Day 72: If this is 2:30, we must be in addiction.

The second and last day of Mr. Norman Cohen's testimony at the trial of the Quebec tobacco class action suits was even faster than the first.

The witness, a former scientist with Rothmans and then with Rothmans, Benson and Hedges (RBH), continued to provide concise and apparently sincere and intelligent replies to the questions put to him by plaintiff lawyer, Pierre Boivin.

Simon Potter, the lawyer for RBH, interrupted less frequently and (mostly) stopped throwing verbal spitballs at his opponents. Justice Riordan steered the proceedings away from extraneous questions or lengthy replies with steady prompts for the "next question." There was no slowing this baby down.

At the end of the day, it was revealed that there was some quid pro quo for this sudden acceleration and those in black robes at the front of the room seemed pleased with the speed of events.

For those of us at the back of the bus, at times it felt like we were on an express way, whizzing by historic sites with no time to stop and visit. Like many such trips, it makes for a superficial travelogue. Nonetheless, here are some snapshots of the places we passed...

Stop 1: Are you sure you don't know the toxic properties of cigarettes smoke?

As sincere as Mr. Cohen has sounded, there were points where his testimony differed from the documentary record of his past life. The first document presented today (Exhibit 801) contained two such discrepancies.

Yesterday, Mr. Boivin had asked Mr. Cohen about test results he had received late in 1988 on aldehyde levels in smoke from Rothman cigarettes (Exhibit 793).

When asked if the tests were "because those constituents are considered to be carcinogenic or co-carcinogenic?", Mr. Cohen had replied "Nothing of the sort. I don't know what they have with respect to health property, I really don't understand." Nor did he think catechol (a substance created when sugar additives were burned) to be a "a co-carcinogenic component of cigarette smoke."

But in a 1987 memo Mr. Cohen was more frank with his colleagues. There he describes smoke compounds as "extremely carcinogenic," "cilia toxic" and as a "tumour initiator and promotor." Catechol, he writes then is a "co-carcinogen." (Exhibit 801).

Stop 2: Did you really give Health Canada what they asked?

Yesterday, Mr. Cohen spoke a few times about the role the federal health ministry played in the company's decisions. When Mr. Boivin asked him about the industry's apparent attempts to avoid a standard for Benzoapyrene, he said:

We never refused to do anything that was health orientated when the request came through to us from  Health and Welfare Canada. They got always what they asked from us, at all times.

But in April 1981, federal officials told Mr. Cohen and others that "it was not the case" that "the Hunter list or any other list could be used as a Canadian guideline for approved on non-approved additives.'  (Exhibit 802) The message was later repeated in writing, as was a request for toxicity testing of additives. (Exhibit 802B).

In court today, Mr. Cohen remembered the meeting and letter, and acknowledged that the testing on additives that had been requested "was not done." The company had its own reason for refusing, he said, but had not shared that reason with government.

"This in my mind was a storm in a teacup. We wanted to reserve the right to use a chemical without disclosing to our competitors. That was part of the concern about submitting specific information. ...If any chemical was on a banned list anyway we would not use it. That was our policy. If it was banned anywhere we would not use it. We did not speak to that with Health and Welfare." 

The other problem that concerned him was cost "Inhalation studies went way beyond us as a small company. We would have to spend literally millions – it was way way beyond what the normal industry was able to handle."

Rather than complying with Health Canada's request, his company over the following years made it irrelevant by phasing out the use of additives. "This type of thing is what spawned us into completely eliminating all additives including processing additives. There was no point in fighting over things that had little impact on the smoker." 

Today's exhibits related to additives: 801, 802, 802A, 802B, 802C, 803

Stop 3: Nicotine and Compensation

Exhibit 805

Mr. Cohen is more comfortable with the idea of smokers compensation than some other witnesses at this trial have been. He readily confirmed his 1987 view that the average smoker of a low tar cigarette received 33% more tar than the label indicated.  (Exhibit 805)

He noted that the brands with relatively more nicotine were more successful in the market (Exhibit 806). Although he researched ways to increase free nicotine, he does not appear to have ever been sold on the idea.

"Nicotine is absorbed within 7 seconds," he said today. "The difference between instantaneous and a little faster than that is hard to distinguish."

Moreoever, free nicotine gave "a somewhat unsmokeable product – it had harshness, a different character – it did not resemble the normal cigarette that you have on the Canadian market." 

Today's exhibits related to nicotine and compensation:  804, 805, 806, 807, 808, 809, 810, 811, 812, 813, 814, 829

Stop 4: Funding Verner Knott to use kids and psychiatric patients as guinea pigs  

Mr. Cohen was a member of the CTMC committee which decided the allocation of medical research funds. As others on the committee had, he received advice from his foreign owners on the merits of grantees.

One grantee who was clearly much in Mr. Cohen's favour was the Ottawa-based neuroelectrophysiologist, Dr. Verner Knott. "He wasn’t anti-smoking, which was a rarity among people in hospitals," said Mr. Cohen today.

Funding for Verner Knott started in 1978 (he was grateful because his grant "came at an invaluable time as we just bought a house") (Exhibit 815).

A review from Rothmans UK headquarters found Dr. Knott "sympathetic to the industry" and favoured his research proposal to measure children's brain waves and follow them over time to see if it was possible to identify who would become smokers and who would not. It also liked his idea to experiment on psychiatric patients to see if smoking helped cope with stress. (Exhbit 816A). 

Dr. Cohen still regrets that the project on children never went ahead, and in testimony identified a health purpose to it that does not seem to appear in the many records of this proposal that have circulated over the years.

"I thought this was a wonderful project. ... We knew that it involved children and would cause great controversy. Verner Knott wanted to know whether children were predisposed to smoking in their early days. The idea was to determine whether there was something that could be determined and track and would be able at an early stage to try to put them off. This was not for the benefit of industry per se, it was to the contrary."

In the end the project "fell by the wayside – it didn’t happen. Everybody ran scared."  Psychiatric patients, however, did become subjects for CTMC-funded research.

By the end of the 1980s, Mr. Cohen pushed for CTMC-directed funds to only go to research that is "likely to provide a direct benefit to the industry." (Exhibit 826) Today, he testified that this is indeed what happened. 

Today's exhibits related to research funding: 815, 816, 816A 817, 818, 819, 820, 821, 822, 823, 824, 825, 826, 827

Stop 5: I am not an actor, but I play one in court

By mid-afternoon, Pierre Boivin finally paused for breath, and it was Simon Potter's opportunity to ask Mr. Cohen questions. He did so for about an hour, and it was quite a show. 

His voice rose and fell and his arms were held out as though he had attended drama school in the 19th century. I was too mesmerized to look away and notice whether others also thought they had fallen into an episode of Rumpole of the Bailey.

Mr. Potter returned to exhibits that had been presented over the past two days and posed questions that mostly required no more than a "yes" or "no." A few times Mr. Cohen started to expand on his answer, but before he could get past a conjunction - "but" - "and" -- Mr. Potter was on to another question. 

The questions kept rolling out...

"In the real world of RBH, did you ever add nicotine back to reconstituted sheet"
"No. We used a different sheet"

"Was there ever any nicotine fortification done in the tobacco you used at RBH?"
"Oh no. Never." 

"Did you find any correlation of nicotine per puff and brand performance?"
"No we didn’t." 

"Did you ever put on the market a product that modified pH?"
"No we didn’t."

"Did you add ammonia?"
"We never added ammonia to cigarettes that were sold commercially."

"Did you ever try to put holes at places where they would be blocked?"
"Certainly not!"

Etcetera....

My colleague, Pierre Croteau, leaned over to me and whispered that Mr. Potter was playing the third period against the federal government. Sure enough, his last two points were focused on the themes that he had introduced in his opening argument seven months ago -- the "societal consensus" to allow the continued sale of cigarettes, despite their known hazards and the role of the federal government within that consensus.

Yesterday morning, Mr. Cohen had been shown a 1957 article by Ernst Wynder, Towards a solution of the tobacco-cancer problem. (Exhibit 783). Today, Mr. Potter drew his attention to a reflection Dr. Wynder made 55 years ago:

"It must become the function of the public health services of different countries to evaluate the data at hand, and if convinced by the evidence that tobacco plays a part in the development of lung cancer, decide whether lives are more important than economic considerations."

"Did any government authority come and say you must stop making cigarettes?" Mr. Potter asked Mr. Cohen. "No, this never happened."

Before long, Mr. Potter produced a document that relates to events that are featured heavily in his client's action in warranty claim against the federal government. It is a record of a meeting 35 years ago on "Less Hazardous cigarettes" (Exhibit 30001).

Mr. Cohen had attended the meeting and he was asked about the University researchers and government officials who had attended.

"Why was Agriculture Canada there?"
"Because we worked hand in glove with them."
"What's that?"
"We worked hand in glove with them."
"Hand (pause) In (pause) Glove.  Thank you."

The lawyer representing the federal government, Maurice Regnier, may have decided that discretion was the better part of valour. He chose not to ask any questions of Mr. Cohen. There was a final, less dramatic,  short round of questions by the plaintiffs and then the day was over.

Next Monday and Tuesday, a former president of Rothmans, Benson and Hedges - Mr. Patrick Fennell - will testify. On Wednesday and Thursday the trial returns to witnesses from JTI-Macdonald, with the appearance of former public relations official, Mary Trudelle. 

Day 71: A rushed day with another Northern Irish Chemist

The pedal hit the metal during today's hurried examination of Mr. Norman Cohen, the former scientific advisor to Rothmans Benson and Hedges (RBH) and the second witness from this company to appear at the trial of the Quebec class actions against Canadian tobacco companies.

Witnesses from the RBH family of companies are scheduled to have the shortest appearance at this trial. Yet the counsel leading this company's defense, Mr. Simon Potter, has presented "the press of time" for "my witnesses" as his over-riding concern. He has seemingly convinced Justice Riordan to expect an efficiency in introducing evidence that was not apparent in the first 68 days of the trial. 

The result today was heavy pressure on plaintiff counsel Pierre Boivin to move quickly through the process of introducing documents and questioning the witness. 

Seemingly sympathetic to Mr. Potter's concerns about time, Justice Riordan frequently gave a firm direction for the "next question." At one point - I believe a first for this trial - he put closure on a witness, saying crossly. "I am NOT going to give you more than 2 days with this witness. You had better use your time wisely." 

Other forms of pressure were also put on Mr. Boivin, as Mr. Potter repeatedly mocked his mispronunciation of English names. (The tobacco industry witnesses have almost universally elected to speak in English, which puts the anglophone tobacco industry lawyers at a comparative advantage over their francophone plaintiff colleagues.)

Justice Riordan allowed these comments and, to his credit, Pierre Boivin gave every appearance of being unaffected by the belittlement.

The day resulted in the production of 25 interesting documents and some fascinating testimony -- and a lot of unanswered questions.

The Irish connection

Mr. Cohen is the third witness to have worked at the Belfast plant of the former Gallahers tobacco company  before moving to Canada to take up work at a Canadian tobacco company. The other two were scientists at RJR-Maconald, John Hood, who testified on October 2nd, and Ray Howie, who testified three weeks ago.

At 75* years of age, Mr. Cohen is a decade older than his Northern Irish colleagues, although the difference would not be apparent unless you could see his very white hair and charmingly wizened face. Despite his short and slight frame, there is nothing frail in his appearance or speech. With his high cheek-bones and pinkish lined cheeks, he could easily be cast as an extra for a movie set in an Irish pub.

Norm Cohen started working at Rothmans of Pall Mall Canada in 1962, and continued to work in the company that was formed through the merger of Rothmans and Benson and Hedges in 1986. He did not fully retire until after 2000, by which time he had 38 years of work experience at the company. This may have been a man who enjoyed his work.

More from Patrick O'Neil-Dunne

Mr. Cohen is one of the few witnesses old enough to have first-hand memories of Mr. O'Neil-Dunne or the impact he had on the company. Documents filed today show the colourful Mr. O'Neil-Dunne reporting to his famous boss, Anton Rupert, on developments in Canada in 1958 on the marketing of healthy cigarettes:  (Exhibit 784).

"Our brand cannot be all things to all people. it must be either health or taste." ...
"It is almost impossible to establish another plain cigarette in a market that has already lost all its health conscious smokers to filters."...
"You said you had now confirmed the theory of cigarette brands in three dimensions, namely (a) taste to the extreme right and health to the extreme left, (b) colour psychology and (c) class distinction. This is so penetrating a discovery that we can now conquer the world!"...
"You reported that on July 5th there will be a pronouncement on smoking and lung cancer of major importance and we should be ready to capitalize on this situation with P.R."

Earlier the trial had seen the provocative 1958 ads placed by Rothmans which acknowledged cancer risks. (Exhibit 536A) Today Mr. O'Neil-Dunne's report on the roll out and fall out of that extraordinary event was made public for the first time. (Exhibit 785). Following a mea culpa, he finds a silver lining.

“One of the greatest victories which we have achieved by this release is that our product is no longer accused of mildness and those who knew it to be mild from past sampling have come back with the thought that no wonder they are so mild – Rothmans research has made them cancer free. ... There is a big difference between having a "cancer" images and having a "cancer free" image.

Twenty years later, the company was still looking at ways to consider some cigarettes less harmful than others (Exhibit 786),

Does smoking cause disease?

Virtually every witness to this trial has been asked whether he or she believes that smoking causes cancer, and whether their beliefs have changed over time. Often (like yesterday's witness, Mr. Broen), the answers  echo the directives circulated by management.

Mr. Cohen's response was a little more personal. As the one in charge of scientific affairs for his company, he received and maintained a library of scientific reports on smoking and health. Instead of clarifying this for him, it seems to have allowed him to prolong an agnostic view.

Early in the day, Mr. Boivin showed him a 1957 article written by Ernst Wynder that had been taken from his company's library that reviewed the "extensive" statistical and epidemiological evidence linking smoking to cancer and asked whether he believed this to be true.

With a soft voice and Irish lilt, the witness gave an answer that sounded heartfelt. "The date is 1957 – at that time there was serious controversy about the issue of statistical and epidemiological evidence. There were many experts – real experts of Wynder’s calibre – who cast doubt."

Justice Riordan asked what he thought at the time he worked in the company.
"I didn’t know. There was so much controversy. ... I really didn’t know. It was beyond my expertise."

Disguising any incredulity he might have felt, Pierre Boivin asked "Until you retired in 2000,  you still thought there was a controversy?"
"Yes, I think it was still there."

At other points in the day, Mr. Cohen said he believed for a long time that smoking in moderation could be a safe pleasure, and that it was not established that the chemicals in the tar from cigarette smoke caused cancer.
"At this time I did not know. There were people who smoked and died. There were people who smoked and didn’t die. There were people who didn’t smoke and died of smoking-related diseases. I didn’t know."

But after he retired in 2000, his beliefs changed - and so did his own tobacco use. ("Up until my retirement, I still smoked.")  He "began to see the weight of evidence" was such that he accepted that "tar does cause cancer."
.
Science at Rothmans and RBH

Mr. Cohen said that the research facilities at Rothmans when he joined were very modest, and that his early focus was on upgrading and expand the research capacity of the company.

Most of his work was on product development (Exhibit 782) The lab itself did no research on smoking and health issues, although Mr. Cohen initiated a library collection of such material.
"We were not equipped to handle health matters per se - We had no health doctors, no medical doctors... The health work that was being done by health chemists was very complicated and extremely expensive. I felt we needed to get a basic lab in place before anything else could be done."

He was kept informed about developments in many areas of tobacco science through regular participation in sessions organized by Rothmans Carreras (i.e. Exhibit 781), and through the receipt of regular clippings and reviews of scientific findings. (Exhibit 780, 7788, 789)

Additives in RBH cigarettes.

Mr. Cohen distinguished between production additives, such as those used in cigarette papers, filters and reconstituted tobacco, and "chemicals and flavours added to improve the salability of the product with regard to taste."

While the first type of additives were necessary to cigarette manufacture, he said, he was not a fan of the second group. They were a "waste of money" as smokers' panels were unable to taste any benefit. Some additives - like the NFE (Natural Flavour Extract) - were added at the insistence of the international owners. (A 1981 list of additives in Rothmans cigarettes at Exhibit 800).

Mr. Cohen reported that only additives that had been approved by the Hunter Committee, (Exhibit 799) by FEMA or GRAS were considered for use. (He was under the impression that the GRAS list was designed to include chemicals that were inhaled and not ingested.), and admitted he had to rely on suppliers' reports.
"This listing was given to us saying that this product met these needs for tobacco and at that point in time I had no alternative but to accept. Nobody had said there was any harm there so I had to take it."  

There was more in this busy day

In the whirlwind tour of science issues, Mr. Cohen testified about efforts to avoid setting a standard through the Canadian Consumer Standards Board for Benzoapyrene. (Exhibits 790, 791, 792), the undisclosed measurements of toxic compounds in the smoke of RBH brands (Exhibit 794, 795 795A), and tests on the harmfulness of their products. (Exhibit 796)

Another Court of Appeal defeat for the defendants

On Monday, Justice Allan Hilton of Quebec's Court of Appeal rejected a request for appeal of a June decision by Justice Riordan to allow the plaintiffs confidential access to the financial records of the tobacco companies since 2007. (The same Allan Hilton who once represented Rothmans, Benson and Hedges has not yet given the industry much comfort from his position on the Court of Appeal).

Tomorrow, Mr. Cohen testifies for a second day. On Monday, Mr. Patrick Fennell, a former president of RBH, is scheduled to testify.

*an incorrect age was posted in an earlier version of this blog