speed at which a person smokes, how much he smokes and the number of puffs." (London Free Press)
* She displayed a book on "Smoking Behaviour" published by BAT Scientist, in which SJ Green concludes "[I]t is doubly unfortunate that machine smoking under fairly arbitrary conditions, probably different from those of any known human smoker, should be so often and so wrongly regarded as equivalent to human smoking.”
This theme was repeated in a series of questions about some of the more notorious chemicals found in cigarette smoke, tobacco specific nitrosamines. She showed documents that suggested that (a) Canadian companies had lower levels of these compounds than U.S. blends, (b) levels were further reduced in the 2000s as a result of industry changes to curing practices, (c) the federal government refused to endorse these changes when asked to and (d) IARC didn't even include these chemicals on the list of "known human carcinogens" until 2007.
Another series of government documents seemed designed to establish that the federal government was not "ignorant" when it recommended low-tar cigarettes, but that it had pushed for the reduction of tar in a considered, science-based, and consistent fashion. Press release after press release from the 1970s was flashed quickly across the screens.
In a similar fashion, recommendations by the Canadian government and some independent scientists to reduce the number of cigarettes smoked were the basis of questions pressing Dr. Castonguay to acknowledge that any industry suggestion to "smoke in moderation" was supported by science and government.
Dr. Castonguay didn't have too much choice but to keep his replies short. He resisted her attempts to blur the line between the quantity of a smoke "yields" to a machine and the actual "delivery" to a smoker. He firmly maintained the distinction between toxicological prudence in reducing exposure to harmful substances and epidemiological evidence that doing so will result in measurable benefit. Often his answers merely served to validate her claims about the historic existence of views that support her company's defense.
By the end of the day, Ms. Côté's work seemed far from completed and Rothmans, Benson and Hedges was still in queue with a few hours of questions, as well as JTI-Macdonald's "few". Mr. Castonguay was asked to return next Wednesday.
The road ahead
Only somewhat bleary-eyed after the day's romp through dozens of documents, none of which were put into evidence, Justice Riordan opened discussion on the task ahead of him next week when he will be asked to rule on whether the industry should be allowed to propose some "pre-defense" motions. (Debate on the subject is scheduled for next Thursday, and written arguments were to have been circulated among the parties last week).
He tried without success to get the plaintiffs to signal how they would respond to the industry's arguments that pre-defense motions should be receivable (apparently the written pleadings offer some precedents). Mr. Lespérance's response was focused more on the can of worms that would be opened if such motions were discussed, such as his own team's interest in returning to a decision to strike out some of the defense claims that was put on ice earlier in the process.
It would appear that next Thursday, this case will come to another fork in the road!
The next medical expert witness to appear in this trial, Dr. Louis Guertin, will testify on Monday and Tuesday. On Wednesday, Dr. Castonguay will return and former ITL marketer, Wayne Knox, may be called as a fact witness.
In the steady flow of questions that Imperial Tobacco's lawyer, Suzanne Côté, directed to chemist André Castonguay over the long day there may be hints about how her team will manage their defense once their turn comes to present their case later this spring.
Two things seemed clear. One is that Justice Riordan's wishes don't weigh very heavily in their tactical decisions. Yesterday, in return for not insisting that they move into their cross examination mid-afternoon, the judge had unmistakeably signalled that he wanted the examination of this witness to be finished today. But from the moment that Imperial Tobacco's team moved in this morning with a mover's dolly of boxes and plunked five thick binders down on the witness's desk, it was clear that they were there for the duration - and that if five documents could do the work of two, so be it.
The second message was that the removal of the federal government from their case has not altered their intention to deflect responsibility to the government for any wrong doing in the way that cigarettes were made and sold.
The long shadow of the 'action in warranty' against the federal government.
It has been almost three months since the federal government was released from this case, after the Quebec Court of Appeal disagreed with Justice Riordan's decision to keep them as co-defendants because they had dragged their heels and not made a more timely exit.
Over the four years leading up to their liberation on November 14, the federal government was obliged to provide the industry with hundreds of thousands of documents from its records.
In the normal way of things, the plaintiffs would have also received copies of these documents and would have integrated them into their databank of materials received from all three tobacco companies and, just recently, the CTMC. For unexplained reasons, this never happened. As a result, when the federal government got its discharge papers the plaintiffs found themselves in the awkward position of the industry building its case on documents the plaintiffs had no access to.
I had been puzzled about how the plaintiffs could be entitled to receive these documents after the federal government had no official role in the case. It is clear from reports such as that written by industry witness, Robert J. Perrins, that these records included "advice to the Minister" and other files that cannot normally be shared with third parties or the public. (Believe me, I've tried!).
This morning the court learned of the creative legal solution that had been found to allow the entire record to be shared with the plaintiffs. The Justice Canada lawyer who had been responsible for the case, Nathalie Drouin, arrived at court with both a CD and a subpoena in her hand. The CD contained electronic copies of 650,000 documents spanning 3,400,000 pages of material.
It was the subpoena served by the plaintiffs that had brought Ms. Drouin to court and that proved to be they key for the materials to be handed over. She brought with her a draft of the directions she wanted Justice Riordan to issue that would require the government to release the material and would require the plaintiffs to treat it with the usual confidentiality. Justice Riordan obligingly read out these negotiated "orders". All that was missing was the gift-wrapping.
The job done, Natalie Drouin and her colleagues left the room. Had they stayed, they would have heard how important these government records seem to be to Imperial Tobacco's defense.
Suzanne Côté's rapid-fire cross-examination of André Castonguay.
 |
| Suzanne Côté |
The plaintiff's expert witnesses from Quebec have naturally chosen to testify in French, and so the Quebec lawyers are front and centre at this part of the trial. Suzanne Côté today moved to the driver's seat, a place she frequently holds during Imperial Tobacco's legal arguments, but less often for witness testimony.
Although cordial and professionally polite, her ferocious energy, stamina and obvious smarts make her a little intimidating to watch. I am sure it is even harder to stand three feet away from this energy-centre. I don't think questions could have been been asked any more quickly, and I doubt that even a teenage girl could have out-talked her today.
As she kept up her rat-a-tat-tat of questions, Ms. Côté barely stopped for a sip of water or to shift her weight on her (stiletto) heels. She did not need to pause to think and she segued smoothly from answer to question, document to document, topic to topic.
André Castonguay must have felt like he was trapped in a batting cage with a pitching machine set on "fast". There was indeed a machine like quality to her questions in that they were dispassionate and without the animosity or false-warmth that is sometimes shown by her colleagues.
Everyone in the room - including the plaintiff lawyers -- seemed to sit back and watch, as though they knew there was no stopping her. A couple of times Bruce Johnston drew Justice Riordan's attention to the fact that her questions were trespassing over the boundaries that were repeatedly set for their side (i.e. questions involving events after 2000, or events in other jurisdictions). Justice Riordan brushed these aside, but with a bearing that suggested he just wanted the day to be over, and that he felt the best course of action was to ride it out. He took few notes, and asked only one or two clarifying questions of his own.
Trying to blur the lines between directing minds and regulating bodies
André Castonguay's report (Exhibit 1385 with an English translation) is a comprehensive review of many chemical-related aspects of cigarettes over many decades. In it, he contrasts the state of knowledge of independent scientists or health authorities with the scientific knowledge within the industry. Because he report was written in 2005, before the Canadian companies disclosed any documents to the plaintiffs, it relies on documents pulled from Guildford or from the Legacy site.
Very little of Mr. Castonguay's report was addressed by Ms. Côté's questions. Instead, she used his explanation of smoking machines, the sorry chapter of light cigarettes and other portions of his report as spring boards to flash before the court dozens of documents, many of which were pulled from the still-secret trove of government documents.
One theme of her questions was the suggestion that the company was on the right side of history on some scientific errors, and that its enlightened view was ignored or pushed aside by health authorities. For example:
* She showed almost illegible copies of news stories from the Ottawa Citizen and London Free Press in the early 1960s where Imperial Tobacco President, JM Keith, said that smoking machines were unreliable as they did not reflect the way cigarettes were actually smoked. "There are too many subjective factors in the smoking of any product, Mr. Keith said, citing the speed at which a person smokes, how much he smokes and the number of puffs." (London Free Press)
* She displayed a book on "Smoking Behaviour" published by BAT Scientist, in which SJ Green concludes "[I]t is doubly unfortunate that machine smoking under fairly arbitrary conditions, probably different from those of any known human smoker, should be so often and so wrongly regarded as equivalent to human smoking.”
This theme was repeated in a series of questions about some of the more notorious chemicals found in cigarette smoke, tobacco specific nitrosamines. She showed documents that suggested that (a) Canadian companies had lower levels of these compounds than U.S. blends, (b) levels were further reduced in the 2000s as a result of industry changes to curing practices, (c) the federal government refused to endorse these changes when asked to and (d) IARC didn't even include these chemicals on the list of "known human carcinogens" until 2007.
Another series of government documents seemed designed to establish that the federal government was not "ignorant" when it recommended low-tar cigarettes, but that it had pushed for the reduction of tar in a considered, science-based, and consistent fashion. Press release after press release from the 1970s was flashed quickly across the screens.
In a similar fashion, recommendations by the Canadian government and some independent scientists to reduce the number of cigarettes smoked were the basis of questions pressing Dr. Castonguay to acknowledge that any industry suggestion to "smoke in moderation" was supported by science and government.
Dr. Castonguay didn't have too much choice but to keep his replies short. He resisted her attempts to blur the line between the quantity of a smoke "yields" to a machine and the actual "delivery" to a smoker. He firmly maintained the distinction between toxicological prudence in reducing exposure to harmful substances and epidemiological evidence that doing so will result in measurable benefit. Often his answers merely served to validate her claims about the historic existence of views that support her company's defense.
By the end of the day, Ms. Côté's work seemed far from completed and Rothmans, Benson and Hedges was still in queue with a few hours of questions, as well as JTI-Macdonald's "few". Mr. Castonguay was asked to return next Wednesday.
The road ahead
Only somewhat bleary-eyed after the day's romp through dozens of documents, none of which were put into evidence, Justice Riordan opened discussion on the task ahead of him next week when he will be asked to rule on whether the industry should be allowed to propose some "pre-defense" motions. (Debate on the subject is scheduled for next Thursday, and written arguments were to have been circulated among the parties last week).
He tried without success to get the plaintiffs to signal how they would respond to the industry's arguments that pre-defense motions should be receivable (apparently the written pleadings offer some precedents). Mr. Lespérance's response was focused more on the can of worms that would be opened if such motions were discussed, such as his own team's interest in returning to a decision to strike out some of the defense claims that was put on ice earlier in the process.
It would appear that next Thursday, this case will come to another fork in the road!
The next medical expert witness to appear in this trial, Dr. Louis Guertin, will testify on Monday and Tuesday. On Wednesday, Dr. Castonguay will return and former ITL marketer, Wayne Knox, may be called as a fact witness.
Wednesday, 6 February 2013
Day 109: André Castonguay explains tobacco chemistry
André Castonguay, Ph.D. was the second expert witness this week to be presented to Justice Riordan by the plaintiffs in the Quebec tobacco class class action suits.
Like Dr. Alain Desjardins, who testified earlier in the week, Mr. Castonguay is a Quebec native. He received his undergraduate degrees as well as his Ph.D. (in organic chemistry) from Laval University in Quebec City, where he was also a professor in the School of Pharmacy until his retirement in 2010.
There are only a handful of Canadians who have a depth of research experience in tobacco science equal to that of André Castonguay. He began his 30 year research career in tobacco chemistry at the then-renowned American Health Foundation, working as a bench scientist on issues such as "Synthesis of the tobacco-specific nitrosamines, NNN and NNK labeled with 14C,3H or 2H.'
It was to Mr. Castonguay that the federal government turned when looking for experts during their defense against the industry challenges to the 1988 and 1997 tobacco laws. Even after the rapid growth of tobacco researchers, his expertise in the public health components of tobacco chemistry is unrivaled in Canada.
 |
| Afternoon recess: André Castonguay waits in the corridor as the industry lawyers caucus behind him. |
There are only a handful of Canadians who have a depth of research experience in tobacco science equal to that of André Castonguay. He began his 30 year research career in tobacco chemistry at the then-renowned American Health Foundation, working as a bench scientist on issues such as "Synthesis of the tobacco-specific nitrosamines, NNN and NNK labeled with 14C,3H or 2H.'
It was to Mr. Castonguay that the federal government turned when looking for experts during their defense against the industry challenges to the 1988 and 1997 tobacco laws. Even after the rapid growth of tobacco researchers, his expertise in the public health components of tobacco chemistry is unrivaled in Canada.
André Castonguay also has the rare gift of explaining science in an interesting and understandable way. The official (French) version of his report is now Exhibit 1385, but an English translation is also available. This report is an excellent primer on the development of knowledge about the constituents of cigarettes (including nicotine), both within the industry and in the public in the outside scientific and health communities.
The attempt to disqualify André Castonguay
Unlike the two previous Quebec-based expert witnesses, Christian Bourque and Alain Desjardins, today's witness faced a long barrage of hostile questions about his qualifications.
From the moment that Jean-Francois Lehoux rose to present the industry's concerns during the "voir dire" of his qualifications, it was clear that Mr. Castonguay was another expert witness to pass the "scream test" of industry opposition.
While no where near as aggressive in his style of questioning as some of his colleagues on the industry's side of the room, Mr. Lehoux was nonetheless much more forceful today in his tone and more pointed in his questions than he had been earlier in the week with Dr. Desjardins.
He put on a stern face, and asked his questions in a more accusatory way, repeating them more loudly if he was not getting the yes/no question he wanted. For almost two hours he asked variants of the same question. "Do you have any direct experience in [subject x]? Have you published in peer-reviewed journals on [subject x]? Is what you wrote [on subject x] entirely based on your reading of other people's research."
Through these questions the court learned that André Castonguay had no such direct experience in cigarette ventilation, filters, tobacco growing, design of smoking machines, cigarette paper, benzo-a-pyrene, mercury, tobacco cultivars, pharmacology, the Delhi Research Centre and the people who worked in it, etc. etc. And of the 4,000 or so chemicals in tobacco smoke, his research focus had been on nitrosamines.
The unrelenting drip, drip, drip of Mr. Lehoux's questions became like a Chinese water torture, so much so that the plaintiffs abandoned their usual approach of letting their witnesses fend for themselves in these unpleasant sessions. Mr. Johnston asked that the questions at least be linked to areas of the report as "we have spent a lot of time on his qualifications in areas that we have not asked for him to be qualified."
Mr. Lehoux asked for André Castonguay to leave the room before explaining that it was their view that he "goes all over the place in his report" and told Justice Riordan that he wanted "to make sure that you are clear on what you are qualifying. ... is he a jack of all trades or an expert?"
The attempt to disqualify André Castonguay
Unlike the two previous Quebec-based expert witnesses, Christian Bourque and Alain Desjardins, today's witness faced a long barrage of hostile questions about his qualifications.
From the moment that Jean-Francois Lehoux rose to present the industry's concerns during the "voir dire" of his qualifications, it was clear that Mr. Castonguay was another expert witness to pass the "scream test" of industry opposition.
While no where near as aggressive in his style of questioning as some of his colleagues on the industry's side of the room, Mr. Lehoux was nonetheless much more forceful today in his tone and more pointed in his questions than he had been earlier in the week with Dr. Desjardins.
He put on a stern face, and asked his questions in a more accusatory way, repeating them more loudly if he was not getting the yes/no question he wanted. For almost two hours he asked variants of the same question. "Do you have any direct experience in [subject x]? Have you published in peer-reviewed journals on [subject x]? Is what you wrote [on subject x] entirely based on your reading of other people's research."
Through these questions the court learned that André Castonguay had no such direct experience in cigarette ventilation, filters, tobacco growing, design of smoking machines, cigarette paper, benzo-a-pyrene, mercury, tobacco cultivars, pharmacology, the Delhi Research Centre and the people who worked in it, etc. etc. And of the 4,000 or so chemicals in tobacco smoke, his research focus had been on nitrosamines.
The unrelenting drip, drip, drip of Mr. Lehoux's questions became like a Chinese water torture, so much so that the plaintiffs abandoned their usual approach of letting their witnesses fend for themselves in these unpleasant sessions. Mr. Johnston asked that the questions at least be linked to areas of the report as "we have spent a lot of time on his qualifications in areas that we have not asked for him to be qualified."
Mr. Lehoux asked for André Castonguay to leave the room before explaining that it was their view that he "goes all over the place in his report" and told Justice Riordan that he wanted "to make sure that you are clear on what you are qualifying. ... is he a jack of all trades or an expert?"
Despite the judge's appeal to link the questions to the report, the questions continued painfully, like a tape on an endless loop. According to Mr. Lehoux, André Castonguay was not an expert, had never published and relied on reading in areas of oncology, genetics, pathology, compensation, hole-blocking by smokers, cigarette elasticity. On and on it went.
No one expects the Spanish Inquisition
Finally, Mr. Lehoux changed tack. As though it were a rabbit out of a hat, he produced a curriculum vitae that André Castonguay had forwarded as a potential witness in the (failed) Sparkes class action in Newfoundland. In this resumé, he had listed himself as a “tobacco chemist and tobacco control advocate.” (Exhibit 30011).
Are you an advocate? Mr. Lehoux accused. Without too much apparent concern, André Castonguay agreed that based on the Oxford dictionary definition they provided, he was indeed an advocate.
In his next question, Mr. Lehoux went even further. "Did you join the religion against tobacco use?" (In translating it to English, it sounds even more inquisitorial!)
"Well, yes" said André Castonguay, unapologetically. "I am for the control of tobacco. I believe in interventions to reduce tobacco. It is a personal belief. If one is religious it is because one is convinced. I am strongly convinced about tobacco control."
This answer was not precise enough for Mr. Lehoux, who asked again, more forcefully. "Did you join the religion against tobacco use?"
"Yes."
"Yes."
Doctus cum libro?
Finally, Mr. Lehoux wound up his questions, and after a few short questions from RBH lawyer, Doug Mitchell, the companies began their pitch to have most of his expert report struck down.
"The only conclusions in his report that are related to his personal experience are those that are related to nitrosamines," said Mr. Lehoux. "Everything else is based on his reading." The court should not rely on book-learning (doctus cum libro), he said, especially from someone who in his interpretation of industry documents is playing the role of an advocate or even a judge.
In a flourish of unacknowledged irony, after taking two hours to ask questions that could have been answered in one-tenth the time, Mr. Lehoux concluded that "it was not a good use of the court's time to spend two, there or four days listening to his exploration in areas outside of his expertise."
Mr. Castonguay is qualified and his report is accepted
When the court resumed after the lunch break, Justice Riordan said he did not have to hear any arguments from the plaintiffs before rejecting the industry's request. He was unusually peremptory, and his ruling - despite the carefully worded statement about their ability to raise concerns in their later arguments-- had the feeling of being a rebuke.
No safe level of exposure
It is not clear whether Pierre Boivin intended to ask only a few questions to his witness, or whether he changed his strategy to respond to the day's events. For whatever reason, he asked Mr. Castonguay a small handful of questions that fit closely to his background as a chemist.
He began by asking Mr. Castonguay to describe the nature of tobacco-specific nitrosamines, such as NNN and NNK, and their discovery in tobacco smoke in the mid 1970s. Dr. Castonguay explained that these potent carcinogens would not be in cigarette smoke if the nicotine were removed from tobacco before cigarettes were manufactured.
He asked whether there was a safe level of exposure to cigarette smoke, and Mr. Castonguay referred to the 1981 Surgeon General report which concludes at the outset that "there is no safe cigarette and no safe level of consumption."
He reminded the court of the testimony last September of JTI-Macdonald Scientist, Ray Howie, who said that the "tiny tiny amounts, if it's not nanograms, it's picograms" were "so small that it really doesn't harm anyone."
"Dr. Castonguay, how many molecules of benzo-a-pyrene are there in a nanogram?"
"There would be trillions of molecules of benzo-a-pyrene. A picogram is very small. It's not visible. but it nonetheless contains an enormous number of molecules."
Mr. Castonguay was given the opportunity to comment on some responses provided by Rothmans, Benson and Hedges to the questions it was required to answer during this trial, and their claim that "the degree of risk increases with an increased dose of exposure to a carcinogen beyond a certain dose." He referred back to the work of the International Agency for Research on Cancer (Monograph 83) to support his view that there are some carcinogens in smoke for which there is not a threshold value below which exposure is "safe."
And then Mr. Boivin sat down. It was 3:00 o'clock.
The tobacco companies were clearly non-plussed. They were not prepared to start their cross-examination, and they had no apparent desire to spend 90 minutes extemporizing. For fifteen minutes they caucused furiously in the hallway, before returning to report that they were prepared to begin their cross examination tomorrow, but were not sure they would be able to complete it in the day allotted.
"Your efforts to make sure it is finished tomorrow would be appreciated," said Justice Riordan in a tone that makes me think that it is highly likely that tomorrow will be Mr. Castonguay's last opportunity to offer his views on tobacco chemistry.
Tomorrow is the last sitting day this week. Mr. Castonguay will be cross-examined by the defense legal teams.
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